author: SHARPE, Justice.

text:
    H. T. NOLEN, Appellant, v. RIG-TIME, INC., Appellee.
    No. 93.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 20, 1965.
    First Rehearing Denied June 29, 1965.
    Second Rehearing Denied July 29, 1965.

      James R. Sorrell, Jr., of Sorrell, Anderson, Porter & Stone, Corpus Christi, for appellant.
    Robert C. Wolter, of Wood & Boykin, Corpus Christi, for appellee.
   SHARPE, Justice.

This is an appeal from a judgment rendered in a non-jury trial in favor of Rig-Time, Inc., appellee, plaintiff below, against H. T. Nolen, appellant, defendant below, in the amount of $2,803.52, representing $2,~ 166.00 for the principal claim, $137.52 for interest to date of judgment, and $500.00 for attorney’s fees.

Appellee’s claim was based upon a sworn account and invoices to “Nolen & Campbell, e/o H. T. Nolen, P. O. Box 842, Corpus Christi, Texas” for diamond coring and core analysis service on two wells located in Caddo Parish, Louisiana, known as Pen-der No. 1 Well, against which there was a claim for $952.00, and Shaffer No. 2 Well, against which there was a claim for $1,-214.00. Appellee alleged, among other things, that H. T. Nolen and R. C. Campbell were partners in an oil and gas venture during the period of time that such indebtedness was incurred at the special instance and request of R. C. Campbell.

Appellant urges ten points of error in substance as follows: (1) the evidence is insufiScient to establish a mining partnership between Campbell and Nolen, (2) there is no evidence of such mining partnership, (3) the trial court should have sustained appellant’s objection to certain testimony of H. T. Nolen to the effect that he had arranged credit with Halliburton and National Supply Company, (4) the trial court erred in admitting the testimony of ap-pellee’s witness Trainer to the effect that he had flown to Corpus Christi to see appellant about an account due him, (5) there was no evidence that Campbell was the agent of Nolen, (6) the evidence was insufficient to show such agency, (7) there was no evidence to show that appellant had contracted for appellee’s services, (8) there was no evidence that appellant received the benefit of the goods, materials and services which appellee furnished, (9) the trial court erred in overruling appellant’s special exception to appellee’s allegations of attorney’s fees, and (10) the trial court erred in rendering judgment for attorney’s fees in favor of a non-resident claimant where the commercial dealings sued upon were requested in and were to be performed in the State of the claimant’s residence, which was other than the State of Texas.

The trial judge filed findings of fact and conclusions of law in substance as follows: (1) Campbell and Nolen were partners in an oil and gas venture in the operation and development of two wells in Louisiana, (2) such partnership was in existence when the services were contracted and performed by appellee on said wells and leases, (3) Campbell was also the agent of Nolen in contracting such services, (4) the reasonable value of appellee’s services was $2,-166.00, which Nolen, acting through Campbell as his partner or agent accepted and agreed to pay, (5) if there was no such partnership or agency, appellant accepted, benefitted and impliedly agreed to pay for the work and services of appellee, (6) after request, appellant refused to pay appellee who necessarily employed attorneys to bring suit to collect, (7) a reasonable fee for the services of appellee’s attorneys is $500.00, (8) appellant received a statement or notice of indebtedness by August 6, 1962, and (9) all other facts, not specifically mentioned are found in support of the judgment. By three conclusions of law the trial court held, in effect, that appellee was entitled to recover judgment for its claim, interest, and attorney’s fees as hereinbefore mentioned, together with costs of suit.

The evidence herein is sufficient to support liability against appellee either on the theory of a mining partnership, an ordinary partnership, or because of Campbell’s agency for Nolen. The finding of the trial court that Nolen and Campbell were partners was broad enough to include either a mining partnership or an ordinary partnership. However, appellant has not here assigned or urged a point of error as to the existence of an ordinary partnership, and appellee expressly insists that it does not waive such failure on the part of appellant.

The rule is well settled that a mining partnership arises by operation of law where co-owners work a mine. Joint ownership without joint operation merely constitutes cotenancy; but to constitute a mining partnership, it is essential that there be an actual working of the mine by the partnership. Wagner Supply Co. v. Bateman, 118 Tex. 498, 18 S.W.2d 1052 (1929) ; Rucks v. Burch, 138 Tex. 79, 156 S.W.2d 975 (1941). The record herein reflects that Nolen shared joint control of the “Nolen and Campbell operating account” out of which bank account all expenses were paid; that Nolen arranged for credit for the actual drilling of wells and for operations; that he participated in decision concerning whether to continue drilling of one of the wells; and that he was at the site of one of the wells when appellee’s services were furnished. This is not a case where Nolen simply paid a specified price for an interest in a lease, but the record shows that he furnished money and credit and exercised judgment in connection with the venture. Neither the written agreement between Nolen and Campbell, nor the evidence established a several relationship between them. The evidence was sufficient to establish joint operation by Nolen and Campbell, as owners, so as to constitute a mining partnership.

Aside from the question of existence of a mining partnership, the evidence was sufficient to support the finding of the trial court that an ordinary business partnership existed between Nolen and Campbell. The legal relation between two persons where by agreement they have combined their property, labor or skill in an enterprise or business as principals for the purpose of joint profit is shown to exist. Freeman v. Huttig Sash & Door Co., 105 Tex. 560, 153 S.W. 122 (1913); Cavazos v. Cavazos, 339 S.W.2d 224, (Tex.Civ.App., 1960, wr. ref. n. r. e.) ; 44 Tex.Jur.2d, Partnership, § 17, p. 336. Appellant’s points 1 and 2 are overruled.

By his points 3 and 4, appellant contends that the trial court should have sustained his objections to testimony of H. T. Nolen to the effect that he had arranged credit with certain business concerns and his objections to testimony of appellee’s witness Trainer, to the effect that he had flown to Corpus Christi to see appellant about an account due him. Such testimony, in both instances, was admissible on the issue of partnership between Nolen and Campbell, and it tended to show that Nolen customarily made arrangements for credit in connection with the operations of Nolen and Campbell. Furthermore, the admission of such testimony, even if erroneous, is not shown to amount to such denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment; and such action is harmless in any event. Rule 434, Texas Rules of Civil Procedure. Appellant’s points 3 and 4 are overruled.

Aside from the questions of the existence of either a mining partnership or ordinary business partnership, the evidence is sufficient to support the finding of the trial court that Campbell was the agent for Nolen in contracting for the services performed by appellee. Appellant’s points 5 and 6 are overruled.

Appellant’s points 7 and 8 to the effect that there was no evidence to show that he had contracted for appellee’s services or that he received the benefits of the goods, materials and services furnished become immaterial in view of our holdings as to partnership and agency. The judgment need not rest on the findings that appellant impliedly promised to pay appellee or that he received the benefits of such services.

By his points 9 and 10, appellant contends that the trial court erred in overruling a special exception concerning attorney’s fees and in allowing recovery of same because such allowance is in the form of a penalty provision and cannot be granted to a nonresident plaintiff where the commercial dealings sued on were requested and performed in the State of Plaintiff’s residence, allegedly Louisiana. The record shows that appellee is a Delaware Corporation authorized to do business in the State of Texas; and that the services furnished by appellee were contracted for and rendered in the State of Louisiana. Appellant contends that such facts preclude appellee from recovery of attorney’s fees under Article 2226, Vernon’s Ann. Tex.Civ.St. In particular, appellant argues that the term “Any person” used in said Statute should be given a construction limited to persons that are residents of this State or that are parties to dealings within this State from which the claims they seek to enforce are connected; that said Statute is penal in nature and, therefore, must be strictly construed, resolving any doubt against the imposition of such penalty. The appellant is a resident of the. State of Texas and appellee has the same rights as a domestic corporation in connection with litigation. See Art. 8.02, Business Corporation Act and comment thereunder appearing in Vol. 3A, V.A.T.S. Art. 2226 does not provide, expressly or impliedly, that materials furnished or services rendered by a claimant must be contracted for or supplied within the State of Texas. The words “Any person” as used in said Statute include a corporation. Wyche v. Wichita Engineering Company, 374 S.W.2d 728 (Tex.Civ.App., 1964, n. w. h.). Appel-lee is within the class of persons referred to in said article and is entitled to recover reasonable attorney’s fees in addition to its primary claim. Appellant’s points 9 and 10 are overruled.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

Appellant’s motion for rehearing contains seventeen points of error and a request for additional findings of fact in connection with the following matters: (1) Our conclusion that an ordinary partnership existed between Nolen and Campbell, (2) our conclusion that Campbell was an agent for Nolen in contracting for the services performed by appellee, and (3) our conclusion that Nolen exercised judgment in connection with the venture.

In our original opinion we pointed out that appellant did not assign a point of error in this court concerning the existence of an ordinary partnership between Nolen and Campbell and that appellee expressly refused to waive such failure. By his point IV appellant now contends that since this case was tried without a jury it was not necessary to assign points of error. Such contention is not well taken. Neither the Supreme Court nor a Court of Civil Appeals is authorized to reverse a trial court’s judgment in the absence of a properly assigned error or one which can properly be classed as fundamental. Rule 418, Texas Rules of Civil Procedure; Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524, 529 (1958). In City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77, 85 (1955) the Supreme Court quoted with approval the opinion of the San Antonio Court of Civil Appeals in Kendall v. Johnson, 212 S.W.2d 232, 235, wherein it was said: “It is the purpose of an assignment of error to point out, segregate and identify the particular ruling or action of the court which it is contended constitutes reversible error and the effect of the segregation and identification is to waive all other complaints as to all other rulings and actions of the court, unless they are also assigned as error.” The case now before this court is an appeal from a trial on the merits by the court sitting without a jury. There is no question of fundamental error here. Appellant was required to assign a point of error and to brief the same in this court with reference to the actions of the trial court about which he desired to complain and seek relief.

