text:
    CITY OF IRVING, Texas, Appellant, v. Carl B. CALLAWAY et al., Appellees.
    No. 16093.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 21, 1962.
    Rehearing Denied Jan. 11, 1963.

      C. J. Taylor, Jr., City Atty., and Wells & Power, Irving, for appellant.
    Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellees.
   WILLIAMS, Justice.

Carl B. Callawpy, Edward Marcus, Morris E. Moore, Bruton Orand, Rae E. Skil-lern and Jack Wyatt, as original plaintiffs, brought this suit against the City of Irving seeking a temporary restraining order, temporary injunction, and permanent injunction, restraining the defendant City from proceeding further with a “First Reading” annexation Ordinance which plaintiffs allege to be void. The Ordinance No. 625, was enacted on first reading on July 28, 1960. The Ordinance attempted to annex approximately 40 square miles of land situated in Dallas and Denton Counties. Plaintiffs were property owners and residents in the area described in said Ordinance No. 625 and they allege that the purported Ordinance of annexation was invalid and void ab initio for the reasons, inter alia, that such Ordinance included an area already within the corporate limits of another municipal corporation and also that the property described in such Ordinance was not adjacent to and contiguous with the existing corporate limits of the City of Irving, Texas. After the suit was filed James Frady, and approximately 40 other property owners in the area, filed a plea of intervention, adopting the allegations of plaintiffs’ petition. Temporary restraining order was issued and when the matter came on to be heard on temporary injunction the parties stipulated that the hearing should be on the merits for permanent injunction. Following a non-jury trial the court rendered judgment in favor of plaintiffs and intervenors permanently enjoining the City of Irving from taking any further action with reference to the purported annexation Ordinance No. 625. From that judgment the City of Irving brings this appeal.

Appellant’s primary attack upon the judgment of the trial court (as contained in its first four points on appeal) is based upon the proposition that this suit is one that must be brought in the nature of quo warranto proceeding by the State of Texas and that since appellees do not have the legal capacity to sue for the relief sought, such action should have been dismissed. Appellant presented this defense to the trial court through the medium of a motion for summary judgment, motion to dismiss, motion to abate, as well as special exceptions, all of which were overruled.

Both parties agree that this action constitutes a collateral attack upon the inchoate annexation ordinance passed by the City of Irving. The sole question, therefore, is whether such a collateral attack may be made by private citizens, as was done here, or whether such action must be brought in a nature of quo warranto action pursuant to Art. 6253, Vernon’s Ann. Civ. St.

After a careful review of many cases dealing directly with the question we are of the opinion that the law of Texas is well settled that when objections are leveled to an annexation Ordinance relating to irregularities, or which would make it voidable only, same will not support a collateral attack and must be raised only by quo war-ranto. We think it equally well established that when an annexation ordinance is attacked on grounds which are alleged to make the action of the municipality entirely void then such action may be instituted by any person or persons affected by such void ordinance. The rule is succinctly stated in 30-A Tex.Jur. § 99, pp. 111-113 as follows:

“The validity of an annexation by a city cannot be collaterally attacked in a suit by an individual where the city, in attempting to annex territory, acts under authority conferred by law or its charter, and thereafter assumes and exercises authority over the territory attempted to be annexed; such annexation may be questioned only by a direct suit in the nature of a quo warranto or in a proceeding to which the State is a party. However, the act of extension or annexation is subject to collateral attack by anyone, whenever and wherever its validity is called in question, where it is absolutely void because wholly beyond the powers of the municipality — that is, an act not authorized by law or color of law.”

Our Supreme Court announced this rule of law in the early case of Lum v. City of Bowie, Tex., 18 S.W. 142 (1891) involving an attempt of annexation which was attack by private citizens. Holding that it was not necessary to bring the action in the nature of quo warranto proceeding, the Supreme Court said:

“The proceedings by means of which it was attempted to annex the land of appellants were, we think, void, and not mere irregularities, and the rule is familiar that void acts may be questioned collaterally.”

This rule has been consistently followed by Texas cases to the present time. Waco v. Higginson, Tex.Civ.App., 226 S.W. 1084; City of Houston v. Magnolia Park, Tex.Com.App., 276 S.W. 685; Kuhn v. City of Yoakum, Tex.Com.App., 6 S.W.2d 91; Hunt v. Atkinson, Tex.Com.App., 12 S. W.2d 142; Grisham v. Tate, Tex.Civ.App., 35 S.W.2d 264; Town of Griffing Park v. City of Port Arthur, Tex.Civ.App., 36 S.W.2d 593; City of Port Arthur v. Gaskin, Tex.Civ.App., 107 S.W.2d 610; City of Galena Park v. City of Houston, Tex.Civ. App., 133 S.W.2d 162; Lefler v. City of Dallas, Tex.Civ.App., 177 S.W.2d 231; City of Pelley v. Harris County Water Control, etc., Tex.Civ.App., 195 S.W.2d 241; Phillips v. Odessa, Tex.Civ.App., 287 S.W. 2d 518; State ex rel. City of West Orange v. Orange, Tex.Civ.App., 300 S.W.2d 705 and Forbes v. City of Houston, Tex.Civ. App, 304 S.W.2d 542.

Such being the rule we look to appellees’ pleadings to determine the invalidity asserted. The two principal grounds charging the attempted annexation ordinance void ab initio were that (1) such ordinance attempted to annex territory within the corporate limits of another municipal corporation, and (2) that same attempted to annex property which is not adjacent to the corporate limits of the City of Irving.

The right of the City of Irving, a Home Rule City, to annex any territory is derived from Art. 1175, § 2, V.A.C.S., and its own charter. Perforce these authorities the City of Irving has the right to annex territory but, as said by the Supreme Court in City of Houston v. City of West University Place, 142 Tex. 190, 176 S.W.2d 928, “The only limitation on the city’s power to annex additional territory is that it shall be adjacent thereto and not a part of any other municipality * * See also City of El Paso v. Town of Ascarate, Tex.Civ.App, 209 S.W.2d 989; Town of Griffing Park v. City of Port Arthur, Tex. Civ.App, 36 S.W.2d 593; Port Arthur v. Gaskin, Tex.Civ.App, 107 S.W.2d 610; City of West University Place v. Bellaire, 198 S.W.2d 766; Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134 (S.Ct.); Pan American Production Co. v. City of Texas City, 157 Tex. 450, 303 S.W.2d 780; Pitzer v. Abilene, Tex.Civ.App, 323 S.W.2d 623.

The foregoing cases are direct authority for the proposition that where an annexation ordinance includes territory already incorporated within another municipality same is wholly void and not merely voidable. It has also been held that if the attempted annexation ordinance includes a part of the territory already covered by an annexation ordinance of a different municipality, then the attempted annexation is invalid as a whole and the ordinance may not be reformed by judicial action. American Mfg. Co. of Texas v. City of Fort Worth, Tex.Civ.App, 314 S.W.2d 335.

In the light of these authorities, and the uncontroverted facts presented here, we are of the opinion that appellees’ suit challenging the purported annexation Ordinance No. 625 of the City of Irving clearly demonstrates facts which would declare said inchoate annexation ordinance to be void ab initio, and not merely voidable for irregularities, so as to justify the bringing of such suit in the nature of a collateral attack rather than directly through the medium of quo warranto proceedings. Appellant’s points one through four are overruled.

The trial court, in its judgment, found that the territory embraced by the proposed annexation Ordinance No. 625 was not adjacent to the City Limits of the City of Irving and, therefore, such ordinance was void. By its fifth point of error, appellant assails this finding, contending that such finding is not supported by the evidence. Art. 1175, § 2, V.A.C.S., authorizes Home Rule Cities to annex additional territory “lying adjacent to said city.” The Charter of the City of Irving, which limits the power of the appellant, provides for the extension of the boundary limits and the annexation of additional territory “lying adjacent to the city.” It is stipulated in this record that the area described in Ordinance No. 625 is not contiguous to any land annexed to the City of Irving by final reading, nor to the original City Limits. The record reveals that there is a space of approximately six and one fourth miles between the nearest area contained in Ordinance No. 625 and, any land finally annexed to the City of Irving, The record further reveals that the land encompassed by the proposed Ordinance No. 625 is adjacent to territory described in Ordinance No. 336, embracing a large area of land, but Ordinance No. 336 itself is a “First Reading” Ordinance. It is further undisputed in this record that the area encompassed by “First Reading” Ordinance No. 336 is separated from the original City of Irving by an area encom-pássed within Ordinance No. 176, likewise “First Reading” Ordinance, and also attacked as being void on its face in that it describes no identifiable territory because it does not completely close its territory, leaving a gap of about five and one half miles between its points of beginning and ending.

