author: STEPHENSON, Justice.

text:
    Steve MAURO et al., Appellants, v. Roosevelt LAVLIES et ux., Appellees.
    No. 6715.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 31, 1964.

      Charles Holcomb, Orange, for appellants.
    Tom Featherston, Port Arthur, for ap-pellees.
   STEPHENSON, Justice.

This action was brought to cancel judgment liens and remove the cloud cast upon plaintiffs’ premises. Trial was before the court and judgment was rendered for plaintiffs ordering that the abstract of judgment liens do not constitute a lien against plaintiffs’ business, homestead and further ordering said liens be removed as a cloud on the title to said property.

The evidence showed that each of the defendants recovered a judgment for debt against the plaintiff, and that an abstract of each judgment was filed for record. Evidence was offered by plaintiffs showing that the property in question was the plaintiffs’ business homestead, and the trial court made such a finding in its judgment. No attack is made upon such finding.

The only point of error brought to this court is that the trial court erred in rendering judgment for plaintiffs because there was no justiciable controversy between the parties.

Article 16, Sec. 50 of the Constitution, Vernon’s Ann.St. provides that the homestead of a family is protected from forced sale, except for certain enumerated purposes. Article 3832, Vernon’s Ann.Civ.St., provides that the homestead of a family is exempt from attachment or execution and every other species of forced sale for the payment of debts, except as thereinafter provided. It is admitted that the debts sued upon by each defendant do not come within these exceptions.

There is no evidence in this record that either of the defendants .had made any attempt to have this property sold under forced sale in order to satisfy their judgments. One judgment was dated March 16, 1960 and abstracted March 22, I960; the other judgment was dated September 4, 1959 and abstracted the same day. This cause was heard in the trial court May 23, 1963.

The abstract of the judgment does not in itself assert any claim of lien upon homestead property. No mention is made of the property which is the subject matter of this suit in the judgment which was abstracted. This case is not one in which an attempt was made by the parties to create a lien upon a homestead for a purpose not permitted by the Constitution and Statutes of this State. Actually, there is no controversy between the parties to be decided. Westman v. James B. Clow & Sons, Inc., D.C., 38 F.2d 125. 47 Tex.Jur. (2), page 543 reads as follows:

“In order to maintain a suit to quiet title, there must be an assertion by the defendant of a claim to some interest adverse to plaintiff’s title; and the claim must be one that, if enforced, would interfere with the plaintiff’s enjoyment of the property.”

The question as to a cloud on the plaintiffs’ title could have been raised in this case if the evidence had shown the plaintiffs had attempted to sell this property and could not do so because these judgments had been abstracted. It is doubtful that a title insurance company would issue title insurance upon a piece of property where a judgment had been abstracted. Article 3834, V.A.C.S., provides that the proceeds of a voluntary sale of the homestead shall not be subject to garnishment or forced sale within six months after such sale. This made it clear that it was intended not only that the homestead be exempt from forced sale, but that the owners of the homestead have the right to sell and dispose of it without restraint. There is no pleading and no evidence in this record that these plaintiffs are attempting to sell this property and have been prevented from doing so because of these judgments.

It is of no significance that this property was at the time of this trial the plaintiffs’ homestead, as that condition could change at any moment. For example, abandonment could take place at any time. Appellants’ point is sustained.

The judgment of the trial court is reversed and judgment is rendered that the plaintiffs take nothing.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    Floyd W. PATE et al., Appellants, v. PONCA WHOLESALE MERCANTILE COMPANY, Appellee.
    No. 7433.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 18, 1965.
    Rehearing Denied Feb. 8, 1965.

      Shaver, Hurley & Sowder, Lubbock, Rosser & Carroll and J. Ray Martin, Snyder, for appellants.
    Miller, Sanders & Baker, Amarillo, for appellee.
   NORTHCUTT, Justice.

This is a venue case. Ponca Wholesale Mercantile Company, a corporation, as plaintiff, brought this suit in the 47th District Court in and for Potter County, Texas, against Floyd W. Pate, W. R. Burns, Melvin R. Way, Roy Smith and Harold Wren, as defendants, alleging the plaintiff employed Pate as its agent, employee and representative to keep and sell merchandise furnished to Pate by the plaintiff and to collect, receive and remit to the plaintiff for money received by Pate for said merchandise being at all times the property of the plaintiff. The plaintiff further alleged that in consideration of the plaintiff retaining Pate as its agent, employee and representative, and entrusting him with the property and funds of the plaintiff, Pater as principal, and the other defendants, as-sureties, executed a certain bond in favor of the plaintiff by the terms of which said bond all of the defendants named undertook to hold plaintiff harmless against any and all losses which might be caused to the-plaintiff by reason of the activities of Pate, and attached a copy of said bond to the petition and made it a part thereof. Plaintiff alleged Pate was short in accounts in the sum of $3,178.76 to plaintiff’s damage in that amount and that said bond was in full force and effect during the time when said shortage in the accounts of Pate was incurred and that the shortage in the accounts of Pate was caused from such failure and defalcations as were contemplated by the terms of the bond executed by all of the defendants here in favor of the plaintiff. Plaintiff further pleaded failure by defendants to comply with the terms of the bond to make payment of plaintiff’s loss in the sum of $3,178.76.

Pate filed his plea of privilege to be sued in Scurry County alleging no exception to exclusive venue in the county of one’s residence provided by law existed in said cause and that venue in this suit was not laid in the proper county. The plaintiff filed its controverting plea making its petition and exhibit a part of its controverting plea and contending Subdivision 5 of Article 1995, Vernon’s Ann.Tex.Civ.St, controlled in this case.

Burns, Way, Wren, and Smith filed their pleas of privilege denying they ever signed the bond and Burns, Way, and Smith denied they ever appeared before the Notary Public, T. C. Goss, as shown attached to the bond. The plaintiff filed its controverting plea to the plea of Burns, Way, Wren and Smith and among other matters alleged that the bond set out in plaintiff’s original petition on file in this cause affirmatively reflected execution of said instrument by Burns, Way, Wren, and Smith.

The pleas of privilege were heard by the court without a jury and the court overruled all of the pleas of privilege and held venue was properly had in Potter County, Texas. From that order the defendants perfected this appeal.

Pate presents this appeal upon six assignments of error contending there was no evidence to overcome his plea of privilege since the Exhibit A (the bond sued upon) was not offered against him; the court erred in failing to hold void the stipulations in the bond' that "it is agreed by all signers hereto that any action at law hereon or under shall be brought and maintained in Amarillo, Potter County, Texas”; the court erred under Subdivision S in overruling Pate’s plea of privilege inasmuch as the obligation of the bond was conditional and there was no proof of any failure of Pate to perform or discharge any duty assured so as to make absolute the conditional obligation on the bond and that Pate, being a necessary party to any suit against any and all of the other appellants, but they being only proper parties as to him and one another and neither he nor any of them being residents of Potter County, Texas, it was error for the trial court not to transfer the entire suit to the District Court of Scurry County as the county of the residence of Pate and two other defendants as the most appropriate and convenient forum in which venue could be fixed for the disposition of all issues to all parties in one trial and one judgment

It was the contention of Burns, Smith and Wren that the court erred in overruling their plea for the reason that there was no evidence to support the court’s finding that said defendants had contracted in writing to perform an obligation in Amarillo, Potter County, Texas; that there was no evidence that said defendants executed a contract in writing and there was no evidence that the alleged bond contained any obligation on the part of such defendants. Way did not file any brief in this appeal. The parties hereafter will be referred to as plaintiff and defendants, as they were in the trial court.

