text:
    Golta TANDY et al., Appellants, v. Charles P. DICKINSON, Appellee.
    No. 7264.
    Court of Civil Appeals of Texas. Amarillo.
    May 20, 1963.
    Archer & Brownlee, Perryton, for appellants.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Gene E. Steed, Perryton, for appellee.
   CHAPMAN, Justice.

This case originated as a trespass to try title action filed by appellee, Charles P. Dickinson, against Golta Tandy, a widow, and others involving a quarter section of land in Ochiltree County. The evidence was introduced before a duly selected jury. After the evidence was completed all parties through their counsel agreed that the questions involved could better be disposed of by the court without the services of a jury and that the jury should be discharged and all issues determined by the court, which procedure was followed.

Judgment was rendered for plaintiff, Dickinson, and at the request of defendants, Golta Tandy and her two children, Roger C. Tandy and Coralee Foster, surviving widow and children respectively of W. T. Tandy, deceased, Findings of Fact and Conclusions of Law were filed by the court. Appeal is perfected by only the defendants just named.

Appellants have not complied with the requirements for briefing under Rule 418 Vernon’s Ann.Rules of Civil Procedure but have set out under “Summary of Argument” a contention which we presume they intend as a point. Then under “Argument and Authorities” they have set out four abstract propositions of law. We shall, nevertheless, attempt to discuss such questions as they have raised in any form that appeared determinative of the -issues involved and the judgment rendered by the court. Under “Summary of Argument” they have asserted in effect that the trial court erred in not adjudging that an instrument introduced into evidence as Defendants’ Exhibit I was a valid and binding contract and under it appellants were entitled to an accounting for rents and profits that should have been applied to an indebtedness due the estates of H. E. Hoover and C. C. Patten.

The trial court found that: “Any claim of any of the defendants to the ‘land in controversy’ is barred by the 10 year statute of limitations as contended in Article 5510 and other articles of Title 91, R.C.S., Texas.”

Under the Findings of Fact the trial court found that Esther Patten Dickinson, mother of appellee, Charles P. Dickinson, took complete possession of the land in controversy on May 14, 1948, claiming ownership through a gift of three-eighths (⅜) interest from her mother, a deed to three-eighths (⅜) interest (less some mineral reservation) from Mae W. Patten, Esther Mae Mekeel, and Leland F. Mekeel, and a deed from the widow and children of H. E. Hoover, deceased, purporting to convey a one-fourth (⅛) interest (less a one-thirty second (⅜2) royalty interest).

The court also found as facts that Esther Patten Dickinson held peaceable and adverse possession of the land, either personally or through tenant, cultivating, using, and-enjoying the same from May 14, 1948, until she gave the land to her son, ap-pellee, by deed of gift on June 3, 1957; that appellee went into immediate possession by virtue of the gift and has held peaceable and adverse possession of the land, either in person or through tenant, cultivating, using, and enjoying the same until the filing of this suit on June 24, 1959; and that Esther Patten Dickinson and Charles P. Dickinson together have successively and without interruption and with privity of estate between them held (as defined in Articles 5514, 5515, and 5516) for more than 10 years prior to the institution of this suit peaceable and adverse possession of the land in controversy, save and except those mineral or royalty interests stipulated by the plaintiff, Charles P. Dickinson, as belonging to certain of the defendants, and that during all such time they have cultivated, used, and enjoyed the same.

We deem it unnecessary to quote all the testimony substantiating the court’s findings of fact just related. Suffice it to say, the testimony is amply sufficient to support the findings.

As a bar to recovery under such findings and conclusions defendants assert the instrument variously referred to as a “declaration of trust”, “trust indenture”, and “deed of indenture”, and which we will hereinafter refer to as Defendants’ Exhibit I, precluded the running of the statute since its filing in Ochiltree County on April 27, 1945.

For a number of reasons we do not believe the instrument is effective to reduce or defeat appellee’s title. In the first place, there is no probative evidence of any legal title in H. E. Hoover on which the interest asserted by appellants could be based. If it could be said that he acquired any title to the land in controversy through a deed of August 30, 1933, from W. E. Tandy, all that interest was deeded away by him to the four Tandy girls on October 10, 1933. Defendants’ Exhibit I was executed on April 26, 1934, and according to the record before us any interest W. E. Tandy had ever owned in the property in controversy was then owned by the four Tandy girls. Therefore, W. E. Tandy had no interest to convey, either legally or in trust.

Additionally, the fact that Defendants’ Exhibit I had been filed of record did not constitute constructive notice to appellee and his predecessor in title because it was not acknowledged and was not such an instrument as to authorize it to be recorded. Article 6626 Vernon’s Ann.Civ.St.

It has been textually stated that: “An instrument which is not acknowledged or proved for record as required by law is not entitled to be recorded.” 36 T.J. 439, Section 31. If it is recorded, the record is not constructive notice. Farmers Mut. Royalty Syndicate v. Isaacks, Tex.Civ.App., 138 S.W.2d 228. There is not any probative evidence that appellee or his predecessor in title had actual notice. Appellee testified positively that he had no notice of the existence of Defendants’ Exhibit I until the trial of the case. In so far as the record here is concerned, the appellants never advised appellee or his mother of the existence of the instrument. Additionally, both her son, while a minor, and her son-in-law rented the land from Mrs. Dickinson, with appellee acting as his mother’s agent and Mrs. Golta Tandy herself attorned to Mrs. Dickinson as owner during the limitation period by the payment of rent for grass and stubble land for grazing about 1951 or 1952. She admitted from the witness stand that she never at any time made any claim to appellee or his mother until the trial of this case, though she lived on the same section during part of the time. The trial court found as a fact that Charles P. Dickinson had no notice either actual or constructive of any claim being made by W. E. Tandy or any of the defendants and that there is not sufficient evidence that Esther Patten Dickinson, prior or during the time she claimed the land, had any notice, either actual or constructive, of any claim being made by W. E. Tandy or any of the defendants by virtue of Defendants’ Exhibit I. He also found that no claim was ever made to the land in controversy by any of the defendants, or anyone acting for them, prior to the filing of this suit other than that of tenant. None of these findings have been challenged by a proper point nor have “specified further, additional, or amended findings been requested” under Rule 298-V.A.T.R.

In addition to the court’s conclusions that any claim of the defendants was barred by the 10-year statute of limitations as contained in Article 5510 and other articles of Title 91, Vernon’s Ann.Civ.St., he also concluded that defendants were equitably es-topped from claiming title by virtue of Defendants’ Exhibit I “which was executed more than 26 years prior to any positive action by the said defendants.” He also found appellants were barred by the 5-year statute of limitations.

We believe the findings of fact and conclusions of law concerning the 10-year limitation question is decisive in the case and cannot see that any purpose would be served by writing on the other questions. Accordingly, the judgment of the trial court is in all things affirmed.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    PIONEER NATURAL GAS COMPANY, Appellant, v. Dena Nevil MYRICK et al., Appellees.
    No. 7267.
    Court of Civil Appeals of Texas. Amarillo.
    June 17, 1963.
    Rehearing Denied Sept. 3,1963.

      Gibson, Ochsner, Harlan, Kinney & Morris, K. B. Watson, Amarillo, for appellant.
    Simon & Simon, Fort Worth, Stovall & Stovall, Floydada, for appellees.
   NORTHCUTT, Justice.

This is a venue case. Dena Nevil Myrick, et al., as plaintiffs brought this suit in the District Court of Floyd County against Pioneer Natural Gas Company, a corporation, as defendant to recover damages for the death of Henry D. Myrick. Pioneer Natural Gas Company filed its Plea of Privilege seeking to remove the case to Potter County where it maintains its main office. The plaintiffs filed their controverting plea seeking to hold venue in Floyd County under Sections 9a and 23 of Article 1995 T.R.C.S. After a hearing on the plea, the trial court overruled the Plea of Privilege and it is from that ruling the defendant perfected this appeal. Hereafter plaintiffs will be referred to as appellees and the defendant as appellant. Appellant presents this appeal upon one point of error contending the ap-pellees failed to prove the facts necessary to sustain venue in Floyd County under any exception of Article 1995, Vernon’s Annotated Texas Civil Statutes. Since we are of the opinion appellees were entitled to maintain venue in Floyd County under Section 23 of Article 1995, we will limit our discussion to that exception. It is there provided that suits against a corporation may be brought in the county in which the cause of action or a part thereof arose; or in the county in which the plaintiff resided at the time of the cause of action or a part thereof arose, provided such corporation has an agency or representative in such county.

Some of appellees resided in Floyd County at the time in question. It was stipulated that appellant was a corporation. Ralph Mardis was the agent and representative of appellant in Floyd County at the time in question. Then the only thing to be determined is whether there was sufficient proof that the cause of action or a part thereof arose in Floyd County. In other words, did appellees introduce sufficient evidence to prove negligence and such negligence was a proximate cause of the injuries alleged. Menefee Street, where this action happened, had been a through street but had been changed whereby anyone traveling the street to reach the highway had to make a left angle turn and leave Menefee Street as the change had made Menefee Street a dead-end street.

