author: MASSEY, Chief Justice.

text:
    BIBLE BAPTIST CHURCH, Appellant, v. NORTHWEST BANK, Appellee.
    No. 17672.
    Court of Civil Appeals of Texas, Fort Worth.
    June 6, 1975.
    Ross Gault, White Settlement (no brief filed), for appellant.
    McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk, Fort Worth (no brief filed), for appellee.
   OPINION ON MOTION FOR EXTENSION OF TIME FOR FILING STATEMENT OF FACTS

MASSEY, Chief Justice.

This is an appeal from judgment for debt obtained by Northwest Bank against Bible Baptist Church. As such it is a case where by Rule the Church had 60 days from date the Church’s Motion for New Trial was overruled to file the record in the Court of Civil Appeals. T.R.C.P. 386, “Time to File Transcript and Statement of Facts”.

By the Rule there is further provision that by motion filed within 15 days after expiration of the initial 60 day period, showing the existence of good cause within the initial 60 day period why the record could not have been filed within the initial period, the Court of Civil Appeals has jurisdictional authority to permit a later filing. The transcript was timely filed and the Church filed a motion that we extend the period for filing the statement of facts. It was filed in time, by the Rule, and we have authority to consider and act upon it. It is not resisted.

Upon examination of the motion it appears that it is supported only by affidavit of the court reporter. Therein we find nothing to reflect the date the order to prepare the statement of facts was given to the reporter; nor does the court reporter make affidavit that despite the timeliness of the order (if it was timely) he was unable to prepare the same that it might be filed as provided by the Rule.

The proof supplied in support of the motion for extension of time does not discharge the requisite burden of the law to show “good cause” for it to be granted. Home Fund, Inc. v. Garland, 520 S.W.2d 939 (Fort Worth Tex.Civ.App., 1975. There has not been time for this case to have a writ history).

In the absence of proof as to when the Church placed the order for a statement of facts we are unable to tell whether or not good cause for an extension of time was existent and are without jurisdictional authority to grant the request of the Church therefor.

Motion is denied.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    Oscar W. LEE, Appellant, v. FIREMEN’S AND POLICEMEN’S CIVIL SERVICE COMMISSION OF SAN ANTONIO, Appellee.
    No. 15425.
    Court of Civil Appeals of Texas, San Antonio.
    June 11, 1975.
    Rehearing Denied July 16, 1975.

      Pepos S. Dounson, San Antonio, for appellant.
    Crawford B. Reeder, City Atty., Jake N. Talley, Jr., Asst. City Atty., San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a suit by a fireman, Oscar W. Lee, to declare invalid a regulation of the Firemen’s and Policemen’s Civil Service Commission of San Antonio and to enjoin the certification, placement and consideration of the name of another fireman ahead of appellant for the position of assistant fire chief. A temporary injunction was initially granted to appellant, but, after a hearing, the temporary injunction was dissolved and the cause dismissed for want of jurisdiction.

On September 10, 1974, appellant and four other persons took a promotional examination for assistant fire chief. Appellant and Roger Penrod each had a test grade of 93 and each was given ten points for seniority, or a total of 103 points each, resulting in a tie between appellant and Roger Penrod. Efficiency reports were then used in determining whose name would first appear on the promotional eligibility list, culminating in Penrod being placed third and appellant fourth.

The regulation complained of is dated December 16, 1958, and provides a method of breaking ties on promotional examinations for firemen and policemen. The pertinent portions here involved provide substantially as follows: in the event of a tie on total scores on a promotional examination, the contestant with the highest score on a written examination will be placed ahead of others on the eligible list. If the written score does not break a tie, the contestant with the highest efficiency rating shall be placed ahead of others in the tie on eligibility list. If this does not break the tie, the contestant with seniority in rank from the eligibility list will be listed ahead of others in the tie on the eligibility list.

Appellant asserts that the trial court erred in dissolving its temporary injunction and in dismissing the suit for want of jurisdiction because: (1) the district court had jurisdiction to review and declare invalid a regulation of an administrative agency which exercises powers not expressly granted to it by the legislature nor necessarily implied from the authority conferred or duties imposed upon it; (2) the district court has jurisdiction to declare invalid a regulation of an administrative agency which denies the appellant an equal right granted to Mm by a statute; (3) the district court has jurisdiction to review and declare invalid a regulation of an administrative agency which is legislative and unconstitutional.

