author: BELL, Chief Justice.

text:
    Etta F. WHITE et vir, Appellants, v. TRANSIT CASUALTY COMPANY, Appellee.
    No. 14770.
    Court of Civil Appeals of Texas. Houston.
    March 31, 1966.
    Rehearing Denied May 5, 1966.

      Schwartz & Lapin, Newton B. Schwartz, Houston, for appellants.
    Vincent W. Rehmet, Houston, Barrow, Bland, Rehmet & Singleton, Houston, of counsel, for appellee.
   BELL, Chief Justice.

Appellee filed suit against August E. Brode, James Lawrence Carr, Etta F. White and her husband, Golden J. White, seeking a judgment declaring that it was not obligated to defend Brode or Carr in any suit brought by the Whites to recover damages resulting to Mrs. White from personal injuries received by her when a truck belonging to Brode and apparently driven by Carr struck the automobile driven by Mrs. White. The only suit that has been brought was against Brode. By the time of trial of this case below the statute of limitation had intervened as to Carr. Too, the suit sought a declaration that appellee would have no obligation to pay any part of any judgment that appellants might recover. The basis of the suit was the failure of Carr and Brode, the assureds, to give notice of the accident as required by the policy of public liability insurance issued by appellee.

The court, after trial without jury, rendered judgment favorable to appellee in all respects as prayed for.

It appears that Brode and Carr were brothers-in-law and during October, November and December, 1960, lived together at 1805 Havner Street in Houston. In November, 1960, Brode purchased a truck, making a part payment on the purchase price. He took title in his name. He had had an operation on his back and was unable at the time to operate the truck. He and Carr agreed that Carr would operate the truck. From the revenue derived from its operation, the deferred payments on the purchase price and expenses of operation were to be made and any profit was to be divided equally between them.

Brode obtained a policy of public liability insurance covering the truck. He was named assured. Carr was, under the facts appearing here, an additional, though an unnamed, assured.

On December 7, 1960, the truck, while apparently being driven by Carr, was in collision with the automobile driven by Mrs. White.

Brode denies that he ever knew of the accident until he was sued. Carr is not heard from in the record except through a hearsay statement introduced through the insurer’s claim adjuster. It can have no effect on the rights of Brode and the Whites. Neither Brode nor Carr ever gave any notice to appellee. When Brode was served with citation he had it sent to appellee.

On December 30, 1960, the then attorney for the Whites, Mr. Filer, wrote a letter to Brode addressed to 1805 Hauner Rd. in Houston. The name of the street should have been Havner. Brode denies he ever received the letter. He moved from that address the last part of December or the first part of January. A copy of the letter was sent to appellee at its correct address in St. Louis, Missouri. It was received by appellee according to the date stamped on it by appellee, on January 6, 1961. The letter stated the attorney had been employed to represent Mrs. White to present her cause of action growing out of the automobile collision occurring “at or near Harris County, Texas” on December 7, 1960. It also stated a copy of the letter was being sent appellee advising it of the attorney’s interest and threatened suit if there was no reply in seven days.

On January 24, 1961, appellee wrote the manager of Kuhn Claim Service in Houston enclosing the copy of the letter from the attorney. Appellee’s letter showed as assured “Harris Independent Truck Association, August E. Brode”. Brode had joined this association and his truck was operated by Carr in doing work obtained for its members by the association. The letter also stated this:

“This office does not seem to have a file concerning this accident and it would be appreciated if you would make an investigation of same and obtain a loss report from our assured and conduct whatever further contacts seem dictated with claimants’ attorney following said investigation.

“Please acknowledge receipt and acceptance of this assignment for purposes mentioned herein.

“This office will look forward to receiving a report concerning your investigation, along with your recommendations for bringing this file to an early conclusion.”

Kuhn immediately after receiving the letter of January 24 began to try to locate Brode. He knew nothing of Carr at this point. He went to the Harris County Independent Truck Association and was only able to locate the correct address of Brode. He could learn nothing more of Brode. He went to the address and the house was vacant. The neighbors of whom he inquired could tell him nothing of Brode’s whereabouts. He then contacted G.M.A.C., where the truck had been financed, but could get no information. The truck had been repossessed. He went to the Houston Police Department but could get no help as he had no location of the' accident. He made no further investigation.

On April 12, 1962, after suit was filed against Brode, Mr. Kuhn and the appellee’s attorney went to the V. A. Hospital where Brode had been located. Brode executed a non-waiver agreement. Mr. Brode gave them information that helped locate Mr. Carr. Mr. Kuhn later talked to Mr. Carr. It appears that Mr. Carr had reported the accident to the Department of Public Safety in Austin. Mr. Kuhn never contacted Mrs. White’s attorney. No non-waiver agreement was taken from Carr. He has never been sued.

There was no pleading by the defendants of waiver. There is no contention that there was anything that prevented Carr from notifying appellee of the accident and there was evidence that he had read the policy and therefore knew its contents. There is no contention that Brode, had he known of the accident, could not have promptly given notice. It should be noticed that in this proceeding judgment by default was rendered against Brode and Carr.

The contentions of the Whites are that the attorney for the Whites in his letter of December 30, 1960, gave notice “on behalf” of Brode and Carr, and if this was not of itself sufficient notice at least sufficient information was given appellee from which it could get full information on the accident and it has therefore not been injured by failure of the assured to give notice. Too, it is urged Brode is excused because he did not know of the accident.

The policy provision, which is a condition precedent to appellee’s liability to the assureds, reads as follows:

Conditions

“Notice of Accident — Coverages A, B and C. When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.”

We are of the view that appellants’ position is contrary to the law as established by New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56, and Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95, both cases being decisions by the Supreme Court of Texas.

In the Hamblen case, the assured had no notice of the accident until suit was filed on August 4, 1937. The insurer had no notice of the accident until it received a letter from the assured’s attorney March 8, 1938. The insurer refused to defend after demand. The assured’s attorney successfully defended the suit and filed suit to recover a reasonable attorney’s fee and expenses in defending the suit. The jury found the assured did not give notice of the citation within a reasonable time after receiving it but that the insurer suffered no injury by reason of such failure and was not thereby prevented from making any defense in the suit. The trial court rendered judgment on the verdict favorable to the plaintiff. The Court of Civil Appeals affirmed. The Supreme Court reversed the lower courts and rendered judgment for the insurer. The effect of the holding is that liability is determined, not by whether the insurer was injured, but by the terms of the contract and by the contract the giving of notice (in this case of the citation) was a condition precedent to liability.

In the Klein case, the assured gave no notice to the insurer of the accident. However, a few days after the accident the insurer “in some way” learned of it and employed an adjuster to investigate the accident. It does not appear to what extent investigation was made, but it appears that the first notice from the assured was 32 days later when the adjuster took a statement from the assured. The court notes there was no claim of waiver. It then holds that though the insurer had notice, no timely notice was given by or on behalf of the assured and that such notice was a condition precedent to liability.

The Whites urge the notice by their attorney was notice “on behalf” of the assured. We think not. We think the term “on behalf of” means someone has given notice who was authorized by the assured to act for him. If we be incorrect in this conclusion, we are of the view the notice was not a sufficient compliance with the notice provision. The letter gave the assured’s name and the name of the injured party. It did not give the injured party’s address or the names or addresses of the witnesses. It did not give the time of the accident, but did give the date. It merely stated the accident occurred “at or near Harris County”. It gave no circumstances of the accident.

