author: RENFRO, Justice.

text:
    CITY OF FORT WORTH, Appellant, v. SOUTHWEST MAGAZINE, Appellee.
    No. 16328.
    Court of Civil Appeals of Texas. Fort Worth.
    May 18, 1962.
    Rehearing Denied June 15, 1962.

      S. G. Johndroe, Jr., City Atty., and Jerome H. Parker, Jr., Asst. City Atty., Fort Worth, for appellant.
    Treadaway & Blumrosen, Lubbock, Mc-Gown, Godfrey, Logan & Decker and Winfred Hooper, Jr., Fort Worth, for appellee.
   RENFRO, Justice.

The trial court entered a summary declaratory judgment in which it decreed that the plaintiff Southwest Magazine had such interest in a spur railway track owned by the Chicago, R. I. & Gulf Railway Co. in Seventh Street as to entitle plaintiff to damages against the City of Fort Worth for removal thereof.

By ordinance effective Feb. 8, 1907, the City provided: “Section 1. That the Chicago Rock Island & Gulf Railway Company is hereby authorized and empowered to construct, equip, operate and maintain a line of railway over, upon and across the following named streets in the city of Fort Worth, Tarrant County, Texas, to-wit: one track in the center of Seventh Street, from the east line of Pecan Street to the east line of Rusk Street, crossing all intervening streets by whatever name known, between said points, with the right and privilege of constructing, operating, equipping and maintaining a spur or switch tract on either side of said main traci, opposite each block of ground located between Pecan Street on the east and Rusk street on the west, so as to make each block of said ground what is known as ‘Tracf property.’ ” Section 2 provided in part: “It shall be the duty of The Chicago, Rock Island & Gulf Railway Company to construct and maintain its said line on Seventh Street, between the points above named, and the spur tracfs on either side to accommodate each block between Pecan and Rusk Street * *

A spur track serving Seventh Street between Grove and Jones Streets is the subject of this controversy.

The Chicago, Rock Island & Gulf Railway Company is not a party to the instant suit.

The City appealed from the judgment.

It contends: “Since appellee cannot, as a matter of law, have a vested right or irrevocable special privilege to have a railroad spur track permanently maintained in the street superior to the right of the public to use the street and superior to the right and duty of the city’s legislative body to control the public streets, the court erred in rendering summary judgment against appellant.”

Plaintiff defends the judgment on the contention that the spur' track constituted an easement superimposed on the street easement of the City and that it had a vested right to such easement subject to protection under the State and Federal Constitutions, and was entitled to compensation for the easement and removal of the track.

Plaintiff has owned the lot at the corner of Seventh Street since 1923. It has been doing business at that location since 1922. The area was platted and subdivided into town lots in 1856, and the dedication reconfirmed in 1877. In 1907, or soon thereafter, the spur track in question was constructed and put into operation and has continuously served that particular block. The track is located entirely within the confines of Seventh Street.

The building on plaintiff’s premises was erected in 1907 and was designed for the purpose of operating a printing plant; newsprint used in the printing operation is received in large, heavy cumbersome rolls, and delivered by the Railroad on the spur track. A heavy hardship will befall plaintiff if it cannot continue the use of the spur, both because of loss of customer purchases and cost of moving.

Although the ordinance heretofore mentioned did not fix a time limit for the franchise and “privilege of * * * operating * * * and maintaining a spur”, the City’s charter then in force and effect provided that no franchise for a longer period than twenty-five years should ever be granted or given by the City of Fort Worth. The franchise to the Railroad therefore expired in 1932. The record in the instant suit is silent as to any extension of the old or grant of a new franchise to the Railroad.

As a general rule the owner of a lot or a tract of land abutting upon a street acquires the fee to the center of the street subject only to the easement existing in favor of the public. Quanah Acme & P. Ry. Co. v. Swearingen, Tex.Civ.App., 4 S.W.2d 136; 39 Tex.Jur., p. 584, § 51. Under the police power, however, the use of property may be restricted to reasonable exercise when public safety or convenience so requires. City of Fort Worth v. Southwestern Bell Tel. Co., 5 Cir., 80 F.2d 972.

In J. M. Radford Grocery Co. v. City of Abilene, 34 S.W.2d 830, the Commission of Appeals held, in a case where the city had previously granted an abutting owner permission to build a platform in the street flush with the curb, that primarily the platform was erected and used by the company for private purposes and did not vest the company with a permanent property right. It was held the city was without power thus to surrender its authority over any portion of the street or to authorize the company permanently to appropriate to a private use the part of the street upon which the platform stood.

In case of conflict of interest between the public using the street and the railroad, the interest of the public is paramount, and the state may constitutionally insist that the streets be kept free of danger. Erie R. R. Co. v. Board of Public Utility Commissioners, 254 U.S. 394, 41 S.Ct. 169, 65 L.Ed. 322.

It was held in City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640, that, while the right of access of an abutting owner cannot be taken or destroyed without adequate compensation, the rule does not apply when a municipality invokes its police power for the protection of the health, safety and general welfare of its citizens.

According to Black’s Law Dictionary, Fourth Edition, “In real property law, the term ‘access’ denotes the right vested in the owner of land which adjoins a road or other highway to go and return from his own land to the highway without obstruction.” In the instant case the City is not taking away plaintiff’s “access” to its property, but is, by removing the spur tracks, taking from plaintiff the right to have boxcars moving and standing in a public street in front of plaintiff’s building.

The City has a nondelegable and inescapable duty to maintain its streets in usable condition,' and to abate any permanent obstruction or encroachment which would interfere with their present, or might interfere with their future, use by the public as the progress of the city may demand. Joseph v. City of Austin, Tex.Civ.App., 101 S.W.2d 381; City of San Antonio v. Ashton, Tex.Civ.App., 135 S.W. 757; Coombs v. City of Houston, Tex.Civ.App., 35 S.W. 2d 1066; City of Lockhart v. Commissioners’ Court of Caldwell County, Tex. Civ.App., 278 S.W. 319. It is also held in Joseph v. City of Austin, supra, “ * * * as against the public the city could not give the abutting property owners the right to construct permanent obstructions on any portion of a street dedicated to public use by map and plat of an addition.”

As of present, the spur, with standing or moving railroad cars, is an obstruction in a public street, though not particularly hazardous. Seventh Street, however, is a main artery from the west into downtown Fort Worth. When the projected improvement is completed whereby Seventh Street will join with an existing freeway system, traffic to the east will increase enormously along Seventh Street where the spur is situated. The continued use of the spur track would constitute a serious menace to the traveling public.

It was held in Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945: “No one has the inherent right to carry on his private business upon the public streets of a town or city. In order to protect the public from dangerous hazards, it is the plain duty of a town or city to make and enforce regulations covering the use of its streets, as well as for the convenience and protection of the public.” Any private use of a street which in any degree detracts from, hinders or prevents its free use as a public way to its full extent is an obstruction. Hover v. Oklahoma City, 133 Okl. 71, 271 P. 162.

The Supreme Court in Texas & N. O. R. Co. v. Schoenfeld, 136 Tex. 173, 146 S.W.2d 724, held: “The rule has long been established in this State that material in railroad tracks is regarded as being personal property, and in erecting spur tracks and other tracks on land not owned by it, upon discontinuance of the tracks the railroad company could remove the material of which they were made. It has also been held that material in a railroad track remains personal property, and does not become a part of the underlying real estate,” and further that the plaintiff on whose land the railroad was situated could not claim tracks as permanent fixtures. It is to be remembered that the spur in the instant suit was not on plaintiff’s land, nor will any of plaintiff’s land be taken; the spur track did not belong to plaintiff and was not constructed by the plaintiff, but was constructed and owned by the Railroad. There was no pleading or proof that the Railroad had any contractual obligations with the plaintiff to continue to operate upon and serve plaintiff on the spur. It is generally held that, apart from special contract, no right of action for damages against a railway company arises on the part of one who suffers damages by removal or abandonment of a spur track or station which serves his business, or which he has been accustomed to use, the reason generally given being that the railway company is under no implied obligation to continue the use of such track or station, or that the injury is not a special damage differing in kind from that sustained by the public generally, although it may be greater in degree, and that it is not, therefore, of a nature which may constitute the basis of a cause of action, but is damnum absque injuria. 23 A.L.R. 556; Helena & Livingston Smelting & Refining Co. v. Northern Pac. Ry. Co., 62 Mont. 205, 204 P. 370, 23 A.L.R. 546; Missouri, K. & T. Ry. Co. v. Colburn, 90 Tex. 230, 38 S.W. 153.

It should follow that if plaintiff would have no action for damages against the Railroad if the Railroad should voluntarily abandon the spur, plaintiff could have no action for damages against the City of Fort Worth when in the proper exercise of its police power it removes the spur track in the interest of public safety and interest.

It has been held that an abutting owner is not entitled to damages for loss of an operation which could not be carried on without the use of city property, Hammer v. City of Dallas, Tex.Civ.App., 273 S.W.2d 646; that “No use of the street by any of the plaintiffs can ripen into a private right by lapse of time, or by reason of the fact that they contributed as they did to the making of improvements in the street,” City of Fort Worth v. Gilliland, 140 Tex. 616, 169 S.W. 2d 149; abutting property owner has no property interest in curb taken up by city «ven though he had paid for the curb, Gillespie v. Fuller Const. Co., Tex.Civ.App., 66 S.W.2d 798, writ ref. It will be recalled plaintiff in the instant case did not build or pay for the spur.

