author: COLLINGS, Justice.

text:
    Claire H. PARMELEE et vir, Appellants, v. NUECES ROYALTY COMPANY et al., Appellees.
    No. 3721.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 26, 1962.
    Rehearing Denied Oct. 26, 1962.

      George G. Clifton, George G. Clifton, Jr., San Antonio, for appellants.
    Morrison, Dittmar, Dahlgren & Kaine, San Antonio, for appellees.
   COLLINGS, Justice.

The opinion delivered in this cause on September 21, 1962, is withdrawn and the following is substituted therefor. Suit was brought by Nueces Royalty Company, a partnership composed of J. R. Howe, G. D. Beauchamp, Frith C. Owens and R. U. Maddox, and by R. S. Nixon and Paul J. Rogers against Claire H. Savage, now Claire H. Parmelee, who has been joined herein by her husband Clyde D. Parmelee. Plaintiffs, who were grantees under a term mineral deed, sought to recover from Mrs. Parmelee, who was grantor of an oil and gas lease and reversioner under the mineral deed under which plaintiffs held, a fractional part of the cash bonus consideration paid for the oil and gas lease. The court granted plaintiffs’ motion for summary judgment and overruled the defendants’ motion therefor. The Parmelees have appealed.

The parties have stipulated and agreed that the material facts are in substance as follows:

“1. By instrument dated April 26, 1935, Emma B. Hammond, by Mrs. H. H. Hammond, Attorney-in-Fact, as Grantor, conveyed to J. P. Flanagan, an undivided one-half (½) interest in the oil, gas and other minerals under 600 acres of land, more or less, in Hidalgo County, Texas, more fully described in said deed, the pertinent parts of said deed being as follows:
“ ‘It is further agreed that Grantee shall have one-half (½) interest in any bonus money received by the Grantor in any future lease or leases given on said land, and that it shall not be necessary for the Grantee to join in any such lease or leases so made * * * ’.
“ ‘It is further agreed and herein stipulated that in case there is no paying production on said land on or before April' 25, 1955, and for six months thereafter, that his grant shall become null and void, and the minerals hereby conveyed shall revert to the said Grantor, her heirs and assigns * * * ’.
“2. That plaintiffs, by mesne conveyance, holding under said above described mineral deed, at all times pertinent to this suit, were, respectively, the owners of the undivided interest in the oil, gas and other minerals in and under the land covered thereby, as follows:
Nueces Royalty Company .15165567
R..S. Nixon .05055189
Paul J. Rogers .05055189-
Total .25275945
“3. That subsequent to the execution and delivery of said above described mineral deed, it has been determined that the lands actually covered by and described in said deed comprise a total of 590.25 acres.
“4. That it has been judicially determined in the case of Scott et al. v. Union Producing Company et al., 5 Cir., 267 F.2d 469, that the interest of the Plaintiffs in the minerals in said 590.25 acres terminated on October 25, 1955.
“5. That Mrs. Claire H. Parmelee, as successor in title to Mrs. Emma B. Hammond, at all times pertinent hereto owned the reversionary rights to- Plaintiffs’ undivided mineral interest.
“6. That under date of July 29, 1954, as successor in title to Emma B. Hammond, " Claire H. Savage (now Claire H. Parme-lee), then a feme sole, et al., executed and ■ delivered to Union Producing Company an . oil, gas and mineral lease covering all of the lands involved in this suit for a term of fiye (5) years from December 13, 1954 (called primary term) and as long thereafter as oil, • gas or other mineral is produced from said land. Said lease was a five (5) year paid up ‘ lease from the effective date, thereof and ■ was made for a consideration of Forty Dollars ($40.00) per acre, -or a'total of Twenty-three Thousand Six Hundred Ten and no/100 Dollars ($23,610.00), which was paid to Defendant Claire H. Savage (now Claire H Parmelee.).
“7. That Defendant, Claire H. Savage (now Claire H. Parmelee) tendered to each of Plaintiffs as their proportionate parts of the bonus received by her, her several checks covering each respective undivided interest of Plaintiffs but calculated' in the proportion that the unexpired part of the term of their mineral grants held to the five (5) year term of the lease; more explicitly, 10.4/60 of their respective interests in the entire bonus received by her.
“8. That the tender of such monies was refused by each of Plaintiffs.
“9. That plaintiffs maintain that they are entitled to the respective amounts of said bonus, as follows:

together with legal interest thereon.

“10. That Defendants maintain that Plaintiffs are only entitled to 10.4/60 (unexpired part of term mineral grant) of such bonus monies times their respective interests in the minerals in question.
“11. That there are no material disputed fact issues involved in this case.
“12. That the statute of limitation is expressly waived.”

Appellants contend the court erred in overruling their motion for summary judgment, thereby denying them that portion of the cash bonus which was paid for the lease executed by appellant on her reversionary mineral estate in the land involved. Appellants contend that since the oil and gas lease executed by her was a five year lease and at the time it was executed appellees’ term mineral interest had only a little more than one year to run that the court erred in granting appellees’ motion for summary judgment thereby awarding appellees the consideration paid for that portion of the oil and gas lease which embraced appellants’ reversionary interest.

Appellants’ points are not well taken. The question involved is whether the payment received by appellant for the lease executed by her was “bonus money.” If it was the court correctly held for appellees because the term mineral deed dated April 26, 1935, under which appellees held specifically provided that “grantee shall have one-half (½) interest in any bonus money received by the grantor in any future lease or leases given on said land.”

Summers Oil and Gas Yol. 3A page 3 defines bonus as: “The cash bonus, which represents market value of a lease apart from royalties to be paid on production and other consideration of the lease, is a sum of money paid on the execution of the lease, or agreed to be paid at some later date, usually out of the lessee’s share of the first oil produced from the land.” In Griffith v. Taylor, 156 Tex. 1, 291 S.W.2d 673, Judge Calvert speaking for our Supreme Court defines “bonus” as “any consideration given for a lease over and beyond the usual ⅛⅛ royalty, whether the additional consideration be paid or payable and whether paid in cash or payable out of production.” The term bonus has also been defined as “a sum of money paid by a lessee to the lessor in consideration for the execution of a lease, as distinguished from the return of royalty reserved by the lessor to be paid by the lessee through the term of the lease.”

Appellants cite the Texas Supreme Court case of Minchen v. Fields, 345 S.W.2d 282. Contrary to appellants’ contention this case, in our opinion, supports the judgment of the trial court. In that case Minchen held under a term mineral deed covering a fractional interest' expiring in the absence of production on April 2, 1955.

The oil and gas lease executed by Fields .,was for a five year term expiring on February. 28, 1952, and provided for a $5.00 per acre cash bonus. Minchen’s proportionate part of this cash bonus was paid in full without a question. Minchen contended that he was also entitled to the same proportionate part of-a production payment of $75.00 per acre, payable under the terms of the lease out of %2nd of jJfjths of the oil and/or gas and other minerals, “if, as and when produced, saved and sold.” Production was hatbon land covered by the lease but not on Uh'e'land upon which Minchen held a term mineral interest. Our Supreme Court held in'that case that the production payment in ■question constituted a part of the bonus for the leasé, but limited Minchen’s participation in such production payment to the monies actually received up to termination of his-mineral grant. The court indicated that-by the terms of the lease such production payment was conditioned on actual production and was not an absolute obligation to pay a sum within a specified time.

In the instant case the bonus re'ceived by Mrs. Parmelee was a cash bonus paid at a specified time during the term of the -'mineral deed under which appellees held, that is, upon the execution of the lease. None of such bonus was under the terms of the lease conditioned upon production after the expiration of appellees’ term mineral interest. Appellees were entitled to the full stated share in the bonus money so received by the grantor.

In our opinion the consideration received by Mrs. Parmelee for and at the time of the execution of the lease was “bonus”. According to the express provisions of the term mineral deed under which appellees held, each of the mineral owners was entitled to receive the same fractional part of such cash bonus consideration as his respective interest in the minerals in question at that time bore to the whole. The court correctly entered judgment in favor of the appellees.

The judgment is affirmed. Since the order heretofore entered affirming the judgment is in our opinion correct we overrule appellants’ motion for rehearing. The foregoing opinion is, however, substituted in lieu of the original opinion which is withdrawn.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    RED FISH BOAT COMPANY, Appellant, v. The JARVIS PRESS, INC., Appellee.
    No. 16081.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 12, 1962.
    Rehearing Denied Oct. 26, 1962.

      Pat C. Beadle, Clarksville, for appellant.
    Edwards, Fortson, Sowell & Akin and Ted M. Akin, Dallas, for appellee.
   DIXON, Chief Justice.

Red Fish Boat Company, a corporation, has appealed from a judgment overruling its plea of privilege.

The Jarvis Press, Inc. appellee, sued appellant in a District Court in Dallas County, Texas. The suit is based on an alleged written contract for the printing of 250,-000 catalogues at a price of $98.40 per thousand.

Appellant is a resident of Red River County and seeks to have the suit transferred to that County for trial.

In its controverting affidavit appellee alleges that the written contract is by its express terms collectible in Dallas County, and that the contract arose in Dallas County; therefore venue properly lies in Dallas County under subds. 5 and 23 of Art. 1995, Vernon’s Ann.Civ.St.

Appellant presents only one point on appeal, which is as follows: “The trial court erred in overruling defendant’s plea of privilege”.

The point is much too general and indefinite to require our consideration. White v. Great American Reserve Ins. Co., Tex.Civ.App., 342 S.W.2d 793; Tindall v. Tacconelly, Tex.Civ.App., 328 S.W.2d 909; Rosenfield v. Hull, Tex.Civ.App., 304 S.W.2d 571; In re Martin’s Estate, Tex.Civ.App., 284 S.W.2d 279; Miguez v. Miguez, Tex.Civ.App., 221 S.W.2d 293; Rule 418, Texas Rules of Civil Procedure; 4 Tex. Jur.2d 155.

