author: COLEMAN, Justice.

text:
    The STATE of Texas, Appellant, v. C. Roy DAVIS et al., Appellees,
    No. 14145.
    Court of Civil Appeals of Texas. Houston.
    May 23, 1963.
    Rehearing Denied June 13, 1963.

      (Will Wilson was Atty. Gen., when appellant’s brief was filed, Waggoner Carr was Atty. Gen., when the case was submitted) Ben M. Harrison, Joe A. Osborn, J. S. Bracewell, Asst. Attys. Gen., Austin, for appellant.
    Newman & Montgomery, George Newman, Waco, for appellees.
   COLEMAN, Justice.

This suit, a formal trespass-to-try title action, was brought by appellees against the State of Texas for the purpose of quieting title to a mineral interest in certain land located in Matagorda County and to recover royalties previously paid to the State.

Both the State and appellees filed motions for summary judgment. Appellees' motion was granted and this appeal resulted.

In answer to appellees’ petition, the State of Texas filed a general denial, a plea of not guilty, a plea setting up the one year statute of limitation (Sec. 4, Art. 5329, Vernon’s Ann.Civ.St.Tex.), and a plea specifically alleging title to a ⅛ royalty interest in all sulphur, and a Vis royalty interest in all other minerals produced from the land described, by reason of a reservation in the patent to the land issued by the State to appellees’ predecessor in title in 1952.

In their motion for summary judgment appellees alleged superior title to the land by and through a regular and continuous chain of title from the original Peter W. Grayson Grant from the State of Coahuila and the Republic of Texas in 1831, and from the original John Smith One-Third League Grant, George Sutherland, assignee, by virtue of headright certificate No. 983, issued by the Board of Land Commissioners of Harrisburg County, Texas, on October 11, 1839. Appellees contend that they did not base their claim of title to the land on the patent issued to Mabel Ann Davis, Independent Executrix of the Estate of W. G. Davis, deceased, issued on March 26, 1952, pursuant to application and obligation to purchase school land without settlement dated August 5, 1940, and a subsequent award by the Commissioner of the General Land Office on August 5, 1940, to the Estate of W. G. Davis, deceased. Appellees de-raign their title to the land from Mabel Ann Davis, who was the wife of W. G. Davis.

The 1952 patent was issued by the Commissioner of the General Land Office pursuant to the terms of the 1931 Vacancy Act. Acts 42nd Leg., R.S., 1931, Ch. 271, p. 452; Codified as Art. 5421c, V.C.S. Ap-pellees contended that title to the land described had passed out of the State by the patents of 1831 and 1839; that since the State had no title to the land described in the patent of 1952 the patent conveyed nothing and the mineral reservation contained in the patent could not be effective to reserve to the State minerals which the State did not own. They further contended that there could be no question of fact as to the location of the boundaries of the land conveyed by the patents of 1831 and 1839, or of the existence of the vacancy constituting the basis for the patent of 1951, because these questions had been determined in a trespass-to-try title suit in 1906 in the District Court of Jackson County, Texas, Cause No. 800, styled George E. Williamson v. G. H. Newnom et al. It is their contention that although the State of Texas was not a party to this suit, it is bound by the doctrine of Stare Decisis since the case was affirmed by the Court of Civil Appeals, and by the Supreme Court of Texas. The case on appeal is reported as Newnom v. Williamson, 46 Tex.Civ.App. 615, 103 S.W. 656, aff’d Newnom v. Neill, 101 Tex. 42, 104 S.W. 1040. It appears from the opinion of the Court of Civil Appeals that the af-firmance was based on a presumption that, in the absence of a complete statement of facts, the evidence adduced upon the trial supported the judgment of the trial court. The action taken by the Supreme Court cannot be construed as an affirmance of the judgment of the trial court or the Court of Civil Appeals, since their action was on an application for writ of mandamus, which was refused for want of jurisdiction.

In the Newnom case appellant assigned as error the action of the trial court in directing the jury to return a verdict for appellee for the reason that the verdict directed was not supported by the evidence and was contrary to the undisputed evidence. In effect the Court of Civil Appeals held that such assigned errors could not be sustained in the absence of a complete statement of facts.

In the case of Horne v. Moody, 146 S.W. 2d 505, the San Antonio Court of Civil Appeals said:

“As we understand the rule of stare decisis in this State it is one of precedent and authority. It is based upon the statement of a principle, rule or proposition of law by the Supreme Court or the highest court in the State having jurisdiction of the particular case. In a boundary suit the adoption of a particular legal proposition, such as a rule of construction, generally results in a judgment establishing a certain boundary. The doctrine of stare de-cisis, however, is based upon the legal principle or rule involved and not upon the judgment which results therefrom. In this particular stare decisis differs from res judicata, which is based upon the judgment.”

The court in the Newnom case adopted no statement of a principle, rule or proposition of law determinative of the location of the boundaries of the lands involved in that suit or in this litigation, nor did that court lay down any proposition of law which would negative the existence of the claimed vacancy on which the patent of 1951 was granted. These questions, which would be controlling in this suit, were not considered by the appellate courts.

The doctrine of stare decisis cannot properly be invoked in support of the summary judgment rendered by the trial court. Rogge v. Gulf Oil Corporation, Tex.Civ. App., 351 S.W.2d 565. Appellees, therefore, have not _ conclusively negatived the existence of issues of fact.

Appellant’s principal contention in support of its motion for summary judgment is stated in its brief as follows:

“Determination of the case involves the question of whether subject tract of land was vacant, unsurveyed land in 1940. The key issue in the case is whether or not appellees can now question appellant’s contention that subject tract of land was a vacancy in 1940, when appellee’s father and predecessor in title, W. G. Davis, represented to appellant in 1939 that the land was a vacancy within the enclosure of his adjacent patented lands and requested the Commissioner of the General Land Office to so find on the basis of a survey which Davis had requested and when pursuant to the 1931 Vacancy Act, the Commissioner had found subject tract to be a vacancy and awarded the tract to the W. G. Davis estate in 1940 and issued a patent to the widow of W. G. Davis, mother and predecessor in title of appellees, in 1952. This patent contains the mineral reservation which is in issue in this case.
“The material and undisputed facts concerning the application and award of subject land to appellee’s father and mother will be reviewed below.
“The 1931 Vacancy Act [Acts 42nd Leg., R.S., 1931, ch. 271, p. 452; Codified as Article 5421c, Vernon Civil Statutes] provided for the sale of vacancies as follows, in Section 6:
“ ‘Any one desiring to buy any of the unsurveyed land included in this Act not situated within five miles of a producing oil or gas well shall file with the county surveyor of the county in which the land may be situated, an application for survey describing the land in such manner as will enable the surveyor to identify it and pay the surveyor a fee of one dollar ($1) for filing and recording said application and also deposit with him such sum of money as will pay for citing the claimant or claimants of the land, if any, and the adjoining owners as the tax rolls may disclose the names of such claimants or adjoining owners. The surveyor using the forms prescribed by the General Land Office, shall immediately send by registered mail or hand to each claimant or adjoining owner a citation containing a description of the land sought to be surveyed and fix a date for survey. The survey shall be made and the field notes filed in the Land Office within one hundred and twenty (120) days from the filing of the application with the surveyor. If the area is found by the Commissioner to be unsurveyed and subject to sale, he shall value the land and give notice of the valuation to the applicant who may purchase the land on the same terms and conditions as prescribed by the law and the regulations for the sale of surveyed land ; provided, if the area should be in the enclosure of another person claiming it in good faith, or occupied as a home by another, such holder or occupant shall have a preference right for a period of sixty (60) days after service of citation to have the land surveyed on his own application to the surveyor and on the return of the sum advanced by the first applicant for citation, and thereupon fix his right to purchase as herein provided, * * *

“On October 14, 1938, W. G. Davis filed his application for survey to purchase subject tract pursuant to the 1931 Vacancy Act in the records of the Matagorda County Surveyor and on February 11, 1939, the same application was duly filed in the General Land Office. In this application W. G. Davis stated:

“ ‘I hereby apply for a survey of the following described area believed to be unsurveyed land belonging to the public free school fund, with a view to the purchase of the same under said Act (1931 Vacancy Act).’

“Pursuant to the provisions of the 1931 Vacancy Act and the duly filed request of W. G. Davis, the described tract of land was surveyed and the field notes of the survey were filed with the County Surveyor of Matagorda County. These are the field notes of the tract later patented in 1952 and is the same tract of land at issue in this case. A copy of these field notes was then duly filed with the General Land Office on February 11, 1939. This tract of land based on this survey was designated and thereafter referred to by the General Land Office as SF 14109.

“Pursuant to the 1931 Vacancy Act, the Commissioner of the General Land Office made his fact finding in which he found SF 14109 to be unsurveyed school land. The Commissioner then approved the application for survey and the field notes filed by W. G. Davis and duly classified and valued the land. On July 3, 1940, the Commissioner notified W. G. Davis of his findings and of his approval of the application for survey and the field notes and sent Davis an application to purchase the land.

“By virtue of the 1931 Vacancy Act, since W. G. Davis represented the land as being within his enclosure he had a 60-day preference right to purchase the land over any other applicant.

“On August 5, 1940, W. G. Davis, through his widow, Mabel Ann Davis, acting in her capacity as independent executrix of the estate of W. G. Davis, filed in the General Land Office an application to purchase SF 14109 for $3.00 per acre. The terms of the purchase were a ¼0 down payment, with the balance to be paid over a forty year period at 5% interest. The down payment of $11.23 was enclosed with the application. In his application W. G. Davis, acting through his independent executrix, stated:

“ T hereby apply to purchase the following land under the provisions of the laws relating to the sale of school land without settlement and with a reservation of ⅛ of the sul-phur and ½6 of all the other minerals as-a free royalty to the State.’