Pate did not in his plea of privilege deny signing the bond here in question and neither did he deny appearing before T. C. Goss, the notary taking his acknowledgment. The acknowledgment attached to the bond showed Pate acknowledged he executed the bond for the purpose and consideration therein expressed. When the bond was first offered in evidence by the plaintiff, the defendants excepted to its introduction. The court sustained the exception until its execution was proven. Later the plaintiff offered the bond in evidence and stated he introduced it at least as to Burns, Smith and Wren. We think the court erred in not admitting the bond when first offered as to Pate since the same was shown to have been acknowledged by Pate and was not denied. The bond shows Pate as signing it and then acknowledged by him. The acknowledgment is not a part of the bond, but the certificate of acknowledgment constitutes extrinsic evidence of the acknowledgment of the maker and by force of the statute constitutes proof of his acknowledgment in not only signing it but that he was the identical person who did so and that he executed it for the purposes and considerations therein expressed. It is stated in Stout v. Oliveira, Tex.Civ.App., 153 S.W.2d 590 (writ refused w. m.) as follows:

“Furthermore, the statute, Article 3723, R.C.S.1925, makes the certificate of acknowledgment evidence of the facts therein stated in any court of this State. It has been held that a certificate of acknowledgment is prima facie evidence of all facts therein recited, and that the recitals are conclusive unless fraud or imposition are shown, and that the burden of proof is on one who denies the genuineness of the acknowledgment and instrument to show such facts. Ellington v. Bryant, Tex.Civ.App., 293 S.W. 327; Ward v. Weaver, Tex.Com.App., 34 S.W.2d 1093; Hill v. McIntyre Drilling Co., Tex.Civ.App., 59 S.W.2d 193; Adkins-Polk Co. v. Rhodes, Tex.Com.App., 24 S.W.2d 351; Hughes v. Dopson, Tex.Civ.App., 135 S.W.2d 148; Norris v. Lancaster et al., Tex.Com.App., 280 S.W. 574; Smith et al. v. Dozier Const. Co., Tex.Civ.App., 66 S.W.2d 744, and authorities cited; Thane v. Dallas Joint Stock Land Bank, Tex. Civ.App., 129 S.W.2d 795.”

The defendants, Burns, Smith, and Wren, denied signing the bond but each agreed they signed their names in the acknowledgment but stated they did not sign before Goss. They did not show any fraud or imposition. It is stated in the case of Hughes v. Dopson, Tex.Civ.App., 135 S.W.2d 148 as follows:

“Appellant introduced in evidence the notes and extension contracts, the latter of which were acknowledged before a notary public and contained his certificate of acknowledgment and notarial seal. Under the provisions of Art. 3723, R.C.S.1925, all declarations, protests and acknowledgments taken by notaries public are receivable as evidence of the facts therein stated in the courts of this state. The certificate of acknowledgment is prima facie evidence of the execution of the instrument and renders the instrument admissible without other proof of its execution. The denial of its execution under oath by the alleged maker does not alter the statutory provision. When appellee filed his sworn plea of non est factum, he shifted the burden of establishing the execution of the extension contracts to appellant and it became his duty to do so by legal and competent evidence. By the plain provisions of the statute the certificate of acknowledgment executed by the notary public containing his seal of office constituted such proof and while the burden of proof remained upon him throughout the trial, the weight of evidence shifted immediately to the ap-pellee and it became his duty to support his plea of non est factum by admissible testimony. The only evidence offered by appellee in discharge of his burden in this respect was the three paragraphs of his own answer which we have held were not admissible as evidence. Steiner v. Jester, 86 Tex. 415, 25 S.W. 411; Norris v. Lancaster, Tex.Com.App., 280 S.W. 574; Smith v. Dozier Const. Co., Tex.Civ. App., 66 S.W.2d 744; Thane v. Dallas Joint Stock Land Bank, Tex.Civ.App., 129 S.W.2d 795; Romer v. Conter et al., S3 Minn. 171, 54 N.W. 1052; Aurelius-Swanson Millwork Co. v. First Nat’l Bank, 107 Okl. 203, 231 P. 471.”

The certificate of acknowledgment was prima facie evidence that Burns, Smith and Wren personally appeared before Goss and acknowledged that they executed the bond for the purposes and considerations therein expressed. To overcome those recitals it was not enough to show the signatures affixed to the bond herein were not their own. It was not necessary that their signatures be affixed to the bond to give it validity. That might be done by another person. Stout v. Oliveira, supra; Hughes v. Dopson, supra; Mondragon v. Mondragon, 113 Tex. 404, 257 S.W. 215.

Pate, whose name appeared on the bond did not by his plea of privilege deny signing the bond and acknowledging it before Goss, a notary public, and the bond providing “all sums due hereunder are payable at Amarillo, Potter County, Texas,” we think clearly shows venue as to him would be in Potter County under Subsection S of Article 1995, V.T.C.S., and that Subsection 29a of Article 1995, V.T.C.S., would apply as to all defendants. It is stated in Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900 as follows:

Subdivision 29a, supra, is purely ancillary to other exceptions to Article 1995, and can never be invoked to fix venue in a given county independent of some one of those exceptions. It relates only to suits brought in a county where no defendant resides or is domiciled, but which can be maintained there against one defendant under some other exception of that article. Pioneer Bldg. & Loan Ass’n v. Gray, supra, [132 Tex. 509, 125 S.W. 2d 284]; Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347.”

See also Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758.

Since this is a suit brought upon a written contract performable in Potter County and the contract was introduced in evidence, proof of existence of a cause of action is not required. Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (Com.App. opinion adopted by Sup.Ct.) ; Roach v. Schaefer, Tex.Civ.App., 214 S.W.2d 128; Baker & Taylor Drilling Co. v. Blanchard Drilling Co., Tex.Civ. App., 363 S.W.2d 818. We have carefully considered all of appellants’ assignments of error and find no reversible error.

Judgment of the trial court is affirmed.

DENTON, C. J., dissents.


author: WERLEIN, Justice.

text:
    Leslie H. GRAVES, d/b/a Patrick & Graves, Appellant, v. Celina F. TREVINO et vir, Appellees.
    No. 14467.
    Court of Civil Appeals of Texas. Houston.
    Jan. 14, 1965.
    Rehearing Denied Feb. 11, 1965.

      Joe J. Newman, Houston and Frank C. Fourmy, La Porte, for appellant.
    Ragan & Russell, and John L. Russell, Houston, of counsel, for appellees.
   WERLEIN, Justice.

Our opinion of December 10, 1964 is withdrawn and the following opinion is substituted therefor.

Appellee, Celina F. Trevino, joined pro forma by her husband Salvador Trevino, sued appellant to recover damages for the unlawful, intentional and malicious conversion of merchandise allegedly owned by her, and also to recover exemplary damages. Appellant has appealed from the judgment of the trial court based on the jury findings: that appellee was the owner of the goods in question consisting of the contents of 17 cartons and 8 packages that entered the United States from Tijuana, Mexico; that the fair market value of such goods in the constructive possession of appellant was $30,000.00 when appellant refused to recognize appellee’s ownership thereof in January and February, 1961; that appellee’s actual loss in money sustained by reason of the loss of the goods was $30,000.00; and that appellee was entitled to exemplary damages in the sum of $10,-000.00.

Appellant asserts that the court erred in entering judgment in favor of appellee since appellee’s pleading shows that her husband was joined only pro forma and there was no pleading or proof that the property in question was appellee’s separate property and that her husband, who was a necessary party, refused to join her as plaintiff in the suit. Appellee in her petition alleged that she was the constructive owner and entitled to the immediate possession of the property in question. She further alleged that the property was unlawfully converted by appellant to his own use, to her damage in the amount of $30,000.00, and that she was also entitled to exemplary damages in the amount of $50,000.00.

Appellee testified that she had been engaged in business as a merchant for about 25 years, dealing in the importation and purchase on a commission basis of textiles, clothing and numerous other kinds of merchandise, buying merchandise in England, Japan, United States and Switzerland, and that she operated her business under the registered name of C. F. Trevino. She further testified that she bought the goods in question in Tijuana, Mexico.

At the time this suit was filed Article 4614, Vernon’s Annotated Texas Statutes, provided, among other things, that:

“(b) The wife shall, if she be 21 years of age or over and so elects as provided in subsection (d), have the sole management, control, and disposition of her separate property, both real and personal; and in connection therewith, she may, in her own name, contract and be contracted with, sue and be sued, without the joinder of her husband * * * ”

Subsection (d) of such Article provided:

“A married woman 21 years of age, or over, may file with the County Clerk of the County in which she is a resident, a duly acknowledged statement that she thereby elects to have sole management, control and disposition of her separate property. From and after the date of filing of such statement, which shall be recorded by the County Clerk in the Deed Records of said county, such married woman shall have the full authority to deal with her separate property as set forth in subsection (b) * * * ”

We have set out subsection (d) of Article 4614 to show that it was procedural in nature. After this suit was filed and before entry of judgrpent, Articles 4614 and 4626, V.A.T.S., were amended effective 90 days after May 24, 1963. Subsection (d) of Article 4614 was eliminated by the amendment of such Article, and Article 4626 was amended so as to read:

“A married woman shall have the same powers and capacity as if she were a feme sole, in her own name, to contract and be contracted with, sue and be sued, and all her separate property, her personal earnings and the revenues from ' her separate estate which is not exempt from execution under the laws of Texas shall thereafter be subject to her debts and be liable therefor, and her contracts and obligations shall be binding on her.”

