author: SHANNON, Justice.

text:
    W. Sale LEWIS, Savings and Loan Commissioner of Texas, et al., Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF DALLAS, Appellee.
    No. 12259.
    Court of Civil Appeals of Texas, Austin.
    June 18, 1975.
    Frank E. McLain, Turner, Rodgers, Sail-ers, Jordan & Calloway, Dallas, John L. Hill, Atty. Gen. of Tex., John H. Banks, Asst. Atty. Gen., Austin, for appellants.
    James K. Presnal, James K. Presnal, Inc., Austin, for appellee.
   SHANNON, Justice.

Appellee, First Federal Savings and Loan Association of Dallas, filed suit in the district court of Travis County to set aside an order of the Savings and Loan Commissioner which granted the application of Oak Cliff Savings and Loan Association to change its name to First Texas Savings Association of Dallas. Upon trial to the court, judgment was entered setting aside the Commissioner’s order. Appellants are Oak Cliff Savings and Loan Association and W. Sale Lewis, Savings and Loan Commissioner, hereafter termed, “Oak Cliff,” and the “Commissioner,” or “appellants.” We will reverse the judgment of the district court.

In the hearing before the Commissioner appellee appeared and protested the name change. After the hearing, the Commissioner filed “findings of facts” and “conclusions of law” and found, among other things, that there are twenty-eight savings and loan associations operating in Texas using the words, “First Federal,” in their respective names, and that there are forty-seven savings and loan associations in Texas using the word, “First,” in their names. The Commissioner found further that there are thirteen commercial banks and two savings and loan associations in Dallas County using the word, “First.” The Commissioner concluded that there was a “. . . sufficient difference between the name FIRST TEXAS SAVINGS ASSOCIATION OF DALLAS and the name referred to by the protestants, so as not to be confusing to the extent of damage or injury to any of the protestants to this application.”

In its trial petition appellee pleaded that for many years it had operated a savings and loan business in the Dallas metropolitan area and had spent large sums of money in advertising to bring to appellee “recognition and identity.” In its advertising program appellee had advertised as “FIRST FEDERAL” or “FIRST FEDERAL SAVINGS.” Appellee averred further that the Commissioner’s order was “. . . unlawful, unreasonable, arbitrary, and capricious . . . ” in that, among other things, the order was in violation of Vernon’s Tex.Rev.Civ.Stat.Ann. Art. 852a § 2.12 since the “. . . only evidence of any probative value upon which the Commissioner could base his opinion indicated that the name change sought by OAK CLIFF would ... be confusing to the public and do irreparable harm to this Plaintiff [appellee].”

In its trial pleading Oak Cliff alleged that the Commissioner’s order was “fully supported by substantial evidence.”

The trial in district court was upon the record made before the Commissioner. As already observed, the judgment of the district court set aside the Commissioner’s order. In that judgment there appear the following findings.

“1. That there was not substantial evidence in the record before the Court to support the order of the Defendant W. Sale Lewis, Savings and Loan Commissioner of Texas, authorizing the change of Defendant Oak Cliff Savings and Loan Association’s name to FIRST TEXAS SAVINGS AND LOAN ASSOCIATION.
“2. That there was no substantial evidence or other facts existent at the time of the hearing before the Savings and Loan Commissioner of Texas on the 11th day of March, 1973, or at the time the Savings and Loan Commissioner of Texas entered his order dated the 15th day of June, 1973, to support such order or upon which the Savings and Loan Commissioner of Texas could have based his order.
“3. That the order of the Savings and Loan Commissioner of Texas is arbitrary, capricious and illegal.
“4. That the Plaintiff First Federal Savings and Loan Association of Dallas and the Defendant Oak Cliff Savings and Loan Association each do business in the City of Dallas, Texas, and the City of Dallas constitutes the primary trade area of both such associations, and both such associations compete in the Dallas market for business.
“5. That the use of the name FIRST TEXAS SAVINGS AND LOAN ASSOCIATION by the Defendant Oak Cliff Savings and Loan Association would result in the public’s confusing such association with the Plaintiff First Federal Savings and Loan Association of Dallas, and in general confusion in the Dallas savings and loan market as between said associations, and that such confusion as between Plaintiff First Federal Savings and Loan Association and Oak Cliff Savings and Loan Association, if Oak Cliff Savings and Loan Association be permitted to use the name FIRST TEXAS SAVINGS AND LOAN ASSOCIATION, would result in damage to Plaintiff First Federal Savings and Loan Association of Dallas of an indeterminate amount and that Plaintiff First Federal Savings and Loan Association of Dallas is entitled to protection therefrom.”

The pleadings and judgment show that the parties and the court regarded the case as one governed by the substantial evidence rule review. Though we are not entirely satisfied concerning the proprietary of such a review from an order by an administrator exercising the function of granting a name change, we will, nevertheless, treat the matter as a substantial-evidence-rule appeal.

The statutory basis for the Commissioner’s consideration of the name change is Tex.Rev.Civ.Stat.Ann. Art. 852a § 2.12. That statute provides in part as follows: “No certificate of incorporation of a proposed association having the same name as any other association authorized to do business in this State under this Act or a name so nearly resembling it as to be calculated to deceive shall be issued by the Commissioner . . . ” Art. 852a § 2.12 seems to adopt the rule that equity will protect a corporation in the use of a name selected and used by it. That rule likewise applies where a subsequent corporation attempts to use a similar name to that of an existing corporation. Board of Insurance Commissioners v. National Aid Life, 73 S.W.2d 671 (Tex.Civ.App.1934, writ ref’d). The statutes of many states expressly adopt the rule, and it has been held, even wherein no express statute exists, that the officer whose duty it is to grant or refuse charters will not permit the use by any subsequent corporation of a name similar to or so nearly like that of another corporation as would be likely to produce mistake or confusion. Board of Insurance Commissioners v. National Aid Life, supra.

Appellee placed into evidence a study done at its request to determine if there was any confusion associated with the name “First Texas Savings Association” among residents of Dallas. The conclusion drawn from the study was that “. . . some mis-identification [sic] or confusion is associated with the use of the name First Texas Savings Association. This mis-identification [sic] or confusion of the name First Texas Savings Association is associated with (to a lesser degree) the advertising of First Federal Savings and Loan Association.”

Despite appellee’s opinion evidence, we are of the view that the Commissioner did not abuse his discretion in concluding that there was a sufficient difference in the names so as not to be confusing. See Board of Insurance Commissioners v. National Aid Life, supra. By the terms of Tex.Rev.Civ. Stat.Ann. Art. 852a § 2.12, the Commissioner may not allow a savings association to employ the (1) same name as another savings association or (2) a name so nearly resembling that of another savings association so as to be calculated to deceive.

Manifestly, “First Texas Savings Association of Dallas” is not the same name as “First Federal Savings and Loan Association of Dallas.” The distinctive portion of the names of the two corporations are “First Texas” and “First Federal.” The name, “Texas,” is in no way similar to the name, “Federal,” and the Commissioner could justifiably find that few persons would confuse those words. It is true that both the proposed designation and that of appellee employ the term, “First,” but as the Commissioner found, the parties are not alone in their preference for that term. Many banks and savings and loan associations over the State use the term “First” in their respective names, and in Dallas County, alone, there are thirteen commercial banks and two savings and loan associations which employ that term in their corporate names. Under these circumstances, we agree with the Commissioner that the proposed name is most probably not calculated to deceive.

The judgment is reversed and judgment is here rendered affirming the order of the Savings and Loan Commissioner.

      . First Federal Savings and Loan Association of Austin was also protestant in the proceedings before the Commissioner, but that association did not appeal from the Commissioner’s order.

      . The Commissioner’s order permitted Oak Cliff to change its name to “First Texas Savings Association of Dallas.” Throughout the judgment the district court erroneously refers to the new name as “First Texas Savings and Loan Association.”


source: Caselaw Access Project

author: KEITH, Justice. STEPHENSON, Justice

license: Public Domain

text:
    Williamson STEPHENSON et al., Appellants, v. Werner J. PERLITZ et ux., Appellees.
    No. 7706.
    Court of Civil Appeals of Texas, Beaumont.
    May 29, 1975.
    Rehearing Denied July 10, 1975.
    Scott R. Kidd, Austin, for appellants.
    Thomas H. Watkins, Austin, for appel-lees.
   KEITH, Justice.

The question is, Does a restrictive covenant in a deed providing that “[a]ll improvements to be erected upon the premises hereby conveyed shall be built and used for residence purposes . . . [and] [o]nly one residence shall be erected upon the premises hereby conveyed” prohibit the erection of a duplex or two-unit dwelling thereon? We answer the question in the negative for the reasons now to be stated.

All parties own lots in Block 3 of Edge-mont Addition in the City of Austin, there being many costly and well-kept single family homes therein including those of the plaintiffs. The Newman plaintiffs had resided upon their lot since 1960, the Stephenson plaintiffs on their lot since 1970. The Perlitz defendants purchased their lot in 1973 with knowledge of the restrictive covenants mentioned above. The lots of the parties are either adjacent or very close to each other.

Plaintiffs instituted this suit when they learned that the defendants had begun the construction of a duplex upon their lot, only the foundation having been started at the time of the filing of suit. A temporary restraining order prohibiting further construction was continued in effect as a temporary injunction; but, upon the hearing on the application for the permanent injunction, tried to the court, the temporary injunction was dissolved and the permanent injunction was denied. Although the trial court filed findings of fact and conclusions of law (and refused to make additional findings or conclusions), the controlling facts are not in dispute.

Plaintiffs’ main contention, upon which all of their subsidiary points are based, is that the deed restrictions set out earlier apply to and prohibit the construction of the duplex by defendants since it would constitute more than one residence upon the lot. We disagree and affirm the judgment of the trial court.

Our decision is controlled by MacDonald v. Painter, 441 S.W.2d 179 (Tex.1969), and cases therein cited. We extract several rules, so clearly stated therein, as applicable to the case at bar.