Appellant attempts to justify the attempted annexation on the theory that it is sufficient that such proposed annexed territory be adjacent and connect the permanent territory of the City by an Ordinance “First Reading”. Appellant cites us to no cases holding this and we have been unable to find any. It is fundamental that territory does not become a part of a City, or is to be considered within its boundary limits, until its annexation is finally accomplished. “First Reading” is merely the initial step of leading towards annexation and does not, in itself, effect annexation. Appellant further contends that the term “adjacent” as used in the annexation statute and the Charter of the City does not require the property to be actually touching, but merely “close or near by” or “close or contiguous, but not touching” “near” or “close”. Broun v. T. & N. O. Ry. Co., Tex. Civ.App., 295 S.W. 670; Hanifen v. Armi-tage, 117 F. 845. In those cases it is indicated that the term “adjacent” may have various meanings and various circumstances. However, we have been unable to find any Texas cases which would indicate, even remotely, that a gap of more than six miles of territory would be considered “adjacent” within the meaning of the statute and charter. We have been unable to find any Texas cases upholding an annexation of property not contiguous to the existing City Limits. In the case of City of Waco v. Higginson, Tex.Com.App., 243 S.W. 1078, the court construed the term “adjacent” in an annexation statute as the equivalent of “contiguous”. See also City of Wink v. Wink Gas Co., Tex.Civ.App., 115 S.W.2d 973; City of Port Arthur v. Gaskin, Tex.Civ.App., 107 S.W.2d 610; Hall v. Gulf Ins. Co. of Dallas, Tex.Civ.App., 200 S.W.2d 450; Pan American Production v. Texas City, Tex., 303 S.W.2d 780; Hillman v. City of Pocatello, 74 Idaho 69, 256 P.2d 1072; Village of Niobrara v. Tichy, 158 Neb. 517, 63 N.W.2d 867; Jones v. City of Chadron, 156 Neb. 150, 55 N.W.2d 495; In re Saddler, 142 Pa.St. 511, 21 A. 978; and 37 Am.Jur. Municipal Corporations, § 27. There being ample evidence in this record to support the finding of the trial court that the area sought to be annexed is not “adjacent” to the City of Irving, appellant’s fifth point is overruled.

By its sixth point appellant attacks the finding of the trial court to the effect that Ordinance No. 625 is invalid and void ab initio for the reason that it purports to include therein territory which is already within the corporate limits of another municipal corporation, to-wit: the Town of Renner, Texas. By stipulation, it was agreed that Irving City Ordinance No. 625 purports to include certain land covered by a purported annexation ordinance of the Town of Renner passed before the passage on “First Reading” of Irving City Ordinance No. 625. Appellant makes no serious effort to deny that the Ordinances overlap, being content to claim that the Renner Ordinance was invalid. This appellant cannot do so since such would amount to a collateral attack on the validity of the Renner Ordinance, and the grounds sought to be asserted were such that they could only be asserted against Renner in quo warranto proceedings. As pointed out by appellees in their brief, even if Irving was permitted to make a collateral attack on the Renner Ordinance, any defect of the Renner Ordinance has been cured by a validating act of the Texas Legislature, Ch. 19, H.B. No. 29, Vernon’s Texas Sessions Laws, 56th Legislature, 3rd Called Session, p. 430. The law is well settled in Texas that an ordinance attempting to annex property in another municipality is absolutely void and subject to collateral attack by anyone whose interests are affected. City of Galena Park v. City of Houston, Tex.Civ.App., 133 S.W.2d 162; City of El Paso v. Town of Ascarate, Tex.Civ.App., 209 S.W.2d 989; Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134; City of West Orange v. Orange, Tex.Civ.App., 300 S.W.2d 705; American Mfg. Co. of Texas v. City of Fort Worth, Tex.Civ.App., 314 S.W.2d 335. Appellant’s sixth point is overruled.

By its seventh point, appellant asserts that the trial court erred in holding that the annexation ordinance was subject to judicial review on the question of abuse of discretion by a legislative body, relying upon the authority of City of Houston v. City of West University Place, Tex., 176 S.W.2d 928 (S.Ct.). We have no dispute with this proposition of law, nor the authorities cited in support thereof. However, the point must be overruled for the reason that the judgment of the trial court is not based upon the theory of “abuse of discretion”. As stated in the discussion of preceding points, the judgment of the trial court is based upon the finding that the purported ordinance No. 625 is void ab initio because (1) it attempts to annex property already annexed by another corporation; and (2) it attempts to annex property which is not adjacent to the limits of the City. Appellant’s seventh point is overruled.

By its eighth and ninth points on appeal brief together, appellant contends that no damage was proved by appellees, nor was there any evidence of a cloud on the title of appellees’ real estate within the area, or, if such had been established would amount to damnum absque injuria.

These points are found to be without merit, and are overruled. The judgment in this case against appellant does not incorporate an element of damages. Ap-pellees, in their pleadings, and supported by proof, showed that the purported ordinance cast a cloud on their use and enjoyment of their property and interfered with the use and development of the property, especially with reference to possible future sales thereof. This demonstrated a showing of threat of injury as a predicate for injunc-tive relief. We find ample evidence in this record to support the judgment of the trial court that injury was threatened and the existence of the purported ordinance and the prospective annexation into the City of Irving had adversely affected the value of appellees’ land and would continue to do so.

We have carefully considered appellant’s tenth, and last point of error and finding the same to be without merit, the same is overruled.

Having carefully considered all of appellant’s points on appeal, and finding that they are without merit, same are overruled, and the judgment of the trial court is, in all things, affirmed.

Affirmed.

YOUNG, J., not sitting on original disposition of case; BATEMAN, J., not participating on rehearing.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    RODMAN SUPPLY COMPANY, Appellant, v. H. F. PARKER, Appellee.
    No. 5543.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 14, 1962.
    Rehearing Denied Dec. 19,1962.
    William W. Blanton, Odessa, for appellant.
    S. M. Swearingen, McCamey, for appel-lee.
   CLAYTON, Justice.

Appellee H. F. Parker filed suit against appellant Rodman Supply Company, a corporation, charging the latter with the willful, malicious and fraudulent conversion on January 2, 1958 of a quantity of well casing which appellee alleged he owned and of which he was entitled to immediate and exclusive possession, which casing had been left by appellee with one Bewick Trucking Company for safekeeping. Suit was for the actual value of the casing and punitive damages. Upon findings of the jury on special issues, appellee was granted judgment for the value of the casing and $500.00 punitive damages.

Appellee was a drilling contractor and was engaged in drilling a well for one E. B. Hickman. During the drilling operations, in May of 1957 (probably May 8, 1957), Hickman had acquired the casing from appellant corporation which shipped it to the well site at Big Lake. On May 9, 1957 Hickman executed to appellee what purported to be a mechanic’s and materialman’s lien on the casing. This instrument recited that under the terms of the drilling contract between these parties Hickman was to place in escrow $12,000.00 to guarantee payment to appellee for such drilling, but which deposit in escrow had not been made; that “to induce Mortgagee to proceed with the drilling of such well prior to the placing of such sum in escrow and to assure Mortgagee that he will be paid for such drilling” Hickman agreed to make the escrow deposit on or before thirty days from the date of the instrument and “that failure to do so, shall, at the option of the Mortgagee, make this mechanic’s lien subject to foreclosure.” The escrow deposit was never made.

Appellee testified that after the execution of this instrument Hickman “had disappeared and been gone better than thirty days and I had tried several times at several different places to contact him.” Under letter dated May 28, 1957, appellee wrote one W. N. or Bill Wright, the owner and operator of Bewick Trucking Company at Big Lake and requested the removal of the casing from the well site to the trucking company yard “for storage. Not to be moved out of your yard without a written order from me.” The record reflects that Bewick took over the casing in response to this letter on June 10, 1957.

On June 19, 1957 appellee sent a registered letter to Hickman at his last known address notifying the latter that appellee had taken possession of the pipe. Later on that same day, however, appellee located Hickman at his home in Odessa and talked to him concerning the pipe. At that time Hickman turned over to áppellee three “pipe delivery tally” sheets on Rodman Supply Company forms containing a description of the casing that had been delivered to Hickman. Appellee asserts that Hickman told áppellee that the pipe was his (appellee’s) but when asked for a bill of sale to the pipe Hickman replied, “You don’t need one. You have the lien and that should be sufficient for you to take possession of (the pipe).” The following day, June 20th, Hickman wired appellee to plug the well. On the same day appellee filed for record the instrument granting the mechanic’s and materialman’s lien on the pipe and this instrument was recorded the following day, June 21, 1957. Actual notice of this instrument was given to Kenneth D. Hammans, manager of the pipe department of Rodman Supply Company, by appellee in the early part of August.

W. N. Wright of Bewick Trucking Company testified that on or about January 2, 1958 he received a telephone call from Hammans requesting that the pipe be turned over to that company. Knowing that there was some controversy as to the ownership of the pipe, Wright asked Hammans specifically if the pipe was Rodman’s or if it belonged to appellee Parker. He was assured, Wright testified, that “the controversy had been settled, that an agreement had been reached with Mr. Parker and that the pipe belonged to Rodman Supply Company.” On the basis of this assurance and a receipt for the pipe signed by Rodman’s driver the pipe was released and loaded on Rodman’s trucks that were sent for it.