On the night in question Henry Myrick was backing his car on Menefee Street to make a turn and backed into and against the gas meter, breaking the same and causing gas to escape and the gas caught fire and Myrick was burned from which burns he died a few days later. Appellees alleged appellant was negligent in locating and maintaining the gas meter adjacent to or in close proximity to the King’s driveway as to create a dangerous hazard; in locating and maintaining such gas meter and so situated with reference to Menefee Street as to create a hazard; in failing to place a guard around the meter for protection of the traffic public; in failing to properly install the meter; in failing to place any visible warning devices upon the gas meter; in failing to relocate the meter after the change in the street; in locating the meter in a manner hazardous to the general public; in failing to provide a light or illuminous markings to make the meter visible to persons traveling and driving so they could avoid contact with the same and the manner in which the meter was constructed and located created a nuisance per se and was in violation of appellant’s duty to the deceased and/or the traffic public and that the creation of such nuisance was an act of negligence per se which was a proximate cause of the injuries.

There was testimony that there was no sidewalk at the place in question but the meter was located in the area between the street and the sidewalk, if there had been a sidewalk. When the street was first changed several people each day would start down Menefee Street and have to back out but later there were not many making the mistake; the meter had been knocked down once before; one witness had placed rocks at the meter to keep persons from backing into it; two witnesses testified as to the dangerous condition where it was located; there were no signs to notify anyone of its location and no guards were placed around it. There were pictures showing the conditions of the street and meter as located. The appellant offered no evidence, only such .as was produced by cross examination of .appellees’ witnesses.

We held in Plains Transport, Inc. v. Parker, Tex.Civ.App., 359 S.W.2d 556 (writ •dismissed) as follows:

“It is stated in the case of Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, by the Supreme Court as follows:
“ ‘It is well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by ■circumstantial as well as direct evidence. See English v. Miller, Tex.Civ.App., 43 S.W.2d 642 (wr. ref.); Henry v. Publix Theatres Corp., Tex.Civ.App., 25 S.W.2d 695 (wr. ref.). The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded under the provisions of Rule 301, [T.R. C.P.] therefore, if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same.’
“In this case the judge heard the evidence without a jury and his findings would be given the same effect as the findings of a jury.
“See also the case of Austin Road Company et al. v. Willman et al., Tex.Civ.App., 303 S.W.2d 878 as it is stated:
“ ‘To maintain venue when a defendant has filed a plea of privilege, all the plaintiff is required to do is make out a prima facie case, and if the evidence is sufficient to support a finding in favor of the plaintiff in the absence of any evidence by the defendant, then it is proper to overrule the plea of privilege. Austin Bros. v. Sill, Tex.Civ.App., 83 S.W.2d 716; Stephens v. Coppock, Tex.Civ.App., 212 S.W.2d 879; Clay v. Moore, Tex.Civ.App., 175 S.W.2d 433; Holton v. Hutchinson, Tex.Civ.App., 90 S.W.2d 1103.
“ ‘The evidence as to point of impact, skid marks, damage to the respective vehicles, the course and distance traveled by each after the impact, the other physical facts testified to by the officer, the statement by Williams to the officer that he ran into the plaintiffs’ car, and evidence from which the court could infer that plaintiffs’ car was in its proper lane of travel proceeding at a speed of about 50 miles per hour when the car was hit in the rear by the truck were, in our opinion, sufficient to raise issues as to one or more of the thirteen acts of negligence alleged by plaintiffs.
“ ‘The evidence of the physical facts was of some probative force. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407; Chapman v. Evans, Tex.Civ.App., 186 S.W.2d 827.
“ ‘Both negligence and proximate cause may be inferred from circumstances. Bock v. Fellman Dry Goods Co., Tex.Com.App., 212 S.W. 635; Renshaw v. Countess, Tex.Civ.App., 289 S.W.2d 621.
“ ‘Under the record, and bearing in mind the defendants offered no evidence, we are of the opinion the trial court as trier of the facts could reasonably infer from all the circumstances that defendant Williams was negligent and that such negligence was a proximate cause.’ ”

See also Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675 (opinion adopted by Sup.Ct.).

Considering the evidence introduced and the circumstances proven, we are of the opinion there was sufficient evidence to sustain the holding of the trial court. Judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    Mattie FARRIS, Appellant, v. J. E. MAISEN et al., Appellees.
    No. 7266.
    Court of Civil Appeals of Texas. Amarillo.
    June 3, 1963.
    Brock, Wright, Waters & Galey, Lubbock, for appellant.
    Leo S. Hay, Lubbock, for appellees.
   DENTON, Chief Justice.

This is a usury case. The suit was brought by Mattie Farris, appellant, against J. E. Maisen and McFarland-Maisen Mortgage Company, Inc., to cancel a deed of trust and mortgage on property owned by the appellant upon the ground the consideration was usurious. Appellant further alleged damages and sought recovery of overpayment of the debt. Appellees filed a cross-action for the principal and interest due on the note and for foreclosure of their lien. The case was tried before a jury, but at the close of the plaintiff’s evidence, the trial court instructed a verdict against appellant and rendered judgment foreclosing-the deed of trust and awarding appellees recovery of $8,337.77.

The installment note and deed of trust which forms the basis of this suit were dated February 1, 1960, in the principal sum of $8,039.60, and bore interest at the rate of ten per cent per annum. Although the note does not specifically so state, it is undisputed the note was given in renewal and extension of other notes and deeds of trust previously executed by appellant in favor of appellees. This indebtedness covered several transactions between the parties over a period of years from 1949 until the note of February, 1960, was executed. The latter note and deed of trust were executed for the purpose of bringing the account up to date and to consolidate all past-due principal and interest into a current note and deed of trust.

Appellant’s first point of error complains of the trial court excluding evidence which was offered to show the deed of trust was based upon usurious interest. Appellant offered into evidence photostatic copies of the ledger sheets maintained by the appellees for the years 1949 through 1959. These ledger sheets contained the complete record of the transactions had between the parties, that is: the advancements made by the ap-pellees to the appellant, payments made by appellant, the computation of interest, and the balances owed by appellant. The trial court refused to permit the ledger sheets to be introduced into evidence, but they are before this Court by bill of exception. At the trial appellees objected to the introduction of these ledger sheets on the ground no predicate had been laid, and on the further ground no “infirmity” in the deed of trust and note had been shown.

It is our opinion that although the note and deed of trust appear regular on their face, the ledger sheets were admissible and were proper evidence for the jury’s consideration. The issue of usury is generally one of fact, and where the note does not show usury upon its face, the question is one for the jury. Ware v. Wright, (Tex.Civ.App.), 266 S.W.2d 188; Southwestern Inv. Co. v. Green, (Tex.Civ.App.), 19 S.W.2d 102; 42 Tex.Jur., Section 88, page 988. In effect, appellant pleaded the note and deed of trust were usurious in that more than ten per cent per annum interest was charged and demanded by appellees, and that appellant was being charged with sums she did not owe. These allegations could not be proved by the note and deed of trust alone. In Southern Home Building & Loan Ass’n v. Winans, 24 Tex.Civ.App. 544, 60 S.W. 825, the court held as follows:

“Under the plea of usury, like under the plea of fraud, accident, or mistake, the real transaction may be proved by oral evidence, notwithstanding it varies, contradicts, or even destroys the written contract; and this is too well settled to require the citation of authorities. If the rule were otherwise, the cunning devices and schemes of the usurer could never be exposed, and the law against his grasping avarice would remain a dead letter upon our statute books.”

See also Interstate Savings & Trust Co. v. Hornsby, (Tex.Civ.App.), 146 S.W. 960, (Writ Dismissed); and General Southwestern Corporation v. State of Texas, (Tex.Civ.App.), 333 S.W.2d 164, (Refused, NRE); National Bond & Investment Company v. Atkinson, (Tex.Civ.App.), 254 S.W.2d 885, (Error Dismissed). Stated in another way, the court in Peightal v. Cotton States Bldg. Co., 25 Tex.Civ.App. 390, 61 S.W. 428, used the following language:

“And we understand the law to be firmly settled that any evidence surrounding and so connected with a transaction as will throw light upon it, and disclose, or tend reasonably to show, its true character, is admissible upon the issue of usury, although the contract is in writing, and appears upon its face fair and legal.”

In our opinion the ledger sheets were clearly admissible upon the issue of usury. Even though the note called for a legal rate of interest, the method and manner of calculating the interest went to the very crux of appellant’s cause of action. Whether or not usurious rate of interest was charged can be determined only by the actual calculations made. This in turn can be determined only by the ledger sheets which show these calculations. It is quite obvious from this record that appellant was delinquent in discharging her obligation under the notes and deeds of trust. However, that question is not material here in disposing of this first point of error. We cannot require appellant to assume her burden of proving usurious interest and at the same time exclude material evidence offered for the purpose of showing how the holder of the note calculated the interest thereon. In our opinion the exclusion of the ledger sheets was contrary to the settled rule of this state. We conclude the trial court erred in refusing to admit this evidence and in peremptorily instructing the jury to find for defendant. In view of this holding, we deem it unnecessary to pass on the remaining points of error.

