author: O’QUINN, Justice.

text:
    W. C. Jack MILLER, Appellant, v. R. H. LAWRENCE, Appellee.
    No. 11491.
    Court of Civil Appeals of Texas, Austin.
    May 3, 1967.
    Rehearing Denied May 24, 1967.

      Passman, Jones, Stewart, Andrews & Hunter, Bill C. Hunter, Gerald R. Coplin, Dallas, for appellant.
    Strasburger, Price, Kelton, Miller & Martin, Frank L. Skillern, Jr., Dallas, for ap-pellee.
   O’QUINN, Justice.

This is an appeal from summary judgment in district court awarding recovery on a promissory note, with interest and collection fees.

The foremost question is whether there was valid consideration for the note which was given in connection with settlement of a controversy involving several persons.

R. H. Lawrence of Hale County, appellee in this Court, brought suit in Dallas County in district court August 26, 1965, on a promissory note in the principal sum of $12,500 against W. C. Jack Miller of Tar-rant County, the appellant. The note was dated Febraury 8, 1964, bore interest at six percent, provided for collection fees at ten percent of principal and interest, and matured August 1, 1965.

Appellant Miller filed a general denial, and Appellee Lawrence filed motion for summary judgment based on Miller’s failure to deny execution of the note under oath and upon appellee’s affidavit of demand and of no payment on the note. Appellant then filed a controverting affidavit in which he swore that the note had been delivered conditionally to appellee, with the understanding that the note would become null and void if appellant was unable to recover on two certain second lien notes of Trinity Industrial Corporation amounting to $950,000.

The district court overruled Appellee Lawrence’s motion for summary judgment, and appellee, after taking appellant’s deposition and filing additional affidavits, filed a second motion for summary judgment. Appellant was granted a continuance, and shortly before the hearing on the second motion for summary judgment appellant filed extensive pleadings and affidavits in reply to appellee’s motion and affidavits. At the hearing, the district court entered judgment for Lawrence, and Miller has appealed.

Appellant Miller’s pleadings and affidavits present an extended and detailed account of transactions among numerous persons, including both appellant and appellee, beginning about three years prior to the lawsuit. Miller alleged that in October, 1962, Lawrence and one other person entered into a written contract to purchase two tracts of land in Dallas County known as the Wallace Jenkins and the Rudolph Schenkel Tracts. Lawrence and the other person each put up earnest money checks in the amount of $25,000. Lawrence’s check cleared, but the other person’s check was not honored. Appellant asserted that the land was not purchased by Lawrence and the other person, and Lawrence’s money was forfeited as liquidated damages. Appellant alleged that thereafter George Aaron, seemingly acting for the sellers, had an oral agreement with Lawrence that if Lawrence would help bring about a sale of the Jenkins and Schenkel Tracts, Lawrence would be paid $25,000. Afterwards the sellers made a contract with people named Whitlock, with Lawrence active in the dealings, but in time the Whitlocks declined to close the sale. A lawsuit grew out of this transaction, judgment was obtained against the Whitlocks and the case was appealed. It appears Lawrence was to have $25,000 if the trade with the Whitlocks was closed.

After the Whitlock dealings ended, Appellant Miller made a contract with the owners to buy the Wallace Jenkins Tract. Miller’s deed was dated August 8, 1963. It was six months later, on February 8, 1964, that Miller executed the note to Lawrence for $12,500 that became the subject of this lawsuit, together with another note in the same amount maturing at a different and later date.

Appellant alleged that he knew nothing about the contract between Aaron and Lawrence regarding payment to Lawrence of $25,000 in connection with the Whit-lock negotiations; that Lawrence did not have a written contract with the owners of the Wallace Jenkins Tract for payment of $25,000 when appellant bought the tract; that the earnest money in the sum of $25,000 put up by Lawrence in 1962 on contract of purchase of both tracts had been forfeited under the agreement, and Lawrence had no valid claim for return of the deposit; and that by reason of the facts alleged valid and sufficient consideration did not pass between Lawrence and Miller in conjunction with execution of the note sued upon.

The oral depositions of George Aaron and Appellant Miller were before the district court when the second motion for summary judgment was heard and judgment entered for Lawrence. It was shown that Miller and Aaron and five others were partners, or associates, in handling the Jenkins and Schenkel Tracts. After the sale to Lawrence and his associate failed of completion, Aaron, acting for the partners, persuaded Lawrence to write a letter to National Title Company, holder of the Lawrence earnest money deposit of $25,000, releasing the money, on Aaron’s promise that when the land was sold, Lawrence would get his money back. The partners needed the $25,000, according to Aaron, to pay interest owed a bank and to extend the option to the Schenkel Tract. It appears that when Lawrence released the $25,000 in National Title he was claiming an interest in the land and was still claiming an interest when the Whitlock trade was not concluded, resulting in a lawsuit, and when the Jenkins Tract was transferred to Miller in August, 1963.

It was shown that Aaron had made a note to Lawrence for $25,000 in connection with the transactions relating to release of the deposit and the promise to refund the money fo Lawrence. Aaron swore that “ * * * all the partners agreed that we would guarantee his money back if he would release from the title company so we could take it and pay our obligations.”

In support of the second motion for summary judgment, appellee filed an affidavit of Harold Hoffman who was an attorney for Appellant Miller in February, 1964, and prepared the promissory notes to appellee at Miller’s direction. Hoffman asserted that the notes were signed by Miller in Hoffman’s office in the presence of Hoffman, George Aaron and Art Clifton, one of the seven partners or associates.

Hoffman further stated that in connection with the notes, he prepared two letters. The first letter was dated February 8, the date of the notes, and was “accepted” by Miller over his signature. This letter signed by Aaron and Clifton, in its opening paragraph stated, “This will confirm the settlement agreement which we have today made with you, settling all of our differences which arise out of the sale of the Jenkins and Schenkel land in Dallas County, Texas.” The letter recited that “as a part of this settlement agreement you have delivered to us the following promissory notes * * * ” including two notes to Lawrence, each for $12,500. The letter contained the further provision that it was “understood and agreed between us” that if Lawrence should not be “willing to release all claims against George Aaron upon receipt of the Promissory Notes payable to him * * * then the three of us will cooperate in undertaking to work out a settlement agreeable to the said * * * Lawrence.”

The second letter prepared by Hoffman at Miller’s direction was for the signature of Lawrence and was addressed to Miller, Clifton, Aaron, and two others of their associates in the Jenkins and Schenkel transactions. The Lawrence letter, dated February 12, 1964, was signed by Lawrence and read in part as follows:

“In consideration of two promissory notes made by W. C. Jack Miller to me, in the amounts of $12,500 each, both dated February 8, 1964, and due on or before August 1, 1965, and August 1, 1966, respectively, with interest at 6% per annum from date, payable to me, the receipt of which is hereby acknowledged, I agree to and do hereby release and discharge each of you of and from any and all claims, causes of action, damages or suits which I now have or might have, arising out of the various transactions in which we were engaged pertaining to the land located in Dallas County, Texas, and known as the Jenkins Tract and the Schenkel Tract.”

The letter further recited that the two Miller notes of $12,500 each were “accepted * * * in substitution for and in lieu of the $25,000 note” Aaron had executed to Lawrence. In conclusion, the letter stated, “This letter of release is written at the request of W. C. Jack Miller.”

In his affidavit, Hoffman stated that Lawrence “ * * * was not present at any time on February 8, 1964, when the promissory note was signed. At no time in my presence did anyone make mention of the fact that the note * * * payable to R. H. Lawrence, was conditional or not binding in any way.”

A second affidavit by Harold Hoffman is in the record and was before the trial court. This affidavit includes excerpts from the deposition of Art Clifton and portions of the trial testimony of Appellee Lawrence, taken from the transcript, in the trial of the Whitlock case, in which Hoffman was an attorney.

In substance Clifton testified that after Lawrence’s partner was unable to go forward with Lawrence in purchase of the Jenkins and Schenkel Tracts, and Lawrence had put up his deposit of $25,000, Clifton and the other associates agreed with Lawrence that he could join them in an effort either to sell the property or obtain a partner to buy the land. Lawrence testified at the Whitlock trial that his $25,-000 had been turned over to Aaron, but that he had an agreement with at least some of the associates that if the Whitlock sale was closed he would get his money back.

Appellant presents six points of error on appeal. The first point is that there is a genuine issue of fact as to the absence of valid consideration for the note, and the fifth point is that appellee failed to discharge the burden imposed on him by law to establish conclusively the absence of genuine issues of fact.

Under points two, three, and four appellant contends that appellee’s claim was unenforceable under (1) the Texas Real Estate Licensing Act (Article 6573a, Vernon’s Anno.Civ.Sts.); (2) the Statute of Frauds (Article 3995, Vernon’s Anno.Civ.Sts.); and (3) the Statute of Conveyancing (Article 1288, Vernon’s Anno.Civ.Sts.). We will dispose of points one through five together.

Appellant by deposition acknowledged that there was a dispute between him and others, including appellee, and that he made a settlement, executing among other notes the note sued upon in this case. Appellant denied that his attorneys had exerted duress on him, and gave as the reason for settlement that agreement was needed among the associates to go forward with the Whitlock suit. It is clear that by exchange of letters in February, 1964, and delivery of the promissory notes, including the note sued upon in this cause, appellant brought about compromise and settlement of differences among the parties and particularly of his differences with appellee. Appellant does not contend that there was any concealment, fraud, or misrepresentation by appellee in arriving at the settlement. Thus there was valid consideration as a matter of law for the promissory note sued on.

The rule in this state was laid down by the Supreme Court of Texas in 1892 in Hunter v. Lanius, 82 Tex. 677, 18 S.W. 201, that:

“ * * * a note is supported by a sufficient consideration, if executed to secure the abandonment of a suit brought to enforce a doubtful right, or in compromise of a disputed claim made in good faith, though it ultimately appears that the claim was without merit.” (Emphasis added.) 18 S.W. 205, col. 1.

The rule was followed in Walker-Smith Co. v. Pouns, Tex.Civ.App., Austin, 256 S.W. 613 (no writ), in which the court said:

“It is the universal holding of courts that the execution of a note in settlement of a doubtful or disputed claim is supported by a sufficient consideration.” 256 S.W. 615, col. 1.

