author: RALEIGH BROWN, Justice.

text:
    M. H. FERRIS et al., Appellants, v. SECURITY SAVINGS & LOAN ASSOCIATION, DICKINSON, Texas, Appellee.
    No. 4900.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 24, 1976.
    Rehearing Denied Dec. 16, 1976.

      Kenneth J. Peden, Childress, Port & Cra-dy, Houston, Kenneth C. Kaye, League City, Elmo M. Johnson, Tramonte & Tra-monte, Galveston, Raymond'M. Hill, Dale Harville, Houston, E. M. Ammons, Texas City, Daniel E. O’Connell, Walter Wright, Houston, for appellants.
    Charles R. Hancock, Hancock & Yelton, Dickinson, Claude T. Allen, Newton B. Schwartz, Rex C. Mounger, Sam L. Ster-rett, Jr., Dave McNeill, Jr., Vinson, Elkins, Searls, Connally & Smith, Houston, Preston Shirley, Mills, Shirley, McMicken & Eckel, Galveston, Charles E. Casteel, Charles R. Dunn and R. Charles Stiles, Wyckoff, Eikenburg, Dunn & Frazier, Houston, Walter S. Fortney and Dennis Swift, Law, Snakard, Brown & Gambill, Fort Worth, for appellee.
   RALEIGH BROWN, Justice.

This case involves claims for debt arising out of construction contracts, financial arrangements pursuant thereto, foreclosure of mechanics’ and materialmen’s liens, and the respective priority of the liens.

Mr. and Mrs. M. H. Ferris and Dr. E. M. Ammons entered into a construction contract with J. L. Stover and L. C. Loper d/b/a Construction Associates on August 16, 1963, to construct certain improvements upon property owned by Ferris and Am-mons. On August 20, 1963, Ferris and Am-mons executed a mechanics’ and material-men’s lien, deed of trust and note in the principal amount of $378,654, plus interest at the rate of 6% per annum to Stover d/b/a Construction Associates. The note was endorsed to League City State Bank by J. L. Stover as collateral for construction money together with the mechanics’ lien contract of August 20,1963. Subsequently, on June 18, 1964, League City State Bank assigned to Security Savings and Loan Association the note together with the collateral security.

After September 1, 1963, Ferris and Am-mons contracted with York Division, Borg-Warner Corporation to furnish air conditioning units for installation in the project being constructed. The units were delivered and on June 3, 1964, York filed a materialmen’s lien.

After default, Security filed suit against Ferris and Ammons, Stover and Loper for the amount due on the promissory note and for foreclosure of the mechanics’ and mate-rialmen’s lien. Security also sued York and others to establish the priority of its lien. Stover and Loper and York filed actions against Ferris and Ammons for amounts due under their respective contracts.

On November 25, 1964, Security was granted a summary judgment. The judgment gave recovery on the notes against Ferris and Ammons, Stover and Loper and held that Security’s lien was prior and superior to all other liens. The court ordered sale of the property owned by Ferris and Ammons to satisfy Security’s money judgment. J. B. Kline, sheriff of Galveston County, on February 2, 1965, sold the property to Security for $295,000. Security conveyed it to Ray Diamond, who transferred it to Newton Schwartz. York appealed the judgment of November 25, 1964. It was held to be interlocutory by the Court of Civil Appeals, Houston (1st Dist.) and the appeal was dismissed for want of jurisdiction. York Corp. v. Security Savings and Loan Association, 391 S.W.2d 830 (Tex.Civ. App. — Houston 1965, no writ).

The trial court then modified its judgment of November 25, 1964, by eliminating the adjudication concerning the priority of liens and on August 17, 1965, severed and rendered final Security’s judgment against Ferris, Ammons, Stover, and Loper. The order dismissed with prejudice the cause of action by Stover and Loper against Security and severed York’s cause of action against Ferris and Ammons. Thereafter, the trial court on September 28, 1965, rendered an interlocutory money judgment in favor of York against Ferris and Ammons and held the liens of York to be valid and ordered foreclosure. On October 22,1965, the court ordered the September 28, 1965, judgment to be severed from other causes in the action and rendered final judgment in favor of York against Ferris and Ammons for the sum of $43,239.33 plus interest at 6% per annum and foreclosure of its materialmen’s lien. An execution issued and the property was sold on March 4,1969, by sheriff’s deed to York.

The trial court entered a final judgment on March 17,1970, and on appeal, the Court of Civil Appeals, Houston (1st Dist.) 485 S.W.2d 327 (writ ref. n. r. e.) reversed the judgment and remanded the cause.

The cause has been retried and either by cross action or third-party actions, others were made parties. Disposition of such parties has been properly made and none of them have appealed.

The only portion of the judgment challenged in this third appeal decrees:

(1) the liens of Security and York are coordinate, of equal dignity and are valid and subsisting first liens on the property;
(2) the lien of Security had a value of $648,422.54 on May 26, 1975, with interest accruing at the rate of 10% per annum; York’s lien had a value of $68,362.38 on May 27, 1975 with interest at the rate of 6% per annum;
(3) the sheriff’s sale to Security pursuant to a November 25, 1964 judgment is void;
(4) the sheriff’s sale to York is void;
(5) Ferris and wife are barred by Art. 5509, Tex.Rev.Civ.Stat, from making any claim of title to and possession of the property;
(6) Ferris and wife have no legal title to and right of possession of the property; legal title and possession are vested in Newton B. Schwartz and Perry D. Davis, effective January 1, 1968;
(7) that Ferris take nothing against parties named Security Savings, League City State Bank, W. G. Hall, Jr., Schwartz and York;
(8) Security does not have a vendor’s lien against the property;
(9) Security and York have joint foreclosure of their liens;
(10) an order of sale issue to the sheriff or constable directing him to sell property and apply proceeds first to cost of receiver and then against judgment of Security and York.

York and Ferris are the only appellants in this appeal. We reverse and render in part and affirm in part.

The three issues primarily determinative of this appeal are:

(1) the priority of liens between York and Security;
(2) the validity of the sheriff’s sales, one to York and one to Security; and
(3) whether Ferris is barred by limitations or the doctrine of res judicata.

PRIORITY OF LIENS

York argues the trial court erred in holding that its lien and Security’s lien were of equal dignity and coordinate. York contends its lien had its inception as a result of the general construction contract and thus was prior in time to Security’s.

The construction contract dated August 16, 1963, provides in part:

“I.
e) The ‘Contract’ shall mean and refer to the following:
1) This agreement
2) The plans and drawings, consisting of 9 pages and specifications entitled ‘CASA DE ORO APARTMENTS’ both prepared by said Architect with Addendum No. 1 dated the 7th day of August, 1963, and copies of all of which said instruments and documents and plans and specifications and addenda have been initialed by the parties hereto, and approved by the permanent, ‘Take-Out’ and interim financing lenders.”
“VII.
Everything hereinabove contained and as contained in the contract documents aside herefrom to the contrary notwithstanding, shall be subject to the following special conditions:
p) The Owner has the right to let other contracts in connection with the work and the Contractor shall properly cooperate with any such other contractors, subject to the requirements set out in Par. 2, Art. 3, Page 3, above.”

Our examination of the plans and drawings, consisting of nine pages and specifications entitled “Casa De Oro Apartments” reflects that there is no requirement for air conditioning or duct work.

The addendum No. 1 dated 7th day of August, 1963, and introduced by York as its Exhibit # 2 provides in part:

“WORK NOT INCLUDED,
a. The following items of work are not included in this contract:
1) Drapes
2) Blinds
3) Landscaping
4) Air Conditioning
5) Kitchen equipment
6) Light fixtures
7) Finish Hardware Items
8) Carpet & Padding”

Sometime after September 1, 1963, York contracted with Ferris and Ammons to furnish air conditioning units for the project. Its materialmen’s lien was recorded June 3, 1964. Security’s lien claim arises from the mechanics’ lien contract and deed of trust executed by Ferris and Ammons on August 20, 1963, and recorded August 21, 1963.

Texas has long followed the rule a subcontractor’s lien relates back to the time of the original contract. Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652 (1895). York, however, is not a subcontractor of the original contractor nor is its obligation one required by the general contract to which the lien may relate back. The trial court held that the air conditioning units furnished by York “are affixed to and are a part of the above described realty and the lien of York Division of Borg-Warner Corporation attached to the realty.” York does not complain of such holding. Security’s lien is then prior to York’s and the trial court erred in holding the liens to be of equal dignity and coordinate. First National Bank in Dallas v. Whirlpool Corporation, 517 S.W.2d 262 (Tex.1974).

Supportive of the holding Security had a superior lien to York is the undisputed fact Security is subrogated, at least, to the unpaid balance of the purchase price of the land. Sanger Bros. v. Ely & Walker Dry Goods Co., 207 S.W. 348 (Tex.Civ.App.— Fort Worth 1918, writ ref.).

The warranty deed conveying the property, upon which the apartment project was to be constructed, to Ferris retained a vendor’s lien. A portion of the money advanced by League City State Bank, assign- or of Security, was used to pay the remaining balance due on the purchase price of the land. Security had a prior lien at least to the extent of that payment. Providence Institution for Savings v. Sims, 441 S.W.2d 516 (Tex.1969). See also Irving Lumber Company v. Alltex Mortgage Company, 468 S.W.2d 341 (Tex.1971).

Security’s cross-point the trial court erred in holding as a matter of law that Security did not have a vendor’s lien and a mechanics’ lien superior to any lien of York is sustained.

