author: WALTER, Justice.

text:
    STANDARD ACCIDENT INSURANCE COMPANY OF DETROIT et al., Appellants, v. SMITH PERRY ELECTRIC COMPANY, Appellee.
    No. 3812.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 11, 1963.
    Rehearing Denied Nov. 15 and Dec. 6, 1963.
    Turner, Rodgers, Winn, Scurlock & Terry, Dallas, for appellants.
    Matthews & Matthews, Dallas, for ap-pellee.
   WALTER, Justice.

Appellee’s motion for rehearing is overruled. We adhere to our order reversing the judgment of the trial court and remanding the case for trial. However, the opinion handed down in this case on May 24, 1963, is withdrawn and the following substituted therefor:

This is a summary judgment case. Hen-ger Construction Company contracted with Southwestern Bell Telephone Company to make alterations and additions to a building in Wichita Falls. Standard Accident Insurance Company executed a surety bond for Henger. Southwest Electric Company was the electrical subcontractor on the job. Smith Perry Electric Company filed this suit against Standard Accident Insurance Company, Henger Construction Company and Southwest Electric Company for materials furnished Southwest Electric Company.

The plaintiff’s and defendants’ motions for summary judgment were submitted to the court on the 9th day of February, 1962. On the 19th of February, 1962, the court advised counsel that he was sustaining plaintiff’s motion. The judgment was not entered until March 13, 1962. After the court had announced his decision, the Insurance Company and Henger filed “Defendant’s Action Over Against Defendant, W. E. Archer.” The court entered an order of severance, insofar as the defendants’ action against Archer was concerned. This was proper. Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200.

Henger and the Insurance Company have appealed from such judgment contending the court erred (1) in denying their motion for summary judgment (2) in granting Smith Perry Electric Company’s motion for summary judgment and (3) in granting a severance.

Appellants contend the court erred in granting the summary judgment because there was a fact issue involved as to whether or not the contract and bond was intended for the benefit of appellee, whether or not appellee furnished material “under the contract”, and whether or not the de-feasance clause of the bond was satisfied by payment for the materials in question by Henger to Southwest Electric Company. Also, Southwest Electric executed and delivered a note to appellee. Appellants contend that such note was in full payment for the materials furnished by appellee to Southwest Electric. Appellee admits the execution and delivery of such note but denies that it was accepted in payment of the debt. Appellants contend there was a fact issue raised as to whether or not it was the intention of the parties that the note be considered as payment of the debt.

In the appellants’ second amended original answer it pleaded as follows:

“Defendant, Southwest Electric Company executed and delivered to Plaintiff, Smith Perry Electric Company a promissory note in full payment for the material furnished to Southwest Electric Company by Smith Perry Electric Company on the job in question, which note said Plaintiff accepted and received in full payment for said materials furnished.”

The following is copied from the appellants’ affidavit in opposition to appellee’s motion for summary judgment, said affidavit having been executed by J. E. Sergeant, engineer and supervisor for the Henger Construction Company. The portion of said affidavit applicable here is as follows:

“J. E. Sergeant further says that defendant Southwest Electric Company executed and delivered to plaintiff Smith Perry Electric Company a note in payment for the material furnished to Southwest Electric Company by Smith Perry Electric Company on the job in question.”

In reply to Sergeant’s affidavit, the appellee filed an affidavit by Mr. James A. Morrow, executive vice president and general manager of Smith Perry Electric Company. The material portions of such affidavit are as follows:

“When I accepted for Smith-Perry Electric Company the note referred to in the Affidavit of J. E. Sergeant, I had no knowledge of this bond sued upon or any other bond.
“The main reason I accepted the note for Smith-Perry was to have written evidence of the indebtedness owing to Smith-Perry by W. E. Archer. I did not accept the note for Smith-Perry as partial payment or full payment of the indebtedness due Smith-Perry.”

On the hearing of a motion for a summary judgment the court must determine whether there is any issue of fact to be tried. The court cannot weigh the evidence, determine the credibility of the witnesses or try the case on affidavits. All doubts as to the existence of a genuine issue as to a material fact must be decided against the party moving for a summary judgment. The court must accept as true all evidence of the party opposing such a motion which tends to support his contention and must give him the benefit of every reasonable inference which may be drawn therefrom. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Box v. Bates, 162 Tex. 184, 346 S.W.2d 317.

After applying these well established principles of law to the facts in this case, we have concluded that a material issue of fact existed relating to the acceptance of the note by appellee from Southwest Electric in payment for the materials. Valley Stockyards Company v. Kinsel, Tex.Sup., 369 S.W.2d 19; James T. Taylor and Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371.

“Intention in these situations is the important thing. The giving of a note by a debtor, or by one of several joint debtors, or the giving of a renewal note, constitutes payment and discharges the original debt or note if the parties so agree or intend. As to whether there was a payment depends upon the intention of the parties and the facts of the particular case. Intention may be shown by circumstances, and is generally a question of fact for the jury.” 32 Tex.Jur. 662.

The judgment is reversed and the cause remanded.

On Motion for Rehearing.

Appellants were not entitled to recover, as a matter of law, based on their contentions that the appellee was not within the terms of the bond and contract and that appellant, Henger, satisfied the terms of the contract and the terms of the defeasance clause of the surety bond by making progress payments. Appellants’ points relative to these two propositions are overruled.

Appellee’s cross-point that the trial court erred in sustaining appellants’ special exception to appellee’s pleadings for attorney’s fees can not be sustained. Article 2226 of Vernon’s Annotated Civil Statutes authorizes a recovery of attorney’s fees in certain actions. Concerning Article 2226 the court in United States Life Ins. Co. v. Hamilton, Tex.Civ.App., 238 S.W.2d 289 at page 291 said:

“Since this article is penal in nature, like other similar statutory provisions authorizing the recovery of attorney’s fees in derogation of the common law, it should be strictly construed and applied.”

In F. & C. Engineering Co. v. Moore, Tex.Civ.App., 300 S.W.2d 323, (Writ Ref. N.R.E.), the contractor was held liable for attorney’s fees under Article 2226 but in that case the court found that the general contractor, for a valuable consideration, personally promised the materialman that it would be responsible for and guarantee payments for all materials delivered to the subcontractor. The court said “Under these circumstances, the general contractor was not a stranger to the contract, but was a primary obligor and liable for attorney’s fees ” The court further held that attorney’s fees were not recoverable as against the surety. In the instant case no such contract existed. That distinguishes this case from the F. & C. Engineering Company v. Moore. After considering the record and the authorities, we hold that the court did not err in sustaining said exception.

What we have said on this motion for rehearing does not affect our holding in our original opinion. The motion for rehearing is, therefore, overruled.


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    ALLIED FINANCE COMPANY, Appellant, v. M. T. SHAW et al., Appellees.
    No. 16450.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 1, 1963.
    Rehearing Denied Dec. 6, 1963.

      Locke, Purnell, Boren, Laney & Neely, and J. L. Shook, Dallas, for appellant.
    Kerr, Day & Cook, and Joe Day, Jr., Fort Worth, for appellee Shaw.
    Tom J. Murphy, Jr., Fort Worth, for appellee Gage.
   LANGDON, Justice.

This is an appeal from an order refusing to grant a temporary injunction.

The appellees obtained a judgment against the appellant for $4,950.00 in the 48th District Court on December 15, 1961. An appeal perfected by Allied was affirmed by this Court and became final. Allied Finance Co. v. M. T. Shaw et ah, Tex.Civ. App., 359 S.W.2d 168. Upon affirmance a mandate was issued and the District Clerk of Tarrant County issued an execution reciting that Allied’s property be levied upon. The Sheriff of Tarrant County was attempting to levy when Allied filed a delivery bond and obtained a temporary restraining order from the 48th District Court enjoining the appellee, the Sheriff and District Clerk from proceeding further with the execution. The trial court refused to enter a temporary injunction but continued the restraining order in effect pending this appeal.

In essence, the appellant, after having invoked the jurisdiction of this Court by perfecting an appeal and failing to apply for writ of error following an adverse decision, now seeks by this suit to enjoin enforcement of our mandate and thus circumvent the judgment and order of this Court.

The record in this case presents an involved judicial entanglement which has no parallel in this Court. In this day and time of congested dockets in both trial and appellate courts it is and should be the purpose of our rules finally to settle controversies rather than to multiply them. A controversy such as this was never contemplated by our Texas rules which seek to promote efficiency and to control the operation and procedure of our courts.

The events leading up to this appeal will be reviewed with as much brevity as the record will permit.

This complicated legal entanglement involving four previous appeals to Courts of Civil Appeals and one to the Supreme Court of Texas had its beginning on March 14, 1958, at which time Allied Finance Company, hereinafter referred to as Allied, filed suit for foreclosure of a chattel mortgage lien and a certificate of title lien on an automobile in Dallas County, Texas. A plea of privilege to be sued in Tarrant County was filed. Allied had the automobile taken by writ of sequestration before the plea was acted upon. It then amended its petition requesting the appointment of a receiver. The receiver was appointed and thereafter seized the automobile from the Sheriff of Tarrant County who had obtained it under the writ of sequestration. The receiver sold the car for $4,950.00 cash. An appeal was taken from the order appointing the receiver. It was not superseded and the appeal was dismissed as moot since the car was already sold. Shaw v. Allied Finance Company (Tex.Civ.App., Fort Worth), 319 S.W.2d 820.

The trial court overruled the plea of privilege and its action was sustained by the Dallas Court of Civil Appeals. Shaw v. Allied Finance Company, 330 S.W.2d 690 (October 23, 1959); rehearing denied December 11, 1959. The Supreme Court reversed the Dallas Court of Civil Appeals and the trial court and ordered the case transferred to Tarrant County. Shaw v. Allied Finance Company (Sup.Ct.), 161 Tex. 88, 337 S.W.2d 107 (June 22, 1960); rehearing denied July 20, 1960.