However, we gather from appellant’s brief as a whole that it bases its appeal on two contentions: (1) that appellee’s Exhibits Numbered 1, 2 and 3 do not constitute a written contract, and (2) that no evidence was introduced that Herman P. Walters who signed the Exhibit Numbered 3, was authorized to bind appellant as its agent. We shall therefore proceed to consider said contentions. Moore & Moore Drilling Co. v. White, Tex.Civ.App., 345 S.W.2d 550; Walker v. Bedell, Tex.Civ.App., 320 S.W.2d 913.

There is no merit to appellant’s first contention. Exhibits Numbered 1 and 2 are 1 a letter with 2 enclosed specifications constituting a written offer from appellee to appellant.

The letter is dated July 26, 1960. Its second paragraph is as follows: “We would appreciate very much if you would send us a formal purchase order or a confirming letter.” Also the letter contained an offer in substance as follows: if appellant would make a payment of $7,100 in advance on the contract, the catalogues would be hilled to appellant at $70 per thousand once a month as shipments were made. If such advance payment could not be made, the catalogues would be billed to appellant at $98.40 per thousand as shipped.

Exhibit Numbered 2, which accompanied the above letter went into greater detail as to the terms. We quote from the Exhibit:

Exhibit Numbered 3 is a letter, dated July 29, 1960, from appellant to appellee in reply to appellant’s offer. We quote from this reply:

“The Jarvis Press, Inc
“2134 Irving Boulevard
“Dallas 7, Texas
“Thank you for your letter of July 26th arid in compliance with your request by letter, telephone conversation and our personal meeting.
“As I especially discussed with you personally, we prefer monthly shipments and agree for your company to bill us at $98.40 per thousand as shipped.
“You have agreed to deliver us a brown line copy for our approval at your earliest convenience and to deliver 15,000 catalogues by September 15th. At that time we will give you monthly purchase orders for our thirty day needs in advance. All catalogues will be printed and shipped on an eight months period, September through April of next year.
“Very truly yours
“RED FISH BOAT COMPANY
“/s/ HERMAN P. WALTERS
“Chairman.”

The evidence shows that pursuant to the above agreement appellee printed 184,450 catalogues, of which 121,450 were delivered to appellant. The balance were held for appellant’s instruction in regard to delivery.

Appellant paid appellee a total of $9,410.-76 on the contract leaving a balance of $2,-539.92 past due and unpaid, and a balance for full performance of the contract of $7,-761.43.

So far as the record shows appellant did not attempt to repudiate the contract until some time after May 15, 1961. The controversy up to that time was concerned only with appellant’s failure to pay the consideration as it became due. This state of affairs is reflected in a letter from appellant to appellee dated May 15, 1961 as follows:

"May 15, 1961
“Mr. Gordon Hughes
“Jarvis Press
“2134 Irving Boulevard
“Dallas, Texas
“Dear Gordon:
“I am enclosing a check for $1,000.00 on the Red Fish Boat Company balance and I am sorry that we have been so long in paying this account but as you know the boating seasons is from 30 to 60 days late and it is still not too good at this point. We will pay you along on the balance as we can.
“As to the 60,000 catalogues you now have in stock, I wish to inform you again that we are well stocked and will give you releases, as and when, we have need for them.
“Again let me thank you for your patience in this matter.
“Sincerely yours
“(Sgd) H. A. Walters
“H. A. Walters, sr.”

The three documents, Exhibits Numbered 1, 2 and 3, in our opinion, constitute a contract in writing payable under its terms in Dallas, Texas. Appellant says that its letter of July 29, 1960 is not a letter of acceptance. We think it is. Its opening paragraph, though not a grammatically complete sentence, is obviously in compliance with appellee’s request for a confirming letter. Appellant points out that its letter nowhere specifically states that it agrees to purchase 250,000 catalogues. It was not necessary for the letter of acceptance to repeat in detail the terms of the offer made by appellee. Appellant also claims that its letter of July 29, 1960 stipulates different terms for delivery of the catalogues from those set out in appellee’s 'offer. We do not agree. The shipping instructions contained . in appellant’s letter are not inconsistent with the shipping and billing provisions of appellee’s letter. But if we were to hold that appellant’s letter did contain a slight variation from appel-lee’s offer, it would not avail appellant. For appellee by its actions agreed to the terms of appellant’s signed letter. It is well settled that one person may sign a contract and be bound by the writing though, the other person to the agreement signifies his acceptance only by his acts, conduct or acquiescence. Vinson v. Horton, Tex.Civ.App., 207 S.W.2d 432. See also Harrison v. Facade, Inc., Tex.Civ.App., 355 S.W.2d 543 and Dowdell v. Ginsberg, Tex.Civ.App., 244 S.W.2d 265.

Appellant’s second contention must also be overruled. There is evidence that Herman P. Walters was Chairman of appellant’s Board of Directors. In any event appellant has not pled under oath that Herman P. Walters lacked authority as agent to bind appellant.

Referring to pleas of privilege Rule 86, T.R.C.P. as amended, expressly provides as follows:

“ * * * provided that such plea shall not constitute a denial under oath of any allegations of plaintiff’s petition required to be denied under oath by Rule 93 unless specifically alleged in such plea.”

Rule 93, T.R.C.P. expressly provides that denial of the execution of an instrument in writing by a party, or by his authority, upon which any pleading is founded shall be verified by affidavit. Appellant’s failure to deny under oath the authority of Herman P. Walters to bind it as its agent is fatal to its second contention. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758, 763; North Texas Tank Co. v. Pittman, Tex.Civ.App., 290 S.W.2d 724, 729; Bailey v. A. R. A. Mfg. Co., Tex.Civ.App., 285 S.W.2d 849, 851; Harvey v. Bain, 140 Tex. 375, 168 S.W.2d 234.

The judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    Ira BERNE et al., Appellants, v. Julian T. KEITH, Appellee.
    No. 13922.
    Court of Civil Appeals of Texas. Houston.
    Sept. 13, 1962.
    Two Motions for Rehearing Denied Nov. 8, 1926.

      Fountain, Cox & Gaines, Joyce Cox, Winston Ellis, Houston, for appellants.
    John L. Hill, W. James Kronzer, Houston, Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for ap-pellee.
   WERLEIN, Justice.

This suit was brought by appellee, Julian T. Keith, against Ira Berne and some thirty-two corporations, to recover as compensation for personal services 10.9% of the profits realized and to be realized from a project known as Westbury project, involving the development, use and sale of three tracts of land designated as the 526 acre, 714 acre, and 430 acre tracts, generally referred to as Westbury, and alternatively for damages for denial of his alleged rights. Judgment was rendered by the court in the sum of $579,721.92, the court disregarding answers to eight issues, setting aside the finding of joint enterprise, and entering judgment for breach of oral contract for personal services. On motion f6r new trial the court ordered that a new trial would be granted unless a remittitur was filed in the sum of $287,620.96. Such remittitur was filed and the judgment was "j/' reduced to $292,100.96 with interest from date thereof. Appellants have assigned numerous points of error.

The oral agreement upon which Keith bases his claim is encompassed in the jury findings made in answer to Special Issues 1, 3, 4 and 5, which the trial court allowed to ■stand, to wit:

; To Special Issue No. 1: That at the time of the meeting of Ira Berne and Julian Keith in August, 1954, Ira Berne and Julian Keith agreed with each other on the following matters: (a) That Julian Keith would invest some of his .personal funds in the- Westbury project; (b) That for his coming to work on the Westbury project Keith would receive an interest in the profits, if any, produced or generated therefrom; (c) That any salaries of Berne were not to be deducted in determining net profits, if any, to be produced or generated from the Westbury project; (d) That Keith’s participation in the profits, if any, would extend to all of the properties comprising and which would comprise the Westbury project; (e) That as between Berne and Keith, Keith’s participation in the profits, if any, produced or generated from the Westbury project would not be affected or changed by the mechanics, creation and use of corporations and companies utilized for the purpose of developing .and. selling . thfe . Westbury ..project;.-, -(f) That Keith would work on the Westbury project until such time as it was completed and sold or sold before completion; and (g) :That Keith’s services could not be terminated except for dishonesty or fraud.

To Special Issue No. 3: That at the Brooks System Sandwich Shop meeting (March or April, 1956) it was agreed between Ira Berne and Julian Keith that: (a) Keith would continue to devote his services to the Westbury project until that project was -completed and sold or sold before completion; (b) Keith would receive 10% exclusive of any investment interest of Keith, of the net profits generated from the Westbury project as computed at completion or' sale of such project; (c) Such 10%, if any7"whJíiid Se""5gured oti the total net profits, before deducting income taxes, and before deducting any salaries paid to Berne; (d) From such 10%, if any, there would be first deducted such moneys paid to Keith.

To Special Issue No. 4: That at the Brooks System Sandwich Shop meeting (of March or April, 1956) it was agreed between Berne and Keith that the 10% net profits interest, if any, inquired about in Special Issue No. 3 and the investment interest would be merged and combined to a 10.9% interest for Keith in the net profr its of the Westbury project before taxes.

To Special Issue No. 5: That at the Brooks System Sandwich Shop meeting (of March or April, 1956) Ira Berne and Julian Keith agreed: (a) That Keith’s participation in the profits, if any, would extend to all of the properties comprising and which would comprise the Westbury project; (b) That as between Berne and Keith, Keith’s participation in the profits, if any, produced or generated from the Westbury project would not be affected or changed by the mechanics, creation and use of corporations and companies utilized for the purpose of developing and selling the West-bury project; and (c) That Keith’s services could not be terminated except for dishonesty or fraud. . : .

The jury, in answer to Special Issue No. 2, found that it was possible to perform the agreement inquired about in Special Issue No. 1 within one year from the making thereof; and in answer to Special Issue No. 6 the jury found that it was possible to have performed such agreements as they may have found Ira Berne and Julian Keith made at the Brooks Sandwich Shop, within one year from the making thereof.

