text:
    Jimmy Wilbur EWALT, Appellant, v. The STATE of Texas, Appellee.
    No. 35042.
    Court of Criminal Appeals of Texas.
    Jan. 2, 1963.

      Charles W. Tessmer, Dallas, on appeal,, for appellant.
    Henry Wade, Dist. Atty., Emmett Colvin,. Jr.,-Asst. Dist. Atty., Dallas, and Leon B.. Douglas, State’s Atty., Austin, for the ■ State.
   McDonald, judge.

Unlawfully carrying a pistol is the offense; the punishment, one year in jail.

Officer J. K. Slemmons testified that he,, with his partner, J. W. Barnett, was cruising in the 100 block of North Haskell, a. street in Dallas, Texas, about 10:55 in the-evening, August 30, 1960. The officers testified that they heard a disturbance at a. night club and heard someone yell “ T will'knock your damn head off’ ” or “ T will blow your head off’ ” or something to that effect. The officers further testified that they saw a man run south on Haskell and; into an alley and that he appeared to have a revolver of some type in his hand. The-officers pursued the man, whom they identified as appellant, and found him hidden in-a doorway. Finding no weapon on the person of appellant, Officer Slemmons, in* the company of U. S. Marshal Dick Bagley,. searched the alley and found nothing. Officer Slemmons made a second search and’ found a pistol in the bottom of a trash can. The pistol was loaded with six rounds of ’ ammunition, the same being identified at: trial by Officer Slemmons and introduced in evidence. U. S. Marshal Dick Bagley testified that he was traveling south on Has-kell when he heard a woman scream, and he saw a man with a pistol, holding it on •another man who was pleading “ ‘Please ■don’t’,” and a woman was also pleading 'with the man holding the pistol. Marshal Bagley further testified that before he could stop his car and jump out, the man with the ;pistol ran down the alley and as he, Bagley, ■started to get a light from his car he saw "the police car. The marshal identified the ■appellant, at trial, as the man with the pistol. Officer Barnett testified that the ■persons in front of the night club on his arrival there, after he and his partner found •and arrested the appellant, were Marshal Bagley, Bill McNees, Floyd Mason, and :and unidentified woman.

Appellant did not take the stand but his brother, Teddy Adele Ewalt, testified to a conversation at some unspecified prior date •at a drive-in in which McNees claimed appellant owed him some money and he ■would collect it one way or another. The witness attempted to testify to a prior re-ilationship between appellant’s wife and Bill McNees, which evidence was excluded. 'On offer of proof, however, the witness could testify only to a common knowledge, having no personal knowledge of his own, and, further, that he would have considered .the conversation about the collection of money owed (to which he had already testified before the jury retired) as a threat to kill, and that he had never seen his brother, the appellant, come home with any marks from any beating.

Witness Guy Glasgow, Assistant District ■Clerk of Dallas County, Texas, brought a Tecord of a final judgment in a cause between Jimmy Ewalt and Patricia Ann Ewalt, dated October 17, 1960. Appellant’s ■counsel offered the judgment or decree of the Domestic Relations Court on the theory of self-defense, which evidence was excluded by the court as not material.

Appellant’s counsel urges four propositions as error, all preserved by informal bills of exception. There are no formal bills.

Appellant’s first contention is that the court erred in not directing a mistrial when the prosecutor waived an affidavit of appellant’s wife before the jury during closing argument, the affidavit never having been introduced or offered in evidence. The record reflects that the prosecutor stated: “He talks about not knowing who this is, not knowing who this woman is. Well, I will define that, Ladies and Gentleman. That was his wife; I have a statement right here from her saying she doesnJt want to prosecute.” (Emphasis supplied.) We observe that appellant’s trial counsel had earlier said:

“* * * it will shock and stagger your imagination when you walk out of this community and find out what the true facts of the lawsuit are, because you can reasonably and logically deduce that no man, you, and you, and anybody else, would take a woman in custody for an offense out there, when that same individual be cited as to that, and take that individual to jail and charged and never be able to know who that person is. Why would they do that? Why would they do that? What is the skillfulness of the ma-noeuvre? Why not simply tell us who this woman is? Why not do it? All those records — they jump on me and say they are available to you * * *. They are, by subpoena only. When I walk to that jail house they tell me ‘You are in error, you cannot see our records.’ Why? Where is this thing we look for, the reason to withhold this information as to who this woman was ? It was later, mind you, had committed an offense subsequent to that, was placed in the car and subsequently jailed for it. Why do they want to withhold it? Why do they? How can I subpoena an unknown person? I know and you know why they wouldn’t let those people, down there yesterday, one of them, tell us who this woman was. You can reasonably deduce and speculate and surmise this woman was Patricia Ann Ewalt * * (Em- ■ phasis supplied.)

Appellant relies upon Cole v. State, 171 Tex.Cr.R. 255, 347 S.W.2d 719, to support his' contention that “ ‘The un-sworn statement of State’s counsel to the jury of a material fact adverse to defendant which was not put in evidence during the trial will require the judgment of conviction to be set aside.’ ” We agree with the principle enunciated in Cole. We think, however, that in the case at bar the argument that appellant complains of was occasioned, justified, or provoked by his own. trial counsel .and was invited by him. We see no error in the remarks. Dupree v. State, 80 Tex.Cr.R. 211, 190 S.W. 181; Kessler v. State, 136 Tex.Cr.R. 340, 125 S.W.2d 308; Lerma v. State, 150 Tex.Cr.R. 360, 200 S.W.2d 635; Wells v. State, 153 Tex.Cr.R. 331, 220 S.W.2d 148.

We notice that the cautious trial judge sustained an objection to and instructed the jury to disregard the final remark of the prosecutor to the effect that the woman did not want to prosecute. If the remark was improper, it is difficult for us to conceive how a desire not to prosecute could be viewed as prejudicial. Any injury is obviated by the court’s ruling unless the nature of the remarks is such as to obviously impair the rights of the accused. Zepeda v. State, Tex.Cr.App., 353 S.W.2d 221.

Appellant urges as his second proposition of law that the trial court erred in excluding evidence of the circumstances that might have led appellant to carry a weapon, it being his position that such evidence was relevant in mitigation of punishment. He attempted to show through one Teddy Adele Ewalt, his brother, that the wife of appellant, or former wife, was involved with one Bill McNees and that McNees had threatened appellant’s life. The trial court sustained an objection to this testimony as being immaterial. The jury was retired, and appellant perfected his bill. No competent evidence to this effect was produced in the bill of exception, as the witness knew nothing of his own knowledge of any such association and merely concluded that there was a threat on the life of appellant, on testimony that had already been admitted. Appellant contends that he is entitled to all the beneficial evidence on his behalf that may be relevant to the charge against him or the extent of the punishment that should be im-' posed. Appellant’s able counsel concedes, in his brief that threats against an individual do not give that individual license to carry a weapon for his protection and that the existence of threats or danger is-not a defense to a charge of carrying a dangerous weapon. It is the position of appellant’s counsel that the existence of threats is relevant to the proper punishment-Appellant relies upon Lively v. State, 150 Tex.Cr.R. 485, 202 S.W.2d 850, Claus v. State, 130 Tex.Cr.R. 250, 93 S.W.2d 727, and Knoble v. State, 100 Tex.Cr.R. 341, 273 S.W. 594, to sustain his contention.

Appellant has correctly construed the holding of this court in Lively, supra, which held that the actions of the defendant at the time it was claimed he carried a pistol should have been admitted, but not his various misdeeds prior to the time in question. Lively’s case was reversed. The state could not properly bring in “other misdeeds” committed prior to the pistol offense. We express the view that neither could the state bring in antecedent acts of misconduct culminating in the event that happened at the scene of the offense. We hold that the appellant comes under the same rule of prohibition as expressed by us in the Lively case. Neither can he bring in prior benevolent acts or acts justifying, extenuating, or minimizing his conduct prior to the night of the offense. It is appellant’s view that he should have been allowed to produce facts showing antecedent acts, not facts as to what happened at the scene of the offense, and that -,he should have been entitled to show why the disagreement arose and why the appellant carried a gun. He contends that these were relevant facts.

From what we have said, it is our opinion that Lively, supra, does not support appellant’s contention. Neither do we think that Claus and Knoble, supra, support his position. In those two cases the eviden-tiary facts pertained to actions at the time •of the alleged offense of carrying a pistol. ' No authority has been cited, and we know •of none, supporting appellant’s theory of admitting evidence in mitigation of punishment in a pistol case, a non-intent crime. Appellant’s second proposition is overruled.