In Bowers v. City of Taylor, 24 S.W.2d 816, the Commission of Appeals held that a city is a trustee for the public and, regardless of in whom the fee to the roadway may be, the city must always remain in position to exercise its legislative power when required.

In view of the authorities, we are convinced that plaintiff did not acquire such an easement or vested interest in the spur track in question that the removal of same would be a “taking” without compensation under the State and Federal Constitutions.

The judgment of the trial court is reversed and judgment rendered that plaintiff has no cause of action against the City of Fort Worth by reason of the removal of the spur track in question.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    Travis WARD, Appellant, v. FAIRWAY OPERATING COMPANY, Inc., et al., Appellees.
    No. 3973.
    Court of Civil Appeals of Texas. Waco.
    May 17, 1962.
    Rehearing Denied June 7, 1962.

      Roe, Ralston, & McWilliams, Dawson & Dawson, Corsicana, Willis Moore, Athens, for appellant.
    Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, Wm. J. McKie, Corsicana, Wilson, M'iller, Spivey, & Steger, Tyler, for ap-pellees.
   WILSON, Justice.

Appellees’ pleas of privilege were sustained, and the cause was transferred to Smith County. Appellant sued two corporations and four individuals in Navarro County for recovery of one-third of the capital stock of one of the corporations, Fairway Oil & Gas Co., Inc. He contends it was error to sustain the plea of the latter corporation because its registered office was located in the county of suit, and this was the county, consequently, “in which its principal office is situated” under subd. 23, Art. 1995, Vernon’s Ann.Civ.Tex.Stat. No other provision of this subdivision is here relied on. He asserts venue as to the other defendants was maintainable under subd. 4 of that statute.

Fairway’s charter designated a “ registered office” in the county of suit, and a “registered agent,” both as required by Art. 3.02, subd. A(10), Bus.Corp.Act, Vernon’s Ann.Tex.Stat. Admittedly it had no office in Navarro County for the transaction of corporate business, and it conducted no corporate business there; its only office for such purposes was in Smith County.

Appellant’s position is that before adoption of the Texas Business Corporation Act in 1955, Art. 1304, Vernon’s Ann.Civ.Tex.Stat, now repealed, required a corporate charter to specify the “place or places where its business is to be transacted”; that decisions had construed this provision as making the place so named in the charter conclusive as to location of the “principal office” for venue purposes under subd. 23; and the same construction should be given the language of the new corporation Act. Although appellant's argument is persuasive, and we confess some uncertainty, we are unable to agree; and in our opinion the court properly sustained the pleas.

Subd. 23, Art. 1995 permits venue to be maintained against a private corporation in the county in which “its principal office is situated.” Art. 2.09 of the Texas Business Corporation Act provides explicitly, however, that such corporations shall have and maintain a registered office “which may be, but need not be, the same as its place of business.” The very phrase, “but need not be” so modifies, qualifies and restricts the remainder of the provision that it denotes beyond question an intent to differentiate “registered office” and “place of business.” It emphatically negates an intent they must be identical. The venue provision in question, subd. 23, does not expressly concern either; its criterion is “principal office.”

The Business Corporation Act obviously effected a change in the requirement as to the contents of the articles of incorporation. It is no longer required that the charter set forth the “place or places where the corporate business is to be transacted”; it is to state only the location of the initial registered office and registered agent. Art. 2.11 makes the latter an agent for service of process, notice and demand on the corporation. The corporation code Committee of the State Bar states the “primary purpose” of the requirement of Art. 2.09 “is to provide an agent for service of process and other notices” on the corporation. 3A, Vernon’s Ann.Tex.Stat. p. 56. See also 1 Model Act (1960) p. 233. Hence, the decisions construing former Art. 1304 are neither controlling nor persuasive, and we do not believe the purpose of Arts. 2.09 and 3.02, subd. A (10) was to locate conclusively the principal office for venue purposes under subd. 23.

In Pittsburg Water Heater Co. of Texas v. Sullivan, 115 Tex. 417, 282 S.W. 576, 579, the term “principal office” as used in the venue statute, was said “clearly intended to fix one definite residence,” among others, where a corporation might be sued. “If the company maintains a principal office in this state, it resides there for the purpose of being sued.” There the location of the principal office was established as a fact on the trial of the plea of privilege. This fact was held to control venue.

The Supreme Court there told us that in the absence of statutory pronouncement a corporation resides “wherever it conducts its ordinary business.” Art. 2.09 tells us that the registered office need not be the place of business. In our case it is without dispute the corporation conducts no ordinary corporate business in the county of its registered office.

The venue fact to be determined here is whether the “principal” office of the corporation was situated in the county where the suit was pending. We do not think it is to be decided by an artificial or arbitrary formula. Designation of a “registered” office, in our opinion did not conclusively establish that fact. Absent a legislative requirement that the articles state the location of the principal office, we think its location under the existing statutes in the present case presents a question of fact. The evidence supporting the trial court’s implied finding here that the principal office was in fact in Smith County is without dispute. Are we, then, to say it was elsewhere, as a matter of law?

Appellant lists 29 states whose corporation statutes require charter designations of “principal office,” “principal place of business” or like statements. Statutes of seven states expressly authorize venue where the registered office is located. Statutes in four other states provide, in effect, that “registered” office and “principal” office are synonymous. Cases construing such statutes are obviously inapplicable. The Texas Act does not so provide, directly, and the omission would appear to be significant in determining it does not do so by implication. It is also significant that the Legislature, by Arts. 7.03, 7.06 and 8.16 specifically authorized venue of only one category of proceedings (dissolution, receivership, liquidation and revocation) in the county of the registered office. If appellant’s view is correct there was no necessity for such specific authorization. (See Art. 1995, subd. 30). Cf. Arts. 2.05, subd. A(l), 3.02, 7.06, Non-Profit Corporation Act, 1961.

In Higgins v. Hampshire Products, 319 Mich. 674, 30 N.W.2d 390. 175 A.L.R. 1083, relied on by appellant, the charter expressly named the county of suit as the location of the office and place of business; and there was no Michigan statute providing the registered office need not be the place of business, or principal office. State ex rel. O’Keefe v. Brown (Mo.1951) 235 S.W.2d 304, also relied on, applied a venue statute which expressly provided the residence of a corporation was where it maintained its registered office. These decisions are not helpful.

The general rule of construction governing has been firmly defined by the Supreme Court: To deprive a defendant of the right of trial in the county of residence the case must “clearly” come within a “well defined” exception. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, 828 and cases cited. Venue exceptions “must be strictly construed.” National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021, 1025, and “equal doubt between the exception” and the rule that defendant shall be sued in the county of residence “is to be resolved in favor of the rule.” Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, 972. The “principal Office” provision of subd. 23 is not, strictly, an “exception” to exclusive venue in the county of residence ; it is simply one method of determining residence for venue purposes. To hold as appellant contends would be to engraft another.

We see no basic distinction between the present problem and that presented in Shamrock Oil & Gas Corp. v. Todd, Tex. Civ.App., 166 S.W.2d 766 and Mergenthaler Linotype Co. v. Herrmann, Tex.Civ. App., 211 S.W.2d 633. After noting the Supreme Court cases holding no distinction is made for venue purposes between foreign and domestic corporations, these cases determined that compliance with Art. 2031a requiring a foreign corporation to designate a registered service agent by filing his name and address with the Secretary of State, did not constitute such registered agent an “agency or representative” under subd. 27, Art. 1995. This, because (1) the purpose of Art. 2031a was to assure a method of service of process, and (2) the registered agent carried on none of the charter purposes or business of the corporation. Subd. 27, it was held, refers to such an agency or representative as actually conducts the corporate business “in more or less regular and permanent form” in the county of suit. Milligan v. Southern Express, 151 Tex. 315, 250 S.W.2d 194. To our minds the Legislature has no more intended by Arts. 2.09 and 3.02 that “registered” office and “principal” office are necessarily the same, than it intended that a registered agent was an “agency or representative” under Art. 2031a.

It is said that by rejecting appellant’s construction of Art. 2.09 it may sometimes be difficult to ascertain the location of the principal office. It is no more difficult than was true under the above decisions; or than was then true under subd. 27 which also permitted venue where the foreign corporation’s “principal office” was situated — it having no duty to specify in a charter or otherwise where its business was to be transacted. The location of such principal office under subd. 27 was held to be a venue fact to be determined as are any other venue facts under the other subdivisions of Art. 1995.

Appellant asks, if the “registered office” of Fairway is not its domicile, where is it? The Supreme Court answers: “Wherever it conducts its ordinary business,” in the absence of statutory regulation. Pittsburg Water Heater Co. of Texas v. Sullivan, 115 Tex. 417, 282 S.W. 576, 579. Art. 2.09 answers, also, that the registered office is not necessarily the same as its place of business.

We recognize our views are not entirely in accord with those in United States Furniture Corp. v. Twilite Mobile Homes Mfg. Co., Tex.Civ.App., 355 S.W.2d 851, no rehearing. With hesitancy resulting from deference and respect for that opinion, we believe the Legislature did not intend to conclusively constitute the registered office the “principal” office of a corporation under subd. 23.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Pansy M. GRANT, Appellant, v. W. C. GRANT, Appellee.
    No. 3900.
    Court of Civil Appeals of Texas. Waco.
    March 29, 1962.
    Rehearing Denied May 17, 1962.
    Moore and Moore, Orgain, Bell & Tucker, Baldwin & Goodwin, Beaumont, for appellant.
    Everett Lord, W. G. Walley, Jr., Jack R. King, Beaumont, Crawford C. Martin, Hillsboro, for appellee.
   McDONALD, Chief Justice.

