author: CHADICK, Chief Justice.

text:
    O. P. LEONARD, Trustee et al., Appellants, v. G. R. ABBOTT et al., Appellees.
    No. 7355.
    Court of Civil Appeals of Texas. Texarkana.
    May 1, 1962.
    Rehearing Denied June 5, 1962.

      Harris, Anderson, Henley & Rhodes, Dallas, Jenkins Garrett, and Robert Sta-hala, John McBryde, Cantey, Hanger, Johnson, Scarborough & Gooch, Leland A. Hodges, Ft. Worth, for appellants.
    McKinney & McKinney, Cooper, Fisher, McLaughlin & Harrison, Moore & Lipscomb, Paris, for appellees.
   CHADICK, Chief Justice.

This is a venue case. The trial court denied a plea of privilege. The judgment is affirmed.

G. R. Abbott and eighty other parties as plaintiffs instituted a lawsuit in a District Court of Lamar County naming O. P. Leonard, Trustee, and eight others, including Claude Hall and Hall’s Aero Spraying, Inc., as defendants. All defendants were residents of Tarrant County except Hall, a resident of the State of Arkansas, and Hall’s Aero Spraying Inc;, an Arkansas corporation, not authorized to do business in the State of Texas. Unless the context otherwise requires, reference hereafter to Hall shall include Hall’s Aeró Spraying Inc., and reference to Leonard includes the remaining defendants collectively. The suit was for damage inflicted to growing crops in Lamar County by herbicides from an aerial spraying application made to the Leonard farm in Hopkins County.

By agreement with Leonard, Hall .became obligated to and made an aerial application during May and June, 1960, of liquid hormone herbicides known as 2-4-D and 2-4-5-T to a thousand acre tract of land along the Sulphur River for the purpose of destroying noxious weeds, brush and timber. The herbicides were capable of destroying growing cotton and vetch, No permit to make aerial application was obtained as required by the Herbicide Control Act, House Bill 402, Regular Session 53rd Legislature, Chap. 349, p. 854; Art. 135b-4, Vernon’s , Ann.Texas Civ.St., nor is it contended that the statute, and .regulations promulgated thereunder, were complied with in detail.

The plaintiffs’ affidavit controverting the Leonard plea of privilege claimed the venue of the case to be in Lamar by the terms of Subdivision 9a, Art. 1995, V.A.T.R., adopted their original petition, and alleged generally that the brush poisoning operation mentioned in the petition was negligent conduct and the proximate cause of the injuries suffered by the defendants. In their petition they plead that in the performance of his work Hall sprayed or allowed the herbicide used to drift upon plaintiffs’ land and crops. In the same count the plaintiffs charged that application of the herbicide by spraying was inherently dangerous and that the act or omission alleged was the proximate cause of the plaintiffs’ injuries. The allegations of the plea of privilege will be liberally construed. 1 Tex.Civ.Practice, 447, § 4.49; Wood v. Fondren, Tex.Civ. App., 131 S.W.2d 1070, N.W.H.; General Motors Acceptance Corporation v. Boyd, Tex.Civ.App., 120 S.W.2d 484, N.W.H. The plaintiffs have, viewing their pleadings as a whole, alleged as acts or omissions constituting negligence that the defendants sprayed the herbicides upon their crops growing in Lamar County, or allowed herbicides to drift upon their crops in that county.

The evidence does not establish that Hall’s airplane making the herbicide application was in or over Lamar County during the spraying operation. On this fact the defendants in the trial court, the appellants here, take their stand that subdivision 9a, Art. 1995 can have no application to the lawsuit. The appellants point to and rely upon the clear language of ■ the subdivision saying a suit based upon any form of negligence may be brought in a county “where the act or omission of negligence occurred.” The appellants argue that since Hall’s personnel, equipment, plane, etc., were not in or over Lamar County, that it was physically impossible for a negligent act or omission in the spraying operation to have occurred in Lamar County.

At first impression the appellants’ argument appears sound. However, bearing in mind the allegation that the appellants allowed the herbicide to drift upon the ap-pellees’ land, it may readily be seen that the alleged act or omission could easily occur in Lamar County, though Hall and the equipment used was physically in Hopkins County.

Perhaps some confusion can be avoided by the use of examples. A gardener may be imagined standing with a waterhose in his hand on one side of a fence, spraying water on his garden. The gardener might spray water into a wind current and the current carry it as a mist across the fence where the water droplets would fall to the ground. The drift of such moisture would occur both on the side of the fence where the gardener stood and across it where the droplets fell. Thus the drift of mist would occur across the fence from the gardener, though he did not cross the fence himself or permit his hose to cross it. As another example, it may be imagined that a car owner might allow his driverless car to roll (drift) for some distance down a road which crossed a county line. If the act of negligence charged against him was allowing the car to roll, it is easy to see that the charged negligent act of rolling occurred in both or either of the counties.

Alleging that the herbicides were allowed to drift is a positive way of alleging a continuous negligent omission. Properly, it might be said that allowing the herbicides to drift is a component element of a broad divisible issue. However, here the phase of allowing the herbicide to drift upon the land of the appellees is charged as negligence, and issue was joined thereon by the parties and proof made. Decision on the disputed question of allowing the herbicides to drift seems proper. See Schultz v. Harless, Tex.Civ.App., 271 S.W.2d 696, N.W.H.; Vrazel v. Bieri, Tex.Civ.App., 294 S.W.2d 148, N.R.E.; Parish v. Dee, Tex.Civ.App., 327 S.W.2d 449. The trial judge presumably found the evidence to support the allegation, and that such negligence was the proximate cause of the several plaintiffs’ injuries. That Leonard and Hall owed the appellees a duty not to allow the herbicides to drift will be discussed hereafter.

The conclusion stated requires a discussion of several additional questions. Immediate attention will be directed to the absence or insufficiency of evidence to support the trial judge’s presumed factfinding upon the negligence issue discussed. The ■evidence is circumstantial. Admittedly Hall applied the herbicides in liquid form by aerial spraying. There is evidence that an application was made when the wind was blowing from ten to fifteen miles ■an hour. The direction of the wind was from the 'Leonard farm towards the land where the appellees had their crops. Growing cotton plants and some other plants react in a peculiar and recognizable way to the herbicides that Hall used. Foliage on cotton and other plants was •damaged on a swath beginning at the Leonard farm and extending to and across the appellees’ lands. Hall’s was the only ■aerial application of a hormone herbicide made in the affected area during the period of time involved. These facts and the inference arising from them are sufficient to support the trial judge’s presumed finding that the appellants allowed the herbicide to drift upon the lands and crops of appellees.

It is conceded by all parties that Hall was an independent contractor. In Pitchfork Land and Cattle Company v. King, Tex.Civ.App., 346 S.W.2d 598, the Supreme Court exonerated the landowner •of liability because the aerial application •of a herbicide inflicting damage upon the land of other owners was made by his independent contractor. The Pitchfork case .arose in a county excluded from the operation of the Herbicide Control Act; Art. 135b^l, the law regulating the sale and use of hormone herbicides. The opinions of the Supreme Court and the Court of Civil Appeals in that case do not mention or indicate that questions of the inherently dangerous nature of aerial application of hormone herbicides or the non-delegability •of the employer’s duty were considered. '.Because it appears such issues were not before the courts the case does not control here.

In the Herbicide Control Act the Legislature by implication declared the use and application of such herbicides to be inherently dangerous in the areas of the state not excluded from the Control Act’s provisions. The declared purpose of the law is to invoke the police powers of the State to regulate the sale, use and transportation of hormone herbicides such as those used in this case. It authorizes the Agriculture Commissioner to promulgate rules and regulations in that respect. Sec. 5(c) of the Act provides “When the facts indicate that any type of application does not create a hazard in any particular area, the Commissioner shall exempt * * * such area * * This subdivision clearly implies that the Legislature deems the unregulated application of hormone herbicides to be hazardous to beneficial crops and plants in the areas of the state to which it applies, but gives latitude for a determination to the contrary in areas where the facts justify a different conclusion. Then there are other provisions of the Act evidencing this implied determination by the Legislature. The implication is found in the provisions of the Act making it unlawful for any person to be a dealer in herbicides without first obtaining a permit; and making it unlawful to apply herbicides except in compliance with the act and promulgated rules and regulations and under supervision of the employer and independent contractor.

The evidence in this record is clear that neither Leonard nor Hall obtained a permit to make aerial application of the herbicide, and that numerous requirements of the Herbicide Control Act, and regulations thereunder, were not complied with. In II Restatement of the Law of Torts, 1149, Sec. 428, it is said:

“An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for bodily harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.”

The principle of the quoted rule should have application in this case, and should be adopted and applied to property and property rights.

Aside from the legislative findings and enactment the courts of this state have always held the employer liable for injuries caused by an independent contractor’s negligence in the performance of inherently dangerous work. See Independent Contractors, 30 T.J.(2) 516, Sec. 28. The facts in this case show that a very light application of the hormone herbicides used by Hall was capable of destroying certain species of plant life and has a very adverse effect upon growing cotton. It was known to Hall and Leonard that cotton and vetch crops, susceptible to damage by the herbicides employed, were planted in the vicinity of the land Leonard proposed to treat, and that herbicides used would have a deleterious effect on such crops if it reached them.