1. Having examined all of the restrictions “in context and apply[ing] to them the settled rules of construction, we conclude that the covenants in question are free of uncertainty and ambiguity.” (441 S.W.2d at 182)

2. The restrictions found in the deeds in this case (“used for residence purposes” and “[o]nly one residence shall be erected upon the premises”), in the language of Justice Pope in MacDonald, supra, “do not prohibit the construction of the duplexes.” (Id.)

3. “The terms ‘residence purposes,’ and ‘residences’ require the use of property for living purposes as distinguished from uses for business or commercial purposes.” (citations omitted)

4. “According to most authorities, the terms, without other limiting words, do not prohibit duplex living units.” We find no such limiting words in our deeds.

With these guidelines established, we turn now to the series of out-of-state cases cited by Justice Pope in support of our last quotation from that opinion. The first case cited, Bear v. Bernstein, 261 Ala. 230, 36 So.2d 483, 14 A.L.R.2d 1372 (1948), forms the basis of a lengthy annotation in 14 A.L.R.2d 1376 entitled “Covenants — Multiple Residence.”

The Bear Court framed the question in this language:

“The question is, does a restrictive covenant in a deed providing that the land shall be ‘used only for residential purposes * * * and that only one residence shall be erected on * * * [the] lot’ prohibit the erection of a duplex or four-unit apartment house.” (36 So.2d 483)

After considering many authorities, the Court concluded that the restrictions quoted in the question did not prohibit the construction of a duplex or apartment house upon the property.

The second case cited in MacDonald was Weber v. Graner, 137 Cal.App.2d 771, 291 P.2d 173 (1955), where the restrictive covenant provided “that the premises are ‘to be occupied for residence purposes only, and nowise for business purposes;’ ” and “Plaintiffs proposed improvement consists of a two-story building comprising 48 apartments or separate residential units in which families will live.” (291 P.2d at 176)

The Weber Court concluded that the apartment house would not violate the restrictive covenant, saying:

“Thus these premises are ‘to be occupied for residence purposes,’ and this is so whether the structure is occupied by one family or a number of families. The word ‘residence’ has reference to the use or mode of occupancy to which the premises may be put. If it had been intended that the improvements to be placed on this property were to be for the use of one family only, words indicating such an intention undoubtedly would have been used, as is frequently done, such as ‘a single residence,’ ‘a private residence,’ ‘a private home,’ ‘a private dwelling,’ ‘a single family dwelling,’ or ‘a single dwelling house.’ ” (Id.)

Later comments by the Weber Court indicate that court placed emphasis upon the singular “a” in each of the illustrations given in the foregoing quotation. (Id. at 177)

In the third case cited by Justice Pope, Baker v. Smith, 242 Iowa 606, 47 N.W.2d 810 (1951), the Court was considering “a high-class residential addition” and the covenants were quoted as restricting the use of the lots “ ‘for residence purposes exclusively and for no other purpose whatever.’ ” (Id. at 811) The Supreme Court of Iowa held that the trial court was in error when it construed the quoted language to mean “ ‘for single family residence purposes exclusively.’ ” (Id. at 812) Many cases were cited in support of the holding that the quoted restriction did not prohibit the construction of an apartment building upon one of the lots.

Finally, Justice Pope cited Sporn v. Overholt, 175 Kan. 197, 262 P.2d 828 (1953). In Sporn the lots were “designated as residence lots” and “no dwelling shall be erected thereon which shall cost less than Three Thousand Dollars; said dwelling to consist of four or more rooms.” (262 P.2d at 829-830, emphasis in text) The Sporn Court concluded:

“It appears to be the general rule that any kind of a building devoted exclusively to residence purposes, whether a duplex or an apartment house may be erected under a covenant limiting the use of the property to residence purposes. * * Generally, the restrictions using the unqualified terms ‘residence’ or ‘dwelling’ have been held merely to limit the type of use to be made of the property and not to forbid the erection of a residence for occupancy by several families such as a duplex or double house which, under the weight of authority, has been held permissible, as the terms ‘residence’ and ‘dwelling’ have the effect merely to limit the property to living quarters, as distinguished from business or commercial uses.” (Id. at 831, emphasis supplied)

The dissent, citing Green v. Gerner, 283 S.W. 615 (Tex.Civ.App.—Galveston 1926), affirmed 289 S.W. 999 (Tex.Com.App.1927), cited in MacDonald, overlooks Justice Pope’s conclusion: “We conclude that the cases upon which respondents rely [one of which was Green v. Gerner ] clearly prohibit units other than single family dwellings, whereas, the Mira Loma restrictions lack that clarity.” (441 S.W.2d at 184)

It is not for this court to grudgingly or narrowly restrict the plain import of decisions of our Supreme Court. When a change is made in the law, and an important one was made in MacDonald, it is the duty of an intermediate court to follow explicitly the teachings of our Supreme Court. Justice Pope, with his usual meticulous regard for the orderly development of the law of this state, has imported a series of strong cases which enunciate the majority rule in this country. The crux of the holding in each of the cases cited is this: “If it had been intended that the improvements to be placed on this property were to be for the use of one family only, words indicating such an intention undoubtedly would have been used.” Weber, supra. Thus, when no such intention was indicated, the restriction cannot be extended; hence, it lacks “clarity.” MacDonald, supra.

Under our view of the record, we do not find it necessary to discuss the subsidiary points brought forward by the plaintiffs. Under the undisputed facts of this case, the trial court properly refused to grant the permanent injunction sought by the plaintiffs and the remaining points of error are immaterial.

The opinion in MacDonald v. Painter, supra, controlled the action of the trial court; and, the same opinion dictates an affirmation of the judgment denying the permanent injunction. Accordingly, the judgment below being correct, it is

Affirmed.

STEPHENSON, Justice

(dissenting).

I respectfully dissent. I do not agree that this case is controlled by MacDonald v. Painter, supra. The significant factual situation is too dissimilar. In MacDonald, the restrictive covenant says nothing about one residence, while it is clear in the case before us that only one residence can be constructed upon the lot in question. The Supreme Court in MacDonald does not say a duplex is one residence. (The conclusion reached by the majority in the case before us.)

In my opinion, MacDonald merely tells us that if the restrictive covenant prohibits the use of property for anything except “residence purposes” that the erection of multiple dwellings is not forbidden. See the explanation at page 182 together with the quotation from 14 A.L.R.2d 1381.

In the case before us the restriction says specifically that only one residence can be erected upon this lot. In MacDonald, the Supreme Court found the use of the term “residences” shows an intent to permit more than a single residence. No such wording appears in the restriction before us.

I would hold that this case is controlled by Green v. Gerner, 283 S.W. 615 (Tex.Civ.App.—Galveston, 1926) judgment affirmed by Tex.Com.App., 289 S.W. 999 (1927). In this case the restriction was “ ‘no building other than one residence with the necessary and appurtenant out buildings and improvements shall occupy the lots herein sold’ ” (at 283 S.W. 616). The Court of Civil Appeals held that under this restriction an apartment house with eight living units if erected would violate the covenant, even though it was contended that the apartment house was for residential purposes only, was but one building, and was not obnoxious to the provision in the deed.

It is clear to me that the Supreme Court in MacDonald, when discussing Green v. Gerner at page 184, was not intending to overrule Green v. Gerner, but merely to distinguish it. As stated above the term “one residence” is the difference between these two lines of decisions. Apparently, there is no case in Texas holding that a duplex is “one residence.”


author: GUITTARD, Justice.

text:
    Roland O. DAVIS, Appellant, v. Norman N. CAMPBELL and Harold Collum, Appellees.
    No. 18595.
    Court of Civil Appeals of Texas, Dallas.
    June 19, 1975.

      James P. Finstrom, Dallas, for appellant.
    Myles H. Pennington, Grand Prairie, for appellees.
   GUITTARD, Justice.

Roland Davis sued Norman Campbell and Harold Collum for damages for breach of an oral agreement concerning a tract of land. Defendants moved for summary judgment on the ground, among others, that the suit was barred by the Statute of Frauds, Tex.Bus. & Comm.Code Ann. § 26.-01(b)(4), V.T.C.A. (Vernon 1968). The trial court sustained the motion, and plaintiff appeals. We reverse on the ground that a fact issue exists as to whether the Statute of Frauds is rendered inapplicable by plaintiff’s performance of his obligations under the oral agreement. We interpret the summary-judgment evidence as tending to show that plaintiff had an interest in the property in the nature of an oral option, which he agreed to transfer to defendants in consideration of defendants’ promise to give him part of the profit on a possible resale, and that defendants had the benefit of plaintiff’s performance of this contract but failed to keep their promise.

Plaintiff’s affidavit and deposition were before the court on the motion for summary judgment. When viewed in the light most favorable to plaintiff, they support the following version of the facts.

The property was a motel, which had been owned and operated by plaintiff Davis. Plaintiff had fallen behind in his payments to both first and second lienholders, and in October 1970 the second lien was foreclosed. The property was bought at the sale by a representative of the C. D. Wyche estate, the holder of the second lien. Davis remained in possession as tenant. After the foreclosure the trustee of the Wyche estate gave defendant an “oral option” to repurchase the property on or before September 1, 1971, for $55,000, the amount of the indebtedness formerly secured by the second lien. The trustee advised Davis that all the estate wanted was to get back the money it had in the property.

Subsequently, a real-estate agent approached Davis on behalf of a group of doctors who held an option on an adjoining tract of land and were interested in erecting a building on the two tracts. The agent presented an option contract specifying a price of $242,000, but when he learned that title was held by the Wyche estate rather than by Davis, negotiations were discontinued. Davis then sought to borrow enough money to repurchase the property from the Wyche estate and consummate the proposed sale to the doctors. For this purpose, he approached defendant Campbell, with whom he was not previously acquainted. He explained to Campbell his understanding with the Wyche estate, asked for a loan of $55,000, and proposed that he purchase the property from the Wyche estate, take title in his own name, and repay the loan when the property was sold, together with ten percent interest and a “bonus” of $5,000. Campbell was interested but desired to have the property inspected by defendant Collum, a real estate broker. Collum did so and found that the property was of sufficient value. Campbell then agreed to lend the money for ten percent interest and a commission of $6,500 to be paid when the property was resold. Later, on or about August 28, 1971, two or three days before the oral option was to expire, Campbell changed the agreement and demanded that title to the property be held in the name of Collum and that Collum be paid a fee of $2,000 in addition to the $6,500 “bonus” to be paid to Campbell. Otherwise, Campbell said, he would honor his agreement. Davis objected to putting the title in Collum’s name but agreed to do so because he could not raise the $55,000 himself before September 1, the deadline set by the Wyche estate. Davis asked Campbell to put their agreement in writing, but Campbell refused to do so, saying, “We’ll treat you right.” Davis and Campbell attended the closing of the transaction at the title company, at which the Wyche trustee conveyed the property to Collum, subject to the outstanding first lien. Davis paid transfer expenses of $635 and signed a quitclaim deed in favor of Collum. Davis says in his affidavit that he exercised his option with the Wyche estate through this transaction with defendants. From this evidence the inference may be drawn that Davis notified the Wyche trustee that the option was being exercised, that he directed the trustee to sign a deed in favor of Collum, and that the price paid for the property was approximately $55,000, the amount for which the Wyche trustee had agreed to sell the property back to Davis.

