author: YOUNG, Justice.

text:
    Gene GUYNN, d/b/a S & J Specialty Company and Ed Hodges, Appellants, v. CORPUS CHRISTI BANK & TRUST, Coastal Tubular Sales, Inc., Jack Trice, Japan Cotton Company, Inc. and Nichimen Company Ltd., Appellees.
    No. 1383.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 4, 1979.
    Rehearing Denied Nov. 15, 1979.

      Carl C. Chase, Corpus Christi, for appellant.
    F. Marshall Boykin, III, Dudley B. Foy, Jr., Wood, Boykin & Wolter, Corpus Christi, for appellee.
    Rick Rogers, Porter, Gonzalez & Rogers, Corpus Christi, for appellees.
    Joe B. Harrison, Hubert A. Crouch, III, Wynne & Jaffe, Dallas, for appellants.
   OPINION

YOUNG, Justice.

This is an appeal from the granting of an instructed verdict. Gene Guynn (Guynn) d/b/a S & J Specialty Company (S & J) and his partner Ed Hodges (Hodges), appellants, brought suit against Corpus Christi Bank & Trust (Bank); Coastal Tubular Sales, Inc. (Coastal); Jack Trice, individually (Trice); Japan Cotton Company (Japan); Pete Sub-lett & Company, Inc. (Sublett); and Nichi-men Company Ltd. (Nichimen), wherein appellants alleged several different causes of action in connection with a large purchase of high pressure N-80 oil field pipe. Trial was to the court with a jury. At the close of the appellants’ case the trial court granted an instructed verdict in favor of each of the appellees herein. This appeal by the plaintiffs followed.

Among other things, plaintiffs alleged that prior to the transactions made the basis of this suit, Guynn (through S & J) had been in the business of buying and selling oil field tubular goods. The events culminating in this suit began, according to plaintiffs’ petition, when the plaintiffs realized that the supply of oil field seamless tubing had become short in the continental United States. This shortage of pipe precipitated a trip to Taiwan by the plaintiffs where they obtained a firm offer of tubing as evidenced by a document attached to their petition.

This attached document, referred to as “Contract No. TKC-822/75”, provided for the delivery of 900,000 feet of pipe to S & J at the port in Houston. Payment for the pipe was to be by an irrevocable and confirmed letter of credit through a first class bank and payable to Nichimen. If the letter of credit was not in Nichimen’s hands by August 29,1975, (Tokyo time) then the contract was to be automatically cancelled.

Later, plaintiffs alleged, they entered into a joint venture with Coastal through Trice, one of its officers, to purchase and sell the pipe. Coastal became obligated to secure the financing of the venture. Further, Trice and the Bank subsequently led plaintiffs to believe that the financing had been completed.

Then, according to plaintiffs’ allegations, Coastal, with the wrongful help of the Bank, Japan and Nichimen, entered into a joint venture with Sublett. This joint venture resulted in the purchase of the pipe (which had been contracted for by the plaintiffs) by Coastal and Sublett, thereby excluding the plaintiffs from participation in the profits to be made from the sale of the pipe.

Guynn and Hodges also alleged that all the defendants tortiously interferred with the Nichimen contract, which action caused the contract to be cancelled and that the defendants conspired to use such contract for their own use and benefit. Guynn and Hodges further alleged that the bank violated its obligation to properly send, receive and deliver telex messages under 47 U.S. C.A. § 206 (1962) and § 605 (Supp.1979); that all the defendants conspired to defraud both Guynn and Hodges and to interfere with their contract, so that they could not realize the benefit of their contract; and that Guynn and Hodges were engaged in a joint venture with Trice and Coastal such that a fiduciary relationship existed which was breached by Trice. Plaintiffs prayed for damages, an accounting, and a constructive trust, or in the alternative the six cents per foot commission which had been provided for in the Coastal-Sublett joint venture agreement.

Appellant brings five points of error. Appellants’ points 1, 2 and 3 are vague, and incorporate several concepts into one point of error, so we will look to the argument under these points to determine whether we can ascertain the precise nature of appellants’ complaints. Bass v. Metzger, 569 S.W.2d 917, 923 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.).

There is a voluminous record in this case consisting of over 1500 pages of testimony and exhibits. Much of the evidence appellants attempted to introduce at trial consisted of telexes of the parties concerning the purchase and sale of oil field pipe. Most of the telexes were excluded because the appellants did not properly establish the authenticity of the documents under Tex. Rev.Civ.Stat.Ann. art. 3737e (Supp.1978). No testimony was allowed concerning the contents of the excluded telexes.

Appellants’ argument under points 1, 2 and 3 begins with a 42 page narrative summarizing the testimony of the entire trial. The summary identifies the witnesses called, explains some of the testimony elicited, and described testimony that was excluded. The only allegations of error in this 42 page statement are occasional references to Rule 182, T.R.C.P., which the appellants refer to as the “adverse party rule” and occasional references to the rule that “admissions against interest” are an exception to the hearsay rule.

Then beginning on page 53 of their brief, appellants make three general assertions. First, they assert that Rule 182, T.R.C.P., “governs the rules of admissibility of evidence, both from a testimony standpoint and from a documentary standpoint relating to adverse parties.” (Emphasis added). Appellants further argue that Rule 182 is the basic rule of evidence regarding the testimony of an adverse party in a civil suit; that it gives the party adverse to the witness the right to introduce evidence upon any issue involved in such suit or proceeding without regard to the testimony of the adverse witness. Appellants then further assert that all of the complaints set out in the earlier portions of their brief are errors relating to the failure of the trial court to allow counsel for plaintiffs to introduce evidence within the provisions of Rule 182.

Second, appellants argue that the trial court should have admitted some of the excluded evidence because the evidence constituted testimony relating to violations of 47 U.S.C.A. §§ 206 and 605, supra.

Third, the appellants argue that the telexes and testimony excluded should have been admitted because the statements contained in the telexes and the testimony were those of co-conspirators; citing e. g. Walter E. Heller & Company v. Barnes, 412 S.W.2d 747, 757 (Tex.Civ.App.—El Paso 1967, writ ref’d n. r. e). These arguments, though, do not direct us to the evidence in the record on the points in the brief to which they apply. See Rule 418, T.R.C.P. Apparently, appellants are asking this Court to scan the 42 page narrative in their brief and also scan the record, with these three general rules (concerning Rule 182, U.S.C.A. violations and statement of co-conspirators) in mind, and determine whether any of them, if applied, would have provided for the admission of evidence in a situation where it was excluded. The only apparent direction we have in this regard is the appellants’ statement that all the complaints in the brief are errors relating to Rule 182.

Rule 418, T.R.C.P., provides standards for the proper briefing of cases. It has long been the policy of this Court to indulge á liberal construction of the briefing rules in favor of the sufficiency of the brief, and to give effect thereto if we, from an examination of the statement under each point (or grouped points), can determine with some degree of certainty the nature of the complaint raised by the point. Rio Delta Land Co. v. Johnson, 566 S.W.2d 710, 713 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.). We find it would be a monumental task indeed to apply the appellants’ three general assertions to each and every item of excluded evidence complained of in appellants’ brief: The points are too unspecific to guide this Court to a sufficient understanding of errors asserted.

Even so, if these points could somehow be properly considered by us, we would find no error. Rule 182 is not a rule which controls the admissibility of specific items of evidence. While it does relate to whether a party can introduce impeaching testimony concerning an adverse witness’ statements, it is primarily intended as a rule of procedure. Rule 182 does not give a party unbridled power to introduce any document or elicit any testimony that might be relevant to his case. Rule 182 was intended to work in conjunction with, rather than as a replacement for, the standard rules of evidence. Also 47 U.S.C.A. §§ 206 and 605, supra, are not rules of evidence; thus, the only bearing these provisions would have upon the admissibility of any particular document or testimony would be their relevance or materiality to the issues at hand. Finally, the rule with regard to the statements of co-conspirators is, indeed, a rule which controls the admissibility of evidence. See Walter E. Heller & Company v. Barnes, supra at 757. This rule, however, by itself, does not provide for the admission of any document that has not been properly authenticated as originated by the co-conspirator charged with having drafted the statement therein. Compare Pope and Hampton, Presenting and Excluding Evidence, 9 Tex.Tech.L.Rev. 403, 416 (1978). Appellants also mentioned “admissions against interest.” While we are unsure whether the appellants are referring to declarations against interest or admissions, we note that though a declaration is against one’s interest, if it is made in the form of a document, then there must be some form of proof which indicates that the purported declar-ant was the one making such document. Compare Menefee v. Bering Mfg. Co., 166 S.W. 365 (Tex.Civ.App.—Fort Worth 1914, no writ); see Article 3737e, supra. Appellants’ points 1, 2 and 3 are overruled.

Appellants’ point 4 contends that because they raised fact issues the trial court erred in granting the instructed verdict for the appellees.

At the close of the appellants’ case, each of the appellees presented a motion for instructed verdict, each of which included at least ten reasons why the trial court should grant the motion. The trial court granted each of the motions for instructed verdict, thereby ordering that the appellants take nothing. No specific reasons were mentioned in the judgment why the trial court granted the motions for instructed verdict.