On March 11, 1960, during the pendency .of the venue appeal, subject to his plea of privilege, Shaw filed a cross-action seeking damages against Allied for wrongful sequestration, conversion, abuse of process, and other recoveries as he feared that two years might pass from the time his car was taken until the suit should be removed to Tarrant County.

On August 12, 1960, after the Supreme Court’s mandate ordering venue changed to Tarrant County had been filed in the District Court of Dallas County, Allied took a nonsuit as to its cause of action against Shaw and same was dismissed. This was after Allied had caused the car to be taken from Shaw and sold by the receiver. “Allied now has no claim pending against Shaw.” Allied Finance Company v. M. T. Shaw (Tex.Civ.App., Fort Worth), 359 S.W.2d 168.

The Supreme Court’s mandate ordering transfer of the case to Tarrant County was handed down on July 22, 1960. Thereafter on September 15, 1960, Allied filed a plea of privilege in the Dallas County District Court, “because M. T. Shaw is attempting to have said cross-action transferred to Tarrant County, Texas.” On the same day Shaw’s motion for an order to transfer the cause to Tarrant County was heard. A judgment granting the motion was entered on September 27, 1960. In the same judgment Allied’s alleged lien was foreclosed as a “first lien” and the receiver was instructed to deliver the proceeds of the sale of the car to Allied which was done. On November 18, 1960, the judgment was modified so as to order Allied to pay the proceeds of the sale to the District Clerk of Dallas County, subject to the order of the proper district court of Tarrant County, which was done. Allied objected to the transfer of the cross-action to Tarrant County and to being required to pay the money to the clerk’s office. Shaw contended that the money should have been paid to him rather than to the clerk and that the trial court was in effect attempting to adjudicate a controversy which the Supreme Court had ordered tried in Tarrant County. Allied appealed and Shaw filed cross-points and on September 5, 1961, the Court of Civil Appeals at Texarkana dismissed the appeal for want of jurisdiction.

At this point in the proceedings appeals have been acted upon by the Courts of Civil Appeals at Dallas, Fort Worth and Texarkana and by the Supreme Court of Texas.

On November 8, 1961, the transcript reached the 48th District Court in Tarrant County (Cause No. 23012) pursuant to the mandate of the Supreme Court. “Thereafter, C. L. Gage intervened, claiming the proceeds of the sale * * * ($4,950.00) and all other rights of Shaw * * * under an assignment executed by Shaw, * * which appears to be sufficient to effect the transfer.” 359 S.W.2d 168, supra, p. 170.

Shaw filed a motion for an order requiring Allied to show cause why the Dallas County District Clerk should not be required to pay the money over to him and Allied filed a plea of privilege to the show cause order, Gage’s intervention and Shaw’s cross-action. Shaw filed a motion to strike the plea and subject thereto a controverting plea. Allied, subject to its plea of privilege, filed a general denial and pleas of limitation to Shaw’s cross-action. By its judgment dated December 15, 1961, the 48th District Court of Tarrant County sustained the motion to strike Allied’s plea of privilege and ordered the District Clerk of Dallas County to pay the proceeds of the sale ($4,950.00) to Gage, as Shaw’s as-signee. (It should be kept in mind that under the judgment of the 116th District Court of Dallas County the ($4,950.00) proceeds of the sale of the automobile were to be held by the District Clerk of that County subject to the order of the appropriate court of Tarrant County.)

Allied appealed from the December 15, 1961 judgment of the 48th District Court of Tarrant County, in cause No. 23012 which had ordered the District Clerk of Dallas County to pay the proceeds of the sale ($4,950.00) to Gage.

It appears from a supplemental transcript filed in this Court on April 6, 1962 that the District Court of Dallas County ordered its clerk to transfer the $4,950.00 to the District Clerk of Tarrant County after notice of appeal was given and a supersedeas bond had been filed by Allied.

The judgment of the 48th District Court was affirmed by the Court of Civil Appeals at Fort Worth. Allied Finance Company v. M. T. Shaw, 359 S.W.2d 168, supra. The following excerpts are taken from 359 S.W.2d page 171 of the opinion. “When the Supreme Court ordered the venue changed to Tarrant County, the question as to where the case should be tried was settled, including the cross-action. (Authorities cited.) It is immaterial whether the cross-action was filed before or after the contest of the plea of privilege. (Authorities cited.) After the transcript from the District Court of Dallas County had been filed in the District Court of Tarrant County, Allied’s last plea of privilege, if maintained, would have taken the case back to Dallas County. We think the trial court properly struck that plea.

“We are unable to concede that Allied has any justiciable interest in the fund in controversy. Since that fund constituted the proceeds of the sale of the car which Allied had caused to be taken from Shaw’s possession, and which Shaw claimed by title superior to Allied’s mortgage, and since Allied, after the Supreme Court has ordered the case transferred to Tarrant County, took a non-suit and dismissed as to Shaw, we think Allied dismissed as against Shaw its claim to the fund.

“The non-suit and dismissal did not destroy the adverse judgment transferring the cause. (Authorities cited.) Allied says that it had not been served with process on Shaw’s cross-action. It was on file in the District Court of Dallas County long before the non-suit. The rule seems to be that a plaintiff who dismisses his cause of action must take notice of the state of the record at that time, and it is not necessary that he be cited to answer a cross-action then pending. (Authorities cited.)” Following its opinion dated June 1, 1962 (rehearing denied July 13, 1962) and after the time for application for writ of error had passed, the following mandate was issued by this Court: “This cause came on to be heard on the transcript of the record, and the same having been reviewed, it is the opinion of the Court that there was no error in the judgment. It is therefore ordered, adjudged and decreed that the judgment of the trial court in this cause be and it is hereby affirmed.

“It is further ordered that appellees M. T. Shaw and C. L. Gage do have and recover of and from appellant Allied Finance Company the amount adjudged below, together with all costs in this behalf expended, both in this court and in the trial court, for which let execution issue, and that this decision be certified below for observance.”

On December 28, 1961, after the cause of action was transferred to the 48th District Court in Tarrant County by order of the Supreme Court, Allied Finance Company filed an original petition in Cause No. 65305F in the 116th District Court of Dallas County, involving the same subject matter and the same parties except that the District Clerk of Dallas County as stakeholder was named as a defendant. On April 10, 1962, M. T. Shaw and C. L. Gage were served but did not appear or answer and on May 29, 1962, judgment was entered directing Bill Shaw, District Clerk of Dallas County, to pay over to Allied the $4,950.00 representing the proceeds from the sale of the car.

Thereafter Allied filed an amended motion for rehearing with this court on June 29, 1962, in connection with the appeal involved in 359 S.W.2d 168, supra, in which it contended that the judgment of the Dallas trial court in cause No. 65305F was res judicata as to any issue which was or could be decided by the 48th District Court of Tarrant County or by this Court of Civil Appeals. The motion further pointed out that pursuant to the judgment of the Dallas District Court that the District Clerk had paid the $4,950.00 over to Allied. This judgment was subsequent to the judgment of the 48th District Court which Allied appealed from ordering tire money paid over to Shaw et al.

As indicated above Allied’s motion for rehearing was overruled on July 13, 1962, and the mandate of this Court ordered Allied rather than the Dallas County District Clerk to pay the $4,950.00 to Gage since it appeared that the funds were then in the hands of Allied. Thus by its mandate the Court of Civil Appeals ordered the money paid over by Allied.

Following affirmance and issuance of the mandate in the fourth appeal to a court of civil appeals, 359 S.W.2d 168, supra, the District Clerk of Tarrant County issued the execution and on November 14, 1962, the Sheriff of Tarrant County was attempting to levy upon Allied’s property in line with the mandate of this Court which finally brings us to the action leading to this appeal.

On November 19, 1962, Allied filed an amended petition and cross-action against M. T. Shaw, C. L. Gage and the Sheriff and District Clerk of Tarrant County seeking to enjoin them from proceeding further under the execution and seeking a summary judgment based upon the finality of the default judgment it had obtained in the 116th District Court of Dallas County on May 29, 1962, involving the same parties and subject matter as were involved in the December 15, 1961 judgment of the 48th District Court of Tarrant County, which was affirmed on appeal to this Court. 359 S.W.2d 168, supra. The appellant also prayed that the execution be declared void and that the judgment of the 116th District Court of Dallas County be declared res judicata and a bar to any further action. The trial court granted a temporary restraining order and thereafter following the hearing on December 3, 1962, Allied’s motion for temporary injunction was denied. In the order fixing the amount of the supersedeas bond the temporary restraining order was continued in effect pending the appeal from the order denying the injunction.

After this appeal from the order of December 3, 1962 was perfected, the trial judge on January 16, 1963, granted the appellant’s motion for summary judgment holding in effect that the Dallas County judgment was final and that since it had never been directly attacked it therefore was res judicata and in bar. It decreed a take nothing judgment against Allied and adjudged all costs against appellees.

It is our opinion that when Allied’s original action filed in Dallas County was ordered transferred by the Supreme Court of Texas to Tarrant County and it was finally lodged in the 48th District of Tarrant County that Court acquired exclusive jurisdiction of the suit.

“Jurisdiction is power to hear and determine the matter in controversy according to established rules of law, and to carry the sentence or judgment of the court into execution. (Authorities cited.)” Cleveland et al. v. Ward, District Judge, et al., 116 Tex. 1, 285 S.W. 1063.

The case just cited further held: “When suit was filed in the Johnson County District Court, the jurisdiction of that court attached, with power on the part of the court to permit the pleadings to be amended and amplified, new parties to be made, to determine all essential questions, and to do any and all things with reference thereto authorized by the Constitution and statutes, or permitted District Courts under established principles of law. (Authorities cited.)”

