author: WERLEIN, Justice.

text:
    CITY OF GALVESTON, a Municipal Corporation, Appellant, v. Loy JORDAN et al., Appellees.
    No. 14292.
    Court of Civil Appeals of Texas. Houston.
    April 2, 1964.
    Ervin A. Apffel, Jr., City Atty., Galveston, for appellant.
    Holman Lilienstern, Texas City; Neu-gent & Lilienstern, Texas City, of counsel, for appellees.
   WERLEIN, Justice.

This suit was brought by the City of Galveston against Loy Jordan, Clyde E. Smith and F. B. Thompson, partners, doing business under the name of Mainland Construction Company, to recover damages allegedly sustained by the City as a result of said defendants negligently damaging the City’s influent water main at the intersection of 7th Street North and Main Street in the Town of Alta Loma in Galveston County, Texas. From a take-nothing judgment rendered against it by the trial court without a jury, the City has perfected its appeal. The parties will be referred to as plaintiff and defendants as in the court below.

At the request of plaintiff, the trial court made its findings of fact and conclusions of law. Appellant does not object to findings Nos. 1, 2, 4 and 6, which are substantially as here set out: The City maintains a 30 inch concrete influent water pipe line or main which was constructed in 1942 or 1943. The part of the main involved in this suit was laid in 7th Street North and runs in an easterly direction until it reaches Main Street where it makes a 90° right angle turn and continues south with Main Street. At such right angle turn the main was covered hy one to two feet of soil. At the time the main was built a poured concrete thrust block was constructed adjacent to and just east of the water main at the point of the right angle turn to strengthen the water main against the thrust and pressure of water coursing through it. Plaintiff’s water main was constructed of pre-cast concrete pipe with mortared joints, which are inherently weaker and inferior to pipe now available.

On or about February 10, 1960, the defendants, pursuant to a contract with Galveston Water Control & Improvement District No. 8, were laying a 10 inch' sewer line in a westerly direction within the street right-of-way of 7th Street North, at its intersection with Main Street. The defendants’ activities included the digging of a ditch approximately 13 feet deep, with a ditching machine, and installing the sewer pipe and backfilling. After reaching the intersection, the sewer line is located north of and parallel with the water main, both proceeding westerly within the right-of-way of 7th Street North. The distance from the center line of the water main to the center line of the sewer line, after they become parallel, is 8.5 feet. During the construction of the sewer line ditch, the south edge of the open ditch was 5.5 feet north of the north edge of the water main. Prior to digging the sewer line ditch into said street intersection, engineers of Galveston County Water Control & Improvement District No. 8 located the water main by probing, and the course of the sewer line was relocated farther north so that the sewer ditch, when constructed, was at a greater distance from the water main than was originally planned. The purpose of this was to avoid hitting the water main with the ditching machine. The sewer line was constructed by defendants in accordance with the plans and specifications and located by them in compliance with such changes as made by the engineers. Mr. Lind Nelson, who was the Director of Public Works of the City of Galveston, knew in advance of the construction by defendants of the sewer system of Galveston County Water Control & Improvement District No. 8 in the vicinity of said 30 inch water main in said intersection.

Appellant asserts that the following findings of fact by the court are contrary to’ the overwhelming weight and preponderance of the evidence:

“3. Before any of the construction activities of Defendants reached the vicinity of the intersection of 7th Street North and Main Street, the water main was leaking in one or more places within the intersection.
* * * íH * *
“5. The ditching machine did not strike or disturb the thrust block as it proceeded into and through said Street intersection, the course and location of the ditch being far enough North of the water main to prevent this.
5¡í $1 í|C ¡%Z % *
“7. The City of Galveston maintains pumping and other facilities on the mainland of Galveston County used in procuring and transporting such-water ; and a crew of workmen are employed by it in the Alta Loma area to operate these facilities. One of these employees is James Ryan, a pumper, who had, as a part of his duties, the responsibility of notifying Mr. Lind Nelson of breaks or leaks in the water main in the Alta Loma area. Mr. Ryan was present when the water main in said intersection was located by probing and the course of the ditch relocated and staked out by the Water District’s engineers. Mr. Ryan was informed by Defendants prior to the entry of the ditching machine into said street intersection that the water main was leaking in such intersection.
“8. Prior to digging into the intersection, no City employee or agent warned Defendants of possible damage to its water main or thrust block because of the proximity of the proposed sewer line to it on 7th Street. After the relocation of the sewer route, and after Mr. Ryan was notified by Defendants of leaks in the water main within such street intersection, no City employee or agent advised Defendants that it might damage the water main if the planned sewer line construction was accomplished.
“9. As the ditching machine approached the street intersection, more and more water was encountered, which made the construction operation very difficult. In order to expose the source of this water, Defendants removed the overburden of asphaltic pavement, compacted shell and soil from sections of the water main within the street intersection at and near the right angle turn. This released pressure from the leaks or breaks in the water main and allowed the water to escape therefrom more freely. Defendants also drilled holes adjacent to the water main on the North side thereof and placed well points therein. Well points are devices which are used in the removal of excess water near construction sites. In all of the foregoing, Defendants did not break or otherwise damage said water main.”

It would unduly lengthen this opinion and serve no useful purpose to summarize the testimony of the various witnesses for plaintiff and defendants. It will suffice to say that we have read the entire statement of facts and carefully noted and analyzed the testimony of each witness, and have concluded that the court’s findings of fact, conclusions of law and judgment are not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In Re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660.

In its Second Point, plaintiff asserts that the trial court erred in admitting the un-sworn statement of its witness, Joe Maca-luso, into evidence after the witness had denied giving the statement in the form it appeared in at the time of the trial, such statement having been admitted for impeachment purposes. Mr. Macaluso, who lived near the intersection of 7th Street North and Main Street, when asked on direct examination whether there had been any leaks in the intersection, testified that prior to any of the digging in the street there was a little water on the street whenever he would pass there. On cross-examination he testified that there was a damp spot which stayed all the time “past the intersection, maybe 20 feet past the intersection,” but not right in the intersection. He admitted that he gave a statement to a man who called upon him, which reads as follows:

“I, the undersigned, state that prior to the time Mainland Construction Company of Texas City started work on sewer line at Main Street and 7th, water was standing in the street at all times, a little amount of water.”

Counsel for defendants later offered the statement which was admitted over plaintiff’s objection. No objection was made by plaintiff however, when the witness was asked whether he had given such statement. He explained that he did not say in the statement that the leak was in the intersection and that the phrase “Main and 7th” merely identified the intersection, but that the water was 20 feet therefrom.

The case was tried before the court who could properly appraise the evidence and determine whether the statement did in fact contradict the witness’s testimony or confirm the same. At most such evidence was cumulative since several other witnesses testified to leaks at or near the intersection prior to any of the digging in the street by defendants. Also, there had been other testimony that in case of a leak in a water main, the water would follow the line of least resistance and might show up some 20 feet or more distant from the site of the leak.

The court admitted the statement which was sighed by the witness, for impeachment purposes, and commented, “If we were going to a jury I wouldn’t do it, but I don’t think it makes any difference.” If there was any error in admitting the statement, it was not such as was calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

Judgment affirmed.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    Johnny DODD, Appellant, v. The PEOPLES NATIONAL BANK, Guardian of the Estate of Cathy D. Baker, a minor, Appellee.
    No. 7547.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 11, 1964.
    J. Byron Saunders, Tyler, for appellant.
    John Minton, Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, for appellee.
   FANNING, Justice.

Appellant’s statement of the nature of the case, adopted by appellee, is quoted from appellant’s brief as follows:

“■This is an Appeal from a Judgment from the 114th Judicial District Court of Smith County, Texas, wherein the ’ trial Court withdrew the case from the consideration of the jury and de- ■ nied the probate of a lost Will. .The Appellant was named Executor in the Will' and a carbon copy of said Will was secured by Appellant from the Honorable Harry Haigler, an attorney who drew the Will, and attempted to probate the same in the County Court of Smith County, Texas, which probate thereof was denied by the County Judge. On Appeal to the 114th Judicial District Court of Smith County, Texas, and after submission of all testimony as to the execution of the original Will by one of the attesting witnesses and other testimony, including the introduction of said carbon copy, the District Judge withdrew said case from the consideration of the jury, denied the probate thereof and dismissed the jury, from which action of the Court this appeal is being taken.”

Appellant presents a single point of error on appeal which reads as follows:

• "The error of the trial court in refusing to submit to the jury the determination as to whether or not the carbon copy of the Will attempting to be probated has been revoked.”

We further quote in part from appellant’s brief as follows: “The sole and only question in this case is whether or not the Proponents of the lost Will, whereby the carbon copy of same was offered, were entitled to a jury determination as to whether or not the original Will has been revoked. The facts and testimony offerred are fully set out in the Statement of Facts filed with this appeal but briefly may be summarized as follows: Archie D. Beaty, a wrecking yard operator and resident of Tyler, Smith County, Texas, had been previously married to one, Jerry Beaty, and that during that marriage, the decedent had adopted Cathy D. Beaty, the natural daughter of his, then, wife. Archie D. Beaty and Jerry Beaty were subsequently divorced in 1959 and Archie D. Beaty was subsequently killed February 16, 1963 in an automobile accident in Smith County, Texas, in which accident one of the attesting witnesses to the lost Will was, likewise, killed. The Will, a carbon copy of which was offerred, was executed December 20, 1962, and when last seen, the Will was executed with all of the formalities required by law and was in a coat pocket of the decedent. No Will was found after his death. The testimony of-ferred, as can be seen from the Statement of Facts, was by the Honorable Harry Haigler, the attorney who drew the Will, Joe E. Wilson, one of the attesting witnesses to the Will, and several witnesses showing motive for the execution of the Will as drawn and statements by the decedent as to its being in existence together with suspicious circumstances which could have accounted for its disappearance. The last witness who heard the decedent mention the Will was one, Marion Sams, an employee of the decedent, who talked to him approximately two hours prior to Mr. Beaty’s death. The carbon copy of the Will was contested by the Appellee, as Guardian of the adopted daughter, for the reason that if Archie D. Beaty died intestate, his Estate would pass and vest in said adopted daughter but if the carbon copy of the Will were allowed to be probated, then his Estate would pass by the Will to his sister, Katherine French, who is now Administratrix of his Estate.”