THE SHERIFF’S SALES

Security by cross-point contends the trial court erred in holding as a matter of law the sheriff’s sale of February 2,1965, to Security was void. We disagree.

The Court of Civil Appeals, Houston (1st Dist.) in the opinion cited in 485 S.W.2d 327 (writ ref. n. r. e.), considered this argument and disposed of it by saying:

“It appears, therefore, that an interlocutory judgment has no effect on the legal rights of the parties until it becomes final. It is not a judgment upon which legal rights can be predicated aside from the effect it may have on the final judgment to be rendered. The order of sale issued under the summary judgment of November 25, 1964, was void because the judgment was interlocutory and because that judgment was set aside by the amendatory order of August 9, 1965.
The judgment to be entered in foreclosure proceedings is governed by Rule 309, T.R.C.P., which provides:
‘Judgments for the foreclosure of mortgages and other liens shall be that the plaintiff recover his debt, damages and costs, with a foreclosure of the plaintiff’s lien on the property subject thereto, and except in judgments against executors, administrators and guardians, that an order of sale shall issue to any sheriff or any constable within the State of Texas, directing him to seize and sell the same as under execution, in satisfaction of the judgment; and if the property cannot be found, or if the proceeds of such sale be insufficient to satisfy the judgment, then to take the money or any balance thereof remaining unpaid, out of any other property of the defendant, as in case of ordinary executions.’
The summary judgment of November 25,1965, followed the wording of the rule by providing that:
‘An Order of Sale shall issue to the Sheriff or any Constable of the State of Texas directing him to seize and sell the above described property as under execution and satisfaction of this judgment, and if the proceeds of such sale is insufficient to satisfy this judgment, then to take the money or any balance thereof remaining unpaid out of any other property of the defendants
Rule 309, T.R.C.P., contemplates that the order of sale be issued on a final judgment. It should not be construed to authorize its issuance on an interlocutory judgment. We would not ascribe to the legislature which enacted the statute on which the rule was based, or the Supreme Court of Texas in promulgating the rule, the intention to prescribe a procedure by which satisfaction of an interlocutory judgment could be secured without the right to appeal the judgment, and to supersede it pending the appeal, when these rights are provided in the case in which a final judgment is rendered. Rules 356 and 364(c), T.R.C.P.”
Security’s cross-point is overruled.

York’s points of error attacking that portion of the judgment holding the sheriff’s sale of the property on March 4, 1969, to York to be void are overruled.

That portion of the case was tried nonju-ry. The trial court found the sale void in part because York’s attorneys were guilty of fraud in securing the order of sale and having the property sold while assuring the counsel for Security that no such action would be taken and in misleading the court by failing to inform the court that the property at issue had previously been sold under a court order in the same cause of action.

Viewing the evidence in its most favorable light and considering only the evidence and inferences which support the findings as to fraud, we overrule the no evidence points urged by York. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

Having carefully considered the entire record, we find the findings of fraud are not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

York contends the court’s holding that the sale to it was void supported by the fraud findings amounted to a collateral attack by Security on a final judgment, execution and sheriff’s sale and thus, the court’s ruling was erroneous. We disagree.

Security does not attack York’s judgment obtained against Ferris and Ammons. Security specifically pleaded the fraudulent activities of York’s counsel with respect to the sheriff’s sale of March 4, 1969, both toward it and the court. Security sought a declaration that the sale be set aside because of such activities.

We hold such pleadings do not involve a collateral attack on the decrees and judgment of the court. The pleadings directly attack the title held or purportedly held by York by alleging fraud. Johnston v. Stephens, 121 Tex. 374, 49 S.W.2d 431 (1932); McCampbell v. Durst, 73 Tex. 410, 11 S.W. 380 (1889).

The court in Chapman v. Guaranty State Bank, 267 S.W. 690 (Tex.Com.App.1924, jdgmt. adopted) said:

“We recognize the settled rule that in some instances deeds and other instruments evidencing the execution of a judicial sale may be set aside or annulled for fraud without an attack upon the judgment and decrees of the court. This is usually true where the fraud arises in connection with and has relation to the act of making the sale and in carrying out the orders of the court . . .”

The court correctly held the sale of March 4, 1969, to be void.

FERRIS’ ARGUMENTS

Security argues by cross-point the trial court erred in not holding as a matter of law Ferris was barred by the doctrine of res judicata by the final judgment of August 17, 1965, from any further action against it and estopped by that judgment from any further action against Schwartz. We agree.

The order of severance of August 17, 1965, severed and rendered final Security’s cause of action against Ferris, Ammons, Stover and Loper and confirmed its previous summary judgment granted on November 25, 1964. This court in considering the effect of such action held in Craig v. Rio Grande Electric Cooperative, 346 S.W.2d 438 (Tex.Civ.App. — Eastland 1961, writ ref. n. r. e.):

“. . . The effect of the severance was to make the summary judgment in favor of the electric company final and appealable. Sears v. Mund Boilers, Inc., Tex.Civ.App., 328 S.W.2d 199 (Writ Ref.)

There was no compliance with the prescribed procedures necessary to perfect an appeal after the entrance of the August 17, 1965 order. No appeal was perfected until the judgment of March 17, 1970 was entered. As has been stated many times in this state, compliance with the procedural rules necessary to perfect an appeal are mandatory and jurisdictional and compliance cannot be waived. The judgment disposed of the parties and subject matter then before the court. As stated in Snell v. Knowles, 87 S.W.2d 871 (Tex.Civ.App.— Texarkana 1935, writ dism’d):

“. . . The test of finality of a judgment is not controlled by its correctness, but by its character in completeness of disposition of the parties and subject-matter before the court. 3 T.J. 113, § 55.”

There being no appeal perfected as to the November 25, 1964 judgment following the August 17, 1965 severance it became final after the expiration of thirty days from its rendition. Rule 329b(5), T.R.C.P.

Ferris did not appeal the judgment of August 17,1965, nor did Ferris prosecute an appeal in 1972 when the Court of Civil Appeals reversed and remanded. Ferris came back into the lawsuit by filing defendant’s original answer and cross action on June 6, 1973. All matters asserted by Ferris in these pleadings could have been asserted prior to the August 17, 1965 judgment.

The court in Davis v. Biggs, 182 S.W.2d 1017 (Tex.Civ.App. — Austin 1944, writ ref.), stated the applicable rule in such circumstances to be:

“. . . we think, the rule originally laid down in Foster v. Wells, 4 Tex. 101, 104, reannounced in Nichols v. Dibrell, 61 Tex. 539, 541, Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 47 Am.St.Rep. 79, Moore v. Snowball [98 Tex. 16, 81 S.W. 5], supra, and thereafter frequently reiterated, applies in the instant case. That is, that a judgment ‘is not only final as to the matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided.’ ”

See also Barnett v. Maida, 523 S.W.2d 325 (Tex.Civ.App.—Beaumont 1975, writ ref. n. r. e.).

The rule bars Ferris from any further action against Security.

Schwartz as a successor in title of Security, even though not a party to the original litigation, is entitled to rely upon the final judgment of August 17, 1965, to bar any action asserted by Ferris against him.

As stated by the court in Kirby Lumber Corporation v. Southern Lumber Company, 145 Tex. 151, 196 S.W.2d 387 (Tex.1946):

“It appears to be a recognized principle of law that where, in a former suit, an essential issue of fact has been determined and adjudicated, the judgment therein will estop the parties from relitigating the same issue in a subsequent suit between the same parties, even though the subsequent suit is upon a different cause of action. Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526; Stephenson v. Miller-Link Lumber Co., Tex.Com.App., 277 S.W. 1039; Hanrick v. Gurley, 93 Tex. 458, 54 S.W. 347, 55 S.W. 119, 56 S.W. 330. It is also true that the protection of such a decision as well as its restrictions extend not only to the immediate parties to the suit but also to those who stand in privity with them. ‘Privity, in this connection, means the mutual or successive relationship to the same rights of property; that is to say, all persons are privy to a judgment whose succession to the rights of property therein adjudicated are derived through or under one or the other of the parties to the action, and which accrued subsequent to
the commencement of the action.’ Cain v. Balcom, 130 Tex. 497, 109 S.W.2d 1044, 1046; 34 C.J. 973, sec. 1391.”

See also Benson v. Wanda Petroleum Company, 468 S.W.2d 361 (Tex.1971).

Ferris now urges the trial court erred in ruling as a matter of law that their pleadings filed on April 9,1968, did not toll the statute of limitations as to their cause of action against Security, Schwartz, and Davis for title or possession of the property. We disagree.

On February 2, 1968, York filed a cross action and on April 9, 1968, Ferris filed their “plea of adoption,” adopting the pleadings of York’s cross action. These pleadings were amended by Ferris on June 6, 1973.

There can be no doubt pleadings may be adopted in an appropriate situation. However, in this case, the judgment had on August 17, 1965, became final as between Ferris and the other interested parties. Also, Ferris neither requested service nor was service issued nor were copies of the “plea of adoption” furnished the other parties.

The court in Patrick v. Callan, 353 S.W.2d 40 (Tex.Civ.App.—Waco 1961, no writ) said:

“In order to toll the statute of limitation by the filing of a suit there must be not only a bona fide intention that process be issued and served, but diligence as well. Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859, 872; Reed v. Reed, 158 Tex. 298, 311 S.W.2d 628, 631, syl. 4; City of Gainesville v. Harder, 139 Tex. 155, 162 S.W.2d 93, 95; First State Bank & Trust Co. of Rio Grande City v. Ramirez, 133 Tex. 178, 126 S.W.2d 16.”

