author: WALTER, Justice.

text:
    INDUSTRIAL BROADCASTING COMPANY d/b/a Station KIKK et al., Appellants, v. BROADCASTING EQUIPMENT SALES COMPANY, Appellee.
    No. 4907.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 14, 1976.
    Rehearing Denied Nov. 24, 1976.

      Ted Hirtz and Charles C. Crady, III (Chil-dress, Port & Crady), Houston, for appellants.
    Dean Carlton, Dallas, E. N. Bender, Houston, for appellee.
   WALTER, Justice.

Broadcasting Equipment Sales Company recovered a judgment for $147,500 plus $20,000 attorney’s fees against Industrial Broadcasting Company and Leroy J. Gloger on an oral brokerage contract for the sale of radio station KIKK in a nonjury trial. Industrial and Gloger have appealed.

Broadcasting, as the assignee of Sovran, Inc., alleged Sovran had an oral agreement with Industrial to find a purchaser for station KIKK; that if such a purchaser were found it would be paid a commission of 5% of the consideration paid for the station; that it contacted Egmont Sonderling of Sonderling Broadcasting Company as a prospective purchaser; that thereafter Industrial, ignoring the finding and securing of such prospective purchaser by Sovran, entered into a sales agreement with Sonder-ling for the sale of the station for $2,950,-000.00; that Leroy J. Gloger was the owner of all or substantially all of the outstanding common stock of Industrial and after notice of Sovran’s claim Industrial proceeded to liquidate; and, that Gloger became a trustee of the liquidated assets for the benefit of Industrial’s creditors and asked for $50,-000 attorney’s fees.

In their answer Industrial and Gloger alleged the properties sold by them to Son-derling included real estate and neither Broadcasting, Sovran nor its manager and chief executive officer Robert Magruder had a license to sell real estate as required by the Real Estate License Act and that Broadcasting’s suit was for a commission on the sale of real estate and was not in writing and is precluded from recovering by virtue of Section 28 of Article 6573a of V.A.C.S.

Appellants contend there is no evidence and insufficient evidence Sovran procured Sonderling as a buyer for the radio station.

When appellants contend there is no evidence Sovran procured Sonderling as the buyer, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the finding and reject all the evidence contrary to the finding. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

The testimony of Magruder and the documentary evidence constitutes some evidence Sovran was the procuring cause of the sale.

Appellants contend the evidence conclusively establishes Sovran abandoned the commission contract. They contend the brokerage agreement was not in force at the time Sonderling signed its contract on May 24, 1972.

Appellants did not plead abandonment or termination of the contract, but assuming the issues were tried by consent, we hold the testimony of Magruder and other facts in evidence support the finding Sovran did not abandon the commission agreement.

Appellants contend there is no evidence to support the finding the oral brokerage agreement excluded real estate involved in the sale.

In Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584 (1960), the court said:

“Our courts have required a strict compliance with the terms of the Real Estate Dealers License Act if a broker is to use the courts for recovery of his fees or charges for his services. In the case at bar it is undisputed that plaintiff was not a licensed real estate broker. On this phase of the case, therefore, he can only recover by showing that he was not employed to sell any real estate. If there is an issue as to whether or not his employment included the sale of any real estate, then he must secure findings that will relieve him of the requirements of the Act. If only the sale of personal property is involved, the broker is not under the terms of the Act.
Plaintiff’s cause of action was based upon one ground of recovery, to wit: the contract to pay him a commission for procuring a purchaser for the Hall properties. One of the elements- of this ground of recovery, under the facts as they developed upon the trial, was whether or not the terminal leases were a part of such Hall properties. This question presents a fact issue. There being no request for a jury issue on this question, and therefore no jury finding, it was for the trial court to make a finding on this issue, upon proper request. Rule 279, Franki’s Vernon’s Annotated Rules of Civil Procedure .” (Emphasis Added)

The court made the following findings of fact and conclusions of law:

“FINDINGS OF FACT
2. The commission agreement excluded any real estate.
7. Leroy Gloger (and his wife) (‘Gloger’) individually sold real estate, including all real estate alleged by Defendants by way of defense, to Sonderling for $500,000.00.
8. Sovran had no agreement with Glo-ger (or his wife) individually for any commission.”
“CONCLUSIONS OF LAW
2. -The verbal commission agreement between Industrial and Sovran for a 5% ' commission for finding a buyer for Radio Station KIKK was a valid and enforceable agreement.
3. Inasmuch as such agreement did not include real estate, neither Article 6573a nor any other statute precludes the recovery herein.
6.Broadcasting, as assignee of Sovran, is entitled to a judgment against Industrial and Gloger for $149,500.00 being 5% of the $2,950,000.00 sales price for Radio Station KIKK and being exclusive of any real estate, together with interest thereon since January 23, 1973.”

Magruder was asked the following questions and he gave the following answers:

“Q And ‘The property’ is the next item.
A Property gives the details of the radio station, including how it came to be, how it grew to its present standing in the market, something about personnel, something about its operation; so with this, a buyer can visualize, after seeing it, exactly what kind of radio station it is.
Q Now, you will notice that one of the items in this spec sheet which you sent to Mr. Gloger and which I believe you later sent out to prospective purchasers, did you not .
Yes, I did.
. at the bottom of that page 2 it states, and I quote, ‘Not included in the asset sale, but available for purchase are 6¼ acres at the tower site and an office building housing KIKK-AM studios. The property has been appraised at $275,000; is available for sale for $250,000. The office building currently grosses $2600 monthly income.’ Where did you obtain that information?
From Mr. Gloger. <4
Where did you obtain the information that it is not included in the asset sale? G?
Mr. Gloger stipulated that as part of the deal.
That is what he told you? <y
That is right. <
Q That you were not to handle the real estate?
A That is right.”

Magruder admitted in his original petition he asked for a commission of $172,500, which was a commission on the amount of the sale to Sonderling including the real estate. He also admitted testifying in his deposition that it was his understanding he would receive 5% commission on the total gross price of whatever changed hands in connection with the sale. Plaintiff filed an amended petition and reduced its claim for a commission to $147,500.00, and Magruder testified differently at the trial and asserted he never intended to assert a commission for the sale of real estate.

An admission against interest in an abandoned pleading may be used in evidence against the pleader, but it is not conclusive. Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (1956). A party may be impeached by showing statements made by him which are contradictory or inconsistent with his testimony given in the pending case. Texas Law of Evidence, McCormick and Ray, par. 689, page 534.

In Teairl v. Gover, 257 S.W.2d 782 (Tex.Civ.App.-Austin 1953, err. dism.), the court said:

“In Stroble v. Tearl, supra [148 Tex. 146, 221 S.W.2d 556], the oral contract between the broker and the owner, i.e., the commission contract, related partly to realty and partly to personalty and not being divisible was held unenforceable because not in writing.
This case is entirely different. The commission contract dealt only with personalty. It cannot be defeated because, perhaps, real estate transactions entered into the trade finally consummated between the owners and the buyer.”

Whether real estate was included in the commission contract was a fact question which the court has found adverse to appellants on conflicting evidence. We hold there is some evidence to support the court’s findings and conclusions.

We find no merit in appellants’ contention there is no evidence the assets of Industrial, including the proceeds from the sale, were distributed to Gloger.

Gloger testified he and Sonderling agreed Sonderling would take over this law suit and any financial loss resulting therefrom would not be his, and that Industrial Broadcasting Company was liquidated and he as sole stockholder received “whatever there was to receive”.

We find no merit in appellants’ contention there is no evidence to support the finding that $20,000 is a proper amount for reasonable and necessary attorney’s fees.

Attorney Dean Carlton, whose qualifications were stipulated, outlined some of the specific work he had performed including preparation and trial of the case. He testified in his opinion an attorney’s fee of from twenty to thirty thousand would be proper.

We have considered the entire record and find no merit in appellants’ factually insufficient points. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We have considered all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Stanley V. RUSH, Appellant, v. SPIN-IN-MARKET, INC., Appellee.
    No. 7828.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 14, 1976.

      Maurice L. Bresenhan, Jr., Houston, fpr appellant.
    James N. Hull, Houston, for appellee.
   PER CURIAM.

The appeal is from an order granting a temporary injunction, the order having been entered on January 23, 1976. The transcript was timely filed on February 11, 1976; but the court reporter was unable to prepare the record on time; but, finally, on August 18,1976, the statement of facts was filed.

On the same day, August 18, 1976, our clerk duly notified the parties that the appellate record was complete and that the cause was set for submission and oral argument on October 21, 1976. Appellant’s counsel acknowledged receipt of such notice by a letter of August 20,1976, advising that he would present oral argument for the appellant.

Thus the brief of the appellant was due to be filed in this court on or before September 17, 1976, unless for “good cause shown” the time for the filing of such brief was extended by this court. Tex.R.Civ.P. 414. No brief has been filed nor has appellant sought an extension of time within which to file such brief.

On October 7 — two weeks before the date for submission of this cause — appellee filed its motion to dismiss this cause for failure to comply with the rules relating to the filing of briefs. Tex.R.Civ.P. 415.

Subdivision (d) of Tex.R.Civ.P. 385 was rewritten by the Supreme Court in an amendment effective January 1, 1976. Before such amendment, the failure to file a brief in an appeal from an interlocutory injunction order was not ground for dismissal of the appeal. See, e. g., Arrow Chemical Corporation v. Anderson, 386 S.W.2d 309, 312 (Tex.Civ.App.-Dallas 1965, writ ref’d n. r. e.); Teas v. Texas State Board of Examiners in Optometry, 382 S.W.2d 122, 124 (Tex.Civ.App.-Corpus Christi 1964, no writ), and cases therein cited.

