author: FRASER, Chief Justice.

text:
    Huling E. USSERY et al., Appellants, v. Dewey HOLLEBEKE et ux., Appellees.
    No. 5705.
    Court of Civil Appeals of Texas. El Paso.
    May 12, 1965.
    Rehearing Denied June 9, 1965.

      Finley & Scogin, Kermit, for appellants.
    John F. Tomlin, Pecos, for appellees.
   FRASER, Chief Justice.

On January 3, 1944 the appellants conveyed nine sections of mineral classified land in Culberson County to appellees. In addition to the usual clauses of such deeds, this particular deed contained the following clause, covenant or agreement:

“It is understood and agreed by and between the grantors and the grantees herein that in the event said grantees or their heirs or assigns shall hereafter place any oil and gas or other mineral lease on said lands herein conveyed, or any part thereof, they will pay to said grantors, or their heirs or assigns one-half of all amounts that may be received by them from such source and to such extent this covenant shall run with said lands.”

The vendor’s lien was paid off and released on June 24, 1948.

Appellees executed an oil and gas lease and, in accordance with the agreement set forth above, forwarded one-half of the monies received to appellants. The first payment was made in April, 1949. Subsequently, two more oil and gas leases were executed with the same results, and this condition existed until July, 1959. In July of 1960 the appellees executed another oil and gas lease, but refused to pay any part of the monies received by them to the appellants, asserting that the above covenant was illegal and could not be enforced. Appellants filed this lawsuit in July, 1961, asking that the above set-forth agreement be enforced and appellees be required to pay appellants the sum of $12,768.50 as due in the covenant or as damages for breach of personal contract, or that the court cancel the aforementioned deed on the grounds that it was a mutual mistake between the parties. Appellants offered to adjust the so-called equities, if any, by paying a just and ascertainable sum of money back to ap-pellees so as to restore the parties to their original position. The trial court entered a “take-nothing” judgment against appellants, and from such action appellants hereby appeal.

Appellants set forth in their brief that the facts have either been reduced to stipulation or are undisputed.

It seems generally agreed that, under the Relinquishment Act, the owner of the surface of mineral classified lands becomes an agent of the State of Texas for the purpose of leasing such land for oil and gas. It has also been held that the surface owner of such property does not have the right to reserve or sell any of the minerals under the surface as, under such Act they belong to the State of Texas, with the surface owner acting as agent therefor. We think it has been clearly established that the provisions of the Relinquishment Act are now clear and in effect. Some cases have pointed out that the reason for such Act is that a contrary situation violates the legislative intent or policy, so as to make a future lease of such lands less attractive. Appellants maintain there is a distinction between the situation where a reservation is attempted, rather than an outright conveyance by the surface owner of some part of the minerals to another. It is our opinion and holding that both such situations come under the terms and provisions of the Relinquishment Act and the cases dealing with or construing said Act.

In their first four points, appellants maintain that the court erred in holding that the provision above set forth was invalid and that such was a material part of the deed, and the court erred in not, therefore, holding the entire deed invalid. We do not believe that appellants have produced sufficient evidence to indicate that the deed itself, with the exception of the covenant, was against either the public policy or the Relinquishment Act of the State, nor have they been able to prove the particular covenant legal and enforcible. State v. Magnolia Petroleum Co., Tex.Civ.App., 173 S.W.2d 186 (err. ref., w. m.) ; Lewis v. Oates, 145 Tex. 77, 195 S.W.2d 123. We do not believe that the illegality or invalidity of the provision or covenant above set forth requires the court to set aside the entire deed and transfer of property. If the covenant were legal, there is no allegation of bad faith on the part of anyone in this matter, nor any allegation of fraud; and in the absence of these elements, we do not believe cancellation and/or rescission of the executed conveyance should be granted for failure of the grantees to perform some act in the future, even assuming such acts to be legal. We believe, and so hold, that the provision in question here was a mere covenant or promise that was illegal from its inception, but does not, as such, vitiate the entire deed. It is apparent from the record that both .parties knew about the Relinquishment Act and willingly agreed to this particular provision or covenant. The subsequent discovery that this one provision of the deed was illegal would not, in our opinion, constitute grounds to cause the entire deal, or deed, to be declared invalid and entitled to cancellation. It was not the main or entire consideration of the deed, and the record reflects — and it is so stated in appellants’ brief — that this was the usual form of deed used in conveying real property. Therefore, the only taint was the attempt on the part of the grantors to reserve something which they had no right to reserve. With reference to the first four points of appellants, we therefore hold that this provision was contrary to the Relinquishment Act of the State of Texas, against the public policy of the State, and therefore invalid. Further, that the invalidity of this one provision does not destroy the main transaction, which was the conveyance of the surface of the nine sections of ranch land. Appellants’ first four points are therefore overruled.

Appellants’ Points 5, 6, and 7 allege error in that the trial court should have allowed them the sum of $12,768.50. This sum represents mineral revenue from the lands herein concerned, and we have already held that the provision under which this money was requested by appellants is invalid, and appellees are therefore not obliged to share their mineral revenues from these nine sections of land. We cannot agree with appellants that the provision with which we are dealing was a personal contract between the parties and, as such, enforcible. To so hold would permit evasion of the provisions of the Relinquishment Act and, secondly, this provision is contained within the deed or conveyance, and there is no evidence that it is any separate personal contract. The amount set forth above represents mineral revenue accruing after 1959 and as a result of new oil and gas leases. The sum demanded by appellants is one-half of the amount received by appellees. Because this provision is, in our opinion, illegal, there can be no en-forcible demand emanating therefrom for either its payment or specific performance. Pomeroy on Equity, page 940; Blaine v. Blaine, Tex.Civ.App., 207 S.W.2d 989; Morgan Ice Co. v. Barfield, Tex.Civ.App., 190 S.W.2d 847. The court stated in the Blaine case, supra: “‘As between the parties to such a contract, who are in equal fault, no right exists which a court of justice will enforce.’ ” The record in the case before us does not, in our opinion, reflect any mistake in fact — only a mutual misunderstanding or mistake of the law. These points are therefore overruled.

Appellants’ Points 8 through 14 claim that the trial court committed error in refusing to order rescission or cancellation of the deed. In discussing these points it must be borne in mind that the parties knew about the Relinquishment Act, and that this was mineral classified land; also, that the trial court found that the attorney who drew up the deed in question advised both parties that he knew of no way that the vendors could reserve a half interest in the minerals. In addition, the appellant who was making the deal testified that he was not misled and that there was no fraud involved; that it was merely a mistake. It has been held that in an executed conveyance such as we have here, the remedy for mere breach of covenant, unaccompanied by equitable grounds for rescission, is one at law for damages, rather than equitable rescission. Other cases have held, as we have pointed out earlier, that rescission and cancellation will not be decreed because of the failure of the grantee to perform some act in the future. Also, that a mutual mistake of law is not grounds for rescission or cancellation of a deed or contract. The record here, including the exhibits, shows that there was no withholding of material facts by either party, and no fraud; nor is there any evidence of planned breach or fraud in the future. On the contrary, appellants received considerable money under this provision until such was stopped in 19S9. The correspondence between the appellant who was making the deal and the attorney exhibits complete faith and confidence in the attorney’s ability and integrity in representing both parties. Therefore, we must hold that there was no mutual mistake of fact, or any mistake of fact, nor was there any evidence of present or planned fraudulent behavior on the part of either of the contracting parties. One Federal court, in the case of Boren v. Burgess, D.C., 97 F.Supp. 1019, goes so far as to say:

“A mutual mistake of law is not grounds for rescission or cancellation of a deed or contract. The probate attorney stated that an owner of an interest in the 140 acre tract in Section 26 was entitled to participate in the royalty from the producing tract in the proportion his interest bore to the whole 180 acre tract. As will be discussed below, this is an erroneous legal conclusion. The facts, however, upon which he based his remarks are a matter of record and the purchaser of land at a judicial sale is bound by the record under which he purchases; as a result, plaintiff cannot predicate an action for rescission of the deed on the misrepresentation as to the applicable law by the probate attorney.”

The similarity of that case and this case is readily apparent, because here the attorney for the parties advised both parties of the restrictions of the Relinquishment Act, but suggested that the covenant with which we are here concerned might be the legal answer to the parties’ problem. Chicago, T. & M. C. Ry. Co. v. Titterington, 82 Tex. 218, 19 S.W. 472; Hearne v. Bradshaw, 158 Tex. 453, 312 S.W.2d 948; Hill et al. v. Provine et al., Tex.Civ.App., 260 S.W. 681; Clampitt v. Ponder, D.C., 91 F.Supp. 553. Again it will be noticed, in the Federal cases cited above, that it is held that mere mistake of a party as to the legal effect of an instrument does not vitiate the instrument or afford ground for reformation. Crews et al. v. Crews, 212 Ark. 734, 207 S.W.2d 606. Appellants’ Points 8 through 14 are therefore overruled.

