author: RICHARDS, Justice.

text:
    Ray COWAN, Appellant, v. STATE of Texas, Appellee.
    No. 10,969.
    Court of Civil Appeals of Texas. Austin.
    March 21, 1962.
    Rehearing Denied April 11, 1962.

      Jake Jacobsen, Austin, for appellant.
    Will Wilson, Atty. Gen., Gordon C. Cass, Vernon O. Teofan, Houghton Brownlee, Jr., Asst. Attys. Gen., Austin, William S. Lott and J. R. Owen, Georgetown, for appellee.
   RICHARDS, Justice.

Suit was brought by the State of Texas, appellee in the District Court of Williamson County, Texas, against Ray Cowan and others, all of whom reside in counties other than Williamson, for the recovery of penalties and injunctive relief under the Texas Anti-Trust Statutes (Arts. 7426-7447, Vernon’s Ann.Civil Statutes). On September 11, 1961 defendant Ray Cowan, appellant, filed his plea of privilege under the provisions of Art. 1995, Vernon’s Civil Statutes, to be sued in Travis County, the county of his residence, which plea of privilege was in proper form and duly served on appellee on September 12, 1961 as provided in Rule 86, Texas Rules of Civil Procedure. On September 25, 1961 appellee filed a pleading in two parts, the first part being designated as a “Motion to Quash” and the second part as a “Controverting Affidavit.” On October 27, 1961 appellant filed his motion to strike the controverting plea for the reason that it was not filed within the ten day period required by Rule 86.

At the hearing on the plea of privilege appellant urged his motion to strike but the Trial Court decided to hear the motions urged by both parties prior to entering his rulings thereon, stating that there would be no waiver of the respective positions of the parties if they would proceed with the arguments.

During the hearing on appellee’s motion to quash appellant’s plea of privilege, appel-lee offered in evidence its petition in the main suit which was objected to by appellant for the reason that appellee having failed to timely file his controverting plea the Trial Court could not consider appel-lee’s petition as evidence of any venue fact.

At the conclusion of the argument the Trial Court sustained appellee’s motion to quash the plea of privilege, overruled appellant’s motion to strike the controverting affidavit and overruled his plea of privilege, from which ruling appellant has perfected this appeal.

Appellant assigns as error the actions of the Trial Court (1) in failing to sustain his plea of privilege which was regular on its face because no controverting plea was timely filed; (2) in overruling his motion to strike the controverting plea of the State since good cause for its late filing was not shown, and (3) in sustaining appellee’s motion to quash the plea of privilege thereby holding that a demurrer or other similar pleading is sufficient against a plea of privilege although not timely filed.

In the pleading filed by appellee, the part designated as the “Motion to Quash” states under oath that “it is a fact that said suit” is of a civil nature brought under Title 126, Arts. 7426-7447, V.C.S. and that Art. 7436, V.C.S. places venue in Williamson County. The part entitled the “Controverting Affidavit” in addition to setting out the grounds relied upon to maintain venue in Williamson County previously alleged in the “Motion to Quash” denies under oath the allegation in the plea of privilege that there is no exception to exclusive venue in the county of appellant’s residence. Each of the designated instruments referred to and adopted appellee’s petition and the allegations contained therein, which allegations were verified under oath as being true and correct.

Appellant concedes that each of the instruments come within the definition of the controverting plea referred to in Rule 86 as being a plea under oath setting out specifically the grounds relied upon to confer venue, which must be filed within ten days. It is well settled that if a plaintiff desires to file a controverting plea containing a demurrer to or a motion to quash a plea of privilege in addition to the other matters required in the controverting plea under Rule 86, such pleadings may he included as part of the controverting plea hut must be filed within the time permitted by the rule.

From the beginning of the jurisprudence of this State, the law has given to a litigant defendant the right to be sued in the county in which he is domiciled subject to certain exceptions. This policy is stated in Pool v. Pickett, 8 Tex. 122, as follows:

“The cherished policy of the law is that the inhabitants of the State shall be sued in the counties in which they respectively have their domiciles. This is the general rule, modified by certain exceptions specifically designated by the statute. This was the rule under the former or Spanish system of jurisprudence, and it has always been regarded as just in itself and eminently advantageous to defendants, for whose benefit it was intended.
“This rule cannot be defeated by any evasions or artifices intended merely for that purpose. The defendant cannot be dragged from the forum of his own domicile by any mere contrivance to evade the domestic jurisdiction.”

which right appellant asserted by filing his plea of privilege to be sued in Travis County, the county of his residence, as required by Rule 86.

But Rule 86 also provides that after a plea of privilege has been filed:

“If such adverse party desires to controvert the plea of privilege, he shall within ten days after he or his attorney of record received the copy of the plea of privilege file a controverting plea under oath setting out specifically the grounds relied upon to confer venue of such cause on the court where the -cause is pending.”

When appellant filed his plea of privilege to be sued in Travis County, if appellee desired to controvert it it was necessary under Rule 86 to file a controverting plea specifically alleging facts to establish venue in Williamson County. Rule 86 contemplates that the controverting plea constitutes the plaintiff’s pleadings on the issue of venue and places the burden upon him to plead therein the facts which will sustain venue in the county where the suit is filed. Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391, 393; A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 622.

Appellee’s controverting affidavit was not timely filed within the ten day period, in which case by a showing of good cause for failure to file the plea within the time required, the Trial Court within its discretion could have permitted the late filing and considered the plea of privilege and controverting affidavit on their merits. Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978, 981. Here, however, appellee’s counsel did not attempt to show good cause or request the Trial Court for permission to file its controverting affidavit for good cause under the provisions of Rule 5, T.R.C.P., and there was no waiver by appellant of the late filing of the controverting affidavit.

On the contrary, appellant filed his motion to strike the instrument designated as a “Motion to Quash” and “Controverting Affidavit.” The Trial Court, however, contrary to the provisions of Rule 86 and Rule 5, permitted the filing of the so-called controverting affidavit, overruled appellant’s motion to strike it, sustained the motion to quash and overruled the plea of privilege.

It is fundamental that when a plea of privilege has been filed and no controverting affidavit is filed within the time required by law and the time for such filing is not extended under Rule 5, the Trial Court is without jurisdiction to enter any order other than an order transferring the cause to the proper court. Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154, 155; Beard Drilling Co., Inc. v. Wilson, Tex.Civ.App., 348 S.W.2d 252, 254, error dism.; Southern Insurance Co. v. Rogers, Tex.Civ.App., 342 S.W.2d 135, no writ history; Durrett v. Arctic Air, Inc., Tex.Civ.App., 319 S.W. 2d 937, no writ history.

In its motion to quash appellee relies upon the provisions of Art. 7436, V.C.S., to maintain venue in Williamson County contending that (1) no plea of privilege is available to appellant since the phraseology of Art. 7436 precludes any transfer of a suit except upon change of venue allowed by the Court and (2) in the alternative, if a plea of privilege can be filed, it is subject to attack by the motion to quash even though such motion was not filed in the time provided by Rule 86, citing Yates v. State, Tex. Civ.App., 3 S.W.2d 114, no writ history, in support of its alternative contention.

Art. 7436 is, in part, as follows:

“Each firm, person, corporation or association of persons, who shall in any manner violate any provision of this subdivision shall, for each day that such violation shall be committed or continued, forfeit and pay a sum of not less than fifty nor more than fifteen hundred dollars, which may be recovered in the name of the State of Texas in the district court of any county in the State of Texas, and venue is hereby given to such district courts. When any such suit shall have been filed in any county and jurisdiction thereof acquired, it shall not be transferred to any other county except upon change of venue allowed by the court.” (Italics supplied.)

Appellant on the contrary contends that Art. 7436 is a law authorizing or regulating a particular character of action (the Texas Anti-Trust Law) and comes within the class of actions specified in Exception 30, Art. 1995 and hence is subject only to attack as a plea of privilege case in the manner provided by Rules 86, 87, 89 and 385, T.R.C.P. (formerly Arts. 2007, 2008, 2019 and 2020, V.C.S.) and not by a motion to quash, a demurrer or special exception or other pleading, relying upon Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867.

Exception 30 to Art. 1995, V.C.S., reads as follows:

“30. Special venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

Yates v. State, supra, involved a venue question arising under the provisions of Art. 5420, V.C.S., where no controverting affidavits were filed to the pleas of privilege. Motion to strike the demurrer was based upon the grounds (1) that since the pleas of privilege were not controverted by a plea under oath, the right to change the venue could not be raised by demurrer, (2) that the demurrer did not constitute a controverting plea to the plea of privilege within the purview of Art. 2007 (Rule 86), (3) that the demurrer came too late being filed more than three months after the pleas of privilege were filed, and (4) that the demurrer not being a controverting plea, the allegations of plaintiff’s petition could not be used as a pleading thereon or as evidence. The Trial Court overruled the motion to strike, sustained the demurrer and overruled the plea of privilege on the ground that as a matter of law defendants were not entitled to a change of venue.

Appellee cites a number of cases as being in accord with and affirming the ruling of this Court in the Yates case. In Barnum v. Lancaster Hardware Co., Tex.Civ.App., 40 S.W.2d 1103, error dism., the Trial Court sustained the motion to strike the controverting plea because filed subsequent to the statutory time when such plea could have been legally filed but sustained the demurrer to the plea of privilege, holding as follows :

“If a plea of privilege be filed in a pending suit, and the allegations of fact contained therein are sufficient to make a prima facie case for the removal of the cause to the county of defendant’s residence, then the plaintiff must file a controverting affidavit, or the court must accept as true the venue facts, as alleged in defendant’s plea of privilege, and enter a judgment of removal. However, if the allegations of fact in the plea of privilege are insufficient on their face to make a prima facie case for removal under the allegations of plaintiffs petition, and such insufficiency is brought to the attention of the court by a proper execution to the plea of privilege, it becomes the duty of the court to determine plaintiffs’ exception under the allegations of his petition. Yates et al. v. State et al.; Humble Pipe Line Co. v. Kincaid, supra [Tex.Civ.App., 19 S.W.2d 144].”