The third proposition advanced by appellant is that the court erred in not allowing him time to perfect a bill of exception. Appellant called an assistant district clerk and offered in evidence at trial a divorce judgment dated October 17, 1960, on the stated theory of self-defense, that is, on the issue of inducing cause to appellant’s carrying a weapon. It is his position that the records were expected to show a divorce action between appellant and his wife; that they were relevant to show that appellant had had difficulty with his wife; that this would support the fact of his fear of Bill McNees. The trial court rejected the records on the objection of immateriality, and appellant offered to perfect his bill at that time by reading the judgment of the Dallas district court into the record. To this offer the court replied: “All right. Let the court reporter mark it so later on she can find it.” The statement of facts reflects that the assistant district clerk testified fully upon direct examination by appellant’s trial counsel that he had brought with him Volume EE of the Minutes of the district clerk; that he looked at page 669 to which appellant’s counsel directed his attention “that we have marked there”; that the records were. the official records of that court -and that he was the assistant district clerk; that the minutes had been approved and further in response to a question “What page does that cause appear on?,” he responded: “669”; that the cause number was 60-479; that the style of the proceeding was Ewalt vs. Ewalt; that the first names were “Jimmy and Patricia Ann”; that the matter was finally concluded and judgment entered on October 17, 1960. Objection was then made to “anything that happened after the date of this offense in this case,” the objection being that it would be self-serving and also it would be immaterial.

The record in this case reflects that the date of the offense was August 30, 1960. Had the bill of exception been taken at the requested time, we perceive no way that it would have or could have reflected error. From what we have said, all but the formal parts of the divorce decree were read into the evidence before the jury, before any objection was taken. The evidence adduced was sufficient to have availed the appellant of his purported right of self-defense, which we fail to recognize in a case of this character. The trial court’s action is a clear indication to us that, as reflected by the record, he made a clear indication to permit a perfection of the bill of exception later. No reversible error under Article 759a, Sec. 2(a), Vernon’s Ann. Code Crim.Proc. appears. Pate v. State, 171 Tex.Cr.R. 126, 345 S.W.2d 532.

Appellant’s last proposition is that the trial court abused his discretion in refusing to permit him to re-open and call a witness in his behalf after the beginning of jury arguments. Appellant desired to call a witness by the name of Mike Ginzell. The character of the proposed testimony was not stated to the court. In the absence of such a showing it was not error to refuse to allow such testimony. Richards v. State, 34 Tex.Cr.R. 277, 30 S.W. 229. Where there is nothing to show that the rejected evidence was of a character calculated materially to change the state of the case favorably to the accused, there is no ground for reversal. Baker v. State, 130 Tex.Cr.R. 649, 95 S.W.2d 401; Waldrip v. State, 130 Tex.Cr.R. 205, 93 S.W.2d 414; Heidingsfelder v. State, 128 Tex.Cr.R. 351, 81 S.W.2d 510.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Worley Lee INGRAM, Appellant, v. The STATE of Texas, Appellee.
    No. 35058.
    Court of Criminal Appeals of Texas.
    Dec. 5, 1962.
    Rehearing Denied Jan. 16, 1963.
    E. H. Boedeker, Lubbock, for appellant-
    Fred E. West, County Atty., Broadus A. Spivey, Asst. County Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of $100.

Highway Patrolman E. B. McKnight, called as a witness by the state, testified that on the night in question, as he was parked on the shoulder of U. S. Highway 84 in Lubbock County, he observed an automobile driven by appellant veer off'the road toward him; that after appellant turned back into the road and passed, he proceeded to follow and stop him after traveling a little over a quarter of a mile. Officer McKnight testified that while following appellant he observed his automobile on several occasions weave back and forth on the right side of the road but not cross the center stripe. He further stated that after stopping appellant he could smell a strong odor of alcohol on his breath; that appellant had urinated on himself and the front seat of his car; that he had difficulty in walking and was very unsteady on his feet, and the officer expressed his opinion that at such time appellant was very intoxicated.

Testifying as a witness in his own behalf, appellant denied that he was intoxicated or that he had had anything to drink. He also called witnesses to corroborate his denial of intoxication, and they testified that they had seen him on the night in question, prior to his arrest, at which time they did not smell alcohol on his breath and stated that he was sober.

In explaining his manner of walk and appearance at the time of his arrest, appellant testified that he was a victim of polio, which affected his walk, and that he was also afflicted with kidney trouble. He further denied that the highway patrolman smelled liquor on him and explained that what the officer smelled was fresh Copenhagen snuff, of which he had a mouthful, which “smells like rum.”

The jury by their verdict resolved the disputed issue of intoxication against appellant.

We first overrule appellant’s contention that the evidence is insufficient to support the judgment of conviction.

Appellant insists that the court erred in failing to grant a new trial on the ground that the jury received new evidence after retiring to deliberate upon the case. This contention is based upon proof that when the jury retired to deliberate, they took with them into the jury room a box of Copenhagen snuff which had been introduced in evidence by the state and, before arriving at a verdict, they opened the box, smelled of the snuff, and then mixed it with water to determine its smell. The box of snuff was a box of Copenhagen snuff appellant had with him at the trial, which he identified as being the same type of snuff he had on the night of his arrest.

In his brief, appellant relies upon certain holdings of this court, primarily in liquor cases such as Tro v. State, 104 Tex.Cr.R. 193, 283 S.W. 511, and Smith v. State, 153 Tex.Cr.R. 193, 218 S.W.2d 851, where it was held reversible error to exhibit to the jury a container of liquid which had been admitted in evidence for them to smell or otherwise examine to determine whether it was intoxicating liquor, where the matter of its intoxicating nature was an issue, or to permit the jury to take the container with them to the jury room and there examine and determine whether it was intoxicating liquor.

In the cases where such practice has been held reversible error, it was shown that the jury, by their examination, discovered new evidence which influenced their verdict.

In the present case, there is no showing as to the results of the jury’s examination and experimentation with the snuff. No juror testified on the motion for new trial as to what smell was revealed by the examination of the snuff. In the absence of a showing that some new fact, hurtful to appellant, was discovered by the examination and experiment, which influenced the jury in the case, such action by the jury would not require the granting of a new trial. Smith v. State, 90 Tex.Cr.R. 24, 232 S.W. 497, and also Smith v. State, 152 Tex.Cr.R. 399, 214 S.W.2d 471.

Appellant’s remaining complaint is to a portion of the county attorney’s closing argument to the jury. Appellant’s only objection to the argument was: “We take an exception to that.” Such objection, without stating the grounds or reason therefor, is insufficient to predicate error. Bryant v. State, 109 Tex.Cr.R. 32, 2 S.W.2d 846; Maddox v. State, 138 Tex.Cr.R. 210, 133 S.W.2d 977; Johnson v. State, 150 Tex.Cr.R. 356, 200 S.W.2d 1021.

The judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    Iona Star DOBY, Appellant, v. The STATE of Texas, Appellee.
    No. 35151.
    Court of Criminal Appeals of Texas.
    Jan. 2, 1963.
    Jacko Hargrove, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zgour-ides and David Ball, Jr., Asst. Dist. Attys.,: Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of heroin with two prior felony convictions alleged for enhancement; the punishment, life imprisonment.

Officers Strickland and Gifford, accompanied by three other officers, went to the home of the appellant to execute a search warrant. When they arrived the appellant was driving an automobile from the driveway. Officer Strickland identified himself as a police officer, informed the appellant that he had a search warrant for her house, and asked her to step out of the car which she did. After Officer Strickland obtained appellant’s purse which she was carrying he searched it and in an inside pocket of the purse he found a cellophane packet containing one capsule of white powder and two pieces of a white tablet. Then the officers, with the appellant, entered the house in which she had told them she lived. Officer Gifford testified that on a search of the house he found in the bath room an eye dropper, two needles, a bloody handkerchief and a clear piece of cellophane paper with traces of white powder on it.

A chemist testified that he made an analysis of the white powder in the capsule in the cellophane packet and determined that it contained one grain of heroin, and an analysis of the two pieces of tablet showed they contained dolaphane.

Proof was offered of the prior convictions alleged and that the appellant was the same person so convicted.

Testifying in her own behalf, the appellant denied any knowledge of heroin being in her purse or of a paraphernalia in her house. She testified that Officer Strickland pulled her out of the car, jerked her purse out of her hand, and while searching the purse removed a cellophane container and said to her: “Here is your ticket back to Goree.” She further testified that Officer Strickland put the heroin in her purse as far as she was concerned, and that she assumed he put it in there. She admitted that she had the two pieces of white tablet in her purse, which she said she had been taking for her nerves.

The appellant while testifying admitted that she was the same person who had been convicted of the prior offenses as alleged for enhancement.

Error is urged in the refusal of appellant’s motion for a change of venue. She alleges that there existed a dangerous combination of influential persons against her-who had periodically released to news media statements about the appellant which were regularly published, and that such pub- : licity had deprived her of a fair and impartial trial in Harris County.

The affidavit of the compurgators attached to the motion refers only to the prejudice existing but they do not support the allegations that a dangerous combination exists

The evidence adduced on the motion for a change of venue is not before this court in a separate statement of facts separately filed, as required by Art. 759a, Sec. 6, Vernon’s Ann.C.C.P., therefore it cannot be considered. Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362; Selvidge v. State, 171 Tex.Cr.R. 140, 345 S.W.2d 523.

Appellant contends that because of her illegal arrest and the invalidity of the search warrant, the search of her purse and the house, the seizure of the articles therein and their admission in evidence was error.

The validity of the search warrant is attacked on the ground that it is vague and indefinite in that it does not name any particular person but recites that they are unknown, and includes all out buildings and motor vehicles.