“And further stating:

“ T agree that the sale to me is upon the express conditions of a reservation' of Ys of the sulphur and one sixteenth (Vie) of all other minerals as a free royalty to the State. I herewith enclose the sum of $11.23 as the one-fortieth cash payment therefor, * * * ’ '

“In this application, said applicant further executed a note for the balance of the purchase price in the amount of $437.87. And finally, in the application, W. G. Davis, acting through his widow as independent executrix, certified as follows:

“ ‘And it is expressly understood that •I am to comply strictly with all the conditions, limitations and requirements, and am subject to and accept all the benefits and penalties contained and prescribed in the above recited Acts.’ (Referring to the 1931 Vacancy Act)

“On August 5, 1940, the Commissioner of the General Land Office duly awarded SF 14109 to the W. G. Davis Estate pursuant to his approval of the application for survey and field notes and the application to purchase which had previously been filed.

“On March 26, 1952, SF 14109 was duly patented to ‘Mabel Ann Davis, Independent Executrix of the Estate of W. G. Davis, Deceased, and her heirs or assigns.’ The patent shows on its face that it was issued on the application of the Davis Estate pursuant to the 1931 Vacancy Act. The patent expressly reserves the ⅝ free royalty interest in sulphur and the ¾6 free royalty interest in all other minerals which is the subject of this suit. This patent was then duly recorded in the deed records of Matagorda County with the notation on the back of the patent, ‘Ret. to Mrs. Mabel Davis, 930 N. Fourth Ave., Tucson, Arizona.’ ”

In 1938 an application to purchase this land as unsurveyed public school land filed by L. F. Brothers was denied by the Land Commissioner on the ground that there was no vacancy. After having filed her application to purchase Mrs. Mabel L. Davis wrote a letter to the Commissioner in which she stated:

“I still think there is no vacancy on this land. Neither did Mr. Davis think there was. He filed on it simply to be ahead of any unscrupulous person who would file on it, and I filed for the same reason. If, despite all the reasons we had for believing no vacancy existed there, one was declared and it was open for filing, quite naturally we wanted to be the ones to buy the land back, and did not wish a slice out of our farm to fall into the hands of anyone else. Especially the ones who were trying to get it, and who, we knew, would go to any length to obtain it. * * * ”

The application of W. G. Davis was approved and the award made on the day before the deadline for awards on applications filed under the 1931 Act. The Vacancy Act as amended in 1939 (Acts 1939, 46th Leg., p. 465), and presently in effect (Art. 5421c, V.A.T.S.), provides for the reservation to the State of Vs of all minerals where a vacancy is within five miles of a producing oil well, and, in addition, contains a provision whereby an applicant, filing prior to the time that a good faith claimant might file, would receive a Vie free royalty even though the land might be awarded to the good faith claimant.

After the patent was issued to Mrs. Davis by the State, the land conveyed by the patent, together with the land in the Gray-son and Smith Surveys, was pledged as security for a loan from the Federal Land Bank and oil and gas leases were negotiated. The deed from Mrs. Davis to her children, appellees herein, specifically included as “Second Tract” 149.8 acres known as “SF 14109 W. G. Davis Estate.”

Appellant contends that since appellees have had the benefit of the protection that the award of SF 14109 gave them from other vacancy applicants for over twenty years until the royalty has become valuable, equity will not permit them to repudiate the actions and representations of their predecessor in title to escape the sole condition of the vacancy award, the reservation of royalty for the benefit of the Permanent School Fund. Appellant cites the general rule stated in 22 Tex.Jur.2d, Estoppel, § 1: “The broad concept of estoppel is that one who by his speech or conduct has induced another to act in a particular manner ought not to be permitted to adopt an inconsistent position, attitude, or course of conduct and thereby cause loss or injury to the other.”

The doctrine of estoppel applies against those holding in privy of title from one against whom estoppel is asserted. 19 Am.Jur., Estoppel, Sec. 152; Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626.

In Waco Bridge Co. v. City of Waco, 85 Tex. 320, 20 S.W. 137, the Court said:

“Under these circumstances, the mere fact that the plaintiff failed to offer the deed in evidence, and that, in order to prevent the defendant from doing so, it disclaimed holding under it, was properly held by the court not to be a sufficient reason for excluding the deed. The deed clearly reserved and dedicated a street, as was contended by the city. If the plaintiff had accepted it and held under it, or if it was a link in its chain of title, it was bound by it. Even if it was not a necessary link in its chain of title, if it acquired the title of those holding under it for the purpose of quieting its title, or removing clouds or conflicting claims, it must be held to have taken it with and become bound by its reservations. * * * The plaintiff, it seems to us, failed to prove a legal or equitable title to the land, either with or without the introduction of this deed, but the use proposed to be made of it by the defendant, and permitted by the court, did not depend upon its effect in establishing plaintiff’s title. It was sufficient, for the purposes of this case, if it appeared that it was one of the sources under which the plaintiff claimed the land. * * * ” (emphasis added)

The Waco Bridge Co. case was cited with approval by the Supreme Court of Texas in Greene v. White, 153 S.W.2d 575, where the Court held:

“While Alex Garrett did not sign the deed, he was a party to it as grantee, and further became a party to the deed and contract by executing the vendor’s lien notes given as purchase money. The terms, provisions and obligations of the deed are in our opinion, subject to qualification as hereinafter made on account of the homestead question, binding upon both of the parties to it. The instrument is contractual in nature, representing and setting forth the agreement of the grantor and the grantee as to what the interests, rights and obligations of said parties shall thereafter be with respect to the land. It was executed in settlement of conflicting claims of the parties. Garrett was in possession of the land, claiming to have acquired a right or title to it by possession. The right or title claimed by him was not evidenced, however, by any formal or final determination of the sufficiency of his possession to give him a limitation title. The evidence in the record as to his possession up to that time is such that the question of its sufficiency was a question of fact, subject to determination either for or against him by a court or jury. Greene’s claim of title to the land was also at that time subject to dispute and to the hazard of a decision of the facts against him. He had record title to the land through the deed from Huffhines, if the land was within the bounds of the Davenport survey, but the evidence does not conclusively show that it was so located. In this situation, the deed was executed, setting out the agreement of the parties that Garrett should pay to Greene a stated sum evidenced by notes, that thereafter the title to the surface should be in Garrett and the title to the minerals and merchantable timber in Greene, the latter warranting to defend the premises unto Garrett against all claims.
“The general rule is that the grantee in a deed accepted by him is a party to the deed, even though he does not sign it, and that he is concluded by recitals in the deed and by reservations contained therein in favor of the grantor. Martin v. Roberts, 57 Tex. 564, 568; Orbeck v. Alfei, Tex.Civ.App., 276 S.W. 947 ; 21 Corpus Juris, p. 1095, § 81; 19 Am.Jur., p. 627, Sec. 29, p. 624, Sec. 26. ‘The obligations undertaken by the parties to a deed are binding contractually; and where the conveyance is by way of deed poll — that is, one executed by the grantor alone— obligations are enforceable against the grantee by virtue of his acceptance of the deed.’ 16 Am.Jur., p. 645, Sec. 358. The recitals in the deed that the vendor’s lien is retained to secure payment of notes executed by Garrett are contractual. Pridgen v. Furnish, Tex.Com. App., 23 S.W.2d 307. The recitals which give the surface estate to Garrett and reserve the mineral estate to Greene are likewise contractual. They define the character and extent of the ownership and interests of the parties in the land affected by the deed. Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825.
⅜ ⅜ ‡ ⅜ ⅜ ⅜
“It follows from the decision last discussed and the other authorities above cited that, since the parties to the Greene-Garrett deed are bound by the terms of their contract, it was not necessary, in order to make the reservation in the deed effective in favor of Greene and those holding under him and against Garrett and those holding under him, that good title to the land be shown in Greene at the time when the deed was executed. The deed, as between the parties to it, having worked a severance of the mineral estate from the surface estate, such possession of the surface as was exercised by Garrett, and those claiming under him, after the execution of the deed was not adverse possession of the minerals. Elliott v. Nelson, 113 Tex. 62, 251 S.W. 501; Rio Bravo Oil Company v. McErrtire, 128 Tex. 124, 136, 95 S.W.2d 381, 96 S.W. 2d 1110; Luse v. Boatman, Tex.Civ. App., 217 S.W. 1096, application for writ of error refused.”

The decision in the Greene case was explained and followed in Adams v. Duncan, 147 Tex. 332, 215 S.W.2d 599, where the Court said:

“Since the Ford deed was not void, we think its effect is settled by Greene et al. v. White et al., 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626. Although they did not sign the deed, grantees Adams accepted it and subsequently used it to their advantage; so they and petitioners, their privies, were concluded by its recitals and by the reservations therein in favor of the Duncan estate and its heirs, the respondents. Moreover, the deed’s recitals that it conveyed the surface estate and only one half the mineral estate and reserved one half the mineral estate to Ford and to the heirs and devisees of William Duncan, deceased, were contractual provisions that defined ‘the character and extent of the ownership and interests’ of both grantors and grantees in the land.
“It is true that this court said in Greene et al. v. White et al., supra, that if at the time the deed in question there was executed the grantees held title by limitation, the deed from grantors (reserving the mineral estate) was wholly ineffectual. But that holding was grounded on the theory that the land was the homestead of the grantees and, as a matter of course, the instrument could not deprive them of any interest therein if they already owned it whether by limitation or otherwise, since they did not sign and acknowledge it as the law requires in any conveyance of the homestead * *
“ * * * Therefore, neither they nor petitioners as their heirs and successors in title can now be heard to say that they are not bound by its contractual obligations.
“And that disposes of petitioners’ contention that they had acquired limitation through the possession of Bur-rell, their tenant, prior to 1906, as adjudged to them in the Burrell-Bilbo litigation above referred to, for which reason that 160 acres should be considered separately from the remainder of the Duncan Survey in this suit, in adjudicating their rights in the mineral estate. We see no merit in that contention. Whatever their title may have been and whatever its source prior to 1906, they contracted away one half the mineral estate in the whole survey by their acceptance of the Ford deed.”

