author: BELL, Chief Justice. COLEMAN, Justice

text:
    N. R. WALL, Appellant, v. AYRSHIRE CORPORATION et al., Appellees.
    No. 13811.
    Court of Civil Appeals of Texas. Houston.
    Dec. 14, 1961.

      Baker, Botts, Andrews & Shepherd, James G. Ulmer, Houston, for appellant.
    Vinson, Elkins, Weems & Searls, F. Russell Kendall, Jarrel D. McDaniel, Houston, for appellee.
   BELL, Chief Justice.

This is an appeal from a summary judgment rendered in favor of appellees in response to their motion for summary judgment.

Appellant N. R. Wall was a real estate agent. On February 1,1946, he entered into a contract with appellee Ayrshire Corporation under the terms of which he was given the exclusive sales agency to sell the lots into which certain property should be thereafter subdivided. The property, which was unplatted acreage in the City of Houston, consisted of 215 acres. After the making of the contract, from time to time portions of the acreage tract were subdivided and thus made into residential subdivisions. The subdivisions were called “Ayrshire”. There were twelve sections subdivided by Ayrshire Corporation. One other section, being numbered 13, was subdivided by appellee, Roy Miller, after 9.268 acres of the 215 acre tract had been sold by Ayrshire Corporation to appellee, J. B. Cassidy, and by him sold to Miller. Section 14 was a subdivision of some 14 acres conveyed by Ayrshire to Ayrshire Pension Trust and by the Trust to John Hannah. For all lots which were sold in the first 12 sections of Ayrshire appellant received the commission agreed upon in the contract. He was paid the commission even though the sale was made Dy someone else. This was in accordance with the agreement.

In 1957 this suit was brought against Ayrshire Corporation, J. B. Cassidy and Roy Miller. Appellant in his original petition sought recovery of commissions on two sales of acreage tracts out of the 215 acre tract that had not been subdivided. By his amended petition, filed in November, 1960, appellant sought to recover his asserted commissions on these and two other acreage tracts. Too, he alleged that 19 acres of the 215 acres remained undisposed of and he sought a judgment declaring he would be entitled to his commission on any sale of this acreage. The four sales on which appellant claims commissions are as follows:

1. The sale for $27,500.00 by Ayrshire Corporation to the City of Houston of approximately 5½ acres for park and right-of-way purposes. The sale was of unplatted acreage and was made under threat of condemnation in October, 1953.

2. The conveyance by Ayrshire Corporation to J. B. Cassidy of 9.268 acres on April 9, 1956. This was on the same day conveyed by Cassidy to Roy Miller. The only reference we find to the sale price is in appellant’s petition, where he asserts it was $200,000.00 and in the alternative it was a distribution of assets of Ayrshire Corporation and had that market value. This was unplatted acreage. A short time later it was platted by Miller into Ayrshire Section 13.

3. The conveyance in 1959 by Ayrshire Corporation to David Hannah and W. F. Burge, Trustees of Ayrshire Pension Trust of 14.849 acres. This was later conveyed to John Hannah, brother of David Hannah, who was President of Ayrshire Corporation. The price was allegedly $300,000.00.

4. The sale by Ayrshire Corporation in February, 1959 to the City of Houston of 4.5 acres of unplatted land for right-of-way for street purposes. This sale was under threat of condemnation.

Appellee Ayrshire Corporation answered, asserting a failure by appellant to perform. It also claimed cancellation of the contract in September, 1957. Further it contended appellant was entitled to a commission only on “lots” sold where the property had been made into a city subdivision and that he was entitled to no commission on acreage sold that was no part of a subdivision. It pled full payment of commissions on all lots sold.

Appellees Cassidy and Miller pled they were not parties to the written contract sued on and had no agreement of any kind to pay any commission and if there was any agreement it rested in parol and was within the inhibition of the Real Estate License Act, Article 6573a, Vernon’s Ann.Civ.Tex.St. Appellant on appeal does not seek to reverse the judgment favorable to these two appel-lees and we will notice the suit as to them no further.

The court sustained appellee Ayrshire’s motion for summary judgment on the theory that appellant was entitled to commissions only on the sale of “lots” into which acreage might have been subdivided and that the sales of acreage were not sales of “lots.” Too, as to the sales in 1959, appellant was entitled to no commission as appellee had cancelled the contract.

Appellant relies for reversal on two points of error.

1. He contends the contract entitled him to a commission on the sale of any portion of the 215 acres whether it had been made into a city subdivision or not.

2. He contends the contract was not cancellable by appellee without giving him a reasonable opportunity to perform and that he had not been given such opportunity. At all events, he says, a fact question was raised as to whether he had been given such reasonable opportunity.

We have reached the conclusion that the trial court correctly sustained the motion for summary judgment.

We think the contract imposed no duty on appellee to subdivide the whole of the 215 acres into a city subdivision or subdivisions and that the agency of appellant was only to sell such “lots” as the property was divided into by the platting of city subdivisions. It should be kept in mind that appellee has fully paid appellant his commission on every lot sold whether he actually made the sale or not. In fact, between 1950 and 1956 appellee paid appellant some $92,000.00 in commissions though appellant neither personally, nor through his agent, made any sale. Appellant claims he was ready and willing to do so but was prevented from doing so by appellee.

The contract reads as follows:

“Ayrshire Corporation, a Texas Corporation with its principal place of business in Houston, Harris County, Texas, is the owner of 215.960 acres of land made up of two tracts in the P. W. Rose Survey in Harris County, Texas, one tract containing 23.060 acres and the other tract embracing 192.9 acres, such 215.960 acres being all the land formerly owned by League Davis Properties and lying South of Bellaire Boulevard, West of Stella Link Road, East of G. H. and S. A. Railroad, and North of Brays Bayou (Such Bayou forming the South boundary of the property).
“At its own cost and expense, Ayrshire Corporation contemplates subdividing said 215.960 acres into a city subdivision and constructing a residential building on each lot of the subdivision, to the end that by December 1, 1947 all such subdividing and building should be completed.
“N. R. Wall, a resident of Houston, Harris County, Texas, doing business under the name of N. R. Wall Realty Company, is engaged in the business of acting as agent for owners of real estate in Harris County, Texas, in the selling thereof and receiving a commission therefor on each sale.
“Ayrshire Corporation is hereinafter referred to as 'CORPORATION’ and N. R. Wall (N. R. Wall Realty Company) is hereinafter referred to as ‘WALL’.
“For and in consideration of the agreements hereinafter set fortli to be performed by WALL and in consideration of the sum of Ten and No/100 ($10.00) Dollars and other good and valuable considerations to Corporation paid in cash by WALL, the receipt and sufficiency of which CORPORATION hereby acknowledges, CORPORATION hereby gives and grants unto WALL the sole and exclusive right to, and appoints WALL its sole and exclusive Agent for the purpose of selling all the lots into which said 215.960 acres are subdivided, for such prices and upon such terms and consideration per unit as CORPORATION may from time to time name.
“As compensation for each sale of an improved portion of the property which WALL makes, CORPORATION shall pay WALL an amount in cash equal to five (5%) percent of the sales price, and as compensation for each sale of an unimproved portion of the property which WALL makes, CORPORATION shall pay WALL an amount in cash equal to ten (10%') percent of the sale price, such compensation in each case to be payable at the time the sale is closed, and WALL is authorized as a matter of convenience to deduct and retain his proper compensation out of the sale proceeds.
“Should all or any portion of said property be sold during the life of this agreement by any party other than WALL, CORPORATION shall nevertheless pay WALL the same compensation therefor as though WALL had made the sale. When the terms and price of sale of any portion of the property have been fixed by CORPORATION then WALL shall have the right to execute contracts of sale covering such and binding CORPORATION thereto, and may accept earnest money deposits in connection therewith, and upon payment of the sale price by the purchaser, CORPORATION will execute and deliver to the purchaser a general warranty deed conveying to that party the property covered by the sale contract, subject to building restrictions and the terms of the sale contract. On each sale, CORPORATION shall, at its election, either furnish a complete abstract or an owner’s title policy showing title to the property involved in the sale good and marketable in CORPORATION, subject to building restrictions and the terms of the sale contract.
“WALL is given the right to erect, at his expense, a field office and place same in progressively satisfactory locations throughout the subdivision to accelerate sales.
“WALL agrees to prepare and execute advertising in order to accelerate sales of all houses in the entire subdivision, all at WALL’S own cost and expense, and without cost or expense to CORPORATION, prepare •or cause the preparation of any and all aids deemed necessary by WALL. WALL agrees to diligently undertake the sales herein contemplated and use his best efforts in that regard. All sales, sales policies and adver- JBC tising shall have prior approv- DH al of the CORPORATION. NRW
“CORPORATION shall never have any liability for the acts of any servant, employee, agent or representative of WALL, but WALL alone shall be responsible therefor.
“This contract is and shall be binding upon and inure to the benefit of the respective parties hereto and their respective heirs, successors and assigns.
“EXECUTED in duplicate at Houston, Texas this February 1, 1946.
‘'AYRSHIRE CORPORATION
"ATTEST “By David Hannah, Jr,
“J. B. Cassidy_
“Secretary “N. R. Wall_
“Doing Business as N. R. Wall Realty Company
(acknowledgments) ”

Both parties treat the contract as being unambiguous but each contends for a legal construction favorable to their respective contentions as set out above. We consider it to be unambiguous and its construction was a matter for the trial court.

In construing the contract the intention of the parties is to be ascertained from a consideration of all its provisions. Universal C. I. T. Credit Corporation v. Daniel, 150 Tex. 513, 243 S.W.2d 154; Brown v. Brown, Tex.Civ.App., 245 S.W.2d 995, writ ref.; Pacific Mutual Life Ins. Co. v. Westglen Park, Inc., 160 Tex. 1, 325 S.W.2d 113.

