author: CHAPMAN, Justice.

text:
    Charles F. DERRICK et al., Appellants, v. COUNTY BOARD OF EDUCATION of DONLEY COUNTY, Texas, et al., Appellees.
    No. 7327.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 23, 1963.
    Rehearing Denied Jan. 20,1964.

      Underwood, Wilson, Sutton, Heare & Berry, Eolley, Snodgrass & Calhoun, Amarillo, for appellants.
    W. T. Link, Knorp'p & Slavin, Clarendon, for appellees.
   CHAPMAN, Justice.

This suit involves election contests filed by Charles F. Derrick and other residents of Clarendon Junior College District and purported district, some of whom were owners of taxable property and resided within the bounds of the district as it existed prior to the purported enlargement and some of whom were owners of taxable property and resided outside the bounds as it existed prior to the purported enlargement but within the purported enlargement.

One suit was filed contesting the election to enlarge the territory. Another was filed contesting the election to determine the power of the district to levy and collect ad valorem taxes for maintenance of public free schools in Clarendon Junior College District as purportedly extended, and thus give effect to the first election held to extend the territory of the district. The third was filed seeking to have the two elections declared null and void and for an injunction restraining appellees from attempting to give application to the elections with respect to attempting to levy, assess, or collect ad valorem taxes on any property not situated within the district prior to such elections.

Motions for summary judgments were filed by all parties and the three cases were consolidated. Upon the hearing the trial court overruled the motion for summary judgment of contestants and granted the motion for summary judgment of con-testees.

Reversal is urged upon thirty-seven points involving a myriad of irregularities in the elections, including the very authority of those who called the elections and declared the results to act, and the statutory authority to extend the Junior College District to the territory purportedly annexed.

The first question with which we are faced is the contention of contestees to the effect that contestants were without authority to sue as individuals hut that the contests could be made only through quo war-ranto proceedings.

The adoption of the constitutional amendment of 1891 gave district courts original jurisdiction to try contested elections. Article S, Section 8, Constitution of Texas, Vernon’s Annotated Texas Constitution, Volume 2. Jurisdiction is also given the district court by legislative enactment. Article 9.01, V.A.T.S., Election Code.

Contestants assert by brief that they as residents of the territory involved had authority to contest the elections under Article 5, Section 8, Constitution of Texas, as effectuated by Articles 9.30 and 9.31, V.A.T.S., Election Code. Those two articles were respectively 3069 and 3070 R.C.S. 1925; 3077 and 3078 R.C.S.1911; 1804t and 1804u R.C.S.1895; and 1752 and 1753 R.C.S.1879. The articles read as follows:

Article 9.30
“If the contest be for the validity of an election held for any other purpose than the election of an officer or officers in any county or part of a county or precinct of a county, or in any incorporated city, town, or village, any resident of such county, precinct, city, town, or village, or any number of such residents, may contest such election in the district court of such county in the same manner and under the same rules, as far as applicable, as are prescribed in this chapter for contesting the validity of an election for a county office.”
Article 9.31
“In any case provided for in the preceding Section, the county attorney of the county, or if there is no county attorney, the district attorney of the district, or the' mayor of the city, town or village, or the officer who declared the official result of said election, or one of them, as the case may be, shall be made the contestee, and shall be served with notice and statement, and shall file his reply thereto as in the case of a contest for office; but in no case shall the costs of such contest be adjudged against such con-testee, or against the county, city, town, or village which they may represent, nor shall such contestee be required to give bond upon an appeal.”

All emphases herein are ours unless otherwise stated.

Thus, even though some of the predecessor articles to these just quoted were first enacted long before the 1891 amendment of Section 8, Article 5, of the Texas Constitution, it was uniformly held by our Supreme Court prior to the adoption of the 1891 amendment that the district court was without jurisdiction to try contested elections. De Shazo v. Webb, 131 Tex. 108, 113 S.W.2d 519.

In the case just cited the court held in effect that Articles 3069 [9.30, Election Code] and 3070 [9.31, Election Code] have been properly re-enacted since the adoption of the constitutional amendment of 1891, above mentioned, and that they plainly provide who can bring the contest and who shall be made the contestees. It is obvious that contestants brought their suits under such articles, naming the county attorney of Donley County, the county superintendent thereof, and the county board members as contestees.

Accordingly, the “cases” referred to in Section 21, of Article 5, Texas Constitution, and “suits and pleas” referred to in Section 22, Article 4, Texas Constitution, with respect to the county and district attorney and attorney general representing the State, of which free public school districts" are political subdivisions, have no reference to contested elections; i. e., legislative acts provided for in Section 8 of Article 5, Constitution of Texas. De Shazo v. Webb, supra.

“The capacity conferred by articles 3069 and 3070 [superseded by articles 9.30 and 9.31, Election Code] on certain parties to contest elections, other than for the purpose of electing officers, is not based on any individual property right; but upon the theory that a remedy should be furnished, legislative in its nature, whereby * * * elections may be contested * * DeShazo v. Webb, supra.

In a suit contesting the authority of a wife of an impeached former governor to have her name placed upon the ballot for Governor of Texas, where the suit was brought by a person having no more interest in the subject matter than to preserve the public interest, our Supreme Court in Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012, held: “His lack of special interest is fatal to his capacity to maintain his suit in the absence of a valid statute authorising him to sue.” Here we have valid statutes [Articles 9.30 and 9.31, Election Code], legislative acts, authorizing any resident or any number of residents within any county or part of a county to contest an election held for any other purpose than the election of an officer or' officers.

Even if it should be said that quo warranto was an appropriate method of contesting the elections here considered, such proceeding is only cumulative of other proper methods. Rule 782, Section 6, Vernon’s Ann.Texas Rules with respect to quo warranto proceedings provides: “The remedy and mode of procedure hereby prescribed shall be construed to be cumulative of any:now existing.”

Our Supreme Court in speaking of quo warranto has said “ * * * it has not been held that this is the only remedy that may be pursued, nor does the statute contemplate that it should.” McAllen v. Rhodes, 65 Tex. 348.

In Parks v. West, 102 Tex. 11, 111 S.W. 726, it was urged that the attack of plaintiffs was upon the corporate existence of Merten’s Independent School District in a collateral proceeding and that the validity of the incorporation could be questioned only by the State in a direct proceeding. Our Supreme Court said:

“ * * * the attack of the plaintiffs is not merely upon the corporate existence of the district, but is directed against the power of the defendants to lay burdens on their property and subject them to the payment of taxes. Surely they have the right to do that although the reason they assign for the lack of power may also go to the right of the district to exist under the Constitution. Certainly a property holder has the right to say to the court that he is protected by the Constitution from the imposition of a tax by persons to whom the Constitution, in effect, denies such power. If the rule relied on by defendants should preclude plaintiffs from making the contention now, when and in what way could they make it? So far as we can see, the rule would equally apply to an effort to resist the collection of the tax by suit or otherwise. The consequence to which the contention leads is that, while the Constitution does not permit such a school district to exist and levy taxes, it may yet do both and force property owners to pay until the officers of the state see fit to intervene. Useful and convenient as is the doctrine invoked, we cannot give our assent to an application of it, which would deny to the plaintiffs the protection sought of their property rights.”

Here, as in the case from which we have just quoted, the attack of appellants is also directed against the power of the purported district to lay burdens on their property and subject them to the payment of taxes.

A distinction is made in many of the cases by the acts that are merely voidable and those which are wholly invalid and void, as the acts are alleged to be in this case and as some of them clearly are. In City of Galena Park v. City of Houston, 133 S.W.2d 162, (error refused), the court held:

“It also follows as a corollary, from the construction herein given the Act under review, that appellant’s initial objection to the effect that its own incorporation could not be called into question, as was done in this proceeding, without the joinder of the State under a writ of quo warranto, is unsound; this, for the reason that its attempt to incorporate that portion of the territory already lying within such special limits of the City of Houston —being in contravention of a general law of the State — was wholly invalid and void, thereby subjecting such pseudo-incorporation to collateral attack without the joinder of the State”

See also Lynn County School Board v. Garlynn Common County Line School District, Tex.Civ.App., 118 S.W.2d 1070, second sentence, syl. 5 (writ refused); Town of Sunnyvale v. Dallas County Board of School Trustees, Tex.Civ.App., 283 S.W.2d 296 (N.W.H.); Mesquite Independent School Dist. v. Gross, 123 Tex. 49, 67 S.W.2d 242 (Com.App. opinion adopted).