Under such circumstances we are required to affirm the judgment of the trial court on the basis that it is supported by the findings and conclusions of the lower court to the effect that an ordinary partnership existed between Nolen and Campbell. Such partnership resulted from an express agreement entered into by them to combine their property, labor or skill, as principals, in an enterprise or business for the purpose of joint profit. Because of such ordinary partnership, liability attached against Nolen in connection with appellee’s cause of action asserted here; and, in view of this, it is not necessary to predicate Nolen’s liability on a mining partnership which arises by operation of law when co-owners work a mine, that is, where both joint ownership and joint operation are present. However, if there had been no such ordinary partnership, the evidence herein is sufficient to support the existence of a mining partnership, and the judgment, if necessary would be supported on such basis. Neither is it necessary to predicate affirmance of the judgment on the theory of Campbell’s agency for Nolen. However, if there had been neither an ordinary partnership or a mining partnership, the evidence herein is sufficient to support the finding of the trial court as to such agency, i. e. that Nolen authorized Campbell to represent him in business relations with other persons in connection with the operations here involved; so that, if necessary, liability would attach against Nolen on the theory of agency.

In view of appellant’s failure to assert a point of error in this court complaining of the judgment on the premise that it is not supported on the basis of an ordinary-partnership between Nolen and Campbell, we doubt that supplemental findings are required to be made by us under Rule 455, T.R.C.P. However, if such findings are required we believe it sufficient in connection with the matters referred to by appellant to adopt the findings and conclusions of the trial court, those made by us in the original opinion and those made in this opinion.

After consideration of Appellant’s motion for rehearing and each ground thereof, we adhere to our original disposition of the case and said motion is overruled.


source: Caselaw Access Project

author: DIXON, Chief Justice,

license: Public Domain

text:
    Johnny Preston WILLIAMS, Jr., et al., Appellants, v. Wilbur HILL, Appellee.
    No. 16628.
    Court of Civil Appeals of Texas. Dallas.
    June 25, 1965.
    Irwin Massman and Ronald R. Waldie, Dallas, for appellants.
    Bailey & Williams and G. David West-fall, Dallas, for appellee.
   DIXON, Chief Justice,

Appellee Wilbur Hill, defendant in the trial court, has filed a motion to dismiss this appeal as to two of the appellants, Johnny Preston Williams, Jr. and Richard Stanley Dickerson, plaintiffs in the trial court, on the ground that they failed to give notice of appeal. The parties will be designated here as they were in the trial court.

A supplemental transcript discloses that the two above named plaintiffs did give notice of appeal though the notice was given long after the ten days prescribed by Rule 353, Texas Rules of Civil Procedure. However, the tardiness of the notice is of no consequence in this case. The record shows that following the rendition of a summary judgment against them the two plaintiffs filed a motion for new trial which was overruled by operation of law. Under such circumstances notice of appeal is not necessary. Houston Life Ins. Co. v. Dabbs, 125 Tex. 100, 81 S.W.2d 42; Hernandez v. Baucum, Tex.Civ.App., 338 S.W.2d 481. Therefore appellee’s motion cannot be sustained on the ground stated.

However, the record reveals a jurisdictional defect which is fatal to the appeal of the two above named plaintiffs — a defect of which we are required to take notice regardless of whether appellee has filed a motion to dismiss. The cash deposit for costs in lieu of a bond was filed in behalf of the two plaintiffs long after the expiration of the thirty-day period provided in Rule 356, T.R.C.P.

Suit was filed June 12, 1964 by three plaintiffs, Johnny Preston Williams, Jr., Richard Stanley Dickerson and Franklin Dickerson.

On October 21, 1964 defendant Hill filed a motion for summary judgment as to two of the plaintiffs, Johnny Preston Williams, Jr. and Richard Stanley Dickerson.

On December 4, 1964 the trial judge held a hearing and on December 30, 1964 signed an order granting a summary judgment and severing the cause of action of Williams and Richard Stanley Dickerson from that of Franklin Dickerson.

On December 10, 1964 the two plaintiffs against whom summary judgment had been rendered filed a motion for new trial which was overruled by operation of law on February 14, 1965 — after the expiration of forty-five days from December 30, 1964. Angelina County v. McFarland, Tex., 374 S.W.2d 417, 421; Rule 329b 3, T.R.C.P.

On February 2, 1965 defendant Hill filed a motion for summary judgment against the third plaintiff, Franklin Dickerson, whose cause of action had been severed from that of the other two plaintiffs.

On February 26, 1965 a hearing was held and on March 16, 1965 the trial judge signed an order granting a summary judgment against plaintiff Franklin Dickerson.

It was not until April 14, 1965 that a cash deposit in lieu of a bond was filed in behalf of all three of the plaintiffs. This was in time under Rule 356, T.R.C.P. to perfect the appeal of Franklin Dickerson from the judgment against him dated March 16, 1965; but it was too late to perfect the appeal of Johnny Preston Williams, Jr. and Richard Stanley Dickerson from the summary judgment against them dated December 30, 1964. Thorpe v. Thorpe, Tex.Civ.App., 294 S.W.2d 724; Lucchese v. Specia, Tex.Civ.App., 281 S.W.2d 725.

Johnny Preston Williams, Jr. and Richard Stanley Dickerson contend that the summary judgment against them on December 30, 1964 was interlocutory in nature since it did not dispose of all parties to the suit, and did not become a final ap-pealable judgment until the summary judgment was rendered against the third plaintiff, Franklin Dickerson, on March 16, 1965.

With this contention we cannot agree. The cause of action of Johnny Preston Williams, Jr. and Richard Stanley Dickerson was severed from the cause of action of Franklin Dickerson on December 30, 1964, therefore the summary judgment rendered against them on that date became final and appealable on February 14, 1965 when their motion for new trial was overruled by operation of law. Kirkland v. Martin, Tex.Civ.App., 376 S.W.2d 819; Moore v. Mathis, Tex.Civ.App., 369 S.W.2d 450; Oaxaca v. Lowman, Tex.Civ.App., 297 S.W.2d 729; Rule 301, T.R.C.P. The failure to file the cash bond within thirty days of February 14, 1965, being jurisdictional in nature, requires a dismissal of their appeal.

The appeal of Franklin Dickerson remains pending in this court, but the appeal of Johnny Preston Williams, Jr. and Richard Stanley Dickerson is dismissed.


author: WILLIAMS, Justice.

text:
    SOUTHWEST SAVINGS ASSOCIATION, Appellant, v. Billy A. DUNAGAN et al., Appellees.
    No. 16595.
    Court of Civil Appeals of Texas. Dallas.
    June 11, 1965.
    Rehearing Denied July 9, 1965.

      DeBusk & DeBusk, and Kilgore & Kil-gore, James A. Kilgore, Dallas, for appellant.
    Lester L. May, Thomas D. Reagor, Goldberg, Gump, Strauss & Hauer, James L. Mitchell; Erhard, Cox & Ruebel, Robert C. Cox, Storey, Armstrong & Steger, Donald W. Jackson, Dallas, for appellees.
   WILLIAMS, Justice.

This appeal involves summary judgment proceedings in a suit brought by Southwest Savings Association against Billy A. Duna-gan and a number of other defendants to recover upon a written guaranty agreement. The trial court sustained motions by the several defendants, either for summary judgment or for dismissal, and overruled the motion for summary judgment by Southwest Savings Association. From a take-nothing judgment rendered in favor of all defendants plaintiff appeals.

Appellant’s assault upon the judgment is implimented by ten points of error, such points being of such a nature that an intelligent consideration thereof requires a recitation, in some detail, of the material antecedent facts.

FACTS

The essential facts recited herein are undisputed and are revealed by various depositions and exhibits attached thereto, together with responses to requests for admissions of fact.

Billy A. Dunagan originally conceived the idea of a country club to be established in the northern part of Dallas County. He broached the subject to H. Leslie Hill and from their initial talks a plan evolved to acquire a block of land in the neighborhood of Garland, a portion of which would be used for the country club and golf course and the remainder of which would be used by developing the same for residential and commercial use. Ed Drake, an attorney who had represented Dunagan’s advertising agency, was called upon to do the necessary legal work in connection with forming the legal entities to carry out the plans. Four separate legal entities were created.

1. The Buckingham Joint Venture was a voluntary association organized for the purpose of acquiring land. The affairs of the joint venture were to be managed by H. Leslie Hill and Billy A. Dunagan, as agents for the joint venturers under the terms of a joint venture agreement which expressly provided that Hill and Dunagan, as agents, would have the power to bind the assets of the joint venture by contract, but that they had no power to bind the assets of the members of the joint venture individually.

2. Roanoke Development Company, a business corporation, was formed to own and develop the properties which would not be used for the country club.

3. Buckingham Country Club was a nonprofit corporation organized to own the actual country club facilities.

4.The Buckingham Management Corporation was a business corporation organized for profit to manage the country club property and to supervise the construction and maintenance of the improvements placed upon the country club property.

All of the appellees held some type of membership in Buckingham Country Club. All of appellees, except C. C. Huffhines, were parties to the Buckingham Joint Venture agreement. Throughout the formative stages and through the acquisition of the properties, the affairs of the organizing group were held at informal meetings. Those participating in these meetings included Billy A. Dunagan, H. Leslie Hill, Ed Drake, C. W. Cassidy, Jr., Arthur White, DeWitt Ray, Jr., J. J. Freiberger, and J. W. Campbell. H. Leslie Hill was in charge of planning and carrying out the construction of the country club buildings. Billy Dunagan was in charge of publicity and the solicitation of membership.