The first paragraph of the contract recites the ownership by Ayrshire of a specifically described 215.960 acres of land in the City of Houston. The second paragraph states Ayrshire at its own cost and expense “contemplates subdividing such acreage into a city subdivision and constructing a residential building on each ‘lot’ of the subdivision to the end that by December 1, 1947 all such subdividing and building should be completed.”

This in nowise obligates Ayrshire to subdivide all of said acreage. There is no promise to subdivide all of the acreage. The provision merely shows that at that time it intended to at different times subdivide portions of the acreage and thought it would all be platted by December, 1947. Newsome v. Brown, Tex.Civ.App., 157 S.W. 203, no writ history.

Following the first two paragraphs is one reciting that appellant is engaged in the business of acting as agent for owners of real estate in selling it and receiving a. commission. Then follows the very-significant paragraph which creates the agency and defines its nature. It grants and gives appellant the sole and exclusive right to sell “all lots into which said 215.960 .acres are subdivided.” The subject matter of the agency is the sale of lots into which the 215 acres may be subdivided. This is the only agency created. There was no promise, however, to divide all of the acreage into lots.

Following the paragraph creating the agency is the paragraph for payment of ■compensation. It is provided that for each sale of an improved portion “of the prop■erty” appellant shall be paid 5%' of the sales price and for each sale of an “unimproved portion of the property” he shall receive 10%' of the sale price. When -the term “property” is here used, keeping in mind the nature of the agency created, •that is, one to sell the lots into which the 'land may be divided, it means a lot or lots. Payment of the commission is for the ex■ecution of the agency created. The commission for “improved portion of the prop■erty” must be read in connection with the previous provision that Ayrshire contemplated dividing the property into lots of a • city subdivision and constructing a resi•dential building on each lot. Further, the ■contract provides that upon the sale of '“any portion of the property” the deed • and title policies shall be “subject to building restrictions.” This reflects an intention that the subject matter of the agency and the payment of commissions is the sale of lots of a subdivision where there have been restrictions imposed. The obligation to pay the commission is for the sale of a lot.

It is true that the contract has what appellant calls a “protective” provision. This is the paragraph that provides that if any portion of the property is sold by others appellant will be entitled to his commission. This was merely to make certain the exclusive nature of the agency. However, we are • of the view that the term “property” is used only in the sense of lots of a subdivision which is the subject matter of the agency.

Appellant urges that the term “lot” is of variable meaning and can include acreage. The term can have different connotations, depending upon all facts and circumstances attending its use. Where it is used as here in connection with a contemplated platting of urban acreage into a city residential subdivision, we think it can have but one meaning and that is it is a fractional part of a block limited by fixed boundaries on an approved recorded plat. Mawson-Peterson Lumber Company v. Sprinkle, 59 Wyo. 334, 140 P.2d 588, 147 A.L.R. 1089; Ontario Land & Improvement Co. v. Bedford, 90 Cal. 181, 27 P. 39; Town of Greendale v. Suit, 163 Ind. 282, 71 N.E. 658; Green Avenue Apartments v. Chambers, Tex.Civ.App., 239 S.W.2d 675, no writ history.

The above construction precludes the recovery of any commission on the sale of any of the four enumerated tracts.

There is an additional reason why appellant is precluded from recovery of a commission on the sale of the acres to the City of Houston and the sale of the 14 acres to the Ayrshire Pension Trust. Both of these sales were made in 1959, after the contract had been terminated in September, 1957.

Appellant’s position is that appellee could not unilaterally terminate the contract because he had made extensive expenditures of money in connection with promotion of the subdivision and he should be given a reasonable opportunity to accomplish the purpose of the agency. Additionally he says the agency is one coupled with an interest.

We are unable to agree with appellant. The agency fixed no time for its termination. It was of indefinite duration. The general rule is where an agency to sell real estate, or a brokerage contract, which this is, is of indefinite duration, it not being for a fixed time, it may be terminated at the will of the principal. 2 Tex.Jur.2d, Sec. 15, p. 450; Evans v. Gay, Tex.Civ.App., 74 S.W. 575, no writ history; Nichols & Jackson v. Carson, Tex.Civ.App., 220 S.W. 297, no writ history; Neal v. Lehman, 11 Tex.Civ.App. 461, 34 S.W. 153, no writ history; Brigham v. Cason, Tex.Civ.App., 233 S.W. 530, no writ history. We are unable to see that any different rules are applicable where the contract involves sales of lots in a subdivision. We deem the authorities cited by appellant factually distinguishable from the case before us.

We are not confronted with a situation where the agent may have made substantial expenditures and is given no reasonable opportunity to perform, and we do not pass upon an agent’s rights in such situation. Admittedly, here sales were made of lots prior to December, 1950, on which appellant received his commissions and he was paid some $92,000.00 in commissions from December, 1950 through 1956, when the sales were actually made by other persons. These commissions covered 12 sections of Ayrshire Addition.

Neither was the agency one coupled with an interest. To be an agency coupled with an interest the agent must have a present interest in the property upon which the power is to opérate. It does not suffice that the agent have an interest in the proceeds to be derived from the sale of the property. There must be a beneficial interest in the thing itself. 2 Tex.Jur.2d, Agency, Sec. 25; Superior Oil Co. v. Stanolind Oil & Gas Co., Tex.Civ.App., 230 S.W.2d 346, aff’d 150 Tex. 317, 240 S.W.2d 281; Tinsley v. Dowell, 87 Tex. 23, 26 S.W. 9-16; Browne v. King, Tex.Civ.App., 196 S.W. 884, aff’d 111 Tex. 330, 235 S.W. 522; Neal v. Lehman, 11 Tex.Civ.App. 461, 34 S.W. 153, no writ history.

Our holding that Ayrshire Corporation has effectually terminated the contract will also prevent appellant from any recovery of a commission for the unsold part of said •215 acres should it ever be sold.

The judgment of the trial court is affirmed, Associate Justice Coleman dissenting in part.

COLEMAN, Justice

(dissenting).

I respectfully dissent from the conclusions reached by the majority of this Court in construing that portion of the contract reading: “Should all or any portion of said property be sold during the life of this agreement by any party other than WALL,. CORPORATION shall nevertheless pay WALL the same compensation therefor as though WALL had made the sale * * * ” It appears that the sale made by Ayrshire Corporation to J. B. Cassidy on April 9, 1956, would be governed by this provision and that a commission would be due WALL by reason thereof.

Since this is an appeal from a summary judgment, I would reverse and remand the case for trial on the merits.


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    Byron BURNETT, Appellant, v. CORY CORPORATION, Appellee.
    No. 15931.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 10, 1961.
    Rehearing Denied Dec. 15, 1901.

      Wm. Andress, Jr., Dallas, for appellant.
    Ungerman, Hill, Ungerman & Angrist and Robert W. Austin, Dallas, for appellee.
   WILLIAMS, Justice.

This is a summary judgment case. On May 28th, 1959, Cory Corporation, “d/b/a Mitchell Manufacturing Company, a Corporation” instituted this action against Byron Burnett, d/b/a Texas Improvement Company, in the nature of a suit on verified account. Attached to the original petition were various invoices directed to Texas Improvement Company from “Mitchell Manufacturing Company, division of Cory Corporation.” Thereafter, on June 27th, 1959, Byron Burnett filed his unsworn answer in which he moved to dismiss the case on the grounds that Cory Corporation is a separate corporation from Mitchell Manufacturing Company and that said petition affirmatively demonstrated that Cory Corporation had no basis of action against Burnett. Subject to this motion to dismiss, Burnett filed a special exception directed to the allegations concerning the status of Cory Corporation and Mitchell Manufacturing Company. Following a general denial, Burnett then alleged that his transactions had been with Mitchell Manufacturing Company; that certain credits had not been allowed, and therefore the account is not just and true. Additionally, he sought offsets and counterclaims by virtue of certain “potential liabilities” which he claimed arose out of certain warranties which he furnished customers based upon alleged representations of Mitchell Manufacturing Company. On July 14th, 1959, Cory Corporation, d/b/a Mitchell Manufacturing Company, filed its motion for summary judgment, duly verified by one of its attorneys, alleging that there is no genuine issue as to any material fact and that defendant’s unverified answer was insufficient in law to constitute a defense. While the record does not affirmatively reveal the action of the trial court in connection with Burnett’s motion to dismiss and special exception contained in his original answer, there is an unchallenged statement in appellant’s brief to the effect that the court did hear the motion and special exception and suggested that plaintiff should amend. Thereafter on January 11th, 1960, Cory Corporation filed its First Amended Original Petition alleging that Mitchell Manufacturing Company was a division of Cory Corporation; that on November 22nd, 1957 Mitchell Manufacturing Company was merged into Cory Corporation, pursuant to the laws of the State of Delaware, as reflected by a certificate of ownership and merger, said certificate being attached to the amended petition; and that the account as evidenced by the various invoices, was owned by Cory Corporation. The amended petition then reasserted the same verified account as was contained in the original petition. Thereafter on November 10th, 1960, the trial court rendered final judgment sustaining the motion for summary judgment, said judgment containing inter alia, the following recitations:

“On the 10th day of November 1960 in the above entitled, and numbered cause, came on to be heard plaintiff’s cause, and came the plaintiff by and through its attorney of record and announced ready, and came the defendant by and through his attorney of record, who in open court stated that there had been no service upon the Amended Petition filed in this cause by plaintiff, which he claimed asserted a new cause of action, and that defendant had not appeared nor answered thereto, and that he was present upon a Motion for Summary Judgment which had been filed prior to the amendment of said petition, and the court having thereupon considered such Motion, the pleadings, over the Defendant’s objection to the sufficiency of the affidavit attached to Plaintiff First Amended Original Petition, and the Court having further considered the admissions on file, over Defendant’s objection that time for answer required by Rule 169 had not been given Defendant, and the Court having heard and considered the argument of counsel on said Motion is of the opinion, and hereby finds, that there is no genuine issue as to any material fact existing between the parties with reference to the debt and account upon which plaintiff’s cause of action is predicated; that plaintiff, Cory Corporation, a Corporation, is entitled to judgment as a matter of law on the account sued upon and that Plaintiff’s Motion should be, and the same is hereby, granted and’sustained ; that the account and debt upon which Plaintiff’s cause of action is based is proved by the admissions on file herein on which debt and account there is due and owing to the Plaintiff by the Defendant the sum of $5,738.56 principal, $982.00 interest, together with reasonable statutory attorney’s fees, which the Court finds and assesses in the sum of $850.00, or a total of $7,570.-56, in which sum the Plaintiff is entitled to recover from the defendant herein.”