The first question presented for our determination is whether the trial court erred in refusing to enter judgment for appellants upon the ground that Keith’s claims under the pleadings, evidence and jury findings are to an interest in land, or to a right in land or the proceeds thereof, which cannot be established or enforced upon an oral agreement. Keith takes the position that he alleged that his claim to profits was stated only and solely as the basis for measuring his compensation for personal services, and that he has neither pleaded nor established a claim to an interest in land.

In his first amended original petition Keith alleged that Berne promised him that he would be given a larger percentage of the Westbury project over-all profits if he would make a personal investment of $5,000.00; that subsequent to such investment being made by Keith, and which investment was part and parcel of the overall employment arrangements, it was agreed between the said parties that in full compensation for Keith’s services in connection with their joint business venture, in addition to his 1% investment percentage, Keith would be and become entitled to 10% of the profits, before income taxes, generated from the Westbury project, less any salary and bonuses paid Keith by Berne from time to time. He also alleged that such 10% interest would be applicable before any investment percentages were paid, making his total percentage 10.9%, and also that the 10.9% would be paid him on any salaries or personal expenses withdrawn by Berne.

It is clear that the relationship between Berne and Keith was that of employer and employee. Keith went to work on October 1, 1954. He testified that Berne allowed him a drawing account of $600.00 per month to begin with, and that he was to work on a percentage basis which was the only basis Berne was willing to employ him on. The trial court in entering judgment expressly found that the judgment entered is based upon a breach of an oral contract for personal services with compensation therefor being measured by a 10.9% interest before federal income taxes in the profits of the project, and that such 10.9% interest is based upon plaintiff’s 1% investment interest as merged and combined with a 10% interest in such manner as to result in a total of 10.9% interest, all as found by the jury in response to Special Issues Nos. 3, 4, 5 and 6; and that the judgment entered was in personam only for damages, with no relief being granted to plaintiff by way of impressing any form of constructive or resulting trust in respect to any of the lands described in plaintiff’s first amended original petition or upon funds representing money from the sale of such lands, and that all relief sought by plaintiff in the nature of any declaration of rights in respect to such project or lands not specifically granted was specifically denied. If the trial court’s conclusions and judgment are supported by the pleadings, evidence and findings of the jury, the contract would not give Keith an interest in land or such interest in the proceeds or profits therefrom as might be construed as an interest in land within the Statute of Frauds, Art. 3995, Subd. 4, Vernon’s Annotated Texas Statutes.

Appellee does not assert any interest in the lands comprising the Westbury project. He claims only compensation for personal services and damages for breach of contract, and contends that he is entitled to recove«¿áS3% o£ thenet profits generated and growing out oftlíf’development proiect. The oral contract asToun3*by the jury -was substantially pled by appellee and his testimony supports the jury findings. An .analysis of such findings by the jury based upon all of the evidence adduced does not indicate that the parties intended by the oral contract to vest in Keith any interest in the lands comprising the Westbury project. The cases relied upon by appellants, in support of their contention that under the oral contract in question Keith’s claims are to an interest in land or to a right in the land and the proceeds therefrom, are factually inapplicable to the present case. Most of such cases involve oil, gas and mineral leases and royalties in which the interest claimed was measured by the production of the land whether payable in kind or money. It is, of course, well settled that the right to royalty from oil production constitutes an interest in land. In Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021, 80 S.W.2d 741, our Supreme Court held:

“Sound principle, supported by the highest authority, goes further and compels us to accede to the proposition that dealing with oil and gas or dealing with solids in place, like sulphur, lignite, salt, coal, or lime, the lessor owning the entire fee-simple title to the land, and his assigns, who have been careful to secure to themselves, their heirs or assigns (by exception or reservation or by contract for ‘having’ or yielding or paying, or for delivery, or by what-not similar contractual clause), the right to a portion of the proceeds or profits derived from the lessee’s or his assigns’ authorized sale of the minerals, throughout the duration of a determinable fee, which may be perpetual, have and own a fee-simple interest in land, or at least have a right belonging or appertaining to the horizontal strata of the land in which the minerals are embedded.”

Appellants rely heavily upon Dictrich v. Heintz, 44 Tex.Civ.App. 602, 99 S.W. 417, writ ref. We think that case is distinguishable from the instant case in that the claim of the employee in that case was that his employer verbally promised him that she would give him an interest in the premises to the extent of $4,000.00 which he would receive from the sale of the lot. He did not sue for the value of his services, and if he had done so, his action would have been barred by limitation. The court held that it was obvious that the claim was based upon the sale of an interest in land to the extent of $4,000.00, and was therefore void. Frazier v. Hanlon Gasoline Co., Tex.Civ.App., 29 S.W.2d 461, is also distinguishable in that it involved a profit a prendre or the right to take something out of and from the soil.

We think one or more of the following elements o.r attributes of the oral agreement in question distinguish it from the instruments or agreements upon which claims were based in the cases relied upon by appellants, and support appellee’s contention that the claims asserted by him are not to an interest in land: (1) The oral agreement does not expressly or by necessary implication give appellee an interest in the land or in the proceeds from the sale of lands or any part thereof; (2) The liability for payment of appellee’s compensation for services rendered and to be rendered is that of Berne personally whether acting individually or as the alter ego of the numerous corporations, some of which took title to the land; (3) Keith was to share in the net profits of a large development project or business in payment for personal services. He was paid a salary and given bonuses and/or had a drawing account. He was to be paid 10.9% of the net profits of the entire project when completed and sold or sold before completion as his total compensation, from which would be deducted salaries, bonuses and/or draws previously received by him. (4) Keith could be discharged at any time for dishonesty o.r bad faith. There is nothing to show that he would be entitled to any profits if he were discharged for good cause prior to the completion or sale of the project. (5) Keith claims no interest in the land as such nor does he seek to recover anything therefrom in the nature of profits a prendre or any usufruct from the land in kind or measurable in money or products. (6) Keith could not require appellants to sell the land or any part thereof, nor could he interfere with appellants’ sale of the land for any price or under any conditions, nor could he demand any profits from the project prior to the completion thereof or sale before completion.

Appellee has cited a number of authorities to the effect that an oral agreement to share profits arising from the purchase and sale of real estate is not a contract for a transfer or assignment of an interest in real estate. See Martin v. Morrison, Tex.Civ.App., 260 S.W. 893, 894, writ dism.; Frank v. Gaffney, Tex.Civ.App., 2 S.W.2d 885, 887, writ dism.; Jowell v. Camine, Tex.Civ.App., 32 S.W.2d 511, 512, error ref.; Carothers v. Creighton, Tex.Civ.App., 101 S.W.2d 631; Gill v. Smith, Tex.Civ.App., 233 S.W.2d 223, writ ref., n. r. e.; Le Bus v. Le Bus, Tex.Civ.App., 269 S.W.2d 506, writ ref., n. r. e.; Newton v. Gardner, Tex.Civ.App., 225 S.W.2d 598, writ ref., n. r. e.

In Eads v. Murphy, 27 Ariz. 267, 232 P. 877, the court clearly announced the majority rule covering an agreement to share profits from the purchase and sale of land as follows:

“While there is some conflict of authority, yet the overwhelming weight is to the effect that a parol partnership agreement or joint enterprise entered into by two or more persons, for the purpose of purchasing and selling real estate or interests therein for speculation, the profits to be divided among the parties, is not within the statute of frauds relating to the sale of lands or an interest therein, and that such an agreement may become effectual and suit maintained thereon, though not in writing. In fact, while the doctrine in Hoge v. George, supra [27 Wyo. 423, 200 P. 96, 18 A.L.R. 469], is supported in 29 states as well as England and Canada, the contrary rule is upheld by only 6 states and a few federal decisions, and, even in two of those, where the agreement has been fully executed so that nothing remains, but the division of the profits, as alleged in this case, it is held not to be within the statute.”

Appellants contend that the instant case is distinguishable from the cases cited by appellee in which the contract was for the purchase and sale of land, since at the time of the original agreement between Keith and Beme in August, 1954, Berne had already acquired an undivided one-half interest in the 526 ácre tract, and at the time of the Brooks Sandwich Shop agreement in 1956, various corporations controlled by Berne owned that part of the land comprising the Westbury project which at such time had not already been sold or conveyed to Berne. The validity of the distinction seems doubtful since the majority rule is not based upon the theory of a trust relationship but, in the main, upon the theory that an agreement to share in the profits of contemplated speculative deals in real estate simply does not involve the transfer of real estate, or an interest in real estate, within the meaning of the Statute of Frauds. See Annotations, 95 A.L.R. 1242, 1243. So in the instant case appellee is not seeking a transfer of any interest in the lands belonging to Berne or anyone else. He is seeking an accounting of a share in the profits as compensation for services rendered in a project involving speculation in real property which he asserts became due him upon completion of the project or upon a breach of the agreement by Berne.

The distinction which appellants undertake to make, however, is discussed and recognized by the Supreme Court of Virginia in Burgwyn v. Jones, 113 Va. 511, 75 S.E. 188, 41 L.R.A.,N.S., 120, in which it is held that an oral agreement creating a partnership and giving the partners an interest in real estate owned by a partner at the time of the formation of the firm, is an agreement for the sale of real estate within the Statute of Frauds. In that case the court stated that if appellant acquired an interest in 'appellee’s lot by virtue of the contract it attached upon the contract being made. The court stated, however, that upon such question the authorities were not agreed. See 49 Amer.Jur., § 220, p. 546, where it is stated:

“Some courts, however, limit the rule to an agreement for the future purchase and sale of real estate for speculation, to the exclusion of an agreement to become interested in and to share the profits from lands already purchased and owned by a member or members of the firm when the partnership is formed. Other authorities make no distinction on this ground.”

We think the instant case is distinguishable from the Burgwyn case, and that the facts herein are more analogous to those in the case of Atlantic Coast Realty Co. v. Robertson, 4th Cir., 240 F. 372. The court in the Robertson case distinguished it from the Burgwyn case, and held that the contract by which the defendant, an owner of land, gave plaintiff an agency to sell the land, plaintiff to make advancements for development, advertising, etc., and to receive as compensation one-half of the net profits received from the sales above the fixed value placed upon the lands, did not give plaintiff any interest in the land which would bring the contract within the Statute of Frauds.

