author: HUGHES, Justice.

text:
    STATE BANKING BOARD and Northline State Bank, Appellants, v. AIRLINE NATIONAL BANK, Appellee.
    No. 11365.
    Court of Civil Appeals of Texas. Austin.
    Jan. 26, 1966.
    Rehearing Denied Feb. 16, 1966.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B„ Wright, Executive Asst. Atty. Gen., Paul W. Phy, John W. Fainter, Jr., Asst. Attys. Gen., Austin, Vinson, Elkins, Weems & Searls, Ben H. Rice, III, Ewing Werlein, Jr., Houston, Heath & Davis, Dudley D. McCalla, Austin, for appellants.
    Joe R. Long, Brown, Sparks & Erwin, Frank C. Erwin, Jr., Austin, for appellee.
   HUGHES, Justice.

The State Banking Board whose members are J. M. Falkner, Jesse James and Robert S. Strauss on November 25, 1964, granted a bank charter to the Northline State Bank of Houston, Texas, hereinafter called Northline. On December 3, 1964, the Airline National Bank of Houston, Texas, hereinafter called Airline, filed suit in the court below as an appeal from the order granting the bank charter to Northline. Only the State Banking Board and its members were made parties, however Northline intervened.

After a non-jury trial, the court made findings of fact and conclusions of law upon which judgment was rendered declaring null and void the charter issued by the Board to Northline.

The authority of the Board to issue charters for State banks is found in Art. 342-305, Vernon’s Ann.Tex.Civ.St., which provides in part:

“In considering any such application, the State Banking Board shall, after hearing, determine whether or not:
1. A public necessity exists for the proposed bank.
2. The proposed capital structure is adequate.
3. The volume of business in the community where such proposed bank is to be established is such as to indicate profitable operation of the proposed bank.
4. The proposed officers and directors have sufficient banking' experience, ability and standing to render success of the proposed bank probable.
5. The applicants are acting in good faith.
Should the State Banking Board determine any of the above issues adversely to the applicants, it shall reject the application. Otherwise such Board shall approve the application and the Commissioner shall, when the capital has been paid in cash, deliver to the incorporators a certified copy of the articles of association, and the bank shall come into corporate existence. Provided, however, that the State Banking Board may make its approval of any application conditional, and in such event shall set out such condition in the resolution granting the charter, and the Commissioner shall not deliver the certified copy of the ar-tides of association until such condition has been met, after which the Commissioner shall in writing inform the State Banking Board as to compliance with such condition and delivery of the articles of association.”

The Board made affirmative findings on each of these statutory requirements but it conditioned its approval of the application of Northline on an increase of $100,-000.00 in the capital and surplus of the proposed bank.

Airline in its petition filed below alleged that each of the affirmative findings made by the Board was not reasonably supported by substantial evidence. Airline, however, has abandoned its attack on three of these findings and, in this Court, disputes only the finding that a public necessity exists for the proposed bank and the finding that the proposed officers and directors have sufficient banking experience, ability and standing to render success of the proposed bank probable.

We will first discuss and determine- the question presented regarding the proposed officers of Northline. The facts bearing on this question are these.

In the application for a charter for Northline it was stated:

“The proposed officers selected are: Executive officers to be named prior to opening, subject to approval of Banking Board. * * ⅜ President W. S. Elkins ⅜ * * Mr. W. S. Elkins, a life long resident of Houston and Senior Partner in the law firm of Vinson, Elkins, Weems and Searls, will serve as President, inactive, of the proposed bank. Mr. Elkins has been most active in business and civic affairs in Houston and is a member of the board of directors of five banks in the Houston area as listed below under the section dealing with directors.

Selection of an Executive Vice President, who will be the chief executive officer, and a Cashier have not been completed at this time. Assurance is given, however, that a fully competent management staff acceptable to the Banking Board and subject to its approval, will be named prior to opening for business. * * *

Mr. Elkins is a Senior Partner in Vinson, Elkins, Weems and Searls, one of Houston’s oldest and largest law firms. He is an advisory director of the First City National Bank of Houston, and director of The Harrisburg Bank and Gulf gate State Bank of Houston, the LaPorte State Bank, and First State Bank of Clear Lake City.”

The following testimony was given by Mr. John G. Heard, an attorney and director of Northline:

“Q (By Mr. Rice) Was there any statement made by a representative of the Airline Bank at the hearing with respect to the question of the management of the proposed Northline Bank?
A Yes, sir, there was such a statement.
Q Can you state for us, in substance or in exact words, if you can, what the statement was ?
A There was such a statement, Mr. Rice, and as a matter of fact, the opponents to our charter admitted, through Mr. Jacobsen, that there was no question but what this group represented by the directors were responsible banking people and could provide necessary management, and I think almost his precise words were that there was no question but what this group could provide adequate banking management.”

It is undisputed that the names of all the proposed officers of Northline were not submitted to the Board or any of its members prior to the hearing on the application for Northline or prior to entry of the order granting its application.

It is also undisputed that the order or resolution granting the application of Northline was not, in so many words, conditioned on the Board’s approval of the proposed officers of the bank.

Since granting the application of Northline an organizational meeting was held by its stockholders and in addition to Mr. Elkins being named President, Mr. W. J. Keitt was named Vice President and Mr. Bernard S. Beaman, Jr. was named Cashier. These are the only officers a bank is required to have. Art. 342-409, V.A.T.S.

We do not understand Airline to question the qualifications of either Mr. Keitt or Mr. Beaman, Jr., but it does question the qualification of Mr. Elkins.

Mr. Elkins is an attorney, a member of a large Houston law firm. For twenty-five years he has devoted most of his time to banking matters for this firm. While he has never been an officer of a bank he has been a director and advisor of the First City National Bank of Houston since 1956, and has been a director of numerous other banks. Mr. Elkins did not intend to do the day to day work of the bank but he did intend to do all that was required of him by law as President of Northline.

We hold, with the trial court, that the qualifications of Mr. Elkins as an officer of Northline are established not only by substantial evidence, but by undisputed evidence.

The fact that the other two officers were not named until after approval of the application for a charter is said to be fatal to the validity of the charter.

While neither Airline nor the Board could waive the statutory requirements regarding the selection and Board approval of officers of a bank, the Board, as well as Northline, by the statement attributed to Mr. Jacobsen, were justified in believing that the immediate appointment and Board approval of qualified officers was not a matter of present importance and was not a point of Airline’s opposition to the issuance of a charter to Northline. Under these circumstances, we believe that the Board was not mandatorily required to approve the selection and qualifications of officers of the bank before approval of the charter but that it could rely upon its authority in this respect given to it by Art. 342-307, V.A.C.S. This Article, a part of the banking code and to be construed with all of its provisions, including Art. 342-305, supra, provides, in part:

“No state bank may do business until it receives a certificate of authority from the Commissioner, which shall not be delivered until it has elected the officers and directors named in the application for charter or other officers and directors approved by the Commissioner; shall have adopted bylaws approved by the Commissioner; and shall have complied with all the other requirements of this Code relative to the incorporation of state banks.”

This Article clearly contemplates a situation comparable to the one before us. If officers named in an application are not elected or if elected cannot or will not serve or if, as here, all the officers are not named in an application, then the statute provides an alternative. Willing officers and directors may be elected and when approved by the Commissioner, and not before, a certificate of authority to do business may be issued by the Commissioner to the new bank.

This construction of these statutes comports with ordinary corporate procedures and with the State Banking Code. Stockholders elect the directors who in turn elect officers. Arts. 342-404 through 342-409. There are no stockholders, directors or officers of a corporation until after the corporation is brought into being.

We are further of the opinion that the application of Northline expressed the condition that competent management would be named prior to the opening of the Bank for business and that the approval of this application by the Board had the legal effect of writing this condition into the charter as authorized by Art. 342-305, supra.

We turn now to the question of substantial evidence to support the finding of the Board that a public necessity exists for the creation of the Northline Bank. The wealth of material in the record on this phase of the case is staggering. We will do our utmost to condense it within reasonable limits and still perform our duty to consider the entire record in order to determine if this finding is reasonably supported by substantial evidence.

Northline was to be located in the City of Houston about five miles north of the central business district of Houston, at the southwest corner of an 80 acre tract occupied by Northline Shopping City, and on the North Freeway (Interstate 45, the Houston-Dallas Highway) at the Cross-timbers Road intersection.

Northline Shopping City is the only major regional shopping center in Harris County north of Buffalo Bayou and it is the largest such center in Houston. There is no bank in or on the premises of this Northline Center and there is no Houston bank on Interstate 45.

Northline Shopping City was planned and the 80-acre site was acquired in 1955, before construction of the North Freeway. Northline City opened in 1963. Its trade area encompasses all of Houston and Harris County north of Buffalo Bayou and the West Freeway (Katy Road). Its patrons were estimated at 60,000 per week. More than 1,200 persons0 are employed at Northline City.

The people who shop at Northline City come from a wide area. A survey indicates that of these shoppers one-fourth would probably use a new bank located where Northline intends to locate.

This survey was made by Dr. Richard B. Johnson, Chairman of the Department of Economics at Southern Methodist University and director of the Southwestern Graduate School of Banking, and a witness for Airline. Dr. Johnson testified that a suburban bank’s market territory is from one to two miles from the bank. He stated that a suburban bank, as distinguished from a downtown bank, is dependent upon its neighborhood and that its lending operations were largely in the installment credit field, and that its revenues depended, to a considerable degree, upon its service charges, and rendering service functions to individual depositors.

