author: BATEMAN, Justice.

text:
    Chesley E. DAVIS et ux., Appellants, v. Mrs. Ed CROCKETT et vir, Appellees.
    No. 16637.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 26, 1965.

      Moses & Truett, McKinney, for appellants.
    Boyd, Veigel & Gay, McKinney, for ap-pellees.
   BATEMAN, Justice.

The appellants Chesley E. Davis and wife appeal from a judgment granting the ap-pellees Mrs. Ed Crockett and her husband specific performance of an oral contract for the sale of a vacant lot in the town of Prosper, Texas. Appellants denied having made the contract and also pled the Statute of Frauds and the two and four year statutes of limitation. The jury found in response to special issues: (1) on or about December 17, 1957 Crockett paid $315 to Davis; (2) on such occasion Davis agreed to sell and Crockett agreed to buy the lot in question for $315; (3) which was the sum agreed upon as the full purchase price of the lot; (4) Crockett took possession of the lot immediately or soon after the $315 was paid to Davis; (5) Crockett and his wife made permanent and valuable improvements on the lot after taking possession; (6) which improvements were made with the consent and/or acquiescence of Davis; and (7) the $315 paid by Crockett to Davis was not intended as a deposit of escrow money for an option to purchase the lot.

A leading case setting forth the essential elements of a valid parol contract for the sale of land is Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216, wherein it was held that:

“ * * * to relieve a parol sale of land from the operation of the statute of frauds, three things were necessary: 1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced.”

It will be seen from the verdict that ap-pellees obtained jury findings establishing those essentials. Appellants seek reversal on four points of error.

By their first point appellants contend that the facts of this case make applicable the general rule of the Statute of Frauds, Vernon’s Ann.Civ.St., Art. 3995, making unenforceable contracts for the sale of land unless in writing and signed by the party to be charged therewith, and not the exception enunciated by Hooks v. Bridge-water, supra. They deny that appellees took actual possession of the lot and made permanent valuable improvements thereon.

However, the evidence is undisputed that in the year 1957 Davis bought certain lots in the town of Prosper forming a tract 180 feet wide and 140 feet deep, for a total consideration of $630; that in October 1957 Davis began the construction of his home on the east half of the tract, leaving the west half vacant, Davis having divided the tract “in the center” making two lots 90 feet in width; that the relationship between the wives of Davis and Crockett is that Mrs. Crockett’s mother is the stepmother of Mrs. Davis, both Mrs. Crockett and Mrs. Davis having been reared in the same home “just like sisters”; that in December 1957 Crockett gave Davis a check for $315, which Davis cashed.

The testimony as to the purpose of the check is conflicting; Davis testified that Crockett wanted to advance the $315 to hold the lot so that in case something should happen to him his wife would have a place on which to build a home; that he told Crockett it wasn’t necessary, that he would hold the lot without the check, but that Crockett insisted on giving it and that he “took it with the understanding that Mrs. Crockett was to use the lot in case of emergency to build her a home on * * * or his money would be refunded,” but that the total purchase price was not agreed on or discussed. Crockett testified that on December 17, 1957 Davis agreed to sell him the lot on the west side for half the cost of the entire tract, or $315, that he gave Davis the check for $315, and that Davis promised to give them a written statement and a deed “in the very near future.” Mrs. Crockett corroborated this testimony.

There was testimony that in 1958 Mr. and Mrs. Crockett met with Mr. and Mrs. Davis on the lot in question, and while all four were there Crockett dug a trench a few inches deep and a few inches wide on the line between the two lots for the entire length of 140 feet; that Mrs. Crockett and Mrs. Davis followed along setting out flower bulbs in the trench. Crockett testified that Davis criticized this method' of planting the bulbs, stating that when Crockett would come in with the maintainer to grade the lot he would destroy them, but Crockett replied that he would be careful not to do so. Crockett also testified that he had the lot in question plowed and mowed, that he used his own tractor and maintainer, driving the tractor and hiring a man to ride the maintainer; that when they plowed it they threw the dirt to the. center because he “wanted the lot higher in the center on the slope of the hill,” all of which was in the spring of 1958, about six months after the check had been given; that the first thing they did was to clear some bushes off of the back of the lot, for which he hired one Les Martin and that he and Martin removed from the lot some persimmon sprouts, willows, ash and some redwoods, together with unwanted weeds like Johnson grass, sunflowers, etc.; that they cleaned the lot off before they started leveling it; that the bulbs were put in about November 1, 1958, and that he supervised the working on the lot from the day he bought it, killing the noxious weeds thereon and having it one-wayed or plowed a dozen times, and that he considered what he did as major improvements on the lot; that he knows the value of farm labor and the customary prices paid for farm equipment, and that the work he has done on the lot had a minimum value of $100. Davis testified that he did not know of the grubbing of stumps and plowing and mowing which Crockett said he had done or had had done, but that he thought that Crockett had had the county “to go over it with a maintainer. It wasn’t level.” Crockett also testified that both Mr. and Mrs. Davis saw him working on the lot in the years 1958 and 1959; that he bought the property to build a home on it.

We think the evidence outlined above was sufficient to support the jury findings that Crockett took possession of the lot in question soon after the giving of the $315 check and made permanent and valuable improvements of the land with the consent of the seller.

In Davis v. Douglas, Tex.Com.App., 1929, 15 S.W.2d 232, where the jury had found that the donee of a tract of land had made permanent and valuable improvements of the value of $30, consisting of repairing the garden fence, cleaning out the well, and placing some new blocks under the gallery of the dwelling house, the value of the lot and improvements at the time of the gift being $800, the court said “it cannot be said, as a matter of law, that said improvements were of such nature and value as to require a court of equity to disregard them in determining whether or not the parol gift should be enforced.”

In Dawson v. Tumlinson, Tex.Civ.App., 236 S.W.2d 160, reversed on other grounds 150 Tex. 451, 242 S.W.2d 191, it was held that evidence of improvements on the property consisting of repairing the roof to the gallery and repairing the water pump, at the total cost of $75, was sufficient to raise' a jury question as to whether the improvements were substantial.

The primary purpose of the Statute of Frauds is of course to prevent fraud and perjury in certain types of transactions by requiring the agreement of the parties to be evidenced by a writing signed by them. But, as pointed out in Hooks v. Bridge-water, supra, the strict enforcement of the general rule of the statute can itself result in fraud. It was due to the concern of the equity courts to prevent the perpetration of fraud that the exception relied on by ap-pellees herein was created. We hold that there is sufficient evidence of probative force in this record to support the jury findings of the essential elements of that exception. Appellants’ first point is therefore overruled.

By their second point of error on appeal appellants contend that the cause of action, if any, was barred by the two and four year statutes of limitation. Appellees filed their original petition on September 1, 1959 alleging a valid contract of sale for the lot in question and praying for specific performance thereof. They thereafter filed four amended petitions. In the original petition it was not alleged whether the contract was oral or in writing. In the first amended original petition it was alleged that the check for $315 constituted a memorandum in writing since the defendant Davis endorsed the same, bringing the case within the statute. It was not until the filing of their second amended original petition on September 28, 1960 that it was specifically alleged that the contract was an oral one. In their third amended original petition, filed October 29, 1960, they alleged an oral contract and the making of valuable and permanent improvements with knowledge and consent of appellants. It is argued that appellees have shifted their causes of action and changed the nature of the lawsuit so that they should not be afforded the protection of Vernon’s Ann.Civ.St, Art. 5539b. We do not agree with appellants.

In the original petition and all four amended petitions appellees alleged a contract of sale and prayed for specific performance. Only one contract or meeting of the minds was alleged, regardless of how that agreement was reached, and regardless of whether it was evidenced by a writing signed by the parties or by testimony of their oral statements. We think appellees were entitled to the protection of Art. 5539b, V.A.C.S., the pertinent portion of which is:

“Whenever any pleading is filed by any party to a suit embracing any cause of action, cross-action, counterclaim, or defense, and at the time of filing such pleading such cause of action, cross-action, counterclaim, or defense is not subj ect to a plea of limitation, no subsequent amendment or supplement changing any of the facts or grounds of liability or of defense shall be subject to a plea of limitation, provided such amendment or supplement is not wholly based upon and grows out of a new, distinct or different transaction and occurrence.”

Appellees contend that the contract was not actually breached until July 27, 1959, but it is not necessary for us to determine the correctness of that contention because the original petition was filed within two years after the making of the contract, making both limitation statutes obviously inapplicable. Global Corporation v. Vincent, 156 Tex. 398, 295 S.W.2d 640. Appellants’ second point of error is overruled.

Appellants’ third point of error is as follows: “This cause should be reversed because the verdict and judgment are contrary to, and not supported by the evidence.”

This point fails to direct our attention to the errors relied upon, as required by Rule 418, Texas Rules of Civil Procedure. In McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643, 646, the point asserted that “the trial court erred in rendering judgment that the plaintiff take nothing, since the judgment of the court is contrary to the law and the evidence,” and the Supreme Court, speaking through Mr. Justice Walker, said: “It is so general as to encompass any and every error committed by the trial court, and therefore means nothing.”

Pursuant to the rule announced in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482, however, we have studied the statement and argument under this point but find nothing there to direct our attention to any specific error. We therefore overrule the third point of error as failing wholly to comply with Rule 418, T.R.C.P.

By their fourth point of error appellants seek reversal because the land was their homestead at the time of the alleged oral contract. They cite Norwood v. Childress, Tex.Civ.App., 250 S.W.2d 927, wr. ref. n. r. e. as holding generally that a parol agreement to convey a part of a homestead is void because of noncompliance with Art. 1300, V.A.C.S. requiring the joinder and separate acknowledgment of the wife in any conveyance of the homestead. We conclude that this point is without merit for several reasons.

