author: RICHARDS, Justice. HUGHES, Justice

text:
    George W. JOHNSON, Appellant, v. E. J. KOENIG et al., Appellees.
    No. 10914.
    Court of Civil Appeals of Texas. Austin.
    Filed Jan. 24, 1962.
    Rehearing Denied Feb. 7, 1962.

      T. P. Hull, J. Douglas McGuire, San Antonio, for appellant.
    Simon & Ratliff, William D. Ratliff, Jr., Fort Worth, Ed Mann, John F. Ryan, Fans-ler & Fansler, Hall & Hall, Robert O’Conor, Bismark Pope, Mann, Byfield & Castillon, Laredo, for appellees.
   RICHARDS, Justice.

Suit was brought by George W. Johnson, appellant, in trespass to try title to the mineral estate in four sections of land approximating 2560 acres situated in Webb and Zapata Counties, Texas, against E. J. Koenig and others as defendants. George Buck and others intervened as parties defendant, defendants and intervenors being appellees herein. The case was tried to the Court without a jury upon an agreed statement of facts resulting in a judgment that appellant take nothing by his suit against all of the defendant and intervenor ap-pellees, from which judgment appeal was perfected to this Court.

Appellant’s asserted title was based solely upon a deed executed by David M. Stiles as substitute trustee appointed by appellant as the holder of two past due installments aggregating $389.05 on a note payable to the Federal Land Bank of Houston, in the principal sum of $5,000.00 secured by a deed of trust to the property involved. The Trial Court held that the trustee’s deed upon which appellant based his title was void and therefore entered the “take nothing” judgment.

At the outset, it may be stated that the statement of facts filed in his Court consists of photostatic copies, many of which are poorly prepared, and without an index or proper paging. As a result this Court has not been helped by the numerous references to the statement of facts contained in the voluminous briefs filed by the various parties.

This controversy grows out of a deed of trust executed by Prudencio Trevino et ux. on September 30, 1924 to M. H. Gossett as trustee for the Federal Land Bank of Houston, hereinafter referred to as the Bank, covering land involved herein to secure their note in the principal sum of $5,000.00. Trevino died November 20, 1926 leaving a last will and testament which was admitted to probate February 11, 1927, Gordon Gibson being appointed by the County Court of Zapata County, Texas as administrator with the will annexed. The Federal Land Bank filed a claim on the Claims Docket of the Probate Court for $4,809.89 based upon the unpaid balance of the above note and requesting an allowance of attorney’s fees as provided therein, which claim was allowed by the administrator and approved by the Court.

The Bank then applied to the Court for an order of sale for all property covered by the deed of trust, the property involved herein, in order to satisfy its claim, which request was granted by the Court and the property ordered sold. The order provided for the sale of all the land covered by the deed of trust “or such part thereof as may be necessary to satisfy said incumbrance” to be sold by the administrator at private sale. On November 10, 1928 the administrator filed his report of sale stating that pursuant to the order of the Court he had sold to P. N. McCullough an undivided one-sixteenth (¾6⅛) royalty interest in all the land covered by the deed of trust for a cash consideration of $2560.00, which report was approved by the Court, who ordered the administrator to execute the necessary conveyance of the property, the deed being executed November 27, 1928.

In 1932 the devisees under Trevino’s will having petitioned the County Court to close the administration, the administrator filed his final account with the Court which was approved and the Court ordered the administration closed on August 1, 1932. The final account of the administrator reveals that subsequent to the sale of ¾6⅛ royalty above referred to he paid $2700.00 to the Bank and that as of the date of the final account there was a balance unpaid on the Bank indebtedness amounting to $2560.00.

On March 5, 1937, the Bank executed an assignment of deed of trust lien to George W. Johnson but it was not filed for record in the Deed of Trust Records of Zapata County until April 19, 1938. The instrument recited the death of M. H. Gossett, Trustee, on May 13, 1934 and the appointment by the Bank, as the owner and holder of the indebtedness evidenced by the note secured by the deed of trust, of A. C. Williams as substitute trustee pursuant to the authority contained in the deed of trust and that in consideration of the payment by George W. Johnson of the sum of $389.05, representing two past due installments on the $5,000.00 note, the Bank assigned to Johnson the deed of trust lien securing the payment thereof, which transfer and assignment was “subject to the express conditions hereinafter mentioned”, which are in part as follows:

“(2) That the installments hereby transferred are hereby made, and shall forever remain, a second and inferior lien to the lien securing the payment of the remainder of said note now owned by said Bank, together with interest to accrue thereon, including balance owing on installments which matured on the first days of January 1933, July 1933, January 1934, July 1934 and January 1935, as extended.
(3) That any foreclosure proceedings instituted on the installments hereby transferred shall not, in any manner whatsoever, affect the rights of said Bank or said Association as such rights existed at and before the execution of this assignment.
(4) That the lien now existing in favor of said Bank upon and against the land described in said deed of trust to secure said Bank in the payment of the remaining part of said note, together with interest to accrue thereon, shall be and remain superior to the lien securing the installment hereby asssigned.
(5) That any release executed by the assignee herein of the lien securing the payment of the installments hereby transferred shall not affect, in any manner, the lien existing in favor of said Bank, securing it in the payment of the remainder of the debt owing it.
(6) The acceptance of this assignment by the assignee shall be and is hereby made an agreement upon his part to the conditions above recited.
Subject to the above conditions, said Bank does hereby bargain, sell, convey and assign unto the said George W. Johnson, all of the right, title and interest owned or held by it in said land by virtue of the installments herein conveyed and assigned and by virtue of the deed of trust securing the payment thereof, in so far as said deed of trust secures the installments hereby transferred, but not further.”

On April 21, 1938 L. W. Stieren executed an affidavit to The Public which was filed and recorded on April 25, 1938 in the Deed Records of Webb and Zapata Counties. The affidavit recited the execution of the deed of trust by Prudencio Trevino et ux. to M. H. Gossett, Trustee for the Bank to secure the payment of the $5,000.00 note; the conveyance by the administrator with the will annexed of the Trevino Estate under the mineral deed to P. N. McCullough; that the affiant owned certain mineral interests in the property by virtue of mineral deeds to him from McCullough and others as grantors; that on April 18, 1938 there was an unpaid balance on the $5,000.00 note in favor of the Bank amounting to $2447.60, “which amount included $1,945.14 unmatured principal and the sum of $502.46 delinquent installments on said loan,” together with delinquent taxes amounting to approximately $1,000.-00; that because of such delinquency the Bank was threatening foreclosure proceedings under its superior lien and that affiant in order to protect his rights in said land on April 18, 1938 paid to the Bank the sum of $2447.60 being the total amount of principal and interest due the Bank on the note and requested the Bank to execute to him an assignment of its debt and deed of trust lien against the property but which assignment had not yet been executed and delivered to him for record; that by payment of the unpaid balance due the Bank, he became subrogated to all of its rights, liens and equities under the deed of trust and that he had a valid and subsisting lien against the property in question to secure the payment of the debt purchased from the Bank in the sum of $2447.-60, together with interest and that the affidavit was made with the purpose of placing all persons contemplating the purchase of the property in question or any interest therein on notice that affiant was the owner of a valid and subsisting lien against the 2560 acres of land for the purpose of securing the payment of the debt purchased by him from the Bank. On April 21, 1938 Stieren assigned the unpaid indebtedness, together with the deed of trust lien securing it, to E. H. Stickney, which assignment was filed and recorded in the Deed of Trust Records of Webb and Zapata Counties on April 25, 1938.

On May 3, 1938 A. C. Williams, the substitute trustee who had been designated as a successor to M. H. Gossett, Trustee by the Bank, executed a refusal to act as substitute trustee for the sale under the deed of trust at the request of George W. Johnson as assignee of the past due installments assigned to him by the Bank, in enforcement of the trust only insofar as it related to the past due installment indebtedness assigned to Johnson, but specifically reserved all other powers, duties and obligations imposed upon him as substitute trustee under his original appointment as to all other matters. The instrument was filed and recorded in the Deed of Trust Records of Zapata County on May 14, 1938.

On May 13, 1938 George W. Johnson appointed David M. Stiles as substitute trustee under the deed of trust to M. H. Gos-sett in favor of the Bank which instrument recited that he had requested A. C. Williams who had been named and appointed to act as substitute trustee under the deed of trust to sell the land in satisfaction of the $389.05 indebtedness represented by the two past due installments which had been assigned to him by the Bank and that Williams having refused to act as such substitute trustee and make the sale of the property under the deed of trust and had defaulted, he designated and appointed David M. Stiles as substitute trustee to act under such deed of trust, which appointment was filed and recorded in the Deed of Trust Records of Zapata County on December 9, 1938. On the same date David M. Stiles as substitute trustee executed and delivered his trustee’s deed to appellant purporting to convey title to the 2560 acres of land in controversy which had been sold by him on December 5, 1938 at public sale at the Court House door at Zapata County, Texas, pursuant to notices posted in public places in Zapata and Webb Counties. The trustee’s deed contains the following recitation:

"Such conveyance, however, being subject to the announcement made at said sale by said substitute Trustee as follows: ‘that said sale shall be subject to the recorded rights and interests of L. W. Stieren and of such rights as he may recover or establish as set forth in his pleadings in Cause No. 12,388 in the District Court of Webb County, Texas.’ ”

On December 4, 1958 the Bank executed a release of the deed of trust which secured the $5,000.00 note above referred to which was filed and recorded in the Deed of Trust Records of Zapata County January 20, 1959.

Appellant’s second point of error asserts that the Trial Court erred in holding that the appointment of the substitute trustee by appellant was invalid and therefore the trustee’s sale and the deed executed pursuant thereto in favor of appellant was void and conveyed no title to the lands in controversy. In response to appellant’s request for findings of fact and conclusions of law the Trial Court concluded as a matter of law that the attempted appointment of a successor trustee by appellant was invalid and hence the substitute trustee’s deed was of no force and effect.

The deed of trust executed by Trevino et ux. to M. H. Gossett, Trustee, to secure the $5,000.00 note payable to the Bank above referred to contains a provision that if the trustee dies or removes from the State of Texas or is disqualified from acting in the execution of the trust or shall fail or refuse to execute the trust when requested by the owner or holder of the debt (the Bank) to do so, the owner and holder shall have full power to appoint by written instrument duly recorded in said county, a substitute trustee and if necessary several substitute trustees in succession “who shall succeed to all of the estate, rights, powers and duties of the said M. H. Gossett,” and the mortgagors (Trevino et ux.) ratify and confirm all the acts which M. H. Gossett, Trustee, or his successors should lawfully do by virtue thereof.