In the Lynn County School- Board case just cited this court said:

“Since the purported grouping of the Magnolia district with the New Lynn Independent district was void, it is our opinion that the injunction proceeding herein was proper under the facts in this case, and we cannot agree with appellants that the only proceeding available to the appellees was that of quo warranto.”

In the Mesquite Independent School District case just cited the Supreme Court said: “Since the board acted without color of authority, and without potential jurisdiction, its order was and is uttérly void, and subject to collateral attack.”

At least two of the cases cited and relied on by appellees recognize that acts which are void are subject to collateral attack. In Kuhn v. City of Yoakum, 6 S.W.2d 91 (Tex.Com.App.), the court said: “A mere irregular exercise thereof did not render its act void, so as to subject the same to collateral attack

In Phillips v. City of Odessa, Tex.Civ.App., 287 S.W.2d 518 (N.R.E.) the court held the action of a municipality in extending its boundaries could not be attacked collaterally by individuals only “ * * * unless the action or ordinance was void on its face.1’

Therefore, we hold Articles 9.30 and 9.31, Election Code, confer on the contestants here the power -and authority to maintain the action they filed, there being no constitutional provision prohibiting them. De Shazo v. Webb, supra.

The next question with which we are faced is what irregularities may .be considered in connection with calling, holding and declaring the results of the election and giving effect to same.

In an election contest involving proposed amendments to a city charter if has been held that “ * * * an election is not a single event, but a process, aqd.-the entire process is subject..to contest,- including the manner of giving notice of the election, the manner in which the-ballots are prepared, and various othgr- things which of necessity precede an election.” Turner v. Lewie, Tex.Civ.App., 201 S.W.2d 86 (writ dismissed).

Our Supreme Court has said: “In determining what a ‘contested election’ is, we must bear in mind that an election in this state is not a single event, but a process, and that the entire process is subject to contest.” Dickson v. Strickland, supra.

We must then look to the acts involving the election to determine if they were void.

The record indicates clearly that the elections were attempted to be held under Article 2815h, Sections 21 and 21a, V.T.C.S. Section 21 provides that an independent school district or districts and a common school district or districts may be annexed to an adjacent junior college district. Here the Hedley Independent School District in its entirety was attempted to be annexed but was rejected by the voters. The other territory did not comprise one or more entire independent school district or entire common school district and the efforts as to that territory were therefore wholly invalid and void as without statutory authority.

Additionally, Section 21 of Article 2815h provides the petition for election shall be presented to the County Board of Education or to the County Commissioners Court in the event there is no County Board of Education. Donley County could not have had a County Board of Education because such a body is provided for only in a County Unit System. Chapter 12, County Unit System, Article 2703, V.A.T.S. The deposition of the County Superintendent shows without question that Don-ley County did not have a County Unit System. The petition for election was not presented to the Commissioners Court.

Article 2676, V.A.T.S., provides the general management and control of the public free schools and high schools in each county unless otherwise provided by law shall be vested in five county school trustees elected from the county, one of whom shall be elected from the county at large by the qualified voters of the county and one from each commissioner’s precinct by the, qualified voters of each precinct and who shall hold office for a term of two years.

A study of Chapter 11, Article 2676, V.A.T.S., et seq., titled "Schools” and a study of Chapter 12, Article 2702, V.A.T.S., et seq., with respect to the County Unit System shows the completely different duties and functions of the county school trustees and the County Board of Education. They are elected in a different manner, at a different time and for a different term. Also, the former is a body corporate while the latter is not. Under the County Unit System the county superintendent is appointed, while under the system providing for county school trustees the county superintendent is elected.

Ruth M. Richerson, County Superintendent of Donley County, was elected, and properly so, because the “evidence” clearly shows Donley County did not have a County Unit System and therefore could not have had a County Board of Education as that term is defined under the County Unit System. Therefore, the County School Trustees were wholly without authority to act in the calling of the elections or in canvassing the returns thereof and their acts were void and of no effect. Our court has held: “It is well established by the decisions that an election must be called by the authority designated by law, otherwise the election is void.” Pollard v. Snodgrass, Tex.Civ.App., 203 S.W.2d 641 (writ dismissed). We held similarly in Smith v. Morton Independent School Dist., Tex.Civ.App., 85 S.W.2d 853 (writ dismissed). In 129 A.L.R. on Page 261 it is stated:

“In cases where the body essaying to exercise the power of organization or annexation does so without jurisdiction, its action is void, and may be collaterally attacked in a suit for an injunction against the enforcement of a tax levied upon property thus ineffectually sought to be incorporated. Peru v. Bearss (1877) 55 Ind. 576; Dees v. Lake Charles (1898) 50 La. Ann. 356, 23 So. 382; Pool v. Townsend (1920) 58 Mont. 297, 191 P. 385; Hemple v. Hastings (1907) 79 Neb. 723, 113 N.W. 187; Leach v. Tillamook (1912) 62 Or. 345, 124 P. 642; Thurber v. McMinnville (1912) 63 Or. 410, 128 P. 43; Waco v. Higginson (1920; Tex.Civ.App.) 226 S.W. 1084 (reversed on other ground in (1922; Tex.Com.App.) 243 S.W. 1078); Port Arthur v. Gaskin (1937; Tex.Civ.App.) 107 S.W.(2d) 610.”

There are many other irregularities shown in the elections unnecessary' for us to discuss in view of what we have already said.

We believe under the authority of Lynn County School Board v. Garlynn Common County Line School District, supra, (writ refused) appellants were also entitled to the injunction sought, though that question becomes immaterial in view of our holding that the two elections were void and of no effect.

In their reply brief appellees raise the question óf sufficiency of service in Causes Nos. 3111 and 3112.

It is without question in the record that proper service and return was made on Edwin Eanes, one of the members of the Board which sought to order the election and declare the. result and who was present at each meeting. . This fact gave jurisdiction to the trial court so far as service is concerned even if service on some of the parties did not show a proper technical return. Funderburk v. Schulz, 293 S.W.2d 803 (N.W.H.). Proper service was also shown on the County Attorney of Donley County, who was made one of the contestees in accordance with Articles 9.30 and 9.31, Election Code. We believe under this record proper service and return on him would have been sufficient. Jordan v. Overstreet, Tex.Civ.App., 352 S.W.2d 296 (N.W.H.).

In Cause 3112 the return was signed by the sheriff of Donley County, without naming him, by C. Huffman, Deputy. It has been held that a return of service by any officer authorized by law to make it is prima facie evidence of the material facts recited therein.- Cortimiglia v. Miller, Tex.Civ.App., 326 S.W.2d 278 (N.W.H.). In any event, there is no contention made that service was not had and there is no question but that the parties appeared, answered and joined issues in the three suits. We believe, therefore, that the contentions on improper returns are without merit.

Accordingly, the summary judgment granted by the court for appellees was improper and the court should have granted the summary judgment for appellants. The judgment of the trial court is therefore reversed and rendered in accordance with this finding.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Lester W. PROKOP, Appellant, v. Linhart J. KRENEK, Appellee.
    No. 11133.
    Court of Civil Appeals of Texas. Austin.
    Jan. 8, 1964.
    Rehearing Denied Jan. 22,1964.

      Fulbright, Crooker, Freeman, Bates & Jaworski, St. John Garwood, Jr., Houston, for appellant.
    De Lange, Hudspeth & Pitman, Houston, for appellee.
   HUGHES, Justice.

Lester W. Prokop, appellant, sued Linhart J. Krenek for rescission of a sale of 6000 shares of stock in the Texas State Oil and Gas Corporation, a Delaware Corporation, made by Krenek to appellant and for the return of the purchase price paid therefor, $4000.00, with interest.

The sale of stock to appellant by Krenek was made May 25, 1959. Appellant pleaded that at such time the stock sold was not registered as required by the Securities Act (Texas) and he invoked the remedy of rescission as provided in the Act.

Appellee answered by pleading that any sale of corporate stock made by him to appellant was an exempt transaction under Sec. 5 of the Act.

Additionally appellee denied that a proper tender of the stock sold had been made and denied that all conditions precedent to his liability under the Act had been performed. He also alleged that a dismissal with prejudice of the Texas State Oil and Gas Corporation from this suit released him from liability herein.

Trial was to a jury. When the parties rested they each made a motion for an instructed verdict. The motion of appellant was denied; the motion of appellee was granted. Judgment that appellant take nothing by his suit was accordingly rendered.

