author: GRISSOM, Chief Justice.

text:
    Alva McGAFFEY et al., Appellants, v. Dee Brown WALKER, Appellee.
    No. 3876.
    Court of Civil Appeals of Texas. Eastland.
    May 8, 1964.
    Rehearing Denied June 5, 1964.

      Griffith & Lumpkins, Stuart B. Lumpkins, Waxahachie, Elizabeth Carp, Dallas, for appellants.
    Johnson, Guthrie, White & Stanfield, Curtis White, Dallas, for appellee.
   GRISSOM, Chief Justice.

On July 7, 1949, I. T. McGaffey executed a will which, so far as is here material, is as follows:

“It is my will and desire that after the payment of my just debts, funeral expenses and expenses of my last sickness, to give, devise and bequeath unto my children and grandchildren all of my estate of every description, real, personal or mixed, of whatsoever nature, wheresoever situated, and howsoever, acquired, as hereinafter set forth, in fee simple forever.

“It is my will and desire that my estate aforesaid shall be divided into nine (9) equal parts. And it is my will that the nine (9) parts shall pass' to and be divided as follows, to-wit:

“To my son, Charley McGaffey, one part
“To my son, Raymond McGaffey, one part
“To my son, Neil McGaffey, one part
“To my son, Alva McGaffey, one part
“To my son, Eddie McGaffey, one part
“To my son, J. W. McGaffey, one part
“To my son, Howard McGaffey, one part
“To my daughter, Ola McGaffey Up-shaw, one part
“To my two grand-daughters, Johnnie Sue McGaffey and Nancy McGaffey, daughters of my deceased son, I. T. Mc-Gaffey, one part, to share each and share alike, therein.

“It is my further will and desire that my homestead and farm, located about one mile west of Hutchins, Texas, remain intact, and that said homestead and farm be leased to my son, Alva McGaffey for the sum of One Thousand and no/100 Dollars ($1000.00) per year until my youngest grand-daughter shall have attained the age of 21 years and until a division of said farm and homestead shall have been made. In the event any of my heirs under this my last will and testament shall desire to sell his or her share of the homestead and farm after my demise, then it is my will and desire that my son, Alva McGaffey, shall purchase from such heir or heirs, his or her share or interest in the homestead and farm for a sum of money not to exceed Three Thousand and no/100 Dollars, but in no event shall share to or interest in my farm and homestead bequeathed or devised to one of my heirs who may be under the age of 21 years be sold, conveyed or transferred until such heir shall have first attained her 21st birthday. , It is my will and desire in the event the homestead and farm shall remain intact and undivided until my youngest heir shall have attained the age of 21 years; and provided the heirs and devisees under this my will shall be desireous of causing a division or sale of the farm and homestead, that my son Alva McGaffey, shall have the privilege of buying the interest of each devisee for a sum of money not to exceed $3000.00 for each heir’s share and interest in the homestead and farm. In the event of the death and demise of my son, Alva McGaffey, it is my desire that any devise or bequest to him by me be made under this will, shall pass to and vest in his son, my grandson, A. C. McGaffey. It is my further desire that the proceeds derived from said lease money after repairs have been paid, shall be divided in the proportions set forth herein to my children and grandchildren. It is my further will that my granddaughter, Margaret Helen McGaffey, receive an equal share in the rental and income from my estate so long as she i§ attending school, and it is my further will that in the event her father, my son, Howard McGaffey, be deceased at the time of my demise, that his share of my estate shall pass to and vest in the said Margaret Helen McGaffey.

“It is my further will that all taxes and insurance shall be paid out of the share of the rental bequeathed to my children, Niel McGaffey, J. W. McGaffey and Ola Mc-Gaffey Upshaw.

“It is my further will and desire that any indebtedness due or owing by my estate at the time of the settlement of my estate shall be paid out of any share bequeathed to Neil McGaffey^ J. W. Mc-Gaffey and Ola McGaffey Upshaw.

“If any of my heirs or devisees, or anyone else, contest this my last will and testament, it is my will and desire, and I declare, that he or she or they shall receive no part whatever of my estate, and, if such an event happens, I hereby revoke any devise or bequest herein made to such contestant or contestants. It is my further desire that there be no discussion of the division of my estate until at least one year shall have elapsed after my demise.

“I hereby nominate and appoint and constitute my two sons, Alva McGaffey and Raymond McGaffey, executors of this my last will and testament, and direct that either of them may act as executor in case of the death' or refusal to qualify as such executor, and that they be required to make bond to cover the rentals from my estate, and that no other action shall be had in the County Court in relation to the settlement of the estate other than the probating and recording of this will and the return of statutory inventory, appraisement and list of all claims due or owing by me at the time of my death.”

Mr. McGaffey died on September 1st, 1949. Said will was admitted to probate and Alva McGaffey qualified as executor on February 21, 1952. Administration on said estate is pending in the Probate Court of Dallas County. This is an appeal from a judgment ordering partition of said estate upon the application of Dee Brown Walker, which was filed on August 25, 1959. Alva McGaffey answered Walker’s application for partition of the estate by asserting that he had no interest therein. On February 13, 1961, more than 17 months after the filing of Walker’s application, Alva McGaffey, for the first time, asserted an option to purchase Walker’s l/9th interest in the Dallas County homestead for $3,000.00.

On October 5, 1957, Johnnie Sue McGaf-fey, the youngest granddaughter became twenty-one years of age. In February 1951, Howard McGaffey’s wife obtained a judgment against him for $7,200.00, and foreclosed an attachment lien on the Dallas County farm. In April, 1951, Howard’s wife and Mr. Walker, her lawyer, bought Howard’s interest • in the Dallas farm at a sheriff’s sale under that judgment. On February 12, 1953, Howard’s wife conveyed her interest to Mr. Walker.

The trial court granted Mr. Walker’s application to partition and refused to enforce Alva McGaffey’s alleged option to buy Walker’s l/9th interest in the Dallas County farm for $3,000.00. The court held that the provision of said will giving Alva McGaffey an option to purchase the l/9th interest of any devisee in the homestead under the stated circumstances, for $3,-000.00, constituted an unlawful restraint on the right of the devisees of the fee simple title to realty to dispose thereof. It also held that Alva McGaffey had not timely exercised his asserted option to purchase Walker’s interest in the Dallas farm for $3,000.00, and had, therefore, waived any right he may have had to purchase it. The court charged the taxes and insurance and the indebtedness of the estate against the interests of Neil, J. W. and Ola McGaffey, as provided for in the 4th and 5th paragraphs of the will. Alva McGaffey, individually and as executor, Raymond, Neil and J. W. McGaffey and Ola McGaffey, now Upshaw, individually and as next friend for Howard McGaffey, and the two grandchildren have appealed-

Appellants’ points are in substance that the court erred in construing said will so as to award a l/9th share in the homestead in Dallas County to Walker in fee simple, unincumbered by the option of Alva McGaffey to purchase it for $3,000.00; erred in holding there was an unreasonable restriction on the right of alienation; erred in holding that Alva McGaffey failed to exercise said option within a reasonable time and, as to the latter point, that there is no evidence to support that holding and, in the alternative, insufficient evidence, and, further, that said holding is contrary to the overwhelming weight and preponderance of the evidence. Appellants’ last point is that the court erred in construing the will so as to charge all expenses of administration against the interests of Neil, J. W. and Ola McGaffey.

The court held that the attempted restraint on the right of alienation was void. In the first part of the will, the granting clause, the testator devises to his named children and grandchildren, in equal parts, all of his estate “in fee simple forever”. Thereafter, he attempts to place restraints upon the rights of the devisees to dispose of the property so devised to them. He provided that no devisee could sell his share until he became twenty-one years of age. He also provided that if any adult devisee desired to sell before the youngest devisee became twenty-one that Alva had the option to purchase his share for $3,000.00 and, finally, the restraint that is here specifically challenged, that if the homestead remained undivided until the youngest devisee became twenty-one (which happened), and the devisees then desired to sell or divide the homestead that Alva had the option to buy each devisee’s l/9th interest for $3,000.00.

The Texas cases are not in accord as to the power of a testator to devise a fee simple estate and then place a “reasonable” restraint upon alienation of the property so devised. One line of authority holds that a restraint upon alienation of a fee simple title for a limited time, however brief, is inconsistent with and repugnant to the nature of the fee simple estate, because one of its most important characteristics is the power of alienation. Seay v. Cockrell, 102 Tex. 280, 115 S.W. 1160; Dodson v. Dodson, Tex.Civ.App., 299 S.W.2d 775, 776; O’Connor v. Thetford, Tex.Civ.App., 174 S.W. 680, 681, (Writ Ref.) ; Knight v. Chicago Corp., Tex.Civ.App., 183 S.W.2d 666, affirmed 144 Tex. 98, 188 S.W.2d 564. Some writers say this rule is favored by the courts of Texas because, as stated in O’Connor v. Thetford, it is more logical and presents no difficulties such as will be encountered in determining what is a reasonable time. In Frame v. Whitaker, 120 Tex. 53, 36 S.W.2d 149, 151, the Supreme Court of Texas held that where there was a devise of the fee simple title followed by a provision that the beneficiary should not dispose of the property so devised during her lifetime that the restriction was void. In Pritchett v. Badgett, Tex.Civ.App., 257 S.W.2d 776, 777, (Writ Ref.), land was devised to a son with a provision that the son could not sell or incumber it for twenty years, unless he was joined by the executors. Such attempted restraint upon the right of alienation was held to be void. Although there are authorities to the contrary, the stated rule seems to be generally favored in Texas and is the rule in most jurisdictions. In 42 A.L.R.2d 1308, it is said that “a provision or direction against alienation during the minority of a specified person is void by the law of most jurisdictions.” Under that annotation the decision of the Supreme Court of Texas in Bouldin v. Miller, 87 Tex. 359, 28 S.W. 940 is discussed. In that case there was a provision in a deed that the property conveyed should not be sold until the youngest grantee became twenty-one. The court held that the deed having otherwise conveyed the fee simple title an unlimited power of alienation was a necessary incident thereto and, since the restraint was not imposed in the form of a condition but only as a naked restraint and not for the purpose of protecting the grantor’s or some others, interests in the property, the restraint was void. In 42 A.L.R.2d 1297, the rule is stated as follows:

“Apparently, in states other than Indiana and Kentucky, a provision or condition against alienation by a grantee or devisee in fee before his arrival at a specified age, as well as a limitation over in case of such alienation, is void. * * *
“In Laval v. Staffel (1885) 64 Tex. 370, —the opinion states that the authorities are in disagreement regarding the validity of a limited restraint upon alienation of a fee, such as one to continue until the devisee reaches a specified age * *
“By the law of most jurisdictions a mere naked provision to the effect that the grantee or devisee in fee shall not alienate prior to arriving at a specified age, or purporting to withhold the power of alienation until such age is attained, is void.”