Appellants’ Points 15 through 23, and 27 through 29, allege error in that the trial court was not justified in holding that there was no mutual mistake, and that if there was, it was one of law instead of fact. We shall try to deal with these points as a group. First of all, it is stated in the appellants’ brief that the acts of the appellants, for all practicable purposes, are those of Huling E. Ussery, Sr., even though the parties are referred to as “appellants” herein.- Therefore it is important to note that in the record, there is a letter from Mr. Huling Ussery, dated April 11, 1943, in which he states that he is aware that the property involved is mineral classified, and such letter indicates his own familiarity with the legal status of the property. There is also a letter from Ussery to the appellees in which letter he states that he felt that Judge Drane, attorney for the ap-pellees, could draw up an agreement that would not only he satisfactory, but, as he said, would be much better than one he could have drawn up at his place of residence, which was at that time in Reno, Nevada. These exhibits and the record itself show that there was no concealment of any vital fact by either party and no mutual mistake of fact, the mistake being one of law based on the advice of an attorney who was satisfactory to both parties. The appellants themselves agree that Judge Drane, the original attorney for appellees, acted in utmost good faith and was a gentleman of complete integrity. So we have before us a controversy wherein the appellants were fully informed of the necessary facts pertaining to their negotiations and agreement, but were mistaken as to the legal meaning and effect thereof. It has been held that a mistake of law, not induced by fraud or misconduct of the other party, cannot be the ground for equitable relief. Nor do we have here the presence in this record of any evidence that one party had superior knowledge as to the law. The record shows that there was no mistake in the language of the provision in the deed; that Ussery himself testified that this provision was inserted in order to secure to him and his heirs and assigns one-half of any future mineral revenue that might be paid to grantees. The mistake here is that all parties thought this was a legal provision, and they erroneously concluded that the provision was legal and would accomplish the purpose that Mr. Ussery testified to. We have already discussed the fact that such provision is illegal and against the public policy of the State; so here, to repeat, it was a mutual misunderstanding of the law and the legal effects of the provision concerned. Pollard v. Steffens (S.Ct.), 161 Tex. 594, 343 S.W.2d 234; Boren v. Burgess (supra); Clampitt v. Ponder (supra). These points are accordingly overruled.

Appellees maintain, in their fifth point, that the trial court did not err in refusing to hold that the appellees were estopped to deny the validity and enforcibility of the attempted reservation of minerals in the deed. Estoppel cannot be predicated upon performance or non-performance of an illegal covenant. To hold otherwise would be to say that an illegal covenant — and here, one that is against public policy — could be legalized by estopping one party from declaring and resting upon its illegality. Lewis v. Oates (supra); 22 Tex.Jur.2d 679, Estoppel, § 14.

Appellants claim in Points 24, 25 and 26 that appellees led appellants into believing that appellees could carry out the provision of the covenant. In our opinion the record does not sustain this assertion, as evidenced by the testimony and correspondence in the record.

In a very early case, the Fourth Court of Civil Appeals certified to the Texas Supreme Court the question of whether it was contrary to public policy in Texas for a public officer to give a lien upon his unearned official compensation. This opinion by the Supreme Court is dated December 21, 1893, in the case of State National Bank of El Paso v. Fink, 86 Tex. 303, 24 S.W. 256. In 1894 the Court of Civil Appeals held that, inasmuch as the Supreme Court had certified the assignment of salary by a public officer to be against public policy, such contract, being void because it was against public policy, was not capable of being made good by ratification so long as the grounds on which the inhibition rests existed. State National Bank v. Fink, 24 S.W. 937. Points 24, 25 and 26 are accordingly overruled.

In Point 30, appellants complain of the action of the trial court in refusing to permit rescission and cancellation of the deed upon payment or tender of the consideration originally paid. Although we have discussed this matter, we think it should be again mentioned that the record shows, through the testimony of Mr. Ussery himself, that the attorney, Judge Drane, had written him saying he knew of no way he could reserve a mineral interest; further, that Judge Drane then suggested the covenant in question. Ussery and his wife signed the deed, and he himself testified that he knew the facts concerning the mineral classification of the land and the agency plan provided in the Relinquishment Act, and that he knew what he wanted to accomplish by the aforesaid reservation. Mr. Ussery also testified that the appellees did not practice any fraud on him and that ap-pellees had no knowledge superior to his of the mineral classification and rights of surface owners in mineral classified lands. There is no provision in the deed for forfeiture or re-entry for breach of covenant. The deed was fully executed and the vendor’s lien paid off. It is obvious that the covenant here could not be treated as a condition subsequent, because the necessary language is lacking. This covenant appears to be one, if enforcible, that would give appellants only an action for damages, rather than cancellation or rescission. Chicago, T. & M. C. Ry. Co. v. Titterington (supra) ; Rosek v. Kotzur et ux., Tex.Civ.App., 267 S.W.759. It is stated, in 13 Tex. Jur.2d 414, § 202, that parties to an illegal contract cannot recover from each other anything that was done or promised in carrying out the agreement, nor can the illegal contract be ratified or enforcement compelled. Appellants’ Point 30 is therefore overruled.

Appellants’ Points 31 through 36 allege that the trial court committed error in holding that their action to cancel the deed was barred by the four-year statute of limitations. The deed was dated January 3, 1944 and the first payment received by appellees from mineral leasing of the land was April 11, 1949, which was approximately five years and three months after the date of the deed. We do not believe that the trial court committed error in his holding, nor do we believe that the appellees deprived themselves of the defense of limitation by partial performance in that they did pay some sums of money to appellants. There is nothing in the record to suggest that appellees did anything to mislead the appellants or lull them into a sense of security. We do not believe that partial performance, to-wit, the payment of monies, was anything more than a mistake on the part of both parties. In any event, no monies were paid by appellees until more than four years had elapsed since execution of the deed (in reality, about five years and three months). It has been held that ignorance of the law is no excuse, so it is difficult to say how appellants could have been harmed. In any event, misrepresentation as to a matter of law is generally considered merely an expression of opinion and will not ordinarily support an action of fraud and deceit. This deed having been in existence more than four years after its execution, we think, precludes cancellation under the conditions here present, and the record does not divulge any facts or information that prevent the appellees from asserting their defense of limitation. It has been said that the grantor is charged, as a matter of law, with knowledge of the contents of his deed from the date of its execution, and limitation begins to run against his action to correct it from that date. Dean et al. v. A. G. McAdams Lumber Co., Tex.Civ.App., 172 S.W. 762; Kahanek v. Kahanek, Tex.Civ.App., 192 S.W.2d 174. Points 31 through 36 are accordingly overruled.

Points 37, 38 and 39 again deal with the matter of estoppel and charge the trial court with error in holding that no estoppel arose because appellants had partially performed some of the provisions of the illegal covenant. We think this matter has been covered, and these points are therefore overruled.

In summation, it is our holding that the attempted reservation by appellants was void and unenforcible, and therefore any recovery under such covenant would also be void and unenforcible; that appellants’ plea for cancellation of the deed cannot be granted because we have here only a breach of covenant, as set forth above, and not a condition subsequent; that the mistake or misunderstanding, if any there be, between the parties was one of law and not of fact, and no one was deceived, defrauded or in possession of knowledge superior to the other party; and lastly, appellants’ effort to cancel the deed is effectively barred by the statute of limitations.

All of appellants’ points of error are therefore overruled, and the decision of the trial court is affirmed.


source: Caselaw Access Project

author: GREEN, Chief Justice.

license: Public Domain

text:
    STATE of Texas ex rel. Sidney P. CHANDLER, Appellant, v. Neal DANCER et al., Appellees.
    No. 117.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 27, 1965.
    Rehearing Denied June 17, 1965.

      Sidney P. Chandler, Corpus Christi, for appellant.
    Roger Butler, Corpus Christi and Robs-town, for appellees.
   GREEN, Chief Justice.

This is a disbarment proceeding filed in the 28th District Court of Nueces County, Texas, by appellant Sidney P. Chandler, a practicing attorney at law and member of the State Bar of Texas, against appellees, residents of Nueces County, both of whom are also attorneys at law and members of the State Bar. Pleas to- the jurisdiction were sustained, and the petition as to both appellees was ordered dismissed by the trial court. This appeal is from such order.

As we view the record, the issue we are called upon to decide narrows down to this: Does an individual attorney at law, acting independently of the State Bar and of any District Grievance Committee of the State Bar, have legal authority to institute civil proceedings in a state district court seeking disbarment or suspension of license of another attorney at law?

Our answer is that he does not, and we affirm the judgment of the district court.

Appellant contends that he, as a practicing attorney, was authorized to institute this proceeding by virtue of Art. 314, Vernon’s Ann.Tex.Civ.St., which reads:

“The judge of any court, a practicing attorney, a county commissioner or justice of the peace may file with the clerk of the district court a sworn complaint of fraudulent or dishonorable conduct or malpractice on the part of any attorney at law.”

Articles 315 and 316, V.A.T.S. provide for the procedure to be had in court upon the filing of such sworn complaint.

We hold that Articles 314, 315 and 316 were repealed by the passage, in 1939, of the State Bar Act, being Art. 320a-l, V.A.T.S., and the Rules Governing the State Bar of Texas, adopted by Members of the State Bar of Texas, and Promulgated by The Supreme Court of Texas, Vernon’s Ann.Civ.St. following article 320a-l. A statement of these Rules, with amendments, is contained in Volume 1A, Vernon’s Texas Civil Statutes Annotated, page 203, et seq. Section 8 of the State Bar Act (Acts 1939, p. 64) reads as follows:

“All laws or parts of laws in conflict with this Act or with the rules and regulations adopted under this Act by the Supreme Court are hereby repealed.”