Some time prior to the fall of 1960, H. Leslie Hill, as general contractor, commenced the erection of the country club building. Initial construction was financed in the name of Buckingham Management Corporation which used a portion of the initiation fees paid by members for that purpose. Finally it was decided by Buckingham Management Corporation to borrow $200,000 to complete improvements on the country club property.

There is evidence that other lending agencies were approached but finally Southwest Savings Association was brought into the picture by DeWitt Ray, Jr. and became interested in making the loan. Following negotiations by attorney Ed Drake, representing Buckingham Management Corporation, a letter dated October 14, 1960, addressed to Southwest Savings Association, was written by Ed Drake wherein he proposed that a loan of $200,000 be made to Buckingham Management Corporation, the note therefor to be endorsed by DeWitt Ray, Jr., C. W. Cassidy, Jr., H. Leslie Hill, J. J. Freiberger, Ed Drake and Billy Ai Dunagan. It is undisputed that Drake had authority from these parties to write the letter. On October 28,1960, following additional negotiations, Ed Drake addressed another letter to Mr. L. E. Guillot, President of Southwest Sayings Association, wherein it was proposed that a loan of $200,000 be made to Buckingham Management Corporation, to be secured by a deed of trust upon 217.0134 acres of land, and an agreement to give a lien upon additional lands totaling 182.64 acres then held under option. It was therein proposed that the loan was to be further secured by a collateral guaranty agreement to be signed by C. W. Cassidy, Jr. and others interested in the project, their guaranty liability being limited by the amount expressly stated in the agreement. The letter of October 28th was signed “Buckingham Management Corporation by Edward J. Drake, Secretary.” When asked in his deposition concerning the writing of the two letters above referred to and as to whether he had any authority to represent the individual guarantors in making the proposals, Ed Drake testified that he did not represent any of the individuals but only represented the joint venture and the management corporation. On October 31, 1960 Southwest Savings Association issued a loan commitment for a loan in the amount of $200,000 to be made to Buckingham Management Corporation. On November 25, 1960 Southwest Savings Association issued a letter of instructions addressed to Mr. Ed Layton of Texas Title & Abstract Company of Dallas directing the preparation of a note in the amount of $200,000 to be executed by Buckingham Management Corporation and payable to Southwest Savings Association. The instruction letter directed that Cliff Cassidy, Jr. and eleven others sign the note on the back indicating personal liability to the amount set opposite each name. On November 25, 1960 Ed Drake had prepared a guaranty agreement, a draft of which was submitted to Southwest Savings Association in connection with the application for the loan, and such agreement was circulated ■among' the various individuals listed thereon. The first paragraph of said guaranty agreement provided that:

“For valuable consideration and to induce you to loan money and extend credit in reliance hereon, we, the undersigned, guarantee in the amounts indicated, unconditionally, the payment, when due, of that certain promissory note in the principal amount of $200,000.00, dated the 29th day of November, 1960, repayable in ten (10) equal semi-annual installments plus interest, executed by Buckingham Management Corporation.”

The third paragraph of the agreement provides:

“This guaranty shall extend to and cover every extension or renewal of, and every obligation accepted in substitution for, any obligation guaranteed hereby, and we shall be bound hereby irrespective of the existence, value or condition of any collateral security you may at any time hold in the amounts and to the extent indicated after our respective names.”

The note recited in the guaranty agreement was never executed by Buckingham Management Corporation. Mr. Ed Layton, acting on behalf of Texas Title & Abstract Company, examined the record title to the land to be given as security in connection with the loan and rendered a title opinion on or about November 26, 1960. At some time between November 26 and December 1, 1960 Mr. Layton called Mr. Alan Lundahl, Vice-President of Southwest Savings Association and advised him that Buckingham Management Corporation did not have record title to the security to be given in connection with the loan, and advised Lun-dahl that it would be necessary to change the terms of the loan, and properly identify the borrower. Layton also gave this information to Ed Drake. Layton suggested that the note be executed by H. Leslie Hill and Billy A. Dunagan, agents for Buckingham Joint Venture, the legal entity which held record title to the land to be given as security. At the time Layton made this suggestion concerning change in the name of the borrower, Southwest Savings Association had in its possession a draft of the guaranty agreement and such agreement was then being circulated among the proposed guarantors. There is no evidence in the record that the various guarantors were advised of the change in the loan transaction prior to their execution of the guaranty agreement.

Mr. Layton was authorized by Southwest Savings Association and by Ed Drake, attorney for the Buckingham entities, to change the transaction so that the note and deed of trust would be executed by H. Leslie Hill and Billy A. Dunagan, agents for Buckingham Joint Venture project. On December 1, 1960 the closing of the loan was held in the offices of Texas Title & Abstract Company. Present at that time were Billy A. Dunagan, H. Leslie Hill, Ed Drake and Ed Layton. The note was then and there signed by Hill and Dunagan, as agents of the joint venture, as was the deed of trust. The guaranty agreement was not made a part of the papers at the closing session. Southwest Savings Association, upon receipt of the note and deed of trust executed by Hill and Dunagan, agents, placed $200,000 in escrow with Texas Title & Abstract Company to be paid out periodically as construction continued on the country club building.

One of the requirements of the title company was that the title company be furnished with a “showing as to the authorities and powers of H. Leslie Hill and Billy A. Dunagan as agents to sell, encumber or otherwise deal with captioned property * * *.” A ratification agreement, dated December 5, 1960, was circulated among the members of the joint venture, ratifying the power of Hill and Dunagan to act on behalf of the joint venture in making the loan hut expressly providing that the agents were empowered to execute the various security instruments binding the assets of the joint venture only, and not the joint ven-turers personally.

The record is silent as to when the various guarantors signed the guaranty agreement but when it was signed the same was forwarded directly to Southwest Savings Association.

Over a period of time the $200,000 placed in escrow with Texas Title & Abstract Company was paid out in connection with the construction of the country club facilities. Ultimately, the Buckingham Country Club went bankrupt and the Buckingham Joint Venture project defaulted in its obligation under the note in the amount of $200,000. After default, Southwest Savings Association foreclosed its deed of trust on the real property and bought the same for $40,000 at trustee’s sale, crediting the note therewith.

PLEADINGS

Southwest Savings Association brought this action naming C. W. Cassidy, Jr., J. J. Freiberger, DeWitt Ray, Jr., Billy A. Duna-gan, Jack E. Huffhines, C. C. Huffhines, Emory L. Huffhines, J. W. Campbell, Jr., Arthur White, Walter Hailey, Jr., James Vouras, Sr. and Pete J. Vouras, as defendants. Defendants DeWitt Ray, Jr. and Walter Hailey were dismissed at the request of plaintiff. Plaintiff sought judgment against the defendants for the amounts guaranteed by each one in the guaranty agreement dated November 28, 1960, and alleged alternatively that if the court should hold that the guaranty agreement did not properly apply to the note sued upon, the guaranty agreement should be reformed, based upon alleged mutual mistake, to properly cover the note executed by H. Leslie Hill and Billy A. Dunagan, Agents. The defendants answered with a general denial, and various special defenses including express denial that the guaranty agreement had any application to the note executed by Hill and Dunagan as agents; that the guaranty agreement was conditionally delivered ; that the condition giving the guaranty agreement efficacy never occurred; a plea of the statute of frauds; a plea of es-toppel; assertions of the parol evidence rule; a plea of ratification; and an express denial of any mutual mistake in the execution of the guaranty agreement.

OPINION

The question to be decided here is the liability vel non of the appellees on the guaranty agreement executed by them to appellant. Appellant concedes that the obligation originally guaranteed the payment of a note to be executed by Buckingham Management Corporation and also does not seek to evade the fact that such note was never, in fact, executed by Buckingham Management Corporation. It seeks to avoid the effect of these admitted facts by contending, in its first seven points of error, that (1) the undisputed record discloses that the new note executed by Buckingham Joint Venture was accepted by appellant in substitution of the note described in the guaranty agreement; (2) that parol evidence of surrounding circumstances would be admissible to identify the subject matter of the guaranty agreement, namely, an obligation accepted by appellant in substitution of the note described in the agreement; (4) the provision of the guaranty agreement relating to “substitution” of obligations is such as to create an ambiguity and therefore pa-rol evidence is admissible to explain same; (5) the record presents sufficient evidence to raise a fact issue as to the intention of the parties to substitute obligations within the meaning of the written guaranty agreement; and (7) that appellees are estopped to deny the effectiveness of the applicability of the new note because of their failure to repudiate the guaranty agreement prior to disbursement of the loan funds by appellant. Additionally, it contends that the court should have sustained its motion for summary judgment because (3) the undisputed record shows that the new note was accepted by appellant in “substitution” of the note originally described in the guaranty agreement so that the new note would be covered by such agreement; and (6) if not, and if there was any doubt existing as to the effectiveness of the guaranty agreement in its application to the new note, appellees are estopped, as a matter of law, to deny the effectiveness of the agreement because of their failure to repudiate the guaranty agreement.

We have carefully reviewed the entire record in the light of the rule relating to judicial review of summary judgments announced by the Supreme Court in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, and find no merit to any of the contentions advanced by appellant and they are accordingly overruled.

A guaranty obligation is, by its very terms, a secondary obligation dependent upon the existence of a principal obligation. The term “guaranty” has been defined in numerous ways but in law it is applied to a promise of one person to perform an act of the same kind as another is contractually bound to the promisee to perform, or a promise to pay compensation for the other’s nonperformance, the promise being conditioned on the latter’s nonfulfillment of his duty. 27 Tex.Jur.2d, § 1, p. 279.

