author: SELLERS, Justice.

text:
    Mrs. Elizabeth TURNER, Appellant, v. L. J. TURNER et al., Appellees.
    No. 79.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 19, 1964.

      E. C. Wellborn, Henderson, C. F. Well-born, Gladewater, for appellant.
    Goldon Wellborn and Rex Houston, Henderson, for appellees.
   SELLERS, Justice.

This is a will contest in which the will of Arthur Turner, deceased, is sought to be probated. The instrument dated July 6, 1955, was originally offered for probate in the County Court of Rusk County, Texas, by the Proponent, Elizabeth Turner, the surviving wife of Arthur Turner. Contestants, L. J. Turner, Mozelle Turner Baker, Marie Turner Wayland and Annie Turner Tucker, the surviving children of Arthur Turner by a previous marriage contested the probate of the instrument alleging, in addition to a general and special denial, undue influence on the part of Mrs. Elizabeth Turner. They specially denied that the instrument offered for probate was the will of Arthur Turner.

The instrument offered for probate was dated July 6, 1955. Under its terms decedent bequeathed all of his property to his wife, Elizabeth Turner, reciting therein that he was not unmindful of his four children, but that he had already given to each of them a just share of his life’s earnings.

After a trial in the County Court judgment was entered admitting the will to probate. Contestants duly perfected their appeal to the District Court of Rusk County and by amended petition and in addition to a general and special denial alleged undue influence on the part of the Proponent, and further alleged that the instrument offered for probate “was revoked by a later will which was duly executed by Arthur Turner, deceased, according to the solemnities of law.”

The case was tried before a jury and in response to the two Special Issues submitted by the court, the jury found (1) that the will was procured by undue influence on the part of Elizabeth Turner, and (2) also found that decedent, Arthur Turner, had executed a subsequent will dated January 24, 1962, intending to revoke the former will. Based upon the verdict, the trial court entered judgment denying probate of the instrument to which the Proponent, Elizabeth Turner, duly perfected this appeal.

In substance, Proponent contends that the judgment should be reversed because (1) there is no evidence, or at least insufficient evidence, to sustain the jury’s verdict; (2) the alleged errors of the court in admitting certain testimony over Proponent’s objection; (3) error by the court in failing to require one of Proponent’s witnesses be brought to court, and (4) because of the alleged error of the court in admitting testimony concerning revocation of the will without proper pleadings.

Proponent’s 1st, 2nd and 4th Points assert that there is no evidence, or at least insufficient evidence, to support the jury’s findings of undue influence and revocation. These points will require a brief review of the record.

Before discussing the testimony, it should be pointed out that prior to trial Contestant, L. J. Turner, conveyed to his three sisters all of the right, title and interest which he could have or might have in the estate of his father, Arthur Turner, by inheritance or otherwise, and disclaimed any interest or right to his estate from any source. He then moved to be dismissed as a party to the suit. The court granted the motion and dismissed L. J. Turner from the case.

Contestants produced testimony showing that Elizabeth Turner and Arthur Turner were married in 1947 and although occasionally separated lived together until his death on September 19, 1962; that his marriage to Elizabeth Turner was his fourth marriage subsequent to his divorce from Mattie Lou Turner, the mother of Contestants ; that despite his domestic difficulties Arthur Turner had always remained kind and affectionate to his children and grandchildren; that although the will recited gifts to his children, no substantial gifts had been made, but he had at various times made loans and advances to all of his children. The testimony further revealed that Mr. Turner had suffered several heart attacks throughout the years commencing in 1947 and had otherwise been in poor health since that time. Deceased’s son, L. J. Turner, testified as to numerous conversations with his father after his marriage to Elizabeth Turner in which his father often expressed his displeasure with Elizabeth Turner’s attempts to influence him in the disposition and control of his property. According to the testimony of both L. J. Turner and Jack Glen Crawford, a grandson, Arthur Turner called them to his home on January 24, 1962, and while there he stated to them that he had requested them to come to his home during Mrs. Turner’s absence because he desired to explain to them, in the absence of his wife, how he wanted his estate handled. He then explained to his son in the presence of Crawford that he had theretofore on that date signed a new will which had been prepared by Mr. H. H. Wellborn, an attorney. He stated that Wellborn and Crawford had been to his home that morning and that he had signed the will in the presence of Wellborn and Crawford as witnesses. He said that he had revoked the previous will and that he wanted the will that he had signed that morning to be his last will. He said he wanted to leave all of his property to his children; that his only reason for making the previous will in 1955 was because his wife, Elizabeth Turner, had threatened to leave him unless he willed her all of his property. He said, “she would kill me if she knew that I was changing my will * * He then took the will from a nightstand beside the bed and asked his son to read it so he could hear it, which he did. According to the testimony of both of these witnesses, the will recited that Arthur Turner was above the age of 21 years; was of sound mind and that he was revoking all prior wills signed by him and that all of his estate was to go to his four children. They also testified that he then told them that he had never been satisfied with the first will because he felt like he had been forced to sign it to keep her from leaving him, further stating that the 1955 will was not in his possession and that he therefore wanted to be sure that they knew he had revoked it and replaced it with the subsequent will and requested them to see that his wishes were carried out.

L. J. Turner further testified that on this occasion his father told him that within a short time after he and Elizabeth were married “she started hounding him day and night for a will, wanted him to make her a will leaving everything to her, said it got to the point where he couldn’t get any rest without her hounding him day and night and he made her a will willing her his stuff, and said at the time he done it he knew it wasn’t right but that was the only way he could get any peace was to let her have her way.”

He further testified that prior to his father’s death he told him that he had placed the second will in an old trunk in a utility room behind his home; that immediately after his father’s funeral he went to the Turner home and as he arrived he saw Mrs. Turner coming out of the utility room; that he went to the trunk and found that it had been opened and some of the old clothing therein had been disarranged; that he made a search for the will but was never able to find same; that he then asked Elizabeth Turner for the will and other papers that were in the trank but she denied any knowledge of a will in the trank; and she advised him that the other papers were in the house but that he was not going to get them.

According to the testimony of E. C. Wellborn, attorney for the Proponent, Arthur Turner came to his office in 1955 and requested him to prepare his will. He was alone at the time. Both he and the other subscribing witness, M. H. Barton, testified he was also alone when he later returned to Mr. Wellborn’s office for the purpose of executing the will. Mr. Wellborn also testified that he had visited with Mr. Turner on three occasions after he executed the will, the last of which was in September, 1962, and that on each occasion Mr. Turner inquired as to whether his will would stand up and that he assured him that it would; that although he and his brother, H. H. Wellborn, occupied adjoining law offices, he knew nothing of his brother having prepared a second will; that H. H. Wellborn died shortly before the trial of this cause.

Mrs. Elizabeth Turner testified that the first time she saw the will or had any knowledge of its existence was in September, 1957.

We will consider first the “no evidence” points relating to the question of revocation.

This being a proceeding to probate a will in which a contest has been filed, the inquiry in broad terms is whether the will sought to be probated is the testator’s will or whether it is not. Such an inquiry embraces the question of whether the will offered for probate had subsequently been revoked. Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402.

Upon the question of revocation Proponent had the burden of proving that the will had not been revoked. This burden is discharged and the will entitled to probate when its due execution is proved, in the absence of circumstances which cast suspicion on it, or in the absence of evidence of revocation. There is a presumption of continuity of status which constitutes a prima facie case against revocation. If, however, the Contestants put in sufficient evidence to rebut the presumption, then the burden of going forward with the evidence shifts back to the Proponent of the will and he must, by a preponderance of the evidence, discharge his burden of proof that the will was not revoked. McElroy v. Phink, 97 Tex. 147, 76 S.W. 753; Brackenridge v. Roberts, 114 Tex. 418, 436, 267 S.W. 244, 270 S.W. 1001; May v. Brown, 144 Tex. 350, 190 S.W.2d 715, 165 A.L.R. 1180.

In determining the question presented by the “no evidence” assignment, we must view the evidence most favorably to the jury’s verdict and disregard that militating against it. When viewed in this light, if there is any evidence of probative force to sustain the findings of the jury, such findings will not be disturbed on appeal. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.

With regard to the question of revocation, it is our opinion that the testimony of Jack Glen Crawford showing that he was present and witnessed the signature of the testator at the time he executed the second will on January 24, 1962, together with the testimony of both he and L. J. Turner showing that some eight months prior to the death of the testator, while visiting with him at his home during illness, he requested that the instrument, revoking the previous will and bequeathing all of his property to his children, be again read to him, after which he proclaimed same to be his last will, together with the other testimony in the case, constitutes evidence of sufficient probative force to establish the existence of a subsequent revoking will, which served not only to rebut the. Proponent’s prima facie case against revocation, but also to sustain the jury’s finding of revocation and the judgment based thereon. Clover v. Clover, Tex.Civ.App., 224 S.W. 916, error ref.; Brackenridge v. Roberts, supra.

Upon the question of undue influence, we have carefully reviewed all of the evidence in light of the pronouncements in the following authorities and have concluded that there is no evidence of probative value sufficient to support a finding on undue influence. Long v. Long, 133 Tex. 96, 125 S.W.2d 1034; Rothermel v. Duncan, Tex., 369 S.W.2d 917.

By Points 3 and 5 Proponent contends that the court erred in submitting Special Issue No. 2 because same was not supported by the pleadings and was multifarious. No objection having been made on either of these grounds in the trial court on these points, the objections were waived. Rule 274, Texas Rules of Civil Procedure, Safety Casualty Co. v. Link, Tex.Civ.App., 209 S.W.2d 391, 395; Minugh v. Royal Crown Bottling Co., Tex.Civ.App., 267 S.W.2d 861, error ref.; Gale v. Spriggs, Tex.Civ.App., 346 S.W.2d 620.

Points 6, 7, 9, 10, 11, 12 and 13 are submitted and briefed together as a group. As our discussion will later demonstrate, each of the points presented here are separate and distinct complaints about matters which are in many respects wholly unrelated. Under the statement and argument following these points, some of the points are completely ignored, while others although discussed, make no reference to the record where the error complained of may be found. According to the rules of procedure, such points are improperly grouped and improperly briefed and for that reason would not ordinarily be subject to appellate review. Outlaw v. Bowen, Tex.Civ.App., 285 S.W.2d 280, citing cases: Carrick v. Hendrick, Tex.Civ.App., 351 S.W.2d 659; Wheat v. Citizens National Bank at Brownwood, Tex.Civ.App., 310 S.W.2d 735; Rule 418, T.R.C.P. However, because of our liberal policy to consider such points so grouped and presented so long as we can determine with some degree of certainty what the party is complaining about, we have given consideration to all of the points, some of which will be briefly discussed.

