text:
    Robert Chester GALLOWAY, Appellant, v. The STATE of Texas, Appellee.
    No. 40604.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1967.
    Rehearing Denied Dec. 6, 1967.

      Marks, Time & Aranson, by Fred Time, Dallas, for appellant.
    Henry Wade, Dist. Atty., Tom Reese, Charles Caperton and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is murder with malice; the punishment assessed by the jury, twenty (20) years confinement in the Texas Department of Corrections.

On Saturday evening, November 20, 1965, Bernie Miles (the deceased), Maurice Thornton, Chester Wilson, and Annie Pearson were sitting at a table near the stage in Delmonico’s, a Dallas nightclub. Near closing time appellant and one Acres-ton Henry (“Sixteen”) and others began the performance of the last floor show with “Sixteen” playing the part of a woman. When “Sixteen” appeared in a dress the deceased pulled him from the stage, whirled him around, and lifted him back on the stage saying, “Hey, man, look at these punks.” “Sixteen” then draped his skirts over the deceased’s head. Appellant told the deceased to “knock it off” and several words, remarks, etc., were exchanged, and finally the show was forced to halt because of the disturbance and the closing time. There was testimony that during the floor show a man called “Greasy” (Azzie Sullivan) handed appellant a gun, which was being used in the comedy act, and that appellant took the blank shells out of the gun. At approximately 1:15 a. m., November 21, 1965, Maurice Thornton, Chester Wilson, and Annie Pearson left the club followed by Bernie Miles, the deceased. The details of what occurred outside are conflicting; however, the evidence is uncontroverted that appellant struck the deceased on the head with the pistol and shortly thereafter shot the deceased, who died soon after his arrival at Parkland Hospital.

Appellant initially urges that as a result of a previous trial, he was placed in jeopardy when he was re-tried in violation of Article V, U. S. Constitution, and Article I, Section 14, Texas Constitution, Vernon’s Ann.St.

Normally, the defense of former jeopardy must be specially pleaded, 16 Tex. Jur.2d, Sec. 321, p. 500, and the burden of proof is on the accused to establish a plea of jeopardy. Skelton v. State, 110 Tex.Cr.R. 621, 10 S.W.2d 554. We do not find that appellant filed and presented to the court a written plea of former jeopardy as required by Articles 27.05 and 27.06, Vernon’s Ann.C.C.P.

Even if it be appellant’s contention that no formal plea is necessary where the former proceedings are in the same case, there is no showing in the record that appellant offered evidence in support of his plea, and thus he waived any right he had to a jury finding on whether his plea of former jeopardy was true. Villarreal v. State, 172 Tex.Cr.R. 213, 355 S.W.2d 516.

The first mention of such issue appears to have been made in appellant’s Second Amended Motion for New Trial filed in the trial court. If evidence were presented in connection with said motion, it does not appear in the record. In Watson v. State, 162 Tex.Cr.R. 156, 282 S.W.2d 715, this Court held that former jeopardy must be pleaded before the trial and cannot be raised for the first time on Motion for New Trial.

Appellant has attached an affidavit to his supplemental brief on appeal filed in the trial court, stating that on May 25, 1966, he was placed on trial for murder in the Criminal District Court of Dallas County; that the jury found him guilty of murder without malice, but that the jury after three hours of deliberation at the penalty stage of the proceedings was unable to agree upon punishment and was discharged by the court, with consent of appellant’s counsel; that appellant did not personally consent to such discharge.

Nothing in the said affidavit nor the allegations in the Second Amended Motion for New Trial reflect that the previous trial was upon the same accusation as in the case at bar. If a previous trial were had upon this indictment, the charges of the court, the verdict of the jury, etc., do not appear as a part of the record, nor do we find any request for the inclusion of the same in the record. Article 40.09, Sections 1 and 2, V.A.C.C.P.

For the reasons stated above, the question of former jeopardy or conviction is not before this Court. Hill v. State, Tex.Cr.App., 398 S.W.2d 944; Villarreal v. State, supra.

In his second ground of error appellant complains that the trial court erred in denying his pretrial motion to reduce the offense from murder with malice to murder without malice, contending that the verdict upon appellant’s alleged first trial where he was adjudged guilty of murder without malice should be considered an acquittal of the higher offense of murder with malice and that, therefore, appellant could not be convicted of any greater offense than murder without malice. Appellant cites Article 37.14, V.A.C.C.P. (1965) in support of this contention.

The record does not reflect the referred to verdict or any instruments or evidence showing that appellant had been previously adjudged guilty of murder without malice on this same accusation. Therefore, the question is not before this Court for consideration. Even if the question were before this Court and assuming the truth of appellant’s allegations (see discussion under appellant’s ground of error No. 1) that a previous jury was discharged and a mistrial declared before punishment was assessed, the conclusion is inescapable that no final verdict of murder without malice was adjudged against appellant. Article 37.07(2) (d), V.A.C.C.P.

This article states:

“In cases where the matter of punishment is referred to the jury, the verdict shall not be complete until the jury has rendered a verdict both on the guilt or innocence of the defendant and the amount of punishment, where the jury finds the defendant guilty. In the event the jury shall fail to agree, a mistrial shall be declared, the jury discharged, and no jeopardy shall attach.”

It is also observed that an accused is not twice put in jeopardy within the meaning of the Fifth Amendment when he is tried a second time after the jury impaneled for his first trial was discharged for its failure to agree on a verdict. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100; Gilmore v. United States, 264 F.2d 44 (5th Cir.), cert. den. 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982, reh. den. 360 U.S. 914, 79 S.Ct. 1298, 3 L.Ed.2d 1264. Further, this Court has long held that murder without malice is not a lesser included offense of murder. Lopez v. State, 162 Tex.Cr.R. 454, 286 S.W.2d 424; Hall v. State, 145 Tex.Cr.R. 192, 167 S.W.2d 532; Mosley v. State, 149 Tex.Cr.App. 523, 196 S.W.2d 822. The statute (Article 1256, V.A.P.C.) provides different punishments for murder with and without malice aforethought, but does not create two offenses, only the single offense of murder. See 29 Tex.Jur.2d, Homicide, Sec. 77, pp. 83, 84.

In his third ground of error appellant contends that the trial court erred in admitting into evidence over objection a .22 caliber pistol which was the product of an illegal search and seizure.

B. W. Pope, a Dallas city policeman, testified that he and two other officers accompanied by “Sixteen” and “Greasy” went to appellant’s residence at 1:30 p. m. on the afternoon following the shooting. Officer Pope observed appellant backing his automobile into the street. Pope identified himself and inquired of the appellant where the pistol was he had used in the shooting the night before. Appellant replied that it was in his house, and he invited the officers to come with him while he got it. Appellant and the officers went into appellant’s house, and appellant handed to the officers the pistol and ammunition that he removed from the headboard of a bed. The appellant was subsequently arrested. Such testimony is undisputed.

In view of such facts, we overrule appellant’s contention that the pistol was procured as a result of an unlawful search of appellant’s home. Hinkley v. State, Tex.Cr.App., 389 S.W.2d 667.

In his final ground of error appellant complains that the trial court erred in overruling appellant’s Second Amended Motion for New Trial in the absence of appellant.

The record shows that the appellant was present during the trial, and there is no evidence reflecting his absence at any time. The presumption is that he was present during the whole trial. See Article 33.03, V.A.C.C.P. The order overruling the appellant’s Motion for New Trial expressly recites that the appellant and his counsel were personally present in court at the time. After notice of completion of the record by the clerk, there was no objection made to the same or any request for a hearing to correct the record. See Article 40.09, Sec. 7, V.A.C.C.P. Appellant’s affidavit to the effect that he was not present at the hearing on the said Motion for New Trial attached to a supplemental brief on appeal filed in the trial court after the approval of the record is not sufficient to overcome the express recitation of the order overruling the Motion for New Trial and the presumption of appellant’s presence. Appellant’s contention is overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: ONION, Judge.

license: Public Domain

text:
    Marcus Denison BECK, Appellant, v. The STATE of Texas, Appellee.
    No. 40783.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1967.

      H. Edward Johnson, Fort Worth (Court Appointed), for appellant.
    Frank Coffey, Dist. Atty., Jack Neal and Roland H. Hill, Jr., Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Burglary with Intent to Commit Theft; the punishment, enhanced under the provisions of Article 62, Vernon’s Ann.P.C., twelve (12) years confinement in the Texas Department of Corrections.

Appellant vigorously challenges the sufficiency of the evidence to sustain his conviction.

The record reflects that the office of the Hobbs Trailer Company in the City of Ft. Worth was broken into and entered on Sunday evening, October 9, 1966, sometime after 6 p. m. A cigarette machine in such building was broken into and it was estimated that approximately $70.00 to $80.00 in quarters, nickels and dimes was taken therefrom; a brown leather bag with “Hobbs” written thereon was also removed from the premises.

On October 9, 1966, at approximately S :30 p. m. while on his way home, Ben Hamrick, a trucking company operator and a former employer of the appellant, saw him on the North Main viaduct in Ft. Worth. Some forty-five minutes later Hamrick, becoming concerned about his trucks and recent thefts therefrom, returned to the scene and observed appellant in the 700 block of North Main near the burglarized premises carrying a brown leather bag.

Upon stopping the appellant, Hamrick observed the bag appellant had in his possession was marked with the name “Hobbs.” When Hamrick inquired of appellant if he had been stealing, the appellant admitted that he had, but denied stealing from Hamrick. Appellant left the scene when Hamrick sought to detain him until the police were called. When appellant reached the front of his former employer’s nearby premises, Hamrick, who had gone around the building, struck him with a billy club causing appellant’s head to bleed profusely. Appellant then ran, a nearby car dealer called the police, and appellant was apprehended a few blocks away. A search at the time of appellant’s arrest revealed he was in possession of seventy-two dollars and twenty-two or twenty-three cents in coins, mainly in nickels, dimes and quarters. It was elicited from the arresting officer by defense counsel that appellant had told the officer that he had collected the nickels, dimes and quarters in a poker game at a cafe. However, the appellant could not locate the cafe for the officer or recall the names of the persons with whom he had played poker.