Where an instructed verdict is granted, there are certain presumptions which a reviewing court must follow in determining whether there are grounds for reversal. First and foremost, the appellate court must undertake an examination of the facts following the presumption that all evidence must be reviewed in a light most favorable to the appellant. Constant v. Howe, 436 S.W.2d 115 (Tex.Sup.1968). The court must: (1) accept as true all evidence supporting the appellant’s allegations; (2) resolve all conflicts and inconsistencies in favor of the appellant; and (3) draw all inferences favorable to the appellant. Constant v. Howe, supra; Thornhill v. Sharpstown Dodge Sales, Inc., 546 S.W.2d 151 (Tex.Civ.App.—Beaumont 1976, no writ). Further, if there is no evidence of probative force establishing or tending to establish one or more of the ultimate fact elements involved in the contract relied upon, or if the slight probative force of testimony with reference thereto is so weak that it only raises a mere surmise or suspicion of the existence of some or all of the essential facts sought to be established, then it is the duty of the trial court to withdraw the case from the jury or to instruct the verdict. South Texas Water Co. v. Bieri, 247 S.W.2d 268 (Tex.Civ.App.—Galveston 1952, writ ref’d n. r. e.); Perren v. Baker Hotel of Dallas, Inc., 228 S.W.2d 311 (Tex.Civ.App.—Waco 1950, no writ); see also 3 McDonald, Texas Civil Practice § 11.28.1 (1970).

There are also certain presumptions which establish the burden upon the appellant during the review of an instructed verdict. The burden rests upon the appellant to establish that he has presented “some evidence” on each and every element of the various causes of action in the pleadings. 3 McDonald, Texas Civil Practice § 11.28.1 (1970). The question of what is “some evidence” is controlled by the scintilla rule set out in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960).

The appellant also has the burden of showing to the appellate court that the instructed verdict could not be supported on any of the grounds set out in the appellee’s motion. A case which clearly demonstrates this burden is McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex.Sup.1964). There, the trial court granted the defendant’s motion for instructed verdict based upon twenty numbered paragraphs, asserting two basic independent grounds for granting the instructed verdict. In granting the instructed verdict the trial court did not recite the specific grounds for its decision but merely stated that it was of the opinion that the motion was well taken and should be granted. The Supreme Court at page 62 stated:

“To reverse the judgment of the trial court under these circumstances, it was necessary for petitioner to assume the appellate burden of establishing that the peremptory instruction cannot be supported on either of the grounds set out in the motion. If he has waived the right to question either of such grounds or if either is sound, the judgment of the trial court must be affirmed.”

See also Dunham and Ross Co. v. Stevens, 538 S.W.2d 212, 214 (Tex.Civ.App.—Waco 1976, no writ). Consequently, it was appellants’ burden herein to address the contentions in the appellees’ motions for instructed verdict and show why they cannot serve as a basis for the granting of such motions.

One of Trice’s reasons for instructed verdict was that he was not personally liable to the appellants because all of the acts herein were conducted as Coastal Tubular Sales rather than as Jack Trice individually. Again, appellants have not challenged this reason for instructed verdict and they thereby waive any cause of action against Trice.

The Bank stated in its motion for instructed verdict at léase five reasons why the appellants’ cause of action for violations of 47 U.S.C.A. §§ 206, 605, supra, was without merit. In particular the Bank alleged that the trial court was without jurisdiction to hear a cause of action under Title 47 and that appellants had failed to prove certain evidentiary elements of this particular cause. Appellants have failed to challenge these reasons for instructed verdict on appeal and therefore have failed to meet their appellate burden. Therefore this theory of recovery against Bank & Trust is waived.

Appellants’ cause of action for tortious interference with a contract requires proof that there was a contract subject to interference. Armendariz v. Mora, 553 S.W.2d 400, 404 (Tex.Civ.App.—El Paso 1977, writ ref’d n. r. e.). Appellants at tempted to introduce into evidence a purported contract (Contract No. TKC-822/75) which formed the basis of their law suit; however, they did not properly show the authenticity of the contract under Article 3737e, supra. Thus, no contract was ever entered into evidence. Consequently, the appellants failed to prove a necessary part of their cause of action for interference with a contract. The trial court properly instructed a verdict as to this cause of action in favor of all the appellees.

As to the cause of action for conspiracy to interfere with a contract, we also find a lack of evidence of certain elements. In Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 857 (Tex.Sup.1968), the Court stated that in order to prove a conspiracy:

“There must be an agreement or understanding between the conspirators to inflict a wrong against, or injury, on, another, a meeting of minds on the object or course of action, and some mutual mental action coupled with an intent to commit the act which results in injury; in short, there must be a preconceived plan and unity of design and purpose, for the common design is of the essence of the conspiracy.”

In order to show a conspiracy to interfere with a contract it was incumbent upon the appellants to show that there was a contract with which the conspirators intended to interfere. Again, there was no evidence of such a contract in this case.

The first overt act which could have indicated a conspiracy was Guynn’s testimony that on August 27, 1975, Mr. Vickers (president of Coastal) called him from Houston and offered to give him a six cents per foot commission rather than 50 percent of any profits made. The second overt act which could have shown a conspiracy was a telex sent on August 28, 1975, at some time after 6:00 p. m. But the evidence is undisputed that any contractual rights that Guynn had under his purported contract had already expired by this time in that he was required to send a letter of credit to Tokyo on or before August 29, 1975, Tokyo time. Tokyo time is fourteen hours ahead of time in Corpus Christi or Houston. Therefore, at 6:00 p. m. August 28, 1975, it was already August 29, 1975, in Tokyo and any rights under the purported contract had already expired. After reading the entire record we are unable to find that the overt acts mentioned above or any other evidence proved the elements of conspiracy to interfere with a contract.

Appellants’ petition also sets out a cause of action for conspiracy to defraud. A review of the elements comprising a conspiracy to defraud must be undertaken before this Court can determine its applicability to the case at bar.

The Supreme Court in Schlum-berger adopted this definition of a conspiracy to defraud from the Tennessee Supreme Court:

“A ‘conspiracy to defraud’ on the part of two or more persons means a common purpose, supported by a concerted action to defraud, that each has the intent to do it, and that it is common to each of them, and that each has the understanding that the other has that purpose.” (Emphasis by Texas Supreme Court, 435 S.W.2d 854, 857, col. 1.)

In determining whether a conspiracy to defraud has occurred in a particular case, “[t]he evidence must do more than raise a suspicion. It must lead to belief.” Waco Drug Co. v. Hensley, 34 S.W.2d 832 (Tex.Commn.App.1931, opinion adopted). The acts of a conspiracy must be established by full, clear, satisfactory, and convincing testimony. Switzer v. Joseph, 442 S.W.2d 845, 850 (Tex.Civ.App.—Austin 1969, no. writ); Gager v. Reeves, 235 S.W.2d 688 (Tex.Civ.App.—Fort Worth 1950, writ ref’d n. r. e.).

Applying this definition of conspiracy to defraud to the case at bar, this Court finds no more than a scintilla of evidence under the standard set out in Joske v. Irvine, supra. The evidence would have to clearly establish the singular intent to defraud by each party, the common knowledge by all parties that each had such intent, and finally some concerted act to accomplish such fraud.

The fourth and final cause of action set forth by the appellants in their pleading is that of a breach of the fiduciary duty existing as a result of the alleged joint venture between Guynn and Coastal. Coastal in its motion for instructed verdict gave as one of its grounds the absence of any evidence of a joint venture between Guynn and Coastal. Once again a review of the essential elements required to prove a joint venture is necessary before we can determine if one existed between Guynn and Coastal. As to the cause of action alleged by appellants for breach of a fiduciary duty, there must be a joint venture from which the fiduciary duty arises.

There are four elements that must be present in order to have a joint venture: 1) community of interest; 2) agreement to share profits; 3) agreement to share losses; 4) mutual right to control or management of the enterprise. Coastal Plains Development Corp. v. Micrea, Inc., 572 S.W.2d 285 (Tex.Sup.1978); PanamaWilliams, Inc. v. Lipsey, 576 S.W.2d 426 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n. r. e.); Chandler v. Herndon, 450 S.W.2d 703 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.). The key factor in determining the existence of a joint venture is the intent of the parties. Panama-Williams, Inc. v. Lipsey, supra at 431; North Texas Lumber Co. v. Kaspar, 415 S.W.2d 470 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.).

The appellants had the burden to prove the existence of the joint venture between Guynn and Coastal in the case before us. Rogers v. Butler, 563 S.W.2d 840 (Tex.Civ.App.—Texarkana 1978, writ ref’d n. r. e.); Holman v. Dow, 467 S.W.2d 547 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.).

It appears from the statement of facts that the appellant failed to prove the existence of one of the elements required for the joint venture, that of community of interest. We have previously demonstrated in this opinion that the existence of a contract between Guynn and Coastal was not established at the trial. If no contract exists between the parties, there can be no community of interest in this particular case.

Appellants did not meet their burden of establishing the existence of a joint venture between appellants and Coastal, nor is there any evidence that a fiduciary relationship between Guynn and Trice was established. Therefore, it was not error to grant the instructed verdict. Appellants’ point 4 is overruled.

There is some question raised by appellants’ point 5 concerning whether this court may consider certain exhibits which were not made a part of the original record. At the trial these exhibits were offered, but over objection they were not admitted. Some of the excluded documents were put into the record by bill of exception and others were not; consequently, when the court reporter put the original record together these documents were excluded. Appellant then filed a Rule 377(d), T.R.C.P., motion to have the excluded exhibits included in the record on appeal. The trial court held a hearing on this motion and decided to leave the excluded exhibits out of the record. Appellant then sought a writ of mandamus in this Court to require the trial judge to order that the excluded documents be made a part of the record of this case. The mandamus action was rendered moot when the trial judge later ordered the court reporter to assemble the documents into a separate volume and send them to this Court with the following language on the cover:

“Certificate of the Trial Judge After a Rule 377(d) Hearing
This volume is not certified by me as constituting any part of the Statement of Facts in the above entitled and numbered cause.”

