author: DAVIS, Justice. FANNING, Justice

text:
    KING CONSTRUCTION COMPANY, Appellant, v. W. M. SMITH ELECTRIC COMPANY, Appellee.
    No. 7298.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 29, 1961.
    Rehearing Denied Nov. 21, 1961.

      Raffaelli & Keeney, Texarkana, for appellant.
    Norman C. Russell, Atchley, Russell & Hutchinson, Texarkana, H. L. Morrison, Jr., Dallas, for appellee.
   DAVIS, Justice.

On or about December 4, 1956, W. M. Smith Electric Company, hereinafter referred to as Smith, conveyed to King Construction Company, hereinafter referred to as King, an estimate upon an electric overhead crane, as “specified” by the Atomic Energy Commission, in connection with a contract that was about to be let for the construction of a plant near Amarillo, Texas. Smith submitted an offer to sell the overhead crane, as “specified”, for a total price of $16,691 f. o. b., factory. As the result of the offer by Smith, King made a bid with reference to the overhead crane at a total price of $17,900.

On December 5, 1956, King was awarded a contract, with penalty provisions, to build the plant, and was to commence work immediately. On December 6, 1956, King entered into an oral contract with Smith, and Smith agreed to sell to King the overhead crane, as “specified”, for the sum of $16,691.00. On December 12, 1956, Smith informed King that it would not deliver the overhead crane for $16,691. Smith made the excuse that the Inspector and the Atomic Energy Commission would not approve the crane Smith “proposed” to deliver. King had already contracted on the basis of the previous bid. King instructed Smith to go and see if it was possible to get the crane Smith “proposed” to deliver approved. An agent of Smith went to Burlington, Iowa, and Muskegon, Michigan.

After many telephone calls and other communications, a written contract dated January 8, 1957, was entered into between Smith and King, whereby Smith agreed to sell to King the same crane (as specified) for the sum of $30,750. Prior to the signing of this contract, King had insisted that the crane be delivered for $16,691. King did place an order to Smith for the crane at the price of $30,750, but Smith refused to ship the crane until King had signed the written contract.

Prior to signing the contract, King made other contacts for the purpose of trying to purchase a crane elsewhere. It learned that there had been only one such crane built in prior years. Smith was the agent for the company that built the crane. There were other companies that built overhead cranes, but none of them would be approved. King was forced to sign the contract for the purchase of the crane so it could build the plant according to its contract.

The crane was delivered and installed. King paid 85% of the $30,750, which it had contracted in writing to pay for same. King then refused to pay the balance of $4,612.50, and Smith filed suit. King answered and filed a cross-action setting up that it had overpaid Smith the sum of $9,446.50, and asked -for a judgment for that amount against Smith.

The court entered a judgment in behalf of Smith for the sum of $4,612.50, and a $750, attorney’s fee. From this judgment King has perfected its appeal and brings forward nine points of error.

The court filed his findings of fact and conclusions of law.

By its point No. 5, appellant complains of the action of the trial court in holding that King was not compelled by duress to enter into a new contract, and the original contract was novated. The court found that Smith knew that the crane which it “proposed” to deliver, to King for $16,691 did not meet the “specifications” as contained in the contract between King and the Atomic Energy Commission. The court found that King did not know that the crane Smith “proposed” to deliver did not meet the “specifications” and requirements as contained in the contract. The court found that King was not compelled by fraud or duress to enter into a new contract with Smith, but King only did so by reason of fear of economic loss. Only one such motor had previously been built. It was built by Manning, Maxwell and Moore, represented by Smith. King was under a contract which provided penalties in case of delay. There could not be another motor purchased elsewhere. Manning, Maxwell and Moore built the cranes and sold them through their agents.

It seems that Smith took an undue advantage of King in refusing to deliver the crane “specified” for the price of $16,691. As a result thereof, King was at a loss. It could not acquire the crane elsewhere, and actually it was compelled by virtue of fear of economic loss (a duress), to enter into the signed contract.

Under the law as stated in 31 Tex.Jur. 383-407 “Novations”, a contract that has been entered into cm not be novated without the absolute agreement on the part of both parties. 31 Tex.Jur. 387-8, Sec. 5, reads, in part, as follows: “* * * A reaffirmation by a party of his obligation under a contract, with a request that the other party comply with his undertaking, there being no change therein, is obviously not a novation.” (Emphasis added.) There is no evidence of such agreement.

31 Tex.Jur. 398, Sec. 12, the novation of a contract requires the extinguishment of the old obligation by the giving and acceptance of a new promise. There is nothing said in the new contract between Smith and King to the effect that the new contract was in lieu and in discharge of the old one. 31 Tex.Jur. 398 to 402, Secs. 12, 13 and 14. Under the question of fraud and mistake, agreements, etc., see 31 Tex.Jur. 383-407; 46 Cor.Jur. 573 to 594; 66 C.J.S. Novation §§ 1 to 15, pp. 681 to 696 ; 39 Am.Jur. 254-273. On the question of merger instead of novation, see 17 C.J.S. Contracts §§ 379 to 384, pp. 871 to 876.

Smith knew that the crane which it “proposed” to deliver for $16,691, did not meet the “specifications” contained in the contract between the Atomic Energy Commission and King, and after some efforts to get them to approve the same, it just refused to deliver the crane that would meet the “specifications”. King contacted other manufacturers relative to such a crane, but could not find one. There is no evidence in the record that any mutual agreement was made between the parties that they would forget about and supersede the oral contract, and there is no evidence on the part of either party to the effect that a novation of the original contract would be made. A novation must be according to the intention of all parties to a contract. Such intention is never presumed. 31 Tex. Jur. 394, Sec. 9; Scott v. Atchison, 36 Tex. 76; 38 Tex. 384; Cooper Grocer Company v. Strange, (Tex.Com.App.) 18 S.W.2d 609; McElwrath v. City of McGregor (Tex.Civ.App.) 58 S.W.2d 851, err. dism.; Austin v. Guaranty State Bank of Copperas Cove, et al. (Tex.Civ.App.) 300 S.W. 129, n. w. h.; Hix et al. v. Tomlinson (Tex.Civ.App.) 200 S.W. 897, n. w. h.; General Finance & Guaranty Company v. Smith, Tex.Civ.App., 309 S.W.2d 531, er. ref., n. r. e.; Chastain, et al. v. Cooper & Reed, (Tex.Civ.App.) 250 S.W.2d 652, affmd. 152 Tex. 322, 257 S.W.2d 422; 31 Tex.Jur. 395, Sec. 10, and 31 Tex.Jur. 404, Sec. 17. Appellant’s point 5 is sustained.

By its Second, Third and Fourth points of error, King takes issue with the findings of fact and conclusions of law. King takes the position that under the undisputed evidence in the case, it is entitled to judgment. Smith did rescind the oral contract of December 6, 1956, without any reason whatsoever. King takes issue with the trial court in its conclusion of law that by signing the contract it agreed to and did abandon its oral contract of December 6, 1956. King had bound itself to a contract with penalty provisions with the Atomic Energy Commission. Smith knew about the contract. Smith also knew that there was no other place that King could get a crane like the one ordered, and knew that King had to proceed with its contract, regardless, to get the job done. There is much evidence in the record about the difficulties between the parties, but nowhere in the record is the finding and conclusions of the trial court supported by the evidence, and it is not supported by the law. See authorities cited above. The points are sustained.

By its Sixth, Seventh, Eighth and Ninth points of error, King complains of the action of the trial court in holding that King agreed to and did abandon and rescind the oral contract; in holding that the oral contract of December 6, 1956, was extinguished, and that the written contract was substituted therefor; in holding that by the signing of the written agreement there was effected a novation whereby the oral contract was extinguished, and a valid and binding contract was created; and, in holding there was no consideration for the latter written agreement of King to pay Smith the sum of $30,750.00 for the crane. There is no evidence of any mutual agreement between the parties to rescind the oral contract. The new contract does not supersede the old contract. The new contract does not mention the oral contract. The mere signing of a contract dated January 8, 1957 is not of itself a novation of an oral contract of like character, except for the price of the crane. In Chastain v. Cooper & Reed, supra, Judge Cramer said:

“Novation is a mode of extinguishing one obligation by another, — a substitution, not of a new paper, but of a new obligation in lieu of an old one— the effect of which is to discharge the old obligation and the acceptance of the new obligation in its place. Each element of novation must be proven, and of course it is only where there is no doubt as to the terms of the agreement that it becomes a question of law.
“After Whiteley-Phillips agreed to accept Warren Wright in lieu of Chas-tain on the drilling contract, a written contract was to be executed by Warren Wright. It is undisputed that Whiteley-Phillips, after Marshall’s name came into the deal, knew that Marshall was to be substituted for Warren Wright, and demurred to such agreement by preparing the written drilling contract for both Chastain and Marshall to sign. Chastain then refused to sign the written drilling contract prepared for him and thereafter Whiteley-Phillips struck out the name of Chastain and executed the contract for the drilling of the well with Marshall alone. The drilling contract was dated September 20, 1948, and Marshall alone signed it with Whiteley-Phillips Drilling Company. Whiteley-Phillip's then proceeded to go forward with the drilling of that well under the written contract. Under such undisputed facts, liability of Chastain for the drilling of the well became a question of law, not a question of fact for the trier of the facts/’ (Emphasis added.) [152 Tex. 322, 250 S.W.2d 659]

In that case, the man refused to sign the other contract. In this case, if King had refused to sign the new contract he would not have received the crane, and could not have built the atomic energy plant.

