author: CALVERT, Chief Justice.

text:
    John F. MAHER et al., Petitioners, v. Garland M. LASATER et al., Respondents.
    No. A-8631.
    Supreme Court of Texas.
    Feb. 21, 1962.
    Rehearing Denied April 4, 1962.
    Lloyd, Lloyd & Dean, Alice, for petitioners.
    Butler, Binion, Rice & Cook, Houston, Markel Heath, Falfurrias, R. H. Singleton, Houston, Harold E. Vittitoe, Falfurrias, for respondents.
   CALVERT, Chief Justice.

Suit was by John F. Maher and others to set aside an order of the Commissioners Court of Brooks County declaring a private road across their land to be a public highway. The trial court granted the relief sought. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that the plaintiffs take nothing. 348 S.W.2d 671.

In declaring the road to be a public highway, the Commissioners Court acted under apparent authority conferred by Article 6711, Vernon’s Annotated Texas Civil Statutes. The pertinent provisions of the statute are set out at length in the opinion of the Court of Civil Appeals, 348 S.W.2d 675, and need not be repeated here. As the statute now reads, and as it read at the time the order under attack was entered, a commissioners court is authorized to declare and open a public highway, at public expense, across lands of nonconsenting owners, upon application and showing that one or more landowners wish, but do not have, a means of access to their land or premises connecting with the county public road system. Petitioners assert that the statute is unconstitutional in so far as it authorizes a taking of their property in the factual situation before us.

The Commissioners Court’s order was entered pursuant to application made by Garland M. Lasater. Lasater and petitioners had been tenants in common of lands acquired under the will of Mary M. Lasater. A plat of the lands is reproduced in the opinion of the Court of Civil Appeals in Lasater v. Maher, 330 S.W.2d 481, 482. The lands were partitioned by judgment of the District Court of Brooks County in 1956. Section 331 was awarded to Lasater. The section is isolated from public roads by a salt lake on the North, privately owned land on the East and. South, and land awarded to petitioners on the West. In the partition proceeding Lasater protested the re* port of the commissioners in partition because it did not award him an easement for an outlet by necessity across petitioners’ land to a public highway bordering such land on the West. The matter was contested and Lasater’s claim to the easement as a way of necessity was denied by the trial court’s judgment. He did not appeal. Thereafter, he filed suit to establish a right to an easement across petitioners land as a road by necessity. He lost in the suit, upon a holding by the Court of Civil Appeals that the issue was res judicata. Lasater v. Maher, Tex.Civ.App., 330 S.W.2d 481, no writ history.

The roadway which the Commissioners Court’s order establishes as a public -highway is two and one-half miles in length. Its western terminus is at its intersection with the public highway bordering petitioner’s land on the West and its eastern terminus is at the West line of Section 331. It dead-ends at that point. It does not serve as a means of access to any other land. There are no other residents along its course.

Lasater does not live on Section 331, and neither does anyone else. The land is grazing or pasture land and only about 60 of the 640 acres could be cultivated. The only improvements on the section are a windmill and some pens.

Section 17 of Article 1 of the Constitution of Texas, Vernon’s Ann.St., provides that “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by consent of such person; * * That provision not only requires the payment of adequate compensation for property taken for public use, it prohibits the taking of property for private use. Marrs v. Railroad Commission, 142 Tex. 293, 177 S.W.2d 941, 949; Coastal States Gas Producing Co. v. Pate, 158 Tex. 171, 309 S.W.2d 828, 833. The provision operates as a limitation on the power of the Legislature as well as a limitation on the power of governmental agencies and public and private corporations. McInnis v. Brown County Water Imp. Dist., Tex.Civ.App., 41 S.W.2d 741, 744, writ refused. The Legislature may not authorize that which the Constitution prohibits.

Prior to amendment by the Legislature in 1953, Article 6711 authorized Commissioners Courts to declare a roadway to be a public highway only if they deemed “the road of sufficient public importance.” As so written the statute conditioned the taking of property upon a finding that it would be dedicated to a public use. By Acts 53rd Leg., p. 1054, ch. 438, the requirement for a finding that the road was of public importance was eliminated, and Commissioners Courts are now authorized to declare a private roadway to be a public highway if applicants therefor wish it to be done and “have no means of access to their lands and premises.” In so far as the amendment seeks to authorize the taking of private property for private use, it is unconstitutional and void.

Lasater argues that by the amendment the Legislature has declared that a public purpose is served when land is taken to provide a roadway for a landowner who has no means of access to his land. It may have done so by implication. It certainly has not done so expressly. In any event, a mere declaration by the Legislature cannot change a private use or private purpose into a public use or public purpose. Dallas Cotton Mills v. Industrial Co., Tex.Com. App., 296 S.W. 503, 505; Texas Turnpike Co. v. Dallas County, 153 Tex. 474, 271 S.W.2d 400, 402. While a legislative declaration in this and kindred fields will be given great weight by the courts, the ultimate question of whether a particular use is a public use is a judicial question to be decided by the courts. Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 130 A.L.R. 1053; Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699.

Both parties to this litigation cite and to some extent rely on Phillips v. Naumann, 154 Tex. 153, 275 S.W.2d 464, as authority for their respective positions. That case grew out of an order of a Commissioners Court entered under authority of Article 6711 before it was amended. The order directed the opening of a roadway across land owned by Phillips to lake-front land owned by Naumann. A jury found that in entering the order the Commissioners Court was acting primarily for the benefit of Naumann and that the court did not deem the road of substantial public importance. The trial court, nevertheless, sustained the order of the Commissioners Court,.and its judgment was affirmed by the Court of Civil Appeals. Phillips v. Stockton, 270 S.W.2d 266. We reversed the judgments of the .district court and Court of Civil Appeals and rendered judgment invalidating the order of the Commissioners Court on one primary holding which was dispositive of the case. We held that the evidence established that Naumann had access to his land over another road and that there was no necessity for the established road. In deciding that question we assumed, but did not hold, that it is of public importance that every person residing on larnd be provided access to and from his land so that he may enjoy the privileges and discharge the duties of a citizen.

After deciding the controlling question in Phillips v. Naumann, we gave consideration to other matters which were urged upon our attention. What we said as to those matters may be dicta, but we regard the views we expressed as sound and as decisive of the issue before us here. We discussed the jury findings that the order opening the road was primarily for the benefit of Naumann and that the Commissioners Court did not deem the opening of the road of any substantial public importance, and said (275 S.W.2d 467):

“The undisputed evidence discloses that the only persons who could be benefited by the opening of this road are the Naumanns and persons who might desire to visit them. The principle that private property cannot he taken for a private use is too elementary to call for a citation of authorities in support thereof. What this record discloses is the taking of private property of petitioners for the use of Nau-mann, and for no other use, and that, too, when there is no necessity for doing so.”

The only possible public purpose conceivable which the road in this case can serve is that of putting the products of the soil and the range of Section 331 into the economy of the community. That question is also dealt with in Phillips v. Naumann. It was there suggested that by opening up the road Naumann would be enabled to establish a fishing camp or some other commercial development on his lands. We expressed our views with respect to the suggestion in this language (275 S.W.2d 468) :

“It does not lie within the power of the Commissioners’ Court to condemn a highway across petitioners’ ranch in order to enable Naumann to establish a fishing camp or other commercial enterprise on his land. To do so would be taking private property for a private purpose.”

No good purpose would be served by analyzing the many cases cited by the parties. The simple fact is that the Commissioners Court of Brooks County has entered an order which, if given effect, will, on the facts in this case, take petitioners’ land for the private benefit of respondent Lasater. The order violates Section 17 of Article 1 of the Constitution and is void. No doubt the Commissioners Court acted in a good faith belief that its order was authorized by Article 6711. To the extent that the Article purports to authorize the taking of private property for private use, it also violates Section 17 of Article 1 of the Constitution and is void.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. L. L. DAVIS, Petitioner, v. EAST TEXAS SAVINGS & LOAN ASSOCIATION of Tyler, Texas, et al., Respondents.
    No. A-8455.
    Supreme Court of Texas.
    Feb. 28, 1962.
    Rehearing Denied April 4, 1962.

      Smith & Smith, Tyler, for petitioner.
    Reeves & Reeves, Tyler, for respondent East Texas Savings & Loan Ass’n.
    Power, McDonald & Mell, and L. L. James, Tyler, for respondents Rittia Lee Venable and husband.
   CALVERT, Chief Justice.

East Texas Savings & Loan Association filed an interpleader suit in the district court against Mrs. L. L. Davis, individually and as independent executrix of the estate of L. L. Davis, deceased, and Mrs. Rittia Lee Venable to determine the ownership of a fund in the amount of $6000 which East Texas deposited in the registry of the court. East Texas sought recovery of its attorney’s fee of $450 and court costs. Mrs. Davis is the surviving widow of L. L. Davis and Mrs. Venable is his daughter by a previous marriage.

Mrs. Davis, by way of answer, denied East Texas’ right to recover the attorney’s fee, and by cross-action sought recovery of the entire $6000. Mrs. Venable by cross-action sought to recover one-half of the $6000 and sought a recovery from Mrs. Davis of one-half of a sum of $2000 collected by her from First Federal Savings & Loan Association.

The trial court’s judgment denied all relief sought by East Texas and Mrs. Venable, and awarded the entire $6000 to Mrs. Davis, individually. The Court of Civil Appeals reversed the trial court’s judgment and rendered judgment as follows : East Texas was awarded a recovery of its attorney’s fee in the sum of $450 and of costs; the remainder of the $6000 in the registry of the court, after payment of court costs and East Texas’ attorney’s fee, was divided equally between Mrs. Davis and Mrs. Venable; Mrs. Venable was awarded a recovery from Mrs. Davis of one-half of the sum of $2000 collected by her from First Federal, a one-half interest in all money in the bank at the time of the death of L. L. Davis, and a one-half •interest in a burial certificate owned by L. L. Davis at the time of his death. The recovery allowed Mrs. Venable was made subject to payment of one-half of East Texas’ attorney’s fee, one-half of costs in the trial court, one-half of the burial expense of L. L. Davis, one-half of the cost of his tombstone, one-half of an attorney’s fee to be allowed for probating the will of L. L. Davis, and one-half of the court costs in the probate proceeding. The court severed the issue relating to the fee of the attorney who probated the will and remanded that issue to the trial court to hear evidence and determine the amount thereof. The judgment was ordered certified to the district court for observance. All costs of appeal were adjudged against Mrs. Davis, individually, Tex.Civ.App., 346 S.W.2d 178.