Appellee contends that the trial court did not err in dissolving its temporary injunction and dismissing the suit for want of jurisdiction because: (a) Article 1269m, Tex.Rev.Civ.Stat.Ann. (1963), authorizes the Firemen’s and Policemen’s Civil Service Commission to make rules and regulations governing promotions; (b) there is no statutory provision for an appeal in this situation; (c) there is no contention by appellant that his constitutional rights were violated.

Article 1269m, among others things, provides that the Civil Service Commission has the power to make rules for the conduct of its business, including the employment, promotion, demotion, suspension and discharge of firemen and policemen and further provides that the Commission shall make rules and regulations governing promotions and shall hold promotional examinations to provide eligibility lists for each classification in the police and fire departments. Another section provides that the Commission shall formulate proper procedure and rules for semi-annual efficiency reports and grade each member of the police and fire departments, which efficiency reports shall be made on each man by his immediate superi- or, and each efficiency report shall be based on 30 points as the highest grade in efficiency. Although the statute contains provisions for appeal of certain types of orders, such as suspension or discharge, there is no provision in the statute for appeal with regard to the decisions of the Commission in the situation here involved.

When the legislature creates an administrative agency, the legislature may prescribe rules and regulations governing the administrative body and the methods by which the rights determined by such a body shall be enforced. Judicial review of administrative action may be specifically provided or specifically denied by the legislature, or the legislature may simply be silent on the subject. Even where judicial review is specifically provided, it will be denied if the legislature requires the court to substitute itself for the administrative body and perform purely administrative acts. On the other hand, even where the legislature specifically denies judicial review, decisions of an administrative body may be attacked in the courts if they violate some provision of the State or Federal constitution. But all other decisions of such an administrative body which do not affect vested property rights or otherwise violate some constitutional provision are valid, and the mere fact that the legislature has denied legislative review does not invalidate them. The corollary of this proposition is that the courts should recognize an inherent right of appeal from an administrative body created by an act silent on the question of appeal only where the administrative action complained of violates a constitutional provision. City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951).

We regard two decisions of the Texas Supreme Court as directly in point and as controlling in the matter before us. In City of Amarillo v. Hancock, supra, the Supreme Court held that a captain in the city fire department who was demoted by the Civil Service Commission under procedure set forth in the Civil Service Act (Article 1269m) which did not provide for an appeal from such demotion order, did not have an inherent right of appeal from such order and consequently the district court did not have jurisdiction of such appeal on the grounds that the administrative action complained of violated constitutional right of due process.

Firemen’s and Policemen’s Civil Service Commission v. Kennedy, 514 S.W.2d 287 (Tex.1974), involved an action by a policeman to restrain the Civil Service Commission from removing his name as first of. three on the eligibility list for the position of deputy police chief of the city. The trial court granted a temporary injunction, the Court of Civil Appeals affirmed, and the Supreme Court reversed the judgments below and dismissed the cause, holding that the trial court had no jurisdiction and should have sustained the Commission’s plea to the jurisdiction and dismissed the cause. In so doing, the Court reiterated its holding in City of Amarillo v. Hancock, supra, and said:

“. . . it is not correct to say that every act of the commission is subject to judicial review. We have held to the contrary. In City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, the plaintiff Hancock was demoted from captain to driver by the Civil Service Commission of the City of Amarillo on recommendation of the chief of the department. Hancock brought suit in the district court seeking judicial review of the demotion order and a judgment restoring him to the rank of captain. ... It was held that the statute did not authorize an appeal from an order of demotion and that the district court had no jurisdiction of the suit. The latter holding was based on the rule that an inherent right of appeal from an administrative body created by an act silent on the question will be recognized only where the administrative action complained of violates a constitutional provision. This is the settled law in Texas. See Texas Liquor Control Board v. Canyon Creek Land Corporation, Tex.Sup., 456 S.W.2d 891; Stone v. Texas Liquor Control Board, Tex.Sup., 417 S.W.2d 385. The court reasoned that Hancock did not have a vested property right in the position of captain. This being so, it concluded that an inherent right to judicial review was not required by due process, which was the only constitutional principle that might have been violated.”

Kennedy involved a promotional examination for a deputy police chief as required by Section 14 of Article 1269m. The eligibility list was prepared on the basis of the examination scores combined with points for each applicant’s seniority and credit for his two most recent semi-annual efficiency reports. On this eligibility list, Captain Kennedy was number one with a score of 90.49 and Captain Clark was number three with a score of 89.37. After a protest by Captain Clark, the Commission directed its secretary to regrade the examinations and to post record scores based upon the answers to questions deemed valid by the Commission. This order was carried out and a revised eligibility list was posted on which Captain Clark was number one with a score of 98.37 and Captain Kennedy was number two with a score of 97.71. In upholding the action of the Commission, the Supreme Court said:

“Any rights or advantages that a particular member of the department may enjoy by virtue of this merit system of advancement are dependent upon, and subject to all the limitations and infirmities of, the statute. In establishing the system, the Legislature was entirely free to require, as it did implicitly, that the commission be the final arbiter with respect to grades and method of grading when an exami-nee exercised his right of appeal.”

