author: COLEMAN, Chief Justice.

text:
    Roger H. STONER, Appellant, v. Joe Glenn THOMPSON et al., Appellees.
    No. 16866.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 12, 1977.
    Rehearing Denied June 9, 1977.
    Horkin & Horkin, Patrick J. Horkin, Jr., Corpus Christi, for appellant.
    Andrews, Kurth, Campbell & Jones, Hall E. Timanus, Fulbright & Jaworski, David J. Beck, Houston, for appellee, Texas Media Group, Inc.
   COLEMAN, Chief Justice.

This is an appeal from a judgment granting a temporary injunction. The judgment will be reversed.

Roger H. Stoner is the general manager of Radio Station KZFM in Corpus Christi, Texas, which is owned by Texas Media Group, Inc. Mr. Stoner owns 49% of the stock of Texas Media Group, Inc. The remaining stock in the corporation is owned by Joe Glenn Thompson, Frank Geron, Page Nelson, and Raymond Reid. Arnold and Audrey Malkan made a tender offer for all of the stock in Texas Media Group, Inc., or for 51% of said stock. A dispute between Stoner and certain other stockholders concerning the right of these stockholders to sell their stock to the Malkans culminated in the filing of law suits in Nueces County and Harris County. Texas Media Group, Inc. intervened in one of the suits which was filed in Harris County, Texas, seeking a declaratory judgment. Subsequently there was filed an application for a temporary restraining order, temporary injunction, and the permanent injunction. After a hearing the trial court granted a temporary injunction from which action this appeal is taken.

The injunction recites:

. “The reasons for the issuance of the hereinafter set forth injunctive relief are that Texas Media Group, Inc., acting by and through its directors, had a legal right to terminate Roger H. Stoner as general manager and as an employee of Radio Station KZFM in Corpus Christi, Texas, that Texas Media Group, Inc. was thereafter entitled to have Roger H. Stoner remove himself from the premises of Radio Station KZFM, that Texas Media Group, Inc. is entitled to have all of the books, records and other documents of Radio Station KZFM and the corporation turned over to the corporation, and that Texas Media Group, Inc. is entitled to have all books, records and other documents removed by Roger H. Stoner returned to the premises of Radio Station KZFM and into the possession and control of Texas Media Group, Inc. The court is further of the belief that the situation which presently exists is harmful to Texas Media Group, Inc. and its employees including the employees of Radio Station KZFM ...”

Rule 683, T.R.C.P. requires that the reasons for the granting of a temporary injunction must be stated in the order. It is not required that the trial court explain its reasons for believing that the applicant has shown a right for final relief, but it is necessary to give the reasons why injury will be suffered if the interlocutory relief is not ordered. State v. Cook United, Inc., 464 S.W.2d 105 (Tex.1971).

The trial court has recited in detail its reasons for believing that the applicant has shown a probable right to relief and has stated its belief that the situation existing is harmful to the corporation and its employees. The conclusion that the situation is harmful is not a reason why injury will be suffered if the interlocutory relief is not ordered. The failure to include in the order a reason why the court deems issuance of the writ proper for preventing injury to the applicant is reversible error. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953); State v. Cook United, Inc., supra.

The judgment of the trial court is reversed and the temporary injunction is dissolved, with costs of appeal assessed against appellees.

Judgment rendered and opinion filed May 12, 1977.

On Motion for Contempt

An original motion to have Roger H. Stoner held in contempt because of his refusal to obey an order entered by the trial court on December 17,1976 was filed in this court on January 12,1977. The matter was referred back to the district court for an evidentiary hearing. A transcript of the proceedings in the trial court has been furnished this court. We find that the order which Mr. Stoner has refused to obey is not sufficiently specific to be enforceable by contempt proceedings.

On December 10, 1976 in Cause No. 1,091,360 in the District Court of Harris County, Texas, entitled Roger H. Stoner v. Joe Glenn Thompson et al, the court entered an order restraining Roger H. Stoner from denying Texas Media Group, Inc. acting by and through its president, Dr. Frank Gerow, complete control and possession of all books, records and other documents of Radio Station KZFM. The order provided that it would become effective when signed and entered by the court, “provided that Texas Media Group, Inc. shall file with the clerk of this court a bond in the amount of $200,000., with one or more sufficient sureties, approved and conditioned as the law requires, or that Texas Media Group, Inc. shall satisfy any further order of this court pertaining to such bond.”

On December 22, 1976 the court entered an order reducing the bond previously required to the sum of $100,000. An additional provision in the order reads:

“It is further ORDERED, ADJUDGED and DECREED that, prior to the posting of such bond, Applicant, Texas Media Group, Inc., is immediately entitled to have accounts and auditors of its choice inspect the books and records of Texas Media Group, Inc. and Radio Station KZFM in Corpus Christi, Nueces County, Texas to satisfy the bonding company concerning the aforementioned bond.”

By the motion filed in this court Texas Media Group, Inc. alleges that Roger H. Stoner was general manager of the radio station and had physical control over the premises of Radio Station KZFM and over the books and records of the station. It is alleged that he refused to allow the duly elected officer of the corporation to examine the books and records of the radio station and that his conduct renders him in contempt of the court’s order of December 22, 1976.

The problem which we face is not unique. The Supreme Court of California in Hotaling v. Superior Court, 191 Cal. 501, 217 P. 73 (1923) stated:

. “If, in the Dewey Case, [Dewey v. Superior Court, 81 Cal. 64, 22 P. 333], a command to remove the dam could not be implied from a decree enjoining the further maintenance thereof, certainly in the instant case a command to transfer the stock on the books to the Union Trust Company is not to be implied from a purely declaratory adjudication that Mrs. Hotaling is the owner and entitled to the possession thereof. That case, which has never been overruled, stands as express authority for the rule that, to constitute a constructive contempt of the sort here claimed, there must have been an ‘omission to perform an act which has been required by the terms of the original order.’ The terms of the order here relied upon do not expressly require the performance of any act. They merely declare the fact of the ownership of the stock. There is a complete ‘omission of all words of a mandatory character. ..."

The Georgia rule was stated in an opinion of the Supreme Court in the case of Wilson v. Chumney, 214 Ga. 120, 103 S.E.2d 552 (1958) in these words:

“An order or judgment which merely declares the rights of the parties without an express command or prohibition is not one which may be the basis for a contempt proceeding or the failure to comply therewith . . . ”

No Texas case has been called to our attention in which this precise question has been presented. In Ex parte Slavin, 412 S.W.2d 43 (Tex.1967), the court said:

“It is an accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him . . . ”

In support of the rule quoted above the Supreme Court cited and quoted from Ex parte Duncan, 42 Tex.Cr.R. 661, 62 S.W. 758 (1901). The quotation reads:

. “Where the court seeks to punish either by fine, arrest, or imprisonment for a disobedience of an order or command, such order or command must carry with it no uncertainty and must not be susceptible of different meanings or constructions, but must be in the form of a command, and, when tested by itself, must speak definitely the meaning and the purpose of the court in ordering . ” (emphasis added).

The order in which we are here concerned does not prohibit Roger H. Stoner from interfering with Texas Media Group, Inc. in having its records inspected by an accountant of its choice. Neither does it require Roger Stoner to deliver the records up to the president of Texas Media Group, Inc. as did the previously issued temporary injunction, which is not effective because of the failure of the corporation to post the required bond. The order merely declares the rights of the corporation; it does not define the duties imposed upon Mr. Stoner or the acts which he is restrained from doing. The order is not enforceable by contempt pleadings. Ex parte Butler, 523 S.W.2d 309 (Tex.Civ.App.—Houston [1st], 1975); French v. Pobst, 203 Va. 704, 127 S.E.2d 137 (1962).

The motion of Texas Media Group, Inc. to hold Roger H. Stoner in contempt is denied.

Motion for Contempt refused and opinion filed May 12, 1977.


source: Caselaw Access Project

author: REYNOLDS, Justice.

license: Public Domain

text:
    Alton R. TAYLOR, Appellant, v. H. C. LEWIS, Individually and as Independent Executor of the Estate of Elaine Lewis, Deceased, Harold Chapman and Ray Chapman, Appellees.
    No. 8748.
    Court of Civil Appeals of Texas, Amarillo.
    May 16, 1977.
    Second Rehearing Denied June 13, 1977.

      Smith & Baker, Inc., Edward R. Smith, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, J. Orville Smith and Cecil C. Kuhne, Lubbock, for appellees.
   ON MOTION FOR REHEARING

REYNOLDS, Justice.

In affirming the trial court’s judgment on original consideration, we held that the record failed to reflect that certain of appellant’s points of error were preserved for review. Accompanying appellant’s motion for rehearing is appellees’ concession of a procedural correctness that, together with our erroneous computation as to the time the judgment became final, causes us to withdraw our 18 April 1977 opinion, together with the resulting judgment, and to substitute the following:

Plaintiff Alton R. Taylor failed to convince a jury that he became a partner with defendants H. C. Lewis, Harold Chapman and Ray Chapman in a motel venture or that the defendants had breached his employment agreement. Because no reversible error is presented, we affirm the trial court’s take-nothing judgment.

Harold Chapman and Ray Chapman owned land in Lubbock, Texas, on which contractor H. C. Lewis was to construct the Lubbock Inn Motel. Considering the land and construction at cost, the Chapmans were to own fifty per cent and Lewis was to own the other one-half of their partnership venture.

