author: CADENA, Justice.

text:
    H. Gillis GRAHAM, d/b/a Graham Construction Company et al., Appellants, v. SAN ANTONIO MACHINE AND SUPPLY CORPORATION, Appellee.
    No. 14539.
    Court of Civil Appeals of Texas. San Antonio.
    May 31, 1967.
    Rehearing Denied Sept. 13, 1967.

      Wiley & Thornton, Dayton G. Wiley, Lewin Plunkett, San Antonio, Charles C. Smith, Cameron, for appellants.
    Lloyd, Lloyd, Dean & Ellzey, Alice, Mc-Gown, McClanahan & Hamner, San Antonio, for appellee.
   CADENA, Justice.

This is an appeal from a judgment in favor of a subcontractor and the subcontractor’s materialman against a prime contractor on a public construction project and his surety on a payment bond executed in conformity with the provisions of the Mc-Gregor Act, Article 5160, Vernon’s Ann. Civ.St. (1962).

Appellant, H. Gillis Graham, d/b/a Graham Construction Company, herein called “Graham,” was the prime contractor under a contract with the Alice Water Authority for the construction of a water supply system and treatment plant in the City of Alice, Jim Wells County. Appellant National Surety Corporation, herein called “National,” was the surety on the payment bond furnished by Graham. Appellee, San Antonio Machine and Supply Corporation, herein referred to as “SAMSCO,” as subcontractor, contracted with Graham to fabricate and erect, in connection with the Alice water project, a storage tank and a wash tank for the sum of $64,000.00. In addition, SAMSCO furnished Graham, on what is referred to in the record as an open account, materials and supplies used by Graham in the performance of his contract with the Alice Water Authority. Eureka Machine Tools, Inc., herein called “Eureka,” furnished materials to SAMSCO which were used in the construction of the Alice water project.

On November 9, 1964, Graham filed this action, in the form of a bill of interpleader, in the District Court of Jim Wells County, alleging that SAMSCO had substantially performed the work called for in its contract with Graham, as a result of which Graham was indebted to SAMSCO in the sum of $55,010.63. The pleading then recited that rival and conflicting claims, including a claim by Eureka in the amount of $9,203.43, had been made upon Graham for moneys due SAMSCO. The other rival claimants named by Graham have filed disclaimers and are no longer parties to this litigation.

Meanwhile, on a date not revealed by the record in this case, SAMSCO had been adjudged bankrupt, and on November 18, 1964, the bankrupt court, being the United States District Court for the Western District of Texas, San Antonio Division, issued its order enjoining all parties to the interpleader suit from continuing the litigation. National, which at this stage of the proceedings had not been made a party to this suit, was not named in such stay order.

Thereafter, on February 1, 1965, Eureka filed in this case what it designated an “intervention,” alleging that SAMSCO was indebted to it from materials furnished SAMSCO and used in construction of the Alice water project, in the sum of $9,203.43, and that to this extent its claim to the funds held by Graham was superior to that of all other claimants. In addition, Eureka alleged that National had executed, as surety for Graham, the payment bond described above, and prayed for recovery from Graham and National. Eureka also sought recovery of attorney’s fees.

On April 5, 1965, National having filed no answer to Eureka’s claim, the trial court entered an interlocutory default judgment in favor of Eureka against National in the sum of $9,203.43, plus $500.00 for attorney’s fees.

On August 2, 1965, the stay order entered by the United States District Court in the SAMSCO bankruptcy proceedings was terminated. On, August 3, 1965, SAMSCO filed its answer in Eureka’s suit, including a cross-action against Graham and National, alleging that Graham was indebted to SAMSCO in the sum of $62,081.67 for labor and materials furnished Graham by SAMSCO in connection with the Alice project.

On August 26, 1965, National filed its answer to SAMSCO’s cross-action, and on November 5, 1965, National filed its motion to set aside the default judgment rendered against it and in favor of Eureka on April 5, 1965. This motion to set aside the default judgment was denied by the trial court on December 20, 1965.

On March 2, 1966, Graham and National filed their amended answer to SAMSCO’s cross-action, including a cross-action against SAMSCO for damages allegedly resulting from SAMSCO’s delay in fabricating and installing the water tanks. On March 16, 1966, after a trial without a jury, the trial court entered judgment as follows:

1. The default judgment in favor of Eureka against National was made final.

2. Eureka was granted recovery against SAMSCO in the sum of $9,203.43, plus $1,000.00 as attorney’s fees. SAMSCO does not complain of this portion of the judgment.

3. SAMSCO was granted recovery of $62,081.67 on its cross-action against Graham and National, but National was allowed a credit in the amount of $4,650.00, representing the extent of the claim perfected by Eureka against National under the provisions of Article 5160. SAMSCO was granted a further recovery of $12,000.00 against Graham for attorney’s fees.

Some of appellants’ points of error assail the rendition of the default judgment in favor of Eureka, with the remainder being directed to the rendition of the judgment in favor of SAMSCO. We shall discuss the Eureka and SAMSCO claims separately.

1. THE JUDGMENT IN FAVOR OF EUREKA

National contends that the trial court erred in rendering default judgment in favor of Eureka because Eureka’s pleadings did not state a cause of action against National; that the trial court erred in refusing to set aside the interlocutory default judgment; and that, in any event, Eureka was not entitled to recover, as against National, attorney’s fees.

a. The Entry of the Default Judgment

Eureka alleged, in substance, that it had furnished materials to SAMSCO which were used in connection with the Alice water project described in Graham’s petition, and that, therefore, Graham and SAMSCO were indebted to it in the sum of $9,203.43. Eureka further alleged that National had issued a payment bond in connection with such project; that National was obligated to pay Eureka for the materials furnished; and that Eureka had complied with the legal requirements for judgment against National.

Eureka’s pleadings, by reference to Graham’s petition in interpleader, show that the project in question was a public construction project in which Graham was the “prime contractor,” and that such project was subject to the provisions of Article 5160, which require that the prime contractor furnish a payment bond. This sufficiently identified Graham as the principal on the payment bond issued by National. In determining whether pleadings are sufficient to support a default judgment, the claimant’s pleading will be tested by the rules which would have been applied under the old general demurrer practice. Odom v. Pinkston, 193 S.W.2d 888 (Tex.Civ.App., 1946, writ ref’d n. r. e.). That is, the default judgment will stand if the pleadings give fair notice to the adversary of the nature of the claim against him, even though the pleadings would be vulnerable to attack by special exception. 4 McDonald, Texas Civil Procedure, p. 1372 (1950). Tested by these rules, Eureka’s pleadings, although cast in general terms which, perhaps, would not have withstood challenge by special exception, were sufficient, except the portion seeking recovery of attorney’s fees, to state a cause of action against National.

b. Refusal to Set Aside Default Judgment

National contends that the failure of its attorney, Charles C. Smith, Jr., Esq., to file an answer to Eureka’s claim was due to a good faith belief that the filing of an answer would constitute a violation of the stay order issued by the United States District Court in connection with the SAMSCO bankruptcy proceedings.

Even if it be assumed that National’s fear of violating the stay order would excuse its failure to answer Eureka’s claim while the stay order remained in effect, we do not believe that the trial court erred in refusing to set aside the default judgment rendered in favor of Eureka. As already pointed out, the stay order was dissolved on August 2, 1965. National did nothing with respect to the Eureka claim until November 5, 1965, some 95 days after the stay order was terminated, when it filed its motion to set aside the default judgment. .There is nothing in the record to justify this lengthy period of inaction on the part of National. The burden was on National to show that, after it acquired notice of the entry of the default judgment, it acted promptly to protect its interests. Since there is nothing in the record to indicate when National became aware of the entry of the judgment, it failed to sustain its burden of showing that it acted with due dilience in protecting its rights, and that its delay until November 5, 1965, was not due to its own negligence. Under these circumstances, it cannot be said that the trial court abused its discretion in refusing to set aside the default judgment. Cf. Simpson v. Glenn, 103 S.W.2d 433 (Tex.Civ.App., 1937, no writ); Griffin v. Duty, 286 S.W.2d 229 (Tex.Civ.App., 1956, no writ).

c. Liability of National for Attorney’s Fees

Despite some uncertainty in the decisions by our intermediate appellate courts, it is now settled that a surety on an Article 5160 payment bond is not liable for attorney’s fees. New Amsterdam Casualty Co. v. Texas Industries, Inc., Tex., 414 S.W.2d 914 (April 29, 1967). Eureka’s petition, then, failed to state a cause of action against National for attorney’s fees, and it was error to allow recovery therefor.

2. THE SAMSCO CLAIM

Appellants’ assault on the judgment in favor of SAMSCO is based on the following contentions: (a) The notice of claim given by SAMSCO on October 27, 1964, was not sufficient to perfect a claim under Article 5160 because, at the time such notice was given, SAMSCO had assigned its claim against Graham and, in any event, under the provisions of the statute, such notice could not operate to perfect a claim based on materials furnished or labor performed prior to July 1, 1964. (b) The trial court erred in failing to apply payments made by Graham ..to SAMSCO to that portion of SAMSCO’s claim based on materials furnished and labor done after July 1, 1964. (c) The trial court erred in rendering judgment in favor of SAMSCO on that portion of the claim based on an open account, since there was insufficient evidence of the market value of the materials furnished. (d) The trial court erred in not permitting National to set off, as against SAMSCO’s claim, the full amount of the jugment recovered by Eureka against National, and in not allowing Graham to set off, as against SAMSCO, the sum of $9,-203.43, the amount of the judgment rendered in favor of Eureka against National, the surety, (e) The trial court erred in finding that SAMSCO did not materially delay the completion of the contract between Graham and the Alice Water Authority.

a. Notice

The written notice of SAMSCO’s claim was received by Graham and National on October 27, 1964. It is undisputed that, prior to that date, SAMSCO had assigned all of its accounts receivable, including its claim against Graham, to Mill Factors Corporation as security for money advanced by Mill to SAMSCO. In this connection, appellants also complain of the failure of the trial court to grant their request, timely made, to make an additional finding of fact to the effect that, at the time SAMSCO gave notice of its claim against Graham, SAMSCO was not the owner of the claim.