The brown leather bag with blood on it was found near the scene of the arrest and the burglarized premises in tall Johnson grass and returned to the Hobbs Trailer Company.

Appellant did not testify but called one witness, a bookkeeper for a handbill distributor. She related that she did not know the appellant, but her records reflected that a Marcus D. Beck was paid in cash $7.00 in the week of September 21, 1966; $17.28 in the week of September 28, 1966; and $21.00 in the week of October 5, 1966.

The court charged the jury on the law of circumstantial evidence.

We conclude that the evidence is sufficient to support the jury’s verdict.

In Todd v. State, 170 Tex.Cr.R. 552, 342 S.W.2d 575, this Court, speaking through Judge Dice, said:

“The evidence shows a burglary of the house in question by someone. The proof of appellant’s possession of the property recently stolen from the house, under the facts and circumstances shown, is sufficient to support the jury’s verdict finding him guilty. 4 Branch’s Ann.P.C., 2nd ed., page 866, sec. 2537 and Bernadett v. State, 166 Tex.Cr.R. 621, 317 S.W.2d 747.”

In his next ground of error appellant contends the trial judge erred in failing to submit to the jury in his charge on the issue of guilt or innocence either or both of the affirmative defensive issues raised by the evidence and accounting for the appellant’s possession of the large number of coins found on his person at the time of his arrest.

Appellant concedes in his brief that he did not request any such defensive charges of the court, and the record does not reflect that the appellant presented any objections or requested charges to the court in writing, as required by Articles 36.14 and 36.15, Vernon’s Ann.C.C.P. Therefore, appellant’s complaints to the charge are not properly before us for review. Morgan v. State, 170 Tex.Cr.R. 412, 341 S.W.2d 438; Foster v. State, 170 Tex.Cr.R. 61, 338 S.W.2d 458; Hurst v. State, 168 Tex.Cr.R. 427, 328 S.W.2d 447.

We further observe that even if the jury had believed that appellant’s success at poker or his work payments or both accounted for his possession of a large number of coins at time of his arrest, this would not have entitled him to an acquittal in view of the other evidence presented, particularly his admission that he had been stealing, and his possession of the brown leather bag.

Appellant’s second ground of error is overruled.

In his last ground of error appellant questions the authority of the trial court under the circumstances to have submitted the case to the jury at the penalty stage of the proceedings under the provisions of Article 62, V.A.P.C.

The indictment was drafted under the provisions of Article 63, V.A.P.C. After a finding of guilty by the jury of the primary offense, the appellant requested the same jury assess the punishment. Pri- or to such proceedings it appears the appellant moved to quash that part of the indictment alleging two prior non-capital felony convictions for the purpose of enhancement. The motion was granted as to the Tennessee conviction alleged in the third paragraph of the indictment allegedly styled The State of Texas vs. Marcus Denison Beck, but was otherwise denied. Appellant objected contending that the court’s action materially altered and changed the indictment returned by the Grand Jury, and that as amended the indictment would not suffice “as the basis for conviction on any count of repetition.”

The action of the court in sustaining in part appellant’s motion to quash was not an unauthorized amendment of the indictment. Urtado v. State, 167 Tex.Cr.R. 318, 319 S.W.2d 711. See also Epperson v. State, 168 Tex.Cr.R. 557, 330 S.W.2d 445.

Thereafter at the penalty stage of the proceedings only the second paragraph of the indictment alleging a Texas felony theft conviction was read to the jury.

It appears to be appellant’s position that an indictment originally drawn under Article 63, supra, is sufficient to sustain a conviction either as a habitual criminal or for the primary offense alleged, but not otherwise. We cannot agree. See Fairris v. State, 171 Tex.Cr.R. 416, 350 S.W.2d 935. If it be appellant’s contention that the prior Texas felony theft conviction was not an offense of like character or one of the same nature as the primary offense of burglary with intent to commit theft to sustain a conviction under Article 62, supra, we call attention to Bowie v. State, Tex.Cr.App., 401 S.W.2d 829. There this Court said:

“Felony theft and burglary, committed with the intent to commit theft, are offenses of like character and of the same nature within the meaning of Article 62, Vernon’s Ann.P.C. Reynolds v. State, 116 Tex.Cr.R. 83, 311 S.W.2d 848.”

See also 1 Branch’s Anno.P.C., 2nd Ed., Sec. 698, pp. 680, 682.

At the penalty stage of the proceedings appellant’s five previous felony convictions from Texas; Tennessee and North Carolina were introduced.

The judgment is affirmed.

      . Allegations as to prior convictions do not constitute “counts” in the indictment. Square v. State, 145 Tex.Cr.R. 219, 167 S.W.2d 192.


author: BELCHER, Judge. WOODLEY, Presiding Judge.

text:
    Jessie Hayward JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40566.
    Court of Criminal Appeals of Texas.
    July 26, 1967.
    On Rehearing Oct. 25, 1967.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin; Henry Wade, Dist. Atty., Kerry FitzGerald, Asst. Dist. Atty., Dallas (on rehearing), for the State.
   OPINION

BELCHER, Judge.

The conviction is for burglary; the punishment, twelve years.

Sentence was pronounced and notice of appeal was given October 7, 1966.

The record on appeal has not been prepared and approved as required by Art. 40.09, Vernon’s Ann.C.C.P.

The endorsement of the presiding judge on the statement of facts, “examined, approved, and ordered filed as the statement of facts” in this cause on February 24, 1967, does not comply with the requirements of Art. 40.09(7), V.A.C.C.P., that the “entire record” be approved by the court.

The time for filing the defendant’s brief does not begin to run until the approval of the record by the court. Art. 40.09(9), V.A.C.C.P.

The disposition of the appeal will be suspended to await the approval of the entire record and further proceedings which may be had in the trial court under Art. 40.09, supra, after such approval as though the record had not been filed in this court. Stoker v. State, Tex.Cr.App., 415 S.W.2d 923.

The appeal is abated.

OPINION on STATE’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

Supplemental transcript has been received and filed which contains the order of the trial judge dated June 24, 1967, approving the record on appeal, and the certification of the clerk of the trial court showing that such order was duly and timely filed but inadvertently omitted from the record originally forwarded to this Court. The order abating the appeal is set aside.

No ground of error is set forth m a brief filed in the trial court as required by Art. 40.09(9) V.A.C.C.P., and the time allowed for filing such brief has expired.

We have examined the record and find nothing contained therein which we should consider as unassigned error under Section 13 of said Article 40.09.

No constitutional question is raised.

The State’s motion for rehearing is granted and the judgment is affirmed.


author: DICE, Judge.

text:
    William NEWHOUSE, Appellant, v. The STATE of Texas, Appellee.
    No. 40746.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1967.

      Don Leonard, Fort Worth, for appellant.
    Frank Coffey, Dist. Atty., R. J. Adcock and Gordon Gray, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The offense is murder; the punishment, ninety-nine years.

The evidence was undisputed that appellant killed the deceased by stabbing her with a knife.

The killing occurred about 9 a.m. inside a café known as Mae’s Place, in the city of Fort Worth. According to the state’s eye witness, the appellant walked over to a table where the deceased was seated and started stabbing her with a knife. Upon being asked to leave, appellant walked to the front door and as he started out he said to the deceased: “I told you I would kill you.”

Appellant then left the scene and went to the police station at the city hall, where he walked into the office of Lieutenant S.D. Pruitt, about 9:20 p.m., and told the officer “he had cut up his girl friend real bad.” Officer Pruitt asked “how bad?” and appellant replied: “pretty bad * * When the officer inquired if she was dead, appellant said “she wasn’t when I left but she was cut up pretty bad. I stabbed her seven or eight times.” In the conversation appellant told the officer he had cut the deceased with a pocket knife which he borrowed from a man at the café; that he first borrowed a smaller knife and gave it back because he needed a larger one. Appellant also told Officer Pruitt that the reason he wanted to surrender to him was because he knew the officer was his friend and he would not hurt him.

Officer Pruitt testified that at the time appellant came to the police station he did not know anything about the killing and that it was not until after the conversation and he had confirmed the stabbing by radio that he placed appellant under arrest. At such time he warned appellant that anything he said could be used against him.

At the trial, appellant testified, in sub-tance, that he cut and stabbed the deceased in self-defense when she produced a pistol from her bosom.

In his ground of error No. Ill, appellant urges that:

“The court committed reversible error by allowing the oral confession of the appellant to be admitted over the exception of his counsel without the warning required by Art. 15.17-, C.C.P., 1965, and without the oral statement reduced to writing as required by Art. 38.22, C.C.P., 1965.”

We find no merit'in the contention, as the record is undisputed that the oral statements were made by appellant to Officer Pruitt prior to his arrest and being taken into custody.

The requirements of Articles 15.17, supra, and 38.22, supra, as to the warnings necessary to the making of a written confession were not applicable under the facts.

Nor was appellant’s oral confession inadmissible under the decision of the Supreme Court of the United States in the case of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. In that case, Chief Justice Warren, speaking for the court, said:

“In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”

The ground of error is overruled.

In his ground of error No. I, appellant complains of certain jury argument of state’s counsel.

The record does not contain a transcription of the jury arguments in the case.

Appellant presented to the trial court his formal bill of exception No. 1, which alleged that in his opening argument to the jury counsel for the state said:

“The only reason the defendant did this was because Elva Mae Culton had got herself a better man.”

The bill, as presented, recited that appellant timely objected to such argument on the ground that the same was manifestly improper, that it injected new facts into the case, that there was no evidence to support such argument, that he moved the court to instruct the jury not to consider the same, and that the court overruled the objections and refused to so instruct the jury.

The trial court refused to approve the bill:

“ * * * for the reason that if such statement was made by the District Attorney, the Court’s attention was not called to the matter by a written request at the time, and the Court does not recall that the language complained of was used; however, if such language was used it was a fair comment upon the testimony.”

Thereafter, appellant filed a purported bystanders bill, which was attested by only one bystander.