The text quoted above, II Restatement of the Law of Torts, 1148, Sec. 427, Comment “a”, gives this definition of an intrinsically dangerous activity:

“The words 'inherently dangerous work’ are used to indicate * * * that the nature of the work itself, or of the instrumentalities which must necessarily be used in doing it, * *, if unskillfully and carelessly done [or used], involves a grave risk of serious bodily harm or death.” (bracketed words inserted).

While the definition refers to serious bodily harm or death, the same principle expressed should govern work that involves a grave risk of injury to property and property rights.

The aerial application of herbicide, if unskillfully and carelessly done, involves such grave risk of injury to the growing crops in the vicinity of the spraying that the employer should not escape liability when the work is negligently done by an independent contractor. Courts of other jurisdiction have held that aerial spraying and dusting of chemical defoliants, insecticides, and herbicides are activities having such potential for injury as to be classed as inherently dangerous. See Loe v. Lenhardt, 227 Or. 242, 362 P.2d 312, where it is said: “The authorities are practically uniform in holding that crop dusting is an activity sufficiently freighted with danger to impose liability upon the landowner having the work done if negligence is proven, even though the fault, if any, is that of an independent contractor.” See also Mc-Kennon v. Jones, 219 Ark. 671, 244 S.W.2d 138; Heeb v. Prysock, 219 Ark. 899, 245 S.W.2d 577; S. A. Gerrard Co. Inc. v. Fricker, 42 Ariz. 503, 27 P.2d 678. Each of the cited cases have applied the non-delegability rule, though liability was founded upon trespass or other basis than negligence.

The evidence supports the trial judge’s implied conclusion that Leonard owed the appellees a non-delegable duty not to allow the herbicide sprayed by Hall to drift upon and damage their crops. As previously stated, allowing such herbicides to drift in Lamar County was found by the trial court to be negligence, and the finding is supported by the evidence.

Hall did not appeal from the trial court judgment. Appellee Leonard’s several points of error are overruled and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: FRASER, Justice.

license: Public Domain

text:
    EL PASO COUNTY, Appellant, v. The CITY OF EL PASO, Appellee.
    No. 5568.
    Court of Civil Appeals of Texas. El Paso.
    May 16, 1962.
    Jack Fant, County Atty., Edward C. Hughes, Asst. County Atty., El Paso, for appellant.

      Travis White, City Atty., Robert J. Gal-van, Asst. City Atty., John C. Ross, Jr. Asst. City Atty., El Paso, for appellee.
   FRASER, Justice.

This is a suit by the City of El Paso against El Paso County for declaratory judgment seeking to determine if a transfer of title to 1.6737 acres of land, from the County to the City, is valid and effective. Trial was to the court and judgment rendered for the City.

The actual transfer was from the County back to the Federal government, the original grantor, and the government then deeded the land in question to the City of El Paso. The situation arose by virtue of the City’s alleged need for more facilities and ■a site for the construction of a school for the training of City firemen and the operation of a water tower. Initial negotiations contemplated a lease from the County to the City, but because the land involved was a part of a parcel of land deeded to the County by the United States, and because the deed contained a restrictive covenant to the effect that it should be used for park purposes only, it was deemed inadvisable to attempt the execution of a lease. The record shows that both parties were willing to execute said lease, but legal authorities determined that such was not practicable. Thereafter, the County Commissioners of El Paso County, subsequent to an agreement between the City and the United States authorities, passed an order ordering the parcel involved to be re-conveyed to the United States government, so such government could in turn deed it over to the City of El Paso for the purposes of erecting a training tower for firemen, and the order recites it will reduce the fire insurance rate in El Paso. Pursuant to said order of January 11, 1960, the County Judge did, on behalf of the County, execute a special warranty deed, dated January 13, 1960, conveying this parcel from the County to the United States of America. Then the United States Commissioner, on behalf of the United States government did, on January IS, 1960, deed the aforesaid parcel to the City of El Paso; whereupon the City had plans and specifications drawn and made preparations to construct said fire station and training tower.

After all this had been done, the County attempted to repudiate the transaction, stating that it had been importuned by some tax payers and park users so to do. The tract in question lies along and abuts on Ascarate Lake, which is part of a County-maintained park. Hence this law-suit.

The County-defendant has filed six points of error, which are discussed together, alleging generally that the County’s act in deeding this land to the Federal government for conveyance to the City was ultra vires, i. e., without authority, because the County Judge did not have adequate or sufficient authority from the Commissioners’ Court; that there is no evidence that the County had abandoned this parcel or the tract of which it was a parcel; that the County Judge did not comply with Article 1577, Vernon’s Ann.Tex.Civ.St, which provides for sale of County land at public auction ; that the County and the County Judge-were without authority to either convey this, land or agree to do so in the manner they did, and that the plaintiff’s petition failed to. allege that any resolution granting such authority or attesting to any agreement was. ever passed by the Commissioners’ Court,, and that the Commissioners’ Court never authorized the County Judge to act as its. agent to execute any agreement. Defendant alleges that there was never any attempted condemnation by the City and never any abandonment of the tract by the County. The defendant County seems to. rely pretty heavily on the position that the statutes relative to the conveyance or disposal of County land were not followed in. this particular instance, and their well-prepared and well-argued brief points out that the County can convey its property-only by strict adherence to the statutes appertaining thereto.

This case was tried, to the court without a jury, and there are no findings of fact in the record. Therefore, it must be presumed that the trial court found all disputed fact issues in favor of the plaintiff or petitioner. Therefore, we will not discuss hereinafter whether or not the City needed the site, whether or not it was of paramount importance, and whether or not the City had made adequate investigation and findings as to the necessity of the site being located on this particular parcel; and we will proceed on the theory that such fact issues favorable to the petitioner’s position must be considered as found in favor of the winning party in a case like this, where there is no request for findings of fact in a case tried by the court without a jury, and there being evidence to support same.

Ordinarily there could be no doubt that the County, like any other political subdivision of the State, could dispose of its real estate only in strict adherence to the pertinent statutes. Here, however, the City has cited two cases that appear to be an exception to this rule. These cases are City of Tyler v. Smith County, 151 Tex. 80, 246 S.W.2d 601 (S.Ct.), and Kingsville Ind. School Dist. v. Crenshaw, Tex.Civ.App., 164 S.W.2d 49 (dis’m. cor. judg.). In the Tyler case it appears that there was a large public square in the city which was owned by the county, bounded by four city streets, with a county courthouse in the center of said square. The rest of the area (square) had been used and devoted to public uses for over a century, having been used as a market place, for meetings, etc., and at the time of the lawsuit had been beautified and was being maintained by the county as a courthouse lawn and, as the court said, used by the public as a “place of enjoyment and rest * * * to enjoy the roses, shrubbery and various landscaping that has been put there.” The County had in mind moving the courthouse and then selling the square for private use. The city wished to run a 90-foot street through the square in order 'to connect two parts of a thoroughfare called Broadway, which thoroughfare was broken by the square. There was objection and an eventual lawsuit. The Supreme Court held that the county owned the property in fee simple, with the city having no rights in the square except its street easements along the sides, and while the county had the right to remove the courthouse, the entire square was impressed with a public use and therefore could not be diverted to private use or sold to private agencies or persons. On motion for rehearing, parties asked the court if its opinion meant that the city could never connect its highway by running a street through the square. The court answered pointing out that such was not the meaning of its original opinion, but that the City of Tyler (like El Paso), being a home-rule city, had the right of condemnation, and in that right was contained the right to condemn public as well as private property. We should like to mention, in passing, that such right has long been recognized, to-wit, one political subdivision (having power of eminent domain) can condemn the land of another, the decision resting, of course, on the paramount use and the best interests of the public. The Supreme Court then went on to say:

“If counsel will refer to Kingsville Independent School District v. Cren-shaw, Tex.Civ.App., 164 S.W.2d 49, (error dismissed, cor. judgt.) they will find how the desired result may be accomplished even without resort to condemnation proceedings.”

It will immediately be obvious that these last six or so words are very important, because it is a direct statement by the Supreme Court of Texas that the transfer of land from one political subdivision to another can be accomplished without resorting to condemnation. We now examine the Kingsville case and find that the situation here was as follows: Some years back, an area known as Chamberlain Park had been conveyed to the City with the following restriction: “Upon condition that the land shall be used as a public park for the pleasure and benefit of the people of the town of Kingsville and shall be maintained as such by the City, and that no buildings shall be erected thereon with the exception of a bandstand for free musical concerts, and that upon violation thereof the title shall revert.” The Kingsville Independent School District wanted this park for a school site. After certain negotiation, the city conveyed the park .to the school district, the owner of the reversionary interest having waived its rights. This transfer was contested by people who owned property along the park; they alleged that the park had been continually used by pedestrians crossing it. In this case the court of civil appeals, after pointing out that the school district had the power of eminent domain or condemnation, mentioned that the appellees asserted that this park, having already been devoted to public use, could not be taken for another public use unless it was impossible to exercise the new public use by any other means. The court then said:

“In view of the fact that this park is shown to be by far the most satisfactory ground upon which to build the new school buildings, and that great inconvenience would arise if they were built elsewhere, the requirements of the law in this respect are fully met.”