In the Pouns case appellant sued on a note given by appellee in settlement of a dispute over loss of an automobile belonging to appellant that had been stolen while in possession of appellee, one of appellant’s employees. At the trial it developed that appellant in good faith believed appellee was liable for the value of the car because ap-pellee had the car out after business hours in violation of appellant’s rules against use of its cars by employees after hours. Ap-pellee contended that he was using the car in furtherance of his employer’s business and that he knew nothing of the rule against after-hours use.

The Court applied the rule to these facts in this language:

“Appellee, by executing the note sued upon, admitted his liability for the loss of the car, and waived the defenses set forth in his answer to this suit, for he voluntarily executed the note, under no such legal duress as would excuse him in law or in fact, and there is no contention that it was executed by mistake, or induced by fraud or misrepresentation.” 2S6 S.W. 616, col. 1.

In accord with Hunter v. Lanius, supra, and Walker-Smith Co. v. Pouns, supra, are these cases: Miller v. Layne & Bowler Co., Tex.Civ.App., El Paso, 151 S.W. 341 (writ ref.); Citizens’ Garage Co. v. Wilson, Tex.Civ.App., San Antonio, 252 S.W. 186 (no writ); Aydelotte v. Anderson, Tex.Civ.App., Amarillo, 284 S.W.2d 804 (writ ref. n. r. e.).

Appellant relies upon the holding in Burkett v. Cluck Grain Co., Tex.Civ.App., Amarillo, 266 S.W.2d 425 (no writ) to support the position that the note sued upon was without sufficient legal consideration. The facts of the Burkett case show that the note was given on representations of the payee that he had paid the maker’s brother for wheat that he had also paid the maker for, and consequently had paid them twice for the wheat. The note was then given in settlement of the overpayment, when in fact there was no overpayment and neither the maker of the note nor his brother was in fact indebted to the payee at the time the note was executed. On appeal from a summary judgment in favor of the payee, the court reversed and remanded the case.

The requirement of the rule in Hunter v. Lanius, supra, that the disputed claim be made in good faith clearly is absent in Burkett v. Cluck Grain Co. It further appears that the trial court failed to consider a sworn amended answer, presenting a genuine issue of material fact, necessitating reversal. If Burkett v. Cluck Grain Co. holds as appellant contends, and we do not so find, then the case is not in line with the rule of Hunter v. Lanius and stands alone. It appears that the ends of justice were attained in the Burkett case, and it might be noted that the same court, speaking throiigh the same justice, followed the rule of Hunter v. Lanius two years later in Aydelotte v. Anderson, supra.

In the second, third, and fourth assignments appellant contends that appellee’s claim is unenforceable by reason of the Texas Real Estate Licensing Act, the Statute of Frauds, and the Statute of Conveyancing. We overrule these points and hold that none of these statutes is applicable in this cause. This suit was brought in the usual form of a suit on a promissory note. It is not a suit on a real estate commission. Nor is it a suit on an oral contract relating to real property. No contention is made by appellee to establish claim in real estate that would violate the provisions of Article 1288, Vernon’s Anno.Civ.Sts. (Statute of Conveyancing). It is plain that appellee sued on a promissory note given in compromise and settlement of a disputed claim made in good faith. The defenses available in a suit on the disputed claim are not available in suit on a note given to compromise and settle the claim, and the consideration for the note is valid as a matter of law. Appellant cannot avoid liability on the note by showing that the claim compromised and settled by execution of the note could not have been established in court in the face of any of the statutes now invoked by appellant.

We overrule appellant’s assignments of error one through five.

Under the sixth and last assignment of error appellant contends that the trial court erred in overruling appellant’s motion to compel George Aaron to answer certain questions asked him regarding conviction of crime.

The purpose of the questioning of course was to impeach the witness by showing a conviction affecting his credibility.

The judgment of the trial court recites that the court heard and considered various motions and all pleadings and exhibits, including affidavits of Lawrence, Clifton, Miller, Sam French, Hoffman, “and the depositions of W. C. Jack Miller and George Aaron in support of and in opposition to the various matters before the court.”

The judgment further 'recites that the parties waived the signature of Aaron to his deposition “on file in the above styled and numbered cause.” The record shows that the parties by stipulation agreed that the deposition of Aaron could “be considered by the court in conjunction with * * the motion for summary judgment and defendant’s opposition thereto, the signature of the deponent being expressly waived.”

In a summary judgment proceeding it is not the duty of the trial court to ascertain the credibility of affiants or deponents, nor determine the weight to be given the testimony. The sole question is whether there exists a genuine issue of fact. Rattan v. Dicker, Tex.Civ.App., Dallas, 373 S.W.2d 306 (no writ).

Appellant’s sixth assignment is overruled.

In a companion case to the case at bar, Miller v. Aaron, 413 S.W.2d 426, the Dallas Court of Civil Appeals on March 3, 1967 (rehearing overruled March 24, 1967), affirmed a district court judgment awarding recovery by George Aaron against W. C. Jack Miller upon a promissory note for $10,-000 given in the settlement of February 8, 1964, which we have under consideration. The Dallas Court, in a well-reasoned opinion, concluded, “It is our view that appellee [Aaron] carried his burden, cast upon him by appellant’s [Miller’s] sworn denial of consideration, of showing that there was valid consideration fpr the note as a matter of law, and that there was no genuine issue as to any material fact in connection therewith.”

Appellant has failed in the case at bar to meet the burden, under his sworn denial of valid consideration, to show by facts that there was no consideration for the note. The general rule is that, confronted with a motion for summary judgment, a pleading in answer setting forth only legal conclusions will not raise a fact issue. Alexander v. Houston Oil Field Material Company, Tex.Civ.App., Tyler, 386 S.W.2d 540 (writ ref. n. r. e.); Jones v. Willoughby, Tex.Civ.App., El Paso, 312 S.W.2d 426 (writ ref. n. r. e.) ; Lewis v. Ada Employees Credit Union, Tex.Civ.App., Houston, 383 S.W.2d 864 (writ ref. n. r. e.).

At all times material in this lawsuit Article ’ 5933, sec. 24, (Vernon’s Ann.Tex. Sts.) was effective, although it was repealed June 30, 1966, when the Texas Uniform Commercial Code became effective. Section 24 of Article 5933 reads:

“Sec. 24. Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.”

Appellee assumed the burden of showing the absence of any genuine issue as to any material fact, and that he was entitled to judgment as a matter of law, when he filed motion for summary judgment. In determining whether appellee has met this burden, the evidence must be viewed most favorable to appellant, with all conflicts being disregarded, all doubts as to existence of. a genuine issue of material fact being-resolved against appellee, and all evidence tending to support appellant’s contention being accepted as true. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965).

We find that appellee met the burdens imposed under Rule 166-A, Texas Rules of Civil Procedure, by showing that there was no genuine issue as to any material fact and that there was valid consideration for the note as a matter of law.

The judgment of the district court is affirmed.

Affirmed.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    Albert Dale CASTEEL, Appellant, v. Mrs. Rachel Sellers MANDEL, Appellee.
    No. 16908.
    Court of Civil Appeals of Texas. Dallas.
    April 28, 1967.
    John R. Gillham, Clarendon, for appellant.
    Ralph Elliott, of Elliott & Nall, Sherman, for appellee.
   DIXON, Chief Justice.

Appellant Albert Dale Casteel, presently a resident of El Paso, Texas, filed this suit May 27, 1966 for care and custody of his two children, one a girl nine years of age, the other a boy seven years of age. The children have lived with their maternal grandmother, Mrs. Rachel Sellers Mandel, appellee herein, in her home in Sherman, Texas since August 1, 1962. Appellant alleges that at that time they were brought to appellee merely for a visit while he was ill.

They are the children of appellant and his first wife, who was killed in an automobile accident in December 1959. Appellant was seriously injured in the accident, was hospitalized for about a month and was unable to return to work for several months. Meantime he and the children lived with his mother and father in Clarendon, Texas.

In July 1961 appellant remarried. He and his second wife, Ellen Murphy Casteel, have one child, a little boy not yet three years of age at the time of the trial.

Appellant and his present wife have had their problems and troubles. In July 1963 appellant again entered the hospital, this time for a serious operation to his hip. He did not return to work until July 1964. Meantime marital difficulties arose. A number of separations took place. Appellant filed two suits for divorce from his wife, the first in Amarillo, Texas, the second in Dallas, Texas. In both instances the couple were reconciled and. the suits dismissed. Mrs. Casteel did not attend the trial of this case in August 1966 for at the time she was in a hospital in El Paso following a serious operation.

For some years appellant has worked as a pipe fitter and sometimes as foreman for a company which installs fire sprinkler systems. His duties require him to be away from home frequently and sometimes for extended periods of time in various places in Texas, Arkansas and New Mexico. For about ten months he and his wife and little boy have lived in a rented trailer house in an El Paso trailer court.

In 1963 appellee, Mrs. Mandel, employed an attorney and filed suit in Sherman, Texas, to have the children declared dependent and neglected. At the time appellant was in a hospital in Dallas, Texas. He was not served with notice of the suit. An order was entered August 30,1963 declaring “that for the welfare of the children named in said petition this Court should take immediate action.” An order was entered awarding temporary care, custody and control of the children to appellee.

The testimony of several witnesses at the trial of this case in August 1966 is to the effect that appellee keeps a simple, clean home for the children, that she is devoted to the children and they to her. The little girl is in school and the little boy has finished summer pre-school. They have received excellent moral and religious training from their grandmother and are healthy and happy.

Following the hearing in August 1966 and the award of the children’s custody to ap-pellee the trial court filed findings of fact and conclusions of law. The court found that (1) appellant and his wife reside in a thirty-eight foot trailer house in a trailer park in El Paso, where appellant is sometimes located, though his work sends him into other parts of the state for extended periods of time; (2) for more than three years the children have lived with their maternal grandmother, the appellee; the home of appellant and his present wife has been and is unstable, resulting in separations and divorce suit filings; (3) appel-lee’s home is suitable for the care of the children, who are happy and well cared for and are doing exceedingly well; (4) appel-lee is a fit and proper person to have care and custody of the children; (5) appellant makes approximately $8,000 per year; during 1965 he paid $435 child support and during 1966 he paid $10 in January and $10 at Easter; and (6) home life of father is and has been demonstrably unstable; his home is not a fit and proper place for rearing children, and appellant is not a fit and proper person to have their care and custody.