As above stated, there was no pleading of waiver. Had there been there would remain no evidence of waiver because all that the insurer did, after receiving the attorney’s letter, was to try to locate the assured. Such other investigation it made was after Brode had executed a non-waiver agreement. And even after this the only investigation seems to have been an interview with Carr.

The Whites here attack the court’s conclusion that Brode and Carr were partners. In this case it seems immaterial whether they formed a partnership or a joint venture or whether Carr was Brode’s agent. In either event Brode was legally charged with knowledge of the accident in which his truck was involved when it was driven by one with his express permission.

Affirmed.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    T. Michael PETERS, Appellant, v. Ronald F. NORRIS, Appellee.
    No. 14662.
    Court of Civil Appeals of Texas. Houston.
    April 7, 1966.
    Anderson & Frank, Robert E. Anderson, Houston, for appellant.
    Andrews, Kurth, Campbell & Jones, Bass C. Wallace, Houston, for appellee.
   WERLEIN, Justice.

This suit was brought by John J. Gal-laher and Ronald F. Norris against T. Michael Peters and Truman B. Outland to recover damages for breach of an alleged verbal agreement of sale to Peters and Outland of a Cessna 310C airplane. The consideration was to be a certain amount of cash and the assumption of a purchase money note, secured by a chattel mortgage upon the airplane, held by Medical Center National Bank. The case was tried before the court without a jury, and judgment was rendered in favor of appellee, Ronald F. Norris, in the sum of $13,094.00 together with interest.

In his judgment, the court recited the following findings of fact and law:

“(1) that there was a contract of sale in regard to the Cessna 310C airplane involved in the suit whereby John Gallaher and Ronald F. Norris agreed to sell said airplane to Truman Outland and T. Michael Peters, upon the condition that said purchasers pay the balance due of that certain promissory note dated September 29, 1961 made payable to the Medical Center National Bank, which note was admitted in evidence; (2) that said contract was breached by defendants through their failure to pay said sum; (3) that the title to the airplane in question passed from plaintiffs to defendants prior to the damage occurring to the airplane; (4) that plaintiff Ronald F. Norris paid to Medical Center National Bank the sum of $5,244.00 on October 15, 1962 and further paid to said Bank the sum of $7,858.66 on April 5, 1965 and that no sums were paid on the promissory note in question by either plaintiff John J. Gallaher, or defendants Truman Outland or T. Michael Peters after May 31, 1962; (5) that there was no contract and no damages as alleged in the ‘cross-action’ against plaintiff John Gallaher.”

Appellant asserts that the finding of the court that there was a contract of sale in regard to said airplane was so against the great weight and preponderance of the evidence as to be manifestly unjust and wrong. We have carefully read the statement of facts and examined the exhibits contained therein, and overrule such assignment.

The court’s judgment was rendered against Peters and Outland jointly and severally, but only Peters has appealed. Although Peters was present during part of the trial, he failed to testify. Nor is there anything in the record indicating that his deposition was ever taken. Ap-pellee Norris did not enter into any of the negotiations or transactions involving the sale of the airplane in question. Such transactions were handled by Gallaher, who jointly owned the airplane with Norris. Gallaher and Norris had previously purchased the airplane in question and had financed such purchase at the Medical Center National Bank in Houston. They executed on September 29, 1961 a monthly installment promissory note made payable to said bank and also a chattel mortgage on the airplane as security for the payment of said note. They made some three payments on the note before they agreed to sell the airplane to Outland and Peters.

Appellee asserts that negotiations for the sale of the airplane resulted in a contract and agreement of sale thereof to appellant Peters and Outland. Gallaher testified that he delivered possession of the airplane to them in January, 1962, and that thereafter one or two monthly payments on the note were made by Outland and Peters. The evidence shows that in May, 1962, the airplane was damaged while being flown by one Harry Noe with permission from Outland. No further payments were made on the note by Outland or Peters, and Norris was called upon to pay the note on October 15, 1962, and did pay at that time the sum of $5,244.00, and later he paid the balance owing thereon in the amount of $7,858.66, whereupon the note was assigned to him by the bank.

In January, 1962, Outland signed the promissory note at the bank which had been executed by Norris and Gallaher, and Gal-laher executed on his behalf and on behalf of Norris, who was his partner in the ownership and operation of the plane, a bill of sale in blank and left it with the president of the bank. The evidence shows that the reason the purchasers of the airplane were not named in the bill of sale was that according to Traylor, the bank president, Outland and Peters “were in the process of either organizing a corporation or buying a corporation. I don’t recall exactly. But, they would furnish me the name of the company to which title was to be transferred.” The name of the company was never furnished Mr. Traylor despite his oral and written requests for such information, and Outland testified that the proposed corporation was never issued a charter. On August 20, 1962 Mr. Traylor wrote a letter to Peters and Outland stating: “We are holding an application for transfer of title to a Cessna Model 310C aircraft that was purchased by you from Dr. Ronald F. Norris and John J. Gallaher. At the time you purchased the aircraft we were asked by Mr. Outland not to transfer title since you intended to form a corporation and wanted record title to the aircraft placed in this corporation.” There is no testimony by Peters that he did not purchase such plane as stated in Mr. Traylor’s letter.

Subsequent to the delivery of the airplane to Outland and Peters, they obtained an insurance policy on the airplane in which they both were named as the insureds. Such policy was in effect at the time the airplane was damaged in a crash in Mexico in May, 1962.

Outland testified, “We applied for insurance on the airplane, so as not to let it stand uninsured.” Although Outland took care of buying the insurance, the evidence shows that appellant Peters called a friend of his about taking out the insurance coverage. Outland further testified, “I was in Mr. Peters’ office when he called him and asked him if he could handle insurance on the airplane.” After the accident the insurance company denied coverage on the ground that the plane was not being flown by a properly qualified pilot. Outland testified that before he signed the note at Medical Center National Bank his agreement with Peters was that “He (Peters) would have a two-thirds interest in the airplane and building and I would have a one-third interest.” Although Outland testified that there was to be included with the airplane a building and certain equipment, the court found that such was not the case. Indeed, Gallaher testified that the Cessna 310C sale was exclusive of any negotiations with respect to the building or equipment in the building. Out-land also testified that either he or Peters could authorize persons to use the airplane, and he admitted that at least one payment to the bank was made after he and Peters took possession of the airplane, and further that he and Peters paid for ar. overhaul of the airplane engine after it came into their possession which cost in the neighborhood of $1,000.00. He further testified that Peters also made out several checks to him, Outland, which he deposited in the Meyerland State Bank in the Main-Line Air Travel account and that the last two checks, he believed, were at the time they had the engine overhauled.

Shortly after the airplane accident Peters and Outland met with the insurance representatives in Peters’ office and discussed with them the insurance claim on the damage to the airplane. Neither Peters nor Outland represented to the insurance representatives that they were not the owners of the airplane, and as stated the insurance was taken out in their names.

The evidence further shows that Gal-laher never flew the airplane after its delivery to Outland and Peters, and that he cancelled the insurance policy he had on the airplane when informed of the insurance coverage secured by Outland and Peters. Gallaher testified that he negotiated personally with Peters and Outland and they reached an agreement where “they would buy the airplane, and we agreed upon delivering of the airplane to them, which I did,” and that under the terms of the agreement, the buyers would pay off the balance due on the note at the bank. After Gallaher learned of the damage to the airplane, and before the insurance company denied liability under their policy, Gallaher received a telephone call from Peters, in which Peters told Gallaher “that he had put up large portions of money to repair — to overhaul the airplane and to operate the airplane and to purchase it, and that he felt that Outland had treated him badly in their business affairs.”