In Garcia v. State, 170 Tex.Cr.R. 328, 340 S.W.2d 803, the insufficiency of the affidavit for the warrant was attacked on substantially the same grounds as the warrant in this cause and it was held to be sufficient. The holding in Garcia is here applicable and controlling and it is concluded that the search warrant is valid. The search warrant and the warrant of arrest therein authorized the arrest of the appellant who was in possession of the premises described. The arrest being lawful the search of the appellant’s person incident thereto was legal. Giacona v. State, 169 Tex.Cr.R. 101, 335 S.W.2d 837; Fletcher v. State, 171 Tex.Cr.R. 74, 344 S.W.2d 683.

The other complaints presented are the refusal of a requested instruction to find the appellant not guilty if she was arrested on this charge away from her house; and the jury argument of the state that they could not believe her testimony denying the possession of the heroin, and that the only reason she could have for its possession would be for the purpose of sale or use. These contentions under the record show no error.

The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.

Opinion approved by the Court.


text:
    Johnny Joe COUNTS et al., Appellants, v. The STATE of Texas, Appellee.
    No. 34936.
    Court of Criminal Appeals of Texas.
    Nov. 14, 1962.
    Rehearing Denied Jan. 16, 1963.

      Robert L. Templeton, of Kolander, Moser & Templeton, Amarillo, for appellant.
    Prank J. Baughman, Dist. Atty. and Robert R. Sanders, Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal by E. D. Meredith and J. T. Musick, as sureties upon the bail bond of Johnny Joe Counts in the principal sum of $2,000 from a final judgment of the 47th Judicial District Court of Potter County, forfeiting said bond.

On October 30, 1961, complaint was filed in Justice Court No. One, Place Two, of Potter County, charging Johnny Joe Counts with the offense of unlawfully breaking and entering a motor vehicle with the intent to commit theft.

On November 2, 1961, a bail bond in the principal sum of $2,000 was executed by Johnny Joe Counts, as principal, and the appellants herein, as sureties, conditioned as follows:

“THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, That whereas the above named principal stands charged by information or indictment duly presented in the 47th District Court of Potter County, Texas, with the offense of a Felony.
“NOW, if the said Johnny Joe Counts shall well and truly make his personal appearance before said Court * * * INSTANTER * * * and there remain from day to day and term to term of said Court until discharged by due course of law, then and there to answer said accusation against him, this obligation shall become void; otherwise to remain in full force and effect.”

The bond, approved by the sheriff, was filed in the 47th District Court on November 3, 1961.

On November 22, 1961, an indictment was returned in the 47th Judicial District Court of Potter County, charging Johnny Joe Counts with the offense of unlawfully breaking and entering a motor vehicle with the intent to commit theft and with having been previously convicted of a non-capital felony offense of like character.

On March 12, 1962, upon failure of the principal to appear in the district court when the case was called for trial, the bond was ordered forfeited and judgment nisi was entered against the principal and sureties.

On May 10, 1962, after issuance, service, and return of scire facias upon the appellant-sureties and a hearing before the court, final judgment was rendered against the principal and sureties for the full amount of the bond.

From such final judgment, entered on June 1, 1962, the appellánt-sureties prosecute this appeal.

Appellants question the validity of the bond, on various grounds.

They first contend that the bond is invalid because it was not conditioned that the principal appear before the court “for any and all subsequent proceedings had relative to the charge,” as provided by Art. 275a, Vernon’s Ann.C.C.P. In Ray v. State, Tex.Cr.App., 350 S.W.2d 653, we held that the omission of such recitation in a bond did not vitiate the bond. See, also, Daniels v. State, Tex.Cr.App., 352 S.W.2d 267, for a similar holding.

It is next contended that the bond is invalid because it did not recite that accusation against the accused was by indictment. It is further contended that the recitation in the bond that “the above named principal stands charged by information or indictment with the offense of a felony” rendered the same ambiguous and invalid. In support of their contention appellants rely upon the fact that' an accusation in district court for a felony must be upon indictment.

'Art. 273, V.A.C.C.P., prescribes the requirements of a bail bond and in subdivision 3 provides:

“If the defendant is charged with a felony, that it state that he is charged with a felony. If the defendant is charged with a misdemeanor, that it state that he is charged with a misdemeanor.”

In Trail v. State, 56 Tex.Cr.R. 73, 118 S.W. 714, it was held that a bond need not state whether the party was accused by information or indictment and that it is not necessary to allege either one or the other. In Rees v. State, Tex.Cr.App., 13 S.W.2d 856, it was held that an appearance bond need not describe the offense further than to state that the defendant was charged with a felony and any further description of the offense may be treated as surplusage.

The bond in the instant case states that the principal was charged with a felony. Under the statute and decisions of this court, this was sufficient.

Turpin v. State, 86 Tex.Cr.R. 96, 215 S.W. 455, relied upon by appellants, is not deemed here controlling. The bond in that case was unambiguous and recited that the accused stood charged by complaint in the district court with the offense of a felony. The bond in the instant case contains no such recitation. Furthermore, Turpin v. State, supra, was decided long prior to the enactment of Art. 275a, supra, which provides that a bail bond given by an accused in the course of a criminal action before any court or person authorized by law to take same for his personal appearance before such court or magistrate shall be binding upon him and his sureties for any and all subsequent proceedings had relative to the charge.

Appellants further insist that the bond, judgment nisi, and scire facias are fatally defective because the bond executed on November 2, 1961, obligated the principal to appear in the 47th District Court to answer an 'accusation against him, and at such time there was no prosecution pending against him in the district court because the indictment was not presented until some twenty days later, or on November 22, 1961.

Recently, in Hines v. State, 168 Tex.Cr.R. 381, 327 S.W.2d 755, we held that an appearance bond executed after complaint was filed in justice court charging the defendant-principal with a felony offense, which bound the principal to appear instanter before a district court, became a binding obligation to answer an indictment later returned against him for the offense charged in the complaint. The contention is overruled.

We overrule appellants’ contention that the bond is invalid because the 47th District Court did not fix the amount of bail.

As heretofore shown, the bail bond was executed prior to return of the indictment. At such time no prosecution was pending in the district court and it was not the duty of that court to fix bail. Arts. 287 and 288, V.A.C.C.P.

We overrule appellants’ two remaining contentions that the court erred in refusing to grant their application for continuance and their request for a jury trial.

The application for continuance filed by appellants was not sworn to, as required by Rule 251, Vernon’s Texas Rules of Civil Procedure.

'Appellants made no application for a jury and did not deposit a jury fee with the clerk until the day the cause was set for trial. Such is not in compliance with Rule 216 of Vernon’s Ann.Texas Rules of Civil Procedure.

It is certified by the court that no jury was present on the day set for trial and the granting of a jury trial to appellants would have resulted in a continuance.

Under such record, no abuse of discretion is shown.

The judgment is affirmed.

Opinion approved by the Court.


author: RICHARDS, Justice.

text:
    Chester R. MORRIS, Relator, v. Honorable Herman JONES, Sam A. Hoerster and John T. Middleton, Respondents.
    No. 11072.
    Court of Civil Appeals of Texas. Austin.
    Dec. 19, 1962.
    Chester R. Morris pro se.
    Will Wilson, Atty. Gen., Pat Bailey, Asst. Atty. Gen., Austin, for respondents.
   RICHARDS, Justice.

This is an original proceeding in mandamus instituted by Chester R. Morris, Relator, against Honorable Herman Jones, Judge of the 53rd Judicial District Court of Travis County, Texas, Dr. Sam A. Hoerster, Superintendent of the Austin State Hospital and John T. Middleton, Chief of Social Services of the Austin State Hospital, Respondents, wherein Relator prays for the issuance of a writ of mandamus directing the Honorable Herman Jones, as Judge of the 53rd Judicial District Court, to proceed to trial and judgment in Cause No. 118,818 upon the docket of that Court, styled Chester R. Morris v. Sam A. Hoerster and John T. Middleton.

On the first trial of Cause No. 118,818, the Trial Court sustained a plea to the ju-risdlction filed by the defendants and dismissed the cause. On appeal to this Court the judgment of the Trial. Court was reversed and the cause remanded to the Trial Court for further proceedings in accordance' with the opinion of this Court (348 S.W.2d 642). After application for writ of error had been refused by the Supreme Court of Texas, “no reversible error”, mandate was issued and filed in the Trial Court on November '10, 1961.

In his petition for mandamus, Relator alleges that after the cause was set for trial on January 5, 1962, a motion for continuance filed by the defendants was granted and the cause again set for trial on April 27, 1962. Counsel for defendants again filed a motion for continuance which was granted on, April 25, 1962.. The case was again reset for trial on November 15, 1962, on motion of Relator, at which time counsel for defendants agreed to the setting. Motion for continuance was again filed by defendants which was granted by the Court and the cause was reset for trial on December 17, 1962.