The purposes sought to be accomplished by the State Bar Act and the State Bar Rules are set forth in a review of the statutes enacted by the Legislature for the regulation of the practice of law in Hexter Title & Abstract Co. Inc. v. Grievance Committee, Fifth Congressional Dist., State Bar of Texas, 1944, 142 Tex. 946, 179 S.W.2d 946, 157 A.L.R. 268, State v. O’-Dowd, 158 Tex. 348, 312 S.W.2d 217, and in Arnett v. State, Tex.Civ.App.1957, 304 S.W.2d 386, writ ref. n. r. e. In Hexter, supra, the Supreme Court, through Chief Justice Alexander, said:

“In 1933 the Legislature enacted Penal Code, Article 430a, Vernon’s Ann.P.C., Acts 1933, p. 835, which carefully defined what constituted the practice of law and designated who were prohibited from so practicing. In 1939 the Legislature went one step further and enacted the State Bar Act, Vernon’s Ann.Civ.Stat. Art. 320a — 1, Act 1939, 46th Leg., p. 64, which had for its purpose the further regulation of the practice of law. That act created the organization known as the State Bar, composed of the registered licensed attorneys of the State, and constituted it an administrative agency of the judicial department. The same act empowered the Supreme Court, with the approval of a majority of the registered licensed lawyers, to prescribe rules and regulations ‘for disciplining, suspending, and disbarring attorneys at law; for the conduct of the State Bar; and prescribing a code of ethics governing the professional conduct of attorneys at law.’ The act prohibited those not members of the State Bar from practicing law, and empowered the agency there created to carry out the purposes of the act. The primary purpose of the Legislature in the enactment of the above legislation was to protect the public by eliminating from the law profession those morally unfit to enjoy the privileges and those lacking in proper training and other qualifications necessary to perform the services required of an attorney. * * * It is apparent, therefore, that those who are to be entrusted with the opportunities of such a position should be possessed of a high degree of integrity. In recognition of this the Legislature has set up machinery for the establishment of canons of ethics for the profession, and the disbarment of those guilty of fraudulent or dishonorable practice or malpractice. Again, it would be useless to establish high standards of morality for members of the profession if those who are not members, and therefore not bound by such canons, could practice the arts of the profession. The State has a vital interest in the regulation of the practice of law for the benefit and protection of the people as a whole, and the legislation above referred to was adopted in furtherance of a wholesome public policy.”

The machinery mentioned by Chief Justice Alexander as being set up “for * * * the disbarment of those guilty of fraudulent or dishonorable practice or malpractice” (it will be noticed that the Supreme Court did not say additional machinery) was authorized by the Legislature in Sec. 4, Subd. (a), art. 320a-l, State Bar Act, which reads in part as follows:

“From time to time as to the Court may seem proper, the Supreme Court of Texas shall prepare and propose rules and regulations for disciplining, suspending, and disbarring attorneys at law; for the operation, maintenance and conduct of the State Bar; and prescribing a code of ethics governing the professional conduct of attorneys at law.”

The remainder of this subdivision details the manner in which such rules and regulations shall be submitted to the State Bar members for voting thereon.

Under the authority of the above statute, the State Bar Rules were prepared by the Supreme Court, submitted to and approved by the members of the State Bar, and duly promulgated. These rules are at the least quasi-statutory, and have the same force and legal effect upon matters to which they relate as the Texas Rules of Civil Procedure have to matters to which they relate. Rattikin Title Co. v. Grievance Committee of the State Bar of Texas, Tex.Civ.App., 272 S.W.2d 948; Cochran v. Cochran, Tex.Civ.App., 333 S.W.2d 635, writ ref. n. r. e.

Art. XII of the Rules is entitled “Discipline of Members; Unauthorized Practice of Law.” Sections 1 through 33, covering nine pages of Vol. 1A, V.A.T.S., pp. 221-230 inch, deal with the subject of misconduct of State Bar members, and discipline, including suspension and disbarment of members. A grievance committee for each congressional district of the State is provided, with all details for the appointment, tenure, and duties of such committee fully set forth. Professional misconduct is defined. These rules place the handling of complaints against attorneys at law, both before the Grievance Committee and in the courts, in the hands of the Grievance Committee of the district in which the attorney resides. Sections 11-20 inclusive, deal with the filing of complaints with the committee, investigation by the committee, hearing before the committee with the right to require attendance of witnesses, and the action which may be taken by the committee on the complaint in cases where no court trial is required. Section 12 provides that the proceedings before the committee be kept private, thus indicating a desire to protect an unjustly accused lawyer from suffering damage to his reputation.

Sections 21-31, inclusive, under the title heading— C. Procedure by Formal Complaint — deal with the procedure when formal complaint seeking reprimand, suspension, or disbarment of an attorney for professional misconduct as defined in Secs. 8 and 9 of Art. XII, is filed by the committee in the district court. Reference is here made to the State Bar Rules for further reading thereof. The right of trial by jury in the home county of the accused lawyer is protected.

The rules governing reinstatement of disbarred attorneys, Art. XII, Secs. 32 and 33, provide that the District Grievance Committee be notified of any petition filed in district court by a disbarred lawyer for reinstatement, and states that such committee may contest the application, and that either party, petitioner or the Grievance Committee, has the right of appeal. Effective participation of a District Grievance Committee in such hearing requires that it be familiar with the facts of the situation. All of this indicates that the District Grievance Committee is considered an integral part of disciplinary procedures.

In St. Louis S. W. Ry. Co. v. Kay et al., 85 Tex. 558, 22 S.W. 665, the Supreme Court said that:

“The question of repeal, like every other question arising upon the construction of a statute, must be solved by determining as near as may be the intent of the legislature.”

Notwithstanding the question as to the existence of an inconsistency between the State Bar Act and Art. 314, we feel that the repeal of Art. 314 has been effected. There is a long line of cases holding that a statute intended to prescribe the only rules governing a particular area of law repeals prior statutes which prescribed other rules in that same area of law, even though there is no repugnancy. Bryan v. Sundberg, Tex.Sup.Ct, 1849, 5 Tex. 418; Rogers v. Watrous, Tex.Sup.Ct., 1852, 8 Tex. 62; Tunstall v. Wormley, Tex.Sup.Ct., 1881, 54 Tex. 476; St. Louis S. W. Ry. Co. v. Kay, supra; Motor Inv. Co. v. City of Hamlin, 1944, 142 Tex. 486, 179 S.W.2d 278; Bank of Atlanta v. Fretz, 1950, 148 Tex. 551, 226 S.W.2d 843; First Nat. Bank v. Lee County Cotton Oil Co., Tex.Com.App.1925, 274 S.W. 127; State v. Houston Oil Co. of Texas, Tex.Civ.App.1917, 194 S.W. 422, writ ref.; Meek v. Wheeler County, Tex.Civ.App.1939, 125 S.W.2d 331, aff’d. 135 Tex. 454, 144 S.W.2d 885; Commercial Credit Co. v. American Mfg. Co., Tex.Civ.App.1941, 155 S.W.2d 834, writ ref.

In Bryan v. Sundberg, 1849, supra, the Texas Supreme Court said:

“When the new statute in itself comprehends the entire subject and creates a new, entire and independent system respecting that subject matter, it is universally held to repeal and supersede all previous systems and laws respecting the same subject matter.”

Ninety-five years later, in Motor Inv. Co. v. City of Hamlin, supra, the Supreme Court in holding certain statutes repealed by enactment of subsequent legislation pertaining to the same subject matter, quoted with approval the following:

“In 39 Texas Jurisprudence 148, the rule of statutory construction is thus stated:
“ Where it is apparent that a statute is inténded to embrace all the law upon the subject with which it deals, it repeals all former laws relating to the same subject. Under this rule, a statute that covers the subject matter of a former law and is evidently intended as a substitute for it, although containing no express words to that effect, operates as a repeal of the former law to the extent that its provisions are revised and its field freshly covered. Accordingly, parts of the original Act that are omitted from the new legislation are to be considered as annulled. If the later act is clearly intended to prescribe the only rules which should govern, it repeals the prior statute, although the two are not repugnant in their provisions’.”

In Gordon v. Lake, Secretary of State, (1962), 163 Tex. 392, 356 S.W.2d 138, the Supreme Court said:

“A statute may be repealed expressly or by implication. Where a later enactment is intended to embrace all the law upon the subject with which it deals, it repeals all former laws relating to the same subject. See Motor Inv. Co. v. City of Hamlin, 142 Tex. 486, 179 S.W.2d 278. Repeals by implication are not favored, however, and laws relating to the same subject should be considered as though incorporated in the same act. If they can be harmonized and effect given to each when so considered, there is no repeal by implication. See Conley v. Daughters of the Republic, 106 Tex. 80, 156 S.W. 197, 157 S.W. 937.”

The Court held that the Texas Business Act of 1955 expressly excepted from its provisions certain types of corporations, and hence did not embrace all of the law on the subject of corporations and their creation. Since the prior legislation claimed by relator to have been repealed by such Act related to the organization of excepted corporations, the court said that such statute was in no way inconsistent with the Business Corporation Act, and was not repealed by implication.

No such exceptions exist, either in the State Bar Act or in Art. XII, Sections 1-33 inclusive, State Bar Rules, dealing with Discipline of Members. If we consider Arts. 314, 315, and 316, V.A.T.S. as though incorporated, either in the State Bar Act or the State Bar Rules, we fail to see any way in which “they can be harmonized and effect given to each when so considered”, when the evident purpose and intent of the Legislature and of the Supreme Court in enacting this legislation and these Rules are taken into consideration.

It is clear that the State Bar Act was intended to result in a new and comprehensive system regulating the practice of law in Texas. As stated in Tunstall v. Wormly, supra:

“The old law was imperfect and very general in its terms. The law of 1874 is full and ample. It seems very clearly to have been designed to embrace and regulate the organization, powers and privileges of private corporations of all sorts.”

The old law relating to the disciplining of attorneys “was imperfect and very general in its terms” and the State Bar Act and the State Bar Rules promulgated under it are full and ample. The intent and purpose of the legislature to provide for a full and comprehensive set of laws to cover completely the practice of law and regulation and disciplining of lawyers is demonstrated, not only in the body of the law and the general provision of repeal of conflicting statutes, but in the emergency clause which reads:

“The fact that there is no law creating a State Bar and the further fact that there is a growing demand upon the part of the public and the lawyers of this State that the Supreme Court be empowered to adopt and promulgate rules and regulations governing the legal profession and the professional conduct of attorneys create an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days be suspended, and said Rule is suspended, and this Act shall take effect and be in force from and after its passage, and it is so enacted.”