The trial court found that King relied upon the quotation of $16,691, in making its bid to erect the atomic energy plant; that Smith offered to sell the crane as “specified” for $16,691, f. o. b., Muskogen, Michigan, with a delivery time of fourteen weeks; that King did not know the fair cash market value of the crane, as “specified”, to be approximately $31,000; that Smith knew that King would rely upon the quoted price in making its bid, and did not know that the crane Smith “proposed” to deliver did not meet the “specifications”. The trial court further found that “time was of the essence in the contract awarded by the Atomic Energy Commission to King Construction Company”, and King was notified to proceed at once. King promptly did proceed, and on December 6, 1956, notified Smith to get the crane as specified, fabricated and delivered, due to the time limit involved. It must be borne in mind that the crane that Smith “proposed” to deliver did not meet the “specifications” as contained in the contract with the Atomic Energy Commission. Smith did not inform King that the crane it “proposed” to deliver did not meet with the “specifications”. The offer submitted by Smith for the crane was the only offer received by King which stated that it was of the type “required by the specifications”. On December 12th, or 13th, 1956, without any legal excuse whatever, King was informed that the crane Smith “proposed” to deliver did not meet the “specifications”. Further action was taken, but suffice it to say that the trial court found that King signed the contract for the delivery of the crane by “reason of fear of economic loss”.

The writer believes that “fear of economic loss”, includes a finding of duress. In the case of Housing Authority of City of Dallas, Texas v. Hubell et al. (Tex.Civ.App.) 325 S.W.2d 880, 902, wr. ref., n. r. e. Chief Justice Dixon had this to say relative to the signing of such agreement:

“Duress is a tort. It often arises in connection with breach of contract, but it is nevertheless a tort, and it is not necessary that there should have been privity of contract between the parties as a prerequisite for such a tort action. One who sustains damage as a result of being subjected to duress may sue as plaintiff against the wrongdoer. ‘Economic coercion’, the basis of Lewis’ cause of action, is generally considered a form of duress.
“In 52 Am.Jur. 380 it is said ‘It is worthy of notice that a tort may involve acts which also constitute a breach of contract, and that the same facts will sustain either an action ex delicto or ex contractu, so that an action ex delicto will lie, notwithstanding the act complained of would also be ground for an action ex contractu. Under this rule, it has been held that accompanying every contract there is a common law duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done, and the negligent failure to observe any of these conditions is a tort, as well as a breach of contract. Under such circumstances, the general rule is that the plaintiff may elect which to pursue.’ ”
“Since the claim of Lewis was grounded on duress, he had a right to sue in a tort action as plaintiff in his own behalf.”

There is no evidence in the record of the kind of crane that Smith “proposed” to deliver to King. Smith contracted to deliver to King the crane as “specified”. King was under a contract, with penalty provisions, to build the atomic energy plant at once. There was no legal excuse or reason for Smith to refuse to deliver the crane as “specified”. If Smith underbid on the crane, it should have taken the loss voluntarily, or secured an amendment of the contract with the Atomic Energy Commission. Of course, the trial court found that the contract could not be amended. Smith created a duress upon King by its actions in refusing to deliver the crane as “specified”. Points 6, 7, 8, and 9 are sustained.

The trial court awarded the appellant an attorney’s fee in the sum of $750. The ap-pellee did not raise the point of error as to the attorney’s fee. Under the holding of the Supreme Court in Langdeau v. Bouk-night, Tex., 344 S.W.2d 435, the suit being based upon a contract, such attorney’s fees could not be allowed. The reversal of the trial court’s judgment automatically reverses the judgment for the attorney’s fee.

Under the record in this case, King was forced by duress to sign the contract dated January 8, 1957, and is not bound thereby. Under the pleadings and the evidence in the case, King is entitled to a judgment in the sum of $9,446.50 against Smith.

It is so ordered.

FANNING, J., concurs.

FANNING, Justice

(concurring).

Appellant presents 9 points on appeal wherein its contends to the effect that (1) appellant was entitled to judgment on its cross-action under the trial court’s findings, and (2) under the undisputed evidence, (3) that there was no evidence to support the trial court’s conclusion of law that appellant agreed to and did abandon and rescind the oral contract of December 6, 1956, and (4) that such conclusion of law was not supported by a preponderance of the evidence, that (5) under certain stated undisputed facts the trial court erred in not finding that appellant was not compelled by duress to enter into a new contract, that (6) under certain stated undisputed evidence the trial court erred in holding that appellee and appellant agreed to and did abandon and rescind the oral contract, that (7) under certain stated undisputed evidence the trial court erred in holding that the oral contract of December 6, 1956, was extinguished and that the written contract was substituted therefor; that (8) under certain undisputed evidence the trial court erred in holding that by the signing of the written agreement there was effected a novation whereby the oral contract was extinguished and a new valid and binding contract was created, and that (9) the parties having entered into a valid oral contract on Dec. 6, 1956, for the sale and purchase of the crane specified, for $16,691.00, there was no consideration for the later written agreement for appellant to pay appellee the sum of $30,750.00 for the crane.

Appellant in the “Conclusion and Prayer” portion of its brief has briefly stated its main contentions, and we quote in part therefrom as follows:

“•* * * In effect the court found:
“1. Smith Electric was obligated under the oral contract to deliver the crane required by the specifications for $16,691.00.
“2. Smith Electric refused to do so.
“3. King Construction Company insisted that Smith Electric deliver the crane for the price agreed upon.
“4. King Construction Company couldn’t get the crane from anyone else at any price within the time allowed.
“5. If King Construction Company had defaulted on its contract with the Atomic Energy Commission, King could have recovered of Smith Electric at least the difference between $16,691.00 and the reasonable cost incurred by King in purchasing the crane elsewhere.
“6. King Construction Company signed the new contract because it knew Smith Electric would not live up to its obligations under the oral contract.
“7. By reason of ‘fear of economic loss’ King Construction Company signed the new contract.
“From these facts the Court concluded that the written contract extinguished the oral contract and that King Construction Company agreed to abandon and rescind, the oral contract.
“Appellant submits three propositions :
“1. Under the Findings of Fact as made by the court, the court was in error in its Conclusions of Law.
“2. Bearing in mind that the burden of proving novation was on appellee, who introduced not one word of testimony in proof of one essential element —mutual consent, appellant submits that the trial court was in error in its Conclusions of Law; and
“3. The undisputed evidence, and the admissions of the appellee, showing that King Construction Co. signed the contract for the purpose of persuading Smith Electric to perform an existing obligation, there was no consideration for the new contract.”

It is my view that point 9, concerning the lack of consideration for the new contract, is especially well taken in view of the record in the case and in view of the trial court’s fact finding No. 62, reading as follows :

“62. None of the provisions in the written contract of W. M. Smith Electric Company, as finally prepared by Smith Electric and signed by the representative of King Construction Company, furnished an inducement or consideration to King Construction Company to agree to pay W. M. Smith Electric Company the difference between the price of $16,691.00, as originally agreed upon, and the new price of $30,750.00, as set out in the written agreement.”

The rule applicable to the fact situation here involved with reference to the lack of consideration for the new contract, is stated by Justice Norvell in DePuy v. Lone Star Dredging Co., Tex.Civ.App., 162 S.W. 2d 161, 165, wr. ref., w. o. m., as follows:

“Contracts for additional compensation for doing that which one is contractually obligated to do are discussed in the well considered case of Blakeslee v. Board of Water Commissioners of City of Hartford, 106 Conn. 642, 139 A. 106, 111, 55 A.L.R. 1319, wherein it is pointed out that such contracts are generally held unenforcible for the reason ‘that broadly to admit the power of a contractor to exact additional conu-pensation by refusing to continue performance would afford too many opportunities for exactions approaching very near to extortion.’ ” (Emphasis added.)

Also in this connection see the following authorities: 13 Tex.Jur.2d 203; Jones v. Risley, 91 Tex. 1, 32 S.W. 1027; Stone v. Morrison & Powers, Tex.Com.App., 298 S.W. 538; Barreda v. Craig, Thompson & Jeffries, Tex.Com.App., 222 S.W. 177.