The instrument by which SAMSCO’s accounts receivable were assigned to Mill was not offered in evidence. The undisputed evidence shows that the assignment was only for the purpose of collateral security, with SAMSCO retaining the right to manage and control the accounts, and to attempt collection thereof, until some time in December, 1964, or January, 1965, at which time Mill exercised its option to assume control of the accounts. In March, 1965, SAMSCO and Mill entered into a written agreement to act jointly in the collection of the accounts, and, subsequently, in consideration of payment by SAMSCO of Mill’s claim, Mill reassigned the accounts receivable to SAMSCO.

In the absence of the instrument of assignment, and in view of the testimony concerning the nature of such assignment and the rights of the parties thereunder, the trial court did not err in refusing to find that SAMSCO was not entitled, on October 27, 1964, the date of the notice, to take all steps necessary for the collection of the debt owed by Graham. In any event, the rule seems to be that notice given by an assignor, after assignment, is sufficient compliance with the requirement of notice involving bonds of contractors. 10 Apple-man, Insurance Law and Practice, § 6260 (1943). This rule would appear to be peculiarly applicable where, as here, the assignment was for the purpose of collateral security only, and the notice was given by the assignor at a time when he retained the right to control the accounts and to attempt the collection thereof. We conclude that the record before this Court affirmatively shows that the refusal of the trial court to make the requested supplemental findings resulted in no injury to appellants. 4 McDonald, Texas Civil Practice, § 16.08, p. 1298 (1950).

Next, it is insisted that, in any event under the provisions of Article 5160, the notice given by SAMSCO on October 27, 1964, could be effective to perfect a claim only for materials delivered and labor. done after June 30, 1964. The judgment below allows SAMSCO recovery for all materials delivered and labor done by SAMSCO during the period beginning on or about April 25, 1964, and ending October 26, 1964. Of SAMSCO’s total claim of $62,081.67, only $36,328.02 represents materials delivered or labor performed after June 30, 1964.

The written notice shows on its face that SAMSCO was demanding payment for all materials furnished and labor performed by it during the entire six-month period beginning April 25, 1964, and that its claim was not limited to transactions occurring after June 30, 1964. Therefore, when the notice was received by National, it was clear that, under the provisions of Article 5160, National had a defense to that portion of the claim based on transactions which took place prior to July 1, 1964. The evidence shows that, upon receipt of the notice, Mr. Carruth, National’s attorney assured SAMSCO that National had “a solvent in-demnitor,” that SAMSCO’s claim “would be taken care of,” that there was no need to worry, and that National would “look into it.” When, on November 9, 1964, Graham filed his interpleader action, SAMSCO’s attorney telephoned the attorney for National to ascertain what was “going on.” The attorney for National replied that he did not know.

Conversations and discussions between the two attorneys continued, and by July 1, 1965, they had agreed on a settlement in the neighborhood of $55,000.00-$57,000.00, subject to the approval of Graham’s attorney. Later in that month, SAMSCO received a copy of a letter written to National by Graham’s attorney protesting any settlement between National and SAMSCO. No question concerning the timeliness of the notice to perfect a claim based on the transactions occurring before July 1, 1964, was raised by National during all of this time. It was not until National filed its answer in this suit on August 26, 1965, almost ten months after receipt of the notice, that National raised the question of timeliness of the notice.

On the basis of the evidence outlined above, the trial court found that National had waived its right to insist that the notice given on October 27, 1964, was insufficient to perfect a claim based on transactions occurring prior to July 1, 1964.

Our Courts have held that compliance with the notice provisions of Article 5160 may be waived. General Ins. Co. of America v. Smith & Wardroup, Inc., 388 S.W.2d 262 (Tex.Civ.App., 1965, writ ref'd n. r. e.). However, National insists that there can be no finding of waiver of the notice requirement in this case because all of the conduct relied on by SAMSCO as establishing a waiver took place after the time had expired for the giving of notice relating to the transactions prior to July 1, 1964. An examination of the doctrine of waiver, as distinguished from the doctrine of estoppel, reveals that this contention is without- merit.

Where an obligor “waives” performance of a condition precedent to his duty to perform, the waiver is the result of his own voluntary conduct and is legally effective even though the obligee, or the person to whom performance is due, has given no consideration for it and has not changed his position in reliance on the obligor’s course of conduct. Equitable Life Assur. Soc. v. Ellis, 105 Tex. 526, 147 S.W. 1152, 1157, 152 S.W. 625 (1913). Where the conduct of the obligor which eliminates the condition precedent causes the other party to change his position materially in reliance on such conduct, the obligor is said to be “estopped” to assert as a defense the nonoccurrence of the event or condition on which his duty to perform was dependent. But, even in such cases, the obligor’s conduct can still be described as a waiver, while the resulting action of the other party justifies the added description of estoppel. That is, waiver depends solely on what the obligor does; estoppel depends on what he has caused his adversary to do.

If, while performance of the condition it still possible, the obligor signifies his intention not to insist on the performance of such condition, there would normally exist all of the elements of an estoppel, since in almost every such case the obligee, if he failed to perform the condition, could show that his failure was the result of reliance on the obligor’s conduct. On the other hand, if the conduct of the obligor which results in the elimination of the condition takes place after performance of such condition has become impossible, then, in the usual case, there can be no estoppel, since the obligee cannot show that his failure to perform resulted from reliance on the conduct of the obligor. In such cases, the elimination of the requirement of the existence or occurrence of the condition must rest solely on the doctrine of waiver, rather than on any theory of estoppel.

It is apparent, then, that a rule limiting the application of the doctrine of waiver to situations where the asserted waiver takes place before expiration of the time for performance of the condition would substantially destroy the distinction between waiver and estoppel since, as pointed out above, in almost all such situations all elements of estoppel are present.

There is ample authority to support the rule that a waiver may be effective after expiration of the time for performance of a condition has expired, if the condition which is asserted to have been waived is not a material part of the agreed equivalent of the obligor’s promise and its nonperformance does not materially affect the value received by the obligor. Restatement, Contracts, §§ 88(1), 297 (1932) ; 3A Corbin, Contracts, § 759 (1960); 14 Couch, Insurance § 49.784 (2d ed., 1965). Our Supreme Court has recognized that waiver of a condition precedent to liability may be established by conduct occurring after the time for performance or occurrence of the condition has expired. Equitable Life Assur. Soc. v. Ellis, supra.

The rule that the requirement of timely notice may be waived after expiration of the time during which such notice may be given finds support in cases involving the liability of an endorser of a negotiable instrument. In this connection, it should be noted that the position of an endorser of a note is closely analogous to that of a surety on a contractor’s bond. Cushman, Surety Bonds on Public and Private Construction Contracts, 46 A.B.A.J. 649, 652 (1960). Even before the adoption of the Negotiable Instruments Act in Texas, our Courts had held, with reference to the rule requiring notice of dishonor to an endorser, that the endorser could waive the requirement of such notice and thereby become bound on the instrument, even though the time for giving such notice had expired and, therefore, the endorser had been discharged of liability. Stone v. Smith, 30 Tex. 138, 139 (1867); First Nat. Bank v. Bonner, 27 S.W. 698 (Tex.Civ.App., 1894, writ dism’d).

Appellants next assert that there is no competent evidence to support the finding of a waiver in this case, because all of the evidence on which a waiver might be based consists of settlement negotiations between SAMSCO and National, and such evidence should have been excluded when objected to by National. It is true that evidence of offers to settle or compromise is excluded as irrelevant to the issue of the validity of the claim with reference to which such offers are made, but it is well settled that evidence of extensive negotiations entered into by the obligor looking toward settlement of a claim is admissible and can support a finding of waiver of the right to object to a failure to give notice of claim within the time required. Alamo Casualty Co. v. Trafton, 231 S.W.2d 474 (Tex.Civ.App., 1950, writ dism’d); Service Mut. Ins. Co. of Texas v. Territo, 147 S.W.2d 846 (Tex.Civ.App., 1941, no writ); Commercial Union Assur. Co. v. Meyer, 9 Tex.Civ.App. 7, 29 S.W. 93 (1894, no writ); Concordia Ins. Co. of Milwaukee v. School Dist., 40 F.2d 379 (10th Cir., 1930, aff’d, 282 U.S. 545, 51 S.Ct. 275, 75 L.Ed. 528) ; 14 Couch, op. cit, § 49.898. The trial court’s finding of waiver is supported by the evidence.

b. Application of Payments Made by Graham

In addition to materials furnished and labor done by SAMSCO in connection with the $64,000.00 lump sum contract for installation of the two water tanks, SAMS-CO, from time to time, delivered on open account, materials which were used by Graham in performance of his contract with the Alice Water Authority. National contends that payments made by Graham between July 1, 1964, and October 26, 1964, were improperly applied by SAMSCO to satisfaction of the balance owing on the open account, rather than in payment of the amount owing on the $64,000.00 contract. It is also argued that such payments should have been applied as payments for materials furnished and labor done by SAMSCO during the period after June 30, 1964, thus, discharging that portion of Graham’s indebtedness for which National was liable.