Hammans’ version of this conversation with Wright was that on December 4, 1957 he had received a letter from Hickman to the effect that the latter understood the pipe was in the Bewick yard, the letter containing this paragraph:

“You have my complete authority to move the pipe back to your Odessa yard or do with it as you see fit under the circumstances. The pipe was wrongfully moved to the yard in the first place unless you all authorized it in the first instance as I did not. I did not know that it was moved there until sometime after someone told me someone moved it there.”

This letter was prepared and signed in the presence of Hammans, Hickman and the latter’s lawyer, and at a time when Ham-mans was trying to collect from Hickman for the ' pipe. After receiving the letter, Hammans called Wright on the telephone. As to that conversation, Hammans’ testimony is as follows:

“Q. What did you tell Mr. Wright, ■ sir?
“A. I called Mr. Wright and told him that I had gotten a letter and that we had gotten permission to pick that pipe up out of his yard at Big Lake.
“Q. Were you referring to this letter ?
“A. The one from Hickman, right.
“Q. Did you go into details about the letter, with him?
“A. I don’t remember. I don’t think I did. I told him that I had this letter and that we had gotten things straightened out and was going to pick up the pipe. (Emphasis supplied.)
“Q. Did you tell him that you had gotten Mr. Parker’s permission to do ' this?
“A. No, sir.
“Q. And Mr. Parker’s lawyer’s permission?
“A. No, sir.”

Hammans further testified that he had shipped pipe before to Hickman “and he had come in the day or the next day following and paid for it, come back to the office to do that, and we went ahead and shipped it this time.” Hammans knew where the well site to which the pipe was delivered was located. He contacted Hickman the' latter part of June of 1957, and told Hickman he would have to pay for the pipe or make some kind of a deal to pay for it, or the pipe would have to be recovered. Hammans talked to Hickman again in August or September of 1957, and finally received from him the letter of December 4, 1957, on the basis of which appellant Rod-man Supply took possession of the pipe.

Special Issue No. 1 as submitted to the jury inquired:

“Do you find from a preponderancé of the evidence that the Plaintiff Parker was in possession of, or entitled to the possession of the 5½ inch casing in question on the 2nd. day of January, 1958?”
To which the jury answered, “We do.”

Under Special Issue No. 2 the jury determined the value of the casing.

Under Special Issue No. 3 the jury found that the defendant Rodman Supply Company, in taking the casing, acted intentionally, willfully, maliciously and fraudulently, and that such act was one in wanton disregard of the rights of plaintiff; and by Special Issue No. 4 exemplary damages in the amount of $500.00 were awarded plaintiff. Judgment was entered on the verdict.

Appellant directs sixteen points of error against Special Issue No. 1, including Points of Error Nos. 1 through 13, and Nos. 21, 22 and 23. All of these points of error have been considered, but we deem it unnecessary to discuss them all. Point 2 sets out that Special Issue No. 1 presents a question of law in asking the jury whether Parker was entitled to possession of the casing on January 2, 1958. In connection with the issue as submitted, the court defined the word “possession” as “the detention and control, or the manual or ideal custody of anything which may be the subject of property, for one’s use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place and name.” If the inquiry to the jury as to appellee’s being entitled to possession of the casing has the vice of being a question of law or if Special Issue No. 1 as submitted presents a mixed question of fact and law, in either of which events it would be subject to objection (41B, Tex.Jur. 500, Trial — Civil Cases, ¶ 404); (3 McDonald, Texas Civil Practice 1051, Jury Trial: Charge, |f 12.03), we feel that the definition of the word “possession”, while perhaps somewhat unwieldy, cures any objection and renders the issue one of fact for the jury. Home Ins. Co. of New York v. Young, 97 S.W.2d 360, Syl. 10 (Tex.Civ.App., err. dism.).

Nor do we consider Special Issue No. 1 as being duplicitous. (3 McDonald, supra, ¶] 12.18) (Rule 277 Texas Rules of Civil Procedure).

“The rule is well established that an issue is not to be condemned as multifarious or duplicitous merely because it groups more than one fact element therein, so long as it involves only one ultimate or controlling issue * * Duff v. Matthews, 300 S.W.2d 679 (Tex.Civ.App., reversed on other grounds [158 Tex. 333, 311 S.W.2d 637]), citing Austin v. De George, 55 S.W.2d 585 (Tex.Civ.App., err. dism.) and other authorities.

After a careful review of the other points of error directed toward Special Issue No. 1 we find no error, and all such points are accordingly overruled.

Points of Error Nos. 14 through 18 are directed toward Special Issue No. 3 which inquired whether, in taking the pipe, the appellant acted intentionally, willfully, maliciously and fraudulently, and in wanton disregard of appellee’s rights, which issue was answered in the affirmative by the jury. Points 19 and 20 attack the award of punitive damages on the grounds that there was no evidence to show that appellee was entitled to such damages and that submitting such issue to the jury in Special Issue No. 4 submitted a question of law.

Appellant complains that the evidence does not show that one of appellant’s agents acting under authority from appellant did something which would justify awarding punitive damages. Appellant was a corporation. Hammans, who recovered the pipe from the yard where it was being stored by appellee, was the manager of appellant’s tubular or pipe department. In King v. McGuff, 149 Tex. 432, 234 S.W.2d 403, our Supreme Court held that:

“Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, * * *
“(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
“(d) the employer or a manager of the employer ratified or approved the act.”

The action of the manager of appellant’s pipe department in recovering the possession of the pipe from Bewick, appellee’s bailee, justifies the award of punitive damages against appellant, if the other essential elements governing such damages are present. There can be no question but that Hammans acted intentionally and willfully in calling Bewick and securing possession of the casing. Furthermore, it can be said that there is present an element of malice and fraud in the statement by Hammans to Bewick that “we had gotten things straightened out” at a time when Hammans, in addition to constructive notice, knew from conversations with appellee that the latter was vigorously asserting a claim to the pipe and negotiations had been going on to “work out something” with regard to the pipe.

THe question now arises: Did appellant, through its manager, Hammans, perform some act which was “in wanton disregard of appellee’s rights ?” Appellant had delivered the casing to Hickman, placing the latter in possession thereof. Appellant also delivered to Hickman the “pipe delivery-tally” sheets covering the casing. Appellant had clothed Hickman with these in-dicia of ownership, and made no effort to recover the casing from the date of its delivery to Hickman on or about May 8, 1957 until possession was recovered through what we may term a misrepresentation on January 2, 1953. During these seven or eight months (in which the pipe remained unpaid for) appellant instituted no legal process to recover the pipe or to protect itself by following the lien procedure provided for m Articles 5473 et seq., Vernon’s Ann. Civ. St. It is not shown that appellant even 'went upon the well site to which the pipe was delivered or gave any notice to appel-lee, the driller, that it did not consider Hickman the owner of the pipe, even though Hammans knew where the well site was iocated. Appellánt, through Hammans, had constructive notice of appellee’s lien on June 21, 1957, and actual notice from appellee in.August, 1957; hut it did nothing to protect its interest or legally contest the appel-lee’s asserted lien on the casing. It is said in Sackenreuther v. Winston, 137 S.W.2d 93 (Tex.Civ.App., writ refused):

“Our courts have uniformly held that where one of two persons, equally entitled to consideration, as far as their purposes are concerned, must suffer from the delinquency of a third, the loss more properly falls upon him, who, having readily at hand the means of protection, has failed to avail himself of them.”

We feel that this language has peculiar applicability to the facts of the case at hand and pursuant thereto we overrule appellant’s Points of Error Nos. 14 through 18.

In comment on Points of Error 19 and 20, we find ample evidence in the record to support the jury’s finding in awarding the appellee exemplary damages. Nor do we feel that such an issue constitutes a question of law. Texas courts have long submitted such an issue to the jury. (26 Tex.Jur.2d 121, ¶[ 136). The trial court defined “Exemplary Damages” as those which are allowed “as a punishment for the party responsible for a wrong and as an example for the good of the public.” Similar language is employed in the jury charge in Knittel v. Schmidt, 16 Tex.Civ.App. 7, 40 S.W. 507 (writ refused). Points of Error 19 and 20 are overruled.

After a careful analysis of all of the appellant’s points, no error is found, and the judgment of the trial court is affirmed.