However, the newly amended rule governing appeals from interlocutory orders granting or refusing injunctive relief requires the filing of briefs in accordance with the usual rules governing appeals from final judgments unless the appellate court shall otherwise order. We quote the operative language in the margin.

No party sought to advance the submission of this cause and we have entered no order shortening the time for the filing of briefs nor have we entered any order permitting the cause to be submitted without briefs. Consequently, the matter of filing of briefs is governed by Tex.R.Civ.P. 414. It is clear that appellant has not complied with the provisions of this rule nor has he shown any excuse for not complying therewith.

Even if the appellant sought leave at this late date to file the brief, the appellee would have less than twenty-five days to reply thereto.

Consequently, as held in Rodriguez v. Flores, 426 S.W.2d 285, 286 (Tex.Civ.App.-San Antonio 1968, no writ), the appellee “would, presumedly at least, suffer consequential injury.” Since the appellant has not filed his brief within the time provided by the rules, and he has alleged no good cause for such failure, it is proper to dismiss the appeal for want of prosecution. Tex.R.Civ.P. 415; Tello v. Hankins, 468 S.W.2d 115 (Tex.Civ.App.-El Paso 1971, no writ).

We have, nevertheless, examined the record and do not find fundamental error apparent on the face thereof. Pena v. Petroleum Casualty Company, 441 S.W.2d 657, 658 (Tex.Civ.App.-Beaumont 1969, no writ).

The appeal is dismissed.

      . Rule 385 (d), as amended and effective at all time material to this cause, reads: “When the appeal is from an order granting or refusing a temporary injunction, . . . the cause may be heard in the Court of Civil Appeals . . . under the rules and statutes pertaining to . the filing of briefs that are applicable to appeals from final judgments except the court may by order shorten the time for filing briefs. . . . ” (emphasis supplied)


author: McCLOUD, Chief Justice.

text:
    Herbert C. CHAMBERS, Appellant, v. James A. CAUTHORN, Appellee.
    No. 4965.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 21, 1976.
    H. Dustin Fillmore, Fillmore, Camp & Lee, Fort Worth, for appellant.
    Edward C. Small and Dennis R. Reese, Small, Craig, Werkenthin, Austin, for ap-pellee.
   McCLOUD, Chief Justice.

This is a venue case. Plaintiff, James A. Cauthorn, sued defendant, Herbert C. Chambers, in Val Verde County, alleging defendant had defaulted in the payment of rent under a written lease agreement assigned by plaintiff to defendant. Chambers filed a plea of privilege, that was controverted, alleging he was a resident of Wichita County. The plea of privilege was overruled and defendant, Chambers, has appealed. We reverse and render.

Plaintiff entered into a lease agreement, as lessee, with W. M. Stool, as lessor. The lease was later assigned by plaintiff to defendant who became obligated to discharge all obligations of plaintiff under the lease.

Plaintiff contends that venue is proper under Subdivision 5 of Art. 1995, Tex.Rev. Civ.Stat.Ann., which provides:

“5. Contract in writing. — (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

Plaintiff relies upon the following language found in the lease agreement:

“Until it receives other instructions in writing from Lessor, Lessee shall pay all rentals under this lease by check payable to the order of W. M. Stool and addressed to him in care of the Guarantee Store at Del Rio, Texas.”

The obligation sued upon is the obligation of defendant to pay rent. The question to be decided is whether the contract provides for payment in Val Verde County. The court may take judicial notice that Del Rio is located in Val Verde County. The place of performance, however, may not be established by implication. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (1948).

Defendant’s obligation under the lease agreement is to pay “all rentals . by cheek payable to the order of W. M. Stool and addressed to him in care of the Guarantee Store at Del Rio, Texas.” The lease does not expressly provide that rentals are to be paid at Del Rio, Texas. Only, that the checks are to be “addressed” to Stool at Del Rio, Texas. An agreement to address mail or a “check” to a definite place falls short of an agreement to pay at such place. The lease agreement does not provide for payment of rentals at Del Rio, Texas. Venue is not proper in Val Verde County under Subdivision 5 of Article 1995, Tex.Rev.Civ. Stat.Ann. International Security Life Insurance Company v. Robichau, 490 S.W.2d 871 (Tex.Civ.App.-Beaumont 1973, no writ); Petroleum Engineering & Tool Co. v. Brandon Co., 232 S.W.2d 247 (Tex.Civ.App.-El Paso 1950, no writ); Browne v. Heid Bros., 12 S.W.2d 587 (Tex.Civ.App.-El Paso 1928, no writ); Thomas v. Oil Belt Supply Company, 375 S.W.2d 527 (Tex.Civ.App.-Eastland 1964, no writ); Dyer v. Metallic Building Company, 405 S.W.2d 119 (Tex.Civ.App.-Eastland 1966, no writ).

The case of Texas Gas Products Corporation v. Rowan, 317 S.W.2d 815 (Tex.Civ.App.-Fort Worth 1958, writ dism’d) cited by the parties is not controlling. There the court held that the primary obligation under the written contract was that the payments were to be “delivered” to the payee in Fort Worth, Texas, and the optional mailing provision was subsidiary. The court said the words “or mailed” did no more than recognize an “agency through which the appellants could act in performing its obligation of delivery”. The agreement under consideration does not provide that rental payments are to be made by checks “delivered” to Del Rio, Texas.

Plaintiff relies upon Piper, Stiles & Ladd v. Fidelity & Deposit Company of Maryland, 408 S.W.2d 800 (Tex.Civ.App.-Houston 1966, writ dism’d) which holds that a written agreement requiring a party to “remit” payments “to” a definite place within a county rather than “make” the payments “at” such place satisfies the requirements of Subdivision 5. We do not think that a requirement that payment be sent to a definite place, as opposed to paid at such place, constitutes an obligation to pay at such definite place as required by Subdivision 5. We, therefore, respectfully disagree with the language relied upon by plaintiff in Piper, Stiles & Ladd v. Fidelity & Deposit Company of Maryland, supra.

The order overruling defendant’s plea of privilege is reversed and it is ordered that the cause against defendant be transferred to Wichita County.


author: STEPHENSON, Justice.

text:
    Hester LEONE, Appellant, v. Jasper Thomas LEONE, Appellee.
    No. 7875.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 21, 1976.
    Rehearing Denied Nov. 10, 1976.
    Harold Peterson, Beaumont, for appellant.
    H. S. Long, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a limited appeal in a divorce case with an agreed statement of the case under Tex.R.Civ.P. 378. The parties will be referred to here as they were in the trial court.

Respondent was ordered to pay $1,000 per month for the support of petitioner and the two minor children during the pendency of the suit. No indication was given as to what part was temporary alimony and what part was child support.

The agreed statement shows a hearing was held June 3,1975, and on July 15,1975, a divorce was granted. The final judgment shows the trial court heard the case June 3, 1975, and on July 15, 1975, ordered respondent to pay $280 per month for each child as child support. The final judgment has the recitation that temporary alimony was terminated July 15, 1975, when judgment for divorce was rendered in open court. Such final judgment was signed and entered March 15, 1976.

Even though petitioner agrees in the statement of the case that the divorce was granted July 15,1975, nevertheless she contends here that the trial court erred in not rendering judgment for her to recover $3,520 which is the difference between the $560 paid by respondent from July 15,1975, and March 15, 1976, and $1,000 per month as originally ordered by the trial court.

Argument is made by petitioner that the temporary order was not countermanded or revoked until the final judgment was entered March 15, 1976. We disagree.

The record before us shows the court granted this divorce in open court July 15, 1975, and delivered the attorneys as “Property Division” which showed the child support was set at $280 for child per month. The court later on December 1, 1975, wrote the attorneys a letter showing that respondent had been ordered to pay $1,000 a month to July 15, the date the judgment was rendered, and thereafter $560 a month child support. The final judgment entered March 15, 1976, reaffirms the action of the trial court as to temporary alimony and child support.

We have come to the conclusion that the record before us shows the order as to alimony pendente lite was revoked as of July 15,1975, when the divorce was granted, and respondent was ordered to begin making child support payment.

Petitioner cites Ex Parte Gnesoulis, 525 S.W.2d 205 (Tex.Civ.App.-Houston [14th Dist.] 1975, no writ). That case is a contempt proceeding in which the husband was found by the trial court to be in contempt for failing to make payments under the temporary orders of the trial court and for breach of a restraining order enjoining the parties from harming one another. That trial court did write a letter to the parties in reference to rendering a judgment; however, there was no announcement in open court. The Court of Civil Appeals in Ex Parte Gnesoulis, supra, at page 209 contains this statement:

“We hold that as a matter of law the letter written by the trial judge on February 28,1975, did not constitute a rendition of judgment in this case. The rendition of a judgment is effected when the trial court in open court declares the decision of the law upon the matters at issue. It is distinguishable from the entry of judgment which is a purely ministerial act by which the judgment is made of record and preserved. As has been often stated, the rendition of judgment may be oral as well as written. A judgment can be rendered orally in open court, or by written memorandum signed by the judge and delivered to the clerk for filing, signifying to the clerk in his official capacity and for his official guidance the sentence of law pronounced by the trial judge. Comet Aluminum Company v. Dibrell, 450 S.W.2d 56 (Tex.Sup.1970); Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912).”

On the other hand, the respondent in the case before us makes the statement that he takes no position that the final judgment was not rendered July 15, 1976. We have concluded the case before this court and Ex Parte Gnesoulis, supra, are clearly distinguishable.

Judgment AFFIRMED.

DIES, C. J., not participating.


author: McKAY, Justice.

text:
    LOGGINS CONSTRUCTION COMPANY, Appellant, v. STEPHEN F. AUSTIN STATE UNIVERSITY BOARD OF REGENTS, Appellee.
    No. 947.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 28, 1976.
    Rehearing Denied Dec. 2, 1976.