Dr. Johnson testified that in the area nearest the Northline Bank location about 41% of the residents indicated that they would probably use the new bank, with about 36% undecided.

Airline is the nearest bank to the North-line location. It is on Airline Drive, about one mile north of the Northline site. It has been in business, as a State and National Bank, since 1958. This date was before the North Freeway was completed and before construction of Northline Shopping City was commenced. After five months operation, Airline’s deposits exceeded two million dollars. Its deposits have continued to grow as reflected by the following table:

“Year Deposits
1960 $ 4,619,499
1961 6,165,962
1962 7,420,332
1963 8,895,641
1964 • 10,870,568
1965 (April 26) 11,500,000”

Airline’s deposits have increased 135% over the four year span 1960-1964.

In 1959, Airline made a profit of $41,000.00. It has made a profit each year of its operation; the profit in 1964 being $96,000.00, after taxes.

Airline has about 15,000 customers. Its president, Mr. W. S. Pebworth, Jr., is well satisfied with the bank’s achievements.

The Republic National Bank which opened in 1963 and appears to be the nearest new bank to Airline, has not prevented Airline’s growth.

In 1943, Heights State Bank was the only bank located north of Buffalo Bayou in the City of Houston. Now there are many banks located in North Houston. All of these banks in North Houston have a history of steady and continuous growth.

The growth of deposits of the 10 North Houston banks closest to the proposed Northline State Bank since 1960 is shown by the following:

Bank December 31, 1960 October 1, 1964
Airline National $ 4,619,470.00 $ 10,094,088.00
Commercial State 9,010,668.00 12,119,943.00
Fairbanks State 1,449,493.00 3,440,875.00
Heights State 19,126,208.00 25,242,425.00
Northeast National 3,099,817.00 5,910,013.00
North Side State 15,460,387.00 27,493,947.00
Oak Forest State 7,653,830.00 11,693,412.00
Pinemont State 1,669,805.00 4,535,637.00
Port City State 10,265,475.00 14,065,237.00
Reagan State 19,507,514.00 29,470,648.00
TOTAL $91,862,667.00 $144,066,225.00

As is evident from these figures, Airline’s percentage of deposit growth during this period has far exceeded the total percentage deposit growth of all North Houston banks, Airline’s percentage being 118.5 and the percentage of the nine other North Houston banks being 53.6. The percentage deposit growth of all banks in Houston during this four year period was only 29.4.

There are many statistics in the record to demonstrate the healthy condition of banking in Houston, and its steady growth. Bank deposits in Harris County have increased from $2,510,860,000 in 1960 to $3,350,651,000 in 1964. Houston Clearing House figures for bank debits to individual accounts show that such debits have shown a steady annual increase during the same period, being $28,065,050,378 in 1960 and increasing to $39,342,970,798 in 1964.

Also it is shown that the clearings of all members of the Houston Clearing House increased from $23,323,677,231 in 1961 to $30,172,037,853 in 1964.

There is no evidence that the opening of Northline would jeopardize the solvency of any existing bank in Harris County, although there is evidence that Airline was concerned that its profits would suffer.

Airline devotes 31 pages of its brief to a summary of the evidence with respect to showing a lack of necessity for Northline. This is a remarkable condensation of this huge record. We will make such further condensation as is consistent with completeness.

Northline in its application stated that it proposed to serve a primary trade area approximately 12 square miles in the north central portion of metropolitan Houston.

This trade area has a median annual income of $5,709.00 as compared to $5,-900.00 for the entire City of Houston.

In 1960, this area had two banks. With the chartering of Northline it will have four banks. The number of households in the area per bank in 1960 was 7,104. With four banks the number of households per bank will be 4,236.

The electrical connections and building permits in this area for the period 1960— 1964 show that the growth in households was between 2,369 and 2,734. The increase in households per bank during this period was 1,368.

In 1964, the estimated income per bank in this trade area was $24,180,470 which is less than the estimated income per bank in other areas in Harris County.

Northline’s witness Mr. H. F. Finley, a Houston Realtor, testified as to the value of housing in several subdivisions located in this area. His estimates of the value of housing within the area were from $6,000 to $10,500 with most of the estimates running from $7,000 to $9,500. Airline’s witness Mr. P. A. Smith, Sr., a building developer, characterized many of the neighborhoods as “older neighborhoods” with the housing valued from $5,000 to $9,000. In many of the areas out toward the city limits (along Little York Road) a purchaser cannot get FHA or GI loans because there is no city sewerage. Mr. Lawrence O’Donnell, another builder, testified that the north part of Houston was a “poor man’s” area. He noted that low priced new homes for $11,350 were priced for that amount because they were for the working man with low income. He estimated the average monthly income at $400 per month. Mr. William Woodward, president of Reagan State Bank for the past nine years, testified that in 1962 his bank conducted a survey which reflected that the primary trade area of Reagan State Bank, a good portion of which falls within an enlarged area surrounding Northline, had a median income of $3,941. He described the residences in the Reagan area as “old and deteriorating to some extent.” He estimated the value of the homes within a two-mile arc of Airline Bank as between $5,000 and $7,000 with a few going as high as $12,000 or $14,000.

Mr. Jerry Finger, president of Republic National Bank, the newest bank chartered in this enlarged area, characterized much of the area included as composed of persons in the middle to lower-middle and in some low-income groups. He indicated there was not a great deal of money in the area and that the demand accounts of the area typically had relatively low balances. Mr. Pebworth, president of Airline, corroborated this testimony indicating that average individual accounts in his bank would have a balance of $300. He testified that the commercial activity in the area consisted of retail stores and shops which were quite small.

Mr. O. S. Sinderson, a restaurant owner in the vicinity of Little York Road and Airline Drive, testified that he was well acquainted with the businesses between his restaurant and Airline Bank located some two miles South on Airline Drive. He described the businesses as small filling stations, drive-in groceries, hardware stores, etc., operated primarily by husband and wife or father and son.

Airline’s witness Dr. Johnson divided the suburban area of Houston into three major sectors and statistics were developed with regard to each sector. In Sector I, north Houston and the trade area designated by Northline, had, as previously stated, a median family annual income of $5,129 in 1960. In Sector II, east Houston, this income was $6,932; in Sector III, west Houston, this income was $9,149.

From 1961-1964, the record shows that in Sector I there were 5,341 new residences; for Sector II 14,495; for Sector III 26,294. During this period five new banks were chartered for Sector I, three for Sector II, and six new banks for Sector III.

Airline has another exhibit which divides suburban Houston into six areas. The substance of this exhibit is stated by Airline to be, “If one takes the northern half of Houston, as illustrated by areas 1, 2 and 6 * * * one sees that the three areas together account for only 38 per cent of the total deposit growth enjoyed by all suburban banks in Houston for the period 1959 to 1964, whereas the southern three areas account for 62 per cent of such growth.”

Dr. Richard B. Johnson, previously mentioned, is an eminently qualified economist. He testified at some length for Airline. Some of the data and exhibits used and prepared by Dr. Johnson have been referred to above. We quote the following from Airline’s summary of the testimony of Dr. Johnson:

“In this case Dr. Johnson did three important things. He analyzed the nature of the market of Airline National Bank, analyzed and compared various aspects of the suburban bank market as they exist in Houston, and rendered his expert opinion concerning the probable extent of the market of a bank located in the Northline Shopping Center, the lack of necessity for such bank and the probable effect and consequences of chartering such a bank.
Airline’s Exhibit 5 is a map of Houston with the postal zones indicated on it. Also affixed to the exhibit are tabs indicating the approximate location of the various suburban banks in Houston. Circles are drawn in one and two mile radii around the banks most closely located to the proposed location of Northline Bank. These circles demonstrate well the closeness in location of the existing banks and the interlocking nature of the trade territory and market areas of the existing banks. In determining the nature of the Airline Market, Dr. Johnson did an analysis by postal zones of the 8,292 individual demand deposit accounts in the Airline National Bank.
Of a total of 8,292 individual demand deposits in Airline National Bank, 3,617 were in Zone 22, 43.6 per cent of all individual demand deposits by number and 43 per cent of the amount in dollars. Zone 9 has 18 per cent of the number of accounts and 22 per cent of the dollar amount of individual demand deposits; Zones 22 and 9 together have 61 per cent of the total number of accounts and 65 per cent of the dollar volume which Airline National has. Zone 22 generates 29 per cent of the number of commercial accounts which account for 19 per cent of the dollar volume of such accounts. Zone 9 generates 18 per cent of the number and 22 per cent of the dollar amount of commercial accounts. Fifty-six per cent of the number and 41 per cent of the dollar volume of all commercial accounts was derived from Zones 22 and 9. Sixty-five per cent by number and 52 per cent by amount came from Zones 22, 9 and 16. Other zones are relatively unimportant.
Postal Zones 37, 38 and 39 all lie north beyond a two-mile radius of Airline National Bank. Airline derives something less than fifteen per cent of the total number of individual demand deposits and considerably less than fifteen per cent of the dollar amounts of commercial deposits and individual demand deposits from those three postal zones.
In summary Dr. Johnson testified that between 50 and 60 per cent of the deposit volume of the Airline National Bank is derived from Postal Zones 22 and 9, and that Zone 22 is the principal component of the primary market and lies within the two-mile radius of the Airline National Bank. The outlying sectors, north, south, west, produce less than ten per cent each of the deposit volume of the bank.
Dr. Johnson testified that in his opinion if a bank were located at the proposed location of the Northline State Bank the primary market of the Northline State Bank would be parts of Postal Zones 22, 9, 8, 18, 16 and 26, but principally 22 and 9. The attention of the court is called to the fact that with the exception of Zone 8, these are the identical postal zones which contain 80 per cent of the charge account business of Joske’s. In his opinion the Airline National Bank over a period of years would share approximately equally its primary market, Zones 22 and 9, with the proposed Northline State Bank. He noted that they are both on the same side of Interstate 45 and Northline State Bank is more nearly in the exact middle of the combined zones, 22 and 9, than is Airline National. In his opinion, a bank located at the proposed location of Northline State Bank could not derive a significant portion of its deposits from beyond a two-mile radius from the bank. Dr. Johnson did not see any indications that there would be a significant growth in households or income within the radius of two miles of the proposed location of Northline Bank during the next five or even ten years. In this connection he indicated that the increase in households in this general territory had been very modest during the past five years although during the same period there had been very marked growth in households in most of the other suburban areas.
With regard to public necessity, Dr. Johnson said:
‘Well, in my opinion, Sir, there is no need and no necessity for the bank. (Northline) You will observe that the territory is well covered at present by commercial banks readily accessible to all parts of the market. The Airline National is specifically well situated to serve much of the very territory that the Northline State must serve and readily accessible and with a good sized building and adequate parking to do so. The Republic National Bank, a new bank, new building-, new service functions, developed specifically to serve the territory to the northwest which must constitute part of the Northline State Bank, and similarly banks in all the other sectors readily available to the residents and employees of the area. Now undoubtedly Northline State Bank would serve the convenience of the retail stores and other establishments in Northline Shopping Center, and other residents and commercial operations in the general territory, but it does not, in my judgment meet the standards of need and necessity.’ ”