In his first point on appeal, appellant asserts that the summary judgment was improvidently granted because the petition in existence when it was filed was ■defective, and after the petition was amended to state a new cause of action, no new motion for summary judgment was ever filed. By this point appellant assumes that plaintiff’s First Amended Original Petition was so different from the original petition as to constitute a new cause of action requiring new citation and another motion for summary judgment. With this contention we cannot agree. It is significant to observe that both the original petition and the amended petition alleged the identical account. Attached to each petition, as exhibits, are the identical invoices and statements of accounts, each captioned “Mitchell Manufacturing Company, a division of Cory Corporation.” The first amended original petition was filed in this case, as a part of the orderly processes permitting amendment of pleadings, in response to appellee’s motion to dismiss and special exception in which he sought a clarification of the status of the corporation bringing the case. We hold that the amended petition was not in the nature of a new cause of action, but merely a clarification of the parties. Our Supreme Court in Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816 disposed of this question stating that a mere change in the capacity in which the plaintiff brings a suit, where the substantive facts are the same, does not amount to the institution of a new suit. See also Yeary v. Hinojosa, Tex.Civ.App., 307 S.W.2d 325; Baker v. Gulf C. & S. F. Ry. Co., Tex.Civ.App., 184 S.W. 257 and Rachford v. City of Port Fleches, Tex.Civ.App., 46 S.W.2d 1057.

Neither do we agree with appellant’s contention that the trial court was without power to consider the amended pleadings in connection with the motion for summary judgment, filed prior to such pleadings. Rule 166-A, Texas Rules of Civil Procedure, specifically provides that judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, demonstrate no genuine issue or any material fact. This truly implies pleadings, depositions, and admissions on file at the time of the hearing of the motion for summary judgment. To hold otherwise, would violate the salutary provisions of our rules permitting amendments to pleadings. The summary judgment rule clearly provides that the trial court shall determine from the entire record then before it, whether in fact, there is a disputed material issue to be determined by a trier of fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. The amended petition, unchallenged by exceptions, stands in the place of the original petition as part of the record in the case. Rule 65 T.R.C.P.; Kelso v. Wheeler, Tex.Civ.App., 310 S.W.2d 148. This court in Schepps v. American Dist. Telegraph Co. of Texas, Tex.Civ.App., 286 S.W.2d 684, in affirming a summary judgment, said that the trial court was duty bound to consider plaintiff’s last amended original pleadings in full on the hearing for summary judgment.

By his second point appellant challenges the judgment by the assertion that, without supporting affidavits, the motion for summary judgment was improperly granted because there was an issue of fact apparent from the pleaded offset and counter-claim, as well as conflicting affidavits of account attached to the original and amended petitions. This point must be overruled. Appellant did not deny the verified account, as provided under Rule 185 T.R.C.P. Appellant’s answer, not sworn to, is the only pleading appearing in the record on behalf of Burnett. The judgment of the trial court recites that the basis of such judgment is not only the pleadings but the admissions before the court. Thus it is evident that appellee, upon hearing, did not rely solely upon the verified account but went further and introduced extrinsic evidence in the form of admissions to support its allegations that there were no material issues of fact. Appellant introduced no evidence whatsoever. At the hearing the burden of proof was definitely upon the appellee to establish no genuine issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. Appellee did this by introducing extrinsic evidence in support of its verified petition thereby demonstrating its right to recover. To oppose, the appellant became obligated to raise affirmative defenses of offset and counter-claim by some means other than by his mere pleadings. In Gulf C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 our Supreme Court said:

“When a motion for summary judgment is supported by affidavits, depositions, stipulations, or other extrinsic evidence sufficient on its face to establish facts, which, if proven at the trial would entitle the movant to an instructed verdict, the opponent must show opposing evidentiary data which will raise an issue as to a material fact, or must justify his inability to do so and seek appropriate relief under subdivision (f) of Rule 166-A. (Citing cases). Where the plaintiff moves for summary judgment in an action in which defendant has pleaded an affirmative defense, he is entitled to have his summary judgment if he demonstrates by evidence that there is no material factual issues upon the elements of his claim, unless his opponent comes forward with a showing that there is such a disputed fact issue upon the affirmative defense.”

See also the opinions of this Court in Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832; Sessions Co. v. W. A. Sheaffer Pen Co., Tex.Civ.App., 344 S.W.2d 180; and the opinions of the Supreme Court in Kuper v Schmidt, Tex., 338 S.W.2d 948; and Allen v. Western Alliance Ins. Co., Tex., 349 S.W.2d 590.

By his third and final point appellant contends that the request for admission of facts was improperly considered on the motion for summary judgment in that the appellant was not given the time prescribed by Rule 169 to answer same. The request for admissions does not appear in the record.. There is no statement of facts, nor independent findings of facts and conclusions of law by the trial court. The only reference-to insufficiency of the request for admissions, of fact is found in the judgment wherein the court stated that he had considered the-admissions on file, over defendant’s objections that time for answer required by Rule 169 had not been granted defendant. Appellant, in his statement under point three, states that the request for admissions-served upon his client provided that matters-would be deemed admitted “unless answered within ten days after delivery”. He contends that under Rule 169 T.R.C.P. that his-client should have been given “not less than ten days” within which to answer. We are of the opinion that since appellant has failed to bring forward into the record the matter about which he now complains, we should not consider such point. However, appellee, in its brief impliedly assents-to our considering this point by setting out facts, unchallenged by appellant, relating to the service on appellant of the request for admissions of fact. In any event we see no merit to appellant’s third point and the same is overruled.

According to appellee’s brief plaintiff’s request for admissions of fact was mailed to defendant’s attorney by certified mail on January 11th, 1960; the receipt thereof is not denied. Defendant made no response of any character to plaintiff’s request, nor did he, at any time by motion or otherwise, seek to gain additional time in which to deliver to plaintiff a sworn statement in reply to the request. Rule 169 T.R.C.P. grants to the party a period of ten days in which to answer request for •admissions of fact. It does not authorize the party to ignore the requests by declining to answer them at all. Masten v. Masten, Tex.Civ.App., 165 S.W.2d 225; Frierson v. Modern Mutual Health & Accident Ins. Co., Tex.Civ.App., 172 S.W.2d 389. In order to avoid the consequences of failure to answer a party must show legal or ■equitable excuses for his failure to answer. Lozano v. Kazen, Tex.Civ.App., 313 S.W.2d 894. See also Croan v. McKinney (Tex.Civ.App.), 185 S.W.2d 768, aff. Supreme Court, 188 S.W.2d 144.

Since there is no statement of facts or findings of fact and conclusions of law, every presumption must be applied in favor of the judgment of the trial court in a case of this kind. It is to be presumed, from the recitations contained in the judgment in 'this case, that the trial court correctly •received sufficient legal evidence to justify Tiis judgment and also applied the applicable law thereto. McFarland v. Connally (Tex.Civ.App.), 252 S.W.2d 486; Reese v. Davitte, Tex.Civ.App., 255 S.W.2d 1015.

The judgment of the trial court is affirmed.


author: BOYD, Justice.

text:
    Earnest O. GILLAM et al., Appellants, v. A. E. SULLIVAN et al., Appellees.
    No. 16252.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 17, 1961.
    Rehearing Denied Jan. 5, 1962.

      Lattimore & Lattimore, Morgan & Shropshire, and Cecil A. Morgan, Fort Worth, for appellants.
    Walker, Day & Harris, and Joe Day, Jr., Fort Worth, for appellees.
   BOYD, Justice.

Earnest O. Gillam individually and as trustee, his wife Merl Gillam, and Arthur P. Ticknor and wife, Jane Ticknor, appeal from a summary judgment rendered against them in their suit against A. E. Sullivan, J. C. Sullivan, Mrs. O. F. Sullivan, the executrix and beneficiary under the will of O. F. Sullivan, deceased, and Gillam Soaps & Chemicals, Inc. The suit was for rescission of contract on the grounds of failure of consideration, breach of contract, and fraud, and in the alternative for damages.

A motion for summary judgment filed by appellees, with many documents therein referred to attached, was overruled. After appellants had amended their petition, an unverified amended motion for summary judgment was filed by appellees, which was sustained, and which referred to the documents which had been attached to the original motion, but none was attached to the amended motion. Rule 166-A, Texas Rules of Civil Procedure, provides that affidavits may be filed supporting a motion for summary judgment, and that sworn or certified copies of all papers or parts thereof referred to in such affidavits shall be attached thereto or served therewith. Our Supreme Court, in Gardner v. Martin, Tex., 345 S.W.2d 274, held that such copies of documents must be attached or served when referred to in an unsworn motion, which has no supporting affidavit. In view of this holding, we do not consider the documents referred to in the amended motion, but rest our decision on appellants’ pleading, the documents thereto attached and made parts thereof, the uncontradicted evidence adduced by depositions, and the admissions on file.