“Business Compulsion” is a species of duress clothed in modern dress. In this connection see 17A Am.Jur. 564, Sec. 7, wherein it is stated in part as follows:

“§ 7. Doctrine of Business or Economic Compulsion. There is no doubt that the early common-law doctrine of duress has gradually expanded and broken through its original limitations, with the result that many states have adopted the modern doctrine of ‘business compulsion' or what is sometimes referred to as ‘economic duress or compulsion.’ This doctrine has been regarded by some of the courts as being different from duress, and in the sense that it is a relaxation of the early common-law rule this is true. Yet, broadly speaking, ‘business compulsion’ is a species of duress, not the common-law duress, to be sure, but duress clothed in modern dress.
“It seems to be established as a general rule, at least in this country, that the payment of money or the making of a contract may be under such circumstances of business necessity or compulsion as will render the same involuntary and entitle the party so coerced to recover the money paid, or excuse him from performing the contract.”

It is my further view that appellant signed the new contract under “business compulsion”, a species of duress clothed in modern dress, and that the new contract was not a true novation, inasmuch as the essential element of true voluntary mutual consent was lacking. In this connection see Barreda v. Craig, Thompson & Jeffries, Tex.Com.App., 222 S.W. 177, which contains an excellent discussion of a somewhat analogous matter.

Likewise as hereinbefore stated, there was no real or true consideration for the making of the new contract, and consequently there was no novation for this reason as well, as consideration is also an essential element of novation.

' It is my view that appellant was entitled to judgment on its cross-action under material fact findings made by the trial court as well as under the undisputed evidence in the cause, and that appellant’s points should be sustained.

I concur in the reversal of the judgment of the trial court and in the rendition of judgment for appellant on its cross-action against appellee.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    Charles V. BLANTON et al., Appellants, v. CITY OF HOUSTON, Texas, Appellee.
    No. 13808.
    Court of Civil Appeals of Texas. Houston.
    Oct. 19, 1961.
    Rehearing Denied Nov. 16, 1961.

      Cyril J. Smith, J. Edwin Smith, Frank ’O. Barnes, Houston, for appellants, Smith & Lehmann, Croom & Barnes, Houston, •of counsel.
    R. H. Burks, City Atty., John Gano, Sr., Asst, City Atty., Charles F. Weaver, Asst. City Atty., Houston, for appellee.
    Will Wilson, Atty. Gen., Howard W. Mays, Asst. Atty. Gen., Gibson, Spence & ■Gibson, Robert W. Spence, Austin, amici ■curiae.
   COLEMAN, Justice.

This is an appeal from a judgment of the trial court rendering a declaratory judgment, and refusing .relief by way of mandamus and injunction. All parties appearing in the trial court have properly perfected an appeal to this Court.

Appellants are the owners of certain lots located in the Sharpstown Country Club 'Terrace, a subdivision located within the former area of Harris County Water Control and Improvement District No. 24. The ■territory comprising this district was annexed by the City of Houston by Ordinance finally passed and approved on December .31, 1956, and was taken over by the City on February 20, 1957, as provided by Article 1182c-l, Vernon’s Ann.Revised Civil Statutes of Texas. Prior to the annexation an election had been duly called and held within the District which resulted in the authorization of the issuance by the District of bonds in the amount of $5,600,-000 “for the purpose of purchasing and constructing extensions and additions to the District’s water and sanitary sewer system, and for the further purpose of purchasing and constructing extensions and additions to the District’s drainage system for the drainage of lands within said District.” The District had previously issued bonds which were sold as the need arose pursuant to orders for sale passed by governing board of the District. At the time the District was annexed by the City, the District had $4,850,000 in bonds which had not been sold. On February 2, 1957, the District entered an order for the sale of the remaining bonds. Prior to the date on which the District was taken over by the City, the District secured the necessary approval for the sale of the bonds and entered into an agreement for their sale on certain conditions and the bond buyers put the purchase money in escrow pursuant to the agreement. After the District was taken over and certain litigation over the legality of the City’s Annexation Ordinance was concluded, the money derived from the sale of the bonds was delivered to and accepted by the City.

On September 14, 1960, at a time when $4,287,000 of the money remained in the hands of the City, Ordinance No. 60-1222 was passed. This ordinance contained findings that changes in conditions and circumstances over the years have resulted in the necessity for abandonment of the “original particular purposes for which such bonds were voted,” and declared such purposes abandoned. It further specified that an election would bé called under the terms of Art. 703b, V.A.T.S., at which the proposition would be submitted to the voters of the entire City as to whether or not the funds remaining should be spent for other and different purposes. Immediately after this ordinance was passed on first reading, and prior to final enactment, this suit was filed.

After the trial court had rendered his judgment on the 16th day of May, 1961, Ordinance No. 61-849 was finally passed and approved. This ordinance established a general policy applicable to the constructing, extension and connection to water, sanitary sewer and drainage facilities within the geographic boundaries of all reclamation districts formed under Section 59 of Article XVI of the Constitution of Texas, Vernon’s Ann.St., heretofore or hereafter annexed by the City, where such district at the time of the proposed development as a subdivision had funds in its construction fund account available for construction purposes. The ordinance provided that any person desiring to have water, sewer or drainage facilities constructed on land owned by him in such former district, which he proposed to develop as a subdivision, should make application to the City on forms to be provided, furnish necessary plans, maps and information and sign an agreement that the connection charges provided in the ordinance should constitute a Hen on his land. It further provided that, thereafter “in the event the City Council approves the proposed project” and finds that funds are available, the project should be duly advertised and upon the acceptance of a bid by the City Council, “the necessary ordinance will be passed awarding the contract to the successful bidder and appropriating the necessary funds therefor from the District’s Construction Fund Account * * * ” Section 4 of the ordinance provides :

“No person shall have or acquire any vested right under the provisions hereof to have constructed at the expense of the City laterals to serve land of a proposed subdivision. Whether or not City will bear the initial expense of constructing laterals under the provisions hereof shall be a matter completely within the discretion of City Council and its decision on any such matters shall be final.”

Section 9 provides that “all ordinances or parts of ordinances in conflict herewith are specifically repealed to the extent of such conflict only.”

The City now contends that this ordinance repealed Ordinance No. 60-1222. The City further made known to the court that contracts had been let and construction begun on projects which would furnish water, sewer and drainage facilities to approximately one-half of the lots appellants contend they own. The City takes the position that by reason of Ordinance No. 61-849, which they contend repealed Ordinance 60-1222 and established policy with reference to the construction of water, sewer and drainage facilities, together with the fact that contracts for construction have been let and work begun in the District, renders the issues presented by appellants on this appeal moot.

We do not agree. While it may well be true that as a matter of fact the City has abandoned its expressed intention to hold an election under the provisions of Art. 703b, supra, it still contends that Ordinance No. 60-1222 was and is valid and that this Court, in the event it finds that the case is not moot, should reverse the action of the trial court in holding the ordinance invalid. The City in its briefs and argument maintains its right to proceed under the provisions of Art. 703b, supra, though it contends that Ordinance No. 61-849 constitutes a disavowal of its intention to do so.

While Ordinance No. 61-849 is an expression of City policy, it does not bind the City to spend all or any part of the bond funds in question within the geographic boundaries oj; the District even though the application submitted meets the specific conditions set out in the ordinance. The City has not irrevocably committed itself to furnish water, sewer and drainage facilities to all of the lots owned by appellants. The policy of the City in this respect could be changed at any time by action of the City Council. The provisions of Ordinance No. 61-849 are not so inconsistent with the provisions of Ordinance No. 60-1222 as to effect its repeal in toto. It is not necessary to determine what provisions, if any, are repealed. The suit is not rendered moot by reason of Ordinance No. 61-849. Sterrett v. Bell, Tex.Civ.App., 240 S.W.2d 516.

The City further contends that appellants had no justiciable interest in the subject matter of the suit and that no justiciable controversy existed between appellants and the City. Ordinance No. 60-1222, in addition to finding as a fact that the purposes for which the District’s bonds were voted had been abandoned and had been accomplished by other means, expressly declared the abandonment of such purposes by the City and expressly declared the intention of the City to call an election under Art. 703b, Vernon’s Ann.Civ.St., for authorization to expend the balance of the bond proceeds for other and different purposes. Appellants are all engaged in the business of building residential housing. They are the owners of 522 platted lots within the bounds of the former District, which, at the time this suit was filed, were not served with water and sewer facilities. They were property taxpayers of the former District, as well as owners of property needing the facilities included within the purposes of the bond issue.

