text:
    The FIDELITY-SOUTHERN FIRE INSURANCE COMPANY, Appellant, v. G. G. WHITMAN, Appellee.
    No. 14.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Dec. 6, 1967.
    Rehearing Denied Jan. 3, 1968.

      Talbert, Giessel, Barnett & Stone, and Alice Giessel, Houston, for appellant.
    Joseph D. Jamail, John Gano, William J. Stradley, Houston, for appellee.
   TUNKS, Chief Justice.

On November 20, 1963, appellee’s home and its contents were damaged by fire. On such date there was in force a fire insurance policy covering this loss, which policy was issued by appellant insurance company.

During the afternoon of November 20, 1963, after the fire, appellee and one J. R. Smith, claims manager for appellant, met at the premises and conducted a preliminary investigation of the damage done. On that occasion there was a general discussion between Smith and appellee concerning the coverage afforded by the insurance policy in question. It was generally understood and agreed at that time, and at later dates, that the policy covered, within limits, the fire damage to appellee’s house, the fire damage to the contents of appellee’s house, appellee’s additional living expense while his house was being repaired, the damage to the trees and shrubbery on appellee’s lot and certain items that were pilfered or stolen from appellee’s premises following the fire.

On November 22, 1963, appellee went to-the office of J. R. Smith for the purpose of discussing his claim under his insurance policy. According to appellee’s version of that conference on that occasion, he informed Smith that he was without sufficient available funds to meet the emergency with which he was confronted and sought to have a partial payment made on his claim. Appellee’s testimony is to the effect that he and Smith then agreed that his house had been damaged at least $5,500.00, that he had sustained a loss of at least $1,000.00 to the contents of his house and that he would incur additional living expense while deprived of the use of his house in the amount of at least $220.00.

On the occasion of such conference, ap-pellee was furnished with two proof of loss forms which he, with Smith’s assistance, filled out and signed. On one of the forms the damage to the house was shown at $5,550.00. On the other, the damage to the contents of the house was shown at $1,000.00 and the additional living expense to be incurred was shown at $220.00. Appellant’s check in the amount of $1,220.00 was issued and delivered to appellee. He endorsed and cashed the check. Later, appellee authorized a contractor to repair his house. Appellant issued its check in the amount of $5,550.00 to appellee’s contractor and mortgagee (as authorized by the proof of loss signed by appellee) in payment of the cost of those repairs.

Appellant contends that at the November 22, 1963, conference, there was a compromise and settlement of appellee’s claim under his policy and that the proof of loss forms signed by appellee and the checks endorsed by appellee and his contractor contained releases of appellee’s said claim as compromised.

Appellee contends that the payments made to him and his contractor pursuant to the November 22, 1963 conference, were only partial payments of his loss and that it was agreed that additional and full payment would be made after the full extent of his loss was determined.

Soon after the conference of November 22, 1963, between the appellee and Smith, the appellee authorized a contractor to begin the work of repairing his house. Those repairs were completed sometime after the middle of January, 1964, and it was not until that time that appellee was again able to occupy his house. Appellee signed a document accepting the house as repaired, which document was presented by the contractor to appellant and the contractor was paid the sum of $5,500.00 for making such repairs.

About the last of January or first of February, 1964, appellee again called on Smith for the purpose of requesting additional payments for his loss under his policy. On that occasion Smith took the position that the claim had been compromised and fully paid and declined to accept liability for additional payments. He did, however, on appellee’s request, furnish ap-pellee with additional proof of loss forms. Those proof of loss forms were fully and formally executed under oath by appellee and showed the losses to be: to the house, $7,550.00; to the contents of the house, $2,688.60; for additional living expense incurred, $445.00; and damage to shrubbery, $80.00, making a total of $10,763.60. The proof of loss form indicated a credit to the insurance company of $6,770.00 already paid, leaving a balance due, according to appellee’s revised proofs of loss, in the amount of $4,043.60. Appellant having refused the claim, this suit was instituted by appellee to recover the balance of his claimed loss.

In the trial court the jury found that Smith and the plaintiff agreed that the payments of $5,500.00 and $1,220.00 would not be in full settlement of all of the plaintiff’s claims under the policy, but that the $5,500.00 payment to his contractor paid for full restoration of his house. As to the other items claimed by him, the jury’s findings were as follows: appellee incurred outside living expense in excess of the amount paid him on November 22, 1963; appellant’s agent, Smith, represented to appellee that the check issued to plaintiff in the amount of $1,220.00 was “only in partial payment of the losses to plaintiff of his personal property and for outside living expense and that additional payment would be made for any such other losses”; that plaintiff executed the instruments in question (the proof of loss forms and the endorsement on the check issued him) in reliance upon such representation; that the actual value to plaintiff of the personal property lost, damaged or destroyed by the fire was $2,589.20; that the reasonable necessary increase in living expense incurred by plaintiff as a result of the fire was $445.00; that between November 22, 1963, and the time plaintiff moved back into his house, personal property was stolen from or mysteriously disappeared from the premises; that the actual value of such stolen property was $99.40; and that the value of the trees, shrubbery and lawn lost, damaged or destroyed by the fire was $80.00.

Appellee moved for judgment on the verdict.

Appellant filed a motion for judgment non obstante veredicto upon, in substance, the following grounds: there was no evidence that Smith told appellee that the $1,220.00 payment was only a partial payment of the damage to the contents of this house and additional living expense. There was no evidence that appellee relied on any such statement by Smith. The evidence showed as a matter of law that appellee had executed a valid binding release of his claim under his policy.

The trial court rendered judgment on the jury’s verdict for the total amount of those sums so found by the jury to have been lost by appellee as a result of the fire in question, less the $1,220.00 previously paid on those items.

Appellant, within ten days of the day the judgment was signed, filed a motion for new trial. There were only two grounds stated in that motion for new trial. One was that there was insufficient evidence to support the jury’s finding that Smith had told appellee that the $1,220.00 payment was only a partial payment; the other was that there was insufficient evidence to support the jury’s finding that appellee relied on any such statement in signing the documents alleged to be releases.

No amended motion for new trial was filed by appellant.

The transcript originally filed in this case did not reflect that any action was taken by the trial court on defendant’s motion for judgment non * obstante veredicto. There was no order denying such motion. We therefore held that only those points of error predicated upon assignments in the motion for new trial were properly before the court. We held that those points of error germane to the assignments in the motion for judgment non obstante veredicto, which motion had not been presented to nor ruled on by the trial court, were not proper subject for our consideration. Since the motion for new trial only related to the sufficiency of the evidence to support the jury’s findings as to Smith’s representation and the plaintiff’s reliance thereon, and since we found that there was sufficient evidence in the record to support such findings, we affirmed the judgment of the trial court.

The appellant later, acting pursuant to Rule 316, Texas Rules of Civil Procedure, on the sixth day of November, 1967, procured from the trial court an order overruling and denying its motion for judgment non obstante veredicto, nunc pro tunc, as of January 23, 1967. In that order, it is recited that the motion for judgment non obstante veredicto came on for hearing and consideration with due and appropriate notice to all interested parties and their counsel and recited that the motion was overruled and denied.

In accordance with Rule 428, T.R.C.P., we have heretofore given leave to file supplemental transcript which contained a copy of the trial court’s ruling overruling, nunc pro tunc, appellant’s motion for judgment non obstante veredicto. We, therefore, now have properly presented to us for our consideration, appellant’s points of error based upon the proposition that appellee has executed a valid binding release which precludes the entry of judgment for him.

The check given appellee by Smith on November 22, 1963, had on it the following language :

The endorsement on the back of the check appearing above the signature of appellee and his wife, is in the following language:

“By endorsement hereof payee hereby releases all claims arising out of the oc-current referred to on the face hereof against
Fidelity-Southern Fire Insurance Co. of Houston
and where applicable, it’s insured
/s/ Mildred G. Whitman
/s/ G. Gordon Whitman”

The acceptance of the check and its endorsement constituted a full settlement and release of all claims arising out of fire damage to personal property and additional living expense. It is unambiguous. Under those circumstances, testimony to the effect that Smith told appellee that the check was “only in partial payment of the losses” was violative of the parol evidence rule. McCormick and Ray, Tex. Law of Evidence, 2d Ed., Sec. 1612. The jury’s findings that Smith had made such a statement, and that appellee had relied on it and that appellee and Smith agreed (contrary to the plain language of the written instrument) that the payment of the $1,220.00 would not be in full settlement, did not constitute a basis for disregarding the settlement and release and for rendition of judgment in plaintiff’s behalf. Cannon v. Pearson, 383 S.W.2d 565 (Tex.Sup.Ct.); Connell v. Provident Life & Acc. Ins. Co., 148 Tex. 311, 224 S.W.2d 194; Texas & P. R. Co. v. Poe, 131 Tex. 337, 115 S.W.2d 591.

The jury also found, in response to a special issue submitted to it, that the appellee and the appellant’s agent, Smith, were mutually mistaken in that they both believed that plaintiff’s home would be sufficiently reconstructed by Christmas of 1963, for plaintiff’s occupancy. Appellee suggest that the finding, showing a mutual mistake, is sufficient in law to nullify and avoid any purported settlement and release in this case.

In Walton v. Steffens, Tex.Civ.App., 170 S.W.2d 534, err. ref., the defendant, lessee, sought to avoid liability for rentals under his lease alleging that there was a mutual mistake in that all of the parties to the lease contract believed that the land in question was, and would be located on a road that was to be made a four-lane paved road and would be the main entrance to Camp Bowie. The trial court refused to submit issues on mutual mistake and the appellate court held that there was no error in so refusing. In support of its holding, the appellate court quoted Pomeroy’s Equity Jurisprudence, 3rd Ed., Sec. 855, as follows:

“When parties have entered into a contract or arrangement based upon uncertain or contingent events, purposely as a compromise of doubtful claims arising from them, and where parties have knowingly entered into a speculative contract or transaction, — one in which they intentionally speculated as to the result, — and there is in either case an absence of bad faith, violation of confidence, misrepresentation, concealment, and other inequitable conduct mentioned in a former paragraph, if the facts upon which such agreement or transaction was founded, or the event of the agreement itself, turn out very different from what was expected or anticipated, this error, miscalculation, or disappointment, although relating to matters of fact, and not of law, is not such a mistake, within the meaning of the equitable doctrine, as entitles the disappointed party to any relief either by way of cancelling the contract and rescinding the transaction, or of defense to a suit brought for its enforcement. In such classes of agreements and transactions, the parties are supposed to calculate the chances, and they certainly assume the risks, where there is no element of bad faith, breach of confidence, misrepresentation, culpable concealment, or other like conduct amounting to actual or constructive fraud.”

