author: PHILLIPS, Justice. HUGHES, Justice

text:
    H. RICHARDS OIL COMPANY, Appellant, v. W. S. LUCKIE, INC., et al., Appellees.
    No. 11293.
    Court of Civil Appeals of Texas. Austin.
    May 19, 1965.
    Rehearing Denied June 9, 1965.

      Kuykendall & Kuykendall, F. L. Kuyken-dall, Austin, for appellant.
    Jennings, Montgomery & Dies, Elton M. Montgomery, Graham, for appellees.
   PHILLIPS, Justice.

Harry Newton, Inc. was awarded a contract by the Texas Highway Department for a construction project in Milam County, Texas. The amount involved in the contract was $982,982.27. Harry Newton, Inc. was required to execute a bond in the amount of said sum and such a bond was executed with Commonwealth Insurance Company of New York.

Later, W. S. Luckie, Inc. became a subcontractor on this project and purchased from H. Richards Oil Company gasoline and other petroleum products. As of June 7, 1962, W. S. Luckie owed H. Richards Oil Company an alleged balance of $11,181.-16.

On July 3, 1962, H. Richards Oil Company furnished Luckie, Newton, Inc. and Commonwealth sworn accounts to which were attached copies of the invoices and credit memos. These were sent by certified mail, return receipts requested.

The account was not paid and Richards brought suit against Luckie, Harry Newton, Inc. and Commonwealth. Afterwards, by amended pleadings, Newton, Individually, was made a party defendant.

Luckie did not appear and wholly defaulted.

The case was tried on its merits and the jury found in answer to the two special issues submitted that the alleged invoices and credit memos had been attached to the sworn account received by Newton, Inc., Commonwealth and Luckie; the second issue which concerned attorney’s fees was withdrawn from the jury. Before this second issue was withdrawn, the parties hereto agreed that reasonable attorney’s fees in such a case would be $2000.00; however, Harry Newton, individually, Harry Newton, Inc., Luckie and Commonwealth did not agree that they were liable for any such attorney’s fees.

The trial court entered a judgment in favor of H. Richards Oil Company against Luckie for $14,187.46, said amount being principal with accrued interest thereon from January 1, 1963, together with $2000.-00 as attorney’s fees and costs; and, against Harry Newton, Inc. and Commonwealth, jointly and severally with Luckie, for $5,-417.19, including attorney’s fees of $2000.-00, accrued interest and costs.

A take nothing judgment was rendered against Richards insofar as its suit against Newton, Individually, was concerned.

While, technically, H. Richards has been designated the appellant here, all parties are actually appellants and assign error to the judgment of the trial court. Where we do not refer to the parties herein by their names we will refer to H. Richards Oil Company as appellant and to Harry Newton, Inc. and Commonweath Insurance Company as appellees.

As we sustain appellees’ first three cross-points, briefed together, and must reverse and remand this case for another trial, we shall discuss these points first.

Appellees’ first three cross-points assign error to the trial court in admitting appellant’s request for admission to W. S. Luck-ie, Inc. and the answers thereto into evidence against the appellees because such admissions were hearsay as to the appellees; that these admissions were not admissible to prove liability of appellees under Article 5160 R.C.S., Vernon’s Ann.Civ.St. art. 5160 and consequently there was no evidence or insufficient evidence of any liability of ap-pellees under such statute.

Appellant had the burden of establishing through evidence that it was a claimant under Article 5160C and further that it had fulfilled the requirements of Article 5160B in that it had fulfilled its contract either by performing the work required or delivering the materials ordered; that the work performed or the materials furnished was incident to or used on, the construction project covered by the bond; that its claim remained unpaid after the expiration of sixty days from the filing of the claim.

Appellants purported to fulfill these requirements by introducing certain requests for admissions addressed to W. S. Luckie, Inc. and the answers to such requests. The appellees objected to the introduction of Luckie’s admissions on the ground that they were hearsay and not binding upon or admissible against them, although as against Luckie such admissions would constitute proper evidence. The court overuled the objection.

These admissions of Luckie state, among other things, that Luckie was a subcontractor of Newton, Inc. (the prime contractor on the construction job in question) from December 1, 1961 through June 7, 1962. It is undisputed that Richards furnished petroleum products to Luckie, Inc. during such period. This, including the admissions hereinafter stated, was disputed and put in issue by appellees’ general denial. That all such petroleum products furnished by Richards to Luckie during this period were used in connection with the construction of the highway project. That after allowing all credits, Luckie was still indebted to Richards in the amount of $11,181.16 for such petroleum products. That Richards requested Luckie to pay the balance of the account more than thirty days prior to the filing of this suit.

No other evidence was offered pertaining to these required elements of proof under Article 5160B.

It was error for the court to allow the admissions of one defendant as against all defendants where there was no showing that the defendant to whom the admissions were directed was an agent of the other defendants or had any authority to represent them. See Talbott v. Hogg, Tex.Civ.App., 298 S.W.2d 883, error dism. Also, Sanchez v. Caroland, Tex.Civ.App., 274 S.W.2d 114.

We sustain this point and reverse and remand this case for a new trial.

In view of a new trial we deem it necessary to discuss the several additional points of error raised by the parties hereto.

Appellant’s two assignments of error complain of the court’s construction of the notice provisions of Article 5160. Under appellant’s construction of Article 5160, H. Richards Oil Company could have recovered for materials furnished Luckie from March 1, 1962 through June 7, 1962. Under the construction of said Article given by the trial court, his recovery was limited to materials delivered from May 4, 1962 through June 7, 1962.

Appellant maintains that Section B(a) of Article 5160 is applicable as to the notices required for unpaid bills which requires a claimant as defined, among other requirements, to give the prime contractor notice within ninety days after the 10th day of the month next following each month in which labor was done or performed or material was delivered.

The trial court held that Section B(b) of Article 5160 applied. This section requires additional notices of claimants who do not have a direct contractual relationship with the prime contractor. It is undisputed that appellant H. Richards Oil Company did not have a direct contractual relationship with the appellee Harry Newton, Inc. His contractual relationship was wholly with W. J. Luckie, Inc. a subcontractor on the job.

We agree with the judgment of the trial court on this point.

Subsection (b) of Section B of Article 5160 is entitled “Additional Notices Required of Claimants Who Do Not Have a Direct Contractual Relationship With the Prime Contractor.”

This subsection continues as follows:

« ⅜ ⅜ ⅜ nor shall any suit be maintained under any provision of this Act by a claimant not having a direct contractual relationship with any prime contractor for material furnished or labor performed under the provisions of this Act unless such claimant has complied with those of the following additional requirements which are applicable to the claim:” (Emphasis added)

Then follow the additional requirements of which subparagraph (1) states the notice required and the time for filing same where a claimant has an agreement with a subcontractor by which payments are not to be made in full in the month next following each month in which the labor was performed or the materials were delivered or both.

Subparagraph (2), which is applicable to the case at bar, is as follows:

“Such Claimant shall have given written notice by certified or registered mail as described in the preceding subparagraph B(b) (1) to the prime contractor within thirty-six (36) days after the 10th day of the month next following each month in which the labor was done or performed, in whole or in part, or material delivered, in whole or in part, that payment therefor has not been received. A copy of the statement sent to the subcontractor shall suffice as such notice.”

We hold that the abovementioned sub-paragraph (2) of Article 5160B(b) applies to claimants who do not have a direct contractual relationship with the prime contractor where payments due have not been received either where they have been deferred as allowed under subparagraph (1), above, or where they are due and unpaid from month to month. This is the plain wording of the statute and its provisions must be followed.

Appellees’ fourth and fifth cross-points assign error of the trial court in allowing the application of certain credits to the appellant herein, purported to be $2,284.91, against the first portion of the Richards-Luckie open account rather than the last portion of such account so as to credit the liability, if any, of the appellees under Article 5160 because there is either no evidence or insufficient evidence to warrant or justify such application of credits. There is no need here to state whether or not the credit allowed was valid. Suffice it to say that there has been no showing by appellant as to what portion of the debt has been credited. The general rule as stated in 44 Tex.Jur.2d, Sec. 40, p. 693, is that when the debtor makes a payment without exercising his right to direct its application, the creditor may appropriate it to any debts due from the debtor he chooses. Thus he may, at his option, apply the payment to the earliest or latest obligation. Here the evidence is silent as to which portion of the debt appellant applied this credit. Where the right of the appropriation of payment has not been exercised by either debtor or creditor, the law steps in and makes the appropriation according to the equity and justice of the case. We agree that the trial court properly applied the credits under this rule.

Appellees’ sixth cross-point assigns error to the judgment of the trial court in awarding attorney’s fees to appellant because Article 2226 R.C.S., Vernon’s Ann. Civ. St. art. 2226, is not available to a claimant who has no direct contractual relationship with the prime contractor from whom such attorney’s fees are sought.

In support of this point, appellee relies on Standard Accident Insurance Company of Detroit v. Smith Perry Electric Company, Tex.Civ.App., 373 S.W.2d 97, application refused, n. r. e., by the Supreme Court. This refusal was accompanied by a Per Curiam opinion stating that such action is not to be taken as approving or disapproving the Court of Civil Appeals’ holding with reference to attorney’s fees.

We overrule appellees on this point and agree with the judgment of the trial court.