Unless the Davis patent is void, appellees are estopped to question the title of the State to the reserved mineral interest. Appellees contend that the patent is void by virtue of Sec. 2, Article 14, Constitution of Texas, which provides, in part: “ * * * Provided, that all genuine land certificates heretofore or hereafter issued shall be located, surveyed or patented, only upon vacant and unappropriated public domain and not upon any land titled or equitably owned under color of title from the sovereignty of the State, * * It was early settled that this section applies only to the location of land certificates and does not affect lands purchased from the State. Sanborn v. Gunter & Munson, 84 Tex. 273, 17 S.W. 117, 20 S.W. 72; Howell v. Hanrick, 88 Tex. 383, 29 S.W. 762, 30 S.W. 856, 31 S.W. 611; Juencke v. Terrell, 98 Tex. 237, 82 S.W. 1025.

In Allen v. Draper, Tex.Com.App., 254 S.W. 783, the court said:

“However, it is equally as well settled that a grant from the state, in order to constitute title or color of title within the meaning of the statute of limitation, must he effectual to convey whatever right or title the state had at the time same was issued; and a patent issued without authority in the one who issues it, or issued contrary to law, is void, and cannot constitute title or col- or of title. Smith v. Power, 23 Tex. 29; Texas Land & Mortgage Co. v. State, 1 Tex.Civ.App. 616, 23 S.W. 258 (writ refused); Williamson v. Brown, 49 Tex.Civ.App. 402, 109 S.W. 412; Sherwood v. Fleming, 25 Tex.Supp. 408; Mills v. Needham, 28 Tex.Civ.App. 547, 67 S.W. 1097.”

In Smith v. Power, 23 Tex. 30, the Court said:

“The only question in the case which remains open to examination is, upon the sufficiency of the defense of the statute of limitations. The defendant pleaded the limitations of three and ten years. To render a possession of three years a bar to an action by the true owner, the defendant in possession must have held under title, or color of title, as defined in the fifteenth section of the statute. Hart. Dig. art. 2391. To constitute such title, or color of title, there must be a 'chain of transfer from or under the sovereignty of the soil.’ This necessarily presupposes a grant from the government, as the basis of such transfer. And the grant must he effectual to convey to the grantee whatever right or title the government had in the land, at the time of making the grant. It need not necessarily carry with it the paramount title; hut it must be title, as against the government, valid in itself when tested by itself, and not tried by the title of others. It must have intrinsic validity, as between the parties to it; though it may be relatively void, as respects the rights of third persons. If it be absolutely void, a nullity, it cannot be said to be a grant, or the basis of a transfer of the title from the government. The term ‘grant’ imports that something passes thereby from the grantor to the grantee. But if it is absolutely void, of course, nothing passes by it; it cannot constitute title, or color of title, within the provision of this section of the statute.”

Since the Land Commissioner was invested with all necessary legal authority to make the grant, and was acting within the apparent scope of his legal powers, the patent to Mrs. Davis was not void.

The Davis grant is not void for yet another reason. McCombs v. McKaughan, Tex.Civ.App., 195 S.W.2d 194, writ ref., held that the one year statute of limitation (Sec. 4, Art. 5329, V.A.T.S.) applies only to procedural matters before the Commissioner of the General Land Office upon which awards are made and cannot be made to apply so as to extinguish a valid title “outstanding in a third person” to the supposed title awarded by the State and that no title passed under such an award for the reason that the State had no title to convey. Nevertheless, by virtue of that statute, after one year from the date of the sale, neither the State nor anyone else, except the owner of a valid outstanding title, could attack the patent issued by the State. Callahan v. Giles, 137 Tex. 571, 155 S.W. 2d 793; Erp v. Robison, 106 Tex. 143, 155 S.W. 180. The patent obviously had a value to Mr. and Mrs. Davis even though they might be able to prove that no vacancy existed. Equity will not permit them to accept the benefits of their bargain and thereafter to repudiate the obligations assumed thereunder. Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166. The trial court erred in denying the State’s motion for summary judgment.

The judgment of the trial court is reversed and rendered.


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    Walter YOUNG, Appellant, v. Luther DE LA GARZA et al., Appellees.
    No. 16179.
    Court of Civil Appeals of Texas. Dallas.
    May 24, 1963.

      Miller & Martin, Dallas, for appellant.
    Goldberg & Alexander and James A. Baker, Dallas, for appellees.
   WILLIAMS, Justice.

Appellant’s suit upon a promissory note and foreclosure of a lien was answered by appellees by verified plea of misrepresentation and failure of consideration. By cross-action appellees affirmatively sought cancellation and rescission of the note and lien as well as recovery of money damages. Appellant’s motion for summary judgment being overruled, the case proceeded to trial before the court, without a jury. Judgment was rendered that appellant take nothing; that the note and lien sued upon be cancelled; and that appellees recover $4,385.33 from appellant. Appellant seeks reversal of this decree upon eight points of error which we have carefully examined and finding no merit in any of them, we affirm the judgment of the trial court.

FACTS

On October 10, 1955 a lease agreement was entered into between Martin Weiss, as lessor, and Walter Young, as lessee, said lease being for a period of thirty years and covering certain real property located in the City of Dallas, Texas. Lessee Young erected certain improvements upon the property.

The lease in question is typewritten and contains fourteen numbered clauses. Two clauses of the lease are subject to construction in this suit. Clause three reads: “that the lessee shall not assign this agreement or underlet the premises, or any part thereof (except as may be mentioned herein) without the consent of the lessor in writing (see #14.)” Clause number fourteen reads “it is agreed and understood between lessor and lessee that lessee shall have the privilege of assigning or selling this lease to other persons or corporations subject to the conditions and covenants herein.”

Martin Weiss, the original lessor, died and his widow, Mrs. Martin Weiss and the Republic National Bank of Dallas became co-independent executors of his estate.

On November 23, 1960, following negotiations, appellant Young and appellees Luther De La Garza and J. E. Gonzales, Jr. consummated an agreement whereby appellant, by warranty deed, conveyed to appellees his leasehold interest and all improvements located on the lease property for an agreed price of $25,000. Appellees paid $4,000 cash and executed a note in the sum of $21,000 payable in installments, secured by a deed of trust on the improvements. It is without dispute in this record that no written consent of the original lessor was ever obtained by appellant prior to the making of the lease agreement with appellees. Ap-pellees defaulted in the payment of installments on the note and this suit resulted. Appellees answered that appellant did not have authority to sell and assign to them the lease in question since appellant did not secure the written consent of the lessor to make such assignment, and therefore there was no valid consideration. Appellees also contended that appellant had represented to them that he had the authority from the lessor to assign the lease and that such representation was false, justifying cancellation and rescission.

Bernard Hirsch, who had been employed by Mrs. Martin Weiss to aid in the management of her property, testified that in June or July of 1960 appellant Young called him and told him about negotiations for the sale of the lease and asked if “we would be willing to give him permission to assign the lease to these people.” Hirsch said that he, acting on behalf of the Weiss estate, never gave oral or written consent to the assignment of the lease. He also testified that, to his knowledge, Mrs. Weiss did not give her consent to the assignment. According to Hirsch neither he nor Mrs. Weiss knew that the assignment had been entered into between appellant and appel-lees in November 1960 until the early part of 1961 and that he, as agent for the Weiss estate had refused to recognize the appel-lees as tenants.

James P. Donovan, trust officer of the Republic National Bank of Dallas which was co-independent executor of the estate of Weiss, testified that he talked to appellant Young on the telephone in the early part of 1961 concerning the assignment of the lease and advised Young at that time that any assignment would have to be with the written consent of the Weiss Estate. On February 24, 1961 Donovan wrote Young a letter in which he stated: “Our interpretation of the lease agreement in respect to paragraphs numbered three and fourteen providing that while you have the right to assign or sell the lease agreement, you cannot do so without consent of the lessor in writing and then only subject to your being fully responsible for the term, conditions, and covenants in the lease agreement.” Donovan related that he had a conversation with appellee Gonzales in February 1961 and refused to recognize Gonzales as tenant of the property. According to Donovan the Trust Department of the Bank had no prior knowledge of the attempted assignment to appellees prior to the time the Bank failed to recognize ap-pellees as tenants in February 1961.

OPINION

One of the primary contentions of appellant, as reflected by his first three points of error, is that under the express provisions of the original lease agreement it was not required that lessee obtain written permission from the lessor in order to sublet the premises and therefore the trial court was in error in concluding, as a matter of law, that the lease did require written consent for assignment.

To properly construe the provisions of the lease agreement we must be ever mindful of certain basic and cardinal rules of construction. The first of such rules is that the intention of the parties be ascertained and given effect. As we pointed out in Davis v. Andrews, Tex.Civ.App., 361 S.W.2d 419, even this primary rule of construction must be immediately modified with the restriction that it is not the intention which the parties may have had, but failed to express in the instrument, but it is the intention which by said instrument they did express. The question is not what the parties meant to say but the meaning of what they did say. 19 Tex.Jur .2d § 111, p. 401. Provisions in a contract which are apparently conflicting are to be reconciled and harmonized, if possible, by reasonable interpretation, and the contract as a whole given effect. To accomplish this the court will look to the entire instrument and not to isolated parts thereof. 10 Tex.Jur. § 179, p. 311. In event of conflict between the clauses of an agreement whereby the meaning is obscured or rendered doubtful the expression in the clause first appearing will control. Witt v. Harlan, 66 Tex. 660, 2 S. W. 41; Benskin v. Barksdale, Tex.Com. App., 246 S.W. 360; Osburn v. Smart, Tex. Civ.App. wr. dism., 58 S.W.2d 1073.

From a reading of the entire lease agreement, what did the parties intend with reference to future assignments ? By paragraph three the parties expressly stated that the lease could not be assigned without the consent of the lessor in writing. This provision is nothing more than the statutory prohibition of reassignment contained in Art. 5237, Vernon’s Ann.Civ.St. Such statute is made a part of every lease contract by operation of law. So, in order to change or modify the express and statutory prohibition of reassignment without written consent, the parties must necessarily clearly express their intent. Appellant argues that such was done in paragraph fourteen of the lease. However, an examination of this paragraph reveals that the parties merely stated therein that lessee shall have the privilege of assigning or selling the lease “subject to the conditions and covenants herein.” 'The “covenants and conditions contained therein” included, among others, not only the express but the statutory prohibition of reassigning without written consent of the lessor. Paragraph fourteen does not expressly state that reassignment may be made without written consent of the lessor and we cannot say that the parties intended this meaning to be read into the contract.

