text:
    Mary Juanita LaPLACE, Appellant, v. Edward H. LaPLACE, Jr., Appellee.
    No. 7636.
    Court of Civil Appeals of Texas. Texarkana.
    April 13, 1965.
    Burt Barr, Dallas, for appellant.
    Jay S. Fichtner, Dallas, for appellee.
   DAVIS, Justice.

Appellant-defendant, Mary Juanita La-Place, was granted a divorce from appel-lee-plaintiff on August 29, 1963. Appellant was granted the custody of their two minor children, Michael Dane LaPlace, and Mark Steven LaPlace, and the appel-lee was given the right of reasonable visitations. On July 10, 1964, appellee filed a motion to modify the judgment regarding the visitations. The only answer filed by the appellant was a plea in abatement alleging that appellee’s demands amounts to a change of custody and that same was cognizable before the Juvenile Court of Dallas County, Texas. The trial court overruled the plea in abatement and modified the judgment to allow certain visitations with appellee of two days each six weeks, with reasonable notice to the appellant, and granted the appellee two week’s visitations in Chicago, Illinois, provided the appellee would file a $350 bond to guarantee their return. Appellant has perfected her appeal and brings forward three points of error.

By her first point, appellant says the trial court erred in granting the certain visitations without a showing of material change in conditions affecting the best interests of the minors. The appellant did not file a statement of facts, bills of exceptions, or findings of fact and conclusions of law. Under the record in this case, every presumption must be indulged in favor of the trial court’s findings and judgment, and that the judgment is based upon the sufficiency of evidence. Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363; Franke v. Franke (Ct.Civ.App.), 373 S.W.2d 891, N.W.H. The point is overruled.

Appellant’s second point is without any merit, and it is overruled.

By her third point, appellant says the trial court erred by failing to find findings of fact and conclusions of law. After the judgment was signed and entered, appellant prepared her motion for the court to file findings of fact and conclusions of law, and filed her motion with the deputy district clerk. She later filed her second request with the deputy district clerk. There is no showing that appellant ever presented the motion or the request to the judge who tried the case. This does not comply with Rule 297, Texas Rules of Civil Procedure. Frankfurt v. Decker (Tex.Civ.App.) 180 S.W.2d 985, N.W.H.; Birdwell v. Pacific Finance Corp. (Tex.Civ.App.) 259 S.W.2d 957, N.W.H.; Spradlin v. Rosebud Feed & Grain Co., (Tex.Civ.App.) 294 S.W.2d 301, W.R.,N.R.E. See also Steppe v. O’Day (Tex.Civ.App.), 315 S.W.2d 599, W.R.,N.R.E.; 4 T.J. 2d 37, Sec. 505. The point is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    Antonio GONZALEZ, Sr., Individually and as Next Friend of Antonio Gonzalez, Jr., Appellant, v. Cecil Eugene PERRY, Appellee.
    No. 14370.
    Court of Civil Appeals of Texas. San Antonio.
    April 14, 1965.
    Rehearing Denied May 12, 1965.

      Putman & Putman, San Antonio, Jose R. Gonzalez, Del Rio, for appellant.
    Hardeman, Smith & Foy, San Angelo, for appellee.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Val Verde County by Antonio Gonzalez, Sr., individually and as next friend of his minor son, Antonio Gonzalez, Jr., against Cecil Eugene Perry, seeking to recover damages for personal injuries to his son when struck by an automobile driven by Perry. The trial was to a jury and resulted in judgment that plaintiff take nothing, from which judgment plaintiff below has prosecuted this appeal.

The jury in answer to Special Issue No. 7 found that Antonio Gonzalez, Jr., at the time and place 'in question failed to keep such lookout for vehicles traveling west on East Garza Street as an ordinarily prudent person would have kept under the same or similar circumstances, and in answer to Special Issue No. 8 found that such failure was a proximate cause of the accident in question. Appellant contends that there is no evidence to support these findings. In considering this point we must view the evidence in the light most favorable to the findings of the jury.

It appears that Antonio Gonzalez, Jr., a boy sixteen years of age, and his companion, Sam Lopez, were jogging down the center of East Garza Street, going in a westerly direction toward the San Felipe High School. They were jogging and trotting down East Garza Street under instructions of the track coach of the school where they were students. The defendant below, who is appellee here, was driving his automobile on East Garza Street at about 30 or 35 miles per hour and was approaching Gonzalez and Lopez from the rear. As Perry came over a small hill in the road he saw Gonzalez and Lopez trotting down the center of the street. East Garza Street is unpaved, and is about forty or forty-five feet wide. There is no curb but the street is well defined by a furrow or ditch. The low brush and rocks along the sides make it impracticable for a pedestrian to travel anywhere but on the street itself. The street is flat and leval except of a small hill or rise about 120 to 125 yards from the place where Antonio Gonzalez, Jr., and Sam Lopez were running or trotting. As Perry approached the two boys he honked his horn. Lopez looked back and began to veer to the right side of the street. Gonzalez did not look back, but continued down the middle of the street. When Perry saw Lopez move into his right-hand lane of the street he turned his car to the left, thinking that he could only pass the boys in the left-hand lane. Just as he got opposite Gonzalez, he either fell, or ran to his left and hit Perry’s automobile on. the right side near the windshield. There was nothing to indicate that the front of the automobile struck Gonzalez. Very severe and permanent injuries were inflicted upon the head and body of the Gonzalez boy.

It has been definitely decided in this State that a pedestrian under certain circumstances and surroundings must keep a lookout to his rear for approaching automobiles. Plata v. Gohman, Tex.Civ.App., 359 S.W.2d 163. In that case this Court in a divided opinion held that Plata, who was walking along the extreme left edge of the road, was required to keep a lookout to his rear for approaching vehicles, where he had some warning that one was approaching. The writer of this opinion dissented in that case, but the Supreme Court refused an application for a writ, -n. r. e. There were more circumstances requiring Gonzalez to keep a lookout to his rear for the approaching vehicle than in the Plata case. Here the two boys were running down the middle of the street. When the horn was sounded, Lopez, who was the front runner, turned to his right and occupied the right-hand lane of the street, and Gonzalez, who was running behind him, is presumed to have seen Lopez turn into the right-hand lane. Thus Gonzalez knew that a vehicle was approaching from his rear and that Lopez was in the right-hand lane of the street. This should have been sufficient to cause Gonzalez concern as to the side on which the vehicle would attempt to pass. He did not look to the rear, but continued on down the center of the street. When the vehicle was about even with him, he turned into the left-hand lane and collided with the side of the vehicle. The evidence was sufficient to support the jury’s answer to Special Issue No. 7, to the effect that Gonzalez failed to keep a proper lookout for his own safety, and its answer to Issue No. 8, that such failure was a proximate cause of the collision. 4 Tex. Jur.2d 390-395, § 837; 7 Am.Jur.2d, § 401, p. 950. Appellee, Perry, was not negligent as a matter of law in attempting to pass these boys on his left-hand side of the street when Lopez had moved over into and occupied the right-hand lane. Reddick v. Longacre, Tex.Civ.App., 228 S.W.2d 264, ref. n. r. e.; Killen v. Stanford, Tex.Civ.App., 170 S.W.2d 792, ref. w. o. m.; Dixie Motor Coach Corp. v. Swanson, Tex.Civ.App., 41 S.W.2d 436.

In the absence of any proof to the contrary, Antonio Gonzalez, Jr., will be presumed to have had normal hearing and vision, Texas Emp. Ins. Ass’n. v. Birdwell, Tex.Civ.App., 39 S.W.2d 159; and he is presumed to have heard the horn and to have seen Sam Lopez look to his rear and move over into the right side of the street. Thus the jury was justified in believing that Gonzales should have looked back and determined the location of the approaching vehicle, and then have taken proper precaution for his own safety.

The jury convicted the Gonzalez boy of contributory negligence by its answers to Special Issues Nos. 7 and 8, which we have held were supported by sufficient evidence, and thus the trial court could have rendered no other judgment than the one it did.

However, the jury, by its answers to Special Issues Nos. 9, 10 and 11, found the Gonzalez boy guilty of contributory negligence in another particular, in that he was not running next to the left-hand edge of East Garza Street when the accident occurred, that his failure to do so was negligence, and a proximate cause of the accident. Sec. 81, Art. 6701d, Vernon’s Ann. Civ.St., imposes a duty upon a pedestrian walking or running along a highway in the following language:

“Sec. 81. (a) Where sidewalks are provided it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.
“(b) Where sidewalks are not provided any pedestrian walking along and upon a highway shall when possible walk only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction.
“(c) No person shall stand in a roadway for the purpose of soliciting a ride from the driver of any vehicle.”

The question is, does this article require a pedestrian to walk or run on the left-hand edge of the highway, or only in the left-hand lane? To put it another way, is a pedestrian who is walking or running on the left-hand side of the highway, a foot or two from the center line, complying fully with the above section?

The only common sense meaning that can be given to Sec. 81, supra, is that a pedestrian must walk near the left edge of the highway or out on the shoulder. It would be an absurd construction of Sec. 81, supra, to hold that a pedestrian can walk anywhere he pleases, so long as he is left of the center line of the highway. When the Legislature intended to describe that portion of a highway which lies to the left of the center line, as distinguished from the left edge of the highway, it used different language from that found in Sec. 81. For example, in Sec. 52 of Art. 6701d, supra, it provided that the driver of a vehicle shall drive “upon the right half of the roadway.” In Sec. 56 of this same article we find the language, “the left side of the center of the roadway.”

Special Issues Nos. 9, 10 and 11 were not subject to the criticism urged against them by appellant.

The judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    BILLY BAKER MOBILE HOMES, INC., Appellant, v. Gid FOSTER, Appellee.
    No. 11291.
    Court of Civil Appeals of Texas. Austin.
    April 28, 1965.

      Smith, Rose & Finley, San Angelo, for appellant.
    Marvin C. Hanz, San Angelo, for appel-lee.
   ARCHER, Chief Justice.

This is a suit for damages based on alleged fraud in connection with a contract for the sale of a mobile home from appellant to appellee.

On trial of this case to the jury, the jury answered that appellant’s employee, Billy Sellers, made certain material misrepresentations at the time the contract of sale was entered into, found that the mobile home, as represented to appellee, had a cash market value of $5,200.00, and that such mobile home had an actual value at the time it was delivered of $2,000.00.