The facts are rather involved and confusion is compounded by the presence, in the record, of two corporations, similarly named, the Texas State Oil and Gas Corporation, a Delaware Corporation, and its predecessor, The Texas State Oil Company, a Texas corporation. To lessen confusion, we will refer to the former as the “Delaware Corporation” and to the latter as the-“Texas Corporation.”

It is undisputed that the stock of neither corporation was registered by the Act or that a permit therefor had been is-, sued at the time of the sale of stock.from Krenek to appellant. It is of primary im-: portance, therefore, that we determine whether or not such sale was an exempt transaction under the Act. The burden of.establishing such exemption is, by the Act placed upon the person claiming shell exemption. This person is appellee and under; this record he must establish it by conclusive evidence in order that the judgment in his favor stand.

It is our opinion that the sale of stock from appellee to appellant was intended by appellee for the benefit, directly or indirectly, of another company or corporation, and hence not an exempt transaction under the Act. See footnote 2.

We will recite the pertinent facts as briefly as the record permits.

Appellee, his two brothers' and another person organized the Texas corporation in 1957. For a time they owned its controlling interest. Appellee was a director and officer of such corporation during all the times relevant to this suit.

In April 1959, appellee’s brother and two others organized the Delaware corporation and appellee, although not initially, subsequently became its vice president. The purpose of organizing this corporation was to increase the capital stock of the Texas corporation by exchanging three shares of stock in the Delaware corporation for one share in the Texas corporation. The Delaware corporation was to and did take over all the assets of the Texas corporation and it assumed all of its liabilities. The stockholders in both corporations were identical, only the amount of stock being increased by the ration of 3 to 1. This corporate succession was effected between June 5 and June 20, 1959.

Both corporations had in excess of 35 stockholders. See Art. 581-51, subd. I. Originally, the plan had been to increase the capital of the Texas corporation, “and to apply to the Securities Commission for increase in the sale price of shares.” Appel-lee and appellant were present at a stockholders’ meeting in Sealy, Texas where this was voted, in March, 1959. The Texas corporation never carried out this plan, however. At that time, appellee was a director and his brother,' Ray Rrenek, was secretary.

A group of stockholders, including the treasurer of the Texas corporation, L. J. Sulak, objected to the reorganization — “he didn’t want to go Delaware.” Accordingly, he arid others ’filed suit, as minority stockholders on behalf of the Texas corporation, and a temporary restraining order was entered and a copy served on appellee on May 8, 1959. The suit was against appellee, his brothers, Talasek, two other individuals and the Delaware corporation. The temporary injunction blocked the reorganization.

Appellant began buying stock in the Texas corporation in 1958 for $1 per share, acquiring a total of 960 shares by March 31, 1959. The total authorized capital of the corporation being 100,000 shares, of which approximately 85,000 had been issued at that time. Appellee remembered meeting appellant at a stockholders’ meeting in March, 1959. At this meeting the directors were voted authority to increase the capital from $100,000 to $300,000, appellant making the motion. Afterwards, appellee went by appellant’s place of business “several times” before making the sale to him in May. Appellant would inquire “how the company was,” appellee replying “I guess it was alright.” Appellee remembered that appellant had “seemed interested in the corporation” ever since the meeting. This interest prompted appellee to approach appellant in May, to sell him stock to raise money needed to buy out L. J. Sulak.

Appellee testified that he, his two brothers, Talasek and two others (co-defendants in Sulak’s suit) entered into a written contract to purchase the shares of Sulak and the other plaintiffs in such suit in May, 1959, for $1.50 per share.

This contract provided that upon its consummation the Sulak suit would be dismissed with prejudice. Appellee first testified that he entered into this contract after making the sale to appellant, then that he didn’t remember. However, he knew before he went to appellant that “If I could buy quite a bit of it (Sulak’s stock), I could get it for a dollar and a half a share.” He also testified:

“Q. Did you tell Mr. Prokop that?
“A. No. I didn’t tell him that, and I sold him mine for $2.
“Q. At the time you entered into this transaction with Mr. Prokop, you were a vice-president in the Texas State Oil & Gas Corporation?
“A. Right.
“Q. And a member of the Board?
“A. Right.
“Q. And as I understood you yesterday, you didn’t disclose to him that you intended to make a profit on this transaction?
“A. Individually, no.
“Q. Did you tell him about it?
“A. No, sir. Why should I tell him?
“Q. You didn’t, anyhow?
“A. No. I told him I would sell him mine for $2 a share.
“Q. And that was it?
“A. That was it.”

Appellant’s check for $4,000, “for 2000 shares of stock,” payable to “Texas State Oil Co., Inc.” (the Texas corporation) was taken by appellee to the President, Joe Krchnak, who endorsed it. It was then deposited in an account styled the “Musick and Musick collection account,” being handled by appellee’s .attorney, LeVoy Musick. Mu-sick used this money to pay for the Sulak group’s stock, to settle the Sulak suit.

Six days after the sale of stock here involved Mr. LeVoy Musick wrote the Texas •corporation and its directors in part, as follows:

“You gentlemen are to be congratulated upon saving the Texas State Oil Company, Inc. and at the same time, increasing the assets of the company, gaining new * * * stockholders for the •company * * * Your attorneys * * * are pleased and gratified that your excellent suggestions and cooperation contributed largely to the successful conclusion of this dangerous litigation.”

Appellee testified that he paid $1.50 for the stock he bought from the Sulak group, $.50 per share less than he received from the stock sold appellant. Of the stock which appellee bought from Sulak he kept only “several hundred shares.”

Appellee also testified:
“Q. It was these lawsuits that prompted you to go to see Mr. Prokop?
“A. Not necessarily.
“Q. They had something to do with it, didn’t they?
“A. He wanted out. Mr. Sulak either bought us out or we bought him out.
“Q. Did that have something to do with your going to see Mr. Pro-' kop?
“A. Well, I needed money to buy him out.
“Q. Buy Senator Sulak out?
“A. Right.
“Q. And stop the lawsuit? Is that right ?
“A. I could have sold him all of my stock. It would have been stopped either way.
“Q. That same buying of the shares was what settled Mr. Sulak’s suit against you, wasn’t it?
“A. I would say it settled it. It didn’t have to.”

The Sulak litigation was settled June 1, 1959, six days after the sale to appellant.

While appellee testified that the stock sold appellant was his own, he testified rather ambiguously as follows:

“Q. All right. You never did hold any stock that you sold to Mr. Prokop, did you — keep it for a long time?
“A. No. Whenever I sold it to Mr. Prokop — I told Musick — he sold Mr. Prokop 2,000 shares of stock.
“Q. And you were going to get that • stock later from Senator Sulak?
“A. I didn’t know whether he was. going to get, it or not.
“Q. But you didn’t have it when you sold it to Mr. Prokop?
“A. Right. I didn’t have it.
“Q. .But you were going to get it later, by working this trade with Senator Sulak?
“A. Yes, sir. '
“Q. And you kept 50$ a share, yourself in cash? ,
“A.- Yes.” . -

The negotiations with Sulak' and his group were taking place at the same time as the sale to appellant.

On the joint' stock, records for the two corporations the sale to appellant is recorded, but no sale by appellee.

After the Sulak litigation was settled, the Delaware corporation qualified to do business in Texas, on July 23, 1959; After the transfer of assets was effected, the Texas corporation did no further business. Its right to. do ^business was forfeited December I, 1959 and charter forfeited July 27, 1960.

On June .5, .1959 a. letter addressed "Dear Stockholder” from Joe Krchnak, President of the Texas corporation, went out, soliciting-a vote in favor,of the proposed 3 for 1 exchange. Appellant voted his total of 2960 shares in favor. No certificate in either corporation had been tendered appellant at the time of purchase on May 25, 1959. The three-for-one exchange was approved by the Texas corporation’s stockholders. . -

The Delaware corporation never sold any stock.

Regarding the sale of stock to appellant, appellee further testified:

"Q. You sold him 2,000 shares of stock in what?
"A. The old company, Texas State : Oil -Company, Inc.
“Q. And that would be 6,000 shares-, in the new one?
“A. I imagine so.
"Q. Because you were getting three in the new one for one in the old one? , . .
“A. Right.”