It is our view that there was sufficient direct and circumstantial evidence to support the trial court’s finding of a contract of sale of the airplane. The fact that Peters spent large sums of money to repair and overhaul the airplane and its engines strongly indicates that he considered that he and Outland had bought the plane. Furthermore, Peters went into details in stating that he had put up large portions of money to repair and overhaul the plane and to purchase it. Although Peters never signed the note which Outland had signed, there is nothing in the record to show that he refused to do so. He was in court and could have testified with respect thereto and could have denied the facts adduced in evidence at. the trial by those who did testify if he was not in accord therewith. It is well settled that the existence of an oral contract may be proved by circumstantial evidence as well as by direct evidence. See 13 Tex.Jur.2d, p. 670; Clem v. Forbess, Tex.Civ.App., 10 S.W.2d 223, error dism.; Clower v. Brookman, Tex.Civ.App., 325 S.W.2d 440, and authorities cited therein. In 13 Tex.Jur.2d, at page 298 it is stated:

“ . . . it is also a fundamental rule of law that where an oral contract is under consideration, extrinsic evidence is admissible to show the intention of the parties, as reflected by the circumstances that attended the making of the agreement.”

See Farmers’ Gin Co-Op. Ass’n v. Mitchell, Tex.Civ.App., 233 S.W.2d 948; Pennington Produce Co. v. Browning, Tex.Civ.App., 293 S.W. 935.

In addition to the direct evidence relative to the agreement and the sale, there is strong circumstantial evidence showing that the parties not only intended to enter into a contract of sale but that they understood that they had done so. After the possession of the plane was delivered to Outland and Peters, they exercised control of the airplane and determined who would fly the same. They rented a hanger space for the plane where they kept it. Peters paid for the overhauling of the engines of the airplane, and either Peters or Outland made at least one and possibly two payments at the bank on the installment note. Peters contacted his insurance agent, or friend, and liability and hull insurance coverage was obtained on the plane and the policies were issued to Outland and Peters as the insureds. After the airplane was damaged, Outland and Peters met in Peters’ office to negotiate with the insurance representatives in regard to the damage claim, and Peters called Gallaher and told him of the large sums of money he had expended on the repairing, overhauling and purchase of the airplane.

It is true that there is certain testimony by Outland which indicates that a sale was never consummated because Outland was undertaking to obligate only himself and not Peters, and further that Peters did not sign the note as did Outland, and that the building and equipment were not turned over to Peters and Outland. On the other hand, Gallaher testified that he himself directly negotiated the sale with Outland and Peters, and reached the agreement where they would buy the plane, and sign the note at the bank, and he also testified positively that the sale did not include any building or equipment. The evidence also shows that no other instrument was necessary to transfer the title of the plane than the one signed in blank by Gallaher.

After considering all of the evidence, both that substantiating the sale and that militating against it, we have concluded that we cannot say that the findings of the court in respect thereto are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellant contends that the court erred as a matter of law in finding that title to the airplane in question passed to appellant prior to the damage occurring to it. It is appellant’s contention that since the Federal Aviation Agency bill of sale was executed in blank by Gallaher and the name of the purchaser was never inserted, any passage of title to appellant must be by operation of law and not by delivery of any document of title. No document was essential to the passage of title as between the sellers and buyers. In 8 Am.Jur.2d, pp. 641-2, Aviation, Sec. 23, it is stated:

“The purpose of the provision requiring the recording of conveyances affecting title to airplanes has been said to be to protect persons who have dealt on the faith of the recorded title and as to whom it would be a fraud to give effect to unrecorded titles.”

As stated in Marsden v. Southern Flight Service, Inc., 1961, 227 F.Supp. 411:

“The Federal Aviation Registration Act makes provision for the recordation of conveyances affecting the title to, or interest in, civil aircraft of the United States, and provides that no such conveyance thereafter made or given shall be valid against any person other than the maker, or his heir or devisee, and any person having actual notice thereof, until so recorded.”

See 49 U.S.C.A., Sec. 1403(c); Bishop v. R. S. Evans East Point, Inc., 1949, 80 Ga.App. 324, 56 S.E.2d 134, 136; Marrs v. Barbeau, 1959, 336 Mass. 416, 146 N.E.2d 353; Smith v. Joliet Airmotive, Inc., 1962, 35 Ill.App.2d 2, 181 N.E.2d 817, 819.

Judgment affirmed.


author: RENFRO, Justice.

text:
    Dorothy TARVER, Appellant, v. ED C. SMITH & BRO., INC., Appellee.
    No. 16725.
    Court of Civil Appeals of Texas. Fort Worth.
    April 1, 1966.
    John A. Pace, Dallas, for appellant.
    Ewing Jones, Dallas, for appellee.
   RENFRO, Justice.

Plaintiff Ed C. Smith & Bro., Inc., brought suit against defendant Mrs. Dorothy Tarver, also known as Mrs. Chas. L. Tarver, Jr., on a written contract under the terms of which defendant agreed to pay plaintiff $1,322.50 for furnishing materials and conducting the funeral of Chas. L. Tar-ver, Jr.

Defendant was duly served with process but did not file an answer.

Default judgment was entered for plaintiff on April 28, 1965.

On April 30, 1965, defendant filed motion for new trial.

The motion set out prior dealings between defendant and the attorney who filed the motion for new trial. The motion alleged he had terminated his agreement with defendant on December 10, 1964. At a subsequent date he was reemployed as co-counsel with Mr. Mayer. It was alleged: “Subsequently, letters were written to the Defendant by Jules F. Mayer and John A. Pace with reference to conferences concerning the matters in which Mr. Mayer had been employed, the latest of which was on the 8th day of April, 1965-, requesting a meeting with the Defendant the middle of the week of April 19th, 1965, at a mutually convenient time.” It was further alleged that the attorney believed that a reply would be received with reference to the proposed conference, but no reply was received. It was further alleged that defendant had a valid defense in that she thought the Independent Executor had paid the debt to plaintiff.

It was not alleged that the matter of plaintiff’s debt was ever discussed in the letters written to her by her attorneys, and it was not alleged that plaintiff’s debt was one of “the matters in which Mr. Mayer had been employed.”

It was not alleged that plaintiff ever received any communication from defendant or her attorneys concerning its debt and suit against defendant.

There was no allegation that defendant delivered the citation to her attorneys or informed them of the suit.

The evidence introduced at the hearing on the motion for new trial was substantially the same as the allegations in the motion for new trial.

In addition, a letter dated July 18, 1962, written by the Executor of the estate of Chas. L. Tarver, Jr., was introduced, in which the Executor stated that the creditors of Charles L. Tarver had been paid “except two of them.” The two unpaid creditors were not identified.

The court found that Mr. Pace was not guilty of any negligence. He made no such finding as to defendant.

The motion for new trial was overruled, from which order defendant appealed.

It is well settled that the grant or denial of a new trial rests largely within the discretion of the trial court, and its discretion will not be disturbed on appeal except for manifest abuse of discretion. 41 Tex.Jur.2d pp. 29-31, § 3, and cases cited.

After a careful study of the entire record we have concluded that we cannot say the court abused its discretion.