The factual background of the suit is as follows: On January 6, 1953, L. L. Davis, then a single man, deposited the sum of $6000 with East Texas and received stock certificate No. 2755, issued in his name. On February 13, 1953, L. L. Davis married petitioner. At the request of L. L. Davis, stock certificate No. 2755 was changed to read “L. L. Davis or Mrs. L. L. Davis” on January 3, 1956, and at the same time a signature card was signed by Mr. and Mrs. Davis which stated that the certificate was held by them as joint tenants with right of survivorship.

Two stock certificates in the amount of $1000 each were purchased by Mr. and Mrs. Davis during their marriage from First Federal. One certificate was purchased on January 8, 1955, and the other on January 3, 1956. Both were issued in the name of Mr. or Mrs. L. L. Davis as joint tenants with right of survivorship.

On July 10, 1959, L. L. Davis died leaving a will, executed on May 7, 1956, naming Mrs. Davis as independent executrix. The will was admitted to probate on October 14, 1959.

At a date uncertain but after October 14, 1959, and before October 20, 1959, Mrs. Davis presented certificate No. 2755 to East Texas and requested payment. Both before and after this informal demand, East Texas was notified by Mrs. Venable through her attorney that she was claiming a one-half interest in the funds represented by the certificate under the terms of the will of L. L. Davis. As a result of such information, the records of East Texas were “flagged” to indicate the dispute. After East Texas refused to pay the money, Mrs. Davis presented a formal written demand on October 20, 1959.

The will of L. L. Davis contains the following pertinent provisions:

“II
“I give to my wife, Cora E. Davis, our homestead located at 905 North Bois d’Arc Avenue in the City of Tyler, State of Texas, and described as all that lot or parcel of land situated within the County of Smith, State of Texas, in the corporate limits of the City of Tyler, to wit: [description] as well as all of our household furniture, our automobile, all personal effects and belongings and other property of a similar nature used personally or in or about the home.
“Ill
“All the rest and residue of my estate consisting of cash, bonds, stocks, and personal property of a similar nature I give equally, share and share alike, to my wife, Cora E. Davis, and my daughter, Rittia Lee Vendable, to be divided one-half (½) each at the earliest possible time after the payment of expenses as above provided.”

The theory of the trial court’s judgment is reflected in the judge’s findings of fact and conclusions of law. He found that the $6000 deposited by East Texas was the only property involved in the case; that East Texas was not justified in filing the interpleader suit; that under the terms of the agreement made with East Texas on January 3, 1956, Mrs. Davis became a joint tenant of the East Texas deposit with right of survivorship, which interest ripened into absolute ownership upon the death of L. L. Davis; that L. L. Davis did not intend by the third paragraph of his will to dispose of property other than his own; that although paragraph two of the will gave separate property of- the testator to Mrs. Davis and thereby gave her property which she would not otherwise have been entitled to, she was not put to an election by the will, and that by taking the property described in paragraph two she had not elected to give up her interest in the $6000 deposit.

The judgment of the Court of Civil Appeals rests on holdings that East Texas was justified in filing the interpleader suit; that title to the $6000 deposit and the $2000 collected by Mrs. Davis from First Federal is controlled by our decision in Hilley v. Hilley, Tex., 342 S.W.2d 565; that the testator did intend by paragraph three of the will to dispose of the $6000 on deposit with East Texas and other property owned by Mrs. Davis; that the will did put Mrs. Davis to an election, and that by taking the property devised and bequeathed to her in paragraph two of the will Mrs. Davis became bound by the disposition in paragraph three.

We hold: 1. East Texas was not justified in filing the interpleader suit and, therefore, is not entitled to recover its attorney’s fee and costs. 2. Title to the $6000 deposit is not governed by Hilley v. Hilley. 3. Upon the death of L. L. Davis, Mrs. Davis became the owner of the $6000 on deposit with East Texas. 4. Title to the $2000 collected from First Federal was, and is, in issue in the case. 5. Title to the $2000 is governed by Hilley v. Hilley and was community property of Mrs. Davis and L. L. Davis at his death. 6. L. L. Davis did not intend by paragraph three of his will to dispose of property not owned by him. 7. The will did not put Mrs. Davis to an election, and by taking the property given her in paragraph two of the will she did not elect to give up her separate or community interest in other property. 8. That the Court of Civil Appeals erred in closing the independent administration and in undertaking to partition and distribute the estate of L. L. Davis.

1. East Texas was not justified in filing the interpleader suit. An interpleader suit is authorized by Rule 43, Texas Rules of Civil Procedure, only when persons having claims against the plaintiff are such that he “is or may be exposed to double or multiple liability.” The claims “must be such as to place the stakeholder in some real doubt or hazard to entitle him to the remedy of interpleader,” Nixon v. Malone, 100 Tex. 250, 98 S.W. 380, 385, 99 S.W. 403, and the doubt must at least be a reasonable one. Employers’ Casualty Co. v. Rockwall County, 120 Tex. 441, 35 S.W.2d 690, 693, 38 S.W.2d 1098; Greenwall v. Ligon, Tex.Com.App., 14 S.W.2d 829, 832.

Certificate No. 2755 provides that it is issued by East Texas and accepted by the purchasers “subject to all the laws of the State of Texas.” Article 881a-23, Vernon’s Annotated Texas Civil Statutes, provides that when shares or share accounts are issued by a building and loan association “in the name of two or more persons, or to two or more persons or the survivor of either [sic],” the share or share accounts “may be withdrawn on the signature of either party to whom such share or share accounts were issued, * * * and such association shall have no further liability for the amounts so paid.” The Article further provides:

“Such a joint account shall create a single membership in such association, and the repurchase or withdrawal value of share or share accounts issued in joint names and dividends thereon, or other rights relating thereto, may be paid or delivered in whole or in part, to any of such persons who shall make request therefor, whether the other person or persons he living or dead. The payment or delivery to any such person, on a receipt or acquittance signed by any such person, to whom any such payment or such delivery of rights is made, shall be a valid and sufficient release and discharge of any such association for the payment or delivery so made.”

Under the express terms of the certificate and the statute, East Texas could have paid the $6000 on deposit with it to Mrs. Davis without the slightest risk of double liability. The statute shielded it from risk with absolute immunity. There was, and is, no room for reasonable doubt of that fact.

East Texas urges that the decisions in Pruett v. First National Bank of Temple, Tex.Civ.App., 175 S.W.2d 658, no writ history, and Adams v. Jones, Tex.Civ.App., 258 S.W.2d 401, no writ history, and the fact that Art. 881a-23 had not been construed by the courts made it doubtful of its rights and thus justified it in refusing to pay Mrs. Davis and in filing this suit. The Pruett case dealt with Art. 541d, V.A.T.C. S., before that Article was changed and incorporated in the Texas Banking Code as Art. 342-710, governing the liability of banks for paying out money deposited in a joint account. That statute immunized banks against liability for payments made from joint accounts, in accordance with the terms of joint account agreements, prior to receipt “of notice in writing not to pay such deposit.” The decision is patently not authority for the refusal of East Texas to pay under the controlling provisions of Art. 881a-23. Adams v. Jones dealt with the question of ownership of a joint account in a bank and not with the rights of the bank. The statutory protection guaranteed East Texas by Art. 881a-2J is too plain to require construction.

2. Ownership of the $6000 certificate or deposit is not governed by Hilley v. Hilley. The certificate in Hilley v. Hilley was purchased with community funds. The East Texas certificate was purchased with separate funds of L. L. Davis. The legal consequences of the two transactions are entirely different.

3. Upon the death of L. L. Davis, Mrs. Davis became the owner of the $6000 on deposit with East Texas as her separate property. The contract made by Davis with East Texas was a valid and enforceable contract for the benefit of a third party. Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 828, 158 A.L.R. 470. In that case we held that United States Savings Bonds purchased by Mrs. Rhode and made payable to herself and on her death to Mrs. Edds, were, on the death of Mrs. Rhode, the property of Mrs. Edds. Our conclusion was predicated on a holding that the contract made by Mrs. Rhode with the United States Government was for the benefit of Mrs. Edds and that when the bonds were purchased Mrs. Edds acquired a present vested though de-feasible interest in the bonds which ripened into full and absolute title upon Mrs. Rhode’s death. That case and this case are not to be distinguished because the former involved bonds and this involves a savings and loan certificate.

In this case the rights of Mrs. Davis are the same as those of Mrs. Edds. When the contract was made by L. L. Davis with East Texas, Mrs. Davis was thereby vested with a present, though defeasible, interest in the deposit. Her interest would have been defeated if the certificate had been changed by Davis or the deposit had been withdrawn before his death, or if Mrs. Davis had predeceased her husband. But when Davis died without the interest of Mrs. Davis having been defeated, she became the owner of the full title to the deposit. We know of no constitutional or statutory impediment to the making by a husband of such a contract affecting title to his separate funds. We specifically recognized that right in Hilley v. Hilley, Tex., 342 S.W.2d 565, 571, when we said, “there seems to be no legal impediment to recognition of a contract for the benefit of a third party when the bonds are acquired with the purchaser’s separate funds.” See also Chamberlain v. Robinson, Tex.Civ.App., 305 S.W.2d 817, writ refused and McFarland v. Phillips, Tex.Civ.App., 253 S.W.2d 953, writ refused n. r. e.