Mr. E. H. Henderson, a qualified banking expert, testified, in substance, that he had moved a bank, of which he was President, from a shopping center because some of the bank’s customers had complained there was not ready access to the bank; that he had been approached to help in forming a new bank in the Northline Shopping Center but he refused because he did not feel that there was a necessity for such bank or that it would generate a sufficient volume of business at that location to be profitable. He also testified that he knew that eighteen months prior to the trial of this case an effort to obtain a national bank at this location had failed. Mr. Henderson was of the opinion that a bank at this location would have to be subsidized by deposits and loans from other correspondent sources or banks, this for the reason that his bank, located 2.2 miles northwest of the proposed Northline Bank, had been able to place only about one half of its loans within a two mile radius of his bank.

Mr. William Woodward, President of the Reagan State Bank, testified that in his opinion there is no justification or necessity for a bank at Northline Center, saying that in his judgment there were presently too many banks in Houston and that North-line would be located in an area very near other new banks which are having difficulty making a go of it. He did not believe that chartering Northline would hurt his bank but in answering the question, “Is it going to hurt Houston?” he replied, “Yes, sir, one bank failure could tear us all up.” Mr. Woodward also expressed doubt that Northline could operate profitably and his opinion was that it could not generate enough loans in its vicinity to justify its existence.

Mr. Jerry Finger, President and chief executive officer of the Republic National Bank, located about two miles from the proposed Northline Bank, testified extensively to the efforts made by his bank to obtain deposits and make loans saying that it spent about $1800.00 per month in promoting and advertising these endeavors.

Mr. Finger testified that only 35 per cent of his bank’s demand deposits came from the primary trade area of the bank and that further enhancement of this per-centum was unlikely because (1) there is not a great deal of money in the area. (2) there were many chain stores in the area and they merely use the local bank to transfer money to downtown banks (3) the residents of the area in the middle to low income class and (4) there simply was not a great volume of demand deposits to be derived from this area.

Mr. Finger stated that when the North-line charter was issued, his bank was not showing a profit “on an accrual method of accounting, which I think is the true method of bank accounting.” The bank did, however, show a profit for the month of November 1964. The operation of the Northline Bank would, said Mr. Finger, “ * * * result in an immediate dissipation of our present bank deposits.”

Mr. Lee R. Allredge, a vice president of Joske’s Department Store, testified that if Northline Bank opened Joske’s would transfer its account with Republic National Bank, $123,000.00 in the fall of 1964, to the Northline Bank.

Mr. W. S. Pebworth, President of Airline, testified to efforts to obtain a location for his bank when it was organized on the property later developed by the North-line Center. These efforts were not successful; also, the organizers of Airline were apprehensive that the Northline Center would not be built.

In Mr. Pebworth’s opinion there was no public necessity as of November 25, 1964, for the chartering of a bank at the proposed location of the Northline State Bank because in his experience as a banker in the area for the past seven years there is not a sufficient volume of business in the general trade area of the bank such as would reasonably indicate a profitable operation for an additional bank located in the area. In his experience with Airline there are not sufficient lending opportunities in the area to put to full use the deposits which are generated in the area.

Mr. Harold A. Clark, a developer of shopping centers in Houston and a director of the Homestead State Bank, testified the Northtown Plaza Shopping Center which he developed did not need a bank because it was only five minutes away from Airline and the Republic National Bank; also that the Longpoint Shopping Center, the Ridgecrest Shopping Center and the Spring Village Shopping Centers did not have banks.

Mr. Clark also testified that the Homestead Bank had not shown a profit as of November 1964, it having then been opened for 17 months.

Mr. John M. Burns, manager of Montgomery Ward Store in Northline Shopping City and a director of Airline, testified that neither he nor Montgomery Ward had an account with Airline, and that if the North-line Bank was opened, Montgomery Ward would not use it; also, that Ward’s has a store in Palm Center Shopping Center which has no bank. Mr. Burns did not believe that a bank placed in Northline Shopping Center would increase the business of the Ward Store. He was of the opinion that Airline was as convenient for Ward’s customers as the Northline Bank would be even though the distance might be greater [the difference between 4 or 5 blocks (Airline) and 1500-2000 feet (Northline)] he thought people would drive to the bank rather than walk.

Mr. Lawrence O’Donnell, a builder and developer in North Houston and a director of Airline, testified that builders were not building close to the Northline Shopping Center but were going further away from the center with their building development.

Mr. O. B. Faber, a customer of Airline, testified that it takes him about 15 minutes to go from his grocery store at 4220 Airline Drive to the bank and make a deposit using the drive-in window, and five minutes more if he goes in the bank.

Mr. O. S. Sinderson, a customer of Airline, testified that it takes him 15 or 20 minutes to go from his restaurant in the 8000 block of Airline Drive to the bank and make a deposit and return; also, that he was well acquainted with the merchants along Airline Drive and that a majority of them use the Airline National Bank, and that he has heard none of them express dissatisfaction with the bank.

Reverend Frank Park, pastor of the Rittenhouse Baptist Church, testified that he did not find it inconvenient to go from his church, located two and one half miles from Northline Shopping Center to the Airline Bank, and that he has not heard of any dissatisfaction among his church members with banking facilities in the area.

It is our opinion that this record presents a factual situation in which the discretion vested by the Legislature in the Banking Board is to be exercised in accordance with its sound judgment after appraising all the evidence in the light of the Board’s special qualifications in this field. It is our opinion that under this record the Board could not have entered an order that would have been an abuse of its discretion. There is an abundance of evidence of a substantial nature which would have reasonably supported an order denying a charter to Northline as well as reasonably supporting the order entered. It is in such situations that the expertise of the Board is employed with conclusive effect.

In Chimney Rock National Bank of Houston v. State Banking Board, 376 S.W.2d 595, n. w. h., this Court, Associate Justice Phillips writing, made the first judicial construction by our Courts of the phrase “public necessity” found in Art. 342-305, using this language:

“In Moran v. Nelson, 322 Mich. 230, 33 N.W.2d 772, the Supreme Court of Michigan reversed the Banking Commission of that State and ordered the charter granted under a banking statute that required the Commission to be satisfied as to the necessity for such bank and the likelihood of its successful operation.
The court in the Moran case said that any one, exact definition of necessity would be futile. That necessity does not mean an ‘absolute need’ or ‘economic need.’ New banks provide additional banking capital for the community which results in greater diversity of competitive banking facilities. That necessity does not mean that existing banks are not meeting the present banking necessities. Such a restriction would not be conducive to healthy banking conditions. In this connection, the court quoted from the Minnesota Supreme Court in State ex rel. Dybdal v. State Securities Commission, 145 Minn. 221, 176 N.W. 759:
‘It (the governing statute) does not intend that one or more established banks may keep out another because the banking facilities sufficiently take care of the banking business. Its purpose is not to deter competition or foster monopoly, but to guard the public and public interest against imprudent banking.’
The court in the Moran case held that ‘mere convenience’ was not enough to satisfy the statutory requirement but when supplemented by proof of facts and circumstances which are persuasive of necessity, it is proper to take into consideration testimony as to the element of convenience.
The Michigan Court found the proposed new bank to be necessary even though it was to be located in close proximity to strong and long-established banks in downtown Detroit and even though such banks were rendering a complete banking service. The court pointed out the rapid growth of the population in Detroit and the substantial growth of all of the banks in the Detroit area during the past few years. The court also referred to this evidence to show probable successful operation of the proposed new bank stating that the facts and circumstances bearing upon necessity also bear, to some extent, upon successful operation.
We approve the holding in the Moran case and the reasoning quoted above. The requirements of the Michigan statute concerning necessity and probable successful operation are substantially the same as the requirements in Art. 342-305 V.C.S.
* * * * * *
Evidence presented by appellants as to the harm a new bank would cause those nearby banks already in existence showed no greater harm than any newly competing business will naturally inflict upon its neighbors in a similar enterprise. This evidence did not show any possible harm of such a nature as to endanger existence of the nearby banks. On the contrary, the evidence shows that the banks now in existence are in a healthy financial condition and are expanding. This evidence adds up to the fact that there will be nothing more than greater competition in the area. That this could have a beneficial effect of bringing new capital into the area for further expansion and for greater diversity in competitive banking facilities. These are positive factors to be considered in attempting to define necessity under the statute.
As stated in the Moran case, above, it is very difficult to differentiate between the proof required to show necessity for a bank and that required to show the volume of business in the community where such proposed bank is to be established is such as to indicate profitable operation of the proposed bank. Certainly much of the evidence applicable to the former is equally applicable to the latter.
⅝ ⅛ i\< ⅜ ⅝
Under the facts of this case we hold that the mere sufficiency of existing banking facilities, in the sense of some facilities more or less appropriately located in area and furnishing the usual gamut of services, is not in and of itself sufficient basis to deny establishment of the proposed bank where the general economy of the area and its reasonable potential are such that there is room for further installation without causing excessive competition with real harm to any nearby banks now existing or unduly affecting banking structure at large.”