The Court’s opinion was rendered June 20, 1931.

In Lloyds America v. Lloyds Southwest Insurers, Tex.Civ.App., 56 S.W.2d 477, er'ror dism., the Trial Court sustained plaintiff’s general demurrer to the pleas of privilege although controverting affidavits had been timely filed. The Court of Civil Appeals in an opinion rendered January 11, ' 1933, held that the Trial Court erred in sustaining the demurrer but should have completed the hearing of the venue issue made by the plea of privilege and the controverting affidavit.

In Miller v. Burnet Mercantile Co., Tex. Civ.App., 65 S.W.2d 505, error dism., the Trial Court sustained a general demurrer to the plea of privilege from which action there was no appeal and judgment was entered for plaintiff. The defendant sought injunctive relief against the enforcement of the judgment against him and the Trial Court granted a temporary injunction which was later dissolved and the case dismissed. The Court of Civil Appeals held by way of dictum that under the ruling in the Yates case the Trial Court could pass upon the sufficiency of the plea of privilege in sustaining the general demurrer. The Court’s opinion was rendered November 9, 1933.

In Schoellkopf Co. v. Daves, Tex.Civ.App., 71 S.W.2d 340, no writ history, the plea of privilege was not controverted although special exceptions were directed to its sufficiency in plaintiff’s supplemental petition. The Court of Civil Appeals held that the rule has been definitely settled that a statutory plea of privilege not controverted by setting up under oath the fact or facts relied upon to confer venue should be sustained and the venue changed, but stated where venue is fixed by statute, a formal plea of privilege tenders no issue of fact to be tried, in which case the plea is de-murrable, citing the Yates case, opinion rendered April 14, 1934.

In McCook v. Amarada Petroleum Corp., Tex.Civ.App., 73 S.W.2d 914, no writ history, pleas of privilege were filed but were not controverted except by general demurrer which was overruled by the Trial Court and the pleas of privilege sustained. In holding that the Trial Court not only had exclusive venue but exclusive jurisdiction of the suit the Court of Civil Appeals held that it was unnecessary to file a controverting affidavit to the pleas of privilege since this could be brought to the attention of the Court by general demurrer, citing the Yates case. This opinion was rendered May 29, 1934.

It should be noted that in all of the foregoing cases the opinions of the Court of Civil Appeals were rendered prior to the rendition of the opinions by the Supreme Court of Texas on April 28, 1937 in Universal Credit Co. v. Dunklin, supra, and the Court of Civil Appeals on June 4, 1937 in Universal Credit Co. v. Boling, Tex.Civ.App., 108 S.W.2d 836, holding that where venue is expressly made a part of the venue statutes under exception 30, Art. 1995, V.C. S., such issue could not be raised by general demurrer but only by a controverting affidavit.

Other cases cited by appellee are Thompson v. Pure Oil Co., Tex.Civ.App., 113 S.W. 2d 662, no writ history, opinion rendered December 16, 1937, which although citing the Yates case does not sustain appellee’s contention and Heard v. State, Tex.Civ.App., 149 S.W.2d 237, no writ history. In the Heard case the State filed controverting affidavits to the pleas of privilege filed by all defendants, which controverting affidavits referred to and adopted the allegations of the State’s petition. The State also filed general demurrers to the pleas of privilege, which were sustained by the Trial Court and the pleas of privilege overruled. The suit being one for the recovery of public lands in which the venue was fixed as a matter of law under Art. 5420, V.C.S., no issue of venue can arise under a plea of privilege. Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S.W.2d 495, 498; Stanolind Oil & Gas Co. v. State, Tex.Civ.App., 153 S.W.2d 614, 616, no writ history.

But in Universal Credit Co. v. Boling, Tex.Civ.App., 103 S.W.2d 253, a suit to recover statutory penalties under Art. 5073, V.C.S., a special venue statute, the plea of privilege was filed by the defendant to be sued in the county of his residence and the controverting affidavit thereto was timely filed by plaintiff. The Trial Court overruled plaintiff’s general and special demurrers to the plea of privilege and overruled the plea of privilege. The Court of Civil Appeals found that since this was a suit for recovery of usurious penalties, the statute which fixed the venue for such actions was not controlled by general rules depending upon proof of facts but was a question of law requiring no proof which could be determined by the allegations of the petition, cited the Yates case, and held that the Trial Court should have sustained the general demurrer to the plea of privilege.

The case reached the Supreme Court of Texas on Petition for Writ of Mandamus, Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867, 868, and the Court after stating that it did not approve the holding of the Court of Civil Appeals upon which it based its affirmance of the Trial Court’s judgment, held as follows:

“It is our opinion that the latter part of article 5073, Revised Civil Statutes of 1925, is a special venue statute pertaining to suits for penalties for the collection of usurious interest. It permits the plaintiff to file such suit in the county of defendant’s residence, or in the county where such usurious interest shall have been received or collected, or where the contract has been entered into, or where the party who paid the usurious interest resided when the contract was made. A law of this character authorizing a particular action and prescribing its venue is expressly made a part of the venue statutes by the terms of exception No. 30 of article 1995. The plea of privilege in the form prescribed by article 2007, was prima facie proof of the defendant’s .right, to a change of venue, and after its filing the burden was on the plaintiff both to allege and prove as venue facts * ⅜ ‡»

After the Supreme Court had rendered the foregoing opinion, the same case was again submitted to the same Court of Civil Appeals, Universal Credit Co. v. Boling, Tex.Civ.App., 108 S.W.2d 836, and in its opinion the Court stated as follows:

“In the original opinion by us in this case, we held that, because there was a suit to recover the statutory penalty for usurious interest paid, the venue in the suit was placed by law under article 5073, Rev.Civ.Statutes; that under plaintiff’s pleadings the venue was fixed in Young county, Tex.; and we further held that the usual and customary plea of privilege by defendant was not available to it but was subject to a general demurrer. In these holdings we attempted to follow the ruling announced in Yates et al. v. State (Tex.Civ.App.) 3 S.W.(2d) 114; Schoellkopf Co. v. Daves (Tex.Civ.App.) 71 S.W. (2d) 340; McCook v. Amarada Petroleum Corporation (Tex.Civ.App.) 73 S.W. (2d) 914.”

After quoting from the decision of the Supreme Court the Court stated further:

“From the foregoing quoted portion of the per curiam opinion by the Supreme Court, it will be seen that we were in error in our conclusions that the trial court should have sustained a general demurrer to defendant’s plea of privilege. It is apparent that the controverting affidavit required by law and proof of venue facts should have been made upon the trial.”

With respect to the holding in the Yates case the Court stated:

“In our original opinion we followed the rule announced in the three decisions by as many Courts of Civil Appeals, believing the rule a sound one. Our Supreme Court did not comment upon the conclusions reached by those courts, but we take it to mean that the principle there announced is overruled. Those cases did not reach the Supreme Court, and it was not material to a holding in this case that they should be referred to by that court.”

In Fielder v. Parker, Tex.Civ.App., 119 S.W.2d 1089, no writ history, the Court held that where a plea of privilege has been properly filed without the filing of controverting plea, the sufficiency of the plea of privilege could not be attacked by demurrers or exceptions.

In view of the holding of the Supreme Court of Texas in Universal Credit Co. v. Dunklin, supra, if Art. 7436, V.C.S. is a special statute coming under the provisions of Sec. 30, Art. 1995, appellant’s plea of privilege could only be attacked by appellee by timely filing his controverting plea asserting the right to maintain venue in the District Court of Williamson County, Texas, under Exception 30 and could not be attacked by appellee’s motion to quash or any other similar pleading not filed in accordance with Rule 86.

However appellee’s primary contention is that where a suit is properly filed in any District Court of the State of Texas under the provisions of Art. 7436, a plea of privilege will not lie since Art. 7436 is not a “special venue” statute coming within the provisions of Exception 30, Art. 1995, V.C. S. and therefore no controverting plea under oath need be filed since the question of venue is a question of law and not of fact, citing in support of its contention State v. Fairbanks-Morse & Co., Tex.Civ.App., 223 S.W.2d 339, no writ history, and Perfecto Gas Co. v. State, Tex.Civ.App., 228 S.W.2d 918, no writ history, which cases were relied upon by the Trial Judge for his ruling in sustaining the motion to quash and overruling the plea of privilege. Both of these cases were anti-trust cases.

In the Fairbanks-Morse case one of the defendants, after suit had been instituted in 1944, filed a plea of privilege to be sued in Dallas County, to which the State timely filed its controverting plea. The Trial Court did not act on the respective pleadings until 1946 when an Assistant Attorney General requested the Court to transfer the case to Dallas County which was done by order entered August 20, 1946. In Dallas County one of the defendants who had failed to file a plea of privilege in Runnels County filed its plea of privilege to be sued in Harris County, to which the State filed exceptions upon the ground that the Court was without authority to change venue or consider the plea of privilege because of the provisions of Art. 7436, which was overruled. The defendants also filed pleas to the jurisdiction of the Dallas County District Court, which, at a pre-trial hearing, were overruled, but the Trial Court sustained special exceptions to the petition and the State declined to amend.

On appeal the Court of Civil Appeals held that the Dallas County District Court was without power to enter any order in the case either on the merits or on the plea of privilege since the District Court in Runnels County was without authority to transfer the case to Dallas County on the plea of privilege filed in the District Court of Runnels County, stating:

“ * * * it is our opinion * * * that the Judge of the District Court of Runnels County was without power to change the venue on the plea of privilege of Gieb, and for the same reason the District Court of Dallas County never acquired jurisdiction or venue and was without power at any time to make any orders in the case except, to dismiss the same from the docket of the court and direct a return of the record to Runnels County where the suit has at all times pended.”