As the construction was beginning in November of 1971, Alton R. Taylor expressed to Harold Chapman his interest in managing the motel. After a series of meetings, it was orally agreed that Taylor would manage the motel. For his management services, Taylor was to be furnished an automobile, was to receive a salary of $800 each month during the construction, a $1,000 monthly salary after the motel opened, and at such time as there were profits, Taylor was to receive ten per cent of the profits to be applied toward the purchase of a ten per cent interest in the motel as determined by the cost of the land and the construction.

Taylor began his services in January of 1972. The Lubbock Inn Motel became operational in September of that year. The operation had not produced any net profits up to 21 May 1973 when, upon execution of an agreement between the parties, Taylor ceased to manage the motel. The agreement, reciting that a dispute has arisen whether Taylor is a partner and has properly managed the Inn and that defendants demand that Taylor relinquish management, provides that Taylor, upon receipt of his accrued salary and without recognizing the propriety of the demand, shall peacefully relinquish management without waiving any of his rights.

Thereafter, Taylor filed this suit against H. C. Lewis, individually and as independent executor of the estate of Elaine Lewis, deceased, and the Chapmans to establish the existence of a partnership and for an accounting, settlement and winding up of the partnership affairs. Alternatively, he sought damages for breach of his employment agreement.

The litigants are in accord with respect to their basic understanding, which is merely an executory agreement to form a partnership in the future when the condition precedent — i. e., the realization of net profits — is fulfilled. Buzard v. McAnulty, 77 Tex. 438, 14 S.W. 138, 139 (1890). Notwithstanding, Taylor contends, and the defendants deny, that they intended, as shown by their expressions and implied from their conduct and the surrounding circumstances, to enter into a relationship which included the essential elements of a partnership so that, in fact, their association became a partnership. See Howard Gault & Son, Inc. v. First National Bank of Hereford, 541 S.W.2d 235, 237 (Tex.Civ.App.—Amarillo 1976, no writ).

To evince the partnership, Taylor produced evidence that he left a job of long standing to go with defendants at a sacrifice in regular monthly income, hoping and expecting to make some money in the new venture. He went to Chicago to purchase furniture with the defendants, who publicly referred to him on occasions in Lubbock as a partner. He and defendants signed applications for a beverage cartage permit, a mixed beverage permit, a mixed beverage late hours permit, a sales tax permit and a caterer’s permit in which he was listed as a partner as well as in the permits issued pursuant thereto. Taylor was shown as an owner in an application' for a store license. Three newspaper items referred to him and the defendants as either the builders or operators of the motel and none of the defendants voiced any objection. He, together with the defendants, executed a bank renewal note in the sum of $200,000 for interim financing of the motel. He was listed on a certificate of assumed name supplement as one of the parties conducting the business of The Lubbock Inn. An insurance policy issued to the Lubbock Inn as a partnership showed Taylor to be one of the partners. Although he was reported on the quarterly employer’s reports for 1972 as an employee, he was not so reported for 1973. In the United States Partnership Return of Income for 1972, he was listed as a partner with a ten per cent interest in the net operating loss of The Lubbock Inn. The general ledger of the motel showed him as a partner and the stubs for the checks issued to him in 1973 were marked “Partner’s Withdrawal.”

Taylor acknowledged that the agreement failed to provide what should be done in the event of a loss instead of a profit and failed to provide a date for the conveyance of his ten per cent interest. Although he said it was “discussed” that he might “buy in” by assuming ten per cent of the indebtedness if defendants were able to borrow the money for the entire project, he did not testify that such was a part of the agreement between the litigants.

It was the defendants’ position that their basic agreement was never changed; that there was no agreement, and no testimony by Taylor, or anyone else, that he could become a partner simply by assuming ten per cent of the partnership debts; and that the relationship never ripened into a partnership with Taylor. Their testimony was that Taylor was included on the liquor applications because they were advised the Liquor Control Board required everyone with an interest, direct or indirect, to be shown, and Lewis was of the opinion that Taylor had the applications for the liquor permits, as well as the applications for the store license and sales tax permit, filled out. The county clerk prepared the certificate of assumed name supplement. The accountant who prepared the tax return stated he never was told by defendants that Taylor was a partner, and he prepared the return showing Taylor as an income tax partner without any concern whether he was a legal partner. There was testimony that Taylor signed the bank renewal note at the request of the banker; that no one told the banker that Taylor was a partner; that the designation “partner,” which was adjacent to the signatures of the signing defendants, was not placed by Taylor’s signature on the note; that the bank note was paid, but that Taylor made no payment on the note; and that Taylor did not execute the original bank note or the final note for $1,550,000 to finance the motel venture.

It was the testimony of Harold Chapman that he and Taylor never used the word “partnership” and Taylor never claimed to be a partner before May of 1973. He further said that neither he nor, so far as he knew, any of the other defendants, had any knowledge that the motel books showed, or authorized the books to be changed to show, Taylor’s salary as a partner’s withdrawal account. Ray Chapman’s summary of the relationship was: “We assumed that sometime down the road that when we got the thing finished we would establish a purchase price and by that time he [Alton Taylor] would either give us a note for a hundred and fifty or sixty-five thousand, 10 per cent of whatever the thing cost, or have something to work into to let his bonus apply on the purchase of, but a partnership was never mentioned, it wasn’t thought of in that sense.”

Alternatively, Taylor pleaded a “wrongful discharge” generally; he did not plead that his employment was for a definite period of time or that there were specific contractual limitations on discharge. Taylor acknowledged that nothing had been said in the pre-employment discussions about defendants’ right to fire him at any time or his right to quit at any time. After mentioning some problems of operation of the motel, Taylor stated that on or about 15 or 16 May 1973, Ray Chapman made objections to the operation and finally said, “If this thing isn’t changed, we want you to leave;” and then added, “The fact of the business, we do want you to leave.” Taylor asked, “When?” He was told, “The sooner the better.” When asked by his counsel, Taylor responded that he did not quit, but that he was fired.

The Chapmans testified that no term of Taylor’s employment was discussed or agreed on. Harold Chapman, with whom Taylor first discussed management employment but who was not present when the relationship was terminated stated that, regardless of the recitations in the 21 May 1973 agreement, Taylor was not discharged, but that he quit. On this issue, Lewis’ testimony was that, although there was cause to discharge Taylor, he gave no ultimatum to Taylor, that he neither demanded nor participated in making any demand that Taylor leave, and that Taylor was not fired. Ray Chapman reported that in the 14 or 15 May 1973 conversation with Taylor about Taylor’s management shortcomings, Taylor became irritated and said, “If you think you can get somebody else to run this place better, you ought to do it.” Ray Chapman testified that he did not reply that Taylor was fired, but said, “I think it’s come to that point, Alton,” adding that some time would be needed to find a replacement.

Taylor failed to convince the eleven jurors who signed the verdict that he became a partner with Lewis and the Chapmans. Although these jurors found that Lewis and the Chapmans agreed to employ Taylor, they found there was no specific period of employment and failed to find that Taylor was discharged from his employment. From the trial court’s take-nothing judgment Taylor has appealed, designating six points of error.

By his points three and five, Taylor respectively contends that the court erred in failing to direct a verdict as to the existence of a partnership and that he was discharged by defendants. Because Taylor had the burden of proof on these two issues, an instructed verdict would have been proper only if he established a partnership or a wrongful discharge as a matter of law; otherwise, if there is any conflicting evidence of a probative nature, the determination of the issues was for the jury. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422, 425 (1952).

With respect to point three, the Texas Uniform Partnership Act, Vernon’s Ann. Civ.St. art. 6132b (1970), defines, in § 6(1), a partnership as an association of two or more persons to carry on as co-owners a business for profit, and sets forth, in § 7, the rules that shall apply for determining the existence of a partnership. Clearly, from these requisites, persons who intend to do the things that constitute a partnership are partners whether their expressed purpose was to create or avoid the relationship. Howard Gault & Son, Inc. v. First National Bank of Hereford, supra, at 237.

In connection with both points, Taylor argues that the acts, words and conduct of the parties establish as a matter of law the intent of the parties that he be a partner, and that the 21 May 1973 agreement establishes conclusively that he was discharged. For the reason that we must indulge every inference that properly may be drawn from the evidence against the instruction of a verdict, Echols v. Wells, 510 S.W.2d 916, 919 (Tex.1974), we cannot say that the issues were established as a matter of law. The evidence upon the issues, which has been previously summarized, was conflicting and resulted in fact issues which were properly submitted to the jury for determination. Points three and five are overruled.

The jury answered “No” to the first special issue asking whether Taylor became a partner with Lewis and the Chapmans at some point in time after his employment and prior to 21 May 1973. In submitting this issue, the court, as a part of its instruction, advised the jury that:

By the term “partnership” is meant a relationship between two or more persons where there is a common enterprise and a community of interest as co-owners therein, a prosecution of the common enterprise for the joint benefit of the parties, and a right of each of the parties to participate to some extent in the profits as such and an obligation of each of the parties to bear some portion of the losses, if any, sustained in the business. (Emphasis added.)