This is an appeal from an order entered 10 February, 1960 by the District Court ordering Pansy Grant to pay to W. C. Grant certain dividends from stocks in her possession, pending an appeal of a final decree of divorce between the parties entered on 17 December 1959. The appellant contends the order of 10 February 1960 is void, as there can be but one final judgment in a case; in this case the judgment of divorce entered on 17 December 1959. A super-sedeas bond was filed by the appellant herein which superseded the order appealed from.

In the meantime the judgment of divorce and property division entered on 17 December 1959 has been appealed from: affirmed by the Court of Civil Appeals, 351 S.W.2d 897; and writ of error denied by the Supreme Court of Texas. Such judgment finally disposed of all property matters between the parties to the case at bar, and renders the case at bar moot.

Appellate courts will not decide moot or abstract propositions. Cain et al. v. Local Union 47 Int. Bro. of Teamsters, 155 Tex. 304, 285 S.W.2d 942 ; 3 T.J.2d Sec. 50, p. 313; A case, issue, or proposition is, or becomes moot or abstract, when it does not, or ceases to rest on any existing fact or right. All rights and issues have been disposed of by the 17 December 1959 judgment between the parties, who are the same parties in the case at bar. Such judgment has become final as noted. The mere fact that a question of costs is involved does not prevent a case from becoming moot, and an appellate court will not ordinarily decide abstract and moot questions merely to determine the question of liability for costs. La Coste v. Duffy, 49 Tex. 767, 3 T. J.2d Sec. 50, p. 314 and cases collated in note 9, p. 314, 3 T.J. The appeal is dismissed.

Dismissed.


author: TIREY, Justice.

text:
    Warren LEWIS, Appellant, v. Ralph WRIGHT, Appellee.
    No. 3991.
    Court of Civil Appeals of Texas. Waco.
    April 26, 1962.
    Rehearing Denied May 17, 1962.
    John R. Bryant, Dallas, for appellant.
    Bonney, Wade & Morgan and Minor Morgan, Dallas, for appellee.
   TIREY, Justice.

Warren Lewis grounded his action for damages against Ralph Wright and Morris Robinson, individually, and dba Morris Robinson Motor Company, on fraud and deceit which he alleged was perpetrated on him by Wright and Morris Robinson, individually, and dba Morris Robinson Motor Company. Plaintiff took a default judgment against Morris Robinson, individually, and dba Morris Robinson Motor Company, and the cause proceeded to trial against defendant Ralph- Wright. At the close of the testimony Wright presented his motion for directed verdict, which was overruled, and the Court submitted the cause to the jury on 12 Issues, each of which was answered favorably to plaintiff, except Issue 7, which was not answered. That issue being: “Do you find from a preponderance of the evidence that Ralph Wright made such representation, if any you have found in answer to Special Issue No. 1, in a manner calculated to convey the impression that he had actual knowledge of the truth of such representation, if any?” Issue 1 referred to, was: “Do you find from a preponderance of the evidence that on or about October 10, 1959, Ralph Wright represented to Warren Lewis that Warren Lewis would receive the title to the Chevrolet car involved herein? To which the jury answered “Yes.” The Court overruled plaintiff’s motion for judgment on the verdict and his conditional request to file a separate finding of fact, and his motion to declare a mis-trial, and granted defendant’s motion for judgment non obstante vere-dicto, and decreed that plaintiff take nothing against Wright. The judgment further decreed that plaintiff recover from Morris Robinson, individually, and dba Morris Robinson Motor Company, the sum of $3500.00 as actual damages and the sum of $2200.00 as exemplary damages with interest upon both sums at the rate of 6% from January 6, 1961. Robinson did not appeal from the judgment entered against him. Plaintiff excepted to the judgment that provided that he take nothing against Ralph Wright, and perfected his appeal to the Dallas Court of Civil Appeals.

The judgment is assailed on what appellant designates as 3 Points. They are substantially to the effect that the Court erred: (1) In submitting Special Issue No. 6 when it was of the opinion that the answer to Special Issue No. 6 was conclusively established; (2) In granting Ralph Wright’s motion for judgment non obstante veredic-to; (3) In denying plaintiff’s motion for a new trial on the ground of newly discovered evidence.

Since the verdict was favorable to the plaintiff we have carefully considered the statement of facts in detail, and we find absolutely no evidence to tender an issue of fraud or deceit against any action, conduct or representation made by Ralph Wright to plaintiff. The evidence shows conclusively that Morris Robinson operated a rather extensive automobile sales business in the City of Dallas, individually, and dba Morris Robinson Motor Company; that Wright was a sales manager at one of these outlets, and that he had nothing to do with the over-all Robinson business, other than the cars sold in the particular outlet where he was manager; that Robinson maintained headquarters for his business where the principal paper work as to car titles was done, and this location was in a different location than the one where Wright worked. It is true that Wright was an employee of Robinson, and was on a straight salary, but he received no commission on sales of cars. This testimony is absolutely without dispute. It is true that plaintiff Lewis bought a car from the lot where Wright was sales manager, and that Morris Robinson had mortgaged this particular car to a finance company, and never paid off the mortgage. Some weeks later the finance company recovered the car from plaintiff Lewis through legal action. After that suit Lewis brought the instant suit, and alleged that Wright had promised him he would get a title to the car, and seek damages for loss of the car, the payments he had made, the car he had traded in and loss of income and exemplary damages. In the default judgment he recovered damages for all he asked from Morris Robinson, individually, and dba Morris Robinson Motor Company. Plaintiff tendered in evidence the order showing the sale by Morris Robinson Motor Company to plaintiff Warren Lewis, and this exhibit shows that Ashley was the salesman. There is printed on the sales order: “Morris Robinson Motor Co. Approved byand under the word “Approved” is the name “Wright”. Plaintiff tendered in evidence a final judgment in favor of Associates Investment Company entered against Morris Robinson, Individually, and dba Morris Robinson Motor Company and Warren Lewis, in the 44th Judicial District Court of Dallas County, in which judgment Associates Investment Company foreclosed its lien against Morris Robinson, Individually, and dba Morris Robinson Motor Company and Warren Lewis. There is not a scintilla of evidence to suggest that Wright knew that Lewis would not get his title, nor is there a scintilla of evidence to suggest that Wright had any reason to suspect or suspicion that Lewis would not get his title; nor is there a scintilla of evidence to indicate that Wright was acting for himself, but the record conclusively shows that he was acting solely as a sales manager, and there is nothing to indicate that he made any false statements or representations to plaintiff, Warren Lewis. The evidence and exhibits tendered by the plaintiff show conclusively that Ashley was the salesman; that Wright approved the sale, and there is nothing to indicate that when Wright approved the sale that he had any design in his mind to deceive or cheat the plaintiff by failing to carry out the sales agreement. Needless to say the evidence shows without dispute that the matter of the title papers had to be handled through the regular headquarters office, which office was maintained at a place other than the place where Wright was sales manager. See Collier v. Bankston-Hall Motors, Inc., Tex.Civ.App., 267 S.W.2d 898, Points 1 and 3, and cases there cited. We have carefully examined Points 1 and 3 and there is absolutely no merit in either of these, and each is overruled. No issue of deceit, fraud or misrepresentation is tendered in this record against Wright in his capacity as sales manager, and since he purported to act only for his employer, and since he made no fraudulent representations, and was guilty of no deceit in this transaction, as disclosed in this record, the court should have granted his motion for directed verdict, and having failed to do so, it was its duty to grant his motion for judgment non obstante ver-edicto, and accordingly, the judgment of the Trial Court in so doing, is affirmed.


author: CHADICK, Chief Justice.

text:
    APPROVED PERSONNEL SERVICE, Appellant, v. Mary Ann DALLAS et vir, Appellees.
    No. 7428.
    Court of Civil Appeals of Texas. Texarkana.
    May 22, 1962.
    Billy E. Lee, Houston, for appellant.
    James M. Harrington, Houston, for ap-pellees.
   CHADICK, Chief Justice.

This is a suit to collect a contractual debt. The judgment of the trial court is affirmed.

The appellant presents the single point of error that the trial court erred in holding a written contract made by a married woman with an employment agency as binding neither the woman nor her husband. Under the point the appellant argues that the judgment should be reversed because the service contracted for and rendered was a necessary, as that term is understood in Domestic Relations Law; and that by accepting the benefits of the contract the husband and wife were estopped to deny contractual liability.

The facts of the case are that the wife, who was not separated from her husband, simply signed a written contract agreeing to pay a fee to the employment agency if she accepted employment with an employer to whom she was referred by the agency. She was thereafter referred to an employer and accepted employment.

No case is cited holding a contract for services of the nature rendered here to be a necessary. There are numerous cases in which courts have, on the basis of facts •of the particular case, held medical, dental and legal services to be necessaries. On the other hand, in Winkie v. Conatser, Tex. Civ.App., 171 S.W. 1017, error refused, it was held that a broker’s service rendered in an exchange of the wife’s separate property was not a necessary. The facts and circumstances of a case control and mold the meaning of the term as here used and the formulation of a comprehensive definition is difficult. Decision in this case must be made on the basis that the term encompasses such services as the husband is financially able to and should provide for the wife’s benefit and that are suitable to the maintenance of the condition and station in life the family occupies. Speer, Law of Marital Rights in Texas, 236, Sec. 178 (1929 Ed.); Husband and Wife, 30 Tex. Juris.2d 28, Sec. 13.