Alva’s option to buy is dependent upon the desire of a devisee to sell or divide both when the testator is speaking of the share of “any” devisee and the shares of all devisees. It is apparent that the testator wanted to keep the homestead intact and leased to Alva and that he attempted to interfere with the right of alienation of land which he had previously clearly and expressly devised in fee simple. He was specific when he devised the fee simple title and provided that each of the nine should have equal shares. This was the predominant provision of the entire will. He was more vague and uncertain in his provisions for keeping the farm intact and granting Alva an option to buy the shares of other devisees. The greatest estate will be conferred on a devisee that the terms of a devise permits. A clear, express devise of the fee simple title forever of a l/9th equal part will not be subtracted from by later separate provisions not equally clear. 44 Tex.Jur. 738. See also Heller v. Heller, 114 Tex. 401, 269 S.W. 771; Burney v. Burney, 145 Tex. 311, 197 S.W.2d 334; Gilliam v. Mahon, (Tex.Com.App.), 231 S.W. 712, 713; 14B Tex.Jur. 599.

We think the decision in Mattern v. Herzog, (Sup.Ct.), 367 S.W.2d 312, is not applicable to the facts of this case. In that case, there was no express devise of the fee simple title followed in a later paragraph by a less definite and certain provision subtracting therefrom. There, the provision for an option to purchase was a part of the grant and as definite and clear as the granting provision. The option to purchase was incorporated in the granting sentence. The option to purchase was not there made contingent, as it is here, on the desire of the devisees at some unforeseeable future time and circumstance to partition or sell

Under what appears to be the majority rule in Texas, and which is the majority rule in most jurisdictions, the court correctly held this attempt to restrain alienation was void. We think the court did not err in holding that the attempted restraint on alienation of the homestead farm, title to which had been clearly and expressly devised in fee simple, was void.

The trial court further held that if Alva McGaffey had an option to purchase Walker’s l/9th interest in the homestead for $3,000.00, he waived his right to exercise the option by his long delay. Regardless of the possibilities of sooner exercising the option, such as when Walker first bought Howard’s 1 /9th interest, if Alva McGaffey had an option to purchase Walker’s interest, it could have been exercised when Walker filed an application to partition said property on August 25, 1959. It is undisputed that he made no attempt to exercise the option for more than a year and five months thereafter. In Mattern v. Herzog, Tex., 367 S.W.2d 312, 318, Judge Norvell recognized the general rule that in options “time is of the essence.” In Johnson v. Portwood, 89 Tex. 235, 34 S.W. 596, 598, our Supreme Court said that when a transaction is in the nature of a unilateral contract, “where a party is given an option to acquire a right by doing a certain thing within a specified time,- — it is held that time is essential, and that in order to secure the right he must comply within the specified period. This is settled law.” In Bush v. Merrill, (Tex.Com.App.), 206 S.W. 834, 838, it was held that in every contract in which the time for exercising an option is not fixed the law allows a reasonable time for exercising the option; the time depending upon the facts and circumstances of each case. It also held that what is a reasonable time for performance is ordinarily a question of fact. See also Cheek v. Metzer, 116 Tex. 356, 291 S.W. 860; 10 Tex.Jur. 415; Miller v. Deahl, Tex.Civ.App., 239 S.W. 679; Texas Farm Bureau Cotton Ass’n v. Stovall, 113 Tex. 273, 253 S.W. 1101, 1106. In Grier v. Stewart, Tex.Civ.App., 136 S.W. 1176, it was held that in options to purchase real estate time is of the essence. See also Wilbanks v. Selby, Tex.Civ.App., 227 S. W. 371; Ducc Realty Co. v. Cox, Tex.Civ.App., 356 S.W.2d 807; Investors’ Utility Corp. v. Challacombe, Tex.Civ.App., 39 S.W.2d 175, 178, 13 Tex.Jur.2d 164; Lusher v. First National Bank, Tex.Civ.App., 260 S.W.2d 621, 626, (Ref. N.R.E.). We think the court correctly held that Alva McGaffey waived any right he may have had to enforce said option.

The reason for the rule that in option contracts time is of the essence is well illustrated by the facts of this case. The testator provided for an “equal” distribution of his estate in nine shares. When his father executed the will giving Alva the option to purchase another devisee s l/9th share in the homestead farm for $3,000.00, the farm was worth $100.00 per acre and a devisee’s share slightly less than $3,000.00. Now, the land is worth $750.00 per acre.

Appellants’ seventh point is that the court erred in charging the expenses of administration against the shares of Neil, J. W. and Ola McGaffey. Appellants argue that the words indebtedness of the estate as used in the will did not include attorney’s fees and other expenses of administration. They cite Sinnott v. Gidney, Tex.Civ.App., 311 S.W.2d 951, in which it was held that inheritance taxes, administration expenses and the like are not debts of “the testator,” even though they must be paid out of the estate, and Highland Park Independent School District v. Thomas, Tex.Civ.App., 139 S.W.2d 299, in which it was held that a tax lien against property of an estate is not a “debt.” The will provided that "any indebtedness due or owing by my estate at the time of the settlement of my estate shall be paid out of” the shares devised to Neil, J. W. and Ola McGaffey. We think the charges made against said shares constituted debts of the estate at said time within the meaning of that provision.

All of appellants’ points have been carefully considered and are overruled.

Appellee presents cross-assignments of error that the court erred (1) in refusing to declare a forfeiture of the shares of Ola, J. W. and Neil McGaffey because they contested the will dated July 7, 1949, and (2) in refusing to allow Walker to participate in the partition of the Jefferson County land. The latter contention is asserted on the theory that when Walker had a writ of attachment served in Dallas County and foreclosed that lien and purchased at the sale he also acquired Howard McGaffejds l/9th interest in the Jefferson County land. We think he acquired no interest in the Jefferson County land by serving the attachment in Dallas County and foreclosing that lien. As to the first cross-assignment we hold there was no contest of the will within the meaning of its relevant provision by said parties’ insistence that the last will executed by the testator should be probated. See Roberts v. Chisum, Tex.Civ.App., 238 S.W.2d 822, 825 and Calvery v. Calvery, 122 Tex. 204, 55 S.W.2d 527, 530.

The judgment is affirmed.


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    L. C. JOHNSON, Appellant, v. R. O. COOPER and O. H. Lawler, Individually and as Co-Partners, d/b/a Reliable Roofing Company, Appellees.
    No. 16505.
    Court of Civil Appeals of Texas. Fort Worth.
    May 15, 1964.

      Jacobs & Lipscomb, and John Sieren, Fort Worth, for appellant.
    Ernest May, Fort Worth, for appellees.
   LANGDON, Justice.

This is a suit for damages for the alleged breach of a roofing contract brought by the prime contractor, L. C. Johnson, appellant, against R. O. Cooper and O. H. Lawler, individually and as co-partners, d/b/a Reliable Roofing Company, appellees herein. It appears from appellant’s pleading that he accepted a bid submitted by appellees and was thereafter forced to have the work done by a firm whose bid was $2,272.50 in excess of appellees’ bid because the latter refused to do the work. Appellant sought damages for this amount. Trial was to the court without a jury. A take nothing judgment was entered against appellant and judgment awarded appellees on their cross-action. There is no dispute as to the latter.

The appellant contends the court erred in concluding (1) that there was doubt as to acceptance by appellant of appellees’ work purchase order; (2) that same was not enforceable as a written contract; (3) that there was no legal proof of any damages; and (4) that there was a difference between the two bids in that appellees’ bid provided that appellant was to purchase and deliver insulation to the job at carload prices and the other bid did not contain such requirement.

We affirm.

No findings of fact or conclusions of law were requested or filed by the trial judge. The trial court’s judgment, therefore, implies all necessary fact findings in support' of the judgment. In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto, it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature. Austin v. Cochran, Tex.Com.App., 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Turner v. Keene, Tex.Civ.App., 366 S.W.2d 864.

Thus if the judgment of the trial court can be sustained by considering only that evidence most favorable to it and disregarding entirely that which is opposed to it or contradictory in its nature, such judgment should be affirmed.

The appellees’ pleading is not included in the record before this court. We must therefore presume that the appellees denied the alleged contract and that this contention was upheld by the trial court. “ * * * in the absence of the pleadings it will be presumed in support of the judgment that they authorized the judgment appealed from.” 3 Tex.Jur.2d 661, § 405.

As reflected by his pleadings the appellant sought damages in the sum of $2,-272.50 representing the amount paid for roofing over and above the bid of the appellees which was alleged to be $5,877.50. It was incumbent upon appellant in order to make out a prima facie case to establish the existence of the two contracts in question and to establish the contract price of each to enable the court to determine the money difference, if any before any damages could be awarded under the plaintiff’s pleading. This he failed to do.

The bid of Reliable Roofing Company states, “All workmanship and materials guaranteed highest quality for the sum of: Twenty-seven Dollars per sq.” There were some penciled notations below the signature of the parties which are not explained by the record.

The other bid involved submitted by Burnett was in the sum of $7,500.00. It contained a notation below the signature for an additional $250.00 “if coating labor furnished”.

The record also contained an invoice from Burnett in the amount of $8,150.00. The witness Hansen, agent for appellant was asked if the latter sum was the full amount paid to Burnett by appellant and he answered that he did not remember the exact amount paid but that it was approximately correct. It is presumed that the plaintiff’s damage was based upon the difference between the $8,150.00 reflected by the Burnett invoice and the appellee’s alleged bid of $5,877.50 as the difference between them is $2,272.50.

The difference between the Burnett bid of $7,500.00 and the invoice of |>8,150.00 was not explained in the record nor was the $250.00 notation on the Burnett bid.

The two bids differed in many respects. The Reliable bid contained the phrase, “Customer (appellant) agrees to purchase insulation and deliver same to job site at carload prices.” This phrase was omitted from the Burnett bid. The record reflects-that appellant was unable to purchase and deliver the insulation as promised. It must be presumed that the court believed and found this to be a material condition of' the appellees’ bid.