Appellant filed a Motion for Judgment Non Obstante Veredicto, which was overruled by the trial court, and judgment was entered for the appellee.

Appellant then filed a Motion for New Trial, which was overruled by the trial court.

The appeal is based on 9 points as error by the trial court in rendering judgment in the absence of proof that appellant did not intend to perform the promised actions at the time such were made; in submitting and rendering judgment on the issues which inquired as to the difference between the cash market value of the mobile home as represented and the value of such as actually received; that there is no evidence or there is insufficient evidence to support the finding of the jury that the home had an actual market value of $2,000.00 at the time ■ it was delivered; to the submission of Issues 5a and 11, and finally that there is no evidence or there is insufficient evidence to support the jury’s answers to Issues Nos. 5, 6, 7, 8 and 9.

Appellant was a dealer in mobile homes. Appellee ordered a specially built trailer and the parties entered into a written contract in August 1961 and the sales price was $5,295.00, an allowance of $1400.00 on a mobile home owned by appellee. The purchase contract entered into by the parties provided:

“6. No warranties, express or implied, representations, promises or statements have been made by seller unless endorsed hereon in writing. No modification of any of the terms or conditions hereof shall be valid in any event, and the purchaser expressly waives the right to rely thereon, unless made in writing duly executed by the holder of this contract.”

On September 1, 1961 the trailer was delivered to appellee and shortly thereafter a hard rain fell and some water leaked into the interior. Appellee called appellant and one of his employees made some adjustments to the roof by the use of a sealer compound.

Later in the Fall an employee of the manufacturer of the trailer came to inspect it and to do any necessary repairs to restore the trailer from any damage caused by the rain, but appellee refused to permit any repair work.

Appellee elected to stand on the third count in his Second Amended Original Petition, asking for the measure of damages between the reasonable fair cash market value of what he actually received and what he would have received if it had been as represented to him, and waived any other counts; alleging that Sellers as agent for defendant represented to plaintiff that the mobile home would be of sound construction and one which would turn the weather including rain, would have a roof constructed of solid sheet roofing without any joints; that such representations were made and were material to the written contract and were not true, and Sellers knew they were not true, and did not then and there intend to carry out such representations hut delivered a mobile home which required sealing between the joints.

The allegations of misrepresentation relied on by appellee are covered in Special Issue No. 1, and correlative Issues Nos. 2, 3, 4 and 5, and Special Issue No. 6 and correlative Issues Nos. 8, 9 and 10.

Special Issue No. 1 reads:
“Do you find from a preponderance of the evidence that before plaintiff, Gid Foster, executed the contract for the purchase of the mobile home in question on or about August 1, 1961, Billy Sellers represented to the plaintiff, Gid Foster, that the mobile home plaintiff was purchasing from defendant would be one that would turn the rain? Answer Yes or No.
“Answer: Yes.”
Special Issue No. 6 reads:
“Do you find from a preponderance of the evidence that before plaintiff, Gid Foster, executed the contract for the purchase of the mobile home in question on or about August 1, 1961, Billy Sellers represented to the plaintiff, Gid Foster, that the mobile home plaintiff was purchasing from defendant would be one with a roof constructed of a solid sheet of roofing? Answer Yes or No.
“Answer: Yes.”

Special Issues Nos. 2 and 7 deal with the element of “scope of employment;” Nos. 4 and 9 with “falsity” and Nos. 5 and 10 with “reliance.”

Appellant objected to the charge because, under the facts of this case, it was necessary for appellee to obtain a finding that appellant did not intend to perform the promised action at the time the promises were made.

It is, we believe, the law that failure to discharge a promise of something to be done in the future is not fraud, and that, to be actionable, a false representation must be of a past or existing fact rather than a promise even though the promise is, without any excuse, later broken.

A promise made with a preconceived intention not to perform may amount to actionable fraud if the misrepresentation is material and is relied on by the other party at interest and this is a question of fact and must be proved that at the time of the making of the promise, the promisor did not intend to perform it. 25 Tex.Jur.2d, Sec. 45, page 685; Collier v. Bankston-Hall Motors, Inc., Tex.Civ.App., 267 S.W.2d 898, n. w. h.

In this case the trailer house had not been constructed but was on order to be built and delivered at a later time. The failure to perform is not itself evidence of intent not to perform. Texas Employers’ Insurance Association v. West, Tex.Civ.App., 320 S.W.2d 55, n. w. h.

Special Issue No. 12 inquired as to the reasonable cash market value of the mobile home as represented, and the jury’s answer was $5,200.00, to the submission of such issue appellant objected because there were no pleadings as to the actual cash market value, and no proof of such.

There were no allegations by appellee as to the actual cash market value of the trailer home which he traded to appellant and no proof as to the actual cash market value of such trailer home. No issue was submitted as to the market value of the trailer home traded in part exchange for the new mobile trailer home.

The measure of damages, in a case of this nature, based on fraud, is the difference between the value of that which was parted with, and the value of that received. George v. Hesse, 100 Tex. 44, 93 S.W. 107; Morriss-Buick Company v. Pondrom, 131 Tex. 98, 113 S.W.2d 889, Comm.App., Sec. B, opinion approved by the Supreme Court; Massey-Ferguson, Inc. v. Easterwood, Tex.Civ.App., 363 S.W.2d 897, er. ref., n. r. e

Issue No. 13 inquired as to the cash market-value of the trailer delivered to appellee, and the jury answered $2000.00.

We do not believe that the verdict of the jury finds reasonable support in the record.

Lee Williams, a witness for appellee, testified that in his opinion the trailer delivered was actually worth $2000.00, “if you could sell it,” but that “anybody knowing it was in that condition, they wouldn’t buy it.”

Carroll Pamplin testified that cost of repairing the trailer, even after more than three years, of the rain damage would not be more than $400.00, and of conversations he had with Mr. Foster, and that Mrs. Foster said that they would decline any repairs and were going the route of a law suit.

Cecil Peel, called by appellant, testified that he was employed by Billy Baker Mobile Homes and that in November 1961 he and Carroll Pamplin, a repairman from Chickasha Mobile Homes, inspected the trailer in Roby, Texas and went through it with Mr. Foster who showed them what was supposed to be wrong, and he saw evidences of a leak in the roof, but saw no major damage.

The witness testified that the trailer was repossessed about 3 years after it had been sold, and subsequently was sold for $3350.00 without any further major repairs.

We have discussed at some length the several phases of this appeal, for the aid, we believe, of the Court in a retrial.

The judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


author: FRASER, Chief Justice.

text:
    Earnest G. GROSS, Appellant, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Appellee.
    No. 5707.
    Court of Civil Appeals of Texas. El Paso.
    April 14, 1965.
    Rehearing Denied May 12, 1965.

      Walker F. Means, Pecos, for appellant.
    John P. Dennison, Pecos, for appellee.
   FRASER, Chief Justice.

This is an appeal from an order of the trial court sustaining special exceptions leveled at those provisions of the plaintiff-appellant’s petition which alleged grounds for and sought special and exemplary damages resulting from an alleged breach of two policies of credit life and disability insurance issued to appellant by the defendant-appellee.

The facts are as follows. Appellant had taken out the two credit life and disability policies mentioned above under which he claims the appellee was obligated to make monthly payments on two automobiles owned by the appellant in case the appellant became disabled and unable to work or engage in gainful employment. The appellant maintains that beginning July 12, 1960, and up until the present time, he has been totally and continuously disabled and unable to work or engage in any gainful employment; that after his disability occurred, appellee commenced payments in September, 1960 and kept up said payments on the automobiles for four months, but discontinued making the payments in January, 1961, and that as a result of this discontinuance of payments by the appellee the appellant was forced to give up and surrender his two automobiles to the Universal C. I. T. Credit Corporation. Appellant claims that the discontinuance of these payments was improper, and that the appellee was guilty of gross and wanton negligence, as well as oppressive and/or malicious conduct in failing to ascertain appellant’s condition; and that as a result of this failure to determine appellant’s condition and the failure by the appellee to make payments on the cars, the appellant lost not only the automobiles, but was damaged by loss of credit and loss of health. The appellee tendered into court the amount of the disability payments claimed to be due, along with the twelve per cent damages recoverable and attorneys’ fees, as provided for in Article 3.62 of the Texas Insurance Code, V.A.T.S. Judgment in these amounts was rendered for the appellant. The trial court sustained exceptions to plaintiff’s pleadings asking for the above-mentioned special and exemplary damages.

Appellant presents as points of error that the trial court erred in sustaining special exceptions to that part of his pleadings relating to special and exemplary damages, and that the trial court erred in entering judgment denying him recovery for special and exemplary damages.

We believe the action of the trial court must be sustained. The policies are not in evidence and we do not believe that appellant’s pleadings present a cause of action relative to exemplary or special damages. These special or exemplary damages are alleged to result from what the plaintiff calls oppressive or malicious conduct on the part of the appellee, and are not set forth or provided for in the insurance contract itself. Plaintiff argues that they are the natural and consequential results of ap-pellee’s wrongful cessation of payments. It is not thought that the provisions of appellant’s pleadings will suffice to sustain an action for special or exemplary damages not provided for in the contract. It is true that appellee did discontinue payments, but according to the pleadings and the briefs, the payments were contingent on the ill health or disability of appellant. It is not shown why, or in what manner, appellant expected to be able to prove that the action of the appellee amounted to an absolute repudiation or anticipatory breach, nor are the pleadings sufficient to maintain an action for such exemplary or special damages. We cannot, in the absence of knowing the provisions of the policies, and on the basis of the pleadings as presented to the trial court, arrive at any justifiable conclusion as to what special circumstances existed of which the appellee knew or should have known, that would have required it to contemplate that the special or exemplary damages here alleged would result from a breach by the appellee of the insurance contracts. It is true that appellee did tender into court the amount of disability payments claimed by appellant to be due, which action might be considered as an admission by appellee that the payments were legally due and owing. However, we do not believe that, as set forth in plaintiff’s petition, this is sufficient to set up a cause of action for special or exemplary damages, for certainly the company had a right to consider the matter and arrive at a decision as to whether it was obligated to make the payments on the automobiles as hereinabove mentioned. Some courts hold such action to be merely a delay in payments, rather than a refusal, and we do not find any pleadings that would here apply with sufficient strength to sustain the allegation that appellee’s action constituted an anticipatory breach or repudiation. Ordinarily in all contracts, including those in the insurance field, the insured is entitled to recover only under and by the terms of the contract itself. As stated above, the policies are not before us, but it is admitted by both sides that the special and exemplary damages here asked for by appellant are not provided for in the policies. We have studied the appellant’s petition and the appellee’s exceptions thereto. The appellant apparently did not decide to amend his petition; and in the absence of the policies themselves, or any indication from the pleadings (other than the mere allegation of the appellant), we have nothing to rely on that would justify an action for special or exemplary damages. In short, the appellant here merely pleaded what the trial court apparently considered conclusions of the pleader, asking for damages not contained within the provisions of the contracts. On the basis of the record before us, we think the trial court was correct in sustaining exceptions to the petition.