In the instant case there is no partnership agreement or community of profit. Keith has no interest in the profits as profits, as distinguished from an interest therein as compensation. Tanner v. Drake, Tex.Com.App., 124 Tex. 395, 78 S.W.2d 162. Nor is he required to share in the losses of the project, although he might receive no percentage of profits if it failed and might have to refund his advances or “draws”. Paggi v. Quinn, Tex.Civ.App., 179 S.W.2d 789, writ ref., w. m. Where one buys land and agrees that another shall sell it for compensation to be derived from a share of the profits, such agreement does not constitute a partnership. Frank v. Gaffney, supra. On motion for rehearing in the case of Parriss v. Jewell, 57 Tex.Civ.App. 199, 122 S.W. 399, error ref., recovery was permitted in the sum of $1500.00 from the proceeds of the sale of land which was already owned ’ by the other party, since the contract was for the payment of money and not for the sale of land. See also Atlantic Coast Realty Co. v. Townsend, 124 Va. 490, 98 S.E. 684, which is in accord with the case of Atlantic Coast Realty Co. v. Robertson, supra. To like effect see Wicks v. Knorr, 113 Conn. 449, 155 A. 816, in which the court stated: “Knorr and Tobin were not joint adventurers as regards the Campo Hills development. The agreement being merely to divide profits, it was not within the statute of frauds, even though these were to be realized from real estate transactions.” See also Manget v. Carlton, 34 Ga.App. 556, 130 S.E. 604.

In Bowyer v. Beardon, Tex.Com.App., 116 Tex. 337, 291 S.W. 219, opinion adopted by the Supreme Court, the court held in answer to a certified question that the “owner of land under rental to another may, upon sale of such land, reserve by verbal agreement the rentals thereafter to become due. This is a segregation by mutual agreement of the rentals from the land. Such segregation does not involve the statute of frauds in any way.”

We think the fact that after this suit was filed, appellee sought in an ancillary proceeding to prevent the transfer of certain assets of one of appellant’s corporations to another corporation, is not controlling in any way since, at such time, whatever rights appellee had under the contract sued upon had already accrued and he was entitled to his percentage of the net profits as compensation. Basing our opinion upon the entire record, we have concluded that the oral agreement between appellant and appellee as pleaded and as found by the jury does not fall within the Statute of Frauds of this State.

Appellants assert that the court

■erred in refusing to deny Keith recovery on the ground that the existence of damage is speculative. Although it is conjectural as to the amount of future profits that will ultimately be realized, we think there is sufficient evidence to support a finding that in all reasonable probability profits will ultimately be realized upon completion and sale of the Westbury project or sale before final completion. In Southwest Battery Corporation v. Owen, 1938, 131 Tex. 423, 115 S.W.2d 1097, the court said:

“The courts draw a distinction between uncertainty merely as to the amount and uncertainty as to the fact of legal damages. Cases may be cited which hold that uncertainty as to the fact of legal damages is fatal to recovery, but uncertainty as to the amount will not defeat recovery. A party who breaks his contract cannot escape liability because it is impossible to state or prove a perfect measure of damages.”

See Adams v. Hood County Sand. & Gravel Company, Tex.Civ.App.1962, 354 S.W.2d 593.

In the instant case it was proved that large profits had been produced of generated by the project from the time of its beginning in 1954 until the date of trial in February, 1961. There was nothing to show that conditions had so materially ■changed as to indicate future profits would not be realized. It is true that Berne painted a rather bleak picture of the future, but his expressed amazement when asked if he would sell all the remaining property for the indebtedness against it is not consonant with such picture.

Keith admitted that the business of •building houses for sale was speculative .-and that such observation would apply to Westbury except for the fact that the •water district improvements in Westbury •had cost over $4,500,000.00. He .said that what the profits will be would probably be conjectural but he did not testify to any uncertainty as to the fact that profits would be generated. The house building business, about which he was testifying, was only a part of the over-all project ofj developing an addition, selling lots both retail and wholesale, and establishing a large and attractive community center for stores. Keith’s projections of future sales| and future profits that would in his opinion be produced, while largely speculative as to the amounts of profits that would be generated, strongly support appellee’s contention that there is no uncertainty as to the fact that the project which had produced large profits during the preceding several years, would continue to show profits. Appellants’ witness Farb testified that he had no way of determining what Keith’s share of the profits would be over a twenty year period. He testified that we could guess what they would be, and “We might estimate them.” He also testified, “I think we could determine that there might be a profit as opposed to a loss. But if you asked me could we determine the exact profit, the answer is no.” He further stated that he could not say whether or not there would be any profits from Westbury on a “guaranteed basis.”

The evidence indicates that Westbury will have been completed and sold or sold before completion in much less time than twenty years. We think the evidence also amply shows that barring some extraordinary crisis or catastrophe it is reasonably certain that the project will show a substantial profit at the time of its completion. This conclusion is further supported by the fact that the business is a going one and that more than $1,500,000.00 past profits had been made.

The law is well settled that damages as lost profits may be recovered where there is an established business that has been making profits at a time not too remote. Southwest Battery Corporation v. Owen, supra; Rios v. Lowenfield, Tex.Civ.App., 289 S.W.2d 332, writ ref. n. r. e.; Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340; Richker v. Georgandis, Tex.Civ.App.1959, 323 S.W. 2d 90, writ ref. n. r. e. Under these authorities we are of the opinion that the court properly submitted the issue covering lost profits from the completion and sale or sale before completion of the Westbury project. We have examined the cases cited by appellants, and find nothing in them that militates against the rule as enunciated by our Supreme Court or against the recovery of profits in the instant case.

Appellants have allotted more than 100 pages of their brief to their contention that the court erred in holding that there is at law evidence to support appellee’s claims and the jury’s findings of contract and in refusing to hold that the jury findings of contract are against the overwhelming weight and preponderance of the evidence and manifestly unjust. We have read the statement of facts consisting of more than 2500 pages and have concluded that we cannot say that the jury findings are not supported by any evidence or that they are against the great weight and preponderance of the evidence. Keith testified very definitely as to the agreement he had with Berne in 1954 and also as to the agreement reached in 1956 in Brooks Sandwich Shop. With respect to such agreements it is largely Keith’s word against that of Berne since no other parties were present at the time either agreement was entered into. It is true there is much conflicting evidence, but there is a thread running through the record and the testimony of Berne as well as other witnesses which at certain points tends to corroborate Keith’s contentions, at least in part, with respect to the alleged oral agreements upon which he bases his suit. The jury had all of the evidence before it and resolved the conflicts in favor of Keith. The trial court, after hearing all of the evidence and observing the attitude and demeanor of the witnesses, refused to set aside the jury findings on the ground of insufficient evidence to support them. We cannot say that the court erred.

One of the main points of disagreement between the witnesses was as to when Keith and Berne came to an agreement with respect to the percentage of net profits which he was to receive. Keith testified that at the Brooks Sandwich Shop meeting in March or April, 1956, they agreed that the 10% net profits and the investment interest owned by Keith would be merged and combined into a 10.9% interest for Keith in the net profits of the Westbury project before taxes. Berne, on the other hand, contended that such agreement was not made until in August, 1958, contemporaneously with their efforts to arrive at and enter into a written agreement reflecting their arrangement. We think Keith’s testimony in such connection is corroborated by that of John Crooker, Jr., and also by Berne, who testified as follows:

“Q Did you mention the price of 10% to Mr. Keith at Brooks Sandwich Shop?
“A I mentioned the figure 10%. I don’t call it a price.
“Q You mentioned it. He didn’t?
“A That’s right.”

Mr. Berne admitted that he had told Mr. Westheimer that he had had some discussion with Mr. Keith about a percentage of the profits in Westbury as far back as the year 1956. There is also in evidence a letter dated July 22, 1958 addressed by Berne to Keith with respect to the development and/or building program of Berne and his companies in or near New Orleans, Louisiana. In such letter he confirmed their understanding to the effect that Keith was to have no participation in the New Orleans activities and no additional compensation for his services, “ * * * it being understood that the arrangements which we have with reference to your services for the Westbury development in the City of Houston, Texas, will also be payment in full for your services rendered and to be rendered by you in connection with the above referred to New Orleans program.” This letter is significant because of the fact that it preceded the negotiations made later in 1958 with respect to a written contract. Without undertaking to quote further from a very voluminous record, it will suffice to say that basing our opinion upon the entire record, we have concluded that the findings of the jury with respect to the contractual relations of the parties are not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W. 2d 660; Tudor v. Tudor, 158 Tex. 559, 314 S.W.2d 793; Dyer v. Sterett, Tex.Civ.App., 248 S.W.2d 234, writ ref. n. r. e.

We think there is no merit in appellants’ contention that Keith’s investment interest is still in effect because it is an interest in land that could not be divested without a written instrument. Defendant’s Exhibit 16, which appellants assert gives Keith 1%' interest in the lands comprising West-bury, is not a memorandum signed by Berne and cannot be construed as giving Keith any interest in the land as such. The exhibit is merely a letter addressed by Keith to Berne confirming the understanding between the parties that the $5,000.00 invested by Keith in Realty Funding Company would give him a 1% of the profits earned by the Westbury group of companies. This letter was not signed by Berne in the space provided for his acceptance, and even if it had been, it would not be a sufficient memorandum evidencing a sale of an interest in land but merely an agreement with respect to profits earned by the Westbury group of companies. Moreover, Berne testified with respect to the $5,000.00 investment made by Keith, that he did not give him a 1 % interest in the subdivision for his $5,000.00 but agreed to give him 1% of the profits, after taxes, made by the project. This 1% of the profits was merged with the 10% interest in the profits by the agreement in March or April, 1956 at Brooks Sandwich Shop, thus giving Keith a 10.9% interest in the net profits of the project before taxes.