      John R. Brumbelow, Tyler, for appellant.
    John Reeves, Asst. Atty. Gen., Austin, for appellee.
   McKAY, Justice.

Appellant, Loggins Construction Company (Loggins), brought this suit against Stephen F. Austin State University Board of Regents, appellee (the University), to recover money withheld by the University as liquidated damages on a construction contract for delay in completion for extra work done, and for interest and attorney’s fees. The trial was before the court and the court rendered a take nothing judgment against Loggins, who brings this appeal.

Loggins and the University entered into a written contract for Loggins to build a stadium for the University for a total sum of $1,518,000 with a completion date of September 1, 1972. The contract was later modified in writing, dated April 10,1973, to provide that in consideration of the release of $24,500.00 previously withheld by the University from Loggins as liquidated damages, and because of the desire of both parties “to effect more desirable working conditions and to settle disputed dates,” the completion date was extended to February 23, 1973, and that “liquidated damages” in the amount of $250.00 per day shall be paid by Loggins or withheld by the University from monies due, for each consecutive calendar day after February 23, 1973. The University withheld $39,500 as liquidated damages from the final payment.

Stipulations of fact in the record reveal that (1) change orders approved by the University and its architect were in the amount of $111,127.00; (2) the revised contract amount, including change orders, was the sum of $1,629,127.00; (3) the University paid $1,589,627.00 to Loggins which was the total sum paid for work under the contract; (4) the intention of the University in signing the modified agreement, with relation to the “liquidated damages” provision, was to induce Loggins to complete the stadium as soon as possible by withholding $250.00 per day after February 23, 1973, “thereby causing pecuniary loss from money due under the contract”; and (5) actual damage, if any, caused by Loggins’ failure to complete the work on February 23, 1973, accruing to the University after that date “does not exceed $6,500.00.”

There are no findings of fact or conclusions of law and none were requested. The University has not filed a brief on appeal.

Loggins’ first point of error complains that the trial court erred in failing to render judgment for Loggins for $39,500.00 because such sum was a penalty rather than valid liquidated damages and was, therefore, wrongfully withheld by the University from the final payment. Loggins contends that it was the intention of both parties at the time the modified or new contract was executed to set a penalty of $250.00 per day for each day beyond the completion date of February 23, 1973, and that the figure of $250.00 was chosen not as an estimation of any damages to be suffered by the University, but as an arbitrary amount designed only to induce prompt completion.

The modified contract provided in paragraph II that:

“It is further agreed that liquidated damages in the amount of TWO HUNDRED FIFTY AND NO/100 ($250.00) DOLLARS per day shall be paid by LOGGINS CONSTRUCTION COMPANY or withheld by STEPHEN F. AUSTIN STATE UNIVERSITY from monies due, for each consecutive calendar day following the completion date of the 23rd day of February, 1973.”

The stipulations of the parties provided in paragraph (7) that:

“The intention of STEPHEN F. AUSTIN STATE UNIVERSITY at the time of the signing of the modified agreement in relation to paragraph II, page 1, reading as follows, to-wit: (as quoted above) was to induce LOGGINS CONSTRUCTION COMPANY to complete the stadium as soon as possible by the withholding of TWO HUNDRED FIFTY ($250.00) DOLLARS per day, thereby causing pecuniary loss from money due under the contract.”

The question presented is whether the contractual provision relating to liquidated damages is to be construed as an agreement fixing the damages recoverable for breach of the agreement or whether same is to be regarded as a penalty.

Chief Justice Hickman, in Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484, 486 (1952), set out the rule applicable in a case like the instant one:

“The right of competent parties to make their own bargains is not unlimited. The universal rule for measuring damages for the breach of a contract is just compensation for the loss or damage actually sustained. By the operation of that rule a party generally should be awarded neither less nor more than his actual damages. A party has no right to have a court enforce a stipulation which violates the principle underlying that rule. In those cases in which courts enforce stipulations of the parties as a measure of damages for the breach of covenants, the principle of just compensation is not abandoned and another principle substituted therefor. What courts really do in those cases is to permit the parties to estimate in advance the amount of damages, provided they adhere to the principle of just compensation. Restatement of Contracts, Sec. 339, accurately expresses the rule as follows:
‘(1) An agreement, made in advance of breach fixing the damages therefor, is not enforceable as a contract and does not affect the damages recoverable for the breach, unless
‘(a) the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach, and ‘(b) the harm that is caused by the breach is one that is incapable or very difficult of accurate estimation.’
“This comment on subsection (1) follows: ⅞. Contracts are frequently made in which performance of very different degrees of importance and value are promised and one large sum of money is made payable as damages for any breach whatever. Since such a contract promises the same reparation for the breach of a trivial or comparatively unimportant stipulation as for the breach of the most important one or of the whole contract, it is obvious that the parties have not adhered to the rule of just compensation. In this matter neither the intention of the parties nor their expression of intention is the governing consideration. The payment promised may be a penalty, though described expressly as liquidated damages, and vice versa.’ ”

The rule was expressed in another way by Judge Bateman in Brace v. Dante, 466 S.W.2d 66, 69, 70 (Tex.Civ.App.-Dallas 1971, no writ):

“The general rule is that if such a provision is for a penalty to secure performance of the contract, it is unenforceable and the party claiming a breach is required to prove his actual damages. On the other hand, if the provision was actually intended by the parties to constitute an estimate by them of the damages which would be actually sustained by Dante in case of breach by Brace, and the amount so fixed is a reasonable estimate of just compensation for the harm to be caused by the breach, and the amount of damages is incapable or quite difficult of determination, it is enforceable. The parties’ expression of intention in this respect is not controlling in making this determination.”

Stewart v. Basey, supra, states the rule in Texas and has been followed by many cases: Ashton v. Bennett, 503 S.W.2d 392, 394 (Tex.Civ.App.-Waco 1973, writ ref’d n.r.e.); Brace v. Dante, supra; Roberts v. Dehn, 416 S.W.2d 851, 854 (Tex.Civ.App.-Dallas 1967, no writ); Walter E. Heller Co. v. Allen, 412 S.W.2d 712, 719 (Tex.Civ.App.-Corpus Christi 1967, writ ref’d n.r.e.); Abramson v. Rashti, 373 S.W.2d 699, 700 (Tex.Civ.App.-Fort Worth 1963, writ ref’d n.r.e.); Christi, Michell and Mitchell Co. v. Selz, 313 S.W.2d 352, 354 (Tex.Civ.App.-Fort Worth 1958, writ dism’d); Schepps v. American District Telegraph Co. of Texas, 286 S.W.2d 684, 690 (Tex.Civ.App.-Dallas 1955, no writ).

Applying these established principles of law to the record before us we conclude that the provision of the contract and the modification thereof relating to liquidated damages must be held to be, as a matter of law, a penalty and, therefore, not enforceable. Both the original contract and the modified version provided for the payment by Loggins or the retention by the University of $250.00 per day for each calendar day beyond the date of completion. Paragraph II of the modified agreement referred to the amount as “liquidated damages”; however, paragraph III of the same instrument names the amount as “the aforementioned penalties.” Moreover, the stipulations of fact state that it was the intention of the University to induce Log-gins “to complete the stadium as soon as possible” by withholding $250.00 per day “thereby causing pecuniary loss from money due under the contract.”

Under the record it does not appear that the provision was actually intended by the parties to constitute an estimate or forecast by them of the damages which would be actually sustained by the University in case of a breach by Loggins. By their stipulation and modified agreement they agree it was a penalty, the purpose of which was to punish Loggins monetarily for failure to complete the stadium on time. The University attempted to prove actual damages but the record reflects that there is little, if any, evidence of probative value of any actual monetary damage, and, if there was any damage, the amount of same. Regardless of the intention of the parties, it does not appear that the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach. The stipulations state that actual damages, “if any”, suffered by the University did not exceed $6,500.00; moreover, on April 10, 1973, the date of the modified agreement, the new completion date was fixed as of February 23, 1973, and by calculation there was approximately $11,500.00 due as a penalty under the modified contract at that time. We find that the so-called stipulated damages, although uncertain and not capable of accurate estimation, were not reasonable.

Loggins’ second point of error complains that the trial court failed to award recovery of $1,695.58 as interest for late payments by the University, and Loggins’ third point of error maintains the trial court erred in not awarding to Loggins $3,986.00 for extra work done by Loggins. Since there are no findings of fact and conclusions of law, we must presume every fact issue and such implied findings as were necessary were found by the trial court in support of the judgment rendered. Morris v. Texas Elks Crippled Children’s Hospital, Inc., 525 S.W.2d 874, 881 (Tex.Civ.App.-El Paso 1975, writ ref’d n.r.e.); Washington v. Law, 519 S.W.2d 953, 954 (Tex.Civ.App.-Houston [14th Dist.] 1975, writ ref’d n.r.e.).

The judgment of the trial court is reversed, and judgment is here rendered that Loggins recover $39,500.00 from the University.


author: EVANS, Justice.

text:
    Beverly Ann STEPHENS, Appellant, v. Ernest Emory STEPHENS, III, Appellee.
    No. 16749.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 28, 1976.
    Rehearing Denied Nov. 24, 1976.

      Richie, Greenberg & Brackman, Roger B. Greenberg, Houston, for appellant.
    Gallman, Bakke, Glover & Chism, J. Roger Chism, Houston, for appellee.
   EVANS, Justice.

This is a contempt proceeding arising out of appellee’s failure to meet child support obligations imposed under a divorce decree.