The provisions of Art. XII of the State Bar Rules leave no room for any statutes providing for disbarment proceedings brought in a district court by an individual lawyer independently of a Grievance Committee of the State Bar.

It appears clear to us that many inconsistencies and contradictions would exist in the law applicable to disciplining lawyers for professional misconduct if it should be held that Arts. 314, 315, and 316 are still in effect. Under such articles, no prior investigation of the complaint against the attorney at law was required by any official body before taking the matter into district court. The State Bar Rules provide that court proceedings against a lawyer accused of official misconduct as defined by Art. XII, Secs. 8 and 9, shall be instituted only after a thorough private investigation and hearing of the complaint has been had by a legally constituted official body, the District Grievance Committee, and such Committee has determined that disciplinary action is warranted. Art. XII, Sec. 16. Even then, if the Committee finds proper, and the accused lawyer consents in writing, milder action may be taken without the necessity of filing a Formal Complaint in court.

The term “Formal Complaint” is defined as the pleading by which a disciplinary action is instituted in District Court by a Grievance Committee. Art. XII, Sec. 7. The requisites of a Formal Complaint are set out in Sec. 24. Sec. 21 provides that the Texas Rules of Civil Procedure shall govern in all proceedings under Formal Complaint except where in conflict with specific provisions of the Bar Rules. Then follow a number of specific rules which are in conflict with provisions of the Rules of Civil Procedure, and which are applicable only to procedure in district court under Formal Complaint. Hence, it appears that these specific provisions would not apply to trial under the statutes, Art. 314 et seq. Thus, if these articles are still law, we have a situation where the legal rights of the parties in a disbarment proceeding in Court would differ, depending on the identity of the plaintiff, whether as specified in Art. 314 and Art. 316, or the District Grievance Committee. We particularly call attention to the specific provisions as to procedure under the Bar Rules with reference to limitation of actions (Sec. 10), see State v. Estes, Tex.Com.App. (1937), 130 Tex. 425, 109 S.W.2d 167; pleadings (Secs. 24-25), perferred setting (Sec. 27), form of judgment (Sec. 28), costs (Sec. 29) see Houtchens v. State, Tex.Com.App. (1934), 74 S.W.2d 976; and supersedeas on appeal (Sec. 30), see Houtchens v. Mercer, Tex.Com.App. (1930), 119 Tex. 431, 29 S.W.2d 1031, 69 A.L.R. 1103.

As heretofore stated, Sec. 8 of the State Bar Act expressly repealed all laws or parts of laws which were in conflict with the Act or with the rules and regulations adopted under the act by the Supreme Court. See State ex rel. Grievance Committee of State Bar of Texas for Dist. No. 15-B v. Garza, Tex.Civ.App., 1954, 269 S.W.2d 596, where the venue provisions of Art. 311 were held to have been repealed because of a conflict with Secs. 5 and 6 of the State Bar Act. It is our opinion that Arts. 314, 315 and 316 are in conflict with Art. XII of the State Bar Rules.

For the reasons heretofore stated, (1) that the State Bar Act together with the State Bar Rules provided for a full and comprehensive set of laws to cover the regulation and discipline of lawyers, and (2) that conflict exists between Arts. 314, 315 and 316, and the State Bar Act and the State Bar Rules, it is our holding that Arts. 314, 315, and 316 have been repealed.

The State Supreme Court and the Courts of Civil Appeals have had many occasions, since the creation of the State Bar, to pass upon appealed cases filed in the trial court under the State Bar Rules by District Grievance Committees. In all of these cases, the courts have recognized the State Bar Act and the State Bar Rules as constitutional and valid, and have further treated the Grievance Committees as legally constituted official organizations, with lawful authority to perform the functions and duties as set forth in the State Bar Rules. Hence, we have no doubt hut that the validity and constitutionality of the various sections of Art. XII of the State Bar Rules is a closed issue in this State in favor of their validity and constitutionality. Hexter Title & Abstract Co. Inc. v. Grievance Committee, Fifth Congressional Dist., State Bar of Texas, Tex.Sup.Ct., supra; State v. O’Dowd, Tex.Sup.Ct., supra; Arnett v. State, Tex.Civ.App., supra. Appellant’s points raising such questions are overruled.

The trial court did not err in sustaining the pleas to the jurisdiction of the court, and in dismissing appellant’s petition.

The judgment of the trial court is affirmed.

      . Repealed Acts 1949, 51st Leg. p. 548, cli. 301, § 1.


author: NYE, Justice.

text:
    Johnny W. BALLARD, Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Appellee.
    No. 72.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 27, 1965.
    Rehearing Denied June 17, 1965.

      Perry Gathright, John H. Holloway, Houston, for appellant.
    L. S. Carsey, of Fullbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
   NYE, Justice.

This is a workmen’s compensation case. Appellant brought this suit under the Workmen’s Compensation Act seeking an award for total and permanent disability by reason of an alleged accidental injury while working for Pritchett Machine & Welding, Inc. The trial court submitted the case to a jury which found that the appellant had not been injured. Based upon the jury verdict the court rendered judgment that appellant take nothing and appellant perfected his appeal.

Appellant’s first three points relate to no evidence, insufficient evidence and the great weight and preponderance of the evidence concerning the alleged injury. The appellant worked as a maintenance man in a machine and welding shop. He had worked for the company approximately three months prior to his alleged injury. The appellant contended that he fell in a hole that was dug in the shop floor, injuring his back and neck. He continued to work two and a half weeks. Appellant testified that he notified his employer, visited a doctor and was admitted to a hospital in Galveston where he was treated for some seven weeks. He testified he was unable to work for over a year after leaving the hospital, and was not working at the time of the trial, some two years after the alleged injury. Appellant complained of severe pain in his lower back. His treating doctor, based partly on what appellant had told him, diagnosed the complaint as a ruptured disc or intervertebral disc syndrome and was of the opinion that the injury complained of by the appellant had caused it, and that he was in need of surgical operation in the disc space known as the fifth lumbar interspace. Appellant was examined just prior to the trial by a neurosurgeon who confirmed the possibility of a disc injury based on objective findings and x-ray, but stated that the latter was not conclusive. On cross-examination he testified that it is sometimes difficult to tell what was the initial producing cause of back pain.

Appellant admitted that he had received several prior back injuries, one in 1940 fors which he received medical treatment; a back injury in the latter part of 1940’s or early part of 1950 when he was hospitalized for eight or nine days; and a back injury while working for Brown & Root in 1958 which he testified was not very severe and that he got over it in two or three weeks and that it completely cleared up within two or three months. On cross-examination, the appellant was impeached with a written statement signed by him six and a half months after the 1958 injury in which he stated that his back had hurt since the injury and that he had not been able to work and it hurt so bad he could not sleep nights and nothing seemed to ease it. Appellant was impeached on a number of occasions, particularly as to other injuries that he had sustained. Appellant testified that he reported his present injury to the foreman and that he had told three other men about falling in the hole and having hurt himself. Appellee called the foreman and the three named employees that the appellant claimed knew of his injury. Each witness denied ever having been told by appellant that he had fallen in the hole or injured himself or needed medical treatment. A letter was introduced which was written by appellant addressed to a former employee of Pritchett Machine & Welding, Inc., complaining of a “nasty report” that this employee had made in regard to appellant. Appellant stated in the letter, that if this witness did not change his statement, appellant would tell the employer and insurance company that the witness had a heart condition and had to carry pills in his billfold for heart condition. There were many other discrepancies in appellant’s testimony throughout the trial. For instance, appellant’s version of the accident was as follows: He went over to the new machine that was running to turn it off. While backing away from the machine he fell into the hole causing his injuries. This was refuted by appellee’s witnesses who testified positively that appellant’s version of the accident could not have happened as stated. First of all, the machine in question could not have been running because it had not been installed. The hole was dug for the purpose of installing the machine over the hole to permit a vertical ram to travel up and down while the machine was running. Until the machine had been installed over the hole it could not run, nor could it have been turned off as testified by appellant. There were no witnesses who testified that they saw the appellant fall.

Appellant’s points nine and ten relate to his first three points in that appellant claims that when the appellee introduced in evidence “Notice of Injury and Claim for Compensation” filed by appellant with the Industrial Accident Board, that the state-merits contained therein were judicial admissions binding upon the appellee, which the jury and court could not ignore. The instrument showed on its face a statement by the appellant: “I fell in a hole in the shop floor injuring my neck and back.” Appellant contends, therefore, that there is no evidence of probative force establishing that the appellant was not injured or, stating it another way, appellee introduced evidence which shows as a matter of law that appellant was injured.

It is a well-established general rule of law that “if a party introduces a statement of his adversary in evidence, he is ordinarily bound by it. For example, a party who introduces without limitation a pleading of his adversary will generally be bound thereby.” 24 Tex.Jur.2d 382, 383, Evidence, § 718. Seddon v. Harrison, Tex.Civ.App., 367 S.W.2d 888, writ ref., n. r. e., and cases cited; Parkerson v. American Hospital & Life Ins. Co., Tex.Civ.App., 322 S.W.2d 27, dis., w. o. j.; Lock v. Morris, Tex.Civ.App., 287 S.W.2d 500, n. r. e.

“However, while such is generally stated to be the rule, there are exceptions and one exception is that in analogy to the rule that a party may prove the truth of particular facts in direct contradiction of the testimony of his witness, he may disprove facts stated in a document introduced by him.” Trice Production Company v. Dutton Drilling Company, Tex.Civ.App., 333 S.W.2d 607, writ ref., n. r. e. (1960) ; 20 Am.Jur. § 915 p. 771; Masterson v. Bouldin, Tex.Civ.App., 151 S.W.2d 301, writ ref.; Jenkins v. Tanner, Tex.Civ.App., 166 S.W.2d 167, n. w. h.; Hillman v. Hillman, Tex.Com.App., 138 Tex. 111, 157 S.W.2d 143. In the Trice Production case, supra, the Court said:

“It is true that appellant’s attorney’s letter of August 27, received by appel-lee sometime on the 28th, purported to terminate the contract under paragraph 7. However, this letter was written by counsel for appellant, and we think it no more binding on the adverse party who introduces it than would be oral testimony offered by a party of an adverse witness under our adverse witness rule. T.R.C.P. 182. Further, under the exception to the general rule above stated, we think other evidence contrary to recitals in the letter could be introduced to disprove such recitals.”