By reason of the provisions of Article 16, Sec. 59(c), The Constitution of Texas, and Article 7880-6, R.C.S. Texas, the bonded indebtedness of the District, and taxes levied to pay same, constitute a lien on property situated in the District subject to assessment for taxes. Art. 7880-6, supra, and the bond orders authorizing the issuance of the bonds, pledge the net revenues from the operation of the waterworks and sanitary sewer systems to the payment of the indebtedness, as well as providing that the bonds shall be payable from the proceeds of an ad valorem tax to be levied upon all taxable property subject to taxation within the District without limitation as to rate or amount. The fact that the District has been annexed by the City will not prevent the enforcement of the constitutional or statutory liens should such enforcement become necessary to pay the interest and maturities of the outstanding bonds. City of Decatur v. Thames Bank and Trust Co., C.C.A., Ala., 84 F.2d 105; 43 Amer.Jur., Public Securities and Obligations, §§ 273, 274. Since the tax rate which the City might be forced to levy on property in the City generally is limited, while that which might be levied on property within the former boundaries of the District is not limited, property owners within those boundaries have an interest in the development of the entire area of the District not shared by property owners in other parts of the City. A justiciable controversy arises between such property owners and the City when the City threatens to abandon the extension of water and sewer lines necessary to the development of the District as an urban area or to divert bond funds voted for the purpose of such development to other areas of the City. Black v. Strength, 112 Tex. 188, 246 S.W. 79; Moore v. Coffman, 109 Tex. 93, 200 S.W. 374 ; 43 Amer.Jur., Public Securities and Obligations, § 47.

In Lewis v. City of Fort Worth, 126 Tex. 458, 89 S.W.2d 975, 978, the court stated: “It is elementary that the proceeds of bonds voted by the people must be expended for the purposes for which they were voted.” This statement was quoted with approval in Gillham v. City of Dallas, 207 S.W.2d 978, Tex.Civ.App., and in Clark v. Greer, 232 S.W.2d 876, Tex.Civ.App. It is the rule in Texas that where specific projects to be constructed from the proceeds of a proposed bond election are designated in pre-election orders, such orders become a part of the proposition voted and control more general language found in the orders or ordinances calling the election. Black v. Strength, 112 Tex. 188, 246 S.W. 79; Gordon v. Commissioners’ Court of Jefferson County, 310 S.W.2d 761, Tex.Civ.App., ref., n. r. e.; Wright v. Allen, 257 S.W. 980 Tex.Civ.App., writ ref. Art. 7880-78 provides that before a District may hold an election for the issuance of bonds, plans and specifications for the improvements to be constructed with the proceeds shall be filed in the office of the District and open to inspection by the public. The bond order, pursuant to which the election authorizing the bonds in question was held, recited that a complete engineer’s report covering the extensions, additions and improvements to be constructed, together with maps, plats, profiles, and date explaining same, were filed in the District’s office for inspection by the public. The bonds were authorized by the voters for specific projects in a specific area and the proceeds cannot be diverted for use on different projects in different areas.

The City contends that the purposes for which the bonds were issued have been officially abandoned by City ordinance and have been abandoned in fact, and that the purposes have been accomplished by other means. Ordinance No. 60-1222 so finds and provides. Therefore, the City reasons, it is authorized by the provisions of Art. 703b, Vernon’s Ann.Civ.St., to call an election in which the qualified voters of the entire City can authorize the expenditure of the balance of these bond funds on other projects.

Art. 703b, Vernon’s Ann.Civ.St., reads as follows:

“This Act shall apply to all cities, including but not limited to, home rule cities, which have sold and delivered bonds for a specific purpose or purposes and such purpose or purposes have been accomplished by other means or have been abandoned and all or a portion of such bond proceeds remain unexpended. In such cases, the governing body of each such city shall be authorized to call and hold an election, in the same manner provided for calling and holding bond elections, for the purpose of submitting to the duly qualified resident electors of such city who own taxable property within said city and who have duly rendered the same for taxation the proposition of whether or not such unexpended funds may be expended for other and different purposes specified in the election resolution or ordinance and the election notice. If a majority of those voting at such election vote in favor of the use of such unexpended funds for such designated purpose or purposes, then the governing body of such city shall be authorized to make such expenditures.”

Since the statute authorizes such an election to be held by a city only when it has sold and delivered bonds, the election contemplated would not be authorized under its terms merely by reason of the fact that the City, by annexing the District, assumed payment of the bonds and received the proceeds of the sale. The evidence establishes that the bonds were issued by the District and sold, prior to its dissolution, subject to an escrow agreement which provided, in effect, that the purchaser could rescind unless it received an unqualified approving opinion from acceptable bond attorneys as to the legality of the bonds. This opinion was not received until after the dissolution of the District. On the 17th day of September, 1958, the City Comptroller was authorized by motion to receive for the City the “$4,850,000.00 tendered by the purchasers and present owners of Water Control and Improvement District No. 24 bonds in that amount and that he is hereby authorized to service the debt and honor the coupons.” .The funds were paid to the City by the bank which was the depositary for the District. The marketing opinion was secured by the City and furnished by it to' the purchasers from the District. By so doing the City elected to honor the contract of sale, entered into by the District, as it was authorized to do by statute. Art. 1182c-l, V.A.T.S. The record in this case does not •show a sale of these bonds by the City. The •City did not undertake to sell these bonds in the manner provided by Art. 1182c-4, V.A.T.S., which authorizes cities of over 500,000 population to issue and sell bonds of said city in an amount not exceeding the amount of voted but unissued District bonds by ordinance of the governing body ■of such city. The bonds sold do not purport to be bonds of the City of Houston. The record contains no ordinance authorizing the sale of these bonds by the City. These "bonds were not sold and delivered by the City. 43 Amer.Jur., Public Securities and Obligations, § 122. The trial court erred in Folding that Art. 703b, Vernon’s Ann.Civ. St., is applicable to bonds assumed by a city and to the proceeds of the sale of- the bonds of former Harris County Water Control and Improvement District No. 24 in the event ■the purposes for which they were voted should in fact be abandoned or accomplished by other means.

That portion of the judgment holding Ordinance No. 60-1222 void is attacked by the City. The ordinance contains a severability clause. Construing the ordinance together with the provisions of Art. 703b, Vernon’s Ann.Civ.St., referred to therein, it is obvious that .it was enacted as •a predicate for an election under the terms •of that statute. We recognize the general rule that the courts will not interfere in ■political matters by preventing or enjoining elections. However, the record does not •show that the ordinance in question is an indispensable step in the process of calling •and conducting such an election. Since the money derived from the sale of these bonds must be spent for the purposes for which they were voted, it follows that such purposes may not be abandoned by the City. 'The net revenues from the project for which the bonds were voted are pledged for payment of the bonds, therefore the amount •of such revenue would affect the amount of taxes to be levied on property owners. Appellants have a justiciable interest in preventing the abandonment of the purposes for which the bonds were issued. The evi-dence is undisputed that large areas within the former boundaries of the District had not been furnished water and sewage facilities. The finding in the ordinance that the purposes for which the bonds were voted had been accomplished by other means was contrary to undisputed physical facts and, therefore, arbitrary. Even though the City has provided a plan by which water, sewage disposal and drainage might be provided in the future, the purpose of providing such facilities cannot be considered accomplished until they are available for use. Since the declaration of abandonment contained in the ordinance is beyond the power of the City, and findings of fact contained therein are arbitrary, in view of the purpose of the ordinance, we conclude that the sev-erability clause is ineffective and the ordinance as a whole void.

Appellants complain of the action of the trial court in refusing to .issue a writ of mandamus directing and requiring the City, with due and reasonable dispatch, to expend so much of the bond proceeds as are proper and necessary to give adequate water, sewer and drainage service to the property of appellants.

“Mandamus lies to enforce the performance of a nondiscretionary act or duty. The writ will issue only when the act or duty is ministerial in character, and it is not available to control or review the action of an official or board upon matters involving the exercise of discretion or judgment.” 28 Tex.Jur., Mandamus, § 13.
“ * * * a mandamus will lie to correct a gross abuse of discretion upon the part of boards or officers intrusted with such discretion, when such abuse is so clearly shown as to establish the fact that in performing the act complained of the officers acted wholly through fraud, caprice, or by a purely arbitrary decision, and without reason.” King v. Guerra, 1 S.W.2d 373, 376, Tex.Civ.App., writ ref.
“This being a mandamus proceeding, the burden rested upon the party seeking that extraordinary relief to negative, by affirmative allegation and proof, every fact or condition which would have authorized the action of the board of commissioners in refusing to take the action now sought to be forced upon them.” King v. Guerra (on motion for rehearing), supra.

It should be noted that petitioners are not seeking by mandamus to require the City to prepare plans for and to construct improvements in the entire area of the dissolved district, nor do petitioners show that the proceeds of the bond issue in the hands of the City are sufficient to complete the projects contemplated when the bond election was held. These bonds were voted for the purpose of purchasing and constructing extensions and additions to the District’s water and sanitary sewer system and drainage system. In view of the length on time which elapsed between the election and the filing of this suit, it is quite possible that the money available for the improvements would not be sufficient for all of the additions and extensions contemplated. In this event, the City would have to determine the proportionate part of the money to be spent on each of the needed projects, as well as to determine which projects to eliminate or what modifications in the plans might be required. The evidence shows certain changes in the use of lands within the District from that contemplated at the time of the election, as well as other changed conditions, which might require the City, in the exercise of sound discretion, to make changes in the plans contemplated at the time of the election. Hudson et al. v. San Antonio Independent School District, 127 Tex. 517, 95 S.W.2d 673. The evidence shows that some funds have been expended and that certain plans for future improvements have been prepared. The trial court correctly ruled that the mandamus prayed for should not issue. Lewis v. City of Fort Worth, 126 Tex. 458, 89 S.W.2d 975, Tex.S.Ct.; City of Beaumont v. Matthew Cartwright Land and Improvement Co., 224 S.W. 589, Tex.Civ.App., writ ref.; Gillham v. City of Dallas, 207 S.W.2d 978, Tex.Civ.App., writ ref., n. r. e.