The contention that the lot in question was a part of appellants’ homestead appears for the first time in appellants’ brief. It is not mentioned in any of their pleadings, nor in their amended motion for new trial, nor in the list of “Assignments of Error” appearing at the back of their brief. The constitutional and statutory safeguards against improvident disposal or dissipation of the homestead constitute a privilege which may he waived by failure to assert the same in the trial court by pleading and proof. Note the following from 28 Tex.Jur.2d, Homesteads, p. 380, §9:

“In any case, where the homestead right is relied on, either as a cause of action, or as a defense, the homestead character of the property must be pleaded and proved. Failure to do so may result in the loss of the right.”

Not having raised the issue by their pleadings, the appellants must be held to have waived the right to defend on the ground of noncompliance with Art. 1300, V.A.C.S. Shonaker v. Citizens’ Loan & Investment Co., Tex.Civ.App., 8 S.W.2d 566, 568, wr. ref.; Ferguson v. Smith, Tex.Civ.App., 206 S.W. 966, wr. ref.; Balcomb v. Vasquez, Tex.Civ.App., 241 S.W.2d 650, wr. ref. n. r e.

We also hold that appellants waived this point by failing to include it in their amended motion for new trial. Rule 374, T.R.C.P.; 3 Tex.Jur.2d, Appeal and Error —Civil, p. 460, § 184; Shelton v. Ector, Tex.Civ.App., 364 S.W.2d 425, 427, no wr. hist.

Moreover, it is undisputed that at the time of the trial appellants had completely abandoned their homestead in Prosper. In December 1960 appellants sold the home they had built on the east half of the tract and moved to Dallas. This case was tried in March 1965. If the sale were ineffective at the time of its making because of the homestead character thereof, it would nevertheless become operative when the property ceased to be a homestead. Marler v. Handy, 88 Tex. 421, 31 S.W. 636; Irion v. Mills and Halbert, 41 Tex. 310; Grissom v. Anderson, 125 Tex. 26, 79 S.W.2d 619. See also Lewis v. Brown, Tex.Civ.App., 321 S.W.2d 313, wr. ref. n. r. e.

No reversible error has been demonstrated, and the judgment is

Affirmed.


source: Caselaw Access Project

author: GREEN, Chief Justice.

license: Public Domain

text:
    DANAHO REFINING COMPANY, Appellant, v. Clifton E. DIETZ et al., Appellees.
    No. 141.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 30, 1965.
    Rehearing Denied Jan. 27, 1966.

      Billy E. Lee, Houston, for appellant.
    Robert D. Nogueira, Beeville, for appel-lees.
   GREEN, Chief Justice.

Six plaintiffs, all former employees of appellant Danaho Refining Company, joined in one petition to bring suit for breach of a contract alleged to have been made in the latter part of 1952 between appellant and its employees at its plant near Beeville, Texas, to pay annually as a part of their salary or wages a Christmas bonus equal to one month’s salary. It was plaintiffs’ contention that this contract remained a binding legal obligation of defendant for the entire period of their employment, which terminated as to each in 1962, when defendant closed its plant in Bee County, and discharged its employees. After a trial without a jury, the -court upheld plaintiffs’ contentions, and rendered judgment whereby each plaintiff recovered an amount equal to one month’s salary for each of the years 1960 and 1961, the trial court impliedly finding that recovery for prior years was barred by the two years statute of limitation. The judgment also provided for reasonable attorney fees, which the court set at 20% of the recovery. Appellant has appealed from such judgment. The opinion of this court on the venue question is reported in 378 S.W.2d 412.

Appellant’s brief presents four points of error. The first two, which will be considered together, as they were in the briefs of appellant and appellee, are as follows:

“POINT OF ERROR NO. 1
The trial court erred in its implied finding that the parties entered into a contract in 1952 binding appellant for all material subsequent years, such implied finding being against the overwhelming weight of the evidence.
POINT OF ERROR NO. 2
The trial court erred in its implied finding that the periodic pay raises awarded to appellees after 1956 did not supersede the original contract regarding the payment of a Christmas bonus.”

Appellees, plaintiffs below, opened the testimony by reading from the oral deposition of J. F. Thomson, General Superintendent of appellant’s plant during all of the times here material. According to his testimony, he did appellant’s hiring and firing. In 1952, a general employees meeting was had, over which Thomson presided. The workers were asking for an increase in wages. While Thomson was driving Mr. Hovey, appellant’s president, to the airfield near Beeville the previous day, he told Hovey of the employees’ demands, and Hovey told him to offer them an increase of ten cents an hour, or a Christmas bonus equal to one month’s salary. As stated by Thomson, “as far as I can remember, when we called that meeting it was to decide whether to accept a ten cent raise or a bonus.” The employees chose the bonus of a month’s pay at Christmas. Thomson communicated this decision to Hovey, who gave his approval of the arrangement.

Not all of the employees at the plant attended the meeting, since some were actually at work on their job at the time. However, Thomson stated that the salary bonus arrangement covered all of the employees at the plant, and also included those who came to work there after the meeting took place. As to the latter class of employees Thomson testified:

“ ‘QUESTION: And those employees were told by you when you hired them that they would get a bonus at Christmas time in lieu of the ten cents an hour that the employees had wanted, is that correct?
“‘ANSWER: I told the boys during the — in the office at that time they weren’t all there, but as far as I am concerned, yes that is correct.’ ”

Marvin Voss, a witness for appellees, testified that he was present at the 1952 meeting, and that the employees, being given the choice by Thomson of the ten cents raise and a two week bonus, both when added together being equivalent to a month’s salary, or a bonus of a month’s wages at Christmas, chose the bonus. He testified further:

“Q All right. And did you gentlemen accept that then?
A Yes, sir.
Q The month’s pay?
A (Up and down nod.)
Q Now, did Mr. Thomson tell you that that was just for "that year, or two years—
A No.
Q What was the consensus there?
A Well, it was brought up that supposing they would quit paying that, and he said they couldn’t because that was your wages.
Q Well, was it to be a continuing thing from year to year?
A The way we understood it, it would be.
Q Now, did Mr. Thomson say, ‘Now, wait a minute, gentlemen, this is just for this year, 1952’?
A No, sir.
Q Did he say it was just for ’52 or *53?
A No, sir.
Q Did he just say it was for *52, *53, *54, or for any other set period of time?
A No, sir.
Q But that it was to continue ?
A Yes, sir.
Q All right. And you were at this meeting?
A Yes, sir.
Q And participated in these negotiations ?
A Yes, sir.
Q And you heard Mr. Thomson’s deposition read this morning when I read it, didn’t you ?
A Yes, sir.
Q And you heard his testimony that this applied to all the employees in the plant; is that correct?
A That’s correct.”

Four of appellees, Schley, Wehe, Aguirre, and Gonzales, were in appellant’s employment at the time of the meeting, and each continued in such employment until 1962. Appellee Dietz went to work for appellant at its Bee County plant in April, 1954, as chief chemist, and continued in its employ until October 15, 1962. He was employed by a Mr. Sives, who acted as appellant’s superintendent during a short interval while Thomson was supervising some construction at the plant. Appellee Hagemann was first employed in November, 1953, left the employment for a few months in 1954, was re-employed early in 1955, and continued to work for appellant until 1962. Dietz testified that when he was employed, as an inducement for him to take the job, which he was reluctant to take at the salary offered, Sives, in explaining the fringe benefits explained about the Christmas bonus • of a month’s salary, and that Dietz “understood that you were to receive one month’s salary at Christmas time each year, is that true?” A. “yes, sir.”

The bonus was paid to the employees in December, 1952, and 1953. It was not paid in 1954, but a letter was received by each of the six plaintiffs signed by Hovey, appellant’s president, written on company letterhead, dated December 21, 1954, reading as follows:

“Due to conditions beyond our control, we will be unable to pay the Christmas bonus at this time.
I feel sure that you all know that for the last six months we have been operating the refinery at a loss. This condition was brought about by the loss of our jet fuel and aviation gasoline contracts and general depressed market conditions.
The future, however, looks bright. We will have our platform unit on stream in the very near future and we were awarded a contract for a substantial amount of aviation gasoline over the first six months of next year which will enable us to operate the refinery at near capacity with a profitable operation.
I realize that this bonus is a direct obligation of your company and is so shown on our books and want to assure you that it will be paid as early next year as practical to do so.
Trusting that you understand the situation and best wishes for the holiday season and a prosperous New Year, I am
Yours very truly,
s/ D. W. Hovey
D. W. Hovey”

Notwithstanding the statements in the letter this bonus was never paid.

Another letter written on company letterhead signed by Mr. Hovey dated December 21, 1955, was received by each appellee as well as the other employees around Christmas of that year, in which the writer after mentioning certain heavy expenses incurred by the company during 1955 wrote:

“ * ⅜ * Our Directors regret very much our inability to make full payment of the Christmas bonus at this time. However, we are pleased to make a partial payment of one-half the regular yearly bonus at this time as covered by the enclosed check.
We all are grateful for your loyal support during this difficult year and on behalf of our Directors I want to extend to you and yours our best wishes for Christmas and the New Year.”

Each 1955 letter was accompanied by a check for one-half month’s wages.

No other payment of bonus money was ever made to any of appellees by appellant.

