author: NYE, Justice.

text:
    Bob E. RICE, Appellant, v. Adrian LAMBERT, Appellee.
    No. 228.
    Court of Civil Appeals of Texas. Corpus Christi.
    Oct. 27, 1966.

      Milton W. Walton, Corpus Christi, for appellant.
    Wm. DeWitt Álsup, Corpus Christi, for appellee.
   OPINION

NYE, Justice.

This is a suit in the nature of an action for an accounting growing out of a joint venture in the purchase of a single automobile. The plaintiff Bob E. Rice, sued the defendant Adrian Lambert, seeking recovery of the amount of his contribution to the joint venture by way of a debt and alternatively for damages for fraud, breach of contract and conversion arising out of the agreement between the plaintiff and defendant. The case was tried before the court without a jury, resulting in a judgment ordering the automobile in question to be sold, and after expenses and costs of such sale have been deducted, the balance to be divided equally between the plaintiff and the defendant. The plaintiff, being dissatisfied with the judgment, has perfected his appeal to this court.

The court filed findings of fact and conclusions of law in response to request by the plaintiff. The plaintiff admits on appeal that the court’s findings are correct but disagrees with the court’s conclusions of law, i.e. that there was no conversion, fraud or breach of contract by the defendant. Briefly, the facts as found by the court and those which are undisputed are as follows:

The defendant operated a used car lot across the street from plaintiff’s service station. For some time prior to the transaction in question the defendant traded at plaintiff’s service station and the parties became friendly. In the early part of December, 1962, the plaintiff approached the defendant regarding the possibility of investing some money in an automobile to be sold on defendant’s lot. Defendant was desirous of obtaining more cars to be offered for sale and plaintiff wanted to invest some money in a used automobile that could be sold and a profit obtained. The plaintiff advanced $500.00 to the defendant by check with nothing written on it to indicate the nature of the advance. The oral agreement was to the effect that plaintiff was to advance $500.00 on the purchase of a “clean fast selling” used automobile to be purchased at wholesale price; and that out of various purchases made by the defendant, the plaintiff could select the car that he wanted his money invested in as part of the purchase price. The defendant was to advance the balance of the purchase price and after deducting the cost of transporation of the car from place of its purchase to Corpus Christi, the car was to be sold and the profits divided equally. The defendant purchased several automobiles, one of which was a 1957 Chevrolet, which he purchased in San Antonio for $750.00. It was this car that plaintiff chose as being the one for the joint venture.

Unknown to the plaintiff at the time he invested this money in the vehicle the defendant’s business was operating at a financial loss. About one month later the defendant was forced to discontinue his business because of losses and as a result thereof, and without consulting plaintiff, the business was closed. It was undisputed that defendant offered the car for sale for approximately one month and no charges were made for overhead, cost of transportation, or getting the car in condition for sale.

Following the closing of defendant’s used car lot, the parties had a dispute concerning the disposition of the automobile. There was no prior agreement with respect to the possibility that the joint venture would not be carried out. Plaintiff’s version was that he offered to give the defendant $250.00 and take the automobile, but the defendant refused to do so because the car was mortgaged at the bank and he could not separate this car from other cars mortaged on a floor plan agreement. The defendant’s version was that he offered the plaintiff the car for $250.00 cash, or, that he would pay the plaintiff $500.00 and he would take the car. Defendant stated plaintiff refused this offer and wanted the car for himself for the amount he had invested in it ($500.00). The testimony was that the defendant was further indebted to the plaintiff for gasoline and other service items at plaintiff’s service station. This contributed to the dispute between the parties. Irrespective of the exact nature of the dispute it is clear that a dissolution of the partnership venture ceased when defendant closed his business.

Thereafter, the defendant on advise of his attorney stored the automobile for some eight months or longer. Partly because of such storage the car deteriorated and was badly in need of repair in order to make it again ready for sale. The defendant expended some $560.00 for repairs to the automobile, including the costs for garage storage ($12.00 per month). The defendant subsequently opened his car lot at a different location, offered the car for sale, but never was able to sell the vehicle. No effort was made on the part of the defendant to sell the car, however, from January of 1963 until October of 1964.

The court found that defendant had possession of the vehicle at all times and that the possession of the car was never demanded of him by the plaintiff. During a portion of the time that the car was in the defendant’s possession he used it for his own personal use. The defendant did not execute a note evidencing the advancement nor did plaintiff ever make a demand that he do so. Plaintiff had invested $500.00 in the vehicle, the defendant $810.00, which included the original $250.00 plus $560.00 expended for repairs and storage. Additional costs, for bringing the car from San Antonio and getting the car ready for sale in December of 1962, were not included in these expenses. The court found that the automobile was worth $1,000.00 in December, 1962, and $600.00 at the time of trial.

The court concluded that the parties had an oral agreement in the nature of a joint venture, the profits of which were to be shared equally; that plaintiff’s $500.00 was not a loan but a contribution to the joint venture; that the defendant did not convert the automobile and the $500.00 to his own use and benefit; that there was no fraud on the part of the defendant; nor did he breach the oral agreement. The court concluded that while defendant invested more money in the vehicle in question than the plaintiff ($810.00 to $500.00), the parties should each have one half of the proceeds from the sale of the automobile inasmuch as some of the deterioration in value and some of the costs for repairs were due to defendant’s storage of the vehicle. The defendant assigns no cross points to this appeal.

Appellant’s points one through five complain in effect of the failure of the trial court to find that defendant had breached the contract. Points six through ten that the trial court erred in not determining that defendant converted the automobile and points eleven through thirteen that the trial court erred in not holding that the defendant was guilty of fraud.

It is plaintiff’s theory that because the defendant failed to sell the car he breached the oral contract between the parties and should be subject to damages or in the alternative, that when the defendant closed his lot he converted the vehicle to his own use, thereby damaging the plaintiff in the amount of the lost profit that he could have made had the vehicle been sold as agreed upon, plus the return of his investment. Plaintiff’s theory as to fraud is that the defendant was operating at a financial loss unknown to the plaintiff and that he failed to disclose this fact to him to his damage.

We will consider appellant’s points in reverse order. The trial court was correct in concluding that there was no fraud perpetrated by the defendant on the plaintiff. The parties entered into the agreement in good faith. There was no evidence that the defendant intended to deceive the plaintiff. It was undisputed that the plaintiff approached the defendant at the outset with the joint venture proposition and that defendant made no representations regarding the status of his business at the time they entered into the contract. See Higgin-botham-Bartlett Co. v. Powell, Tex.Civ. App., 270 S.W. 193, err. dism.; Dyer v. Caldcleugh & Powers, 392 S.W.2d 523, Tex.Civ.App. (1965) ref. n. r. e.; Motors Ins. Corporation v. Freeman, Tex.Civ.App., 304 S.W.2d 580. Appellant’s points eleven through thirteen are overruled.

The trial court was further correct in concluding that the defendant did not convert the automobile and $500.00 advanced by the plaintiff. The conversion has been defined as being the unauthorized assumption and exercise of the right of ownership over chattels belonging to another, to the exclusion of an owner’s rights. 89 C.J.S. Trover & Conversion § 1, p. 531. To the same effect see Zerr v. Howell, 88 S.W.2d 116, Tex.Civ.App., n. r. e. The un-controverted evidence was that the plaintiff voluntarily gave the defendant $500.00 to be invested in an automobile. The defendant purchased the car and gave plaintiff an interest in the car of his choice exactly as he represented he would. Plaintiff permitted the defendant to have the title in his name and possession of the car at all times. At no time did plaintiff ever make demand for possession of the vehicle. Defendant’s possession was acquired lawfully. See Davidson v. Atmar, 243 S.W. 662, Tex.Civ.App. Appellant’s points six through ten are overruled.

Plaintiff contends that in his agreement with the defendant the defendant agreed and was obligated to sell the vehicle in question; that his failure to sell the car constituted a breach of his contract; that he should have judgment for his $500.00 plus one half of the prospective profits; and that the trial court’s conclusion of law that defendant did not breach the contract is incorrect. The evidence is that defendant remained in business for a month after the agreement was entered into, during which time the automobile was held for sale on defendant’s lot. The defendant testified in answer to an interrogatory that he intended to sell the automobile at the highest obtainable price. The car was offered for sale at a second car lot but the fact remains that no sale was ever consummated. When the defendant was forced to close his lot, the parties were unable to agree upon a disposition of the vehicle in question. The dissolution of the partnership relationship occurred at this time.

In general, after dissolution, each partner has an equal right to possession of the firm assets, and has the right and duty to dispose of the assets for the purpose of liquidating the firm affairs. 68 C.J.S. Partnership § 363, p. 870. It then was incumbent upon both partners to dispose of the assets of the venture.

The defendant, therefore, not only had the duty to dispose of the vehicle, he had the contractual obligation to do so. This duty and obligation is not to be overshadowed, however, with the like duty of the plaintiff. Plaintiff also had a duty to dispose of the assets of the venture. He had the right to obtain possession of the automobile for the purpose of liquidating the firm affairs. At no time did he make a. demand for possession. He did not file suit promptly, but waited nearly a year. No effort was made on his part for the appointment of a receiver for the protection of his assets. The defendant may have breached the contract and the trial court may have erred in concluding that the contract was not breached, however, the trial court nevertheless reached the correct result.

It has been observed that a joint venture is a species of partnership and the joint venture relationship is subject to dissolution and termination upon the same basis as a conventional partnership. Booth v. Wilson, 339 S.W.2d 388, Tex.Civ.App (1960), ref. n. r. e. It is the general rule that when dealing with partnership or joint venture agreements, the remedy of the complaining party or his co-venturer is in equity for an accounting and settlement of the partnership affairs. Thompson v. Duncan, 44 S.W.2d 904, Tex.Com.App. (1932). Since a joint venture relationship is in the nature of a partnership, losses must be shared as well as profits, 33 Tex.Jur.2d, § 2, p. 288.