We apply this construction of the words “public necessity” to this record and when we do we find that the action of the Board in granting Northline a charter to open a bank in Northline Shopping City is sustained by evidence showing a “public necessity” for such bank. That the broad interpretation given to the words “public necessity,” by us is correct is, we believe, augmented by these considerations.

Our Constitution, Sec. 16, Art. 16, Vernon’s Ann.St., provides, in part, that, “The Legislature shall by general laws, authorize the incorporation of corporate bodies with banking and discounting privileges, and shall provide for a system of State supervision, regulation and control of such bodies which will adequately protect and secure the depositors and creditors thereof.”

Art. 342-301, V.T.C.S., provides, in part, that, “Subject to the provisions of this Code, five (5) or more persons, a majority of whom are residents of this state, may incorporate a state bank, * *

Art. 342-305, copied, in part, supra, requires an application for a bank charter to be made to the State Banking Board and requires the Board to approve such charter unless negative answer is made to some of the requirements of such Article.

There is nothing in either the Constitution or Banking Code of this State imposing, expressly or by implication, a condition that new banks not be organized or located in communities receiving banking service for existing banks. Such a restriction would be monopolistic in nature and would conflict with the express provision of our Constitution condemning monopolies. Art. 1, Sec. 26, Tex.Const.

The dominant purpose of our banking laws is the protection and security of a bank’s depositors and creditors as is manifest from the Constitutional provision above quoted. This purpose is served here by substantial evidence reasonably supporting the findings of the Board, and not upset by the Trial Judge, that the volume of business in the community where Northline is to be established is such as to indicate profitable operation of the bank, and that the applicants for the bank charter are acting in good faith. Also, there is substantial evidence to the effect that the opening of Northline will not result in the closing of any existing banks or in their failure to operate at a profit.

The evidence here demonstrates the steady and continuous growth of the deposits and capital of Airline, of the ten North Houston banks nearest to Northline and of banks in Houston, generally.

When we consider that Northline City Center where Northline Bank is to be located has 45 stores patronized by thousands of people daily (60,000 per week) and the new highways in North Houston and steady growth of North Houston all as reflected by this record, we find substantial evidence reasonably supporting the finding of the Board that there is a public necessity for the Northline Bank. Public necessity in this instance is found in the need for additional banking facilities and capacity available to the public on a more competitive basis. As stated by us in Chimney Rock, “These are positive factors to be considered in attempting to define necessity under the statute. ”

We are of the opinion that the Board was within the limits of its discretionary power in determining, from the evidence of the growth of Airline and all other banks in the community, that the public’s requirements for banking facilities and capacity on a more competitive basis had increased and that there was a public necessity to increase such facilities and capacity, which public necessity would be served by granting a charter to Northline.

We are much impressed by an article in 71 Yale Law Review 502 (1962) entitled “Banking Competition” from which we quote the following:

“Decisions by bank regulatory agencies whether a new bank should be chartered, a new branch established, or an existing bank acquired by a holding company * * * may have in common the question of whether more or fewer banking alternatives are desirable * * *. Competition can function only if bank-users — primarily borrowers and depositors — may choose among a number of banking institutions, and if this choice is based upon which institution makes the most attractive offer. * * * Since each bank must vie with other banks in satisfying borrowers through such advantages as low interest rates, and depositors through such advantages as high interest rates on time deposits or low service charges on demand deposits, the banking system will efficiently allocate depositors’ funds to borrowers’ needs.
If the number of alternatives is substantially reduced, however, bank-users’ choices may not force efficient bank behavior. * * * Moreover, such a reduction in banking alternatives may reduce credit availability to marginal risk borrowers. Since risk appraisal is a highly subjective exercise, banks are likely to differ reasonably as to the credit worthiness of a borrower. Thus, a borrower who would qualify under some methods of risk appraisal, but not under others, has less opportunity to obtain credit the fewer the available alternatives. Because new businesses and expanding small businesses are generally marginal risk borrowers, decreased credit availability may affect the competitiveness and growth of the rest of the economy. Apart from unintentional differences in credit appraisal, decreased alternatives may increase the probability of credit discrimination. Two banks, for example, which finance all the shoe retailers in their area may refuse to grant credit even to a low-risk borrower planning to open another shoe store.
⅝ ⅜ ⅝ ⅝ ⅝ ⅜
Neither the nature of banks and the money market nor banking regulation to control solvency and money creation offer any strong reasons that the industry should not provide bank-users enough alternatives so that their choice will effectively induce efficient bank operation and resource allocation.”

We believe that sound and efficient banking is promoted and that public interest is served by fair competition between banks, and that public necessity exists to bring this about.

We reverse the judgment of the trial court and render judgment that Airline take nothing by its suit.

Reversed and rendered.

      . This case was triable under the substantial evidence rule. Chemical Bank & Trust Company v. Falkner, 369 S.W.2d 427, Tex. Supreme Court.

      . Airline concedes that the proposed directors are qualified.

      . It is to be noted that Airline in its application for a state charter named only one officer.

      . This figure is shown elsewhere in the record as $5,129.00.


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    Mike SCOZZARI, Appellant, v. Annie Scozzari CURTIS, Appellee.
    No. 16696.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 21, 1966.
    Clyde, Hines & Craig, and Marshall A. Hines, Fort Worth, for appellant.
    Pringle & Finney, and David R. Finney, Fort Worth, for appellee.
   LANGDON, Justice.

This is a suit for change of custody-brought by Mike Scozzari, appellant, against Annie Scozzari Curtis. They were formerly husband and wife until divorced on April 17, 1964, at which time the custody of their only child, Cynthia Scozzari, a girl born July 5, 1962, was awarded to Annie Scozzari. The divorce judgment required Mike Scozzari to pay Ten Dollars ($10.00) per week child support and provided him visitation privileges on Sunday of each week. Prior to trial of this suit for change of custody filed on January 13, 1965, the appellant paid up his child support arrears. Both appellant and his former wife have remarried since the divorce. Trial was to the court without a jury. Judgment was entered awarding the care, custody and control of the child to Mr. and Mrs. Leonard W. Moore, the maternal grandparents who were not parties to the suit.

By eight points of error the appellant contends that the court’s findings and its judgment are not supported by the law, the evidence or the pleadings, and that in order to have custody, Mr. and Mrs. Leonard W. Moore had the burden of proving that the appellant was an unfit person for custody, which they failed to do.

Mr. and Mrs. Leonard Moore were never made parties to this cause of action nor did they intervene. They were both present at the trial. Each of them testified and responded to questions propounded by the court and the attorneys. The court being fully advised as to their qualifications and of their willingness to continue to assume and to discharge the duties and responsibilities attendant to an award of custody had authority to award such custody to them. Haynes v. Haynes, 191 S.W.2d 81 (Texas Civ.App.1945, Dism.); Reid v. Horton, 278 S.W.2d 626 (Amarillo Civ.App., 1954, ref. n. r. e.) ; 20 Tex.Jur. 2d 660, § 331.

It has been held, “that pleadings are of little importance in child custody cases and the trial court’s efforts to exercise broad, equitable powers in determining what will be best for the future welfare of a child should be unhampered by narrow, technical rulings. Ross v. Orr, Tex.Civ.App., 214 S.W.2d 150.” Reid v. Horton, supra. Since the question as to whether they should have been made parties has not been raised by either party to this appeal, it will not be considered further in this opinion except to say that they were named in the appeal bond and counsel appeared for argument in their behalf. Reid v. Horton, supra. Annie Scozzari Curtis does not complain of the judgment.

At the request of appellant the court, made and duly filed findings of fact and conclusions of law which reflect that: the child has been in the home of Mr. and Mrs. Leonard W. Moore, her maternal grandparents since she was ten or eleven months old except for short periods of time spent with one or both of her parents; prior to their divorce both parents voluntarily left the physical custody of the child with Mr. and Mrs. Moore and she was residing with them at the time of the divorce. After the divorce Annie Scozzari voluntarily relinquished care and custody of the child to the Moores and lived apart from them; Mr. and Mrs. Moore are in good health. Their home is in all things suitable for the care of the child who is happy and well cared for. The Moores are financially able to provide for her physical and medical needs and have loved and cared for her for more than two years of her life. The Moores are fit and proper persons to have the care and custody of said child.

