author: COLLINGS, Justice.

text:
    TOM BROWN DRILLING COMPANY et al., Appellants, v. Emil NIEMAN, Appellee.
    No. 4165.
    Court of Civil Appeals of Texas. Eastland.
    July 21, 1967.
    Rehearing Denied Aug. 25, 1967.

      Little & Little, James Little, Big Spring, for appellants.
    Huffaker & Green, Harold Green, Taho-ka, for appellee.
   COLLINGS, Justice.

Emil Nieman, individually and as next friend of his grandson, Vernon Lee Bran-nan, a minor, brought this suit against Tom Brown Drilling Company, a corporation, and Gurld D. O’Neal seeking damages for the wrongful deaths of Elisa Nieman and Virgie L. Brannan. Elisa Nieman was the wife of Emil Nieman and Mrs. Brannan was the mother of the minor plaintiff, Vernon Lee Brannan. The case was tried before a jury and, based upon the verdict, judgment was rendered in favor of the plaintiffs. The defendants have appealed.

The deaths of the two women resulted from the collision of an automobile driven by Mrs. Brannan, in which Mrs. Nieman was a passenger, and a truck-trailer owned by Tom Brown Drilling Company and operated by its employee, Gurld D. O’Neal. The accident occurred on March 15, 1966, at about 8:15 p.m. The weather was clear at the time but it was dark. The vehicles involved were a 1964 Buick Wildcat and appellant’s truck pulling a semi-trailer used for hauling oil field machinery. Just prior to the accident, Mrs. Brannan was travel-ling north on Highway 87 about ten miles north of Lamesa in Dawson County. Highway 87 is a four lane divided highway running generally in a northerly and southerly direction. The place of collision was at the intersection of such Highway and F-M 1210, which is a farm-to-market road running generally east and west. There was a stop sign in place at the intersection regulating west bound traffic on F-M 1210, and east of the intersection was a sign reminding travelers that there was a stop sign ahead.

The jury found the truck driver, O’Neal, guilty of several acts of negligence and found that each of such negligent acts was a proximate cause of the collision. Specifically, the jury found that O’Neal failed to keep a proper lookout, was driving his truck-tractor at a greater rate of speed than a person of ordinary care and prudence would have operated it, that he failed to stop the truck-tractor before entering the intersection in question, that he failed to yield the right of way to the automobile being driven by Mrs. Brannan, that he failed to timely and properly apply the brakes on his motor vehicle and that he failed to change the course of the truck-tractor and trailer so as to avoid the collision. Each of such acts was as a matter of law, or found to be negligence and was found to be a proximate cause of the collision in question.

In connection with special issue number 4 which inquired concerning the failure of O’Neal to yield the right of way, the following instruction was given to the jury:

“In connection with the above Special Issue, you are instructed that the driver of a vehicle shall stop his vehicle in obedience to a stop sign that is erected at an entrance to an intersection, and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection, or approaching so closely as to constitute an immediate hazard.”

The existence and sufficiency of the evidence to support the above findings are not questioned.

The jury also found that Mrs. Brannan failed to apply her brakes in time to avoid a collision but that such failure was not negligence, that she failed to keep a proper lookout, operated her automobile at a rate of speed in excess of 65 miles per hour and that such excessive speed on the occasion in question was negligence, but found that such failure to keep a proper lookout and excessive speed did not constitute proximate causes of the collision.

The court’s charge contained the following instruction preliminary to any of the special issues:

“You are instructed that the driver of a vehicle shall stop in obedience to a stop sign at the entrance to a through highway, and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway, or which are approaching so closely on said through highway as to constitute an immediate hazard. You are instructed that by the term ‘through highway’ as used in this charge means every highway or portion thereof, at the entrances to which vehicular traffic from intersecting highways is required by law to stop before entering or crossing the same, and when stop signs have been erected at such intersection.”

In appellants’ first point it is contended that the court erred in so charging and instructing the jury over appellants’ objections. The objections made to such instruction were as follows:

“This instruction in the Charge amounts to a comment on the weight of the evidence, in view of the fact that the jury is instructed to the law with reference to stop signs in the Court’s right-of-way issue, which is Special Issue No. 4, and unduly emphasizes the importance of the stop sign in connection with the accident made the subject of this suit.”

Appellants do not contend that the instruction given is not a correct statement of the law, but assert that the giving of the instruction was wholly unnecessary to explain the issues submitted. Appellants point out that in connection with the right of way issue the jury was instructed that the driver of a vehicle shall stop in obedience to a stop sign and proceed cautiously, yielding to vehicles in the intersecting highway not so obligated to stop. Appellants contend that the preliminary general instruction complained of could only serve to unduly emphasize in the minds of the jury the importance of the stop sign, when defendants have in no way contested the fact that the stop sign was there and that O’Neal did not stop in compliance therewith.

We are of the opinion that there was no error in giving the instruction complained of and in any event no reversible error. The instruction did not bear upon the credibility or effect of the evidence and was not a comment on the weight of the evidence. Traders and General Insurance Company v. Davis, 209 S.W.2d 963 (Tex.Civ.App.1947 NRE). There was no instruction that appellants were guilty of negligence as was the case in Boaz v. White’s Auto Stores, 141 Tex. 366, 172 S.W.2d 481 (1943). There was no sharp conflict in the evidence concerning appellants’ negligence proximately causing the accident and resulting injuries as there was in Levermann v. Cartail, 393 S.W.2d 931 (Tex.Civ.App.1965 NRE). Even if it should be held that it was error to give the instruction complained of, it was harmless error because O’Neal was found guilty of several other acts of negligence, eách of which proximately caused the tragedy, and amply supports the judgment. Dallas Railway and Terminal Company v. Orr, 210 S.W.2d 863 (Tex.Civ.App.1948), affirmed 147 Tex. 383, 215 S.W.2d 863 (1948); Frasier v. Pierce, 398 S.W.2d 955 (Tex.Civ.App.1965 NRE).

Special issue number 11 inquired concerning the damages sustained by Mr. Nieman as a result of the death of his wife. In connection with' such issue the court gave the following instruction:

“In answering the above Special Issue you are instructed that you will only take into consideration the value, if any, of the pecuniary loss, if any, to Emil Nieman by way of contributions, if any, services, counsel and advice, if any, as he may have in reasonable probability expected to receive from his deceased wife, Elisa Nieman, during his lifetime, had she lived. You must not take into consideration the grief, sorrow, mental pain, or anguish, if any, of Emil Nieman over the loss of his wife, nor the loss of her society, companionship or affection, if any, to him in arriving at your answer.”

Appellants objected to special issue number 11 and the accompanying instruction because the jury was not advised that they should consider only the pecuniary loss to Mr. Nieman after deducting therefrom the costs and expenses he would have expended for his wife’s maintenance and support had she continued to live. Appellants submitted to the court their requested instruction number 1 so advising the jury. The requested instruction and objections to the charge were refused and overruled and appellants urge that such action constitutes reversible error. These points are not well taken and are overruled. Lane v. Community Natural Gas Company, 134 Tex. 255, 134 S.W.2d 1058 (1940); Chesshir v. Nall, 218 S.W.2d 248 (Tex.Civ.App.1949 NRE).

In several points appellants complain of the court’s refusal to include in the charge requested issues inquiring if Mrs. Brannan and Mrs. Nieman failed to fasten their seat belts, if such failure was negligence and was a proximate cause of their deaths.

There is no statute in Texas requiring an occupant of an automobile being operated on a public highway to use available seat belts. The duty, if any, in such cases must arise from common law responsibility. There is no Texas authority on the question of such a common law duty. Cases involving the question in other states are in conflict. See Brown v. Kendrick, 192 So.2d 49 (Fla.App.); Lipscomb v. Diamiani, 226 A.2d 914 (Delaware Superior Ct.1967) which hold it proper to refuse to allow a defendant to offer evidence of plaintiff’s failure to use an available seat belt. See also Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626; Sams v. Sams, 247 S.C. 467, 148 S.E.2d 154, and Kavanaugh v. Butorac, 221 N.E.2d 824 (Ind.App.), which indicate that the failure of a plaintiff to use an available seat belt may bar recovery where the injury would have been avoided by the fastening of such safety device. It is not necessary for us to decide which line of authority should be followed in Texas, because even in Bentzler v. Braun and other cases relied upon by appellants it is held that in order for a defendant to be entitled to the submission of such special issues the evidence must support such a submission, and it must be shown by probative evidence that there is a causal relationship between the injuries sustained and the failure to use seat belts. In the instant case there was no evidence by expert witnesses or otherwise that Mrs. Brannan or Mrs. Nie-man would not have died as a result of the accident if they had been using their seat belts. The court properly refused to submit such issues and appellants’ points urging that such refusal was error are overruled.

Based. upon the verdict, judgment was rendered awarding Emil Nieman $18,000.00 for the loss sustained by reason of the death of his wife and $35,000.00 was awarded for the loss sustained by the minor, Vernon Lee Brannan, by reason of the death of his mother. Appellants urge that the court erred in refusing to grant their motion for a new trial because there was no evidence and insufficient evidence to sustain the jury findings on the damage issues and that such findings are against the overwhelming weight and preponderance of the evidence.

The record shows that Mrs. Nieman was 68 years of age at the time of her death and Emil Nieman was 72. They were married in 1916, had been husband and wife ever since, and neither had been married before. Mrs. Nieman’s health was good except for arthritis, and she was a reasonably physically able person. The Niemans had a 200 acre farm which they used for the production of cotton and feed. They also usually kept approximately 1000 laying hens from which they sold eggs. The evidence indicated that Mrs. Nieman was able to do and did about everything that there was to do on the farm. She took care of a big yard, a garden, did the housework and laundry, helped take care of the chickens and the eggs and anything else that was needed to be done. She gathered the eggs twice each day and cleaned them up, graded, sorted and packaged them and assisted Mr. Nieman in feeding and watering the chickens. She did her own laundry every week as well as the housework and was an efficient housewife. She also counselled and advised with her husband concerning operation of their farm.