In accounting, the court found, and it was undisputed that the plaintiff invested $500.00 and the defendant $250.00 originally. Thereafter, the defendant spent $560.00. This would amount to $310.00 more money that defendant had in the vehicle than the plaintiff. In addition to this, the defendant paid out the cost of transporting the vehicle from San Antonio to Corpus Christi and paid the overhead expense that would have been attributable to the vehicle during the time it was offered for sale. The court made no findings as to how much this would amount to. The trial court granted judgment giving the plaintiff and defendant each a fifty percent ownership in the net proceeds of the sale of the vehicle.

It is evident that there was a balancing of the equities by the court exercising its equitable powers. The depreciation due to the lengthy storage and the costly repairs due to deterioration caused in some degree by defendant’s failure to sell the vehicle, were charged for the most part against the defendant.

Where a dissolution of the partnership has occurred, the final decree should provide for a final adjustment of all the uncontroverted questions before the court with respect to the partnership accounting and distribution. 68 C.J.S. Partnership § 445, p. 998. Plaintiff plead that defendant had not accounted for the automobile and prayed for equitable relief. While neither party specifically prayed for an accounting, the case was tried on this theory and no point of error has been urged in this court complaining of the pleading. This was the holding of the court in the joint venture case of Murphy v. McLaughlin, 374 S.W.2d 754, Tex.Civ.App. (1964), ref. n. r. e. The Court went on to say:

“The theory on which the judgment in this case was rendered is well stated in 1 Am.Jur.2d Accounts and Accounting, § 63, pp. 437-438, as follows:
‘Where an action for an accounting is brought in a court of general equitable jurisdiction the court has a duty, upon finding that an accounting is proper, to conduct the accounting, to try all the issues, administer full relief to the parties, and grant a judgment for the balance found due * * *.’ ”

No attack has been made on the trial court’s findings as to the accuracies of the accounting of the assets, or as to the money spent. Under the facts of this case, we hold the trial court administered full relief to the parties.

Finding no reversible error, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    Stella COBB, Appellant, v. CITY OF DALLAS et al., Appellees.
    No. 16795.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 28, 1966.

      Finklea & Finklea and Robert W. Fink-lea, Dallas, for appellant.
    N. Alex Bickley, City Atty., and H. P. Kucera, Dallas, for appellees.
   BATEMAN, Justice.

This is an interlocutory appeal from the denial of a temporary injunction sought by Stella Cobb, a widow, and First National Bank in Dallas, independent executor and trustee of the estate of her deceased husband, Robert O. Cobb, to restrain the ap-pellees City of Dallas and Minyard Properties, Inc. from closing a public alley and constructing private improvements thereon.

At different times in the years 1947-1951 the Cobbs acquired Lots 7, 8, 9 and 10 in Block 5370 of the City of Dallas. These lots are parallel to each other and front on Garland Road. The rear boundaries of these lots adjoined certain property of W. B. Rasansky. Rasansky’s property also adjoined the northeast side of Lot 10. The four deeds by which the Cobbs acquired the lots described them by metes and bounds, not by lot or block numbers, and at those times there was actually no alley at the rear of the lots.

On June 12, 1953 Rasansky conveyed to the City of Dallas a 15 foot strip of land through his property for alley purposes, so situated as to become a common boundary between the Rasansky property and the rear boundaries of the Cobb property. The deed recited that it conveyed an easement to the City for alley purposes and customary uses in connection therewith, and reserved the fee title to Rasansky, his heirs and assigns, subject to said easement. The alley bisected the Rasansky property, dividing that part which adjoined Lot 10 of the Cobb property from the part to the rear of the Cobb lots.

The Rasansky property was thereafter in March 1955 conveyed to A. W. Minyard, and in 1959 to Minyard Properties, Inc. In 1959 the alley was improved and the Cobbs dedicated a small portion from the corner of their property, amounting to about 80 square feet, thereby enabling the alley to connect with a proposed alley to the west of the Cobb property. Both the deed to Minyard and that to Minyard Properties, Inc. conveyed the fee title of the alley, subject to the easement. Being desirous of erecting a large food store on the property, with adequate off-street parking, Minyard Properties, Inc., by negotiation with the City of Dallas, was given permission by the City by ordinance to close the alley dedicated by Rasansky on condition that another alley be opened along the northern edge of its property. This relocated alley curved down the western extremity of the Minyard property and connected with the proposed alley to the west ■of the Cobb property, utilizing the dedicated 80 square feet off the corner of the Cobb property mentioned above, but was otherwise not contiguous to the Cobb property. The new alley was dedicated pursuant to this agreement and simultaneously with the enactment of the ordinance closing the first alley.

In seeking the injunction restraining ap-pellees from blocking and closing the first alley and constructing private improvements thereon, the appellants complain that they were not given any notice of the City’s intention to do so, that it was an “abuse of discretion on the part of the Dallas City Council” thus to abandon and quitclaim a public alley to permit Minyard Properties, Inc. to make a better development of its property, all without advance notice to the public or abutting property owners; that the City of Dallas and Minyard Properties, Inc., having acquired the land burdened with the prior alley easement, in reliance upon which easement the Cobbs had granted the City an additional easement and expended money to pay a paving assessment, are estopped to reclaim the alley for private building purposes. We do not agree with any of these contentions and are of the opinion that the temporary injunction was properly denied.

In the first place, the Cobbs cannot be said to have acquired any private or contractual rights in the alley. When they bought their lots there was no alley to the rear of them and their deeds did not refer to any recorded plat showing an alley abutting their property. When the alley was dedicated by Rasansky, it was wholly on property contributed by Rasansky. The small portion contributed by the Cobbs off one corner of their property did not form a part of the alley in question but merely served to make a more convenient connection with another proposed alley. The Cobbs did not pay Rasansky any consideration by which they could hope to acquire any private rights in the alley. The fact that they, as members of the public, actually used the alley after its dedication and paving, gave them no such private rights. Vernon’s Ann.Civ.St, Art. 5517.

One may of course acquire a private easement in a street or alley existing contemporaneously and harmoniously with the public easement, and while the City might have the power to relinquish the public easement, the private right would be left intact. Dallas Cotton Mills v. Industrial Co., Tex.Com.App., 296 S.W. 503; Miller v. Dallas County, Tex.Civ. App., 252 S.W.2d 470, wr. ref. See also Hartwell Iron Works v. Missouri-Kansas-Texas R. Co., Tex.Civ.App., 56 S.W.2d 922, no wr. hist. But no such situation prevails here. Instead, appellants find themselves in the same position as that of the appellant in Farmers & Merchants Comp. & W. Co. v. City of Dallas, Tex. Civ.App., 335 S.W.2d 854, wr. ref. n. r. e., wherein this court, speaking through Chief Justice Dixon, said: “Since the record shows that appellant did not purchase with reference to any street, it did not acquire any private rights to any street.” See also Eidelbach v. Davis, Tex.Civ.App., 99 S.W.2d 1067, wr. dism.; Lee v. City of Stratford, Tex.Com.App., 125 Tex. 179, 81 S.W.2d 1003, opinion adopted by the Supreme Court.

Moreover, the fact that appellants paid an assessment to cover part of the cost of improving the alley in question did not give them any private rights in the alley which could not be destroyed without compensation when the City abandoned the alley and ordered it closed. This same contention was raised by appellants in Farmers & Merchants Comp. & W. Co. v. City of Dallas, supra, and we overruled it there, as we do here. See also Gillespie v. Fuller Construction Co., Tex.Civ.App., 66 S.W.2d 798, wr. ref.; City of Chicago v. Union Bldg. Ass’n, 102 Ill. 379; State v. City of Elizabeth, 54 N.J.L. 462, 24 A. 495; 2 Nichols on Eminent Domain, 3rd Ed., § 6.34.

Appellees deny that the alley was closed exclusively for the private benefit of Min-yard Properties, Inc., calling our attention to the fact that, if the alley had not been closed when it built its large food store, the parking area available to its customers would have been bisected by the public alley, causing traffic congestion and hazards which a relocation of the alley would eliminate. Appellees argue from this that at least one of the chief purposes, if not the only one, in closing the alley in question was to accomplish a benefit to the public by eliminating traffic congestion and hazards, and that the relocation of the alley effectually restored to the public any benefits destroyed by closing the original alley.

Vernon’s Ann.Civ.St., Art. 1175, Sec. 18, empowers the city to determine the necessity for, or the desirability of, abandoning and closing alleys. The City of Dallas exercised that power by an ordinance duly enacted in conformity with law. There was no legal requirement of advance notice to appellants of an intent to pass the ordinance. In the absence of a showing that this action was taken solely for the purpose of promoting private enterprise, the law presumes that the City Council acted in the public interest. The appellants, having failed to carry the burden of making such a showing, will not be heard to object to the proceeding. Hartwell Iron Works v. Missouri-Kansas-Texas R. Co., Tex.Civ. App., 56 S.W.2d 922, no wr. hist.

Being of the opinion that the trial court correctly applied the law to the undisputed facts of this case and committed no error in refusing the temporary injunction prayed for, we affirm the judgment.

Affirmed.


author: SHARPE, Justice. NYE, Justice SHARPE, Justice. NYE, Justice

text:
    DELHI PIPELINE CORPORATION, Appellant, v. LEWIS, INC., Appellee.
    No. 138.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 28, 1966.
    First Rehearing Denied Oct. 20, 1966.
    Second Rehearing Denied Nov. 17, 1966.

      Geary, Brice & Lewis, Dallas, James P. Ryan, of Fischer Wood, Burney & Nesbitt, Corpus Christi, for appellant.
    Homer E. Dean, Jr., of Lloyd, Lloyd, Dean & Ellzey, Alice, Toufic Nicolas, of Horkin, Nicolas & Nicolas, Corpus Christi, for appellee.
   OPINION

SHARPE, Justice.