Point 6 complains of the action of the court in overruling an objection to the deposition testimony of witness Crawford on the ground that the answers given were evasive and not direct. No reference having been made to any specific question or answer, the objection was too general and was properly overruled; furthermore, the deposition having been on file for more than one day before trial without any written objection, any complaint on this ground was waived. National Life & Acc. Ins. Co. v. Hanna, Tex.Civ.App., 195 S.W.2d 733. Rule 212, T.R.C.P.

Point 7 complains of the action of the court in admitting the testimony of L. J. Turner asserting a violation of Article 3716, Vernon’s Ann.Tex.St., known as the Dead Man’s Statute. The brief makes no reference as to where the objection and adverse ruling may be found. If such objection was made, we have been unable to find same in the record; therefore, the point presents nothing for our consideration and appears to have been waived. Point 13 complains of certain alleged prejudicial remarks made by Contestants’ attorney in the closing argument. Here again, such argument, if made, does not appear in the record and thus presents nothing for review. The other points within this group relate to the admission and exclusion of testimony. We have considered these points and find no error in the rulings made by the court and such points are likewise overruled

The 8th, 14th and 15th Points of Error are not followed by either a statement or an argument and will therefore be treated as waived. Texas Employers’ Ins. Ass’n. v. Tate, Tex.Civ.App., 214 S.W.2d 877; Rayburn v. Giles, Tex.Civ.App., 182 S.W.2d 9.

By Point 16 Proponent contends that the trial court erred in failing to bring before the court Douglas Hays, a witness who had been duly subpoenaed. The record reveals that when the case was called for trial Proponent, although knowing that the witness was not present, voluntarily proceeded to trial without any complaint. During the process of trial, at the request of the Proponent, the court caused an attachment to issue. Immediately before the close of the testimony, upon being advised that the witness could not be located, counsel for the Proponent announced : “Then we will have to close without his testimony, Your Honor.” No motion for postponement or continuance was made, nor did the court make any ruling requiring that the testimony be closed. The record fails to disclose the materiality of the witness’s testimony or what the witness would have testified if present. We fail to find any merit in this point. Proponent having failed to move for postponement or continuance and having voluntarily announced he would close without the testimony and having made no complaint in the trial court is in no position to complain, having waived any right which he may have had and cannot be heard to complain for the first time on appeal. Fordham v. Butane Gas & Equipment Co., (Tex.Civ.App.) 198 S.W.2d 607.

Points 17, 18 and 19 contend that evidence offered on the question of revocation should not have been admitted because not supported by the pleadings. As we understand these points, Proponent claims the trial court should not have permitted the introduction of any testimony concerning revocation of the will contending that since the issue of revocation was not originally raised by the pleadings in the probate court Contestants could not raise such an issue for the first time on appeal to the District Court, and alternatively the pleadings on revocation were vague and indefinite. While the pleadings of the Contestants filed before the Probate Court did not use the term “revocation”, they did allege that the instrument offered for probate was not the will of Arthur Turner. No exception was taken to this pleading in the Probate Court, nor was there any exception to the pleadings in District Court. Proponent made no objection to the testimony.

It is well settled that where no objection is made to the pleadings as insufficient, or to the introduction of evidence because not supported by the pleadings, the issue of insufficiency of pleadings cannot be raised for the first time in the appellate court. Ogden v. LeSueur, Tex.Civ.App., 236 S.W.2d 872; Benham v. Southern, Tex.Civ.App., 242 S.W.2d 682.

Moreover, the Texas Probate Code, among other requirements, places the burden upon the Proponent of a will to prove to the satisfaction of the court that the will was not revoked by testator. Sec. 88(b) (3), Texas Probate Code, V.A.T.S. This statutory requirement must be proved whether there is a contest and whether the pleadings raise the issue or not. Usher v. Gwynn, Tex.Civ.App., 375 S.W.2d 564; Ashley v. Usher, Tex., 384 S.W.2d 696; Shropshire v. Salyer, Tex.Civ.App., 110 S.W.2d 917; May v. Brown, supra; Brackenridge v. Roberts, supra; McElroy v. Phink and Usher v. Gwynn, supra. The points are therefore thought to be without merit and are overruled.

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

Affirmed.

      . “SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence in this case that the making and execution of the instrument dated July 6, 1955 introduced in evidence as Arthur Turner’s last will and testament was procured by undue influence on the part of Mrs. Elizabeth Turner?
      “Answer ‘Yes’ or ‘no.’
      “ANSWER Yes
      “SPECIAL ISSUE NO. 2: Do you find from a preponderance of the evidence that on or about January 24, 1962, Arthur Turner executed the instrument testified to by L. J. Turner and Jack Glenn Crawford in the presence of Jack Glenn Crawford and H. H. Wellborn intending same to be and constitute his last will and intending same to revoke all former wills?
      “Answer ‘Yes’ or ‘No.’
      “ANSWER: Yes ”


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    Robert W. CHRISTIAN, Appellant, v. MARTIN & COMPANY et al., Appellees.
    No. 3913.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 13, 1964.
    Rehearing Denied Dec. 4, 1964.
    Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, Mays, Leonard, Moore & Dickson, Sweetwater, for appellant.
    McMahon, Smart, Sprain, Wilson & Camp, Abilene, Nunn, Griggs & Beall, Sweetwater, for appellees.
   COLLINGS, Justice.

Robert W. Christian brought suit against W. A. Martin, individually and doing business as Martin & Company. Plaintiff sought to recover $77,725.00 damages for personal injuries alleged to have been suffered while he was between his truck upon which some large steel pipe was located and appellees’ low boy trailer upon which pipe from the truck was being placed and stacked by appellees’ employees. Plaintiff alleged that defendant was guilty of negligence in the manner in which the pipe was stacked and secured on the low boy trailer, which negligence proximately caused plaintiff’s injury and damages. The defendant alleged that plaintiff was guilty of contributory negligence proximately causing the accident and that plaintiff had voluntarily assumed the risk of his injury. The case was tried before a jury which found the defendant guilty of negligence proximately causing plaintiff’s injuries, but also found that plaintiff was guilty of negligence in walking between the truck and trailer, that such negligence was a proximate cause of plaintiff’s injury and damages, and that plaintiff had assumed the risks involved. Based upon the verdict, a take nothing judgment was entered against Christian and he has appealed.

As indicated, the jury found that appel-lees’ employees “failed to position the pipe on the low boy trailer as close to the 2x4 stanchions on the south side of the trailer as would have been done by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances”, and that such failure was a proximate cause of the accident which was the basis of this suit.

In answer to special issue number 5 the jury found that appellant Christian “was negligent in walking between the two trucks on the occasion in question under all the circumstances then existing”, and in answer to special issue number 6 found that such negligence on the part of Christian in walking between the two trucks was a proximate cause of his injuries.

In appellant’s first point it is contended that the court erred in refusing to disregard the affirmative finding of the jury in response to special issues numbers 5 and 6, asserting that they are not ultimate and controlling issues of fact, in that the mere walking between the two trucks on the occasion in question under all the circumstances then existing could not be determinative of contributory negligence on the part of Christian with respect to the occurrence in question. Appellant particularly urges that the holding of our Supreme Court in the case of Driver v. Worth Construction Company, 154 Tex. 66, 273 S.W.2d 603, is controlling. We cannot agree with this contention. In the Driver case the jury found that plaintiff was guilty of contributory negligence in failing to travel on a different highway which had been used by plaintiff on prior occasions. The Supreme Court pointed out that the failure of the plaintiff to use a different highway or street could not be determinative of negligence with regard to the occurrence in question at the specified street intersection there involved. In the instant case the jury found that the plaintiff was negligent “in walking between the two trucks under all the circumstances”. The inquiry concerned certain alleged conduct of the plaintiff, and whether such conduct was negligence under the existing facts and circumstances. In our opinion issues numbers 5 and 6 are controlling issues, and are not the equivalent of inquiring whether a party was negligent in not staying at home or in not traveling a different thoroughfare at the time of an accident. We are also of the opinion, contrary to appellant’s contention, that the action of appellant in walking “between the two trucks” as found by the jury was the equivalent of walking “between the two loads of pipe” as shown by the evidence. Appellant’s first point is overruled.

In appellant’s second point it is contended that the court erred in giving effect to the findings of the jury in response to special issues numbers 5 and 6, and in entering judgment adverse to appellant based in whole or in part on such findings for the reason that said special issues are general and global and constitute nothing but a general submission of specific contributory negligence issues, all of which were answered by the jury adversely to ap-pellees. In this connection the jury did, as appellant contends, find that appellant did not fail to keep a proper lookout, that his failure to move his truck prior to the time of the accident was not negligence and that he did not fail to advise appel-lees’ employees of his intention to walk between the two trucks. These specific findings, however, relate to alleged negligent action on the part of appellant entirely separate and apart from any negligence in walking between the trucks.