After the Will was executed it was delivered to Mr. Beaty, the decedent. It is also clear that the Will of the deceased was last seen in his possession, in his coat pocket at his home at his wrecking yard near Tyler. The decedent died nearly two months after the execution of his Will, and after his death upon immediate, diligent and extensive search, no Will of decedent was found, either in his home, place of business, automobile, on his person, in his lock box in his Tyler Bank, or in any other place. There was no testimony offered that it had been last seen in the possession of anyone other than the decedent.

The carbon copy of the Will was not signed by decedent or any attesting witnesses. Only the original Will was executed and no duplicate Will was executed, and as above stated, the original Will, the only executed Will, was never found and was last seen in the possession of decedent.

The law applicable to the case at bar is correctly stated by the Amarillo Court of Civil Appeals in Bailey v. Bailey, 171 S.W.2d 162. We quote from the Bailey case in part as follows:

“The law is well established in this State, as well as in almost every jurisdiction in this country, that in a proceeding to probate a will, where it is shown that it was executed by the decedent and when last seen or accounted for, it was in his possession or in a place to which he had ready access but after his death it can not be found, the presumption arises that the testator destroyed it in his lifetime with the intention of revoking it. The presumption that it was revoked by the testator stands in the place of positive proof to that effect and he who seeks to establish the will assumes the burden of overcoming the presumption by producing facts and circumstances contrary thereto or that it was fraudulently destroyed by some other person. McIntosh v. Moore, 22 Tex.Civ.App. 22, 53 S.W. 611; Buchanan v. Rollings, Tex.Civ.App., 112 S.W. 785; Clover v. Clover, Tex.Civ.App., 224 S.W. 916; Aschenbeck v. Aschenbeck, Tex.Civ.App., 62 S.W.2d 326; Davis v. Roach, Tex.Civ.App., 138 S.W.2d 268; Collyer v. Collyer, 110 N.Y. 481, 18 N.E. 110, 6 Am.St.Rep. 405.
“ * * *
“A summation of the testimony relied upon by appellees to overcome the presumption that Dr. Bailey intentionally destroyed his will with the purpose of revoking it brings us inevitably to the conclusion that it constituted nothing more than suggestions, possibilities, and surmises. We do not find any evidence whatever that the testator did not destroy, and did not intend to destroy, his will for the purpose of revoking it. As is shown by the authorities cited above and many others that could be cited, both in this-State and in other jurisdictions, the presumption that he did so stands in; the place of positive proof and it can be overcome only by clear and convincing evidence. In the recent case of Bob’s Candy & Pecan Co. v. McConnell [140 Tex. 331], 167 S.W.2d 511, 514, our Supreme Court said: ‘An inference cannot be based on a mere possibility. It can be based only on a fact proved or on something known to be true. Wright v. Conway, 34 Wyo. 1, [241 P. 369] 242 P. 1107. It cannot be based on a mere surmise or conjecture. Inferences of fact cannot be drawn from uncertain premises. Texas & N. R. O. Co. v. Brannen et al., Tex.Com.App. [140 Tex. 52], 166 S. W.2d 112, decided November 25, 1942/
“Appellees not having produced any substantial evidence that Dr. Bailey did not destroy his will animo revo-candi, the court below was not warranted in admitting the will to probate. Appellants’ motions for a directed verdict and for judgment non obstante veridicto should have been sustained. The judgment will therefore be reversed and, since the record indicates the case was fully developed, judgment will here be rendered denying the application of appellees to probate the will.”

The evidence relied upon by appellant to substantiate his burden of rebutting and overcoming the presumption of revocation consists of evidence relative to motive for the execution of the will as drawn, suspicious circumstances which could have accounted for the disappearance of the Will and uncorroborated statements of the decedent concerning the Will.

After carefully considering the record in this cause it is our view that appellant did not produce any substantial evidence of probative force of the clear and convincing nature necessary to overcome the presumption of revocation of the will by the d ecedent.

We hold that the trial court correctly removed the case from jury consideration and correctly rendered judgment denying probate of the will in question.

The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    Ray MILNER, Appellant, v. Fred BOSWELL, Appellee.
    No. 16500.
    Court of Civil Appeals of Texas. Fort Worth.
    March 6, 1964.
    Rehearing Denied April 24, 1964.

      Wade, Davis, Callaway & Marshall and Clyde M. Marshall, Jr., Fort Worth, for appellant.
    Byrom,- Wright, Butcher & Prager and Don Prager, Fort Worth, for appellee.
   MASSEY, Chief Justice.

Construably, the pleadings of the plaintiff, Fred Boswell, sought total recission of a contract formerly existent with the defendant, Ray Milner, and the return to him of a money deposit of $850.00 delivered as part of the total performance on his part to pay $2,700.00,—under pleadings alleging a “total failure of consideration” for the contract. Milner plead only a general denial in reply.

Where there is a plea of total failure of consideration, it includes and permits proof of a partial failure, in support of a judgment of recission as to an unperformed portion of a contract.

In this instance the proof established, at the most, a “partial failure of consideration”, as contrasted with a total failure, for it was established by the evidence that after a partial performance on the part of Milner it was mutually agreed by him and Boswell that the former would abstain from any further work. The work consisted in remodeling a dwelling, plus the addition of another bedroom.

In the trial court there was no jury and the judge thereof was the finder of fact. The state of the evidence warranted a decision by him that there had been a “partial failure” of the consideration due to be performed by Milner under the original contract, so that pro tanto (“for so much” or “to that extent”), as applied to that part of the contract completely performed, he was entitled to be paid by Boswell. Obviously, if the amount to which he was entitled was less than the $850.00 already paid, Milner would be entitled to retain the proper amount, but obliged to deliver over to Boswell the amount remaining.

There was a want of evidence, i. e., there was no evidence of probative force, establishing the amount or degree of Mil-ner’s performance, nor the amount to which Milner was entitled under the contract as applied to his accomplished performance thereunder prior to the time the parties mutually agreed to rescind the portion unperformed. Since it was Boswell who sought recission as to the portion of the contract not yet performed, under proper application of any “partial failure of consideration” theory, it would be (or should have been) Boswell who carried the burden of showing the extent of the contract both as performed and unperformed, and the value of the portion performed, if the amount to which either party was entitled was to be ascertained. Otherwise stated: Boswell, in view of the parties’ agreement to rescind the part of the contract not performed, carried the burden of proving the value of the contract to Milner as applied to the portion thereof Milner had performed.

We are of the opinion that any proper judgment of an appellate court which reverses the judgment of the trial court should be one which incorporates therein an order remanding the cause to the trial court, rather than one of rendition, when the reversal is occasioned by a lack of evidence in support of the judgment of the trial court;—unless it clearly appears that the case was fully developed, i. e., unless it clearly appears that there was no evidence available to be introduced in the trial court which would have supplied such “lack”. In this case it is obvious that Boswell can supply such evidence.

Judgment is reversed and the cause remanded.


author: DUNAGAN, Chief Justice.

text:
    Jack PERRY, Appellant, v. Ira C. LITTLE, Sr., Appellee.
    No. 25.
    Court of Civil Appeals of Texas. Tyler.
    April 2, 1964.
    Rehearing Denied April 23, 1964.

      Joseph Jaworski, Bracewell, Reynolds & Patterson, Houston, for appellant.
    W. Newton Barnes, Barnes & Barnes, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a summary judgment. Appellant instituted suit against ap-pellee in the 95th District Court of Dallas County for breach of contract. Both appellant and appellee filed motions for summary judgment, and the court below granted to appellee a summary judgment and overruled appellant’s motion for summary judgment.

In the trial court appellant was plaintiff and appellee was defendant, and in this opinion they will be referred to as plaintiff and defendant.

Plaintiff says in his original petition that he was the owner of Certificate No. 109 issued by the Medical Specialties Sales Corporation of Dallas, Texas, which represents 5,000 shares of the common stock of said corporation; that on the 11th day of July, 1961, plaintiff and defendant, for a valuable consideration and in consideration of the mutual promises therein set forth, agreed in writing in a written contract, and by reason of said contract defendant agreed to purchase the above-mentioned stock from plaintiff on January 22, 1962, at the price of $5.00 per share; that on January 22, 1962, plaintiff still owned and held the said stock and stock certificate. On January 23, 1962, by United States mail, he wrote defendant that he so held the stock and informed him that he was ready, willing and able to sell said stock to him for the consideration expressed. Plaintiff further says that from and after January 22, 1962, he did perform each and every obligation required of him in the contract sued upon and has called upon and demanded of defendant to purchase his stock pursuant to the alleged contract and plaintiff has many times made demand on defendant for performance of said alleged contract which defendant has failed and refused to perform in whole or in part to plaintiff’s damage in the sum of $25,000.00, with interest thereon. The alleged contract, which is the basis of this lawsuit, consists of a letter from defendant to the plaintiff dated July 11, 1961, which reads as follows:

“July 11, 1961
“Mr. Jack Perry
“806 Waugh Drive
“Houston, Texas
“Dear Sir:
“This is to advise that you are holding 5,000 shares of Medical Specialties Sales Corporation stock which I will purchase from you at $5.00 per share on January 22, 1962. This commitment to purchase is good in the event you are holding the stock on this date.
“It is further understood that C. W. Deaton has the right to pick up this stock from you on or before January 22, 1962 at $5.00 per share.
“In the event Mr. Deaton should want to pick up this stock from you, I want you to have him procure a letter in writing from me before you release the stock.
“Yours very truly,
“I. C. Little /s/
“I. C. Little”

The alleged demand by the plaintiff on defendant is by the following letter from plaintiff to defendant.