In considering the construction to be placed upon guaranty agreements our courts have universally declared that a guarantor is a “favorite of the law — that, like a surety, his obligation does not extend beyond what is nominated in the bond.” 27 Tex.Jur.2d, § 39, p. 306; Jarecki Mfg. Co. v. Hinds, Tex.Civ.App., 295 S.W. 274. The rule of strictissimi juris is to be applied in dealing with guaranty contracts. City State Bank & Trust Co. of McAllen v. United Paperboard Co., Tex.Civ.App., 146 S.W.2d 832; Jarecki Mfg. Co. v. Hinds, supra; North Texas Nat’l Bank v. Thompson, Tex.Civ.App., 23 S.W.2d 494, affirmed Tex.Com.App., 37 S.W.2d 735. Thus a guarantor’s obligation is limited to his undertaking and is not to be extended by construction beyond the terms thereof. There is no implied liability on the part of the guarantor and to charge the guarantor beyond the terms of his agreement, or permitting it to be altered without his consent, would not enforce the contract made by him, but would, in effect, make another for him. Schuab v. E. P. Dodge Mfg. Co., Tex.Civ.App., 56 S.W. 126; Smith v. First Nat’l Bank, Tex.Civ.App., 146 S.W.2d 270; Straus-Frank Co. v. Hughes, 138 Tex. 50, 156 S.W.2d 519.

The cardinal rule to be observed in the construction of guaranty contracts, like those of other contracts, is to ascertain and give effect, whenever possible, to the real intention of the parties. This intention is to be discovered primarily by reference to the words used in the contract. 27 Tex.Jur. 2d, § 40, p. 307. If the contract is clear in demonstrating the intention of the parties, the settled rule requires the court to give effect to that intention and the court is not permitted to look to the subject matter and the attending circumstances in order to give it a different construction. Lemp v. Armengol, 86 Tex. 690, 26 S.W. 941; Jarecki Mfg. Co. v. Hinds, Tex.Civ.App., 295 S.W. 274. However, if the meaning of the language is not plain, the attending circumstances may be considered by the court. Friedman-Shelby Shoe Co. v. Davidson, Tex.Civ.App., 189 S.W. 1029, err. ref.

Where uncertainty exists as to the meaning of a contract, rendering it susceptible to two interpretations, the one favorable to the guarantor, the other unfavorable, the interpretation will be given which favors the guarantor. City State Bank & Trust Co. of McAllen v. United Paperboard Co., Tex.Civ.App., 146 S.W.2d 832.

With these beacon lights of the law to guide our way we find no difficulty in determining the true intent of the parties as revealed by the clear and express language of the guaranty agreement. The agreement is not ambiguous. It is couched in clear and express language, easily understood by the average layman accustomed to contemporary language. A similar guaranty agreement, couched in almost identical terms, was considered by the New Jersey Superior Court, Appellate Division, in Garfield Trust Co. v. Teichmann et al., 24 N.J. Super. 519, 95 A.2d 18. The precise question was there presented to the court relating to an agreement wherein the guarantors were to be responsible only for loans and credit extended directly to Paramount Finishing Company, Inc. Instead, the executed notes were payable to a corporation known as Roco-Tex Chemicals, Inc. Liability on these obligations against endorsers was denied by the court which said, inter alia:

“We find no ambiguity or uncertainty in the language employed in the agreement. The intent and meaning of the contract is crystal clear, and under a reasonable construction thereof no liability was imposed upon the guarantors except for loans or credit extended directly to Paramount.”

The contract being unambiguous the application of the parol evidence rule becomes inapplicable. However, appellants argue that even so they were entitled to present parol evidence in order to identify the subject matter of the guaranty agreement as it related to a substitution of obligations. We cannot agree with this contention nor any of the contentions advanced by appellant concerning substitution of obligations. The record is undisputed that the original obligation to be guaranteed by the guarantors never came into existence. Inherent in the word “substitute” is the existence of another thing to be replaced. Since there was never a primary obligation created it logically follows that there can be no substitution.

Appellant’s contention that appellees are estopped to deny their liability on the note executed by Buckingham Joint Venture is predicated upon the contention that appellees failed to come forward and deny their liability on the guaranty agreement prior to the disbursement of the funds advanced by appellant. In the recent case of Aleo Oil & Gas Corp. v. Concord Oil Co., Tex.Civ.App., 375 S.W.2d 463, the court set forth the necessary elements of estoppel as being (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) to a party without knowledge, or means of knowledge, of those facts; (4) with the intention that it should be acted upon; and (5) the party to whom it was made must have relied or acted upon it to his prejudice. A reading of this record demonstrates the absence of at least two of these elements of estoppel. Appellant has shown no evidence which reveals any misrepresentation or concealment of material fact on the part of appel-lees. There is no evidence that appellees were under any duty to come forward and advise appellant that they did not intend to be bound by the terms of the guaranty agreement. Appellant was possessed of all of the facts surrounding the making of the new note to take the place of the one originally agreed to be guaranteed by appellees. Secondly, it cannot be said that appellant was without knowledge, or means of knowledge, of any of the facts. Appellant had in its possession a copy of the guaranty agreement at the time of the closing of the loan in question. This agreement revealed to appellant that appellees had contracted to assume the obligation of paying a note to be executed by Buckingham Management Corporation, not Buckingham Joint Venture. Appellant did not call for or demand the execution of another guaranty agreement prior to closing of the loan. Appellant did not call upon appellees to execute a ratification agreement confirming the substitution of the note of Buckingham Joint Venture for that of Buckingham Management Corporation. To the contrary, appellant merely called upon some of appellees who were members of the joint venture to ratify the acts of their agents in executing the new note. In the light of these facts the doctrine of estoppel is not available to appellant.

By its last three points on appeal appellant contends that the trial court should have sustained its motion for summary judgment or was in error in sustaining ap-pellees’ motion for summary judgment, because appellant was entitled to a reformation of the guaranty agreement on the grounds of mutual mistake. Appellant contends that the undisputed evidence establishes a mutual mistake of the parties with reference to the substitution of the notes in question, or, failing that, an issue of fact was created as to the issue of mutual mistake which would lead to reformation of the agreement. We find no merit in these points and overrule them.

An action brought to reform an instrument based upon mutual mistake is a suit in equity to enforce an equitable right to have a mistake corrected. If the instrument in question expresses clearly the intention of the parties at the time that the agreement is reduced to writing, then there is no occasion to reform it. However, if the agreement which has been reduced to writing contains an error, arising out of mutual mistakes, so that it does not truly represent the understanding of both the parties at the time of execution, equity may, indeed, reform it. But in this instance the court is without power to do more than that; it may not make a new contract for the parties, nor may it insert terms into the instrument which are beyond the original agreement and undertaking of-the parties. Continental Southland Savings & Loan Ass’n v. Bunyard, Tex.Civ.App., 109 S.W.2d 276; Long v. Humble Oil & Refining Co., Tex.Civ.App., 154 S.W.2d 925; Continental Casualty Co. v. Bock, Tex.Civ.App., 340 S.W.2d 527; Home Ins. Co., New York v. Privitt, Tex.Civ.App., 120 S.W.2d 294; Connor v. Brown, Tex.Civ.App., 226 S.W.2d 229.

When the record is examined in the light of these authorities it is obvious that there was no mutual mistake and therefore there can be no reformation on that basis.

While the facts of this case are somewhat complicated the basic problem presented yields to a simple solution. Ap-pellees bound themselves as guarantors on a definite undertaking of Buckingham Management Corporation. This undertaking never came into existence. Another and different obligation was accepted by appellant. Therefore, the original guaranty agreement was not complied with and the obligation of the guarantors was thereby discharged.

Finding no reversible error reflected in this record the judgment of the trial court is affirmed.

Affirmed.


author: DIXON, Chief Justice.

text:
    The GEO. D. BARNARD COMPANY, Appellant, v. Paul John LANE et al., Appellees.
    No. 16582.
    Court of Civil Appeals of Texas. Dallas.
    July 9, 1965.

      James L. Mitchell, Dallas, for appellant.
    Thompson, Knight, Wright & Simmons, Frank Finn, Jr., and David F. Hunt, Dallas, Harris, Ball & Davis, Arlington, for appellees.
   DIXON, Chief Justice.

Appellant George D. Barnard Company, a corporation, sued appellees Paul John Lane, Charles Spradlin and Western Catering Service, a corporation, for its damage alleged to grow out of a collision between two motor vehicles at a street intersection in Dallas, Texas. One of the vehicles was being driven at the time by appellee Paul John Lane, the other by appellee Charles Spradlin, an employee of appellee Western Catering Service.

A plea denominated a “Plea in Bar” was sustained on the ground that the allegations in appellant’s original petition show affirmatively as a matter of law that the alleged damage suffered by appellant was not proximately caused by appellees’ negligence. More specifically it is contended that the necessary element of foreseeability is lacking as is evident from the facts alleged in appellant’s petition. Appellant declined to amend its petition so its suit was dismissed.

In its only point on appeal appellant asserts error of the trial court in holding as a matter of law that the negligence of ap-pellees could not have been a proximate cause of appellant’s damages.

In its petition appellant alleged that on May 17, 1963 appellee Lane was operating his vehicle on a street named Chancellor Row. Appellee Spradlin was operating a vehicle owned by his employer, Western Catering Service, on a street named Regal Row. At the intersection of the two streets Spradlin operated his vehicle into a collision with Lane’s vehicle which resulted in Lane’s vehicle being propelled across a parkway and against a utility pole.

Appellant alleged that at the time and on the occasion in question Lane and Spradlin were each guilty of acts of negligence as follows: (A) in driving at an excessive rate of speed; (B) in failing to keep a proper lookout; (C) in failing to yield the right-of-way to the other’s automobile; and (D) in failing to timely apply his brakes.