The evidence establishes that all materials furnished by SAMSCO under the open account were used by Graham in the construction of the Alice Water project. Therefore, National, as surety for Graham, was liable for all such materials. In view of our holding that, under the doctrine of waiver, National was liable for all materials delivered and labor done by SAMSCO in connection with the Alice project, the manner in which SAMSCO applied the payments made by Graham becomes immaterial. Irrespective of the items of indebtedness to which such payments were applied, they were applied to reduce the entire debt for which Graham and National were liable.

c. Sufficiency of Evidence of Market Value

Appellants urge that the trial court erred in entering judgment in favor of SAMSCO for the materials sold to Graham on open account because there is insufficient evidence to establish the reasonable market value of such materials. There is in evidence a letter from SAMSCO to Graham, dated November 18, 1963, before any such materials were delivered, outlining the manner in which the open account purchases were to be handled. This letter states that the prices which would be charged for such materials would be in accordance with quotations furnished Graham by SAMSCO on October 26, 1963. At the request of SAMSCO, Graham’s purchasing agent signed this letter as a manifestation of agreement with the plan outlined therein and returned the letter to SAMSCO. It thus appears that the materials furnished were sold and delivered at prices previously agreed upon between the parties. Therefore, evidence of the .reasonable market value of such materials was not required.

Further, the evidence shows that, over a period of several months, invoices describing the materials shipped and the quantity and prices thereof were sent to Graham simultaneously with the shipment covered by such invoices. At no time did Graham object to the prices listed in such invoices. Graham’s failure to object permits the inference of his approval of the prices so as to establish a stated account, eliminating the requirement of evidence of market value. Davis v. Gilmore, 244 S.W. 2d 671 (Tex.Civ.App., 1951, writ ref’d).

d. The Question of Set-Off

The evidence showed that Eureka gave its notice of claim on October 24, 1964. Under the provisions of Article 5160, such notice was operative to perfect Eureka’s claim against the payment bond only for materials furnished by it to SAMSCO after September 1, 1964. The evidence showed that the materials furnished by Eureka after September 1, 1964, had a value of $4,650.00. As already pointed out, the judgment below allowed National credit for this amount.

National contends that since Eureka recovered a default judgment against National in the sum of $9,203.43, being the value of all materials furnished by Eureka to SAMSCO, the trial court should have allowed National a set-off, as against SAMSCO, of $9,203.43. It is also insisted that Graham was entitled to set off, as against SAMSCO, the amount Eureka recovered from National, Graham’s surety.

The arguments urged in support of the right to offset are based on the theory that, as to the amount owed Eureka by SAMSCO, National is in the position of a surety. However, no part of Eureka’s claim has been paid by National. An unconditional judgment cannot be rendered in favor of the surety against the principal at the same time judgment is rendered against the principal and the surety for the sum adjudged against the principal and surety. The surety is entitled to recover of the principal only such sum as he may be compelled to pay on the judgment rendered against them. Labbe v. Corbett, 69 Tex. 503, 6 S.W. 808 (1888); Abney v. Citizens’ Nat. Bank, 152 S.W. 734 (Tex.Civ.App., no writ). The right of the surety to recover from the principal does not arise until the surety has discharged all or a portion of the principal’s obligation.

If, then, until the surety has paid all or part of the principal’s obligation, he is not entitled to judgment over against the principal, it follows that National is not entitled to set off the full amount of the judgment rendered in favor of Eureka against SAMSCO and National. On the other hand, it would be manifestly unjust in this case to allow SAMSCO to recover the full amount of the debt owed by Graham and National without making provision in the judgment for protection of National in the event that it discharges SAMS-CO’s obligation to Eureka. We believe that in this case the judgment of the trial court should be reformed to provide that National and Graham are entitled to set off, as against the judgment rendered against them in favor of SAMSCO, whatever portion of the Eureka claim is discharged by National. Only in this way can we insure that SAMSCO will not be unjustly enriched in the sum of $9,203.43 should National satisfy the judgment rendered in favor of Eureka against SAMSCO and National. At the same time, this will make certain that National and Graham will receive credit only to the extent that National discharges SAMSCO’s obligation to Eureka.

SAMSCO insists that, since the evidence disclosed that National had a defense to all of Eureka’s claim, with the exception of the amount of $4,650.00, the trial court correctly limited the allowable set-off to that amount, since SAMSCO should not be penalized for National’s failure to properly defend Eureka’s suit. However, this argument ignores the fact that, should National discharge SAMSCO’s entire obligation to Eureka, limiting National’s right of offset to $4,650.00 would result in a double recovery by SAMSCO. It also overlooks the rule that a surety, in order to be entitled to reimbursement from his principal, is not compelled to take advantage of every technical objection to the claim of the creditor. The defense which National might have successfully interposed to a portion of Eureka’s claim was the failure of Eureka to give timely notice relating to transactions occurring prior to September 1, 1964. This defense was personal to National and could be waived by it without affecting its right to reimbursement from SAMSCO. 72 C.J.S. Principal and Surety § 309 (4), p. 771.

e. SAMSCO’s Responsibility for Delay in Completion of Project

The trial court found that SAMS-CO did not materially delay the completion by Graham of his contract with the Alice Water Authority. It is undisputed that the project was not completed on schedule by Graham and that, as a result of the delay, Graham was forced to pay the Alice Water Authority more than $20,000.00 as liquidated damages. The evidence concerning the reason for the numerous delays is conflicting and, considering the record as a whole, it cannot be said that the finding of the trial court is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

The judgment of the trial court is reformed by deleting therefrom that portion which allows Eureka Machine Tools, Inc., to recover from National Surety Corporation the sum of $500.00 for attorney’s fees, and by including therein a provision to the effect that appellants, H. Gillis Graham, d/b/a Graham Construction Company, and National Surety Corporation shall be allowed credit, as against the judgment rendered in favor of San Antonio Machine and Supply Corporation against them, for such sums as may be paid by National Surety Corporation in satisfaction of the judgment rendered in favor of Eureka Machine Tools, Inc., against San Antonio Machine and Supply Corporation and National Surety Corporation.

As so reformed, the judgment of the trial court is affirmed.

KLINGEMAN, J., did not participate in the decision of this case.

      . Par. B(a) of Article 6160 requires that a claimant in the position of SAMSCO shall give, within 90 days after the 10th day of the month next following each month in which the labor was done or materials delivered, written notice of the claim by certified or registered mail, addressed to the prime contractor and to the surety.

      . Par. B(b) (2) of Article 5160 requires that a claimant who, like Eureka, had no contractual relationship with the prime contractor, shall give written notice by certified or registered mail to the prime contractor within 36 days after the 10th day of the month next following each month in which the materials were delivered or labor performed.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    C. O. SHURTLEFF PUMP COMPANY, Appellant, v. RADIO CORPORATION OF AMERICA, Appellee.
    No. 4184.
    Court of Civil Appeals of Texas. Eastland.
    July 28, 1967.
    Dell Barber, Colorado City, for appellant.
    Gordon Asbury, Jr., Abilene, for appellee.
   WALTER, Justice.

Radio Corporation of America recovered a default judgment in the County Court of Taylor County against C. 0. . Shurtleff Pump Company for the sum of $819.88. C. O. Shurtleff Pump Company, a partnership composed of C. O. Shurtleff and Grace M. Shurtleff, has filed an application for a writ of error. The certificate of service of Shurtleff’s lawyer set out in its brief states that a copy of the brief was delivered to Radio Corporation of America’s attorney. However, we have not been favored with a brief from him.

In Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (1935), the court said:

“A judgment by default without proper service of citation is void. State Mortgage Corp. v. Traylor, 120 Tex. 148, 36 S.W.(2d) 440; Levy v. Roper, 113 Tex. 356, 256 S.W. 251. On a direct attack, such as this, the usual presumption of service because of the recital in the judgment, ‘that defendants though duly and legally cited to appear and answer, came not but wholly made default,’ does not obtain, and the error resulting from the absence in the record of the necessary showing necessitates a reversal of the judgment.”

The Supreme Court cited Flynt with approval in McKanna v. Edgar (1965), 388 S.W.2d 927, at page 928.

Citation was issued to C. O. Shurtleff Pump Company. The certificate of delivery on the citation as follows:

“I do hereby certify that I delivered to O. C. Shurtleff on the 22 day of July, 1966, at 9:25 o’clock a. m. this copy of this instrument.

Sheriff W. L. Claxton Mitchell County, Texas By: Forrest Smith, Deputy.”

We conclude that service of citation on O. C. Shurtleff is not service on C. O. Shurtleff Pump Company.

The judgment is reversed and the cause is remanded.


author: HUGHES, Justice.

text:
    Robert S. CALVERT, Comptroller of Public Accounts of the State of Texas, et al., Appellants, v. Edward G. KADANE et al., Appellees.
    No. 11522.
    Court of Civil Appeals of Texas. Austin.
    June 28, 1967.
    Rehearing Denied Sept. 13, 1967.
    Crawford C. Martin, Atty. Gen., George Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Executive Staff Asst. Atty. Gen., John R. Grace, Gordon C. Cass, Asst. Attys. Gen., Austin, for appellants.
    Kilgore & Kilgore, Kiel Boone, Eugene R. Lyerly, Dallas, for appellees.
   HUGHES, Justice.

This suit was brought by Edward G. Ka-dane, Jack E. Kadane, and Mike Kadane, doing business as G. E. Kadane and Sons; Kadane-Griffith Oil Company; Edward G. Kadane, Jack E. Kadane, Mike Kadane, and Fred Goodstein, a partnership, doing business as Kadane-Goodstein Oil Company, appellees against Robert S. Calvert, Comptroller of Public Accounts, Jesse James, Treasurer and Crawford C. Martin, Attorney General, in their respective official capacities of the State of Texas, to recover taxes paid, under protest, as Gas Production taxes imposed by Chapter 3, Title 122A, Taxation General, and being Arts. 3.01-3.10, Vol. 20A, V.A.T.C.S.