The Court further stated by way of obi-ter dictum:

“What has been said disposes likewise with the action had on the plea of privilege. A plea of privilege does not lie in a case such as the instant case arising under the anti-trust statutes and the action of the trial court in overruling the plea would have been proper had it had the power to act, but since it had no such power the action taken is wholly ineffective and there is nothing before this court so far as the merits of the plea of privilege are concerned and the case brought here on the plea of privilege is accordingly dismissed.”

In the Perfecto Gas Company case the defendant filed its plea of privilege, to which a controverting plea was timely filed, and on hearing the Trial Court overruled the plea of privilege. The controverting affidavit adopted the allegations of the State’s petition which affirmatively showed that venue was maintainable in Travis County under the provisions of Art. 7436. On appeal this Court held that since the nature and character of a suit are to be determined from the allegations of the petition, Art. 7436 controlled the venue of the case, citing State v. Fairbanks-Morse & Co., supra.

The question before this Court for decision is whether Art. 7436, V.C.S. is a law authorizing or regulating a particular character of action within the meaning of Sec. 30, Art. 1995, V.C.S. so as to permit a plea of privilege to be filed by a non-resident defendant and the proceedings thereon conducted in accordance with the applicable rules of civil procedure or is it a law where venue is controlled by the statute itself and not by the provisions of Art. 1995 and the exceptions therein provided, such as Art. 5420, V.C.S. (State Public Lands), Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S.W.2d 495, 498, or Art. 8307a, V.C.S. (Workmen’s Compensation Act), Traders & General Ins. Co. v. Curby, Tex.Civ.App., 103 S.W.2d 398, no writ history; Texas Employers’ Ins. Ass’n v. Ribble, Tex.Civ.App., 260 S.W.2d 719, no writ history.

It appears from the legislative history of Art. 7436 that prior to 1909 venue in antitrust cases was provided as follows: “ * * * in any county where the offense is committed or where either of the offenders reside, or in Travis County * * (Ch. 94, Sec. 11, Acts 28th Leg., R.S.1903.) But in 1909 the Act was amended to provide for venue in the District Court of any county in Texas and providing that after suit had been filed in any county and jurisdiction thereof acquired, it shall not be transferred to any other county except by change of venue allowed by the Court.

Since the amendment to Art. 7436 specifically provided that the only method by which an anti-trust suit could be transferred from the county in which it had been instituted was by order of the Trial Court transferring the case on its own volition or upon a motion for change of venue under Rule 257, T.R.C.P., it is our opinion and we hold that where a suit is filed by the State of Texas under the provisions of the antitrust laws (Arts. 7426-7447, V.C.S.) in a District Court in any county of the State of Texas, venue is controlled by the provisions of Art. 7436 itself and not by the provisions of Art. 1995 and the exceptions therein provided, and a plea of privilege will not lie.

It is apparent from the allegations in the State’s petition filed in the District Court of Williamson County that the action is under the anti-trust statutes (Arts. 7426-7447, V.C.S.), and since the Trial Court takes judicial knowledge of the allegations of the current pleadings filed in the cause, Eggenberger v. Brandenberger, 74 Tex. 274, 11 S.W. 1099; Deal v. Grand Finance Co., Inc., Tex.Civ.App., 228 S.W.2d 984, mand. overruled; Humphreys v. Young, Tex.Civ.App., 293 S.W. 655, 657, no writ history, it was the duty of the Trial Court to overrule the plea of privilege filed by appellant.

The judgment of the Trial Court overruling the plea of privilege is affirmed.

Affirmed.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    H. S. EARP, Appellant, v. FIRST STATE BANK OF ABILENE, Appellee.
    No. 3694.
    Court of Civil Appeals of Texas. Eastland.
    March 30, 1962.
    Rehearing Denied April 20, 1962.
    Scarborough, Black & Tarpley, Abilene, for appellant.
    Smith & Erwin, Abilene, for appellee.
   COLLINGS, Justice.

This suit was brought by the First State Bank of Abilene against Homer Glenn Earp and H. S. Earp. Plaintiff sought to recover from Homer Glenn Earp on four renewal promissory notes executed on January 14, 1960. H. S. Earp was joined as a defendant because of a guaranty executed by him on March 5, 1957, which purported to guarantee payment not to exceed $1,000.00 on Homer Glenn Earp’s past and future indebtedness to plaintiff. Default judgment was entered against Plomer Glenn Earp. Plaintiff First State Bank of Abilene moved for summary judgment against H. S. Earp and affidavits were filed both in support of and in opposition thereto. Plaintiff’s motion for summary judgment was granted and H. S. Earp has appealed.

Appellant H. S. Earp presents two points urging that the court erred in granting summary judgment for appellee (1) because controlling fact issues existed, and (2) because the written guaranty agreement did not correctly reflect the agreement of the parties and fact issues existed concerning the question of mutual mistake requiring reformation of the instrument.

The guarantee executed by H. S. Earp on March 5, 1957, a copy of which was attached to plaintiff’s pleadings and relied upon in support of the summary judgment, provided as follows:

“For the sum of one dollar and other valuable consideration, I promise to pay to the First State Bank of Abilene, Texas,.all indebtedness which Homer G. Earp now owes aforesaid bank, or may at any time hereafter owe said bank, whether such indebtedness be joint or several, primary or secondary, contract or tort; this obligation to be a continuing promise, and to apply to all obligations now in existence or hereafter owing as the same arise.
We hereby join in any request that may be made for indulgence or extension of any present or future indebtedness. We waive diligence, presentment, notice, protest, and suit, on the part of the bank in the collection of any indebtedness, and agree that the bank shall be under no obligation to notify us of its acceptance of this guarantee, nor of any advances made or credit extended, nor of the failure of the aforesaid debtor to pay any indebtedness. We agree that said bank may, without notice to us, make any changes whatsoever in any indebtedness owing to it or in terms of payment, and may release or exchange collateral and other security.
Provided, however, we shall not be required to pay under this guarantee an aggregate sum of more than $1000.00 Dollars, which sum, when paid by us, may be applied by the bank at its discretion, upon any indebtedness above mentioned, and shall discharge this obligation.”

In support of its motion for summary judgment appellee First State Bank also attached the affidavit of its Vice-President, Mr. Lester S. Ellis. He stated in substance that H. S. Earp executed a personal guaranty in writing on March 5, 1957, in favor of said bank for the benefit of Homer Glenn Earp; that on January 14, 1960, Homer Glenn Earp executed and delivered to appellee four certain renewal and extension promissory notes amounting to an aggregate of $4,155.19, bearing 8% interest and providing for the usual ten percent attorney’s fee; that the notes were secured by a chattel mortgage on four described automobiles; that Homer Glenn Earp defaulted on the notes; that the automobiles were sold at the best prices available and the proceeds applied and credited to the notes, leaving a balance of $2,430.19, and that both Homer Glenn Earp and H. S. Earp refused and still refuse to pay any of the remaining balance due on said notes.

In appellant’s pleadings and in his answer to the motion for summary judgment it was contended that the guaranty had expired and that he was no longer bound thereby; that the agreement of guaranty was for a limited period of time, intended to cover specific transactions and did not extend to the transaction sued upon. Appellant also attached to his answer to appellee’s motion for summary judgment affidavits of himself and of one Wilton O. Davis. The affidavit of appellant H. S. Earp stated that the loan secured by his guarantee was intended to cover only the initial transaction between the bank and Homer Glenn Earp and that the obligation under that transaction was paid within approximately eight months and that appellant’s obligation terminated at that time. The affidavit of Wilton O. Davis stated that he was an officer of appellee bank in 1957 and made the agreement with H. S. Earp by which he guaranteed a line of credit to be extended to his nephew, Homer G. Earp, in an amount not to exceed $1,000.00; that appellant’s guaranty was intended to cover the obligations of Homer Glenn Earp so long as he was in the used car business. The affidavit of Mr. Davis also stated that the line of credit secured by appellant’s guaranty was paid in October or November of 1958 and that the guaranty was thereby fully discharged as of that time and should have been returned to Mr. H. S. Earp.

The bank thereupon filed another affidavit by its Vice-President, Mr. Ellis, which stated, in substance, that an automobile floor plan arrangement was begun by the bank with Homer Glenn Earp on March 11, 1957, under an agreement that the bank would hold title to the cars involved and that appellant H. S. Earp would give the bank his personal guaranty, not to exceed $1,000.-00 securing this line of credit; that H. S. Earp executed his guaranty on March 5, 1957; that Wilton O. Davis, an employee of the bank at the time of the guaranty agreement, severed his relations with the bank on September 30, 1958, and was not an employee of the bank during October and November 1958, nor at any time subsequent thereto; that Homer Glenn Earp’s -floor plan account with the bank was never paid in full; that the lowest balance which he ever owed to the bank during the period in question was in the months of October and November, 1958, at which time the balance was $1,175.00 as evidenced by a copy of the bank’s ledger sheet which was attached to and made a part of the affidavit. The ledger sheet reflects the condition of said account from September 11, 1958 to April 14, 1960; that on the last mentioned date the outstanding balance was $2,430.19, which was at that time written off by the bank as a bad debt, which was reflected by the ledger sheet. The affidavit of Mr. Ellis further showed that Homer Glenn Earp continued floor planning automobiles with the bank until January 14, 1960, at which time the notes on said cars were extended in order to give him additional time to sell the cars; that it was understood that no additional automobiles would thereafter be floor planned. The affidavit stated that when Homer Glenn Earp defaulted on these renewal notes, the cars were repossessed and sold at the best price available; that repeated demands were made to Homer Glenn Earp and to H. S. Earp to honor their obligations under the notes and under the guaranty agreement, but that neither ever made any attempt to fulfill his obligation.