The decree of divorce, dated January 24, 1975, required appellee to make child support payments for the parties’ three minor children as follows: $75.00 per month for Sean Stephens; $100.00 for Guy Stephens, and $150.00 per month for Stephanie Stephens, until each of such children reached' 18 years of age. The divorce decree also approved the parties’ property settlement agreement under which the homestead was set aside to appellant, subject to an equity in the maximum sum of $8,000.00, which was to be paid to appellee upon the sale of the homestead.

On October 28, 1975, appellee filed a motion to modify the support provisions of the divorce decree, and in response, appellant sought to have appellee ordered to pay the sum of $1,712.50, which, she alleged, was the amount he was then in arrears in accrued child support payments. After a hearing on these matters on January 26, 1976, the court reduced the aggregate sum of appellee’s support obligations from $325.00 per month to $200.00 per month and found that appellee was in arrears in child support payments in the total amount of $1,650.00. The court, however, did not provide in its judgment for the recovery of said sum by appellant from the appellee.

On January 28, 1976, appellant filed the subject motion for contempt, asserting that appellee had been determined to be delinquent in his child support payments in the sum of $1,650.00, under the prior order of the court, and that he should be found in contempt of that order. Appellee responded to this motion, claiming that he was without funds or assets with which to satisfy the amounts owing to appellant, except to the extent of his equity in the homestead which had been awarded to him under the divorce decree. After hearing of this motion on March 1, 1976, the court entered the order in question which provides:

“The Court further finds, without a motion being filed by any affected party, and without the required thirty (30) days notice, that payment of the accrued child support arrearages due and owing Relator should be modified in the following respect: the One Thousand Six Hundred Fifty and No/100 ($1,650.00) Dollars in accrued child support arrearages should be offset by the same amount against Relator’s Eight Thousand and No/100 ($8,000.00) Dollars equity in a home at 11802 Moonmist Drive, Houston, Harris County, Texas, rather than having said accrued amount paid in cash to Movant for the support of the children as previously ordered by this Court.
“It is therefore ORDERED, ADJUDGED and DECREED that Relator is in contempt of this Court’s Order of January 26, 1976, for failure to pay accrued child support arrearages in the amount of One Thousand Six Hundred Fifty and No/100 ($1,650.00) Dollars.
“It is further ORDERED, ADJUDGED and DECREED that Relator pay a reasonable attorney’s fee in the amount of One Hundred and Fifty and No/100 ($150.00) Dollars, plus all costs of court to Richie, Greenberg & Brackman, 1200 South Post Oak, Suite 520, Houston, Texas.
“It is further ORDERED, ADJUDGED and DECREED, without motion having been filed or thirty (30) days notice given, that the accrued child support arrearages be modified in the following respect: the One Thousand Six Hundred Fifty and No/100 ($1,650.00) Dollars in accrued child support arrearages are hereby offset by the same amount against Relator’s Eight Thousand and No/100 ($8,000.00) Dollars equity in the following described property, rather than having said accrued amount paid in cash to Movant for the support of the children as previously ordered by this Court: . . . .”

The record reflects appellee’s willingness to have his equity in the homestead credited against the amount of his arrearage in child support payments, and he makes no complaint with respect to the court’s contempt order. However, appellant contends that the contempt order constitutes an unauthorized modification of the court’s prior orders relating to her entitlement to child support payments.

Section 14.08, Texas Family Code, as amended effective September 1, 1975, provides that an order providing for child support may be modified upon motion, after thirty days’ notice, but only as to obligations accruing subsequent to the motion to modify. It is appellant’s contention that the court’s contempt order was entered without compliance with the requirements set forth in this section.

This court is without jurisdiction to review a contempt order other than by an original proceeding for habeas corpus. Tims v. Tims, 204 S.W.2d 995 (Tex.Civ.App.-Amarillo 1947, writ ref’d); see also Doss v. Doss, 521 S.W.2d 709, 711 (Tex.Civ.App.-Houston [14th] 1975, no writ). It is only to the extent that an order of contempt purports to modify or reform a prior order of the court that this court may exercise its jurisdiction. Martin v. Martin, 519 S.W.2d 900 (Tex.Civ.App.-Houston [1st] 1975, no writ); Seber v. Glass, 258 S.W.2d 122 (Tex.Civ.App.-Fort Worth 1953, no writ).

The contempt order in question does not purport to modify or reform the child support obligations imposed by any prior order of the court; nor does it purport to reduce the amount of the pre-existing ar-rearages as determined by the court’s prior order. The contempt order merely provides for a means of discharging payment of the amount which was found by the court to be the sum of the arrearages. See Garcia v. Garcia, 469 S.W.2d 920, 921 (Tex.Civ.App.-San Antonio 1971, no writ).

Under the provisions of Section 14.-09(c), Texas Family Code, support orders may be enforced either by contempt or by judgment for the amount of the delinquent payments. These optional remedies operate both independently and concurrently. Harrison v. Cox, 524 S.W.2d 387 (Tex.Civ.App.-Fort Worth 1975, writ ref’d n.r.e.); Walker v. Sheaves, 533 S.W.2d 87, 90 (Tex.Civ.App.-San Antonio 1976, writ ref’d n.r.e.).

In a contempt proceeding, the trial court, in its discretion, may designate in its decree certain ways by which the party adjudged to be in contempt is allowed to purge himself of the contempt. The trial court may not, however, arbitrarily decree conditions which if performed by the party in contempt, reduce or abrogate property rights, remedies or benefits of the adverse party under prior orders of the court. To that extent the trial court’s decree would be invalid, and even though nonappealable, such provisions in the decree would not be binding upon the adverse party in subsequent proceedings.

Since the order in the case at bar is nonappealable, the appeal is dismissed for want of jurisdiction.


author: OSBORN, Justice.

text:
    Eugene WILDER, Appellant, v. Louise F. WILDER, Appellee.
    No. 6547.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 3, 1976.
    Guevara & Rebe, P.C., Sal Rebe, Warren M. Pulner, El Paso, for appellant.
    Long & Koehler, Ward L. Koehler, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This case presents the sole question of whether or not a 1963 Florida divorce decree awarding the wife alimony is a final decree so as to be entitled to full faith and credit in a suit brought in Texas to obtain a money judgment for past due and unpaid alimony payments as provided for in the Florida decree. The trial Court gave full faith and credit to the Florida decree and entered a judgment for the amount of the alimony which had not been paid. We affirm.

In 1963, the Appellee obtained a final divorce from the Appellant in the Circuit Court in Broward County, Florida. That decree ordered the Appellant to pay to the Appellee $250.00 per month as periodic alimony. The Appellee filed this suit asserting that the Appellant has not made any payment as required by the Florida divorce decree since July, 1972. The written deposition of the Appellee was filed, and the Appellant, in answer to interrogatories, admitted that no monthly payments had been made since July, 1972. He answered that, insofar as he knew, the divorce decree has never been reversed, vacated, modified or annulled. The Appellee filed a motion asking the trial Court to take judicial notice of the law of the State of Florida to the effect that amounts of alimony in arrears are vested obligations amounting to property rights which cannot be modified, altered or cancelled by the Courts. The trial Court granted the Appellee’s motion for summary judgment, which was based upon the pleadings and evidence as outlined above.

The Appellant attacks the granting of that judgment in one point of error, contending that the foreign judgment is not entitled to full faith and credit because the alimony payments as provided for in the divorce decree are not vested and absolute, but are subject to cancellation or modification by the Florida Court. Appellant contends that until the amount of the past due alimony has been reduced to a judgment in a Florida Court, the Texas Courts may not enter a judgment for any amount claimed to be due.

In Gard v. Gard, 150 Tex. 347, 241 S.W.2d 618 (1951), the Court quoted from the decision in Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1909), and said:

“In the Sistare case, supra, it is said that ‘generally speaking, where a decree is rendered for alimony and is made payable in future instalments, the right to such instalments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the instalments, since * * * “alimony decreed to a wife in a divorce [proceeding] is as much a debt of record, until the decree has been recalled, as any other judgment for money is.” ’ ”

Perhaps the most recent decision by a Texas Court on the issue of giving full faith and credit to a judgment of a sister state for alimony is the opinion by Justice Young in Worrel v. Worrel, 526 S.W.2d 736 (Tex.Civ.App.-Corpus Christi 1975, no writ). After noting that the appellant in that case contended that the appellee was required to convert the past due installments into a Virginia judgment for a sum certain before the foreign judgment would be entitled to full faith and credit, the Court said:

“Appellant would prevail if the fact situation in the case at bar were such that a judgment in Virginia for the ar-rearage became a necessary predicate for relief in Texas. There is, however, another category of foreign alimony awards to which Texas courts must afford full faith and credit. That other category applies when the wife’s right to alimony payments has become absolute and vested under the original alimony decree and the accrued amount is not subject to modification. Quinn v. Quinn, 216 S.W.2d 1001 (Tex.Civ.App.-Fort Worth 1948, writ ref’d n.r.e.); Stout v. Stout, 214 S.W.2d 891 (Tex.Civ.App.-Texarkana writ ref’d n.r.e.). See Dye, Enforcement of Foreign Alimony Decrees in Texas: A Survey and Analysis, 38 Texas L.Rev. (1959).”

Although we have found no Texas case passing upon the finality of a Florida divorce decree awarding alimony, the decisions both from Florida and other jurisdictions are unanimous in holding that past due alimony payments are vested and not subject to cancellation or modification.

The leading case which holds that past due and unpaid installment payments of alimony under a valid judicial decree are vested property rights is Van Loon v. Van Loon, 132 Fla. 535, 182 So. 205 (1938). A similar result was reached in Gottesman v. Gottesman, 202 So.2d 775 (Fla.App.3d Dis. 1967), where the Court said:

“ * * * Defaulted installments of alimony ordered to be paid in a divorce decree constitute vested rights in the wife not subject to subsequent modification. * * * ”

The same result was reached in Hynes v. Hynes, 277 So.2d 557 (Fla.App.3d Dis.1973), where the Court reversed a trial Court order which attempted to cut down or reduce the sums already due and owing, both for alimony and child support.