Trial was to the court without a jury. Judgment was rendered for appellees for the amounts sued for except $100.00 thereof which was adjudged to the State of Texas, and as to which sum no issue is presented.

The basic facts were stipulated. However, some testimony was heard.

The Statute to be construed in connection with the facts presented is Art. 3.01, which we quote in full:

“Art. 3.01 Calculation of Tax
(1) There is hereby levied an occupation tax on the business or occupation of producing gas within this State, computed as follows:
A tax shall be paid by each producer on the amount of gas produced and saved within this State equivalent to seven per cent (7%) of the market value thereof as and when produced.
Provided, however, that the amount of the tax on sweet and sour gas shall never be less than 12¾soo of one cent (l<ji) per one thousand (1,000) cubic feet.
(2) In calculating the tax herein levied, there shall be excluded: (a) gas injected into the earth in this State, unless sold for such purpose; (b) gas produced from oil wells with oil and lawfully vented or flared; and (c) gas used for lifting oil, unless sold for such purposes. Acts 1959, 56th Leg. 3rd C.S. p. 187, ch. 1.”

The question to be decided here is whether gas, the production of which has been taxed was “gas used for lifting oil.”

The facts are:

Appellees are the owners and operators of certain oil and gas leaseholds in Texas, and in the operation of such leases they use casinghead gas as a source of power to operate equipment which lifts oil from beneath the surface of the land. All of the casinghead gas for the production of which taxes are sought on this appeal has been used on appellees’ leases in operating equipment to lift. oil either hydraulically (Kobe Method) or mechanically. None of such gas was used for any other purpose, and none of it was sold.

We are of the opinion that this gas is exempt from taxation under the provisions of Art. 3.01, supra, for the reason that such gas was used “for lifting oil,” and was not sold for such purpose.

In 1941, the 47th Legislature enacted H.B. No. 8, effective May 1, 1941, an omnibus tax bill which included provisions for an occupation tax on the business or occupation of producing gas within the State of Texas. (Art. 7047b, V.T.C.S.) After establishing the tax, the act provided for the following exceptions:

“In determining the market value of gas for the purpose of computing the tax due, there shall be excluded the value of residue gas lawfully injected into the earth in the State of Texas for the following purposes:
(a) storage thereof;
(b) repressuring;
(c) lifting oil; and also
(d) gas lawfully vented or flared in connection with the production of . 0ii; * * (Italics ours)

In 1945, the Legislature passed H.B. 628 in which it substantially amended Article 7047b to provide that in calculating the tax therein levied there shall be excluded:

“(a) gas injected into the earth in this State, unless sold for such purpose;
(b) gas produced from oil wells with oil and lawfully vented or flared; and
(c) gas used for lifting oil, unless sold for such purpose.”

In 1951, and again in 1954, the Legislature made slight amendments to Article 7047b which did not substantially alter the effect of the statute. The 1951 amendment changed the word “purpose” as used in subsections (a) and (c) to the plural form “purposes,” and the 1954 amendment changed the word “purposes” as used in subsection (a) back to “purpose” and used numbers instead of letters to denote the three exclusions.

In 1959, in the general codification of the taxing statutes, Article 7047b became art. 3.01 supra.

The 1941 statute exempted from taxation gas injected into the earth for the purposes specified or gas which was lawfully vented or flared in connection with the production of oil.

The 1945, and subsequent amendments, made these exemptions, among others: (1) gas injected into the earth (2) gas used for lifting oil.

The presumption is, in construing an amendment to an existing statute, that the Legislature intended to change the statute. American Surety Co. of New York v. Axtell Co., 120 Tex. 166, 36 S.W. 2d 715.

In 1947, the Attorney General of Texas rendered an opinion on the specific question presented here. We quote from such opinion:

“ ‘The question has arisen in this department as to whether gas burned in engines used for lifting oil is exempt from the tax levied under Article 7047b R.C.S.
Sub-section (c) of Section 1 (1) of Article 7047b excludes gas used for lifting oil, unless sold for such purpose, in computing the tax on the business or occupation of producing gas within this State.
It is argued that gas used for lease operations might well be within the exclusion provision of gas used for lifting oil. A pumping engine operating a pumping jack uses the gas burned to operate the engine for lifting oil. I shall, therefore, thank you to advise this department whether gas consumed in an engine used for lifting oil is taxable under Article 7047b.
Reference is made to your Opinion 0-4151-A.’
The question presented is the use of gas as explained in your letter exempt from the occupation tax imposed by Article 7047b, by virtue of the exclusion contained in Subsection c of Section 1 of said Article. This subsection reads as follows:
‘Gas used for lifting oil, unless sold for such purpose.’
If the use as explained in your letter, namely as fuel for the operation of a pumping engine which lifts oil, is a use comprehended by said Subsection of the statute, then no tax is due upon the production of said gas. We do not, however, accord such meaning to the phrase in the statute ‘used for lifting oil.’ This term is meant only to apply to gas injected into the earth for repressuring or lifting the oil of the ground, and has no reference to its use as fuel to generate mechanical power, such as pumping operations for lifting oil. This is the construction this Department has heretofore accorded to it. (See Opinion 0-4151-A, a copy of which you have.) This, we think, was the manifest intention of the Legislature, and you are accordingly so advised.”

The previous opinion referred to by the Attorney General, CM-151-A, was rendered in 1941.

The 1947 opinion of the Attorney General did not mention the 1945 Amendment to the statute being construed.

Under these circumstances, we cannot give much weight to the fact that the Comptroller’s department has for twenty years held taxable gas used to power motors used to lift oil.

It is our opinion that the interpretation placed by the Attorney General on the statute in question in 1947 was clearly wrong. Departmental construction of an unambiguous statute which is clearly wrong is not binding on the courts. Guarantee Mutual Life Insurance Company v. Harrison, Commissioner of Insurance of Texas, 358 S.W.2d 404, Tex.Civ.App., Austin, writ ref. n. r. e.

We give meaning and effect to the 1945 Amendment of this statute and hold that gas may be “used” to lift oil without it being injected into the earth.

We also hold that the word “used,” as contained in the statute, is synonymous with the words “employed” or “consumed”. See Reynolds v. McMan Oil and Gas Co., 11 S.W.2d 778, 782, Tex.Comm. of App.

If the word “used” does not have such meaning in the present context, then it has no meaning in the statute. This is true, first, because gas injected into the earth is specifically exempted from taxation, and second, because without injecting gas into the earth to lift oil no means are suggested, and none are apparent, as to how gas could be used to lift oil from the earth except by its consumption in the production of power utilized for such purpose.

It is our opinion that gas which is consumed in furnishing power to operate a “prime mover” or motor which, in turn, operates equipment to lift oil from the earth, either hydraulically or mechanically, unless purchased for such purpose, is exempt from taxation under Art. 3.01, supra. Any other construction of this statute would do violence to the language used in it, and to ordinary statutory rules of construction, and to the plainly expressed legislative intent.

The judgment of the trial court is affirmed.

Affirmed.

      . Acts 1951, 52nd Leg. p. 695, ch. 402, Sec. III; Acts 1954, 53rd Leg. 1st C.S. p. 3, ch. 2, Art. I, Sec. 1.

      . No. V-467, addressed to the State Comptroller.

      . There was inconsistency by the Comptroller in administering: this tax as shown by the testimony of Mr. W. B. Davis, an employee of the department, to the effect that no tax was levied on gas consumed by a motor, “prime mover,” used to compress injection gas that aerated or lifted a column of oil from the earth.


author: PHILLIPS, Chief Justice. HUGHES, Justice.

text:
    F. J. P. MEYER, Appellant, v. WESTERN FIRE INSURANCE COMPANY, Appellee.
    No. 11517.
    Court of Civil Appeals of Texas. Austin.
    June 21, 1967.
    Rehearing Denied Sept. 13,1967.

      John S. Wade, Austin, for appellant.
    Will G. Barber, Michael T. Johnson, Austin, Brown, Sparks, Erwin, Maroney & Barber, Austin, for appellee.
   PHILLIPS, Chief Justice.

This appeal arises out of a suit brought under the Texas Workmen’s Compensation Act.

In January 1966, appellant was injured in an automobile accident when the car he was driving collided with another vehicle on a street in Austin, Texas. At the time of the accident appellant was proceeding to the office of his employer Walter Carrington, a building contractor in Austin. Appellant brought suit against appellee, Carrington’s compensation carrier.

The trial court granted appellee’s motion for summary judgment on the ground that appellant was not in the course of his employment at the time of the accident and it is from this judgment that appellant has perfected his appeal to this Court.

We affirm the judgment of the trial court.

The sole question presented by the appeal, as stated by appellant in his point of error, is the ruling of the trial court in granting appellee’s motion for summary judgment on the grounds that appellant was not in the course of his employment at the time of the accident.

Section 1 of Article 8309, Vernon’s Ann.Tex.Civ.Stat., provides that the term “injury sustained in the course of employment” shall include “all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” The requirements of this statute are not satisfied by proof that injury occurred while the claimant was engaged in or about the furtherance of his employer’s affairs or business. He must also show that the injury was of a kind and character that had to do with and originated in the employer’s work, trade, business or profession. See Smith v. Texas Employers’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192; Texas Indemnity Ins. Co. v. Clark, 125 Tex. 96, 81 S.W.2d 67; Aetna Life Ins. Co. v. Burnett, Tex.Com.App., 283 S.W. 783.

Tex.Rev.Civ.Stat.Ann. art. 8309, Sec. 1b, is as follows:

Sec. lb. Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip. Added Acts 1957, 55th Leg., p. 1186, ch. 397, § 3.”