Under the record, appellant’s complaint to the jury argument is not before us for review, as his bill of exception No. 1 was refused by the court and his bystanders bill is attested by only one bystander. Rule 372 of Texas Rules of Civil Procedure requires that a bystanders bill be attested by at least three bystanders. Such rule governs the preparation of bills of exception in criminal cases. Arts. 36.20 and 40.10, Vernon’s Ann.C.C.P.

We observe that if such argument was before us for review, it was a reasonable deduction from the evidence in view of the testimony given at the trial by the witness Joe Lewis Walker, who was the deceased’s brother.

Walker testified that on the day of the killing, the appellant and the deceased had an argument and

“He was accusing her of Mae’s husband and he said that he was coming over to tell, to kill Irey, and then he said he was going to tell him off and tell him to stay out of his business.”

Appellant’s remaining ground of error No. II reads as follows:

“The conviction should be reversed on the ground that the final arguments of state’s attorney were not recorded; thus not reviewable by this court, and thereby denying appellant full judicial review of a most critical part of the state’s case.”

In his brief, appellant concedes that the record does not show that a request was made for the recordation of the arguments but insists that Art. 2324, Vernon’s Ann.Civ.St., should, in capital cases, be held to require the jury arguments be recorded, and the failure to have such a record constitutes a denial of due process under the Fourteenth Amendment to the Constitution of the United States and Art. 1, Sec. 19, of the Constitution, Vernon’s Ann.St. of this State.

Art. 2324, supra, provides that the official court reporter shall “take full shorthand notes of closing arguments when requested to do so by the attorney for any party to such case.”

Art. 40.09, subd. 4, V.A.C.C.P., provides:

“At the request of either party the court reporter shall take shorthand notes of all trial proceedings, including voir dire examination, objections to the court’s charge, and final arguments.”

In the absence of a request, appellant is in no position to complain of the court reporter’s failure to take shorthand notes of the final arguments and to include a transcription of the same in the record on appeal. Moore v. State, Tex.Cr.App., 363 S.W.2d 477, relied upon by appellant, is not here controlling, because, in that case, a request was timely and properly made that the court reporter take shorthand notes of the closing arguments and the request was refused. The ground of error is overruled.

The judgment is affirmed.


author: STEPHENSON, Justice.

text:
    FORD MOTOR CREDIT COMPANY, Appellant, v. COMMONWEALTH COUNTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 6946.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 2, 1967.

      H. P. Robichau, Jr., Beaumont, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   STEPHENSON, Justice.

This is an action by plaintiff, as mortgagee, to recover under the collision provision of an automobile insurance policy written for its mortgagor. Summary judgment was granted for defendants, the insurance company and the insurance agents. The parties will be referred to here as they were in the trial court.

The undisputed evidence as contained in affidavits and exhibits shows: That October 22, 1965 a policy of insurance was written through defendant Commonwealth County Mutual Insurance Company, by defendant Ideal Insurance Agency insuring a 1960 Ford automobile owned by Donald DeWayne Moore. The original policy named Kirbyville State Bank as loss payee, but by endorsement dated October 28, 1965 such bank was eliminated from the policy as loss payee. That on November 22, 1965 an endorsement was attached to the policy showing a 1965 Mercury automobile replacing the Ford as the insured automobile, and showing plaintiff Ford Motor Credit Co. as loss payee. That December 17, 1965 cancellation notice was deposited in the United States Mail addressed to Donald DeWayne Moore, such cancellation to be effective December 28, 1965. This cancellation notice was sent by Defendant Floyd West & Company showing carbon copies to defendant Ideal Insurance Agency and Kirbyville State Bank. That no notice of cancellation was sent to plaintiff.

Plaintiff’s petition alleged that the Mercury automobile covered by this policy of insurance was totally destroyed in a collision about January 16, 1966. That demand for payment was refused by the defendants.

It is contended by plaintiff that the endorsement of the policy showing Ford Motor Credit Co. as loss payee required a notice of cancellation directly to plaintiff, and that notice of cancellation to Donald De-Wayne Moore was not sufficient.

Paragraph 16 of the original policy reads in part as follows :

“16. Cancelation. * * *. This policy may be canceled by the company by mailing to the insured named in Item 1 of the declarations at the address shown in this policy written notice stating when not less than ten days thereafter such cancelation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice * *

No mention is made in the policy as to any notice to a mortgagee or loss payee. Item 1 of the policy shows:

“Named Insured and Address:
Donald DeWayne Moore Route #3-
Kirbyville, Jasper, Texas”

Item 2 of the policy, contains in part the following:

“Any loss under part III is payable as interest may appear to the named insured and
Kirbyville State Bank, Kirbyville, Texas”

An endorsement showed that loss payable to Kirbyville State Bank was eliminated. The endorsement which plaintiff questions dated November 22, 1965 contains the following :

“Any loss * * * is payable as interest may appear to the named insured and Ford Motor Credit Co., Petroleum Bldg., Beaumont, Texas.”

Plaintiff contends first that such endorsement adds its name to Item I of the original policy and makes plaintiff a named insured. Insurance contracts are to be strictly construed in favor of the insured and against the insurer but this rule applies where the policy uses terms of doubtful meaning or where the language of the contract is ambiguous. We find nothing ambiguous about this portion of the contract. It very clearly states it can be can-celled by the company by mailing written notice to the insured named in Item. 1. The endorsement attached to the policy, when considered with the original policy shows clearly that plaintiff is the mortgagee in the place of the Kirbyville State Bank. Such endorsement says any loss is payable as interest may appear to the named insured and Ford Motor Credit Co. as the Supreme Court said in Royal Indemnity Co. v. Marshall (Tex.), 388 S.W.2d 176:

“Courts cannot make new contracts between the parties, but must enforce the contract as written. Where the terms of an insurance policy are plain, definite and unambiguous, the courts cannot vary these terms.”

There is attached to defendants’ motion for summary judgment a copy of an endorsement which is numbered 112A, apparently for the purpose of showing that there is a different endorsement which could have been written, and was not. Form 112A provides specifically that notice of cancellation must be given to the lien-holder. No such endorsement is attached to the policy here sued upon.

Apparently there are no Texas cases directly in point, as we have neither been cited nor found any such cases. However, there are several Texas cases demonstrating that cancellation of an insurance policy may he accomplished by giving the precise notice required under the terms of the policy. See: Willis v. Allstate Ins. Co., Tex.Civ.App., 392 S.W.2d 799; Insurance Co. of Texas v. Parmelee, Tex.Civ.App., 274 S.W.2d 944; and, Medford Insurance Co. v. Weimer, Tex.Civ.App., 385 S.W.2d 589.

Plaintiff next contends a question of fact was raised as to whether the insurance carrier gave any notice of cancellation. It is pointed out that such notice was given by Floyd West and Company and not by Commonwealth County Mutual Insurance Company or Ideal Insurance Agency which issued the original policy. Plaintiffs original petition named only Commonwealth County Mutual Insurance Company as defendant. By amended petition, Floyd West and Company was named as a defendant, and alleged that such company had mailed a notice of cancellation of the policy. It was also alleged that Floyd West & Company was acting by and for and as the agent of the defendant, Commonwealth County Mutual Insurance Company, when it mailed a notice of cancellation to the Kirbyville State Bank. The affidavit given in support of the motion for summary judgment stated the cancellation notice was duly deposited in the mail, and a copy of such notice was attached to the affidavit. The copy of such notice shows it was given by Commonwealth County Mutual Insurance Company by Floyd West & Company. The affidavit filed by plaintiff in reply to the motion for summary judgment did not make mention as to agency. In view of this record no fact issue was raised as to whether Floyd West & Company was the agent of Commonwealth County Mutual Insurance Company when giving the notice of cancellation.

Affirmed.


author: BARROW, Chief Justice.

text:
    TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Floyd HAMILTON, Appellee.
    No. 14624.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 1, 1967.

      Clemens, Knight, Weiss & Spencer, San Antonio, for appellant.
    Carter, Callender, Onion & Branton, Frank C. Rodgers, (Trial Court only) San Antonio, for appellee.
   BARROW, Chief Justice.

Appellee recovered judgment for total and permanent disability benefits under the Texas Workmen’s Compensation Act, based upon a jury verdict. Appellant carrier has perfected this appeal wherein it asserts that this judgment should be reversed and the cause remanded for a new trial because of prejudicial statements made on two occasions by one of the attorneys for appellee, and because of the trial court’s refusal to admit certain evidence to impeach appellee and his medical witness as to who referred appellee to said doctor.

Under the undisputed evidence, appellee sustained an accidental injury in the scope of his employment as a gutter for Roegelein Provision Company on February 4, 1965, when he slipped and fell on his back. The nature of the injury and extent of the disability was the principal issue in dispute in the trial court. Appellee never resumed work for Roegelein, for whom he had worked about five years prior to the accident, and was employed by another employer, doing light work, for only a few days between the accident and trial on January 9, 1967. Four medical witnesses testified and their testimony constitutes 257 of the 407 pages in the statement of facts. In addition, a lay witness corroborated ap-pellee’s complaints of back pain subsequent to the accident.

Shortly after the fall, appellee was taken to the Roegelein company doctor, Dr. Beach, for treatment. On February 15, 1965, Dr. Beach referred appellee to Dr. Williamson, a specialist in orthopedic surgery. Dr. Williamson found no evidence of nerve root involvement in appellee’s back at that time and prescribed treatment by a physical therapist. Appellee continued to complain of pain in his back. He tried on one occasion, about a month after the accident, to secure light duties from Roege-lein, but it had no work of this nature. Dr. Williamson examined appellee again on November 8, 1965, and at that time suspected a herniated disc on the left side at about the L-4 level. Appellee was hospitalized by Dr. Williamson from November 29 to December 6, 1965, and on December 1, a myelogram was performed to confirm this preliminary diagnosis and to specifically locate the herniated disc.