Further quoting from Cleveland v. Ward, supra: “The rule that a valid judgment for plaintiff is conclusive, not only as to defenses which were set up and adjudicated, but as to those which might have been raised inconsistent with the facts necessary to sustain the judgment, is one of universal acceptation. * * * 34 Corpus Juris, p. 854, § 1266, p. 856, § 1267; Freeman on Judgments (5th Ed.) Vol. 2, §§ 674, 688, 692, 693, 774, 787. (Other authorities cited, including Peck v. Jenness, 7 How. 612, 48 U.S. 612, 12 L.Ed. 841.)

“In the case of Peck v. Jenness, just cited, the Supreme Court of the United States said:

“ ‘It is a doctrine of law too long established to require a citation of authorities, that, where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and, whether its decision be correct or otherwise, its judgment, till reversed, is regarded as binding in every other court; and that, where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court. These rules have their foundation, not merely in comity, but on necessity. For, if one may enjoin, the other may retort by injunction, and thus the parties be without remedy; being liable to a process for contempt in one, if they dare to proceed in the other.’ ”

Further quoting from Cleveland v. Ward, supra, the court emphasized the following language from the case of French v. Hay, 22 Wall. (U.S.) 250, 22 L. Ed. 857:

“ ‘Having the possession and jurisdiction of the case, that jurisdiction embraced everything in the case, and every question arising which could be determined in it until it reached its termination and the jurisdiction was exhausted. While the jurisdiction lasted it was exclusive, and could not be trenched upon by any other tribunal.’

“In the case of Maclean v. Speed, supra, (52 Mich. 257, 18 N.W. 396) Chief Justice Cooley declared the rule, which has become a familiar text, as follows:

“ ‘It is a familiar principle that, when a court of competent jurisdiction has become possessed of a case, its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of; and no court of co-ordinate authority is at liberty to interfere with its action. The principle is essential to the proper and orderly administration of the laws; and while its observance might be required on the grounds of judicial comity and courtesy, it does not rest upon such considerations exclusively, but is enforced to prevent unseemly, expensive, and dangerous conflicts of jurisdiction and of process. If interference may come from one side, it may from the other also, and what is begun may be reciprocated indefinitely.’ * * *

“Mr. Freeman, discussing the very question here involved (in Vol. 1, § 335), says:

“ ‘It seems impossible that two courts can, at the same time, possess the power to make a final determination of the same controversy between the same parties. If either has authority to act, its action must necessarily be exclusive, and therefore it is our judgment that whenever either the state or the national courts acquire jurisdiction of an action and the parties thereto, this jurisdiction cannot be destroyed, diminished, or suspended by one of the parties bringing an action in another court, and that any judgment or order of the latter court is void so far as it conflicts with any judgment or order of the court first acquiring jurisdiction.’

“This extract from Freeman we believe states the sound rule, and the only rule which will prevent races from court to court by-vigilant counsel, such as this record discloses, and that conflict in the exercise of judicial power in evidence here, which we believe was never contemplated under our judicial system.”

The controversy between the parties as to the right to the sum of $4,950.00 was finally settled and the matter concluded when this Court affirmed the judgment of the 48th District Court and the mandate of this Court was issued on affirmance after the failure of Allied to apply for writ of error. Thereafter Allied could not reliti-gate the same issue by filing another suit in Tarrant County or elsewhere. Nor could Allied defeat the jurisdiction of this Court by such action after having invoked same by its appeal. This Court was for the first time apprised of the judgment of the Dallas County Court dated May 29, 1962, by the appellant’s second or amended motion for rehearing, in which it was recited that Allied had obtained the $4,950.00 from the District Clerk of Dallas County. In order to protect,its jurisdiction which had been invoked by Allied’s appeal, this Court then ordered Allied to pay over the suiri of $4,950.00 to appellees. It cannot be disputed that this Court had jurisdiction and the power to affirm the trial court and to order execution directly against Allied to protect its jurisdiction and to protect the status quo guaranteed by appellant’s su-persedeas bond. See Glass v. Smith, 66 Tex. 550, 2 S.W. 195; Davis v. Wichita State Bank & Trust Co. (Tex.Civ.App., Amarillo), 286 S.W. 584, dismissed W.O.J.; Hart v. Hunter, 52 Tex.Civ.App. 75, 114 S.W. 882, error refused; Andrews v. Whitehead (Tex.Civ.App.), 60 S.W. 800 and 34 Tex.Jur.2d 203 and cases cited therein. See also Article 1823, Vernon’s Ann.Tex.Civ.St.

The holdings announced in a former appeal constitute the law of the case. Matters that were either presented to or directly passed upon or which were in effect disposed of on a former appeal to a Court of Civil Appeals will not again be passed upon by that court. State v. Stone (Tex.Civ.App., Beaumont), 290 S.W.2d 761, ref. n. r. e.; Hillhouse v. Allumbaugh (Tex.Civ.App., Eastland), 258 S.W.2d 826, ref., n. r. e. See the rule as stated in 4 Tex.Jur.2d 696, and authorities cited.

While the mandate issued by this court on affirmance of the prior judgment of the 48th District Court in 359 S.W.2d 168, supra, may possibly have been inconsistent with the opinion and its recitations and improper, nevertheless it, together with the opinion of the court, constituted the law in the case. As such, it was binding upon the parties to the judgment and in every other court until reversed, and this is true regardless of whether the decision be correct or otherwise. (Cleveland v. Ward, supra.) The appellant may not at this late date attack the validity of the opinion or the mandate as they have become final.

It is not necessary to pass upon the validity of the Dallas County judgment dated May 29, 1962, which was entered a few days before the date this court handed down its opinion on the prior appeal. We are therefore not in conflict with the holding in McEwen, Relator, v. Harrison, District Judge et al., Respondents, 162 Tex. 125, 345 S.W.2d 706, page 710, concerning the necessity of a direct attack upon void judgments or with that portion of the opinion in Cleveland v. Ward, supra, to the same effect, because the holding and mandate of this- Court on the previous appeal constitutes the law of the case and the appellant Allied was ordered to pay (in per-sonam) the sum of $4,950.00 to the appel-lees. The mandate of this Court ordering such payment by Allied may be enforced without affecting the Dallas County judgment which deals with a particular fund in the hands of the Dallas County Court. Further the Dallas County judgment entered after the appeal to this court was perfected by Allied and during the time it was being considered by this Court does not affect the ruling of this Court nor impede or bar the enforcement of the mandate issued by it and from which Allied did not apply for writ of error.

Once the judgment of the 48th District Court of Tarrant County was affirmed by this Court such trial court was without authority to entertain any motion or take any action inconsistent with the mandate of this Court. Certainly it was without authority to interfere with its enforcement by temporary restraining order or by entertaining a motion for summary judgment. Its duty was to enforce the mandate.

Ordinarily the court of civil appeals may not consider events transpiring after the rendition of a judgment which is the subject of appeal. The motion for summary judgment granted after the appeal in this case was perfected was brought to our attention on presentation of appellant’s motion for affirmance of judgment on certificate. The clerk of this Court was instructed to withhold the filing of such motion, pending disposition of this appeal and in view of the disposition we have made the clerk is instructed not to file same. The summary judgment as well as the action of the trial court in granting the temporary restraining order enjoining the execution against Allied are invalid because, first, each is in direct conflict with the mandate of this Court and the law of the case, and, second, once Allied perfected an appeal from the order of the trial court denying its application for temporary injunction the trial court had no further jurisdiction in the matter until the appeal became final.

After Allied invoked the jurisdiction of this Court and received an adverse ruling and failed to apply for a writ of error the trial court should have refused to take any action on the amended petition filed by Allied seeking to enjoin enforcement of our mandate issued on affirmance of the trial court’s judgment against it. The trial court’s duty was to make certain that the mandate was enforced. See 3 Tex.Jur.2d 597, 598, and cases cited.

On the basis of the long and tedious record in this case and the authorities and reasons stated herein and in the hope that this litigation may be finally terminated, the temporary restraining order issued by the trial court and its summary judgment dated January 16, 1963, are and each is hereby declared to be void. The trial court is directed to forthwith set aside said order and judgment and to dismiss the amended petition filed by Allied in this cause. All costs in the trial court and on this appeal shall be paid by Allied. The trial court is further directed to proceed against Allied’s appeal and supersedeas bonds and otherwise to enforce the previous mandate of this Court. In addition to the sum of $4,-950.00 Allied shall pay interest on such sum from the date the previous mandate of this Court was issued.

In view of what we have said all points of error and counterpoints not otherwise disposed of by this opinion are overruled. Further the clerk of this Court is directed not to file the motion of appellant for af-firmance on certificate in view of our disposition of this case.

The prayer of appellees for 10% of the amount in dispute as damages pursuant to Rule 438, Texas Rules of Civil Procedure, is denied as being inapplicable under the facts of this case.

We assume that the trial court, without further action on the part of this Court, will set aside the restraining order and summary judgment, dismiss the amended petition of Allied and that the previous mandate of this Court will be complied with at once in order that this litigation may be concluded.

Reversed with instructions to the trial court.


author: BELL, Chief Justice.

text:
    W. Howard LEE, Appellant, v. Hedy Lamarr LEE, Appellee.
    No. 14205.
    Court of Civil Appeals of Texas. Houston.
    Nov. 14, 1963.
    Rehearing Denied Dec. 12, 1963.
    Jack Binion and Fletcher H. Etheridge, Houston, Butler, Binion, Rice & Cook, Houston, of counsel, for appellant.
    Percy Foreman, Levert J. Able, Nick C. Nichols, Miller B. Walker, Jr., and Charles F. Cockrell, Jr., Houston, for appellee.
   BELL, Chief Justice.

