author: DIXON, Chief Justice.

text:
      Vaughan WOOD, d/b/a Village Carpets, Appellant, v. Robert W. BARNES, Jr., et al., Appellees.
    No. 16964.
    Court of Civil Appeals of Texas. Dallas.
    July 28, 1967.
    Rehearing Denied Oct. 6, 1967.

      John L. Burke, Jr., Dallas, for appellant.
    Harold E. Wood, Chancellor & Wood, Dallas, for appellees.
   DIXON, Chief Justice.

Appellant Vaughan Wood, doing business as Village Carpets, brought two suits to foreclose mechanic’s and materialmen’s liens on two separate pieces of property.

One suit was against R. Wayne Patty, Robert Barnes, Jr. and wife, Jeanette Barnes and Mortgage & Trust, Inc.

The other suit was brought against R. Wayne Patty, Everett C. Morgan and wife, Olive M. Morgan, and Dallas Teachers Credit Union.

R. Wayne Patty, developer and builder, owned two lots on each of which he himself as builder constructed a residence. In September 1964 and October 1964 respectively appellant Wood furnished labor and material to Patty, the owner, in the construction of the houses. Patty sold one house to the Barnes, the other to the Morgans. Mortgage & Trust, Inc. and Dallas Teachers Credit Union loaned money to the purchasers and each held a mortgage to secure payment.

Though he made an affidavit that all bills were paid the truth was that Patty, at the time he sold the houses to the Barnes and the Morgans, still owed Wood $461.91 principal on one house and $1,368.03 on the other.

Well within the 120-day period prescribed by statute, Art. 5453, Sec. 1, Vernon’s Ann. Civ.St., but subsequent to the sale of the properties by Patty to the Barnes and Morgans, Wood filed affidavits pursuant to Articles 5453 and 5455, V.A.C.S. to fix and secure his liens. He sent two copies to Patty, the original owner, as required by statute. At the same time he also sent copies to the Barnes and the Morgans, purchasers from Patty. It is not contended that the purchasers received actual notice of Wood’s claim prior to the time they bought the properties, or prior to the time they received actual notice from Wood.

The two suits filed by appellant were consolidated. All parties except Patty filed motions for summary judgment. The motions of appellees were sustained. Those of appellant were overruled. Appellant Wood was granted judgment against Patty for $2,520.59, but was denied foreclosure of his mechanic’s and materialmen’s liens against the properties sold by Patty to the Barnes and Morgans. Appellant has appealed only from that part of the judgment denying foreclosure.

In his first four points of error appellant asserts in substance that having fully complied with Articles 5453 and 5455, V.A.C.S., he is entitled to judgment foreclosing his liens.

Appellees in their brief present only one ground in support of the court’s refusal to foreclose appellant’s liens. They do not deny that appellant fully complied with Articles 5453 and 5455, V.A.C.S., but they say that he did not comply with Articles 6626 and 6627, V.A.C.S., in that he did not also have his affidavits acknowledged as well as sworn to before a notary public.

Article 6626 provides that certain named instruments which shall have been acknowledged are authorized to be recorded. Mechanic’s and materialmen’s liens are not among the instruments specifically named, but the statute includes the general statement, “ * * * or other instruments of writing concerning any lands * * Article 6627 provides that all conveyances of land and mortgages on land shall be void as to all creditors and subsequent purchasers unless they be acknowledged and filed with the clerk. Neither of the above statutes expressly refers to mechanic’s and material-men’s liens.

Appellees contend that since appellant’s affidavits were not acknowledged they were not legally filed with the County Clerk, hence did not give constructive notice to ap-pellees of appellant’s claimed liens. It is their position that they are innocent purchasers without notice and for that reason the court properly denied foreclosure of appellant’s alleged liens. We do not agree with appellees.

Art. 5453, V.A.C.S. is explicit, detailed and unambiguous. It sets out very clearly the manner in which a mechanic’s and ma-terialmen’s lien shall be secured and fixed. It requires the execution and filing of an affidavit * * *, to be recorded in a book kept by the county clerk for that purpose * * It further directs that “The county clerk shall index and cross-index such affidavit * * (Emphasis ours.) It does not prescribe the execution and filing of an acknowledged instrument. Article 5455 is equally explicit. It prescribes and outlines the form and substance of the affidavit. It does not require an acknowledgment.

Art. 5460, V.A.C.S., which provides the manner of fixing a lien against a homestead, does require a written contract which must be acknowledged by the wife. It seems to us that by requiring an acknowledgment in the case of a homestead but omitting such requirement in regard to property not a homestead the Legislature intended that an acknowledgment was not to be required in the latter instance.

If we were to interpret Articles 6626 and 6627, V.A.C.S. to mean that an affidavit for a mechanic’s and materialmen’s lien must be acknowledged as well as sworn to in order to be valid, as appellees contend, then we would be impelled to hold that the above named statutes not being specific or detailed but being general in character as to mechanic’s and materialmen’s liens (“ * * * other instruments of writing concerning land * * * ”) are in conflict with Articles 5453 and 5455, V.A.C.S. And in case of conflict the latter statutes, being special and detailed statutes relating particularly to mechanic’s and materialmen’s liens, are to prevail over the general statutes. It will be noted too that Articles 6626 and 6627, V.A.C.S. are in different titles of the statutes and deal with different subjects than Articles 5453 and 5455, V.A.C.S. A mechanic’s lien is a creature of the Constitution and the statutes. Handy v. Holman et al., 281 S.W.2d 356 (Tex.Civ.App., Galveston 1955, no writ); Culver v. Miears, 220 S.W.2d 200 (Tex.Civ.App., Eastland 1949, writ ref’d); Real Estate-Land Title & Trust Co. v. Dildy, 92 S.W.2d 318, 323 (Tex.Civ.App., Austin 1936, writ ref’d); Larkin et al. v. Pruett Lbr. Co., 209 S.W. 443 (Tex.Civ.App., El Paso 1919, no writ); Houston v. Myers, 88 Tex. 126, 30 S.W. 912 (1895).

It is undisputed that appellant complied in all ways with Articles 5453 and 5455, V.A.C.S. Appellant’s affidavits were filed within 120 days. The Barnes and Morgans having purchased the property before the expiration of the 120-day period must take constructive notice of appellant’s existing right to file his affidavits. Marks v. Calcasieu Lbr. Co., 245 S.W.2d 749 (Tex.Civ.App., Austin 1952, writ ref’d n. r. e.); Tomlinson v. Higginbotham Bros. & Co. et al., 229 S.W.2d 920 (Tex.Civ.App., Eastland 1950, no writ); Keating Imp. & Mach. Co. v. Marshall Elec. Light & Power Co., 74 Tex. 605, 12 S.W. 489 (1889). The liens, being properly fixed, relate back to the inception of the contract between appellant and Patty. Lubbock Nat’l Bank v. Hinkle, 397 S.W.2d 285 (Tex.Civ.App., Amarillo 1965, writ ref’d n. r. e.); Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652, 30 L.R.A. 765 (1895). We sustain appellant’s first four points.

In his fifth point appellant says that he has constitutional mechanic’s and materialmen’s liens under Art. 16, Sec. 37 of the Constitution of Texas, Vernon’s Ann.St., as between the owner and the contractor a constitutional lien is self-executing and is not dependent on compliance with statutes. Continental Radio Co., Inc. v. Continental Bank & Trust Co., 369 S.W.2d 359 (Tex.Civ.App., Houston 1963, writ ref’d n. r. e.); Pierce v. Mays, 277 S.W.2d 155 (Tex.Civ.App., Amarillo 1954, affirmed in part and reversed in part 154 Tex. 487, 281 S.W.2d 79); Warner Elevator Mfg. Co. v. Maverick, 88 Tex. 489, 30 S.W. 437, 31 S.W. 353, 499 (1895). But for the contractor to be protected against the rights of third parties he must either comply with the statute in regard to affidavits for fixing mechanic’s and ma-terialmen’s liens, thus giving constructive notice to third parties; Newman v. Coker, 310 S.W.2d 354 (Tex.Civ.App., Amarillo 1958, no writ); Black, Sivalls & Bryson v. Operators’ Oil & Gas Co., 37 S.W.2d 313 (Tex.Civ.App., Eastland 1931, no writ); De Bruin v. Santo Domingo Land & Irr. Co., 194 S.W. 654 (Tex.Civ.App., San Antonio 1917, writ ref’d); Kinsey v. Spurlin, 102 S.W. 122 (Tex.Civ.App.1907, no writ); or he must give actual notice to third parties within the time prescribed by statute. Stone v. Pitts, 389 S.W.2d 601 (Tex.Civ.App., Waco 1965, no writ); O’Ferral v. Coolidge, 225 S.W.2d 582 (Tex.Civ.App., Texarkana 1950, affirmed 149 Tex. 61, 228 S.W.2d 146); Neblett v. Slosson, 223 S.W.2d 938 (Tex.Civ.App., Galveston 1949, writ ref’d n. r. e.); Farmers Mut. Royalty Syndicate v. Isaacks, 138 S.W.2d 228 (Tex.Civ.App., Amarillo 1940, no writ); Hampshire v. Greeves, 130 S.W. 665 (Tex.Civ.App.1910, affirmed 104 Tex. 620, 143 S.W. 147 (1912)). It is undisputed that in this case appellant complied with Articles 5453 and 5455, V.A.C.S., and he also gave actual notice to the Barnes and the Morgans within the time prescribed in Article 5453. We sustain appellant’s fifth point.

Appellant’s sixth and seventh points have to do with matters which apparently are no longer in the case, so in the interest of brevity we shall not pass on them.

Since we are of the opinion that appellees’ motions for summary judgment should have been overruled and appellant’s motions should have been sustained we have concluded that we should reverse the trial court’s judgment and render judgment herein. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).

The judgment is reversed and judgment is here rendered foreclosing appellant’s mechanic’s and materialmen’s liens against the properties described in the petitions and the motions for summary judgment.

Reversed and rendered.

ON REHEARING

In our original opinion we reversed the trial court’s judgment and rendered judgment foreclosing appellant’s mechanic’s and materialmen’s liens, including the sum of $450 as attorney’s fees. Appellees in their motion for rehearing take issue in general with our judgment holding appellant’s liens valid and ordering foreclosure in any amount, but in particular they contend that it was error to include attorney’s fees in the judgment of foreclosure.

We agree with appellees. The amount of an attorney’s fee may not be included in a judgment of foreclosure of a mechanic’s lien unless the parties have entered into a written agreement so providing, or unless there is statute providing for a lien to secure payment of an attorney’s fee. 57 C.J.S. Mechanics’ Liens § 353, pp. 1037-1038.