Neither Standard Accident Insurance Co., above, or F. & C. Engineering Co. v. Moore, Tex.Civ.App., 300 S.W.2d 323, writ ref., n. r. e., also cited by appellee, were cases involving Art. 5160 or a contract with the State.

Ferrier Brothers v. Brown, Tex.Civ.App., 362 S.W.2d 181, writ, ref., n. r. e., allows attorney’s fees in a situation such as the case at bar where suit was brought against the prime contractor and his surety under Article 5160.

Inasmuch as $2000.00 was stipulated to be a reasonable attorney’s fee, should such a fee be recoverable, we find no error in the court’s judgment in this respect.

Appellees’ cross-points seven through eleven complain further of the court’s allowance of attorney’s fees in this case. They maintain that the amount was excessive, that the court abused its discretion therein, that there was no evidence or insufficient evidence to sustain the award and that since appellees had tendered the amount finally recovered, no attorney’s fees should have been allowed.

We overrule these points.

With respect to a prior tender of the amount recovered, there was no pleading to this effect. The alleged tender did not include interest or attorney’s fees. The rule as to tender is stated in 55 Tex.Jur.2d, page 220, Sec. 9:

“To constitute an effectual tender, the amount offered by the debtor to his creditor must be at least equal to the whole amount then due or accrued on the debt or obligation. A tender must include everything to which the creditor is entitled, and a tender of any less sum is nugatory and ineffective as a tender. It must include interest due, costs then due or accrued, and attorney’s fees to which the creditor has become entitled by force of the agreement of the parties, as by commencement of suit or otherwise. * * * ”

By their cross-points twelve and thirteen, appellees complain of the court’s judgment in awarding interest to appellants on the amount recovered and in allowing the recovery of court costs by appellants against appellees.

We overrule these points.

With respect to interest, the Court, in Ferrier Brothers, above, cited with approval United States for Use and Benefit of Caldwell Foundry & Machine Company v. Texas Construction Company, 5 Cir., 237 F.2d 705, which allowed attorney’s fees and interest in a case under the Miller Act, 40 U.S.C.A. §§ 270a-270d. The Court of Civil Appeals then stated that the material portions of Art. 5160, par. A, has been taken from the Miller Act.

The trial court assessed the costs jointly and severally against all defendants. A judgment was rendered against them although for an amount less than appellant sought. To this extent appellant was successful. See Rule 131, Texas Rules of Civil Procedure. This is a matter within the discretion of the trial court. Rubin v. Adams, Tex.Civ.App., 368 S.W.2d 42, writ ref., n. r. e.

The judgment of the trial court is reversed and remanded for a new trial in accordance with this opinion.

Reversed and remanded.

HUGHES, Justice

(dissenting).

Appellees’ seventh point reads:

“The trial court erred in allowing attorneys’ fees against the Appellees in this case even though Article 2226 might generally be available to claimants of a subcontractor as against a prime contractor and its surety because the demands of Richards were excessive and the Appellees tendered the amounts of inchoate liability.”

Under this point appellees state:

“The trial court judicially knew as does this honorable court know that before this suit was filed and after the suit was filed, but before the venue hearing, the Appellees tendered money to Richards in satisfaction of all inchoate liability as predicated against them under Article 5160.”

Unless the materials furnished by appellant to the subcontractor, W. S. Luckie, Inc., were actually used on the highway project on which appellees were prime contractor and Surety, respectively, they were not liable for any of such materials so furnished under the provisions of Art. 5160, Vernon’s Ann.Tex.Civ.St. In my opinion, the admission of liability by appellees, above recited, is an admission that the materials furnished by appellant were used on such highway project, and that this case should not be reversed to prove an admitted fact.

I respectfully dissent from the order of reversal. I would affirm the judgment.

      . The part of Art. 5160C applicable here is as follows:
      “Claimant defined
      “C. A claimant is defined as anyone having direct contractual relationship with the Prime Contractor, or with a subcontractor, to perform the work or a part of the work, or to furnish labor or materials or both as a part of the work as follows:"

      . The part of Art. 5160B applicable here is as follows:
      “Rights of persons furnishing labor or material. Notice required
      “B. Every claimant who has furnished labor or material in the prosecution of the work provided for in such contract in which a Payment Bond is furnished as required hereinabove, and who has not been paid in full therefor, shall have the right, if his claim remains unpaid after the expiration of sixty (60) days after the filing of the claim as herein required, to sue the principal and the surety or sureties on the Payment Bond jointly or severally for the amount due on the balance thereof unpaid at the time of filing the claim or of the institution of the suit; provided:”

      . “(a) Notices Required for Unpaid Bills, other than notices solely for Retainages as hereinafter described.
      Such claimant shall have given within ninety (90) days after the 10th day of the month next following each month in which the labor was done or performed, in whole or in part, or material was delivered, in whole or in part, for which such claim is made, written notices of the claim by certified or registered mail, addressed to the prime contractor at his last known business address, or at his residence, and to the surety or sureties. Sueh notices shall be accompanied by a sworn statement of account stating in substance that the amount claimed is just and correct and that all just and lawful offsets, payments, and credits known to the affiant have been allowed. Sueh statement of account shall include therein the amount of any retainage or retainages applicable to the account that have not become due by virtue of terms of the contract between the claimant and the prime contractor or between the claimant and a subcontractor. When the claim is based on a written agreement, the claimant shall have the opinion to enclose, with the sworn statement of account, as such notice a true copy of such agreement and advising completion or value of partial completion of same.”

      . “(1) If any agreements exist between the claimant and any subcontractors by which payments are not to be made in full therefor in the month next following each month in which the labor was performed or the materials were delivered or both, such claimant shall have given written notice by certified or registered mail addressed to the prime contractor at his last known business address, or at his residence, within thirty-six (36) days after the 10th day of the month next following the commencement of the delivery of materials or the performance of labor that there has been agreed upon between the claimant and such subcontractors such retention of funds. Such notice shall indicate generally the nature of such retainage.”


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    Haskell H. HUNT et al., Appellants, v. MERCHANDISE MART, INC., Appellee.
    No. 16561.
    Court of Civil Appeals of Texas. Dallas.
    April 2, 1965.
    Rehearing Denied May 7, 1965.

      Wynne, Jaffe & Tinsley and Jim A. Watson, Dallas, for appellants.
    Bill C. Hunter, of Passman, Jones, Stewart, Andrews & Hunter, Dallas, for amicus curiae.
    Strasburger, Price, Kelton, Miller & Martin and Royal H. Brin, Jr., Dallas, for appellee.
   BATEMAN, Justice.

Haskell H. Hunt and wife appeal from a temporary injunction in favor of Merchandise Mart, Inc. restraining them from removing personal property from space rented by them from appellee under a written lease. The lease gave appellee a lien upon all of appellants’ personal property situated in the leased premises, and further provided that said property shall not be removed therefrom without the prior written consent of appellee until all arrearages in rent as well as any and all other sums of money to become due under the lease shall have been paid.

Early in the afternoon of Friday, November 13, 1964, appellant Hunt called Louise Burts, appellee’s office manager, on the telephone and asked her what “the building’s position” was on allowing things to be moved from the building. She replied that he would not be allowed to move his furniture or fixtures. In the same afternoon Hunt was in the elevator with Dave Hall, appellee’s building manager, and told him that he was going to remove certain showroom fixtures from the leased premises at four o’clock that afternoon, that a moving van was “on the way” and would be there at four o’clock. This suit was filed that same day, and after a nonjury hearing, of which appellants were duly notified and in which they participated with their attorney, a temporary injunction was granted restraining appellants from removing any personal property, except samples, stock in trade, merchandise and business records, from the leased premises. We think this was justified by the evidence.

By their first two points of error appellants seek reversal because there was no pleading or proof that appellee lacked an adequate legal remedy and no evidence of imminent or threatened injury or damage, irreparable or otherwise. They point to the undisputed facts that they had been tenants in appellee’s building for approximately ten years, that the personal property they were enjoined from removing was worth only about $650, that they were not then and had never been in default in payment of their rent, that there was no evidence to support appellee’s allegation that appellants were about to hide, secrete or sell their property, that neither of appellee’s witnesses could say what “irrevocable loss” (sic)- would be suffered if the injunction were not granted, and that appellants had assets worth about $295,000 and annual earnings of $70,000 to $80,000. It is also true that, although ap-pellee alleged that it would suffer immediate and irreparable injury, loss or damage unless a temporary restraining order were issued, the petition does not contain an allegation that appellee had no adequate remedy at law.

Merely to state in the petition that the plaintiff has no adequate remedy at law is to allege a conclusion, which would ordinarily be vulnerable to special exception. “The adequacy of a legal remedy must generally be tested by the circumstances of the particular case and the result that an injunction would accomplish. The test is one of proof, and not the allegations that may he required by the rules of pleading.” 31 Tex.Jur.2d, Injunctions, p. 110, § 44. (Italics ours) We think the facts alleged in the petition here, and certainly those shown by the evidence, are sufficient to demonstrate that appellee had no plain, speedy, or adequate remedy at law. 28 Am. Jur., Injunctions, p. 779, § 267; Sumner v. Crawford, 91 Tex. 129, 41 S.W. 994; Southwestern Telegraph & Telephone Co. v. Smithdeal, 104 Tex. 258, 136 S.W. 1049, 1052; Magnolia Petroleum Co. v. de Garcia, Tex.Civ.App., 126 S.W.2d 1006, no wr. hist.