The court concluded that (1) the best interests of the two children would be served by placing them in the care, custody and control of appellee; (2) appellant should be required to contribute to the support of the children; (3) their best interests would be served by denying appellant’s application for their care and custody.

The court on August 15, 1966 rendered judgment awarding care and custody of the children to appellee; declaring “that insofar as may be necessary the judgment of this court” of August 30, 1963 “is hereby confirmed”; ordering appellant to pay $60 every two weeks as child support; providing for visitation rights for appellant; and directing that the children should not be removed from Grayson County, Texas without permission of the court. t

In his first two points on appeal appellant attacks the order of August 30, 1963 which without notice to him awarded temporary custody to appellee.

In De Witt et ux. v. Brooks et ux., 143 Tex. 122, 182 S.W.2d 687, in discussing Art. 2332, Vernon’s Ann.Civ.St, it was held that a summary proceeding under the statute, without notice to the parents is valid, subject to the right of the parents to a full hearing in a subsequent proceeding. The order being attacked in this case did not declare the children dependent and neglected. It merely awarded temporary custody to appellee. We agree with appellant that the order of August 30, 1963 did not terminate his parental rights. But appellant was granted a full hearing in the subsequent proceeding on the questions of custody and the best interests of the children and the issues were decided against him after appellant and his witnesses were heard and their evidence considered by the court. The order of August 30, 1963 does not have the effect of invalidating the present judgment.

In his next six points appellant attacks the findings and conclusions of the court on the ground that there is no evidence to support them and there is evidence that the father was a fit and proper person to have care and custody of the children. Appellant also charges appellee with perjury because in her testimony she said she had not alleged in the 1963 proceeding that the children were dependent and neglected.

There is no merit in the above points. There is ample evidence to support the court’s findings and conclusions. Appellant relies on the rule that parents have the natural right to the custody and control of their children and on the death of one parent the surviving parent has the right to custody of the children. However, in the very case cited by appellant it is held in substance that the rule is not absolute, but must yield when the real and permanent interest of the children demands a different disposition. Davis et ux. v. Sears, 35 S.W.2d 99, 103 (Com.App.1931). See also Herrera v. Herrera, 409 S.W.2d 395 (Tex.Sup.1966); Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787; Ham v. Cavette et ux., 357 S.W.2d 438 (Tex.Civ.App., Houston, 1962, ref. n. r. e.); and Sawyer v. Bezner, 204 S.W.2d 19 (Tex.Civ.App., Amarillo, 1947, ref. n. r. e.). Appellant also says that ap-pellee in her answer did not plead his unfitness to have care and custody. But appellant himself in his petition pleaded his own fitness, thus presenting the issue. Moreover, in child custody cases the strict rules of pleading are somewhat relaxed. Robinson v. Wampler, 202 S.W.2d 500 (Tex.Civ.App., Amarillo, 1947, no writ); 27 Tex.Jur.2d 708.

Appellant says that Mrs. Mandel proved her unfitness by committing perjury in that she testified that when she brought the first action in August 1963 she had not alleged that the children were dependent and neglected. Her verified pleading, obviously prepared for her by the attorney who then represented her, did include such allegations. Mrs. Mandel reiterated from the witness stand at the trial of this case that at the time of the 1963 proceeding the children were neglected. She did not say they were dependent. She is not a person of great education, and though the evidence is to the effect that she is a woman of most excellent character, it is obvious that her knowledge of the legal term “dependent and neglected” is limited indeed. This inconsistency in her allegation in her petition in 1963 and her testimony in 1966 is not material and does not establish her unfitness to have the care and custody of these children.

In matters of child custody the trial court is entrusted with considerable discretionary powers. We see no abuse of that discretion in this case. Jones v. Davis, 314 S.W.2d 328 (Tex.Civ.App., Waco, 1958, no writ); 27 Tex.Jur.2d 716, and cases there cited. The last six points are overruled.

The judgment of the trial court is affirmed.


author: WALTER, Justice.

text:
    A. A. SMITH, Jr., Appellant, v. OLNEY FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 4154.
    Court of Civil Appeals of Texas. Eastland.
    April 21, 1967.
    Rehearing Denied May 19, 1967.

      R. J. Balch, Seymour, for appellant. ■
    Thornton, Thornton & Fisher, Rick P. Fisher, Olney, for appellee.
   WALTER, Justice.

Olney Federal Savings and Loan Association recovered a summary judgment against A. A. Smith, Jr., for a deficiency following a deed of trust foreclosure. Smith has appealed.

Wayne Bingham executed a note and deed of trust to the association. Smith purchased the property involved from Bing-ham and assumed and agreed to pay the debt held by the association. The association did not make Bingham a party to this suit. We-find no merit in Smith’s point that Bingham is a necessary party. In Loveless v. Temple Trust Company, 59 S.W.2d 883, (Tex.Civ.App., 1933, writ ref.), the court said:

“But two propositions are presented on this appeal. The first is that the original makers of the notes and deed of trust are necessary parties to this suit. This contention is not sustained. After sale and conveyance of the property by the original owners, and assumption of the debt by the grantees, the grantees became the principal obligors therein and the original makers only sureties. As such they were not necessary parties to a suit brought by the holder of the notes and lien.”

Appellant says a fact issue was. presented on whether or not the association elected to proceed against Bingham rather than him. When the association foreclosed under its deed of trust, it named only the original makers of the note and deed of trust and did not name Smith in the notices. Appellant’s contention that the association made an election to proceed against the-original maker cannot be sustained. In Hampshire v. Greeves, 104 Tex. 620, 143 S.W. 147, (1912), the court, quoting from Jones on Mortgages, said:

“ ‘A sale regularly exercised under a power is equivalent to strict foreclosure by a court of equity properly pursued.’ ”

and from an Alabama case [Aiken v. Bridgeford, 84 Ala. 295, 4 So. 266].

“ ‘when a regular sale is made under a power contained in the instrument, not only the mortgagor, but all persons claiming any interest in the equity of redemp-lion by a privity of estate with him are considered as parties to the proceeding, and are precluded by it as fully as if they had been made parties defendant by regular subpoena in an ordinary foreclosure suit.’ ”

Appellant contends a material fact issue exists on the question of whether the association purchased the property at the foreclosure sale for an inadequate consideration. In Sparkman v. McWhirter, 263 S.W.2d 832, (Tex.Civ.App., 1953, writ ref.), the court said:

“Concerning numerous of the fact allegations set forth in appellants’ cross action, the following conclusions are obvious: (1) That the trustee’s sale will not be avoided merely because of inadequacy of price. Thornton v. Goodman, Tex.Com. App., 216 S.W. 147; for avoidance and in conjunction, there must be evidence of irregularity, though slight; which irregularity must have caused or contributed to cause the property to be sold for a grossly inadequate price * *

The record shows no such irregularity.

Lastly, appellant says a fact issue existed on the question of merger of the title and lien in the association to the extent that it was denied the right to seek a deficiency judgment against him.

We have concluded that the rights to sell under the deed of trust and to collect the deficiency by suit were cumulative.

In Rushing v. Hall, 74 S.W.2d 761, at page 763 (Tex.Civ.App.1934, no writ history), the court said:

“Under the first three propositions presented in appellants’ brief, it is very earnestly insisted that plaintiff, by pursuing his remedy of sale of the land under the deed of trust for the amount due on the three notes to secure which the trust deed was executed, estopped himself from suing defendants to recover the balance due upon the three notes, and also the amount due upon the $750 note assumed by the defendants. We cannot agree with appellants’ counsel in this view of the law applicable to the facts of this case. * * * Certainly the parties to the deed of trust never contemplated that, if the land failed to sell for enough to pay the three notes, the holder of the notes and the deed of trust must accept the proceeds of the sale in full satisfaction of the three notes and all other indebtedness of defendants secured by a lien on the land. There is to our minds no rule of equity, law, or reason requiring such effect to be given the sale of the land under the provisions of the deed of trust.”

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

The judgment is affirmed.


author: KLINGEMAN, Justice.

text:
    R. L. BURNEY, Appellant, v. Nicholas R. IBARRA, d/b/a Southern Sheet Metal Works, Appellee.
    No. 14570.
    Court of Civil Appeals of Texas. San Antonio.
    May 3, 1967.
    Rehearing Denied May 31, 1967.

      Vaughan & Vaughan, San Antonio, for appellant.
    Albert De La Garza, Jr., San Antonio, for appellee.
   KLINGEMAN, Justice.

This is an appeal from a judgment rendered on a jury verdict in a suit by appellee, Nicholas R. Ibarra, d/b/a Southern Sheet Metal Works, against appellant, R. L. Bur-ney, for breach of an oral contract for certain sheet metal and air-conditioning work performed by appellee on a golf club house being constructed by appellant as general contractor.

It appears from the evidence that appellant was the general contractor for the construction of a club house at Olmos Basin Golf Course; that portions of such work were done by subcontractors working under such general contractor; that some sheet metal and duct work had been done by previous subcontractors but, for reasons not fully shown in this suit, such work was not finished. Appellee testified that he had several meetings with appellant with regard to the completion of such work and, after an inspection of such work, told appellant that the only way he would undertake to finish the work was o the basis of the cost of labor and material plus ten per cent, and that appellant agreed to this; that appellee performed such work, furnishing all necessary labor and material to do so; that it took approximately four weeks to complete such work, with an . verage of five men working daily; that he billed appellant for such work and labor in the amount of $3,-457.64, which included the additional ten per cent, and that appellant ultimately paid him $1,500.00 of such total. Appellant’s testimony conflicts with that of appellee in some respects, however, appellant’s chief complaint appears to be his contention that appellee failed to present him proper evidence as to the cost of the items appellant was billed for.

The jury found substantially as follows: (1) That on or about July 20, 1963, R. L. Burney, as general contractor, engaged the services of appellee to complete the sheet metal portion of the air-conditioning job on the Olmos Basin Club House. (2) That appellant agreed to pay appellee for the costs of material and labor used in completing the sheet metal portions of the air-conditioning job, plus ten per cent of the total costs of material and labor used. (3) That the cost of material and labor to appellee to complete the sheet metal portion of the air-conditioning job was $3,117.97. (4) That appellee should be allowed the sum of $700.-00 as reasonable attorney’s fees.