Appellant cites Art. 2226, Vernon’s Ann.Civ.St., as statutory authority for the allowance of an attorney’s fee for labor done or material furnished. The cited statute does, indeed, make provision for the allowance of a personal judgment for attorney’s fee, but it does not provide for a lien to secure payment. And we know of no statutory authority which does provide for such a lien under the circumstances here presented to us.

Appellant also cites us to the case of Lipscomb v. Adamson Lumber Co., 217 S.W. 228, 230-231 (Tex.Civ.App., Dallas 1919, no writ). However, in that case there was a written contract providing for a mechanic’s lien to include an amount for attorney’s fee. Since the property in question was not a homestead the court held that there was no objection to including the amount of the attorney’s fee in the foreclosure.

There are other cases not involving a homestead in which a foreclosure judgment was held to be proper though it included the amount of an attorney’s fee; but in every instance, so far as we have been able to determine, there was a written mechanic’s lien contract which provided for attorney’s fee. West End Town Co. v. Grigg et al., 93 Tex. 451, 56 S.W. 49 (1900); Summerville v. King, 98 Tex. 332, 83 S.W. 680, 682 (1904); White et ux. v. Dozier Const. Co., 70 S.W.2d 240, 242 (Tex.Civ.App., Austin 1934, no writ); Kleiner v. Eubank, 358 S.W.2d 902, 906 (Tex.Civ.App., Austin 1962, writ ref’d n. r. e.); Zorola v. Bishop & Son, 401 S.W.2d 713, 716 (Tex.Civ.App., San Antonio 1966, writ ref’d n. r. e.). We have not been cited to a case and we know of none which holds that foreclosure of an affidavit mechanic’s lien may include an allowance for an attorney’s fee.

We have not found a Texas case exactly in point, but we believe our view finds some support in the following: Hennemuth v. Weatherford, 278 S.W.2d 271, 273 (Tex.Civ.App., Waco 1955, writ ref’d n. r. e.); Galbraith-Foxworth Lumber Co. v. Long, 5 S.W.2d 162, 166 (Tex.Civ.App., Dallas 1928, writ ref’d); Breckenridge City Club v. Hardin, 253 S.W. 873, 876 (Tex.Civ.App., Fort Worth 1923, no writ); D. June 6 Co. v. Doke, 35 Tex.Civ.App. 240, 80 S. W. 402, 406 (San Antonio 1904, writ ref’d); 38 Tex.Jur.2d 667.

For another reason the judgment for attorney’s fee cannot be allowed to stand. We find no evidence in the record in the form of affidavits or otherwise that $450 is a reasonable amount as attorney’s fee. In the absence of such evidence the court is not authorized to make a fact finding as to the amount to be allowed as a fee. Great American Reserve Ins. Co. v. Britton, 406 S.W.2d 901, 907 (Tex.Sup., 1966).

The motion for rehearing will be overruled to the extent that the judgment of the trial court is reversed and rendered foreclosing a mechanic’s lien for $461.91 principal for material and labor furnished plus 6 per cent interest per annum from December 1, 1964 on the real property sold by Patty to Robert W. Barnes, Jr. and wife, Jeanette R. Barnes, as described in plaintiff’s petition; and reversed and rendered foreclosing the mechanic’s lien for $1,368.-03 plus interest from December 3, 1964 at the rate of 6 per cent per annum on the real property sold by Patty to Everett C. Morgan and wife, Olive M. Morgan, as described in plaintiff’s petition.

The motion for rehearing will be sustained to the extent that the judgment for foreclosure will include only the above named amounts and will not include a judgment for attorney’s fee.

The personal judgment against Patty will be affirmed.

Reversed and rendered in part and affirmed in part.

       The material parts of the two statutes are as follows:
      “Art. 6453. [5622-3] Securing lien “The lien provided for in Article 5452 may be fixed and secured in the following manner:
      “1. Every original contractor, not later than one hundred twenty (120) days, * * * after the indebtedness accrues as defined hereinafter in Article 5467, shall file his affidavit claiming a lien, to be recorded in a book kept by the county clerk for that purpose in the office of the county clerk of the county in which such property is located * * * an(j he shall send to the owner by certified or registered mail, addressed to his last known business or residence address, two (2) copies of such affidavit claiming a lien. The county clerk shall index and cross-index such affidavit in the names of the claimant, the original contractor and the owner. So long as the claim for a lien has been filed with the county clerk, failure of the county clerk to comply with these instructions shall not invalidate the lien.” (Emphasis ours.)
      “Art. 5455 [5624] [3297] Form of claim
      “An affidavit claiming a lien filed for record by any one claiming the benefit of this Act shall be signed by the claimant or by some person on his behalf and shall contain in substance the following:
      “a. A sworn statement of his claim, including the amount thereof. A copy of the written agreement or contract, if any, may be attached at the option of the claimant.
      “b. The name of the owner or reputed owner, if known.
      “c. A general statement of the kind of work done or materials furnished by him, or both. * * *
      “d. The name of the person * * * to whom he furnished the materials or labor, and the name of the original contractor.
      “e. A description of the property sought to be charged with the lien legally sufficient for identificatioft.”

       The authorities are in agreement that under the Constitution of Texas, Art. 16, Sections 37 and 50, a mechanic’s lien against a homestead does not secure and cannot include that part of the judgment allowing attorney’s fee even if the written mechanic’s lien contract so provides. This is made clear in those cases which allow foreclosure of a written contractual mechanic’s lien including an attorney’s fee against property not a homestead. See also Stricklin v. Southwestern Reserve Life Ins. Co., 234 S.W.2d 439, 443 (Tex.Civ.App., Texarkana 1950, writ ref’d); Anderson v. Hirsch et al., 112 S.W.2d 535, 541-542 (Tex.Civ.App., Amarillo 1937, writ ref’d); Mathews et ux. v. Texas Building & Loan Ass’n, 48 S.W. 744 (Tex.Civ.App., 1899, writ ref’d). However, that question is not before us in this ease as it is undisputed that at the time the labor was performed and the material furnished the properties involved were not homesteads.


source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    PHOENIX INSURANCE COMPANY, Appellant, v. Jack THOMAS, Appellee.
    No. 6868.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1967.
    Rehearing Denied Nov. 15, 1967.

      Orgain, Bell & Tucker, Beaumont, for appellant.
    Joe H. Tonahill, Jasper, for appellee.
   PARKER, Justice.

This is a Workmen’s Compensation case. Plaintiff, Jack Thomas, recovered a judgment against the defendant, Phoenix Insurance Company, for $8,365.84, interest and costs. The case was submitted to the jury upon special issues wherein the jury found plaintiff sustained an accidental injury in the course and scope of his employment, resulting in permanent partial incapacity, which caused a $30 per week difference between plaintiff’s average weekly wage before the injury and his average weekly wage earning capacity after the injury. The parties will be designated as in the trial court.

It was stipulated plaintiff’s average weekly wage prior to injury was $80.00. In answer to special issue No. 7 the jury found that the plaintiff sustained partial incapacity as a natural result of the accidental injury. In answer to special issue 3A the jury found plaintiff sustained “any incapacity” as a natural result of the accident. Special issue No. 10 was submitted and answered as follows:

“If you have answered the foregoing Special Issue No. 7 ‘Yes’, then answer the following special issue:
“SPECIAL ISSUE NO. 10
“What do you find from a preponderance of the evidence to be the difference, if any, between the plaintiff’s average weekly wage before the injury, if any, and the average weekly wage earning capacity, if any, after the injury during the existence of such partial incapacity?
“Answer in dollars and cents, if any.
“Answer: $30.00
“In answering the foregoing issue, you will consider only the difference, if any, between the plaintiff’s average weekly wage before the injury, if any, and the average weekly wage earning capacity, if any, after the injury during the existence of such partial incapacity, if any, inquired about in Special Issue No. 7.”

The judgment of the court recites:

“and the jury having found in answer to Special Issue No. 10 that the plaintiff’s average weekly wage earning capacity after the injury and during the existence of the partial incapacity was Thirty ($30.00) Dollars per week, which weekly rate as provided in the Workmen’s Compensation Law of Texas permits the plaintiff to recover of and from the defendant Thirty ($30.00) Dollars per week for 300 weeks from February 11, 1965; and, of which amount of Workmen’s Compensation benefits allowed the plaintiff when reduced to a lump sum as stipulated and agreed by and between the parties in chambers is computed whereby as of January 22, 1966 the amount of One Thousand Four Hundred Ninety-Seven and 37/100 ($1,497.37) Dollars for accrued compensation benefits and four per cent (4%) compound interest thereon is due and owing, followed by 251 weeks unaccrued compensation benefits at Thirty ($30.00) Dollars per week due and owing, when reduced to a lump sum discounted at four per cent (4%) compound interest amounts to Six Thousand Eight Hundred Sixty-Seven and 57/100 ($6,-867.57) Dollars unaccrued lump sum benefits due and owing the plaintiff; making the total present value of the Workmen’s Compensation benefits due and owing the plaintiff as found by the jury as of January 22, 1966, the sum of Eight Thousand Three Hundred Sixty-Five and 84/100 ($8,365.84) Dollars presently due and owing the plaintiff by the defendant;” (Emphasis added)

In its first point of error defendant contends there is no finding of reduced wage earning capacity by the answer of the jury to special issue No. 10; that the plaintiff was entitled at the most to 60% of any diminished wage earning capacity for 300 weeks and not the entire $30.00 per week. These contentions are sustained. The jury did not find that the plaintiff’s average weekly wage earning capacity after the injury was $30.00 per week, but found that the difference between the average weekly wage before the injury and the average weekly wage earning capacity after the injury was $30.00 per week. At the most, plaintiff was entitled to recover only 60% of $30.00 a week for 300 weeks. Art. 8306, Sec. 11, Vernon’s Ann.Civ.St.; Travelers Ins. Co. v. Dycus, 163 Tex. 152, 352 S.W.2d 458 (1962).

Defendant contends the jury in answering special issue No. 10 could find a difference in average weekly wage prior to injury and the average weekly wage earning capacity after injury which would be upward and not downward. The plaintiff testified that following the injury of February 11, 1965 he lost one day only from work, found a new, better job, passed a physical examination and made $106.00 a week, which he left only because he had to go into service. Defendant’s point of error No. 1 is sustained.