The deed of trust provided that if default was made in the payment of any of the semi-annual installments of the $5,000.-00 note secured by the deed of trust, the Bank or its assigns had the right to sell the property in satisfaction of such defaulted payment without declaring the whole debt due, the sale to be made upon the same terms and conditions as provided for in the event the Bank exercised its option and declared the whole note due.

The deed of trust further provided that:

“Save and Except that where the sale is made because of the default of one or more of the semi-annual payments such sale shall be made subject to the unmatured part of the note secured by this deed of trust, and it is agreed that such sale shall not in any manner affect the unmatured part or the debt secured by this deed of trust, but as to such unmatured part this deed of trust shall remain in full force and effect, just as though no sale had been made under the provisions of this paragraph; and it is specifically agreed that no sale under the powers conferred in this paragraph shall exhaust the right of sale under the powers conferred in the first preceding paragraph hereof relating to the maturity of the entire debt, nor shall any sale exhaust the power of sale to enforce the payment of any subsequently maturing installment, the payment of which may be defaulted, and it is agreed that an assignee holding aivy installment or installments of the note hereby secured, shall have the same powers as are hereby conferred on the Federal Land Bank of Houston to request the trustee named herein, or his successors as herein provided for, to sell the property herein conveyed (Italics supplied.)

In Hart v. McClusky, Tex.Civ.App., 118 S.W.2d 1077, 1079, error ref. the Court construed a deed of trust which was practically identical with the deed of trust involved herein. In passing upon the italicized portion of the deed of trust, supra, the Court held as follows:

“It will be observed from the quoted provision that an assignee of any installment or installments of the note, upon default in their payment, has the right to call upon the trustee named in the deed of trust or his successors ‘as herein provided for’ to make the sale. There is no provision under which an assignee of a portion only of the indebtedness is authorised to appoint a trustee or substitute trustee. He is confined to the trustee or substitute named in the deed of trust or appointed under its provisions by the Federal Land Bank. * * *
“Under the law, the power to appoint a trustee or a substitute trustee to make sale of one’s property, is not inherent in the creditor. Such authority is derived solely from the deed of trust and its provisions must be strictly followed. If the grantor had been willing to entrust such power of appointment to any assignee who may become the owner of any portion of the indebtedness secured by the deed of trust, it would have been so provided in the deed of trust; but since that power was restricted and confined to the Federal Land Bank, it cannot be enlarged by judicial fiat.” (Citing cases.) (Italics supplied.)

As shown by his affidavit L. W. Stieren paid the .remaining balance of principal indebtedness and interest on the $5,000.00 note to the Bank on April 18, 1938 to protect his interest in the lands covered by the deed of trust and thus became subrogated to all the rights and powers of the Bank under the deed of trust. Where a person other than the principal obligor who has paid the mortgage indebtedness on lands in which he has an interest, he is subrogated to the rights of the mortgagee since by such payment he is regarded as an equitable assigneee of the mortgage and may keep alive and enforce the mortgage lien insofar as is necessary for his protection. First National Bank of Houston v. Ackerman, 70 Tex. 315, 8 S.W. 45, 47; 39 Tex.Jur., Subrogation, Sec. 21. Since on May 13, 1938 L. W. Stieren was the owner and holder of the principal indebtedness secured by the deed of trust, he was the only person or entity with the power to appoint a substitute trustee.

But by paying the debt of another person the payor does not ipso facto become subrogated to the rights of the creditors since he acquires only a right to sub-rogation which must be affirmatively asserted before the equitable assignment can actually take effect which right can only be established by a judicial proceeding. Faires v. Cockerell, 88 Tex. 428, 31 S.W. 190, 194, 639, 28 L.R.A. 528; 39 Tex.Jur., Subrogation, Sec. 41. After L. W. Stieren had paid the remaining balance due on the $5,000.00 note to the Bank thereby acquiring a right to be subrogated to the rights of the Bank under the deed of trust, he assigned all of such indebtedness and rights under the deed of trust on April 21, 1938 to E. H. Stickney, who filed suit in the District Court of Zapata County-naming appellant and others as defendants.

The filing of suit by Stickney as the assignee of Stieren of the balance due upon the note to the Bank and the lien securing the same which had been paid by Stieren, fully and completely subrogated Stickney to all the rights of the Bank under the deed of trust.

The filing and recording of Stieren’s affidavit to The Public on April 18, 1938 placed appellant upon notice that Stieren had succeeded to the superior lien held by the Bank under the deed of trust by the terms of which only the holder of the principal obligation or his successor or as-signee thereof had the power to appoint a substitute trustee. Under the rule announced in Hart v. McClusky, supra, the appointment of David M. Stiles was void and as a result any proceedings by the substitute trustee under the provisions of the deed of trust were void.

Appellant cites Continental State Bank of Big Sandy v. Pepper et al., 130 Tex. 71, 106 S.W.2d 654, in support of his position. The question there involved was whether or not the owner of all of the indebtedness secured by a second deed of trust which was inferior to the lien held by the Federal Land Bank under a prior deed of trust could appoint a substitute trustee to make a sale under the junior deed of trust. The Court held that the owner of the indebtedness secured by the junior deed of trust had the power to appoint a substitute trustee under the provisions of that deed of trust. In our opinion the Pepper case is not applicable here.

Since it is our opinion that appellant’s appointment of David M. Stiles as substitute trustee under the original deed of trust to M. H. Gossett in favor of the Bank to secure the payment of the $5,000-00 promissory note executed by Prudencio Trevino et ux. was not authorized under but contrary to the provisions of the deed of trust and therefore void, the subsequent sale and execution of the deed to-appellant by the substitute trustee were nullities. Appellant’s title to the lands in question being based solely upon the void deed executed by the substitute trustee, the judgment of the Trial Court that appellant “take nothing” by its suit was correct. Appellant’s second point of error is overruled.

In view of this holding, it is not deemed necessary to pass upon appellant’s first point of error. The judgment of the Trial Court is in all things affirmed.

HUGHES, Justice

(concurring).

Since the Supreme Court refused a writ of error in Hart v. McClusky, 118 S.W.2d 1077, Amarillo Civil Appeals, this Court properly follows the declarations of law found in the Court’s opinion and as set forth in the opinion of Associate Justice Richards.

I do not doubt the correctness of the conclusion reached in McClusky. There the contention was made that only the holder of an assigned portion of the debt, who was seeking foreclosure, could appoint a substitute trustee upon failure or refusal of the original trustee to act, and that the appointment of a substitute trustee by the Federal Land Bank, holder of the ■remaining indebtedness secured by a superior lien, was invalid and that the sale made by him was void. This contention was disallowed, and the authority of the substitute trustee sustained. In the present suit the authority of the substitute trustee appointed by an assignee of a portion of the debt is denied, even though the trustee appointed by the assignor has refused to act. This is a major departure from the holding in McClusky and, I believe, should be closely scrutinized by the Supreme Court. The effect of our de-cisión, based on the language of McClusky, is to deny to an assignee of a portion of the debt the right of foreclosure of his lien under the power of sale in the deed of trust.

Reference is made to portions of the deed of trust in suit described or set out in the opinion of Associate Justice Richards. In addition, I quote the following therefrom:

“If the said trustee shall die, or shall remove from the State of Texas, or shall be disqualified from acting in the execution of this trust, or shall fail or refuse to execute the same when requested by the owner or holder of said debt so to do, said owner or holder shall have full power to appoint, by written instrument duly recorded in said County, a substitute trustee, and, if necessary, several substitute trustees in succession, who shall succeed to all the estate, rights, powers, and duties of the said M. H. Gos-sett, and Mortgagors do hereby ratify and confirm any and all acts which the said M. H. Gossett, Trustee, or his successor or successors in this trust, shall do lawfully by virtue hereof.”

Is an assignee of a portion of the debt an “owner or holder of said debt” within the terms of the deed of trust?

The Court in McClusky treats only the owner of the unassigned portion of the debt as being an “owner or holder.” What the holding would be if all the debt were assigned is not stated.

A trustee under a power of sale, as here, has little discretion and if he acts properly it is of little consequence to any concerned party that he is trustee A or trustee B. It is of considerable consequence to the parties, however, that if trustee A fails or refuses to act trustee B cannot lawfully act.

If the question were an open one for this Court, I would hold that the owner of an assigned portion of the debt is “an owner or holder of said debt” and would be entitled to appoint a substitute trustee if the trustee or substitute trustee appointed by the original creditor failed or refused to act. I believe this conclusion to be in accordance with a fair construction of the terms of the deed of trust by which the rights of the parties are measured.

      . See Johnson v. Stickney, Tex.Civ.App., 152 S.W.2d 921, 924, 925, no writ history.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    T. L. McDONEL, Appellant, v. Burt AGAN, Appellee.
    No. 10925.
    Court of Civil Appeals of Texas. Austin.
    Jan. 24, 1962.
    Rehearing Denied Feb. 14, 1962.

      McDonald, Spann & DeAnda, Corpus Christi, for appellant.
    Mahoney, Shaffer & Hatch, Corpus Christi, for appellee.
   HUGHES, Justice.

This suit was commenced by appellee, Burt Agan, doing business as Agan Insurance Agency, against T. L. McDonel, in the form of a sworn account to recover $779.41 shown by such account to be due appellee for unpaid insurance premiums on policies written and issued by appellee for appellant. By an amended petition appellee enlarged the amount of his claim to $850.58 and, in addition, sought the recovery of $145.00 as, attorneys’ fees, interest and costs.

By an amended answer, appellant pleaded, in part:

“Plaintiff classified defendant’s insurance risks and coverages wrongly, thereby charging the defendant higher premiums for insurance than the defendant needs, operations and classifications justified.”