In summation, we feel that there were not sufficient facts alleged to have entitled appellant to go to trial on the theory that the appellee was actually guilty of a tort in breaching the two insurance contracts. Appellant merely alleges what happened and, in the absence of the policies themselves or any other type of information, the trial court was left with only what appear to be conclusions of the pleader. Motors Insurance Corporation v. Jackson, 340 S.W.2d 610 (Ky.1960) ; Englehart v. Volunteer State Life Ins. Co. (Tex.Civ.App.), 195 S.W.2d 798 (ref., n. r. e.); Haas v. Pacific Mut. Life Ins. Co. of Cal., 70 Ohio App. 332, 41 N.E.2d 263; 37 A.L.R.2d 538 et seq.

Appellant’s two points are therefore overruled and the judgment of the trial court affirmed.


author: BARROW, Justice.

text:
    Earl MEADOR et al., Appellants, v. Julia IVY, Appellee.
    No. 14381.
    Court of Civil Appeals of Texas. San Antonio.
    April 28, 1965.
    Werner A. Gohmert, Alice, for appellants.
    Lloyd, Lloyd, Dean & Ellzey, Alice, for appellee.
   BARROW, Justice.

Julia Ivy, appellee herein, brought this suit against Earl Meador, Administrator of the Estate of John Meador, Deceased, Mrs. Tennessee Meador, his surviving widow, and their five sons, who are appellants herein, and the First National Bank of La Feria, seeking reformation of a depository contract between John Meador and the Bank, and for the proceeds of a savings account controlled by said contract. The Bank interpleaded the amount of the savings account into the registry of the court. Appellee also sought judgment for one-half of the personal property belonging to John Meador on his death, which property was allegedly accumulated from a trailer business engaged in jointly by Meador and appellee. Judgment was rendered upon a jury verdict whereby appellee was awarded all the proceeds of the savings account and one-half of other property owned hy Meador at the time of his death, and the costs, including an attorney’s fee for the Bank, were taxed against the surviving widow and children jointly.

John Meador and Julia Ivy lived together in a meretricious relationship from 1938 until his death in June, 1961. Each was married to other persons when they commenced living together, and although appel-lee divorced her husband in 1941 or 1942, John Meador never divorced his wife, Tennessee. This fact was known to Julia and she therefore concedes that she and John did not have a putative marriage.

Prior to January 9, 1961, Meador had a checking account in his name with the La Feria Bank. On this date, he opened the savings account in controversy in his name and transferred all the proceeds of his checking account to the savings account. On January 17, 1961, he added funds to his savings account and at the same time Julia Ivy’s name was added as an authorized signature to withdraw funds from this account. NO PROVISION WAS MADE FOR RIGHT OF SURVIVORSHIP. Ap-pellee asserts, however, and the jury found that Meador intended to give her a right of survivorship in this account, and the judgment reformed the depository contract to so provide.

Sec. 46 of the Probate Code, Vernon’s Ann.Civ.Stats., authorizes a joint right of survivorship by an agreement in writing of the joint owners of property. Any earnings of John Meador were community property of John and Tennessee Meador. Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565 (1961). It has been held that a husband may, in the absence of fraud upon his wife, subject community property to a right of survivorship in favor of a third person by making a contract for the benefit of the latter. Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48 (1962). See also 13 Baylor Law Review 113. It is seen that there is no written agreement between Meador and the Bank authorizing right of survivorship, and therefore appellee seeks to reform the unambiguous depository contract.

It is settled law that in order to reform an unambiguous instrument, it must be shown that same was executed through the mutual mistake of the parties to the contract, or else that there was a mistake on one side induced hy fraud on the other. McKee v. Douglas, Tex.Civ.App., 362 S.W.2d 870, wr. ref. n. r. e.; Holchak v. Clark, Tex.Civ.App., 284 S.W.2d 399, wr. ref.; Ward v. Gohlke, Tex.Civ.App., 279 S.W.2d 422, wr. ref.; 49 Tex.Jur.2d, Reformation of Instruments, § 18. The depository contract was between Meador and the La Feria Bank. Davis v. East Tex. Sav. & Loan Ass’n. of Tyler, Texas, 163 Tex. 361, 354 S.W.2d 926 (1962); Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470 (1945).

There is no allegation or proof of a mistake on the part of the Bank. Ap-pellee pleaded only that she and Meador were mistaken in the legal effect of the signature card. She testified Meador said he wanted her name on the signature card in case something happened to him, and that neither she nor Meador read the card before she signed it. Mr. Rilling, who operated a trailer camp where the parties had lived for several years, testified that he did not like to see John Meador carry large sums on his person, as was Meador’s practice, and that he urged Meador to open an account like one Rilling and his wife had at the La Feria Bank so that Julia could have control of the money if something happened to Meador. Rilling further testified that Meador subsequently told him that he had opened an account like Rilling’s. The cashier of the Bank did not testify to any mistake on the part of the Bank as to what was intended. It is thus seen that there was no mutual mistake to justify reforming the unambiguous depository contract to provide for a survivorship agreement and to entitle appellee to these funds. Smith v. Liddell, 367 S.W.2d 662 (Tex.1963); Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447; Reserve Life Ins. Co. v. Goodloe, Tex.Civ.App., 316 S.W.2d 443, wr. ref. n. r. e.; 13 Tex.Jur.2d, Contracts, §§ 256, 259.

The judgment of the trial court also awarded appellee a one-half interest in and to $3,000.00 which Meador had on deposit with a hank in Sandia, Texas, a Series E. Savings Bond in Meador’s name, in the amount of $650.00, and a 1950 Oldsmobile Sedan. This decree was based upon the jury’s findings that all Meador’s property had been acquired through the joint labors of appellee and Meador working together for a common purpose as co-owners, and that 50% thereof was attributable to the labors of appellee. Appellee alleged that from about 1941 until Meador’s death, he and she were engaged in the business of buying, repairing and selling house trailers, and that all assets accumulated from such business were held in Meador’s name. Further, she had done at least half of the work in this business and therefore half of the assets of same belonged to her.

Neither appellee nor Meador owned any property at the time they commenced living together. Meador was in the road construction business and they moved around on various jobs in South Texas until World War II started. During the war Meador worked for various air fields in the San Antonio area, and also commenced buying and selling second-hand trailers. After the war, Meador and appellee bought, repaired and sold second-hand trailers in the Rio Grande Valley and in San Antonio. They moved around to various trailer camps in this line of work until a few months prior to the death of Meador, when they moved to Orange Grove in Jim Wells County and lived in a trailer camp purchased by appellee. This land was paid for by appellee from a bank account in her name in which were deposited funds she had inherited and which had been given to her by Meador.

There is evidence that in addition to keeping house for Meador, appellee did much of the actual painting and repairing of the second-hand trailers, particularly in the last few years when Meador’s health declined. All of the trailers were in Mea-dor’s name and he controlled all the money realized from the sale of same. Meador did not assert a partnership on his income tax return, and appellee did not make a return. Meador gave appellee money for household expenses and occasionally gave her other sums which she deposited in her own bank account. He also gave her the trailer in which they were living at the time of his death, as well as another small trailer located at Orange Grove.

It is seen that there is no pleading or evidence of any partnership agreement between appellee and Meador. In this respect the facts in Lovell v. Lovell, Tex.Civ.App., 202 S.W.2d 291, no wr. hist., are very similar to those before this Court. There the trial court’s findings, similar to those of the jury in our case, were set aside as being without support in the pleadings or evidence. It was said: “Partnership is a creature of contract. ‘As between the parties themselves there must be a voluntary agreement and an actual intention to become partners.’ 32 Tex.Jur. 234. It is not pleaded that any such agreement was expressly or impliedly made by the parties.” It was further held that there was no evi-dentiary basis for a finding that by express contract or implied understanding did the parties agree to become partners, nor was the evidence of that clear and satisfactory nature necessary to support a parol trust.

It is further seen that there is no pleading or evidence to support an express trust. Cf. Cluck v. Sheets, 141 Tex. 219, 171 S.W. 860 (1943). Further, appellee concedes that she cannot and does not assert that the property was acquired during a putative carriage relationship. Cf. Hayworth v. Williams, 102 Tex. 308, 116 S.W. 43; Barkley v. Dumke, 99 Tex. 150, 87 S.W. 1147; Hupp v. Hupp, Tex.Civ.App., 235 S.W.2d 753, wr. ref. n. r. e.; Lawson v. Lawson, 30 Tex.Civ.App. 43, 69 S.W. 246, wr. ref.; Morgan v. Morgan, 1 Tex.Civ.App. 315, 21 S.W. 154.

The distinction between the rights of a putative wife and a “pretended” wife is set forth in Lawson v. Lawson, supra. The Court recognized the rights of a putative wife to share in the property accumulated by the couple during this relationship and then said: “The reason for the rale does not apply to cases such as this, and now the courts refuse to award anything to a pretended wife, who, by reason of her knowledge of the illicit relation, occupies the position of an adulteress and a breaker of the laws. In such cases the courts will leave the parties as they find them, on the same principle that they refuse to enforce any other contract which by reason of its objects, or the nature of the consideration upon which it rests, is violative of law or against public policy.” The Court then discussed Chapman v. Chapman, 16 Tex.Civ.App. 382, 41 S.W. 533, wherein the woman who had lived as Chapman’s wife under a mistake of law was awarded one-half interest in the personalty accumulated during the relationship but none of the realty. The Court in Lawson adopted as the applicable rule, that good faith of the wife in entering upon the relationship, whether resting in mistake of fact or mistake of law, is enough to authorize the courts to treat the relation as a partnership, upon proof that something was actually contributed by each to the acquisition of the property claimed. This rule was approved by the Supreme Court in Ft. Worth & R. G. Ry. Co. v. Robertson, 103 Tex. 504, 121 S.W. 202, 131 S.W. 400. See also Papoutsis v. Trevino, Tex.Civ.App., 167 S.W.2d 777, wr. dism. Appellee does not assert that she entered into this relationship with Meador in good faith.