Appellant testified, positively and .without dispute, that the only certificate he ever received was in the Delaware', corporation, being No. 474 dated June. 20, J959, for 6000' shares. ‘ This stock certificate was obtained' from LeVoy Musick, the secretary of the Delaware corporation. - ,

This certificate, properly endorsed for transfer, was sent to appellee on October 18, 1960, who returned it to appellant April 18, 1961. This suit was filed March 24, 1961. This stock certificate was re-tendered to appellee on the trial of this case, and its acceptance was refused.

Appellant' received no dividends from-the Delaware corporation stock. He did receive two fees for attending directors’' meetings of the Delaware corporation, one of which he kept.

,- This suit originally named the Delaware corporation as a defendant. It was dismissed as to such defendant with prejudice, the order of dismissal reciting that the suit as to appellee remain pending.

This, evidence is conclusive that the sale of stock by appellee to appellant was made or intended, by appellee for the direct or indirect benefit of the Texas corporation and its alter ego, the Delaware corporation.

Appellee testified that the purpose of the sale was because he needed money to buy the Sulak group shares of stock in the Texas corporation. The importance of this purchase is made obvious by the record. It was to end the litigation brought by the Sulak group which blocked the organization of the Delaware corporation which' was desired by another group of stockholders of the Texas corporation. The purpose of this reorganization was, as appellee testified, “I imagine it was to increase our capital in this thing.” The Delaware corporation had ten times the capital. stock of the Texas corporation and appellee testified that he “imagine (d)” that was one of the reasons for the reorganization.

Certainly, it seems to us, that the Texas and Delaware corporations were benefited by the settlement and dismissal of a vexatious suit which had the effect of blocking, temporarily at least, their reorganization which was desired by owners of a majority of the stock in the two corporations. Ap-pellee having testified that the sale of his stock to appellant was in furtherance of his plans to settle such suit it is our opinion that such sale, as a matter of law, was intended to benefit such corporations. Actual benefit to such corporations resulting from such sale is also shown in that the proceeds of such sale are shown to have been used in settling such suit.

We must now determine the validity of the tender made by appellant in order to comply with Art. 581-33, supra footnote 1.

There was no duty upon appellant to tender a director’s fee for attending a meeting of directors. This fee is not, in our opinion, an income or distribution received by appellant from or upon such stock. Since a director, as a rule, is not ■entitled to compensation for his services, we presume that the fee he receives is in the nature of an expense allowance. Mere ■stock ownership did not entitle him to this fee. It was paid as a consequence of his being a' director and attending a meeting of the directors. Although appellant had to be a stockholder in order to be a director he was not paid a fee for being a stockholder.

With reference to the tender of stock in the Delaware corporation rather than in the Texas corporation, appellee, in his brief, states:

“The evidence also shows that Texas State Oil Company, Inc. was incorporated under the laws of the State of Texas, with a total authorized capital of 100,000 shares, of the par value of $1.00 each. Its corporate purposes were limited to engaging in, transacting and carrying on the business of prospecting for and mining and drilling for oil, gas and all other minerals and doing all things in connection with or incident to the transaction of that. business. This corporation remained in existence until July 27, 1960, when its charter was forfeited by the Secretary of State. On the other hand, the Texas State Oil & Gas Corporation was incorporated under the laws of the State of Delaware, with its principal office in Wilmington, Delaware, with all of the powers conferred by the laws of the State of Delaware, specifically ■including powers to limit the rights of shareholders to inspect the books and records of the corporation and to sell, ■lease and exchange all of its' assefs upon - a vote of the majority of the issued and outstanding stock-. The Delaware corporation had extremely broad and varied (almost universal) purposes, and had an authorized capital of 1,000,000 shares of the capital stock of par value of $1.00 each. The evidence further shows that the Texas corporation, Texas State Oil Company, Inc., had all its 100,000 shares issued and outstanding at the time of the sale from appellee to appellant, whereas only 300,000 shares of the authorized 1,000,000 shares of the capital stock of Texas State Oil & Gas Corporation was issued.
“Appellant offered no evidence of any tender, or of any attempt to tender to appellee any shares of the capital stock of Texas State Oil Company, Inc., the Texas corporation, endorsed in form for transfer, prior to the institution of this suit. Instead, appellant only offered evidence that appellant had mailed to appellee a certificate representing 6,000 shares of the capital stock of Texas State Oil & Gas Corporation, the Delaware corporation, accompanied by a demand for payment to appellant of the sum of $4,000.00, together with interest from the date of the sale of 2,000 shares of the capital stock of Texas State Oil Company, Inc., by appellee to appellant.”

To permit this defense by appellee would be to reward him for his own dereliction. When questioned about the sale to appellant and his failure to deliver the stock certificate appellee testified:

“Q. Did you hand Mr. Prokop any certificates at the time you talked with him out there ?
“A. No, I didn’t have any. I turned mine in for exchange.
******
“Q. That was more than any 2,000 shares ?
“A. Right, because I was turning them in for this exchange, three for one.
“Q. What did you tell Musick when you turned in all of your shares ?
"A. They wrote out letters to all stockholders to turn their shares in.
******
“Q. At the time that you sold the shares of stock to Mr. Prokop, did you have any certificate in your possession representing any shares in the Texas State Oil Company, Inc.?
“A. No, I had turned them in.
“Q. Now, who had you turned them in to?
“A. To the company secretary for the transfer.
“Q. Did you tell Mr. Prokop that you had done that?
“A. Yeah, I told him I turned my shares in to the company. That was why I couldn’t give him any shares right then.
“Q. Did you instruct anyone to deliver any shares to Mr. Prokop?
“A. Yeah, I told the secretary of the company to issue him 2,000 shares of stock.
“Q. Did you tell him whose stock it was to be issued out of?
“A. My own personal stock.”

The letter referred to by appellee and introduced in evidence by him reads :

“TEXAS STATE OIL COMPANY, INC. “SEALY, TEXAS “June S, 1959
“JOE KRCHNAK,
“PRESIDENT
“Dear Stockholder:
“Your Company plans an advantageous and financially profitable move in the form of a stock exchange with the Texas State Oil & Gas Corporation. Under the plan, the Management will remain the same, the capital of your Company will be substantially increased, and you will receive 3 shares of stock for each share you now hold. A limited number of the new shares will be made available for purchase at $3.00 per share. Under this plan, your holdings are tripled in number of shares and the potential financial growth is unlimited.
“The Management enthusiastically endorses this plan and feels that you will want to give us your cooperation. Please write ‘Yes’ at the bottom of this letter, sign your name, and put it in return mail to your Company. We enclose a stamped envelope to your Company for your convenience. You may enclose your shares of stock, and we will forward your new shares, three for one, within 20 days of receipt.
“We extend kind personal regards and ask God’s blessings for you and your family.
“Sincerely "yours,
“THE MANAGEMENT
“By: /s/ Joe Krchnak “Joe Krchank, “President
“JK:sj
“I vote my shares 2960 yes “Signed: /s/L. wTProkop”

The old and the new corporations used identical stock certificate numbers and the same stock record book.

This evidence proves as a matter of law that appellee treated the 6000 shares of stock in the Delaware corporation as the equivalent of 2000 shares of stock in the Texas corporation. If this is not true then appellee convicts himself of selling appellant stock which he did not deliver and could never deliver. His instructions to the secretary of the Texas corporation to transfer 2000 shares to appellant are meaningless in view of his testimony that he had turned his stock in for exchange for stock in the Delaware corporation, unless by such instructions he meant the equivalent of 2000 shares in the Texas corporation, i. e. 6000 shares in the Delaware corporation.

It is our opinion that 6000 shares of stock in the Delaware corporation is the legal equivalent of 2000 shares in the Texas corporation, and that the parties so treated them. This practical construction of the sale is binding upon them. If appellant had tendered appellee 2000 shares of stock in the defunct Texas corporation devoid of its exchange privilege for stock in the Delaware corporation we have no doubt but that the tender would be inadequate.

The dismissal, with préjudice, of the Delaware corporation from this suit does not release appellee from liability. Ap-pellee and such corporation are not shown to be joint tort feasors. The release was not given in satisfaction of any damages to appellant. The release expressly reserved the cause of action against appellee. See Skyline Cab Co. v. Bradley, Tex.Civ.App., 325 S.W.2d 176, Houston Civil Appeals, writ ref., n. r. e., 36 Tex.Jur., Release, Secs. 22 and 24.