After this transaction, Davis signed a letter agreeing to pay Collum and Campbell $1,600 per month as rent on the property. Davis knew that he could not actually pay that much because the property was not earning it, but he agreed because he expected the property to be resold within a month. This agreed rent was barely enough to cover the payments due on the first lien.

Defendants’ interpretation of the evidence, as stated in the brief, is that after the transfer to Collum, Davis “had a continued privilege of redemption by oral promise.” This interpretation is evidently based on Davis’s testimony that Collum told Davis that he and Campbell would let Davis have the property back if he could “come up with the money.” This conversation, however, appears to have taken place after the transfer to Collum and, according to Davis, was not the agreement between the parties at the time of the transfer. Davis testified that after the transfer Campbell switched the deal and said that if Davis would come in with a buyer Campbell would sell the property back to Davis and give him sixty-five to eighty percent of the profit. Davis attempted to negotiate further with representatives of the doctors who had previously indicated an interest in the property, but they refused to negotiate with him when they found that Campbell and Collum were in the picture. Davis contacted another prospective purchaser, who offered either to buy the property or lend the money, but when Davis approached Collum about the matter Collum said he would have to see Campbell, and when Davis talked to Campbell, Campbell referred him back to Collum. Davis never submitted an offer on the property because Campbell told him that they could get more money by letting the doctors have the property than by letting him buy it back.

In July 1972, defendants sold the property to the doctors for a consideration which Davis alleges to be $210,000. Collum gave Davis written notice that the property had been sold and that his lease was terminated. Davis then filed this suit, alleging that the acts of defendants had deprived him of his “equitable interest” in the property, to his damage in the amount of $90,000. Defendants answered and moved for summary judgment, alleging that plaintiff’s claim was barred by the Statute of Frauds, by the Texas Trust Act, by the Real Estate License Act, and by the lease which plaintiff signed as tenant of defendants. The trial court granted the motion but did not state the ground of the judgment. Consequently, we shall consider whether any of the grounds specified and briefed on this appeal establishes the absence of a genuine issue of material fact as required by Texas Rules of Civil Procedure, rule 166 — A.

The first ground specified is the Statute of Frauds, Tex.Bus. & Comm.Code Ann. § 26.01(b)(4) (Vernon 1968), which requires a written memorandum for enforcement of a “contract for the sale of real estate.” Notwithstanding this statute, an oral contract which has been partly performed may be enforced in equity if denial of enforcement would amount to a “virtual fraud” in the sense that the party acting in reliance on the contract has suffered a substantial detriment, for which he has no adequate remedy, and the other party, if permitted to plead the statute, would reap an unearned benefit. Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. 273, 279 (1927); Matthewson v. Fluhman, 41 S.W.2d 204, 206 (Tex.Comm’n App.1931, jdgmt. adopted); 2 Corbin on Contracts § 429 (1950). A pur chaser may bring an oral contract within this rule by showing (1) payment of the consideration, (2) possession of the property, and (3) valuable improvements or other facts that would make the transaction a fraud on the purchaser if the contract is not enforced. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921). Likewise, a vendor may be entitled to enforce the oral contract if he shows performance of the contract by delivery of possession to the purchaser and a detrimental change of position, for which the vendor has no adequate remedy. Texas Co. v. Burkett, supra; Morris v. Gaines, 82 Tex. 255, 17 S.W. 538, 539 (1891); 2 Corbin on Contracts § 424 (1950); and cf. Kirk v. Beard, 162 Tex. 267, 345 S.W.2d 267, 270 (1961) (oral agreement to make mutual wills); Newsom v. Newsom, 378 S.W.2d 842 (Tex.1964) (lessor permitted to recover rent stipulated in oral lease for more than one year).

In the light of these authorities we conclude that the circumstances above recited justify enforcement of the contract notwithstanding the Statute of Frauds. After plaintiff had lost title to the property by foreclosure, he may have had no legal interest in the land, or even any enforceable equitable interest, but he had something of substantial value. He had the promise of the record owner to let him repurchase the land at a certain price, and he also had the prospect of a sale to a group of purchasers who already held an option on the adjoining land and had indicated an interest in buying the land in question at a price substantially in excess of that for which the owner had promised to sell it to plaintiff. The evidence supports the inference that when plaintiff approached Campbell for a loan, Campbell persuaded him to exercise his option in favor of Collum but otherwise promised to compensate plaintiff in accordance with plaintiff’s proposal. The evidence supports the further inference that plaintiff fully performed his duty under the oral agreement by exercising his option and directing the Wyche trustee to sign a deed in favor of Collum. Plaintiff also paid the costs of the transfer and executed a quitclaim deed in favor of Collum.

By this transaction Davis sustained a substantial detriment in that he gave up any chance he had of purchasing the property for himself under the terms of his oral option. He has no other remedy because that option cannot be restored to him. Defendants, on the other hand, were enabled to purchase the property and sell it again at a price which plaintiff alleges to have produced a substantial profit. They obtained the benefit of whatever value plaintiff’s interest may have had by promising to pay him a part of their profit on resale of the property, in accordance with his proposal. They still retain that benefit, but they resist enforcement of their promise on the ground that it was not in writing. This conduct amounts to more than a simple breach of promise. Retention of the benefits of the oral contract without payment of the agreed consideration amounts to a virtual fraud, which justifies enforcement of the contract under the doctrine of part performance, as laid down in the authorities above cited. We hold that plaintiff’s affidavit and deposition raise a genuine issue of material fact in this respect.

Defendants argue that plaintiff had nothing of value to sell them because his oral option to repurchase the property from the Wyche estate was unenforceable. Defendants have no standing to raise this question. The oral promise of the Wyche trustee was as good as a legally binding option so long as the trustee was willing to honor it. Since the trustee did honor it and defendants got the benefit of it when the trustee conveyed the land to defendant Col-lum at plaintiff’s direction, lack of enforceability of the option is no defense to plaintiff’s claim for compensation. An oral agreement for sale of land is not void but merely unenforceable, and when the parties have acted on it, other persons have no standing to raise the question of enforceability. Avinger v. Campbell, 499 S.W.2d 698 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.); Murphy v. Johnson, 439 S.W.2d 440 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ); McManus v. Matthews, 55 S.W. 589 (Tex.Civ.App.—1900, writ ref’d); and of. Clements v. Withers, 437 S.W.2d 818, 821 (Tex.1969). In Avinger v. Campbell, supra, we had before us an “oral option” and specifically held that third parties could not attack it as unenforceable under the Statute of Frauds. See also Orlando v. Ottaviani, 337 Mass. 157, 148 N.E.2d 373, 376 (1958), in which plaintiff’s exercise of an oral option in favor of defendants was held sufficient performance to justify enforcement of an oral promise to convey part of the land, notwithstanding the Statute of Frauds.

Neither will defendants be heard to say that the oral option had no value because it was about to expire and plaintiff could not raise the money to exercise it. Plaintiff did raise the money by negotiating with defendant Campbell. Campbell was willing to advance the money on the basis of Collum’s appraisal. If Campbell had not agreed initially to advance the money, plaintiff would have had more time to raise the money from some other source. Defendants argue that they could probably have bought the property on the same terms from the Wyche trustee after September 1, when the oral option expired. This is speculation. The evidence would support an inference that defendants chose rather to deal with the Wyche estate on the basis of plaintiff’s option and yielded to plaintiff’s insistence to close the deal before the option expired. After acquiring the property on that basis, they are in no position to say that the option was without value to them.

The other grounds specified in defendant’s motion for summary judgment become similarly untenable when the oral contract is viewed as a sale by plaintiff of his interest under the oral option. No unenforceable trust is involved, since plaintiff’s “equitable interest” after the transfer to Collum was not an interest in the land, but only an equitable claim for compensation arising out of the oral contract. No brokerage fee is involved because plaintiff was acting for himself in selling his own interest to defendants. The Real Estate License Act does not apply to a sale by an owner of his own property. Tex.Rev.Civ. Stat.Ann. art. 6573a, § 6(4) (Vernon 1969); and see Harvey v. Brown, 80 Idaho 379, 330 P.2d 982, 985 (1958). Lastly, plaintiff’s acknowledgment of Collum’s title to the property by signing the lease agreement is entirely consistent with a previous sale by plaintiff of his interest under the oral option.

For the reasons stated, plaintiff’s points of error are sustained, and the cause is remanded for trial.

Reversed and remanded.

WILLIAMS, C. J., not sitting.


author: YOUNG, Justice.

text:
    John T. WILLIAMS, Appellant, v. FIRST NATIONAL BANK OF FLOUR BLUFF, Appellee.
    No. 913.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 5, 1975.

      Hubert L. Stone, Jr., Corpus Christi, for appellant.
    David V. Herin, Fischer & Fischer, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This summary judgment action arose from a suit brought by First National Bank of Flour Bluff against John T. Williams. There, the bank sought to recover the indebtedness evidenced by a combined retail installment contract and security agreement and to foreclose the security interest and lien covering a travel trailer.

The trial court granted the bank’s motion for summary judgment and entered judgment in favor of the bank for $4,957.40, for foreclosure of the lien, and for order of sale of the trailer. Williams appeals from that judgment.