In 1956, another meeting of representatives of appellant’s employees was held at the plant, this one being presided over by appellant’s president Hovey. This meeting was called to discuss a petition signed by appellant’s employees asking for a twenty-five cents an hour pay raise. As a result of such meeting, appellant granted a blanket raise of 5% to all employees, including ap-pellees, to begin January 1, 1957, and an additional raise in June, 1957. No mention of the agreement concerning the bonus was made at this meeting, and nothing was said about it either then or at any later time by any of appellees or by any representative of appellant. Each of the six appellees testified that at no time did any one representing appellant state that the bonus agreement had been revoked, or would no longer be paid. Appellee Hagemann stated that when he was employed, “I just taken it (the payment of the bonus) as a part of the company’s deal.” Appellee Wehe testified that a sign remained on the company bulletin board for years after 1952 stating that in lieu of the ten cent an hour raise, the employees would receive a bonus at Christmas time. Mr. Hovey, testifying for appellant, stated that he had approved the agreement made in the 1952 meeting. He did not testify that there was a time limit placed upon the years during which the bonus would be paid, or that the subsequent raises superseded the bonus.

No findings of fact or conclusions of law were requested, or filed by the court. The trial court’s judgment, therefore, implies all fact findings necessary in its support. Commercial Standard Insurance Co. v. Merit Clothing Co., Tex.Sup.Ct., 377 S.W.2d 179. In determining whether the evidence is sufficient factually to support such implied findings, we have considered all of the evidence contained in the record. Garza v. Alviar, Tex.Sup.Ct., 1965, 395 S.W.2d 821.

The construction placed upon an agreement by the parties to it, as shown by their words and conduct, may properly be considered by the trial court as evidence of the true intent and purpose of the parties in entering into such agreement. Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566; Anchor Casualty Company v. Robertson Transport Company, Tex.Civ.App., 389 S.W.2d 135, writ ref. n. r. e.; Col-Tex. Refining Co. v. Coffield & Guthrie, Inc., Tex.Civ.App., 264 S.W.2d 462, writ ref. The letters written by appellant’s president to each of the employees, including each plaintiff, on December 21, 1954, and December 21, 1955 were evidence that appellant considered itself under legal obligation, or contract, two and three years after the meeting of 1952 to pay the monthly Christmas bonus annually. All of the plaintiffs, according to the evidence, construed the agreement in the same manner. Although appellant could, by giving notice of its intention, have cancelled the agreement at will, Kennedy v. McMullen, Tex.Civ.App., 39 S.W.2d 168, 174, writ, ref.. the evidence, shows and the trial court impliedly found that he gave no such notice.,

The fact that appellant did not pay the money from 1956 to 1961 inclusive, and that appellees remained on the job without complaint during that time, while evidence to be considered by the trial court on the question whether the parties intended that pay raises during those years superseded the original contract, as contended by appellant’s second point, is not conclusive. We have already, in summarizing testimony of witnesses, shown that nothing was stated or testified to by any of the parties regarding any reference to any connection between the bonus and the pay raises of 1956 and 1957. The trial court’s implied findings that there was no connection, and that there was a contract to pay the annual bonus and that it was not superseded by the subsequent wage increase, but remained in effect throughout the years of appellees’ employment, were based on evidence sufficient factually and legally to support such findings.

Appellant’s points one and two are overruled.

Appellant’s fourth point is that the trial court erred in holding that the claims of appellee were not wholly barred by limitations.

Appellant’s pleading in the trial court consisted as his factual pleas only of a general denial and a plea of the two year statute of limitation. The date of the filing of plaintiffs’ original petition is not shown, so far as we could discover, in the transcript, but from an undisputed statement in appellant’s brief, we conclude that it was filed in December, 1962. Since the trial court granted judgment only for the sums becoming due in December 1960 and December 1961, it is clear that he sustained the two year plea of limitations and found that claims for prior years were barred. No error is shown in the holding that the 1960 and 1961 claims were not barred.

Appellant by his statement and argument under this point attempts to raise for the first time so far as the record indicates the defense that the contract of 1952 could not have been performed within one year, and that as an oral contract it contravened the statute of frauds; and also that enforcement of such contract was barred by the principles of laches and state demand. Since appellant did not plead such defenses, or seek to raise them in the trial court by objections to pertinent evidence on any of these grounds, it is too late to attempt to raise such grounds of defense for the first time in the appellate court. Rule 94, Texas Rules of Civil Procedure; Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979; Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54; Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492; Culver v. Pickens, Tex.Com.App., 142 Tex. 87, 176 S.W.2d 167.

Appellant’s fourth point is overruled.

Appellant’s contention that the trial court erred in awarding attorney fees to appellees, as raised in its 3rd point, is not well founded. Appellant argues that the suit is based on a special contract, and that where a cause of action is based upon a special contract, all provisions for its enforcement, including attorney fees, must be spelled out in the contract, and that Art. 2226, Vernon’s Ann.Tex.Civ.St., is not applicable. Appellees’ petition and the evidence show that the cause of action though based on contract was for labor done and services rendered. No contention is made by appellant that the necessary demand for payment was not timely made by appellees before suit was filed. The trial court was justified in awarding attorney fees as authorized by Art. 2226, V.A.T.S. Huff v. Fidelity Union Life Insurance Company, 158 Tex. 433, 312 S.W.2d 493; Williams v. Milliger, Tex.Civ.App., 352 S.W.2d 794; writ ref. n. r. e.; Dueitt v. Barrow, Tex. Civ.App., 384 S.W.2d 214.

Appellant’s third point of error is overruled.

Judgment affirmed.


author: COLLINGS, Justice.

text:
    FIRST NATIONAL BANK OF BROWNWOOD et al., Appellants, v. Delbert CHAMBERS, Appellee.
    No. 3988.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 15, 1965.

      E. P. Woodruff, Jr., Gib Callaway, Brownwood, for appellants.
    G. A. Day, Brownwood, for appellee.
   COLLINGS, Justice.

Delbert Chambers brought suit against the First National Bank in Brownwood for conversion. Plaintiff alleged that he had pledged an “open” automobile title with the bank to secure a loan and that the bank thereafter wrongfully delivered such title to another and deprived plaintiff of the value of the car in the amount of $1,395.00. The defendant bank answered admitting that it was unable to deliver the title in question to plaintiff, but alleged that it had delivered such title to one Jack Allen, who was a partner, agent or apparent or ostensible agent of plaintiff. The defendant bank also filed a third party cross action against Allen alleging that it was entitled to recover from him any amount that plaintiff might be found entitled to recover from the bank. Allen answered alleging that he and Chambers were partners in said transaction. He further alleged that upon receiving said title certificate from the bank he sold the car in question for $1,-050.00, and by agreement with Chambers applied said amount to the payment of accounts in the sum of $2,002.00 owed by him and Chambers jointly for parts used to repair their partnership cars. The trial was before a jury which found that (1) Delbert Chambers was the owner of the 1961 Ford at the time the bank delivered the title to Jack Allen in March of 1963, (2) that prior to delivering such title to Allen the bank had received notice that Chambers was the owner of the car, (3) that the bank was unable to deliver the car title to Chambers on March 27, 1963, (4) that Allen and Chambers were not partners, (5) that Allen’s action in obtaining certificate of title from Bank was not within the scope of a partnership, (6) that Allen was not the agent of Chambers when he got the car title from the bank, (8) that Allen was not the apparent or ostensible agent of Chambers when he got the car title from the bank and (9) that the reasonable market value of the Ford car on March 27, 1963, in Brown County, Texas was $1,395.-00. Based upon the verdict, judgment was rendered for the plaintiff Chambers against the bank in the sum of $1,395.00, and that the bank recover the same amount from Jack Allen. The bank and Allen have appealed.

The appellant bank contends that the court erred in overruling its motions for an instructed verdict, for judgment non obstante veredicto, for a new trial and, in giving judgment against the bank for the reason that Jack Allen was the partner of Chambers when he secured the car title from the bank; that the existence of such partnership was shown by the undisputed evidence and there was no evidence to the contrary, and that in any event, the finding that Allen and Chambers were not partners was so contrary to the great weight and preponderance of the evidence as to be clearly wrong. In its second point it is contended that the court erred in rendering judgment against appellant bank for the reason that Allen was the authorized agent of appellee, Chambers, as shown by the undisputed evidence and that there was no evidence to support the finding that Allen was not such agent, and that in any event such finding was so contrary to the great weight and preponderance of the evidence as to be clearly wrong. In appellant bank’s third point it is contended that the court erred in rendering judgment against appellant because the undisputed evidence showed that Allen was the apparent or ostensible agent of plaintiff when he secured the car title from the bank, and that there was no evidence to support the finding to the contrary; that, in any event, such finding of the jury was so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

Appellant, Jack Allen, presents points substantially the same as those urged by the bank. Allen also urges points contending that the court erred in refusing to grant his motion for an instructed verdict on the ground that the undisputed evidence showed that Chambers suffered no damage because of the bank’s delivery to Allen of the car title in question; that Chambers had expressly agreed to the sale of the car by Allen; that Allen in compliance with the agreement did sell the car and receive a draft of $1,050.00 therefor, that he showed the draft to Chambers and was instructed by Chambers to apply such proceeds to the payment of debts owed by them for parts used on their partnership cars.

In connection with the questions of partnership, agency and apparent agency, the evidence shows that sometime in 1959, Delbert Chambers began the practice of buying used cars and selling them; that Allen was a used car dealer with a place of business in Brownwood and that he entered into an agreement with Allen to the effect that Allen would undertake to sell used cars turned over to him by Chambers and would receive a commission on the sale of such cars. There was evidence to the effect that sometimes a car would need to be repaired. Although Allen testified to the contrary appellee testified he would always pay Allen for such repairs before the car was sold. There was also a conflict in the testimony as to whether under the agreement between appellee and Allen that Allen would share in any losses suffered by ap-pellee. Allen, in fact, never shared any losses on cars which he sold for appellee, and the indication is that there were no losses.