Appellants next complain that Keith’s claims and the jury’s findings are too vague and indefinite to create a contractual obligation and particularly that there is a complete absence of testimony of any obligation by Berne to sell all or any of the land, or to sell at any specified time, and hence an absence of any definite obligation with respect to the completion and sale of the property and the payment of profits. We do not agree. The fact that the properties were owned by Berne and that Keith and the other “investors” were to participate only in the profits at the completion of the project or when sold, does not render the agreement too indefinite or affect the obligation. In Sapphire Royalty Co. v. Davenport, Tex.Civ.App., 306 S.W.2d 202, writ ref. n. r. e., this Court upheld an employment contract “for such period of time as said leases shall be operated and held by the assignee hereunder, or those holding by, through or under him.” It is true that the project might be completed in a short period of time or that its completion might be postponed for years. Where no time is specified for the completion of a project, ordinarily a reasonable time would be implied. Smith v. Lane, Tex.Civ.App., 236 S.W.2d 214. In Palmer v. Katz, Tex.Civ.App., 210 S.W.2d 451, writ ref. n. r. e., the court stated in substance that the failure of an executory contract to state the time within which it is to be performed does not render it void for uncertainty, since it will be implied that performance is to be within a reasonable time; nor is a contract fatally indefinite because it does not specify a time presently definite for its termination. The court further stated:

“The same degree of certainty is not \ required in an action for damages as is required to warrant a decree of specific performance. * * * ‘A contract is sufficiently definite and certain if it leaves no reasonable doubt as to what the parties intended and as to the spe- v cific thing that the Court is' called upon to have performed. Absolute and positive certainty is not required; reasonable certainty is sufficient.’ ”

The cases cited by appellants in support of their contention that the agreement was too indefinite are factually distinguishable from the instant case. Clearly the contracts in Gordon v. Emerson Shoe Co., Tex. Civ.App., 242 S.W. 791, and in Staley v. Harvey, Tex.Civ.App., 226 S.W.2d 897, writ ref. n. r. e., relating fio the future delivery of personal property, were too indefinite and unenforceable for want of consideration and mutuality. In the instant case the agreement was for the payment of a percentage of profits produced or generated from a specific project and supported by a consideration and mutuality of consent and obligation. In this respect the agreement is unlike that in Yerion v. Allison, Tex.Civ. App., 242 S.W. 270, cited by appellants, in which it was held that “agreements” to do certain things “ * * * until we could get some money out of the oil game and put us both in good shape” and “ * * * assist in tiding over defendant’s financial difficulties” furnished no measurable bases to determine either “ * * * how much money should be raised to satisfy these terms of the agreement” or to “ * * * say with any certainty just what the plaintiff could be required to do in order to fulfill the .obligation which he thus assumed.”

Appellants’ next contention involves the no-evidence and insufficiency-of-evidence rules in respect to the jury finding of profits. Appellee’s first cross-point of error complaining of the trial court requiring a remit-titur will be considered in connection with appellants’ contention. The record with respect to profits both past and future is confusing. Such confusion is in part due to the use in the trial court of a blackboard up$n which various figures were written, changed, added and subtracted without sufficient explanatory testimony of record to apprise this Court of the respective contentions of the parties or the results reached. Thus the jury and the trial court had before them evidence or explanatory data which this Court cannot precisely appraise.

Special Issue No. 25 in effect inquires as to the present value of the total net profits which will in reasonable probability be ultimately realized upon completion and sale of the Westbury project or sale before final completion, without deduction or allowance of any salaries or compensation to Berne paid or to be paid, any federal income taxes paid or to be paid by Berne or any of thé named defendant companies, or any withdrawal by or conveyance to Berne of any of the properties that theretofore constituted any part of the 1700 acres conveyed by Joseph and George Meyer. The jury answered: “$7,119,465.00.”

In trying to determine whether the jury finding is supported by sufficient evidence and also whether the trial court properly required a remittitur of approximately one-half of the amount found by the jury, we are confronted with a very difficult and complex record and much conflicting testimony. There is evidence that an audit of appellants’ books and records by an impartial auditor would have cost some $20,000.-00. Such an audit was not made.

Counsel for appellee had requested the jury to find $7,119,465.00 past and future profits and had argued that there was $2,-316,900.00 past profits and that Keith’s projection for future profits was $4,802,565.00. The jury was not requested to find separately past profits and future profits. We think there is evidence that will support findings of both past and future profits. The difficulty is in determining the amount of past profits and the amount of future profits that in all reasonable probability would be realized. Appellee’s witness Cruikshank, who was given an opportunity to examine appellants’ income tax returns and books, testified from such books and also from re- • ports made by other persons. He tabulated from the tax returns income of certain of the defendant companies and supplemented the income of such companies to December 31, 1960 by figures taken from the companies’ records kept on IBM machines.-'

Cruikshank added up for company income and Berne’s personal income a total of $3,197,817.74. From this there would have to be deducted, according to our calculations, inter-company profits and various other items aggregating more than $1,000,-000.00. We think the evidence would warrant a finding of approximately $2,000,000.-00 past profits, and certainly as much as $1,-570,000.00, to which amount Beerman- had reduced by spot check Cruikshank’s determination of taxable income as shown by tax returns.

In our opinion Keith’s projection of future profits in the sum of $4,802,565.00 is out of line and not supported by the evidence. He testified to certain recent sales based in part upon hearsay evidence, and used the price scale of individual lots and not the price of substantial bulk sales, three of which (one involving 100 lots) had been made in 1960. He testified that he would guess 250 or 300 lots were sold last year, but it was just a wild guess and he had no way of knowing. In estimating profits on the future sale of 939 unsold paved lots he made no deduction for paving costs, although it was shown that paving costs on any lot may not be deducted until the lot is sold. The paving costs of such lots at $600.-00 per lot would aggregate $563,400.00. Keith also included in his projection a filling station at $62,000.00, saying he did not know of its sale for $26,000.00. He valued the other filling stations at the same amount or more than $62,000.00. He admitted that 15 lots in Westbury Sections 1 and 2, which he had valued at $2,940.00' per lot, had been on the market for sale for 5 or 6 years without a buyer being found.

It is our view, based upon the evidence, that not only the filling stations but other tracts were given greatly inflated values by Keith. Appellants contend ’tSat'SHiother check of such inflation is furnished by the alleged fact that 66.5 reserve acres had been sold for $945,313.00 or $14,203.00 per acre, whereas Keith projected the value of the balance of 73.7 acres at $2,837,000.00 or $38,493.00 per acre. Appellants also point out that the James appraisal of the 26 acres in Westbury Square, Reserve D, at $1,300,000.00, a figure which Keith used, was an inflated valuation as shown by the fact that the 1956 Weingarten sale was at $12,300.00 per acre, and on such basis the 26 acres would have been worth at that time when Berne had- already had the title a year, only $321,242.00, and further by the fact that in 1958 said Reserve D was valued by Berne at $400,000.00. Furthermore, Keith allowing no paving costs for the reserves.

We think that there are other considerations that were disregarded by Keith in his so-called projection of future profits. It seems fairly certain that a large number of the most desirable lots had already been sold as well as the larger part of the Reserves, and that the unsold lots and some of the unsold Reserves had been on the market for years without buyers. Berne’s accountant Beerman testified that he didn’t believe the project had made any profits since August of 1959, and that since December 31, 1960 the corporations in West-bury Square had lost money and the corporations on Cruikshank’s list had lost.about $40,000.00 in January and also in February, and were probably losing $1,000.00 per day during the time of the trial. Berne also testified that all of Reserve E had been sold, thus eliminating on that item $11,282.00 from Keith’s projection.

In an effort to determine what the project would ultimately realize in profits, the cost of the property and the indebtedness against the same must also be considered. At the time of the trial the defendant corporations owed secured loans of $3,485,819.38, exclusive of interest. The companies’ money was largely invested in houses which were moving quite slowly. Only one house was sold in January, 1961, and the January expenses of the companies totaled $93,417.00, and the companies’ eight months’ expenses amounted to $551,084.00, and during the past year the building operations showed a loss. Furthermore, we find no evidence of any allowance of discount in Keith’s projection of future profits to obtain the present value thereof.

It would unduly extend this opinion, which is already too long, to discuss further evidence with respect to past and future profits. It is our view that the amount awarded is not supported by the evidence and that the trial court was warranted in requiring the remittitur. We cannot say that the evidence would warrant damages in a larger amount than that allowed by the court, but we think it will justify such allowance, and that the amount over the damages allowed should be treated as excess. The trial court had before it all the evidence, including the blackboard evidence or data not adequately supplied this Court, and concluded that the amount found. by the jury was influenced by imprope: '•onsiderations and was the result of passior and prejudice, and required the remittitur in question. This Court, in the light of all the facts and circumstances, cannot say the trial court’s order of remittitur was manifestly unjust. Flanigan v. Carswell, 1959, 159 Tex. 598, 324 S.W.2d 83

Appellants’ contention that the trial court should have granted a new trial because the verdict was tainted with passion and prejudice has given us some concern. The law is well settled that if the verdict is tainted with passion and prejudice it should be set aside and a new trial granted. It will be noted that the finding by the court of passion and prejudice is in connection with the amount of the verdict, the court saying that the award of damages is excessive and manifestly too large. We find no evidence that would warrant a finding that the entire verdict has been influenced by improper considerations or was the result of passion and prejudice. We do not think the trial court intended to find that it was so influenced since if the trial court had done so, it undoubtedly would have set aside the verdict and granted a new trial. It is our view that the trial court merely meant to say that the amount of damages awarded by the J jury in itself indicated that the jury was' influenced by improper considerations, or passion or prejudice, without any extrane-¡ ous evidence thereof, and that the verdidi was manifestly too large and excessive tol the extent found by the court. __J

In Dallas Railway & Terminal Co. v. Farnsworth, 1950, 148 Tex. 584, 227 S.W.2d 1017, the court said:

“ * * * The amount of the verdict itself, when considered in the light of the evidence in the record, may be enough to convince the Court of Civil Appeals that it was the result of passion or prejudice or other improper motive or was in disregard of the evidence. In our opinion there need not be extraneous proof of passion or prejudice on the part of the jury. Indeed, it would be in many cases very difficult and often impossible to make that proof. The foregoing conclusions find support in Judge Martin’s opinion, adopted by the Supreme Court, in World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962.”