It is our opinion that the Trial Court should have sustained appellant’s motion for an instructed verdict and should have overruled appellee’s motion. It is accordingly ordered that the judgment of the Trial Court be reversed and that judgment be here rendered that appellant recover of and from appellee the sum of $4000.00 with interest at the rate of 6% per annum from May 29, 1959, the date of the stock purchase (Art. 581-33), and all costs of suit. It is further ordered that the Clerk of the Trial Court deliver to appellee the stock certificate for 6000 shares in the Delaware corporation held in the registry of the Trial Court upon satisfaction of this judgment.

Reversed and rendered.

      .Art. 581-33 provides in part:
      “Every sale or contract of sale of any security made in violation of any provision of this Act shall be voidable at the election of the purchaser, who shall be entitled to recover from the seller in an action at law, upon tender to the seller of the security sold, in proper form for transfer, together with the amount of all dividends, interest, and other income and distributions received by the purchaser from or upon such security, the full amount paid by such purchaser for such security, with interest from the date of purchase; * * * and provided further, that no purchaser shall bring any action under this Act against the seller unless: (1) at least fifteen (15) days before filing suit; he shall have made a written demand on the seller for a refund of the full amount paid by the purchaser for the security, with interest from the date of purchase, less the amount of any income from such security that may have been received by the purchaser, and he shall have tendered to the seller the securities sold in proper form for transfer; and (2) the seller shall not have made such re-fuud and accepted such tender within the said fifteen (15) days.”

      . The pleading is drawn under Art. 581-5, subd. 0(1) which provides:
      “Sales of securities made by or in behalf of a vendor, whether by dealer or other agent, in the ordinary course of bona fide personal investment of the personal holdings of such vendor, or change in such investment, if such vendor is not engaged in the business of selling securities and the sale or sales are isolated transactions not made in the course of repeated and successive transactions of a like character; provided, that in no event shall such sales or offerings be exempt from the provisions of this Act when made or intended by the vendor or his agent, for the benefit, either directly or indirectly, of any company or corporation except the individual vendor (other than a usual commission to said agent), and provided further, that any person acting as agent for said vendor shall be registered pursuant to this Act; * *

      . Art. 581-37.


author: MASSEY, Chief Justice.

text:
    C. I. FITTS, Appellant, v. Robert S. CALVERT, Comptroller of Public Accounts of the State of Texas, et al., Appellees.
    No. 16506.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 20, 1963.
    Rehearing Denied Jan. 17,1964.
    Maurice Amidei, Fort Worth, for appellant.
    Waggoner Carr, Atty. Gen., of Texas; H. Grady Chandler and W. E. Allen, Asst. Attys. Gen., Austin, for appellees, Robert S. Calvert, Comptroller, N. A. Ferguson and Gerald A. Rickett.
    Cantey, Hanger, Gooch, Cravens & Scarborough, and William B. David, Fort Worth, for appellee, Loy R. Wattenbarger.
   MASSEY, Chief Justice.

This is a plea of privilege case. C. I. Fitts is the plaintiff in a suit for declaratory judgment filed in Tarrant County. Robert S. Calvert, Comptroller of Public Accounts of the State of Texas, was made a party defendant to said suit, along with two of said Comptroller’s agents, Rickett and Ferguson. Also joined by Fitts as party defendant to his suit was Loy R. Wattenbarger, d/b/a M & W Oil Company, a resident of Tarrant County. A plea of privilege was filed in behalf of the Comptroller and his two agents, in which it was pointed out that the suit was, in fact, against said defendants in their official capacities rather than in any individual capacity and hence amounted to a suit against the State of Texas for which no authorization had been made by the Legislature. The prayer of the plea of privilege was for a transfer of the case to Travis County, Texas.

Fitts filed his controverting affidavit and a hearing was held. Trial was before the court without intervention of a jury, and the court’s decree directed transfer of the suit to Travis County, Texas, in so far as the same obtained against Robert S. Calvert, Comptroller, and the two agents, Rickett and Ferguson, — leaving pending for trial in Tarrant County only the cause of action alleged against Loy R. Watten-barger. Fitts appealed.

Judgment affirmed.

Vernon’s Ann.Tex.Civ.St. Title 122A, “Taxation-General”, Ch. 9, “Motor Fuel (Gasoline) Tax”, Art. 9.02, “Rate of Tax; * * * ”, provides for the levy and imposition of certain taxes. Art. 9.04, “Penalties”, in part provides that all taxes collected by a “distributor”, etc. under authority of provisions of the Chapter, shall be for the benefit of, and paid to, the State of Texas. Art. 9.08, “Lien”, provides that the State' shall have a lien upon all the property of any “distributor” (defined by the Act), devoted to or used in his business as such, as security for the payment of all taxes, penalties, interest and costs owed the State, —and all taxes collected by him and required to be paid to the State.

The State of Texas, through its Comptroller, contends that Mr. Fitts was acting in the capacity of “distributor”, within the contemplation of the Act, during the calendar years of 1961 and 1962; — and that because thereof and on account of acts done and performed pursuant to prosecution of his business he owes taxes in the amount of $3,362.35. Fitts obviously denies that he is liable for taxes. As against the Comptroller and his agents a finding to this effect is the objective of Fitts’ suit for declaratory judgment.

During the time Mr. Fitts was doing business in 1961 and 1962 he was the owner of an International truck-tractor, with a gasoline tank trailer. When he ceased to do business in 1962, he sold the truck-tractor and tank trailer to Loy Wattenbarger. Wattenbarger, though having paid Fitts $4,-200.00 for the property, was confronted with a refusal on the part of the Highway Department to transfer title thereof to him because a lien in favor of the State had been filed, charged and assessed against the truck and trailer pursuant to provisions of the Act. Wattenbarger, therefore, sought Fitts’ agreement to rescind the contract of sale and purchase of the truck and trailer. Fitts refused to agree. He insisted that the difficulty was wrongfully caused and occasioned by the State Comptroller, through attempt by him to collect taxes and penalties which were not owed, and by registering the lien against the truck and trailer purportedly supported thereby.

Understandably Fitts decided to take his. troubles to the courthouse. He desired to retain Wattenbarger’s $4,200.00 • and he wanted to avoid paying the taxes and penalty sought to be imposed. Tarrant County was selected by him as the forum in which he brought his suit for declaratory judgment.

The State Comptroller has not filed any suit against Fitts in connection with his attempt to collect the taxes and penalties claimed to be owing, but has been contént to register the statutory lien on the truck and trailer. Because of this lien there was a question as to whether Fitts was able to and did convey good title thereto to Watten-barger. Resolution of that question is obviously contingent. Such depends upon satisfactory disposition of the State’s claim for taxes and penalties through payment or settlement of the claim, — or through a defeat of the claim pursuant to litigation. None of such, however, would require Wat-tenbarger’s presence'in the prosecution of Fitts’ declaratory proceeding against the Comptroller.

We are presently concerned with the right of the State Comptroller, and his two agents, to be sued in Travis County. By Fitts’ suit as against these is only asked that his tax liability be determined. By Fitts’ suit against Wattenbarger is asked an adjudication of his rights, duties, responsibilities and legal relations in regard to the contract of sale and purchase. In the one case the question to be resolved is Fitts’ tax liability; in the other the question is whether Fitts has completely performed, according to his contract of sale and purchase with Wattenbarger, inhibiting the latter’s right to rescind the contract in toto or to sue for damages on the theory of breach of contract.

Premise of Fitts’ contention in his controverting affidavit to the pleas of privilege of the Comptroller and his agents is that venue lies in Tarrant County, where his suit was filed, under V.A.T.S. Art. 1995, “Venue, general rule”, subsection 4, “Defendants in different counties”. Thereunder it is provided that “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.” Under said subdivision a nonresident defendant, sued upon the same cause of action along with another defendant who does reside in the county in which the suit is filed, may be sued in the county of the latter’s residence. However, in order to retain jurisdiction against the nonresident defendant (over his protest) within the provisions of the subdivision a plaintiff must allege a cause of action which is joint, and introduce proof which shows that the subject cause of action actually exists against the resident defendant, — or, if the causes are not joint but only related, he must “show” that the causes of action are so closely or intimately connected that it is necessary that they be tried together in order that a multiplicity of suits be avoided. The mere demonstration that the outcome of a cause of action against one defendant is necessarily contingent upon the ultimate result of another and different cause of action against another defendant is not such a “showing”.