A myelogram is performed by injection of an opaque substance called “dye” into the spinal canal with a needle, and by means of a fluoroscopic screen the various inter-spaces of the spine are viewed. This procedure is a widely recognized diagnostic procedure used to aid in confirming and locating a herniated disc, and the evidence shows it is from 75% to 90% accurate. This myelogram was performed by Dr. Williamson in collaboration with Dr. El-mendorf, a radiological specialist. Each of these doctors testified on behalf of appellant that the myelogram did not demonstrate any abnormality and that the X-ray films of this procedure were essentially negative. Appellee experienced great pain during this procedure and because of his reaction some of the dye was left in his spinal canal. He testified that he even tried to pull the needle from his back. Under the record in this case, it is not unusual to leave a little dye in the canal although it can cause archnoiditis, which condition produces some symptoms similar to those caused by a herniated disc.

Dr. Price, a specialist in neurological surgery, examined appellee at the hospital on December 4, 1965, at the request of Dr. Williamson. Dr. Price testified on behalf of appellant that this neurological examination was essentially normal and that he could find no physical basis for appellee’s continued complaints of back pain and limited motion in his back and legs.

Dr. Gregorio Canales, a specialist in orthopedic surgery, testified an behalf of appellant that he had examined appellee on December 17, 1965, and again on March 2, 1966. On each occasion, appellee was complaining of back pain and had a number of subjective symptoms of a herniated disc in the area of L-4, U-5 and S-l of his spine. On March 2, 1966, these subjective findings were corroborated in part by objective findings. Dr. Canales testified that appellee was totally disabled at the time, of these examinations. Insofar as permanency of this condition was concerned, Dr. Canales expressed the opinion on direct evidence that he recommended removal of the dye from appellee’s spinal canal and if the symptoms persisted, he would suspect a herniated disc and recommend exploratory surgery. His direct testimony clearly recommended removal of the dye and any subsequent opinion would have to be based on appellee’s condition after this was accomplished.

On cross-examination he testified that he made such a recommendation to appellee and hospitalized him for that purpose on March 30, 1966. However, just prior to commencing the procedure, appellee refused to permit Dr. Canales to insert the needle and the procedure was cancelled. Dr. Canales had not seen appellee since this occurrence.

On redirect examination, appellee’s attorney inquired as to the cost of surgery and after appellant objected to the materiality of such question, appellee’s attorney stated in the presence of the jury that appellant had injected this issue into the case despite appellee’s motion in limine to prohibit appellant from showing benefits of surgery. Appellee’s attorney further stated that he was withdrawing his motion in limine and in the presence of the jury demanded that appellant’s attorney answer “Yes” or “No” as to whether appellant would pay all the necessary expenses of any operation. The trial court promptly sustained appellant’s objection to such demand. Shortly thereafter, the examination of Dr. Canales was completed and in chambers appellant moved for mistrial, and by this appeal complains of the trial court’s failure to grant same. After appellant’s motion was overruled, appellee also moved for mistrial, based upon his erroneous assumption that appellant had injected the issue of surgery into the case. His motion was denied by the trial court.

The demand of appellee’s attorney in the presence of the jury was clearly improper. It is now settled law, as was pointed out by him in his motion for limine at the beginning of the trial, that the trial court has no power to order or supervise an operation. Houston Fire & Cas. Ins. Co. v. Dieter, 409 S.W.2d 838 (Tex.Sup.1966); Garcia v. Travelers Ins. Co., 365 S.W.2d 916 (Tex.Sup.1965); Truck Ins. Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521 (1960). It is our opinion, however, from an examination of the entire record, that reversible error is not shown by this improper statement of appellee’s attorney.

It is seen that the trial court promptly sustained appellant’s objection to this conduct. Furthermore, the record clearly demonstrates that the reason the dye was not removed by Dr. Canales was not a lack of funds, but rather appellee’s refusal to permit Dr. Canales to do so, although he had gone to the X-ray room of the hospital for that specific purpose. The dye was not all removed at the time of the original myelo-gram procedure because of appellee’s severe reaction to the pain. The need for surgery could not be determined until Dr. Canales had observed appellee’s reaction to removal of the dye. There is nothing in the record to indicate any reluctance on the part of appellant to furnish necessary medical assistance at any time to appellee. Although we certainly do not condone this improper action, we cannot say from an examination of the entire record that such action was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. This point is therefore overruled. Rule 434, Texas Rules of Civil Procedure.

Both appellee and Dr. Canales testified that appellee had been referred to this doctor by the Vocational Rehabilitation Agency connected with the Industrial Accident Board. To impeach this testimony, appellant offered evidence that at the time of taking his deposition appellee testified that he went to see Dr. Canales after he got a letter from Austin in response to his request for social security, and that the social security people recommended that he see Dr. Canales. Appellant also offered ap-pellee’s testimony that he received $255.00 a month from the government for disability benefits. While recognizing that the “collateral source” rule generally prohibits evidence of collateral payments from sources other than the defendant, appellant urges that such rule has no application here because it permitted appellee to establish his case upon a false and misleading factual basis. It urges the jury should have been informed that appellee’s purpose in going to Dr. Canales was not to be rehabilitated, but rather to obtain a monthly disability pension.

The trial court did not err in sustaining appellee’s objection to this evidence. There was considerable other evidence admitted without objection, relating to ap-pellee’s action in trying to be rehabilitated by the Vocational Rehabilitation Agency. Also, whether appellee went to Dr. Canales at the request of the Social Security Agency or the Vocational Rehabilitation Agency is really immaterial, in that in either event appellee’s attorney would be able to argue, as he did, that Dr. Canales was an impartial, neutral witness.

Appellant’s final point relates to the statement of appellee’s attorney during final argument, and verified by him at that time by writing on the blackboard that compensation benefits were limited to a period of 401 weeks. No such pleading was read to the jury and there was no evidence or instruction to this effect; therefore, the statement was clearly outside the record and improper. Although appellant’s objections to same were promptly sustained, the attorney persisted in repeating same again and in inferring it a third time. Such disregard of the court’s rulings is highly improper. Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000 (1947).

We cannot say from an examination of this record that reversible error is shown by this improper statement of the law by counsel. In Highlands Ins. Co. v. Daniel, 410 S.W.2d 491 (Tex.Civ.App. — Tyler 1967, writ ref’s n. r. e.), the cases on this subject are fully reviewed. It is there pointed out that none of the numerous cases dealing with such actions held that such error constituted reversible error. We cannot say that it is shown by the record before us.

The judgment of the trial court is affirmed.

      . Traders & General Ins. Co. v. Reed, 376 S.W.2d 591, 593 (Tex.Civ.App. — Corpus Christi 1964, writ ref’d n. r. e.); 25A C.J.S. Damages § 160; 7 A.L.R.3d 519.


author: PARKER, Justice.

text:
    MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Appellant, v. Kenneth GASKAMP, Appellee.
    No. 6911.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 5, 1967.
    J. T. Maroney, Jr., Lufkin, for appellant.
    Dies & Dies, Lufkin, for appellee.
   PARKER, Justice.

On October 1, 1963 Massachusetts Mutual Life Insurance Company issued a policy of hospitalization to Angelina County, providing hospital and medical benefits to any employees of the county choosing to be insured. On April 2, 1965, Kenneth Gaskamp was hospitalized. At that time he was an employee of the county. As such, he sued the insurance company for benefits under the policy, having paid his premium for April, 1965. Upon trial before the court,, judgment was rendered for Gaskamp. Massachusetts Mutual Life Insurance Company will be called appellant. Gaskamp will be called appellee.

Appellant contends the court erred in overruling judgment for it because as a matter of law the policy had been terminated on April 1, 1965, which was prior to the hospitalization of appellee, there being no evidence that appellant had accepted and retained the payment of premium to keep the policy in force and effect. It is undisputed that appellee was hospitalized on April 2, 1965 and an employee of the county at that time. Appellee alleged the policy was in full force and effect on that date with premiums paid. Appellant plead that on April 2, 1965 the auditor of the county notified appellant that effective as of April 1, 1965 Angelina County was terminating all group insurance with appellant, and that appellant did cancel the policy as of April 1, 1965 in accordance with such instrucción.

Appellant “issued this policy to Angelina County (herein called the Policyholder) in consideration of the application of the Policyholder and of the payment of premiums in accordance with the terms of this policy, and agrees to pay benefits as provided herein with respect to any employees insured hereunder.” (Emphasis ours)

The policy covered all employees choosing to be covered by the policy. The county auditor collected the monthly premium from those employees electing to be covered by the policy. The auditor was the paying agent for these employees. The policy did not require that all employees of the county had to join in the policy. Appellant had accepted premiums covering some but not all of the employees of the county. Each month the auditor advised appellant of the names of each new employee to be covered, as well as names of employees no longer desiring to be covered by the policy. This was called the Monthly Adjustment List. Appellant prepared and sent such form in March, 1965 to the auditor for the premium due April 1st, 1965. Additions, terminations and other changes since the last Monthly Adjustment List were made by the auditor. This statement with notice of premium due had on it “Keep this notice; your check is evidence of payment. Receipt will be furnished on request.”

On March 25th, 1965, appellant wrote the county auditor, Mr. Hicks, that the “listing you recently sent us against a current listing of ours I find eight employees that we have on active list that you do not. These employees are: (names omitted here)

If these employees are no longer in your employ please complete Request for Change forms, which „ I am enclosing for your convenience, giving us full termination information and as soon as this has been done, mail forms to this office for processing.
Also I notice that A. R. Geye is the correspondent for this case and as it appears that he is no longer employed to whom should all correspondence be mailed in the future.”

In answer to the letter from appellant of March 25, 1965, the auditor promptly filled out the forms requested as to the employees who had terminated their insurance and listed employees to be covered by the policy who had not been under the policy before, together with the premium respectively owed on the policy for the month of April. Appellee’s premium on the policy was paid through the auditor by check No. 3315 dated March 31, 1965 in the sum of $49.70. This check paid the premium of appellee and three other employees of the county. The check was cashed by appellant. Appellant attempted to terminate the policy as of April 1, 1965 when it issued a check dated April 22, 1965 in the sum of $213.12 payable to Angelina County supposed to represent a refund of premiums paid. It was received by the auditor sometime after April 22, 1965. It was not cashed.

