author: BATEMAN, Justice.

text:
    Ellett L. PASCHALL, Appellant, v. Margaret E. GEIB, Appellee.
    No. 16741.
    Court of Civil Appeals of Texas. Dallas.
    June 17, 1966.
    Rehearing Denied July 15, 1966.

      Donald McNees and George & Stewart, Dallas, for appellant.
    Bailey, Williams, Weber & Allums and G. David Westfall, Dallas, for appellee.
   BATEMAN, Justice.

The appellant Ellett L. Paschall appeals from a summary judgment rendered against him in favor of the appellees Margaret E. Geib and The Aetna Casualty & Surety Company, herein called Aetna. The basis of the suit was a California judgment in favor of Margaret E. Geib against Ellett L. Paschall in the sum of $8,212.05 and costs of $50.60.

By his first three points of error on appeal appellant complains that the foreign judgment was not duly authenticated and was not shown to be final. To be entitled to full faith and credit in another state the judgment must be attested by the clerk of the court rendering the judgment, and the seal of the court if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. United States Constitution, Article IV, Section 1; United States Code Annotated, Title 28 § 1738. The judgment appears to have been signed by Russell S. Waite, Judge of the Superior Court of the State of California for the County of Riverside, and is dated November 18, 1964. The copy is accompanied by two certificates dated April 28, 1965; one by Donald D. Sullivan, Clerk of said Court, certifying that it is a full, true and correct copy of the original on file and of record in his office, and the other by Leo A. Deegan, Judge of the same Court, certifying that the said Donald D. Sullivan is the Clerk of the said Court, that full faith and credit are due to his official acts, and that the seal affixed to the exemplification is the seal of said Court, and that the attestation thereof is in due form and according to the form of attestation used in California.

Appellant says the copy of the California judgment is not duly authenticated because (1) it appears to have been signed by Russell S. Waite but the certificate to the genuineness of the Clerk’s attestation is signed by Leo A. Deegan, and both Waite and Deegan are described as Judges of the same Court; and (2) neither Waite nor Deegan is certified by the Clerk as Judge of that Court.

The fact that the judgment and the certificate are signed by two different individuals is not in our opinion a defect in .the record. So far as we know, there may be several Judges of the Superior Court of California for Riverside County, or Judge Deegan may have been the successor of Judge Waite. Appellant argues that if there were more than one judge of the court the statute required certification by “the chief justice or presiding magistrate,” citing Harper v. Nichol, 13 Tex. 151, and Randall v. Burtis, 57 Tex. 362. At the times those cases were decided the federal statute did make that requirement, but since 1948 the amended statute, 28 U.S.C.A. § 1738, has required only the certificate of “a judge of the court.”

Neither are we impressed by the absence of extrinsic evidence that Judges Waite and Deegan are actually judges of the Superior Court of California for the County of Riverside. In the absence of proof to the contrary we can properly presume that the certificates are true. Kinsley v. Rumbough, 96 N.C. 193, 2 S.E. 174; Dusenberry v. Abbott, 1 Neb. 101, 95 N.W. 466.

The California judgment appears on its face to be a valid, final and subsisting judgment rendered by a court of general jurisdiction. The authentication thereof is in compliance with the federal statute, and its introduction made a prima facie case, at least for Geib, unless it was successfully attacked or the lack of jurisdiction of the California court shown. Garman v. Reynolds, Tex.Civ.App., 284 S.W.2d 262, wr. ref.

Jurisdiction will be presumed, and all prior requisites to the rendition of a valid judgment will be presumed to have been fulfilled, unless disproved by extrinsic evidence or by the record itself. Adam v. Saenger (Tex. 1938), 303 U.S. 59, 58 S.Ct. 454, 82 L.Ed. 649. These presumptions, and the authenticated copy of the foreign judgment, cast upon the appellant the burden of an affirmative showing that there was an omission of some requisite to a valid judgment. Liddell v. Blevins, Tex.Civ.App., 244 S.W.2d 335, wr. ref. And this must be done by some means other than mere pleadings. Gulf, C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, wr. ref. The burden of proof does not actually shift, but the burden of going forward with evidence does shift when the movant has established his cause of action. Statham v. City of Tyler, Tex.Civ.App., 257 S.W.2d 742, 746, wr. ref. n.r.e.

Because we feel that the exemplified copy of the California judgment established the right, at least of the appellee Geib, to recover in the Texas suit as a matter of law, we overrule appellant’s first three points of error.

By his fourth point of error, appellant contends that, the California judgment being in favor of only the appellee Geib, it was error to render summary judgment against him in favor of the appellee Aetna, which was neither plaintiff nor defendant in the California suit. We do not agree with appellant.

In her original petition in the Texas suit the appellee Geib sued “for the use and benefit of the Aetna Casualty & Surety Company,” reciting the California judgment in her favor for $8,212.05, plus costs of $50.60, and alleged that the basis of her suit in California against appellant was a collision between an automobile owned and operated by him and another automobile, in which she was a passenger, owned by one Niestradt and insured by Aetna by a policy which provided, inter alia, for “uninsured motorist coverage”; that Aetna, being satisfied that Paschall and his car were not covered by liability insurance, thus fixing liability on it under said “uninsured motorist coverage”, paid Margaret E. Geib $6,750, whereupon Aetna became subrogated to her cause of action to the extent of said $6,750. She prayed for a judgment for $8,212.05, of which $6,750 should be for the use and benefit of Aetna, which should have priority of payment. Appellant especially excepted to the petition because the allegations concerning Aetna, with which appellant had had no contractual dealings and to which he owed no legal duty, created a defect in the parties plaintiff, and such allegations were improper because Aetna was not shown to be under any disability and was not alleged to have had transferred to it any interest in the cause of action sued on, and because said allegations did not apprise him of the terms of any contract between Geib and Aetna. These special exceptions were sustained, whereupon the appellee Geib filed an amended petition alleging the same California judgment but without mentioning Aetna. That company was later given leave to intervene and did intervene, setting up its subrogation rights in substantially the same language as had been used by the appellee Geib in her original petition.

In our opinion, this point is without merit. Appellant was shown to owe the entire amount of the California judgment which had been granted to the appellee Margaret E. Geib. If she saw fit to recognize certain subrogation rights of Aetna, appellant is in no position to deny her the right to do so. Both appellees are represented by the same attorneys and are apparently in complete agreement as to their respective interests in the judgment. If Geib wishes to waive proof by Aetna of the facts and circumstances giving rise to its claimed subrogation interest in a foreign judgment which on its face belongs wholly to her, and to agree to the existence of such interest and the amount thereof, she has the right to do so and appellant, who could not be adversely affected thereby, has no right to attack the judgment because she did so. The fourth point is overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    J. C. DUNN et al., Appellants, v. RELIANCE LIFE & ACCIDENT INSURANCE COMPANY OF AMERICA, Appellee.
    No. 215.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 9, 1966.
    Rehearing Denied Aug. 1, 1966.

      Joel W. Ellis, Harlingen, for appellants.
    Lefkowitz, Green, Ginsberg, Eads & Gilmore, by Jerry C. Gilmore, Dallas, for appellee.
   OPINION

SHARPE, Justice.

This appeal is from a summary judgment rendered for appellee, defendant below, that appellant, plaintiff below, take nothing.

The judgment is necessarily based upon a holding that appellant’s suit is barred by the Texas four-year statute of limitations (Art. 5529, Vernon’s Ann.Civ.St.). The correctness of that holding presents the controlling question.

Appellant’s petition was filed herein on August 20, 1964. He sought judgment requiring appellee to re-convey to him a real estate note dated July 31, 1956, executed by Louis Davis, et ux, in the original principal amount of $8,750.00, secured by lien on real estate located in Harlingen, Cameron County, Texas, payable in monthly installments of $75.00 each. In 1957 appellant assigned the Davis note to Insur O Medic Life Insurance Company, which company was later merged with appellee, and received a credit of $5,000.00 on indebtedness then owing by him. Although the written assignment executed by appellant was unqualified, he alleges that the true agreement with Insur O Medic was that a collateral assignment was made, so that after $5,000.00 was paid on the Davis note, it would then be recon-veyed to appellant who would be entitled to collect the remaining amount owing, provided appellant was not then otherwise indebted to Insur O Medic. Appellant alleges that a mutual mistake was made in 1957, not in connection with the agreement actually made but in incorrectly evidencing it by an outright assignment of the note, when only a collateral assignment was proper. Appellant’s theory of recovery is that his cause of action did not accrue and he did not have a matured right to demand return of the Davis note until the above conditions precedent were met in January, 1964, and that the statute of limitations did not begin to run until then. Alternatively, appellant sought recovery against appellee for payment of usurious interest and for exemplary damages. Under our disposition of the case it will be unnecessary to pass upon appellant’s alternative causes of action.