At the time of trial the appellant was approximately 23 years of age, had been remarried about 4 months, and resided in a rented upstairs apartment. His take home pay was $50.00 per week. He was not financially able to contribute more than $10.00 per week for child support, and still owed the doctor for expenses attendant to the birth of the child. His present wife is 20 years of age, was not joined as a party, did not participate in the hearing and was not called as a witness. All of the above findings of the court are not only based upon ample evidence, but appear to be uncontradicted in so far as they relate to Mr. and Mrs. Moore. The appellant testified that his child has been and is being well cared for by the Moores in that all of her needs are being met. That she is well adjusted, happy, healthy and intelligent and the Moores are doing their best for her. They keep her clean in a bright clean home. The child is well nourished, normal and adequately dressed. She has good personal habits and shows affection toward him. There is no hint in the record that anyone has attempted to poison the mind of the child against her father. Their relationship has been a happy one which under the record can be attributed to Mr. and Mrs. Moore.

The Moores have been married for 18 years, and have resided in their present home for about 15 years or more. Mr. Moore is 43 years of age and a master plumber.

“Whether the trier of the facts is the judge or jury, in testing the sufficiency of the evidence to determine if it supports the findings we must give credence only to the evidence and circumstances favorable to the findings and disregard all evidence to the contrary, indulging every legitimate conclusion tending to uphold such findings.” City of Lubbock v. Walsh, 316 S.W.2d 923 (Amarillo Civ.App., 1958, ref., n. r. e.), and cases cited therein.

Findings of fact made and filed by the court which are supported by the evidence are binding upon the appellate court. Campbell v. Swinney, 328 S.W.2d 330 (Dallas Civ.App., 1959, ref., n. r. e.); see also Harden v. Federal Farm Mortgage Corporation, 223 S.W.2d 39 (Galveston Civ.App., 1949, no writ hist.); Taylor v. Austin, 221 S.W.2d 933 (Galveston Civ.App., 1949, no writ hist.); City State Bank in Wellington v. Wellington I. S. Dist., 173 S.W.2d 738 (Amarillo Civ.App., 1943, approved by Sup.Ct., 142 Tex. 344, 178 S.W.2d 114, 1944); Rule 296, Texas Rules of Civil Procedure.

The appellant in this suit had the burden of establishing a material change of conditions since the divorce was granted on April 17, 1964, to the date of trial, and that an award of custody to him would be for the best interest of the child. We agree with the trial court that he failed to show a material change or any change of conditions. The controlling considerations are those changes of conditions affecting the welfare of the child. The appellant’s desires, acts, claims and beliefs are secondary considerations and are material only as they bear upon the question of the best interest of the child. Bukovich v. Bukovich, Tex.Sup., 399 S.W.2d 528, January 15, 1966; 20 Tex.Jur.2d 679, § 351.

There was no evidence of any occurrence or the existence of any facts arising since the divorce decree conducive to showing that the present custodial status of the child is or will be inimical to her welfare or will not be in her best interest. Bukovich v. Bukovich, supra.

All that is shown by the record in the nature of a change in conditions since the original award of custody are but changes in the appellant’s situation; namely, that he has since married and lives in a rented upstairs apartment. Unchanged is the fact that he has not yet paid for the expenses incident to the birth of the child and is unable to pay more than Ten Dollars ($10.00) per week for her support. He has no hospitalization insurance and no cash reserve or resources out of which he could provide emergency medical care for his child. He has no savings account.

Unquestionably the appellant loves his daughter as is demonstrated by his actions in exercising his visitation privileges and endeavoring to maintain his support payments, but this is as it should be and does not warrant a change in custody.

It is further reflected by the record that he is more fortunate than most fathers in that the Moores have been very exceptional in recognizing his privilege of visitation and in cooperating with him in every respect. He has always been not only welcomed by them but invited along with his new wife for dinner on Christmas and other occasions.

The parents of the child voluntarily turned the child over to the care of Mr. and Mrs. Moore during the period of their separation preceding the divorce. They have had the physical care and custody of her for the greater part of her life. The appellant has been visiting with and picking his child up at the Moore home over a long period of time.

“ ‘ * * * where a parent has surrendered his natural right to custody to a third person “who performs the duties incumbent upon him as the natural guardian, a new condition is created which inures to the benefit of the child.” In a proceeding “ “to regain custody of the child the paramount interest of the child becomes the dominant issue. Legate v. Legate, 87 Tex. 248, 28 S.W. 281.” ’ ” Reid v. Horton, supra.

The court by its judgment merely stabilized the present status of the child by awarding legal custody to Mr. and Mrs. Moore whose previous physical custody was with the tacit approval of the natural parents who voluntarily permitted them to assume duties incumbent upon them. Reid v. Horton, supra.

“In all cases any right of a parent must yield to the welfare and best interests of the child, and the desires or best interests of a parent will not control if in conflict therewith.

“The determination of the custody of children, as between divorced parents, must always turn on the facts of the particular case, and the award will not be disturbed on appeal unless abuse of discretion is shown.” 20 Tex.Jur.2d 653, § 326, and cases cited; see also 20 Tex.Jur.2d 678, § 349 and p. 677, § 348 of same text.

The contention of the appellant that it was incumbent upon the court to find him unfit before an award to third persons could be authorized is erroneous.

“The court may award custody of a child to some person other than a parent, or to some institution, if such a disposition of custody is required by the best interest of the child. * * * it is not necessary, to support an award to a third person, that the natural parents be disqualified to serve properly as custodian by reason of any immorality, and it has even been said that the fact that a parent may be a suitable custodian does not entitle him, as a matter of right, to custody if the best interest of the child will be served by an award to some other person.” 20 Tex.Jur. 2d 661, § 332, and cases cited therein.

All points of error are overruled and the judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

text:
    Floyde HEATHINGTON, Appellant, v. HEATHINGTON LUMBER COMPANY, Inc., et al., Appellees.
    No. 7555.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 3, 1966.

      T. R. Odell, Lubbock, Cecil H. Tate, Muleshoe, for appellant.
    Aldridge, Aldridge & Harding, Far well, Pat R. Bobo, Muleshoe, for appellees.
   CHAPMAN, Justice.

The pleadings upon which plaintiff-appellant Floyde Heathington went to trial sought to establish himself as a partner in the lumberyard business in Muleshoe, Texas. The business was first named Heath-ington Cash Lumber Company and later changed to Heathington Lumber Company. He' alleged the partnership was between himself and his older brother, Fairris Heathington, with the latter owning a ⅜ interest and appellant a ½ interest. The lumber company having been incorporated in June of 1964, the suit was against the corporation, the surviving widow, Mrs. Hattie Faye Heathington, individually and as Executrix of the estate of the named deceased, Glena Heathington, individually and as guardian of minor heirs, and other heirs unnecessary to mention.

Appellant also sought an accounting of the partnership.

Appellees pleaded the two-year and four-year statutes of limitation, Sections 4 and S of Article 3995, commonly called the Statute of Frauds and denied the existence of a partnership between the two brothers, or that one ever existed.

At the conclusion of the evidence, which consumed 234 pages of testimony and 26 pages of exhibits tried to a jury, the trial court dismissed the jury and rendered a take-nothing judgment against appellant. In doing so we believe the court committed reversible error.

In determining whether it was proper for the trial court to take the case from the jury and render the judgment himself, we must view the evidence in the light most favorable to the losing party, indulging against the judgment every inference that may properly be drawn. Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148, 143.

The case just cited was one where the jury was dismissed and the judgment rendered by the court. The cases cited by the Supreme Court for the rule of law stated in the preceding paragraph are cases where a verdict was instructed. Therefore, we may assume the same rule applies against the judgment rendered by the court as where the court instructs the jury to return a verdict. Stated in another way, “ * * * whether an error has been committed by a trial court in refusing motions for an instructed verdict and for judgments non obstante veredicto, a reviewing court must consider the evidence adduced in the light most favorable to the party against whom such motions are sought; * * Texas Employers Ins. Ass’n v. Smith, Tex.Civ.App., 235 S.W.2d 234 (writ refused).

Therefore, the same rule of inferences concerning the evidence as it applies to the judgment, where the losing party is denied the right to have the jury pass on issues, exists in instructed verdicts and judgments non obstante veredicto as where the case is taken from the jury and a judgment rendered by the court, the procedure followed in the instant case. The Supreme Court has approved the following statement in Houston Transit Co. v. McQuade, Tex.Civ.App., 223 S.W.2d 64 (writ refused):

“ ‘The court must presume to be true the evidence * * * which was favorable to the party against whom the verdict was instructed; it must also place upon the testimony favorable to him the most liberal construction in his favor that the evidence would reasonably bear, giving him the benefit of all reasonable inferences arising therefrom. Indeed, all evidence contradictory to that favorable to the losing party, under an instructed verdict, should be disregarded.’ ”

Considered then, as it must be considered, we believe there is probative evidence that precluded a finding by the court as a matter of law that the lumberyard partnership entered into by Fairris Heathington and Floyde Heathington had been dissolved at least four years before the filing of the original petition herein.

Under the “Dead Man’s Statute,” Article 3716, Vernon’s Tex.Civ.St., appellant was, by proper objections from counsel for appellees, prevented from testifying to any transactions with or statements by his deceased brother concerning the lack of dissolution of the partnership.

Without detailing all the testimony, we feel compelled to say that the evidence showed an agreement by the brothers to form a lumberyard business in Muleshoe, Texas, as partners and that they did so either in 1947 or 1948. Their mother testified to hearing them discuss such projected enterprise in her home at the dining table in 1947. She heard them discuss it three or four times.