See also Reed v. Reed, 158 Tex. 298, 311 S.W.2d 628 (1958).

Security and Schwartz urged affirmative relief under several statutes of limitations including Article 5509, T.R.C.S., which reads in part:

“Every suit to recover real estate as against a person having peaceable and adverse possession thereof, cultivating, using or enjoying the same, and paying taxes thereon, if any, and claiming under a deed or deeds duly registered, shall be instituted within five years next after cause of action shall have accrued, and not afterward.”

The jury found Diamond followed by Schwartz and Davis claimed the property under recorded deeds, paid taxes, and held continuous, adverse possession. It should be noted any action by Ferris was barred by the finality of judgment in 1965 and the failure to take an appeal from that judgment. He may not now complain that he should have been permitted to present evidence on the question of mortgagee in possession and to get an accounting for the possessory period of 1964 through 1975. Additionally, insofar as Schwartz’s defense of limitation is concerned, Ferris made no assertion against Schwartz until the cross action filed on June 6, 1973, and at no time made any assertion against Diamond. Security’s deed to Diamond was dated March 5, 1965, and filed of record March 8, 1965. Diamond’s deed to Schwartz was dated October 1, 1968, filed of record November 6, 1968. Schwartz’s continuity of possession since October 1, 1968, when “tacked” to the possession of Diamond as provided by Article 5516, T.R.C.S., shows a period in excess of eight years.

Article 5516 states:

“Peaceable and adverse possession need not be continued in the same person, but when held by different persons successively there must be a privity of estate between them.”

The jury’s findings as to possession together with the deed from Diamond to Schwartz establishes the privity of estate necessary to invoke the tacking provisions of Article 5516, supra. Hutto v. Cook, 139 Tex. 571, 164 S.W.2d 513 (Tex.1942). Schwartz sustained his limitation claim under Article 5509, supra, as to Ferris.

We have carefully considered all other points of error presented by either York or Ferris not specifically disposed of in this opinion and they are overruled.

We find the judgment of the trial court erroneous in the following respects:

(1) in decreeing the liens of Security and York are coordinate of equal dignity and as valid and subsisting first liens on the property;
(2) Security does not have a vendor’s lien against the property; and
(3) an order of sale issue to the sheriff or constable directing him to sell property and apply proceeds first to cost of receiver and then against judgment of Security and York.

We reverse those portions of the judgment and render judgment to the effect that:

(1) Security has a prior valid first lien on the property;
(2) Security has a vendor’s lien against the property;
(3) an order of sale issue to the sheriff or constable directing him to sell property and apply proceeds first to the receiver, second to the judgment of Security, and third to the judgment of York.

In all other respects, the judgment is affirmed.


source: Caselaw Access Project

author: SPURLOCK, Justice.

license: Public Domain

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. AMERICAN EMPLOYERS INSURANCE COMPANY et al., Appellees.
    No. 17772.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 3, 1976.
    Rehearing Denied Jan. 14, 1977.

      A. L. Breeland, Dallas, Brown, Herman, Scott, Dean & Miles, J. Shelby Sharpe, Fort Worth, for appellant.
    Shannon, Gracey, Ratliff & Miller, and Eugene J. Dozier, Fort Worth, for appellees.
   OPINION

SPURLOCK, Justice.

Appellees, American Employers Insurance Company (American) and Homette Corporation (Homette), have brought suit seeking declaratory relief. The issue is whether the insurance policy issued by Liberty Mutual Insurance Company (Liberty), appellant, to U. S. Plywood Corporation (Plywood), a division of Champion International Corporation (Champion), also covers Homette as an insured. Suit had been filed against Homette by the widow of a Plywood truck driver who was killed when part of a load of materials he had delivered to Homette fell on him during the unloading of Plywood’s truck by two employees of Homette, at Homette’s place of business. They also seek a declaration that Liberty has an obligation to defend said suit.

The trial court, sitting without a jury, found that Homette was covered under the policy, and ordered, adjudged and decreed that Liberty assume the defense of Hom-ette in the suit filed by decedent’s widow, to further pay to the extent of its policy limits any judgment which may be recovered in said action, to reimburse American for all costs and expenses it incurred in the investigation and defense of said cause of action, and to pay all costs incurred in this declaratory judgment action.

Judgment modified, and as modified, affirmed.

This appeal involves the construction of a relatively new clause now appearing in automobile combination comprehensive insurance policies. This clause has been prescribed by the State Board of Insurance under the provisions of Article 5.06 of the Texas Insurance Code. It limits the liability for persons additionally insured under the terms of the omnibus clause. The Supreme Court has not yet construed this clause.

Liberty and Homette agree that the sole issue in this appeal is whether or not Hom-ette is a “borrower” of the Plywood truck which was being unloaded by Homette.

That portion of the insurance policy here involved provides as follows:

“PERSONS INSURED

“Each of the following is an insured under this insurance to the extent set forth below: .

“(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:

“(1) a lessee or borrower of the automobile, or

“(2) an employee of the named insured or of such lessee or borrower; . . ..”

Liberty assigns only one point of error which follows:

“The trial court erred in entering judgment that Liberty Mutual Insurance Company is obligated under its policy of insurance sold to U. S. Plywood to assume the defense and all of the expenses incident thereto of Homette Corporation in cause number 213-26869-74, styled Carol Jean Dragoo et al. v. Homette Corporation on the docket of the 213th District Court of Tarrant County, Texas, and to pay any judgment which may be recovered therein pursuant to said policy, since the undisputed facts and those found by the court establish as a matter of law that Homette Corporation is not an insured, named or otherwise, under the terms of the policy.”

American and Homette agree that the facts stated in Liberty’s brief are correct but disagree only over the interpretation of the court’s Finding of Fact No. 9. Therefore, under Rule 419, T.R.C.P., the court accepts the facts detailed in Liberty’s brief.

The evidence reflects that Plywood manufactures and sells a product called “Nova-dek,” which consists of large panels of plywood.

On March 28, 1973, Billy Don Dragoo, an employee of Plywood, drove his employer’s truck loaded with “Novadek” to the unloading area of Homette. The “Novadek” had been purchased by Homette from Plywood. It was the custom and practice for Plywood to deliver “Novadek” to its customer, Hom-ette. Homette had express or implied permission to unload the plywood. Dragoo then removed from the stacks of plywood a nylon webbing that had held the plywood to the bed of the truck, and was standing beside the truck rolling up the nylon when he was fatally injured. Dragoo was not assisting in the unloading of the truck nor directing the unloading thereof. Once the unloading began Homette was using the truck for its own business and not for any purpose in which Plywood was interested.

After Dragoo had removed the tie-downs, the two employees of Homette, using a forklift, were in the process of unloading the plywood when some of it fell upon Dragoo crushing him. Dragoo was standing on the ground, opposite the side of the truck from which the forklift was being operated. The plywood had a tendency to slide if it was jostled or jarred.

The court found all the facts and concluded all the law necessary to support its judgment. Its Finding of Fact No. 9 is as follows:

“At no time during the proceedings did any employees of Homette exercise any control over the movements of Mr. Dragoo or the truck; . . . .” (Emphasis added.)

In its conclusions of law, the court determined the policy here in question had been issued and afforded coverage to U. S. Plywood and that the truck here in question being unloaded was an “owned automobile” as to Plywood, and Homette was a “borrower” and user of the truck for the purpose of unloading it. Its other conclusions are:

“3. That the death of Dragoo occurred while ‘unloading’ the truck, and that the ‘user’ was not an employee of U. S. Plywood, neither was the ‘user’ a ‘lessee’;

“4. The user at the time of the unloading was a ‘borrower’ within the meaning of the policy;

“5. Since the truck in question was being ‘unloaded’ by' employees of Homette and was ‘borrowed’ by them for that purpose, Defendant Liberty Mutual’s policy affords coverage to Homette and its employees;

“6. Defendant Liberty Mutual Insurance Company has the duty and obligation by virtue of its insurance policy to assume the defense of Homette in this cause.”

The parties to this appeal agree that if in unloading the truck on its premises, Hom-ette was either a borrower or a lessee of the truck, then Homette is an insured; otherwise, it is not. The restriction in the omnibus clause removed every unloader from coverage except those who were either lessees or borrowers of the automobile or their employees, and the named insured of a non-owned automobile.

In construing or interpreting an insurance policy, the rule is well-established that ambiguities are to be found liberally in favor of the insured and strictly against the insurer. Ramsay v. Maryland Am. General Ins. Co., 533 S.W.2d 344 (Tex.Sup., 1976); Life Ins. Co. of North America v. Spradlin, 526 S.W.2d 625 (Tex.Civ.App., Fort Worth, 1975, ref., n. r. e.). This is especially true in dealing with exceptions and words of limitation (Ramsay v. Maryland Am. General Ins. Co., supra) or when the terms are of uncertain import or reasonably susceptible to double construction (Life Ins. Co. of North America v. Spradlin, supra). However, words must be given their usual and accepted meaning, absent evidence of intent to the contrary. Pan American Insurance Co. v. Cooper Butane Co., 157 Tex. 102, 300 S.W.2d 651 (1957); Fox v. Thoreson, 398 S.W.2d 88 (Tex.Sup., 1966).

Liberty takes the position that before Homette could be a lessee or borrower it must have paid or promised to pay a consideration for the lease or loan of the truck. No separate delivery charge was made to Homette for the delivery. However, it is undisputed that by custom and usage Plywood, as a part of the consideration for the sale of the plywood to Homette, delivered its product to the plant of Hom-ette and gave Homette permission to use the truck for the purpose of unloading it. Here the truck was stopped for unloading at a place satisfactory with Homette. The trial court impliedly found that Homette had the right to control the truck for unloading purposes even though it did not exercise its right to control the movements of Dragoo or the truck on this occasion.