Appellant’s first point of error is that the trial court erred in admitting certain exhibits introduced by appellee. Exhibits 1, 2 and 3 were bills or invoices for material furnished, and appellant’s obj ection to these exhibits was that they were self-serving, which was overruled. Exhibit No. 4 was a listing or itemization of the labor performed, setting forth the number of hours worked by the various types of laborers, the hourly rate paid them, and the total. Appellant made a general objection to its introduction, which objection was also overruled. Appellee testified that such exhibits were prepared under his supervision, that he was familiar with the matters therein contained, that such exhibits were for material furnished and labor performed on such job; that he was familiar with the price of material in the area; that the labor items were in accordance with the wage scale paid by him for such labor; that the exhibits were made at or near the time of the act, and that they were immediately billed to appellant after the completion of the job. We find no error of the court in admitting such exhibits. Further, appellee testified in full about the items shown in such exhibits, and underwent lengthy cross-examination in connection therewith, and his testimony alone supported the jury’s findings, and if there was any error in the introduction of such exhibits, it was not material.

Appellant also complains of error of the trial court: (1) in overruling appellant’s oral motion for an instructed verdict; (2) in overruling appellant’s motion for judgment non obstante veredicto; (3) in basing its judgment on the answers to any special issue presented to the jury, because there was no evidence to support such answers or such judgment.

All of these points or error are “no evidence” points. “No evidence” is a question of law and a jury verdict must be sustained if supported by more than a scintilla of evidence. Gulf, C. & S. F. Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933; Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361. The evidence is undisputed that ap-pellee performed work on the club house which appellant was constructing as the general contractor; that such work was completed; that appellant did not question the workmanship, and that appellant paid appellee $1,500.00 on the bill which was presented to him by appellee. The evidence is disputed as to the exact nature of the contract, and as to whether there was such a contract, appellee testifying one thing and appellant another, and in some respects as to the cost figures. However, much of ap-pellee’s testimony was substantiated by a third party witness. The jury was the sole judge of the credibility of the witnesses and the weight to be given their testimony. Having heard the testimony, the jury found that a contract was entered into between appellant and appellee, that appellant agreed to pay appellee for the cost of material and labor used on such job, plus ten per cent, and that such cost amounted to $3,117.97. We hold that there is evidence of probative force to support the findings of the jury. We do not find any error of the trial court in overruling appellant’s motion for instructed verdict and motion for judgment non obstante veredicto, or in entering judgment on the basis of such jury findings.

Appellant’s next point of error is that the court committed error in allowing appellee a recovery for interest on the judgment. Appellant made no complaint as to interest in his motion for new trial, and there is no assignment of error in such motion with regard to interest. A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required, shall be considered as waived. Rule 374, Texas Rules of Civil Procedure; Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379; Miller v. Long-Bell Lumber Co., Tex.Civ.App., 217 S.W.2d 867, affirmed, 148 Tex. 160, 222 S.W.2d 244; Thompson v. State, Tex.Civ.App., 165 S.W.2d 131, no writ.

Appellant’s other point relates to the award of attorney’s fees in this case. We sustain this point. Appellee’s suit was for damages for breach of contract, and Art. 2226, Vernon’s Ann.Civ.St, does not apply. Kirkwood & Morgan, Inc. v. Roach, Tex.Civ.App., 360 S.W.2d 173, writ ref’d n. r. e. The claim, essentially, is one based on a special contract which covered both the supplying of labor and material, and one in which attorney’s fees are not recoverable. Parks v. Benson Co. Builders, Tex.Civ.App., 393 S.W.2d 700, writ ref’d n. r. e.; Ford Motor Co. v. Davis Bros., Inc., Tex.Civ. App., 369 S.W.2d 664, no writ; Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75; Mercantile National Bank at Dallas v. Hudgens, Tex.Civ.App., 412 S.W.2d 364.

The judgment of the trial court is reformed so as to deny any recovery for attorney’s fees, and as so reformed the judgment is affirmed. Costs are taxed three-fourths against appellant and one-fourth against appellee.


text:
    Wayne O. RICHARDSON, Appellant, v. Mary L. ALTHOFF et al., Appellees.
    No. 16916.
    Court of Civil Appeals of Texas. Dallas.
    May 19, 1967.

      Jack G. Kennedy of Slagle & Kennedy, Sherman, for appellant.
    Rayburn Nall of Elliott & Nall, Sherman, for appellees.
   DIXON, Chief Justice.

This is a child custody case in which appellant Wayne O. Richardson, a resident of the State of California, seeks custody of his eleven-year-old daughter, who since August 1965 has been in the care and custody of her maternal aunt, Mrs. Mary Althoff, and her husband, William Althoff, residents of the State of Tennessee.

At the conclusion of a hearing the trial court on September 1, 1966 awarded care and custody of the daughter to Mrs. Alt-hoff and her husband.

Appellant and Helen Margaret Richardson separated in 1958. In January 1962 they were divorced in Dallas County, Texas. Custody of two minor sons was awarded to appellant. Custody of one minor daughter, then six years of age, was awarded to the mother.

The mother and daughter moved to Den-ison, Texas, where they lived in the home of the maternal grandmother, Mrs. John Scully. Helen Margaret Richardson had a history of mental illness and alcoholism. But it is conceded by all concerned, including appellant, that Mrs. Scully, the grandmother, was a person of excellent qualities and that as long as she lived the little girl would be well taken care of. In fact, appellant says that he agreed with Mrs. Scully that he would not seek custody of his daughter as long as Mrs. Scully had charge of her.

Following the separation in 1958 appellant’s two sons went to Denison, Texas, where they lived in the home of their paternal grandparents for about two years. In 1960 appellant moved to Hawaii and took the two boys with him. In March 1962 subsequent to his divorce in January 1962 and following his return to the mainland he married his present wife, Mrs. Irene Humphrey Richardson.

The Althoffs, formerly residents of Deni-son, Texas, visited Mrs. Scully, Mrs. Alt-hoff’s mother, in the summer of 1965. It was apparent that Mrs. Scully was in failing health. Something had to be done about the little girl. It was agreed between the grandmother, the mother, and the Althoffs that the child should go to live with the Althoffs in Chattanooga, Tennessee. The Althoffs took the child into their home where she is still residing under the care of her aunt and uncle. Appellant did not learn of this change until January 1966.

In February 1966 the mother, Helen Richardson, entered the Wichita Falls State Hospital under a permanent commitment. In March 1966 Mrs. Scully died.

Appellant, his wife and his two sons came from California for the hearing. The Alt-hoffs and appellant’s daughter came from Tennessee for the hearing.

The two boys, now eighteen and seventeen years of age respectively, testified that they love their sister and hoped she could come live with them. They had visited her and their grandparents in Denison on several occasions. They also love their stepmother, who has devoted herself to their welfare and'happiness and has established a happy home life for their father and themselves. This testimony was corroborated by other witnesses including appellant.

On the other hand appellant contributed nothing to the support of the little girl since the divorce. He never came to see her and never wrote to her except maybe at Christmas. He has changed jobs frequently and has recently rented out the home he was paying for and has moved into a rented house. He says that he contributed no money to his daughter’s support because he was “broke”. Appellant’s daughter had not seen her father in five years, in fact there had been very little contact between father and daughter since 1958 when the father and mother separated.

The Althoffs have two daughters, one twenty-one years of age, the other eighteen. They also have a son the same age as the little girl. The Althoffs have taken appellant’s daughter into their home where she is considered and treated as a member of their family. The two older girls help her in many ways, with her hair, her clothes, etc. She and the Althoffs’ son go to school together. There is ample testimony that the Althoffs have a good home and home life and that appellant’s daughter is well cared for and happy.

The trial judge interviewed appellant’s daughter in chambers in the presence of attorneys for both sides. She expressed her preference to continue to live with her aunt and uncle and cousins in Tennessee.

The court made détailed findings, among them the following: (1) Both the Richardson home and the Althoff home are physically and economically adequate for the care and custody of the child; (2) both the Richardsons and the Althoffs are fit and proper persons to have care and custody of the child; and (3) the best interest and welfare of the child would be served by allowing her to remain in the Althoff home.

The court concluded that neither of the parties have a personal or property right to custody, the real party in interest being the child herself, who has the right to have her custody awarded to the persons who can best serve her interest and welfare.

OPINION

Appellant has briefed eight points of error in which he asserts that the trial court erred (1) and abused its discretion in awarding the child to the aunt after the mother had become insane and the father was found to be a fit and proper person to have custody; (2) as a matter of law in placing custody in aunt and uncle when there was no allegation, finding or conclusion that the best interest of the child demanded such an award of custody; (3) in awarding custody in aunt and uncle after legal custody had vested in the father as a matter of law following the mother’s insanity; (4) in concluding as a matter of law that the father had no personal right to custody after the mother became of unsound mind; (5) in awarding custody to aunt and uncle when there was no finding or claim that the child was dependent and neglected; (6) in awarding custody to an outsider, as such award is insufficient for the best interest of the child after a finding that the father was fit to have custody; (7) in awarding custody to aunt and uncle where the evidence is insufficient and the law presumes that the best interest of the child is served by awarding custody to the parent; and (8) abused its discretion in awarding custody to aunt and uncle while custody of the brothers remained in the father, thereby dividing the custody of the children.

We are of the opinion that all of appellant’s points of error should be overruled. As a general rule when one parent who has been awarded custody dies or becomes insane and a change in custody becomes necessary, the other parent has a right of custody to his or her own child superior to the right of others, such as an aunt. But the general rule is not applicable when circumstances are present which impel a court in the exercise of its discretion and for the best interest of the child to award custody to someone other than a parent, such as an aunt. For the best interest of the child is then paramount. It is above the right of the parent to have custody. Herrera v. Herrera, 409 S.W.2d 395 (Tex.Sup.1966); Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.1963); Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955); Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894); Davis v. Sears, 35 S.W.2d 99 (Tex.Comm’n App.1931).

