author: PER CURIAM.

text:
    A. L. CROUCH, Judge of the Probate Court of Tarrant County, Texas, Appellant, v. William E. SHIELDS, Jr., Guardian, Appellee.
    No. 16461.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 4, 1964.
    Rehearing Denied Jan. 8, 1965.

      Andress, Woodgate, Richards & Condos, Dallas, A. L. Crouch, pro se, Fort Worth, for appellant.
    Lattimore & Lattimore, Fort Worth, for appellee.
   PER CURIAM.

This appeal was transferred to this court by order of the Supreme Court of Texas.

William E. Shields, Jr., Guardian of the Estates of William E. Shields, III, and Katherine Marie Shields, Minors, brought this action in the District Court of Tarrant County, Texas seeking a writ of mandamus against A. L. Crouch, Judge of the Probate Court of Tarrant County, Texas. In his petition the guardian alleged that in June 1963, at the request of the probate judge, he had delivered into the possession of said official a set of books and records which contained information relevant to the estate of the minors; that despite repeated demands the judge had failed and refused to deliver back these records, even for the limited purpose of bringing the hooks down to date and aiding in the preparation of tax returns for the year 1963; that it was necessary to have said books and records in order that said guardian, and his accountants, might prepare the federal income tax returns on behalf of the minors; that no justifiable reason existed for the failure on the part of the probate judge to deliver the records either to the guardian or to the accountants; that irreparable injury would result to these estates unless the books and records be made available by the probate judge. The guardian also alleged that on December 16, 1963 he had filed an application for the sale of certain real estate belonging to the estates of the minors; that a full and complete hearing was had on the application before Judge Crouch on February 13, 1964; that Judge Crouch has had more than a reasonable time to consider the evidence and merits of the application but refuses to act upon said application; that the continued delay and refusal by the judge to act will result in injury to the estates of the minors and will prevent the guardian from performing his duties to act for the best interests of the estates. The guardian also alleged that on the 13th day of September, 1963 he filed an application in the Probate Court to transfer the guardianship to the County Court, it being a court of concurrent jurisdiction, but despite repeated requests Judge Crouch has failed and refused to hear the motion.

Following a hearing before the court on March 19, 1964 the district judge issued the writ of mandamus directing Judge Crouch (1) to deliver forthwith the books and records in controversy to Arthur Young & Company, Certified Public Accountants of Fort Worth, Texas; (2) to make an order within two weeks from the judgment, either granting or overruling the application to sell the real estate; and (3) within ten days from the judgment to announce a date for a hearing on the motion to transfer the cause to the County Court.

The trial judge made findings of fact, inter alia, that, the records of the estates previously delivered to Judge Crouch by the guardian were necessary and proper for the preparation of income tax returns but that Judge Crouch has refused to deliver said records to the guardian, or his accountants, and indicates that he does not intend to deliver said records or afford the guardian access thereto; that a full hearing has been had on the application of the guardian to sell real estate of the minors but that Judge Crouch has taken no action on the application nor any other action in this estate since June of 1963; that the guardian filed a motion requesting Judge Crouch to transfer the entire guardianship proceedings to the County Court but that Judge Crouch refuses to give the guardian a hearing on said motion. The trial judge concluded, as a matter of law, that the guardian was entitled to a writ of mandamus; that Judge Crouch has abused his discretion in refusing the guardian access to the records in question and in failing to act upon the application for the sale of the land belonging to the minors, and also in refusing to afford the guardian a hearing on his motion to transfer the guardianship proceedings. The court also found that no jury issue existed.

Judge Crouch appeals, assigning seven points of error. Before directing our attention to the specific points raised by appellant we deem it advisable to comment upon the indirect attack upon the jurisdiction of the District Court of Tarrant County to issue a writ of mandamus directed to the Probate Court of that county, said attack being obliquely made in several of appellant’s points and also in his oral argument before this court: We are of the opinion that the District Court had complete jurisdiction to issue the order' upon which this appeal is based. The law is well established in Texas that a district court has jurisdiction in a mandamus proceeding against a county judge or a probate judge but such power is naturally limited to certain conditions, one of which being where' there is' a' failure on the part of the probate or county judge to perform a ministerial duty. Art. 5, Sec. 8, of the Constitution of Texas, Vernon’s Ann.St. specifically provides that the district court shall have general control in probate matters, over the county court established in each county, as well as general control over executors, administrators, guardians and minors. Both Articles 1907 and 1914, V.A.C.S., implement the constitutional provisions. The following authorities leave no question concerning the jurisdiction of the District Court to issue a writ of mandamus under such conditions as was issued in this case: Thorne v. Moore, 101 Tex. 205, 105 S.W. 985; Journeay v. Shook, 105 Tex. 551, 152 S.W. 809; Southern Bag & Burlap Co. v. Boyd, 120 Tex. 418, 38 S.W.2d 565; Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677; Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484; Cranc v. Tunks, 160 Tex. 182, 328 S.W.2d 434; Neville v. Brewster, 163 Tex. 155, 352 S.W.2d 449; Crouch v. Craik, Tex., 369 S.W.2d 311; 37 Tex.Jur.2d, § 41, p. 654, cí scq., and § 70, p. 714, et seq.

In the case of Capps v. Cowan, Tex.Com.App., 286 S.W. 161, the question of the right to issue a writ of mandamus to require the return of books and records, as in this case, was discussed and upheld by the court.

By his Point 1, appellant contends that the District Court had no right to mandamus him to hold a hearing on the motion of the guardian to transfer the case to another court because the statute authorizing such transfer between courts of concurrent jurisdiction does not provide for a motion or a hearing. The Probate Court of Tar-rant County over which Judge Crouch presides was created by the Acts of the 55th Legislature of 1957, Page 1204, Chapter 400, as amended by the Acts of the 56th Legislature in 1959, Page 739, Chapter 334, Section 1, all being codified as Article 1970-345, V.A.C.S. This Act specifically gives concurrent jurisdiction between the Probate Court so created and the County Court of Tarrant County, already in existence. The Act provides, in part: “The judge of either of said courts, in his discretion, may, by an-order entered upon the minutes, on or after-the first day of the initial term of said Probate Court of Tarrant County, transfer from either of said courts to the other, any such matter or proceeding then or thereafter pending therein * * *Appellant points out that this statute does not expressly provide for a motion to be filed by a party seeking such a transfer but that such transfer remains solely within the discretion of the judge. The guardian’s sworn pleadings to the effect that he had filed such a motion for transfer and that Judge Crouch had repeatedly refused to give him a hearing on said motion was not denied by Judge Crouch in his answer. Judge Crouch testified that he did not think he was obligated to hear the motion. We cannot agree with appellant’s contention. The mere fact that the statute does not specifically provide for such a motion does not carry with it the implication that a party is without power to file a motion to transfer. Otherwise, no remedy would be available to any party who desired to request the court to exercise his discretion to transfer a case from one court to another. Appellee guardian makes it clear that he does not, by his application for writ of mandamus, ask the District Court to compel Judge Crouch to rule one way or the other on his motion. He merely asks that the judge rule. The writ of mandamus directing the court to set the motion for hearing does not interfere with the discretionary power of Judge Crouch. It does nothing more than direct him to perform a ministerial act. It has been said that where a judge refuses to exercise the discretion accorded him mandamus is a proper remedy. 37 Tex.Jur.2d, § 21, pp. 624, 625, and cases therein cited. Appellant’s Point 1 is overruled.

By his Point 2, appellant attacks that part of the writ of mandamus directing him to rule upon the application to sell real estate, by contending that the guardian did not file the application to sell in conformity with the law and therefore he is not required to rule upon the application. In support of this point appellant argues that the application filed by the guardian does not conform to Section 342 of the Probate Code of Texas, V.A.T.S. in that there is no exhibit “attached" showing the condition of the estate. He further contends that the district judge carefully refrained from finding that the application was in conformity with the law. We disagree with appellant in this regard. The findings of the trial judge carried the necessary implication that the application was filed in due form. Section 342 of the Probate Code, relating to the contents of the application to sell real estate, provides that such application “shall be accompanied by an exhibit” showing fully and in detail the condition of the estate, etc. (Emphasis supplied.) It does not provide that such exhibit must be “attached” as contended by appellant. The issue of lack of essential exhibits is not presented by the pleadings. Appellee guardian alleged that he had filed his application, and attached a copy thereto, said application being under oath. Appellant, in his original answer, also verified, alleges that the guardian made application for the sale of the property and that a full hearing had been had in the Probate Court on February 13, 1964. He also alleged that at this hearing appellant had required the guardian to file a complete annual account of the guardianship through the calendar year 1963 and that such account was signed and sworn to by the guardian. Such being the condition of the sworn pleadings of both parties, we do not find the issue of exhibit to be raised. Marr v. Reynolds, Tex.Civ.App., 151 S.W.2d 263. In addition to the foregoing, we are of the opinion that should it be conceded that proper exhibits did not accompany the application to sell the real estate, such fact does not, as a matter of law, justify the refusal of the Probate Court to act upon the motion. The mandamus in this case is not directed against Judge Crouch in such a manner as to require him to rule one way or the other. It merely demands that he rule. He may well sustain the motion or he may overrule the same. The alleged insufficiency of the application to sell is not pertinent to the ultimate grant of the writ of mandamus in this case. This is further demonstrated by Judge Crouch’s testimony wherein he positively says he will not act upon the application to sell the real estate until “it will serve the best interest of the estate or whenever the Supreme Court of Texas tells me to.” Neither of the reasons assigned by the appellant is legally sufficient to justify his continued refusal to act at all — either to grant or deny the application. Appellant’s second point is overruled.