The rule is succinctly stated in the case of Kasishke v. Ekern, 1954 (Tex.Civ.App., Amarillo), 278 S.W.2d 274, at pages 276 and 277, viz: “In construing the provisions of Exception 4 of Article 1995, it is well established that to maintain suit against a nonresident defendant, plaintiff must allege a joint cause of action against the resident and the nonresident defendants, and must introduce competent evidence sufficient to prove a cause of action against the resident defendant, under the allegations relied upon. Tunstill v. Scott, Tex.Civ.App., 120 S.W.2d 274; Dearing v. Morgan, Tex.Civ.App., 120 S.W.2d 555; Eppenauer v. Schrup, Tex.Civ.App., 121 S.W.2d 473; Lanham v. Lanham, Tex.Civ.App., 175 S.W.2d 286. It is true that cases growing out of the same transaction which are closely connected together may be joined together to avoid a multiplicity of suits, but appellee has failed to bring his alleged cause of action within such a rule in this case. * * Neither can venue be maintained against a nonresident defendant over his protests in the county of a resident defendant unless the nature of the alleged cause of action is joined together with or is the same against both defendants so as to make them both liable jointly and severally, or at least make them both necessary parties in order to recover against either.” Upon causes of action closely connected and therefore joinable, see: McDonald, Texas Civil Practice, pp. 337-343, sec. 4.10; Atlas Roofing Co. v. Hall, 1952, 150 Tex. 611, 245 S.W.2d 477; Shaver v. Hughes, 1948 (Tex.Civ.App., Fort Worth), 214 S.W.2d 176; Pearson v. Guardian Trust Co., 1935 (Tex.Civ.App., Galveston), 84 S.W.2d 256; Cobb v. Barber, 1898, 92 Tex. 309, 47 S.W. 963 ; 37A Tex.Dig., Venue, d and 22 (3) b; 43-B Tex.Jur., pp. 206-218, “Venue”, secs. 56-61; Clark, Venue in Civil Actions, p. 34, sec. 5.

In the instant case the trial court was of the opinion that the cause of action alleged by Fitts as against Wattenbarger was not joint with or the same as the cause of action alleged against the Comptroller and his'agents, and that the two causes of action were not so closely connected as to require retention of venue in order to avoid a multiplicity of suits. In view thereof the court sustained the pleas of privilege and ordered the suit transferred to' Travis County except as same existed against Wat-tenbarger. We are of the opinion the trial court was correct under the authorities cited above.

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

There was no error in the order of the trial court which left pending for trial in Tarrant County Fitts’ suit against Watten-barger. What is important is that the cause retained, and pending for trial in Tarrant County, was not one which was joint with the cause transferred, but rather was sever-able, or joint and several, and therefore one which was properly retained for disposition in the county where the suit was originally filed. See Tunstill v. Scott, 1942, 138 Tex. 425, 160 S.W.2d 65; International Harvester Company v. Stedman, 1959, 159 Tex. 593, 324 S.W.2d 543.

Fitts has numerous points of error in his brief, as to some of which what we have stated above is not determinative. We are of the belief that lengthening this opinion in further discussion would not be warranted. Most of these points are not such as -would require a reversal of the judgment of the trial court even if sustained. Nevertheless, we have severally examined the points presented and severally overrule them.

Judgment affirmed.


author: POPE, Justice.

text:
    WALKER BARNEBEY COMPANY, Appellant, v. M. H. SCHMIDT et ux., Appellees.
    No. 14154.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1963.
    Rehearing Denied Jan. 8, 1964.

      Bobbitt, Brite, Bobbitt & Allen, San Antonio, for appellant.
    Morriss, Morriss, Boatwright & Lewis, San Antonio, for appellees.
   POPE, Justice.

Walker Barnebey Company sued M. H. Schmidt and wife, Louise Schmidt, for damages for breach of an exclusive real estate listing contract, and the trial court sustained defendants’ motion for summary judgment because the realty was defectively described in the listing agreement. The question is whether the defendants, as movants, demonstrated that there is no fact issue as a matter of law. In our opinion, they did not and the cause must be remanded.

' The rule requiring an adequate description under the Real' Estate Dealers License Act, Article 6573a, § 22, Vernon’s Ann.Civ.Stats., is the same as that governing the construction of the Statute of Frauds, Article 3995, Vernon’s Ann.Civ. Stats. Tidwell v. Cheshier, 153 Tex. 194, 265 S.W.2d 568. It is that “the writing must ‘ furnish within itself, or by reference * to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty.” Broaddus v. Grout, 152 Tex. 398, 258 S.W.2d 308, 309; Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222, 224; Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152; 5 Lange, Texas Land Title, § 762.

Defendants signed an exclusive listing agreement which contained three elements of description: (1) The date line stated that the contract was signed in “San Antonio, Texas, March 23 ’61.” (2) It stated that the signatories are “the undersigned- owners.” (3) It described the land as “Rt. 11 Bx 98 2nd house on S-side of Rowley Rd W of Babcock Rd.”

Plaintiff met defendants’ motion for summary judgment by showing that it had asked defendants certain interrogatories and that defendants had answered them. These showed that during the period of the exclusive listing agreement, defendants had rented realty to third persons and after the period had expired they sold the property to the third persons. The showing upon the hearing was that this property, so sold, was enclosed by a fence and that it was owned by the defendants at the time of the listing agreement. This showing of ownership in fact, together with the three elements contained in the description itself, prevents us from holding that, as a matter of law, all fact issues are excluded by the hearing on the motion for summary judgment.

A court may infer the county of the property from the fact that the date line indicated it was executed in San Antonio, Texas. In Morrison v. Dailey, Tex., 6 S.W. 426, the description did not mention the county, but it did have a date line, “Lancaster, June 28, 1887.” That, together with other factors, was adequate to fix the location in a county. In Easterling v. Simmons, Tex.Civ.App., 293 S.W. 690, the county was inferred from the caption of a deed which ■stated, “The State of Texas, County of Freestone,” together with the fact that the ■deed was acknowledged and recorded in Freestone County. Brooks v. Temple Lumber Co., Tex.Civ.App., 105 S.W.2d 386, fixed the county of the property from the caption in the deed only. In Langham v. Gray, Tex.Civ.App., 227 S.W. 741, 745, the Court said:

“On the fact that the date line of this deed shows that it was executed at Beaumont, Tex., and the deed begins '‘State of Texas, County of Jefferson,’ and recites that both the grantor and grantee are citizens of Jefferson County, Tex., the presumption follows that this land is located in Jefferson County, Tex.”

Accord, Goggans v. Green, Tex.Civ.App., 165 S.W.2d 928; Moore v. Unknown Heirs of Gilchrist, Tex.Civ.App., 273 S.W. 308, 310; Frazier v. Lambert, 53 Tex.Civ.App. 506, 115 S.W. 1174.

Broaddus v. Grout, 152 Tex. 398, 258 S.W.2d 308, did not permit such an inference, as it should not; for the cite of the property was in Hardin County, whereas the .date line was Jefferson County. Defendants rely upon Wiseman v. Zorn, Tex.Civ.App., 309 S.W.2d 253, but in that case the .contract had no date line, nor anything else which fixed the city or county of the property. Friedlander v. Christianson, Tex.Civ.App., 320 S.W.2d 404, is not applicable either, because, after giving effect to the date line, the Court held the description was nevertheless defective for an entirely different reason. The party who signed the contract owned other property at the same location, and the description did not identify which property or how much was covered by the contract. See Phillips v. Burns, 151 Tex. 614, 252 S.W.2d 927. The limited record before us does not present that problem.

The recital of ownership in the listing agreement is also important. The contract in question mentions those who signed it as “the undersigned owners.” Such a recital, together with some other element of identification, may single out the land with reasonable certainty. Broaddus v. Grout, supra; Phillips v. Burns, supra; Wilson v. Fisher, supra. When there is a recital of ownership and the public récords show that the party charged owns a tract and only one tract which answers the description in the memorandum, the description is adequate. Pickett v. Bishop, supra; 5 Lange, Texas Land Titles, § 771; Musselwhite, 8 S.W. Law Journal, 193, 205.