In addition, appellant filed a cross action in which he sought recovery of $996.58 for alleged overpayment of his account with appellee, reasonable attorneys’ fees and costs. The basis of this cross action is found in these paragraphs therefrom:

“In the latter part of February and the month of March, 1960, the defendant advised the plaintiff that he had reason to believe he was being classified in higher premium categories than his business operations called for, and that he had been issued policies resulting in double coverage and had been issued policies that provided no coverage. The defendant ordered the plaintiff to cancel such policies or for those that were about to expire, to notify him of the expiration so that he could replace them in the proper classifications and at a lesser cost. This the plaintiff failed to do to the defendant’s loss and damage in the amount of $996.58.
“The defendant furthermore shows that the plaintiff has issued unnecessary insurance polices creating double insurance, that he has issued insurance that granted no coverage, has rated and classified the defendant’s business in higher premium brackets, which actions and conduct on the part of the plaintiff went unnoticed until just prior to notification to cancel, to the defendant’s loss and damage in at least the amount of Nine Hundred Ninety Six Dollars & Fifty eight cents ($996.58) over and above any offsets or credits claimed by the plaintiff.”

In a nonjury trial judgment was rendered for appellee for the amount of its account $850.58, and for $145.00 attorneys’ fees and for interest at 6% per annum from date of judgment. Appellant was denied any relief under his cross action. The reason for this denial is found in the judgment from which we quote:

“* * * it appearing that the Texas Insurance Commission having not ruled and entered an order on the facts, urged by the defendant, of classifications and endorsements for the purpose of rate determination, the Court is of the opinion and finds that this Court does not have jurisdiction to consider such facts; * * *
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that said Judgment herein ordered shall in no wise prejudice any right, remedy or defense available to defendant through the Texas Insurance Commission.”

By a much, and needlessly, belabored Bill of Exceptions No. 3, appellant showed the offer of evidence and expert testimony in support of his pleaded defenses, the objection to it, the statement of appellant’s counsel of the purpose of such evidence and the ruling of the Court excluding it. We set out these proceedings, without, however, giving a résumé of the testimony and evidence offered:

“Q Now, Mr. White, do you — what information do you use, Mr. White, in issuing policies concerning the operation of the trucks of Chief’s Moving and Storage in connection with their operation as agent for Global and also their operation in the State of Texas?
“MR. MAHONEY: If the Court please, at this time we renew our previous objection and restate as follows. The plaintiff objects for the reason that the question seeks to elicit from the witness information which is immaterial and irrelevant so far as — and inadmissible so far as the issues involved in this case are concerned for reason that the Court does not have jurisdiction to determine the question of what rate classification or whether there was error in rate classification, or how and under what circumstances or what manner Chief’s Moving and Storage should be classified and rated, and therefore has no probative value in so far as the issues before the Court at this time.
“THE COURT: Your objection is sustained.
“MR. SPANN: Very well. Your Honor, let me say that I offer this in rebuttal of the claim of the Plaintiff that they issued policies of insurance for which they are entitled to collect premiums; that this is in rebuttal of their petition which claims that they are entitled to the premiums shown on their account; this is offered to rebut the claim that their account is a just account; this is offered in rebuttal of their affidavit that all just and lawful offsets against this account have been allowed; this is offered to show that Agan Insurance Company did not charge the legal premium provided by the manual; that is offered to show that the'Agan Insurance Company issued a policy which under the manual would come under Exception 3 of Rule 34, having Endorsement 129a attached, giving him only the coverage provided by it, and to show that he actually charged the premium that the manual provided to be charged for a policy issued under Exception No. 2, which gives him a Class of 2, less twenty per cent.
“THE COURT: Well, the Court’s ruling is on the basis that it is a fact question — condition precedent to the Court taking jurisdiction must be decided upon by the Board of Insurance Commissioners.
“MR. SPANN:’ All right, sir. I would like to go ahead and develop this evidence on bill of exception.
“THE COURT: All right.”

If appellee’s objection is sound, then one half of this case, appellee’s half, has been tried and the other one half, appellant’s half, has been relegated to the State Board of Insurance for trial. We are not informed in what manner, time or place the twain shall meet.

The Trial Court must have found that the insurance premiums charged by appellee for the policies issued to appellant were proper and in accordance with the rules, regulations, rates, classificátions and manual of the Insurance Board. This was essential to the judgment rendered. Yet, the Court refused to hear evidence of appellant to the contrary.

If the State Board of Insurance has jurisdiction to hear and determine one side of this controversy, it should have jurisdiction to hear it all. It is our opinion that the State Board of Insurance has no jurisdiction of a suit on a sworn account, be the account for insurance premiums or for butter and eggs. If it has, then the fall and decline of the judicial branch of the Government is well on its way.

Appellant disclaims, and his disclaimer is substantiated by the record, any attack on any rule, regulation, rate, classification, manual, policy form or order of the State Board of Insurance. In fact, he affirmatively states that he is relying “upon the classifications, rates, endorsements, policy forms, rules and regulations established by the Board.”

It is, therefore, obvious, and we so hold, that this suit is not within the purview of Art. 5.11, Texas Insurance Code, V.A.C.S., which provides in part that “Any policyholder or insurer shall have the right to a hearing before the Board on any grievance occasioned by the approval or disapproval by the Board of any classification, rate, rating plan, endorsement or policy form, or any rule or regulation established under the terms hereof, such hearing to be held in conformity with rules prescribed by the Board.”

Appellee states that: “The language of the above statute makes it clear that any policyholder or insurer shall have the right to a hearing before the Board on any grievance occasioned by a dispute which arises over any classification, rate, rating, plan, endorsement or policy form, or any rule or regulation established under the terms.”

We completely disagree with this statement. This statute limits the Board to hearing grievances occasioned by the Board’s approval or disapproval of the matters mentioned. It is the order, etc. alone, which is subject to review. The statute contains no language intimating that the Board is vested with jurisdiction of disputes between third parties arising from the enforcement or application of the rules and regulations of the Board.

The only case cited by appellee in support of the Trial Court’s ruling on lack of jurisdiction is Red Arrow Freight Lines v. American Fidelity and Casualty Company, Inc., 225 S.W.2d 240, Dallas Civil Appeals, no writ history. This case involved a cross action by appellant for the refund of overpaid insurance premiums. The question was whether or not the appellant corporation, due to a change in its corporate structure, was entitled to an experience rate authorized by an endorsement on its policies. The Court held that the Insurance Board not having acted on the matter, the Court was without jurisdiction to do so. In its opinion the Court stated:

“There having been no final action by the Board of Insurance Commissioners on the fact questions here, or approval order thereon, our holding is not in conflict with the judgment of the Court of Civil Appeals in Brown & Root v. Traders & General Ins. Co., 135 S.W.2d 534 (writ ref. cor. judg.). It is in conflict with part of the reasoning in the opinion.”

The case cited [Brown and Root] was also a cross action for overpayment of premiums due to erroneous rate classification according to its experience record. Recovery was allowed. The opinion is long, and we quote only the following therefrom:

“The Legislature is competent to set up an agency to prescribe insurance rates and apply them to workmen’s compensation insurance policies, and can, of course, vest such agency with ample powers to enable it to function properly. But the Legislature cannot deprive the courts of their judicial function to determine the legal rights of insurance companies and policy holders, consequent upon a correction being made in rate-application by such legislative agency, and vest such purely judicial function in such agency. Neither has the Legislature attempted to deprive the courts of such judicial function and confer it upon the Insurance Department, nor does the Department pretend to any authority to exercise such judicial function. * *
“There is nothing very unusual about errors being made in the application of ' rates, where rates are prescribed by law. The instance most familiar to all is that of freight rates. The occasion for most suits to recover reparation for overcharges or undercharges on shipments of freight, is the claim that some one wrongfully classified the commodity which was the subject-matter of the shipment, and that there was, as a consequence, the wrong rate applied and collected.
“* ⅜ * the Department could not abolish the right to recover, and the obligation to make, reparation consequent upon correcting a rate-application, nor deprive the courts of jurisdiction over the action to recover such reparation.”

Other cases involving the right to sue for additional premiums or excessive insurance premiums paid due to misapplication of rates or classifications are Oil Well Drilling Co. v. Associated Indemnity Corp., 153 Tex. 153, 264 S.W.2d 697, Alamo Express Co. v. American Fidelity and Casualty Co., 250 S.W.2d 602, San Antonio Civil Appeals, no writ history, Texas Soap Mfg. Co. v. American Automobile Ins. Co., 227 S.W.2d 376, Galveston Civil Appeals, writ ref., N.R.E., and Houston Fire and Casualty Ins. Co. v. Farm Air Service, 325 S.W.2d 860, Austin Civil Appeals, writ ref., N.R.E.

In Alamo Express, supra, the Court, Justice Norvell writing, held:

“The State Insurance Commission has statutory jurisdiction over automobile insurance rates and classifications under the articles above cited. Those rates and classifications have been set. Appellee’s suit was based thereon. The Bexar County District Court has jurisdiction of a suit to collect unpaid insurance premiums and that jurisdiction is not defeated by an application made, after such suit was filed, to the Insur-anee Commission seeking a review of rates and classifications theretofore established. The trial court was correct in overruling the pleas of abatement and estoppel, and holding that essentially the suit was one 'on a sworn account based on credit extended by the insurer to the insured.’ ”

Our suit [Houston Fire, supra] was on a sworn account to recover additional insurance premiums on the ground that certain employees had been misclassified under classifications established by the Insurance Board. Neither the parties, the Trial Court, this Court nor the Supreme Court questioned the jurisdiction of the courts to determine the issue.

We have no doubt concerning the jurisdiction of the Trial Court to hear and determine the entire controversy here presented.

The judgment of the Trial Court is reversed and this cause is remanded.

Reversed and remanded.

      . Appellant prepared and submitted to the Trial Court for approval Bills of Exception Nos. 1 and 2 presenting the testimony of appellee and the witness Harold White relative to the defenses pleaded by him. These bills were disallowed because, as the Court stated “having been submitted to adverse counsel, who objected to the narrative form, thereo/ pursuant to R.C.P. 877(a) and by reason thereof said bill” is disallowed. The rule referred to does not relate to this matter. Rule 372, Texas Rules of Civil Procedure, which does regulate preparation of Bills of Exception does not require that evidence offered, and rejected, be set out in question and answer form.


author: WILLIAMS, Justice.

text:
    Victor FRANKFURT, Appellant, v. Jimmie W. WILSON, Appellee.
    No. 15942.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 29, 1961.
    Rehearing Denied Jan. 26, 1962.