It has long been the law under the Texas Workmen’s Compensation Act that an injury to an employee incurred while using the public streets and highways in going to or returning from his place of employment is not compensable -because not incurred in the course of employment. The rationale of this rule is that in most instances such an injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with and originating in the work or business of the employer. Texas General Indemnity Company v. Bottom, 365 S.W.2d 350, (Tex.Sup.1963).

Mr. Carrington, appellant’s employer, builds and sells new homes. Appellant was employed by Carrington as a service supervisor to make periodic inspections of his homes and to handle calls and complaints with respect to these homes. As a salaried employee, he furnished his own transportation and worked irregular hours partly at home, partly at Carrington’s office, and partly at the various Carrington subdivisions. At the Carrington office, appellant had a special “slot” for messages, instructions and work orders. He attended conferences at this office and received his salary check there. Consequently, his regular work routine includes almost daily trips to the office.

On the morning of the accident, appellant had completed some paper work at home during which time he had received two telephone calls from one of Carrington’s home building additions and was driving from his home to Carrington’s office following his customary route. It was during this trip to the office that he was involved in the collision in which he was injured.

Appellant contends that he was on twenty-four hour call, seven days a week and that his home was more of an office for his employer’s purposes than was Carring-ton’s actual office. That on the morning before the collision he had already furthered his employer’s interest by receiving two service calls at his home and doing paper work. That in going to Carrington’s office to see if there were any messages, he had actually deviated from an intended trip to Carrington’s University Hills subdivision at which place he had work to do. In support of this contention we are cited to Jecker v. Western Alliance Insurance Company, 369 S.W.2d 776, (Tex.Sup.1963), and Janak v. Texas Employers’ Insurance Association, 381 S.W.2d 176, (Tex.Sup.1964).

With respect to the exceptions set out above in Art. 8309, Sec. lb, to the general rule concerning noncompensability of travel injuries, Carrington did not furnish appellant’s transportation nor did he pay for it. He did not control it nor did he direct appellant in his employment to proceed from one place to another place. Whisenant v. Fidelity and Casualty Company of New York, 354 S.W.2d 683, (Tex.Civ.App. Dallas, 1962, writ ref’d n. r. e.).

Jecker and Janak, relied on by appellant and cited above deal with the concept of a “special mission” wherein the employee is directed in his employment to proceed from one place to another and the plaintiffs involved therein were on such a special mission for their employers at the time of the accidents.

These cases are not in point here. In both cases the injuries did not occur in the regular coming and going travel enroute to work. Both occurred while the employees were in fact in the furtherance of the employer’s business.

Appellant testified that he was on the shortest, customary route from his home to his employer’s office. He had not deviated from it to perform any employer duty and while his trips to the office were somewhat irregular, it is difficult to see how they were different from the trips to the office that employees in general make. He did part of his work there. He received messages and instructions from Carrington there. He attended conferences there and received his pay there. Agricultural Insurance Company v. Dryden, 398 S.W.2d 745 (Tex.Sup.1965).

As stated above, appellant contends that in traveling from his home he was actually proceeding from his office home on the way to work in a subdivision with a deviation by the office. He further contends that at the time of the accident he was carrying his clip board and two full note books with him in his car. In either event, should part of the trip be designated as a “special mission” the fact remains that in proceeding from his home to his office he was also on his way to work in the furtherance of his personal affairs and could not recover as a matter of law under the second part of Art. 8309, Sec 1b.

It would appear as a matter of law that the travel was also in furtherance of personal or private affairs of appellant and would have been made had there been no affairs or business of the employer to be furthered by the trip. See concurring opinion in Agricultural Insurance Co. v. Dryden, supra.

The judgment of the trial court is affirmed.

Affirmed.

DISSENTING OPINION

HUGHES, Justice.

Mr. Carrington built homes. Appellant was his employee whose duty it was to inspect these homes and to handle calls and complaints with reference to them.

On the morning of the accident, appellant left his home on the way to University Hills, a residential subdivision in Austin, for the purpose of making service calls in that area. He deviated from the direct route to University Hills from his home by going by Mr. Carrington’s office to ascertain if other calls for service in University Hills had been received, this in order that they could all be attended to while he was in that area.

Appellant was not employed to work in the office. His work was in the field. He went from place to place. Of course, it was necessary, from time to time, for him to go by the office to give or receive information, but these trips to the office were periodic and incidental to his job.

Under these circumstances, I am of the opinion that appellant was in the course of his employment from the time he left his office-home enroute to a job in University Hills and that his deviation to the office was in furtherance of his employer’s business and in accordance with implied instructions from his employer to make all inspections needed in an area on the same trip.

Appellant had no personal business to attend to at the office. There is no evidence that he would have gone by the office except to see if other inspections were needed in University Hills where he was going.

I believe the opinion in Jecker v. Western Alliance Insurance Company, 369 S.W. 2d 776, Tex. Sup. Ct., supports, in principle, my conclusions. I quote from that opinion:

“The general rule is, * * * that injuries incurred by a workman while traveling on public streets and highways are not incurred in the course of employment. But there are exceptions to that rule. One of the exceptions is when injury occurs while the workman is traveling on the public streets or highways pursuant to express or implied requirements of his employment contract. * * * The rationale of it is that since the workman’s employment requires him to subj ect himself to the risks and hazards of streets and highways, his injuries grow out of his employment.
* * * * * *
But the Legislature surely did not intend to provide that an employee whose employment requires him to travel at his own expense in his own automobile on streets and highways, either constantly or intermittently, should be denied compensation if accidently injured while thus exposed to risks growing out of his employment. Any such holding would be wholly unjust to salesmen, servicemen, repairmen, deliverymen, and a host of others who may be required to use their own automobiles in their work, and would be a strict rather than a liberal interpretation of the Workmen’s Compensation Act.
It is to be noted that one of the exceptions to the provision in Sec. lb that ‘transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment’ is when ‘the employee is directed in his employment to proceed from one place to another.’ We construe this exception to include those situations in which the employee proceeds from one place to another under the terms of an employment which expressly or impliedly required that he do so to discharge the duties of his employment.”

I would reverse and remand this cause for trial.

I respectfully dissent.

      . Appellant testified:
      “A Oh, I’d got two phone calls from the addition out in South Austin, Fairview, and I did a little typing, I got my books all squared away. See, this was a Friday; we had a meeting at 1:00 o’clock on Friday the sub meeting. And I got all my stuff in order for the meeting. And when I left there I needed to go to University Hills, and I thought I’d run by the office and check what may be over there in case there was something in University Hills and I’d catch it all at one tiihe. So I made the office— that is, I started to the office and thence to University Hills, and that would have carried me up until dinner time and then the sub meeting.
      Q So your purpose for going by the office was to check your little slot and see if you had any phone calls or anything for University Hills?
      A Yes, sir.”


text:
    Lex L. PENIX, Appellant, v. Victor Truman SPOON, Appellee.
    No. 4163.
    Court of Civil Appeals of Texas. Eastland.
    July 21, 1967.
    Rehearing Denied Aug. 25, 1967.
    Wagstaff, Alvis, Charlton & Alvis, David G. Stubbeman, Abilene, for appellant.
    A. J. Smith, Anson, for appellee.
   WALTER, Justice.

Lex L. Penix filed suit against Victor Truman Spoon for property damage growing out of an automobile collision. Spoon filed a plea of privilege to be sued in Hardeman County. The plea of privilege was sustained.

Penix has appealed. The judgment is based on the Court’s conclusion that appellant failed to show that any damages were sustained by him in the accident. Venue is regulated entirely by statutes. Proof of damages is not required by subdivision 9a of Article 1995, Vernon’s Ann.Civ.St. In Cumba v. Union Bus Lines, Inc., 229 S.W.2d 176, (Tex.Civ.App. no writ history), the court said:

“The pleading which gives jurisdiction to the lower court alleged the amount of damages sufficient to come within the jurisdiction of that court. We hold that it was not necessary on a hearing of the plea of privilege to establish the amount of the damage. That could be established on the trial on the merits. Foster v. Gainsville Bus Lines, Tex.Civ.App., 187 S.W.2d 144.”
Also in Hawkins v. Schroeter, 212 S.W. 2d 843, (Tex.Civ.App., no writ history), the Court said:
“It is conceded that the amount of pecuniary damages sustained as the result of the injury, the extent of the injury, in other words, is not a venue fact, nor an element of a venue fact. Therefore, all a plaintiff needs to show in order to maintain venue is that a legal right of his has been violated as a result of a particular class or kind of wrongful act.”

We are compelled to hold that the Court erred in holding that proof of damages was a venue fact.

The judgment is reversed and the cause is remanded.


author: PHILLIPS, Chief Justice.

text:
    T. A. MANNING & SONS, INC., et al., Appellants, v. KEN-TEX OIL CORPORATION et al., Appellees.
    No. 11525.
    Court of Civil Appeals of Texas. Austin.
    June 28, 1967.
    Rehearing Denied Sept. 13, 1967.

      Henry Klepak, Roy J. True, Dallas, for appellants.
    Clark, Thomas, Harris, Denius & Winters, Donald S. Thomas, Roderick Edens, Jr., Austin, for appellees.
   PHILLIPS, Chief Justice.

This action was brought in the trial court by the Court-appointed receiver of Lumbermen’s Insurance Corporation. Subsequently a Petition in Intervention was filed in behalf of five parties seeking to intervene as plaintiffs. The Court-appointed receiver, the original plaintiff, is not a party to this appeal.

The intervenors, appellees here, sought to recover a money judgment against thirteen named defendants, jointly and severally, as damages arising out of alleged grounds of fraud, misrepresentation, breach of contract and conspiracy in wrongfully extracting a sum of money in excess of $969,000 from Lumbermen’s Insurance Corporation.

The trial of this cause extended over a period of approximately thirteen weeks. Prior to submission of the charge to the jury, four of the thirteen named defendants were dismissed from the lawsuit on motions filed in their behalf.