The evidence shows that at the time of the accident appellees’ employees were unloading large heavy pipe from the truck of appellant and placing it on appellees’ low boy trailer. About fifteen pipes were to be unloaded. The evidence also shows that one layer of pipe had already been placed on the trailer and that appellees’ employees were at the time engaged in removing a piece of pipe from appellant’s truck and placing it on top of the pipe already on the trailer. Christian admitted and the evidence is undisputed that he knew that appellees’ employees were loading a piece of pipe on the low boy trailer at the time he entered between the two trucks. It is also undisputed that one layer of pipe had already been placed upon the trailer and that the bottom layer was full. The finding that appellant did not have full knowledge that appellees’ employees were loading a piece of pipe onto “the first layer of pipe” is immaterial in view of appellant’s undisputed admission that a piece of pipe was being lowered onto the trailer where one layer of pipe had already been placed. Appellant further testified that at the time he walked between the trucks he realized that there was “danger of pipe rolling because they were working at the time.” The evidence further shows that in unloading the pipe from appellant’s truck and lowering it onto appellees’ low boy trailer two of appellees’ employees were standing on appellant’s truck and one of appellees’ employees was standing on the layer of pipes which was already on the trailer and was placing the pipe as it was lowered. There was ample evidence to the effect that appellant had full knowledge that a disturbance of the pipe could cause it to roll at the time he walked between the trucks when a piece of pipe was being lowered onto the trailer and on the pipe which had previously been placed thereon. The jury found that Christian did not have full knowledge that the pipe on the low boy “would” roll if disturbed at the time in question. This finding, however, is not inconsistent with the evidence and finding to the effect that the pipe “could” roll under such circumstances. In our opinion the evidence and particularly the admissions of appellant Christian relative to his knowledge of the conditions which existed at the time of the accident and his appreciation of dangers therefrom constitutes ample evidence independent of any findings against appellee supporting the finding of the jury that appellant was guilty of negligence in walking between the two trucks on the occasion in question under all the circumstances then existing, and that such negligence was a proximate cause of appellant’s injuries. Contrary to appellant’s contention the jury did not specifically exonerate appellant of all specific acts of negligence alleged and raised by the evidence. Therefore, the rule announced in Triangle Cab Company v. Allen C. Taylor, 144 Tex. 568, 192 S.W.2d 143, in Holly v. Bluebonnet Express Company, Tex.Civ.App., 275 S.W.2d 737, and other cases relied upon by appellant are not applicable. Appellant’s second and fourth points are overruled.

The disposition of the points concerning contributory negligence requires an affirmance of the judgment and it is therefore unnecessary to discuss the remaining points bearing volenti non fit injuria.

The judgment is affirmed.


text:
    TRANSPORT INSURANCE COMPANY, Appellant, v. M. C. REID, Appellee.
    No. 83.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 12, 1964.
    Rehearing Denied Dec. 3, 1964.

      Herbert Boyland, Kenley, Ritter & Boy-land, Longview, for appellant.
    Franklin Jones, Jr., Jones, Jones & Baldwin, Marshall, Ben Johnson, Johnson, Hathaway & Jackson, Tyler, for appellee.
   SELLERS, Justice.

This is a compensation case in which M. C. Reid was plaintiff in the trial court and Transport Insurance Company was defendant. From a verdict and judgment for plaintiff for compensation at the rate of $35.00 per week for 104 weeks temporary total disability and 297 weeks permanent partial disability, the defendant has duly prosecuted this appeal.

The appellant by several assignments of error complains of argument of appellee’s counsel as being improper and calculated to and did wring from the jury an improper verdict. No objection was made to the argument at the time the same was made and no request of the trial court to instruct the jury not to consider the same. The point is raised for the first time after the jury had retired to consider their verdict, and appellant moved the court to grant a new trial because of such argument which was overruled by the court.

We deem it sufficient to say that we have reviewed the argument complained of, as well as the argument of appellant’s attorney, and are of the opinion that the assignments must be overruled on two grounds: First, appellee’s argument was invited by the argument of the appellant’s attorney. Travelers Insurance Company v. Pierce, Tex.Civ.App., 358 S.W.2d 947. Second, any error in the argument complained of could have been cured by a timely objection to the court when the argument was made, which was not done, and therefore any error therein was waived. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054.

The appellant assigned error that the answers to Issues Nos. 7 and 12 submitted to the jury are not supported by the evidence and are against the great weight and preponderance of the evidence. We cannot agree that the evidence is insufficient, and we will not undertake to set out the evidence here but deem it sufficient to say that the evidence alone of the appellee and Dr. King, who operated on the appellee, is sufficient to support the answers given by the jury to said issues. We are of the opinion the above holding is supported by the following authorities: Western Casualty & Surety Co. v. Mueller, Tex.Civ.App., 169 S.W.2d 223; Texas Employers Ins. Ass’n v. Reed, Tex.Civ.App., 150 S.W.2d 858.

From the Mueller case we quote:

“The burden of appellant’s complaint is that no medical doctor, testifying as an expert, stated that, in his opinion, appellee had suffered a certain percentage of disability. The percentage of disability resulting from an injury is at best an estimate which must he determined by a jury from all the pertinent facts before it, i. e., the nature of the injury, the testimony of the injured party as to its effect upon his ability to work, expert medical testimony, etc. We make no attempt to detail the various species or kinds of evidence which may be pertinent to the issue. It is not, however, necessary to the validity of a finding of partial disability that there be contained in the record of the evidence an estimate of an expert medical witness as to the percentage of disability. We hold that the jury’s answer to Special Issue No. 10 has support in the evidence.”

Appellant’s fifth point of error is as follows:

“THE TRIAL COURT ERRED IN REFUSING DEFENDANT’S REQUEST TO FILE A TRIAL AMENDMENT DENYING PLAINTIFF HAD GOOD CAUSE FOR FAILING TO FILE HIS CLAIM WITH THE INDUSTRIAL ACCIDENT BOARD WITHIN SIX MONTHS FROM FEBRUARY 12, 1962, AFTER ALLOWING PLAINTIFF TO AMEND HIS PETITION WHEREIN HE ALLEGED, FOR THE FIRST TIME AND AFTER THE TRIAL HAD COMMENCED, AN INJURY ON FEBRUARY 12, 1962.”

Subdivision (n) of Rule 93, Texas Rules of Civil Procedure, provides:

“(n) In the trial of any case appealed to the court from the Industrial Accident Board the following, if pleaded, shall be presumed to be true as pleaded and have been done and filed in legal time and manner, unless denied by verified pleadings:
“(1) Notice of injury.
“(7) That there was good cause for not filing claim with the Industrial Accident Board within the six months’ period provided by statute.
* * *
“Any such denial may be made in original or amended pleadings; but if in amended pleadings the same must be filed not Jess than seven days before the case proceeds to trial. In case of such denial the things so denied shall not be presumed to be true, and if essential to the case of the party alleging them, must be proved.”

This rule has been held to be mandatory in the case of Texas Employers’ Insurance Association v. Brockman, Tex.Civ.App., 283 S.W.2d 817, where the Court said:

“In Southern Underwriters v. Tullos, 136 Tex. 408, 151 S.W.2d 789, our Supreme Court said the statutory rule providing that the employee’s allegation that his claim was timely filed or that good cause existed for failure tO' timely file should be presumed to be-true unless denied under oath was mandatory and that its purpose was to avoid the necessity of consuming the time of the court in trying matters about which there was no good faith contest. See also Traders & General Ins. Co. v. Porter, Tex.Civ.App., 124 S.W.2d 900, 902 (Writ Ref.). * * *
“The insurer, having failed to deny said allegations of the employee by an amended pleading filed not less than seven days before the trial, waived its right to assert said defense and said allegations were conclusively presumed to be true. Appellant’s first point is-overruled.”

It is the contention of the appellant that, after the court allowed the appel-lee to amend his pleadings by changing the date of the injury from February 14 to February 12, which was done by appellee interlining the change in his petition upon which he went to trial, the appellant then had the right to file his verified trial amendment requiring the appellee to make proof of his good cause for not filing his claim with the Industrial Accident Board within six months after the accident.

The change of the date of the injury required no new pleadings on the part of the appellant nor did it authorize the appellant to do by trial amendment that which the rule required to be filed in not less than seven days before the trial began.

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


author: WERLEIN, Justice.

text:
    The STATE of Texas, Appellant, v. Ralph W. CLEVENGER et al., Appellees.
    No. 14305.
    Court of Civil Appeals of Texas. Houston.
    Nov. 12, 1964
    Rehearing Denied Dec. 3, 1964

      Waggoner Carr, Atty. Gen. of Texas, T. B. Wright, Watson C. Arnold and Albert L. Derden, Asst. Attys. Gen., Austin, for appellant.
    Liddell, Austin, Dawson & Sapp, Charles R. Vickery, Jr., and Harley W. McConnell, Houston, for appellees.
   WERLEIN, Justice.

This suit was brought by the State of Texas against appellees, Ralph W. Cleven-ger et al., to condemn for highway purposes 50,896 square feet of land out of a tract of 121,375 square feet. The issues in the trial court were confined to the market value of the land taken and damage to the remainder. From the judgment of the trial court, based upon the jury findings that the value of the land appropriated was $38,790.00, or approximately 76 cents per square foot, and the damage to the remainder was $10,999.72, the State has appealed.

We shall not discuss appellant’s second point since the error complained of therein was admittedly not preserved in the trial court. This appeal, therefore, is confined to appellant’s complaint that the trial court erred in admitting in evidence as a comparable a contract of sale of land which was not consummated into a completed transaction since the buyer forfeited the $5,000.00 earnest money placed in escrow.

The contract of sale in question is similar to earnest money contracts commonly used in this State. It stipulates that the seller shall forthwith furnish an owner’s title policy issued by Commercial Title Company; provides for the deposit in escrow with such company of $5,000.00 earnest money as part of the purchase money for the property described therein which “seller has this day sold to buyer;” sets out the terms of the sale, and contains a number of other provisions including the following:

“If, however, said title company is ready and willing to guarantee said title to Buyer, and Buyer fails, refuses or is unable for any reason to consummate this contract in accordance with the terms hereof, within a period of 10 days from notice that said title company is ready to guarantee said title, then the earnest money herein receipted for shall be forfeited to Seller and agent, equally, as agreed liquidated damages, and this contract shall thereupon terminate and all parties shall thereupon be fully released herefrom.”

The contract is dated January 2, 1959 and signed in triplicate originals by the seller, Billie Kennerly, the buyer, J. H. Horn, Trustee, the real estate agent, Gould Beech, and the escrow agent, Robert H. Fisher.

Appellant asserts that the contract of sale in question was in fact an option since it could not be specifically enforced against the buyer, although it could be specifically enforced against the seller. In the event that the buyer failed or refused to consummate the contract in accordance with the terms thereof, the seller, Mrs. Kennerly, could not compel him to take the property but she could forfeit the $5,000.00 as liquidated damages. The contract was never consummated in a conveyance of the property described therein since the buyer, J. H. Horn, Trustee, failed to go ahead with the purchase and forfeited the $5,000.00 earnest money. Appellees’ witness, Gould Beech, testified as to his personal knowledge of the contract in question and of the land described therein which he considered a comparable. Such contract involved approximately 145,000 square feet near the land taken in this condemnation proceeding. The total consideration recited in such contract of sale was $160,614.00 or approximately $1.10 per square foot. Said witness testified that in his opinion based upon comparable sales with which he was familiar, that the value of the land taken in this condemnation proceeding was $1.05 per square foot.