All motions for continuance were based upon the ground that there had been no final judgment rendered in Consolidated Cause No. 115,363 in the 53rd District Court of Travis County, Texas, styled Chester R. Morris v. Paul White et al., which was appealed to this Court (348 S.W.2d 644), and after the writ of error had been granted by the Supreme Court of Texas, judgment was reversed in University of Texas et al. v. Morris, Tex., 352 S.W.2d 947, which judgment has not become final, Relator having filed application for writ of certiorari to the Supreme Court of the United States in Cause No. 27-Misc. which is still pending before that Court. 83 S.Ct. 511.

In their reply to Relator’s petition for mandamus, Respondents Hoerster and Middleton pray that this Court require the Trial Court to proceed to trial and judgment only when a decision has been rendered by the Supreme Court of the United States in Cause No. 27-Misc., styled Chester R. Morris v. Paul White et al.

In our opinion reversing and remanding this cause it was stated:

“However in view of our reversal of the judgment and remand of the proceeding, we think it proper to say that appellant is required to show that the evidence requested is relevant and material for the purpose of suit or for preparation for trial in the pending causes.”

Relator alleges that on October 26, 1962, he filed suit in the 98th District Court of Travis County, in Cause No. 128,451, styled Chester R. Morris v. Anthony P. Rousos; that defendant’s answer was served upon him November 16, 1962; that no motion for stay of proceedings or motion for continuance have been filed in said cause or served upon Relator and that no order of any kind has been entered therein. Relator further alleges that the information sought by discovery in Cause No. 118,818 is relevant and material to his preparation for trial in such cause No. 128,451 in the 98th District Court.

It is our opinion and we hold that the fact that final judgment has not been entered in Cause No. 115,363, because of its pendency in the Supreme Court of the United States in Cause No. 27-Misc., does not constitute a good and sufficient ground for the continuances heretofore granted in Cause No. 118,818, and thus prevent Relator from obtaining the relevant and material information which he seeks to use in his preparation for trial in his pending suit against Doctor Rousos in the 98th District Court.

However, writ of mandamus will not issue at this time because of our belief that the Trial Court will proceed to set Cause No. 118,818 for trial as soon as practicable under the conditions of the Court's docket.


author: COLLINGS, Justice.

text:
    SUN APPLIANCE & ELECTRIC, INC., Appellant, v. Billy J. KLEIN et al., Appellees.
    No. 3748.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 30, 1962.

      Gordon Asbury, Jr., Abilene, for appellant. ,
    Key, Carr, Carr & Clark, Lubbock, for appellees.-
   COLLINGS, Justice.

This is a plea of privilege case. Sun Appliance & Electric, Inc., brought suit in the 42nd Judicial District Court of Taylor County against Billy J. Klein and W. Don White, as partners, jointly and severally, allegedly doing business as Hicks Rubber Company, Inc. of West Texas and Hicks Rubber' Company of Lubbock, Inc. Plaintiff sought to recover from defendants the balance due on a note payable to the First National Bank in Abilene at Abilene, Texas, alleged to have been executed by defendants on August 30, 1960, by their duly -authorized agent and attorney in fact. Plaintiff alleged that it was a recourse in-dorser -oh the note and as such was forced to and did pay same when defendants defaulted. The defendants each filed pleas of privilege to be sued in Lubbock County, the place of their residence. The pleas of privilege- were controverted and after hearing were sustained. Sun Appliance & Electric Company has appealed.

Appellant urges points to the effect that the court erred in sustaining the pleas of privilege,of Klein and White because appellant contends it was conclusively shown that both of said defendants were bound and obligated on a contract in writing which was by its terms to be performed in Abilene, Taylor Cotmty, Texas, within the provisions of Subdivision 5 of Article 1995, Vernon’s Ann.Tex.Civ.St.

The evidence shows or supports the conclusion that in June, 1959, Billy J. Klein purchased a tire and appliance business in Lubbock, Texas, from Hicks Rubber Company of Waco; that at the time of the purchase Klein thought hq was purchasing an existing corporation but the arrangement under which he was to purchase the corporation was never completed. Klein, however, did purchase the business being operated in Lubbock by the seller and he and W. Don White thereafter began operating such business as a partnership. At about the time of the purchase Klein and White were contacted by a sales representative of Sun Appliance & Electric, Inc. and an order was placed with said company for merchandise. The representative of Sun Appliance & Electric, Inc. was advised at the time that it was contemplated that a corporation would be formed to operate said tire and appliance business. Thereafter, in September of 1959, the corporation was formed and was called BJK Corporation. On July 6, 1959, a power of attorney was executed by Billy J. Klein in which he purported to act as president of Hicks Rubber Company, Inc. of West Texas. The power of attorney was as follows:

“To: Sun Appliance & Electric, Inc.
“Undersigned, doing business as indicated below hereby authorizes and empowers Gordon E. Brown and/or Ed Dalton to act on behalf of undersigned to prepare, execute, sign and deliver wholesale title retention or lien instruments, notes, statements of trust receipt and chattel mortgage financing and other documents in favor of the First National Bank of Abilene, Texas, covering merchandise, possession of which is given to undersigned by Sun Appliance & Electric, Inc. and generally to perform all acts and do all things necessary and proper in discharge of the power hereby conferred, including the making of affidavits and the acknowledgment of instruments, as fully as if done by undersigned. This authorization shall continue in effect until terminated by written notice from owner or officer of the business listed below.
“Hicks Rubber Co., Inc. of West Texas
“By: /s/ Billy J. Klein President.”

In September, 1959, BJK Corporation took over management of the tire and appliance business and all of the assets of the business were owned by such corporation from the date of its incorporation. After the execution of the power of attorney above set out on July 6, 1959, but before any merchandise was delivered by Sun Appliance & Electric, Inc. another power of attorney was executed authorizing the execution of notes to Commerce Finance, a financing institution in Lubbock. The first merchandise delivered to the business in Lubbock by Sun Appliance & Electric, Inc. was in November, 1959, subsequent to the incorporation of BJK Corporation and subsequent to the execution of the power of attorney to Commerce Finance and a note was made and delivered to Commerce Finance covering such merchandise. All merchandise covered by the note dated August 30, 1960, upon which this suit was brought was delivered pursuant to the financing arrangement with Commerce Finance in Lubbock, and none of the merchandise covered by this note was delivered pursuant to the power of attorney dated July 6, 1959. Klein testified that at the time the power of attorney was given authorizing the execution of notes to Commerce Finance and the note covering such merchandise was given to Commerce Finance Mr. Ernest Killingsworth, district manager for Sun Appliance & Electric, Inc. was present and represented to him that the only power of attorney under which he, Klein, would have any liability and the only obligation he would have in connection with purchases of merchandise from Sun Appliance & Electric, Inc. would be the power of attorney and the note executed to Commerce Finance. In March, 1960, Klein sold his interest in the tire and appliance business in Lubbock and BJK Corporation to W. Don,. .White. Klein testified that Mr. Killings-worth was notified that he was withdrawing ■ from the business.

On August 24, 1960, Sun Appliance & Electric, Inc. obtained another power of attorney substantially the same as the power of attorney dated July 6, 1959, except that it was signed by Hicks Rubber Company of Lubbock, Inc. by W. Don White,- as president. This power of attorney had on it the corporate seal of BJK Corporation. Mr. Killingsworth, who obtained, the power of attorney from White, testified that the only reason he could give for securing it was that. Klein had withdrawn from, the-business which was then being operated by W. Don White. ' .

On August 30, 1960, the note; which is the basis of this suit, was executed by Gordon E. Brown, purporting to act as attorney for Hicks Rubber Company of' West Texas, Inc. and Hicks Rubber Company of Lubbock, Inc. Brown admitted' that his only attempt to exercise any authority under the power of attorney in question was the execution of this note; that the'note was executed to refinance previous- notes “with Commerce Finance Company 0⅝ Lubbock” which had been paid off by Sun Appliance & Electric, Inc. because Hicks Rubber Company had failed to make payment .when due; that Sun Appliance & Electric, Inc. paid such notes because they had indorsed same with recourse and that they were forced to honor their indorsement; that they repurchased the notes and refinance^ them with the First National Bank of. Abilene by the execution of the note in question. Brown admitted that at the time he executed the note he made no inquiry to determine whether or not IQein was still connected with the business, but that he had been informed prior thereto that Klein, in fact, was not connected with the business in any way. At all relevant times Brown was credit manager of Sun Appliance &.Electric, Inc., Brown stated that he never consulted Klein regarding the authority he was exercising Under this power of attorney and did not advise Klein that he had executed the note. Klein testified that he knew nothing of the note in question until this suit was brought.

In our opinion appellant’s points urging that the evidence shows conclusively that Klein and White were each hound and obligated on a contract in writing which was by its terms payable in Taylor County, and that by reason of Subdivision 5 of Article 1995, V.A.T.C.S., venue therefore lies as to each said defendants in Taylor County are not well taken. Assuming that the powers of attorney relied upon by appellant are valid, neither Klein nor White is bound by the execution of the note sued upon because the evidence shows that Brown exceeded the authority vested in him under the express terms of such powers of attorney. The rule in such cases is that powers conferred upon an agent are to be strictly construed and that the authority is never extended beyond the express terms of the instrument or what is necessary to carry out the stated express authority. It is held that “under no circumstances can the principal be bound beyond the plain import of the language of the instrument.” Bean v. Bean, Tex.Civ.App., 79 S.W.2d 652, (Writ Ref.). Also see Montgomery v. Nevins, Tex.Civ.App., 270 S.W.2d 427.