In this case the mother, not the father, was awarded legal custody upon the granting of the divorce. The actual care and custody of the child with the father’s consent and approval was entrusted to a worthy grandmother. The child and the father were and still are virtual strangers. For about nine years following the separation of the parents in 1958 the father rarely saw the child, and not at all for the last five years. For more than a year following the commitment of the mother and the death of the grandmother the child has lived happily in the care and custody of her aunt, uncle and cousins in Tennessee, sharing their home, companionship and love as a member of their family. Though the father is not unfit and the stepmother has proved herself to be a very worthy person indeed, we cannot say that under the circumstances the court abused its discretion in awarding custody to the aunt. To have done otherwise would have been to disturb relationships which have taken root and to which the child has happily adjusted. To have placed her in the care and custody of her father would have required the little girl to have made another adjustment in the home of parents who for all intents and purposes are strangers to her. Appellant’s points are overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: BATEMAN, Justice.

text:
    Warren CASTLE, Appellant, v. Charles BERG, Appellee.
    No. 16912.
    Court of Civil Appeals of Texas. Dallas.
    May 12, 1967.

      Paul Thorp, of Matthews, Weaver & Thorp, Dallas, for appellant.
    Blair Rugh, of Witts, Ewing, Lee & Rugh, Dallas, for appellee.
   BATEMAN, Justice.

The appellee Charles Berg obtained a judgment against appellant Warren Castle, a resident of Oklahoma, for the value of certain materials and services furnished by appellee in decorating appellant’s home in Oklahoma. Citation was served by delivering the same to the Secretary of State of Texas as agent of appellant pursuant to the terms of Section 3 of Article 2031b, Vernon’s Ann.Civ.St. Appellant entered a special appearance pursuant to Rule 120a, Texas Rules of Civil Procedure, moving to dismiss the suit for lack of jurisdiction over the person of appellant. Appellant appeared by his attorney at the hearing of this motion, but when the motion was overruled the attorney with leave of court withdrew and did not file an answer. The court then heard the appellee’s evidence and rendered judgment for the debt. Appellant appeals on seven points of error.

The first three points of error challenge the jurisdiction of the Texas court to render the judgment against appellant in personam because he was not personally served with process within the state and was not subject to substituted service under Art. 2031b, V.A.C.S., not having engaged in business in Texas and not having had sufficient “minimal contacts” with Texas to give Texas courts in personam jurisdiction over him.

In examining the evidence adduced at the hearing of the motion to dismiss, we find it to be sufficient to establish, at least prima facie, that the appellant, a resident of Oklahoma, came to Dallas, Texas and entered into an oral contract with appellee where-under the latter would purchase the materials and furnish the necessary services to decorate appellant’s Oklahoma home with suitable furniture, floor and wall coverings, draperies, etc. It was not specified in the ■original agreement where any of the materials would be purchased, or where the work of fabricating any of them would be performed, although appellee saw fit to purchase many of the materials in Dallas and to perform the necessary services in making the draperies at his workshop in Dallas. This was with appellant’s consent; and on one occasion appellant, while in Dallas primarily for another reason, assisted appellee in locating some of the materials.

After Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, in 1877, wherein the court held rather broadly that a personal judgment rendered in a state court against a nonresident, without personal service of process upon him within the state or his appearance in the action, was invalid, the trend of decisions by the United States Supreme Court has been “toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.” McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. Such jurisdiction has been recognized if the defendant, though a nonresident, have certain “minimum contacts” with the forum state such that “traditional notions of fair play and substantial justice” are not offended by the maintenance of the suit. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057. Such minimum contacts as the making of the contract, out of which the suit arose, in the forum state have been held sufficient to accord jurisdiction to that state without doing violence to due process. McGee v. International Life Ins. Co., supra, followed by our Supreme Court in O’Brien v. Lanpar Co., Tex.Sup.1966, 399 S.W.2d 340.

The application of the rules laid down by the foregoing authorities requires a holding that appellant’s minimum contacts with the State of Texas were such as to give the trial court jurisdiction over his person, provided he was properly served under the appropriate statute. The contract was made in Texas and was, with appellant’s consent, partially performed in Texas. We think these facts alone clearly bring this case within the rule of O’Brien v. Lanpar Company, supra. Appellant’s first three points of error are overruled.

By his fourth, fifth and sixth points of error the appellant urges that appellee’s pleadings and proof failed to invoke the provisions of Art. 2031b, V.A.C.S. and that consequently it was error for the court to overrule his motion under Rule 120a, T.R. C.P., and to render judgment by default against him.

The pertinent parts of Art. 2031b, V.A. C.S. are:

Sec. 2. “When any * * * non-resident natural person * * * shall engage in business in this State, * * * service may be made by serving a copy of the process with the person who * * * is in charge of any business in which the defendant or defendants are engaged * * * »
Sec. 3. “Any * * * non-resident natural person that engages in business in this State * * * and does not maintain a place of regular business in this State or a designated agent upon whom service may be made * * *, the act or acts of engaging in such business * * * shall be deemed equivalent to an appointment * * * of the Secretary of State of Texas as agent upon whom service of process may be made * *
Sec. 4. “For the purpose of this Act, * * * any * * * non-resident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State * *

Appellee’s petition alleged that appellant “is doing business in the State of Texas as defined by Art. 2031-B, Texas Revised Civil Statutes, but has appointed no agent for service of process within the State of Texas,” thus invoking Section 3 of Article 2031b. Unless the record before us affirmatively shows a strict compliance with the mode of service set forth in Article 2031b, these points must be sustained. McKanna v. Edgar, Tex.Sup.1965, 388 S.W.2d 927, 929.

In considering this matter we shall assume that appellant was “doing business in this State” since he did enter into a contract with a resident of Texas to be performed in part in Texas. It was also shown that appellant owned and operated, through a local manager, several apartment buildings in Dallas.

Resort can be had to Section 3, of Article 2031b, only if Section 2 is unavailable. McKanna v. Edgar, supra. It was also held in that case that a plaintiff seeking to obtain substituted service under Section 3 by serving the Secretary of State must necessarily allege that the defendant “does not maintain a place of regular business in this State or a designated agent upon whom service may be made.” The nonexistence of both of these conditions is a necessary prerequisite to the applicability of Section 3 because Section 2 provides that if such a place of business is maintained service may be made by serving the person in charge of such business. Not only did ap-pellee fail to allege the absence of a place of regular business maintained in Texas by appellant, but the proof showed that in fact he did maintain such a place of business, to-wit, the apartment buildings. Under these circumstances, service on the Secretary of State was not authorized.

Appellee argues that McKanna is not applicable here because it concerned a default judgment, the defendant not appearing, whereas in this case the defendant (appellant) did appear and thus waived any right he may have had to complain of defective service. We do not agree with ap-pellee. Appellant made only a limited or special appearance, as he was authorized to do by Rule 120a, T.R.C.P. Appellant sought no judgment or adjudication by the court of any question except that raised by the motion to dismiss. Therefore, we overrule this contention. Investors Diversified Services, Inc. v. Bruner, Tex.Civ.App., 366 S.W.2d 810, 815, wr. ref. n. r. e.

Appellant's fourth, fifth and sixth points of error are sustained.

Appellant’s seventh point of error on appeal complains of the default judgment because it was rendered without a jury trial, a jury having been demanded by appellee and the jury fee paid. However, the judgment recites that both parties waived the jury, and appellant points to nothing in the record to the contrary. Accordingly, his seventh point of error is overruled.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: PHILLIPS, Chief Justice. HUGHES, Justice. PHILLIPS, Chief Justice.

text:
    Merle MOORE, Individually and as Next Friend of John David Bramlett, a Minor, Appellant, v. John Clifton BRAMLETT, Appellee.
    No. 11494.
    Court of Civil Appeals of Texas. Austin.
    April 19, 1967.
    Rehearing Denied May 10, 1967.

      Paul H. Stanford, Cervin & Stanford, Dallas, for appellant.
    Elihu E. Berwald, Rosenfield, Berwald & Mittenthal, Dallas, for appellee.
   PHILLIPS, Chief Justice.

This is an appeal from a summary judgment rendered by the court in favor of the defendant below and the appellee here, John Clifton Bramlett. Plaintiff below and appellant here, Merle Moore, had brought the suit against appellee individually and as next friend for her infant son John David Bramlett for damages by virtue of a breach of promise to marry, and in the alternative for support of her illegitimate son by virtue of hereinafter described sections of the Canal Zone Code and, further, in the alternative for appellee’s breach of promise to contribute to the support of appellant’s infant son.

As stated above, the trial court granted appellee’s motion for summary judgment and appellant duly perfected her appeal to this Court.

We reverse the judgment of the trial court and remand the case for trial.

Appellee, a Captain in the Air Force with a wife and two children living in Dallas, Texas, was stationed in the Canal Zone when he met the appellant, a single girl twenty eight years old, who was residing in the Canal Zone as a teacher employed by the U. S. Government.

Appellant testified in her deposition, which was incorporated into her answer to appellee’s motion for summary judgment, that she was seduced by appellee in October, 1964 by his telling her that he loved her and that he wanted to marry her. She learned that she was pregnant in the first part of November, 1964 and that she did not learn that he was a married man until the “first quarter” of November, 1964.

Subsequently, in June, 1965, appellee traveled to Dallas and was introduced to appellant’s friends and relatives and represented himself as appellant’s husband and the father of appellant’s child. Appellee’s son, John David Bramlett, was born in July, 1965. There is, apparently, no question but that John David is appellee’s son.

Appellant is before this Court with three points of error, the first being the error of the trial court in granting appellee’s motion for summary judgment for the reason that there is a material issue of fact as to whether appellee promised to marry appellant under circumstances sufficient to constitute a binding contract.

We sustain this point.

It is well settled in Texas that the marriage of the promisor at the time of making the promise is no defense to an action for damages by virtue of a breach of promise where the fact of the promisor’s marriage is unknown to the promisee and where the promisee in good faith relies on the promise and likewise enters into the marriage agreement. Robinson v. Shockley, 266 S.W. 420 (Tex.Civ.App. Amarillo, 1924, no writ); Dismukes v. Burt, 279 S.W.2d 493 (Tex.Civ.App. Fort Worth 1955, no writ).

From a review of this entire record we find that there is sufficient evidence to raise an issue of fact as to whether there was a promise of marriage and a subsequent reliance thereon.