While the trial court held that the City could legally require property owners to contribute to the cost of the installation of water and sewage facilities, this holding is not necessary to a proper disposition of this suit and was not among the issues pled in the declaratory judgment action. In view of the fact that the particular requirement developed at the trial has been abandoned by the City by Ordinance No. 61-849, we do not pass upon its validity. The two ordinances- 'in question are substantially different and the validity of the present ordinance would not • necessarily be governed by a decision on the former one.

Appellants have complained of that part of the trial court’s judgment wherein he declared that the failure of the City to authorize the use of the unexpended bond funds for the voted purposes did not constitute an abuse of discretion or a gross, abuse of discretion, and is not capricious, arbitrary, unreasonable or discriminatory. The record does not establish arbitrary action or abuse of discretion on the part of the City as a matter of law. Evidence was. produced supporting the finding made by the court. Appellants did not request that an issue be submitted to the jury. The court expressly based this finding on the fact that none of appellants had made application to any officer of the City for the expenditure of such funds. Since this finding is supported by other evidence, it is not necessary to determine whether the failure to make application would be a sufficient basis for the court’s finding. There are large areas of vacant land which have no present need for water and sewage facilities. The evidence does not compel1 the conclusion that the installation of such facilities would substantially hasten the development of the entire area. Art. 7880— S4a(2), V.A.T.S., permits such districts to issue bonds in parcels “as the needs of the district may require.” The timing of the installation of these facilities is a matter of discretion and, in view of the fact that there is evidence to support the action of the City, no abuse of discretion is shown. King v. Guerra, supra.

The Points of Error brought to our attention are numerous and lengthy. They have been carefully considered and, except •as herein stated, are denied.

The trial court has included in his judgment certain findings of fact and declarations of law which are not necessary to the decision of any justiciable issue presented by the pleadings and evidence in this case. These may be found in paragraphs numbered 2, 10, 11 and 12 of such judgment. In reforming the judgment of the trial court such paragraphs will be •eliminated, and the judgment will be reformed in other respects to make it conform to the opinion of this Court.

The judgment of the trial court will be .reformed and, as reformed, affirmed.


author: NORTHCUTT, Justice.

text:
    Harold S. HANCOCK et al., Appellants, v. C. E. BRADSHAW, d/b/a National Amusement Company, Appellee.
    No. 7126.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1961.

      Harris, Anderson, Henley & Rhodes, Dallas, for appellants.
    Sessions, Sessions, Hoffman, Ackles & Looney, Dallas, for appellee.
   NORTHCUTT, Justice.

On July 8, 1958, M. C. Kesner executed a lease, as owner, of certain real property and business property located at 4823 Bryan Street, Dallas County, Texas, to one Ray Rasor as lessee. The lease was a usual business property lease and the premises were to be occupied by Rasor and used as a Supper Club for a term of five years from December 12, 1958, with an option in Rasor to renew for five more years.

On October 20, 1958, Mrs. Vera E. Norris and Ray Rasor executed an “Exclusive Concession Lease” agreement, the instrument in question in this suit, to C. E. Bradshaw, d/b/a National Amusement Company. It was described as an “Exclusive Concession Lease” and was for the purpose of allowing C. E. Bradshaw, d/b/a National Amusement Company, to place legal coin-operated machines, including cigarette machines, on the premises so described in said lease agreement, which description conformed to that in the original lease between M. C. Kesner and Ray Rasor. This “Exclusive Concession Lease” was for a term of three years from the above date with an option in C. E. Bradshaw, d/b/a National Amusement Company, to renew for three years.

On June 19, 1959, R. C. Norris, husband of Mrs. Vera E. Norris, executed another “Exclusive Concession Lease” to C. E. Bradshaw with similar terms, covering the same above mentioned property, except that the term was for three years from June 19, 1959.

On August 20, 1959, Rasor sublet the premises in question to one Jerry E. Capps and on August 26, 1959, W. E. Kline & Co., agents, executed an instrument in writing which, among other things, gave Rasor the right to sublet the premises and on August 27, 1959, Mr. and Mrs. R. C. Norris sold the furniture, fixtures, and equipment located in said premises and on the property in question to Jerry E. Capps by a Bill of Sale.

On December 24, 1959, Capps sublet the premises to Harold S. Hancock with Rasor in agreement with said subletting.

The controversy in question here commenced when Hancock wrote Bradshaw on December 13, 1960 and demanded the re-removal of the juke boxes, cigarette machines, etc. and upon Bradshaw’s refusal to do so, Hancock on December 16, 1960, unplugged these machines of Bradshaw’s and allowed the other appellants herein to enter upon these premises and place thereon and therein other coin-operated machines belonging to these other appellants in the place of and instead of those of Bradshaw.

On March 16, 1961, a petition by Bradshaw for a temporary restraining order was heard by the court, without a jury, and on March 28, 1961, the District Court of Dallas County, Texas, entered an order temporarily restraining and enjoining Harold S. Hancock, Leonard Coleman and Cigarette Vending Service of Dallas, Inc. from interfering with Bradshaw’s leasehold estate or property thereon, or committing any other act derogatory to his rights in the leasehold estate. From this order appellants have appealed. This appeal was originally taken to the Court of Civil Appeals at Dallas and transferred to this court by order of the Supreme Court.

Appellants perfected this appeal upon the following points of error:

First Point. A temporary injunction and/or temporary restraining order will not lie for the reason that there is an adequate remedy at law.
Second Point. A temporary injunction and/or temporary restraining order will not lie for the reason that there is no evidence, or in the alternative, insufficient evidence, to show irreparable harm.
Third Point. The instruments described as “Exclusive Concession Lease” do not create any leasehold estate and grant only a license or privilege not binding on subsequent sub-lessees.
Fourth Point. Appellee may not enforce his agreement by injunction or restraining order against appellant where conveyance to the latter was not made subject to the concession agreement and he had no notice of same.

Concerning appellants’ first point, of error, that a temporary injunction and/or temporary restraining order will not lie for the reason that there is an adequate1 remedy at law, we do not believe that rule i should be applied in courts administering; both law and equity as strictly as at com-j mon law where the jurisdiction is distinct. It is true, an injunction will issue when a legal remedy is inadequate. Adequate remedy at law preventing relief by injunction means a remedy which is plain and complete, and as practical and efficient to the end of justice and its prompt administration as a remedy in equity. Accordingly, an injunction should not be granted where the complainant has an adequate remedy at law. Under the record in this case, we think the pleadings and also the evidence show that the appellee had an adequate remedy at law. Injunctive relief ought not be granted unless it appears that the complainant has no adequate remedy at law for prevention or redress of wrongs and grievance of which complaint is made. If appellee has been unjustly deprived of his rights under his “Exclusive Concession Lease”, it is pleaded and shown by the evidence that his damages would be so many dollars and cents. There is nothing in this record to show the parties responsible for appellee’s damages, if any, are not able to respond in damages. The granting of an injunction in the face of an adequate remedy at law is an erroneous abuse of the courts discretionary powers. Burdette v. Bell, Tex.Civ.App., 218 S.W. 2d 904; Texas Unemployment Compensation Commission et al. v. Campbell, Wise & Wright, Inc. et al., Tex.Civ.App., 119 S.W.2d 388, writ dismissed; Jeffers v. Rondeau, Tex.Civ.App., 1 S.W.2d 380; Bichsel v. Heard, Tex.Civ.App., 328 S.W.2d 462; Sheppard v. Parr, Tex.Civ.App., 287 S.W.2d 204, writ refused N.R.E.; Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951 Supreme Court; Hill v. Brown, Tex.Com.App., 237 S.W. 252 Supreme Court; and Raine v. Searles, Tex.Civ.App., 302 S.W.2d 486.

Under our appellee’s “Exclusive Concession Lease” all that he received was a privilege to place his machines upon the property known as 4823 Bryan Street, Dallas County, Texas given to him by virtue of the acts of the lessee of the property, and was only a privilege and not a leasehold estate, and was not an interest in the land. Consequently, when the lessee transferred the lease to sub-lessee, when the sub-lessee had no knowledge of the appellee’s claim, and the lessee had the right to sub-lease the property, the transfer of the lease to the sub-lessee would revoke the “Exclusive Concession Lease” of the ap-pellee. Priddy v. Green et al., Tex.Civ. App., 220 S.W. 243; Latimer v. Hess, Tex.Civ.App., 183 S.W.2d 996, writ refused; Chicago, R. I. & G. Ry. Co. v. Johnson, Tex.Civ.App., 156 S.W. 253 writ refused; and Settegast et ux. v. Foley Bros. Dry Goods Co., 114 Tex. 452, 270 S.W. 1014.