This appeal is from a judgment rendered in a jury trial for Lewis, Inc., appellee, plaintiff below, in the sum of $31,303.07, against Delhi Pipeline Corporation, defendant below. The parties will sometimes be referred to as “Lewis” and “Delhi”.

Lewis sued for damages in the amount of $25,914.76 for alleged breach of oral and written contracts, the latter having been executed on October 3, 1963, and the former having been entered into shortly thereafter, all covering pipeline projects in Victoria County, Texas; for $50,000.00 as exemplary damages and $8,000.00 for attorney’s fees. By way of cross-action, Delhi sued for $4,932.45 due to alleged breach of contract by Lewis. Lewis is in the business of constructing pipeline systems and Delhi is a gas transmission company. It is undisputed that Lewis was an independent contractor and that Delhi terminated the contracts before completion of the work by Lewis.

The jury verdict established the amount of Lewis’ damages as follows: $17,451.00 for expenses incurred prior to termination of the contracts; $7,500.00 for loss of profit; $5,000.00 for attorney’s fees; and $15,000.00 for exemplary damages. The trial court granted Delhi’s motion for judgment non obstante veredicto and to disregard the jury findings concerning exemplary damages only and denied Lewis a recovery in such respect. The judgment allowed interest on the amount of $24,951.50 from October 17, 1963 to its date of entry on September 12, 1964.

Appellant Delhi urges 37 points of error which are briefed in six groups. Appellee Lewis urges 7 reply points, similarly briefed, and one counterpoint concerning the refusal of the trial court to award exemplary damages. The points will be discussed as grouped for briefing by the parties.

Under the first group of points (1-6), relating primarily to Special Issue 1, Delhi contends that the trial court should not have rendered judgment based upon such jury finding; that there is no evidence and it is factually insufficient to raise such issue and support the answer thereto; that the trial court should have granted judgment non obstante veredicto on the entire case pursuant to Delhi’s motion; and, in any event, should have granted a new trial.

Special Issue 1, its accompanying definition and the jury answer are as follows:

“Special Issue No. 1.
“Do you find from a preponderance of the evidence that under all the circumstances which existed on or prior to October 17, 1963, Plaintiff Lewis, Inc., was proceeding with due diligence on his contracts with Defendant Delhi Pipeline Corporation to install the pipelines in question ?
Answer ‘yes’ or ‘no’.
Answer: Yes.
“By the term ‘due diligence’ as used herein is meant such diligence as would be required for Plaintiff to complete the contracts in accordance with the terms and provisions of the contracts between Plaintiff and Defendant and the plans and specifications.”

Delhi’s argument under its first group of points is that Lewis had agreed to perform the work in a manner satisfactory to Delhi’s representative, Mr. C. P. Butler, and this was the real issue; that Lewis’ work was not satisfactory to Butler, and his dissatisfaction was conclusive on the question of performance and breach; that the question submitted by special issue 1 was immaterial ; that Lewis’ failure to plead, prove and secure a jury finding of bad faith on the part of Delhi’s representative is fatal to Lewis’ recovery; that, in any event, there is no evidence and it is factually insufficient to raise and support the jury finding on special issue 1 that Lewis was proceeding with due diligence. Lewis contends that the trial court correctly submitted the ultimate and controlling issue of diligent compliance with the contracts and that the jury answer is amply supported by evidence. We agree with Lewis.

Delhi 'relies upon the rule that, a contract may require that one party’s performance shall be to the satisfaction of the other party or, in some instances, to that of a designated third party such as an architect or engineer. See Atlas Torpedo Co. v. United States Torpedo Co., 15 S.W.2d 150 (Tex.Civ.App.1929, n. w. h.); Dixie Oil Co. v. McBurnett, 6 S.W.2d 83 (Tex.Com.App.1928, Judg.App.); Griffith v. Thomson, 244 S.W.2d 722 (Tex.Civ.App. 1951, n. w. h.); Golden State Mutual Life Insurance Co. v. Kelley, 380 S.W.2d 139 (Tex.Civ.App.1964, wr. ref., n. r. e.); Goodrum v. State, 158 S.W.2d 81 (Tex.Civ. App.1942, wr. ref., w. m.); City of San Antonio v. McKenzie Const. Co., 136 Tex. 315, 150 S.W.2d 989 (1941); Coppinger v. Republic Natural Gas Co. (10 Cir. 1948), 171 F.2d 4; Thompson-Starrett Co. v. La Belle Iron Works, (2 Cir. 1927), 17 F.2d 536. But that rule is operative only where it appears from express terms of the contract or from plain language therein that it was the intention of the parties that the determination of the person to whom the decision is entrusted would be final and conclusive; and such a provision is not to be implied. Black v. Acers, 178 S.W.2d 152 (Tex.Civ.App.1944, wr. ref.); Eckert-Fair Construction Company v. Flabiano, 342 S.W.2d 629 (Tex.Civ.App.1960, wr. ref., n. r. e.).

The sole provision concerning termination is found in the written contracts as follows:

“Contractor agrees to commence said work within - days from the date of this contract and to complete said work with due diligence and, in the event Contractor fails to commence said work within the time above specified or, having begun said work, abandons it or for any reason suspends or refuses to continue it for a period of five days (unless Contractor is prevented from continuing by reasons beyond his control), Company shall have the right to take over said work and complete it at Contractor’s expense.”

The provisions as to satisfaction of the representative of Delhi in certain particulars are contained only in the specifications which were incorporated by reference into the contracts. We agree with appellant that in such case we must consider the agreements made by the parties in the specifications along with those contained in the job contracts. Tower Contracting Co., Inc. v. Flores, 157 Tex. 297, 302 S.W.2d 396 (1957); 17A C.J.S. Contracts § 299, pp. 136-137. However, there is no provision in the specifications or the job contracts that the determination of dissatisfaction by Delhi’s representative would be final, binding or conclusive; neither is there a provision that such dissatisfaction would furnish a basis for Delhi to terminate the contracts. None of the provisions for termination by Delhi is shown to exist.

The trial court correctly submitted the controlling issue, as hereinabove set out, and the jury found upon factually sufficient evidence that Lewis was proceeding with due diligence on his contracts with Delhi to install the pipelines in question on and prior to October 17, 1963, the date upon which Delhi refused to allow Lewis to proceed with the work and terminated the contracts. On the record here, an issue of bad faith on the part of Delhi’s representative was not required. Delhi’s first group of points (1-6) is overruled.

Under Delhi’s second group of points (7-19) relating primarily to special issues 2 and 3, the contentions are made that there is no evidence and that the evidence is factually insufficient to raise such issues and to support the answers thereto; that the court erred in awarding Lewis a judgment for all expenses (under issue 2) and for profit (under issue 3), part of which was under the oral contracts, on which no right of recovery was established; that neither issues 2 or 3 represent the proper measure of damages; and that the amounts found were excessive. Special issues 2 and 3, together with the jury answers thereto, read as follows:

“SPECIAL ISSUE NO. 2.
“What amount of money do you find from a preponderance of the evidence would cover the reasonable and necessary expenses incurred by Lewis, Inc. in performance of the contracts in question before the termination of the contracts by Defendant Delhi Pipeline Corporation ?
Answer in dollars and cents.
Answer: $17,451.00”
“SPECIAL ISSUE NO. 3.
“From a preponderance of the evidence what do you find would have been the amount of profit, if any, which Plaintiff Lewis, Inc., would have reasonably expected to derive if it had been permitted to perform its contracts with Defendant Delhi Pipeline Corporation to completion?
“In this connection, you are instructed that loss in profits is measured by the difference between the contract price and what it would have cost the contractor to carry out the contract in accordance with its provisions and the plans and specifications.
Answer in dollars and cents.
Answer: $7,500.00.”

The applicable rules may be stated as follows:

“Where the contractor is prevented by the owner from doing any work under the contract, or from completing the work after partial performance, or where he is justified in abandoning further performance because of a breach by the owner, he may recover, in addition to compensation for the work already done, any damages that he may have sustained by reason of the owner’s breach of the contract, including the profits that he would have made had he been permitted to perform, expense incurred in the performance of the contract up to the time of the breach, less any materials purchased by reason of the contract but not used, and damages sustained by his being compelled to sell at a loss material prepared for use under the contract.” 10 Tex.Jur.2d, Building Contracts, § 62, pp. 71-72.
* * * * * *
“Loss of profits that he would have derived had he been permitted to perform may be recovered by the contractor where he has been prevented by the owner from completing the contract, or where he has justifiably abandoned further performance because of a breach by the owner, if this element of damages can be proved with reasonable certainty and was shown to be within the contemplation of the parties.” 10 Tex.Jur.2d, Building Contracts, § 63, p. 74.

The above-stated rules find support in the cases of Austin Stone Industries v. Capitol Powder Company, 290 S.W.2d 689 (Tex.Civ.App.1956, wr. ref., n. r. e.) ; Texas Associates v. Joe Bland Const. Co., 222 S.W.2d 413 (Tex.Civ.App.1949, wr. ref., n. r. e.) ; Sullivan v. Dubis, 271 S.W.2d 316 (Tex.Civ.App.1954, wr. ref., n. r. e.); Kleiner v. Eubank, 358 S.W.2d 902 (Tex.Civ.App.1962, wr. ref., n. r. e.) ; Osage Oil and Refining Co. v. Lee Farm Oil Co., 230 S.W. 518 (Tex.Civ.App.1921, wr. ref.).

The trial court correctly submitted the ultimate issues concerning the damages suffered by Lewis. Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940). The evidence was factually sufficient to support the findings on special issues 2 and 3. Delhi’s second-group of points (7-19) is overruled.