On April 12, 1972, Williams, as buyer, executed and delivered to Bishop Mobile Center, (not a party to this suit) as seller, the instrument in question. Thereafter, Bishop assigned its interest in the instrument to the bank.

The bank contends that Williams has defaulted on the note payments and that its summary judgment evidence shows the bank to be the holder and owner of the note and thus entitled to judgment as a matter of law.

By affidavit, Williams states that a fact issue exists whether his execution and delivery of the instrument was conditioned upon the agreement of the bank to furnish insurance which would make the payments called for, should Williams become disabled. Williams says that payments which the bank alleges to be in default “. would have been paid by the insurance to be provided by Plaintiff.” (Emphasis added). Further, he states that no valid insurance policy was provided by the bank even though he was charged for and paid for such insurance.

The copy of the instrument filed in this case clearly shows that Williams requested credit life, together with accident and health insurance. It further shows that he was charged $369.26 for such insurance and that part of the indebtedness evidenced by the instrument was attributable to the insurance premiums. The bank’s exhibit “B” demonstrates that some payments were made by Williams.

In his two points of error, appellant asserts that in failing to procure insurance for appellant, appellee has become an insurer; that the pleadings, motions and affidavits on file in the cause do not show that no bona fide fact issue exists with regard to appellant’s liability to appellee.

Both of appellant’s contentions will be discussed together. The burden of proving that there is no genuine issue of any material fact is upon the movant. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the moving party. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.Sup.1965); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

However, where the plaintiff moves for summary judgment in an action in which the defendant has pleaded an affirmative defense, he is entitled to have his summary judgment if he demonstrates by evidence that there is no material factual issue upon the elements of his claim, unless his opponent comes forward with a showing that there is such a disputed fact issue upon the affirmative defense. Gulf, Colorado & Santa Fe Railway Company v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958). By sworn affidavit, John W. Greene, vice president of appellee bank, stated that the bank is the owner and holder of the instrument. He identified exhibit “A”, attached to the affidavit, as a copy of the instrument. Mr. Greene further stated that the instrument was executed and delivered by appellant and that appellant had defaulted in the payment of the indebtedness there represented. He establishes the unpaid principal and interest as $4,207.40.

Exhibit “A” bears the signature of appellant. It also demonstrates that the appellee was not an original party to the instrument. The original terms and covenants of the obligation were between appellant and Bishop. On April 24, 1972, Bishop assigned the total of payments due it under the terms of the note to appellee. The first installment payment on the instrument was not due until May 15, 1972. Thus, there was no default in the installment payments at the time of the transfer to appellee.

Appellant’s controverting affidavit appears to admit execution and delivery of the instrument. Having established that appellant executed and delivered the instrument in question to Bishop; that it was assigned for valuable consideration to ap-pellee; that appellee is the holder and owner; and that the payments were in default, the judgment in favor of appellee was proper, unless appellant has come forward to show that there is a disputed fact issue upon an affirmative defense. See Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.Sup.1971); Schindler v. Ag Aero Distributors, Inc., 502 S.W.2d 581 (Tex.Civ.App.—Corpus Christi 1973, no writ).

Appellant’s contentions that a fact issue is raised appear to rest upon two theories.

First, appellant contends that in agreeing to purchase insurance for appellant, appellee had a duty during the time appellant was totally disabled, to make the unpaid installment payments because it failed to purchase valid insurance in behalf of appellant. There is, however, no evidence that appellee agreed to purchase insurance for appellant. Any such agreement was clearly between appellant and Bishop.

Second, appellant apparently contends that there is a failure of consideration to support the obligations under the instrument in that no insurance was obtained by appellee. Assuming that no valid insurance policy was provided by appellee, appellant has not raised the issue of failure of consideration. As previously noted, the burden of the obligation, if any, to procure proper insurance for appellant was upon Bishop. Appellant has failed to introduce any evidence that Bishop did not procure an insurance policy in behalf of appellant.

Because the appellee has demonstrated that there are no material fact issues regarding appellee’s claim, the judgment of the trial court was proper. All of appellant’s points of error are overruled.

The judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    FULBRIGHT GRAZING ASSOCIATION, INC., Appellant, v. L. R. RANDOLPH, Appellee.
    No. 8285.
    Court of Civil Appeals of Texas, Texarkana.
    June 10, 1975.
    Rehearing Denied July 8, 1975.
    Pat Beadle, Beadle & Beadle, Clarksville, for appellant.
    Leighton Cornett, Cornett, Echols & Biard, Paris, for appellee.
   CHADICK, Chief Justice.

This action originated as a suit for in-junctive and other relief. A judgment was entered in the trial court unsatisfactory to both L. R. Randolph, plaintiff below, and Fulbright Grazing Association, Inc., one of the defendants below. Both have perfected an appeal.

L. R. Randolph, as plaintiff, filed this action in a District Court of Red River County naming as defendants Fulbright Grazing Association, Inc., Travis King, Eldon Chaloner, Donnie Smith, J. C. Smith, Dickie King, Carl Williams, Mike Williams, and Mrs. R. L. Jones. Randolph plead that he was a member of Fulbright Grazing Association, Inc. and had an interest in its assets. His petition alleged that those named as defendants intended to sell the assets of the grazing association, consisting principally of two thousand two hundred eighty (2,280) acres of land, for approximately $800,000.00 and had conspired together to secure for themselves all benefits to be derived from a sale of the land and dissolution of the corporate association and to exclude him from such benefits. Randolph’s pleadings also requested that the respective interest of each of the parties in the association’s assets be ascertained. His formal prayer for relief was that a restraining order issue restraining sale of association land pending a hearing; that temporary injunction issue enjoining a sale or attempt to sell association property during the pendency of the suit; that upon final hearing, defendants be permanently enjoined from selling or attempting to sell the association property; and for cost and expenses, together with such other and further relief that he might show himself entitled.

The association and other named defendants answered with special exceptions, a general denial and plead that Randolph voluntarily withdrew from membership in the association; alleging also, that Randolph was estopped to claim membership because of inequitable actions, omissions and conduct. Prayer was that the trial court dissolve a temporary restraining order theretofore issued and deny temporary injunction; and for such other relief, general and special, at law or in equity, to which they might be justly entitled.

Additionally, it should be recited in clarification of the record that neither Farmers Home Administration, an agency of the United States which is mentioned in the extract from the trial court’s judgment hereafter to be quoted, nor anyone purporting to represent such governmental entity, formally or informally, intervened in the suit or was implead as a party.

The relief granted by the trial court at conclusion of the non jury trial was judgment that plaintiff Randolph was a member of the Fulbright Grazing Association, Inc. for twelve months following incorporation and that he recover “. . . his one-eighth proportionate share of the increase in value of the land owned by the Fulbright Grazing Association, Inc., from the date of its purchase, . . . which amount totals $5,563.00, together with interest . and all costs of suit, . . .”.

“It is further ORDERED that of this recovery, the amount of $4,059.15 is to be paid by plaintiff to the Farmers Home Administration, United States Department of Agriculture, at its Clarksville, Texas office, in order to pay off the balance due and owing on a promissory note executed by plaintiff in 1969.” No injunctive relief was granted. The dissimilarity in the relief sought by the written pleadings and the relief granted is apparent.

Appellant Fulbright Grazing Association, Inc. briefed seven points of error, but only points No. 3 and No. 7 are of ultimate concern, they are:

“APPELLANT’S POINT OF ERROR NO. 3: The trial court erred in rendering judgment in favor of L. R. Randolph against Fulbright Grazing Association, Inc., in the amount of $5,563.00 because there is no competent evidence of probative value to support such judgment.”
“APPELLANT’S POINT OF ERROR NO. 7: The trial court erred in rendering judgment in favor of L. R. Randolph against the Fulbright Grazing Association, Inc., in the amount of $5,563.00 because there were no pleadings to authorize the rendition of such a judgment.”

Appellant Randolph briefed two points of error, but only the first is material, it is:

“FIRST POINT OF ERROR : The trial court ered in finding that appellant Randolph was entitled to a one-eighth proportionate share of the increase in the value of the land owned by the grazing association from the date of its purchase based on a 12% increase in value, which totaled $5,563.00.”

The charter is not in evidence but the parties to the appeal agree that Fulbright Grazing Association, Inc., is a nonprofit corporation organized in 1968 for the purpose of owning land for the pasturage of members’ cattle. Such corporations are authorized only by the Texas Non-Profit Corporation Act, Tex.Rev.Civ.Stat.Ann. art. 1396 — 1.01 et seq. and are governed by the Acts’ provisions. Corporations of this character are permitted by Tex.Rev.Civ.Stat. Ann. art. 1644c to borrow money from the United States and its agencies. At the time this litigation was instituted, the Fulbright Grazing Association, Inc. had borrowed slightly more than $410,000.00 from the Farmers Home Administration, an agency of the United States, and was making repayment in periodic installments. Also, at such time the association had contracted to sell its land for $800,450.00.

It is undisputed that appellant Randolph was issued a certificate of membership shortly after the association was formed and that his membership in the association had not been terminated by any express procedure for membersip termination provided by the association’s bylaws. The question of membership will be noticed in subsequent discussion but for the purpose of determining the merits of the association points of errors No. 3 and No. 7 and Randolph’s first point, it will be assumed that Randolph had been and was a member of the association at all times material to this lawsuit.

Fulbright Grazing Association, Inc., as are all corporations of similar character, was prohibited by law from paying a dividend, or distributing any of its income to members except in payment for services rendered. Article 1396-2.24. The cited statute also provides that upon dissolution and final liquidation an association will make distribution of its assets in accordance with Article 1396 — 6.01 and 1396 — 6.02 or other applicable provisions of the Act. There is no pleading or proof that the corporate association was dissolved or in process of dissolution or that sale of association land constituted a de facto dissolution. To the contrary, the record shows the association to be a viable enterprise. Corporate assets are vested in the associations and are subject to its control and disposition. Article 1396-2.02. The association’s accumulated assets are corporate property and can become the property of members only in accordance with the law regulating nonprofit corporations, in this instance, only at dissolution and by a plan consistent with the statutes regulating distribution. Under such circumstances, pleading and proof do not support the trial court’s judgment awarding Randolph a recovery of a share of the association’s assets. The association points No. 3 and No. 7, and Randolph’s first point, are sustained.