In our opinion the court did not err in granting appellee’s motion for summary judgment. No controlling fact issue existed which required determination. Appellee First State Bank, by its pleadings and affidavits, showed that it was entitled to recover from appellant H. S. Earp on his written guaranty.

The effect of appellant’s contention in defense of the claim against him is that the written guaranty which he signed, does not correctly set out the agreement which was made between the parties. It is a well settled general rule that parol evidence is not admissible to contradict or modify the provisions of such an agreement. 27 Tex.Jur.2d 333-334; Wilkins v. Carter, 84 Tex. 438, 19 S.W. 997; Schncider-Davis Company v. Hart, 23 Tex.Civ.App. 529, 57 S.W. 903.

A mutual mistake concerning- a material fact does constitute a ground for avoiding a contract but the mistake must be mutual rather than unilateral. 13 Tex.Jur.2d 476; Sun Oil Company v. Bennett, 125 Tex. 540, 84 S.W.2d 447. Appellant H. S. Earp did not plead mutual mistake and in our opinion the affidavits submitted by him do not show a mutual mistake. Appellant stated that his guaranty was intended to cover only the initial transaction between the bank and Homer Glenn Earp and that the obligation under that transaction was fully paid. No showing was made that the bank intended appellant’s guaranty to cover only the initial transaction with Homer Glenn Earp. The provision of the written agreement was directly to the contrary. Any mistake of appellant H. S. Earp in this respect was unilateral and not mutual.

Mr. Wilton Davis, who was an officer of appellee bank in 1957, when the guaranty of H. S. Earp was made, stated in his affidavit that the guaranty which he “took from Mr. Earp was intended to cover the floor planning for Homer G. Earp while he was in the used car business.” It was not shown by appellant H. S. Earp that he, likewise, understood that his guaranty was to cover floor planning for Homer G. Earp “while he was in the used car business.” Even if it should be held, however, that the understanding of Mr. Davis concerning the intention of the parties amounted to a mutual mistake upon which appellant could rely, there is still no issue of fact which could be determined in a manner which would relieve appellant from liability. Mr. Ellis, Vice-President of appellee bank, stated by affidavit that Homer Glenn Earp’s floor plan account with the bank was never paid in full; that he continued floor planning automobiles with the bank until January 14, 1960, on which date he executed the four notes which are the basis of this suit against him; that such notes constituted an extension of the indebtedness already owed by Homer Glenn Earp and at that time it was understood that no additional automobile would thereafter be floor planned. Appellant does not deny that Homer Glenn Earp continued floor planning automobiles with the bank until January 14, 1960, and there is no showing to the contrary. He did not show that the obligations incurred by Homer Glenn Earp to the bank during that period were paid. If the affidavit of Mr. Davis to the effect that H. S. Earp’s guaranty was intended to cover floor planning for Homer G. Earp “while he was in the used car business”, is accepted as true and available to appellant as a defense, appellant is still, under the undisputed facts, liable under his guaranty.

Mr. Davis did state in his affidavit that the line of credit which the bank extended to Homer G. Earp was paid out in October or November of 1958, and that the guaranty was fully discharged as of that time. It is shown on behalf of the bank, however, by the affidavit of Mr. Lester Ellis, that Mr. Davis left the employment of the bank on September 30, 1958, and was not an employee of the bank during October and November of 1958, nor at any time subsequent to September 30, 1958. Appellant nowhere denies this fact. Affidavits in support of or in opposition to a motion for summary judgment must be such that they would constitute competent evidence which would be admissible on the trial of the case under the rules of evidence. Fonsville v. Southern Materials Company, Tex.Civ.App., 239 S.W.2d 885 (Ref. N. R. E.). The statement in the affidavit of Mr. Davis that the line of credit extended to Homer G. Earp was paid out in October or November of 1958, was obviously a conclusion since under the undisputed evidence he was not at that time with the bank or in position to know the condition of the account. His conclusion was not admissible. In addition to this it is undisputed that the notes sued upon were thereafter executed by Homer Glenn Earp in extension of indebtedness to the bank incurred “while he was in the used car business.” Appellant did not show and we do not understand him to make any contention that these notes or the indebtedness which they renewed and extended have been paid. He is therefore liable under his guaranty.

The judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    Charles C. NICHOLS et al., Appellants, v. ALDINE INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 13920.
    Court of Civil Appeals of Texas. Houston.
    March 29, 1962.
    Rehearing Denied April 19, 1962.

      Billy E. Lee, Houston, for appellants.
    Joe H. Reynolds, Grant Cook, Houston, Bracewell, Reynolds & Patterson, Houston, of counsel, for appellee.
   WERLEIN, Justice.

Appellants, residents and taxpayers in Aldine Independent School District of Harris County, Texas, brought this suit to mandamus the Board of School Trustees of said District to call an election in accordance with a petition previously presented by certain residents of the District, for the purpose of submitting a proposal on the issuance of bonds in the amount of $1,000,-000.00 for construction of a junior high school building within the District, and to enjoin said trustees from submitting any other proposition on the election ballot, and also asking that the court construe Article 2785, Vernon’s Annotated Texas Statutes

The trial court on the verified pleadings of the parties and argument of counsel, all matters of fact having been agreed upon, rendered judgment for appellee, stating in such judgment that the ordering of a bond issue election under said Article 2785 is a discretionary function on the part of said trustees and is not subject to judicial control, absent allegations and proof of unreasonable, arbitrary or capricious abuse of discretion on the part of such board, and further that the determination by the board of trustees of the sufficiency of the petition presented to the trustees under Article 2785 is a discretionary function of the board. From the court’s judgment denying the application for mandamus and all temporary relief appellants appeal.

It is appellants’ contention that it is mandatory upon school trustees to call an election when presented with a petition signed by twenty or more, or a majority of those entitled to vote in such election. Article 2785 reads in part:

“Before an election is held to determine the proposition of the levy of such tax or the issuance of such bonds, a petition therefor, signed by twenty (20) or more, or a majority of those entitled to vote at such election, shall be presented to the County Judge of the county if for a common school district, and to the district trustees if for an independent school district. On presentation of said petition, said officer or officers shall order an election for such purpose, * *

The first question for determination is whether the Legislature, in using the word “shall” in said Article, intended that the provision should be mandatory or directory. The word “shall” is sometimes used in a mandatory sense and sometimes it is used interchangeably with the word “may”. It should be given that meaning which will best express the legislative intent. The intent of a law is the essence of the law, and it is to be ascertained from the entire context. Hess & Skinner Engineering Co. v. Turney, 1918, 109 Tex. 208, 203 S.W. 593; National Surety Corporation v. Ladd, 1938, 131 Tex. 295, 115 S.W.2d 600; Thomas v. Groebl, 1948, 147 Tex. 70, 212 S.W.2d 625; Burton v. McGuire, Tex.Civ.App., 3 S.W.2d 576, aff'd Tex.Com.App., 41 S.W.2d 238.

In referring to “such tax” or the “issuance of such bonds”, Article 2785, amended in 1953, as applicable to counties such as Harris County with a population of 700,000 or more, manifestly refers to the provisions of Article 2784g which is also an amendment by the 53rd Legislature in 1953, and which gives school districts the power, when authorized by an election held for such purpose, to levy, assess and collect ad valorem taxes to pay current interest and maturities of bonds issued and to be issued by the district. “Before such election is held” and such power can be exercised, the board of trustees must be presented a petition therefor signed by twenty or more persons in the district.

Article 2784g, Sec. 1, giving the school district power to levy, assess and collect taxes to pay the current interest and maturities of bonds issued and to be issued by the district, is clearly not mandatory. We think this Article and Article 2785 are so tied in together that Article 2785 should also be construed as not making it mandatory for school trustees to call an election. The provision in Article 2785 with respect to ordering an election upon presentation of a petition signed by twenty or more, is a check on the discretionary power conferred on the school district by Article 2784g. If such petition is presented to the school trustees and an election is ordered and held for such purpose, following the procedure outlined in Article 2785, then the trustees are authorized to exercise their potential power under Article 2784g to levy and collect taxes for the service and amortization of bonds issued and to be issued. In ascertaining the legislative intent, the entire statute must be considered. In construing Articles 2784g and 2785 together, we have concluded that the Legislature did not intend to give the word “shall” a mandatory effect.

It is evident that the Legislature, in enacting Article 2785, was aware that such Article would apply not only to small independent school districts but also to large districts such as the Houston Independent School District, and that if a bond election had to be called by the school trustees of such a district whenever presented with a petition signed by twenty or more residents of the district, the consequences might be disastrous. For example, twenty residents in the Houston Independent School District, although lacking experience and knowledge of the District’s financial limitations and revenues, could, if they desired an addition of one room to a school, force the school trustees to hold an election which might cost far more than the cost of such room, and also subject the trustees, if the election carried, to all the difficulties the sale of bonds and service and payment of the bonds at their maturities might entail. We do not think that the Legislature intended to make an election for the determination of the need for new schools or additions and the issuance of bonds for their construction subject to the desire or whim of some twenty residents in the district expressed in a petition signed by them, when the consequences could be so harmful to the best interests of the district. Our courts have held that in determining whether a provision in a statute is mandatory or directory, consideration should be given not only to the entire statute, its nature and object, but also to the consequences that would follow from each construction. Chisholm v. Bewley Mills, 1956, 155 Tex. 400, 287 S.W.2d 943; Gayle v. Alexander, Tex.Civ.App., 75 S.W.2d 706; State v. Fox, Tex.Civ.App., 133 S.W.2d 987, writ ref.

We think that in undertaking to determine the legislative intent, consideration should also be given to the broad powers that the Legislature has conferred upon trustees of independent school districts.

The Legislature, in Articles 2749 and 2780, V.A.T.S., has given school trustees exclusive power to manage and control the schools in their respective districts in no uncertain language. Article 2749 provides in part:

“Said trustees shall have the management and control of the public schools and the public school grounds; and they shall determine how many schools shall be maintained in their school district, and at what points they shall be located * * *.”