In arriving at the value of the land in question said witness considered and relied upon not only the contract of sale covering the Kennerly tract but the following comparable sales: (1) The sale from Kennerly to Lee Wright, dated September, 1960, covering a portion of the land described in said contract of sale, which sold at $1.37 per square foot; (2) Sale from Massey to Levi, October, 1958, at approximately 57 cents per square foot; (3) Three sales to V. Miller in May, 1961 averaging $1.34 per square foot, including Oberprillar to V. Miller at $1.00 per square foot, and Kolbe to V. Miller, at $1.13 per square foot. These sales, with the exception of the sale from Massey to Levi and the contract of sale from Kennerly to Horn, were subsequent to April 16, 1959, the date of taking, but there is evidence that there was no significant rise in prices between April, 1959 and the date of such sales.

Appellees’ witness, Eric Moerbe, in placing the valuation of $1.10 per square foot on the property taken, relied on the sale from Kennerly to Wright at $1.37 per square foot, said three sales to V. Miller and the sale from the Silber heirs to Chrysler Corporation in February, 1962 at $1.50 per square foot. Appellant’s witness, C. M. Knapp, relied on the following sales which he considered as comparable: (1) Hardcastle to Weeden, August, 1957 at $16,480.00 per acre; (2) Whitty and Janke to Mitschke, November, 1958, high land at $12,700.00 per acre, low land at $6,350.00 per acre; and (3) Massey to Levi at 57 cents per square foot.

It is manifest that the jury, in arriving at the value of 76 cents per square foot for the land taken, did not accept as controlling any of the comparable sales testified to, but found a value in between the high and low valuations placed on the land by the witnesses, which was 34 cents per square foot less than the amount of $1.10 per square foot provided in the Kennerly contract of sale.

The law is well settled that unaccepted offers to buy or sell are incompetent evidence of land value in condemnation suits. Hanks v. Gulf, Colo. & S. F. Ry. Co., 1959, 159 Tex. 311, 320 S.W.2d 333; Taub v. Houston Independent School District, Tex.Civ.App., 339 S.W.2d 227, ref., n. r. e.; Loumparoff v. Housing Authority of City of Dallas, Tex.Civ.App., 261 S.W.2d 224, no writ hist.; State v. Layton, Tex.Civ.App., 147 S.W.2d 515, no writ hist. The same reasons that preclude evidence of unaccepted offers render such offers valueless as a basis for opinion evidence of value. The contract of sale in question was not a mere offer. It was an enforceable contract in that the seller could be compelled to deed the property and the buyer could be compelled to forfeit the $5,000.00 as liquidated damages if he refused to put up the balance of the cash purchase money and consummate the sale.

It is our view that the court did not err in admitting the contract of sale in question as one of the comparables upon which the witness, Gould Beech, relied in arriving at the value that he placed upon the land that was taken. In Robards v. State, Tex.Civ.App., 285 S.W.2d 247, error ref., n. r. e., a written contract of sale was executed for the property that was the subject of condemnation, and a down payment of $1,000.00 was made. Later the contract of sale was by mutual consent rescinded when the parties learned of the improvement for which the condemnation was being made. 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. That the contract was rescinded could of course be shown as lessening its weight as evidence of market value.”

Appellant has undertaken to distinguish the Robards case from the instant case, by asserting that in the Robards case the contract was probably specifically enforceable as against both the buyer and the seller. We find nothing in the Robards case which indicates that it could have been specifically enforced against the buyer who made a down payment of $1,000.00. It seems more likely that such down payment was an earnest payment to bind the sale.

In the instant case it .was shown that the buyer did not consummate the purchase as he agreed to do in the contract and that he forfeited the $5,000.00 as liquidated damages. This fact could be and was shown as lessening the contract’s weight as evidence of market value. Had the contract been entered into without any intention of its being carried out, such fact could also have been shown. The evidence, however, is undisputed that the contract of sale was a bona fide contract entered into by both parnés m complete good raitft.

The case at bar is distinguishable from the case of State v. Williams, Tex.Civ.App., 357 S.W.2d 799, writ ref., n. r. e., relied upon by appellant. In the Williams case the agreement was evidenced by a letter. The letter is not set out in the opinion and its contents are not known. The court stated, however, that the agreement evidenced by such letter was clearly an option contract. An option is a mere privilege or right which the owner of property gives another to buy certain property at a fixed price within a certain time. It is a mere right of election acquired by one under a contract to accept or reject a present offer within the time therein fixed. Knox v. Brown, Tex.Com.App., 277 S.W. 91; Ware v. Quigley, 176 Cal. 694, 169 P. 377; Western Union Telegraph Co. v. Brown, 253 U.S. 101, 40 S.Ct. 460, 64 L.Ed. 803; Anthis v. Sandlin, 149 Okl. 126, 299 P. 458.

In the instant case^ the contract of sale was not just an option. The signatories to such contract in the utmost good faith entered into a valid and binding agreement for the sale and purchase of the land in question which the “Seller has this day sold to Buyer.” The fact that the contract provided that if the buyer failed, refused or was unable to consummate the contract the $5,000.00 down payment which was deposited in escrow as part of the purchase money would be forfeited as liquidated damages, did not convert such contract of sale into a mere option. Here there was a willing seller and a willing buyer who mutually obligated themselves respectively to sell and buy at a price and upon terms specifically agreed upon. Nothing but the final consummation thereof remained to be done. It is our view that the contract of sale meets the standards suggested in the authorities referred to in the opinion of our Supreme Court in State v. Oakley, 1962, 163 Tex. 463, 356 S.W.2d 909.

Even if such evidence was admitted in error, appellant has wholly failed to discharge its burden of showing from the record as a whole that the admission of such evidence was reasonably calculated .to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure; Taub v. Houston Independent School District, Tex.Civ.App., 339 S.W.2d 227, writ ref., n. r. e. It seems obvious that the jury was not influenced to any appreciable extent by the value of $1.10 per square foot provided in said contract of sale, since they found the property in question to have a value of only 76 cents per square foot. In view of all the testimony with respect to value of the property in question based upon comparable sales of land, we cannot hold that the admission of such contract in evidence was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Dennis v. Hulse, Tex.Sup.1962, 362 S.W.2d 308; City of Dallas v. Holcomb, Tex. Civ.App.1964, 381 S.W.2d 347; In Re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660.

Judgment affirmed.


author: LANGDON, Justice.

text:
    ABILENE WHITE TRUCK COMPANY, Appellant, v. Howard PETREY et al., Appellees.
    No. 16571.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 30, 1964.
    Rehearing Denied Dec. 4, 1964.

      Brooks & Jones and David L. Smith, Abilene, for appellant.
    George C. Kemble and Robert Hobbs, Fort Worth, for appellees.
   LANGDON, Justice.

This is an appeal from a summary judgment in a case wherein both sides filed motions and agree that either appellant or appellees are entitled to judgment as a matter of law on the record.

On March 21, 1960, Howard Petrey contracted to purchase some machinery from the appellant Abilene White Truck Company. He signed a note for the purchase price and joined by his wife signed a Deed of Trust covering three lots in Westland, Tarrant County, Texas to secure the note. The Deed of Trust provided that the property be “fully insured in some company or companies approved by the holder of said indebtedness to whom the loss, if any, shall be payable. * * * ”

Petrey insured the property as required with the Kansas City Fire and Marine Insurance Company but failed to provide that the policy be made payable to the mortgagee (the truck company) as its interest may appear which he was required to do under the terms of the Deed of Trust.

Petrey fell into default on the note. The Abilene White Truck Company sued on the note and for foreclosure under the Deed of Trust.

On January 2, 1962, the Abilene White Truck Company obtained judgment on the note and an order of foreclosure under the Deed of Trust covering the property in question.

On January 22, 1962, some 20 days after a such judgment the property involved sustained a fire loss.

On June 29, 1962, the appellant filed a petition for writ of garnishment against the Insurance Company for the proceeds of the policy in Cause No. 2S949-C in the 96th District Court of Tarrant County.

On January 23, 1963, Howard Petrey, d/b/a Petrey & Sons, filed suit against the insurance company on the policy to collect the proceeds due him as result of the fire loss in Cause No. 284S7-C in the 48th District Court of Tarrant County.

On April 26, 1963, the two causes of action Nos. 25949-C and 28457-C were consolidated. In its order of consolidation the court recited that the suit shall proceed under cause No. 28457-C in the 48th District Court and that all parties to the suit, as consolidated, may file new pleadings appropriate to the consolidated suit. To this point the only parties in interest involved in the litigation were Howard Petrey, d/b/a Petrey & Sons, Abilene White Truck Company and the Insurance Company.

On June 12, 1963, Howard Petrey, d/b/a Petrey & Sons, and George C. Kemble and Robert Hobbs filed “Claimants Original Petition”, in the consolidated cause. The latter two claimed the proceeds under an assignment dated January 29, 1962, signed by Petrey without joinder of his wife. The petition further recited that if for any reason the assignment was invalid the proceeds should be payable to Petrey. These claimants, appellees, contend that the appellant is limited to his action in garnishment which is invalid because the property which sustained the fire loss was Petrey’s business homestead. Appellees in their pleadings refer to an agreement set forth in the court’s order of consolidation by which the parties hereto reserved all rights either side may have to the proceeds of the policy. On August 23, 1963, with approval of all parties the court entered an order discharging Kansas City Fire and Marine Insurance Company upon its payment of $3,350.00 into the registry of the court. The order recited that the sum of $3,350.00 “will stand in lieu of the claims heretofore made hy the other parties to this suit against Kansas City Fire and Marine Insurance Company * * * and said other parties may continue to assert and litigate their claims against said amount to the same extent that they could have asserted a claim to benefits due under said policy of insurance.”

The Deed of Trust signed by Petrey and his wife contained the usual declaration that the property covered thereby formed no part of any property which was owned, used, occupied or claimed by them as their homestead.

In his affidavit attached to his motion for summary judgment Petrey claimed the property was his homestead on the date of the fire (January 22, 1962).

The Abilene White Truck Company claimed the proceeds of the policy on the basis of an equitable lien arising under the provision of the Deed of Trust which provided that the policy be made payable to it.

We reverse and render.