In argument under other points the association contends that Randolph was not an association member as a matter of law, while Randolph urges a diametrically opposed conclusion, that he is a member as a matter of law. Whether Randolph was a member or not is immaterial because, as previously discussed, a member could have no cause of action to recover an individual interest in the association’s assets prior to dissolution of the corporation. Error alleged under other points is also immaterial as, under the established facts, the proper judgment would have been that Randolph take nothing.

Tex. Rules of Civil Procedure 434 requires this court to render the judgment that the trial court should have rendered. Accordingly, the judgment of the trial court is reversed and judgment is rendered that Randolph take nothing by his suit. The costs in the trial court and of this appeal will be taxed equally against Randolph and the corporate association. The posture assumed by the parties in the trial court, as well as on appeal, makes an equal division of the costs equitable.


author: TUNKS, Chief Justice.

text:
    PORT TERMINAL RAILROAD ASSOCIATION, Appellant, v. Lawrence INGE, Jr., Appellee.
    No. 1181.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 18, 1975.
    Rehearing Denied July 9, 1975.

      William H. Tenison, Jr., Thomas L. Schubert, Andrews, Kurth, Campbell & Jones, Houston, for appellant.
    Tom R. Letbetter, George Payne, Garrett & Letbetter, Houston, for appellee.
   TUNKS, Chief Justice.

The appellee, Lawrence Inge, Jr., sustained personal injuries while working as an engineer for the appellant, Port Terminal Railroad Association. Inge filed suit against his employer under the provisions of the Federal Employers’ Liability Act for damages caused by his injuries. The jury returned a verdict finding facts which established liability of the defendant and found the plaintiff’s damages to be in the amount of $282,746. Of this sum were $200,000, found to represent the plaintiff’s lost future earning capacity, and $17,500, found to represent reasonable compensation for past and future medical expenses. The court reduced the jury’s finding as to medical expenses to $15,000, the amount of that element of damage pleaded by the plaintiff, and rendered judgment for plaintiff on the verdict as so adjusted. The defendant filed original and amended motions for new trial. After the amended motion was overruled, defendant timely perfected its appeal.

The appellant has presented only two points of error. The first point complains of the jury’s consideration of testimony of future inflationary trends in determining plaintiff’s lost future earning capacity. The second point complains that the jury's finding of $200,000 in lost future earning capacity is grossly excessive. Both of these points of error are overruled.

The plaintiff was forty-three years old at the time of trial. The medical testimony established that in the accident he received an injury to his neck causing compression of the nerve roots at the fifth, sixth and seventh cervical disc levels. At the time of the trial he had undergone two operations and he was going to require another one. The medical testimony was that he was permanently disabled from performing the work that he had been doing or any other work that required any substantial physical activity. The salary for his former job was, at the time of the trial, in excess of $15,000 a year.

The plaintiff presented the testimony of Dr. Marshall Metze, a psychologist specializing in vocational capabilities. He had tested the plaintiff at length to determine his work capability. The witness testified that the plaintiffs disabilities were such that he could not obtain and retain any ordinary employment. He finally concluded that the best possibility for the plaintiff to earn any income at all was as a self-employed gunsmith, at which he could earn about $300 per month.

The plaintiff then presented the testimony of Mr. Lee Williams, an economist. He testified that during the past thirty years wages generally had increased at a rate of 5V2% a year. The wages of railroad workers had increased at an annual rate of 5.8%. He projected that the plaintiff’s earnings from the railroad for the remainder of his work life expectancy until he reached age 65, considering a future inflationary factor of 5% per year, would be $661,500. He then discounted this figure at a rate of 6% per annum to a present value of $340,544. By using the same formula he figured the present value of the plaintiff’s future earnings at $300 per month to be $75,237. Thus, the present value of the plaintiff’s loss of future earning capacity was calculated to be $265,307.

The defendant did not object to the admission of any of the testimony of Dr. Metze or Mr. Williams. No grounds stated in defendant’s amended motion for new trial sought a new trial because of the receipt of such testimony. In fact, appellant’s relevant point of error here does not contend that the trial court committed reversible error in the admission of that testimony. That point states that “[a] new trial should be granted because it is improper, under the law, for the jury to take into account future inflationary trends in determining lost future earning capacity.” The prayer in appellant’s brief does not ask that we reverse the judgment of the trial court because of any error, but rather states that a new trial should be granted so that the case can be tried in accordance with correct principles of federal law concerning the determination of lost future earning capacity.” The appellant states that this Court should grant a new trial upon a ground upon which a new trial was not sought in the trial court. In fact, the appellant asks that this Court grant a new trial because of the trial court’s admission of evidence without contending that the trial court committed reversible error in admitting that evidence. This Court does not have jurisdiction to order a new trial where the trial court has committed no reversible error in its judgment. City of Houston v. Blackbird, 394 S.W.2d 159 (Tex.Sup.1965).

We have jurisdiction to reverse a trial court’s judgment and to remand for another trial only where the trial court committed error in the trial before it and where the proper procedure is taken as a predicate for appellate review of such error. There are at least two reasons why the trial court’s admission of evidence as to inflationary trends is not subject to our review. First, the defendant did not object to such admission. T & L Lease Service, Inc. v. Biddle, 500 S.W.2d 186 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ). Second, the error, if any, in such admission is not germane to any ground of defendant’s amended motion for new trial. Texas Rules of Civil Procedure, rule 418(b).

The unusual position taken by the appellant in this Court results from the fact that the United States Court of Appeals for the Fifth Circuit sitting en banc, on March 21, 1975, handed down its opinion in Johnson v. Penrod Drilling Company, 510 F.2d 234, holding that possible future inflationary trends are not properly considered in finding loss of future earning capacity. In so holding that Court overruled two of its former cases, Petition of M/V Elaine Jones, 480 F.2d 11 (5th Cir. 1971), and Cunningham v. Bay Drilling Company, 421 F.2d 1398 (5th Cir. 1970), which held that such inflationary trends were properly to be considered. The holding in Penrod was pronounced after this case had been tried in the trial court. Appellant argues that because of this sequence in the Fifth Circuit’s pronouncement of the law, it was excused from objecting to the testimony as to inflationary trends when offered and from setting out such objection in its amended motion for new trial. Its argument is that waiver is a conscious surrender of a known right, that it could not have known of its right to exclude the testimony because that right was not then in existence, and that it has not, therefore, waived its right to complain of a judgment based on such evidence. We reject that argument. The defendant not only waived an objection to the testimony by not stating any objection, but also waived any right to complain of it on appeal by neither objecting when the evidence was offered nor seeking a new trial, in its motion for new trial, because of its admission.

The Fifth Circuit’s opinion in Penrod may well have changed the rule as to the admissibility of evidence in an F.E.L.A. case tried in a Texas state court, but it did not change the Texas Rules of Civil Procedure as to the steps necessary to be taken in order to preserve questions as to the admissibility of evidence for appellate review. Furthermore, the federal rules in this regard are substantially the same as the Texas rules. See Fed.Rules Evid. Rule 103, 28 U.S.C.A. and the Advisory Committee’s Notes thereunder.

As to appellant’s contention, in its second point of error, that the trial court’s judgment based on the jury’s finding of loss of future earning capacity is excessive, we hold that the evidence, as briefly summarized above, clearly supports the judgment, even without considering the evidence as to inflation. The trial court acted well within its discretion in denying a remittitur.

Plaintiff’s petition at paragraph V alleges that from loss of earnings in the past, loss of earning capacity in the future, past and future physical and mental pain and suffering, and past and future physical impairment he “. . . has suffered damages in the sum of Four Hundred Twenty-Five Thousand and NO/100 Dollars ($425,000.00), for which amount Lawrence Inge, Jr., here now sues.”

Paragraph VI of plaintiff’s petition includes the following allegation: “By reason of his injuries, Lawrence Inge, Jr., sues for past and future medical expenses in the approximate sum of Fifteen Thousand and NO/100 Dollars ($15,000.00).”

Also in paragraph VI is plaintiff’s final prayer wherein he asks judgment against the defendants “. . . for his damages in the sum of Four Hundred Forty Thousand and NO/100 Dollars ($440,000.00).

The jury by its verdict found that the plaintiff had incurred past medical expenses in the amount of $6,000 and that he would incur future medical expenses in the amount of $11,500. The plaintiff filed a motion for judgment to which was attached a form for the judgment to be rendered for the full amount of the jury’s verdict, including $17,500 for past and future medical expenses. The trial court, however, rendered judgment for an amount $2,500 less than the jury’s verdict. The judgment recites that the court reduced the jury’s $17,-500 finding as to past and future medical expenses to $15,000 and refused to grant the plaintiff leave to file a trial amendment.

The appellee has presented cross-points in which he contends that the trial court erred in not rendering judgment for the entire $17,500 in medical expenses found by the jury. Those cross-points are overruled. The plaintiff alleged a specific amount as representing his damages for loss of earnings, pain, and physical impairment. Then he finally asked for judgment for a specific amount which was $15,000' more than his alleged damages from loss of earnings, pain, and physical impairment. Thus, the trial court was correct in considering his obligation of $15,000 in medical expenses as limiting his recovery therefor, despite his use of the word approximate as to that amount.

In another cross-point appellee contends that the trial court erred in refusing his request for leave to file a trial amendment alleging his medical expenses to be $17,500. That cross-point, too, is overruled. The medical testimony was that plaintiff would need a future operation which would cost $2,500. He would also require treatment for the rest of his life which would cost $300 a year. His life expectancy was twenty-six years. His annual treatment would cost a total of $7,800 without taking into account a discount in arriving at its present value. For this reason the trial court was justified in refusing to allow the requested trial amendment.

By other cross-points appellee requests that we assess a penalty against appellant on the contention that this appeal was maintained for delay only and was not in good faith. Those cross-points are overruled.