We next examine the meaning of “borrower” and “lessee” and the distinction in the meaning of these two words.

In the absence of evidence to the contrary we must hold the parties to the insuring contract intended the words “borrower” and “lessee” be given their usual, ordinary, popular, and plain grammatical meaning, unless it definitely appears that the intention of the parties would thereby be defeated. Fox v. Thoreson, supra; Pan American Insurance Co. v. Cooper Butane Co., supra; 13 Tex.Jur.2d (1960 Ed.), Contracts, Sec. 135, p. 312, Determining meaning of terms and phrases.

Black’s Law Dictionary (1968 Ed.) defines a “borrower” as “He to whom a thing is lent at his request.” Ballentine’s Law Dictionary (1969 Ed.) defines it as “One who borrows,” and defines “borrow” as “To obtain upon loan from the owner or other person having the right of disposition.” Webster’s Third International Dictionary (1964 Ed.) defines “borrower” as “one that borrows,” and defines “borrow” as “to receive temporarily from another, implying or expressing the intention either of returning the thing received or of giving its equivalent to the lender: obtain the temporary use of.” The Oxford English Dictionary (1970 Ed.) defines a “borrower” as “One who takes a thing on security or on credit.”

“Lessee” is defined in Black’s Law Dictionary as “He to whom a lease is made. He who holds an estate by virtue of a lease.” And “lease” is a “Grant of use and possession, in consideration of something to be rendered.” Ballentine’s Law Dictionary defines this term primarily as it applies to land, but its definition of “lease” extends to other kinds of property as well: “A contract for the possession and profits of land and tenements on the one side, and a recompense of rent or other income on the other. . . . Inclusive in modern times, of the bailment of a chattel, such as an automobile or a computer.” Webster’s Third International Dictionary defines “lessee” as “a bailee under bailment agreement providing a rental for personal property.” A “lessee” in the Oxford English Dictionary is “A person to whom a lease is granted; a tenant under a lease.” A “lease” is “A contract between parties, by which the one conveys lands or tenements to the other for life, for years, or at will, usually in consideration of rent or other periodical compensation.”

The trial court found Homette was a “borrower” and not a “lessee.” It follows then that cases indicating that a party in the position of Homette was not a lessee are not persuasive that such party was not a borrower.

The distinction between a borrower and a lessee in general seems to be one of compensation only. A lessee in general “borrows” something for consideration. The distinction is less clear when we realize that when one borrows money from a lending institution, he does so for a consideration. The crux of the question in this case is not whether Homette was a borrower or whether it was a lessee, but whether it was one of the two.

In the case before us the attorneys for the parties did an extraordinarily complete job of research and wrote their briefs clearly and cogently. Their research, and that of this Court, has revealed only one Texas case in which the “borrower or lessee” clause has appeared. That is the case of Gary Safe Company v. Transport Insurance Co., 525 S.W.2d 64 (Tex.Civ.App., Houston, 14th Dist., 1975, no writ hist.). In that case the facts differ substantially from those in the case before us, but the policy provisions are the same.

In that case, Gary Safe Company was the shipper of a safe which was transported by Braswell Motor Freight Lines, Inc., a common carrier. Malloy’s Sweda Cash Registers, Inc. was the consignee of the safe. When the safe reached its destination, Truitt Reynolds, an employee of Braswell, was helping to unload it when it fell on him. Reynolds (who is in the position of Dragoo here, except that he was helping to unload it) sued Gary Safe Company (the shipper, not the carrier) and Malloy’s Sweda Cash Registers, Inc. (Homette is in the position of Malloy’s) for damages for the personal injuries he sustained. Transport Insurance Co. had issued its comprehensive liability policy to Braswell Motor Freight Lines, Inc. Both Gary Safe Company and Malloy’s alleged they were insured under this policy.

In the trial court, Transport filed a motion for summary judgment against both Gary Safe Company and Malloy’s. Gary Safe Company in turn filed a motion for summary judgment against Transport. Malloy’s filed no motion for summary judgment. The trial court granted Transport’s motion for summary judgment against Gary Safe Company and Malloy’s; and it denied Gary Safe Company’s motion for summary judgment. Gary Safe Company appealed, but Malloy’s did not.

The Court of Civil Appeals held that Gary Safe Company was not a lessee or borrower of the truck. This was a correct holding because Gary Safe Company was merely the shipper, not the carrier, and had nothing to do with the unloading of the safe from the truck.

After disposing of the appeal by Gary Safe Company, that court (referring to the case of White v. Great American Insurance Co. of New York, 343 F.Supp. 1112 (M.D.— Ala., 1972) stated: “That case might factually support the claim made by Malloy’s in the trial court, since it was the consignee upon whose premises and by whose employees the safe was being unloaded at the time the accident occurred. However, Malloy’s did not appeal from the summary judgment rendered by the trial court.”

This is dictum, but it is clear that if the facts in the case before us had been before that court it would have held that Homette was a “borrower” and therefore was an additionally insured person. Homette is in a stronger position than Malloy’s because the Homette employees were doing the exclusive unloading of the truck.

The Court in the Gary Safe Company case, supra, cites and analyzes four cases, as follows:

“National Auto. & Cas. Ins. Co. v. Glens Falls Ins. Co., 493 S.W.2d 909 (Tex.Civ.App. —Tyler 1973, no writ), involved the construction of an insurance policy with similar language. Glens Falls had issued a policy on a truck which excluded coverage when the defendant was the owner of the premises at which the truck was being unloaded, unless the defendant was a ‘bailee or borrower’ of the truck. The driver of the truck was injured while the truck’s cargo was being unloaded on the premises of the consignee of the cargo. The truck driver sued the consignee. The Court held that the consignee was not covered by the Glens Falls policy because it was the owner of the premises at which the truck was being unloaded when the injury occurred. Although the Court did not discuss the matter in its opinion, if the consignee had been a bailee or borrower of the truck, the exclusionary provision would not have applied and it would have been an insured under the policy-

“In Prudhomme v. Vancouver Plywood Co., La.App., 240 So.2d 587 (1970), it was held that one engaged in the loading of another’s truck was not a bailee or borrower of the truck so as to be an insured under the policy covering the truck.

“In Walter S. Kozdranski Co., Inc. v. Jamestown M. Ins. Co., 40 A.D.2d 187, 338 N.Y.S.2d 634 (1972), aff d mem., 34 N.Y.2d 542, 354 N.Y.S.2d 104, 309 N.E.2d 873 (1974), a declaratory judgment action was brought to determine whether, under the facts of the case, an insurer was liable under the loading and unloading provision of an automobile policy. Kozdranski contracted with the Stauffer Chemical Company to supply a baekhoe and truck to clean out a sludge pit on Stauffer’s premises. Kozdranski arranged with Gross Plumbing & Heating Co., Inc. for Gross to supply a truck to be used at the site to assist Koz-dranski’s baekhoe operator, Chapman, in removing the sludge waste. An accident occurred while the baekhoe was being used to remove the sludge and an employee of Stauffer, who was not engaged in the operation at the time, was killed. The employee’s survivor and Chapman sued Kozdran-ski, and brought a declaratory judgment action to determine their rights and obligations under the insurance policies issued to Kozdranski and Gross, respectively. Under the facts of the case, the Court held that Kozdranski was a lessee or borrower of the Gross dump truck. In addition, the Court held that under the facts of the case, the alleged negligence occurred during the loading and unloading of the truck. The facts held by the Court to constitute a lessee-lessor situation were that Kozdranski paid by the hour for the services of the truck and driver, that the truck was to be used only as directed by Kozdranski’s backhoe operator, and that Gross was to bill Kozdranski at the end of the month for the number of hours that the truck and driver were at Stauffer’s site.

“In White v. Great American Insurance Co. of New York, 343 F.Supp. 1112 (M.D.— Ala. 1972), a summary judgment case, a truck driver for Arrow Truck Lines was injured during the loading of an Arrow truck by employees of Union Camp Corporation on the latter’s premises. Union Camp’s general liability insurer brought an action for reimbursement against Arrow’s insurer claiming coverage for the Union Camp employees under the loading and unloading provision of Arrow’s policy. The Court held that the Arrow truck was leased or borrowed under the policy provision. The Court said: ‘At the time of the accident, the truck was in the possession of Union Camp for purposes of loading the consignment. Union Camp was paying Arrow for delivery of the consignment. The truck was either leased or borrowed for the purpose of loading.’ ”

In the case of White v. Great American Insurance Co. of New York, supra, the Alabama court stated: “The Court finds that White and Earl were employees of a lessee or borrower of the truck and were within the definition of ‘insured’ set out herein-above. The truck, at the time of the accident, was in the possession of Union Camp for purposes of loading the consignment. It is of no consequence that the carrier’s compensation paid Arrow by Union may have included rent for the truck while Union was loading it or that the use of the truck by Union during loading may have been a gratis loan to Union by Arrow. Permission by Arrow to load is obvious.” (Emphasis added.)

In Broome County Co-op. Fire Ins. Co. v. Aetna Life and Casualty Co. et al., 75 Misc.2d 587, 347 N.Y.S.2d 778 (Sup.Ct., 1973) the court had before it the question of whether a woman who drove another person’s car under the facts in that case was a borrower of that car within the meaning of the omnibus clause of the insurance policy.