4. Title to the $2000 collected by Mrs. Davis on the First Federal certificates was, and is, an issue in the case. Ownership of this fund was put in issue by the answer and cross-action of Mrs. Venable on which the case was tried. She predicated her claim to ownership of an interest therein on construction of paragraph three of her father’s will. Neither East Texas nor Mrs. Davis raised any question of the court’s right or duty to try the issue. On the contrary, Mrs. Davis claimed to be the owner of all of the proceeds of these certificates as her separate property. Evidence was introduced concerning the purchase of the certificates and the collection of the proceeds by Mrs. Davis.

Rule 43, Texas Rules of Civil Procedure, governing interpleader suits, expressly states that its provisions “supplement and do not in any way limit the joinder of parties permitted in any other rules”. Neither should, nor will, the Rule be construed to limit the joinder of claims permitted by other rules. Joinder of the claim by Mrs. Venable to an interest in the $2000 is authorized by Rules 51 and 97, Texas Rules of Civil Procedure. The issue thus squarely joined on ownership of proceeds of the First Federal certificates should have been determined by the judgment of the trial court.

5. The two First Federal certificates were purchased during marriage, presumptively with community funds. Title to those certificates and the deposit they represented is governed by Hilley v. Hilley, Tex., 342 S.W.2d 565. They were the community property of Mr. and Mrs. Davis, and title to the one-half community interest of Mr. Davis vests according to the provisions of his will.

6. L. L. Davis did not intend by paragraph three of his will to dispose of property not owned by him. Mrs. Venable’s claim to a one-half interest in the $6000 deposited in court and a one-half interest in the $2000 collected by Mrs. Davis from First Federal must rest upon a conclusion that by paragraph three of his will Mr. Davis intended to dispose of the East Texas certificate which upon his death became the separate property of Mrs. Davis and of Mrs. Davis’ one-half community interest in the First Federal certificates.

The law presumes that a testator intends to dispose of only his own property, and a testamentary instrument will not be construed to dispose of property not owned by the testator unless that result is indicated by clear and unequivocal language which leaves the will “open to no other construction.” Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670, 674-675; Avery v. Johnson, 108 Tex. 294, 192 S.W. 542, 544. For, as we have held, if the language of the will is open to a different construction, that is, a construction that the testator intended to dispose of only his own property, the instrument will be construed as a matter of law as not disposing of any other property. Wright v. Wright, supra.

Here, the testator stated in paragraph three of his will that he gave equally to Mrs. Davis and Mrs. Venable “All the rest and residue of my estate consisting of cash, bonds, stocks, and personal property of a similar nature.” The use of the words, “my estate” and “my property” in themselves indicate an intention to dispose only of the testator’s own property. Wright v. Wright, supra; Avery v. Johnson, supra; Rippy v. Rippy, Tex.Civ.App., 49 S.W.2d 494, writ refused; Ward v. Gohlke, Tex.Civ.App., 279 S.W.2d 422, writ refused. It follows that an intention to dispose of Mrs. Davis’ separate property and her one-half interest in community property is not disclosed by clear and unequivocal language in the will.

7. Since paragraph three of the will does not dispose of Mrs. Davis’ separate and community interest in the savings and loan certificates and other personal property, she was not put to an election of whether to give up that interest and take the property devised to her in paragraph two of the will or retain that interest and give up the property devised to her in paragraph two. Paragraph three of the will properly construed, disposes only of Davis’ separate property, if any, and of his one-half of the community. Mrs. Davis and Mrs. Venable take the property in equal shares.

8. At the time this suit was filed the estate of L. L. Davis was being administered by Mrs. Davis as independent executrix. Evidence in the record clearly indicates that the estate had not been fully administered and the trial judge so found. Section 152 of the Probate Code, V.A.T.S., authorizes a distributee to file an application to close an independent administration, but the application must be made to the probate court and may he granted only “after an estate has been fully administered and there is no further need for an independent administration of such estate”. The judgment of the Court of Civil Appeals in effect ordered the administration on the estate of L. L. Davis closed and the estate partitioned and distributed as there directed. The district court did not err in refusing to close the administration or- in refusing to partition and distribute the estate and the Court of Civil Appeals erred in reversing and rendering a contrary judgment.

The judgment of the Court of Civil Appeals is reversed. That part of the judgment of the district court denying East Texas any relief and awarding Mrs. Davis individually the $6000 on deposit in the registry of the court is affirmed. That part of the judgment of the district court decreeing that Mrs. Venable take nothing is reversed, and it is ordered that Mrs. Venable’s title to a one-fourth interest in the $2000 collected by Mrs. Davis from First Federal Savings & Loan Association be established, subject to a due and orderly administration by Mrs. Davis of the estate of L. L. Davis. The trial court’s judgment assessing all costs in that court against East Texas is affirmed. One third of the costs in the Court of Civil Appeals and in this court is assessed against each of the parties.


author: HAMILTON, Justice.

text:
    James V. SHORT, Jr., Petitioner, v. Barbara SHORT, Respondent.
    No. A-8723.
    Supreme Court of Texas.
    March 7, 1962.

      Perkins, Floyd, Davis & Oden, Lawrence H. Warburton, Jr., with above firm, Alice, for petitioner.
    Lloyd, Lloyd & Dean, Parker Ellzey with above firm, Alice, for respondent.
   HAMILTON, Justice.

James V. Short, Jr., brought habeas corpus proceedings in Jim Wells County, Texas, on November 16, 1960, to obtain possession of his two children, James E. and Sherrie Lynn Short, aged three years and two years respectively. The children’s mother, Barbara Short, answered this petition on November 18, 1960, and also filed a cross action for custody of the children. The District Court of Jim Wells County, after a hearing, ordered care and custody of the children to the mother with one month of visitation each year to the father. The San Antonio Court of Civil Appeals, Chief Justice Murray writing the majority opinion and Justice Barrow dissenting, affirmed the trial court. (350 S. W.2d 397). It is the opinion of this court that the judgment of the trial court and Court of Civil Appeals should be reversed and custody of the children awarded to their father, James V. Short, Jr.

James and Barbara Short were married in New Mexico in 1956. One year afterward their son was bom. On September 6, 1958, their daughter was born. Two weeks later the couple separated and have not lived together since that time. In June of 1959 a divorce was granted the wife and she was awarded custody of the children. Thereafter, James Short, the father, instituted proceedings to have the custody of the children changed. On June 22, 1960, hearing was had in Lea County, New Mexico, and an “Order Modifying Judgment” was issued by the court which stated that the father requested custody because of the mother’s conduct and “that it would be to the best interest of the children that the custody be taken from the mother, plaintiff, and given to their father, defendant.” This order was not filed until August 30, 1960, but this unexplained fact has no bearing in this suit.

Immediately after the hearing and before the order was filed, (but with knowledge of the court’s decision) the mother took the children from the home of neighbors where they had been staying, and with one W. E. “Cotton” Wood (a married man with four children) left New Mexico, traveling over several states, and finally settling in Alice, Texas, in the home of respondent’s aunt.

Respondent lived in Alice about three months prior to this trial, solely dependent upon her aunt, and uncle.

Subsequent to the mother’s departure, petitioner moved from New Mexico to Lincoln, Nebraska. This was a transfer for a better position.

Petitioner’s first point of error questions the Texas court’s jurisdiction to award custody of the children in the face of the valid New Mexico decree, or alternatively1 whether there was an abuse of discretion by the trial court in taking jurisdiction. We believe under the facts of this case jurisdiction to award custody was in the trial court.

However, in so holding, we also agree with the language in Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1, which says:

“The foregoing [decision that a Texas court had jurisdiction] does not, of course, mean that our courts should take jurisdiction to award custody in every case where the child and the parties contending for its possession happen to be here before the court. * * * We certainly do not imply that our courts should be accessories after the fact to disorderly practices of individual parents or others who thus seek to avoid the normal processes of justice by ex parte determination of what they happen to consider a more propitious forum.”

In the case at bar, however, petitioner invoked the jurisdiction of the Texas court by bringing the habeas corpus proceeding in Jim Wells County. He cannot now be heard to complain of the taking of such jurisdiction. Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79.

Petitioner’s second and third points of error complain of the majority opinion of the Court of Civil Appeals which holds: 1) that there was such a material change of conditions that the valid custody award of the New Mexico court should be changed; 2) the burden of proof was upon the petitioner to prove the mother was positively unfit to care for the children. These points will be discussed in reverse order.

The New Mexico court found “that it would be to the best interest of the children that custody be taken from the mother, plaintiff, and given to their father, defendant.” This decree has not been attacked by respondent. The reasoning of the dissent in the court below (350 S.W.2d 397, 402) is sound on this question. While agreeing with the majority that ordinarily there should be a positive showing'- that the mother is unfit to keep her children, Judge Barrow goes1 on to say:

“But when a court of competent jurisdiction, in a proceeding in which the mother was present and represented by counsel in a full and fair hearing, has found and rendered judgment that she has so conducted or misconducted herself as to positively disqualify herself to have such custody, the judgment is res judicata and extinguishes her right and privilege. The burden of proof is on her in a subsequent proceeding to show material changes that require, in the interest of the children, that their custody be changed.”

See 20 Tex.Jur.2d 691, Divorce and Separation, § 370, and cases cited, n. 17.

We are also of the opinion that the mother, Barbara Short, failed to prove that conditions have so materially changed since the New Mexico order that it would be for the best interests of the children to require a change of custody back to her.

It is this court’s belief that the father’s move from New Mexico to Nebraska for a better job is not a material change warranting the overturning of a valid decree of a sister state. Nor is the fact that the paternal grandmother will be required to move temporarily to Nebraska to care for the children and possibly hire a nursemaid for their care such a change.

A showing of only slight change of conditions is not sufficient grounds to change custody of children. Frequent custody hearings are discouraged and not encouraged. It is our opinion that the trial court abused its discretion in taking custody of the children from their father and awarding it to their mother. Leonard v. Leonard, 218 S.W.2d 296 (Tex.Civ.App., no writ hist.)