It is therefore our opinion that there is neither pleading nor proof to support a judgment for appellee to one-half of the property in John Meador’s name at the time nf his death.

The judgment of the trial court is reversed and judgment here rendered that Julia Ivy take nothing by her suit, and that the costs be taxed against her.

      . JURY VERDICT:
      1. The money and property of John Engram Meador at the time of his death was acquired, in whole or in part, through the labors of Julia Ivy in connection with John Engram Meador, working together for a common purpose as co-owners.
      2. Fifty per cent of the value of the money and property in question was attributable to the labors of Julia Ivy, as a co-owner.
      3. At the time Julia Ivy and John Engram Meador signed the signature card at the First National Bank of La Feria on January 17, 1961, John Engram Meador intended that the said funds he placed in a joint tenancy account with right of survivorship payable at the death of either John Engram Meador or Julia Ivy to the survivor of them.


author: BELL, Chief Justice.

text:
    HOUSTON TRANSIT COMPANY, Appellant, v. Mrs. Frank H. CHARON et vir, Appellees.
    No. 14417.
    Court of Civil Appeals of Texas. Houston.
    May 6, 1965.

      Roger R. Wright, Jr., Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.
    Robert L. Steely, W. James Kronzer, Houston, Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for appellees.
   BELL, Chief Justice.

Mrs. Charon was injured on May 16, 1961 when the automobile she was driving was hit in the rear by a bus operated by a driver for appellant. Her automobile and the bus were both headed in a southerly direction on Milam Street. She had just stopped for a stop sign at the intersection of Milam and West Alabama. Appellees recovered judgment in the amount of $14,-520.00.

The jury answered favorably to appel-lees the following issues:

1. Appellant operated its bus, just before the collision, with inadequate air pressure in its braking system.

2. This was negligence.

3. This negligence was a proximate cause of the collision.

4. Appellant’s driver failed to properly observe the pressure gauge before the collision.

5. This was a proximate cause of the collision.

Appellant complains, as to each issue, that there was no evidence to support said issues. In passing on these points, we consider only that testimony in support of the findings of the jury and if considering such together with all reasonable inferences that may be drawn therefrom a reasonable mind could reach the same conclusion as did the jury, there was evidence of probative force. Conflicts in the evidence must be disregarded. The credibility of the witnesses was solely for the jury.

Appellant also contends that the trial court erred in not disregarding the answer of the jury to each of the above issues because there was “insufficient” evidence to support them. As these points are addressed to a procedural step 'that involves the test of “no evidence” we must treat them as nothing more than “no evidence” points. McDonald v. New York Central Mutual Fire Insurance Company, 380 S.W.2d 545 (S.Ct.); Houston Maritime Association v. South Atlantic & Gulf Coast District, I.L.A., 367 S.W.2d 705 (C.C.A.), no writ hist.

The additional point of error that “The Court erred in overruling defendant’s motion for new trial or remittitur” is too general to be considered. Texas Employer’s Insurance Ass’n v. Hawkins, 369 S.W.2d 305 (S.Ct.). Too, the point is not briefed and is, therefore, waived.

Before looking at the testimony it is observed that appellant contends the evidence conclusively establishes the collision resulted when there was a sudden failure of the air brakes on the bus. There is testimony, which if accepted by the jury, would show that the air compressor that builds up pressure in tanks that supply air to the braking system broke suddenly, causing immediate loss of all air. There was a hole in the block of the compressor. One of appellant’s employees testified this would cause an immediate loss of air from the tanks because there was no check valve to keep the pressure in the tanks.

Appellees’ theory is that there is testimony from which a jury could conclude that the loss of air in the tanks was not sudden but was gradual and that if the operator of the bus had properly observed the gauge he would have noticed the air pressure was dropping and would have ceased driving the bus. Undoubtedly the bus was being operated with inadequate air pressure.

A portion of the deposition of Mr. Steel-man, the bus operator, was read in evidence. He testified that when he was 60 or 65 feet behind Mrs. Charon he put his foot on the brake and he heard a noise that sounded like air rushing out of a tube that has had a nail pushed into it, and the brake did not work at all. He further stated air pressure is built up in the air tank by the compressor to about 90 pounds. If the air is gone the brakes lock automatically.

On trial Mr. Steelman testified in person. He testified that at all times the air pressure was over 60 pounds. The pressure must be about 60 pounds for the brakes to work correctly. They won’t try to operate on less than 60 pounds. When he applied the brakes and heard the noise, he noticed the needle on the air gauge was going; was no stopping to it. This gauge shows the pressure of the air in the air tank. Each stop uses part of the pressure built up in the tank. A number of stops may be made without the compressor adding to the reserve that has been built up in the tank. Opening the door also uses part of the air, thus reducing the pressure.

Mr. Allen, a repairman for appellant, who replaced the compressor on the bus after the collision, testified by deposition. He testified there was a hole in the block of the compressor, caused by a broken rod. It couldn’t be repaired so it was replaced. He had little independent recollection but testified from the “Request for Inspection” which showed a replacement of the air compressor. He testified the compressor built up air in the air tank while the motor of the bus is running. When the pressure gets to a certain number of pounds in the air tank the compressor cuts off. It has a pop-off valve. If the pressure tank has air in it, it will hold the air even though the compressor is not working. The pressure built up in the tank registers on the gauge in the bus. The pressure will remain in the tank until it is used up through use m operating the bus. The inspection request only showed the compressor was replaced. It showed nothing with regard to the air tank.

Mrs. Charon testified that after the collision she talked to the bus driver and he told her that “he had had some trouble with his brakes.” The driver got on the bus and said “that he was supposed to have a certain pressure on his brakes but that he didn’t have that much * * * He said he had five or ten pounds.”

We note impeachment testimony to the effect that previously the witness had not stated the above. However, this goes only to the weight the jury should give her testimony. It is immaterial to our determination of whether there is evidence of probative force.

Some testimony of Mr. Parker, a witness for appellant, was that there was no valve on this particular bus that would hold the air in the tank if the block of the compressor had a hole in it but the air would suddenly rush out of the tank. However, at one point in his testimony he stated that if the air compressor failed there would remain several stops in the tank. If the pressure dropped below 60 pounds the rear wheels would lock.

The investigating officer testified the driver told him, “My air leaked down and would not build up.” He also testified he tested the brakes but could not build up enough pressure to make the brakes work but there was still some pressure. His recollection was the gauge registered 25 to 30 pounds. He had no better recollection of the exact pounds of pressure than 25 to 30, but he could not be specific.

Viewing the above testimony which is favorable to the jury verdict and disregarding such little as we have noticed that is • nfavorable and such as we have not noticed but which is also unfavorable, we are of the view that a jury could reasonably conclude that the air pressure was reduced gradually and that if the driver had observed the gauge he would have discovered it. The result is that there is evidence of probative force to support the findings that driving with inadequate air pressure was negligence that was a proximate cause of the collision and that the failure to properly observe the pressure gauge was also a proximate cause of the collision.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Joe William GRACE, Jr., Appellant, v. Jane Moores Grace McCRARY, Appellee.
    No. 4335.
    Court of Civil Appeals of Texas. Waco.
    April 15, 1965.
    Rehearing Denied May 13, 1965.

      Joe William Grace, Jr., pro se.
    Sonfield & Sonfield, F. Lee Duggan, Jr., Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a judgment of the Court of Domestic Relations No. 2 of Harris County, holding appellant Grace in contempt of court for failing to make child support payments as ordered by the court, and refusing to reduce appellant’s child support payments.

Appellant Grace, and appellee McCrary were formerly husband and wife, being divorced in 1961. Such divorce decree awarded custody of the couple’s 4 minor children to appellee and required appellant to pay $185 per month child support. In May 1964 appellee caused appellant to he cited in contempt for delinquency of $325, in his child support payments. Appellant denied delinquency, and by cross action asked for reduction of amount of payments to $110 per month on the ground of changed conditions, and further asked for readjudication of visitation rights.

The Trial Court, after hearing, held appellant in contempt of court for a delinquency of $325 in his child support payments ; modified appellant’s visitation rights; and denied appellant’s prayer to reduce child support payments.

Appellant appeals, contending the Trial Court erred: 1) In holding him in contempt; and 2) In not reducing the amount of child support payments.

The Trial Court found that appellant failed to make the support payments required by the previous order, and that he was delinquent in the amount of $325. The Trial Court further held appellant in contempt of court by reason of this. There is no appeal from a judgment or order holding a person in contempt, and this court is without jurisdiction to review the portion of this appeal as relates to the contempt proceeding. Tims v. Tims, CCA, W/E Ref., 204 S.W.2d 995; Wagner v. Warnasch, Sup.Ct., 156 Tex. 335, 295 S.W.2d 890. Appellant’s contention and the point related thereto is accordingly dismissed.

The Trial Court, after full hearing, found that there had been no material change or other factor since the rendition of the divorce in 1961 that would authorize any change in the support provisions contained in such judgment, or to reduce such monthly payments. The divorce decree required appellant to contribute $185 per month toward the support of his 4 children. The record discloses, among other things, that appellee has remarried; and that appellant has gross earnings of $866 per month, and net earnings of $702 per month. From the record we think the evidence ample to support the findings and judgment of the Trial Court. Appellant’s contentions and points related to the Court’s failure to reduce support payments are overruled.

The judgment, insofar as it denies reduction in child support payments, is affirmed.

The appeal, insofar as it pertains to the judgment of contempt is dismissed.


author: DAVIS, Justice.

text:
    TRINITY UNIVERSAL INSURANCE CO., Appellant, v. George L. McLENDON, Jr., d/b/a Fort Worth Hotel Supply, Appellee.
    No. 7642.
    Court of Civil Appeals of Texas. Texarkana.
    May 11, 1965.
    Rehearing Denied May 25, 1965.
    L. E. Elliott, Brundidge, Fountain, Elliott & Churchill, Dallas, for appellant.
    William L. Richards, Andress, Wood-gate, Richards & Condos, Dallas, for ap-pellee.
   DAVIS, Justice.