There is no probative evidence of any fraud committed by Smith which caused plaintiff to believe that his house would be completed and ready for occupancy by Christmas of 1963. In fact, the jury’s finding is to the effect that Smith, too, believed that the house would be so completed at such date.

The erroneous estimate of Smith and the appellee, as to the date at which his house would be completed, is not a mutual mistake of such character as to justify disregarding the written document in settlement and release of plaintiff’s claim under his policy. If such were the law, almost any unliquidated claim, where the full extent of injuries was contingent on future developments, would be impossible of any legally enforceable compromise, settlement and release. Such a holding would be in direct conflict with the policy of the law to the effect that voluntary settlements of disputed claims are to be favored. Gilliam v. Alford, 69 Tex. 267, 6 S.W. 757; State v. Cook, Tex.Civ.App., 407 S.W.2d 876, ref., n. r. e.; Pearce v. Texas Emp. Ins. Ass’n, Tex.Civ.App., 403 S.W.2d 493.

One item of loss covered by the policy and found by the jury to be $99.40 was the value of property which was stolen or mysteriously disappeared from the plaintiff’s premises after the fire. We are of the opinion that such loss was not covered by the language of the settlement and release and that the plaintiff is entitled to recover from the defendant in the amount of that loss.

Our earlier opinion in this case, wherein we held that the judgment of the trial court was affirmed, is withdrawn, and the judgment of the trial court is reversed and judgment is hereby rendered that plaintiff recover $99.40, together with costs in the trial court. Costs of appeal are adjudged against appellee.


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    Bill ST. CLAIR et ux., Appellants, v. The FIRST NATIONAL BANK OF INGLESIDE, Texas, Appellee.
    No. 338.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 30, 1967.
    Toufic Nicolas, of Horkin, Nicolas & Nicolas, Corpus Christi, for appellants.
    Luther E. Jones, Jr., Corpus Christi, Reese D. Wade, of Wade, Wade & Newton, Beeville, for appellee.
   OPINION

SHARPE, Justice.

This appeal is from a summary judgment in favor of appellee, defendant below, that appellants, plaintiffs below, take nothing on a suit for slander.

Appellants assert two points of error as follows:

“The Trial Court erred in sustaining defendant’s motion for summary judgment because:
Point No. 1. The pleadings, affidavits and deposition introduced in evidence show that plaintiffs have a meritorious cause of action about which there are issues of fact.
Point No. 2. The defense of truth asserted by the defendant did not extend to all the defamatory statements uttered by defendant’s Executive Vice-President.”

Appellee’s single reply point is as follows:

“The trial court ruled correctly in entering the appealed-from summary judgment adjudging that appellants take nothing.
A. The claimed slanderous statements were non-defamatory as a matter of law
B. No false imputation was conveyed by the claimed slanderous statements
C. Appellants’ own affidavit testimony as to the element of damages furnished proper basis for the summary judgment.”

The summary judgment record consists of plaintiffs’ original petition, defendant’s first amended original answer, defendant’s first interrogatories, plaintiffs’ answers to such interrogatories, the deposition of Mr. Robert N. Omari, defendant’s motion for summary judgment and affidavit in support of same, plaintiffs’ answer to the motion for summary judgment and supporting affidavit.

The background facts giving rise to this controversy are related in the deposition of Mr. Robert N. Oman in substance as follows: On October 28, 1966 appellant Mrs. Beverly St. Clair along with about eight other ladies came to the First National Bank of Ingleside, Texas and engaged in a conversation with Mr. Oman, its Executive Vice-President and cashier, concerning City politics. At that time there was a controversy relating to a proposed annexation of territory by the City of Ingle-side. Mrs. St. Ciair and the other ladies opposed the annexation. Mr. Oman said that as a citizen he thought the annexation was a good thing but as a member of the bank was neutral. Mr. Oman said the ladies wanted to remove the mayor and city council and wanted Mr. Oman and the merchants of the community to favor such action; that they threatened to boycott all the businesses if they did not get rid of the mayor. Mr. Oman said he thought the ladies were going about the matter in the wrong way. Mrs. St. Clair then said she wanted to withdraw her savings account from the bank. Mr. Oman complied with her request and gave her the money, amounting to about one thousand dollars. Mr. Oman and the ladies then walked together outside of the bank where they continued to discuss politics.

According to appellants, Mr. Oman then made the statements which they allege were slanderous and actionable. Mr. Oman’s version of what was said by him differs from that of appellants as shown by their answers to appellee’s interrogatories. Under summary judgment rules we accept appellants’ version of what Mr. Oman said on such occasion.

Appellants’ petition did not specifically allege the statements made by Mr. Oman on the occasion in question. Paragraph III of appellants’ petition reads as follows:

“III.
“On or about the 28th day of October, 1966, the said defendant, The First National Bank of Ingleside, was open and operating and doing business in its usual and normal course at its location on the corner of Broadway within the city limits of the incorporated City of Ingleside, Texas. At about 4:30 o’clock in the afternoon of such day, the plaintiff, Mrs. Bill St. Clair, was in such Bank transacting business, to-wit: withdrawing funds from her savings account, with Mr. Robert Oman acting in such transaction in his capacity as agent of such Bank, as alleged above. Upon completion of such transaction, Mrs. St. Clair left the Bank and walked down a street about fifty feet away from the Bank. At such time and place, while Mrs. St. Clair was in the company of several other ladies on such public thoroughfare, said Executive Vice-President and General Manager, Mr. Oman, walked out of the front door of the Bank and accosted Mrs. St. Clair in a loud voice from near the door of the Bank. Whereupon, the said Mr. Oman, speaking to Mrs. St. Clair in a loud voice and calling her by name, uttered libelous and slanderous and defamatory statements concerning Mrs. St. Clair and her husband. By such statements, the defendant, The First National Bank of Ingleside, acting by and through the said Mr. Oman, published information concerning the business of the plaintiff, Bill St. Clair, and concerning his credit, which statements were calculated to, and did, affect the plaintiff, Bill St. Clair, injuriously in his business and occupation, and were further calculated to and did, cause extreme humiliation and embarrassment to both plaintiffs.”

Appellants’ petition further alleged in general terms that appellants had suffered special damages, general damages and exemplary damages.

The details of the statements allegedly made by Mr. Oman and the nature of the special damages suffered were furnished by the appellants’ answers to interrogatories hereinafter set out.

Appellee’s interrogatory No. 1 reads as follows:

“1. State the exact words of Mr. Oman claimed by you to have comprised the alleged defamatory statements mentioned in Par. Ill of yo.ur petition.”

Appellants answered the said interrogatory as follows:

“No. 1
Robert Oman, Executive Vice President of the defendant Bank, approached plaintiff Beverly St. Clair, and the following exchange took place:
Mr. Oman: ‘If you want to play rough, we can play rough too. If this is the way you want to play the game, the bank can play this way too, so if you are going to take your money out of the bank, you can just tell Bill to come pick up his notes.’
Beverly St. Clair: ‘Mr. Oman, I told you this was not personal but now you are making it personal.’
Mr. Oman: ‘You made it personal when you walked inside that bank.’
Beverly St. Clair: T believe if you will check your records you will find that Bill does not owe any notes here.’
Mr. Oman: ‘Oh, yes, he does, it is for your kinfolks. Bill co-signed an $80.00 note for your kinfolks. So if you are going to take your money out of the bank, you can just take your notes with it.’ ”

Appellee’s motion for summary judgment was filed on January 18, 1967 and was set for hearing on February 17, 1967. Appellants filed an answer to the motion for summary judgment on February 17, 1967, to which was attached an affidavit of appellant Bill St. Clair dated February 16, 1967. Omitting formal portions, that affidavit reads as follows:

“My name is Bill St. Clair. I am over twenty-one years of age, of sound mind, have never been convicted of any crime or offense and have personal knowledge of the statements made herein.
I signed the $213.00 note filed in this case, with the understanding with Mr. Robert Oman, Executive Vice President of First National Bank of Ingleside, that I was to pay any amount due thereon only if Mr. M. R. St. Clair did not pay the same. Mr. Oman is and was aware that such note was for the use and benefit of M. R. St. Clair and that Bill St. Clair received none of the proceeds. Mr. Oman was and is aware that the installments called for by said note were current on October 28, 1966 and that all payments had been made by M. R. St. Clair.
Further, the remarks of Mr. Robert Oman on the date in question had specific reference to an $80.00 note and were demanding that plaintiffs pay such note, whereas, in truth and in fact, such note had been satisfied just two days prior to Mr. Oman’s slanderous outburst.
Still further, I propose to show that I am Vice President of Inco Steel Products, Inc. and its General Manager for the South Texas area; I am also a substantial stockholder in said corporation; that Inco Steel Products, Inc. is in the general construction business and also franchised for the sale and erection of metal buildings throughout South Texas; that the imprudent and offensive remarks of defendant’s Executive Vice President have caused special injury to the undersigned in his occupation and business, in that such ‘clumsy’ statements were instrumental in this affiant failing to close the transactions with Industrial Water Proofing Company and the Ingleside School Board, which transactions were referred to in the answers to interrogatories on file in this cause.
Lastly, the undersigned contends that Mr. Oman’s statements will tend to injure plaintiffs’ line of credit because of the inference that plaintiffs were delinquent in their notes.”