It is the order of this court that the judgments of the Court of Civil Appeals and trial court be reversed and the custody of the children awarded to their father, James V. Short, Jr. It is also our opinion that the past acts of respondent in disregarding valid court orders places this case in an exceptional category. Under the authority of Rule 515, Texas Rules of Civil Procedure, we deny respondent the right to file a motion for rehearing in this cause. We further direct the district judge of Jim Wells County, Texas, to issue a warrant, as authorized by Art. 129, Texas Code of Criminal Procedure, to the sheriff of Jim Wells County, Texas, to take and bring said children, James E. Short and Sherrie Lynn Short, before said district judge without delay, to be dealt with according to this opinion.


author: MORRISON, Judge.

text:
    Manuel H. MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 34279.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1962.

      John W. O’Dowd, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Edward N. Shaw, Jr., Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State
   MORRISON, Judge.

The offense is rape; the punishment, SO years.

In view of our disposition of this appeal, a statement of the facts will not be deemed necessary other than to state that formal bill of exception No. 2 recites that during the cross-examination of the prosecuting witness appellant developed that the witness had previously made a written statement to the police and district attorney concerning the offense on trial. Appellant made a request upon the prosecutor to furnish such statement to him for the purpose of cross-examination and possible impeachment of the witness. This was denied, and appellant then asked the court to instruct the prosecutor to turn the statement over to the court reporter so that it might be incorporated into the record as a part of his bill of exception “ * * * so the appellate court might see what was contained in the statement * * This was also denied even though it was stipulated that the prosecutor had the statement in his possession.

Formal bill of exception No. 3 recites that appellant followed the same procedure in regard to a written statement made by the State’s fourth witness, Mercedes Singleton.

This is the same question which was presented in the recent cases of Gaskin v. State, No. 33,909, Tex.Cr.App., 353 S.W.2d 467, and Pruitt v. State, No. 34,207, Tex.Cr.App, 355 S.W.2d 528. In Pruitt, supra, we said: .

“ * * * such statement should have been made available for the record for the purpose of showing injury, if there was injury, and that the refusal of counsel for the State to make available the statements or reports which appellant’s counsel was not permitted to inspect, deprived appellant of the opportunity to show, if he could, that he was prejudiced by the court’s refusal to require the statements to be produced.”

In Gaskin, supra, we said:

“The rule applies where demand is made after the witness has testified on direct examination and is for the purpose of cross-examination, and possibly impeachment purposes, whether the statement has been used by the witness before trial to refresh his memory or not.”

For the error of the court in failing to permit appellant to perfect his bill so that he might show injury, if any occurred, the judgment is reversed and the cause remanded.


author: DICE, Commissioner.

text:
    Prosper Adam DWORACZYK, Appellant, v. The STATE of Texas, Appellee.
    No. 34411.
    Court of Criminal Appeals of Texas.
    March 7, 1962.

      Hal: J; -Putman and James V. Mondin, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, 3 days in jail and a fine of $50.

Officer Archie Williams testified that on the night in question he observed the appellant driving his automobile upon W. W. White Road in the City of San Antonio and after pursuing him for several blocks stopped him for speeding. The officer testified that when he went to the automobile, appellant appeared to be intoxicated and after he observed that appellant’s eyes were watery, his speech was slurred and that he had difficulty in walking, he took appellant to the police station and booked him for Driving While Intoxicated. Officer Williams further testified that in his opinion appellant was at such time intoxicated.

As a witness in his own behalf, appellant admitted having had a few beers prior to his arrest but stated that he thought he was sober. Witnesses were called by appellant who testified that they had observed appellant during the afternoon and expressed their opinions that at such time he was sober.

The jury resolved the disputed issue of intoxication against appellant and we find the evidence sufficient to sustain their verdict.

Appellant’s sole contention on appeal is that the court erred in refusing to permit him to ask each prospective juror on voir dire examination of the jury panel the following question: “At present do you engage in any form of athletics, particularly bowling ?”

While an accused is allowed great latitude in his voir dire examination of prospective jurors to determine whether a peremptory challenge will be used, there is nothing in the record which shows that the question sought to be propounded to . the jurors relative to their participation in athletics had any relevancy to the inquiry; hence no abuse of discretion on the part of the trial court is shown.

Furthermore, the record does not show what the answers of the prospective jurors would have been or that any juror served on the jury who was objectionable to appellant. In the absence of such a showing no reversible error could be predicated upon the court’s ruling. Yelton v. State, 75 Tex.Cr.R. 38, 170 S.W. 318; Williams v. State, 147 Tex.Cr.R. 178, 179 S.W.2d 297 and Lehman v. State, Tex.Cr.App., 354 S.W.2d 586.

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

Opinion approved by the Court.


text:
    Ralph Gilbert ACUFF, Appellant, v. The STATE of Texas, Appellee.
    No. 34208.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1962.
    Ralph Gilbert Acuff, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is passing as true a forged instrument; the punishment, 5 years.

Mrs. Stockard, an employee of The Fair store in Fort Worth, testified that on the day in question appellant purchased some underclothes and tendered a check in the sum of $75.00 in payment thereof, identifying himself as James Powell; that she asked appellant to accompany her to the manager’s office in order for him to approve the check; that he did so and, following a conversation with Mr. Ray, the manager, the check was approved and she delivered the merchandise and more than sixty dollars in change to appellant. She identified State’s Exhibit #1 as being the check presented to her and testified that some two or three weeks later she attended a lineup at the Fort Worth police department, where she identified appellant from a group of six or seven men.

Cecil Ray testified that Mrs. Stockard and appellant appeared at his office and tendered State’s Exhibit # 1 for approval; that appellant, upon being questioned, stated that he lived at Aledo, Texas, and was employed by a construction company, presented a driver’s license; and that upon the strength of this, plus the fact that appellant was dressed as a construction worker, he approved the check for cashing. He set the date of the transaction as late in the afternoon of October 5 and testified that sometime later he witnessed a lineup at the Fort Worth police department and there identified appellant as the man who had presented the check at his store.

Robert Sayles, a veteran employee of the First State Bank of Tuscola, identified State’s Exhibit #1 as being a counter check used by his bank which had been altered by the addition of the printed number “7837” and the printed words'“Cashier’s Check not to exceed $100.00” and the printed word “By”-preceding the signature. He testified that his bank had never during his sixteen years of employment issued a cashier’s check and that they had no person employed at the bank with a name similar to that appearing on the check in question.

Deputy Sheriff Miller of Parker County testified that she hdd made an intensive investigation in the vicinity of Aledo and was unable to find any James Powell, Route 1, Box 406, as State’s Exhibit #1 was endorsed.

Appellant called two witnesses with whom he had worked for a short period of time, who testified as to his reputation, and appellant testified that he did not pass the check in question but was at the time fixed by Mr. Ray in either Cisco or Eastland, Texas, having his automobile repaired. He admitted prior convictions for forgery.

The jury resolved the dispute in the evidence against appellant, and we find it sufficient to support the conviction.

Appellant presented what he denominated a motion to dismiss the indictment, alleging that he had been arrested illegally and that certain property had been unlawfully taken from his custody. The State assured the court that no property taken from the possession of appellant would be offered in evidence, and the motion was by the court overruled. A similar contention was before this Court in Hildebrand v. State, 115 Tex.Cr.R. 245, 29 S.W.2d 774. There, we said:

“An indictment is in no way related to or based on the search warrant, but is the act of a grand jury, and the trial court did not err in refusing to quash same herein because of alleged irregularities in the affidavit for search warrant and the warrant itself.”

See also Parker v. State, 142 Tex.Cr.R. 50, 151 S.W.2d 205. '

At the close of the State’s case; appellant asked for a delay so that the sheriff might locate an unnamed witness who worked at a garage in either Cisco or Eastland whom he contended could support his defense of alibi. The court held that sufficient diligence had not been demonstrated, and we agree with such holding.

Finding no reversible error, the judgment of the trial court is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Robert CABALLERO, Appellant, v. The STATE of Texas, Appellee.
    No. 34258.
    Court of Criminal Appeals of Texas.
    March 7, 1962.

      No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Carol S. Vance, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Upon his plea of guilty before the court, a jury being waived, appellant was found guilty of assault with intent to murder with malice, and assessed a punishment of IS years.

By agreement the case was tried jointly with two other felony charges against appellant, one for burglary and the other for felony theft, and the record shows that appellant was under a 10 year sentence when these cases were tried.

The trial judge did not see fit to follow the recommendation of the assistant district attorney prosecuting the case, that the punishment be assessed at 10 years in each of the three cases, but assessed the 15 year term appealed from and assessed a 5 year term in each of the other cases. The appeal is from the conviction for assault with intent to murder only.

None of the sentences were cumulated.

The trials being joined, we overrule the state’s contention that the statement of facts should not be considered because it is combined with the statement of facts in the other cases jointly tried.

By agreement of appellant and his counsel, the state introduced in evidence the testimony of Laymon Matthews, the injured party named in the indictment, given at the examining trial, which includes the following.

Matthews lost his way and drove onto a dead end street shortly before midnight. Before he got back to the intersection his car stopped and, because the battery was dead, he was unable to start it, so he walked to the intersection where he encountered appellant and his two companions who asked him what was wrong.

Matthews told them his car would not start, and appellant’s companion George Hermosillo Jr. said they would give him a push if he would take them home. The four then went to the car and began to push, Matthews on the left at the open car door, appellant on the opposite side and his companions in the rear. Appellant and his companions were talking in Spanish, which Matthews did not understand.

Appellant then came around behind Matthews and put a knife in his back. Matthews did not see the knife but testified that he knew “it was a small blade”.

Matthews further testified that appellant struck him three times with the knife; stabbed him; pulled it out and hit again, and he (Matthews) ran to the intersection and appellant ran after him; “I ran so fast he stumbled. He lost his hat. I ran to a policeman. I didn’t see them after that.”