On September 8, 1961, appellee filed her amended statement pursuant to Rule 187, Texas Rules of Civil Procedure, seeking to perpetuate the testimony of certain named witnesses. The amended statement was filed because the trial court had held the original statement to be insufficient and had enjoined the taking of depositions. At the time of filing the amended statement, appellee filed her petition to dissolve the injunction theretofore granted. Appellant opposed such petition, but the trial court, after a hearing, dissolved the injunction. Appellant appealed to this Court from the order dissolving the injunction. After our jurisdiction over such appeal vested, we, on a petition for an original writ of injunction, granted an injunction enjoining the taking of the depositions until we and the Supreme Court could determine the merits of the appeal. This was done to preserve our jurisdiction over the appeal. Lee v. Lee et al., 355 S.W.2d 255. We then, on hearing the appeal, affirmed the action of the trial court in dissolving the injunction and the Supreme Court, finding no reversible error, refused a writ of error. Lee v. Lee et al., 359 S.W.2d 654. Our mandate issued January 24, 1963.

While the above mentioned appeal was pending, the Supreme Court had, by amendment, made substantial changes in Rule 187. The amended rule was effective September 1, 1962.

On January 29, 1963, appellant filed what he denominated “Special Exceptions and Motion to Prohibit Depositions until Amendment.” We need not notice such special exceptions but it will suffice to say that appellant took the position that since appellee had taken no steps, other than the filing of the amended statement, to take depositions, Rule 187 as amended applied, and the amended statement did not comply with the requirements of the amended rule. The special exceptions pointed out the alleged defects. Following the special exceptions there was a prayer asking for a hearing on the exceptions and motion; that the exceptions be sustained; and that the court order no depositions taken until appellee by amendment comply with the provisions of Rule 187. There was also a general prayer for relief.

A hearing was held and the court entered its order decreeing that appellant’s “Special Exceptions and Motion to Prohibit Depositions until Amendment” be overruled. Appeal in this case is from this order.

We are of the view there is no final judgment and we are, therefore, without jurisdiction and the appeal must be dismissed.

A proceeding to perpetuate testimony through the taking of depositions to be used in an anticipated suit is purely an ancillary matter. 34 Texas Law Review 319; Lambert v. Texas Employers’ Ins. Ass’n, 121 S.W.2d 406 (C.C.A.), no writ history; Ramsey v. Gardner, 154 Tex. 457, 279 S.W.2d 584. The taking of the depositions is not an end within itself but is in aid of a suit which is anticipated. It is, therefore, analogous to bills of discovery in aid of suits and the cases holding appeals from orders allowing or refusing discovery in connection with a law suit are applicable to appeals from orders allowing proceedings to perpetuate testimony. These are held to be non-appealable. Equitable Trust Co. et al. v. Jackson, 129 Tex. 2, 101 S.W.2d 552.

Appellant relies on the case of Dallas Joint Stock Land Bank v. State ex rel. Cobb, 135 Tex. 25, 137 S.W.2d 993. That case was one where a bill of discovery was filed to ascertain the names of stockholders and the amount of stock held by them so that the State could assess stock for taxation. The Supreme Court approved the holding of the Court of Civil Appeals, holding the judgment granting discovery to be a final one and thus appealable. The Court of Civil Appeals, in an original proceeding, issued its mandamus to require the trial court in such case to fix a supersedeas bond. Dallas Joint Stock Land Bank v. Rawlins, 129 S.W.2d 485. As the Court of Civil Appeals pointed out, the sole object of the discovery proceeding was to obtain the names of the stockholders and the amount of stock they owned so the stock could be taxed. It did not seek evidence to be used in a pending law suit or a contemplated one. It is, therefore, inapplicable here.

We are of the view that the pleading filed by appellant was not intended as a petition for injunction. It certainly, in form, is not a petition for injunction. It asserts no facts, or even conclusions, which show any equity in appellant’s favor which would entitle him to the equitable relief of injunction. We feel no construction can be given the pleading other than that it was one urging special exceptions and asking that appellee be required to amend her statement. The order entered amounts to nothing more than one overruling the exceptions and refusing to require an amendment of the statement.

The appeal is dismissed.


author: TIREY, Justice.

text:
    LaCOASTAL PETROLEUM CORPORATION, Appellant, v. LONE STAR PRODUCING COMPANY et al., Appellees.
    No. 4189.
    Court of Civil Appeals of Texas. Waco.
    Nov. 14, 1963.
    Rehearing Denied Dec. 12, 1963.

      Crozier, Sweet & Freeman, Dallas, for appellant.
    Roy E. Pitts, Thomas M. Gormley, and Frederick W. Fraley III, Dallas, Wilson, Miller, Spivey & Steger, Tyler, for appel-lees.
   TIREY, Justice.

This is an appeal from a summary judgment. The LaCoastal Petroleum Corporation brought the action for specific performance of a contract to assign an oil and gas lease and, in the alternative, for damages. The contract in question is commonly known in the oil business as a farmout agreement. The agreement was entered into by and between Lone Star Producing Company and Coulston Drilling Company and, with the consent of the Lone Star Producing Company, was assigned by Coul-ston Drilling Company to LaCoastal Petroleum Corporation. LaCoastal Petroleum Corporation drilled the well as provided for in the agreement and made demand upon Coulston Drilling Company and the Lone Star Producing Company for an assignment of the lease covered by the farmout agreement. Coulston Drilling Company tendered an assignment to LaCoastal Petroleum Corporation which reserved twenty acres in the form of a square of the lease around a producing well which had previously been drilled by Lone Star Producing Company on the tract in question. Lone Star Producing Company, by way of cross-action, pleaded mutual mistake in the farmout agreement and alleged that LaCoastal Petroleum Corporation had notice of such mistake. The foregoing statement is taken substantially from appellant’s brief. The Lone Star Producing Company says that the foregoing statement is substantially correct, except: (1) That appellee Coulston Drilling Company did not assign the farm-out letter to appellant LaCoastal Petroleum Corporation, but that it did assign to that company 63/64ths of all rights acquired by “me (Coulston) in the farmout letter * (2) That the assignment tendered appellant LaCoastal by appellee Coulston did not reserve the entire interest in twenty acres in the form of a square around the producing oil well previously drilled by appellee Lone Star, but that it did reserve, in addition to that well, all leasehold rights and interests covering all of the oil and oil rights under the twenty acres in the form of a square.

All parties filed motions for summary judgment, and the Court sustained the motions for summary judgment filed by Lone Star Producing Company and Coul-ston Drilling Company, and entered a judgment reforming the farmout agreement on the ground of mutual mistake. The Court denied the motion of LaCoastal Petroleum Corporation, and LaCoastal Petroleum Corporation has perfected its appeal.

The Court in its judgment and decree made the following findings:

“1. That at the time of the execution of the contract and/or farmout agreement dated April 9, 1962, Lone Star Producing Company was the owner of a producing oil well, commonly known and referred to as Lone Star Producing Company’s Bryan Estate No. 2 Well, located in the southwest corner of the leasehold premises referred to in said contract and farmout agreement. That at the time of the execution of said contract and/or farmout agreement, it was understood and agreed by and it was the intention of Lone Star Producing Company and Coulston Drilling Company that there was to be reserved by Lone Star Producing Company and its successors and assigns from the operation of said contract and farmout agreement all rights, title and interest in and to the aforementioned well located on said premises, together with all leasehold rights and/or personal property, including the well, casing, pipelines, pumps, tanks and other equipment located on said premises or used and obtained in connection therewith, together with all rights in the oil and oil rights under twenty acres in the form of a square with the well located in the middle thereof as near as practicable surrounding such well.
“2. That through mere error in drawing said contract and/or farmout agreement, and as a result of a mutual mistake between the said Lone Star Producing Company and Coulston Drilling Company, the aforesaid reservation was inadvertently omitted from said agreement, and, therefore, the same did not represent the true intention and agreement of the aforesaid parties, and, accordingly, such contract and/or farmout agreement was erroneously drawn as a result of such mutual mistake between the parties thereto.
“3. That plaintiff and cross-defendant LaCoastal Petroleum Corporation paid no consideration whatsoever for either said well or the personal property used or obtained in connection therewith or the leasehold rights and interests covering all of the oil and oil rights under twenty acres in the form of a square surrounding the same, with such well located in the middle thereof as near as practicable. That the said LaCoastal Petroleum Corporation had full knowledge of the fact that it was the intention of the parties to such agreement of April 9, 1962, to incorporate the aforementioned reservation in the said contract and/or farmout agreement, accordingly, it was not an innocent purchaser for value of the rights so intended to be reserved in said contract and farmout agreement by Lone Star Producing Company.
“4. That said contract and farmout agreement dated April 9, 1962 be reformed so as to expressly incorporate therein and be made a part thereof the reservation hereinafter more particularly set out”, and decreed accordingly.

The decree is challenged on 5 points and they are to the effect that the trial court erred: (1 and 2) In holding that the pleadings, depositions, affidavits and exhibits on file establish as a matter of law that there is no genuine issue of fact as to whether there was a mutual mistake made by Lone Star Producing Company and Coulston Drilling Company in drafting the farmout agreement, and that there is no genuine issue of fact as to whether LaCoastal Petroleum Corporation had notice and knowledge of the alleged mutual mistake; (3, 4 and 5) In failing to hold that there was no mutual mistake between Lone Star Producing Company and Coulston Drilling Company in drafting the farmout agreement; and in failing to sustain La-Coastal Petroleum Company’s motion for summary judgment, because there was no mutual mistake made in drafting the farm-out agreement; and in failing to sustain plaintiff’s motion, for the reason that the pleadings, depositions, affidavits and exhibits on file establish as a matter of law that plaintiff is a bona fide purchaser of the lease in question for value. We think we should say at the beginning that we are of the view that the factual situation here is ruled by the pronouncements made by our Supreme Court in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, and Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, and cases there cited. Since all parties filed motions for summary judgment, and the Court having granted appellees’ motions and overruled motion of plaintiff, and since plaintiff has perfected its appeal to our Court it is our duty to determine all questions presented in the trial court. See Tobin v. Garcia, supra.