By his Point 3 appellant assails the mandamus insofar as it relates to directing him to return certain records to the guardian or the accountants, it being contended that there was no demand and the guardian should have resorted to a motion to inspect or to apply for a writ of sequestration for their return. This position is not tenable. Insofar as a demand is concerned the record affirmatively shows that both in his pleadings and in his testimony Judge Crouch admits that he has the records in his possession and refuses to deliver them. There is nowhere a denial that a demand has been made for their return. Such fact is not in issue. Moreover, Judge Crouch’s testimony that he refuses to deliver the records results in a situation where a demand would be a futile thing. Under such conditions the law does not require a demand to be made. McPhail v. Scarborough, Tex.Civ.App., 16 S.W.2d 858. Neither is there any merit to the contention that the guardian should have resorted to a writ of sequestration or similar process in order to obtain the records. Judge Crouch admits that the papers are in his custody. They are' therefore in custodia legis and not subject to sequestration. Illinois Cent. R. Co. v. Ryan, Tex.Civ.App., 214 S.W. 642. Appellant’s third point is overruled.

By his fourth and fifth points, closely interrelated, and both being general in nature, appellant contends that the ap-pellee guardian cannot properly apply for a writ of mandamus because he does not have “clean hands” nor has he exhausted his legal, remedies. Neither of these points has any merit. As to the “clean hands” theory appellant says that appellee has not complied with the law in performing his various duties as guardian of the estates of the minors. Without deciding this question it is sufficient to say that if such are the facts then they would be the basis for an action to remove the guardian. We have been cited no authority, nor are we able to find any, holding that under such conditions the guardian is prevented from requesting that the probate judge perform his duty as a judge. As to the argument concerning exhaustion of legal remedies, the action here does not fall within the category of the ordinary equitable writ of mandamus. This action, in essence, is permitted by the constitution and statutes above quoted. Since the matter lies well within the jurisdiction of the District Court we find no merit in appellant’s contention. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823. Moreover, appellee guardian has no legal remedy of appeal for the simple reason that the action on the part of the probate judge in this case in flatly refusing to rule on the matters presented prevent any appeal.

In his sixth point appellant argues that since there is no evidence of any demand before suit for any of the relief sought, that mandamus is not proper. We have already discussed the question of demand and requests in our consideration of previous points. There is no issue of lack of demand presented by either the pleadings or the evidence. The sixth point is overruled.

By his seventh and last point appellant contends that he was denied the right of trial by jury. Appellant did request a jury and paid the jury fee. However, the trial judge found, as a matter of law, that no issue of fact was presented in this record. We have carefully reviewed the verified pleadings as well as the statement of facts in its entirety and agree with the trial court’s finding that no issue of fact was presented and therefore appellant has not been prejudiced by a denial of a jury. The material facts are undisputed. Judge Crouch admits that he would not, under any circumstances, deliver up the records in question; that he would not afford the guardian a hearing on his application to transfer the case; and that he would not act on the application to sell until “it will serve the best interests of the estate or whenever the Supreme Court of Texas tells me to.” There being no dispute on these material issues, no issue of fact would have been submitted to a jury, had one been granted. Appellant’s seventh point is overruled.

A careful review of this entire record reveals a rather unfortunate condition to exist in the Probate Court of Tarrant County, Texas between Judge Crouch and the executor and his attorneys in this particular case. The testimony reveals a bitter feeling between the parties involved and we do not believe that it would serve a useful purpose to burden this opinion with a recitation of more of the record. It is sufficient to say that we have carefully reviewed the entire record and find that the findings of fact on the part of the trial judge are supported by probative evidence and that the conclusions of law are correct. 4 Tex.Jur.2d, § 839, p. 398, et seq. The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    CALLIHAN INTERESTS, INC., Appellant, v. Carl E. DUFFIELD, Jr., Appellee.
    No. 3909.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 20, 1964.
    Rehearing Denied Jan. 8, 1965.
    McMahon, Smart, Sprain, Wilson & Camp, Marvin S. Sprain, Abilene, for appellant.
    Mays, Leonard, Moore & Dickson, George W. Leonard, Jr., Sweetwater, Whit-ten, Harrell & Wilcox, Abilene, for ap-pellee.
   GRISSOM, Chief Justice.

Nannie Box et al sued Callihan Interests, Inc. in Callahan County for damages to their land and water caused by Callihan’s-disposal of salt water in connection with its production of oil. Callihan sought leave to lile a third party action against Bridwell, Fulwiler and Carl E. Duffield, Jr. who were alleged to be likewise disposing of their salt water on adjacent premises and contributing to Box’s damage. The court permitted said third party action by Callihan only upon condition that its cause of action for indemnity or contribution against Duf-field, Bridwell and Fulwiler be severed from the cause of action asserted by Nannie Box et al against Callihan Interests, Inc. Thereupon, Callihan filed a third party complaint bringing in Duffield et al and alleged that the sole cause of the damage to Box et al was the manner in which said third party defendants disposed of their salt water. Callihan also sought indemnity or, in the alternative, contribution from them. Duffield filed a plea of privilege to be sued in Taylor County and, by agreement, the case was transferred there.

All of said parties, except Duffield, agreed to a judgment which was rendered awarding Box et al judgment for $18,500.00 against Callihan and awarding Callihan judgment against Bridwell and Fulwiler each for $800.00 contribution with provision that said judgment should not release the cause of action asserted by Callihan against Duf-field. Callihan, Bridwell and Fulwiler paid said judgment in accord with its provisions.

Duffield filed a motion for summary judgment in Callihan’s third party proceeding against him. The gist of that motion was that Callihan could not recover contribution from him because said judgment in favor of Box et al, more than $16,000.00 of which had been paid by Callihan, was an agreed judgment, not one judicially determined at the conclusion of a trial, and, therefore, under the terms of Article 2212, Callihan had no cause of action for contribution against Duffield. Duffield’s motion for summary judgment was granted and judgment was rendered accordingly. Callihan has appealed.

Callihan paid more than $16,000.00 on the judgment and to that extent discharged the liability, if any, of Duffield to Box. Under the common law Callihan has no cause of action against Duffield for either contribution or indemnity. The only question is whether Article 2212, as it has been construed by Texas courts, gave Callihan the cause of action it asserts. No Texas case that directly answers that question has been cited and, after diligent search, we have found none. Callihan was not permitted in the original case to pursue his claim against Duffield and he should be permitted to maintain this independent suit for contribution against Duffield if the cause of action he asserts comes within the purpose and intention of said statute. The trial court, supported by the decision in Brown & Root, Inc. v. United States, 5 Cir., 198 F.2d 138, apparently held that Callihan could not maintain the suit because it was based upon an agreed judgment and not upon a judgment arrived at by judicial determination at the conclusion of a trial. We think this is not in accord with the interpretation of the statute by the Texas Courts which is to the effect that the purpose of the statute was to create a cause of action for contribution and not to prescribe the procedure by which it is to be obtained. The statute created a cause of action for the benefit of one tort-feasor who, by paying a judgment, discharged the liability of his joint tort-feasor. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 776; Gattegno v. The Parisian (Com.App.) 53 S.W.2d 1005, 1007 and 1008; Gulf, Colorado & Santa Fe Railway Co. v. Bliss, (Sup.Ct.), 368 S.W.2d 594. To hold that Callihan lost its right to contribution because it agreed to the judgment, under circumstances where it was impossible for it to have the liability of Duffield determined, would be contrary to the policy of the law to encourage settlement of cases. Callihan’s asserted cause of action against Duffield is not based strictly upon the judgment, which did not bind Duffield, but upon the fact that Callihan by paying the judgment against it discharged more than its just share of its and Duffield’s alleged joint liability to Box. Huggins v. Johnston, 120 Tex. 21, 35 S.W.2d 688, 689. By the literal terms of Article 2212 the right to contribution is granted to one joint tort-feasor, against another only when a plaintiff has recovered judgment jointly against both and one has paid the judgment. Notwithstanding its limited terms, our courts have held that the purpose of the statute was to place the burden equally upon joint tort-feasors:, that it was enacted to prevent inequities between joint tort-feasors; that a defendant tort-feasor may bring in other wrongdoers not sued by the plaintiff; that a joint judgment against tort-feasors is not required as a prerequisite to recovery of contribution by one against another and that the “dominant purpose” of Article 2212 is to “create the right of contribution”. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 776; Gattegno v. The Parisian (Com.App.) 53 S.W.2d 1005; Lottman v. Cuilla, (Com.App.), 288 S.W. 123, 126; Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449. We think it was the purpose of the Legislature to create a cause of action for the benefit of one tort-feasor who by paying a judgment discharges more than his just share of the joint liability of himself and another joint tort-feasor to the injured party. We think Callihan should be permitted to attempt to establish such facts and, if successful, recover the part of Duffield’s liability to Box, if any, which it has thus discharged.

Although certainly not altogether analogous, the reasoning in Glasscock v. Hamilton, 62 Tex. 143, 151, indicates the answer suggested above. There the court said:

“It does not furnish a defense against contribution by a surety that his co-surety has paid a judgment against himself to which the surety against whom contribution is sought was not a party. In such case it has been held that the-judgment is competent evidence to show the amount of the payment made by the plaintiff, and the circumstances under which it was made, but not for the purpose of proving the liability. Brandt on Suretyship, sec. 246, citing Fletcher v. Jackson, 23 Vt., 581.
“A surety may pay without suit and demand contribution under proper circumstances ; a fortiori he may pay what is justly due, and exact contribution where judgment has been rendered against him therefor, irrespective of whether his co-sureties are parties to the suit. The law requires no one to wait for a suit, if he has no defense. 1 Parsons’ Con., 32. The essential equity of the surety asking contribution consists in the fact that he has paid so much of a debt for which he and his co-surety were bound that was just and enforceable at law against them both. In an action for contribution between co-sureties, the record of a judgment recovered by the creditor against the principal and one of the sureties, to which the other surety is not a party,. is competent evidence to prove the rendition of such judgment, by way of inducement to evidence that the surety against whom it was rendered has paid it. Brandt on Suretyship, sec. 529; Preslar v. Stallworth, 37 Ala., 402.
-“The rule of law applicable to the subject is that, as soon as the debt becomes due, any one of several co-sureties may, without suit or compulsion on him of any kind, at once pay the debt and recover contribution from his co-sureties. All the co-sureties are equally liable for the whole debt, and a payment of the debt by one of them after it is due and without compulsion is in no sense a voluntary payment * * t- ”

See also 8 A.L.R.2d 196 and A.L.R.2d Supplement Service 1962 page 133; 26 Texas Law Review 150, 168; Gulf, Colorado & Santa Fe Railway Co. v. Bliss, (Sup.Ct.), 368 S.W.2d 594, 599.