MOTION FOR REHEARING

In appellant’s Motion for Rehearing complaint is made that the opinion of this court on Point of Error No. 2 in this cause is in direct conflict with the holding of the Court of Civil Appeals at Houston in the case of A. B. Lewis Co. v. Robinson, 339 S.W.2d 731. Point of Error No. 2 sets out that the trial court’s Special Issue No. 1 - presents a question of law in asking the jury whether Parker was entitled to possession of the casing involved in this litigation on January 2, 1958. The Special Issue No. 1 complained of as submitted to the jury inquired :

“Do you find from a preponderance of the evidence that the Plaintiff Parker was in possession of, or entitled to the possession of the 5½ inch casing in question on the 2nd day of January, 1958?”

to which the jury replied “We do”. In connection with this special issue the court gave a definition of the word “possession”. We held, on the authority of Home Ins. Co. of New York v. Young, 97 S.W.2d 360, Syl. 10 (Tex.Civ.App., err. dism.), that the definition of the word "possession” rendered the issue a fact issue for the jury, and cured any objection to said special issue.

In the A. B. Lewis Co. v. Robinson case, cited by appellant, the Houston Court of Civil Appeals held that “[t]he jury’s finding to Special Issue No. 1, that on February 22, 1957 appellee was entitled to possession of the car, is not a finding of fact but of law, and should be disregarded”. However, there is nothing to indicate from the opinion that the trial court defined the word “possession” or the term “entitled to possession”, and we feel that such circumstance distinguishes the cited case from the case at hand.

Appellant’s Motion for Rehearing is overruled.


author: LANGDON, Chief Justice.

text:
    UNITED BENEFIT FIRE INSURANCE COMPANY, Appellant, v. METROPOLITAN PLUMBING COMPANY. Appellee.
    No. 5563.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 19, 1962.
    Rehearing Denied Jan. 23, 1983.

      Clinton & Shelton, Lubbock, for appellant,
    Peticolas & Stephens, Wayne Windle, El Paso, for appellee.
   LANGDON, Chief Justice.

Appellee, Metropolitan Plumbing Company, was a subcontractor in the construction of an addition to the Cooley Elementary School for the El Paso Independent School District, El Paso County, Texas. The prime contractor in such work, D. W. Austin, d/b/a Austin Construction Company, became bankrupt while owing appel-lee a balance of $3,579.40 for labor and materials furnished the school job under the terms of a lump-sum contract. Appel-lee sued the contractor’s surety, United Benefit Fire Insurance Company, upon a payment bond executed by it as surety for D. W. Austin in compliance with the provisions of the McGregor Act (Article 5160, Vernon’s Annotated Texas Civil Statutes, as amended April 27, 1959). In a trial to the court without the intervention of a jury, judgment was awarded ap-pellee for the sum of $3,579.40, as prayed for, and appellant has appealed.

Appellant rests its appeal upon only three points of error, and contends that this case presents but a single question of law for the court to decide, that being whether or not the appellee fully complied with the “Notice” requirements of the statute when appellee undertook to inform appellant of the claim; or, to state the question another way — is substantial compliance with the statute sufficient?

On the other hand, appellee contends that he fully complied with the requirements of the statute; but if he did not, that appellant waived strict compliance therewith so as to preclude it from asserting discharge from liability under the bond.

For the purpose of clarity the appellant will hereafter be referred to as the defendant or surety, and the appellee as plaintiff.

It is the surety’s contention that the notice or notices of claim furnished it by plaintiff were insufficient, as a matter of law, to satisfy the strict requirements of the statute, and that plaintiff is thereby precluded from any recovery against defendant, as surety, on the payment bond executed by it in compliance with the statute.

The contract upon which the claim here is based was in writing and was for a lump-sum. It was a direct contract between plaintiff and the prime contractor and called for plaintiff to furnish the plumbing and mechanical work on the Cooley school. There is no dispute concerning the performance of the contract, nor of the amount thereon that remained unpaid. It is admitted that plaintiff, under date of February 28, 1961, did notify the surety by registered mail that the sum of $3,579.40 remained unpaid on the sub-contract; also, that at the instance of the surety plaintiff, under date of March 13, 1961, furnished the surety with a sworn notice of its claim. It is further admitted that a third notice of the claim was sent to the surety by plaintiff’s attorney under date of April 28, 1961, and that such notice was received by appellant about May 1, 1961.

Defendant-surety contends that each of the three notices was in some manner defective ; that the first notice was not sworn to; that the second notice did not contain the information requested by defendant and that none of the notices, including the third notice, contained a statement in the language of the statute to the effect that all just and lawful offsets known to plaintiff had been allowed; and further, that none of such notices contained any information showing how much labor or material was furnished by plaintiff month by month during the contract period.

We have been unable to find a case, in which the statute (Article 5160), as amended April 27, 1959, has been construed, and believe this case to be one of first impression. In view of such fact, we deem a more detailed analysis of the statute is required than might otherwise be necessary.

Under the McGregor Act prime contractors on contracts exceeding $2,000 for the construction, alteration or repair of any public buildings or the prosecution or completion of any public work for this state, any department, board or agency thereof; or any municipality of this state, department, board or agency thereof; or of any school district of this state; or of any other governmental or quasi-governmental authority authorized by law to enter into such public works contract, shall be required, before commencing work, to execute two statutory bonds to the governmental authority or authorities for whom the work is to be performed. The bonds required to be furnished are a “Performance Bond” in the amount of the contract conditioned upon the performance of the work, and a “Payment Bond”, also in the amount of the contract. The “Performance Bond” shall be solely for the protection of the governmental authority awarding the contract, and the “Payment Bond” solely for the protection of all claimants supplying labor and material in the prosecution of the work provided for in the contract, for the use of each such claimant.

The statute not only specifies the conditions of the bonds that shall be required of prime contractors on public works, but prescribes the time limits within which “notice” of claims thereon must be given, and specifies the form and content of the “Notice” required of the several classes of claimants for perfecting their respective claims against the contractor’s payment bond, for labor or material supplied by them in the prosecution of the contract work.

Part B, subdivision (a) of the statute pertains generally to all classes of claimants and specifies the time for filing notices of “Unpaid Bills, other than notices solely for Retainages * * *.” It provides that such notice shall be given within 90 days after the 10th day of the month next following each month in which the labor was done or performed or the material was delivered, for which such claim is made. . Notice of such claims shall be in writing and are required to be sent by certified or registered mail, addressed to the prime contractor at his last known business address, or at his residence, and to the surety or sureties. The statute requires that such notices shall be accompanied by the following:

1. Sworn statement of account stating in substance that the amount claimed is just and correct and that all just and lawful offsets, payments and credits known to affiant have been allowed.
2. Amount of any retainages.
3. If claim is based on a written contract, claimant may at his option enclose a true copy of such contract.
. 4. Advising completion or value of ■ partial completion.

Subparagraph (1) subd. (a) of part B relates specifically to content of the notices required of claimants where no written contract exists, and which does not involve a claim for multiple items to be paid for on a lump-sum basis. In such case the notice is required to contain the following'

1. Name of party for whom labor was done or to whom material was delivered.
2. Approximate dates of performance and delivery.
3. Description of labor or materials reasonably identified and generally itemized.
4. Amount due.
5. Copies of invoices or orders, identifying job and destination of delivery.

Subparagraph (2), subd. (a) of part B relates specifically to the content of notices required of claimants in direct contractual relation with the prime contractor where the claim is for multiple items of labor or material to be paid for on a lump-sum basis. In such case the notice is required to contain the following:

1. Name of the party for whom the labor was done or to whom the material was delivered.
2. Amount of contract.
3. Written or oral.
4. Amount claimed.
5. Approximate dates of performance or delivery.
6. Reasonably identifying description of labor or material.

Other provisions of the statute relate to additional notices required of claimants who do not have a direct contractual relation with the prime contractor; to claims for unpaid retainages; penalty for fraudulent claims and matters of venue and other matters not applicable to the facts of this case, and which need not be discussed.

We consider the statute, as amended in 1959, to be highly remedial in nature. It clearly reflects the intention of the Legislature to change the public policy of the state as previously declared by the Supreme Court in its decisions under the former statute, and to provide a simple, direct method of giving notice and perfecting claims of laborers, materialmen and subcontractors on public works, as stated in the emergency clause of the amendment.

It will be noted that many of the requirements of the statute are couched in broad general terms: “stating in substance”, “approximate dates”, “reasonably identifying”, “generally itemized”, “may at his option”, etc., which terms, by their nature, defy a strict construction; while other requirements of the statute are more specific and indicate that the Legislature intended that some of the provisions should be strictly complied with. The rule of liberal construction, however, applies with full force to remedial statutes, and will be accorded the most comprehensive and liberal construction of which it is susceptible in order to accomplish the legislative purpose. 39 Tex. Jur. 273, sec. 145 (and cases cited).

Of the two bonds required by the statute, we are concerned here only with the “Payment Bond”.

Plaintiff contends that the notice actually given satisfies the requirements of the statute ; but, regardless of whether such notice was or was not sufficient, that the surety waived strict compliance with the statute and is thereby precluded from asserting its discharge from liability on the payment bond.

It is well settled that a right or privilege given by statute may be waived or surrendered,, in whole or in part, by the party to whom or for whose benefit it is given, if he does not thereby destroy the rights and benefits conferred upon or flowing to another in or from the statute or other legal or equitable source.