“January 23, 1962
“Mr. I. C. Little
“I. C. Little Contractors
“Suite 603
“Fidelity Union Life Building
“Dallas, Texas
“Dear Mr. Little:
“In accordance with your letter of July 11, 1961, I am writing you to let you know that I am holding 5,000 of Medical Specialties Sales Corporation stock which you have agreed to purchase from me at $5. per share.
“I am also informing Mr. C. W. Deaton of the due date in case he wants to exercise his option to pick it up.
“I am looking forward to hearing from you regarding this matter.
“Sincerely,
“Jack Perry”

Defendant has plead under oath in his first amended original answer and has testified in his deposition and in his affidavit attached to his answer to plaintiff’s motion for summary judgment that plaintiff and defendant agreed that such letter, which constitutes the basis for plaintiff’s suit, would not be delivered nor would same be binding upon defendant until and unless defendant had a further conversation and agreement with one C. W. Deaton; that such consideration and agreement never took place, of which fact plaintiff had full knowledge; that therefore such letter was never validly delivered to plaintiff and same never became a binding and enforceable agreement; further, that it was specifically agreed and understood between plaintiff and defendant that such letter was to be delivered only for the purpose of guaranteeing to plaintiff that he would receive certain shares of the capital stock of Freeport Bank & Trust Company, a Bahamas corporation; that upon delivery of that stock to plaintiff, such letter would be returned and would be of no further force and effect and defendant would not be further obligated thereby; that such stock was delivered to plaintiff according to his testimony in his deposition on file herein, and thereby said letter and any promise contained therein were rendered void and of no further force and effect and the alleged option therein granted to plaintiff was terminated.

Plaintiff first urges that the trial court erred in considering defendant’s motion for summary, judgment because the motion is insufficient as a matter of law in (a) there is a total absence of proper affidavits; (b) defendant’s affidavit contains mere conclusions; (c) failure to attach exhibits; and (d) failure to comply with the rule precludes consideration of defendant’s motion.

In support of his alleged error, plaintiff, in his brief, contends that defendant’s motion for summary judgment was insufficient as a matter of law because there were no proper affidavits attached. The motion, furthermore, made reference to extrinsic documents which were not certified to or attached to the pleadings and defendant’s failure to comply with Rule 166-A(e), Texas Rules of Civil Procedure, should have precluded the court’s consideration of defendant’s motion for summary judgment. We overrule this contention.

In the case at bar, the defendant, in his motion for summary judgment, stated that the depositions of each of the parties on file herein are incorporated herein and made a part hereof for all purposes and reference is made to the pleadings, depositions, and affidavit attached to defendant’s answer to plaintiff’s motion for summary judgment on file herein. Since the documents were a part of the trial court record in this cause it was sufficient to refer to them in the motion without attaching same thereto and they were properly before the trial court for consideration. Willoughby, et al. v. Jones, et al, 151 Tex. 435, 2551 S.W.2d 508; Maxwell v. Campbell, Tex.Civ.App, 282 S.W.2d 957 (writ ref.).

Plaintiff has cited as authority for his contention in this regard the case of Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274. The Martin case is not applicable, in that the document therein referred to in the motion for summary judgment was not filed among the papers in the cause nor was it a part of the record in the trial court.

It is immaterial as to whether defendant’s motion for summary judgment was properly sworn to. It is not necessary that a motion for summary judgment be verified. Willoughby, et al. v. Jones, et al., supra. The affidavit of the defendant, Ira C. Little, Sr, appears to comply with Rule 166-A. It states that he is over twenty-one years of age, of sound mind, has never been convicted of any crime or offense, that he has personal knowledge of every statement therein made, and said affidavit is subscribed and sworn to before a Notary Public in and for Dallas County, Texas.

Plaintiff has raised numerous points of error on this appeal. However, we think this case will have to be reversed and remanded because the pleadings, affidavits, and depositions raise genuine issues of material fact. The defendant, through his sworn answer, deposition, and affidavit, says that at a time prior to the alleged delivery of the letter signed by him and directed to Jack Perry, dated July 11, 1961, he had a telephone conversation with Perry wherein they agreed that the letter would not be delivered and that no money or other consideration would be paid by Perry to Deaton, or anyone else, and that no transaction would be completed between Perry and Deaton until he (Little) had an opportunity to talk to Mr. Deaton and clarify the terms of such proposed transaction with him, which condition defendant says was never fulfilled. Defendant further says that it was agreed that this agreement would be a condition precedent to his being bound or obligated on said letter in any manner. That in the same conversation it was specifically agreed that in the event such letter was delivered to him it would be returned to Little and would be of no further force and effect in the event Deaton delivered to Perry 5 shares of the stock of the Freeport Bank & Trust Company and that upon such delivery Little would not be further obligated on said letter. The plaintiff denies that any such agreement was made, but does admit that he received the 5 shares of the stock in the Freeport Bank & Trust Company prior to January 22, 1962. If such an agreement was entered into between the plaintiff and defendant, it would constitute a condition precedent to the letter taking effect. A condition precedent is such as must happen or be performed before a right can accrue to enforce an obligation dependent upon the happening or performance thereof against another in favor of one claiming such right. Cozby v. Edwards, Tex.Civ.App., 203 S.W.2d 569; Bowers, et al. v. Bowers, et al., Tex.Civ.App., 99 S.W.2d 334; Ferguson v. Mansfield, 114 Tex. 112, 263 S.W. 894.

A. condition precedent in the law of contracts may be either a condition which must be performed before the agreement of the parties shall become a binding contract, or it may be a condition which must be fulfilled before the duty to perform an existing contract arises. So, such conditions may relate either to the fonnation of contracts or to liability under them. 17A C.J.S. Contracts § 338, pages 318-319; Continental Transfer & Storage Co. v. Swann, Tex.Civ.App., 278 S.W.2d 413.

In the case of Reinert v. Lawson, Tex.Civ.App., 113 S.W.2d 293, the court said:

“The parties to a contract may agree that it shall not become effective or binding until or unless some specified condition is performed or occurs, in which case there is no binding contract until such condition has been complied with. 10 Tex.Jur. p. 52, § 29, and authorities there cited. Such a stipulation is called a 'condition precedent.’ 10 Tex.Jur. p. 343, § 197, and authorities there cited. When a promise is subject to a condition precedent, there is no liability or obligation on the promisor and there can he no breach of the contract by him until and unless such condition or contingency is performed or occurs. 10 Tex.Jur. p. 396, § 225, and authorities cited; Ferguson v. Mansfield, 114 Tex. 112, 263 S.W. 894, 900, par. 4; First Methodist Episcopal Church v. Soden, 131 Wash. 228, 229 P. 534, 536, par. 3.”

As additional authorities on this point we cite Bowers v. Bowers, supra; Courreges v. System Freight Service, Inc., Tex.Civ. App, 152 S.W.2d 841.

In the case of Faulkner v. Otto, Tex.Civ.App., 230 S.W. 447, the court said that:

“The stipulation with reference to securing the loan from the Federal Land Bank is clearly a condition precedent. It expressly provides that if said loan is not secured neither party is bound by the contract. The effect of this stipulation is to postpone performance by both parties of any of the obligations resting upon them respectively until the loan is secured. Precedent conditions are defined to he those which are to he performed or fulfilled before the obligation of the contract commenced.”

Plaintiff contends that the contract speaks for itself and parol evidence regarding a stipulation made prior to the execution and delivery of the contract is inadmissible. We do not agree.

It is generally held that a conditional delivery of a writing may be shown by parol testimony if the conditional delivery establishes a condition precedent rather than a condition subsequent. This view is based on the principle that if the effectiveness of an act is dependent upon the happening of some future event, the act is not consummated until the happening of the event. Guisinger v. Hughes, Tex.Civ. App., 363 S.W.2d 861.

Parol evidence is admissible which tends to show that an instrument was never, in fact, delivered as a present contract, unconditionally binding according to its terms from the time of delivery, but that it was delivered to become an absolute obligation upon the happening of a certain event or contingency, and that such event or contingency has never occurred. Such evidence does not contradict or vary the terms of the writing, but tends to show that the instrument has never had any legal inception rendering it valid and binding as between the parties. Holt v. Gordon, Tex.Civ.App., 176 S.W. 902.

In Morris v. Logan, et al., Tex.Civ.App., 273 S.W. 1019 (writ ref.), the court held:

“A written contract, be it deed or note or otherwise, does not become effective until it is delivered to the grantee, or some one for him, for that purpose and with that intention. If it is delivered into the possession of the grantee upon a special condition, as in this case, it is but a conditional delivery; and such delivery does not become absolute, and the instrument does not become effective, until the happening of the contingency provided for. In such case it is proper to show the stipulated condition, to which end the true facts and circumstances evidencing the intention and agreement of the parties may be shown by parol evidence, and when thus ascertained will be given effect.”

Other authorities to the same effect are Baker v. Baker, 143 Tex. 191, 183 S.W.2d 724; Juliani v. Fitz-Gibbon, Tex.Civ.App., 234 S.W.2d 448.

Of course, there is a distinction between a parol condition affecting the delivery of a written obligation and one affecting its payment. This distinction is not always clearly apparent from the provisions of the condition. But, when the distinction is ascertainable, and is determined, the rules concerning its enforceability thus ascertained are clearly distinguishable. A parol condition affecting the delivery of a written obligation is enforceable; whereas, a parol condition affecting the payment of a delivered written instrument is not enforceable if it operates to add to, take from, or vary, the terms of the written instrument. Moser v. John F. Buckner & Sons, Tex.Civ.App., 283 S.W.2d 404; Shepherd v. Woodson Lumber Co., Tex.Civ.App., 63 S.W.2d 581; Farrar v. Holt, Tex.Civ.App., 178 S.W. 618; Nelson v. Boggs, Tex.Civ.App., 177 S.W. 1005.

The parol condition as alleged by defendant in this case does not operate to add to, take from, or vary, the terms set out in the letter from Little to Perry.

Our Supreme Court, in the case of Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515, said:

“It may be shown by parol testimony that an ordinary written instrument was executed under an agreement that it was not to become effective except upon certain conditions.”

It is the rule universally recognized that in a suit to enforce an ordinary contract in writing which does not involve title to land, testimony is admissible to show a contemporaneous parol agreement that the instrument was delivered with the understanding that it was not to become effective until the happening of certain event. Republic Supply Company v. Barrow, Tex. Civ.App., 41 S.W.2d 475; Watson v. Rice, Tex.Civ.App., 166 S.W. 106 (writ ref.) ; Holt v. Gordon, 107 Tex. 137, 174 S.W. 1097.