In her deposition appellant admitted that she had previously had relations with another man on two occasions and that she had been engaged to marry this man. Ap-pellee contends that damages for the breach will not lie inasmuch as this intercourse of appellant prior to the promise to marry, and then unknown to appellee, is a defense to the action, since it violates the implied representation by appellant that she is chaste. This is a valid general statement of the law; however, under the rule stated in Coombs v. Fazzio, 386 S.W.2d 650, (Tex.Civ.App. San Antonio 1965, writ ref’d. n. r. e.), the Court held in a situation similar to this that by virtue of his own frequent illicit relations with the promisee a fact issue was raised as to whether there was a misrepresentation of the promisee’s chastity. While in Coombs illicit relations were had by the parties for several months prior to the proposal of marriage, the record here is not clear how many illicit liaisons were had by the parties at bar before the alleged proposal of marriage. Appellant’s deposition does • reflect, however, that relations were had by these parties frequently from October of 1964 until the summer of 1965 and that during this time appellee continuously assured appellant that he wanted to marry her. In fact he represented himself to be appellant’s husband as shown above.

Coombs cites with approval from Vogt v. Guidry, 220 S.W. 343 (Tex.Civ.App. San Antonio 1920, writ ref’d.) to the effect that the applicable rule as to the elements of fraud necessary to vitiate a contract to marry are similar to those which would invalidate an ordinary contract.

It is our opinion that the pleadings and deposition of the appellant raise a fact issue as to whether there was such an implied representation by the appellee and whether appellant relied on such representations.

Appellant’s second point is the error of the court in granting summary judgment for the reason that Title 8, Sections 461, 464, 465, 466 and 467, Canal Zone Code, requires appellee to support his illegitimate child.

We overrule this point.

Title 8, Section 461 of the Canal Zone Code provides as follows:

“(a) An action pursuant to this sub-chapter may be brought by:
(1) a female resident of the Canal Zone who has delivered an illegitimate child or who is pregnant with a child which, if born alive, would be illegitimate; or
(2) an illegitimate child or, if the illegitimate child is a minor or otherwise incompetent, his next friend.
(b) An action for the support of a child still unborn may not be brought unless the mother files a certificate from an authorized physician specifying that she is pregnant. * * * ”

Appellant cites this Court to the decision of our Supreme Court in Bjorgo v. Bjorgo, 402 S.W.2d 143, 1966, holding that a Texas resident could be held liable for the support of his illegitimate child under a support obligation incurred in Kentucky. Here the action was sought to be enforced and was enforced by the court under a statute of this State known as the Enforcement of Support Act, Vernon’s Tex.Rev.Civ.Stat. Ann. art. 2328b-l et seq.

Bjorgo is not in point here as the case at bar was not brought under the Act consequently is controlled by the holding of our Supreme Court in State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 67 A.L.R.2d 758, 1958, which holds that the statutes of a state ex proprio vigore have no extraterritorial effect.

Appellant’s point of error number three is the error of the court in granting defendant’s motion for summary judgment for the reason that there is a material issue of fact as to whether appellee promised to support appellant’s illegitimate son.

We sustain this point.

Plaintiff pleaded that while they were both still residents of the Canal Zone, appellee acknowledged paternity of his illegitimate child and led her to believe he would contribute to the support of the child and appellant in reliance of this agreement did forebear instituting paternity proceedings under the above-mentioned Title 8 of the Canal Zone Code.

We hold that appellant was entitled to the protection of the Canal Zone Code during her residency there and that her pleadings alleging a contract of support raise a fact situation pertinent thereto.

Appellee contends that by her deposition, appellant has admitted to being a citizen of Dallas. There is no doubt that after leaving the Canal Zone, before the baby was born, appellant went to Dallas where she had lived previously and became a resident there; however, her residency status at the time she was living in the Canal Zone during which time she conceived, is a matter of fact to be determined, 98 A.L.R. 2d 488.

We reverse and remand this cause for trial.

Reversed and remanded.

CONCURRING OPINION

HUGHES, Justice.

The wrongful conduct of Miss Moore and Mr. Bramlett in the Canal Zone resulting in her pregnancy and the birth of John David Bramlett in Dallas, Texas, would have, under the statutes of the Canal Zone, given Miss Moore, from the time of such pregnancy and if then a resident of the Canal Zone, a cause of action against Mr. Bramlett for the maintenance of such minor until it reached the age of 21 years. Such statutes also gave the minor, irrespective of the residency of either the father or mother, a cause of action against its father for its maintenance.

I do not believe that the minor has a cause of action under the Canal Zone statutes maintainable in Texas against Mr. Bramlett for while the tort, the wrongful conduct of the parties from which injury and damages resulted to this child, occurred in the Canal Zone such injuries and damages were and are being sustained in Texas. From the following statement of the law, taken from 16 Am.Jur.2d Sec. 72, p. 113, I am of the opinion that, since Mr. Bram-lett is not liable under the Texas law for the support of his son David, he cannot be held liable under the Canal Zone Code:

“Where the issue is the choice between the law of the place where an allegedly wrongful act or omission took place and the law of the place where the injury or harm was sustained, the general rule is that the place of the tort, within the contemplation of the rule that the law of the place of the tort or wrong governs liability and other substantive matters, is the place of the injury or harm.”

Nor do I believe that Miss Moore has a cause of action against Mr. Bramlett under the Canal Zone Code for the reason that she is not suing as a pregnant woman and she did not deliver the child in the Canal Zone.

I concur in the decision of the Court.

ON MOTION FOR REHEARING

PHILLIPS, Chief Justice.

We withdraw from our opinion the statement: “There is apparently, no question that John David is appellee’s son.” This statement is not necessary to our holding therein.

In all other respects appellee’s motion for rehearing is overruled.

Motion overruled.

      . Art. 2328b-3 Sec. 7 is as follows:
      “Duties of support enforceable under this law are those imposed or imposable under the laws of any state where the alleged obligor was present during the period for which support is sought or where the obligee was present when the failure to support commenced, at the election of the obligee, but shall not include alimoDy for a former wife.”


author: GRISSOM, Chief Justice.

text:
    Isidoro MEZA, Appellant, v. Abel RAMIREZ, Appellee.
    No. 4134.
    Court of Civil Appeals of Texas. Eastland.
    March 24, 1967.

      Rey & Rey, Joseph J. Rey, El Paso, for appellant.
    A. C. Gonzalez, Jr., and Robert L. Millard, Collins, Langford, Pine & Woodard, Glenn E. Woodard, John P. Foxworth, Ass’t County Atty., El Paso, for appellee.
   GRISSOM, Chief Justice.

Isidoro Meza obtained a judgment against Abel Ramirez. Meza caused the Sheriff to levy a writ of execution upon a building which was later determined to be the business homestead of Ramirez. The Sheriff sold said building for $4,550.00 to Manuel R. Flores, whereupon Ramirez obtained a temporary injunction restraining the Sheriff from completing the sale and executing a deed to Flores. Meza filed a motion to quash. Ramirez filed an amended petition bringing all of said parties into court and seeking an adjudication that the building levied on was his business homestead and exempt from a forced sale to satisfy Meza’s debt. The Sheriff paid the $4,550.00 into the registry of the court and prayed that the court decree to whom it belonged. Apparently, Meza’s motion to quash was not acted upon. Upon a trial to the court on the merits, the court held that the building upon which Meza caused the Sheriff to levy a writ of execution was the business homestead of Abel Ramirez and not subject to sale under execution for said judgment debt. It ordered the $4,550.00 returned to the would be purchaser, Flores. From this final judgment, Meza has appealed. His points of error are that the court erred in overruling his motion to quash because (1) Ramirez did not tender the purchase price to Flores, (2) Ramirez failed to implead necessary parties and (3) Ramirez failed to plead his homestead right.

Article 16, Section 49 of the Constitution of Texas, Vernon’s Ann.St. provides that the homestead of a family shall be protected from forced sale for the payment of all debts, except for the purchase money, taxes and improvements thereon. Meza’s debt was not incurred for any of such exceptions. Said Article further provides that no other lien on the homestead shall ever be valid. Article 16, Section 50 of the Texas Constitution provides that a homestead in a city shall consist of lots not to exceed in value $5,000.00 at the time of their designation as the homestead, without reference to the value of improvements thereon, provided that it shall be used for a place to exercise the business of the head of a family and, further, that a temporary renting of the homestead shall not change its character. Appellant’s points may not raise such questions, but the testimony in favor of Ramirez and in support of the judgment was unquestionably sufficient to aumorize the court to find that the building levied upon was the business homestead of Abel Ramirez and wife and to show compliance with all requisites of our Constitution to exempt it from a forced sale to satisfy Meza’s debt. Sale of Ramirez’ homestead was not consummated, but the attempted sale was void. 28 Tex.Jur.2d, Section 157, page 572 ; 25 Tex.Jur.2d, Section 40, page 39.

Considering appellant’s specific points, point one presents the contention that the court erred in overruling his motion to quash because Ramirez did not tender to Flores the purchase price. It might be questioned whether Meza has any jus-ticiable interest in protecting the right of Flores to recover his purchase money. In any event, the money he paid the Sheriff was deposited in the registry of the court and then returned to him. Appellant’s second point is that the court erred in overruling said motion because Ramirez failed to bring in necessary parties. The judgment debtor, the judgment creditor, the Sheriff and the would be purchaser at the execution sale were all the parties necessary to rendition of a final judgment and they were parties to the suit upon the trial on the merits when a final judgment was rendered. Appellant’s third point is that the court erred in overruling his motion because Ramirez failed to plead his homestead right. Ramirez specifically pleaded that the property levied upon was his business homestead and facts supporting that conclusion. He alleged that the purported sale was void. He prayed that he have judgment for the title to and possession of his alleged business homestead and that the $4,550.00 be returned to Flores. Such was the effect of the judgment rendered. All points have been carefully considered. They are overruled. The judgment is affirmed.


author: DENTON, Chief Justice.

text:
    EMPIRE LIFE AND HOSPITAL INSURANCE COMPANY, Appellant, v. Jessie Finnis SHANNON, Appellee.
    No. 7719.
    Court of Civil Appeals of Texas. Amarillo.
    May 15, 1967.