Article 4626 as amended gave appellee the right to prosecute the suit to final judgment in her name as a feme sole if the property was her separate property. Such Article eliminated the former procedural requirement that she file a statement with the county clerk of the county in which she was a resident. It is our view that the change was procedural in nature, and that after the effective date of the amendment, appellee could, without joinder of her husband, prosecute the present suit to recover damages for conversion of her separate property. Hence it is immaterial in this case that the husband was joined only pro forma if the property was appellee’s separate property. It does not appear on the face of the record when appellee and her husband were married or that they were married at the time the property in question was acquired by her. Therefore, there can be no presumption that the property in question was community property. Appellee testified that she owned the property in question and she alleged that she had constructive ownership thereof. The jury found that appellee was the owner of the goods in question, and that the fair market value thereof was $30,000.-00, and also that the actual loss which appellee sustained by reason of the loss of the goods was $30,000.00.

Under these circumstances, it cannot be said that the non-joinder of appellee’s husband as a real party constitutes fundamental error. McCauley v. Consolidated Underwriters, 1957, 157 Tex. 475, 304 S.W.2d 265; Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979; Halbert v. Upper Neches River Municipal Water Auth., Tex. Civ.App., 367 S.W.2d 879, writ ref., n. r. e.; Schafer v. Stevens, Tex.Civ.App., 352 S.W. 2d 471. Therefore, appellant’s first two points, which assert error on the part of the trial court in entering judgment for appellee because there is no pleading or proof that the property was her separate property and because her pleading and proof show that appellee’s husband, a necessary party, was not a party to the suit because joined only pro forma, cannot be considered by this Court since such points were not raised in appellant’s amended motion for new trial nor otherwise presented in the trial court.

There seems to be no disagreement between appellant and appellee with respect to the measure of damages in a suit brought in trover or for conversion of personal property. The difficulty lies in the application of the general rules to the facts of this case. Ordinarily, compensatory damages for conversion of personal property are represented by the market value of such property at the time and place of conversion. In the instant case, appellee undertook to establish the market value of the goods in Harris County where it is conceded by both parties the conversion, if any, took place.

Since appellee’s evidence showed there was no market value in Harris County or Texas for such goods in quantity or bulk, she properly assumed the burden of proving the value of the goods at the nearest place where such goods in bulk could be bought and sold on the market and of proving the cost of transportation to such point which she testified was Tijuana, Mexico. An exception to the general rule is that where there is no market for the goods at the place of conversion, the measure of damages is the value of the property at the time of conversion at the nearest and most available place at which there is a market value, less the necessary cost of transportation thereto. Myatt v. Elliott, Tex.Civ.App., 143 S. W.2d 205, error dism., judg. cor.; Straley v. Fisher, 176 Va. 163, 10 S.E.2d 551. See also 14 Tex.Jur.2d, p. 30, Conversion, § 26; 25 C.J.S. Damages § 88.

The goods were shipped in quantities or in bulk in cartons, and were allegedly converted in such form. It has been held that in an action for conversion for a stock of goods the value at which the goods may be sold at retail, standing alone, does not afford a sufficient basis for determining their market value. Market value is what the goods could be promptly sold for in bulk or in convenient lots. Shield Co. v. Cartwright, Tex.Civ.App., 172 S.W.2d 108, and authorities cited, aff’d, 142 Tex. 324, 177 S.W.2d 954. It is our view that the reasonable market value of the goods in question would be the value of the goods contained in such cartons in bulk and that Mrs. Trevino was qualified to testify as to the reasonable market value of such goods at Tijuana, where she purchased them.

We have carefully read the entire statement of facts, and have concluded that there was evidence which warranted the submission of the special issues in question, and that we cannot say that the answers of the jury to such special issues are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In the absence of special exceptions thereto, we are of the opinion that appellee’s pleading was sufficient.

There is no reversible error on the part of the trial court in permitting appellee to testify as to the actual loss in money to her as a result of the conversion, and in submitting Special Issue No. 3 inquiring as to the actual loss in money sustained by appellee as a result of the loss of the goods, in view of the fact that the jury upon ample evidence of the market value of the goods found that the fair market value thereof at the time appellant refused to recognize her ownership was the same amount as the actual money loss sustained by her. Rule 434, Texas Rules of Civil Procedure.

Appellee’s motion for rehearing granted.

Judgment affirmed.


author: PHILLIPS, Justice.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Clifton WEBER, Appellee.
    No. 11255.
    Court of Civil Appeals of Texas. Austin.
    Jan. 13, 1965.
    Rehearing Denied Feb. 3, 1965.

      Groce, Hebdon, Fahey & Smith, Edward P. Fahey, San Antonio, for appellant.
    Byrd, Davis & Eisenberg, Austin, O. T. Moore, Jr., Lockhart, for appellee.
   PHILLIPS, Justice.

This is an appeal from a judgment on a jury verdict granting appellee compensation for an injury received while in the course of his employment for C. E. Purcell; that such injury was the producing cause of appellee’s total and permanent incapacity. The suit was brought under the Workmen’s Compensation Law, Art. 8306, Vernon’s Ann.Civ.St. There is no contention here that these issues were not fully supported by the evidence and these findings are unchallenged.

Mr. C. E. Purcell, the employer in this case, was in the oil well servicing business. This consisted of servicing oil wells, lease work and oil field work in general. It was in this business that appellee worked as a roustabout and a member of a well servicing crew.

Purcell also owned a farm and had a hired man who lived and worked on the farm.

On the date appellee was injured, Purcell had his well servicing crew go to his farm and connect sections of 7 inch oil field pipe which were 20 feet in length. The pipe consisted of regular oil field casing which was heavy enough to either be dragged by a tractor or to require four men to lift each length. The pipe was being installed to irrigate crops on the farm.

Appellee had been lifting the casing all morning and screwing the pipes together. Around noon he told another crew member that he had hurt his back. Appellee’s claim of total and permanent incapacity results from this injury.

Appellant contends under his first two points of error that appellee was laying pipe on a farm at the time that he was injured; that he is not covered by the Act because of Section 2 thereof providing that:

“The provisions of this law shall not apply to actions to recover damages for personal injuries nor for death resulting from personal injuries sustained by domestic servants, farm laborers, ranch laborers * * * ”

We overrule these points.

The law of this State is that the nature of the business in which the employee is hired to work and the duties he regularly performs are the controlling tests and not the specific activity he is engaged in at the time of his injury.

Thus the law looks to the over-all nature of the claimant’s duties disregarding temporary departures from that class of duties even if the injury occurs during one of the departures. Safety Casualty Co. v. Gray, Tex.Civ.App., 67 S.W.2d 1057, writ. dism.; Texas Indemnity Ins. Co. v. Smith, Tex. Civ.App., 73 S.W.2d 578.

Appellant has cited the Court of Civil Appeals’ decision in Georgia Casualty Co. v. Hill, Tex.Civ.App., 30 S.W.2d 1055, wherein the claimant generally working as a nurseryman was killed as he walked across a highway leading a heifer to be bred. The Court held that while at this temporary departure the claimant was excluded under the farm laborer provision. The Commission of Appeals in affirming the decision of the Court of Civil Appeals, Hill v. Georgia Casualty Co., 45 S.W.2d 566, held that the nursery employment of claimant was also that of a farm laborer and stated:

“The only question presented for decision relates to the asserted right of Mrs. Hill to recover compensation, under the Workmen’s Compensation Law, for the injury and resulting death of her husband. This calls for consideration of the character of work which James M. Hill was required to perform in fulfillment of his employment contract; and whether or not, under that contract, he was such an ‘employee’ as comes under operation of the statutes.” (Emphasis added)

Appellant emphasizes the fact that appel-lee was paid by the day for the work he performed, consequently he was a farm laborer while laying pipe on the farm on the day that he was injured. We cannot agree and again look to the type of work for which he was generally employed.

It would serve no useful purpose to discuss the cases from jurisdictions other than Texas cited by appellant as they fall into two general categories, viz. those where the statutes involved are different from the Texas statute, and those where the claimant was held by the courts to have been generally engaged in an agricultural pursuit.

We hold that under the above facts ap-pellee was not a “farm laborer” under the statute in question.

Appellant’s third point of error is that of the court in overruling appellant’s objection to the introduction of plaintiff’s (appellee) Exhibit No. 2, being the Carrier’s Notice of Hearing and Statement before the Industrial Accident Board.

At trial appellant denied that appellee had sustained an injury while in the course of his employment or that he suffered any total incapacity.

The trial court admitted into evidence the following provisions of the “Carrier’s Notice of Hearing and Statement” which was sworn to by an agent of the appellant:

“1. The principal issue before the board is: Extent of disability.
“3. Employee was totally disabled from March 29 to May 20 of 1963.”