The appellee plead that appellant was not injured. The statement by the appellant in the instrument introduced was the same statement that the appellant had already made on the witness stand. Subsequently, there was other evidence introduced by the appellee without objection, tending to prove that the appellant had not been injured on the job as stated in the instrument. This was in conflict with appellant’s testimony and the statement. The jury resolved the question. A party may prove the truth of a particular fact in direct contradiction to the testimony of a witness just the same as he may disprove facts stated in a document which he has introduced. Trice Production Company v. Dutton Drilling Company, supra; Brumit v. Cokins, Tex.Civ.App., 281 S.W.2d 154, wr. ref., n. r. e.; see also 24 Tex.Jur.2d § 719 and Topletz v. Thompson, Tex.Civ.App., 342 S.W.2d 151, and cases cited therein.

Appellant also complains that exhibits P #12 and P #13, being a “physically fit for employment” slip, and a “report of physical examination,” were actually appellee’s exhibits introduced by him and therefore he is bound by the statements contained therein the same as the other exhibit above. We have carefully reviewed the record and are convinced that appellant offered the exhibits and the court admitted them into evidence as exhibits belonging to the plaintiff.

Appellant contends that appellee actually introduced exhibit P #1 (all of the hospital records) which establishes as a fact the injury and incapacity of the appellant. The appellant offered that portion of exhibit P #1 with reference to the hospitalization and treatment of appellant (Johnny Ballard) after July 1, 1961, (a date subsequent to the date of the alleged injury). The ap-pellee objected, contending that all of the hospital records should be introduced and not just the portion concerning the alleged injury. The court overruled the objection stating that the appellant could offer such part of the record as he saw fit. At that time the appellee then offered the balance of exhibit P #1 concerning injuries prior to the claim in this suit because it covered his disability on prior injuries. The court then admitted all of it. Exhibit P # 1 was admitted into evidence, one portion offered by appellant concerning the alleged injury after he had been admitted to the hospital as a result of the alleged injury of this suit, and the other part of exhibit P #1 offered by appellee as to a previous injury to which the appellant’s only objection was, that it was not to be admitted until that portion was proven to be material. The point is not well taken.

We have considered the entire record and find that the evidence is sufficient to support the jury’s answer. The Court of Civil Appeals cannot substitute its judgment for that of the jury even if from the evidence they would have found different from the jury. We believe and hold, that the fact issues necessary to be determined in this case were resolved by the jury’s findings which were supported by the evidence, and which findings were not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Appellant’s points one, two, three, nine and ten are overruled.

Appellant’s point six, being a motion to disregard the jury findings for the reasons set forth in appellant’s points one through three and nine and ten, has already been considered and is overruled. The second part of his point six raises, for the first time, the point that the trial court should have declared a mistrial because the verdict of the jury was incomplete. This was not assigned as a ground of error in appellant’s motion for new trial and is therefore overruled as being waived. Rule 374, Texas Rules of Civil Procedure.

Appellant’s position under points four and five is that the appellee insurance company made proof of prior claims and injuries and elicited information merely for the sake of proving prior claims to prejudice the jury against the appellant by inferring that appellant was a malingerer in respect to the injury sued on.

Appellee plead, in addition to a general denial, that appellant’s loss of earning capacity was caused by his condition of health or some other accidental injury and in the alternative, that under the provisions of Section 12c of Article 8306, the appellant had suffered one or more previous injuries which contributed to appellant’s present condition of incapacity, if any, which would limit appellee’s liability under the provisions of Section 12c of Article 8306. Appellant admitted several previous injuries to his back beginning twenty years prior to the alleged injury, the basis for this suit. In addition, he admitted to injury as a result of a fight and being hit over the head with a beer bottle; an incident when he was kicked in the head by a calf, an automobile accident in which he received head injuries and was unconscious; and another injury to the head when he raised up under a shed causing a severe brain clot necessitating an operation. On cross-examination in regard to one of the injuries in 1958, he was asked whether or not he had had two injuries at that time for which he had made a claim.. The answer and questioning was as follows:

“A. They wanted me to sign a release.
Q. You had two separate injuries about that time for which you made a claim?
A. I didn’t make a claim over the injury.
Q. You were paid money.
A. The insurance man came out.
MR. HOLLOWAY (attorney for appellant) : Object at this time to any other injury unless they are related to the particular injury sustained by this man or connected in some way for impeachment purposes or to show he made any statement that is inconsistent.
MR. CARSEY (attorney for appellee): We will tie it up.
THE COURT: Overruled.
Q. Going back, you had two separate injuries you were claiming on the job in 1958?
A. Yes.
Q. What was that injury?
A. A finger injury, a broke tendon in my hand.
Q. You were paid money for that?
MR. HOLLOWAY (attorney for appellant) : Again I object to that as being immaterial to any issue and I ask the Court to instruct the jury to disregard it.
THE COURT: Overruled.”

The question was never answered. There were other questions asked in connection with the head injuries. Appellee’s witness, the foreman on the job where appellant worked, testified that he had observed appellant doing unusual things while working at the machine shop, including an attempt to undo an electrical transformer and switch box and some peculiar behavior concerning instructions on getting a pot of coffee. The owner of the company testified that he terminated appellant’s employment partly because he didn’t think appellant mentally capable of holding the job as a helper and night watchman. While a prior injury must have been compensable in order for it to be the basis for a reduction of a carrier’s liability under Section 12c of Article 8306, a prior non-compensa-ble injury, disease or condition of health may be defensively plead and proved as the sole cause of plaintiff’s incapacity. 63 Tex.Jur.2d, p. 425; Texas Indemnity Ins. Co. v. Arant, Tex.Civ.App., 171 S.W.2d 915, writ ref., w. o. m.; Traders & General Ins. Co. v. Watson, Tex.Civ.App., 131 S.W.2d 1103, writ dism., judg. cor. This is an inferential rebuttal issue and the burden of proving the negative of such issue is upon the claimant. Hodges on Special Issue Submission in Texas, Chapter 3, Section 16; Hartford Accident & Indemnity Company v. Shelton, Tex.Civ.App., 119 S.W.2d 118. The back injury and head injury were compensable injuries and were admissible. Appellant’s Notice of Injury and Claim for Compensation and statement attached thereto in connection with the 1958 back injury and a portion of appellant’s petition in connection with the suit arising out of a head injury were admitted into evidence to impeach the appellant. There were no objections to either. Some of the evidence was admissible on the issues submitted by appellee’s pleadings. Some of the evidence was not objected to, such as the blow by the beer bottle and the head injury as a result of the automobile accident. Other evidence was properly admitted for impeachment without objection. We believe that it was error for the appellee to question the appellant as to whether or not he had been paid any money, but in view of the fact that the appellant did not answer the question, we believe that such error as. to this, and any possible error as to the other evidence, did not amount to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case. Rule 434, T.R.C.P.

Appellant cites as authority for such error Hartford Accident & Indemnity Co. v. McCardell, Sup.Ct., 369 S.W.2d 331, and St. Paul Fire & Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744. In the McCardell case one of the questions was whether such documentary evidence regarding prior claims before the Industrial Accident Board was admissible. We believe that the questionable evidence can be distinguished and under the facts before us if there was error it was harmless under Rule 434, T.R.C.P.

Appellant’s points seven and eight complain that the trial court erred in admitting evidence of certain witnesses which tended to establish alleged idiosyncrasies and peculiar behavior of the appellant in connection with his work and evidence that appellant was collecting salary from his employer for unauthorized work time.

Appellant worked approximately two and one-half weeks after his alleged injury and according to him, Mr. O. D. Pritchett, the owner of the business, terminated his employment on a temporary basis * * * “not over ten days or two weeks.” Appellant admitted that he did not inform Pritch-ett of his injury during the last two and one-half-week period that he worked, nor at the time that he was let go on a supposedly temporary basis. At the .end of the two-week lay-off period, appellant attempted to regain employment but was refused. He testified that a few days after the two-week lay-off period, “without a warning or nothing I was laid off”, appellant contacted several of his fellow employees and inferred that he had been fired because he had gotten hurt on the job and was going to see a doctor.

Appellant testified that he had been guaranteed an average weekly wage which would correspond to the ten to twenty hours of overtime that he was putting in. Pritchett testified that appellant had worked unauthorized hours and was drawing an enormous amount of money for the position as helper. Appellant denied that Pritchett had ever talked to him about the excessive unauthorized work time. Pritchett, testified that he had talked to appellant on at least two occasions, asking appellant as to why he kept violating the orders of working excessive hours. Pritchett was then asked if he had received reports from his employees in the course of their job or their employment about the way in which appellant was doing his job and any unusual occurrences involving him. Pritchett testified that the job foreman had come to him on several occasions relating some incidents, and he felt that the man should be dismissed * * * “that he was incapable of being responsible.” Objection was overruled. Pritchett was then asked: “Did you terminate Mr. Ballard’s employment?” He stated: “Yes”. When asked why, he stated that he did not think he was mentally capable of holding the job. There was no objection to the answer. We believe that such questions under the facts were not objectionable, and were proper rebuttal to appellant’s testimony, or if it was error, it was harmless. Rule 374, T.R.C.P.