(We believe the same situation exists here, as there is evidence by City and fire department officials that this parcel is the only usable or practical property site available for this particular purpose and the planned installations, and that such are necessary for development of the fire department and reduction of fire rates. There is evidence to support these facts and we must assume that they were found favorable to appellee by the very nature of the judgment rendered by the trial court.) The court further said :

“The School Board, vested by law with the power to act for the public school interest, has determined that the Chamberlain Park property was necessary and that it was not practical or possible (within the meaning of such terms by the courts), to use any other property. The City, acting through its Mayor and Commissioners, has decided that the Park would be serving a better public use if abandoned as a park and converted to school purposes. Under such circumstances there is no occasion to litigate the question as to the paramount public use of the property. * * * Applying the same rule here, if the City and the School District can agree upon the paramount public use of the property, why should they be compelled to institute condemnation proceedings ?”

These cases point out that one political subdivision having the power of eminent domain can condemn property belonging to another equally empowered subdivision, such as a county. The Supreme Court’s written opinion on motion for rehearing holds that condemnation is not essential or necessary, citing the Kingsville case, which case specifically held that the parties having condemnation rights could take each other’s property by proving a paramount use of the proposed property; but, more important, further held that the two political subdivisions did not have to resort to condemnation if they could agree otherwise. In neither opinion does the Supreme Court or the court of civil appeals mention or refer to the necessity of complying with Article 1577 or Article 6078a of the Texas statutes. We think this is probably true because Article 1577, requiring the county to sell its property at public auction, apparently did not — in the opinion of the Supreme Court— apply to the proposed sale or transfer to another political subdivision that would use the property for public use or benefit. It is difficult to comprehend why either the Legislature, through Article 1577, or any court, would require the county to sell land at public auction when such land is impressed with a public use or trust. Who would buy it? It is difficult to imagine why any private agency would want land impressed with a public trust or use; and in any event the Supreme Court held in the Tyler case that because the land was impressed with a public use, it could not be sold to private persons or diverted to private use. So why require a public auction? Also, the Supreme Court apparently does not consider it necessary that the property be abandoned and Article 6078a complied with under the circumstances present in the Tyler and Kingsville cases. In the case before us the land was deeded for public use, to-wit, park purposes. This was in 1937, and after a park tax election the tract Has, for many years, been used by the public for fishing, boating, picknicking and general recreation. So we have land restricted to public use by deed and used by the public for many years, and so impressed with a public use.

We believe these cases and the language of the Supreme Court therein control the present situation. We have here land owned in fee by the County and restricted to public use and used by the public; such land being desired by a home rule City for public use different from its former public use; we have a city with the power of eminent domain and condemnation, and in neither the case here present nor the Tyler case had the property been abandoned (as evidenced by the language of the Tyler decision, pointing out that the property was cultivated and beautified for the pleasure of the using public), and the facts here present showing this tract to be in use. Article 1577 requires the appointment of a commissioner to sell county land at public auction, but it is obvious that this statute could not be complied with in either the Tyler case or this case, because the land was impressed with a trust and public use, and could not otherwise be employed; and this is likely one of the reasons why the Supreme Court did not mention this article or suggest that it had to be complied with. This article was in effect at the time the Tyler and Kingsville opinions were written, and for a long time prior thereto. It must be remembered that the Kingsville case, where the court said the result could be accomplished by agreement, was approved by the refusal of a writ, and then later specifically and directly referred to and given judicial adoption by the Court’s language in the Tyler case. We feel that these cases are controlling because of the factual background in the matter before us.

Defendant-appellant has thoroughly briefed and discussed the case of Zachry v. City of San Antonio, 157 Tex. 551, 305 S.W.2d 558, and calls our attention to the fact that this case by the Texas Supreme Court does not discuss or rely on the Tyler or Kingsville cases. However, this was a case of the City of San Antonio attempting to lease part of the subsoil of one of its parks to a private individual. For that reason we do not believe the Zachry case to be in point.

We think the statutes hereinabove referred to do apply wherever a political subdivision, subject to such statutes, desires to dispose of any of its public land to an individual or private agency, but not where such political subdivision with the power of eminent domain and condemnation chooses to deal with its opposite number and reach an agreement as to the change of public use, rather than to resort to the expensive and tedious medium of litigating the entire matter through the courts, thereby holding up the public benefit and depleting to some extent the tax funds of the subdivisions involved.

We do not find, as defendant alleges in his brief, that it is necessary to either institute or threaten condemnation proceedings, nor can we see any reason for such. In the case before us, the record shows that various City officials presented pertinent information to the County, and, as a result, the County Commissioners prepared an order ordering the County Judge to convey the land to the Federal government so it could be in turn conveyed to the City. We think this is agreement enough to satisfy the language and holdings of the Tyler and Kingsville cases. The City, according to the record, certainly wanted the parcel, and further stated, both to the Commissioners’ Court and in the present lawsuit, why they wanted it and why this was the only good available site. The County Commissioners apparently agreed with and believed their representations, because they first passed a unanimous resolution to lease, and then passed the unanimous order to deed. We think these elements, along with the other negotiations, comprised an agreement as indicated in the Kingsville case and referred to in the Tyler case, and we do not think defendant’s objections thereto have sufficient merit to require reversal of the trial court’s decision. We find no requirement anywhere in these two cited cases providing a definite format for a transaction such as this, but we do believe in the case before us that substantial compliance with the provisions and holdings of these cases has been accomplished. Defendant maintains, but we cannot agree, that condemnation must have either been begun or threatened. We think that the Supreme Court in the Tyler case, by referring definitely to the Kings-ville case, said in plain and unmistakable terms — You can trade land or convey land without having to condemn or threaten to condemn- — the important thing being that the agencies involved have the authority to condemn, and not that they have begun or threatened to begin condemnation; and certainly it has always been the object of deliberate jurisprudence to make it possible, whenever advisable, for parties to avoid litigation.

Nor do we find sufficient authority for the defendant’s statement that the property had to be abandoned. In the Tyler and Kings-ville cases neither tract had been abandoned. In the Tyler case it had been converted to grass, shrubs and flowers, and in the Kingsville case the court itself said: “The City for a number of years maintained the property by planting grass[, lawn] thereon and shrubs and preserved the trees thereon. * * * ” There was no evidence of abandonment of the courthouse square in the Tyler case, and it is the Tyler case that was decided by the Supreme Court, and in which the Supreme Court definitely referred to the method enunciated in the Kingsville case. Appellee here points out, too, that if it was necessary to resort to Article 6078a — to-wit, abandon the park — it would be impossible to convert a park use to some other use because, having abandoned it as a park, there would no longer be any park.

We again discuss, briefly, the argument of defendant that there was no “agreement” in the matter before us. It will be noted in the Kingsville case that the language of the court points out that the negotiations resulted in the City of Kingsville conveying the park to the School District. That seems to be on all fours with the situation here present. The court further said: “Thus the necessity for condemnation proceedings was averted, as all had been accomplished by agreement (i. e., voluntary conveyance) that could have been accomplished by a condemnation proceeding's.” (Parentheses ours). Also, “Applying the same rule here, if the City and the School District can agree upon the paramount public use of the property, why should they be compelled to institute condemnation proceedings?” We think, here, that the evidence is clear that the City and the County originally agreed on this transaction, as evidenced by the Commissioners’ order and the Judge’s deed, in response to the City’s request for same, and that such agreement resulted in the conveyance by the County to the Federal government with the understanding that the Federal government would re-convey without restriction to the City. There is no dispute as to the benefits to the County as well as to the City from reduced fire rates; but in any event this is only a part of the general picture which indicates that the County was convinced that it was to the best interests of the public to convey this small tract of land to the City. The County had originally received over 352 acres in this tract from the Federal government and, as the record shows, was apparently willing to cooperate in every way and go forward with the steps necessary to enable the City to bring its fire department up to date at the time the deeds -were made, and it was not until a year later -that the County determined to attempt to repudiate its transaction. The appellee points out that the record is rather deficient as to why the County decided to repudiate this transaction, and alleges in its brief that there are two affidavits (from citizens) dated long after the County determined to repudiate, and appellee urges that there is nothing to show that any complaints were made before the County so acted, or had .anything to do with such repudiation. Nor is there any allegation or evidence that the County was. misled, deceived, or defrauded. We believe the record, generally, substantiates this assertion.

Appellee states that the County waited a year before it attempted to repudiate the transaction, during which time the City went forward with its plans, paying out money and incurring obligations. The •City urges that such estops the County from now challenging any irregularities, and cites authority to that effect, to-wit, 20 C.J.S. Counties § 1197; Boydston v. Rockwall County, 86 Tex. 234, 24 S.W. 272, etc. We are inclined to think this point is probably well taken; that, while estoppel cannot be used to create a new power or enlarge one already in existence, it may be employed to defend against mere irregularities in the doing of thing in controversy -where the power was present to do so.

In conclusion, we are convinced that the Supreme Court meant just what it said in the Tyler case and in its written opinion on the motion for rehearing, where it adopted and absorbed the Kingsville case. This being true, such is a clear enunciation by the highest court of our state that the thing done here can be legally done. We do not find any material variance between this and the Kingsville or Tyler situations, as they both seem substantially similar to the matter now before the court. Therefore we believe the Tyler case is a clear enunciation and mandate of the method available in this type of situation. We further believe that not only are the necessary facts supported by evidence, but they have, by inference, been found by the trial court favorable to his judgment. We also believe that substantial compliance with the doctrine, law and method of the Tyler and Kingsville cases is here present, as evidenced by what we believe to be a definite, deliberate, contemplated and executed agreement between the City and the County, resulting in the conveyances above described. We therefore hold that the transaction was not ultra vires, but was, as the trial court held, after negotiation legally consummated.