Under its third group of points (20-30) Delhi asserts eleven contentions relating to rulings of the trial court on the pleadings, evidence and argument of counsel in connection with the subject of exemplary damages, all included under one statement and argument. Lewis, by its fourth reply point and counterpoint one contends that exemplary damages were properly plead and proved and that the trial court should have granted judgment for same.

Special issues 4 and 5 and the answers thereto read as follows:

"SPECIAL ISSUE NO. 4.
“Do you find from a preponderance of the evidence that the Plaintiff Lewis, Inc., is entitled to exemplary damages against the Defendant Delhi Pipeline Corporation ?
Answer ‘yes’ or ‘no’.
Answer Yes.
“You are instructed that before you can assess exemplary damages, you must believe and find from a preponderance of the evidence that Defendant Delhi Pipeline Corporation acted wilfully, maliciously and with utter disregard for the rights of the Plaintiff Lewis, Inc.
“In this connection you are also instructed that punitive damages may be assessed as punishment for a wrongful act done, if the facts warrant the same. In awarding such damages, if any, you may consider the sense of wrong and insult to the Plaintiff Lewis, Inc., and the damage to his reputation, if any as a result of the wrongful acts, if any, of the Defendant Delhi Pipeline Corporation. The amount to be fixed, if any, is in the sound discretion of the jury.
“If you have answered Special Issue No. 4, ‘Yes’, then answer Special Issue No. 5; otherwise, do not answer same.”
"SPECIAL ISSUE NO. 5.
“What amount of money, if any, if paid now in cash, would compensate Plaintiff Lewis, Inc., for its exemplary damages, if any.
Answer in dollars and cents, if any.
Answer $15,000.00”

Lewis filed motion for judgment in the total amount of $46,199.10, which included $15,000.00 for exemplary damages. Delhi filed motion for judgment non obstante veredicto and to disregard certain special issue findings, including those on special issues 4 and 5. The trial court granted Lewis’ motion only to the extent of the amounts found by the jury in answer to special issues 2, 3 and 6, aggregating $29,-951.00, plus interest, and granted Delhi’s motion for judgment non obstante vere-dicto and to disregard the jury answers to special issues 4 and 5, the effect of which was to deny Lewis a recovery for exemplary damages in the amount of $15,-000.00.

We agree with the trial court and appellant on the points here involved. The rule in this State is that exemplary damages cannot be recovered for a simple breach of contract, where the breach is not accompanied by a tort, even though the breach is brought about capriciously and with malice. A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629 (1943); Houston & T. C. R. R. Co. v. Shirley, 54 Tex. 125 (1880); Hooks v. Fitzenrieter, 76 Tex. 277, 13 S.W. 230 (1890). The rules applicable to recovery of exemplary damages against a corporation are aptly stated in the case of Chronister Lumber Co. v. Williams, 116 Tex. 207, 288 S.W. 402 (1926), as follows:

“ ‘It is now the settled law of this state, that, to make a corporation liable for exemplary damages, the “fraud, malice, gross negligence, or oppression” which must authorize and justify the same, must have been committed by the corporation itself, or by some superior officer representing it in its corporate capacity; or, if committed by a subordinate servant or agent, the act must have been either previously authorized, or subsequently ratified or approved by the company or such superior officer, after knowledge of the facts.’ ”

In King v. McGuff, 149 Tex. 432, 234 S.W.2d 403, 405 (1950), the Court also said:

“While the bulk of our decisions on this subject of the master’s liability in exemplary damages for the gross negligence of the servant are those involving corporate masters and large enterprises, and indeed the only authority cited below, Chronister Lumber Co. v. Williams, 116 Tex. 207, 288 S.W. 402, opinion adopted by this court, is just such a case, the general rule prevailing in Texas may, for the purposes of this suit, be stated the same as in the Restatement, Torts, § 909, as follows:
‘Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if,
‘(a) the principal authorized the doing and the manner of the act, or
‘(b) the agent was unfit and the principal was reckless in employing him, or
‘(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.’
“See Ft. Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397; Morton Salt Co. v. Wells, 123 Tex. 151, 70 S.W.2d 409; Southwestern Gas & Electric Co. v. Stanley, 123 Tex. 157, 70 S.W.2d 413. Our decisions on the analogous subject of charging a master or principal with exemplary damages for the malicious misconduct of a servant or agent involve both individual and corporate defendants and follow the same general principles applied in cases of gross negligence. See Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, and cases cited at page 225 of the latter report.”

Although Lewis’ pleadings were sufficient in the absence of special exceptions to allege a cause of action for exemplary damages, the jury findings on special issues 4 and 5 would not authorize judgment in such respect for Lewis in the absence of other essential findings. Lewis did not request submission of issues concerning tortuous acts on the part of officers representing the corporation in its corporate capacity nor by lesser representatives of Delhi; nor as to whether the conduct of the latter had been authorized or ratified by the corporation. Counsel for Delhi clearly pointed out the absence of such findings in its motions filed after verdict and the trial court correctly sustained Delhi’s motion for judgment non obstante veredicto. There is no jury finding in this case which would establish liability against the Delhi Corporation within the Rules announced in the authorities above cited; neither does the evidence conclusively establish such liability.

Affirmance of the judgment denying exemplary damages to Lewis removes that question from the case, and our remaining consideration is to determine if errors were committed by the trial court which affected the remainder of the verdict or the judgment. We do not believe that such error is reflected by appellant’s third group of points (20-30), and, in any event the errors, if any, would be harmless under Rule 434> Texas Rules of Civil Procedure. Appellant’s third group of points (20-30) and appellee’s counterpoint one are overruled.

Under appellant’s fourth group of points (31-33), relating to special issue 6, the contentions are made that there is no evidence and that the evidence is factually insufficient to raise and support an award of $5,000.00 for Lewis’ attorney’s fees; that such amount is excessive; and that attorney’s fees cannot be recovered under Art. 2226, Vernon’s Ann.Civ.St, where the suit is for breach of contract.

We hold that Lewis’ claim for recovery of attorney’s fees falls within the provisions of Art. 2226, V.A.C.S. The jury finding on special issue 2 establishes reasonable and necessary expenses by Lewis in performance of the contracts amounting to $17,451.50, of which $9,471.58 was expended for labor. Delhi’s superintendent-inspector testified that labor was the larger part of the expense of such project. Contracts for labor done and materials clearly are within the provisions of Art. 2226, V.A.C.S., and a corporation may recover reasonable attorney’s fees in connection with those items. Ginther v. Southwest Workover ’’Company, 286 S.W.2d 291, 295 (Tex.Civ. App., 1956, n. w. h.) ; Nolen v. Rig Time, Inc., 392 S.W.2d 754 (Tex.Civ.App., 1965, wr.ref., n. r. e.); Wyche v. Wichita Engineering Company, 374 S.W.2d 728 (Tex.Civ.App., 1964, n. w. h.); and see United States of America for the use and benefit of Caldwell Foundry and Machine Company, Inc., v. Texas Construction Company, 237 F.2d 705 (5 Cir. 1955); Lone Star Producing Company v. Gulf Oil Corporation, 208 F.Supp. 85, 93 (U.S.D.C., Eastern Dist.Tex.1962).

Delhi relies upon Van Zandt v. Fort Worth Press, 359 S.W.2d 893 Tex. (1962), which involved suit by a newspaper corporation for classified and display advertising. The Supreme Court held that the claim was neither-upon a sworn account nor for personal services rendered, and that attorney’s fees were not recoverable under Art. 2226, V.A.C.S. However, the Court also made statements favorable to Lewis’ position herein, in part, as follows:

“In quoting from Levitt v. Faber [20 Cal.App.2d Supp. 758, 64 P.2d 498] we are not to be understood as holding that services will lose their character as personal services within the meaning of Art. 2226 because in the performance of the services the claimant uses the material, implements, tools or equipment essential to the service. To perform personal services the lawyer must use his books, the doctor his diagnostic or surgical instruments, the carpenter his tools. We would thus agree with the Supreme Court of New Hampshire which held in Hale v. Brown, 59 N.H. 551, 558, that ‘the personal services of the lumberman include the use and earnings of his oxen, chain, canthook, and his own team and sled, if these are actually used by him and are essential to the service rendered’.”

The trial in this case lasted for a week before the jury. The statement of facts contains 594 pages and numerous exhibits. It reflects the taking of numerous depositions which were referred to or used, consultations by Lewis’ attorneys with him and the officials of Delhi, and other preparations for the trial. Opinion evidence was offered by an experienced trial attorney that a reasonable attorney’s fee would be $8,000.00. There was evidence to support the award of $5,000.00 as attorney’s fees and it is not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust; neither is it excessive. Delhi’s fourth group of points (31-33) is overruled.

Delhi’s fifth group of points (34-36), relates to special issue 7, reading as follows:

“SPECIAL ISSUE NO. 7.
“What do you find from a preponderance of the evidence to be the reasonable and necessary costs, if any, to Defendant Delhi Pipeline Corporation to complete the contracts with Plaintiff Lewis, Inc., to install the pipelines in question?
Answer in dollars and cents.
Answer $ none”

Delhi contends that there is no evidence to support such issue; that the uncontradicted evidence showed that the necessary and reasonable cost to Delhi of completing the work under the written contract was $61,932.45; that the trial court should have set aside the answer to such issue and entered judgment for Delhi upon its counter claim, in the amount of $4,932.45, representing the difference between the contract price and the amount paid by Delhi to complete the work; that the said answer was so excessive as to demonstrate prejudice, bias or sympathy on the part of the jury and a new trial should have been granted. The last-mentioned contention is not briefed.

The finding of the jury on special issue 7 was immaterial in view of the jury findings on special issues 1 through 6, which established Lewis’ right of recovery and for attorney’s fees. Issue 7 was submitted in connection with Delhi’s cross-action upon which liability was not established against Lewis. Since no right or recovery in favor of Delhi was established,' the amounts expended by it to complete the contract would be immaterial and eliminated from consideration. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (1939). As the issue was framed and argued, it could be understood to inquire concerning the “reasonable and necessary costs, if any” of completing the contract over and above the amount of Lewis’ contract for a turnkey job, and, under that view, could properly have been answered “none”. Delhi’s fifth group of points (34-36) is overruled.