Appellee had a contractual as well as a statutory lien on this property and had a right under the contract to insist that the property be left in its building. These were valuable rights. Appellants argue that ap-pellee has no right to prevent by injunction the removal of the encumbered property from its building because appellants are amply solvent and can be made to pay their obligations out of other property owned by them. No one should be casually deprived of his lien or his right to insist that the encumbered property be kept in a certain place on the theory that no harm will be suffered because the debtor is at the time of the hearing quite able to respond in damages. This lease covered a period of several more years after the hearing and ap-pellee had no assurance that appellants would remain solvent during the entire term of the lease.

It is suggested on behalf of appellants that there was actually an adequate legal remedy in that appellee could have sued out either a distress warrant or a writ of sequestration or applied for the appointment of a receiver. We do not agree. “It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” Watson v. Sutherland, 5 Wall. 74, 18 L.Ed. 580; quoted with approval in Sumner v. Crawford, 91 Tex. 129, 41 S.W. 994, 995, and Brazos River Conservation & Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W.2d 842, 846.

Neither the distress warrant nor sequestration meets this test. They are both ancillary proceedings. While it is true the statute, Vernon’s Ann.Civ.St. Art. 5239, authorizes the issuance of a distress warrant if the tenant is about to remove his property from the leased building,, and it was held in Du Bose v. Battle, Tex.Civ.App., 34 S.W. 148, that it can issue even though no rent is actually due, it was also held in Miller v. Lancaster, Tex.Civ.App., 41 S.W. 198, that no final judgment could be rendered in such an action unless and until rents became due and unpaid. Rule 610, Vernon’s Texas Rules of Civil Procedure, provides that a plaintiff seeking a distress warrant “shall make oath that the amount sued for is rent or advances,” and Rule 612 provides that the warrant shall command the officer to seize so much of the defendant’s property “as will be sufficient to satisfy the plaintiff’s demand.” If the oath required by Rule 610 is omitted the warrant will on motion be quashed. Kimbrough v. Powell, Tex.Civ.App., 13 S.W.2d 467, no wr. hist. And a distress warrant for an amount greater than that due is “illegally and unjustly sued out.” McKee v. Sims, 92 Tex. 51, 45 S.W. 564. Moreover, the “amount in controversy” determines the court to which the warrant shall be made returnable, Rule 612, T.R. C.P., and when returnable to the district or county court the plaintiff must file his petition in that court within ten days or the distress warrant will be subject to dismissal. Rule 620, T.R.C.P.; Bateman v. Maddox, 86 Tex. 546, 26 S.W. 51; Hartsfield v. Ferguson, Tex.Civ.App., 109 S.W.2d 364, no wr. hist.

There being no rent or advances due, appellee could not make the oath to an amount due, as required by Rule 610, and the officer would not be authorized to seize any of appellants’ property under Rules 612 and 613. The plaintiff would not know to which court the warrant should be made returnable, because in the absence of an amount in controversy it would be impossible to determine which court, if any, would have jurisdiction. Rule 612, T.R.C.P.

Sequestration proceedings would not avail as an adequate legal remedy, for under the fact situation presented here a writ of sequestration would not be authorized; ap-pellee’s case would not fall within any of the subdivisions of Art. 6840, V.A.C.S., which outline the situations in which the writ may issue. Moreover, appellee could not make the affidavit required by Rule 696, T.R.C.P.

Receivership under Art. 2293, V.A.C.S. would not have been a legal remedy at all, for it has long been recognized as an equitable remedy itself. Fikes v. Ports, Tex.Civ.App., 373 S.W.2d 806, wr. ref. n. r. e.; 49 Tex.Jur.2d, Receivers, pp. 13, 19, §§ 2, 8. Moreover, it is necessarily “ancillary to a pending principal action to establish or vindicate a right other than the appointment of a receiver.” 49 Tex. Jur.2d, p. 20, § 9. Furthermore, it has often been held to be a harsh, drastic or extraordinary remedy to be used cautiously and only in extraordinary cases; and, except where specifically authorized by statute, a receiver will not be appointed if another remedy exists, either legal or equitable. 49 Tex.Jur.2d, pp. 27, 34, §§ 12, 18; Quiroz v. Cantu, Tex.Civ.App., 119 S.W.2d 568, wr. dism.; Delcambre v. Murphy, Tex.Civ.App., 5 S.W.2d 789, no wr. hist.

Therefore, we hold that appellee did not have an adequate remedy at law under distress, sequestration or receivership proceedings, or any other, and overrule appellant’s first two points of error.

By their third point appellants say the court erred in granting the temporary injunction because the evidence showed that appellants had only a fractional interest in the property covered by the injunction. Hunt testified that several of the manufacturers whose merchandise he sold had contributed substantially to the purchase of the property in question. He did not make it clear just what interest the manufacturers became entitled to, if any, in the actual ownership of the property. The trial court may have concluded that these contributions were intended as loans or gratuitous bonus payments to Hunt. In any event, only the appellants were enjoined, and they are in no position to complain of being prohibited from removing property belonging partially to others. The third point of error is overruled.

Appellants’ fourth point asserts error in the granting of the temporary injunction in the light of the facts that appel-lee’s officer who signed the affidavit at the end of the petition did not read the petition, but merely “scanned through it,” and did not know the notary public who signed the jurat, that the notary was not present when she signed; that no threat to remove the property had been made to her, and that her affidavit was based upon hearsay. This point is without merit. A full and complete hearing of the matter was had, all parties being present and represented by counsel. That being true, the defects, if any, in the verification of the petition do not affect the validity of the temporary injunction. Chesterfield Finance Co. v. State of Texas, Tex.Civ.App., 331 S.W.2d 368, wr. ref.; Acme Letter Shop v. State of Texas, Tex.Civ.App., 342 S.W.2d 770, wr. ref. n. r. e.; Brown v. Munger Farm Co., Tex.Civ.App., 87 S.W.2d 527, no wr. hist.; Smith v. City of Dallas, Tex.Civ.App., 36 S.W.2d 547, wr. dism.

By their fifth and last point of error appellants complain of the exclusion of certain testimony proffered by them. They say that the purpose of this testimony was to show that appellee had not entered the court of equity with clean hands. The witness Dave Hall was asked by appellants* counsel concerning another lease, one between appellee and National Fashion Exhibitors of America. The court sustained appellee’s objection that the lease itself would be the best evidence of its contents. Appellants do not bring to us a bill of exceptions showing the contents of the lease in question or what the witness would have testified if he had been permitted to answer the question propounded to him. It is well settled that under these circumstances nothing is presented to the appellate court for review. J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698. It is also obvious from the record and briefs that appellants have not carried the burden of showing such prejudice or harm under this point as would justify a reversal of the order appealed from. Rule 434, T.R.C.P. The fifth point is therefore overruled.

No reversible error being shown, the judgment is

Affirmed.

ON MOTION FOR REHEARING

Appellants complain that in our opinion we did not mention Hunt’s testimony that: (1) although he did not deny telling Dave Hall that he was going to remove certain fixtures from the building at four o’clock that afternoon, he was merely jesting; (2) that although he was not served with a restraining order until the next day, he made no effort to remove anything the day of the conversation; and (3) that he had no intention to move anything from the premises; or Dave Hall’s testimony to the effect that if Hunt had tried to move out the people on the dock woud have called him, Hall, and he would ask him not to move it.

We did not mention this testimony as we did not think it in any way controlled the decision. The trial judge heard all of this testimony and was in much better position than we are to determine whether Hunt was jesting when he threatened to move his fixtures, and whether or not he really intended to do so, and whether the fact that he did not do so on the day he said he would was sufficient to nullify the effect of the threat to do so; also whether the telephone call from “the people on the dock” to the building manager would have so effectively prevented the removal of the property from the building as to make the temporary injunction unnecessary or the granting thereof wrongful. We cannot say that any of those things point to an abuse of discretion by the trial judge.

Appellants also say that our opinion is in conflict with Kostoff v. Harris, Tex.Civ.App., 266 S.W.2d 204, wr. ref. n. r. e., wherein we reversed an order granting a temporary injunction because the plaintiff had failed to show that an injurious wrong, irreparable in nature, was imminently threatened. We do not consider the two opinions to be in conflict. In Kostoff the parties had had a personal encounter and the plaintiff obtained a temporary injunction restraining the defendant from further molesting him on a petition alleging that the defendant was threatening to give trouble, etc. However, the plaintiff admitted on the witness stand that no sueh threat had occurred. The difference between the two cases is readily seen.

Accompanying appellants’ motion for rehearing is a motion for additional findings which consists of a group of interrogatories propounded to us. We feel that we have made a complete statement of the facts of the case. Rule 455, T.R.C.P. does not require us to detail the evidence supporting our findings, or evidence which may conflict therewith, which is what the motion urges us to do. Thaxton v. Reed, Tex.Civ.App., 339 S.W.2d 241, wr. ref. n. r. e.

The motions for rehearing and for additional findings of fact are both overruled.