Appellant’s points are accordingly overruled, and the judgment of the trial court affirmed.


author: BELL, Chief Justice.

text:
    HARRIS COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 58 et al., Appellants, v. The CITY OF HOUSTON, Appellee.
    No. 13681.
    Court of Civil Appeals of Texas. Houston.
    May 17, 1962.
    Rehearing Denied June 7, 1962.

      Bur ford, Ryburn & Ford, Clarence A. Guittard, H. Sam Davis, Jr., Dallas, for appellants.
    R. H. Burks, City Atty., John Gano, Senior Asst. City Atty., Charles F. Weaver, Asst. City Atty., Houston, for appel-lee.
   BELL, Chief Justice.

This case originated when Harris County Water Control and Improvement District No. SB, herein called District, filed suit against the City of Houston, herein called City, asking for a declaratory judgment declaring the City had no jurisdiction to regulate the rates it charged the customers in the City that it served with water. Suit was filed July 22, 1959. On August 12, 19S9, the City filed its formal answer. On January 29, 1960, the City filed its amended answer and cross-action. By its cross-action it brought in Lone Star Water Company as a party cross-defendant. At trial in September, 1960, appellants filed two trial amendments. The City asserted jurisdiction over rates to be charged by the District and asked for an injunction restraining the District from charging rates in excess of those fixed by an ordinance of the City. The City also contended that in fact the water system belonged not to the District but to Lone Star Water Company. The District and the Water Company attacked the rates as fixed as being invalid, not only because of a want of jurisdiction in the City to fix rates charged by the District, to which they contend the water system belongs, but also because procedural due process was denied it in connection with an alleged rate hearing that led to the passing of the rate ordinance.

The trial court found it unnecessary to pass on the questions as to whether the District or the Lone Star Water Company owned the system or whether it was lawful for the District to operate a water system outside of its established limits through a completely physically autonomous system. However, that court found the City had jurisdiction to fix the rates charged by the District for water sold in the City under the circumstances of this particular case. The court enjoined the District from charging rates in excess of those fixed by the City Council of the City of Houston.

We are of the view, as was the trial court, that it is unnecessary to pass on the questions as to whether the water system belongs to the District or the Water Company, or whether it is lawful for the District to operate the system under the facts shown, because we are of the view that assuming the system belongs to the District, and assuming its ownership and operation is ultra vires and subject to being terminated in an action brought by the State of Texas, the City, under the facts of this case, has jurisdiction to fix rates charged by the District.

We think the two questions that are determinative of this appeal are:

1. Does the City have jurisdiction to fix water rates to be charged by the District to customers served by its system in the City under the facts of this case?

2. Was the District denied procedural due process in connection with the passage of the ordinance fixing its maximum rates?

The District is a water control and improvement district organized pursuant to Article 16, Section 59, of the Constitution of Texas, Vernon’s Ann.St., and Articles 7880-1 to 7880-147z, Vernon’s Annotated Texas Statutes. It was created after the filing of a petition with the Board of Water Engineers of Texas on December 15, 1955. The original limits of the District encompassed about 181 acres of land. Its limits were extended thereafter so that at the time material here it encompassed some 704 acres of land. The District was formed by W. D. Laird, Ernest Gates, Leland Baker and Edwin Young. They were also stockholders in Goose Creek Development Company. The land within the District was largely undeveloped but was being developed as residential property. It lies near Baytown (formerly Goose Creek) in eastern Harris County. The water system involved in this case lies in the City of Houston and is some 22 miles from the limits of the District. Physically it has no connection whatsoever with any water facility operated by the District for service of property or customers within the District.' -

■ It appears that for years prior to 1952. the Texas Water Company operated systems for the distribution of water for municipal purposes at various points in Texas and other states. One such system was the one referred to here and in our record as the “North Houston” system. It originally lay outside the corporate limits of the City of Houston. In 1956, as we will later more particularly note, part of the system was brought within the corporatd limits. It is the fixing of rates for customers served from such part that is here involved. In 1952 the Texas Water Company was dissolved and ownership of the system vested in the stockholders, Mc-Arthur, Henrickson and Alexander. Ownership of the system continued thus until 1956. It is unnecessary for us, for purposes of this appeal, to go into the details of how ownership of the system finally came to the District. It suffices to say that we are assuming that ownership vested in the District on December 28, 1956, subject to a mortgage lien on the system securing a note for $1,250,000.00 payable to Mc-Arthur, Henrickson and Alexander. On February 1, 1956, at a time the “North Houston” system was owned by the above named individuals, the City passed on first reading an annexation ordinance which encompassed much of the territory served by the “North Houston” system. The territory to be annexed was changed from time to time between the passage on first vote on the ordinance and its final passage on December 31, 1956, but there was no change in the area involving the “North Houston” system.

After annexation and about October,. 1958, attorneys for the District and representatives of the City commenced negotiations for the purchase of the system by the City. When the negotiations commenced Mr. Beadle of the City Attorney’s office-requested certain data so the City could ascertain the value of the property. Present also were Mr. Nagle of the City Water Department and Mr. Owsley who handles-utility rate matters for the City. Thereafter the District representatives furnished a balance sheet as of December, 1958, water rates in effect, total number of connections as of December, 1958, potential connections at vacant lots and a map of the area supplied. Later, in early 1959, the District furnished the City a map with a legend describing the mains, a schematic drawing of the two production plants and an inventory of physical properties comprising the water system broken down by years of installation and the size and material of the lines. Further it furnished a schedule of water sold by the month for the year ending October 31, 1958, a summary of bills issued active customers for this period, a schedule of actual sales during the period and the sales pro forma on a basis of 3429 customers and for 5170 customers on a basis of complete saturation development of the area. The depth the lines were buried was furnished. No statement of operating expenses was furnished.

While negotiations for purchase were in progress, the City Council on May 12, 1959 passed a resolution directing that the District be notified to appear before the City Council June 22 to show cause why it should not submit itself to a rate hearing for the purpose of determining what rate reduction, if any, should be made. The City Council appointed an Examiner to conduct the hearing. The District, through counsel, appeared and challenged the jurisdiction of the City to regulate its rates because it was a political subdivision of the State of Texas carrying on a governmental function and its board of directors had by law been given authority to fix water rates to be charged by it. Further the District contended the notice was not of a hearing to be held, but was merely notice to the District to show cause why a hearing should not be held. The hearing was recessed and the Examiner recommended to the City Council that the plea to the jurisdiction be overruled. June 23 the Council passed an ordinance finding it had jurisdiction and directing the Examiner to proceed with the hearing. A rate hearing was then called for July 13, 1959. The District, through counsel, appeared and challenged jurisdiction. A subpoena duces tecum had been issued and served on Ernest M. Gates, Secretary of the District, commanding him to appear with certain designated books and records of the District. Mr. Gates did not respond to the subpoena. The records were not produced and the District refused to produce the records until a court should determine the City Council had jurisdiction and until a court should order production of the records. The hearing was commenced and the Assistant City Attorney introduced the motion of May 12, 1959 directing that the District show cause on June 22 why it should not submit to a rate hearing, a letter from the City Secretary sending a certified copy of the motion to the District, the motion passed by the Council ordering issuance of the subpoena duces tecum, a copy of the subpoena issued and the officer’s return showing service. Then a general offer of all action taken by the City Council relating to the calling of a rate hearing was made. The hearing was then recessed until July 24. When the hearing was resumed the City introduced, over the District’s objection, a letter from Mr. Owsley, its rate expert. On July 23 the City had sent the attorney for the District a copy of the letter. The transmittal letter informed the District that on July 24 the City would file Mr. Owsley’s letter with the Examiner and would make no further presentation but would rest. The transmittal letter confirmed a telephone conversation between counsel for the City and the District. It also stated Mr. Owsley would be available for cross-examination and the District could introduce any evidence it wished. The District did not cross-examine Mr. Owsley or introduce any evidence bearing on the value of its property or concerning what it considered would be reasonable rates. It continued to challenge the City’s jurisdiction.

The letter of Mr. Owsley was dated July 23, 1959, and was addressed to the Mayor and City Council via the Examiner. It is lengthy and we will not quote it, but will summarize its material contents. It noted that the District served some 3200 consumers in the City. The letter gives an extensive review of the City’s efforts to obtain from the District the books, etc. for examination by the City. It points out the refusal of the District to furnish desired information. It overlooks the fact that the District had furnished the information we have above noted. Too, the letter notes that at the hearing on July 13, the attorneys for the District appeared and refused to put on evidence and refused to produce the witness or make available its books and records that had been subpoenaed. Then follows these two concluding paragraphs:

“Since Water District No. 58 is an agency engaged in the distribution and sale of water within the city limits of Houston, we see no reason why it should attempt to discriminate against approximately 3200 Houston families by charging a higher water rate than the City of Houston charges. We therefore recommend that the City Council fix the City of Houston water rates, including bimonthly billing to be the rates to be charged by Harris County Water Control and Improvement District No. 58 to its customers within the City of Houston.
“It should be understood that, if the City of Houston water rates are not adequate for Harris County Water Control and Improvement District No. 58, then it is encumbent upon said District to come forward in this hearing with competent and adequate proof from its books and records to establish to what extent, if any, such City of Houston rates would be inadequate.”

The District objected to the introduction of the letter basically'because it was a pure conclusion of Mr. Owsley, was not supported by any substantive evidence and the recommendation was made without any investigation.