Delhi’s point 37 asserts that “In view of the cumulative effect of the many errors committed by the trial court, Appellant was deprived of its right to a fair trial, and the trial court erred in not granting a new trial for this reason.” The statement under the point reads as follows: “No statement need be given as an introduction to this Point because the same is based upon the numerous errors committed during the course of the trial, including the argument to the jury.” There is no reference to any specific jury argument or alleged error, and the point is not sufficiently briefed to require consideration. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197 (1956). Nevertheless, under the instant point we have considered each of Delhi’s remaining points of error and argument made thereunder and we have held that error or reversible error has not been established by them. If errors were committed by the trial court, they were harmless, and their cumulative effect would not present reversible error so as to authorize a new trial. Rule 434, T.R.C.P. Delhi’s point 37 is overruled.

The judgment of the trial court is affirmed.

NYE, Justice

(concurring).

Appellee sued for $50,000.00 as damages for willful and malicious conduct on the part of the appellant which was alleged to have damaged appellee’s reputation. The jury awarded $15,000.00 as exemplary damages. The trial court excluded this amount from the final judgment.

Appellant in his points 20 through 30, all relating to the exemplary damage issues, contends in effect that the trial court erred: in admitting into evidence a certain exhibit offered by the plaintiff and certain evidence relative to punitive damages; in overruling appellant’s objections and request for instructions to disregard, when appellee argued to the jury concerning this certain plaintiff’s exhibit; in overruling objections to certain testimony outside of the pleadings; in submitting special issues 4 and 5; and in permitting appellee to make certain arguments to the jury relative to punitive damages. Appellee by counterpoint contends that the damages should be reinstated, and added to the judgment.

Appellee sought damages for libel and slander, pleading that such sum represented actual damages to his reputation. Nowhere in the pleadings did appellee seek “punitive damages” nor was the term “exemplary damages” used in the petition. The original petition seeking such damages was excepted to and the exceptions were sustained by the trial court. Appellee’s amended petition then set forth certain libelous or slanderous statements or writings, contending that the contractor was damaged. This paragraph in the amended petition relating to such damages reads as follows:

VI.
“In addition thereto, Contractor would show that the Owner acted willfully, maliciously and with utter and complete disregard for the rights of Contractor; has called other owners and operators of pipe lines throughout South Texas and advised them it was terminating Contractor’s contracts and made false allegations with reference to Contractor’s ability to erect and construct pipe lines, as hereinafter alleged, which willful and malicious conduct on Owner’s part has damaged Contractor’s reputation as a pipe line contractor in the amount of $50,000.-00, which sum Owner ⅛ obligated to pay Contractor. On or about October 16 and 17, 1963, Owner’s duly authorized agent, Tommie E. Lohman, in the course of his employment called Mr. Coyle of Sun Oil Co. and Mr. Bell of Mobil Oil Co. and told them in substance that contractor, Lewis was not capable of laying larger oil field pipe lines, didn’t know what he was doing, didn’t have proper equipment and that Owner Delhi was firing him off their job; on or about the same dates, Owner Delhi’s duly authorized agents, Butler and Quinn, told Tom Kelso, Andrew Quillan and Harry Ebers in substance, ‘Lewis doesn’t know what he’s doing. Let’s go ahead and break the s. o. b.’ ”

The principle of law involved is correctly stated in McDonough v. Zamora, Tex.Civ. App., 338 S.W.2d 507, ref., n. r. e., by Justice Pope. See collection of cases cited therein.

“Punitive damages are not recoverable in actions for breach of ordinary commercial contracts, though the breach is brought about capriciously and with malice.”

The allegations in plaintiffs petition which would entitle him to exemplary damages would have to be confined to tort, independently of any right to recover damages by reason of the breach of the contract. As stated in the opinion: (McDonough v. Zamora, supra)

“In other words, one may not be limited to a contract measure of damages if he actually pleads and proves a tort which is in addition to or coincident with a contract breach. It has been said that punitive damages are permitted when a breach is accompanied by ‘willful acts of violence, malicious or oppressive conduct.’ ”

The intentional breach of a contract is not punishable by punitive damages. A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629. The cases which apply the correct rule are those in which punitive damages have been allowed if and only if a distinct tort is alleged and proved independent but coincident to the contract action. The reason why the trial court was authorized to disregard the jury findings as to the exemplary damages was because the plaintiff did not plead, or request, or submit a special issue concerning the tortuous conduct of the defendant or his agents. This cannot be the basis for recovery through the instruction as submitted by the trial court to the jury, i. e., “Punitive damages may be assessed as punishment for wrongful acts done, if the facts warrant the same.” There were no facts proved or found by the jury authorizing exemplary or punitive damages.

The trial court was further in error in instructing the jury that: “In awarding such damages, (punitive) if any, you may consider the sense of wrong and insult to the Plaintiff Lewis, Inc., and the damage to his reputation, if any as a result of the wrongful acts, if any, of the Defendant Delhi Pipeline Corporation.” Special issues 4 and 5 should not have been submitted. However, the denial of the exemplary damages by the trial court when judgment was entered, cured such error.

At the time of the trial, appellee announced to the court that Lewis was withdrawing and abandoning its claim for libel and slander, and that in lieu thereof it was seeking punitive damages for malicious breach of contract. The rule of law is that in order to permit a recovery of exemplary or punitive damages, the breach of contract must be attended by some intentional wrong, injury, abuse or gross negligence which amounts to an independent tort. The fraudulent intent done with a fraudulent act is not a sufficient basis for the awarding of punitive damages. Unless the ap-pellee having alleged and produced some evidence of some willful acts of violence, malicious or oppressive conduct, then the trial court would not be authorized to submit an issue. If on the other hand appellee had plead and proved such tortuous act, then he would have to go one step further and have a finding that the principal (corporation) authorized, ratified or approved the act; or that the person responsible for the act was representing the appellant corporation in his managerial capacity and acting within the scope of his employment. I am unable to find from appellee’s pleading, such an act or count that would entitle him to an issue for exemplary damages. Macfadden’s Publications v. Hardy, Tex. Civ.App., 95 S.W.2d 1023 (1936, wr. ref.).

The conduct complained of by the ap-pellee in its pleadings may have been a separate and independent cause of action for actual and punitive or exemplary damages. However, we are not called upon to decide this point. In this case the independent tort must be coincident to the contract breach. Tortuous conduct committed after the breach of contract, no matter how malicious or inexcusable will not form the basis for recovery of punitive damages for a breach of contract. Oklahoma Fire Insurance Co. v. Ross, Tex.Civ.App., 170 S.W. 1062. In the Oklahoma Fire Insurance Co. v. Ross case, the Court was called upon to examine a judgment awarding actual damages for the breach of contract and in addition punitive damages. The Court said:

“ * * * the fact that the proof may have shown a cause of action for slander afforded no ground for a recovery of punitory damages for a breach of the contract, when the slander referred to was no part of and not connected with the breach of the contract. Hence we conclude that the plaintiff was not entitled to recover anything as punitory damages, and the court should have so instructed the jury.”

See 25 C.J.S. Damages § 120, pp. 1126-1129.

As to the other points alleged as error by the appellant, a review of the evidence discloses that much of the testimony complained of grew out of the actual breach of the contract by which the court submitted issues as to damages for such breach. In the Oklahoma Fire Insurance Co. v. Ross, supra, it was contended that reversible error was not committed in permitting the plaintiff to introduce testimony tending to sustain the slanderous charges, where such damages were not allowed. The Court said and I agree that:

“ * * * If it be conceded that the testimony referred to was not admissible, we see no reason to suppose that it had any influence with the jury in determining whether or not the insurance company had breached the contract, and the amount of actual damages the plaintiff was entitled to recover for such breach. Doubtless that testimony was considered by the jury and spent its full force in determining the question and of the amount of punitory damages; but, as we have concluded to reverse and render upon that issue, we hold that the insurance company is entitled to no further relief because of the admission of that testimony.” Oklahoma Fire Insurance Co. v. Ross, supra.

I am not convinced, therefore, that the appellant has demonstrated that such error that has been complained of and committed, amounted to such a denial of the rights of the appellant, as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in this case. Rule 434, T.R.C.P. I concur in the result that the judgment of the trial court should be affirmed.

OPINION ON MOTION FOR REHEARING

SHARPE, Justice.

As a part of its motion for rehearing appellant moves for findings of fact relating to its points numbers five, eleven and eighteen. These points involve a contention that because each of the jury answers to special issues 1, 2 and 3 was against the overwhelming weight and preponderance of the evidence that the trial court erred in refusing to grant a new trial. In view of appellant’s request, further consideration will be given to these points. Under the contentions made, the Court of Civil Appeals considers and weighs all evidence in the case, even though there is some evidence of probative force to support the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The jury found in answer to special issue 1 in substance that on October 17, 1963 ap-pellee Lewis was proceeding with due diligence on the contracts with appellant. Although much evidence pro and con was introduced by both sides on the issue, it is apparent that the jury accepted the testimony of Lewis’ witnesses, and it could have concluded that some of the evidence offered by Delhi was favorable to Lewis’ position of due diligence. The testimony tended to show that Lewis started work on the hardest part of the job, which was the slowest part of the work, and that this was good pipeline practice; that Lewis used the best equipment and best men available for the work; that the work progressed constantly during the time Lewis was allowed to stay on the job; that Lewis never abandoned the contract and even worked on Sunday; that inspectors for Delhi constantly interfered with and obstructed the work, requiring excessive jeeping or testing of the pipe for wrapping defects; that delays were caused by the furnishing of defective pipe by Delhi; that Delhi failed to furnish profiles for bends in the pipe under creek crossings, failed to supply pipe in proper time and to legally clear the right of way; that Delhi required wider ditch than specified and compelled repairs of pipe not called for by the specifications; that, despite harassment, Lewis corrected all things demanded of him. Delhi’s basic position is that the testimony shows that much of the work done by Lewis was not to the satisfaction of Mr. C. P. Butler, its representative; that many objections were made by him, that Butler was not satisfied with the way the work was progressing.