Affirmed.


text:
    Tommy O. DEAN, Individually and d/b/a Quality Construction Company, Appellant, v. K-C FUEL COMPANY, Appellee.
    No. 12309.
    Court of Civil Appeals of Texas, Austin.
    June 25, 1975.
    Terrence J. Dunigan, Ronald W. Shortes, Lusk & Shortes, Austin, for appellant.
    M. Lawrence Wells, Richard E. Kammer-man, Kammerman, Yeakel, Hineman & Trickey, Austin (on appeal only), for appel-lee.
   SHANNON, Justice.

Appellant, Tommy 0. Dean, individually and doing business as Quality Construction Company, has invoked the jurisdiction of this Court by filing a writ of error to review the entry of a default judgment for $6,126.65 and attorneys’ fees by the district court of Travis County in favor of appellee, K-C Fuel Co., Inc.

In its reply brief, appellee joins with appellant in requesting this Court to reverse the judgment of the district court.

We will reverse the judgment for the reason that the accounts attached to the appellee’s petition show that the merchandise was sold to Dean-Mus Enterprises, Inc., and not to appellant, Tommy Dean, individually and doing business as Quality Construction Company.

An inspection of appellee’s petition shows that appellee alleged that it sold and delivered 21,803 gallons of diesel fuel to Tommy Dean, individually and doing business as Quality Construction Company, on an open account. Appellee pleaded further that it had made numerous demands upon appellant, but that appellant refused to pay to appellee the amount due. The accounts attached to the petition show that the diesel fuel was sold to “Dean-Mus Enterprises, Inc."

Wherein an obligation alleged in the petition does not conform to the accounts attached to the petition, the accounts attached as exhibits to the petition control rather than the allegations in the petition. Copeland v. Hunt, 434 S.W.2d 156 (Tex.Civ.App.1968, writ ref’d n. r. e.), Starlight Supply Company v. Feris, 462 S.W.2d 608 (Tex.Civ.App.1970, no writ), Hassler v. Texas Gypsum Company, Inc., 525 S.W.2d 53 (Tex.Civ.App.1975).

Upon the face of the record, Tommy Dean, individually and doing business as Quality Construction Company, was not a party to the sale upon open account between appellee and Dean-Mus Enterprises, Inc. As a result, appellee, by complying with Texas Rules of Civil Procedure, rule 185, did not establish a prima facie case against appellant Dean.

The judgment is reversed and the cause is remanded to the district court.


author: McDONALD, Chief Justice.

text:
    George W. KELLEY, Appellant, v. Roy RINKLE, Appellee.
    No. 5453.
    Court of Civil Appeals of Texas, Waco.
    June 12, 1975.
    Rehearing Denied July 17, 1975.

      McMullen & Snyder, Waylon E. McMul-len, Dallas, for appellant.
    Coke & Coke, Robert M. Roller, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Kelley from summary judgment he take nothing in a libel suit.

Plaintiff Kelley sued defendant Rinkle on March 26, 1974, for damages for libel, alleging defendant in “March 1973” filed with Credit Bureau Services a complaint that plaintiff owed defendant $277. on account of medical and dental services rendered by defendant. Plaintiff alleged the information was false, and constituted a libel, and that plaintiff did not owe defendant any money. Plaintiff alleged humiliation, embarrassment and mental anguish to his damage of $5000., and further sought exemplary damages and attorney’s fees.

Defendant by answer plead that plaintiff’s action accrued more than one year prior to filing of suit; and filed counterclaim for the $277. dental bill, plus $1,251.25 allegedly owed defendant by plaintiff in another transaction.

Defendant thereafter moved for partial summary judgment as to plaintiff’s libel suit asserting the alleged tort occurred on March 13,1973, more than one year prior to the filing of plaintiff’s suit (on March 26, 1974). Defendant attached his affidavit, the report to the Credit Bureau Services, and the affidavit of Merle Young an employee of Credit Bureau Services, all to the effect that defendant turned in the plaintiff’s delinquent account in the amount of $277. to Credit Bureau Services on March 13, 1973.

On July 26, 1974, the trial court rendered partial summary judgment that plaintiff take nothing.

On August 21, 1974, plaintiff made motion for new trial attaching an affidavit of James E. Sutton that the records of Credit Bureau Services “indicate that sometime between August 26, 1973, and September 4, 1973, Dr. Rinkle reaffirmed and restated to Credit Bureau Services personnel his allegations with respect to his claim against Mr. Kelley”.

On August 26, 1974, plaintiff made motion to set aside the summary judgment he take nothing on the ground of newly discovered evidence (such being the affidavit of Sutton attached to his motion for new trial).

Defendant filed motion for nonsuit on his counterclaim, and on December 9, 1974, the trial court rendered judgment overruling plaintiff’s motions to set aside order, and for new trial, dismissed defendant’s counterclaim, and decreed plaintiff take nothing against defendant.

Plaintiff appeals on 3 points contending the trial court erred:

1) In granting partial summary judgment for defendant based on a finding plaintiff’s cause of action is barred by limitations.
2) In overruling plaintiff’s motion for new trial and motion to set aside order.
3) In granting final summary judgment for defendant.

Contention 1 asserts the trial court erred in granting partial summary judgment for defendant based on a finding plaintiff’s cause of action was barred by limitations. The record on summary judgment before the trial court at the time partial summary judgment was granted was that defendant furnished the report to the credit bureau on March 13,1973; and that plaintiff filed suit on March 26,1974, more than one year after the report was furnished to the credit bureau by defendant.

Article 5524 Vernon’s Ann.Tex.Civ.St. provides: “There shall be commenced and prosecuted within one year after the cause of action shall have accrued, and not afterward, all actions or suits in courts of the following description: 1 Actions for malicious prosecution or for injuries done to the character or reputation of another by libel or slander * *

The Statute of Limitation begins to run from the time the cause of action accrued. Warnecke v. Broad, 138 Tex. 631, 161 S.W.2d 453. The cause of action here accrued when defendant delivered the report to the credit bureau on March 13, 1973. Thus limitation had run on March 26, 1974, when plaintiff’s cause of action was filed. Bratcher v. Pecos Motors, Inc., Tex.Civ.App., NRE, 408 S.W.2d 722; 42 A.L.R.3d 807, 835.

The partial summary was properly rendered.

Contentions 2 and 3 assert the trial court erred in overruling plaintiff’s motion for new trial, motion to set aside order, and in granting final summary judgment for defendant.

After partial summary judgment was granted, plaintiff filed motion for new trial, and motion to set aside the partial summary judgment, and attached an affidavit of James E. Sutton which states that he is attorney for Credit Bureau Services and “The records of the Bureau reflect that sometime between August 28, 1973, and September 4, 1973, Dr. Rinkle reaffirmed and restated to Credit Bureau Services personnel his allegations with respect to his claim against Mr. Kelley”.

As basis for motion for new trial and motion to set aside judgment plaintiff asserts the affidavit of Sutton is newly discovered evidence, and brings the libel within the period before limitation runs.

Plaintiff has not plead or proved by summary judgment evidence that he would not have discovered the evidence prior to the partial summary judgment if he had exercised diligence. This is required before the court could grant the relief sought. Dorbandt v. Jones, Tex.Civ.App., NRE, 492 S.W.2d 601; Vance v. Obadal, Tex.Civ.App., Er.Ref., 256 S.W.2d 139.

And the affidavit does not show personal knowledge on the part of affiant, but only the content of certain records of the credit bureau, with no attempt to comply with the business records exception to the hearsay rule, Article 3737 VATS. Moreover the records were not attached to the affidavit. Habern v. Commonwealth National Bank of Dallas, Tex.Civ.App., NWH, 479 S.W.2d 99.

Finally the trial court is charged with the duty of considering the record as it appears when the motion for summary judgment is heard. Superior Stationers Corp. v. Berol Corp., Tex.Civ.App., NWH, 483 S.W.2d 857; Mason v. Mid-Continent Supply Co., Tex.Civ.App., NRE, 374 S.W.2d 922.

All plaintiff’s points are overruled.

Affirmed.


author: RAY, Justice.

text:
    Ora Lee WILLIAMS, Appellant, v. Hubert HOLMAN et ux., Appellees.
    No. 8304.
    Court of Civil Appeals of Texas, Texarkana.
    July 1, 1975.

      Fred L. Nix, Longview, for appellant.
    Phenix & Freeman, Henderson, for appel-lees.
   RAY, Justice.

This is a venue case. Ora Lee Williams, appellant (plaintiff) brought suit against appellees (defendants) Hubert Holman and wife, Wilma Holman, seeking money damages for personal injuries which appellant received when the rear steps to the house which appellant was renting from appellees collapsed, causing appellant to fall. The house is located in Gregg County. The trial court sustained the plea of privilege in favor of the Holmans and ordered the case transferred to the District Court of Rusk County.

Appellant submits only one point of error for our consideration, which is as follows:

“The District Court erred in sustaining Appellees’ Plea of Privilege when Plaintiff’s pleadings and uncontroverted testimony show an act or omission of negligence occuring (sic) in the County in which suit was brought.”

The only testimony offered at the plea of privilege hearing was that of the appellant. She stated that appellees promised and assured her that the steps would be repaired. There is no written lease or contract involved in this case.

Appellant, in order to maintain her suit in Gregg County, had the burden to plead and prove a prima facie case of negligence under exception 9a of Article 1995, Tex.Rev.Civ.Stat.Ann. which would entitle her to a trial in the county where the act or omission of negligence occurred. Baker v. Brown, 428 S.W.2d 145 (Tex.Civ.App., Amarillo 1968, no writ).

In order for appellant to have sustained her burden of proof to come within exception 9a, it was necessary for her to prove by a preponderance of the evidence:

1. That a contract or agreement existed between the landlord and the tenant which imposed a duty upon the landlord to repair the premises;
2. That the landlord negligently breached his duty to keep the premises in repair in the county where the suit was filed; and
8. That such negligence was a proximate cause of plaintiff’s injuries.
4. That plaintiff was damaged as a result of her injuries.

Whether appellant was contributorily negligent or not, is not an element to be considered in determining venue. 60 Tex. Jur.2d, Venue, Secs. 200 and 217. Further, contributory negligence is no longer an absolute bar to recovery as it once was. Article 2212a, Tex.Rev.Civ.Stat.Ann. (see Article 5236, Tex.Rev.Civ.Stat.Ann. et seq., for rights of landlords and tenants.)