During its deliberation, the jury submitted to the court this question: “Would an expansion or definition on ‘Co-Owners’ be possible?” Counsel for Taylor requested the court to clarify the term by instructing the jury that “it was not limited to those who contributed property but included also those who became Co-Owners by reason of contribution of services.” The court declined to so instruct, but instead instructed the jury that “no further definition would be given.”

These actions by the court prompt Taylor’s first point of error, a multifarious one. It embraces, as shown by his argument and an examination of the cited authorities, two contentions: first, the court erred in including the words “as co-owners” in the definitional instruction without certain qualifications of its meaning; second, the court erroneously refused to define “co-owners” at the jury’s request.

Taylor is not in a position to complain that the court did not define the word “co-owners” in its charge. When the court did not define the word, Taylor was required by Rule 279 to tender in writing a substantially correct definition to preserve his complaint. Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1002 (1944). Rather than submitting a substantially correct definition, Taylor merely asserted that the court should clarify the distinction between ownership of assets belonging to the partnership and ownership of an interest in the partnership itself that was implied by use of the word “co-owners.” Under these circumstances, the failure to tender a substantially correct definition as a part of the requested instruction waived the complaint now made. Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312, 313-14 (1944).

Moreover, it was not incumbent upon the court, and especially so in the absence of a valid predicate, to define the term “co-owners” in its charge. While the court is obligated by Rule 277 to “submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict,” the rule ordinarily operates to require a definition of only those words or phrases given a distinctive meaning by law. Miller v. Watson, 257 S.W.2d 839, 841 (Tex.Civ.App.—Dallas 1953, writ ref’d n. r. e.). The word “owner” is one of common use having no special legal or technical meaning apart from its ordinary acceptation and, therefore it need not be defined. Pritchett v. Highway Insurance Underwriters, 158 Tex. 116, 309 S.W.2d 46, 49 (1958). The prefix “co-” is, according to Webster’s New International Dictionary (2nd Ed.), used with nouns to mean “with; together; joint.” The combination of the two, then, has no meaning other than the common meaning of joint owners or owners together. So, generally, the term needs no definition for the juror of average intelligence, who would be presumed to construe the use of the word in its usual and ordinary sense.

Rule 286 does provide that the jury, after it retires, “may receive further instructions of the court touching any matter of law” at its request. The reason for the jury’s'request for an expansion or for a definition of the word “co-owners” is neither apparent from the wording of its request as was the situation in Stacks v. Rushing, 518 S.W.2d 611, 613 (Tex.Civ.App.—Dallas 1974, no writ), nor stemmed from an error obvious on the face of the charge as was the circumstance in Missouri Pacific Railroad Company v. Cross, 501 S.W.2d 868, 870 & 873 (Tex.1973). Nevertheless, once the jury made its request, it indicated the jury was seeking guidance in rendering a verdict and, consistent with the rules, it became proper — i. e., suitable, right, appropriate — for the court to affirmatively, and not negatively, respond. The court could have responded, as the court did in Southwestern Greyhound Lines, Inc. v. Dickson, 219 S.W.2d 592, 594 (Tex.Civ.App.—Austin 1949, no writ), that the term was used in the issue in its usual and ordinary meaning, or the court could have given the definition of the term.

The refusal to affirmatively respond to the jury’s request invokes the inquiry whether the error amounted to such a denial of Taylor’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. As the only evidence thereof, Taylor refers to the affidavits of jurors attached to his motion for judgment non obstante veredicto. Those instruments show, so Taylor says, that when the court refused to expand upon the meaning of “co-owners,” at least three jurors who had originally voted to answer special issue no. 1 “Yes,” accepted the interpretation of some jurors that one could not become a co-owner simply by reason of services when others had contributed property, and voted to answer the issue “No.” We may not consider the affidavits. They are hearsay and are not evidence of the matters stated therein, Shelby Biscuit Company v. Robbins, 417 S.W.2d 645, 647 (Tex.Civ.App.—Waco 1967, writ ref’d n. r. e.), but only serve to particularize the evidence to be elicited on a hearing before the court. Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644, 646 (1942). The record is devoid of any hearing at which the affiants testified to the matters stated in the affidavits.

The most that can be said is that the refusal to affirmatively instruct left the jury free to misconstrue the usual and ordinary meaning of the phrase “as co-owners.” It is settled, however, that a misconstruction of the court’s charge does not of itself authorize the setting aside of the court’s judgment. Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364, 367-68 (1956). See, also, Compton v. Henrie, 364 S.W.2d 179, 184 (Tex.1963), and authorities there cited. The jury’s failure to find that Taylor became a partner is not, as later discussed, so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Accordingly, it does not reasonably appear from this record that the court’s failure to affirmatively respond to the jury’s request was such an error that was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434. The first point is overruled.

During the pendency of the cause, Taylor directed requests for admissions of fact “within ten days after service” to each defendant individually and, on the same day, submitted the same requests to all defendants jointly. Primarily, the requests were for admissions concerning the defendants’ states of mind in making and filing federal income tax returns for 1972 allocating a loss to Taylor as a partner, and in designating him as a partner in a sales tax permit application. More than half of the admissions sought in each request were conditioned on answers that might be made to other admission requests.

Each defendant filed answers to the requests directed to him individually on the twenty-first day after he was served and approximately two and one-half years before trial. The defendants did not file a reply to the requests directed to them jointly-

After the trial commenced, Taylor orally moved the court to deem admitted all requests because the individual responses were not made within the time he specified and the request for joint admissions was unanswered. The trial court overruled the motion and refused to deem the matters admitted. This action is the subject matter of Taylor’s second point, the crux of his argument being that Rule 169 requires the admissions requested.

Rule 169 was designed, not as a trap to prevent the presentation of the truth in a full hearing but as a tool for the fair disposition of litigation with a minimum of delay. Bynum v. Shatto, 514 S.W.2d 808, 811 (Tex.Civ.App.—Corpus Christi 1974, no writ); Gordon v. Williams, 164 S.W.2d 867, 868 (Tex.Civ.App.—Eastland 1942, writ ref’d w. o. m.). Thus, the court has considerable discretion whether to apply the sanctions authorized by Rule 169, and the ruling of the court will be disturbed only upon a showing of a clear abuse of that discretion. Schindler v. Ag Aero Distributors, Inc., 502 S.W.2d 581, 584 (Tex.Civ.App.—Corpus Christi 1973, no writ), and cases there cited. Under this record and aside from the fact that deeming all of the requests admitted would result in contradictory admissions, we perceive no abuse of discretion sufficient to disturb the court’s ruling.

Rule 169 allows “not less than ten days after delivery” of the request for a response; consequently, Taylor’s demand for responses “within ten days after service” was defective for not following the requirements of the rule. Bynum v. Shatto, supra, at 810-12. Absent his allowance of at least the minimum time mandated by the rule for a response, Taylor has not shown the court clearly abused its discretion in refusing to deem admitted the requests answered twenty-one days after service and some two and one-half years before trial. Accord, Bickel v. American Trust Life Insurance Company, 468 S.W.2d 873, 875 (Tex.Civ.App.—Eastland 1971, writ ref’d n. r. e.).

The unanswered requests directed to the defendants jointly to secure admissions as to the state of mind of the defendants consisted of the identical admissions, albeit with some variations in wording, which were requested of, and answered by, each defendant individually. Because admissions serve as evidence in lieu of the testimony of witnesses, 2 McDonald, Texas Civil Practice § 10.06 (1970), the demand should be for admissions of relevant and material evidentiary facts within the knowledge of the opposing party and not for inadmissible opinions. White v. Watkins, 385 S.W.2d 267, 269 (Tex.Civ.App.—Waco 1964, no writ). While a witness may testify to his own intention and state of mind where the same is material, Hamburg v. Wood, 66 Tex. 168, 18 S.W. 623, 625 (1886), the courts uniformly exclude the offer of testimony by a witness as to another person’s state of mind where the conduct and other circumstances from which the witness would draw his inference of the other’s state of mind could be so communicated to the jury that they would be equally well equipped to draw the inference. See 2 C. McCormick & R. Ray, Texas Law of Evidence § 1428 (2d ed. 1956), and authorities there cited. Here, the same requests made to the defendants individually were answered, the documentary evidence was introduced and the witnesses testified before the jury. The request for joint admissions bearing on the state of mind of others runs afoul of legal principles and, particularly under the circumstances of this cause, should not be deemed admitted facts. White v. Watkins, supra. It follows that we cannot say that the court clearly abused its discretion in refusing to deem admitted the admissions requested but unanswered. The second point is overruled.

Taylor utilizes his fourth point of error to submit that the jury's failure to find he became a partner with the defendants is against the great weight and preponderance of the evidence. The particulars of the documentary evidence and the testimony earlier noticed, together with related testimony by other witnesses, were before the jury. It was for the jury, as the finder of facts, to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve the conflicts and inconsistencies in the testimony. To this end, the jury was privileged to believe all or part or none of the testimony of any one witness. Esteve Cotton Company v. Hancock, 539 S.W.2d 145, 158 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.). We have, as Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973), directs we must, weighed all of the evidence. Given the controlling legal principles, we cannot say, with due deference to the jury’s prerogative, that the jury’s failure to find that Taylor became a partner is so against the great weight and preponderance of the evidence as to be manifestly unjust. The fourth point is overruled.