Plaintiff-appellee, a subcontractor, sued Marble Construction Co., Inc., the prime contractor, and appellant, on a payment bond given under the provisions of Art. 5160, R.C.S., Vernon’s Ann.Civ.St. art. 5160 for labor and material furnished by appellee to the prime contractor in the construction of a new elementary addition for the Killeen Independent School District in Bell County, Texas. The subcontract provided for installing certain cooking equipment in the school building, and a lump sum payment after the completion of the subcontract.

Appellee alleged that the subcontract was completed on October 10, 1962, or shortly thereafter. Appellee’s final bill not having been paid, he contacted the superintendent of the Killeen Independent School District by telephone on or immediately prior to December 13, 1962, and was advised by the superintendent to get in touch with the appellant because it had issued a payment bond on the contract. Appellee then placed a long distance call to the appellant and an agent of the appellant told appellee not to worry about the balance that was due under the contract, but for him to send appellant the information and he would see that the bill was paid. After the appellee placed the telephone call, he, on December 13, 1962, wrote a letter to the appellant, directed to the attention of the agent, and sent him the itemized bill that showed the balance of the account in the amount of $10,558.79, with a carbon copy mailed to Mr. McClung; George Christian, Architect; Mr. Peeples, Superintendent of the Killeen Independent School District; and, Marble Construction Co., Inc. Appellee alleged that the appellant was estopped to deny its liability under the payment bond and had waived the requirements of filing an itemized and verified bill as required by the statutes.

Appellant defended the suit on the theory that the appellee had failed to comply with the statutory prerequisites necessary to fix liability on the payment bond. After the evidence was all in appellant made a motion for instructed verdict. The motion was overruled, and certain special issues were submitted to the jury. The special issues inquired about the telephone conversation, and whether or not the agent had told the appellee that the bill would be paid; that the appellee relied upon the statement; that he was not prompted to take further action with respect to complying with the legal requirements of the statutes; and, that the agent knew or should have known that the appellee would have acted in the manner that he did upon the promise. The jury answered all the special issues in favor of the appellee. The trial court found that the appellant was estopped to deny liability under the payment bond, and rendered judgment in favor of the appellee. Appellant has perfected its appeal and brings forward 7 points of error.

By its points 1 and 4, appellant says the trial court erred in overruling its motion for instructed verdict on the ground that there was no compliance with the statutory requirements for fixing liability under the payment bond sued on; and, in overruling its motion for judgment n. o. v., because there was no evidence of any compliance by appellee with the statutory prerequisites for fixing liability on the bond, or of estoppel to deny such liability. According to the evidence, shortly after the telephone call made by appellee to appellant and the letter written by appellee to the agent of appellant, appellee received a payment on the balance due, which left a balance of $1,893.-26. George L. McLendon, Jr., the appellee, testified very definitely that he understood the information he sent to the appellant by the letter dated December 13, 1962, was all that was necessary for him to do.

Appellant took the position that the agent wrote a letter to appellee on December 18, 1962, in which it acknowledged receipt of the letter from appellee dated December 13, 1962, advising appellee that the notice was not in keeping with the information requested during the telephone conversation. Appellee denied seeing the letter dated December 18, 1962, that supposedly was written to him. There was no proof that the letter was written, and the original thereof was mailed as required by the rules of evidence to make it admissible ; even though the copy was admitted in evidence. There is a conflict in the evidence that was introduced, sufficient to show that appellant waived the requirement under the McGregor Act (Art. 5160, R.C.S.), for filing the bill, and is sufficient to support the jury’s finding.

It seems that the McGregor Act (Art. 5160, R.C.S.) is patterned after the Miller Act of the Federal Statutes (40 U.S.C.A. §§ 270a and 270b). The Act provides for giving payment bonds by contractors for public works and buildings. The Act also provides for the itemization and verification of all claims in order to hold the bonding company liable.

Under the Miller Act (40 U.S.C.A. §§ 270a and 270b) the requirement of the statute for the itemization and verification of the bills can be waived. United States for Use of Koppers Co., Appellee v. Five Boro Construction Corp. et al., appellants, 4 Cir., 310 F.2d 701; McWaters and Bartlett et al., appellants v. United States, appellee; and, American Surety Co. of New York, appellant, v. McWaters and Bartlett et al., appellees, 10 Cir., 272 F.2d 291 ; United States for Use and Benefit of Hopper Bros. Quarries, appellant v. Peerless Casualty Co., appellee, 8 Cir., 255 F.2d 137.

It seems that the question of waiver and estoppel, Art. 5160, R.C.S., as amended April 27, 1959, has been written on only two times. United Benefit Fire Ins. Co. v. Metropolitan Plumbing Co. (Tex.Civ.App.), 363 S.W.2d 843, N.W.H., and, General Insurance Co. of America v. Smith & Waldroup, Inc. (Tex.Civ.App.), 388 S.W.2d 262. Article 5160 was fully discussed in the United Benefit Fire Ins. Co., supra, as well as the sufficiency of the notice and claim for the balance due under the contract. In addition to discussing the article, the court said:

“It is well settled that a right of privilege given by statute may be waived or surrendered, in whole or in part, by the party to whom or for whose benefit it is given, if he does not thereby destroy the rights and benefits conferred upon or flowing to another in or from the statute or other legal or equitable source.
“Assuming, for purpose of this opinion only, that the notice actually given by plaintiff was insufficient to meet and satisfy the requirements of the statute — did the surety, by virtue of its acts and conduct, waive strict compliance on the part of the plaintiff with the notice requirements of the statute, so as to preclude the surety from asserting its discharge?”

This is quoted in General Insurance Co. of America v. Smith and Waldroup, Inc., supra.

Appellant, through its agent, on June 2, 1963, again admitted receiving the notice, but that he doubted the sufficiency of the same. It appears that the appellant was notified of the claim by telephone conversation and by written notice. By its acts and conduct thereafter it is estopped to deny the sufficiency of the same. See cases above cited. 64 T.J.2d 327, Estoppel; 64 T.J.2d 958, Waiver; 22 T.J.2d 664-65, Secs. 4 and 5; 32 T.J.2d 408, Sec. 243; 60 T.J.2d 184, Sec. 3. The points are overruled.

Appellant’s points 2, 3, 5, 6, and 7 complain about the evidence not showing an estoppel, or being insufficient to support the jury’s findings. We have carefully examined the statement of facts, and find the evidence is sufficient. The points are overruled.

The judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    A & S STEEL BUILDINGS, INC., Appellant, v. Leon BURK, Individually and d/b/a Leon Burk Construction Company, Appellee.
    No. 7454.
    Court of Civil Appeals of Texas. Amarillo.
    March 22, 1965.
    Rehearing Denied April 26, 1965.

      Clayton, Kolander, Moser & Templeton, Amarillo, for appellant.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellee.
   DENTON, Chief Justice.

This is an appeal from an order of the trial court sustaining the plea of privilege filed by appellee and transferring the case to the District Court of Tom Green County, Texas. Appellant filed suit against ap-pellee for $1,439.32 and attorney’s fees o for certain building materials furnished under an alleged written contract between the parties. Appellee’s plea of privilege was duly controverted by appellant in which they rely on Subdivision 5 of Article 1995, Vernon’s Ann.Civ.St. The trial court, without a jury, sustained the plea of privilege and ordered the case transferred to Tom Green County, the legal residence of appellee.

On April 4, 1963, the parties entered into a written contract whereby appellant sold material for a' rigid frame steel building to appellee for the sum of $8,577.00. The material was delivered to appellee at Big Springs, Texas, in accordance with the terms of the contract, and it is undisputed this amount has been paid by appellee. Subsequent to the execution of the contract and prior to the delivery of the material, appellee orally ordered some extra material valued at $144.68. Still later ap-pellee informed appellant the roofing sheets were damaged in shipment and requested replacements. Additional roofing sheets valued at $1,294.64 were then shipped to appellee. The alleged value of these two shipments is the subject matter of this suit.

A provision of the April 4 contract, which was placed in evidence without objection, reads:

“1. The contract price and any and all sums of money to become due hereunder by Buyer to Seller shall be payable, and Buyer promises to pay the same, at the office of Seller in Amarillo, Potter County, Texas.”

Unquestionably the contract is performable in Potter County, Texas. In order for a case to come within Subdivision 5 of the venue statute the suit must be to enforce a particular obligation which the contract requires to be performed in the particular county expressly named. Slagle v. Clark, (Tex.Civ.App.), 237 S.W.2d 430; Cunningham v. Allison, (Tex.Civ.App.), 202 S.W.2d 297. It is immaterial that some obligations imposed by a written contract are required to be performed by one or the other party in a particular county; the material and controlling fact being that the particular obligation sought to be enforced by the suit is required by the contract to be performed in a particular county. McKinney v. Moon, (Tex.Civ.App.), 173 S.W.2d 217; May v. Perkin, (Tex.Civ.App.), 227 S.W.2d 393; Rogers v. Waters, (Tex.Civ.App.), 262 S.W.2d 521.

The principal question is whether or not the subsequent purchases by appellee are an obligation under the contract. In our opinion the subsequent purchases, which is the subject matter of this suit, are not included in the written contract. The additional material shipped to appellee was not material contracted for in the April 4 contract. It is admitted appellee has paid the full amount called for in that contract. Appellant argues in effect that the obligation of payment for the additional material arose “by reason of” the written contract and is such as to bring the suit within Subdivision 5. The contention has been rejected by the Supreme Court. Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120. Being of the opinion the obligation sued upon is not one required by the contract to be performed in Potter County, the plea of privilege was properly sustained.

The judgment of the trial court is affirmed.


text:
    Hazel G. LEDBETTER, Appellant, v. Paul V. LEDBETTER, Appellee.
    No. 4330.
    Court of Civil Appeals of Texas. Waco.
    April 22, 1965.
    Rehearing Denied May 20, 1965.
    Collins, Moore & Putnam, Fred A. Collins, Talmage M. Guy, Houston, for appellant.
    Vinson, Elkins, Weems & Searls, M. C. Chiles, and J. D. McDaniel, Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal from the entry of a judgment nunc pro tunc correcting a previous judgment, so that such judgment would reflect what was in fact adjudged by the court.