The power of the trial courts and that of the Courts of Civil Appeals to determine initially whether a remittitur is proper are apparently the same. Under Rule 328, Texas Rules of Civil Procedure, it was not necessary for the trial court in the instant case to find that there was any passion or prejudice on the part of the jury as a prerequisite to requiring the remittitur, although the trial court possibly relying on certain early cases, may have thought otherwise. See Galveston, H. & S. A. Ry. v. Hynes, 1899, 21 Tex.Civ.App. 34, 50 S.W. 624, writ den. In Wichita Valley Ry. Co. v. Williams, Tex.Com.App.1926, 116 Tex. 253, 288 S.W. 425, the court quoted with approval the following statement of Justice Yantis in Wilson v. Freeman, Receiver, 108 Tex. 121, 185 S.W. 993:

“ ‘True, it is diffiaftlt to ascertain the amount of the excess, but this difficulty arises in most cases of excessive ver-diets. For instance, if a verdict is excessive on account of the passion and prejudice of the jury, aroused by inflammatory speech, it is difficult, and generally impossible, to ascertain, with accuracy, what portion of the verdict was assessed because of the influence of inflammatory speech, and what portion of the verdict was based on the proper elements of damage, legally recoverable; * * * All the Court of Civil Appeals can do, and all that is required of it to do, by said statute, is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation for the injury sustained, and treat the balance as excess.’ ”

This decision indicates that even if the excess in the award is due to prejudice or passion, it may not be necessary to grant a new trial. In the instant case is is our view that there is nothing to indicate that either the jury or the trial court was moved by improper considerations regarding the findings upon which the trial court based its judgment with respect to liability. We are of the opinion that the amount awarded appellee after the remit-titur was filed is, under all the evidence, reasonable and adequate compensation for damages sustained by him.

Appellants contend that recovery should he denied Keith because Berne did not violate any obligation owed Keith. We think the answers of the Jury to Special Issues Nos. 14 and 20, inclusive, are supported by ample evidence and establish a denial and renunciation by Berne of Keith’s contract and an anticipatory breach thereof. It is well settled that an anticipatory breach of contract is recognized in Texas. Preston v. Love, Tex.Civ.App.1951, 240 S.W.2d 486, and authorities cited.

We have carefully considered appellants’ other points of error and overrule the same.

The judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

text:
    F. H. VAHLSING, INC., Appellant, v. Lloyd M. READHIMER, Appellee.
    No. 7178.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 15, 1962.
    Rehearing Denied Nov. 12,1962.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    John B. Stapleton, Floydada, for appellee.
   CHAPMAN, Justice.

This is an appeal by F. H. Vahlsing, Inc., hereinafter referred to as appellant, Vahl-sing, or the corporation, from a judgment of the trial court sustaining venue in Floyd County on an action filed by Lloyd Read-himer seeking to recover upon an alleged oral contract he had with appellant whereby the latter would furnish onion plants; appellee would set them out, would water, cultivate, and fertilize them; and Vahlsing would harvest and market the onions. Ap-pellee alleged he entered into the contract with C. W. Duncan in Floyd County with Duncan acting on behalf of appellant; that the net proceeds from the sale of the onions, after deducting $.85 per sack for certain services rendered by appellant, would be divided on the basis of 80 per cent to appellee and 20 per cent to appellant; and that the onions were in fact raised, harvested, and sold and the net proceeds to him on the basis of 80 per cent would have been at least sixty-eight hundred dollars ($6,800.00).

The corporation filed its plea of privilege to be sued in Hidalgo County, the county of its corporate residence. The plea was duly controverted and venue alleged to be in Floyd County under Subdivision 23 of Article 1995 Vernon’s Ann.Tex.Civ.St, the pertinent part of which provides suits may be brought against a private corporation in the county in which the cause of action or part thereof arose. The trial court, after hearing the testimony of three witnesses for appellee, overruled the plea of privilege. Appellant offered no testimony.

Appellant contends a cause of action was not proved anywhere, because appellee depended upon a percentage of the net pro-' ceeds for recovery and no proof was made that any monies were received. It also contends that any contract relied upon was made, if made at all, in Mathis, outside of Floyd County. Much of appellant’s contention that a cause of action was not proved depends upon its theory that certain telephone conversations between F. H. Vahl-sing of New York, president of the corporation, Mr. Stapp, his manager at Mathis, and Duncan were not admissible. The points are so related we shall not attempt to discuss them separately.

Appellee is a Floyd County farmer. In the spring of 1959 he made two trips to Mathis, Texas, near Corpus Christi, looking for onion plants to set out on his farm in Floyd County. On the first visit, he talked with Mr. Stapp, appellant’s manager in that county. Mr. Duncan was also at the Vahlsing properties on the occasion, which was a large operation with two gins, a vegetable farm, and a large office with a sign at the farm reading, “F. H. Vahlsing, Incorporated.” Mr. Stapp called F. H. Vahlsing person to person at New York by telephone from the Vahlsing, Inc. office. Appellee heard Stapp call him “Mr. 'Vahl-sing” and heard him explain that Mr. Duncan was down there, as were two farmers from Floyd County, who wanted to make a deal for onion plants. Mr. Duncan then talked to the man he called “Vahlsing,” and appellee testified he could tell from listening to the conversation at the Mathis end of the line that Duncan was to look after the Vahlsing interests in Floyd County. The following testimony was without objection except that it was hearsay. .

“Q. Did they discuss as far as you could tell over the telephone who was going to look after the F. H. Vahlsing Company’s interest in this contract in Floyd County?
“A. C. W. Duncan.
“Q. And they had that conversation there ?
“A. Yes, sir.”

Mr. Duncan also told the man he called “Mr. Vahlsing” that he would need some expense money that night. Following the conversation, Mr. Stapp then wrote out a check to Mr. Duncan. Mr. Belt, another farmer with Mr. Readhimer, overheard the telephone conversation, and corroborated appellee with the exception that he said the call was made either to New York or to New Jersey.

Following the conversation over the telephone, the parties in the Vahlsing office at Mathis then discussed the type contract they would enter into for the onion plants. Stapp and Duncan discussed it, and Stapp then told the farmers the Vahlsing corporation would furnish the plants; the farmers would set them out on their farms, would water, cultivate, and fertilize; and Vahlsing would then take over when they were ready to harvest. Eighty-fi^e cents ($.85) per sack would be deducted for expense of grading, sacking, brokerage, etc. Then the remainder would be divided 80 per cent to the farmers and 20 per cent to Vahlsing. Appellee a few weeks later flew down with another farmer to the Vahlsing operation at Mathis and Mr. Vahlsing was there at the farm. They discussed the contract again on the same basis. The testimony shows:

“Q. Did you discuss with Mr. F. H. Vahlsing whether or not the farmers would enter into a contract?
“A. Yes, sir. After we got back there and we got the plants and they said — Mr. Vahlsing said that they would send some contracts out of Hereford over there and let each farmer that went into contract — I mean that wanted to put out the onions go into , contract.
“Q. And who did he say if anyone, would represent F. H. Vahlsing Company ?
“A. C. W. Duncan.
“Q. Entering into those contracts?
“A. Yes, sir.
“Q. Did you enter into any contract, specific contract, with Mr. F. H. Vahlsing while you were down there?
“A. No, sir.
“Q. At Mathis, Texas, when you saw him on that occasion ?
“A. No, sir.”

With respect to the contract finally entered into the testimony is as follows:

“Q. Now, I thought I understood you to testify a moment ago that Mr. Vahlsing said that you would make your contract with C. W. Duncan, is that right?
“A. Yes, sir.
“Q. For the Vahlsing Company?
“A. Yes, sir.
“Q. Did you have any conversation with Mr. Duncan with reference to planting any onions?
“A. Yes, sir.
“Q. And with reference to your own situation just tell us what that conversation was, how many acres of onions you were to plant, what you’ were to get, what you were to he furnished and all that sort of thing?
“A. They — F. H. Vahlsing Company was going to furnish the plants—
“Q. Tell us what Mr. Duncan said to you and what you said to him.
“A. Well, Mr. Duncan told me that F. H. Vahlsing Company would furnish the plants if we would set them out and harvest — I mean and cultivate them and fertilize them and water them up to the time of harvest * * *
“Q. All right, sir. Who was to take over at the time of harvest, if anybody ?
“A. F. H. Vahlsing Company.
“Q. What were they to do?
“A. They were supposed to — they were going to harvest the onions, bring them into Lockney to the grader and grade them for $.85 a sack, that included the brokerage too.
“Q. What did C. W. Duncan say about who would market the onions, sell them?
“A. F. H. Vahlsing Company.
“Q. Did he tell you that?,
“A. Yes, sir.
“Q. All right, sir. Based upon his conversation with you there in that respect what did you say you would do, if anything, about planting any onions ?
“A. I told him that I would take enough plants to set out about 11 acres.
“Q. On the basis that he had been talking about?
“A. Yes, sir.
“Q. Did or not F. H. Vahlsing, Incorporated, deliver you any onion plants ?
“A. Yes, sir.
“Q. Where? In Floyd County, Texas?
“A. To the onion shed in Lockney.
“Q. Did you or not pursuant with your conversation with Mr. Duncan there plant any onion plants?
“A. Yes, sir.
“Q. How many acres ?
“A. About 11 acres.”

Appellee raised the onions, plowed them out of the ground, and Latin Americans employed by Duncan for Vahlsing, Inc., hauled them to the sheds where they were graded, sacked, and hauled away. The Latin Americans found it necessary to sue appellant to recover for part of their labor in that connection, and we sustained a lower court judgment on October 1, 1962, in Cause No. 7174 holding appellant liable for that labor. Vahlsing defended that action on the ground that Duncan was an independent contractor. We sustained the jury finding that Duncan was acting for Vahlsing.