In the case now before us, there is no suggestion that the Commission was guilty of fraud or bad faith, and there is nothing in the record to indicate that the Commission acted arbitrarily or capriciously. On its face, the system set up by the Commission to break ties appears fair and reasonable. All of the applicants were subject to the same rules and regulations and the use of efficiency reports to break a tie in determining eligibility for promotion does not discriminate against any of the applicants. The statute itself provides for semi-annual efficiency reports and grading of each member of the fire and police departments. Moreover, the use of efficiency ratings for employees is a widely used and accepted procedure both in the government and in private business, and its use as one of the elements in determining promotional eligibility is sound and logical. Appellant had no vested property rights in the position of assistant fire chief. He was not denied due process, and the Commission’s action was not a violation of any constitutional provision.

There is no provision in the statute for judicial review of the Commission’s actions in the matter before us, and the record does not establish any inherent right to judicial review. The trial court properly dismissed the cause for want of jurisdiction. The judgment of the trial court is affirmed.


author: OSBORN, Justice.

text:
    LUTHER MOVING & STORAGE, INC., Appellant, v. Marion L. ROBERTS, Appellee.
    No. 6434.
    Court of Civil Appeals of Texas, El Paso.
    June 25, 1975.
    Rehearing Denied Aug. 13, 1975.

      Scott, Hulse, Marshall & Feuille, Stephen B. Tatem, Jr., James L. Gallagher, El Paso, for appellant.
    Owen, Brewster, Steinberger, Mayhall & Co., Frank Owen, III, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This case involves an interstate shipment and storage of household goods and a resulting claim for conversion and a claim for shipping and storage charges. The judgment of the trial Court is in part affirmed and in part reversed and rendered.

In December, 1966, the Appellee, Marion L. Roberts, made arrangements with Whalen Moving & Storage Company, an Allied Van Lines agency in Madison, Wisconsin, to move his household goods to El Paso, Texas. Appellee left Madison before his goods were shipped, but he authorized his attorney to sign the bill of lading for him. An Allied Van Lines bill of lading, as originally prepared in Whalen’s office, called for payment on delivery. The attorney for Appel-lee in Madison testified that he was authorized to send the shipment on a charge basis but not C.O.D. When he went to Whalen’s office, he marked out the box on the bill of lading that called for payment on delivery and checked the box that provided that the payment was to be charged. He then signed for Appellee, and the shipment was made with the bill of lading providing for shipping costs to be charged to Appellee.

Mr. Whalen denied that he had consented to or approved the change in the bill of lading and said, when he learned of the change on the following day, he called Luther Moving & Storage, Inc., the Allied agent in El Paso, to advise the driver when he arrived that the shipment was C.O.D. and not to unload without first collecting payment. The bill of lading provided that it was subject to Allied Van Tariff 119-C. That tariff, which was filed with the Interstate Commerce Commission, provides in part in Rule 1, as follows:

“Any alteration, addition or erasure on a bill of lading which shall be made without the special notation thereon of the agent of the carrier issuing the bill of lading shall be without effect and the bill of lading shall be enforceable according to its original tenor.”

The tariff also had special provisions in Rule 39 concerning requirements that had to be complied with before a shipment could be sent on a charge basis. Those requirements were not complied with for this shipment.

Appellee was unable to pay the shipping charges when the goods arrived in El Paso, and all of the goods were then placed in storage at Luther’s warehouse on December 20, 1966, where they have remained since that time. On January 3, 1967, Appellee sued Luther and Allied seeking possession of his goods and damages, and the following day a writ of sequestration was issued in that case commanding the Sheriff to seize and take possession of said household goods. The return on January 6, 1967, reflects that on that day the Sheriff took possession and stored the goods in his name, even though they physically remained in the Luther warehouse. On June 27, 1972, that suit was dismissed for want of prosecution at Roberts’ cost.