No evidence was introduced in the trial of this case showing that the service contracted for by the wife should have been furnished by the husband, and that the service was necessary and suitable to the maintenance and condition or station in life occupied by this couple.

Appellant contends that the husband must have known that his wife was working, and with such knowledge accepted the benefit of her contract and he is thereby estopped to interpose coverture as a defense. The fact that he knew his wife was working does not compel the conclusion as a matter of law that he knew that she contracted with an employment agency to pay a commission for help in securing employment. The factual basis of estoppel is not proven.

The appellant’s point must be overruled. The judgment of the trial court is affirmed.


author: BELL, Chief Justice.

text:
    Gerald F. STONE, Appellant, v. James WILLIAMS et al., Appellees.
    No. 13687.
    Court of Civil Appeals of Texas. Houston.
    May 31, 1962.
    Rehearing Denied June 21, 1962.

      Herbert Finkelstein, Houston, for appellant.
    Philip M. Shafer; Stanley F. Swenson,. Houston, for appellees.
   BELL, Chief Justice.

Gerald F. Stone sued James Williams: and his wife, Ruth Williams, and H. C.. Williams, the brother of James Williams.. We will hereafter refer to James and' Ruth Williams as appellees. The suit as; reflected by appellant’s third amended original petition was in trespass to try-title whereby he sought to recover title and possession of the East ½ of Lot 12’ and all of Lot 13 in Block 12 in Blossom) Heights, Section 2, an addition in Harris: County out of the E. P. Whitehead Survey in Harris County. Alternatively, he sought foreclosure of a deed of trust lien given to secure a $6,000.00 note, but as the deed of trust described the property as being in Blossom Heights in the E. P. Whitehead Survey instead of Blossom Heights, Section 2, he sought reformation because of mutual mistake. Also alternatively, he sought reformation of a mechanic’s lien contract and foreclosure to satisfy the cost of repairs in the amount of $2,600.00 and also sought foreclosure of a vendor’s lien on the theory of his being subrogated to-the lien of Lewis and Inkley & Company, the vendors, to whom he paid $1,041.91 of the purchase price of the lot.

The appellees defended by pleading a general denial and not guilty and on the theory that all rights asserted by appellant were acquired as a result of fraud practiced on them by appellant and that there was a failure of consideration.

On trial to a jury, the jury answered issues submitted in a manner so as to establish fraud. The court rendered judgment against appellant.

The evidence reflects that on May 18, 1956 L. M. Inkley as vendor executed what is called “Contract for Deed” to James Williams and wife, Ruth Williams, as purchasers, under the terms of which he agreed to convey to them the “E. t/z of Lot 12 and all of Lot 13, Block 12, (80 X 125) in Blossom Heights, a suburban addition to the City of Houston, Harris ■County, Texas, said subdivision being a part of the E. P. Whitehead Survey,” upon the payment of $1,192.50. The sum •of $15.00 was paid down and the balance was payable, with interest, at the rate of $13.00 per month. Sometime thereafter James Williams bought a house and moved it onto the property. He wanted to sell the house and lot to his brother, H. C. Williams, for $4,000.00. However, James wanted all of his money and his brother 'had only $250.00 to pay in cash. Without giving the details of his efforts, it suffices to say that James made some effort to arrange for a loan on the property so his brother could purchase it and James could get his money. He was not successful. Then in some way not entirely clear the appellant showed up. James testified he told appellant he wanted to see about financing so the property could be sold to his brother. Appellant told him the house ■needed some repairs and estimated they would amount to about $1,500.00. Appellant told him he and his wife would have to execute a note and mechanic’s lien but they would not have to pay the note but the brother would assume the note. Appellant further represented the property would be sold to the brother for $6,000.00, the amount of the note, and appellant •would pay for the repairs, the balance ■owing Inkley and Lewis and would then pay him $3,000.00. Contemporaneously with these representations, and in reliance •on them, appellees on December 21, 1957, executed a note for $6,000.00 and a ■mechanic’s lien contract covering the .above described property in Blossom Heights. After certain .repairs were completed and on January 8, 1958, appellees executed their note for $6,000.00 and a deed of trust on the property in Blossom Heights. This last note was in renewal of the temporary note of December 21, 1957, and was payable in monthly installments of $50.00, the first installment being due February 10, 1958. James testified that appellant repeated his representations at this time and promised him the $3,000.-00 the next day. Though James has sought payment appellant has consistently refused payment and denied his promise to pay and has contended his agreement was only to pay Inkley and Lewis $1,041.-91 the balance of the purchase price and to finance the repairs which he alleges were of the cost of $2,600.00.

The above papers were delivered to the title company by appellant. It appears that a Mr. Sicala had procured another party to lend appellant $3,000.00 and the note and deed of trust executed by appel-lees were assigned by appellant as collateral security for the loan to him. Such party, as shown by the record, has agreed to appellant’s pursuing his suit. Out of this $3,000.00, the title company made distribution. Mr. Sicala received $597.80 as a commission of some kind and a brokerage fee of $200.00 for getting the loan for Stone. Stone received $1,000.00 and Lewis and Inkley received $1,041.91. Some small amounts went for taxes and closing costs. Stone’s $1,000.00 purportedly represented money he still owed on the repairs of $2,600.00 he says he made.

On January 11, 1958, Mr. Lewis executed a deed to appellees conveying the above numbered lots in Block 12, Blossom Heights, Section 2. For the first time the property is described as being in Section 2. The mechanic’s lien, the contract for deed, and the deed of trust had shown only that the lots were in Block 12, Blossom Heights, a subdivision in the E. P. Whitehead Survey in Harris County. This distribution of $3,000.00 plus $1,600.-00 Stone says he otherwise paid for repairs amounts to $4,600.00 only though the note was for $6,000.00 with interest at the rate of 8'% per annum.

Thereafter appellant refused to pay any money to James and James made no payment on the note. We should add that just before Christmas Stone gave James $200.00, Stone saying it was to help James save some furniture from foreclosure. Stone declared the note due and requested the trustee to sell the property.

On March 10, 1958, the trustee posted notices, describing the property at the described lots in Block 12 of Blossom Heights, Section 2, though the deed of trust described it as being in Blossom Heights. The notice stated the sale would be held on the first Tuesday in April. On April 1, 1958, the trustee executed a deed reciting the sale was held March 10, 1958, and described the property as being in Blossom Heights, and not in Section 2. The deed was to appellant. On January 8, 1960, the trustee executed a correction deed reciting the trustee’s sale was held April 1, 1958 and describing the property as being in Blossom Heights, Section 2. The evidence showed Blossom Heights and Blossom Heights, Section 2, are adjoining subdivisions. They were platted about a year apart. There is no Block 12 in Blossom Heights.

The case was submitted to the jury on seven special issues. Special Issue No. 1 inquired as to the reasonable value of the repairs made and the jury answered $1,-000.00. The other issues inquired as to whether at the time the note and mechanic’s lien were executed on December 21, 1957, and at the time the note and deed of trust were executed January 8, 1958, appellant represented to appellees, James and Ruth Williams, he would procure a $6,000.00 loan on the property, and out of it pay appellees $3,000.00 and pay Inkley and Lewis and the costs of repair; whether said appellees relied thereon; and whether at the time appellant did not intend to pay appellees $3,000.00.

The jury, understandably and upon what we deem sufficient evidence answered all issues in the affirmative.

Before the case was submitted the appellant moved for an instructed verdict on the ground that appellees were seeking to impeach or set aside the trustee’s deed after foreclosure. The motion was denied.

Appellant excepted to the submission of each issue on the ground that there was no evidence to support its submission. ' He also excepted to submission of any issue on the same basis as urged in his motion for instructed verdict. Appellant made no request for the submission of any special issues.

The trial court, upon motion of appel-lees, disregarded the answer to Special Issue No. 1 because immaterial in the light of the jury’s answers to the other issues, which in effect found appellant guilty of fraud that tainted the whole transaction, and entered judgment favorably to appellees.

The evidence as to the representations of appellant that he would get a-loan of $6,000.00 and pay Inkley and Lewis, pay for the repairs, and pay appel-lees $3,000.00, was properly admitted and is sufficient to support the jury’s verdict and the court’s judgment. The evidence is not admitted in such a case to vary, add to or contradict the terms of the instruments attacked, but for the purpose of showing because of fraud no legal instrument exists. McCormick and Ray, Texas Law of Evidence, second ed., Sec. 1661; Rapid Transit Ry. Co. v. Smith, 98 Tex. 553, 86 S.W. 322; Edward Thompson Co. v. Sawyers, 111 Tex. 374, 234 S.W. 873; Texas & Pacific Ry. Co. v. Presley, 137 Tex. 232, 152 S.W.2d 1105.

When the evidence is admitted and other evidence shows the representations to be false and that the complaining party relied on them to his damage, fraud is established that avoids the instrument sued upon. Where, as here, the representation is a promise to do something in the future and there exists at the time of the representation an intention not to perform, there is the representation of an existing fact. While a mere failure to perform is not sufficient to prove the existence of an intention not to perform at the time the promise is made, where the party allegedly making the promise denies making the promise, there is sufficient evidence to support a finding that there was the absence of intention to perform when it was made. Texas & N. O. Ry. Co. v. Thompson, 1 S.W.2d 938, C.C.A., aff’d 12 S.W.2d 963, Com.App.