We have held that special issue 1 was correctly submitted as a controlling issue and that Butler’s dissatisfaction with Lewis’ work was not conclusive. We adhere to our holding that the jury answer to that issue was supported by factually sufficient evidence that Lewis was proceeding with due diligence on the contracts. The answer to special issue 1 was not against the overwhelming weight and preponderance of the evidence so as to be manifestly wrong and unjust.

By the answers to special issues 2 and 3 the jury found that Lewis had incurred expenses in performance of the contracts amounting to $17,451.50 and would have derived a profit of $7,500.00 if allowed to complete the same. Evidence was introduced in detail concerning the expenses incurred by Lewis, and there was testimony that the amount found by the jury was necessary and reasonable. These costs were itemized on an exhibit and testified to by Lewis’ bookkeeper. One of Delhi’s representatives testified that 20% of the work had been completed which was of the value of $5,000.00, and another testified that 50% of the 8⅝" pipe was complete and 15% of the over-all job was complete; that the reasonable value of work done by Lewis was $8,000.00; that labor was the largest expense; and that most of the work on a large segment of the pipeline had been done. Lewis testified as to his estimated costs and profit and outlined the basis for same. He estimated his profit at between $9,500.00 and $10,000.00. One of Delhi’s representatives agreed that a reasonable profit on the job, which involved $58,375.00, would have been 20%. On that basis the profit would have been $11,774.00. The jury finding of $7,500.00 for reasonably expected profit is well within the testimony offered. The answers to special issues 2 and 3 are, in each instance, not against the overwhelming weight and preponderance of the evidence so as to be manifestly wrong and unjust.

The findings contained in this opinion on rehearing and in our original opinion, along with the jury findings will constitute the findings in response to the motion of appellant in connection with its points five, eleven and eighteen.

Appellant’s motion for rehearing is without merit and is overruled.

NYE, Justice

(concurring).

Appellant in his motion for rehearing has again attempted to demonstrate the harmful effect of the admission of evidence concerning exemplary damages. Each case must be looked at separately to determine if reversible error was committed ; “whether the error affected the result”. 31 TLR 1, “The Doctrine of Harmless Error in Texas”, Robert W. Calvert, Chief Justice, Supreme Court of Texas. Although the admission of such evidence was error, it was directed toward the exemplary damage special issues and spent its full force in determining these questions. Rule 434, T.R.C.P. I concur in the result.


author: GREEN, Chief Justice.

text:
    ALICE NATIONAL BANK et al., Appellants, v. William R. EDWARDS et al., Appellees.
    No. 179.
    Court of Civil Appeals of Texas. Coitus Christi.
    Oct. 13, 1966.
    Rehearing Denied Nov. 17, 1966.

      Kenneth Oden, of Perkins, Floyd, Davis & Oden, Alice, Denman Moody, of Baker, Botts, Shepherd & Coates, Houston, Patrick J. Horkin, Jr., of Horkin, Nicolas & Nicolas, Corpus Christi, for appellants.
    Frank W. Nesbitt, of Fischer, Wood, Burney & Nesbitt, Corpus Christi, for ap-pellees.
   OPINION

GREEN, Chief Justice.

This is an appeal from an order of the District Court of Kenedy County, Texas, denying to appellants a mandamus sought against appellee Hon. William R. Edwards, Special Judge in Probate in cause No. 348 pending in the County Court of Kenedy County.

In 1961, in cause No. 344 in the County Court of Kenedy County, the will of Mrs. Sarita K. East, deceased, and certain codicils thereto were admitted to probate without contest, and Alice National Bank, Jacob S. Floyd, and Louis Edgar Turcotte were named as Independent Executors of the estate. Floyd and Turcotte have since died, and the Bank is the sole remaining Independent Executor. Thereafter, certain parties purporting to be heirs of Mrs. East filed a will contest action, being No. 348 in the County Court of Kenedy County, to set aside the order of probate entered in No. 344.

A motion was filed by contestants in No. 348 to appoint a temporary administrator to take over and administer certain of the assets of the Estate, which motion was granted by the court over the objection of the Bank. Another motion was filed in said cause by contestants to remove the Bank as Independent Executor, and to enlarge the powers of the temporary administrator, or, in the alternative, to require the Bank to post a bond. This latter motion is now pending in the cause. In order to secure evidence for discovery purposes, and for use on any and all issues raised in the pending cause No. 348 as provided in Rule 186a, Texas Rules of Civil Procedure, contestants caused to be issued and served a subpoena duces tecum to take the oral deposition of B. R. Goldapp, the executive vice-president of appellant Alice National Bank. This subpoena commanded Goldapp to produce at the time of the taking of his deposition a number of documents described on Exhibit A of the subpoena in paragraphs 1-19 thereof. Appellant Bank filed a motion as provided in Rules 177a, 186a and 186b, T.R.C.P. for protective orders as to items 2, 8, 11, 17, 18, and 19, requesting that these items be stricken from the subpoena duces tecum, and that contestants be instructed to refrain from questioning Goldapp with reference thereto. Upon a hearing, the probate judge entered his order overruling the motion of appellants, and denying all relief sought by them. However, the judge did postpone the date for the taking of the deposition.

Following the order of the probate judge, this action for a writ of mandamus was filed in the District Court of Kenedy County. In their petition, the appellants after stating the grounds upon which their prayer for relief were based alleged that the order of the probate judge “was and is void and of no force or effect, that such order is patently violative of mandatory provisions of the law, and the probate judge has failed to perform the legal duty and obligation, or in the alternative, the ministerial duty of granting protective orders as prayed for in such motion.” Appellants prayed for a temporary injunction and a writ of mandamus ordering the probate judge to vacate and set aside his order overruling the Bank’s motion for certain protective orders as aforesaid, and that he be required to enter an order relieving the witness B. R. Goldapp from producing the objectionable items, and directing that such witness not be questioned upon his oral deposition regarding any of such items and that any line of questioning looking toward any type of accounting or the attempted removal of the Independent Executor, or to enlarge the powers of the appointed temporary administrator be prohibited during the oral examination of the witness; and further asking for general relief. Temporary injunction to stay the taking of the deposition until further orders was entered by the Court.

After a trial before the court, at which the only testimony offered consisted of documentary evidence, the district judge entered his order denying appellants any of the relief sought, and dissolving the temporary injunction.

During the trial and prior to the time all parties rested, there was no offer by the appellant to show to the trial court for his inspection the documents and papers etc. referred to in paragraphs 2, 8, 11, 17, 18, and 19 of Exhibit A of the subpoena, and which the Bank objected to producing at the taking of the deposition, nor was there any tender, in sealed envelopes or otherwise, of any of such material in evidence. In appellants’ reply brief filed in this Court, argument was made as follows:

“ * * * From the order of the District Court in the present proceeding, the record is entirely devoid of any showing that the District Court even inspected the materials as to which protective orders were sought. It is clear that the District Court had jurisdiction to entertain the writ of mandamus here sought. Alice National Bank v. Edwards, 383 S.W.2d 482 (Corpus Christi Civ.App. 1964, error ref’d n. r. e.). If the District Court had that jurisdiction, then it is clear that the Court had a duty to inspect these materials (which were sent up with the transcript in this case, Tr. 75 and 78). There is no showing in the record that the Court discharged that duty. The very failure of the Court even to inspect these materials is in and of itself fundamental error. * * * ”

Thereafter appellees requested leave, in order to have the record speak the true facts, to file a supplemental transcript containing an order to supplement the record on appeal signed by the district judge who tried the cause, reading in part as follows:

“IT FURTHER APPEARING TO THE COURT, And it being a fact within the personal knowledge of this Court, that after the close of the evidence by all parties at the time of the trial of this cause in the District Court, the ‘materials’ which this Court is charged with a failure to inspect, were delivered to the undersigned District Judge by Kenneth Oden, one of the attorneys of record above named, for the purpose of examination and inspection by the undersigned District Judge, said materials being delivered in a sealed package; that the undersigned District Judge, in chambers, personally opened said sealed package, and personally inspected and examined each and every instrument and document therein contained, and did thereafter re-insert all of said materials in said package, and reseal the same; that after the undersigned District Judge had inspected and examined each such instrument and document, and after said Judge had duly considered the same and the contents thereof, said District Judge did announce his ruling in this cause and did thereafter sign and enter the final judgment from which said appeal has been perfected, and did return said sealed packed (sic) to the said Kenneth Oden; and,
IT FURTHER APPEARING TO THE COURT That the above described action of the District Judge is material to a proper disposition of said appeal within the meaning of Rule 428, T.R. C.P., and that such actions do not, and could not, appear in the record on appeal in either the Statement of Facts or the Transcript by reason of the fact that the above described actions of the District Judge were taken after the close of the evidence and in the privacy of his chambers, and that, therefore, the trial court should direct a supplemental record to be certified and transmitted by the Clerk of the trial court supplying such omitted matter: ”

Over appellants’ objections, we grant leave to file this supplemental transcript in order to have the record speak the true facts as to this matter. Rule 428, T.R. C.P.; Tucker v. Boyd, 156 Tex. 262, 293 S.W.2d 841, on rehearing, p. 843; Murray v. Murray, Tex.Civ.App., 350 S.W.2d 593, on rehearing, p. 600.