Appellants say that Mr. Oman’s statements were shown to be false in two essential particulars, i. e., (1) there was no $80.-00 note due, and (2) there were no “notes” to be paid; that is only one note could actually have been involved, and it was not the one referred to by Mr. Oman. Appellants further say that the words spoken by Mr. Oman were susceptible of a defamatory meaning; that is, a third person hearing them might have reasonably believed that Bill St. Clair owed “notes” (more than one) which he was obligated to pay at the time the statements were made, and that he was in default on the same, or at least on one of them. Appellee contends that the statements made by Mr. Oman were non-defamatory as a matter of law.

We will first consider the question of whether Mr. Oman’s words were susceptible of a defamatory meaning. Appellants recognize the rule that defamatory language may be actionable per se, that is, in itself, or may be actionable per quod, that is, only on allegations and proof of special damages. Buck v. Savage, 323 S.W.2d 363 (Tex.Civ.App., Houston, 1959, wr. ref., n. r. e.); McDaniel v. King, 16 S.W.2d 931 (Tex.Civ.App., San Antonio 1929, n. w. h.) ; 36 Tex.Jur.2d, Libel and Slander, Sec. 2, page 280. Appellants say that it is not necessary here for the Court to decide whether the words used by Mr. Oman are actionable per se since they rely upon the theory that such words were defamatory and caused them special damages.

In 36 Tex.Jur.2d, Libel and Slander, Sec. 26, pages 311-313, the following appears:

“In determining whether a particular statement or publication is actionable, its meaning will be ascertained from the language used as commonly understood. The language should be given its plain, ordinary, and natural meaning, the meaning that would be placed on it by the average ordinary person who might read or hear it. It should not be given a strained interpretation in order to attribute a libelous quality, nor an import that it might carry only to a supersensi-tive mind.
Neither the construction placed on the language by the plaintiff, nor what the defendant meant or intended by it, is controlling. The significant inquiry is as to the effect that the publication would have on the mind of the ordinary reader and the construction that he would have put on it. For in defamatory language it is not so much the idea that the speaker or writer intends to convey as what he does in fact convey. It is the effect on the character of the person alleged to be defamed by the utterance that the law considers, and therefore the utterer uses the language at his peril. But this is true only where the language used is susceptible of defamatory meaning.
The same principles of construction used in determining whether language is libelous are also applicable in cases of slander.”

In Great Atlantic & Pacific Tea Co. v. Harris, 75 S.W.2d 974-975 (Tex.Civ.App., Eastland 1934, wr. dism., opinion by Hickman, C. J.) the court said:

“ * * * The question presented by the assignment is that there was no issue to be submitted to a jury because, as a matter of law, the words spoken .were not slanderous. We cannot sustain this contention. In determining whether words are defamatory, they must be interpreted in connection with all the surrounding circumstances in which they were uttered. Moore v. Leverett (Tex.Com.App.) 52 S.W.(2d) 252. The question is: What meaning would be placed upon the language by the ordinary person who might hear it? The law is concerned with the effect which the utterance might have upon the reputation of the person claimed to be defamed by its use. * *

In support of its position that the claimed slanderous statements were not defamatory as a matter of law, appellee places reliance upon the cases of Hirshfield v. Ft. Worth Nat. Bank, 83 Tex. 452, 18 S.W. 743, 15 L.R.A. 639 (1892) and Gartman v. Hedgpeth, 138 Tex. 73, 157 S.W.2d 139, 138 A.L.R. 666 (1941). In Hirshfield, the court held that since the claimed libelous statements were not actionable per se, in the absence of an allegation of special damages a general demurrer (then permissible) was properly sustained to the plaintiff’s petition. In Gartman, the court held that considering the language there involved in the light of the attendant circumstances, that the same would not be construed by the average reader as any reflection on the character and standing of the plaintiff. In our case there is an allegation of special damages and we cannot say that the words used by Mr. Oman are non-defamatory as a matter of law.

We therefore hold that a fact issue was presented in this case concerning the meaning of the words used by Mr. Oman. It was not conclusively established that the defense of truth extended to all of the statements made by him. The fact finder could determine that such words meant that Bill St. Clair was at least in default on one note which was owed to appellee bank. The summary judgment evidence shows that such was not the case, and the statements made by Mr. Oman could have been defamatory, thus precluding summary judgment on that phase of the case.

We next consider the question as to whether a genuine issue of material fact was shown to exist by the summary judgment evidence concerning special damages. As above stated, appellants make it clear in their brief that they do not rely upon the theory that the words spoken by Mr. Oman were actionable per se or that they affected Mr. St. Clair injuriously in his office, business, profession or occupation. Instead, appellants rely upon the theory that the alleged defamatory words caused the appellants to suffer special damages.

Under subdivision C of appellee’s reply point it is contended that “appellants’ own affidavit testimony as to the element of damages furnished proper basis for summary judgment.” Appellee endeavored to ascertain the basis for appellants’ claim of special damage by propounding interrogatory No. 3 reading as follows:

“3. Do you claim there was a relation of cause and effect between the alleged making of such statements and any one or more events believed by you to have produced pecuniary loss to you? If you answer in the affirmative, then describe each such event and state the amount of pecuniary loss you claim resulted therefrom and state your reasons for contending such loss, if any, resulted from occurrence of each such event, if any.”

Appellants’ response to said interrogatory No. 3 was as follows:

“No. 3
Yes. Prior to Mr. Oman’s statements, Bill St. Clair had been negotiating with Industrial Waterproofing Company for the construction of additional plant facilities at a cost of approximately $16,-900.00. No further negotiations have been had since the reflection was made upon plaintiff Bill St. Clair’s credit. A representative of the named concern stated that more time was needed to investigate into the matter in view of the bank official’s remarks.
Also, plaintiff Bill St. Clair’s bid to the Ingleside School Board for the construction of a building at a cost of $11,900.00 was rejected after the incident with Mr. Oman, even though the building proposed by Bill St. Clair was much larger than the one purchased by the Board for essentially the same price.”

Appellee points out that appellants did not answer two parts of interrogatory No. 3, i. e., the part which asked them to state the amount of pecuniary loss they sustained, and the part which in effect asked appellants to state their reasons for contending that such loss, if. any, was caused by the claimed slanderous statements.

With reference to the first portion of appellants’ answer to interrogatory No. 3, and taking the statements made at face value, it appears: (1) that prior to Mr. Oman’s statements Mr. St. Clair had been negotiating with Industrial Water Proofing Company for a construction project, (2) no further negotiations have been had since such statements, and (3) a representative of Industrial had stated that more time was needed to investigate in view of Oman’s remarks. It will be noted that there is no statement by Mr. St. Clair that the contract or project had been lost by him nor of any facts showing that pecuniary loss had actually been suffered. Nor is there a statement by Mr. St Clair as to when, where or to whom the statement by a representative of Industrial was made. At most, there is an inference by Mr. St. Clair that negotiations were delayed because of Mr. Oman’s remarks.

With reference to the second portion of appellants’ answer to interrogatory No. 3, it appears that Mr. St. Clair’s bid to a School Board was rejected even though the building proposed by him was larger than the one purchased by the School Board for essentially the same price. Here again there is no statement by Mr. St. Clair of facts showing a pecuniary loss. Aside from the statement that the bid was rejected after the incident with Mr. Oman, there is no statement of facts showing a connection between the alleged defamatory words and the action of the School Board on Mr. St. Clair’s bid. Nor is there any statement of facts, aside from the size of the building, concerning Mr. St. Clair's bid or other bids. In short, there are no facts stated showing a relation between the alleged defamatory words and the rejection of Mr. St. Clair’s bid.

With reference to Mr. St. Clair’s affidavit in opposition to appellee’s motion for summary judgment, the situation is substantially the same as that involving appellants’ answer to appellee’s interrogatory No. 3. Mr. St. Clair’s affidavit states that Mr. Oman’s statements “were instrumental in this affiant failing to close the transactions” with Industrial and the School Board, and that they “will tend to injure plaintiffs’ line of credit.” Such statements are obviously conclusions unsupported by facts.

In this case appellants have elected to recover on the basis that the words spoken by Mr. Oman are actionable (both false and defamatory) upon pleading and proof of special damages. Appellants argue that in the two instances mentioned they have established a loss of business and that there was a reflection on their line of credit which support their claim of special damages; that they have thus establishd a pri-ma facie case about which there are issues of fact. In appellants’ reply brief the concluding statement is as follows:

“We have alleged that the statements of Mr. Oman caused damage to appellants and the exact amount of such damages should not be the concern of the court at this stage of the proceedings.”

The narrow question presented at this point is whether the summary judgment evidence was legally sufficient to raise an issue as to special damages having been suffered by appellants. The recent decision of our Supreme Court in Crain v. Davis, 417 S.W.2d 53 (Tex.Sup.Ct., June 28, 1967) reiterates the applicable rules concerning •sufficiency of summary judgment affidavits and evidence, as follows:

“We turn now to the sufficiency of Respondents’ motion for summary judgment and the supporting affidavits attached to such motion. It is self-evident that the affidavits which were filed in support of the motion for summary judgment do not meet the requirement of Rule 166-A, Texas Rules of Civil Procedure, that the affidavits shall set forth such facts as would be admissible in evidence. The statements contained in the affidavits are but mere conclusions of the affiants and, therefore, would not be admissible. The facts stated in an affidavit given in support of a motion for summary judgment must be so worded that if the testimony were given from the witness stand during the trial it would be admissible. Statements contained in affidavits offered to support a motion for summary judgment that are but mere conclusions are insufficient to warrant the entry of such a judgment. ‘In ruling on a motion for summary judgment only admissible testimony having probative force is to be considered.’ See Box v. Bates, Sup.Ct. (1961), 162 Tex. 184, 346 S.W.2d 317; McDonald, Texas Civil Practice § 17.26.2; Bates v. Smith, 155 Tex. 443, 289 S.W.2d 215 (1956).”

When we apply the rules stated in Crain v. Davis we must hold that the summary judgment evidence here is not legally sufficient to raise a genuine issue of material fact as to whether appellants have suffered special damages. If the evidence relied upon by appellants had been offered on a jury trial, it would have been legally insufficient to raise the issue of special damages. This holding is strictly aside from the question of the amount of damages. If the summary judgment evidence here had been legally sufficient to raise an issue of liability for some amount of special damages, then summary judgment would not have been proper. Our holding then is based upon the absence of evidence of liability for some damages rather than the amount of same.