The evidence shows that Chambers had been a customer of appellant First National Bank since 1956. Appellee testified that he had maintained a checking account with the bank and had borrowed money there in connection with purchasing used cars with the intention of selling them. The evidence indicates that appellee Chambers spent only a part of his time in the business of buying and selling used cars. When he bought a used car he would turn it over to Jack Allen for sale. Sometimes Allen located such a car and recommended it to Chambers. Chambers testified that on occasions he borrowed money from the bank in connection with purchasing such used cars, and would pledge an “open” automobile title with the bank to secure loans; that an “open title” was one which had been signed but the name of the new owner was not filled in, and that such title could be negotiated simply by filling in the purchaser’s name. The evidence shows that in the beginning of the arrangement between Chambers and Allen, Allen had permission when a sale was made to go to the bank and obtain the open title involved. On one prior occasion Allen had obtained the car title to a 1957 Chevrolet automobile; had then sold the car and converted the money to his own use. Thereafter, Mr. Felton Dewbre, who at that time was an officer of appellant First National Bank, as Assistant Vice-President, advised appellee to let no one but himself get the car titles which had been pledged with the bank as security; that appellee Chambers then instructed Mr. Dewbre, as officer of appellant bank, not to deliver car titles to anyone but himself, and thereafter when Allen sold one of appellee’s cars upon which the bank held the open title as security, Allen would call appellee and advise him that the car was sold. Appellee would then meet Allen at the bank and obtain the title to such car for delivery to the purchaser. On a previous occasion Allen had tried to obtain a car title, from the bank and had been refused. He had called appellee, Chambers’ wife, and requested her to obtain the title from the bank but when she called the bank she was advised by Mr. Dewbre to wait until appellee got back to town so that he could hándle the transaction.

One of the loans which appellant bank made to appellee Chambers was in the sum of $1,200.00 and appellee executed a note for that amount and delivered to the bank the “open title” to a 1961 Ford automobile as security. There is ample evidence to support the finding that appellee Chambers was at all times material hereto the owner of such Ford automobile. The evidence indicates that the practice of giving an open or negotiable car title as security was customary by appellant bank at that time. Chambers testified that on or about March 27, 1963, he went to the bank and asked for the return of the title to the Ford automobile in question. He talked to the bank official, Mr. Felton Dewbre, and was informed that the bank did not have the open title to such automobile but that Jack Allen had picked up the title. Appel-lee Chambers testified that the reasonable market value of the car in question at that time in Brown County was $1,395.00. Mr. Dewbre thereupon called Allen on the telephone and asked for a return of the car title or the money and was apparently advised by Allen that the Ford automobile had been sold. Dewbre informed appellee Chambers that the car was gone and that the title thereto could not be delivered. Mr. Dewbre also advised Chambers that he did not know how Allen got the car title out of the bank. Mr. Dewbre further testified that he scrutinized everything that Allen did with the bank concerning the used automobiles upon which the bank held the open title as security for loans to Chambers. He stated that he knew Chambers was the owner of such automobiles; that it was his responsibility to see that the notes were paid on the car titles when taken from the bank; that appellee did not authorize the bank to deliver the car title in question to Allen and had nothing to do with Allen securing the open title to such car. Allen owned no interest whatever in the 1961 Ford car in question. Although Allen testified to the contrary Chambers denied that Allen was ever his partner, agent or employee.

A partnership has been defined as a contract of two or more competent persons, to place their money, effects, labor and skill or some or all of them in lawful commerce or business, and to divide profit and bear the loss in certain proportions. 68 C.J.S. Partnership § 1, page 398; Burr v. Greenland, Tex.Civ.App., 356 S.W.2d 370, (Ref. N.R.E.); Winslow v. Boyd, Tex.Civ.App., 195 S.W.2d 384. A partnership contract may be oral or written, express, or implied from the conduct of the parties. It may be general or limited as agreed between the parties. Although a partnership is ordinarily formed for the transaction of a general business of some particular kind its purpose may be for the prosecution of a single adventure or transaction. It is not claimed by appellants that there was a general contract of partnership in this case. Appellants contend only that it was a partnership, involving specific transactions between the parties. Appellants who asserted the existence of the partnership had the burden to establish it. The jury found against appellants on the issue, hut appellants contend that the evidence conclusively shows the existence of the partnership and that the finding of the jury is without support and is contrary to the evidence. It is our opinion, however, that the finding of the jury that Allen and Chambers were not partners is not contrary to the evidence, but is amply supported thereby.

The evidence shows that Chambers was the owner of the automobile here involved. The evidence also shows without dispute that there was an agreement between Allen and Chambers for a sharing of the profits on automobiles owned by Chambers which were sold by Allen. There is support for the conclusion that there was no agreement for a sharing of the losses by Allen and that, in fact, there were no losses and that Allen never shared any loss on a car which he sold for Chambers. Generally, the partner relationship is not created unless each of the parties is bound, either expressly or by implication, to participate in the losses sustained in the business or individual transaction. However, where the parties clearly manifest an intention to form a partnership such intention is controlling in spite of the fact that under the agreement one of the parties is not required to share in the losses. It is said that the intention of the parties constitutes an important, if not the only, true test of partnership. 68 C.J.S. Partnership § 20 page 433. Appellee Chambers testified that the parties had no intention to, and did not, become partners. The evidence, in our opinion, supports the conclusion that the sharing of the profits by Allen was not “[a] community of profit and interest in profits as profits, as distinguished from interest therein as compensation under profit sharing agreement.” Tanner v. Drake, 124 Tex. 395, 78 S.W.2d 162. It appears that the evidence shows the existence of some of the elements of a partnership but indicates the lack of other elements thereof. In this state of the record the existence of a partnership was a question of fact for the fact finder. The burden was on appellants to establish the partnership. Contrary to appellants’ contention, the evidence did not conclusively show a partnership and there was ample evidence to support the finding of the jury that there was no partnership. There was some evidence to the contrary, but a consideration of the evidence as a whole does not show that it was insufficient to support the jury finding or that such finding was against the great weight and preponderance of the evidence. We overrule the points of both the Bank and Allen complaining of the lack, and the insufficiency, of the evidence to support the jury finding that Chambers and Allen were not partners-

Appellants’ points complaining of the lack and insufficiency of the evidence to show that Allen was the actual or apparent agent of appellee Chambers are likewise not well taken. The jury found against appellants on the agency issues. The evidence does not show that either Chambers or Allen held themselves out to be the agent of the other. On the contrary, on the occasion of the delivery of the car title in question to Allen, the Bank was under specific instruction not to make such a delivery and was on notice that Chambers, who was the owner, did not desire Allen to secure the title thereto except upon his specific instruction.

Appellant Allen also contends that the undisputed evidence conclusively shows the existence of a partnership or agency between him and Chambers because Chambers had expressly instructed him to sell the automobile in question. The evidence does show that Chambers instructed Allen to sell the car but the evidence supports the conclusion that the Ford automobile was delivered by Chambers to Allen with instructions to sell under an agreement that Allen would receive a commission for such sale. Allen also contends that after he sold the automobile upon instructions from Chambers that he received a draft from the purchaser in the sum of $1,050.00; that he showed the draft to Chambers and Chambers instructed him to apply the money when collected to the payment of what they owed for parts used on prior partnership cars. No issue was submitted to the jury inquiring whether the parties owed any sums of money on such cars or whether or not Chambers instructed Allen to make any such application of the money which he received from the sale of the car in question. Chambers testified that any expense for repairs or parts to his cars which were sold by Allen was paid prior to such sales, and that nothing was owed by him for any repairs or parts to any of such cars. Appellants’ contention in this respect is not well taken and is overruled. At most only a question of fact was presented and this was waived when Allen failed to request the submission of an issue to the jury thereon. It is presumed in support of the judgment that the court found the issue against Allen’s contention.

The judgment of the trial court is affirmed.


text:
    Jimmie JOHNSON, Appellant, v. FIREMEN’S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellee.
    No. 4000.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 19, 1965.

      Phelps, Kilgarlin & Snell, Bill Kilgarlin, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, James B. Sales, Houston, for ap-pellee.
   COLLINGS, Justice.

Jimmie Johnson brought suit to recover workmen’s compensation benefits from Firemen’s Insurance Company of Newark, New Jersey, because of an alleged accidental injury sustained by plaintiff on February 19, 1964, while working for the Pena Construction and Engineering Company. The defendant insurance company answered by a general denial and further that the policy of workmen’s compensation insurance which it had issued to the Pena Construction and Engineering Company was not in force on the date of plaintiff’s alleged injury. The defendant filed a motion for summary judgment with supporting affidavits asserting that such policy of workmen’s compensation insurance was not in effect, but had been cancelled prior to plaintiff’s alleged injury. Defendant’s motion for summary judgment was granted. The plaintiff Jimmie Johnson has appealed.

Appellant presents two points, contending that the court erred in granting appellee’s motion for summary judgment (1) in that the court erroneously concluded that the policy of workmen’s compensation insurance issued by appellee was not in force and effect on the date of his alleged accidental injury and (2) because appellee should be equitably estopped from raising the defense of cancellation of the policy prior to injury.