Even in the absence of this supplemental order of the trial court, the record reflects that documents which appellants contend are those which appellees sought to have produced by the subpoena duces tecum (although not in any manner mentioned or identified during the trial) were inspected by the district judge. After the judgment was rendered, appellants filed a Motion to Send Up Originals to the appellate court, including “papers, documents, and things of whatever kind of character submitted to the Court for the Court’s investigation and inspection in connection with the case and not viewed by defendants, such instruments, evidence, documents and things to be sealed in envelopes and made a part of the record of this case on appeal.” This motion was granted by the Court.

Since this cause is before us on appeal, the question to be determined is whether or not the district judge abused his discretion in refusing to issue the writ of mandamus requiring the probate judge to set aside his order, and to enter an order relieving the witness Goldapp from producing certain evidence in obedience to the subpoena duces tecum. On appeal, the appellate court will not reverse a refusal of the trial court to grant a writ of mandamus unless it is made to appear that the trial court abused his discretion in denying the writ, and the burden is on the appellant to show such an abuse. 55 C.J.S. Mandamus § 373 e, p. 648.

Before the district court could issue a writ of mandamus requiring the probate judge to vacate the order he had entered, it must appear that the order of the probate judge was void as being an abuse of his discretion. Neville v. Brewster, 163 Tex. 155, 352 S.W.2d 449, p. 451. The order of the probate judge is valid on its face. Appellants contend that the failure of the probate judge to examine the documents and papers sought in order to determine the merits of the Bank’s motion for protective orders was a clear abuse of discretion, rendering the order void, citing Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434. The record is entirely silent as to whether or not the documents etc. were produced before the probate court and examined by him. There was no evidence introduced during the trial in the district court as to what proceedings occurred in the probate court, except that the motion was filed and overruled. It does appear that at all times, these papers and documents etc. were in the possession of appellant Bank, and only the Bank and its officials or representatives could have produced them to the probate judge for his examination of them. If they did not do so, appellants are in no position to complain now, since the burden was on the Bank in the probate court as it was in the district court to establish its rights to the relief sought. 37 Tex.Jur.2d Mandamus, § 108, p. 765 et seq. In the absence of proof to the contrary, all presumptions favor the validity of a court decree, providing it is not void on its face. We find no evidence in the record establishing that the order of the probate judge is void.

The district court was not asked by appellants to order the probate court to examine the documents etc. and separate the relevant non-privileged ones from those not relevant or privileged. The relief requested was specific, that the order be vacated, and the probate judge be required to enter an order relieving the witness Goldapp from producing the items ^•mentioned in the petition, and directing that the witness be not questioned with reference to such items and certain other matters specified in the petition. If the district court had granted the relief prayed for, in our opinion it would have been guilty of an abuse of discretion, for it would have been supervising the exercise of discretion by the probate judge in his rulings on the relevancy and materiality of information contained in the documents, writings, etc., in question. Maresca v. Marks, Tex.Sup.Ct., 362 S.W.2d 299, p. 301.

We feel that the district judge had the authority to examine the papers, documents, etc., had they been produced and properly identified before him in open court during the trial without the instruments being disclosed to counsel for ap-pellee. If he concluded that some of the documents were probably subject to appellants’ objections of irrelevancy, privilege, etc., and others were probably not, he could have given extraordinary relief by returning the instruments to the probate court, with directions to examine them and exercise his judicial discretion in separating the admissible from the inadmissible. Maresca v. Marks, supra; Crane v. Tunks, supra. But this was not the relief asked for by appellants in their petition for mandamus. We feel that the district judge did not abuse his discretion in refusing to grant the mandamus requested by appellants in their pleadings.

In arriving at this conclusion, it has not been necessary for us to determine the matters raised in the briefs as to the relevancy, privilege, etc., of the documents, papers, letters, etc., to which appellants objected. Appellants’ points raising such questions do not reflect reversible error. Neither have we felt it necessary to pass upon appellees’ motion to strike from the record the six sealed, unidentified (in the record) envelopes delivered to our clerk by one of the attorneys for appellants.

We understand that the deposition of Goldapp has not as yet been taken. We note from the subpoena duces tecum that a notary public, the proper official under ordinary circumstances, was to preside at the taking of the deposition. We feel that the present instance is extraordinary, and calls for extraordinary measures, and that all parties are entitled to have the deposition taken before the probate judge at some place designated by him, so that when questions arise as to whether or not certain instruments are privileged, or relevant to the subject matter involved in the pending action (Rule 186a, T.R.C.P.) or should be included within the depositions, or whether a certain line of questioning is proper, rulings on such matters might be secured at that time from him, in the manner provided by Crane v. Tunks, supra, and Maresca v. Marks, supra. Rules 186b, and 215a, T.R.C.P. Under the provisions of such rules, and of Crane v. Tunks, and Maresca v. Marks, we feel that we are authorized to direct that the deposition if taken, be before the Special Probate Judge, and accordingly, we do make such order. Southern Bag & Burlap Co. v. Boyd, 120 Tex. 418, 38 S.W.2d 565, p. 570, (d).

In connection with the matter of relevancy, we call attention to the recent case of Bell v. Still, Tex.Sup., 403 S-.W.2d 353, affirming and adopting the opinion of the Court of Civil Appeals, 389 S.W.2d 605, and decided while the present case was on appeal. It was there held that the Probate Code did not change the rule previously existing that the probate judge does not have the power to remove an independent executor for gross mismanagement of an estate unless the independent executor, properly appointed and qualified, was required to post bond and could not or would not do so.

Judgment Reformed and Affirmed.

      . 2. All minutes of meetings of the Executors of the Estate of Sarita K. East, deceased.
      8. All written, typed, and printed communications, checks, vouchers, invoices, letters, writings, documents, instruments, and memoranda belonging to the Estate of Sarita K. East at the time of her death insofar as the same purport to be from or prepared, in whole or in part, and/or signed, by Jacob S. Floyd, or under his direction or by his authority, together with the envelopes, if any, in which the same were found, and if the originals thereof be not in the possession of said witness or subject to his direction or control then copies of those of which he cannot produce the originals.
      11. The original, or if the original be not in the possession, custody, or control of the witness, then a copy, of any instrument in writing by virtue of which the Executors of the Estate of Sarita K. East, Deceased, or any of them, authorized, or purported to authorize, Mrs. Elena Kenedy, Mrs. Stella Turcotte Lyt-ton, Lee Lytton, Jr., or any of them, or any other person, to inspect, or examine, or go through, or inventory, or dispose of, any of the personal effects or other properties of Sarita K. East after her death.
      17.Copies of all written instruments and documents, the originals of which were executed by the Executors of the Estate of Sarita K. East, or by any of them, and by virtue of which said Executors, or any of them, purported to assign, transfer, or convey to any person, firm, or corporation, any interest owned by Sarita K. East at the time of her death in any real property or land.
      18. All checks heretofore given by the Executors of the Estate of Sarita K. East, Deceased, or any of them, in payment of any attorneys fees, legal costs, charges, and expenses, together with all invoices, bills, and statements for which such checks were given in payment or partial payment; and if the originals thereof be not in the possession of said witness or subject to his direction or control, then copies of those instruments of which he cannot produce the originals.
      19. All financial statements and reports prepared by or for the Executors, or any of them, of the Estate of Sarita K. East, Deceased, which purport to show the financial condition of said estate or the income received or disbursements made, and if the originals of such statements and reports be not in the possession of said witness or subject to his direction or control, then copies of those of which he cannot produce the originals.


author: WALTER, Justice.

text:
    FORD MOTOR COMPANY, Appellant, v. Dale E. GRIMES, Appellee.
    No. 4103.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 21, 1966.
    Rehearing Denied Nov. 18, 1966.
    Crenshaw, Dupree & Milam, Lubbock, for appellant.

      Jones, Fillmore, Robinson & Lambert, Wichita Falls, for appellee.
   WALTER, Justice.

This is a venue case. Dale E. Grimes filed suit in Knox County against Ford Motor Company and Lankford Motor Company for damages to his Ford automobile caused by fire. The car was manufactured by Ford and sold to Grimes by Lankford. Plaintiff alleged specific acts of negligence, breach of express and implied warranty and res ipsa loquitur. Ford’s plea of privilege was overruled and it has appealed.

In Grimes’ controverting affidavit he .alleged that subdivisions 4, 23, 27 and 9a of Article 1995 applied.

Ford contends the court erred in overruling its plea of privilege because Grimes failed to sustain its burden of proof that such subdivisions were applicable. Appel-lee has abandoned his allegations under 9a, but contends the judgment is correct under the other subdivisions.

The appellee Grimes testified substantially as follows: I purchased a new Ford from Lankford in Knox County on February 11, 1964. I then left Knox City and drove to Benjamin, which is a distance of about ten miles. I then drove to the Todd ranch which is about 14 miles north of Benjamin. When I left Knox City I noticed an odor in the car which I considered as a new car smell. I never drove over 45 miles per hour. The car was represented to me as being a new car. While driving from Benjamin to the Todd ranch I noticed that the odor became stronger. I noticed that the odor seemed to be coming from the motor and smelled as though the insulation on wires was burning. We left the Todd ranch about 10:30 that night and drove to Mr. Carter’s home. The same odor persisted and seemed to be getting stronger. After I had traveled about five miles, I noticed that my right leg was getting pretty warm. I felt under the dash on the right hand side and found that it was very hot. I burned my hand under the dash. The heat became more intense and I thought that I could see a flame and I crammed my jacket up under it and when I did I ran into the bar-ditch. I then saw a flame under the hood on the right hand side of the motor. From what I could see it appeared to be the battery and the wiring on the right hand side. I trotted and walked home, got a fire extinguisher and returned in my truck. By that time I couldn’t get close enough to the car to use the fire extinguisher because of the heat. I returned home and called Lank-ford and told him what happened, and he sent a wrecker out the next morning. I have owned and operated automobiles for about 32 years. The car was burned beyond repair.