The owner of the car was crippled and could not drive or walk. Her car was specially built to allow her ingress and egress in her wheelchair. The driver was driving the car solely for the benefit of the passenger-owner. The owner was injured while being “unloaded” from the car. That court held the driver was not a lessee or borrower because she did not use the car for her own business or pleasure nor for any purpose in which she was interested. That court stated: “In common everyday language the term ‘borrower’ is generally understood to mean someone who has, with the permission of the owner, possession and use of the property of another for his own purposes.”

We hold that the term “borrower” as applied to the facts in the case at bar means someone who has, with permission of the owner, temporary possession and use of the property of another for his own purposes.

It follows then that Homette had, with the owner’s permission, the temporary possession of the truck for unloading purposes, and is an additional insured under the policy.

That part of the judgment ordering Liberty to assume the defense of Homette in the suit filed by decedent’s widow and to pay all expenses incident thereto is affirmed.

That portion of the judgment declaring that Liberty would be obligated to pay to the extent of its policy limits any judgment that may be rendered against it in the tort action is an advisory opinion, and, as such, is prohibited by the Constitution.

Liberty did not attack the trial court’s declaration of liability as being premature. Probably it did not do so because that tort action has been reduced to judgment, according to Homette’s brief. However, the status of the tort action is not disclosed by the record before us.

In the state of the record, we hold that that part of the judgment that declares Liberty is obligated to pay any judgment that may be rendered against it in the tort action is fundamental error which should be raised and corrected by an appellate court on its own motion. Central Surety & Insurance Corp. v. Anderson, 445 S.W.2d 514 (Tex.Sup., 1969). On remand see Central Surety & Insurance Corp. v. Anderson, 446 S.W.2d 897 (Tex.Civ.App., Fort Worth, 1969, no writ hist.).

Accordingly, under the authority granted this Court by Rule 434, T.R.C.P., we modify the judgment of the trial court by deleting therefrom the following: “. . . and to further pay to the extent of its policy, any judgment which may be recovered in said action.”

The judgment of the trial court as modified is affirmed. It is further ordered that this judgment is without prejudice to the right of appellees to bring an action against appellant for the payment of any judgment against Homette Corporation that may be rendered in Cause No. 213-26869-74 styled Carol Jean Dragoo, et al. v. Homette Corporation. Costs in the trial court are assessed against appellant. Costs of this appeal are assessed one-half against appellant and one-half against appellees.


author: SHANNON, Justice.

text:
    Barney D. WELCH, Appellant, v. Gerald Glenn GAMMAGE, Appellee.
    No. 12475.
    Court of Civil Appeals of Texas, Austin.
    Dec. 8, 1976.
    Rehearing Denied Jan. 5, 1977.

      J. P. Darrouzet, Austin, for appellant, on appeal only.
    H. Lee Godfrey, Graves, Dougherty, Hearon, Moody & Garwood, Austin, for ap-pellee.
   SHANNON, Justice.

This appeal concerns the right vel non of Gerald Glenn Gammage, a real estate salesman, to a payment in the nature of a commission from the sale of a 4.37-acre tract of land in Travis County.

Appellee, Gammage, sued appellant, Barney D. Welch, in the district court of Travis County for $8,905 as a commission and for attorney’s fees. After trial to a jury, judgment was entered for Gammage for $11,-904.

In his trial petition Gammage declared that before September 14, 1973, he and Welch came to an understanding concerning the opening of a real estate office to be known as “All-State Properties.” On September 14, 1973, the parties entered into a “Broker and Salesman” contract pursuant to which Gammage was to act as real estate salesman. Gammage agreed to hire and train a number of residential and commercial real estate salespersons. Under the said contract Welch would charge the “usual and customary” commission for the services performed by Gammage and himself, and seventy percent of all such commissions would be paid to Gammage and thirty percent would be paid to Welch. It was further agreed that if a sale were made by a salesperson other than Gammage, that person would be entitled to fifty percent of the commission and Gammage would be entitled to twenty percent of the commission.

Gammage pleaded further that he obtained a listing of a 4.37-acre tract of land located in Travis County, and owned by Frances Karber, and his wife, Rosalie. By the terms of that listing the Karbers were to pay All-State Properties a six percent real estate commission upon the sale of the land. While the listing was still in effect, Gammage alleged that he interested Welch in the purchase of the land, and that Welch agreed to pay him seventy percent of six percent of the total price.

After the Karbers listed the land with All-State Properties, at least two prospective buyers or their representatives called upon Gammage to submit offers to the Kar-bers. The Karbers declined these offers.

One of the prospective purchasers was P. R. Bonds, who was also a broker associated with All-State Properties. It was during the negotiation of Bond’s offer with the Karbers and Gammage that Welch decided to submit to the Karbers his offer to purchase the tract. Gammage assisted Welch in preparing the written offer. That offer provided for the payment of a six percent commission. The Karbers declined Welch’s offer.

At a later time Welch, acting alone, bargained with the Karbers for the land, and on October 22, 1973, he signed a contract for the purchase of the land. That contract did not provide for the payment of a commission. Welch later assigned the contract of sale to another for a consideration of $9,000. Gammage, of course, views Welch’s assignment of the contract as a device to escape payment of the commission.

Gammage testified that before Welch entered into the contract with the Karbers to buy the land, Welch agreed to pay Gam-mage seventy percent of six percent of the sales price. Welch denied such an agreement, and further denied that the Karber tract was Gammage’s “listing.” Welch refused to pay Gammage anything from the Karber sale.

The cause was submitted to the jury by two special issues. Welch did not object to the general manner of the submission, nor did he object that the jury was not limited by the submission to the consideration of a commission owed Gammage under the “Broker and Salesman” contract. In response to the first issue, the jury answered that “. . . Mr. Welch owes Mr. Gam-mage a commission based on the Karber tract." The jury answered, second, that the amount-of the commission owed Gammage by Welch was $8,904.

As previously indicated, judgment was entered for Gammage for $11,904, which sum represented $8,904 for the commission and $3,000 for attorney’s fees.

Welch attacks the judgment by a number of points of error. By five points of error he claims that the judgment is not supported by any pleading, and further, that there is no evidence to support the jury’s response that Welch owed Gammage “. . .a commission based on the Kar-ber tract.” (Emphasis supplied) His argument is as follows: Gammage pleaded a recovery under the terms of the parties’ “Broker and Salesman” contract which provided that seventy percent of all commissions would be paid to Gammage. Because the final contract of purchase and sale between Welch and the Karbers did not provide for a commission, Welch claims that under the “Broker and Salesman” contract nothing was due Gammage.

Welch’s argument overlooks the fact that the matter of an oral agreement by Welch to pay a fee to Gammage on the Karber transaction was tried by implied consent. Tex.R.Civ.P. 67. In this connection, Gam-mage was permitted to testify without objection that Welch told him that “. I didn’t need to worry, that he [Welch] would pay the commission just like he would if we [All-State Properties] received a commission from someone else.” A part of the oral deposition of P. R. Bonds, a broker who was formerly with All-State Properties, was read into evidence. Deposition testimony was received without objection that Welch told Bond no matter who bought the Karber tract, Gammage would receive his part of the commission on the sale.

As previously noticed, Welch made no effort at the time of the preparation of the charge to limit the consideration of the jury to a commission owed Gammage under the terms of the “Broker and Salesman” contract. Instead, the jury was charged simply concerning a “commission” owed Gammage by Welch. The word “commission” usually means in this context the percentage or allowance made to a factor or agent for transacting business for another. The jury was free under the court’s charge to consider, and believe, Gammage’s evidence concerning Welch’s oral agreement to pay Gammage seventy percent of six percent of the sales price.

Welch’s final point complains of the entry of the judgment awarding attorney’s fees to Gammage. The claimed basis for the point is that Gammage failed to prove the presentment of his claim to Welch so as to be entitled to attorney’s fees under Tex. Rev.Civ.Stat.Ann. art. 2226.

Presentment is a step on which Gammage “must fall down, or else o’erleap,” for in his way it lies. One way in which he seeks to “o’erleap” it is by contending that a request for admissions and Welch’s response to that request operated as a presentment of his claim. In response to a request for admission, Welch admitted that he “. . . refused to pay and still refuses to pay the said sum [$8,905] to Plaintiff, Gerald Glenn Gammage.”

Gammage did not introduce the request for admission and its response into evidence. The better practice is to introduce the requests for admissions and the responses into evidence. Nevertheless, requests for admissions and responses may be considered as a part of the record if they were filed with the clerk of the court at trial time. Insurance Co. of No. Am. v. Fire Insurance Exch., 508 S.W.2d 703 (Tex. Civ.App.1974, no writ); Pacific Finance Corporation v. Ramsey, 305 S.W.2d 297 (Tex.Civ.App.1957, no writ). Appellant’s point is overruled.

The judgment is affirmed.

Affirmed.

      . “The Prince of Cumberland! that is a step
      On which I must fall down, or else o’erleap,
      For in my way it lies.”
      —Shakespeare, Macbeth, Act I, iv, 49.


author: COLEMAN, Chief Justice.

text:
    BURKE WILEY, INC., et al., Appellants, v. Mrs. Geraldine LENDERMAN, Appellee.
    No. 16740.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 9, 1976.
    Rehearing Denied Jan. 6, 1977.

      Robert C. Floyd, Houston, for appellants; Butler, Binion, Rice, Cook & Knapp, Houston, of counsel.
    Riddle, Murphrey, O’Quinn & Cannon, John M. O’Quinn, Houston, for appellee.
   COLEMAN, Chief Justice.