In the case before us appellant denied making the promise. This is sufficient, together with refusal to perform, to support the finding that at the time the promise was made appellant did not intend to perform.

The trustee’s deed of January, 1960, furnishes appellant no support. At the time of the trustee’s sale in 195S, he was acting under a deed of trust that conveyed lots in Blossom Heights and not in Blossom Heights, Section 2. Appellant must, therefore, rely on the description as contained in the deed of trust of the E. ¡½ of Lot 12 and all of Lot 13, Block 12, Blossom Heights, as being sufficient to convey lots of the same description in Blossom Heights, Section 2. We deem such description to be insufficient under the holding of Texas Osage Cooperative Royalty Pool v. Colwell, 205 S.W.2d 93, C.C.A., ref., n. r. e. The result is that there has never been a legal foreclosure on the lots in Blossom Heights, Section 2. The mechanic’s lien and deed of trust describe lots in Blossom Heights. Appellant did not ask for the submission of any issue on reformation nor move for judgment on such theory and he has thus waived any cause he might have had. Rule 279, Texas Rules of Civil Procedure. Too, even if reformation of the deed of trust and mechanic’s lien had been granted as to description, appellant would not have been entitled to foreclosure because the jury’s finding of fraud required a judgment avoiding them and the $6,000.00 note which they were given to secure.

Appellant urges that in any event he would be entitled to be subrogated to the rights of Inkley and Lewis to the extent of $1,041.91 and they had a vendor’s lien. Too, he says, he would be subrogated to the lien of the taxing authorities to the extent of some small amount of taxes he paid. As for the taxes, it is to be answered that they were not sued for.

While, in a case where no fraud is involved, the person who at the request of the debtor pays the creditor will be sub-rogated to the lien of the creditor, where fraud permeates the transaction such person can claim no rights from any part of the transaction tainted by the fraud. Huey v. Brand, Tex.Civ.App., 92 S.W.2d 505, aff’d Borger v. Brand, 131 Tex. 614, 118 S.W.2d 303; Chambers v. Wyatt, 151 S.W. 864, C.C.A., no writ hist.

Here any rights in appellant came to him as a result of the same transaction. The appellees, at the time appellant put in his appearance and made the false representations as found by the jury, were obligated to pay $13.00 per month and were current in their payments. They did not ask appellant to make the payment, though it is true they supposed he would since he promised to do so. Yet appellant’s asserted right to subrogation is based on the transaction that was brought about by the fraudulent scheme of appellant. His fraud permeated the whole transaction. Appellant says appellees are unjustly enriched. Appellees offered to convey the property if appellant would pay the $3,000.00 he promised. He refused the offer.

The judgment of the trial court is affirmed.

COLEMAN, J., not sitting.


author: POPE, Justice.

text:
    TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Ardley CROSS, Jr., Appellee.
    No. 13915.
    Court of Civil Appeals of Texas. San Antonio.
    May 9, 1962.
    Rehearing Denied June 13, 1962.
    Groce & Hebdon, Charles L. Smith, San-Antonio, for appellant.
    Rudy Rice, Frank R. Southers, San Antonio, for appellee.
   POPE, Justice.

Ardley Cross, Jr., obtained a judgment on a verdict for total and permanent incapacity in a compensation case. Texas Employers’ Insurance Association attacks the findings (1) that Cross sustained an accidental injury, and (2) that he was totally and permanently disabled. The complaint is that those findings have' no support in the evidence, and alternatively that they are against the great weight of the evidence. We affirm the judgment.

Contact dermatitis was the injury. The Association reasons that the proof shows that it was an occupational disease because it was “acquired in the usual and' ordinary course of an employment, which from common experience is recognized to be incidental thereto.” Barron v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 36 S.W.2d 464. Cross argues that there was evidence of an accidental injury which the Barron case defines as “something which occurs unexpectedly and not in the natural’ course of events. * * * A distinguishing characteristic of an accidental injury is that it can always be traced to a definite-time, place, and cause.” The Association* relies upon certain evidence, including-opinion evidence, that indicates the injury was an occupational disease. This evidence is met by direct and inferential’ evidence to the contrary. The jury had-the right to make its own determination, about the weight and credibility of the evidence.

Cross began working about July 1, 1958, for a company which was constructing the-foundations for expressway viaducts in< San Antonio. This required the drilling of holes which were forty-two inches in diameter, into which concrete was poured for the erection of concrete shafts. As the concrete filled the hole, a crane would lift a steel casing inside the hole, and sometimes an excess of concrete would flow above the point at which a cap or collar was required to be set at the top of the shaft. It was Cross’ duty to set this cap at the proper level. It was also his duty to dig out all excess concrete before it hardened. The claimed accident occurred on August 15, 1958, about forty days after he began this work with concrete. During that time about two foundations were poured each day, and on two former occasions he was required to dig out the excess, concrete.

There was evidence that on August 15, when the casing was pulled, one or two yards of excess concrete flowed into and around the shaft. Cross, working with hip boots, was scooping out this concrete with his hands, which was necessary in order to get the concrete from around the steel reinforcements. Cross stated, “That day I fell in the hole there I got in above my boots. * * * I slipped and fell in the hole. With all that wet concrete around the top, I slipped and fell in the hole.” He had earlier stated, “When you get down in this soft cement you can’t stand on it, you just go down in it. Well, that is what I did, and I had it all over me. * * * Well, anyhow, whenever I had taken and finished this up right here as far deep as I could with the shovel, I don’t know exactly how deep it was to be sure about it, but I got off in this hole somehow, I don’t know how, but anyhow, I got plumb off and cement all over me. I was in water and cement trying to get this out of here before it got hard.” On cross-examination, Cross explained that in doing his work, he would ordinarily get some cement on him, but “you don’t take a bath in it like I did that day.” He stated that the cement went down in his boots. There was other evidence to the same effect.

Prior to this incident, Cross had never had any skin trouble. After he was saturated with concrete, eruptions occurred on his hands and legs above his boot tops. Swelling, itching, inflammation and blisters then spread to his arms, feet, back, chest, and finally covered his entire body.

Because contact dermatitis is listed in Section 20, Article 8306, Vernon’s Tex.Civ.Stats., as one of the diseases which is compensable as an occupational disease, does not mean that it could never be the result of an accidental injury. The decisions even prior to the amendment of the occupational disease statute in 1955, permitted recovery, as accidents, for some of the things which are listed in that statute, provided they met the test stated in Barron v. Texas Employers’ Ins. Ass’n, supra. See Aetna Casualty & Surety Co. v. Bailes, Tex.Civ.App., 285 S.W.2d 886; Texas Employers Ins. Ass’n v. Freeman, Tex.Civ.App., 266 S.W.2d 177; Texas Employers Ins. Ass’n v. Wade, Tex.Civ.App., 197 S.W.2d 203; Safety Casualty Co. v. O’Pry, Tex.Civ.App., 187 S.W.2d 578; Federal Underwriters Exchange v. Price, Tex.Civ.App., 145 S.W.2d 951; Maryland Casualty Co. v. Rogers, Tex.Civ.App., 86 S.W.2d 867; Hartford Accident & Indemnity Co. v. Jones, 5 Cir., 80 F.2d 680. There was evidence of an accidental injury, and it is not against the great weight of the evidence.

The findings of total and permanent incapacity also have support in the evidence. By November 19, 1958, Cross’ condition had become so severe that he stopped work, though he had been transferred to work which would avoid his contact with concrete. A month and a half later he took a job in Freer, Texas, driving heavy equipment, and again avoided contact with concrete. After two weeks he began driving a tractor. He then drove a water truck. His skin condition continued so that he again had to quit work. After four months of unemployment, he took a job driving earth-moving equipment. He worked a few months, was unemployed six months, began work driving earth-moving equipment for Crea Brothers, worked five weeks, and was again out of work for four months. He then worked as a dragline operator in the San Antonio River. His condition persisted. When that job terminated, he was unemployed for a month and a half and then operated a motor crane from November, 1960 to January, 1961. The proof, therefore, is that Cross was able to obtain and retain employment and perform his usual tasks for six months out of the first year following his accident, and for fifteen weeks during the next year, and that he continues to suffer from the skin irritations. He can not perform the only kind of work he knows, because his skin is sensitive to those things which are incident to that work. The record contains evidence of total- and permanent incapacity, and it is not against the great weight of the evidence. Trinity Universal Ins. Co. v. Scott, Tex.Civ.App., 342 S.W.2d 348.

The judgment is affirmed.


author: HUGHES, Justice.

text:
    TRAVIS-WILLIAMSON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1, Appellant, v. Holland PAGE et al., Appellees.
    No. 10886.
    Court of Civil Appeals of Texas. Austin.
    May 16, 1962.
    Rehearing Denied June 13, 1962.

      J. C. Hinsley, Austin, for appellant.
    Arthur P. Bagby, John C. Foshee, Austin, Polk Shelton, Cofer & Cofer, Douglass D. Hearne, Austin, House, Mercer, House & Brock, San Antonio, for appellee.
   HUGHES, Justice.