Courts of other states which have passed upon the issue of the finality of a Florida alimony decree have reached the same results which we reach in this case. See Roberts v. Roberts, 174 Ga. 645, 163 S.E. 735 (1932); Lockman v. Lockman, 220 N.C. 95, 16 S.E.2d 670 (1941); Robison v. Robison, 9 N.J. 288, 88 A.2d 202 (1952); and Moore v. Mackay, 132 N.Y.S.2d 813 (Sup. Ct., Queens County, Part II, 1954). The most recent pronouncement comes from Webb v. Webb, 305 So.2d 567 (La.App., 4th Cir., 1974), where the Court said:

“In Florida, however, accumulated alimony arrearages are not subject to modification. F.S.A. Sec. 61.14; 6 A.L.R.2d 1277, 1285. In Hynes v. Hynes, 277 So.2d 557 (Fla.App.3d Dis.1973) the court reversed a trial court judgment which has remitted part of alimony arrearages. In Gottesman v. Gottesman, 202 So.2d 775 (Fla.App.3d Dis.1967) the court refused to reduce demanded arrearages of over $43,-000.00, observing that ‘[defaulted installments of alimony ordered to be paid in a divorce decree constitute vested rights in the wife not subject to subsequent modification.’
“Since the Florida judgment ordered periodic payment of alimony, and since, accrued alimony installments cannot be modified in Florida, we hold a Florida wife may obtain a money judgment for the arrearages in a Louisiana court which has personal jurisdiction over the husband. The interests of neither party would be served by requiring the wife to reduce her claim for accrued installments to a money judgment in the Florida court which cannot modify defaulted installments or by requiring the husband to go to Florida to present any defenses such as payment, which can be urged in the local forum in which he was cited.”

Having concluded that the payments due under the Florida divorce decree are vested rights not subject to modification or cancellation, we hold that the Florida decree was entitled to full faith and credit and the judgment of the trial Court is affirmed.


author: DUNAGAN, Justice.

text:
    JOY CORPORATION et al., Appellants, v. NOB HILL NORTH PROPERTIES, LTD., et al., Appellees.
    No. 969.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 4, 1976.
    Rehearing Denied Dec. 2, 1976.

      Lee Shipp, Dallas, for appellants.
    Duncan E. Boeckman, H. David Herndon, Dallas, for appellees.
   DUNAGAN, Justice.

Appellees, hereinafter referred to as “Nob Hill,” sued appellants, Joy Corporation, hereinafter sometimes referred to as “Joy” and Jack A. Weaver, substitute trustee, hereinafter sometimes referred to as “trustees,” for permanent injunction and declaratory relief. A nonjury trial resulted in a judgment for appellees permanently enjoining appellants from foreclosing on ap-pellees’ property on the basis of a certain alleged default and declaring that appellees were not in default under certain promissory notes. The appellants have appealed from this judgment.

No findings of fact or conclusions of law were requested or filed.

Nob Hill is two limited California partnerships known as Nob Hill North Properties, LTD. and Nob Hill South Properties, LTD. Nob Hill North Properties, LTD. on March 15,1973, executed a real estate mortgage note to Joy in the amount of Seven Hundred Thirty-Two Thousand Nine Hundred Thirty-Five and No/100 ($732,935.00) Dollars, providing for monthly payments in the amount of Four Thousand Eight Hundred Seventeen and No/100 ($4,817.00) Dollars, beginning April 1, 1973; and Nob Hill South Properties, LTD. on the same date, executed a real estate mortgage note to Joy in the principal amount of One Million Four Hundred Two Thousand Sixty-Five and No/100 ($1,402,065.00) Dollars, providing for monthly payments in the amount of Nine Thousand Two Hundred Fourteen and No/100 ($9,214.00) Dollars, beginning April 1, 1973. Both Nob Hill limited partnerships agreed, in the Deeds of Trust, to pay monthly one-twelfth (¾½) of the estimated amount due for ad valorem taxes, amounting to Three Thousand Five Hundred Eleven and 65/100 ($3,511.65) Dollars, for a total payment on both notes in the amount of Seventeen Thousand Five Hundred Forty-Two and 65/100 ($17,542.65) Dollars.

The notes of Nob Hill to Joy were secured by Deeds of Trust. Nob Hill paid Joy the purchase price partly in cash, including prepaid interest, and the balance of the purchase price was evidenced by wraparound notes and deeds of trust that were inferior to the first mortgage on said apartments. The notes provided for acceleration in the event of default in the timely making of the monthly payments or in the event of default of the terms, covenants and provisions of the deeds of trust. There was no personal liability on the part of Nob Hill as maker of the notes.

Joy, under the Deeds of Trust, had the express right to take over and operate the apartments ten (10) days after Nob Hill’s receipt of notice of default.

Joy claims that the payments due on August and September 1,1973, were not made by Nob Hill to Joy; and, because of the alleged defaults, the trustee posted notices of foreclosure sale of Nob Hill’s property on October 2, 1973.

Nob Hill, on October 1,1973, was granted a temporary restraining order restraining the trustee’s sale on October 2, 1973, and later granted a temporary injunction.

Trial on the petition for permanent injunction began on the 18th day of September 1975, was recessed, and concluded on the 23rd day of September 1975, at which time the trial court took the matter under advisement. Subsequently on December 9, 1975, the trial court entered judgment granting permanent injunction and declaring that Nob Hill was not in default as of September, 1975, and perpetually enjoining Joy and the Trustees from foreclosing the Deeds of Trust by extra-judicial foreclosure, by reason of any alleged default of Nob Hill under the notice or the Deeds of Trust securing said notes, occurring prior to the entry of the temporary injunction on October 18, 1973.

Appellants (defendants below) first attack the actions of the trial court in refusing to consider and rule on their special exceptions to appellees-plaintiffs’ original petition. The special exceptions were filed on October 11, 1973, but no action concerning such exceptions was requested by appellants until 10 or 15 minutes prior to the trial of the case on September 18, 1975, almost two years later. The trial court deemed the exceptions waived due to the inaction on them by appellants. The exeep-tions complain that the appellees-plaintiffs had not alleged sufficient ground for in-junctive relief. Appellants rely on Rule 90, T.R.C.P., which states that if exceptions are not brought to the attention of the trial judge before rendition of judgment, then the same shall be deemed to have been waived. Appellees reply that Rule 90 does not mean that the exceptions cannot be deemed waived by the trial judge at some earlier stage of the proceedings. We agree with appellees’ contention.

While Rule 90, Texas Rules of Civil Procedure, does provide that in nonjury cases special exceptions must be brought to the attention of the judge of the trial court before rendition of judgment or they shall be deemed waived does not prevent said exceptions from being waived earlier. Caldwell v. Kingsbery, 451 S.W.2d 247, 252 (Tex.Civ.App.-Austin 1970, writ ref’d n. r. e.). However, we have examined the special exceptions and have concluded if the court’s failure to pass upon these exceptions was error, it would be harmless under Rule 434, Texas Rules of Civil Procedure. Swinford v. Allied Finance Co. of Casa View, 424 S.W.2d 298, 301 (Tex.Civ.App.-Dallas 1968, writ dism’d); Caldwell v. Kingsbery, supra.

Joy in its points of error 2, 3, 4, 5, 6, 7, 8, 9 and 12 contends that there was “no evidence” and “insufficient evidence” to support the judgment of the trial court, and that such judgment is contrary to the great weight and preponderance of the evidence.

Appellees in their counterpoint contend that the court’s judgment is amply supported by the evidence.

On March 15, 1973, appellant, Joy, conveyed to appellees the real property apartment complex which is the subject matter of this lawsuit. At closing, appellant, Joy, received from appellees cash and notes to-talling $278,492.32, being a $100,000.00 down payment, $162,024.00 prepaid interest for one (1) year, plus additional prepaid interest for April 1, 1974, and five days, amounting to $16,368.30. Two Hundred Nineteen Thousand Ninety-Two and 20/100 ($219,092.20) Dollars of the foregoing consideration at closing was in the form of a note which was fully paid before its due date of April 26, 1973.

In addition to the aforementioned consideration paid at closing, appellees executed two promissory notes totalling $2,135,-000.00, one of which was in the principal amount of $1,402,065.00 and the other in the principal amount of $732,935.00. Each note bore interest at the rate of 7.6% per annum, and the larger note called for a monthly payment of $9,214.00, and the smaller for a monthly payment of $4,817.00, both beginning on or before the 1st day of April, 1973.

On May 7, June 5, and July 5 of 1973, appellant, Joy, received monthly note payments of $17,542.65 each, of which approximately $552.00 per month went to principal, $3,511.65 per month for tax escrow, and the balance to interest. As of August 1, 1973, appellant, Joy, had received as prepaid interest and down payment a total of $320,-586.30.

On August 20, 1973, the then general partner of the appellee limited partnerships received two letters advising that each of the notes were in default in that the August 1,1973, payments on each note had not been received. Eight days later, on August 28, 1973, appellants took possession of the appellees’ property and remained in possession of such property until the entry of the temporary injunction order in this case on October 12, 1973. During the time that appellants were so in possession of appel-lees’ property, appellants collected rental income from appellees’ property in the amount of $47,883.00.

Between August 31,1973, and September 10,1973, appellees were able, and on numerous occasions offered, to cure any default that may have then existed, and requested that appellants advise them of the amount necessary to cure any such default. In spite of these requests, appellants refused to advise appellees of an amount necessary to cure any default.

On September 18, 1973, appellees tendered to appellants two cashiers’ checks to-talling $37,322.50 in order to cure any default that may have then existed.