Article 2780 provides in part:

“Said trustees shall adopt such rules, regulations and by-laws as they may deem proper; and the public free schools of such independent district shall he under their control; and they shall have the exclusive power to manage and govern said schools, and all rights and titles to property for school purposes * * ⅜ shall he vested in said hoard of trustees and their successors in office; * *

In State of Texas ex rel. Edwards v. Reyna, 1960, Tex., 333 S.W.2d 832, our Supreme Court said:

“As to such matters [the holding of an election, etc.], the law does not purport to substitute the judgment of judge or jury for that of duly elected school officials, and in the absence of a clear mandate, the judiciary should not interfere in the operation of school districts or other local governmental agencies * *

See also State ex rel. Phillips v. Trent Independent School Dist., 1940, Tex.Civ.App., 141 S.W.2d 438, writ ref. For the general rule that courts will not interfere with school trustees in the exercise of the broad powers of control and management vested in them unless a clear abuse of power and discretion is made to appear, see Kissick v. Garland Independent School Dist., 1959, Tex.Civ.App., 330 S.W.2d 708, writ ref., n. r. e.; Campbell v. Jones, 1954, 153 Tex. 101, 264 S.W.2d 425; Patillo v. County School Trustees of Wilson County, Tex.Civ.App., 235 S.W.2d 924; Higginbotham v. Concho County School Trustees, 1949, Tex.Civ.App., 220 S.W.2d 213, error ref., n. r. e.; Dickenson v. Board of Trustees of Chico Independent School Dist., Tex.Civ.App., 204 S.W.2d 418, writ ref.

We have not found nor been cited to any case deciding whether said provision in Article 2785 is mandatory or directory. Sec. 1 of Article 2742f, V.A.T.S., however, which contains language somewhat analogous to that used in Article 2785, when read in conjunction with Article 2784g, has been construed as directory. See Schlemmer v. Board of Trustees of Limestone County, 1933, Tex.Civ.App., 59 S.W. 264, writ ref. In that case appellants contended that the provision in Sec. 1, Article 2742f containing the word “shall”, placed a mandatory duty upon the county board of trustees to pass an order with respect to the transfer of territory and the redefining of school boundaries. The court held that the lodging of authority in any designated board or forum generally carries with it the right of such board or forum to determine whether a proper case has arisen for the exercise of such power. The court further held that the clause in said Article, declaring that the county board of trustees shall pass an order transferring said territory, prescribes the manner in which the county board of trustees is to make known its judgment in the matter, and that it did not mean that all discretion was taken from such trustees when presented with a statutory petition for annexation. To like effect see Prosper Independent School Dist. v. Collin County School Trustees, Tex.Civ.App., 51 S.W.2d 748, aff’d Tex.Com.App., 58 S.W.2d 5; Barber v. County Board of School Trustees, Tex.Civ.App., 43 S.W.2d 319; State ex rel. Texas City Independent School Dist. v. La Marque Independent School Dist., Tex.Civ.App., 258 S.W.2d 384, writ ref., n. r. e.; Higginbotham v. Concho County School Trustees, supra.

If we are mistaken in holding that said provision in Article 2785 is not mandatory but directory, the judgment of the trial court must nevertheless be affirmed. The trial court’s judgment recites: “ * * * all matters of fact having been agreed upon * * ⅜.” but there is nothing to show what facts were agreed upon, and no statement of facts has been filed in this Court. Appellants in their only point complain that the court erred in construing Article 2785, V.A.T.S., as vesting discretion in a board of trustees in the matter of calling an election on a proper petition presented to it requesting such election be called. The record before us is devoid of any evidence showing that a proper or sufficient petition was presented to the board. It is manifest that the hoard would not have to call an election unless a sufficient petition is presented. The determination as to whether the petition is or is not sufficient must be made by the board within its discretion and the exercise of such discretion cannot be assailed absent pleadings and proof that the board acted unreasonably, arbitrarily or capriciously. There are no pleadings or proof to such effect.

In Boynton v. Brown, Tex.Civ.App., 164 S.W. 893, error ref., the court in affirming the trial court’s judgment denying a writ of mandamus to compel the officials of the City of San Antonio to order an election in connection with framing a new charter, stated that there was no allegation that the city council acted arbitrarily, unreasonably, capriciously or fraudulently, and that the allegation that the action of appellees was “without any legal excuse, and without giving any reasons for their action” was totally insufficient. See also Higginbotham v. County School Trustees, Tex.Civ.App., 220 S.W.2d 213, ref., n. r. e.; Williams v. Glover, Tex.Civ.App., 259 S.W. 957.

Before the school trustees could act upon the petition, they would have to determine whether it sufficiently complied with legal requirements and particularly with Article 2784g, Sec. 3, Article 2785, and Article 2786, in substance requiring that the petition presented to the school trustees be signed by twenty or more or a majority of those entitled to vote in such election; that the signers be property taxpaying, qualified voters of such district who own taxable property therein, and who have duly rendered it for taxation; and that the petition distinctly specify the amount of the bonds, the rate of interest, their maturity dates, and the purpose for which the bonds are to be used.

The petition filed with the board is not before us. It is true that appellants have in their original petition filed in court alleged that a petition was presented to the board, but they have failed to allege or show that said petition contained all the necessary requirements provided by law, or that the Board of Trustees acted arbitrarily or unreasonably. This Court will presume in support of the trial court’s judgment that the court found that a sufficient petition was not presented to the School Trustees and that the Board in refusing to call the election did not act arbitrarily, capriciously or unreasonably.

Judgment affirmed.


text:
    Laura FISCH, Appellant, v. TRANSCONTINENTAL INSURANCE COMPANY, Appellee.
    No. 13912.
    Court of Civil Appeals of Texas. Houston.
    March 22, 1962.
    Rehearing Denied April 12, 1962.

      A1 Crystal & The Kempers, Houston, T. M. Kemper, Houston, of counsel, for appellant.
    Bryan & Patton, Julietta Jarvis, Houston, for appellee.
   WERLEIN, Justice.

This suit was brought by appellant on an insurance policy issued by appellee, to recover loss resulting from fire damage to her home at 2510 Calumet Street, Houston, Texas, on September 14, 1958. On December 17, 1958 appellant entered into an appraisal agreement with appellee. On or about June 15, 1959, J. W. Northrup, the appraiser appointed by appellee, and the umpire, Wylie W. Vale, without the appraiser appointed by appellant joining therein, made and signed an award for appellant in the sum of $7,201.92. Prior to the date of the award, but apparently with knowledge of what it would be, appellant filed suit on June 1, 1959, to recover the loss, alleging that it exceeded the policy coverage of $20,000.00.

After hearing appellant’s case and the testimony of the umpire, the trial court discharged the jury and rendered judgment for appellee in the amount of the award. Appellant asserts that the court erred in doing so because as a matter of law the award in question was invalid and did not conform to the provisions of the policy, and also because fact issues were raised with respect to the award which, if found favorably to appellant, would justify setting it aside.

The memorandum of appraisal, Defendant’s Exhibit No. 1, shows that on December 17, 1958 appellant and appellee respectively appointed E. W. Osterloh and J. W. Northrup to appraise the actual cash value of the property and the amount of loss directly caused by the fire. On March 5, 1959 said appraisers committed themselves under oath to make an appraisal and award, and they appointed Wylie W. Vale as umpire to settle any matters of difference between them. On the same day-said umpire accepted the appointment and stated under oath that he would act with strict impartiality in all matters of difference submitted to him and would make a true, just and conscientious award.

The policy provides:

“The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences only to the umpire. An award in writing, so itemized, of any two when filed with this Company, shall determine the amount of actual cash value and loss.”

Appellant contends that the award of June 15, 1959 is invalid because made by one of the appointed appraisers and the umpire without any showing that there was a failure of the appraisers to agree or that they had any differences which were submitted to the umpire, and because without such disagreement and differences existing the umpire had no authority to act.

Neither Mr. Osterloh nor Mr. Northrup was called to testify. The record is silent as to whether they ever met and discussed the value and damage, or whether there were any differences between them or whether they failed to agree, or whether or not Mr. Osterloh ever appraised the property, or refused to act. There is no evidence of his activities after the time he accepted the responsibility of acting as an appraiser.

Mr. Vale, called as a witness by appellee, testified that he personally inspected the premises and thereafter met with Mr. Northrup and they arrived at the actual cash value of the house and the pine trees before the fire; that Northrup first talked to him about being an appraiser in the case; that he personally went to the premises at least three times; that he increased Northrup’s figure as to damages to the shingle roof; that he and Northrup resolved whatever differences there were and arrived at the total figure of $7,201.92; that he did not know Mr. Osterloh; that Osterloh was not present at any time that he and Northrup were together, nor when he and Northrup figured out $7,201.92, and that Osterloh and Northrup never did at any time submit any differences to him.

He further testified as follows:

“Q What difference did you resolve as the umpire between Mr. Os-terloh and Mr. Northrup?
“A Mr. Osterloh never did submit it to me.
“Q You didn’t resolve any differences ?
“A No, sir.
“Q So you and Northrup got together between the two of you and made the appraisal that is, this $7,-201.92?
“A Mr. Northrup made one and after checking it concurred that was our best knowledge.
* * * * * *
“Q Well, in effect, other than the few items you added you merely endorsed Northrup’s appraisal, isn’t that the effect—
“A In effect, yes, sir.”

On cross-examination appellant testified that she did not know Mr. Osterloh or Mr. Northrup or Mr. Vale and never talked to Osterloh; that she made no request of Northrup or of Vale to appear before them, and as far as she knew, her lawyer did not do so; and that her only complaint was that the building could not be restored for the amount of the award.