Matthews further testified that appellant stabbed him in the back and in his side, around his spleen, as a result of which he was taken to a hospital where an anesthetic was administered and where he remained for 8 days.

Where there is no evidence to show that the weapon used was a deadly weapon per se, the intent of the party making the assault may be arrived at from the surrounding facts. “If it was possible that death might have been inflicted by the weapon, and the defendant intended to take life, though the weapon was not a deadly weapon, still he might be guilty of an assault with intent to murder.” Franklin v. State, 37 Tex.Cr.R. 113, 38 S.W. 802, 1016. See also Jackson v. State, 48 Tex.Cr.R. 648, 90 S.W. 34, cited with approval in Basquez v. State, 114 Tex.Cr.R. 602, 26 S.W.2d 206; Ammann v. State, 145 Tex.Cr.R. 34, 165 S.W.2d 744; King v. State, 153 Tex.Cr.R. 422, 220 S.W.2d 647; and Moseley v. State, 158 Tex.Cr.R. 623, 259 S.W.2d 225.

From all the facts and circumstances, the trial judge was authorized to conclude that' appellant intended to kill Matthews, as he confessed by his plea of guilty, and was making fair progress toward the accomplishment of that end by use of the knife when he was interrupted by Matthews’ flight and his inability to overtake him before he reached an officer.

There was no evidence showing or tending to show that appellant was not guilty of the offense charged, as was the case in Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460.

The evidence is deemed sufficient to sustain the conviction upon appellant’s plea of guilty, and we find no error.

The judgment is affirmed.


author: McDonald, judge.

text:
    Cecil Leslie GRIFFITH, Appellant, v. The STATE of Texas, Appellee.
    No. 34349.
    Court of Criminal Appeals of Texas.
    March 7, 1962.
    Stewart & White, by Thomas D. White, and Hector Azios, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Frank B. Davis, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The conviction is under Art. 535d, Vernon’s Ann.P.C. for the offense of fondling; the punishment, 3 years confinement in the penitentiary.

In view of our disposition of the case a summary of the facts is unnecessary.

The first count of the indictment, which was the only count submitted to the jury, charged that appellant did “with lascivious intent intentionally place his hands and the fingers of his hands upon and against the sexual parts” of the female person named therein, then under the age of fourteen years.

The jury returned the following verdict which was received by the court:

“We, the Jury, find the defendant guilty of the offense of molesting and assess his punishment at confinement in the State penitentiary for a period of THREE years”.

Upon such verdict, judgment was entered finding appellant “guilty of the offense of Unlawfully with lascivious intent, intentionally place his hands and the fingers of his hands upon and against the sexual parts of a female person under the age of fourteen years, a felony, as found by the jury”.

Sentence was duly pronounced in accordance with the jury’s verdict and judgment entered thereon by the court.

The verdict returned by the jury finding appellant guilty of the offense of “molesting” is clearly not responsive to the crime charged in the first count of the indictment. By their verdict, the jury did not find appellant guilty of the offense of fondling as charged in said first count. Such verdict, not being responsive to the crime charged and submitted to the jury was a nullity and could not support the judgment and sentence entered by the court. 42 Tex. Jur., par. 364, page 465. Tarkenton v. State, 138 Tex.Cr.R. 292, 135 S.W.2d 716 and Tyson v. State, 142 Tex.Cr.R. 461, 154 S.W.2d 477.

For the want of a valid verdict, the judgment is reversed and the cause remanded.


text:
    Jefferson D. GALAWAY, Appellant, v. The STATE of Texas, Appellee.
    No. 34397.
    Court of Criminal Appeals of Texas.
    March 7, 1962.
    No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Erwin G. Ernst, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant and his co-indictee, Alfred Arnold, were jointly charged by indictment with the offense of unlawfully possessing a narcotic drug, to-wit: marijuana.

Upon a severance being granted, appellant was separately tried and convicted upon his plea of guilty and the jury assessed his punishment at confinement in the penitentiary for a term of 25 years.

Upon the trial the State called Narcotic Officers Stringfellow and Gray of the Houston Police Department who testified that on the day in question they observed the appellant and Arnold seated in an automobile in the 2800 block of St. Charles Street, and that as they approached appellant threw seven white cigarettes from the car and Arnold dropped a tin foil package to the ground which contained thirteen cigarettes. Officer Stringfellow expressed his opinion that the seven cigarettes thrown from the car by appellant were marijuana cigarettes and it was stipulated that if Chemist Floyd McDonald were present to testify he would have testified that he ran tests on the cigarettes and that in his opinion they were marijuana.

Appellant testifying as a witness in his own behalf, admitted his possession of the seven marijuana cigarettes and testified that he had just purchased them from Arnold for his own use.

There are no formal bills of exception and no brief has been filed on behalf of appellant.

The informal bills of exception appearing in the record have been examined and do not present error.

The judgment is affirmed.

Opinion approved by the Court.


author: POPE, Justice.

text:
    GULF COAST MINERALS MANAGEMENT CORPORATION, Appellant, v. Jimmy B. MYERS, Appellee.
    No. 13889.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 21, 1962.
    Rehearing Denied March 21, 1962.

      King, Anderson & Porter, William R. Anderson, Jr., Corpus Christi, for appellant.
    Nye, Cohn & Morris, Corpus Christi, for appellee.
   POPE, Justice.

Plaintiff, Jimmy B. Myers, obtained a summary judgment. Defendant, Gulf Coast Minerals Management Corporation, on appeal insists that it should have obtained a summary judgment. The appeal concerns the meaning of a contract. During September, 1960, plaintiff, Myers, wrote a farm-out letter to Gulf Coast. The letter stated the terms by which Gulf Coast could acquire mineral rights to described property in Jim Wells County. The first paragraph of the letter stated:

“This letter when accepted by you will evidence the understanding and agreement by and between Gulf Coast Minerals Management Corp., hereinafter called ‘Gulf Coast’, and Jimmie B. Myers, under which agreement, Gulf Coast may earn certain rights, title and interest in and to that certain leasehold estate, hereinafter described, subject to the reservations hereafter contained, all in accordance with the following terms, to-wit:”

Those conditions by which Gulf Coast “may earn” were then detailed as (1) its payment of $500.00 upon acceptance of the letter contract, (2) payment of an additional $2,000.00 within thirty more days or when it began drilling operations, whichever was sooner, and (3) the commencement of drilling operations on the tract within sixty days. Subsequent provisions of the letter stated the terms for the drilling operations. Gulf Coast accepted the terms and paid the $500.00 but did nothing further. Plaintiff then sued for the recovery of the $2,000.00. Whether that was owing under the contract is the sole point in the case.

Gulf Coast was under no duty to pay the $2,000.00. The contract gave it the power, if it so willed, to make that payment and commence drilling and thereby gain the rights stated in the contract. The words “may earn” were not compulsive. Instead, they were permissive, and Gulf Coast could either gain the rights or lose them, as it willed. State v. Clements, Tex.Civ.App., 319 S.W.2d 450; Kleck v. Zoning Board of Adjustment of San Antonio, Tex.Civ.App., 319 S.W.2d 406.

The judgment is accordingly reversed and rendered that plaintiff take nothing.


author: NORTHCUTT, Justice.

text:
    D. W. LEWTER et al., Appellants, v. Charles PARKER, D/B/A Plains Manufacturing & Equipment Company, Appellee.
    No. 7102.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 19, 1962.
    Rehearing Denied March 26, 1962.

      Crenshaw, Dupree & Milam, Lubbock, for appellants.
    Wagonseller & Cobb, Lubbock, for ap-pellee.
   NORTHCUTT, Justice.

This is a suit brought by Mr. Charles Parker, hereafter referred to as appellee, against Mr. D. W. Lewter, et al., hereafter referred to as appellants, to recover the contract price under the terms of a contract for the construction of a vacuum air lift.

The air lift was constructed by appellee at appellants’ place of business for the purpose of lifting various types of meal, etc. from trucks into storage tanks or bins. The principal issue here involved is whether appellee installed a vacuum air lift capable of lifting as much as 1000 pounds of cottonseed meal per minute to the storage bin over a .reasonably continuous period if competently operated.

The case was submitted to a jury upon 4 Special Issues. The first issue inquired if the vacuum air lift installed by appellee was capable of lifting as much as 1000 pounds of cottonseed meal per minute to the storage bins over a reasonably continuous period if competently operated. The jury answered “yes.” The trial court found that the answers of the jury to issue No. 2 was not supported by the evidence, and by so holding, Issues Nos. 2 and 3 were not further considered and are not here involved. Issue No. 4 was to be answered only if the jury answered Issue No. 1 “no.” Consequently, the judgment of the court was rendered solely upon the answer of the jury to Issue No. 1.

The appellee agreed to construct a vacuum air lift capable of lifting as much as 1000 pounds of cottonseed meal per minute to the storage bins and testified this was to continue over a reasonably continuous period, if competently operated, and to install proper electric switches and place the wiring in conduits. The appel-lee never installed the electric switches and did not place the wiring in conduits. Since appellants had informed the appellee that they would not accept the air lift because it would not deliver 1000 pounds as contracted, and appellee contending the air lift would deliver the 1000 pounds as contracted, we are of the opinion that if appellants were not going to pay appellee even if he did install the switch and place the wiring in conduits, that would be a useless thing for appellee to do. The ap-pellee testified that it would cost $1,536.71 to install the switch and enclose the wires in conduits and ask the court to deduct that amount from the contract price of $10,000.-00. The court granted appellee judgment for the $10,000.00, less the $1,536.71, and also other relief not necessary to consider here. From that judgment the appellants perfected this appeal.

The appellee seems to have totally abandoned the project in its present condition and insists that the air lift will deliver the 1000 pounds per minute as he had contracted to do. A contract to furnish an air lift to deliver 1000 pounds per minute is not performed by furnishing an air lift that' will only lift from 500 to 600 pounds per minute. Hall v. Nunn Electric Co. et al., Tex.Civ.App., 183 S.W. 13; Uvalde Rock Asphalt Co. v. Fantham et al., Tex.Civ.App., 210 S.W.2d 646; American Water Co. et al. v. Bunge et al., Tex.Civ.App., 213 S.W.2d 93 (Writ Refused N.R.E.); Cotherman v. Oriental Oil Co., Tex.Civ.App., 272 S.W. 616.