We further believe that the following holding of the court in Stafford v. Wilkinson, 157 Tex. 483, 304 S.W.2d 364 (1957) is applicable here.

“Respondents call attention to the rule that all doubts as to the existence of a genuine issue of material fact must be resolved against the party moving for a summary judgment. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Womack v. Allstate Insurance Co. [156] Tex. [467,] 296 S.W.2d 233. They then say that the case has not been fully developed, and that they should not be denied the right to explain the statements in the depositions and letters that were introduced. Under the provisions of Rule 166-A, respondents had an opportunity to explain these matters by affidavits filed before the hearing on the motion for summary judgment. Since they failed to do this or to make any showing of inability to present essential facts by affidavit, the mere possibility that other evidence might be offered on a trial of the case affords no reason for denying the motion for summary judgment.”

The judgment of the trial court is affirmed.


author: LANGDON, Justice.

text:
    TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Josephine HANCOCK et vir, Appellees.
    No. 16862.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 8, 1967.
    Rehearing Denied Jan. 5, 1968.
    McDonald, Sanders, Wynn, Ginsburgr Phillips & Maddox and Atwood McDonald, Fort Worth, for appellant.
    Kelly Jacobs, and L. T. Wilson, Fort Worth, for appellees.
   OPINION

LANGDON, Justice.

This is a workmen’s compensation case. Judgment was rendered for plaintiff upon a. jury verdict of total and permanent incapacity and for the sum of $4,456.82, representing medical bills. A judgment was also rendered in favor of Harris Hospital for $1,291.20. Harris Hospital does not join in this appeal.

The appellant contends the court erred in overruling its motion for judgment notwithstanding the verdict in that there was no evidence or insufficient evidence to support the jury’s finding of permanent disability. More specifically the complaint is that there was no expert testimony in support thereof. Further complaint is made of the court’s submission of the question of medicine, hospital and doctor’s bills in a single issue rather than separate issues as to each item of such expenses, and in failing to submit issues as to whether or not plaintiffs requested defendant to furnish the various items of medical and hospital services in question or gave notice to defendant of any such request.

We affirm.

On November 18, 1964, the appellee Mrs. Josephine Hancock fell to the floor at Harris Hospital, in Fort Worth, where she was employed. She testified that someone helped her up. At that time she did not have any idea she had received any lasting injury. She worked until about 3:00 o’clock that afternoon, the end of her normal working day, and on the two following days, Thursday and Friday. Saturday and Sunday were not working days for her. She was scheduled to start a week vacation on the following Monday, November 23. She entered Harris Hospital as a patient on November 24, and remained there until December 19, during which period she was treated for pneumonia. Harris Hospital bill on this occasion was $1,164.00. Doctor bills were $190.00.

She eventually went back to work on January 11, 1965, and worked for about two weeks. She re-entered Harris Hospital as a patient on March 28, 1965, and remained there until April 22, during which time she underwent an operation relating to the scalenus muscle. She was discharged from the hospital on this occasion on April 22, 1965. Harris Hospital bill for this stay amounted to $864.45.

On February 22, 1966, Mrs. Hancock again re-entered Harris Hospital as a patient, and on April 4 underwent surgery involving a spinal fusion. The Harris Hospital bill on this occasion amounted to $1,-690.55. The bill of Fort Worth Bone and Joint Clinic covering services of Dr. McDonald from January 29, 1965 to date of trial was $1,013.00. There were other items of medical expenses contained in the pleadings including a trial amendment all of which totalled $7,138.54.

Based upon our examination and study of the record as a whole we are of the opinion that there is ample evidence in support of the jury’s finding of permanent disability. The record contains expert testimony as well as non-expert testimony in support of the verdict and the judgment based thereon. Under this record we have no authority to disturb the judgment. Suffice it to say that there was evidence which would have supported a verdict either way and thus presented an open question for the trier of the facts. It was resolved against the defendant. Trinity Universal Insurance Company v. Farley, Tex.Civ.App., 408 S.W.2d 776 (Tyler Civ.App., 1966, no writ hist.); Associated Employers Lloyds v. Self, Tex.Civ.App., 192 S.W.2d 902 (Dallas Civ.App., 1946, ref., n. r. e.); Standard Accident Insurance Company v. Mize, Tex.Civ.App., 378 S.W.2d 686 (Amarillo Civ.App., 1964, no writ hist.).

The record reflects that there was notice of injury to the subscriber; a denial of liability by the insurer and failure of the latter to provide medical service for Mrs. Hancock. The jury found such failure on the part of the defendant to provide medical service and that plaintiff necessarily incurred charges for medical expenses in treatment of her injuries. Great American Indemnity Co. v. Beaupre, Tex.Civ.App., 191 S.W.2d 883 (Dallas Civ.App., 1945, writ ref. n. r. e.); Trinity Universal Insurance Company v. Farley, Tex.Civ.App., 408 S.W.2d 776 (Tyler Civ.App., 1966, no writ hist.); Travelers Insurance Company v. Hernandez (5th Cir. 1960), 276 F.2d 267; United States Fidelity and Guaranty Co. v. Camp, Tex.Civ.App., 367 S.W.2d 952 (Houston Civ.App., 1963, writ ref. n. r. e.); Saint Paul Mercury Indemnity Company v. Tarver, Tex.Civ.App., 272 S.W.2d 795 (Eastland Civ.App., 1954, writ ref. n. r. e.).

Article 8306, Sec. 7, Texas Revised Civil Statutes, provides, “If the association fails to so furnish reasonable medical aid, hospital services, nursing, chiropractic services and medicines as and when needed after notice of the injury to the association or subscriber, the injured employee may provide said medical aid, nursing, hospital services, chiropractic services, and medicines at the cost and expense of the association.”

Article 8309, Sec. 1, Texas Revised Civil Statutes, defines “subscriber” as follows: “ ‘Subscriber’ shall mean any employer who has become a member of the association by paying the required premium; * * *.”

Harris Hospital, Mrs. Hancock’s employer, comes within the definition of a subscriber and it had notice of the injury on the date that it occurred.

Claudia Crooks was Mrs. Hancock’s immediate supervisor at the Harris Hospital; the plaintiff signed an unusual occurrence report in Mrs. Crooks’ presence on the date of the injury. Louis M. Dennis, Director of Personnel at Harris Hospital, a representative or agent for the defendant herein, was also notified in behalf of the defendant.

Under Sec. 7 of Art. 8306, V.A.C.S., supra, the carrier has the responsibility of furnishing all reasonable and necessary medical care for any compensable injury after proper notice thereof has been given. The fact that no express demand was made upon the carrier to furnish such care would not preclude recovery under the facts of this case in which the jury found that the defendant failed to furnish reasonable and necessary medical aid after November 18, 1964, and the defendant has denied liability at all times.

Further with reference to notice, Rule 93, Texas Rules of Civil Procedure, provides in part as follows: “In the trial of any case appealed to the court from the Industrial Accident Board the following, if pleaded, shall be presumed to be true as pleaded and have been done and filed in legal time and manner, unless denied by verified pleadings:

“(1) Notice of injury. * * *”

There was no denial of notice by verified pleadings apparent in the record.

The appellant raised two general objections to the claim for reimbursement of medical expenses. The first was that appellees had made no demand upon it to furnish any of the medical services for which recovery was sought and that it was thereby deprived of any opportunity to provide such services. The second was that the global submission of medical expenses by the court deprived appellant of any opportunity to obtain jury findings that any particular portion of such medical expenses was not incurred by reason of the fall. The appellant argues that the judgment for medical services by reason of the language of the verdict is founded simply upon its failure to furnish medical aid and that there is neither pleading, evidence nor verdict of any demand by appellant for, nor any refusal by, it to furnish medical aid. The appellant argues further that throughout the objections it expressly pointed out that under Rule 274, T.R.C.P., it was not required to submit written special issues concerning the matters complained of because all of its objections were aimed at the court’s failure to submit issues required to support the appellees’ case.

We disagree with this contention. Certainly any issues as to failure of demand or request for medical services and appellant’s response to such demand would be defensive in nature. Superior Insurance Company v. Burnes, Tex.Civ.App., 278 S.W.2d 934, 939 (Galveston Civ.App., 1955, writ ref. n. r. e.).

In our opinion the trial court did not err in inquiring in a single issue as to the reasonable charge for the medical service, hospital service and medicines received by Mrs. Hancock for the treatment of her injuries. See Amberson v. Woodul, Tex.Civ.App., 108 S.W.2d 852 (San Antonio Civ.App., 1937, writ dismissed); International-Great Northern R. Co. v. King, Tex.Civ.App., 41 S.W.2d 234 (Tex.Comm.App., 1931); Berwald v. Turner, Tex.Civ.App., 52 S.W.2d 112, 114 (El Paso Civ.App., 1932, writ refused); Bull-Stewart Equipment. Co. v. Sparra, Tex.Civ.App., 109 S.W.2d 784 (Galveston Civ.App., 1937, writ dismissed); Foster v. Woodward, Tex.Civ.App., 134 S.W.2d 417 (Beaumont Civ.App., 1939, writ refused).

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


author: HUGHES, Justice.

text:
    Jack EZON, Appellant, v. FAULKNER CONSTRUCTION COMPANY et al., Appellees.
    No. 11549.
    Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1967.

      Samuel M. Amster, Byrd, Davis, Eisen-herg & Clark, Jack Eisenberg, Maloney & Black, Thomas Black, Austin, for appellant.
    Phil Mockford, Austin, Crenshaw, Du--pree & Milam, William R. Moss, Lubbock, Graves, Dougherty, Gee, Hearon, Moody & Garwood, Thomas G. Gee, Austin, for ap-pellees.
   HUGHES, Justice.