Plaintiff took and tendered in evidence the deposition of J. L. Toone, who (with the assistance of a Mr. Liles) negotiated this transaction for the Lone Star Producing Company, and the deposition of C. C. Coulston, who negotiated the matter for himself (with the assistance of Bob Ray, his geologist) and doing business as Coulston Drilling Company, and Richard B. Scurlock who negotiated the matter for LaCoastal Petroleum Corporation, and who was President of LaCoastal Petroleum Corporation at all times material to this transaction. (Neither Liles nor Ray testified by deposition). The affidavit filed in behalf of La-Coastal Petroleum Corporation was signed and sworn to by R. A. Graddy, President of LaCoastal Petroleum Corporation at the time the affidavit was signed, but he was not present at any of the conversations or any of the transactions between Coulston and Scurlock before or at the time the farmout agreement was executed. (Grad-dy did not testify by deposition.) So, it is without dispute that Graddy had no personal knowledge of the conversations between these parties leading up to the execution of the farmout agreement, or the making thereof, except that Scurlock did talk to Graddy about the prospect of making this deal with the Coulston Drilling Company (prior to the making) and that Scurlock pointed out the data that he had gained about that well; that he told Graddy at the time of his assumption that the well would be plugged; that he did not say anything to Graddy about the well or any acreage around the well being reserved.

It is clear from Coulston’s deposition that this deal with the Lone Star Producing Company was negotiated by his geologist, Ray, (and a Mr. Liles representing the Lone Star Producing Company) and Ray brought it to his attention. Coulston testified in part, as follows:

“Q. And will you state please what the deal was as he outlined it to you?
“A. Well, we were to get a farm-out of acreage in the Buffalo Field, and he stated to me that there was a producing well on this acreage ánd that Lone Star, their well was more or less a marginal well, at least the way he explained it to me, the way I understood it was a kind of a marginal well, and in working out the farmout if we could go up-structure and possibly drill and get a well up higher and get a gas well, that was our thinking on it.
“Q. Did he mention to you anything with reference to what would happen to that oil well that was on the lease ?
“A. He said the only thing he knew was that they would possibly in the future — no date was ever mentioned to him or anybody else. That well would probably be abandoned if this other well was a commercial well, the one that we drilled.
* * *
“Q. Before the agreement had been been prepared, and you were just discussing the matter with Mr. Ray, did he say anything to you as to how or as to what would happen to this oil well in this deal?
“A. I just stated what he had told me.
“Q. That it would be abandoned?
“A. It would possibly. There was no date set. That was just mentioned. There wasn’t any date set on when the well would be or would definitely be, just possibly be.
“Q. When you executed this farm-out agreement, did you notice that there was nothing in it with reference to this oil well?
“A. Actually I didn’t even think of it at all, because in our oral conversation to me the well had been mentioned, that it wasn’t included in the farmout, and as far as me noticing it wasn’t mentioned in the farmout letter, I don’t remember even noticing that part of it.
“Q. In other words, you are talking now about your conversation with Mr. Ray that he mentioned that the well was not included in the farmout?
“A. Yeah, that’s right.
“Q. You got that from Mr. Ray?
“A. That’s right.
“Q. Did you personally ever talk to anyone at Lone Star about this trade ?
“A. No, I didn’t.
“Q. You handled it completely through Mr. Ray?
“A. That’s right.
“Q. Then in the farmout agreement there’s a statement to the effect that it’s agreeable with Lone Star Producing Company that you assign an interest in this farmout letter agreement to Graddy Petroleum Corporation. Do you recall that?
“A. Yes, sir; I sure do.
“Q. Had you had prior dealings with Graddy Petroleum Corporation about this deal, or had Mr. Ray?
“A. With Dick Scurlock. We never talked directly to Mr. Graddy, no. The only contact we had was with Dick Scurlock.”
* * *
“Q. * * * did you personally deal with Mr. Scurlock, or was that again handled through Mr. Ray?
“A. That was all handled through Mr. Ray.
“Q. You didn’t have any personal dealings with Mr. Scurlock?
“A. I was present in the conversations, yes.
“Q. And were those conversations that you had with Mr. Scurlock before or after this farmout letter was executed ?
“A. Well, I remember we did have a conversation before and possibly after. There was more than one time. I don’t remember too much about just exactly what happened, but there was more than one time we talked on it
“Q. Where did those conversations take place?
“A. In my office.
“Q. And was anything mentioned at that time in those conversations about what was to happen to this oil well?
“A. Yeah, just like I told you while ago, same thing. The well was not included in the deal. The only thing, I assumed that possibly they were going to plug and abandon it. That’s the only thing I could go by that there was a possibility of plugging and abandoning it; just exactly when I didn’t know.
“Q. Was that made known to Scur-lock?
“A. Yes, that was made known to Scurlock.
“Q. And who made it known to him?
“A. Bob Ray.
“Q. Was that in your presence?
“A. That was in my presence, yes.
“Q. Do you recall what he said about that?
“A. No, I don’t recall word for word. In other words, he he had geological information. He showed him the well on the map, and then had a location picked on the map that would probably be a better location. They were talking, and this well would be retained by Lone Star, and there was nothing definite they were going to plug it, but they said they would probably plug that well if we made a commercial well out of the gas well on the other well.
“Q. This is what Lone Star said to Mr. Ray?
“A. That’s what Bob Ray told Dick Scurlock.”

On cross-examination by Lone Star’s ■counsel Coulston testified in part:

“Q. Mr. Coulston, from your testimony here, it appears that — and also from the Plaintiff’s Exhibit 1, this letter, it appears that it was initially your ■understanding that Lone Star would reserve the production, equipment, -salvage, and so forth from this Lone Star Producing Company No. 2, Bryan Estate marginal oil well. Is that correct ?
“A. That’s right.
“Q. Now, actually, insofar as the farmou't agreement was concerned, would you say there was just a mutual mistake between the parties in failing to set out the reservation of that oil well?
“A. That’s the only thing I can— either assume that they had made up their mind to plug and abandon the well, or it was a mistake. Now, I couldn’t swear which. I would have to assume whichever * * * (Emphasis added.)

Counsel for Lone Star did not pursue this inquiry any further, and immediately went to another phase of the case not pertinent here. Plaintiff’s attorney made no attempt to have the witness explain any further his answer: “I would have to assume whichever * * * ”, which appears to be incomplete.

Our view of the foregoing testimony of Coulston is that it shows that at the time he executed the farmout agreement he assumed that the Lone Star well would be plugged and abandoned if the well to be drilled by LaCoastal was a producer. As we understand his testimony he is saying that he assumed that Lone Star had made up its mind to plug and abandon the well, and that is the reason that the farm-out agreement did not contain the reservation, and he likewise says in effect, that if Lone Star had not made up its mind to plug and abandon the well, then it was a mistake to leave it out. And, he said: “Now, I couldn’t swear which. I would have to assume whichever * * * We think it is obvious from the testimony quoted that insofar as the Coulston Drilling Company is concerned the trial court could not determine the question of whether there was a mutual mistake insofar as the Coulston Drilling Company is concerned without weighing the testimony of the witness Coulston, and that it could not do so under the authorities above cited. Coulston’s testimony covers some 22 pages, and we have given it (and this entire record) our most careful consideration, and we are of the view that we cannot honestly say that his testimony is without dispute that he, Coul-ston doing business as the Coulston Drilling Company, made a mutual mistake in accepting the farmout agreement as written. As above stated, we do not think the court could so hold without weighing his evidence. It is true that the Lone Star Producing Company in its pleadings (cross-action) and in its affidavit clearly sets out that it was the intention of the parties that the well and the equipment and the twenty acres were intended to be reserved by Lone Star. The Coulston Drilling Company in its original answer plead only a general denial. In its answer to the cross-action of the Lone Star Producing Company, it specifically plead that LaCoastal Petroleum Corporation knew that the well located upon the lands covered by the farmout agreement were not supposed to be included in said farmout agreement, or in any assignment from Lone Star of the leases. In its motion for summary judgment its specifically stated:

“that cross defendant LaCoastal Petroleum Corporation had full knowledge that the well located on the premises covered by said farmout agreement from Lone Star Producing Company, dated April 9, 1962, was not intended to be conveyed or assigned under the terms of said farmout agreement, even though said farmout agreement did not specifically except said well.”

We find nothing in the motion of the Coul-ston Drilling Company, nor its pleadings, to the effect that it was the intention of the parties that the well, equipment and twenty acres were intended to be reserved by Lone Star. That leads us to say that we are of the view that the pleadings of the parties, as well as the affidavits, tendered an issue of fact as to whether this reservation was so made. The Coulston Drilling Company plead nothing in connection with a reservation of acreage around the well which would enable Lone Star Producing Company to continue the production of oil from the well, and that the failure to include it in the farmout agreement was a mutual mistake. We do think it is without dispute, and the parties admit that neither Coulston Drilling Company nor LaCoastal were to get the well. There is a material difference between these two positions. Lone Star contends in its pleadings that it was to have by way of reservation the well, equipment and twenty acres, which would enable Lone Star to continue production from this well. As above stated, as we understand Coulston’s pleadings and deposition, they are to the effect that the well was not to be transferred to him. Coulston plead nothing in connection with the reservation of acreage around the well which would enable Lone Star to continue production from the well. We have previously quoted the testimony of Coulston as to his understanding, and we think his testimony tenders a fact issue.

