author: NORTHCUTT, Justice.

text:
    Edd MUNCY et al., Appellants, v. Ralph C. JOHNSTON et al., Appellees.
    No. 7615.
    Court of Civil Appeals of Texas. Amarillo.
    March 28, 1966.
    Rehearing Denied May 2, 1966.

      Thomas J. Griffith, Jr., O’Connor & Brister, Lubbock, for appellants.
    Crenshaw, Dupree & Milam, Lubbock, Ben P. Ayres, Floydada, for appellees.
   NORTHCUTT, Justice.

This was an action brought by Edd Muncy and others, appellants herein, in behalf of themselves and all other owners of real property situated within the Floy-dada Independent School District against the Floydada Independent School District, its Board of Trustees, its 1965 Board of Equalization and its tax assessor-collector, all appellees herein, seeking an order enjoining and restraining the appellees from doing any and all of the alleged acts as set out in appellants’ petition and from placing a value on the property of appellants and from adopting and approving a tax roll.

Appellants alleged numerous unlawful, discriminatory, confiscatory, and arbitrary violations of the Constitution and laws of the State of Texas by the Board of Equalization as to show that the collection of taxes was not equal and uniform; that all property was not taxed in proportion to its value; did not tax many items of property that were subject to taxation and thereby taxing appellants more than they should be taxed.

Appellants filed their petition on August 4, 1965, between 4:00 and 5:00 o’clock p. m. and appellees were served with notice thereof on August 5, 1965. The Board of Equalization completed its work in connection with the 1965 tax roll except for the function of examining and approving such roll as and when prepared and submitted by the tax assessor-collector on August 4, 1965, about 11:00 o’clock p. m. The tax assessor-collector completed the 1965 tax roll and submitted such roll to the 1965 Board of Equalization and the same was approved by the Board on August 19, 1965. The collection of taxes on the 1965 tax roll commenced on October 1, 1965. Appellants did not procure any character of order upon their pleas for temporary restraining order, temporary injunction, for appointment of master, or upon either of such pleas, contained in their original petition, from any judge until October 18, 1965, at 2:30 o’clock p. m., at which time an order was entered setting a hearing on the pleas of such petition for temporary injunction and for appointment of a master for October 25, 1965, at 1:30 o’clock p. m.

Appellees filed a plea in abatement to appellants’ suit insofar as the same sought temporary restraining order, temporary injunction and permanent injunction restraining appellees from completing the 1965 tax roll. The trial court sustained appellees’ plea in abatement and entered an order on November 16, 1965, denying the appellants’ plea for temporary injunction and for mandamus. The court’s order provided that the same was made and entered without prejudice to any rights or remedies appellants might show themselves entitled upon trial of the case on the merits. From that order appellants perfected this appeal.

The appellants requested the judge to prepare and file his findings of fact and conclusions of law. The trial judge made and filed his findings of fact and conclusions of law as follows:

FINDINGS OF FACT
“1. I find that the 1965 Board of Equalization of Defendant Floydada Independent School District completed its work in connection with the 1965 tax roll of such District, except for the ministerial function of examining and approving such roll as and when prepared and submitted by the Tax Assessor and Collector of such District, on August 4, 1965, at 11 P. M.
“2. I find that the Tax Assessor and Collector of Defendant District completed the 1965 tax roll of Defendant District, and submitted such roll to the 1965 Board of Equalization of such District, by which Board the same was approved, all on the 19th day of August, 1965.
“3. I find that collection of taxes on the 1965 tax roll of Defendant District commenced on October 1, 1965.
“4. I find that Plaintiffs filed their Original Petition herein on August 4, 1965, between 4 and 5 o’clock P.M.
“5. I find that Defendants had no notice of the filing of Plaintiffs’ Original Petition herein until service of citation on them on the 5th day of August, 1965.
“6. I find that the Plaintiffs did not procure any character of order upon their pleas for temporary restraining order, temporary injunction, and for appointment of master, or upon either of such pleas, contained in their Original Petition, from any judge having jurisdiction in the premises, until October 18, 1965, at 2:30 P.M., at which time the undersigned judge entered his order setting hearing on the pleas of such Petition for temporary injunction and for appointment of a master for the 25th day of October, 1965, at 1:30 P.M.
“7. Plaintiffs failed to exercise reasonable diligence to procure the order of a judge having jurisdiction in the premises upon their pleas for temporary restraining order, temporary injunction, and a master herein.
' CONCLUSIONS OF LAW
“1. Plaintiffs having failed to procure any character of order from any judge having jurisdiction in the premises upon their pleas for temporary restraining order, temporary injunction, and for appointment of master in chancery, or upon either of such pleas, until October 18, 1965 and long after completion of the work of the Board of Equalization upon the 1965 tax roll, completion and approval of such roll, and commencement of collection of taxes upon such roll, such pleas have become moot, and the plea in abatement of Defendants to such pleas must be sustained.”

Appellants contend by their first point of error the court erred in its findings of fact 1, 5, 6 and 7 because there was no evidence to support such findings. In considering the contention of no evidence we must consider whether there is any evidence of probative value which with the inferences that may be properly drawn therefrom will reasonably support the findings. The trial judge was the judge of the facts proved and also the inferences drawn therefrom, provided such inferences were not unreasonable. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616.

By appellants’ second point of error it is contended in the alternative that the trial court erred in making its findings of fact 1, 5, 6 and 7 for the reason the same was contrary to the preponderance of the evidence. In considering the findings of the court being contrary to the preponderance of the evidence we must consider and weigh all of the evidence in the case and to set aside the holding and remand the case for a new hearing if the finding is so against the great weight and preponderance of the evidence as to he manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. We are of the opinion that the above-mentioned undisputed record is such as to sustain the finding of the trial judge as to findings 1, 5, 6 and 7 and is not contrary to the preponderance of the evidence. We overrule appellants’ first and second points of error.

It is the contention of appellants by their third point of error that the court erred in holding that appellants failed to exercise reasonable diligence since the evidence shows that any failure to obtain orders was the failure of the judiciary and not of the appellants. There is nothing in this record to show appellants complied with Article 4643, Vernon’s Ann.Civ.St., before requesting the judge of another district to grant the injunction. Without complying with said article appellants requested the administrative judge to appoint a judge to act in the matter. Judge Ellis was appointed to hear the matter herein involved sometime after the first of October, 1965. The first and only fiat issued herein was issued on October 18, 1965, at 2:30 o’clock p. m. by Judge Ellis. We overrule appellants’ third point of error.

By appellants’ fourth point of error it is contended the court erred in concluding that the legal issues pertaining to injunction and appointment of a master in chancery were moot, such finding being in conflict with the court’s judgment made without prejudice to any rights or remedies of appellants. This was a temporary injunction suit and the actions sought to be enjoined were in full force and effect before the matter was presented to a judge. In a hearing on an application for temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549; Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589. The tax roll and plan had been approved and put into effect before the application for a temporary injunction was presented to the judge. So far as the injunction was concerned all the court should do was to leave the roll and plan status quo. Any relief appellants might be entitled to should be determined upon a trial of the case on its merits. Appellants’ point of error four is overruled.

The remaining points of error presented by appellants concern the failure of the trial court to grant temporary injunction and that this court should grant the injunction and failure of the court to make additional findings of facts as requested by appellants. We are not passing upon any rights appellants might have except the right to have the temporary injunction issued. It is undisputed in this record that appellees had completed the work on the tax roll and put the plan into effect and had commenced the collection of taxes upon such tax roll before appellants ever presented their request for temporary injunction to any judge.

It is stated in Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, as follows:

“Of course petitioners cannot escape the payment of taxes because of the deliberate and arbitrary failure to tax bank deposits. ‘The government does not lose its right to taxes justly owing on one parcel of property, by reason of the failure of its officers, either negligently or designedly, to assess other property that is likewise taxable.’ City of Wichita Falls, v. J. J. & M. Taxman Refining Co., Tex.Civ.App., 74 S.W.2d 524, 530, writ refused; Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 198 S.W.2d 879. But petitioners do not seek to escape the payment of taxes; they seek only to require a revision of the assessed valuations of their property so that they will be required to pay only the amount that is justly due and owing.
“In State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569 and City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, we recognized that a taxpayer was entitled to a relief when by a deliberate and arbitrary preconceived plan of taxing authorities large amounts of property, owned by others, was omitted from the tax rolls. Once such a plan of taxation is put into effect, the taxpayer must assume the onerous burden of proving substantial injury, that is, that his taxes, by virtue of the omission, are excessive or substantially higher than they would have been if the omitted property had been on the rolls. City of Arlington v. Cannon, supra. It is thus that he may establish that his taxes are ‘within themselves excessive’ within the rule laid down in Sam Bassett Lumber Co. v. City of Houston, Tex.Civ.App., 194 S.W.2d 114, 117-118, and approved by this court in the same case. 145 Tex. 492, 198 S.W.2d 879-880. It is only thus that he may secure his constitutional right to be taxed on an equal and uniform basis with others.”

See City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414 as to failure to receive injunction to prevent a taxing authority from putting such plan into effect.