Overruled.


author: DIXON, Chief Justice.

text:
    FIREMAN’S FUND INSURANCE COMPANY, Appellant, v. ABILENE LIVESTOCK AUCTION COMPANY, Appellee.
    No. 16490.
    Court of Civil Appeals of Texas. Dallas.
    May 14, 1965.
    Rehearing Denied June 4, 1965.
    Brundidge, Fountain, Elliott & Churchill, Dallas, for appellant.
    G. H. Kelsoe, Jr., and Robert M. Kennedy, Dallas, for appellee.
   DIXON, Chief Justice.

This appeal calls on us to construe 7 U.S. C.A. 201 et seq., known as the Packers and Stockyards Act, hereinafter called the Act, with respect to a dealer’s bond executed for the purpose of complying with Section 204 of the Act.

Abilene Livestock Auction Company, ap-pellee, of Abilene, Texas, brought suit against Gene Pope of Clovis, New Mexico as principal and appellant Fireman’s Fund Insurance Company as surety on a $5,000 livestock dealer’s bond. Following a non-jury trial judgment was rendered in favor of appellee for $4,275.40 against both Pope and appellant.

The facts are undisputed. On or about June 14, 1960 Gene Pope telephoned from Clovis, New Mexico, to appellee at Abilene, Texas, requesting that appellee purchase for him a lot of stocker cattle and that appellee draw a draft on Pope’s Clovis, New Mexico, bank account to cover the purchase price of $4,275.40. Pope sent his truck to Abilene and picked up the cattle. Upon presentation of Pope’s draft to the Clovis bank payment was refused and the draft was returned to appellee unhonored due to insufficient funds.

At the time of these transactions Pope was a registered dealer at Clovis, New Mexico, under the terms of the Act. He had not registered as a dealer at Abilene, Texas. Appellee operated at Abilene a posted stockyard in compliance with Section 202 of the Act.

In its one point on appeal appellant contends that the trial court erred in holding that a bond given by Pope to qualify as a registered dealer under 7 U.S.C.A. 201 et seq. at Clovis, New Mexico, covers a purchase of cattle made by Pope at Abilene, Texas at a public stockyard at which Pope was not registered. We do not agree with appellant.

Section 204 of the Act provides that the Secretary of Agriculture may require reasonable bonds from every dealer under such rules and regulations as he may prescribe.

Title 9, Code of Federal Regulations, in effect at the time this bond was executed, contains these provisions:

“MARKET AGENCY AND DEALER BONDS
“§ 201.29 * * * Every * * * dealer, except packer buyers registered as dealers to purchase livestock for slaughter only, shall, * * * execute and thereafter maintain, ⅜ * * a reasonable bond, * * * to secure the performance of obligations incurred as such market agency or dealer at posted stockyards: * * *.
⅜ * * * * ⅝
“§ 201.31 * * * Each market agency and dealer bond shall contain conditions * * * which conditions shall be as follows or in terms to provide equivalent protection.
# ⅜ ⅜ ⅝ ‡
“(c) When the principal operates as a dealer (trader) :
“If the said principal shall pay, when due, to the person or persons entitled thereto- the purchase price for all livestock purchased by said principal at a public stockyard as defined in the Packers and Stockyards Act.” (Emphasis supplied).

In view of the terms of the Act itself and the broad language of the regulations above quoted we have concluded that a statutory bond executed pursuant to the Act covers the transactions of a registered dealer whether at a stockyard at which he is registered or some other duly posted stockyard.

There is another ground for our holding that appellant is liable in this case: the terms of this bond are sufficiently broad to include coverage of Pope’s purchase at ap-pellee’s stockyard as a valid common law obligation.

The condition of the bond itself is that “* ⅜ * said Principal shall pay, when due, to the person or persons entitled thereto the purchase price for all livestock purchased by said Principal at a public stockyard as defined in the Packers and Stockyards Act of 1921 as amended; * * (Emphasis supplied).

It is undisputed that at all times here involved appellee operated at Abilene, Texas, a “public stockyard as defined in the Packers and Stockyards Act of 1921 as amended.”

It has often been held that where a statutory bond may be conditioned more broadly than the statute requires, its ex-trastatutory provisions will be enforced as valid common law obligations if the bond was entered into voluntarily for a valid consideration and is not contrary to public policy. Shade v. Anderson, Tex.Civ.App., 36 S.W.2d 1041; Sullivan v. City of Galveston, Tex.Civ.App., 17 S.W.2d 478, 490 (aff. Tex.Com.App., 34 S.W.2d 808); Southern Surety Co. v. Nalle & Co., Tex.Com.App., 242 S.W. 197, 203; Maddox v. Hollums, Tex.Civ.App., 241 S.W. 1053; United States Fidelity & Guaranty Co. v. Rainey, 120 Tenn. 357, 113 S.W. 397, 405; State ex rel. Hedrick v. Hartford Accident & Indemnity Co., 154 Kan. 79, 114 P.2d 812, 816; Clatsop County ex rel. Hildebrand v. Feldschau, 101 Or. 369, 199 P. 953, 18 A.L.R. 1221; Illinois Surety Co. v. United States, 9 Cir., 251 F. 823; 47 Tex.Jur.2d 477; 11 C.J.S. Bonds § 25, p. 413; 43 Amjur. 888. Duress and want of consideration are affirmative defenses which must be specially pled and proved to be available. Rules 93, 94, Texas Rules of Civil Procedure, Federal Rule 8(c). There are no such pleadings or proof in this record. This bond is not contrary to public policy. Therefore appellant is bound by the terms of the bond as a common law obligation even if it should be said that the bond -is more broadly conditioned than the Act requires.

Appellant’s point on appeal is overruled.

The judgment of the trial court is affirmed.

BATEMAN, J., not sitting.

      . Though the views and opinions of a Branch Ohief in a Government Department are not binding on courts we find in this record a statement by a Branch Ohief of the Department of Agriculture which we think is worthy of our consideration. The statement is in a letter to one of appellee’s counsel:
      “Our interpretation of the bonds and the intent of the bonds filed under the Act is that they shall cover all transactions of a registrant whether at a stockyard at which he is registered or at any other location.
      Sincerely yours,
      H. L. Jones /s/
      H. L. Jones, Chief
      Bates and Registrations Branch
      Packers and Stockyards Division”


author: MASSEY, Chief Justice.

text:
    Julius BRUNER et ux., Appellants, v. The STATE of Texas, Appellee.
    No. 16634.
    Court of Civil Appeals of Texas. Fort Worth.
    May 7, 1965.
    Rehearing Denied June 11, 1965.

      Martin & Tackett, and Harold D. Hammett, Fort Worth, for appellants.
    Waggoner Carr, A tty. Gen. of Texas, and Hawthorne Phillips, Stanton Stone, T. B. Wright, Carroll R. Graham, William R. Hemphill, Fred M. Talkington, F. William Colburn, Austin, for appellee.
   MASSEY, Chief Justice.

This is a condemnation case, from the judgment in which condemnees Julius Bruner and his wife appealed because of their dissatisfaction with the amount awarded for the property taken by con-demnor for highway purposes. Involved is only the value of the property taken, there being no issue on dimunition of the value of the remainder of the condemnees’ property.

Judgment affirmed.

The main questions presented on appeal consist of complaints because of the exclusion of testimony. Among such was the testimony of the condemnees’ expert witness L. G. Key as to his estimate of the value of the property taken. This exclusion was error, but not reversible error. Additional was evidence tendered by this and other expert witnesses concerning the amounts for which property, allegedly comparable, had been sold in the vicinity of that condemned. There were five sales of such property, according to condemnees’ theory, and all were excluded. The trial court excluded evidence bearing upon the sale of one parcel, a 21 acre tract, on the theory that the evidence established a trade of lands rather than a sale or sales. The court excluded evidence bearing upon the sale of the other four parcels, as well as the 21 acre tract, because each of the five parcels had “railroad frontage”, i. e., abutted directly upon existing railroad facilities or was very near to trackage. The condemned property was between one-quarter mile to one-half mile distant from existing trackage.

In addition, but coupled with the aforesaid complaint (s) and of concern if it becomes necessary in the test of whether the foregoing, as error, amounts to reversible error under the provisions of Texas Rules of Civil Procedure 434, (that is, that the exclusion of condemnees’ evidence was reasonably calculated to cause and probably did cause the jury to return a verdict other than the verdict it did return had such evidence been admitted) is condemnees’ contention that the trial court was unduly liberal when he permitted the condemnor to introduce evidence showing amounts for which property, allegedly comparable, had been sold in the area near the condemned property. Condemnees claim that said property, two tracts sold severally and by different grantors, was not comparable to that condemned and hence the sales did not amount to comparable sales, — but that in any event, though it be conceded that evidence thereof was properly admitted, the reception of such evidence by the jury on a trial pursuant to which there had been excluded from their consideration the aforementioned proffered evidence of condemnees demonstrates that condemnees sustained such prejudice that the error claimed was reversible.

To aid in understanding the situation, we include for purposes of the opinion a map or plat, drawn to scale so that the location, shape and size of the aforementioned tracts of property may be visualized.

In the map or plat may be observed two tracts located in the north and northwest, the sales of which were received by the trial court upon tender of the condemnor as comparable sales. The other four tracts shown by the map or plat represent property, the sales of which were tendered as part of the evidence of condemnees. The fifth tract, heretofore mentioned, lies further south and is not shown. Shown is the location of the highway for purposes of which the condemnees’ land was taken, being a freeway-type facility. The amount of land taken was 33.881 acres out of the 439 acre total belonging to condemnees.