The judgment of the trial court is accordingly reversed and the cause is remanded.

Reversed and remanded.


text:
    J. O. BOOTHE, Appellant, v. Harry H. SCHULTZ et al., Appellees.
    No. 7302.
    Court of Civil Appeals of Texas. Amarillo.
    May 13, 1963.
    Rehearing Denied June 10,1963.
    Splawn & Maner, Lubbock, for petitioner.
    Culton, Morgan, Britain & White, Amarillo, Cowsert & Bybee, Hereford, for respondents.
   NORTHCUTT, Justice.

Delmar Durrett filed suit in the District Court of Deaf Smith County, Texas, against J. O. Boothe, G. W. Simmons, E. A. Edwards, and J. G. Evans on a promissory-note styled Delmar Durrett v. G. W. Simmons, et al., No. 4249 on the docket of the District Court of Deaf Smith County, Texas, and J. O. Boothe filed a cross action in said case against the said Delmar Durrett, G. W. Simmons, E. A. Edwards, and J. G. Evans. The District Court of Deaf Smith County, Texas, entered judgment by default in favor of Delmar Durrett, plaintiff, against J. O. Boothe. G. W. Simmons, E. A. Edwards, and J. G. Evans on said note and dismissed the cross action of the said J. O. Boothe for want of prosecution.

Thereafter this court reversed and remanded said case; whereupon, Delmar Durrett, G. W. Simmons, E. A. Edwards, and J. G. Evans filed an application for writ of error in the Supreme Court of the State of Texas, and the Supreme Court of the State of Texas denied such application for writ of error, and in May of 1961 overruled the motion for rehearing on said application for writ of error.

No mandate has ever been issued by this court in said cause. The clerk of this court executed and issued a certificate on March 5, 1963, reciting that this court reversed and remanded this case on December 12, 1960, and that no mandate was taken out in said cause which certificate was filed in the District Court of Deaf Smith County, Texas, on March 6, 1963. Prior to the filing of the certificate issued by the clerk of this court, the trial court had dismissed Boothe’s cross action for the want of prosecution; but after the certificate of the clerk was filed in the District Court in Cause No. 4249 showing no mandate had been issued, the trial judge took further action as hereafter stated.

On April 3, 1963, the Honorable Harry H. Schultz, District Judge of Deaf Smith County, Texas, entered an order dismissing said Cause No. 4249 under Rule 445 of the Texas Rules of Civil Procedure, which order reads as follows:

It appearing to the Court that final judgment entered in this cause was appealed to the Court of Civil Appeals for the Seventh Supreme Judicial District of Texas, as cause number 7006 on the docket of said Court, and the Court of Civil Appeals reversed and remanded this cause; and thereafter, a Petition For Writ of Error to the Supreme Court of Texas was denied, and a Motion For Rehearing on said Petition For Writ of Error was overruled on May 1, 1961; and it further appearing to the Court that no Mandate was taken out and filed in this Court within one year after said Motion For Rehearing was overruled by the Supreme Court of Texas, as required by Rule 445 of the Rules of Civil Procedure of the State of Texas; it further appearing to the Court that a certificate of Elmo Payne, Clerk of said Court of Civil Appeals, dated March 5, 1963, was filed herein on March 6, 1963, reciting that this cause was reversed and remanded by said Court of Civil Appeals on December 12, 1960, and that no Mandate has been taken out in said cause;
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this cause be, and the same is hereby dismissed from the docket, pursuant to said Rule 445.
/s/ Harry H. Schultz Judge of the District Court of Deaf Smith County, Texas”

On March 9, 1963, J. O. Boothe filed in this court his motion for leave to file petition for mandamus and such request was granted by this court. In Boothe’s petition for writ of mandamus, he requested that on hearing of such writ that mandamus issue ordering and commanding Judge Schultz to expunge from the records of the District Court of Deaf Smith County, Texas, in Cause No. 4249 an order of dismissal and that said Cause be transferred from the District Court of Deaf Smith County to the District Court of another judge in order that J. O. Boothe might have a trial on his cross action and the action filed against him by respondent, Durrett.

We are of the opinion, and so hold, that the judgment of dismissal by the trial court is sustained by the record. Rule 443, Texas Rules of Civil Procedure, provides as follows:

“On the rendition of a final judgment or decree in the Court of Civil Appeals, the clerk of said court shall not issue and deliver the mandate of the court nor certify the proceedings to the lower court until all costs accruing in the case in such appellate court have been paid, subject to the provisions of Rule 444.”

Rule 444 concerns the making of affidavit of inability to pay the cost or give security therefor. The costs were not all paid on the original appeal here referred to. Rule 445, Texas Rules of Civil Procedure provides :

“In cases which have been reversed and remanded by a Court of Civil Appeals, if no mandate shall have been taken out and filed in the court where the cause originated within one year after motion for rehearing is overruled or final judgment rendered, then upon the filingjn the court below of a certificate of the clerk of the Court of Civil Appeals where the cause was pending that no mandate has been taken out, the case shall be dismissed from the docket.”

It is to be noticed that said rule provides that the case shall be dismissed and does not say may be dismissed. The requirement of the rule last quoted has been held to be mandatory and to require a dismissal of the cause in the absence of the issuance of a mandate. Parker v. Bailey, Tex.Civ.App., 286 S.W.2d 651; Davy Burnt Clay Ballast Co. v. St. Louis S. W. Ry. Co. of Texas, Tex.Civ.App., 32 S.W.2d 209, affirmed by the Supreme Court in 119 Tex. 455, 32 S.W.2d 822; Williams v. Creighton, Tex.Civ.App., 147 S.W.2d 274.

Neither of the parties in the former appeal here and above mentioned ever at any time took the proper steps to have the mandate issued and filed in the District Court of Deaf Smith County, Texas, and when the clerk of this court issued a certificate showing that no mandate had been issued within the time required and such certificate was filed in said Cause No. 4249 of the District Court of Deaf Smith County, Texas, the trial judge had no other alternative than to dismiss the case, which he did.

Application for writ of mandamus is here denied.


author: WERLEIN, Justice.

text:
    Henry C. MAYHEW, Appellant, v. Kenneth H. VANWAY et al., Appellees.
    No. 14186.
    Court of Civil Appeals of Texas. Houston.
    Oct. 3, 1963.

      Eastham, Meyer & Moore, Thomas W. Moore, Jr., Geo. D. Neal, Houston, for appellant.
    James E. Winborn, M. G. Byerly, Houston, for appellees.
   WERLEIN, Justice.

This suit was brought by appellant against appellees, Kenneth H. Vanway, for ■exemplary damages, and Reveille Woods Christian Church, a corporation, to recover damages for alleged breach of a contract of employment entered into by and between appellant and the Church on February 5, 1958, wherein the Church employed appellant as minister for the term of seven years from and beginning the 21st day of July, 1957. From a “take nothing” judgment entered by the court, without the intervention of a jury, appellant has duly appealed.. Appellant’s brief states that the parties agreed in chambers to limit appellant’s cause of action to the recovery of damages for breach of contract by the Church.'

The contract, after providing for the remuneration to be paid appellant, and other matters not pertinent hereto, provides three ways in which the Church might terminate the same under the following paragraphs thereof:

“7. If the Minister shall at any time be incapacitated by illness, or otherwise be kept from performing his duties as Minister for three consecutive calendar months, the official board may upon ninety days’ written notice to the Minister terminate this contract; further, the Minister may terminate this agreement by giving three calendar months’ notice in writing to the Official Board of the Church.
⅜ ⅜ ⅜ ⅜ ⅜ jfc
“9. The said parties to this contract reserve the right, with mutual CONSENT to amend this contract as shall be agreed on. This contract may be dissolved by the mutual consent of both parties hereto.
******
“11. It is further agreed that this contract can be declared null and void by a majority vote of the active Church members two (2) years from effective date.”

The Church undertook to annul and void the contract by a majority vote of the active members thereof on or about July 16, 1961, which was approximately four years from and after the effective date of the contract, the discharge to be effective as of October 13, 1961.

The matter before this Court for determination is the construction of paragraph 11 of said contract. Appellant contends that such provision must be construed to mean that the Church may declare the contract null and void by a majority vote of the active members at the expiration of two years from the effective date of the contract and not thereafter. The trial court, by not allowing any damages whatever, though some were proved, evidently decided as a matter of law that the provision in question gave the Church the right to declare the contract null and void at any time after the expiration of two years from the effective date.