Assuming, for purpose of this opinion only, that the notice actually given by plaintiff was insufficient to meet and satisfy the requirements of the statute—did the surety, by virtue of its acts and conduct, waive strict compliance on the part of the plaintiff with the notice requirements of the statute, so as to preclude the surety from asserting its discharge?

It has heretofore been noted that plaintiff sent, and appellant received, three separate notices relating to plaintiff’s claim for the balance due under the contract. The first notice, under date of February 28, 1961, from the standpoint of timeliness, was given and received within time limitations sufficient under the statute to permit, if necessary, the inclusion of any unpaid claim for labor performed or material delivered subsequent to October 31, 1960. Under the statute, if the claim asserted by the plaintiff included any labor performed or material delivered during the month of November, 1960 (other than for retainages), notice of such claim was required to be given within 90 days after the 10th day of the month next following. Thus, by our calculations, plaintiff had until March 10, 1961, or 90 days from and after December 10, 1960, within which to give notice of its claim, even if such claim did, in fact, include labor or material furnished during the month of November, 1960, as well as subsequent months.

Prior to the filing of any claim, the prime contractor had paid plaintiff $8,000.00 of the contract price, and it is apparent from the record before us that this sum exceeded the value of the labor performed and material delivered up to November 1, 1960. We have concluded, therefore, that plaintiff’s notice of February 28, 1961 was actually given and received by the surety before the time (allowed by the statute) for the giving of a proper notice had expired.

The notice of February 28, 1961 was not sworn to as required by the státute and, in our opinion, failed in other respects to meet the requirements of the statute, if strictly construed. It was in writing however, and was sent to both the prime contractor and to the surety by registered mail. Upon receipt of such notice the surety wrote plaintiff, on March 8, 1961, under the letterhead “United Benefit Fire Insurance Company”, as follows:

“Metropolitan Plumbing Co.
“P. O. Box 3488-Station A
“El Paso, Texas
“Re: Claim No. 16395
“D/A 2/6/61
“Policy No. 853757
“Insured: Austin Construction Co.
“Gentlemen:
“This will acknowledge your claim for material and/or labor in regard to the Cooley School Addition.
“Please he advised that the bonding company has knowledge of their claim and is making a complete investigation and audit of this matter.
“We shall appraise you of our position when such investigation and audit is completed. We anticipate that this will at least take thirty days.
“Very truly yours,
“/s/ Gene Cook
Gene Cook”
“GC :HP
“CC: J. C. Hadsell

Admittedly the surety is not required to protest or object to an act or omission on the part of an obligee which operates to discharge the surety from liability, and the fact that a surety remains passive or silent after learning of such an act or' omission on the part of the obligee does not constitute such acquiescence or consent as to preclude the surety from asserting the discharge. Nevertheless, a defective or improper notice, made before the time for the giving of proper notice has expired, may be held sufficient in the absence of some statutory prohibition, when the notice, by affirmative acts and conduct, creates the impression that the notice given is adequate; the ground most frequently relied upon by the cases being that the notifier has been lulled into a sense of security concerning the sufficiency of his notification and was thus led into failure to give another notification within the time prescribed by the statute. Acts most frequently held to constitute such grounds have arisen in cases where, in addition to the failure to object, there is — on the part of the noticee — a promise to act, or action, in response to the defective notification. 2 Merrill on Notice 412, -jf 890.

In the case at hand, plaintiff alleged that the surety had full notice of plaintiff’s claim and, after having received the notice of February 28, 1961, waived any further notice under the statute by its letter of March 8, 1961, quoted above. The letter itself constitutes a recognition, on the part of the surety, of the continued existence of the relationship; it not only acknowledges receipt of plaintiff’s claim, but states “the bonding company has knowledge of their claim and is making a complete investigation and audit of the matter”. In addition, the surety promises future action on the claim when the investigation and audit is completed, which it anticipates “will at least take thirty days”. The letter contained no hint that the notice actually given was insufficient or defective, and in this case the surety’s failure to object is clearly coupled with a promise to act, or action, in response to the defective notification.

The surety contends that the second notice, although sworn to by plaintiff, was also insufficient because it did not contain all the information requested by the surety. Plaintiff sent its second notice of claim to the surety on March 13, 1961, in response to a letter dated March 9, 1961, written to it by Lyle Adjustment Company on behalf of the surety, in which the adjustment company undertook to advise the plaintiff regarding its claim and to “suggest” that plaintiff follow certain steps, enumerated in the letter, respecting such claim. While we deem it unnecessary to reproduce the letter, we have carefully examined its contents and have concluded that even if the plaintiff had complied with every detail of the enumerated suggestions, such notice still would have been insufficient to meet all requirements of the statute. Our view of the matter is that such letter, with its accompanying instructions (varying as they did from the requirements of the statute) was merely another indication on the part of the surety that notification would not be exacted according to the governing provisions of the statute. We believe, however, that plaintiff’s second notice was sufficient to constitute at least substantial compliance with the instructions contained in the letter.

From what we have said it follows that we are of the opinion that the surety was given actual notice of plaintiff’s claim before the time for the giving of such notice had expired, and that the surety, by its own affirmative acts and conduct, waived any ground of discharge it might otherwise have acquired by reason of any failure on the part of the plaintiff to thereafter give other notice or notices of the same claim in the manner required by the statute.

In the event we are found to be in error in holding that the surety waived the statutory notice required by the governing provisions of the Act; the next question presented by this appeal (assuming there was no waiver on the part of the surety, and that the first two notices were insufficient to satisfy the requirements of the statute) is whether or not the third notice sent by registered mail to the surety on April 28, 1961, and received by it on or about May 1, 1961, was sufficient to satisfy the requirements of the statute.

Since it is undisputed that plaintiff’s claim is based upon a written contract for multiple items of labor or materials to be paid for on a lump-sum basis, wherein plaintiff was in direct contractual relation with the prime contractor, we are of the opinion that the claim (with respect to the contents of the notice required of such claimants) is governed by the provisions of subparagraph (2) subd. (a) of part B of the statute. We have compared the contents of the notice given by plaintiff on April 28, 1961 with the requirements of said subparagraph (2), set forth earlier in this opinion, and believe that each and every requirement thereof has been fully satisfied.

The notice states that the claimant has furnished labor and material in the prosecution of work provided for in a certain contract between D. W. Austin and the El Paso Independent School District; that the claimant has not been paid in full therefor and that the claim remains unpaid; that the name of the party for whom the labor was performed and the material was delivered was and is D. W. Austin, d/b/a Austin Construction Company; that the amount of the contract was and is $10,677.00 plus authorized changes and additions in the sum of $902.40; that the contract was and is written (a copy thereof being attached) ; that the amount claimed is $3,-579.40; that the approximate dates of performance of labor and delivery of materials are from December 1, 1960 to February 1, 1961; that a reasonably identifying description of said labor and material is as follows: “The setting and installation of the fixtures and the providing of the fixtures consisting of lavatories, bowls and water fountains in the Cooley Elementary School”.

We are also of the opinion that part B, subdivision (a) of the statute was satisfied by the notice, at least in the following respects: The notice was in writing and was sent by registered mail, addressed to the prime contractor at his last known business address and to the surety; it contained a statement that the contract had been completed and that the amount claimed included all retainage and retainages applicable to the account under the terms of the contract ; and, as previously mentioned, a copy of the contract was enclosed. In addition, the notice of claim was signed by G. W. Hancock in his capacity as a general partner in plaintiff company, and was accompanied by the following statement of account, sworn to and subscribed by the same G. W. Hancock:

The statute requires that affiant state only “in substance” that the amount claimed is just and correct and that all lawful offsets, payments and credits known to af-fiant have been allowed. The exact language of the statute is not required. We have examined plaintiff’s affidavit and have concluded that the language used therein, while not identical to that of the statute, is to the same effect, and that it is more than sufficient to meet the requirements of the statute.

While it is true that plaintiff, during the performance of the contract, submitted a number of “estimates” which tend to show that the entire contract was substantially completed prior to the last day of December, 1960 — still, the trial court, as the trier of facts, found as a fact that all the labor and material for which the claim was made was performed and delivered subsequent to December 31, 1960, and that the notice of claim and statement of account given by plaintiff on April 28, 1961 was timely given, in that it was within 90 days after the 10th day of the month next following each month in which the labor was done or performed, in whole or in part, or material was delivered, in whole or in part. The court also found, in effect, that plaintiff’s previous “estimates” were exactly what they purported to be — only a rough estimate of the labor performed and material delivered to the date thereof; further, that sub-contractors performing labor and furnishing material under lump-sum contracts generally “over-estimated” the value of the labor performed and material delivered, in order to draw on the contract in advance of the total work actually performed. The record adequately supports the trial court’s findings in such respect and may therefore not be disturbed.