Defendant, in its point of error No. 2, contends the trial court erred in overruling its objections to special issue No. 10, one of the objections being it did not properly submit the question of plaintiff’s partial incapacity.' The proper manner to submit this is to be found in Employers’ Reinsurance Corp. v. Holland, 162 Tex. 394, 347 S.W.2d 605 (1961); Indemnity Ins. Co. of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830 (1961); Texas Employers’ Ins. Ass’n v. Jones, 281 S.W.2d 98 (Tex.Civ.App.1955, n.w.h.). There being probative evidence that plaintiff’s average weekly earning capacity after the injury was more than $80 a week, the issue was not properly submitted. With evidence of increased average weekly earning capacity after the injury, no judgment could be based on the answer of the jury to special issue No. 10. Point of error No. 2 is sustained.

Special issue No. 7 is as follows:

“Do you find from a preponderance of the evidence that the plaintiff, Jack Thomas, sustained any partial incapacity as a natural result of the accidental injury, if any, inquired about in Special Issue No. 3?
“Answer ‘Yes’ or ‘No’.
“Answer: Yes”

Defendant’s third point of error is:

“The trial court erred in submitting Special Issue No. 7 over defendant’s objections thereto, since the issue was erroneous on the following grounds:
“(a) Duplicitous and multifarious in asking:
(1) Whether plaintiff suffered any incapacity;
(2) Which was partial; and
(3) Which naturally resulted from the injury of February 11, 1965.”

In the court’s charge the jury was instructed :

“that by the term ‘natural result’, as used in this Charge, is meant that result produced by an injury, if any, or injuries, if any, by itself or by themselves or in connection with another cause or other causes in the usual course of events, in a natural and continuous sequence, and which result would not have occurred but for such injury, if any, or injuries, if any.”

In answer to special issues numbered below the jury found as indicated:

1. Plaintiff sustained an injury to his body on or about February 11, 1965.
2. Such injury was accidental.
3. Such injury was received by plaintiff in the course of his employment.
3A. Plaintiff did sustain “any incapacity” as a natural result of the accident of February 11, 1965.
3B. The incapacity was not temporary.
3C. Such incapacity was not total.
3D. Was not answered because of the “no” answer to 3C.
4. Plaintiff did not sustain total incapacity as a natural result of the accidental injury.
5. and 6. were not answered.

By virtue of the definition of “natural result” producing cause was submitted in 3A. Plaintiff’s objections to No. 7, when considered in connection with the definition of “natural result” and the findings of the jury in response to special issues 1, 2, 3, 3A, 3B, 3C and 4, are not objectionable as assuming such partial incapacity naturally resulted from the injury. Russell v. Great American Indemnity Co., 127 Tex. 458, 94 S.W.2d 409 (1936). It is unlikely that the jurors were confused by special issue No. 7 or led to believe that the trial court was of the opinion that Jack Thomas suffered any incapacity which was partial, which naturally resulted from his injury of February 11, 1965. Reasonably, it is not considered to be a comment upon the weight of the evidence. Meyer v. Great American Indemnity Co., 154 Tex. 408, 279 S.W.2d 575 (1955). On page 578 of such opinion, the court said:

“This court has held in several types of cases that various subsidiary facts or elements constitute, and are properly submitted in a single ultimate issue. See Howell v. Howell, 147 Tex. 14, 210 S.W.2d 978.”

We do not consider the opinion in American General Ins. Co. v. Coleman, 297 S.W.2d 333 (Tex.Civ.App.1956, wr. ref. n. r. e.), is applicable to the instant case. In such case special issue No. 1, the sole issue to the jury, was objected to as being multifarious and submitted more than one ultimate issue of fact. That is not true in the instant case. Defendant’s third point of error is overruled.

Special issue No. 9 and the jury’s answer is as follows:

“For what period of time, if any, do you find from a preponderance of the evidence that such partial incapacity, if any you have found, has continued or will continue from the date of its beginning, if any?
“Answer ‘Permanent,’ or answer by stating the number of weeks, if any, or answer ‘None.’
“Answer: ‘Permanent’.”

Defendant’s fourth point of error contends the issue as submitted required defendant to produce a preponderance of the evidence in order for the jury to answer “none”; and the court erroneously placed the burden of proof on defendant; and further, the issue was duplicitous and, in effect, was a comment upon the weight and sufficiency of the evidence by the trial court. Appellant’s fourth point of error is without merit and is overruled.

During the closing argument to the jury by plaintiff’s attorney, defendant objected to statements and arguments thereon made by plaintiff’s attorney. Such objections were overruled. As each objection was overruled and immediately after plaintiff’s attorney’s closing argument, defendant moved for mistrial. Each of such motions for mistrial were denied. Then, defendant moved the court to re-open the case and permit the reading of defendant’s Exhibit No. 8 to the jury. This was refused. In the ensuing paragraphs, the parts of the record germane to the errors in such closing argument are set forth.

This suit was filed August 16, 1965. The first term thereafter was January 1966. At the first call of the docket on December 21, 1965 plaintiff’s attorney requested that the case be set for the week of January 17, 1966. It was so set and was number 15 on the docket at that time for the week. On January 14, 1966 defendant filed motion for continuance, not for the term, hut only for a re-setting for the week of January 31st or the week of February 14, 1966 for the reason that defendant’s counsel had a case of his assigned as No. 1 in the 60th District Court of Jefferson County, Texas, for Monday, January 17, 1966 which had been on file since 1961. Defendant’s motion for continuance or re-setting in the Jasper County case was resisted by plaintiff, mainly upon the ground that:

“plaintiff is on assignment to Korea for active duty in the period of a few days and may have to report sometime during the week of January 14th, 1966 for transportation to Korea in the service of his country. It would, therefore, be to his great detriment to continue this case and would be a denial of justice.”

Defendant’s motion for continuance was overruled on January 17, 1966. On January 17, 1966 defendant’s counsel, Howell Cobb, was in trial in the Jefferson County case. Defendant filed a motion for continuance based upon such fact, not seeking a continuance for the term but for a re-setting of the case for either of the two remaining jury weeks in the District Court of Jasper County, Texas, or, because of his knowledge of the fact that the plaintiff was going overseas, requested the trial court to inquire about the time plaintiff had to go overseas to the end that plaintiff obtain a trial of his case when he could be present and Cobb present also. This motion was in the form of a telegram which the court received before 9:00 a.m. on Tuesday, January 18, 1966. Plainly, the trial court was trying to get a trial of the case before plaintiff went overseas and at the same time allow Mr. Cobb to try the case. A jury was selected by an associate of Mr. Cobb’s on the 18th with the court delaying presentation of the evidence until Friday, January 21, 1966. By that time, Mr. Cobb had been released from the Jefferson County case and was present. The case was argued and presented to the jury on Saturday, January 22, 1966. Defendant’s Exhibit No. 8 is as follows:

“Beaumont, Texas Jan. 17, 1966. Judge O’Neal Bacon, Positively has be did by 9 A.M.
Jasper County Courthouse Jasper Tex. Re Number 7424 — Jack Thomas vs Phoenix Insurance Co. District Court Jasper County. Please accept this telegram as renewal of my motion for continuance, or, alternatively motion to postpone captioned cause until I am no longer in trial here in Beaumont. I do not request continuance for term, but merely until trial I am presently engaged in is submitted to jury.
I am in trial in 60th District Court in Cause number B78398 which was filed November 21, 1961 and after numerous settings On June 17, 1965 the Court set it for January 17, 1966. Thomas vs. Phoenix was filed August 16, 1965, and on December 21, 1965, set for January 17, 1966, its first setting.
Call of docket in 60th Court was January 7, 1966, and B78398 was number one, and I was assigned to trial in B78398 in Jefferson County on such date for January 17, 1966.
Civil action number 4830, U S District Court, Beaumont, was set number one for January 17, 1966 by Judge Joe Fisher during week of Jan 3,1966.
No. 7424, Thomas v. Phoenix, Jasper County District Court was number 15, and jury was to be selected January 17, 1966. I informed the Court of conflicts and previous settings, and requested continuance, not for term, but until January 31, or February 14, 1966. Motion was overruled and Court ordered me to ‘send someone’ to select jury in Number 7424 by 1 p.m. January 17, 1966, such order being made by telephone.
Although Phoenix Insurance Co., defendant, has designated me personally, and not my law firm as its counsel, I arranged for my partner to select a jury. I am told by you that case will be tried Tuesday January 18, 1966. I am in trial in B78398, 60th District Court Jefferson County, Beaumont, I have no authority to appoint substitute counsel at this first setting of number 7424.
Urgently request and petition Your Honor to delay trial until I am out of trial in Beaumont.
I am informed by you that plaintiff, suing for total permanent disability, must report for overseas duty this week. I do not know if this is correct, and request and suggest the Court to determine this, since plaintiff has been drafted into the army since the alleged accident of February 11, 1965, and is considered by the United States Army fit for combat duty.
Thomas vs. Phoenix, Number 7424, can and will be tried by me when I finish case I am now in.
This is, in effect, first motion, and I desperately need the Court’s aid to protect defendant’s right to a fair hearing, which include its right to representation by counsel of its choice.
Please, Judge Bacon, withhold further action in this case until I am out of trial. I will promptly come to Jasper for trial. Please, if you deem it necessary, check with Judge Joe Fisher and Judge Gordon Gary concerning these matters.
If you proceed to trial in my absence, please have Court Reporter report all testimony, ruling of Court, and other pertinent matters, since I have what I consider to be valid defenses to this suit. Respectfully — Howell Cobb Attorney for Defendant, Phoenix Insurance Co.”

Plaintiff Thomas testified he was inducted in the service, passing a physical examination in Houston several months after his injury of February 11, 1965. He was a cannoneer in a replacement company but not on limited duty. He was going to Korea and probably as a replacement to Viet Nam.