Though the separate volume is headed in this manner, we think that the admissibility of every document which is shown by the statement of facts to have been offered and excluded may be considered by this Court. We recognize that a bill of exception must, in the case of excluded testimony, be developed if one intends to rely upon the exclusion as a basis for reversible error. Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155 (1945). The formality of a bill of exception is not necessary, however, when the excluded testimony is a document, and the document was offered, considered by the parties, and rejected by the court. Compare Pelton v. Cooke, 209 S.W.2d 398 (Tex.Civ.App.—Fort Worth 1948, writ ref’d n. r. e.). Rule 372(7) T.R.C.P., states that anything occurring in open court or in chambers that is reported and so certified by the court reporter may be included in the statement of facts rather than in a bill of exception. We think the scope of this rule is broad enough to provide for the incorporation of excluded documents which were not “formally” offered after exclusion for a bill of exception. At any rate, we have before us now the matter subject to complaint. And we have considered the subject documents as part of the record in disposing of appellants’ point 4. So appellants’ point 5 is moot.

The judgment of the trial court is affirmed.

      . “Point of Error Number One
      The trial court was in error in refusing to grant plaintiffs motion for mistrial based upon the provisions of the Texas Rules of Civil Procedure, Rule 182, relating to the admission of evidence from adverse witnesses of the adverse corporate defendants and in refusing to allow evidence pursuant to Title 47, United States Code, section 605 and section 206, relating to the violation of such United States Code for the improper delivering of radio communications or the use of contents of same by defendants contrary to the receivers’ rights.
      Point of Error Number Two
      The trial court erred in failing to follow the law relating to an action for conspiracy in the admission of evidence against the co-conspirators who are all adverse parties or adverse witnesses to the appellants.
      Point of Error Number Three
      The trial court was in error in failing to follow the law with regard to the admissibility of evidence against adverse witnesses of the adverse corporate parties with regard to the tortious interference by said parties to plaintiffs’ contractual relationship.”

      - , “Point of Error Number Four
      The trial court was in error granting an instructed verdict for the appellees at the close of Plaintiffs’ evidence in that fact issues were raised for the jury’s determination.”


source: Caselaw Access Project

author: RALEIGH BROWN, Justice.

license: Public Domain

text:
    MERCANTILE NATIONAL BANK AT DALLAS, Appellant, v. ACOUSTICS, INC., Appellee.
    No. 5324.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 4, 1979.
    Rehearing Denied Nov. 15, 1979.
    Frank L. Jennings, Jennings, Montgomery, Dies & Turner, Graham, for appellant.
    John 0. Jones, Dallas, for appellee.
   RALEIGH BROWN, Justice.

Mercantile National Bank at Dallas, successor trustee of the Butler Trust, successor trust of the Al Rose LeSage Trust, sought collection of an indebtedness evidenced by three promissory notes, all dated in 1965, totaling $525,000 executed by J. A. Enterprises, Inc., payable to the Al Rose LeSage Trust. When the indebtedness originated, J. A. Enterprises, Inc., was a Texas Corporation and all its shares were owned by Janis Ann Logan. After suit was filed, J. A. Enterprises merged with Acoustics, Inc., with Janis Ann Logan owning approximately 97% of its shares and the remaining shares being owned by David Logan, her former husband. Defendant’s motion for summary judgment that the debt was barred by limitation was granted. Plaintiff’s motion for summary judgment, contending that there was sufficient written acknowledgment of the debt within the applicable limitation period prior to the filing of the suit and that the amount due was liquidated and undisputed, was overruled. Mercantile National Bank appeals. We reverse and render.

Appellant urges that the trial court erred in granting appellee’s motion for summary judgment because its cause of action is not barred by limitation, being based upon a sufficient written acknowledgment as provided in Tex.Rev.Civ.Stat. Ann. art. 5539 (1958). We agree.

The summary judgment proof establishes that J. A. Enterprises, Inc., executed three promissory notes due two years after date and payable to the Al Rose LeSage Trust. The notes were executed on the following dates and in the following amounts: April 26, 1965, for $150,000; June 18, 1965, for $150,000; and July 20, 1965, for $225,000. Three payments were made on the notes, evidenced by checks issued by the corporation payable to the trust on May 7, 1971, in the amount of $80,000; on August 24, 1971 in the amount of $97,700; and December 12, 1972, in the amount of $97,625.

This cause was filed December 5, 1974 without any attached exhibits describing the indebtedness as follows:

The defendant is indebted to the plaintiff as a result of funds loaned and advanced by the plaintiff to the defendant and not fully repaid. The balance of such indebtedness as of December 12,1972, when the defendant made the last payment thereon, was Three Hundred Eighty-Three Thousand Two Hundred Twenty-Nine Dollars Ten Cents ($383,229.10). The defendant agreed to pay interest on such indebtedness at the rate of 5.5% per an-num. The unpaid balance of such indebtedness as of December 12, 1974, will be Four Hundred Eleven Thousand Eight Hundred Seventy-One Dollars Eighty-One Cents ($411,871.81), consisting of principal in the amount of $249,675.00 and accrued interest in the amount of $162,196.81.

On October 27, 1977, plaintiff’s first amended original petition was filed detailing the original indebtedness, evidenced by the three promissory notes executed in 1965, and the written acknowledgment thereof which appellant contends occurred in 1971 and 1972. The promissory notes and the documents and papers constituting the written acknowledgment were attached as exhibits to the amended petition.

Tex.Rev.Civ.Stat.Ann. art. 5539 (1958) provides:

When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby. (Act Feb. 5,1841; G.L. vol. 2, p. 630).

If the acknowledgment of the debt subsequent to the running of limitations satisfies the requirement of Article 5539, appellee has failed in its summary judgment proof. Oram v. General American Oil Company of Texas, 513 S.W.2d 533 (Tex.1974).

The court in Elsby v. Luna, 15 S.W.2d 604 (Tex.Comm’n.App.1929, judgment adopted), discussing the matter of sufficiency of a written acknowledgment, said:

We understand the rule to be that, “This new promise need not be expressed in the writing, but may be implied from what is written.” “An unqualified and unequivocal acknowledgment in writing on the part of the debtor, of the existence of the indebtedness, unaccompanied by expressions indicating an unwillingness to pay same, will raise the implication of a new promise to pay the indebtedness.”

The proof established that W. G. Tudor, a certified public accountant, was an officer and director of J. A. Enterprises, Inc., from its inception until its merger with Acoustics, Inc. During this time, Tudor performed accounting services for the corporation, including the preparation of income tax returns and financial statements.

David Logan, the former husband of Janis Ann Logan at all material times to the events of the instant case, was an officer and director of J. A. Enterprises, Inc., and was active in the management of the corporation.

By letter of January 6, 1971, Tudor outlined to David Logan a procedure to follow in the sale of certain Albuquerque, New Mexico property and with the payment of the proceeds derived therefrom to the trust on the indebtedness with maximum income tax advantage to the corporation. He had made the statement in that letter that “J. A. Enterprises owes the trust money” and he made reference to “offsetting liabilities.” A copy of this letter was furnished to R. S. LeSage, Trustee of the Butler Trust.

Acting on Tudor’s recommendation, Logan, on behalf of the corporation, wrote LeSage on April 15, 1971, explaining in detail the procedure to be followed as to the sale of the Albuquerque property to appellant.

On April 22, 1971, LeSage wrote to J. A. Enterprises, to the attention of Logan, enclosing a deposit receipt evidencing the initial payment on the property and a note for the balance due. The letter directed Logan to forward a check to the Butler Trust in the amount of $80,000. A check in that amount was issued on May 7, 1971. This payment was credited against the indebtedness which is the subject of this suit as is evidenced by appellee’s balance sheets. On April 1971, the first item under “Current Liabilities” on appellee’s balance sheet is “Note Payable — Butler Trusts” in the amount of $525,000. The July 1971 balance sheet reflects that amount was reduced to $445,000, a reduction of $80,000.

On August 2,1971, the second installment on the property was payable. J. A. Enterprises issued a check to the trust in the amount of $97,700 bearing the notation “Payment on account” on August 24, 1971. The corporation’s balance sheet again reflects that the payment was credited against the indebtedness in question, reducing the amount due to $347,300, a reduction of $97,700.

At the end of November, 1972, the corporation’s balance sheet showed an indebtedness to the trust in the amount of $347,300. In December 1972, a third payment was made on the property. Appellee issued a check on December 12, 1972, payable to appellant in the amount of $97,625. Appel-lee’s balance sheet at the end of December showed a balance of the indebtedness to appellant to be $249,675, a reduction in the exact amount of the payment made that month.

The court in Stein v. Hamman, 118 Tex. 16, 6 S.W.2d 352 (Tex.Comm’n.App.1928, opinion adopted) said:

The existence of the indebtedness being thus recognized, in the absence of anything to the contrary in the writing, the law implies a promise to pay the same precisely as a written mortgage to secure a debt carries with it such implication. In truth, it can make no difference where the writing occurs, if it meets the requirements of the statute and is sufficiently specific as to the debt renewed. Such writing may be given for the express purpose, or it may be contained in a letter, deed, or other instrument whatsoever.

In discussing what would constitute an acknowledgment under Tex.Rev.Civ.Stat. Ann. art. 5539 (1958), the court in Trautmann Brothers Investment Corp. v. Del Mar Conservation District, 440 S.W.2d 314 (Tex.Civ.App. — Waco 1969, writ ref’d n. r. e.) said:

[T]hat the “two ingredients necessary to make an acknowledgment within the statute” are the acknowledgment of the antecedent debt and an expression of willingness to pay it.
The Supreme Court has since settled also the rules that (1) “An unqualified acknowledgment of an existing debt implies a promise to pay it.” Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130, 131; Howard & Hume v. Windom, 86 Tex. 560, 26 S.W. 483, 485. (2) From such a clear written acknowledgment that the debt is subsisting (absent evidence of intent to repudiate it) will be implied the promise to pay, notwithstanding there is no express promise. Windom v. Howard, 86 Tex. 560, 26 S.W. 483, 486; York v. Hughes, Tex.Com.App., 286 S.W. 165, 167; McLendon Hardware Co. v. Jewett Lumber & Hardware Co., Tex.Civ.App., 157 S.W.2d 452, 453, writ ref. See Hanley v. Oil Capital Broadcasting Ass’n, 141 Tex. 243, 171 S.W.2d 864, 865.