On April 4, 1965 claim of appellee for benefits under the policy was completed on a form furnished by appellant and forwarded to appellant. On March 25, 1965 the auditor sent appellant a letter stating, “This will notify you that the County of Angelina is dropping all group insurance effective with your statement of April 1, 1965. If you wish to continue carrying Angelina County employees, it will he strictly on an individual basis, and you are to contact them direct from your company.” This letter is not in evidence. Only the above quotation of a part of it is in the record. It is on the basis of this partial quotation from the letter from County Auditor Hicks that the appellant claims the policy was not in effect on April 2, 1965 when appellee went to the hospital. Hicks testified what was intended by that letter was to notify them that the April premium was the last one to be billed to Angelina County and that thereafter they should collect premiums directly from those employees desiring the policy; that “what I thought when I wrote that letter, well, I sent in that premium which was due on April 1st, I sent it on in, that is, the check was mailed on March 31st for that statement, that would be the last statement they would bill Angelina County for.” It was by letter of May 11, 1965 that appellant for the first time denied liability under its policy to Gaskamp. It is undisputed that Gaskamp paid his premium on the policy through the month of April, 1965. Appellant cashed that check of March 31st, 1965 for April premiums and retained the money until it attempted to make an improper refund to the county by its check dated April 22, 1965. The auditor was acting as agent for the respective employees in forwarding the premium. That the Monthly Adjustment List, the letter of March 25, 1965 and check No. 3315 dated March 31, 1965, in payment of premium were not executed and delivered on exactly the same day does not alter the rule that they be construed together as a part of a single transaction. Guadalupe-Blanco River Au. v. City of San Antonio (1947), 145 Tex. 611, 200 S.W.2d 989. With the fact situation in a case such as this, parol evidence is admissible to connect the instruments and to explain any conflict between them. Lloyds America v. Friend, 91 S.W.2d 766 (Tex.Civ.App. 1936, n.w.h.), and cases cited on p. 768. Under the above principles, the acts of Mr. Hicks and his testimony can be construed only as informing appellant that after payment of the April premium it could look to the employees directly for collection of the premiums.

Under Section 2, “Extended Benefits”, the policy provides that if an employee becomes confined in a hospital for * * disease within a period of three months immediately following the discontinuance of the insurance of such employee under this part (referring to the insuring clause) hospital benefits shall be payable as though confinement had commenced prior to such discontinuance, if the confinement is due to a disease which commenced prior to such discontinuance. Kenneth Gaskamp testified he saw Dr. Reid and went to the hospital April 2, 1965. He was sick some 5 days to a week before he saw Dr. Reid and went to the hospital. He was at home. He had a bad cold, for which his wife gave him 9 or 12 shots of Penicillin. It ran into pneumonia. His fever got high. He stayed in bed all one day before going to the hospital and for several days he was up and down but able to walk. He stated that if he had been called on an emergency call he would have gone whether he was able or not. He was a constable. With the evidence from appellee as to the nature and duration of his illness, the trial court could have found that under Section 2, “Extended Benefits”, the policy was in force for three months after April 1, 1965, with appellee covered by the insurance policy.

There being no findings of fact or conclusions of law, this court assumes the trial court found every disputed fact in favor of appellee. Construction and General Labor Union, Local No. 688 v. Stephenson, 1950, 148 Tex. 434, 225 S.W.2d 958; Old National Life Insurance Co. v. Guest (Tex.Civ.App.1942), 163 S.W.2d 241, err. ref.; Rolison v. Puckett, 1946, 145 Tex. 366, 198 S.W.2d 74.

Appellant’s contentions embodied in their sole point of error are overrruled. Judgment of the trial court affirmed.


author: GRISSOM, Chief Justice.

text:
    Charles W. SOMMER et al., Appellants, v. Roberta RICHARDSON, Appellee.
    No. 4200.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 27, 1967.
    Rehearing Denied Nov. 24, 1967.
    Billings, Pierce, Gilley & Stanton, R. Kelley Pierce, Dallas, for appellants.
    Jennings, Montgomery & Dies, Frank Jennings, Graham, for appellee.
   GRISSOM, Chief Justice.

Charles W. Sommer et al. have attempted to appeal from an order overruling their plea of privilege. It was rendered and entered on August 4th, 1967. The transcript and statement of facts were due to be filed in this court not later than August 24th. Texas Rules of Civil Procedure, rule 385. They were tendered for filing in this court on September 6, 1967, thirteen days after they were required to be filed. They are not entitled to have the record now filed unless their motion for extension of time, filed on August 24th, showed good cause therefor within the meaning-of Rule 385(b).

Whether appellants’ motion showed good cause is the question presented. Appellants gave as reasons the motion should be granted that the testimony was voluminous and could not be transcribed within the time allowed by the applicable rule, to wit, 20 days; that the present attorney for appellants was “just retained”; that, because of the smallness of the staff in the clerk’s office, the clerk was unable to timely prepare the transcript ; that the clerk and cdurt reporter had indicated that the transcript and statement of facts could be completed within the requested fifteen day extension.

Appellee filed an answer opposing that motion. She attached the affidavit of her counsel to the effect that the trial court advised all attorneys of his decision to overrule appellants’ plea of privilege by letter dated July 24, 1967; that appellee’s attorney sent an order overruling said plea of privilege, by letter dated July 26th, to appellants’ counsel and that it contained appellants’ notice of appeal; that the order was returned in due course to appellee’s attorney and promptly forwarded by him to the Judge on August 3rd; that a copy of the letter transmitting said order was furnished appellants’ then attorneys; that the order overruling appellants’ plea of privilege was signed and entered on August 4, 1967, and all attorneys were so advised by copies of a letter of August 4th from the Judge to the clerk.

Appellee’s opposition to appellants’ motion for extension of time stresses the facts shown by the record that no request was made to either the court reporter or clerk for preparation of a statement of facts or transcript until 17 days after the order was entered overruling the plea of privilege, which was 27 days after appellants’ attorneys should have received notice of the court’s decision to overrule their plea. It also emphasized the facts stated in the affidavits of the clerk and reporter, that delay in preparing and filing the record was not caused, as contended by appellants, by either voluminous testimony or a small staff, but solely by appellants’ delay in requesting preparation of the statement of facts and transcript.

Appellee attached to her answer the affidavit of the clerk that on August 21, 1967, she, for the first time, was requested to prepare a transcript and that the request was over the telephone by appellants’ present attorney. The clerk further stated that, after she was advised what to include, the transcript could be completed within five days. The court reporter’s affidavit was to the effect that he was first requested to prepare a statement of facts by a telephone call from appellants’ present counsel, on August 21, 1967, and that he estimated it could be prepared in 10 days. It is shown that, although the law gave appellants 20 days to have the record prepared and filed, they waited 17 days before they requested its preparation. The record shows that appellants were represented on the trial by able counsel. There is no indication that they were not as competent as appellants’ present counsel for the purposes of advising whether to appeal and promptly ordering a transcript and statement of facts. There is no showing of a need for employment of appellants’ present able counsel to order preparation of the record. To hold that this record shows good cause for 17 days delay in ordering a record which should be filed in 20 days is to ignore the established facts and defeat the policy of the State to expedite the disposition of cases, which should be specially desirable in appeals preliminary to disposition of cases on the merits. See Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587, 590.

Appellants’ affidavit attached to their motion for extension of time signed by their present counsel shows that he did not represent them on the hearing of the plea of privilege. It contains a statement that appellants, wishing to appeal from the order of August 4, 1967, attempted' to contact present counsel in order that he might represent them on appeal but that he was on vacation and did not return until August 18th, when appellants contacted him and asked him to represent them on appeal; that request was then made of one of the counsel who had represented appellants at the hearing and he immediately sent present counsel the requested portions of his file in' order that present counsel might determine “the facts and feasibility of an appeal”; that trial counsel forwarded the requested material immediately and it was received by present counsel on August 19th; that on Monday, August 21st, appellants’ present counsel requested the court reporter, by telephone, to prepare a statement of facts; that the reporter then stated that it was impossible to prepare the statement of facts by August 24th, the last day for its filing; that on August 21st the clerk was in the same manner requested to prepare a transcript, whereupon, she stated that it was impossible to prepare a transcript by August 24th and, with those facts in mind, a motion for extension of time under Rule 385 was filed by appellants on August 24th.

Appellants new counsel has been diligent. Appellants have not shown that they were. There is not even an indication of the existence of a good reason why appellants able trial counsel could not have timely decided that an appeal was advisable and timely ordered preparation of the record. To now permit the filing of this record would have the effect of saying that an appeal from an interlocutory order can be delayed long past the time fixed by Rule 385 (b) by the simple expedient of retaining new counsel near the end of the time fixed for filing the record in the appellate court. We are forced to the conclusion that appellants have not shown good cause for their failure to timely file the record. See Douglas v. Wheeler, Tex.Civ.App., 306 S.W.2d 956, 959 (Ref. n. r. e.) ; Massey v. Brindley, Tex.Civ.App., 296 S.W.2d 296 (Writ ref.); Gee v. Smith, Tex.Civ.App., 294 S.W.2d 415. The motion is overruled.


author: CLAUDE WILLIAMS, Justice.

text:
    SPIN-LINE COMPANY, Inc., et al., Appellants, v. UNITED CONCRETE PIPE CORPORATION, Appellee.
    No. 16972.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 27, 1967.
    Rehearing Denied Nov. 24, 1967.

      David M. Kendall, Jr., Woodruff, Hill, Bader & Kendall, Dallas, for appellants.
    Benjamin Raye Collier, Stigall & Max-field, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

The paramount question presented by this appeal is the liability vel non of the corporate and individual appellants on a non-negotiable promissory note executed by the corporation, with the individuals being endorsers thereon, said note being subject to the terms and conditions of a contemporaneously executed written contract.