From the foregoing it follows that we sustain appellants’ first and third points of error. We therefore reverse the judgment of the Trial Court wherein he entered an order of temporarily restraining and enjoining appellants from interfering with appellee’s leasehold estate or property thereon and dissolve the order and any writ so issued. Reversed and temporary injunction dissolved.


author: PER CURIAM.

text:
    ALLIED FINANCE COMPANY et al., Appellants, v. J. W. BUTAUD et ux., Appellees.
    No. 6494.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1961.
    Locke, Purnell, Boren, Laney & Neely, Dallas, for appellants.
    Arthur N. Bishop, Jr., Dallas, for appel-lees.
   PER CURIAM.

This is an appeal by the Allied Finance Company et al., from an order of the trial court overruling its plea of privilege to be sued in Dallas County. There is no statement of facts, and no findings of fact or conclusions of law either separately or in the order overruling the plea of privilege. In their brief appellants assert there was no evidence introduced by either party on the hearing of this plea in the trial court, and this statement is not challenged by appellees. Therefore, under Rule 419, Texas Rules of Civil Procedure, we may accept this statement as true. In addition, it may be said that counsel for appellees in the oral argument before this court stated he did not know whether there was any evidence offered, because he was not present at the time set for the hearing before the trial court. In this situation, we accept as true that no evidence was heard by the trial court.

Appellees relied upon Sections 9, 9a and 23 of Article 1995, Vernon’s Ann. Civ.St., in their controverting affidavit to sustain venue in Jefferson County. The law is well settled that where a plea of privilege is filed, a plaintiff has the burden of establishing the venue facts. Hollis v. Boone, Tex.Civ.App., 315 S.W.2d 350. The burden was on appellees as plaintiffs to make proof of such facts as would hold venue in the county where the action was brought. Harris v. Ashland Oil & Refining Co., Tex.Civ.App., 315 S.W.2d 317. They had the burden of pleading as well as proving a cause of action. Lone Star Gas Co. v. Martin Linen Supply Co., Tex.Civ.App., 301 S.W.2d 243. The authorities are all in accord, and no useful purpose would be served by further citation. Appellees having failed to make any proof, did not discharge the burden resting upon them.

The judgment of the trial court is reversed and we order this case transferred to Dallas County.


author: HYDE, Judge.

text:
    Ramona CLARK, Appellant-Respondent, v. William SIMMONS and Zuzich Truck Lines, Inc., Appellants, and White Motor Company, a Corporation, Respondent.
    No. 48408.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.

      Goldman & Goldman, St. Joseph, for appellant-respondent, Ramona Clark.
    James H. Ottman, M. Randall Vanet, Kansas City, for appellant William Simmons.
    Price Shoemaker, Elmer E. Reital, St. Joseph, for appellant Zuzich Truck Lines, Inc.
    Sebree, Shook, Hardy & Ottman, Kansas City, and Shoemaker & Reital, of counsel, for appellants.
    W. J. Sherwood, W. H. Utz, Jr., of Smith, Sherwood, Utz & Litvak, St. Joseph, for defendant-respondent, White Motor Co.
   HYDE, Judge.

Action for damages for personal injuries sustained in a collision in which the Chevrolet car in which plaintiff was riding was struck by a tractor driven by defendant William Simmons while acting as the employee of defendant Zuzich Truck Lines (hereinafter called Zuzich). Defendant White Motor Company (hereinafter called White) was the manufacturer of the tractor involved. Plaintiff had a verdict for $25,000 against Simmons and Zuzich and White had a verdict in its favor. Defendants Simmons and Zuzich have appealed from the judgment entered on the verdict against them. Plaintiff has appealed from the judgment entered on the verdict for White.

Plaintiff’s evidence showed she was riding in the car, driven by her husband, north on U. S. Highway 71 in clear, dry weather. Simmons, who had been ordered to leave his trailer in St. Joseph and bring his tractor to Kansas City, was driving south. The pavement was 20 feet wide and crossed a creek at the bottom of two hills. As plaintiff’s car came down the south hill, Simmons’ tractor was seen coming down the north hill around a curve about 500 feet away. According to plaintiff’s evidence the tractor’s speed was about 65 miles per hour (Simmons said about 50) and plaintiff’s husband was driving about 50 to 55 when he first saw the tractor. Plaintiff’s car was slowed to 10 or 15 miles per hour before the collision, which occurred on the lower part of the south hill, and it was estimated that the tractor had at that time traveled 300 feet of the 500 feet between the two cars when it came into view. Plaintiff’s evidence was that, soon after she and her hubsand saw the tractor, it went to the west side of the road and hit the shoulder, then came back east across the middle dividing line of the pavement, then went back west and hit the shoulder again and thereafter came back east across the middle line and struck the left side of plaintiff’s car when it was partly on the east shoulder. Plaintiff’s car was knocked off the highway and landed upside down in the creek. Simmons was thrown out on to the shoulder near the point of collision and his tractor went off the highway 168 feet farther south striking and lodging against some large trees.

There was a lip or gutter at the edge of the pavement where according to plaintiff the tractor hit the shoulder the second time and went a foot or more off the pavement with the right front wheel. Defendant’s testimony about this was: “I allowed the tractor to come close to the right or west edge of the road, be in my lane. And at that time I might have let it get partially, as I say split the wheels on the edge of the road. Out to the edge of the highway, the lip or edge of the road, it fought me a little bit, see; it came back to the left. I didn’t particularly worry about it; the car was quite a ways from me. But as I came to the bottom of the hill, the car got closer and I took back to the right again. And as it came back in contact with this wash or lip or gutter, it seemed to pull to the right. * * * I tried to pull it back to the left at that time, probably a little bit. Still I didn’t notice anything wrong until all at once it just jumped to the left. At that time naturally .1 tried to. puli'it 'back, to the right and that’s when I noticed the steering wheel had no resistance, went slack.” It was also shown that Simmons smoked constantly and took one hand off the steering wheel to flip a cigarette out of the window just before his right wheels first went on the shoulder. Other facts will be stated in connection with our rulings.

Instruction 1 authorized a verdict against Simmons and Zuzich (uncontroverted facts hypothesized omitted) on the following findings: “[I]f you further find that said Chevrolet automobile was on the right or east half of the Highway, if so, and if you further find that at said time and place on the occasion mentioned in evidence William Simmons was operating the White tractor southwardly on said Highway #71 toward the approaching Chevrolet automobile, and you further find that William Simmons operated said tractor so that a wheel of the tractor struck the lip on the edge of the west side of the pavement, if so, and you further find that said tractor then swerved or angled over on to the east side of the pavement and collided with the Clark automobile, if so, and you further find that said William Simmons failed to operate the White tractor on the right half of the roadway and operated same on the east side of the roadway, if so, and you further find that William Simmons in said respect thereby failed to exercise the highest degree of care in the operation of said tractor, and that in so doing he was negligent, and you further find that such negligence, if any, directly caused the collision mentioned in evidence with the Clark automobile * *

Simmons and Zuzich make three contentions, as points relied on, as follows: (1) that Instructions 1 and 2 are in irreconcilable conflict and are mutually repugnant, the proof of one disproving the other; (2) that Instruction 1 assumed negligence as a matter of law, failed to hypothesize sufficient facts to support a finding of negligence; and directed a verdict as a matter of law; (3) that plaintiff’s evidence does not support the charge of negligence submitted.

Taking these contentions in inverse order, these defendants say the only negligence submitted against them by Instruction 1 is: “[A]nd if you further find that said William Simmons failed to operate the White tractor on the right half of the roadway and operated same on the east side of the roadway.” They say plaintiff proved only that the tractor came on to the east side of the pavement and that the steering wheel went slack; and that plaintiff brought this out by calling Simmons as a witness in presenting her case, citing Reece v. Reed, Mo.Sup., 326 S.W.2d 67, 72. However, in that case, the plaintiff showed by questions and answers from a deposition of the defendant that defendant had “blacked out” before running into his car from the rear. We held that “plaintiff, having presented the positive testimony and statement of defendant that she blacked out, may not successfully contend that such evidence was contradicted or destroyed by other testimony from the same witness as to facts which might warrant vague inferences to the contrary.” Nevertheless we recognized that “a party is not bound by the unfavorable testimony of one * * * witness [es] if such testimony is contradicted.”