Other complaints made by appellant under point seven were to various witnesses’ testimony as to alleged idiosyncrasies and peculiar behavior of the appellant in connection with his work, but such complaints were not brought forward in his amended motion for new trial and since such rulings of the trial court were not assigned as ground of error in appellant’s motion for new trial, they are waived. See Rule 374, T.R.C.P.

There were seventeen special issues submitted to the jury. Special Issue No. 1 inquired as to whether or not the appellant sustained an injury, to which the jury answered that he had not. Special Issues 2 through 15 were conditional issues (based on an affirmative answer to Issue No. 1) and therefore not answered. Special Issues 16 and 17 were defensive issues submitted by the appellee in which they inquired: (16) that appellant’s incapacity, if any, was not caused solely by emotional disturbances wholly unrelated to his employment and unrelated in whole or in part to any injury alleged to have been sustained on or about June 30, 1961; and (17) that appellant’s incapacity, if any, is not caused solely by an injury or injuries sustained by him before June 30, 1961. Appellant objected to Special Issues 16 and 17 on the usual evidence points; that there were no pleadings to support them; that the issues improperly placed the burden upon the appellant; and that the issues constituted a comment by the court on the sufficiency of the evidence. The judgment of the court stated that prior to the receipt and filing of the verdict the appellee in open court announced that it desired to withdraw from the consideration of the jury Issues 16 and 17, and waived the answering of the issues by the jury and any right or benefit which might accrue to appellee by any answer that the jury might make to Issues 16 and 17, and moved the court to withdraw such issues for consideration. The motion was granted by the court and the jury was instructed not to answer the issues. Appellant excepted to the court’s ruling.

Appellant argues that the issues were improperly worded and further that since such issues were unconditionally submitted, he is entitled to the issues being answered by the jury because it would have produced a conflict with the jury’s finding (that appellant had not suffered any injury on June 30, 1961). Citing Traders & General Insurance Co. v. Daniel, Tex.Civ.App., 114 S.W.2d 336 (1938). The issues in question were appellee’s pleaded defensive issues, and we believe that such issues would have become material only if the jury had answered Special Issue No. 1 in the affirmative, and had found that appellant had incapacity resulting from such injury. There are other reasons that an answer to the two special issues would not be in conflict. Since the two issues in question were inferential rebuttal issues, they placed the burden of proving the negative upon appellant. The jury could answer such issues only in one of two ways: Either that the appellant had met the burden of proving that his incapacity, if any, was not caused solely by emotional disturbances or prior injuries, or that he had failed to prove that such incapacity, if any, was not caused by those conditions. The jury’s failure to find that appellant sustained an injury to his body on June 30, 1961, did not conflict with a finding that appellant’s incapacity, if any, is not solely caused by emotional disturbances or prior injuries.

In the Supreme Court case of Little Rock Furniture Manufacturing Company v. Dunn, 148 Tex. 197, 222 S.W.2d 985, the Court said:

“It is essential that the party seeking to set aside a verdict on the ground of conflict must be able to point out that one of the conflicting answers of the jury, in connection with the rest of the verdict except the issue with which it conflicts, necessarily requires the entry of a judgment different from that which the court has entered.”

If you consider each of the answers claimed to be in conflict, disregarding the alleged conflicting answer, by taking into consideration all of the rest of the verdict, and if, so considered, one of the answers would require a judgment in favor of the appellant and the other would require a judgment in favor of the appellee, then the answers are fatally in conflict.

We do not believe that there could be any conflict between answer to Special Issue 1 and the possible answers to Special Issues 16 and 17, or that by disregarding a possible conflicting answer the rest of the verdict would require a judgment to be entered in favor of the appellant. Appellant’s points eleven and twelve are overruled.

The judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    Herman GOLDBLATT, Appellant, v. The COMMISSIONERS COURT OF TARRANT COUNTY, Appellee.
    No. 16646.
    Court of Civil Appeals of Texas. Fort Worth.
    May 28, 1965.
    Clyde, Hines & Craig and A1 Clyde, Fort Worth, for appellant.
    Brown, Herman, Scott & Young and Ar-dell M. Young, Fort Worth, for appellee.
   RENFRO, Justice.

The plaintiff, Herman Goldblatt, brought suit against the County Judge and the members of The Commissioners Court of Tarrant County, praying for temporary and permanent injunctions prohibiting defendants from taking certain real property through condemnation proceedings.

Our records shown a subsequent appeal on file in a later suit, not yet submitted but involving the same parties and subject matter.

As of the time the instant case was filed, hearing had thereon, and judgment entered, the defendants had taken no official action to condemn the property.

Following a full hearing on plaintiff’s motion for temporary injunction, the defendants filed motion for judgment on the whole case, the motion being based upon the pleadings, deposition, and the testimony introduced at the hearing on the motion for temporary injunction.

After considering the motion, the deposition, pleadings, sworn testimony and argument of counsel, the court entered judgment that the relief requested by plaintiff be “in all things denied”.

Thus the judgment entered was final, not merely interlocutory.

The plaintiff did not file a brief in this Court, hence there is no point of error before us.

An examination of the record fails to show any fundamental error and, there being no assigned errors, the judgment is affirmed.

Affirmed.


author: BATEMAN, Justice.

text:
    OTIS ELEVATOR COMPANY et al., Appellants, v. Doris L. BOND, Appellee.
    No. 16242.
    Court of Civil Appeals of Texas. Dallas.
    May 14, 1965.
    Supplemental Opinion June 4, 1965.
    Bailey & Williams, James A. Williams, Strasburger, Price, Kelton, Miller & Martin, Hobert Price, Dallas, for appellants.
    Bonney & Wade and Minor Morgan, Dallas, for appellee.
   BATEMAN, Justice.

For the facts of this case see our opinion in Otis Elevator Co. v. Bond, Tex.Civ.App., 373 S.W.2d 518, and the opinion of the Supreme Court of Texas in Bond v. Otis Elevator Co., 1965, 388 S.W.2d 681, 8 Sup.Ct. Journal 319.

In reversing our judgment the Supreme Court has held that the evidence shows conclusively that the elevator in question was under joint control of Adolphus Tower and Otis Elevator Company, and that the mishap involved here was one “which does not ordinarily occur without negligence, and is such an accident, that from the mere showing that it happened, negligence of those in control may be inferred,” thus making the res ipsa loquitur doctrine fully applicable; that the jury finding that Otis Elevator Company negligently failed to properly maintain the elevator is a general finding of negligence, and not a specific finding, as we had thought. Therefore, we were in error in sustaining Otis’ points asserting lack of pleadings and no evidence to support this finding. The case has been remanded to us for reconsideration of our holding that there was insufficient evidence to support the same.

In the light of the Supreme Court’s opinion, we now hold that, since our decision in this respect was on a theory now found to have been erroneous, the points of error asserting that the evidence was insufficient to support a finding of negligence, were improperly sustained by us and they are now overruled.

The court has also remanded the case to us for determination of the question of ex-cessiveness of the damages found by the jury. These points were not passed upon by us in our former opinion. The evidence on these points is summarized briefly as follows:

Doris Bond, the appellee, testified that when the elevator stopped suddenly and began bouncing up and down she fell to the floor and injured her left ankle, causing pain and swelling of the ankle. She was treated by Dr. Halley, who operated on her ankle, placing a “pin” in it. She was in Baylor Hospital twenty-nine days; her left leg was put in a long cast which was replaced after six or seven weeks with a shorter one, and the shorter one was removed about April 1, 1960. She said that during this period she could get around on crutches. The short cast was replaced with an elastic bandage and in the first few months she was able to be up for only short periods of time. She could force herself to stay up longer, but she was in considerable pain and after being up for a very short time she had a very bad and noticeable limp, “and drug that leg and foot quite a bit.” She gradually began to be able to stand a little more and through the two and one-half years since the accident she has regained quite a bit of use of the foot and leg but still limps when she has been up “a length of time,” and is not able to stand very long at a time. She said she still felt pain and discomfort in the ankle, it being most noticeable when she has been standing a little while and is also noticeable when she puts on “heels”. She is always conscious of the discomfort with ascending or descending steps. At the time of the trial, she said she was not able to work long hours on her feet; that the pain in the ankle extends up the left side, in her knee, her hip and into her back. She also said that she was extremely nervous, had a great deal of tension and strain and is unable to go above the fourth or fifth floor in elevators and is still very badly affected by any kind of moving machinery, that frequently if she is in an automobile in heavy traffic she suffers from nausea and cold sweating. She also has recurrent nightmares involving the accident, and is unable to do any kind of work that involves any kind of pressure, and doesn’t feel that she could take any responsibility “on a job situation.” .

About two weeks after she got out of the last cast, and was able to get around with the bandage pretty good, she went to work for another company and in about four months she realized she was not able to work full time and arranged to work half time, which she did for about two months. Thereafter she worked for a country club for about three months, after which time she tried to get temporary employment. She sought the aid of a psychiatrist. She worked from September 1,1961 to December 1, 1961 for a new company being formed, but which did not stay in business long. In 1962 she started working on a part time basis, instructing ladies in a coin-operated dry cleaning establish, .lent. She said her earnings in 1960 were $2,332.50; and in 1961 they were $1,772.50; and in the first half of 1962 were $750; and that her medical expenses were $2,285.81. At the time of the accident she was employed as manager of an employment service office at a salary of $390 a month.

Dr. Ruth Jackson, an orthopedic surgeon, testified that she first saw appellee on November 9,1961, examined her and took x-ray pictures; that there was a full range of ankle motion and a full range of toe motion, some instability of the ankle joint from side to side, no swelling of the ankle joint at that time, but she noticed a difference in the color of the two legs, indicating a disturbance of the blood supply to the left leg. She found the left knee to be stable but she could feel a crepitus (a creaking or crackling sound in the knee joint). The x-rays showed a metal screw in the left ankle and that the fractured bone had healed.