Mr. Cooper of appellees testified in effect that no agreement was ever reached on the material and that his bid was to-supply metal for patching and not around' the edges of the roof nor did it include corrugated iron to cover places where ventilators were to be removed. He further testified that Hansen, acting for appellant in undertaking to accept appellees’ bid, repudiated the agreement to purchase and deliver the insulation in question at carload prices, which he testified was a material condition of his bid.

The record is silent as to the difference in the cost of insulation in carload and less than carload lots delivered at job site.

The record contains a letter signed by the trial judge dated May 20, 1963, directed to the attorneys. It was filed with the district clerk along with other papers in the cause. It reads in part as follows:

“(1) The work purchase order executed by R. O. Cooper dated March 25, 1960, even if accepted by Don Hansen on behalf of plaintiff, is not enforceable as a contract because there is no way to determine from the written instrument what price was to be paid Cooper for his services. The written instrument merely says that 'All workmanship and materials guaranteed highest quality for the sum of Twenty-seven dollars per square Dollars’. The Court does not know, and there was no evidence to show whether this amount, $27.00 was per square foot or square yard. Nor is there any evidence that the total bid, if it was a bid, submitted by Cooper, amounted to $5877.50.
“(2) There was no legal proof as to the damage sustained by plaintiff, One of his witnesses testified merely that there was a difference between the Reliable Roofing bid and the Burnett Roofing bid of about $2700,00. There is no way the Court could enter a valid judgment for ‘about $2700.00’. * * * (It will be noted in this connection that $2,272.50 was amount of damages •plead.)
“(3) There was a difference also between the bid made by Reliable Roofing and the one made by Burnett Roofing, in that the Reliable Roofing bid provided that Johnson was to purchase insulation and -deliver same to the job site at carload prices. This requirement was not in the Burnett Roofing bid. There was no evidence of the monetary difference between Reliable furnishing the insulation and Johnson furnishing the insulation.”

The appellant contends that the term “square” is one of common knowledge and that the court should have taken judicial notice of its meaning as same was easily ascertainable by reference to a dictionary.

In Milk Products Co. v. Johnson, Tex.Civ.App., 295 S.W. 263, it was held: “The terms used in the contract in stating the contract price may have been thoroughly understood by the trade, but of this fact the court could not take judicial knowledge. The significance of the terms ‘unit’ and ‘93/4’ should have been given by competent evidence. Without this evidence, the court did not have the proper basis for determining the damages allowed.”

In 31 C.J.S. Evidence § 9, p. 827, it is stated, “They do not take judicial notice of facts merely because they may be ascertained by reference to dictionaries, encyclopedias, or other publications, or of facts which the court cannot know without resort to expert testimony or other proof.” The text continues on pages 828, 829, as follows: “notice will not be taken of that which is known, if at all, only by a specially informed class of persons. The test has been said to be: (1) Is the fact one of common, everydayrknowledge in the jurisdiction, which every one of average intelligence and knowledge of things about him can be presumed to know ? (2) Is -it certain and indisputable? If any doubt exists as to whether ■ a matter is a fact of general knowledge, it should be resolved in the negative.”

The significance and the meaning of “Twenty-seven dollars per square”, should have been given by competent evidence. The same applies to facts involving the number of squares, the difference in costs of insulation in carload lots and otherwise. The plaintiff failed to establish these and other matters above rc-ferred to by competent proof or by any proof.

From a review of the record as a whole considering the evidence most favorable and disregarding entirely that which is opposed or contradictory in its nature we are of the opinion that the judgment and the implied findings of fact incident thereto can and should be sustained. Accordingly all of appellant’s points of error are overruled and the judgment of the trial court is affirmed.


author: FANNING, Justice.

text:
    Royle Edward TRUITT et ux., Appellants, v. E. H. WILKINSON et ux., Appellees.
    No. 7525.
    Court of Civil Appeals of Texas. Texarkana.
    May 5, 1964.
    Rehearing Denied May 26, 1964.
    Aubrey Robison, Daingerfield, Carney & Mays, Atlanta, for appellants.
    Joe W. Lovelace, Linden, for appellees.
   FANNING, Justice.

Royle Edward Truitt and wife, Doris Truitt, sued E. H. Wilkinson and wife, Mae Wilkinson, in trespass to try title, for possession of a house and lot in Cass County, Texas. The property in question was purchased by Doris Johnson, then a widow, out of her then separate funds, and prior to her marriage to Royle Edward Truitt. After the marriage Doris and Edward Royle Truitt conveyed their respective properties to a trustee who reconveyed the property to them as the community property of Doris and Edward Royle Truitt.

Doris Wilkinson Johnson Truitt was the daughter of the defendants E. H. Wilkinson and wife, Mae Wilkinson. Mr. Johnson, the husband of Doris, died in California where they were living, and Doris then moved back to Cass County, Texas, where she stayed for a while with her parents at their farm home. She next bought a home near Linden with her separate funds, and by agreement the parents moved into the home to live with her. The parents’ version of the oral agreement and the daughter’s version of the oral agreement are at odds.

It was the contention of defendants in pleading, proof, motion for judgment and their brief that the agreement was in essence that their daughter, prior to her marriage to Mr. Truitt, orally gave her parents a life estate in the house and lot in question, in consideration of her parents moving in the home with her to keep her company and to do some of the household chores, and that they, relying on the agreement, moved into the house with their daughter. They later sold their farm and farmhouse.

The daughter, Doris Truitt, while contending that the oral agreement was not for a life estate but one terminable in essence when she decided to sell the house, (and that she desired to sell the house) also contended that the alleged oral agreement was in violation of the statute of frauds (Art. 3995, Vernon’s Ann.Civ.St.) and the statute of deeds (Art. 1288, V.A.C.S.).

Defendants while relying on their oral agreement for a life estate, also pleaded an alternative count in estoppel in the event the statute of frauds applied and a second alternative count of a parol trust in the event the court held that the statute of frauds applied to the original agreement.

Two special issues were submitted to a jury.

Special Issue No. 1 and the jury’s response thereto were as follows:

“Do you find from a preponderance of the evidence, if any, that Plaintiff Doris Truitt promised the defendants, E. H. Wilkinson and wife, Mae Wilkinson, that the defendants could live in the house in question, so long as either of the defendants lived.
“Answer ‘Yes’ or ‘No’.
“Answer: Yes.”

Special Issue No. 2, which is copied below was not answered by the jury.

“Do you find from a preponderance of the evidence, if any, that the Defendants, E. H. Wilkinson and wife, Mae Wilkinson, sold their farm in Cass County, Texas, relying on the promise, if any, of Plaintiff Doris Truitt that the defendants could live in the house in question, so long as either of the defendants lived.
“Answer ‘Yes’ or ‘No’.
“Answer: -”

Defendants in their written motion for judgment requested the trial court “to enter judgment for the Defendants for a life estate in the premises in dispute * * *

The trial court rendered judgment that plaintiffs Truitt “should have and recover of and from the defendants E. H. Wilkinson and wife, Mae Wilkinson, the full fee simple title to the following described premises:” (Here follows a description of the premises in controversy.) The next paragraph of the trial court’s judgment decrees to the effect that the defendants Wilkin-sons do have and recover of the plaintiffs Truitts, “a life estate, so long as either the said E. H. Wilkinson or wife, Mae Wilkinson, shall live, in and to the above described premises, with full right of possession thereto.”

Appellants by their first point contend to the effect that the trial court should have granted their motion for instructed verdict because the evidence showed conclusively that the property in controversy was owned by plaintiffs, and that any claim of the defendants under the alleged oral agreement was in violation of the statute of frauds and of Art. 1288, V.A. C.S.

Appellees contend, among other things, that the oral agreement constituted an exception to the Statute of Frauds and to Art. 1288, V.A.C.S., and in particular contend that the agreement might have been fully performed within one year due to the fact that it was for the life of defendants, who might have died before one year. In this connection appellees cite and rely upon the case of Betts v. Betts, Tex.Civ.App., 220 S.W. 575, no writ history, which case upheld an oral lease for life with rental of $60.00 per year being payable annually. Appellees also cite other cases on this matter in their brief.

Art. 1288, V.A.C.S., the Statute of deeds or of conveyances, is quoted below, and Art. 3995, V.A.C.S., the statute of frauds, is quoted below.

The conveyancing statute (Art. 1288) prohibits an oral contract for the conveyance of an estate of inheritance or freehold, either legal or equitable. Adams v. Weir & Flagg, Tex.Civ.App., 99 S.W.2d 726; Bear v. Houston & T. C. R. Co., Tex.Civ.App., 265 S.W.2d 246; Cauble v. Worshaw, 96 Tex. 86, 70 S.W. 737 ; 26 Tex.Jur.2d p. 223.

Unquestionably a life estate in lands is an estate of freehold within the statute of deeds. See Bear v. Houston & T. C. Ry. Co., supra, (265 S.W. 246) and Wallis v. Turner, Tex.Civ.App., 95 S.W. 61.