      JT. Tom Sample, Dallas, for appellant.
    Hutchison, Shipp & Look, Jack B. Look, Dallas, for appellee.
   WILLIAMS, Justice.

Action on promissory note and for fraud. In his original petition Jimmie W. Wilson, as plaintiff, sued Victor Frankfurt, Martin Benno, and N. L. Reader, defendants, seeking a judgment, jointly and severally, based solely upon actionable fraud. In this petition plaintiff alleged that he was the owner of certain property located at 4032 Centenary Drive, University Park, Texas, hereinafter referred to as the Centenary property, and that on October 20th, 1958 he entered into a contract of sale with Benno, for a total purchase price of $36,000. He alleged that part of the consideration to be applied to the total purchase price, was a certain Vendor’s Lien note payable to Benno, and executed by the defendant, Reader, as maker, in the sum of $12,000, said note being secured by collateral on Lots 5 and 6, Block 2, of the Stillmeadow addition, Dallas, Texas, hereinafter referred to as the Stillmeadow property. Plaintiff alleged that he accepted the $12,000 note upon the representations of the defendants Benno, Reader and Frankfurt, that Reader was solvent; that the property was worth in excess of $20,000; and that the defendant Reader had borrowed the sum of $12,000 on said property from Ben-no and was borrowing the sum of $4,000 from the Republic Bank in Dallas. Plaintiff alleged that such representations were false; that the defendants knew that such representations were not true and that but for said representations he would not have accepted the $12,000 note as part of the consideration for the sale of the Centenary-property.

In his First Amended Original petition, plaintiff Wilson enlarged his cause of action by re-asserting his allegations of fraud and, in addition thereto, for the first time sued upon the $4,000 promissory note which had been executed by Reader as a part of the agreement to discount the $12,000 note in consideration for $4,000 cash borrowed from the Republic National Bank and a $4,000 second lien note, being inferior to the $4,000 note and first lien given by transfer to the Republic National Bank by the defendant Reader in order to pay Wilson the $4,000 in cash. Wilson also pleaded, in the alternative, recovery based upon a certain bond executed by Frankfurt which had been given to secure the release of Lis Pendens notice filed by Wilson on the Centenary property. In this amended petition plaintiff sought judgment, jointly and severally, against all of the defendants, based upon the promissory note and also upon fraud as well as upon the bond.

. Following a non-jury trial the court entered judgment for Wilson against Reader on the $4,000 second lien note, and also judgment against Frankfurt on the note in the amount of $4,000, but allowed no recovery against Frankfurt on the bond. Judgment was rendered that plaintiff should take nothing against the defendant Benno, and no complaint is made here of that action. It had been stipulated and agreed by the defendant Reader that the $4,000 second lien note was past due and unpaid and that Wilson was entitled to a judgment thereon. Reader has not appealed from that portion of the judgment. Frankfurt appealed, contending that, as a matter of law, he is not liable on the note, and that there is no evidence to support the allegations of fraud which would make him responsible on that theory. Wilson, by a cross-point, contends that the court should have held Frankfurt liable on the bond.

By his first and second points of error appellant Frankfurt contends that the trial court erred in its conclusions of law No. 7 to the effect that an agency relationship existed between Reader and Frankfurt, because there is no evidence to support such conclusion, and further that the trial court erred in its conclusions of law No. 7, and in rendering judgment indicated thereon in favor of Wilson against Frankfurt in the amount of $4,000 on the second lien note signed by Reader, because the same is an erroneous conclusion of law. The facts are undisputed in this record that Frankfurt did not sign this note nor did he endorse the same or guarantee payment of the same.

We have carefully reviewed all of the testimony in this case and find no evidence to support appellee’s contention that there was an agency relationship existing between Frankfurt and Reader insofar as the execution of this note is concerned. Even so, there could be no recovery under our law upon a promissory note against an undisclosed principal, said note being executed by the alleged agent. Our Supreme Court in Sanger v. Warren, Tex.Civ.App., 44 S.W. 477 and Burnett v. Atteberry, 105 Tex. 119, 145 S.W. 582 has held that where the agent for an undisclosed principal executes or endorses a negotiable instrument without naming his principal no liability on the instrument is imposed upon the principal. See also Texas Land and Cattle Co. v. Carroll & Iler, 63 Tex. 48; Moody-Seagraves Ranch v. Brown, Tex.Civ.App., 69 S.W.2d 840, err. ref., and Farrier v. Hopkins, Tex.Com.App., 131 Tex. 75, 112 S.W.2d 182.

Appellee, in his brief, frankly admits that the trial court committed error in basing the judgment against Frankfurt on the promissory note. Appellant’s first and second points are, therefore, sustained.

Appellee contends, however, that even though the court committed error in basing his judgment against Frankfurt upon an erroneous theory, yet it is the duty of this Court to affirm the judgment of the trial court if there is any theory upon which the pleadings and evidence will support the judgment against Frankfurt. Purnell v. Gulihur, Tex.Civ.App., 339 S.W.2d 86; Golden State Mutual Life Insurance Co. v. Adams, Tex.Civ.App., 340 S.W.2d 77; Moore v. Ham, Tex.Civ.App., 342 S.W.2d 825. We agree with appellee that this is the law and that, pursuant to Rule 434, Texas Rules of Civil Procedure, the error of the court in rendering judgment against Frankfurt on the note would become harmless if there is any possible theory of recovery against Frankfurt demonstrated by the pleadings and evidence in this case. Appel-lee insists that judgment against Frankfurt is justified upon the theory of conspiracy and fraud practiced upon Wilson by Frankfurt and his alleged agents, Benno and Reader.

We find nothing in this record to substantiate appellee’s contention of conspiracy. Conspiracy has been defined as an agreement, manifesting itself in words and deeds, by which two or more persons confederate to do an unlawful act, or to use unlawful means to do an act that is lawful. 12 Tex.Jur.2d, p. 327, § 1. The evidence in this case wholly fails to support appellee’s contention of a conspiracy, as such.

We turn now to the theory of fraud as a possible basis of recovery against Frankfurt. Appellant by his third through •tenth points of error contends that there is no evidence of probative force in this record to support the trial court’s findings ■of fact and conclusions of law having to do with representations that might amount to fraud. By counterpoint, appellee contends ■that there is evidence that Frankfurt, individually and through his agents Benno and Reader, made certain false representations ■to Wilson which induced him to accept the $12,000 note on the Stillmeadow property, .and also to subordinate and reduce the note to $8,000 in order to obtain an additional $4,000 in cash. The alleged fraud consisted ■ of purported misrepresentations made by Frankfurt and the other two defendants as to (1) the solvency of Reader, (2) the value of certain property referred to as the .Stillmeadow property, (3) the intent of Reader to build a motel on the Stillmeadow property, and (4) the fact that Reader had made arrangements to borrow $4,000 from ■the Republic National Bank on the Still-■meadow property, and upon which Wilson claimed to have relied in accepting a $4,000 second vendor’s lien note secured by a ■deed of trust on the Stillmeadow property, •signed by defendant Reader, as a portion ■of the price paid by Benno to Wilson for -the Centenary property.

The record does not yield to a simple statement. Frankfurt owned the property known as Stillmeadow and by deed dated March 30, 1958, conveyed such property to Benno. Benno delivered to Frankfurt a note, unsecured, in the sum of $8,000. On April 4, 1958 Benno conveyed the Still-meadow property to Reader for a consideration of one vendor’s lien note in the principal sum of $12,000. On October 28, 1958 Wilson and wife entered into a sales contract with Benno wherein Benno agreed to purchase the Centenary property for a consideration of (1) $5,161 cash; (2) the assumption of the unpaid portion of a $20,000 first lien in favor of Metropolitan Savings and Loan Association; and (3) the transfer and assignment of the $12,000 vendor’s lien note on the Stillmeadow property. This contract was negotiated through real estate agents representing both parties. On October 24, 1958 Wilson and wife executed a warranty deed covering the Centenary property to Benno for the consideration recited in the sales contract. On the same date, Reader assigned to Wilson the $12,000 vendor’s lien note covering the Stillmeadow property. Being desirous of obtaining more cash Wilson agreed to reduce the $12,000 note to $8,000 providing he was to receive $4,000 in cash and an additional note for $4,000 which would be inferior to the original $12,000 note and its lien.

In order to obtain the necessary cash Reader borrowed $4,000 from the Republic National Bank and delivered to that bank his note, endorsed by Frankfurt. Wilson, in turn, assigned to Republic National Bank the $12,000 original vendor’s lien note on the Stillmeadow property to secure the first $4,000 of said note. Reader then gave Wilson his note in the sum of $4,000 secured by a deed of trust on the Stillmeadow property, but being inferior to the lien owned by Republic National Bank. On October 28, 1958 Benno conveyed to Frankfurt the Centenary property. The $4,000 note to the Republic National Bank was not paid by Reader when due and Frankfurt paid the same.

With reference to his conversation with Wilson, prior to the sale of the Centenary property to Benno, Frankfurt testified:

“Q All right; I believe you testified in October, 1958, that you were talking to Mr. Jimmie Wilson in reference to his selling his house on Centenary to Mr. Benno, is that correct, sir?
“A I was talking and — when ?
“Q October, 1958; I believe you testified you had talked to Mr. Wilson in reference to his selling the property to Mr. Benno and—
“A No, Jimmie Wilson called me about Mr. Reader and I told him the truth; he paid nothing down and they intended to build a motel out there.
“Q But out there — you mean that Mr. Reader intended to build a motel on the Stillmeadow Acres property; is ■ that correct ?
“A That was the intent, the way I heard it.”

• Concerning further statements with Wilson he testified:

“A He called me previous and called to check up on Mr. Reader and to find out how his credit was, Yes, sir.
“Q And so forth and so on ?
“A He asked me what the value of the property was out there and I said, T don’t know.’
“Q Well, did you tell him — what did you tell him, if anything, about Mr. Reader ?
“A I said, ‘He is a good man.’ I said, ‘Jimmie, if somebody called me about you I would say you are a good man,’ and that is as far as I know. I said, ‘The man don’t have any money; he has to depend on finances if he is going to build a motel; he has to have enough to cover the loan, the buildings plus the land, because he bought it with nothing down.’
“Q But you did tell Mr. Wilson Mr. Reader was going to build a motel on the property?
“A I told him that I thought that was the intent, I can’t tell you what Mr. Reader is going to do.
“Q All right; didn’t you tell him it was a valuable piece of property, in your opinion ?
“A I did.
“Q And well worth the $12,000.00 note?
“A No; I told him that — to find out; to send out an appraiser, that I wasn’t an appraiser and didn’t know the value and didn’t care, because I sold it for $8,000.00 previously.
“Q Uh-huh, Now, did you tell him that when you sold it previously you had sold it to Mr. Benno?
“A I think so.
“Q Had you ever been in any transaction with Mr. Benno previous to this time, Mr. Frankfurt?
“A No, sir.
“Q You had not?
“A None, just a friend.”