Whether an instrument is ambiguous is a question of law. The construction to be given an unambiguous instrument is a question of law and not one of fact. Davis v. Andrews, Tex.Civ.App., 361 S.W. 2d 419. If an instrument is held to be ambiguous the trial court may allow extrinsic evidence to show the intent of the parties. In this case the record is devoid of any extrinsic evidence, and while the parties may have intended to provide reassignment without consent of lessor they did not express such intent by paragraph fourteen of the lease.

By his fourth, fifth and sixth points of error appellant earnestly contends that even though the trial court was correct in finding that the written consent of the lessor was required, yet in the event of breach it is only the lessor that may complain and since, in this case, the lessor has made no complaint the contract between appellant Young and appellees is binding on the parties. Furthermore, says appellant, lessor has waived his right to demand written consent. In support of these points appellant relies upon such cases as Ewing v. Moran, Tex.Civ.App., 166 S.W.2d 760; Frankfurt v. Decker, Tex.Civ.App., 180 S. W.2d 985 and Apperson v. Shofner, Tex. Civ.App., 351 S.W.2d 367 which hold, generally, that the prohibition of the statute against subletting without prior consent of the landlord is solely for the benefit of the landlord and that he alone may complain of the wrong done by such subletting. We find no fault with the holdings of these cases but are of the opinion that under the facts of this case the same are not controlling. The rule relied upon by appellant postulates an absence of complaint by the lessor. It would necessarily follow that if there was a complaint lodged by the lessor, or landlord, then the assignee may assert his legal rights. The situation is demonstrated in one of the cases cited by appellant, Frankfurt v. Decker, Tex.Civ.App., 180 S.W.2d 985 in which the landlord did file a complaint and evicted the subtenant. The suit concerned the lessee and sublessee and the court allowed recovery to sublessee for his damages.

It is well settled that without the consent of the landlord the subtenant is a trespasser and occupies the attitude of a stranger to the landlord. Brown v. Johnson, 118 Tex. 143, 12 S.W.2d 543; Richmond v. Broughton, Tex.Civ.App., 190 S.W. 2d 842, err. ref. w.o.m. There is ample evidence in this record that the co-executors of the estate of Martin Weiss refused to recognize appellees as tenants. Being subjected to non-recognition by the original lessor, and owner of the land, appellees were relegated to their cause of action seeking relief against appellant not only for failure of consideration but for cancellation and rescission. In an action for cancellation and rescission plaintiff’s position is that the contract was void ab initio and the rights of the parties in reference to the subject matter are as if no contract had ever been made. Hunt County Oil Co. v. Scott, 28 Tex.Civ.App. 213, 67 S.W. 451.

Nor do we believe that the record reveals an effective waiver of any rights of the original lessor which would preclude recovery by appellees against, appellant. Waiver is an intentional surrender of a right known to exist and usually it is a question of fact. Moreover, waiver is an affirmative defense and must be specifically pleaded. Appellant filed only a general denial in response to appellees’ cross-action. Waiver is not available as a defense under a general denial. Young v. Haynes, Tex. Civ.App., 295 S.W.2d 536; Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855; 43-B Tex.Jur. 489-90. Furthermore, there is no evidence that the estate of Martin Weiss, deceased, knew anything about the attempted sublease in question or knew that payments made under the lease to the Republic National Bank monthly were made by anyone other than appellant, prior to the repudiation of such agreement in February of 1961. In absence of proof of knowledge of the material facts by the original lessor, or his legal representative, an essential element of the doctrine of waiver is absent. Ford v. Culbertson, 158 Tex. 124, 308 S.W. 2d 855; 43-B Tex.Jur. 479.

By his seventh point appellant says that the trial court’s findings of fact and conclusions of law numbers nine through twenty are not supported hy the record and cannot afford the basis for judgment herein. This point is multifarious and therefore does not comply with Rule 418, Texas Rules of Civil Procedure. However, from the statement and argument under this point it is obvious that appellant chiefly complains of findings of fact number nine which is to the effect that plaintiff represented to defendants that he was authorized by the lessor to assign the lease in question. We are also of the opinion based upon the statement of appellant, that this point is a “no evidence” point, and therefore the judgment must be affirmed if there is any evidence of probative value to support the finding complained of by appellant. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. We have carefully read the statement of facts in this case and find ample evidence to support the court’s findings of fact number nine as well as all of the other questioned findings. Appellee Gonzales testified positively that appellant represented to him that he had the right to convey the lease in question. We deem it unnecessary to review all of the testimony but having read the entire statement of facts we find sufficient evidence to support the trial court’s conclusions. Neither can we say that such findings and conclusions are so contrary to the great weight and preponderance of the evidence as to be manifestly wrong. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

By his eighth, and last point, appellant contends that the trial court erred in refusing to grant his summary judgment. We cannot agree. Appellees’ reply and answer to the motion for summary judgment presented a question concerning the existence of a genuine issue of material fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. Furthermore, the affidavit in support of appellant’s motion for summary judgment was defective in that it did not meet the requirements of Rule 166-A

(e), T.R.C.P. in that (1) it contained hearsay statements and conclusions which would not be admissible upon the trial, and (2) said affidavit does not allege that it was made on the personal knowledge of the affiant. Sparkman v. McWhirter, Tex.Civ. App., 263 S.W.2d 832, err. ref.; Lawyers Surety Corp. v. Sevier, Tex.Civ.App., 342 S.W.2d 604; Youngstown Sheet & Tube Co. v. Penn, Tex., 363 S.W.2d 230.

The judgment of the trial court is affirmed.


author: PHILLIPS, Justice. HUGHES, Justice PHILLIPS, Justice.

text:
    Joe H. CARRUTH, Appellant, v. J. W. ALLEN et al., Appellees.
    No. 11068.
    Court of Civil Appeals of Texas. Austin.
    April 17, 1963.
    Rehearing Denied June 13, 1963.

      Mueller & Criss, Austin, for appellant.
    Clark, Thomas, Harris, Denius & Winters, Wallace A. McLean, Austin, for ap-pellees.
   PHILLIPS, Justice.

This is an appeal from a summary judgment granted by the Trial Court in response to a suit for damages brought by Joe H. Carruth, the appellant here, against J. W. Allen, Edgar A. Lashly, Arthur Mitchell, Law Lectures, Inc. and the Capital National Bank (The Capital National Bank was not one of the original defendants below but intervened as a creditor and pledgee of certain stock and is not a party to this appeal) alleging certain fraudulent representations by the appellees during negotiations which culminated in a contract. J. W. Allen is not a party to this appeal. There were also other intervenors who are not parties to this appeal whose designations and positions taken are not pertinent here. Hereinafter the designation appel-lees and cross-plaintiffs will refer to Lashly, Mitchell and Law Lectures, Inc.

Appellant alleges that on May 21, 1960 he entered into a contract with the above-named appellees to purchase all of the ap-pellees’ stock in two building corporations, namely, Barton Homes, Inc. and Barton View, Inc. At this time appellant owned 32% of stock in Barton View, Inc. That as part of the consideration, appellant agreed to assume all of the debts and obligations of the two corporations and to hold the defendants harmless on account of any obligation, of whatever kind, in connec-tion therewith.

Appellant further alleges that at the time the contract was signed the appellees furnished appellant with a balance sheet and list of accounts payable of Barton View, Inc. That appellees with intent to deceive and defraud appellant falsely and fraudulently represented to appellees that the debts and obligations listed thereon were all of the debts and obligations of Barton View, Inc. That appellees furnished appellant with a “closing projection” statement and a “job cost payoff schedule” which purported to show all of the debts of Barton Homes, Inc. as well as its assets. That the appellees with intent to deceive and defraud appellant falsely and fraudulently represented to plaintiff that the debts and obligations listed thereon were all of the debts and obligations of Barton Homes, Inc.

Appellant then alleges that there were debts outstanding of at least $7,000.00 that were not listed on the abovementioned schedule furnished appellant by the appel-lees that were in addition to those debts represented by the appellees to be all of the obligations of Barton Homes, Inc. That appellant believed and relied upon said representations and was thereby induced to enter into the contract of May 21, 1960. That appellant has become obligated to pay certain undisclosed debts.

Appellant also alleges that for approximately two years prior to May 21, 1960, appellees Mitchell and Lashly had represented appellant as his attorneys, that appellant had great confidence and trust in Mitchell, that appellee Mitchell had continued to represent appellant as his attorney for a period of two years or more after May 21, 1960 and that appellee Mitchell had represented to appellant that the contract of May 21, 1960 had been checked and was in good order and that Mitchell further represented to the appellant that he would “see him through” on this agreement. That because of the fiduciary and confidential relationship that had been created between Mitchell and the appellant, that Mitchell was acting as appellant’s attorney at the time the contract of May 21, 1960 was signed.

Appellant further alleges that he was induced by the appellees to pledge certain stock he owned in Southern Oaks Development Company and in Southern Oaks Realty Company to secure the performance of his obligations under the contract of May 21, 1960. That the appellees represented to appellant that his pledge of stock was to secure only his indebtedness of $7,200.90 to appellees and that the assets of Barton Homes, Inc. would be sufficient to pay off the obligations of the corporation.

The record before us consists of the transcript and the briefs of the parties. From this record it appears that appellant undertook to sell the property that was the subject of the above-mentioned contract, created certain mortgages and in general dealt with the property as if it had been his own. It also appears from the record that appellant was sued on at least three occasions on various notes and debts that the real property had become subject to prior to the contract of May 21, 1960 and that at least three judgments were obtained against appellant pursuant to said lawsuits.