There is authority to the effect that if one of the appraisers resigns or deliberately refuses to act, the other appraiser and the umpire may make an award. In re Appointment of Falloon, 1958, 161 Cal.App.2d 522, 327 P.2d 18; German Ins. Co. v. Hazard Bank, 31 Ky.Law Rep. 1126, 104 S.W. 725. See also 6 Appleman on Insurance Law & Practice, p. 366, where it is stated: “If one appraiser or arbitrator resigns, withdraws, or refuses to act further, it has been held that the other one and the umpire may complete the proceeding and make a valid award.” In the instant case there is nothing to show that Osterloh resigned or deliberately refused to act as an appraiser. Therefore, we cannot sustain the award on such ground. True, the award is not invalid on its face since it complies with the policy requirement to the extent of being an award in writing “of any two”.

The general rule is that every presumption will be indulged in favor of an award unless contradicted by proof. Providence Washington Ins. Co. v. Farmers Elevator Co., Tex.Civ.App., 141 S.W.2d 1024; Robbs v. Woolfolk, Tex.Civ.App., 224 S.W. 232; Green v. Franklin, 1 Tex. 497. Appellant asserts that there is evidence which destroys such presumption in this case and which invalidates the award as a matter of law. This contention requires an analysis of the evidence.

There is no evidence as to whether Osterloh and Northrup did or did not fail to agree as to the loss. If they did not fail to agree, there was nothing to submit to the umpire and nothing upon which he could act. If they did fail to agree, then they were required by the policy to submit their differences only to the umpire. There is nothing in the policy giving the umpire the right to act in the absence of differences between the appraisers. The record is silent as to whether there were any differences. The umpire testified that no differences were submitted to him and that he resolved no differences between the appraisers. There is no evidence to the contrary. Since the umpire’s power to act is conditioned upon a disagreement between the appraisers and the submission of their differences only to him, we are of the opinion that the award, which was signed by only one appraiser and the umpire who had no authority to act, is invalid. See 6 Appleman on Insurance Law & Practice, p. 368, where it is stated:

“Where the policy provided that the appraisers should submit their differences to an umpire, it was held that the signature of the umpire was without validity unless and until the two appraisers failed to agree. * * * An umpire may act to settle differences between appraisers respecting the amount of a loss, when such differences become known to him. But an umpire, appointed to decide on matters of difference only, has no authority to pass on matters concerning which there was no difference between the appraisers. The function of an umpire who is to act in matters of difference only is not to coincide with one or the other- of the appraisers, but he is to make his award independently of such estimates. * * But where the umpire did not confer with the insured’s appraiser, the ap-praisement was held to be ineffective.”

An appraiser’s acts in excess of the authority conferred upon him by the appraisal agreement is not binding on the parties. North River Ins. Co. v. Adams, Tex.Civ.App., 300 S.W. 185, writ ref.; Reliance Ins. Co. v. Bowen, Tex.Civ.App., 54 S.W.2d 597. It has also been held that an award which is not made substantially in compliance with the requirements of the policy will not be sustained. Reliance Ins. Co. v. Bowen, supra; Carr v. American Ins. Co., D.C., 152 F.Supp. 700; Continental Ins. Co. v. Garrett, 6 Cir., 125 F. 589.

In her third point appellant asserts that the court erred in taking the case from the jury and rendering judgment for appel-lee, because fact issues were raised which should have been submitted to the jury. Appellant alleged in her petition that she is not bound by the purported award because the arbitration and proceedings therein were not fairly and impartially conducted, because appellee’s appraiser and the umpire entered into an award which is so grossly inadequate and unfair as to clearly evidence bad faith or mistake and because the award was the result of bias, carelessness or an improper investigation.

In determining whether it was proper for the court to take the case from the jury and render judgment, we must view the evidence in the light most favorable to appellant, the losing party. White v. White, 1943, 141 Tex. 328, 172 S.W.2d 295. We must indulge against the action of the court every inference that may properly be drawn from the evidence and if the record reflects any testimony of probative force in favor of the losing party, we must hold the court’s action improper. Texas Employers Ins. Ass’n v. Boecker, Tex.Civ.App., 53 S.W.2d 327, error ref.; Clutter v. Wisconsin Texas Oil Company, Tex.Civ.App., 233 S.W. 322, error ref.

The evidence shows that Mr. Northrup called the umpire, Mr. Vale, and that the two got together and arrived at the figure of $7,201.92; that Vale didn’t know Osterloh and that Osterloh was not present at any time that the umpire and Northrup were together, and was not present when the award was made; that Osterloh and Northrup did not at any time submit any differences to the umpire, and the umpire resolved no differences between them; that the umpire checked Northrup’s appraisal and concurred in it after increasing Northrup’s figure on damages to the shingle roof; and that in effect the umpire merely checked and endorsed Northrup’s appraisal, other than a few items, without talking to Oster-loh or having any consultation with him, or having the benefit of any appraisal that might have been made by Osterloh.

The evidence further shows that both Northrup and Vale are architects and that Vale has not been in the construction business since 1952; that Northrup approached Vale about being an appraiser in this case and that Vale had known Northrup a great number of years; that on October 5, 1958 appellant’s witness, Ray O. Wilson, a building contractor, who was requested to make a bid, made an appraisal and estimate of the cost of repairing the building; that Wilson’s estimate made in the hope of getting the job, was $14,318.59 after deducting from his original estimate certain excluded items; that appellant’s witness Carpenter would have testified, as shown by appellant’s bill of exceptions, that his estimated cost of making repairs to the building in 1958, based on the items listed in an appraisal made in January or February, 1959, showing in detail what work had to be done, was approximately $16,380.00.

The great disparity between the amount of the award and the cost of making repairs to the building as testified to by appellant’s witnesses, might not in itself be sufficient to warrant setting aside the award. Gulf Insurance Co. of Dallas v. Pappas, Tex.Civ.App., 73 S.W.2d 145; Camden Fire Insurance Ass’n v. McCain, Tex.Civ.App., 85 S.W.2d 270, writ dism.; Pacific American Fire Underwriters of Liverpool & London & Globe Ins. Co. v. Atkinson, Tex.Civ.App., 83 S.W.2d 441. Such great disparity, however, is a circumstance that may be considered in connection with the other evidence showing that the umpire never consulted with appellant’s appraiser at any time, and that he and Northrup apparently wholly ignored such appraiser and acted independently of him; that the umpire in effect merely checked and endorsed Northrup’s appraisal, other than for a few items, in arriving at the figure of $7,201.92; that no differences between the appraisers were submitted to the umpire as required by the policy, and that the umpire did not resolve any differences between the appraisers.

We are not called upon to decide whether such evidence would be sufficient to support findings that the proceedings were not fairly and impartially conducted or that the award was the result of bias, bad faith or mistake. We merely hold that such evidence is of some probative force and raises fact issues which should have been submitted to the jury with respect thereto.

In view of our holding, we think it unnecessary to discuss appellant’s other points, but we shall do so briefly since some of the questions raised by appellant may arise upon another trial. We do not agree with appellant that the award was not properly itemized. The house and the trees are separately listed and the actual cash value and amount of loss to each of such items are separately shown. Nor do we think appel-lee’s pleading can be construed as a judicial admission of the invalidity of the award. Appellee’s plea in abatement was overruled and the allegations in its subsequent pleadings are in the alternative. A defendant has the right to plead inconsistent defenses. Houston, E. & W. T. Ry. Co. v. De Walt, 96 Tex. 121, 70 S.W. 531, 537. Dallas Ry. & Terminal Co. v. Hendricks, 1942, 140 Tex. 93, 166 S.W.2d 116; 2 McDonald, Texas Civil Practice, p. 611, § 7.01.

The exclusion of some of appellant’s pictures showing damage to the building might not constitute reversible error, since the damage to the building was testified to in great detail and some of the pictures showing damage were admitted. Rule 434, Texas Rules of Civil Procedure. Some pictures were excluded because the witness testified that there was more damage inside the house at the time the pictures were taken than immediately after the fire. We do not consider it necessary to show the date the pictures were taken if the witness having knowledge of the facts or conditions testifies that the pictures correctly or substantially reflect such facts or conditions, and points out and explains any changes that may have occurred. Dofner v. Branard, Tex.Civ.App., 236 S.W.2d 544, writ ref., n. r. e.; Texas Employers Ins. Ass’n v. Agan, Tex.Civ.App., 252 S.W.2d 743, writ ref.; Taylor, B. & H. Ry. Co. v. Warner, 88 Tex. 642, 32 S.W. 868; Dallas Ry. & Terminal Co. v. Durkee, Tex.Civ.App., 193 S.W.2d 222, writ ref.; n. r. e.; Davis v. Illinois Terminal Railroad Co., Mo., 307 S.W.2d 395.

Appellant complains that the court erred in refusing to permit her witnesses to testify as to the reasonable cost of repairs and replacements to her residence within one or two years after the date of the fire. The policy provides:

“ * ⅜ * liability hereunder shall not exceed the actual cash value of the property at the time of loss, ascertained with proper deduction for depreciation; nor shall it exceed the amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss ⅝ ⅜ sjc >3

Upon another trial the witnesses should be allowed to testify as to what it would cost to repair or replace the property at different times after the loss, unless the time is too remote as a matter of law. We cannot say that one or even two years after the loss would be unreasonable as a matter of law. Ordinarily what is “reasonable” is a question of fact.

With evidence as to the cost of repairs at the time Mr. Wilson made his appraisal and estimate on or about October 5, 1958 and evidence as to what such cost would be at subsequent dates not too remote as a matter of law, due to increased cost of repairs, the jury would be in a position to determine what the cost of the repairs and replacements would be if made within a reasonable time after the loss, deducting or excluding therefrom, as provided in the policy, loss caused directly or indirectly by neglect of the insured to use all reasonable means to save and preserve the property at and after the loss. See Aycock v. Republic Insurance Co., La.App.1959, 116 So.2d 317, 74 A.L.R. 2d 1267, and annotation.