The summary judgment proof establishes a clear written acknowledgment by appellee that the debt is subsisting. There is no proof of any intent to repudiate it, therefore, a promise to pay the debt is implied. This suit having been filed within four years after the written acknowledgment, the trial court erred in granting Acoustics, Inc.’s motion for summary judgment based on their only asserted defense of limitation.

Mercantile National Bank contends that the trial court erred in overruling its motion for summary judgment and failing to enter judgment for it against Acoustics, Inc. for the unpaid principal balance of the indebtedness together with interest thereon and attorney’s fees.

The court in Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958), considering the matter where both parties filed motions for summary judgment and the trial court granted one and overruled the other, said:

[W]hen, as in this case, both parties file motions for summary judgment and one such motion is granted, then the trial court’s judgment becomes final and ap-pealable, and on appeal the Court of Civil Appeals should determine all questions presented. If reversible error is found, the court should render such judgment as the trial court should have rendered, Rule 434, .. .

Mercantile Bank’s pleading was sufficient to constitute an action on the new promise, and its summary judgment proof authorized recovery, therefore, the court erred in denying its motion for summary judgment. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965).

The judgment of the trial court is reversed and rendered that Acoustics, Inc. take nothing and that Mercantile National Bank at Dallas, Trustee, have judgment against Acoustics, Inc. for the sum of $249,-675 together with unpaid interest in the sum of $232,662.58, plus attorney’s fees in the sum of $48,233.76, and interest at the rate of 9% per annum from October 2,1978. Tex.Rev.Civ.Stat.Ann. art. 5069-1.05 (Supp. 1978).


author: CARVER, Justice.

text:
    Bobby Jack GRUNDY, Appellant, v. Ralph Anna GRUNDY, Appellee.
    No. 19977.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 5, 1979.

      Burt Barr, Dallas, for appellant.
    Reba Graham Rasor, Donald R. Smith, Richard Johnson, Koons, Smith & Johnson, Dallas, for appellee.
    Before GUITTARD, C. J., and CARVER and STOREY, JJ.
   CARVER, Justice.

This is an appeal from an order of the trial court modifying support provisions of a prior divorce decree both prospectively as well as retroactively to the date the motion to modify was filed. Appellant challenges only the portion of the trial court’s modification order that operates retroactively. We modify the order to eliminate the retroactive portions of the judgment, as unsupported by the evidence, and affirm.

In October 1978, Ralph Anna Grundy, appellee, filed a motion to modify a 1970 divorce decree which obligated the appellant to pay $100 a month for each of her two children. The appellee requested an increase prospectively in child support due to changed circumstances. No amount was specified in the petition, nor were the nature of or the dates of any particular change set out in the pleadings. In February 1979, the court on hearing ordered that the appellant should henceforth pay $200 a month per child. The court also ordered that the increase in child support should be retroactively enforced from the date the motion to modify was filed.

It is clear from the evidence that appellee demonstrated a need on the date of hearing for increased support, and that appellant was afforded both notice of appel-lee’s claims and a fair opportunity to defend. However, we can discern nothing from the record that would support the court’s order that the increased support payments be made retroactive to the date of filing of the motion to modify. The petition merely alleges a material and substantial change of circumstances since the date of the original support order, and that support payments should be increased. The petition does not ask that the increase be applied retroactively. Consequently, the pleadings contain no notice that the appellant might be held liable for retroactive payment. Moreover, although appellee testified that her overall expenses had increased from the time of the 1970 support order, there is no proof in her testimony or exhibits that the children’s greater need existed as of October 1978 or on any date prior to the hearing.

In an effort to uphold the retroactive aspects of the modification decree, ap-pellee relies on the case of Casterline v. Burden, 560 S.W.2d 499 (Tex.Civ.App.—Dallas 1977, no writ). In Casterline, this court affirmed a reduction of child support payments that was made retroactive to the date of the change of circumstances, i. e., the date that the petitioner had changed jobs, which was four months after the motion to modify had been filed. The court noted that the Family Code authorizes modification of child support decrees, “except that an order providing for the support of a child may be modified only as to obligations accruing subsequent to motion to modify.” Tex.Fam.Code Ann. § 14.08(c)(2) (Vernon Supp.1978-1979). Thus, under this section, retroactive modification of support obligations which have accrued since the filing of the motion to modify is expressly authorized. Casterline v. Burden, 560 S.W.2d at 501-02.

We in no way dispute the holding of Casterline. However, we find that it is inapplicable to the instant case. In Caster-line, there is evidence tending to show the date on which the movant had changed jobs, the salary the movant had received before and after that date, and consequently, the date on which the circumstances had, in fact, changed. In our case no comparable evidence has been presented. Appel-lee’s testimony dealt only with general increases in expenses since the time of the divorce and her income and expenses at the time of trial. Appellee argues that inherent in the motion for an increase in support payments is the implication that the increase is necessary at the time it is requested. She urges this court to refrain from engrafting technical requirements in an area in which the court’s paramount concern should be the interests of the children. We agree that in a proper case a motion to modify might constitute sufficient pleadings to support the introduction of evidence concerning the inception of a child’s needs and whether it occurred at or subsequent to the filing of the motion. The motion standing alone, however, is no substitute for proof that a retroactive modification is justified. We hold that the better practice is to give fair notice and opportunity to defend if retroactive modification is sought. We further hold that the evidence must directly support a retroactive modification. We do not find evidence in this record to support any modification of support prior to the hearing date. Therefore, we modify the trial court’s order by striking from it any retroactive modification of the support order and affirm the judgment as modified.


author: ROBERTSON, Justice.

text:
    Frank BUTLER, Appellant, v. Ricky J. BENEFIELD and Terri D. Benefield, Appellees.
    No. 20081.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 9, 1979.
    Rehearing Denied Nov. 7, 1979.

      W. Lawrence Evans, Kennedy, Minshew, Evans, Campbell & Cain, Sherman, for appellant.
    W. Wayne Shirley, Weisberg, Shirley, Bamburg & Weisberg, Denison, for appel-lees.
    Before GUITTARD, C. J., and ROBERTSON and CARVER, JJ.
   ROBERTSON, Justice.

Plaintiffs Ricky J. Benefield and Terri D. Benefield, husband and wife, sought to recover damages and attorney’s fees for defendant’s failure to comply with the terms of a contract for the sale of real estate. Defendant Frank Butler appeals from the adverse judgment of the trial court that was based as to liability on a partial summary judgment, and as to damages and attorney’s fees on jury findings. We reverse and remand for trial on the issue of liability, but we do not disturb the findings on damages and attorney’s fees.

On February 27, 1978, plaintiffs and defendant completed a contract for the sale of “415 Holley, Sherman, Texas” for $19,500. Thereafter Grayson County Abstract Company added a legal description of the property to the contract. On March 1, 1978, an agent of the plaintiffs contacted defendant to arrange for plaintiffs to take possession of the property by March 10,1978, although the contract provided for possession to be taken thirty days after closing. Defendant considered this a breach by the plaintiffs and, consequently, returned plaintiffs’ earnest money, notifying them that he would not go through with the sale. Subsequent to plaintiffs’ filing of this suit, defendant discovered that he did not own full title to the property in question; rather, his son owned one-half undivided interest that he had inherited upon the death of defendant’s wife in 1977. Both parties filed motions for summary judgment and supporting affidavits. Defendant’s motion was denied, and plaintiffs’ motion was granted on the question of liability. Trial was had before a jury on the issues of damages and attorney’s fees, resulting in judgment for plaintiffs.

Defendant’s first two points of error contest the legal sufficiency of the description “415 Holley, Sherman, Texas.” In Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945) the court stated that a property description must furnish the means or data by which the land in question can be identified with “reasonable certainty” in order to satisfy the statute of frauds. Id. at 56-57, 188 S.W.2d at 152. The purpose of a description is to “afford a means of identification,” not necessarily to identify. Krueger v. W. K. Ewing Co., 139 S.W.2d 836, 839 (Tex.Civ.App.—El Paso 1940, no writ). Thus, a street address or a commonly-known name for property may be sufficient if there is no confusion. See A. A. A. Realty Co. v. Neece, 292 S.W.2d 811, 815 (Tex.Civ.App.—Fort Worth 1956) (“Catalina Motel, 1409 East Scott Street, Wichita Falls, Texas,” sufficient when vendor owned only one Catalina Motel in Wichita Falls), aff’d, 156 Tex. 614, 299 S.W.2d 270 (1957); Krueger v. W. K. Ewing Co., 139 S.W.2d at 839 (“San Gabriel Apartments” sufficient when building so known for twelve years and date line of offer to purchase listed San Antonio, Texas); Sorsby v. Thom, 122 S.W.2d 275, 277 (Tex.Civ.App.—Galveston 1938, writ dism’d) (“Rock Island Plantation” sufficient when property so known for twenty-five years and all transactions occurred in Hempstead, Texas). Each of the descriptions set out above furnished sufficient means of identifying the property, when considered with the aid of tendered extrinsic proof. In Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222 (1949) the supreme court stated that even a description using the words “my land,” “my property,” or “owned by me” to indicate a particular tract within a more general area is sufficient if supported by extrinsic evidence that that party owned only one tract fitting the description in the contract. Id. at 210, 223 S.W.2d at 223. When, however, from the description given, it is reasonably possible to locate more than one tract of land fitting that description, the statute of frauds is not satisfied. See Tex.Bus. & Comm.Code Ann. § 26.01 (Vernon 1968 & Supp. 1978-1979). For example, insufficient descriptions have been found when an uncertain area is excepted from a more definitely described plot, Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945), when a specific number of acres, without further description, is conveyed out of a larger, definitely described tract, e. g., Burrows v. Seale, 148 Tex. 411, 225 S.W.2d 966 (1950); Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222 (1949); Mauro v. Wildwood Co., 426 S.W.2d 322 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.), and when a street address is listed and the vendor owned another nearby property, Friedlander v. Christianson, 320 S.W.2d 404 (Tex.Civ.App.—Houston 1959, no writ). In light of this discussion, we find that it is not possible to determine as a matter of law whether “415 Holley, Sherman, Texas” is a sufficient description. The trial court should have heard extrinsic evidence on this point. Accordingly, the summary judgment on liability must be reversed and the case remanded for trial on this issue.