The statute itself requires the claimant to show only the “approximate date or dates” of performance or delivery when the claim is for multiple items of labor or material to be paid for on a lump-sum basis. Therefore, particularly in view of the remedial nature of the statute and the purposes to be accomplished thereby, we are of the opinion that plaintiff properly perfected its claim against the contractor’s payment bond and the surety thereon, and that the judgment of the trial court is correct.

Finding no error, appellant’s points and each of them are overruled, and the judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    J. L. WHITWORTH ESTATE et al., Appellants, v. MANGELS OF TEXAS, INC., Appellee.
    No. 4072.
    Court of Civil Appeals of Texas. Waco.
    Dec. 13, 1962.
    Rehearing Denied Jan. 10, 1963.

      Tom H. Kee, Waco, for appellants.
    Pat Beard, Waco, for appellee.
   TIREY, Justice.

The action is one by a landlord against tenant, brought after end of term of lease, for costs of repair to the leased premises and breach of tenant’s express covenant to repair and to yield up the premises to the landlord in as good condition as same was when entered under the provisions of the lease. (The cause was here on a question of venue. See Tex.Civ.App., 347 S.W.2d 844). The cause was heard by the Court without a jury. The Court entered a take nothing judgment against plaintiffs and taxed the costs accordingly. Plaintiffs perfected their appeal to this Court.

A statement is necessary. The judgment is assailed on what plaintiffs designate as 13 points. (1 and 2) are to the effect that the Court erred in failing to render judgment for plaintiffs under the terms and conditions of the lease for the cost of repairs shown by the undisputed evidence to have been required to repair the damage done to the leased premises before they were yielded up to the landlord at the expiration of the lease, and because the evidence is undisputed that the defendant did not yield the premises to lessor and made no attempt to do so according to the terms of the lease; (3) Because the Court erred in its construction of the lease and in the application of the law to the undisputed facts and in failing to apply the legal measure of damages under this undisputed factual situation. We quote the Findings of Fact and Conclusions of Law:

“FINDINGS OF FACT
“I find that the plaintiffs have not proved the condition of the premises when entered upon by defendant.
“I find that the damages complained of by plaintiff did not occur prior to the expiration of the lease in question.
“I find that the defendant did not hold over beyond the expiration of the lease.
“I find that subsequent to the expiration of the lease the premises were damaged.
“I find that plaintiffs did not prove that the damages complained of occurred prior to the delivery of the key to the premises to plaintiffs’ agent.
“I find that the defendant did not cause any of the damages complained of by plaintiffs.
“I find that plaintiffs failed to prove who caused the damages complained of.
“I find that plaintiffs failed to prove any proper measure of damages.”
“CONCLUSIONS OF LAW
“I hold:
“(1) That plaintiffs must prove the condition of the premises when entered upon by defendants;
“(2) That any damages complained of must have occurred prior to the expiration of the lease or any holding over under the terms of the lease if plaintiffs cannot prove that defendant caused the damages complained of.
“(3) That the plaintiffs must prove either:
“(a) The reasonable market value of the premises before and after the damages complained of, at the time of the expiration of the lease, or any holding over, or
“(b) The cost of repairs for the damages complained of at the time of the damages complained of, less depreciation caused by ordinary wear and tear;
“(4) That the damage to the building for the removal of fixtures which defendant is authorized to remove is not measured by the cost of replacing new fixtures.”

Plaintiffs went to trial on their first original petition and their trial amendment. Defendant went to trial on a general denial. Plaintiffs and defendant entered into a long term lease dated April 1, 1945, that expired on March 31, 1960. Plaintiffs pleaded the pertinent provisions of the lease and attached a copy of the lease to the petition as Exhibit “A”, and asserted a claim for structural and other items of damages to the premises by reason of tenant’s express covenants whereby lessee obligated itself to pay all damages to the premises after removing its personal property and to yield up the leased premises in as good condition as when entered by lessee, with exceptions of reasonable wear and tear. We quote the pertinent parts of the lease provisions:

“The lessor covenants that the leased premises and any alterations and improvements thereon will, at the commencement of the term hereof and during the entire term hereof, conform to the laws, ordinances, rules and regulations of all duly constituted authorities and will be in condition suitable for the conducting of a retail store.
“ * * * and the lessee accepts such premises as suitable for the purposes for which same are leased and accepts the building and each and every appurtenance thereof, and agrees to hold the lessor harmless from all claims for any such damage.
“The lessor covenants and agrees that title to all fixtures, signs electric or otherwise, shelving and equipment (whether attached to the land or building or otherwise) placed on the premises by the lessee whether prior to the term of this lease or during its term or any renewal thereof, or during any continued occupancy of said premises, shall remain the property of the lessee and may be removed at any time that the lessee may desire, provided that said lessee shall not be in default in the payment of rent and provided lessee shall pay all damage to said building resulting from said removal.
“The lessee covenants and agrees that at the expiration of the term of this lease, it will peaceably yield up the leased premises to the lessor in as good condition as when same were entered upon by lessee, damage by fire and other elements and ordinary wear and tear excepted.
“This lease shall not be assigned except with the written consent of lessor, and such consent shall not be unreasonably withheld.”

The entire lease was tendered in evidence.

Executor Whitworth testified to the effect that the building was in good usable condition at the beginning of the lease; that the tenant did not deliver the premises to him after its removal, and that it was about eight or ten days after the end of the lease before he could locate and obtain the keys to the building; that when he entered the building the premises were damaged, detailing the damages, and pictures were introduced showing the condition of the building; that repairs were necessary and that the reasonable cost to repair the electrical damages would be about $1100.00 or $1200.00; that the carpenter work necessary would reasonably cost $300.00. An expert electrician, Guy Hines, testified to the effect that electrical repairs would have to be made to the building, and that the reasonable cost was $1187.12. The witness Fisher, a carpenter, testified as to the damaged part of the building requiring carpenter work to be $275.00, and that such amount was a reasonable and a necessary charge. Mr. Katz, district manager for the tenant, testified to the effect that he was sent to close out the store; that he closed it on Saturday night before the end of the lease on March 31, 1960; that he began to get the merchandise ready for shipment and sold other equipment and air-conditioning to Mr. Lebowitz; that as soon as the merchandise was shipped out he left, and left the keys to the building with the local manager, Mrs. Sharp; that he gave no instructions and made no attempt to contact the landlord and yield the building to him; that his position was that after he removed the tenant’s merchandise and sold the other property to Lebowitz, that he had no further responsibility for the building or to the landlord. Mrs. Sharp testified to the effect that she was in and about the store prior to March 31, 1960, and also after that date, and that after Mr. Katz left they were still working on removing the air-conditioning ; that she did not deliver the keys to the building to the landlord and was not instructed to do so; that when she came by the store after the lease was ended there were some men working in the store removing the lights and air-conditioning, and that she was not instructed to do otherwise and that she left the keys in the store when, she left. A Mr. Mooney, witness for tenant; testified that he bought the air-conditioning equipment; that he took out only what he was supposed to take, and knew nothing about other items; that he bought the air-conditioning from the liquidator, and that Mr. Katz and Mrs. Sharp were there at the time; that he required an affidavit of ownership to the property he bought; that he obtained the keys from the man he bought the equipment from, and that about ten days after he removed the equipment Mr. Whitworth called and asked to get the keys to the building, and that he delivered the keys to Mr. Ancel Greene. Defendant’s witness, McGlasson, testified to the effect that he looked in the building on the morning of the trial and stated that he estimated the reasonable cost of repairing the holes in the show windows, replacing missing boards and closing the opening on each side of the show window, to be $150.00; that he did not go into the building and figure all that Mr. Fisher figured, and that he made no estimate for the electrical part of the work.

It is our view that the evidence tendered made out a prima facie case and supports plaintiffs’ allegations for relief.

Points 1, 2 and 3 challenge the construction given by the Court to the contract under the pleadings and the testimony tendered. We sustain each of these points. Plaintiffs have made no attempt to recover any rent or use of the holdover provisions. It is conceded under the terms of the contract that the tenant had a reasonable time to move out, and that the eight to ten days intervening between the date of termination and the date the landlord obtained the keys was not an unreasonable time. In Eckstine v. Webb Walker Jewelry Company, Tex. Civ.App., 178 S.W.2d 532, points 5-6, (ref. w. m.), we find this statement:

“The construction of the lease contract is to be governed by the general rules of construction of written instruments; it is not contended by either party that its terms are ambiguous; so its interpretation will be arrived at by the language used and legal presumptions applicable.”