Affirmed.


author: PHILLIPS, Justice.

text:
    Robert S. CALVERT et al., Appellants, v. UNION PRODUCING COMPANY, Appellee.
    No. 11398.
    Court of Civil Appeals of Texas. Austin.
    April 13, 1966.
    Rehearing Denied May 4, 1966.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., H. Grady Chandler, Gordon C. Cass, Kerns B. Taylor, Asst. Attys. Gen., Austin, for appellants.
    Vinsoii, Elkins, Weems & Searls, John C. Snodgrass, Houston, for appellee.
   PHILLIPS, Justice.

This appeal involves judgments in two causes tried upon a consolidated record. The two cases presented common issues of fact and of law. They involved the right of the State Comptroller to assess additional gas production taxes, penalties and interest pursuant to an audit made by them. The Texas gas production tax, Art. 3.01, Vernon’s Annotated Statutes, is fixed as a percentage (presently 7 per cent) of the “market value” of the gas at the wellhead. The taxing statute defines “market value” as the “producer’s gross cash receipts,” absent proof of fraud or collusion. The basis for the deficiency assessment fixed by the auditors was the same in ■ both cases; namely, that the seller of the gas, Union Producing Company, and the purchaser of the gas, United Gas Pipe Line Company, were affiliated companies, both being wholly owned by United Gas Corporation, and that in view of such affiliation the contract prices pursuant to which the sales were made should be set aside and disregarded for tax purposes. In the place of the contract prices, pursuant to which Union Producing Company had paid Texas production taxes, the State Auditor substituted contract prices contained in contracts between other third parties in the same fields from which Union’s gas was produced. These other contract prices were the highest prices which the Auditor could discover. Pursuant to the statutory scheme Union paid the deficiency assessments under protest and suits for recovery of the taxes, penalties and interest in the amounts of $1,452,584.73 and $14,798.13, respectively, were filed.

Upon order of the court the cases were consolidated and came on for trial on the 13th day of September, 1965. On the eve of the trial, September 10, 1965, appellant filed an amended answer in Cause No. 130,858 wherein the State admitted that the Auditor’s assessment of additional taxes, penalty and interest in the amount of $1,452,584.73 was excessive and should be reduced to the sum of $396,189.93. After the trial had commenced, and on the 13th day of September, 1965, the State filed an amended answer in Cause No. 116,312 and admitted that the Auditor’s assessment of additional taxes, penalty and interest in that case in the amount of $14,798.13 was also too high and should have been only $11,-027.15. In both actions the State admitted to error in the Auditor’s claim that the “market value” of Union’s gas should be established at the highest price set forth in any contract covering sales of gas from the various fields in question and substituted in lieu thereof its calculated “weighted average” selling price. This, according to the State’s amended pleadings, was the appropriate measure of the “market value” for the assessment of additional taxes, penalty and interest.

After the conclusion of the evidence and upon motion of the appellee, the trial court instructed the jury to return a verdict for the appellee as prayed and in view of the amended pleadings filed by the State, referred to above, the judgment recited that the State did not appeal from judgments in the two cases in the amount of $1,056,394.80 and $4,770.98 but did appeal as to the remaining amounts of $396,189.93 and $11,-027.15.

We affirm the judgment of the trial court.

The question before this Court is the adequacy of the State’s proof offered to show that the abovementioned contracts entered into between affiliated companies were fictional insofar as the consideration or price set therein is reflected, and were entered into for the purpose of enabling the producer to escape the payment of taxes due the State of Texas, which would have been otherwise due in a good faith transaction, free from collusion between the purchaser and producer of gas.

Appellant State is before this Court on five points of error, points one and five being briefed together, are the error of the trial court in holding, in effect, that the State, in taxing gas sales under Articles 3.01 and 3.02, Taxation General, is bound as a matter of law by “collusive” sales contracts for gas entered into between wholly-owned corporate affiliates of a parent gas company; the error of the trial court in instructing the jury and holding that plaintiff, a wholly-owned corporate affiliate of the parent gas company, proved as a matter of law that its gas sales to its corporate affiliate, which was also wholly-owned by the same or common parent gas company, and all of which corporations were operated as a single unified business enterprise under the domination and control of the parent, were bona fide, arms-length transactions, free of any fact issue involving “collusion,” said “collusion” being alleged by defendant State and upon which issue substantial circumstantial evidence was introduced as to the plaintiff’s unwritten agreement and course of conduct in fixing virtually all of its gas prices substantially below the weighted price average and market value and thereby operating the plaintiff affiliate at a loss each year, resulting in an admitted savings of State gas and other taxes each year as well as the writing off of and balancing of such losses against the profits of the buyer corporate affiliate and the parent company on their consolidated joint Federal income tax returns each year.

Inasmuch as appellants’ points two and three, briefed together, can be answered together with our consideration of points one and five we state them here.

Appellants’ point of error number two is that of the trial court in instructing a verdict and holding that under the evidence developed there was no fact question for the jury on the issue of “collusive sales” made between wholly-owned corporate facilities of a parent gas company; point of error number three is that of the court in instructing a verdict and holding that under the evidence developed there was no fact question for the jury on the issue of the market value of the gas sold by appellee and upon which the gas tax was due under Articles 3.01 and 3.02.

We overrule these points.

The definition of market value of gas has been stated by the Texas Supreme Court in W. R. Davis, Inc. v. State, 142 Tex. 637, 180 S.W.2d 429, as the price actually received by the producer. The Court further stated that such a price must be arrived at in good faith, free from fraud and collusion.

Appellee has paid the required tax on the basis of its sales to United Gas Pipe Line Company and any liability for additional taxes must be predicated upon a judgment reciting that such payment was made by virtue of contracts entered into through collusion and fraud and not in good faith, consequently setting a price to be paid that was fictional and arrived at for the purpose of fraud. It was the burden of the State to establish the facts of the lack of good faith, fraud and collusion by competent evidence and this they have failed to do.

The State makes the following statement in its brief as to its position here: “The sale of gas is no different from any other business. The free forces of competition, working in a free economy, will provide the atmosphere of good faith, arms length, bona fide contract, and will produce a price commensurate therewith and one which the State has no difficulty in accepting, but when other conditions exist, not in keeping with the above, the State should be free to use other means in determining the price upon which its very life depends — and herein lies the real issue in this law suit.”

The “other conditions” referred to are evidently the facts that the companies involved here are affiliated, consequently the State felt free to use “other means” in determining the price which consisted of: first, in ascertaining the highest price paid for gas in a given field and then ascribing this to the appellee as the market price of its gas and then after abandoning this it, secondly, computed a “weighted” average price for the gas in the fields involved and used this price as the market price ascribed to appellee.

The theories upon which the State based these maneuvers, may or may not have merit ; however they have no basis in law.

Returning to the question of good faith, fraud and collusion, the State refers to evidence of “the agreement or understanding existing in this case;” that evidence was introduced to the effect that in the Agua Dulce Field the portion of the gas produced and owned by royalty owners, normally the ⅛⅛ royalty interest, was priced at approximately that set by the Comptroller’s auditors, while the working interest, normally the ⅞⅛ interest, was priced at a much lower figure; evidence was elicited that United Gas Pipe Line Company, the transmission company, had a refusal on all of the gas produced by ap-pellee; evidence was introduced that the contract price of gas produced by appellee and purchased by United Gas Pipe Line Company was the lowest of all major producers for the period of 1948 to 1949; that evidence was elicited that appellee did not pay any income taxes, or if it did, such taxes were minor, during the major portion of the audit period; evidence was elicited that if appellee had received more money for its gas, it would have paid more gas production tax to the State; evidence was introduced that contracts were amended between appellee, the producer, and United Gas Pipe Line Company, the purchaser, covering large quantities of gas, and not upon terms that prevail in the original contracts; evidence was presented by appellants showing the weighted average price for gas in the same fields covered by the contracts and for the identical periods.