We do not believe under this record the trial court could do other than deny appellants’ application for temporary injunction. We have carefully considered all of appellants’ points of error and overrule all of them.

Judgment of the trial court is affirmed.

CHAPMAN, J., not participating.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Wylie E. CASTEEL et al., Appellants, v. Thomas C. GUNNING, Jr., et al., Appellees.
    No. 5767.
    Court of Civil Appeals of Texas. El Paso.
    March 16, 1966.
    Rehearing Denied April 6, 1966.

      Potash, Cameron, Bernat & Studdard, Peticolas, Luscombe & Stephens, El Paso, for appellants.
    Lipscomb, Fisk & Cox, Scott, Hulse, Marshall & Feuille, James L. Gallagher and George W. Finger, El Paso, foP appellees.
   PER CURIAM.

In the year 1913 Mr. Wylie E. Casteel and Mr. Thomas C. Gunning, Sr. initiated a retail drug business which they owned and controlled as equal partners. As time went by, they expanded and established a number of other drug stores. There was a corporation formed and the stock was equally divided between Mr. Casteel and Mr. Gunning. Thereafter, they made some stock available to the employees of the corporation. They also created two additional corporations to manage the real estate used or owned by the drug stores. Somewhere in the 1930’s R. M. Wiggs, Jr. became an employee and eventually acquired stock in all three corporations, and was President of the company known as Gunning-Casteel, Inc. (the drug company). Mr. Wiggs died suddenly and unexpectedly on November 22, 1963. At the time of his death he owned 80 shares of stock in Gunning-Casteel & Wiggs, Inc., and S shares of stock in Gunning-Casteel Realty Corporation. These were the two corporations set up to manage and handle the real estate. Mr. Wiggs also acquired 394 shares of stock in the Gunning-Casteel, Inc. corporation, of which he was President.

After the death of Mr. Wiggs, the question of his stock apparently began to be a matter of concern to the Casteel and the Gunning families, as well as some of the employees and stockholders, and at one time Mr. Randolph Delk is alleged to have tried to sell the Wiggs stock to Tom Gunning, Jr., Mrs. T. C. Gunning, Sr., and to a complete stranger named Mr. Bone, and to Mr. Casteel. Mr. Gunning, Sr. had passed away leaving his son and widow, Mrs. T. C. Gunning, Sr., in possession of the Gunning stock. His death preceded that of Mr. Wiggs.

Mr. Wiggs had executed a will some time prior to his death. Mrs. Dorothy Wiggs survived her husband and was in ownership and control of half of the stock owned by her husband. The State National Bank of El Paso, as Executor of the Estate, controlled the other half. Hereafter, all of the stock owned by Mr. Wiggs at his death will be referred to as “Wiggs stock”, as that is the way in which it is described in certain documents to be discussed hereafter. In other words, the term “Wiggs stock” means both that held by Dorothy Wiggs and by The State National Bank, Executor.

It is alleged that Mrs. Wiggs had authorized Mr. Delk to represent her in the sale of her stock. We have not found in the record any evidence that Mr. Delk had any power of attorney from either the Bank or Mrs. Wiggs, or any authority or power to close a deal for the stock or sign anyone’s name to any instrument transferring stock.

In the course of events the record indicates that Mr. Delk contacted Mr. Casteel, and it is alleged that they agreed on a transaction whereby Mr. Casteel would buy the Wiggs stock, and it is alleged that they “shook hands” on the deal. This was stated to have taken place February 1, 1964 and, as stated in the brief submitted by Mr. Casteel, he brought this suit to enforce this contract which he states was consummated between himself and Mr. Delk. On February 3rd Mr. Delk took a purchase contract to Mr. Casteel’s office and accepted a check as down payment. This contract apparently was never executed or carried out, nor was the check cashed; so we must presume that Mr. Casteel relies largely on the oral agreement made two days before.

On February 26th appellant (who was plaintiff below) W. E. Casteel, and appel-lees (defendants below) Thomas C. Gunning, Jr. and Mrs. Tom C. Gunning, Sr., each executed separate but identical contracts or offers to buy the Wiggs stock, with and/or to appellees Mrs. Dorothy P. Wiggs and The State National Bank of El Paso, Executor of the Estate of R. Martin Wiggs, Jr., Deceased. These instruments submitted identical offers to purchase the Wiggs stock in the three Gunning-Casteel companies. Mrs. Dorothy Wiggs signed both documents, but the Bank did not. It was set forth in each instrument that the sellers of the stock retained the unencumbered right to determine if either of said above-described offers would be accepted by them. Then, on April 10, 1964, pursuant apparently to said contract and/or offer The State National Bank of El Paso as Executor and Trustee under the Will of R. M. Wiggs, Jr., Deceased, and Mrs. Dorothy Wiggs, entered into a contract of sale with Tom C. Gunning, Jr., and Mrs. T. C. Gunning, Sr. It is alleged that the sale was consummated in accordance with such contract and/or offer.

Thereafter, Wylie E. Casteel, appellant, instituted suit against appellees seeking, among other things, to enforce the oral agreement of February 1st, which he maintains was entered into between Mr. Delk and himself, alleging that Mr. Delk was the agent for Dorothy Wiggs and the Bank. Alternatively, appellant claims that the sale of the Wiggs stock to the Gunnings was in violation of certain provisions of the bylaws, as well as claiming a constructive trust to five shares of stock in one of the realty corporations.

Appellant-intervenors are employee stockholders in only the drug company. Their position is that the sale of stock in said drug company, as set forth above, was void and ineffective because of deficiencies in the stock certificates, and that they were not properly transferred on the books of the company, and was in violation of certain by-laws of the company.

The appellees have defended on the ground that appellants are attempting to vary the terms of the written contract or offer dated February 26, 1964 by parol evidence and evidence of a prior parol contract. They also maintain that neither Mrs. Wiggs nor The State National Bank would or did delegate or grant any authority to Mr. Delk to enter into a contract or sale binding either Mrs. Wiggs or the Bank, but that his authority was only to find a buyer. Appellees also maintain that the by-law provisions did not prohibit or purport to prohibit the sale of such stock between stockholders, and that there existed no constructive trust.

The trial court sustained appellees’ special exceptions relating to a constructive trust. The said court also sustained appel-lees’ motion to dismiss relating to the bylaw provisions asserted by appellant and intervenors; and so the trial was pretty much confined to matters pertaining to the oral contract alleged to have been consummated between Mr. Delk and Mr. Casteel. Finally, the trial court, after hearing considerable testimony, granted the ap-pellees’ motion for instructed verdict. It must be constantly borne in mind that neither Mrs. Wiggs nor Mr. Delk appear to have testified, as evidenced by the Statement of Facts.

For the purpose of clarity and better understanding of this controversy, we include a copy of the February 26, 1964 contract. There were two of these contracts, identical in every respect, one of which was executed by appellant Casteel and the other by appellees:

“CONTRACT
“THIS CONTRACT entered into by and between Mrs. T. C. Gunning, Sr. and T. C. Gunning, Jr., for themselves and/or undisclosed principals, designated herein as GUNNING, and WIGGS INVESTMENT CO., INC., MRS. DOROTHY P. WIGGS and THE STATE NATIONAL BANK OF EL PASO, Executor of the ESTATE OF R. MARTIN WIGGS, JR., DECEASED, herein designated collectively as WIGGS,
“WITNESSETH THAT:
“WHEREAS, Gunning wishes to buy all of the stock held by Wiggs in GUNNING-CASTEEL, INC., GUNNING-CASTEEL REALTY CORPORATION, and GUNNING-CASTEEL & WIGGS, INC., and
“WHEREAS, Gunning wishes to sell all of the stock held in WIGGS. APPLIANCE COMPANY, INC., and
“WHEREAS, Wiggs wishes to sell the stock held by them and to buy the 145 shares of stock held by Gunning in WIGGS APPLIANCE COMPANY, INC., and
“WHEREAS, there is need to allow time for further study of the proposed disposition of the shares of GUNNING-CASTEEL CORPORATION held by Wiggs.
NOW, THEREFORE, in view of the mutual considerations involved, the parties hereto agree as follows:
“1. Gunning offers to buy for the. sum of EIGHTY - FIVE THOUSAND, FOUR HUNDRED, TWENTY-SEVEN DOLLARS AND EIGHT CENTS ($85,-427.08) the TEN (10) shares of GUNNING-CASTEEL, INC., common stock held by the ESTATE OF R. MARTIN WIGGS, JR., DECEASED, and the THREE HUNDRED AND EIDHTY-FOUR (384) shares of such stock owned by WIGGS INVESTMENT CO., INC.
“2. Gunning offers to buy the EIGHTY (80) shares of GUNNING-CASTEEL & WIGGS, INC., stock held by the said Estate for the sum of FIFTY-SIX THOUSAND, SEVEN HUNDRED EIGHTY-FIVE DOLLARS AND SIXTY CENTS ($56,785.60).
“3. Gunning offers to buy FIVE (5) shares of GUNNING - CASTEEL REALTY CORPORATION for the sum of SEVEN HUNDRED, FORTY-THREE DOLLARS AND FIFTY CENTS ($743.50).
“4. If Gunning’s offer is accepted under the terms hereof, Wiggs will buy ONE HUNDRED AND FORTY-FIVE (145) shares of WIGGS APPLIANCE COMPANY, INC., stock from Gunning for the sum of FORTY-THREE THOUSAND, SIX HUNDRED NINETY DOLLARS AND SEVENTY-FIVE CENTS ($43,695.75).
“5. Wiggs shall have the unencumbered right to determine if this offer shall be accepted by them.
“6. Wiggs will refrain from selling its stock described above for a period to and not earlier than March 16, 1964.
“7. Gunning will leave this offer open for a period to end not earlier than April 15, 1964.
“DONE THIS 26th day of February, 1964.