That is the exact situation here. Plaintiffs pleaded a breach of covenants on the part of the tenant; that is, damage done by the removal of tenant’s property, and failure to yield the premises in good condition and the measure of damages to be the cost of repair. The lease contract was a part of plaintiffs’ petition and, as stated, it was tendered in evidence. Defendant pleaded only a general denial. The general denial put upon plaintiffs the burden to make out a prima facie case, which we think was done by putting in evidence the lease contract and the other testimony tendered thereon, as above detailed. Under the undisputed record, since defendant made no special defense, it was then a matter for the Court to properly construe the contract in issue. See Gulf, C. & S. F. Ry. v. Galbraith, Tex.Civ.App., 39 S.W.2d 91, points 4-9, (n. w. h.). The defendant made no contention that the language of the lease was ambiguous, and under these circumstances all the terms of the lease agreement will be construed in accordance with the language of the lease contract according to its meaning and natural import. See 10 Tex.Jur., 516, Sec. 301, Contracts; Bales v. Jones, Tex.Civ.App., 288 S.W.2d 266-268, point 1, (n. r. e.). As above stated, the district manager testified to the effect that he sold certain items, including the air-conditioning to Lebowitz, and all items of merchandise and all supplies of the tenant were shipped out on Wednesday; that the items sold were still in the building when he left, and that he did not see the building after he left, and before the landlord received the keys to the premises; that he did not deliver the premises or yield them to the landlord but rather that he turned the premises and yielded them to other parties. There was no dispute that the building was damaged, and the Court so found. In 35 T.J., 2d 593, Landlord & Tenant, we find this statement of the rule:

“A tenant obligated to return the property on the expiration of the lease in as good condition as he received it, ordinary wear and tear excepted, cannot release himself from the obligation by subletting the premises to another, where the landlord did not consent to the sublease or where the sublease was not made with any understanding on the part of landlord that the tenant was to be released from the obligations.”

Citing McGaff v. Scrimshire, Tex.Civ.App., 155 S.W. 976. See also Reyes v. Smith, Tex.Civ.App., 288 S.W.2d 822, (n. r. e.) ; Curry v. Texas Co., Tex.Civ.App., 18 S.W. 2d 256 (s. dis.) ; Texas Pac. Coal & Oil Co. v. Barker, 117 Tex. 418, 6 S.W.2d 1031, 60 A.L.R. 936.

Needless to say that under the terms of the lease the landlord could not ascertain his damages to the building until the lessee had exercised its right to remove its property under the terms of the lease and return the building to the landlord. See Sanders v. Lefkovitz, Tex.Civ.App., 292 S.W. 596, points 7-8, (n. w. h.) ; Griffin Grocery Co. v. McBride, 235 S.W.2d 38, Supreme Court of Arkansas. See also City Hotel Co. v. Aumont Hotel Co., Tex.Civ.App., 107 S.W. 2d 1094. Here the landlord invoked the provisions of the lease when he obtained possession of the building in its damaged condition, and the record is without dispute that the lessee made no attempt to carry out the express covenants which were required of lessee by the terms of the lease.

In view of the Court’s findings and contentions of appellee, we quote, in part, the pertinent testimony of the District Manager, Katz, who closed the store.

“Q. Did you sell the light fixtures in the show windows?
“A. No. I sold the light fixtures in the store in the selling area and the fitting rooms, not the light fixtures in the windows.”

Katz testified that he sold such fixtures to a Mr. Lebowitz in the neighborhood of $350.00.

“Q. When did you last see Mr. Lebo-witz?
* * * ⅜ * *
“A. The last time I saw him here on Wednesday around noon time when he had loaded all supplies and things he had bought on his truck and left town. I don’t know exactly what time of the day it might have been, two or three o’clock on the afternoon of the Wednesday.
* * * * * *
“Q. Now, did I hear you testify that everything was out of that building at the time you left here?
* * * * * *
“A. No, there were * * * the fellow who took the air-conditioner out, he was still working Tuesday and Wednesday and I think he also worked on Thursday, because it is quite involved to disassemble this air-conditioning unit and if I remember right, I think he started Tuesday.
“Q. Well, now did you give him the key ? How did he get in the building?
“A. We had the key through Thursday.
* * * * * *
“Q. Now, when you left, who did you deliver those keys to ?
“A. I left it with Mrs. Sharp.
* * * * * *
“Q. At that time they were still moving stuff out?
“A. Not our personal things. They were all gone.
“Q. Well, I’m talking about the air-conditioner.
“A. * * * They were still working on the * * * still working on the unit * * * air-conditioning unit.
“Q. And you left before they had moved out the fixtures that they were supposed to move out?
“A. Yes. I left Thursday morning-Mrs. Sharp was still here.
* * * * * *
“Q. I believe you said though, however, that you left before fireman, the employees or whoever it was supposed to take out the air-conditioner and the lights had: done that?
******
“A. * * * I think were taken off in the selling space and fitting-rooms and I recall that there was-, some exposed duct work laying; on top of the * * * when you-, look out into the street, on the-left side of the store are fixtures. They were taking this duct work-off, I remember it was Wednesday and there was a lot of dust on account of it, and I’m not completely sure whether the unit in-the back room was completely disassembled or not on Wednesday.
******
“A. To the best of my knowledge-they were still working on it on Thursday.
“Q. And that was whoever you had", authorized to do that removal?
“A. Yes.
“Q. That was done under your instructions and guidance?
“A. I sold this particular unit in a. package deal with all the fixtures. to this fellow, Lebowitz, and he, in turn, sold it to the man who-took it out.
"Q. You had authority, though, to sell that and to handle that matter?
■“A. Yes.
“Q. You were authorized to do that and when you left the key was with Mrs. Sharp?
“A. Yes.
“Q. And you left it with her?
“A. Yes.”

Mrs. Sharp, local manager, testified to the effect that she was in the store on March 31, and that she was downtown on the following Friday, which was April 1st, and she went into the store and looked around.

“Q. Were the light fixtures in the store show room missing at what time?
“A. If I recall right, they were down in the center of the store.
* * * * * *
“Q. Now, was there someone working on the * * * removing the air-conditioning equipment on Thursday and Friday both?
■“A. Friday when I went by there was a hoy in the back working * * * taking loose some of the parts of the air-conditioner.
******
"Q. Mrs. Sharp, when Mr. Katz left here, did you have the keys to the building? Who did he leave the keys with?
“A. I had them.
“Q. You had the keys to the building and in completing the moving there, anyone going in and out of there doing that, you either lent them the keys or else you opened for them or what did you do with the keys?
“A. Well, the last day that I worked I was still employed by Man-gels and the last day, when I left that day, well I gave them to Mr. Mooney.
* * * * * *
“Q. You gave them to Mr. Mooney. Who is Mr. Mooney?
“A. Well, he was the man that was taking the air-conditioner out.”

As stated above, Whitworth testified as to the condition of the building at the beginning of the lease, and said it was in good condition. The lease provided that the building was in good condition and would remain in good condition, and that lessee accepted same in good condition. In Pioneer Trust & Savings Bank v. Western Tire Auto Stores, 325 Ill.App. 575, 60 N.E. 2d 280, we find this statement of the Rule:

“Where lease provided that premises should be surrendered at its termination in same condition of repair as at the date of execution of lease, and provided that its signing by lessee should be conclusive evidence that lessee received premises in good order and repair, lessee could not complain of judgment awarding damages to lessor for surrendering premises in damaged condition in violation of lease on ground that there was no evidence as to state of repair at beginning of lease.”