The main issue to be here determined is whether there is any evidence or at least sufficient evidence to sustain the findings of the jury that appellee had complied with his contract to install an air lift capable of lifting at least 1000 pounds of cottonseed meal per minute and put into proper bins or storage tanks. Appellee acknowledged that the contract required him to install an air lift capable of lifting 1000 pounds as covered by Special Issue No. 1 above mentioned, and to average 1000 pounds per minute to unload a truck, providing it was fed right. Appellee testified the mill foreman told him that each foot across the bed of the truck would be approximately 1000 pounds. The court sustained an objection as to what the foreman said and instructed the jury not to consider it. Based upon that information, the appellee testified one time he pulled off 6 feet of meal in 5 minutes which would average over 1000 pounds per minute. There is some evidence as to the length of the truck beds being 34 feet long and the weight of the meal per load being from 30,000 to 36,000 pounds. The only evidence shown where appellee unloaded a full truck load of meal was at the average per minute of 500 pounds. One of the appellants testified that in a 5 minute period, in the beginning, you could get 1000 pounds but for 10 minutes you could not and 20 minutes it would be even less.

Under this record it was clearly understood, even before the contract was entered into, that if the air lift did not deliver 1000 pounds per minute it would be worthless to appellants. The appellee testified that in his first talk with appellants' supervisor and equipment engineer he was told that it would not do them any good unless the air lift would produce at the rate of 1000 pounds per minute, and if it was less than that, it would not serve their purpose and they didn’t want it.

It was required of appellee to plead and show by testimony that he complied with the terms of the contract to furnish an air lift capable of delivering 1000 pounds per minute. It is stated in the case of Crane v. Colonial Holding Corporation, Tex.Civ.App., 57 S.W.2d 316, as follows:

“Manifestly, his services would be worthless to defendant if any part of the obligation resting upon him were not performed, and the general .rule is that a party suing upon a contract must recover upon the identical contract alleged or not at all. In so far as his right to recover upon the express contract is concerned, he must show by his testimony that he has discharged the obligations in full which rested upon him or he cannot recover. Hillmer v. Asher (Tex.Com.App.) 29 S.W.(2d) 1011; McConnell v. Payne & Winfrey (Tex.Civ.App.) 229 S.W. 355; Morris v. Kasling, 79 Tex. 141, 15 S.W. 226, 11 L.R.A. 398.”

To the same effect is the case of Federal Sign Company of Texas v. Fort Worth Motors, Inc., Tex.Civ.App., 314 S.W.2d 878, where it is stated:

“ ‘Where one party seeks to enforce performance of a contract or to recover damages for a breach thereof, and the contract contains mutual covenants or requires him to do an act to entitle him to the action, he cannot maintain such action without alleging and proving performance or tender of performance on his part, unless such performance has been excused.’ Investors’ Utility Corporation v. Challacombe, Tex.Civ.App., 39 S.W.2d 175, 179. See, also, Gerlach-Barlow Co. v. Patton, Tex.Civ.App., 281 S.W. 242; Crane v. Colonial Holding Corporation, Tex.Civ.App., 57 S.W.2d 316.”

We are of the opinion and so hold that the evidence in this case was insufficient to sustain the findings of the jury in answer to Issue No. 1. Judgment of the trial court is reversed and remanded.


author: COLEMAN, Justice.

text:
    Mary GRAY, Appellant, v. Leemon H. GRAY, Appellee.
    No. 13898.
    Court of Civil Appeals of Texas. Houston.
    March 1, 1962.
    Rehearing Denied March 22, 1962.
    Divine, Musick & Bennett, C. C. Divine, Houston, for appellant.
    Lee & Forbes, Arthur L. Forbes, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from a judgment dismissing a suit for divorce for want of jurisdiction.

Mary Gray filed suit for divorce and for certain ancillary relief, including temporary child support. Leemon H. Gray answered with an unsworn plea to the jurisdiction of the court, alleging that the plaintiff and the defendant were not married. At a hearing on temporary child support, the court first heard the plea to the jurisdiction and dismissed the case.

Appellant urges that the trial court erred in sustaining the plea to the jurisdiction, and thereby disposing of the entire case, at the ancillary hearing.

A suit for divorce presumes a valid marriage. Garcia v. Garcia, 232 S.W.2d 782, Tex.Civ.App. At the trial on the merits the plaintiff must prove by a preponderance of the evidence that she was married to the defendant. Ex parte Threet, 333 S.W.2d 361, Tex.Sup.Ct.

“It is familiar law that jurisdiction is the power to hear and determine a controversy. * * *
“It would seem that the defendants have proceeded upon the theory that they could establish want of jurisdiction in the Court by showing upon a hearing on the plea to the jurisdiction that certain fact allegations were untrue. They did not stand upon the proposition in the trial court that, as a matter of law on the face of the pleadings, the Court had no potential jurisdiction to hear the case. Their plea contemplated a hearing on the facts * * *. They argue here that ■“in view of the allegations of the petition, and the evidence introduced on the hearing on the plea to the jurisdiction’ the Court had no jurisdiction to hear the case. The jurisdiction of a court is not to be determined on that basis. In passing on the plea to its jurisdiction the Court was not authorized to base its ruling upon the conclusion drawn from the evidence that * * Jud v. City of San Antonio, 143 Tex. 303, 184 S.W.2d 821.
“The jurisdiction of the court cannot be defeated when the case stated in the petition is within its jurisdiction, unless it is made to appear that the allegations upon which the jurisdiction depends were fraudulently inserted in the petition for the purpose of conferring the jurisdiction. Such fraud exists when the jurisdictional averments are not only untrue, but are made by the pleader for the purpose of deceiving, and without being believed to be true.” Hoffman v. Cleburne Bldg. & Loan Ass’n et al., 85 Tex. 409, 22 S.W. 154.

Defendant has not contended that plaintiff’s allegation of a valid common law marriage was fraudulently made for the purpose of conferring jurisdiction on the trial court. Since plaintiff has alleged a cause of action within the potential jurisdiction of the trial court, no issue has been raised which properly may be determined by hearing evidence in a preliminary trial. C. R. Garner Co. v. Riley, 238 S.W. 953, Tex.Civ.App.; McDonald, Texas Civil Practice, Vol. 2, § 7.07, pp. 618, 619.

The evidence of an undissolved ceremonial marriage between defendant and a third party contracted prior to the alleged common law marriage constitutes a matter of defense on the merits. Such evidence, if believed by the trial court, would defeat plaintiff’s requested temporary relief, Ex parte Threet, supra, but it could not authorize the dismissal of plaintiff’s entire suit.

The judgment of the trial court is reversed and remanded.


author: ARCHER, Chief Justice.

text:
    Earl FAIN, Jr., Appellant, v. TEXAS-HANOVER OIL COMPANY, Appellee.
    No. 10911.
    Court of Civil Appeals of Texas. Austin.
    Feb. 14, 1962.
    Rehearing Denied March 7, 1962.

      Kilgore & Kilgore, Kiel Boone, Dallas,, for appellant.
    Neill, Blanks, Lewis & Logan, San Angelo, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the District Court based on a jury verdict in answer to the first four Special Issues in favor of appellee and against appellant for $8,105.18, with interest at the rate of six percent from the date of judgment and for foreclosure of a mechanic’s lien as against Earl Fain, Jr. and Rupert C. Thompson, Jr., upon an undivided %2ths part of the interest of the lessee in an oil and gas lease upon the Juan Hernandez Survey No. 347 in Runnels County and certain casing and tubing and that the proceeds of a cashier’s check for $7,592.68 (fully identified) be applied to the payment of the judgment.

The appeal is founded on seven points and are that the Court erred in submitting as a fact issue the question of consent to the relocation of the well where such issue was only as to an evidentiary element; that there was neither sufficient evidence nor any evidence in support of the jury’s answer; in permitting plaintiff’s President to testify as to his intention in the execution of an agreement amounting to an accord and satisfaction of the controversy; in submitting definitions and issues amounting to a comment on the evidence; in failing to require the plaintiff’s counsel to fully open the case in argument; in allowing plaintiff interest, and finally in denying defendant a recovery on his cross action.

Texas-Hanover Oil Company, appellee herein, filed the suit, out of which this appeal grows, against Earl Fain, Jr., appellant herein, for $7,592.68 with six percent interest and for foreclosure of a mechanic’s lien on %2ths interest in an oil, gas and mineral lease, casing and tubing, and alternatively for the title and possession of the tyi2th.s interest in the lease on Survey No. 347, together with the application of the proceeds of a cashier’s check.

On June 2, 1959 Earl Fain, Jr. and others not involved in this appeal made an agreement with Texas-Hanover Oil Company to drill an oil or gas well on certain terms and conditions, none of which except item No. 1 is in question. Item No. 1 reads as follows:

“The well is to be located 3300 feet from the Northeast line and 660 feet from the Northwest line of said Juan Hernandez Survey No. 347, above described.”

The well was actually drilled and completed at another location some 2530 feet approximately from the Northeast line and it is the relocation of the well which is at issue in this appeal.