The powers of attorney under which Klein and White are attempted to be held liable expressly provide authority only for the agent to execute notes and other instruments “covering merchandise, possession of which is given to undersigned by Sun Appliance & Electric, Inc.” The evidence shows that no merchandise was delivered pursuant to the power of attorney dated July 6, 1959, under which Brown purported to act in signing the note here sued upon. The evidence shows that all the merchandise was delivered commencing in November, 1959, after the execution of the power of attorney authorizing the execution of notes and other instruments to Commerce Finance of Lubbock. Brown admitted that no merchandise was delivered pursuant to the power of attorney executed by Klein. He further admitted that his only attempt to exercise any authority under the powers of attorney here involved was the execution of this note and that such note was executed to refinance previous notes held by Commerce Finance Company of Lubbock. These previous notes had been paid off by Sun Appliance & Electric, Inc. because Hicks Rubber Company had failed to make payments when the notes were due and appellant had paid the notes because they were indorsers thereon with recourse and they therefore repurchased said notes and refinanced them with the First National Bank of Abilene by execution of the note here sued upon. The powers of attorney relied upon by appellant do not expressly or by implication provide for authority to execute refinancing obligations, but only authorized execution of notes, “covering merchandise, possession of which is given to undersigned by Sun Appliance & Electric, Inc.”

We hold that the power of attorney executed by Klein on July 6, 1959, was not under the facts of the case irrevocable. In our opinion the evidence presents a fact issue on the question of whether such power of attorney was revoked. It must be presumed in support of the judgment that the court found that there was a revocation. This is still another reason why the court was correct in refusing to retain venue as to Klein in Taylor County under Subdivision 5 of Article 1995.

Under the facts as herein substantially set out we also hold that venue does not lie in Taylor County as to either Klein or White under Subdivision 29a of Article 1995, V.A.T.C.S. We have carefully considered all of appellant’s points and they are overruled.

For the reasons stated the judgment of the trial court is in all things affirmed.


author: STEPHENSON, Justice.

text:
    DEALERS NATIONAL INSURANCE COMPANY, Appellant, v. Johnnie JACKSON, Appellee.
    No. 6539.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 11, 1962.
    Motion for Rehearing Nov. 7, 1962.
    Rehearing Denied Nov. 28, 1962.

      John H.. Benckenstein, Beaumont, for appellant. , .
    ’ Sample '& Walker, Carl Waldman, Beaumont, for appellee.
   STEPHENSON, Justice.

This is ah appeal from the judgment of ■the trial court awarding plaintiff total and permanent disability under the Workmen’s Compensation Law.. The parties will be designated here as- they were in the trial court.

Defendant contends first that there was no evidence that plaintiff was an employee of the assured, W. B. Cariker, doing business as W. B. Cariker Lumber Company. For brevity, this assured will be hereinafter referred to as “Cariker”. The employment situation is somewhat complicated, and it is necessary for us to make a complete statement in order to clarify this point.

Cariker was the owner of an electric mill, and was engaged in the manufacturing of lumber. As a part of the operation, the waste lumber was carried from the mill by means of an electric conveyor to the slab pit, where it was burned. Cariker made an oral agreement with R. R. Moore to let Moore use his electric power to operate Moore’s saws. Moore would catch the waste lumber as it came by on the conveyor belt, and would cut this waste lumber into either handle stock or stacking strips. Moore had an arrangement with á third person to sell the handle stock at so much per thousand, and this was the only compensation Moore received for his work. The stacking strips were used by Cariker in his lumber business to separate the layers of lumber after the lumber had been cut and as it was being stacked. Mr. and Mrs. Moore separated and he left. Mrs. Moore made the same agreement with Cariker, as had been made by her husband. Mrs. Moore made an agreement with Clifford Baker to perform the services for her at the sawmill for which she agreed to pay Baker $14.00 per thousand stock handles. Mrs. Moore gave Baker permission to hire his stepfather-in-law, the plaintiff in this cause. Baker promised the plaintiff to pay him one-half of the money Baker received from Mrs. Moore. At the time of the accident, plaintiff was cutting stacking strips. '

Considering the evidence most favorable to the finding of the jury that plaintiff was Cariker’s employee, there is the following evidence: (1) at the time of the accident, plaintiff was engaged in the work of cutting stacking strips. (2) Cariker’s foreman told Baker to cut a few stacking strips every day, and not just one day a week. (3) Cariker’s foreman “raised cain” with Baker and told him the stacking strips would have to be cut clean and not uneven. (4) Cariker’s employees asked Baker to shut down his operation when the wind was blowing saw dust on the place Cariker’s employees were stacking lumber. (5) Cariker’s employees cut off the electricity two or three times. (6) Mrs. Moore’s employees were compelled to clean up around their operation. (7) The accident occurred on Cariker’s premises. (8) Baker was asked about Cariker’s foreman and his supervision of the work — “He’d come over and look at them (stacking strips) would shake his head and turn around and walk off.”

Plaintiff contends part of his work was for Mrs. Moore as an employee of an independent contractor, and as to other parts of his work, he was Cariker’s employee. Plaintiff cites the Supreme Court’s decision, Standard Insurance Co. v. McKee, 146 Tex. 183, 205 S.W.2d 362. Plaintiff also quotes at great length from the Supreme Court case, Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94. This case lays down several rules of law we are bound to follow in this type of case:

“It is thus our duty to determine whether in respect to the particular act of the servant he was under the control and supervision of the general employer, or the borrowing employer.” “ * * ⅝ [t]he fact that a person is a general servant of one employer does not, as a matter of law, prevent him from becoming the special servant of another who may become liable for his acts. He may become the other’s ■ servant as to some acts and not others.”
“ * * * the test is whether in -the performance of the wrongful act he continues liable to the direction and control of his general employer or becomes subject to that of the person to whom he is lent.”

In this case Hilgenberg was killed by the tractor rolling over him, while he was actually engaged in giving the driver of the tractor orders as to how to operate the tractor. Because of his right of control over the driver, demonstrated by the fact he was standing within six feet of the tractor pointing with his cane the way he. wanted the tractor driven, Hilgenberg made the driver of the tractor his employee. We have no such facts in this case. No Cariker employee was directing or supervising the details of the operation of Mrs. Moore’s mill. Mrs. Moore and Cariker entered into an agreement mutually beneficial to both. Mrs. Moore obtained stock handles which she could sell, and Cariker obtained stacking strips which he needed in the operation of his lumber mill. The facts in this case clearly bring it under the settled law of this state as restated in Industrial Indemnity Exchange v. Southard, 138 Tex. 531, 160 S.W.2d 905:

“The courts of this State have repeatedly held that an employer has the right to exercise such control over an independent contractor as is necessary to secure the performance of the contract according to its terms, in order to accomplish the results contemplated by the parties in making the contract, without thereby creating such contractor an employee of such company.”

It is obvious that Cariker had to have certain rules such as the size and shape of the stacking strips, as well as the necessity of keeping enough on hand so the stacking of lumber would not be delayed. But the rules of operation did not change the status from an independent contractor to employee.

In Yarborough v. General Lloyds Fire & Casualty, Tex.Civ.App., 259 S.W.2d 644, it is stated:

“The fact that some control -is exercised over an independent contractor to the extent necessary to secure the performance of a contract according to its terms does not make him an employee or change his status from that of an independent contractor to that of an employee”

citing Smith Bros. v. O’Bryan, 127 Tex. 439, 94 S.W.2d 145.

The Judgment of the trial court is reversed and judgment is rendered that plaintiff take nothing.

ON MOTION FOR REHEARING

On' motion for rehearing, the majority.of this Court concludes the evidence raised an issue on the question of employment for the jury to determine, which they djd, favorably to the plaintiff. One of the important elements, suggesting employment, was the- testimony pf Baker, as follows:

' Question“Did they (Cariker) ever have anybody' coiné over, other than this foreman, come or' to hélp you all with anything there?”.. ■

Answer: “The only time he was interested was if I got behind on cutting the sticks'why, he would come over and shut me down on the stickmill, and he would tell me he would put a man up there that would cut enough strips for him, in other words, I would have to go home.”

The majority of the Court are of the opinion that this testimony indicates that Cariker hail control of the machinery and that he could fire plaintiff; and this, with the other evidence in the case was of such nature that the issue was properly submitted to and resolved by the jury.

Appellant also contends the finding of the jury that plaintiff was Cariker’s employee was against the great weight and preponderance of the evidence. After considering all of the evidence, both favorable to and contrary to the verdict, it is concluded by the majority that the verdict is not' so against the weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

The majority have further concluded that the testimony of plaintiff, both on the stand and in his deposition, was consistent with plaintiff’s'theory of the case that he was Mrs. Moore’s general employee, but Cariker’s special employee at the time of cutting stacking strips; the statement made by plaintiff did not constitute such unexplained judicial admission of fact as to make him an employee solely of, Mrs. Moore, and prevent his recovery herein. U. S. Fidelity and Guaranty Co. v. Carr, Tex.Civ.App., 242 S.W.2d 224.