Faulkner Construction Company, a domestic corporation, hereinafter called “Faulkner,” entered into written contracts, •dated September 9, 1963, with Jack Ezon, appellant, for the construction of two apartment buildings in Austin, Texas, on property owned by Ezon, which apartment buildings are known as the Summit Apartments and the Nob Hill Apartments. Faulkner, not having been paid the total contract price for the construction of the Nob Hill Apartments, sued Ezon for the balance due which he alleged to be in its current petition at the time of trial as “$52,867.60' with lawful offsets * * * ” or “$9,405.05.”

The petition of Faulkner was sworn to as required for a suit on a sworn account. The petition also sought recovery upon quantum meruit and for interest, attorney’s fees, costs and for items of damage which were subsequently abandoned.

Ezon’s trial answer was a general denial. He also had filed a cross action against Faulkner, the surety on his performance bond, National Surety Corporation, and W. R. Jenkins and W. B. Hoff, architects, and Gary Pools, Inc., wherein he sought damages due to poor workmanship in constructing the two apartment buildings (Summit and Nob Hill) and to deviations from the plans and specifications as contracted, and for loss of rentals due to delay in completing the apartment buildings.

The architects, Jenkins and Hoff, answered by denying that they had breached any duty owed Ezon and by pleading that Ezon had waived “by his words and actions” any cause of action which he may have had against them. Jenkins and Hoff also filed a cross action against Ezon for $1,287.25 for fees and expenses alleged to be unpaid.

Gary Pools, Inc., filed a cross action against Ezon but its subject matter was settled prior to judgment and is not involved in this appeal.

Trial was non jury after which judgment was rendered that Ezon take nothing by his cross action and that Faulkner recover of Ezon $26,011.69, including $15,000.00 attorney’s fees, all with interest, less a credit of $42.35. Jenkins and Hoff recovered the amount sought in their cross action. All costs were adjudged against Ezon.

Findings of fact and conclusions of law were filed by the trial judge.

Ezon’s first and second points are that the trial court erred in awarding $15,-000.00 in attorney’s fees. These points are sustained.

The contract between the parties did not provide for the payment of attorney’s fees to either party.

Ezon took possession of both apartment buildings and has since been renting the apartments. It is not disputed but that the apartment buildings were substantially completed.

This is not a case either for application of the rules relating to suits on sworn accounts or suits in quantum meruit. Faulkner’s suit, as disclosed by the pleadings and the evidence, is a suit for breach of a written contract to pay for the construction of a building in accordance with the terms of the contract.

In Van Zandt v. Fort Worth Press, 359 S.W.2d 893, Tex.Sup. (1962) the Court stated:

“Respondent’s claim is not founded upon a 'sworn account or accounts’ of transactions in which there were sales on one side and purchases on the other, whereby title to personal property passed from respondent to petitioners. Therefore, it is not a claim ‘upon a sworn account’ within the meaning of the statute.”

The statute referred to was Art. 2226, Vernon’s Tex.Civ.St., providing for the recovery of attorney’s fees in suits on sworn accounts, the statute upon which Faulkner relies here.

There is nothing in the pleadings or evidence to bring this case within the definition of a sworn account as stated by the Supreme Court.

It is immaterial that the petition of Faulkner was sworn to so as to conform to the requirements for a suit on a sworn account. Morgan v. Morgan, 406 S.W.2d 347, Tex.Civ.App. San Antonio, 1966, no writ.

It is also of no consequence that Faulkner declared upon a quantum meruit. The applicable rule is stated in Woodard v. Southwest States, Inc., 384 S.W.2d 674, Tex.Sup., 1964, as follows:

“Recovery on an express contract and on quantum meruit are inconsistent. Where there exists a valid express contract covering the subject matter, there can be no implied contract.”

The trial court did not indicate whether it based its judgment upon the theory of sworn account, contract or quantum meruit. If there is room for any election to be made by the Court, which we hold untenable, we believe the judgment should be upon the contract in order not to subject Ezon to the penalty of attorney’s fees which he did not contract to pay and which cannot be imposed for breach of a building contract such as we have here. Latham v. Dement, 409 S.W.2d 429, Tex.Civ.App. Dallas, 1966, writ ref. n. r. e., and authorities therein cited.

Ezon’s third point is that the award of $15,000.00 attorney’s fees is excessive. This point becomes moot in view of our disposition of the first two points.

Ezon’s fourth point is that the trial court erred in failing to hold that he and Faulkner had agreed that the laundry room was to be built in accordance with a soil report and in not allowing him to recover damages for failure to so build such room, it being asserted that the overwhelming weight of the evidence called for such finding and judgment.

Ezon’s fifth point, briefed with point four, is that judgment should also have been rendered against the architects Jenkins and Hoff for damages resulting from the faulty construction of the laundry room because the overwhelming weight of the evidence is that they undertook to see that Nob Hill was built in accordance with the soil report and this was not done as to the laundry room.

In May, 1962, prior to the beginning of construction of the Nob Hill, a “foundation investigation” was conducted by F. G. Bryant & Associates, Inc. “for Jenkins & Hoff, architects.” A basic recommendation made in this report was that “all floor systems including basement slabs should be structurally designed free of grade with at least 6 inches of clearance.”

The result of failure to comply with this recommendation, as described by Col. E. C. Adams, a soil and construction engineer, is that “the swelling motion and the swelling pressures will probably overcome the loads that are placed on it, and the building will be moved upwards, probably different amounts in different locations, to cause damage.”

This soil report was conducted at the suggestion of Jenkins & Hoff and Hoff agrees that it was his firm’s duty to see that it was complied with. It was conducted at Ezon’s expense in the amount of $1,-408.00.

In September and October of 1966, Col. Adams made a conditions survey of the Nob Hill to determine if the earlier soil report had been complied with. Findings of this survey were that most of the foundation had been supported in accordance with the report. However, in one respect the foundation was constructed on grade contrary to the report’s recommendations. This was the laundry room area which Col. Adams found to be “supported directly on the soil.” The walls of the laundry room area extend “upward and abutted directly on the main frame, you might say, of the other structure.”

Concerning this condition the survey comments:

“It is our opinion that the cracks and movements in the structure in the immediate vicinity of the laundry room, including certain interior damage to apartments above and to the north thereof, has been brought about as follows. The laundry room and nearby vending machine recess structure are based on a soil supported slab which is subject to movement with moisture changes in the soils, and the walls of the structures are rigidly abutted at their tops to the concrete floor and framing system. This floor and framing system is in turn integral with the column and foundation pier system which supports the main superstructure and is anchored at depth by belled piers against upward movement. The aforementioned soil supported slab has moved upward from swelling action in the soil and transmitted forces through the walls sufficient to have caused minor cracking in the floor and framing system adjacent to and above the laundry room area.”

The following recommendation was made:

“An indicated corrective action would be to remove at least a 3 inch section of the laundry room and vending machine recess walls at the top, and to replace this removed section with a nonrigid treatment for weatherproofing and appearance.”

Walter L. Snowden, consulting engineer who prepared the May, 1962, soil report for Frank Bryant & Associates, and who appeared as a witness for Faulkner, agreed that his recommendation was not followed in the laundry room area and “that as a result of that, the laundry room area has tilted some, and forced the walls of the laundry room area up against the second floor.” His recommended correction was basically the same as that of Col. Adams.

Claude Pendley, an architect whose expert qualifications were unquestioned, testified that the reasonable and necessary cost of freeing the upper structure from the laundry room walls and repairing the cracks caused by the movement would be $500.00. This estimate was adopted by the trial judge. The trial judge also found that “the laundry room was built on the surface contrary to the soil report, but I do not find that the parties agreed or made a part of their contract that this recommendation would be complied with.”

We overrule this point. We are unable to find any evidence that Faulkner knew of the soil report or that he undertook to build the apartments in accordance with it. We find no evidence that the large piers recommended in the soil report for support of the apartment buildings were recommended for support of the laundry room or that the parties agreed for or even contemplated such support. The laundry room was a small room 11' x 11' located under the apartment building proper and between the piers supporting it. The laundry room is relatively independent of the main structure although its walls are attached to the apartment building.

Ezon does not contend that the laundry room was not built by Faulkner in accordance with the plans and specifications but only that it was not built in accordance with the soil report. This report required piers for the building to be twenty six feet deep, eighteen inches in diameter and bearing 15,000 pounds per square foot. The weight of the laundry room is not shown but that it should be supported by piers of the type indicated would be unreasonable.

A structural engineer felt that the proper way to build this laundry room was on grade using a concrete slab. The fact that the building was small, was surrounded by paving and was under and protected by the apartment building were factors entering into the manner in which the laundry room was constructed.

The trial court found that the laundry room was constructed in accordance with the agreement of the parties and the plans and specifications. We find no evidence to the contrary.

We are also unable to find any evidence that the architects undertook to see that the laundry room was built in accordance with the soil report, or that they had any duty in this respect.

Ezon’s sixth point is that the trial court erred in not granting him recovery against Faulkner and the architects for defective roofing on the apartment buildings since all or at least the overwhelming weight of the evidence required such judgment.

Mr. Claude Pendley, an architect, testified:

“Q Mr. Pendley, have you had an opportunity to go out again and inspect the roof on the Nob Hill that you were discussing yesterday?
A Yes, I was out there within the last three or four days. I have kind of lost track since I have been down here. I think it was three days ago.
Q Well, were you out there this morning?
A Yes, I was this morning.
Q And exactly, pinpoint exactly what portion of the room you are talking about.
A I was on the northernmost section, because this would be the area from the masonary firewall that runs through the structure from that point on north.
Q All right, sir, and in what condition did you find that roof to be in?
A A greater portion of that area of the roof has moisture under it. Moisture— I should correct that and say moisture vapor that has blistered up the roof. Now, this vapor is detrimental to the roof. I mean, as soon as very hot weather gets to this, these bubbles are going to expand in size and probably will cause leaks, if they have not caused leaks already.
Q Do you now what would be necessary to correct this situation?
A To remove that area.
Q Do you have any knowledge or any opinion as to what the reasonable cost of that would be?
A I don’t have the area of it. I know that it would cost about twenty-five dollars a square to recover this area.
Q Can you estimate the area that is involved ?
A Well, without looking at the drawings, I would say between fifteen and twenty squares.
Q Which, if it was twenty squares, it would be what? Five hundred dollars? Is that correct?
A That is correct.”