FACTS

In 1963 Shell Pipe Line Corporation (hereinafter referred to as Shell) was awarded a contract to build and install a pipe line to furnish water to oil producers in the Permian Basin area in West Texas. Shell did not have the necessary concrete pipe to perform the contract so, during the latter part of 1963, such company invited competitive bids in order to obtain the pipe, it being understood that the bids to be submitted were on a “unit price” basis. Shell did not know at that time, and had no way of ascertaining, exactly the amount of pipe which would be required to complete the contract and such was the basic reason for the “unit price” bid. Among the various bidders were Spin-Line Company, Inc. (hereinafter referred to as Spin-Line) and United Concrete Pipe Corporation (hereinafter referred to as United). Spin-Line proved to be the low bidder and was awarded the contract which was designated the “El Capitán (West Texas) Water System.” A written contract was executed by Spin-Line and Shell, same containing an exhibit setting forth in detail the respective unit prices of the pipe involved. Due to some question concerning Spin-Line’s financial ability to perform, Shell required an indemnity agreement to be executed by eight individual Spin-Line stockholders (said parties owning practically all of Spin-Line’s capital stock) to secure Spin-Line’s performance. Separate agreements of indemnity, with a maximum of $300,000 liability, were executed in favor of Shell by each of the eight individuals.

S. Mort Zimmerman, president of Capital Exchange Corporation (which company votes 100 per cent of Spin-Line’s stock) and also a director of Spin-Line, was active in behalf of Spin-Line and the individual indemnitors during the early stages and final consummation of the El Capitan contract with Shell. Each of the individuals admitted that they had been involved with Zimmerman on a number of occasions and business ventures and that each had received the indemnifying agreement from Zimmerman, signed the same and returned it to him.

Within a short time it became apparent that Spin-Line was unable to perform the El Capitan contract, the reason for such failure to perform being, inter alia, lack of proper facilities to manufacture the concrete pipe.

Mr. Galbraith, an official of Shell, testified that Zimmerman came to the- Shell office in Houston and “said that they could not perform and wanted to know what we would like to do about it * * Zimmerman was informed that Shell was going to hold Spin-Line strictly to its contract. Zimmerman then advised the Shell officials that he thought that a deal could be worked out with United to furnish the pipe so that Shell would not be in default. With that he left the Shell office with the promise to communicate back and let them know what sort of a deal he might make with United. United had submitted the second lowest bid on the El Capitan job.

About the first week in December 1963 Zimmerman called Mr. Curtis, president of United, whose offices were in California, in which he stated that he would like to come out to California and talk over the Shell contract. Zimmerman went to California and in a conversation with Curtis advised him that “they” were in trouble and would not be able to complete the Shell contract. He advised Curtis that he would like to explore the possibility of United taking over Spin-Line’s contract. Curtis told Zimmerman he would investigate and “give him a price at which he would agree to accept the transfer of the contract.” Curtis did in fact send representatives to Texas who discussed the matter with Shell and based upon the information obtained Curtis determined that for a figure of “about $214,000” United would be willing to take over the Shell project. In the meantime, Zimmerman wrote a letter, dated December 14, 1963, to Mr. Curtis confirming the visit to California and other telephone conversations relating to the Shell contract. In this letter Zimmerman outlined their verbal understanding which included an understanding that as a part of the consideration for the transfer of the contract and indemnification by Spin-Line, United was to agree to cause the completion of Spin-Line’s concrete plant at Odessa, Texas in order that Spin-Line might establish a basis for offering such complete plant facilities for sale “to any potential purchaser located outside the continental limits of the United States of America.”

After several discussions between Curtis and Zimmerman on the telephone a “Memorandum of Understanding” was reduced to writing, dated December 10, 1963, and executed by Zimmerman on behalf of Capital Exchange Corporation and Spin-Line and by Curtis on behalf of United. By the terms of this “Memorandum of Understanding” Capital Exchange Corporation and Spin-Line agreed to cause Shell to substitute United as contractor under the original contract between Shell and Spin-Line. In consideration therefor Spin-Line agreed to pay United the sum of $214,350, such sum to be evidenced by a promissory note payable on or before July 1, 1964 “to be executed by Spin-Line and all of the persons who have individually entered into the Indemnity Agreement provided by Shell as required in the aforesaid contract dated November 22, 1963.” The agreement further provided that “It is the intent of Spin-Line to dispose of its concrete pipe fabricating facilities located at Odessa, Texas for use in a foreign country. In the event sale is consummated, United will assist Spin-Line in such sale by furnishing personnel at a reasonable cost to complete the facilities and place the same in operating condition. * * * United will allow the free use of its patent rights and processes. * * * ft

After the “Memorandum of Understanding” was returned to Zimmerman in Dallas, Zimmerman requested that Mr. Young, vice-president of United, and Mr. Berge-mann, house attorney for United, come to Dallas to work out a definite agreement in the form of a contract that would be satisfactory to the parties.

Bergemann testified that he and Mr. Young met Zimmerman in Dallas in the early part of January 1964. He said that he was “sent to Dallas by United to enter into negotiations with Zimmerman looking to the consummation of an agreement whereby United would take over the Shell contract with Spin-Line and they would be compensated for taking it over.” He said that he had been instructed to get approximately $200,000 as the monetary portion of the consideration for the takeover agreement and that such amount could be evidenced by a note. He conferred with Zimmerman and Mr. Marsh (Capital Exchange’s lawyer) for about two days working out the details of the contract. In connection with the promissory note it was necessary to get same endorsed by the in-demnitors who had agreed to indemnify the Shell contract and since these indem-nitors were scattered all around the country he suggested to Zimmerman that he call these people and tell them to send a telegram agreeing to endorse the note. Zimmerman proceeded to call each of the various indemnitors and explained to them that United had agreed to take over the Spin-Line-Shell contract at a price and that it would be necessary for them to endorse a note. He requested that each of them send him a telegram assenting to this. According to Bergemann all of the telegrams were received by Zimmerman while he was there.

The promissory note was dated January 10, 1964 and is here copied:

“PROMISSORY NOTE
“DALLAS, TEXAS
“JANUARY 10, 1964
“Upon presentment on July 31, 1964 at the offices of the undersigned corporation in Odessa, Texas, the undersigned promises to pay to United Concrete Pipe Corporation, the sum of One Hundred Ninety-Eight Thousand Eight Hundred Fifty Dollars and no/100 Dollars ($198,-850.00), without interest.
“Past due principal shall bear interest at the rate of six percent (6%) per an-num. If this note is placed in the hands of an attorney for collection, or if it is collected through judicial proceedings, an additional ten percent (10%) on the full amount shall be paid for attorney’s fees.
“This note is subject to the terms and conditions of that certain Agreement between the undersigned corporation and United Concrete Pipe Corporation of even date. This note is non-negotiable.
“SPIN-LINE COMPANY, INC.
“By
“/s/ Lloyd R. French
“President
“The undersigned without presentment or protest hereby each endorse the above note to the extent of twelve and one-half percent (12½%) of all amounts due thereunder.”

(Followed by the names and addresses of the individual endorsers.)

The material portions of the agreement which was then prepared are as follows:

“AGREEMENT
“THIS AGREEMENT, entered into and effective the_ day of January, 1964 between SPIN-LINE COMPANY, INC., a Texas corporation (hereinafter called ‘Spin-Line’) and UNITED CONCRETE PIPE CORPORATION, a California corporation (hereinafter called ‘UNITED’) :
“WITNESSETH;
“WHEREAS, Spin-Line has heretofore entered into a contract dated November 22, 1963 with Shell Pipe Line Company (hereinafter called ‘Shell’), said contract being entitled ‘Contract for Purchase of Materials and Services for EL CAPITAN (West Texas Water System)’; and
“WHEREAS, the parties hereto are in mutual agreement that United should be substituted for Spin-Line in aforesaid agreement; and
“WHEREAS, Spin-Line desires to obtain the assistance of United in completing its concrete pipe fabricating facilities located at Odessa, Texas, primarily for the purpose of selling the same for use in a foreign country; and
“WHEREAS, it is deemed in the best interest of United to cause the completion of these facilities in order that they shall be sold out of the United States;
“NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto do mutually agree as follows:
“1.
“Spin-Line will cause Shell to enter into a contract with United covering the same work as specified in aforesaid contract dated November 22, 1963 and thereafter to release Spin-Line from all obligation and responsibility under said contract.
“2.
“In addition to all sums to be paid by Shell under aforesaid contract, Spin-Line agrees to pay to United the sum of $198,-850.00 for the performance of the contract to be entered into between Shell and United, subject to a further reduction of $8,500.00 in the event the lining of the steel pipes can be done with sand substituted for pozzolan. The sum which Spin-Line shall be hereby required to pay to United shall be represented by a promissory note payable on or before July 31, 1964. Said note shall be endorsed by certain individuals as reflected on the note attached hereto and incorporated herein. In the event the sale of Spin-Line’s concrete pipe fabricating facilities is consummated prior to July 31, 1964, the first proceeds from the same shall be applied to the payment of said note.
“3.
“In the event that Shell agrees to increase the contract price of the new contract with United to an amount in excess of the contract price to Spin-Line, the amount which Spin-Line shall be obligated to pay to United pursuant to the provisions of Paragraph 2 above shall be reduced by the amount of such increase in contract price, and aforesaid promissory note shall be modified accordingly.
“4.
“In connection with the proposed sale and disposition of Spin-Line’s concrete pipe fabricating facilities located at Odessa, Texas, United agrees as follows:
“(a) United will demonstrate similar facilities in operation at one of its plants to any prospective purchaser when requested by Spin-Line, such demonstration to include operations of the pre-stressed concrete pipe plant, steel processing equipment, curing operations and in general the demonstration of the full capability of a concrete pipe manufacturing plant similar to the facilities of Spin-Line when completed.
“(b) Upon the consummation of a sale outside of the United States, United will grant to said purchaser a royalty-free use of the pertinent United patent rights and processes. United requires under the terms of this contract that Spin-Line sell these facilities outside the United States.
“(c) Upon the request of Spin-Line (which request will not be made until a sale has been consummated or there are reasonable grounds for believing that a sale to a specified customer will be consummated), United will furnish personnel at a reasonable cost to complete Spin-Line’s concrete pipe fabricating facilities and place the same in operating condition. Any sums expended by United under the provisions of this subparagraph shall be expended with the prior approval of Spin-Line.
“(d) United will establish the capacity of performance of said concrete pipe fabricating facilities which in general will be at least sufficient to produce the quantity and quality of concrete pipe used in connection with the Shell contract referred to above. United will prepare and deliver written performance specifications which are in conformity with industry standards and will warrant in writing such performance specifications to any purchaser of these facilities.”