Defendant takes the position that there is a lack of mutuality of obligation. We consider the letter from Little to Perry, on which this lawsuit is founded, to be nothing more than an offer to purchase a certain amount of stock at a fixed price and at a specified time, in the event certain contingencies came to pass. If plaintiff accepted Little’s letter, then there would be a mutual obligation as there would be a promise for a promise. Williams v. Rogan, et al., 59 Tex. 438.

The Supreme Court of Texas held in the case of Hutchings v. Slemons, 141 Tex. 448, 174 S.W.2d 487, 148 A.L.R. 1320, that:

‘A bilateral contract’ is one in which there are mutual promises between two parties to the contract, each party being both a promisor and a promisee.”

As further authority, we cite the case of Simmons and Simmons Construction Co. v. Rea, 155 Tex. 353, 286 S.W.2d 415, an opinion by our Supreme Court written by Justice Calvert, wherein it announced the general rule to be that when a contract between two parties is reduced to writing and signed by one party and expressly accepted orally by the other it is sufficient to impress upon it the character of a written instrument, and that a written instrument signed by one party and expressly accepted orally by the other becomes a written contract.

The Supreme Court in the case of Texas Farm Bureau Cotton Ass’n v. Stovall, 113 Tex. 273, 253 S.W. 1101, said:

“Mutuality is absent when one only of the contracting parties is bound to perform, and the rights of the parties exist at the option of one only. And, conversely, a contract is not unilateral where it contains mutual obligations binding on both parties. * *
“It is quite elementary that the promise of one party is a valid consideration for the promise of the other party.”

Unless an offer is supported by an independent consideration, there is, until acceptance, a complete want of mutuality, and no contract between the parties. Womack v. Dalton Adding Machine Sales Co., Tex.Civ.App., 285 S.W. 680; Johnson, et al. v. Breckenridge-Stephens Title Company, Tex.Com.App., 257 S.W. 223.

In the present case, there was no independent consideration for the offer, and defendant, until acceptance, was not bound by any of its provisions.

Plaintiff, by deposition, testified that, in the telephone conversation between him and Little prior to the delivery of the letter (from Little to Perry) that he accepted the letter. Defendant contends that there was no acceptance of the letter.

The letter itself does not obligate plaintiff to sell to defendant the stock referred to therein. Therefore, we believe a question of fact was raised as to whether plaintiff accepted the offer contained in the letter within the specified time stated in the letter. Also, we believe an issue of fact was raised as to whether defendant’s letter was delivered to plaintiff for the special purposes alleged.

Appellant’s other points of error are without merit and are overruled.

For these reasons, the decision of the trial court is reversed, and the case remanded for trial on its merits.


author: RENFRO, Justice.

text:
    Mack Henry BROOKS et ux., Appellants, v. WICHITA COUNTY, Texas, Appellee.
    No. 16511.
    Court of Civil Appeals of Texas. Fort Worth.
    April 3, 1964.

      James E. Ferguson, Cleburne, for appellants.
    Donald E. Short, County Attorney, and Glynn Purtle, Asst. County Atty., Wichita Falls, for appellee.
   RENFRO, Justice.

The Juvenile Court of Wichita County declared the minor children, Sherry Lynn Brooks and Billy Jack Brooks, to be dependent and neglected children. Custody of the children was placed in the Probation Department of Wichita County.

The father of the children was an inmate of the State penitentiary at Huntsville.

The mother of the children voluntarily appeared, testified she could not care for the children, and requested the court to declare them dependent and neglected.

At the hearing the paternal grandparents, although not parties to the suit by intervention or otherwise, appeared with their attorney, denied the children were dependent, and requested custody be placed with them. They were given a full hearing.

Neither parent appealed. The grandparents did appeal.

They did not file a brief in this court as required by Rule 414, Texas Rules of Civil Procedure and good cause for such 'failure was not shown. Hence, there are no points of error before us.

Under the provisions of Rule 415, this court has the authority, fundamental error not being apparent of record, to dismiss the appeal for want of prosecution.

Realizing, however, that the best interest of the children in cases such as this one is of paramount importance, we have given careful study to the entire record.

We find the judgment that the children were dependent and neglected children is supported by the evidence, and in view of all the evidence we cannot say the court abused its discretion in placing the custody in the Probation Department.

Affirmed.


author: MURRAY, Chief Justice.

text:
    Monroe ALBERT, M. D., Appellant, v. Arnold ALBERT, M. D., Appellee.
    No. 14240.
    Court of Civil Appeals of Texas. San Antonio.
    March 18, 1964.
    Rehearing Denied April 15, 1964.

      Morriss, Morriss, Boatwright & Lewis, San Antonio, for appellant.
    Levey & Goldstein, San Antonio, for ap-pellee.
   MURRAY, Chief Justice.

Appellant, Monroe Albert, instituted this suit in the District Court of Bexar County, Texas, against appellee, Arnold Albert, seeking to recover damages for the breach of an arbitration award which had been agreed to and ratified by them. The trial was to a jury and resulted in judgment in appellant’s favor in the sum of $56.63, together with interest and certain costs, from' which judgment Monroe Albert has prosecuted this appeal. • •

Monroe and Arnold Albert are brothers. They were partners and owned considerable property as such partners. A disagreement arose between them, and they decided to submit their differences to arbitrators. The arbitrators made a report and also a supplemental report, which were agreed to and ratified by the two brothers. This suit was instituted for an alleged breach of this arbitration agreement. Appellee answered, filed a cross-action to set aside the arbitration award, and sought judgment dissolving the partnership, and for recovery of one-half of the partnership assets.

The trial was begun on March 5, 1963, went to the jury on March 12, at 1:37 p. m.,. and the jury returned its verdict at 6:10 p. m. on the same day. On March 29, 1963, some seventeen days after the jury had returned a verdict, on motion of appellee to take a non-suit as to his first trial amendment and cross-action, the trial court, without prejudice, dismissed appellee’s counterclaim for certain sums alleged to be due for rent. This action of the trial court which was taken over appellant’s objection, is his principal complaint.

We are of the opinion that the trial court erred in dismissing appellee’s cross-action without prejudice, after the jury had retired to consider its verdict, after the jury had returned its verdict into open court, and after such verdict had been received by the trial court. Rule 164, Texas Rules of Civil Procedure, provides as follows:

“At any time before the jury has retired, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief.. When the case is tried by the judge, such non-suit may be taken at any time ■ before the decision is announced.”

It would appear from the provision of this rule that a party has an absolute right to. take a non-suit in a jury trial at any time before the jury, retires to consider its verdict. Brooks v. O’Connor, 120 Tex. 126, 39 S.W.2d 14; Morris v. University of Texas, Tex.Civ.App., 348 S.W.2d 644, reversed on other grounds, 352 S.W.2d 947; Rice v. W. T. Raleigh Co., Tex.Civ.App., 48 S.W.2d 648; Cox v. Texas Electric Ry., Tex.Civ.App., 32 S.W.2d 669, aff., Tex.Com. App, 49 S.W.2d 725, 89 A.L.R. 11. It further seems that the court may, within its discretion, grant a non-suit even after the jury has retired, Vincent v. Bell, Tex.Civ. App, 22 S.W.2d 753; 89 A.L.R. 70; 126 A.L.R. 284, hut where the jury has returned its verdict the trial court cannot grant a motion for non-suit without prejudice, unless he first sets the verdict aside. Simpson v. Charity Benev. Ass’n, 137 Tex. 215, 152 S.W.2d 1093; Hume v. Schintz, 91 Tex. 204, 42 S.W. 543; 20 Tex.Jur.2d 182, § 6.

The trial court in this case did not set the verdict aside, but proceeded to render judgment on such verdict. The court erred in permitting appellee to take a non-suit as to his cross-action without prejudice after it had received the verdict of the jury.

Appellee says, in effect, that we should treat this case as a trial before the court without a jury, because his cross-action only presented a question of law, and there were no questions of fact with reference to it which could or should have been submitted to the jury. We do not agree. We think there were questions of fact which should have been submitted to the jury with reference to the cross-action, but even if we are mistaken in this, the situation here is covered by Rule 164, supra, and under the provisions of this rule the trial court was without jurisdiction to grant appellee a non-suit without prejudice at the time it did so.

The trial court erred in not denying ap-pellee any relief sought by him in his first trial amendment and cross-action, because it was for rents alleged to be due him by appellant. Appellee stipulated that the monthly rentals had all been paid, including $500.00. for some months and $600.00 for the others, and in- the face of this stipulation he cahnot recover any further rents from appellant.

Accordingly, the judgment of the trial court will be reformed and amended so as to eliminate that part which grants to ap-pellee the right to take a non-suit as to his first trial amendment and cross-action, without prejudice, arid judgment will be here rendered that appellee take nothing by reason of the cross-action stated in his first trial amendment, and the judgment of the trial court, as thus reformed and amended is affirmed.

Reformed, amended and affirmed.


text:
    Tom MAPLES, d/b/a Tom Maples Mans’ Shop, Appellant, v. Bert KLIMIST, d/b/a Klimist Store Fixture Mfg. Co., Appellee.
    No. 7565.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 4, 1964.

      Paul M. Branch, Kilgore, for appellant.
    Cecil D. Elfenbein, Dallas, for appellee.
   FANNING, Justice.

Plaintiff-appellee sued defendant-appellant for breach of a written order for store fixtures and sought a judgment for monetary damages.

Plaintiff-appellee filed a motion for summary judgment as to liability but not as to damages. This motion was contested by defendant-appellant. The trial court granted plaintiff's motion for summary judgment as to liability and ordered the cause to proceed to trial upon the issue as to damages, from which summary judgment defendant-appellant has appealed.