In this case, plaintiff’s counsel was attempting to examine Simmons as an adverse party under the rules applicable to the cross-examination of witnesses (Section 491.030 RSMo 1959, V.A.M.S.) to support his alternative theory (which as hereinafter indicated we find was not supported by substantial evidence) that the striking of the lip or gutter by the tractor due to Simmons’ negligence broke the ball stud loose from the relay lever of the tractor’s steering apparatus; and that this was the cause of the steering wheel to going slack, if it did. “When the plaintiff calls a defendant as his witness he is entitled to cross-examine him, Section 491.030, and plaintiff is not bound by his testimony unless it is the only testimony in the case on that point. Richeson v. Roebber, 349 Mo. 132, 159 S.W. 2d 658, 141 A.L.R. 1. He has the right to introduce evidence contradicting that given by the defendant.” (Frank v. Wabash R. R. Co., Mo.Sup., 295 S.W.2d 16, 22; Lay v. McGrane, Mo.Sup., 331 S.W.2d 592, 596.) We find plaintiff did have contradicting evidence. In the first place, the maneuvering operation of the tractor (shown by plaintiff’s evidence and partly corroborated by Simmons) requiring many definite turning movements of the steering wheel was substantial proof that the steering wheel was not slack before the collision. Each change in the direction of the tractor required an effective related turning of the steering wheel, or at least the jury could have so found from plaintiff’s evidence. Simmons’ testimony shows the tractor responded to his movements of the wheel at least until he got on the pavement the second time; and plaintiff’s evidence also showed that, after Simmons traveled with his right wheels on the shoulder for some distance, he got the tractor back on the pavement before coming across to the east side of the highway. The jury could reasonably believe from the physical facts shown that pulling the tractor suddenly back over the lip could cause it to jump to the left as Simmons said it did. Moreover, Simmons said he never did claim there was anything wrong with the steering mechanism and that it was not his idea; but he also said he did tell his lawyers about the wheel going slack. These inconsistencies were never explained. Furthermore, it was shown that, after the collision, the tractor struck a large tree with great force and that its left front wheel was bowed out to the left as far as it could go. (This was the wheel to which the broken part of the steering mechanism was attached.) Simmons said he purposely did not apply the brakes, although he had time to do so, because he thought it would throw the tractor out of control and because he thought he would miss the automobile. However, plaintiff’s husband, who was able to get out of his car and call an ambulance, found skid marks crossing the east side of the pavement and continuing on the shoulder. (Pictures of these skid marks were in evidence.) This was some evidence that application of the brakes affected Simmons’ control of the tractor.

Plaintiff’s alternative theory of concurring negligence which was not submitted by any instruction was that the break in the steering mechanism (actually the ball stud was pulled out of its socket in the relay lever arm) occurred when the tractor struck or went over the lip or gutter and that this was partly due to the negligence of Simmons in striking the lip and' partly to the negligence of White in its improper design and manufacture. However, we find there was no substantial evidence to support this theory because there was no substantial evidence that the ball stud was broken loose at that time. Plaintiff had an expert witness, a consulting metallurgist, who was asked if the break found after the collision “could have occurred on the wheel' of the truck in question striking either a bump or hole in the road, a culvert or a tree.” His answer was: “Such an event would cause force transmission against the wheel and against the axle, then through the assembly, so that any sort of force transmitted in that way could cause the fracture, so that the answer is yes.” However, he also said he did not know how much force would be required to pull the ball stud out of the hole in the relay lever arm; that it would require a test to determine it; and that he could not answer whether even striking a tree would cause it. Thus plaintiff’s expert did not even mention striking the lip (which incidentally was struck by the right wheel and not the left) and at most his testimony could amount to nothing more than an assurance of possibility which was not enough to make a submis-sible case on this issue. (Kimmie v. Terminal R. R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W.2d 561, 565; Hunt v. Armour & Co., 345 Mo. 677, 136 S.W.2d 312, 316, and cases cited.)

Considering these facts, we conclude that plaintiff did have evidence to support the submission that Simmons “operated” the tractor so that a wheel struck the lip on the west side of the pavement, then failed to operate it on the right half of the roadway and “operated same on the east side of the roadway” and “in said respect failed to exercise the highest degree of care” in its operation. Therefore, this third contention of these defendants cannot be sustained. This ruling really also disposes of the second contention of these defendants, which is that the facts submitted by Instruction 1 did not support a finding of negligence and assumed negligence. The issue was simple, namely whether Simmons negligently operated the tractor so that it struck the lip on the west side and then instead of keeping it on the west half of the roadway negligently operated it on to the east side or whether it went to the east side because of a sudden failure of the steering mechanism. Under these circumstances our view is thát the jury would understand what the term “operated” meant. Apparently these defendants also thought so since we note Instruction 10 given at the request of Simmons and Zuzich told the jury that plaintiff was not entitled to a verdict against them if they found that at the time and place of the collision “William Simmons was not negligent in failing to operate the White Tractor on the right half of the roadway and in operating same on the east side of the roadway.” These defendants now criticise Instruction 1 for failing to require findings that the ball stud did not break and that Simmons had the ability, with the appliances at hand, to avoid crossing on to the east side of the roadway. These were defensive matters which these defendants might have had submitted on their request but it was not necessary for Instruction 1 to include such details of negative submission. Therefore, if these defendants deemed this situation “not to have been clearly or sufficiently hypothesized” they should have offered “a clarifying or amplifying instruction.” Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, 501. Instead of doing so they requested Instruction 10 using the same language concerning the facts submitted. (See Massey v. Berlo Vending Co., Mo.Sup., 329 S.W.2d 772, 777.) Moreover, Instructions 18 and 19, given at the request of White, did submit the issue of whether or not the ball stud was broken prior to the collision. While Instruction 1 cannot be recommended as a model of clarity, we hold it was sufficient and not erroneous under the circumstances of this case.

This brings us to the first contention of Simmons and Zuzich that Instructions 1 and 2 are in irreconcilable conflict. The cases they cite are cases of inconsistent submissions on primary and humanitarian negligence, such as Elliott v. Richardson, Mo.App., 28 S.W.2d 408, 410, a slippery street case, where “the court tells the jury ⅜1 one breath that they may bring in a verdict for plaintiff if they find that defendant’s automobile could not have been stopped, [because of its speed] and in the next breath that they may return a verdict for her if they find that the opposite was true.” Another case they cite is Tunget v. Cook, Mo.App., 84 S.W.2d 970, where it was submitted as primary negligence that the defendant drove at excessive speed so that he did not have control of his car and as humanitarian negligence that he did have control and could have stopped after the peril arose. We approved this ruling in State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W.2d 1. Another case cited is Fisher v. Ozark Milk Service, 356 Mo. 95, 201 S.W. 2d 305, 309, in which we said of the instructions : “One necessarily submitted failure to stop when the driver could stop, as the proximate cause of injury, while the other submitted failure to stop when the driver could not stop because of bad brakes.” Mahan v. Baile, 358 Mo. 625, 216 S.W.2d 92, also cited by these defendants reviewed all these cases and held that under the evidence in that case, the submissions of excessive speed and failure to slacken speed and swerve after the peril arose were not irreconcilably repugnant. Clearly these cases are not in point here. Instruction 1 authorized a verdict only against Simmons and Zuzich on the findings hereinabove noted. Instruction 2 authorized a verdict only against White on findings that the ball stud broke loose from the relay lever of the steering mechanism prior to the collision as a result of negligent design or manufacture. Thus in this case the jury was authorized to find against defendants Simmons and Zuzich on a theory applicable only to them or to find against White on a theory applicable only to it and was not authorized to find against all defendants by either of these instructions. Thus there were no inconsistent theories made applicable to any of the defendants by these two instructions as was done by the primary and humanitarian submissions in the cases cited. Actually these defendants have recognized this by each saying in a separate motion for new trial, in complaining of Instruction 4 given at plaintiff’s request, that “said instructions 1 and 2 are mutually exclusive.” We fully agree that they were exclusive and thus not repugnant.

Instruction 4 was improper and no doubt would have been prejudicial error against all defendants if the jury had found against all defendants. (It authorized a verdict against all defendants without requiring any findings of facts on which such a verdict would be proper and as we have noted there was no substantial evidence to support such a verdict.) However, defendants Simmons and Zuzich do not mention Instruction 4 in their “Points Relied On” (see Rule 83.05, V.A.M.R.) and in the argument in their brief concerning their claim of error in giving Instructions 1 and 2, it is only said: “There was no instruction submitted whereby the jury could have found concurrent liability. It is submitted that Instruction No. 4 further confused the already irreconcilable conflict generated by Instructions Nos. 1 and 2.” Nevertheless, it is apparent that the jury was not confused by it because they did not find against all defendants but apparently concluded as Simmons and Zuzich did in their motions for new trial that Instructions 1 and 2 were mutually exclusive and so applied them by finding against Simmons and Zuzich only, as authorized by Instruction 1, and for White on the facts submitted by Instruction 2. Therefore, we hold that plaintiff’s judgment against Simmons and Zuzich should be affirmed.