We have previously granted the motion of appellant, Travis-Williamson County Water Control and Improvement District No. 1, to extend the time for filing a statement of facts in this case. The motion was timely filed under Rule 386, Texas Rules of Civil Procedure. Filed in connection with the motion was an affidavit of the official court reporter who reported this 18-day trial in which he stated that he “could not” prepare the statement of facts in sixty days, the time allowed by the Rules. It appears from the record that the statement of facts was actually prepared and filed in sixty six days. We affirm our ruling in extending the time for filing the statement of facts herein.

This is a controversy between the Water District and appellees, Holland Page and R. Ward Smith, growing out of the construction of a water system for the District by Holland Page, the construction contractor, and his subcontractor, R. Ward Smith. Globe Indemnity Co., an appellee herein, was surety on a performance bond given by Smith to Page.

Holland Page was plaintiff below and R. Ward Smith while nominally a defendant is aligned with Page insofar as they both sought a money judgment against the District on the construction contract.

After an extended jury trial, judgment was .rendered against the District and in favor of Page for $29,629.95, and in favor of Smith for $15,854.77, plus 6% interest from March 15, 1958.

Appellant's first three points are that the Court erred in rendering judgment for the amounts indicated and in not rendering judgment for it for liquidated damages provided for in the construction contract for delay in the completion beyond the time allotted.

We will discuss the latter point first.

The contract provided that for each day’s delay beyond the 210 days allowed “to substantially complete” the contract, the District could withhold as liquidated damages the sum of $100.00.

The 210 days allotted for completing the contract expired July 31, 1957. Two days earlier, the engineer for the Water District advised Page that the work was not substantially completed and that liquidated damages would be assessed commencing July 31st. The jury disagreed with this conclusion of the engineer and found that on July 31st the work under the contract had been “substantially completed by Smith and ¡Page.”

The term “substantially completed” was defined in the contract as follows:

“By the term ‘substantially completed’ is meant that the structure has been made suitable for use or occupancy and is in condition to serve its intended purpose, but still may require minor miscellaneous work and adjustment.”

It is undisputed that the contract, on July 31st, was not fully completed. In fact, it was never fully completed by Page and Smith. It was completed by Bland Construction Company, a matter to be later discussed.

It is also undisputed that by May 10, 1957 the water lines constituting the water system as then contracted for had been laid, tested, filled with water, and were then being used to serve the customers of the District.

Colonel Homer Trimble, engineer and supervisor of construction for the District testified that on July 10, 1957, “ * * * the work that remained to be done related primarily, almost exclusively, to what can fairly be called clean-up and adjustment works. * ⅜ ⅜ ”

It is our opinion that the answer of the jury finding substantial completion of the contract is amply supported by the evidence. Atkinson v. Jackson Bros., Tex.Com.App., 270 S.W. 848, 38 A.L.R. 1377.

Appellant contends that this finding of the jury is of no avail since it is undisputed that its engineer did not issue a certificate of completion as provided in the contract. We quote from the contract:

“25. FINAL COMPLETION AND ACCEPTANCE. Within ten (10) days after the CONTRACTOR has given the ENGINEER written notice that the work has been completed, or substantially completed, the ENGINEER and the OWNER shall inspect the work and within said time, if the work be found to be completed or substantially completed in accordance with the plans and specifications, the ENGINEER shall issue to the OWNER and the CONTRACTOR his Certificate of Completion, and thereupon it shall be the duty of the OWNER within said ten (10) days to issue a Certificate of Acceptance of the work to the CONTRACTOR.
“26. FINAL PAYMENT. Upon the issuance of the Certificate of Completion, the ENGINEER shall proceed to make final measurements and prepare final statement of the value of all work performed and materials furnished under the terms of the Agreement and shall certify same to the OWNER, who shall pay to the CONTRACTOR on or before the 15th day after the date of the Certificate of Completion the balance due the CONTRACTOR under the terms of this Agreement, provided he has fully performed his contractual obligations under the terms of this contract; and said payment shall become due in any event upon said performance by the CONTRACTOR.
“27. ENGINEER’S AUTHORITY AND DUTY. It is mutually agreed between the parties to this Agreement that the ENGINEER shall supervise all work included herein. In order to prevent delays and disputes and to discourage litigation, it is further agreed by and between the parties to this contract, that if it cannot be otherwise agreed, the ENGINEER shall in all cases determine the amounts and quantities of the several kinds of work, which are to be paid for under this contract, and he shall determine all questions in relation to said work, and the construction thereof, and he shall in all cases decide every question which may arise relative to the execution of this contract on the part of said CONTRACTOR, that his estimates and findings shall be the conditions precedent to the right of the parties hereto to arbitration or to any action on the contract, and to any rights of the CONTRACTOR to receive any money under this contract; * * *»

To sustain its contention, appellant cites The City of San Antonio v. McKenzie Const. Co., 136 Tex. 315, 150 S.W.2d 989, and other authorities. This case stands for the rule that the acts of an engineer, as here, who is given final authority as to matters committed to his judgment, cannot be impeached except for fraud, misconduct, or such gross mistake as would imply bad faith.

Page, here, pleaded that the refusal of the engineer to issue a certificate of completion was arbitrary and in violation of the contract.

We believe that such pleading was within the ambit of conduct proscribed in McKenzie. Arbitrary acts are capricious, despotic, tyrannical, bound by no law, and are performed without regard to principles. We could not sustain an arbitrary act of a supervisory engineer with any better grace than we could sustain his fraudulent act.

We believe the refusal of the engineer to issue the certificate of completion, in the light of the jury finding, was arbitrary as being without legal warrant in the sense that it was contrary to the terms of the contract which defined his authority, and by which he and the parties were bound. See: Harrell v. City of Lufkin, Tex.Com.App., 280 S.W. 174.

This brings us to a consideration of appellant’s contention that it should have been credited on the sum due Page on the contract with the amount paid Bland Construction Company to complete the contract. This amount was $39,234.07.

The contract provided several methods for completing the contract in the event, as here, the contract was abandoned by the contractor prior to completion. The method selected by appellant was through notice and sealed bids. Bland Construction Company was awarded the completion contract for the sum stated and it completed the original contract to the satisfaction of appellant.

The engineer for appellant had listed certain items considered by him to be deficiencies in the performance of the construction contract at the time of its abandonment by Page. An issue was submitted to the jury inquiring as to the reasonable cost of remedying these deficiencies and it answered: $14,990.00.

Appellee Smith, in his brief, in listing the “calculations upon which the Trial Court’s judgment is based” deducts from the amount due Page the sum of $14,990.00 as “reasonable cost of completion as found by the jury.”

We quote appellant’s position in this regard:

“The express provisions of the contract having been followed in letting the new contract for the completion of the work, the defaulting contractor on the original contract cannot now be heard to say that the price for completion in the contract of Bland Construction Company was not a reasonable price, in the absence of allegations and proof that there was collusion or fraud in the awarding of such contract. All of the evidence negatives any such fraud or collusion, and neither Holland Page nor R. Ward Smith alleged any such fraud or collusion in the awarding of this contract.”

Appellee Page makes no specific answer to this problem which appellant presents. He does assert that the jury finding of $14,990.00 is supported by the evidence even though it is well under his testimony that $25,000.00 would be required to complete the contract.

We can think of no valid reason for discarding the remedy which the parties agreed should be adopted if the eventualities found here occurred. It would not do, we believe, for appellant to be required to assume the risk of an unfavorable jury finding such as we have here when appellant complied with the contract and ap-pellee Page is the defaulting party.

Try the shoe on the other foot. Suppose the jury here, on competent evidence hut in spite of the Bland contract, had found that the reasonable cost of completing the job was $100,000.00. Would appellee Page stand on the verdict or the Bland contract? The answer to the problem presented is simple. The jury did not make this contract. The jury cannot rewrite this contract.

It should be noted that the contract provided in the event the contractor abandoned the contract and it was completed by a successful bidder that:

“In case of any increase in cost to the OWNER under the new contract, as compared to what would have been the cost under this contract, such increase shall be charged to the CONTRACTOR and the SURETY shall be and remain bound therefor. However, should the cost to complete any such new contract prove to be less then what would have been the cost to complete under this contract, the CONTRACTOR and/or his SURETY shall be credited therewith.”

This provision seems to be fair to both parties and, as stated, we are unable to •reach any conclusion other than that the contract should be enforced according to its terms. If contracts cannot be so enforced, then there is little reason to make them.

It is our opinion that the judgment in favor of appellee Page should be reduced by the difference between the jury finding of $14,990.00 and the Bland contract of $39,234.07 or $24,244.07.

The same error made in assessing the Page recovery is reflected in the recovery to appellee Smith. Substituting the Bland completion figure for the completion cost found by the jury, it appears that appellee Smith has been overpaid; hence, he was not entitled to recover anything.

Appellant also complains that the value of extra work done by Smith and allowed by the jury in the sum of $31,859.04 is without evidentiary support in some particulars. It refers to an item of $644.51 for repairing leaks in water tower, an item for $458.14 “for working at pump house,” and say that these items are included in the general contract.

Appellant also states that an item of $1,205.54 refers to a transaction between Page and Smith in which it was not concerned.

Appellant also complains of many other items making up the total of this extra work but they seem to be complained about only because they appear in the Page-Smith contract. The entire argument of Smith in reply to appellant here is:

“R. Ward Smith testified that all of the extra work that he did for the Water District was done at the direct request of the District’s Engineer, Trimble, and Trimble assured Smith all during the progress of this extra work that he, Smith, would be paid by the District.
“The judgment rendered by the Trial Court for Smith against the District was based solely upon the extra work, not contained in the original contract, which Smith performed at the request of and for the benefit of the Water District.”