On Saturday, January 22, 1966 in his closing argument, plaintiff’s counsel’s statements, the objections and motions for mistrial are hereinafter set forth:

“Plaintiff’s counsel argued:
“Now, speaking of duty, what kind of duty does a lawyer have to a jury? A lawyer has the duty to a jury to be forthright — forthright in all respects. It wasn’t the issue of Mr. Cobb being in Beaumont this week in another court. You heard the evidence and it’s in the record here that when he took this man’s deposition December 10, he asked him, ‘You’re going to go overseas?’ ‘Yes, I’m going about February 1.’ And Mr. Cobb didn’t want to try this case this week, he wanted to try it February 14 when the man was in Viet Nam. Now he said that’s not in issue about him being drafted and going overseas. It’s a big issue, because this insurance company, through their typical defense, insurance corporation lawyers, who has come here and distorted facts-—
BY MR. COBB: Your Honor, I’m going to object to him bringing in personalities and accusing me of personal things, and I demand that I be allowed to reply to that. I don’t think he should accuse me of being unfair with the Court, typical defense tactics, dealing in personalities.
BY THE COURT: The objection will be overruled, the request will be denied.
BY MR. TONAHILL: Wanting this man—
BY MR. COBB: May I approach the bench ?
BY THE COURT: Yes, sir, counsel, approach the bench. (Following out of the hearing of the jury).
BY MR. COBB: Due to that prejudicial argument I move for a mistrial.
BY THE COURT: Motion will he denied.”
“Plaintiff’s attorney continued:
“Wanting this man to face trial when he couldn’t be here, but he’s here and having his day in court.”
“And:
“Mr. Cobb, in typical defense lawyer techniques says, T don’t believe he’s disabled. I don’t believe he got hurt, I don’t believe he sustained an injury, but if he’s disabled it isn’t permanent, it’s only partial.’ He says he didn’t get hurt but if he did get hurt it’s partial. His whole argument is partial as opposed to mine being total and permanent. But he says he didn’t get hurt and if he did, it’s partial. Now, isn’t that typical ? Isn’t that what you’d expect of a man that doesn’t want this case tried until February 14 when this boy is over in Viet Nam? Isn’t that typical distortion ? Misrepresentation ?
BY MR. COBB: I object again to those things, Your Honor, I object to it and ask the jury to disregard it.
BY THE COURT: The objection will be overruled.
BY MR. COBB: I renew my motion.
BY THE COURT: Motion denied. Continue counsel.
BY MR. TONAHILL: Therefore it has become highly relevant about his being drafted. That’s what — that makes it relevant, his going overseas and couldn’t be here when he wants the case tried on February 14, and that’s what the record shows.”

Then, after plaintiff’s attorney’s argument, the following occurred:

“BY MR. COBB: Your Honor, we would move the Court to allow the evidence to be re-opened so that we could introduce what is now marked as Defendant’s Exhibit No. 8, a telegram, which I believe you did receive on Tuesday morning.
BY THE COURT: Yes, sir. It was read, and the telegram was read to the Court shortly before nine o’clock A.M.
BY MR. COBB: From the telegraph office?
BY THE COURT: The record will reflect the telegram itself was delivered on Wednesday.
BY MR. COBB: But the substance of it or the entire thing was read to you at 8:50 a.m.?
BY THE COURT: Yes, sir, and read to the reporter and taken down in shorthand by the reporter at 9:15 a.m. on Tuesday of this week.
BY MR. COBB: We offer in connection with Mr. Tonahill’s repeated reference concerning the dishonest and manipulative efforts of the defense counsel because it plainly states I wanted to just wait the rest of this week and if you do proceed to go to trial without me to just make a record, and Mr. Tonahill knowingly and falsely stated that I requested and wanted this case, as late as Tuesday of this week or as late as yesterday of this week, put off until February 14, when that telegram reflects to the contrary and he was aware of it and the Court was. In connection with his remarks there, I renew my motion for mistrial.
BY THE COURT: Both motions will be denied. Anything further, gentlemen ?”

The closing argument of plaintiff’s attorney was so inflammatory, prejudicial and improper that each and all of defendant’s points of error relating to such closing argument are sustained. It was an appeal to the natural prejudice of the jury against Cobb and his client by accusing them of wanting to deprive the plaintiff of a trial before he went overseas. Further, the argument accused defendant and defendant’s counsel of deceit, fraud and dishonesty, based upon motions for continuance not in evidence but known to plaintiff’s counsel and the court as not fairly reflecting desire on the part of Cobb or his client to deprive plaintiff of a trial of his case with him present before he went overseas. Such argument was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Under Rules 434 and 503, Texas Rules of Civil Procedure, and Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953), defendant’s points of error on the closing argument are sustained.

The judgment of the trial court is reversed and remanded.


author: KLINGEMAN, Justice.

text:
    ASGROW SEED COMPANY, Appellant, v. J. R. GULICK et al., Appellees.
    No. 14601.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 13, 1967.

      James V. Graves, San Antonio, Wilbur S. Legg, Chicago, Ill., for appellant.
    Petry & Fitzpatrick, Carrizo Springs, James N. Martin, San Antonio, for appel-lees.
   KLINGEMAN, Justice.

This suit was instituted by appellant, Asgrow Seed Company, (plaintiff and cross-defendant in the trial court) against J. R. Gulick and Roy Gulick (defendants and cross-plaintiffs in the trial court) for the purchase price of six pounds of okra seed, 900 pounds of Double T hybrid sorghum seed, and 5,400 pounds of AMAK R-12 hybrid sorghum seed, together with interest and attorney’s fees. Appellees answered such suit by a general denial and counterclaim, averring that the AMAK R-12 seed was purchased upon an oral contract, and it was warranted and represented to be hybrid sorghum AMAK R-12 seed, fit and proper to be sown, and in all respects first-class and true to name, and would outproduce all other grain on the market, producing approximately 7,000 pounds per acre; that said seed was planted on 767 acres of land, and when the grain grown from that seed began maturing, appellees discovered that it was not of the hybrid sorghum AMAK R-12 variety as purchased and warranted, but was other varieties, having white heads, small immature seeds, and/or loose non-compact ragged heads, and that by reason thereof appellees obtained only about 1600 pounds of grain per acre, whereas they should have obtained approximately 7,000 pounds per acre, to their damage in the sum of $71,238.96. Appellant denied that such seed was purchased upon an oral contract, and alleged that it was purchased simultaneously with the okra and Double T sorghum seed, pursuant to a written contract, which written contract contained certain limited warranty provisions, and further that if ap-pellees suffered any diminished yield in the crop it was proximately caused by their own negligence and factors other than those complained of by appellees.

Trial was to a jury with five special issues being submitted, in response to which the jury found: (1) That the 5400 pounds of seed delivered to appellees was not 99% pure hybrid sorghum AMAK R-12 seed. (2) That appellees would have obtained additional grain if such seed had been 99% pure AMAK R-12 seed. (3) That the total value of such additional grain would have been $42,740.55. (4) That appellees should have known, by reason of their previous purchases of seed from appellant, that appellant limited its liability in accordance with the terms and conditions set forth in its shipping instructions, invoices, and on the seed containers. (5) That the sum of $450.00 would be a reasonable attorney’s fee for the filing and prosecution of appellant’s suit against appellees.

Appellant moved for judgment based upon the verdict, and in the alternative to disregard the jury’s answers to Questions 1, 2 and 3, and for judgment upon the answers to Questions 4 and 5. Appellees moved to disregard the jury’s answers to Questions 4 and 5, and for judgment based upon the jury’s answers to the first three special issues. The trial court denied appellant’s motion for judgment, granted appellees’ motion, and entered judgment for appellees in the sum of $42,740.55, against which the court applied as an offset the sum of $1,354.-75, being the purchase price of the three varieties of seed, and interest to date of judgment.

Although appellant presents twenty-six points of error, the principal issues to be determined on appeal are: (1) Are the warranty limitations provided for in the shipping instructions, invoices, and on the seed containers binding on the grower? (2) Does the jury’s finding to Question No. 1 render appellant liable for appellees’ crop loss and, if so, is there any probative evidence to support such finding? (3) Did the trial court err in refusing to render judgment for appellant on the jury’s finding to Question No. 4? (4) Did the trial court err in refusing to submit to the jury appellant’s requested special issues presenting certain defenses it had pleaded and raised by the evidence, and in submitting Question No. 3 in the form submitted, over appellant’s objection? (5) Did the trial court err in disregarding the jury’s answer to Question No. 5 concerning attorney’s fees?

Appellant contends that by virtue of the jury’s answer to Question No. 4 it is entitled to a take-nothing judgment on the cross-action of appellees, and presents two points of error in this regard: (1) “The trial court erred in failing to render judgment for cross-defendant on the jury’s affirmative finding to Question No. 4, which reads as follows, ‘Do you find from a preponderance of the evidence that the Gulicks, at the time of purchasing the 5400 pounds of seed in question, should have known by reason of their previous purchases of seed from Asgrow that Asgrow limited its liability in accordance with the terms and conditions set forth in its shipping instructions, invoices, and on the seed containers ?’, because such finding, under the pleadings and evidence, constituted a complete defense to cross-plaintiffs’ counterclaim.” (2) “The trial court erred in granting cross-plaintiffs’ motion for judgment, because under the pleadings, evidence and findings of the jury cross-plaintiffs were bound by the terms and conditions of the limited warranty set forth in the shipping instructions, invoice and on the seed containers.”

The shipping instructions, invoice, and seed containers contain the identical limited liability provision. The shipping instructions and invoice contain further provisions for limitation of warranty. Appellant contends that the purchase of seed was made upon a written contract which included such limited warranty and liability provisions. Appelleees assert that there were no pleadings to support the submission of Special Issue No. 4 to the jury; that there was no evidence to support the jury’s finding to such special issue; that the contract of purchase was an oral contract, and that such oral contract did not embrace or include the limited liability and warranty provisions above referred to; and that such oral contract was established as a matter of law.

While appellant’s original petition is somewhat ambiguous, such petition specifically refers to the shipping instructions, and copies thereof are attached to the petition and made a part thereof for all purposes. The shipping instructions contain such warranty limitations, and the petition alleges that appellees entered into such shipping instructions and are bound by the provisions thereof. Appellant’s first amended answer to appellees’ counterclaim specifically alleges a written contract between appellant and appellees and sets forth the terms and provisions of said warranty limitation. We find, from an examination of appellant’s pleadings and exhibits attached thereto, that its suit was based upon a written contract. Such attached exhibits (shipping instructions) supply any deficiency in the allegations of appellant’s petition. Rule 59, Texas Rules of Civil Procedure; 13 Tex.Jur.2d Contracts § 370 (1960).

The record discloses that appellees went to appellant’s place of business in San Antonio, Texas, on March 9, 1964, at which time they purchased 6 pounds of okra seed, 900 pounds of Double T seed (another variety of grain sorghum seed), and 5400 pounds of AMAK R-12 seed, for a purchase price of $1,202.70, which consideration was deferred. The shipping instructions (order) for the okra seed and Double T seed, which contained the limitation of warranty and liability provisions hereinbefore set forth, was dated March 9, 1964, and was signed by J. R. Gulick. The shipping instructions for the AMAK R-12 seed, containing the same limitation of warranty and liability provisions, was dated March 10, 1964, and was signed by Mrs. J. R. Gulick. An invoice dated March 14, 1964, covering all the seed purchased was mailed and delivered to J. R. Gulick, together with a note for the purchase price of the seed and a letter pertaining thereto. This invoice contained the same limitation of warranty and liability provisions as the shipping instructions, and described and priced all the seed purchased. In lieu of the note, a trade acceptance, payable on August 1, 1964, which incorporated the invoice, was signed by J. R. Gulick on May 20, 1964. All of the seed involved in this suit were delivered in sealed bags, and on each of such bags was printed the warranty limitations set forth in Footnote 1.