It is also our view that the judgment in favor of White should be affirmed. Plaintiff claims error in giving Instructions 14, IS and 17 at White’s request and in sustaining an objection to a question asked Simmons when he was being examined by plaintiff’s counsel under the rules of cross-examination. 'The latter matter was not mentioned in plaintiff’s motion for new trial and, therefore, is not preserved for review. Anyhow we note that Simmons did give his answer to that question, in answering a subsequent question. Instruction 14 was a cautionary instruction telling the jury to be governed solely by the law and the evidence and not to be influenced by sympathy or prejudice. It was within the sound discretion of the court to give such a cautionary instruction (Baccalo v. Nicolosi, Mo. Sup., 332 S.W.2d 854, 859, and cases cited). Instruction 15 was a burden of proof instruction excluding surmise, guesswork and speculation similar to those approved in West v. St. Louis Public Service Co., Mo. Sup., 236 S.W.2d 308, 312, and Stephens v. St. Louis Public Service Co., Mo.Sup., 276 S.W.2d 138, 144. We consider it appropriate herein where plaintiff’s evidence made such a weak case, if any, against White. Instruction 17 was a falsus in uno, falsus in omnibus instruction but which only told the jury to consider the fact of intentional false swearing, if they found any witness had done so, in determining the credibility of the rest of the testimony of that witness. Plaintiff says “the mere fact that witnesses testify in contradiction of each other does not warrant the giving of the instruction if the circumstances are such that mistakes may exist consistently with good faith.” However, the giving of such an instruction is largely within the discretion of the trial court. (Rossomanno v. Laclede Cab Co., Mo.Sup., 328 S.W.2d 677, 680, and cases cited.) There were such conflicts, inconsistencies and discrepancies in the testimony of both the lay and expert witnesses herein that we conclude there was no abuse of discretion in giving this instruction.

Therefore the judgment is affirmed as to all parties.

All concur.


author: COIL, Commissioner.

text:
    STATE of Missouri, Appellant, v. Lester ULMER, Respondent. STATE of Missouri, Appellant, v. Verne WILDER, Respondent. STATE of Missouri, Appellant, v. Harry HUNT, Respondent. STATE of Missouri, Appellant, v. Guy ENGLISH, Respondent.
    Nos. 48638-48641.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.

      Thomas F. Eagleton, Atty. Gen., Fred E. Schoenlaub, Sp: Asst. Atty. Gen., for appellant. ■ ■
    Roy Coyne, Joplin, for respondents, Verne Wilder, Harry Hunt and Guy English.
    A. L. Shortridge, Joplin, for .respondent, Lester Ulmer.
   COIL, Commissioner.

The four above-styled cases have been consolidated on appeal. The facts and the decisive question in each are the same. We shall write this opinion as though there was one case involving one defend-, ant.

On January 10, 1960, an indictment was returned charging defendant with setting up and keeping a gambling table for the purpose of operating a dice game. On April 22, 1960, the trial court sustained defendant’s motion to quash that indictment and ordered defendant’s discharge. On June 20, 1960, an information was filed denominated in the record as “in lieu of indictment” against the same defendant purporting to charge him with the same offense as that charged in the prior indictment. Defendant moved to dismiss and quash that information on these grounds: (1) that it did not state an offense under the laws of this state; (2) that it could not be a substitute for a prior indictment because not filed before the expiration of the term of court at which the prior indictment had been quashed; and (3) that there had been no preliminary hearing upon the charge purportedly set forth in the information and, consequently, the information was invalid and the trial court had no jurisdiction to proceed with the trial.

At a hearing on the motion, the prosecuting attorney stipulated that the defendant had never had a preliminary hearing before a magistrate on the charge set forth in the information. The trial court took judicial notice of the commencement and the end of the terms of the Circuit Court of Jasper County and judicial notice of its own docket sheet.

It was the position of the prosecuting attorney that the information, filed June 20, 1960, was one filed in lieu of the original indictment -and, consequently, that no preliminary hearing was necessary prior to the filing of the information.

It appears upon the record before us that on November 23, 1960, the trial court filed a memorandum opinion in which it held that the information in question was sufficient in that as amended it sufficiently charged an offense, but that the court was without jurisdiction to proceed with the trial because it appeared that the information was not timely filed in that it was filed after the end of the term at which the preceding indictment had been quashed and, consequently, the judgment of discharge in that case had become final and no valid information “in lieu of indict-, ment” thereafter could have been filed; and further, that the information considered as an original one, i. e., not in lieu of an indictment; was invalid because no preliminary hearing had been accorded the defendant. The trial court’s conclusion was that it had no jurisdiction to proceed with the case and ordered and adjudged that the “information filed in lieu of indictment” be quashed, that the cause be dismissed, and that the defendant be discharged and “go hence hereof without day and recover his costs herein expended.”

The state purported to appeal from that judgment and has filed a brief here on the merits, contending that the expiration of the term in which an indictment is quashed does not deprive the circuit court of jurisdiction over the felony charged or of the person named once a new information or indictment has been filed; and that the purpose of a preliminary hearing is served by the return of an indictment after which the prosecuting attorney may file an information charging the same felony as that charged in the indictment.

The respondent contends first that this court is without jurisdiction to .review this case on the merits because the state could not appeal from the judgment entered. While we do not have the views of the state with respect to respondent’s contention, we, nevertheless, are of the view that it must be sustained.

Supreme Court Rule 28.04, V.A.M.R., provides:

“The state shall be entitled to take an appeal in the following cases and in no others:
“(a) when, prior to judgment, upon motion or upon the court’s own view, it is adjudged that an indictment or information is insufficient;
“(b) when a judgment is arrested or set aside.”

Section 547.210 RSMo 1959 and V.A. M.S., which Rule 28.04 was intended to supplant, is: “When any indictment or information is adjudged insufficient upon demurrer or exception, or where judgment thereon is arrested or set aside, the court in which the proceedings were had, either from its own knowledge or from information given by the prosecuting attorney that there is reasonable ground to believe that the defendant can be convicted of an offense, if properly charged, may cause the defendant to be committed or recognized to answer a new indictment or information, or if the prosecuting attorney prays an appeal to an appellate court, the' court may, in its discretion, grant an appeal.”

In State v. Pottinger, 365 Mo. 794, 287 S.W.2d 782, 784 [3], the court quoted with approval from the case of State v. Craig, 223 Mo. 201, 202, 122 S.W. 1006, as follows : “As a general rule, the State has no right to a writ of error or appeal in a criminal prosecution from a judgment in favor of a defendant whether upon a verdict of acquittal or upon the determination by the court of a question of law; unless it be expressly conferred by statute in the plainest and most unequivocal terms. 12 Cyc., p. 804; State v. Wear, 145 Mo. 162, 46 S.W. 1099.”

It seems apparent that the trial court in this case did not adjudge the information insufficient and, of course, no judgment was arrested or set aside. On the contrary, the trial court specifically ruled the information sufficient; the order quashing the information and dismissing the case and discharging the defendant was based upon the determination by the court of questions of law, viz., that the information in question properly could not have been filed as an information in lieu of indictment because filed after the end of the term at which the indictment it sought to replace was quashed, and that the information, unless one in lieu of an indictment, was invalid because no preliminary hearing had been accorded the defendant.

In State v. Beagles, 174 Mo. 624, 74 S.W. 851, at page 852, the court, in quashing and dismissing a writ of error sued out in behalf of the state, said: “But we think it is clear the circuit court did not pass upon the sufficiency of the information, but ruled simply that the first information and the one on which the defendant had been put on trial had been quashed by the filing of a new information. We think it is obvious, in view of the exclusive language of sections 2708, 2709, 2711, Rev. St. 1899, that neither an appeal nor writ of error lies from the ruling of the circuit court on the question raised; and, as our jurisdiction is appellate only, it follows that we are forbidden to review the action of the circuit court, and the writ of error is therefore quashed and dismissed.”

The appeal by the state in this instance was not authorized either by Supreme Court Rule 28.04,' supra, or Section 547.210, supra, because the judgment appealed from is not an adjudication that an indictment or information was insufficient and no judgment was arrested or set aside. It seems clear that the insufficiency of the information referred to by the legislature in Section 547.210 and restated in Rule 28.04 refers to the “insufficiency of accusation” contained in an indictment or information and does not mean an “insufficiency” implied, if at all, solely by reason of the fact that an information or indictment has been quashed or dismissed. See again State v. Pottinger, supra; and see State v. Hunter, Mo.App., 198 S.W.2d 544, 546 [4], 547 [5]; State v. Reisman, 225 Mo.App. 637, 37 S W.2d 675, 677 [3]; State v. Clipper, 142 Mo. 474, 44 S.W. 264; State v. Bollinger, 69 Mo. 577, 580.

It follows that we are without jurisdiction to review the action of the trial court, and the appeal in each of the four above-styled cases is hereby dismissed.

HOLMAN and HOUSER, CG, concur.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court.

All concur.