The summary judgment evidence herein consists of the deposition of Luther Fisher, an official of Insur O Medic, at the time of the 1957 transaction with appellant, the deposition of appellant, appellee’s answers to appellant’s requests for admissions and copies of certain 1957 letters and records. That evidence supports appellant’s position that the 1957 assignment was for the purpose of collateral only; that Insur O Medic and appellee, its successor, did not have outright title to the Davis note; and that Insur O Medic had agreed to re-convey the note to appellant when $5,000.00 had been paid on it, provided appellant was not otherwise indebted to it. In view of this, we will hereafter refer to such facts as constituting the “alleged agreement” of the parties.

Appellee contends that appellant’s cause of action is barred by the four-year statute of limitations, Art. 5529, V.A.C.S., because appellant discovered as early as October 6, 1959, that appellee, who had then taken over Insur O Medic, took the position that appellant did not have any further interest in the Davis note. When appellant was so advised he talked to officials of appellee in Dallas. He refused to accept the repudiation and immediately executed and recorded a correction assignment in which he described the original assignment as a collateral one and claimed the right to have the Davis note returned to him after $5,000.00 had been paid on it to appellee. The correction assignment was dated April 23, 1957, the same as the original assignment, but was acknowledged on October 5, 1959. Copies of the corrected assignment were furnished to ap-pellee. Rights of third persons are not here involved.

The precise question presented is whether the statute of limitations began to run in October, 1959, when appellee committed an anticipatory breach of the alleged agreement, or when the conditions precedent to appellant’s recovery of the Davis note were fulfilled in January, 1964.

The applicable rules will be briefly stated. Limitation does not begin to run until the right or cause of action accrues. The right or cause of action does not exist until facts exist which authorize the person asserting the claim to seek relief in a court of competent jurisdiction from the person due to make reparation. It involves both the existence of the right and facts sufficient to constitute a cause of action. Hartman v. Hartman, 135 Tex. 596, 138 S.W.2d 802 (1940); Warnecke v. Broad, 138 Tex. 631, 161 S.W.2d 453 (1942) ; Port Arthur Rice Milling Co. v. Beaumont Rice Mills, 105 Tex. 514, 143 S.W. 926, 148 S.W. 283, 150 S.W. 884, 152 S.W. 629. Where some condition precedent to the right of action exists, the cause of action does not accrue and the statute of limitations does not begin to run until the condition is performed. Bowers v. Bowers, 99 S.W.2d 334 (Tex.Civ.App.1936, wr. dism.); Ewing v. Schultz, 220 S.W. 625 (Tex.Civ.App.1920, wr. ref.); Skeeters v. Granger, 314 S.W.2d 364 (Tex.Civ.App.1958, wr. ref., n. r. e.). Where anticipatory breach of a contract is committed prior to maturity such action does not ipso facto mature the contract, but gives the other party an option to accept the repudiation and to sue for breach of contract, on the one hand, or, to refuse to accept the same and hold the contract open until the time for performance arrives. Slaughter v. Roark, 244 S.W.2d 698 (Tex.Civ.App.1951, wr. ref., n. r. e.); Main v. Hopkins, 229 S.W.2d 820 (Tex.Civ.App.1950, n. w. h.); 37 Tex. Jur.2d, Limitations, Sec. 85, pp. 229-230.

Under the alleged agreement relied on by appellant and supported by the summary judgment evidence, his cause of action for return of the Davis note could not accrue until two conditions precedent were fulfilled, i. e., payment of $5,000.00 on the Davis note and the absence of other indebtedness owing by appellant to appel-lee. It is undisputed that these conditions were satisfied for the first time in January, 1964. When appellee repudiated the alleged agreement in 1959, neither of these conditions precedent had been met. Appellant could not have then required appellee to return the Davis note to him because the facts did not exist which were essential to his cause of action. We therefore hold that in the absence of appellant’s acceptance of appellee’s 1959 repudiation of the alleged agreement (amounting to anticipatory breach of contract) the statute of limitations did not begin to run on appellant’s cause of action until January, 1964. His suit was filed shortly thereafter, and, therefore, is not barred as a matter of law under his theory of recovery.

Appellant is entitled to a trial on the genuine issues of material fact shown to be present by the record in this case, particularly concerning the issues as to whether, from all evidence, the true agreement of the parties was that the 1957 assignment was for collateral to secure appellant’s debt, and that Insur O Medic agreed to reconvey the Davis note to appellant when $5,000.00 had been paid on it and appellant was not otherwise indebted to that company or its successor. If appellant succeeds in establishing those issues in his favor, his suit will not be barred because of the 1959 repudiation, amounting to anticipatory breach by appellee, who, at best, stands in the shoes of Insur O Medic as to the true agreement made in 1957.

The summary judgment is reversed and the cause is remanded for trial.


text:
    J. Frank KNIGHT, Jr., Appellant, v. Harold J. SMITH et al., Appellees.
    No. 16789.
    Court of Civil Appeals of Texas. Dallas.
    July 22, 1966.

      L. W. Anderson, Dallas, for appellant.
    Florey & Florey, Mount Pleasant, for appellees.
   BATEMAN, Justice.

The appellant J. Frank Knight, Jr. appeals from an order overruling his plea of privilege to be sued in Tarrant County. The plaintiffs were the appellees Harold J. Smith and his daughter, Ladye Smith White, joined by her husband, Jimmy White, who sued for damages to an automobile owned by Smith and personal injuries of Mrs. White, resulting from a collision between the said automobile and another being operated by the appellant.

The collision occurred on September 11, 1964 on the campus of East Texas State University, at Commerce, Hunt County, Texas. Jimmy White and Ladye Smith, who were affianced but not yet married, were using Smith’s automobile and had parked it in a parking area in which cars were parked on both sides, headed into the curb, leaving a space about IS feet wide between the backs of the parked cars. White backed the car out into that space, stopped it, changed gears and had gone forward about 10 feet when the car he was driving was struck at the left end of the rear bumper by the car being operated by the appellant. A photograph in evidence shows substantial damage to that car at the rear part of the right front fender. White testified that he looked back twice as he was backing out from the place where the Smith automobile was parked, but did not see the car driven by appellant until after the collision; that he, White, was driving about two to five miles per hour, and it appeared to him that the other car was trying to go around him on the left side. His testimony was corroborated to some extent by Ladye Smith, the only other person in the car. The appellant did not testify. No findings of fact or conclusions of law were requested or filed.

That being true, the order overruling the plea of privilege implies all necessary fact findings in support of the judgment, leaving for us the duty of determining whether there is any evidence to support the judgment and the implied findings of fact incident thereto. In doing so we consider only that evidence most favorable to the appellees and disregard entirely that which is opposed to the judgment or contradictory in its nature. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613, 23 A.L.R.2d 1114; Austin v. Cochran, Tex.Com.App., 2 S.W.2d 831; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Skidmore v. Finley, Tex.Civ.App., 396 S.W.2d 952. Moreover, every reasonable intendment must be resolved in favor of the order. James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323, and cases cited therein.

Appellees alleged that appellant was negligent in failing to maintain a proper lookout, failing to make proper and timely application of his brakes, in following too closely, in failing to turn his automobile to the left, and. in operating at excessive speed; and in their controverting plea they adopted the allegations of their petition and alleged that venue lay in Hunt County by virtue of Subdivision 9a of Art. 1995, Vernon’s Ann.Civ.St., in that appellant’s negligence occurred in that county.

Appellant contends, in his first two points of error on appeal, that (1) there was no evidence, and (2) insufficient evidence, to show that he was guilty of negligence proximately causing the accident. He argues that appellees only proved that there was an accident, which is in itself no proof of negligence and raises no inference of negligence, citing Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195.

Moreover, appellant says, as pointed out in Pacific Finance Corp. v. Rucker, Tex.Civ.App., 392 S.W.2d 554:

“ * * * the mere fact that her automobile was struck from the rear does not raise an issue of negligence or establish such. Whether an automobile being struck from the rear raises an issue of negligence or establishes it as a matter of law depends on all the facts and circumstances of the particular case." (Italics ours.)

When it is shown that the defendant’s vehicle has collided with the rear of the plaintiffs’ vehicle, while both are traveling in -the same direction, under the facts and circumstances shown by this record, an inference of negligence may be justified, particularly when the defendant sees fit, as he did here, not to offer any explanation or extenuating circumstance to obliterate the inference. As said in Edwards v. Hawkins, Tex.Civ.App., 77 S.W.2d 1098, 1099, no wr. hist.:

“A person exercising ordinary care in the operation of a car on a public highway does not ordinarily overtake and collide with another vehicle traveling on the proper side of the road and at a reasonable speed. Such an unusual accident, in the very nature of things, suggests negligence. Appellee’s allegations and proof showed more than a mere collision and resulting injury. They showed the character of the accident and such circumstances attending the same as to justify an inference of negligence on the part of appellant.”

In Sutherland v. Cotter, Tex.Civ.App., 226 S.W.2d 476, no wr. hist., where the facts were quite similar to those of the case at bar and the defendant did not see fit to contradict the testimony of the plaintiff, it was held that the undisputed evidence showed, as a matter of law, that the defendant’s driver was negligent in driving his truck too close to the plaintiff’s car and that such negligence was a proximate cause of the collision.