The exhibits introduced show that the name of the partnership was first Heath-ington Cash Lumber Company in Muleshoe, Texas; that the name was later changed to Heathington Lumber Company; that a signature card for Heathington Cash Lumber Company at the Muleshoe State Bank showed the signature of both brothers, Floyde’s later having been marked through. He testified he never gave anyone authority to have it voided. Plaintiff’s Exhibit 17 shows Floyde was charged Yz of the donations made by the partnership and Fairris Yz. Defendants’ Exhibit 1 shows Floyde was charged Yz of the wages of an employee.

A financial statement filed with Wm. Cameron Lumber Company for credit and signed by Fairris Heathington shows the business was a partnership. An exhibit out of the original journal of the partnership dated 1/1/48 shows figures from which a jury could assume that Floyde Heathington invested $4,000 in the partnership, as did other pages from the record. Other figures show instances where he drew money from the business, as did Fairris.

Several salesmen who called on the company testified to transacting business with Floyde and one witness testified to buying a ready-built house out of the lumberyard from Floyde. Another witness who built houses in the yard testified he took orders from both brothers and that both were in charge of the business.

Appellees did not specifically plead a dissolution of the partnership on any particular date but denied under oath the partnership alleged by appellant; pleaded that no such partnership was in existence; or that such ever existed.

In applying the rules of law in the cases heretofore cited and quoted from to these facts related, this evidence is sufficient for the jury to find that in 1948 and 1949 a lumberyard partnership existed between the two brothers, and refutes ap-pellees’ pleading of a denial that any partnership ever existed between them in the lumber business.

Their mother testified about their partnership in the construction of a house in Lubbock and Plaintiff’s Exhibit 1 shows the written contract concerning such venture. By its own terms that partnership expired at the date of the sale of the house. We see no material connection between that arrangement and the Mule-shoe partnership except that the profit from the sale of the house may have been applied to their lumberyard business.

The plea of the two-year statute of limitation is overruled. “That statute does not apply to dealings between partners.” Morris v. Nunn, 79 Tex. 125, 15 S.W. 220.

So far as the record shows, the lumberyard partnership between the parties was clearly one at will. There is not any evidence that a time limit was set for the partnership relationship between the brothers to exist in the lumberyard business. Being oral and terminable at will, it was susceptible of being performed within a year. Therefore, the Statute of Frauds pleaded by appellees does not apply. Howell v. Bowden, Tex.Civ.App., 368 S.W.2d 842 (N.R.E.).

This leaves the four-year statute of limitation as the only other defense pleaded to the appellant’s contentions that a partnership existed and that it continued until the Heathington Lumber Company was incorporated in 1964.

Every partnership is prima facie a partnership determinable at the will of any one of the persons who have entered into it unless it had been agreed that the contract would endure for a specific time. Wright v. Ross, 30 Tex.Civ.App. 207, 70 S.W. 234 (writ refused).

There being no allegation that the lumber partnership was to endure for any fixed term, we believe we would have to consider it a partnership at will. Ware v. Chatham, Tex.Civ.App., 56 S.W.2d 229 (writ dismissed).

“Until the dealings of the parties are finally concluded and the obligations of the partnership paid, and an accounting and full settlement had, limitation does not begin to run.” Roberts v. Nunn, Tex.Civ.App., 169 S.W. 1086, 1090 (writ refused).

Since the evidence is sufficient to show that a partnership existed in the lumberyard business between the brothers, the rule that has been stated by our court is that “ * * * a status or condition of things once shown to exist is presumed to continue until the contrary appears.” Ferguson v. Conklin, Tex.Civ.App., 51 S.W.2d 622 (N.W.H.).

Appellant testified he lived in Muleshoe in 1948 and 1949, was in the lumber business located out on the Clovis Road where it is still located, that he never gave anyone authority to scratch through his name on the bank partnership signature card, that he never sold any part of the business and that he had been back to the lumberyard as much as once a year since he returned to Lubbock.

In addition to the testimony of the mother concerning the genesis of the partnership she testified that after Floyde came back to Lubbock from Muleshoe the other boy kept telling him: “When business picks up, I will let you know.” She also testified that Fairris sent a statement of accounting for his father to give to Floyde to sign and that if he signed it to give him the accompanying check for $1,500. The statement if signed would have terminated any previous partnership between the brothers. She testified he refused to sign the instrument or accept the check because it did not cover what he had in it. She further testified on cross-examination without objection that: “Well, they are still partners.”

Appellees take the position that the tender of the check for $1,500 and the copy of the purported accounting sheet of December 1949 introduced into evidence dissolved, as a matter of law, the partnership. In the face of all the testimony heretofore related and the applicable rules of law cited and quoted we cannot agree.

They cite First Nat. Bank of Amarillo v. Rush, Tex.Com.App., 210 S.W. 521 (opinion adopted) and Green v. Waco State Bank, 78 Tex. 2, 14 S.W. 253. The former held that the testimony raised a question of fact for the jury, a finding directly contrary to the contention of ap-pellees in the instant case. The latter case held that any one of the partners could dissolve the partnership firm at any time provided it was done under such circumstances as would not wrong or defraud his partners and a time fixed in the future for the dissolution to take effect and. provided it was by explicit notice to the other partners. (Italics added.)

Clearly these rules of law do not apply to the facts of our case. The accounting statement relied on by appellees could not be said to constitute, as a matter of law, explicit notice of dissolution, nor was there any evidence of a time fixed in the future for the dissolution to take effect. Therefore, we can find in those two cases no comfort for appellees’ position in the instant case.

We hold that fact issues were raised in the testimony, so the judgment of the trial court is reversed and remanded for a new trial.


author: PER CURIAM. CADENA, Justice.

text:
    Marshall STARR, Appellant, v. KOPPERS COMPANY, Inc., et al., Appellees.
    No. 14419.
    Court of Civil Appeals of Texas. San Antonio.
    June 30, 1965.
    On the Merits Nov. 10, 1965.
    Rehearing Denied Feb. 9, 1966.

      Rudy Rice, James H. Brannon, San Antonio, for appellant.
    House, Mercer, House & Brock, Carl Wright Johnson, Franklin D. Houser, Alfred W. Offer, Nat L. Hardy, San Antonio, for appellees.
   PER CURIAM.

Mavor-Kelly Company, one of the appel-lees herein, has filed a motion to dismiss this appeal because of the failure of Marshall Starr to comply with the jurisdictional requirements for an appeal.

Likewise Koppers Company, Inc., another appellee herein, has filed a motion that this appeal be dismissed as to it. These two motions will be considered together.

It appears from the transcript that Kop-pers Company, Inc., in the trial court, filed a motion for summary judgment, which motion was heard and granted in an order signed on March 20, 1965, and judgment was entered that the plaintiff, Marshall Starr, take nothing by reason of his suit against Koppers Company, Inc., and that said defendant go hence with its cost without day. The court found that the cause of action against Koppers Company, Inc., was severable from the cause of action asserted against the defendant Mavor-Kelly Company, and made an order in this same judgment severing the cause of action against Koppers Company, Inc., from that asserted against Mavor-Kelly Company. On the same day the trial court heard Mavor-Kelly Company’s motion for summary judgment, under the same style and number and, by agreement of parties, largely on the same evidence, granted that motion and entered an order that Marshall Starr take nothing as against Mavor-Kelly Company. Both of these motions were heard and granted, and the summary judgments rendered under Cause No. 4250, styled Marshall Starr v. Koppers Company, Inc., et al. Apparently, there was no effort made to carry out the order severing the two causes of action by giving one a new style and number. Thereafter, Marshall Starr undertook to prosecute an appeal to this Court by treating these two judgments as one, and filing but one appeal bond and one transcript. In other words, in prosecuting his appeal appellant has treated these two judgments as though they were one final judgment in Cause No. 4250, styled Marshall Starr v. Koppers Company, Inc., et al. The appellees contend that appellant has attempted to appeal from two judgments by giving but one appeal bond and filing one transcript, and has not prosecuted an appeal from that part of the cause of action which was severed from the main cause.

It occurs to us that the court, by entering these two summary judgments, largely upon the same evidence, on the same day, under the same style and number, without having the severance carried into effect by giving the severed part of the suit a new number on the docket and a new style, has disregarded and impliedly set aside his order of severance, and that these two judgments taken together constitute but one final judgment, from which appellant has prosecuted this appeal. The two orders taken together dispose of the entire lawsuit. The fact that they were in two instruments does not prevent them from being one judgment. H. B. Zachry Co. v. Thibodeaux, 364 S.W.2d 192 (Tex.1963); Texaco, Inc. v. McEwen, Tex.Civ.App., 356 S.W.2d 809.

When the Zachry case was before this Court we wrote an opinion dismissing the appeal (361 S.W.2d 579), because the judgment was in two instruments, rendered on different dates, and we were of the opinion that they did not constitute one final judgment. The Supreme Court did not agree with us and held, in effect, that the two instruments constituted but one final judgment. H. B. Zachry Co. v. Thibodeaux, supra.

The motions to dismiss are overruled.

On the Merits

CADENA, Justice.

Appellant, Marshall Starr, hereinafter called plaintiff, complains of the rendition of a summary judgment that he take nothing by his suit against defendants Koppers Company, Inc., and Mavor-Kelly Company, both Texas corporations.