It is difficult to determine the amount in dollars and cents which will compensate a man for the death of his wife. In the instant case much of the service rendered by Mrs. Nieman was of a nature that the loss thereof can be estimated in dollars and cents, but her loss to the home is not limited to any such fixed standard. As stated in Gainesville H & W Ry. Company v. Lacy, 86 Tex. 244, 24 S.W. 269,

“The wife’s labor, while equally valuable to the community, does not command a price in the market, and therefore cannot be proved by experts, as can that of the husband.”

The determination of the question is ordinarily for the jury. In this connection it is stated as follows in 33 Tex.Jur., page 144:

“Nor need the value of the wife’s services be shown by specific proof with any mathematical accuracy, or in dollars and cents. ‘Services’, when applied to the function of a wife, are not measured by any fixed or conventional standard of value; their value may be ascertained by a jury from their common knowledge based upon the ‘aid, assistance, comfort, and society the wife would be expected to render to or bestow upon her husband’ in the circumstances in which they may be placed.”

There was evidence and sufficient evidence in the record, as above briefly summarized, to sustain the finding of the jury concerning the loss sustained by Emil Nieman by reason of the death of his wife, and such finding is not against the great weight and preponderance of the evidence. The holdings and principles announced in the following cases in our opinion tend to support the award of damages to Mr. Nieman for the loss of his wife: Finck Cigar Company v. Campbell, 114 S.W.2d 348 (CCA 1938, affirmed 134 Tex. 250, 133 S.W.2d 759, 1939) ; Dallas Railway and Terminal Company v. Bishop, 203 S.W.2d 651 (CCA 1947 NRE); Texas & N. O. Ry. Company v. Hart, 294 S.W. 978 (Tex.Civ.App.1927 Writ Ref.).

The record shows that Vernon Lee Brannan was 14 years, 3½ months of age at the time his mother was killed on March 15, 1966. There was testimony to the effect that Vernon was a little slow to learn in school. In reading he was about on the level of the fifth grade but was on the level of the eighth grade in industrial arts. He is apt in working with his hands and has a talent in working with wood. His teacher who teaches children with minimal brain disfunction in a Lubbock public school testified that she considered Vernon a child of average intelligence range with a learning difficulty. Vernon’s mother and father were divorced at the time Miss Bateman, the teacher in question, received him as a pupil. The evidence indicates that Vernon’s mother cared for him as an ordinary prudent mother would; that she was a good housekeeper and had established a home for Vernon after her divorce; that she was a dutiful mother; that the mother-son relationship was good; that she carefully watched after his well being, taught him the ordinary things a mother teaches a child and was patient and kind in her dealings with him. The evidence indicated that Vernon required extra attention with his studies and that his mother sat up late at night to help and teach him; that she gave him good moral training, teaching him what was right, to respect other people and how to get along with others; that she did everything a mother could do for her child in the way of attention, feeding, clothing and caring for him and furnishing and keeping a good home. There was evidence to the effect that because of his minimal brain disfunction Vernon needs more guidance than a normal child; that such a child needs more encouragement, watching over and moral ■ guidance through their life in making decisions; that the needs of such a child continue for a long time and that Vernon will need guidance on how to spend his money and what he should do with it after he is out of school and working; that Vernon needs constant reminders to stay at his work and the type of discipline that goes with the necessity for such reminders.

The record shows that Mrs. Brannan was 35 years old at the time of her death on March 15, 1966. She and her husband were divorced on October 8, 1965, and her husband paid $60.00 per month for child support. The record further shows that both before and after the divorce Mrs. Brannan had been doing seasonal work at a cotton classing office; that such work was for an approximate four month period of the year and that during the time she was so employed she earned approximately $80.00 per week; that she had been engaged in such seasonal work for about a month just prior to the time of her accidental death. The record also indicates that she had started a course of training to qualify herself to work as a ticket agent or substitute hostess for airlines in order to better her financial position.

In summary, the evidence in our opinion indicates that Vernon Lee Brannan is not normal in all respects and as a result thereof needs more than ordinary parental care, and that he has been deprived of the needed care, counsel, guidance, education and training that his mother would in all probability have rendered to him both during his minority and thereafter as long as his mother lived. It is also difficult to determine in dollars and cents the amount which would compensate a son for the loss of his mother. Appellants point out that life expectancy tables were not introduced. Such proof, however, is not necessary. Louisiana & A. Ry. Co. v. Chapin, 225 S.W.2d 614 (Tex.Civ.App.1949 writ ref.). In the Chapin case the court in discussing the rule in such cases stated as follows:

“The statute in such cases provides that for wrongful injuries resulting in death ‘the jury may give such damages as they think proportionate to the injury resulting from such death.’ Art. 4677, R.S. The difficulties of proof in such matters are well known to the legal profession. No rule is prescribed for making the calculations. Exact ascertainment is obviously not possible. Juries from their own knowledge, experience and sense of justice are called upon to fix the compensation with reference as far as possible to conditions existing at the time of death. They are not to be influenced by passion or prejudice. The jury’s estimate is not defined, but any estimate of the court is likewise undefined. The judgment of the jury is as good as that of the court, and it should prevail unless it appears that the verdict is influenced by passion or prejudice and is not the result of honest convictions.”

In 17 Texas Jur.2d 408, it is stated that:

“In an action to recover damages in which the law furnishes no precise legal measure for their recovery, and they are unliquidated, the amount to be awarded rests primarily within the discretion of the jury, and unless the award is so large as to indicate that it was the result of passion, prejudice, partiality, or corruption, or that the evidence had been disregarded, the verdict of the jury is conclusive and will not be set aside as excessive, either by the trial court or on appeal.
The enlightened, conscientious, and fair judgment of a jury, in the light of the evidence, is constituted the sovereign test of a proper award of damages.”

From an examination of the evidence we are unable to say that the award of $35,-000.00 to Vernon Lee Brannan is so large as to indicate that it was the result of passion, prejudice, partiality or corruption, or that the evidence has been disregarded. In addition to the authorities above cited, the following cases in our opinion tend to support the award of damages to Vernon Lee Brannan because of the loss of his mother. Houston Gas & Fuel Company v. Perry, 55 S.W.2d 901 (Tex.Civ.App.1932, affirmed 127 Tex. 102, 91 S.W.2d 1052, 1936); Texas Consolidated Transportation Company v. Eubanks, 340 S.W.2d 830 (Tex.Civ.App. 1960 NRE), in which an award of $37,500.00 to a 13 year old daughter was found not to be excessive; Missouri Pacific Railroad Company v. Rose, 385 S.W.2d 492 (Tex.Civ.App.1964 NRE), in which an award of $130,000.00 to an 8 year old girl as damages for the death of both her parents was held not to be excessive; Continental Bus System, Inc. v. Toombs, 325 S.W.2d 153 (Tex.Civ.App. 1959 NRE), in which a reduced award of $30,000.00 to a 12 year old boy was held proper.

In numerous points appellants complain of statements made by one of appellee’s attorneys in closing argument to the jury, contending that such argument was improper and prejudicial and that the court erred in not granting appellants a new trial. The arguments complained of were statements by appellee’s attorney to the effect: (1) that he had felt in his pocket to see if he had a badge that he could give to Jack (Appellants’ attorney) so he could “pin it on his truck drivers”, that he would almost come to the conclusion that Jack felt and would want the jury to feel that a service had been done in taking the lives of two good women; (2) that defendants had failed to produce as witnesses the swamper who was in the truck, and the truck driver and a swamper of a truck which was right behind such truck and that plaintiffs had tried by subpoena to produce them; (3) that he could remember when a vacant lot could be bought in Lamesa and Tahoka for $500.00 on which this boy (Vernon Lee Brannan) could build a filling station but that now the same lot would cost $30,000.00; (4) that what would it be worth to Vernon when he is 25 and sitting on the side of a cot on somebody’s jail, or somebody’s battlefront or in his own home reflecting on mistakes that he may have made, to be able to call back and remember the time when his mother said: “Now, son, look, here is some advice, here is some counsel, remember it.” (5) that he read in the newspaper that steel after it had been processed into a tractor, or into a blowout preventer or into a truck was worth in excess of $1.00 per pound, and that the thing that took her life (Mrs. Brannan’s) was 65,000 pounds of fundamental steel worth on today’s market in excess of $1.00 a pound and that the advice of the boy’s mother, her counsel, her training, the contribution she would make was worth in excess of $1.00 for every pound that took her life; (6) that in 1966 a farm on which this boy (Vernon Lee Brannan) could make a living was worth $100,000.00, and just a lot on which he could build a filling station was worth $30,000.00; (7) and that appellee’s attorney in such argument stated or inquired of the jury as follows: “ — and what is it going to be worth to hire somebody to take care of this old gentlemen. I believe the newspapers have talked about it in terms of eight and ten thousand dollars a year. — ” Appellants further urge that the court erred in failing to grant them a new trial because of the cumulative effect of the argument complained of.

Appellants concede that they made no objections to any of the argument at the time of the trial and admit that a reversal of the judgment would not be proper unless the argument is so flagrant that an instruction from the court to the jury that it should not consider the same would not have rendered the argument harmless. In the court’s qualification of appellants’ bill of exception complaining of the argument it was stated that if objections had been made to some of the argument he would have sustained such objections and, if requested, would have instructed the jury not to consider it.

The general rule is that a judgment will not be reversed because of argument of counsel unless it appears that the argument was improper and was of such a nature as to satisfy the reviewing court that it was calculated to cause and probably did cause the rendition of an improper judgment. Aultman v. Dallas Ry. & Terminal Company, 152 Tex. 509, 260 S.W.2d 596 (1953).