Point six is drafted to complain of error in submitting special issue no. 8, one of the issues submitted relative to Taylor’s cause of action for wrongful discharge. It was the issue inquiring whether, and the one in response to which the jury found that, the litigants did not agree on a specific period as the duration of Taylor’s employment.

The point lists three grounds for the error, but Taylor, citing Gulf Insurance Company v. Hodges, 513 S.W.2d 267 (Tex.Civ.App.—Amarillo 1974, no writ), argues only that the issue should not have been submitted because it is an inferential rebuttal issue. Hodges does hold that an inferential rebuttal issue should not be submitted, but Taylor did not voice this objection to the trial court in his objections to the court’s charge. Therefore, the point, as it is briefed and argued, was not preserved for appellate review. Rules 272 and 274; Marino v. Vigilant Insurance Company, 523 S.W.2d 518, 520 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ). Moreover, it is unnecessary to resolve the validity of the point. When Taylor failed to convince the jury that he was discharged and did not attack the answer as being against the great weight and preponderance of the evidence, his cause of action for wrongful discharge was at an end and the error, if any, in submitting special issue no. 8 became immaterial. Stout v. Rhodes, 373 S.W.2d 94, 96 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.). Cf. Tex-Jersey Oil Corporation v. Beck, 157 Tex. 541, 305 S.W.2d 162, 165 (1957).

Taylor’s motion for rehearing is overruled. The judgment of the trial court is affirmed.

      . Except for the inclusion of the words “as co-owners,” the definition given by the trial court has been approved both before and after the 1 January 1962 effective date of the Texas Uniform Partnership Act as embodying all of the elements necessary to constitute a partnership. See Cavazos v. Cavazos, 339 S.W.2d 224, 226 (Tex.Civ.App.—San Antonio 1960, writ ref’d n. r. e.), and Conrad v. Judson, 465 S.W.2d 819, 826 (Tex.Civ.App.—Dallas 1971, writ ref'd n. r. e.), cert. denied, 405 U.S. 1041, 92 S.Ct. 1312, 31 L.Ed.2d 582 (1972).

      . All rules cited are the Texas Rules of Civil Procedure.


author: WALTER, Justice.

text:
    Oliver A. HOWLAND, Appellant, v. J. T. HOUGH, Jr. et al., Appellees.
    No. 5030.
    Court of Civil Appeals of Texas, Eastland.
    May 19, 1977.
    Rehearing Denied June 23, 1977.
    Vernon M. Pfluger, Ferguson & Ferguson, Austin, for appellant.
    Forrest N. Troutman, Troutman & Hill, Austin, for appellees.
   WALTER, Justice.

Oliver A. Howland filed suit against J. T. Hough, Jr. and wife, Lucille, in Trespass to Try Title covering 8.36 acres in Travis County. He also pleaded the 3, 5,10 and 25 year Statutes of Limitations and prior possession. Hough and wife pleaded “Not Guilty” and the 3, 5, 10 and 25 year Statutes of Limitations. Defendants also pleaded they had made valuable improvements on the property and that these improvements had a value in excess of $10,000.

The jury found (1) that plaintiff, How-land, did not have exclusive, peaceable, continuous and adverse possession of the land in controversy for a period of 10 years prior to the time of filing this lawsuit on October 15,1974; (3) that plaintiff, Howland, was in possession of the land in controversy prior to February 25, 1974; (4) that Hough and wife did not have exclusive, peaceable, continuous and adverse possession of the land in controversy for a period of 10 years prior to the filing of this lawsuit on October 15, 1974; (5) that J. T. Hough and wife were possessors in good faith of the land in controversy for at least one year next before the commencement of this lawsuit on October 15, 1974; (6) that defendants, Hough and wife, made permanent and valuable improvements on said land during the time they had possession; (7) at the time of trial there was a house, a mobile home, a storage building and a utility building on said land; (8) the value of such improvements was $17,800; (9) the difference between the value of the land in controversy with the improvements and the value without the improvements is $17,800; (10) that Hough and wife made permanent and valuable improvements on said land without the intent to defraud; (11) the improvements enumerated above are presently on the land in controversy; and (12) the improvements can be removed without substantial and permanent damage to the land.

The court entered a judgment that plaintiff take nothing and he has appealed.

Howland purchased 100 acres out of the J. O. Irwin (Erwin) Survey in Travis County, Texas, from C. F. Williams and wife, Vera R. Williams, on April 30, 1946 which was recorded in the Deed Records of Travis County on May 1, 1946. The patent shows this as the James O. Irvine Survey. How-land contends the disputed tract of 8.36 acres formed the northeasterly portion of the 100 acre tract.

Howland introduced his deed from Williams as his exhibit number 9. He also introduced exhibit number 13 which is a map showing the disputed tract and some of the surrounding lands. The land in dispute had been marked with an “X” on plaintiff’s exhibit number 13.

The statement of facts contains the following:
“THE COURT: Let me ask the witness to do something. For the benefit of the Court and Jury, take this blue wax pencil — I don’t have a ruler — and draw onto that Exhibit No. what—
THE WITNESS: 13.
THE COURT: —13 where the land would lie that has just been described to you by metes and bounds from — in your reading from Plaintiff’s Exhibit No. 9. Will you do that for us so we’ll know what we’re talking about?
THE WITNESS: (Witness doing same).
Q Mr. Steager, would you also indicate with that blue marking pencil where the disputed tract is on this map?
A (Witness doing same).
THE COURT: Containing eight point what?
MR. TROUTMAN: To the point where we estimated where this line should be, it contains 8.36 acres — okay—approximately-
Q All right. Now, Mr. Steager, when you examined Plaintiff's Exhibit No. 13, can you testify to this Jury that the little spot of land that you have marked with án ‘X’ is contained within the other blue lines that you have marked on that Plaintiff’s Exhibit No. 13?
A No, sir, it’s not contained within the blue lines.
THE COURT: In other words, the acreage which you have designated with an ‘X’ containing approximately 8.36 acres is not contained within the field notes of Plaintiff’s Exhibit No. 9? Am I correct in the stated—
THE WITNESS: Yes, sir.
THE COURT: —proposition?
THE WITNESS: It does not fall within the field notes as written.”

Charles Steger, a registered professional engineer, testified substantially as follows:

Plaintiff’s exhibit number eleven is a plat I prepared from an actual survey on the ground of the Howland land as we interpreted it to be fenced or occupied in 1973 when we made the survey.
Steger was asked:
“Q Now, if you were to invert the call we spoke of, would that area shown on Plaintiff’s Exhibit No. 11 be contained within the Howland deed?

And he answered:

“A The way I inverted it, this portion here would be.”

Steger continued as follows:

By inverting the call a portion of the disputed tract would be in the Howland tract.

The Court asked the question:

“THE COURT: Well, how much of the 8.36 acres under the inversion would be included within the Howland tract? Steger answered:
“THE WITNESS: The lower — I’d say lower 60 percent.”

Steger continued to testify as follows:

To a certain extent Mr. Howland assisted me in locating his corners and telling me what land was his, but was not with us while we were surveying his land.

In Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961), the court said:

“It has long been the rule in this State that in a trespass to try title suit, the plaintiff must recover upon the strength of his own title. Kauffman v. Shellworth, 64 Tex. 179; Hovel v. Kaufman, Tex.Com.App., 1926, 280 S.W. 185; Davis v. Gale, 1960, 160 Tex. 309, 330 S.W.2d 610. If the plaintiff under the circumstances fails to establish his title, the effect of a judgment of take nothing against him is to vest title in the defendant. The rule is a harsh one, but it also has been well established as a rule of land law in this State. French v. Olive, 1887, 67 Tex. 400, 3 S.W. 568; Permian Oil Co. v. Smith, 1934, 129 Tex. 413, 73 S.W.2d 490, 111 A.L.R. 1152.”

Prior to the instant suit, Judy Johnson filed a lawsuit against J. T. Hough and Oliver A. Howland in Travis County in which Howland filed an answer. In his prayer, he pleaded:

“WHEREFORE, premises considered, Defendant prays judgment of the Court, declaring that the land shown as Exhibit “D” of Plaintiff’s Original Petition be all of the land owned by Defendants J. T. Hough and wife, Lucille Hough in the Irvine or Howlett surveys in Travis County, Texas; further that Defendant Oliver A. Howland be declared to be the owner of that certain tract of land described in the deed from C. F. Williams and wife, Vera R. Williams to Oliver A. Howland, dated April 30,1946, of record in Vol. 793, Page 101, of the Deed Records of Travis County, Texas, and that title to such land be quieted in him and that the cloud existing thereon by reason of the claim of J. T. Hough and wife, Lucille Hough, be in all things removed; that Defendant have all other relief, specific and general, to which he may be entitled, together with his costs in this behalf expended.

This case was dismissed for want of prosecution on June 15, 1972.

At the time of trial, the Houghs lived on the disputed tract which is described as 11702 Four Iron Drive and received water from the city and electricity from LCRA. Hough introduced a deed from Jesus Garcia to the first 10 acres he purchased in January, 1947. Hough purchased a sales contract dated July 27,1945, that a Mr. Adams had with Garcia to purchase the disputed area between his first 10 acres he purchased from Garcia and the Nehring property.

Hough introduced another deed from Garcia which purported to convey the first ten acres he purchased from Garcia and the disputed tract dated January 18, 1954.