The appellee asserts that the original location was in a low place in a field and that the owner of the growing crops wanted the well at another place and that Mr. Harris talked to Mr. Fain and Mr. Cannon, the geologist on the well, by long distance telephone in New Mexico and his testimony in part is as follows:

“A I said, ‘Earl, I talked to Mr. Currie, and he has asked us to move the location of the well to a higher ground; that it will be a bog if it rains, and he would lose a lot of good valuable feed for his cattle, and they were now grazing in there, and he would appreciate it if we would move it.’ I told him I would see what I could get done. And Earl Fain said, “Well, I don’t remember what’s in the contract.’ And, I said, ‘Well Earl, I don’t remember what’s in the contract either; I don’t have it here at the house, but I do think this, that if we can accommodate the man we ought to do it.’ He said, ‘Well, Bob — you will have to talk with Bob Cannon about that; he is the geologist on that job, and if it don’t hurt the play any by moving it,’ he said, ‘that might be all right.’ So, Bob Cannon came to the phone and he said it wouldn’t make a bit of difference to move it any direction geologically it wouldn’t. So, I said, ‘Bob, I am going to move it if I can get Carson’s and Black’s permission.’ The next day I called Carson and Black in Midland, and they both agreed, and I went out and moved it.
“Q Did you drill the well, then, at the changed location?,
“A Yes.
******
“Q Roger, in some of Mr. Fain’s papers filed in this case, called pleadings, he has said that in the conversation you had with him over the telephone when you were in San Angelo and he was in New Mexico, that he told you that if you changed that location it would have to be at your own risk, and you agreed to that; was anything said about that?
“A Nothing; no.
“Q Did he ever say anything of that effect to you about it until after the deal, well had been completed and capped?
“A Not until we got down to paying the bills.
“Q And are you positive which of those gentlemen you talked to first, and which you talked to last?
“A I talked to Fain first.
“Q And Cannon next?
“A That’s right.
“Q Did you talk to Mr. Fain after you talked to Bob Cannon?
“A I did not.
“Q And what was it Cannon said to you?
“A Cannon said it would not make a bit of difference if we moved the location, one location in any direction; it would not make a bit of difference geologically, and in our chances for finding oil.
“Q What was it you had said to Fain about changing the location ?
“A I told him my conversation with Mr. Currie and that I strongly recommended we change it, if it would help him, help Mr. Currie.
“Q What did Mr. Fain say?
“A And Mr. Fain says, that will be a matter, or words to that effect, the changing of the location would have to be left up to Bob Cannon; it is his deal, and he is the geologist; and I said, let me talk to Cannon, and I talked to Cannon and Cannon told me it wouldn’t effect it one way or the other.”

R. L. Cannon, the geologist on the well testified in part:

“Q Let’s get back to the telephone conversation the week of July 18, 1959; recall, if you can, and as nearly possible as you can, Mr. Cannon, what transpired in connection with that conversation.
“A Well, we were at dinner, Mr. Fain and I, and there was a telephone call for us, and Mr. Fain went to the phone and talked and came back and told me it was Mr. Harris.
“Q About how long was that that Mr. Fain was gone in answering the telephone call, long distance?
“A Well, it wasn’t a long conversation. I don’t know how long. I couldn’t tell you how long it was, but I wouldn’t consider it a long conversation.
“Q Mr. Fain came back and gave you a message? I can’t go into what he told you.
“A He told me—
“Q I can’t go into that.
“A He told me Roger Harris was calling, and would like to talk to me.
* * * ⅜ * *
“Q Mr. Cannon, I hand you what has been marked Plaintiff’s Exhibit No. . 23 that purports to he a copy of a letter dated October 14, 1959, addressed to Earl Fain, Jr.; did you write that letter, Mr. Cannon?
“A Yes, sir. I believe this is the letter I wrote on that.
“Q All right, sir; just to keep it in context it is a brief letter, I will read it. ‘Dear Mr. Fain: It is my understanding that the responsibility for the overseeing of the payment of the bills on Texas Hanover No. 1, Lyle Currie, has been shifted to Mr. John Tester, attorney at law. In that case my responsibility is only that of a professional geologist in charge of the well. The well was drilled in satisfactory fashion to 4712 feet, and in my opinion all shows of oil were tested. The location was changed because of the situation on the land, and I approved its change from a geological standpoint. Very truly yours, R. L. Cannon.’ That was a statement of what your position was ?
“A Yes, sir.
* * * * * *
“Q O.K.; Mr. Cannon, the well was drilled in a completely satisfactory manner to you, wasn’t it, sir?
“A Yes, sir, it was all right.
“Q And the moving of the location did not make any difference to you at all did it, so far as your thinking was concerned, with respect to its prospects ?
“A That’s correct.
“Q You just as soon had it drilled where it was drilled as down in the field, hadn’t you?
“A Yes, sir.
“Q Now, then, did you have an interest in that lease?
“A Yes, sir.
“Q A 32nd override ?
“A Yes, sir. My brother and I had a 32nd override, together.
******
“Q You yourself never heard, never heard Mr. Fain say a word about Roger having to do that on his own responsibility, did you, sir, if he changed the location ?
“A What was that?
“Q That is strange language to you isn’t it?
“A That question didn’t come up at that time, if that is what you mean.
“Q About Roger assuming the responsibility of it, that didn’t come up, did it, in that conversation?
“A The only thing I recall there was just hearing Fain say, T will not agree to any change of the location which would affect my contract with you.’
***** *
“Q There wasn’t anything said, as far as you heard in that conversation between Fain and Harris, about any of the people that Fain had as silent partners, was there?
“A I don’t recall anything.
“Q You just didn’t hear a thing about those other people, did you, in that conversation between Fain and Harris ?
“A No, I don’t recall any in that conversation.
******
“Q When he got out there he noticed the change in the location, didn’t he?
“A Yes.
“Q Now, then, with Mr. Harris present and Mr. Fain present, at any time you didn’t hear Mr. Fain say, ‘Mr. Harris, I am repudiating this location,’ did you ?
“A ’ No.
“Q Now,' then, as a matter of fact when it looked like you had a well there Mr. Fain was quite happy, wasn’t he?
“A I would say all of us were happy when we thought we had oil.”

Mr. Fain testified as to the contract location of the well to be 3300 feet from the northeast line and 660 feet from the northwest line of Survey 347 and as to the respective interests in the property. He further testified as to the relocation of the well and particularly as to a telephone conversation with Mr. Harris when the witness and Bob Cannon were in New Mexico and that he heard Mr. Cannon say that the move of the well location was satisfactory with him geologically; that he, Fain, told Harris that he had a contract with other people and would not do anything to violate or change the contract and that if he, Harris, wanted to move it to get it up on a hill to save money, it will have to be at Harris’ responsibility because he was not going to agree to it.

Mr. Fain was present when tests were being made and did not register any objections to the relocation of the well.

Harris testified:

“Q I will tell you, we will get around to that directly. Now, then, you stated that you phoned Black and Carson ?
“A Yes.
“Q And was that agreeable with them?
“A Yes.
“Q After that, then, you commenced a well and you drilled it?
“A That’s right.
“Q Down to that 4710 feet; did you have any shows?
“A Yes, we had one, two, three shows, as I remember, that were worth testing.
“Q And did you drill stem test one of those?
“A Yes.
“Q At about what depth was it ?
“A As I remember it was around 4200, between 4000 and 4200.
“Q Was Fain out there when that drill stem test was conducted?
“A Yes.
“Q What did that indicate; what did it show ?
“A Well, for forty minutes after— they called me in Midland. I assumed that Fain was in Dallas, or he might have been here, I don’t know; they told me they have a flowing well on the drill stem test, and I think they have shut it in, awaiting our arrival. Well, I got here as soon as I could, and we went out to the well, all of us. I think it was after dark; at the close of that day, and we opened it up again, and the well flowed oil and gas; no' water, I would judge for forty minutes, and it made what I would guess to be between five and ten barrels an hour.
“Q Now, then, was Cannon there at that time ?
“A Yes.
“Q And Mr. Fain?
“A Yes.”

R. L. Cannon testified:

“A I was out there during the drilling. I was available from the time it was under casing pipe on down.
“Q You saw Mr. Fain out there from time to time, didn’t you?
“A Yes, sir.
“Q Sir.
“A Yes, sir.
“Q About how many occasions while the drilling was in progess?
“A Well, he was there when we were drilling the Goen, which was about — that was about 4000 feet, some where along there. Right at the moment that’s the first time I recall.
“Q Was he there at 1400 feet, approximately ?
“A Was he there at that time ?.
“Q Yes.
“A I don’t recall, Mr. Lewis; I sure don’t.
“Q You testified that he was in your deposition, didn’t you?
“A Well, I don’t know. If I did, that was my memory at the time.
“Q And that would be closer then than now, wouldn’t it
“A Yes, sir; about a year back, almost.
******
“Q I asked this question, right now, did he complain while that well was being tested, drillstem tested, while it was apparently going to be a good producer; he wasn’t complaining about that location then, was he?
“A He did not complain about it at that moment in my presence.
“Q All right; you never did hear him complain to Mr. Harris about it, did you?
“A No, I didn’t hear him talk to Mr. Harris except at Verme jo Park.
“Q And you saw both of them at the well on that occasion, didn’t you ?,
“A Yes, sir.
“Q Drillstem test?
“A Yes, sir.
“Q Did you see them together at the well on any other occasions?
“A Yes, sir. I think they were there on several occasions together.”

The Court submitted Special Issue No. 1 reading:

“Do you find from a preponderance of the evidence that in the telephone conversation between Roger Harris and Earl Fain, Jr., on or about July 14, 1959, Fain told Harris in substance that he (Fain) would consent to the change of the location of the well if R. L. Cannon would approve it?”

Appellant objected to the submission of this issue and suggested that an issue, if submitted, should read:

“Do you find from a preponderance of the evidence that the Defendant consented to the drilling of the well where it was located ?”

The essential issue is consent for the change of the well from one location to another, rather than the consent to drilling of a well at some designated relocation and other than that set out in the agreement.

We believe the issue as worded fairly submitted the issue of an “agreement” to move the well at all and was an ultimate issue. From the geologist Cannon’s view a change in the location from 3300 to 2500 feet from the northeast line was not important. The issue fairly submitted the theory of both parties, which essentially was: Did Fain agree to the relocation of the well? The answer of the jury was reasonably supported by the evidence and the conduct of the parties. General Finance & Guaranty Co. v. Smith, Tex.Civ.App., 309 S.W.2d 531, error ref., N.R.E.