The contract is for seven years beginning July 21, 1957, which admittedly is its effective date. Under paragraph 7 of the contract the Church is protected in the event the minister becomes incapacitated by illness or is otherwise kept from performing his duties as minister for three consecutive calendar months. The additional provision contained in paragraph 11 of the contract gives the Church the right to declare the contract null and void, without any reason whatsoever for doing so, two years from its effective date. Two years from the effective date of the contract was July 21, 1959. This provision in effect gives the Church an option which it could exercise two years from the effective date of the contract. Failure to exercise such option at the time specified or, according to some authorities, within a reasonable time thereafter, would permit the contract to continue in force for the remainder of the seven year term subject to termination under the other provisions of the contract. The option to terminate the contract is in the nature of a forfeiture and should be strictly construed. Fred Mosher Grain v. Kansas Co-op. Wheat Marketing Ass’n (1932), 136 Kan. 269, 15 P.2d 421.

It is elementary that this Court cannot write a contract for the parties. If it had been intended by them that the contract could be declared null and void at any time from and .after the expiration of two years from the effective date, it would have been a simple matter to so provide. This the parties did not do. They stipulated that two years from the effective date, July 21, 1957, the Church could declare the contract null and void. No reason is assigned for agreeing to the option which was for the benefit of the Church and which gave the Church the privilege of terminating the seven year contract two years from its effective date.

While we have not found or been cited to any authority directly in point, there are numerous authorities which support appellant’s contention. In Farmers & Mechanics National Bank v. Central Guaranty Co., Tex.Civ.App.1922, 241 S.W. 600, the San Antonio Court of Civil Appeals held that where the parties entered into a five year contract for a subscription to a bank directory which provided that the subscription began July 1, 1916 and ended July 1, 1921, and reserved to the subscriber the privilege to cancel “at the end of the first year,” any attempt to cancel the contract on July 9, 1917, which was some eight days after the end of the first year, was too late. The court said: “The parties must be held bound as they bound themselves.”

The Superior Court of Pennsylvania, in Central Guaranty Co. v. Union National Bank, 92 Pa.Super. 70, which cites Farmers & Mechanics National Bank v. Central Guaranty Co., supra, held that where a five year contract for a subscription to a bank directory, which provided that the “subscription commences 7-1-22” and “subscription ends 7-1-27” and also provided that it was subject to cancellation “at the end of the first year,” an attempt to cancel the contract on July 11, 1923, being more than one year after the effective date of the contract, was too late. See also Railway Advertising Co. v. Posner, 35 Misc. 285, 71 N.Y.S. 742.

In Central Guarantee Co. v. Fourth & Central Trust Company, 244 Ill.App. 61, at page 65, the court said:

“The phrase ‘at the end of’ or ‘at the expiration of’ does not always necessarily imply that action must take place on the day of expiration in order to be a literal compliance with the contract. The word ‘at’ is not invariably used to denote a fixed and definite time. It sometimes may be used to mean ‘about’ or ‘after.’ ”

The court held that the holder of the option to terminate could cancel within “a reasonable time” after the cancellation date. The court further said:

“When one undertakes to pay a note or do a certain thing ‘at’ a certain definite date, the word undoubtedly means on the date named and not afterwards; but in the present circumstances where it made no difference to plaintiff whether defendant exercised the right of cancellation on or before December 31, 1920, or in March, 1921, we hold the cancellation to be within the provisions of the contract. We would have a different question to determine had plaintiff not received payment for the directory for 1921.”

In Feree v. Moquin-Offerman-Hessenbuttel Coal Co., 29 Misc. 624, 61 N.Y.S. 120, the court held, where an advertising purchase contract provided that it “may be discontinued in three months,” that it could not be discontinued or terminated the fourth month. The court, among other things, stated:

“To support that (Defendant’s contention) would unwarrantably invest ‘in’ with the meaning ‘at any time after,’ for the notice of discontinuance was admittedly not sent until the fourth month. The appellant, adopting the definition ‘at the expiration of,’ unreasonably extends it by adding, in effect, the word ‘and at all times thereafter,’ so as to carry the option through the remaining nine months of the contract.”

In the instant case the appellee is undertaking to extend the option or privilege which it had the right to exercise two years from the effective date of the contract, or on July 21, 1959, through the remaining five years of the contract. There seems to be no real difference in the language “two years from its effective date” and the phrase “at the end of the first two years.” Had this latter language been used, this case would come squarely within the holding of Farmers & Mechanics National Bank v. Central Guaranty Co., supra, and similar cases.

It is our view that the option in question had to be exercised by the appellee two years from the effective date or, in any event, within a reasonable time thereafter, and that such option does not extend through the entire remaining five years of the life of the contract. The provision, being in the nature of a forfeiture, should be strictly construed. It is not necessary for us to determine whether the option had to be exercised immediately at the end of the two year period or within a reasonable time thereafter, since in the instant case the Church did not undertake to exercise such option until approximately four years from and after the effective date of the contract. We hold, as a matter of law, that the attempted exercise of the option nearly two years after the expiration of the two years from the effective date of the contract, was not within a reasonable time.

In Bennett’s, Inc. v. Krogh, 1946, 115 Colo. 18, 168 P.2d 554, 164 A.L.R. 1010, the contract in question granted the privilege of collecting garbage from the plaintiff’s cafeteria for a term of five years, but reserved to the plaintiff the option of can-celling the contract at the end of six months upon giving thirty days notice. The court held that notice and attempted cancellation after a delay of fourteen months beyond the time provided in the contract was, as a matter of law, not within a reasonable time, •even under a construction of the contract which would authorize cancellation within a reasonable time after the termination. See Annotations under Bennett’s, Inc. v. Krogh, 164 A.L.R. 1010, in which numerous cases are cited in which it was held that an ■option to cancel must be exercised at a time specified in the contract, and also cases in which it was held that the option may be exercised within a reasonable time after the time specified in the contract. See also Central Guarantee Co. v. National Bank of Tacoma, 1925, 137 Wash. 24, 241 P. 285, 45 A.L.R. 721; 17A C.J.S. Contracts § 402, p. 489.

We quote the following statement from Corbin on Contracts, 1950, Vol. 6, p. 65, Sec. 1266:

“A provision that a party may terminate the contract by giving notice at the end of a six months trial differs from one that empowers termination at any time after six months; in the former case it is clear that the power is limited to a reasonable time after the six months and this time would usually be so short as to be no more than would be included by the word ‘promptly.’ ”

We mention, by way of analogy, that an ■option to terminate a lease must be exercised within the time permitted by the terms thereof or within a reasonable time thereafter. 32 Amer.Jur., p. 709, Landlord and Tenant, Sec. 832. Also, time is of the essence of the contract providing for the giving of notice of rejection of a purchase, and the purchaser loses his right to return the goods if he fails to give notice in time. 46 Amer.Jur., p. 659, Sales, Sec. 497.

The contract in question was for seven years, beginning July 21, 1957. But for the wrongful cancellation of the contract, it would have continued in force to July 21, 1964. This suit was filed March 28, 1960, and the trial began October 15, 1962. There is evidence in the record that appellant made, from the date October 13, 1961, when the alleged termination of the contract was to become effective, down to the time of trial, the sum of $65.00 and no more. There is evidence, which is not altogether clear, to the effect that in August or September, 1962, or some later date, appellant saw Mr. Bailey, the secretary of the Gulf Coast Christian Churches, and applied for a regular pastorate in some church, and none was available. The evidence also shows that appellant was advised that Mr. Bailey had a number of calls for interim pastorates. The evidence is insuf-' ficient to show that appellant made any effort to obtain employment in any of such interim pastorates and it is difficult to ascertain from the record just what diligence appellant exercised to obtain employment. There is nothing in the record to the effect that appellant would not be able to obtain employment from the date the case went to trial to the time the contract would expire but for the wrongful termination thereof. The contract provides for a fixed salary payable to appellant in the sum of $4,380.00 annually and also for a $75.00 monthly parsonage allowance. It further provides for an allowance of automobile expense of $50.00 per month, which expense appellant did not incur because of his discharge. It further provides that the Church will maintain membership in the Disciples of Christ Pension Fund, and shall keep the membership account therein current and paid up, but there is nothing to show what appellant lost with respect thereto as a result of his discharge.

In our opinion appellant established that he sustained some loss, but he failed to develop the full amount of damages that he might possibly have been entitled to recover. The case has not been fully developed. In the event of another trial, any future amounts recovered as salary should be discounted to their present worth. See Dixie Glass Co. v. Poliak, Tex.Civ.App., 341 S.W.2d 530, writ ref., n. r. e.

Reversed and remanded.


author: WILLIAMS, Justice.

text:
    In re ESTATE of Alfred ROSENFIELD, Jr., Deceased.
    No. 16083.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 23, 1962.
    Rehearing Denied Dec. 14, 1962.
    Joe B. Brown, Jr., Dallas, for appellant..
    Lawrence Vance, Dallas, for appellee.
   WILLIAMS, Justice.

Supplemental transcript having been-filed to perfect the record, the former opinion of this court is withdrawn, and the-following substituted therefor:

The Probate Court of Dallas County appointed Irene Rosenfield as administratrix of the Estate of Alfred Rosenfield, Jr., who-had died intestate in 1953. The Adminis-tratrix filed an inventory and appraisement of the Estate but no further action appears-of record until September 11th, 1958 when-the Probate Court removed Irene Rosen-field for failure to file an annual exhibit and account. On said date, Joe B. Brown,. Jr. was appointed Successor Administrator of said Estate. Such Successor Administrator filed an annual account, same being approved by the Probate Court. From such order an appeal was taken to the District Court. From the order of the District Court the Successor Administrator brings this appeal.