As part of the harvesting of the onions in 1959, Eligiro Adames testified he entered into a contract with Mr. Duncan acting for Vahlsing, Inc. to run the corporation’s packing shed. He testified he had known F. H. Vahlsing since 1938 and recognized his voice from New York when he talked with him from the Vahlsing telephone at Lockney. The Readhimer onions were part of the onions Adames graded and sacked in the summer of 1959.

Under this record we hold the testimony given concerning the conversations over the telephone was admissible. There could be no question whatever of the admissibility of Adames’ testimony, because he had known F. H. Vahlsing personally for 21 years and recognized his voice. Gleason v. Davis, 155 Tex. 467, 289 S.W.2d 228. When the subsequent events concerning the onion contract following the telephone conversations are taken into consideration, we believe Mr. Vahlsing was also sufficiently identified in the other telephone conversations to make the testimony complained about admissible. Colbert v. Dallas Joint Stock Land Bank, 136 Tex. 268, 150 S.W.2d 771. Additionally, the material portions of the telephone conversation were had personally at the farm between Mr. Vahlsing and Mr. Duncan later at the Vahlsing farm in Hidalgo County and ap-pellee testified he heard Mr. Vahlsing tell Mr. Duncan he would let him manage the onion operation in Floyd County for F. H. Vahlsing and Company. There was no objection whatever to that testimony. Under Rule 434, Texas Rules of Civil Procedure no possible harm could have resulted to appellant from the testimony given concerning the telephone conversation when the record is considered as a whole. From the statement of facts quoted above there was positive testimony that appellee did not enter into a specific contract at Mathis with Mr. Vahlsing or anyone authorized to act for him there. There was no agreement or even discussion on the number of acres appellee would set in onions. The testimony shows that agreement was had between appellee and Mr. Duncan in Floyd County, the latter acting for Vahlsing in the final meeting of the minds. No written contract was ever furnished by Vahl-sing, as the testimony indicates he promised to do, but there is an abundance of probative evidence by which the court could have impliedly found the oral contract was consummated in Floyd County. The record shows Vahlsing then delivered the onion plants to Floyd County; they were raised, graded, and sacked in Vahl-sing sacks in Floyd County; Vahlsing hired laborers to harvest them; the truckers hauling the onions to the shed used tickets bearing the name “F. H. Vahlsing, Inc.”; and they were shipped from Floyd County on shipping tickets bearing the name “F. H. Vahlsing, Inc.” The testimony further shows without contradiction that the onions were a very good grade, and the market price for onions of that quality at the time they were shipped was $3 per sack. Only $.85 per sack had to be deducted, leaving $2.15 per sack unaccounted for. Appellant has not paid appellee any part of that $2.15 per sack and has never accounted to him where any of it went. He simply hauled the onions away; and so far as this record is concerned, ap-pellee has had no word from him since. The contract provided appellant was to pay him 80 per cent of the net proceeds. Under this state of the record and for the purpose of the venue question, we believe there is sufficient probative evidence from which the trial court could have impliedly found that a part of the transaction creating both the primary .right and the part of the transaction which violated that primary right arose in Floyd County. Loessin & Herndon, Inc. v. Coffield Lumber Company, Inc. et ah, Tex.Civ.App., 280 S.W.2d 796 (writ refused); Alamo Products Company v. French, Tex.Civ.App., 316 S.W.2d 765 (NWH); Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674; Stull’s Chemicals, Inc. v. Davis et ah, Tex.Civ.App., 263 S.W.2d 806 (NWH) ; French Drilling & Well Service v. Wilson Manufacturing Company, Inc., Tex.Civ.App., 307 S.W.2d 624.

Upon a trial on the merits, appellee in order to recover will have the burden of proving the amount of his 80 per cent of the net proceeds. It is unnecessary to be that specific here so long as he has proved he has a cause of action. Victoria Bank & Trust Co'. v.' Monteith et al., 138 Tex. 216, 158 S.W.2d 63; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. We have already said we believe he has' met that burden here.

Accordingly the judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    Mildred W. BAKER, et vir, Appellants, v. H. B. STURGEON et al., Appellees.
    No. 7407.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 16, 1962.
    Rehearing Denied Nov. 13,1962.

      J. Donald McLaughlin, Fisher, McLaughlin & Harrison, Paris, for appellants.
    Howard S. Smith, Sulphur Springs, Woodrow H. Edwards, Mt. Vernon, for appellees.
   CHADICK, Chief Justice.

This is a common law tort action. The trial court rendered judgment awarding damages to the plaintiffs, appellees here, and the judgment is affirmed. The opinion filed herein September 11, 1962 is withdrawn.

Mrs. Cleo Sturgeon, wife of plaintiff, H. B. Sturgeon, died instantaneously in a head-on collision between the Sturgeons’ 1957 Plymouth sedan automobile and a 1960 model Chevrolet station wagon driven by Mrs. Mildred Baker. Mr. Sturgeon was driving westward on U. S. Highway 80, and Mrs. Baker was traveling eastward along the highway a few miles'west bf Waskom, Harrison County, Texas, when the collision occurred. The Sturgeon vehicle was occupied by Mr. Sturgeon and his wife, the station wagon by Mrs. Baker and. her young son. Besides fatal injury to Mrs. Sturgeon other occupants of both vehicles were injured in varying degrees.

H. B. Sturgeon and Ann Sturgeon, the seventeen year old- daughter of the deceased Cleo Sturgeon, brought suit against Mrs. Baker and her husband, Omor Baker, in a District Court of Hopkins County, for damages accruing to them as a result of the collision. The Baker couple are non-residents of the State of Texas; the Sturgeons resided in Hopkins County. The answer filed by the Bakers, besides defensive pleading, contained a cross-action for damages against appellee H. B. Sturgeon. Eight of the appellants’ eleven points of error will be quoted and considered in numerical order; other points have been carefully considered and found not to present reversible error and are respectfully overruled.

“FIRST POINT OF ERROR:
“The Court erred in failing to grant a new trial because of the improper conduct of the jury in arriving at its answers to the questions propounded, to the prejudice of defendant. (Germane to Assignment of Error No. 14).”

The evidence offered upon the issue of jury misconduct was conflicting in its salient features. These contradictions were resolved by the trial court against the appellant. This court is bound by the trial judge’s fact finding on controverted issues of fact. State of Texas v. Wair, Tex., 351 S.W.2d 878; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462;. Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62; Saladiner v. Polanco, Tex.Civ.App., 160 S.W.2d 531, er. ref.; Thompson v. Railway Express Agency,. Tex.Civ.App-., 206 S.W.2d 134, N.R.E.; Martin v. Shell Oil Co.5 Tex.Civ.App., 262 S.W.2d 564, N. W.H:; Morgap v. State, Tex.Civ.App., 343 S.W.2d 738, N.R.E. The point is overruled.

“SECOND POINT OF ERROR:
“The Court erred in not permitting counsel for defendant to fully develop the improper conduct of the jury in arriving at its verdict and the prejudicial effect thereof. (Germane to Assignment of Error No. 14).”

The point is without a foundation in an assignment in the motion for ■ new trial. The brief indicates that the point is germane to Assignment of Error No. 14, but the ruling occasioning complaint occurred after the Amended Motion for New Trial was filed. There is no doubt that appellants are .entitled to have the point considered. See Jones v. Elliott, Tex.Civ.App., 259 S.W.2d 288, N.R.E., 263 S.W.2d 250; Thompson v. State of Texas, Tex.Civ.App., 311 SW.2d 927, N.R.E., and Bunker v. Johnson, Tex.Civ.App., 282 S.W.2d 884, N.W.H.

Appellants, in argument under this point, identify the jurors Olin Perkins, H. G. Parish, and Mrs. Lonnie Campbell, each of whom was examined in the jury misconduct inquisition, as the source of evidence of jury misconduct the trial court’s rulings prevented them from developing. The affidavit stating the facts of misconduct attached to the amended motion for new trial contained the statement that the juror, Mrs. Campbell, had related to the affiant that the jury considered the loss of society, affection and companionship of Cleo Sturgeon in arriving at the damages sustained by appel-lees, H. B. Sturgeon and Ann Sturgeon. The affidavit did not mention juror Olin Perkins, and stated only that H. G. Parish “advised that * * * he was through with the case”.

The record shows that in each instance, when the ruling now the basis of complaint was made, a bill of exception was not made or requested showing the testimony the jurors would give if permitted to answer the propounded questions.

Examination of all cases since Roy Jones Lumber Company v. Murphy, 139 Tex. 478, 163 S.W.2d 644 involving a limitation on admission of evidence of jury misconduct indicates that the excluded evidence was brought forward for appellate review by a bill of exceptions or that the trial court refused a request for permission to make a bill; none appear to have considered a complaint where the record was similar to this under discussion. Thompson v. State, Tex.Civ.App., 311 S.W.2d 927, N. R.E. says:

“ * * * since appellant did not perfect his bill as to what these jurors did or what they saw or what discussions or comments were made by them while they were there, we cannot say that such conduct constitutes reversible error as a matter of law. * * * It was appellant’s duty to perfect his bill of exception. See McCormick & Ray Texas Law of Evidence, p. 25, par. 20; McAuley v. Harris, 71 Tex. 631, 639, 9 S.W. 679; Shippers Compress & Warehouse Co. v. Davidson, 35 Tex. Civ.App. 558, 80 S.W. 1032; Martinez v. Pena, Tex.Civ.App., 139 S.W.2d 337, point 5; see also City of Corsicana v. Marino, Tex.Civ.App., 282 S.W.2d 720, points 3 and 4; 3A Tex.Dig. Appeal & Error

In the later case of Moran Utilities Co. v. McHaney, Tex.Civ.App., 325 S.W.2d 712, N.W.H. it is said:

“Where no affidavit or other written statement of a juror is furnished the court in a comparable situation, it is incumbent upon the party complaining to make a bill of his proffered testimony or a sufficient part thereof to show the court his action is based ‘upon knowledge and not suspicion or hope.’ [139 Tex. 478, 163 S.W.2d 646] Nunn v. Daly, Tex.Civ.App., ISO S.W.2d 834; Hobbs v. Slayton, Tex.Civ.App., 265 S.W.2d 838. * * * ”

The absence of a record showing the answers expected from the jurors Perkins and Parish, and that such evidence would have been favorable to the appellants’ contention, subverts the base of review on appeal. Excluding the testimony of jurors Perkins and Parish is not shown to be reversible error.