The policy provides:

“The amount of loss for which this Company may be liable shall be payable 60 days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.”

We construe this provision to mean that if the award is found to be valid, payment would not be due until 60 days after the award was filed with the company, and in such case interest would begin to run at such time and continue until the award is paid or payment is tendered. If the award is invalid as a matter of law or if the jury should find against the award, then interest would begin to run on the amount of the loss 60 days after proof of loss was received by the company. Pennsylvania Fire Ins. Co. v. W. T. Waggoner Estate, Tex.Com.App., 1931, 39 S.W.2d 593, 596, and authorities cited.

Judgment reversed and cause remanded.


author: MURRAY, Chief Justice.

text:
    FIRST NATIONAL BANK IN DALLAS and Lawyers Surety Corporation, Appellants, v. BANCO LONGORIA, S. A., Appellee.
    No. 13891.
    Court of Civil Appeals of Texas. San Antonio.
    March 21, 1962.
    Rehearing Denied April 18, 1962.

      Mann, Byfield & Costillon, Laredo, Coke & Coke, Dallas, for appellant.
    J. G. Hornberger, Oscar Laurel, Abraham Kazen,. Jr,, Laredo, for appellee.
   MURRAY, Chief Justice.

This is an appeal by First National Bank in Dallas, hereinafter referred to as Bank, and Lawyers Surety Corporation, from a judgment in a garnishment suit rendered in favor of Banco Longoria, S.A., as plaintiff, against the First National Bank in Dallas as garnishee and Lawyers Surety Corporation as surety on a replevy bond filed by the defendant debtor, Casco Chemical Corporation, in the sum of $11,495.36, together with interest and court costs. The judgment appealed from was entered on January 31, 1961.

Appellants’ first point is:

“This court should reverse the judgment of the trial court and render judgment dismissing the case because the appellee so controverted the first amended answer of the garnishee that the trial court lost jurisdiction to do anything but dismiss the case or order it transferred to Dallas County where the garnishee bank is domiciled.”

Two lawsuits are involved herein. The first, which is hereinafter called the main suit, was filed by Banco Longoria, S.A., against Casco Chemical Corporation in the 111th District Court of Webb County, Texas, and given the number of 20,347. Judgment was rendered in that cause on March 23, 1960, in favor of plaintiff and against defendant in the sum of $10,905.58, together with interest, attorney’s fees and court costs. An appeal was attempted to this Court and the judgment was affirmed on certificate on August 17, 1960, and mandate was issued out of this Court on September 3, 1960. That judgment is now final and is not here questioned in any way.

The other suit, which is ancillary to Cause No. 20,347, is the garnishment proceeding styled Banco Longoria, S.A., v. First National Bank in Dallas, which was begun by plaintiff on application for a writ of garnishment against the Bank, and also filed in the 111th District Court of Webb County, as No. 20,355. The suit was filed on April 11, 1959. A writ of garnishment issued the same day and was served upon the Bank in Dallas on April 13, 1959, commanding it to appear before the District Court in Laredo in Webb County, at 10:00 o’clock A.M. on the Monday next following the expiration of twenty days from the date of service of the writ, which was May 5, 1959; “then and there to answer upon oath what, if anything, you are indebted to the said Casco Chemical Corporation, and were when this writ was served upon you, and what effects, if any, of the said Casco Chemical Corporation you have in your possession, and had when this writ was served, and what other persons, if any, within your knowledge, are indebted to the said Casco Chemical Corporation or have effects belonging to it in their possession.” On the next day, April 14, 1959, Casco Chemical Corporation filed a replevy bond in the principal sum of $16,000.00, signed by itself as principal and Lawyers Surety Corporation as surety, conditioned for the payment of any judgment against the First National Bank in Dallas, garnish ee in the suit. Whereupon, on the same day, the Judge of the 111th District Court of Webb County, Texas, entered an order “that the FIRST NATIONAL BANK IN DALLAS be and it is hereby authorized to release any effects, debts, shares or claims of any kind seized and garnisheed by the Writ of Garnishment issued out of this Court on the 11th day of April, 1959.” Thereafter on the 28th day of April, 1959, the Bank filed its original answer, stating that it had complied with the above order of the court.

Thereafter, on March 23, 1960, judgment was rendered in the main suit as hereinbe-fore stated. On August 31, 1960, the Bank filed its First Amended Original Answer stating that on April 13, 1959, the date upon which the writ of garnishment was served upon it, Garnishee was indebted to Casco Chemical Corporation in the sum of 65 cents in a regular checking account, and the sum of $1,759.09 in a payroll checking account.

On the same day a hearing was had in the garnishment suit, and the court announced it was rendering judgment against Casco Chemical Corporation and Lawyers Surety Corporation for the full amount of the judgment in the main suit, and for nominal damages only, against the Bank. No written judgment was ever signed or entered, and on September 6, 1960, Banco Longoria, S.A., filed a motion to re-open the hearing in order that it might present additional evidence, and also filed an answer to the first amended answer of the Garnishee, which had been filed on the day of the first hearing, August 31, 1960. The motion to re-open the case was set for hearing on September 13, 1960, and was then and there granted. On October 31, 1960, appellee filed a motion praying the court to order Garnishee Bank to file an amended answer setting forth the amount which it was indebted to Casco Chemical Corporation on each day between April 14 and May 4, 1959. When this motion came on for hearing the Garnishee Bank moved the court to transfer the cause to Dallas where the Garnishee Bank resided, under the provisions of Article 4096, Vernon’s Ann.Civ. Stats. On November 21, 1960, the debtor, Casco Chemical Corporation filed a sworn answer styled “Traverse of all of the Answers of Garnishee.” The allegations of such “Traverse” were to the effect that all of the funds on deposit in the Garnishee Bank were advanced on drafts, and hence in the nature of loans upon which it was paying interest, and were not moneys which were subject to garnishment. To this “Traverse” the appellee filed a motion to strike. Casco Chemical Corporation then filed a motion to transfer the cause to Dallas County, upon the provisions of Art. 4096, supra. On January 4, 1961, at the time of the trial, appellee filed a second motion to strike such “Traverse” and it was granted. At the trial, the court rendered judgment for the full amount of ap-pellee’s claim against Casco Chemical Corporation and Lawyers Surety Corporation as surety on the replevy bond, together with interest and court costs, as above stated. It is from this judgment that this appeal is taken by First National Bank in Dallas and Lawyers Surety Corporation.

It is the contention of appellants that all of the maneuvering that took place in this garnishment proceeding amounted to a traverse of the Bank’s answer and therefore, under the provisions of Art. 4096, supra, the 111th District Court of Webb County was without jurisdiction to do other than dismiss the cause or transfer it to the District Court of Dallas County, the residence of the Garnishee Bank. We do not agree.

There seems to be no decided case that is exactly the same as this one. Let us first consider what was the effect of the filing of the replevy bond. Undoubtedly, it had the effect to authorize the Bank to release any funds subject to being reached by the writ of garnishment, especially since the court so ordered. But it did not have the effect of relieving the Garnishee Bank from filing an answer replying to the questions which the writ of garnishment asked. The replevy bond, in a way, took the place of the Bank and relieved it from liability, but it was necessary for the court to know what funds were in the hands of the Bank belonging to Casco Chemical Corporation, so that it could render judgment in such amount. It was the duty of the Bank to report all of the funds that it had on hand belonging to Casco Chemical Corporation at the time the writ of garnishment was served, and also those coming into its hands up until the day it was to answer, which was May 4, 1959. It is quite clear that a writ of garnishment does not only impound the funds in the hands of the bank when the writ is served, but also such funds belonging to the debtor up to and including the day the garnishee is to answer. Cooper v. Cocke, Tex.Civ.App., 145 S.W.2d 275; 26 Tex.Jur. pp. 713, 721, §§ 41, 46. A garnishee cannot avoid accounting for funds coming into its hands by filing an answer at once, or by only stating, in its answer, that it had certain funds on hand belonging to the defendant debtor on the day the writ was served. It is not improper for the garnishee to file his answer before the return day of the writ, but if the garnishor has reason to believe that the garnishee has received funds subsequently to the time it answered, or if the answer does not fully reply to all the questions asked in the writ, it is proper for the garnishor to except to the answer and ask the court to require the garnishee to answer fully. Such action is not a traverse of the garnishee’s answer. 27 Tex.Jur.2d 63, § 113; Gray v. Armour & Co., 129 Tex. 512, 104 S.W.2d 486.

Here the garnishee did not file an answer to the questions asked in the writ of garnishment, on or before May 4, 1959, which was appearance day, and perhaps the court would have been justified in rendering judgment on the replevy bond for the full amount of plaintiff’s claim. This the court did not do but permitted garnishee to file a belated answer on August 31, 1960, which did not answer all of the questions submitted. This again would probably have justified a judgment for the full amount, but the court required the garnishee to answer more fully. The second amended answer of the garnishee replied to all of the questions propounded in the writ and justified the judgment rendered. The second amended answer of the Bank shows clearly that during the time covered by the writ of garnishment, to-wit, from April 13 to May 4, 1959, Garnishee had in its possession money belonging to Casco Chemical Corporation more than sufficient to pay plaintiff’s entire claim. This is true without resorting to the “collateral account.” The fact that the Bank had loaned this money to Casco, collected interest thereon and had paid it out to other parties, in no way relieved the Bank from liability. The replevy bond simply assumed this liability of the Bank.

The fact that the replevy bond was given before the amount of money on deposit with the Garnishee Bank was known and before it had filed any answer, and the further fact that some of the money was deposited in the Bank after the replevy bond was filed, does not change the situation in any way. The replevy bond assumes the liability of the garnishee and simply stands in the place of the funds held by the Bank as far as payment of the judgment against the defendant-debtor is concerned.