In Wallis v. Turner, supra (95 S.W. 61) where an oral agreement to relinquish a life estate was involved, the statute of frauds was pleaded as a bar to the oral agreement, and it was contended in defense that the statute of frauds was inapplicable and it was further contended in defense to the statute of frauds that the necessary elements of a parol gift, with possession and making of valuable improvements, etc., were involved. We quote in part from the opinion of the court as follows :

"It made no difference whether the life estate of Mrs. Wallis ‘might be for more than a year.’ The gift or relinquishment of the life estate was a gift of lands within the statute of frauds. Such an estate is a freehold within the provisions of article 624, Rev.St.1895, with regard to conveyances. That appellants characterize the life estate as ‘an estate which might be for more than a year,’ while unnecessary, cannot be given the effect of destroying the plea as setting up, so far as it was necessary to do so, the defense of the statute of frauds. * * We must conclude that the verdict and judgment are contrary to the evidence and the law * * *; second, that the evidence fails to show improvements made upon the land by appellees upon the faith of the relinquishment of Mrs. Wallis of her life estate of such a character as to create an equity in appellees and take the case out of the operation of the statute of frauds; * * (Emphasis added)

There was neither pleading nor proof in this cause of the making of valuable and permanent improvements to the property in question by appellees Wilkinsons with the consent of appellants Truitts. Appellees however by their alternative plea contend that if the parol agreement for a life estate was not upheld that a fraud would be worked upon them and that therefore they would be entitled to relief on the theory of estoppel. While the jury did not answer the second issue it is our view that under the undisputed facts in this case there is no such equitable estoppel in this cause as would take it out from the statute of frauds and the statute of conveyancing. In this connection see Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286, wherein it was stated in part as follows:

“But the petitioners-defendant argue that, aside from the circumstance of ‘constructive’ return of the deed, other facts we must assume as true make a case for equitable relief against the statutes on the theory of estoppel against the respondent-plaintiff, or, what is substantially the same thing, the theory that enforcement of the statutes would operate as a fraud on George Cowden and his codefendants. They say that, while the exacting requirements of Hooks v. Bridgewater, supra, [111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216], for avoiding the statute of frauds are not always applied, and that decision is not necessarily controlling here, even those requirements have actually been met, so as to establish an enforceable contract of Bell to convey (reconvey) to Cowden. Those familiar requirements are (a) payment of the consideration; (b) transfer of possession; and (c) making of valuable and permanent improvements by the vendee with consent of the vendor. The argument is that the 1948 mineral lease and subsequent development by the lessee, the defense by the Cowdens of the third party title suit in 1951, payment by them of two years’ taxes thereafter and the corresponding failure of the respondent-plaintiff to assert ownership in connection with these matters were together tantamount to meeting requirements (b) and (c), there being no dispute that the testimony of George Cowden is sufficient to meet requirement (a). The contention, while not unimpressive, is, in our opinion, untenable.
“Hooks v. Bridgewater did, of course, recognize the question before it to be one of equitable estoppel and proceeded on the theory that such an estoppel is generally applicable to prevent the statute being used to effect a fraud. The ‘requirements’ above mentioned are by way of practical— and, to a degree, arbitrary — definition of ‘fraud’ for the particular purpose, including, as before indicated, the element of corroboration of the parol agreement by facts not themselves resting entirely on oral testimony.
“We will assume that the above stated facts are the equivalent of a taking of possession by the petitioners-defendant, and that requirement (b) of Hooks v. Bridgewater is accordingly satisfied. Unless the only way to take possession of a mineral interest is for the would-be possessor himself to drill, this might well be the case; and the fact that the change of possession occurred over ten years after the alleged agreement would not necessarily make it otherwise.
“But requirement (c) is another matter. If we assume it may be satis fied by some 'equivalent1 of valuable ■and permanent improvements, we must yet look to the underlying purpose of .the requirement in order to evaluate the particular 'equivalent suggested. The significance of the requirement is in part that of a ‘corroborative fact’, but also, and more importantly, that of a serious change of position in reliance upon the oral contract over and above the payment of the consideration. In the latter connection, there is no sufficient 'fraud1 involved unless the parol vendee will suffer an additional ■and substantial out-of-pocket loss .should the vendor be allowed to avoid the contract by invoking the statute. This is apparent from our positive statements in Hooks v. Bridgewater and other decisions that the 'fraud’ in question is something quite different from a mere wrong upon the party against whom the statute is invoked. See Robertson v. Melton, 131 Tex. 325, 332, 115 S.W.2d 624, 628, 118 A.L.R. 1505. Correspondingly we held in Francis v. Thomas, supra, [129 Tex. 579, 106 S.W.2d 257], that where the change of position of the vendee in reliance on the contract involved a profit to him, although not as great a one as he would have enjoyed had the vendor carried out his contract, equity will not circumvent the statute. The mere failure to get the benefit of a .good bargain is not enough. Robertson v. Melton, supra.
“While, as before stated we regard the decision as distinguishable from the instant case in that there was an actual return by Hinman to Wagoner of the Wagoner-to Hinman deed, it still appears to be at odds with the basic doctrine of Hooks v. Bridgewater in that an equitable title was held to pass by the parol reconveyance without even a transfer of possession, still less the making of improvements by the revendee or any conspicuous equivalent of the latter. Obviously, however, Cooper v. Hinman [Tex.Com.App., 235 S.W. 564] is not to be taken as overruling the Hooks v. Bridgewater doctrine, and, since it coincides with the latter to the extent that the actual return of the deed affords substantial corroboration of the agreement of re-conveyance, we conclude that it may properly stand as an exception. On the other hand, we are not disposed tq extend such an exception to cover the instant case. To do so would confuse, or further confuse, an otherwise long recognized and generally desirable rule.” (Emphasis added)

The cause was pleaded and tried on the theory that appellees had an oral agreement for a life estate and their judgment was for a life estate. This case is distinguishable from cases involving rental or lease contracts cited by appellees.

We also hold that under the record in this cause there was no valid trust which would authorize a judgment for appellees for a life estate in the premises in question.

It is our view that plaintiffs-appellants’ motion for instructed verdict should have been granted.

The judgment of the trial court is reversed and judgment is here rendered for appellants for the full fee simple title to the land and premises sued for, free and clear of the life estate asserted and claimed by appellees and free and clear of all other claims asserted by appellees.

Reversed and rendered.

      . Art. 1288, V.A.C.S. “No estate of inheritance or freehold, or for a term of more than one year, in lands and tenements, shall be conveyed from one to another, unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, or by his agent thereunto authorized by writing.”

      . Art. .3995, V.A.C.S. “No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized :
      “1. To charge any executor or administrator upon any promise to answer any debt or damage due from his testator or intestate, out of his own estate; or,
      “2. To charge any person upon a prom-iso to answer for the debt, default or miscarriage of another; or,
      “3. To charge any person upon any agreement made upon consideration of marriage; or,
      “4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year; or,
      "5. Upon any agreement which is not to be performed within the space of one year from the making thereof. Acts 1S40, p. 28; P.D. 3875; G.L. vol. 2, p. 202.”


author: McDONALD, Chief Justice.

text:
    TEX-TUBE, INC., and the National Supply Company, Appellants, v. ROCKWALL CORPORATION, Appellee.
    No. 4224.
    Court of Civil Appeals of Texas. Waco.
    May 14, 1964.
    Culton, Morgan, Britian & White, James C. Sanders, Underwood, Wilson, Sutton, Heare & Berry, Jerome W. Johnson, Amarillo, for appellants.
    McCarthy, Carnahan, Fields & Haynes, Amarillo, for appellee.
   McDONALD, Chief Justice.

This is a products liability case. Plaintiff Rockwall instituted this suit against defendant National, alleging that plaintiff purchased from defendant National a quantity of inch thin wall seamless pipe, to construct an underground pipeline crudcoil gathering system; that defendant National undertook to design and advise plaintiff in the construction of such system, and expressly and impliedly warranted that the pipe was free from latent and inherent defects that would subsequently impair its usefulness for the purpose sold; that these expressed and implied warranties induced plaintiff to purchase the pipe; that the pipe thereafter ruptured where it had not been welded properly, causing plaintiff damages, for loss of oil; repair and cleanup costs; and loss of profits.

Defendant National impleaded Tex-Tube, Inc., the manufacturer of the pipe, as a third party defendant, asking for judgment over against Tex-Tube for any judgment plaintiff might recover against National.

Trial was to a jury which found that the rupture in the pipe was caused by a defective weld; that express and implied warranties existed at the time the purchase was made; and that plaintiff was damaged in the sum of $3325.27. The jury further found (Issue 10) that defendant National delivered to plaintiff a “high-low pressure switch” to be used in the oil gathering system; that such switch was not used by plaintiff; that the failure to use it was negligence and a proximate cause of plaintiff’s damages.

Plaintiff and defendants both moved for judgment. The trial court granted plaintiff’s motion for judgment (disregarding Issue 10), and entered judgment for plaintiff for $3325.27 against defendant National; and entered judgment for National over against Tex-Tube on the 3rd party action.

Defendants National and Tex-Tube appeal, contending (among other things) that the trial court erred in disregarding the jury’s answer to Issue 10, and that such answer precludes rendition of judgment for plaintiff.

The record reflects that defendant National warranted the pipe to carry a pressure of 800 pounds per square inch, and that the warranty was untrue, because the pipe burst at a time when the pressure was 500 pounds per square inch; and that the pipe burst because of a defective weld in the pipe. The record reflects that defendant National designed plaintiff’s oil gathering pipeline system, and sold to plaintiff the pipe, pumps, motor and other material and equipment; that National furnished a “high-low pressure actuated shut off control,” to plaintiff along with the motor and pump; that such device would automatically shut down the pump and the entire operation whenever the pressure went below working pressure, as when a leak should occur. The jury found that the “high-low pressure shut off control” was not used by the plaintiff; that such was negligence, and a proximate cause of plaintiff’s damages.

The record further reflects that plaintiff lost some 2504 barrels of oil; that the pump puts some 160 barrels per hour through the line; that the gathering system will contain about 592 barrels at all times. If plaintiff had used the “high-low shut off control switch,” the pump would have shut off when the pipe ruptured (due to the pressure drop), and the loss of oil would have been confined to the oil in the pipeline.

From the record we think the amount of oil which would have been lost had the pump shut down after the pipe ruptured is ascertainable.

There is no question from the jury findings but that the defective weld in breach of defendant National’s warranty, caused the pipe to rupture, and that this resulted in loss of the oil from the line. Nevertheless, had the “high-low switch” been in operation, the oil loss would have been considerably less.

The relationship between negligence on the part of the buyer, and breach of warranty by the supplier, lies in the twilight zone of the “products liability” field of litigation. American Law of Products Liability by Hursh takes note of the confused situation at p. 415:

“The question of whether contributory negligence is a defense available to one charged with liability on the ground of breach of warranty for product caused injury is a most interesting one. * * * The rulings of the courts on this question of contributory negligence are less than entirely harmonious. * * * The weight of authority appears to be on the side of the view that negligence on the part of the user of a product is no defense in a breach of warranty action against the manufacturer or seller. * * *
“Note that something closely akin to the idea of contributory negligence is embodied in Section 336 of the Restatement of Contracts, which states that damages are not recoverable for harm that the plaintiff should have foreseen and could have avoided by reasonable effort without undue risk, expense, or humiliation.”

In the instant case, the record reflects that leaks in oil pipe line gathering systems are not uncommon, and the jury found that the plaintiff’s not using the “high-low switch cutoff”, was negligence and a proximate cause of plaintiff’s damage. The leak would have occurred whether plaintiff had used the cutoff device or not, but plaintiff’s damages would have been considerably less had it used the device.