Although defendant’s third and fourth points of error also relate to the summary judgment, we address them because they concern questions of law. These points challenge the certainty of the contract of sale in that it allegedly does not set out an agreement as to the terms of payment of the consideration. Whether an ambiguity exists in a contract is a question of law. Skyline Furniture, Inc. v. Gifford, 433 S.W.2d 950, 954 (Tex.Civ.App.—El Paso 1968, no writ). All terms of payment of a contract need not appear in the memorandum, Morrison v. Dailey, Tex., 6 S.W. 426, 427 (Tex.1887); however, in the contract now before us, all terms appear to be present.

The pertinent provisions of the contract are as follows:

The purchase price is $19,500.00, payable as follows: $ Cash (of which Purchaser has deposited with the undersigned Agent $200.00 as part payment, receipt of which is hereby acknowledged by said Agent);
Purchaser will Obtain a Loan At Sherman Savings.
The said executed note to be secured by Vendor’s Lien and Deed of Trust with power of sale and with the usual covenants as to taxes, insurance and default, [emphasis indicates typewritten material]

It is clear from the four corners of this document that the balance after deducting the $200.00 deposit was to be paid in cash from proceeds of the loan at Sherman Savings. The trial court was correct in finding as a matter of law that no ambiguity existed.

Defendant’s fifth and sixth points of error relate to evidentiary points in the summary judgment. Since new evidence will be taken at the trial of the liability issue, we do not address these points.

Defendant’s seventh and eighth points of error challenge the measure of damages applied by the trial court. Defendant argues that since he did not have a full fee title at any time relevant to this action, plaintiffs should only recover their purchase money paid, plus interest. If defendant had refused to perform the contract because he learned of his inability to convey a full fee title we would have a different question. Here, however, there is no dispute that defendant refused to perform because of his conversation with the plaintiffs’ agent on March 1,1978. Defendant thereafter willfully refused to convey the property in question to plaintiffs.

In Nelson v. Jenkins, 214 S.W.2d 140 (Tex.Civ.App.—El Paso 1948, writ ref’d) the vendor refused to perform an executory contract for sale of homestead land because the contract did not have a provision he desired and because he lacked the ability to convey full title, in that his wife refused to sign the contract. The court of appeals stated that the lack of the desired contract provision appeared to be the controlling reason for the vendor’s failure to convey. Thus, the lack of an honest effort by the vendor to perform the contract and his willful intention to breach it amounted to a lack of good faith. As a result the court found that the vendee was entitled to the benefit of his bargain. Id. at 144; see Roberts & Corley v. McFaddin, Weiss & Kyle, 74 S.W. 105, 110 (Tex.Civ.App.—1903, no writ). The benefit of one’s bar gain is measured by the difference between the market value of the land at the time of the breach and the contract price. Roselawn Cemetery, Inc. v. Martin, 415 S.W.2d 442, 445 (Tex.Civ.App.—San Antonio 1967, no writ); Elliott v. Henck, 223 S.W.2d 292, 295 (Tex.Civ.App.—Galveston 1949, writ ref’d n. r. e.). We conclude that Nelson controls under the fact situation of the present case and, therefore, the trial court did not err in the measure of damages applied.

Since the state of defendant’s title is immaterial to the measure of damages in this case, the trial court properly excluded defendant’s testimony as to this matter. Defendant’s ninth point of error complaining of this exclusion is therefore overruled.

Defendant next claims the trial court improperly admitted testimony as to attorney’s fees based on matters to which defendant was prohibited from referring by virtue of plaintiffs’ motion in limine. This court is unable to determine, from defendant’s brief and the record before us, what the prohibited subject matter was to which defendant refers. No abuse of discretion by the trial judge has been shown. Additionally, adequate testimony exists in the record to support the jury’s findings.

On the basis of the errors raised in his prior points, defendant, in his eleventh point of error, argues that attorney’s fees were improperly awarded since no valid claim existed as required by the Texas statute providing for recovery of attorney’s fees. Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon Supp. 1978-1979). This argument is without merit. Liability based on some type of valid claim must be found before any award of damages or attorney’s fees can be granted. The emphasis of article 2226 is on the type of suit for which recovery of attorney’s fees may be had, rather than' the validity of the claim. See id.

Accordingly, the judgment will not be disturbed on the issue of damages and attorney’s fees, but it will be reversed on the issue of liability and remanded for trial as to that issue. The trial court is instructed to try that issue and, if it determines that defendant is liable, to render judgment for plaintiff. for the damages and attorney’s fees heretofore found, together with any additional attorney’s fees that may be established. If the court determines that defendant is not liable, it is instructed to render judgment that plaintiff take nothing.

Affirmed in part; reversed and remanded for trial in part.


author: Carver, Justice.

text:
    UTL CORPORATION, Appellant, v. Charles MARCUS, Trustee, Appellee.
    No. 19903.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 9, 1979.
    Rehearing Denied Nov. 9, 1979.

      Royal H. Brin, Jr., Strasburger & Price, Dallas, for appellant.
    A. Joe Fish, McKenzie & Baer, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   Carver, Justice.

UTL Corporation appeals from a judgment rendered in favor of Charles Marcus, Trustee, for breach of a real estate contract. The trial court awarded damages to Marcus. We reverse and render on the ground that the evidence failed to show the existence of a real estate contract meeting our statute of frauds.

In November, 1975, UTL signed a letter prepared by the Henry S. Miller Company, listing the UTL Corporation building in Dallas for sale, lease-back by UTL, and a re-purchase option to UTL. The two and a quarter page letter concluded with the following language:

UTL further acknowledges that the Henry S. Miller Company shall act in the capacity of a real estate broker and in the event that a purchaser is not obtained and the transaction is not closed by December 30, 1975, then neither UTL nor the Henry S. Miller Company will have any responsibility or liability one to the other.
This Contract of Sale covering this transaction will be subject to the approval of the holder of the first mortgage.

Miller advertised this listing and attracted Marcus as a prospective buyer. Miller’s attorney then prepared a formal contract which Marcus signed as “Purchaser”, Miller signed as “Principal Agent”, and Marcus also signed as “Co-Operating Agent”. This instrument was not signed by Marcus until January 8, 1976. UTL did not sign the January 8 instrument but instead submitted the instrument to its attorneys who objected to many parts of the instrument and produced a new draft dated February 2. No party signed the February 2 instrument although UTL’s president wrote a letter to Miller stating that UTL would execute the February 2 instrument if certain modifications were made. The proposed modifications were unacceptable to Marcus who then filed this suit for damages.

The main issue presented to this court is the existence of a contract between the parties which satisfies the statute of frauds. Tex.Bus. & Comm.Code Ann. § 26.01 (Vernon 1968) provides in pertinent part:

(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
(b) Subsection (a) of this section applies to .
(4) a contract for the sale of real estate;

The continuity in our law of this principle, as well as the essence thereof, has been expressed by our Supreme Court in Rankin v. Naftalis, 557 S.W.2d 940, 943 (Tex.1977). As the court said: “The Texas Legislature on successive occasions from the early days of the Republic has expressed its intent that contracts concerning land must not, as Lord Coke expressed it, ‘be left to slippery memory’ but must be reduced to writing.” Marcus sought to show a written contract by (1) treating the listing letter between UTL and Miller as constituting Miller a general agent with power of sale so that Miller’s signature on the January 8 instrument became UTL’s signature; (2) treating the listing letter between UTL and Miller as an offer which was accepted by Marcus in writing through his January 8 instrument; (3) Marcus was the third party beneficiary of the listing contract between UTL and Miller; and (4) the February 2 instrument was agreed to in writing by UTL through its president’s letter. Marcus further urges that the conduct of UTL estops it from claiming the benefits of the statute of frauds. The trial court sustained Marcus’ position on each of these points.

We reject Marcus’ claim and the finding of the trial court that Miller was constituted UTL’s general agent with power of sale by the listing letter. No word or words of general agency appear in the listing letter. Rather, words creating a special agency, “real estate broker”, do appear in the agreement. The broker is a special agent limited to showing the property and finding a purchaser. As a general rule, a broker does not have the authority to consummate a contract on behalf of his principal. Loma Vista Development Co. v. Johnson, 142 Tex. 686, 180 S.W.2d 922 (1944); Goode v. Westside Developers, Inc., 258 S.W.2d 844 (Tex.Civ.App.—Waco 1953, writ ref’d n. r. e.). Further, Miller did not purport to sign Marcus’ January 8 instrument in any capacity other than as broker. The January 8 instrument does not purport to be signed by Seller, shown to be UTL Corporation, acting through Miller or any other person. We hold that Miller was not a general agent with power to contract for UTL and that it never attempted to act as such an agent.