Hough testified substantially as follows:

Howland never argued the situation when I told him I owned the land. It wasn’t until 1958 that he did anything about it when he filed on me in connection with this other case. From 1947, I have paid all the taxes except for 1975.
Mr. Howland and I were involved in the same dispute in the Judy Johnson lawsuit as we are involved in today. Just before the time the Judy Johnson suit was filed, I cleared the property because I intended to build a house and I decided to sell in 1968 so I quit. It was after I signed a contract to sell the lawsuit was filed.
I started clearing the property “immediately after this suit had been throwed out of court that he had against me because the understanding I got was that that was it.” I cleared it, started putting improvements on it and moved a mobile home in about September, 1973. From 1954 up until today, I have used and occupied the disputed tract.

In order to establish prior possession, Howland had the burden of establishing he was in actual possession of the disputed tract which was exclusive and peaceable. Land v. Turner, 377 S.W.2d 181 (Tex.1964).

In Land v. Turner, supra, the court said:

“One who does not prove that his possession was disturbed by another’s entry has the burden to prove that he did not abandon his possession.”

Howland was not in actual possession when he was ousted by the Houghs, and the record does not show as a matter of law that he did not abandon the possession he was claiming under his deed from Williams and no issues were submitted on abandonment. “But there must be prior actual possession to initiate ‘prior possession’ in trespass to try title.” Land v. Turner, supra. How-land cannot recover under prior possession because the evidence shows he was only in constructive possession of the disputed tract under the Williams deed which we have held was ineffective to convey the disputed tract.

In Land v. Turner, supra, it is also said:

“To recover in trespass to try title, the plaintiff must recover upon the strength of his own title. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961). He may recover by (1) proving a regular chain of conveyances from the sovereign, (2) by proving a superior title out of a common source, (3) by proving title by limitations, or (4) by proving prior possession, and that the possession had not been abandoned. Prior possession has other ramifications, but we are here dealing with alleged possession by Turner under a deed (though the deed was ineffectual as a conveyance as to the 44 acres), and a trespasser, Land.”

We hold Howland has failed to discharge his burden of establishing his title by a regular chain of conveyances from the sovereign. He has failed to establish he is entitled to the disputed tract upon the strength of his own title.

Appellant contends the court erred by refusing to admit into evidence the deed from the Houghs to Mitchell Wong dated October 8, 1973. Appellant contends the deed was admissible because it contained an admission against the interest of the Houghs and was an admission inconsistent with their position at the time of trial.

At the time of trial, Houghs were claiming the disputed tract and in the deed they executed to Wong they recognized it as belonging to Howland by inserting a call in the deed as follows:

“THENCE along the North line of the said Hough tract and a South line of the Oliver Howland tract as recorded in Yol. 793, Page 100, Deed Records of Travis County, Texas, N 71 deg. 00' E for a distance of 478.67 feet to an iron stake in the West line of Balcones Country Club Road.” (Emphasis added)

In Davis v. Breithaupt, 427 S.W.2d 666 (Tex.Civ.App.—Austin 1968, writ ref. n. r. e.), the court said:

“. . . Evidence of conduct by a party to a lawsuit which is inconsistent with his present position may be be introduced in evidence against the party as an admission. Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651 (1952); Cheshire v. Dow Chemical Co., 319 S.W.2d 358 (Tex.Civ.App.—Waco 1958, writ ref’d n. r. e.) . . . ”

See also 2 McCormick & Ray, Texas Evidence § 1141 (2nd ed. 1956).

By refusing to admit into evidence the Wong deed, the court committed reversible error because this evidence was material and relevant to the causes of action pleaded by appellants.

The judgment is reversed and the cause is remanded.


author: MOORE, Justice.

text:
    STATE of Texas, Appellant, v. ESTATE of Mrs. J. A. LOOMIS, Deceased, Appellee.
    No. 1019.
    Court of Civil Appeals of Texas, Tyler.
    May 19, 1977.
    Rehearing Denied June 23, 1977.

      John L. Hill, Atty. Gen., Anthony J. Sad-berry, Asst. Atty. Gen., Austin, for appellant.
    Alma L. Lopez, San Antonio, for appellee.
   MOORE, Justice.

This appeal calls for an interpretation and construction of the last sentence of Section 38(a)(4) of the Texas Probate Code which reads as follows:

“If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course: To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.” (Emphasis supplied.)

Mrs. J. A. Loomis a/k/a Sue A. Loomis died intestate on the 18th day of May 1974 and was not survived by a husband, children, father, mother brothers or sisters. The paternal grandparents both predeceased Mrs. Loomis, leaving no descendants. On the maternal side, both grandparents were deceased at the time of the death of Mrs. Loomis, but left surviving them thirty-one persons as their descendants.

On December 11, 1975, an application to declare heirship was filed by the administrator of the estate of Mrs. Loomis and proper notice was given. The administrator alleged that thirty-one maternal heirs were known to be living but after an extensive search he was unable to locate any paternal heirs. On January 21, 1976, the State of Texas appeared by and through its Attorney General and filed a Plea of Intervention and Answer alleging that in the event no paternal heirs were located, the portion of the estate allotted to them should be held to escheat to the State as provided for in Article 3272, et seq., Tex.Rev.Civ.Stat.Ann. After a trial before the court without a jury, the trial court entered judgment awarding the entire estate to the thirty-one persons who were descendants of the decedent’s maternal grandparents. The State of Texas perfected this appeal.

We affirm.

The facts are not in dispute. The decedent left tangible personal property consisting of cash in the amount of $25,085.93. There were thirty-one maternal kindred who were descendants of the intestate decedent’s maternal grandparents and there were no descendants of the intestate’s paternal grandparents.

By two points of error the State contends that since there was a default of heirs in the paternal line, the trial court erred holding that the one-half of the decedent’s estate destined for the paternal heirs passed to the maternal line of heirs and erred in refusing to hold that such one-half escheat-ed to the State. The State argues that where none of the kindred mentioned in Section 38(a)(l-3) exist then Section 38(a)(4) of the Code provides that the estate must be divided in two moieties one of which must be distributed to the paternal kindred and the other to the maternal kindred. Based on this premise, the State argues that since there was no kindred on the paternal side, there was no one left to take this one-half of the estate. Therefore, the State contends that this one-half of the estate should be treated as abandoned property and should escheat under the provisions of Article 3272, supra, which provides that where a person dies intestate “having no heirs” his estate shall escheat and vest in the State.

Thus, the question to be determined is: If no paternal kindred can be found, will the paternal “moiety” then go to the maternal kindred or does it escheat to the State? The same question has once before reached the appellate courts of this State. In the case of Hartely v. Langdon and Co., 347 S.W.2d 749, 754-55 (Tex.Civ.App.—Houston 1961, no writ), the court was confronted with a situation where both the paternal and maternal grandparents were deceased and the maternal grandparents left surviving descendants but no surviving descendants of the paternal grandparents were left. The Houston Court of Civil Appeals held that under the last sentence of Section 38(a)(4) the entire estate descended to the maternal heirs and that no part of the estate escheated to the State. While we believe the Hartely case reached the right result, we cannot agree with the court’s reliance on the last sentence of Section 38(a)(4) to reach its conclusion that in a situation where both the paternal and maternal grandparents are deceased and there were descendants on the paternal side, the entire decedent’s estate will not be divided into moieties, and the “whole [of the] estate of the deceased . . . goes to the nearest lineal ancestors and their descendants. . .."

A reading of Section 38 of the Probate Code in its entirety clearly shows that it was the purpose of the legislature in passing the descent provision to transfer title to the estate of a decedent in its entirety to his heirs, and to effectuate an equitable and fair distribution of the estate among the heirs. Where none of the kindred specified in Section 38(a)(l-3) survives the decedent and it becomes necessary to distribute the estate to the paternal and maternal kindred, the legislature provided in Section 38(a)(4) that the estate is to be divided into two moieties, one of which would go to the paternal heirs and the other to the maternal heirs.

The last sentence in Section 38(a)(4) provides that: “If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.” The phrase “their descendants” has reference to the descendants of the paternal grandparents and the descendants of the maternal grandparents each as separate groups and not collectively. Since the first sentence of Section 38(a)(4) directs that the estate be divided into two moieties, one of which will go to the paternal kindred and the other to the maternal kindred, the remainder of Section 38(a)(4) explains the disposition of the estate after it has already been divided into two moieties. It follows, therefore, that the term “the whole of such estate” found in the last sentence refers to one moiety, and refers to either the moiety destined to go to the paternal kindred or the moiety destined to go to the maternal kindred and does not refer to the estate in its entirety. Although the language in the last sentence of Section 38(a)(4) is somewhat confusing and susceptible to an interpretation that 'the whole estate is to be distributed as an entirety to all descendants surviving on the nearest ascending level, it is now settled that where the estate passes by virtue of the last sentence in Section 38(a)(4) the estate must be divided into two equal moieties, one of which passes to the paternal kindred and the other to the maternal kindred. Golden v. York, 410 S.W.2d 181 (Tex.1966); McKinney v. Abbott, 49 Tex. 371 (1878). The two moieties are said to be “[two] distinct estates, being destined by the law for different objects, having no bond of union except through the intestate.” Jones v. Barnett, 30 Tex. 637, 642 (1868); See Witherspoon v. Jernigan, 97 Tex. 98, 76 S.W. 445, 446 (1903). This brings us to the problem of how a moiety will descend under Section 38(a)(4) in a situation where the decedent leaves surviving kindred on one side (paternal or maternal) but leaves no surviving kindred on the other side. See Bailey, Intestacy in Texas: Some Doubts and Queries, 32 Texas L.Rev. 776 (1954). Although there is no explicit provision in the Probate Code providing for a situation where the decedent leaves kindred on one side (paternal or maternal) but leaves no surviving kindred on the other side, the cardinal rule in construing the Probate Code is to ascertain and give effect to the intent and purpose of the legislature in relation to the subject matter of the legislation. Once the intent is ascertained, the courts will then seek to construe the legislation so as to give effect to the purpose of the legislative intent and not to defeat, nullify or thwart it. See 53 Tex. Jur.2d Statutes, sec. 125, pp. 180-183.