Appellants posted appellees’ property for foreclosure sale to be held on October 2, 1973, but such sale was stopped by the trial court’s temporary restraining order issued on October 1, 1973. At a subsequent hearing a permanent injunction was granted to appellees from which this appeal resulted.

The trial court, as trier of the facts, is judge of the credibility of the witnesses and of the weight to be given their testimony. The trial court, as trier of the facts, had a right, and apparently exercised it, to reject the testimony of appellant’s witnesses and give credence to that given by the witnesses for appellee. Hayes v. Easter, 437 S.W.2d 652, 654 (Tex.Civ.App.-Texarkana 1968, n. w. h.) and Black v. Shell Oil Company, 397 S.W.2d 877, 882 (Tex.Civ.App.-Texarkana 1965, writ ref’d n. r. e.).

Each of the deeds conveying the property here in question from Joy to the appellee limited partnerships contained the following provision: “The Promissory Note provides for:

“(A) Acceleration of maturity in the event of continuation of default: (i) in payment of any monthly installment on the Promissory Note, or (ii) under the covenants contained in the Deed of Trust securing the Promissory Note, in each instance beyond a period of ten (10) days after (i) the occurrence of any event of default, and (ii) written notice of such default by the holder of the Promissory Note to Grantee.” (Emphasis ours.)

It is unquestioned that Joy’s right to accelerate the maturity of the debt evidenced by the notes was optional. The right to accelerate being optional, it was incumbent upon Joy to do three (3) things in order to accelerate:

(1) Make formal demand upon appel-lees for the payment of the past due installment;
(2) Give an opportunity to make such payment; and
(3) Declare that the entire debt is due, or take some unequivocal action, such as filing suit, which indicates that the entire debt is due. Jernigan v. O’Brien, 303 S.W.2d 515 (Tex.Civ.App.-Austin 1957, n. w. h.); National Debenture Corporation v. Smith, 132 S.W.2d 429 (Tex.Civ.App.-Galveston 1939, dism’d judg. cor.).

On August 15, 1973, Joy wrote two (2) letters to the then general partner of the appellee limited partnerships which stated that the two (2) promissory notes were in default and the August 1, 1973 payment had not been received. The letter further stated that foreclosure proceedings would be instituted immediately as provided for in the Deed of Trust dated March 15, 1973, that appellants exercise their rights on assignment of rents and that no further notice shall be given. In these letters there was no declaration that the entire debt was due nor did these letters constitute unequivocal action indicating that the entire debt was due. Hiller v. Prosper Tex, Inc., 437 S.W.2d 412 (Tex.Civ.App.-Houston 1969, n. w. h.). Such letters were merely the first step of the three required by the Jernigan and National Debenture cases for acceleration.

Being part of the purchase price of the property conveyed by said deeds, the notes and deeds are integral parts of the same transaction and should be read together. In view of this, acceleration can only occur ten (10) days after written notice of default. Therefore, Joy’s letter of August 15, 1973, could not have been an acceleration. Acceleration could only have occurred sometime after August 25, 1973.

“Where the acceleration clause can be exercised only at the mortgagee’s option, the courts have required that the mortgagor be given actual notice for demand of payment and of the exercise of the option to accelerate the entire balance of the debt. Otherwise, the mortgagor could lose his property at a trustee’s sale of which he is unaware by actual notice. Covington v. Burke, 413 S.W.2d 158 (Tex.Civ.App.-Eastland 1967, writ ref’d n. r. e.). The exercise of an option to accelerate the entire balance of a debt is a harsh remedy. The courts in Texas have looked with disfavor upon the exercise of this power, since great inequity may result. It is incumbent on the mortgagee, in order to avail himself of this right of acceleration, to make a clear, positive, and unequivocal declaration in some manner of the exercise thereof, followed by an affirmative action towards enforcing the declared intention. 39 Tex.Jur.2d, § 78, at pages 114-115, Mortgages and Trust Deeds.” Crow v. Heath, 516 S.W.2d 225 (Tex.Civ.App.-Corpus Christi 1974, writ ref’d n. r. e.). (Emphasis ours.)

In the Crow case the court held that posting notice of a trustee’s sale and mailing a copy of such notice does not constitute acceleration.

After appellee (Nob Hill) became aware of appellant Joy’s letter of August 15, 1973, it timely requested Nob Hill to advise them as to the amount due Joy in order to clear any default. Also, George Merten, representing appellees, requested that Nob Hill through its attorney disclose the amount owed Joy. Each of these requests was made by appellee in order to cure any default, which they were willing and able to do in August, 1973. Even though appellee made repeated requests to Joy to ascertain the amount of which they were allegedly in default, so that they could make full payment of said amount, Joy never informed appellee what the exact amount of the default was, that the maturity of the notes had been accelerated, or that the full amounts of the notes were due.

Before the acceleration provision in a note may be resorted to and the whole debt matured, demand must first be made for the late installment due on the debt. Additionally, opportunity must be given to pay the late installment before the acceleration of the entire debt. Stevens v. Bowie National Bank of Bowie, Texas, 517 S.W.2d 686, 689 (Tex.Civ.App.-Fort Worth 1974, n. w. h.); Hiller v. Prosper Tex, Inc., 437 S.W.2d 412, 415 (Tex.Civ.App.-Houston 1st Dist. 1969, n. w. h.); Bischoff v. Rearick, 232 S.W.2d 174, 176 (Tex.Civ.App.-El Paso 1950, writ ref’d n. r. e.); Brown v. Hewitt, 143 S.W.2d 223, 227 (Tex.Civ.App.-Galveston 1940, writ ref’d). This was not done.

Appellant’s contentions that the judgment is not within the scope of the pleadings nor in compliance with Rule 683, Texas Rules of Civil Procedure, are without merit and they are overruled.

There being no findings of fact or conclusions of law requested or filed in this case, in accordance with Rule 296, Texas Rules of Civil Procedure, the trial court’s judgment should be affirmed if it can be upheld on any legal theory that has support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962). Furthermore, in the absence of findings of fact and conclusions of law, the trial court’s judgment, therefore, implies all necessary fact findings in support of the judgment and the assumption is that the trial court found every disputed fact in such a way as to support the judgment. Alexander & Polley Construction, Inc. v. Spain, 477 S.W.2d 301, 303 (Tex.Civ.App.-Tyler 1972, n. w. h.); Irish v. Virdell, 379 S.W.2d 935, 937 (Tex.Civ.App.-Austin 1964, writ ref’d); Weber v. Hesse Envelope Co., 342 S.W.2d 652, 655 (Tex.Civ.App.-Dallas 1960, n. w. h.); and Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950). In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto it is proper to consider only that evidence most favorable to the appellee and to disregard entirely that which is opposed to it or contradictory in its nature. National Military Mutual Life Insurance Co. v. Cross, 379 S.W.2d 96, 98 (Tex.Civ.App.-Corpus Christi 1964, n. w. h.); Renfro Drug Co. v. Lewis, supra.

We have examined the entire record in this case and have concluded that there is sufficient evidence to support the trial court’s findings and judgment and that such findings are not against the great weight and preponderance of the evidence. Each of appellants’ points of error has been considered. They are overruled.

Finding no reversible error the judgment of the trial court is affirmed.


text:
    WALTER E. HELLER & COMPANY, Appellant, v. B. C. & M., INC., et al., Appellees.
    No. 16736.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 4, 1976.
    Rehearing Denied Dec. 9, 1976.

      Robert E. Speed, Houston, for appellant. Paul W. Nimmons, Jr., Houston, for ap-pellee, E. W. Millard, Sr.
    Robert J. Wright, James S. Taylor, Jr., Houston, for appellee H. P. Albrecht.
   EVANS, Justice.

The principal question in this case is whether the trial court properly determined, as a matter of law, that the plaintiff’s claim for stipulated damages under an equipment lease contract was unenforceable as a penalty. We hold that it did not.

The defense of penalty was not specially pleaded by the defendants, but at the close of the plaintiff’s case-in-chief, the trial court granted the defendants’ motion for instructed verdict and entered a take nothing judgment against the plaintiff. The defense of penalty is an affirmative defense which may be waived by the defendant unless specially pleaded. Rule 94, Texas Rules of Civil Procedure; LoBue v. United States Planning Association, 467 S.W.2d 574 (Tex.Civ.App.-Fort Worth 1971, writ dism’d) and authorities cited therein. The defendant’s answer in the case at bar consisted solely of a general denial.

“. . the general denial is strictly a negative plea, putting in issue only those allegations which the plaintiff is required to establish to recover. Hence, it does not open the way for evidence to support propositions which do not negative the plaintiff’s claim, but go to support some independent reason why the plaintiff is barred from recovering, such as matters in avoidance or estoppel, or counterclaims or cross-claims. Assuming proper objection by plaintiff, such evidence is admissible only when those matters are specifically alleged. There is, however, an exception: when the petition anticipates a defense which should have been raised by affirmative plea in the answer, and the petition alleges propositions relied upon to destroy such defense, the defendant by a general denial may put such propositions in issue. A party is not required to plead matters already asserted in his opponent’s pleadings, and since the plaintiff has put such matters in issue, the defendant may rely upon his general denial.” McDonald Texas Civil Practice, Vol. 2, section 7.23.2, pg. 216.