None of the argument complained of was an appeal to racial prejudice as was the case in Texas Employers Insurance Association v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954). In our opinion the argument was not of such a prejudicial and inflammatory nature that the error involved was beyond correction by proper instruction from the court. It is true as urged by appellants that much of the argument was not supported by evidence, but it was not of an “incurable” nature. In Wade v. Texas Employers Insurance Association, 150 Tex. 557, 244 S.W.2d 197 (1951), argument by the claimant’s attorney in a workman’s compensation case contained improper reference to what the deceased employee’s wife, son and friend attempted to testify concerning statements made by the deceased after the accident, and to the fact that the employer’s insurance carrier had not offered testimony of any of the deceased employee’s fellow workmen except the leader. It was held by our Supreme Court that the argument was not so prejudicial that its harmful effect, if any, could not be cured, and therefore the error, if any, was waived by the failure of opposing counsel to object at the time the argument was made. The court, in passing upon the question, stated as follows:

“* * * [i]n a general sense most all improper argument, is the same, in that it appeals, whether by passion, the suggestion of ‘imaginary testimony’ or otherwise, to something other than the evidence in the case.”

In Younger Bros. Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546 (1959), it was stated:

“During the heat of trial extravagant and ill-considered statements are often made. The prejudice resulting from such remarks can generally be removed by an admonition to the jury from the presiding judge and we are unwilling to accede to the proposition that juries pay little or no attention to the instructions of trial judges. We do not regard the improper argument made in this case as being beyond correction by means of a proper instruction.”

The error, if any, in the instant case was of the type that it could have been cured by a proper instruction from the court, and was waived when appellants’ counsel failed to object thereto. The argument was not of such nature that it was reasonably calculated to cause and probably did cause the jury to render a verdict other than that it would have returned except for the improper argument.

Appellants’ points are all overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    E. G. GASPERSON et al., Appellants, v. CHRISTIE, MITCHELL & MITCHELL COMPANY, Inc., et al., Appellees.
    No. 16832.
    Court of Civil Appeals of Texas. Fort Worth.
    June 9, 1967.
    Rehearing Denied Sept. 15, 1967.

      Davis, Callaway & Marshall and Clyde M. Marshall, Jr., Fort Worth, for appellants E. G. Gasperson, J. J. Pistocco, Adrian Gasperson and J. L. R. (Bob) Gasperson.
    Simon, Crowley, Wright, Ratliff & Miller and Wayne A. Rohne, Fort Worth, for appellant Alfred A. Drummond.
    G. Roy Pate, Fort Worth, for appellee Worldwide Petroleum Corporation.
    Carrington, Johnson & Stephens and Charles R. Cravens, Jr., and Ronald L. Neill, Dallas, for appellees Whitehall Oil Co., Inc. and North Central Oil Corporation.
    Smith & Fulton and Paul Smith, Houston, Sewell & Forbis, Decatur, Vinson, Elkins, Weems & Searls and Ben H. Rice, III, Houston, for appellees George Mitchell & Associates, Inc., et al.
   OPINION

MASSEY, Chief Justice.

In the trial court E. G. Gasperson and others brought suit as plaintiffs against defendants Christie, Mitchell & Mitchell Company, Incorporated, et al., for varying forms of relief.

Part of the action of plaintiffs was severed from that part as to which the judgment with which we are presently concerned has application. The severed portion will be disregarded to the extent possible. As tried below the action of plaintiffs upon which judgment was rendered may here be treated as having been wholly defeated, with a “take nothing” decree in favor of the defendants.

The plaintiffs appealed. In connection therewith we quote from their brief, as follows: “Appellants restrict their complaints in this appeal to the refusal of the trial court to sustain their right to a one-thirty-second (⅛2) overriding royalty interest in the Flavis Greer portion (being the north 150 acres, approximately) of the Jeff P. Taylor tract, and their right to a $10.00 per acre bonus with respect to such portion of the Jeff P. Taylor lease tract, and the two Wilson lease tracts, and errors of the trial court which affected the determination of these matters.”

We affirm the judgment rendered below.

An initial question to be resolved relates to the burden of proof on a suit for declaratory relief in which an “overriding royalty” owner under an oil and gas lease seeks to have established that the lease had not expired because of a failure of production thereunder “in paying quantities” after the expiration of the primary term. In other words it is to be assumed that the primary term during which delayed rentals are payable in absence of production, in order to maintain the lease in effect for the primary term, had long since expired. But it is to be furthermore assumed that there was a lengthy period thereafter during which there was production of oil and/or gas and by reason of which the lease was continued in effect. Then it is to be assumed that there arises a dispute as to whether there is a cessation of production from the lease. For purposes of resolving the question it may be assumed that there were no additional drilling or reworking operations which would create any extension of the lease.

The law is well settled in instances where it is the lessee who is contending that his lease has not expired, and become forfeited under its provisions, as against a lessor who brings suit to have it declared that the minerals under his land have reverted to him by reason of the cessation of production “in paying quantities”. See discussion in Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774 (1959).

Under the authorities it is established that the lessor has the “laboring oar” and that his is the obligation to plead and introduce. evidence to prove that there has been a cessation of production from the lease “in paying quantities” as a matter of fact or in law. If the evidence adduced upon the trial makes the question one of fact to be resolved by the jury the lessor, as the complaining party, continues with his “laboring oar” and as part of his burden must insist that special issues be submitted to the jury where by a “preponderance of the evidence” inquiry is made as to whether the facts are existent upon which he predicates his right to regain the lease.

But what of a similar situation when there is no dispute between the lessor or lessee as to whether there has been such a cessation of production “in paying quantities” as to entitle the lessor to invoke forfeiture? What if there has been such a dispute but it has been resolved by their entry into a new lease contract as to all or part of the same lease as though there had never been any prior lease? And furthermore, what of such a situation when one with an intervening contract with the lessee (under the lease treated as extinguished, or as if it had never been existent) appears in court as a plaintiff seeking- to establish that as between himself and the lessee the prior lease continues in effect, — and that by-reason of contract, whereby the lessee originally acquired rights, there persists such a plaintiff’s entitlement to an “overriding royalty” interest in minerals produced therefrom (as to any part) ?

In the particular case posed by this appeal we may view the situation as one where such a plaintiff acquired all the lease rights of the original lessor (land owner) but in the assignment thereof to the ultimate lessee, who obtained production (which continued the lease in effect beyond its primary term), had obtained said lessee’s contractual agreement for the reservation of his interest to the extent of an entitlement to an “overriding royalty” in the minerals produced during the period the lease continued in effect.

It is obvious that such a plaintiff could have no titular interest in the leasehold estate, as from the original lessor, unless the lessee’s interest therein persisted and continued after the primary term of the lease by reason of production therefrom “in paying quantities”. The interest of such a plaintiff necessarily depends upon the continuance of the lessee’s interest for it is thereupon conditioned.

Thus, in a dispute between such a plaintiff and the lessee as to whether the lease continued in effect because there continued to be a production of minerals therefrom “in paying quantities” we have the exact converse of the usual action where it is the lessor who is in position of a plaintiff contending against a defendant lessee.

It is to the interest of such a plaintiff that it be declared that production continued, for if such be established it would follow that the lease remains in force and effect. He is, therefore, obliged to bring his suit under pleadings which allege such to be a fact; and is obliged to adduce evidence to that effect with the burden cast upon him in the submission of special issues. He is obliged to obtain findings in his favor. General rules apply. See 23 Tex. Jur.2d, p. 154, et seq., “Evidence”, Sections under Sub. V, “Burden and Degree of Proof”.

If the evidence produced upon trial by such a plaintiff merely raises issues of fact to be resolved by a jury (i. e., does not show that he is entitled to judgment as a matter of law because there is no question of fact to be resolved) he is obliged to insist that special issues submitting his theory be in the charge given by the court, and if not placed therein he is obliged to make a bill of exceptions because of the court’s refusal, or he will be held to have waived the right to such issues. Texas Rules of Civil Procedure 279, “Submission of Issues”. In such a case the plaintiff, having waived right to obtain findings under which his right to recovery depends, also waives right to complain because he does not obtain a judgment. Any judgment in his favor would necessarily be based thereon.

In a very material aspect of the case presented it must be held that the plaintiffs lost their case — insofar as it was a case which sought to have it declared that their rights to “overriding royalty” persisted because production of minerals “in paying quantities” was continuous from the lease they had assigned to others, thus continuing said lease (and their interest thereunder) — since we are convinced that the whole proof on trial failed to show that they were entitled to prevail as a matter of law. Not being entitled to prevail as a matter of law the plaintiffs were left with a “fact case”, i. e. one in which theirs was the burden to prevail by obtaining fact findings upon which application of the law entitled them to a judgment. They failed to discharge the burden for they failed to have fact questions submitted or to complain because appropriate fact questions were not submitted.

The same may be said with reference to the question of whether later leases were in fact taken “in renewal and/or extension” of such (or as to a portion thereof). If the former lease had actually expired according to its terms, any new lease(s) taken would not be “in renewal and/or extension” except by contract of the parties to the new lease (s). Furthermore, even if the contract so provided it would only be binding upon parties in privity to the new contract.

In view of these conclusions we move to the matter of whether the plaintiffs might, under alternative theories, be entitled to their claimed “overriding royalty” interest in the new lease (Flavis Greer), taken on a portion of, but not of the whole of lands comprising the original Jeff P. Taylor lease. We also consider their contentions relative to rights to $10.00 per acre bonus on the new lease.

Here, it is believed, we should copy material portions of the legal instruments under and by reason of which (in part) the plaintiffs contend they are so entitled. To be borne in mind is the fact that plaintiffs, additionally, contend that they should prevail under principles of estoppel, and furthermore because the interest they claim should be imposed upon the new Flavis Greer lease as a constructive trust.

The Original Jeff P.