This is a suit for damages for personal injuries received in an inter sectional collision. The trial court entered a judgment for the plaintiff based on a jury verdict. The defendant has appealed contending that the trial court erred in refusing to submit to the jury an issue inquiring as to whether the plaintiff was guilty of negligence by reason of her speed. There is sufficient evidence to require that the issue be submitted to the jury. The judgment will be reversed and the cause remanded to the trial court.

The accident resulting in this suit occurred at the intersection of Larkin and Detering Streets in the City of Houston, Texas. Traffic entering Larkin Street from Detering Street is controlled by stop signs. Each street is narrow, approximately twenty feet wide, with two lanes of traffic, one in each direction. At the time of the accident Douglas Burke was driving a pick-up truck belonging to Burke Wiley, Inc. in a northerly direction on Detering Street. The plaintiff was driving a Plymouth automobile in a westerly direction on Larkin Street. The collision occurred in the northeast corner of the intersection. The jury found the defendant driver guilty of negligence in failing to yield the right of way to Mrs. Lenderman and in failing to keep a proper lookout. The jury did not find the plaintiff guilty of any act of negligence. Special Issue No. 5 inquired about Mrs. Lenderman’s lookout, and Special Issue No. 7 inquired about her application of the brakes.

The defendant requested that the following special issue be submitted to the jury:

“Special Issue No._
“Do you find from a preponderance of the evidence that on the occasion in question, Mrs. Geraldine Lenderman was driving at a greater rate of speed than a person using ordinary care would have driven?
“Answer:-”

The defendant also requested an issue on proximate cause predicated on an affirmative answer to the preceding requested issue.

The trial court refused to submit these special issues, and the defendant assigned this action as error. The plaintiff answers that the issues were not submitted to the trial court in proper form, and that there was no evidence raising the issues.

Rule 279, T.R.C.P., requires the trial court to submit all of the controlling fact issues raised by the evidence. Texas General Indemnity v. Scott, 152 Tex. 1, 253 S.W.2d 651 (1958). Where material facts are controverted or are such that different inferences concerning the conduct of one of the parties may be drawn, questions of fact are raised which must be submitted to the jury for their determination. Fitzgerald v. Russ Mitchell Constructor, Inc., 423 S.W.2d 189 (Tex.Civ.App. — Houston [14th Dist.] 1968, writ ref. n.r.e.).

The trial court did not elect to submit broad issues as authorized by Rule 277, T.R.C.P. Since the court elected to submit a special issue on each of several acts of alleged negligence, the defendant was entitled to a special issue on each act of contributory negligence which was supported by proper pleadings and evidence. Kainer v. Walker, 377 S.W.2d 613 (Tex.1964). In this case the defendant alleged the plaintiff’s negligence in general terms, and any fact raised by the evidence which constituted a defense to the plaintiff’s claim should have been submitted to the jury for determination. Brown & Root, Inc. v. Gragg, 444 S.W.2d 656 (Tex.Civ.App. — Houston [1st Dist.] 1969, writ ref. n.r.e.); Billingsley v. Southern Pacific Co., 400 S.W.2d 789 (Tex. Civ.App. — Tyler 1966, writ ref. n.r.e.).

A trial court cannot refuse to submit an issue merely because the evidence is insufficient to support a judgment based on the same. He may refuse to submit a requested issue if there is no evidence raising the issue. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). Since the plaintiff contends that there is no evidence to raise an issue of excessive speed on the part of the plaintiff, the evidence must be reviewed in the aspect most favorable to the defendant. There is evidence that Mrs. Lenderman was traveling between 25 and 30 miles an hour as she approached the intersection. A large soft drink truck was parked near the southeast corner of the intersection extending partially out into Larkin Street and blocking Mrs. Lenderman’s view of the stop sign at that corner and of any car stopped at the sign. Both Larkin and Detering Streets were narrow and paved with asphalt. There was a store located near the southeast corner of these streets. This was a residential neighborhood and it was necessary to keep a lookout for children playing in the street. Mrs. Lenderman did not see the defendant’s truck until it was partially within the intersection because of the location of the soft drink truck. There is some evidence that Mrs. Lenderman was operating her vehicle at a greater rate of speed than an ordinarily prudent person in the exercise of ordinary care would have operated a vehicle under the same or similar circumstances. See Vardilos v. Reid, 320 S.W.2d 419 (Tex. Civ.App. — Houston 1959, no writ history); Seay v. Kana, 346 S.W.2d 384 (Tex.Civ.App. —Houston 1961, no writ history).

The defendants’ requested special issues were submitted to the trial court in a form which included a combination of issues as permitted by Rule 277, T.R.C.P. The trial court determined to submit the case on separate special issues and did submit lookout and brakes. These issues were paragraphs A and C of the requested issue submitted by the defendant. He then ran lines through paragraphs A and C leaving only paragraph B relating to speed in his requested issue. The trial court then endorsed “Refused” on this issue. A second requested issue was to submit the proximate cause question and it was modified in the same manner and was also marked refused by the trial court. The requested issue was requested in writing in substantially correct wording. The trial court’s refusal to submit the requested issues was properly preserved for consideration by this court.

The trial court was not confronted with a group of special issues submitted en mass in a single instrument and intermingled in such way as to be confusing. Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786 (1941), and other cases cited by the plaintiff in support of the trial court’s ruling are clearly distinguishable. The trial court was clearly presented with the defendants’ requested issue on speed.

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


author: PEDEN, Justice.

text:
    George W. HARRISON, Appellant, v. Jimmy OLIVER et al., Individually and d/b/a Oliver Brothers, Appellees.
    No. 16783.
    Court of Civil Appeals of Texas, Houston (1st Dist.)
    Dec. 9, 1976.
    Rehearing Denied Jan. 6, 1977.
    W. W. Kilgarlin, Houston, for appellant; Kilgarlin, Dixon & Hancock, Houston, of counsel.
    Bennett & Keeling, Kenneth H. Keeling, Huntsville, for appellees.
   PEDEN, Justice.

Plaintiff George Harrison appeals from an order sustaining the defendants’ plea of privilege after a non-jury hearing. Appellant relies on Subdivision 9a of Article 1995, V.C.S., to hold venue in Harris County. Neither findings of fact nor conclusions of law were filed. The plaintiff alleged in his petition that the defendants were his employers and were not subscribers under the provisions of the Texas Workmen’s Compensation Act, so he brought this suit under Sections 1 and 4 of Article 8306, Vernon’s Texas Civil Statutes. He was the only witness who testified in the venue hearing.

The appellees’ residence and sawmill are in Walker County. Harrison worked for them as a truck driver and also lived in Walker County. The day of the injury Harrison drove a truck of crossties to a plant in Harris County. The truck, chains, and boomers were furnished to the plaintiff by the defendants in Walker County. The crossties are held in place by chains and boomers. A boomer is a device used to tighten the chains. Its basic parts are two hooks and a handle. The hooks are put into the chain and the boomer handle is pulled down to tighten the chain and secure the load. The appellant climbed on the truck and was attempting to tighten the supporting boards with the boomer when it slipped and he fell off the truck, injuring his hip. His petition alleged and he testified that he was injured as a result of the negligence of the defendants because the boomer they furnished was, as he told them, worn out and its teeth did not properly engage the chain causing the boomer to slip but they did not correct the faulty equipment or give him new equipment to work with. Further, “that such conduct of his employers was negligence and that such conduct in failing to provide him with suitable equipment for his job as described above was a proximate cause of the injuries that plaintiff sustained.”

This suit was filed in Harris County. The defendants filed a plea of privilege to be sued in the county of their residence. The plaintiff’s controverting plea contends venue was proper in Harris County under Subsection 9a of Article 1995, V.T.C.S. It specifies these facts a plaintiff must prove to sustain venue under this exception in a county other than that of defendant’s residence:

“1. That an act or omission of negligence occurred in the county where suit was filed.
“2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of employment.
“3. That such negligence was a proximate cause of plaintiff’s injuries.”

The appellant’s only point of error is that the trial court erred in sustaining the defendants’ plea of privilege because their negligence was continuous from one county to the next. He argues that whether or not the truck with defective boomer was given to him in Walker County, the act of negligence followed him into whatever county he may have gone in order to perform his work. He cites Holiday Lodge Nursing Home, Inc. v. Huffman, 430 S.W.2d 826 (Tex.Civ.App.1968, no writ), for its holding that a master has a continuous and non-del-egable duty to supply an adequate force of competent workmen for carrying on the work requested of the employees with reasonable safety. He says “Appellant submits that there is no distinction between an employer furnishing a sufficient number of employees to aid an employee to accomplish a given task and an employer furnishing adequate and safe equipment to aid an employee in performing a given task.”

We consider that the appellant has raised on this appeal both the issues of acts and omissions of negligence.

In Leonard v. Abbott, 366 S.W.2d 925 (Tex.1963), it was held that if a proper plea of privilege is presented a suit for damages based on the theory that negligent acts in one county caused damage in another county may not be tried in the county in which the damage resulted where that county is not the residence of the defendant. The Supreme Court described the language of Subdivision 9a(l) of Article 1995, as “plain and unambiguous” and stated:

“An act can only occur where the act actually takes place. ‘Occur’ does not include the results of the occurrence, but only the taking place, happening, or coming to pass, [citations omitted]. The Legislature knew how to use appropriate language to confer venue where the cause of action or a part thereof arose, had it desired to do so. See subdivisions 23 and 27 of Article 1995.”