      Robinson & Higgins, Denison, Tom Higgins, Denison, of'(counsel, for appellant.
    Huff & Bowers, Lubbock, Robert W. Gauss, Lubbock, of counsel, for appellee.
   DENTON, Chief Justice.

This is a suit to recover benefits under a hospital and accident insurance policy. Ap-pellee, Jessie Finnis Shannon, the insured, died before trial and his widow was substituted as party plaintiff. Plaintiff also sought recovery for the statutory penalty and attorneys’ fees. The trial court’s judgment, based on a jury verdict, was rendered for appellee for hospital and medical benefits under the policy, for statutory penalty and for attorneys’ fees.

Based upon the appellee’s application of December 3, 1963, appellant’s predecessor issued the insurance policy in question on December 12, 1963. Appellee was hospitalized on January 25, 1965. Medical and hospital benefits resulting from this confinement constitutes the basis of this suit. The insurance company denied liability and pleaded the defense that the insurance policy was procured by fraudulent representation.

Appellant contends the trial court erred in failing to grant its motion for judgment; and in refusing to disregard the jury’s finding to Special Issue No. 3 and grant a judgment non obstante veredicto.

The application for insurance, signed by Shannon, inquired if he had had a number of diseases including arthritis, heart trouble and cancer, among others. He answered this inquiry “as #8.” Question 8 read: “Has any of the above named persons within the past five years had medical or surgical advice or treatment of any illness or inquiry?” He answered “Yes” and listed treatment for arthritis in 1960 by Dr. R. M. Mayer, and stated he was treated for ulcers in 1963 by the same doctor. He listed no other illnesses or diseases. Dr. Mayer testified at the trial and described various illnesses suffered by Shannon from October 1960 to the time he was hospitalized in January 1965. During this period Dr. Mayer treated Shannon for an enlarged prostate; and in November 1962 he removed Shannon’s right testicle. When Shannon was hospitalized in January and February 1965, it was determined he suffered from cancer of the rectum, but not of the prostate. Dr. J. Walker Davis operated on Shannon for the rectal disease and he described Shannon’s prostate as “another 70-year old prostate”. Cancer was not positively diagnosed until Shannon entered the hospital in 1965. The parties stipulated the insurance company relied upon the application for insurance as written when it issued the policy involved. Attorneys’ fees were also stipulated in the event of recovery by the plaintiff.

The trial court submitted special issues to the jury which submitted the defense of fraudulent representation. The jury found: (1) Shannon failed to include all his previous ailments and physical condition in answers to certain questions in the application for insurance; (2) that such failure on his part was known to him at the time the application was made; (3) that such failure was not willfully and with intent to induce the insurance company to issue the policy; (4) that the principal purpose of Shannon’s confinement in the hospital in January 1965 was not for physical examination and diagnosis.

It is well settled that in order to avoid a policy of insurance, false statements must have been made willfully and with design to deceive or defraud. Clark v. National Life & Accident Insurance Co., 145 Tex. 575, 200 S.W.2d 820. Allen v. American National Insurance Co., 380 S.W.2d 604 (Sup.Crt.). Great Southern Life Insurance Co. v. Doyle, 136 Tex. 377, 151 S.W.2d 197. The basis of the claim for benefits here is the hospitalization and medical and surgical treatment for the rectal condition. There is no evidence this condition existed until some fourteen months after the policy had been issued.

It is also a settled rule of law that to avoid a policy of insurance because of misrepresentation, the burden is upon the insurance company to plead and prove, not only that the answers made by the insured were false, but that the insured knew they were false, and that he made them willfully and with the intention of inducing the insurer to issue him a policy. Clark v. National Life & Accident Insurance Co. (supra); Golden State Mutual Life Insurance Co. v. White (Tex.Civ.App.) 374 S.W.2d 901 (Ref. N.R.E.); Occidental Life Insurance Co. of California v. King (Tex.Civ.App.) 365 S.W.2d 815 (Ref. N.R.E.); Universal Life & Accident Insurance Co. v. Murphy (Tex.Civ.App.) 368 S.W.2d 878. The jury found some of the representations were false, however the jury further found none of the representations were made willfully with the intent of inducing the defendant to issue the policy. Since the burden of proof was upon the insurance company to establish by competent probative evidence the essential elements of fraud, it was incumbent upon it to obtain a jury finding on all elements of the alleged misrepresentations. American Central Life Insurance Co. v. Alexander (Tex.Comm.App.) 56 S.W.2d 864; Clark v. National Life & Accident Insurance Co. (supra). The insurance company did not sustain its burden in that it has failed to secure a jury finding that the false representations were willfully made with the intent to induce the issuance of the policy.

The insurance company urges that since it is undisputed, and the jury found, the false representations were made; and that the insured knew the representations were false, it necessarily follows as a matter of law such false representations were an effort to induce the company to issue the policy. We do not agree. The record raised the issue of fact, which the jury found adversely to the company’s contention.

The judgment of the trial court is affirmed.


text:
    Joe A. ADAMS et al., Appellants, v. Wilmer D. MASTERSON, Independent Executor of Herbert Patrick Nettleton, Deceased et al., Appellees.
    No. 16910.
    Court of Civil Appeals of Texas. Dallas.
    April 28, 1967.
    Rehearing Denied May 19, 1967.
    Patrick E. Higginbotham of Coke & Coke, Dallas, for appellants.
    Wilmer D. Masterson of First National Bank Bldg. Kilgore & Kilgore, Dallas, for appellees.
   BATEMAN, Justice.

In this suit for declaratory judgment construing a will and codicil, the sole question to be resolved is: Does the revocation of gifts of one-half of the residuary estate increase the remaining gifts from a half to the whole, or does the one-half of the residuary estate, covered by the revoked gifts, pass by intestacy to the heirs at law ? The independent executor of the will brought suit for instructions, and filed a motion for summary judgment, which was granted.

The appellants are two of the heirs at law, each being entitled to one-twelfth of such part of the residuary estate as may be held to pass by intestacy, but entitled to nothing under the will. They appeal from that portion of the judgment which decreed that an undivided one-half of the residue did not pass by intestacy, but went to the remaining residuary legatees.

After reciting several special bequests, the will contained a residuary clause the pertinent parts of which are:

“THIRD: RESIDUARY ESTATE. I give, devise and bequeath my entire residuary estate * * * to the following named persons in the proportions set opposite the name of each if they are living at the time of my death, otherwise, the share of each such person to vest in such person’s heirs, or, if such person has died leaving a will, such share to vest in such person’s devisees and legatees under such will just as if the bequests made herein were a part of such person’s estate at the time of his death.”

Then followed the names of five individuals. Opposite each of the first two names was the fraction “¼,” and opposite each of the last three names was the fraction “Ye.” In a subsequent codicil to the will the testator revoked the two gifts of one-fourth each, but made no specific disposition of the half of the residuary estate covered thereby.

Most of the cases cited by appellees merely set forth well recognized rules of construction, including the rules that the making of a will gives rise to the presumption that the testator did not intend to die intestate as to any part of his estate, and that if the will is open to two reasonable constructions, one resulting in intestacy and the other leading to a valid testamentary disposition, the construction that prevents intestacy is favored and will be adopted by the court. 61 Tex.Jur.2d, Wills, § 136, p. 256; Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096, 79 A.L.R. 1163; Kuehn v. Bremer, Tex.Civ.App., 132 S.W.2d 295, wr. ref.

But there is no room for construction here. The will and the codicil are-unambiguous. The trial court was persuaded to increase the share given to each of the appellee-beneficiaries from one-sixth to one-third because of a supposed intention of the testator that this be done. However, the testator expressed no such intention, and it is our view that rules of construction may not be employed by the courts to make a disposition which is not included in the will, for “this would amount to ascertaining the testator’s intention from what he failed to say rather than from what he did say.” 61 Tex.Jur.2d, Wills, § 129, p. 251; Wolkewitz v. Wood, Tex.Civ.App., 216 S.W.2d 611, wr. ref. n. r. e.; Brooking v. McCutchen, Tex.Civ.App., 135 S.W.2d 197, no wr. hist.; Atwood v. Kleberg (5th Cir.), 163 F.2d 108, 114, cert. den. 332 U.S. 843, 68 S.Ct. 267, 92 L.Ed. 414; Dailey v. Dailey, 224 Ill.App. 17, cert. den.

A testator may leave his property to whomever he chooses, wholly without regard to the laws of descent and distribution ; but he cannot repeal those laws. The only way he can avoid the effect thereof and disinherit an heir is by actually giving the property in question to another. Powers v. Powers, 75 R.I. 461, 67 A.2d 837, 839. Appellants’ rights under the laws of descent and distribution cannot be taken from them by supposing that the testator had an intent to do so but which he did not declare, expressly or by implication.

That part of the judgment appealed from which directs the executor to distribute six certain special bequests is affirmed, but that part which directs the distribution of the entire residuary estate to Mrs. Sarah N. Powell, Douglas Nettleton, Jr. and Mrs. Dorothy Masterson, in the proportions of one-third each, is reversed and here rendered directing the executor to distribute ■such residuary estate, one-half to the heirs at law of Herbert Patrick Nettleton, one-sixth to Mrs. Sarah N. Powell, one-sixth to Douglas Nettleton, Jr., and one-sixth to Mrs. Dorothy Masterson. All costs are ■taxed against the appellees.

Affirmed in part and reversed and rendered in part.

       §§ 37-47, Probate Code of Texas, V.A.T.S.


author: BARROW, Chief Justice.

text:
    Amelia A. GARCIA et al., Appellants, Appellants, v. KINGSVILLE FIRST SAVINGS & LOAN ASSOCIATION, Appellee.
    No. 14594.
    Court of Civil Appeals of Texas. San Antonio.
    May 10, 1967.
    Rehearing Denied May 31, 1967.
    Utter & Chase, Corpus Christi, Nago L. Alaniz, San Diego, for appellants.
    David A. Grose, Charles R. Nixon, Alice, for appellee.
   BARROW, Chief Justice.

A venue action involving Subd. 5, Art. 1995, Vernon’s Ann.Civ.St. Appellee brought this suit in the District Court of Jim Wells County against appellants, Amelia A. Garcia, individually and as temporary administratrix of the estate of Francisca P. Garcia, deceased, and Porfirio Garcia, to recover on a promissory note executed by Francisca P. Garcia on September 1, 1964. Amelia and Porfirio were alleged to be the sole heirs of Francisca.