Taylor Lease (Dated 1/22/48 for a primary term of 10 years)

The lease was a Texas Standard Form of lease commonly termed “Producers 88 Revised 12-42 — (With 40-Acre Pooling Provision).” Beyond the “primary term” of 10 years the lease provided that it would continue “as long thereafter as oil, gas or other mineral is produced from said land or land with which said land is pooled hereunder.” As applied to a situation where there was production of oil, gas or other minerals at the termination of the “primary term” — so that the lease would continue in effect — it provided as follows: “if after discovery of oil, gas or other mineral, the production thereof should cease from any cause, this lease shall not terminate if Lessee commences additional drilling or reworking operations within 60 days thereafter or if it be within the primary term, commences or resumes the payment or tender of rentals or commences operations for drilling or reworking on or before the rental paying date next ensuing after the expiration of 60 days from date of completion of dry hole or cessation of production.”

It was further provided: “The rights of either party hereunder may be assigned in whole or in part, and the provisions hereof shall extend to their heirs, successors and assigns; but no change or division in ownership of the land, rentals or royalties, however accomplished, shall operate to enlarge the obligations or diminish the rights of Lessee. * * * ”

It is to be observed that no provision of the lease bears upon any obligation of the lessee to act so that it would continue in force and effect for the benefit of lessor or any other person. Rather does the import bear upon what must be done to continue the lease in effect for the benefit of the lessee, or what condition(s) must exist or continue at varying times if it is to continue in effect for the benefit of the lessee. It is obvious that the origin and development of this form of lease was by and for those in position of lessees, not lessors, and to protect lessees against forfeiture of rights thereby obtained. In particular it is to be noticed that there is no provision which protects a lessor from having the lessee forfeit to him the lessee’s rights in any situation where production after the “primary term” causes them to continue in effect but where production later ceases, regardless of cause.

PLAINTIFFS’ EXHIBIT 2

(Original Lease Assignment of 11/22/55)

(Placed of record in Lease Records of Wise County, Vol. 88, Page 361)

“THE STATE OF TEXAS ~1 “COUNTY OF WISE J

KNOW ALL MEN BY THESE PRESENTS:

“THAT, E. G. GASPERSON and J. J. PISTOCCO (hereinafter- called ‘Assignor’) for valuable consideration received from CHRISTIE, MITCHELL and MITCHELL CO., a Texas Corporation of Harris County, Texas, (hereinafter called ‘As-signee’) has TRANSFERRED, ASSIGNED AND CONVEYED and by these presents do TRANSFER, ASSIGN AND CONVEY unto the said Assignee the following described oil, gas and mineral leases covering lands situated in Wise County, Texas, to-wit:

“(1) Lease dated January 22, 1948, between Jeff P. Taylor et ux, as Lessors, and Graphie E. Hudson, as Lessee, recorded in Volume 52, Page 345, of the Lease Records of Wise County, Texas, covering 230½ acres of land as therein described.

* sjc *

“Assignor hereby excepts from the terms hereof and reserves and retains unto himself, his heirs and assigns, an overriding royalty on the oil, gas and other minerals that may be produced, saved and sold from the above described lands under and by virtue of said leases, said overriding royalty being as follows:

“(a) On oil ⅝2 of ⅞ of all that produced, saved and marketed, the same to be delivered at the well or wells or to the credit of Assignor into the pipe line to which the well or wells may be connected.

“(b) On gas, including casinghead gas or other gaseous substance produced and sold or used off the premises, or in the manufacture of gasoline, or other product therefrom, the market value at the well of ⅝2 of of all of the gas so sold or used, provided that on gas sold at the wells the overriding royalty shall be ⅜2 of ⅞ of the amount realized from such sale;

“(c) On all other minerals mined and marketed, ⅝2 of ⅞ of all, either in kind or value at the well or mine, at Assignee’s election.

“The foregoing overriding royalty is expressly made subject to the following terms and conditions;

“1. Said overriding royalty shall be charged with its proportionate part of all severance, production or other taxes and the Assignee shall have the right to use any oil and gas produced from the lease for operations thereon and thereunder and on any unit formed hereunder before calculation of overriding royalty, and such overriding royalty shall be paid, and only paid, if, as and when production is obtained and saved and Assignee shall be under no responsibility of any kind whatsoever to the Assignor to maintain said lease in effect, or to conduct any operations upon the said property, or to produce any minerals therefrom. (Emphasis supplied for purposes of the opinion.)

“2. Insofar as the rights of Assignor are concerned, Assignee shall have the righj: and power to pool or combine the acreage covered by said leases or any portion of such acreage with other land, lease or leases in the immediate vicinity thereof when, in Assignee’s judgment, it is necessary or advisable to do so in order properly to develop and operate said premises in compliance with any lawful spacing rules which may be prescribed for the field in which said lands are situated by any duly authorized authority, or when to do so, in the judgment of the Assignee, would promote the conservation of oil and gas in and under and which may be produced from said lands, and with respect to any such unit so formed, Assignee shall execute in writing an instrument or instruments identifying and describing the pooled acreage. In lieu of the overriding royalty above specified, Assignor shall receive on production from a unit so pooled only such portion of the overriding royalty stipulated herein as the amount of the above described acreage placed in the unit bears to the total acreage so pooled in the particular unit involved. The above privilege and option to pool and unitize shall be applicable and may be exer- . cised with respect to oil, gas and liquid hydrocarbons of gas, or any one or more of said substances.

“3. If said leases cover less interest in .the oil, gas and other minerals than the entire and undivided fee simple estate, the said overriding royalty in respect to production under such leases shall be paid only in the proportion which the interest covered by said lease bears to the whole and undivided fee simple estate.

“It is further agreed by and between the parties hereto that if drilling operations on the herein assigned premises, or land pooled therewith, are not commenced within ninety days from the expiration date of each assigned lease, assignee, his heirs or assigns agree to reassign the above described premises to the assignor herein.

“TO HAVE AND TO HOLD the above described property unto the assignee, its successors and assigns, and Assignor, for himself and personal representatives, hereby warrants and agrees to defend the same unto Assignee, its successors and assigns, against every party whomsoever claiming or to claim the same or any part thereof, by, through or under Assignor, but not otherwise.

“EXECUTED this the 22 day of November, 1955.

“/s/ E. G. Gasperson “E. G. Gasperson

“/s/ J. J. Pistocco “J. J. Pistocco

(C * * * Ü

PLAINTIFFS’ EXHIBIT 3

(10/14/57 Amendment of Original Lease)

(Placed of record in Lease Records of Wise County, Vol. 104, Page 93)

“STATE OF TEXAS) "I “COUNTY OF WISE) f

“WHEREAS, by assignment dated November 22, 1955, recorded in Volume 88, Page 361, Lease Records of Wise County, Texas, reference hereby made to said assignment for all purposes, E G Gasperson and J J Pistocco transferred, assigned and conveyed unto Christie, Mitchell and Mitchell Co. the following described oil, gas and mineral leases covering lands situated in Wise County, Texas, To-wit:

“(1) Lease dated January 22, 1948 between Jeff P Taylor et ux, as Lessors, and Graphie E Hudson, as Lessee, recorded in Volume 52, Page 345 of the Lease Records .of Wise County, Texas, covering 230½ acres of land as therein described.

“ * * *

“WHEREAS, the following provision is contained in said assignment, to-wit: ‘It is further agreed by and between the parties hereto that if drilling operations on the herein assigned premises, or land pooled therewith, are not commenced within ninety days from the expiration date of each assigned lease, assignee, his heirs or assigns agree to reassign the above described premises to the assignor’; and, it is the purpose of this agreement to amend said assignment by substituting the above quoted provision for the provision as hereinafter set out.

“NOW, THEREFORE, in consideration of the premises, and of Ten Dollars ($10.00) cash in hand paid and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned do hereby amend said assignment by incorporating therein the following provision, in lieu of the provision above quoted, to-wit:

“ ‘It is further agreed by and between the parties hereto that if operations for drilling on the herein assigned premises, or land pooled therewith, are not commenced within ninety days from the expiration date of each assigned lease, assignee, its successors or assigns agree to reassign such lease to the assignor herein; provided however, that if assignee obtains a renewal or extension .or primary term of any of the assigned leases on or before ninety days from the expiration date of each assigned lease, such renewed or extended lease shall remain in all respects in assignee for such renewed or extended term, and assignors overriding royalty interest on such lease as provided for in this assignment shall be continued and carried over unto such renewed or extended lease; and, provided, further, that assignee shall pay to assignor the sum o,f Ten ($10.00) Dollars per net acre on each lease which assignee renews or extends the primary term thereof.’

“Said assignment as hereby amended is hereby ratified and confirmed and declared to be in full force and effect upon the terms and conditions set out in said assignment as herein amended.

“IN WITNESS WHEREOF, this instrument is executed this 14 day of October, 1957.

“/s/ E G Gasperson

“/s/ J J Pistocco”

DEFENDANTS’ EXHIBIT 31

(Conditional Waiver of Reassignment Right)

“Wichita Falls, Texas

“November 6, 1957

“Christie, Mitchell and Mitchell Co.

“Box 68

“Bridgeport, Texas

“Re: #14035-A-Jeff P. Taylor Lease Wise County, Texas

“Dear Sirs:

“Please be advised that the 90 day reassignment provision with reference to the above captioned lease in Wise'County, Recorded in Volume 52, Page 345, is hereby waived and I do hereby ratify and confirm said assignment into you as per Volume 88, Page 361 as amended, as being in full force and effect, provided you commence operations thereon by November 11, 1957.

“Yours very truly,

“/s/ J. J. Pistocco

“J. J. Pistocco”

DEFENDANTS’ EXHIBIT 32

This exhibit identical with Exhibit 31, except that it was executed by E. G. Gasper-son.