Appellant’s petition describes a train of events, beginning with the collision of the two vehicles which finally ended in damage to appellant. We quote from appellant’s petition :

“II.
“Heretofore to-wit: on or about May 17, 1963, Plaintiff was in quiet use and enjoyment of its premises located at 9113 Sovereign Row in the City of Dallas, Texas, and was there engaged in the normal activity of its business. The premises of Plaintiff was cooled by refrigerated air supplied by air conditioning units that operated off electricity furnished by Dallas Power & Light Company through a transformer located on a utility pole adjacent to Sovereign Row.”
“IV.
“ * * * Sovereign Row is a street and thoroughfare running in a northerly and southerly direction one block East of Chancellor Row and it also intersects Regal Row.”
“VIII.
“Plaintiff would respectfully show that one, or more, or all, of the foregoing acts of negligence on the part of the Defendants proximately caused the collision of the two automobiles and the resulting collision of the automobile driven by Defendant Lane with the utility pole on which is located the transformers which supplied the electricity to Plaintiff’s air conditioning equipment, and that such act, or acts, of negligence on the part of the Defendants, and each of them, proximately caused the damage that Plaintiff suffered as will be hereinafter more specifically set out.
“IX.
“The damage to the transformer effected the amount of current being furnished to the air conditioning equipment, resulting in damage to the electrical circuits, relays, condensers and thermostats rendering the air conditioning equipment inoperative. Because of the extent of damage to the compressor unit, it was necessary, in order to restore air conditioning to the premises of Plaintiff to replace the unit at a cost to Plaintiff of Nine Hundred and Fifteen Dollars ($915.00), and Plaintiff has been damaged in that amount.
“X.
“Plaintiff would further show to the Court that his business was disrupted for in excess of two hours because of the interruption of electrical service to Plaintiff’s place of business proximately caused by the negligence of the Defendants, and that this interruption of Plaintiff’s business caused damage to Plaintiff, and Plaintiff says that at this time an accurate analysis of the loss to Plaintiff by reasons of this business interruption has not been determined, but Plaintiff reserves the right to plead further with reference to this item of damage.”

Ordinarily proximate cause is a question of fact but in some cases the question becomes one of law. Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; Corpus Christi Speedway v. Morton, Tex.Civ.App., 279 S.W.2d 903, 906-907; Cave v. Texas & P. Ry. Co., Tex.Civ.App., 296 S.W.2d 558, 560; Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543; Parker Food Stores, Inc. v. Pierce, Tex.Civ.App., 374 S.W.2d 699, 706. For purposes of our decision here we must accept as true the facts alleged in appellant’s pleading in determining the question whether the issue of proximate cause is an issue of fact or of law. Sartain v. Bosinger, Tex.Civ.App., 204 S.W.2d 524; Franklin v. Houston Electric Co., Tex.Civ.App., 286 S.W. 578.

It is well settled that proximate cause embraces two concepts: cause in fact and foreseeability. The presence of both concepts is necessary in order to bring legal proximate cause into existence. Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; City of Austin v. Salazar, Tex.Civ.App., 241 S.W.2d 445; Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560; Parker Food Stores, Inc. v. Pierce, Tex.Civ.App., 374 S.W.2d 699, 705.

Foreseeability as a legal term in the law of negligence and proximate cause does not contemplate that a party charged with negligence must have foreseen the exact or particular damage caused by his negligence. The test is whether the injury or an injury similar in general might reasonably have been anticipated as a natural and probable result of the negligent act or acts. Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; International-G. N. R. Co. v. Lowry, 132 Tex. 272, 121 S.W.2d 585. The wrongdoer is not responsible for a consequence which is merely possible, but only for a consequence which is probable according to ordinary and usual experience. Franklin v. Houston Electric Co., Tex.Civ.App., 286 S.W. 578; Davidson v. Methodist Hospital of Dallas, Tex.Civ.App., 348 S.W.2d 400, 403, and cases there cited.

Bearing in mind the legal principles above stated we have concluded that the allegations of appellant show as a matter of law that proximate cause is lacking. It is our opinion that taking appellant’s allegations as true, appellees cannot be held reasonably to have anticipated that their acts of negligence would have set up an extended train of events which would end in the type of injury or some injury in general similar to that suffered by appellant. In other words, we believe that appellees at the time they committed the named acts of negligence could not reasonably be expected to foresee that the natural and probable result of their negligence would be that their vehicles would collide, which would in turn cause the vehicle operated by Lane to be propelled against a utility pole, which would in turn cause a transformer to be damaged, which would in turn affect the flow of electrical current to a business establishment located some distance away on another street, which would in turn cause a disruption of electrical service in said business establishment for more than two hours, which would in turn cause injury to the air conditioning unit of said business, which would result in damage of the general type suffered by appellant in this case. Such damage or some damage similar in type in our opinion is too remote to have been foreseeable by appellees. Carey v. Pure Distributing Corp., 133 Tex. 31, 124 S.W.2d 847; Panhandle & S. F. Ry. Co. v. Sledge, Tex.Civ.App., 31 S.W.2d 146, 149; Byrd v. English, 117 Ga. 191, 43 S.E. 419, 64 L.R.A. 94. We therefore hold that the trial court properly dismissed appellant’s cause of action. Appellant’s point on appeal is overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: MASSEY, Chief Justice.

text:
    N. S. CHAPMAN, d/b/a Chapman Dairy, Appellant, v. The FIRST-WICHITA NATIONAL BANK OF WICHITA FALLS et al., Appellees.
    No. 16625.
    Court of Civil Appeals of Texas. Fort Worth.
    June 18, 1965.
    Rehearing Denied July 23, 1965.

      Humphrey, Gibson & Darden, and Lee Humphrey, Wichita Falls, for appellant.
    Guy Rogers, Nelson, Montgomery & Robertson, and Allan D. Montgomery, Wichita Falls, for First-Wichita Natl. Bank of Wichita Falls.
    Bagby & Ross, and Wm. L. Bagby, Arlington, for North Texas Producers Assn.
    Eggers, Sherrill & Pace, William F. Smith and J. N. Sherrill, Jr., Wichita Falls, for Sam Gose.
   MASSEY, Chief Justice.

On or about June 8, 1961, N. S. Chapman, finding himself in financial straits, entered into a contract with the First-Wichita National Bank of Wichita Falls. The objective thereof was to attempt an amicable solution of Chapman’s financial difficulties with an amount recouped by the. bank which it would be willing to receive in discharge of Chapman’s obligations.

Not a matter of dispute is the fact that the bank did, thereafter on August 17, 1961, take a judgment in the sum of $203,698.43 against Chapman. Thereby was settled the amount which, but for the aforesaid contract, would be owing by Chapman to the bank for the principal amount owing, plus interest and attorney’s fees.

By the June 8, 1961 agreement Chapman and the bank agreed that: “a prospective purchaser is willing to purchase the Chapman Dairy and its properties for a price of approximately One Hundred Seventy-nine Thousand and No/100 Dollars ($179,000.00) upon the condition that: 1. A disinterested Receiver is appointed to take over the operation of the Chapman Dairy Plant with directions to consummate the sale thereof; and 2. That a Federal Government milk supply contract heretofore bid by Chapman in the approximate amount of One Million One Hundred Thousand and No/100 Dollars ($1,100,000.00) is accepted and approved by the Government and can be sold, together with the Chapman Dairy, its properties and facilities.” By recitations thereafter appearing in the instrument Chapman agreed to the appointment of a Receiver for such purpose in consideration of the bank’s agreement to use its efforts to obtain an acceptance and approval of the Government to the transfer of the milk supply contract.

It was further agreed that “Upon consummation of the sale of said contract and the Chapman Dairy Plant, its equipment and facilities, and the payment of the proceeds thereof, less expenses of the Receivership by the Receiver to the bank” the bank would cancel all indebtedness owing by Chapman, release all liens securing the same, and return to Chapman certain pledged bank stock and insurance policies representing security (along with the liens) for Chapman’s indebtedness.

At time the aforementioned judgment was taken the bank delivered to Chapman a letter in which the parties’ agreement was either clarified or confirmed, in that it recited that if the proceeds of the sale (of the Chapman Dairy Plant, its equipment and facilities) were sufficient to retire Chapman’s obligations under the contractual agreement Hie bank would look only to the proceeds of the sale of the “mortgaged properties” and would pay the receivership costs and attorney’s fees. It would not be unreasonable to view the letter as stating a reduction of the bank’s rights as reflected in the original agreement.

Since the agreement (s) of the parties contemplated the sale of the Chapman Dairy as a “going business enterprise” we believe that a proper construction would be that it was intended thereby that the existing debts of Chapman accrued pursuant to the operation of his business would be payable — and chargeable to the “Chapman Dairy”, considered as an entity. Whether payment thereof be made before or after the sale would be immaterial. If made after sale the meaning of the agreement would be that sufficient proceeds from the total realized upon sale would be used to retire the indebtedness, so that the “Chapman Dairy” would be “out of debt”, r

Another matter of construction would be the meaning and intent of the contract wherein it was provided that the proceeds of the sale (as a debt-free business) would be accepted by the bank (if it was sufficient “to retire Chapman’s obligations under the contractual agreement”) looking only to the proceeds of the sale of the “mortgaged properties”. It would appear that the most favorable construction to Chapman would be that the parties intended that the bank agree to forgive and forget the fact of the judgment it took against Chapman, and the amount thereof, — and instead of seeking to enforce the judgment — accept in satisfaction of Chapman’s indebtedness the amount theretofore owed, conditioned upon the sufficiency of the proceeds realized from the sale of the “Chapman Dairy”. Cor-relatively, in the event the proceeds were in excess thereof the bank would receive only the aforesaid amount, with Chapman to receive the balance (i.e., the difference between the sale figure and indebtedness figure). .Furthermore, and in the event the bank should receive the amount of indebtedness as so computed it would be obliged to pay the receivership costs and attorney’s fees.