In the same kind of a case as the original suit by Box et al v. Callihan our Supreme Court has held that where the acts of two or more joint tort-feasors join to produce an indivisible injury, which from its nature cannot be apportioned with reasonable certainty to individual wrongdoers, all of the wrongdoers are jointly and severally liable to the injured party for his. entire damages and the injured party may proceed to judgment against any one or all of the joint tort-feasors. Landers v. East Texas Salt Water Disposal Company, 151 Tex. 251, 248 S.W.2d 731. See also Riley v. Industrial Finance Service Company, 157 Tex. 306, 302 S.W.2d 652; Gammage v. Weinberg, Tex.Civ.App., 355 S.W.2d 788, (Ref.N.R.E.); Burns v. Lamb, Tex.Civ.App., 312 S.W.2d 730, (Ref.N.R.E.) and Dement v. Olin-Mathieson Chemical Corp., 5 Cir., 282 F.2d 76, 82.

If Box had a cause of action against both Callihan and Duffield upon which he could have recovered judgment (without proof of the amount each damaged him) for his entire damage against either or both and Callihan, by paying said agreed judgment, has discharged the liability of Duffield to Box, and the purpose of Article 2212 was to create a cause of action for the benefit of one of two joint tort-feasors who has thus discharged more than his share of their joint liability to the injured party, Callihan is entitled to recover the share of Duffield’s liability to Box, if any, which it has discharged. See Merchants’ National Bank v. McAnulty, 89 Tex. 124, 33 S.W. 963; Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563; The City of Houston v. Watson, Tex.Civ.App., 376 S.W.2d 23, 33, (Ref.N.R.E.).

The judgment is reversed and the cause is remanded.


author: BATEMAN, Justice.

text:
    MEDFORD INSURANCE COMPANY, Ltd., Appellant, v. B. L. WEIMER, Appellee.
    No. 16429.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 4, 1964.
    Rehearing Denied Jan. 8, 1965.
    Charles E.. Hughes, Sherman, for appellant.
    Slagle & Kennedy, Sherman, for appel-lee.
   BATEMAN, Justice.

Appellee B. L. Weimer sued Medford Insurance Company, Ltd. to recover under an insurance policy for fire damage to his' truck. Appellant contended that it had cancelled the policy prior to the loss. The jury found in response to special issues that (1) Weimer did not receive, and (2) appellant did not mail to Weimer, a notice of cancellation. The amount of loss having been stipulated, judgment was rendered in favor of Weimer for that amount.

By its first two points of error on appeal appellant asserts that, since it established without dispute that notice of cancellation had been mailed to appellee in compliance with the terms of the policy, appellee could have no cause of action and appellant’s motions for instructed verdict and for judgment non obstante veredicto should have been sustained. The third point of error asserts that the judgment was erroneous because there was no evidence to support the jury finding- that the notice of cancellation was not mailed. The fourth point says that the judgment should be reversed because that jury finding is contrary to the overwhelming weight and preponderance of the evidence. These four points will be considered and disposed of together.

The policy in question contained this provision: “This policy may be can-celled by the company by mailing to the insured at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice.” To establish its defense that the policy was not in effect at the time the loss occurred, it was not encumbent on appellant to prove that notice of cancellation was actually received by appellee, only that it had been mailed to appellee at his address shown in the policy. Duff v. Secured Fire & Marine Ins. Co., Tex.Civ.App., 227 S.W.2d 257, 258, no wr. hist., and cases cited therein.

Appellant’s proof on this matter consisted of the testimony of one George Mc-Williams and certain documents. McWil-liams testified that he owned Bankers Insurance Agency, of Houston, Texas which represented the appellant as general agent for the State of Texas; that the policy in question had been placed through his agency by a broker in Sherman, Texas named Gray; that subsequently, at the request of appellant, he cancelled the policy; that this was done in accordance with the regular general practice of his office; that standard forms of notice are used and the original is addressed to the insured and copies addressed to anyone else that might be involved, which in this case were the local agent or broker, Gray, the Quaker Employees Federal Credit Union and the appellant; that a form of receipt furnished by the Post Office Department, on which appears the same date, name and address as on the letter, is prepared in his office and the post office clerk determines whether the address on the receipt is identical to the address on the letter, and if he finds that they are he stamps the face of the receipt and hands it back to the person bringing the same in and the clerk then puts the letter in the mail; that his office generally retains a carbon copy of the notice of cancellation; that the notice is dated and states that the insurance coverage will terminate ten days from that date, and that the post office receipt in this instance has the same date stamped on it as appears on the form of notice; that in this particular case he was the one who put this notice in the mail, took it to the post office and received from the post office a certificate of mailing, and then made a personal certification that he had placed it in the mails and then placed a copy in his files. A copy of the notice of cancellation, addressed to the appellee at the address shown in the policy, signed by Mc-Williams for appellant, was admitted in evidence. This bears McWilliams’ certification that on January 23, 1962 he personally placed the original notice of cancellation and termination of insurance in an envelope addressed as shown on the notice and deposited it with sufficient postage affixed for mailing in the United States Post Office at Houston, Texas. Attached to the notice is a .Government Form 3817 acknowledging receipt from Bankers Insurance Company, Houston, Texas, of one piece of ordinary mail addressed to ap-pellee (at the address shown in the policy) and bearing the rubber stamp impression showing the date of January 23, 1962. He further stated &at he knew he had mailed the notice to appellee because he remembered the circumstances, which were that appellant was cancelling, at one time all of a certain type of business produced by Gray, some' seventeen or eighteen policies, and that appellee’s policy was among them.

Taking the position that this evidence establishes beyond question that the notice was duly mailed, appellant urges us to reverse and render the judgment in its favor on the authority of cases like Texas Casualty Ins. Co. v. McDonald, Tex.Civ.App., 269 S.W.2d 456, no wr. hist. In that case the policy contained a provision for cancellation by the company almost identical with that in the policy now before us, and it was established by the testimony of two of the insurer’s employees that the notice was mailed to the insured at the address given in the policy and a post •office receipt on Form 3817 was in evidence “to corroborate the testimony.” In that case the appellee and his wife testified that they did not receive the notice but, as pointed out by Mr. Justice Pope of the San Antonio Court of Civil Appeals, the facts regarding the mailing “are otherwise unquestioned, unimpeached and unequivocal.” We cannot say the same about the evidence in the case now before us.

There were several circumstances in evidence which, taken together, in our opinion preclude, the facts concerning the mailing ■of the notice from being “unquestioned, un-impeached and unequivocal.” For instance, McWilliams testified that at the same time he mailed the notice to appellee he mailed a copy thereof to the Quaker Employees Federal Credit Union and a copy to the local broker, Gray. However, there was evidence that neither appellee nor the Credit Union received such copies. There was no evidence as to whether Gray did or did not receive one.

Although McWilliams had testified on •direct examination without equivocation that he had properly mailed the notice to appellee, on cross-examination he admitted that he had ho independent recollection of doing so and had to refresh his memory thereabout by referring to 'his records, including the certificate which he had made on the day of the mailing.

McWilliams had als.o testified that it was customary, when an insurance policy was cancelled for any reason, for the unearned premium to be sent to the local agent or broker who had produced the business, who in turn would forward the proper amount to the insured; that in this instance, since a number of policies written by Gray were cancelled at the same time, the rebate on all of the cancelled policies was made to Gray in one check, intimating that appel-lee should look to Gray for the refund of unearned premium on his cancelled policy. However, appellee testified that after he filed this suit another policy which had been issued to him by appellant, covering another vehicle, was cancelled by appellant and that notice of the cancellation and a check covering the amoúnt of unearned premium were received by him directly from appellant’s representative, McWil-liams. He also testified that, although the purported cancellation of the policy sued on had been made in January 1962, he had not received his refund at the time of trial which was in December 1963, nearly two years later. It is noted in this connection that the policy provides that if the cancellation is by the company premium adjustment may be made either at the time of cancellation or as soon as practicable after cancellation becomes effective, but that payment or tender of the unearned premium is not a condition of the cancellation. Nevertheless, the evidence of a failure of appellant for nearly two years to make a premium adjustment may be said to be a circumstance which raises some degree of doubt as to whether the notice of cancellation was mailed.

While no one of these circumstances, standing alone, would iñ our opinion be sufficient to create a jury issue as to whether the notice of cancellation was in fact mailed, we hold that all of them together constituted some evidence of probative force, sufficient to require the court to submit the matter to the jury for determination. Therefore, the motion for instructed verdict was properly overruled, and accordingly appellant’s first point of error on appeal is overruled. We hold that the motion for judgment n. o. v. was also properly overruled. Judgment n. o. v. is authorized only when a directed verdict would have been proper. Rule 301, Vernon’s Texas Rules of Civil Procedure. Accordingly the second point of error is overruled. We also overrule the third point of error, which is a “no evidence” point.