Appellee has filed a motion to dismiss the appeal on the ground that the order entered by the court is not a final judgment, and is not an appealable judgment. Appel-lee’s motion to dismiss is well taken. See Minchen v. Murrah, et al, Tex.Civ.App., 285 S.W.2d 372, writ refused, where it was held that an order granting a summary judgment as to liability for malicious prosecution but reserving for trial the issue pertaining to damages was not a final judgment or an appealable interlocutory order. We quote from said case in part as follows:

“Rule 166-A, Texas Rules of Civil Procedure provides for the very procedure that was had here. Paragraph (a) of said Rule provides that either party may move for summary judgment in his favor for all or any part of his cause of action, and further provides that a summary judgment, interlocutory in character, may be entered on the issue of liability alone, although there is a genuine issue as to the matter of damages. Subsection (d) of said Rule provides that where a case is not fully adjudicated, on such motion the court may specify those facts that appear without substantial controversy, and may direct such further proceedings in the action as are just. Of course such an order as entered in the case below is an interlocutory order and'no appeal lies from an interlocutory order unless provided by law. Rule-166-A does not provide for any such appeal.
“In the notes of Federal Advisory Committee on amended Rule 56, Federal, page 481, V.A.T.R.C.P., there is a discussion as to what is meant by partial summary judgment and whether or not it is appealable. Such discussion and the cases there cited seem to hold that a summary judgment of the character we have before us was not a final judgment, and is not appealable.
“We therefore grant the motion and dismiss the appeal.”

Appellee’s motion is granted and appellant’s appeal is dismissed.


author: . WILSON, Justice.

text:
    REPUBLIC ACCEPTANCE CORPORATION, Appellant, v. Billy W. NICHOLS, Appellee.
    No. 4217.
    Court of Civil Appeals of Texas. Waco.
    March 26, 1964.
    Rehearing Denied April 16, 1964.

      Leonard L. Franklin, Austin, for appellant.
    A. R.'Archer, Jr., Monahans, for appellee:
   . WILSON, Justice.

The trial court sustained appellee’s plea of privilege in appellant’s suit against him on a promissory note. The plea of privilege contained a plea of non est factum verified as required by Rules 86 and 93(h), Texas Rules of Civil Procedure. Appellant’s unverified controverting plea asserted venue in the county of suit under Subd. 5, Art. 1995, Vernon’s Ann.Tex.St., and alleged defendant had made two payments on the note in that county.

Appellant says that the court should have found that even if appellee did not execute the note, he ratified it by making the payments. The verified plea of non est factum placed in issue the execution of the note, on which issue appellant had the burden of proof. See Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758. The order on the plea reflects evidence was offered, which the court considered. There is no statement of facts. We must presume appellant failed to discharge its burden. Mays v. Pierce, 154 Tex. 487, 281 S.W.2d 79, 82.

After the judgment sustaining the plea of privilege was rendered, appellant filed and apparently served a request for admissions under Rule 169. Upon appellee’s motion the trial court entered an order, the effect of which was that “plaintiff’s requests for admissions should be stayed”, and defendant not be required to answer or respond to the requests “insofar as his plea of privilege is concerned.” Appellant asks reversal on the ground the court had no power to act on the motion or stay the admission process after the plea of privilege was sustained. If the correctness of this contention be conceded, it does not require reversal of the plea of privilege order because (a) the stay order was restricted to the plea of privilege which had already been determined, and the matter had become moot as to the venue issue; and (b) the order was interlocutory and not appeal-able as to the merits of the case.

Affirmed. ’ . ;


author: SELLERS, Justice.

text:
    The STATE of Texas et al., Appellants, v. J. C. LANDERS et ux., Appellees.
    No. 41.
    Court of Civil Appeals of Texas. Tyler.
    April 2, 1964.
    Ralph Prince, Crim. Dist. Atty., Gregg County, and George McCrea, Asst. Dist, Atty., Longview, for appellants.
    Earl Roberts, Roberts & Smith, Long-view, for appellees.
   SELLERS, Justice.

This is a condemnation case brought by the State of Texas and the County of Gregg against J. C. Landers and wife, Effie Lan-ders, for the purpose of acquiring right of way through the appellees’ land in Gregg County, Texas. The suit involves some 12 acres, with the appellees’ residence thereon near the City of Longview in Gregg County.

The trial was to a jury and the .parties stipulated that all proceedings for the.condemnation of the property were properly had up to the trial of the case in the County. Court of Gregg County. Only one issue was submitted to the jury; and in answer to such issue, the jury found the value of the property condemned by appellants was $36,-000.00.

The appellants duly filed a motion for new trial, and an amended motioh’for new trial which was overruled by operation of law, the appellants having failed to call the motion to the attention of the court and secure a ruling thereon. The appellants have duly prosecuted an appeal to this court; and in their brief, they have only two complaints with respect to the trial of the case, which are as follows:

"FIRST POINT: The Court should not have admitted the testimony and deed of Mrs. Vera Calloway concerning the sale of her property to the State ■of Texas, condemnor, for the reason .that said sale was not a voluntary sale and therefore not admissible as a com- ' parative sale in determining the fair market value of the land condemned and taken by the State.
“SECOND POINT: The Court should not have admitted into evidence the exhibits of Defendant, said exhibits being the color slides showing the inside of Defendant’s house and furnishings, for the reason that said exhibits were highly prejudicial and were entered into evidence solely to instill sentiment in the jury and inflame the minds of the jurors against the Plaintiffs.”

Appellants’ first point of error complains of admission of the deed from Mrs. Vera Calloway to the State of Texas, in which she conveyed a small tract of land adjoining appellees’ land for road purposes.

It appears from the record that this deed was admitted in evidence after having been proven up by appellees and after cross-examination of Mrs. Calloway by attorneys for appellants and no objection whatever was made to its admission, nor was a motion made to suppress the same after its admission. The first complaint of admission of this deed is found in the amended motion of appellants for a new trial, which motion was never acted upon by the trial court but was allowed to remain filed in the trial court until it was overruled by operation of law. In this situation of the record, the authorities are uniform that this court cannot entertain an assignment of error which complains of the admission of evidénce in the trial court where no objections to such evidence was made. Tex.Jur.2d, Vol. 23, Sec. 208, p. 320; Tex. Jur.2d, Vol. 3, Sec. 159, p. 438, and many authorities therein cited.

The other assignment of appellants complains of admission in evidence of certain colored pictures showing the inside of appellees’ home with the furnishings therein.

Colored photographs are usually admitted upon the same proof as a black and white photograph. The courts seem to make no distinction insofar as color is concerned. While colored photography is of comparatively recent origin as compared to black and white pictures, when admissible, they are regarded, because of color, as a more faithful type of reproduction than black and white photographs. 53 A.L.R.2d, p. 1102.

Our Court of Criminal Appeals has held colored photographs admissible to show the condition of an injured party taken to a hospital when the accused was on trial for aggravated assault and the penalty assessed was two years in jail and a $500.00 fine. Cordero v. State of Texas, 164 Tex.Cr.R. 160, 297 S.W.2d 174.

It would seem to this court that, if colored pictures are admissible against a man on trial for his liberty, they would be admissible where only his property rights are involved. It would seem to be the contention of the appellants that the admission of colored photographs of the interior of the house, with its furnishings; such as, piano, pictures on the walls, and other furnishings, which were not taken by the condemnation suit would be calculated to arouse the jury’s sentiment in favor of the appellees and cause them to allow excessive damages for the property taken. With this contention we cannot agree. The pictures were admitted with the instructions that the furnishings were not being taken and would not be considered for any purpose While it has been held not to be error to exclude such pictures of the interior of a building being condemned with the furnishings intact (Taylor et ux. v. City of Austin, Tex.Civ.App., 291 S.W.2d 399; Wooten et al. v. State of Texas, Tex.Civ.App., 348 S.W.2d 281), the rulings were sustained because there were other pictures of the interior of the building admitted in evidence after the furnishings had been removed. We are of the opinion that the pictures were admissible and no doubt helpful to the jury in arriving at its verdict as to the value of the entire property.

Since we find no reversible error in the record, the judgment of the trial court is affirmed.


text:
    C. B. WATTS, Appellant, v. DOUBLE OAK INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 16508.
    Court of Civil Appeals of Texas. Fort Worth.
    March 27, 1964.
    Behcar-ing Denied April 24, 1964.
    McLemore & Street and O. M. Street, Dallas, for appellant.
    Shirley W. Peters, Denton, for appellees.
   RENFRO, Justice.

C. B. Watts brought suit on May 28, 1963, against Double Oak Independent School District and W. K. Baldridge, County Judge of Denton County, in which he alleged that an order entered by the County Judge on’ October 3, 1962, decreeing Double Oak Common School District was from that date changed to Double Oak Independent School District was void for the reason that said Common School District did not have seven hundred inhabitants residing within such district. Plaintiff prayed that the order incorporating Double Oak Independent School District be set aside and held for naught.

’ On the 18th day of September, 1962, more than twenty qualified residents of the area to be incorporated as Double Oak Independent School District filed á petition with the County Judge requesting that an incorporation election be called. On September 19 the County Judge made and entered an order, finding that all statutory requirements had been met, and set October 1 as .the date of the election. The place of ^election was fixed, a presiding judge was appointed, notices posted, and all other ■statutory requirements were complied with. .'It was also ordered that an election be held •at the same time and place for election of seven trustees, as provided by Art. 2758, Vernon’s Ann.Tex.Civ.St. The order declaring the results of the election and declaring Double Oak Independent School ¡District to be legally incorporated was entered on October 3, 1962. The vote was 87 for incorporation and 3 against.

'■ Summary judgment was entered for the School District.

Plaintiff’s points of error are:

1. The court erred in sustaining defendants’ motion for summary judgment. 2. The court erred in failing to consider the ■constitutionality of the question involved and in rendering judgment for defendants.

The record reflects that all requirements of Article 2757, V.T.C.S., were fully complied with in creating the independent school district.

The plaintiff brought suit individually. The State was not a party thereto; hence, the suit was not a quo warranto proceeding. ■ The 'order creating the District was not 'void on its face. The County Judge had jurisdiction to enter said order, and the order and all prior proceedings were apparently regular and in compliance with the statutes.

The only claim of a material fact issue raised by plaintiff in answer to the motion for summary judgment was his affidavit that the District contained less than seven hundred inhabitants.