On June 29, 1953, appellants owned all of the capital stock of Gillam Soap Works, a Texas corporation, certain real estate in Fort Worth being among the assets of said corporation, said real estate having been theretofore conveyed to the corporation by appellants Gillam.' On said date appellants sold all of the capital stock of Gillam Soap Works to Gillam Soaps & Chemicals, Inc., a Missouri corporation, for a consideration of $300,000.00, $125,000.00 of which was paid in cash, and the balance being evidenced by a note in the principal sum of §175,000.00, payable to E. O. Gil-lam in 120 equal monthly installments, and secured by a deed of trust on said real property in Forth Worth. Interest at five per cent was payable annually.

On July 1, 1953, Gillam Soap Works sold all of its assets, including said real estate, to the Missouri corporation, Gillam Soaps & Chemicals, Inc., and on the same day Gillam Soap Works was dissolved. At that time the only interest any of the appellants had in said assets was that they were mortgaged to secure the note to E. O. Gil-lam for $175,000.00. None of the appellants has ever owned any of the capital stock of the Missouri corporation, and none has ever been an officer or a director of that concern.

On February 9, 1956, Gillam Soaps & Chemicals, Inc., the Missouri corporation, referred to therein as “Soap Works,” and appellant E. O. Gillam, as trustee, executed a written contract providing in substance: Soap Works agreed as of that date to transfer and assign all of the Texas assets of the company to the trustee; to execute all necessary papers to carry the assignment into execution; that any conveyance of the fixed assets would be made subject to the note held by Gillam; Gillam, as trustee, agreed to assume current liabilities not to exceed $40,000.00; it was agreed that “Gil-lam and his associates shall have the right * * * to organize a new corporation. * * * if they desire to retain and use the name Gillam Soaps & Chemicals, Inc. in Texas they shall have the right to do so. * * * Both parties understand that E. O. Gillam in signing this contract is acting strictly in the capacity as Trustee. That in the event an assignment should he made by him to a corporation, a partnership or any other group that said assignee will assume and agree to pay all obligations herein imposed upon Gillam as Trustee.”

On February 14, 1956, E. O. Gillam, as trustee, entered into a written contract with Ticknor, A. E. Sullivan, J. C. Sullivan, and O. F. Sullivan, therein referred to as “purchasers”, which provided in substance as follows: The trustee agreed to assign to the purchasers the contract of February 9, 1956, made by him and the Missouri corporation ; purchasers were to repay to trustee $10,000.00 already advanced by him to said corporation and $20,000.00 to be advanced by him; while the $30,000.00 was being repaid, trustee was to forego the principal payments on the debt owing to E. O. Gil-lam as part of the purchase price of Gillam Soap Works; Gillam would operate the business in his capacity as trustee until the purchasers should organize a new corporation, elect officers, and were prepared to function as a legal entity; the purchasers agreed to accept the contract of February 9, 1956, and to assume all liabilities thereunder; to repay the trustee the said $30,-000.00; to organize a Texas corporation to engage in the soap business and take over and operate the plant known as Gillam Soaps & Chemicals, Inc., the stock to be owned equally by the four purchasers; to assume and pay off the balance of $129,-500.00 on the purchase money note executed by the Missouri corporation to Gillam; to retain Ticknor at his present salary of $15,000.00 per year until said note was reduced to $87,500.00; to pay no dividends or bonuses until such debt reduction was made; to make no major change in the policies of the company without the advice and consent of the trustee; and that on failure to carry out any of such stipulations the agreement shall terminate and the rights of the purchasers thereunder will cease.

Said purchasers organized Gillam Soaps & Chemicals, Inc., a Texas corporation; and on May 1, 1956, a written operating contract was executed by E. O. Gillam,. therein referred to as general manager and trustee, and the Texas corporation and the said four purchasers, referred to as officers, directors and stockholders. By the terms-of this contract, Gillam was employed as general manager and trustee; the corporation assumed the original note to Gillam; also, agreed to repay the $30,000.00 advanced by Gillam; Gillam was to continue as general manager and trustee until (a) the $30,000.00 and interest shall be paid; and (b) until the original $175,000.00 note shall have been reduced to $87,500.00, “at which time this Contract shall terminate, unless by mutual consent of the parties the same shall continue thereafter”; should Gillam become unable to serve as general manager before the note is reduced to $87,-500.00, Ticknor would serve as general manager with the same authority and duties as the contract imposed on Gillam, until the Gillam note is reduced to $87,500.00; while Gillam or Ticknor is so serving, the general manager shall have authority to issue checks on the bank account of the corporation, to be countersigned by A. E. or O. F. Sullivan, which arrangement concerning the issuance and countersigning of checks shall remain in effect until the note is reduced to $87,500.00; no officer or stockholder, except Ticknor, should draw any salary until said note was reduced to $87,500.00; Ticknor and the Sullivans agreed that all of the stock of the corporation was to be placed in escrow until the note should be reduced to $87,500.00; should such debt reduction not be made, the stock was to be delivered to E. O. Gillam; but if the note should be paid down as so provided, the stock should be returned to the stockholders; the Sullivans agreed to buy through their company, Nu Way Products Company, a certain minimum amount of the products of Gillam Soaps & Chemicals, Inc., and a violation of that promise would forfeit all of their stock, and in such event the stock would be delivered to Gillam.

A deed from the Missouri corporation, dated January 27, 1958, conveyed the Texas assets to the Texas corporation, Gillam Soaps & Chemicals, Inc.

In their brief appellants say that the Missouri corporation contracted to recon-vey the “soap factory” to E. O. Gillam; in their petition they alleged that said corporation “returned” the Texas properties to Gillam as trustee, and that the corporation agreed that “all of the title” would pass into Gillam subject to performance of agreements in the instrument of February 9, 1956. It was further alleged that Tick-nor was to have a salary of $15,000.00 per year for the balance of his life, and that he had been discharged after his salary had been lowered; and that the Sullivans had no intention of keeping and abiding by their agreements, but from the inception of their dealings the Sullivans were engaged in a scheme and plan to defraud Gillam and his son-in-law Ticknor out of stock and management and income and assets of the company.

We think that E. O. Gillam, under the contract of February 9, 1956, made with the Missouri corporation, held the property not individually but as trustee. Hager v. Stakes, 116 Tex. 453, 294 S.W. 835; Forman v. Glasgow, Tex.Civ.App., 219 S.W.2d 845; Estes v. Estes, Tex.Com.App., 267 S.W. 709 ; 42 Tex.Jur., p. 629, sec. 28. As trustee, Gillam had the right to transfer and assign the property. He did so transfer and assign it. Certain rights were retained until his $30,000.00 was repaid and the balance of the $175,000.00 debt was reduced to $87,500.00. The right was retained for Ticknor to receive a salary of $15,000.00 per year until the $175,-000.00 debt was reduced to $87,500.00. He was so paid. About July 10, 1957, the balance of the $175,000.00 debt was reduced, without any delinquencies, to $87,500.00. The $30,000.00, which had been advanced hy E. O. Gillam, was duly paid. When the latter debt was paid and the former so reduced, the contractual arrangements terminated. There was neither allegation nor offer of proof that the contracts were extended by the parties, nor that they had been violated before their termination. There was uncontradicted testimony by deposition that the matter of extending Ticknor’s employment was never mentioned. We think that appellants’ allegations, with the three contracts attached and made parts thereof, along with the undisputed testimony of witnesses introduced by way of depositions, and appellants’ admissions on file, show that there was no issue of material fact.

The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    Charles H. ROGERS, Appellant, v. FAMOUS BRANDS OF TEXAS, INC. et al., Appellees.
    No. 16267.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 8, 1961.
    Rehearing Denied Jan. 5, 1962.

      Johnson & Browning and Kenneth Johnson, Wichita Falls, for appellant.
    Irvin J. Vogel, Wichita Falls, for ap-pellees.
   MASSEY, Chief Justice.

Famous Brands of Texas, Inc., Isadore Zoblotsky, and Harry Zoblotsky began doing business in downtown Wichita Falls in mid-year 1957 under the assumed name of Famous Brands Factory Outlet Shoes, dealing in women’s shoes advertised to be famous brands of shoes which could be bought from their store at savings of 30% to 60%. Extensive and expensive advertising accompanied their promotion of their shoe store, concentrated upon the advertising of their store as a “factory outlet”. A large illuminated sign was hung over the sidewalk from the front of the premises bearing in large letters the term “Factory Outlet”, under which in smaller letters the phrases “save 30 to 60 %” and “Wear the finest, Save the most”, appeared along with an illuminated woman’s high-heeled slipper.

Two doorways down, approximately 25 feet from the above store, there was a competing shoe store known as Henri’s Famous Brand Shoes, a women’s shoe store. Charles H. Rogers bought this store in 1959. He decided to change the name thereof to Rogers Factory Outlet. He so advertised the store and exhibited the name on sign or signs on the front thereof along with featured advertising which stated “Famous Brand Shoes at 30'% to 60% Savings.”

In September, 1960, Famous Brands of Texas and the two Zoblotskys brought suit for injunction to restrain Rogers from using the words “factory outlet” in naming his store or in advertising the same, and further from using said words in connection with any shoe store within a 100 mile radius of petitioners’ premises in Wichita Falls.

The permanent injunction prayed for was granted upon a trial on the merits before the court without a jury. Rogers perfected an appeal.

We have concluded that the correct disposition of the case requires that we reverse and remand the same to the trial court for the entry of a judgment continuing in effect an injunction, although one materially modified. This has been done before by appellate courts. 4 Tex.Jur.2nd, p. 540, “Appeal and Error — Civil”, sec. 926, “(Remand) To trial court to enter judgment” (3-B Tex. Jur., p. 637, sec. 1031). In so ordering we are not unmindful that the case is one in equity and could in the future perhaps necessitate enforcement better attended by the trial court than through action of an appellate court.