It was following the execution of these letters (Exhibits 31 and 32) that drilling occurred which resulted in production from the original Jeff P. Taylor Lease tract causing the lease thereon to continue beyond the primary term. Such production was on the portion of said lease tract not covered or contemplated by the subsequently executed Flavis Greer Lease. It is the Flavis Greer lease which was negotiated and executed between parties thereto at a time when plaintiffs contended their former rights persisted, in opposition to defendants’ contention that they were concluded.

The Flavis Greer Lease

(Dated 1/21/61 for a primary term of one year)

The lease was on a Veterans’ Land Board Lease Form (Revised September 1, 1957), executed by Flavis Greer of Wichita Falls, Texas, to Christie, Mitchell and Mitchell, a partnership, for a consideration of $1,-957.00 cash paid to Greer and a like sum of $1,957.00 paid to the Veterans’ Land Board, State of Texas, for credit to lessor. Greer’s account, and of the covenants and agreements of the instrument on the part of the lessee, with a grant of land described aggregating “156.56 acres more or less” and comprising all of the same land formerly comprising the Jeff P. Taylor 236.56 acres of land “SAVE AND EXCEPT” the South 80 acres thereof.

Additional consideration was the covenant of the Lessee to pay to the Veterans’ Land Board of the State of Texas for credit to Lessor’s account the value of ¼6& of all oil and/or gas produced and saved from the leased premises and to deliver to the credit of the Lessor, free of cost, in the tanks or pipe lines to which wells may be connected an additional equal ½6⅛ part of oil produced and saved from the leased premises, or at Lessor’s option ¾6⅛ of the value of all oil and/or gas produced and saved from the lease premises.

It was provided that: “If no well be commenced on said land, hereby leased, on or before the 21 day of February 1961, this lease shall terminate as to both parties.”

It was provided that: * * * it is understood that as long as this tract of land is under Contract of Sale and Purchase agreement with the Veterans’ Land Board, the Board shall be entitled to receive Lessor’s portion of all rental and royalty payments under this lease for credit to his account if and when the Lessor or his assignees become delinquent in payment of installments due under the terms of the Contract of Sale and Purchase agreement and further, the Lessee, by acceptance of this lease, if he elects to pay delay rentals, agrees to make such payments to the Board upon mailing by the Board of delinquency notice by certified mail. * * * ”

Additional provisions included these covenants and conditions ordinarily found in oil and gas leases, plus many more which were inserted at the obvious instance of the Veterans’ Land Board and/or Flavis Greer.

Production ceased from the land covered by the Taylor lease on or about date of March 18, 1960 and such cessation continued until July 5, 1960, a period in excess of 60 days, without commencement of additional drilling or reworking operations. Such production as there had been was by the Whitehall Oil Company, Incorporated, on the north 80 acres of the Taylor lease (not a part of the Flavis Greer lease of January 21, 1961) to which it had obtained a “farm-out” from Christie, Mitchell and Mitchell Company. The production therefrom was stopped by Whitehall’s employee through the device of turning a valve on March 18, 1960. It was explained in the evidence that production would have continued but for such action, and the reason for the action was because of “overproduc- ’ tion”.

On and prior to the time of the disputed forfeiture or lease termination there had been a change in ownership of the re-versionary interest of the lease. The south 80 acres, on which was located the well drilled by Whitehall Oil Company, Incorporated, belonged to Clifton Smith. The remainder of the land — originally encompassed by the Taylor lease — belonged to Flavis Greer. It is to be remembered that we are here concerned only with rights in dispute under the land of Flavis Greer.

It was Christie, Mitchell and Mitchell, a partnership, which on January 21, 1961, negotiated a new lease on the 156.56 acres, with Flavis Greer as lessor. The partnership may be distinguished from Christie, Mitchell & Mitchell Company, Inc. though for purposes of the appeal we may disregard the distinction. The facts show that agents for the company and the partnership were one and the same persons. Both would be bound insofar as questions exist upon plaintiffs’ rights herein asserted. By said newly negotiated lease the lessee obligated itself to institute drilling operations. Said operations ensued and proved successful, production therefrom being realized.

Of course, the situation and circumstances whereby Whitehall Oil Company, Incorporated, intentionally shut off that production which until such time was holding the Taylor lease in effect (thus resulting in a dispute upon lease forfeiture) presented occasion for plaintiffs Pistocco and Gasper-son to feel that they had suffered mistreatment. Because thereof they plead under principles of estoppel on the theory that they had been defrauded. Though later disregarded by the Court, on motion, there were special issues bearing thereupon submitted to and answered by the jury; the effect thereof being as follows:

Sp. Issue No. 9. Defendants represented to Plaintiff, E. G. Gasperson, during their negotiations with Flavis Greer with respect to the north 156.56 acres of the Jeff P. Taylor Lease Tract that the Taylor Lease was still in effect and would be preserved to continue the ⅛2 overriding royalty interest of the Plaintiffs in such tract.

Sp. Issue No. 10. Such representation to E. G. Gasperson was for the purpose of inducing Plaintiffs to refrain from any action on their part with respect to protecting their overriding royalty interest in the north 156.56 acres of the Jeff P. Taylor Lease Tract.

Sp. Issue No. 11. E. G. Gasperson relied upon the truth of such representation.

Sp. Issue No. 12. Plaintiffs were induced by such reliance on such representation to refrain from taking any independent action to preserve their overriding royalty interest in such north portion of the Jeff P. Taylor Lease Tract.

Sp. Issue No. 13. In negotiating with and effecting the new lease from Flavis Greer in January, 1961, the Defendants, Christie, Mitchell & Mitchell Company and Christie, Mitchell & Mitchell (the partnership), acting through their agents, took the position and contended that the Jeff P. Taylor Lease was still in full force and effect as to the entire 236.56 acre tract by reason of production from the Whitehall No. 1 Jeff P. Taylor Well.

Sp. Issue No. 14. The action of Defendants in taking the new lease from Flavis Greer in January, 1961, with respect to the north 156.56 acres of the Jeff P. Taylor Lease tract, was a compromise and settlement in order to avoid a lawsuit with Flavis Greer.

Sp. Issue No. 15. The Defendants, and George P. Mitchell, acted in bad faith toward Plaintiffs in the manner and method of taking the lease from Flavis Greer in January, 1961.

As applied to the special issues submitted to and answered by the jury we are in agreement with the conclusion of the trial court, as stated in the judgment, that they were proper to be disregarded as having no support in the evidence. Such evidence as appears in the record is upon examination disclosed to be by way of conversations with plaintiffs upon occasions which were either a time prior to March 18, 1960, when the Taylor lease was in fact continuing in effect because of the production, or subsequent to the time Christie, Mitchell and Mitchell, a partnership, successfully negotiated the Flavis Greer lease on January 21, 1961.

Contentions in regard to said special issues are necessarily predicated upon an alternative and contradictory theory to plaintiffs’ primary contention that the entire Taylor lease continued in effect at all times or at least until there was a negotiation of the new Flavis Greer lease. For purposes of such alternative theory plaintiffs necessarily conceded that the Taylor lease had expired by its own terms and that the new Flavis Greer lease was taken on unleased land. It is upon the interest of the lessee, acquired therein, that they seek to impose and impress the “overriding royalty” interest claimed by them, plus the payment of the $10.00 per acre bonus they claim entitlement.

Plaintiffs are hence in position where they seek by estoppel to create a cause of action for recovery of contractual rights in the Flavis Greer lease. This they cannot do because estoppel is defensive in character and may not in and of itself create a cause of action under which a recovery is to be obtained. Scott v. Industrial Life Insurance Company, 411 S.W.2d 769 (Dallas Civ.App., 1967, no writ hist.). Furthermore, even had there been an oral contract between the parties, plus consideration deemed adequate in law, an estoppel with respect to interests in land cannot arise unless the party claiming the estoppel has also changed his position in some objective way in reliance thereupon, as by going into possession and making permanent and valuable improvements with the consent of the vendor. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216 (1921). Also, the Statute of Frauds is applicable where the plaintiff seeks to establish a cause of action by proof of an oral contract, the subject matter of which is found in a preceding agreement in writing. 26 Tex.Jur.2d, p. 155, “Frauds, Statute of”, § 5, “Oral modification or rescission of written agreement.”

For these additional reasons the trial court properly disregarded answers to special issues, numbers 9 to 15, inclusive.

Certainly the situation as described to this point would not support a constructive trust in the new oil and gas lease taken from Flavis Greer after expiration of the Taylor lease. Rogers v. Winn, 329 S.W.2d 319 (San Antonio Civ.App., 1959, writ ref. n. r. e.). The fact that people have had prior dealings with one another and that one party subjectively trusts the other does not establish a confidential relationship. For a constructive trust to arise there must be a fiduciary relationship before, and apart from, the agreement made the basis of a suit to establish the existence of such. Consolidated Gas & Equipment Co. of America v. Thompson, 405 S.W.2d 333 (Tex.Sup., 1966). As a matter of law a constructive trust could not have existed under the circumstances of the instant case and the trial court did not err in failing to submit fact issues bearing thereon.

There is an excellent discussion of application of constructive trust principles, including effect thereon of contractual provisions militating against imposing such in an oil and gas lease in Sunac Petroleum Corporation v. Parkes, Tex., 416 S.W.2d 798. Also discussed therein is the matter of whether and when the taking of a new lease may be treated as taken in renewal and extension of a prior lease.

Not mentioned, heretofore, was the fact that while the original Taylor lease was being held in effect by production it was for a certain period “pooled” (for gas production only) with an adjoining tract, called the Hanna Lease. This pooling began in December of 1957. The “pooling”, as by contract or agreement, ended on or before March 8, 1960 by release. The only evidence relative to production from the Hanna Lease was by a disinterested party, one Henry Grace. His testimony was that he acquired new leases on the Hanna land the first of the year 1960, at which time there was no well on the lease tract, nor any production of minerals therefrom. His testimony went further. It was to the effect that prior to his own drilling on said lease tract that no other oil and gas well had been drilled on the particular lease tract. We feel certain that in view of the undisputed evidence it is proper to completely disregard the fact that the Taylor leased land had ever been “pooled” with any other.