See also Edwards v. Ollen Rest. Corp., 198 Misc. 853, 98 N.Y.S.2d 815; 198 Misc. 858, 103 N.Y.S.2d 512; Pocono Pines Asy. Hotels Co. v. United States (1930) 69 Ct.Cl. 91; Powell v. John E. Hughes Orphanage, 148 Va. 331, 138 S.E. 637; Ghisalberti v. Lagarde, La.App., 146 So. 763, pt. 9; Ryan v. Boston Housing Authority, 322 Mass. 299, 77 N.E.2d 399, points 3-7. It is true that in this case the Court did hold that the premises were damaged subsequent to the expiration of the lease, but such holding is immaterial because the record is without dispute that the tenant had the right to remove the property that he placed in the building, and the record is without dispute that the tenant, through its agent, sold the property that it claimed it put into the building, and that it permitted Lebowitz and the party to whom it sold the property to remove the same from the building. Katz said Lebowitz removed his property prior to about the time the lease expired, but that Lebowitz sold the air-conditioning unit to Mooney, and Mooney started to remove his property with Katz’s permission and completed the removal after the lease expired. The evidence is without dispute that the parties to whom Katz had permitted to go into the building kept the keys until demand was made for them by Whitworth, and that Whitworth’s agent, Ancel Greene, received the keys some ten days after the lease expired. Neither Katz nor the local agent made any attempt to deliver the keys to the building or surrender the building to the landlord, and when the landlord did get the keys and possession of the building he found that the building had been damaged as herein detailed. The fact that Whitworth made no complaint to the ap-pellee about the tenant actually holding over and removing the property that they claimed to have placed in the building is of no significance, because the landlord recognized that under the lease the tenant had a reasonable time to have the improvements removed from the building, but this did not relieve the tenant of the obligation, under the terms of the lease, to see that the building was surrendered to the landlord in as good condition as it was at the time it was rented, reasonable wear and tear excepted. The Court did find that the building had been damaged, but failed to find the amount of the damages. The damaged condition was detailed to the Court by Whitworth, Hinds, Fisher and the pictures of the premises., It was also admitted in part by defendant witness, Mc-Glasson, who was called to testify only to" a part of the damages claimed. Thus far we have discussed the pertinent terms of the lease, the pleadings and testimony relative to the lease and have found that the landlord made out a prima facie case against the tenant. The next question that presents itself is: What is the proper measure of damages under the pleadings and' under the lease contract? We think it is the cost of repairs. The lease provided that the lessee would have the right tO' remove all the property that it placed ini the building provided that it was not “in default in the payment of the rent and provided lessee shall pay all damage to-said building resulting from said removal.”' Going back to the pleadings, plaintiffs-pleaded damages based upon the reasonable cost of repairs to restore the building, and evidence was introduced to substantiate such pleading. As above stated, defendant went to trial on a general denial. There was no special exception to plaintiffs' pleadings. “In absence of special exceptions, petition will be liberally construed in pleader’s favor and to support the judgment.” Scott v. Gardner et al., 137 Tex. 628, 156 S.W.2d 513, 141 A.L.R. 50, points 1-2. We think the situation here is similar to the question presented in Hill & Hill Truck Line, Inc., v. Powell, Tex.Civ.App., 319 S.W.2d 128, (n. w. h.). There we held that the measure of damages was the reasonable cost of repairs to place the building in usable condition and grounded our decision on the rule announced by the Supreme Court in Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127. See also Glickman v. De Berry, Tex.Civ.App., 11 S.W.2d 367, (n. w. h.) ; Curry v. Texas Company, Tex.Civ.App., 18 S.W.2d 256, point page 260 (w. dis.). We are of the further view that the Court’s Conclusions of Law based upon his Findings of Fact heretofore discussed, are erroneous. See Gulf Pipe Line Co. v. Watson, Tex.Civ.App., 8 S.W.2d 957, point 5, (n. w. h.); Houston & T. C. Ry. v. Buchanan, 38 Tex.Civ.App. 165, 84 S.W. 1073; Sydney Webb & Co. v. Daggett, 39 Tex.Civ.App. 390, 87 S.W. 743, (w. ref.).

Points 4, 5, 6 and 7 are to the effect: (4) That the Court erred in rendering judgment for defendant on its first Finding of Fact that the condition of the premises had not been proved when entered by defendant, because such finding has no support in the evidence and is contrary to the pleadings, the evidence tendered, and to a proper construction of the contract, and that such finding is so against the overwhelming and undisputed weight of the evidence as to be clearly and manifestly wrong, and it is further inconsistent with its 4th Finding, and is an improper measure of damages and constitutes fundamental error; {5) That the judgment rendered for defendant on the Court’s 2nd Finding which was to the effect that the damages did not occur prior to the expiration of the lease, and his 3rd Finding that defendant did not hold over beyond the lease because these findings are not supported by and are contrary to the pleadings, the evidence introduced, and proper construction of the pleadings and contract, and is clearly and manifestly wrong and has no basis for any purpose here; (6) That the Court erred in failing to enter judgment for plaintiffs, because under the Court’s 4th Finding that the premises were damaged is a material finding in favor of plaintiffs and is the basis of this suit, and that such finding will support judgment on a proper legal measure of damages as pleaded and proved by the evidence, and failure to do so constitutes and is fundamental error; (7) That the Court erred in rendering judgment for defendant on his Sth Finding of Fact wherein the Court held that plaintiffs did not prove that damages occurred prior to delivery of the keys to plaintiff, because such finding is not supported by and is contrary to the pleadings and terms of contract, and is against the undisputed evidence and is clearly and manifestly wrong. We sustain these points. The evidence is without dispute that the building was in good condition, suitable for the purpose of the lease; that it had electrical wiring, lights, doors and equipment, and the building was in that same condition when the tenant moved in. It will be recalled that the lease stated: “The lessee accepts such premises as suitable for the purposes which same are leased.” At all times during this long lease tenant had the right of exclusive possession and enjoyment, and it provided that at the end of the term that tenant would peaceably surrender the leased premises in good condition as when entered. It is clear that under the terms of the lease the lessee had the full enjoyment and control of the building until he yielded it to the landlord under the terms of the lease. Certainly the landlord did not have the right and could not make an appraisal of the damages he sustained to his building until after the tenant had exercised its right to remove its property from the building, and to remove the fixtures it had placed in the building under the terms of the contract. The Court did find in its 4th Finding that the building had been damaged, but in the Sth Finding wherein he found that plaintiffs did not prove the damages occurred prior to delivery of the keys to plaintiff, is, we think, without any support, and in all events is contrary to the great weight and preponderance of the evidence, and is manifestly wrong.

After a careful review of this record we think the Court has given an incorrect construction to the terms and conditions of the lease contract. As we understand the Findings of Fact and Conclusions of Law he was of the view that the responsibilities of the lessee, under this record, terminated on March 31, 1960, that being the date that the lease terminated. That finding and conclusion would have been true if the tenant had vacated the premises and removed its property, and had tendered to the landlord the building in the condition it was in, reasonable wear and tear excepted, at the time the lease began, which the tenant failed to do. We have previously detailed all the tenant did. It removed its property, it sold its fixtures and turned the keys over to the parties it sold the fixtures to and permitted the fixtures to be removed, and during this ten day period the building was damaged while it was in the legal possession of the tenant, because it had not returned the building to the landlord under the expressed terms and provisions of the lease. Certainly the tenant could not (and did not) discharge his duty under the terms of the lease until he had surrendered the building to the landlord in the condition the building was in when he received it, reasonable wear and tear excepted, and this he did not do. Accordingly, Points 4, 5, 6 and 7 are sustained.

Point 8 is to the effect that the Court erred in rendering judgment for the lessee on its Sth Finding that plaintiffs did not prove the damages occurred prior to delivery of the key to plaintiffs, because same is not supported by and was contrary to the pleadings, evidence and the terms of the contract, and so against the overwhelming undisputed evidence so as to be clearly and manifestly wrong. We sustain this point.

We have carefully considered this record, the Findings of Fact and Conclusions of Law, and it is our view that the Findings of Fact are contrary to the undisputed factual situation here developed, save and except that part of finding 4 wherein the Court found that the premises were damaged. That part of the finding that the building was damaged is sustained by the undisputed evidence; that part of the finding that the damage occurred subsequent to the expiration of the lease is immaterial, and in effect is in open and irreconcilable conflict with the record because the evidence is without dispute that the damage occurred to the building while it was in the legal possession of the tenant, because the tenant’s agent permitted the people to whom the property was sold to go into the building and remove these fixtures, and when the landlord actually gained possession of the building he found that the building had been damaged, and we are of the view that the record shows that the building was damaged while it was in the legal possession of the tenant because it had not fulfilled its contract and delivered possession of the building to the landlord under the terms and provisions of the contract, and that these fixtures were removed and the damage done to the building before the keys and possession were delivered to the landlord. There is no contention by the landlord that the tenant held over, but that the tenant merely exercised a reasonable time in which to remove its goods and wares, and sell and/or remove the fixtures in the exercise of its-right, but that the tenant permitted the building to be damaged while it was in its legal possession and before the building was-surrendered to the landlord. That leads us-to say that the findings of the trial court, except where it found that the building was damaged, is so against the great weight and preponderance of the evidence as to be manifestly wrong. Since we have a statement of facts the findings of the trial court are not binding on us. See Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156, (Sp.Ct.). The findings of the trial court,, except wherein the court found that the-building was damaged, are hereby set aside, and held for naught in their entirety. The-Conclusions of Law filed by the Court are-necessarily in error, and they are set aside.

We have given much consideration to the-question of whether under the record the rule stated in Cochran v. Wool Growers, 140 Tex. 184, 166 S.W.2d 904, points 9-10, we have authority to reverse and render this-cause on the measure of damages shown by the testimony; (See also Springfield Fire & Marine Ins. Co. v. Wm. Cameron, Tex. Civ.App., 96 S.W.2d 788, (W. ref.), opinion by Justice Alexander) but since the Court failed to find the amount of damages, we-have decided that justice would best be served by a reversal and remand of this cause. The majority are also of the view that the trial court tried this cause on an erroneous theory, and that justice will be best served by a reversal and remand of the same. See City of Houston v. Bullard, Tex. Civ.App., 354 S.W.2d 224; also Pioneer Trust & Savings Bank v. Western Tire Auto Stores, 325 Ill.App. 575, 60 N.E.2d' 280, supra. Since the majority are of the view that the cause must be reversed and remanded, and since we have held that the trial court tried the cause on the wrong theory under the terms of the lease contract, the other questions presented should not arise again.

Accordingly, the cause is reversed and remanded in order that the cause may be retried according to the views herein expressed. All costs of appeal are taxed against appellee.

WILSON, J., dissents.