We also reject Marcus’ claim that the listing agreement constituted a written offer and that the January 8 instrument constituted his written acceptance. The listing letter, if found to be an offer, would have to be accepted without variations or additions. Garcia v. Vilarreal, 478 S.W.2d 830 (Tex.Civ.App.—Corpus Christi 1971, no writ); Smulcer v. Rogers, 256 S.W.2d 120 (Tex.Civ.App.—Fort Worth 1953, writ ref’d n. r. e.). The listing letter is barely two and a quarter pages long while Marcus’ January 8 instrument is thirty-eight pages including exhibits. The variations or additions noted are (1) the inclusion of personalty in the sale, (2) the addition of escrow deposits, (3) the total price is allocated between land and buildings, (4) detailing the essential terms of a note and of a lease and (5) the conditions of closing by December 30 plus approval by UTL’s mortgagee are omitted. These variations and additions together with those, implicit in a comparison' of the two instruments make Marcus’ January 8 instrument a counteroffer instead of an acceptance. United Concrete Corp. v. Spin Line Co., 430 S.W.2d 360 (Tex.1968). Our view is confirmed by Marcus who chose to require in the January 8 instrument:

22. Because time is of the essence, it will be necessary for Seller to accept Purchaser's offer herein contained within one (1) week by signing and returning two (2) signed copies of this contract or the offer herein contained is withdrawn, voided and terminated by Purchaser and is of no further force and effect, and the earnest money, if any, shall be immediately returned to Purchaser. [Emphasis added]

We hold that there is no proof that UTL ever accepted this counteroffer in writing as required by our statute of frauds. Hill v. Rich, 522 S.W.2d 597 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.); Mann v. Risinger, 423 S.W.2d 626 (Tex.Civ.App.—Beaumont 1968, writ ref’d n. r. e.).

Additionally, we reject Marcus’ contention that the letter listing agreement between UTL and Miller was a third party beneficiary contract for Marcus’ benefit. Marcus had the burden to show that the parties to the listing letter actually intended him to be the beneficiary at the time it was signed. Taggart v. Crews, 521 S.W.2d 703 (Tex.Civ.App.—San Antonio 1975, no writ). There was no word in the listing agreement that can be said to refer to Marcus and no evidence was offered by Marcus that would support a finding that he was the intended beneficiary. Any prospective buyer located by Miller under the listing letter might be an incidental beneficiary of the listing but would not qualify as a third party beneficiary entitled to enforce the listing letter. Suthers v. Booker Hospital District, 543 S.W.2d 723 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.). We hold that Marcus has failed to show himself to be the intended third party beneficiary of the listing letter between UTL and Miller. Hence, Marcus may not rely upon the listing as a contract satisfying our statute of frauds.

We also reject Marcus’ contention that the unsigned February 2 instrument, when read with the letter of the UTL president, constituted a contract satisfying our statute of frauds. After the instrument of February 2 was prepared, but unsigned by anyone, the president of UTL wrote Miller on February 25:

This letter is to advise you that UTL Corporation will execute the enclosed sale lease-back agreements covering its property at 4500 West Mockingbird Lane, Dallas, Texas, after the following modifications have been made to said agreements:
1. Repurchase option to be between second (2nd) and fourth (4th) year at a price of $1,220,000.
2. Real estate commissions are to be payable as follows:
(a) $18,000 at closing; and
(b) $10,000 per year for three (3) years.
If you have any questions regarding the above, please contact Mr. John Benson.

Marcus testified he was unwilling to accept the terms of the letter on which he now relies. The modification demanded made the letter a counteroffer, which Marcus rejected. We hold that the unsigned February 2 instrument was not unconditionally accepted in writing by UTL’s letter so as constitutes a contract complying with our statute of frauds.

Marcus also urges that even if we find there was no contract satisfying the statute of frauds, nevertheless, under the theory of “promissory estoppel”, ÍJTL is deprived of reliance upon the statute as a defense because UTL promised to sign the February 2 instrument and Marcus relied upon that promise to his detriment. Marcus’ difficulty in resting on this theory lies in the fact that the “promise” of UTL, is set out in the above quoted letter, and is inseparable from the conditions stated. Marcus testified that the conditions were unacceptable to him which led to his rejection instead of his reliance on the letter. Our supreme court in Wheeler v. White, 398 S.W.2d 93, 96 (Tex.1965), stated:

Where one party has by his words or conduct made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise cannot afterward be allowed to revert to the previous relationship as if no such promise had been made. [Emphasis added.]

According to our record, UTL stood ready to abide by the promise as stated in its letter and Marcus has shown no breach of that promise. We hold that UTL has not breached any promise or assurance given Marcus and is not estopped to urge the statute of frauds as a defense to Marcus’ claim.

Accordingly, the judgment of the trial court is reversed and judgment here rendered that Charles Marcus, Trustee, take nothing from UTL.


author: HUMPHREYS, Justice.

text:
    GULF INSURANCE COMPANY, Appellant, v. J. W. BLAIR, Appellee.
    No. 19972.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 9, 1979.
    Rehearing Denied Nov. 9, 1979.
    Gary W. Maxfield, Elliott, Churchill, Hansen, Dyess & Maxfield, Dallas, for appellant.
    George W. Irwin, Dallas, for appellee.
    Before AKIN, ROBERTSON and HUM-PHREYS, JJ.
   HUMPHREYS, Justice.

Gulf Insurance Company, appellant, surety on the temporary administrator’s bond of J. D. Terry, appeals from a judgment holding Terry liable for losses of $25,000 to the estate of Bobby Joe Hopson, deceased. J. W. Blair, appellee and successor administrator of the estate, sued on behalf of the estate to recover funds of the estate wrongfully expended. The trial court rendered judgment for Blair against Terry for $10,-041.27 and against Terry and appellant for $25,000. Only the surety appeals. Appellant argues the judgment is not supported by sufficient evidence and that the court erred in holding appellant liable for a tax claim against the estate. We find evidence in the record to support a $25,000 judgment against the surety and affirm.

Terry was appointed temporary administrator of Hopson’s estate on January 24, 1975. His order of appointment gave him the power to pay the obligations of Hopson Brothers Plumbing Co., which the deceased owned, and recited that he was to serve as temporary administrator until a permanent administrator was appointed, but in no event beyond March 31, 1975. Terry then executed a temporary administrator’s bond with appellant as surety in the amount of $25,000. Although on March 24, 1975, Terry was appointed permanent administrator, he did not qualify for this position by obtaining another bond. He filed an “Inventory, Appraisement and List of Claims” on June 25, 1975. On June 4, 1976, Terry was removed as permanent administrator, and J. W. Blair was appointed successor administrator and sued Terry and appellant for losses to the estate resulting from Terry’s actions.

The trial court filed numerous findings of fact and conclusions of law which are uncontested. The court found that Terry never filed any sworn lists, returns, exhibits or accounts of his acts as temporary administrator. It also found that Terry and the deceased’s widow, Dorothy Hopson, agreed to operate the deceased’s plumbing business without court authority, and that Terry and Dorothy Hopson opened a bank account to carry on the plumbing business. Another uncontested finding is that Terry did not obtain court authority for the payment of any claim or debt of the estate.

We first address appellant’s points attacking the court’s findings that Terry is liable to the estate for the United States claim of $22,041.27 for unpaid social security and withholding taxes. Appellant’s primary argument is that the surety can be liable only for the temporary administrator’s actions occurring before March 31, 1975, the last date Terry was to act as temporary administrator according to the terms of the order. Because the liability for unpaid social security and withholding taxes occurred subsequent to March 31, 1975, appellant contends the surety cannot be liable for any of these unpaid taxes. We cannot agree.

Terry is liable to the estate for any losses he caused after March 31, 1975, because Terry failed to file a final accounting required by Tex.Prob.Code Ann. § 134 (Vernon 1956), or any report with the judge, and failed to obtain court orders approving the final report and discharging him. See Hill v. MaGee, 76 S.W.2d 579, 580 (Tex.Civ.App.—Waco 1934, writ ref’d). The question then is whether the surety is liable for these acts after March 31, 1975. A surety’s liability is dependent on the terms of the bond. See Shaw v. O'Sullivan, 334 S.W.2d 223, 224 (Tex.Civ.App.—El Paso 1960, writ ref’d n. r. e.); Scruggs v. Rowe, 147 S.W.2d 946 (Tex.Civ.App.—Galveston 1941, writ dism’d judgmt cor.). The words penned in the typewritten order of appointment “but in no event beyond March 31, 1975” conflict with the provisions of Tex. Prob.Code Ann. § 131(c) (Vernon 1956) and are therefore a nullity as a court cannot attach to an order granting administration any conditions save as are provided by law. The bond Terry executed with appellant states that appellant is bound to the Collin County Judge for $25,000, conditioned that Terry “shall well and truly perform all the duties required of him by law under said appointment,” but mentions no time frame. Since the bond here contains no language limiting the period of liability but assures that Terry will perform his duties under the appointment, we hold that the surety is liable for losses to the estate occurring after March 31, 1975. The order of appointment itself states the bond “shall be continued in force for such period of time as the court shall deem of interest to the estate involved . .” Furthermore, Tex.Prob.Code Ann. § 135 (Vernon 1956) recites that upon proof of delivery of an accounting, the appointee shall be discharged and “the sureties on his bond released as to any future liability.” As we read this language, the surety can only be released upon discharge of his principal in the absence of a contrary provision in the bond. Consequently, appellant is liable for these claims.

Appellant’s second argument concerning its liability for the tax claims is that the claim is not a debt of the estate. Appellant does not dispute that Terry continued to operate the deceased’s plumbing business with Dorothy Hopson, and that he did not remit social security and withholding taxes on the salaries paid to employees. Whether this claim- was properly allowed against the estate, the court approved the claim pursuant to Tex.Prob.Code Ann. § 312(d) (Vernon 1956), and the order therefore has the force and effect of a final judgment. See Usher v. Wendell, 430 S.W.2d 684, 687 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.). Since the estate did not appeal from the order, the order is a binding claim which the estate is obligated to pay. Consequently, Terry’s continuation of the business without authority resulted in a $22,041.27 loss to the estate, and appellant is obligated on its bond to reimburse the estate for its loss due to Terry’s actions while acting as administrator.