In the case of Kirkpatrick v. Great American Ins. Co., 299 S.W. 943 (Waco Civ.App., 1927, no writ hist.), it was stated, “If the mortgagor agrees with the mortgagee to take out insurance on the mortgaged property for the benefit of the mortgagee, and does procure a policy on such property, but fails to have the loss made payable to the mortgagee, as his interest may appear, the mortgagee, in case of a loss, will have an. equitable lien upon the money due on such policy. Equity regards that as done which should have been done. (Authorities cited.) There can be no doubt but that by reason of the obligation on the part of Kirkpatrick to insure said property for the benefit of McCauley that J. B. Mc-Cauley acquired an equitable lien on said $200. It is also true his equitable lien accrued prior to the transfer to the Itasca National Bank, and it seems to be the settled rule of law in this state that assignments, whether legal or equitable, take effect in the order in which they are made. As said by our Supreme Court in Hess & Skinner Engineering Co. v. Turney, 110 Tex. [148] 155, 216 S.W. [621] 623: ‘In our opinion the rule is sound, which gives priority in rank to equitable assignments in the order of their dates, without regard to notice to the debtor. * * * The debtor is fully protected because he is not affected by the assignment until notified, and the subsequent assignee, in dealing with a chose in action, is chargeable with knowledge that he can get no better right than that of his assignor.’” See also 32 Tex.Jur.2d 690, § 461; Gilbert v. Mooring, 88 S.W.2d 537 (Eastland Civ.App., 1935, dism.); House v. Brackins, 130 S.W.2d 917 (Dallas Civ.App., 1939, no writ hist.); Fidelity & Guar. Ins. Corp. v. Super-Cold Southwest Co., 225 S.W.2d 924 (Amarillo Civ.App., 1949, ref., n. r. e.).

Under the record in this case Petrey was charged with the duty of obtaining a policy of insurance with loss payable to the Abilene White Truck Company. The latter had a prior right to the proceeds of such policy when the property covered was destroyed while the debt was unpaid even though Petrey failed to provide that the loss be payable to it. This right was not affected by Petrey’s subsequent attempt to assign the proceeds of the policy. Thus the assignees acquired no better right than that of Petrey. The proceeds in question are subject to an equitable lien in favor of the truck company.

The appellees’ counterpoint based upon the homestead character of the property as of the date of the fire is overruled since the character or status of the property oh the date the Deed of Trust was executed controls.

Further, the court’s' order of consolidation did not limit the appellant to its garnishment action rather than a claim to the proceeds of the policy based upon an equitable lien thereto. Appellees’ counterpoints are all overruled. The judgment is reversed and rendered in favor of the appellant, Abilene White Truck Company.


author: NYE, Justice.

text:
    J. P. DUEITT, Appellant, v. E. BARROW, Appellee.
    No. 49.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 12, 1964.
    John M. Robinson, Houston, for appellant.
    Ernest Coker, Jr., of Coker & Coker,. David Crews, Conroe, for appellee.
   NYE, Justice.

E. Barrow, appellee, a paving contractor, recovered judgment against J. P. Dueitt for the balance due on an oral contract for personal services rendered, labor done and materials furnished in the amount of $1373.62, and for $769.88 for additional •extra work, plus $600.00 attorney’s fees.

Dispute arose over the exact amount due and owing to the appellee contractor by appellant. The appellant does not contest on appeal the correctness of the trial court’s award of $1373.62, being the balance due under the original oral contract for paving work. The appellant predicates his appeal •on two points, the first being that the trial •court erred in awarding judgment for the sum of $769.88 for additional extra work because such sum was awarded on a theory not supported or raised by the appellee’s jpleadings.

The trial court found that the parties entered into a subsequent oral contract whereby the appellee contractor would furnish the appellant additional extra services, labor and material; that such services, labor .and material were, in fact, furnished; that there is due and owing to appellee contractor the sum of $769.88 for the additional extra work; and that such amount is the fair and reasonable market value for the same. Appellant contends that the .appellee contractor plead an open account for the extra work and that such pleading •cannot support a judgment for extra work based on an oral contract.

A pleading which sets forth a claim for relief shall contain a statement of the ■cause of action, shall give sufficient notice of the claim involved and must contain a -demand for judgment for the relief to which the party deems himself entitled. Rule 47, Texas Rules of Civil Procedure. All pleadings shall be construed so as to •do substantial justice. A variance between •the pleading and the proof must be substantial, misleading and prejudicial to be fatal. Rule 45, T.R.C.P.; Glen Falls Insurance Co. v. Vetrano, C.C.A., n. w. h., 347 S.W.2d 769, 1961. Any variance in the pleadings and proof must be called to the attention of the trial court by objection or motion to strike, or it will be waived. Kirkwood & Morgan, Inc. v. Roach, 360 S.W.2d 173 (C.C.A.1962, Ref. n. r. e.).

Appellee contractor plead that he furnished additional services, labor and material to the appellant upon an open account at the special instance and request of the appellant and then proceeded to itemize the labor, materials and services rendered. Appellee contractor testified during the trial, without objection, that the appellant requested him to do the extra work and agreed to pay for it, and then testified as to the value of such services. He did not rely on the verified account for the proof of the value of the labor done or materials furnished. We hold that the appellee’s pleadings and his proof were sufficient to apprise the appellant of the nature and theory of the plaintiff’s cause of action. Appellant’s first point is overruled.

Appellant, in his second point, contends that the trial court erred in awarding attorney fees of $600.00 in that the judgment was based on oral contracts which did not provide for attorney fees. Article 2226, Vernon’s Ann.Tex.St, provides that:

“Any person having a valid claim against a person * * * for personal services rendered, labor done, material furnished, * * * or suits founded upon a sworn account or accounts, may present the same to such person * * *; and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such person * * *, he may also recover, in addition to his claim and cost, a reasonable amount as attorney’s fees, if represented by an attorney.”

Appellee’s claim for labor and material furnished was greater than the amount awarded by the trial court. If we understand appellee’s contention he argues that attorney fees cannot be awarded under Article 2226, V.A.T.S., because appellee’s claim is based upon oral contracts, the breach of which by the appellant does not entitle appellee to attorney fees under Article 2226. Appellant cites as authority for this contention Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958). This was a suit by a vendor to recover the unpaid balance of the purchase price under a contract. The suit was brought upon a sworn account as defined by Rule 185, T.R.C.P. It was contended that since the suit was based on a sworn account, the vendor was entitled to attorney fees under Article 2226. The Supreme Court, in refusing the award of attorney fees, held that Rule 185 was a rule of procedure with regard to evidence necessary to establish a prima facie case, and not the basis for a cause of action. The Court defined a sworn account and held that the recovery of attorney fees, based upon a transaction by the parties resting upon a special contract for the drilling of an oil well was not included within the definition of a sworn account.

The appellant does not raise any objection to the necessary preliminaries under Article 2226, such as notice, time, proof of the amount, or the representation by an attorney, but contends that the award was based upon a breach of contract and under a strict construction of Article 2226, V.A. T.S., appellee cannot recover his attorney fees. No cases have been cited that are determinative of appellant’s contention. Article 2226 does not exclude an award of attorney fees where the cause of action is based upon an agreement or an oral contract to furnish materials or labor. The criterion is not that the claim be based upon contract or sworn account, but that the claimant or debtor takes the proper steps as outlined under Article 2226 for recovery of a judgment, and that the claim must be based upon the specific items within the meaning of Article 2226. Ferrous Products Co. v. Gulf States Trading Co. (1960), 160 Tex. 399, 332 S.W.2d 310; Mitchell v. M. M. M., Inc., 261 S.W.2d 472, C.C.A., reversed upon other grounds; 153 Tex. 227, 265 S.W.2d 584; Harris v.. Corpus Christi Broadcasting Co., 333 S.W.2d 475 (C.C.A.1960 writ ref. n. r. e.); Texas Gas Corp. v. Hankamer, 326 S.W.2d 944 (C.C.A.1959, ref. n. r. e.) ; Lander v. Boykin, 351 S.W.2d 594 (C.C.A.1961); McDonald v. Watkins, 353 S.W.2d 905 (C.C.A.1962). We hold that the allowance of' an attorney fee was proper, as Article 2226-authorizes the recovery of reasonable attorney fees upon a claim of the nature of that asserted here. Appellant’s second point is overruled.

The judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    CARGILL, INC., Appellant, v. J. B. VAN DEWEGHE et ux., Appellees.
    No. 7602.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 20, 1964.

      Harry Friedman, Harkness & Friedman, Texarkana, for appellant.
    Edward Miller, John D. Raffaelli, Raf-faelli & Keeney, Texarkana, for appellees.
   CHADICK, Chief Justice.

This suit originated as an action to collect the unpaid balance of two promissory notes and foreclose a mortgage, and in the alternative a suit on open account. The defendants’ answer plead a general denial and set up a cross-action for damages occasioned by a breach of contract. The cross-appellants’ appeal is dismissed and the judgment of the trial court is reformed and affirmed.

The span of this appeal may be reduced by first determining the validity of a second judgment in the case rendered by the trial judge. The suit went to trial without the intervention of a jury on December 30, 1963. The trial judge signed and entered an original judgment February 13, 1964. On the 56th day after signing and entering the original judgment, that is, on April 9, 1964, the trial judge signed and entered a second judgment. The plenary power of the trial court over its judgment terminated thirty days after entry of the original judgment on February 13. Rule 329b, Sec. 5, Vernon’s Ann.Tex.Rules of Civil Procedure; Judgments, 4 Texas Civil Practice (McDonald) 1420, Sec. 18.03. The transcript, including the supplement thereto, does not show notice was given the plaintiff, Cargill, Inc., that a correction of the original judgment was to be made. Correction at the time the second judgment is dated required proceedings in conformity with the nunc pro tunc (Rule 316) or Bill of Review (329b, Sec. 5; Probate Code, § 31, V.A.T.S.) practice. This effort to make a correction without notice at a time after the trial court had lost plenary control of the judgment is ineffective and the second judgment dated April 9, 1964, is a nullity. Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148; 4 Texas Civil Practice (McDonald), Sec. 17.08, p. 1326.

The cross-appellants, J. B. Van Deweghe and wife, Edna Van Deweghe, filed their appeal bond the 56th day after the entry of the original judgment on February 13, 1964. For this court to have jurisdiction of their cross-appeal their appeal bond must have been filed within thirty days after rendition of the original judgment dated February 13, 1964. Rule 355. The cross-appellants having failed in this respect, this court is without jurisdiction of their appeal and it is dismissed.