The object of plaintiff’s suit was to invalidate the Independent School District. School districts are political subdivisions of the State, authorized and chartered by the State. Being creatures of the State they can be destroyed only by their creator. King’s Estate v. School Trustees of Willacy County, Tex.Civ.App., 33 S.W.2d 783, writ refused.

When the creation of a public corporation — municipal or quasi municipal — is authorized by statute, and a corporation has been organized under the color of such authority, its corporate existence and the validity thereof can only be determined in a quo warranto proceeding brought for that purpose in the name of the State, or by some individual under the authority of the State, who has a special interest which is affected by the existence of the corporation. City of El Paso v. Ruckman, 92 Tex. 86, 46 S.W. 25; City of Gladewater v. Pelphrey, Tex.Civ.App., 309 S.W.2d 472; Rachford v. City of Port Neches, Tex.Civ.App., 46 S.W.2d 1057; King’s Estate v. School Trustees of Willacy County, Tex.Civ.App., 33 S.W.2d 783, writ refused; 39 Tex.Jur.2d, pp. 408-10, §§ 58 and 59.

Under the pleadings in this case the plaintiff showed no right to have the court determine there were less than seven hundred inhabitants in the proposed district when the election was called. State ex rel. Burkett v. Town of Clyde, Tex.Civ.App., 18 S.W.2d 202.

In view of the above authorities it is unnecessary to pass upon the constitutionality of Article 2767h, V.T.C.S., which is an act purporting to validate the School District in question.

The judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Charlie LEE, Appellee.
    No. 7538.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 19, 1963.
    Rehearing Denied Dee. 17, 1963.
    Donald R. Hallmark, Houston, for appellant.
    James H. Campbell, Houston, for appel-lee.
   CHADICK, Chief Justice.

This is an action authorized by the Workmen’s Compensation Act, Art. 8306 et seq., to recover benefits accruing by reason of injuries sustained by a workman in the course of his employment. The judgment of the trial court is affirmed.

It is stipulated that Charlie Lee, the workman referred to herein, sustained about September 30, 1960, an injury in the course of his employment by Texas Creosoting Company, at which time he had an average weekly wage earning capacity of sixty dollars. The stipulation evidences agreement that any award recovered be paid in a lump sum, and that the workman had been paid $805.00 by Liberty Mutual Insurance Company, hereafter called insurer, subsequent to the injury at the rate of $35.00 per week, for twenty-three weeks’ total disability.

The jury found in answer to special issues (the issue is identified by its number in parenthesis), that the (2) accidental injuries the workman sustained on September 30 was a producing cause of total incapacity which began (4) the day of the accident, and (5) is permanent. Then, (5A) that total incapacity was not due solely to the loss of use of his left leg. The injury to the workman’s leg (15) resulted or will result in a total loss of the use of that bodily member, and (15) is permanent in nature. The injury sustained by the workman (22) is not confined to his left leg, and (23) the workman’s incapacity is not due solely to the loss of use of his left leg. The workman (8) had not and would hot sustain any partial disability nor (9) was the accident a producing cause of any partial disability.

The appellant compensation insurer, by numerous and sufficient points of error, •questions the existence of any evidence, and alternately, the sufficiency and the weight and preponderance of the evidence, to support the jury verdict and judgment based thereon.

The evidence leaves no doubt but that the injured workman, a 37 year old negro man with three years of schooling, suffered a severe and disabling injury to his left knee. The principal effort of the insurer’s brief is to convince this court that the great weight of the evidence establishes that only the workman’s left leg was injured, and no part of his body was incapacitated except by the injury to the left knee and loss or partial loss of the use of his left leg. The proposition is that, if the evidence shows an uncompensated incapacity, it results from injury to a specific bodily member, the left leg, and compensation for injury should be made in accordance with Article 8306, Sec. 12, for reasons explained in cases such as Texas Employers’ Insurance Association v. Espinosa, Tex., 367 S.W.2d 667 ; Coleman v. Hartford Accident and Indemnity Company, Tex.Civ.App., 297 S.W.2d 236, W/R; Texas Employers’ Ins. Ass’n., v. Brownlee, 152 Tex. 247, 256 S.W.2d 76.

. The evidence supporting the jury’s several findings underlying the judgment awarding benefits for a general injury resulting in total and permanent disability is, at best, spare and modest. Evidence of the accidental occurrence, the injury inflicted and its incapacitating effect is for the most part found in the workman’s own testimony. As reported in the official statement of facts, his answers to questions indicate a lack of facility and descriptive phraseology in the use, of language. A sympathetic jury observing the witness’s examination might make allowances for incoherences, halting speech and jumbled words, or attach unusual weight to a poorly expressed fact, and assume factual conclusions from his demeanor not borne out by the witness’s response to questions propounded, but in this review the evidence must be analyzed in its recorded form.

■ The workman with others was removing untreated, forty foot length, telephone poles from a railroad car. The ends of some five or six poles in a cable sling swung against the workman and momentarily penned him against the side of the car. The impact of the cable load was on his left knee, and as the workman described it, “mashed” his knee against the car wall. At the same time his hip, and perhaps other parts of his body, was violently shoved against the wall. An operation was performed on his knee, and altogether he was examined or treated before trial by six different medical practitioners. Testimony is very meager relative to any injury except that to the knee, or that the injuries he received to other portions of his body of whatever nature, were a producing cause of disability outside of, or in addition to that attributable to loss of use of his left leg. However, there is respectable evidence that his left arm, left side and lower back pained him following the accident, and continued to do so to such extent that he was not able to work.

It is not feasible to reproduce in detail the evidentiary record. The scope, broadly registered, makes the case understandable. With one exception the medical witnesses were of the opinion that the workman’s injury was confined to his left leg, and that his incapacity produced by injury was relatively slight. Also, with one exception, these witnesses had no recollection or record of him complaining of injury, pain or incapacity, except to his knee and leg. He insisted that he mentioned his injury and its effect on his arm, side, and back to all of the medical doctors.

The insurer strongly urges this court to exercise the extraordinary powers conferred upon it by the Constitution, as discussed in Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, and set aside the jury’s finding and reverse the judgment. The character of the evidence has been noticed. The power of this court to set aside findings that are clearly against the great weight and preponderance of the evidence should be exercised without hesitation in a proper case. However, the fact questions made by the evidence tendered in this case seem peculiarly appropriate for juxy resolurtion. As an example, the workman on cross examination pointed to a certain part of his body in showing the location of pain. The record does not disclose the area pointed out. There is evidence to sustain the jury findings, though it closely approaches the vanishing point. The record does not satisfy this court that the jury was so mistaken as to the weight and preponderance of the evidence as to warrant intervention, and respectfully declines to do so.

Appellant’s points of error have not been discussed in detail, but the comment made gives the general view taken of each; none present error and each is overruled. The judgment of the trial court is affirmed.


author: LANGDON, Justice.

text:
    NORTHWESTERN DISTRIBUTORS, INC., Appellant, v. CITY OF FORT WORTH et al., Appellees.
    No. 16502.
    Court of Civil Appeals of Texas. Fort Worth.
    March 27, 1964.
    Rehearing Denied April 24, 1964.
    Richard T. Churchill, Fort Worth, for appellant
    S. G. Johndroe, Jr., City Atty., Fort Worth, for appellees.
   LANGDON, Justice.

This is a tax suit filed May 31, 1961 by the City of Fort Worth and the Fort Worth Independent School District for the collection of delinquent ad valorem personal property taxes, penalties and interest against the defendant, Northwestern Distributors, Inc., a corporation. On June 20, 1961, inter-venors, State of Texas, Tarrant County, Tarrant County Water Control and Improvement District No. 1 and Tarrant County Hospital District filed their petition in intervention to recover taxes, penalties and interest alleged to be due each of them. The defendant filed answers to the original suit and to the petition of the intervenors on July 18, 1961 and March 18, 1963 respectively. On May 22, 1963 the original plaintiffs filed their first amended original petition to recover additional delinquent taxes, penalties and interest alleged to be due them for the years 1958 through 1962, inclusive. The case was regularly set for trial on the merits with due and proper notice to all parties at 3:00 P.M. on May-Si, 1963. The six taxing authorities each appeared, announced ready and participated in the trial. Each presented substantial, material and probative evidence sufficient to prove every fact necessary to support their respective claims. In addition to testimony the- official records of each were introduced into evidence and a prima facie case made in conformity with Art. 7328.1 et seq., Vernon’s Ann.Civ.St. of Texas. The defendant failed to appear. Judgment was accordingly entered against the defendant and it appeals, contending that-the Court erred in granting judgment against it when there is no proof or insufficient proof that it or its counsel was duly notified of the trial setting prior to the hearing and in overruling its motion for new trial based upon the same grounds. We affirm. The six separate and independent taxing authorities will be referred to as appellees and the defendant as appellant.

Neither the trial on the merits nor the motion for new trial was reported by the official court reporter, or otherwise, and was not requested nor made an issue by either party. Findings ' of fact and conclusions were filed by the court and its judgment contains considerable findings. According to such findings the appellees requested the clerk of the trial court to set the case for trial on three separate occasions, i. e., March 22, April 26, and May 31, 1963. Each request was made by letter to the clerk copy of which on each occasion- was mailed' to the appellant’s attorney of record - at his last known address. The first two settings were continued or postponed by agreement at tlie request of the appellant’s ' attorney. The first was due to a change of attorneys and the second to a conflict. The - third and finál notice of setting was mailed to appellant’s attorney at the same address as the second notice and reached his office several days before the date set for trial. According to his own admission the appellant’s attorney was in town on the day of the trial. As previously stated he did not appear in court at the time set for trial nor did he make any request for postponement or continuance of the trial. On receipt of the second notice mailed to the same address as the third notice the appellant’s attorney did not advise the court or the appel-lees of any change of address nor did he make any request that his mail be directed to him at a different address. In the absence of such notice or request on the part of the appellant’s attorney the appellees could presume that the address was a correct one.