Appellant objected to the introduction of this evidence in that it was a matter filed before the Industrial Accident Board in the case; that there was an appeal from the award of the Board, and the statute provides “that most of these instruments are not admissible in evidence during the trial, and that they are for the Board’s information up there; second there is no statement that I can find that could be used as evidence, and, if it is offered as impeachment, I don’t know of anything that can be impeached by it.”

The court overruled the objection and admitted the limited statements set out above.

Appellant insists that the introduction of these statements is prohibited by Article 8309, Section 5, which provides:

“The reports of accidents required by this law to be made by subscribers shall not be deemed as admissions and evidence against the association or the subscriber in any proceedings before the board or elsewhere in a contested case where the facts set out therein or in any one of them is sought to be contradicted by the association or subscriber.”

Sec. 5 of Article 8309 refers to the subscriber’s or employer’s report. The portion of the report objected to here is the Carrier’s Statement which was voluntarily filed before the Board. We have been cited no statutory prohibition against the admission of the Carrier’s Statement. Appellant cites Texas Employers Insurance Association v. Shiflet, Tex.Civ.App., 276 S.W.2d 942, writ refused, n. r. e., wherein the admission of certain portions of the Carrier’s Report was held to be error. Shiflet is not in point here as the portions of the Carrier’s Report in question included portions of a medical report that were hearsay and probably prejudicial.

Appellee introduced the report for the limited purpose of showing that on a prior occasion an authorized agent of the appellant had stated under oath that the appellant was not contesting the fact that appellee had sustained an accidental injury in the course and scope of his employment, and was admitting that he was totally disabled from March 28, 1963 to May 20, 1963, positions wholly inconsistent and directly opposed to the position appellant was taking at the trial of the case.

The cases hold that assertions or statements made by claimants filed before the Industrial Accident Board are admissible where they are in conflict with the position taken at trial. Parker v. Traders & General Insurance Company, Tex.Civ. App,, 366 S.W.2d 107, reversed in part, 375 S.W.2d 714, Sup.Ct.; Texas Employers Ins. Ass’n v. Davis, Tex.Civ.App., 228 S.W.2d 257. We can see no reason why an insurance carrier should not be subject to the same rule when its prior statements are inconsistent with the position taken at trial. We overrule this point.

The judgment of the trial court is affirmed.


text:
    George W. ZELUFF et ux., Appellants, v. C. J. Ivan EKMAN et al., Appellees.
    No. 14477.
    Court of Civil Appeals of Texas. Houston.
    Jan. 28, 1965.
    Rehearing Denied Feb. 11, 1965.

      Patterson, McDaniel, Moore & Browder, Houston, Louis M. Moore, Houston, of counsel, for appellants.
    Grant Cook, Houston, Bracewell, Reynolds & Patterson, Houston, of counsel, for appellees.
   WERLEIN, Justice.

Appellees, C. J. Ekman and wife, sued appellants, George W. Zeluff and wife, on an earnest money contract for forfeiture of $5,000.00 earnest money placed in escrow by appellants at the time the contract was executed. David Rolke, a real estate agent, intervened claiming one-half of the earnest money under the provisions of the contract. At the conclusion of the trial without a jury judgment was entered in favor of appellees and the intervenor.

At the request of appellants, the court made its findings of fact and conclusions of law. The court found in substance that the earnest money contract provided that appellants agreed to purchase from appellees and appellees agreed to sell to appellants upon the terms and conditions set out in the earnest money contract, the property known as 45 Briar Hollow Lane, Houston, Texas; that the sellers and purchasers agreed to consummate the sale within 60 days from the date the title company approved the title to the property; that one of the provisions of the contract was that it was subject to purchasers obtaining a $50,000.00 loan at 6% interest for a period of twenty years; that subsequent to the execution of the contract and prior to August 8, 1960 the principal parties thereto agreed orally to a change in the agreement, such change being that the contract was to be subject to the purchaser obtaining a $50,000.00 loan at 6j4% interest for a period of twenty years instead of a loan in that principal amount at 6% interest per annum; that thereafter and before the expiration of the time provided in the contract for consummation thereof, appellees agreed to lend appellants and appellants agreed to borrow from appellees the principal sum of $50,000.00 at 654% Per annum for a period of 20 years; and appellees agreed to lend appellants and appellants agreed to borrow on a second lien note the principal sum of $10,000.00 at 6% per annum interest payable on or before one year, as part payment of the total consideration for the property; that the title company agreed upon by the parties approved the title on June 8, 1960, and that the sixtieth day thereafter fell on Sunday, August 7, 1960; that the contract provided that if the purchaser failed to consummate said contract as specified for any reason except title defects or other reasons set forth therein, the seller had the right to retain the $5,000.00 earnest money deposited by the purchaser with Stewart Title Company as liquidated damages for breach of said contract, and that the seller had to pay Rolke one-half of such deposit; that on Monday, August 8, 1960 appellees, as sellers in the contract, were ready, willing and able to consummate the sale, and did in fact tender performance to appellants as purchasers in the contract, but appellants failed and refused to consummate the agreement and complete the purchase of the property.

The court concluded that the contract was legally binding upon all parties; that the oral amendment of the provision of the contract relating to the rate of interest on the $50,000.00 loan did not invalidate the contract ; that the last day for performance of the contract was August 8, 1960, a Monday; that appellants breached the contract by their failure to consummate it within the time prescribed therein; that neither appel-lees nor the intervenor violated any of the provisions of the contract; and that by reason of the breach of contract by the appellants, the appellees were entitled to retain as liquidated damages the $5,000.00 earnest money and that the intervenor was entitled to one-half of that amount.

Appellants excepted to such findings of fact and conclusions of law, and thereafter requested additional findings of fact and conclusions in accordance with Rule 298, Texas Rules of Civil Procedure. Pursuant to such request, the trial court made additional findings that (1) the agreed oral change to the earnest money contract was not induced or brought about by fraud on the part of any of the parties to this suit, and (2) no party to this suit pled estoppel, nor does the record give rise to an estoppel in favor of any of the parties. Except as just set out, appellants’ request for additional and amended findings of fact and conclusions of law was denied and overruled by the court, to which action of the court the appellants excepted.

Appellants have predicated their appeal on two main contentions: (1) the earnest money contract was unenforceable for various reasons, the most significant of which was that a condition precedent therein having been subsequently changed by oral agreement of the parties (and there being no fraud or estoppel in the case), the requir-menls of the Statute of Frauds had not been met; and (2) if it is assumed the contract was enforceable, the mere fact that the last day of performance fell on a Sunday, did not as a matter of law have the effect of adding another day to the contract.

The Statute of Frauds in this State, so far as applicable, is as follows:

“No action shall be brought in any court in any of the following causes, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized: <t i}c ‡ sji
“4. Upon any contract for the sale of real estate * * (Article 3995, Vernon’s Annotated Texas Statutes)

Appellants’ first contention narrows down to the proposition that the subsequent oral agreement changing the rate of interest from 6% to 6)4% on the contemplated loan of $50,000.00 was in derogation of the provision that the sale was subject to the purchaser obtaining such loan at 6% interest for a period of 20 years, and was in violation of the Statute of Frauds.

The general rule is that where a contract for the sale of land is required to be in writing by the Statute of Frauds, and such contract covers the entire agreement between the parties, a subsequent oral amendment or change in the agreement will not be permitted. Appellants have cited numerous cases to the effect that oral changes or modifications of a written contract required to be in writing by the Statute of Frauds are unenforceable. Robertson v. Melton, 1938, 131 Tex. 325, 115 S.W. 2d 624, 118 A.L.R. 1505; Michael v. Busby, 1942, 139 Tex. 278, 162 S.W.2d 662; Kistler v. Latham, Tex.Com.App., 255 S.W. 983; Gambill v. Snow, Tex.Civ.App., 189 S.W.2d 33, writ ref., w, o. m.; Schofield v. Pyron, Tex.Civ.App., 257 S.W. 350, writ ref. Appellants contend that the general rule applies even though the contract may relate to a matter that need not have been stated in the original contract, citing Kistler v. Latham, supra; O’Mara v. Hall, Tex.Civ.App., 134 S.W.2d 348; Gambill v. Snow, supra; Parrish v. Haynes, 5th Cir., 62 F.2d 105.

The provision in the contract of sale reading:

“and subj ect to purchaser obtaining a $50,000.00 loan at 6% interest for a period of twenty years and also the execution of a second lien note on the above described property in the amount of $10,000.00 bearing 6% interest and payable on or before one year.”

is a condition precedent which must have occurred before the contract of sale in question could become operative and binding on the parties thereto.