Reader testified that he did not tell Mr. Wilson anything concerning the value of the property and denies that he told Wilson he was going to build a motel on the Still-meadow property. He further denied that: he was acting for Frankfurt in making the-deal. Benno testified that he made no representations of any kind to Wilson, and', knew nothing about Reader’s solvency when he transferred the $12,000 note to Wilson. He specifically denied that he made any representations to Wilson or anyone else concerning Reader’s solvency or the value of the Stillmeadow property.

Wilson testified concerning his conversation with Frankfurt, as follows:

“Q Now before you accepted that note, tell me what, if anything, did you do with reference to ascertaining the solvency of Mr. N. L. Reader?
“A Well, I called Mr. Victor Frankfurt, with whom I had had a speaking acquaintance for about twenty years and asked him if he knew Mr. Reader; he said he did. I asked him if he worked for Mr. Reader or if Mr. Reader worked for him and he said ‘No’. He oificed with his son but he was a good man, reliable and dependable.
“Q Yes, sir.
“A That is about the substance of it.
“Q I will ask you whether or not you talked to M-r. Frankfurt about Mr. Reader going to build a motel on the property securing the $12,000.00 note?
“A That was mentioned to Mr. Frankfurt; yes, sir.
“Q Yes, sir.
“A He said he understood Mr. Reader was going to build a hotel out there.
“Q I will ask you whether or not anyone — whether Mr. Reader or Mr. Frankfurt represented to you that this was a good note when you took it ?
“A Well, if you have reference to Mr. Frankfurt, he said the property — ■ it was the Oak Cliff property, I call it.
“Q Yes, sir.
“A Said it was valuable property, the Highway being built through there coming, I believe, from Waxahachie.”

On cross-examination Wilson testified, significantly, as follows:

“Q Did Mr. Frankfurt make any statements to you about his (Reader’s) financial responsibility or how much money he had in the bank or what he was worth or anything of that kind?
“A No; I don’t think so.
“Q All right; he just told you that he was a good man ?
“A Uh-huh.
“Q All right, now, did you ask anyone else about Mr. Reader’s financial responsibility ?
“A Yes, I asked Mrs. Currin.
“Q And I believe she has already testified as to what she told you?
“A Uh-huh.
“Q And was there anyone else that you asked about it?
“A No.
“Q All right; so that all you knew at that time was that — you really didn’t know anything about his financial responsibility; all that you knew was that Mr. Frankfurt told you he thought he was a pretty good man ?
“A That is not why I accepted the deal.
“Q All right; tell us why you did accept itf
“A This property in Oak Cliff, the Stillmeadow Acres property, was represented to me as being valuable property. The Highway being run throtigh there, that that would make it more valuable, and Mr. Reader represented to me that he wotdd borrow $4,000.00 from the Republic Bank on that property, first lien, and I happen to know that a bank doesn’t loan more than fifty per cent on any property. So I figured my loan was secure.” (emphasis supplied).

Kathryn Currin, a real estate agent representing Wilson, testified that she never had a conversation with Frankfurt concerning the deal. She said she did talk to Reader who told her the Oak Cliff or Stillmeadow property was “very valuable property” and that he was fixing to build a motel on the property.

Wilson admitted that, prior to his acceptance of the note in question, and its subordination to the Republic National Bank, that he made no independent effort to ascertain Reader’s solvency nor to seek an independent appraisal of the Stillmeadow property.

In the light of this evidence it is incumbent upon us to determine whether the same, considered in a most favorable light, amounts to any evidence of actionable fraud on the part of Frankfurt. The essential elements of actual fraud based on a false representation are a false statement of a material fact made to be acted upon and actually believed and acted on with consequential injury to .the person acting thereon. “It is said that to state a cause of action for fraud that is based on false representations, the plaintiff is required to show that the defendant made or was connected with the making of the representation; that the representation was as to a material fact; that the representation was false at the time it was made; that the representation was made with the intent to induce the plaintiff to do or refrain from doing some act; that the representation was relied on by the plaintiff — in other words, that the plaintiff believed it to be true and was induced thereby to act or refrain from acting; and that the plaintiff thereby suffered damage or injury.” 25 Tex.Jur.2d § 13, pp. 626-627.

It is a general rule that to be actionable, a false representation must have constituted the affirmation of a fact, as distinguished from the mere expression of an opinion. 25 Tex.Jur.2d § 23, p. 662. In the absence of confidential relationship between the parties, a mere expression of an opinion as to value that proves to be incorrect or false is not, generally, considered a misrepresentation of a material fact on which reliance may be placed. Gainesville Nat. Bank v. Bamberger, 77 Tex. 48, 13 S.W. 959; 25 Tex.Jur.2d § 51, p. 692. For a statement to form a basis for fraud it must be more than a mere expression of an opinion. For example, a statement that the writer of the letter thinks that another person is able to be responsible for goods that the other may order has been said to amount to no more than the expression of an opinion. 25 Tex.Jur.2d § 64, p. 709.

Of course, it is elementary, that to establish the elements of actionable fraud such must be shown by full, clear and satisfactory prooof. Fraud is never presumed, and when it is alleged the facts sustaining it must be clearly shown. Continental Transfer and Storage Co. v. Midcity Realty Company, Tex.Civ.App., 348 S.W.2d 56; Fernandez v. Cano, Tex.Civ.App., 108 S.W.2d 310; Whitsel v. Hoover, Tex.Civ.App., 120 S.W.2d 930. While we are fully cognizant of the rule in cases of fraud that broad latitude is granted in receiving evidence, both direct and circumstantial, that does not change the burden of proof on the part of the plaintiff to establish fraud by a preponderance of the evidence. There is no presumption of fraud. The contrary is true. It is the duty of courts to presume a want of fraud rather than an existence of fraud in a transaction and therefore unless the evidence clearly shows the necessary elements of fraud it is the duty of a court to presume the absence of such fraud. Hawkins v. Campbell, Tex.Civ.App., 226 S.W.2d 891.

With these well-established rules of law in mind we have carefully considered the record in this case and reach the conclusion that the appellee Wilson has wholly failed to establish by evidence of probative force any evidence of actionable fraud against Frankfurt. His admitted statements that Reader was “a good man” or that the Stillmeadow property was “valuable property” amount to nothing more than statement of opinions rather than statement of existing material facts. Moreover, when Wilson inquired of Frankfurt concerning Reader’s solvency and the value of the Stillmeadow property Frankfurt suggested to him that he secure an independent appraiser. Such does not indicate the mind of one set upon a devious scheme or fraud. Even considering Wilson’s testimony in the most favorable light, as opposed to that of Frankfurt and others, the alleged representations of Frankfurt amount to nothing more than expression of opinions or expression of future events based upon hearsay. The value of the Stillmeadow property was as susceptible of being ascertained and determined by Wilson as by Frankfurt. There is no confidential relationship which would give rise to a reliance by Wilson on opinion statements by Frankfurt, and Wilson frankly stated he did not rely solely on same but primarily on statements of Reader concerning the Republic Bank loan.

There must be more than a scintilla of evidence of fraud. The evidence must have some probative value, as a matter of law, in order to raise an issue to be decided by the trier of fact. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

We hold therefore, that there is no evidence of probative value in this record to support appellee’s contention of actionable fraud against appellant Frankfurt. Appellant’s points three through ten are sustained.

We also sustain appellant’s points eleven and twelve to effect that there is no evidence to support the trial court’s conclusion of law concerning agency relationship between Frankfurt, Reader and Benno. While the various transactions are complicated and confused, to say the least, we find no evidence of probative value to support the contention that there was an agency relationship between these parties. Even so, and should we be mistaken in this holding, there is no testimony of fraudulent representations on the part of the alleged agents which would bind Frankfurt. What we have said above concerning statements made by Frankfurt apply equally to any statements alleged to have been made by Reader or Benno.

Appellee, in his counterpoint, contends that the trial court should have rendered judgment against Frankfurt on the theory of the bond executed by Frankfurt given for the release of the Lis Pendens notice covering the Centenary property. The trial court, in its findings of fact, found that Frankfurt did file a bond in order to secure the release of the Lis Pendens notice, such bond being conditioned that Frankfurt would pay the amount of any judgment sought to be enforced by Wilson against Frankfurt, Benno and Reader, in this cause, in the event that final judgment should be entered in favor of Wilson in such suit. However, the trial court specifically refused to make a conclusion of law holding the recovery on this bond. We must overrule appellant’s counterpoint. The record reveals that at the time the Lis Pendens bond in question was executed by Frankfurt the only pleading before the court was the plaintiff’s original petition in which the plaintiff did not allege any cause of action or suit on the promissory note, nor did plaintiff include therein any prayer for judgment or foreclosure on the note. Subsequent to the filing of the Lis Pendens bond the plaintiff’s first amended original petition was filed wherein for the first time, Wilson alleged and undertook to prove a cause of action and recovery on the promissory note in question. This constituted an entirely new proceeding and cause of action. An action on a bond of this kind and character must necessarily be strictly construed in accordance with the terms of the bond itself. It cannot be said that the parties to this bond were obligating themselves to pay a judgment other than a judgment based upon the pleadings at the time the bond was made. It cannot be logically said that Frankfurt, by executing the bond, thereby agreeing to pay a judgment rendered on the pleadings as they then existed, also bound himself to pay a judgment based upon any future pleadings, especially those evidencing a new and different cause of action. It is our opinion that the trial court was correct in not rendering judgment for Wilson against Frankfurt on the bond in question.

From what we have said the judgment of the trial court, in as much as it affects Ben-no and Reader, is affirmed and the judgment of the trial court as to Frankfurt is reversed and here rendered that appellee take nothing against Frankfurt.