Appellant contends that the two shipping instructions, the invoice, and the trade acceptance, being essential parts of the transaction, together form the contract, even though some bear different dates and were executed at different times and some were unsigned. In support of its contention, appellant relies on Board of Ins. Commissioners v. Great Southern Life Ins. Co., 239 S.W.2d 803 (Tex.Sup.1951); Pacific Mutual Life Ins. Co. v. Westglen Park, Inc., 160 Tex. 1, 325 S.W.2d 113 (1959); and Carpenter v. Southern Properties, 299 S.W. 440 (Tex.Civ.App.-Dallas 1927, writ ref’d). The Supreme Court in Board of Insurance Commissioners v. Great Southern Life Ins. Co., supra, stated: “It is a generally accepted rule of contracts that ‘Where several instruments, executed contemporaneously or at different times, pertain to the same transaction, they will be read together although they do not expressly refer to each other.’ 17 C.J.S., Contracts, § 298, p. 714.” See also 17A C.J.S. Contracts § 298. In Hurlbut v. Lyons, 405 S.W.2d 398, (Tex.Civ.App.-El Paso 1966, writ dism’d) a venue action, certain delivery tickets were signed but did not specify any place of payment. They were subsequently supplemented by unsigned invoices providing for a place of payment. The Court in holding that the unsigned invoices were a part of the written contract stated: “Although these invoices were not signed, we believe that they were an integral part of the transaction, and this for several reasons. First, they related to and followed the delivery tickets and set forth the amount appellee maintained that appellant owed for the use of this equipment. The delivery tickets by themselves merely set forth that the equipment was delivered. The invoices set forth the charges and as such, we believe were legally inseparable from and inter-dependent on the delivery tickets. Therefore, although the invoices were not signed, they were a part of the transaction, and when issued to and received and accepted by the appellant, became merged with the signed delivery tickets.” See also Newman v. Texas Farm Products Company, 346 S.W.2d 151 (Tex.Civ.App.-Beaumont, no writ).

Appellees strongly urge that the seed was purchased under an oral contract through appellant’s agent, and that the limited liability and warranty provisions contained in the shipping instructions, invoice, and seed containers form no part of such oral contract and could have no effect upon it. In support of such contention they rely chiefly on the cases of Sugarland Industries, Inc. v. Falco, 360 S.W.2d 806, writ ref’d n.r.e; and Longino v. Thompson (Tex.Civ.App.), 209 S.W. 202, writ ref’d.

In Sugarland Industries. Inc. v. Falco certain seed were sold to Falco, and the warranty limitation provision was contained on the tags attached to the bags of seed delivered. The Court held that the record was without dispute that the sale was made by Marshall, an agent for Sugarland, on an oral contract that Marshall made with plaintiff, to the effect that the seed had a germination rate of 80%, and that the contract was made when the parties made this oral agreement; that there was no evidence that Marshall advised the plaintiff at such time that the tags attached to the seed containers would contain a no warranty clause, and that under this fact situation the no warranty clause printed on the tags was no part of the contract between the parties.

Longino v. Thompson, supra, was a suit by a grower for crop damages arising out of failure to furnish seed of the variety ordered. Such seed was ordered by telephone, and the grower contended that the seed company represented the seed to be June Pink tomato seed and that on the basis of such representation he purchased such seed; and when the seed were delivered they were accompanied by printed representations to the effect that they were June Pink tomato seed, when in actuality they were not. The seed company contended that one of its regular billheads accompanied the shipment, on which bill-head there was contained a no-warranty clause, and that said no-warranty clause was part of the contract. The grower denied having read the notice on the bills. The Court sustained an instructed verdict of the trial court for the seed company on the basis that the plaintiff had not furnished any basis for establishing his damages, but in their opinion, the Court of Civil Appeals stated, that the instructed verdict could not be sustained on the theory that the evidence conclusively shows that the sale of seed was made upon an implied agreement that no warranty should result therefrom, and stated: “The contracts did not consist of a mail order, and the shipment of the seed accompanied by a notice of nonwarranty, and request to return the seed if unwilling to purchase on such terms, but were made over the telephone, and to say the least the notice on the bills could not affect such contract, unless it came to the notice of appellant prior to the planting of the seed.” The Court by its language indicates that even on an oral contract, if the grower had notice of the nonwarranty prior to the planting of the seed that it would be binding on him.

Appellees assert that there were no pleadings to support the submission of Question No. 4 to the jury, and no evidence to support the jury’s answer to such question. Appellant contends that, having specifically plead the limitation of warranty and liability provisions, it was entitled to show any means by which the appellees did or should have acquired knowledge of the limited liability provisions, and further contend that it specifically plead that the limitations of warranty should have been known to appellees by reason of the custom of the trade. There was testimony by appellees themselves that they had previously purchased AMAK R-12 seed from appellant over a period of years, which testimony was substantiated by an employee of appellant, and there was testimony that the same limitation of warranty and liability had been on the shipping instructions and invoices delivered to appellees on the previous purchases. There also was testimony that placing the limited warranty provisions on the shipping instructions, invoices and bags is a custom in the seed industry, and that said custom is well known to the farmers.

A valid usage or custom concerning the subject matter of a contract, knowledge of which may be imputed to the parties, is, according to a general rule, incorporated into the contract by implication. 58 Tex.Jur.2d, Usages and Customs, § 13 (1964) ; Dwyer v. City of Brenham, 70 Tex. 30, 7 S.W. 598 (1888). The jury’s answer to Special Issue No. 4 is sufficiently supported by the pleadings and the evidence.

We believe the case of Pyle v. Eastern Seed Co., 145 Tex. 385, 198 S.W.2d 562 (1946), is controlling on our decision in the case before us. In Pyle, the purchaser brought suit against the seller alleging that he ordered a certain variety of onion seed, that the seed delivered was not the variety ordered, and that by virtue thereof he suffered a loss in the value of his crop. The jury found: (1) That seller represented the seed to be babosa onion seed. (2) That the buyer relied on such representation. (3) That the seed sold was not ba-bosa onion seed. (4) That if the seed had been as represented the buyer would have raised a crop of babosa onions, and such crop would have had a market value of $5,200. (5) That the buyer did not have notice of the contents of the non-warranty clause printed in the body of the purchase agreement before the seed was planted. (6) That the buyer did not have notice of the contents of the non-warranty clause printed on each of the sacks of onion seed before planting. The order sheet contained the following non-warranty provisions: “Eastern Seed Co. gives no warranty, express or implied, as to description, purity, productivity, or any other matter of any seed we may send out, and we will not be in any way responsible for the crop.” The Supreme Court held that parties who sign and thereby enter into a written contract are bound by its provisions, and where the contract of sale of babosa onion seeds expressly states that said seed were not warranted as to description, purity, or productivity, and the nonwarranty clause was also printed on the sacks in which the seed were delivered, proof that the seed delivered were of a different variety other than that contracted for did not entitle the buyer to recover for breach of warranty or fraud.

Dutch Mill Gardens v. J. J. Grullemans & Sons, N.V. of Lisse, Holland, 238 S.W.2d 232 (Tex.Civ.App.-Galveston, 1951, writ ref’d), was a suit brought by the seller for the purchase price of certain bulbs. Buyer defended on the grounds that the bulbs were worthless and did not produce. The written order upon which the bulbs were delivered contained a nonwarranty clause to the effect that “No warranty is given for the results of planting, forcing, or flowering of any bulbs and roots.” The Court in upholding a judgment for the seller stated that the only evidence before the Court “on such claimed issue of whether or not the bulbs would sprout, or were useless, was the express subject of the written-contract between the parties, by which the appellee (seller) * * * was plainly relieved of responsibility for the precise results such evidence alone tended to prove;” and that the rule barring the buyer is set forth in Pyle v. Eastern Seed Co., supra.

Hall v. Mosteller, 245 S.W.2d 338, (Tex.Civ.App.-Austin 1952, writ ref’d n.r.e.), was a suit by a melon grower seeking to recover the market value of a watermelon crop. The invoice which was for 50 pounds of Black Diamond Watermelon Seed, had written across the face thereof “Guaranteed to be Black Diamond,” in pen, and contained a printed non-warranty clause as follows: “The CAPITOL SEED HOUSE gives no warranty, expressed or implied, as to description, quality, productiveness, or any other matter of any seeds, bulbs, plants it sells, and will not be responsible for the crop. If the goods are not accepted on these terms they are to be returned immediately.” Such invoice, which was introduced in evidence and is reproduced in the opinion of the Court of Civil Appeals, does not appear to have the signature of the purchaser thereon, so far as we can ascertain. The buyer contended that the seeds shipped were not Black Diamond Watermelon Seeds, and did not produce a crop of Black Diamond watermelons, which would have been worth $13,550, but produced a crop of varied and assorted pie melons of no value. The Court in its opinion refers to such invoice as the written contract between the parties, and denied any recovery for the grower, holding that the penned provision on the invoice did not supersede the printed non-warranty provisions, and stating that the case of Pyle v. Eastern Seed Co., supra, was controlling in the case; and that buyer’s contention that seller was “liable for consequential damages is not sustainable because the only measure of damages, other than for recovery of the cost of the seed, would of necessity be the value of the crop, liability for which appellee (seller) had contracted against.”

In view of the jury’s affirmative answer to Special Issue No. 4, it is our opinion that appellant’s points of error Nos. 12 and 13 should be sustained, and that the trial court erred in failing to render judgment for appellant as to appellees’ counterclaim, and was in error in granting appellees’ motion for judgment.

The judgment of the trial court in favor of appellees on their counterclaim for crop loss is reversed. In its judgment, the trial court applied as an offset to said award to appellees the amount of the purchase price of the three varieties of seed purchased, said amount being adjudicated to appellant. Since appellant relies upon a written contract containing a limitation of warranty, limiting its liability to the amount of the purchase price of the seed, under the jury’s finding it is not entitled to recover for the purchase price of the AMAK R-12 seed. Appellant is entitled to recover for the purchase price of the okra seed and the Double T sorghum seed, which aggregates $176.70, and which has not been paid, and judgment is here rendered for appellant in this sum, with interest at the rate of six per cent per annum from March 14, 1964, to date. Because of the absence of sufficient proof of the reasonableness of attorney’s fees for such recovery, attorney’s fees are disallowed.