/s/ Mrs. T. C. Gunning, Sr._ Mrs. T. C. Gunning, Sr.

/s/ T. C. Gunning, Jr._ T. C. Gunning, Jr.

WIGGS INVESTMENT CO., INC.

By_ Dorothy P. Wiggs, President

THE STATE NATIONAL BANK OF EL PASO, EXECUTOR OF THE ESTATE OF R. MARTIN WIGGS, DECEASED

By _ Trust Officer

/s/ Dorothy P. Wiggs Mrs. Dorothy P. Wiggs”

We shall take up appellant Casteel’s points of error in the order in which they appear in his brief.

Subdivision A of appellant Cas-teel’s first point maintains that the trial court committed error in granting appellees’ motion for instructed verdict. It is true that where an instructed verdict has been rendered the reviewing court must take as true the material evidence offered by plaintiff, and indulge every reasonable inference in his favor in deciding the motion and determining if a fact issue has been properly raised. We think the court acted correctly here, because it appears from the record that appellants do not attack the written contract or offer of February 26, 1964. There appears to be no pleading, verified or otherwise, denying the execution of said document or stating that it was without consideration or that the consideration had failed in whole or in part. (Rule 93, Texas Rules of Civil Procedure). Neither did plaintiff Casteel, in the court below, contend that he was induced to execute the said document by fraud, accident or mistake, or that it was incomplete or not intended as a complete agreement between the parties. He appears to make such contentions for the first time on appeal. The record indicates that plaintiff did not claim any defense to the February 26, 1964 written contract, but rather attempts to alter, vary or contradict it by asserting an alleged oral agreement of February 1, 1964, and that the written document was not sufficiently or properly executed. The defendants in the trial court asserted, as one ground for their motion asking for an instructed verdict, that the parol evidence rule prevented plaintiff from trying to alter, vary or contradict the written contract of February 26th. We have examined these contracts and find that they are identical offers by Mr. Casteel and the Gunnings to purchase the Wiggs stock. It will be noticed that these offers contained, among other things as mutual consideration, an agreement by the sellers of the Wiggs stock not to sell the stock before March 16, 1964, and the further agreement by the purchasers to leave said offers open until April 15, 1964. It was also stated by both offerors that Wiggs (meaning the sellers) shall have the unencumbered right to determine if the offer shall be accepted by them. As stated before, sellers did not sell until April 10th, at which time they sold to the Gunnings. It must also be remembered that the written contract was signed by Mr. Casteel some three weeks or more after he had entered into what he now claims to have been an oral agreement with reference to the purchase of the stock. There is no mention in this written offer or contract of February 26th of any prior agreement, oral or otherwise. The testimony in the Statement of Facts even indicates that plaintiff Casteel felt that the written contract replaced the old contract. Also, even if we take the statement of Mr. Casteel literally, wherein he attempts to maintain that the February 26th offer was merely executed because there had been a change in the book value of the stock, still we are confronted with the realization that if it is or was only (and the terms of same certainly do not so indicate) a change of price agreement, still it must be described as a new contract or offer which would necessarily cancel out or merge prior agreements. Then, too, the oral contract is stated to have been made by Mr. Delk as agent for Mrs. Wiggs and Mr. Casteel. One written contract and/or offer of February 26th was signed by Mr. Casteel and Mrs. Wiggs, the other by appellees and Mrs. Wiggs, and, in our opinion, each is complete and unambiguous. It has long been established that the parol evidence rule is used to prevent extrinsic or oral testimony or evidence to vary or contradict a written contract, unless said contract is ambiguous or there is fraud, accident or mistake present. Under these circumstances, parol or extrinsic evidence is permitted so as to get at the intention of the contracting parties and determine what they really agreed to do. Further, the parol evidence rule has long been described as a rule of substantive law rather than one of evidence alone. Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184; Kingsbery v. Phillips Petroleum Company, 315 S.W.2d 561 (Tex.Civ.App., n. r. e.); 4 Williston on Contracts (3d ed., 1961) 631; 20 Am.Jur., Evidence, § 1100; 32A C.J.S. Evidence § 851. Lastly, this court, in Miami Petroleum Company v. Neal, 333 S.W.2d 876 (n. r. e.), stated clearly that the parol evidence rule in Texas is a rule of substantive law. In 2 McCormick & Ray, Texas Law of Evidence, 2d ed., § 1603, it is pointed out that the business world demands that written contracts be guarded against claims of inconsistent oral agreements. Of course, as the various texts and cases indicate, written instruments would soon become of little value in the business world if they could be varied, controlled or superseded by improper parol evidence. This portion of appellant Casteel’s first point is therefore overruled.

In subdivision B of Point 1, appellant Casteel maintains that the alleged oral contract of February 1 and/or February 3, 1964 is binding and enforcible. We feel that this point must also be overruled because it is not controverted that the agreement or deal, or whatever it was, of February 1 and/or 3rd was a matter between Mr. Delk and Mr. Casteel only. Nowhere does it appear in the record that Mr. Delk had oral or written authority from either Mrs. Wiggs or The State National Bank to bind them to any agreement, transfer any stock or in any way close a deal for them. On the contrary, the record reveals that he was simply a broker trying to bring buyers and sellers to an agreement that could be consummated, but that he lacked the power to consummate it himself on behalf of any or all of the sellers. This is further evident from the record and purchase where it appears that he tried to sell or get an offer from various people for the Wiggs stock. Therefore, whatever transaction took place on February 1st or 3rd, it could not have been binding on any of the defendants here because there is no evidence whatever that they conferred such authority on Mr. Delk. For example, no power of attorney is alleged. Further, it is clear from the record that Mr. Casteel signed a written offer of February 26th without making any complaint at that time that it was incomplete or unsatisfactory. In fact he seems to raise these questions only on appeal.

There is no evidence, either, of ratification of any agreement made between Mr. Delk and Mr. Casteel. In fact, the record seems to indicate that the sellers of the Wiggs stock neither knew of the agreement, if any, or its terms, and there is no evidence of any act of ratification. On the contrary, the February 26th offer would, to us, rule such out in any event, as it was signed willingly and voluntarily by Mr. Casteel, and the check mentioned as having been given to Mr. Delk by Mr. Casteel was never cashed by anyone. Further, it is extremely doubtful that the Bank would or could delegate to any person outside the Bank authority to bind the Bank as Executor of the Estate of Mr. Wiggs. There is no evidence that the Bank ever delegated any authority to bind it or consummate any deal with reference to this stock. We hold, therefore, that there is no evidence of ratification of any agreement or agreements alleged to have been entered into by the parties before February 26, 1964.

Appellant Casteel also maintains that the February 26th written contract is incomplete because it was not signed by every party thereto, and that he (Mr. Cas-teel) did not intend the contract to be a completed agreement. Again, we do not believe this point has sufficient merit to prevent or destroy the application of the parol evidence rule. The record shows that all parties accepted the agreement, and although the Bank as Executor did not sign the February 26th document, it did later on, in accordance with the terms of the February 26th document, sell the stock controlled by it as Executor. We again mention that plaintiff signed the agreement, and complains of its inadequacy only on this appeal. The record shows that plaintiff has never contended that the February 26th agreement was ambiguous. Further exploring the parol evidence rule, we find discussions in 4 Williston on Contracts (3d ed., 1961) § 633; and in 32A C.J.S. Evidence § 902, p. 269, it is stated:

“It is of course necessary to the application of the parol evidence rule to contracts that there shall be a complete written contract between the parties * *; but it is not necessary that the contract be in any particular form, or that it all be contained in one paper, or signed by both parties; and a writing evidencing the whole of an agreement between the parties which has been delivered, accepted, and under which business has been transacted, cannot be varied by parol, even though it is not signed; * *

It has been held that a presumption exists that a written document is intended to be a complete agreement of the parties unless, on its face, the instrument itself rebuts the presumption. Guarantee Life Ins. Co. v. Davidson, 234 S.W. 883 (Tex.Com.App., 1921). We have before us clear and unambiguous contracts or offers, identical in form and content, one of which is signed by Mr. Casteel, plaintiff-appellant, and Mrs. Dorothy Wiggs, owner of part of the stock. Further, it must be taken into consideration that the said offer of the Gunnings was later consummated by Mrs. Wiggs, the Gun-nings and the Executor-Bank.