We may disregard, and do, the fact that Flavis Greer purchased the land termed the Flavis Greer lease tract from the Veterans' Land Board of the State of Texas under purchase and sale contract so that deed to him was delayed. Greer’s lease was satisfactory to the Veterans’ Land Board, which approved it. The fact that material conveyances and contracts, even including final transfer of title in 1962, bear recitations that they were subject to the original Taylor lease is to be treated as meaningless for purposes of resolving the questions posed on appeal.

We, furthermore, consider inconsequential the fact that on December 4, 1957, defendant Christie, Mitchell & Mitchell Company made a loan to plaintiff E. G. Gasper-son upon consideration and in part received security in the form of a conditional conveyance of an undivided one-half interest in all his royalty, overriding royalty and mineral interest in certain leases—including the Jeff P. Taylor lease—to be held in trust as such security. In no sense applicable to the questions posed by the appeal would such create any fiduciary relation between the parties to the loan transaction which would enure to any plaintiff’s benefit under the theory of a resulting fiduciary relationship of the parties, and correspondent resulting fiduciary obligation on the part of Christie, Mitchell & Mitchell Company, inhibiting resistance to the claim made against it under any theory of plaintiffs’ action.

The circumstances do not exist which would entitle plaintiffs to collect the $10.00 per acre bonus on the Flavis Greer lease tract, taken under lease dated January 21, 1961, for the same reasons we have held that plaintiffs are not entitled to recover a judgment which imposes or declares in effect, as to said premises, their right to an “overriding royalty” interest. In either event in order for plaintiffs to show a right to recover it would be requisite that plaintiffs have fact issues submitted to the jury, with favorable findings thereto returned establishing the rights for which they contend. As to the question of right to bonus it was essential to establish factually that the new Flavis Greer lease was “in renewal and/or extension” of the Jeff P. Taylor lease. Such issues were not submitted and no complaint is presented to us of refusal of any special issue bearing thereupon. Hence right to recover is waived, for as previously stated the undisputed facts fail to show a state of affairs under and by reason of which plaintiffs might be held to have established their right to recover as a matter of law.

We now believe it proper to consider that which might be treated as a separate cause of action asserted by plaintiffs concerning what is referred to as the two Wilson Leases. The interested defendants have always recognized that such leases fall within the “renewal or extension of primary term” provisions of the October, 1957 amendment (Plaintiffs’ Ex. 3) to the November 22, 1955 assignment (Plaintiffs’ Ex. 2). There was evidence that the defendants had decided to reassign the original leases to the plaintiffs rather than renew them, renewal entailing paying bonus both to the landowners and the plaintiffs. Under the defendants’ theory it was upon the promotion by and at the instigation of the plaintiffs that they, the defendants, did agree to renew the leases. According to their pleaded theory plaintiffs, in inducement, agreed to forego the $10.00 per acre bonus provided by the October, 1957 amendment if defendants would take a renewal which would obligate them, in the event of production, to pay plaintiffs an overriding royalty interest. Under defendants’ theory the representative of plaintiffs was oral, but plaintiffs did not plead the Statute of Frauds. Furthermore, under the evidence which was admitted, over objection, there was a written memorandum of the event by the authorized agent of the defendants who entered into the agreement. It read, “Mr. Gasperson is to attempt to renew leases #14038—Tom J. Wilson and #14039—D. J. Wilson for $15 per acre with no other consideration to Gasperson and Pistocco other than to carry them for their override as set forth in the original assignment.” The memorandum was admitted into evidence as proven to have been made in the regular course of business. Vernon’s Ann. Tex.St., Art. 3737e, “Memorandum or record of act, event or condition; absence of memorandum or record as evidence.”

In answer to a jury issue, submitted with burden cast upon the defendants, the jury returned its finding that the agreement was so made. Gasperson did, for himself and Pistocco, obtain the renewal of said leases. They thereafter expired without production. The only question with reference to them is plaintiffs’ right to recover the $10.00 per acre bonus for obtaining the renewal leases.

Plaintiffs’ theory is that the agreement claimed by the defendants was without consideration, but we are of the opinion that the consideration was the defendants’ agreement to renew upon consideration — as applied to plaintiffs — that they would waive right to bonus payment in the event renewals were obtained. Since the evidence showed that only a day or two earlier the agreement had been made for such renewals with plaintiffs to receive the bonus as well as the right to “overriding royalty” plaintiffs claim that the jury finding was against the great weight and preponderance of the evidence. We are of the opinion that there was evidence, and that the finding was not against the great preponderance of the evidence. Relative to their contention that the memorandum was inadmissible as hearsay and self-serving despite Art. 3737e, plaintiffs cite Taylor-Link Oil Co. v. Anderson, 92 S.W.2d 499 (Austin Civ.App., 1936, writ dism.). The decision cited considered Art. 3737 as then in effect. Article 3737e, which liberalized the rules of admissibility of evidence of the character under consideration, was later enacted. We hold that under Article 3737e it was within the discretion of the trial court to admit the memorandum, and that as so admitted it constituted competent evidence.

The remainder of plaintiffs’ points of error have relation to evidence upon which the trial court ruled in a way which is contended to have been erroneous and as to which exception was taken.

In the beginning of the discussion in plaintiffs’ brief they recognize the fact that theirs is the obligation to show as to one or more of the events of which complaint is made that prejudice to them was sufficiently probable to constitute reversible error under the provisions of T.R.C.P. 434, “If Judgment Reversed”. Under decisions predicated upon the rule it is established that the denial of evidence contended to have been admissible or the admission of evidence of the opposite party contended to have been inadmissible must be such as was reasonably calculated to cause and probably did cause the jury to return a verdict contrary to that which it would have returned but for the error complained of.

Except for the answer to Special Issue No. 16, by which the jury found for the defendants in relation to the agreement to waive the $10.00 bonus provision if the defendants would renew the Wilson leases and therein provide for plaintiffs’ “overriding royalty” interest, it is obvious that the jury was for the plaintiffs and against the defendants. This is demonstrated by jury findings returned to Special Issues Nos. 9 to IS, inclusive, which we outlined at an earlier stage of the opinion. This opinion has become somewhat extended, and it is our opinion and belief that the circumstances of the entire record is such that the events complained about, assuming they actually constituted error, were not such as caused the jury to return a verdict which it would not have returned had they not occurred.

Therefore, we hold that even when assumed to constitute error the errors were not such as should occasion a reversal in view of the provisions of T.R.C.P. 434.

The judgment is affirmed.


author: KLINGEMAN, Justice.

text:
    CITY OF SAN ANTONIO, Appellant, v. Otto L. MICHALEC et al., Appellees.
    No. 14597.
    Court of Civil Appeals of Texas. San Antonio.
    July 26, 1967.
    Rehearing Denied Sept. 13, 1967.

      Raymond W. Weber, Jackson C. Hubbard, San Antonio, for appellant.
    Pat Maloney, San Antonio, for appellees.
   KLINGEMAN, Justice.

This is a condemnation suit brought by the City of San Antonio, appellant herein, to condemn a portion of appellees’ land for public street purposes. The parties stipulated as to the right to condemn and that all statutory prerequisites had been complied with, leaving only the issues concerning the value of the property. The court’s charge in definition of market value and form of issues given followed State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 979 (1936), with three special issues submitted. In response to Special Issue No. 1, the jury found that the market value of the land taken was $750.00. In answer to Special Issue No. 2, the jury found the market value of defendants’ remaining land, exclusive of the land taken, immediately before the taking for street purposes was $18,250.00. In answer to Special Issue No. 3, the jury found the market value of the remaining land, exclusive of the land taken, immediately after the taking was $16,000.00. Judgment was entered by the trial court that appellees recover the sum of $3,000.00 in accordance with the jury’s verdict.

No complaint is made in this appeal as to the jury’s answer to Special Issue No. 1.

Appellant’s first point of error is that the court erred in failing to grant appellant’s motion to strike the value opinion testimony of appellees’ witness Joe Lucchese in its entirety on the grounds that such testimony was not based on market value, but rather something in excess of market value which the witness identified as “market value plus unique features.” Appellant’s second point of error is that the court erred in denying and failing to grant appellant’s motion to strike the value opinion of witness Lucchese insofar as such testimony reflected an opinion of damages to the remainder of appellees’ land, on the grounds that same was a mere conclusion and failed to translate or demonstrate the nature of the damage, the effect upon various portions of the tract and the relationship of same to market value, but rather, when he undertook to make such an analysis, demonstrated enhancement rather than damage to the market value of the remainder.

Appellees’ tract of land involved is situated in the Woodlawn Hills Subdivision of San Antonio, and is a tract substantially rectangular in shape, 125 feet wide and approximately 580 feet deep. Such property fronts on Hillcrest Drive, and the house and garage are on the front or west portion of the property. There is a retaining wall behind and east of the house, which is approximately 70 feet west of the proposed street. The new street bisects appellees’ property, taking 0.242 acres thereof, severing the remainder into two parts, one east and the other west of the new street.

Joe Lucchese testified that he had been in the real estate business in San Antonio for almost fifty years and had made appraisals for various banks, the Housing Authority, the School Board, and the City of San Antonio, and had testified as to values on many occasions, both for the condemnor and the condemnee; that he had inspected appellees’ property on three different occasions and also had made an investigation in this area for comparative sales.

Appellant’s first point of error is based upon the contention that Lucchese’s testimony as to value was not based on market value, but “market value plus unique features.” From an examination of his entire testimony, we do not so construe Lucchese’s testimony. He gave a substantially correct definition of market value, and his testimony stressed that appellees’ property had an unusual depth and contains many trees and unusual features, and in the area where the property is located there is a group of people who desire just this type of lot because of its adaptability for family use — picnic area, playground for children, etc.