The substance of appellant’s fourth point of error, supplemented by its argument thereunder, is that a judgment based on the finding in response to Special Issue No. 2 cannot stand because that finding is contrary to the overwhelming weight and preponderance oí the evidence. We have carefully reviewed the entire statement of facts and conclude therefrom that the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. This makes it necessary for us to reverse arid remand the case for another trial. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellant’s fifth and sixth points of error on appeal complain because the trial court refused to grant a mistrial on.account of alleged improper arguments to the jury by appellee’s counsel. As the same arguments will doubtless not be made on another trial we need not dwell at length on the points. We have carefully considered them and are of the opinion that the court did not err in overruling the two motions for mistrial, and that if any error was committed it was harmless. Rule 434, T.R.C.P. Accordingly the fifth and sixth points are overruled.

Reversed and remanded.

      . There was evidence that the insured truck was mortgaged to Quaker Employees Federal Credit Union, and the policy sued on provided, in part: “Any loss hereunder is payable as interest may appear to the insured and Quaker Employees Federal Credit Union, 520 E. Houston, Sherman, Texas.” No explanation is offered by either party as to why the Credit Union was not a party to this suit.

      . We think Special Issue No. 1, inquiring as to whether appellee received the notice, served no useful purpose and should not have been submitted.


author: COLLINGS, Justice.

text:
    Louis F. LABBE et al., Appellants, v. F. William CARR, Appellee.
    No. 3925.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 27, 1964.
    Rehearing Denied Jan. 8, 1965.

      Sidney P. Chandler, Corpus Christi, for appellants.
    Head & James, Gerald W. James, Corpus Christi, for appellee.
   COLLINGS, Justice.

F. William Carr brought this suit on August 14, 1961, against Louis F. Labbe, Adolph E. Labbe and Emile C. Labbe. Plaintiff alleged that he was owner and operator of a leasehold estate existing by virtue of an oil and gas lease on certain described land in Duval County dated September 24, 1945, and on that date executed and delivered by Julia Labbe Nolan and others, individually and as agent of the State of Texas, lessor, to John T. Turnham as lessee; that Turnham assigned said lease to plaintiff on May 16, 1952. Plaintiff further alleged that a commercial oil well was drilled on the lease before he acquired it and that he has ever since, except as hindered and prevented by defendants, been producing oil therefrom under the terms of said lease, and as required thereby. Plaintiff alleged that defendants denied his ownership of said lease and the oil well and oil produced thereon and claimed ownership of same for themselves; that defendants have interfered with and interrupted the operation of said lease and well in numerous ways, including threats of physical violence, claiming that the lease has terminated as to plaintiff. Plaintiff sought injunctive relief praying that defendants be temporarily and permanently enjoined from in any manner interfering with plaintiff’s right of possession of said lease, well and oil produced therefrom.

Defendants answered by a general denial and further stated that plaintiff’s allegation that he was the owner and operator of the lease is false; that plaintiff failed to drill and operate the lease as required, and abandoned the lease and well more than four months before the filing of this suit; that after such abandonment defendants operated said well and lease and had to spend approximately $1,000.00 on the repair of equipment thereon; that plaintiff on April 11, 1961 notified appellant Emile C. Labbe that he, Carr, would not continue to operate the lease and directed appellants, if they desired, to make needed repairs on equipment on the well and operate the lease themselves; that appellants did make such needed repairs and produced oil from the well.

This is the third appeal of this case. The first appeal was from a temporary injunction granted by the court which was affirmed in Labbe v. Carr, 352 S.W.2d 860, Texas Civil Appeals, San Antonio, (Writ Ref. N.R.E.). Thereafter the trial court granted plaintiff Carr’s motion for summary judgment based solely upon the pleadings. On the second appeal that judgment was reversed and remanded in Labbe v. Carr, 369 S.W.2d 952, Texas Civil Appeals, San Antonio, (Writ Ref. N.R.E.). Additional pleadings were filed and upon another trial before a jury the court at the close of the evidence took the case from the jury and rendered judgment for Carr on all issues in the case except for an award to the defendants in the sum of $915.00. The defendants have appealed.

The record on this appeal shows that the land involved is school land and that the original lease upon which appellee Carr’s ownership in the leasehold estate rests was executed on September 24, 1945 pursuant to the relinquishment act, Articles 5367 et seq. by members of the Labbe family, individually and as agents of the State of Texas, lessor, to John T. Turnham as lessee. Appellants state that they do not question the validity of this original lease and are not trying to have it declared invalid. The record further shows that Turnham on May 16, 1952 assigned the lease to appellee F. William Carr. It is undisputed that prior to the time of such assignment a commercial oil' well had been drilled on said lease and said well has at all times since been producing oil in compliance with the requirements of the original lease.

In several points appellants question the validity of the assignment to Carr and his right to claim thereunder. Appellants urge that the court erred in rendering judgment for appellee because the land involved is State land and since the assignment of May 16, 1952 from Turnham to appellee was not filed in the State Land Office within sixty days after the date thereof as required by Article 5349, Vernon’s Ann.Tex.Civ.St, such assignment became void. We overrule this point. Article 5349 is not here applicable. The lease and the transfer in this case were pursuant to the Texas Relinquishment Act, Articles 5367 et seq., and those articles do not provide for the filing of assignments in the General Land Office. Hill v. Provine, Tex.Civ.App., 260 S.W. 681.

The assignment from John T. Turn-ham to F. William Carr contained the following provision:

“Notwithstanding any other provision in this assignment to the contrary, should assigneee fail to begin of cause to be begun operations for the drilling of a well upon the above described lands within sixty days from the date hereof and prosecute the drilling of same with reasonable diligence to the depth of 3,000 feet, unless oil or gas is found in paying quantities at a lesser depth, this assignment shall terminate as to all parties, and the interest herein assigned shall revest in assignor.”

Appellants contend that the court erred in entering judgment for appellee because ap-pellee failed to show that he began operations for the drilling of a well upon the land in question within sixty days from the date of the assignment as required therein; that appellee failed to show that he procured production of oil or gas in paying quantities within one year from the date of the assignment as required therein and that, in any event, there are questions of fact for the jury to decide as to whether appellee fulfilled the conditions of the assignment of the lease to him. These points are overruled. The assignment was from John T. Turnham to appellee Carr and the breach of a provision, if any, of the assignment which under its terms would result in a termination of or the right to terminate appellee’s interest therein was personal between Turnham and appellee. Appellants have no right under the original lease, or under the assignment entitling them to bring an action for the termination of appellee’s rights under the assignment. As already noted appellants state that they do not question the validity of the original lease but are attacking only appellee’s rights under the assignment from Turnham.

Appellants further contend that the court erred in entering judgment for ap-pellee, asserting that this is in truth and fact a suit in trespass to try title and that appellee’s right to judgment must rest solely on the strength of his own title; that appellee failed to make proof of his title to the leasehold interest in question and that the court erred in granting him judgment. This is a suit for an injunction against a trespasser and not one in trespass to try title. The case was tried on that theory. The technical rules of pleading, proof and procedure applicable to suits in trespass to try title are therefore not applicable. The effect of what appellants seek to accomplish is to show appellee’s lack of title to the lease by a cancellation of the assignment, and to place the burden on appellee to show good standing and present title under the assignment. Appellants were not parties to the assignment and have no right to seek its cancellation or to require appellee to show his rights thereunder as a prerequisite to the injunctive relief here sought. As previously noted appellants do not question the validity of the original lease. It is admitted that a commercial well was drilled on the lease and has at all times since been a commercial producer. It is undisputed that the lease was assigned by the lessee to appellee. The questions of whether appellee failed to show that he filed the assignment in the land office, and failed to begin operations for drilling or to procure production of oil or gas in paying quantities from such additional operations within one year from the date of the assignment and to otherwise fulfill the conditions of the assignment are therefore not here material.

Even if this should be held to be a suit in trespass to try title, appellee’s title is established by the showing of his prior possession. The record is undisputed that appellee was in peaceable possession of the leasehold in question until appellants force-ably assumed possession thereof. Appellants have not shown a title which is superior to that of appellee. Reiter v. Coastal States Gas Producing Company, (Sup.Ct), 382 S.W.2d 243.

Appellants further contend that in any event there are questions of fact as to whether appellee, acting through his agent, abandoned the operation of the well in question and surrendered said well to appellants on or about April 11, 1961, and that the court erred in not submitting such issues to the jury.

The record shows that appellee F. William Carr had operated the lease and well in question continuously from 1952 to April 11, 1961 and had during that entire period employed appellant Emile C. Labbe to care for and see after such lease and well. As previously indicated it is undisputed that prior to the assignment of the lease to ap-pellee a commercial oil well had been drilled on the lease and that the well has at all times since been producing oil in compliance with the requirements of the original lease. The operation of the well was normal until about April 12, 1961, at which time Charles Boyce, an employee of appellee, had a telephone conversation with Louis Labbe in which Labbe informed Boyce that the well had been off and was not producing and that Boyce stated to Labbe “Well, we will get it fixed like always”; that Louis Labbe thereupon informed Boyce that the Labbes were going to take the well over; that Boyce said “Well, you may have some legal claim, I don’t know, I’m not a lawyer, but I assume that we shall take it to a court of law”; that Labbe then told Boyce “Well, you can’t come on the land, you will be trespassing.” Boyce admitted that to the best of his knowledge he got in touch with National Supply Company and told them that there might be a pump repair on the lease in question but to hold it up because he didn’t know whether they wanted to pay for it or not. He stated that he told the supply company to either hold up the repairing, or hold it until he found out what was going on; that he had gotten a telephone call telling him that he was not supposed to go on the lease; that they retained an attorney, and that it was a “wait and see” situation, but that he didn’t tell anybody to stop all work on the lease. Boyce particularly denied that he told the Labbes that if they wanted to pay the bill for the repair of the pump that they could do so and operate the well. Boyce stated that a check was issued to O.K. Well Service to pay the bill for pulling the pump but that payment was stopped on the check; that the pump was repaired and the bill was paid by Labbe Brothers. Boyce indicated that between April 12, 1961, and the date this suit was filed on August 14, 1961, neither Boyce, Carr or anybody for Carr went back on the lease; that' Boyce believed it was the latter part of July, 1961 before any of the Carr employees attempted to go back on the lease; that they adopted a “wait and see” attitude; that they continued to receive their share of the money for production from the well, and as long as they received this money they did nothing because they were afraid to go back on the lease since Louis Labbe had suggested that if they did they might be shot and they were afraid that the threat would be carried out.