We agree with appellees’ position that the execution of the written contract by Mr. Casteel canceled out any previous agreements, oral, legal or otherwise, by waiver and abandonment as well as merger, and there are probably elements of estoppel also present. This is true because the February 26th offer or contract, signed by Mr. Casteel, was complete, unambiguous and conclusive of the matters contained therein, and does not mention or refer to any prior oral agreement or price changes. Plaintiff, as we have said before, neither pleaded nor offered evidence of fraud or accident or mistake during the trial.

If the February 26th written contract should not be binding, then, and only then, are we bound to consider whether the parties to the February 1st and/or 3rd contract had authority to consummate or close the deal. We have discussed this matter thoroughly and repeat that the record is void of any evidence of delegation of authority or power of attorney to Mr. Delk so as to enable him to consummate or close any deal with reference to any of the stock herein involved. It is not denied that he had authority to represent Mrs. Wiggs, but he had no authority to bind either Mrs. Wiggs or the Bank to any sale or transfer of the stock. With reference to the Executor (the Bank) there is no testimony from either the Bank or Mr. Delk, and no written evidence, of any authority. As a matter of fact there are cases holding that an independent executor cannot delegate its discretionary powers. In fact, there is no evidence that plaintiff or intervenors ever contacted the Executor-Bank.

For the reasons set forth above there could not have been a jury question, because the matter in controversy here is not one of fact, but of law; there is no evidence that, on February 1st or 3rd, or at any time, Mr. Delk had any delegated authority from anyone to bind anybody, even if such authority could have been given him by the Executor-Bank; and finally, the contract of February 26th is, in our opinion, clear, unambiguous, and terminates and concludes any prior negotiations that may have been alleged. This contract or offer was carried out and the sale of the stock eventually made to appellees. We do not see any occasion for the use of a jury, and we bear in mind that we deal here with a complaint against the action of the trial court in granting an instructed verdict. But even granting and considering all the rights that, under these circumstances, accrue to appellants, we believe and hold that the trial court acted properly in granting such motion. In reaching this conclusion we have carefully resolved every doubt and construction of the testimony in favor of the appellant Cas-teel, and taken as true his material testimony.

In conclusion, we feel that appellant’s first point, in all its subdivisions, must be overruled, as construing every part of the material record in favor of appellant we are still met with nothing but legal problems, which we feel we have sufficiently discussed. We believe that the February 26th contract and subsequent contracts were legal and effective. As such, they wiped out any prior dealings offered by and through parol evidence. Again it must be remembered that any prior agreements alleged or maintained were entered into by Mr. Casteel and a man with no authority to do other than represent the parties he claims to have represented, but who was totally without authority by power of attorney, delegation of authority, or otherwise, to bind anybody or close any deals. Therefore there was, in our opinion, no jury question present and we feel, too, that the trial court acted correctly in granting the motion for instructed verdict. Appellant’s first point and all its subdivisions are therefore overruled.

In his second point appellant Casteel urges that the court erred in granting the motion to dismiss presented by defendant Velda W. Gunning, and in sustaining the special exception of Thomas C. Gunning, Jr., both of which relate to Court Four of plaintiff’s second amended original petition detailing the by-law restrictions on the sale of stock. Appellant contends that the court was not authorized to (as he describes it) summarily dispose of this matter without giving plaintiff his day in court; also, that the by-laws require that the stock must first be offered to the corporation or, if any of the provisions are ambiguous, the matter should be submitted to the jury, and that the by-law provisions constitute a contract between various shareholders of the corporation and are enf orcible as such; and lastly, that directors of the corporation, having knowledge of said restrictions, are in a fiduciary relationship to both the corporation and the other stockholders. We do not believe these points can be sustained for the following reasons.

In the first place, the first line of Article VII, entitled “Sale of Stock”, under section 1, states as follows: “No stock in this corporation shall ever be offered for sale to the public by any of the stockholders without said stockholder so desiring to sell having first offered said stock for sale to the corporation itself * * * ” (Emphasis supplied). It is immediately apparent that this provision applies to the sale of stock to the public by any stockholder. That is not the case here, as the stock herein involved was sold by and between stockholders only. We must agree with the contention of the appellees that the by-laws do not prohibit the sale of stock between stockholders and do not restrict the sale of stock to defendants, but that said provisions pertain only to sales of stock to outsiders — ■ strangers to the corporation; in other words, the public. Therefore, we believe and hold that the trial court was correct in the action taken. If it was intended to maintain an equal balance of power, we have found nothing in the by-laws to prevent a gift by any stockholder to anyone, except relatives, the by-laws dealing only with sale. As stated above, we believe this was an attempt through the by-laws to keep outsiders or the public out of the corporation, a problem which we do not confront in this lawsuit. These provisions discussed and disposed of above apply only to the two realty corporations and are identical in the by-laws of each corporation. In other words we feel, and so hold, that the trial court was correct in sustaining the motion and special exceptions regarding the realty corporation by-laws discussed above.

We pass now to the provisions of the by-laws of Gunning-Casteel, Inc., the drug corporation. Article VIII of said by-laws provides, among other things, that “If any stock in the corporation is offered for sale by any officer-stockholder, said stock shall first be offered for sale to the corporation itself * * * ” It is immediately apparent that section 2 of Article VIII specifically and carefully provides how an officer-stockholder can dispose of or offer his stock for sale. This is a clearly worded and specific provision and, we think, means exactly what it says. At the time of Mr. Wiggs’ death he owned in his own name ten shares of stock in the drug corporation, and Wiggs Investment Co., Inc. owned 384 shares of stock in said corporation. The 384 shares of stock are alleged to have been subsequently reissued March 4, 1964 by certificates 133-A and 134 — A, each for 192 shares of stock, the first certificate being issued to The State National Bank, Executor, and the second to Dorothy P. Wiggs. In discussing this matter, it must be remembered that restrictions on a stockholder’s right to dispose of his stock must be strictly construed. There is no indication in this record that at the time of the sale, the Wiggs Investment Company was ever an officer-stockholder. The stocks were reissued by the above described certificates, and there is no evidence or proof that either the Bank or Mrs. Wiggs was an officer-stockholder in the corporation. Again we do not believe this provision is ambiguous, nor were any of the provisions here in controversy, in our opinion, meaningless or ambiguous. It is clearly set forth that an officer-stockholder must first offer his stock to the corporation itself and, if not accepted or purchased by said corporation, it may then, and only then, be offered to the public. All of these provisions, regarding both the two realty corporations and the drug corporation, must be construed as designed to protect the corporations against the intrusion of outsiders or the public. With reference to these provisions applying to sale of stock, these provisions must be construed in their entirety and meaning given to the words used therein. The by-laws of the drug corporation do not seem to prevent sales or transfers of stock within the company or among present stockholders. There are a number of cases from Texas and other jurisdictions that discuss this matter and construe these provisions as being designed to prevent the sale by a stockholder to outsiders who own no corporation stock. Kensinger v. McDavid, 380 S.W.2d 54 (Tex.Civ.App.); Pomilla v. Bumgardner, 326 S.W.2d 917 (Tex.Civ.App.). There are cases from other jurisdictions cited in the appellees’ brief also holding that provisions of this nature are intended to prevent the sale of stock to an outsider or non-stockholder in the corporation. We do not believe the trial court committed error in disposing of this matter by special exceptions and motions to dismiss, even though they might be construed as general in their application, or content. This would be a procedural matter, and apparently did not concern the trial court and, if there was error, we deem it to be harmless.

For the reasons set forth above we believe that appellant Casteel’s Point 2 and its subdivisions must be overruled, and again we call attention to the fact that the identical by-laws of the two realty corporations start out with the sentence quoted above to the effect that “no stock in the corporation shall ever be offered for sale to the public * * * ” (with the conditions set forth); and the by-laws of the drug corporation, Gunning-Casteel, Inc., provide for the manner in which stock may be offered for sale by an officer-stockholder, and again the conditions necessary are subsequently set forth. Therefore, we do not believe the sale made to the defendants violated any of the by-laws, and we agree with the position of appellees that these by-laws were primarily intended to prevent the sale of stock in any of the three corporations to an outsider until certain provisions had been fulfilled. Finally, the bylaws of any of the three corporations do not prohibit or prevent the sale or transfer of stock between stockholders of the various corporations. Appellants’ Point 2 and its subdivisions are therefore overruled.