It is undisputed that appellee issued a policy of workmen’s compensation insurance to appellant’s employer, Pena Construction and Engineering Company for a period of one year commencing on May 31, 1963. The evidence shows that Pena Construction and Engineering Company thereafter defaulted in payment of premiums due under the policy and that appellee’s agent on August 22, 1963, mailed notice of cancellation to appellant’s employer. The cancellation notice indicated that the workmen’s compensation insurance policy was cancelled effective September 2, 1963. Appellant’s injury occurred on February 19, 1964, while he was working for his said employer. Appellant duly filed his claim for compensation with the Industrial Accident Board.

Appellant’s contention that the policy of workmen’s compensation insurance in question was still in force and effect on the date of his accidental injury is based upon the undisputed fact that appellee insurance company had not at the time of the accidental injury given notice to the Industrial Accident Board of the cancellation of the insurance policy. The Industrial Accident Board effective as of August 31, 1961, enacted certain rules, among which are rules 2.02 and 2.03. Rule 2.02 provides: “When any endorsement, cancellation or other change is made, such notice shall also be filed immediately with this board.” Rule 2.03 reads: “For the purpose of hearings, all policies shall be considered in effect until a cancellation notice is received by the board. It shall be the primary responsibility of the insurance carrier to assure that a copy of the cancellation notice is furnished immediately to the board.” Article 8307, Section 4, Vernon’s Ann.Tex.Civ.St., provides : “The Board may make rules not inconsistent with this law for carrying out and enforcing its provisions.”

Appellant contends that the above quoted rules implement Articles 8307 and 8308, V.A.T.C.S., and that the Board is within its right in adopting such rules as will enable it to carry out the workmen’s compensation law.

It is well established that the Workmen’s Compensation Act vests neither legislative nor judicial power in the Industrial Accident Board. The limited authority conferred on the Board is recognized by our Supreme Court in Middleton v. Texas Power and Light Company, 108 Tex. 96, 98, 185 S.W. 556. In that case our Supreme Court states:

“ * * ⅜ It (the Workmen’s Compensation Act) vests no judicial power in the Industrial Accident Board which it creates. That Board is but an administrative agency provided for the proper execution of the Act.”

It has also been held that regulations promulgated by the Industrial Accident Board cannot operate to impose conditions or requirements in excess of or inconsistent with the provisions of the statute. Kelly v. Industrial Accident Board, Tex.Civ.App., 358 S.W.2d 874, (Error Ref.); Bailey v. Texas Indemnity Insurance Company, Tex. Com.App., 14 S.W.2d 798. Appellant specifically urges Article 8308, Sections 18a and 20 in support of his contention that rule 2.02 and rule 2.03 of the Board are within the power granted to the Board by the Legislature. We cannot, however, agree with appellant’s contention that the Industrial Accident Board, as a part of its rule making authority to implement the Workmen’s Compensation Law, may provide procedural requirements concerning cancellation of insurance policies such as here involved. The question of whether an insurance carrier should file cancellation notice with the Industrial Accident Board as a prerequisite to cancellation of a policy is a matter for legislative consideration. The requirements imposed by rules 2.02 and 2.03 are in excess those imposed by the statutes and are inconsistent with the general laws of this state. In Burton v. I. C. T. Insurance Company, Tex.Civ.App., 304 S.W.2d 292, it was held that rules 2.02 and 2.03 could not invalidate cancellation by an insurance carrier. We agree with the holding in that case. Article 8308 does not require the insurance carrier to notify the Industrial Accident Board of the cancellation of one of its policies. Article 8308, Section 18a, does require an insurance company upon the issuance of a policy of compensation insurance to report the same to the Board, giving the name of the employer, his place of business, character of business, approximate number of employees, estimated amount of payroll, date of .issuance and date of expiration of the policy of insurance, but the statute does not require the insurance carrier to notify the Board of the cancellation of a policy. Article 8308, Section 20, requires an employer who ceases to be a subscriber to give notice of such fact to the Board on or before the date upon which the policy expires, but this provision of the statute does not require the insurance carrier to notify the Board of the cancellation of the policy.

Appellee had the right under the laws of this state and its contract with appellant’s employer to cancel its policy of workmen’s compensation insurance when Pena Construction Company failed to pay its premiums thereon. The statute does not require an insurance carrier upon the cancellation of a policy to file cancellation notice with the Industrial Accident Board. A rule by the Board so providing is contrary to the general laws of this state and to the contract between the parties. In our opinion such rule is also inconsistent with the statute. The Board has no authority to promulgate a rule which maintains such a policy of insurance in effect until the insurance carrier has filed a cancellation notice with the Board. Appellant’s first point is overruled.

Appellant also contends that the court erred in granting the summary judgment in favor of appellee insurance carrier urging that appellee should be equitably es-topped from raising the defense of cancellation of a policy prior to injury. Appellant points out that appellee failed to notify the Board of such cancellation for a period of two months after appellant sustained his injury and for a period of six weeks after appellant filed his claim with the Board. Appellant’s contention is, in effect, that ap-pellee’s failure to file cancellation notice with the Board amounts to a representation that its policy was still in force and effect. Appellant further points out that appellee on April 8, 1964, requested an examination of appellant by a physician of ap-pellee’s choosing. Appellant urges that such a request could only be construed as implying that appellee was the insurance carrier of appellant’s employer and that such insurance was in force and effect. Appellant urges that he has suffered detriment because of such conduct on the part of appellee.

There is no evidence showing any affirmative representation by appellee that the compensation insurance in question continued in effect until the time of appellant’s accidental injury. Actually, appellant’s contention is that the failure of appellee to file cancellation notice with the Board under the circumstances amounted to a representation sufficient to estop appellee from denying the continuation of the policy. We cannot agree with this contention. Appellee had no duty to file such notice with the Board or to inform appellant of the cancellation of its policy. Burton v. I. C. T. Insurance Company, supra; Kelly v. Industrial Accident Board, supra. In the absence of a duty to act silence and failure to act is not a basis for estoppel. Liberty State Bank v. Guardian Savings & Loan Association, 127 Tex. 311, 94 S.W.2d 133; Elsesser v. Cotham, Tex.Civ.App., 250 S.W.2d 591.

The defense of estoppel is not applicable for the further reason that appellant has failed to establish that because of appellee’s failure to file cancellation notice with the Board he has substantially altered his position to his detriment. Appellant’s claim for any damages that he may be entitled to recover from his employer has not been barred by the statute of limitations, nor does the evidence show that he has suffered any substantial detriment because of his lack of knowledge of the cancellation of the policy. Concord Oil Co. v. Alco Oil & Gas Corp., 387 S.W.2d page 635, (Sup.Ct.) ; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. Even if appellee had filed notice of cancellation with the Board there has been no showing that appellant could or would have done anything which would have improved his position. Appellant’s point urging equitable estoppel is overruled.

The judgment is affirmed.


author: PHILLIPS, Justice.

text:
    James Adair CARSON, Appellant, v. Marie HUDSON, Firemen’s Pension Commissioner et al., Appellees.
    No. 11351.
    Court of Civil Appeals of Texas. Austin.
    Jan. 5, 1966.

      Mitchell & Gilbert, Phillip W. Gilbert, Austin, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., J. C. Davis and I. Raymond Williams, Jr., Asst. Attys. Gen., Austin, for' appellee Marie Hudson, Firemen’s Pension Commissioner.
    S.G. Johndroe, Jr., City Atty., Fort Worth, for appellee Board of Trustees of Firemen’s Relief and Retirement Fund of City of Fort Worth.
   PHILLIPS, Justice.

This case involves an appeal to the District Court from an award made by appellee Board of Trustees, Firemen’s Relief and Retirement Fund of Ft. Worth, Texas, hereinafter called the Board, and affirmed by the State Firemen’s Pension Commissioner.

After a hearing, the District Court granted the Board’s and the Commissioner’s motion for summary judgment.

We affirm this judgment.

Appellant is before this Court on two points of error, briefed together, the first being that of the trial court in granting the summary judgment, the second being that of the trial court that there were no fact issues between the parties as to any material fact and that appellees were entitled to judgment as a matter of law.

We overrule these points.

This record contains allegations of many injuries that the appellant received between 1948 and 1961. Some were injuries received while off the job and other were received while appellant was on the job in his employment as a fireman. It is not necessary for the purposes of this opinion to develop the history of these injuries further.

I.

On June 22, 1961 appellant applied to the Board for disability benefits under Article 6243e, Section 7A, Vernon’s Ann. Civ.St., for non-service connected disability.

On August 10, 1961 the Board granted appellant the minimum disability pension under Article 6243e, Sec. 7A which was $50 per month based on 30% disability for off the job injuries.

Appellant appealed this award to the State Firemen’s Pension Commissioner and a hearing was held before the Commissioner on February 9, 1962.

On February 26, 1962, the Commissioner affirmed the action of the Board.

On April 10, 1962, appellant sent the Commissioner his notice of intent to appeal the Commissioner’s decision to the District Court in Travis County.

It should be noted here that there is no dispute in that appellant failed to give notice in writing to the Commissioner of his intention to appeal the Commissioner’s decision within 20 days required by Section ½ of Article 6243e, V.A.C.S., which is a: follows:

«⅞ ⅝ ⅜ finai decision or order h\> such Firemen’s Pension Commissioner may be appealed and an appeal therefrom may be taken to the proper Court of Travis County, Texas, having jurisdiction of the subject matter, upon the serving within twenty (20) days after date of such decision or order of a notice in writing of such intention to so appeal upon the adverse party.”

We hold that compliance with the 20 day provision of the statute is mandatory in order to give the District Court jurisdiction over the case. See Civil Service Commission of the City of Texarkana v. Carter, Tex.Civ.App., 344 S.W.2d 225. Since this provision was not complied with, the trial court was correct in sustaining appellees’ motion for summary judgment in this respect.