Appellant’s third point is directed to the error of the Court in permitting Roger Harris, President of appellee, to testify, over objection, as to his intention in signing a letter in the nature of a settlement of the controversy. The letter from Mr. Fain is dated October 14, 1959 and addressed to John Tester at San Angelo, Texas and outlines a manner of settlement. Attached to the letter are certain checks to he delivered in accordance with the instructions therein set out. The contents of the letter is as follows:

“Dear Mr. Tester:
“I hand you herewith Cashier’s Checks payable to you as follows:
“1) Check #X496572 in the sum of $780.48
“2) Check #X496573 in the sum of $6812.20
“3) Check #X496574 in the sum of $7592.68
“Upon receipt of:
“a) An assignment from Texas-Hanover Oil Co. to Earl Fain, Jr. for immediate delivery to me of %ths of the working interest in the lease referred to in the contract dated June 2, 1959 between B. F. Black, J. P. , Carson and Texas-Hanover and the ( leases referred to in the contract dated May 20, 1959 between Texas-Hanover and the Mound Co.;
“b) A Cashier’s Check in the sum of $6281.07 payable to Earl Fain, Jr. for immediate delivery to me;
you are to do the following:
“1) Mail Check #1 in the sum of $780.48 to Schlumberger Well Surveying Co., Houston, Texas in payment of their invoice #65936 I charged on their books to Earl Fain, Jr., but actually the obligation of Texas-Hanover as part of the surveying cost of the Lyle Currie #1, Runnels Co., Texas;
“2) Deliver Check #2 to Texas-Hanover;
“3) Deliver assignments referred to above to me;
“4) Deliver Cashier’s Check in the sum of $6281.07 in payment of Texas-Hanover’s portion of the completion costs of the Lyle Currie #1 to me;
“5) Hold Check #3 in the sum of $7592.68 referred to above under the following terms:
“a) If on or before November 15, 1959, I advise you that the objection created by Texas-Hanover’s breach of their drilling contract has been waived by assignee, you, upon satisfactory evidence that all of Texas-Hanover’s bills in connection with the drilling of the Lyle Currie #1 have been paid, you are to turn the check over to Texas-Hanover in payment of their bill for drilling said well.
“b) If on or before November 15, 1959, I advise you that such objection has not been waived by assignee, you are to return the check endorsed to my order.
“This agreement is subject to Texas-Hanover’s acceptance by October 22, 1959. 22, 1959.
“Very truly yours,
Earl Fain, Jr.
Earl Fain, Jr.
“This agreement accepted by Texas-Hanover Oil Company October 22, 1959:
Roger Harris, President
Jewel Richardson, Secretary”

The testimony complained of is as follows :

“Q. Now, then, is there anything in that letter, does it say a thing in the world about your doing that in final settlement of that claim against him?
“A. None whatever.
“MR. BOONE: We object to that; it speaks for itself.
“COURT: I sustain the objection.
“Q. Now, then, in delivering your check, cashier’s check for approximately $6200 and taking one out for approximately $6800, and delivering your assignments there to Fain and Black and Carson, did you understand or intend that you should be accepting that difference of around $600 in full . and final settlement of everything Fain owed you?
“A. Certainly did not.
“MR. BOONE; We object to that. His subjective intent is not material to the construction of this letter. The letter is the best evidence of (what) went in the letter. The parties agreed on it; both of them signed it; both of them accepted it. What Mr. Harris’ understanding was, what his subjective or secret intent was in performing in accordance with the letter agreement isn’t a proper subject, it is not proper evidence before this court.
“MR. LEWIS: If the Court please, he has been talking about accord and satisfaction, you don’t have accord and satisfaction unless the party that’s charged with having delivered an accord and satisfaction understood and intended it should be such.
“MR. BOONE: The letter, again, speaks for itself, Your Honor. I would just like a Court ruling.
“THE COURT: I overrule the objection.”

We do not believe that the admission of the testimony was objectionable. We do believe that the letter and the procedures outlined therein did not comprehend a final settlement in the event the November 15th date should pass without Fain having advised Mr. Tester that Thompson had waived objection to the changed location and was to this extent ambiguous.

The letter contains several conditions and in nowise provided that Texas-Hanover would renounce its claim to the sum of $7592.86.

On November 10, 1959 Mr. Fain wrote the attorney for Texas-Hanover and stated that one of his partners had refused to waive the change of location and that such partner’s part of the obligation to Texas-Hanover would amount to $4166.66 and stated:

“Now, as a matter of compromise— which, if not accepted, does not prejudice my right of damages or right of demanding specific performance — I am willing to pay to Texas-Hanover the total sum due them (upon satisfaction that all bills have been paid) less the one-eighth portion mentioned before, or $4166.66. This would mean that Mr. Tester would turn over to Texas-Hanover the sum of $3426.02 and return to me the sum of $4166.66. If this is not acceptable to Texas-Hanover, I will have to instruct Mr. Tester to return to me the check for $7592.68 which he is holding and stand on the provisions of the contract dated June 2, 1959.”

One party to an agreement may testify as to his intent when such becomes a material point of inquiry, such evidence is not conclusive. 17 Tex.Jur. p. 406; Reed v. Reed, Tex.Civ.App., 303 S.W.2d 460, reversed on other issues Reed v. Reed, 158 Tex. 298, 311 S.W.2d 628; Tex.Jur. Vol. 10-A, p. 406; Wigmore, Vol. 1, pp. 715— 721.

Appellant’s fourth point is directed to the submission of modified versions of defendant’s requested definitions and issues.

Defendant requested the following definition :

“An ‘accord and settlement’ as used in this charge is an agreement whereby one of the parties undertakes to give or perform and the other to accept, in satisfaction of a claim, something other than or different from what he is, or considers himself, entitled to.”

The instruction as given was the same as that requested except the words “mutually intended” were inserted in front of “agreement”, and “a” was substituted for “an”.

The Court in its main charge sufficiently covered the requested instruction and there was no error in the submission of the requested definition with the added phrase, as above set out. Goolsbee v. Texas & N. O. R. Co., 149 Tex. 445, 234 S.W.2d 407; 150 Tex. 528, 243 S.W.2d 386.

There was no error in changing the word “executed” as requested by defendant to “accepted”.

The requested issue contained the words “It did accept it” or “It did not accept it,” and the change in the wording of the issue was the correction of a clerical error. No objection was made to the corrected issue.

There was no error shown of any prejudice to defendant in the refusal of the Court to require plaintiff’s counsel to discuss Special Issues Nos. 2 and 3 in the opening argument.

Rule 269(h), Texas Rules Civ.Proc., provides for arguments and only requires the counsel in the opening argument to present his whole case as he relies on it, both of law and facts, and shall be heard in the concluding argument only in reply to the counsel on the other side. The plaintiff was not relying on Special Issue No. 5, this being a defense issue. Special Issue No. 2 was an issue requested by defendant in which he was relying on accord and satisfaction and was not requested by plaintiff.

There is no showing that plaintiff’s counsel argued in his closing argument any of 'his issues that he had not previously argued in his opening argument.

We believe that interest was allowable as compensation for the detention of money and not as a punitive measure against the debtor. The debt has not been paid and there is only the cashier’s check, not money, in the hands of the Court and the judgment of the Court is the subject of this appeal. 47 C.J.S. Interest § 55, p. 67.

It was not error for the Court to deny defendant a recovery for portions of drilling costs.

In answer to Special Issue No. 5 the jury found the cost of drilling, equipping and completing a well at the original location would be $60,000.00 and by reason of such answer the defendant claims damages amounting to %ths or %2ths of $60,000.00. The defendant could not recover damages based on the jury’s finding. Damages for failure to drill a well are not measurable by the amount it would cost. Riddle v. Lanier, 136 Tex. 130, 145 S.W.2d 1094.

There was no proof made to show that a well drilled at the original location would have been productive or would have increased the value of defendant’s part of the working interest, or that there was any geological difference between the two locations. Hardwick v. Jackson, Tex.Civ.App., Dallas, 315 S.W.2d 440.

By its ninth counterpoint appellee asserts that estoppel and waiver were proved as a matter of law. Since the testimony concerning the contract between the parties, the subsequent agreement and the conduct of the appellant in visiting the relocation, observing the drilling of the well and taking over the well for completion as operator has been hereinabove recited, which we do not restate, we believe that Mr. Fain is estopped to refuse payment of his share of the cost of drilling the well and to have waived any objection he may have had to consent to the change in location. Whether there is a waiver depends on the acts and conduct of the parties subsequent to the making of the contract. 17 C.J.S. Contracts § 492, pp. 994, 995; 10-A Tex.Jur., pp. 565, 568; Bluebonnet Oil & Gas Co. v. Panuco Oil Leases, Inc., Tex.Civ.App., 323 S.W.2d 334, error ref., N.R.E.; Dallas Farm Machinery Co. v. Minneapolis-Moline Co., Tex.Civ.App., 324 S.W.2d 578.

The judgment of the Trial Court is affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    UPPER NECHES RIVER MUNICIPAL WATER AUTHORITY OF TEXAS, Appellant, v. A. M. WYLIE, Appellee.
    No. 3993.
    Court of Civil Appeals of Texas. Waco.
    Jan. 25, 1962.
    Justice & Kugle, Athens, for appellant.
    Fields & Fields, Athens, Gordon R. Well-born, Henderson, for appellee.
   McDONALD, Chief Justice.

This is a condemnation case in which the Upper Neches River Municipal Water Authority of Texas sought condemnation of 190 acres of land of A. M. Wylie. The Trial Court awarded the plaintiff the land, and awarded defendant $25,050 damages. From such award, plaintiff appealed, and caused transcript and statement of facts to be filed in the 5th Court of Civil Appeals at Dallas. The case was transferred to this court by our Supreme Court. Prior to the time of submission of such cause, plaintiff, appellant, filed motion in this court moving that such appeal be dismissed.

Motion is granted, and appeal dismissed.