See also Foreman v. Rowe, 511 S.W.2d 544 (Tex.Civ.App.1974, no writ), and Wright v. Climatic Air Sales, Inc., 527 S.W.2d 518 (Tex.Civ.App.1975, no writ).

Looking to the question of negligent omissions, we note that the Texas Supreme Court stated in Western Union Telegraph Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977 (1947):

“The law imposes upon the employer the duty to exercise reasonable care in providing for an employee adequate help in the performance of work required of him. The duty is nondelegable and continuous, the rule being in principle the same as that requiring the employer to furnish his employee with safe instrumentalities and a safe place to work.”

Cited with approval is the paragraph now found at 53 Am.Jur.2d 264, Master and, Servant § 210, declaring that the rule requiring an employer to furnish a sufficient force to enable his employees to do their work with reasonable safety to themselves is merely an extension of the fundamental doctrines requiring the employer to provide his employees with safe instrumentalities and a safe place to work.

We hold that the plaintiff showed by a preponderance of the evidence the necessary venue facts to establish venue in Harris County by showing he was injured as a result of the defendants’ violation of their continuing duty through their negligent omission in Harris County to furnish him safe instrumentalities to work with.

His testimony was that of an interested party, but the defendants had the opportunity to contradict it and did not do so.

The order of the trial court is reversed and venue is ordered retained in Harris County.


author: MOORE, Justice.

text:
    Rogelio VARGAS, Individually and in behalf of other similarly situated, Appellant, v. ALLIED FINANCE COMPANY, Appellee.
    No. 982.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 9, 1976.
    Rehearing Denied Jan. 6, 1977.
    Gordon J. Bogen, Dallas Legal Services, Dallas, for appellant.
    Joe B. Burnett, Carlos I. Miro, Dallas, for appellee.
   MOORE, Justice.

This is an appeal from a summary judgment. Plaintiff, Rogelio Vargas, suing individually and as a class representative, brought this suit as a class action against defendant, Allied Finance Company, for an injunction to restrain the defendant from engaging in certain deceptive trade practices prohibited by the Deceptive Trade Practices Consumer Protection Act, Tex. Bus. & Comm.Code Ann., section 17.41, et seq., hereinafter referred to as the “Act.” As grounds for his cause of action, plaintiff alleged that the finance company regularly engaged in the practice of filing all of its consumer collection suits in Dallas County, Texas, rather than filing the suits where the consumer resided or entered into the contract. Plaintiff alleged that the distance, cost and inconvenience of defending such suits out of the county of the residence of the plaintiff placed a virtually insurmountable burden on him and the members of his class to appear, answer and defend such suits in a foreign forum and that this amounted to a denial of due process and an unfair trade practice. In substance, plaintiff prayed for the following relief: (1) a temporary and permanent injunction to enjoin the defendant from instituting suits for the collection of promissory notes and retail installment contracts in any county in the State other than the residence of a defendant or the county in which the defendant signed the contract; (2) an order directing the defendant to transfer all such suits filed after August 27, 1973 (the date on which Article 1995, sec. 5 was amended), to the county of defendant’s residence or to the county where the contract was signed; and (3) an order vacating any default judgments granted against any member of the plaintiff’s class subsequent to the date of the filing of the petition in the present case.

Defendant answered with a general denial and thereafter filed a motion for summary judgment under the provisions of Rule 166-A, T.R.C.P., in which it alleged that no issue of material fact was raised by the pleadings, depositions, affidavits or interrogatories and, therefore, it was entitled to judgment as a matter of law. The matter came to trial on defendant’s motion for summary judgment and after a hearing thereon, the trial judge entered a summary judgment in favor of the defendants from which plaintiff perfected this appeal. Hereinafter, the parties will be referred to as they appeared in the trial court.

We affirm.

Before discussing plaintiff’s point of error, a brief history of the facts leading to this litigation will be helpful. Allied Finance Company is a large finance company domiciled in Dallas County with numerous branch offices throughout the state. It admits that since August 1973 none of its collection suits were filed outside of Dallas County. On October 18, 1972, Vargas, a resident of Starr County, purchased a television and stereo set from Miller TV and Appliance at McAllen, Hidalgo County, Texas, for the sum of $636.08 and executed a promissory note together with a retail installment contract agreeing to pay such amount to Miller TV and Appliance in monthly installments. The promissory note was payable in Dallas, Dallas County, Texas, and the installment contract provided that the contract was performable in Dallas, Dallas County, Texas. The note and contract was subsequently assigned to defendant, Allied Finance Company. When the payments became delinquent, Allied Finance Company filed suit against Vargas in the Justice Court of Dallas County, Texas, Precinct 1, for the balance due in the amount of $197.40. Vargas filed a plea of privilege seeking to have the cause transferred to Starr County but failed to designate the precinct in which he resided. His plea of privilege was overruled. No appeal was taken from the order overruling his plea of privilege and the judgment became final. Based upon the record before this court the cause is now pending on the docket of the Justice Court. There is nothing to indicate that Allied has other cases pending against Vargas or that it has taken any default judgments against him.

The present suit was filed in the District Court of Dallas County on October 27,1975, as a class action seeking an injunction. The record reveals that prior to the time the present case was heard on defendant’s motion for summary judgment, the trial court entered an order denying the plaintiff’s application to certify the suit as a class action. Plaintiff did not appeal from that order and, thus, it became final. The matter was heard and disposed by the trial court as if the plaintiff had sued individually for injunctive relief. It is only that phase of the case, therefore, which is relevant to this appeal.

By a single point of error, plaintiff urges that the trial court erred in granting a summary judgment against him on the ground that the trial court incorrectly determined the issues of law in favor of the defendant. Plaintiff states in his brief that there is no fact issue to be determined by a court or jury and that the only issue is one of law for the court. He argues that the undisputed facts show that the defendant violated the provisions of the Act, referred to above, and therefore he was entitled to an injunction by virtue of Section 17.-50(b)(2) of that act which authorizes an individual to seek injunctive relief upon showing a violation of the Act. The defendant has not favored us with a brief. As we view the record, the injunctive relief sought by plaintiff was properly denied.

Section 17.46 of the Act lists twenty deceptive acts or trade practices which are declared to be unlawful. Plaintiff concedes that no provision of the Act specifically declares the filing of suits against consumers in a distant forum to be an unfair trade practice. He contends, however, that because Sec. 17.46(c) of the Act directs the Texas courts when interpreting the Act to be guided to the extent possible by the interpretations given by the Federal Trade Commission to Sections 5(a)(1) of The Federal Trade Commission Act [15 U.S.C. § 45(a)(1)], the courts of this State are bound by the rulings of the Federal Trade Commission. Therefore, he takes the position that since the Federal Trade Commission, in a case styled In the Matter of Spiegel, Inc., has held that the filing of distant forum collection suits violates traditional notions of due process and amounts to an unfair trade practice, the activities of the defendant in the present suit must be held to amount to a violation of the Texas Deceptive Trade Practices Act. Based on this premise he contends that he is entitled to injunctive relief as provided for in the act in order to prevent the defendant from filing future suits against him in a distant forum.

We do not believe that the Federal Trade Commission’s ruling in Spiegel is applicable here because that ruling dealt with interstate transactions where no state venue statute was involved. Even if the ruling were incorporated as a part of the Act in Texas, we do not believe the Act would be controlling because the proper forum for all litigation in this State is regulated by venue statutes.

Venue in the Justice Courts is regulated by Tex.Rev.Civ.Stat.Ann., Article 2390. The pertinent parts of the statute relating to the type of suit involved here reads as follows:

“Every suit in the justice court shall be commenced in the county and precinct in which the defendant . . . resides, except . . .:
“4. Suits upon a contract in writing promising performance at any particular place, may be brought in the county or precinct in which such contract was to be performed . . . .”

While Article 2390 clearly authorizes suits to be filed and maintained against a defendant in a distant forum, its constitutionality is not challenged by this lawsuit. Plaintiff’s sole ground for injunctive relief is based on the notion that the Deceptive Trade Practices Act of this state prohibits the filing of suits against consumers in a distant forum. To hold that the legislature in passing the Deceptive Trade Practices Act intended to grant consumers a right to injunctive relief prohibiting the filing of suits in a distant forum would be to hold that the legislature intended by implication to repeal the above quoted venue provision of Article 2390, even though the Act contains no repealing clause.

As we construe the two statutes, the Deceptive Trade Practices Act is in the nature of a general statute while Article 2390 is a special statute enacted for the sole purpose of regulating venue in the justice courts. In 53 Tex.Jur.2d Statutes section 110, the following rule is stated:

“The enactment of a general law does not ordinarily operate as a repeal of a particular or special law, by implication, though both relate to the same subject matter. On the contrary, both statutes are permitted to stand, and the general law is applicable to all cases not embraced by the specific act. In other words, the particular act is construed as constituting an exception to the general law. This is a settled rule of construction, based on the presumption that a specific statute evidences the intention of the legislature more clearly than a general one, and therefore should control.”

In view of the fact that Section 4 of the venue statute for Justice Courts expressly authorized the plaintiff to institute suit against the defendant in a distant forum in Dallas County, the venue statute must be construed as constituting an exception to the general law found in the Deceptive Trade Practices Act. For this reason, the plaintiff is not entitled to injunctive relief under the Act.

What we have said with regard to plaintiff’s right to injunctive relief in the Justice Courts applies equally as well to his right to injunctive relief against distant forum suits which may be filed against him in the County or District Courts. The forum for litigation in the County and District Courts is regulated by Tex.Rev.Civ.Statutes Ann., Article 1995. The pertinent part of that statute which regulates consumer suits reads as follows:

“5(b) In an action founded upon a contractual obligation of the defendant to pay money arising out of or based upon a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household or agricultural use, suit by a creditor upon or by reason of such obligation may be brought against the defendant either in the county in which the defendant in fact signed the contract, or in the county in which the defendant resides at the time of the commencement of the action. No term or statement contained in an obligation described in this subsection shall constitute a waiver of this provision.”