The trial court further found that appellant’s attorney in the 'motion for new trial and at the hearing thereon did not present any meritorious defense to the claims against it. Watson v. Todd, Tex.Civ.App., 322 S.W.2d 422.

The expressed findings of the court and those implied from the nature of the judgment rendered will not be disturbed upon appeal where there is some evidence to support them even though the reviewing court might have reached a different conclusion therefrom. Associates Inv. Co. v. Thomas, 210 S.W.2d 413; Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683; Houston Fire & Casualty Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600. See 3-A Tex.Jur., § 458, p. 585.

All points of error are overruled- and the judgment of the trial court is accordingly affirmed.

Affirmed.


author: BROADDUS, Presiding Judge.

text:
    George W. LASHBROOK (Employee), Respondent, v. CLIPPER MANUFACTURING COMPANY (Employer), Liberty Mutual Insurance Company (Insurer), Appellants.
    No. 23954.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.
    A. Warren Francis, Lloyd A. Hamrick, Kansas City, for appellants.
    Richard B. Curtis, Kansas City, for respondent.
   BROADDUS, Presiding Judge.

This is a Workmen’s Compensation case. The Referee awarded claimant the sum of $1200. From that finding the employer and insurer timely filed their application for review and the Industrial Commission entered its final award denying compensation. The specific finding of fact by the Industrial Commission is as follows:

“We find from the credible evidence that the employee has failed to carry the burden of proving that he sustained an accident on or about February 25, 1961, arising out of and in the course of his employment with Clipper Manufacturing Company.”

The claimant took an appeal to the Circuit Court where a judgment was entered overruling the Commission because the facts found by the Commission did not support the award. From that judgment the employer and insurer perfected this appeal ' to this court.

The claimant testified that on Saturday, February 25, 1961, he was working' alone - in the stock room where his duties required' that he carry packages containing 20 reams of paper upstairs to the stock room. Each package was approximately two feet long, one foot wide and one foot deep and weighed approximately 100 pounds. It was claimant’s duty to move the paper from the receiving dock up one flight of stairs to the stock room. The claimant testified that he picked up a bundle of paper and just as he got it waist high his right foot slipped and the paper started dropping and as he grabbed it he put his hack in a twist and that he fell down to his knees with his hands at the top of the paper. The claimant testified that he felt pain immediately in his hack and in his lower right abdomen. There was no supervisor at work that day for the claimant to report to so he signed out and went home. After arriving home claimant’s wife called Dr. Waxman and at approximately 1 or 1:30 p. m. on Saturday, February 25, 1961, claimant met Dr. Waxman at his office at 4848 Prospect. Thereafter claimant was directed to Menorah Medical Center by Dr. Waxman and admitted as a patient on that same day. Claimant received daily heat treatments to the low back while in the hospital. He was discharged from the hospital on March 7 or 8, 1961, fitted for a brace prescribed by Dr. Waxman and continued to be treated by Dr. Waxman weekly in his office until approximately April 10, 1961. Claimant had no complaints referable to the abdomen at the time of the trial.

On cross-examination claimant identified his signature on employer and insurer’s Exhibit No. 1 and testified that he talked to an insurance man who asked him questions about the incident; that the claimant told him the truth to his best knowledge; that the insurance representative wrote down the things claimant told him and thereafter claimant read it and wrote over his signature “the statement is true to the best of my knowledge.” Claimant testified that. 12 days after the alleged accident he told the adjuster that he did not slip, trip or fall while picking up the paper.

The Menorah Medical Center records of claimant’s confinement were offered and admitted in evidence as claimant’s Exhibit B. The discharge summary sheet shows that claimant was discharged on March 5, 1961, after having been hospitalized for chief complaint of onset of left lower abdominal pain. The progress record indicates the onset of the pain was February 24, 1961.

Dr. David Waxman, the treating doctor, was produced and testified in behalf of claimant that the first complaints were referable to the left lower quadrant and left side and left back; that the major concern was the abdominal pain; that claimant was discharged from Menorah on March 5, 1961; that the doctor thereafter saw him at his office on March 7 and March 10, 1961. The doctor testified that he last saw the claimant for this condition on March 10, 1961. Dr. Waxman had no record of prescribing a back brace for the claimant.

The evidence offered in behalf of the employer and insurer touching upon the issues in this appeal, was by witnesses Charles Henry Arnspiger, claimant’s supervisor and Eugene Louie Wulf, claims adjuster for the insurer, and Dr. Paul Joseph Centner.

Mr. Arnspiger testified that the reams of paper come 10 to a carton; that the carton size is 11" x 17" x 12" and would weigh approximately 40 to 50 pounds. The claimant reported to Mr. Arnspiger on February 25, 1961, that he had injured himself the day before and had reinjured himself the morning of the 25th while lifting reams of paper but Arnspiger did not ask him specifically whether he had slipped or fallen.

Eugene Louie Wulf, called as a witness in behalf of the employer and insurer testified that he investigated the claim of George Lashbrook against the Clipper Manufacturing Company and on March 9, 1961, took a written statement from claimant. Mr. Wulf specifically asked claimant if he slipped or fell and claimant stated that he did not slip or fall Mr. Wulf testified that the claimant told him that he was lifting a carton of paper when he felt the pain and there was nothing accompanying that lifting to cause the pain; that he put into the statement (employer and insurer’s Exhibit No. 1) what was told to him by Mr. Lashbrook.

Dr. Centner testified that the first time he saw claimant was on September 24, 1960; that claimant had been referred to him by the Clipper Manufacturing Company. Dr. Centner testified that claimant’s specific complaints at that time were: “That his back was hurting for the second time in three months. He stated that while lifting a box weighing 260 pounds on September 16, he felt something pop across the small of the back. He continued working but noted pain and aching especially on lifting which stayed about the same. In that regard he reported that three months previously he had an aching begin in the same area without any particular incident but while doing lifting work. At that time he had been seen by a physician who advised a brace which was not obtained.”

The law is well settled that on review of questions of fact decided by the Industrial Commission, our inquiry, as is that of the Circuit Court, is limited to whether or not the findings of the Commission are supported by substantial evidence upon the whole record. The reviewing court may not substitute its own judgment on the evidence for that of the administrative tribunal. Jones v. Purity Textiles Corporation, Mo.App., 328 S.W.2d 714; Love v. Land, Mo.App., 356 S.W.2d 105. And the appellate court must review the evidence in a light most favorable to the prevailing party. Smith v. Cascade Laundry Co., Mo.App., 335 S.W.2d 501.

As said in the case of Noto v. Hemp & Co., 231 Mo.App. 982, 83 S.W.2d 136, 139:

“The commission, as a fact finding body, might well discredit the testimony of the claimant on the ground that it lacked corroboration. In other words, it was the province of the commission to believe or not to believe the testimony, and, if the commission did not believe the claimant as to the essential facts, they necessarily could base their award of no compensation upon such finding that he had failed to meet the burden resting upon him of proving that the rupture was the result of an accident arising out of and in the course of his employment.”

The Commission’s finding on credibility of the evidence is not arbitrary but based upon substantial testimony on the record as a whole. Not only was there a conflict between the claimant’s testimony at the time of the trial and the written statement given by him shortly after the occurrence concerning whether he sustained an accident but there were many other conflicts in the evidence from which the Commission could reasonably make its finding denying compensation because claimant failed to prove by credible evidence that he sustained an accident.

One such conflict involved the location of the initial injury. The claimant testified that the initial injury was to his back and that his right groin also hurt but that he had no injury to the left abdomen. Claimant’s Exhibit B, the hospital records on the claimant’s confinement, indicated that the initial and primary complaint was referable to the left inguinal and left testicle region and the first complaint of back pain was on the second day of hospitalization. Dr. Waxman testified that the initial primary complaints were referable to the left lower quadrant and left side rather than the right side.

Another sharp conflict in' the evidence is whether claimant had sustained a.prior injury to his back for which he had received treatment. The claimant testified that he had not been treated by Dr. Cent-ner for prior back trouble and when called in rebuttal, testified that he had no knowledge or recollection of having been treated by Dr. Centner nor the incident which might have caused him to seek Dr. Cent-ner’s services. Dr. Centner, called as a witness in behalf of fhe employer and insurer, testified that he first saw the claimant on September' 24, 1960, for a back complaint which was the second occurrence within a three month period and that he was in the office three days later for additional treatment to his low back.

From our consideration of the transcript we conclude that the judgment of the Circuit Court should be reversed and the cause remanded with directions to enter a judgment affirming the award of the Industrial Commission. It is so ordered.

All concur.


author: PALMORE, Judge.

text:
    Joseph L. ARNOLD et al., Appellants, v. William H. MITCHELL, Appellee. FAYETTE ENTERPRISES, INC., et al., Appellants, v. William H. MITCHELL, Appellee.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.
    KeliGaring Denied May 8, 1964.
    John W. Morgan, Allen Duncan, Duncan & Arnold, Lexington, Robert M. Odear, Stoll, Keenon & Park, Lexington, for ap^ pellants. •
    Harry B. Miller, Miller, Griffin, Marks & Stephens, Lexington, for appellee.
   PALMORE, Judge.

Over a period of more than 6 years beginning in the latter part of 1952 William H. Mitchell, Joseph L. Arnold and G. Frank Vaughan, Jr., were closely associated in several Fayette County real estate development ventures. Cardinal Hill Development Corporation is a corporation formed by them in that connection. Fayette Enterprises, Inc., is another corporation subsequently formed by Arnold alone. In 1959 there was a falling out, especially between Mitchell and Arnold, after which Mitchell filed two suits, one against Arnold, Vaughan and Cardinal Hill Development Corporation and the other against Arnold, Vaughan and Fayette Enterprises. The actions were consolidated and referred to the Master Commissioner of the Fayette Circuit Court, whose eventual findings and conclusions regarding the various claims and counterclaims were approved and became the basis of the final judgment. Each of the defendants appeals, and Mitchell cross-appeals, from one phase or another of the judgment as will be explained in the course of this opinion.