Preliminary to discussion we desire to cite certain language from the case of Hays v. State, 342 S.W.2d 167, 170 (Dallas Civ.App., 1960, writ, ref., n. r. e.), as follows: “Evidence of sales of comparable properties may be offered under three conditions: (I)on direct examination of expert or lay witnesses as independent substantive evidence of the value of the property to which the comparison relates, or (II) on direct examination of the value-witness to give an account of the factual basis upon which he founds his opinion on the issue of value of the real estate in controversy, or (III) on cross-examination of the value-witness to test his knowledge, experience and investigation and thus affect the weight to be given to his opinions.”

in view of the majority opinion of the Supreme Court in State of Texas v. Oakley, 163 Tex. 463, 356 S.W.2d 909, 95 A.L.R.2d 1207 (1962), we believe that it is now established that in condemnation cases an expert value-witness, after having been qualified as such, is not to be so limited on direct examination that he cannot go into details of investigation and findings on the matter of comparable sales and testify as to what knowledge he acquired by way of hearsay concerning the prices paid as consideration therefor, but that he may do so provided such evidence is received for consideration by the jury with substantial safeguards against any misuse.

Even before such opinion by the Supreme Court, a value-witness was always permitted to give his opinion of the value of the property condemned, after he had been qualified as an expert, leaving any testimony in connection with matters taken into consideration in arriving at the opinion value given, such as hearsay prices paid in comparable sales, etc., to be developed on cross-examination. This is the Condition III mentioned in the case of Hays v. State, supra.

In view of the Supreme Court’s decision in Oakley, it would appear that such testimony may also be given under Condition II (in Hays v. State) and during the course of direct interrogation, provided there are substantial safeguards against any misuse or misconception on the part of the jury concerning the value of such testimony. In the Oakley case it was held that such substantial safeguard was afforded by the following instruction of the court to the jury: “‘You are instructed that testimony by witnesses not having first hand knowledge of the matter stated that certain properties had sold for certain prices shall not be considered as evidence that such properties have sold or that such properties have sold for the prices stated, or as evidence of the market value of the property involved, but may only be considered as being information which the witnesses testified they gathered for the purpose of forming an opinion of the market value of the property involved.’” What we have stated hereinabove relates to testimony as to prices of comparable property which the trial court permits. It would not have application to excluded testimony. Later in this opinion we will discuss the propriety of excluding such testimony upon the court’s decision that the property sold is not sufficiently comparable to that condemned.

As applied to the tract shown by the map or plat to be located in the southwest corner of condemnees’ 439 acres an explanation is warranted. Its size is 21 acres. The land formerly belonged to con-demnees. It was conveyed, as in six separate parcels, to grantees named in the instruments of conveyance. However, as shown by the evidence in condemnees’ bill of exceptions, it amounted to a single sale from condemnees’ standpoint. The railroad company, as owner of the trackage adjacent thereto, desired the land for development as industrial property. It agreed with condemnees on a valuation for purposes of their sale of the entire 21 acres, at $2,500.00 per acre. It was further agreed that condemnees would receive this price, •per acre, from third persons. Reason therefor was that the railroad company owned property in other states or locations in this state which said third persons desired to buy, and for tax purposes there was an advantage to be realized in having said third persons pay the cash for the •condemnees’ land, but simultaneously to •deliver title thereto to the railroad company in exchange for the latter’s property they .actually desired. This was done, condem-nees receiving the agreed price for their land, but the record title thereto passing ■through the hands of said third persons .and thence into the hands of the railroad •company. Between the third persons and the railroad company the transaction was :an even trade of properties, but as between the condemnees and the other persons it was a bona fide sale. If the property of the condemnees thereby transferred was comparable to the property condemned and under consideration in the present instance it would constitute a comparable sale.

The nature of the proof relative thereto tendered by the condemnees in their bill of exceptions was such that it amounted to independent substantive evidence of the value of the 21 acres in that the testimony as to price received by the condem-nees was from original parties. In other words the testimony was not hearsay, but was direct and independent substantive evidence. It therefore would be material and relevant to the ultimate issue to be determined, i. e., the value of the property taken in condemnation, — through additional satisfactory evidence to the effect that such property was comparable to the 21 acres. Appellees contend that such additional evidence was supplied. Unless the trial court was warranted in excluding it, under a proper judicial determination that the properties were not truly comparable, error would be apparent and reversibility would depend upon applicability of T.R.C.P. 434.

Such 21 acre tract and the other four tracts as to which the condemnees tendered evidence as comparable sales, or sales of comparable property, in support of the witnesses’ stated opinion on the market value of the land condemned, were either adjacent or near-adjacent to existing railroad trackage. The condemned property was over a quarter of a mile removed therefrom. Part of it was at a considerably greater distance. Testimony from an agent of the railroad company, however, was to the effect that trackage would be made available to said portion of condemnees’ total acreage as and when it might be developed industrially. The same thing applied to all of condemnees’ property. There was no issue made, but the evidence undis-putably established that the highest and best use of all of the condemnees’ property, including that taken, was for industrial development. As of the date condemnees’ land was taken lack of convenient availability of water, sewer and gas hampered its development as such. It was shown that the condition will be remedied in the not too distant future. All the tracts as to which condemnees tendered evidence as comparable property either have some or all such utilities, or will probably’^have such at an earlier time than that condemned. It was established by the evidence that a considerable sum would be necessary to be expended in order to have such services extended to said area. All .’such as presently exist lie south of the nearest trackage.

A discretion is lodged in the trial court relative to whether evidence tendered purporting to show sales of comparable property to that condemned shall or shall not be admitted. Chaney v. Coleman, 77 Tex. 100, 13 S.W. 850 (1890); City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 816 (1954); McCormick & Ray, Texas Law of Evidence, 2d Ed., p. 371, “Similar Acts and Transactions”, § 1524, “Sales of Similar Property to Evidence Value”, (1st Ed., p. 908, § 699); 118 A.L.R. 869 and 174 A.L.R. 386, Annotation: “Admissibility on issue of value of real property of evidence of sale price of other real property”. In other words there is an area in which such character of evidence constitutes such that the judge presiding over the trial court has the final decision upon the question of whether the subject matter of the sale or sales does or does not qualify as similar property to that condemned. Within such area it is the trial court’s exclusive discretion to rule upon whether the evidence tendered shall or shall not be admitted where an appellate court should not disturb the decision the trial court rendered regardless of whether the appellate judges believe it would have been proper to have ruled in a manner other than the trial court did rule. Within such area the trial court could not be held to have abused his discretion whichever way he might rule. We are of the opinion that condemnees’ tendered evidence relative to comparable property sales fell within such area. That being true we hold that no reversible error resulted because of its exclusion. In this connection see also 22 Tex.Jur.2d, p. 422, “Eminent Domain”, § 300, “ — Comparison with sales of other land in vicinity”. Rayburn, Tex.Law of Condemnation, p. 382, § 117, “Market Sales, Comparative Market Values”.

Testimony tendered by the con-demnees’ witness L. G. Key included his opinion of the value of the property condemned. That opinion, independently proffered, as shown by a bill of exception, was not necessarily conditioned upon consideration of the price paid for other property on independent sales excluded by the trial court. This exclusion was error. Apparently it was inadvertently excluded as the result of some confusion. The witness was undoubtedly qualified to give his opinion. We have tested the prejudice to the condemnees resulting from the exclusion of Mr. Key’s opinion. In light of the whole record we have concluded that the effect of the exclusion was not such that it amounted to reversible error under the provisions of T.R.C.P. 434. Condemnee Bruner and two other expert witnesses for ap-pellees testified as to value. As already noted, they were not allowed to testify concerning specific sales of property they considered comparable.

We have stated hereinabove that there is an area in which admissibility of evidence bearing upon sales of allegedly comparable property lies exclusively within the province of the trial court, i. e., an area where the appellate court would err should it assume the right to reverse the trial court’s decision upon admissibility for it could not constitute an abuse of discretion. What was said in that connection would have full application to evidence upon allegedly comparable sales tendered on the trial by condemnor, and admitted by the trial court. These were sales of two tracts, those shown at the extreme top of the map or plat made a part of this opinion; that is to the north and northwest of the condemned property. Reception of such evidence would not be error.

As heretofore mentioned, it was not a matter of dispute between the parties as to the highest and best use of the condemned property, for it was established and not disputed that it should be developed as industrial property. Condemnee Julius Bruner tendered his own testimony to the effect that he purchased the property in 1948 with the purpose of so developing it. Such proffered evidence was excluded. Con-demnees could not have been prejudiced thereby and point of error complaining of the exclusion is overruled for this reason. Bruner’s testimony to the effect of certain steps he had taken concerning plans for such development, including the expenditure of funds for surveys, mapping the property, etc., prior to the date the con-demnor took the same was likewise excluded. The proffered testimony related to “paper planning” only, being wholly speculative even though professional engineering expense had been incurred incident thereto. The paper study and map of the engineers was also tendered. It was excluded. The condemnees had done nothing toward altering the surface or subsurface of the property, nor had any improvement been placed upon it pursuant to such plans. Had the matter of highest and best use of the condemned property been at issue the proffered evidence might have been admissible if the tendered thereof had been limited to such purpose. Even so, “how the property might best be developed” was not a matter for the jury’s consideration. Tender was not limited as to purpose anyway. The evidence was not relevant to a matter at issue between the parties. The trial court did not err in excluding it. Lower Nueces River Water Supply District v. Collins, 357 S.W.2d 449, 452 (San Antonio Civ.App., 1962, writ ref., n. r. e.) and authorities cited.