See also Erck v. Zelios, Tex.Civ.App., 401 S.W.2d 867, and the numerous cases cited therein holding the drivers of the rear vehicles in rear end collision cases to have been negligent as a matter of law.

Appellant’s first two points of error are overruled.

By his third point of error appellant contends that, since appellees did not prove damages of sufficient amount to show that the district court had jurisdiction of the case, his plea of privilege was erroneously overruled. We see no merit in this point. Damages in excess of $500 were alleged, and there was proof of some damage, both to Smith’s automobile and on account of Mrs. White’s injuries. There was no contention that the allegations of damages were fraudulently made for the purpose of conferring jurisdiction on the court, nor was jurisdiction otherwise attacked. Under these circumstances it must be held that jurisdiction of the court over the controversy was adequately shown for the purpose of determining the proper venue of the case. 11-B Tex.Jur., Courts, § 59, p. 368; Luse v. Union City Transfer, Tex.Civ.App., 324 S.W.2d 935, 938, wr. dism.; National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021, 1024; Hawkins v. Schroeter, Tex.Civ.App., 212 S.W.2d 843, 847, no wr. hist.; 60 Tex.Jur.2d Venue, § 200, pp 21-22. The third point is overruled.

Finding no reversible error, we affirm the order of the trial court overruling the plea of privilege.

Affirmed.


author: HUGHES, Justice.

text:
    CENTENNIAL INSURANCE COMPANY, Appellant, v. J. N. NUTT, Commissioner of Insurance et al., Appellees.
    No. 11419.
    Court of Civil Appeals of Texas. Austin.
    July 13, 1966.
    Thompson, Coe, Cousins & Irons, I. L. Allen, Michael S. Knuths, Dallas, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Paul W. Phy, Ralph R. Rash, Harry Gee, Jr., Asst. Attys. Gen., Austin, for appellees.
   HUGHES, Justice.

This suit was brought by Centennial Insurance Company, appellant, against J. N. Nutt, Commissioner of Insurance of Texas, since resigned, members of the State Board of Insurance of Texas, and the Treasurer and Attorney General of Texas to recover taxes paid under protest, such taxes being premium taxes assessed against appellant under the provisions of Art. 7064, Vernon’s Ann.Tex.Civ.St.

In a non-jury trial judgment was rendered that appellant take nothing by its suit.

The question presented is one of statutory construction. -We are required to determine the meaning of the words “amount it had invested” as used in Art. 7064 as applied to the facts of this case, which will now be stated.

Appellant Centennial, a New York corporation, is a capital stock fire and casualty company wholly owned by Atlantic, a New York corporation, both of said companies having been licensed to do business in the State of Texas prior to the year 1956 and at all times since that date. On December 7, 1956, Atlantic effected a duly authorized contribution to the surplus account of Centennial by means of an intercorporate transfer of certain securities, including both “Texas securities” and securities which could not qualify as Texas securities under Article 7064. The greater part. of the securities contributed were New York securities. The transfer by Atlantic was pursuant to Sections 351 and 362, Internal Revenue Code, 1954, as amended, a tax free contribution to the surplus of Centennial with no resulting gain or loss being recognized to the Atlantic. At the time of the transfer by Atlantic most of the securities transferred had a fair market value in excess of the original cost of the securities to the parent company, Atlantic.

In computing its 1963 premium tax appellant reported the amount it had invested in said Texas securities and non-Texas securities which had been contributed to its surplus, at the original cost of such securities to the parent contributor, Atlantic. Using such cost basis of the securities as its investment in those securities-for Texas gross premium tax purposes, Centennial claimed a premium tax rate for the year 1963 of 1.65% and paid its premium tax using that percentage.

The Commissioner of Insurance acting for the State Board of Insurance and the State of Texas took the position that the fair market value of the securities contributed to Centennial on the date of contribution in 1956 was the amount invested by Centennial in New York securities and Texas securities for the purpose of computing the premium tax rate under Art. 7064 and assessed a tax rate of 3.025% rather than 1.65%.

In the trial court appellant took the position that .for purposes of Article 7064, the amount Centennial had invested in said New York and Texas securities was the initial cost basis of the parent contributor Atlantic or, alternatively, zero dollars and not the fair market value of the stocks on the date of contribution by Atlantic to Centennial.

The relevant portion of Art. 7064 reads:

“Each such insurance organization shall also report to the Board of Insurance Commissioners on or before the first day of March of each year, the amount that it had invested on the 31st of December, preceding, in Texas securities as defined herein and the amount that it had invested on said date in similar securities in the State in which it had its highest percentage of admitted assets invested, * * * ”

The maximum tax levied on gross premiums by this statute is 3.85%, but provision is therein made for a reduced tax rate the basis of such reduction being the ratio between the amount invested by the taxpayer in Texas securities and the amount invested by it in non-Texas securities.

The purpose of these provisions is, of course, to encourage investment in Texas securities as defined by statute.

Appellant has six points of error but as we understand the record and the briefs the only question to be decided is the value to be attributed to the donated securities which value, under this record, is to be either (1) cost to the donor (2) fair market value at the date of donation or (3) cost to donee, zero; and that this question is one of law.

Appellant relies, primarily, upon an opinion of the Attorney General of Texas. This opinion, S-200, was given May 31, 1956,' and held that in computing the annual tax under Art. 7064 that .the book value of securities rather than its market value as of December 31st of the tax year should be used, the opinion using this language:

“It is our opinion that the terms ‘the amount of such investments’ and ‘had invested’ as used in Article 7064, supra, mean the initial amount of money or money’s worth used to purchase the security. The express purpose of the Act is to encourage, by offering a lower tax rate, those insurance carriers subject to the Act to make investments in Texas securities. If the market value of the securities, which fluctuate in value, is to be used in the determination of the amount of investments, the purpose of the Act would in a measure be defeated, in that the insurance carriers would always be in doubt as to whether they had invested sufficient funds in Texas securities in order to receive the benefit of a lower tax rate. Market value fluctuates and the market value of securities is often a question of opinion. We believe that the Legislature intended the amount the insurance carriers ‘had invested’ to be a certain and fixed amount. In fact, the purchase price paid for a Texas security is in aid of the financial economy of the State. An increase in the market value of the security would inure to the benefit of the insurance carrier only.
To hold that the market value of a security determines the amount invested would lead to absurd results.”

We agree with this opinion to the extent that the “Legislature intended the amount the insurance carriers ‘had invested’ in securities to be a certain and fixed amount,” not subject to the rise and fall of the market. We are not convinced, however, that such opinion is decisive of this case. That case did not involve a donation of securities ; ours does. That opinion involved only the cost of the securities to the taxpayer, not their cost to the transferor as well.

No one would question the extent of investment here if instead of donating the securities Atlantic had donated their market value to Centennial in cash and Centennial had immediately purchased the securities which it now has.

It is difficult to believe that the form of the transaction should have controlling effect.

Appellant also relies, by analogy, upon the Federal income tax rule which in determining the gain or loss in a sale of securities uses the initial cost as the basis. We believe this analogy inapposite. We are not here concerned with any gain or loss in the value of the donated securities.

Appellees rely upon the testimony of expert witnesses, one of whom testified:

“Well, I would say that as far as financial accounting generally, accounting and reporting generally, that it is well known and generally known that an asset received as a donation would be set up at the market value at the time of the donation.”

Similar opinions were expressed by the other experts, and text book authority of similar import was cited by one witness.

The trial court made a finding of fact consistent with these opinions. We believe the strongest position taken by appellant is that since the securities were donated to it it had no investment in them. Ap-pellees challenge the right of appellant to here rely upon this position because it was not relied upon in the protest filed by it under the protest statute. Art. 1.05, Title 122A, Taxation-General, V.T.C.S. We will not dwell upon this matter for the reason that assuming this contention to be properly presented we are of the opinion that the fair market value of the securities at the time of their acquisition by appellant and for which it paid no consideration is the criterion to be employed in ascertaining the proper tax rate under Art. 7064.

We base this decision primarily upon the testimony of the experts, alluded to above, which was accepted by the trial judge.

The parties concede that no authorities are to be found upon the question presented, nor have we found any.

The Court, in discussing the meaning of the word “income” in Trefry v. Putnam, 227 Mass. 522, 116 N.E. 904, L.R.A.1917F, 806, Mass., stated, “It is thus differentiated from capital or investment, which commonly means the amount of wealth which a person has on a fixed date.”

We believe this meaning of the word investment is consonant with its use in Art. 7064. The statute makes no mention of the source of the capital invested in securities nor of the manner of its acquisition. These matters were of no apparent concern to the Legislature. What did matter was the ratio of securities held by the taxpayer between Texas securities and non-Texas securities. This was the scheme of the tax reducing formula. If a taxpayer owned non-Texas securities, the purpose of the statute was to encourage him to convert these securities into cash and buy Texas securities. This could be accomplished by the conversion of securities purchased at their fair market value as well as those acquired by gift.