The Rules governing appeal from the Probate Court to the District Court are succinctly stated in 19 Tex.Jur.2d § 1068, pp. 119-122, and Rules 332-33S, Texas Rules of Civil Procedure (prior to amendments effective September 1st, 1962). Appeals to the District Court relating to estates of decedents are by trial de novo and are governed by the same rules as in other civil cases in the District Courts. Hillhouse v. Allumbaugh, Tex.Civ.App., 238 S.W.2d 799; Pruett v. Hamilton, Tex.Civ.App., 263 S.W.2d 193. Being a trial de novo it was encumbent upon the Successor Administrator in this case to establish by competent evidence in the District Court the essential facts supporting his annual accounting as well as facts supporting his request for fees. In the District Court the only testimony introduced was a stipulation by counsel that the final accounting of the Successor Administrator (with the exception of one paragraph thereof) would be accepted as true. The inventory and appraisement previously filed by the original administratrix was also accepted in evidence without objection.

Successor Administrator assails the finding of the District Court that the furniture and fixtures of the estate were of the value of $150, holding Irene Rosenfield, the former administratrix, and the sureties on her bond, accountable for $150. We sustain this point. The only evidence before the District Court concerning value of the community property was the inventory and appraisement which listed the furniture and fixtures as having the value of $500. It was also stipulated that the Successor Administrator had been unable to locate the furniture and fixtures described in the inventory, same having the value ei $500. There is nothing in this record to support the finding of the trial court to the effect that said property had the value of $150.

Successor Administrator also contends that the District Court erred in granting Joe B. Brown, Jr. an attorney’s fee of $150 for his services. We sustained this point. There is no evidence in this record that the Successor Administrator requested or secured the services of an attorney to represent him in this matter. Moreover, there is no evidence concerning the amount of work performed by such attorney, if any, or the reasonable value of such services. Without supporting evidence the trial court was without authority to make such arbitrary finding.

Finally, Successor Administrator contends that “The District Court erred in denying an allowance to the Successor Administrator as compensation for his services in securing the information and preparing the account and exhibit on behalf of the former administratrix.” Perforce, Rule 224, Probate Code, V.A.T.S., a Successor Administrator is clothed with all rights, powers and duties of his predecessor and is required to account for all of the estate which came into the hands of his predecessor and shall be entitled to any order and remedy to which the court has power to give in order to enforce a delivery of the estate and the liability of the sureties of his predecessor for so much as is not delivered. Furthermore, Rule 245 of the Probate Code provides that upon neglect of the performance of the duties required any cost that is necessarily incurred is chargeable against such representative and his sureties on his bond. While, in our opinion, there is no question but that the Successor Administrator in this case was entitled to reasonable fee for services rendered by him in securing information and preparing the final account which had not been filed by the original administratrix, yet it was encumbent upon Successor Ad-ministra tor, in the de novo trial in the District Court, to introduce testimony not only as to the amount of services performed by him in the performance of his duties but also the reasonable amount of such claimed fee therefor. In this instance the Successor Administrator tendered no evidence whatsoever concerning the amount of work done by him nor the reasonable value therefor.

In the interest of justice this case should be reversed and remanded for a new trial.

Reversed and remanded.


author: CLAYTON, Justice.

text:
    ABILENE CHRISTIAN COLLEGE, Appellant, v. Roy LANDERS, Administrator, et al., Appellees.
    No. 5575.
    Court of Civil Appeals of Texas. El Paso.
    Aug. 7, 1963.
    Rehearing Denied Sept. 11, 1963.

      McMahon, Smart, Sprain, Wilson & Camp, Hudson Smart, Abilene, Turpin, Kerr, Smith & Dyer, William L. Kerr, Sam B. Cobb, Jr., Midland, Maurice R. Bullock, Thomas R. Scott, James R. Kerr, Ft. Stockton, for appellant.
    Claude H. Gilmer, Rocksprings, Pierce Stevenson, Austin, Coke Stevenson, Junction, Gaynor Kendall, Austin, Guinn & Guinn, El Paso, for appellees.
   CLAYTON, Justice.

On December 15, 1954, William M. Edwards, a bachelor, then some seventy-eight years of age, signed three instruments which Appellant, Abilene Christian College, claims conveyed to it some 41,824.7 acres of land in Pecos and Terrell Counties, Texas. The first of these instruments was a contract between Edwards and Appellant, and the other two instruments (which implemented this contract) were warranty deeds from Edwards to Appellant which together covered this land, subject to certain indebtedness, liens and outstanding mineral leases, etc., and reserving a life estate in the grantor. Edwards also held three notes representing part payment due him on a prior mineral grant on a portion of the land purportedly conveyed on December 15, 1954. The contract between Edwards and the appellant provided that as consideration for the two conveyances Edwards was to receive from appellant $50,-000.00 a year, beginning on December 15, 1955 and continuing each December 15 thereafter so long as any of the existing indebtedness against the two tracts of land described in the conveyances remained unpaid. These $50,000.00 payments were to be applied in full toward retirement of such debts. Furthermore, the payments under the three notes arising from the mineral grant were to be applied to the indebtedness against the property, and should the minerals be reacquired by Edwards through foreclosure or otherwise, the ownership of such minerals was to vest in appellant, subject, however, to Edwards’ life estate, which entitled him to rent or lease all of said lands for grazing, agricultural or mineral purposes under such terms as he might desire, and to receive and retain any proceeds therefrom, as well as the proceeds from all existing leases. Edwards was given the option of applying any such proceeds to existing indebtedness against the land, in which case such payments were to inure to the benefit of appellant as a gift from Edwards.

There were four $50,000.00 payment checks made under this agreement prior to the death of Edwards, the first three, for the years 1955, 1956 and 1957, being made payable at Edwards’ request to J. C. Mitchell, the holder of the vendor’s lien notes on a parcel of property bought by Edwards from Mitchell and included in the deeds to Appellant. These checks were delivered to Edwards, who in turn personally delivered them to Mitchell. The fourth payment check for the year 1958 was made payable to Mitchell’s estate, he having died meanwhile, and was turned over to Edwards’ attorney for delivery, Edwards then being confined to the hospital.

Edwards died intestate on June 9, 1959 and in October 1959 this suit was brought by Appellant (plaintiff) in the form of Trespass to Try Title against Appellees (defendants) ; the administrator of the Edwards estate individually and in his official capacity and the other heirs at law of William M. Edwards. The Appellees set out in their answer to his suit substantially, and among other matters, that appellant, through its agents B. Sherrod and Dr. Don H. Morris, (hereinafter designated as agents or representatives) formulated a plan or scheme to obtain from Edwards for the benefit of Appellant all of Edwards’ property as a gift to Appellant, or for little or no consideration, and in furtherance of this plan the agents of Appellant exerted upon Edwards undue influence in securing his execution of the contract and deeds; that at the time of the execution of these instruments by Edwards he did not have the mental capacity to understand the nature, consequences and effect of the instruments he executed; that the said instruments were obtained by actual or constructive fraud and were invalid and void.

The case was submitted to a jury on special issues. The jury found that Edwards was of sound mind and had the mental capacity to understand the nature and effect of his acts when he executed the contract and deeds of December 15, 1954, but was caused to do so by the exercise upon him of undue influence and while under a false impression as to the nature and effect of the instruments, produced in his mind by the words and acts of the agents in order to obtain Edwards’ execution of such instruments (it being appellees’ contention that Edwards was led to believe that the instruments constituted only a mortgage or security for the assistance being given him by Appellant in attempting to pay off his debts in his lifetime).

In other findings the jury determined that on each of the three occasions when Edwards delivered the $50,000.00 checks to Mitchell to apply on his debt, Edwards was aware of the transaction of December 15, 1954 with Abilene Christian College, had mental capacity to understand the nature and effect of such act, but that his will was overcome and supplanted by the will of Abilene Christian College. On these findings, judgment was entered for appellees.

It seems to be uncontroverted that friends and officers of Appellant College devoted time and effort to soliciting “prospects” for gifts to the college. Mr. Edwards was such a “prospect”, whose name was suggested in 1947 to Dr. Don H. Morris, President of Appellant and one of Appellant’s agents. From that time until the documents were signed on December 15, 1954, Morris and one B. Sherrod, another of Appellant’s agents (Chairman of the Board of Directors or Trustees of Appellant college), either together or with others, visited Edwards some six or seven times. At first, no solicitation of gifts to the college was made of Mr. Edwards. Later, when Mr. Edwards was converting his ranching business from cattle to sheep, he was asked to allow the college to sell the cattle in return for a life-time annuity to be paid Mr. Edwards. Mr. Edwards refused the offer. He also refused a proposal that he make a will from which the college would benefit. In June of 1954 the agents of Appellant suggested to Mr. Edwards that he deed his land to the college in return for six per cent or seven per cent of its value to be paid Mr. Edwards in the form of an annuity. The latter replied that he wanted to live on the ranch the, rest of his life and that he was not interested in the proposal. In September of 1954 the college agents suggested to Mr. Edwards that he

“might deed the land to the college and retain a life estate in it, so that he could live on it and manage it and get all the income from it during his life, and that if he wanted to do that, the college would pay him $25,000.00 a year with the stipulation that it would apply on the indebtedness against the land”,

such payments to be exempt from income tax. Edwards replied that he would think about it.