Appellant states that by letter to the Commissioner dated April 2, 1962 he requested a rehearing to which the Commissioner replied by letter dated April 3, 1962 that she did not hold rehearings after a final order and suggested that appellant’s next step would be a proper appeal to the District Court. Consequently, appellant contends that the Commissioner’s letter of April 3 was the final order which started the 20 day period prescribed for notice of appeal.

We overrule this contention. The statute makes no provision for motions for rehearing and such a provision cannot be supplied by the Rules of Civil Procedure. See Rayburn v. State, 163 Tex. 450, 356 S.W.2d 774.

Nor are we impressed with appellant’s assertion that since the statute states that the decision “may be appealed” and an appeal therefrom “may be taken” to the proper court renders the 20 day provision directory rather than mandatory. The word “may” used in the above quoted portion of the statute refers in both instances to the fact of whether an appeal is taken. To hold otherwise would be to make the 20 day requirement inserted by the Legislature a useless appendage. This construction is not favored by the law. See Mingus v. Wadley et al, 115 Tex. 551, 285 S.W. 1084.

II.

On September 6, 1962, while this case was on appeal in the District Court of Travis County, appellant made an application to the Board for pension benefits based on permanent and total disability resulting from on the job injuries under the provisions of Article 6243e, Sec. 7, V.A.C.S.

On November 7, 1962, the Board denied this request.

On February 8, 1963, after his appeal to the Commissioner, the Commissioner affirmed the Board’s decision.

On February 25, 1963, appellant notified the Commissioner of his intention to appeal to the court and such an appeal was perfected.

Section 9, of Article 6243e, V.A.C.S., provides, in part, as follows:

“If any fireman * * * shall be or become entitled to receive payments from a Fund under the provisions of more than one section of this Act, such fireman * * * shall be entitled to and shall be required to elect one section under which such payments shall be computed and paid; * *

When appellant filed his sworn application on June 22, 1961 under Section 7 A, followed through to an administrative decision thereon and received checks thereunder, he made his election thereby forfeiting any right to proceed under Section 7. There is nothing more that the Board could have done under the circumstances. This is the plain import of the above quoted provisions of the act.

The judgment of the trial court is affirmed.

Affirmed.


author: SHARPE, Justice.

text:
    SOUTHERN PACIFIC COMPANY, Appellant, v. Willett WILSON et al., Appellee.
    No. 174.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 30, 1965.
    Rehearing Denied Jan. 27, 1966.

      Proctor, Houchins, Anderson, Smith & Null by Conde N. Anderson and James N. Stofer, Victoria, for appellant.
    Willett Wilson, Houston, for .appellee.
   SHARPE, Justice.

This appeal is from a judgment rendered in a condemnation case in favor of appel-lees in the amount of $33,786.70. Southern Pacific Company, appellant here, was the plaintiff (condemnor) and Willett Wilson and his sister, Christine Wilson, appellees here, were defendants (condemnees) in the court below.

Appellant condemned an easement for railroad right-of-way purposes over a 4.723 acre strip which was part of a 121.72 acre tract of land out of the M. Sanches survey, Calhoun County, in the city of Port Lavaca, Texas. The jury fixed the value of the strip taken for the easement at $6,580.00 and the difference in value of the remaining 116.997 acres before and after the taking of said strip at $27,206.70, aggregating $33,786.70.

On this appeal, appellant, by three points, contends that the trial court erred, in substance, as follows: (1) in admitting certain testimony of appellees’ witness Sames with regard to market values of the property in question and in refusing to strike the same on appellant’s motion, (2) in refusing to admit certain testimony of the witness Sames developed on cross-examination concerning market values, and (3) in overruling appellant’s objection to a jury argument by counsel for appellees and in failing to grant a motion for mis-trial on account of same.

Under point one, appellant contends that the trial court should have stricken the testimony of the witness Sames because his opinion as to market value was shown by questions propounded on cross-examination to be based on “asking or offering prices” of property located in the vicinity. Appellant argues that such “asking or offering prices” are wholly insufficient as the basis for an opinion concerning market value and are inadmissible as evidence of same, relying upon West v. State, 150 S.W.2d 363 (Tex.Civ.App.1941, n. w. h.), and cases therein cited.

The record reflects that on direct examination Sames was qualified as an expert witness and gave his opinion concerning the market values in question based upon his general knowledge and experience, on two comparable sales of property in the vicinity, as well as upon personal knowledge of the 121.72 acre tract involved. He testified that the strip taken had a reasonable market value of $2,198.28 per average acre, amounting to $10,404.47, by calculation. As to the remaining 116.997 acres, he testified that it had a reasonable market value of $2,202.-26 per average acre before and $1,614.30 after the strip was taken, or a difference of $587.96 per average acre. He testified, as did the other value witnesses, that some portions of the tract were more valuable than others, particularly for a community shopping center and for residences.

On cross-examination by counsel for appellant, the following took place:

“Q. In making this appraisal and determining your estimate of this ten thousand dollars an acre did you consider any sales of comparable property fronting on Austin Street ?
A I considered sales of comparable property fronting on Austin Street and also property that was being offered for sale, and also the availability of property.
Q You considered the asking price, is that correct?
A Offered for sale. That’s correct.
“MR. ANDERSON: We move that the witness’s opinion on this entire ten acres be stricken, Your Honor. It’s based on hearsay, offering prices. That’s not the proper basis of an opinion of an expert. Only actual sales of property of comparable situations or comparable circumstances are permissible as the basis of an expert’s opinion. We move that his entire testimony of this ten acres be stricken.
“MR. WILSON: I think, Your Honor, that the cases all hold that an appraisal witness can consider everything. He can consider terrain; he can consider improvements; he can consider offering prices for sale, offering prices to purchase. In other words, he uses that conglomeration and accumulation of information to base his appraisals and I think it’s permissible, Your Honor.
“THE COURT: I believe the objection is based to the weight rather than the admissibility.
“MR. ANDERSON: I understand my objection is overruled? Note my exception.”

Sames did not testify as to any specific “asking or offering” price, and the authorities relied on by appellant are not in point on the contention made here. The acquaintance of the witness with “asking or offering prices” was a part of his general knowledge and experience in the real estate business and did not make his testimony inadmissible or subject to a motion to strike. State v. Thompson, 290 S.W.2d 319, 323 (Tex.Civ.App.1956, writ, ref., n. r. e.); State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 200, 979 (1936) ; Rayburn, Texas Law of Condemnation, § 128, p. 404. Appellant’s point one is overruled.

Under its second point appellant contends that the trial court denied it the right of cross-examination to test the opinion of the witness Sames in rebuttal to testimony given by him on direct examination. Appellant says that the trial court erred in refusing to admit certain testimony of that witness sought to be elicited on cross-examination, and, after appellees’ objection was sustained, developed out of the presence of the jury on bill of exception. Such testimony related to the basis or reasons for the opinion of the witness as to the market value of the property in question. Specifically, counsel for appellant questioned the witness about a subdivision located in the city of Victoria, Texas, in another county; about persons, including a district judge, who lived in it, and the cost of homes situated there. When that line of questioning was begun, the trial court sustained appellees’ objection on the ground that the property inquired about was not shown to be comparable. After appellant had developed the testimony of Sames on bill of exception, and re-offered it, the trial court ruled as follows:

“THE COURT: I had excluded that testimony for reason of the fact that it’s not comparable property; it’s not located in the same county; it’s in a town of forty or fifty thousand population compared to a town of ten thousand; and that it’s not comparable property to make a comparison by; therefore, your request is being denied.”

The trial court ruled correctly in sustaining appellees’ objection to the prof erred testimony and in refusing to grant a mistrial. That the time the witness Sames was asked questions by counsel for appellant about a subdivision in another county and concerning specific persons who lived there, testimony had been developed to the effect that some persons lived next to railroad tracks and others preferred not to do so. Sames had testified, in substance, that some people did not mind living next to a railroad track but that they didn’t move there because it was located there; that a railroad track did not add anything to value, and, if anything, detracted from it, partly because of noise and vibration. The cross-examination of Sames covers about 35 pages in the statement of facts. Appellant was afforded ample opportunity to test the accuracy and credibility of Sames’s testimony. In Holcombe v. City of Houston, 351 S.W.2d 69, 73 (Tex.Civ.App.1961, n. w. h.), the court said:

“ * * * Both with regard to time, distance and comparability a great deal of discretion is vested in the trial court in determining the admissibility of such testimony and his action will not be overturned unless an abuse of discretion is shown. Coastal Transmission Corp. v. Lennox, Tex.Civ.App., 331 S.W.2d 778, no writ history; City of Houston v. Collins, Tex.Civ.App., 310 S.W.2d 697, no writ history; Joyce v. Dallas County, Tex.Civ.App., 141 S.W.2d 745, no writ history; City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808; Reeves v. City of Dallas, Tex.Civ.App., 195 S.W.2d 575, ref., n. r. e.; Thompson v. State, Tex.Civ.App., 319 S.W.2d 368, no writ history.”

The matters complained of by appellant under its second point do not reflect error; and, if they did, the same would be harmless. Rule 434, Texas Rules of Civil Procedure. State v. Thompson, 290 S.W.2d 319 (Tex.Civ.App.1956, wr. ref., n. r. e.). Appellant’s second point is overruled.