Appellants, T. A. Manning & Sons, J. D. Owens and his wife Lelia H. Owens, three of the defendants below, have appealed from the ruling of the trial court awarding appellees a money judgment against them.

We affirm.

Appellants are before this Court on five points of error, the first three, briefed together are: the error of the trial court in awarding judgment for appellees against appellant J. D. Owens for the reason that the jury finding to special issue No. 1 was in irreconcilable conflict with the trial court’s ruling and findings on special issues Nos. 1A, IB and 1C; in awarding judgment against the appellant J. D. Owens, for the reason that such judgment does not conform to the jury verdict in contravention of Rule 301, Texas Rules of Civil Procedure; in awarding judgment for appel-lees against Appellant J. D. Owens for the reason that the jury finding to special issue No. 1 is totally without support in the evidence or is supported by no evidence.

We overrule these points.

No statement of facts was brought up on this appeal.

Special issue No. 1 inquired as to whether certain of the defendants in the case entered into a conspiracy with the defendant James D. Owens to misappropriate funds of Lumbermen’s Insurance Corporation. The jury was then instructed that if they answered yes to this issue then they should find whether the defendant Lew C. Sayers (special issue No. 1A) was a party to the conspiracy; whether defendant B. J. Ready (special issue No. IB) was a party to the conspiracy; whether defendant J. Allen Rhodes (special issue No. 1C) was a party to the conspiracy.

The jury answered each of these issues in the affirmative, however the trial court, on proper motions, found that there was no evidence to support the jury findings in regard to sub-issues numbers 1A, IB and 1C, disregarded them and entered judgment in favor of Sayers, Ready and Rhodes. However, the court entered judgment against Owens as described above.

Appellants contend that notwithstanding his motion Non Obstante Veredicto, judgment was entered over the objection of counsel for Owens, the objection being based principally on the grounds of the court’s ruling on “no evidence” to support the jury findings as to sub-special issues 1A, IB and 1C was in irreconcilable conflict with the jury’s findings on special issues Nos. 1 and 2 and that such judgment would be contrary to Rule 301, Texas Rules of Civil Procedure.

We cannot agree with this contention.

It is well settled that the trial court can ignore the answer to immaterial issues and render a judgment and such judgment will not be rendered non obstante veredicto. Thomas v. Gulf Banana Dispatch Co., 26 S.W.2d 665 (Tex.Civ.App. Amarillo 1930, writ dism’d w. o. j.); Hogg v. Smith, 157 S.W.2d 165, (Tex.Civ.App., Texarkana 1941, writ ref’d w. o. m.). It is only when the issue is material that the judgment must conform to the finding. Massie v. Hutcheson, 270 S.W. 544 (Tex.Comm’n App. 1925).

There is no need for this Court to pass on the adequacy of the court’s ruling as to conspiracy when the pleadings of appellees additionally alleged breach of contract and fraud and misrepresentation. Special issues should not be submitted where the facts in question are conclusively established, Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627 (1926); Benefit Ass’n of Ry. Employees v. O’Gorman, 195 S.W.2d 215 (Tex.Civ. App. Fort Worth 1946, writ ref’d n. r. e.). On appeal there is a rebuttable presumption that omitted special issues were established as a matter of law. Livezey v. Putnam Supply Co., 30 S.W.2d 902 (Tex.Civ.App. Eastland 1930, writ ref’d).

Furthermore, appellants must show that the evidence raised, but did not conclusively establish, the omitted issues. City of Dublin v. Hicks, 120 S.W.2d 872 (Tex.Civ.App. Eastland 1938, no writ).

The burden of appellants here is insurmountable as no statement of facts was filed in this cause. Thus, they are prevented on appeal from discharging their burden of overcoming the presumptions regarding evidence in support of the judgment. Houston Fire & Casualty Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600 (1953).

The judgment of the trial court was based upon the verdict insofar as issues regarding damages to appellees were concerned, but the particular theory or theories of recovery were, as recited by the court, based on additional “findings as were authorized by law.” It is neither necessary nor appropriate for the appellees to request, or the trial court to make, specific findings of fact or conclusions of law, since a jury heard this cause. Ditto v. Ditto Investment Co., 158 Tex. 104, 309 S.W.2d 219 (1958).

Appellants’ fourth and fifth points of error, briefed together, are the error of the trial court in awarding judgment for appellees against appellant, Lelia H. Owens, for the reason that said judgment does not conform to the jury verdict and that such ground of recovery against the appellant, Lelia H. Owens, was waived by the ap-pellees ; in awarding judgment against the appellant T. A. Manning and Sons, Inc. for the reason that said judgment does not conform to the jury verdict and that such ground of recovery against the appellant T. A. Manning & Sons, Inc. was waived by the appellees.

We overrule these points.

Here appellants contend that appellees have failed to request submission of a special issue inquiring as to whether Lelia H. Owens or T. A. Manning & Sons, Inc. were parties to the conspiracy alleged by appellees, that the court failed to submit such controlling issues, that said inquiries were independent grounds of recovery against these parties, and, therefore should have been deemed as waived.

We cannot agree with appellants here. Rule 279, T.R.C.P. reads, in part, as follows: “Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon -which no issue is given or requested shall be deemed as waived; * * Irrespective of the fact that no issue was given or requested upon independent grounds or recovery against appellants Lelia H. Owens and T. A. Manning & Sons, Inc., appellants must show the court that such grounds of recovery, alleged in appellees’ pleadings, were not conclusively established by the evidence. Appellants cannot do this because there is no statement of facts filed herein. Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65; Tex.Civ.App., 214 S.W.2d 826 (1948); Continental National Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928 (1948). While a judgment, in the absence of the evidence upon which it was rendered, will be sustained by presumption, it will never be rendered invalid by presumption. Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549 (1946).

The judgment of the trial court is affirmed.

Affirmed.

      . These were: Ken-Tex Oil Corporation, Investments, Inc., Southwestern Fire & Casualty Co., Kenneth Murchison & Co. and Murchison Trusts.

      . Special Issue No. 2 inquired as to whether the funds of Lumbermen’s were misappropriated pursuant to the conspiracy, inquired about in special issue No. 1 (if any conspiracy had been found).

      . “Rule 301. Judgments
      The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that .the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence. Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law. Judgment may, in a proper case, be given for or against one or more of several plaintiffs, and for or against one or more of several defendants or intervenors.”


text:
    J. L. NUTT and Crown Credit Corporation, Appellants, v. Jerry CURLES et ux., Appellees.
    No. 11526.
    Court of Civil Appeals of Texas. Austin.
    June 28, 1967.
    Rehearing Denied Sept. 13, 1967.

      Geary, Brice & Lewis, Robert A. Baker, Dallas, for appellants.
    T. O. Dillard, Austin, for appellees.
   PHILLIPS, Chief Justice.

This is a suit to enjoin the sale, under judicial decree, of a tract of land situated in Bastrop County, Texas.

Appellants initially filed suit in August, 1965, in the 68th District Court of Dallas County, Cause No. 65-7383-C, seeking judgment on a note secured by a Mechanic’s and Materialman’s lien on the real property in question. Appellees filed an answer, cross action, a plea of privilege and appeared in person and by their attorney at the plea of privilege hearing. Ap-pellees’ plea of privilege was overruled, after which, appellees non-suited their cross action. Appellants moved for summary judgment and this was granted ordering the sheriff to foreclose appellants’ Mechanic’s and Materialman’s lien.

The sheriff of Bastrop County posted notices of the proposed sale, whereupon appellees filed suit in Bastrop County in Cause No. 12,667 seeking, among other things, a temporary restraining order and a temporary injunction to prevent appellants from proceeding with the sale of the property. After a hearing thereon, the court granted appellees the injunctive relief prayed for. It is from this order that appellants have perfected their appeal to this Court.

Appellees sought their injunctive relief from the district court in Bastrop on the theory that the property in question was their homestead, that this question had not been raised or litigated in the suit in Dallas; that the lien was defective in that the signature of the wife had not been taken as required by law.

We grant appellants’ point that Vernon’s Ann.Tex.Rev.Civ.Stat. art. 4656 requires that writs of injunction granted to stay proceedings in a suit, or execution of a judgment shall be returnable to and tried in the court where such suit is pending or such judgment was rendered. See University of Texas: Hodges, Collateral Attacks on Judgments, 41 Texas L.Rev. 173, Sec. B, (1962) and the cases cited therein. This requirement has been held to be jurisdictional.

Therefore, we must reverse and remand this case with instructions to the trial court to make the injunction returnable to the 68th District Court of Dallas County and to transfer these proceedings to said court, the court that rendered the judgment the enforcement of which has been enjoined.

Appellees have a cross assignment of error to the effect that this Court lacks jurisdiction to hear this appeal inasmuch as the appeal was filed later than twenty days after the first order of the court entering a temporary injunction.

We overrule this point.

The trial court entered a temporary injunction on August 9, 1966. On October 19, 1966, appellants and appellees joined in a motion to set aside this order. On October 20, 1966, the court entered an order setting aside the temporary injunction bearing the date of August 9, 1966 and substituting therefor a new order of identical language in lieu thereof. The ruling of the court on an interlocutory matter may be set aside or altered provided the case has not previously been disposed of on its merits with certain exceptions not applicable here. Wichita Falls & S. R. Co. v. McDonald, Chief Justice et al., 141 Tex. 555, 174 S.W.2d 951 (1943); Looney v. Traders & General Ins. Co., 231 S.W.2d 735 (Tex.Civ.App. Fort Worth 1950, writ ref’d n. r. e.). The twenty day period for appeal began at the time the court entered the new order of October 20, 1966.

The judgment of the trial court is reversed and remanded as per instructions.