Appellees answered the appellant’s allegations by pleading the abovementioned lawsuits and final judgments against appellant under the contract of May 21, 1960, quoted from these judgments, to the effect that said contract “is valid for all purposes and a binding obligation upon the parties thereto insofar as they are before the court in this proceeding.” They further alleged that these judgments were res judi-cata and stare decisis to the proceeding herein. That appellant is estopped from challenging the validity of the contract as the exact agreement, which is the subject matter of the present lawsuit and which has already been adjudicated.

Appellees further plead as a defense that they did not mislead or defraud the appellant with reference to the financial affairs of Barton Homes, Inc., that appellant conducted his own investigations relative to the matter. That appellant sold in excess of $50,000.00 worth of properties owned by Barton View, Inc. and that by his actions in receiving benefits from the contract he had ratified the contract.

In addition to the defenses pleaded, ap-pellees set up a cross-action against appellant whereby they set out various notes that appellant had either assumed under the contract in question or for which he had become directly liable to these appellees by virtue of the abovementioned contract and prayed for judgment thereon.

On April 30, 1962 appellees filed a motion for summary judgment alleging that appellant’s petition had not stated a cause of action in that while alleging certain misstatements and deceptions on the part of the appellees, that appellant does not allege that he relied on these statements; that the contract of May 21, 1960 indicated that appellant had made a full and independent investigation of all the pertinent matters and quoted part of the contract as follows:

“WHEREAS, all parties hereto, having negotiated for a reasonable time, prior to the date of the consummation of the agreements and contracts above recited, and having fully, fairly and completely informed themselves as to the circumstances, facts, and data, surrounding the entire agreement (the corporations involved having fully opened their books to all parties concerned), and sought and secured independent advice, and counsel, and conducted their own investigation, each in his own way and liking, do agree by the execution hereof, that a full disclosure has been made as to all facts.”

The motion further sets out the various lawsuits and judgments against the appellant brought under the contract in question and sets up res judicata, stare decisis and estoppel by judgment.

Next, the motion lists numerous transactions wherein the appellant sold, mortgaged and dealt with the real property that was part of the subject matter of the contract in question and states that appellant ratified, adopted and affirmed the contract.

Appellees’ Motion for summary judgment is appended by the affidavit of Arthur Mitchell in support of the motion denying any misrepresentation on the part of appellant concerning the alleged “closing projection statement” and denying further that appellees had ever indicated to appellant that the exact cost of the houses under the contract was ascertainable.

On May 1, 1962 cross-plaintiffs (appel-lees) filed motion for summary judgment against appellant on their cross-action seeking recovery of the various notes for which appellant had become obligated to them under the contract.

On May 11, 1962 appellant filed his affidavit -in opposition to defendant’s and cross-plaintiff’s motion for summary judgment. In this affidavit, appellant swears that he was induced to enter into the contract of May 21, 1960 by certain representations of the appellees concerning a “closing projection” statement and a “job cost pay off schedule,” that the debts and obligations listed thereon were all of the debts and obligations of Barton Homes, Inc, Copies of these two schedules were attached to the affidavit. The affidavit further sets out certain debts and obligations that are not included on either of the two schedules; that appellees had represented to appellant that if the four homes which Barton Homes, Inc. owned could be sold for the price listed on the “closing projection” statement that the proceeds from their sale would discharge all of the debts and obligations of Barton Homes, Inc.; that such statement and representation were false and Barton Homes, Inc. had debts and obligations far in excess of assets available to retire such debts and obligations and in truth and in fact Barton Homes, Inc. was hopelessly insolvent and such financial condition was well known to appellees; that appellant engaged in certain transactions with the property of Barton View, Inc. which he hoped would salvage something out of the transaction of May 21,, 1960; that all of the transactions entered into concerning the property were with the express intention of saving as much of the property of both corporations as was possible under the circumstances; that the reason that he had been unable to discharge all of his obligations under the agreement of May 21, 1960 was because of the misrepresentations of the appellees.

On May 11, 1962 a hearing was held on the motions for summary judgment and after argument of counsel the court granted both motions for summary judgment. Immediately after the court had announced its ruling, counsel for appellant requested leave of the court to submit a supplemental affidavit, which request was denied.

On June 7, 1962, before rendition of judgment, appellant filed his supplemental affidavit in opposition to appellees’ (defendants and cross-plaintiffs below) motions for summary judgment.

On July 26, 1962 at a hearing on the form of the judgment, the supplemental affidavit filed by appellant was again called to the attention of the court and the court was requested to consider it, which request was denied.

On August 3, 1962 judgment was formally rendered and at a hearing on a motion for new trial on September 7„ 1962 the supplemental affidavit was again called to the attention of the court and the court was requested to consider it. This request was again denied.

Appellant has assigned error to the court’s refusal to consider his amended or supplemental affidavit.

Appellant’s supplemental affidavit contained the following recitals in addition to those set out in his first controverting affidavit :

In addition to his 32% of the stock in Barton View, Inc. appellant had no assets other than his stock in Southern Oaks Realty Co. and Southern Oaks Development Co. That his financial condition was well known to appellees.

That immediately after closing the contract of May 21, 1960 appellant made arrangements for the salesmen necessary to sell the houses, advertised the houses, expended in the neighborhood of $1,000.00 for office rental, advertising, telephone, etc.

Appellant was not aware until some two and one half months later that the homes of Barton Homes, Inc. could not be sold for enough money to retire the debts against them.

Appellant sold an interest in Barton Homes, Inc. to a Mr. Stinson and a Mr. Swindell based on the “closing projection statement” and the “job cost pay off” schedule described above. Because of his efforts and those of Stinson and Swindell appellant was able to find prospective buyers for all four homes. When the first loan was approved, a closing statement from the title company revealed that the sale of one of the homes would not be sufficient to pay off the indebtedness against it. That the reason for this was the heretofore undisclosed debts of Barton Homes, Inc. Shortly thereafter, appellant learned of another undisclosed debt to a Lumber Company for in excess of $5,000.00 and another outstanding note for $3,000.00.

After discovering the true extent of the false representations that had been made as to the financial condition of the corporation, appellant had a conference with the appel-lees wherein appellant informed them that they would have to be responsible to him for the undisclosed debts and obligations of both corporations.

That at this time the property of both corporations was in jeopardy of being foreclosed for payment of debts and appellant sold what property he could to refinance and pay creditors in an attempt to prevent such foreclosures.

Immediately after discovering that the appellees had misrepresented certain facts, appellant secured the services of an attorney to represent him.

Prior to May 21, 1960 neither Barton Homes, Inc. nor Barton View., nor any officer or agent thereof opened their books to appellant for inspection nor did he seek or secure independent advice or counsel or conduct his own investigation into the facts and circumstances surrounding the financial condition of either corporation but relied wholly upon the representations that had been made to him by the appellees.

That for more than two years prior to May 21, 1960, appellee Arthur Mitchell had represented appellant as his attorney in various matters and when he signed the contract of May 21, 1960 with appellees he was assured by Mitchell that he had checked the contract for appellant, that it was all right for him to sign it as written and that he did not have to worry about pledging his stock because the assets of Barton Homes, Inc. were sufficient to satisfy all of the debts of that corporation; that the stock appel-lees required appellant to pledge was merely to secure the notes appellant had executed to each of the appellees pursuant to the contract of May 21, 1960.

That appellant relied on Mitchell’s statements as Mitchell had been his attorney for more than two years and was in fact on May 21, 1960 handling the negotiations for the purchase of the stock of Barton View, Inc. in appellant’s behalf.

That appellee Mitchell also represented to appellant on May 21, 1960 that he would continue to represent appellant and remain as president of Barton Homes, Inc. until the time the homes owned by the corporation were sold in accordance with the projected closing statement that had been furnished appellant and until all the debts of the corporation were paid.

After granting the motions for summary judgment, the judgment of the court was that appellant take nothing against the ap-pellees by his suit; that appellees (cross-plaintiffs) recover against appellant Barton Homes, Inc. and Barton View, Inc. (cross-defendants) the various notes by which appellant had become obligated under the contract in question; that the stock that appellant had pledged as security for his performance of the contract be sold at public sale and the proceeds be applied to the satisfaction of appellant’s debts to appellees and any additional amount tO‘ be awarded to appellant.

There were also awards to certain inter-venors who are not parties to this appeal.

In Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, the Texas Supreme Court stated the purpose and application of the summary judgment rule as follows:

“Rule 166-A, Rules of Civil Procedure, provides for summary judgment ‘(c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, arid admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ (Emphasis added by Supreme Court.)
“ * * * The duty of the court hearing the motion for summary judgment is to determine if there are any issues of fact to be tried, and not to weigh the evidence or determine its credibility, and thus try the case on the affidavits.” Citing cases.

The Supreme Court continues quoting from Kaufman v. Blackman, Tex.Civ.App.,, 239 S.W.2d 422, 428, writ refused, N.R.E.:

“ ‘The underlying purpose of Rule 166-A was elimination of patently unmeri-torious claims or untenable defenses; not being intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact.’ The burden of proving that there is no genuine issue of any material fact is upon the movant, and ‘All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment.’ ” Citing cases.

In view of the law and the issues of fact raised by appellant’s pleading and original affidavit alone, it is the opinion of this Court that the appellees have failed to discharge the burden placed upon them by Rule -166-A, Texas Rules of Civil Procedure and that the case should be reversed and remanded for a trial upon the merits.

Appellant’s first amended original petition brought a common law action for fraud and concealment alleging (1) certain undisclosed debts against the property that was the subject matter of the above mentioned contract (2) that appellees had furnished appellant with certain documents (entered as exhibits to the petition) allegedly containing all of the debts of said corporations while in fact there were others known to appellees and that said representations were made to mislead the appellant (3) that appellant relied on the statements and documents presented him by the appellees, that one of the appellees was in fact acting as his attorney at the time the contract was entered into; (4) that appellant has been damaged by the existence of the undisclosed debts.