Under its third point, appellant contends that the trial court erred in overruling its objection to a jury argument made by counsel for appellees and in failing to grant a mistrial on account thereof. The argument, objection and motion are reflected by the record as follows:

“MR. WILSON: * * * Mr. Duke’s value is a better criterion of value than Mr. Sames’, although Mr. Sames’ value is lower than what actually that Burk property, * * * which is your comparable tract, actually the most comparable tract in the area * * * sold for. In other words, Sames’ value is less than Burk’s value; Duke’s is more. The railroad value gets down to practically nothing. They don’t believe that property is worth anything out there. It’s worth a lot of money to them. They’re going to haul a million four hundred thousand tons of rock * * *
“MR. ANDERSON: We object. He is now arguing the value to the railroad of the easement being acquired. That’s not a proper inquiry or the proper measure of damages, and we submit that it’s an appeal to the prejudice of the jury and we move for a mis-trial on the basis of that.
“MR. WILSON: The railroad, Your Honor * * *
“THE COURT: Overruled.
“MR. ANDERSON: Note our exception. The mis-trial is overruled?
“THE COURT: Yes.”

Appellant specifically contends that counsel for appellees was arguing matters not contained in the record; that the argument as to the value of the easement to the railroad was improper and an appeal to the prejudice of the jury and probably influenced it to award higher damages to the appellees than otherwise would have been done.

Appellant offered the testimony of one of its employees to show how and why the route for an industrial spur track was selected and that the purpose of constructing the track was to serve a contractor who had been awarded a jetty project across Cavallo Pass; and that some million four hundred thousand tons of material were to be moved in “to enable Port Lavaca, Alcoa, the plant area, and the entire community to gain access to deep water.”

The portion of the argument that the railroad was “going to haul a million four hundred thousand tons of rock” was based upon evidence to that effect offered by appellant, and was, therefore, invited. Error is not presented on that phase of the case. However, the additional argument “It’s worth a lot of money to them (meaning the railroad)” was improper because it was partly based upon the value of the property being condemned to the con-demnor. See Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236. We, therefore, will examine the record briefly to determine if reversible error is presented.

On the trial of the case each side presented two expert witnesses as to market values. On the question of the market value of the condemned 4.723 acre-strip, appellees’ witness Sames testified to $10,-404.47 (calculated at $2,198.28 per average acre), and their witness Duke to $12,550.00 (calculated at $2,661.30 per average acre). Appellant’s witness Brown valued the strip at $7,146.00 (calculated at $1,513.00 per average acre), and its witness Lempert valued it at $5,000.00. No question was raised as to any remaining value to the owners in the strip taken, and no issue was submitted to the jury concerning it. It is apparent that the jury award for the strip in the amount of $6,580.00 is supported by the testimony of appellant’s witness Brown. Such award is considerably less than the amounts testified to by the witnesses for appellees.

On the question of damages to the remainder of appellees’ tract, appellees’ witness Sames testified that it had a reasonable market value of $2,206.26 per average acre before the strip was taken and $1,614.-30 afterward, a difference of $587.96 per average acre. Appellees’ witness Duke testified that appellees’ remainder had a reasonable market value of $2,661.30 per average acre before the strip was taken, and $1,330.60 afterward, a difference of $1,330.70 per average acre. Appellant’s witness Brown testified that the tract had a reasonable market value of $1,513.00 per average acre before the strip was taken, and that the only reduction in value of the remainder was to a 1.42 acre tract, amounting to $1,065.00. Appellant’s witness Lem-pert testified generally that before the taking some of appellees’ remaining property was worth $50.00 a front foot (along Austin Street); that a wooded area along a drainage ditch was worth $600.00 an acre, and that the reasonable market value of the land below said ditch was $1500.00. Lempert testified that, in his opinion, that the only reduction in value to the remainder caused by the taking of the strip was to a small tract of about two acres, amounting to about $200.00.

The testimony of Sames, if fully credited, would have resulted in an award for damages to appellees’ remainder on the basis of $587.96 per average acre. Duke’s testimony, if fully credited would have resulted in an award on the basis of $1,330.70 per acre. The jury award of $27,206.70 on the remainder amounts to about $233.00 per average acre, and is less than one-half of the amount testified to by Sames, and less than one-fifth of the amount testified to by Duke. Aside from the matters argued under appellant’s points one and two, the legal and factual sufficiency of the evidence to support the verdict is not questioned, and no point is raised that the verdict is excessive.

In this state of the record, it is not demonstrated that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court. See Rule 434, T. R.C.P.; State v. Sides, 348 S.W.2d 446, 451 (Tex.Civ.App.1961, wr. ref., n. r, e.). Appellant’s point three is overruled.

The judgment of the trial court is affirmed.


text:
    Claborn NEWSOM et al., Appellants, v. Mrs. Bessie NEWSOM et al., Appellees.
    No. 3982.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 17, 1965.
    Rehearing Denied Jan. 14, 1966.

      George A. Day, Brownwood, Yates & Yates, Abilene, Webb & Stokes, San Angelo, for appellants.
    E. P. Woodruff, Jr., and Darrell Shelton, Brownwood, for appellees.
   COLLINGS, Justice.

Claborn Newsom and others, the surviving brothers and sisters of J. R. Newsom, deceased, brought this suit on July 18, 1963, in the District Court as a certiorari proceeding to set aside an order or decree of the County Court of Brown County, entered on July 6, 1962, directing Mrs. Bessie New-som, administratrix of the estate of J. R. Newsom, deceased, to convey certain land of the said J. R. Newsom estate to D. S. Gentry and wife, Joan Gentry, in compliance with a written contract of sale and purchase entered into between J. R. New-som during his life and the said D. S. Gentry. Mrs. Bessie Newsom is the surviving widow of J. R. Newsom. The District Court rendered judgment that plaintiffs take nothing, refusing to set aside the specific performance decree of the County Court. The plaintiffs have appealed.

Appellants urged points contending (1) that the County Court had no jurisdiction to adjudicate, as between appellants and appel-lees, the title to land and the ownership of $18,500.00 worth of property by using the form of a specific performance suit, in which appellees, as the designated parties had no controversy between themselves, and in which appellants were not made parties, (2) that there was no adversary proceeding presented by the specific performance suit in the County Court between the designated parties therein and that that court, therefore, had no jurisdiction to enter a judgment in said cause, (3) that appellants, as heirs at law of J. R. Newsom, deceased, were indispensably necessary parties to any suit for specific performance of any contract of the deceased to convey land, (4) that it was indispensably necessary to furnish a copy of the specific performance complaint in the County Court to the attorney of record of appellants who had filed a written contest in the probate proceeding in response to the allegations in the application of the administratrix for administration as to the alleged sales contract, (5) that since the administratrix was disqualified by self interest and by relationship with the plaintiff in the specific performance suit, there was no one present in the County Court to protect appellants’ interest, and that due process of law guaranteed by the State and Federal Constitutions, required that appellants be made parties to the suit and served with notice, (6) that acceptance of the contract within 90 days by Joan Gentry as a third party beneficiary was essential to its enforcement, and (7) that the court erred in sustaining exceptions to and striking out all of appellants’ allegations as to conspiracy and fraud contained in their petition.

The record shows that J. R. Newsom, a resident of Brown County, died February 26, 1961; that Honorable Darrell Shelton had represented Mr. Newsom as an attorney for a period of years; that Bessie Newsom is J. R. Newsom’s second and surviving wife. J. R. Newsom, deceased, had no children. Joan Gentry is the wife of D. S. Gentry and is a daughter of Mrs. Bessie Newsom by a prior marriage. Appellants are brothers and sisters and descendants of brothers and sisters of J. R. Newsom. J. R. Newsom died intestate and his mother and father are and were deceased at all times material hereto. On April 5, 1961, Bessie Newsom, J. R. Newsom’s surviving widow, filed an application in the County Court of Brown County for letters of administration on J. R. Newsom’s estate. A general citation in probate was issued, served by posting and return. Such proceeding was Cause No. 5320 on the Probate Docket of the County Court of Brown County. Some of the appellants, namely, C. Newsom, Mrs. Jim Flowers and R. C. Lentz, filed pleadings in the County Court proceeding stating in substance that they joined in the application for letters of administration filed by Bessie Newsom; that the application of Bessie Newsom did not list all of the property nor describe it generally as required by the probate code; that the decedent owned various property including the 296.5 acres of land involved in this suit, that said parties were some of the heirs of the deceased who had died intestate without issue; that said parties “have no knowledge of any contract to convey the — 296.5 acres of land to D. S. Gentry and demand strict proof of the same.” Such heirs prayed that an order be entered setting a hearing on the issue of letters of administration, that the petitioner be required to account for all real and personal property belonging to the decedent at the time of his death on February 26, 1961; that the alleged contract to convey the land in question be “reduced to proof”, and for such other and necessary orders as the County Court might deem proper. Mrs. Bessie Newsom in her original application for letters had stated that decedent had made a contract with D. S. Gentry to sell him the land.

Mrs. Bessie Newsom was appointed ad-ministratrix of the estate of J. R. Newsom on October 16, 1961 and her bond was set at $25,000.00. She filed her oath on August 24, 1961 and on August 25, 1961 filed her bond. Royal Indemnity Company was surety on the bond, and it was duly approved by the County Judge on August 25, 1961. An inventory and appraisement of the estate was filed July 16, 1962. The inventory did not list the land in question but did list a vendor’s lien note for $12,700.00, alleged to have been executed by Gentry in part payment for the land. The inventory, ap-praisement and list of claims was approved by the County Court on July 16, 1962.