We believe that the purposes of Art. 7064 can be better achieved by the adoption of the fair market value rule. Some of the securities donated to appellant were acquired by the donor as long ago as 1920. Their value has increased. Conversely, appellees pose this illustration: If the original cost to the donor of securities later donated to its subsidiary was $10,000.00, and its fair market value at the date of the donation was $1,000.00, then it would be a little ridiculous to say that the subsidiary had invested $10,000.00 in such securities.

Appellees concede that the rule it supports may father manipulation of securities for tax reducing purposes under Art. 7064, but it nevertheless advocates adoption of such rule...

We are unable to detect error in the judgment of the trial court, failing which it is our duty to affirm. This we do.

Affirmed.


author: FRASER, Chief Justice.

text:
    S. F. HURLBUT, Appellant, v. L. B. LYONS, d/b/a Big State Tool Co., Appellee.
    No. 5759.
    Court of Civil Appeals of Texas. El Paso.
    July 6, 1966.
    Rehearing Denied Aug. 3, 1966.

      Fischer, Wood, Burney & Nesbitt and James P. Ryan, Corpus Christi, for appellant.
    Deaderick, McMahon & McKim and Robert B. Cox, Odessa, for appellee.
   OPINION

FRASER, Chief Justice.

This is an appeal from the District Court of Ector County, Texas, wherein the court overruled the plea of privilege presented by defendant, who is appellant in this appeal. This appellee, who was plaintiff in the trial court, set forth in his petition that he is a resident of Odessa, Ector County, Texas, and defendant is a resident of Corpus Christi, Nueces County, Texas. Plaintiff further alleged in said petition that the defendant, acting through his agent or agents, accepted for use certain oil field rental tools and equipment in accordance with a previous verbal order or request; that such equipment and tools were to be furnished by plaintiff; and that such were furnished and used by defendant, but said defendant had not paid for such rental and use. Defendant filed his plea of privilege alleging that there did not exist a proper written contract making Odessa, Ector County, Texas, the place of payment. It appears that some seven documents described as “delivery tickets” were issued by the plaintiff and at later dates, written invoices were issued by plaintiff and received by defendant. The record shows that the delivery tickets were signed by both parties, but did not specify a place of payment. The invoices, although received by the defendant-appellant, were not signed, but did specify Odessa, Ector County, Texas, as the place of payment.

Appellant maintains that because the delivery tickets did not specify any place of payment, no exception to the venue statutes existed, and further that appellee’s controverting affidavit was incomplete, improper and should have been stricken as being legally insufficient to authorize the introduction of evidence appertaining thereto and to justify the suit being maintained out of and away from defendant’s county of residence and/or business. The trial court overruled the defendant’s plea of privilege and he has perfected his appeal to this court. We affirm the action of the trial court.

We do not find error in the trial court’s action in overruling defendant’s motion to strike the controverting plea. We will not discuss this point further, as this motion seems to refer to the position taken by defendant on the merits of the motion, which we will discuss later. In short, the motion to strike seems to depend mainly on defendant’s contention that there was no contract specifying place of payment at Odessa, Ector County. Defendant further contends that the plaintiff’s controverting plea is not properly verified, but we cannot sustain this contention. Appellant’s first point is therefore overruled.

Appellant’s second and third points argue that because the invoices were not signed by anyone, the specifications contained therein that Odessa, Ector County, was to be the place of payment were meaningless and had no legal effect. We do not believe this position can be maintained as the record shows ' that as the equipment was delivered, a delivery ticket was issued, there being seven in all, each issued at different times. Then later the unsigned invoices were mailed to the appellant. Now it is true that no place of performance is provided in the signed delivery tickets. It can only be found in the unsigned invoices; but, as this record reveals, the delivery tickets seems to be a bookkeeping matter to show the place and time of receipt of the leased machinery or equipment. The invoices, of course, could not be issued until it had been determined by appellee, who was leasing the machinery to appellant, what the charges would be, depending, or course, on the time and nature of the use, and presumably on the condition of the returned equipment. Such invoices, as stated above, were forwarded to appellant. Although these invoices were not signed, we believe that they were an integral part of the transaction, and this for several reasons. First, they related to and followed the delivery tickets and set forth the amount appellee maintained that appellant owed for the use of this equipment. The delivery tickets by themselves merely set forth that the equipment was delivered. The invoices set forth the charges and as such, we believe were legally inseparable from and inter-dependent on the delivery tickets. Therefore, although the invoices were not signed, they were a part of the transaction, and when issued to and received and accepted by the appellant, became merged with the signed delivery tickets. Plaintiff-appellee, in his original petition, after describing the arrangement and mentioning the delivery tickets and the amount due, says in paragraph 3 as follows:

“That each of said agreements between Plaintiff and Defendant are additionally evidenced and confirmed by written invoices issued by Plaintiff and received, acknowledged and ratified by Defendant, such invoices being attached hereto as Exhibit ‘B’ and incorporated herein for all purposes as if set out in full.”

In his Findings of Fact and Conclusions of Law the trial court finds and holds as a matter of law that the contracts between the plaintiff and defendant were only partially created by the verbal orders given by defendant and the execution by both parties of the delivery tickets; that the contracts between the parties were each incomplete prior to receipt by defendant of the invoices corresponding to each particular delivery ticket; that each completed contract between the parties consisted of a delivery ticket as confirmed by the particular invoice pertinent thereto by reason of its date and the tools, equipment and services described thereon. We believe that the trial court was correct in such holdings. Drexler v. Bryan Bldg. Products Co., 374 S.W.2d 806 (Tex.Civ.App.); Harrison v. Facade, Inc., 355 S.W.2d 543 (Tex.Civ.App.); Dowdell v. Ginsberg, 244 S.W.2d 265 (Ft. Worth Civ.App., 1951, n. w. h.).

Appellant’s Points 4 and 5 relate to the merits of the controversy, in that they claim that the trial court erred in holding that there existed a contract between the parties payable in Ector County. These points must also be overruled for the reasons set forth above and for the reasons set forth hereinafter. The trial court found, and we believe correctly, that the defendants assented to, acquiesced in and ratified each and all of the unsigned invoices involved and the terms and provisions contained therein. The record shows that the various invoices were mailed by appellee to appellant over a period of many months, and that no objections were made during that time to the form or contents of said invoices; that in July of 1963, some eight months after the last invoice was mailed, appellee went to see appellant in Corpus Christi and went over each invoice in detail with appellant. -In the Statement of Facts there is testimony by Mr. Lyons, appellee, that in his conversation with Mr. Hurlbut, appellant, Mr. Hurlbut admitted that he owed for the invoices, and that Mr. Lyons and Mr. Hurlbut went over each invoice, item by item. This testimony does not seem to have been objected to. Then, several months later (November 21, 1963), the following letter was sent by Mr. Hurl-but to Mr. Lyons, said letter being designated as Plaintiff’s Exhibit IS:

“Mr. L. B. Lyons
Big State Tool Co.
P. O. Box 2024
Odessa, Texas
Dear Mr. Lyons:
I have appreciated your patience in regard to our account, and you are going to get your money. However, it seems every attempt I have made has been to no avail, but I am sure going to do my best to have it before the first of the year.
With kind personal regards, I remain
Yours very truly,
/s/ S. F. Hurlbut”

It is not contended that this letter applies to any other acount than the one involved here, and so we feel that the trial court was correct in his conclusion of law to the effect that appellant had ratified, acquiesced in and assented to the invoices and their Contents. In view of the fact that the invoices were a part of the transaction involving the delivery tickets, and we think an inseparable part, the discussion and ratification of these invoices is further evidence that appellant had consented to the provisions contained therein making them payable at Odessa, Ector County, Texas.

Summing up, the transaction presents the following picture: Appellant made arrangements with appellee to rent certain equipment. Various delivery tickets were received from time to time. After the use of the equipment had terminated, invoices were then forwarded to appellant indicating the amount owing for the aforesaid transaction or rental. Although the delivery tickets did not provide a place of payment, the invoices did, and as we have set forth above the delivery tickets and invoices were merged as inseparable parts of the transaction, and although the invoices were not signed, they were accepted and ratified and thereby given full legality by the appellant. Pallets, Inc. v. Stephens, 345 S.W.2d 783 (Civ.App., n. w. h. ); Harrison v. Facade, Inc., 355 S.W.2d 543; Harvey v. Bain, 140 Tex. 375, 168 S.W.2d 234; M. L. Witter Mfg. Corp. v. Kinetrol Company, 342 S.W.2d 809.