Accordingly, we are of the view that the pleadings, depositions, affidavits and exhibits on file in this cause do not establish as a matter of law that there is no genuine issue of fact as to whether there was a mutual mistake made between Lone Star Producing Company and the Coulston Drilling Company in drafting the farmout agreement, and because of such \view appellant’s first point is sustained. That leads us to say that we have made a careful study of the pleadings, depositions, affidavits and exhibits on file in this cause, and we are of the view that the court cannot say that they establish as a matter of law that there is no genuine issue of fact as to whether LaCoastal Petroleum Corporation had notice and knowledge of the alleged mutual mistake, and being of such view appellant’s second point is sustained.

It is our further view (because of the views heretofore expressed) that the trial court did not err in failing to hold as a matter of law that the pleadings, depositions, affidavits and exhibits on file estab-hsh as a matter of law that there was no mutual mistake between the Lone Star Producing Company and Coulston Drilling Company in drafting the farmout agreement, because the court could not do so without weighing all of the evidence tendered and, accordingly, appellant’s third and fourth points are overruled.

It likewise follows that because of the views heretofore expressed, the trial court could not reach the question as to whether LaCoastal Petroleum Corporation is a bona fide purchaser of the lease in question for value and appellant’s fifth point is overruled.

After a careful study of this entire record, it is our view that issues of fact are indicated by the record, and for that reason we refrain from further discussion of the record, and particularly the testimony tendered by the depositions and exhibits. Under the cases hereinbefore cited, this cause is reversed and remanded for trial on the merits. Reversed and remanded.


author: FANNING, Justice.

text:
    Elizabeth Ann SCHNEIDER, a feme sole, Appellant, v. COOK BOOK BAKERS, INC., et al., Appellees.
    No. 7529.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 29, 1963.
    Fred L. Gardner, Pratt & Gardner, Fred A. Collins, Collins & Moore, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellees.
   FANNING, Justice.

Elizabeth Ann Schneider, a feme sole, •sued Cook Book Bakers, Inc. and its em•ployee, Horace Creed Wade for damages for personal injuries allegedly sustained as a result of a “changing lanes” collision between her automobile and the truck of defendant corporation driven by its employee, defendant Wade.

Sixteen special issues were submitted to a jury. The jury’s responses to such issues were in effect as follows: (1) that just before the collision in question Horace Wade turned the Cook Book Bakery truck into the right lane at a time when such movement could not be made in safety, but (2) the same was not negligence, (3), the ■conditionally submitted proximate cause issue with reference to issues 1 and 2 was not answered, (4) that Wade did not fail to keep a proper lookout, etc. (5) conditionally submitted issue No. 5 on proximate cause was not answered, (6) that Elizabeth Ann Schneider did not fail to keep a proper lookout, etc. (7) conditionally submitted issue on proximate cause was not answered, (8) -that Elizabeth Ann Schneider failed to ■make proper application of her brakes but (9) that the same was not a proximate cause ■of the collision in question, (10) that Elizabeth Ann Schneider was not operating her automobile at excessive speed, etc., and (11) the proximate cause issue was not answered, (12) that Elizabeth Ann Schneider did not sustain any injuries in the accident, and ■conditionally submitted issues 13, 14, 15 and 16 relating to damages were not answered. A “take nothing” judgment was rendered ■against plaintiff and she has appealed.

Appellant on appeal presents four points wherein she contends to the effect that there is no evidence to support the jury’s answers to special issues Nos. 2, 4 and 12, and that the negative answers of the jury to special issues Nos. 2, 4 and 12, and the consequent failure of the jury to affirmatively answer special issues Nos. 3 and 5, and the consequent failure to answer special issues Nos. 13, 14, 15 and 16, are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

For a comprehensive discussion of the principles of law applicable to the determination of such character of points see Chief Justice Calvert’s article, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error”, 38 Tex.Law Rev., No. 4, p. 361.

The daytime collision in question occurred on Jan. 13, 1959, in Houston, Texas. Plaintiff-appellant was driving a small foreign automobile which she testified was “too low”. The baking company truck driven by Wade was a large truck about two cars in. length and had rear view mirrors which could observe small cars like plaintiff’s from 10 feet back or farther — there was testimony from Wade that he could not see a small car like plaintiff’s or a bicycle if it was “right along side of me”, but could see cars of normal size that near to him. Wade stated that he was leaving the inside lane of traffic because of the fact that a vehicle just ahead of him was slowing down to make an apparent left hand turn. Plaintiff-appellant in the trial testified to the effect that Wade had started over into the lane once, that she honked her horn, and he went back — (Wade denied this) — and that Wade then came over in her lane the second time. This version by plaintiff was given for the first time in the trial and was not given in her deposition taken before the trial. The witness Hardy gave evidence partly favorable to Miss Schneider and partly favorable to Wade and the baking company. Hardy corroborated Miss Schneider with reference to the “honking” which Wade denied hearing — however it appears from Hardy’s further testimony that plaintiff-appellant was accelerating and attempting to pass Wade’s truck on the right at the time of the accident.

Wade, in describing generally how the accident occurred, testified to the effect that when his traffic light at Alameda and Holcomb turned green, he started across; that he looked in his rear view mirror on both sides and saw Hardy’s truck behind him, that then, a Buick in front of him, which had been slowing up, apparently to make a left turn, made a signal to make a left turn, and Wade again looked in his rear view mirror on both sides to see if anything was coming, and saw nothing, he then started gradually pulling over into the right hand lane, until he realized he had bumped into something with the end of his front bumper. Wade further testified that he did not hear any horn blow before this accident but did see appellant’s small car come spinning out in front of him after this accident.

Wade further testified that after the accident happened, he inquired of the plaintiff-appellant whether she was injured, and she stated that she was not.

The damages to plaintiff’s automobile were of a minor nature; the repair bill was $190.75 and the intervenor insurance company which paid the bill sought judgment for $200.00 in their plea of intervention.

The evidence also shows that plaintiff-appellant, who was a nurse, lost no wages and that her wages increased after her accident. Prior to the collision in question she had had a back operation. If her trial testimony and the testimony of her doctors had been fully believed by the jury, a verdict for some amount of damages would have been authorized. However even from her trial testimony and the testimony of her doctors it was apparent that if she had been injured at all, it was not of any great consequence. However under her earlier statement to the effect that she had not been injured, (according to Wade’s testimony earlier referred to) the jury could have believed that she made this statement and determined from this evidence and other circumstances in the case that she was not injured.

In Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, it was stated in part as follows:

“In a case of this character, standards of ordinary care such as the direction and extent of the observation which Mrs. Ricketts should have made at any particular time cannot be fixed with any degree of certainty but must be left in large measure to the trier of fact* It is well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. See English v. Miller, Tex.Civ.App., 43 S.W.2d 642 (wr. ref.); Henry v. Publix Theatres Corp., Tex.Civ. App., 25 S.W.2d 695 (wr. ref.). The-jury is thus not only the judge of the-facts and circumstances proven but-may also draw reasonable inferences, and deductions from the evidence adduced before it.”

As we analyze the testimony we reach these preliminary conclusions: Under plaintiff-appellant’s testimony the jury, if they fully believed such testimony, could have convicted defendants of negligence- and answered the negligence and proximate-cause issues against defendants. Under Wade’s evidence, if believed, the jury could,, as they did, find for defendants on the liability issues. The testimony of the witness-Hardy, as above referred to, was partly favorable to plaintiff and partly favorable-to defendants, and his testimony was a matter for the jury to weigh, evaluate, and reconcile as they in the proper exercise of their jury function saw proper. As we view it,, the evidence on the liability issues as well' as on the issue as to whether plaintiff was-injured, was conflicting.

The determination of a “no evidence-question” is a matter of law and in determining this question the court will consider only that evidence, if any, which viewed in its most favorable light, supports, the jury’s findings, and will disregard all evidence which would lead to a contrary-result. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359.

We hold that there was evidence-of probative force to support the jury’s. 'findings to special issues 2, 4 and 12. Appellant’s 4th point is overruled.

After carefully considering the entire record in this cause in the light of the rules announced in the case of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, it is •our view that the jury’s verdict is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Appellant’s 1st, 2nd and 3rd points are overruled.

The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    Joe BALLANFONTE et al., Appellants, v. Kay KIMBELL et al., Appellees (two cases).
    Nos. 16460, 16461.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 1, 1963.
    Rehearing Denied Dec. 6, 1963.

      Sullivant, West & Meurer and Carroll F. Sullivant, Gainesville, and Charles E. Crenshaw, Austin, for appellants.
    Henderson & Bryant and William R. Bryant, Sherman, for appellees.
   MASSEY, Chief Justice.

Though not companion to one another, these cases present a common question determinative of our disposition on appeal. The parties are substantially, though not entirely, the same. The subject matter, leases for oil, gas or other minerals, is the same, although upon two different leasehold estates.

The common question is whéther, under existent circumstances, the lessors are entitled to have judgment declaring that the leases be canceled and the leasehold estates of the lessees forfeited because the oil production therefrom has ceased. Lessors, as plaintiffs, contend that there had been such a production failure over such a lengthy period of time as to effect cancellation of the leases, in that the oil recovered therefrom was in less than “paying quantities ”.

“Paying quantities” of oil from an oil well has ceased if, in the manner of its operation, it no longer yields a profit to the operator. If it is the only well, the lease on which it is situated has ceased to produce “in paying quantities”. Garcia v. King, 1942, 139 Tex. 578, 164 S.W.2d 509.

“Paying quantities” is a profit, even small, over operating expenses. Whether production is “in paying quantities” is determined by ascertaining whether or not, under all relevant circumstances, a reasonably prudent operator would continue to operate a well in the manner in which it is being operated for the purpose of making a profit and not merely for speculation. Clifton v. Koontz, 1959, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774.