That appellant’s petition presents a prima facie case of fraud. 25 Tex.Jur.2d p. 626, sec. 13 defines fraud as “ * * * a false statement of a material fact made to be acted on and actually believed and acted on with consequential injury to the person acting thereon.” In other words, the false affirmation of a material fact made for the purpose of inducing a bargain and actually accomplishing the purpose with resulting damage will constitute ground for an action for fraud.

Appellees’ defense is a denial of any misrepresentation on their part then centers mainly on the contract of May 21, 1960 wherein (1) the wording of the contract discloses that the parties were to deal at arms length, had in fact done so as independent investigations were made by all parties (2) appellant had ratified the contract, had entered into numerous negotiations involving the property which was the subject matter of the contract (3) that several lawsuits were brought by certain creditors (other than appellees) against appellant under the prior obligations appellant assumed under the terms of the contract, that (4) the judgments obtained as a result of the lawsuits confirmed the validity of the contract and appellant is estopped by res adjudicata, estoppel by judgment from now attacking the validity of the contract.

It is well settled in the jurisprudence of this State that an injured party may retain the benefits of a contract, confirm its validity and elect to sue for damages in an action for fraud by which he was induced to enter into the contract. Grabenheimer v. Blum, 63 Tex. 369, 374; Andrews v. Powell, Tex.Civ.App., 242 S.W.2d 656, no writ history. There is no doubt that appellant ratified the contract and having done so was bound by it and was also bound by the obligations attendant thereto.

The judgments obtained by the various creditors under the obligations assumed by the appellant under the contract in question do not bar the present suit. In Lott v. Lofton, Tex.Civ.App., 280 S.W. 312, no writ history, the court announced what has come to be the accepted doctrine in Texas to the effect that: “A former judgment will not be a bar to further litigation regarding the same subject-matter, unless the same vital point was put directly in issue, or was fairly within the scope of the pleadings. It is not conclusive of any matter, if the matter be not such that it had of necessity to be determined before the judgment of the court could have been given. Philipowski v. Spencer, 63 Tex. 604.” In this case a suit for debt and foreclosure of a lien prosecuted to judgment did not act as a bar to a later suit for fraud attacking the judgment. Nowhere in appellees’ answer is there any contention that the question of fraud has been an issue in any of the suits described.

In Cauble v. Cauble, Tex.Civ.App., 2 S.W.2d 967, writ dismissed, this Court held that the doctrine of estoppel by judgment rests upon equitable principles and upon the broad principles of justice which will not permit one to relitigate a particular fact or matter in dispute between the parties which has already been judicially determined by a court of competent jurisdiction upon the ground that the record in question imports absolute verity. The answer given in this opinion to the question of res ad-judicata applies here. “The operation of a judgment as an estoppel extends only to matters that were either expressly determined or necessarily involved in the adjudication.” 34 Tex.Jur.2d, Sec. 520 and cases there cited.

Neither' does the doctrine of merger of cause of action in judgments broaden a judgment to include matter that was not put directly in issue at a former trial nor was fairly within the scope of pleadings. Farmers Royalty Holding Co. v. Kulow, Tex.Civ.App., 186 S.W.2d 318, affirmed 144 Tex. 312, 190 S.W.2d 60.

In spite of the fact that the contract states that full investigation and disclosure has been made by the parties thereto concerning the debts of the corporations involved, appellant alleged fraudulent concealment of debts, that he relied on ap-pellees’ statements that there were no debts other than those described and in addition pleads a confidential relationship between himself and the appellee Mitchell of attorney and client. An independent investigation of matters that eventually culminate in a contract does not as a matter of law defeat a right to rely on allegedly false representations. See 25 Tex.Jur.2d, Sec. 27 and the cases there cited. Appellant’s allegations raise questions of reliance.

Appellees also seek to sustain the summary judgment denying appellant relief on the ground that there is no evidence to-show that appellant has been damaged. The basis of this contention is that since this suit is based on fraud in a corporate stock transaction that Art. 4004 Vernon’s Ann. Civ.St. provides the proper measure of damages. Such statute provides, in part, that, “All persons guilty of such fraud shall be liable to the person defrauded for all actual damages suffered, the rule of damages being the difference between the value of the property as represented or as it would have been worth had the promise been fulfilled, and the actual value of the. property in the condition it is delivered at the time of the contract.”

There is no evidence of value of the property in this record.

Before the enactment of Art. 4004 it was held that whether the action, in a case, similar to this, was in fraud and deceit or on the contract, the measure of damages was the sum reasonably required to remove the encumbrance as to which the false representation applies. Thomas v. Ellison, 102 Tex. 354, 116 S.W. 1141. This is also the measure of damages in suits for breach of warranty against encumbrances. See City of Beaumont v. Moore, 146 Tex. 46, 202 S.W.2d 448.

It is to be noted that the cause of action to recover for such encumbrances arises only when cuch encumbrance is removed, as paying an outstanding debt, or when the vendee becomes legally liable therefor. Thomas v. Ellison, supra.

It is our opinion that the value of the property here is irrelevant to the measure of damages in this case. Whatever the value of the property, it is less valuable to appellant by the exact amount which appellant pays or becomes obligated to pay. It is a debt against the stocks, or corporations, which he, by reason of fraud on the part of appellees, did not take into account when the contract was made.

As illustrative of our holding place an arbitrary value of $10,000.00 on the stocks, a represented indebtedness of $5,000.00, and an actual indebtedness of $6,000.00. Now apply the measure of damages prescribed by Art. 4004. If the debts had been $5,000.00 as represented, i. e. had the false promise been fulfilled, the value of the property to appellant would have been $5,000.00.

The condition in which the property was delivered, i. e. subject to a debt of $6,000.00, its value to appellant was $4,000.00. The difference between these amounts is $1,000.-00, the amount of the debt.

The appellant had the alternative of suing for fraud under his common law right or under Article 4004. He chose the former. El Paso Development Co. v. Ravel, Tex.Civ.App., 339 S.W.2d 360, writ refused, N. R. E.

When we view the pleadings of the appellant along with the original affidavit filed, it is apparent that appellant has become obligated for the undisclosed debts through the contract of May 21, 1960 or by the judgments obtained against him. It is sufficient that the petition when supplemented by the original affidavit disclosed damages which, if proved, would be sufficient at law. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233. A summary judgment is not concerned with the amount of damages, Rule 166— A, T.R.C.P.

In view of our holding that appellant’s petition together with the original affidavit filed was sufficient to present a cause of action, it becomes unnecessary to discuss whether or not the court abused its discretion in refusing to consider the supplemental affidavit filed by appellant.

In view of our holding that it was error for the trial court to have granted appellees’ motion for summary judgment, it follows that it was also error in granting the cross-plaintiffs’ (appellees’) motion for summary judgment.

The cause is reversed and remanded for trial.

Reversed and remanded.

HUGHES, Justice

(concurring).

In the opinion for the Court by Associate Justice PHILLIPS the case of Thomas v. Ellison, 102 Tex. 354, 116 S.W. 1141, is cited for the rule prescribing the measure of damages in cases of this character. The Court there discussed the rights of a purchaser of land who had been defrauded by misrepresentations by the vendor as to the amount of debts outstanding against the property. As to such concealed debts the Court held that the purchaser had no cause of action against the vendor until he had paid such debts or had become legally liable therefor. I quote from the opinion:

“We are of the opinion that the court erred in refusing to quash the attachment on the ground set up in the motion. The cause of action stated in the third amended petition, and in those which preceded it, for the recovery of damages for the deceit practiced was for a tort, and not for a debt in the sense of the attachment law, and it constituted no lawful basis for the writ. El Paso Bank v. Fuchs, 89 Tex. 197, 34 S.W. 206. We do not understand counsel for plaintiff to contend that a cause of action like that just referred to would sustain an attachment. Their contention is that the third amended petition disclosed a cause of action, however defectively stated, for the recovery, upon the broken warranty, of the amount of the incumbrance, as for a debt existing, but not mature. But the trouble with this is that no such cause of action existed when the attachment was sued out, and none such arose until the subsequent payment of the Harrison notes. Until that payment was made the defendant owed, not the plaintiff, but the holders of the notes. The plaintiff, when he sued out the writ, had neither paid, nor, so far as his allegations show, assumed or in any way become bound for the payment of, the notes. They were merely secured by a lien on his property, and this gave him the right to discharge them and look to Thomas, Jr., for reimbursement; but, until he had either paid them, or substituted himself for Thomas, Jr., as Harrison’s debtor, he had no cause of action against Thomas, Jr., on the warranty to recover the amount due on them. Gunst v. Pelham, 74 Tex. 586, 12 S.W. 233.”

In Bell v. Isenhower, Tex.Civ.App., 356 S.W.2d 485, reversed Tex., 365 S.W.2d 354, this Court, without knowledge of the above case, applied the principle of the above case to a similar fact situation. The subject matter of the sale there was a feed store and the amount of the outstanding debts was misrepresented. The Trial Court rendered judgment for the full amount of such debts in favor of the purchaser and against the seller. We reversed such judgment on the ground that the purchaser not having paid such debts could not recover for them. We also called attention to the liability of the purchaser to creditors of the store under Art. 4001, V.A.C.S., Bulk Sales Law, compliance with such statute not having been shown.

There is no question, under Thomas v. Ellison, but that we were correct in our holding as to the substantial rights of the parties. We may have erred in remanding the case and in not rendering judgment against the purchaser as we were urged to do. Since the case had to be reversed we exercised a discretion which we believed we had under Rules 434, 505, T.R.C.P. and we remanded rather than rendered the cause. See Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792.

We could have rendered judgment for Bell on the ground that the evidence did not show that Isenhower had paid any un-assumed debts and did not show the extent of his liability under the Bulk Sales Law or that he had become obligated for such debts in' any other manner. The record does show that Isenhower is liable to creditors for the value of the stock, etc. purchased, under the Bulk Sales Law, but since such value is not shown, no judgment could be rendered. Certainly elemental justice required us to remand this case rather than render judgment as we had the power to do. This remand, however, was the Court’s responsibility, not appellant’s. If we abused our discretion in remanding the cause, appellant should not be made to suffer for it. Appellant sought rendition of judgment on the ground that there was no evidence to support it. These assignments were properly presented to this Court.