We agree with Smith that appellant should pay for extra work performed for and accepted by the District. Extra work, however, is not work called for by the original contract, nor is it, as to appellant, work performed by Smith for Page not connected with or for the benefit of appellant.

As to the items specifically mentioned, we hold that they do not constitute extra work for which Smith is entitled to compensation and that they should be deducted from the sum allowed by the jury. See Rule 419, T.R.C.P.

Appellant’s fourth and fifth points, briefed together, are that the Court erred in overruling its motions for an instructed verdict and for a summary judgment.

The basis of these motions was that the District had no contractual relations with Smith; that its contract with Page forbade subletting without its consent, which was not given; that Smith did not ask for judgment against the District for extra work, but only as against Page; that Smith, through his agent Fainter, agreed that extra work was to be done at unit prices and not at field cost plus 15%, as found by the jury; and that Smith had been paid for the extra work.

We will defer until later a discussion of the method of compensating Smith for extra work as there are more specific points dealing with this subject.

We consider the pleadings of Smith adequate to support a claim against appellant. Smith filed a cross action against the District and others in which he alleged his damages and prayed for relief either by way of rescission or by recovery of damages.

We believe that it is too late for appellant now to claim that Smith is not entitled to pay for his work because he was a subcontractor in violation of the contract. He was recognized and treated as having authority and the benefits of his services were accepted by the District and partially, at least, paid for by it.

The sixth point is that the Court erred in rendering judgment based on the jury finding that Smith had substantially completed the work under the Page contract on July 31, 1957.

This is the same question considered and determined by us in disposing of the first three points. Our ruling is the same.

The seventh point is that the Court erred in basing its judgment on the jury answer that only $14,990.00 was required to complete the work abandoned by Page and Smith. We have disposed of this point in appellant’s favor under the first three points.

The eighth and ninth points are that the Court erred in basing its judgment on the jury findings that the District failed to furnish adequate supervision and direction of the work and that its engineer made unreasonable demands and requests upon Smith in connection with the work under his subcontract.

The jury also found that these hindrances-did not financially harm Smith, and no judgment based on such findings was rendered in favor of Smith or against the District.

The tenth point is that the Court erred in basing its judgment on the jury finding of $31,859.04 as the actual field cost plus 15% for the extra work done by Smith, because there was no evidence or insufficient evidence to support it.

The jury also answered that Smith did not waive his right to receive additional compensation above the unit prices for extra work done at the request of appellant’s engineer. This finding is also attacked as lacking sufficient evidentiary support, and is the subject of point 11.

The contract between the District and Page provided that extra work done by the contractor at the request of the engineer for the District should be compensated for as determined by one of these methods :

“Method (A) - By agreed unit prices; or
Method (B) - By agreed lump sum; or
Method (C) - If neither Method (A) nor Method (B) be agreed upon before the Extra Work is commenced, then the CONTRACTOR shall be paid the ‘actual field cost’ of the work, plus fifteen (15%) per cent.”

The term “actual field cost” was defined by the contract and this definition was embodied in the charge of the Court as a part of this issue.

Appellant, in arguing these points states:

“The only evidence in the record which might concern the actual cost of doing what was possibly referred to as ‘extra work performed by Ward Smith for the Water District’ is to be found in the testimony of Mrs. Ward Smith and the testimony of R. Ward Smith, together with certain of R. Ward Smith’s exhibits. It appears from the testimony and the exhibits of R. Ward Smith that he pinned his claim for extra work to Defendant R. Ward Smith’s Exhibit No. 38, and the supporting testimony and evidence, showing a claim for extra work in the total amount of $53,098.39.
*****
“R. Ward Smith’s Exhibit No. 36 was supposed by his testimony to be the document supporting his claim for extra work aggregating $53,098.39, as shown by the Defendant Ward Smith’s Exhibit No. 38. There was much examination and cross-examination of R. Ward Smith with respect to these exhibits and as to his claim in connection therewith, which is found interspersed throughout all of his testimony in the record.
♦ * * * * ⅜
“Had the jury found the figure $53,-098.39 claimed by R. Ward Smith it might then be contended that the jury had accepted his total figures for the cost. However, since they took a figure only slightly more than half his claimed figure, it is obvious that the j ury did not accept his total figures for the cost of each of these projects. It is impossible to reconcile the figure found by the jury with any of the evidence given by R. Ward Smith, under which circumstances there was no evidence, or at least insufficient evidence to support the answer of the jury to Special Issue No. 15, that the cost of such work was $31,859.04.”

The testimony to which appellant refers as supporting the claim for extra work covers over 500 pages of the statement of facts and supporting and complex exhibits. We will not undertake a résumé of this testimony and these exhibits for the reason that appellant’s contention, as we understand it, is that there is no evidence or insufficient evidence to sustain the specific figure found by the jury. Appellant apparently concedes that there is evidence to have sustained a higher figure than the jury found. It is our opinion that if the jury erred in regard to this issue, that the error was to appellant’s advantage and is one which would not require reversal, at appellant’s request, under Rule 434, T.R.C.P.

The problem presented under this point must be considered along with the deferred determination under points four and five of appellant’s contention that Smith, under the jury finding, was not entitled to compensation based on “actual field cost” plus 15%, except as to “change order 3.” The relevant jury findings are:

“SPECIAL ISSUE NO. 14:
“Do you find from a preponderance of the evidence that R. Ward Smith agreed to perform all of the work required of said Smith by the Water District (except as contained in Change Order 3) and claimed by said Smith as extra work in his Exhibit No. 38, on the basis of the agreed unit prices as set out in the original contract between R. Ward Smith and Holland Page? Answer ‘yes’ or ‘no.’
“ANSWER: Yes.
“If you have answered the preceding Special Issue ‘no’, and only in that event, then you will answer the following Special Issue:
“SPECIAL ISSUE NO. 15:
“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence, to be the 'actual field cost’ plus fifteen (15%) per cent of the extra work performed by Ward Smith for the Water District? Answer in Dollars and Cents, if any.
“ANSWER: $31,859.04.
* * * * * *
“SPECIAL ISSUE NO. 16:
“Do you find from a preponderance of the evidence that the defendant R. Ward Smith waived his right to receive any additional compensation above the unit prices for the extra work and additions ordered by the District Engineer? Answer ‘yes’ or ‘no.’ If you find from the preponderance of the evidence that R. Ward Smith did so waive, you will answer ‘yes’; otherwise, you will answer ‘no.’
“ANSWER: No.”

The Trial Court in its judgment gave effect to issues 15 and 16, and disregarded issue 14.

The District objected to Special Issue 14 for numerous reasons, including the following :

“The Defendant Water District objects and excepts to Special Issue No. 14 for the reason that as framed such issue states an impossible theory, that is, it inquires of the jury whether Smith agreed to accept unit prices for any kind of extra work, when it is obvious from the record that any and all types of extra work could not be classified under unit prices.”

These objections are made the basis of appellant’s 25th point.

From our somewhat limited understanding of the facts and figures contained in this huge record, we agree with appellant, acquiesced in by Smith and not questioned by Page, that this issue improperly placed too heavy a burden upon the jury to entitle it to recognition by the Trial Judge in formulating his judgment. It follows that judgment was properly rendered upon the jury’s answer to issue 15 disregarding issue No. 14, since the submission of a proper issue respecting the method of compensation for extra work, as provided in the contract, assuming such issue to be raised by the evidence, was waived by failure to request its submission.

We do not comprehend the relevancy of issue 16 finding that Smith did not waive his right to be compensated for extra work by the field cost method. Unless an agreement was established to accept one of the other contractual methods for compensation for extra work, then the field cost method was the only proper method under the contract for payment for this work. We find no evidence that Smith surrendered this right in a manner sufficient to bind him.

Point 12 is that the Court erred in refusing to permit counsel for appellant to cross examine the witness, Mrs. Ward Smith, concerning records about which she had testified. We quote from appellant’s brief regarding this point:

“Upon establishing by the witness that these records were the ones which supported the books from which the witness had previously testified on direct examination, counsel suggested to the court that the cross-examination of the witness could not be continued under those circumstances. The court then said, T think you can. Let’s go ahead. You have copies there. Let’s move on.’ Upon counsel stating to the court that he had never seen the copies, the court then said, again commenting upon the evidence:
“ ‘Well, the evidence here shows that they were given to you. You can ask her some other questions. We are not going to stop right here. We have got twenty minutes left, so let’s use it, gentlemen. Let’s go on.’ ”

It is our opinion that the action and language of the Court merely reflects the manner in which the Court was properly conducting the trial and that it did not deprive or intimate that appellant was to be deprived of its right to cross examine the witness. It was counsel who expressed his inability to cross examine.