The record further shows that appellant Emile C. Labbe remained on appellee’s pay roll until June 1, 1961 and never actually advised appellee that he elected to terminate his employment, but Labbe did say that he sent the June 1st salary check back to appellants because “we made an agreement with the Carr office” that we would take, over the well and pay all expenses. The record also indicates that on or about May 18, 1961, the Labbes made application to the Railroad Commission to change the name of the well and to place the lease in the name of the Labbes.

The record shows that appellant Louis Labbe admitted that in March or April of 1961, he had a telephone conversation with Mr. Boyce and stated to him, in effect, that the well in question was the property of Labbe Brothers; that he Louis Labbe considered that the lease held by Carr was void and that he so advised Boyce; that no lawyer had advised him that the lease was void or terminated, but that he had read the lease and talked about the matter with his brothers and that they had decided that the! lease was void; that he felt that the lease had terminated back in May, 1953, the year after the assignment of the lease was made, for failure to comply with the terms of the assignment. Louis Labbe admitted that in his telephone conversation with Boyce he had indicated that Boyce or any one working for Carr would be treated as trespassers if they came upon the lease.

When appellee’s receipt of proceeds from production on the well in question was interrupted in July of 1961 and appellee learned of such interruption he employed a. contract gauger to go upon the lease to perform such service and such contractor and his employees continued to perform that service on the lease and well until on or about August 7, 1961, when the contractor’s employee, Will Brown, was threatened by appellants with a shotgun if he came back on the lease. After this threat of violence suit was filed on August 14, 1961 for an injunction to restrain appellants from interfering with appellee’s receipt of proceeds from production on said lease.

Contrary to appellants’ contention, we hold that the evidence introduced in the trial does not raise a fact issue on the question of abandonment. It is held that to constitute abandonment of an oil and gas lease there must be both intention to abandon and actual relinquishment of the enterprise. Whelan v. Shell Oil Company, Tex.Civ.App., 212 S.W.2d 991, (Writ Ref.). Although the evidence may indicate a suspension of operation of the lease it, does not show an intention to abandon, but that any suspension of operation was brought about by the hostile action of appellants, one of whom was appellee’s employee on the lease. It is undisputed that appellee was in peaceful possession of and operated the lease without opposition or question from any source,, producing oil from the well thereon from 1952 until the spring and summer of 1961 when appellants asserted ownership of the lease and well and started a course of interference with appel-lee’s possession, operation of the lease and enjoyment thereof, and actually threatened physical violence to appellees’ representative on the lease.. It is held that the fact that a lessee suspends development on. a lease until the lessor recedes from an unwarranted position is no ground for striking down the lease unless an intention on the part of the lessee to abandon is shown. Of course'appellants are not lessors of the leasehold estate involved, nor are they assignors thereof to appellee, but they seek to enforce rights which belong only to the lessor or to appellee’s assignor. 42 Tex. Jur.2d 552; Lane v. Urbahn, Tex.Civ.App., 265 S.W. 1063, (Dis. W.O.J.). Kothmann v. Boley, 158 Tex. 56, 308 S.W.2d 1; Adams v. Cannan, Tex.Civ.App., 253 S.W.2d 948; Wheelock v. Batte, Tex.Civ.App., 225 S.W.2d 591; Morgan v. Houston Oil Company, Tex.Civ.App., 84 S.W.2d 312; Shell Oil Company v. Goodroe, 197 S.W.2d 395. See also Mitchell v. Brockenbush, Tex.Civ.App., 363 S.W.2d 166, (Ref. N.R.E.). In the last cited case Wisdom v. Minchen, Tex.Civ.App., 154 S.W.2d 330, (Writ Ref.), is cited and quoted from as follows:

“In Morgan v. Houston Oil Company, Tex.Civ.App., 84 S.W.2d 312, 314, it was held: ‘It is well settled that when a lessor determines to forfeit or cancel an oil and gas lease, and puts the lessee on notice thereof, he cannot complain if the latter suspends operations under the contract, pending the determination of the asserted right of the lessor to forfeit or cancel, (cases cited)’. The owners of the working interest were not bound therefore to continue after such notice of forfeiture to develop the lease, and the lease will not be held to have expired because they did not continue such development.”
In 42 Tex.Jur.2d page 551 it is stated:
“An intention to abandon may be evidenced by any act legally sufficient to vest or divest ownership. Thus, the length of time during which operations have been suspended, the acts of the lessor, and the acts and intentions of the lessee are all material facts to be considered in determining whether or not the lessee has abandoned the leasehold. However, the question as to whether a lessee intended to abandon his lease is to be determined primarily from his conduct, independently of what he claims his mental attitude to have been.”

Appellants’ points of error are all overruled. The judgment is affirmed.


author: BELL, Chief Justice.

text:
    W. C. HAMMETT, Independent Executor, Appellant, v. Lawrence ARNIM, Appellee.
    No. 14475.
    Court of Civil Appeals of Texas. Houston.
    Dec. 17, 1964.
    W. E. Barron, Navasota, and Joe J.. Newman, Houston, for appellant.
    Lawrence Arnim, Houston, for appellee-
   BELL, Chief Justice.

The trial court, after trial to the court without a jury, rendered judgment against appellant in his capacity as Independent Executor of the Estate of H. V. Hammett,. Deceased, for $500.00. This amount represents what the court felt was a reasonable-attorney’s fee.

We have reached the conclusion that there is no evidence to support the allowance of an attorney’s fee.

The petition of appellee alleges that in 1958 H. V. Hammett, the testator employed appellee to write Mr. Hammett's will and that appellee did so. It is then alleged that the testator left the-will .with-appellee-“with' certain instructions and directions on the probating of said will,” upon the death of testator. Then follow the allegations that, testator died April 26, 1962, and on April 30 appellee filed an application in the County Court of Harris County to probate the will and that on May 17, 1962 the will was admitted to probate. He also alleged he advanced the sum of $50.00 as a deposit for costs when the application for probate-was filed. Prayer was for the recovery of the $50.00 and a reasonable attorney’s, fee of $5,000.00.

The evidence shows that appellee,, without any authorization from appellant,, or anyone else having an interest in the estate which would authorize them to offer the will for probate, filed the application to probate the will. Nowhere is there evidence that anyone employed or authorized. appellee to act. We suspect that appellee proceeded to act under those “certain instructions and directions” which appellee alleges the testator gave him. There is, however, no evidence of any contract made between appellee and the testator. There ■could be none given by appellee, over objection of appellant, because of Article 3716, Vernon’s Ann.Tex.St. While no such contract was specifically pled, appellant, when it appeared that appellee was going to testify to something said by the testator, objected and the objection was sustained. The evidence shows that before the application was filed appellant tried to get the will from appellee and appellee “would not turn over the will to Mr. W. C. Hammett” because appellee had given his solemn promise not to do it.

On May 8, 1962, before the will was admitted to probate, appellant wrote appel-lee a letter informing appellee that appel-lee had not been employed by him to probate testator’s will. This letter was received by appellee before he proceeded to have the judgment entered probating the will. On the same date appellant wrote the judge of the Probate Court of Harris. County a letter stating he had been informed by appellee that appellee was probating the will but he had not employed appellee. He also stated he was in the process of having the will probated in Grimes County. This letter was placed in the file of the estate pending in the County Court. Appellant had employed Mr. W. E. Barron to handle the estate. No pleading was filed by appellant, until after ap-pellee had secured an order admitting the will to probate, which attacked appellee’s authority. However, appellant’s counsel, Mr. Barron, later, on learning the will had been admitted to probate, had the estate moved to Grimes County. After the proceedings were thus removed, appellant qualified as independent executor by taking the prescribed oath.

There is no contention that appellant employed appellee to do anything with regard to probating the will. Appellee does seem to contend he is entitled to recover against the estate a reasonable attorney’s fee for the services rendered by him, apparently on the theory that the testator told him to probate the will. In other words, he apparently relies on an implied contract.

There certainly can he no implied contract as between testator and appellee. For there to be an implied contract to pay the reasonable value for services rendered or work done, the person rendering the services or performing the work must do so with knowledge of the party sought to be charged under circumstances from which it may be implied that the party sought to be charged intended that the services be rendered and thus knowingly accepted the benefits. If he knowingly accepted the benefits when he was in a position to refuse to do so he must pay. Certainly the testator, who was dead, did not, before his death, so far as the record shows, cause the services to he rendered.

Insofar as action by appellant is concerned, the record affirmatively shows that he expressly told appellee he wanted him to do nothing with regard to probating the will. Under such circumstances, no contract with the estate acting through appellant could be implied.

The judgment of the trial court is reversed and judgment here rendered that appellee take nothing.


author: MASSEY, Chief Justice.

text:
    John B. KOLLMAN, Appellant, v. Wyman W. HUNNICUTT, Appellee.
    No. 16580.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 4, 1964.
    D. C. Gandy, Fort Worth, for appellant.
    David L. Boren and Ernest May, Fort Worth, for appellee.
   MASSEY, Chief Justice.

This is a usury case. Wyman W. Hun-nicutt alleged that John B. Kollman had exacted of him interest in excess of 10%. Trial was before the court without a jury, and judgment for Hunnicutt was rendered in an amount double that found to have been the interest paid.