Hazel G. Ledbetter was granted a divorce from Dr. Paul V. Ledbetter on December 3, 1959 by Court of Domestic Relations No. 2, Harris County. The parties entered into an agreement dividing their property, which “Settlement Agreement” was approved by the Court as a part of the divorce decree. The parties owned 2 homes, and in the Settlement Agreement the home in Houston in the River Oaks Addition was awarded to Mrs. Ledbetter; and the home in Chambers County was awarded to Dr. Ledbetter. The Chambers County home was located on 14 contiguous lots. The house itself was located on Lot 7, and the water well for the house was located on Lot 62. After the divorce Dr. Ledbetter lived on the Chambers County property until 1963 when the house burned. He rebuilt the home, and in attempting to secure a loan, the title examination revealed that Lot 7 and Lot 62 had not been recited in the property Settlement Agreement approved by the Court in the 1959 judgment. In June, 1964 Dr. Ledbetter filed motion in the original divorce case, alleging among other things that the Court rendered judgment from the bench that Dr. Ledbetter was to receive the Chambers County property, including Lots 7 and 62; that Mrs. Ledbetter was to receive the River Oaks home in Houston; that the judgment failed to list Lots 7 and 62 with the other contiguous lots; and prayed for entry of judgment nunc pro tunc listing Lots 7 and 62 with the other Chambers County lots.

Trial was before the Court without a jury, which, after hearing, entered judgment nunc pro tunc, finding that the Court in 1959 in open court awarded Mrs. Led-better the home in River Oaks in Houston, and awarded Dr. Ledbetter the land and home in Chambers County; that Lots 7 and 62 were omitted from the description of the Chambers County property, in the preparation of the decree by clerical error; and corrected the clerical error by including Lots 7 and 62 in the properties described in the Court decree.

Mrs. Ledbetter appeals on 10 points^ contending the Trial Court erred:

1) In finding the omission of lots 7 and 62 from the 1959 decree was a clerical error.
2) In finding the Court, in 1959, judicially determined the division of community property, because the Court in 1959 merely approved a contract of the parties dividing their properties.
3) In finding the Judge in 1959 orally announced an award on the lots in dispute, because there is no evidence or insufficient evidence, to support such finding.

Appellant asserts that the 1959 judgment entered by the Court granted Mrs. Led-better a divorce; recites that the parties have filed a “Settlement Agreement” dividing their properties; and then recites “Said Settlement Agreement is therefore approved by the Court as a part of this decree.” Appellant further asserts that since the actual omission of Lots 7 and 62 from the description of the Chambers County home occurs in the Settlement Agreement, that the judgment insofar as the property division is concerned is an agreed judgment, and must be governed by the laws relating to contracts rather than the laws relating to judgments; that under the law of contracts, such cannot be modified absent fraud, accident, or mistake; and that Court of Domestic Relations No. 2 of Harris County, under Article 2338-11, Vernon’s Ann.Tex.Civ.St., creating such court, is a court of limited jurisdiction and without jurisdiction to reform the parties’ contract of property settlement.

We reject all of appellant’s contentions. The record reflects that the parties intended that the River Oaks home go to Mrs. Led-better, and that the Chambers County home go to Dr. Ledbetter. The Chambers County home is located on 14 contiguous lots; the house itself was located on Lot 7; and the water well on Lot 62. It is true that the property settlement agreement omitted Lots 7 and 62 from the legal description of the Chambers County property, but the facts are uncontroverted that it was the judicial decision of the Court in 1959 that Dr. Ledbetter should have the Chambers County property. Judge Compton, who tried the original case and entered the 1959 judgment, testified in the instant proceeding: “I was awarding him (Dr. Ledbetter) the property in Chambers County and her the River Oaks * * *. I didn’t know the legal description of any of it.”

The fact that the judgment as finally signed and entered did not conform with the adjudication and judgment of the Court from the bench, entitles appellee to judgment nunc pro tunc conforming the judgment to that as rendered by the Court.

Rule 316, Texas Rules of Civil Procedure provides that mistakes in the record of any judgment may be amended by the judge in open court, according to the truth or justice of the case, provided reasonable notice is given the opposite party of an application to enter a judgment nunc pro tunc. Moreover, courts have inherent power to correct their judgments by entry nunc pro tunc, so as to properly and correctly recite the true action taken. Knox v. Long, 152 Tex. 291, 257 S.W.2d 289; Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040; Mehaley v. Jenkins, Tex.Civ.App. (n. w. h.), 369 S.W.2d 846; Truelove v. Truelove, Tex.Civ.App., Er.Ref., 266 S.W.2d 491; Wiseman v. Zorn, Tex.Civ.App. (n. w. h.), 309 S.W.2d 253.

Under the authorities cited, the Trial Court here had authority by a judgment nunc pro tunc to correct the 1959 judgment to make it reflect the actual proceedings had and what was in fact adjudged by the Court. The fact that Dr. Ledbetter might have reformed the Property Settlement contract on the ground of mutual mistake, in some other court, in no way takes away from the Court which rendered the 1959 judgment, the power to, by nunc pro tunc judgment, cause its judgment to speak the truth.

All of appellant’s points and contentions are overruled.

Affirmed.


author: WALTER, Justice.

text:
    TEXAS CASUALTY INSURANCE COMPANY, Appellant, v. Mary Lou GONCE et al., Appellees.
    No. 3980.
    Court of Civil Appeals of Texas. Eastland.
    May 7, 1965.
    Rehearing Denied May 21, 1965.

      Turner & Seaberry, Eastland, for appellant.
    Webb & Stokes, San Angelo, G. A. Day, Brownwood, Yates & Yates, Abilene, for appellees.
   WALTER, Justice.

Mary Lou Gonce, individually and as next friend for her three minor children, and Ollie Gonce, as next friend for a minor child of the deceased by a previous marriage, recovered a judgment against Texas Casualty Insurance Company for death benefits under the Workmen’s Compensation Act on account of the death of Jerry G. Gonce. The insurance company has appealed.

The jury found that Gonce at the time of his death was an employee of Ford Brothers and that he was in the course of his employment and that he was not an independent contractor. The appellant presents no evidence and insufficient evidence points and contends that the jury findings are against the preponderance of the evidence. It also contends the court erred in overruling its objections to the definitions of employee and independent contractor and in permitting appellee to ask leading questions.

Mary Lou Gonce testified substantially as follows: My husband Jerry Garland Gonce was killed in an automobile accident August 17, 1963, while we were returning from Dallas. He had been employed by Ford Brothers Aluminum Body Works of San Angelo about nine months. My husband came home from work Friday and informed me that he was delivering a truck for his company to a baker in Dallas and wanted me to drive him to the service station and get the truck. We had no personal business of any kind in Dallas. We had no reason to make the trip except to deliver the truck on behalf of the company. When we started to leave on Saturday morning, the truck wouldn’t start. I pushed the truck to a filling station where my husband used the telephone and then I pushed him to the Bass-Jarmon Ford Company’s place of business. My husband’s boss, Ford, came to the Ford house, and he and my husband had a conversation. We bent the back bumper of the truck when I was pushing it. Ford told my husband to take the truck back to the body shop and fix it before we left for Dallas. My husband followed his instructions. I heard Ford give my husband some instructions on how to straighten the bumper. He then told my husband to get some aluminum paint and paint it. About 10:00 o’clock Ford said everything was ready for our trip to Dallas. Ford told me he hoped we would have a nice trip. We had some written instructions on how to get to the place where we were to deliver the truck. I studied them with my husband but we got lost and inquired at a filling station and finally delivered the truck to the bakery. On the return trip my husband drove from Dallas to the first little town out of Dallas and then I took over and continued to drive until we had the accident. I had been up since 5:00 o’clock that morning and my husband didn’t go to bed Friday night. He went to sleep as soon as I started driving. Near Brown-wood, about 10:00 o’clock at night I went to sleep, the car ran off the road and my husband was killed.

Wade O. Ford testified substantially as follows: I am in the business of manufacturing aluminum bodies for bakery trucks. Jerry Gonce had worked for me about eight Or nine months before his death. We paid our men for delivering trucks to Dallas, Houston and other places. I knew that Mrs. Gonce was going with Jerry. It made no difference to me whether Jerry came home by bus or car. We paid Jerry Gonce $26.00 for delivering the truck to Dallas. We arrived at this figure by estimating the time it would take to go to and from Dallas and allowed $1.25 per hour. We also allowed him $8.00 bus fare for his return trip. The men did not have permission to drive out of the most direct route to Dallas. When Gonce had the truck at the shop repairing it, I guess I could have told him to leave it at the shop. After I had arranged for Mr. Gonce to deliver the truck if I had become unhappy with him about something I could have told him to leave the truck and send someone else. “Q. All right. By the same token, you could have stopped him part of the way, if you had elected to, and brought him back, if there had been occasion ? I am not saying that there was one, but you could have if you had wanted to, could you or not? A. I guess I could have.” It was extra pay for the men when they delivered trucks. I suppose that I had the right to control them if I wanted to use that right. I never did have a special conversation with them to the effect that they were on their own and independent of me. I paid Gonce before he left on his trip to Dallas. His wife cashed the check after his death.

One of the controlling questions in this case is whether Gonce was an employee or an independent contractor. The majority and the dissenting opinion in Newspapers, Inc. v. Love, 380 S.W.2d 582, (Sup.Ct.), held that it is the right of control over the details of the work that determines the master-servant relationship. The insurance company’s position here is that the evidence shows as a matter of law that Gonce was at the time of his injury an independent contractor. The evidence outlined above, and other facts and circumstances in evidence, constitutes some evidence that the employer-employee relationship existed.

Appellant’s point that there is no evidence to support the jury’s answer that Gonce was in the course of his employment cannot be sustained. In Jecker v. Western Alliance Insurance Company, 369 S.W.2d 776, (Sup.Ct.), the court said:

“The general rule is, in reality, even broader than we had occasion to state it in Coleman. It is that injuries incurred by a workman while traveling on public streets and highways are not incurred in the course of employment. But there are exceptions to that rule. One of the exceptions is when injury occurs while the workman is traveling on the public streets or highways pursuant to express or implied requirements of his employment contract. * * * The rationale of it is that since the workman’s employment requires him to subject himself to the risks and hazards of streets and highways, his injuries grow out of his employment. Smith v. Texas Employers’ Ins. Ass’n, supra. The exception was well established before the adoption of Sec. lb of Art. 8309 by the Legislature, and it must be assumed that the section was enacted with full knowledge of it. Was the exception abolished by Sec. lb of Art. 8309? We think not. * * *”
“Our determination of whether there is in the record evidence of probative force that Jecker was in the course of his employment at the time of his fatal accident is made under governing law as announced above. There is evidence that he was in the course of his employment if there is evidence that (1) he was traveling on the highway pursuant to express or implied provisions of his employment contract that he do so in performance of his duties, and (2) that he would have made the trip had there been no personal or private affairs to be furthered and would not have made it had there been no business of his employer to be furthered.”