Cardinal Hill Subdivision

In 1952 Vaughan owned a 22-acre tract of land which he desired to subdivide and sell. He engaged Mitchell, an experienced real estate man, to assist him in the establishment and development of the subdivision and to sell the lots. At the inception and during the early stages of the venture there was no firm agreement as to the amount of Mitchell’s compensation. His services entailed much more than the mere selling of lots already subdivided and ready for sale, and he wanted more than the standard 5% commission. Vaughan, on the other hand, was opposed (at least in the beginning) to a flat percentage, preferring some other type of incentive arrangement. While the understanding between the two men was in this uncertain state several lots were sold or contracted for sale,' and Vaughan learned that unless some different plan of development and sale were effected the Internal Revenue Service would treat his profits as ordinary income rather than capital gains. After investigating this problem Arnold, Vaughan’s attorney, advised the formation of a corporation and an interim agreement of association to cover the sales consummated or in progress prior to completion of the incorporation. Such an agreement, drafted by Arnold, was signed by the three men as of September 15, 1952. It provided for a sale of the property by Vaughan to the corporation when organized and for the performance of various services by Arnold and by Mitchell, and it included the following recitations and terms which are relevant to the present dispute:

“ * * * and whereas, the parties hereto contemplate forming a corporation to purchase said land in its entirety and subdivide same into individual lots for the purpose of re-sale; and whereas, the parties hereto are desirous of associating themselves together as an association for the immediate planning and developing of the area for the purpose of sub-dividing same pending the organization of said corporation heretofore referred to; * * *
“2. The party of the third part, William _H. Mitchell, does hereby agree to devote his time and talents as a real estate broker and developer to the development and subdividing of said area for the purpose of selling said lots, either during the tenure of this contract and agreement or after the corporation above referred to has been or-ganised. The party of the third part agrees that he will devote his time and effort toward creating and making a subdivision possible and will be paid only a flat sum of five percent (5%) of the gross value for each lot sold by either the corporation or this association. It is further understood and agreed that after said corporation has been formed and the land sold that an additional three percent (3%) of the total gross sale price will be paid to the party of the third part for his services rendered to the association and/or corporation. * *
“3. * * * It is understood and agreed that all parties hereto will own stock in the corporation proposed to be formed; and that in addition to any dividends that might be paid to party of the second part [Arnold] and to any salary that might be paid to him as an officer of the corporation, that he will be paid a reasonable attorney’s fee for the services rendered to this association and/or corporation to be formed. It is further understood and agreed that no fees will be paid to the party of the second part either by this association or the corporation to be formed until after all of the land proposed to be bought has been sub-divided and sold and all expenses incurred therein have been paid.
“It is understood and agreed by and between the parties hereto that this contract of association shall become null and void and have no force and effect whatever after the Cardinal Hill Development Corporation has been organized and perfected pursuant to the laws and regulations of the Commonwealth of Kentucky.
“It is further understood and agreed by and between the parties hereto that any and all services performed by the parties during the tenure of this contract and any and all liabilities incurred concerning the purchase, development or sale of the real estate in question shall inure to the benefit of the corporation and/or detriment to the corporation when formed; that the corporation when formed will be fully responsible for any liabilities incurred and shall be the sole owner of all assets received by this association or either of the parties hereto; it being the specific intent and purpose of all the parties to this contract that all services performed shall he performed for the benefit of the corporation.” (Emphasis added.)

According to Arnold’s testimony, upon submission of this contract to the federal tax authorities Vaughan was permitted to treat his profits on the sale of the land as long-term capital gains, except for the first 4 or 5 lots that had been sold.

Cardinal Hill Development Corporation issued 80 shares of its capital stock, SO to Vaughan, 20 to Arnold, and 10 to Mitchell. For their shares, Arnold and Mitchell gave the corporation their individual promissory notes in the respective amounts of $2,000 and $1,000. Though payable on demand, it was the tacit understanding that these notes would be satisfied out of Arnold’s and Mitchell’s distributable shares of the undivided profits upon eventual dissolution of the corporation.

It is conceded that Mitchell was not paid the 3% mentioned in the contract, and in his action against Arnold, Vaughan and Cardinal Hill Development Corporation he was awarded judgment for it against the corporation. This phase of our opinion is directed to the appeal from that decision.

The defense theory is that the parties never intended to be bound by the interim agreement of association, that it was prepared and executed for the sole purpose of securing an income tax advantage for Vaughan, and that Mitchell’s interest in the corporation was all he was supposed to receive over and above the 5% sales commissions. (In this regard, the tax authorities had advised that if the association included a real estate broker, then in order for Vaughan to qualify for capital gains treatment it would be necessary that the real estate member’s interest be something in excess of the regular broker’s commission.) Mitchell denied that the written agreement was not intended to reflect the real agreement. The Master Commissioner’s report in Mitchell’s favor was in effect a finding of fact on this issue, and as it was supported by substantial evidence we cannot say it was clearly erroneous.

We do not believe the issuance of 10 shares of stock to Mitchell for a promissory note that admittedly would have been un-collectable at the time indicates that the stock was intended in lieu of the 3% additional commission. If the parties had any faith in the enterprise, and clearly they did, there was no question that the note could and would be paid at the time it was actually expected to be paid. Mitchell paid for his stock at exactly the same rate as Arnold did. Moreover, that the agreement provided for both the 3% commission and the issuance of some amount of stock to Mitchell enfeebles the theory that the stock was to be substituted for the extra commission.

It is vigorously contended, however, that in view of the provision that the contract “shall become null and void and have no force and effect whatever” upon formation of the corporation the 3% agreement became a nullity by the express terms of the instrument. We do not agree. The contract must be construed as a whole. It repeatedly mentions services to be performed and relationships to exist after the incorporation. Care was taken, for example, to negate any doubt that Arnold was to be paid fees for his legal services in addition to any dividends and salary that might be paid him. It is not suggested that this discreet and altogether wholesome provision became a nullity, and obviously it was not so intended. When read in relation to the paragraph immediately following it, we think the evident purpose of the “null and void” clause was simply to end the association and transfer both its assets and obligations, as a business entity, to the corporation. We concur in the conclusion that the 3% provision continued to apply after the incorporation.

Mount Vernon Subdivision

In 1955 Arnold purchased a tract which became Mt. Vernon Subdivision. He had formed a corporation, Fayette Enterprises, Inc., for that purpose, and it had been intended that he and Vaughan would be equal shareholders. Vaughan, however, had become involved in other commitments and problems which prevented his joining the enterprise, so Arnold was the sole stockholder and chief officer. The property was taken .in the corporate name. Arnold employed Mitchell to assist in the development and sale of the subdivision. One day while he was in Arnold’s office Mitchell suggested that they ought to have the terms of this employment in writing. Arnold responded by dictating a letter from Mitchell to Fayette Enterprises, which Mitchell thereupon signed and Arnold, as president of the corporation, received. Here are the pertinent contents of that letter:

“It is my understanding that I will do every thing in my power to aid this development in every way including the selling of the one hundred forty-one lots, more or less, for a price equal to twenty (20%) percent of the net profits after the costs of the land and development have been paid.
“I realize that we have a definite understanding concerning my part of this development, but I am giving you this letter in order that you may have something for your file.”

Arnold and Fayette Enterprises contend that in arriving at the net figure to which Mitchell’s 20% is to be applied the corporation is entitled to charge -the corporation’s income taxes and Arnold’s $18,000 per annum salary as president. The Master Commissioner concluded that the taxes were a proper charge but that the salary was not. Both sides appeal.

The letter constitutes the agreement. It was composed by Arnold himself, an able attorney. There is no latent ambiguity requiring extrinsic evidence to unveil its meaning. Neither is it ambiguous on its face. We understand what the term “net profit” is usually taken to mean, but with all due respect to Webster’s definition, Webster does not undertake to define the expression, “net profits after the costs of the land and development have been paid.” If it means “net profits,” no more and no less, the clause “after the costs of the land and development have been paid” has no meaning. Why, then, was this clause added? We think the answer is unavoidable. Its purpose was to qualify the term “net profits,” and that purpose can be achieved only if “costs of the land and development” are construed to mean direct costs, as distinct from such indirect charges as administration, selling expenses, and income taxes.

It is our conclusion that the disallowance of the salary as a proper charge was correct and the charging of income taxes was incorrect.

Cardinal Valley Subdivision

In 1957 Fayette Enterprises purchased a tract which became Cardinal Valley Subdivision. Mitchell was given an exclusive agency to sell the lots. His commission was to be 3% of the gross sales. This agreement was oral, hence subject to the statute of frauds, KRS 371.010(8), which was interposed as a defense against his claim on the express contract. However, his complaint stated an alternative claim on quantum meruit for the equivalent of 5%. The statutory defense against the express contract was sustained, but a recovery of 2% of the gross sales was adjudged on quasi-contract. The only objection to this solution raised on appeal is Mitchell’s contention that he should have received at least 3% instead of 2%, since Fayette Enterprises had, by way of an attempted estoppel against his quasi-contract claim for 5% alleged and admitted the oral 3% agreement.

The recovery having been allowed on quasi-contract, and there being no contention that it should have been based on the express contract, we do not follow the argument that the express agreement fixes the value of the services for purposes of the implied agreement. It was brought out in the testimony that 5% is the ordinary commission for a non-exclusive agency to sell real estate and that 3% is the going rate for an exclusive agency in a new subdivision. There was a sharp conflict in the evidence as to whether Mitchell or Arnold was the moving force in the sale of 15 of the 18 lots. We think the Master Commissioner’s solution in allowing Mitchell 2% on all of the lots was reasonable and certainly not a clearly erroneous determination of the value of his services. He could just as well have been awarded 5% on three of the lots and nothing on the others.

The judgment in Civil Action 8350 is affirmed. The judgment in Civil Action 8349 is affirmed on the direct appeal and reversed in part on the cross-appeal of the appellee Mitchell with directions that the amount of recovery awarded him against Fayette Enterprises, Inc., be revised in accordance with this opinion.

BIRD J., not sitting.

      . See Johnson v. Dalton, Ky., 318 S.W.2d 415 (1958).

      . The IRS, of course, was never informed it was not the true arrangement.

      . Though it is not a factor essential to the decision of this question, Mitchell had no knowledge of the salary.