Appellee further urges that appellant never put any venue fact in issue because the appellee filed a verified petition which he contends contained the written contracts and which were not denied under oath. We believe this counter point of ap-pellee has merit and must be sustained. The trial court found that defendant did not deny under oath that he entered into the written contracts as alleged in plaintiff’s verified original petition. He then found, as a conclusion of law, that the plea of privilege should be overruled because defendant did not make any verified denial to the allegations of the written contract contained in plaintiff’s verified original petition, and further that such petition is prima facie evidence of the venue facts contained therein. We believe the trial court was correct in so holding. In a case decided by our Supreme Court, to-wit, Ladner v. Reliance Corp. (Tex.Civ.App.), 156 Tex. 158, 293 S.W.2d 758, the Court stated as follows:

“There are some situations in which the plaintiff is not required to prove all of his essential venue facts by independent evidence. Under our statutes and rules certain facts will be taken as admitted unless the defendant puts the same in issue by a verified pleading, and the plea of privilege does not constitute a verified denial of any allegation of plaintiff’s petition required to be denied under oath unless specifically alleged in such plea. See Rules 86 and 93, Texas Rules of Civil Procedure. When a venue fact is one which can be put in issue only by a verified pleading and the defendant does not interpose such a plea, the plaintiff is not required to prove the same.” Bailey v. A.R.A. Manufacturing Company, 285 S.W.2d 849 (Tex.Civ.App.); Renaud v. Simmons, 254 S.W.2d 418 (Tex.Civ.App.) ; M. L. Witter Mfg. Corp. v. Kintrol Company, 342 S.W.2d 809 (Tex.Civ.App.); Harvey v. Bain, 140 Tex. 375, 168 S.W.2d 234; Rules 93(h) and 86, Texas Rules of Civil Procedure.

Appellant’s points are all accordingly overruled and the decision of the trial court affirmed.


author: CHAPMAN, Justice.

text:
    A. E. SWIFT & SONS, CONCRETE CONTRACTORS, INC., et al., Appellants, v. SAM SANDERS, INC., Appellee.
    No. 7631.
    Court of Civil Appeals of Texas. Amarillo.
    July 5, 1966.

      Folley, Snodgrass, Calhoun & Kolius, Jerry R. Hollingsworth, Amarillo, Joe Bob Brown, Amarillo, of counsel, for appellants.
    Gowdy & Kirk, Littlefield, for appellee.
   CHAPMAN, Justice.

This is an appeal by A. N. Swift and W. L. Swift from a judgment rendered in a suit filed upon a sworn account by Sam Sanders, Inc., and tried to the court. Judgment was rendered for Sam Sanders, Inc. against W. L. Swift and A. N. Swift, jointly and severally, and a take-nothing judgment was rendered for A. E. Swift & Sons, Concrete Contractors, Inc., another defendant. W. L. Swift and A. N. Swift have perfected their appeal to this court by separate briefs with separate counsel. Findings of fact and conclusions of law were filed by the trial court and no application for additional or amended findings were made.

Since W. L. Swift’s Point No. 1 is unrelated to any points of A. N. Swift, we shall pass upon that point first. In such point contention is made that the trial court “ * * * erred in overruling appellants’ first motion for continuance because as a matter of law there was an abuse of discretion on the part of the trial court in failing to grant such motion.” Rule 252, Vernon’s Annotated Texas Rules of Civil Procedure, provides:

“If the ground of such application be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known; that such testimony cannot be procured from any other source; and, if it be for the absence of a witness, he shall state the name and residence of the witness, and what he expects to prove by him; and also state that the continuance is not sought for delay only, but that justice may be done; provided that, on a first application for a continuance, it shall not be necessary to show that the absent testimony cannot be procured from any other source.” (Emphases added).

No affidavit is shown in the record, but only an oral motion. The witness is one of the parties to the suit. The record indicates he had been ill from a nervous condition for some time prior to trial and had not appeared at any of the other numerous hearings, yet, no effort is shown in the record to take his deposition and no subpoena was issued for him by W. L. Swift. Thus, there is a lack of diligence to procure his testimony and no showing in the record of compliance with the rule as to what he would testify to or its materiality before the oral motion was overruled. We hold the trial court did not abuse its discretion in refusing to grant the oral motion for continuance. Poe v. Hall, Tex.Civ.App., 241 S.W. 708 (N.W.H.); Turner v. Atlanta Nat. Bank, Tex.Civ.App., 83 S.W.2d 454, affirmed Sharber v. Atlanta Nat. Bank, 130 Tex. 296, 109 S.W.2d 1042; Muldoon v. J. E. Bray Land Co., Tex.Civ.App., 171 S.W. 1027 (N.W.H.).

At least one Court of Civil Appeals has held that where an application for continu-anee is shown because of the absence of a party to the suit a more strict showing of good cause seems to be required. Goodwin v. American Nat. Bank of Shreveport, La., Tex.Civ.App., 236 S.W. 780 (N.W.H.).

The trial court herself stated: “Well, I expect the defendants are not surprised that he is not here since he has not appeared at the other hearings.”

Appellant W. L. Swift’s Point No. 3 and appellant A. N. Swift’s Point No. 1 constitute the same assertion of error; i. e., reversible error of the court in denying their pleas in abatement. Therefore, we shall discuss them together.

In 1946 a partnership in Amarillo was formed between A. E. Swift, the father, and his two sons, the two appellants herein, for the purpose of concrete contracting. In the early 1950’s the same three parties organized two corporations, A. E. Swift & Sons, Concrete Contractors, Inc., and A. E. Swift & Sons Transit Mix, Inc., with those three parties as the only original owners, stockholders, directors and officers of the corporations. The father was president of both corporations. W. L. Swift was “Secretary of the Treasury” and A. N. Swift was vice-president respectively of each, and both corporations and the partnership were all involved in concrete work in striving toward the same end, that of furnishing concrete construction.

A. E. Swift & Sons Transit Mix, Inc. shows to be the subject of involuntary bankruptcy in the United States District Court for the Northern District of Texas.

The court in its findings of fact found, inter alia, (1) the original obligation from which this account grew was and has been at all times, charged to A. E. Swift & Sons; (2) the original members of the partnership were A. E. Swift, W. L. Swift and A. N. Swift; (3) A. E. Swift died on or about March 1, 1964; (4) more than the amount sued on has accrued since May 1, 1962; (5) appellee delivered a great amount of materials to appellants over a period of several years; (6) A. E. Swift & Sons, Concrete Contractors, Inc. assumed the sum of $12,523.08 due to appellee by an instrument in writing dated August 12, 1963, and more than that amount has been paid since that date; (7) periodic payments have been made on said account, together with charges for material furnished over the same period; and (8) the claim is past due and unpaid and there is now due on the obligation the sum of $14,574.11.

The court concluded as a matter of law that W. L. Swift is liable for that portion of the debt that has accrued since May 1, 1962; that A. E. Swift & Sons, Concrete Contractors, Inc., is not liable to the ap-pellee for any amount; that W. L. Swift and A. N. Swift, as surviving members of the partnership, are liable for the full amount of the debt; and that Sam Sanders, Inc. should recover from W. L. Swift and A. N. Swift, jointly and severally, the sum of the judgment rendered, with interest from the date of final judgment.

By their pleas in abatement appellants assert the suit was required to be abated for the reason, that appellee’s filing in the bankruptcy court of a claim on the same account, it made an election of remedy. A. N. Swift argues that the claim constitutes the filing of a prior suit “ * * * against another party,” and “ * * * this admission against its interest of having filed the prior suit against another party should bind it to seeking its remedy solely from that party in the bankruptcy court.” W. L. Swift argues “* * * appellee having filed in the bankruptcy court a claim on the same account against the other corporation has made an election of remedy as to which party to sue.”

There is introduced into the record a cardboard box twenty-four inches long, twelve-inches wide and approximately six-inches deep filled with tickets that appear to total several thousand showing the materials were sold through the years to Swift & Sons. The inventory sheets of appellee introduced into evidence for the periods under consideration corresponding to the ticket numbers show the materials were delivered to A. E. Swift & Sons. The tickets show the materials represented by them were received, and they are signed by different individuals. There is no evidence to show by whom these individuals were employed, but the tickets, as heretofore stated, were made out to Swift & Sons. W. L. Swift as a witness admitted:

“Q. You received bills from Sam Sanders, Inc. addressed to A. E. Swift & Sons, didn’t you?
A. They received those in New Mexico, yes, at Clovis.”

He also testified that after the corporations were formed their bank account was still in the name of A. E. Swift & Sons and all three of them had authority to write checks on it, and did write checks on it. He also said:

“Q. And after these corporations were organized, what, if anything was done differently with reference to the way the business was carried on?
A. Nothing except the business we did in Mexico, my father handled as long as he was alive.”

Each appellant cites one case separate from the other for their respective contentions that the court committed reversible error in failing to sustain their respective pleas in abatement. Each case appears clearly distinguishable from the instant case.

Perkins Dry Goods Co. v. Dennis, Tex.Civ.App., 54 S.W.2d 1078 is cited by W. L. Swift for its contention. In that case the plea was for the purpose of staying prosecution until the defendant’s application for discharge in bankruptcy had been acted on by the bankruptcy court. The subject of bankruptcy, Dennis, was the same individual against whom judgment was sought in the state court, while in our case the subject of bankruptcy was A. E. Swift & Sons Transit Mix, Inc. and those proceeded against in state court are the survivors of the partnership. Additionally, appellee has pleaded that any recovery allowed on its claim in bankruptcy would be credited to the judgment in state court.