It is the defendants’ contention that the plaintiff’s own pleading and proof raised the issue of penalty, even though the defense was not specially pleaded. The defendants cite Lawler v. Aramco, Inc., 447 S.W.2d 189, 193 (Tex.Civ.App.-Houston (1st) 1969, writ ref’d n. r. e.) wherein it was stated:

Rule 94, Texas Rules of Civil Procedure, requires that the defense of illegality be specially pleaded. Failure to plead illegality of a contract ordinarily constitutes a waiver of the defense. Mabry v. Priester, 161 Tex. 173, 338 S.W.2d 704 (1960); Free-Flow Muffler Co., v. Kliewer, 283 S.W.2d 778 (Tex.Civ.App.,-Texarkana, 1955, error ref., n. r. e.). Where the contract sued on shows illegality on its face, an affirmative pleading to that effect is unnecessary. Niles v. Harris County Fresh Water Supply Dist. No. 1-A, 339 S.W.2d 562 (Tex.Civ.App.,-Waco, 1960, error ref.).

It is not essential that this Court decide whether the defendants’ failure to plead penalty constituted a waiver of the issue, precluding the trial court’s consideration of the defense upon the trial of the case. The plaintiff’s pleading and proof do not establish, as a matter of law, that the plaintiff’s claim was unenforceable as a penalty.

The lease contract in question, dated May 24, 1971, was executed by Atlas Leasing Corp. as lessor and B. C. & M., Inc. as lessee. The face of the lease reflects that the leased equipment was a hydraulic crane, having an initial cost value of $45,000.00. This lease guaranteed by defendants Andrew Benson, E. W. Millard, Sr., and H. P. Albrecht was subsequently assigned to the plaintiff Walter E. Heller & Co. on June 14, 1971. After making the equivalent of seven rental payments, the lessee defaulted and the lessor repossessed the hydraulic crane and disposed of it by sale. The sale proceeds of $22,250.00 were credited against the aggregate amount of the accelerated rental payments, late charges and legal expenses, leaving a claimed deficiency of $31,-870.56, which, together with attorney’s fees and costs, is the amount claimed by the plaintiff in this suit against the lessee and its guarantors.

The lease provided that the lessee agreed to pay for the initial 60 month term of the lease a total rental which was to be computed by multiplying the number of specified rental payments (60) by the amount of each specified rental payment ($915.43). The product of this calculation was a total rental of $54,925.80. The lease provided that if the lessee failed to make a rental payment when due, the lessor at its option and upon notice to the lessee, might declare the entire unpaid rental immediately due and payable, and without terminating the lease, might repossess the leased equipment and either relet the equipment to a third party or sell it to the highest bidder at public or private auction. In the event of such relet-ting or sale, the net proceeds, after deducting the lessor’s expenses, were to be applied to the total unpaid rental and other sums payable by the lessee under the lease. If there should be any deficiency after such application, the lessee remained obligated to the lessor for that sum.

An almost identical equipment lease provision was upheld as an agreement for liquidated damages, rather than a penalty, in Blakeway v. National Credit Corp., 439 S.W.2d 155 (Tex.Civ.App.-Austin 1969, writ ref’d n. r. e.). In Blakeway, the lessee was similarly obligated to pay a total sum of rent for the initial term of the lease, such sum to be computed by multiplying the specified rental installments by the total number of months within the initial lease term. The lessor was also granted the optional right to accelerate maturity of unpaid rental installments in the event of a default in the payment of monthly rental; the right to repossess and sell the leased property at public and private sale; and the right to sue for any deficiency, after making appropriate application of sale proceeds. The court held that , the stipulated damage provision was an appropriate method, within the contemplation of the parties, for compensating the lessor in the event the contract was breached for non-payment of rental, and that the additional lease provisions for the sale of the leased equipment and for application of the net sale proceeds to the lessee’s account, constituted an agreement for the mutual benefit of the parties.

The defendants rely upon three cases to support their contention that the lease contract should be construed as providing for a penalty, rather than liquidated damages: American Lease Plan v. Ben-Kro Corp., 508 S.W.2d 937 (Tex.Civ.App.-Houston (1st) 1974, writ ref’d n. r. e.); Walter E. Heller & Co. v. Allen, 412 S.W.2d 712 (Tex.Civ.App.-Corpus Christi 1967, writ ref’d n. r. e.); and Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952). There are features in each of these cases which distinguish them from the facts in the present case. In the case at bar the lease contract clearly obligates the lessee to pay a total sum of rental for the initial lease term; it expressly authorizes the lessor, at its option, to accelerate maturity of unpaid rental installments in the event of a default in the rental payment; and it provides for a means of disposition of the leased equipment for the mutual benefit of the parties and with appropriate credit to the lessee’s account. See Blakeway v. General Electric Credit Corp., 429 S.W.2d 925, 929 (Tex.Civ.App.-Austin 1968, writ ref’d n. r. e.).

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


author: HALL, Justice.

text:
    Elizabeth M. McCAULEY et al., Appellants, v. Paul ALEXANDER, Individually and as Independent Executor of the Will of Doris Permenter, Deceased, et al., Appellees.
    No. 5619.
    Court of Civil Appeals of Texas, Waco.
    Nov. 4, 1976.
    Rehearing Denied Dec. 9, 1976.
    Thomas L. Cook, Beard & Kultgen, Waco, for appellants.
    John F. Sheehy, Sheehy, Lovelace & May-field, Waco, John L. Hill, Atty. Gen. of Tex., Stephen J. Wilkinson, Asst. Atty. Gen., Austin, for appellees.
   HALL, Justice.

Mrs. Doris Permenter died in June, 1974. The appellants, her brothers and sisters, are her only heirs. They brought this suit for the construction of her will. The defendants are the executor of the will, the Eden Home For The Aged, Inc. (which is the only beneficiary named in the will), and the Attorney General of Texas (because the Eden Home is a charitable institution within the meaning of Article 4412a, Vernon’s Tex.Civ. St.).

The will was typewritten and was signed by the testatrix. It has been probated. Excepting the usual publication and attesting paragraphs, which are not in dispute, the will provides in full as follows:

First. I direct that all my just debts shall be paid.
Second. I give, devise and bequeath unto the Eden Home, in New Braunfels, Texas, being a home sponsored by the South Central Conference of the United Church of Christ, to have and to hold in fee simple interest forever.
Third. I hereby appoint Paul Alexander as independent executor of this my will and direct that no bond shall be required of him and that no other action shall be had in the County Court in relation to the settlement of said estate than the probating and recording of this my will and the return of statutory inventory, appraisement and list of claims of said estate and of all claims due or owing by me at the time of my death.

Pointing to the fact that in the second paragraph of the will there is no designation of property to be given to the Eden Home, the appellants pleaded that the will does not dispose of any of the testatrix’s property and that they are entitled to receive her estate as her heirs. The Eden Home answered that the will “taken as a whole” shows that the testatrix intended to leave it all of her property. Alternatively, the Home alleged that the attorney who drafted the will mistakenly omitted the words “all property of which I may die seized and possessed” at the end of the second paragraph, and that the will should be amended to add this phrase. The Attorney General answered with a general denial.

The trial was non-jury. Extrinsic evidence was adduced. The court construed the will to leave all of the testatrix’s property to the Eden Home. In two points on appeal, the appellants assert the court erred (1) in failing to hold that the will did not dispose of the deceased’s property, and (2) in admitting and considering extrinsic evidence “to supply a bequest of property not provided for in the will.”

The problem here is posed by the omission of property designation in the second paragraph of the will.

Where there is an obvious omission of a word or phrase in a will, shown by reference to the other words or phrases used, then the rules of construction permit the court to transpose words and phrases in the will in order to effectuate the manifest purpose of the testator shown by the language of the will as a whole. Darragh v. Barmore, 242 S.W. 714, 717 (Tex.Com.App., 1922); Neely v. Brogden, 239 S.W. 192, 194 (Tex.Com.App., 1922); Cook v. Worthington, 116 Ark. 328, 173 S.W. 395, 397 (1915).

In the third paragraph of her will, Mrs. Permenter refers to the settlement in County Court of “said estate” and to the return of inventory, appraisement, and list of claims of “said estate.” When considered in context with all of the language of the will, these references to the testatrix’s estate can only relate to the property intended to be devised by her in the second paragraph of the will, and obviously do so. Placed in that paragraph, they cause the will to read, “I give, devise and bequeath [my estate] unto the Eden Home . . ,” or, “I give, devise and bequeath unto the Eden Home . . . , to have and to hold in fee simple forever, [my estate].” When this is done, the will must be construed as leaving the testatrix’s estate to the Eden Home. Manifestly, this is what was intended by the testatrix in this short-form, one-beneficiary will.

Any question raised by the transposition as to how much of the estate was intended to be devised is answered by the presumption (unrebutted, here) that one who makes a will intends by it to dispose of all of his property. Carr v. Rogers, 383 S.W.2d 383, 384 (Tex.Sup., 1964). Additionally, extrinsic proof may be used to explain any uncertainty that might be posed by the use of the word and to show “that the transposition does really bring out the true intent of the testator, and thus render what was before obscure, clear.” Hawes v. Foot, 64 Tex. 22, 27 (1885); Neely v. Brogden, supra. In its admissible parts, the extrinsic evidence in our case shows without dispute and beyond any doubt that Mrs. Permenter intended to leave all of her estate to the Eden Home, and that the omission in question resulted from the inadvertent failure of the lawyer who prepared the will to include the words “all of my property and estate” at the end of the second paragraph.

The appellants assert that in the second paragraph the testatrix “clearly states, T leave nothing to the Eden Home.’ ” We disagree. This construction presumes that the scrivener’s mistake was intended by the testatrix. It is not supported by the record.