Hunnicutt desired to enter the retail automobile business and Kollman agreed in writing with him on a plan whereby the financing necessary to the enterprise would be made available. Incident to the plan an account of Kollman was opened in a prescribed bank, the account to be made available for Hunnicutt’s needs in purchasing automobiles. Ten thousand dollars of Koll-man’s funds was used to open the account. Under the contract Hunnicutt was authorized to draw drafts upon the account. However, Kollman was afforded the opportunity to honor or dishonor the drafts so drawn on each occasion. In other words Kollman was free to provide or withhold financing on each individual “car deal” Hunnicutt made, depending upon whether he desired to honor the draft drawn on the account to pay for vehicle or vehicles purchased. Kollman would honor the drafts if in proper form and well secured by title certificates. These certificates would be checked and retained by Kollman pending Hunnicutt’s repayment of the principal indebtedness created by each individual transaction. Each draft was to be repaid “in full” within not less than sixty days, and Hunnicutt was obliged to pay, in addition and at the time of principal reimbursement, amounts specified on a schedule of “draft fees”. Depending upon draft amounts said “draft fees” were prescribed to be $12.50 to $20.00 if paid within 30 days, — $10.00 more for any forbearance extended 30 days. The minimum of “draft fees” per month was prescribed to be $200.00. The fee for any draft dishonored (turned down) was $10.00. The minimum “draft fee” for the largest amount permitted under the contract, $1,000.00, would be $30.00 for sixty days use thereof. If the draft should he for $30.00 (the smallest shown to have actually been drawn) the “fee” would be $22.-50 for detention of Kollman’s money sixty days.

The evidence is that Kollman deposited $10,000.00 to his own credit in the account contemplated by the contract. Hunnicutt used the account, under the provisions of the contract, for 13½ months. Within not more than that period Kollman was returned his $10,000.00, with $2,335.00 in addition — as calculable “draft fees” paid under the contract. If the $2,335.00 was interest there is no doubt that it was usurious interest, since it exceeded 10% as applied to what would be the principal.

The points of error brought forward on appeal are such that entitle us to proceed upon the premise that there is no question of the propriety of the amount of the judgment rendered by the trial court, if that court was correct in holding that Kollman did, in fact, exact usurious interest of and from Hunnicutt. Except for one point in which complaint is made because of the exclusion of evidence tendered on trial, the questions to be resolved are whether the evidence established Hunnicutt’s cause of action under Vernon’s Ann.Tex.Civ.St., Art. 5073.

Art. 5073 provides, relative to situations in which a greater rate of interest than ten per cent shall have been received or collected, that “the person paying the same * * * may by an action of debt recover double the amount of such interest from the person, firm or corporation receiving the same.”

On trial both Hunnicutt and Kollman disclaimed any intention to charge or pay usurious interest. If usury were criminal, and Kollman on trial charged with the crime, such testimony bearing upon the parties’ mutual innocence of criminal intent might be important. But this is a civil case; all that is involved is money. In some usurious transactions neither the lender nor the borrower is guilty of intent to violate the usury law. Considered in reference to our usury laws, however, oral evidence given in denial of such intent is without force in the face of proven contractual provisions, the necessary effect of which provides for usurious interest. In such instances the “intent” is apparent: res ipsa loquitur. See Campbell v. Oskey, 239 S.W. 332 (El Paso Civ.App., 1922, no writ), and cases cited. In the case before us it is not to be doubted that if the “financing” provided by Kollman was a loan, and the compensation therefor, provided by contract, “for the use, forbearance, or detention of money”, it is indeed a usury case.

Kollman contends that the transaction was one under which the parties entered into a joint venture, or alternatively, one in which the compensation provided by contract was for the extension or loan of Kollman’s credit to Hunnicutt. Koll-man further suggests that charges he made in connection with the individual transactions, in addition to what part of the total compensation might properly constitute “interest”, would not render the whole transaction usurious when made in good faith and intended as compensation for the risk, trouble and expenses incurred.

In Campbell v. Oskey, 239 S.W. 332, supra, reference is made to Jackson v. Cassidy, 68 Tex. 282, 4 S.W. 541 (1887), with quotation therefrom as follows: “ ‘In the ordinary affairs of life, money advanced upon such securities, with the understanding that both principal and interest may be collected by realizing upon the securities; is considered a loan. A debt is created; otherwise the party advancing the money has no right to recover principal together with interest on the amount advanced. Having the full effect of a loan, it must be treated as such, considered in reference to our usury laws, otherwise the few features of the transaction which give it a different appearance would furnish a device by which these laws might be evaded altogether.’ ” On the aspect of joint adventure we consider the language appropriate to the instant case, certainly entitling the trial court, as the fact finder, to decide there was no joint venture.

Kollman having made the loan (or having himself supplied the “financing”), the trial court was obviously entitled to decide that the transaction was not one wherein the compensation provided was for the loan or extension of Kollman’s credit. Greever v. Persky, 140 Tex. 64, 165 S.W.2d 709 (1942).

Kollman has cited Oil City Motor Co. v. C. I. T. Corporation, 76 F.2d 589, 104 A.L.R. 240 (10th Cir. 1935). In that case automobiles were in the possession of the automobile dealer, hut the relation of bailor and bailee was held to exist with the dealer a trustee for the corporation holding title. It was obvious that the automobiles were acquired upon the credit of the corporation not the dealer. We do not consider the case applicable authority. See, however, the annotation following the opinion at 104 A.L.R. 245, “What amounts to sale of credit as distinguished from a loan as regards usury law.”

As applied to the “charges” as compensation for the risk, trouble and expenses incurred having been made in good faith by Kollman it is readily perceived from the record that they merely amounted to an investigation of the value of security pursuant to each “purchase” draft transaction. This is to be treated as constituting part of the expenses incurred in making or carrying a loan, for which a lawfully charged rate is itself to be considered as providing adequate compensation. 58 Tex.Jur.2d 107, “Usury”, § 31, “(Commissions and Other Expenses Incident to Loan) — In general.” Our circumstances do not fit into those of the cases found beginning at p. 896 “Charges for accepting and paying drafts”' under 21 A.L.R. 797, Anno.: “Usury: expenses or charges incident to loan of money.” (See also supplements at 53 A.L.R. 743, 63 A.L.R. 823, and 105 A.L.R. 795.)

We have no doubt but that the trial' court’s factual findings and factual conclusions, as underlying and supporting the-judgment rendered, if necessary to be resolved as questions of fact, were all and', several raised and supported by the evidence in the record, — and the court’s decisions thereof were not against the weight and preponderance of the evidence.,

On the trial Kollman called' a banker to testify to “the custom and operation: of the floor plan business in Tarrant County, Texas”. Objection thereto was sustained and the testimony was not allowed. No-bill of exceptions was made exhibiting the testimony tendered. Aside therefrom it is-elementary that evidence of the practice of moneylenders in respect to any custom or system whereby usurious interest is exacted' would be inadmissible to validate any transaction under which such has been accomplished. Our usury statutes were enacted' by the Legislature. Evidence of any usage- or custom in contravention of statute would be inadmissible for the purpose of evading or avoiding the provisions thereof. We-overrule the point of error whereby complaint is made of the court’s exclusion of such evidence.

Judgment is affirmed.


author: SELLERS, Justice.

text:
    Juanita MAY, Appellant, v. Leona May CURRY et vir, Appellees.
    No. 100.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 3, 1964.
    Rehearing Denied Jan. 14, 1965.
    Charles F. Umphress, Dallas, for appellant.
    Henry Stollenwerck, Dallas, for appel-lees.
   SELLERS, Justice.

This is a trespass to try title case brought by Leona May Curry and husband, Allie Curry, against Juanita May, individually and as community survivor of Gaston Plummer May, involving the title to a one-half interest in certain land belonging to the estate of Gaston P. May, deceased. The facts being undisputed, the court entered summary judgment for Leona May Curry for the title and possession of a one-half interest to said property from which judgment the defendant has duly prosecuted this appeal.

On August 14, 1920, John L. May executed his Deed of Adoption, adopting Jocie Leona Riley as his lawful heir. This deed was recorded on August 16, 1920, as provided for in Deed of Adoption. Jocie Leona Riley, adopted daughter of John L. May, is the same person as Leona May Curry, the appellee herein. John L. Maj is the father of Gaston P. May who died intestate on May 6, 1963, and at the time of his death was the owner of the property herein involved which was his separate property. Gaston P. May died, survived by a wife but no children, no brothers or sisters, or neither father nor mother. The title to the property revolves itself into a dispute between the surviving wife of Gaston P. May and the adopted daughter of his father, the appellee herein, and this presents the legal question of whether the appellant herein is entitled under the law of descent and distribution to inherit from the natural son of her adoptive father. In other words, does one adopted by Deed of Adoption which only made her an heir of the adopting parent at the time she was adopted authorize her to inherit from her adoptive father’s son by marriage under the laws of this state in force on the date of the death of the son who died intestate on the 6th day of May, 1963.