While the foregoing statute does not prohibit the filing of consumer suits in a distant forum, it affords the consumer the right or privilege to have the suit transferred to the county of his residence or to the county where the contract was signed. To hold that the injunctive relief available under the Act may be used by the plaintiff to prevent the defendants from filing future distant forum suits in the County or District Courts would be to change Sec. 5(b) to read that defendant is prohibited from filing County or District Court suits against plaintiff in any county other than the county of his residence or the county where the contract was made. This would amount to a material alteration of the statute and would constitute an unauthorized intrusion into the legislative process by the judiciary. As stated, the statute regulating venue is a special statute and constitutes an exception to the Deceptive Trade Practices Act. For this reason, the Act, even if the defendant here is in violation, forms no basis for in-junctive relief.

The problems confronting consumers in contesting distant forum suits is ably discussed by Professor Sampson in his article, Distant Forum Abuse in Consumer Transactions: a Proposed Solution, 51 Texas L.Rev. 269 (1973). The question of whether the venue statutes should be revised, as suggested therein, is a matter for the legislature and not the courts.

The judgment is affirmed.

      . 3 Reg.Trade Reporter 20,895 (1975).


text:
    Clyde BREWER et al., Appellants, v. Harold D. MYERS, Appellee.
    No. 985.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 9, 1976.

      J. Preston Brashear, III, Garland, for appellants.
    Michael V. Killough, Killough & Killough, Dallas, for appellee.
   MOORE, Justice.

This is an appeal from a summary judgment. The question to be determined is whether the provision for liquidated damages in a contract for the sale of real estate limits the seller to the retention of a stipulated sum as his exclusive remedy or whether the contract grants the seller an option to seek actual damages sustained by the seller.

Plaintiffs, Clyde and Norma Brewer, brought this suit against defendant, Harold Myers, for damages for breach of contract alleging that Myers entered into a written agreement to purchase from them a house and lot located in Garland, Texas, and that after signing the earnest money contract to purchase the property, the defendant refused to consummate the transaction. The defendant answered by a general denial and, subsequently, filed a motion for summary judgment under Rule 166-A in which he alleged that he had deposited the sum of $200 with an agent of the plaintiffs pursuant to the terms of the earnest money contract; that under the terms of the contract plaintiffs’ exclusive remedy for his failure or refusal to purchase the property was to accept the forfeiture of said earnest money deposit; and that the earnest money deposit had not been returned to him. Plaintiffs did not reply to the motion. The trial court granted the motion and entered a summary judgment that the plaintiffs take nothing. From such judgment plaintiffs perfected this appeal. We affirm.

The evidence is not in dispute. The parties executed the earnest money contract, and the defendant paid the $200 deposit to the agent of the plaintiffs. The defendant failed and refused to purchase the property. Plaintiffs did not return the $200 earnest money, nor did they tender such amount prior to filing the present suit for damages.

Plaintiffs seek a reversal by a single point of error consisting of four subpoints. In the first subpoint, plaintiffs assert that this controversy presents only a law question in that the only issue presented is whether the contract limits the plaintiffs’ damages to the $200 earnest money or whether the contract grants plaintiffs an option to either accept the $200 earnest money or to sue for actual damages. Plaintiffs argue that the provision in the contract stating that seller “shall have the right to retain said cash deposit as liquidated damages” (emphasis supplied), should be interpreted to mean that they have a right to elect between liquidated damages or actual damages. Consequently, they contend that the court erred in interpreting the contract to mean that they have no right to sue for actual damages and entering a summary judgment against them. We agree with the trial court’s interpretation of the agreement and accordingly overrule plaintiffs’ first subpoint.

It is a well settled rule that unless it is ambiguous on its face a written instrument will be enforced as written when neither party asserts that the contract terms are ambiguous so as to necessitate the introduction of extrinsic evidence for its interpretation. Ross v. Burleson, 274 S.W.2d 105, 107 (Tex.Civ.App. — San Antonio 1954, no writ); see Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951). The rule holds true even though the precise meaning of the language used in the contract may be doubtful. Sale v. Contran Corporation, 486 S.W.2d 161, 165 (Tex.Civ. App. — Dallas 1972, writ ref’d n.r.e.); Wynnewood State Bank v. Embrey, 451 S.W.2d 930 (Tex.Civ.App. — Dallas 1970, writ ref’d n.r.e.).

The material parts of the contract in question provide as follows: . . the purchaser has deposited with Mike Lewis Real Estate Escrow the sum of $200 as earnest money and part payment, the receipt of which is hereby acknowledged by said deposit holder . . . .” The contract further provides “In the event Purchaser is the defaulting party, Seller shall have the right to retain said cash deposit as liquidated damages for the breach of this contract.”

It is settled law that in the situation where a contract of sale executed by two parties contains a stipulation to the effect that a sum of earnest money, placed in escrow by the proposed purchaser and in law regarded as liquidated damages, shall be paid to the seller if the seller fulfills his obligations and the purchaser fails to perform his obligation to purchase, the stipulation carries with it the necessary implication that the seller binds himself, by the stipulation, to accept such sum as compensation for his loss resulting from the happening of the contingency named. Having thus bound himself to accept the sum for such damages as may be suffered by reason of nonperformance of the contract on the part of the purchaser, the seller cannot sue the proposed purchaser for actual damages. Moss & Raley v. Wren, 102 Tex. 567, 120 S.W. 847 (1909) rev’g 113 S.W. 739 (1908); Huffhines v. Bourland, 280 S.W. 561, 563 (Tex.Com.App.1926, jdmt. adopted); See generally 17 Tex.Jur.2d Damages secs. 151 & 152.

Here, by the terms of the agreement the parties plainly expressed the intention that upon default by the purchaser, the seller would have a right to retain the cash deposit as liquidated damages. Since the damages were estimated by the parties in advance and were liquidated by agreement, the courts will enforce the provision as written and will not apply a different measure of damages so as to allow the aggrieved party to sue for actual damages. Anderson v. Powell, 381 S.W.2d 365, 366 (Tex.Civ.App. — Dallas 1964, no writ); Allpress v. McGill, 246 S.W.2d 714 (Tex.Civ.App. — San Antonio 1952, no writ); Elliot v. Henck, 223 S.W.2d 292, 295 (Tex.Civ.App. — Galveston 1949, writ ref’d n.r.e.).

We are not impressed with the plaintiffs’ contention that the language in the contract which gives them the “right” to retain the cash deposit means that the plaintiffs have a right to refuse liquidated damages and sue for actual damages. The word “right” as used by the parties in this instance simply means that, upon default by the buyer, plaintiffs would have a “right” to the title of the $200 earnest money. Anderson v. Powell, supra. Had the parties intended to give the plaintiffs the right to refuse liquidated damages and sue for actual damages they could have easily so stated in the contract. As we interpret the contract it means what it plainly says, that is, it provides for liquidated damages. It follows, therefore, as a matter of law, that the contract under its own terms affords no basis for a cause of action for actual damages and the trial court properly disposed of the matter by granting defendant’s motion for summary judgment.

Under their second subpoint, plaintiffs contend, in the alternative, that the contract is ambiguous and therefore creates an issue of fact concerning the intent of the parties. Thus, they argue that the court erred in granting a summary judgment. Plaintiffs argue that the contract is ambiguous because it is not clear whether the parties intended to limit plaintiffs’ recovery to the earnest money deposit as liquidated damages rather than their actual damages. We find no merit in the contention. Nowhere in the pleadings did plaintiffs allege ambiguity, nor did plaintiffs file any summary judgment proof raising the issue of ambiguity. When the cause was submitted to the trial court, plaintiffs elected to stand on the contract as written. As pointed out hereinabove, the fact that the contract provided that the plaintiffs had a “right” to retain the cash deposit does not raise the inference that they had a right to abandon their agreement to accept liquidated damages and sue for actual damages. We do not believe the contract provision in question is ambiguous, but even if it were, in the absence of any pleading of ambiguity or ambiguity on the face of the instrument, the plaintiffs are in no position to contend ambiguity for the first time on appeal. Phillips v. Inexco Oil Company, Inc., 540 S.W.2d 546, 548 (Tex.Civ.App. — Tyler 1976, no writ); Ayers v. Hodges, 517 S.W.2d 589, 592 (Tex.Civ.App. — Tyler 1974, no writ).

Under the third subpoint plaintiffs assert that the court erred in granting a summary judgment because a material issue of fact existed as to whether plaintiffs accepted the $200 earnest money deposited with their agent. In this connection plaintiffs contend that there is no summary judgment proof that they elected to retain the $200 earnest money deposit as liquidated damages. The contention is without merit and is overruled.

The question of whether the plaintiffs elected to retain the deposit as liquidated damages does not constitute a material fact issue. Under the terms of the contract, plaintiffs bound themselves to accept such sum as compensation for their loss resulting from the happening of the contingency named. Plaintiffs cannot escape the obligations of the contract on the ground the liquidated damages were not accepted or retained by them. Consequently, no duty rested on defendants to offer summary judgment proof on the issue.

Plaintiffs waived their fourth and final subpoint by failing to discuss the same in their brief. Rule 418, Texas Rules of Civil Procedure.

The judgment is affirmed.