Appellants’ Point 3 claims that the trial court erred in sustaining defendants’ special exceptions to plaintiffs’ cause of action relating to a constructive trust for five shares of stock in Gunning-Casteel Realty Corporation. We feel this point must also be overruled. There is no memorandum or written agreement in the record, the only evidence being the oral testimony of Mr. Casteel that he gave the five shares of stock to Mr. Wiggs in 1950, and Mr. Casteel stated that this was done because he had an agreement between Mr. Gunning and himself that they wanted to avoid a possible deadlock, and so felt that a third party should have a few shares, rather than all of the shares being equally distributed or divided between Mr. Casteel and Mr. Gunning. Mr. Casteel also testified that Mr. Gunning never transferred any five shares. This would seem more like a breach of contract between the two partners than a constructive trust. In the first place, Mr. Casteel’s gift of five shares in the realty corporation was made in 1950, and apparently nothing else was ever done before Mr. Gunning’s death some twelve or thirteen years later. The record does not show that Mr. Casteel objected to or protested this state of affairs. Also, it appears to us that this transaction, as related by Mr. Casteel, violates Article 3716, Vernon’s Ann.Tex.Civ.St., commonly known as the “Dead Man’s Statute”. In any event, all we have is the fact that Mr. Wiggs had the five shares of stock, with only Mr. Cas-teel’s proffered testimony, which we feel was probably inadmissible. Appellant Cas-teel did try to introduce a note found in Mr. Wiggs’ possessions after his death. This note is headed: “Suggestions About My Estate”, and is addressed “Dorothy”, and stated with reference to the five shares of realty corporation stock as follows: “Sell Gunning-Casteel Realty Corporation stock to Mr. Casteel, it should be worth about $1,000.00”. This note was undated and was no part of the will of R. M. Wiggs, deceased, and we think was properly excluded by the trial court. In any event, we think it has little or no legal effect, and that, as the description above set forth implies, it was only a suggestion. But had it been admitted, it does not seem to comport with the idea that the five shares were a gift, because the note suggests to the widow that the five shares be “sold” to Mr. Cas-teel. If this is true, it sounds a great deal more like something personally owned than something held by virtue of a constructive trust. It is suggested, and we think properly so, by appellees that the five shares of stock were simply a part of the estate of R. Martin Wiggs rather than a separate entity bearing the title of constructive trust. The disposition of the Wiggs estate is governed by the now probated will of R. Martin Wiggs, Jr. It is elementary that words of this nature, that are not within the will, called “suggestions” or “requests”, are only that and are treated as precatory rather than mandatory statements, and are not binding. The State National Bank was Executor of this probated will and, as such, in our opinion, had control of part of the five shares of stock. Concluding, we do not find the elements necessary to sustain appellants’ position that Mr. Wiggs held the five shares of stock by virtue of a constructive trust. The necessary provisions and elements and actions are just not present. This point is accordingly overruled.

In Point 4 appellants complain of the action of the trial court in granting a motion in limine filed by defendant Velda Gunning, whereby plaintiff was instructed not to refer to the note (described above) left by Mr. R. Martin Wiggs, Jr., or the facts relating thereto. We believe that our discussion of the preceding point substantially disposes of this point. However, plaintiff claims that the procedure of the trial court was also wrong, but we do not find that the trial court committed procedural error in granting this motion to exclude what the trial court felt, as we do, was improper evidence, and the discussion thereof. It must be borne in mind that the cause of action as stated was primarily one brought by the plaintiff based on an alleged oral contract of February 1st or 3rd, 1964. Also, it is stated in his brief that the corporation was formed in 1950 and the stock issued as follows: “ * * * R. M. Wiggs, Jr., 5 shares”. Then the brief goes on to state that based on a promise and agreement, Mr. Casteel transferred five shares of his stock to Mr. Wiggs, which was without consideration from Mr. Wiggs, and constituted a gift. Lastly, there is no evidence, implied or expressed, that Mr. Wiggs was ever to resell the stock to Mr. Casteel, other than the inadmissible note found after his death. Mr. Casteel’s own testimony states that the stock was given to Mr. Wiggs as the result of an agreement between Mr. Casteel and Mr. Gunning. There is no evidence that Mr. and/or Mrs. Wiggs agreed to accept the stock as a constructive trust. As a matter of fact, the indications are to the contrary, because Mr. Wiggs left a note suggesting that his survivor sell the stock to Mr. Casteel. Lastly, there is no contention that the will of Mr. Wiggs was ambiguous or incomplete, so as to create a need for said note in order to explain or complete the will.

The contention that the motion or objection therein is too general does not, in our opinion, have sufficient merit. It sets out several grounds such as that, the note having been ruled inadmissible, it would be highly inflammatory and prejudicial, etc., and the motion was granted rather than overruled. There are authorities holding that if a motion granted by the court is considered to be general, it is presumed that some valid ground was apparent to the court. Wigmore on Evidence (2d Ed.) § 18, page 184; McCormick & Ray, Texas Law of Evidence, § 25, page 24. This point is overruled.

In Point 5 appellant takes exception to the action of the trial court in sustaining a number of special exceptions to plaintiff’s pleadings, claiming that this action had the cumulative effect of depriving plaintiff of the right to properly and clearly describe his cause of action. We have examined this matter and do not find that the trial court was in error in sustaining exceptions to various bits of language from the pleading of the plaintiff. This point is overruled.

We now pass to the points of error presented by the intervenors. On September 21, 1964, the trial court held a hearing upon special exceptions filed by the parties. It is alleged that there were no exceptions leveled against intervenors’ first amended original petition in intervention sustained by the court. At this same hearing the trial court set the case for trial on October 26th. The court further directed plaintiff and in-tervenors to file any amended pleadings on or before October 5, 1964, and the defendants to file their amended pleadings on or before October 14th. The intervenors did not amend their pleadings, claiming that since no exception had been sustained against them, they did not have to do so, and therefore filed no amended or supplemental pleadings before the date set as a deadline by the trial court. On October 13th Tom C. Gunning, Jr., The State National Bank, and Dorothy Wiggs excepted to intervenors’ amended petition, alleging that it did not state a cause of action. All defendants on this same date filed an un-sworn pleading described as “Motion to Strike and Dismiss Intervenors’ First Amended Original Petition in Intervention”. On October 14th defendant Velda Gunning excepted to the petition of the in-tervenors. Intervenors filed their second amended original petition October 16, 1964, and on October 21st all defendants filed a motion to strike said petition because of late filing It is stated that this motion did not contain any statement that the defendants were surprised by such second petition of intervenors. Then intervenors and defendants filed supplemental answers. On October 26th, which was the date of trial, the trial court dismissed intervenors’ second amended original petition for late filing, and also dismissed intervenors’ supplemental petition and refused to grant interve-nors leave to file a trial amendment setting up new matters. The trial court then dismissed intervenors’ first amended original petition, based on the motion to strike and dismiss filed by defendants.

Intervenors contend that they had a mandatory right to amend their pleadings in order to meet the defendants’ exceptions and motion to strike, claiming that the court erred in its action and urging that appellees did not claim surprise. In these pleadings the intervenors took the same position as plaintiff, claiming violation of the by-laws and urging the enforcement in accordance with their interpretation. They also sought to plead that there were deficiencies and irregularities in the attempted transfers of stock, in that the stock certificates were not properly executed and were not properly transferred on the books of the company and did not contain allegedly necessary restrictions, and that by virtue of his position as an officer and director of the corporation, Thomas C. Gunning, Jr. had knowledge of all these things and that, therefore, the stock held by him should be designated as held under a constructive trust, and that he should be described as a constructive trustee for the corporation.

The appellees maintain that on September 21, 1964 the trial court considered all pending matters, sustained certain exceptions to alleged by-law violations made by plaintiff (which were similar to those asserted by intervenors) and pointed out that the trial court gave intervenors until October 5th to file any further pleadings or amendments. The intervenors did not file any further pleadings or amendments within the time specified, maintaining that they did not have to do so because no exceptions had been sustained against intervenors’ pleadings. Rule 166, T.R.C.P., authorizes the trial judge to set the time within which amendments to pleadings will be allowed, and states that when the trial judge issues such order, it shall control unless modified by the court. Intervenors rely upon and discuss Rule 63, T.R.C.P., and cite authorities which they claim support their position.

We believe that the five points of error presented by intervenors must be overruled. In support thereof appellees point out the language used by our Supreme Court in the case of Provident Life & Accident Ins. Co. v. Hazlitt, 147 Tex. 426, 216 S.W.2d 805. The court in that case seems to give emphasis to that portion of Rule 166 providing that the trial court’s orders (pre-trial) are controlling. This matter is commented on by Professor E. Wayne Thode, 35 T.L.R., page 381 et seq., where he states that in his opinion the pre-trial order under Rule 166 must take precedence over Rule 63, and cites the Hazlitt case (supra) as authority. Appellees point out that after the ruling of the Supreme Court in the Hazlitt case, Rules 63 and 166 were amended, and in another and later article Professor E. Wayne Thode (41 T.L.R. 545 at page 551) states as follows:

“Rules 63 and 166 were amended, effective January 1, 1961, to make it quite clear that after a pretrial order is entered, amendments of the pleadings can be made only pursuant to the pretrial order, or with leave of court. This conclusively eliminated the contention that a party was as a matter of right entitled to amend his pleadings freely until within seven days of trial, thereby possibly rendering nugatory a previous pretrial conference and its resulting order.”

The same interpretation is found under Comments to Rule 166, found in Franki’s Vernon’s Annotated Texas Rules, 1964, Pocket Part, page 158 (now found on pages 180, 181, 182 of the 1965 Pocket Parts). Here, the author states as follows, at page 182:

“Now, under Rule 166 the trial court may not only specify by pre-trial order what amendments may be made but also ‘the time within which same may be filed.’ The final date for filing amendments as fixed by the order may be more than seven days before trial, and thereafter, under Rule 63 as now changed, amendments may be made only with leave of court. In other words, in this respect the conflict or apparent conflict between Rule 63 and Rule 166 has been eliminated. While the right to file amended pleadings up to the date of the pre-trial conference has not been denied, the hand of the trial judge in limiting amendments by means of a pre-trial order has been strengthened. He may cut off the filing of amended pleadings without leave of court at a date more than seven days before trial, and thus avoid the necessity for postponement of trial in most cases on account of belated amendments and exceptions to pleadings of a material and significant character.”