The single special issue submitted to the jury inquired, as follows: “From a preponderance of the evidence what do you find was the market value of the strip of land condemned by the state for highway purposes at the time it was condemned, considered as severed land?” “Market value” was defined as “the price the property will bring when offered for sale by one who desires to sell but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying.”

The trial court’s definition given the term “market value” is the Carpenter case definition. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 979 (1936). There was no complaint made of the definition given. Condemnees filed no objections to the court’s charge. They did, however, tender a specially requested instruction, which was not given. It read: “You are further instructed that the term ‘market value’ as used herein means the price which the property would bring when it is offered for sale by one who desires, but is not obliged to sell, and is bought by one who is under no necessity of buying it, taking into consideration all of the uses to which it is reasonably adaptable and for which it either is or in all reasonable probability will become available within the reasonable future.” The requested definition is one suggested in certain circumstances in City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 815 (1954), where the following language appears: “On the other hand, if it appears reasonably probable to the trial judge that the wants and needs of the particular community may result, within a reasonable time, in the lifting of restrictions, he should admit testimony of present value based on prospective use of the property for purposes not then available. Whenever such testimony is admitted it would not do violence to the definition of ‘market value’ suggested in the Carpenter case by adding thereto so as to have it read: (here is quoted a definition identical to that ap-pellees requested).”

Even though we consider ap-pellees’ right to complain as not having been waived by a failure to object to the definition which was given, yet would we overrule their point of error which complains of the failure to give a definition like that suggested by Cannizzo. No case they have cited holds that it was error to give the definition suggested by the Carpenter ease; all are cases where the definition suggested in Cannizzo was given and where the appellate courts rejected contentions of error because such was done. They do not constitute any authority for condemnees’ contention that error existed in the refusal to give such definition.

Judgment is affirmed.


author: MOORE, Justice.

text:
    J. B. WOOLEY, Appellant, v. Nora WEST, Appellee.
    No. 124.
    Court of Civil Appeals of Texas. Tyler.
    April 15, 1965.
    Appellant’s Rehearing Denied and Appellee’s Rehearing Granted May 27, 1965.
    J. B. Sallas, Crockett, for appellant.
    Earle P. Adams, Adams & Granberry, Crockett, Billy H. Gragg, Palestine, for appellee.
   MOORE, Justice.

Plaintiff, Nora West, filed this suit against defendant, J. B. Wooley, in trespass to try title and alternatively for a partition of a seven-acre tract of land with a house and other improvements situated thereon. Mrs. West and Mr. Wooley are brother and sister, and prior to the purchase of the property in question had been living in Houston, Texas, and had been closely associated. Upon retiring from their employment they decided to move back to Houston County, their original home, and for a year or more before purchasing the property in controversy they had made several trips back and forth from Houston to Crockett searching for a suitable place to buy, and finally purchased the property on the 24th day of October, 1958. The deed to the property named both Mrs. West and Mr. Wooley as grantees. The initial payment on the purchase price in the amount of $1,600.00 was paid with funds drawn from their joint bank account in a Houston bank. Both of them signed the vendor’s lien note for $3,800.00, representing the balance due on the purchase price. This note, together with a lien, was assigned by the vendor to Davy Crockett Federal Savings & Loan Association and was renewed and extended by a deed of trust which was signed by each of them providing for monthly payments for 120 months beginning on the 10th day of September, 1958. On the 16th day of December, 1960, after 26 of the monthly payments had been made, Mrs. West paid the loan company the balance of $2,991.11 then owing on the note, by a check drawn on the joint account of Mrs. West and her sister Mrs. Frankie Anderson.

After the purchase of the property, both Mrs. West and Mr. Wooley and their sister and father moved in the house where all of them continued to live thereon until the 31st day of July, 1961, when Mrs. West moved away claiming that Mr. Wooley forced her to leave. Wooley continued to live there until the 13th day of March, 1963, when the parties agreed to sell the property. Meanwhile, this suit had been filed by Mrs. West. When the sale was consummated the parties agreed in writing to deposit the proceeds in the amount of $6,-492.85 into the registry of the court subject to final judgment and without prejudice to the rights of either party.

Plaintiff’s suit was in trespass to try title and alternatively for partition, alleging that she had paid all of the purchase price out of her separate funds, and therefore was entitled to all of the proceeds from the sale and in the alternative requested that she be reimbursed for expenditures in preserving the property and for the sum of $2,991.11 expended in discharging the lien and for other equitable relief adjusting the rights of the parties.

Defendant’s answer consisted of a plea of not guilty and a general denial.

Trial was before a jury and, in substance, the jury found: (1) that all of the $1,-600.00 withdrawn from the joint account of the plaintiff and defendant, and paid on the purchase price of the land, did not belong to the plaintiff,. (2) but that only the sum of $800.00 of the $1,600.00 belonged to the plaintiff; (3) that plaintiff did not pay all of the 26 monthly installments in the amount of $50.00 each with her own separate funds; (4) that some of the monthly payments were made with funds belonging to the defendant; (5) that only one-half of the monthly payments totaling $650.00 was made from funds belonging to the plaintiff; (6) that plaintiff made proper and reasonably necessary expenditures for the preservation of the property, (7) amounting to $303.00; (8) that the defendant did not prevent plaintiff from occupying the premises, (9) and she was not, therefore, entitled to any damages. The jury further found that (10) the plaintiff and defendant agreed between themselves that they would own the property deeded to them in equal proportions; (11) and that the plaintiff and defendant each contributed substantially the same amount of money with which to purchase the property; (12) and that defendant contributed more services than the plaintiff toward the purchase price of the property; and (13) that the value of the defendant’s services over and above those of the plaintiff amounted to $250.00.

The defendant made a motion for judgment on the verdict contending that the jury’s finding on Special Issue No. 11 amounted to a finding that he had paid one-half of all the purchase price and he was therefore entitled to one-half of the proceeds from the sale. The trial court overruled appellant’s motion and entered a judgment for the plaintiff as follows:

“ * * * and the Court finds that from the fund of $6,492.85 deposited in the registry of the Court by Plaintiff and Defendant according to their written stipulation, Plaintiff should be reimbursed and paid the sum of $2,991.11 that she paid in liquidation of the balance due upon the purchase price note given for the property in controversy as proved by the undisputed evidence, with interest thereon at the rate of six per cent per annum from December 16, 1960, to April 1, 1963, amounting to $411.26, plus the sum of $303.00 found by the jury in answer to Special Issue No. 7; that Defendant should be reimbursed from such fund the sum of $250.00 found by the jury in answer to Special Issue No. 13; and that the balance remaining in such fund, after reimbursement to Plaintiff and Defendant, should be divided equally between Plaintiff and Defendant. * * * ”

Appellant has appealed from the judgment without filing a motion for new trial. His basic complaint is that the court erred in failing to enter judgment on the verdict. He contends (1) that the verdict requires that the funds be divided equally, and that to allow appellee reimbursement for funds expended would erroneously disregard the jury’s finding to Special Issue No. 10 finding that the parties agreed that they would own the property in equal proportions, and Special Issue No. 11 finding appellant contributed substantially the same amount of money on the purchase price; (2) that the judgment allowing a reimbursement in the amount of $303.00 for taxes, insurance and repairs is not in conformity with the jury’s verdict in Special Issues Nos. 6 and 7; and (3) that as a matter of law appellee is not entitled to interest on the money expended in discharging the lien.

Appellee takes the position that the court correctly disregarded the jury’s findings to Special Issue No. 11 because the undisputed evidence shows that she discharged the lien in the amount of $2,991.11 with her own separate funds and the parties being mere co-tenants, plaintiff had a right to reimbursement with interest, and also had an equitable right of reimbursement for money expended in preserving the property in the amount of $303.00.

By cross-assignments appellee further contends that the court erred in submitting Special Issues Nos. 12 and 13 over her objection and rendering judgment thereon because there was no pleading or evidence showing appellant’s right to recover the sum of $250.00 for services performed in connection with the purchase of the property.

The evidence shows that the deed under which Mrs. West held the property was made to her and her brother jointly, the interest of each not being stated. Presumptively, but rebuttably so, each acquired an equal interest. Cage v. Tucker’s Heirs, 14 Tex.Civ.App. 316, 37 S.W. 180; Keltner v. Glenn, Tex.Civ.App., 81 S.W.2d 1051; Ford v. Anderson, 83 S.W.2d 443 (Tex.Civ.App.).

Contrary to her contention, the jury determined, in response to Special Issues Nos. 1 and 2, that Mrs. West had not furnished all of the money in making the down payment, but that the amount thereof had been contributed equally by them. In Special Issue No. 10 the jury found that they agreed that they would own the property in equal proportions. In Special Issues 3, 4 and 5 the jury found that the parties contributed equally in the payment of the first 26 installments on the vendor’s lien note. After such payments the balance due on the note and lien amounted to $2,991.11. It is without dispute that the note was paid by a check drawn on the joint account of Mrs. West and Mrs. Anderson. Both Mrs. West and Mrs. Anderson testified that Mrs. West deposited the money in the Crockett State Bank in the joint account immediately after Mrs. West sold her home in Houston, so that either of them could use same in taking care of their aged father.