The remaining factor is the description which locates a house on the south side of Rowley Road, West of Babcock Road. “House” is enough to include the land along with the structure. Cassiano v. Ursuline Academy, 64 Tex. 673, 675; Rowson v. Rowson, Tex.Civ.App., 268 S.W.2d 708, 714. Upon the trial of the case, it may be that the description leads to confusion as to the amount of land, or that it fails to lead unerringly to an identifiable tract. Upon the basis of the record before us, however, the showing of defendants’ ownership of a house and land on the south side of Rowley Road, west of Babcock Road in Bexar County, shows the presence of fact issues in the case. The judgment is reversed and the cause remanded.


author: NORTHCUTT, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Joe G. MARMOLEJO, Appellee.
    No. 7297.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 25, 1963.
    Rehearing Denied Dee. 23,1963.
    Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Shaver, Hurley & Sowder, Lubbock, for appellee.
   NORTHCUTT, Justice.

This is a workman’s compensation case in which the jury found appellee totally incapacitated for a period of eighty weeks and temporarily incapacitated for a period of one hundred weeks. Appellee alleged that on March 21, 1960, while employed by Conner Construction Company and in the course of his employment for said company in unloading steel pipe a heavy joint of pipe suddenly swung around and struck the ap-pellee on the left leg with such force that both leg bones were broken just above the ankle. He then alleged these injuries extended to and affected other portions of his body setting out the many effects and suffering and that the injuries were such that he was totally disabled. Appellee did not seek compensation for any specific injury but sought to recover upon his being totally and permanently disabled by reason of an extension of the effects of his injuries into his body generally.

It is undisputed that appellee was injured while in the course of his employment and it is admitted that appellant paid appellee as compensation herein $35 per week for a period of sixty-nine weeks, a total of $2,415. Appellant pleaded appellee’s disability, if any, wholly terminated at the expiration of the sixty-nine weeks and that such disability that appellee ever had was temporary and partial and caused solely by temporary partial disability and incapacity to appellee’s left foot and was confined to the left foot and did not extend to or affect any other portion of his body.

The case was submitted to a jury upon thirty-one special issues. We will refer only to the issues here in question. The first issue submitted to the jury was as follows: “Do you find from a preponderance of the evidence that the injury to plaintiff’s foot on March 21, 1960, extended to or affected parts of the body other than the foot, thereby causing incapacity?” The jury answered “Yes.”

Appellant presented three objections to the submission of Special Issue One and all three were overruled by the trial court. The three objections were as follows:

“Defendant objects to the submission of Special Issue No. 1, in the Court’s Charge, and more specifically objects to that portion of Special Issue No. 1, which inquires whether the injury to plaintiff’s foot extended to or affected parts of the body, because under the law said issue should read ‘extended to and affected’ and therefore is improper and prejudicial to this defendant.”
“Defendant further objects to Special Issue No. 1 because the same is too general, and if answered in the affirmative would not make liability upon this defendant for any general injury, because an affirmative answer to the same could mean that the injury extended to the leg, or the foot, or other parts of the body and defendant would not know what his liability was based upon. Defendant further objects to Special Issue No. 1 because the same is not an ultimate issue.”
“Defendant further objects to Special Issue No. 1, because an affirmative answer to the same would not be sufficient to hold defendant liable for a general injury, and if answered ‘Yes’, would not establish an ultimate fact upon which a judgment could be based.”

The first three points of error presented here complain of the overruling of those objections. Since all three of these points of error are germane to the same matter and were presented together, we will determine them together.

Appellee presented his case upon the theory that the injury to his left foot extended to and affected other portions of his body which resulted in total and permanent incapacity and disability. Appellant’s first objection is that in submitting whether the injury extended to or affected parts of the body was error because it should have been extended to and affected as required under the law. (Emphases ours.) In the case of Lumbermen’s Mut. Casualty Co. v. Zinn, 220 S.W.2d 906, the issue was submitted “or” instead of “and”. That issue was approved in the Zinn case and a writ was refused by the Supreme Court. We overrule appellant’s first point of error.

Under appellant’s second assignment of error it is contended Issue One is too general because an affirmative answer could mean the injury extended to the leg or other parts of the body and the appellant would not know what his liability was based upon. As we see this issue, it is not whether the injury affected an arm or the back or any specific part of the body but whether the injury affected any portion of the body so as to cause incapacity. If the injury caused incapacity, it is immaterial what portion of the body was affected. The Supreme Court in the case of Denbow v. Standard Acc. Ins. Co., 143 Tex. 455, 186 S.W.2d 236, suggested a very simple manner of presenting such an issue. That suggestion was as follows: “Did the injury, if any, to Denbow’s left wrist affect parts of his body other than his hand and wrist, thereby causing disability?” It is said in the case of General Accident Fire & Life Assur. Corp. v. Murphy, Tex.Civ.App., 339 S.W.2d 392 (NRE) as follows:

“Of course, if the injury and its effects are limited to a specific member, compensation is limited to that prescribed for loss' of br injury to the specific member. If, however, the injury to the specific member extends to the body generally, or perhaps it is more accurate to state, if the effects of the injury extend to other parts of the bo'dy and cause disability, compensation is recoverable for the disability thus caused to the other part of the body affected. Meyer v. Great American Indemnity Co., 154 Tex. 408, 279 S.W.2d 575; Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W.2d 463.”

Appellant’s second point of error is overruled.

Appellant’s third point of error contends that Special Issue No. One does not establish an ultimate fact. As to appellee’s cause of action, the ultimate fact is whether the injury affected other parts of his body as to cause incapacity. The jury found the injury affected other parts of ap-pellee’s body than the foot thereby causing incapacity. Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312 (Supreme Court) it is stated :

“The trial court properly refused to submit the requested issue. One of the controlling, issues made by the pleadings and proof was whether the injury was general or specific. Compensation for a specific injury is provided ip, .Section 12 of the. compensation law, Vernon’s Ann.Civ.St. art. 8306,. but if the . injury affects other portions . of the,. -body and;causes incapacity, compensa-.. tion.is recoverable and may exceed the amount provided for in Section 12; for in such case the injury is general and not confined to the specific member .as provided .in. Section 12. Consolidated Underwriters v. Langley, [141 Tex. 78] 170 S.W.2d 463. The requested issue does not embrace an ultimate fact material to the company’s defense. If, as the jury found, the specific injury affected the'body generally and incapacity resulted therefrom, it is immaterial whether or not such effect is the ‘usual and recognized results .accompanying^ and following the particular injury.’ Neither was it error for the trial court to overrule the insurance company’s request to prepare and submit an issue embracing all component parts of the ultimate issue suggested in the requested charge. The trial court submitted to the jury all of the. defenses raised by the pleadings and proof; therefore the insurance company has no right to complain.”

Appellant’s point of error three is overruled.

Appellee sought to determine his wage-rate under Subdivision 3, Section 1, of Article 8309. If his wage rate did not come under either Subdivisions 1 or 2 under Section 1 of Article 8309, then he could resort to Subsection 3. There is no question raised as to Subsection 1. Special Issue No. 28 of the court’s charge inquired of the jury if there was another employee of' the same class as the appellee working ,at least 210 days of the year immediately preceding appellee’s injury in the same or similar employment in the same or neighboring place. The jury answered “There was not another employee.” Special Issue No. 29 asked the jury what .amount of money, if .any, to be just and fair to both parties-to. be fixed as the average weekly wage of appellee. The jury answered $75.

Appellant objected to the submission of Special Issues Nos. 28 and 29 and by points of error 4 and 5 'contend appellee had not met his burden of proof in showing that there was not another employee of the same class as the appellee working at least 210' days immediately preceding appellee’s injury and was not entitled to recover under Subdivision 3.

Appellee testified as follows:

“Q All right. Joe, back' on — referring your attention back to the date of your injury, March 21,. 1960, had you worked for Conner Construction Company in the year just preceding that injury for as much as 210 days?
“A No, sir.
“Q Had you worked in any similar employment in that year, in the year previous to your injury, for as much as 210 days? And by that, I mean labor for a pipeline company or something in the nature?
'"A After I got my injury?
“Q No, before your injury. In the year just preceding your injury, had you either worked for Conner Construction Company or in similar employment for at least 210 days of that year?
'“A No, sir.
“Q All right. Have you tried to determine whether or not there are other employees in Lubbock or in a neighboring place who have worked, either for Conner Construction Company or in similar employment, for as much as 210 days in the year just preceding your injury ?
“A No, sir.
“Q Now the question is, have you tried to find any employees who have done that?
“A Yes, sir.
■“Q Have you been able to find any employees who have worked in that — either in the employment for Conner Construction Company or similar employment, for as much as 210 days in the year just preceding your injury?
“A No, sir, I haven’t found—
“Q Do you know of anyone who has worked either for Conner Construction Company or in similar employment in Lubbock or in a neighboring place, for as much as 210 days in the year preceding your injury?
“A No, sir.”