Cargill, Inc., the appellant, is the corporate successor to Nutrena Mills, Inc. The record indicates all pertinent transactions prior to suit occurred while the corporation was operating under the name Nutrena Mills, Inc. To lessen confusion the corporation will be referred to hereafter as Nutrena Mills, regardless of the corporate name in use at the time of the- occurrence mentioned.

The Van Deweghes’ cross-action pleads a contract between the parties, asserts Nutrena Mills breached it, and seeks reimbursement for damages caused by the breach. From the standpoint of the Van Deweghes, the trial judge found and concluded that Nutrena Mills failed to fully comply with an agreement to furnish Nu-trena feed to the Van Deweghes (Findings of Fact § 2 and § 5), but devitalized it by finding that damage of $2,736.58 suffered by the Van Deweghes was inflicted on them as the result of Nutrena Mills furnishing the Van Deweghes’ moulded chicken feed (Finding of Fact § 14 and Conclusions of Law § 2). From Nutrena Mills’ standpoint the trial judge found Nutrena Mills was entitled to recover $2,736.58, the unpaid balance and accrued interest of two notes given Nutrena Mills by the Van Deweghes, and an attorney’s fee of $250.00, a total of $2,986.58 (Conclusions of Law § 2).

Nutrena Mills excepted to the finding of fact favorable to the Van Deweghes as being without support in the evidence. Findings of Fact § 2, § 6, and § 14 either directly or by implication constitute findings that Nutrena Mills agreed to and did furnish 16,000 pounds of chicken feed to the Van Deweghes. But the statement of facts contains no evidence to support these findings. A written instrument headed “Nutrena Egg Production Finance Agreement No. 18635 ” is admittedly the only written contract between Nutrena Mills and the Van De-weghes, the latter are termed therein as-“Egg Producer”. In this instrument Nu-trena Mills agreed to extend financial assistance to the Van Deweghes in the purchase of laying hens for a maximum' amount of $3,000.00. These excerpts from-the written agreement show the contract’s, scope and purpose:

“ 2. Egg Producer may use the financial assistance made available hereunder by Nutrena to purchase, in the manner hereinafter set forth, the following items in amounts which will' not exceed a per bird allowance of: Nutrena Feed $_0 Baby Chicks $ _0‘ Started Chickens $1.50. * * *
* * %
“4. Egg Producer agrees to purchase and use only Nutrena Feeds for said chickens and will purchase such feed from Nutrena Mills, Inc., a Nu-trena dealer, at Wichita Falls, Texas-(State) Texas. Egg Producer realizes that should he cease to use Nutrena Feeds while any indebtedness is outstanding under the terms of this Agreement, the entire unpaid balance owing shall, at the option of Nutrena, become due and payable immediately. * * *„
" * * *
“16. This Agreement is not intended to be a contract of sale, but, rather, is intended to be a financing agreement setting forth the conditions under which credit may be extended to Egg. Producer and, * *

Paragraph 4 of the Finance Agreement is-designed to place economic pressure upon the Van Deweghes to purchase Nutrena feed for the chickens financed under the Contract. The provision that the Van Deweghes are to purchase from “Nutrena Mills, Inc., a Nutrena dealer, at Wichita Falls, Texas”, imports an understanding that such dealer will sell them feed, but leave indefinite and unspoken the terms of purchase. The Van Deweghes admit that they made no effort to purchase Nutrena feed from any source except A. R. Anderson, an independent merchant. The proof shows that this independent merchant handled Nutrena feed and sold the Van De-weghes the only feed of concern to this suit. The Van Deweghes paid him for it. There is no testimony the Van Deweghes pur•chased feed directly from Nutrena Mills, or that the relationship of hujier and seller existed between them.

Apparently the feed delivered by A. R. Anderson to the Van Deweghes was manufactured by Nutrena Mills. Under the pleading and proof this fact is immaterial. Breach of warranty was not plead, not even •defectively. But if it might be asserted that .a breach of warranty action was tried with■out objection, still the evidence will not support a finding that the feed was moulded when it was delivered by Anderson to the Van Deweghes. Several days after the Van Deweghes took delivery of approximately 2,000 young hens Anderson, the independent merchant, delivered 16,000 pounds of feed and placed it in a feed storage tank on the Van Deweghe farm. It was .approximately three weeks after delivery that the Van Deweghes first noticed the moulded condition of the feed. The record contains no proof that the feed was mould-ed at the time Anderson delivered it, or that the mould condition was inherent in the feed, attributable to or probably caused by or connected with Nutrena Mills. Although decision is grounded on the points discussed, it may also stand on the absence •of evidence to support a finding that mould-ed feed caused sickness to strike among the chickens or caused a decline in egg production.

This court has no choice and must sustain the appellant’s points of error directed to these matters. See Appeal and Error, Civil Case, 4 Tex.Jur. (2d) 398 Sec. 839 and cases listed in Footnotes 13, 15 and 16.

In accordance with appellant’s first alternative prayer and the judge’s findings of fact the judgment of the trial court is reformed to eliminate the award of $2,736.58 allowed as damages to appellee and set off against the $2,986.58 the judge found the appellant entitled to recover, and as reformed the judgment will allow a recovery by the appellant of $2,986.58, instead of $190., with interest, costs, etc., and the cross-appeal is dismissed for the reasons stated in the forepart of the opinion.


author: MURRAY, Chief Justice.

text:
    Luther THOMAS, d/b/a Thomas Gin Company, Appellant, v. FIRST NATIONAL BANK OF MISSION, Texas, Appellee.
    No. 14285.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1964.
    Rehearing Denied Nov. 25, 1964.

      Petry & Fitzpatrick, John W. Claybrook, Carrizo Springs, for appellant.
    Strickland, Wilkins, Hall & Mills, Asa V. Bland, Mission, for appellee.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Zavala County by First National Bank of Mission, Texas, hereinafter called Bank, against J. M. Warren, hereinafter called Warren, and Luther Thomas, d/b/a Thomas Gin Company, hereinafter called Gin Company, seeking to recover against Warren the amount of principal, interest and attorney’s fees due upon one certain note in the principal sum of $38,465.77, and against Gin Company for the sum of $33,580.65, being the value of 265 bales of cotton alleged to belong to Warren, mortgaged by him to Bank, and allegedly converted by Gin Company. The trial was to a jury and resulted in judgment in favor of Bank against Gin Company for the sum of $21,232.02, together with interest, and providing that the sum of $4,243.56, now held by Bank, be immediately applied as a credit upon the judgment, and providing further that Bank recover of Warren the further sum of $12,507.72, together with interest, and that Gin Company recover from Warren the sum of $16,988.46, together with interest, from which judgment Gin Company alone has appealed.

The parties agree that this appeal presents but two main questions, to-wit: “(1) Did the trial court err in not submitting an issue to the jury inquiring as to whether or not the defendant, mortgagor, J. M. Warren, was the owner of the cotton in question? (2) Did the trial court err in submitting Appellant’s requested Issue No. 1 inquiring whether Appellee had consented to the sale of the cotton in question?”

On April 1, 1958, Warren executed a chattel mortgage in favor of Bank covering cotton to be grown upon some 400 acres of land belonging to Four Way Land Company, Inc., located in Zavala County, Texas, to secure Bank in the payment of a $30,-000.00 note. This note was thereafter extended and an additional advance made under the chattel mortgage, which increased the note to the principal sum of $38,465.77. This chattel mortgage was timely recorded in Zavala County.

Thereafter Gin Company made advances to Warren for seed, fertilizer, insecticides, etc., totaling the sum of $21,232.02. Warren, either individually or as manager of Four Way Land Company, a corporation, produced 265 bales of cotton on the 400 acres, and this cotton was sold by Gin Company for the sum of $37,671.43, which sum Bank contends was converted by Gin Company.

Warren at one time owned the 400 acres upon which the cotton was grown, but he conveyed it to Four Way Land Company, Inc., hereinafter called Four Way, of which he was the manager and principal stockholder. The corporation was formed for the purpose of growing and selling crops. The deed conveying the land to the corporation was properly recorded in Zavala County. Warren had pledged all of his stock to Hartford Accident and Indemnity Company. Warren testified that he had an oral agreement with the corporation concerning the use of the 400 acres.

Appellant contends that under these facts a question was raised as to whether the cotton belonged to Warren or to the Corporation. No issue was requested by the Bank and none was submitted to the jury as to the ownership of the cotton. Warren gave the Bank the chattel mortgage in his name, and if he was not the owner of the cotton, then he had no right as an individual to create a lien on this cotton that would be binding on the true owner or on the Gin Company.

It occurs to us that the burden was upon the Bank to allege, prove and secure from the jury a finding that the cotton belonged to the mortgagor. Warren stated that he had an oral agreement with the corporation concerning the use of the 400 acres, but this testimony was not conclusive upon Gin Company. Bank alleged that the cotton was grown upon the 400 acres belonging to Four Way, that Warren had a lease contract with Four Way whereby he was entitled to farm the land for his own use, and therefore he was the owner of the crop when he gave the chattel mortgage in April, 1958. Bank failed to prove, and certainly did not conclusively prove, that Warren had a lease contract with Four Way, or the terms of any such lease if in fact one existed. Thus Bank failed to show that Warren was the owner of the crop at the time he gave the chattel mortgage. The burden was upon Bank to prove that it had a valid first mortgage upon the crop, and in order to do this it undertook to prove that the cotton crop was owned by Warren under a lease contract with Four Way, the owner of the land upon which the cotton was grown. In attempting to discharge this burden the Bank solicited from Warren the fact that he had an oral contract with Four Way concerning the use of the land. Warren was taken on voir dire examination and admitted that he based his statement upon conversations which took place before the corporation was formed. He further testified there was conversation afterward but did not state with whom, or of what the conversation consisted. Ralph Cadwallader, Esq., who owned a share of stock in Four Way and was its secretary, testified that Warren was to stay in possession of the land, was to pay the taxes and was to pay the Travelers Insurance Company loan whenever he could, and to make other payments. He did not testify that the corporation leased the land to Warren. He further testified that there was nothing in the minutes of the corporation with reference to any lease contract.

This evidence is insufficient to show that Warren had a lease contract with Four Way, and if so what its terms were. These were bare conclusions or opinions of Cad-wallader, without any basis of fact, and had no probative force. Webb v. Reynolds, Tex.Com.App., 207 S.W. 914.