Affirmed in part and reversed and rendered in part.


author: WALTER, Justice.

text:
    THORPE INSULATION COMPANY, Appellant, v. Howard Donald RICE, Appellee.
    No. 3677.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 5, 1962.
    Rehearing Denied Feb. 9, 1962.

      John Richardson (The Kempers), Fulbright, Crooker, Freeman, Bates & Jawor-ski, Houston, for appellant.
    Harry P. Jarvis, Jerome J. Pope, Houston, for appellee.
   WALTER, Justice.

Howard Donald Rice filed suit against Thorpe Insulation Company for damages caused by injuries sustained by him while working at the Humble Refinery in Bay-town. He was employed by General Boiler Casing Company. Thorpe also had a crew of men working on the refinery job. The case was submitted on the theory of res ipsa loquitur. Based on the verdict, a judgment was rendered in favor of Rice for $4,000.00.

Thorpe has appealed contending the court erred (1) in denying its motion for an instructed verdict (2) in denying its motion for a judgment notwithstanding the verdict (3) by submitting issues 2, 3 and 4 (4) by rendering judgment for $4,000.00, because it is excessive, and (5) in the admission of evidence.

Rice pleaded specific acts of negligence and in the alternative res ipsa loquitur. He alleged that, as he bent over his tool box, a block of insulation dropped from above by one of Thorpe’s crew hit him on the head. He alleged that as a result of the blow he sustained a severe concussion of the brain and a whiplash injury to the neck.

Thorpe answered by a general denial and pleaded contributory negligence, unavoidable accident and assumed risk. Thorpe also pleaded the things Rice complained about were caused solely by acts of persons over whom it had no control; that if the insulation was dropped by one of its employees, he had departed from his work and was therefore not its employee at such time.

Res ipsa loquitur is a rule of evidence and is applicable if the record shows (1) the injury was the result of an act or omission of the defendant (2) that an instrumentality by which the harm was caused or produced was in the exclusive possession of the defendant, and (3) that the calamity was one which is ordinarily averted by the taking of customary precaution or preventive measures. 30 T.J. Sec. 129, page 803: “It is now well settled, however in this state that in a proper case for the application of the rule the fact of the occurrence warrants an inference of negligence, but does not compel it; that the presumption created by the happening, whether termed a presumption or an inference, is rebuttable. The effect of the application is not to shift the burden of proof to the defendant, but only the burden of going forward with the evidence. It is stated in 45 C.J. p. 1219, that the general rule as affecting burden of proof is that where plaintiff has established a presumptive or prima facie case of negligence, by virtue of the doctrine of res ipsa loquitur, it is incumbent upon defendant, if he wishes to avoid the effect of the doctrine, to introduce evidence to explain, rebut, or otherwise overcome the presumption or inference that the injury complained of was due to negligence. The rule thus stated is firmly established in this state.” Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659 at page 664.

Rice’s testimony revealed the following: He was working on scaffolds about 35 feet above ground on a large structure at the refinery. While he was bent over reaching in his tool box, he was struck on the back of his head and neck by a block of insulation 2 inches thick, 12 inches wide and 24 inches long. It was unusual for such an object to fall on such a job, and that he knew the object came from above. On cross-examination he was asked, “There were a number of other crews, a number of other men, besides men wearing the badge of Thorpe Insulation Company, working above you, too, were there not?” He answered: “No Sir.” Rice and his fellow employees wore safety hats painted yellow and badges with yellow background. Thorpe’s employees wore blue hats and blue badges. The insulation men were working directly above Rice. He observed a truck at the job which was hauling the insulation material with Thorpe’s name on one of the doors.

It was stipulated that Thorpe had the contract for the insulation work on the structure in question and had fourteen employees working in the Baytown Humble Refinery area.

After regaining his senses, Rice went up to see who dropped the insulation, “but he couldn’t get no one to own up to who dropped it.” When asked, “was there anybody above you up there where you went up but what was wearing a blue hat and badge?” “No Sir,” I say, “No Sir.” “There wasn’t no one working on that vessel besides the ones with the blue hat on the exterior where we were working.”

Thorpe offered no' evidence.

Our Supreme Court in Barker v. Coastal Builders, 153 Tex. 540, 271 S.W.2d 798, speaking through Justice Griffin, said: “In considering the evidence to determine whether there is evidence to support the jury’s answer to Special Issue No. one, we must consider that evidence most favorable to the Barkers, as they were the party prevailing in the trial court.”

We hold the record contains some evidence of probative value on the essential elements necessary to invoke res ipsa loqui-tur.

Rice testified that he went to see Dr. Matson at Parkview Clinic the day after his accident. He was off work two or three days, went back to work for two days and had to quit because, “too much pain for me to go on working, to much aggravation.” He went to Dr. Matson for about two weeks and then went to Dr. J. L. Walker who examined and treated him. He was examined and treated by Walker on five occasions. He was given light treatment and his neck was placed in traction. He was also examined by Dr. Thorning. At the time of trial, about three years after the accident, Rice testified he felt better but was still having trouble with dizziness and pain in the base of his skull. He was also having trouble with his neck and numbness in his arms which slowed him down when he worked. Based on Rice’s testimony we find the verdict is not excessive.

On pages 72, 73, 74 and 75 of the statement of facts, we find Dr. Thorning’s testimony on cross-examination by appellant’s counsel. The only pages of the statement of facts referred to by appellant in his brief under points 19 and 20 are the ones listed above. The testimony complained of is not set out in appellant’s brief with reference to the pages of the record where the same may be found. We hold appellant failed to comply with Rule 418 Texas Rules of Civil Procedure.

We have, nevertheless, considered appellant’s objection to the hypothetical question propounded to Dr. Thorning. We find the testimony of Rice was sufficient to support the supposed facts in his counsel’s hypothetical question to Dr. Thorning. “Counsel propounding the question is entitled to the witness’ opinion upon any combination of facts inferable from the proof.” McCormick and Ray-Texas Law of Evidence, Sec. 1403, page 240.

In answer to hypothetical question, Dr. Thorning testified there was a probability Rice had sustained nerve root pressure in his neck and that in his opinion such condition was probably permanent.

Appellant’s point that there was no evidence to support the submission of the damage issue is without merit. In answering the damage issue, the jury was instructed they could take into consideration Rice’s physical and mental suffering from date of injury to date of trial; such suffering which they believed he would in reasonable probability suffer in the future and such sums of money as Rice may have lost as a result of loss of time from his work from •date of injury to date of trial.

Although its point of error asserts there is no evidence to support the submission •of the damage issue, appellant only complains about one element, namely, future •physical and mental suffering. The evidence was sufficient to warrant a finding •of $4,000.00 damages without consideration of future pain and suffering.

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

The judgment is affirmed.


text:
    The CITY OF HOUSTON et al., Appellants, v. W. S. ADAMS et al., Appellees.
    No. 3668.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 19, 1962.
    Rehearing Denied Feb. 16, 1962.
    R. H. Burks, City Atty., Homer T. Bouldin, Asst. City Atty., Houston, for appellants.
    Bradshaw & Bradshaw, Houston, for appellees.
   WALTER, Justice.

W. S. Adams, R. B. Bergman and O. C. Mayfield, on behalf of themselves and all persons within the City of Houston similarly situated as a class, filed suit against the City of Houston, its City Attorney, Health Department and the Judge of the Corpora-' tion Court for a permanent injunction enjoining them from enforcing a Penal Ordinance making it unlawful to keep chickens in the city under certain conditions.

The court granted a temporary injunction which was affirmed in City of Houston et al. v. Adams et al., Tex.Civ.App., 326 S.W.2d 627 (Writ Ref.N.R.E.), wherein the court said: “It is apparent, that neither the Trial Court nor the Court of Criminal Appeals passed upon the constitutionality of the ordinance, and this court expressly disclaims any intention of doing so.” The City of Houston filed an application for Writ of Prohibition in the Court of Criminal Appeals in an effort to have the court prohibit the trial judge from enforcing the temporary injunction. The Writ of Prohibition was denied in State v. Thomas J. Stovall, District Judge, 168 Tex.Cr.R. 207, 324 S.W.2d 874, wherein the court said: “We do not pass upon the constitutionality of the ordinance.”

The ordinance made it unlawful for any person to keep chickens and other fowls within one hundred feet of a residence, church, school or hospital within the city limits.

The jury found that the keeping of fowls within one hundred feet of a residence, church, school or hospital was not substantially related to the public health, safety, welfare or comfort in the city. The court held the ordinance was arbitrary, unreasonable, capricious, unconstitutional and void.

The city has appealed from such judgment.

It will be noted that the ordinance does not make it unlawful to keep fowls in the city limits unless they are kept within one hundred feet of the residence of another, or a hospital, school or church. Stricter police regulations are essential to the welfare and safety of a crowded metropolis than are required in sparsely settled portions of the country.

“The action of the governing body of a city in passing an ordinance is final and conclusive, and cannot be revised by the courts, unless it is clearly made to appear that their action was arbitrary, unreasonable, and a clear abuse of power.” Town of Ascarate v. Juan Villalobos, 148 Tex. 254, 223 S.W.2d 945. “The burden of showing that the ordinance is unnecessary, unreasonable and arbitrary is upon the respondent and unless that showing is clearly made, the action of the City Council is conclusive and cannot be revised by the courts.” City of San Antonio v. Pigeonhole Parking of Texas, Incorporated, 158 Tex. 318, at page 326, 311 S.W.2d 218, 73 A.L.R.2d 640.

“The courts cannot interfere unless, it appears that the ordinance represents a. clear abuse of municipal discretion. And the ‘extraordinary burden’ rests on one attacking the ordinance ‘to show that no conclusive, or even controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to-exercise the discretion confided to it’ ”. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477. “If reasonable minds, may differ as to whether or not a particular zoning restriction has a substantial relationship to the public health, safety, morals. or general welfare, no clear abuse of discretion is shown and the restriction must stand as a valid exercise of the city’s police • power. City of Corpus Christi v. Jones,. Tex.Civ.App., 144 S.W.2d 388, error dism.,. correct judgt. Otherwise expressed by the ■ court in the case just cited, if the issue of validity is fairly debatable courts will • not interfere.” City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477.