This action started when D. S. Gentry on July 6, 1962, filed a verified complaint seeking specific performance of a contract with J. R. Newsom. Such complaint alleged that Gentry and J. R. Newsom, deceased, had on February 17, 1961 entered into a contract for the sale and purchase of Newsom’s 296.5 acres of land for a consideration of $18,500.00. An executed copy of the contract was filed with the complaint. The complaint alleged the death of J. R. Newsom on February 26, 1961, and that he had not performed the contract at the time of his death. The complaint prayed that Bessie Newsom, administratrix of the estate of J. R. Newsom, deceased, be cited to appear and answer and show cause why specific performance of the written agreement should not be decreed, and that the court enter a judgment ordering the ad-ministratrix to make title to the land in question pursuant to the terms of the agreement.

The contract of purchase and sale provided that the land was sold to D. S. Gentry for $18,500.00, of which $5,800.00 was to be paid in cash and $12,700.00 was to be paid by the execution of an installment vendor’s lien note in such amount, payable in annual installments of $1200.00 each and bearing interest at the rate of 6% per annum. The contract further provided that it would be closed on or before 90 days from date. Mrs. Newsom waived service on said complaint. On July 6, 1962, the County Court entered its decree ordering Mrs. Newsom, as administratrix, to perform the decedent’s contract and to convey title to the land to Gentry. Mrs. Newsom, in compliance with such order on that same date executed a deed conveying the land in question to Gentry and his wife.

In their petition for certiorari, appellants alleged in substance that the contract of sale provides that the transaction should be closed on or before 90 days from date thereof, to-wit, February 17, 1961; that such contract was not closed within 90 days, and the failure to comply with that provision of the contract rendered it void and of no force and effect. Appellants further alleged, in effect, that the purported contract of sale required that D. S. Gentry and his wife execute a vendor’s lien note against the 296½ acres of land in question; that the wife of Gentry never signed said contract; that such contract is unenforceable as to her, and since there was no mutuality of remedy was not capable of being specifically enforced. Appellants further alleged, in effect, that the purported contract of sale was and is void for the reasons that, if the contract was signed by J. R. Newsom he was in extremely poor health at the time of such signature, and was unduly influenced to sign same by his wife, Bessie Newsom; that such signature was made at a time when J. R. Newsom was so physically disabled as to not be able to understand the consequences of his act; or, in the alternative, that the decedent J. R. Newsom was at the time of making such signature, being 9 days prior to his death, old, infirm and in extremely poor health and by reason thereof incapacitated from properly attending to his business; that appellee D. S. Gentry took advantage of his old age, infirmity and incapacity and induced the said J. R. New-som to agree to convey the property in question to him and his wife, Joan Gentry.

Appellants further alleged that the deed executed by the administratrix, Bessie New-som, to her son-in-law and daughter, in compliance with the decree of the Probate Court, was for an inadequate consideration and an attempt to deprive appellants of their lawful inheritance as heirs of J. R. Newsom, deceased, who died intestate; that except for such deed changing the status of the property from realty to personal property appellants would inherit their half interest in and to the 296½ acres of land.

Appellees in their first amended original answer alleged that appellants’ suit was a collateral attack upon a valid order and judgment of the Probate Court of Brown County. Appellees further made such allegations in their first supplemental answer, and also alleged that appellants failed to comply with the requirements of Rule'344 of the Texas Rules of Civil Procedure ; alleged that appellants’ suit in the District Court was a collateral attack on the County Court judgment and should be dismissed. Appellees again repeated these allegations in their second supplemental answer. Rule 344, T.R.C.P. provides that an application for a writ of cer-tiorari shall state the name and residence of each party adversely interested. Appellants’ petition for certiorari did not make Royal Indemnity Company the surety on the bond of Mrs. Bessie Newsom, ad-ministratrix, a party defendant to the suit. It is held that a surety on such a bond is “a party adversely interested”. Appellants’ application for a writ of certiorari is therefore not in compliance with rule 344. A proper application for certiorari constitutes a direct attack on the judgment. It is held, however, that in such cases the surety must be made a party if the suit is to be classed as a direct attack, and that if the surety is not made a party the attack on the judgment is collateral. Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932 (Tex.Com.App.); Moore v. Evans, Tex.Civ.App., 103 S.W.2d 850; Reed v. Harlan, Tex.Civ.App., 103 S.W.2d 236; Hannon v. Henson, 15 S.W.2d 579 (Tex.Com.App.); Moore v. McInnis, Tex.Civ.App., 295 S.W.2d 707. In this condition of the record it is our opinion that the court properly granted appellees’ motion for judgment.

Even if, contrary to the above, it should be held that appellants were necessary parties to the petition for specific performance, still no reversible error is shown for the reasons hereinafter set out. Generally a plaintiff is entitled to specific performance of a contract for the purchase of land when he has performed or shows that he is able, ready and willing to perform his part of the contract according to its terms. Leverett v. Leverett, Tex.Civ.App., 59 S.W.2d 252 (Error Ref.); Rutherford v. Nichols, Tex.Civ.App., 253 S.W.2d 306; Townsend v. Milliken, Tex.Civ.App., 294 S.W. 938; 52 Tex.Jur.2d 588, 589. The Gentrys have, under the circumstances, shown a substantial performance of their portion of the contract. Appellants have shown no grounds for revision of the order of the County Court decreeing specific performance of the contract.

We overrule appellants’ contention in effect that the act of the Probate Court in decreeing specific performance of the contract was beyond the jurisdiction of the Probate Court because it amounted to an attempt to adjudicate the title to the property involved. The proceeding seeking specific performance of the contract was not a suit for title to land but was for specific performance of a contract to convey land. Section 27 of the Texas Probate Code, V.A.T.S., specifically provides therefor.

Appellants contend that due process of law under the State and Federal Constitutions required that they be made parties and served with notice concerning Gentry’s complaint seeking specific performance of J. R. Newsom’s contract to sell the land. In our opinion, no reversible error is presented by this point. If, under the circumstances, other notice than that given was required, appellants cannot now complain because by their petition for certiorari they invoked the jurisdiction of the District Court for a de novo trial on the merits. They have had their day in court. Wilson v. Fisher, Tex.Civ.App., 105 S.W.2d 304.

The appeal to the District Court was by way of a writ of certiorari. On such an appeal from the Probate Court to the District Court the trial is de novo. Rules 350 and 264, T.R.C.P. It is required in such cases that the application for certiorari shall allege facts which, if true, would require rendition of a different judgment on the merits. 11 Tex.Jur.2d page 674; Jirou v. Jirou, Tex.Civ.App., 136 S.W. 493. If an application for certiorari fails to allege existence of such facts it may be dismissed. Hall v. Davison, Tex.Civ.App., 176 S.W. 642, (Writ Ref.) ; Richardson v. Lingo, Tex.Civ.App., 273 S.W.2d 119, (Ref. N. R. E.).

Where an application for certiorari is granted by the District Court the case must be tried on its merits as if it were an original suit, except that the hearing is confined to the grounds of error set out in the application for the writ. Rule 350, T.R.C.P.; Jirou v. Jirou, supra; Hurley v. Hirsch, Tex.Civ.App., 66 S.W.2d 387; McDonald v. Edwards, 137 Tex. 423, 153 S.W.2d 567.

The grounds of error alleged in appellants’ petition for certiorari have been previously noted. In our opinion nothing is presented therein which would require a different judgment from that rendered by the District Court and the points urged by appellants in connection therewith present no reversible error. The contract in question does provide, in effect, that the sale should be consummated within 90 days. The record shows, however, that Mr. J. R. Newsom died before expiration of the 90 day period and that the delay in closing the transaction was caused by his death and the necessity for an administration of his estate. No administrator was appointed over Mr. Newsom’s estate until August 16, 1961. At that time appellee, Mrs. Newsom, was appointed administratrix and the appointment was more than 90 days after execution of the contract. In our opinion the right of the Gentrys to have the contract enforced was not defeated by such a delay in consummation of the contract.

We also overrule appellants’ contention that the contract was not capable of being specifically enforced because there was no mutuality of remedy in that it required D. S. Gentry and his wife to execute a vendor’s lien note against the land in question; that Mrs. Gentry did not sign the contract, and therefore was not obligated thereunder and could not be required to do so. Mr. Gentry acted on behalf of himself and his wife when he entered into the contract with Mr. J. R. Newsom., Mrs. Gentry thereafter signed the note and deed of trust provided for in the contract. In Adams v. Abbott, 151 Tex. 601, 254 S.W.2d 78, it was held that mutuality of remedy at the inception of a contract for the sale of land is not an essential element in a suit for specific performance against a party who has bound himself in writing to a performance thereof, if mutuality of remedy is available at the time of the decree, and that such mutuality may be supplied by performance by the party seeking specific performance. In the instant case appellees at the time of the decree for specific performance had performed according to the terms of the contract and were entitled to the relief prayed for.

Appellants further urge that the contract was void because Mr. J. R. New-som was of unsound mind and incompetent to understand the nature of such a business transaction; that execution of the contract by Mr. Newsom under these circumstances was the result of undue influence on the part of appellees; that the signature of Mr. Newsom on such contract was a forgery, and that the sale was for an inadequate consideration and an attempt to deprive appellants of their lawful inheritance as heirs of J. R. Newsom, deceased, who died intestate leaving no will. None of these points are well taken. There was no evidence that Mr. J. R. Newsom at the time he signed the contract was of unsound mind or incompetent to attend to business matters, no evidence tending to show that execution of the contract by Mr. Newsom was the result of undue influence on the part of appellees, or of any one else, no evidence that the signature of Mr. Newsom to the contract was a forgery and no evidence of a lack of consideration for execution of such contract. Appellants’ points are all overruled.

The judgment is affirmed.