The appellant in a very able brief in which the attorney analyzes the law under the old Deed of Adoption, as well as the cases construing the present adoption statutes, and contends that the present statutes, if they give the appellee the right to inherit from her adopted parent’s son, would he a retroactive law and void under the Constitution, Article 1, Section 16, of the Texas Constitution, Vernon’s Ann.St., and Article 1, Section 10 of the Constitution of the United States. He likewise makes other attacks on the present adoption statutes here involved insofar as they undertake to confer on the appellee the right to inherit under the facts in this case. This court has concluded that we are unable to sustain any of appellant’s contentions due to th.e interpretation of the law on the subject in the case of Rothman v. Gillett, 315 S.W.2d 956, by the Fort Worth Court of Civil Appeals in which writ of error was refused, no reversible error. In this case the Fort Worth Court had before it the direct question of the right of adopted children under Deeds of Adoption to inherit from collateral kin of the adopted parents under the present statutes of adoption by legal proceedings. After reviewing the same points made here by appellant, the court arrived at the conclusion that the adopted heirs were entitled to inherit from the collateral kin of the adopted parents. We quote from this case as follows:

“The statute which was 'in effect on the material date was Vernon’s Ann. Tex.St., Article 46a, under Title 3, ‘Adoption’, an article dealing with proceedings for adoption, hearing and rights of adopted children, and in particular Section 9, ‘Status of adopted child’. The section was an amended portion of the article as theretofore existed, the amendment having been adopted pursuant to Acts 1951, 52nd Teg., p. 388, ch. 249, sec. 3. The effect of the amended Section 9 was to provide that adopted children should, pursuant to adoption decree, be treated and considered in all respects under the law as though they were the natural born children of adoptive parents. . Specifically, it was provided that their inheritance rights would be the same as though they were natural born children of adoptive parents, including the right to inherit from collateral kindred of such adoptive parents.
“At first glance conditional provisions and rights granted under said Section 9 .are the opening words of the paragraph in which they are contained, to-wit: ‘When a minor child is adopted in accordance with the provisions of this Article, * * *.’ (Emphasis added.) It is the presence of these words which occasions the legal question presented to us as part of appellant’s points on appeal. Appellant contends that in view of the fact that appellees who had been adopted by deeds of adoption, all recorded prior to 1920, executed in accordance with the provisions of old, outmoded and superseded statutes of adoption and indeed before the Article itself, amended or not, was ever any part of the law of this state, they are not to be permitted .to inherit from collateral kindred as.provided in cases of adoption according to the statute of 1951. Contrarily, the interested ap-pellees contend that the amendment extended to and included them despite the fact that their adoptions were not pursuant to proceedings therein outlined and were formalized long prior to the date it became law.
“Under the record made in the case there is no question but that all these appellees were ‘lawfully adopted children’ of their adoptive parents. Their status in this respect was occasioned by and incident to the form and procedure of their adoption, and under and by reason of the provisions of V.A. T.S., Art. 46b (as originally enacted and as amended), which validated ■their adoptions and the instruments under which their adoptions were intended to be effected.
We are of the opinion, and so hold, that in the enactment of the 1951 statute the Legislature intended for the appellees and others in like situation to come within the terms and provisions of Section 9 of Art. 46a, and be entitled to all the inheritance rights therein recited, despite the presence of the words upon which appellant predicates his contrary contention. In view of the fact that the Probate Code, V.A. T.S., became a part of our Texas law on January 1, 1956, pursuant to Act of the Fifty-fourth Legislature, — and in view of the fact that Section 40 of the Probate Code provides, ‘For purposes of inheritance under the laws of descent and distribution, an adopted child shall be regarded as the child of the parent or parents by adoption, such adopted child and its descendants inheriting from and through the parent or parents by adoption and their kin the same as if such child were the natural legitimate child of such parent or parents by adoption * *

We are convinced that the court here gave the present statutes a retroactive effect in order to reach its conclusion. 2 C.J.S. Adoption of Children § 63. But this does not render the statutes void for the reason no vested right of the adopted child or adopted parent were destroyed. McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898:

“A statute cannot be said to be a ‘retroactive law’ prohibited by the Constitution, unless it can be shown that application of the law would take away or impair vested rights acquired under existing law. Vernon’s Ann.St. Const, art. 1, § 16.”

In Volume 2, American Jurisprudence, 2nd Edition, Sec. 109, p. 951, the Rothman case is cited as holding that the law in effect at the time of the death of the intestate controls:

In most cases, however, in which the question has arisen, the statute in force at the time of the death of the intestate has been held to be controlling, and has been applied in determining the right to inherit in cases of adoption effected prior to the enactment or amendment of the statute.”

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


author: BARROW, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Johnnie A. JANAK, Appellee.
    No. 14163.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 16, 1964.

      Groce & Hebdon, Charles L. Smith, San Antonio, for appellant.
    Putman & Putman, San Antonio, for ap-pellee.
   BARROW, Justice.

Johnnie A. Janak recovered judgment from Texas Employers’ Insurance Association, based upon a jury verdict, in a suit brought under the Texas Workmen’s Compensation Act, for injuries sustained in an automobile collision resulting in permanent partial incapacity. Appellant complains solely of the jury finding that Janak was in the course of his employment. Our opinion rendered on November 20, 1963, has been reversed by the Supreme Court and the cause remanded for further consideration of appellant’s point of error that the jury’s answer to Question No. 1, that Janak’s injuries were sustained in the course of his employment was so contrary to the overwhelming preponderance of the evidence as to be manifestly wrong and unjust. Janak v. Texas Employers’ Ins. Ass’n, 381 S.W.2d 176 (Tex.1964), reversing Tex.Civ.App., 374 S.W.2d 744.

The evidence relating to this issue has been fully set forth in the prior opinions in this case and no useful purpose would be gained by restating same. We have examined the entire record in the light of the proper rule of law as stated by the Supreme Court, supra, and it is our opinion that this jury finding is not so contrary to the overwhelming preponderance of the evidence as to require us to set it aside.

The judgment of the trial court is therefore affirmed.


text:
    Mauro GARCIA et al., appellants, v. Homero BARRERA, Appellee.
    No. 3921.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 20, 1964.
    Rehearing Denied Jan. 8, 1965.

      J. Marvin Ericson, Corpus Christi, for appellants.
    Lloyd, Lloyd, Dean & Ellzey, and E. G. Lloyd, Jr., Alice, for appellee.
   GRISSOM, Chief Justice.

Homero Barrera offered the will of Otilia G. de Olivarez, deceased, for probate and sought to be appointed independent executor of her estate. Mauro Garcia and others, who alleged they were heirs of the deceased, opposed probate of the will, alleging that Mrs. Olivarez lacked testamentary capacity and that it was procured by undue influence. Upon a trial in the District Court, after introduction of all the evidence and after both sides had closed, the proponent filed a motion to strike certain pleadings of contestants and for an instructed verdict. The contestants then asked leave to file a trial amendment. The proponent’s motion was sustained, contestants’ motion was overruled, the jury was instructed to return a verdict for the proponent, which it did, and judgment was rendered for proponent. The contestants have appealed.

Contestants say the court committed reversible error in refusing to permit them to file a trial amendment at the time and under the circumstances mentioned. Assuming, without deciding, that refusing permission to amend was not within the discretion of the trial court, probable injury is not shown. It is not shown what would have been contained in the proposed amendment. There was no effort to introduce additional evidence. There is no showing that additional evidence would have been produced. All the evidence was to the effect that testatrix was of sound mind. There was no evidence of undue influence. Therefore, the proponent was entitled to an instructed verdict. There is no showing that contestants were harmed by the refusal to permit the amendment.

Contestants also say the court committed reversible error in instructing a verdict for the proponent because the evidence raised issues of undue influence and lack of testamentary capacity. The proponent’s counter points are to the effect that, although contestants alleged they were the heirs at law of the testatrix and therefore interested in her estate in the event the will was not effective, that there was no evidence thereof; that there was no evidence of undue influence and that it was undisputed that Mrs. Olivarez had testamentary capacity at the time she executed the will. Contestants point out no evidence raising the issues of undue influence or want of testamentary capacity. All the evidence is to the effect that, although Mrs. Olivarez had been sick for a long time and died on the day she executed the will, her mind had not been affected by her physical illness and she was mentally alert when she executed the will. The contestants’ medical witness, who attended her the day before and at the time she executed the will, so testified. We overrule contestants’ contentions that the court erred in refusing to submit the issues of testamentary capacity and undue influence to a jury.

Contestants say the court erred in admitting the testimony of Charles Hornsby, Rebecca C. Barrera and Hilda Barrera, witnesses for the proponent. When the deposition of Mr. Hornsby was taken he was cross-examined in detail and at length by contestants concerning transactions with deceased. No objection was then made to his testimony. On the trial, said cross-examination was introduced by contestants. Appellants thereby waived objection to said testimony based on Article 3716. Cox v. McClave, Tex.Civ.App., 22 S.W.2d 961, 962, (Writ Dis.) ; Reynolds v. Porter, Tex.Civ.App., 54 S.W.2d 1086, 1089; Smith v. Smith, Tex.Civ.App., 257 S.W.2d 335, 338, (Ref. N.R.E.); Walkup v. Stone, Tex.Civ.App., 73 S.W.2d 912, 914; Dunn v. Peters, Tex.Civ.App., 126 S.W.2d 997, 1000. Contestants’ objection to the testimony of Rebecca C. Barrera, wife of proponent, Homero Barrera, and Hilda Barrera, wife of Homero’s brother, was based on Article 3716. Neither was a party to the suit; neither could inherit from. Mrs. Olivarez, the aunt of their husbands, if her will should be set aside. Their husbands, not said wives, were her heirs and anything they might have inherited from Mrs. Olivarez would have been their separate property. Their testimony is not prohibited by Article 3716. Mitchell v. Deane, (Tex.Com.App.), 10 S. W.2d 717.

Contestants offered a lease dated October 24, 1957, for the purpose of showing the difference in Mrs. Olivarez’ signature then and at the time she executed the will,, on June 3, 1961. The refusal to admit said instrument showing her signature in 1957, did not constitute reversible error. It could only tend to show the physical infirmity of the testatrix. That was admitted. It was also admitted that she signed the will.

Reversible error is not shown. The judgment is affirmed.


author: SHARPE, Justice.

text:
    Roy IVES d/b/a Ives Real Estate, Claudia Barth, et al., Appellants, v. Edward R. URBAN, Appellee.
    No. 38.
    Court of Civil Appeals of Texas. Corpus Christi.
    July 29, 1964.
    Rehearing Denied Dec. 3, 1964.
    Second Motion for Rehearing Denied Dec. 31, 1964.

      Elwood Gaus, Yoakum, Fly, Cory & Moeller, Victoria, for appellants.
    Richard Henderson, of Guittard & Henderson, Victoria, for appellee.
   SHARPE, Justice.