In the latter part of November of the same year the agents again called on Mr. Edwards who stated that he had thought about the proposal “a lot” but suggested that the annuity to be applied on indebtedness against the ranch be $50,000.00 a year, and that he, Edwards, “would expect to keep up the fences and pay the taxes”. Mr. Edwards was told that the proposal would have to be taken up with the Executive Committee of the Board of Trustees of the college, to which Edwards replied: “Well, you discuss it with them and if you want to do this, if you want to pay me the $50,000.00 a year, you get your tax attorneys to prepare the papers and bring them back out and show them to me and I will submit these papers to my attorney, and then I will tell you what I will do.”

The agents thereafter received authorization to go forward with the proposal and had the tax attorney for the college prepare the contract and deeds. These instruments were then taken by the agents to Mr. Edwards on December 13, 1954. Mr. Edwards looked over the papers and stated that he would look them over again the next day and that on the following day the agents could meet him in his lawyer’s office (Judge Hart Johnson) to discuss them. Pursuant thereto, on December 15, 1954 they all met in Judge Johnson’s office and Edwards and his lawyer had a conference by themselves which lasted perhaps an hour. Edwards had told his attorney that he wanted the latter to check the papers “to see if his rights were fully protected in the matter”. He was particularly concerned to learn if his life estate was properly reserved in the deeds, as well as his interest in oil and gas leases, sales, bonuses and rentals. The attorney made suggestions and noted Mr. Edwards’ desires. Certain pages of the instruments were then rewritten in draft form and after all parties approved them these pages were put into final form and substituted for the corresponding pages of the original instruments, and the documents were then signed and acknowledged and the deeds placed of record.

Two other transactions were conducted by Mr. Edwards on the same-day the documents were signed: He arranged for a $15,000.00 loan from the Pecos County State Bank on his unsecured note and went to see an optometrist for an examination of his eyes and fitting of glasses.

Thereafter, when the $50,000.00 payments were made by Appellant, Edwards would meet Mr. Mitchell, to whom the first three checks were made payable at the request of Edwards, at the Sanderson State Bank in Sanderson, Texas, on January 2nd of each year, and would personally turn over the checks to him, paying the accrued interest from his own account and receiving the paid-up notes. As has been stated, the fourth check was made payable to Mitchell’s estate and given to Judge Hart Johnson for delivery, Edwards then being in the hospital.

On February 16, 1955, following the execution of the above instruments on December 15, 1954, Mr.' Edwards submitted a financial statement to the Pecos County State Bank at Fort Stockton, Texas, listing 41,839 acres of land in Pecos and Terrell Counties with title vested in the names of William M. Edwards and Abilene Christian College, and accompanied by the following letter:

“Wm. M. Edwards Box 126 Fort Stockton, Texas
February 16- 1955
“The Pecos County State Bank
Fort Stockton Texas
“Gentlemen—
“enclosed finde Finiacial Statement which I trust will meet with your aproval.
“I have deeded my Ranch to the Abiline Christian Collage Retaining life interest and full control. They to Pay me $50,000.00 on December 15 each year until the J. C. Mitchell & Banker Life Company notes or all Paid
“With Best Regards
“I am
“Your trily
/s/ Wm. M. Edwards”

On May 23, 1955 the bank granted Edwards a further unsecured loan of $5,000.00 with the knowledge of the financial statement and letter of February 16, 1955. Each time a loan was requested Mr. Edwards would give the bank a reason for its need, and the banker who approved the loans described the reasons as “sensible and reasonable, and rational.”

We have touched on the facts in this case in some detail in view of the position taken by Appellees that at the time of the execution of the contract and deeds Mr. Edwards did not have the mental capacity to understand the nature, consequences and effect of the instruments he executed, that he was acting under the compulsion of undue influence and that his will was supplanted by that of the agents or representatives of Abilene Christian College. The jury found that Edwards was of sound mind on December 15, 1954 when he executed the instruments in question, but that he was caused to do so by the exercise upon him of undue influence, and further, that the agents of Appellant intentionally produced in his mind a false impression as to the nature and effect of the instruments in order to obtain their execution by Edwards. We see in these findings a certain inconsistency in view of the definition in the trial court’s charge of the term “not of sound mind” as meaning that a person

“executing a contract and deed did not then have a mental ability sufficient to understand the nature and effect of his then acts.”

Under this definition the finding of the jury of “sound mind” seems to negative the further finding that there was produced in his mind a false impression as to the nature and effect of the instruments to be signed. Furthermore, the jury found that on each of the three yearly occasions of a delivery by Edwards to Mitchell of tile Appellant’s check for $50,000.00, Edwards was aware of the transaction of December 15, 1954 with Appellant, and that on each such occasion he had the mental capacity to understand the nature and effect of such act. But the jury went on to find that on each such occasion his will was supplanted by the will of the representatives of Abilene Christian College.

We have spoken of the repeated visits to and solicitations of Mr. Edwards by the agents of Appellant. Appellees have introduced testimony relative to certain perhaps unwise or improvident acts on the part of Edwards as evidencing a sort of senile degeneration which made him more susceptible to influence arising from repeated persuasions and importunities. For example, there was testimony that he bought ranch property during a drought year, borrowing money on other property he owned to do so and paying a price that might have been excessive. He also bought sheep when he was having to feed those he already had, and his method of feeding was such as to cause the loss of many of them. Other instances of what might amount to poor judgment are related. He apparently had suffered from arteriosclerosis and high blood pressure prior to the occurrence on October 25, 1958 of a “cerebral vascular accident”, from which he finally succumbed in 1959. A Dr. Lancaster, who treated him after this incident, testified that in his opinion he (Edwards)

“was not of sound mind for six to ten years prior to the onset of his final illness”,

and when asked his opinion as to

“whether William M. Edwards was on and after December 15, 1954 mentally capable of knowing and understanding the nature and effects of his acts ?” the doctor replied:
“It is my opinion that he was not capable of understanding these things after that time.”

A psychiatrist, who had not seen Edwards ■during the latter’s lifetime but who testified on the basis of hypothetical questions, stated that in his opinion Edwards, on December 15, 1954, was not

“capable of knowing and understanding the nature and effect and consequences of his acts”

and was a person of unsound mind on and after said date.

On the other hand, a Dr. Oswalt, a doctor of twenty-one years of practice and an associate of Dr. Lancaster who took over the treatment and observation of Edwards when Dr. Lancaster was out of town or not available, who examined and studied the medical and hospital charts and consulted with Dr. Lancaster on several occasions as to how Edwards was doing and what further measures might be taken, testified as follows:

“Q Doctor, in your opinion, would Dr. Lancaster, the attending physician in charge of that case have enough data before him to enable him to make any kind of a reliable diagnosis as to pre-existing mental conditions of the patient, as to his mental condition prior to the onset of his illness?
“A No. I don’t think so.
“Q In your opinion would it have been possible for any competent doctor to have diagnosed the prior mental condition, prior to the onset of that illness from what is shown by that record and from treatment of the patient and observation of him?
“A No.
* * * * * ⅜
“Q About how long, if you recall, had Dr. Lancaster been practicing at the time he had Mr. Edwards as a patient? Do you recall about how long that was, Dr. Oswalt?
“A About a year.”