In Couch v. Stewart, Tex.Civ.App.1947, 200 S.W.2d 642, there was a provision in the earnest money agreement that if a certain loan arrangement could not be made, the earnest money would be refunded. The court said:

“Our courts appear to have held in similar circumstances that such an instrument, or earnest money receipt, as this one, could not become operative as a contract-of-purchase until the occurrence of the .expressly stated condition precedent thereto, which, as abundantly shown in this instance, never did occur. Faulkner v. Otto, Tex.Civ.App., 230 S.W. 447; Burns v. American Nat. Ins. Co., Tex.Com.App., 280 S.W. 762, 765.”

To like effect, see Pena v. Security Title Co., Tex.Civ.App., 267 S.W.2d 847. In Reinert v. Lawson, Tex.Civ.App., 113 S.W.2d 293, the court stated:

“The parties to a contract may agree that it shall not become effective or binding until or unless some specified condition is performed or occurs, in which case there is no binding contract until such condition has been complied with. * * * When a promise is subject to a condition precedent, there is no liability or obligation on the promissor and there can be no breach of the contract by him until and unless such condition or contingency is performed or occurs. 10 Tex.jur. p. 396, § 225, and authorities cited; Ferguson v. Mansfield, 114 Tex. 112, 263 S.W. 894, 900, par. 4; First Methodist Episcopal Church v. Soden, 131 Wash. 228, 229 P. 534, 536, par. 3.”

The provision in question, being a condition precedent, goes to the very heart of the contract of sale, and is such that there could be no binding contract for the sale of the property until the condition occurred or was performed. In the instant case, there was no binding obligation upon appellees to sell and appellants to buy the property because the condition precedent never occurred. The fulfillment of the condition precedent was essential to the creation of a binding contract of sale, and hence such condition had to be in writing. It is clear that the obligation to sell and buy real estate is one of the essential elements of a contract of sale that must be evidenced by a writing signed by the party to be charged. Since such condition precedent directly and materially affects the obligation to buy and sell real estate and must, therefore, be in writing, any material change or modification therein would have to be in writing to comply with the Statute of Frauds. Certainly if such condition precedent had been oral it could not have been enforced because to enforce it would be to change a binding contract for the sale of realty into a contingent contract.

Appellees assert that since in this State the law is well settled that the Statute of Frauds does not require that the consideration in a contract for the sale of realty be expressed in writing, there may be valid oral changes or modifications in the medium or method of payment of such consideration when expressed in the writing. See Gulf Production Co. v. Continental Oil Co., 1942, 139 Tex. 183, 164 S.W.2d 488, and Garcia v. Karam, 1955, 154 Tex. 240, 276 S.W.2d 255, and authorities cited therein.

In the instant case we do not have a change or modification in the medium or method of payment of the consideration expressed in writing in the contract as in Gulf Production Co. v. Continental Oil Co., where there was an oral agreement to accept certain syndicate certificates in satisfaction of delay rentals. Nor do we have a situation similar to that in Garcia v. Karam, where there was a contract in writing providing that $20,000.00 of the purchase price was to be paid in merchandise from stock owned by Mr. Garcia, at invoice, and the contract was later modified to the .extent that the purchaser agreed to accept the stock of merchandise at a value of $20,000.00 without the necessity of taking an inventory. The Supreme Court in the latter case said:

“To answer the question thus presented, we should look to the written contract before modification and to the character of the modification itself. If neither the portion of the written contract affected by the subsequent modification nor the matter encompassed by the modification itself is required by the Statute of Frauds to be in writing, then the oral modification will not render the contract unenforceable.”

It is our view that in the present case the condition precedent had to be in writing since its fulfillment or performance was essential to create a binding obligation on the part of the parties to buy and sell real estate. Any material change or modification in the condition precedent had to be in writing, because the portion of the written contract affected by the subsequent oral modification had to be in writing. It is true that if such provision had not specified any rate of interest, it probably could have been shown by parol what the interest was to be. In the case at bar, however, the contract specifies in writing what the rate of interest is to be and makes such rate of interest a definite part of the condition precedent. The oral change in the rate of interest cannot be said to be an immaterial change. If such part of the condition precedent could be changed by parol, then it would seem that any other part thereof might be orally changed or eliminated completely. If such condition precedent could be eliminated by a parol agreement a binding contract of sale could thus be created by parol to take the place of a conditional contract not binding because the condition was not performed.

It is our view that the oral change in question comes within the Statute of Frauds. Since the evidence is undisputed that the purchaser did not obtain the $50,-000.00 loan for twenty years at 6%, the condition was not performed, and the contract of sale never became effective. Hence neither the appellees nor the intervenor have the right to forfeit or retain the earnest money deposit or any part thereof.

In view of our holding, it is unnecessary to discuss appellants’ other points.

Reversed and rendered.


text:
    G. & M. PRODUCTS CORPORATION, Appellant, v. CLAYTON SPECIALTIES, INC., et al., Appellees.
    No. 14491.
    Court of Civil Appeals of Texas. Houston.
    Feb. 4, 1965.

      Ragan & Russell, Houston, Cooper K. Ragan, John L. Russell, Houston, of counsel, for appellant.
    St. John Garwood, Jr., Houston, Fulbright, Crooker, Freeman, Bates & Jawor-ski, Houston, of counsel, for appellees.
   WERLEIN, Justice.

Appellant brought this suit against ap-pellees, Clayton Specialties, Inc., a corporation with its office and principal place of business in Corpus Christi, Nueces County, Texas, and Clayton Walters, C. A. Alphin and H. L. Graham, all residents of Nueces County, to recover commissions allegedly due it on account of sales promotion, sales managing and merchandising of appellees’ product known as the “Roll-Oil-er” and subsequently the “Bun Pan Oiler,” and introducing such equipment to the baking industry, pursuant to an alleged oral agreement that appellant was to receive a commission of 20% of the gross receipts from the sale of the first 300 units of such equipment, the 20% commission on the Roll-Oiler being fixed at a straight $250.00 per unit on the gross sales price of $1,-150.00.

Appellant sought to sustain venue in Harris County as to the corporation under Article 1995, Sub-sec. 23, Vernon’s Annotated Texas Statutes, on the ground that the cause of action or part thereof arose in Harris County, and also on the ground that the corporation had a representative in Harris County; and as to the individual ' appellees appellant sought to sustain venue in Harris County under Article 1995, Sub-sec. 29a, V.A.T.S., on the ground that the suit was brought to pierce the corporate veil and hold all the appellees as necessary parties jointly and severally liable. From the order of the court sustaining the pleas of privilege of all the appellees, appellant has perfected its appeal.

The evidence shows that Gunner E. The-lander was the president of appellant, G. & M. Products Corporation, which was domiciled in Harris County, Texas, and that he represented such company in whatever transactions it had with the appellees. He testified at considerable length, both at the hearing on the plea of privilege and by deposition with respect to an oral contract or agreement that he claimed he entered into with appellees in behalf of appellant. He testified that one Billy Gilmore called him in the early part of July, 1959, at his home in Houston, and requested that he come to Corpus Christi to see a Roll-Oiler to determine if appellant would undertake to promote it; that he went to Corpus Christi, met Gilmore there and was introduced to Clayton Walters, and examined the Roll-Oiler; that the three men went at night to a motel in Corpus Christi, where he estimated what the Roll-Oiler could be sold for and discussed with Gilmore and Walters the possibility of his representing them in the United States and Canada; that he told them they could sell 500 of them, and discussed a tentative agreement and told them he knew a couple of bakeries in Lafayette, La. where they could put the machines on trial, and that he would check into the matter of his representing them; that on returning to Houston he discussed the matter with appellant’s directors, namely, his wife and one Dr. Gribble, and then telephoned Walters from Houston on July 18, 1959, saying it was a deal and that he had revised the figure of 500 to 300 units; that he called Walters from Houston on July 27 relative to demonstrating two machines in Lafayette; that he learned from the deposition testimony of Walters that Clayton Specialties, Inc. was incorporated on July 28, 1959; and that the day after Labor Day Mr. Walters came to Houston with two machines and they left for Lafayette to install and demonstrate the machines.