She next saw Miss Bond on November 13, 1961, again on March 28, 1962 and again on June 1, 1962. She found a good range of motion in the ankle joint, no specific swelling; that she had begun to develop a bunion on the side of the big toe joint which was red and somewhat painful. She said that in her opinion the patient had some disability in her ankle, had had two bones fractured which were realigned in good position, but that there was still a slight amount of lateral instability or looseness of the joint and that in her opinion, as time goes on and with continued use of the ankle, she will have increasing disability and the amount of the disability is dependent to a great extent upon what she does, that is, how much she has to walk on that foot and how much she has to stand on it, and what her activities are; that in her opinion the patient has had pain in the past and will have pain in the future.

On cross-examination Dr. Jackson testified that she considered Dr. Halley’s surgery on the ankle as successful and the alignment of the bones quite good; that when she examined the patient on March 28, 1962, she was having minimal symptoms referable to her ankle, and that “minimal” means a small amount, and that in her opinion the patient will undoubtedly have some minimal amount of permanent residual disability of this ankle; that it is unlikely that the screw which Dr. Halley placed in the ankle will ever have to be removed, but that it is a simple procedure to take it out under a local anesthetic.

Dr. B. C. Halley, Jr., an orthopedic surgeon, testified that he examined appellee’s ankle on the date of the accident, December 24, 1959, and found swelling and complaint of discomfort upon any attempted motion; that x-ray studies revealed fractures of two bones in the ankle; that he inserted a screw securing a fragment of the shin bone to the main shaft of the bone; that she was discharged from the hospital on January 21, 1960; that she was put in a long-leg plaster cast which on February 4,1960 was removed and a short-leg cast applied extending merely to the knee or slightly below it. He said he considered her disability total or “close to total” until November 10,1960, and partial thereafter. He said that he would presume that there will always be some degree of complaint if it has lasted this long but that he would presume the condition of her ankle would not get any worse than it was at the time of trial; that she will not have any instability because all stability has been restored ; that he wouldn’t say that her ankle was just as good as the other one; that when he saw her on March 3, 1960 he encouraged her to do more walking. There was no swelling at that time and minimal complaint upon palpation, and that although there was some complaint, as would be expected on motion of the ankle, it certainly seemed to move well without any marked complaint; that he was pleased with the progress she was making. He saw her again on May 18, 1960 and predicted at that time that in six months she would be able to return to her full normal activities and most likely not have any future difficulty unless it were necessary to remove the screw. He suspected, however, that the greatest difficulty would be aching about the left ankle with over-activity; also that over-activity would bring on an episode of sinivitis, which is an inflammation or irritation of the lining of a particular joint that furnishes fluid to the joints in small amounts so that the cartilage on the ends of the bones will move smoothly, and that this sinivitis will probably be intermittent.

Dr. Halley also testified that the first time he saw Doris Bond was on July 30,1954, and that she related to him past history of osteomyelitis on the right side of her face, which subsided with repeated treatments of penicillin and streptomycin, and that she had also had x-ray therapy of her throat because of a gland enlargement, also difficulty with her eyes being myopic and getting worse and also night blindness; that she complained of heat flashes on the front of her left shin, which was intermittent for several days; also pain and soreness in her back and left leg and thigh, which had become rather constant; she stated that she had had intermittent low back pain for the past several years; that on examination there was some complaint on palpation over the left sciatic notch; that the lumbar spine was full in range without complaint, other than complaint of stiffness; there was a complaint of tightness of the left leg and soreness in the left thigh. There was less sensation in one spot on the lateral aspect of the left leg. He said the x-rays taken in 1954 revealed the lumbo-sacral intervertebral disk space to be somewhat thin, which he thought was a congenital condition, together with a mild subluxation of the facet articulation at both the level between the fourth and fifth lumbar vertebrae and the lumbo-sacral level; that the sacroiliac joints appeared to be clear with no evidence of arthritic change.

The appellee Doris Bond, who was 44 years old at the time of the trial, again testified that she had been to Dr. Halley for treatment before the accident in question, in 1954, at which time she had a weakness in the middle of her back and a numbness in her feet; that she had an infected tooth and when two certain teeth were removed her trouble in her back and left leg and the numbness in her feet cleared up.

We think the above is a fair summary of all the evidence the jury had upon which to determine appellee’s damages, which they found to be $31,254. In our opinion this amount is excessive and the record as a whole would justify a verdict of not over $25,000. If appellee will file in this court a remittitur of all sums in excess of $25,000 within fifteen days after this date the judgment will be accordingly reformed and rendered in her favor for $25,000, plus interest and costs; otherwise the judgment will be reversed and the cause remanded for a new trial. 3-B Tex.Jur., Appeal and Error, pp. 555-7, §§ 992, 993; Denning v. Republic Nat’l Bank Bldg. Co., Tex.Civ.App., 294 S.W.2d 888, 897, wr. ref. n. r. e.; Texas & New Orleans Ry. Co. v. Hart, Tex.Civ.App., 350 S.W.2d 227, 233, reversed on other grounds, 356 S.W.2d 901; J. Weingarten, Inc. v. Gauthier, Tex.Civ.App., 305 S.W.2d 181, 198, no wr. hist.; Reiswerg v. Martinez, Tex.Civ.App., 299 S.W.2d 388, 391, no wr. hist.; Sears, Roebuck & Co. v. Jones, Tex.Civ.App., 303 S.W.2d 432, 438, wr. ref. n. r. e.

Affirmed on condition of remittitur.

Supplemental Opinion

The appellee has filed her remittitur pursuant to and in accordance with the last paragraph of our main opinion. Accordingly the judgment appealed from is reformed by reducing the principal amount recovered by Doris L. Bond against Adolphus Tower Building and Otis Elevator Company, jointly and severally, and by Adolphus Tower Building over against Otis Elevator Company, from $31,254 to $25,000, with interest thereon at the rate of six per cent per annum from November 16, 1962, the date of the original judgment, and as reformed the said judgment is affirmed, including the taxing of all costs against Otis Elevator Company.

Reformed and affirmed.


author: CHAPMAN, Justice.

text:
    Don S. MARSALIS, Jr., Appellant, v. P. R. GARRE, Appellee.
    No. 7470.
    Court of Civil Appeals of Texas. Amarillo.
    May 24, 1965.
    Rehearing Denied June 21, 1965.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellee.
   CHAPMAN, Justice.

This is a summary judgment case which had its origin in a suit filed by Don S. Mar-salis, Jr., against Dr. P. R. Garre to recover $2,758.70, which he alleges is due by virtue of an assignment from Parker, Ford & Company, Inc. to him on an account originally owed by Dr. Garre to said company after appellant had paid that amount to the company.

Appellant, Don S. Marsalis, Jr., at the times pertinent hereto, was a registered representative of Parker, Ford & Company, Inc., investment bankers and brokers, with an office in Amarillo, Potter County, Texas. The company’s principal office was in Dallas, Texas. Don Bucholz was its secretary and comptroller in the Dallas office. Appellant was a salesman for the stock brokers.

During September of 1961, appellee, Dr. P. R. Garre, engaged in a stock-market venture with Parker-Ford with appellant acting as the representative of the stock-brokerage company. After a number of transactions appellee was “sold out” by the Dallas office. He considered the brokerage company had not handled his stock properly and had been grossly negligent in their dealings with him. The resulting loss was $4,541.94. The company sent him a bill showing his loss, which he ignored. Mr. Bucholz called him on the telephone a time or two trying to work out a settlement on the account his company had billed the doctor for and he told him, “Rather than have any trouble about it, to get Don in any trouble, that I was willing to split it down the middle.”

Mr. Bucholz later came to Amarillo and entered into a discussion with Dr. Garre, Mr. Marsalis, and the Amarillo office manager of the brokerage company, Mr. Walter Mount, Jr. The deposition of appellee shows:

“Mr. Buchholz said, ‘How do you •feel about this? How would you like to settle it?’
And I said T would like you to go back to Dallas and forget about it.’ And he said, T don’t believe I can do that.’
He said, ‘What would you be willing to do ? ’
I said, ‘You mention a figure.’
He said, ‘We know there has been a number of irregularities and misunderstandings in this account, and for this Parker-Ford accepts the responsibility.’
He said, ‘We will settle with you for the amount of your original loss.’
And I said, ‘Mr. Buchholz, if you will return to me 100 shares of Ling-Temco stock, which you are holding in ransom, and place them on my desk and take this check and walk out of my office and I won’t bother you any more and you won’t bother me any more, this settles it once and for all and I am through with Parker-Ford.’ And I said, T will go along with you.’
So I said, ‘There is one thing I want to do.’ I said, ‘I want to protect Don Marsalis.’ I said, ‘Now, if you want to sue both of us, get after it. We will fight it, but,’ I said, T want to try to protect him from this, and if this settlement is satisfactory, we are all through with it and that’s the end of it’, and I said, T will give you this check.’
His answer was ‘Doctor, if you will give us a check in the amount of — ’
Q. Of the check that you actually gave?
A. The check that I actually gave, yes. He said, ‘This wipes us clean; you won’t hear any more from Parker Ford.’ ¾
Q. Do you feel that you had an understanding with Parker Ford that would relieve Don Marsalis from any liability ?
A. I didn’t know what the arrangement was. Mr. Buchholz and Mr. Marsalis got up and left the office and, when they came back, I discussed this check in front of Mr. Marsalis and I said, ‘Don, is this all right with you?’ And he said, ‘Go ahead.’
I presumed that any arrangements that Mr. Marsalis had made with Parker Ford came under the heading of their business since they left my office to discuss it.”