According to our calculations (from the figures in the bank’s pleadings under which it took its judgment for $203,698.43) Chapman’s indebtedness (as of the date the judgment was taken) was a little more than $183,408.10. The proceeds realized from the sale of the Chapman Dairy Plant for $179,364.25 (a figure which all parties agree we may use) were less than the indebtedness which the bank required in order to make itself whole — calculated only upon the amount of principal and interest owed on August 17, 1961. It therefore appears that the letter agreement (delivered to Chapman at the time the bank took its judgment) never became binding because the condition or contingency upon which the bank’s promise depended did not occur. Nevertheless, as hereinafter noted, the trial court treated the agreement as binding upon the bank and sought to apply it in the apportionment on accounting, in charging the bank with expenses of receivership and costs, etc. Of this the bank does not complain nor seek any curative action in this court. We are of the opinion that it reasonably could have — as a condition precedent to its compliance with the promise made in the aforementioned letter — insisted that it be supplied not only with the proceeds of the sale, but with the additional amount of $4,043.85 ($183,408.10 minus $179,364.25).

We revert to the occurrences in June, 1961. On June 5, obviously pursuant to agreement of all parties, the bank filed in the District Court of Wichita County, Texas, an Application for Appointment of Receiver. Chapman signed and filed a waiver of service and consented to such appointment. In the bank’s application no mention was made of the contractual agreement of June 8. However, the Order Appointing Receiver (following hearing before the court on June 8) reflected the presence of Chapman at the hearing. In the order appears the appointment of Sam Gose, as Receiver “of all the assets of Chapman Dairy that are described in and secured by instruments introduced in evidence and fully set out in Plaintiff’s original Petition, taking possession of such property and operating it to the best advantage possible, * * * buying and selling dairy products, maintaining a fleet of trucks and delivering dairy products * * * to carry on such business with as little change as is possible so that such concern will continue as a going business and be available for sale as such rather than to be closed down and sold as a defunct business * * The order authorized and directed the Receiver to use all available means to retrieve a government contract of Chapman which he had lost because of financial inability to carry out its provisions. The court’s language further provided that the Receiver was “authorized and directed to take any steps, sign any contract, execute any instrument and/or do any act whatsoever that will obtain such contract so that it, with the plant, can be sold together to any purchaser who would be willing to acquire the mortgaged property only in the event he could acquire the right to fulfill such contract with the government.”

The receiver took possession of the Chapman Dairy and all its property, mortgaged or not, and operated it until a sale was effected to North Texas Producers Association. A delivery of all the property was made. As applied to the mortgaged property, at least such occurred pursuant to an application of sale and authorization thereof. On November 10, 1961, the Receiver filed a final report. In the interim period Chapman wholly freed the Receiver’s hands. During the period in which the Receiver conducted the operation of the dairy it appeared that all interested persons were in complete accord.

It is to be observed that no record is brought forward of the evidence introduced at the hearing of June 8,1961. It is neither proved nor disproved that evidence introduced upon the occasion included the written contractual agreement of the same date between Chapman and the bank. Therein it was agreed that the Receiver would be authorized to sell the dairy and all its property and facilities (inferentially, whether or not items thereof he mortgaged or pledged). We have no doubt, however, that the contract was either presented to the court, or that the evidence demonstrated to the court that the parties were willing to enter into such agreement. If so, it therefore constituted part of the evidence before the court upon which it entered the order appointing the Receiver. See 49 Tex.Jur. 2d 123, ’’Receivers”, § 94, “Continuance of business”.

December 8, 1961, appears to be the first occasion that Chapman found fault with anything done or desired to be done in connection with the entire transaction. He advanced the contention that he should not be charged with any of the expenses of the Receivership. Among such he includes the loss sustained by the “Chapman Dairy” while it was operated by Receiver Gose. He advanced the further contention that such of his property as was not covered by instruments of lien or pledge should not have been treated as property administered by the Receiver as “in Receivership”. He claimed that these properties, which he had “tacitly agreed” that the Receiver use in the operation of the dairy business (in order that interruption in operation might be avoided) should have been returned to him within a reasonable time after the sale of the mortgaged property. Actually, it seems to be conceded by Chapman that the properties should not be returned to him.

From December 8, 1961 Chapman elected to proceed on the theory that his property which was neither mortgaged nor pledged was converted by the Receiver and/or North Texas Producers Association. His theory of recovery is that such parties should be adjudged liable to him for the value of his property, considered as “converted”. He made an exhibit a. part of his pleadings. He itemized such property with the values he attributed thereto. For example: Chapman listed seventeen motor vehicles on which there was no record of lien; an inventory summary of milk and ice cream supplies with cans, cases and racks; “accounts receivable” as of June 8, 1961; an inventory of office and garage equipment at the dairy plant; and thirty-one ice cream cabinets, with three can milk dispensers (being cabinets and dispensers purchased subsequent to date of the mortgage). The total claimed on the property itemization was $94,709.03.

All parties were joined upon issues made by pleadings. Following a hearing before the court, judgment was rendered with an order incorporated in discharge of the Receiver. Pursuant thereto Chapman received approximately 100 ice cream cabinets which the evidence reflects were in various places, mostly in the State of Oklahoma (possession of which was never acquired by either the Receiver or by North Texas Producers Association) and a net amount in money of $5,120.08. In that connection we should state that North Texas Producers Association held a judgment against Chapman which had been secured in proceedings extraneous to those under scrutiny, and the amount thereof was included as a part of the accounting considered by the court in arriving at the net amount to which Chapman was found entitled. The judgment was in the amount of $10,573.59, and Chapman does not contend that there was any error on the part of the court in treating and considering it in the accounting. When said amount is added to the $5,120.08, the “net” in money to be realized by Chapman (as applied to the instant proceeding) was the. sum of $15,693.67.

Therefore Chapman received $15,693.67 in cash; restoration of his bank stock and life insurance policies; and a “clear title” to the ice cream boxes. The “net” price received by the Receiver for the mortgaged properties of Chapman, sold and delivered to North Texas Producers Association (with the aforementioned ice cream cabinets considered as included) was $179,364.-25. This the bank is agreeable to accepting pursuant to the court’s interpretation of the contractual agreements of Chapman and the bank.

We believe that our problems are simplified by first passing upon the provisions of the contractual agreement(s) relative to the obligation of Chapman. It appears from the face thereof, without necessity to resort to extrinsic evidence, that Chapman agreed that the Receiver would take charge of the Chapman Dairy as a going, active and operating enterprise, including the plant, equipment and facilities, and also including the operating cash (petty cash) on hand and the accounts receivable, all as might be suspectible to inventory at the time the Receiver went into possession. Further, that if and in the event the contemplated sale should materialize the Receiver (whether in his capacity as such, or otherwise) should transfer to the purchaser all Chapman Dairy property suspectible to inventory at time of the delivery. Of course, such property as contemplated by the contract which the Receiver (excusably) could not and did not reduce to possession would, of necessity, be excluded from property the Receiver would seize and administer. As circumstances developed such was part of the property under mortgage, and therefore become matter to be considered in connection with the accounting of what was owed by Chapman to the bank — in that the value which would have been therefor received, pursuant to the sale to North Texas Producers Association, would be an obligation subsisting even after sale, for the proper sale price would be thereby reduced.

In the instant case this meant that it was not $179,364.25 which North Texas Producers Association paid, but a smaller amount arrived at by deducting from such figure the value of the property not reduced to possession — and not delivered — as agreed upon between such purchaser and the Receiver. Said amount would likewise become (or remain) owing by Chapman to the bank — for the bank could not obtain reimbursement therefor from the Receiver. If said amount be paid by Chapman (whether in cash or by way of credit on the accounting) the situation would be the same as would have been the case had North Texas Producers Association received and paid for the property, with this difference: Chapman would receive back the title to his own property, now freed of any lien. The property consisted in approximately 100 ice cream boxes previously mentioned. They were to be found in various locations, principally in the State of Oklahoma. The court approved the amount of $5,000.00 as proper to be used for the value thereof. We may treat the situation as though the court decided, for purposes of the receivership, that the average value of each ice cream box was $50.00. There was adequate evidence placed before the court which excused and justified the Receiver’s failure to reduce the ice cream boxes to possession.

There were some ice cream boxes, which may have been in part among those in Oklahoma and in part among those taken into possession by North Texas Producers Association (pursuant to the sale effected by the Receiver), acquired by Chapman subsequent to the date he executed the mortgage the bank contended had the effect of applying to all such cabinets. Chapman claims that these and certain milk dispenser equipment should not have been considered as included in the property sold by the Receiver. He contends that the mortgage did not cover such. We hold that they were covered by the mortgage and thereby encumbered from the time they were acquired. That they so became could be a matter of contract between the parties, i. e., the bank and Chapman, under the law of this State. In the portion of the mortgage describing the property of Chapman which he' agreed should be covered thereby appeared the following language: “together with all of the interest of Grantor (Chapman) in and to such realty as well as all fixtures and personal property located upon such land or later placed thereon, or used or obtained in connection therewith, together with all other interest in and to the above described real and personal properties which the Grantor may now own or may later acquire, all of which property is collectively referred to herein as the ‘mortgaged property’”. The premises contemplated by this language was the “Chapman Dairy”.