In the case of a marginal well, where-production is diminishing, the oil in the reservoir from which it is extracted by means of pump or siphon oftentimes sinks, below a level at which the extraction is practical. For days, or even weeks, it may be economically practical to cease the-process of extraction in order to allow seepage of the oil into the reservoir so that its level is raised and the efficiency of a resumed extraction process increased. It cannot be said that there is any production, or production “in paying quantities”, during these days or weeks and it could properly be said that such had ceased. That is-the case according to grammatical rules. The question, however, is resolved by legal rather than grammatical rules. Hence, the “reasonably prudent operator” test referred to in Clifton v. Koontz.

But what about a more extended' period running into months or years? At what point has a well or lease ceased to. produce “in paying quantities” as a matter of law according to mathematical calculation, and over how long a period is the-mathematical calculation properly considered? The Supreme Court, in Clifton v. Koontz, supra (325 S.W.2d p. 690), saidr “ * * * there can be no limit as to time,, whether it be days, weeks, or months, to betaken into consideration in determining the-question of whether paying production; from the lease has ceased.” We consider ourselves bound thereby.

Lessors who seek to obtain a judgment that a lease is canceled for cessation, of production because it has become less-than “in paying quantities” are obliged to-prove not only that the production is such that the lessees are not making a profit from operations devoted to production, but furthermore that a reasonably prudent operator would not have continued under the circumstances in the attempts devoted to obtaining such production. Skelly Oil Company v. Archer, 1961, 163 Tex. 336, 356 S.W.2d 774, 783. From this opinion it is inferred (356 S.W.2d p. 783) that there -may be instances in which, as a matter of law, an operating lessee is not making a ;profit from activities instituted to obtain production, but that nevertheless the fact question persists as to whether a reasonably prudent operator would have continued such activities under existent circumstances.

As applied to one of the leases the plaintiffs, appellants herein, selected a period of thirteen (13) months (following the •expiration of the primary term of such lease on February 22, 1953), being for such period ending May 31, 1961. As applied ,to the other lease they selected a period of thirteen (13) months (following the expiration of the primary term of the lease on January 26, 1954), being for such period prior to May 1, 1961.

Such period, thirteen months, plaintiffs obviously believed was a sufficient limit as to time necessary to be taken into consideration by the trial court, sitting as the trier of fact as well as the law, in determining the question of whether paying production from the leases, or from either ■of them, had ceased. Certainly this period would have been sufficient had the trial court agreed with plaintiffs (as to either or both leases) that there had been a cessation of production “in paying quantities”.

But the trial court, sitting as the trier of fact, either did not believe the period was long enough to satisfy it that there had been such degree of cessation or it did not believe the evidence preponderated to show that production “in paying quantities” had •ceased. Of course, under the case of Skel-íy Oil Company v. Archer, supra, the trial court might have been satisfied that the period selected was of sufficient duration and paying production had indeed ceased,— but that the plaintiffs should not recover because the court nevertheless was of the opinion plaintiffs had failed to establish, preponderantly, that a reasonably prudent operator, under the same or similar circumstances, would not have continued his activities. We cannot be certain of the factual conclusions in the cases under examination since there are no findings of fact and conclusions of law. We recognize that in this type of case a plaintiff who fails to obtain a decree of lease forfeiture in the trial court confronts an insurmountable obstacle, or one nearly such, when he carries an appeal therefrom into the appellate courts.

We have examined the records in both cases. Disregarding the fact question existent as to whether a reasonably prudent operator would have continued his activities directed toward realizing production from either or both the leases and the wells thereon, we are of the opinion that the preliminary questions of whether the defendants were making a profit, during the thirteen month periods plaintiffs chose to use as a base upon which their proof was founded, were resolvable as matters of fact, — not established as matters of law,— and the trial court was entitled to find and conclude that the defendants made a profit on each well and lease during that period. Further, the trial court was at liberty to conclude that thirteen months was not a period of sufficient length, in view of the evidence on profit and loss, to compel its finding and conclusion that the defendants were not making a profit. It must be remembered that the plaintiffs were carrying the burden of proof upon this as upon other material ultimate issues of fact, and that a refusal to find for the plaintiffs, not a finding made for the defendants, is the action under examination.

Judgments in both cases are affirmed.


author: CHAPMAN, Justice.

text:
    J. B. MARION d/b/a J. B. Marion & Company, Appellants, v. J. E. LAYTON et al., Appellees.
    No. 7291.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 28, 1963.
    Rehearing Denied Dec. 2, 1963.
    Edward W. Napier, Lubbock, for appellants.
    Huff & Bowers, Lubbock, for appellees.
   CHAPMAN, Justice.

J. E. Layton, R. H. Layton, and J. W.. Layton instituted this suit against J. B. Marion d/b/a J. B. Marion & Company for breach of a written contract to buy all the cotton produced on the land described in the-contract at the rate of 30$ per pound for the-1961 crop year. The purchaser accepted 143 bales pursuant to the contract then refused to accept any more, thus rejecting the 150’ bales constituting the basis for this law suit. Those 150 bales were later sold by appellees-Layton for $2,237.10 less than the contract price.

Upon a trial to the jury, with answers favorable ot the Laytons, judgment was rendered for the amount just stated plus 6 per cent interest from December 20, 1961. It is from such judgment appeal is perfected to this court upon two points.

The first point is to the effect that where a defendant purchaser breaches a contract to purchase cotton and the plaintiff seller elects to sue for the difference between the contract price and the value of the cotton, the burden is upon plaintiff to prove and secure a jury finding as to the fair market value of such cotton at the time of breach at the place of delivery.

The court asked the jury to find from a •preponderance of the evidence if the Lay-tons exercised ordinary care to sell the 150 bales of cotton for a fair market value. 'They answered “Yes.”

Thus the attack on the judgment as revealed in the argument in the brief was based upon a contention of an incorrectly submitted issue, inter alia, that the issue was duplicitous. It is unnecessary in this reb-ord for us to pass upon the correctness' of the issue because the question of its correctness was not properly raised upon the motion for new trial. Rules 320, 321, 322, and 374, Vernon’s Annotated Texas Rules; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887.

The other point raised was with respect to the interest allowed by the court. The court allowed interest from December 20, 1961, to the date of the judgment. The last of the rejected cotton was not sold until January 22, 1962, so it was error for the court to allow interest from December 20, 1961.

Once the breach of contract was determined the demand became liquidated. Our Supreme Court has held that “ * * * in all cases where the measure of recovery is fixed by the conditions existing at the time that the injury is inflicted the person entitled to recover has also the right to have compensation for the detention of the money to which he is entitled by reason of the wrong done to him.” Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 504, 44 A.L.R. 627. See also Taylor-Link Oil Co. v. Anderson, Tex.Civ.App., 92 S.W.2d 499 (error dismissed); Cresswell v. Dixie Co., Tex.Civ.App., 6 S.W.2d 380 (error dismissed); Phillips v. Jones, Tex.Civ.App., 283 S.W. 298; Western Union Telegraph Co. v. Eckhardt, 11 S.W.2d 777 (Com.App.).

In the last cited case, though interest was not allowed because the maximum amount for which the company could be liable was limited, the court held: “The parties to this contract will be presumed to have known at the time it was entered into that it was the settled policy of the courts of this state, in case of a breach thereof, to allow interest from the date of the accrual of the cause of action as a part of the damages.” The complete cause of action here could not have accrued until the cotton was sold for less than the contract price.

Appellees by counterpoint urge that a 10 per cent penalty should be assessed against appellant for frivolous appeal. Neither the brief nor the Statement of Facts sustain that contention.

Accordingly, the judgment of the trial court is reformed so as to make the interest start running from January 22, 1962, and as reformed the judgment is affirmed.


text:
    Krimm WELSCH, Appellant, v. SOUTH TEXAS CONSTRUCTION COMPANY, Appellee.
    No. 4177.
    Court of Civil Appeals of Texas. Waco.
    Nov. 21, 1963.
    Rehearing Denied Dec. 12, 1963.

      Thornton & Hosey, Galveston, Ted Dun-nam, Davant & Fricke, Port Lavaca, for appellant.
    Guittard & Henderson, Victoria, Howard Hartzog, Port Lavaca, for appellee.
   TIREY, Justice.

Plaintiff grounded his cause of action for damages on the alleged negligence of the-South Texas Construction Company because-of its failure to construct and maintain certain warning, detour and safety signs on. Highway #35 which was under construction, near Point Comfort, Texas. The Court overruled South Texas Construction Company’s motion for instructed verdict and; submitted the cause to the jury on 26 issues. Some of the issues were answered favorably to plaintiff, and the jury found that plaintiff" had sustained damages for his own injuries-in the sum of $21,700.00, and that he sustained further damages for the death of his-wife in the sum of $13,000.00. However, the-jury found that in answer to issue 13 that plaintiff failed to keep such a lookout at the time of and on the occasion in question, as would have been kept by a person of ordinary prudence in the exercise of ordinary care in the same or similar circumstances, and further found in answer to. issue 14 that such failure was a proximate-cause of the collision. The jury further-found in answer to issue 19, that just prior to the collision Welsch changed the course-of his automobile without first seeing that there was sufficient space for such movement to be made in safety and, in issue 20, found that such failure was negligence, and; further found that such negligence was the-proximate cause of the collision. The court granted South Texas Construction Company’s motion for judgment and plaintiff" seasonably filed his motion for new trial,, which was overruled, and he gave notice of appeal to the San Antonio Court and the-case is here on transfer.

The judgment is assailed on two points.. They are substantially to the effect that the-Court erred: (1) In failing to hold that there was an entire lack of evidence to show that plaintiff was contributorily negligent in his failure to keep a proper lookout and,, in the alternative, that such holding of negligence and proximate cause is against the-great weight and preponderance of the evidence; (2) That the trial court erred in failing to grant a new trial because of jury-misconduct.