The appellee presented detailed evidence as to the manner in which its contracts for the sale of its gas were entered into. This evidence was that before United Gas Pipe Line Company would buy appel-lee’s gas, its policy was to go into the field in question, make contracts with other non-affiliated producers at arms-length, and then offer identical contracts to appellee. Further, evidence of these contracts was introduced. This is the only competent evidence adduced by either of the parties hereto relative to “the agreement or understanding existing in this case.” Here, appellee’s evidence was unrefuted. Appellants had nothing more to offer than innuendo or insinuation, consequently, there was no evidence to go to the jury on this issue upon which any valid inferences could have been drawn.

As to appellants’ evidence that royalty owners in the Agua Dulce Field received more for their royalty from appellee than appellee paid the owners of the working interest for the same gas, appellee introduced evidence to the effect that market value as used in an oil and gas lease has a different meaning from the definition of market value in the taxing statute before us, as defined by W. R. Davis, Inc. v. State, above. For the meaning of market value regarding an oil and gas lease see Foster et al. v. Atlantic Refining Company, 5 Cir., 329 F.2d 485.

As to the evidence on income taxes as related to the price paid for gas, the evidence disclosed that appellee and United Gas Pipe Line Company paid income taxes on a consolidated return and detailed evidence was presented by appellee to demonstrate that a higher tax paid to the State of Texas would have resulted in a net saving to both companies as their tax to the Federal Government would have been less. This evidence was unrefuted in any manner by appellants.

As to evidence that the contract price of gas produced by appellee and sold to United Gas Pipe Line Company was the lowest of all major producers for the period of 1948 to 1959, appellee presented evidence to show that the State’s own exhibit listing the average prices received by producers in Texas Railroad Commission’s District 2 shows, contrary to appellants’ claim that the price received by appellee was not the lowest of all major producers. This exhibit lists 164 producers with appellee ranked 102. The evidence further reflected without contradiction that at any point in time the price for similar gas in the field varied widely depending primarily upon the date of contract and conditions of delivery. Prices of gas moving under the older contracts were generally lower than under the newer contracts and gas which had been gathered and dehydrated commanded a higher price than gas at the wellhead. Evidence disclosed that the market values which the various taxpayers reported for sales from the Agua Dulce Field in 1955 to range from a high of 11.9030 to a low of 3.9840. In this instance the appellee’s tax was 7.1060. It is conceded by both parties that the major portion of this case concerns gas sales in the Agua Dulce Field.

As to appellants’ evidence that contracts were amended between appellee as producer and United Gas Pipe Line Company, the purchaser, covering large quantities of gas, not upon terms that prevail in the original contracts, appellee presented uncontradict-ed evidence that the failure to follow the contract terms referred to above was due to the fixing of prices by the Federal Power Commission. The prices in the Agua Dulce Field are fixed by the Federal Power Commission.

Appellants’ evidence regarding United Gas Pipe Line’s right of refusal of all of appellee’s gas, evidence that if appellee had received more money for its gas the State would have received a greater tax revenue and evidence showing the weighted average price for gas in the same fields covered by the contracts in question and for identical periods are not material here as elements of proof such as to constitute competent evidence in a case of fraud.

With respect to the weighted average, we likewise overrule appellants’ fourth point of error which is that of the court in refusing to permit the appellants to qualify one of their witnesses and to permit the witness to testify and give his opinion on the market value of the gas sold in the event the gas sales in question were deemed “collusive.” Such evidence was immaterial in the view that we take here.

Irrespective of the foregoing opinion, the following is, in the opinion of this Court, sufficient grounds to affirm this case. Appellants’ theory, in summary, is that since the contract prices entered into between appellee and its affiliates are unacceptable to the State, that acceptable prices would be the above-mentioned weighted averages. Appellee conclusively demonstrated that the weighted average prices offered by appellants were incorrect in that they were too high. The reason that the averages were too high was that certain volumes of gas in the field which were sold at prices less than the weighted averages were omitted. Obviously, this would make a substantial difference in the State’s claim. These averages were never amended so as to correct this error, consequently the State was unable to prove its damages with sufficient certainty to enable a jury to compute them. See Jordan v. Cartwright, Tex.Civ.App., 347 S.W.2d 799, no writ history.

Throughout appellants’ brief there is the inescapable suggestion that price fixing contracts, such as we have here, entered into between affiliated companies are, by their very nature, fraudulent. In oral argument before this Court the able assistant attorney general representing the appellants stated this proposition and asked this Court to declare prices fixed between such affiliates illegal. We reject this argument. See Standard Oil Co. v. United States, D.C., 63 F.Supp. 48.

We hold that for appellants to have rejected appellee’s contract prices and establish some other price it was incumbent upon it to show fraud, collusion and bad faith. While fraud may be proved by circumstantial evidence, mere conjecture, is not enough. Evidence that does not necessarily or naturally or reasonably tend to that conclusion is not sufficient. Fraud must be clearly established. See 26 Tex. Jur„2d, Sec. Ill, p. 78 and the cases there cited.

The evidence that appellants assert is sufficient to have sent this case to the jury is “so weak that it only raised a mere surmise or suspicion of the existence of some or all of the essential facts sought to be established, then it was the duty of the trial court to withdraw the case from the jury or to instruct the verdict. * * * Where circumstances are equally consistent with the existence and nonexistence of an ultimate fact sought to be established, such circumstances are wanting in probative force as any evidence tending to establish the existence of the ultimate fact.” South Texas Water Co. v. Bieri, Tex.Civ.App., 247 S.W.2d 268, writ ref., n. r. e.

We affirm the judgment of the trial court.

Affirmed.

      . “Art. 3.01 Calculation of Tax
      (1) There is hereby levied an occupation tax on the business or occupation of producing gas within this State, computed as follows:
      A tax shall be paid by each producer on the amount of gas produced and saved within this State equivalent to seven per cent (7%) of the market value thereof as and when produced.
      Provided, however, that the amount of the tax on sweet and sour gas shall never be less than 121/xsoo °f one cent (10) per one thousand (1,000) cubic feet.