■ The health department of the City of Houston in 1952 received 125 complaints about chickens and other fowls, in 1953— 786 complaints, in 1954 — 481 complaints, in 1955 — 216 complaints, in 1956 — 382 complaints, in 1957 — 455 complaints, in 1958— 599 complaints, in 1959 — 700 complaints and in 1960 — 492 complaints.

Dr. W. H. Hambrick is a former President of the Harris County Medical Association, an organization of approximately 1480 doctors. He is also Director of Public Health of the City of Houston. He testified about the diseases of the fowls mentioned in the ordinance. The doctor testified that he was acquainted with the city ordinance regulating fowls, and in his opinion, it would be of value to the neighbors of people who keep fowls. Other medical witnesses testified chickens and other fowls mentioned in the ordinance sometimes have diseases which may be transmitted to people. A medical witness for the appellees also testified that said fowls have diseases which may be transmitted to people.

In Ex parte Naylor, 157 Tex.Cr.R. 355, 249 S.W.2d 607, the Court of Criminal Appeals held a Corpus Christi Penal Ordinance constitutional which made it unlawful for any person to keep chickens and other fowls within the corporate limits of the City of Corpus Christi. In the case of City of Corsicana v. Wilson, Tex.Civ.App., 249 S.W.2d 290 (Error Ref.N.R.E.) the Waco Court of Civil Appeals upheld the validity of a Penal Ordinance which prohibited keeping livestock within a specified zone. The Court of Criminal Appeals in Ex parte Naylor said, “The Supreme Court of the United States as early as 1904, in Fischer v. City of St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48 L.Ed. 1018, in writing upon the validity of a city ordinance prohibiting the keeping of cattle within prescribed limits, made the following statement of law: ‘The power of the legislature to authorize its municipalities to regulate and suppress all such places or occupations as, in its judgment, are likely to be injurious to the health of its inhabitants, or to disturb people living in the immediate neighborhood by loud noises or offensive odors, is so clearly within the police power as to be no longer open to question’ ”.

From the authorities cited and from the record, we are forced to hold that the appellees failed to discharge their burden of proving that said ordinance was arbitrary, unreasonable and capricious. The judgment of the trial court is therefore reversed and rendered for the appellants.

Judgment reversed and rendered.


author: STEPHENSON, Justice.

text:
    Virgie K. LEWIS et al., Appellants, v. J. H. ROSE, Jr., Appellee.
    No. 6522.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 11, 1962.
    Rehearing Denied Feb. 7, 1962.
    R. E. Biggs, Liberty, for appellants.
    Thos. J. Hightower, Liberty, for appel-lee.
   STEPHENSON, Justice.

Appellant brought this suit to have a road judicially declared a public road by prescription. Pending a hearing on the merits, appellants sought to have the trial court restrain the appellee from denying appellants free use of this road. This is an appeal from an order of the trial court denying appellants’ application for a temporary injunction.

The rules governing the type of review by an appellate court in this situation are very clearly set forth by the Supreme Court in Texas Foundries, Inc. v. International Moulders and Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460, as follows:

“The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion.” (Citing cases) —The Court of Civil Appeals, 241 S.W.2d 213, amended the order of the trial court and the Supreme Court had this to say: “It (CCA) fell into the error of substituting its judgment for that of the trial judge. Such a substitution does not accord with the approved method of review of a temporary injunction. The appellate court cannot substitute its discretion for that of the trial court. (It has no independent discretion for that of the trial court). It has no independent discretion in reviewing such an order; its sole function is to determine whether there has been a clear abuse of discretion by the trial judge.”

Twenty-two witnesses testified on behalf of appellants, and six witnesses for appellee. This Court has carefully read the 448 pages of testimony, and finds a sharp conflict as to the number of roads crossing the land in question, and as to whether the particular road in issue has been situated at its present location throughout the prescriptive period. The evidence also raised an issue as to whether portions of the road in question were used with permission of the owner. In fact, appellants contend in the first point in their brief that the evidence raised an issue of fact as to whether the road in question had become a public .road by prescription. The trial court resolved the conflict in the testimony and the issues of fact in favor of appellee. There is testimony sustaining the judgment of the trial court. The precise question was presented in the case of Renfro v. Sperry et al., Tex.Civ.App., 134 S.W.2d 438, in which case it is written:

“This being an appeal from an order of the trial court denying a temporary injunction, the sole question before us is whether on the record as a whole the trial court abused his discretion in refusing the temporary writ. We cannot consider any matters which do not relate to the propriety of the order appealed from. 3 Tex. Jur., Appeal and Error, § 723, page 1019, and authorities cited. Such being the case, we shall not summarize the evidence or discuss any issues going to the merits of the suit further than necessary to a review of the action of the trial court in entering the order appealed from.

“On the record before us, appellant did not conclusively establish either of the three theories which he relied upon. At most he but raised the issues, leaving it to the sound discretion of the trial court to decide them in so far as necessary in determining whether or not the temporary writ should issue as prayed for. The trial court having refused the writ pending final hearing, we would not be warranted in holding such action an abuse of discretion.”

The judgment is affirmed.


author: COLEMAN, Justice.

text:
    BROWN OIL TOOLS, INC., Appellant, v. Dallas W. BROUGHTON, Appellee.
    No. 13893.
    Court of Civil Appeals of Texas. Houston.
    Jan. 25, 1962.
    Rehearing Denied Feb. 15, 1962.
    Vinson, Elkins, Weems & Searls, Thomas B. Weatherly, Houston, Gaius G. Gan-non, Jr., Houston, of counsel, for appellant.
    Lee & Forbes, Thomas H. Lee, Arthur L. Forbes, Houston, for appellee.
   COLEMAN, Justice.

Dallas W. Broughton, plaintiff in the trial court, sued Brown Oil Tools, Inc., for a commission of ten per cent on the purchase price of a lathe. After a jury trial, judgment was rendered for plaintiff against defendant, Brown Oil Tools, Inc., and this appeal followed.

Appellant’s principal complaint is that there was no evidence, or insufficient evidence, to require the submission of the special issue relative to procuring cause to the jury, and that the answer of the jury to that issue is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust.

Appellee pled that he was in the business of “brokering” machinery and that defendants contacted him to assist them with the location and purchase of machinery. He alleged that there was an express and implied agreement between the parties that he would receive as his commission ten per cent of the amount of the purchase price of any such lathe that he should locate for defendant and defendant should subsequently purchase.

Defendant filed a general denial and a special denial that plaintiff was the procuring cause of any sale of machinery “as outlined in plaintiff’s petition.”

It is undisputed that Broughton directed C. C. Brown, President of appellant company, to the premises of the Lawrence Machine Company to look at a lathe which Broughton thought Brown might buy. After inspecting the lathe Brown offered $15,-000.00 for it. This offer was refused. Brown told Lawrence that if he changed his mind to give him a ring. Broughton considered the deal dead and made no further effort to bring the parties together.

About two months later the Lawrence Machine Company wrote Brown Oil Tools, Inc. offering to sell the lathe for $15,000.00 if Brown would also buy some gauges for $1,962.00. This offer was accepted, and the sale was concluded without the knowledge of Broughton, who instituted this suit as soon as he learned of the purchase.

The jury found that Brown agreed to pay a 10% commission to Broughton on the lathe purchased from the Lawrence Machine Co. Appellee did not allege, and the proof negatives, a contract to purchase machinery on behalf of appellant. The contract was that appellant would pay a commission to appellee if appellee found machinery appellant needed and appellant was able to buy it on terms satisfactory to himself.

There was no pleading or evidence that plaintiff was requested to do more than he did to assist in the purchase. We do not consider the cases dealing with ordinary sales contracts between owners of property and brokers to be decisive of the question with which we are confronted here. In such cases the contract is to sell and, to recover, the broker must show that he was a procuring cause of the sale. Here the obligation of the broker is to find suitable machinery. His right to compensation depends on the consummation of a sale, but he has no duty or authority to purchase on behalf of his client. We do not consider that plaintiff had the burden to secure a finding that he was a procuring cause of the purchase. 8 Amer.Jur., Brokers, § 167, p. 1083; McNabb v. Woolfolk, 240 S.W. 1043 (Tex.Civ.App., writ dism., w. o. j.) Diebold Safe & Lock Co. v. Shelton, 192 S.W. 340 (Tex.Civ.App.); Culp v. Browne,. 235 S.W. 675 (Tex.Civ.App.).

Appellant attaches great importance to the following testimony of appellee:

“Q. Now between the time you left Chickasha and the time later on when you were in Brown’s shop in Houston and saw this machine, or saw that Mr. Brown had bought the machine, you had no dealings at all regarding that machine with either Lawrence or Brown, did you?
“A. None at all.
“Q. When you all left the Chicka-sha shop that afternoon, the deal, as far as you were concerned, it was off?
“A. I figured it was just as dead as if it was ready to be buried.
“Q. And you gave no more thought to it after that?
“A. I never did until I saw it and Mr. Brown bought it and of course, naturally that revived my interest in it.”

It is his contention that this established as a matter of law that appellee was not the procuring cause of the sale. We do not agree. Appellee brought the parties together and as a result of this meeting and the brief negotiations, Lawrence made a counter offer which was accepted. The evidence amply supports the jury finding that appellee was the procuring cause of the purchase. Shepard v. Wesson, 266 S.W.2d 393 (Tex.Civ.App.); Keener v. Cleveland, 250 S.W. 151 (Com.App., Tex.).

Appellant also contends that the testimony quoted above establishes without dispute that appellee abandoned the contract. Appellant did not affirmatively plead the abandonment of the contract as a defense in his answer. The defensive issue of abandonment was not raised in appellant’s motion for new trial, and, while appellant raised the point in oral argument, no point raising abandonment as a defense is presented in his brief in this Court. Error, if any, in this respect has been waived by appellant’s failure to properly preserve it and to properly present the point in this ■Court. Rule 374, Texas Rules of Civil Procedure.