      . “Asgrow warrants that the seeds, bulbs and plants it sells will be, at the time of delivery, as described on the container within recognized tolerances. Asgrow gives no other or further warranty, express or implied. Asgrow limits its liability on the foregoing warranty and its liability by reason of any other cause whatsoever to the amount of the purchase price of such seeds, bulbs and plants.”

      . “Neither Asgrow, the manufacturer, processor, jobber nor seller hereof, makes any representations or warranties express or implied with respect to results from use or handling of this material whether or not used in accordance with directions. The buyer assumes all risks incident to the use of this material.”


author: SELLERS, Justice.

text:
    INVESTORS SYNDICATE CREDIT CORPORATION, Appellant, v. Emzie ATES et ux., Appellees.
    No. 304.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 19, 1967.
    Lawrence & Lawrence, F. Lee Lawrence, Tyler, for appellant.
    Weldon Holcomb and Jack Norwood, Tyler, for appellees.
   SELLERS, Justice.

The appellees brought this suit to cancel a certain instrument designated mechanic’s lien contract and deed of trust covering certain property alleged to belong to appellees.

The petition alleges a number of grounds for the cancellation of said instrument; however, this appeal involves only one question, and that is, the sufficiency of the description of the land contained in the instrument to meet the statute of frauds in this State. The contract provided: “This CONTRACT made and entered into by and between EMZIE ATES and his wife, LEE DORA ATES of SMITH County, Texas, hereinafter called OWNERS, * * * upon the following described tract, lot or parcel of land belonging to Owners: BEING: 1.58 ACRES OF THE B. S. WATTS SURVEY, ABSTRACT 1048, SMITH COUNTY, TEXAS. * * * ”

The appellees filed a motion in the trial court for summary judgment on the theory that the description of the land in the instrument was not sufficient to locate the land on the ground and was, for that reason, void insofar as placing a lien against the appellees’ property. The trial court, after hearing, sustained the motion and entered judgment cancelling the instrument for lack of a valid description of the property.

Appellees admitted on the hearing that they owned a 1.58 acre tract of land in the B. S. Watts Survey in Smith County, Texas, at the time the instrument was executed and that it was all the land they owned in the survey and that they did not own any other land in Smith County or the State of Texas.

The trial court’s decision is absolutely correct if the description of the land: “BEING: 1.58 ACRES OF THE B. S. WATTS SURVEY, ABSTRACT 1048,' SMITH COUNTY, TEXAS” is looked to alone. However, it is appellant’s contention that the provision in the description, “upon the following described tract, lot or parcel of land belonging to Owners” is sufficient to authorize parol evidence to locate the land which can easily be done with appel-lees’ admissions. The word “owners” contained in the above phrase refers to appel-lees. This was made so by the first sentence in the contract where it is said “hereinafter called owners”. Therefore the word “owners” as used as a part of the description should be the same as if it said “belongs to Emzie Ates and his wife, Lee Dora Ates.” The decision then really depends upon the meaning of the words “belongs to owners” or “belonging to.” The phrase “belongs to” has been many times before the courts and the case that seems more nearly in point here is the case of Wells et al. v. Ward, Tex.Civ.App., 207 S.W.2d 698. It was used in connection with the ownership of property and the court held:

“ * * * In addition, in our opinion the words ‘belonged to’ as used in the court’s charge are synonymous with or mean the same as ‘to be the property of.’ They connote title or ownership. * * * ”

Applying this definition to our case, we have the phrase “belonging to owners” meaning that it is the property of Emzie Ates and wife, Lee Dora Ates. Giving the instrument this meaning, it follows in our opinion that a key is found in the instrument itself which will authorize parol evidence to locate the land, and this is easy when you take the admissions of appellees. This holding, we think, is supported by the decision of the Supreme Court in the case of Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222, where it is held:

“The settled rule in this state is that such a description, by reason of the use in the memorandum or contract of such words as ‘my property’, ‘my land’, or ‘owned by me’, is sufficient when it is shown by extrinsic evidence that the party to be charged and who has signed the contract or memorandum owns a tract and only one tract of land answering the description in the memorandum, (citing cases.) The stated ownership of the property is in itself a matter of description which leads to the certain identification of the property and brings the description within the terms of the rale that ‘the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty.’ (Emphasis added.) (citing cases).”

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


author: CLAUDE WILLIAMS, Justice.

text:
    Clyde V. DRIGGS, Appellant, v. CITY OF DENISON, Appellee.
    No. 16979.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 27, 1967.

      Jack Kennedy, Sherman, for appellant.
    Robert L. Doss, Charles O. Smyre, City Attys., Denison, for appellee.
   CLAUDE WILLIAMS, Justice.

Pursuant to an admittedly valid ordinance of the City of Denison, Clyde V. Driggs filed his application for districting, in proper form, with the City Council of the City of Denison in which he sought a permit to conduct the business of off-premises sale of wine and beer at 613 North Austin Street. The area in which the property in question was located had been previously zoned as retail territory under the General Zoning Ordinance of the City of Denison and the sale of wine and beer in such area was perfectly legal. However, under Alcoholic Beverages Ordinance of Denison the City Council was empowered to district and grant permits for the sale of such beverages in the area.

Driggs’ application was denied by unanimous vote of the City Council. He filed suit in the district court in which he prayed that the court enter its order approving his application based upon his allegations that the City Council had acted arbitrarily and capriciously in refusing to grant him the relief sought. The City filed its motion for summary judgment to which were attached supporting affidavits of the mayor and two of the city councilmen. Also attached to the motion were copies of the minutes of the City Council relating to the hearing of Driggs’ application. The mayor and city councilmen related in their affidavits that after careful and thoughtful deliberation, and with a view towards the promotion of the public safety, health, prosperity, convenience, morals and general welfare of the city, they exercised the discretion confided in them by the charter of the City of Deni-son and voted to deny the districting of Driggs’ property.

Driggs filed his first amended original petition wherein, for the first time, he prayed for the issuance of a writ of mandamus against the City of Denison ordering and directing it to grant Driggs the permit sought by his petition for districting, and also praying for monetary damages sustained by him as a result of the denial of his application. Driggs also filed his affidavit and that of his first attorney, Joe M. Joiner, both being in opposition to the motion for summary judgment filed by the City.

The trial court sustained the City’s application for summary judgment and rendered judgment that Driggs take nothing by his action.

In five points of error appellant contends that the trial court erred in granting summary judgment against him for the reason that the pleadings and affidavits before the court demonstrated the existence of at least one issuable fact which should have been submitted to a jury, such fact being that the City Council had acted arbitrarily, capriciously and unreasonably in denying his application. After careful consideration of all appellant’s points in the light of the record here presented we find no merit in any of them and affirm the judgment of the trial court. In doing so we have carefully adhered to the rules relating to review of summary judgment cases which were clearly enunciated by our Supreme Court in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup.1965).

Appellee City, by the filing of its motion for summary judgment, assumed the negative burden of showing the nonexistence of issuable facts, or that, as a matter of law, appellant Driggs had no cause of action against the City. By the filing of its motion, supported by appropriate affidavits of the mayor and city councilmen, the City did assume its burden in this regard. The City Council of the City of Denison, a home-rule city, acting as a legislative body, is vested with broad discretion in deciding questions dealing with the public safety, health, morals and general welfare. Inherent in this rule of law is the right of cities to regulate occupations and businesses within the limits of such cities. The right of every person to pursue any lawful business, occupation or profession is not an absolute right but is subject to the paramount right, inherent in the governing body as a part of its police power, to impose whatever reasonable restrictions and regulations the protection of the public may require. 40 Tex.Jur.2d, Municipal Corporations, § 341. Thus the municipality may impose reasonable restrictions on the manner in which the business is conducted, and also place limitations on the time and place it is to be carried on. City of Austin v. Austin City Cemetery Ass’n, 87 Tex. 330, 28 S.W. 528 (1894); 40 Tex.Jur.2d, § 342; Lombardo v. City of Dallas, 47 S.W.2d 495 (Tex.Civ.App., Dallas 1932).

It has long been the law in this state that if an officer or governing board acting under powers granted by law exercises discretion in the discharge of their duties, mandamus will not lie to control such exercise of discretion. The only exception to this rule is that a mandamus will lie to correct a gross abuse of discretion upon the part of boards or officers entrusted with such discretion, when such abuse is so clearly shown as to establish the fact that in performing the act complained of the officers acted wholly through fraud, caprice, or by a purely arbitrary decision, and without reason. King v. Guerra, 1 S.W.2d 373, 376 (Tex.Civ.App., San Antonio 1927, writ ref’d). In the King case the court said that in cases involving the exercise of discretion on the part of city councils the burden of defending the exercise of discretion is not upon the city government but “the extraordinary burden rests upon appellee to show that no conclusive, or even controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to exercise the discretion confided to it by a valid ordinance in determining a matter of purely governmental policy.” See also Arberry v. Beavers, 6 Tex. 457, 55 Am.Decisions 791; Riggins v. City of Waco, 100 Tex. 32, 93 S.W. 426 (1906); and the recent decision by our Supreme Court in Dykes v. City of Houston, 406 S.W.2d 176 (Tex.Sup.1966).

In the instant case the City of Denison, having demonstrated by proper motion, pleadings and affidavits that it had applied reasonable discretion in denying appellant’s permit, the burden was cast upon appellant to demonstrate factually that the city commissioners abused their discretion and that such refusal amounted to a purely arbitrary decision without reason. This is especially so since we are here dealing with the question of granting a privilege to operate a business which is not a property right in itself. No property rights as such are involved.

Appellant makes the sole contention that the affidavits of Joe Joiner and appellant himself present sufficient summary judgment evidence which would clearly support an issuable fact, that is, that the City Council acted arbitrarily, capriciously and unreasonably in denying his application. We have carefully read these affidavits and find that rather than presenting facts which would be admissible upon the trial of the case, they contain hearsay and conclusory statements relating to the Council’s abuse of discretion. In Covington v. City of Denison, 369 S.W.2d 824 (Tex.Civ.App., Dallas 1963, writ ref’d n.r.e.), we considered a strikingly similar situation and there held that mere conclusions were not sufficient to attack the action on the part of the city council as being arbitrary and capricious in denying an application such as the one presented here.

Appellant, apparently realizing the weakness of his position, seizes upon certain statements of the mayor and one city councilman both before and following the council meeting, as constituting some evidence to raise a fact issue. In the affidavit of Driggs he relates as a fact that prior to the time that Joe W. Gay was elected mayor of Denison he consulted Mr. Gay in his capacity as a banker concerning his proposed application and asked Mr. Gay directly what he thought of such application. According to Driggs Mr. Gay said that “he made no objections to my application and said that he would be in a position to support it if it was presented.” Driggs also related that councilman Anderson, prior to his election to the City Council, was asked whether or not he would support the application and Anderson said that “he saw no reason why my application would not be granted.” Furthermore, Driggs related that several weeks after the hearing and denial of the application Anderson apologized to him for the action taken.