Other than some instruments dealing with the question as to whether the property in fact was owned by the Lone Star Water Company or the District, the above matters constitute all the material evidence before the Examiner.

On August 21, 1959 the Examiner made his report and recommendation to the City Council, The entire transcript of the proceedings before him was transmitted. It recited the District had consistently challenged the jurisdiction of the City and had declined to put on any evidence or permit the City to examine its records. It then called attention to Mr. Owsley’s recommendation. The report concluded with this sentence:

“Since there was no evidence offered on which any different conclusion could be based, I concur in the recommendation of the Public Service Department and suggest that the City Council adopt a motion requesting the Legal Department to prepare a rate ordinance fixing the rates in accordance with such recommendation.”

Such a motion was made and passed by City Council on August 27, 1959. An ordinance was passed and became effective September 1, 1959. The ordinance recited the procedure that had been followed, as we have above stated; recited the failure and refusal by the District to produce or allow examination of its books and records; recited the failure of the District to put on evidence; recited that the recommendation of Mr. Owsley was in evidence; and recited the City Council had considered the transcript of the hearing before the Examiner and the recommendations of the Examiner and Mr. Owsley. The ordinance then enacted the City of Houston rates. It then recited if the District was not satisfied with the rates, it could apply for a hearing and one would be granted.

We have reached the conclusion that the City had jurisdiction to prescribe the rates to be charged the District’s customers whom it served with water in the City of Houston, the customers being within an area wholly outside of and in no way connected with the territorial limits of the District and the customers being served through a system wholly unrelated to a sysr tem established and maintained by the District within its limits 'where it developed the water resources of the District, or. constructed elsewhere for the purpose of primarily serving the needs within the limits of the District.

The District’s position is that .it is a governmental agency, a political subdivision of the State of Texas, carrying on a governmental function, that is, the conservation and development of the. State’s water resources. It contends it is given authority by law to distribute water within or without the District and to construct and operate distribution systems within or without its limits and that its Board of Directors is given authority to fix the rates it shall charge. It further contends that even if under the facts of this case it has exceeded its authority, its acts are not contrary to any statute nor against public policy or malum in se and only the State through quo warranto 'can question its acts.

It is undoubtedly true that the people of Texas through the adoption of Article 16, Section 59, of the Constitution, intended to grant the State broad powers to take steps to conserve our natural resources such as water through utilization of such resources. Too, the legislature of Texas, pursuant to the authority there conferred, has passed, among other statutes, Articles 7880-1 to 7880-147z, which authorize the creation of political subdivisions of the State to further the conservation and development of our natural resources. The agencies thus created are political subdivisions of the State and certainly while acting within the authority conferred are carrying on governmental functions. Willacy County Water Control and Improvement District No.' 1 v. Abendroth, 142 Tex. 320, 177 S.W. 2d 936; Bennett v. Brown County Water Improvement District, 153 Tex. 599, 272 S.W.2d 498.- However, such agencies have only such powers as are granted by statute, which include such implied powers as are necessarily implied as an incident to- the express powers given. Tri-City Fresh Water Supply District No. 2 of Harris County v. Mann, 135 Tex. 280, 142 S.W.2d 945.

Article 7880-48, relied on by the District, provides in substance that the District shall have full power to construct all plants, works and improvements necessary to the purpose for which it is organized and incident thereto. It also provides the District may construct works and improvements for the purpose of supplying water for municipal uses, domestic use, power and commercial purposes and all other beneficial uses. Section 125 of the same article, in dealing with the right of eminent domain, authorizes the acquisition of land for construction of plants for purposes for which the District was formed. Such land may be either within or without the District. It also authorizes the District to contract for the use of its waters, power or other facilities or service within or without the District. Section 106 of said article gives the Board of Directors the right to fix rates to be charged by the District. So does Sec. 3a.

We are of the view, however, that the statutes do not authorize the District to roam at large throughout the State and distribute water wherever it wishes without regard to limitations placed on it by statute. We are of the view that considering all of the provisions of Article 7880, V.A.T.S., there are some limitations imposed.

Article 7880, Sec. 4, in effect contemplates and provides for geographical limits. It provides a district may include the area of any county or counties or a part thereof including towns, villages and municipal corporations. Further the lands in a district need not be contiguous but if they are not, each segregated area must cast a majority vote before it may be included in the district. Section 10 provides that a majority in number of owners of title to the land and of the value of the land to be included in a district must sign the petition for a district. Section 11 requires that the petition designate the boundaries of the district. Sections 75, 75a, 75b and 75c all deal with addition of land to a district by making such land a part of the district. Section 138 authorizes the sale of surplus waters to others, but it is expressly stated it is the duty of the district to protect the lands within the district with an adequate supply of water for the • purpose for which it was organized. Too, it was to protect the supply of water .for municipal purposes within the district.

The effect of these statutory enactments, when considered as a whole, is not to authorize a water control and improvement district to do as appellant District here has done. It has acquired a water distribution system 22 miles outside its boundaries and the water distributed is from a source wholly outside its boundaries, and there is no use of such water within its boundaries. In other words, it is a completely autonomous system. We should note for the sake of accuracy that the District receives at least a $1500.00 per month operating fee. We do not think this legally material here. While appellant District stresses the authority conferred by statute to sell water inside or outside its limits and to exercise the right of eminent domain within or without its limits, we do not feel such authorizes the situation we have before us.

The statutes envision an orderly development of the State’s natural resources, such as water which is here involved, through the formation of definite districts with geographical boundaries where waters of the State will be conserved through primary utilization within the district. These waters may come from within the district or from without.’ However, the ■overriding purpose is service within the district. There may not be sufficient supply within the district so the statutes have authorized acquisition of properties outside the district but, we think, to be used primarily in developing the area within the district. It is recognized, however, that the needs of the district may be served and water may be available and a district is-authorized to supply water outside its limits as an incident to its primary obligation. While we recognize a plant for the accumulation or production of water may lie wholly outside of the district (Lower Nueces River Water Supply District v. Cartwright, Tex.Civ.App., 274 S.W.2d 199, ref., n. r. e., and King v. Jefferson County Water Control & Improv. Dist. No. 7, Tex. Civ.App., 2⅜1 S.W.2d 185, error ref.), the primary use of the water is to be within the district. Incident to that primary service, if the needs within the district are served, water may be furnished without the district. The same is true where the source of the water is within the district. We have no such case here. We have a case where the source of the water is wholly unconnected with the limits of the district and distribution is in an area wholly unconnected with and outside the limits of the district. This act by appellant is beyond its authority and ultra vires.

We have read all of appellants’ cases and deem them distinguishable from this case on a basis of the reasoning above set out.

The District says even if it has no such authority, its acts are only ultra vires and the City is in no position to question its acts, but only the State of Texas may raise the question. We are of the view that when such a district without authority of law enters a municipality to carry on business, it operates as a private utility in its operations there and is subject to regulation by the municipality as any other utility. While we have found no authorities covering this precise situation there are cases that by way of dictum, which we consider sound, establish such principle. City of New Braunfels v. City of San Antonio, Tex.Civ.App., 212 S.W.2d 817, ref., n. r. e.; Bay City Plumbing & Heating Company v. Lind et al., 235 Mich. 455, 209 N.W. 579; Borough of Verona v. Township of Cedar Grove, 49 N.J.Super. 293, 139 A.2d 584; Mettet v. City of Yankton et al., 71 S.D. 435, 25 N.W.2d 460; State of Georgia v. City of Chattanooga, 264 U.S. 472, 44 S.Ct. 369, 68 L.Ed. 796. In the case before us the City preempted the territory here involved when it passed the annexation ordinance on first reading in February, 1956. The District did not acquire the system until December, 1956. The City is not attempting to make the District cease its operation; it is merely asserting its governmental authority to regulate, for the benefit of its citizens, the rates that the District may charge. We emphasize that such power is asserted in a situation where the District is operating where under the circumstances it is not by law authorized to operate.

We are of the view, however, that the action of the City Council. was arbitrary because it was based on absolutely no investigation of the facts with regard to the fair value of the District’s property and what rates as applied to that value would enable the District to realize a reasonable return on its investment. Procedural due process has been denied.

The City takes the position that the District must show that the rates fixed are in fact confiscatory. It says the courts are concerned only with the end result. This position is correct where procedural due process has been observed. Railroad Commission v. Houston Natural Gas Co., 155 Tex. 502, 289 S.W.2d 559. All of the cases cited by the City to sustain its position were cases where procedural due process had been observed by notice and a hearing at which the regulatory body had gone forward and introduced substantial substantive evidence as to value and had on the basis of such exercised its legislative judgment. In such cases it was correctly held that presumptively the rates fixed were valid and the utility was under the burden of proving the rates confiscatory. None of them were cases where the regulatory body had reduced rates without a consideration of substantive evidence as to the value of the utility’s property and an exercise of legislative judgment based on such evidence.

We have heretofore held that procedural due process must be observed and that procedural due process requires notice and hearing. City of Houston v. Willow Bend Utilities, Inc. et al., Tex.Civ.App., 331 S.W.2d 333, ref., n. r. e. Supporting our holding are cases there cited. Subsequent to our decision the Supreme Court of Texas held the same. Glen Oaks Utilities, Inc. v. City of Houston, Tex., 340 S.W.2d 783. It is true that in the case decided by us the ordinance reducing rates was enacted without any notice and in the Glen Oaks case the ordinance was enacted without notice after a suspended and uncompleted hearing. We deem this to be no significant difference from the case before us. In those cases no requirement was made that the utility establish the rates fixed were in fact confiscatory.