Amelia filed her plea of privilege to move said- cause to Duval County, the county of her residence, and where the land was located "upon which a lien was executed as security for said note. Porfirio filed his plea to move said cause to Harris County where he resided. After a nonjury trial the court overruled both pleas of privilege.

Appellants -urge by their first two points that there is no evidence, or, in the alternative, the evidence is insufficient to prove a cause of action on behalf of appellee against appellants. The note which was expressly payable in Alice, the county seat of Jim Wells County, was introduced in evidence. The pleading of appellants was also introduced, wherein appellants judicially admitted that the note was signed by deceased. It is urged that appellee failed to sustain venue, in that the note was payable to Bertagna Home Builders, Inc., and there was no evidence to show the assignment to appellee by Bertagna or any consideration for such an assignment.

The venue facts necessary under Subd. 5, supra, are: (1) that defendant is a party reached by the statute; (2) that the claim is based on a written contract; (3)that the contract was entered into by the defendant or by one authorized to bind him; (4) that the contract by its terms provides for performance of the obligation sued upon in the county of suit. Proof of the existence of a cause of action is not required. Southwestern Inv. Co. v. Allen, 160 Tex. 258, 328 S.W.2d 866 (1959); Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (1942); Roach v. Schaefer, Tex.Civ.App., 214 S.W.2d 128, no writ; Gifford-Hill & Co. v. Hearne Sand & Gravel Co., 183 S.W.2d 766, no writ; Ryan v. Texas-Canadian Oil Corp., Tex.Civ.App., 146 S.W.2d 805, no writ; McDonald, Texas Civil Practice, § 4.11.1; Clark, Venue in Civil Actions, Ch. 5, § 6.

When appellee introduced the note in evidence, it thereby proved a contract in writing that is performable in Jim Wells County. Thompson v. Republic Acceptance Corp., 388 S.W.2d 404 (Tex.1965); Southwestern Inv. Co. v. Allen, supra. Under the authorities cited in the preceding paragraph, it was not necessary for appellee to prove that it owned the note or other matters to show existence of the cause of action alleged.

Appellants urge, under their third point of error, that the District Court of Jim Wells County did not have jurisdiction in that probate proceedings were pending in Duval County on the estate of Francisca P. Garcia, deceased. The only matters before the trial court on this hearing and before us now are the pleas of privilege. Rule 84, Texas Rules of Civil Procedure. Insofar as venue is concerned, it is settled that the administratrix or heir of a deceased person is bound by the obligations of the deceased and venue may be maintained, under Subd. 5, supra, in the county where the written contract is performable. Thane v. Dallas Joint Stock Land Bank, Tex.Civ.App., 129 S.W.2d 795, no writ; Quinn v. Home Owners’ Loan Corp., Tex.Civ.App., 125 S.W.2d 1063, writ dism’d; McDonald, Texas Civil Practice, § 4.11.2.

Appellants urge by their final point that, since appellee seeks a foreclosure of its lien on land located in Duval County, venue is in Duval County under the mandatory provisions of Subd. 14, Art. 1995, supra. The dominant purpose of appellee’s suit is to recover judgment upon the promissory note which is expressly made payable in Jim Wells County, and venue is maintainable there, although said note is secured by a lien on land located in Duval County. Bennett v. Langdeau, 362 S.W.2d 952, 955 (Tex.1962); Quinn v. Home Owners’ Loan Corp., supra; McDonald, Texas Civil Practice, § 4.22.3, p. 490.

The judgment of the trial court is affirmed.

      . Joined as a party defendant, but not a party to this appeal.


author: TIREY, Justice.

text:
    AMERICAN CAPITOL INSURANCE COMPANY et al., Appellants, v. Vernon BAUGH, Appellee.
    No. 4597.
    Court of Civil Appeals of Texas. Waco.
    May 11, 1967.
    Mac L. Bennett, Jr., Normangee, Broady, Kells & Rorschach, Houston, for appellant.
    Roger Knight, Jr., Madisonville, for ap-pellee.
   OPINION

TIREY, Justice.

This is an appeal from an order overruling plea of privilege of each of the defendants to be sued in the counties of their respective residences. Defendants, American Capitol Insurance Company, a corporation, Fred Armstrong, Jr., Richard Parrish, and Bill Sartain were resident citizens of Harris County, Texas. Defendant, Doy el Chandler’s residence was in Jasper County, Texas. The case was tried without the aid of a jury. The court overruled each of the pleas of privilege. There was no request for findings of fact and conclusions of law, and none were filed. Plaintiff seasonably filed his controverting affidavit to the pleas of privilege and made his original petition a part of the controverting plea. The controverting affidavit alleged that the District Court of Madison County had venue of this cause under the provisions of Subdivisions 7, 28 and 28a of Article 1995, Revised Civil Statutes of the State of Texas. (On trial, plaintiff stipulated that subdivisions 28 and 28a did not apply)- We overruled this contention and REVERSE and RENDER this cause with instructions.

In plaintiff’s controverting affidavit we find the following statement:

“Plaintiff’s Original Petition further avers and is true and correct that on or about September 1, 1964, defendant Doyel Chandler, acting individually and in the scope of his authority as an agent of defendant company, initiated a course of action designed to induce plaintiff to become an agent of defendant company. It is further alleged, and same is true and correct, that on or about May 1, 1965, defendant Chandler, acting individually and in the scope of his authority as an agent of defendant company, made certain representations that were not true in whole or in part, and induced plaintiff to enter into a contract with defendant company. In furtherance of defendant company’s program of recruiting plaintiff as its agent, defendant Chandler repeated said false representations and urged plaintiff to attend a series of lectures to he held in Houston, Harris County, Texas, on May 2 and 3, 1965.”

In plaintiff’s original petition he alleged that beginning on or about September 1, 1964, Chandler, acting individually and in the scope of his authority as agent of defendant company, initiated a course of action designed to induce plaintiff to become an agent of the company. That these representations were made in Madison County. It further alleged:

“ * * * Defendant Chandler and Defendant Company would give Plaintiff a guaranteed draw of $1,000.00 per month, reimburse Plaintiff’s telephone expenses incurred in selling insurance for Defendant Company, and service in a reasonable, businesslike manner all policyholders to whom Plaintiff should sell Defendant Company’s policies.”

The original petition further alleged that on or about May 1, 1965, he entered into a contract with Chandler and the company in reliance upon their representations and opened an insurance office in Madi-sonville in Madison County, Texas. The contract tendered in evidence is dated May 27, 1965. That contract provides in effect that all sums that become due and payable to plaintiff under the terms of the contract shall be payable in Houston, Harris County, Texas; it further provides for first year commissions on various types of policies, and also for renewal commissions from second to tenth year. There is no allegation in the petition nor in the controverting affidavit that plaintiff went to work for the defendant insurance company prior to the time that he executed the contract of May 27, 1965. There is no allegation as to the amount of the policies he wrote nor the commissions he earned by virtue of the terms of the contract. There is nothing in the contract tendered in evidence that defendants “would give plaintiff a guaranteed draw of $1,000.00 per month, * * (There is proof that he worked about ten months.) There is no allegation in the controverting affidavit nor in the original petition that there was any mistake or fraud in the drawing and execution of the contract, and there is no proof tendered as to the amount of insurance plaintiff wrote under the terms of his contract, and there is no proof that defendant, Chandler, was acting other than in the scope of his authority as a general agent of the company. Needless to say absent an allegation of mistake or fraud plaintiff could not change the terms of the contract by parol.

Appellants assail the judgment on what they assert as five points. They tender substantially one point, and that is that actionable fraud is not alleged and is not shown in this cause. We sustain this view. Since plaintiff’s services were rendered to the insurance company under a written contract, and since plaintiff has failed to allege and prove that defendant insurance company violated any of the provisions of the written contract between it and plaintiff, we see nothing in the proof that brings this asserted cause of action within the provisions of Subd. No. 7 of Article 1995, R.C.S., aforesaid. Defendant Chandler’s plea of privilege is sustained, and the cause of action as to him is transferred to the District Court of Jasper County. The cause of action against defendants, American Capitol Insurance Company, a corporation, Richard Parrish, A. Fred Armstrong, Jr., and Bill Sartain, each being residents of Harris County, their respective pleas of privilege are sustained and the cause of action asserted against each is transferred to the District Court of Harris County, Texas.

All costs incurred in the court below and all costs incurred here to date are taxed against plaintiff and the District Clerk of Madison County, Texas, is directed to make transcript of all the orders made and entered in said cause pursuant to the provisions of Rule 89, Texas Rules of Civil Procedure, and send same to the District Clerks of Harris County and Jasper County.

Reversed and rendered with instructions. See Stegall and Keating v. Lytle, Tex.Civ.App., 360 S.W.2d 898, (n. w. h.).


text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Mike Y. MUNOS, Appellee.
    No. 4151.
    Court of Civil Appeals of Texas. Eastland.
    April 21, 1967.
    Rehearing Denied May 19, 1967.
    Kerr, Fitz-Gerald & Kerr, L. Lloyd MacDonald, Midland, for appellant.
    Warren Burnett, Robert E. Hoblit, Odessa, for appellee.
   WALTER, Justice.

In a jury trial, Mike Y. Munos recovered judgment against Travelers Insurance Company for maximum benefits under the Workmen’s Compensation Act. Travelers has appealed.

It contends the court erred in rendering judgment for total and permanent disability because the evidence is insufficient and such jury findings are against the preponderance of the evidence. It says the evidence is insufficient to support the finding that Munos is not partially disabled and that such jury finding is against the preponderance of the evidence. It also contends there was insufficient evidence to support the jury findings that a prior and a subsequent injury did not contribute to his incapacity and that such findings are against the preponderance of the evidence.

We have considered all the evidence and have concluded that it is factually sufficient and that such findings are not against the great weight and preponderance of the evidence. “No Evidence” and “Insufficient Evidence” Points of Error by Chief Justice Calvert, Vol. 38, No. 4, T.L.R., 361.

We have considered all of appellant’s points and find no merit in them. They are overruled. The judgment is affirmed.