We refer again to the letter the bank gave Chapman when it took judgment on August 17, 1961. Therein the bank agreed that if the proceeds of the sale met a certain test it would pay the expenses of the Receivership. Although the test was not met the trial court proceeded to treat the condition of affairs following the sale by the Receiver as though they were, and of this the bank did not complain. We will treat it likewise. With this done it is obvious that the bank agreed that it, and not Chapman, would pay the expenses of Receivership. There is no doubt but that the Receiver’s fee allowed Gose and the reasonable fees allowed the Receiver’s attorney and accountant, etc., would properly be treated as expenses of Receivership. These amounted to $9,730.96. These the bank did pay — or was treated as having paid in the judgment from which the appeal was taken. However, during the few months between the time the Receiver took charge of the Chapman Dairy Plant and the time it was turned over to North Texas Producers Association, as the purchaser from the Receiver, an operating “loss” of approximately $20,000.00 was sustained. Chapman’s contention is that this “loss” should be treated as part of the expenses of Receivership covered by the bank’s letter and the court erred in failing and refusing to so treat it. Chapman contends that he should have credit therefor through charging the “loss” against the bank. In other words Chapman’s theory is that the sale of the mortgaged property — as part of the overall sale of the Chapman Dairy — would have been worth $20,000.00 more if there had been neither a “profit” nor a “loss” from the Receiver’s operation of the dairy during Receivership, whereby he would be prejudiced unless the bank paid the $20,000.00 as expenses of Receivership.

While not established in the evidence it is to be presumed that the Chapman Dairy was losing money even before there was a Receivership. Evidence in the record, even from Chapman, shows that unless the business was continued, so that the Receiver could sell it as a “going enterprise”, the property — mortgaged or not— would be “practically worthless”. The term last used is a figure of speech, certainly connoting the parties’ mutual understanding that by any other character of sale the proceeds to be realized would be less than two-thirds (%) the proceeds hoped to be realized in following the agreed method. There was therefore good reason why the Receiver should continue to operate the business, especially with the agreement of all parties though his conduct thereof involved an operating loss. See 75 C.J.S. Receivers § 184, Business Conducted at Loss, p. 831.

In the windup of the affairs of the Receivership the court was administering equity. The term “expenses of Receivership” has a meaning which might vary from one situation to another. In our opinion operating loss experienced by continued operation of Chapman’s business did not constitute “expenses of Receivership”. It was within the sound discretion of the trial court to treat the operating “loss” as other than such expenses; also to charge such against the mortgaged property. 75 C.J.S. Receivers, § 266, — Receivership Expenses, p. 894, and § 301, For Receivership Expenses, and subsequent sections under subtitle, C. Parties, Property, and Funds Liable, p. 977, et seq.

From what has been written, herein-above, we have now disposed of Chapman’s complaints as against the bank. The bank is making no complaint as against Chapman. We next direct our attention to Chapman’s complaint as against Sam Gose, individually, and as the Receiver.

We believe it obvious from the record that Gose was to serve in a dual capacity; as Receiver in so far as the interest of the bank was concerned, in the operation of the Chapman Dairy during the Receivership, and as applied to the property mortgaged to the bank as security;— and as Chapman’s agent in connection with the disposition of the Chapman Dairy property not mortgaged. As Chapman’s agent Gose was not to be separately compensated, but it was understood that his sole compensation would be a “receiver’s fee”. As “agent”, however, Gose was authorized to sell such of Chapman’s property as had the character of “Chapman Dairy property”. At page 194 of the statement of facts Chapman testified that what he expected to receive “at the end of the line, after the sale was effected” was payment for his property. Thereby he meant that he expected payment for such of his property as might be disposed of by Gose, as his agent for the purpose.

It thus becomes important to consider Chapman’s pleadings from the standpoint of his cause of action against his agent for the latter’s malfeasance or misfeasance. From our examination the only allegation which appears to charge Gose, as agent, with anything done or failed to be done is (1) failure to make an accounting for the property administered and/or sold by him, and (2) that Gose, as agent, or both Gose and North Texas, converted the property of a value in excess of the sum of $94,709.03, to Chapman’s detriment.

The evidence established that an accounting was made by Gose, in so far as the whole of the accounting might be said to relate to and include the property administered and/or sold by him as an agent for Chapman. The evidence established that Gose did not convert any of Chapman’s property or any proceeds thereof. The property of the “Chapman Dairy” — not covered by mortgage — was converted by North Texas, if converted in fact. Of this aspect of the case treatment is given at another point of the opinion.

No citation of authority is necessary to substantiate the law to the effect that the burden of pleading and proof is upon the complainant if he seeks to establish a cause of action as a principal against his agent because of the agent’s breach of duty owed under the relationship. In neither respect may it be said that Chapman has discharged such burden in this case. Considered as an agent, Gose was properly acquitted of any liability to Chapman, as a principal.

Chapman also complains of Gose as the Receiver. In respect thereto one item of complaint relates to the fact that the Receiver paid debts of Chapman, owing prior to the Receivership, of approximately $8,526.07. The evidence establishes that the debts were of “the Chapman Dairy”, which all agreed must be continued as an operating business so that it might be sold as such. Such objective would have been hampered, indeed might even have been inhibited, had the Receiver refused to pay these debts. Furthermore, reference is here made to the benefits which accrued to Chapman as well as the bank in the enhancement of the price realized for the Chapman Dairy and to the fact that through its attainment Chapman was enabled to obtain life insurance policies and bank stock which the bank might have levied upon to make itself whole. Indeed, Chapman was exposed to liability in the amount of the $203,698.43 judgment of August 17, 1961.

What is said in the foregoing paragraph also has application to $4,505.76 in outstanding checks which “Chapman Dairy” had issued pursuant to business operations without funds on deposit to cover. The Receiver made a deposit to cover the checks with the objective of preserving the Chapman Dairy as a going business enterprise so that it would have a greater value at the time it should be sold. Chapman’s complaint that said amount constituted no proper part of property included in the Receiver’s accounting is without merit.

Consideration given what we have stated in the two preceding paragraphs the two item groups therein considered constituted a part of a total of $30,033.73 which Chapman contends the Receiver was obliged to account for, but did not. Thus is clarified the Receiver’s accounting for the $30,033.-73. We find that Chapman is in error in his contention that the Receiver failed to make an accounting therefor. The Receiver’s accounting included such, and the court approved the entire accounting. There was no abuse of discretion by the trial court in its approval.

From what has been written, herein-above, we have now disposed of Chapman’s complaints as against Sam Gose, individually as Chapman’s agent, and as the Receiver for the Chapman Dairy. We next direct our attention to Chapman’s complaint as against North Texas Producers Association.

One point of Chapman’s complaint against North Texas relates to the 100 ice cream cabinets heretofore discussed in the portion of this opinion relating to his complaint against the bank. We are reminded that these cabinets were included in the bank’s mortgage and that the Receiver was directed to reduce them to possession for ultimate sale as included in the mortgaged property of the “Chapman Dairy”. They were not reduced to possession by the Receiver, and his explanation thereof was satisfactory. He did purport to deliver title to North Texas Producers Association, but North Texas could not obtain possession. It became a matter of accounting because of the inability of the Receiver to transfer both title and possession. This matter of accounting was settled by cancel-ling out the purported transfer to North Texas Producers Association of any interest in the cabinets under an agreement that the total value thereof (intended to be used in the Receiver’s sale to North Texas) was $5,000.00. Hence, instead of the Receiver having $5,000.00 to deliver to either the bank or to Chapman it was decided by the court that Chapman should have the title thereto (or the title, which was already Chapman’s, should remain with him), with the accounting to show an obligation of Chapman of $5,000.00 because of the circumstances.

Chapman’s point of error complains that the court erred when it charged him “for the benefit of North Texas Producers Association” with the $5,000.00. Viewed from one of several possible standpoints it would be proper to say that the court so charged Chapman. On the other hand it would be correct to say that Chapman had property of the value of $5,000.00 which was covered by a lien to the bank, but which lien the bank released so that Chapman had the same property free and clear of any lien. It has already been observed that the bank will not be made whole under the disposition adopted by the court. Even with an extra $5,000.00 the bank would barely be made whole in respect to the principal and interest owed by Chapman. We fail to see error. If any existed there would be no prejudice to Chapman.

Chapman has another point of error complaining of North Texas Producers Association. Such is in respect to the trial court having failed to require it to account to Chapman for the value of properties (of Chapman) transferred to it by Sam Gose, acting in what we have held to be an agent’s capacity.

North Texas owed no one an obligation to render an accounting. At least it did not owe such an obligation to Chapman. The only theory of recovery by Chapman as against North Texas Producers Association is upon the premise that it converted his property. Because of the conversion Chapman seeks to recover of it the reasonable value thereof. The record clarifies the identity of the property in question, and it was shown that Chapman was acquainted with its condition at the time North Texas received it. We have already mentioned that Gose, as Chapman’s agent, was properly acquitted of any participation with North Texas in a conversion of the property. Under the theory of the court such property was indeed converted by North Texas Producers Association. The court decided upon the value thereof and, in effect, gave Chapman a judgment therefor. The court included such in the accounting independently made by it in the judgment. Thereby it factually found which of the parties owed which of the other parties, how much each owed and to whom. If the court was correct in the accounting, and we hold that in so far as Chapman’s interests were concerned the accounting was more than fair in its decision relative to what belonged to him over and above what was covered by the bank mortgage — constituting the property the court chose to treat as “converted”, — ■ we proceed to examine the record and the judgment with the specific question in mind: “How much did North Texas Producers Association owe Chapman for the unencumbered property of Chapman which it converted?”

If a man bring suit against another on the theory of conversion for the value of property converted, he must shoulder the burden of proving “value”. Here Chapman, as such a plaintiff, alleged the value to be more than double the amount the court awarded him. All the plaintiff’s testimony concerning value was opinion testimony of Chapman, himself, and he was furthermore an interested party. There was evidence which supported the court’s finding when it acted as the finder of fact in the premises. Chapman’s value testimony provided a “ceiling” for which he might have obtained a judgment. There would be no “floor”. Perhaps it might be contended that the court’s finding of value, and its judgment awarding such, was against the great weight of the evidence. Chapman has no point of error presenting that contention and we therefore have not applied tests appropriate to such a question.