When asked in the deposition why he thought he did not owe the account appel-lee answered: “Very simply, I think it had been grossly mishandled without the proper investigation, without the proper and necessary consultation, a good bit of misunderstanding as far as the time element goes, a misunderstanding amounting to what I consider gross negligence.”

Appellant’s deposition showed that after the discussions Dr. Garre and Mr. Bucholz arrived at a figure of $2,283.24 that the former gave the latter a check drawn on the Amarillo National Bank, and the check had marked on it, “Acc’t. to date, paid in full.”

Appellant was subsequently called upon by the company for the difference between the total amount claimed and the sum last mentioned. He paid it and then instituted this suit against Dr. Garre.

From the depositions mentioned, the pleading of the parties and the affidavits of Mr. Bucholz, Mr. Marsalis, Mr. Walter Mount, Jr., and Dr. Garre, the trial court summarily rendered judgment for appellee. It is from such judgment appeal is perfected to this court, the first three points denying the existence of accord and satisfaction in the accepta^e of the check made by Dr. Garre for a lesser amount than the brokerage company’s claim.

We believe under the undisputed admissible evidence the record shows the existence of accord and satisfaction as a matter of law in bar of appellant’s claim.

In Root & Fehl v. Murray Tool Co., Com.App., 26 S.W.2d 189, the court held:

“It is the settled law of this state that, when an account is made the subject of a bona fide dispute between the parties as to its correctness, and the debtor tenders his check to the creditor upon condition that it be accepted in full payment, the creditor must either refuse to receive the check or accept the same burdened by its attached condition. If he accepts the check and cashes the same, he impliedly agrees to the condition, although he may expressly notify the debtor that he is not accepting the same with the condition, but is only applying the same as a partial payment on the account.”

In Burgamy v. Davis, Tex.Civ.App., 313 S.W.2d 365 (N.W.H.) the court said:

“When appellant, knowing appellee was disputing in good faith the amount of the claim, received the check marked ‘Payment of account in full,’ he was given the option either to accept the check as full payment or to return the check to appellee, unaccepted, and hold appellee for his full claim.”

In Texas & P. Ry. Co. v. Poe, 131 Tex. 337, 115 S.W.2d 591, the question for decision was whether Poe might settle a cause of action against the railway company for damages for personal injuries by the acceptance and cashing of a draft reciting it was in full settlement of his injuries, and then maintain a suit for such injuries, in the absence of an agreement to that effect. The court held there was no issue of fact.

Claims arising out of the commission of a tort are particularly applicable subjects for accord and satisfaction. Texas & P. Ry. Co. v. Poe, supra.

In Buford v. Inge Const. Co., Tex.Civ.App., 279 S.W. 513, where the endorsement on a check declared acceptance thereof would constitute full settlement of the disputed amount of the claim and appellee’s manager accepted money represented by the check, the court held there was a valid accord and satisfaction.

In Industrial Life Insurance Company v. Finley, Tex., 382 S.W.2d 100, an insurance executive wrote their former agent stating the enclosed check was in full and final settlement for contingent commissions due the agent under their terminated contract. The agent claimed more commissions than the check represented. The enclosed check bore on its face a notation that it was full payment for all money due as contingent commissions under the agency contract and the former agent cashed the check. After reviewing the cases above cited and many others our Supreme Court in the case just quoted held:

“Under the precedents we have reviewed, the conclusion is inescapable that the undisputed facts in the case at bar establish the defense of accord and satisfaction. The notation on Petitioner’s check, and the statement of the basis of its tender to Respondent in the transmittal letter, were a clear and unequivocal offer of an accord. The act of Respondent in accepting and cashing the check with knowledge of the recitals on the check and in the transmittal letter was an acceptance. The resulting transaction constitutes an accord and satisfaction.”

An affidavit in the record of Walter Mount, Jr., account executive and Amarillo office manager for Parker-Ford, in the record states the stock transactions in question resulted in a loss to Dr. Garre of $4,541.94; that in a meeting with Mr. Mount, appellant, Mr. Bucholz and appel-lee, after some discussions, the doctor offered to pay the company $2,283.24; that Mr. Bucholz for the company agreed to accept that amount; that Mr. Bucholz told appellee he would not hear anything else from Parker-Ford after such payment; that all present at the meeting, including appellant, agreed to the settlement.

Dr. Garre’s affidavit shows he disputed the claim, “because I did not authorize plaintiff or Parker-Ford & Co. Inc., to buy long for me on September 18, 1961, and additionally because plaintiff and Parker, Ford & Co. Inc., were negligent ii advising me incorrectly as to the date I would have to pay for the stock they had purchased in my name.” He also made affidavit that he noted on the check, “Acc’t. to date paid in full,” and “that it was agreed by Parker, Ford & Co., Inc., and myself that the payment of the check would be in full settlement of their claim of $4,541.94, against me and that no further claim or demand would be made on me.” Before the final agreement was made and the check transferred with the notation, “Acc’t. to date paid in full,” Dr. Garre had told Mr. Bucholz he also wanted to protect Don Marsalis, “and if this statement is satisfactory, we are through with it and that’s the end of it * * * I will give you this check.”

Mr. Bucholz replied: “Dr., if you will give us a check in amount of (the check he actually gave) * * * this wipes us clean; you won’t hear any more from Parker-Ford.”

Appellant argues by brief such conversation shows the settlement was only as between Parker-Ford and appellee; that the statement, “you won’t hear from us” did not mean “you nor Don Marsalis will hear from us.” This argument completely overlooks the statement, “we are through with it and that’s the end of it. * * * ” Appellant’s affidavit stated he had previously told Dr. Garre before the settlement that he, appellant, would suffer the loss on his account, which makes the expression, “we are through with it ánd that’s the end of it,” even more meaningful. (All italics and parenthetical statements herein are ours.)

We cannot agree such interpretation as that contended for by appellant is reasonably deducible from the evidence under the authority of Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93, the authority cited therefor. There the fact issue was whether the defendant acted in bad faith in violation of a fiduciary duty between the parties involving oil and gas leases, and the case had no analogy to the record made here.

Where affidavits and deposition statements are equivocal in nature the same rule is applied in summary judgment proceedings as those used to test the evidence in a conventional trial in deciding whether or not an instructed verdict should be given. Valley Stockyards Company v. Kinsel, Tex., 369 S.W.2d 19.

Under the admissible evidence here, we believe if the case had been tried to a jury the court would have been legally obligated to instruct a verdict.

If all the statements in the affidavits and depositions in this record were admissible in evidence, it appears a judgment summarily rendered might have been improper, but many such statements constitute opinions of the parties and witnesses and conclusions of law clearly not admissible. For example, the principal contention of appellant which he argues by brief raised a fact issue is found in Mr. Bueholz’ affidavit wherein he says:

“In our discussion with Dr. Garre I made it clear that the acceptance of his payment did not constitute a release. I told him that Parker-Ford & Company, Inc. would not pursue the matter any further, but that the payment would not constitute a settlement of any claim by Don S. Marsalis, Jr. against him. It is my opinion that Dr. Garre fully understood that Don S. Marsalis, Jr. retained the right to claim against any unpaid balance of this account.”

His statement to the effect that “the acceptance of his payment did not constitute a release” is a conclusion of law and Mr. Bueholz does not show in the record to be an expert in that field such as to constitute an exception to the rule so that under such circumstances his conclusions of law would be inadmissible. Even a mixed conclusion of law and fact is inadmissible except under such exceptions as do not exist in Mr. Bueholz’ testimony. Yaeger v. Long Bros. Drilling Co., Tex.Civ.App., 147 S.W.2d 276 (writ refused).

His next statement that “the payment would not constitute a settlement of any claim by Don S. Marsalis, Jr., against him” is clearly a conclusion of law under this record. The third sentence states on its face it is the affiant’s opinion as to what Dr. Garre understood, and clearly would not be admissible in evidence in a conventional trial. Such statements are insufficient to raise a fact issue. Section (e), Rule 166-A Vernon’s Ann.Rules of Civil Procedure; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832 (writ refused); Yaeger v. Long Bros. Drilling Co., supra; Mason v. Mid-Continent Supply Company, Tex.Civ.App., 374 S.W.2d 922; Fonville v. Southern Materials Co., Tex.Civ.App., 239 S.W.2d 885 (N.R.E.).

We, therefore, believe under the statements made in the depositions and affidavits that would be admissible in evidence upon the trial on the merits, and upon the authorities cited, the record shows an accord and satisfaction as a matter of law.

The last point urges a material fact issue as to whether appellee had knowledge of the guaranty agreement between appellant and the brokerage company and whether appellee “assented thereto so as to give rise to an independent cause of action for reimbursement against him * * citing a number of authorities for his alleged position. We do not believe his authority supports his contention under the facts of the instant case. He cites a Kansas Supreme Court case styled Leslie v. Compton, 103 Kan. 92, 172 P. 1015. That case held:

“A guarantor who has become such at the request of the principal has the benefit of an implied promise of indemnity, and a new and independent cause of action arises thereon whenever he is compelled to make a payment, irrespective of the time of maturity of the original debt. But a guarantor who becomes such by an agreement with the creditor, to which the debtor is not a party, and is compelled to make payment, has no claim based upon an implied promise of reimbursement; his rights are equivalent to those of a purchaser of the debt

In the instant case the agreement between appellant and Parker-Ford was executed before the transactions with Dr. Garre here involved came into existence, so there was no guaranty relation between appellant and appellee. When Mr. Mar-salis paid the difference between the check Dr. Garre had given the brokerage company and the amount they had originally claimed, he acquired no more right than Parker-Ford had against Dr. Garre, the latter having in no way assented to the pri- or entry of another into a guaranty agreement. Accordingly, we believe the point is without merit and that the authorities cited do not support appellant’s contention.

The judgment of the trial court is in all things affirmed.