A utility, in the absence of assertion by a regulatory body of its authority to fix rates, may fix its own rates. United Gas Corp. v. Shepherd Laundries, 144 Tex. 164, 189 S.W.2d 485; City of Houston v. Memorial Bend Utility Co., Tex.Civ.App., 331 S.W.2d 418, ref., n. r. e. In this case the District had fixed its rates at a time before the City assumed to reduce them. When the City moved to assert its rate making authority by giving notice to the District to show cause why its rates should not be reduced the burden was on the City to introduce evidence as to value of the property, income, expense, etc., so the Council would have some material evidence on which it could exercise legislative judgment. While no Texas case has been cited, and we have found none, holding expressly that the burden of going forward is on the regulatory body, we hold such to be law on principle. A legally established rate, such as the District had established here, is binding until set aside. It may not be invalidated by legislative fiat. It can only be set aside by the party attacking it showing factually that it is excessive and other rates are sufficient. Eldridge v. Fort Worth Transit, Tex.Civ.App., 136 S.W.2d 955, dism., cor. judg.; In re Coal Rate in New Mexico, 23 N.M. 704, 171 P. 506. We think it very significant that while the many cases cited us and which we have ourselves found that deal with efforts of a regulatory body to reduce rates, the regulatory body has gone forward with the introduction of substantive evidence and has exercised legislative judgment on the basis of substantive evidence before it.

The rate ordinance passed in this case was passed without according the District procedural due' process because it was based on no substantive evidence. The Council merely by legislative fiat fixed the rates. The ordinance on its face shows the rates were fixed on a basis of the recommendation of the utility rate expert and the Examiner. The recommendations of the rate expert and the Examiner were made on a basis of their thought that, since the District was serving customers in the City ■ and the District not having offered any evidence as to why the District should charge a different rate, they saw no reason why the water rates charged by the City of Houston should not be fixed for the District. The fact that the City charges certain rates is of no probative value in determining what rates the District should charge in the absence of a showing of comparable systems. Texas & New Orleans R. R. Co. v. Railroad Commission, 155 Tex. 323, 286 S.W.2d 112. We judicially know that the City has many thousands of customers while the record here shows the District has some 3200 customers. This one item of difference will itself illustrate the obvious want of comparability.

Also, the ordinance was based on the fact that the District refused to produce its books and records that were subpoenaed. Mr. Owsley’s letter, which was introduced before the Examiner, shows his recommendation was made as to rates, not on a basis of an examination of information previously furnished by the District, and his expert estimation on matters such as operating expenses which the District had not furnished, but because the District refused to produce their books, and he saw no reason why the District should charge any different rates than the City. The recommendation of the Examiner and the ordinance of Council have no different foundation.

The City says the District cannot complain because it refused to produce its books after they were subpoenaed. The failure to respond to a subpoena is not punishable by the fixing of rates in a manner which denies due process. The subpoena can be enforced by court action. Too, the City overlooks the fact that the District had furnished the. information. we have above .outlined, but the City seems to have made no use of it.

The City contends the District did not plead denial of procedural due process. We have read the entire pleading, including the trial amendments, and are of the view they are sufficient to raise the issue.

We, therefore, hold the rate ordinance is void and we here render judgment dissolving the injunction granted by the trial court enjoining the District from charging rates in excess of those fixed by the City in its ordinance. However, we hold that the City does have jurisdiction under the facts of this case to fix the rates to be charged by the District for water served its customers in the City.

Reversed and rendered.

COLEMAN, J., not sitting.


text:
    The STATE of Texas, Appellant, v. Covy WILLIAMS et ux., Appellees.
    No. 7386.
    Court of Civil Appeals of Texas. Texarkana.
    May 8, 1962.
    Rehearing Denied June 5, 1962.
    Fisher, McLaughlin & Harrison, Paris, for appellant.
    Moore & Lipscomb, Paris, for appellee.
   CHADICK, Chief Justice.

This suit was brought by the State of Texas, in the exercise of its power of eminent domain, to condemn land for use as a public highway. Judgment was entered making an award to the landowners from which the State has appealed. The judgment of the trial court is affirmed.

A total of 10,560 acres of land was severed from two tracts, one of 19.7 acres and the other containing 14 acres, belonging to Covy Williams and wife, Catherine Williams. The issues in the trial court were confined to the determination of the market value of the land appropriated and severance damage to the remainder. The State has briefed ten points of error, all concerned with the trial judge’s rulings in the admission of evidence.

Over objection of the State, the trial judge admitted in evidence a written instrument tendered by the appellees, Covy Williams and wife. The instrument was not incorporated in the Statement of Facts. It is referred to as a Contract of Sale in Mr. Williams’ testimony. Counsel for the State referred to it as an option. Mr. Williams testified that he entered into a written contract with George Buckstaff on November 3, 1959, agreeing to sell him a portion of the 14 acre tract involved in this proceeding. The consideration for the land to he sold was approximately $1,350.00 per acre. Mr. Buckstaff put up $500.00 and later “backed out” of the agreement, according to Mr. Williams, and Mr. Williams kept the $500.00.

Mr. Williams, while testifying in his own behalf as a value witness, said that in arriving at his opinion of value he considered sales of other comparable property. Among the sales he considered, or the values of lands considered, was the value inferable from the agreement with Buckstaff. The court instructed the jury that the Williams-Buckstaff Contract was admitted “only as bearing on the basis upon which Mr. Williams formed an opinion as to the value of such property.”

Counsel for the State construed the Williams-Buckstaff agreement as an option letter, being in essence Williams’ unaccepted offer to sell or Buckstaff’s unconsummated offer to buy. If the essential nature of the instrument is an offer, as the State contends, the trial court should have sustained the State’s objection. Unaccepted offers to buy or sell land are incompetent evidence of land value in condemnation cases. Hanks v. Gulf, Colorado & Santa Fe Railway Company, 159 Tex. 311, 320 S.W.2d 333; Taub v. Houston Independent School District, 339 S.W.2d 227, N.R.E.; Loumparoff v. Housing Authority of City of Dallas, Tex.Civ.App., 261 S.W.2d 224, N.W.H.; State v. Layton, Tex.Civ.App., 147 S.W.2d 515, N.W.H. The same reasons that preclude evidence of an unaccepted offer render such offer valueless as a foundation for an opinion of value.

The nature of the instrument introduced is beclouded, but the evidence discernible indicates that it is very similar to an instrument considered in Robards v. State of Texas, Tex.Civ.App., 285 S.W.2d 247, N.R.E. The agreement in the Robards’ case was voluntarily executed, a down payment on the land made, and by mutual agreement the parties cancelled the contract after it became known a part of the land would be condemned. In Robards it was contended, as it is here, that the agreement was a mere unaccepted offer to buy land at a given price and not admissible to show market value. The court said: “A contract of sale is not an offer. It is, if valid, a binding obligation on all parties. In our opinion it was admissible.” There is no suggestion in this record that Williams and Buck-staff did not make the agreement in good faith, or that it constituted a simulated transaction. As the record stands, no error is shown in the trial court’s ruling.

While Mr. Williams was a witness in his own behalf during re-direct examination, his counsel propounded this question:

“Mr. Williams, what effect on the value * * *, if any, does traffic on Highway 82, * * * have on the two segments that will be left ?”

The State interposed the following objection :

“We are going to object to that question as being improper and too remote and not shown that he is qualified to answer, and no business operation out there to base it on.”

The point of error challenging the validity of the Court’s action in overruling the objection is as follows:

“The Trial Court erred in overruling appellant’s objections to testimony by Covy Williams in regard to traffic count and the relevancy thereof to the value of property involved and forms no basis in law upon which the jury could arrive at value but would permit them to speculate upon their value as a result of such testimony.”

The basic issue made by the point of error is that the traffic count on Highway 82 was improperly admitted because it was not relevant in fixing the land’s value. The objection made shows quite clearly that at the time the evidence was offered the State opposed it on the ground that the witness was not qualified to answer the question. No objection was made to the admission of the traffic count or its relevancy to value. The point of error is overruled. Dobb v. Perry, Tex.Civ.App., 145 S.W.2d 1108, N. W.H.; 1 Tex. Law of Evidence, p. 25, Sec. 26.

Edmond Castleberry, a witness for the land owner, testified that he was one of the seven Ruling Elders of the Lamar Avenue Church of Christ at the time that church acquired a ten acre tract of land adjacent to Highway 82 and the Loop Road while the Loop was under construction. (The land condemned was acquired for use in constructing the Loop.) The Ruling Elders acted for the church in making the purchase, and necessarily agreed to the price paid for the land purchased. Over objection Mr. Castleberry was permitted to testify that as an Elder he was not influenced in buying the ten acre tract by the fact that the Loop Road adjoined the east side of the property. He made it clear that he could speak only for himself and not his fellow Elders. He said that his interest was in securing property on Lamar Avenue, (Highway 82), and that the Loop Road had very little to do with the property’s value so far as he was concerned. Williams as a witness in his own behalf had testified that he considered this purchase by the church in arriving at his opinion of the value of his property.