This action was instituted by Edward R. Urban, appellee, hereafter referred to as “buyer”, against Roy L. Ives, one of the appellants, hereafter referred to as “Ives”, for recovery of $2,700.00, representing earnest money held in escrow by Ives as a real estate broker in connection with a proposed sale of 160 acres of land situated in DeWitt County, Texas, owned by John T. Prewitt Estate, (Claudia Barth, et al.), hereafter referred to as .“sellers”.

In addition to an answer, Ives filed a bill of interpleader and deposited $2,700.-00 in the registry of the court. He claimed the right to recover $1,375.00 of said amount, and if, not so entitled, prayed that he be allowed attorney’s fees of $200.00 on his interpleader.

The sellers, consisting of Claudia Barth and sixteen other persons, filed a plea of intervention in which it was alleged that appellee had forfeited the said $2,700.00 and that they should recover that portion of it which remained after the claim of Ives was satisfied.

The trial court rendered judgment that appellee recover judgment against Ives and the sellers for the $2,700.00 deposited in the registry of the court; that appellee recover from sellers interest on said $2,700.00 from September 4, 1962, until paid; that Ives recover $125.00 for attorneys fees on the bill of interpleader, to be taxed as costs; and that the costs be taxed against sellers. Ives and the sellers have appealed.

Although appellants urge eight points of error, it appears that unless their points one and two are sustained, the judgment should be affirmed. Point one, in substance, asserts that the trial court erred in holding there was never a valid contract of sale between the parties; point two, that the trial court erred in holding that if a contract of sale was consummated, • the sellers failed to comply therewith. We have concluded that appellants’ points one and two are not well taken. Appellee’s counterpoints to the effect that the proposed contract never became binding on him and that, even if there was a contract, sellers failed to show a good and marketable title to the land involved, must be sustained.

At the request of appellants, the trial court filed seventeen findings of fact and two conclusions of law. Conclusion of law number one is that there was never a valid contract of sale between the parties. Conclusion of law number two is, in substance, that if there was a valid contract of sale between the parties, appellee, nevertheless, was entitled to recover his earnest money because the sellers failed to comply therewith for the reasons hereafter more fully discussed.

The trial judge in this case found, among other things, “That plaintiff (appellee) signed the contract and made the deposit with the agreement and understanding that it would not be binding unless executed by Mrs. Maybelle Brown, as agent and attorney in fact for the owners of the John T. Prewitt Estate” (Finding of Fact No. IV); and “that such contract was never executed by Mrs. Maybelle Brown, nor any other owner of the John T. Prewitt Estate” (Finding of Fact No. V). It further appears from Finding of Fact No. VI that the attorney- for the sellers, instead of returning the contract of sale to the buyer, duly executed by sellers or their agent, forwarded to the attorney for the buyer copy of a deed, an abstract and various papers, some of which related to the mental competency of two of the grantors-sellers, with the explanation “that it was all done to see whether a sale was actually possible.”

Appellants contend that an acceptance of the proposed written contract by them was conclusively established, placing reliance on Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855 (1958), which recognizes the rule announced in earlier decisions “ * * * that when a contract between two parties is reduced to writing and signed by one party and expressly accepted orally by the other, it is sufficient to impress upon it the character of a written instrument, and that a written instrument signed by one party and expressly accepted orally by the other becomes a written contract”. However, Ford v. Culbertson also cites the case of Simmons and Simmons Construction Co. v. Rea, 155 Tex. 353, 286 S.W.2d 415 (1956), where it was pointed out that such rule does not mean that a written instrument will be held to be a written contract where one of the parties intended that signing by both parties should be a condition of his assent thereto.

The conclusion of law that there never was a valid contract of sale between the parties is correct and the related findings of fact made by the trial court are supported by evidence; and, together, they compel rendition of judgment in favor of Urban. Under the circumstances disclosed by the record herein, the conduct of the attorney for the sellers did not amount to an acceptance by them of the proposed written contract. The letter from sellers’ attorney transmitting the above-mentioned papers to buyer’s attorney made it clear that “instead of submitting a contract of sale for the many interested parties” another procedure was being followed. This action amounted to an entirely different proposal rather than constituting an acceptance of the instrument which had been executed by Ives and the buyer. It is apparent that the action taken by the attorney for the buyer was in connection with such new proposal which was submitted to determine whether a sale was actually possible. In due time the buyer’s attorney advised the sellers’ attorney that a sale was not possible under the conditions then existing, giving reasons for such position. Such conduct on the part of the buyer’s attorney did not give rise either to waiver or estoppel of the buyer’s right to question the existence of a contract. Owens v. Jackson, 35 S.W.2d 186 (Tex.Civ.App.1931, wr. dism.). Appellants’ point number one, complaining of the holding of the trial court that there was never a valid contract between the parties, is overruled.

It further appears that even if the trial court was wrong in finding and concluding that there was never a valid contract of sale, still, appellee would have been entitled to recover under conclusion of law number two and the related fact findings made by the trial court. In substance, conclusion of law number two is that even if there was a valid contract of sale that sellers failed to comply therewith; that the objection relating to the mental capacity of two of the sellers was valid and the doubt raised thereby rendered the title to the land not good and marketable; that the title to the property was not good and merchantable or shown to be such by the sellers as the contract required; that the buyer failed to consummate the contract because of title defects; that the buyer is entitled to recover his earnest money with interest from date of demand and costs of court.

Findings of fact numbers VII through XVI are related to conclusion of law number two. In substance, these findings are that the buyer’s attorney examined the abstract and other papers furnished by the attorney for the sellers and rendered a written opinion containing objections to the title; that such instruments did not show a good and marketable title to the land in question because of the objections contained in paragraphs 1 through 5 of said opinion, which were valid objections; that after said title opinion was furnished to the sellers’ attorney, there was a discussion of possible methods of curing the objection contained in paragraph 2 of the title opinion, which was directed to the mental capacity of two of the sellers, including the possibility of a binding judicial determination of their capacity; that, thereafter, the attorney for sellers attempted to declare an anticipatory breach of the alleged contract on the ground that the objection as to the mental capacity of the said two sellers was not a valid objection to the title; that the sellers did not make a further tender in connection with such objection or the other objections in said title opinion; that buyer was not furnished with a certificate that the corners of the property had been established by a licensed surveyor, as the contract' provided; that the buyer and his attorney did not waive such objections or certificate; that sellers were not prevented from compliance with the contract or tender thereof by letter from or conversation with buyer’s attorney; that the matter of curing the objection relating to the mental capacity of the said two sellers was still the subject of conversation when sellers’ attorney attempted to declare anticipatory breach of the contract.

It appears that the question concerning the mental competency of two of the sellers caused most of the difficulties in this case. The attorney for the sellers apparently anticipated an objection in such connection by furnishing to the attorney for the buyer various instruments concerning the mental competency of two of the sellers along with the abstract and other papers. It thus appears that the attorney for the buyer was placed on actual notice of histories of mental incompetency on the part of said two sellers. It is further apparent that serious problems were presented because of said facts in the light of such cases as Wright v. Matthews, 130 S.W.2d 413 (Tex.Civ.App.1939, wr. dism. judg. correct) wherein it is held that the deed of an insane person may be cancelled and set aside, even though there be supervening equities of innocent persons without first showing that there is no adequate remedy at law, and that a judgment of sanity or insanity is not res judicata at a prior or subsequent date to that of its determination. The actual fact of insanity of two of the sellers was not at issue but the real question was whether the abstract and other papers submitted to the buyer’s attorney showed a good and marketable title.

The trial court’s conclusion of law number two and the related findings of fact, hereinabove mentioned, furnish an alternative basis for the judgment in favor of ap-pellee, even if there was a completed contract between the parties. It is not necessary to rest our decision upon the question as to the mental competency of two of the grantors-sellers in view of the sufficiently supported findings of the trial court that such subject was still being discussed when sellers attempted to declare an anticipatory breach of the alleged contract, that the sellers made no further offer or tender in connection with curing the other objections raised in the said title opinion, that the buyer had not waived such objections, and the conclusion that the buyer failed to consummate the contract because of title defects. Even if a valid contract had existed between the parties, the above findings establish sellers’ non-compliance therewith and buyer’s right to recover his deposit. Greenville National Bank v. Partain, 52 S.W. 648 (Tex.Civ.App. 1899, n. w. h.).

It appearing that the judgment in favor of appellee is firmly based upon either of the two theories heretofore mentioned, further discussion of appellants’ other points is deemed unnecessary and the same are overruled.

Affirmed.

ON MOTION FOR REHEARING

As a part of their motion for rehearing appellants move for eighteen specific findings which are allegedly findings of fact. Some of such requests are either conclusions of law or mixed conclusions of law and fact. Virtually all of them are extremely general, and are ambiguous and uncertain concerning the dates, places and persons involved. The said requests are denied for such reasons and further because they tend to conflict with the findings, and conclusions stated in our original opinion, or they relate to matters allegedly shown by undisputed testimony and which are available to appellants on further proceedings, without findings or conclusions by this Court. Appellants do not specify the points upon which there is no finding of fact or upon which the findings are insufficient in accordance with Rule 455, Texas. Rules of Civil Procedure, nor do they request us to make findings and conclusions which we consider to be correct in connection with the subject matter of such requests; instead, they insist upon the specifically worded findings submitted by them. We reiterate and adhere to the findings and conclusions of the trial court which we approved in the original opinion instead of making the requested findings which are included in appellants’ motion for rehearing. Blocker v. Brown Express, Inc., 144 S.W.2d 451 (Tex.Civ.App., 1940, writ refused) ; Gregory v. City of Garland, 333 S.W.2d 869 (Tex.Civ.App., 1959, writ refused, n. r. e.).

We find no merit in the matters raised in appellants’ motion for rehearing and the same is overruled.