Also, after having received certain facts set out in a hypothetical question, Dr. Os-walt made the following replies to the questions propounded to him:

“Q Now, Doctor, based on your study of the hospital records of Mr. Edwards, and Dr. Lancaster’s records of diagnosis and treatment of him, based on your own observation and treatment of Mr. Edwards when he was a patient during his last illness, based on your consultations with Dr. Lancaster during the time he was treating Mr. Edwards during his last illness, based on the exhibits and material in court which you have today examined, and based on the matters related to you in the hypothetical questions which I. have propounded to you, are you able to form and do you now have an opinion as to whether or not Mr. William M. Edwards was, on December 15, 1954, a person of sound or unsound mind?
* * * * * *
“A I do.
“Q What is such opinion?
“A I believe he was of sound mind.
“Q Based on all of the same data about which you have testified, and which you have examined, and about which we have inquired, are you able to form and do you now have an opinion as to whether or not, on that date, Mr. Edwards was or was not capable of knowing and understanding the nature and effect of his acts in transacting business?
* * * * * ⅜
“A I do.
“Q What is that opinion?
“A I think he was aware of the business proposition that he went through, and that he was aware of the financial obligation that he had assumed. I don’t see where, in what has been presented here, there is any reason to feel that he was not in full command of his faculties.
“Q Do you or do you not have an opinion as to whether or not he was then capable of knowing and understanding the nature and effect of his acts?
“A I think he was quite capable.
“Q Doctor, you have examined all of these instruments in the handwriting of Mr. Edwards, beginning with the tax returns — how far did you examine them?
“A About to 1951.
“Q About to 1951. Yes, 1951, and the financial statement and letter of 1955 and these checks in 1951, 1954, 1955, 1956 and 1958. From an examination of the firmness, or otherwise, of the signatures and the handwriting, as well as the manner in which these various instruments appear to have been filled out, are you able to form any professional opinion as to the extent of arteriosclerosis, as to the extent of the arteriosclerosis, the advancement of that disease, if such existed, as of the dates those instruments were written by the person who wrote them? Do those indicate anything to you in that connection, by examining them either singly or in series?
“A Well, they indicate that he had no involvement of his motor pathways. He doesn’t have any trem- or, which might be associated with diseased conditions of the brain. There is a consistency in the pressure exerted in the writing, which also would indicate that his perception of feeling was adequate for normal people. I see nothing there that would indicate that he had any condition that was rendering his motor faculties — in other words, that were interfering with them.”

At the expense of burdening the record, we have tried to give the gist of the testimony of the preceding witnesses in order to illustrate why we have reached the following conclusions:

We find ample evidence upon which the jury could base their finding of “sound mind” in answer to Special Issue No. 1, when Mr. Edwards executed on December IS, 1954 the contract and deeds in question. We find ample evidence to support the jury’s findings that on each of the three separate occasions on January 2, 1956, 1957 and 1958, when Mr. Edwards traveled, apparently unaccompanied by any agent or representative of appellant college, to Sand-erson, Texas, to deliver the $50,000.00 payments to Mitchell, he was aware of his transaction of December 15, 1954 with the college and at such times he had the mental capacity to understand the nature and effect of such act. These jury findings were on Special Issues Nos. 4, 5, 7, 8, 10 and 11. But on Special Issues Nos. 6, 9 and 12 the jury found that at the times of the delivery of these payments to Mitchell to apply on his debt, the will of Edwards was supplanted by the will of the agents or representatives of Abilene Christian College. In this entire record, which is voluminous, we are at a loss to find testimony to support such latter findings. On each such occasion of payment there was present in the Sander-son State Bank, besides Edwards and Mitchell, a lawyer who was also Vice President of the bank, one John M. Hayre. He testified that on each occasion Edwards would hand over to Mitchell the $50,000.00 check to apply on principal and a check drawn by Edwards on his account in the Pecos County State Bank for accrued interest, and the appropriate notations were made on the notes. The interest checks were in correct amounts, and on one occasion Mr. Hayre had to correct his calculation of interest so as to conform with the proper amount which Edwards had on a little slip of paper.

Mr. Edwards had kept these checks from the December in which they were given to him by the appellant to the following January 2nd, when his note payments to Mitchell became due, and made his payments promptly when due without any apparent persuasion or influence from anyone. We find nothing in the record to indicate to the jury that Edwards’ will was supplanted by the will of the agents of appellant at such times.

Turning now to Appellant’s points of error, we find that points 12, 13, 14, 36 and 37 set out that there is no evidence of probative force to support the jury’s findings that at the time of delivery by Edwards of the $50,000.00 checks to Mitchell on January 2, 1956, 1957 and 1958, his will was supplanted by the will of the agents or representatives of appellant, and that appellant’s motion that these jury findings be disregarded should have been granted by the Court and judgment should not have been rendered on these findings for the reason that such findings were so against the weight and preponderance of the evidence as to be manifestly unjust. We find that these points of error should be sustained.

Appellant’s Points of Error Nos. 16 to 27 all relate to Special Issue No. 3, which issue reads as follows:

“Do you find from a preponderance of the evidence that Don Morris and/or B. Sherrod intentionally produced in the mind of Wm. M. Edwards a false impression as to the nature and effect of the contract and deeds of December 15th, 1954, by their words and acts in order to obtain execution by Wm. M. Edwards of said contracts and deeds?”
“Answer ‘We do’ or ‘We do not’.
“Answer: ‘We do.’ ”

Appellant’s Points of Error 16, 20 and 21 all complain of the action cf the court in submitting said issue No. 3 on the basis that there was no evidence to justify the court in submitting such issue. Appellant’s point No. 17 complains of the court’s action in rendering judgment based on the answer to issue No. 3 on the ground that there was not sufficient evidence of probative force to support the jury’s answer to such issue. Appellant’s points 18, 19 and 22 maintain that the court erred in rendering judgment based on the jury’s answer to issue No. 3 because the answer of the jury to the issue and its component parts was so contrary to the overwhelming weight or preponderance of the evidence as to be manifestly unjust. We believe that the above noted points of error raised by appellant are all well founded and must be sustained.

The following extract from Mr. Edwards’ letter to the Pecos County State Bank, written some two months after his execution of the contract and deeds on December IS, 1954, indicates that Edwards had a very clear conception and grasp of what disposition he had made of his property, and the terms and conditions of such disposition:

“I have deeded my Ranch to the Abi-line Christian College, Retaining life interest and full control. They to Pay me $50,000.00 on December 15 each year until the J. C. Mitchell & Banker Life Company notes or all Paid.”

Appellant further objects to issue No. 3 in its points of error No. 23 and 24, which complain of the submission of the issue which, as worded, contained comment on the weight of the evidence and presumed to such an extent that it in effect was an instruction - and suggestion to the jury. Appellant substantiates this objection by discussing the wording of the issue, especially with reference to the word “intentionally”, which appellant maintains, along with the wording of the rest of the issue, suggests to the jury and creates a presumption that there is no doubt but what a false impression had been created in the mind of Mr. Edwards, and that the issue merely wanted the jury to determine if such impression had been “intentionally” created by the agents or representatives of Abilene Christian College. We think these points are also well founded and should be granted.

Appellant further, by its points of error Nos. 25, 26 and 27, complains that the issue is duplicitous. Appellant in its-assignment of error No. 27 states as follows :

"Plaintiff further objects and excepts to Special Issue No. 3 and the submission of same for the reason that same is duplicitous in that it combines several issues in one issue. That is, it combines an issue as to whether or not Don Morris and/or B. Sherrod intentionally produced in the mind of Wm. M. Edwards an impression, and additionally inquires as to whether or not such impression was a false impression, and it further inquires as to whether this impression was as to the nature and effect of the contract and deeds of December 15, 1954 and further inquires as to whether such was done in order to obtain the execution by William M. Edwards of said contract and deeds, and further inquires as to-the purpose of creating such false impression, all of which are ultimate issues in this case, and in this connection Plaintiff says that such Special Issue No. 3 combines five or more ultimate issues and is therefore duplicitous.”

We believe that these points are also well taken by Appellant and must be sustained. It has long been held that special issues as submitted to a jury must be submitted distinctly and separately and may not be duplicitous. Texas Rules of Civil Procedure, rule 277 ; 41-B Tex.Jur. 576, ¶450.

For the above reasons we believe that Appellant’s points of error 16 through 27 must all be sustained, and we so hold'.

Points of Error Nos. 9, 10, 11 and 15 relate to ratification. They -recite that the acceptance by Edwards of the $50,-000.00 checks in 1955, 1956, and 1957, and the use of them to pay parts of his debts in 1956, 1957 and 1958 amounted to a complete ratification of the December 15, 1954 deeds and contract. But appellees take the position that the contract and deeds of December IS, 1954 were obtained by fraud and were void, and therefore were not susceptible of ratification. Among other authorities cited in support of this position Appellees refer to Forman v. Irby, 115 S.W.2d 1229 (Tex.Civ.App. wr. ref.) which contains the following passage:

“Williston on Contracts distinguishes fraud which renders a contract merely voidable from that which renders it void in the following language:
“ ‘Fraud may induce a person to assent to do something, which he would not have otherwise done, or it may induce him to believe that the act which he does is something other than it actually is. In the first case, the act of the defrauded person is effectual, though voidable. In the second case, the act of the defrauded person is void’ ”.

Based on this authority, appellees contend that:

“The fraud proved in this case clearly made the contracts and deeds void, because it induced Edwards to believe that the acts he did were something other than they actually were.”

However, it is our opinion that Edwards in fact knew what he did and had a full realization of the nature and effect of his acts. We do not find, therefore, that there were present here the elements of fraud that would make the instruments either void or voidable. However, should we be mistaken in holding that the contract and deed here involved were in any way voidable, then we think there can be no doubt but what Mr. Edwards intentionally and actively ratified said contract and deeds by his acceptance and use on three different occasions of a check for $50,000.00, from Appellant, as claimed in points of error 9, 10, 11 and 15. The record shows that on each such occasion the check was received in December by Mr. Edwards, and on the following January 2nd he drove the long road from Fort Stockton to Sanderson, unaccompanied, in order to deliver the check each time to the holder of the mortgage against Edwards’ land, and receive credit therefor, all of which was duly accomplished on three consecutive years after the contract was executed. There is no evidence that he was ever deceived or persuaded or coerced in any way in delivering these three checks. The record shows that he did receive credit on the indebtedness against the ranch for each of these $50,000.00 checks. All this we think constitutes a clear case of ratification and we so hold, sustained Points of Error 9, 10, 11 and 15, should we be wrong in holding that the contract was in no way voidable.