In connection with the trial court’s definition of “employee”, the jury was instructed as follows:

“You are instructed that, for the ptir poses of the Workmen’s Compensation Law, a worker may have the status of employee in relation to a part of the work being ’ performed.” Defendant objected to this" portion of the charge for the reason it was ’ too broad and general, a comment on the weight of the evidence, a general charge, and failed to place the burden of persuasion upon the proper party. It is concluded that this instruction was not erroneous, and in ' any event the effect could not have been harmful to the defendant.

A careful consideration of the record reveals the findings of the jury that plaintiff had worked in the employment in question for the same or another employer for substantially the whole of -the year preceding the date of his injury,- and that plaintiff’s average weekly wage was $40.00 per week, and that plaintiff sustained total and permanent disability, were supported by the evidence.

The writer of this opinion is convinced that there was no evidence to sustain the finding of the jury that plaintiff was Cariker’s employee, and that such finding is so against the weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Flowever, the writer is in agreement with the disposal of the appellant’s other points on this motion for rehearing. ■ ■

The judgment of the trial court is affirmed.


text:
    TRINITY SAND AND GRAVEL COMPANY, Appellant, v. John Charles WALL, Appellee.
    No. 6534.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 8, 1962.
    Rehearing Denied Dec. 5, 1962.
    Crutchfield & DeCordova, Beaumont, for appellant.
    Beck & Beck, Beaumont, for appellee.
   STEPHENSON, Justice.

This action, instituted by John Charles Wall, appellee, against Trinity Sand and Gravel Company, appellant, sought recovery of the sum of $14,791.66, -which ap-pellee alleged was due him as a result of appellant having exercised an option which effected an extension of a non-competition agreement between the parties. Appellee contended that the agreement was extended for a period of three years eleven and one-half months and that appellant became obligated to pay for the full three years eleven and one-half-months extension in advance.

By way of answer, appellant, in substance, attacked the validity of the option provision; alleged that any contract proposed by it was never consummated, and alternatively it sought to have the trial court find that the option had been exercised for a period of only one year and that appellant was not indebted to appellee in any sum. Further in the alternative, appellant urged that if there were a valid contract and it had been extended for three years eleven and one-half months, that appellant'was entitled to pay for such extension in annual installments of $5,000 each.

By way of cross action, appellant alleged, in substance, 'there never was an enforceable contract consummated between the parties and sought recovery of the $5,000 it had previously paid appellee.

The case was submitted to the trial court upon an agreed statement of facts and judgment was rendered in favor of appel-lee in the amount of $14,791.66, plus interest thereon from the 31st day of January, 1961.

Following is the option provision of the agreement executed by appellant and a series of letters exchanged between the parties (formal parts omitted), which were submitted to the court in the agreed statement of facts:

Paragraph 4
" * * * the undersigned hereby grants to said Trinity Sand and Gravel Company the option to extend this ¡agreement beyond the term of my employment by the said Trinity by paying the undersigned at the rate of Five Thousand ($5,000.00) Dollars per year for such additional time, but in no event to exceed ten (10) years from date hereof * * *.
“s/ John Charles Wall “John Charles Wall”

On October 31, 1960 appellee wrote ap- . pellant the following letter:

“Gentlemen:
“You have terminated my employment effective October 31, 1960.
“Under date of October 15, 1959, I accepted a non-competition agreement with you which provided that I would not compete on the terms therein stated as long as I was in your employ. “This agreement further provided that you had the option to extend same beyond the term of my employment not to exceed 10 years from October 15, 1959, by paying me at the rate of $5,-000.00 per year for each year of such extension.
“I now call upon you to either exercise this option or relieve me therefrom. Though said agreement did not provide for a time or manner in which said option should be exercised, I hereby give you two weeks from this date within which 'to exercise or not exercise same, and if you exercise same, to provide the period of time you wish, and request that official notification of your action be made in writing and directed to me in care of J. R. Beck, P. O. Box 149, Beaumont, Texas. If you have not exercised such option within the two weeks period, I will consider myself relieved therefrom.
“s/ John Charles Wall “John Charles Wall”

November 15, 1960, appellant wrote the following reply to the above letter:

“Dear Mr. Wall:
“Reference your letter of October 31, 1960, in connection with the non-competition agreement between Trinity Gravel and Sand Company and yourself, we hereby exercise the option to extend that agreement for four years from October 15, 1960.
“It is our intention hereby that such agreement remain in effect until October 15, 1964, with the understanding that you were employed through October 31, 1960.”

January 3, 1961, appellee wrote the following demand letter to appellant:

“Gentlemen:
“Under date of October 15, 1959, I executed a Non Competition Agreement with you which provided that I would not compete against you upon the terms therein stated as long as I was employed by you, and further provided that you had the option to extend the termination of such agreement beyond the term of my employment by paying me at the rate of $5⅛000.00 per year for each year of such extension. “You terminated my employment on October 31, 1960 and I wrote you on October 31, 1960 calling on you to either to exercise such Agreement or relieve me from such Agreement.
“By letter dated November 15, 1960, you exercised such option and extended such Agreement for four (4) Years from October 15, 1960, stating that same would be in effect until October 15, 1964.
“This action extended such agreement for three (3) years and eleven and one-half (11½) months beyond my employment by you and you are therefore now indebted to me in the sum of $19.,-791.66, and I hereby make demand upon you for the payment of such sum. “Unless I have received payment by January 23, I will have no alternative but to force the collection thereof by the Courts.
“Will you please send such sum due in care of J. R. Beck, P. O. Box 149, Beaumont, Texas. Waiting to hear from you, I am,”

On January 25, 1961, appellant wrote the following letter to appellee’s attorney:

“Dear Dick:
“Enclosed herewith is a check for $5,000, payable to John Charles Wall, in payment for an extension of one year on the non-competition agreement between Mr. Wall and Trinity Sand and Gravel Company.
“This has reference to our letter of November 15, 1960, in which we exercised our option by notifying Mr. Wall of our extension of the said non-competition agreement until October 15, 1964. This check is in payment for the first full year, through October 31, 1961.”

. January 31, 1961, appellee wrote appellant the following demand letter:

“Gentlemen:
“By letter dated January 25, 1961, directed to Mr. J. R. Beck, you forwarded me a check for $5,000.00, which I have cashed and accept as a part payment on the monies you owe me.
“This leaves a balance due of $14,-791.66, and I hereby make demand upon you for the payment of such sum.
“Unless I have received payment thereof by February 13, 1961, I will have no alternative but to force the collection thereof by the Courts.
“Will you please send such sum in care of J. R. Beck, P. O. Box 149, Beaumont, Texas.
“Waiting to hear from you; I am,”

February 9, 1961 appellant wrote appellee the following letter:

“Dear Mr. Wall:
“Your recent letter in which you demand the full 4 years payment, at this time, under our non-competition agreement of on or about October IS, 1959, has pointed up clearly the difference that has existed since our otion letter dated November IS, 1960.
“It is obvious that no contract exists, and I therefore hereby request the immediate return of the check for $5,000.transmitted to you by our letter .dated January 25, 1961.”

In connection with the statement, of facts, the parties agreed that the only questions between them were questions of law concerning the construction and validity of Paragraph Number 4 of their contract as hereinbefore first set out. The questions were submitted to the Court by agreement that they should constitute the basis . for judgment. The substance, of the questions aije; characterized by the trial court’s following conclusions of law in response thereto:

‘T.
“As a conclusion of law, I rule and hold that the language in the said document above set out under Question of Law ‘A’ is not vague, uncertain and indefinite in determining and in defining the nature and extent of the duties and obligations of the parties. Further, concerning Question of Law ‘A’, I conclude and hold as a conclusion of law that there was and is a valid and enforceable contract between the parties hereto.
“2.
“In response to Question of Law ‘B’, I hereby hold and find as a conclusion of law that there was no irreconcilable conflict in the interpretations placed upon the provisions of said language by the parties to this suit. I further find as a conclusion of law that there was and is a valid and enforceable contract between the parties to this suit and that there had been a meeting of the minds- and that there has been mutual assent, and that there has been an offer and acceptance and valid consideration.
“3.
“I further find and hold as a conclusion of law that John Charles Wall is entitled to- recover of and from the Trinity Sand and Gravel Company the sum of $14,791.66 plus interest thereon from January 31, 1961'at the rate of 6% per annum, together with all costs of this suit, and that this instant conclusion of law is in response to Question of Law ‘C’.
“4.
“In response to Question of Law ‘D’, I hold and find ds a conclusion of law that the proper construction of the contract is not to allow Trinity Sand and Gravel Company to make payments in the amount of $5,000.00 each year, but that the said John Charles Wall should recover the said $14,791.66 plus interest and costs as above set out.
“5.
“In response to Question of Law 'E’, I find and hold as a conclusion of law that the said Trinity Sand and Gravel Company is not entitled to recover of and from John Charles Wall the sum of $5,000.00 plus interest or any sum of money whatsoever.”