There is authority for the admission of evidence of sales of comparable land made subsequent to the date of condemnation where the sales considered involve land that was not benefited or its market value affected by the public improvement causing the condemnation. Housing Authority of the City of Dallas v. Shambry, Tex.Civ.App., 252 S.W.2d 963, N.R.E.; City of Houston v. Collins, Tex.Civ.App., 310 S.W.2d 697, N.W.H.: Texas Law of Condemnation (Rayburn), p. 473, Sec. 164 (4). Proof of such factors as benefit from the proposed improvement or that the improvement has not caused a substantial change in market value appear to be authorized, but evidence of the influences that prompted Mr. Castleberry to agree with his fellow churchmen in making the purchase of the ten acre tract is of no value in establishing these relevant factors. Castle-berry’s testimony should have been rejected. His motivation in agreeing to the purchase made by the church is entirely foreign to any issue in the condemnation proceedings. However, reviewing the record as a whole, it can’t be said that the evidence was so prejudicial as to require reversal of the case.

Related to the point just discussed is the appellant’s point that the trial court erred in admitting evidence of the sale of the ten acre tract to the church as a sale of land comparable to that involved in the condemnation proceedings. Evidence of the sale was introduced as a basis for Williams’ opinion of value of the land condemned and damaged; in this respect it was cumulative of other evidence. The land owner, was qualified to give his opinion of value. See City of Houston v. Collins, supra; Texas Law of Condemnation Sec. 128. Supporting that value by an inadmissible sale was erroneous. Under the circumstances this court is unable to say that the admission of the sale was so prejudicial as to require a reversal of the case, as the ill effect of such evidence was diluted by the cumulative effect of the legitimate proof. See City of Dallas v. Shambry, supra; City of Houston v. Collins, supra.

All of the appellant’s points of error have been carefully considered, and it is concluded that reversible error has not been shown. The points are respectfully overruled.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING.

A copy of the letter dated November 3, 1959, from George Buckstaff to Covy Williams, discussed in the earlier paragraphs of the original opinion, has been located in the original exhibits forwarded to this court by order of the trial judge. In the interest of orderly procedure and the expedition of business observation seems justified on the recurrent difficulties caused by the filing of- original exhibits in the appellate courts. The instrument here is a carbon copy on two sheets of onionskin paper. It was forwarded to this court in a bundle of unindexed plats, photographs, and other exhibits rolled together and held by a rubber band. The letter was not found until its whereabouts was disclosed in the appellant’s motion for rehearing. An instrument of this nature should have been copied into the Statement of Facts. See McFadden v. McFadden, Tex.Civ.App., 213 S.W.2d 71. Counsel should direct the clerk and stenographer in the proper preparation of the record.

The agreement evidenced by the letter is clearly an option contract, and was not admissible in evidence. In addition to the authorities cited in the original opinion, see Wichita Falls R. & F. W. Ry. Co. v. Cooper, Tex.Civ.App., 235 S.W. 927, N.W.H., cited with apparent approval in the recent case of The State of Texas v. Ralph Oakley, Tex., 356 S.W.2d 909; and 5 Eminent Domain (Nichols) 307 Sec. 21.5.

• The inadmissibility of the option agreement brings to the forefront the question of harmless error. Three witnesses were tendered by the appellee who gave opinion testimony on the value of the land involved. No effort was made to qualify one of the witnesses, Mr. Morgan Johnson, as a value expert, and appellees do not now contend that he was qualified. The qualifications of the second witness, Mr. W. A. Griffin, was established. The third witness, Mr. Covy Williams, as landowner, was qualified to express an opinion on value, though his qualification as an expert on land values generally was not shown. Counsel for the State treated Mr. Williams as qualified, however, by asking him about comparable tracts and their sale price. The testimony of these witnesses is mentioned for the purpose of showing the inconclusive nature, of the proof the option agreement was intended to aid and invigorate. The jury could have and perhaps did accept the option as a firm basis for an opinion of the land’s value. There is strong indication that the jury gave it unusual weight from the- jury verdict that the per acre value of the land appropriated was substantially the same per acre price as that agreed to in the option.

The cumulative effect of the option letter with the errors discussed in the original opinion tilt the scale in favor of a conclusion that the admission of the incompetent evidence was harmful. When the record as a whole is examined, it appears that these errors probably caused the rendition of an improper judgment.

The motion for a new trial is granted, and the judgment of the trial court is reversed and the case remanded for another trial.

       On voir dire, preliminary to making the objection noted, counsel for the State questioned the witness on his knowledge of the traffic count and when the witness testified that he had only heard a figure repeated, objected to the witness stating the count, and although the objection was overruled, the witness did not testify to the count. On another occasion when John W. Baird, a witness for the land owners, was on direct examination, counsel for the State took him on voir dire and developed testimony that a map that was being offered in evidence showed a traffic count on the highway adjacent to the land for a time between November, 1954 and October, 1955. After developing such testimony State’s counsel stated that there was no objection to it.


author: GRISSOM, Chief Justice.

text:
    PERMIAN MUD SERVICE, INC. et al., Appellants, v. Maggie SIPES, Appellee.
    No. 3555.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 9, 1960.
    Rehearing Denied Oct. 7, 1960.

      Crenshaw, Dupree & Milam, Lubbock, for appellants.
    Scarborough, Black & Tarpley, Wagstaff, Harwell, Alvis & Pope, Abilene, for ap-pellee.
   GRISSOM, Chief Justice.

On December the 22nd, 1958, there was a collision of an automobile driven by Steve Boone, an employee of Permian Mud Service, Inc., then on a mission for his employer, with a “pickup” truck driven by Calvin Sipes, in which Mrs. Sipes was riding. The accident happened on a farm to market road in the country. Both Mr. & Mrs. Sipes were injured and Mr. Sipes eventually died as a result of the accident. The Fidelity and Casualty Company of New York, the workmen’s compensation carrier for the employer of Mr. Sipes, paid Mrs. Sipes $9,928.16 compensation as a result of the injury and death of her husband. After the death of her husband, Mrs. Sipes sued Permian and Boone for the damages sustained by reason of her injuries in the collision. She did not sue for damages she suffered by reason of the injury and death of her husband. Said insurance company filed “Plaintiff’s First Supplemental Petition”, in the name of Mrs. Sipes, seeking to recover from Permian and Boone $11,172.00 for the injury and death of Mr. Sipes. The insurance company at the same time intervened in its own name, alleging that, as the insurance carrier for Mr. Sipes’ employer, it had paid Mr. Sipes $9,928.16, which it sought to recover out of any amount received by Mrs. Sipes for the injury and death of her husband.

Mrs. Sipes filed a motion for a “separate trial”, under Rules of Civil Procedure 174 (b), of her claim for damages (filed by said insurer in her name) by reason of the injury and death of her husband. The court sustained said motion and ordered separate trials of that claim and Mrs. Sipes’ claim for her own injuries. The suit for her own injuries was tried first.

Upon a trial of Mrs. Sipes’ claim based on her own injuries, a jury found that (1) Boone failed to keep a proper lookout, which was (2) a proximate cause of the collision; that (3) Boone was driving at a high and dangerous rate of speed, which was (4) negligence and (5) a proximate cause of the collision and that (6) $26,000.00 would compensate Mrs. Sipes for her injuries.

The jury also found that (7) Mr. Sipes did not fail to keep a proper lookout; it found that (9) he did fail to yield to Boone one-half of the main traveled part of the road, but that (10) this was not negligence. It did not answer the conditionally submitted issue of proximate cause in connection with issues 9 and 10. It found that (12) Mr. Sipes was driving on his left-hand side of the center of the paved road, but that (13) this was not negligence. It did not answer the conditionally submitted issue of proximate cause relative to issues 12 and 13. Based on said findings, the court rendered judgment for Mrs. Sipes against Permian and Boone for $26,000.00. The defendants have appealed.

The plaintiff having moved for and the court having ordered a “separate trial” of Mrs. Sipes’ claim for her own injuries and her claim based on her husband’s injury and death not having been tried, we are first confronted with the question whether the judgment for damages by reason of Mrs. Sipes’ own injuries, rendered in such a separate trial, is a final judgment, or whether it is interlocutory and no final judgment can be rendered and, therefore, no appeal had until after a trial of her claim based on the injury and death of her husband. The appellants, Permian and Boone, assert some doubt of the finality of the judgment, but, because of the uncertainty of the law, dared not fail to appeal. The Insurance company in an able brief suggests that since Mrs. Sipes’ motion and the order for a separate trial were expressly based on R.C.P. 174(b), instead of R.C.P. 41, which provides for a “severance”, there being neither motion nor order for a “severance” by that name, that the judgment rendered was not final and Boone and Permian have prematurely attempted to appeal.

One material phase of the question as to the finality of said judgment has been definitely determined. There can be no severance by implication. There must be an order for a severance in order that a final, appealable judgment may be rendered. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200; Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76; Sears v. Mund Boilers, Inc., Tex.Civ.App., 328 S.W.2d 199, (Writ Ref.); Palmer v. D.O.K.K. Benevolent & Ins. Ass’n, 160 Tex. 513, 334 S.W.2d 149; Myers v. Smitherman, Tex.Civ.App., 279 S.W.2d 173.