There is a contention made by ap-pellees, Famous Brands et al., that since the appellant did not make any exception to the Fndings of Fact filed by the trial court he is bound thereby and cannot attack the findings in this court. This is not the law when a statement of facts is made part of the record. Swanson v. Swanson, 1950, 148 Tex. 600, 228 S.W.2d 156. See other cases cited in Ferrier v. Caprock Machinery Company, 1961 (Tex.Civ.App., Amarillo), 350 S.W.2d 224.

One fact finding made by the trial court is to the effect that the words “factory outlet”, as used by the appellees in their business, do not indicate or designate a method of purchase and sale, and do not designate a class or type of business as pleaded by the appellant as a defense to appellees’ action. Appellant’s contention was that the term in question meant substantially that it was an economical method of acquiring merchandise offered for sale (by skipping the middleman) whereby savings could be passed on to the consumer, and constituted a descriptive word such as connated by the term “self-service” as part of a name such as for example: a self-service shoe store. We agree that the term “factory outlet” in the name of appellees’ store is merely descriptive of business carried on and that it cannot be exclusively appropriated as against others who can and do use the same with equal truth even if the words have acquired a secondary meaning. The finding, therefore, cannot be allowed to stand.

However, we also find a conclusion of fact in the Findings of Fact filed by the trial court as follows: “The use of the words ‘Factory Outlet’ by the Defendant Charles H. Rogers, in the name of his store and in advertising said store constitute unfair competition and are calculated to unlawfully and fraudulently divert business from Plaintiffs’ store to his store.”

The issue of appellant’s fraud in the use of the term “factory outlet” in the name of his business establishment was not raised by the pleadings in the case, but the issue was raised by the evidence, and therefore, in this non-jury case, is to be treated as if it were raised by pleadings. Tex.Rules Civ.Proc. Rule 47. We believe that a fair construction of the above quoted finding of fact would be that the appellant’s use of the term "factory outlet” was fraudulent, i. e., that it was intended thereby that the business of the appellees would be caused to suffer to the profit of the appellant or that an imposition upon the public would follow. It is encompassed by the conclusion, proper to be arrived at from adequate evidence in the statement of facts, that the appellant desired and by his actions accomplished the purpose of causing patrons intending to trade with appellees to enter his store and buy from him rather than from appellees.

In the recent case of Pipe Linings, Inc. v. Inplace Linings, Inc., 1961 (Tex.Civ.App., Fort Worth), 349 S.W.2d 279 (petition for writ of error pending), we held that where there is an absence of fraud a name merely descriptive of business carried on cannot be exclusively appropriated as against others who can and do use the name with equal truth, even if the words have acquired a secondary meaning. We also held in such case that where no exclusive rights to use the word or term exists, charge of fraud in use of it by another may be sustained only by actual proof.

In the instant case we are of the opinion that appellees’ use of the term “factory outlet” in the name of its store, constituting a name merely descriptive of the business carried on by it, has been such as to give a secondary meaning thereto, and that appellant’s attempted use thereof was fraudulent. In view thereof, we are of the opinion that the appellant’s incorporation of the term into his store-name, “Rogers’ Factory Outlet”, was properly enjoined even though the term “factory outlet” is likewise descriptive of his business.

The injunctive relief granted not only ordered that the appellant cease and desist from use of the words in question in the name of his store, but furthermore enjoined the use of the words in the advertising of his store or in signs at or about the premises. The injunction also was prescribed to have force and effect within a radius of one hundred miles of the City of Wichita Falls. Under our theory of the case we believe that the decree of injunction was too broad and extensive and that the exigencies of the case require no territorial provision in the judgment. 24A Tex.Jur., p. 307, “Injunctions”, Sec. 199, “ — Terms and Scope of Injunction”; 43 C.J.S. “Injunctions” § 211, “Final Judgment or Decree”, Sub. b, “Form and Contents”, p. 941.

We do not believe that the appellant can lawfully be enjoined from using the descriptive term “factory outlet” as applied to the shoes he is marketing so long as he uses the words or term in their primary meanings in a manner which causes no confusion. Examples of manner in which such usage would be fair and non-confusing are to be found in the case of Bernstein v. Friedman, 1945, 62 Wyo. 16, 160 P.2d 227, 233.

As stated in the case of Bernstein v. Friedman, supra, the law applicable to cases such as this appears to be well settled, the difficulties attending the determination of individual cases arising from the facts of each. The general law is to be found in many authorities, examples of which would be 41A Tex.Jur., p. 434, “Trademarks, Trade Names, Etc.”, sec. 19, “Unfair Competition”, and other sections under the article; 87 C.J.S. “Trade-Marks, Trade-Names, and Unfair Competition” § 109, “Name in Which Business Conducted”, p. 372 et seq.; 52 Am.Jur., p. 545, “Trademarks, Tradenames, Etc.”, sec. 59, “(Particular Subjects of Description) Use or Purpose”, and sec. 60, “ — Trade or Business”, and other sections under the article, including the citations to A.L.R. See also Wm. Walker Co. v. Pocatello Monument Co., 1951, 71 Idaho 294, 230 P.2d 701.

The cause is remanded to the trial court for entry of a judgment which enjoins any use by appellant Rogers of the words “factory outlet” in the name of his store, and further enjoining him in connection with advertising from using said words other than in their primary meanings, i. e., that savings effected through his purchase of merchandise direct from the factory for sale to the public are passed on to the customers of his store.


author: DENTON, Chief Justice.

text:
    Alonzo Larue WARD III v. Susan Gray WARD.
    No. 7135.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 11, 1961.
    Rehearing Denied Jan. 8, 1962.

      Sarah Daniels and Wm. Andress, Jr., Dallas, for appellant.
    Goldberg, Fonville, Gump & Strauss, Dallas, for appellee.
   DENTON, Chief Justice.

This is a divorce case which resulted in the plaintiff being granted a divorce from the defendant. The case was tried before the court without the intervention of a jury. The defendant perfected this appeal and contends the petition and evidence show plaintiff had not performed her marriage contract since the denial of a prior divorce, hence she does not now come into court with clean hands; that certain alleged acts of defendant are insufficient to • constitute cruelty as grounds for a divorce.; and that the proof offered fails to meet the full and satisfactory evidence requirement ■made in Article 4632, Vernon’s Ann.Civ. St. Upon defendant’s request, the trial court filed findings of fact and conclusions of law. The. parties will be referred to as they appeared in the trial court.

The present suit was plaintiff’s second divorce case filed against the defendant. Her first case resulted in a divorce being denied on June 23, 1960. Thereafter, on September 28, 1960 the present suit was filed. The original petition and amended original petitions show that the parties had ■not lived together as husband and wife since the first suit for divorce was denied. Defendant urges that the refusal of the plaintiff to resume marital relations constituted a failure to perform her marital contract, and urges the defense of recrimination as a bar to the divorce. The defendant takes the position that in as much as the plaintiff remained separated from him after the first divorce was denied, she performed no duties as a wife and therefore she can not complain that defendant had not performed the marriage contract as a ground for her divorce. Mrs. Ward testified she refused to live with Mr. Ward because of his actions toward their two small daughters immediately following the first trial. She testified, and the trial court so found, that Mr. Ward forcibly took the children from her and sent them to Denver, Colorado within four hours after the divorce was denied on June 23, 1960. He did not return the children himself, but plaintiff went to Denver and returned with the children to Dallas on July 16, 1960. The plaintiff further testified, and the trial court found as a fact, that during the period the children were in Denver the defendant inferred to the plaintiff that the children would not be returned unless plaintiff resumed living with the defendant.

It has long been established that recriminátion as a valid defense must arise out of the fact that the acts or conduct for which the plaintiff seeks a divorce were induced by or in retaliation of plaintiff's conduct. Trigg v. Trigg (Tex.Civ.App.) 18 S.W.313. It is also settled that the misconduct of plaintiff in order to defeat the right to a divorce, while it need not be of equal degree with that of the defendant, must be of the same general nature and such as is reasonably calculated to provoke the misconduct of the defendant. Staples v. Staples (Tex.Civ.App.) 136 S.W. 120; Hutt v. Hutt (Tex.Civ.App.) 76 S.W.2d 567; Carter v. Carter, (Tex.Civ.App.) 151 S.W.2d 884.

The only course of conduct on the part of plaintiff for which defendant seeks to invoke the defense of recrimination is her refusal to resume living with him. The defendant takes the position that in taking the children to Denver he was doing something he had a legal right to do as the father of the children. Technically he is correct, but under the circumstances and manner in which he took the children it can not be said that such conduct fosters good marital relations. The fact the defendant purchased the children’s airplane tickets under assumed names the day before the first divorce was denied strengthens this conclusion. It was a preconceived plan to harass the plaintiff, who was obviously at that time under an emotional strain. We conclude the facts in this case do not make it one to which the defense of recrimination properly applies. The act of plaintiff complained of was not one which induced these acts of defendant. In fact, the evidence reflects that these acts of defendant induced or provoked the plaintiff to act as she did. The evidence supports the trial court’s finding that plaintiff was justified in maintaining a separate residence from the defendant under the circumstances.

By the next five points of error defendant contends that certain acts of, misconduct on his part are not sufficient for grounds for divorce. Because of their nature these points will be discussed together. These alleged acts include: taking the children from the plaintiff; the inference of a threat of the defendant that the children would be returned only on plaintiff’s resuming her marital duties; and defendant’s accusations concerning plaintiff’s conduct. In its findings and conclusions the trial court found defendant had committed these various acts, and that each of such acts was of such a nature as to render their further living together insupportable. Among these findings, the court found defendant falsely accused plaintiff of infidelity. Plaintiff’s testimony to this effect was corroborated by other witnesses. Although defendant denied making this accusation, the trial court’s finding is supported by the evidence. It is well settled that a false accusation by a husband against a wife of infidelity is sufficient ground for a divorce. See 20 Tex.Jur.2d, Sec. 20, page 368 and cases therein cited.