        (2) In -calculating the tax herein levied, there shall be excluded: (a) gas injected into the earth in this State, unless sold for such purpose; (b) gas produced from oil wells with oil and lawfully vented or flared; and (c) gas used for lifting oil, unless sold for such purposes. Acts 1959, 56th Leg. 3rd C.S. p. 187, ch. 1. Art. 3.02 Market Value
      (1) The market value of gas produced in this State shall be the value thereof at the mouth of the well; however, in case gas is sold for cash only, the tax shall be computed on the producer’s gross cash receipts. Payments made by purchasers to producers for the purpose of reimbursing such producers for taxes due hereunder shall not be considered a part of the producer’s gross cash receipts. In all cases where the whole or a part of the consideration for the sale of gas is a portion of the products extracted from the producer’s gas or a portion of the residue gas, or both, the tax shall be computed on the gross value of all things of value received by the producer, including any bonus or premium; provided that notwithstanding any other provision herein to the contrary, where gas is processed for its liquid hydrocarbon content and the residue gas is returned by cycling methods, as distinguished from repressuring or pressure maintenance methods, to some gas producing formation, the taxable value of such gas shall be three-fifths (%) of the gross value of all liquids extracted, separated and saved from such gas, such value to be determined upon separation and extraction and prior to absorption, refining or processing of such hydrocarbons and such value prior to refining shall be the value of the highest posted price of crude oil in the field where said gas is produced or in the nearest oil field in the event no oil is .produced in said field and the quantity of the products shall be measured by the total yield of the processing plant from such gas.
      (2) All condensate recovered from gas shall be taxed at the same rate as oil and shall be valued for the purpose of computing the tax due thereon at the prevailing market price for condensate in the general area where the same is recovered. The term ‘condensate’ shall include all liquid hydrocarbons that are or can be recovered from gas by means of a separator but shall not include any liquid hydrocarbons which can only be recovered from gas by refrigeration or absorption and separated by a fractionating process.
      Where additional liquid hydrocarbons other than condensate are recovered from gas the taxable value of such additional liquid hydrocarbons shall be determined by deducting from the total receipts of the producer for all liquid hydrocarbons recovered from his gas the taxable value assigned to the condensate and the applicable rate set forth in sub-section (1) of Article 3.01 shall be applied to the difference to determine the tax due hereunder on such additional liquid hydrocarbons. Acts 1959, 56th Leg. 3rd C.S. p. 187, ch. 1.”


author: COLEMAN, Justice.

text:
    James WISE, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
    No. 14768.
    Court of Civil Appeals of Texas. Houston.
    April 14, 1966.
    Rehearing Denied May 5, 1966.
    Cattanach, Capps, Turner, Coe, Reardon, Chaney & Thorne, John R. Coe, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Jim M. Perdue, Houston, for appellee.
   COLEMAN, Justice.

This is a workmen’s compensation case wherein the trial court instructed a verdict for the defendant. The principal issue to be discussed is whether appellant was an employee of Houston Terminal Warehouse & Cold Storage Company.

Appellant was the only witness to testify in this case. He was employed by the driver of a truck loaded with frozen shrimp to assist him in unloading. The truck driver agreed to pay him $4.00 or $5.00 for the job. He accompanied the driver in the truck to the warehouse of Houston Terminal Warehouse & Cold Storage Company. Mr. Abron, an employee of the Warehouse, met them. He told them to put ten cases of the shrimp on each dolly. As appellant removed the loaded dolly from the truck to the warehouse platform, Abron showed him where to place it. On cross-examination he testified as follows:

Q (Mr. Perdue) Are you telling this jury, James, that over at the warehouse every time you brought out a load the receiving man was there and told you right where to put it? Is that what you are telling these folks?
A Yes, sir. He did.
Q Every load you brought out he showed you where to put it?
A Mr. Abron would come and show us where he wanted it put at. That is correct.
Q When you brought this out on the four wheeel dolly, did you bring the shrimp to another dolly and stack it there ? Is that the way it worked ?
A Yes, sir, because they were carrying it up to the cold storage.
Q Now listen carefully, James. Is it possible that the way you all were doing that that you were taking empty dollies up there in the van and loading them down with shrimp and pulled it down out of the truck and leave the dolly there, you had to go get another empty dolly and take it into the truck ?
A Yes, sir.
Q That is the way it was done?
A Yes, sir. That’s right. He would show us where to park the loaded dolly.
Q He would show you where to park the dolly ?
A Yes, sir.
Q The truth of the matter is he showed you where to park the dolly each time, the same place?
A Yes, sir, because he had to check it.
Q All he was doing was checking it as you pulled it out of the truck?
A Yes, sir.
Q He wasn’t showing you where to park it at, he just wanted to check to be sure you had it?
A No, sir. He was showing us where he wanted it.
Q To check it, wasn’t that what it was?
A To put it in line so he could check it.
Q To put it in line and that is all he told you to do, isn’t it?
A He was the receiving man.
Q And told you to put ten cases on the dolly, don’t put any more than ten? Is that right?
A We were working under his orders.
Q You are sure ten is all he told you to put on there?
A Until he overloaded me. Don’t put but ten on, he said.
Q They weighted ten (sic) pounds apiece ?
A That’s right.
Q That would be five hundred pounds on each load?
A That’s right.
Q That is the only thing that the receiving clerk told you out there, isn’t it? Those two things, don’t put any more than ten on each dolly and as it comes out of the truck stop it here so I can check it?
A That’s right.
Q That is all he did ?
A Then showed us where to drive it on, you know, push it on, and leave it, and then said, get another load.
Q I am not sure I understand. Do you mean he would check it and say pull it hack up a little ways, something like that?
A Sometimes he would say pull it further back in the warehouse.
Q Didn’t they have people working at the warehouse coming down getting these dollies?
A Transferring it upon on the elevator to the cold storage.
Q Taking it up to the freezer?
A That’s right.

Finally he was instructed to put more than ten cases on a dolly. As he was pulling the dolly from the van down an inclined ramp to the warehouse platform, and the driver was pushing, the dolly got out of control. It ran over appellant’s foot and pinned him against a large pillar which supported the roof of the warehouse, causing disabling injuries. He was unable to continue work, and testified that Abron told him that he should see a doctor, and that the truck driver said that he didn’t know any doctors here (the trucking company was based in San Antonio, Texas). He sat down until the unloading was completed and saw the driver go into the office and get something from Abron. When he came out he had four one dollar bills in his hand and gave it to him. The truck driver had told him on the ride to the warehouse that he didn’t have any money, but that he would see that he got his money.

Appellant contends that the evidence above summarized brings him within the definition of “employee” found in Article 8309, Sec. 1, Vernon’s Ann.Civ.St.: “An employee is a person in the service of another under any contract of hire, express or implied, oral or written, * * * ”

Since an instructed verdict was granted, we must treat as true the evidence favorable to the claimant, and indulge all reasonable inferences therefrom in his favor. Fowler v. Texas Employers Insurance Association, Tex.Civ.App., 237 S.W.2d 373, writ ref. Since all of the testimony was that of appellant, we accept his final version in case of inconsistency.

An employee in the general employment of one employer may be temporarily loaned to another so as to become a special employee of the second employer. Mercury Life and Health Company v. De Leon, Tex.Civ.App., 314 S.W.2d 402, error ref., n. r. e.

In case of an accident to the employee under these circumstances, that employer is to be held responsible in whom the right of control was lodged at the time of the accident, that is the right to direct not merely the end to be accomplished but also the means and details of its accomplishment. Security Union Insurance Company v. McLeod, Tex.Com.App., 1931, 36 S.W.2d 449; Standard Accident Insurance Company v. Arnold, Tex.Civ.App., 1927, 1 S.W.2d 434.

Serious consideration must be given to the consequences of a holding that the employees of a trucking concern delivering wares and merchandise to another become loaned employees of that person merely because the person receiving the goods gives directions to the employees unloading the truck to facilitate his checking the quality and quantity of the goods delivered. While an inference that the driver got the money to pay his helper from the warehouse employee may be drawn from the evidence, this has little, if any, significance. Appellant knew that he was working for the truck driver and knew that the driver was not employed by the warehouse company, and he was looking to the driver for his pay.

In a case where the question was whether the injured man was an employee or an independent contractor (Industrial Indemnity Exchange v. Southard, 138 Tex. 531, 160 S.W.2d 905), the Supreme Court of Texas said:

“Under the undisputed facts, it is quite obvious that it was necessary for the Lumber Company to exercise some supervision over the loading and unloading of the trucks, if the hauling of the logs was to be done efficiently and expeditiously. If this had not been done, much danger and confusion would have been the inevitable result. * * * The courts of this State have repeatedly held that an employer has the right to exercise such control over an independent contractor as is necessary to secure the performance of the contract according to its terms, in order to accomplish the results contemplated by the parties in making the contract, without thereby creating such contractor an employee of such company.”