There can be no doubt but that Mrs. Sipes’ claim by reason of her own injuries and her claim for damages based on the injury and death of her husband are severable causes of action. In Watson v. Watson, Tex.Civ.App., 270 S.W.2d 298, an order for a “separate trial”, expressly based on R.C.P. 174(b), instead of R.C.P. 41, identical in all material respects with the order entered in this case, was held to be an order for a “severance” of the causes of action there asserted. The judgment entered in a separate trial of one of the causes of action was considered final and appealable. The judgment rendered in a separate trial of one of the causes of action was affirmed by the Court of Civil Appeals, 339 S.W.2d 81. An application for a writ of error was refused by our Supreme Court, with the notation “R.N.R.E”. If the judgment rendered on one of the two causes of action asserted by the plaintiff in that case, under an order for a “separate trial”, expressly based on R.C.P. 174(b), that cannot be distinguished from the order in this case, was not final and appealable the Court of Civil Appeals could not have affirmed the judgment and our Supreme Court could not have refused a writ. They would have been required to dismiss the appeal for want of jurisdiction, regardless of whether the error was assigned. We, therefore, conclude that our Supreme Court has held, in effect, that the present judgment is final and, hence, ap-pealable. That conclusion finds support in the following decisions. Latshaw v. Barnes, Tex.Civ.App., 170 S.W.2d 531; Sterett v. Dyer, Tex.Civ.App., 230 S.W.2d 461, (Writ Ref.) ; Meridith v. Massie, Tex.Civ.App., 173 S.W.2d 799, (Writ Ref.); Lydick v. Fischer, 5 Cir., 135 F.2d 983. Also see 36 Tex.Jur. 339. We hold that the judgment rendered on Mrs. Sipes’ severable cause of action for her own personal injuries is final and that we have jurisdiction of the appeal.

The substance of Boone’s and Permian’s points is that the court erred in overruling their motions for judgment and for judgment non obstante veredicto because it was undisputed, and the jury found, that Sipes 'drove on his left side o'f the paved roadway and failed to yield one-half to Boone and, there being no evidence of circumstances excusing such conduct, Sipes’ driving on the wrong side was negligence and a proximate cause of the collision as a matter of law. They also contend that .the finding that Sipes was not negligent is not supported by any evidence, is contrary to the overwhelming weight of the evidence and clearly, wrong and that' the court erred in overruling their motion to disregard the findings .that Sipes’ driving on his left side and failure to yield one-half of the road were not negligence, because .such acts were tboth negligence and proximate causes of .the collision, as a matter of law.

It is rarely’ held that proximate 'cause is established as a matter of law. 'Usually, it is a question of fact. But, regardless of whether Sipes’ driving on his left was negligence, appellants had the burden of establishing the defense of contributory negligence, including the fact that •Sipes’ driving on his left was a proximate cause of the collision. To defeat Mrs. Sipes’ recovery under the findings favorable to her it was incumbent upon appellants to obtain a finding that Sipes’ driving on his left side of the road was a proximate cause of the collision. Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587, 590. Under a comparable situation, our Supreme Court said in Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 364:

“This Court recognized in South-land-Greyhound Lines v. Richardson, 126 Tex. 118, 86 S.W.2d 731, that excessive speed in meeting and passing another automobile could be a proximate cause of a collision with such automobile even if it were in the wrong traffic lane.”

The court expressly rejected the contention that excessive speed could not be a proximate cause of the collision with an automobile on its wrong side.

Viewing the evidence in the light most favorable to Mrs. Sipes, as we are required to do in considering the contention that there was no evidence excusing Sipes’ driving on his left, there was evidence to the effect that Boone was driving faster than 60 miles per hour; that it was very foggy down in a draw, near a culvert, where the Sipes’ car was and where the accident occurred; that, although it was daylight, it was necessary to use lights on •the pickup where Mr. Sipes was driving; that the fog was heavy and “awful bad” in .low spots; that the road was not level and was wet; that about 375 feet from the place of collision Boone “topped a rise” and saw the Sipes’ pickup angling over on Boone’s side of the road; that the fog had “lifted” from the high spots; that Boone did not immediately do anything about slowing or stopping; that Boone could have stopped before he reached the ■place of collision, or he could have driven off the pavement and missed Sipes; that when Boone did apply his brakes he.skidded 258 feet, straight down the pavement, hit Sipes’ pickup, knocked it 50 feet and continued down the road 108 feet from the point of impact, and that the Sipes did not see the Boone car until it was “right on top” of them. There was sufficient evidence of circumstances excusing Sipes’ driving on the left.

The jury had a right to conclude from the evidence that Boone was guilty of negligence in driving at an excessive speed and that such negligence was a proximate cause of the collision. We cannot hold as a matter of law that Sipes’ driving on his left side was a proximate cause of the collision. See Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892, (Ref. N.R.E.); Dobbins v. Culp, Tex. Civ.App., 326 S.W.2d 640 and Jessee Produce Company v. Ewing, Tex.Civ.App., 213 S.W.2d 750. Relative to the court’s presumed finding that Sipes’ act was not a proximate cause of the collision, we are required to view the evidence in the light most favorable to the judgment. Joe D. Hughes, Inc., v. Moran, Tex.Civ.App., 325 S.W.2d 829, 831. We may not substitute our judgment for that of the court or jury even if we would have reached a different conclusion. Continental Bus System v. Biggers, Tex.Civ.App., 322 S.W.2d 1. It has been held that the speed of an automobile which collides with another which is on its wrong side of the road may be the proximate cause of the collision. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 363; 47 A.L.R. 132; Womack v. Hazelwood, Tex.Civ.App., 271 S.W.2d 699, 701, (Ref. N.R.E.); Jessee Produce Company v. Ewing, Tex.Civ.App., 213 S.W.2d 750, 753.

In Mundy v. Pirie-Slaughter Motor Company, 146 Tex. 314, 206 S.W.2d 587, 590, our Supreme Court said:

“Mere proof that the defendant’s agents were guilty of negligence per se or that they were guilty of negligence in fact, does not, of course, establish liability on the defendant’s part. Plaintiff must go further and prove that such negligence was the proximate cause of the collision in which he was injured.”

The jury found that Mr. Sipes’ driving on his left side of the roadway was not negligence. But, negligence or not, Mrs. Sipes’ recovery under the findings favorable to her is not defeated until Mr. Sipes’ driving is established as a proximate cause of the accident. Whether Sipes’ driving on his left was a proximate cause of the collision was conditionally submitted, to be answered only in the event it was first found that Sipes was negligent. Having found that he was not negligent, in accord with the court’s instruction, the jury did not answer whether Sipes’ act was a proximate cause. We cannot hold as a matter of law that it was a proximate cause. Appellants did not object to the conditional submission of proximate cause. They thereby waived their right to have the jury answer that issue and permitted the court to find, as it presumably did, that Sipes’ driving on his left side of the roadway was not a proximate cause of the collision. In Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 991, our Supreme Court said:

“We believe that the cited cases correctly hold that it is incumbent upon a party asserting an affirmative defense to see that the jury answers all essential elements of the defense in his favor, or to object to the submission of the case to the jury in such manner that an answer on an essential element will be prevented. Petitioner could have insisted that if the jury found that the respondent failed to keep a proper lookout, then they should answer the issue as to whether such failure was a proximate cause of the collision. Petitioner did not so insist. It therefore follows, under the cases cited and under Rule 279, that petitioner waived its right to a jury answer on the unanswered issue on proximate cause and that this issue must be taken as having been answered by the court in such manner as to support the judgment.”

See also Clark v. National Life and Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820 and Texas Employers Insurance Ass’n v. Ray, Tex.Civ.App., 63 S.W.2d 290, 295, (Writ Ref.).

All of appellants’ points have been considered and are overruled. The judgment is affirmed.


author: WILSON, Justice.

text:
    Frankie B. ADAMS et al., Appellants, v. CAN-DEE OIL CORPORATION, Appellee.
    No. 3983.
    Court of Civil Appeals of Texas. Waco.
    May 10, 1962.
    Rehearing Denied May 31, 1962.
    Yarborough, Yarborough & Johnson and Roger L. Turner, Dallas, for appellants.
    J. Tom Sample, Dallas, for appellee.
   WILSON, Justice.

In a non-jury trial judgment was rendered for defendant in plaintiff’s suit for commissions alleged to be due under a written contract of employment. The contract provided plaintiff was to receive 2¾/⅝ per gallon on gasoline sales as compensation for managing defendant’s filling station. The sum due, if all sales were computed at the 2½5⅞ rate, was stipulated. No findings or conclusions were filed.

Plaintiff introduced in evidence the daily retail inventory balance sheets signed by plaintiff on which plaintiff’s compensation had been paid by defendant. Many of these sheets, signed by plaintiff and furnished by him to defendant as the basis on which compensation was computed and paid, show his commission rate as 1⅜ and 2‡ per gallon for certain days. Plaintiff died before trial.

Appellants’ argument is that since the employment contract provided it could be altered only by mutual agreement in writing, when plaintiff signed the written balance sheets his compensation had already become fixed and liquidated in amount, and any agreement to accept a lower commission was without consideration. A written agreement not to modify a contract except in writing does not preclude an oral modification. Morrison v. Ins. Co., 69 Tex. 353, 6 S.W. 605, 609; Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 132 S.W. 2d 553, 164 S.W.2d 488, 491; Apperson v. Shofner, Tex.Civ.App., 351 S.W.2d 367, 369; 13 Tex.Jur.2d p. 505.

The signed balance sheets furnished by plaintiff to defendant showing the rate at which his commission was computed and paid (which it was stipulated defendant acknowledged and approved), constituted, however, a written agreement. The requirement of consideration for the modification is supplied by the elementary principle of contract law that writing imports consideration. Wright v. Robert & St. John Motor Co., 122 Tex. 278, 58 S.W.2d 67. Affirmed.