Appellants insist that when Casco filed its “traverse” to all of the answers filed by the Bank, the jurisdiction of the 111th District Court was terminated. We do not agree. This “traverse” was not verified as is required by Rule 673, Texas Rules of Civil Procedure. Furthermore, the so-called “traverse” does not in fact traverse the Garnishee’s answer, because the reason given why such funds were not subject to garnishment is not a legal one. The money which was in the Bank in the name of debtor-defendant could be paid out upon his check and was subject to garnishment, even though it was money upon which he was paying interest and was borrowed for the purpose of meeting a payroll. Ragsdale v. Groos, Tex.Civ.App., 51 S.W. 256; 26 Tex.Jur.2d 687, § 19.

The 111th District Court of Webb County did not lose jurisdiction of this cause as a result of the various motions and answers that were filed herein.

Appellants next contend that in any event the judgment should not have been for more than the sum of $1,759.74, which was the total amount shown by the Garnishee’s first amended answer. We do not agree. The answer shows that this was the amount shown in checking accounts of Casco on the day the writ of garnishment was served, but fails to show what sums were received after service of the writ and before appearance day for the Garnishee. The second amended answer of the Garnishee Bank showed that during this period more money was received in Casco’s checking accounts than was needed to cover the judgment rendered, without taking into consideration the “collateral account.” The replevy bond was executed before the amount on deposit with the Bank was known. The replevy bond was given to protect the Bank from having to pay any judgment that might be rendered against it by reason of being the garnishee. If the surety on the replevy bond wanted to know the amount of its liability, it should have waited until after the Bank had fully answered. The surety on the replevy bond guaranteed the judgment that might ultimately be rendered against the Bank up to $16,000.00. It did this without first determining what the amount of the judgment would be, and without first learning the amount of the funds in possession of the Bank belonging to Casco.

Appellants next contend that the trial court erred in rendering judgment against the Bank. The judgment provides that no execution shall issue on such judgment. This was a mere formality, inasmuch as the appellee must look to the replevy bond and its signers to collect the judgment. The judgment when considered as a whole makes it plain that the replevy bond stands in the place of the money held by the Bank. It is difficult to know just how much should be recovered against the signers of the replevy bond without first determining the amount of the judgment against the Bank. The condition in the replevy bond is for the payment of any judgment against First National Bank in Dallas, Garnishee. What is this condition worth, if there is to be no judgment against the Bank. It seems that it is not improper to render judgment against the Bank without the right of execution, and then collect the amount of the judgment from the signers of the replevy bond. If taking judgment against the Bank without the right of execution is error at all, it is harmless error, and under the provisions of Rule 434, T.R.C.P., is no ground for a reversal of the judgment.

Inasmuch as there was sufficient money in Casco’s checking accounts, without resort to the “collateral” account, we do not deem it necessary to pass upon whether the funds in the “collateral” account were subject to garnishment.

The judgment is affirmed.


text:
    R. E. COX, d/b/a Frio-La Salle Milling Company, Appellant, v. The HERRICK COMPANY STEEL PRODUCTS and H. C. Herrick, Jr., Appellees.
    No. 13904.
    Court of Civil Appeals of Texas. San Antonio.
    April 4, 1962.

      Petry & Phair, Carrizo Springs, for appellant.
    Stubbeman, McRae, Sealy & Laughlin, Robert K. Hudson, James G. Noland, Midland, for appellees.
   MURRAY, Chief Justice.

This is an appeal from an order sustaining the plea of privilege of The Herrick Company Steel Products, a corporation, and H. C. Iierrick, J r., and moving the cause to the District Court of Midland County, Texas.

Appellant, R. E. Cox, d/b/a Frio-La Salle Milling Company, filed his controverting affidavit setting up Subdivisions 5, 23 and 29a of Art. 1995, Vernon’s Ann.Civ.Stats. Appellant contends that Subd. 5, supra, applies here because appellees had contracted in writing to construct a steel building, suitable for grain storage, in the town of Dilley, Frio County, Texas, the county of suit. The alleged written contract consists of six different instruments. When these six instruments are construed collectively, or separately, we fail to find where appellees expressly contracted in writing to perform this contract in Dilley, Frio County, Texas.

Appellant’s first contention is that the written contract expressly provided that the steel building, suitable for grain storage, was to be constructed in Dilley, Frio County, Texas.

The six instruments of the contract are: (1) The Herrick Company’s proposal to construct the grain storage building; (2) Details of financing the building; (3) Specifications and building layout; (4) Foundation plans and specifications; (5) Proposed addition of two intermediate bays to the building; (6) A recapitulation of details of financing after including expense of the two additions. The fourth instrument, which is the foundation specification, has endorsed upon it, in the lower right-hand corner:

“The HERRICK Company
ENGINEERS — CONSTRUCTORS
MIDLAND, TEXAS
GRAIN STORAGE
DILLEY TEXAS”

Instrument No. 1, which is called a proposal to construct a grain storage building, has written on the top of the page “Job Site by 5/16/58” and then to the right, “Best way to Missouri Pacific at Dilley.” On the left-hand side, at the top is “4/16/58 The Herrick Co., 605 South H. St., Midland, Texas ATTENTION Mr. R. E. Cox, Dilley, Texas.”

The above is all there is in the six instruments that could possibly be construed as an agreement in writing to perform the contract at Dilley, Texas. We feel that the most these references do, is to raise an inference that the grain storage building was to be constructed in or near Dilley, Texas.

Subdivision 5, Art. 1995, Vernon’s Ann. Civ.Stats., was amended in 1935, and now reads as follows:

“Contract in writing.—If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile. As amended Acts 1935, 44th Leg., p. 503, ch. 213, § 1.”

Prior to the 1935 amendment the courts had been holding that this subdivision included contracts that by necessary implication were to be performed in the county of suit, but since the 1935 amendment the subdivision includes only such contracts that expressly provide they are to be performed in a certain county or a definite place therein.

We cannot here say that the contract expressly provided that it was to be performed in Dilley, Texas, a definite place in Frio County. The notation “GRAIN STORAGE DILLEY TEXAS” is nothing more than a part of the endorsement on the fourth instrument.

The notation “Job Site by 5/16/58” on the first instrument, would seem to indicate that the job. site would be ready by May 16, 1958, some thirty days after the signing of the first instrument. This possibility is strengthened by the testimony of Cox, that the job site had grown up in weeds and he had agreed to get busy and clear it off. It certainly is a long way from saying that the building is to be constructed upon a certain job site located in Dilley. The other phrase, “Best way to Missouri Pacific at Dilley,” means, if anything, that the best way to ship anything to Dilley is over the Missouri Pacific. These phrases are a long way from a statement that the Herrick Company has agreed' in writing to construct the building on a definite job site in Dilley. The fact that the building was later constructed in Dilley, Frio County, does not establish the fact that the written contract expressly provided that it was to be built there. Blanco v. Rowell, Tex.Civ.App., 347 S.W.2d 641; Harris v. Ashland Oil & Ref. Co., Tex.Civ.App., 315 S.W.2d 327; Butler, Williams & Jones v. Goodrich, Tex.Civ.App., 288 S.W. 2d 887; Traweek v. Ake, Tex.Civ.App., 280 S.W.2d 297; Martin v. McKenzie, Tex.Civ.App., 242 S.W.2d 960; Nutt v. Cottingham, Tex.Civ.App., 242 S.W.2d 826.

The place of performance can be established by extrinsic evidence where a contract does not disclose that fact, but such evidence would not meet the requirement of Subd. 5, permitting the suit to be brought in the county expressly named in the written contract as the place of performance. Blanco v. Rowell, supra.

Appellant relies strongly upon Butler, Williams & Jones v. Goodrich, supra. It seems that this case is based upon Harrison v. Nueces Royalty Co., Tex.Civ.App., 163 S.W.2d 244, which in turn is based upon Cities Service Oil Co. v. Brown, 119 Tex. 242, 27 S.W.2d 115. We will discuss the cases in reverse order. Cities Service Oil Co. v. Brown was written in' 1930, long before the amendment to Subd. 5 in 1935, and is therefore not helpful here. It goes no further than- to hold that where' the invoice, signed by the buyer of merchandise contains the recital: “Receiyed above merchandise in good order, for which I, or we, promise to pay the above amount at the principal office of the company ” it is a contract in writing within the meaning of the then venue statute, even though it requires parol proof to identify the place of payment. We agree fully with this statement of the law.

■ In Harrison v. Nueces Royalty Company the promissory note sued upon provided that it was “payable at the office of Nueces Royalty Company.” It was stipulated that the “principal and only office at that time (when the note was executed) and prior to that time and ever since that time of the Nueces Royalty Company * * * was and is and has been at all times in Corpus Christi, Nueces County, Texas.” The Court held that the location of the office of the Nueces Royalty Company could be established by the stipulation, and that thus the contract in writing named the definite place for payment of the note in Nueces County, Texas. We find nothing to disagree with in this case. It undoubtedly states the law as it exists today. The case of Butler, Williams & Jones v. Goodrich, supra, simply follows the case of Harrison v. Nueces Royalty Co.

In the case at bar there is no provision as to where the building is to be constructed, and the mere appearance of the words, “Job Site by 5/16/58,” “Best way to Missouri Pacific at Dilley,” “Grain Storage Dilley Texas,” is a long way from a provision that the building is to be constructed in the town of Dilley, or even anywhere near Dil-ley. The written contract here does not meet the requirements of Subd. 5, Art. 1995, Vernon’s Ann.Civ.Stats.

Appellant next contends that he was entitled to maintain this suit in Frio County under Subd. 23 and Subd. 29a, Art. 1995, Vernon’s Ann.Civ.Stats. Appellant totally failed to bring himself within the provisions of these subdivisions, and in fact practically so admitted in his oral argument. These contentions are without merit and are overruled.

The judgment is affirmed.