It should be recalled at this point that the matters contained in the intervenors’ pleadings related to the same by-laws controversy as urged by the plaintiff, and have been disposed of by both the trial court and this court. The remainder of intervenors’ pleadings, as stated above, apply to technical difficulties which could not, in our opinion, afford intervenors any right of action, as they were not shown to be harmful to inter-venors, were not shown to be harmful to the corporation, and constituted a matter between buyers and sellers.

It is also urged by intervenors that the motion to strike and dismiss was a general demurrer and was not sufficient to comply with the summary judgment procedure. It has been held that the appellate court will not and should not reverse the dismissal of a cause of action because of technical procedural irregularities where the pleadings dismissed did not state any cause of action; Kelly v. Wright, 144 Tex. 114, 188 S.W.2d 983, the court there saying that it would be a futile and useless procedure to reverse the judgment of the trial court, even though the exceptions were too general and constituted a general demurrer, because it appeared from the pleadings that the petitioners could not, in any case, allege or present a valid cause of action. See also Presley v. City of Odessa, 263 S.W.2d 293 (Tex.Civ.App.); Anthony v. Creech, 303 S.W.2d 414 (Tex.Civ.App.). We have examined intervenors’ pleadings and proffered pleadings and cannot discern where they asserted or could assert any cause of action in accordance with our previous discussion of the matter. Their allegation with reference to the by-laws is the same as that urged by the plaintiff and presents no cause of action. With respect to their objection to the manner of the transfer of stock and any deficiencies therein, intervenors have not explained, and it does not appear, how such could or would be of any interest or harm to the intervenors. The intervenors do not assert in what manner a change in the number of shares of stock held by one family would be of any harm to either the intervenors or the corporation. In-tervenors urge, also, that certain stock certificates were not properly endorsed; that the transfer of certain shares was not recorded on the stock transfer books of the corporation; that certain stock certificates were not signed by the President of the corporation, although not claiming that there was any duplication of issue or dilution of the value of the stock. It would seem that any or all of these alleged irregularities could not result in any harm to in-tervenors, and were matters of concern primarily between the buyers and the sellers. Intervenors’ points are all overruled.

During the pendency of this appeal, ten of the original intervenors filed their application to dismiss this appeal as far as they are concerned. This application is not contested and therefore is granted, but does not, of course, affect the appeal of the three remaining intervenors.

Appellants’ points are all overruled, and the decision of the trial court is affirmed.

CLAYTON, J., not sitting.


author: DUNAGAN, Chief Justice.

text:
    N. A. ANDRETTA, Appellant, v. W. E. WEST et al., Appellees.
    No. 167.
    Court of Civil Appeals of Texas. Tyler.
    April 28, 1966.
    Rehearing Denied May 12, 1966.

      Edward Kliewer, Jr., Dallas, for appellant.
    Gordon R. Wynne, Wynne & Wynne, Wills Point, for appellees.
   DUNAGAN, Chief Justice.

The appellant originally instituted this suit against the Superior Oil Company and W. E. West and wife in the 114th District Court of Smith County, Texas, alleging that he was the owner of a one-fourth non-participating royalty interest in a 100 acre tract owned by the Wests, which was then under an oil, gas and mineral lease to Superior Oil Company; and that by virtue of a lieu royalty agreement entered into' between Superior and West, Superior had paid West certain monies as royalty and that appellees and Superior were jointly and severally liable to him for one-fourth proportionate part of said monies.

This action was brought in the nature of a suit for debt as a result of the monies paid to the Wests by Superior by virtue of the West-Superior agreement.

The Wests filed their pleas of privilege to be sued in Van Zandt County, the county of their residence. The Wests’ pleas of privilege were sustained and such judgment on appeal was affirmed. Andretta v. West, 318 S.W.2d 768, (Tex.Civ.App.) 1958, writ refused, n. r. e. After transfer to Van Zandt County, the court entered an interlocutory decree in favor of Superior Oil Company, following the opinion of the Court of Civil Appeals in the case of An-dretta v. West, supra, that plaintiff could not recover against Superior since he had failed to notify Superior of his royalty interest in accordance with the terms of the original lease under which he purchased.

W. E. West and wife owned 100 acres of land in fee. In 1942, they made an oil and gas lease for a ten-year primary term, which Superior later acquired. Subsequent to the lease, the Wests sold a one-fourth non-participating royalty interest in 1943 and appellant later acquired this non-participating interest.

Trial of this case was before the court without the aid of a jury. Judgment was rendered for appellees in which the interlocutory decree theretofore entered on behalf of Superior was made a part of the final judgment.

Appellant, who was plaintiff below, sued W. E. West and wife, Mrs. Willie B. West, and the Superior Oil Company to recover one-fourth of certain payments made by Superior to the Wests in accordance with the West-Superior agreement. Appellant in his brief states that: “(In view of the holding in the earlier appeal of this case involving venue, Andretta v. West, 318 S.W.2d 768, Tex.Civ.App., 1958, writ ref., n. r. e. on the question of Superior’s liability, Appellant hereby abandons his suit against The Superior Oil Company. * * * ” Accordingly, the reference in this opinion to “ap-pellees” means only the Wests. The trial court held (1) that the payments in question did not constitute royalty, and (2) that even if such payments were royalty, appellant’s claim is barred by the two-year statute of limitation.

All proceedings in this cause have been timely and regular, and this appeal is properly before this court for review.

Pursuant to appellant’s request therefor, the trial court made and filed his findings of fact and conclusions of law. The facts in this case are undisputed, therefore it would serve no useful purpose to include said findings of fact and conclusions of law in this opinion.

Appellant, as grounds for his appeal, presents four Points of Error:

“POINT 1.
“The trial court erroneously held that Appellant, the owner of a ¼⅛ interest in the royalty in the West 100 acre tract, was not entitled to recover from Appel-lees, the Wests, of the payments made by The Superior Oil Company to the Wests under the West-Superior Agreement.
“POINT 2.
“The trial court erroneously held that the payments by The Superior Oil Company to Appellees, the Wests, under the West-Superior Agreement did not constitute royalty.
“POINT 3.
“The trial court erroneously held that the payments by The Superior Oil Company to Appellees, the Wests, under the West-Superior Agreement were in the nature of delay rentals and not royalties.
“POINT 4.
“The trial court erroneously held that Appellant’s cause of action against Ap-pellees, the Wests, is barred by the two-year statute of limitation.”

Appellees, owners of fee simple title to the IDO acre tract of land, on September 4, 1942, executed to George W. Lack an oil, gas and mineral lease thereon. This lease, drawn in routine form, provided for a ten-year primary term and a one-eighth royalty interest. The lease was assigned to Superior Oil Company on September 18, 1942, and will herein be referred to as the “Superior lease.”

In answer to requests for admissions, ap-pellees admitted that the Superior lease continued in full force and effect from its date of execution until released by Superior in July of 1957.

No oil or gas has been produced from the 100 acres and there is nothing in the record to indicate that it was capable of producing either oil or gas.

On August 31, 1944, during the primary term of the lease, W. E. West and the Superior entered into an agreement which is the subject of this suit. Appellant was not a party to the agreement, although he had, as shown by the admissions, demanded of Superior that some action be taken under the lease for development and he was advised by Superior that it contemplated no action and offered to farm out the lease to him. It is shown by the testimony of the appellant that he had been engaged in the oil business since 1922 and was thoroughly familiar with the oil business.

The agreement between West and Superior, which we will hereafter refer to as the “West-Superior agreement” made August 31, 1944, was recorded in the deed records of Van Zandt County, Texas, on September 16,1944, and contains the following provisions:

«I
“That said Lessee (Superior) will pay lessor (Appellees) a lieu royalty in cash equivalent to one-eighth (⅛⅛) of the proceeds from the sale of all oil produced and sold from said Groves Well #1 (located on the adjoining tract), beginning with production on and after August 1, 1944, said payments to be based upon actual runs of oil from said well and paid to Lessor herein on or before the 20th day of the calendar month following the production thereof.
“II
“The said payments to Lessor shall be construed to be royalty payments made to Lessor under the terms of said lease.
“HI
“That in the event said Lessee shall begin operations for the drilling of a well for oil upon the lands herein above described and thereafter diligently prosecute drilling operations thereon, such operations shall be full performance of the terms of said lease and shall relieve Superior of the necessity of paying said lieu royalty to Lessor, based upon oil produced from said Groves well #1 on and after the first day on which such operations for drilling shall have been commenced by said Lessee upon the land above described.
“IV
“That anything herein to be contrary notwithstanding, Lessee shall have the right at any time to discontinue the payment of said lieu royalty by surrendering and releasing to said Lessor saiZ lease in its entirety, which surrender shall be effective immediately upon delivery of same in the United States Mail addressed to Lessor at Canton, Texas, registered, with postage fully prepaid.
“V
“In the event Lessee shall fail to pay Lessor said lieu, royalty and Lessee shall not have sent Lessor any such quitclaim deed nor commenced such said -operation for drilling a well for oil on said lease, the sai<? lease shall not terminate unless Lessor shall send Lessee at 400 Oil and Gas Building, Houston, Texas, written notice of default, thereof, and thereafter Lessee shall, during the period of thirty (30) days after receipt of such notice, either pay said lieu royalty or to begin operations for the drilling of a well for oil on said leased lands of Lessor, or release said lease to Lessor, as Lessee may elect.
“Insofar as the same may be applicable this Agreement is an amendment of said lease, effective for the sole purpose of maintaining saie lease in full force and effect during the performance of the agreements terms and conditions herein-above set forth, for the time and in the manner herein provided.”