His testimony that it had a unique value is properly construed that such uniqueness enhanced its market value, and was one of the elements he was taking into consideration in his determination of market value. On cross-examination, when asked by appellant, “Are you going so far as to tell us it does not represent market value?” he answered: “No, it represents the market value in its own property — in that particular type of property.”

In determining the value of property condemned, there should be taken into account all considerations that might fairly be brought forward and reasonably be given substantial weight in negotiations between the owner and prospective purchaser, so, in arriving at the before and after value, it is proper to take into consideration all those things pertaining to the land that a seller or purchaser would consider in arriving at the market value. 29A C.J.S. Eminent Domain § 159. Our Supreme Court, in State v. Carpenter, supra, quoted from Lewis on Eminent Domain, as follows: “The market value of property includes its value for any use to which it may be put. If, for reason of its surroundings, or its natural advantages, or its artificial improvements, or its intrinsic character, it is peculiarly adapted to some particular use, all the circumstances which make up this adaptability may be shown, and the fact of such adaptation may be taken into consideration in estimating the compensation.”

We find no error of the trial court in refusing to strike all of witness Lucchese’s testimony, and appellant’s point of error No. 1 is overruled. Nor do we find any merit in appellant’s point of error No. 2.

Lucchese, on direct examination, testified that the value of the entire property before the taking was $19,500.00, that the value of the land taken was $750.00, and that by reason of the dissecting the property had suffered severance damages of $5,750.00. Lucchese, on cross-examination, when asked to break down his valuations, placed a value, after the taking, of $8,500.00 on the front part, from the existing street to the retaining wall; a value of $2,500.00 for that portion of the property between the retaining wall and the new street; and a value of $2,750.00 for that portion east of the new street, or a total value of the remainder, after the taking, over and above the land taken, of $13,750.00. His value of the entire property before the taking was $19,500.00. He testified that in this particular section of town the type of lot owned by appellees had a particular value as a whole to a certain class of buyers, because of its adaptability for raising a family, and that all of these matters were taken into consideration by him. Appellant’s motion to strike went more to the weight of Lucchese’s testimony than to its admissibility, and the court did not err in refusing to strike such testimony.

Appellant’s points of error Nos. 3, 4, 5, 6 and 7, will be discussed together. Appellant, under its third and fourth points of error contends there is no evidence to support the jury’s answer to Special Issue No. 3, and no evidence to support any answer to Special Issue No. 3 in an amount less than its answer to Special Issue No. 2. Appellant’s point of error No. 5 is that there is insufficient evidence to support the jury’s answer to Special Issue No. 3, and that such answer is against the great weight and preponderance of the evidence. Point of error No. 6 is that the difference in the value of the remainder, before and after the taking and the judgment based thereon, is grossly excessive by the amount of $2,250.00, and that a remittitur in such amount should be ordered by this Court. Appellant’s last point of error is that the case should be reversed and remanded for a new trial because of the cumulative effect of the errors complained of in points of error Nos. 1 through 6, which amounted to such a denial of appellant’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper and excessive verdict and judgment based thereon.

In addition to Joe Lucchese, whose testimony has already been set out in some detail, two other value witnesses testified; namely, Richard M. Peacock and E. A. Kramer. Both witnesses had extensive experience in the real estate business and in making appraisals, and both had made a personal inspection of appellees’ property, and had made an investigation into comparative sales in this area. Below is a tabulation summarizing the opinion as to values and damages of all witnesses:

As can be noted from the above table, the values found by the jury are within the range of values testified to by thé value witnesses. If the jury accepted the before taking value of Kramer, $20,110.00, and the after taking value of Peacock, $14,500.00, there would be severance damages of $5,610.00, which is very close to the amount of severance damages testified to by Lucchese, and considerably in excess of the damages found by the jury.

This Court in a condemnation case, Coastal Transmission Corp. v. Lennox, 331 S.W.2d 778 (1960, no writ), stated: “It is well settled that the jury is not bound by the testimony of any witness. They may accept all, part, or none of the testimony of a witness. They may accept part of the testimony of one witness and part of another, or they may draw their own deductions from all the evidence in the case.” In another condemnation case, City of Houston v. Raborn, 409 S.W.2d 480, (Tex.Civ.App. — Waco 1966, writ ref’d n. r. e.), the Court held that “the jury in arriving at its verdict, did not have to adopt all the testimony of either of the witnesses. It could adopt the testimony of each of the witnesses in part and reject it in part.”

Jurors are at liberty to reach their conclusion by blending all of the evidence before them, aided by their own experience and knowledge on the subject of inquiry. They are not compelled to credit all of the testimony of any witness or to reject all of it. McConnico v. Texas Power & Light Co., 335 S.W.2d 397, (Tex.Civ.App.— Beaumont 1960, writ ref’d n. r. e.). See also, Vander Weg v. State, 413 S.W.2d 118 (Tex.Civ.App. —Beaumont 1967) ; Cocke v. State, 391 S.W.2d 553 (Tex.Civ.App.—Austin 1965, no writ).

From an examination of all the testimony, we feel that the jury’s verdict and the judgment based thereon are sufficiently supported by the evidence, and all of appellant’s points of error are overruled.

The judgment is affirmed.


text:
    Gertrude O. Sammons MANNING et vir, Appellants, v. Ed E. SAMMONS, Individually and as Independent Executor of Estate of Mrs. Lee James, Appellee.
    No. 16842.
    Court of Civil Appeals of Texas. Port Worth.
    June 23, 1967.
    Rehearing Denied Sept. 15, 1967.

      Sidney P. Chandler, Corpus Christi, for appellants.
    Luna & Vaughan, Dallas, Brown, Herman, Scott, Young & Dean and Beale Dean, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Suit in the trial court was by Gertrude O. Sammons Manning and her husband for declaratory judgment. The defendant was Ed E. Sammons, both individually and as Independent Executor of the Estate of Mrs. Lee James. Mrs. James died November 16, 1960. The plaintiffs sought a determination that Mrs. Manning owned a one-quarter undivided interest in the estate of the deceased. Said estate consisted of both realty and personalty.

The defendant sought and obtained a summary judgment upon one or both of two theories; that under the undisputed facts it was conclusive that plaintiff had no interest in the estate of the deceased, and/or that such claim as plaintiff asserted stood released, compromised and settled, or the subject of an accord and satisfaction.

We affirm.

For purposes of determining the propriety of the summary judgment in favor of the defendant we view the evidence before the court as hereinafter narrated.

On or about October 25, 1960 Mrs. James invited interested parties, including plaintiff and defendant, to visit with her and consult concerning her last will and testament. She then had an existent will. As prepared, said will provided that upon her death, that defendant herein, Ed Sam-mons, be appointed independent executor, and that after payment of all just debts that “All the rest, residue and remainder of my estate, of any and every kind and nature whatsoever, and wheresoever situated, whether real, personal or mixed, I will devise and bequeath to my Nephew Ed Sammons in fee simple and absolute.”

At the meeting held about October 25, 1960, Mrs. James orally expressed her will and desire that her estate be divided into four equal parts. She stated that it was her intention to make another will by which provision therefor would be made. One-fourth she intended to leave to Ed Sammons, defendant, and another one-fourth she intended to leave Gertrude O. Sammons Manning, plaintiff. As to Mrs. Manning’s prospective portion Mrs. James desired to provide that the income therefrom be used for the support of Mrs. Manning’s mother and father during their lifetimes. Mrs. Manning and her husband prepared a written statement in which they promised to so use the income from the one-fourth of the estate expected, with additional commitment that they would provide for such by their wills as protection for Mrs. Manning’s parents. The instrument was prepared, signed and dated October 28, 1960, and mailed to Mrs. James.

Subsequent to the conference, held about October 25, 1960, the attorney for Mrs. James prepared a rough-draft of four legal-sized pages for incorporation into the body of the contemplated new will. Such draft was not in the form of a will. It was presented to and approved by Mrs. James. The paragraph which appeared therein relative to the undivided one-fourth interest for Mrs. Manning directed that she receive her interest as trustee for her father and mother, with right to invade the principal if the income was insufficient for the support and maintenance of the father and mother. The paragraph ended with the words: “At the end of the trust term the balance of the property then in the hands of the Trustee shall pass to and vest in the said Gertrude Ophelia Manning, free from the trust provisions hereof if she be living at such time. If she be not so living then such property shall pass to and vest in her child or children surviving and then living * * On the last of the four pages Mrs. James wrote “Mrs. Lee James, Sunday Nove 6th, 1960”.

Mrs. James died before the intended will was executed. Hence the only existent testamentary instrument was that which made the defendant independent executor and left all her property to him.

A family meeting was held a short time after Mrs. James’ funeral. At that meeting those who would have benefitted had Mrs. James executed the newly contemplated will, including plaintiff Mrs. Manning, received assurances from the defendant that he desired a distribution of the estate be accomplished so as to conform to the desires previously expressed by Mrs. James. This pleased the plaintiff and apparently all the others interested. It was orally agreed by all that the defendants would have the existent will probated, and that he would administer the estate as Independent Executor. Defendant agreed that each would eventually receive from his hands the interest the deceased had intended and for which the new will would have provided.

The existent will was probated, and the judgments and orders of the Probate Court pursuant thereto became final. During this period and thereafter, there was litigation by the relatives of Mrs. James’ deceased husband who were attempting to establish an interest in the estate. That litigation was finally concluded. As a result, however, there was delay in the anticipated distribution of the various undivided one-fourth interests, including that expected by the plaintiff. About the time such aforementioned litigation was concluded, the defendant began to contend that he was not hound to distribute to the plaintiff the undivided one-fourth interest in the estate which she had anticipated would ultimately he received. His contention, conveyed to plaintiff, essentially denied that there was any promise on his part to distribute one-fourth to her, but that in any event there was no legal basis under which he was compelled to make such distribution.