In Mercury Life and Health Company v. De Leon, Tex.Civ.App., 1958, 314 S.W.2d 402, writ ref., n. r. e., the court said:

“An employee in the general employment of one employer may be temporarily loaned to another so as to become a special employee of the second employer. It is held, however, that even though an employee may be subject to the direction of a temporary master no new relationship of employment is created, if, in following the directions of the temporary master, he is doing so merely in obedience to the direction of and in the performance of his duty to his employer.”

Comment b of Section 227 of the Restatement of Agency 2d reads:

“In the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted the division of control, he has surrendered it.”

When appellant was injured the work he was doing was within the normal scope of the business of the trucking concern. He was subject to the control of the truck driver, who hired him, had the right to fire him, and paid him for the work he did. There is no material issue of fact raised by the evidence and the directed verdict was proper. Hilgenberg v. Elam, 1946, 145 Tex. 437, 198 S.W.2d 94; Denton v. Yazoo & M. Valley R. Co., 284 U.S. 305; Manning v. Texas Employers Ins. Ass’n, Tex.Civ.App., 1933, 67 S.W.2d 389; Texas Employer’s Ins. Ass’n v. Neely, Tex.Civ.App., 1945, 189 S.W.2d 626.

The motion for a directed verdict was dictated to the court reporter at the conclusion of plaintiff’s case. The statement of facts reflects that there was a short argument by counsel before the court sustained the motion, but does not contain an objection to the motion on the ground that it was not in writing. Rule 268, Texas Rules of Civil Procedure, requires such a motion to state the grounds thereof, but does not require that it be in writing. This Court is without authority to add additional requirements to the rule. Since the motion appears in the statement of facts and it states the grounds therefor, no harm could have resulted from the fact that the motion was not presented in writing.

The judgment of the trial court is affirmed.


text:
    SEAFARERS’ WELFARE PLAN, Appellant, v. GEORGE E. LIGHT BOAT STORAGE, INC., Appellee.
    No. 14756.
    Court of Civil Appeals of Texas. Houston.
    April 14, 1966.
    Rehearing Denied May 5, 1966.

      Newton B. Schwartz, Houston, for appellant.
    Robert R. Breaker, La Porte, for ap-pellee.
   WERLEIN, Justice.

This suit was brought by appellant, Seafarers’ Welfare Plan, against George E. Light Boat Storage, Inc., appellee, on an alleged sworn account. Appellant pleaded that appellee employed persons in its business and that it had theretofore contractually agreed to pay to appellant the sum of $6,896.91 as set forth in the exhibit attached to its petition, and that appellee had promised and contracted to pay appellant a daily sum of money for each day each of its employees performed labor and services and worked for appellee, together with attorney’s fees. Trial was to the court without a jury and judgment was rendered that appellant take nothing.

Appellant’s petition does not state what Seafarers’ Welfare Plan is, but its attorney testified that it was an unincorporated association under New York law, and that one Paul Drozak was a trustee thereof. Said attorney also testified that he was the attorney for appellant and for Seafarers’ International Union of North America, Atlantic, Gulf, Lakes and Inland, AFL-CIO, and that he had known Drozak personally since 1962 when he became agent for appellant and also Seafarers’ International Union, and the Inland Boatmen’s Union, for Texas, and that he recognized Mr. Drozak’s signature on plaintiff’s exhibits 1, 1-A and 3.

At the request of appellant, the court made its findings of fact and conclusions of law. The court found that appellant had failed to show by a preponderance of the evidence any contractual relationship between it and appellee, and concluded that as a matter of law appellee was not indebted to appellant in any amount.

Appellant first complains that the trial court erred in holding that appellant’s cause of action is not governed by federal law under the National Labor Relations Act, but by the Texas Business Corporation Act, V.A.T.S., and Texas rules of contract law. The court after making certain additional findings of fact and conclusions of law of a negative nature, which need not be set out in this opinion, concluded that appellant’s cause of action is of such character that the federal National Labor Relations Act would be relevant, but not to the exclusion of the Texas Business Corporation Act nor the rules of contract law.

Appellant asserts in its brief that its suit was brought not only on a sworn account but also on a collective bargaining contract between appellee, appellant and the Inland Boatmen’s Union of the Seafarers’ International Union, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, to recover payments due and owing to appellant during the period from September, 1963 to May 31, 1965. We find no reference in appellant’s petition to said Union, which may be referred to herein for brevity as SIU. It is not a party to this suit. Appellant’s Exhibit No. 1 appears to be a collective bargaining agreement between SIU and appellee. This agreement is dated March 1, 1962, and appears to have been signed and executed for SIU by Paul Drozak. It is not shown in what capacity he executed such agreement. The agreement also appears to have been executed by appellee with Joe B. Light’s signature under its typed name. It is not shown in what capacity Joe B. Light signed. The evidence shows, however, that during the year 1962 Joe B. Light was a vice president of appellee.

Attached to appellant’s Exhibit No. 1 is a form of agreement between appellee, SIU and the Board of Trustees of the Seafarers’ Welfare Plan. It appears to be a separate form of agreement, and it was also separately introduced in evidence by appellant as its Exhibit No. 3. It provides that the present contribution to the plan will be $1.75 per day per employee for employment after March 1, 1962, and provides that the Seafarers’ Welfare Plan trustees are authorized to create a pension fund, and to include an allocation of the total contribution to Seafarers’ Welfare Plan between the Welfare Fund and the Pension Fund, and that the trustees of the Seafarers’ Welfare Plan are further authorized to amend the trust agreement of Seafarers’ Welfare Plan to conform with the trust agreement associated with the Seafarers’ Pension Fund to any current collective bargaining agreement, and further states that each signatory company shall make a contribution to the Seafarers’ Welfare Plan and that the trustees thereof will allocate a portion thereof to the Seafarers’ Welfare Fund and a portion to the Seafarers’ Pension Fund as they deem advisable. This instrument is dated May 2, 1962. It appears to have been executed for SIU by Paul Drozak, Agent. The other name appearing thereon is George E. Light Boat Stg., Inc., by Joe B. Light, vice president and secretary. The evidence shows that Joe B. Light was not the secretary of appellee. The name “Seafarers’ Welfare Plan” is also typed on this instrument but it has not been signed or executed by Seafarers’ Welfare Plan. No explanation is given by appellant as to why Seafarers’ Welfare Plan did not execute the instrument.

Drozak signed for the Union the collective bargaining agreement between SIU and appellee, which was entered into on March 1, 1962, and he also signed for the Union the one-page instrument dated May 2, 1962, appellant’s Exhibit No. 3, designating himself as Agent for the SIU, although he did not state in what capacity he signed the collective bargaining agreement. He also appears to have signed as of February 7, 1964 for SIU an agreement which appears to have been signed on February 26, 1964 by appellee by its president, George E. Light. This instrument, which undertakes to change the contributions to the Seafarers’ Welfare Plan to $1.95 per day per employee for employment after March 1, 1964, was not signed or executed by appellant. The trial court found as a fact that appellant failed to show by a preponderance of the evidence any contractual relationship between it and appellee, and hence the court concluded as a matter of law that appellee was not indebted to appellant in any amount. Appellant sued and relied upon a contract between it and appellee to establish that the amount sued for was due it from appellee. It failed to meet the burden of establishing that there was such contract. It failed, therefore, to establish any basis for its alleged sworn account and claim, even assuming that such unitemized claim could be considered a sworn account. We cannot say that the trial court erred in his finding of fact.