Appellant’s claim to one-half of all proceeds from the sale is based upon the following finding:

“SPECIAL ISSUE NO. 11
“Do you find from a preponderance of the evidence that Nora West and J. B. Wooley contributed substantially the same amount of money, with which they purchased the property, from Ada lone Teems and others on October 24, 1958?
“Answer: YES.”

As framed, the issue does not make it clear as to whether the court was referring to the contribution to that part of the purchase price paid on the date of the purchase, or whether the court was inquiring as to the entire amount of the purchase price eventually paid. If it refers to the former, it would be merely repetitious of Special Issues Nos. 1 and 2 wherein the jury found that they each contributed an equal amount on the down payment. If the issue has reference to the payment of the entire amount of the purchase price, then we fail to find any evidence of probative force which would support the finding. Although there is testimony showing that Wooley made some of the monthly payments, he admitted that he owned no interest in the house in Houston sold by Mrs. West, nor did he claim any interest in the joint bank account of Mrs. West and Mrs. Anderson from which the funds were withdrawn in payment of the indebtedness. He testified as follows:

“Q. And you don’t deny that Mrs. West finally paid it off with money she had?
“A. She did, she told me that she went up there and paid it.
“Q. All right. Mr. Wooley, you have stated here on the witness stand that the last payment that was made on the place she made with her separate money. For your information, I will tell you that payment was $2,991.11. Do you know that?
“A. Yes, sir. I know it.”

In view of this statement, we think the trial court correctly ruled that the undisputed evidence showed that Mrs. West paid the sum of $2,991.11 from her own separate funds. If the fact was undisputed the trial court was authorized, on proper motion and notice, to disregard the jury’s finding to Special Issue No. 11 and render judgment decreeing reimbursement based upon the undisputed evidence. Rinehart v. Tomerlin, 227 S.W.2d 876 (Tex.Civ.App.); Rules 279, 301, Texas Rules of Civil Procedure.

Based upon the jury’s findings to Special Issues Nos. 6 and 7, the court also entered judgment for appellee reimbursing her for reasonably necessary expenditures of $303.-00 for payment of taxes, insurance and repairs in preservation of the property.

As a general proposition, a co-tenant who pays more than his share of a debt secured by a mortgage or other lien on the common property, or who makes an outlay for necessary or proper preservation thereof is entitled to reimbursements from his co-tenants to the extent to which he paid their share of the indebtedness. TJie right of contribution arises from equitable considerations, and rests upon the principle that where all are equally liable for the payment of a debt or common burden, all are bound equally to contribute to that purpose even though the paying co-tenant at the time of the payment, a.sserted exclusive title to the common property or believed himself the sole owner thereof. Roberts v. Roberts, 278 S.W. 937 (Tex.Civ.App.); Tapp v. Tapp, Tex.Civ.App., 134 S.W.2d 683; Schluter v. Sell, Tex.Civ.App., 194 S.W.2d 125; 15 T.J.2d, Sec. 12, pp. 169-170; 48 A.L.R.2d, pp. 1305-1324. We think the trial court correctly ruled that the appellee was entitled to reimbursement for these items.

Appellant contends that even though ap-pellee should be entitled to reimbursement of the amount paid in discharge of the lien, she should not be permitted to recover interest on all the money advanced by her, because only one-half of that advanced was for the benefit of appellant, the other half being for her own benefit, and therefore any recovery for interest should be limited to interest on only one-half of the advancement.

The general rule is that one who lends money to or makes advances for the benefit of another is entitled to interest on the amount so lent or advanced. 33 T.J.2d, Sec. 15, p. 86.

Since only one-half of the funds used in payment of the lien was advanced for the benefit of the appellant, appellee can only claim interest on funds advanced for his benefit and cannot recover interest on funds paid for her own benefit.

By counter points 6, 7 and 8, appellee complains of that portion of the judgment allowing appellant to recover the sum of $250.00 for the value of services rendered by Wooley in connection with the purchase of the property as found by the jury in Special Issues Nos. 12 and 13.

As pointed out before, appellant’s pleadings consisted of a general denial and a plea of not guilty, without a request for any affirmative relief. Appellee properly objected to the submission of the issues on the grounds that same were not supported by either pleadings or evidence, and now contends that the court was in error in submitting same to the jury and rendering judgment thereon. We sustain this contention. As we view the matter, appellant’s claim for services in connection with the purchase of the property cannot be considered as an equitable claim growing out of the joint tenancy and therefore any claim for such services would require affirmative pleadings in order to support a recovery thereon. Rule 301, T.R.C.P. Even though the claim could be considered as a claim for equitable relief growing out of the co-tenancy, pleadings in support thereof would nevertheless be required. 44 T.J.2d, Sec. 30, p. 275, citing Hawkins v. McCowan, Tex.Civ.App., 246 S.W.2d 322. Moreover, we fail to find any evidence of sufficient probative force to support the jury’s finding.

For the reasons stated herein, that portion of the judgment granting appellee interest in the sum and amount of $411.26 will be reformed so as to grant appellee a recovery for one-half thereof in the amount of $205.-63. That portion of the judgment awarding appellant judgment for the sum of $250.00 for services rendered in connection with the purchase of the property will be reversed and rendered in favor of the ap-pellee, Nora West, and in all other respects the judgment will be affirmed.

Reversed and rendered in part; reformed in part, and as reformed affirmed.

ON MOTION FOR REHEARING

Upon Motion for Rehearing appellee contends that we are in error in reforming the judgment of the trial court upon the question of interest. Upon re-examination of the judgment, it now appears that we were in error in concluding that the judgment allowed appellee a recovery of interest in the amount of $411.26 rather than a reimbursement of such amount from the common fund of the parties on deposit in the Registry of the Court. The effect of the judgment allowing appellee a reimbursement for all of the interest from the common fund is tantamount to ruling that each of them are responsible for interest in the amount of $205.63. Therefore, that portion of our judgment wherein we reformed and granted appellee a recovery for only one-half of the interest is hereby withdrawn and the judgment of the trial court allowing appellee reimbursement in the sum and amount of $411.26 from the common fund on deposit in the Registry of the Court is hereby affirmed.


text:
    TARRANT COUNTY WATER SUPPLY CORPORATION, Appellant, v. HURST-EULESS-BEDFORD INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 16649.
    Court of Civil Appeals of Texas. Fort Worth.
    April 30, 1965.
    Rehearing Denied June 11, 1965.
    Christopher & Bailey and T. S. Christopher, Fort Worth, for appellant.
    Simon, Crowley, Wright, Ratliff & Miller and Wayne A. Rohne, Fort Worth, for ap-pellee.
   MASSEY, Chief Justice.

Whether certain real and personal property enjoys a “tax exempt status” is the basic question. The trial court held that it did not have such status. We affirm.

Tarrant County Water Supply Corporation, hereinafter termed the Corporation, appeared to have the taxable title to the properties in question, although it claimed that such was not true, whether tested legally or factually. The Hurst-Euless-Bedford Independent School District and the City of Hurst brought and prosecuted suit against the Corporation to recover delinquent ad valorem laxes.

The Corporation filed a plea in abatement under its contention that certain municipal corporations named therein were necessary parties to the prosecution of the suit of the taxing authorities, in that said municipalities were jointly the equitable and beneficial owners of all the properties of the Corporation and were in possession thereof; that the title, otherwise taxable, was in the municipalities; and that operations conducted through use of said properties in water distribution and sewer disposal were for public purposes exclusively. The Corporation’s answer asserted the same thing, and further —that in any event it was a political subdivision of the State, exercising delegated powers, and, even though it be held that the Corporation had the title there would likewise exist a “tax exempt status” as applied to the property.

We deem the trial court to have been correct in overruling the plea in abatement, and in rendering judgment that the property in question had not “tax exempt status”, that the corporation held taxable title thereto and was not tax exempt, setting by judgment the tax indebtedness owing, etc.

The amount of tax indebtedness as found by the judgment is not a question on appeal.

Prior to 1960 the water supply services for the cities of North Richland Hills, Richland Hills, Azle, and Lakeside had been supplied by private individuals or companies. The municipalities were experiencing “growing pains”. It was decided that a joint operation relative to the water supply and sewer needs of the municipalities would be a solution to problems arising, with perhaps a decrease in the cost of service.

Under Vernon’s Ann.Tex.Civ.St., Title 32, “Corporations”, Ch. 10, “Public Utilities”, Art. 1434a, “Water supply or sewer service corporations”, a convenient vehicle was afforded to meet their requirements. Under this article a corporation could be formed and chartered by the State of Texas for the purpose of furnishing the water supply and sewer services deemed requisite. A corporation so formed is given the right of eminent domain and also the right to use the rights-of-way of the public highways for the laying of pipe lines. Bonds, notes, and/or warrants issued to secure the funds necessary to the acquisition of property and for operational purposes are prescribed to be secured by a charge upon specifically encumbered properties of the corporation, and not constitute general obligation or indebtedness of the corporation.