Obviously, it was somewhat of a shock to the plaintiff to receive the news of defendant’s attitude. The frequent communications she had received from the defendant for more than two years bore tenor and import, either expressly or impliedly, which indicated that she would ultimately receive the expected undivided one-fourth once the aforementioned litigation came to an end. There had also been representation made concerning initiation of action by defendant in the drawing up of a trust instrument under provisions of which plaintiff’s obligation would be stated relative to use of income from her portion — for her parents, “Uncle Herman” and “Hattie Sale”.

We find nothing in the circumstances, however, which would operate to the benefit of the plaintiff under any principle of estoppel. It was not pleaded. See the chapter on “Estoppel” in 22 Tex.Jur.2d p. 659, et seq.

Following is the letter which brought defendant’s new position to the attention of the plaintiff:

“ED E. SAMMONS

“1029 Elm Street

“Dallas, Texas

“May 5, 1964

“Mrs. J. R. Manning

“519 West Lee Street

“Kingsville, Texas

“Dear Gertrude:

“After many months of various problems, delaying the handling of Aunt Lee’s

Estate, I am finally in a position to advise you of the final decision and disposition of the Estate that has been reached by the Estate’s attorneys, accountants and myself. It is my desire to carry out the wishes of Aunt Lee as expressed to me and to Mr. A. H. McCulloch, Attorney for the Estate.

“There were many unforeseen complications that were created by the suit against the Estate, by the family of Uncle Tom, which suit took considerable time and money to dispose of. After the settlement of this suit, we then paid the Internal Revenue the Federal Estate Taxes. Upon submission to the State of Texas the State Inheritance Tax, the State Comptroller disallowed and refused to recognize any other beneficiary other than myself. This decision was contested by our attorneys, and we received the second refusal which then increased the State of Texas’ Inheritance Tax by a considerable amount.

“Upon applying to the Internal Revenue Department for further ruling regarding the distribution of this Estate through our accountants, we have been further advised that any properties given by me to anyone else would be treated as a gift and would, therefore, involve considerable Gift Tax.

“It is now very apparent due to the above reasons set forth, that the handling of the property under any trust arrangement would and could not meet the wishes of Aunt Lee for the use and enjoyment of her Estate by those of us whom she wished to be remembered in a manner she has expressed to me on many occasions.

“Enclosed you will find a statement of assets expressed in cash values for possible distribution of the Estate as of November 16, 1960. You will note that the total Estate amounted to $168,855.56, after deducting specific legacies in the amount of $21,-769.75; this left the total of $147,085.81 before additional Estate expenses. This, of course, divided equally would be $36,-771.45. After applying specific legacies and other charges as set forth in the enclosed statement, there is a balance to be distributed, in the amount of $78,775.74.

“Upon the advise of the Estate’s accountants and attorneys, I have been advised that Bonnie and I together, jointly, could give up to $6,000 per year to an individual without incurring further Gift Tax liability. After taking all of these factors into consideration, it is my decision and intention to divide equally the portion that would go to Uncle Herman, Aunt Lee’s brother; and you, as Herman’s daughter; and your mother, Uncle Herman’s first wife, the amount of $19,718.78, as shown by the enclosed statement. Fifty per cent of this amount, being $9,859.39, will be given by Bonnie and me, jointly, to you and your mother. The other fifty per cent, in the same amount, will be given to Uncle Herman.

“Upon receipt of the enclosed copy of this letter, with the signed acknowledgement at the bottom, a check payable to you and your mother, jointly, in the amount of $9,859.39, will be forwarded to you.

“Love,

“/s/ Bonnie B. Sammons

“/s/ Ed E. Sammons

“Ed and Bonnie

“EES :gw

“Enc.

“Upon receiving the payment of $9,859.39, evidenced by check, in such amount payable to your joint order, such being the gift being made by me and my said wife, Bonnie Sammons, to you and your mother, Hattie Sale, that you acknowledge that you have no claim of any character against me, individually or as independent executor of the estate of Mrs. Lee James, deceased, nor in the property which belonged to the said Mrs. Lee James, or to her estate.

“Accepted by:

“Ophelia Gertrude Manning

“Mrs. Hattie Sale”

A similar letter went to “Uncle Herman”, father of the plaintiff. He accepted the $9,859.39 offered to him. About two months later plaintiff and Mrs. Sale, her mother, executed and returned the instrument appended to defendant’s letter of May 5, 1964 and defendant paid them $9,-859.39. However, in her pleadings, plaintiff alleged: “Plaintiff, Gertrude O. Sam-mons Manning, says that the sum of money she received as a ‘gift’ from Ed E. Sammons and wife Binnie Sammons on about June 6, 1964, was in fact less than one-fourth of the cash on hand, stocks, bonds, jewelry, furniture, income from the estate, etc. of the Estate of Mrs. Lee James, deceased, and was actually due her out of the estate as her interest in said items and nothing more than her interest in such items. Although she has been at all times entitled to such sum as her interest in the above named items of the said Estate of Mrs. Lee James, deceased, she has kept such sum of money in tact on deposit in KINGSVILLE FIRST SAVINGS & LOAN ASSN at Kingsville, Texas. As of June 30, 1966, the amount of the sum with interest is $11,063.92 if necessary will be and is tendered into the court for disposal by the court as equity and justice may require.” As heretofore stated, the plaintiff’s prayer is for a declaratory judgment and not to have set aside that which defendant relies upon as a release and as accord and satisfaction.

We have already mentioned the fact that before the death of Mrs. James, the plaintiff and her husband prepared a statement in which they promised to use the income from one-fourth of the James estate as desired by her, and to make their wills to so provide in the event they predeceased their parents, “Uncle Herman” and Hattie Sale. It is plaintiff’s contention that Mrs. James’ receipt and retention thereof constituted an oral acceptance of a written contract, hence binding upon her. However, there is no written instrument which constitutes, refers to, or mentions a contract of any sort, nor can a contract be created by construction. The alleged contract would be unenforceable under the State of Frauds (which was plead) in any event for lack of a written memorandum, since real property is involved. Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147 (1937); Arnold v. Starke, 292 S.W.2d 887 (Texarkana Civ.App.1956, error refused).

Concerning the alleged agreement of all the persons interested in the estate of the deceased, at the family mating held right after Mrs. James’ funeral, it is to be remembered that testatrix’ existent will was not one under which anyone other than the defendant would receive anything — provided he was living at time of the testatrix’ death. In view thereof nothing agreed upon by or with any other, specifically one such as the plaintiff herein, would be binding and enforceable. It would only be between “beneficiaries” that agreement for a distribution of the estate of a decedent in a manner other than the provision therefor made by will would become enforceable, no others having an interest which would be a proper subject to a compromise and settlement of the respective claims. 61 Tex.Jur.2d p. 345, “Wills”, Sec. 219, “(Compromise and Settlement Agreements) — In general”; see also the discussion in Robbins v. Simmons’ Estate, 252 S.W.2d 970 (Galveston Civ.App., 1952, writ ref. n. r. e.).

In any event, however, plaintiff stood idly by — trusting defendant — when the order and decree in probate of the testatrix’ estate became final. Necessarily, therefore, her claim would be a collateral attack upon the judgment rendered by the County Court, one which may not be entertained in the current proceeding.

Plaintiff’s constructive trust theory necessarily must fail because the very right she asserts is one which arose because of the defendant’s manifestation of an intention to create it. As an express trust the asserted right of the plaintiff must fail because her claim involves a right to real property and there was no written memorandum, a necessity to the effectual creation of an express trust thereon. Vernon’s Ann.Tex.Civ.St. Tit. 125A, “Texas Trust Act”, Art. 7425b-7, “Requisites of a trust”.

Finally, we have arrived at the conclusion that plaintiff’s claim must fail because the evidence- before the court conclusively established that her claim stood released, compromised and settled when she accepted the $9,859.39, which was the subject of discussion in defendant’s letter to her on May 5, 1964.

Necessarily, plaintiff contends that she was entitled to an undivided one-fourth of the Estate of Mrs. James, deceased, and that the amount paid to her was out of said estate and was less than such undivided one-fourth. Furthermore, that the $9,859.39 was a part of said portion due and owing and as such she had the right to receive the same and apply it upon the entire amount to which she was entitled without creating any impediment to her claim of the balance owing. In other words, she treats the situation as though there was a liquidated sum indisputably due and owing, with a part only tendered and received. Hence, according to plaintiff, its receipt would be in extinguishment merely of such part. If she was correct it would not be proper to consider the $9,-859.39 as consideration sufficient to support release of that entire claim.

Indisputably established in the record before the court, however, was the fact not only that there was a dispute between the parties over whether plaintiff was legally entitled to anything, but furthermore, if so entitled, whether she was entitled to as much as a liquidated amount, as the $9,-859.39. A matter of dispute involved the matter of specific bequests desired to be incorporated in the testatrix’ contemplated will which we ignored in the statement of facts previously made. Concerning such the defendant asserted that Mrs. James desired their distribution and that he had accordingly made distribution according to her wishes. Plaintiff contends that there should have been no such distribution and that to do so was no part of Mrs. James’ desires. Indeed, plaintiff was contending during such period that as a part of her entitlement she should receive an interest in real estate, the value of which in money, was never agreed. Money, in the place and stead of real or other property, could only be considered as part of a liquidated amount or part of a liquidated claim if there was an antecedent agreement of the parties thereupon, for it would be something other than or different from that which the claimant considered himself entitled. A release under such circumstances is the proper subject of an accord and satisfaction. 1 Tex.Jur.2d, p. 207, “Accord and Satisfaction”, Sec. 1, “Definitions”.

Judgment is affirmed.