The Supreme Court in Isenhower refused to consider the assignments by Bell filed in this Court under which the judgment could have been reversed and rendered in his favor, Bell not filing an application for writ of error, saying that since we reversed and remanded the case that Court could only “review the points of error in Bell’s brief in the Court of Civil Appeals to see if there was error assigned which would support the judgment of the Court of Civil Appeals.”

The rule, as stated in the leading case of Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, 239 S.W. 185, is: “But it seems to be the definitely settled rule that the party who prevailed in the Court of Civil Appeals is entitled to have his assignments, which were properly presented in that court, considered by the Supreme Court insofar as it may be necessary to determine what judgment should have been rendered by the Court of Civil Appeals.” This is the language of Mr. Justice Greenwood. The italics are mine.

The judgment which we should have rendered in Isenhower was, as clearly reflected by our opinion, one denying Isenhower any money recovery, unless, as we believed, in the interest of justice a remand was in order.

It is a very strange rule which deprived Mr. Bell of the total benefit of a good assignment of error because having received less under it than he was entitled he saw fit not to complain and accept a remand of the case rather than insist on its rendition.

Under the rule as stated in Holland v. Nimitz, supra, this result could not have occurred. Under it our judgment which, on proper assignments, vacated a Trial Court judgment which was wholly without evidence or law to support it would have been sustained.

ON MOTION FOR REHEARING

PHILLIPS, Justice.

Appellees Lashly and Mitchell call this Court’s attention to the fact that appellant has made serious charges against them in his First Amended Original Petition and in the two affidavits described in our opinion.

These appellees further point out to the Court that the appellant refused to give his-deposition in connection with such charges' or to be cross examined concerning them. It is true that at the time appellees sought to take appellant’s deposition, he refused.

Appellees further contend that while a careful reader of our opinion would discern that we are only stating and restating charges that have been made against ap-pellees from the pleadings and ex parte affidavits of appellant and that such charges are merely allegations rather than proven facts, a cursory reading of the opinion might lead one to believe that this Court has stated the charges as though they are true.

We do not intend to give this impression.

This is an appeal from a proceeding that never progressed past the summary judgment stage in the Trial Court. Appellant has yet to make his case.

We do believe, however, that appellant has presented enough summary judgment evidence to entitle him to a trial on his allegations of fraud.

Appellees contend that inasmuch as this Court holds that appellant ratified his contract with appellees, appellant has become bound by certain notes and judgments resulting from the contract, that this Court should have affirmed the Trial Court granting appellees’ (defendants and cross-plaintiffs below) cross motion for summary judgment and entering judgment thereon. Blythe v. Speake, 23 Tex. 429; Payton v. City of Big Springs, Tex.Civ.App., 157 S. W.2d 975, no writ history.

We hold that appellees are correct in their contention and we grant the appellees’ motion to this extent and now affirm the action of the Trial Court in granting summary judgment on appellees’ cross motion for summary judgment.

- Costs for this suit shall be apportioned equally between appellant and appellees herein.

The remaining points raised by the motions filed are hereby overruled.

Reversed and remanded in part and affirmed in part.


author: MURRAY, Chief Justice.

text:
    CITY OF SAN ANTONIO et al., Appellants, v. Ralph V. EASLEY, Appellee.
    No. 14129.
    Court of Civil Appeals of Texas. San Antonio.
    May 22, 1963.
    Rehearing Denied June 19, 1963.
    Crawford B. Reeder, San Antonio, Wag-goner Carr, Atty. Gen., T. B. Wright, Asst. Atty. Gen., Austin, Ritchie, Ritchie & Crosland, Dallas, for appellants.
    Schweppe, Schweppe & Allison, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by Ralph V. Eas-ley against the City of San Antonio and others, seeking a permanent injunction prohibiting the City from erecting a continuous concrete median strip on Southwest Military Drive in front of a restaurant operated by him. Such a strip would prevent vehicles being operated in an easterly direction on Southwest Military Drive from turning north so that they might reach plaintiff’s place of business, as they have been accustomed to do, and would prevent traffic on Hilton Avenue moving south, from entering the south lane of this drive.

The trial was to the court without the intervention of a jury and resulted in judgment granting the permanent injunction as prayed for, from which judgment the City and other defendants have prosecuted this appeal.

We here insert a plat showing the proposed median strip and the effect it will have upon the traffic.

Appellee contends that the construction of the median strip would take his property without compensation, but when analyzed the only injury he will suffer is free access to traffic traveling east on Southwest Military Drive. It can readily be seen from the undisputed facts that the construction of the proposed median strip will only prevent east-bound traffic on Southwest Military Drive from turning left directly into appel-lee’s restaurant or left into Hilton Avenue, and from leaving his restaurant and proceeding directly east on Southwest Military Drive. This may lessen the traffic which might reach his restaurant or, in any event, cause it to travel a circuitous route to reach his place of business. This is a !‘Flow of Traffic” and not an “Access” case.

As is said in 73 A.L.R.2d, p. 692, § 3:

“Regulations and regulatory devices, applicable to all traffic, such as one-way streets, stop lights, stop lines, prohibitions against certain turns, etc., which merely impose some circuity of route upon the abutter, have been universally upheld against contentions that access was impaired.”

An abutting property owner has no vested interest in the traffic that passes in front of his property. Pennysavers Oil Co. v. State, Tex.Civ.App., 334 S.W.2d 546. In State of Texas v. Baker Bros. Nursery, Tex., 366 S.W.2d 212, the Supreme Court, speaking through Justice Griffin, said:

“The Court of Civil Appeals further held that it was error for the trial court to sustain a motion made by the State in advance of the trial, which not only sought to suppress any reference by counsel to, or any evidence of, the direction of the flow of travel upon the proposed limited access highway resulting from the condemnation, but further to likewise suppress reference or evidence of any circuity of travel occasioned by such highway. This was not a case where all access to the new highway was denied, but a case where each remaining tract had access to the highway through the frontage roads alongside and parallel to the highway. Under these circumstances, there was no error by the trial court in sustaining the State’s motion to suppress.”

See also Holbrook v. State, Tex.Civ.App., 355 S.W.2d 235.

The purpose of the median strip is to aid in the regulation of traffic on both Southwest Military Drive and International Highway 35. This is a reasonable exercise of police power by the City. City of San Antonio v. Pigeonhole Parking of Texas, Inc., 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640.

Even if the evidence had shown that the City was acting arbitrarily, capriciously and unreasonably, which it does not, the appellee was not entitled to the injunction granted. Appellee’s property at most was only damaged, no part of it was actually taken. Equity will not enjoin the damaging of private property for public purposes. Koslosky v. Tex. Elec. Serv. Co., Tex.Civ.App., 213 S.W.2d 853; Webb v. Dameron, Tex.Civ.App., 219 S.W.2d 581.

There is no “taking” in the constitutional sense in the absence of a physical appropriation. Fort Worth Imp. Dist. No. 1 v. City of Fort Worth, 106 Tex. 148, 158 S.W. 164, 48 L.R.A..N.S., 994; McCammon & Lang Lumber Co. v. Trinity & B. V. R. Co., 104 Tex. 8, 133 S.W. 247, 36 L.R.A.,N.S., 662; Dallas Hunting & Fishing Club v. Dallas County Bois D’Arc Island Levee Dist., Tex.Civ.App., 235 S.W. 607. The most that appellee would be entitled to would be the right to maintain a cause of action for damages.

The judgment of the trial court is reversed and judgment here rendered that ap-pellee take nothing and pay all costs.


author: POPE, Justice.

text:
    MID-CONTINENT CASUALTY COMPANY, Appellant, v. Barbara Fay CONRAD et al., By Guardian, Appellees.
    No. 14071.
    Court of Civil Appeals of Texas. San Antonio.
    April 10, 1963.
    Rehearing Denied May 29, 1963.
    Keys, Russell, Keys & Watson, Corpus Christi, for appellant.
    Threlkeld, Saegert & Saegert, Seguin, David C. Cook, Corpus Christi, for ap-pellees.
   POPE, Justice.

This is a workmen’s compensation death case. Mid-Continent Casualty Company complains that the trial court admitted improper evidence in proof -of the cause of death and course of employment, and that the jury committed misconduct. We affirm the judgment.

James Conrad, at about eleven o’clock on the night of July 11, 1960, was found beside the truck which he had been driving. His truck had left the highway and run into a ditch and drainage pipe. This attracted the attention of a witness who found Conrad a few feet from the truck with the seat and various tools scattered on the ground. Conrad lived for only a few minutes, and never spoke after the accident. Plaintiffs insisted and the jury found that the death was the result of an accidental injury. Defendant disputed this, but there is no evidence of any other cause of death.

Plaintiffs introduced a death certificate, over defendant’s objection that it was not made by the local health officer. The certificate stated that Conrad died of a broken neck. In our opinion, the admission of the certificate did no harm, since there was ample other evidence to prove the point. The officer who made the investigation after the accident found deceased lying on the pavement. He said that Conrad’s head would turn almost around so he could look down his back. Amando Avalas, an eye witness to the impact of the truck in the ditch, testified that deceased’s head wiggled from side to side. The embalmer testified that his neck was more flexible than normal, and that the skin and muscles of the neck were loose. Dr. Sharp, the only medical witness, testified on cross-examination, after a statement of the signs, that “it would seem a reasonable medical probability that the cause of death was the fracture of the vertebra with a severance of the spinal cord.” There was, apart from the statement in the death certificate, proof of the cause of death, and its admission was not reversible error. Gregory v. Otts, Tex. Civ.App., 329 S.W.2d 904, 909.