There is evidence of probative force that Gonce was traveling on the highway at the time of his death pursuant to express provisions of his employment contract; that he was being paid by the hour for the time he was traveling; that his transportation was being paid for by his employer and that he would not have made the trip to Dallas except for the business of his employer. We find that there was some evidence to support the jury’s finding that Gonce was in the course of his employment. Jecker v. Western Alliance Insurance Company, Tex., 369 S.W.2d 776; Texas Employers’ Ins. Ass’n v. Inge, 146 Tex. 347, 208 S.W.2d 867.

Appellant objected to the definition of employee because it failed to instruct the jury on the right of control. The court gave the statutory definition of the term. This is all that is required. Blankenship v. Royal Indemnity Company, 128 Tex. 26, 95 S.W.2d 366.

The appellant objected to the definition of independent contractor because “undue emphasis to the prejudice of this party in what control is kept by the independent contractor in order to be an independent contractor.” The definition was apparently taken from Dr. Pepper Bottling Co. et al. v. Rainboldt, Tex.Civ.App., 66 S.W.2d 496, which case was reversed by the Commission of Appeals in Schroeder et al. v. Rainboldt et al., 128 Tex. 269, 97 S.W.2d 679. The Commission of Appeals, however, did not pass upon the correctness of the definition. We find the court did not err in overruling appellant’s objection.

Ford, a partner in Ford Brothers, was called as a witness by appellee. During the first part of Ford’s testimony the court sustained appellant’s objections that counsel was leading the witness. Sometime later appellant objected to a question because it was leading, suggestive, prejudicial and argumentative. At this point the court decided that Ford was a hostile witness and permitted appellees to ask the witness leading questions. Some of the questions asked thereafter were substantially the same as those which had been asked the witness before such ruling. Under these circumstances we find that the appellant has not discharged its burden of proving that the asking of such leading questions was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

We have considered the entire record and find that the jury’s answers are not against the great weight and preponderance of the evidence and that the evidence is sufficient to support such findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    TEXAS TANK, INC., Appellant, v. GENERAL TANK & EQUIPMENT CO. et al., Appellees.
    No. 7661.
    Court of Civil Appeals of Texas. Texarkana.
    April 27, 1965.
    Rehearing Denied May 18, 1965.
    Haskell H. Cooper, John P. McDowell, Dallas, for appellant.
    Morriss, Morriss, Boatwright & Lewis, Clarence Boatwright, San Antonio, for ap-pellees.
   CHADICK, Chief Justice.

This is a venue case. The order of the trial court sustaining the plea of privilege of General Tank & Equipment Company is reversed and rendered but the judgment is otherwise affirmed.

It was alleged and proven in the trial court that Texas Tank Inc., domiciled in Dallas County, Texas, consigned and delivered certain fuel tanks to General Tank & Equipment Co., a corporation domiciled in Bexar County, Texas, under the terms of a written contract. The consignment contract required General Tank to pay a stipulated price for each tank when it was sold; “sale” being defined in the instrument so as to include General Tank’s conversion, or attempted conversion, of a tank. General Tank sold or otherwise disposed of the tanks described in Texas Tank’s petition and failed to pay for them when Texas Tank demanded payment.

Proof was made that defendants Earl T. Prade and Fletcher Rabb were the principal stockholders and informally directed General Tank & Equipment Company’s vice president and general manager, Charles S. Hays, in the disbursement of corporate funds. The directions are described as informal because no proof was offered of orders in this respect emanating from the Board of Directors of the corporation. It appears that Hays was given latitude and discretion in the corporation’s other business affairs commensurate with his managerial title.

The evidence warrants a conclusion that for an indeterminate time preceding March, 1961, General Tank had experienced difficulties in meeting its commitments, arising out of the sale of the tanks held under consignment from Texas Tank. Beginning shortly after March, 1961, the proceeds from the sale of the consigned tanks were placed in a special account and remittances from the account made to Texas Tank at intervals. This practice was followed for an undisclosed length of time. Later the general manager under instructions from Prade and Rabb used money from this special account to pay suppliers, salaries, and other corporate expense.

When General Tank failed to settle the account suit was filed in Dallas County naming as defendants General Tank & Equipment Co., Prade, Rabb, and Hays. Each defendant separately filed a plea of privilege. General Tank asked the case be transferred to Bexar County. Prade asked it be removed to Real, the County of his residence. Rabb that it be removed to Uvalde County, his residence. Hays to Bexar County, his residence, though Hays later waived his plea and agreed to suit in Dallas County, and is not a party to this appeal. The pleas of privilege were controverted, Texas Tank claiming an option to prosecute the suit in Dallas County under the provisions of Subdivisions 5, 23, and 29a, Art. 1995, Vernon’s Ann.Civ.St.

The written consignment contract, heretofore mentioned, obligated General Tank to pay Texas Tank for the consigned tanks in Dallas County, Texas. Subdivision 5, Art. 1995 provides that a suit to enforce the provisions of a written contract may be brought in the county where the contract expressly provides the obligation is to be performed. This court must reverse the order of the trial court as it pertains to General Tank & Equipment Co., and render judgment overruling the corporation’s plea of privilege. 1 Texas Civil Practice (McDonald), Sec. 4.11 cases listed in footnote 23.

Subdivision 23, Art. 1995 authorizes suit against a private corporation in the county where a cause of action against it, or part thereof, arose. The evidence that the contract was breached by failing to pay at Dallas, Texas, supports venue of this action against General Tank under Subdivision 23. Subdivision 29a, Art. 1995 provides that in cases where there are two or more defendants and venue of the suit may be maintained as to one defendant in a particular county under any subdivision of Art. 1995, the suit may be maintained in the same county against all other necessary parties to the suit; provided they are necessary parties to the particular phase of the action that confers venue as an exception to the general rule. City of Gilmer v. State, 281 S.W.2d 109 (Tex.Civ.App.1955, no writ).

The appellant asserts that Prade and Rabb are necessary parties to Texas Tank Inc.’s suit against General Tank to enforce the terms of the written consignment contract, though they are not mentioned therein as parties to the contract and do not appear as signatories to the instrument in any capacity. It is theorized that Prade and Rabb’s conduct, as directors of the corporation, in authorizing General Tank’s manager Hays to pay corporate business expense out of the special fund set up to service the Texas Tank account made them liable in the same way and to the same extent that they would have been had they been actual parties to the contract. The theory treats such funds as money held in trust, and regards the diversion of the funds to pay General Tank’s corporate expense as a breach of trust. These facts and conclusions, it is argued, had the legal effect of making Prade and Rabb parties to the contract, and binding them to its terms as individuals. Dollar v. Lockney 164 S.W. 1076 (Tex.Civ.App.1914, no writ); Conrick v. Houston Civic Opera Ass’n, 99 S.W.2d 382 (Tex.Civ.App.1936, no writ); and Subdivision B, Art. 2.41, Texas Business Corporation Act, V.A.T.S., are the authority offered to support the proposition.

As the law and evidence pertinent to the pleadings and proof is understood, Texas Tank’s theory is not sustained. The evidence in its most favorable aspect can only be regarded as tending to show a conversion by General Tank, Prade and Rabb of tanks or funds held in trust for Texas Tank. The venue of a suit for conversions is controlled by Subdivision 9, Art. 1995. 1 Texas Civil Practice, p. 359, Sec. 4.17 (II) Trespass. In this instance Bexar County appears to be the location of the conversion, if the fact is proven at all. In any event, the conversion was not shown to have occurred in Dallas County. Venue of the conversion suit would be other than Dallas County. Conversion, 14 Tex.Juris. (2) p. 43, Sec. 43, and case there collected.

Relying on the facts related, appellant takes a slightly different tact and argues that Prade and Rabb are necessary parties because Texas Tank can not obtain the complete relief sought by its suit in the absence of Prade and Rabb as parties. Appellant’s brief states that: (1) General Tank is insolvent; (2) The relief sought is payment of $5,925.50 for tanks Texas Tank consigned to General Tank, plus $5,000.00 in exemplary damages because Prade, Rabb and General Tank converted funds held in trust for payment to Texas Tank; (3) A judgment against involvent General Tank will not be paid; (4) A judgment against Prade and Rabb will or might be paid; (5) Full relief is attainable only in a single suit wherein General Tank, Prade and Rabb are parties. Pioneer Building & Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284 (Tex.Comm. of App.1939); Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758 (1956); American Seed Co. v. Wilson, 140 S.W.2d 269 (Tex.Civ.App.1940, no writ); Johnson v. Walker, 372 S.W.2d 738 (Tex.Civ.App.1963, dism’d, w. o. j.); and Clingingsmith v. Bond, 150 Tex. 419, 241 S.W.2d 616 (Sup.Ct.1951) are proffered as authorities supporting venue of the action against Prade and Rabb in Dallas County.

This court is of the opinion that the cases cited by Texas Tank, and numerous other cases, hold that the complete relief Texas Tank is entitled to is an adjudication of all issues that the pleading and proof may make in its suit alleging a breach by General Tank of the terms of the consignment contract and the damage General Tank may have inflicted upon it by reason of converting consigned tanks or trust funds.

With regard to the conversion action, it is assumed without being decided that a conversion is sufficiently plead and proved. Prade and Rabb are not necessary parties to that action because conversion is tortious in nature. It is settled law that joint tort feasors are not necessary parties to an action against one of the several tort feasors. 1 Texas Civil Practice (McDonald), Secs. 3.25 and 4.36.

The order of the trial court is reversed and rendered as it applies to General Tank & Equipment Co., and is affirmed as to Prade and Rabb.

       The term “necessary parties” is used throughout this opinion in the sense of “indispensable parties”. See 1 Texas Civil Practice (McDonald) p. 217, Sec. 316.


text:
    PLEZ LEWIS & SON, INC., Appellant, v. O’MEARA-CHANDLER CORPORATION, Appellee.
    No. 4332.
    Court of Civil Appeals of Texas. Waco.
    April 22, 1965.
    Rehearing Denied May 20, 1965.
    Brigman, Martin & Smith, Fred C. Brig-man, Jr., and Donald L. Martin, Houston, for appellant.
    Urban, Coolidge & Pennington, Bryan W. Scott, Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a judgment for plaintiff in a suit on a contract.