Plaintiff was negligent in not using the “cutoff switch” device, which would have, if used, reduced the damages.

We think plaintiff should not be permitted to recover for harm or damages that plaintiff itself could have foreseen, and could have avoided by reasonable effort, in the use of the “cutoff switch device”.

We think the trial court erred in disregarding the jury’s answer to Issue 10, and that the answer to such issue precludes rendition of judgment for plaintiff, to the extent that plaintiff’s own negligence proximately caused its damage. (All of defendants’ other contentions are overruled).

The judgment is reversed and remanded for further proceedings not inconsistent herewith.


author: WILSON, Justice.

text:
    J. W. HOOKER, d/b/a West Texas Coffee & Equipment Company, Appellant, v. Wayne KIRK, d/b/a Wayne Kirk Plumbing & Heating Company, Appellee.
    No. 4226.
    Court of Civil Appeals of Texas. Waco.
    May 14, 1964.
    Jackson & Jackson, Abilene, for appellant.
    William J. Gillespie, Lubbock, for appel-lee.
   WILSON, Justice.

Appellee’s action was upon a sworn account for merchandise furnished to appellant, supported by an affidavit as prescribed by Rule 185, Texas Rules of Civil Procedure. Appellant did not file a written denial under oath stating the claim was not just and true as required by that Rule. His pleading, filed six days before trial, was a general denial, and a pleading in the nature of a third-party action alleging the merchandise included in the account “should be charged back against the third party defendant,” and stating that appellant joined “the third party defendant for any and all sums adjudged against this defendant.” The third-party action appears to have been abandoned.

Attached to appellant’s answer was an affidavit by his wife reciting she had read the answer, and the contents thereof were true and correct “to the best of her knowledge and belief.” The court sustained ap-pellee’s motion for judgment on the pleadings, and rendered judgment against appellant for the amount stated in the sworn account.

Appellant insists the court erred in refusing to allow him to file a trial amendment. The statement of facts reflects that appellant dictated to the court reporter a proposed “trial amendment,” which would not have alleged, as required by Rule 185 of Rule 93 (k), that the account was not just and true in whole or in part. The dictated pleading would have been an answer only to appellee’s alternative counts for breach of contract and assumpsit. There is nothing in the record to show request for, or order denying the filing of this pleading. When it appeared the trial court was to hold the verification of the first amended original answer was insufficient, appellant argued that the verification was sufficient, stated it “came out of a form book,” and asked for an opportunity to brief the question. “If it is not in line we would like to file a trial amendment on it.” The court stated, “if you have something you want to give me right now, I’ll be glad to look at it.”

Appellant further says the court should not have granted judgment on the pleadings because appellee failed to point out the defect in the form of the affidavit by special exception. If the affidavit had been on personal knowledge of the affiant, rather than to “the best of her knowledge and belief,” appellant, nevertheless, did not file or tender a pleading which could constitute a denial that the claim was not just and true, or that any item or particular thereof was unjust as required by Rule 185. No exception to this failure was necessary. Yelton v. Bird Lime & Cement Co., Tex.Civ.App., 161 S.W.2d 353, 355, writ ref. w. m., and cases cited; Glasco v. Frazer, Tex.Civ.App., 225 S.W.2d 633, 635, writ dis.; Dyche v. Simmons, Tex.Civ.App., 264 S.W.2d 208, 215, writ ref. n. r. e. If any amendment now suggested by appellant had been filed, appellee’s claim supported by the statutory affidavit would have been unchallenged, and the court would have been authorized, notwithstanding, to render judgment on the pleadings. Guay v. Schneider, Bernet & Hickman, Tex.Civ.App., 341 S.W.2d 461, 462, writ ref. n. r. e., 161 Tex. 560, 344 S.W.2d 429, 430. Affirmed.


text:
    RIO VISTA INDEPENDENT SCHOOL DISTRICT, Appellant, v. GRANDVIEW INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 4235.
    Court of Civil Appeals of Texas. Waco.
    May 14, 1964.
    Rehearing Denied June 4, 1964.

      Walker, Baker & Altaras, Cleburne, for appellant.
    R. A. Kilpatrick, Cleburne, J. C. Hinsley, Austin, for áppellees.
   WILSON, Justice.

The appeal is from a judgment notwithstanding a jury verdict. Appellant district sued to vacate an order of the Johnson County Board of School Trustees transferring territory from appellant district to ap-pellee district under Art. 2742Í, Sec. 1, Vernon’s Ann.Tex.St. Appellant contends it was entitled to judgment on jury findings, and because of failure of the county board to give notice of hearing. We affirm.

Parker Independent School District, situated between appellant and appellee districts, neared the end of its usefulness. It was consolidated with appellant district by elections. Thereafter, in March, 1963, the Johnson County board considered petitions and entered an order detaching a portion of the former Parker district territory from appellant district and attaching it to appel-lee district. This suit promptly ensued. In July, 1963, while the suit was pending, the board entered another order, similar to the March order in all material respects. It was based on another petition purporting, as was the first, to be that of a majority of the qualified voters in the detached area.

We consider first the contention that both March and July orders were void for failure of the county board to give written notice to appellant trustees of the hearing on the petitions. All of the trustees of Rio Vista Independent School District were present at the hearing leading to the March order, except one who testified he was inactive. All trustees present had actual notice of the hearing. Failure of the county board to give formal notice under these circumstances was not a basis for vacating that order.

As to the July order, as well as the first, the territory in question was detached and annexed under the provisions of Section 1 of Art. 2742f — not Section 1-a upon which appellant apparently relies. The latter section “only applies to the creation of new districts,” and not to existing districts. County School Trustees of Orange County v. District Trustees etc., 137 Tex. 125, 153 S.W.2d 434, 437. Under Section 1, relating to existing districts, it is held notice of hearing is not required to be given by the county board. Banquete Independent School Dist. v. Agua Dulce Independent School Dist., Tex.Civ.App., 241 S.W.2d 192, 193, writ refused; Prosper Ind. School Dist. v. County School Trustees, Tex.Com.App., 58 S.W.2d 5, 6; State ex rel. Blooming Grove Ind. School Dist. v. County Board of School Trustees of Navarro County, Tex.Civ.App., 334 S.W.2d 588, 590, writ ref. n. r. e. See State ex rel. Beckville Ind. School Dist. v. Tatum Ind. School Dist., Tex.Civ.App., 283 S.W.2d 802, 807, syl. 5, writ ref. n. r. e.

Appellant district argues it was entitled to judgment on jury findings (a) that the petition upon which the March order was passed did not contain a majority of the qualified voters residing in the detached area, and (b) that the county board’s finding to the contrary “was the result of fraud or bad faith” on the part of that board. Art. 2742f, Section 1 provides the petition must be signed by a majority of the qualified voters residing in the territory to be detached. The undisputed evidence establishes that a majority of such voters did sign the petitions on which both the March and July orders were based. The only evidence is that there were 25 or 29 such voters residing in the territory to be detached. The petitions were signed by at least 15 of these. A “bare majority” is sufficient. Crabb v. Celeste Ind. School Dist., 105 Tex. 194, 146 S.W. 528, 529, 9 L.R.A.,N.S., 601. Appellant does not point to any evidence that the July petition was not signed by a majority of the qualified resident voters, and we find none. There is no evidence of fraud or bad faith on the part of the county board in making the finding. The board’s determination is conclusive in the absence of fraud or bad faith. School Board of the City of Marshall v. State etc., 162 Tex. 9, 343 S.W.2d 247, 249.

The jury further found that the metes and bounds description of the detached area accompanying the petitions “was so vague and inaccurate that it was not possible for the County Board of School Trustees to determine with accuracy the territory sought to be detached.” It also answered affirmatively an inquiry as to whether the board’s finding that the description was definite and accurate was the result of the board’s fraud or bad faith. Appellant insists it was error to render judgment non obstante veredicto in the face of these findings. We overrule the point for these reasons: (1) The question of whether the description was legally sufficient was a question of law not within the province of the jury. Haines v. McLean, 154 Tex. 272, 276 S.W.2d 777, 781; Haley v. Murray, Tex.Civ.App., 177 S.W.2d 333, 338, writ ref. w. m.; Walker v. Maynard, Tex.Civ.App., 31 S.W.2d 168, 170. (2) The board made no such finding as was inquired about. (3) The evidence raises no issue of fraud or bad faith on the part of the board relating to the field notes. (4) The field notes are not, on their face, so vague or inaccurate as to make it impossible to accurately ascertain the territory to be detached. In actuality they clearly furnish sufficient data, including calls for survey lines and corners, creeks, public roads and state highways, and calls for bearing and distance which, with field notes of specifically named tracts identified in the description, establish that the “metes and bounds description” of the area to be detached is adequate. The only evidence we find, or on which appellant relies pertaining to this issue is that of the county surveyor that he could not definitely locate certain points called for in the field notes on a map exhibited to him. For example, he could not trace “on the map” the call: “Thence S. 60 W. 312.2 vrs. to B. F. Stout’s southwest corner,” or “thence N. 30 W. along Stout’s west line to the S. E. corner of E. H. Thacker’s 52.3 acre tract.” He testified, however, that he did not thereby mean he could not locate the land “on the ground”; that he had made no effort to trace the field notes, and he could, with research, follow them on the ground. Since there appears in the field notes at least “enough to enable one by pursuing an inquiry based upon the information contained” therein “to identify the particular property to the exclusion of others, the description will be held sufficient.” Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380, 383. If enough appears in the description to enable one “familiar with the locality can identify the premises with reasonable certainty, it will be sufficient.” Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 249.

Finally, appellant relies on jury findings to the effect that the petitions on which the March order was adopted “had been changed, altered or interlined or additions and omissions made thereon since the same was signed”; and that the alterations were “falsely or fraudulently made” so that the petitions as submitted to the county trustees “did not accurately reflect the wishes and desires” of the signers. These findings do not make the court’s action erreoneous. Among the reasons are the following: (1) The evidence does not raise an issue that any material alteration was made. Appellant urges that numerals were inserted following petitioners’ names after signature. It was shown that these numbers referred to acreage owned by the various signers. (2) One signer struck out his signature before the petition was submitted. He testified that when he signed “it had no writing like this whatever on it.” His reference was to “ink marks” which consisted of asterisks designating qualified voters and the inserted words, “qualified voters and property owners.” The changes shown were not material. (3) There is no evidence to show the trustees themselves made, directed or authorized any change in the petitions, or that any “false or fraudulent” conduct was attributable to them in that respect.