A. N. Swift has cited as his authority for abating the case in state court Arroyo-Colorado Nav. Dist. of Cameron and Willacy Counties v. State Nat. Bank of Brownsville, Tex.Civ.App., 90 S.W.2d 881 (writ dism.). That case appears to be even less in point on the facts of our case. That case did not involve a claim in bankruptcy court not acted upon, but a judgment in state court upon which a substantial recovery had been made against the receiver of Merchants National Bank and sureties on a depository bond. The suit abated was a tort action against one of several alleged tort feasor banks for collusion with the defunct bank for a more favorable rate of interest on the depository funds of the plaintiff. The court held an election of remedies was made when the plaintiff sued and recovered against the receiver and sureties on the bond of the defunct bank.

Since we have ourselves been unable to find a case directly in point on the facts in the instant case we must rely on general principles of law.

The doctrine of election of remedies is not a favorite of equity, and its scope should not be extended. It is applied only where elements of estoppel are present or where inconsistency in claims asserted amounts to stultification.

An erroneous selection of a tribunal does not constitute an election of remedies and the bar to a subsequent suit in a court of competent jurisdiction.

A party is not concluded by selection of one of two remedies unless made with knowledge or means of knowledge of facts.

A litigant’s supposition that he had a particular remedy, and his effort to enforce it does not constitute an election of remedies, unless the remedy, in fact, existed.

Having billed all materials through the years delivered both in New Mexico and the few delivered in Texas to Swift & Sons and then learning the same parties were involved in a bankruptcy proceeding, it is understandable that appellee did not know which tribunal to go to for recovery. By filing a claim in bankruptcy and then filing suit against the survivors of the partnership, it is obvious that any selection ap-pellee made was not with knowledge or means of knowledge of the facts. Further, if a remedy did not in fact exist in the bankruptcy proceedings (and there is no evidence it did) then its supposition that it had a claim and its filing of one did not constitute an election of remedies under the general rule above stated.

The burden was on appellants to establish their pleas in abatement and we believe they failed to make any showing that appel-lee had knowledge or means of knowledge of the inter-related operations between the partnership and the corporations. Then, the general rule that an erroneous selection of a tribunal does not constitute an election of remedies and the bar to a subsequent suit in a court of competent jurisdiction would preclude the right to abate the cause under the facts in our case, in view of the fact that the materials for which payment is sought were delivered to Swift & Sons, the partnership. There is not any evidence in the record that any claim made in the bankruptcy court against the corporate bankrupt has been paid or that any injury has been done to an innocent party. Accordingly, we hold the trial court was correct in denying the pleas in abatement.

W. L. Swift’s Point No. 2 is not briefed and Points 2 through 22 of appellant A. N. Swift are not briefed. Therefore, we may assume such points are waived. McClanahan v. Cook, Tex.Civ.App., 401 S.W.2d 352 and the rules and authorities there cited.

The judgment of the trial court is affirmed.

      . Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377; Liberty Mutual Ins. Co. v. First Nat. Bank in Dallas, 151 Tex. 12, 245 S.W.2d 237.

      . In re Rose, 5 Cir., 39 F.2d 242 and eases cited therein.

      . Railroad Commission v. Shell Oil Co., Tex.Civ.Ap., 170 S.W.2d 568.

      . Slay v. Burnett Trust, supra.

      .Schwarz v. National Loan & Investment Co., Tex.Civ.App., 133 S.W.2d 133 (error ref.); Breland v. Guaranty Building & Loan Co., Tex.Civ.App., 119 S.W.2d 690 (writ ref.).


author: CHADICK, Chief Justice.

text:
    J. B. LAPSLEY et ux., Appellants, v. The STATE of Texas, Appellee.
    No. 7718.
    Court of Civil Appeals of Texas. Texarkana.
    July 5, 1966.
    Rehearing Denied July 26, 1966.

      Mike McKool, McKool & McKool, Wayne O. Woodruff, Dallas, for appellants.
    Waggoner Carr, Atty. Gen., Samuel D. McDaniel, Asst. Atty. Gen., Carroll Graham, Asst. Atty. Gen., Austin, for appellee.
   CHADICK, Chief Justice.

This is an eminent domain case. By stipulation the only issue to be determined in the trial court was “the market value of the property taken and damages to the remaining land, if any.” Three special issues in the Carpenter case pattern were submitted and on the jury’s response a judgment was rendered awarding $365,927.20 to J. B. Lapsley and wife, Allie N. Lapsley, the appellants, and vesting in the State of Texas 416,159 square feet of land at Zangs Boulevard and Sanger Street in the City of Dallas, Texas. The judgment of the trial court is modified and affirmed.

Big D Outdoor, Inc., owned a billboard located on the land appropriated. This company was made a party to the initial condemnation proceedings and its damage was assessed at $350.00 and an award of that sum was made to it by Special Commissioners appointed to assess damages occasioned by appropriation. The company became a party to this lawsuit when an appeal from the Commissioners’ decision and award was perfected. Before trial of the case on appeal Big D Outdoor Inc., filed a disclaimer of further interest in this proceedings and recited that in settlement the State of Texas had paid it the sum of $350.00. Prayer was for dismissal from the pending lawsuit. An order of dismissal was entered over the objection of the Lapsleys. This order and its effect is the subject of the appellants’ first point of error.

The court’s action in dismissing Big D Outdoor, Inc., is, the appellants say, an interposition that prevented the jury from exercising its function of determining the fair market value of the land appropriated, including all estates and interest therein, and constituted an arbitrary apportionment of the damages resulting from the State’s appropriation of the land. The record as a whole, considered in detail, does not show this action harmed the appellants; although dismissal of Big D Outdoor Inc., considered out of its frame of reference, may ostensibly have had the consequences charged, a comprehensive and penetrating examination reveals such an effect to be an apparition without substance.

The record of the trial court proceedings contains no proof of the nature, value, or existence of a lease, or other interest in the land, vested in or claimed by the billboard company. The issues for trial were by stipulation reduced to “ * * * the market value of the property taken and damages to the remaining land * * The issues submitted required the jury to determine the full market value of the land taken. The jury responded by doing so. The full value of the land, which necessarily included the value of all estates and interest therein shown by the evidence, was awarded wholly to the Lapsleys. In the trial court the case was conducted in accordance with the damage stipulation referred to and without reference to. or evidence respecting the Big D Outdoor Inc., and other omitted parties or any interest omitted parties might then or theretofore have had or asserted in the land.

A party is permitted by Rules 163 and 164, Vernon’s Ann. Texas Rules of Civil Procedure, to withdraw from a suit when no prejudice results to the adverse party. The preceding statement of the facts and circumstances of this case show that Big D Outdoor Inc.’s withdrawal did not prejudice the Lapsleys in any way. The suit was tried upon the theory that the Lapsleys owned the property and every interest and estate into which it might be subdivided. They were awarded a judgment for the total value of the land appropriated, as the jury found that value, without reduction by apportionment of a part to other claimants. The State necessarily absorbed the amounts paid to Big D Outdoor Inc., the lien holders, etc., under the judgment entered ; with no part deducted from the Lapsley award. No harm to the Lapsleys having resulted the point is overruled. Rule 434. The appellants maintain that certain rules expressed in Longino v. State (Tex.Civ.App.), 385 S.W.2d 901, Wr. Ref., N.R. E.; and Fort Worth Concrete Company v. State (Tex.Sup.), 400 S.W.2d 314, are applicable and the action is reversible error. The procedure and facts dealt with in those cases, and the posture of the parties, presented questions distinctly different from the problem here. These cases are distinguishable.

The subject of Points of Error Second and Third is unauthorized communication made to certain jurors. A newspaper, The Dallas Times Herald, in its first edition on Monday, April 12, 1965, off press at noon, carried two articles the appellants claim to be harmful to them. Counsel for appellant became aware of these stories a short time after their publication and the same afternoon of their appearance filed a motion for mistrial, although it was not then known whether or not the published stories had come to the attention of the jurors. After hearing the motion the trial judge and counsel for all parties entered into a discussion. Counsel for the Lapsleys declared that any instruction at that point in the trial would emphasize the stories and the court acceded to counsel’s argument that no instruction should be given, but did overrule the motion for mistrial and continued with the trial.

Subsequent to jury verdict, but prior to judgment, appellants filed a second motion for mistrial. The grounds of the second motion was that a juror, who later became foreman of the jury, read aloud some part of one of the newspaper stories in the presence of three other jurors. The juror who testified to this occurrence, and the only juror testifying on the motion, did not hear the story read in its entirety, he walked away while the reading was in progress. This juror was asked what the story said “in regard to whether the owners were asking too much or too little for their property?” He replied, “I didn’t hear that part of it. I left.” In an affidavit he made prior to testifying is this sentence: “This article said that the county was running out of funds in purchasing right of way on Highway 67, and the owners were asking too much money for their land.” A segment of Zangs Boulevard is the designated route of U. S. Highway 67 at a point south of the appropriated property. The distance between this property and the highway is not shown.