Appellant’s reliance upon these alleged statements, made by the mayor and one city councilman concerning his application at a time when neither of such gentlemen was a member of the City Council, to support his contention cannot be sustained in law.

The identical question was presented to the court in King v. Guerra, 1 S.W.2d 373, 374 (Tex.Civ.App., San Antonio 1927, writ ref’d). There contention was made, as here, that various members of the city commission, together with the mayor, were contacted separately and privately prior to the hearing on the application involved and that on each occasion the officials indicated that they would not oppose same. The court, in denying the very contention made here, said:

“It is true, as a matter of course, that the friendly expressions obtained from the mayor and two commissioners, in private conversations — whether made casually, upon impulses of the moment and without definite knowledge or consideration of the true facts of the proposed projects, or whether given deliberately and after mature consideration of all the ascertainable facts — can have no bearing upon the case. Even had they been so disposed, which they deny is the case, those officials, acting singly, individually, and separately, at different places and times and upon different occasions, could not bind themselves in their official capacity, nor the board of city commissioners as a body, nor the government of the city, nor any of its departments. Those expressions, whether of casually friendly acquiescence, or of solemn promises, can have no more bearing upon the official matter of the issuance of the permit than would similar expressions from any private citizen wholly disconnected from the city government.”

Finding no issue of fact presented we overrule appellant’s points. Appellee’s cross-point is also without merit and is overruled.

The judgment of the trial court is affirmed.


author: NORTH CUTT, Justice.

text:
    C. J. HUMPHREY, Independent Executor of the Estate of J. W. Dougherty, Deceased, and Vera Dougherty Bidwell, Appellants, v. S. W. DOUGHERTY et al., Appellees.
    No. 7724.
    Court of Civil Appeals of Texas. Amarillo.
    June 19, 1967.
    Rehearing Denied Sept. 11, 1967.
    Sanders, Scott, Saunders, Brian & Humphrey, Robert H. Smith of Counsel, Amarillo, for appellants.
    J. E. Thompson, S. R. Lenning, Jr., and David E. Holt, Pampa, for appellees.
   NORTH CUTT, Justice.

This is a suit in the nature of a declaratory judgment action. J. W. Dougherty and his first wife, Callie Dougherty, had six children; namely, S. W. Dougherty, Leola Dougherty Williams, Basil Dougherty, Callie Lee Dougherty Mann, Nellie May Woods and Vera Dougherty Bidwell. Nellie May Woods died leaving three children; namely, Booth Woods, Alvis Woods and Dorothy Woods Dyer. The first four above named, children together with Booth Woods, Alvis Woods and Dorothy Woods Dyer, as plaintiffs, hereinafter called appellees, brought this action against C. J. Humphrey, individually and as independent executor of the estate of J. W. Dougherty, deceased, James Bidwell, Nona Cousins Dougherty, surviving wife of J. W. Dougherty, and Vera Dougherty Bidwell, as defendants, seeking a declaratory judgment declaring the rights of the parties under the joint will of J. W. Dougherty and Callie Dougherty executed August 17, 1939. On or about February 15, 1942, Callie Dougherty died and the joint will of J. W. Dougherty and Callie Dougherty was duly probated.

On August 2, 1948, after said.will was probated, J. W. Dougherty executed a warranty deed to all of his six children above mentioned covering the west half of Section 98, Block 23, H. & G. N. RR Company Survey, Wheeler County, Texas, and being the real estate here involved. Thereafter J. W. Dougherty brought suit in Cause No. 4577 in the District Court of Wheeler County, Texas, as against the grantees in said deed for the recision and cancellation of said deed and for title and possession of the described land and that J. W. Dougherty be placed in status quo in the manner and to the extent as if no deed had ever been executed. The children answered resisting the cancellation of said deed and also filed their cross-action seeking title and possession of said real estate alleging that J. W. Dougherty unlawfully entered upon and dispossessed them of such premises and withheld from them the title and possession of said property. J. W. Dougherty filed his answer thereto and pleaded not guilty. Judgment was entered in Cause No. 4577 on November 16, 1956, cancelling the deed and decreeing that the children take nothing by virtue of their claim for title and possession of the real estate here involved and decreed that the title and possession of such real estate was vested in J. W. Dougherty as against the claims of all of said children. No appeal was taken from that judgment and it became final.

On March 24, 1966, J. W. Dougherty made another will disposing of both the real estate and personal property as will hereinafter be shown. James Bidwell and C. J. Humphrey, individually, disclaim any interest in any of the matters here involved and were dismissed and will not be considered herein any further. C. J. Humphrey as executor of the estate of J. W. Dougherty, deceased, and Vera Bidwell will hereafter be referred to as appellants. Nona Cousins Dougherty, the surviving wife of J. W. Dougherty, did not and does not make any claim tp any of the title of the real estate here involved.

It was the contention of the plaintiffs-in this suit that after the death of J. W. Dougherty that S. W. Dougherty, Leola Dougherty Williams, Basil Dougherty, Vera Dougherty Bidwell, Callie Lee Dougherty Mann and the three surviving children of Nellie May Woods were entitled to recover the real estate under the terms of the joint will of J. W. Dougherty and wife, Callie Dougherty. The plaintiffs also contested the rights of Nona Cousins Dougherty to recover the personal property under the will of J. W. Dougherty.

C. J. Humphrey, executor of the estate of J. W. Dougherty, deceased, Nona Cousins Dougherty and Vera Dougherty Bidwell answered herein contending that by virtue of the judgment entered in Cause No. 4577 in the trespass to try title suit that J. W. Dougherty recovered all right, title and interest as well as full possession of the real estate here involved and in effect that all rights of the parties herein are to be determined under the last will of J. W. Dougherty, deceased. It was the contention of appellees that the judgment entered in Cause No. 4577 only had the effect of setting aside the deed there in question and would have no effect on their rights to recover under the joint will of J. W. Dough-erty and Callie Dougherty since they had no title but only a remaining interest after the death of J. W. Dougherty. In the original pleadings of J. W. Dougherty in Cause No. 4577 he sought to cancel the deed because of some action of his children and to be placed in the same position he was in before executing the deed. Consequently, if the deed had only been cancelled as-pleaded, all parties would have been left as they were so far as the will of Callie Dougherty was concerned. The defendants pleaded in the alternative that Vera Bid-well be granted ¾2 of the real estate and each of the other four children of J. W. Dougherty and Callie Dougherty be granted ½2 each and each of the children of Nellie May Woods be granted a ½e. The real question then to he here determined is the effect of the trespass to try title suit and the effect of the two wills.

Judgment was rendered in this cause sustaining plaintiffs’ motion for summary judgment that the surface of the west half of Section 98, Block 23, H. & G. N. RR Co. Survey, Wheeler County, Texas, and all of the minerals under the southwest quarter of said Section 98 were vested ⅛ in S. W. Dougherty; ⅜ in Leola Dough-erty Williams; ⅜ in Basil Dougherty; ⅜ in Callie Lee Dougherty Mann; in Booth Woods; ¾8 in Vera Dougherty Bidwell; ½8 in Alvis Woods; and ¼8 in Dorothy Woods Dyer, subject to all outstanding and valid oil and gas leases on said southwest quarter and further subject to the homestead rights of Nona Cousins Dough-erty. The judgment further decreed that all oil, gas and other minerals in or under the northwest quarter of said section were owned as follows: an undivided ½ in Nona Cousins Dougherty for life with remainder in fee simple to James Bidwell; an undivided in Nellie May Woods or her heirs and an undivided ⅛ in Vera Dougherty Bidwell subject to any valid oil and gas leases thereon. It was further adjudged that all personal property of J. W. Dougherty was vested in Nona Cousins Dougherty and that the plaintiffs have no interest therein. The judgment further ordered that all relief requested by C. J. Humphrey as executor under the will of J. W. Dougherty, Nona Cousins Dougherty and Vera Dougherty Bidwell which were not granted were expressly denied and that all requests in plaintiffs’ motion for summary judgment not granted were denied and plaintiffs’ motion in opposition to defendants’ motion for summary judgment was overruled as same pertains to the personal property of J. W. Dougherty at the time of his death. All parties excepted partially to the judgment of the trial court and gave notice of appeal, appellees contesting the judgment in giving the personal property to Nona Cousins Dougherty and appellants contesting the judgment as to the real property.

We will first consider appellants’ contention that the judgment entered in Cause 4577 did away with all the rights the appel-lees might have had under the terms of the joint will made by J. W. Dougherty and Callie Dougherty. The only portion of the joint will made by J. W. Dougherty and Callie Dougherty having any bearing herein is as follows:

“It is our will and desire that the survivor of us, J. W. Dougherty or Callie Dougherty,' as the case- may be, shall, with the rights and authority below given, have all the estate of every description, real, personal, or mixed, which either or both of us may own, to be used, occupied, enjoyed, conveyed and expended by and during the life of such survivor, as such survivor shall desire, and that upon the death of such survivor any of such estate then remaining shall be divided equally among the persons following: Mrs. Nellie May Woods, Mrs. Vera Bidwell, Mrs. Leola Williams, Miss Callie Lee Dougherty, Sam Dougherty and Basil Dougherty.
“It is our further will and desire that should any of the above named children predecease the final survivor of this our last will and testament, then and in that event the portion or interest of such deceased child or children shall pass to and vest in the heirs of the. body of such deceased child of children. In the event such deceased child or children has no blood heirs, then such portion of their interest shall be divided equally among the surviving children enumerated in paragraph II above. Provided, however, if Mrs. Vera Bidwell should die before final settlement and division of the estate is completed, then and in that event Basil Dougherty is hereby designated and appointed as trustee to care for and manage the interest of the children of Mrs. Vera Bidwell until said children, shall have become twenty-one (21) years of age.
“It is our further will and desire that in the event Callie Dougherty predeceases J. W. Dougherty, said J. W. Dougherty is hereby and herewith fully vested with all the right, title and interest belonging to the said Callie Dough-erty which she can legally convey in the entire estate. Should however, J. W. Dougherty predecease his wife, Callie Dougherty, then and in that event Basil Dougherty is hereby named as co-executor of said estate, to have, hold and exercise equal power and authority as executor together- with- the surviving spouse, Callie Dougherty as co-executrix, from neither of whom bond shall be required.”