The trial court also found that Terry had not accounted for $11,500 of accounts receivable which were reflected on the inventory he filed June 24,1975. While the record is unclear as to what the estate consisted of at the time Blair took over as administrator, we find sufficient evidence to support the court’s finding. Terry has not produced these funds and has filed no claims with the court to show this money was expended to pay expenses of the plumbing business in existence at decedent’s death. In the absence of filing such claims or an account, Terry had the burden of producing evidence of the use of this money. Scott v. Taylor, 294 S.W. 227, 230 (Tex.Civ.App.—Amarillo 1927, no writ). He testified that the money was used to pay operating expenses, but the court found, and we agree, that it is impossible to determine what amounts paid by Terry were for debts existing prior to decedent’s death, and what amounts were used to pay the debts due to Terry’s continuation of the business. We therefore affirm this holding of the court.

Appellant argues that Terry can be held accountable for only some $6,000 of accounts receivable because these accounts were community property. We need not determine that question because, even if only $6,000 is involved, sufficient evidence exists in the record to affirm the judgment of liability of the surety in the amount of $25,000. We also overrule appellant’s other points for the same reason.

Affirmed.


author: OSBORN, Justice.

text:
    In the Matter of the Guardianship of Addie Nora FLECKENSTEIN.
    No. 6892.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 10, 1979.
    Rehearing Denied Nov. 14, 1979.

      Gardere, Wynne, Jaffe & DeHay, Donald C. McCleary, Judith K. Sinclair, Dallas, Stubbeman, McRae, Sealy, Laughlin & Browder, Al W. Schorre, Jr., Midland, for appellant.
    Kerr, Fitz-Gerald & Kerr, William Robert Parks, Midland, guardian ad litem.
    Carl Steckelberg, Vern F. Martin, Midland, for Zella Martin, appellee.
   OPINION

OSBORN, Justice.

This case involves the issue of venue in a case instituted by a daughter for the appointment of a guardian of her elderly mother. The trial Court overruled the mother’s plea of privilege. We reverse and order the case transferred to Dallas County, Texas.

Zella Martin filed an application for guardianship in the County Court of Midland County, Texas, seeking to be appointed guardian of her mother, Addie Nora Fleck-enstein, who was born in 1900. Mrs. Fleck-enstein has resided in a nursing home in Dallas County, Texas, for more than two years and it is contended that she is unable to manage her own affairs. A plea of privilege was filed by Mrs. Fleckenstein seeking to have the case transferred to Dallas County, the place of her residence. A controverting affidavit was filed asserting venue in Midland County under the provisions of Section 7 of the Texas Probate Code, with an allegation being made that the principal estate of the proposed ward was in Midland County.

Section 7(b) of the Texas Probate Code provides:

A proceeding for the appointment of a guardian shall be begun:
(b) For the person and estate, or either, of an incompetent, in the county where such person resides, or where his principal estate is situated.

There is no dispute about the place of residence of the proposed ward being in Dallas County. There is a dispute about where her principal estate is situated. Mrs. Fleckenstein receives social security payments which are paid to her in Dallas. She has some personal property, including antiques, in Midland County. She owns no real estate. Her principal asset is a $75,-000.00 promissory note with an unpaid balance of $55,000.00, which is secured by a deed of trust lien on 106 acres of land in Bell County, Texas. The note does not designate a place of payment, but prior payments had been made in Dallas, Texas.

The case resolves itself to the question of where is the one main asset, the debt evidenced by a note, to be considered situated. The promisor on the note is a partnership composed of residents of Midland County. The Appellee asserts that the location of the main asset is at the place of the residence of the debtors, being Midland County where suit was instituted. The Appellant relies primarily upon the decision in Bagwell v. McCombs, 31 S.W.2d 835 (Tex.Civ.App.— Dallas 1930, no writ). The Appellee relies primarily upon the holdings in Saner-Ragley Lumber Co. v. Spivey, 238 S.W. 912 (Tex.Com.App.1922), and Lancaster & Wallace v. Sexton, 245 S.W. 958 (Tex.Civ.App.—Texarkana 1922, writ ref’d). None of these cases deal directly with the situs of a debt secured by a promissory note.

Quite clearly, the promissory note is intangible property in the nature of a “chose in action” which can only be claimed or enforced by an action in court and not by taking physical possession like other types of property. Brown, The Law of Personal Property (3d ed. 1975), sec. 1.7. The general rule, as set forth in 16 Am.Jur.2d, Conflicts of Law, sec. 35, is as follows:

While the idea of locality of things which may be said to be intangible is somewhat confusing, broadly speaking intangible personal property, such as evidences of debt and other choses in action, follows the person, and by fiction of law has its situs at the domicil of the owner. Thus, while debts, being intangible, have no actual situs, they, as a general proposition, follow the person of the creditor and not of the debtor, and are given the situs of the creditor’s domicil, so that where the debtor and creditor reside in different states, the law of the domicil of the creditor prevails. (Footnotes omitted)

On several occasions, the courts of other jurisdictions have held that the situs of intangible personal property is at the domicile of the owner. Elliott v. Mosgrove, 162 Or. 507, 91 P.2d 852 (1939); McDougal v. McDougal, 279 S.W.2d 731 (Mo.App.1955); State of California v. St. Louis Union Trust Co., 260 S.W.2d 821 (Mo.App.1953); United States v. Royce Shoe Company, 137 F.Supp. 786 (D.N.H.1956).

The filing of the plea of privilege established a prima facie right to have the case transferred to Dallas County. Rule 86, Tex.R.Civ.P. The evidence does not establish an exception under Section 7(b) of the Texas Probate Code, and the case should be transferred to Dallas County, Texas.

The judgment of the trial Court is reversed and judgment rendered ordering the case transferred to Dallas County, Texas.


text:
    Ex parte Jerry Joe McMANUS, Relator.
    No. 20198.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 10, 1979.

      Douglas A. Barnes, Herbert L. Hooks, Dallas, for relator.
    Diane L. Snyder, Dallas, for respondent.
    Before AKIN, ROBERTSON and STO-REY, JJ.
   ROBERTSON, Justice.

Relator Jerry Joe McManus brings this original application for a writ of habeas corpus, contending that the contempt order subject to which he is confined, is void. This contention is based on the grounds that enforcement of the order amounts to imprisonment for debt, that he was not identified at trial as respondent’s former husband, that no showing was made that he had failed to make proper support payments, and that the divorce decree upon which the contempt order is based is ambiguous. We hold that the order is not void and therefore deny the application.

Relator and respondent, Sharon McMa-nus, were divorced on August 9, 1977, by a decree which, among other provisions, ordered relator to pay for the support of the parties’ two minor children. A show-cause order was issued on June 18,1979, ordering relator to appear and to show why he should not be found in contempt for violating the decree of divorce. Relator did not testify at the contempt hearing. Subsequently, the district court found relator in contempt and entered a contempt order. Three days later a notice was issued to the sheriff to take relator into custody. Having been taken into custody, relator now challenges the validity of the contempt order through this collateral attack.

Relator first contends that section 18 of article I of the Texas Constitution, prohibiting imprisonment for nonpayment of debts, would be violated by enforcement of that portion of the contempt order requiring payment of attorney’s fees. The general rule in Texas is that attorney’s fees awarded and included in a final judgment may not be collected through the use of contempt proceedings. Wallace v. Briggs, 162 Tex. 485, 489, 348 S.W.2d 523, 525-26 (1961); Ex parte Choate, 582 S.W.2d 625, 628 (Tex.Civ.App.—Beaumont 1979, no writ). One exception to this rule, however, exists in suits to recover child-support payments. Texas Rule of Civil Procedure 308-A allows an attorney’s fee to be taxed as part of the cost in an action to enforce child-support orders. In Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953) the Texas Supreme Court had this contention squarely before it and held that the constitutional right to not be imprisoned for debt is not violated by a contempt order enforcing a child-support judgment which includes an award of attorney’s fees. Id. at 486, 259 S.W.2d at 188; see Ex parte Myrick, 474 S.W.2d 767, 771-72 (Tex.Civ.App.—Houston [1st Dist.] 1971, no writ). The reasoning behind this exception is that public policy imposes an obligation upon parents to support their children. Rather than view this obligation as a debt, public policy considers it a legal duty of the parents. Allowances for attorney fees and costs to enforce this duty are of the same nature as the allowances of support for which they are a necessary means of enforcement. Consequently, they are not considered a debt. Ex parte Helms, 152 Tex. at 486, 259 S.W.2d at 188.

The granting of attorney’s fees also is challenged by relator on due process grounds in that a contemner does not know what the liquidated amount of such fees will be until the contempt order is entered. Relator contends that if a contemner is immediately bound over to the sheriff without an opportunity to purge himself, due process is offended. We disagree. Respondent’s motion for contempt included a prayer for reasonable attorney’s fees and costs. This placed relator on notice that reasonable attorney’s fees and costs could be included in the court’s order. At the hearing evidence was presented concerning attorney’s fees and relator chose not to object to it. Thus, no evidence was taken to indicate that the attorney’s fees awarded were not reasonable. Neither attorney’s fees nor costs can be alleged with specificity at the time pleadings are originally filed. Of necessity, therefore, these fees and costs can be determined only at the contempt hearing. Indeed, these sums are often dependent upon the acts of the alleged contemner at, or prior to, the hearing. Since relator had notice that reasonable attorney’s fees were prayed for and he did not object to the testimony concerning the reasonableness of those fees, due process was not offended.

Relator next relies on Ex parte Harris, 581 S.W.2d 545 (Tex.Civ.App.—Fort Worth 1979, no writ) as requiring that a contemner present in court must be identified by the former wife as her former husband, in order to make a case against the contemner. Respondent in the present case did not identify relator as her former husband at the hearing on the motion for contempt, and relator therefore contends that the contempt order is void. We disagree. The United States Supreme Court stated in In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1947) that:

[e]xcept for a narrowly limited category of contempts, due process of law . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.