The tenor of the article read, or partly read, in the presence of the jurors, was that Dallas County Commissioners were having to pay surprisingly high prices for undeveloped right of way along U. S. Highway 67. Length makes it impractical to reproduce the story verbatim. It said that valuations were made by state appraisers, and the state and county shared equally in the cost. Listed was four small tracts and the amount paid for them. The story reported that some officials feared that a three million dollar bond issue voted for the U. S. 67 Highway project might be exhausted by high land cost. However, the County Judge was said to feel sufficient money was on hand for completion. Two commissioners were quoted with respect to $44,500.00 paid for a specific .718 acre tract; collectively, they said it seemed too high. The County Judge mentioned that land cost was increasing rapidly, and that speculation had pushed up values along U. S. Highway 67. The remainder of the article reported the relatively modest valuations and taxes produced by several of the tracts mentioned.

It was not shown any juror read one of the articles cited, and there is no proof the other was read in its entirety. The jurors did not individually comment upon or as a body discuss the story or its subject matter. The court charge admonished the jury to confine discussions strictly to the evidence admitted, and not to mention personal experience, discuss any other case, or communicate to other jurors personal knowledge or information about the facts of the case. Before a judgment may be reversed for jury misconduct it must be established (1) that misconduct occurred and (2) that on review of the record as a whole it appears that injury probably occurred to the complaining party. Rule 327, V.A.T.R.; Compton v. Henrie (Tex.Sup.1963) 364 S.W.2d 179. When the record is considered nothing is found to indicate that the newspaper story influenced the jury or its verdict. The points are overruled. Navar v. State (El Paso Civ.App.1961, no writ), 344 S.W.2d 188.

The appellants based their Fourth, Fifth and Sixth points of error on the action of the trial court in excluding testimony tendered to prove that L. E. Clark, District Administrative Engineer, Texas Highway Department, found and recommended as the fair market value of the Lapsley’s appropriated property and damage to that remaining, a sum in excess of $408,000.00. The trial court ruled that such engineer’s valuation recapitulation sheets, prepared in his office and signed by him, and a Highway Department manual on land acquisition policies and procedures governing Department employees in the determination of values were not available to counsel for the Lapsleys for inspection or introduction in evidence.

This quotation from the argument made under these points of error in the appellants’ brief isolate appellants’ principal complaint and reduces somewhat the scope of the points of error, to-wit:

“In fact, defendants made it clear that they were not seeking nor attempting to. introduce into evidence any of the appraisal reports of the independent appraisers of petitioner as shown by the following:
“‘Mr. McKool: * * * I don’t want any of the appraisal reports, Your Honor, of their appraisers. I have just asked for the recapitulation sheets by their staff reviewing appraisers. That’s all I’m asking for. And I am not asking — at no time during this testimony are we asking for their appraisal reports of their fee appraisers.’
“The court interpreted the attempt to introduce this testimony as not being admissible under the rules of discovery, and therefore, would not be permitted into evidence, and defendants even pointed out ‘in the Biggers case, the court said —it wasn’t discovery. We were ready to put it on in the trial of a case. There is a difference between discovery and wanting tó put on some evidence in the trial of a case. We are not trying to discover. We want to put on evidence to this jury.’ ”

The appellants contend the recapitulation sheets and the Department manual were admissible as admissions against interest, as rebuttal testimony and for impeachment purposes; and the court’s refusal to make the data available to them was a denial of due process.

The recapitulation sheets and the manual were not in appellants’ possession and therefore were not tendered by them. The witness, L. E. Clark, District' Administrative Engineer, apparently had the recapitulation sheets and manual with him on the witness stand, but the trial judge sustained the State’s objection and refused to order either to be tendered into evidence or delivered to the appellants for inspection. The nature of appellants’ demand can not be ignored. While appellants argue to the contrary, the demand for production of this data is an exercise of the discovery process. Appellants’ brief leaves the impression that they concede that appellants were not entitled to compel production in a discovery proceeding. Such concession respecting the recapitulation sheets seems inescapable as the sheets clearly appear to come within the provisions of Rule 167 granting documents of such nature immunity from discovery. The statement of counsel in the quotation from the brief limits appellants’ claim of harm to a denial of a right to introduce the recapitulation sheets in evidence as an admission against interest. The implication of the quoted statement is that the other data was wanted for examination and use if found useful.

The trial court had no power to aid the Lapsleys in a search for evidence or compel production of documentary material in support of their case except in the mode provided by statute or rule. Messner v. Giddings, 65 Tex. 301; Hastings Oil Company v. Texas Company, 149 Tex. 416, 234 S.W.2d 389. Appellants did not apply for a subpoena duces tecum or follow discovery procedures to obtain or inspect the recapitulation sheets1 and manual. In the absence of procedures invoking the court’s discovery and related powers the trial judge had no authority to require, during the course of cross examination, that the witness under examination produce these instruments either for the Lapsleys’ inspection or for introduction in evidence.

There is still another reason why the action of the trial court was proper with respect to the recapitulation sheets. Art. 3264, Vernon’s Ann.Tex.Civ.St., requires the condemning authority to negotiate settlement of damages with owners of condemned property as a prerequisite to the exercise of the power of eminent domain. This statute contemplates good faith negotiation. Such negotiation would require an effort by the condemnor to investigate all aspects of value and prepare work sheets and recapitulation sheets when necessary or convenient in furtherance of the statutory settlement objective. The recapitulation sheets are a part of and entwined in this negotiation and settlement process and as such are not admissible as an admission against interest, nor for any purpose appellants suggest. City of Houston v. Derby (Galveston Tex.Civ.App.1948, er. ref.), 215 S.W.2d 690. The appellants have not been deprived of due process.

Finding no error requiring reversal, all of appellants’ points are respectively overruled and appellee, the State of Texas’, cross-point complaining of the trial court’s award of costs to the Lapsleys will be considered. Agents for the State negotiated with the Lapsleys for the acquisition of the appropriated land as required by Art. 3264. The State offered to pay in excess of $408,000.00. The Lapsleys declined the offer. The State then instituted condemnation proceedings. The Special Commissioners awarded the Lapsleys $264,-200.00. The judgment of the court below awarded the Lapsleys $365,927.20. The State’s initial settlement offer exceeded the award of the Commissioners and the judgment of the court. Art. 3267 provides that under such circumstances costs shall be paid by the owner of the property. The costs in the trial court and of this appeal must be taxed against the Lapsleys.

The original opinion herein is withdrawn and the foregoing substituted for it; appellants’ motion for re-hearing is overruled and the judgment of the trial court, modified as to cost, is affirmed.

      . 126 Tex. 604, 89 S.W.2d 194, 979.

      . The Special Commissioners’ Report filed prior to trial shows awards made to tax lien holders, the City and County of Dallas, and several witnesses for sums totaling $1,526.61, in addition to the award made to Big D Outdoor, Inc., and the Lapsleys. The State deposited the total of the Commissioners’ award in the registry of the court and the lien holders and witnesses withdrew their apportioned share. The suit on appeal proceeded in disregard of these recipients of award in the prior proceeding, (the lien holders and the witnesses), and without objection to their absence.

      . “ * * * written communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrenee or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of such claim or the circumstances out of which same has arisen.”


author: DIXON, Chief Justice.

text:
    Lawrence BLACK, Appellant, v. FRANK PAXTON LUMBER COMPANY, Appellee.
    No. 16733.
    Court of Civil Appeals of Texas. Dallas.
    May 27, 1966.
    On Motions for Rehearing June 24, 1966.
    Rehearing Denied July 22, 1966.

      Lee Arnett, San Angelo, for appellant.
    Ungerman, Hill, Ungerman & Angrist and A. L. Vickers, Dallas, for appellee.
   DIXON, Chief Justice.

Appellant Lawrence Black has appealed from a summary judgment against him in a suit on a promissory note.

On August 24, 1964 appellant signed a note for $12,124.92 payable to appellee Frank Paxton Lumber Company, a corporation, in monthly installments of $2,000 each. The note expressly provides for accelerated maturity upon failure to pay any installment when due, for reasonable attorney’s fee and for waiver of demand and presentment. It also provides that partial payments made before or after maturity shall be without prejudice to the holder.

Appellee alleges that appellant defaulted in the payment due on October 5, 1964 whereupon appellee declared the entire balance due in the sum of $10,000 plus interest; and that $3,000 is a reasonable attorney’s fee.

In his answer appellant alleges under oath that there was not a consideration for the note; that at the time of the execution of the instrument Lawrence Black Rentals, Inc., was indebted to appellee in the principal amount named in the note; that he executed the note for the purpose of obtaining more liberal terms of payment for the benefit of the corporation; that he received no consideration or benefit himself as a result of his execution of the note; that it was the agreement and understanding of the parties that appellant was signing in his capacity as President of Lawrence Black Rentals, Inc. and not in his individual capacity; and that the corporation was to be solely liable on the note. Appellant denied that $3,000 was a reasonable attorney’s fee.