It is true J. W. Dougherty in his pleadings in Cause No. 4577 merely asked that the deed to his children be cancelled and that he be placed in status quo in the manner as to the same extent as if no deed had ever been executed. If only that relief had been granted all the parties would have been left as they were prior to the execution of the deed. Appellees were not satisfied with having the deed set aside and brought this action to recover full title and possession of the real estate and brought in issue the title and possession of the property by the trespass to try title action. It is stated in Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564 (1937) as follows:

“Had the pleadings in this case confined the parties to the issue of locating a boundary, we possibly might face a different case. The cause of action which was asserted against the defendant by the plaintiff in the trespass to try title suit of Monroe v. Hickox, pleaded in general form, was the claim to the title and possession of the land described. The defendant’s plea of not guilty admitted his possession and put in issue the plaintiff’s cause of action. The plaintiff failed and the defendant prevailed. In such an instance both the title and the possession of defendant was established as between the parties by the judgment. In this state a petition limited to the statutory form of trespass to try title always puts in issue both title and possession. Any one of a number of facts may determine the issue, but the cause of action remains the same. If the plaintiff seeks to limit the issue to one of such facts, he must do so by special pleading in appropriate form. By so doing he may limit the case to the portion of his land involved in the boundary dispute, or possession, or to some other incident of title.”

See also the same case at 73 S.W.2d 490 by the Supreme Court where it is stated:

“The doctrine has been thoroughly settled by repeated decisions of the courts of this state, that a judgment in an action of trespass to try title that plaintiff take nothing by his suit is an adjudication that the title to the land involved is in the defendant, and such a judgment is equally as effective for that purpose as one expressly vesting title in the defendant. French v. Olive, 67 Tex. 400, 3 S.W. 568, 569; Wilson v. Swasey, (Tex.Sup.) 20 S.W. 48; Hoodless v. Winter, 80 Tex. 638, 16 S.W. 427, 428; Houston Oil Co. v. Village Mills Co. (Tex.Com.App.) 241 S.W. 122; Stark v. Hardy (Tex.Com.App.) 29 S.W.2d 967; Dunn v. Land (Tex.Civ.App.) 193 S.W. 704; McAllen v. Crafts (Tex.Civ.App.) 139 S.W. 44; Drummond v. Lewis (Tex.Civ.App.) 157 S.W. 266, 268; Bomar v. Runge (Tex.Civ.App.) 225 S.W. 287; Taylor v. W. C. Belcher Loan & Mortgage Co. (Tex.Civ.App.) 265 S.W. 403.”

See also Knight v. Chicago Corporation, 144 Tex. 98, 188 S.W.2d 564 (1945). In Trigg v. Whittenburg, 129 S.W.2d 472 (Tex.Civ.App.-Amarillo, 1939, writ ref’d) it is stated:

“In the case of Freeman v. McAninch et al., 87 Tex. 132, 27 S.W. 97, 98, 47 Am.St.Rep. 79, wherein certain defendants in a former judgment sought in a new suit to avoid the effect of that judgment in a situation similar to the one presented in the instant case, Judge Stay-ton, speaking for the Supreme Court of Texas, said: ‘Where it appears from the record of a court having jurisdiction over the parties and subject-matter that an issue has been presented and decided, then the decision so made, so long as it is not set aside in some lawful manner, must be held conclusive upon the rights of the parties, when the same issue is again presented; and in such cases extrinsic evidence cannot be received to contradict the record, by showing that an issue necessarily involved in the cause was not presented and decided.’
“In the same case Judge Stay ton quotes with approval the following language from the case of Foster v. Wells, 4 Tex. 101, 104: ‘ “That the judgment or decree of a court possessing competent jurisdiction shall be final as to the matters determined, cannot be controverted. The principle, however, extends further. It is not only final as to the matters actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided.” ’ ”

It is stated in Chandler v. City of Corpus Christi, 272 S.W.2d 646 (Tex.Civ.App.-San Antonio, 1954, writ ref’d, n. r. e.) as follows:

“While the comparison of a lawsuit to a game or contest may be inappropriate in most instances, it is nevertheless true that the plaintiff in a suit involving land or interests in land may, in many instances, determine the stakes for which he will play. If he wishes to place the title to the lands itself in its entirety at issue, he may plead accordingly, but if he does not desire to do so, he may limit the scope and extent of the litigation by appropriate pleading. Having elected a battle upon the broader front by selecting the general statutory pleading, the scope and effect of the resulting unfavorable judgment may not be restricted to the exact legal points considered or discussed by the trial or appellate court in arriving at its ultimate decision. Under the doctrine of res judicata the judgment controls, rather than the reasons given for the judgment, or, as expressed by Judge Robertson in Sheffield v. Goff, 65 Tex. 354, ‘A party is bound by the judgment, but not the logic, of courts.’ ”

Article 7391, Vernon’s Ann.Tex.Civ.St., provides: “Any final judgment rendered in any action for the recovery of real estate shall be conclusive as to the title or right of possession established in such action upon the party against whom it is recovered, and upon all persons claiming from, through or under such party, by title arising after the commencement of such action.”

We are of the opinion, and so hold, that when J. W. Dougherty brought this action to cancel the deed he had made, and to leave him in status quo as before the deed was made, when the deed was cancelled, appellees would have been in the same position under the will of J. W. Dougherty and Callie Dougherty as if no suit had been filed. When appellees put in issue title and possession of the real estate, and judgment was rendered that they take nothing by virtue of their claim for title and possession and the title and possession was vested in J. W. Dougherty as against the claims of all the plaintiffs, that that was a final judgment vesting full title and possession in J. W. Dougherty and is binding upon the appellees herein. Therefore, the full title and possession was vested in J. W. Dough-erty and the rights to the property here involved is to be determined solely by the terms of the last will executed by J. W. Dougherty.

However, should we be wrong in holding that the sole title and possession of the real estate was vested in J. W. Dougherty by virtue of the judgment in Cause No. 4577, we are of the opinion, and so hold, that under the joint will of J. W. Dougherty and Callie Dougherty that J. W. Dougherty was vested with full title and possession of the property here involved. In the third paragraph of said will copied above it is provided:

“It is our further will and desire that in the event Callie Dougherty predeceases J. W. Dougherty, said J. W. Dougherty is hereby and herewith fully vested with all the right, title and interest belonging to the said Callie Dougherty which she can legally convey in the entire estate. Should however, J. W. Dougherty predecease his wife, Callie Dougherty, then and in that event Basil Dougherty is hereby named as co-executor of said estate, to have, hold and exercise equal power and authority as executor together with the surviving spouse, Callie Dough-erty as co-executrix, from neither of whom bond shall be required.”

It is to be noticed here that in case Callie Dougherty predeceased J. W. Dougherty, which she did, no executor was appointed because none was necessary as all of the property was given outright to J. W. Dougherty and he could handle as he saw fit but as to J. W. Dougherty predeceasing his wife, then Basil was appointed as joint executor to assist his mother. As a further reason we construe the joint will of Mr. and Mrs. Dougherty as vesting absolute title in J. W. Dougherty is because there is an irreconcilable conflict between the first and third paragraphs above set out in the will and copied herein and the latter paragraph will prevail over the first paragraph as being the latest impression of the testator’s attempt. Martin v. Dial, 57 S.W.2d 75, 89 A.L.R. 571 (Tex.Com.App.,1933); Stanley v. Henderson, 139 Tex. 160, 162 S.W.2d 95 (1942); Blocker v. Davis, 241 S.W.2d 698 (Tex.Civ.App.-Fort Worth, 1951, writ ref’d, n. r. e.).

In construing the will of J. W. Dough-erty we think his intention as to how he wanted the estate divided is clear. He had in mind the fact that the real estate in question was acquired by him and the mother of his children and he wanted their children to have all of their mother’s ½ interest in the estate that she had prior to her death. Consequently, he gave to Vera Bidwell, S. W. Dougherty, Leola Williams, Basil Dougherty, Callie Lee Mann and to the three children of Nellie Woods, deceased, their mother’s interest in ½ of the west half of Section 98, Block 23, H. & G. N. RR Co. Survey, Wheeler County, Texas. He also willed to Vera Bidwell the other (4 of the west ½ of Section 98 and thereby intended that she should have his ½ of the real estate as originally owned before the mother’s death and ⅛ of her mother’s ½. He willed all personal property to his surviving wife, Nona Cousins Dougherty.

Under this record we are of the opinion, and so hold, that at the time of the death of J. W. Dougherty he owned all of the west half of Section 98 here involved as well as all of his personal property and could dispose of the same as he saw fit. In trying to explain why he made the difference as to the amounts given as between his children he provided as follows:

“As to the property and estate which I am disposing of under this Will, I state that my present wife, Nona Dough-erty, has helped to finance my farming operations and has made an excellent wife and given me every care and attention, and, likewise, my daughter, Vgra Bidwell, has been faithful in her love and support, and it is for these reasons that I have left my property to my said wife and my beloved daughter.”

That portion of the trial court’s judgment granting all of the personal property to Nona Cousins Dougherty is hereby affirmed. That portion of the trial court’s judgment granting as follows: “* * * the surface of the West Half of Section 98, Block 23, H&GN RR Co. Survey, Wheeler County, Texas, and all of the minerals under the Southwest Quarter of said Section 98 are vested one-sixth in S. W. Dougherty, one-sixth in Leola Dough-erty Williams, one-sixth in Basil Dougherty, one-sixth in Callie Lee Dougherty Mann, a one-sixth in Vera Dougherty Bidwell, a one-eighteenth in Booth Woods, a one-eighteenth in Alvis Woods, and a one-eighteenth in Dorothy Woods Dyer, subject to all outstanding and valid oil and gas leases on said Southwest Quarter and further subject to the homestead rights of Nona Cousins Dougherty,” is hereby reversed and judgment here rendered, subject to any valid oil and gas lease thereon, that all of the surface of the west half of Section 98, Block 23, H. & G. N. RR Co. Survey, Wheeler County, Texas, and all of the oil, gas and other minerals in and under the Southwest one-fourth of Section 98, Block 23, H. & G. N. RR Co. Survey, Wheeler County, Texas, subject to any homestead rights of Nona Cousins Dougherty, be and the same is hereby vested 2⅛6 in Vera Bidwell, ⅜6 in S. W. Dougherty, %e in Leola Dougherty Williams, ⅜6 in Basil Dougherty, ⅜6 in Callie Lee Dougherty Mann, ½6 in Booth Woods, ⅛6 in Alvis Woods and ⅞6 in Dorothy Woods Dyer.

Affirmed in part and reversed and rendered in part.