Plaintiff alleged that on or about February 8, 1960, while he was performing his duties as a construction worker in the erection of an electric plant for Medina Electric Co-operative, Inc., near Pearsall, Frio County, some unidentified persons fired up a “dope pot,” using some “bitumastic-type” products of defendants. The resulting fumes allegedly had an injurious effect on the skin of plaintiff. Plaintiff disclaimed any knowledge of the dangers involved in the heating and melting of such material, and contended that defendants were negligent in failing to warn of the dangers involved in its use, and that such negligence was the proximate cause of plaintiffs injury.

Defendants filed a general denial and subsequently filed separate motions for summary judgment. Koppers’ motion was supported by the affidavit of E. E. Farrow, managing partner of the partnership of E. E. Farrow Company, plaintiff’s employer. The Mavor-Kelly motion was supported by the affidavit of Thomas Kelly, who described himself as “a one-half owner in the Mavor-Kelly Company.” In substance, these affidavits recited that no product manufactured by Koppers or distributed by Mavor-Kelly had been used on the Frio County project. The Farrow affidavit, in addition, asserted that the only product which was used on the Frio County job for the purpose of coating underground pipe was a material produced by Reilly Tar & Chemical Corporation, which is not a party to this suit.

Both motions for summary judgment also relied on the oral deposition of plaintiff. Such deposition, insofar as it is relevant here, discloses that plaintiff had no personal knowledge concerning the type of material which was being used by the unidentified persons mentioned in his petition on the date of his alleged injury.

Plaintiff’s reply to the motions for summary judgment was supported by the affidavits of George E. Lindsey and Roman R. Quiroz, both of whom stated that on or about February 28, 1960, they were working as pipe fitters on the Frio County project and were using a “dope” that they were melting in a dope pot for the purpose of applying it to underground pipes. The material they were using was described as one which had to be stripped from its metal containers, broken into chunks and heated so that it could be applied to the pipes in a hot condition.

Lindsey swore that material being used was “Bitumastic Enamel which was manufactured by Koppers Company, Inc., and sold by Mavor-Kelly Company of Houston, Texas.” Both affiants asserted that they had been given no warning that the fumes from the material were harmful to their bodies, and both stated that after working with the material for a short time they found that the fumes from the dope pot were generally harmful and irritating to their bodies, and particularly harmful to the exposed areas of their bodies, particularly to the face and hands.

The affidavits relied on by plaintiff, if taken at face value, are sufficient to raise an issue of fact as to whether the material which was being used on or about February 28, 1960, was manufactured by Koppers and sold by Mavor-Kelly. Defendants contend that the Lindsey and Quiroz affidavits are insufficient as a matter of law because they do not comply with the requirements of Rule 166-A(e), Texas Rules of Civil Procedure, that supporting affidavits be made on personal knowledge, that they set forth such facts as would be admissible in evidence, and that they “show affirmatively that the affiant is competent to testify as to the matters stated therein.”

Defendants did not object to the sufficiency of plaintiff’s counter-affidavits in the trial court. Assuming that the affidavits are insufficient in the respects asserted by defendants, upon proper objection or exception in the trial court, plaintiff would have had the right to request leave to amend or supplement the affidavits, and the court’s refusal to allow such curative measures might have amounted to an abuse of discretion. De la Garza v. Ryals, Tex.Civ.App., 239 S.W.2d 854, wr. ref. n. r. e. Defendants’ complaint here comes too late. Lobit v. Crouch, Tex.Civ.App., 293 S.W.2d 110, wr. ref. n. r. e.; cf. Youngstown Sheet & Tube Co. v. Penn, Tex., 363 S.W.2d 230 (1962); Hall v. Fowler, Tex.Civ.App., 389 S.W.2d 730, no writ.

In any event, the objections here urged by defendants are without merit. Both affiants swore that, as pipe fitters, it was necessary that they know and be familiar with the different types of materials. Each affiant stated that, based on such experience and knowledge, he knew that “this (i. e., material manufactured by Koppers and sold by Mavor-Kelly) was the material we were using.” It cannot be said that such statements fail to show that the affidavits are made on personal knowledge, or that they fail to show that the affiant is competent to testify as to the matters stated therein. This is not a case such as Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961), where the statements made in the affidavit were obviously based on hearsay. See Youngstown Sheet & Tube Co. v. Penn, supra.

Defendants rely on Heien v. Crabtree, Tex.Civ.App., 364 S.W.2d 271, aff’d, 369 S.W.2d 28. In that case the Amarillo Court held insufficient statements contained in an affidavit on the ground that it was not shown how the affiant could have had such knowledge except by hearsay. (Our Supreme Court, in affirming the judgment of the Amarillo Court, did not pass on this point.) Here we have an explanation of the source of affiants’ knowledge.

Defendants next insist that the summary judgment was properly granted because, even if it be assumed that the material in question was manufactured by Koppers and sold by Mavor-Kelly, plaintiff cannot recover since, not being the ultimate consumer of the product, he did not stand in “privity” with either of the defendants. This contention overlooks the basis for the cause of action which plaintiff asserts in this case. He bases his right to recover on the negligence of the defendants in failing to warn that fumes resulting from the heating of the product are injurious to the human body. His cause of action is thus based on negligence in failure to warn, rather than on any theory of implied warranty. Whatever may be the present embattled status of the privity doctrine in cases based on so-called implied warranty (see Prosser, “The Assault upon the Citadel (Strict Liability to the Consumer),” 69 Yale L.J. 1099), the Courts have excised the privity requirement from the law of negligence. Armstrong Packing Co. v. Clem, Tex.Civ.App., 151 S.W. 576, wr. ref.; McPherson v. Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696; Prosser, Torts (2d ed., 1955) 498; Feezer, “Tort Liability of Manufacturers,” 19 Minn. L.Rev. 752.

Today the general rule is that one who manufactures or supplies a product has a duty of reasonable care to users, and to those in the foreseeable zone of danger of such use, to prevent physical harm that he should reasonably foresee could result from the use of the product for its intended purpose. The obligation of such manufacturer or supplier is to exercise reasonable care to discover the dangerous propensities of the product and to warn those whom he should expect to use it. Restatement, Torts 2d, § 392 (1965).

The affidavits relied on by plaintiff permit the inference that the product involved, when put to its intended use, had an injurious effect on exposed areas of the human body. Defendants have filed no affidavits denying this dangerous characteristic of the product. Under these circumstances, it cannot be said as a matter of law that defendants’ failure to warn was not a breach of their duty to prospective users and to those in the foreseeable danger zone.

Since the record discloses the existence of material issues of fact, the judgment of the trial court is reversed and the cause remanded for further proceedings.


author: McDONALD, Chief Justice.

text:
    Averill DOUTHITT et al., Appellants, v. Everett HAYNIE, Appellee.
    No. 4467.
    Court of Civil Appeals of Texas. Waco.
    Jan. 20, 1966.
    Rehearing Denied Feb. 3, 1966.
    B. R. Reeves, Palestine, for appellee.
    A. H. Menefee, W. R. Malone, Madison-ville, (on appeal only), Knight & Knight, Madisonville, (on appeal only), for appellants.
   McDONALD, Chief Justice.

This is the contest of the will of Mrs. Carrie Langston on the ground that testatrix was of unsound mind, and was unduly influenced at the time the will was executed. Plaintiffs are testatrix’s brothers, sisters, nieces and nephews and are all of her heirs at law; defendant Haynie is sole beneficiary and executor of testatrix’s will. Trial was before the court without a jury which, after hearing, found that testatrix was not of unsound mind on September 18, 1952, the date of the execution of such will; found that the will was not procured by undue influence exerted by defendant Haynie or any other person; confirmed and approved the judgment of the County Court probating such will; and decree that plaintiffs take nothing.

Plaintiffs appeal, contending the trial court’s finding 1) that Carrie Langston was not of unsound mind; and 2) that Carrie Langston was not laboring under undue influence exerted upon her by proponent or anyone else; are against the great weight and preponderance of the evidence.

Testatrix executed the will on September 18, 1952. She signed with her mark in the presence of the subscribing witnesses, one of whom was the secretary of the preparing attorney, Joe H. Seale. Defendant Haynie was sole beneficiary and executor of the will. Defendant was present at the signing of the will and had driven testatrix to the office of the preparing attorney where the will was executed. Testatrix was 63 years old when she executed the will; which was 3 years after the death of her husband; testatrix died 12 years after execution of the will; and was survived by several brothers, sisters, nieces and nephews who are plaintiffs herein.

Plaintiffs’ 1st point complains of the trial court’s finding that testatrix was not of unsound mind at the time of the execution of the will.

Some 20 witnesses testified as to the mental capacity of testatrix; 10 witnesses characterized the mind of testatrix as unsound, while 10 others testified she was of sound mind. There is evidence that testatrix was eccentric, peculiar, retiring, and timid; and that she could not read and write. There is other evidence that she attended to her business; knew the nature and extent of her property; and knew her brothers, sisters and kinpeople.

Plaintiffs contend that if testatrix was of sound mind she was laboring under an insane delusion as regards her brothers and sisters “not caring anything about her”, when the facts were they had dug her a well, tried to get her to come and live with them, and had in fact been good to her. The record reflects that testatrix’s brothers and sisters had opposed her marriage; that she had a lawsuit with some of them over property ; that when testatrix’s husband got into trouble he appealed to her people for help but did not receive any.

While the testimony is in conflict on whether testatrix was of unsound mind, and upon whether she was laboring under an insane delusion, there is ample credible testimony to sustain the finding of the trial court, and such finding is not against the overwhelming weight and preponderance of the evidence.