Refusing to permit an answer to this question, “Mrs. Campbell, did the jury agree that some damages should be awarded to Mr. Sturgeon and the daughter by reason of the loss of companionship of Mrs. Sturgeon?” casts the complaint about the exclusion of Mrs. Lonnie Campbell’s answer in a different light to that of the jurors Perkins and Parish as the affidavit on file shows that counsel for appellant had reason to expect an affirmative answer from Mrs. Campbell. The court sustained the objection to this question on the grounds that it was repetitious. Previous to asking the quoted question counsel for appellant propounded a question and received an answer as follows:

“Q. Do you recall, Mrs. Campbell, your talking about and other jurors talking about the loss to these parties by reason of the loss of companionship and affection of Mrs. Sturgeon?
“A. Yes, we did.
“Q. And that was one of the things you talked about in the jury room.
“A. Yes.
“Q. And you took that into consideration?
“A. Yes.”

Plainly the answer excluded was in reply to a repetitious variant of a former question. Admission of an answer to the repetitious question was discretionary with the trial judge. See Finto v. Texas & New Orleans Railroad Co., Tex.Civ.App., 265 S.W.2d 606; N.W.H.; Trousdale v. Texas & New Orleans Railroad Co., 154 Tex. 231, 276 S. W.2d 242; Walker v. Thompson, Tex.Civ.App., 287 S.W.2d 556, N.R.E. Reversible error is not shown.

“THIRD POINT OF ERROR:
“The Court erred in failing to submit to the jury either of the defendants’ requested special issues making inquiry of the jury as to whether or not the plaintiff failed to timely apply his brakes. (Germane to Assignment of Error No. 12).”
“FOURTH POINT OF ERROR:
“The Court erred in its refusal to submit an issue to the jury making inquiry as to whether or not the accident was unavoidable accident as requested by defendant. (Germane to Assignment of Error No. 12).”

Counsel requested the trial judge to give seven special issues, among them the issues mentioned in the two points of error quoted. All requested issues were refused. The assignment of error in the motion for new trial was:

“12. The Court erred in failing to submit to the jury defendant’s requested special issues, each and all of them thereby depriving defendants of defensive issues that they were entitled to have presented to the jury in their behalf to the prejudice of defendants.”

These two points of error must be overruled because the assignment is multifarious and does not distinctly point out a particular act alleged to be erroneous. The assignment complains of the failure of the court to give all requested special issues, as well as each of them, but does not single out a specific issue and bring it to the court’s attention. The points briefed are failure in two instances to give particular requested issues. Abandonment of the other five requested issues appears to be a concession that the request as to the abandoned issues was not meritorious. The assignment cast upon the trial judge the task of sorting through the several requests to find which, if any, had merit. The assignment is not in compliance with Rules 320, 321, 322, and 374; it did not clearly identify and particularize appellants’ complaint in such manner that the trial judge, examining the motion, would understand the particular act of his that was said to constitute error. Wagner v. Foster, 161 Tex. 333, 341 S. W.2d 887; Ice Service Co. v. Scruggs, Tex.Civ.App., 284 S.W.2d 185, N.R.E. Point overruled.

“SIXTH POINT OF ERROR:
“The Court erred in permitting plaintiff to put on rebuttal witnesses unrelated to and not germane to any testimony put on by defendant, to the prejudice of defendant. (Germane to Assignment of Error No. 3).”

Rule 265 clearly sets out the order of proceedings in a trial by jury. It is there provided that after a party rests his case in chief the party will thereafter be confined to the proffer of rebutting testimony. See Ayers v. Harris, 77 Tex. 108, 13 S.W. 768; San Antonio & A. P. Ry. Co. v. Robinson, 79 Tex. 608, 15 S.W. 584. In this instance the appellee H. B. Sturgeon was cross-examined in an effort to show that his injuries, if any, were minor and of short duration. If Mr. Sturgeon thought the cross-examination damaged his case, procedure in accordance with the rule would have required him to offer evidence bolstering his testimony before resting his case. However, after the Bakers had rested their case Sturgeon called three witnesses to give testimony to his physical condition as it appeared to them before and after the 'collision. The order in which evidence is adduced at' a trial is a procedural incident to-be controlled by the trial judge, and he is allowed much discretion in the performance of this duty. See Trial-Civil Cases, 41-B Tex.Jur. Sec. 89, 90 and 91. In Lubbock Bus Co. v. Pearson, Tex.Civ.App., 266 S.W. 2d 439, Wr.Ref., N.R.E., it was held to be harmless error when the trial court permitted the plaintiff to offer his chief medical testimony after the defense had closed. Here, a consideration of the whole record leads to the conclusion that the error is harmless. Point overruled.

“SEVENTH POINT OF ERROR:
“The Court erred in submitting an inquiry of the jury as to future medical expense to be incurred by plaintiff, H. B. Sturgeon, and including the answer of the jury thereto in its judgment, because there is no evidence to warrant the submission of such issue. (Germane to Assignment of Error No. 81)” '

Evidence was offered which might be construed as proving that Mr. Sturgeon had completely recovered from his injuries, and that Mr. Sturgeon suffered a lung impairment antedating the time of the collision which was the cause of any disability then existing. One medical witness said recovery from the collision produced injuries was slower than normal because of the pre-existing lung condition. Another medical witness testified that Mr. Sturgeon was not able to hold steady employment at the time of trial because of the disabling effect of the injuries he had received. As a witness in his own behalf Mr. Sturgeon admitted the lung ailment and a deterioration in health preceding the collision date. He swore that on regaining consciousness after the accident he had pain in his head, chest, side, arms and legs, but that prior to the accident he suffered no pain in his chest. Since the collision he claims that he had been bothered by his nerves, arm, side and chest, and that his head hurt continually. Also he testified that he was unable to recall or remember events for any length of time, and did not think his physical condition was improving. In Edens-Birth Lumber Co. v. Wood, Tex.Civ.App., 139 S.W.2d 881, err. dism’d, judg. correct, it is said in passing upon a similar point of error:

“ * * * The jury had the right to take the nature and extent of her injuries and her progress toward recovery under the treatment she had received, and the reasonable cost of her medical and hospital treatment, in the past, her physical condition at the time of the trial, and estimate the necessity for medical and hospital treatment in the future, and the reasonable value of such future medical treatment and hospital expenses.”

The facts in evidence raise the issue, and it was properly submitted. Point overruled.

“TENTH POINT OF ERROR:
“The Court erred in submitting Special Issue No. 19 inquiring about expenses incurred by H. B. Sturgeon for the funeral of Cleo Sturgeon because there is no evidence to support any answer of the jury thereto, and the Court erred in entering a judgment based upon the jury’s answer to such issue. (Germane to Assignment of Error No. 10).”

Mr. Sturgeon testified that he received a bill from Tapp Funeral Home for $554.70, that he paid $125.00 for a cemetery lot, and $150.00 for a grave marker. He was asked “Do you know anything about whether those are reasonable charges in this area so far as you are concerned, charged for the lot and tombstone marker ?” He answered “Yes sir.” This point of error is sustained. It must be shown by probative testimony that the expense claimed is reasonable and necessary. Dallas Rwy. and Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377. No evidence supports the verdict. Point sustained.

“ELEVENTH POINT OF ERROR:
“The Court erred in not requiring the plaintiffs to make a remittitur of the award. (Germane to Assignments of Error No. 1 and No. 4).”

The jury’s verdict upon the following six special issues were as follows: No. 16, $784.96; No. 17, $1,650.00; No. 18, $6,000.00; No. 19, $829.70; No. 20 (To H. B. Sturgeon) $20,000.00; (To Ann Sturgeon) $35,000.00.

Assignment of Error Nos. 1 and 4 in the motion for new trial are as follows:

“1. The verdict of the jury is contrary to the law and the evidence and the award of the jury is excessive from the standpoint of any evidence that was presented even if plaintiffs are entitled to recover and could only be arrived at by the jury giving consideration to matters not in evidence, or not properly considered by the jury.
“4. The Court erred in rendering judgment in the amount set out in its judgment because the same is excessive.”

In a Commissioner’s opinion adopted by the Supreme Court, Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407, after referring to an assignment that did not mention excessiveness of the verdict but did assert that the evidence did not support the jury’s verdict upon a designated special issue and was opposed to the great mass of the creditable testimony and was the result of prejudice, sympathy or passion, the opinion says that if such assignment amounted to an allegation of excessiveness it would be insufficient, saying in the latter respect as follows:

“ * * * As to that it is neither explicit nor precise, since it clearly charges that the vice complained of attached to the entire amount fixed by the jury, not to a part only as would he the case were the amount excessive. * * *»

The same conclusion was announced in a case much the same as this, Thompson v. Robbins, Tex.Civ.App., 297 S.W.2d 247 (affirmed 157 Tex. 463, 304 S.W.2d 111); See also Wagner v. Foster, supra. The point of error has no foundation in the assignments in the motion for new trial as it does not specifically point out the particular jury answer or answers that are excessive.

The judgment of the trial court will be reformed by deleting therefrom the item of $829.70 awarded by the jury in answering special issue No. 19, and a take nothing judgment rendered thereon; the judgment in all other respects is affirmed.

      . This refers to cases found in Shepard’s Southwestern Reporter Citations. Among the cases are some in which the text of the opinion does not clearly state how the excluded evidence was brought forward.