The legislative purpose in enacting the descent statute was to pass an intestate decedent’s estate in its entirety to his descendants. It is clear, we think, that the legislature intended to accomplish such purpose by providing for every conceivable contingency. The legislature could have provided for an escheat in case there were living descendants on only one side, but it did not do so. Although in derogation of the common law, statutes of descent and distribution are to be construed in keeping with their general purpose to effectuate a complete and orderly distribution of the entire estate of the decedent. To adopt the construction urged by the State would be to hold that it was not the intention of the legislature to provide for every contingency in passing the estate on to the intestate decedent’s descendants especially where there is a default of the heirs on one side. Where the underlying purpose of the statute is clear, as we think it is here, the courts should not and will not construe it so as to create a casus omissus, if by any other construction, this result can be avoided. Rippeth v. Connelly, 60 Tenn.App. 430, 447 S.W.2d 380 (1969).

The escheat statute, Article 3272, relied on by the State, has no application to the facts here because the statute applies only in situations where a person dies intestate, possessing an estate and “having no heirs.”

After considering the underlying purpose of the legislature in providing for the distribution of the estates of decedents and the fact that the legislature failed to provide for an escheat in the Probate Code, we hold that the moiety destined for the paternal heirs descended to the heirs in the maternal line with the result being that the entire estate descended to the thirty-one maternal heirs of the intestate decedent.

Accordingly the judgment is affirmed.


text:
    RICHARDS MANUFACTURING COMPANY, Appellant, v. Robert ASPROMONTE et al., Appellees.
    No. 16913.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 19, 1977.
   COLEMAN, Chief Justice.

Sears, Roebuck & Company, Inc. has filed a motion with this court praying that the clerk of this court be directed to accept for filing a tendered cash deposit for costs on behalf of Sears, Roebuck & Company, Inc. and it be permitted to proceed as appellant by filing its brief carrying forward its points of error found in its amended motion for a new trial. The motion will be denied.

The complete record in this case, including transcript and statement of facts was filed by Richards Manufacturing Company, a co-defendant with Sears, Roebuck & Company, Inc. in the trial court, on March 4, 1977. On the date that Sears presented its deposit for costs the clerk of this court examined the transcript previously filed by Richards to determine if the appeal by Sears had been properly perfected and whether this court had jurisdiction over its attempted appeal as required by Rule 388, T.R.C.P. The transcript revealed that a judgment had been entered by the trial court on November 16, 1976. A motion for new trial was filed by Sears on November 29, 1976. Sears posted an appeal bond on December 15, 1976 and filed an amended motion for a new trial on January 11, 1977. The clerk of this court determined that Sears had not properly perfected its appeal and that this court lacked jurisdiction of it.

The question presented is whether or not the judgment entered by the trial court on November 16, 1976 was final for appeal purposes in the sense that it disposed of all parties and issues before the court. Sears has acknowledged in its motion that if the judgment is final for appeal purposes Sears is not entitled to the relief which it seeks.

The judgment entered by the trial court expressly disposes of the claim of plaintiff, Aspromonte, and the defenses of Richards Manufacturing Company and Sears, Roebuck & Company, Inc. It does not expressly dispose of a Plea In Intervention filed by Aetna Insurance Company. The Plea In Intervention filed by Aetna asserts that it has paid to Aspromonte $1,611.00 in Workmen’s Compensation benefits and $903.40 in medical expenses. The Plea asserts that by reason of Article 8307, Section 6a, V.A.C.S., Aetna is subrogated to the rights of plaintiff, Aspromonte, against the various defendants to the extent of $2,514.40.

The judgment in the cause was entered on a jury’s verdict in favor of plaintiff, Aspromonte, and against Richards Manufacturing Company and Sears, Roebuck & Company, Inc. Sears, Roebuck & Company, Inc. recovered full indemnity against Richards Manufacturing Company, and Richards Manufacturing Company was denied contribution from Sears, Roebuck & Company, Inc. The final paragraph of the judgment reads:

“It is further ORDERED, ADJUDGED AND DECREED by the Court that all relief sought by any party, not expressly granted herein is denied.”

It is the contention of Sears, Roebuck & Company, Inc. that the judgment entered on November 16, 1976 was not a final judgment in that it failed to dispose of the Intervention filed by Aetna. Sears further contends that the judgment did become final on January 4, 1977 when Aetna filed a Withdrawal Of Intervention. In this instrument Aetna acknowledged that on or about the 19th day of October, 1976 it received payment of the full amount claimed in its Plea In Intervention, and that it did abandon its intervention and did disclaim any further interest or participation whatever in the lawsuit. After a hearing in open court the trial court entered nunc pro tunc a notation in its minutes to reflect that on November 1, 1976 the attorney for the intervenor informed the trial judge that his claim had been paid in full and that with the permission of the court he would not be present at the trial and that the court had granted the permission requested but failed to enter this action on his docket.

After a careful consideration of prior cases the Supreme Court of Texas in North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966), enunciated the basic rule relating to finality of judgments. The rule was stated in these words:

. “When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. A claim duly severed under Rule 41 is a “case” within the meaning of the foregoing rule. The rule will be subject to the exception created by Davis v. McCray Refrigerator Sales Corporation; but it will apply to separate claims of the plaintiff, cross-actions and counter-claims by defendants against the plaintiff, cross-actions by defendants against other defendants and cross-actions by defendants against third-party defendants. . .”

The judgment with which we are concerned was not one intrinsically interlocutory in character, and it was rendered and entered in a case regularly set for a conventional trial on the merit.

The holding of Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377 (1941), was formulated into a rule forming an exception to the general rule by the supreme court in North East Independent School District v. Aldridge, supra, in these words:

“It will not be presumed that a judgment dismissing a plaintiffs suit on nonsuit, plea to the jurisdiction, plea in abatement, for want of prosecution, etc., also disposed of the issues in an independent cross-action.”

It will be presumed that the trial court in entering the judgment under consideration intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties, including the Plea In Intervention filed by Aetna. The record supports this presumption. North East Independent School District v. Aldridge, supra; Nickel v. Snider, 484 S.W.2d 940 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n.r.e.).

The judgment entered by the trial court on November 16, 1976 was final for appeal purposes. Sears, Roebuck & Company, Inc. failed to perfect an appeal from this judgment. The motion is denied.


text:
    Melba Sue SLAPE, Appellant, v. Lesley Troy SLAPE, Appellee.
    No. 8776.
    Court of Civil Appeals of Texas, Amarillo.
    May 23, 1977.

      Herbert C. Martin, Amarillo, for appellant.
    Stokes, Carnahan & Fields, Gary W. Barnard, Amarillo, for appellee.
   REYNOLDS, Justice.

In this habeas corpus proceeding, the trial court compelled the return of minor children to their father because he had been appointed managing conservator in the court’s prior order. Because the mother challenged the efficacy of the prior court order and the court refused to hear evidence on the issue, we reverse and remand.

Dissolving the bonds of matrimony between Lesley Troy Slape and Melba Sue Slape, the parents of two minor children, the trial court appointed Lesley, the father, their managing conservator, “subject to reasonable visitation” by their mother, Melba Sue. Thereafter, the children came into possession of Melba Sue and, by proceedings he initiated in the trial court, Lesley sought to regain their possession by writ of habeas corpus. Upon being served, Melba Sue responded by pleading a common law marriage by the parties after their divorce and that the best interests of the children required they be left in her care, custody and control.

At the hearing, the divorce decree containing the managing conservatorship provision was received in evidence. The court refused to hear evidence offered by Melba Sue in support of her pleadings and ordered that the children be delivered to Lesley. Developing her evidence bearing on the common law marriage and the best interest of the children by a bill of exception, Melba Sue has appealed.

Neither the decree of divorce nor its con-servatorship provision has been set aside through judicial proceedings and, so far as the record reveals, no other action affecting the parent-child relationship is pending. Melba Sue’s bill of exception contains evidence which, if believed, would support findings that after their divorce the parties entered into a common law marriage, and that Melba Sue’s possession of the children would serve their best interests.