Points of Error Nos. 28, 29, 30 and 31 relate to the refusal of the trial court to submit certain specially requested issues. We believe our disposition of the preceding points disposes of the matters raised in said points of error.

Points of Error Nos. 32, 33, 34 and 35 assign error in permitting the introduction of certain exhibits that consisted of a picture, greeting cards, letters and envelopes sent to Edwards by various relatives, the introduction of which, it was claimed, was violative of the Dead Man’s Statute. A consideration of these points would unduly lengthen this opinion, and since they in no way change the disposition of this case, we deem it unnecessary to dwell upon them.

Finally, we take up those points of error relative to the “undue influence” element of this case. Special Issue No. 2 reads as follows:

“SPECIAL ISSUE NO. 2. Do you find from a preponderance of the evidence that Wm. M. Edwards, at the time he signed the contract and deeds on December 15, 1954, was caused to do so by the exercise of undue influence upon him by B. Sherrod and Dr. Don Morris, or either of them?”

To this special issue the jury found:

“He was caused to do so by the exercise of undue influence.”

Points of Error Nos. 1 through 8 are directed to this Special Issue, claiming that the Trial Court should have instructed a verdict for appellant on this issue, the usual “no evidence” and “insufficient evidence” points; “so. against the overwhelming weight and preponderance of the evidence as to he manifestly unjust” point; that the finding of the jury should have been disregarded and judgment entered for appellant on this point, etc. In our extended statement of the nature and result of this case we have attempted to set out all material circumstances preceding and surrounding the signing of the questioned documents on December IS, 1954. The jury found, and such finding is amply supported by the evidence, that Edwards was of sound mind when he executed the documents. But such a finding does not thereby eliminate the possibility of undue influence having been exerted upon him. There was ample opportunity on the part of the agents of appellant, in their many visits to Edwards and their several solicitations of him, to exercise some type of undue influence upon him. But mere opportunity does not suffice to show undue influence. In re Caruthers’ Estate, 151 S.W.2d 946 (Tex.Civ.App. Dism. Judgment Corr.) There must be some evidence of a tangible nature that such influence was in fact exerted. Price v. Taliaferro, 254 S.W.2d 157 (Tex.Civ.App. Ref. n. r. e.) Furthermore, not every influence brought to bear upon the mind of a testator by a beneficiary will be classed as “undue influence”. Language is used in Wetz v. Schneider, 78 S.W. 394 (Tex.Civ.App. no wr. hist.) that is particularly applicable to the case at hand:

“Persuasion, entreaty, cajolery, importunity, argument, intercession, and solicitation are permissible, and cannot be held to be undue influence, unless they subverted and overthrew the will of the testator, and caused him to do a thing that he did not desire to do. No more could a will be made from mere persuasion, entreaty, or argument, which has been weighed and considered by the testator, and his own mind made up and voluntarily formed, be classed as undue influence, than could! the arguments of counsel to a court, which are weighed and considered in arriving at a just conclusion as to the law of the case, be denominated undue influence. * * * No matter how great the fraud may have been, nor how vigorous and active the influence produced upon ■ and exerted over the testator, they would not avail to set aside the will unless they were sufficient to overcome the volition and desire of the testator.”

Nor do we feel, as Appellees contend, that the contract and deeds executed by Edwards constituted such an unnatural disposition of his property as to evidence undue influence. Edwards never married. His parents were dead. He lived alone. His heirs were collateral kindred. While there seemed from the record to be no lack of friendship between them, the relatives visited Edwards rather infrequently and there was no indication that they actively and continuously took care of him. Edwards lived from December 15, 1954, when the instruments were executed, until the time of the onset of the fatal illness on about October 25, 1958, without expressing any desire to change or revoke the contract and deeds except to insist (probably for tax reasons) that the $50,000.00 installment checks be made payable direct to the lien holder, J. C. Mitchell.

While the facts in the case of In re Caruthers’ Estate, supra, are admittedly not in all respects identical with the facts in the instant case, there are many similarities. Caruthers, in his will, devised $25.00 per month, conditionally, to each of two aged brothers during their life, and the balance of the estate, valued at about $28,-000.00 to charity. Caruthers was never married. He lived alone. The contestants of his will were collateral kin, certain of his nephews and nieces. Caruthers lived for more than three years after the execution of the Will without expressing any desire to change or revoke it. In a district court trial to a jury, the latter found the deceased mentally incompetent, but also found that the will was procured by undue influence exerted upon him by the principal beneficiaries named in the will. The trial court granted a motion for judgment non obstante veredicto and rendered judgment probating the will, holding that the finding of undue influence was without support in the evidence. This judgment was affirmed by the Court of Civil Appeals and writ was dismissed, judgment correct. The following is quoted from the opinion:

•“In proper cases, proof that a will was unnatural and unjust has been admitted as a circumstance bearing upon the issue of mental capacity, or as tending to show the result of undue influence. But such evidence is of no probative value in establishing the vital issue that undue influence was in fact exerted upon the testator.
“A testator has the legal right to select freely the objects of his bounty and no inference against the validity of his will can be drawn from the mere fact that his needy kinfolk were left nothing, or that the will might appear to others as making an unfair disposition of the testator’s property. A testator’s right to bestow his property by will at death is as absolute as his right to convey it during his life time”.
* * * * * *
“Our courts have ever been diligent to guard the right of a testator to dispose of his property as he pleases and to uphold bequests made for charitable and religious purposes. Obviously, such bequests are less apt to be the result of undue influence than those made to private individuals who might for selfish reasons be inclined to exert influence upon the testator. It is true that proof of such collateral matters as an expressed testamentary intent contrary to that expressed in the will, opportunity of beneficiaries to exert undue influence, and proof that the provisions of a will are unnatural have been received in proper cases. But such proof is of a collateral nature and is usually admitted as tending to show the surrounding circumstances under which the will was made, as supporting proof of lack of testamentary capacity; or as tending to show that undue influence proved otherwise in fact produced a result contrary to the wishes of the testator. But such proof is not accepted by our courts as of probative value in establishing the vital issue of undue influence in the absence of evidence that undue influence was in fact exerted upon the testator.”

The latest expression of our Supreme Court on this subject is to be found in the case of Rothermel v. Duncan et al., Tex., 369 S.W.2d 917. The Court states:

“Undue influence in the procurement of a testament is a ground for its avoidance separate and distinct from the ground of testamentary incapacity; for while testamentary incapacity implies the want of intelligent mental power, undue influence implies the existence of a testamentary capacity subjected to and controlled by a dominant influence or power. Long v. Long, supra [133 Tex. 96, 125 S.W.2d 1034]; Besteiro v. Besteiro, Tex.Com.App., 65 S.W.2d 759. Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. See: Stewart v. Miller, Tex.Civ.App. (1925), 271 S.W. 311, wr. refused; Olds v. Traylor, Tex.Civ.App. (1944), 180 S.W.2d 511, wr. refused.
■“The burden of proving undue influence is upon the party contesting its ■execution. It is, therefore, necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above stated ■elements of undue influence. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138.
“It cannot be said that every influence exerted by one person on the will of •another is undue, for the influence is not undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence. Long v. Long, supra. Indeed it has even been held that one may request or even importune and entreat another to execute ■a favorable dispositive instrument; but •unless the importunities and entreaties are shown to be so excessive as to subvert the will of the maker, they will not taint the validity of the instrument with undue influence. See: Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208, and cases cited therein. * * * It is the law in Texas that a will cannot be set aside on proof of facts which at the most do no more than show an opportunity to exercise influence. Burgess v. Sylvester, Tex.Civ.App. (1944), 177 S.W.2d 271, affirmed, 143 Tex. 25, 182 S.W.2d 358. * * * The exertion of influence that was undue cannot be inferred alone from opportunity, but there must be some testimony, direct or circumstantial, to show that influence was was not only present but that it was in fact exerted with respect to the making of the testament itself. There is no such evidence here.”

In the instant case the terms embodied in the contract and deeds were not the appellant’s terms, but those of Edwards. The instruments themselves were written at the request of Edwards and were changed and modified by Edwards and his attorney to fully protect Edwards in what he wanted done. Two months after the execution of the deeds he told in a letter succinctly and accurately what he had done, and expressed neither doubt nor regret. We find nowhere here any undue influence exerted upon him.

Appellant’s Points of Error Nos. 1 through 8 are sustained. Since this case has been most thoroughly developed in the trial court, another trial would be both costly and useless. We find that we must reverse the judgment of the trial court and here render judgment in favor of the appellant.

Reversed and rendered.

PRESLAR, J., not participating.