Id. at 275, 68 S.Ct. at 508-09, 92 L.Ed. at 695. Thus, when suitable notice and opportunity to appear and be heard has been given, presence of the alleged contemner is not required to satisfy due process. See Blackmer v. United States, 284 U.S. 421, 440, 52 S.Ct. 252, 256, 76 L.Ed. 375, 384 (1932). Requiring identification of the alleged contemner at the contempt hearing is logically inconsistent with the fact that he is not required even to attend the proceeding. Relator was given notice of the hearing on the motion for contempt, was served with a copy of the motion, was ordered to appear and to show cause why he should not be held in contempt, was afforded opportunity so to do, and was represented by counsel. As a result, relator’s constitutional rights were protected, and a case was made out against him. See In re Oliver, 333 U.S. at 275, 68 S.Ct. at 508-09, 92 L.Ed. at 695; Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 395, 69 L.Ed. 767, 774 (1925). See generally Goldfarb, The Constitution and Contempt of Court, 61 Mich.L.Rev. 283 (1962). Relator was not bound over to the sheriff on the basis of his presence at the hearing, but rather by some other means of identification by the sheriff several days after entry of the contempt order. If the wrong “Jerry Joe McManus” had been taken into custody at that time, his remedy would have been by writ of habeas corpus challenging that action rather than the contempt order. We are not willing to engraft a new requirement of identification of the contemner at every stage of contempt proceedings. Consequently, we disagree with Ex parte Harris and decline to follow it.

Relator further argues that no evidence was admitted at the contempt hearing to show that he did not pay support, but simply that respondent did not receive it. At that hearing, however, respondent testified that she did receive payments each month, but that those payments were not m the proper amount. We find, therefore, that legally sufficient evidence did exist to support the district court’s finding that relator failed to comply with the support order.

Part of the divorce decree that relator was alleged to have violated reads as follows:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that JERRY JOE McMANUS pay child support in the sum of $300.00 per month per child. The first payment shall be due on the 19 day of August, 1977 and a like sum each month thereafter until the children reach the age of 18 years.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all payments are to be made through the Dallas County Child Support Office, Room 111, Old Courthouse, P. 0. Box 5530, Dallas, Texas.

Relator contends that this provision is vague in that it does not indicate to whom payment is to be made, exactly when payments, other than the first, are due, the amount which is due for each payment, and for how long payments are to be made. We do not agree with this contention. The first three items are clear and specific, and require no explanation. Until the oldest child attains eighteen years of age, there also will be no ambiguity as to the fourth item. See Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.1967). Since neither of the parties’ children has yet attained age eighteen, the divorce decree, when read as a whole, is not ambiguous, but is clear and specific. While a decree, to be enforceable through contempt proceedings, must delineate the requirements for compliance in clear, specific and unambiguous terms, id., it need not be full of superfluous terms and specifications adequate to counter any flight of fancy a contemner may imagine in order to declare it vague.

In light of the foregoing, relator’s application for a writ of habeas corpus is denied, and he is remanded to the custody of the Sheriff of Dallas County in accordance with the order of the district court.


author: AKIN, Justice.

text:
    DALLAS BUILDING & REPAIR, Appellant, v. Jerry BUTLER, Appellee.
    No. 20058.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 10, 1979.
    Rehearing Denied Nov. 9, 1979.

      Lee S. Bane, Dallas, for appellant.
    Robert K. Pace, Jordan, Rubin & Pace, Dallas, for appellee.
    Before AKIN, ROBERTSON and STO-REY, JJ.
   AKIN, Justice.

This appeal concerns a suit on an oral contract for construction of a roof. A jury found that an oral contract existed, and judgment was rendered for plaintiff on the verdict for the balance owing on the contract. Defendant appeals — asserting, (1) that there is no evidence to support the jury finding of an oral contract, (2) that the evidence establishes the existence of a written contract precluding recovery on an oral contract, and (3) that there is no pleading to support the submission of three special issues because plaintiff failed to prove agency. Because these contentions lack merit, we affirm.

The relevant facts are undisputed. Lane, a job superintendent of appellee, submitted a written bid proposal to David Brewer, President of Appellant Dallas Building & Repair, to put a 20 year bondable roof on a building owned by Thompson Can Company for $19,850. The written bid was introduced into evidence by the defendant, although it was not signed by the defendant. Following a telephone acceptance from Brewer, plaintiff installed the roof. The defendant paid Butler $7,000 by personal check, but refused to pay the balance owing on the contract. This litigation ensued.

Appellant first contends that there is no evidence to support the jury finding of an oral contract. Plaintiff pleaded that an oral contract existed and the jury was asked if they found an oral contract. Appellant contends that plaintiff did not offer sufficient evidence that the contract was oral, and thus the jury finding of an oral contract cannot stand. This contention misconstrues the plaintiff’s burden in this case.

In a suit based on contract, whether written or oral, the plaintiff is required to establish the basic elements of a contract, i. e. offer, acceptance, and consideration. See J. Calamari & J. Perillo, Contracts (2d ed. 1977). Plaintiff sustained this burden and obtained a favorable jury finding. In reviewing this finding on a “no evidence” point, we consider whether there is evidence of the basic elements of a contract, i. e. an offer, an acceptance and consideration. We find sufficient evidence as to each element. In fact, the appellant does not dispute the existence of a contract, but merely asserts that because the issue inquired about an oral contract, the plaintiff must prove that the contract was oral. We cannot agree. Absent some issue on the statute of frauds, any issue as to whether the contract is written or oral is irrelevant. A jury finding that the contract was oral could have no effect on the judgment and thus the question should not have been submitted to the jury in this manner. Mayflower Investment Co. v. Stephens, 345 S.W.2d 786, 789 (Tex.Civ.App.—Dallas 1960, writ ref’d n. r. e.), quoting 3 R. McDonald, Texas Civil Practice § 12.06.1, at 282 (rev. 1970). Even though the issue may have included the term “oral contract” erroneously, the appellant made no specific objection to the issue on this ground and has waived any right to complain. Tex.R. Civ.P. 274. Even if the issue was erroneous, the error could not have prejudiced appellant and was, therefore, harmless. Tex.R.Civ.P. 434. Indeed, inclusion of the term “oral contract” increased the burden upon plaintiff, since the existence of a contract was all he needed to establish.

Appellant next argues that a written contract was established as a matter of law, precluding recovery on an oral contract. We cannot agree. The ultimate issue is whether a contract exists. Whether the contract is written is merely collateral to this issue. If a written integration of the contract existed, and plaintiff attempted to alter the terms of the writing, the defendant’s remedy would be to object on the basis of the best evidence rule or the parol evidence rule. This objection would not deny plaintiff the right to prove the elements of a contract, 1. e., offer, acceptance and consideration. It would merely prevent the plaintiff from varying the terms of the written agreement by oral testimony. Appellant does not contend that plaintiff’s evidence varied the terms of a written agreement. Instead, he asserts that the existence of a writing precludes the plaintiff from recovery under a contract theory unless the plaintiff both pleads and proves the existence of a writing, or that the contract was oral. We disagree.

In Simmons and Simmons Construction Co. v. Rea, 155 Tex. 353, 286 S.W.2d 415, 417 (1955), the supreme court stated that a plaintiff possessing a writing unsigned by defendant may go to the jury either on a theory of oral contract or on a theory that the writing was intended to be effective without signing. The plaintiff in Rea chose the latter and did not prove his case. The plaintiff in the instant case did not rely on the writing, but presented evidence of offer, acceptance and consideration, and obtained a jury finding that a contract existed. The existence of a writing would not have prevented plaintiff from recovering under an oral contract in Rea, and neither does it here.

A writing precludes oral testimony as to the terms of a contract under the parol evidence rule and the best evidence rule. Appellant’s general objection that a written contract precludes recovery on an oral contract does not preserve best evidence or parol evidence objections for our review. Even if appellant had preserved these points, they could not be sustained because there was no written contract. Since the written bid was not signed by both parties, appellant was required to obtain a finding that both parties intended it to be effective without signing at the time the writing was made. Simmons and Simmons Construction Co. v. Rea, supra. Appellant obtained no such finding. Neither does the record show the requisite intent to be established as a matter of law. Furthermore, even assuming the written bid to be a contract, there can be no reversal because any error in allowing plaintiff’s testimony was harmless in that he did not attempt to vary the terms of the writing. Tex.R.Civ.P. 434. His testimony comported to the writing exactly.

Appellant contends next that the court erred in submitting the first three issues including agency because plaintiff did not plead that H. M. Lane was his agent. In this respect, the first three issues inquire if certain transactions transpired between “Plaintiff, Jerry Butler, or his agent, H. M. Lane, and defendant.” Appellant argues that his contract was with Lane, rather than plaintiff and, consequently, he concludes that it was error to assume the agency of Lane in the issue. We cannot agree because the fact that Lane was acting for plaintiff as his agent throughout the transaction was undisputed. Vahlsing Christina Corp. v. Ryman Well Service, Inc., 512 S.W.2d 803, 809 (Tex.Civ.App.—Corpus Christi 1974, no writ).

Because only disputed ultimate fact issues need be submitted, no error is shown. Tex.R.Civ.P. 279. Furthermore, plaintiff had no duty to plead agency in order to recover. The details of how the parties entered into the contract are not ultimate fact issues here but are instead merely evidentiary issues. Appellant does not dispute the fact that a contract to install the roof for $19,850 was made and that the work was done. Rather, appellant argues that the contract was with Lane rather than plaintiff and that for this reason plaintiff should be denied recovery. Neither can we agree with this contention because, as previously noted, it is undisputed that Lane was at all times acting for plaintiff, and that Lane did not claim or seek recovery from appellant for the balance due under the contract.

Judgment affirmed.