Plaintiffs’ 2nd contention complains of the trial court’s finding that testatrix was not laboring under undue influence exerted by proponent or anyone else. Plaintiffs complain that testatrix was unduly influenced by her deceased husband, and by proponent. The test of undue influence is whether such control was exercised over the mind of testatrix as to overcome her free agency and free will and to substitute the will of another so as to cause the testatrix to do what she would not have done but for such control. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138; Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208; Boyer v. Pool, 154 Tex. 586, 280 S.W.2d 564; Lipper v. Weslow, Tex.Civ.App. (n. r. e.) 369 S.W.2d 698.

Testatrix made an unnatural disposition of her property, in that she left it to defendant, who was not related to her, and excluded plaintiffs, who were her brothers, sisters, nieces and nephews. It is further shown that defendant had some opportunity and perhaps motive to exercise undue influence over testatrix. Contestants must go further, however, and prove that the will as written resulted from defendant (or another) substituting his mind and will for that of testatrix.

Testatrix’s people opposed her marriage; testatrix and her husband had a lawsuit with some of her people; and they refused to help when testatrix’s husband was in trouble. Defendant, on the other hand, was kind to testatrix; leased her property; he and his wife carried her to the grocery store to buy groceries.

Testatrix did. not execute such will until her husband had been dead 3 years; she lived 12 years after executing it; and told in the community that she was not going to will her property to her kinpeople.

We think there is no showing of undue influence, and in any event the finding of the trial court that testatrix was not unduly influenced is not against the great weight and preponderance of the evidence.

All of plaintiffs’ points and contentions have been considered and are overruled.

Affirmed.


text:
    Bob SIMONS, d/b/a Bob Simons Grain Company, Appellant, v. NIAGARA FIRE INSURANCE COMPANY, Appellee.
    No. 16690.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 21, 1966.
    Rehearing Denied Feb. 18, 1966.
    Herrick & Tillman, and John W. Herrick, Fort Worth, for appellant.
    Sanders & Nolen, and Fleming A. Waters, Dallas, for appellee.
   LANGDON, Justice.

This case grows out of a claim on an insurance policy which provided coverage against losses of or damage to property of the appellant while in transit. On March 8, 1962, the appellant purchased from the Commodity Credit Corporation a quantity of grain which was stored at the Spacek Grain Company Elevator at Ralls, Texas, and the Lorenzo Grain Co-op Elevators at Lorenzo, Texas. On approximately March 20, 1962, the appellant was informed that he no longer owned any grain at either elevator. An investigation revealed that on March 13, 1962, two loads of appellant’s grain were loaded at the Lorenzo Grain Co-op and on March 15, 1962, and March 17, 1962, two more loads were loaded at the Spacek Grain Elevators. The grain was loaded on the trucks of the Wichita Trucking Co. and receipts were given by its drivers Messrs. Crane and Alvaredo. Appellant had given no one the authority to take his grain from the elevator. Subsequent to being removed from the elevator the whereabouts of the grain has remained unknown to the appellant. The case was tried before the court without a jury. The court in effect found that the losses sustained were not “in transit” as that term was contemplated by the parties to the insurance contract and therefore the losses sustained whether by theft or otherwise were not insured losses within the coverage provided by the insurance policy.

We are of the opinion that the court properly construed the contract to cover losses only while the goods were in transit and the court properly found that these goods were not in transit when the losses occurred. The contract in question is plain and unambiguous. The grain was in storage in the elevators at Ralls and Lorenzo when it was purchased by the appellant. The appellant did not at any time authorize the removal of the grain from the elevators or arrange for its loading and delivery elsewhere. The grain was in storage when unauthorized persons took it.

“An inland transit policy, insuring the plaintiff on merchandise while loaded for shipment on, and in transit in or on, described motor trucks, was held in Mayflower Dairy Products, Inc. v. Fidelity Phenix Fire Ins. Co. (1938) 170 Misc. 2, 9 N.Y.S.2d 892, not to cover the theft of merchandise from two trucks kept loaded on the premises overnight, one of which was removed from the premises by the thief, and the other pilfered on the premises. It appeared that the plaintiff’s usual practice was to keep motor trucks loaded at all times, and that after the day’s deliveries, merchandise was replaced in the trucks on their return at the end of the day. The court said that transportation or in transit as applied to a seller making its own deliveries to customers means the movement of the loaded conveyance carrying the goods from the starting point or seller’s premises to the point of destination or place of delivery to the buyer or customer, and that while there may be some reasonable deviation such as temporary stops incidental to the process of delivery, or even the return of undelivered goods, the terms transportation or in transit imply the continuous action of moving the goods from the one point and putting them down in another. The court concluded that the situation whereby the seller, for his own convenience, loads the goods on its truck on its own premises on the evening of one day, and keeps the loaded truck stored in such premises through the night, until the truck is manned and proceeds on its way the morning of the next- day, implies storage. * *

“However, goods taken from the insured’s premises by one posing as a truckman were held in Glenmore Silk Corp. v. Fidelity & Guaranty Fire Corp. (1934) 151 Misc. 734, 271 N.Y.S. 174, not to be ‘in transit.’ The court said that a reading of the entire contract established clearly that what the parties intended was protection of property while in transit, and that the loss in question differed in no respect from a theft of the identical goods from the premises of the plaintiff by burglars.” 80 A.L.R.2d 445-455, § 3, “Anno: Insurance — Coverage — ‘In Transit’”; see also 37 A.L.R.2d 1103, § 16; see also cases cited in 54 A.L.R. 488, under heading “Meaning of term ‘in transit’ as used in insurance policy.”

The word transit has a significance of activity, of motion and direction. Literally it means in course of passing from point to point and such is its common acceptation. Ordinarily goods in transit would imply that the goods will be lawfully picked up at a given place and hauled to a place designated by the owner or one with the authority to so designate.

This case does not involve a situation in which grain is lawfully picked up by authorized persons who before making delivery decide to steal it or otherwise convert it to their own use.

In the instant case unauthorized persons picked up the grain. Grain stolen from an elevator or a warehouse cannot be said to be “in transit” within the meaning of an insurance contract while a thief is carrying it away.

We overrule all points of error and affirm the judgment of the trial court.

Affirmed.


author: WILSON, Justice.

text:
    Watson C. ARNOLD, Appellant, v. Frank R. STANFORD et al., Appellees.
    No. 4424.
    Court of Civil Appeals of Texas. Waco.
    Jan. 20, 1966.
    Rehearing Denied Feb. 10, 1966.
    Watson C. Arnold, Waco, for appellant.
    Phil E. Teeling, Waco, for appellees.
   WILSON, Justice.

This is a boundary suit in the form of a trespass to try title action. Plaintiffs contended that a northernmost line, AB, was their north property line. Defendant’s position was that a line farther south, CD, was the true north line. The jury found the line AB to be the north property line of the land conveyed to plaintiffs’ predecessor in title, and found in favor of plaintiffs on the issue of adverse possession. Judgment was also rendered against defendant for actual and exemplary damages.

Defendant’s first point is that the court erred in submitting the issue as to whether the line AB was the north line of the tract conveyed to plaintiffs’ predecessor by a specified deed because the description in plaintiffs’ petition makes it impossible for that line to be plaintiffs’ north boundary. The description in the deed referred to in the special issue calls for a beginning point in the northwest corner of a 50-acre survey which the parties agree is now impossible to locate. It described a parallelogram 1871/2 varas wide, and 375 varas in length, and recited the tract contained 12½ acres. The tract for which judgment was rendered contains 15.2 acres. 2.242 acres is in dispute.

Because plaintiffs’ petition describes the tract, judgment for title to which they prayed, as beginning “at the S. W. corner of said 12.5 acre tract” described in the deed referred to, defendant urges that they have admitted the tract they own contains only 12.5 acres, rather than 15.2 for which they sought and obtained judgment. They insist the jury finding refers and is tied to the deed which recited the area conveyed was 12.5 acres. We are unable to accede to this contention. The pleading and the issue merely sought to identify the tract intended to be conveyed by the deed which recited the quantity to be 12.5 acres. The pleading referred to the deed reciting the acreage in order to identify a definite beginning corner for the description, but the pleaded description contained calls for course and distance which described the larger area.

A call for course and distance ordinarily prevails over a call for quantity. Ayers v. Harris, 64 Tex. 296; Rand v. Cartwright, 82 Tex. 299, 18 S.W. 794, 795. The pleading did not constitute an admission precluding judgment.

It is argued that because the third call in the deed referred to was for a bearing N 30 E, rather than N 60 E, which would be necessary to effect a closing of fieldnotes, the calls for distance could not be utilized. As said in Barnard v. Good, 44 Tex. 638, 641, “when it is seen that the four side lines are the same length, can it be possible that anyone was misled or did not know at once that the variation from 56 degrees to 85 degrees in the course of the second line was a mere clerical error,” and that by making the correction in course the fieldnotes would close; whereas they would not otherwise do so. In this case the location of ancient fences and fence lines is consistent with the call for distance and the parallel location of the boundary lines. When related to earlier surveys calling for a river, the upper line boundary fixed by the judgment is also more consistent than would be the lower line on which defendant relied. Description in conveyances accepted and executed by appellant sustain the jury finding.

We have considered appellant’s no-evidence and insufficient-evidence points concerning adverse possession findings, and they are overruled.

Many of appellant’s complaints were not preserved. None, in our opinion, present reversible error and all are overruled.

Affirmed.