Reversed and remanded with instructions.


author: NYE, Justice.

text:
    Joe B. MILAM, Jr., Appellant, v. James L. COLEMAN, Jr., Appellee.
    No. 290.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 22, 1967.
    Rehearing Denied Aug. 31, 1967.

      Harry F. Maddin, of Cullen, Mallette, Maddin, Edwards & Williams, Victoria for appellant.
    O. F. Jones, of Guittard, Henderson, Jones & Lewis, Victoria, for appellee.
   OPINION

NYE, Justice.

The single question involved in this case is the construction of the warranty deed from the appellant Milam to appellee Coleman. The question is whether the grantor Milam may remove two houses from the two lots involved, after the ninety days from the execution of the deed by the grantor has expired. The grantee Coleman brought suit for a temporary injunction and declaratory judgment against the grantor involving the title and ownership to the two houses on the lots which had previously been conveyed to the grantee. The trial was to the court without a jury and upon completion of the evidence the court entered judgment for James L. Coleman, Jr., declaring that he is the owner of the lots and improvements and that grantor Joe B. Milam, Jr. has no interest in the two houses. It is from this judgment that this appeal is taken.

The pertinent portions of the warranty deed in question are as follows:

“THAT I, Joe B. Milam, of Victoria County, Texas, for * * * valuable consideration to me in hand paid by James L. Coleman, Jr., * * * have GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents do grant, bargain, sell and convey unto James L. Coleman, Jr., of Victoria County, Texas, all of the following described property situated in Victoria County, Texas, to-wit:
(Legal description of property)
“PROVIDED, however that Grantor shall have the right to remove the houses and other improvements located upon the premises, and in such event Grantee shall have no claim upon such houses or improvements, but Grantor shall remove said houses within ninety (90) days from the date of execution of this Deed, and in the event of such removal, Grantor shall level and smooth the lots, leaving nothing above ground level except growing vegetation.
“TO HAVE and TO HOLD the above described and conveyed land and premises, together with all and singular' the rights, improvements and appurtenances to the same in any manner belonging, incident or appertaining, unto the said James L. Coleman, Jr., his heirs and assigns, forever, subject to the above provision regarding the removal of certain improvements.
(Paragraph concerning vendors lien retained)
“AND I, Joe B. Milam, do hereby bind myself, my heirs, executors and administrators, to warrant and forever defend all and singular the above described and conveyed land and premises unto said James L. Coleman, Jr., his heirs and assigns, against the claim or claims of any and all persons whomsoever lawfully claiming, or to claim the same, or any part thereof.” (Emphasis supplied.)

It was undisputed that the houses were not moved within ninety days from execution of the deed and although Milam had made arrangements within such ninety days for a house mover to remove the same, neither party had contacted and other until after the ninety-day period had expired. After the expiration of the ninety days Milam attempted to come upon the property involved for the purpose of removing the houses, whereupon Coleman brought this suit.

Appellant’s single point complains of the error of the trial court in finding and concluding that the intention of the parties was that the houses in question should become the property of appellee if not removed in ninety days because said findings of fact are not supported by the evidence and because the deed does not clearly express the intent of the parties that a forfeiture would be worked at the expiration of ninety days but to the contrary by all reasonable rules of construction the ninety-day provision was no more than a covenant, the breach of which would give rise to a cause for damages and not work a forfeiture.

It is the law of this state that in construing deeds, the court should give effect to the intention of the parties in view of the fact that such instrument is a bilateral agreement evidencing a meeting of the minds of both parties. The court will ascertain and give effect to the intention of the parties as gathered from the entire instrument together with surrounding circumstances. Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608 (1956); 19 Tex.Jur.2d 391-392, § 107, Deeds.

During the course of the trial it was developed from the evidence that the giving of the deed in question was the result of negotiations that led to the settlement of a prior suit involving deed restrictions on some adjoining property to the property in question. As a result of the settlement of this prior law suit Coleman purchased the property from Milam. The trial court found that Coleman had offered to either pay Milam $20,000.00 for the two lots and houses or to pay him $19,000.00 with possession to be delivered to the property ninety days after the execution of the deed; that Milam accepted the latter proposition. The court further found that the parties intended that title to Lots 17 and 18 would pass to Coleman upon execution of the deed and title to the houses in question would pass to Coleman at the end of ninety days from the date of execution of the deed and that Coleman would take possession of the lots, together with any improvements and appurtenances of the same at the end of ninety days after the execution of the deed. The court further found that Milam could retain the houses in question located on the two lots at the time of the execution of the deed if he removed them from said lots prior to the expiration of ninety days; that the ninety days had expired and Milam had not removed the houses in question from the two lots. The court concluded that the deed in question plainly and clearly expressed' the intent of the parties that Coleman would be the owner of the houses in question at the end of ninety days from the execution of the deed if Milam had not previously removed the same; that Milam having failed to remove the said houses at the expiration of ninety days after the execution of the deed title thereto passed to Coleman and the houses are presently his property.

A reading of the deed from its four corners to give effect to the intent of the parties, we find that the following language sheds light upon this intent. First, the grantor evidences an intention to convey all of the property involved in the beginning granting clause. The deed says "have GRANTED, BARGAINED, SOLD and CONVEYED and by these presents do grant, bargain, sell and convey unto James L. Coleman, Jr. all of the following described property situated in Victoria County, Texas.” (Emphasis supplied.) The rule is that in absence of a specific reservation in a deed, buildings and other improvements used in connection with realty in such a way as to constitute appurtenances or fixtures, pass as a matter of course by the conveyance which decrees the title to the realty to the grantee. Pickrell v. Pickrell, 134 S.W.2d 740, 743 (Tex.Civ.App.-Amarillo 1939). If there was nothing to the contrary, at this point the houses would go with the lots.

The proviso contained in the deed which follows the legal description is not a reservation or exception in the strict sense. The intent of the grantor to create an exception should be clearly expressed and should be as definite and certain as the granting clause of the deed. 26 C. J.S.Deeds §§ 137-138. This proviso evidences an intent on the part of the parties to treat for the time being the improvements and fixtures movable personal property. It is said in the deed that Milam the grantor shall have the right to remove the houses and other improvements located on the premises “and in such event” or, in other words if he exercises this right “grantee shall have no claim upon such houses or improvements.” What is not said but is clear from the language, is that if the grantor does not exercise this right he will have no claim to the houses. The condition of the proviso states that the grantor Milam “shall remove said houses within ninety (90) days from the date of the execution of this Deed,” and then the proviso goes on to say that “and in the event of such removal, grantor shall level and smooth the lots, leaving nothing above ground level except growing vegetation.”

In 25 Tex.Jur.2d 408, § 15, Fixtures, it is said: “Since improvements are deemed to have been made for the permanent enrichment of the freehold, in the absence of an agreement to the contrary, things permanently affixed to the realty by a vendor, prior to the execution of a contract of purchase or before a conveyance, are not removable but pass to the vendee, even though such things are not mentioned in the deed, * * *.” Where the vendor reserved to himself the right to remove the fixtures from the property, he would have a reasonable time after the delivery of the deed within which to remove such fixtures. Where the parties contract to the effect that if the vendor does remove the fixtures, the grantee would have no claim to such fixtures, then title would pass upon the removal within a reasonable time. Where the parties set a time limit for removal by a provision in their agreement then the parties are relegated at the time set by them. See also 25 Tex.Jur.2d 426, § 29, Fixtures. It has been held that where the instrument said “not later than 90 days” it means within that time. It is the equivalent of on or before ninety days. Hansen v. Bacher, 299 S.W. 225 at 227 (Tex.Com.App. 1927, opinion approved).

The habendum clause gives all of the property, including the improvements to the grantee subject to the above proviso regarding the removal of the improvements. The fourth corner of the instrument being the warranty clause, the grantor binds himself to warrant and forever defend the above described and conveyed land and premises without exception or reservation. We view the language of this instrument as an intent on the part of the parties to treat the houses as personalty for a ninety-day period within which the grantor had the right to remove the property which otherwise would be a part of the land and follow the conveyance of the lots.

It has been said most appropriately, by the eminent Texas Jurist that:

“ * * * In every judicial investigation the discovery of the truth should be the aim and desire of the court, and obviously, if an instrument of writing is obscure, the ascertainment of the intent of the parties to it should be the end sought, and, if that end can be accomplished by evidence aliunde, it should be admitted. * * * ” Cox v. Rust, 29 S.W. 807 (Tex.Civ.App. 1895 by Fly, J.)

The record before us shows that there was introduced into evidence a letter which amounted to a proposal by Coleman to Mil-am’s agent with a copy of the letter to Milam’s attorney. This letter had this statement in it: “Dr. Coleman will purchase the two lots of Mr. Milam’s on Louise Street for $20,000.00 cash with immediate possession upon delivery of the deed, or he will pay $19,000.00 cash and allow Mr. Milam to retain the two houses presently there provided they are removed from the premises within 90 days.” Other evidence in the record substantiates that the parties intended that Milam could have the houses provided he removed them from the property within ninety days from the execution of the instrument. If the deed is susceptible to any other construction than that which we have held herein, then we hold that the evidence received by the trial court was sufficient to clarify the intent of the parties to the deed. Appellant’s point is overruled.

Judgment of the trial court is affirmed.


author: GRISSOM, Chief Justice.

text:
    Beth R. TERRILL, Administratrix, et al., Appellants, v. Mary N. DAVIS, Appellee.
    No. 4164.
    Court of Civil Appeals of Texas. Eastland.
    July 28, 1967.
    Rehearing Denied Aug. 25, 1967.
    Martin, Moore & Tackett, Elvin E. Tackett, Ft. Worth, for appellant.
    Ponder & Pearson, Sweetwater, for ap-pellee.
   GRISSOM, Chief Justice.