Pursuant to the West-Superior agreement, Superior paid to appellees during the period from August 1, 1944, through May, 1957, the total sum of $27,978.16, none of which was paid to appellant by the appel-lees or Superior.

Appellant has grouped Points 1, 2 and 3 for discussion in his brief and we will likewise group these Points in disposing of same on this appeal.

Appellees have filed six Counter Points.

The West-Superior agreement very definitely states its object in the last paragraph thereof by saying:
“Insofar as the same may be applicable this Agreement is an amendment of said lease, effective for the sole purpose of maintaining saie lease in full force and effect during the performance of the agreements terms and conditions herein-above set forth, for the time and in the manner herein provided.”

We think the purpose of the agreement was to pay for the privilege of delaying drilling by Superior upon the land covered by their lease and to that extent applies as an amendment of Paragraph 4 of the oil, gas and mineral lease held by Superior at the time. The material parts of Paragraph 4 provide:

“If operations for the drilling of a well be not commenced on said land, or any unitized area hereunder on or before the 4th day of September, 1943, this lease shall terminate unless lessee on or before that date pays to the lessor a rental of Two Hundred Fifty and no/100 Dollars which payments shall cover the privilege of deferring of commencement of operations for the drilling of a well for twelve months from said date. In like manner and upon like payments during the primary term, the commencement of such operations may be furhter deferred for like periods of the same number of months successively. Such rental payments may be made to the lessor by lessee paying or tendering the same to lessor, * * * ”

Insofar as this record shows subsequent to the West-Superior agreement, the Superior never paid to the Wests the rental of $250.00 for the privilege of deferring the commencement of operations for the drilling of a well as provided for in Paragraph 4 of the Superior lease, but to the contrary, the record shows that after said agreement Superior paid to the Wests only the monthly sums as provided for in the agreement for the privilege of deferring commencement of operations for the drilling of a well upon the 100 acre tract. This clearly shows the intention of the parties to the West-Superior agreement was for such agreement to be only for the purpose of paying for the privilege of deferring the commencement of drilling operations on the land involved in this controversy.

It appears also that the West-Superior agreement is applicable to Paragraph 2 of said oil and gas lease as an amendment to the portion thereof that provides:

“This lease shall be for a term of ten years from this date (called primary term) * * * ”

because it is without dispute that the Superior lease was maintained in full force and effect long after the ten year period from the date of the lease by virtue of the payments made by Superior to the Wests under the West-Superior agreement.

We do not hold that the provisions of Paragraphs 2 and 4 referred to above of the Superior lease are the only provisions to which the West-Superior agreement may have some application.

The West-Superior agreement was a private agreement and was made only for the benefit of the appellees and Superior and as so expressed within the agreement itself, it was effective for the sole purpose of maintaining the lease in full force and effect for the time and in the manner therein provided.

Appellant seizes upon the term “lieu royalty” as used in the agreement, but such term did not add anything to the agreement, nor make it production from the 100 acre tract at all, and calling an interest an overriding royalty or a lieu royalty would not be conclusive of its true status.

The Supreme Court in Delta Drilling Company v. Simmons, 161 Tex. 122, 338 S.W.2d 143, 146, speaking through Associate Justice Greenhill, said:

“ * * * Of course, whether the interest created or reserved in an instrument is an overriding royalty or something else depends upon the true nature and the wording of the particular conveyance which gives rise to the interest. Calling an interest an overriding royalty would not be conclusive of its true status. * * ”

Simply because the Superior and Wests used the word “royalty” did not make the delay rentals royalty unless they really were.

The royalty deed from West, under which the appellant holds, contains the following provisions:

“ * * * have granted, sold, conveyed, assigned and delivered, and by these presents do grant, sell convey, assign, set over and deliver unto the said grantee an undivided one-fourth interest in and to all of the oil royalty, gas royalty, * * * that may he produced and mined from the following described lands situated in the County of Van Zandt, State of Texas, to-wit: * * * ” (Emphasis ours).

This was followed by a description of the 100 acre tract of land involved in this controversy, being the same land described in the oil and gas lease held by Superior. The instrument further provides:

“Said lands or portions thereof, being now under oil and gas lease executed in favor of the owner thereof; it is understood and agreed that this sale is made subject to the terms of said lease, but covers and includes the same percent interest as first hereinabove named, of all the oil royalty and gas royalty * * * due and to be paid under the terms of said lease.”

It also provides:

“And it is further understood and agreed that notwithstanding, the grantee does not by these presents acquire any right to participate in the making of future oil and gas mining leases on the portion of said lands not at this date under lease, or of participating in the making of future leases, should any existing or future lease for any reason become can-celled or forfeited, nor of participating in the bonus or bonuses which grantor herein shall receive for any future lease, nor of participating in any rental to be paid for the privilege of deferring the commencement of a well under any lease now or hereafter',” (Emphasis ours).

In the case of Griffith v. Taylor, 156 Tex. 1, 291 S.W.2d 673, the Supreme Court sets at rest the definitions of “bonus,” “rental,” and “royalty.” In quoting from the Supreme-Court of Louisiana and adopting its words, the court used this language:

“ * * * ‘The words “bonus”, “rental”, and “royalty” used in connection with oil and gas leases are to be construed in the ordinary and popular sense, “bonus” meaning the cash consideration paid or agreed to be paid for the execution of the lease, “rental” being the consideration for the privilege of delaying drilling operations, and “royalty” being a share of the product or proceeds therefrom reserved to the owner for permitting another to use the property/ * * * ”

Applying the law pronounced in the Griffith case to the West-Superior agreement, the payments from Superior to West which were for the sole purpose of delaying or deferring drilling operations on the West 100 acre tract and maintaining the lease in full force and effect, were “rental payments.”

The Texarkana Court of Civil Appeals held in Andretta v. West, supra, 318 S.W.2d page 772:

“ * * * Appellant casts his petition in the form of an (a) action upon debt arising out of a contract; (b) and pleads the contracts upon which he relied to establish a recovery; and (c) prays for a joint and several judgment. If Superior is indebted to Andretta, it is because of the terms of the original mineral lease construed in connection with a lieu royalty contract. If the Wests are indebted to him it is because of their violation of the warranty of their deed conveying ¼ of the royalty construed in connection with the lieu royalty contract. * * * ”

Surely the warranty has not failed. Appellant sues for debt, and if anyone owes him a debt, it is the Superior Oil Company, not the Wests.

The Wests made a private contract with the Superior and as said by the Supreme Court in Dickason v. Mathews, Tex.Civ.App., 335 S.W.2d 658, at page 661:

“ * * * ‘Parties are presumed to contract for themselves. It follows that a contract will not be construed as having been made for the benefit of a third person unless it clearly appears that such was the intention of the contracting parties. 17 C.J.S., Contracts, § 519, p. 1129/
“ ‘ “It is not our purpose to hold that a contract may not be made for the benefit of a third person, although such person may not be specifically mentioned, but we do hold that a contract to have such effect, must clearly evidence a distinct intention to benefit such third person.” Irwin’s Bank v. Fletcher Sav. & Trust Co. (1925) 195 Ind. 669, 692, 145 N.E. 869, 876, 146 N.E. 909.' ”

The non-participating royalty interest acquired by appellant was passive in its nature and entitled him to participate only in the event of production from the land described in his conveyance, nothing more. If he wanted anything more, or desired something from the Superior, he should have demanded it of them. If they owed him anything, then they still owe him, but not the Wests. The Wests were paid what Superior contracted to pay them. Such is the expression in Evans v. Opperman, 76 Tex. 293, 13 S.W. 312, wherein the court, in discussing the payment of insurance and speaking through Judge Gaines, said:

“There was a demurrer interposed to the petition, and it was overruled by the court. This action of the court presents a question we have found it difficult to determine. From the face of the petition, it would seem that the ground of complaint is that the defendants had collected the whole of the insurance money, and that the plaintiff is entitled to an equal share, namely, one-tenth, of it. Admitting all this to be true, it is not clear that any injury has been done to the plaintiff. If he was entitled to a part of the money, the insurance companies still owe it to him, and the action of the defendants have not deprived him of any right. If they had held the legal title to the money, and he had owned a beneficial interest in it, his right to sue them would have been clear. But, in the absence of any fiduciary relation, or any privity of contract, between the parties, and of the deprivation of any right which he had, it is difficult to see that he has a cause of action against them, according to the facts stated in the petition. * * * ”

To the same effect is the case of Patton v. Mitchell, 13 S.W.2d 146, 148, (Tex.Civ.App.) 1929, n. w. h., wherein the court said:

“We are further of the opinion that Mitchell cannot recover against Patton because there is no privity between them with reference to the fund in issue. Graham v. Jackson (Tex.Civ.App.) 189 S.W. 551.
“ ‘Where there are two claimants for the same money and one of them is recognized as being entitled to it by the person from whom it is due and is paid, the other cannot sue him to recover the money for the reason that having received the money under a claim of right in himself, the law will not imply any contract or promise by him to hold the money for the use of the other claimant or to pay it over to him and therefore, there is not, under the circumstances, any privity of contract on which to found the action/ 41 C.J. 41.”