Appellant’s points are overruled. The judgment is affirmed.


author: BARROW, Justice.

text:
    Jerry Al BROWN et al., Appellants, v. ASGROW SEED COMPANY OF TEXAS, Appellee.
    No. 14254.
    Court of Civil Appeals of Texas. San Antonio.
    April 1, 1964.
    Rehearing Denied June 3, 1964.
    Groce, Hebdon, Fahey & Smith, Charles L. Smith, San Antonio, for appellants.
    James V. Graves, San Antonio, for ap-pellee.
   BARROW, Justice.

This suit was filed by appellants, Jerry Al Brown and his father, Joe Al Brown, d/b/a Brown & Brown, to recover damages from Asgrow Seed Company of Texas for loss of a watermelon crop because fertilizer produced by Bactex Fertilizer, Inc., and sold to appellants by appellee did not contain the specified ingredients. Asgrow cross-acted for judgment on a note given as payment for seed, fertilizer and crop-raising equipment sold appellants. The trial court granted Asgrow judgment non obstante veredicto and entered judgment that appellants take nothing on their claim for damages, and that appellee recover judgment on the note for principal, interest and attorney’s fees.

The primary question presented by this appeal is whether the seller, who was neither the manufacturer nor dealer, impliedly warranted that the product sold contained the ordered ingredients. Under the record in this case, there was no implied warranty and the trial court properly rendered judgment for appellee.

Asgrow is a producer and wholesale supplier of seeds, which it sells under the Asgrow label. It also sells items not produced by it which are allied to its seed business, such as jiffy pots, plant protectors and fertilizer. It is an authorized dealer for Armour Brand fertilizer. Jerry Brown is a graduate of Texas A. & M. College, with a major in horticulture, and in January, 1962, was Assistant County Agent of Bexar County. He testified as an expert witness on the use of fertilizer. Jerry and his father own a farm near Grapeland in Houston County and desired to raise a watermelon crop on this farm in 1962. Jerry Brown, in his capacity as Assistant County Agent, had met Walter Moss, sales manager for Asgrow, in the fall of 1961.

In January, 1962, Jerry Brown went to Asgrow’s office in San Antonio to discuss a deal with Walter Moss, whereby Asgrow would sell Brown the seed, fertilizer and crop equipment necessary to raise watermelons and Brown would give a note in payment of same, payable in June, 1962. Fertilizer is produced under State regulations whereby all brands are required to contain a designated amount of plant food. The remainder of the formula is called “filler” and each producer selects his own type of filler, and the price of the product varies somewhat, depending on what is used as “filler.” Brown desired 7 tons of 10-20-20 fertilizer for his plum trees, and 4 tons of 6-24 — 24 fertilizer for the watermelons. These are standard fertilizer formulas, calling for 10% nitrogen, 20% phosphate, 20% potash and 50% filler; and 6% nitrogen, 24% phosphate, 24% potash and 50% filler.

Moss quoted Brown prices on Armour Brand fertilizer and showed him a price list on Mathieson Brand fertilizer, which prices were comparable to Armour. Brown advised Moss that he wanted a cheaper price and Moss stated that they might get it from Bactex. Bactex Fertilizer, Inc., of San Antonio was a producer of fertilizer under Bactex and Satex Brands. Moss telephoned the Bactex Company and, in the presence of Brown, obtained prices which were about $10.00 a ton less than the Armour Brand. Brown admitted there was no express warranty, but urges an implied warranty.

Brown testified: “I had never heard of Bactex before that meeting there with Mr. Moss. And after he got the prices, he said, ‘Well, now,’ he says, ‘Bactex had a little trouble last year with the State Board, the Feed and Fertilization Board, but’ says, ‘recently they have been all right; they haven’t had any trouble.’ So I said, ‘Well,, what do you think?’ ‘Well, gosh, I don’t know,’ he said, T guess they will be all right.’ And I thought the same thing. And I do recall that I specifically said, ‘Well, isn’t there a fertilization law in effect that would keep everything right?’ And he said there was. And I said, Well, what do you — do you feel like it will be all right ? I mean I am buying everything from you/ and he agreed. So that’s where we got it.” Brown later testified, “That he (Moss) felt of course he couldn’t be sure and neither could anyone else, but he felt this was the case (that it would be all right).”

After the Bactex conversation, Jerry Brown told Moss he wanted to discuss the deal with his father and therefore did not order anything at that time. A few days later he contacted Moss and specifically ordered the Bactex fertilizer. He knew that the fertilizer would be delivered direct to his farm from the Bactex plant and would not be seen by Asgrow. Asgrow admitted it was paid a commission on the sale by Bactex.

The watermelon crop was a complete failure and there was evidence that a subsequent analysis of samples from each of these two types of Bactex fertilizer showed that they contained only a small fraction of the plant foods called for in the formulas.

There were twenty-five issues submitted to the jury but only six are pertinent to this appeal and are set out substantially in footnote l. The jury found in other issues that appellants would in reasonable probability have netted the sum of $7,100.00 if the proper ingredients had been in the fertilizer. The remaining issues relate to contributory negligence findings found favorably to appellants. The trial court disregarded all answers except that to No. 6, which it found to have been undisputed, and further found that a directed verdict should have been granted appellee.

It is well settled that in order to establish an implied warranty by the seller that the article sold is reasonably suitable for the purpose for which buyer purchases it, there must be a justifiable reliance by the buyer on the seller’s representation. McMorries v. Clardy, Tex.Civ.App., 232 S.W.2d 167; Bedner v. Dunigan Tool & Supply Co., 142 Tex. 663, 180 S.W.2d 919; Adams v. Bailey Transportation Co., Inc., Tex.Civ.App., 334 S.W.2d 591; 50 Tex.Jur., § 154; 77 C.J.S. Sales § 325(b); Williston on Sales, §§ 227, 233a, 234.

Appellants failed to secure a finding on this essential element of their case. The jury found in the only question bearing upon the issue of reliance, that at the time he executed the note, Jerry Brown knew, or by the exercise of ordinary care should have known, as much about the quality and usability of fertilizer delivered to him by Bactex as did Moss. It is significant that Brown was qualified by education, experience and vocation to formulate his own opinion concerning the reliability of the various brands of fertilizer. Cf. Ruberoid Co., Inc. v. Briscoe, 5 Cir., 293 F.2d 712. He specifically ordered the Bactex brand with knowledge of all facts and from his independent decision after full opportunity to investigate. See Williston on Sales, § 236a. Brown knew that Asgrow’s only connection with the fertilizer was to order the specified formulas from Bactex.

The statement of Moss concerning the advisability of purchasing Bactex Brand fertilizer amounted to no more than an opinion. In United States Pipe & Foundry Co. v. City of Waco, 130 Tex. 126, 108 S.W.2d 432, the Supreme Court quoted with approval the following rule from 55 C.J. 691: “ ‘The decisive test of whether there is a warranty is whether the seller assumes to assert a fact of which the buyer is ignorant, or whether he merely declares his belief with reference to a matter on which he has no special knowledge and on which the buyer may be expected also to have an opinion, and to exercise his judgment; the former situation constituting a warranty while the latter does not.’ ” See also, 77 C.J.S. Sales § 310, Bell v. Bradshaw, Tex.Civ.App., 342 S.W.2d 185; Welch Veterinary Supply Co. v. Martin, Tex.Civ.App., 313 S.W.2d 111.

There is no merit in appellants’ proposition that appellee should not recover on its cross-action because there was a failure of conjideration for the note. It is well settled that a party aggrieved by a fraudulent transaction has alternate remedies, and may either rescind the sales contract so as to escape paying the consideration due, or affirm the transaction and recover his damages. Minneapolis-Moline Company v. Purser, Tex.Civ.App., 361 S.W.2d 239; Talley v. Nalley, Tex.Civ.App., 277 S.W.2d 739; O’Con v. Hightower, Tex.Civ.App., 268 S.W.2d 321, writ ref. Here appellants elected to affirm the contract and sue for breach of warranty This cause of action failed, and appellants can not now avoid payment of the note given for the fertilizer specifically ordered by Brown. Dutch Mill Gardens v. Grullemans & Sons, Tex.Civ.App., 238 S.W.2d 232, writ ref.; 78 C.J.S. Sales § 443 p. 66.

The judgment of the trial court is affirmed.

      . The issues pertinent to this appeal are substantially set forth as follows:
      No. 1. That the four tons of Satex Lawn and Garden Food 6-24-24 delivered to Brown & Brown by Bactex Fertilizer, Inc., failed to contain the percentage of ingredients as ordered by Jerry A1 Brown.
      Nos. 2 and 4. Such failure was a proximate cause of the failure of the watermelon crop on the 18.5 and 8.7 acre tracts.
      No. 6. That at the time of execution of the note, Jerry A1 Brown knew, or by the exercise of ordinary care should have known, as much about the quality and usability of the fertilizer delivered to him by Baetox Fertilizer, Inc., as did Walter Moss.
      No. 7. That the information Jerry A1 Brown had as to the difficulties Bactex Fertilizer, Inc., had with the State Fertilizer Board the previous year regarding the reliability of its products was not sufficient to put him on notice to make an investigation before ordering Bactex and Satex fertilizer.
      No. 23. That the seven tons of Bactex fertilizer, 10-20-20, delivered to Brown & Brown by Bactex Fertilizer, Inc., failed to contain the percentage of ingredients as ordered by Jerry A1 Brown.


text:
    MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant, v. Robert Lee FRANKS, Appellee.
    No. 3873.
    Court of Civil Appeals of Texas. Eastland.
    May 8, 1964.
    Rehearing Denied May 29, 1964.

      Elliott & Nall, Ralph Elliott Sherman, William A. Thie, Denison, for appellant.
    Helm, Jones & Pletcher, George E. Pletcher, Houston, Slagle & Kennedy, Robert C. Slagle, Jr., Sherman, for appellee.
   GRISSOM, Chief Justice.

Robert Lee Franks sued Missouri-Kansas-Texas Railroad Company for damages sustained in the derailment of a railroad car. Judgment was rendered for Franks and the defendant has appealed.