Plaintiff O’Meara-Chandler Corporation sued defendant Plez Lewis & Son, alleging that plaintiff and defendant (both construction companies), were engaged in a joint venture to construct an FHA housing project for the elderly in Houston, known as “McCardell Square”; that pursuant to such joint venture plaintiff advanced $10,-000, and defendant advanced $20,000 to a promotional fund for the project, which was deposited in the bank in the name of Columbia Research and Development Company; that thereafter plaintiff and defendant agreed to dissolve the joint venture, and agreed that defendant would construct the project alone; and that in consideration of plaintiff’s releasing all interest in the project, defendant would pay to plaintiff the $10,000 plaintiff contributed to the promotional fund.

Plaintiff alleged that it was agreed the oral agreement was to be evidenced in writing and that the Vice President of defendant evidenced such in writing as follows:

“We expect to have our preclosing conference * * * June 3, 1963, and our final closing sometime during the week of June 10, 1963.
“As we agreed at our meeting sometime ago, we will repay you the $10,000 that you advanced on this project at the time we draw our first check, which should be shortly after final closing.”

Plaintiff further alleged that defendant had drawn its first check but refused to pay the $10,000 owing plaintiff.

Defendant answered, among other things, by general denial; that the contract was without consideration; was an agreement to pay the debt of another; and that the $10,000 was a part of an illegal transaction and cannot be recovered by plaintiff.

Trial was before the court without a jury which rendered judgment for plaintiff for $10,000.

The Trial Court filed Findings of Fact and Conclusions of Law which follow:

“FINDINGS OF FACT
“1) Stanley Jones, Vice President of defendant wrote and signed the letter of May 28, 1963 to plaintiff corporation wherein it stated:
“ ‘As we agreed at our meeting some time ago, we will repay you the $10,-000 that you advanced on this project at the time we draw our first check, which should be shortly after closing.”
“2) Plaintiff did in fact advance the $10,000 on the McCardell Square project.
“3) In consideration for the agreement to pay plaintiff $10,000, plaintiff relinquished to defendant its rights in the joint venture agreement to construct McCardell Square project, and plaintiff did not receive any compensation from the project after the agreement. Defendant did in fact draw its ‘first check’ referred to in the letter, and did in fact have ‘final closing,’ referred to in the letter.
“4, 5) Defendant has not paid the $10,-000 to plaintiff which its officers, in the scope of their authority both orally and in writing, agreed to pay plaintiff, for relinquishment of its rights in the Mc-Cardell Square project.
“6) Plaintiff relied on the oral and written promises of defendant to pay plaintiff $10,000 for relinquishment of its rights in the McCardell Square project.
“7) The agreement and contract to pay plaintiff $10,000 by defendant, was not an agreement to pay the debt of a third party.”

CONCLUSIONS OF LAW

Defendant agreed and contracted to pay plaintiff $10,000 for relinquishment of its interest in the joint venture of plaintiff and defendant to build the McCardell Square project. This sum was to be paid after defendant received its first check. The payment became due but defendant has not paid. The contract and agreement is a binding obligation on defendant to pay plaintiff $10,000. Defendant’s officer had authority to make the agreement with plaintiff; and defendant is estopped to deny such actual authority. The agreement and contract is evidenced by an instrument in writing, to-wit: the letter of May 28, 1963. This contract and agreement is not an illegal contract; does not violate public policy; and does not violate Article 3995, Vernon’s Ann.Tex.Civ.St.

Defendant appeals, contending:

“1) There is no evidence or insufficient evidence to sustain the finding and conclusion that defendant was indebted to plaintiff for $10,000.
“2) There is no evidence, or insufficient evidence, that defendant’s agreement to pay plaintiff $10,000 was not an agreement to pay the debt of a third party.
“3) There is no evidence or insufficient evidence, to support thhe trial court’s finding that defendant agreed to pay plaintiff $10,000 for relinquishment of plaintiff’s rights in the McCardell Square construction project.
“4) The Trial Court erred in admitting the letter of May 28, 1963 in evidence.
“5) The contract between plaintiff and defendant is illegal and against public policy, as a matter of law.”

We revert to defendant’s contentions 1, 2 and 3. The witnesses O’Meara, Chandler, and Howard testified that defendant, through its Vice President Jones, agreed to pay plaintiff the $10,000 plaintiff had advanced as front money, in consideration of plaintiff’s withdrawing from the McCardell Square project. The letter of May 28, 1963 to plaintiff’s President from defendant’s Vice President unequivocally evidences such agreement. It is further in evidence from the witness Howard that final loan closing on the project was had during the week of June 10, 1963, and that defendant had received its first check from the project. We think the evidence sufficient.

Defendant’s 4th contention is that the Trial Court erred in admitting the letter of May 28, 1963, into evidence. Plaintiff plead that the oral contract between it and defendant was to be evidenced in writing and plead the terms of the writing. The letter was admissible in evidence.

Defendant’s final contention is that the contract between plaintiff and defendant was illegal and against public policy, for which reason it is unenforceable. Defendant reasons that since it is in evidence that the $30,000 promotional fund originally contributed by plaintiff and defendant, was to be used to‘ obtain the construction contract; and that it was eventually paid to Rev. A. A. McCardell, pastor of the church which was “sponsor” of the FHA housing project, “that illegality runs all through the case, and plaintiff is precluded from recovery.” The foregoing is not proof as a matter of law that the $10,000 was paid pursuant to a contract which was illegal or against public policy.

All of defendant’s points and contentions are overruled.

Affirmed,


author: WILSON, Justice.

text:
    The FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, v. Thomas E. AMOS, Appellee.
    No. 4328.
    Court of Civil Appeals of Texas. Waco.
    April 8, 1965.
    Motion for Rehearing Dismissed April 26, 1965.

      Vinson, Elkins, Weems & Searls, Sam W. Davis, Jr., Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Royce Till, Harry Burns, Houston, for appellee.
   WILSON, Justice.

The carrier in this workmen’s compensation case contends there is no evidence claimant was an employee of its assured on September 12, when he alleges he was injured; and the jury finding that he was such employee is contrary to the overwhelming preponderance of the evidence. We affirm.

Pan-American Distributors, Inc. contracted to dismantle an oil refinery. Aca-dian Engineering Co., appellant’s assured, agreed to furnish to Pan-American equipment and labor (“different classifications that Pan-American asked for”), bookkeeping, public liability, property damage and workmen’s compensation insurance for the job. Acadia’s secretary-treasurer testified the corporation was a “broker for laborers, took care of the insurance for a percentage of the pay and supervised the over-all operation.” The policy of Acadia and its parent corporation when Acadia was doing such a job was “to require that all people who come and work” on the premises be placed on Acadia’s insurance payroll for its own protection, which was “the only way you can be sure they are covered in order that Acadia have no liability,” he testified.

It appears that David Embly orally agreed with Pan-American that he would demolish brick structures and salvage the brick from the refinery. The evidence is conflicting as to his relationship with Pan-American and Acadia. Embly testified he bought the bricks from Pan-American for $10 per thousand and sold them to a brick concern for $35, agreeing with Pan-American’s superintendent that he would pay $10 per thousand to have the brick cleaned. Embly recruited fifteen men to clean the brick. They were given a physical examination, which all but Embly passed. “They could not be in there unless they was insured,” he testified: “They couldn’t get in the gate.” All the brick cleaners, including claimant, were on Acadia’s payroll, as appellant concedes. Embly testified it was agreed Acadia would deliver the individual payroll checks to him; that he would obtain the workers’ endorsement on the checks, cash them, and return the proceeds of the checks to Acadia; that he would pay the workers one cent per brick for cleaning them when collection was made from their resale, which pay “came out of the bricks that were sold.” There was other evidence that Embly took the workers to a drive-in where they endorsed and cashed Acadia’s weekly checks.

There is evidence that Acadia billed Pan-American for the amount of its payroll, including wages of claimant on a basis of $1.25 per hour, plus a markup for insurance service.

The critical question, as the parties present the issue is — not whether claimant was initially Acadia’s employee — but whether he ceased to be such before the evidence shows he was injured on September 12. The insurer’s argument is that Acadia had withdrawn completely from the project on September 1, the end of its payroll period, and had made its final billing to Pan-American. There is plausible and persuasive evidence from which appellant’s position may be deduced. Acadia’s last check to claimant bears date September 4, and the daily report of its foreman from which payroll checks were computed lists August 30 as the last day of claimant’s work.

If Acadia’s records in evidence are conclusive, appellant’s position must be sustained. But they are not conclusive. Claimant testified he returned for his final pay check after leaving the hospital several days after his injury, and was told it was not ready. When he returned on another day, he and other brick cleaners were given Acadia payroll checks all dated September 4, all cashed simultaneously and all of which cleared Acadia’s bank October 1. Acadia’s superintendent instructed Embly to take claimant to the hospital on September 12. He testified he had “no independent recollection,” basing his testimony as to dates on the payroll records.

Appellant quotes testimony of Pan-American’s 'superintendent that Acadia withdrew from the project with bricks yet left to- be cleaned. He also testified, however, “Q. There isn’t any question, is there Mr. Gillette, but what at some time near the end of the operation Acadian pulled completely out, and Pan-American continued with some men cleaning brick there? A. No, sir. Q. There isn’t any question but what that happened? A. Yes. There is a question.” His proof was that toward the end of the job Pan-American started its payroll on some men but Acadia was “paying these men for cleaning this brick; they was making the payroll”; that even after termination Acadia paid for work done by agreement with Embly. Acadia had withdrawn, was his testimony, “but they still had their books and was making the payroll,” and “at the time, whatever the date was that he got hurt, Acadian Engineering was paying Jack Embly’s employees.” They “was supposed to be, because they was still working under his insurance.” The comptroller of Acadia’s parent company testified, “All I can say is that I can go by the records.” Embly testified as to Acadia, “they were still there” when claimant was injured. The points are overruled. See, e. g., Employers Mut. Liability Ins. Co. v. Norman, Tex.Civ.App., 201 S.W.2d 620, writ ref., n. r. e.; Traders & Gen. Ins. Co. v. Frozen Food Express, Tex.Civ.App., 255 S.W.2d 378, writ ref. n. r. e.; Federal Underwriters Exchange v. Walker, Tex.Civ.App., 134 S.W.2d 388; Traders & General Ins. Co. v. Jaques, 131 S.W.2d 133, writ dism. c. j.

Affirmed.