In compelling the return of the children to Lesley, the trial court relied on Section 14.10(a) of the Texas Family Code (1975). As amended in 1975, Section 14.10 now reads:

§ 14.10. Habeas Corpus.
(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
(b) The court shall disregard any cross action or motion pending for modification of the decree determining managing con-servatorship, possession, or support of or access to the child unless it finds that the previous order was granted by a court of another state or nation and that:
(1) the court did not have jurisdiction of the parties; or
(2) the child has been within the state for at least 12 months immediately preceding the filing of the petition for the writ.
(c) The court may issue any appropriate temporary order if there is a serious immediate question concerning the welfare of the child.
(d) While in this state for the sole purpose of compelling the return of a child through a habeas corpus proceeding, the relator is not amenable to civil process and is not subject to the jurisdiction of any civil court except the court in which the writ is pending and in that court only for the purpose of prosecuting the writ.
(e) If the right to possession of a child is not governed by a court order, the court in a habeas corpus proceeding involving the right of possession of the child shall compel return of the child to the relator if, and only if, it finds that the relator has a superior right to possession of the child by virtue of the rights, privileges, duties, and powers of a parent as set forth in Section 12.04 of this code.
(f) The court shall disregard any motion for temporary or permanent adjudication relating to the possession of the child in a habeas corpus proceeding brought under Subsection (e) of this section unless at the time of the hearing an action is pending under this chapter, in which case the court may proceed to issue any temporary order as provided by Section 11.11 of this code.

Clearly, in a habeas corpus proceeding to establish the right to possession of a child, Subsections (a), (b) and (c) become operative only if the right to possession is presently governed by a court order and the court finds that the relator is presently entitled to possession by virtue of the court order; otherwise, Subsections (e) and (f) become applicable to the proceedings. Accord, Standley v. Stewart, 539 S.W.2d 882, 883 (Tex.1976), where the Supreme Court said that, by enacting Section 14.10.

. The Legislature intended to demand obedience to existing court orders and to compel that obedience by habeas corpus proceedings. (Emphasis added.)

Equally clear is the Texas law that the remarriage of divorced parties renders ineffective or inoperative the provisions in a divorce decree relating to custody of children, McDaniel v. Thompson, 195 S.W.2d 202, 203 (Tex.Civ.App.—San Antonio 1946, writ ref d), awarded to the father or mother. Miller v. Powell, 212 S.W.2d 876, 878 (Tex.Civ.App. —Eastland 1948, writ ref’d n. r. e.). And, under Section 1.91 of the Family Code, a common law marriage may be proved in any judicial, administrative or other proceeding.

Thus, at the time of the hearing in a habeas corpus proceeding to establish the right to possession of a child, the court, in order to ascertain which subsections of Section 14.10 are applicable, must first determine whether there is a valid court order governing the right to possession. Here, however, the trial court, without hearing any evidence thereon, assumed the continuing validity of the conservatorship provision in the divorce decree and refused to hear the evidence offered to show that it became inoperative by reason of the remarriage of the parties. By doing so, the court erred.

The judgment is reversed and the cause is remanded.


author: PER CURIAM. CADENA, Justice,

text:
    Henry CHAVEZ et ux., Appellants, v. AETNA FINANCE COMPANY, Appellee.
    No. 15658.
    Court of Civil Appeals of Texas, San Antonio.
    May 25, 1977.
    Rehearing Denied July 6, 1977.

      James D. Krause, San Antonio, for Legal Aid, for appellants.
    Durward D. Moore, Dallas, for appellee.
   PER CURIAM.

This is a suit on a promissory note in which the makers of the note, by way of counterclaim, seek recovery of penalties from the holder of the note for alleged violations of the usury statutes and of Federal and State truth-in-lending statutes and regulations.

Plaintiff, Aetna Finance Company, sued to recover $503.05, allegedly the unpaid balance on a note executed by defendants, Henry R. Chavez and wife, Mary Chavez. Defendants appeal from a judgment granting recovery to plaintiff on the note, .plus attorney’s fees, and denying defendants’ recovery on their counterclaim.

The note in question, in the principal sum of $625.00, was executed by defendants on March 23, 1973. This amount represented the amount of cash advance made by plaintiff to defendants ($482.14), plus interest in the sum of $142.86. The note was payable in 25 monthly installments of $25.00 each, with the first installment payable on April 23, 1973.

Under Art. 5069-3.15(1) and (2), Tex.Rev. Civ.Stat.Ann. (1971), the maker of a loan of the type involved in this case is permitted to charge interest at the rate of 18% per annum on that part of the cash advance not in excess of $300.00 and 8% per annum on that part of the cash advance in excess of $300.00 but not in excess of $2,500.00. This interest is computed at the time the loan is made and the amount of the interest may, as here, be added to the amount advanced to determine the total amount payable by the borrower.

The amount of interest charged by plaintiff and added to the amount advanced represents the maximum permitted by law on a loan of $482.14 for a period of 25 months. The face amount of the note in this case, then, represented the money actually advanced by plaintiff to defendants, plus the maximum legal interest for a period of 25 months.

As authorized by Art. 5069-3.15(5), the note provided for an additional charge of five cents for each $1.00 “of any scheduled installment when any portion of such installment continues unpaid for ten (10) days or more following the date such payment is due, including Sundays and holidays.” The note provides for refund to defendants, in case of payment in full prior to the date the last installment is due, of the unearned portion of the interest included in the face amount of the note as provided in Art. 5069-3.15(6). There is also the usual provision for acceleration by the maker in case of default and payment of attorney’s fees if the note is placed in the hands of an attorney for collection.

Defendants made the first payment more than ten days after April 23, 1973, the date on which such payment was due. This payment was in the amount of $26.25, of which $1.25 represented payment of the late or delinquency charge, and the remaining $25.00 was applied to the face amount of the note, reducing the balance due to $600.00. Between the date of this payment and October 12, 1973, defendants made six payments, ranging in amount from $1.50 to $26.25, totalling $101.25, but at no time did they manage to bring their account to a current status as to any one installment. As of October 12, 1973, then, defendants owed $7.50 in additional delinquency charges. For some reason not explained by the record, from the last $101.25 paid by defendants after the initial payment of $26.25, plaintiff deducted only $4.30 as default charges and the remainder ($96.95) was applied to the balance due on the face of the note, reducing it to $503.05.

Defendants made no further payment after October 12, 1973, and on October 22, 1974, one day before the 19th payment was due, plaintiff filed this suit, alleging that because of defendants’ failure to pay the note plaintiff had been damaged in the sum of $503.05. This figure coincides with the face amount of the note, reduced by the amount which defendants had paid and which had been applied to reduction of the debt evidenced by the face amount of such note.

The filing of the suit by plaintiff seeking recovery of the entire unpaid balance of the note some six months and one day prior to the date the last installment was due clearly constituted an exercise by plaintiff of its power of acceleration.

Defendants’ claim of usury is based on the theory that since the original amount of the note included interest at the maximum legal rate for a 25-month loan, the telescoping of the term of the note as the result of acceleration necessarily increased the rate of interest beyond that permitted by law.

Where a holder of a note, upon exercise of his power of acceleration, demands the entire amount of interest payable over the total term of the note he is, in effect, increasing the rate of interest payable by the maker, and if such demand constitutes a demand for a rate of interest which is illegal as computed to the date of acceleration, the result is a demand for usurious interest. 45 Am.Jur.2d Interest and Usury § 185, at 148 (1969).

Defendants’ contention is simply that by failing to rebate the unearned interest plaintiff’s suit seeks recovery of usury.

Article 5069-3.15(6) requires, in case of prepayment of an “add-on” note, that the lender “refund or credit the borrower with an amount which shall be as great a proportion of the total interest contracted for , . as the sum of the periodic balances scheduled to follow the installment date after the date of prepayment in full bears to the sum of all the periodic time balances under the schedule of payments set out in the loan contract.”

Nothing in the statute in terms requires a rebate of unearned interest in cases where the lender, following default by the borrower, exercises his power of acceleration, as distinguished from the situation where the borrower exercises his right of prepayment. However, it is generally held that where a note is'accelerated the date of acceleration is considered to be the date of maturity of the note, requiring a rebate of unearned interest. Moore v. Sabine National Bank of Port Arthur, 527 S.W.2d 209 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.).

Defendants’ first complaint is that the trial court erred in holding that plaintiff did not fail to rebate the unearned interest. The relevant testimony was given by plaintiff’s account supervisor who testified in part as follows:

Q Now, referring you back to October of 1974 [the date of the last payment made by defendants], what was the balance on [defendants’] account?
A On October of 1974, the balance on this account was $503.05.
Q And have there been any payments made since that particular time?
A No, sir.
Q And in October of 1974, was this particular account accelerated?
A No, sir, it was not accelerated.
Q Was the net paid off and also rebating your interest according to Rule 78 [sic]?
A Yes sir, it was.
Q And figuring any delinquent fee or default charge at that time?
A That is correct.
Q And at that time was the account delinquent?
A That is correct, yes, sir, it was.
Q And what was the net payoff, figuring all rebates in regards to Rule 78 on interest and your default charges?
A At the time of figure the pay off, the pay off exceeded the gross note balance, even though the maturity date was approximately six and a half months overdue [sic] due to the fact that the computer picked up the late charges from all of the back list [sic] payments, henceforth [sic], we initiated our suit for the gross balance because the net pay-off was greater than the balance remaining in the account when the suit was filed.
Q In regard to the actual amount of rebate — at that time — do you have the figures on the rebate?
A Well, by Rule 78 [sic], which our computers set out, the refund would be approximately eight ($8.00) dollars.
Q O.K., is this the total amount owed and due the Finance Company?
A The five hundred three dollars and five cents.
Q Right.
A It is.
******
Q And can you tell me if this figure of $503.05 . . . includes the interest, pre-computed interest to the final maturity of the note?
A That is correct.
Q So as of 10-12-73, the $503.05 figure does not include any rebate on interest charges, is that correct?
A No, sir, we don’t reflect any refund on the account unless the account is paid off.
******
Q And then the balance owed was $503.05?
A Yes, sir, the balance owed is $503.05.
Q And that is including unearned interest?
A That is including unearned interest and any insurance premium, if any.