Franks’ allegation of injury was merely that he suffered "serious and probably permanent bodily injuries.” This allegation was excepted to, among other things, because it did not apprise the defendant of the nature of the injury claimed. Appellee’s allegation of negligence was simply that his injury “resulted from the negligence and carelessness of the defendant.” That allegation was excepted to because it was indefinite, a conclusion and that it did not apprise the defendant of what it would be called upon to meet in its defense. Said exceptions were overruled. The court erred in overruling them. Although the exceptions were not presented until the day the case was set for trial by a jury and the court might possibly have been justified in then refusing to consider them, it did consider them and overruled them.

The only issue of negligence submitted, the answer to which is essential to support the judgment, was whether the defendant was negligent in operating its train at the speed shown. It was submitted over the objection that there was no pleading to support it. It was not pleaded and the court erred in submitting it over the objection made.

Appellee says that reversible error is not shown; that to obtain a reversal appellant has the burden of showing not only that an error was committed but, also, that it probably caused the rendition of an improper judgment. We agree with such statements of the law. But, we cannot agree with appellee’s contention that we should presume that the issue of speed was tried by consent. If appellant had filed a statement of facts, which it did not, and it showed that evidence of speed was introduced without objection, we still could not hold that the issue was tried by consent. Harkey v. Texas Employers’ Ins. Ass’n, 146 Tex. 504, 208 S.W.2d 919.

Decisions of our Supreme Court compel the conclusion that said issue was not tried by consent and that its submission over the proper objection that it was not pleaded constituted reversible error. That question was decided in Texas Employers’ Insurance Association v. Harkey, Tex.Civ.App., 208 S.W.2d 915, 918. The Court of Civil Appeals specifically held that submission of an issue which is an essential basis for the judgment and which was not pleaded, over the objection that it was not pleaded, constitutes reversible error. In that case, Harkey v. Texas Employers’ Insurance Association, 146 Tex. 504, 208 S.W.2d 919, the Supreme Court held that although appellant did not object to the testimony relative to such an issue but did object to its submission because it was not pleaded it could not be held that the issue was tried by consent. In that case the defendant offered no objection to testimony on such an essential issue. But, it did object to its submission because it was not pleaded. The Supreme Court held that the issue could not be nresumed to have been tried by consent and that submission of such unpleaded essential issue over proper objection constituted reversible error. That holding was substantially reiterated by our Supreme Court in Matthews v. General Accident Fire & Life Assurance Corporation, Ltd., 161 Tex. 622, 343 S.W.2d 251, 255. Under said decisions the submission of said issue constituted reversible error.

Appellant’s fourth point asserts error in the manner of submission of the issue of proximate cause. We do not approve the manner in which it was submitted. However, under the decisions in Page v. St. Louis Southwestern Railway Company, 312 F.2d 84, Rogers v. Missouri Pacific Ry. Company, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed. 2d 493, and Missouri Pacific Railway Company v. Sims, 350 S.W.2d 405, (Ref. N.R. E.), we think such submission did not alone constitute reversible error

The judgment is reversed and the cause is remanded.


text:
    TEXAS HIGHWAY DEPARTMENT, Appellant, v. Eldridge JARRELL, Appellee.
    No. 7555.
    Court of Civil Appeals of Texas. Texarkana.
    May 5, 1964.
    Rehearing Denied May 26, 1964.
    Malcolm L. Quick, Austin, for appellant.
    Flanary & Bailey, Paris, for appellee.
   FANNING, Justice.

This is a venue case. Plaintiff-appellee Jarrell in the District Court of Delta County, Texas, sued the Texas Highway Department, seeking to set aside a compromise settlement approved by the Industrial Accident Board in a workmen’s compensation matter on the ground of fraud. Prior to the filing of the suit the Legislature of Texas had granted permission to sue the State of Texas and the Texas Highway Department. Senate Concurrent Resolution No. 53, Acts, 58th Legislature, Regular Session, 1963, p. 1717. This resolution did not specify any particular county as the county of venue for the suit.

Defendant-appellant Texas Highway Department filed a plea of privilege and set forth therein that said department was a duly constituted agency of the State of Texas, and maintained its principal place of business at Austin, Travis County, Texas, and that the proper venue against the Texas Highway Department was in Austin, Texas.

Plaintiff-appellee’s controverting affidavit, among other things, alleged to the effect that the Texas Highway Department was not a resident of any particular county and that the State is domiciled in no particular county and has no rights under the general venue statute.

The trial court overruled the plea and the Texas Highway Department has appealed.

No fraud was proven and appellee does not rely upon fraud to sustain venue in Delta County, Texas.

Cases cited and relied upon by appellee to support his view that the State is domiciled in no particular county and has no rights under the general venue statute, are as follows: Martin v. State, Tex.Civ.App., 75 S.W.2d 950, n. w. h.; State v. Isbell, 127 Tex. 399, 94 S.W.2d 423, opinion adopted by Supreme Court; Duval County Ranch Company v. Texas Company, et al., Tex.Civ.App., 301 S.W.2d 247, n. w. h.

Cases cited and relied upon by appellant to support its view that the proper venue against the Texas Highway Department is in Austin, Travis County, Texas, are as follows: Denison v. State, Tex.Civ.App., 61 S.W.2d 1017, error refused in 122 Tex. 459, 61 S.W.2d 1022; Harris County Tax Assessor-Collector v. Reed, Tex.Civ.App., 210 S.W.2d 852, n. w. h.; University of Texas v. Booker, Tex.Civ.App., 282 S.W.2d 740, n. w. h.; City of San Antonio v. United Gas Pipe Line Co., Tex.Civ.App., 354 S.W.2d 217, n. w. h.; Rainbo Baking Company of San Antonio v. Aiken et al., Tex.Civ.App., 362 S.W.2d 660, n. w. h.; Fitts v. Calvert, State Comptroller et al., Tex.Civ.App., 374 S.W.2d 274, wr. dism., w. o. j.

Shortly after this cause was argued the recent case of Fitts v. Calvert, State Comptroller et al., Tex.Civ.App., 374 S.W.2d 274, was brought to our attention. The Supreme Court of Texas has recently dismissed an application for writ of error in this cause with the notation, w. o. j. We quote in part from Fitts v. Calvert, State Comptroller et al., supra (374 S.W.2d 274), as follows:

“We are presently concerned with the right of the State Comptroller, and his two agents, to be sued in Travis County.
* * * -i= * *
“We do not deem it necessary to discuss any questions arisen because of the acts or residence of one or more of the agents of the State Comptroller. The record makes it plain that all of the action already occurred or merely threatened, of which Fitts has complaint in connection with taxation, was actually ‘state-action1. In other words, there is nothing in the case to indicate that any action by the Comptroller, or any deputy, was without legal authority. Therefore complaint thereof, as subject matter of the suit, cannot be treated as though made against them as individuals. That being true the constructive domicile of both the state officer and his agents (in the performance of their duties) is Travis County. Wholly zvithout merit wozild be any contention of a right to maintain venue in Tarrant County by reason of the fact that one or more of the agents of the Comptroller, made party defendants along with said State officer, was a resident thereof for purposes other than as related to ‘state-action1. * * *11

(Emphasis added.)

We hold that the plea of privilege should have been sustained.

The judgment of the trial court is reversed and judgment is rendered transferring the cause to a District Court of Travis County, Texas.

Reversed and rendered.


author: MASSEY, Chief Justice.

text:
    Irving WEBER, Independent Executor of the Estate of Ike Sandler, Deceased, Appellant, v. Francis PRINZ et al., Appellees.
    No. 16527.
    Court of Civil Appeals of Texas. Fort Worth.
    May 8, 1964.
    Hill & Paddock, and Clifford F. Mc-Master, Fort Worth, for appellant.
    McDonald, Sanders, Nichols, Wynn & Ginsburg, and Stanford Harrell, Fort Worth, for appellees.
   MASSEY, Chief Justice.

The questions posed by the appeal may be answered through a statement of circumstances, with the matter of our legal inquiry predicated thereupon.

Circumstances: Three promisors executed a promissory note bearing, in addition to other language, the following-: “payee or other holder hereof may, at any time and from time to time, on request of or by agreement with any of the undersigned, or any party hereafter assuming or otherwise becoming liable hereon, or any part thereof, extend the date of the maturity of all or any part hereof without notifying or consulting with any of the makers hereof, all of whom shall remain fully bound for the payment in full hereof.” The note became past due and unpaid, but before the statute of limitation had run one of the obligors made a payment, by check, to be applied against the note. The payment was received and credited. Thereafter a full four year period expired from the payment due date prescribed by the terms on the face of the note. After this four year limitation period had run, the obligor who had made the payment executed an express written renewal and extension agreement relating to the note wherein he purported to bind the other principal obligors, as well as himself, upon a “new promise to pay”. Of this the other two obligors were unaware until after the renewal and extension agreement had been made and delivered.

One question before the trial court and now before us on the appeal is whether an express written renewal and extension agreement executed by one principal obli-gor (of a note which bore the language we have quoted), after the statute of limitation had run according to the other provisions of the note contract, would be binding upon any other principal obligor and would have operation to renew and extend the liability of such other obligor(s).

The provisions of Vernon’s Ann.Tex.St., Art. S539, “Acknowledgment must be in writing”, have application to the question. A cause of action may be established through the offer in evidence of such a renewal and extension agreement only as against him who executed the same and not against any other obligor on the note. To enlarge the authority of him who executed the renewal and extension agreement so as to empower him to bind others in like manner as he might bind himself,—after the time for the running of the statute of limitation,—would be against public policy in view of the statute. As to any other defendant against whom relief might be sought by suit, entitlement thereto must be based upon the original note and not upon the renewal and extension agreement (which would amount to a “new promise to pay” on the part of only him who executed the same). As to any cause of action on the note, exclusive of any renewal and extension agreement, the defendant(s) would be privileged to defeat same by advancing the four year limitation plea.

Another question is whether one ob-ligor’s payment made on the note, after it was overdue but before the limitation period had run, could have operated to toll the statute or to start the running of a new period of limitation. Mere payment before the statute of limitation has run neither operates as a new promise to pay (and to start the running of a new limitation period) nor to toll the limitation period which theretofore has begun. Article 5539 has no application whatever, for its effect and intent relates to new promises to pay made after the period of the applicable statute of limitation has run, and only then as to-him or them who has in writing made an acknowledgment and promise upon which he or they are sued.