Joe Ezon, son of Jack Ezon, who has lived in the Nob Hill since it was completed, testified that the roof on this section of the Nob Hill was leaking at the beginning of occupancy and that “we always had trouble with that section.” He also testified that he had called Faulkner on numerous occasions about the roof and that Faulkner either ignored his calls or failed to correct the difficulty.’

Joe Ezon also testified from personal observation that the roofs on both apartments were installed in the rain.

Mrs. Irene Turner, who has been manager of the Summit Apartments since April, 1965, testified that a portion of the roof on those apartments began leaking in April, 1965, and that, despite repeated requests, Mr. Faulkner expressly refused to do anything about it. Finally, the services of a contractor named Walt Disney were obtained and “we had to have a whole new roof put on apartment 101, both levels, and the roof repaired on 302.” The cost of this repair to Ezon was $168.25 paid on May 31, 1965, to Mr. Disney, and $528.93 was paid to Central Sales Company on various occasions for repairs to the roof.

The condition of the roof as testified to by Mr. Pendley was shown to have been on February 20, 1967, about three years after the roof was installed. That the roof had only a two year warranty is shown by the evidence.

The roofing contractor testified as follows:

“Q I will ask you, Sir, with reference to applying roofs, do you ever put roofs on in the rain?
A Well, sometimes you put a shingle roof on. Sometimes you dry in what we call ‘drying in.’ It is nailing your first course of felt on to a wooden deck. Sometimes you do that when it is raining. In other words, if they are decking late and it starts to rain, lots of time you go out and cover it up with your felt, but you do not mop your asphalt during wet weather.
Q Is that in the roofing business just something that is not done?
A Yes, Sir. Trying to use asphalt to a wet roof is like dropping water into a frying pan of hot grease; it will not stick. It just spatters.
Q So you have never done that?
A No, Sir.
Q This was not done out on the Nob Hill?
A No, Sir.
Q It was not done on the Summit job?
A No, Sir.
Q And are you sure of that?
A Yes, Sir.”

There is evidence that Faulkner or the roofing contractor answered all calls complaining about the roofs on the buildings.

The complaints at the Summit, according to Mrs. Irene Turner, the manager there, began after she came there in April of 1965. She testified as to certain repairs. Her testimony and that of Mrs. Ezon conflict. Mrs. Turner said the leaks were roof leaks and Mrs. Ezon testified that the leaks were due to blowing rain, blowing in under the walkways and soaking through the walls. She further testified that a Mr. Walt Disney waterproofed these walls.

Further, it was shown that after possession of the Summit by the Ezons, someone had placed a louver in the wall of Apartment 101, the apartment most complained about. It was uncontroverted that the louver was improperly placed with its slot open to the side rather than down, and a blowing rain would blow in.

The evidence is that there was a condensate line leak in Apartment 101, as well. This was repaired by Mr. Wattinger.

There was also another condensate leak at the Summit where a tenant had pushed water skis into a closet and moved the drain pan. Wattinger also corrected this condition.

A Mr. Walt Disney did repairs at the Summit, but he did not testify.

The leaks complained of at the Summit Apartments were in the area of Apartments 102, 202 and 302 (each being over the other) and Apartment 101. These did not appear for over a year after occupancy. The leaks have been stopped by repairs by Mr. Walt Disney perhaps by waterproofing the wall or by mashing in the louvers. There was no evidence of any actual roof leaks.

There is no proof whatsoever as to the cause of the leaks except that the water came through the walls, the louver or the condensate line leak. The repair charges are not shown to be reasonable and necessary or due to faulty or deficient work by Mr. Drury or Mr. Faulkner.

The trial court was unable to find from a preponderance of the evidence defects in the roofing or the amount of damages sustained therefrom.

We concur in these findings. The evidence discloses other sources of water damage than defective roofing. Also, the evidence as to damage is insufficient in that the reasonableness of the charges is not shown.

We cannot say that these findings of the trial judge are so against the great weight of the evidence as to be clearly wrong and manifestly unjust. Point six is overruled.

Ezon’s point seven is that the trial court erred in not awarding recovery against Ezon and the architects for the reasonable cost of repairing and replacing the asphalt at Nob Hill because the evidence or at least the overwhelming weight of the evidence is that it was not installed in accordance with the plans or specifications or in a workmanlike manner.

Architect Pendley made the following comments about the asphalt on the Nob Hill Apartment:

“Asphalt drive and parking area. There is more than reasonable question about the compaction of the subbase and flexible base materials. In the short period of time since the paving was done certain base failures have occurred. Item 2.04 calls for 95% maximum density as determined by proctor method. The Contractor should be able to furnish a testing laboratory’s report of a proctor method test showing that the specification was complied with. If there is no report then the specification has not been complied with because the density has not been determined by the proctor method. The same could be said for 100% maximum density of flexible base. A 100% maximum density can be assumed but not established without a test.”

No proctor test was made and none was called for by the plans and specifications. However it was shown that Faulkner and his subcontractor were qualified by education and experience to determine that the specifications as to percentage of compaction were met without a proctor test.

Mr. William T. Morgan, the subcontractor who did the asphalt work, testified that Faulkner told him there was difficulty with the asphalt.

The trial court found that the asphalt at Nob Hill did fail in 1964 but that this failure was “due to some kind of soil problem.”

The soil survey, made in 1962, did not show any underground water.

The evidence shows that there was some deviation from the plans and specifications in that the clearing between the surface of the pavement and subsurface plumbing was reduced. These changes were made, according to the testimony of Mr. Harold Oberg, an architect associated with Jenkins and Hoff, to allow better drainage off the asphalt paving which was necessitated by the laying of additional concrete on what is called the “south parking lot.” Mr. Oberg was of the opinion that the asphalt problem was caused by wet subsoil.

When the soil survey was made in 1962, no water was encountered. It is shown, however, that prior to the time this asphalt was laid the City of Austin had a water problem in connection with work being done on adjoining Longview Street. The City installed a “french drain” which solved the problem. Installation of french drains to control subsoil moisture is very expensive, and to have installed one would not have been consistent with the low cost theme of this construction.

There was no asphalt failure for four or five months after it was laid and not until abnormal heavy Fall rains fell.

It is also shown that the same paving requirements made at Nob Hill were made at the Summit which has had no subsoil problems and no asphalt problems.

The evidence shows that many changes in the drainage plan at Nob Hill were made by Ezon after taking possession. They included mortaring a rip rap wall, building a concrete wall to hold dirt, building flower beds and flattening the drainage grade along the sides of the building, all of which trapped water, forced it underground and beneath the asphalt and into the subsoil. When this occurs, as Mr. Pendley testified, “it (the water) can tear that asphalt up something terrible, by itself.”

We have concluded that the findings of the trial court, under review here, are not without probative evidence to support them, and that they are not so against the great weight of the evidence as to be clearly wrong and manifestly unjust. We overrule point seven.

Ezon’s point eight is that the trial court erred in denying him judgment agaipst Faulkner and the architects for damages resulting from their failure to provide proper drainage in each apartment building because there was no evidence or at least the overwhelming weight of the evidence is that such drainage was not provided.

The specifications for each project require that the contractor “allow no low spots for water to collect in and provide good drainage of water away from buildings.”

With respect to the Nob Hill, Mr. Pendley noted that such drainage “was not accomplished in two areas on east side of building” and .stated that the reasonable and necessary cost of correction would be $300.-00.

Soil Engineer Walter Snowden, who appeared as a witness for Faulkner, testified that he was on the premises right after construction in 1964, and that his opinion as to the east side of the Nob Hill was, “I don’t think that there was sufficient drainage at that time, no sir.”

This inspection by Mr. Snowden was made after changes were effected by Ezon, as shown post, which affected the drainage problem.

The east side of the Summit Apartments was described by Mr. Pendley as “a morass which overflows on to patio slabs.” He estimated the reasonable and necessary cost of correcting this situation at $500.00. He testified that this area was “muddy and wet * * * because it was too flat to drain the water out.”

A serious problem at the Summit is the fact that all the water splashing from the swimming pool and the entire courtyard area drains on to the side walk of the west side of the apartment. Mrs. Turner, manager of the Summit Apartments, stated that on days that it rains “the water stands for days on end * * * in that section.” It gets as deep as “about an inch or so in the middle portion of the sidewalk.” Mr. Pendley testified that the reasonable and necessary cost of providing adequate drainage in this area as required by the plans and specifications would be $5,400.00.

Faulkner at one time made efforts to provide a proper slope on this sidewalk area but Mr. Pendley found “by the use of a level, there are low spots immediately in front of the entrances to three of the apartments on that ground floor.”

After completion of the apartments, Ezon made changes in the drainage plans.

On the east side of the Nob Hill, Ezon put in flower beds with metal strips, “flattening” the ground and changing the valley four feet to five out from the building that had been built there to carry off the water, and trapping water against the building and allowing it to go under it. Further, the wall, described in the record, was placed by Ezon trapping water and allowing it to go underground into the subbase below the asphalt and the building. The rip rap wall, described in the record, was mortared up. No weep holes were left to allow the water to go through. Afterwards, it would not allow water to flow through it, but trapped it and forced it underground below the laundry room and the asphalt, as testified by Pendley, Engineer Snowden and Faulkner.

There were other changes by putting boards and car stops on the asphalt which trapped water and held it on the asphalt. It was undisputed that the grades at the projects were set by instruments (transits) and not by guess.

The elevation changes at Nob Hill were dictated by Mr. Oberg or done by the Ez-ons after construction.

There is evidence that adequate drainage was provided on the east side of the Nob Hill as per the plans and specifications, if the Ezon changes had not been made and that if all the conditions had remained as reported, there would have been no drainage problems.

Gutters at the Summit Apartments were added to assist in drainage, without extra cost to the Ezons. As to the east side of the Summit Apartments, Mr. Pendley complained of this being a wet area.

The evidence shows that there was a flower bed wall built by the Ezons up over the south end of this area, preventing water drainage from the area and that, even so, after a heavy rain, it was only “wet” with “no water standing.”