Plaintiff’s counsel, in oral argument, stated substantially that he was of the view that point 2 relating to misconduct was controlling. He devoted most of his oral argument in discussing this point, and we shall do likewise. (Perhaps we should state that appellant did not in any sense waive his point 1 and devoted the last part of his argument to it).

In order to understand appellant’s contention about jury misconduct, it is necessary to make a statement concerning the accident and the litigation that resulted therefrom. Krimm Welsch, an employee of Reynolds Aluminum Company at Corpus Christi, got off from work at 4:30 P.M., on October 6, 1961, and left shortly thereafter for the John Sealy Hospital at Galveston for the purpose of bringing his wife home. He went to Galveston via Port Lavaca on Highway #35, and arrived at the hospital about 9 P.M., and “picked-up” his wife, purchased gas, and began his return trip to Corpus Christi on the same route he had previously traveled and arrived at the detour area at Point Comfort about 11:30 P. M. In the early evening a football game had been in progress between ElCampo High and Port Lavaca High Schools, and attending this game were Robert E. Rasmussen and wife, and Emil Olsen and wife of ElCampo, who had driven over to Port Lavaca in the Rasmussen car. The Ras-mussens and their guests were on their way back to ElCampo after the game. As the Welsch car came almost off the detour at Point Comfort the Rasmussen car and the Welsch car were involved in a collision because the Welsch car missed the detour turn and a head-on collision occurred. As a result of this collision Mr. and Mrs. Olsen and Mrs. Welsch were killed and Mr. and Mrs. Rasmussen and Mr. Welsch each were injured. In October 1961, Rasmussen and his wife filed their original petition for damages in the District Court of Calhoun County, seeking recovery on account of their injuries, as well as next friends of the two minor Olsen children for the death of their parents against South Texas Construction Company and Welsch, as co-defendants. Welsch filed his original answer and later filed an amended answer and cross-action against South Texas Construction Company in his own behalf and others, not pertinent here. This action on behalf of Rasmussens and the action on behalf of the other co-plaintiffs pass out of the case by virtue of settlement and compromise and the action as to them needs no further explanation.

Welsch’s action against his co-defendant, South Texas Construction Company, went to trial on Welsch’s second amended original answer and cross-action, and pertinent to this discussion he alleged substantially that on October 6, 1961, while he was accompanied by his wife and was driving on highway #35, that he approached Point Comfort and entered the section of the highway that was under construction; that as he entered such area he reduced his speed to approximately 35 miles per hour and drove cautiously; that he was driving his car with the headlights on “dim” and that there was and had been unusually heavy traffic on the highway. At various intervals within the construction area and on his right-hand side of the highway, the shoulders had been dug away and were not clearly defined because of inadequate lighting and poor warning signs; that as they proceeded some distance from the railroad tracks he could see a poorly lighted barrier in front of him which extended from one side of the highway to the other; that the broken white center stripe continued along the highway in front of them into the barrier, and as he drew closer to the barrier he was finally able to discern two rusty, dim and obscure signs on the barrier detour, and an arrow pointing to his right; that as soon as he was able to determine the instructions given by the signs, he immediately began to make his right-hand turn into the detour road when, suddenly, he was confronted with the lights of the Rasmussen car approaching him on a head-on collision course; that he slammed on his brakes, but in spite thereof the head-on collision occurred, and as a direct and proximate result of the collision his wife was killed, and he suffered severe and lasting injuries; that at the point of the collision his co-defendant negligently failed to provide sufficient, adequate and proper warnings to re-route the travelers of the highway into and upon the hazardous, dangerous and uncertain detour, and as a direct result the head-on collision occurred. He alleged specifically 16 different acts of negligence on the part of his co-defendant.

The South Texas Construction Company went to trial on its third amended original answer in which it entered a general denial, and further specially plead that Welsch was guilty of contributory negligence in 15 different particulars. Pertinent to this discussion the allegations are to the effect that Welsch failed to keep such a lookout at the time and on the occasion in question as would have been kept by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances, and that such failure was a proximate cause of the collision and the injuries he complained of; and further, plead that just prior to the collision Welsch changed the course of his automobile without first seeing that there was sufficient space for such movement to be made in safety, and that such failure was negligence and a proximate cause of the collision and resulting injuries complained of. We have previously stated that the jury answered the foregoing allegations favorable to the South Texas Construction Company and that it was on such answers that the Court entered judgment in behalf of the Construction Company and a take-nothing judgment against Welsch.

Welsch in his motion for new trial and with reference to misconduct of the jury, specifically alleged:

“(d) That the jury, in its deliberations, had not answered any of the contributory negligence, issues or proximate cause issues relating to plaintiff, Krimm Welsch, during the first day of the deliberations, but, in fact, had had a great deal of argument concerning the same; that on the morning of the 26th day of January 1963, one of the jurors made the following statement, or words to that effect:
‘Well, if Krimm Welsch was not negligent and if his negligence was not the proximate cause of the collision, why did he pay so much money to the Ras-mussens and the Olsens? It would seem to me that he was bound to be negligent because he did pay so much money in settlement to the Rasmussens and the Olsens.’ ”

As we understand appellant’s brief it is his contention that the foregoing statement made by one of the jurors influenced some of the other jurors who believed Welsch was not negligent in any respect to cast their vote that Welsch was negligent, and that his negligence was a proximate cause of the collision.

On motion for new trial appellant tendered Mrs. Freeze, a juror, and W. S. Duke, a juror, to substantiate his allegations of jury misconduct, and the appellee called jurors, Lawrence Webb, and James L. Patterson, to sustain its contention that there was no jury misconduct, and the testimony of these four witnesses is before us in question and answer form. It appears from the record that this cause went to trial on Monday, January 21, and the Court’s charge was read to the jury on Friday, January 25, and the jury began its deliberations on that day. Mrs. Freeze testified to the effect that she heard the evidence, and that the jury had some difficulty in arriving at its decision, and that on Friday while considering the verdict she was of the view that Welsch was not negligent, and that his negligence was not a proximate cause of the accident. She further testified to the effect that thereafter during the jury deliberations that the juror, Lawrence Webb, sometime Saturday before the verdict was returned, said:

“Well, he said that if Welsch wasn’t at fault or wrong, well, why did the insurance settle with Rasmussen,”

and that on that statement she changed her vote and voted that Welsch was negligent. She further testified to the effect that juror Webb was sitting at the head of the table and to her right when he made the statement, and further testified:

“Q. In the jury room didn’t somebody speak up after Webb had made that statement and said you were not supposed to consider that?
“A. I did. I made one of them. I was one of them that told them not to say it; that it shouldn’t have been said.
“Q. And you told the other jurors you weren’t supposed to consider that?
“A. No, I just told Mr. Webb that; that it was not in evidence.”

The juror Duke, testified to the effect that while the jury was considering this cause on Friday, that he voted that Welsch was not negligent, but on Saturday following after the statement by Webb, he said:

“Well, I believe it was Saturday morning. The statement that he made was approximately this: I couldn’t tell you word for word, but that if Krimm Welsch hadn’t been negligent or had been the proximate cause of the collision, then how come his Insurance Company had paid off Rasmussen and the other party, Olsen, I believe is what he said.”

The juror, Lawrence Webb, testified to the effect that he made no such statement attributed to him by Mrs. Freeze or the juror Duke, and that the first time that he learned that Welsch had made a settlement or someone had made a settlement for him, was on Friday before he was called to testify on this motion (which was some weeks after the trial) and that this information came to him over the telephone from Judge Hartzog. He testified specifically that he did not make any such statement or statements in the jury room to the effect that Welsch or somebody for him had made a settlement and that he did not hear anybody make a statement in the jury room that Welsch or somebody for him had made a settlement. James L. Patterson, a juror, testified to the effect that he was foreman of the jury in this cause and that during the deliberations of the jury he did not hear Webb make a statement to the effect that Welsch must have been negligent or his insurance company would not have made a settlement with the Rasmussens. He said: “I do not remember Mr. Webb saying anything in that order.”

“Q. Well, do you remember any statement by Mr. Webb about a settlement by Welsch himself?
“A. No, sir, I do not remember any statement. I am positive that there was lots said in there. I don’t remember any such statement made by Mr. Webb. I am positive that it never became an issue or discussion of the panel.”

We have carefully considered the testimony of the foregoing four jurors who-testified in this behalf. Their testimony covers some 49 pages, and after a careful consideration we are of the view that it presents solely a question of conflict on the facts as to what happened during the jury’s deliberations. Under the rules governing our practice it was the duty of the trial court to decide this conflict. When the parties rested the trial court overruled appellant’s motion for new trial. In so doing he impliedly found that there was no misconduct. Surely he was in a better position than we are to pass upon this factual situation; however, we are in complete accord with the trial court’s view. For a statement of the rule see Younger Brothers, Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546, pt. 6. See also Texas Digest, Appeal and Error, (5). Accordingly, appellant’s point 2 is overruled.

Going back to appellant’s point 1, we have read very carefully the testimony in this cause and we are of the view that the evidence is ample to support the jury verdict that Welsch failed to keep a proper lookout on the occasion in question, and that such failure was a proximate cause of the collision. And we are of the further view that the evidence is ample to sustain the jury findings that Welsch changed the course of his automobile just prior to the collision without first seeing that there was sufficient space for such movement to be made in safety, and that such movement was negligence and a proximate cause of the collision. That leads us to say that it is our view that the jury’s findings on contributory negligence are not without probative value, and we are of the further view that the answers of the jury as to contributory negligence are not so against the great weight and preponderance of the evidence as to be manifestly unjust under the doctrine announced In re King’s Estate, 150 Tex. 662, 244 S.W.2d 460. We are of the further view that a detailed discussion of the evidence relating to contributory negligence of Welsch would be of no prece-dential value and would unduly extend this opinion. See Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273. Accordingly, appellant’s point 1 is overruled.

The judgment of the trial court is affirmed.