The trial court awarded appellee 'the sum of $750.00 as a reasonable attorney's fee for prosecuting this suit. There was expert testimony that such a sum was •a reasonable fee for the services rendered. There was no testimony to the contrary. No issue was submitted to the jury for their determination of what would be a reasonable fee. Appellant complains of this action of the trial court. In Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155, the Supreme Court of Texas held:

“The general rule is that it is the province of the jury to determine what is the reasonable value of an attorney’s services, and that the jury may take into consideration the facts before them in relation to the services rendered, as well as the estimates of their value made by attorneys who testified. Hamman v. Willis, 62 Tex. 507; Dockery v. Johnston, Tex.Civ.App., 299 S.W. 505; Lile v. Sovereign Camp, W. O. W., Tex.Civ.App., 100 S.W.2d 1033; 5 Am. Jur., Attorneys at Law, Sec. 192, pp. 377, 378.
* * * * * *
“There may be cases in which the expert testimony as to the value of an attorney’s services is so free from inconsistencies, so thoroughly supported by undisputed facts in evidence, and so clearly in accord with knowledge and experience which the jury must have had and with the information obtained by them on the trial, that the court would be justified in accepting that testimony as conclusive, * *

We think this is such a case and, accordingly, hold that the action of the trial court complained of was not error.

Appellee has presented a cross-point that the judgment of the trial court was erroneous and should be reformed so as to allow recovery of interest from the date of the accrual of the cause of action to the date of judgment. Appellee’s pleading contained a prayer for interest and he requested that interest be allowed in his motion for judgment. However, appellee filed no motion for new trial pointing out the omission of interest as damages in the judgment, and failed to preserve the error, if any, by excepting to the judgment entered. Rule 373, T.R.C.P., provides:

“Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.”

While it does not appear that appellee made known to the court his objections to the judgment and grounds therefor, he did make known to the court the action he desired the court to take.

Rule 324 T.R.C.P., provides:

“In all cases tried in the county or district court, where parties desire to appeal from a judgment of the trial court, a motion for new trial shall be filed as a prerequisite to appeal; * * *. A motion for new trial shall not be necessary in behalf of appellee where he does not complain of the judgment or a part thereof.”

Since appellee is complaining of a part of the judgment, he was required to file a motion for new trial. In West Texas Utilities Company v. Irvin, 161 Tex. 5, 336 S.W.2d 609, the Supreme Court of Texas reversed the action of the Court of Civil Appeals in reforming the trial court’s judgment so as to allow additional interest, saying:

“We have concluded that the respondents’ cross assignments of error cannot be considered in this cause because the respondents never made any complaint in the trial court as to the judgment entered. The trial court, in as case such as we have before us, must be apprised of any complaint or objection the successful party has to the judgment.”

The cross-point must be denied. Plasky v. Gulf Insurance Company, 160 Tex. 612, 335 S.W.2d 581.

The judgment of the trial court is af-' firmed.


author: FANNING, Justice.

text:
    Knox GARVIN, Trustee, et al., Appellants, v. J. N. HUDSON et al., Appellees.
    No. 7379.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 23, 1962.
    Rehearing Denied Feb. 13, 1962.
    L. F. Burke, Longview for appellants.
    Roberts & Smith, Smead & Harbour, Longview, for appellees.
   FANNING, Justice.

The primary matter involved on this appeal is the construction of a deed from appellants, Knox Garvin, individually and as trustee, Afton Thrash, and Harley Mul-linax, and appellee J. N. Hudson to T. A. Young, with respect to whether the title or beneficial interests in certain tracts were conveyed by said deed to Young.

On or about August 3rd, 1959, Knox Garvin, individually and as trustee for Afton Thrash, Harley Mullinax and.J. N. Hudson, as sellers, and T. A. Young, as buyer, entered into a written contract under the terms of which the sellers agreed to sell and the buyer agreed to purchase two tracts of land in Gregg County, Texas, the first tract containing approximately 105.6 acres, more or less, and the second tract containing approximately 6 acres, more or less. The contract, among other provisions, also specifically provided as follows:

“PROVIDED, HOWEVER, this sale is made subject to former conveyances and leases to Safeway Stores, Inc., Leland Equipment Company, Gulf Oil Compamy, Hudson Oil Company, Southwestern Gas and Electric Company and Greggton Water Company.”

The contract also provides: “Seller shall reserve unto himself in said deed all of the oil, gas and other minerals now owned by him under the above described land with the exception of all land that fronts on U. S. Highway #80 extending back a distance of 300 feet.”

On August 14th, 1959, the above referred to written contract was consummated by a deed from said above named sellers in the contract to the buyer Young. The deed in question is in the form of a general warranty deed. After conveying the first tract (the 105.6 acres, more or less) the following recitation immediately follows:

“SUBJECT TO THE FOLLOWING CONVEYANCES HERETOFORE MADE:
“A. 2.06 acres of land, described in Lease Agreement with M. E. Smith, dated November 23, 1953, filed December 2, 1953, recorded in Vol. 422, Page 60 of the Deed Records of Gregg County, Texas, and bearing File No. 12128;
“B. 1.341 acre of land, described in Warranty Deed to W. R. Borgman, dated November 30, 1953, filed December 4, 1953, recorded in Vol. 422, Page 119 of the Deed Records of Gregg County, Texas, and bearing File No. 12197;
“C. a. 2.96 acres of land, described in Warranty Deed to Safeway Store, Incorporated of Baltimore, Maryland, dated November 15, 1954, filed November 23, 1954, recorded in Volume 445, Page 222 of the Deed Records of Gregg County, Texas, and bearing File No. 10720.
“b. 15 foot wide permanent easement, described in Warranty Deed above described in ‘C.a.’.
“D. A certain tract of land described in Contract and Agreement with Hudson Oil of Nebraska, Inc., dated April 14, 1955, filed April 25, 1955, recorded in Vol. 455, Page 155 of the Deed Records of Gregg County, Texas, and bearing File No. 3396;
“E. Two tracts of land described in Warranty Deed to Gulf Oil Corporation, dated May 27, 1958, filed June 3, 1958, recorded in Vol. 523, Page 454 of the Deed Records of Gregg County, Texas, and bearing File No. 4932; and
“F. A tract of land described in General Warranty Deed to Tremarco Corporation, dated May 27, 1958, filed June 3, 1958, recorded in Vol. 523, Page 457 of the Deed Records of Gregg County, Texas, and bearing File No. 4933.”

Next follows a description of the second tract (the 6 acres, more or less). Following the description of the second tract there is contained the following language:

“Grantors reserve unto themselves all of the oil, gas and other minerals in, on and under the two above described tracts of land SAVE AND EXCEPT the following.” (Here follows description of a 1.57 acre tract and a 8.29 acre tract which appears to be in approximate conformity with the land referred to in the contract as that fronting on U. S. Highway 80 and extending back a distance of 300 feet.)

Following the description of the two tracts above referred to fronting on U. S. Highway 80, there next appears the following language:

“All of the oil, gas and other minerals held by the Grantors herein SAVE AND EXCEPT the last two above described tracts shall he held by Afton Thrash, Harley Mullinax, Knox Garvin and J. N. Hudson in the proportion of an undivided ⅛ each.
“All of the above described lands are under oil and gas leases and this conveyance is made subject to said leases.”

On or about Aug. 21, 1959, T. A. Young conveyed by warranty deed to Mary H. Spooner and J. N. Hudson the same tracts of land described in the deed from Knox Garvin et al. to Young.

On or about February 19, 1960, J. N. Hudson, Mary H. Spooner, individually and Mary H. Spooner as agent and attorney-in-fact for William G. Spooner, for the consideration of $16,500.00 conveyed to Hudson Oil Company of Nebraska, Inc., the approximately 7.42 acre tract which is the same land as referred to in “D” under the clause in the Garvin et al. deed to Young styled “SUBJECT TO THE FOLLOWING CONVEYANCES HERETOFORE MADE.” By instrument dated April 14, 1955, said Hudson Oil Company had a 5 year lease on this tract with option to purchase for $16,500.00, with the proviso that all of the oil, gas and other minerals were to be reserved for the benefit of the lessors.

Appellants present 6 points on appeal wherein they contend in essence that the deed in question from Garvin et al. to Young did not convey title to the six tracts specifically identified as “A to F” inclusive, under the heading “SUBJECT TO THE FOLLOWING CONVEYANCES HERETOFORE MADE:”, and wherein appellants complain of the trial court rendering judgment against them, the action of the trial court in not sustaining and overruling their motions for instructed verdict, for judgment non obstante verdicto, for declaratory judgment, and for new trial, and complaining of the action of the trial court, in sustaining and in not overruling the motion for instructed verdict of Hudson Oil Company of Nebraska, Inc. Appellants also contend that they were entitled to $12,375.00, being ¾ of the $16,500.00 consideration paid by Hudson Oil Company for the tract purchased by said company above referred to.

The mineral reservations in the Garvin et al. to Young deed are clear and valid reservations and are not in controversy on this appeal.

The principal controversy between the parties concerns tract “D” which was under lease to Hudson Oil Company with option to purchase.

A general warranty deed passes whatever interest a grantor has in the land described therein in the absence of language showing an intention to grant a lesser estate, and neither a reservation nor an exception exists in the absence of a manifest intent expressed in the instrument allegedly creating the same. Sharp v. Fowler, 151 Tex. 490, 252 S.W.2d 153.

It is clearly obvious that the purpose of the listing of tracts A to F inclusive, which were a part of the 105.6 acre tract (more or less) under the “Subject to, -etc.” clause above quoted, was for the purpose of protecting grantors on their warranty, and same was not a reservation of any remaining beneficial interest that grantors had therein.

We hold that the phrase “SUBJECT TO THE FOLLOWING CONVEYANCES HERETOFORE MADE:” did not reserve unto the grantors any title to or beneficial interest in tracts A to F, inclusive, above referred to, and that by the general warranty deed in question here the grantors divested themselves of any title or beneficial interest they may have owned in said tracts A to F inclusive, and passed such title as they had therein to T. A. Young, save and except the mineral rights later reserved in the deed, which mineral rights are not in controversy on this appeal. See the following authorities: Bibb v. Nolan, Tex.Civ. App., 6 S.W.2d 156, error refused; Texas Creosoting Co. v. Hartburg Lumber Co., Tex.Com.App., 12 S.W.2d 169; Freis v. Schuette, Tex.Civ.App., 222 S.W.2d 1006, error refused; Kokernot v. Caldwell, Tex.Civ.App., 231 S.W.2d 528, error refused; Robinson v. Jacobs, 113 Tex. 231, 254 S.W. 309.

We further hold that the trial court correctly sustained the motion for instructed verdict of appellee, Hudson Oil Company of Nebraska, Inc.

Appellants’ points are overruled. The judgment of the trial court is affirmed.

Affirmed.