At the time the suit was filed defendants had been tardy in making 18 payments, so that plaintiff was entitled to demand default and delinquency charges totalling $22.50, of which it had received, prior to October 12, 1973, $4.30. At the time the suit was filed, then, defendants owed $18.20 in delinquency charges. According to the testimony, if the unearned interest had been rebated and the accrued default charges had been demanded, plaintiff would have had the right to sue for approximately $10.00 more than the amount for which it actually sued.

The net effect of what plaintiff did was a benefit to defendants. Plaintiff, by foregoing a demand for the default charges, in effect rebated more than it was required to refund under the statute.

The trial court did not err in refusing to award defendants the statutory penalty for usury.

However, the trial court erred in failing to award defendants the statutory penalty for which plaintiff is liable under the Federal Truth in Lending Act, 15 U.S. C.A. § 1601, et seq. (1974), and Regulation Z, 12 C.F.R. § 226, promulgated by the Federal Reserve Board in the exercise of the power granted to it in the Federal statute.

Under §§ 226.6(a) and 226.8(b)(4), the lender is required to disclose to the borrower, “clearly and conspicuously” “[t]he amount, or method of computing the amount, of any default, delinquency, or similar charges payable in the event of late payments.” Plaintiff’s supervisor of accounts testified that the “Federal Disclosure Statement” prepared and delivered to defendants in this case does not contain such disclosure. The disclosure statement brought up with the record in this case is in the form of a very poor machine-made copy of the original which, itself, was poorly prepared in that the typist in some instances did not insert the necessary information wholly in the boxes provided for each separate disclosure item. But an examination of this copy reveals that, in fact, it is impossible to determine from the entry in the box labeled “Default Charge” either the amount of such charge or the method of computing it. The only entry in this box is “1.2,” without a dollar mark, percentage sign, or other symbol.

It is true that the method of computing the default charge is set out in the note itself. But it cannot be held that the required disclosure has been made “clearly and conspicuously” when its nature can be ascertained only by referring to two separate instruments, neither one of which mentions the other.

In their counterclaim defendants, although alleging several violations of the applicable federal statute and regulations, sought but a single recovery. That is, they do not claim a separate recovery for each violation. It is, therefore, unnecessary to consider the other claimed violations of the federal regulations, since the finding of additional violations, if additional violations there be, would have no effect on the amount defendants seek to recover.

Under 15 U.S.C.A. § 1640(a)(1974), as a result of the failure of plaintiff to comply with the requirement of Regulation Z, § 226.8(b)(4), defendants are entitled to recover twice the amount of the finance charge in addition to court costs and attorney’s fees. The finance charge in this case is $142.86. To this defendants would have us add $9.72, the amount of the premium paid for credit life insurance. Defendants’ theory is that plaintiff failed to make the proper disclosures concerning insurance, and that, therefore, the insurance premium must be considered a part of the finance charge under § 226.4(a)(5) of Regulation Z. There is in the statement of facts an instrument, separately dated and signed, containing the required disclosure. Despite the fact that defendant, Richard Chavez, denied that he was told such insurance was optional and that he had requested it, the statement is at least evidence or probative force that the required disclosure was made. The denial, therefore, merely raises a fact issue which the trial court resolved in favor of plaintiff. It is not required that the insurance premium be included in the finance charge.

The trial court erred in not awarding defendants $285.72 (double the finance charge) plus attorney’s fees and court costs. Since the court below made no finding as to the reasonable value of the services rendered by defendants’ attorney, and since the value of such services is not established as a matter of law, this Court cannot render a proper judgment in this case.

There being reversible error in the case and absent a proper basis for rendition of judgment in this Court, we have concluded that, in the interest of justice, the entire case should be remanded for a new trial, it being our opinion that the case was not fully developed.

The judgment of the trial court is reversed and the cause is remanded for a new trial.

CADENA, Justice,

dissenting.

I do not agree with the conclusion that the trial court correctly denied defendants’ prayer for recovery of the statutory penalties for usury.

The record conclusively, I think, discloses that the amount sued for included unearned interest. The face amount of the note, $625.00, included precomputed interest at the maximum legal rate on a loan of $482.14 repayable in 25 monthly installments. On October 12,1973, after the total payments made by defendants, less default charges, had been applied to the reduction of the principal, the unpaid balance was $503.05. Clearly, this unpaid balance included interest computed on the assumption that the note would be paid in 25 months. There is no other possible arithmetical process which will yield the figure, $503.05.

Plaintiff’s supervisor of accounts testified that on October 12, 1973, the amount owed by defendants, taking into consideration delinquency charges and rebate of unearned interest, was $503.05. Simple arithmetic discloses the complete falsity of this statement. The maximum amount of delinquency charges for which defendants could be liable at that time was $7.50. They had paid $4.30 of such amount. Therefore, the total unpaid delinquency charges amounted to $3.20. The total amount for which defendants were then liable would be $506.25. But this figure includes 19 months’ unearned interest. Even if the unearned interest is computed according to the “Rule of 78ths,” a method which is more favorable to the lender than is the actuarial method of computing unearned interest, the amount of interest to be refunded would be in excess of $80.00. The “net payoff” as of October 12, then, would not exceed $426.25.

Nor does $503.05 correctly represent the net “payoff” figure as of October 22, 1974, the date on which plaintiff filed this suit, if delinquency charges and unearned interest are taken into consideration. The truth is reflected in that portion of the testimony of plaintiff’s supervisor of accounts in which he admitted that the amount which plaintiff was seeking to recover includes unearned interest. Under the circumstances of this case, the amount sued for included usurious interest.

Under the holding in Moore v. Sabine National Bank, 527 S.W.2d 209 (Tex.Civ.App.—Austin 1975, no writ), plaintiff, by filing suit to recover an amount which included usurious interest, “charged” excessive interest and became subject to the statutory penalty.

The making of this illegal charge is sought to be justified by explaining that if, to the unpaid balance of $503.05, plaintiff had added the total delinquency charges for which defendants were liable, less the interest to be rebated, the amount due would be in excess of $503.05. Therefore, plaintiff decided to forego assertion of its undoubted right to demand payment of default charges and chose, instead, to demand payment of excessive interest.

It is difficult to categorize this asserted defense. Article 5069-8.01 relieves a lender who charges excessive interest from liability for the statutory penalty if the charge resulted from “accidental and bona fide error.” Although neither the statute nor the decisions furnish definitive guidelines for the application of this defense, it is clear that plaintiff’s explanation cannot be upheld as an assertion of accidental and bona fide error.

The cases suggest that the defense applies only to computational or clerical errors, and then only to errors which result in the charging of interest which is but slightly above the permitted rate. Guetersloh v. C.I.T. Corp., 451 S.W.2d 759, 761 (Tex.Civ.App.—Amarillo 1970, writ ref’d n. r. e.); Western Bank & Trust Co. v. Ogden, 42 Tex.Civ.App. 465, 93 S.W. 1102, 1104 (Dallas 1906, no writ). See generally, Annot., 11 A.L.R.3d 1498, 1516-18 (1967).

The cases also reflect a refusal to consider the subjective motive or intent of the lender as a material factor in determining whether or not a transaction involves usury. Johns v. Jaeb, 518 S.W.2d 857, 860 (Tex.Civ.App.—Dallas 1974, no writ); Southwestern Investment Co. v. Hockley County Seed & Delinting, Inc., 511 S.W.2d 724, 732 (Tex.Civ.App.—Amarillo), writ ref’d n. r. e. per curiam, 516 S.W.2d 136 (Tex.1974). If the lender intentionally does the act which leads to a violation of the statute, liability attaches. Townsend v. Adler, 510 S.W.2d 175, 176 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ).

Plaintiff’s decision to insist on payment of usurious interest was deliberately made. Assuming that plaintiff acted under the belief that by foregoing his right to demand payment of default charges he acquired the right to demand excessive interest, its mistake was one of law and cannot constitute a defense.

I know of no authority supporting the theory that refraining from engaging in lawful conduct somehow engenders a right to act illegally.

      . The description of the method of computing unearned interest embodied in Art. 5069-3.-15(6) is, in substance, a verbal expression, in somewhat terrifying form, of the Rule of 78ths which, in effect, says that in the case of a loan payable in 12 equal monthly installments, i2M of the total finance charge shall be allocated to the first payment; UM to the second payment and so on until '/m of the charge is allocated to the 12th payment. Since the denominator will be “78” only in the case of a loan payable in 12 monthly installments, the label, “Rule of 78ths” is, to some extent, a misnomer. The following formula has been devised for computing, in one operation, the amount of rebate due under the Rule: R = F X P (P + 1)/N(N + 1), where “R” represents the amount of the rebate, “F” stands for the amount of the finance charge, “P” stands for the number of installments prepaid, and “N” represents the total number of installments.