Seeking to sustain the judgment of the trial court, appellee vigorously urges that appellant’s letter of November 15, supra, in and of itself effected a binding exercise of the option for three years eleven and one-half months. Such contention is without merit inasmuch as the agreement expressly provided that the option should be exercised by appellant paying five thousand dollars for each year it desired to hold appellee to the non-competition agreement. Appellant’s letter of November 15th did not meet this condition of payment imposed by the option agreement, hence no contract resulted by reason of said letter. City of El Paso v. Long, Tex.Civ.App., 209 S.W.2d 950.

Appellee asserts, however, that appellant is bound by admissions in its pleadings that its letter of November 15, 1960, constituted an exercise of the option. This contention is also without merit. The statement of facts was submitted to the trial court by the agreement of the parties herein that the same constituted the facts proven upon which judgment should be rendered without further record or need therefor. The trial court certified to the correctness of such statement. When a case is tried in a court below upon an agreed statement, and upon appeal such statement constitutes the statement of facts here, both courts are limited to the facts as agreed to. The pleadings filed in the case are immaterial and will be disregarded. Cousins v. Cousins, Tex.Civ.App., 42 S.W.2d 1043.

By its first point of error, appellant contends that the option was never exercised by it for any period of time. It urges that its letter of January 25, 1961, supra, enclosing a check for $5,000 in payment for an extension of one year on the non-competition agreement was only an offer on its part, which was not unconditionally accepted by appellee as shown by its reply letter of January 31, 1961, supra. Alternatively, by its second point, appellant contends that it only exercised the option for a period of one year.

We overrule appellant’s first point of error and sustain its second point. The payment of $5,000.00, evidenced by appellant’s check enclosed in its letter of January 25, 1961, was a valid exercise of its option to extend the non-competition agreement for- a period of one year. This did not constitute an offer by appellant, it constituted an unqualified acceptance for a period of one year of appellee’s offer contained in the option agreement, thus creating a binding contract between the parties for a period of one year only. McWhirter v. Morrow, Tex.Civ.App., 203 S.W.2d 317.

The judgment of the trial court is reformed in accordance with our foregoing conclusions, and as reformed the judgment is affirmed.

Affirmed.


author: McNEILL, Justice.

text:
    Mabel L. BEELER, Appellant, v. Arthur H. BEELER, Appellee.

      No. 6575.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 15, 1962.
    Rehearing Denied Dec. 12, 1962.

      Patterson, McDaniel & Moore, Houston, for appellant.
    Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, Ross Hightower, Livingston, for appellee.
   McNEILL, Justice.

This suit for divorce and partition of community property was instituted by ap-pellee against appellant. Appellant filed her cross action seeking divorce against appel-lee and for partition or other disposition of the property of the parties “according to the court’s instructions.” By supplemental petition, appellee alleged that certain real and personal property was his in his separate right and prayed that it be set aside to him.

The cause was tried by the court and judgment was rendered granting appellant a divorce and partitioning certain personal community property. The court also awarded to appellee, as his separate property, the home of the parties consisting of about 18 acres of land and dwelling thereon near Livingston in Polk County, and a vendor’s lien note representing the balance owing on the sale of appellee’s 425 acre ranch in Austin County.

Appellant asserts that the trial court erred in holding that the homestead of the parties was appellee’s separate property, and in holding that the balance owing on the vendor’s lien note on the 425 acre tract was his separate property.

The facts as to these two items of property follow. The parties married in 1956. At this time appellee owned the 425 acre ranch and a small herd of cattle thereon. They lived on this ranch from time of marriage for about 17 months. On September 12, 1957, this ranch was sold by the parties to W. O. Huggins, Jr. for $50,000.00, of which sum $16,275.00 was cash and the balance of $33,725.00 was represented by a vendor’s lien note, payable in 10 yearly installments, the first of which became due September 12, 1958. This note bears interest at the rate of 5% per annum payable annually in addition to principal installment. Included in the sale was the herd of cattle.

Appellant claims that in the first 17 months of their marriage calves were born to the cows in the herd on the ranch and that improvements were made upon the place and, therefore, the note was their community property. The trial court filed findings of fact and among these was the finding that a few calves were born to the cows owned by appellee prior to the marriage, but the exact number and approximate value at the time of sale of the ranch was not established in the evidence. He further found that no material improvements were placed upon the ranch which enhanced the value of the property, and that the improvements were in the nature of general maintenance. In view of these findings, we hold the trial court was correct in awarding appellee the vendor’s lien note upon the ground that it was his separate property. Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676.

Upon the day that the ranch was sold and the note above described executed, appellee obtained a loan in the amount of $15,000 from the Austin County State Bank. This loan was represented by a note executed by appellee and appellant, and was payable to the bank in six annual installments of $2,500.00 each which would make the installments fall due on the same day and month of each year for six years as the installments on the vendor’s lien note for the sale of the ranch fell due. It was shown that the bank required appellant’s signature on the note and that the Huggins vendor’s lien note was assigned by appel-lee to the bank as collateral security for the payment of the $15,000 note.

With $9,000.00 of the $16,275.00 cash consideration paid appellee for the farm, and the $15,000 borrowed from the bank, the home consisting of some 18 acres of land near Livingston was bought by appel-lee and appellant. The deed recited a cash consideration paid by them and was made to them as grantees.

Since this 18 acre tract was conveyed to the parties during marriage, it is presumptively community property. However, $9,000.00 of the consideration paid for the property was appellee’s separate property. His separate estate, therefore, owns a ¾⅛⅛ interest therein. Appellant insists that at least x%4ths of the purchase price of the Polk County home is community property. This, because her signature was required on the note and because there was no agreement existing between the Austin County Bank and the makers of the note that the money loaned was to be the separate property of appellee, and that the bank would look to appellee’s separate estate for payment of the note. The trial court has found that while the community estate was secondarily liable for payment of the note, there was no reasonable possibility that a resort to the community estate of the parties would ever have been necessary to obtain repayment of the loan. We hold that this is not equivalent to the requirement that in order that the title represented by the money borrowed from the bank would constitute the separate estate of appellee, that it was agreed at the time that such title would be his separate property, and that the bank would look only to his separate estate for satisfaction of the deferred payments. This is the test, as we understand it, set out in Gleich v. Bongio, 128 Tex. 606, 99 S.W.2d 881. To the same effect is Solether v. Trinity Fire Ins. Co., 124 Tex. 363, 78 S.W.2d 180.

Appellee relies upon Sparks v. Taylor, 99 Tex. 411, 90 S.W. 485, 6 L.R.A.,N.S., 381, to sustain the trial court’s finding and conclusion of law that the full title to the 18 acre homestead was appellee’s separate property. He says that the Gleich and Solether cases involved third-party creditors and the reason for the rule as stated in them is to prevent a fraud on creditors by an alleged agreement between spouses. Those cases did involve rights of creditors in connection with the affairs of the marital partnership. However, Goodloe v. Williams, Tex.Civ.App., 302 S.W.2d 235 (W. R.), was a case between the heirs of the husband and wife and did in no sense involve creditors. C. J. Chadick for the court in that case cited both the Gleich and Solether cases for the holding that in order for deferred payments upon the purchase of real estate during marriage to create separate property of one of the spouses, it must have been agreed at the time of the purchase between the parties to the deed that the land was to be the separate property of one of the spouses and that the deferred payments should be paid out of that spouse’s separate funds. See interesting comment on problem, 21 Texas Law Review, 38-41. Since writ of error was denied outright in the Goodloe case, and it along with the Gleich and Solether cases are later pronouncements upon the question than Sparks v. Taylor, we are controlled by the later pronouncements and hold that the money borrowed from the Austin County State Bank belonged to the community property of the spouses. Therefore the community estate owns a Wzith. interest in the home place.

Appellee insists, in any event, that the trial court’s action awarding appellee the homeplace should be upheld because of the late holding of our Supreme Court in Reardon v. Reardon, Tex., 359 S.W.2d 329. This case holds that Art. 4638, Vernon’s Ann.Texas Civil Statutes, does not prohibit divestiture of title to land belonging to the. community estate. In view, however, of the trial court’s finding that the home was appellee’s separate estate and as such set aside-to him, this may not have been the court’s order had he considered the place was part community.