We have examined the whole record in light of each point of error presented and have decided that each must be overruled as either wholly lacking in merit, or as failing to present reversible error.

Judgment is affirmed.


author: CADENA, Justice.

text:
    Appeal of Marion Faye EVETTS et vir.
    No. 14411.
    Court of Civil Appeals of Texas. San Antonio.
    June 16, 1965.
    Rehearing Denied July 21, 1965.

      Butler, Schraub, Schafer & Gandy, Robs-town, for appellant.
    Lewright, Dyer & Redford, Corpus Christi, for appellee.
   CADENA, Justice.

Marion Faye Evetts, joined by her husband, J. B. Evetts, Jr., appeals from the action of the trial court in denying her application to change her surname to Her-ron.

Until May 29, 1961, appellant was the wife of John Charles Herron. On that date, John Charles Herron died as the result of injuries received by him in Nueces County, Texas. Appellant instituted suit in Nueces County under our wrongful death statute (Art. 4675, Vernon’s Ann. Civ.Stats.), individually and as next friend of three minor children, against Southwestern Oil & Refining Company to recover for the death of John Charles Her-ron. That suit is still pending.

On June 22, 1963, appellant married J. B. Evetts, Jr., with whom she and her three children now reside in Alice, Jim Wells County. Her three children still bear the surname “Herron.”

Appellant, joined by her husband, filed her application for change of name in Jim Wells County, the county of her residence, as required by Art. 5928, Vernon’s Ann.Civ.Stats. In the application it is alleged that, although evidence of a subsequent marriage is inadmissible in a suit by a widow under the wrongful death statute, the attorneys for the defendant in the Nueces County litigation have stated their intention to convey to the jury in that suit the knowledge that she has remarried, by asking appellant to state her present legal name. The purpose of the application for change of name is to permit appellant to continue prosecution of the wrongful death action under the name Marion Faye Herron, so as to protect more fully her right not to have the irrelevant fact of her remarriage brought to the attention of the jury, directly or indirectly.

At the request of the trial judge, counsel for appellant notified counsel for Southwestern Oil & Refining Company, defendant in the Nueces County wrongful death suit, of the application. Counsel for Southwestern participated in the hearing of appellant’s application, but no brief has been filed on behalf of Southwestern in this Court.

At the conclusion of the hearing, the trial judge said, “Gentlemen, I don’t want to be in the position to affect a lawsuit in some other court. I am going to deny the application for change of name.”

At the request of appellant, the trial judge filed findings of fact and conclusions of law. The trial judge found that appellant’s husband, who has no interest in the Nueces County litigation, has consented to the change of appellant’s surname. He further found that appellant is known as Marion Faye Evetts, that she and her minor children plan to continue to live in the City of Alice, and that if the application for change of name were granted, appellant would continue to live with J. B. Evetts, Jr., as his wife, with her surname being Herron and her husband’s surname being Evetts. The trial judge concluded that it would not be to the best interest of appellant to grant her application for change of name, and that the change of name applied for is unnecessary to protect any of the legal rights of appellant.

In early England the surname was relatively unimportant, the given name being considered the more important of the two. Thus, in Smith v. United States Casualty Co., 197 N.Y. 420, 90 N.E. 947, 948, 26 L.R.A.,N.S., 1167, Judge Vann cites the case of a man with eight sons, each with a different surname and none with the surname of the father. After noting that the common law was not too precise in the case of surnames (a grant to John, son of William, was good), he states “for the Christian name, this ought to be perfect.”

The unimportance of the surname is further reflected in the common law rule that a man may lawfully change his surname at will, “and this without the intervention of either the sovereign, the courts, or Parliament.” 21 Am. and Eng. Encyc. of Law (2d ed.) 311. However, the Christian name could be changed only upon confirmation (with the consent of the bishop and for good cause shown) or by Act of Parliament. Note (1950) 24 Tul.L. Rev. 496, 497.

Even today, in England, there is no statute which regulates the right of a person, other than an alien, to change his surname and to adopt any name by which he chooses thereafter to be known. Frequently, a man who desires to change his name does so by means of a royal license, or by Act of Parliament, or by a deed poll duly enrolled in court and advertised. But such formalities are unnecessary and are resorted to merely for the purpose of giving notoriety to the change of name and preserving evidence of it. 16 Halisbury’s Laws of England (2d ed., 1950), 639. But the modern Englishman who wishes to change his Christian name must still do so at confirmation or by Act of Parliament. Id.

The common law of England was transferred to this country, and its doctrines are said to apply when not abrogated by statute. See Art. 1, Vernon’s Ann.Civ. Stats. The common law rules with respect to change of name seem to be followed generally in the United States, although, for name-changing purposes, we make no distinction between Christian names and surnames. In re Leibowitz, 49 F.Supp. 953 (D.C., Ill.); Smith v. United States Casualty Co., supra; Evans v. Brendle, 173 N.C. 149, 91 S.E. 723; In re Useldinger, 35 Cal.App.2d 723, 96 P.2d 958; Dwight, Proper Names, 20 Yale L.J. 387 (1911).

It appears that throughout our history inhabitants of this country have freely exercised their common-law right to change their names. There seem to have been three principal reasons for changing names: (1) the transformation of old names due to frontier illiteracy or local habits of pronunciation; (2) the adoption of surnames, generally English, by Indians and, after the Civil War, by newly-freed slaves; and (3) the adoption of English names, or the anglicization of foreign names, by immigrants and the descendants of immigrants. 15 Encyc.Britannica, Names, p. 1159.

Many states, including Texas, have adopted statutes prescribing a procedure for change of name. 30 Am.Jr., Name (1941), p. 610, § 28. But it is generally held that these statutes do not abrogate the common law rule which allows a person to change his name without resort to legal procedure. They merely provide a method for recording the change. Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015; Don v. Don, 142 Conn. 309, 114 A.2d 203; Degerberg v. McCormick, 184 A.2d 468 (Del.Ch.); Reinken v. Reinken, 351 Ill. 409, 184 N.E. 639; Petition of Buyarsky, 322 Mass. 335, 77 N.E.2d 216; Note, 16 N.C.L.Rev. 187, 189-190; 65 C.J.S., Names, § 11, p. 22.

We have found no case involving facts similar to those now before us. The only case with which we are familiar in which a married woman has attempted to change her name, with or without her husband’s consent, is Converse v. Converse, 9 S.C. Rich.Eq. 535. There the South Carolina Court said that under a statute which allowed a court in its discretion to change the name of any person on application, the court had the power to change the wife’s name against the wishes of her husband, but that the wife’s application would be denied where it would prevent a reconciliation between the parties.

A person’s right to change his name by court order is not absolute. Thus, it is generally held that an application for a change of name may properly be denied where the change is sought for a fraudulent purpose, or where the change of name will result in the invasion of the rights of others. Petition of Falcucci, 355 Pa. 588, 50 A.2d 200. And even in the absence of a showing of fraud or the invasion of rights of another, the court may be justified in denying an application for a change of name. In re Useldinger, 35 Cal.App.2d 723, 96 P.2d 958. That is, under statutes prescribing procedures for change of name, an order changing the name of an applicant is a matter of judicial discretion, and not of right. Ex parte Taylor, Tex.Civ.App., 322 S.W.2d 309, no wr. hist.; Plass v. Leithold, Tex.Civ.App., 381 S.W.2d 580, no wr. hist.; 38 Am.Jur., Name, p. 610, § 29.

The Texas statute authorizes a statutory change of name if, in the opinion of the judge, “it is for the interest or benefit of the applicant to so change his name.” Art. 5928, Vernon’s Ann.Civ.Stats. The evidence introduced by appellant at the hearing tends to show that some benefit might result to appellant, from the viewpoint of the prosecution of the wrongful death action, if her surname were changed to that of her deceased former husband. However, we cannot say, after examining the record, that the trial court abused its discretion in denying the application for change of name. The evidence showed that appellant and her present husband, Mr. Evetts, would continue to live together as husband and wife if the application were granted, creating a situation where Mrs. “Herron” would, to all outward appearances, be cohabiting with Mr. Evetts. The difficulties which would result from a change of appellant’s surname are spotlighted by the admission of her counsel during oral argument, in response to a question from the bench, that at the conclusion of the Nueces County litigation appellant intends to file an application for a change of her surname from “Herron” back to her present surname, “Evetts.”

At the hearing below, appellant’s husband was questioned concerning his method of dealing with day-to-day problems which might result from a change of his wife’s surname. His answers were hesitant and, sometimes, evasive. For example, he said that he would encounter no difficulty in introducing appellant to others as his wife, because he would merely introduce her by her Christian name. He also said that there would be no problem with reference to articles delivered to their home, because arrangements could be made for the children to sign for such articles. From the fact that appellant would be introduced by her husband as “my wife, Marion,” rather than as “my wife, Mrs. Herron,” leaving the impression that she was Marion Evetts, and from the other testimony in the record, the trial court could well have concluded that appellant had no intention of actually assuming, for the purposes of identification, the surname “Herron.”

We do not wish to be understood as holding that the trial court would have erred in granting the application. We merely hold that, under the circumstances of this case, the trial judge did not abuse his discretion in denying the application. In the absence of a showing of abuse of discretion, the judgment below must be affirmed.

      . Appellant in this case is not blazing a new trail in attempting to change her surname so that the fact of her remarriage will not be brought to light in litigation where she seeks to recover for the death of her former husband. See Kronzer, Advantages to be Gained by Trial Motions for Plaintiff, 6 So.Tex.L.J. 179, 185 (1962). At the hearing below, appellant introduced in evidence a certified copy of an order of a district court of Brazoria County, Texas, changing the surname of a remarried widow so that she could prosecute a wrongful death action using the surname of her former husband.