Whether or not these alleged acts of defendant were of such a nature as to render living together of plaintiff and defendant insupportable were questions of fact to be determined by the trial court. The trial court determined the conduct on the part of defendant was of such a nature. After reviewing the statement of facts and the court’s findings and conclusions, we are of the opinion the evidence supports the court’s findings and its judgment in granting the divorce.

Defendant next makes the contention that the divorce judgment is not supported by full and satisfactory evidence as required by Art. 4632, V.A.C.S. That a divorce may be granted only on such evidence can not be disputed. The trial court in granting the divorce found that the evidence was full and satisfactory. We are called upon to examine the evidence to determine whether or not the facts testified to support the conclusion of legal cruelty and also to determine whether or not such facts have been sufficiently developed to meet the requirement of Art. 4632. In order to do so we must examine the statement of facts. Although we are not bound by the trial court’s findings, they are entitled to great weight by this Court. Where the testimony is conflicting we have no authority to pass on the credibility of the witnesses and the weight to be given their testimony. In the absence of a showing of an abuse of discretion by the trial court, its findings will not be disturbed on appeal. Brown v. Brown (Tex.Civ.App.) 190 S.W.2d 730; Moon v. Moon (Tex.Civ.App.) 186 S.W.2d 362; Turner v. Turner (Tex.Civ.App.) 289 S.W.2d 836, and cases therein cited. After reviewing the complete record we can not say the trial court abused its discretion. We are therefore unwilling to disturb those findings.

The facts testified to by the plaintiff and other corroborating witnesses, if believed, were legally sufficient to support the divorce decree. A careful review of the testimony leads us to the conclusion that plaintiff’s evidence is of sufficient character and quality to support the action of the trial court in granting the divorce.

There being no error reflected in the record, the judgment of the trial court is affirmed.


author: WALTER, Justice.

text:
    Fred C. CULLUM, Appellant, v. G. M. HEINZELMANN, Appellee.
    No. 3650.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 27, 1961.

    Rehearing Denied Jan. 5, 1962.

      Wagstaff, Harwell, Alvis & Pope, Abilene, Pat Beene, Ivanhoe, for appellant.
    Ross H. Hemphill, Dallas, for appellee.
   WALTER, Justice.

G. M. Heinzelmann filed suit against Fred C. Cullum in trespass to try title. On a favorable verdict, judgment was rendered for Heinzelmann for $1,500.00 damages and title to and possession of the property.

Cullum has appealed, contending the court erred in overruling his motions for an instructed verdict and judgment notwithstanding the verdict. He also contends the court erred in submitting issues under the ten and twenty-five year statutes of limitation and issues on boundary and damages because there was no evidence to warrant their submission.

The Cullum property is located east of the Heinzelmann property and is known as the Snyder Shopping Center. This controversy is over a small strip of land between their properties. Heinzelmann contends the east boundary line of the strip in controversy is the east boundary line of his property. Cullum contends the west boundary of the strip is the west boundary line of his property. We agree with the following statement in appellant’s brief: “The evidence showed the entire controversy as to the location of this tract to depend upon the location of the Southeast corner of Section 181, Block 3, H. & G. N. RR Co. Surveys, Scurry County, Texas.” The jury answered that this corner was located at a point fixed by Heinzelmann’s surveyor, Darby. They also found for Heinzelmann on issues under the ten and twenty-five year statutes of limitations.' Cullum contends there was no evidence to support such answers. Our Supreme Court in Barker v. Coastal Builders, 153 Tex. 540, 271 S.W.2d 798, 799, speaking through Justice Griffin, said: “In considering the evidence to determine whether there is evidence to support the jury’s answer to Special Issue No. One, we must consider that evidence most favorable to the Barkers, as they were the party prevailing in the trial court. Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357; Hickman v. Hickman, 149 Tex. 439, 234 S.W.2d 410; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Schiller v. Elick, 150 Tex. 363, 240 S.W.2d 997.” We must, therefore, consider the evidence in the light most favorable to Heinzelmann.

We are of the opinion that location of the boundary presents the controlling issue in the case and that it will not be necessary to discuss appellant’s points on limitation. Guy Stoker had lived in Scurry County about thirty years. He had worked for a licensed surveyor for about ten years. He had served as County Surveyor from about 1943 until 1950 and was commissioned by the State to survey land. He testified substantially as follows: that he made surveys in the Warren Crest Addition, which is located west of the Heinzel-mann tract; he pointed out to Heinzel-mann his boundaries when Heinzelmann purchased the property in 1950; in making surveys in Warran Crest, surveyors started with the. southeast corner of Section 181, which corner was marked with a surveyor’s monument in the form of a steel stake. After the Big Spring-Snyder Highway was paved, the steel stake used to designate said corner could not be located. The steel stakes in the Warren Crest had been used by him and other surveyors. He located a row of these stakes in the east fence line of the Warren Crest, and some in front of the Harrell place, also located in Warren Crest; that he knew these stakes had been in front of the Harrell place since 1950; that he found a steel stake on every corner of the Ed Miller tract, which is located in Warren Crest. If one cannot locate the stake at the southeast corner of Section 181, a surveyor could start with the stakes in the Warren Crest and survey back and locate the southeast corner of Section 181. Since the filing of this suit, he has located the stakes in the Warren Crest and has made a survey on the ground from the Warren Crest to the Heinzelmann tract. He made this survey on the ground with surveyor Darby. He found the east boundary line of the Heinzelmann tract to be two or three feet east of the old fence that was torn down by Cullum.

B. F. Darby, Jr., a licensed state land surveyor, testified substantially as follows: that at the request of Heinzelmann and his attorney in November, 1960, he did some surveying for them and located the southeast corner of said Section 181; he prepared a plat which was introduced in evidence showing his work; that according to his plat the east boundary line of the Heinzelmann property is 2.7 feet east of the old fence line runing north and south on the east side of Heinzelmann’s property and the west side of Cullum’s property. The jury found that the southeast corner of Section 181 was located at the point fixed by Darby.

■ A careful study of the facts and circumstances in evidence leads us to the conclusion that there was evidence of probative force upon which the jury based their answer to the boundary issue.

We find no evidence to support the judgment awarding Heinzelmann $1,500.00. We find no evidence which would support a verdict for temporary or permanent damages. This court held in City of Abilene v. Walker, 309 S.W.2d 494, that the measure of damages in cases of temporary damage to real estate is the reduced value, or reduced productivity, of the land after the injury, plus the cost of restoring the property to its prior condition, and that temporary damages could be recovered only for the damages that had accrued up to the trial. The rule for recovering damages for permanent injuries to land is as follows: “If the land has been permanently affected, but its value has not been totally destroyed,' the measure of damages is the difference between its actual cash or market value immediately preceding the injury and such value immediately thereafter, with interest.” 13 Tex.Jur. 161. When Heinzelmann was asked, “What do you estimate the value of your property to be today, as compared with what it was when you bought it?”, he answered, “I don’t have any idea. I don’t know what property values up there are,”

The judgment, insofar as it awards Heinzelmann title and possession to the disputed strip of land, is affirmed. Insofar as it awards Heinzelmann $1,500.00 damages, the judgment is reversed and judgment is rendered for appellant.

The judgment is affirmed in part and reversed and rendered in part.


author: RENFRO, Justice.

text:
    Jack HUBBELL, Appellant, v. Merle E. LAMBERT, Appellee.
    No. 16264.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 17, 1961.

      Gerald E. Stockard, Denton, for appellant.
    Robert Buntyn, Denton (in trial court), for appellee.
   RENFRO, Justice.

Merle E. Lambert brought suit against Lee E. Newsom et ux. and Jack Hubbell, in which he alleged that Hubbell and New-som entered into a mechanic’s and material-men’s lien contract under the terms of which Hubbell was to erect and construct improvements to the value of $20,000 on a certain tract of land in Denton County, said contract being attached as Exhibit “A”; that Lambert made a subcontract with “defendants” under the terms of which he was to furnish the labor and mortar for the outside brick work. He alleged that after allowing certain credits “defendants” were indebted to him in the sum of $611.50.

Hubbell filed a plea of privilege to have the suit transferred to a county court at law of Dallas County.

In his controverting affidavit plaintiff alleged that the improvements were made on land located in Denton County; the consideration for the contract was due and payable in Denton County; and the majority of the defendants resided in Denton County, thus invoking exceptions 12, 5 and 4, Article 1995, Vernon’s Ann.Tex.Civ.St.

At the hearing on the plea Lambert testified he made his trade with Newsom; he never met Hubbell until the work was under way; he learned that Hubbell was the architect on the job. He offered no evidence that either Newsom or Hubbell was indebted to him in any amount. He merely testified he made a trade with Newsom and did some masonry work on a house at Lake Dallas in Denton County.

Plaintiff did not sustain venue under exception 4 for he did not prove that he had a cause of action against a resident defendant. In fact, he did not prove that he had a cause of action against any one for he did not testify that any one owed him anything. Neither can venue be sustained under exception 5 for neither his pleading nor his proof showed an agreement in writing or otherwise for payment of any consideration by either defendant in Denton County. Plaintiff did not plead that he had a lien on the property and did not offer proof of any lien, hence could not maintain venue in Denton County under exception 12.

The burden rested upon the plaintiff to allege and prove that his case came within one of the exceptions to the general venue statute. Since he failed to meet said burden, the trial court erred in overruling defendant’s plea of privilege.

The order of the trial court is reversed and the cause hereby ordered transferred to a county court at law in Dallas County. Texas.


author: YOUNG, Justice.

text:
    V. L. WARE, Appellant, v. J. S. PAXTON et ux., Appellees.
    No. 15779.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 27, 1961.
    Rehearing Denied Dec. 15, 1961.
    Allen Melton and George M. Elliott, Dallas, for appellant.
    Fritz & Vinson, Dallas, for appellees.
   YOUNG, Justice.