In the meantime Shell was advised by Mr. Young of United that United had entered into an agreement with Spin-Line whereby United would supply the necessary pipe and complete the Shell contract. Thereupon Shell entered into a purchase order agreement with United which contained the exact unit prices as contained in the original Shell-Spin-Line contract. Thereupon Shell proceeded to release both Spin-Line and the individual indemnitors from all liability flowing from the original Shell-Spin-Line contract.

Bergemann took the contract, copied above, which had been signed by French as President of Spin-Line, back to California where it was inspected by Mr. Curtis. Mr. Curtis testified that he found language in the instrument that was different from that which had previously been agreed to with Zimmerman. He stated that there had never been an agreement to the effect that United would require Spin-Line to sell its facilities only outside the United States. He therefore had the first three or four pages of the agreement retyped and the following changes made:

In the preamble of the agreement the sentence reading:

“WHEREAS, it is deemed in the best interest of United to cause the completion of these facilities in order that they shall be sold out of the United States;”

was changed to read:

“WHEREAS, United desires to assist Spin-Line in the sale of its facilities.”

Paragraph 3 was changed so that in three instances therein the words “contract price” were changed to read “unit price.”

In Paragraph 4(b) of the agreement the following sentence was omitted: “United requires under the terms of this contract that Spin-Line sell these facilities outside the United States.”

Having made these changes the retyped pages were inserted in the original instrument over the signature of Mr. French on behalf of Spin-Line, and then the instrument, as changed, was signed by Mr. Bergemann as Secretary of United. There is no evidence that anyone on behalf of Spin-Line executed the instrument again following the changes made in California.

Curtis testified that after the contract had been thus changed and signed by Bergemann it was “sent” back to Zimmerman.

By letter dated January 27, 1964 Berge-mann wrote to Zimmerman and said, inter alia:

“We are also enclosing copies of the Agreement between Spin-Line Company, Inc. and United Concrete Pipe Corporation with respect to the concrete pipe fabricating facilities belonging to Spin-Line located in Dallas. We have taken the liberty to make a technical change in the agreement to eliminate any limitation with respect to the geographical disposition of the equipment. These changes do not affect the intent of the parties in any manner and we trust you will find them in order.”

When this letter was offered in evidence appellants’ attorney stated and stipulated in open court as follows:

“I am willing to stipulate that the letter was sent on January 27, 1964; was sent with the final draft back to Mr. Zimmerman. The letter itself contains conclusions of the writer, self-serving declarations. * * * Whatever it is properly admissible for would show a lettter was written on that date and sent with the final draft, I will also stipulate.”

The individual appellants, in answer to interrogatories, all testified:

“Q. Was a promissory note in the principal amount of $198,850, dated on January the 10th, 1964, signed by the President of Spin-Line in his behalf forwarded to you for your limited endorsement; if so, please state when and what amount and by whom such a note was forwarded to you.
“A. Yes, we don’t recall the details or how or when.
“Q. Did you endorse same and if so, please state when such note was returned.
“A. Yes, we returned it to Capital Exchange Corporation.
“Q. Were you aware that an agreement of even date with said note was entered into by and between United and Spin-Line ?
“A. Yes.
“Q. Were you advised of the terms and conditions of said agreement, were such terms and conditions acceptable to you?
“A. We were advised and agreed generally to the terms. We understand that United may have unilaterally changed some of the terms.”

It is undisputed that no response was received from Zimmerman to the letter of transmittal referred to above nor is there any evidence that either of the endorsers, other than Zimmerman, received actual notice of the changes made in the contract as above related.

United proceeded to fulfill its obligation to Shell and completed the contract with that company with apparent satisfaction to all parties concerned. There is testimony that on at least two occasions United, at the request of Spin-Line, demonstrated similar facilities of Spin-Line to prospective purchasers of the Spin-Line facilities but no sale was made either in or out of the United States. After the Shell contract had been completed and the note became due it was presented to Spin-Line and payment refused. Each of the individual endorsers refused to make payments. Thereafter this action was instituted by United against Spin-Line and the individual endorsers seeking judgment for the amount of the note, interest and costs. Spin-Line and the individual ' defendants countered with numerous special defenses including denial of contract. Spin-Line also, in the alternative, asserted a cross-action against United based upon alleged breach of the contract. United, in response to special defenses pled, asserted the doctrine of estoppel, ratification and acquiescence. It was also asserted that Zimmerman was the actual or apparent agent for Spin-Line and the individual endorsers and that his acts and conduct ratified the agreement and that the defendants were estopped to deny such agency and authority thereof. United admitted in its pleadings that certain language in the original agreement had been changed by United but alleged that such changes were immaterial and that the contract, as changed, was accepted by Zimmerman as agent for Spin-Line and the individuals concerned.

The case was tried to the court and jury and in response to special issues submitted the jury made the following material findings: (1) that the changes in the draft of the contract did not amount to material changes; (2) that the draft of the contract prepared by United was more favorable to Spin-Line and the endorsers than the draft of contract originally signed by Spin-Line; (3) that the draft of the contract, as changed by United, was accepted by Zimmerman for himself and on behalf of Spin-Line and the individual endorsers; (4) that Zimmerman had authority to accept such changed draft of contract on behalf of Spin-Line; (6-18) that Zimmerman had authority to accept such changed draft of contract on behalf of each of the individual endorsers; (20) that Zimmerman had apparent authority to act on behalf of Spin-Line and each of the individual endorsers on the promissory note in accepting the changed draft of the proposed contract; (21) that United fully performed all of the terms and obligations which the changed contract purported to require of it, and (22) such performance by United was done in reliance upon the apparent authority of Zimmerman to accept the changed draft of the contract.

After overruling motions for instructed verdict, motions for judgments non obstante veredicto, and motions for new trial, the trial court rendered judgment in favor of United and against Spin-Line for the sum of $248,738.15, representing principal balance and interest on the promissory note sued upon, together with $22,612.56 attorneys’ fees, and against each of the named individual endorsers in the sum of $31,092.-27, plus 12½ per cent of all costs of court.

OPINION

While it is true that the basic cause of action brought by appellee was upon a simple non-negotiable promissory note, it is equally true that the validity of the judgment rendered against the maker and endorsers of such note is dependent upon the validity of the contract referred to in the note. Appellants make no contention concerning the note itself or the execution thereof but assail the judgment primarily on the proposition that the contract between United and Spin-Line was never brought into being and therefore no liability attached to either Spin-Line or the individual endorsers by reason of the execution of such note. Implementing a myriad of legal principles in the field of contract, agency and suretyship law, appellants mount an attack upon the judgment in a plethora of points, fifty-eight in number, many involving purely procedural questions. It is evident that appellants’ main assault is founded upon the premise that since United made a material change or changes in the original draft of the contract signed by Spin-Line such changes resulted in no agreement at all between the parties. Also they assert that since the material alterations or changes in the agreement were made without the knowledge or consent, express or implied, of the endorsers of the note, they were thereby released of their legal obligation, as a matter of law.

By countervailing points appellee contends that the jury verdict resolving the questions of materiality of the contract changes, the matter of agency, estoppel, ratification, etc., is amply supported by the record and therefore the judgment was correct.

We first consider the question of alteration of the instrument. Were the admitted changes and alterations immaterial, as contended by United, or material, as asserted by appellants? If they were material the law is well settled in Texas, as elsewhere, that such material alteration renders the instrument void and unenforceable by the party who made the alteration as to the nonconsenting parties. 3 Tex.Jur.2d, § 3, pp. 36-37; 4 Am.Jur.2d, § 9, p. 10; 3 C.J.S. Alteration of Instruments § 5, p. 907. It is also the general rule that whether the altered and changed contract is more favorable or beneficial to the party sought to be charged thereon is not material or pertinent in deciding the question of the validity of the contract. 3 Tex.Jur.2d, § 10, p. 44; 4 Am.Jur.2d, § 8, p. 10.

The law broadly defines materiality of alteration to be any change that causes an instrument to speak differently in legal effect from what it originally spoke. The true test seems to be whether the altered writing describes the contract entered into by the parties, or whether the instrument’s legal effect has been varied. 3 Tex.Jur.2d, § 4, pp. 38-39. In 4 Am.Jur.2d, § 5, pp. 6-7, it is said:

“Generally speaking, any alteration of an instrument is material which destroys the identity of the instrument or of the contract evidenced thereby, or which so changes its terms as to give it a different legal effect from that which it originally had, and thus works some change in the rights, obligations, interest, or relations of the parties.”

In Starks v. Loftus, 248 S.W. 1090 (Tex.Civ.App., Galveston 1923), the court stated the rule that an alteration is material if it •changes the legal effect of the instrument, either in its terms or the relation of the parties thereto. The court cited the reasoning for this rule as set forth in the early opinion of the Supreme Court of Texas in Miller v. Alexander, 13 Tex. 497 (1855), as follows:

“If, on the production of such an instrument, it appears to have been altered, it is incumbent on the party offering it in evidence to explain this appearance. For the instrument is supposed to have been intended to express the agreement of the parties, solemnly adopted as such, and attested by the signature of the party engaging to perform it. Any alteration, therefore, which makes it speak a language different in effect from that which it originally spoke, destroys its identity, and its legal virtue, for it is no longer the agreement which the parties undertook to perform. An agreement to be binding must have the assent of both the contracting parties; and, consequently, cannot have legal validity if altered by one party without the concurrence of the other. Hence, every alteration on the face of the-instrument which evidences the agreement renders it suspicious; and this suspicion the party claiming under it, is ordinarily held bound to remove.”