When asked what he agreed to do for the 20%, Thelander testified that he agreed to sell 300 machines principally by exposure and making them known to the bakery trade. He further testified that he had made certain trips and contacts with bakeries; that he had received a letter in November, 1959 asking him to come to Corpus Christi and that he there saw Mr. Alphin, Mr. Graham and Mr. Walters, but didn’t discuss much of anything with them. In appellant’s petition, however, it is alleged that in the latter part of October, 1959 appellant received a letter requesting its representative to attend a meeting in Corpus Christi on November 16, 1959, which he attended and “ * * * there learned that the Defendants desired no longer to honor agreements first made by Walters with Plaintiff and subsequently by Clayton Specialties, Inc. at Houston * * He also testified that they wanted him to work for a $50.00 fee or commission on each machine sold, which he was unwilling to do. In a letter dated December 10, 1959 from C. A. Alphin, president of appellee, Clayton Specialties, Inc., to The-lander, it is recited that during Thelander’s visit to Corpus Christi it was explained to him that the working arrangement with appellant had not proven satisfactory and was terminated as of that date; but that they were willing to pay him a $50.00 fee to demonstrate and sell Roll-Oilers to prospects he had furnished them.

Thelander testified in his deposition that it was his understanding of the deal made that night in the motor court with Walters that appellant was to be paid commissions on all sales whether or not it had anything to do with them, and that it had an exclusive sales agreement covering the United States and Canada, and that that was something which was said by word of mouth ¡between him and Walters back in the motor court in July of 1959. When asked were there any other terms of the deal worked out there in the motel in Corpus, he testified that as he recalled, all of the terms, practically, were worked out there, but that he didn’t recall discussing the percentage given to co-ops, and that was the only thing that he didn’t recall being brought up; that every other essential in determining the deal was settled there, and there was no mention made of a corporation by either Gilmore or Walters. He was then asked: “What I wanted to get at was: Did you or Clayton Walters or anybody else change your initial deal around any— make any changes in it? after your first meeting there at Corpus?” He answered: “No, sir.”

In appellant’s original and amended petitions, adopted in its controverting affidavits, it is stated:

“ * * * in the latter part of October, 1959 Plaintiff received a letter from Clayton Specialties, Inc., signed by H. L. Graham requesting the representative of Plaintiff to attend a meeting in Corpus Christi on November 16, 1959, and Plaintiff’s employee attended an informal meeting there in such month and learned that the Defendants Walters, Graham and Alphin, owners, stockholders and/or directors of Clayton Specialties, Inc., desired no longer to honor the agreements first made by Walters with Plaintiff and subsequently by Clayton Specialties, Inc., at Houston, Harris County, Texas * *

Appellee, Clayton Walters, testified that the only agreement made was to be mutually terminable at the will of either party, and that it was simply to “spot” a few experimental “Roll-Oil” machines in six or seven bakeries, to see how they performed. He testified: “I told him (Thelander) we weren’t ready to go * * *. We just wanted some spots, about six or seven spots to set them in to work the bugs out of them * * He further testified: “I don’t think it has ever been brought out that this agreement we had that night at the Sun Valley Motel Mr. Thelander said himself— Mr. Gilmore said, ‘Would you want some kind of contract in writing if you would do it?’ He said, ‘No, as long as you are satisfied with my work we will do it. When you are not satisfied, you can fire me. I don’t want anything.’ ” He also testified that the agreement was strictly an experimental deal hatched up in three minutes, and it was a limited deal and not for 300 units; that the discussion came around to a possibility of 300 people in the United States that were making brown-and-serve rolls, and who could use the product if it was made properly, and that when The-lander called him relative to the Lafayette trip, Thelander told him that there were a couple of people there that were willing to try the machines and that “He didn’t say anything about 300.” When asked, “Didn’t you and Billy Gilmore want to find out if this thing had a place in the market,” he testified, “We hadn’t got to that point yet. We were building one up trying to make it operate.”

Mr. Thelander testified that he never knew Walters before the meeting on the night of July 13, 1959, and never knew that Clayton Specialties, Inc. was involved until he got his first commission check on September 30, 1959, and that he never met ap-pellees Alphin and Graham until the meeting in November, 1959 in Corpus Christi where he was informed that they no longer intended to honor his agreement. Walters testified concerning a meeting with Thelan-der at Victoria. He wanted Thelander to meet appellee Alphin, who was helping organize the company to patent and manufacture the Roll-Oiler, and that Alphin drove with him, Walters, to Victoria and they met Thelander. Mr. Alphin testified that at such meeting the latter part of July he made it known to Mr. Thelander that he, Alphin, was going to be sales manager of the company, and that his (Thelander’s) deal was to get out some 5 to 7 machines for trial purposes, and that “ * * * when we had developed the machine, we would try to work out a sales contract with him (Thelander) if he wanted to go along with us on that basis.” He further testified that they had two machines out at that time and they were going to put out 5 to 7 machines, and run those machines for experimental purposes only, and then when they had a machine perfected and were ready to go on the market with it, they would work out a sales deal with appellant.

From the testimony hereinabove referred to, it is clear that appellees’ version of the arrangement with Thelander bears little resemblance to that claimed by appellant. The court was warranted in accepting appellees’ evidence and in finding that appellant had failed to establish that it had a cause of action which arose in whole or in part in Harris County, despite the fact that Thelander testified that after the meeting in the motor court at Corpus Christi, he called Walters from Houston and said it was a deal, thereby accepting Walters’' alleged offer. Walters testified that The-lander did not tell him at the motor court that he was going to see some people that would handle the deal and that he (Walters) didn’t know about Thelander talking to anybody associated with him to see if he could handle it. According to appellees, the tentative agreement made in the motor court in July, 1959 was merely to spot or locate from 5 to 7 of the roll-oilers for demonstration purposes and “to set them in to work the bugs out of them.” There was evidence from which the court could find that appellant was suing upon an entirely different agreement from the one entered into and that the actual agreement was both made and breached in Nueces County where Walters authorized Thelander to go ahead and set up some machines for demonstration purposes, and that no part of the cause of action arose in Harris County.

The court could have found and concluded that appellant had been paid in full for the 7 machines used in demonstrations as testified by appellees. Thelander admitted being- paid for 7 machines, one of whiqh had been set up in Harris County. He referred to such machines as “my seven were demonstrators.” At the time Walters’ deposition was given in June, 1963, he testified there were then in Harris County two roll-oilers, two bun pan oilers, and one special roll-oiler. The record, however, is silent as to when they were sold. It is undisputed that appellant was paid a commission on one roll-oiler set up in Houston.

Furthermore, if the agreement was as testified to by Thelander, it was made with Walters and Gilmore before Clayton Specialties, Inc. was incorporated. Gilmore was not made a party to this suit. We find nothing in the record specifically showing that Clayton Specialties, Inc. entered into any agreement with appellant or that it adopted any agreement allegedly made between appellant and Walters, except as might be inferred from the fact that it paid appellant a commission on 7 demonstrator machines, and after the company was incorporated Walters and Thelander in the latter part of August or first part of September took two demonstrators to Lafayette, La. If such action amounted to an adoption or ratification by Clayton Specialties, Inc. of the agreement entered into between appellant and Walters, the trial court could have found that any such adoption or ratification was of the oral agreement completely made in the motor court in July, 1959, as related by Walters and not the agreement asserted by Thelander.

The law is well settled that a suit may be brought against a private corporation in any county in which the cause of action, or a part thereof, arose, and that the making of a valid contract and its breach, with resulting damage, gives rise to a cause of action in behalf of the aggrieved party. In Gleason v. Southwestern Sugar & Molasses Co., Tex.Civ.App.1948, 214 S.W.2d 640, the court said:

“Subdv. 23 of Art. 1995, Vernon’s Tex. Civ.Stats, provides in effect that suits against a private corporation may be brought in any county in which the cause of action, or a part thereof, arose. The making of a valid contract and its breach, with resulting damages, gives rise to a cause of action on behalf of the aggrieved party. Consequently, within the meaning of the foregoing venue statute, such a cause of action arises in part within the county where the contract is made or were it is breached. Silvers Box Corp. v. J. E. Stone & Co., Tex.Civ. App., 248 S.W. 1104; United States Pipe & Foundry Co. v. City of Waco, Tex.Civ.App., 100 S.W.2d 1099; National Life Co. v. Wolverton, Tex.Civ. App., 163 S.W.2d 654; Panther Oil & Grease Mfg. Co. v. Schumaker, Tex. Civ.App., 166 S.W.2d 205.”

It was also stated by the court in that case that a contract is made at the place where the offer of one of the contracting parties is accepted by the other party. See also El Laredo, Inc. v. Orr, Tex.Civ.App., 321 S.W. 2d 624; Alamo Products Co. v. French, Tex.Civ.App., 316 S.W.2d 765; Jackson Brewing Co. v. Clarke, Tex.Civ.App., 346 S.W.2d 149; Shamrock Oil & Gas Corporation v. Price, Tex.Civ.App., 364 S.W.2d 260.