This is a second appeal of appellant’s suit against appellees of date December 29, 1950 on a note for $3,048, foreclosure of chattel mortgage and reasonable attorney’s fees; countered by the Paxtons’ cross-action for double the amount of usurious charges allegedly paid within two years (Vernon’s Ann.Civ.St. Art. 5073); also for damages for claimed unreasonable collection efforts. See 266 S.W.2d 218, where the Eastland Court sets forth in detail the facts antecedent to first trial and the issues there raised and considered. The District Court on first trial had rendered judgment for appellees for $181.84; finding usury in amount of $936.40 which the East-land Court concluded was not sustained by the record, and reversed the case for further development of amount of usury, if any, holding in such connection that “the execution of a new note or obligation to the original lender which included unpaid usurious interest made to the borrower on a prior indebtedness is not payment of such usurious interest;” and that the right to recover double the amount of usury under Art. 5073 is confined to usurious interest charges which have been actually paid.

On this second trial, likewise to a jury, the court rendered judgment denying any recovery on the note in suit, finding usurious interest in the amount of $690 paid within two years from date of cross-action on which the Paxtons were entitled to double recovery; with a net result after due offsets and credits of “$861.66 double damages for usurious interest, computed as reflected in Exhibit A prepared by the Court and attached hereto”. Also, based on jury answers there was an award to the Paxtons of $15,000 actual damages for unreasonable collection efforts and $10,000 as exemplary damages together with legal interest from date of judgment of November 9, 1959.

Prior to the second trial of 1959 and before introduction of evidence plaintiff (appellant) filed first and second trial amendments, reducing his cause of action to-a balance of $1657.10 his declared intention being “to remove from the lawsuit any issue pending as to usurious interest, brokerage fees, insurance premiums, or any other charges”; claiming that he sought judgment only for that principal balance on the monies loaned by him with legal interest from December 29, 1950, together with foreclosure of chattel mortgage. He now vigorously asserts through numerous points that by thus reducing his claim by $1340.90 as of December 29, 1950, he has eliminated all usury as a defense. The trial court properly rejected this plea, which is untenable as a matter of law; as well as being inimical to many jury findings. We deem it unnecessary to detail the contents of the present jury verdict, embracing some 46 issues and answers; they being essentially similar to those fully discussed on first appeal. Issues 26 and 27 for example which appellant does not seriously attack, find that Ware failed to give Paxton credit for $1148 on the loans involved. Appel-lees claim the note sued upon of $3048 was usurious in its entirety; and appellant in the same connection states that “had Pax-ton paid Ware the full $3048 he would have paid usury”. He cannot by an ex parte determination of over-charges thus eliminate entirely the question of usury.

The instant trial did not follow usual procedure. Plaintiff Ware first placed the Paxtons on the stand who admitted signing the $3048 note of December 29, 1950, put same into evidence and rested. Paxton then called Ware to the stand, who produced various notes, ledger sheets, contracts for loans, credit insurance applications and other papers, reflecting the continuous series of loan transactions from June 7, 1947 to December 29, 1950; all of which were introduced for the limited purpose of demonstrating the amounts that the Paxtons were required to sign for and also amounts Ware admitted as having been repaid according to his records. Paxton then took the stand, testifying to various differences in the amounts received by him in contrast to the amounts reflected in the records of plaintiff Ware, for example in the Mercantile Bank Loan of January 9, 1950 ($3744) the $576 received by Ware in such transaction being treated on previous appeal as “additional interest”. Paxton likewise called to the stand one Canterbury, the accountant for Ware, who testified to an itemization from the latter’s records of the amounts advanced to Paxton and repaid by him, based on conversation between himself, (Canterbury) and Ware; making summary thereof which reflected a balance due Ware of $1697.10 — the amount now sued for under trial amendments» -

• Appellant' presents 28 points on appeal, arguing same in groups. They do not refer to any assignment of error in amended motion for new trial to which they are germane as required by Rule 418, Tex.Rules Civ.Proc.; in fact appellees charge that many of them are not covered by the 253 assignments of error at all and therefore should be stricken. Other deficiencies of briefing rules are pointed out which we do not pause to discuss. For notwithstanding this, it is manifest from appellant’s brief as a whole, that the prime consideration on this appeal relates to the jury findings of damages, both actual and exemplary.

In appellant’s first series of points, he asserts that Paxton accepted above figures of Canterbury as correct, vouching for him as a witness. However, this would not preclude plaintiffs from contradicting the testimony of Canterbury as distinguished from attacking his credibility. Aetna Life Insurance Co. v. Love, Tex.Civ.App., 149 S.W.2d 1071. And in the testimony of Pax-ton he alludes to several differences of fact between his own version as to amounts received and repaid to Ware, in the latter column alone these differences amounting to $1148 (Jury answer No. 27). Furthermore, in issues and answers 2 through 25 (only generally attacked by appellant) are findings favorable to the Paxtons’ plea of usury; and findings 28 through 32 are in accord with Paxton’s testimony that he had riot received as much as appellant had stated in connection with transaction of several dates. In sum, the trial court’s judgment (Exhibit A) which fixes March 22, 1949 as the cut-off date for double damages, that between that date and December 13, 1949 Paxton had actually paid in cash, as interest, $690 more than he received for which Paxton was entitled to double damages totalling $1380. Exhibit A further reflects that in the period of January 1950 to December 29, 1950, Paxton received $1682.60 more than he had repaid; and after subtracting this $1682.60 from the totals of $1148, $1380, and $6.26 (over payment pri- or to March 21, 1949) the trial court arrived at an excess in favor of Paxton of $851.66 designated by the trial court as “net usury judgment.”

On the other hand it is the contention of appellant (points 10 through 13) that the effect of jury answers 26 and 27 was to establish $1148 as in full of all credits to which appellees were entitled; - which amount subtracted from his claimed balance due of $1697.10 left $549.50 for which he should have judgment; necessarily precluding any recovery for usurious interest in this lawsuit. In this connection appellant, in reply brief, submits an exhibit parallel to the court’s Exhibit A, fixing March 31, 1951 as the cut-off date for establishment of double damages; obviously following the finding in Ware v. Paxton, first, appeal, to such effect. Appellee assumes March 21, 1951 as the true date of his original cross-action; while in the transcript there appears another date of filing — April 2, 1951. The instant judgment fixes March 21, 1951 as the cut-off date for findings of double damages as to which no point of error is made and must be deemed controlling. The difference in dates would af- ■ feet only Paxton’s $200 payment of March 22, 1949, which amount, even if barred,. would still constitute a credit item due. appellees of that amount. Adleson v. B. F. Dittmar Co. (Ad.Sup.), 124 Tex. 564, 80 S.W.2d 939.

Jury answers to issues 34 through 46 were as follows: that Ware made unreasonable collection contacts upon J. S. Paxton between March 14, 1949 and March 14, 1951 for purpose of collecting the loans; that after such contacts Paxton suffered mental or emotional pain and physical illness; Paxton’s resulting damages amounting to $10,000. Ware made unreasonable contacts between March 14, 1949 and March 14, 1951 on Bertha L. Paxton to collect the loans; after such contacts Mrs. Paxton suffered mental or emotional pain and physical suffering; such collection contacts by Ware were a proximate cause of such mental or emotional pain and physical illness; resulted damages to Mrs. Paxton was $5,-000; Ware made unreasonable contacts on Mrs. Paxton in January 1956 to collect the loans; after such contacts Mrs. Paxton suffered mental or emotional pain and physical illness; such collection efforts of Ware were a proximate cause of the mental or emotional pain and physical illness of Mrs. Paxton; resulted damages to Mrs. Paxton was $5,000. Ware acted with malice in making the various collection efforts aforesaid; and the amount of exemplary, damages that should be awarded against Ware was fixed at $10,000. The cross-action of appellees being for $25,000 only, the total of actual damages was reduced to that amount.

Appellant’s points 14 through 22 are to effect that jury answers on actual damages were each against “great weight and preponderance of the evidence”; the answer on exemplary damages being unsupported by any “evidence of malicious collection efforts on the part of V. L. Ware”; and likewise were so grossly excessive as to manifest passion and prejudice and in complete disregard of the evidence.

Turning to the record, it was the testimony of the Paxtons living near Mid-lothian, that from late in 1949 to late 1950 Ware made ’phone calls to the Paxton farm, reaching Mrs. Paxton several times; and Paxton on one occasion (December 5, 1950) leaving his ’phone number on several other occasions which Paxton answered on returning home. Concerning the December 1950 episode, he related a ’phone call from Ware, saying that he was behind with his payments, threatening to send the Sheriff down to pick up everything he had; that as a result: “It just seemed like it went all over me. Well, I just turned blind and would have fell over and the boys caught me, and I just went to Waxahachie to a doctor. * * * Well, my heart just quit beating and when I come up it felt like everything — it just wouldn’t work. Well, the boys took me to the doctor in Waxa-hachie * * * he’s dead now ⅜ * * Dr. Jackson”. Paxton, 67 years of age at time of trial, testified to having had no doctor for many years prior to the experience above mentioned; and in lengthy examination testified to subsequent illnesses; that his heart apparently stopped at times with pain there so that he could hardly breathe; naming several doctors he had gone to subsequently for treatment of such condition and other ailments, now having to seek medical attention every 6 to 8 weeks; that after the attack of December 5, 1950 it was some 18 months before he could “saw a 2 x 6”, not being since able to work much in farming or in the exterminating business, his boys doing it for him. In 1948 he had netted an income of $3640, in 1950, $2500. After the attack of December 5, 1950 his income had dropped to net loss in 1951 and 1952 of $650.- In 1953 there was a net profit of $1850; in 1954 a net loss of $1100; in 1955 through 1958, net profits of $2100, $1400 and $1,000 for those years respectively.