Point 13 is that the Court erred in not granting appellant’s motion for a mistrial based on the following occurrence, the description of which we take from its brief:

“Late in the afternoon of August 16, 1960, after the witness Mrs. Ward Smith had testified on direct examination, counsel for the Water District started to cross-examine Mrs. Smith, who had testified, over numerous objections by counsel for the Water District, concerning what the books of R. Ward Smith Construction Company showed with respect to certain categories of expenses. The witness had testified that she had the original records with her to support all the testimony she was giving with reference to the case, including invoices on materials, and costs, and checks.
“At one point in the proceedings counsel called to the court’s attention that certain previous obj ections were to go to all items on an exhibit and asked for the same ruling and exception on all items, to which the court promptly replied that the record would so show. Counsel for R. Ward Smith interjected that if R. Ward Smith’s theory was incorrect, there was nothing to the whole thing anyway, to which the court replied, ‘That’s right.’ Counsel for the Water District then stated that such was the reason for counsel’s objection, that counsel for R. Ward Smith should establish other matters first before he put all of the evidence as to costs before the jury, to which the court replied:
“ ‘Somebody should have established a whole lot more before we got to this point. Let’s go on.’ ”

The remark of the Court would have applied to one party as well as another. In fact, it seems to us to apply more to Smith and Page who had the burden of making out a case. In any event, we hold the error, if any, harmless under Rule 434, T.R.C.P.

Points 14 through 20, inclusive, briefed jointly, complain of the failure of the Court to submit a definition and special requested issues to the jury.

The definition requested was in connection with issue No. 2, finding the cost of completing the job, which finding we have held not to be of any effect.

The issues requested are:

“2. Do you find from a preponderance of the evidence that Col. Trimble did not promise extra pay for any work claimed as extra by Smith (except for the $5,000.00 item on the Scott line) ? ”
“8. Do you find from a preponderance of the evidence that defendant Smith, by accepting payments after Change Order Three without protest to the Board of Directors of the Water District, induced such Board of Directors to a change of position (By the words ‘change of position’ as used in the foregoing issue is meant any act or failure to act caused by reliance upon conduct of another, or silence of another, and which act, or failure to act, causes financial detriment.)”
“10. Do you find from a preponderance of the evidence that defendant Ward Smith failed to complain to the Board of Directors of the water district of his objections, if any he had, to the engineer on the job.
i “11. Do you find from a preponderance of the evidence that defendant Ward Smith failed to complain to the Board of Directors of the water district of his objections, if any he had, to changes in the lines.
“12. Do you find from a preponderance of the evidence that defendant Ward Smith failed to complain to the Board of Directors of the water district of his objections, if any he had, to installation of new lines.
“13. If you have answered Special Issues Nos. 9, 10, 11 and 12, or any one or more of them Yes; then answer the following Special Issue.
“Do you find from a preponderance of the evidence that by such failure, if any, you have found, defendant Smith waived his right to complain. By the word ‘waived’ is meant the voluntary relinquishment of a known right.’’

All of the requested issues except No. 2 apply to the claim of Smith for damages which claim was denied by the jury. Appellant has only an academic interest in these issues which is not sufficient to require an adjudication of the points concerning them.

We believe requested issue 2 was also properly refused. It was necessary that Smith agree to be paid a lump sum price or unit prices before he could be required to accept such method of compensation for extra work. If there was no agreement, the field cost method applied. This problem could not be re solved by a finding that a “promise” was or was not made to give Smith “extra pay” for extra work. The rights of Smith were contractual, not promissory.

The 21st point relates to the submission of the 1st special issue inquiring about substantial completion of the Page contract. We have previously discussed the substance of this point except that such issue was not supported by pleadings. In the Second Amended Original Petition of Page he pleaded that he had “* * * in good faith completed, or substantially completed, the work called for by the contract. * * * ”

The 22nd point is that the Court erred in submitting to the jury the issue inquiring about the reasonable cost of completing the contract.

We have disposed of this issue in favor of appellant under the first three points.

The 23rd point relates to the submission of an issue to the jury pertinent to the theory of rescission advanced by Smith. This theory was not carried into the judgment, and discussion of this point is not required.

The 24th point is that the Court erred in submitting to the jury issue 13 inquiring if the engineer for the District “waived” the provision in the contract that no claim for extra work would be allowed unless ordered in writing by the engineer, the jury’s answer being in the affirmative. The objections were that the issue was not supported by pleadings or evidence, and that "waived” was not defined; also that it was a comment on the weight of the evidence.

The undisputed evidence shows that the engineer for the District ordered most of the extra work verbally, and that the District accepted the benefit of this work. The Court defined “waiver”, but not “waived.” We believe that waiver was shown as a matter of law. This provision is highly technical, requiring little evidence to constitute a waiver of it. This holding makes the form of the issue immaterial. We have not searched the pleadings for an allegation of waiver but we believe the pleadings in which pay for extra work was sought are broad enough, absent exception, to embrace this issue.

The 25th point relates to issue 14 which inquired whether or not Smith agreed to do extra work for contract prices. We have heretofore discussed this issue and its non-effect. Appellant here states that the error in submitting this issue is immaterial. We agree.

The 26th point is that the Court erred in submitting the issue inquiring about the amount of “actual field cost” for extra work. We quote appellant’s summary of its objections to this issue:

“These objections were that there was neither evidence nor sufficient evidence nor pleading to support the submission of the issue, that it submits an erroneous measure of damages, that it assumes a contractual obligation by the District to pay Ward Smith actual field cost for extra work contrary to undisputed evidence that no such agreement was ever made; that it is a general charge; that the explanatory instruction contained many items of purported cost which have no support in the evidence and as to which there is no evidence at all; that the issue is a comment on the weight of the evidence since it assumes to indicate to the jury that a contractual relationship existed between Ward Smith and the Water District; whereas the evidence was undisputed that no such relationship existed; and that the issue is confusing and will cause the jury to bring in an improper verdict and pave the way for double recovery because not allowing the jury to deduct sums which have already been paid Ward Smith for extra work.”

The Court defined “actual field cost” in connection with this issue. We do not copy such definition, but it substantially and accurately corresponds with the definition of this term as contained in the Page contract. Obviously, this was a correct definition.

We have previously discussed the jury answer to this issue and found fault with some of the items constituting it. These will be noted in the judgment we render. The evidence to sustain the jury’s answer to this issue is referred to in our discussion of points 10 and 11 and will not be repeated here.

Appellant’s objections to the submission of this issue are overruled.

The 27th point is that the Court erred in submitting issue 16 to the jury inquiring if Smith waived his right to receive extra pay for extra work. The jury answered “No.”

We have heretofore stated that there is no evidence to support an affirmative answer to this issue. We do not believe the issue should have been submitted. If this is correct, then its form is immaterial. We do say, however, that the issue is not subject to the objection that it is a comment on the weight of the evidence.

The 28th point is in relation to jury issue 15, discussed above under point 26. The complaint here is that while the charge as submitted to the jury required an answer to this issue only if it answered preceding issue 14 “No,” and the jury having answered such issue “Yes,” did not answer issue 15 originally but the Court orally instructed the jury, before accepting its verdict, to disregard such instruction, return to the jury room and answer issue 15, and this the jury did.

Appellant cites Rules T.R.C.P. 271, 272, 274, 275, 286, 293 and 295, to establish error in the actions of the Court.

We believe that Rule 286, which provides that “After having retired, the jury may receive further instructions of the court touching any matter of law, either at their request or upon the court’s own motion”, authorized the Court to instruct the jury as he did. This rule required such instruction to be in writing, and it was error for the Court to instruct the jury orally. This error, we hold harmless under Rule 434, T.R.C.P.

The 29th through the 31st points are that the Court erred in overruling certain special exceptions.

The District excepted to the allegation by Page “that the Water District’s engineer arbitrarily refused to approve the work and issue a certificate of completion, upon the grounds that the allegation was inflamatory and prejudicial and that it did not plead sufficient facts by such general allegations to enable the Water District to prepare and defend the suit.”

This objection was properly overruled. Only proof of an arbitrary act could be prejudicial, not mere pleading. We believe the District knew, or should have known, the nature of an arbitrary act and with such understanding as to prepare its defense to the allegation made.

The District excepted to the pleading of Smith on the ground that certain of his allegations “were conclusions, were vague and indefinite, and did not allege sufficient facts to apprise” the District of the evidence which it might be required to meet.

We will not set out the pleadings excepted to for the reason that they pertain to hindrances pled by Smith in his plea for rescission. This feature of the case is not before us for review.

The district also excepted to the pleading of Smith “for the reason that said pleadings do not allege any facts showing any contractual relations between the Water District and R. Ward Smith and his partner, or either of them, and that for such reason no cause of action was asserted or could be asserted against the Water District.”

The relationship between the District and Smith has been dealt with fully in this opinion. It was not, in our opinion, necessary for Smith to allege that he had a contract with the District.

Having disposed of all points presented, we now approach the task of rendering judgment consistent with the legal conclusions reached herein. Before attempting this duty, we called upon counsel for their views assuming as correct the major rulings now made official by us.

Page and Smith and the District agree that as to Page the proper judgment, based on disallowance of liquidated damages, substitution of Bland completion cost for jury finding of cost of completion and allowance of jury finding for extra work, should be $3,917.18. This figure does not take into consideration the items, totaling $2,-308.19, which we have held improperly included in jury allowance for extra work. Thus calculated, the judgment for Page is reduced to $1,608.99.

Under the rulings we have made it appears that Smith has been overpaid for the work done by him and he is entitled to no judgment against the District. We do not adjust accounts between Page and Smith as no request for such relief is before us.

The judgment of the Trial Court is reformed and judgment is here rendered that appellee Page recover of and from the District $1,608.99; that appellee Smith take nothing by his suit; that as to Smith the District recover its costs in the Trial Court; that the cost of appeal be assessed one half against Page and one fourth each against Smith and the District. As thus reformed, the judgment of the Trial Court is affirmed.

Reformed and affirmed.

      . This matter is discussed under points 4 and 5.