The law is also well settled that a cause of action does not arise in the absence of proof by the plaintiff that a cause of action has arisen in his favor. In Victoria Bank & Trust Co. v. Monteith, Tex.Com. App.1941, 138 Tex. 216, 158 S.W.2d 63, 67, the Court said:

“A cause of action does not accrue or arise unless there is a cause of action. To prove that a cause of action has arisen in his favor a plaintiff must prove that he in fact has a cause of action. It was necessary, therefore, for the respondents Allison and others, plaintiffs in district court, when invoking this exception in subdivision 23 in order to defeat the plea of privilege, both to plead specifically and to prove facts showing that a cause of action arose in their favor against the defendant. In Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, the court rejected the theory that a plaintiff may defeat a plea of privilege by introducing merely enough evidence to prove the venue fact or facts prima facie, or to raise an issue, and that evidence offered by the defendant in contradiction of plaintiff’s prima facie case [would] be disregarded. It was held that the venue facts alleged must be proven as the allegations of any other plea or in the usual way in which proof is required to be made by a party upon whom the burden of proof rests.”

In Compton v. Elliott, Tex.Com.App., 126 Tex. 232, 88 S.W.2d 91, the court said:

“Since article 2008 authorizes appeal from the judgment sustaining or overruling the plea of privilege and contains nothing to indicate that the review by the appellate court shall be in any respect different from its review of any other case, the power of the Court of Civil Appeals in reviewing the fact findings of the trial court is the same as it is in any other appealed case. The certificate states that in this case the evidence on the issue as to the commission of the offense was sharply conflicting and was sufficient to support the trial court’s finding in favor of the defendant. Such being the record, the finding of the trial court should not be disturbed.”

See also Forester v. Foreman, Tex.Civ. App., 171 S.W.2d 190; Drexler v. Architectural and Commercial Sales, Tex.Civ.App., 375 S.W.2d 550; Davenport v. Cabell’s, Inc., Tex.Civ.App., 239 S.W.2d 833, and Lone Star Gas Co. v. Martin Linen Supply Co., Tex.Civ.App., 301 S.W.2d 243, in which the court held that plaintiff has the burden of proving the same cause of action alleged by him and relied upon in his pleadings.

Findings of fact and conclusions were not requested or filed. The trial court evidently believed the testimony of the ap-pellees and found that the agreement was not as testified to by Thelander; that the deal was to spot a few roll-oiler units and was terminable at will of the parties; that such deal was completely made in Corpus Christi and that no part of the cause of action arose in Harris County; that the agreement was terminated after 7 units had been placed, and that appellant was paid in full all commissions on those 7 units; that the only contract between the parties was that testified to by Mr. Walters which was made in the motor court in Corpus Christi in July of 1959 and that such agreement was terminated at the meeting in November, 1959 in Corpus Christi, and that if there was any breach of the agreement, it there occurred. We are of the opinion that there was ample evidence in support of the court’s order sustaining appellees’ plea of privilege.

It is well settled that every reasonable intendment must be indulged in favor of the judgment of the trial court and it should be affirmed if there is any evidence to support it upon any theory authorized by law. Banks v. Collins, 1953, 152 Tex. 265, 257 S.W.2d 97; James v. Drye, 1959, 159 Tex. 321, 320 S.W.2d 319, and cases therein cited. We have read the statement of facts and all the depositions, and it is our view that the holding of the trial court is not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust.

Since appellant has failed to prove that this suit may be lawfully maintained in Harris County as to Clayton Specialties, Inc. under Subd. 23 of Article 1995, V.A. T.S., it has, of course, also failed to establish that it may be maintained in Harris County as against any of the appellees under Subd. 29a, Article 1995, which provides that where there are two or more defendants in any suit brought in any county of this State and such suit is lawfully main-tainfd therein as to any of such defendants, then such suit may be maintained in such county against all necessary parties thereto.

Judgment affirmed.


author: LANGDON, Justice.

text:
    D. H. SEIGLER, Sr., Appellant, v. Ernest SEIGLER et al., Appellees.
    No. 16587.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 22, 1965.
    Rehearing Denied Feb. 19, 1965.

      Vincent Stine, Henrietta, Humphrey, Gibson & Darden, and Lee Humphrey, Wichita Falls, for appellant.
    Clyde Suddath, Henrietta, Jones, Fillmore, Robinson & Lambert, and Clyde Fillmore, Wichita Falls, for appellees.
   LANGDON, Justice.

This is a will contest case. The testator, A. R. Seigler, died on February 10, 1963. His last will and testament was executed on November 8, 1961. Application for its probate was made in Wichita County, Texas, on February 14, 1963, by D. H. Seigler, Sr., appellant, who was named as the principal beneficiary in such will. The appellees, Ernest Seigler and his brother and sisters, all of whom were the children of A. R. Seigler, challenged the jurisdiction of the Wichita County Court to hear and determine the application for probate. The cause was thereafter transferred to Clay County. After hearing, probate of the will was denied and an appeal taken to the District Court for a trial de novo. The case was tried to a jury. It found that at the time A. R. Seigler executed the will dated November 8, 1961, that (1) he was acting under undue influence of D. H. Seigler, Sr., and (2) that he was not of sound mind. On February 6, 1964, judgment based upon the verdict of the jury was entered.

The appellant’s appeal is based upon assignments contending the court erred because: (1) it permitted the contestants (ap-pellees) to open and close the arguments; (2) there was no evidence or insufficient evidence to support submission of the undue influence issue or the jury’s answer thereto and its submission constituted a comment on the weight of the evidence; (3) submission of the issue on unsound mind and the jury’s answer thereto is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust; and (4) the last two points complain of the appellees’ closing argument. We affirm.

Before any examination of the jury was commenced the appellees (contestants) by both oral and written motions admitted to and assumed the burden of proof upon the only issues involved, namely, undue influence and lack of testamentary capacity plead by them by way of affirmative defenses. The motions admitted the proponent’s (appellant’s) allegations and acknowledged his right to recover “except in so far as such right and recovery may be defeated by the pleadings and the evidence presented by contestants (appellees).” On the basis of these motions the appellees urged the court to grant them the right to interrogate the jury first, to present their evidence first and to open and close the arguments. The Court overruled the motions in so far as the interrogation of the jury and the presentation of the evidence was concerned, but, after the evidence was in and the charge prepared, granted them the right to open and close the arguments.

This action of the Court was proper in our opinion since the burden of proof on the whole case under the pleadings and on the issues submitted by the Court’s charge rested upon the appellees and because of their admission that appellant would be entitled to recover except in so far as he may be defeated in whole or in part by the allegations in appellees’ answer constituting a good defense which may be established on the trial. “The admission shall not serve to admit any allegation which is inconsistent with such defense, which defense shall be one that defendant (appellees) has the burden of establishing.” Rules 266 and 269, Texas Rules of Civil Procedure and authorities cited in Vernon’s Texas Rules of Civil Procedure.

The grounds of undue influence and testamentary incapacity for the voidance of a will are separate and distinct in nature and either is sufficient to set aside a will.

In considering the record and the evidence as a whole we have concluded that the jury’s findings of undue influence and incompetence on the part of the decedent at the time of the execution of the 1961 will are well founded on ample evidence and not against the great weight and preponderance thereof.

“If the conclusion is reached on appeal that a decedent was incompetent, the court need not determine whether the evidence supports a finding by the jury on the issue of undue influence.” 61 Tex.Jur.2d, p. 501, § 339.

We will therefore confine our opinion to the question of testamentary capacity. A portion of the extensive testimony on this question is summarized: A. R. (Albert) Seigler, testator, was seventy-eight (78) years of age on November 8, 1961, when the will in question was executed. He had resided in Clay County, Texas for more than fifty (50) years. He could not read or write.

His first wife was Callie Seigler. They were the parents of appellees. During their marriage they acquired 705 acres of land in Clay County on which they resided until June, 1941, at which time she died intestate. On her death her undivided one-half of the property, including the land, cattle and $12,000 in the bank, was inherited by the five children, appellees herein. The children gave their interest in the personalty to their father, A. R. Seigler. In 1943 four (4) of the children transferred their interest in the land to their father for a nominal consideration. The fifth child transferred her interest to her father in 1946. The bulk of the estate resulted from discovery and production of oil from the above land.

On February 12, 1946, A. R. Seigler married Ila Cunningham Seigler and they lived together in Clay County for approximately fifteen (15) years.

On August 7, 1957, A. R. Seigler executed a will in which he named his five children as his sole devisees, and sometime during the same year he suffered a severe congestive heart attack which caused him to be hospitalized on two different occasions. During this period he was treated and cared for by Dr. R. E. Hum of Henrietta, Texas.