Texas had adopted as its rule of law the Restatement of the Law, Torts 2d, Sec. 357 (1965). Harvey v. Seale, 362 S.W.2d 310 (Tex.1962). Sec. 357 provides of the following:

“Where Lessor Contracts to Repair
A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if
(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and
(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and
(c) the lessor fails to exercise reasonable care to perform his contract.”

Section 357, supra, is an exception to the general rules of nonliability of the lessor stated in Secs. 355 and 356 of the Restatement of the Law, Torts 2d. It is pointed out in the comment to Sec. 357, that, “The reasons which justify the exception, and which have led the American Law Institute to approve a minority position, rest upon a combination of the following considerations:

1. The lessor’s contractual undertaking, for consideration, to repair the premises or to keep them in repair. The rule stated in this Section therefore has no application where the lessor does not contract to repair, but merely reserves the privilege to enter and make repairs if he sees fit to do so. Likewise the rule has no application where there is no contractual obligation, but merely a gratuitous promise to repair, made after the lessee has entered into possession. The contract need not, however, be a covenant or other term of the lease, and it is sufficient if it is made by the lessor, as such, after possession is transferred.”

The question of whether or not there was consideration for the agreement by the landlord to repair the steps, is material to whether there was in fact a contract. Perez v. Raybaud, 76 Tex. 191, 13 S.W. 177 (1890), Mark v. Belrose Corporation, 367 S.W.2d 368 (Tex.Civ.App., Waco 1963, no writ).

Since the only evidence in this case was the testimony of an interested witness, the appellant, such testimony, though un-contradicted, only presented issues of fact to be determined by the trier of facts, in this case, the trial judge. The trial court had the prerogative to believe or not to believe the testimony of the appellant. Pope v. Beauchamp, 110 Tex. 271, 219 S.W. 447 (Tex.1920).

Appellant testified that she had agreed to pay $14.00 per week as rent for the use and occupancy of the house where she fell. The pertinent testimony relative to whether or not there was a contract by appellees to repair the steps is as follows:

“Q. And they did promise and assure you that the steps would be repaired before you ever rented the house. Is this right?
A. They did.
Q. Did you have any contact with the Holmans after you rented the house?
A. Yes, sir.
Q. What was the contact?
A. They came over and they said that they had been so busy they hadn’t been over there to fix the house. But she assured me, her and her husband, that he would get over and fix the house.
Q. Were the steps ever repaired?
A. No, sir.”

When appellees’ counsel asked appellant about the condition of the steps, the appellant responded as follows:

“A. I didn’t know they was rotten as bad as they was, but I knew that they were dan-you know what I mean. I knew that they wasn’t good steps. And he promised me, Mr. Holman and his wife, assured me that they would be fixed that week.
Q. All right. They promised you after you moved in?
A. No, sir, they promised me when I was renting the house—they would be fixed that week. They told me to go ahead and move on in and they would be fixed.”

Appellant moved into the house on June 6, 1974. The steps collapsed under appellant on August 8, 1974.

Whether there was consideration for appellees’ agreement to repair the steps, was a fact question. From the evidence, we cannot say as a matter of law that consideration existed for appellees’ promise to repair the steps, if the trial court in fact believed that appellees had made such a promise. The evidence does not establish as a matter of law that appellees contracted to undertake the repair of the steps for a consideration. The burden of proof was upon appellant to establish by a preponderance of the evidence that appellees had contracted, for a consideration, to repair the premises as distinguished from a gratuitous promise to repair or a reservation of the privilege to enter upon the premises and make repairs as the landlord might see fit to do.

The appellant failed in her burden of proof to establish her right to trial in Gregg County. The judgment of the trial court transferring the cause to Rusk County is affirmed.


author: BARROW, Chief Justice.

text:
    FRIO CANYON TELEPHONE COMPANY, Appellant, v. The CITY OF LEAKEY et al., Appellees.
    No. 15415.
    Court of Civil Appeals of Texas, San Antonio.
    June 25, 1975.
    Jerold L. Schmidt, Dallas, for appellant.
    Clemens, Weiss, Spencer & Welmaker, George H. Spencer, San Antonio, Kessler, Nichols & Harris, Uvalde, for appellees.
   BARROW, Chief Justice.

This is a telephone-rate case. Company has duly perfected an appeal from the dismissal of its suit to enjoin City from enforcing the 1973 ordinance which fixed telephone rates in the City of Leakey. The sole question presented is whether appellant-Company had exhausted its administrative remedies before it brought this action against appellee-City and its City Council. The trial court concluded that the Company had not done so and sustained City’s plea in abatement.

Company for many years has owned and operated a telephone exchange system rendering service under a franchise granted by City. It concedes that the power to regulate rates is conferred on City by Article 1119 and Article 1175, subd. 12, and as more particularly defined in Article 1124. Company is a corporation with three officers and stockholders, to-wit: R. F. Bindock, his wife, Mrs. Bindock, and their son, Bruce Bindock. In June of 1974, Bruce Bindock appeared before the monthly meeting of the City Council of Leakey and verbally requested a rate increase. No formal action has been taken on this request although it was discussed at the City Council meetings in July, August and October. On September 4, and again on September 19, representatives of the City requested that City be furnished a certified financial statement and operating statement of the Company so that it could evaluate the need for a rate increase. These documents have never been furnished.

On October 7, 1974, Company made a written request for a rate increase which was supported by exhibits prepared by Mr. Joe Nall, a rate consultant employed by Company. No action was taken on the request at this meeting, but after the meeting, the City employed Mr. Jack Hopper as its rate consultant. Mr. Hopper examined the exhibits prepared by Mr. Nall and, at his direction, City’s attorney wrote the Company on October 18, and requested certain information so that Mr. Nall’s report could be substantiated. In the meantime, Company filed this suit on October 14,1974, although no service was had on members of the City Council until in early December. Company has never furnished the information requested in the October 18 letter. Mrs. Bindock advised the City Secretary shortly after receipt of the letter that Company was checking to see if it had to furnish this information and that City would be notified of Company’s decision. No reply was made by Company to the October 18 request other than an unrelated offer on October 23 to permit City representatives to examine Company’s books during regular office hours.

The trial court found that the information requested by the City was reasonably necessary for City to determine the necessity for a rate increase and that such information could have been furnished at a reasonable cost by Company. The court concluded that Company failed to exhaust its administrative remedies by presenting information as reasonably required by City.

Company does not question its obligation to furnish City with sufficient information so that City may intelligently exercise its legislative function of fixing proper rates. See: General Telephone Co. of S.W. v. City of Garland, 509 S.W.2d 927 (Tex.Civ.App.— Dallas 1974, writ ref’d n. r. e.); Schenker v. City of San Antonio, 369 S.W.2d 626 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.). It urges, however, that sufficient information has been furnished to enable City to act and that its net earnings from this exchange do not justify the expense of providing additional information.

The undisputed evidence establishes that nothing has been furnished other than the exhibits prepared by Company’s consultant from his personal examination of Company’s books. It was not unreasonable in this situation for City to request that information be supplied from which it could substantiate the exhibits prepared by Mr. Nall. City was not required to accept, without any verification or substantiation, the conclusion of the company’s rate consultant. Nor can it be said that City made an unreasonable request for information upon which it could determine a proper rate. In fact, nothing has been furnished to the City other than the verbal requests of Company’s officer and the unsupported exhibits of Company’s rate consultant.

The trial court did not err in sustaining City’s plea in abatement and dismissing the action upon Company’s refusal to furnish the information requested by the City.

The judgment is affirmed.

      . All statutory references are to Vernon’s Tex.Rev.Civ.Stat.Ann.

      . Mrs. Bindock was Secretary-Treasurer of Company and authorized to make this statement.


author: PER CURIAM.

text:
    Reynaldo Antonio MARTINEZ et al., Appellants, v. Lile EULER, Appellee.
    No. 1001.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 19, 1975.
    Don L. Easton, McAllen, for appellants.
    E. G. Henrichson, Henrichson & Henrich-son, Edinburg, for appellee.
   OPINION

PER CURIAM.

This cause is before the Court on two motions: Appellants’ Amended Motion to Extend Time for Filing Record on the grounds that the court reporter, due to her workload, has been unable to prepare the statement of facts; and Appellee’s Motion to Dismiss for Failure to Properly File Appeal Bond.

From the facts contained in both motions it appears that the trial court announced its judgment in this cause from the bench on or about January 20, 1975. After that day, appellee states, she submitted to the appellants on two different occasions, copies of a proposed final judgment, to all of which appellants voiced objections. Appellee states that the third and final proposed judgment, which was submitted to the Court and signed on March 17, 1975 as a final judgment, met the earlier objections of appellants. Appellants were furnished a copy of the final judgment which contained a notice of appeal. There was no motion for new trial filed.

The appeal bond was not filed by appellants until May 7, 1975. Appellants seek to excuse their failure to file the bond within 30 days after the rendition of the final judgment (as required by Rule 356, Texas Rules of Civil Procedure) by showing that the District Clerk of Hidalgo County, Texas (wherein this cause originated), did not, pursuant to Rule 306d, T.R.C.P., notify the appellants that a final judgment was entered in the cause until April 22, 1975. Appellants state that the testimony of both the district clerk and a deputy district clerk was that the judgment in the cause was misfiled and not recovered until April 22, 1975. Appellants then filed their appeal bond on May 7, 1975, and requested the district clerk to prepare the transcript and the court reporter to prepare the statement of facts.

Rule 363, T.R.C.P., provides that an appeal is perfected when the notice of appeal is given and the bond or affidavit in lieu thereof has been filed. Rule 356, T.R. C.P., provides that the appeal bond “shall” be filed with the clerk within 30 days after rendition of judgment or order overruling motion for new trial. The time limits imposed by Rule 356 are mandatory and jurisdictional. Failure to comply with these rules results in the appeal not being perfected. This Court does not acquire any jurisdiction over this case except to dismiss the appeal. Glidden Company v. Aetna Casualty and Surety Company, 155 Tex. 591, 291 S.W.2d 315 (1956); Flowers v. Muse, 427 S.W.2d 727 (Tex.Civ.App.—San Antonio 1968, err. ref’d); Walker v. S & T Truck Lines, Inc., 409 S.W.2d 942 (Tex.Civ.App.—Corpus Christi 1966, err. ref’d).