While the ranch note was assigned to the bank as security for the $15,000 note, it was agreed that appellee should collect the yearly installments on this note and from these installments pay the yearly installments to the bank on its note. Appellant says that since she and appellee would go to this bank and deposit the installment collected on the Huggins ranch note in their joint account and at the same time give a check on this account to this bank for the $2,500.00 due the bank for the yearly installments on the $15,000 note that the depositing of the money in the bank commingled appellee’s separate funds so collected with the community funds, and thus the payments on the $15,000 note were from the community. At the time the money was borrowed from the bank, the court found that, “it was then agreed, that the- proceeds collected each year on- the note from W. O. Huggins, Jr., would'be paid to the Austin County State Bank for credit on the $15,000 note executed in exchange for a part of the consideration paid for the purchase of the Polk County property. * * * and it was the understanding of all parties that these payments would be made from and out of funds collected by Arthur H. Beeler on the note executed to his order by W. O. Huggins, Jr., in partial payment for the Austin County acreage sold to him by Arthur H. Beeler.” The trial court found that the payments made by Huggins to appellee upon the vendor’s lien note were used by appellee in paying the annual installments due September 12, of the years 1958-1960 on the $15,000 note, and' that it was not the intention of the parties to commingle such funds with the community funds of the parties. Thé bank made an unusual arrangement for collection on the Huggins note with appellee and appellant. While holding the note as collateral with the right to--collect its proceeds, it was agreed- that appellee would do so and use same to pay the yearly installments on the bank’s note. In view of this agreement, which appears to have been strictly complied with, the fact that the sum of $2,500.00, plus interest on the Huggins note was momentarily deposited in the joint bank account of the appellee and appellant, and thereupon withdrawn to pay the bank, cannot convert such $2,500 plus interest to community funds. Such sum, in each instance, was, in effect, earmarked a trust fund, in equity already belonging to the bank from the moment collected by appel-lee. Driskill v. Boyd, Tex.Civ.App., 181 S.W. 715; 2 Tex.Jur.2d 563. This being so, the installments paid upon the bank note were paid from the separate funds of appel-lee and his separate estate is therefore entitled to reimbursement therefor.

Appellant attacks numerous findings of the court. This is done in only one point of most general nature. Appellee contends the point is so multifarious, unique and uncertain we should not consider it. .Ap-pellee’s contention is sustained. Johnson-Sampson Cont. Co. v. W. & W. Waterproofing Co., Tex.Civ.App., 274 S.W.2d 926; Sheffield v. Lewis, Tex.Civ.App., 287 S.W.2d 531.

We have been concerned as to the proper judgment to render herein. ' No attack or complaint has been made with reference to the granting of the divorce or the disposition of the personal property between the parties, except as to the Huggins note. The questions here have been the title to the home place of 18 acres and said note. The right of reimbursement from the community estate to appellee’s separate estate for the deferred payments on this home place is an equity and mathematical certainty in a judgment disposing of such question is not required. Dakan v. Dakan, 125 Tex. 305; 83 S.W.2d 620; Puckett v. Puckett, Tex.Civ.App., 205 S.W.2d 124. The trial court’s judgment placed a $2,000.-00 lien in appellant’s favor upon the home place for one-half of the community improvements. This order provided that ap-pellee was given 90 days in which to pay said sum, or, if not done in such time, execution may issue for the sale Of the property. No supersedeas bond has been filed and we cannot tell what has been done in connection with the matter. There still remains a considerable sum to be paid by the community on the bank note. In view of all the equities between the parties, we conclude that this cause should be reversed as to that part of the judgment decreeing the home of the parties to be appellee’s sole separate property. It is decreed that he owns in his separate estate a %4ths interest therein; that the community estate of the parties own a Hikths interest therein, but appellee’s separate estate has paid three of the yearly installments on the bank note for the benefit of the community. This sum so paid is an equity against the community interest which should be taken into account along with the balance owing on the bank note. The trial court is instructed to hear evidence involving the equities of the parties as affecting the home place in conformity with this opinion, and render such judgment thereon as will be fair and just and will afford proper relief to the parties involved. Rule 434, Texas Rules of Civil Procedure. In all other respects the trial court’s judgment is affirmed. The costs of appeal are assessed ½ to appellants, to appellee.


author: BOYD, Justice.

text:
    Frank C. BLISS, Sr., Appellant, v. Stanley W. BLISS, Appellee.
    No. 16372.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 30, 1962.
    Rehearing Denied Dec. 28, 1962.

      Mehl, Williams & Ashley and John A. Kerr, Fort Worth, for appellant.
    Powell, Rauhut, McGinnis, Reavley & Lochridge, Tom Reavley and Larry E. Temple, Austin, for appellee.
   BOYD, Justice.

From a judgment upon jury verdict in favor of the plaintiff, Stanley W. Bliss, against the defendant, Frank C. Bliss, Sr., for compensation for the reasonable value of architectural services and for attorney’s fees, the defendant appeals.

Appellee alleged that, at appellant’s request, he rendered certain architectural services under an express agreement that he would receive six per cent of the total costs of buildings and site improvements for four projects, the compensation to be broken down as follows: 1.2 per cent for preliminary sketches and plans; 2.3 per cent for preparation of blueprints and specifications ; and 2.5 per cent for supervision of actual construction. In the alternative he sued on quantum meruit, asking for the reasonable value of the services allegedly rendered.

Appellant denied the existence of the contract alleged by appellee, claiming the agreement was that appellee would prepare and furnish any preliminary plans and sketches for development of any properties owned by appellant, as appellee wished, at his own cost and expense, and when such plans and sketches were approved and accepted by appellant, they would then enter into an arrangement for the development of such property and agree upon the architectural fee to be paid.

The case was submitted upon quantum meruit, and only as to preliminary sketches and plans for two of the four alleged < projects, namely, Eastwood Shopping Center and Ridge Crest Motel.

The appellant complains of the submission of two issues because he says the burden of proof in each issue was improperly placed on him. The issues were as follows:

“Special Issue No. 1: Do you find from a preponderance of the evidence that the plaintiff and the defendant entered into an agreement whereby the plaintiff would prepare and furnish preliminary sketches or plans for the development of the Eastwood Shopping Center at his own cost and expense?”

“Special Issue No. 3: Do you find from a preponderance of the evidence that the plaintiff and the defendant entered into an agreement whereby the plaintiff would prepare and furnish preliminary sketches or plans for the development of the Ridge Crest Motel at his own cost and expense ?”

In this connection the appellant asked for the submission of the following issues in lieu of Issues Nos. 1 and 3, which request was denied:

“Requested Issue No. 1; Do you find from a preponderance of the evidence that the plaintiff and the defendant did not enter into an agreement whereby the plaintiff would prepare and furnish preliminary sketches or plans for the Eastwood Shopping Center at his own cost and expense?”

“Requested Issue No. 2: Do you find from a preponderance of the evidence that the plaintiff and the defendant did not enter into an agreement whereby the plaintiff would prepare and furnish preliminary sketches or plans for the Ridge Crest Motel at his own cost and expense?”

It is appellant’s contention that his pleadings and evidence constituted a rebuttal defense or inconsistent theory by which the allegations of appellee’s petition and testimony were thus negatived; and that the law imposed the burden on appellee, as plaintiff, to secure an affirmative finding that the contract alleged by appellant was not the actual contract under which the services were rendered.

An architect may, even though his contract expressly provides for compensation, recover for the reasonable value of services rendered if he proceeds to trial upon this theory of his case. 6 Tex.Jur.2d, sec. 27, p. 128.

In Frost v. Grimmer, Tex.Civ.App., 142 S.W. 615, an architect sued on quantum meruit for the reasonable value of architectural services rendered for the defendant. It was shown that such services had been rendered at the request of the defendant. The defense was that the services were performed under an agreement that the plaintiff was not to be compensated for his services unless certain bonds were sold by the defendant. In the charge the burden of proof on this defense was placed on the defendant. From a verdict and judgment favorable to the plaintiff the defendant appealed and claimed error in the placing of the burden of proof. The court said:

“The plaintiff alleged that he had made certain plans and specifications for the defendant, and under the testimony it was undisputed that he had done so. As the law would imply a promise to pay for such work done, it is clear that when plaintiff proved this much of his case he could have recovered upon it.

“The defense of the defendant was, in effect, in confession and avoidance, being to the effect that plaintiff did make such plans, etc., but that defendant was not to pay for them unless certain bonds were sold, and that the bonds had not been sold.

“In this state of the record, we are of the opinion that the burden of proving that the plans were not to be paid for unless the bonds were sold was upon the defendant, and that the court did not err in so telling the jury.”

In Kramer v. Wilson, Tex.Civ.App., 226 S.W.2d 675, the plaintiff, who was an attorney, brought a suit on quantum meruit for legal services performed for the defendant. The defendant admitted that the services were performed, but contended that they were rendered gratuitously. This defense was not pleaded. The plaintiff objected to any evidence which might tend to show that he rendered the services gratuitously. Such evidence, however, was admitted, but the trial court declined to submit an issue to the jury covering the claimed defense. The Court of Civil Appeals said: “The contention that appellee performed the services but that he did so ‘gratuitously’ is one in confession and avoidance, and is a special defense; to be available to appellants in this case it must have been plead. Rule 94, Texas Rules of Civil Procedure.”

In McDonald, Texas Civil Practice, sec. 12.10, p. 1071, it is said: “The burden is on the defendant, however, to prove his allegations in avoidance.”

Appellant argues that Rice v. Thompson, Tex.Civ.App., 239 S.W.2d 137, supports his contention. We think that case is distinguishable because there the issue was whether the plaintiff was to be paid a commission or a salary, and the submission was upon contract, and here it was upon quantum meruit only. Appellant’s points are overruled.

Judgment 'affirmed.