Were the payment made before the statute of limitation had run treated as a “new promise to pay” on the part of him who gave the check in payment (and we have stated that it would have no such effect), yet it could not have operation as a “new promise to pay” by any other principal obligor on the note. To constitute such the “new promise” must be one which by its terms is unequivocal and determinate, a condition which would not be satisfied by mere action in making payment by check to be credited upon note indebtedness.

The student is directed to the text and cited cases in 37 Tex.Jur. 2d, p. 335 et seq., “Limitation of Actions”, Ch. XI, “Acknowledgment, New Promise, and Part Payment”, Ch. XII, “Renewal or Extension of Obligation”, §§ 157-192. Therein the writers correctly accept as a basic premise for their text that the written acknowledgment is one made after the debt is barred by limitation.

Judgment of the trial court was against the defendant who executed the renewal and extension agreement. Because their pleas of limitation were sustained the other defendants were awarded judgment in that it was decreed that the plaintiff “take nothing” as against them.

Judgment is affirmed.


author: WALTER, Justice.

text:
    Eddie PARKER, Appellant, v. The SCHULER CORPORATION, Appellee.
    No. 3875.
    Court of Civil Appeals of Texas. Eastland.
    May 1, 1964.
    Rehearing Denied May 29, 1964.
    Lyne, Blanchette, Smith & Shelton, Ed M. Brown, Dallas, for appellant.
    Goldberg & Alexander, Don Allen Henry, Dallas, for appellee.
   WALTER, Justice.

The Schuler Corporation filed suit against Eddie Parker. It alleged that Parker was employed by it as a salesman on a commission basis; that it furnished Parker samples of gift and accessory items; that it was understood that the samples were to be returned or paid for upon the termination of their business relationship.

The jury found that the parties did not agree that Parker was to pay for the samples upon the termination of their business relationship; that the samples were to be returned and that the samples were to be paid for or returned. Judgment was rendered for Schuler and Parker has appealed.

Parker contends there was no evidence to support the judgment for damages. We agree with this contention.

Schuler delivered samples to Parker for display. Parker had a staff of 27 salesmen who carried the samples with them in their cars. They were displayed to prospective customers. At the termination of their business relationship Schuler requested the return of their samples, “unless you would be able to sell them either to your customers or to your friends at a reduced price.” Parker was offered a 30% price reduction. The parties stipulated on the wholesale price of the samples. The wholesale price at the beginning of their business relationship was no evidence of the value of the samples in the condition they were in at the time and place of conversion. Commercial Credit Corporation v. Flores, Tex.Civ.App., 345 S.W.2d 432, (Ref. N.R.E.).

It appears that this case was not fully developed and that the ends of justice require that it be remanded.

The judgment is reversed and the case remanded.


author: RENFRO, Justice.

text:
    Richard F. MARTIN, Guardian ad Litem for Eva Jaylene Roberts, et al., Appellant, v. T. H. NEEL et al., Appellees.
    No. 16525.
    Court of Civil Appeals of Texas. Fort Worth.
    May 8, 1964.
    Rehearing Denied June 5, 1964.
    Richard F. Martin, Fort Worth, for appellant.
    Ben McClure, Fort Worth, for appellees Cathy Jo Jackson, Deborah Claire Jackson, James Durelle Jackson and Judy Imogene Roberts, minors.
    Brooks, Tarlton, Wilson & Gilbert and Arch B. Gilbert, Fort Worth, for appellees T. H. Neel, W. T. Bonner and First Nat. Bank of Fort Worth, trustee.
   RENFRO, Justice.

The trustees under the last will and testament of J. B. Tubb brought this suit to construe the trust created by the will.

Item Three of the will executed by J. B. Tubb named trustees to manage a trust therein created and called Tubb Mineral Trust.

Paragraph (a) of Item Three reads as follows: “(a) This trust is for the use and benefit of my great grandchildren; that is, children of my granddaughter, Eva Duane Jackson, who survive me, including any other great grandchildren who may be born after my death and during the trust period, they being the beneficiaries of this trust who are entitled to this trust estate as hereinafter provided.”

In paragraph (b) of Item Three it was provided: “This trust shall continue for and during the natural lives of my great grandchildren who are living at the time of my death, * *

The will was executed on July 29, 1953. Tubb died on November 21, 1954. The will was probated on December 20, 1954.

As of the time Tubb executed the will, his granddaughter, Eva Duane Jackson, had given birth to Cathy Jo Jackson (2-13-52) and Deborah Claire Jackson (1-23-53). Before Tubb’s death, James Durelle Jackson was born (12-4 — 53) to Eva Duane, and after his death Judy Imogene Roberts was born (12-1-61) to Eva Duane.

On November 23, 1959, Eva Duane and her then husband, J. W. Roberts, adopted Eva Jaylene Roberts. On May 9, 1963, Eva Duane Roberts Bausch adopted Trina Gay Roberts.

The value of the Tubb Mineral Trust is in excess of $1,500,000.00.

Eva Duane Jackson, Eva Duane Roberts and Eva Duane Roberts Bausch is one and the same person.

In 1963 the trustees brought this action in which the court was requested to answer the following questions:

“1. Are Eva Jaylene Roberts and Trina Gay Roberts beneficiaries of the Tubb Mineral Trust?
“2. In the event Eva Duane Roberts should in the future adopt a child or children who were born prior to the death of J. B. Tubb, would such adopted child or children be beneficiaries of the Tubb Mineral Trust?
“3. In the event Eva Duane Roberts should in the future adopt a child or children who were born subsequent to the death of J. B. Tubb, would such child or children be beneficiaries of the Tubb Mineral Trust?
“4. Would adopted children and adopted descendants of the great grandchildren of J. B. Tubb be contingent beneficiaries of the Tubb Mineral Trust under the first sentence of the second paragraph of subsection (a) of Item Three of the will of J. B. Tubb?
“5. Does the phrase ‘great-grandchildren’ as used in sub-section (b) of Item Three of the will of J. B. Tubb refer also to adopted great-grandchildren and if so to those alive at J. B. Tubb’s death and thereafter adopted or only to those alive and adopted at the date of J. B. Tubb’s death?”

In a nonjury trial all questions were answered in the negative.

The adopted children of Eva Duane, Eva Jaylene Roberts and Trina Gay Roberts, acting through their guardian ad litem, appealed.

Appellants rely heavily upon Art. 46a, Vernon’s Ann.Tex.St., which reads in part as follows: “When a minor child is adopted in accordance with the provisions of this Article, all legal relationship and all rights and duties between such child and its natural parents shall cease and determine, and such child shall thereafter be deemed and held to be for every purpose the child of its parent or parents by adoption as fully as though naturally born to them in lawful wedlock. * * * Such adopted child shall be regarded as a child of the parent or parents by adoption for all other purposes as well, except that where a deed, will, or other instrument uses words clearly intended to exclude children by adoption, such adopted child shall not be included in such class.”

The same problem was before the court in Vaughn v. Vaughn, 161 Tex. 104, 337 S.W.2d 793. In the Vaughn case the testator wrote: “If, as, and when any child of my son, G. H. Vaughn, Jr., is born after my death * * *.”

In the instant case the testator wrote, “ * * * including any other great grandchildren who may be born after my death

The court, in the Vaughn case, said: “In determining the right of Gary William Vaughn, the adopted son of G. H. Vaughn, Jr., to require the trustees to create and establish a new, separate, equal, and distinct trust under paragraph (C) of Section IV of the will of G. H. Vaughn, deceased, Article 46a, Section 9, supra, is not controlling, hut such statute may be considered as an aid to the construction of the will. The Legislature, no doubt, was clothed with power to confer upon the adopted child the right to inherit ‘from and through’ its adoptive parents, but in the case at bar, Gary William Vaughn, the adopted child, is not claiming under the laws of inheritance. He is claiming as a legatee under the will of G. H. Vaughn, deceased. Therefore, his rights are dependent on what was intended by the testator, as expressed in the will. The intent of the testator cannot be supplied by a construction of the meaning of the words of the statute wherein it is provided that ‘ * * * such adopted child shall be regarded as a child of the parent or parents by adoption for all other purposes as well, except that where a deed, will, or other instrument uses words clearly intended to exclude children by adoption, such adopted child shall not be included in such class. * * *

The ultimate question is not as to the meaning of the statute, but what was intended by the testator.

The stipulated testimony shows that testator’s granddaughter had two natural born children and was pregnant as of the date of the execution of the will. Since the third child was born about four months after the execution of the will, it is probable that he knew of the pregnancy when he executed his will.

As heretofore stated, the granddaughter had only two children when Tubb executed the will. Both were natural children. When testator wrote the will referring to his great grandchildren “that is, children of my granddaughter * * * including any other great grandchildren who may be born after my death”, he was referring to the two children already born to his granddaughter, the one to he born in four or five months and any other child that might be born to his granddaughter.

Certainly there is nothing in the record to indicate that Tubb had any reason to suppose that his granddaughter (apparently a young woman) ever contemplated adopting a child or children. As shown by the dates of the births of the first three children, one would not suppose that she would ordinarily want to adopt other children.

Where, as here, the court is concerned with the construction of a written instrument and the right to reformation, recission or other equitable relief is not in issue, the intention of the party must be determined from the language of the instrument and the circumstances of its execution. Cutrer v. Cutrer, 162 Tex. 166, 345 S.W.2d 513, 86 A.L.R.2d 105.

The use of the words “great grandchildren who may be horn after my death” renders it most improbable that he was referring to children born to strangers. Vaughn v. Vaughn, supra.

We hold that the district court rendered a proper judgment. The will, to our mind, shows that Tubb meant to create a trust for his natural great grandchildren. The appellants, not having been born to Eva Duane, were not included in the Tubb Mineral Trust. The testator by the use of “born” intended the word “born” to mean children born to his granddaughter.

Both appellants and appellees request that the judgment in so far as it fixes the attorney’s fees awarded to the guardians ad litem for the respective parties be remanded to the trial court for further consideration. It appearing that justice will be best served by remanding that part of the judgment, we accordingly reverse and remand that part of the judgment, only, pertaining to attorney’s fees.

Judgment awarding attorney’s fees is remanded to the trial court for further consideration; in all other respects the judgment is affirmed.

Affirmed in part; reversed and remanded in part.