Appellants argue that the failure of the district clerk to send the postcard notice has an effect on their duty to file an appeal bond and thereby gives them more than the 30 days allowed by Rule 356. Rule 356 states that “the (appeal) bond shall be filed with the Clerk within 30 days after rendition of judgment or order overruling motion for new trial” and not within 30 days after notice to the appellants of the order appealed from. Rule 306d further provides: “Failure (by the clerk) to comply with the provisions of this rule shall not affect the finality of the judgment or order.” Thus, if the quoted provisions of Rule 356 are mandatory and jurisdictional, as we hold they are, then the fact that the appeal bond was filed some 51 days after the final judgment was rendered gives this Court no other jurisdiction over this cause than to dismiss the appeal. See Cattle Land Oil Co. v. Willis Drilling Company, Inc., 509 S.W.2d 383 (Tex.Civ.App.—Corpus Christi 1974, no writ).

The amended motion for extension of time is denied. Motion to dismiss the appeal is granted. Appeal dismissed,


author: PRESLAR, Chief Justice.

text:
    FARAH MANUFACTURING COMPANY, INC., Appellant, v. CONTINENTAL AIRLINES, INC. and Braniff Airways, Incorporated, Appellees.
    No. 6419.
    Court of Civil Appeals of Texas, El Paso.
    June 18, 1975.
    Rehearing Denied July 16, 1975.

      Edwards, Belk, Hunter & Kerr, Frank H. Hunter, El Paso, for appellant.
    Grambling, Mounce, Deffebach, Sims, Hardie & Galatzan, Sam Sparks, El Paso, for appellees.
   OPINION

PRESLAR, Chief Justice.

This is a suit by a shipper against the initiating carrier and the connecting carrier for loss of a shipment of air freight. The trial court granted the defendant-carriers’ motion for summary judgment because the plaintiff-shipper had not filed its claim within the time provided by the air freight tariffs. We are of the opinion that the summary judgment should be reversed.

Appellant Farah delivered to Appellee Continental Airlines at El Paso, Texas, a shipment of slacks for delivery to Bamber-gers in Newark, New Jersey. Appellee Braniff was a connecting carrier. When the shipment reached New Jersey it was hijacked — stolen. The theft was made known to Appellees Continental and Bran-iff soon after it occurred but neither ever informed Bambergers, the consignee, or Farah, the shipper, of the loss. There were numerous other shipments from Farah to Bambergers, and through correspondence regarding these shipments and their invoices, it was discovered that this particular shipment had not been received by the consignee. Farah then filed its written claim with Appellees. This was 341 days after the date of shipment, and the tariff required the claim be filed within 270 days.

When Farah presented its shipment to Continental, it was issued a rapid air bill which contained a provision that it was subject to the governing tariffs in effect on that date. Tariff rule 60 provided that, except for overcharges, all claims must be made in writing to the originating or delivering carrier within 270 days after the date of acceptance of a shipment, and Rule 62 provided that the carrier would not be liable unless Rule 60 had been complied with. Appellees pled this failure to timely file and the trial court in granting the summary judgment sustained that defense. In that the Court erred.

The affidavits and their attached exhibits show that Appellees had knowledge of the loss of the shipment soon after such loss occurred, that they had in their possession the addresses of the consignee and the shipper, and that they did not notify either the consignee or the shipper of the loss. It is also established that neither the consignee nor the shipper knew of the loss from any other source prior to the time that the shipper actually filed its claim. The Appellant-shipper relies on this lack of knowledge of the loss on its part and on the failure of the Appellees to notify it of the loss. It also contends that the fact that the carriers had full knowledge of the loss excuses the filing of a claim.

This being an interstate shipment, Federal law controls. The latest expression of applicable Federal law which our research reveals is found in the case of In re Penn Central Transportation Company, 351 F.Supp. 1348 (E.D.Pa.1972), wherein the Court said:

“The petitioner’s brief, and the cases and authorities cited therein, 13 Am.Juris.2d Carriers, § 332, pp. 316 — 817, § 434, pp. 909-10; Alabama GSR Company v. McKenzie, 139 Ga. 410, 77 S.E. 647 (1913); Merchants and Miners Trans. Co. v. Branch, 282 F. 494 (4th Cir. 1922), and American Fruit Growers v. Pacific Electric Railway Co., 72 Cal.App. 682, 238 P. 105 (1925), convincingly demonstrate that a carrier owes a quasi-fiduciary duty to the shipper, and is required promptly to alert the shipper to the non-deliverability of the goods, * * *.”

Since Appellees breached their duty to promptly alert the Appellant that the shipment could not be delivered — was lost, they are in no position to claim the defense that Appellant did not file its claim in the time allowed. The duty to notify is not absolute, but depends on the facts of the case, and whether we call it a duty, or an act, or failure to act on the part of the carriers, the fact stands out that but for their failure to notify the shipper of the theft of the shipment, the shipper could have timely filed its claim — complied with the tariff.

Tariffs duly filed and approved by the Civil Aeronautics Board become the contract between the shipper and carrier and provisions such as the one here, that notice of any claim for loss shall be given within a specified time, are valid. In construing such provision, the Courts have uniformly held that its purpose is not to permit the carrier to escape liability but to facilitate prompt investigation. Such tariff provisions must be given a reasonable and practical construction adapted to the circumstances of the case under adjudication, and their application is limited to cases falling fairly within this, their object and purpose. 14 Am.Jur.2d, Carriers § 582, p. 102. Such construction has allowed the failure to give notice of a claim within a specified time to be excused because of some act of the carrier. Thus, where a carrier by its own act makes it impossible for a shipper to give notice within the time limited by the contract, the failure to give notice is held not to bar a recovery. Cleveland, C., C. &. St. L. Ry. Co. v. Hayes, 181 Ind. 87, 103 N.E. 839, 104 N.E. 581; Reynolds v. Great Northern Ry. Co., 40 Wash. 163, 82 P. 161; 14 Am.Jur.2d, Carriers § 590, p. 111. In the case before us, the failure of the carriers to notify the shipper that the shipment had been hijacked or stolen prevented the timely filing of the claim by the shipper. We hold that such failure on the part of the carriers excused the late filing of the shipper’s claim and precluded the carriers’ defense of their liability under the aforementioned Rules 60 and 62.

We are also of the opinion that because the carriers had full knowledge of the loss, a written claim was not required. This case falls within the holding of Hopper Paper Co. v. Baltimore & O. R. Co., 178 F.2d 179 (7th Cir. 1949), cert. denied, 339 U.S. 943, 70 S.Ct. 797, 94 L.Ed. 1359. It was there held that the failure of the shipper to file a written claim did not preclude recovery in view of the fact that the shipper had actual notice of the loss. Appellees cite East Texas Motor Freight Lines v. United States of America, 239 F.2d 417 (5th Cir. 1956), to the contrary, as controlling. That case is distinguishable from Hopper, in fact, in its opinion, it specifically distinguishes itself from Hopper. It notes that the carrier in Hopper had full knowledge, while its carrier did not have full knowledge — its information of the loss coming from third parties and being indefinite as to the extent of the damages. In the case before us, as in Hopper, the loss was total, and was known to the proper authorities of the Appellees, because there was a written memo circulated among them soon after the theft of the shipment. Under such state of facts, we think that Hopper clearly applies to the instant case. A claim was filed in the case before us, so all that is involved is the timely filing of it. To uphold a judgment for Appellees, would be to allow the Appel-lees to escape liability by a tariff provision designed to facilitate prompt investigation of a matter of which Appellees had full knowledge.

Both parties filed motions for summary judgment in this case and that of the defendants was granted and that of the plaintiff was overruled. Appellant has a single assignment of error that the Court erred in granting the defendants’ motion. Under such circumstances it is held that the appellate court can act upon the denied motion, “if the point has been properly preserved.” Gulf, Colorado & Santa Fe Railway Company v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958). We hold that Appellant has not properly preserved the error of the trial court in failing to grant its motion for summary judgment and, therefore, the case must be reversed and remanded rather than reversed and rendered. Henderson v. Nitschke, 470 S.W.2d 410 (Tex.Civ.App.—Eastland 1971, writ ref’d n. r. e.).

The judgment of the trial court is reversed and the cause is remanded to the trial court.


text:
    Ramon GARZA et al., Appellants, v. CITY OF LA JOYA, Appellee.
    No. 995.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 26, 1975.

      L. Aron Pena, Pena, McDonald, Prestía & Zipp, Edinburg, for appellants.
    E. G. Henrichson, Edinburg, for appellee.
   OPINION

PER CURIAM.

This cause is before the Court on appellant’s motion for extension of time to file the record in the above styled cause from the 206th District Court of Hidalgo County. The original motion for extension of time was received and filed on May 1, 1975, but the motion that was filed was inadequate as a matter of law, under the rules of civil procedure. It recited none of the jurisdictional facts necessary. It merely recited the style of the case and asked that additional time be granted for the filing of the record. On May 8, 1975, a second motion for extension of time was received. The Clerk of this Court advised the appellant that this motion was also incomplete. On May 22, 1975, the Court, on its own motion, granted leave to amend the motion for extension of time. On June 13, 1975, the Court received a letter from appellant’s counsel stating that it did not appear that any further amendments could be filed; thus leaving this Court with no alternative except to dismiss the appeal.

Appellant’s motion did not name the trial court, the trial judge, nor the trial cause number. There was a request for an extension of time to file the statement of facts and transcript, but there was no affidavit from either the attorney or the court reporter supporting any factual statements in the motion. The motion does not meet the minimum procedural jurisdictional requirements of Rule 386, Texas Rules of Civil Procedure. At this state we do not reach the point or pass on the factual jurisdictional question of “good cause to have existed . . .” Rule 386, T.R.C.P.

The appellant’s motion for extension of time to file the record is denied, and the appeal is dismissed.