The drainage from the area around the swimming pool does go down the sidewalk to the west side of the apartment. It was planned this way.

The elevation changes at the Summit were approved by Ezon prior to their being done. The Summit walk, said not to have enough slope, was actually torn out and replaced by Mr. Faulkner at the request of Mr. Oberg. After the change, the evidence is there was sufficient drainage.

There is evidence that the standing water referred to by Mrs. Turner was more of a “damp spot” than a “puddle,” just one hour after a heavy rain.

We sustain the finding of the trial court that inadequate drainage was not shown to exist. There is probative evidence supporting this finding and we do not find it to be so against the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust. Point eight is overruled.

Ezon’s ninth and tenth points, jointly briefed, are that the trial court erred in failing to award him damages in the form of lost rentals for the failure of Faulkner to complete the buildings on time and in failing to find the amount of lost rentals and in this connection in charging Ezon with the burden of proving the cost of operation of the apartments.

The contract for the Summit Apartments provides for completion by January 15, 1964, and the Nob Hill contract provides for completion on February 1, 1964. The Summit contract provides, “If not finished by February 1, 1964, the contractor agrees to pay the interest on the interim financing thereafter,” and the Nob Hill contract contains the same provision, “If not finished by March 1, 1964.”

The District Court found that Nob Hill Apartments were completed on June 4, 1964, that eight units of the Summit Apartments were completed on February 18, 1964, and that the remaining seven units of the Summit Apartments were completed on March 28, 1964.

Mrs. Ezon testified that ordinarily she collects about $2,600.00 a month from the Summit Apartments and at least $5,000.00 a month from the Nob Hill Apartments.

Mrs. Ezon also testified that since the apartments are for University students it is necessary to rent them at the beginning of semesters or otherwise it is difficult or impossible to rent them during a semester. Thus, if an apartment was not ready by February 1st or May 1st, it would likely remain unoccupied until the beginning of the next University semester. The District Court found that Faulkner was entitled to a reasonable extension of thirty days time on account of delays, which means that the Summit should have been completed by February 15th and the Nob Hill should have been completed by March 1st. This extension was allowed by the architect, over Ezon’s objection, pursuant to a conference at which only Faulkner was represented by counsel.

According to the testimony of Mrs. Ezon, the rentals lost by Ezon because of the failure of Faulkner to complete the buildings in time, even taking into account the thirty-day extension granted by the architects, amount to $5,605.29 on the Summit ($7,800.00 for March, April and May less $2,194.71 collected) and $30,000.00 for the Nob Hill ($5,000.00 for March through August).

The District Court was requested to make findings with respect to Ezon’s lost rentals but declined to do so because “I find no basis for determining cost of operation of the apartments and therefore no way in which a proper figure can be made as to the lost rental.”

There was a liquidated damages clause in the contract reading as follows:

“Article 2. TIME OF COMPLETION
The work to be performed under the Contract shall be commenced within ten days of the date of this agreement and shall be substantially completed February 1, 1964.
(Here insert stipulation as to liquidated damages, if any.) * * '*
2. If not finished by March 1, 1964, the contractor agrees to pay the interest on the interim financing — thereafter.”
Nob Hill contract (Ex. Vol. IX, PX 1) ; Summit contract — identical except for beginning date of liquidated damages is February 1, 1964 (Ex. Vol. VIII, CPX 41).

The trial court found that Faulkner and Ezon agreed in the Nob Hill contract that after March 1, 1964, Faulkner would pay as liquidated damages the interest on the interim financing until completion, and that such damages were a reasonable forecast of just compensation for the harm caused by the delay in completion.

The trial court further found that due to delays caused by Ezon on Nob Hill, a thirty day extension of time was proper and therefore, the liquidated damages would begin on April 1, 1964.

The trial court found the same agreement as to liquidated damages on the Summit Apartments except February 15, 1964 was the beginning date for liquidated damages— interest on interim financing until completion.

The trial court further found that at completion and delivery of the last seven units of Summit, that Ezon paid Faulkner the entire contract price less the interest on the interim financing as liquidated damages for late completion, which interest was retained by Jack Ezon as liquidated damages under the contract.

The trial court found eight units of the Summit were completed, delivered to and accepted and occupied by Ezon on February 18, 1964, and that Ezon, acting through his duly authorized agent, Mrs. Jack Ezon, executed a written acceptance of those units and a release of any and all claims that he might have against Faulkner Construction Company arising out of the construction of said units, and that the remaining seven units of the Summit Apartments were completed on March 28, 1964, and such units were delivered to and accepted and occupied by Jack Ezon on that date.

The trial court granted judgment for Ezon for the interest on the interim financing as liquidated damages against Faulkner.

In the release of the first eight units of the Summit delivered to Ezon, such release being executed by his agent, Mrs. Jack Ezon, it says, “ * * * your liability for eight-fifteenths of the cost of interim financing of this job ceased * *

Ezon accepted the interest on the interim financing when the Summit was closed.

Ezon cites no authorities to support his contention that Faulkner had the burden of proving the net rentals, merely saying that, “This burden was erroneously placed since in computing the damages the cost of operation would amount to an offset against lost rentals and the burden of proof thereon was on Faulkner.”

The rule to be applied is stated in Vol. 17, Tex.Jur.2d, Damages, Sec. 229, p. 290 as follows:

“In order to recover for the loss of profits the plaintiff must furnish evidence from which the jury can determine the net amount of the loss with reasonable accuracy. And he should present evidence to show such items as gross amount of sales before and after the wrongful act, availability of markets and potential customers, sums spent in preparation, percentage of profits on the sales, and any other factor that would have gone into the making up of plaintiff’s profits. And in order that the true net loss be determined it is necessary that evidence be presented to show those items of expense that were made unnecessary by the wrongful act, and such matter as effected a minimization of the loss.”

We followed this rule in Wade v. Southwestern Bell Telephone Company, Tex.Civ.App., 352 S.W.2d 460, 92 A.L.R.2d 913, no writ, 1961.

Since Ezon does not contend that the evidence is sufficient to show what the anticipated net rentals should 'have been, we will not recite the evidence in this respect.

Because it is our opinion that Ezon has failed to discharge the duty cast on him of proving the net anticipated rentals as a basis for recovery of damages for delay in completing these buildings, we hold for this- reason that these points do not reflect error and hence we will not discuss the effect of the liquidated damages clause in the contract. Points nine and ten are overruled.

Ezon’s point eleven is that the trial court erred in failing to award him judgment against Faulkner and the architects for failure to install dishwashers in the Nob Hill Apartments.

No dishwashers were installed in the Nob Hill Apartments although they were installed in the Summit Apartments. The drawings for the Nob Hill Apartments show dishwashers although the original specifications for Nob Hill do not call for them. An addenda to such specifications provides that the contractor is required to furnish “only the appliances listed.”

The specifications for Nob Hill contain this provision, “Where a conflict exists between standards, specifications, codes, ordinances, and plans, the most stringent requirement shall apply.”

The trial court found that according to the plans, specifications and addendum, dishwashers were not to be furnished by Faulkner.

The addendum amended the original plans as well as the specifications as is shown by the following quotation from it:

“The following items hereby became effective and shall be considered a part of the original plans and specifications.”

Below this paragraph was the following paragraph relating to kitchen appliances “Add: This contractor may have the option to furnish either electric or gas kitchen appliances and will furnish only the appliances listed.”

Since dishwashers were not listed in the original specifications nor in the addendum, Faulkner was not obliged to furnish them. Any inconsistency between or ambiguity in the original plans and specifications was eliminated by the addendum which amended them. Point eleven is overuled.

Ezon’s twelfth point is that the trial court erred in denying him judgment against Faulkner and the architects for damages resulting from the unworkman-like installation of the air conditioning because all the evidence or at least the overwhelming weight of the evidence established the poor installation of the air conditioning.

Mr. M. L. Smitty, an air conditioning technician, testified that he had done work on the air conditioners such as changing compressors and condensing fan motors; that he had changed five or six compressors and he testified that in his opinion all of the compressors he had replaced “except one, was gone out from lack of refrigerant” because “the compressor lines got together and rubbed a hold in it.” He stated that the reason for this was that “the copper tubing was made in a looped circle and left either partially supported or unsupported.” He testified that this condition exists in both apartments.

He further testified that unless something is done about this condition “other compressors will continue to go out.”

Faulkner answers this point by contending that the pleadings do not support a recovery under this point and the testimony of Mr. Smitty. The pleading complaints as to air conditioning were limited to insufficient insulation on the copper lines and leaks in condensate lines, as to which the evidence shows have been corrected.

We have examined the pleadings and do not find allegations authorizing recovery for the items testified to by Mr. Smitty. Ezon has filed two reply briefs to Faulkner’s brief and has made no effort to sustain the adequacy of the pleadings to support the recovery here sought. We overrule point twelve.

Ezon’s point thirteen is that the trial court erred in not awarding him judgment against Faulkner and the architects for the failure to provide a mechanical room at Nob Hill because such room is required by the drawings and all or at least the overwhelming weight of the evidence supported such a judgment.

A mechanical room of approximately 100 square feet was called for by the Nob Hill plans. It was not constructed.

The trial court found that a mechanical room was not required to be provided for the reason that a water chill water refrigeration system was not installed.