A defense to the action was that Conrad was not within the course of his employment when he died at eleven o’clock on Sunday night. The essence of plaintiffs’ proof to meet this defense was that he was a truck driver who had devoted the major part of the day working on his truck, and that he was road-testing his truck when he was killed. The claimed error with respect to this defense is that the court improperly admitted evidence from several persons concerning conversations they had with deceased earlier during the day of the accident. To understand these claimed errors, we need to state some of the facts about which there is no dispute. Deceased was employed to drive a truck-trailer vehicle and was in Corpus Christi on orders, awaiting instructions for his next trip. While there, his employer paid his motel bill. At the time of the accident, deceased was driving the truck, without the trailer, and was headed toward Corpus Christi and his motel, just a few miles west of that city.' Witness Gilbert Martine testified of his personal knowledge that he had seen Conrad working on the truck all day, and that he saw, and even helped him for a moment working on the lights. When Martine started to testify about his statement to deceased concerning which screw fit the high light and which fit the low light, there was an objection which was overruled. The ruling was inconsequential, for the significant fact was that deceased was in fact working on the lights, which the witness properly testified about.

A motel operator testified that he saw deceased later on that same day, at about 7:00 p. m. Objection was made to his testimony that deceased then told the witness that he had installed new wiring on the trailer. The evidence was harmless, for it was cumulative of Martine’s earlier testimony.

Witness T. D. Whitehouse testified that he saw deceased about 9:30 or 10:00 p. m., when deceased had a cup of coffee. Over objection, he testified that Conrad said he was “having trouble with my truck” and that he was road-testing it. One hour later the accident occurred. We regard the evidence as admissible as a declaration tending to show the state of mind and immediate purpose of the declarant. Great American Indem. Co. v. Elledge, 159 Tex. 288, 320 S.W.2d 328; Prater v. Traders & General Ins. Co., Tex.Civ.App., 83 S.W.2d 1038.

Appellant urges that the repairs, if made by deceased, violated company orders. There was evidence that drivers were instructed at safety meetings, to make no repairs, but there was no proof that deceased was ever present or heard those instructions during the two months of his employment. Moreover, two officials of the business for which deceased worked stated that drivers were expected to make minor repairs. If, in fact, that is what deceased was doing at the time of the accident, this testimony was enough to prove that he was in the course of his employment. Cf. Texas General Indemnity Company v. Bottom, Tex., 365 S.W.2d 350. The fact

that deceased had spent all day working with the truck, and the fact that the tools were scattered about the scene of the accident, were sufficient to satisfy the jury that, at the time of the accident, he was still working with the truck.

Jury misconduct is the final point. Juror Mason, according to Juror Palmero, made a statement that truck drivers were permitted to work on their trucks and that it was customary for them to do so. Mason was unavailable and did not testify. Only two jurors other than Palmero testified. Dyer recalled the Mason statement a little differently. He recalled that Mason said a driver who was in trouble was expected to take care of the truck if necessary. He testified that Mason said that a driver should find out what was wrong with the truck and that drivers generally took care of their trucks, that' “it was normal for them to take care of them,” and if they didn’t take care of their truck they might lose a trip and both lose money. Parker, the jury foreman, did not hear the remarks attributed to Mason. He heard nothing about road testing other than the discussion of evidence about that matter admitted by the judge. These discussions occurred during deliberation on the issue which inquired about course of employment, a crucial issue, and the one that took most of the jury’s time.

The trial court in overruling the motion for new trial may have impliedly concluded, since it made no findings, that Mason!s misconduct statements, as recalled by Palmero, were not made at all. Rosamond v. Keyes, Tex.Civ.App., 255 S.W.2d 399. The court may have concluded that the statement was made, and even that it went beyond some of the evidence, but was harmless by reason of some of the evidence admitted without objection. Mr. McFadden, the president of the company for whom deceased worked, testified that drivers could make minor repairs. Mr. Harris, the general manager for the company at the time of the accident, testified to the same effect. He testified that drivers were not permitted to make road tests, but qualified it with the significant words, “when our mechanic is available.”

The judgment is affirmed.


author: McNEILL, Justice. STEPHENSON, Justice

text:
    J. M. GREEN, Appellant, v. WALGREEN DRUG COMPANY OF TEXAS, Appellee.
    No. 6487.
    Court of Civil Appeals of Texas. Beaumont.
    May 30, 1963.
    Rehearing Denied June 19, 1963.

      D. F. Sanders, Beaumont, for appellant.
    King, Sharfstein & Rienstra, Beaumont, for appellee.
   McNEILL, Justice.

J. M. Green sued Walgreen Drug Company for damages alleging his wife slipped and fell in one of its drug stores at a time when Mrs. Green was shopping therein. The petition asserted that while Mrs. Green was walking in an aisle she stepped upon “an excessive amount of wax which was on the floor, or other slippery substance”, placed there by the Drug Company employees, causing her to fall and be injured. Trial was to a jury and upon its verdict, judgment was rendered for the Drug Company and Green appealed. The parties will be described here as they were in the trial court.

The appeal involves only the correctness of the court’s charge. The presently pertinent issues submitted were: (1) Did Mrs. Green sustain personal injuries on May 21, 1958? To which the jury found she did. (2) Did she sustain such injuries when she slipped and fell at defendant’s drug store? To which it was found she did. (3) The next issue and its answer were: “Special Issue No. 2-A. Do you find from a preponderance of the evidence that at the time and place that Annie Mae Green slipped and fell, if you have so found, there was a puddle of wax on the floor of defendant’s drug store ? Answer: We do not.”

Plaintiff timely objected to the giving of this issue, and others following based thereon, upon the ground that such issue submits a theory of recovery entirely different from that pled by him. He says that the case was pled and tried on the theory that defendant negligently placed an “excessive amount” of wax on the store floor causing the fall whereas the issue No. 2-A inquired whether the fall was caused by a “puddle of wax”.

Plaintiff’s wife described the cause of her fall as follows:

“Q. At that time, when you were getting up, did you have an opportunity to observe any condition of the floor? A. I sure did.
“Q. Tell the jury what you found? A. Well, I found wax on the floor, it was kind of damp and it was on my dress. It was there on the floor, a puddle of it, which was not spread real good.
"Q. You say there was a puddle? A. Yes, sir.
. “Q. And how large a puddle? A. About six inches in diameter.
“Q. Was it a circular puddle? A. Yes, sir.
“Q. You observed that puddle? A. I certainly did.
“Q. You say it appeared to you to be wax? A. Yes, sir.
“Q. Now what parts of your dress did you have this material on ? A. Well, it was on my right side where I had fallen, on up and down my skirt.
“Q. Was it on your dress? A. Yes, sir, even on my hose.
“Q. Was there any evidence that you stepped in that puddle of wax? A. Only what I am telling you what I had on.
“Q. Well, did you have any of it on your shoes? A. Yes, sir.
“Q. Well, how far did your feet slip up in it? A. I can’t say exactly how far they skidded but they left skid marks on the floor.
“Q. There were skid marks on the floor? A. Yes, where my heels skidded.
“Q. Were any of those marks in the puddle? A. Yes, sir.
“Q. In other words, they extended out from that puddle to where your shoes were, is that right? A. That’s right.”
She further testified:
“Q. Did you see any wax on the floor at any other place in the store? A. It was wax — I didn’t see any flows of wax, it wasn’t like that, the floor was waxed.
“Q. When you say this puddle of wax, after you fell, about six inches in diameter, how thick was it, would you say? A. Thick enough it had a little ■scum there, had a rim around it.
“Q. Had a rim around it? A. Uh huh, my feet skidded through it.”

There was no other evidence as to any excess wax being on the floor which could have caused Mrs. Green’s fall. Hence, she pinpointed the cause of her fall as a “puddle of wax”. Defendant’s witnesses denied the existence of any such puddle, so the crucial and controlling issue was whether such “puddle of wax” was present as the cause of the fall. It is the trial court’s duty to submit the controlling issues made by the written pleadings and the evidence. Rule 279, T.R.C.P. But, in doing so he is not required to follow the exact wording of the pleadings. Texas Steel Co. v. Rockholt, Tex.Civ.App., 142 S.W.2d 842 (W.R.). The issue quoted above, and those following based thereon, fairly and substantially submitted the controlling question. Texas Steel Co. v. Rockholt, supra; Villanueva v. Rodriguez, Tex.Civ.App., 300 S.W.2d 668; Beaumont City Lines v. Williams, Tex.Civ.App., 221 S.W.2d 560, 564; Texas & N. O. Ry. Co. v. Pool, Tex.Civ. App., 263 S.W.2d 582. Evidence admitted under the allegation should be taken into consideration in forming the issue so that the jury may intelligently apply the fact raised to the issue formed. Texas Steel Co. v. Rockholt, supra. In framing issues the court is given a sound discretion. It was not abused here.

It is asserted that the court erred in failing to submit certain requested issues drawn in the language of the petition. Measured by the authorities cited above, the trial court’s action was proper. Rule 279 provides that it is not error to refuse issues which would submit various phases or different shades of the same issue. See also Hodges, Special Issue Submission in Texas, pp. 133-136.

The judgment is affirmed.

STEPHENSON, Justice

(dissenting).

I dissent. The issue submitted by the trial court was too restrictive. The court placed a greater burden upon the plaintiff than he should have been required to assume. Plaintiff plead an “excessive” amount of wax. The testimony showed a “puddle” of wax. The jury should not have been required to find a “puddle” of wax, as liability could have been based upon a finding of “excessive” amount of wax. The jury could have believed plaintiff was exaggerating the amount of wax, but still believed there was an excessive amount. The jury could have answered “yes” to an issue as to “excessive” amount even though they answered “no” to a “puddle”.

The witness would not have been permitted to testify that there was an “excessive” amount of wax on the floor, but had to use descriptive words to show the amount. She testified the amount was a “puddle”. This testimony should not have restricted her to an issue following the testimony.

In an automobile collision case a plaintiff may properly plead, as common law negligence, that the defendant was traveling at an excessive rate of speed. The testimony of plaintiff may then show defendant was traveling 68 miles per hour. A trial court could not then require the plaintiff to secure an affirmative finding to an issue as to whether defendant was driving 68 miles per hour, for the plaintiff would still be entitled to have an issue submitted as to whether the defendant was traveling at an excessive rate of speed.