In 1951, Myrtal D. Mullican, a widow, purchased the Sundown Motel in Sweetwa-ter and sold a one-half interest to Thomas B. Davis. They made a contract which provided for operation of the motel by Davis with profits and losses being shared equally. It contained a provision that if, during the lifetime of said parties, either desired to sell his interest he should give the other written notice stating the terms and conditions and the other party should have thirty days to decide whether to buy that interest. It provided that if Mrs. Mullican should die while said parties were joint owners her heirs, or devisees, could not sell her interest for ten years without the consent of Davis.

On November 25, 1955, Mrs. Mullican and Mr. and Mrs. Davis made another contract governing the disposition of their interests in their lifetime and at their death. Paragraph 3 was as follows:

“In the event the First Party (Mrs. Mul-lican) shall die while either or both of the Second Parties are still living, then the First Party does hereby give, grant, bargain, sell and convey unto the Second Parties or to whichever of them shall survive the First Party, all of the First Party’s undivided one-half interest in the aforesaid real estate and the improvements thereon so that the Second Parties, or whichever of them shall survive the First Party, shall thereafter have, hold and own the above described real estate and improvements and all personal property used in connection therewith free and clear of any claim of the estate of the deceased First Party and free and clear of any indebtedness which may be owing by the Second Parties to the First Party at the time of the latter’s death, it being the intention of the First Party that all such indebtedness be cancelled at the death of the First Party. For the purpose of carrying out the provisions of this paragraph, the First Party has this day executed and acknowledged two general warranty deeds, one conveying her undivided one-half interest to Thomas B. Davis and the other conveying her undivided one-half interest to Mary N. Davis; and in the event both of the Second Parties survive the First Party at her death, then the deed conveying the First Party’s undivided one-half interest to Thomas B. Davis shall be delivered by the aforesaid bank, with whom said deeds have been placed in escrow, to Thomas B. Davis, but in the event only Mary N. Davis, then the deed conveying said property to Mary N. Davis shall be delivered by said bank to Mary N. Davis. Also the First Party has this day executed and acknowledged a release of a note in the original principal sum of Nineteen Thousand, Five Hundred and No/100 ($19,500.00) Dollars, said note being hereinabove mentioned, which release shall be delivered by said bank to whichever of the Second Parties shall survive the First Party. In the event both of the Second Parties shall predecease the First Party, then the provisions of this paragraph and the conveyance herein made and the warranty deeds and release hereinabove mentioned shall be of no force and effect but shall be null and void and the aforesaid Bank shall return to the First Party the Warranty Deeds and the release hereinabove mentioned.”

There was a like provision in favor of Mrs. Mullican in the event both Mr. and Mrs. Davis died before she did. Said deeds and a release of the $19,500.00 note were executed by Mrs. Mullican and delivered to a Sweetwater Bank, which acknowledged their receipt and agreed to hold and deliver them in accord with said 1955 contract.

Thereafter, Mrs. Mullican became insane and her guardian wrote Mr. and Mrs. Davis that she would not honor said agreement, whereupon, the Davises instituted this suit seeking a declaratory judgment that the 1955 contract was valid and that upon the death of Mrs. Mullican with Mr. and Mrs. Davis surviving that said property would be owned by them in fee. Before the trial Mrs. Mullican died. Mrs. Terrill became administratrix of her estate. Mrs. Mullican was survived by both Mr. and Mrs. Davis. Thereafter Mr. Davis died, while the case was pending, leaving a will which has been duly probated, devising his property to his wife and appointing her independent executrix. She has qualified. The legal representative and heirs at law of Mrs. Mullican were made defendants. Both sides filed motions for summary judgment. The 1955 agreement was a part of both motions. Mary N. Davis’ motion for summary judgment was supported by the affidavit and depositions of her deceased husband and pleadings and admissions. The court sustained it and rendered judgment awarding said motel, improvements and the personal property used in connection therewith to Mrs. Davis and held that she was vested with the fee simple title thereto and that Mrs. Mullican’s representative and heirs had no right, title or interest therein. The motion of Mrs. Mullican’s representative and heirs for summary judgment was overruled and the bank was ordered to deliver to Mrs. Davis the deeds and instruments deposited with it. The Davis’ note for $19,500.00 had been paid during the lifetime of all of said parties. The defendants have appealed.

Appellants say that Mrs. Davis obtained said judgment upon the theory that she was entitled to said property under the 1955 contract; that Mr. and Mrs. Davis, surviving joint owners, became the owners thereof in fee upon the death of Mrs. Mul-lican. That statement is correct. But, appellants contend that said contract and the instruments executed in connection therewith and delivered to the bank were ineffectual to convey title to Mr. and Mrs. Davis as a deed; that they did not become effective until after the death of Mrs. Mullican and constituted an attempt to make a testamentary disposition of said property by an instrument which lacked the requisites of a will. They say that, first and foremost, it is their position that no present or vested interest was conveyed by Mrs. Mullican to the Davises and, since it was an attempted testamentary disposition without compliance with the requisites of a will, said instruments could not convey said property or support the judgment rendered. We do not agree with the appellants’ said contention. They cite Wren v. Coffey, Tex.Civ.App., 26 S.W. 142, wherein an instrument purporting to be a deed, but which was testamentary in character, was held not effective as a present conveyance; Carlton v. Cameron, 54 Tex. 72, 77, wherein a recorded instrument in the form of a deed but not intended to take effect until death was held not to convey the property. They also cite cases such as De Bajligethy v. Johnson, 23 Tex.Civ.App. 272, 56 S.W. 95; Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306; and Chavez v. Chavez (Sup.Ct.), 13 S.W. 1018, and Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744. The instrument in question in Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306, was held by our Supreme Court to be an attempt to execute a will without complying with the requisites thereof. With due deference to the earnest insistence of appellants, we think said authorities are not controlling. Appellants argue that the 1955 agreement provides that either may sell all their undivided one-half interest to a third party; that no provision was made for sale of the interest either had in a joint tenancy but all of his interest, which, they say, was inconsistent with appellee’s claim of the right of survivorship, because either could sell all his interest in his lifetime and each had a right to dispose of his one-half interest and thereby prevent any interest from passing to the other upon his prior death. They say that if death is relied upon as the occurrence passing title, then it is an attempted testamentary disposition which is ineffective because the requisites of a will were not complied with. We do not agree with appellants’ contentions.

As stated by appellee, the controlling question is whether the 1955 contract created the right of survivorship in Mr. and Mrs. Davis upon the prior death of Mrs. Mullican. We hold that it did. Appellants say it was contrary to public policy to create a joint tenancy in land with right of survivorship at the time the motel was acquired and at the time of execution of the 1955 contract. We think this contention of appellants is erroneous and that the contract for a joint tenancy with right of survivorship was not unlawful or contrary to public policy. Old Article 2580 provided:

“Where two or more persons hold an estate, real, personal or mixed, jointly, and one joint owner dies before severance, his interest in said joint estate shall not survive to the remaining joint owner or joint owners, but shall descend to, and be vested in, the heirs or legal representatives of such deceased joint owner in the same manner as if his interest has been severed and ascertained.”

It was in force in 1939 when the court in Chandler v. Kountze, Tex.Civ.App., 130 S.W.2d 327, held that said statute did not prevent parties to a written contract from expressly agreeing therein that jointly owned property should pass to and vest in the survivor and that such a contract was not in contravention of said statute but was enforceable when it clearly expressed such an intention. Our Supreme Court refused a writ of error. In 1955 that statute was repealed and Section 46 of the Probate Code was enacted. It provides:

“Where two or more persons hold an estate, real, personal, or mixed, jointly, and one joint owner dies before severance, his interest in said joint estate shall not survive to the remaining joint owner or joint owners, but shall descend to, and be vested in, the heirs or legal representatives of such deceased joint owner in the same manner as if his interest had been severed and ascertained. Provided, however, that by an agreement in writing of joint owners of property, the interest of any joint owner who dies may be made to survive to the surviving joint owner or joint owners, but no such agreement shall be inferred from the mere fact that the property is held in joint ownership.”

The provisions in the Probate Code that by an agreement in writing joint owners may provide that the interest of a joint owner who dies may be made to survive to the surviving joint owner, but that no such agreement shall be “inferred from the mere fact that the property is held in joint ownership”, was simply a declaration of the law as it then and theretofore existed, and as it had been declared in Chandler v. Kountze, supra. See also Shroff v. Deaton, Tex.Civ.App., 220 S.W.2d 489. In 15 Tex.Jur.2d, Section 5, at page 158, it is stated that under our Probate Code the interest of a deceased joint owner does not survive to the remaining joint owner but goes to his heirs or legal representative “unless there is a written agreement that the deceased owner’s interest survives to the surviving owner.” The question whether such an agreement may be oral is not presented. The trial court correctly rendered the judgment appealed from. The 1955 written contract clearly expressed the intention that the surviving joint owner should become vested with the fee simple title to said jointly owned property. That agreement was not prohibited by statute or public policy.

We overrule appellants’ further contention that Mrs. Mullican’s guardian terminated that agreement by renouncing it. See 64 A.L.R.2d 921 and 941; 69 A. L.R.2d 1053; Hammond v. McArthur, 30 Cal.2d 512, 183 P.2d 1, 3; Taylor v. Smith, 116 N.C. 531, 21 S.E. 202 ; 20 Am.Jur.2d, Section 4, page 97. See also Adams v. Jones, Tex.Civ.App., 258 S.W.2d 401; Johnson v. Johnson, Tex.Civ.App., 306 S.W.2d 780, 783, (Writ Ref.); Davis v. East Texas Savings and Loan Ass’n., 163 Tex. 361, 354 S.W.2d 926,931.

All of appellants’ points are overruled. The judgment is affirmed.