Charles Lankford testified substantially as follows: My partner and I own and operate the Lankford Motor Company in Knox City. I purchased the Ford that I sold to Mr. Grimes from Ford Motor Company. It was a new XL Ford 500. The car was built on the 30th of January in Dallas and we get them one or two days after they are built, by auto convoy. I saw the car after it was burned and I would estimate its cash market value at about six hundred dollars. The reasonable cash market value of the car before the fire was around $3,250.00. We have a franchise with Ford and operate as a dealer in Knox City. When asked, “Just briefly, Mr. Lankford. If this car overheated and flamed up under the hood and under the dash as you heard Mr. Grimes here so testify, as a dealer in these cars, an experienced man in handling them and supervising the inspection, would you say there was something wrong with the car?”, he answered “Well, I would say something caused the fire, yes sir.”

The following questions were asked Ford Motor Company and it gave the following answers under Rule 168 of Texas Rules of Civil Procedure.

“Q. Does Ford Motor Company advertise through public media such as television, radio, magazines, newspapers, bulletins, circulars, exhibits that Ford automobiles are safe from the standpoint of manufacture and/or assembly and/or testing and/or inspection for use by the general public ?”
“A. No, in the sense of advertisements directed exclusively to the question of ‘safety’. All improvements in the performance of the product and all engineering advancement, in a sense, have to do with safety, and in the Ford Motor Company advertising, some of the outstanding safety features of the automobile are listed frequently. No advertisements directed simply to the feature of ‘safety’ are made.”

Grimes pleaded that Ford impliedly warranted that the automobile was properly manufactured, assembled, tested and inspected and was fit for the purposes for which it was sold; that such implied warranty continues with the car into the hands of the initial retail purchaser, and that Ford had breached the warranty.

Subdivision 27 of Article 1995 provides that foreign corporations may be sued in any county where the cause of action or a part thereof accrued. We hold that Grimes discharged his burden of proving by a preponderance of the evidence the venue facts under subdivision 27 and affirm the judgment.

In Putnam v. Erie City Manufacturing Company, 5 Cir., 338 F.2d 911, the court said:

“Jacob E. Decker & Sons, Inc. v. Capps, 1942, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479, a case of national importance, firmly settled the law of Texas that in a food case privity of contract is not a prerequisite to recovery for breach of a manufacturer’s warranty of fitness for human consumption; the warranty is implied by law as a matter of public policy. But the Supreme Court of Texas had not committed itself to a position on the necessity for privity as a prerequisite to recovery in non-food cases. In the case before the court the defective product is a wheel chair. Making an Erie [Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188] educated guess, we hold: Today, the Supreme Court of Texas would follow Decker to its logical conclusion and rule that a manufacturer or assembler of a defective product unreasonably dangerous to the user, is subject to strict liability to the user for an injury caused by the defect, even though the product is not a food for human consumption, there is no proof of negligence, and there is no privity between the user and the manufacturer or assembler.”

We think that justice requires that the manufacturer be charged with an implied warranty in favor of the initial retail purchaser that the automobile was suitable for the purposes for which it was sold. The evidence discloses more than an unexplained fire. Soon after Grimes purchased this new car, he began to smell smoke from burning insulation. Within approximately six or eight hours and fifty miles after the new car was delivered to him it was destroyed by fire. The fire was in the front and, “it appeared to be the battery and the wiring on the right hand side.” Lankford testified, in effect, that there was something wrong with the car.

We hold that the court was also warranted in overruling the plea of privilege under subdivisions 4 and 23.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    WATER WONDERLAND, INC., Appellant, v. G. A. WORMAN et al., Appellees.
    No. 4548.
    Court of Civil Appeals of Texas. Waco.
    Oct. 27, 1966.
    Rehearing Denied Nov. 17, 1977.
    Donn C. Fullenweider, Houston, for appellant.
    Spiner, Pritchard & Thompson, Houston, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant from a judgment for plaintiffs for a real estate commission and for attorneys’ fees.

Plaintiffs Worman and Pearson sued defendant Water Wonderland, Inc., alleging that defendant owed plaintiffs a real estate commission for selling lots 9 through 24 of an addition owned by defendant. Defendant answered, admitting that the lots had been sold for it by plaintiffs and that the commission was owed, but alleged that it had been necessary for the seller to agree to indemnify a title company on title policies it issued on the lots; and that defendant had in turn made an oral agreement with plaintiffs whereby one-half of the commission for selling such lots would be withheld until defendant was no longer liable on its indemnity agreement with the title company.

Trial was before the Court without a jury which, after hearing, rendered judgment for plaintiffs for the amount of the commission and for attorneys’ fees.

Defendant appeals, contending the trial court erred in rendering judgment for a broker’s commission without evidence of a sufficient written contract under provisions of Article 6573a, Section 28, Vernon’s Ann. Tex.Civ.St.

Defendant admitted execution of the contract in its answer, (which contract was attached to plaintiffs’ petition), and on the trial defendant’s President admitted owing the commission sued for, but contended that it was not due. Plaintiffs testified there was no agreement to withhold any part of the commission. The trial court believed the plaintiffs, and the evidence is ample to support the judgment. Defendant’s point and contentions are overruled.

Affirmed.


author: DIXON, Chief Justice.

text:
    Peter ABINGTON et al., Appellants, v. E. V. GOSS, Appellee.
    No. 16853.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 7, 1966.
    Rehearing Denied Nov. 4, 1966.
    Pat S. Russell and Allen Melton, Dallas, for appellants.
    June R. Welch and D. B. Mason, Dallas, for appellee.
   DIXON, Chief Justice.

Appellee Emanuel V. Goss has filed a motion to dismiss this appeal, on the ground that appellants have not filed an appeal bond. We have concluded that the motion must be sustained.

Appellants are attempting to appeal from an adverse judgment of the District Court, which judgment was to the effect that appellants, contestants in a will case, take nothing by their suit.

Part III, Section 1, of Vernon’s Texas Rules of Civil Procedure, Rules 352 to 369-a, inclusive, prescribe procedures necessary to perfect an appeal to the Court of Civil Appeals. Rule 354 provides for the filing of a cost bond to be approved by the clerk; or in lieu of a cost bond, a cash deposit with the clerk equal to the estimated costs in the trial court and the cost of the statement of facts and the transcript, less such sums as may have been paid by appellant. If a cash deposit is made the clerk must file his certificate showing the deposit has been made and copy the certificate in the transcript. Since this is an appeal from a district court the approval of the bond or the certificate of the cash deposit would necessarily be made by the District Clerk.

Rule 355, T.R.C.P. stipulates that a party who is unable to pay the costs or give security therefor may prosecute his appeal by filing an affidavit of inability to pay costs or give security.

Rule 356, T.R.C.P. provides that the cost bond or the cash deposit shall be filed with the clerk within thirty days after rendition of judgment or the overruling of a motion for new trial. The affidavit in lieu of costs shall be filed in not more than twenty days of the rendition of such judgment or order.

The above rules are mandatory and jurisdictional. Compliance cannot be waived. The time for filing the bond, cash deposit, or affidavit cannot be enlarged. Failure to comply requires a dismissal of the appeal. The Glidden Co. v. Aetna Casualty & Surety Co., 155 Tex. 591, 291 S.W.2d 315, 318 (Tex.S.Ct.); Aaronson v. Silver, Tex.Civ.App., 304 S.W.2d 218 (ref. n. r. e.) ; Pridgen et al. v. Damon, Tex. Civ.App., 298 S.W.2d 278 (writ ref.).

In this case appellants did not file an appeal bond, or make a cash deposit with the District Clerk; or file an affidavit of inability to pay costs or give security therefor. There is no estimate of costs and no certificate by the District Clerk.

In their answer to appellee’s motion to dismiss appellants point out that when they took their appeal to the District Court from an adverse judgment in the Probate Court the Judge of the Probate Court fixed the amount of a cash deposit for costs at $250. This was in compliance with Rule 333, T.R. C.P., which rule appears in Vernon’s Annotated Rules under the heading “Review By District Courts Of County Court Rulings.” No one questions that the compliance with Rule 333 enabled appellants to perfect their appeal from the Probate Court to the District Court.

But the cash deposit with the County Clerk for the appeal from the Probate Court to the District Court is not a cash deposit for an appeal from the District Court to the Court of Civil Appeals. It was not so intended in this case, as is plainly shown by the order of the Probate Judge. The Probate Court’s judgment admitting the will to probate concludes with these words: “ * * * to aU of which contestants gave notice of appeal to the District Court of Dallas County and bond for such appeal is set at $250.00.” (Emphasis ours.)

The transcript in the appeal before this court contains an order signed by a District Judge which order undertakes to find that the $250 deposited by appellants with the County Clerk of Dallas County for the appeal from the Probate Court to the District Court is adequate to cover the costs in the trial courts, the Court of Civil Appeals and the Supreme Court without making any further deposits or filing an appeal bond.

We know of no statute, rule or judicial decision which authorizes a District Judge to make the above findings or to decree that a deposit with the County Clerk for an appeal from the Probate Court to the District Court is an adequate deposit for appeal from the District Court to the Court of Civil Appeals, thereby dispensing with the filing of an appeal bond for the latter appeal. It is the Clerk, not the Judge, who must approve the bond. Hill v. Halliburton, 32 Tex.Civ.App. 21, 73 S.W. 21.

It has been held that in the absence of a showing that the Clerk has estimated the costs of appeal and approved the appeal bond the appeal must be dismissed. Horton v. Stone, Tex.Civ.App., 268 S.W.2d 247. We think the holding is equally applicable in regard to a cash deposit for costs.

The appeal is dismissed.

       This order was not signed by the Hon. Clarence A. Guittard, Judge of the 14th District Court, who tried the case and rendered the judgment from which appellants have attempted to appeal. The order was presented to and signed by another Judge who was sitting for the Judge of the 14th District Court.