There is a presumption that crops growing upon land belong to the owner of the land. In 15 Am.Jur., § 7, p. 199, it is stated: “The ownership of realty carries with it, as an incident thereto, the prima facie presumption of the ownership of both the natural products of the land and annually sown crops.”

The fact that Warren was in possession of the land does not establish his ownership of the crop; being president and manager of the corporation, he was the proper person to be in possession. In 13 Am.Jur. p. 960, § 1008, it is stated: “The general rule that the possession of a trustee or agent is not deemed adverse to his cestui que trust or principal applies to the officers of corporations who have possession of land belonging to the corporation until they give notice to it of an intent to hold for their personal benefit.” The Bank undertook to prove that Warren, and not Four Way, was the owner of the cotton because he had leased the land from the corporation. This it failed to do. Rhea Mortgage Co. v. Lemmerman, Tex.Com.App., 10 S.W.2d 690; Trott v. Flato, Tex.Civ.App., 244 S.W. 1085.

Even if the evidence offered by Bank had been sufficient to raise a fact issue'as to whether Warren was the owner of the cotton crop at the time he gave the chattel mortgage to Bank, it would have been the Bank’s duty to except to the court’s charge for failure to submit an issue upon this matter and also to request an issue upon the same, and having failed to do either, waived its right to a jury finding on the issue. Rules 274 and 279, Texas Rules of Civil Procedure; Strauss v. LaMark, Tex., 366 S.W.2d 555; Zachry v. McKown, Tex.Civ.App., 326 S.W.2d 227; Schwarz v. Smith, Tex.Civ.App., 325 S.W.2d 407, writ ref. n. r. e., 160 Tex. 280, 329 S.W.2d 83; Long v. City of Austin, Tex.Civ.App., 265 S.W.2d 632.

Gin Company excepted to the court’s charge for failure to submit the issue, and that is all that was required of it, this being an issue essential to Bank’s cause of action, with the burden of proof on it. None of Bank’s issues were submitted to’ the jury and none were requested. If Warren did not own the cotton crop at the time he gave the chattel mortgage it did.not constitute a first lien in favor of Bank on the cotton.

Bank contends that Gin Company cannot claim that the cotton belonged to Four Way, unless it could show that it had a claim, title or interest in the cotton derived from Four Way. We do not agree. In the first place, the burden was upon Bank to show ownership in Warren before Gin Company would be required to show anything, and, secondly, if the cotton belonged to Four Way it did not belong to Warren, and this is true whether Gin Company had any claim, title or interest derived from Four Way or not. In this connection, Bank cites the case of Zorn v. Brooks, 125 Tex. 614, 83 S.W.2d 949, holding in effect that a contract between a corporation and one of its officers is not absolutely void if fair and free of fraud, but the trouble here is that Bank had failed to prove that any contract existed between Four Way and Warren. Bank also cites Phil H. Pierce Co. v. Rude, Tex.Civ.App., 291 S.W. 974. In that case a lease contract was made by the promoters of the corporation before it was formed and ratified and adopted by the corporation after it was formed. Here Bank has not shown that a lease contract was ever made, and has completely failed to show a ratification or adoption by Four Way of any contract after it was incorporated. If there was any evidence to this effect the question should have been submitted to the jury. It is quite clear that if a lease contract had been shown between Warren and Four Way, then Gin Company, not being a party to such lease contract, would not be allowed to set such contract aside for fraud or other reasons. The point is that Bank failed to discharge the burden resting on it of establishing the terms of a lease contract between Four Way and Warren.

Gin Company next contends that in any event Bank gave Warren permission to sell the cotton and thereby waived its alleged chattel mortgage lien. On this point L. A. Buescher, executive vice-president of Bank, testified as follows:

“At the time Mr. Warren was down there I asked him why he didn’t get this cotton in and he said, ‘They are gathering it there at the gin. They will account to you for the whole thing at the same time.’ I agreed, and then I said ‘If you are going to put it in the cotton loan, all right, otherwise, the cotton should be sold and applied on the note.’ ”

Mr. Buescher also testified that:

“This is customary, Mr. Petry, for the gin to harvest it; and
“Q: Was it your plan and did you anticipate that the cotton would be harvested, taken to the gin, sold and the proceeds brought to you for credit on the note?
“A: That is right. That is customary in every case I know of.”

We feel that this testimony shows that the Bank had authorized Warren to dispose of the cotton and bring Bank the money. When the Bank authorized Warren to dispose of the cotton, it made Warren its agent to bring the money to the Bank, and if he failed to do so it was failure of Bank’s agent.

Bank contends that in any event it did not authorize the Gin Company to sell the cotton. If it authorized Warren to dispose of the cotton he was at liberty to do SO' through any agency he might choose. Warren did not testify that he did not authorize Gin Company to sell the cotton. In fact, the record discloses that both the Bank and Warren knew of the manner in which Gin Company handled the gathering, ginning and selling of cotton, and did not object to it. Bank’s complaint is not that the cotton was sold, but that Bank did not get the money. Under such circumstances the Bank waived its chattel mortgage lien.

The burden of proof being upon Bank to show that Warren was the owner of the cotton crop at the time he gave it the chattel mortgage, and even if there was some evidence of this fact, the Bank’s failure to1 secure a jury finding on the matter waived the issue and therefore it cannot now recover on this basis. Rules 274 and 279, T.R.C.P.

The judgment of the trial court is reversed and the cause remanded to the trial court for rendition of judgment in keeping with this opinion.


author: BARROW, Justice.

text:
    FIRST NATIONAL BANK OF LULING, Texas, et al., Appellants, v. George V. NUGENT et ux., Appellees.
    No. 14294.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 4, 1964.
    Rehearing Denied Dec. 2, 1964.
    Denver E. Perkins, Gonzales, M. K. Ber-caw, Freer, Edwin P. Slater, Luling, for appellants.
    Lloyd, Lloyd, Dean & Ellzey, Alice, for appellees.
   BARROW, Justice.

This is an appeal by The First National Bank of Luling, Texas, and Clarence Doyle, trustee under a deed of trust, from a judgment permanently enjoining them from attempting to collect or foreclose a note and deed of trust owned by the Bank, which had been executed by appellees, George V. Nugent and wife, Myra June Nugent, and further nullifying and canceling said note and deed of trust.

On June 27, 1957, appellees executed the note, hereinafter referred to as the “house note,” in the principal sum of $7,500, to finance the construction of a house, and secured same by a deed of trust on a two-acre tract of land located in Duval County, Texas. The note was assigned to the Bank and regular monthly payments of $94.95 were made on the note through the month of January, 1963. No further payments were made, and on April 30, 1963, appellees brought this suit whereby they asserted that the house note had been released by a written agreement of November 16, 1962. Appellant Bank by counter-claim denied that this note was released and prayed for a judicial foreclosure of its lien.

This appeal is determined by a construction of the agreement. The trial court construed the agreement as releasing the house note, and entered judgment for appellees. In our opinion the agreement is not subject to this construction.

The agreement was entered into by and between George V. Nugent as purchaser, and H. M. Ainsworth, H. M. Ainsworth, Jr., and Dulce Oil Company as sellers. At that time, Nugent and his father, L. V. Nugent, and the Ainsworths, jointly owned all the stock in three corporations, to-wit: J. D. Well Service Co., Seven Sisters Machine & Supply Co., and Dulce Oil Co. A controversy developed between said parties and the agreement of November 16, 1962, was executed after a day-long discussion between George V. Nugent and his attorney, on the one hand, and the Ains-worths and two attorneys representing them, on the other hand.

The terms of this agreement, as material to this suit, are that the Ainsworths and Dulce Oil Company, as sellers, agreed to convey to Nugent, as purchaser, all their stock in J. D. Well Service Co., and Seven Sisters Machine & Supply Co., together with all the assets of Dulce Oil Company, except the cash on hand and in its bank account. Purchaser agreed to give Dulce Oil Company a J^th overriding royalty interest in all producing properties and further agreed to convey all his stock in Dulce Oil Company to Ainsworths. As further consideration, Purchaser agreed to pay $20,000 cash, and to pay five specifically designated notes which had been executed by one or more of the corporations or the owners thereof and which were then the subject matter of four pending suits. Two of these notes were payable to appellant Bank, and one of the pending suits had been brought by it.

The house note was not specifically mentioned in the agreement, but appellees assert that it was released by paragraph II (H) of the Agreement. In addition, paragraph XXIII. provides: “This Agreement covers, includes and settles all agreements and controversies by and between the parties whether herein mentioned or not.”

Appellant Bank was not a party to the above agreement, although it did execute a supplemental agreement which provides: “THE FIRST NATIONAL BANK OF LULING, Texas, has read and understands the above and foregoing Agreement by and between George V. Nugent and H. M. Ainsworth, Et Al, and agrees to dismiss any and all suits on file by First National Bank of Luling against George V. Nugent or L. V. Nugent or both at the time of the closing as specified in said Agreement.” This supplemental agreement was executed by H. M. Ainsworth as Chairman of the Board of said Bank.

It is seen that the only affirmative obligation assumed by the Bank in the supplemental agreement was to dismiss any suit filed by it. No suit was then pending on the house note and it was not in default until more than two months later. Ap-pellees assert that since Ainsworth was the executive officer of the Bank and his family owned 60% of the stock, the agreement was made by him on behalf of the Bank. The agreement does not so recite and no attempt was made by appellees to reform the agreement.

The fact that the Bank agreed that it had read and understood the agreement adds nothing to its covenants. The house note was not mentioned in the agreement, although five notes were specifically described. Paragraph II (H) recites that “Purchaser shall pay the sum of $1,636.45 in full payment of all of the accrued interest, attorneys fees and court costs in connection with all promissory notes, suits', causes of action, liabilities and controversies presently existing or on file between George V. Nugent, L. V. Nugent, J. D. Well Service, Inc., and Seven Sisters Machine and Supply, on one hand, and H. M. Ainsworth, H. M. Ainsworth, Jr., Dulce Oil Company and First National Bank of Luling, Texas, on the other hand, or between any of them individually, * * *.” (Emphasis ours.) An exhibit was introduced by one of the attorneys who represented Ainsworth in the preparation of the agreement, which showed tire computations which were the basis of this amount. These computations, which were not challenged, did not include the house note.