The uncontradicted testimony of Faulkner on this point is:

“Q * * * at the time that the Nob Hill Apartments and the Addenda was prepared, what option was given to the contractor therein, so far as the type of air conditioning system to use ?
A The option was given to install a chill water, two pipe chill water system or individual forced air units.
Q Now, when the chill water system, would you tell us how that is set up and how it is done, and with the other, how it is done?
A Well, with a chill water system, you have what we normally call a chiller, which makes the cold water, and it is pumped to the individual apartments, and at the individual apartments, you have what is called a fan coil unit, which is a fan that blows over the cold coils, and air conditions the apartment. In the wintertime, it is just reversed; it pumps hot water through the system.
Q And what type system is in the project?
A The individual forced air system.
Q. All right, there was a mechanical room shown on the plans and specifications. What was the purpose of this mechanical room?
A The sole purpose of this mechanical room was to house the chiller.
Q All right, sir, was this mechanical room built ?
A No, sir.
Q Under the plans and specifications, if you did not use the chill water system, would there have been any use for the mechanical room, other than the chill water system?
A No, sir.
Q With reference to this particular item, and even though it was not, this system was not put in, did Mr. Ezon come to see you, or Mrs. Ezon, and talk to you about this mechanical room ?
A Yes, sir, they did.
Q And approximately when was that ?
A I am going to say probably in March or April.
Q And who was this that talked to you about that ?
A I believe it was Mr. Ezon.
Q All, right, would you just tell us, please, sir, what the nature of the conversation was, and what took place at that time?
A Well, he kept asking me if I was going to build this particular room, and I told him, no, sir, that it was a mechanical room for the single purpose of housing the chiller, and he told me that he wanted to use it for a storage room, and of course, I said, Well, under the Addenda, it gave the contractor the choice of which air conditioning system that he was to use.’
I later offered to build a like amount of area adjacent to the existing laundry room, but during this conversation, he said that he didn’t know whether he wanted it there, or not, and I said, ‘Mr. Ezon, I have to have the decision now,’ and he wouldn’t give it to me, so I withdrew the offer.”
Point thirteen is overruled.

Ezon’s point fourteen is that the trial court erred in not awarding him judgment against Faulkner and the architects for damages resulting from the poor workmanship in the construction of the apartments for the reason that all the evidence or at least the overwhelming weight of the evidence showed that the apartments were not constructed in a workmanlike manner.

Faulkner replies to this point by saying it is too general. The point is quite general and does not direct us to any specific error upon which Ezon relies. Rule 418, Texas Rules of Civil Procedure. Nevertheless, we have considered the point. There is evidence of poor workmanship, and there is evidence that the apartments were built in a good and workmanlike manner.

Mr. Claude Pendley testified there was poor workmanship in carpentry, framing and blocking at the Summit, painting and-installation of railings. There is also evidence of water leakage and shoddy mill work.

The architect, Mr. Oberg, testified:

'“Q In your inspection of the job, Mr. Oberg, did you find that as a general rule, was there substantial conformity with this •set of plans and specifications, so far as the carpentry work was concerned, the •miters the nail holes, and things of this nature ?
A In my opinion, yes.
Q Also, in checking the job with reference to the painting and the plumbing, did you find the same condition to be present ?
A I did.
Q At the time that you went back after submitting your punch list and reviewed it on final inspection, at that time, did you feel that the job was substantially completed according to the plans and specifications ?
A I did.
Q And did you also feel that final payment was due at that time?
A Yes.
Q Did you in any way feel that there was any unsafe or dangerous condition with reference to the railings, and the manner in which they had been installed ?
A No.”

The evidence is that Mr. Ezon desired the apartments to be economically but soundly constructed. This record reflects that he was successful in both of his aims.

The trial court found that these buildings were completed in accordance with the plans and specifications as amended. We sustain this finding and decline to hold that it was so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Point fourteen is overruled.

Ezon’s last point is that, regardless of the outcome of this appeal, two thirds of the cost of the transcript should be borne by Faulkner because he had included in it many unessential documents.

Faulkner answers, in part, that the abandoned pleadings included in the transcript were relevant on the issue of reasonableness of attorney’s fees which he sought.

We will consider these matters in making what we consider to be an equitable apportionment of appellate costs.

The transcript fee is $232.75. The statement of facts fee is $2,050.00. Since most of the transcript was relevant to Faulkner’s unsuccessful attempt to collect attorney’s fees, we assess the entire cost of the transcript to Faulkner. Since most of the statement of facts was useful only for Ezon’s unsuccessful attempt to recover on his cross action, we assess the entire cost of the statement of facts to him. All other appellate costs, we assess one half against Faulkner and one half against Ezon.

We reform the judgment of the trial court by deleting therefrom the recovery of $15,000.00 attorney’s fees awarded Faulkner against Ezon. As reformed, the judgment of the trial court is affirmed.

Judgment of trial court reformed and as reformed, affirmed.


author: NYE, Justice.

text:
    OXFORD DEVELOPMENT CO., Inc., Vicente V. Garza and Gail E. Cooper, Appellants, v. Paul G. EPPES, Appellee.
    No. 364.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 7, 1967.

      Philip I. Palmer, Palmer, Palmer & Burke, Dallas, for appellants.
    Faires P. Wade, of Wade & Howard, Corpus Christi, for appellee.
   OPINION

NYE, Justice.

This is a venue action under sub-section 4 of article 1995, Vernon’s Ann.Civ.St. Plaintiff, an architect brought suit against Loyal Stotler, d/b/a Stotler Construction Company of Hidalgo County, Texas and Oxford Development Co., Inc., Vicente Garza, Jr. and Gail Cooper, residents of Webb County, Texas for services performed. The venue phase of the case was tried before the court without the intervention of a jury resulting in the overruling of the non-resident defendants’ pleas of privilege. The appellants allege in one point that the trial court erred in overruling their plea of privilege for the reason that the evidence fails to establish a bona fide claim against the resident defendant Stotler.

It is a familiar rule of law that in order to maintain venue under sub-section 4, article 1995, V.A.C.S., where there are resident and non-resident defendants, the plaintiff in order to establish his right to maintain venue must: 1) allege a joint cause of action against the defendants or a cause of action against the resident defendant so intimately connected with the cause of action against the non-resident defendants that the two may be joined under the rule intended to avoid a multiplicity of suits; and 2) prove that one defendant resides in the county where the suit is filed, and that he has a cause of action against such resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936, opinion adopted by Supreme Court); Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758 (1956); Harbenito Realty Corporation v. Avila, 406 S.W.2d 523 (Tex.Civ.App.—Corpus Christi 1966).

The plaintiff’s pleadings are sufficient to constitute a proper joinder of causes of action against all of the defendants resident and non-resident. It is uncontradicted that defendant Stotler lives in Hidalgo County, Texas. The question then, according to the appellant, is whether or not the plaintiff established a prima facie cause of action against the resident defendant Stotler.

In plaintiff-appellee’s counterpoint he brings to the attention of this Court that no findings of fact or conclusions of law were requested or filed. Accordingly, the judgment of the trial court implies with it all necessary fact findings in support of such judgment. In seeking to determine whether there is any evidence to support the same, and the implied findings of fact incident thereto, it is proper for us to consider only that evidence most favorable to the issue and to disregard entirely that which opposes it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114 (1950).

Plaintiff alleged that the original agreement with defendant Stotler was that he would be paid $5,000.00 upon delivery of the builder’s plans and the remaining $5,000.00 when the defendant Stotler obtained a construction contract. At a later meeting the agreement was expanded to include an additional building and arrangments to pay for the hiring of a structural engineer with a total fee to be $23,000.00. Plaintiff alleged that in a second letter agreement, it was acknowledged and agreed that he had been paid $10,000.00 and that there was a balance of $13,000.00 due and payable when the owner (appellants) obtained the construction loan for the project. Plaintiff alleged in his amended petition that there was in existence an additional subsequent third party written agreement between the defendant Stotler and appellants relative to the defendant Stotler delivering over to the appellants the building plans which were prepared by the plaintiff so that bids could be taken on the entire project. Plaintiff alleged that this subsequent third-party agreement between the appellants and the defendant Stotler was to the effect that the appellants agreed to pay defendant Stotler the amount due to the plaintiff for the plans for the building. Plaintiff served notice on all parties defendant to furnish such third-party agreement, preparatory to the introduction of secondary evidence of same.

Upon the trial of the case only the plaintiff testified. The substance of plaintiff’s testimony was that the second letter agreement between plaintiff and defendant Stot-ler was not intended to incorporate all the terms of the plaintiffs’ agreement with defendant Stotler. Plaintiff testified that he needed the second letter agreement to take to his banker to show that he was getting compensation for his work. Plaintiff then testified that he and defendant Stotler subsequently modified this letter agreement to the extent that the prepared plans were to be delivered to the defendant Stotler for the purpose of obtaining bids from various sub-contractors and that these plans were not to be delivered to the appellants or anyone else without defendant Stotler getting paid for them. That the plans were delivered by plaintiff to defendant Stotler and from Stotler to the appellants. Defendant Stotler did not pay the plaintiff the balance due ($13,000.00), although he agreed to protect the plaintiff on his fee arrangement by their subsequent oral agreement.

Appellants contend that the second written letter agreement clearly evidences the contract between the parties and that since the contract provided that the balance due the plaintiff ($13,000.00) was to be paid when the construction loan for the project had been obtained and the appellants had entered into a construction contract with Stotler Construction Co. and since plaintiff did not prove that these conditions had taken place, the amount is not due and owing and therefore the plaintiff failed to prove a cause of action against defendant Stotler, the resident defendant. Appellants further contend that any testimony concerning any subsequent agreement between the plaintiff and defendant Stotler violates the parol evidence rule. The underlying theory of the parol evidence rule is that the reduction of an agreement to a final written form supersedes prior and contemporaneous outside expressions of the parties, but there is nothing contained in such rule which prevents the written transactions from being later modified by the parties by a new agreement even though it might be oral. Garcia v. Karam, 154 Tex. 240, 276 S.W.2d 255 (Tex.Sup.1955); McCormick & Ray, Evidence, § 1671.

Plaintiff testified as to the third party beneficiary contract to which the appellants, as well as the resident defendant Stotler were parties. Plaintiff testified in effect that Stotler agreed not to release the plans to anyone without payment. He further testified on cross examination that defendant Gail Cooper and defendant Loyal Stotler told him that Stotler had a signed contract with the Oxford Development Company which provided that Stotler would be paid for the plans. The context of the evidence shows that the plaintiff was testifying about the plans that he had drawn under his agreement with the parties and that payment to Stotler would be made by Oxford Development Company. The substance of this subsequent oral agreement was not denied by Stotler or any of the appellants. We hold that this testimony of plaintiff, combined with other facts in evidence, is sufficient to establish a cause of action against the resident defendant Stot-ler. Appellants’ point is overruled.

Judgment of the trial court is affirmed.