Tarrant County Water Supply Corporation was formed for the purpose of solving the problems of the municipalities interested. There has been no specific holding, heretofore, that a corporation organized and operating under authority of Art. 1434a is a political subdivision of this State so that its properties exclusively used for public purposes are exempt from taxation. We hold that it is not a political subdivision. In other statutes under the same title and chapter authority is to be found for organization of corporations for the purposes of furnishing gas, lights, telephone, telegraph, and other services of a public nature. These are not municipal or governmental agencies. Obviously they would not be political subdivisions of the State so that their property used for purely public purposes would be exempt from taxation. Neither would a corporation formed under the provisions of Art. 1434a be a political subdivision.

The Corporation contends that the particular property involved in litigation became property having tax exempt status in view of certain contracts entered into, deeds executed, etc., between it and the various municipalities, plus ordinances enacted by the latter.

Thereby the Corporation secured a 35 year franchise from each of the municipalities to provide water supply and sewer services. Partially in consideration thereof, it entered into an agreement to deed and convey all its property in each municipality to that in which the property was to be found as of the time the bonded indebtedness of the Corporation stood fully paid, upon a further consideration that charges made for the supply of service would be applied to fully pay off the indebtedness applicable to such property and indebtedness.

Likewise covered by the aforesaid instruments was certain other property, including that with which we are concerned in the instant litigation. Such included property, as of the time of the levy of tax assessments thereon, was located wholly outside the boundaries of any of the four municipalities. As applied to the corporate real property, in existence at the time of the agreement, the Corporation executed deeds describing same by metes and bounds, in which the respective grantees were the municipalities. Thereby the property located and owned in each municipality was purportedly conveyed to the municipality in which it was located. We find nothing in the deeds, as of the time any possessory right was provided to be delivered to the respective municipalities, covering property within the boundaries thereof which might be subsequently acquired, though before such delivery. However, provision is therein made relative to property which “lie, or may lie” outside said boundaries at time of delivery.

Quoting excerpts from the instruments of deed concerning such we find in each the following: “For the considerations herein expressed and upon delivery of this deed by the Trustee to Grantee, City, Grantee agrees: * * * (c) That as to real property or interests therein, including all improvements thereon or appurtenances thereto which lie, or which may lie outside of and beyond the municipal limits of any of the involved cities * * * the same shall be, by Grantor corporation, deeded to such of said involved cities and towns as (1) may be agreed upon by said cities and towns based upon the provisions of Sections 7 and 7a of said Franchise Ordinances, or (2), if said cities and towns are unable to agree, then the corporation, Grantor herein, shall cause its regular Engineers to prepare an appraisal and valuation report of the properties * * * which reports and particularly the partition report shall be final and binding on each city and town; and provided further that (3) in connection with the ‘equitable formula* referred to in paragraph 7 of the Franchise Ordinance that if any such properties, as herein referred to, cannot be partitioned in kind that said Engineers partition report may, as to such property as cannot be partitioned in kind, require any city or town to which awarded to pay a portion of the appraised value of any such piece or pieces of property to any other city or town or cities or towns in cash, and such partition report in this respect shall be final and binding.” The instrument closed with a habendum clause.

Within the body of each deed appears the following language: “Upon delivery of this deed by Trustee as required by Section 7.17 of aforesaid Indenture of Mortgage and Deed of Trust, Grantor warrants that said mortgage and deed of trust lien has been fully paid and satisfied * * * and Grantee’s title becomes absolute as to that property herein described with certainty or so described with such certainty as to be made certain.” In said Section 7.17 of the Indenture of Mortgage, so referred to, it is recited, “ ‘Simultaneously with the acceptance of this Indenture the Company (the Corporation) will execute and deliver to the Trustee four deeds, each of which will convey to one of the Cities all of the water and sewer properties of the Company located in the corporate limits of such grantee city subject only to the lien of this Indenture and agreements adopted supplemental hereto as herein provided. Such deeds are to be delivered by the Trustee to the respective Cities upon the payment of the indebtedness incurred in accordance with the terms of the Indenture and any renewals or extensions thereof.’ ” In another section of the Indenture of Mortgage it is made clear that possession of the “mortgaged property” has not been delivered nor is it to be delivered until there has been a complete satisfaction of the provisions of such, the deed instruments, and the franchise ordinances of the several municipalities.

At least as applied to the property with which we are concerned, in so far as it constitutes realty, such may or may not be in existence as of the time there is to be a delivery thereof, and/or deeds made thereto. As of the time of trial there had been no deed thereto made, unless it is covered by the language quoted from the deed instruments. The Corporation has possession. As between the municipalities and the Corporation there is no question but that the Corporation’s obligations relative to conveyance of the property would be unenforceable, if it declined to perform, in view of the requisites of the Statute of Frauds relative to adequacy of property description. Obviously, therefore, there was not a “present transfer” of such property subject to being defeated, no municipality having been placed in possession. There is no doubt that occurrence of the conditions relative to the vesting of title are conditions precedent rather than conditions subsequent or that the municipalities have received what is connotated by the term “estate limited upon a contingency”. Of course one or more of the municipalities may become dissolved before any title ever vests. If there be uncertainty of the persons who are to take title the possibility of receiving the same would be a contingent remainder. If that not be a proper denomination of the title of the municipalities to the property in question, the character of the title as to each would be no more a taxable title than in an instance when it would be a true contingent remainder. Caples v. Ward, 107 Tex. 341, 179 S.W. 856, 858 (1915). What is here stated relative to the real property would likewise have application to the personal property which the trial court held taxable, at least in respect to there having not heretofore been any transfer thereof.

A contingent remainder in property is not a taxable title. Texas Turnpike Company v. Dallas County, 153 Tex. 474, 271 S.W.2d 400, 402 (1954). The title here involved, considered as applied to any right of the municipalities, is not a taxable title for the same reason. In the opinion of the Court of Civil Appeals, which the Supreme Court affirmed (Dallas County v. Texas Turnpike Co., 268 S.W.2d 767, 769), the correct law is stated, as follows: “ * * before property can be held exempt under Art. XI, section 9 of our Constitution, two things must be shown: (1) That the property sought to be exempt must be public property; that is, publicly owned; and (2) that it must be exclusively used for public purposes.”

We have demonstrated, successfully it is hoped, that despite the fact that the property in question might be exclusively used for public purposes it was not publicly owned and therefore was not tax exempt. It was not publicly owned because the taxable title was in the Corporation. The Corporation, not qualifying as a political subdivision of the State, was obliged to pay the taxes thereon.

Although we have not quoted therefrom, we have found persuasive authority for our holding from the two opinions hereinabove cited, Texas Turnpike Company v. Dallas County, and Dallas County v. Texas Turnpike Co.

Judgment is affirmed.


author: DUNAGAN, Chief Justice.

text:
    Lee F. DAVIS, Appellant, v. MORGAN DRIVE AWAY, INC., Appellee.
    No. 142.
    Court of Civil Appeals of Texas. Tyler.
    May 20, 1965.

      Russell L. Dunn, Sherman, for appellant.
    Rayburn Nall, Elliott & Nall, Sherman, for appellee.
   DUNAGAN, Chief Justice.

This was a suit brought by Lee F. Davis against Morgan Drive Away, Inc. in Gray-son County, Texas. The defendant filed its plea of privilege to have the suit transferred to Tarrant County, Texas. By order of May 18, 1964, the court sustained defendant’s plea of privilege. Appellant (plaintiff below) gave .notice of appeal and caused transcript and statement of facts to be filed in the Court of Civil Appeals on the 22nd day of December, 1964.

This cause was set for submission and oral argument in this court on May 13, 1965.

The Clerk of this court gave both parties hereto due notice that the cause had been set for submission and oral argument for Thursday, May 13, 1965.

No briefs have been filed. The cause was submitted on a transcript and statement of facts.

Texas Rules of Civil Procedure 414 provides that an appellant shall file briefs within 30 days after filing transcript. R.C.P. 415 provides that when an appellant fails to file a brief within said time, the court may dismiss the appeal for want of prosecution, unless it is shown good cause for such failure and that appellee has not suffered material injury thereby. Although notified of all the proceedings, appellant has done nothing since filing the transcript and statement of facts.

Appellant has not offered any good cause or excuse for his failure to file his brief within the proper time or made any showing that appellee has not suffered material injury thereby.

Presumptively, at least, appellee has suffered consequential injury in that it has been denied thereby the exercise of its affirmative right to seasonably file a brief in reply to that of appellant. Mayrath v. Mayrath, 335 S.W.2d 873, (Tex.Civ.App.) 1960, no writ history; Hobbs v. Jackson, 313 S.W.2d 348, (Tex.Civ.App.) 1958, no writ history; Maples v. Jackson, 311 S.W.2d 464, (Tex.Civ.App.) 1958, refused, n. r. e.

Since appellant has not filed briefs within the time prescribed and has made no effort to show that good cause has existed for such failure or that appellee has not been injured thereby, the appeal is dismissed at appellant’s cost. Liberty Mut. Ins. Co. v. Thrasher, 190 S.W.2d 596, (Tex.Civ.App.) 1945, writ refused; Willacy County Water Control and Imp. Dist. No. 1 v. Smith, 101 S.W.2d 373, (Tex.Civ.App.) 1937, no writ history; Dixieland Petroleum Corporation v. Brown, 216 S.W.2d 235, (Tex.Civ.App.) 1948, no writ history; Moorman & Singleton v. Simmons, 360 S.W.2d 548, (Tex.Civ.App.) 1962, error refused, Tex., 364 S.W.2d 188.