In issue 38, the jury likewise answered that between March 14, 1949 and March 14, 1951 Ware made unreasonable collection efforts on Bertha Paxton for the purpose of collecting the loans herein; also (issue 41) in January 1956. Paxton testified at some length with respect to the condition of his wife’s health between these dates, although Mrs. Paxton relates no instances other than a usual run of ’phone calls and letters for her husband from Ware. Relative to her contacts with Ware during 1949-1950 she testified on direct examination:

"Q. And state the facts as to what else if anything, was said in those conversations? A. Well, I don’t remember particularly as to what was said except one where he asked me where he was and I told him that he was in Longview, and he says, ‘What’s he doing down there?’ and I said, ‘Well, he’s exterminating, I suppose’ and he said ‘What is he doing — exterminating or messing with lumber ?’ and he said he wanted the number where he might reach him." Upon cross-examination— ■
“Q. And you would not say, would you, that this phone call, other than for your nervous condition at the time, would have upset you, would it? A. It might not have, if it hadn’t been for my condition, but this is the point of that conversation * * * it seemed that every time we got a penny it went to Mr. Ware, and I was there in the country, and I didn’t understand whether Mr. Paxton sent in * * * whether he sent in his payments, but where he was and what he was a’doin’ and it wasn’t any of his business what he was doing * * * whatever he done to make a livin’ wasn’t no concern of Mr. Ware’s.”

Re-direct examination:

“Q. Mrs. Paxton, when Counsel was questioning you, you mentioned about Mr. Ware’s tone of voice * * * it was Mr. Ware’s tone of voice that was also irritating in this matter, and I’ll ask you what his tone of voice was when he made these telephone calls to you in 1950 about the note? A. Well, a sarcastic tone of voice * * * resenting or something.
“Q. What was the last part? A. Sarcastic.
“Q. And what did you say after that? A. Resentment or something of the other.”

Mrs. Paxton stated that she had already been to a doctor before the 1949-1950 calls from Ware, but that above narrated conversations made her particularly nervous, developing severe headaches and nervous tension; having almost recovered from such condition when in January 1956 Ware visited her at her home in Bonham. She testified:

“Q. And what did he state at that time or say? A. Well, he said he wanted to talk to me, and I said, ‘Well, I thought this thing was over with’ and he said it wasn’t over with and it wouldn’t be until he got $3,000 out of it, and he said he wanted to see Mr. Paxton, and he could put him in jail, but he didn’t want to do that, he wanted to see him, and he said that we’d * * * he suggested that we come to see his lawyer, and I told him that we had a lawyer of our own that we would see, and he said that we didn’t have Mr. Fritz any more * * * he was not going to represent us any more, and I just * * * well * * *_»

After above visit she said that all her old symptoms returned, head -and backaches that she could hardly bear; of continued medical treatment, undergoing hysterectomy; moving back to Dallas with further treatment by doctors for symptoms of menopause when Ware’s telephone calls began. She was 55 years of age at the time of the trial.

We need not dwell further on the physical ailments of Mrs. Paxton. Appellant grants that each may have been in poor health, but that such condition had no causal connection with any collection efforts. However,- Dr. Robert A. Jones, their family doctor over the years, testified that emotional stress would probably aggravate the symptoms and disorders that he found in each; that in his opinion as to Mrs. Paxton, half a dozen phone calls -by a bill collector might very well cause a nervous breakdown; stating that: “I think her nervous tension might well have been increased. It is entirely reasonable for somebody having a bill collector at them would be more nervous than somebody else who didn’t.” Dr. Jackson, who lived at Waxahachie, and who had treated Mr. Paxton for his claimed heart attack of December 5, 1950, died soon thereafter; and while Dr. Jones at no time later treated Paxton for a heart condition, in answer to a hypothetical question stated that the symptoms described by Mr. Paxton were those of coronary thrombosis angina pecto-ris or heart failure.

Appellant’s points 14 through 22 are generally to effect that jury answers 34 through 44 (unreasonable collection efforts) are against the great weight and preponderance of the evidence, his premise being that there is no basis in this record for any findings of wrongful collection contacts at all. In this connection he essays to compile “every statement of the appellant which is relied upon by appellees for the recovery of actual damages and the further recovery of exemplary damages for wrongful collection effort”. In turn we have been duty bound to closely examine quite a voluminous record.

Conversely, it is seen under Exhibit A (the court’s re-capitulation of Ware’s advances and Paxton’s payments) that intervening March 22, 1949 and December 13, 1949 the latter repaid to Ware the sum of $690 more than monies advanced, constituting the basis of his recovery under Art. 5073. Appellees point out that collection efforts, whether reasonable or unreasonable, depends on the cir-circumstances of the particular case; and that “collection efforts which might not be considered unreasonable in an effort to collect a lawful claim, might be entirely unreasonable in an effort to collect a void claim.” Appellant cites Duty v. General Finance Company (Sup.) 154 Tex. 16, 273 S.W.2d 64 as requiring collection efforts far more severe than reflected in this record as the test of liability. But the Supreme Court was simply dealing with the collection efforts there pled not setting same up as a standard; going on to say “besides, we do not hold that by reasonable efforts to collect usury a creditor runs the risk of liability for damages.” As in previous trial, we conclude that there is some evidence of probative force involving the issues of unreasonable collection efforts. “The mere fact that a verdict is against the preponderance of the evidence will not authorize the Court of Civil Appeals to set it aside, if there is evidence to support it. The appellate court will set aside the verdict and findings of the jury in cases where they are so against such a preponderance of the evidence as to be clearly wrong, show passion or prejudice, or in such obvious conflict with the justice of the case as to render them unconscionable.” Federal Underwriters Exchange v. Hinkle, Tex.Civ.App., 187 S.W.2d 122, p. 124. See also 4 Tex.Jur.2d p. 402.

Appellant asserts gross excessiveness of the jury findings on exemplary damages, such as to manifest passion and prejudice and a complete disregard of the evidence. He points out that this record contains no studied program of harassment, no abusive language, threats or violence, no daily personal contacts or phone calls at all hours such as is reflected in Advance Loan Service v. Mandik, Tex.Civ.App. (1957) 306 S.W.2d 754, reh. den.; Duty v. General Finance Company (supra); Wright v. E-Z Finance Company, Tex.Civ.App. (1954) 267 S.W.2d 602; Western Guaranty Loan Company v. Dean, Tex.Civ.App. (1957) 309 S.W.2d 857, reh. den.; Harned v. E-Z Finance Company, (Sup.) 151 Tex. 641, 254 S.W.2d 81; Allison v. Simmons, Tex.Civ.App. (1957) 306 S.W.2d 206. In fact on part of Mrs. Paxton during 1949-51 she says that Ware’s tone of voice towards her was no more than “sarcastic”; and finally that the letters from Ware were “probably” four letters in one month. The Supreme Court case of Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022 is cited which quotes with approval from 25 C.J.S. Damages § 123, p. 726 that “The fact that an act is unlawful is not of itself ground for an award of exemplary or punitive damages. The act complained of not only must be unlawful but also must partake of a wanton and malicious nature, or, as sometimes stated, somewhat of a criminal or wanton nature, and an act will not be deemed malicious, and so warranting punitive damages, merely because it is unlawful or wrongful.”

In addition to the foregoing, it should be noted that jury issues and answers relative to Mrs. Paxton’s recovery was for $5,000 for unreasonable collection efforts from Ware between March 14, 1949, and March 14, 1951, and $5,000 for similar contacts made by Ware in January 1956. The trial court, following the jury verdict, eliminated $5,000 of the whole recovery, as being in excess of the total amount sued for. The resulting situation is rather anomalous in that we may assume that the jury answer of $10,000 exemplary damages is based upon and has some reasonable relation to the total amount of actual damages found by the jury. We are not unmindful of the broad discretion on the part of a jury in awarding exemplary damages, but we also are cognizant of the rule which places upon us the burden of evaluating such jury findings of exemplary damages on basis of assignments challenging exces-siveness thereof in the light of the overall testimony. We have given careful consideration to all factors heretofore discussed, and it is our opinion that the amount of the jury’s award of $10,000 for exemplary damages is excessive to the extent of $5,000.

Points 25, 26, 27 and 28 may be disposed of briefly. (1) The statement of facts does not bear out the charge that the conversation of Ware with Mrs. Paxton in January 1956 involved “a settlement proposal”. In fact, no discussion with respect to a settlement of the case is shown. (2) Nor do we find in the record any “voluntary statement of Paxton to effect that he accepted the figures of Ware’s bookkeeper, Canterbury, as correct; and (3) it may be that the testimony of the Paxtons involved contradictions and inconsistencies. Even so, as a whole they did not lack probative force; and we agree with appellant that “if there were contradictions, it was within the province of the jury to determine the true facts.” The points are accordingly overruled.

If appellees desire to file a remittitur of $5,000 within fifteen days from this date, judgment of the trial court will be so reformed and affirmed, otherwise said judgment will be reversed and remanded for another trial. Rule 440, T.R.C.P.; Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835.

On Rehearing.

Above remittitur having been duly filed, the judgment under review has been reformed in accordance and as reformed is in all things affirmed.

      . In Appellant’s parallel exhibit he uses the trial court’s figures (Exhibit A) of amounts received by Paxton and repaid to Ware. It thereby demonstrates that dur- ' ing the entire period Paxton was advanced $4,700.00, and repaid $3,507.50, leaving a balance due to Ware on all transactions of $1192.50; that subtracting from the sum the jury finding of $1148 for which Paxton was not given credit, leaves $44.60 to Ware; that Paxton was due an allowable credit of $206.26 for overpayment of principal prior to the two year period, and when the $44.60 is subtracted therefrom, leaves a balance due Paxton of $151.66.