In the more recent case of Associated Sawmills, Inc. v. Peterson et al., 366 S.W.2d 844 (Tex.Civ.App., Dallas 1963), we applied this well reasoned rule.

The question of whether the alteration was material within the meaning of the established rule of law thus announced is one of law and not one of fact to be decided by a jury. Park v. Glover’s Heirs, 23 Tex. 469 (1859); People’s Finance Co. of Dallas v. Sabanovich, 26 S.W.2d 187 (Tex.Com.App.1930); 3 Tex.Jur.2d, § 49, p. 76; 4 Am.Jur.2d, § 90, p. 84.

In attempting to resolve the question of law thus presented we must, of necessity, apply the general rules of construction of contracts and the first of such rules is to ascertain and give effect to the real intention of the parties as that intention was revealed by the language used in the agreement. It is also appropriate and proper to consider the negotiations of the parties leading up to the written agreement and to view the agreement as of the time it was made and not in the light of subsequent events. Ervay, Inc. v. Wood, 373 S.W.2d 380 (Tex.Civ.App., Dallas 1963, writ ref’d n. r. e.); Fleming Oil Co. v. Anco Gas Corp., 217 S.W.2d 29 (Tex.Civ.App., El Paso 1948); 13 Tex.Jur.2d, § 122, pp. 287-288.

Applying these established principles of law to the record in this case we have reached the conclusion and so hold that the contract was altered in two respects, one being immaterial and the other material.

The change of the words “contract price” to “unit price” in Paragraph 3 of the original contract is quite obviously an immaterial change which does not affect the status of the parties nor the obligation of anyone. This fact becomes quite obvious when it is observed that all parties intended that United was to be substituted for Spin-Line in the original Spin-Line-Shell contract on the same terms and conditions as therein set forth. The record is without dispute that the Shell contract with Spin-Line was made on a “unit price” basis and for very good reason. Shell requested bids on a “unit price” basis and secured such a bid from Spin-Line which eventually was made into a contract. Under these circumstances there could be no “contract price” as generally understood. All through the negotiations between Spin-Line and United leading up to the taking over by United of the Shell contract the parties referred to “unit price” except in one instance and that was in the “Memorandum of Understanding” wherein the term “contract price” was mentioned. The contract eventually made by United with Shell was on a “unit price” basis and was the same as that previously made by Spin-Line. Based solely upon the peculiar facts before us we think it obvious and so hold that the use of the terms “unit price” and “contract price” were synonymous. As a matter of fact, the entire statement of facts is devoid of any testimony concerning this change made in the contract, or the effect thereof. Being immaterial, this particular change does not affect the validity of the contract.

However, based upon a very careful review of the record we are of the opinion and so hold that the changes made by Curtis, president of United, having to do with the restriction upon the sale of the Spin-Line facilities outside the continental limits of the United States do constitute a material change and alteration of the contract so as to affect the obligation of the parties thereon. While it is argued that the change made by United would be more profitable and favorable to Spin-Line such fact, if it is a fact, has no material bearing upon the question to be resolved. The fact remains that the contract as originally drawn up in Dallas contained a specific and mandatory provision that the sale of the Spin-Line facilities must be made outside the United States. This was an obligation on the part of all parties concerned and was mutually agreed to as reflected by prior oral and written communications between the parties. In this connection it must be borne in mind that the contract in question was one instrument but dealing with two separate subject matters, somewhat related. The prime purpose of the contract was to effectuate the substitution of United for Spin-Line on the Shell contract. The other provisions of the contract had to do with United’s acceptance of an obligation to aid Spin-Line in the completion of its facilities at Odessa so that they might be sold outside the United States. The record reveals that United owned certain patent rights involving the processes involved in the manufacture of pipe. Apparently these patent rights constituted motivating factors in the ultimate provisions of the agreement between the parties. Such patent rights would logically form the basis for United’s restrictive requirement contained in the original draft of the contract that the facilities must be sold outside the United States. This restriction was obviously recognized by Spin-Line and agreed to by that corporation. Such restrictive agreement undoubtedly created certain legal obligations on the part of both parties and it cannot be logically said that the changing of these conditions did not materially affect the legal relationship between the parties.

Such material alteration and change completely negates any meeting of the minds of the parties which is so fundamentally necessary in the creation of any contract. Summers v. Mills, 21 Tex. 77 (1858); Garrett v. International Milling Co., 223 S.W.2d 67 (Tex.Civ.App., Texarkana 1949); 10 Tex.Jur., § 23, p. 42; 17 C.J.S. Contracts § 42, p. 674.

This brings us to a consideration of appellee’s contention that even if there was a material change in the contract the new and revised edition of the agreement amounted to a counter proposal by United and since it was forwarded to Zimmerman who was the agent of Spin-Line and the individual appellants, such agreement became a contract by Zimmerman’s silence coupled with the performance of the contract by United. Thus appellee seeks to apply the doctrines of ratification and es-toppel by silence. It is well settled than an instrument will not be vitiated by an alteration therein, however material, made by one of the parties thereto, if the alteration is made with the knowledge and assent of the party or parties sought to be charged thereon. 3 Tex.Jur.2d, Alteration of Instruments, § 18, p. 51; Taylor Construction Co. v. Clynch, 196 S.W.2d 700 (Tex.Civ.App., Amarillo 1946). It is also true that a materially altered writing may be given validity by virtue of the principle of estoppel whereby a party may be estopped from denying liability on an altered instrument where he, with knowledge of the alterations, accepts the benefits according to the terms of the altered instrument. 3 Tex.Jur.2d, Alteration of Instruments, § 20, pp. 53-54. The sine qua non of the application of each of these principles of law is the knowledge on the part of the party or parties sought to be charged by the altered instrument.

Applying these principles of law to the record before us it is evident that by virtue of the testimony of Curtis, as well as judicial admission made by appellee’s attorney in open court, the altered contract was returned to Zimmerman who would be charged with knowledge thereof. The question then arises as to whether knowledge by Zimmerman would be imputed to Spin-Line and the other individual appellants. We have carefully examined the record and find an entire absence of evidence that any of the individual appellants, other than Zimmerman, had actual knowledge of the changes made in the contract. The requests for admissions answered by the individual appellants is not sufficient to bring on such knowledge for the simple reason that their answers obviously related only to the original agreement and not to the changed or altered contract. Nor do we find any evidence to support appellee’s contention that Zimmerman was clothed with apparent authority to accept the rewritten contract on behalf of the other individual appellants. The change was material and different from the original draft agreed upon by the individual appellants and there is nothing in this record to indicate that the apparent authority of Zimmerman extended as far as contended by appellee. In any event, we hold that the evidence is insufficient to show such apparent authority vested in Zimmerman by the remaining individual appellants.

As to Spin-Line we need not reach the question of whether Zimmerman’s knowledge of the changed contract bound such corporation for the simple reason that it filed a cross-action in this case seeking to enforce the revised contract and thereby embraced same. The rule is thus stated in 2 Tex.Jur.2d, § 95, p. 543:

“If the principal, with full knowledge of all the material facts of the case, attempts to enforce a contract made by the agent without authority, by commencing an action against the third party involved, such action by the principal is deemed to constitute a ratification of the agreement.”

We therefore conclude that as to Spin-Line and appellant Zimmerman, the doctrine of estoppel and ratification is applicable and that each appellant is bound by the terms and provisions of the revised contract.

However, as to the remaining individual appellants the record is clear that they are not legally bound by the provisions of the revised contract and since the note sued upon is contingent upon such terms and conditions, such endorsers are released from liability.

In the case of Southwest Savings Ass’n v. Dunagan, 392 S.W.2d 761 (Tex.Civ.App., Dallas 1965, writ ref’d n. r. e.), we had occasion to comment extensively upon the rule of strictissimi juris as applicable to guaranty contracts. We think the same general rule is applicable in this case as relates to the liability of the individual endorsers, other than Zimmerman, on the note sued upon. It is clearly the law that since the surety is bound only by the precise terms of the contract, the performance of which he secures, any material alteration or change in its terms, whether injurious or not, unless made with his consent, operates to discharge him. 53 Tex.Jur.2d § 36, pp. 601-602. Furthermore, a surety has a perfect right to rely upon the instrument and there is no requirement upon him to keep watch over the conduct of the parties thereto to determine whether changes have been made in the instrument. Old Colony Ins. Co. v. City of Quitman, 163 Tex. 144, 352 S.W.2d 452 (1961); Southwest Savings Ass’n v. Dunagan, 392 S.W.2d 761 (Tex.Civ.App., Dallas 1965, writ ref’d n. r. e.), and cases therein cited; Fidelity & Deposit Co. of Maryland v. Kelsay Lumber Co., 33 S.W.2d 731 (Tex.Com.App.1930); Wilson v. J. W. Crowdus Drug Co., 222 S.W. 223 (Tex.Com.App.1920); Hughes v. Straus-Frank Co., 127 S.W.2d 582 (Tex.Civ.App., San Antonio 1939, affirmed Tex.Com.App.1941, 138 Tex. 50, 156 S.W.2d 519); Stephenson v. Nelson, 243 S.W. 1069 (Tex.Com.App.1922).

The remaining points presented by appellants have to do with procedural matters. We have carefully examined same and find them to be either immaterial or reflecting no reversible error.

It is our judgment that the judgment of the trial court insofar as it relates to appellants Spin-Line Company, Inc. and S. Mort Zimmerman be and the same is affirmed. It is our further judgment that the judgment of the trial court, as relates to the appellants Frank C. Anderson, Ross Brun-ner, Lloyd R. French, Henry Homes, Jr., William C. Huls, Philip Leserman, III, and Albín P. Scott, be and the same is hereby reversed and rendered that appellee United Concrete Pipe Corporation do have and recover nothing from these named appellants.

As to the costs of this appeal it is ordered that 75 per cent thereof be assessed against appellee United Concrete Pipe Corporation and 25 per cent be assessed against appellants Spin-Line Company, Inc. and S. Mort Zimmerman.

Affirmed in part and reversed and rendered in part.