Appellant relies upon the case of Schlittler v. Smith, 128 Tex. 628, 101 S.W.2d 543, and the case of Morriss v. First Nat. Bank of Mission, Tex.Civ.App., 249 S.W.2d 269. These cases were dealing with a contract providing for mineral royalty within the lease itself and not with the situation wherein there was a subsequent agreement and a subsequent contract made between different parties and for another purpose, and we do not believe these cases are applicable to the case at bar.

The Wests were paid by the Superior under a private contract to the ap-pellees, who had a claim of right to it and were not in any sense of the word holding the money for the use of any other claimant, but only for the benefit of the appel-lees, themselves.

At the time of the execution of the original royalty instrument between the parties, the land described was under an oil and gas lease held by the Superior Oil Company. That lease stayed in existence during the entire time of the payments made to the appellees by the Superior Oil Company.

This lease having never been cancelled or forfeited, no executive rights ever inured to the benefit of appellees, and they were not called upon to execute them until such rights came into existence. Appellees were not in a position of trustees, nor bound to protect the interest of the grantee and his assigns in the royalty conveyance.

If the parties desired to participate in the payments under the oil and gas lease for the deferring of commencement of drilling operations, they could have very easily written into the instrument the same terms as were contained in the royalty conveyance under consideration in Masterson v. Gulf Oil Corporation, 301 S.W.2d 486, (Tex.Civ.App.) 1957, writ refused, n. r. e.

In that conveyance, the grantors excepted from the conveyance a one-sixteenth royalty interest and one-half of any bonus or rentals paid in lieu or in place of that royalty interest. The court held under such a reservation that they were not entitled to any monies paid in lieu of that royalty. There was no such language in the present conveyance to appellant, but, on the contrary, the conveyance itself provided:

“Nor of participating in any rental to be paid for the privilege of deferring the commencement of a well under any lease, nor or hereafter.”

This language is broad enough to cover any monies paid to the appellees to defer any drilling upon the property under lease, and by the provisions of the instrument itself, the grantee in said instrument, or appellant, would have no interest in those payments.

As said by Judge Pope in Campbell v. Dreier, 382 S.W.2d 179, (Tex.Civ.App.) 1964, writ refused, n. r. e., quoting from the case of Sellers v. Breidenbach, 300 S.W.2d 178, 179, (Tex.Civ.App.) 1957, writ refused :

“ * * * ‘The parties could have placed in their royalty deed a shut-in gas well provision, if they had desired to do so, but we find no such provision in this deed.’ Archer County v. Webb, 161 Tex. 210, 338 S.W.2d 435; * * *” See also Midwest Oil Corporation v. Lude, 376 S.W.2d 18, 22, (Tex.Civ.App.) 1964, writ refused, n. r. e.

If the parties to the royalty deed under consideration had wished or agreed that the grantee was to share in any payments of whatever nature, they could have written into the contract any terms and- conditions with reference thereto, but not having so agreed, the court could not re-write the contract for appellant’s benefit. Our Supreme Court has definitely followed this line of thought in Archer County v. Webb, supra, wherein they followed the opinion by the Circuit Court of Appeals in Scott v. Union Producing Company, 5 Cir., 267 F.2d 469, holding that a grantee in an instrument could have additional rights in-grafted by the court on his conveyance, but later said:

“ * * * ‘It is the mineral deed, not the lease, which should have contained the provision securing to the term mineral owners the benefit of the shut-in gas well and provision.’”

It is also held in Campbell v. Dreier, supra, that:

“The word ‘production’ as used in a term royalty deed means actual production. Holchak v. Clark, Tex.Civ.App., 284 S.W.2d 399. If shut-in royalty is relied upon as substitute production applicable to the royalty deed, provision for it must be found in the royalty deed and not in the overlying lease. * * * ”

We have concluded that the payments made to the appellees herein by the Superior Oil Company were paid for only one purpose, and that was to delay the drilling of a well upon these premises, and regardless of the language of terms used by the parties, it came within the exception of the royalty conveyance itself, which provided in plain language that the grantee in said instrument should not participate in any rental to be paid for the privilege of deferring the commencement of a well under any lease, not confining the restrictions to any future lease, but using the language “now or hereafter.”

We think this language could have no other meaning than that any monies paid to the grantor or appellees, under the lease in existence at the time of the execution of the royalty conveyance for the sole and only purpose of delaying the drilling of a well, were not to be shared by the grantor and the grantee. The language of the instrument itself forecloses the idea that the grantee in said instrument, or his assigns, were to have any interest in any rentals paid to defer the development or drilling of a well on the tract of land in controversy.

Appellant has quoted from an article “ ‘In Lieu’ Royalty Agreements in the Oil Industry” 3 Houston Law Review 84, written by Leslie Moses, wherein he makes the statement that:

“The in lieu royalty should not be confused with annual delay rental payment. The latter is not a royalty because it is not based on production. Delay rentals do not relieve the lessee from the duty of drilling an offset well if the oil or gas is being drained from under the lessor’s land.”

In the case at bar, there are no pleadings or any evidence that at any time during the existence of the Superior lease or the West-Superior agreement that oil, gas or any other minerals were being drained from under the 100 acre tract of land in controversy.

The conveyance by the appellees to the appellant was at a time when there was a valid lease on the property, and such lease not having expired during the payment of the delay rental to appellees, no executive rights ever accrued and there was no trust relation existing between the parties.

There are some expressions by our Supreme Court notably in Schlittler v. Smith, supra, which announce the rule that the holder of an executive right under a mineral reservation owed a duty to the non-participating royalty owner of protecting his rights in the execution of any leases under the executive right. But, as said by Judge Pope in Campbell v. Dreier, supra, “ * * * The existence of a duty to protect the royalty owners does not, however, mean that an owner or holder of executive rights has the additional and new power to change the terms of outstanding royalty deeds.”

Under the provisions of the royalty deed, until the Superior lease became cancelled, or forfeited, the appellees were not the holders of any executive rights. Consequently, not having the executive rights in making the agreement with the Superior Oil Company for the delay of drilling, ap-pellees could not have been acting as trustees for the appellant, and until said lease, which was in existence at the time of the making of the royalty conveyance was forfeited or cancelled, West did not owe the appellant any fiduciary duties, nor was he under any fiduciary duties to the grantee in the royalty conveyance, or to his assigns.

In the words of Judge Hutcheson in Scott v. Union Producing Company, supra, it is the mineral deed and its provisions that must be looked to, and the mineral deed in providing for any duties owing by the appellees to appellant, the court would not be authorized to insert into the agreement any provisions or agreements that had been omitted. Appellant’s Points of Error Nos. 1, 2 and 3 are overruled.

In view of the disposition we have made of this case, under appellant’s Points of Error Nos. 1, 2 and 3, it is unnecessary for us to discuss appellant’s Point of Error No.

4.

The judgment of the trial court is affirmed.

      . COUNTER POINT I. The payments made hy The Superior Oil Company to Appellees were in accordance with and by virtue of a private contract between the parties for the sole purpose of maintaining an oil and gas lease in full force and effect in the nature of delay rentals and were not royalties paid from production.
      COUNTER POINT II. Appellant’s non-participating royalty conveyance was passive in its nature and entitled him to participate only in the event of production from the land described in his conveyance, and since, admittedly, there was no production from said lands, he was not entitled to recover.
      COUNTER POINT III. The contract between The Superior Oil Company and the Appellees herein was a private contract made only for the benefit of Appellees, and if The Superior Oil Company was indebted to Appellant, it is still indebted, and Appellant would have to pursue his claim against the Superior.
      COUNTER POINT IV. The Appellant and Appellees, not having provided in the original non-participating royalty conveyance for Appellant to share in payments made to delay the drilling of a well, the trial court was not authorized to rewrite the contract nor make additions thereto.
      COUNTER POINT V. The conveyance by the Appellees to the Appellant was at a time when there was a valid lease on the property, and such lease not haying expired during the payment of the delay rental to Appellees, no executive rights ever accrued and there was no trust relation existing between the parties.
      COUNTER POINT VI. The trial court correctly held that if Appellant had any cause of action, it was for a debt and was governed by the two-year Statute of Limitation.