This is the testimony upon which appellant was to rely to bring himself under Subdivision 3.

We are familiar with the rule that the burden is upon appellee to show by competent evidence that his average weekly wage cannot be computed under Subdivision 3 until he shows Subdivisions 1 and 2 do not apply. Texas Employers’ Ins. Ass’n v. Ford, 153 Tex. 470, 271 S.W.2d 397 (Supreme Court). We believe, however, such matter has been liberally construed and that there was sufficient evidence to permit appellee’s recovery under Subdivision 3. In the case of Commercial Standard Insurance Company v. Villa, Tex.Civ.App., 313 S.W.2d 627 (writ refused NRE) under facts similar to the facts here, the court there held there was sufficient evidence to uphold the finding of the jury as was found in this case. To the same effect are the cases of I.C.T. Insurance Company v. Wineman, Tex.Civ.App., 308 S.W.2d 549 (NRE); Federal Underwriters Exchange v. Stewart, Tex.Civ.App., 109 S.W.2d 1031 (writ dismissed); and Traders & General Ins. Co. v. Crouch, Tex.Civ.App., 113 S.W.2d 650 (writ dismissed). Appellant’s points 4. and 5 are overruled.

By appellant’s points of error 6, 7, and 8 it is contended the trial court erred in refusing to submit to the jury its requested special issues. The substance of the issues requested were if the incapacity was caused solely by the loss of the use of the left leg below the knee; if incapacity was caused solely by loss of the left leg and if the injury was confined to his left leg below the knee. Appellant pleaded that such disability as appellee ever had was temporary and partial and caused solely by temporary partial disability and incapacity to ap-pellee’s left foot. Special Issue No. 31 submitted by the court to the jury placing the burden of proof upon appellee was as follows: “Do you find from a preponderance’ of the evidence that the injury of Joe Mar-molejo was not confined to his left foot?” The jury answered “It was not confined to his left foot.” The first issue correctly placed the burden of proof upon appellee to show that the injury to his foot extended to or affected parts of his body other than his foot thereby causing his incapacity. The appellant also pleaded appellee’s injury, if any, was confined to the left foot and did not extend to or affect any portion of his body. The trial court also submitted to the jury the question as to permanent and partial disability and as to the length of time each existed. We are of the opinion the. trial court substantially covered the requested special issues and did not err in refusing to give the requested special issues. Requested special issues which are substantially covered in the issues submitted by the court need not be submitted. Parker v. Leach, Tex.Civ.App., 274 S.W.2d 721 (NRE); Funderburk v. Dofflemyer, Tex.Civ.App., 234 S.W.2d 889 (writ refused). Appellant’s points of error 6, 7, and 8 are overruled.

By appellant’s ninth and last assignment of error it is contended the following argument made by appellee’s attorney constitutes reversible error. The closing argument complained of was as follows:

“I not only feel a sense of responsibility to Joe, but I feel one to his family. I feel like this will affect the entire family, if you, as jurors, the decision you render here today will have an eternal effect upon their lives. It certainly has an effect upon whether or not Joe is going to be able to continue to feed and clothe that family. It has an effect upon whether or not he is going to be able to keep that house.”

Part of this argument was based upon some evidence while other portions appeal to the sympathy of the jury. We cannot reasonably say that this argument calculated to cause and probably did cause rendition of an improper judgment in the case. It is stated in the case of Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (Supreme Court) as follows:

“Before a judgment is reversed because of argument of counsel two things must appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.”

Finding no reversible error, the judgment of the trial court is affirmed.


text:
    J. B. MARION et al., Appellants, v. Horace HUTTON et al., Appellees.
    No. 7312.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 16, 1963.
    Rehearing Denied Jan. 13,1964.

      Edward W. Napier, Lubbock, for appellants.
    Nelson, McCleskey & Harriger, Lubbock, •for appellees.
   CHAPMAN, Justice.

This is another of a myriad of cases that have been appealed to us and, according to ,a statement of appellants’ attorney made in oral argument are in the process of being appealed to us, from judgments based upon jury verdicts rendered against J. B. Marion d/b/a J. B. Marion & Company upon breaches of written contracts to purchase at designated prices cotton grown by farmers in 1961. The plaintiffs-appellees here are Horace Hutton and others. In this case judgment was taken against J. B. Marion and Jack Marion, jointly and severally, and both have appealed.

The first three points raise the question of whether there was any probative evidence to substantiate appellees’ compliance with the conditions of the contract, precedent to a recovery for breach thereof. The specific question raised is that there was not any probative evidence that the cotton was ginned either through Moss Cleaners or Continental Cleaners, one of the requirements in the written contract.

The grower of the cotton, Horace Hutton, testified:

“Q All right. Did all of these gins use either Continental or Moss Lint Cleaners ?
“A They did, definitely did. At least, they told me they had them in there, I didn’t go in all those gins to see if they did but they said they had them in there. They were all good gins.”

There were no objections whatever made to the testimony and no cross-examination of the witness on the subject. Appellants contend the testimony alone of a party to the suit does no more than raise a fact issue and that the testimony being hearsay was insufficient upon which to support a verdict and judgment.

These are general rules of law but both have well-known exceptions. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904; Springfield Fire & Marine Ins. Co. v. Wm. Cameron & Co., 96 S.W.2d 788 (N.W.H.); and McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 support the exceptions to the general rule first stated. In the last cited case the Supreme Court held: “Where the testimony of an interested witness is uncontradicted, is clear and positive, and there are no circumstances in evidence tending to discredit or impeach such testimony, conclusive effect may be given thereto.” We believe the testimony here sufficiently conforms to the exceptions to the general rule.

In answer to the question concerning the lint, cleaners in the gins used, the witness said: “They did, definitely did.” The remainder of the answer indicates hearsay, and that brings us to the question of the probative quality of that testimony. As stated above, there are also exceptions to the hearsay rule.

This was testimony that unquestionably could have been easily refuted had it not been true, but appellants did not even object to the hearsay statement.

Where the gin manager of a cotton company testified that certain bales of cotton were completely destroyed in Greenville, Texas, when it appeared he was not even in Greenville on the date of the fire and the testimony was objected to as hearsay, our Supreme Court in Missouri Pac. Ry. Co. v. Sherwood, 84 Tex. 125, 19 S.W. 455, 17 L.R.A. 643, said: “The cross-examiner did not sufficiently probe the sources of the witness’ knowledge to justify us in holding that it was founded entirely on hearsay, rendering his testimony inadmissible.” The witness being a farmer in the community could, for example, very well have seen the Moss or Continental Cleaners being installed, unloaded, or observed advertising on the gins giving the name of-the'lint cleaners used.

It has been stated textually, that failure to make proper objection to evidence which is inadmissible because in violation of one of the exclusionary rules may be relied upon to the extent of its probative value and may support a finding of fact or verdict. Texas Law of Evidence, McCormick & Ray, Volume 1, Second Edition, Section 31, Page 32. Appellants no where in the record contend that the lint cleaners'were not in the gins but obviously attempted to "lay behind a log” in the hope that the testimony offered in that connection would be held by the courts to be insufficient.

We therefore hold that this testimony, under the record made in.this case, established as a matter of law that the cotton was ginned at a gin using either Moss or Continental Cleaners. In. any event, it was sufficient to raise a fact issue upon which the court could have made an implied finding. The trial court obviously considered, in the absence of an objection, that the fact was proved as a matter of law, since he did not submit an issue on the question. Even if he should have his failure to do so is not raised on motion for new trial. “A ground of error not distinctly set forth in the motion for new trial, in cases where á motion for new trial is required shall be considered as waived.” Rule 374, Vernon’s Ann. Texas Rules of Civil Procedure; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887. In this appeal, the judgment, having been based upon a jury verdict, the question should have been raised in the motion for new trial as a prerequisite to raising it. ,on appeal. Rule 324 V.A.T.R.

The next point urged is that the trial court erred in rendering judgment against Jack Marion. The record shows a stipulation .that “ * * * for the purposes of this law suit and the issues involved * * * ” J. B. Marion & Co. include Jack Marion and J. B. Marion. The testimony shows J. B. Marion & Co. breached the contract sued upon, so we believe the point is- without merit.

Accordingly, the judgment of the trial court is in all things affirmed.