Paragraph II (H) further provides that in consideration of the payment of said sum by Purchaser, “H. M. Ainsworth, H. M. Ainsworth, Jr., and Dulce Oil Company will release or cause to be released, dismiss or cause to be dismissed, with prejudice, any and all suits filed by any of them and any and all notes and obligations so paid under the terms of this agreement, together with all chattel mortgages, deeds of trust and liens presently existing on properties owned by George V. Nugent, L. V. Nugent, J. D. Well Service, Inc., Seven Sisters Machine and Supply, and any properties being transferred pursuant to this agreement, * * It is seen that the Bank agrees to do nothing by this covenant.

It is therefore our opinion that, under the plain and unambiguous language of the agreement, the Bank did not covenant to release the house note or the deed of trust securing same. Furthermore, we cannot construe the general terms “all notes and obligations” contained in Par. II (H), and the general statement contained in Par. XXIII into a release of all obligations owed by appellees, including the unmentioned house note owed the Bank. Even assuming that the Bank adopted all covenants of the agreement, the parties by setting forth and describing with particularity the five notes, excluded the unmentioned house note under recognized rules of construction.

The maxim “expressio unius est exclusio alterius” applies in this situation and forbids a construction of these general terms to include the house note. This rule is stated in 17A C.J.S. Contracts, § 312, as follows: “ * * * the expression in a contract of one or more things of a class implies the exclusion of all not expressed, even though all would have been implied had none been expressed.” This maxim is recognized in Texas. Hegar v. Tucker, Tex.Civ.App., 274 S.W.2d 752, writ ref. n. r. e.; Tower Corp. v. Morris, Tex.Civ. App., 153 S.W.2d 654, wr. ref. w. o. m.; 13 Tex.Jur.2d, Contracts, §§ 139, 140.

The judgment of the trial court is reversed and the cause remanded for entry of judgment of foreclosure on appellants’ deed of trust.

      . “H. Purchaser shall pay the sum of $1,636.45 in full payment of all of the accrued interest, attorneys fees and court costs in connection with all promissory notes, suits, causes of action, liabilities and controversies presently existing or on file between George Y. Nugent, D. Y. Nugent, J. D. Well Service, Inc., and Seven Sisters Machine and Supply, on one hand, and H. M. Ainsworth, H. M. Ains-worth, Jr., Dulce Oil Company and First National Bank of Puling, Texas, on the other hand, or between any of them individually, and in consideration of which H. M. Ainsworth, H. M. Ainsworth, Jr. and Dulce Oil Company will release or cause to be released, dismiss or cause to be dismissed, with prejudice, any and all suits filed by any of them and any and all notes and obligations so paid under the terms of this agreement, together with all chattel mortgages, deeds of trust and liens presently existing on properties owned by George Y. Nugent, L. Y. Nugent, J. D. Well Service, Inc., Seven Sisters Machine and Supply, and any properties being transferred pursuant to this agreement, and in a like manner, George Y. Nugent will release or cause to be released, dismiss or cause to be dismissed, with prejudice, any and all suits filed by himself against any of the aforementioned parties.”


author: BELL, Chief Justice.

text:
    Dolores Sparks SELIGMAN et vir, Appellants, v. William H. SPARKS, Jr., Appellee.
    No. 14405.
    Court of Civil Appeals of Texas. Houston.
    Nov. 19, 1964.
    Dotson & McFarland, Gordon A. Dotson, Houston, for appellants.
    Cesare J. Galli, Jr., Houston, Herman W. Mead, Houston, of counsel, for appellee.
   BELL, Chief Justice.

Appellant, Dolores Sparks Seligman, and appellee were husband and wife. Ap-pellee obtained a divorce from said appellant in June of 1952. The judgment in the divorce case recites that “the court finds from the pleadings and evidence that the parties had settled their community property rights prior to the filing of the suit.” The judgment makes no attempt to dispose of the community property or to state what the agreed division between the parties was.

On October 22, 1962, appellant, Mrs. Seligman, joined by her husband, filed suit against appellee, seeking to recover an undivided one-half interest in two tracts of land in Harris County, each containing 1.08 acres. By a second amended petition filed after she learned the property had been sold, Mrs. Seligman sets up that at the time of the granting of the divorce the parties agreed they would later partition their community property. She then sets out that the community property consisted of the two tracts of land and personal property consisting of an automobile of unknown value and furniture of the probable value of $1500.00. She alleges the land was being bought at the time under a “contract of purchase”. She asserts that appel-lee had, when the purchase price was paid in 1956, procured a deed from the sellers conveying title to himself and that in 1962 he sold the property for approximately $17,500.00 and that there remained owing on the purchase price approximately $11,-750.00. She claims a one-half interest in the total sales price. She asserts she first learned of the sale about March 1, 1963.

Appellee, in his second amended original answer, alleges that prior to the divorce the parties entered into an agreement partitioning the small amount of their community property. The agreement was that Mrs. Seligman was to receive the furniture and appellee was to receive the equity in land and an old automobile worth about $150.00 and he was to assume all community debts alleged to be about $1500.00 in amount. The furniture was alleged to have a value of approximately $1,000.00. The equity in the land was alleged to have been $875.-00. Appellee alleges that in reliance on the agreement he paid off, after the divorce, the balance due on the land and Mrs. Selig-man is estopped to assert any interest. He alleges he tendered the furniture to her but she told him to keep it as their son needed it. Custody of the 10 year old boy was given appellee by the divorce decree. Various statutes of limitation were pled.

The evidence shows that on July 22, 1948, during the marriage, appellee entered into a contract with the owners to buy the land for $2,160.00. Payment was to be made at the rate of $25.00 per month. Interest was at the rate of 5% per annum. If default was made in any payment, sellers at their option, could cancel the contract. If full payment was made, sellers agreed to convey by general warranty deed. In 1949 a separate contract was made as to each lot, reciting the consideration for each lot was $1,080.00.

We will not notice all of the trial court’s findings of fact, but only those that are determinative of the appeal.

He found that prior to the divorce the parties agreed upon a partition of their property. In this connection he found that at the time of the divorce $917.08 had been paid on the contract to purchase the land. By the agreement appellee was to receive and did receive all of the interest of the parties under the contracts of purchase and an old automobile. Appellee assumed community debts, other than that owing under the contract of purchase, in the amount of more than $1,000.00. Mrs. Seligman was awarded the furniture valued at approximately $1,000.00.

It was also found that Mrs. Seligman knew of the balance due on the contracts of purchase; that at no time had she paid or offered to pay any part of the balance owing or any taxes.

These findings of fact are supported by the evidence. The evidence was conflicting but the trial court has resolved the conflict.

We are of the view that the trial court’s judgment is sustainable, first, on the ground that the parties had in fact partitioned their community property as found by the trial court. The evidence as to values shows the division was fair and equitable.

Additionally, we are of the view that under the “contract for deed” if at the time of the divorce Mrs. Seligman had any equitable right to acquire an interest in the land she by her subsequent conduct abandoned her right and is now estopped to assert it. Under the trial court’s finding, which is supported by evidence, she made no payments on the land, made no payment of taxes, and made no offer to do so. The evidence also shows she stated she wanted no interest under the contracts and her first assertion of an interest came after the balance owing had been paid by appellee and after the land had greatly increased in value. Myers v. Crenshaw, Tex.Civ.App., 116 S.W.2d 1125, aff’d on other points by Com. of App., 134 Tex. 500, 137 S.W.2d 7; Johnson et al. v. Smith et al., 115 Tex. 193, 280 S.W. 158.

Judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    Larry CUNNINGHAM et al., Appellants, v. FORT WORTH PIPE & SUPPLY COMPANY OF ABILENE, Appellee.
    No. 16575.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 6, 1964.
    Bryant, Glenn and Thomas, and Allen Glenn, Abilene, for appellants.
    Stone, Parker, Snakard, Friedman & Brown, O. P. Newberry, Jr., and James A. McMullen, III, Fort Worth, for appellee.
   RENFRO, Justice.

This is a venue case.

Defendants appealed from an order of a district court of Tarrant County which overruled their pleas to be sued in Taylor County. Plaintiff invoked sub-section 5,, Art. 1995, Vernon’s Tex.Civ.St., by alleging defendants agreed in writing to pay for certain goods, wares and merchandise in Tarrant County.

In their only point of error defendants assert their pleas of privilege should have been sustained “because plaintiff failed to meet its burden of proving existence of an exception to Art. 1995.”

The statement of facts was not filed within the 20 day period provided by Rule 385, Texas Rules of Civil Procedure, and motion for extension of time for good cause was not filed within 5 days thereafter as allowed by said rule; hence, the appeal is before us without a statement of facts. Huckman v. Campbell, 252 S.W.2d 604 (San Antonio Civ.App., 1952). Defendants’ point of error challenging the sufficiency of the evidence could be determined only by referring to the statement of facts.

Without a statement of facts it will be presumed the evidence was sufficient to support the judgment. 3 Tex.Jur.2d 703, § 452; Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549 (1946); City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860 (1952); Ollok v. United Heat Treating Co., 318 S.W.2d 785 (Fort Worth Civ.App., 1958, no writ hist.).

There being no other question before us, the judgment is affirmed.

Affirmed.


author: GREEN, Chief Justice.

text:
    Leonard William MICKELSON, Appellant, v. Virginia Ann MICKELSON, Appellee.
    No. 87.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 12, 1964.
    J. J. Duckett of Duckett & Duckett, El Campo, for appellant.
    Percy Foreman, Houston, Luther Jones. Jr., Corpus Christi, for appellee.
   GREEN, Chief Justice.

This appeal is from a judgment granting a divorce. On October 29, 1964, a joint motion was filed in this court, signed by counsel of record for appellant and appel-lee, stating that the parties have become reconciled and are now living together as husband and wife, and asking that the judgment granting the divorce be reversed, and that the cause be remanded to the trial court with instructions to dismiss this suit.

This court ha's authority to act upon and grant this motion. Appellate Procedure in Texas, § 18.22; San Jacinto Rice Co. v. Hamman, Tex.Com.App., 247 S.W. 500; Southern Underwriters v. Evans, Tex.Civ.App., 112 S.W.2d 542; St. Louis, B. & M. Ry. Co., et al., v. Texas Mexican Ry. Co., Tex.Civ.App., 212 S.W.2d 502.

The agreed motion to reverse is granted, and this cause is remanded to the District Court of Wharton County, Texas, with instructions that the case be dismissed.

Costs of the appeal are assessed equally between the parties.