It should be noted here that appellant failed to obtain the testimony of Drozak either in person or by deposition, and failed to introduce any evidence that there was any oral or written agreement between the three parties which was entered into by them all. It merely introduced in evidence a one-page incomplete agreement which was not executed by Seafarers’ Welfare Plan. Drozak, who signed the agreement for the Union as its alleged agent, was not present at the trial, and, as stated, did not testify. There is nothing to show that there was any oral agreement between the parties prior to the incomplete written form of agreement. There is no evidence that appellant consented to the terms of the written agreement which it did not execute, nor that there was any meeting of the minds of the three parties involved or any promise or obligation mutually binding on all three of them to do anything. Appellant complains that the court’s finding is not supported by any evidence and also that such finding is against the great weight and preponderance of the evidence. It is our view that there is evidence which supports the court’s finding. We have read the entire statement of facts. We are unable to say that the court’s finding is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellant’s pleading is very general and indefinite with respect to any contract entered into by anybody. It has merely alleged that appellee employed persons and had theretofore contractually agreed to pay to Seafarers’ Welfare Plan the sum of money set forth in its exhibit. Appellant has not pleaded ratification with respect to any contract although in its argument before this Court it undertook to assert that even if the contract was incomplete it was consented to and ratified. The law is well settled that a void contract is no contract at all and cannot be ratified, and that it binds no one and is a mere nullity. 17 Am.Jur.2d, p. 342, Contracts, Sec. 7, and authorities cited. A fortiori, ratification cannot make a contract out of what is no contract at all

Furthermore, it is our view that the evidence does not support ratification of such contract even.if it were capable of being ratified. Appellant introduced a letter, its Exhibit No. 5, addressed by appellee’s office manager, C. B. Henry, to Seafarers’ International Union, in Brooklyn, New York, dated July 13, 1962, enclosing a check in the sum of $608.40 to cover amount due for welfare fund for certain named employees who had worked a certain number of days during May and June, 1962. This check was not paid to Seafarers’ Welfare Plan but to the Union, although it states it is to cover the amount due for Welfare Fund. There is nothing in the record to show that such money was turned over to Seafarers’ Welfare Plan by the Union or that such amount was accepted by appellant. But even if we assume that the Union did turn the amount over to the Welfare Fund, and if we further assume that the Welfare Fund is the same and identical party as Seafarers’ Welfare Plan, such payment would not constitute the execution by ap-pellee of a new contract nor would it create an obligation on the part of appellee to make such payments in the future. It has been held that payment by councils of a borough, for some years, for water actually furnished under a void contract creates no contract to accept and pay for it in the future. Milford v. Milford Water Company, 124 Pa. 610, 17 A. 185, 3 L.R.A. 122. It is our view that the same rule of law would apply in case of payments made when there is no contract whatever.

Appellant in its brief has several assignments complaining that the court erred in finding that George E. Light had no implied or apparent authority to negotiate and execute the collective bargaining agreement with appellant. The evidence shows that George E. Light did not sign any collective bargaining agreement. The only collective bargaining agreement in the record is that between the Union and appellee, which was executed by Drozak for the Union and by Joe B. Light for appellee. Appellee asserts, however, that Joe B. Light had no authority from the board of directors of the company to execute the collective bargaining agreement. It is our view that it is not necessary for this Court to determine whether or not there was a valid collective bargaining agreement entered into by the Union and appellee. Appellant was not a party to the collective bargaining agreement and as stated there was no collective bargaining agreement between appellant and appellee. Appellant in its petition does not set out or rely upon any collective bargaining agreement to which it was a party. Moreover, the only collective bargaining agreement in the record makes no reference to or provision for the Seafarers’ Welfare Plan.

Mr. George Light, who was subpoenaed to bring to court the payroll records of all appellee’s employees with a schedule prepared by appellee’s attorney summarizing the names of such employees and the days they worked for the period from September 1, 1963 through February, 1965, testified that Plaintiff’s Exhibits 4 and 4 — A were prepared by said attorney with the full use and assistance of the payroll records, which were voluminous, and he would say that they accurately showed the names of the employees and the days they worked. Said exhibits were introduced in evidence. Appellee’s attorney testified that said exhibits show the number of days that each employee worked for appellee during such period, “and the total man-days at the end of each month, and then, daily welfare rate is computed on the basis of what I have been told contracts said.”

Appellant contends that Exhibits 4 and 4-A constitute an admission by appellee that it owed appellant the amount shown in such exhibits. The exhibits were prepared in connection with the subpoena issued to Mr. Light to produce the company’s records and summarized statement showing the names of its employees and the number of hours they worked. The number of days was apparently multiplied by the rate shown on the one-page incomplete forms of agreement in order to show the total amount that would be due under the agreements which had not been executed by appellant and the validity of which was denied by appellee. The exhibits, however, do not show that any amount was due Seafarers’ Welfare Plan for such period of time. It is true that at the foot of Exhibit 4 it is shown the total man-days and total welfare dollars arrived at by multiplying the number of days by the welfare rate stated in Exhibits 1-A and 3. There is shown at the foot of Exhibit 4-A a similar calculation for the period from September 1, 1963 through February 28, 1965, and the total due “Welfare Fund” in the amount of $4,671.30.

This Court has no way of knowing what the so-called Welfare Fund is. As stated, these exhibits do not show that any amount is due Seafarers’ Welfare Plan. The record shows that the Welfare Fund is not the same as the Seafarers’ Welfare Plan since the one-page incomplete agreements show that the Seafarers’ Welfare Plan can allocate certain funds to the Seafarers’ Welfare Fund and a portion to the Seafarers’ Pension Fund.

It is our view that these exhibits do not constitute an admission on the part of appellee that anything was due appellant, Seafarers’ Welfare Plan. Appellee’s obedience to the subpoena in producing the exhibits which merely show the names of employees and the days they worked, with such man-days multiplied by the rate shown in the incomplete contracts, with total due Welfare Fund, fails to show any amount due Seafarers’ Welfare Plan, an entirely different entity. There is further confusion in the record in that it appears that appellant made a request for additional findings of fact and conclusions of law by the court, but such request is not included in the transcript, and we have no means of knowing what appellant did request other than what we may presume in some instances from the negative findings and conclusions of the court. The court dues state, however, in its findings that appellant’s Requests Nos. 8 and 9 have asked for a consideration by the court in a matter that is evidentiary and not an ultimate issue of fact. We do not know what evidence the court refers to since the requests are not of record. Under these circumstances, it is impossible for this Court to say that the trial court’s finding and conclusion that appellee is not indebted to appellant in any amount, is not supported by evidence; nor can we say that such finding and conclusion is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. We, therefore, affirm the judgment of the Trial Court.

Affirmed.

On Motion for Rehearing

We have carefully considered appellant’s motion for rehearing and the supplemental transcript containing its request for additional findings of fact and conclusions of law by the trial court, which transcript by permission of this Court was filed subsequent to handing down the foregoing opinion. Such request for additional findings of fact and conclusions of law, and the court’s findings and conclusions in response thereto, do not throw any additional light upon the.case, nor do they in any way affect our holding.

Appellant’s motion for rehearing is overruled.