Finally, the appellants cite the general rule that extrinsic evidence may not be used to fill blanks or supply omissions in wills regarding property or beneficiaries. A study of the cases shows that this rule is applicable only where the omission is not apparent on the face of the will; or, if the omission is apparent, then where the will is certain and complete without the omitted matter, or where there is absolutely nothing in the will relating to the property or the person that is meant. As we have shown, the will before us does not fall within these classes. “What the courts really mean when they say that parol evidence is not admissible to correct a mistake is that, where the will as it stands is intelligible and is applicable with certainty to some person or thing in existence, such evidence is not competent to show the testator’s intention to designate some other person or thing. In other words, the rule against admitting extrinsic evidence to correct mistakes or supply omissions in wills amounts to no more than a slightly different statement or application of the general rule against varying, contradicting, or adding to the terms of the will. This rule does not impinge upon the principle admitting evidence to show and resolve a latent ambiguity. The fact that such an ambiguity results from an error or omission does not give rise to an exception to the rule admitting extrinsic evidence in such cases, so long as the office and effect of the evidence are to interpret and apply language actually embodied in the will, and not to vary or contradict such language, or to interpolate therein a provision, word, or name of which there is no semblance in the instrument.” 94 A.L.R. 68-69.

The judgment is affirmed.

      . Example cases: Hunt v. White, 24 Tex. 643 (1860); Heidenheimer v. Bauman, 84 Tex. 174, 19 S.W. 382 (1892); Holcomb v. Newton, 226 S.W.2d 670 (Tex.Civ.App.-Texarkana 1950, writ ref'd n. r. e.); Morton v. Calvin, 164 S.W. 420 (Tex.Civ.App.-Texarkana 1914, writ ref.); Cook v. Worthington, 116 Ark. 328, 173 S.W. 395 (1915). Others are found in the annotation at 94 A.L.R. 26, 65.


author: KEITH, Justice.

text:
    In re the ESTATE of May Belle WOOD, Deceased.
    No. 7881.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 28, 1976.
    Rehearing Denied Dec. 9, 1976.

      Morris, Graves & Smith, Orange, for appellant.
    Marlin Thompson, Orange, for appellee.
   KEITH, Justice.

Several parties, alleging that they were the heirs of May Belle Wood, Deceased, instituted suit under the provisions of Tex. Prob.Code Ann. § 48 (Supp.1976-1977) to declare heirship of the deceased. Appellant, alleging that she was the adopted daughter of the deceased under the doctrine of equitable adoption, appeared and pleaded that she was entitled to be declared the heir of the deceased to the exclusion of the other parties.

Trial was to a jury and the first issue submitted was answered adversely to appellant, and the remaining issues in the series, having been submitted conditionally, were not answered. The judgment followed the verdict and appellant has duly perfected her appeal.

Appellant’s mother, Reba Johnson, testified that in December of 1922 she entered into an agreement with the deceased whereby the latter agreed to adopt appellant; that Mrs. Wood’s husband, R. A. Wood, a lawyer, brought some “adoption” papers to her house where they were signed; that appellant lived with other relatives, while being supported by Mrs. Wood, until she was about seven years of age when she went to live with the deceased. She lived with Mrs. Wood until graduation from high school several years later and Mrs. Wood financed her attendance through nursing school. During the time appellant lived with Mrs. Wood she bore the name “Wooley” and was not generally known as the daughter of Mrs. Wood.

Appellant testified, inter alia, that she knew nothing about any agreement to adopt which might have been negotiated between her mother and Mrs. Wood, saying, “ . . . all I knew was that I belonged to Aunt May Belle. I don’t know how it came about or anything about it. I just knew that I was there at her house and she made me to know that I was hers and I was to stay there, but I did not have to take her name.”

Appellant recognizes that in order to prevail she had the burden of proving an agreement on the part of the deceased to adopt the child. In the leading case on the subject, Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972, 974 (Tex.1951), it was said:

“In no case has this Court upheld the adoptive status of a child in the absence of proof of an agreement or contract to adopt.”

See also, Mitchell v. Burleson, 466 S.W.2d 646, 649 (Tex.Civ.App.-Beaumont 1971, writ ref’d n. r. e.), where some of the later cases are cited.

Appellant’s first point is that the trial court erred in sustaining an objection to the testimony of Mrs. Johnson as to the contents of the “adoption papers” which Lawyer Wood prepared and which she testified were signed by her and deceased. However, as pointed out by appellees, most of the testimony which appellant now says was so vital to her case, was introduced before the jury. Thus, Mrs. Johnson testified that while she could not recall the words actually used in 1922, she did recall the general contents of the document, saying:

“Q. * * * Dkl that document say that — and use the word adoption?
“A. Sure.
“Q. It did use it? You remember that word?
“A. Yeah, I remember that because Uncle Richard [Lawyer Wood] said that.”

Elsewhere in the record we find that Mrs. Johnson testified to the jury: (1) “Well, when Aunt May Belle asked me to let her adopt her [appellant], I let her adopt her.” (2) Did you enter into a written agreement with May Belle Wood? “I did.” (3) And approximately when was this written agreement? “[I]t was in 1922, right after Christmas time.” (4) And as between you and May Belle Wood, whose idea was the written agreement? “It was hers.” (5) Who signed it? “I signed it; Bill McDonald signed it. Frankie Wooley signed it.”

Although appellant complains of error in refusing to let Mrs. Johnson testify further concerning the contents of the lost document, there is no showing in the record of what her testimony would have been had she been permitted to testify further.

In the recent case of Swinney v. Winters, 532 S.W.2d 396, 402 (Tex.Civ.App.-San Antonio 1975, writ ref’d n. r. e.), many authorities are collated supporting this holding:

“There is nothing in the record to show what such excluded testimony would have been. Error is not shown in the exclusion of evidence unless the appellant brings before the appellate court a record that shows clearly not only what the evidence would have been if admitted, but also its relevancy; and where an appellant excepts to a court’s ruling excluding testimony of a witness, but does not go further and develop by bill of exceptions what the witness’s answer and testimony would have been, no error on the part of the trial court is demonstrated.”

So it is in the case at bar. Moreover, even if it be conceded that error is presented, which is not the case, having made “a judgment call” after reviewing the entire record, we find no error requiring a reversal of the cause. Gomez Leon v. State, 426 S.W.2d 562, 565 (Tex.1968); Swinney v. Winters, supra (532 S.W.2d at 403, footnote 2), and cases therein cited. Point one is overruled.

Next, appellant claims that the trial court erred in excluding the will of Lawyer Wood, the contention being that it was a material circumstance tending “to show her [appellant’s] status in the household as that of an adoptive daughter rather than grandniece who was merely receiving room and board.” Wood’s will made several specific bequests and left the remainder of his estate to his wife if she survived; but, in the event she did not survive him, he divided his estate into two parcels, one of which went to the lineal heirs of his father, with the other parcel being bequeathed to appellant. Counsel calls our attention to the fact that appellant was not referred to as a “niece” although that term was applied to appellant’s sister who was also named in the will.

We find no merit to the point and it is overruled. Although neither party cites any authority directly in point, there is no contention advanced that Mr. Wood was a party to any agreement to adopt appellant. The will which was excluded was not relevant or material to any issue involved in the case. As counsel for appellees aptly responds: “It is interesting to note that the bequest to appellant from Mr. Wood was contingent, and even then, would have only consisted of a share of the estate to be shared equally with the heirs of testator’s father, hardly a likely bequest to a daughter.” We agree with the observation. The tendered and excluded evidence did not tend to prove any ultimate fact in the cause. Point two is overruled.

In her third point appellant contends that the trial court erred in refusing an addition to the charge on circumstantial evidence which was given. The appellant did not request that the charge of the court be included in the transcript. However, appellees’ brief does contain what counsel represents to be a charge on circumstantial evidence and appellant has not challenged this statement. Consequently, we turn our attention to the rejected addition thereto which is quoted in the margin.

At the outset, we note that the instruction which was included in the charge is that set out in 1 State Bar of Texas, Texas Pattern Jury Charges, PJC 2.06 (1969). Although the Committee revised such volume after the amendment in 1973 of Tex.R. Civ.P. 277, it did not revise its comments with reference to the giving or refusal of such an instruction.

We readily admit that the amendment to Rule 277 liberalized the practice of giving explanatory instructions. See J. Pope and W. Lowerre, “Revised Rule 277-A Better Special Verdict System for Texas”, 27 Sw. L.J. 577, 587 (1973). We are not called upon to choose between the competing authorities mentioned in “Comment” appended to PJC 2.06, supra, because the instruction given is not challenged by either party. However, we find no error in refusing an addition thereto. Pope and Lowerre, supra; Larson v. Ellison, 147 Tex. 465, 217 S.W.2d 420, 421 (1949). Point three is overruled.

Finally, without citation of authority, appellant contends that the negative answer of the jury to Special Issue No. One (footnote 1, supra) “was- against and contrary to the great weight and preponderance of the evidence which established an affirmative answer to said Special Issue.” In our consideration of this point of error, we consider the record as a whole.

We overrule such contention. The evidence adduced upon the trial did no more than raise a fact issue for determination by the jury; it did not establish as a matter of law the existence of an agreement to adopt. Indeed, a careful review of the evidence, reveals that had the jury answered such issue in the affirmative, a serious question of the sufficiency of the evidence to support such an answer would have been presented. Point four is overruled.

The judgment is affirmed.

      . Special Issue No. One: “Do you find from a preponderance of the evidence that about the year 1922 the deceased, May Belle Wood, agreed with Mrs. Reba Wooley Johnson [mother of appellant], that she, May Belle Wood, would adopt Dorothy Wooley Caldwell [appellant] as her daughter? . . . Answer: No.”

      . In arriving at a conclusion of no error, or, alternatively, of harmless error, we will concede, arguendo, that the appellant properly established that the document was a lost instrument.

      . “Circumstantial Evidence. A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by witnesses who saw the act done or heard the words spoken or by documentary evidence. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.”

      . The requested language which would have been added to the instruction on circumstantial evidence quoted in footnote 3 read: “To this end you are instructed that the existence of any agreement to adopt, if any, may be established by action, conduct and admissions of the parties and by other relevant facts and circumstances.”