Early in 1961 A. R. Seigler and Ila were separated and later divorced. After the divorce he lived with his son Ernest on the latter’s farm in Clay County for about six (6) months, until on July 26, 1961, he voluntarily entered Gray’s Rest Home in Henrietta (Clay County).

A few days after his entry into the Rest Home his half brother, D. H. (Dave) Seig-ler, Sr., made his appearance.

On November 7, 1961, Dave Seigler took A. R. Seigler to Wichita Falls, Texas, located in an adjoining county, and returned him to the Rest Home on the afternoon of November 8, 1961. On the latter date, while in Wichita Falls, A. R. Seigler executed the will made the subject of this suit, in which he left the bulk of his estate to his half brother Dave, and named the latter’s son as contingent devisee. Under the will he left $1.00 each to four of his children and $5,000 to one daughter. D. H. (Dave) Seigler, Sr., was named executor of the will without bond. He is the proponent of the will and appellant herein.

A. R. Seigler, on his return from Wichita Falls, continued as a guest in Gray’s Rest Home from November 8, 1961, the date of the will under contest, until November 23, 1961.

The will was prepared by and executed in the offices of attorneys selected by D. H. (Dave) Seigler. The decedent was taken to and from the office of the attorneys by Dave Seigler, who remained with him at all times. Dave is a resident of Wichita County, which adjoins Clay County. In spite of the geographical nearness, the half brothers had very little association. During the fifteen year period from 1946 to 1961 they had seen one another on two occasions, including one time at a funeral. There is nothing in the record to indicate that A. R. Seigler was ever acquainted with or had any association with D. H. Seigler, Jr.

There is testimony that prior to his physical and mental deterioration, A. R. Seigler disliked and distrusted Dave Seigler and had on occasions made derogatory comments concerning him which touched upon his honesty and integrity. There was testimony that Dave had “beat” him and other brothers and sisters out of their father’s estate, leaving A. R. Seigler with a pair of mules. The decedent was proud of his sons and daughters and had on more than one occasion expressed a desire to leave all of his estate to them. This desire was accomplished by his will of August, 1957.

It would appear that the later actions of A. R. Seigler, in executing a will leaving property to a half brother whom he disliked and naming a contingent devisee with whom he had little or no association while disinheriting his own children whom he had loved and respected and who, by their generosity, had made it possible for him to acquire the estate, speaks louder than any testimony that he did lack testamentary capacity. The jury had every right to believe this and apparently did. However, there is considerably more direct testimony bearing on the question of testamentary capacity from his family doctor, old time friends, his former wife who claims no interest in the estate, and the personnel of the Rest Home in Henrietta where he was a guest for the period before and after the contested will was executed.

These witnesses testified that in their opinion the decedent was of unsound mind before, at the time of, and after the will in question was executed. Their opinion was based upon their contact with, observations of and their dealings with the decedent, which in essence reflected: while residing with his son Ernest during the six months’ period following his divorce from Ila he was 78 years of age and deteriorated in mind and body. He suffered with high blood pressure, dizziness, headaches, arteriosclerosis (hardening of the arteries) heart failure, kidney trouble, loss of control over his bodily functions, was feeble, shaky and nervous and walked with a shuffle. His vision, memory and hearing were impaired. Mentally he was childish, repetitious, and easily affected emotionally in that he was easily upset and excitable. He was confused as to the nature, extent, location and value of his property, as well as the identity of his “folks”, his Rest Home associates and old friends. His talk was flighty, incoherent, unintelligent and generally made no sense. On occasions he could not complete sentences while speaking. He had become irrational, senile and so befuddled that he lost his prior business acumen and was incapable of attending to his business affairs and did not know in what banks his money was kept. He was helpless both physically and mentally. Beginning in 1957, his mental and physical condition gradually and progressively became worse and continued until the date of his death.

Gray’s Rest Home is small, being limited to 24 to 25 patients. Its personnel and patients are closely associated. During the period July to November, 1961, three of the ■employees at Gray’s, who were witnesses, ■daily conversed with, observed and administered to the personal needs of A. R. Seigler, seeing that he was fed, shaved and bathed. One of them administered medication, checked his blood pressure and physical ailments regularly each day. Based upon their observations of several months as to his actions, his speech, his general conduct and demeanor and appearance, his apparent state of confusion, his loss of memory, his inability to know and recognize members of his family and friends, the location and extent of his property, these witnesses stated that A. R. Seigler was, in their opinion, of unsound mind on November 8, 1961, when the contested will was made.

Dr. R. E. Hurn, personal physician of A. R. Seigler since 1957, visited him on September 30, 1961 and about October 2 of the same year. At such times he observed there had been a change in his mental condition since he last saw him in 1959. That there had been a progressive mental and physical ■deterioration. There was considerable testimony as to the effect of arteriosclerosis on cells and function of the brain, that there was no cure for it. He found A. R. Seigler confused and uncertain as to what was going on. That “in the state of confusion, not knowing where he was, being quite confused about other things, I would draw the inference that he would be incapable of reasonable judgment.” He further testified that decedent was not capable of making a logical deduction to determine the nature and extent of his property or who might be his natural heirs and that he was of unsound mind at the times he saw him. That the usual course of his condition would be continuous deterioration and that he would have been in the same condition on November 8, 1961, in that he would not have had sufficient mental capacity to engage in business transactions or realize the nature and extent of his property. Dr. Hurn stated that A. R. Seigler would not know where he was or how long he had been at the nursing home. That he was disorientated as to time and place and without any reason believed he was being held at the home. There was other testimony indicating that the decedent was delusional.

The Sheriff of Clay County, who had known Seigler in excess of 10 years, R. W. Bray, Deputy Sheriff of Clay County, a close friend of 15 years or more, and C. M. Peden, Justice of the Peace, lifelong friend, all stated that based on their observations they were of the opinion that A. R. Seigler was of unsound mind. There was considerably more testimony on- this point both pro and con, but suffice it to say that in our opinion the evidence was legally sufficient to support the findings of the jury that A. R. Seigler was of unsound mind at the time he executed the will on November 8, 1961, and thus lacked testamentary capacity. There was ample evidence to support the verdict of the jury and from the record as a whole it was not against the great weight and preponderance thereof.

“In accordance with the settled rule which declares that the determination of a trial court upon conflicting evidence is conclusive upon an appellate court, a judgment in favor of the contestant will be affirmed where the record discloses evidence pro and con upon the issue as to mental competency or ability. ‘It is not within the province of the appellate court to compare the probative force of the evidence of the opposing sides. * * * No question of preponderarme of the evidence is involved.’ ‘The question of testamentary capacity is ordinarily one of fact for the jury.’

“A reversal will not be ordered because the proponent produced a greater number of witnesses than did the contestant, the latter’s witnesses being shown to have had the better opportunity to be informed as to the decedent’s mental state. Again, a finding that the deceased was incompetent is sustainable although the persons who were present at the execution of the instrument have united in testifying that he was of sound mind or competent; proof of delusion is support for a judgment in favor of the contestant.” 44 Tex.Jur., p. 574, § 34, and authorities cited in 9 Tex.Jur. Ten Year Supplement, pp. 732-733, § 34 and pocket parts. (61 Tex.Jur.2d §§ 27, 28, 29, 30, 32 and 339.)

The record on this appeal was filed on June 15, 1964, and the briefs on August 24, 1964 and October 22, 1964 by the appellant and appellees, respectively. On November 20, 1964, a very limited portion of the closing argument, including only the statements complained of, certified to by the official court reporter, was submitted for filing as a part of the record. It was not approved by the trial judge. It contained no objections and exceptions or rulings, if any made by the court pertaining thereto. This procedure was not agreed to by opposing counsel. The only reference in the record relating to improper argument is contained in the appellant’s motion and amended motion for new trial. The error, if any, complained of was not properly preserved by bill of exceptions and the supplement to the record was not offered for filing within the time and manner provided in Rule 386, T.R.C.P.

“The complaint as to the argument was not preserved in the proper way, that is, by a bill of exceptions. While the correctness of the excerpts from the court reporter’s notes was not challenged, this is not tantamount to an agreement on the part of opposing counsel to bring forward for review the objections to the argument by any other method. Only when the complaining party has presented the matter in a bill of exceptions is the opportunity afforded to his adversary and to the court for the addition of any appropriate qualification that might render harmless argument that otherwise would be improper or prejudicial. This rule has been almost unanimously adhered to. Smith v. United Gas Pipe Line Co., 149 Tex. 69, 228 S.W.2d 139 (and other authorities cited).” Pritchett v. Highway Insurance Underwriters, 158 Tex. 116, 309 S.W.2d 46 (1958).

All points of error are overruled and the judgment of the trial court affirmed.

Affirmed.