Summary judgment was rendered in favor of appellee for $12,138.33, which includes interest and an attorney’s fee of $1,500.

The note is regular on its face. Lawrence Black Rentals, Inc. is nowhere mentioned in the note. It was signed by Lawrence Black alone.

Attached to appellee’s motion for summary judgment are two affidavits executed in the form prescribed by Rule 166-A, Texas Rules of Civil Procedure. One is by E. L. Medford, appellee’s credit manager. He swore that the amount due was $10,000 and the note was currently held and owned by appellee.

The other affidavit was by Jay S. Ficht-ner, a practicing attorney in Dallas, Texas, who swore that it was his opinion, based on information furnished him by appellee’s attorney as to the work done, that $3,000 was a reasonable attorney’s fee.

Appellant did not file any controverting affidavits.

In his first and second points appellant asserts that want of consideration is a fact question in this case, as is his liability in his individual capacity. We do not agree. Art. 5933, Sec. 25, Vernon’s Ann.Civ.St., provides that value is a consideration and a pre-existing debt is value. Section 29 provides that an accommodation party is one who signs a negotiable instrument for the purpose of lending his name to some other person; and such a person is liable on the instrument to a holder for value notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party. In this case it is judicially admitted in appellant’s pleadings that the corporation was indebted to appellee in the sum of $12,124.92, and that appellant signed the note in order to obtain more liberal terms of payment for the corporation, thereby lending his name to the corporation. See Reed v. Buck, 370 S.W.2d 867 (S.Ct.); Camp v. Dallas Nat’l Bank, 36 S.W.2d 994 (Comm.App.); Parsell v. Canadian State Bank, 298 S.W. 664 (Tex.Civ.App., writ ref.).

Appellant claims that his answers to appellee’s interrogatories under Rule 168, Texas Rules of Civil Procedure constitute evidence in support of his contentions as asserted in his first two points. His self-serving answers are not binding on appellee. Answers elicited under Rule 168 may be used only against the party answering the interrogatories. The rule itself so provides. See also Halbert v. Sylestine, 292 S.W.2d 135 (Tex.Civ.App., no writ hist.). Appellant’s first two points are overruled.

In his third point on appeal appellant says there is a fact issue on the reasonable amount of attorney’s fees. This point is well taken.

Mr. Jay S. Fichtner is a reputable attorney of more than ten years’ practice. However, his opinion as to a reasonable attorney’s fee is based on hearsay. We quote from his affidavit:

“I have been advised by the attorney for the Plaintiff that he has performed the following in connection with this lawsuit:
“1) Preliminary investigation prior to litigation.
“2) Preparing and filing of Original Petition and follow-up on service of citation.
“3) Preparation of Request for Admissions.
“4) Preparation and filing of Motion to Compel Defendant to answer Interrogatories.
“5) Preparation and filing of Motion for Summary Judgment and necessary affidavits.
“The principal amount sued for is $10,000.00.
“ * * * it is my opinion that based upon all of the above information, a reasonable attorney’s fee for the services rendered * * * would be the sum of $3000.00/100.” (Emphasis ours.)

The trial court allowed a fee of $1,500.

It is obvious that Mr. Fichtner’s affidavit is based solely on what he had been “advised by the attorney * * Nowhere in the record, for example, do we find any evidence as to the time, or the amount of work spent by the attorney in his preliminary investigation, or in accomplishing the others of the five named performances.

Appellee says that the affidavit is in due form and is entitled to be accepted, Himes v. American Home Fence Co., 379 S.W.2d 290 (S.Ct.); especially since appellant did not challenge the sufficiency of the affidavit in the trial court. Lobit v. Crouch, 293 S.W.2d 110 (Tex.Civ.App., ref. n. r. e.).

In the Himes case, a summary judgment case, our Supreme Court affirmed the judgment of the Court of Civil Appeals, which had reversed the trial court on the very issue of attorney’s fee.

In the Lobit case we are not informed as to the nature of the alleged insufficiencies of the challenged affidavits. We suspect that they were irregularities as to form, not of substance.

In any event, we hold that the burden is on the moving party in summary judgment proceedings to show that there is no material issue of fact before the court. If he fails to do so he is not entitled to summary judgment. Gardner v. Martin, et al., 162 Tex. 156, 345 S.W.2d 274. What is a reasonable attorney’s fee is ordinarily a question of fact. The issue cannot be resolved by resorting to hearsay evidence. The general rule is that hearsay evidence is no evidence at all. See 24 Tex.Jur.2d 51 and cases there cited. The defect in the affidavit is therefore one of substance, not merely of form. Appellant’s third point is sustained.

In his fourth and fifth points appellant contends that there is a fact issue as to the date of maturity of the note, and as a result the court awarded compound interest. There is no merit in these points. The note expressly provides for waiver of demand and presentment. See Art. 5937, Sec. 82, Subsection 3, V.A.C.S. And ap-pellee’s acceptance of a payment after it had declared the whole balance due did not waive the acceleration of maturity. Fisher v. Wood, Tex.Civ.App., 119 S.W.2d 114 (writ dism.) ; Motor Finance Co. v. Wolff, 387 S.W.2d 129, 131 (Tex.Civ.App., no writ hist.). The fourth and fifth points are overruled.

Because the record discloses a material fact issue as to the amount of attorney’s fee, the judgment will be reversed and the cause remanded for another trial.

Reversed and remanded.

On Motions for Rehearing.

Both appellant and appellee have filed motions for rehearing. Both motions are overruled, except as hereinafter indicated.

Subject to our ruling on its motion for rehearing appellee has filed a voluntary re-mittitur of $1,500, the amount of the attorney’s fee allowed in the judgment, has waived the allowance of any attorney’s fee, and asks that the judgment be reformed by removal of the said $1,500 as a portion of the amount for which appellee recovered judgment in the trial court; and that as so reformed the judgment be affirmed.

In our original opinion we overruled all of appellant’s points on appeal except Point No. 3. The latter related only to the allowance of the attorney’s fee of $1,500, which we found to be reversible error. The remittitur has removed the error. Appellee is entitled to have the judgment reformed and affirmed. Owen Development Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640; Hill v. Texas, New Mexico & Oklahoma Coaches, Inc., 153 Tex. 581, 272 S.W.2d 91; Rule 439, Vernon’s Texas R.C.P.

Our judgment reversing the judgment of the trial court and remanding this cause for another trial is set aside. The judgment is hereby reformed so as to allow appellee recovery for the amount of its debt in the sum of $10,638.33 with interest thereon at the rate of six per cent from November 1,. 1965. Costs will be divided equally between appellant and appellee.

The judgment as reformed is affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Lillian Edith BROWN, Appellant, v. AMERICAN AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 4503.
    Court of Civil Appeals of Texas. Waco.
    June 23, 1966.
    Yarborough, Yarborough & Johnson, Don B. Hinds, Dallas, for appellant.
    Strasburger, Price, Kelton, Miller & Martin, Fred K. Newberry, Royal H. Brin, Jr., Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is a compensation case. Plaintiff alleged total permanent loss of use of her left leg from an accident on August 1, 1964. Trial was to a jury which found:

1) Injury to plaintiff’s leg on August 1, 1964 has resultfed in loss of use of said left leg.
2) Such loss of use of plaintiff’s left leg is total.
3) Such total loss of use V>f plaintiff’s left leg is temporary.
4) Such total loss of use of plaintiff’s left leg has continued or will continue for “2 days or 7 weeks.”
5) The beginning date of such total loss of use of plaintiff’s left leg was August 1, 1964.
6) Plaintiff will suffer partial loss of use of her left leg.
7) Such partial loss of use will be temporary.
8) Such partial loss of use of plaintiff’s left leg has continued or will continue for “18 weeks S days.”
9) The beginning date of such partial loss of use was September 22, 1964.
10) The percentage of such partial loss of use of plaintiff’s left leg Is 20%.
11) Plaintiff’s loss of use of left leg was confined to left leg below the knee.

The trial court entered judgment for plaintiff for “$377.23 which represents 7 weeks and 2 days of accrued compensation for total disability of the left leg below the knee, beginning August 1,1964 and 18 weeks and S days of 20% temporary partial disability of the left leg below the knee beginning on September 22, 1964, and interest on past due installments * *

Plaintiff appeals, contending the jury’s answer to Issue 4 finding: “2 days or 7 weeks” temporary loss of use, is so ambiguous and uncertain that a judgment cannot be predicated thereon. Plaintiff has brought forward no Statement of Facts.

In the absence of a Statement of Facts, it must be presumed on appeal that the evidence supports the findings and judgment of the trial court. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683; First Nat. Life Ins. Co. v. Herring, CCA (n. w. h.), 318 S.W.2d 119; Ehrhardt v. Ehrhardt, CCA, Er.Ref., 368 S.W.2d 37.

Defendant’s counsel on oral argument, however, conceded a mathematical error in computation of the judgment in the amount of $21.00.

The judgment is reformed to $398.23, and as reformed, is affirmed. Costs of appeal assessed against appellee.

Reformed and affirmed.