On February 28, 1973, Luther sent a letter to Roberts stating his current balance was $12,807.90 and advising him that if payment was not received in ten days the goods would be sold. On March 9, 1973, Roberts filed this suit against Luther only and obtained a restraining order to prevent a sale of his goods. Upon trial of the case to a jury, a verdict was returned in November, 1973, in which the jury found that the goods were shipped on a bill of lading providing for a charge or credit, that Luther instructed the driver to collect payment before unloading, that the goods were diverted by Luther, and that Luther took the goods on storage in transit without author!ty from Roberts and stored the goods for the account of Allied and Whalen but not Luther, which deprived Roberts of possession. The jury also found the value of the goods at the time of the storage was $15,-000.00, the reasonable shipping cost was $3,417.45, and that the reasonable and necessary storage costs necessitated by the writ of sequestration was $1,346.40. Judgment was entered that Roberts recover from Luther all of his household goods and 6% interest on the value of the goods ($15,-000.00) from December 20, 1966, and further that Luther take nothing from Roberts.

Appellant presents twenty-five points of error which are grouped into four different areas. The first group of points complain of the judgment awarding interest on the value of the goods as monetary damages for conversion. Being of the opinion that the suit for conversion is barred by the two-year statute of limitations, we sustain Appellant’s first point of error. In Appellee’s second amended petition, it was alleged “ * * * that upon delivery of the property in accordance with the terms of the original contract possession in the Plaintiff was denied by the Defendant and said property was withheld, whereupon said property was converted, appropriated or otherwise diverted to the use and benefit of the Defendant in such a manner as to deprive the Plaintiff of its use and value; ⅞ * ⅞.” The jury found that Luther diverted the goods intended for Roberts (Special Issue No. 3) without authority from Roberts (Special Issue No. 4) and that Luther thereby deprived Roberts of possession of his property (Special Issue No. 8).

Conversion is an exercise of dominion or control over the goods of another party which is inconsistent with the other’s rights and is a cause of action involving possession rather than title. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444 (Tex.1971); Prosser, Law of Torts (4th ed. 1971), § 15, pp. 83, 89. And for a cause of action to exist the possession must be wrongful. Sunray Enterprises, Inc. v. Rosenaur, 335 S.W.2d 670 (Tex.Civ.App.—Dallas 1960, writ ref’d n. r. e.). Luther contends it had a right, as agent for Allied, to hold the goods for payment since the bill of lading was not amended in accordance with Rule 1 of the tariff and further since provisions for credit had not been made in accordance with Rule 39 of the tariff.

Such argument seems correct, but even assuming that the shipment was properly on a charge basis and not C.O.D. and therefore the storage for payment of shipping cost was wrongful, such wrongful conversion clearly occurred at the time of delivery in El Paso in December, 1966, just as Appellee alleged. At that time, Appellee made demand on Luther for his goods but was refused. If a cause of action for conversion ever existed, it arose at that time and was barred by the two-year statute of limitations when the present suit was filed over six years later in March, 1973. Republic Supply Company v. French Oil Company, 392 S.W.2d 462 (Tex.Civ.App.—El Paso 1965, no writ). If the cause of action did not arise on December 20, 1966, it is difficult to see how the trial Court could allow interest from that date. The first point of error is sustained.

The second and third group of points complain of that part of the judgment which allows Appellee to recover possession of his goods without payment for shipping and storage charges. In the cross-action filed by Luther it alleged certain facts as to the shipment of the goods, their subsequent storage and the cost therefor. It specifically alleged that it was authorized to assert the claim against Roberts for nonpayment of the shipping charges. It also offered in evidence an agency contract with Allied Van Lines, as carrier, which authorized it “ * * * to collect charges for * * * shipment of household goods for and in behalf of CARRIER * * The authority to collect usually carries with it as a necessary incident the power to bring suit to enforce payment. Equitable Life Assur. Society of United States v. Lester, 110 S.W. 499 (Tex.Civ.App.1908, no writ); 2A C.J.S. Agency § 238, p. 940. If Roberts, as cross-defendant, had any questions about the right of Luther to sue for Allied, such issue should have been raised by his pleadings in order to preserve such issue and further protect the rights of all concerned. Fort Worth & Denver Ry. Co. v. Ferguson, 261 S.W.2d 874 (Tex.Civ.App.—Fort Worth 1953, writ dism’d). The jury found that the reasonable value of the shipping cost of Roberts’ household goods from Madison, Wisconsin, to El Paso, Texas, was $3,417.45. Such finding is supported by the evidence. We sustain Appellant’s Point of Error No. XXII and hold that Luther is entitled to recover the amount of the shipping cost as found by the jury in answer to Special Issue No. 10.

We also sustain Appellant’s Point of Error No. XXIII and hold that Luther is entitled to recover the sum of $1,346.40, as found by the jury to be the reasonable and necessary storage cost necessitated by the writ of sequestration Roberts obtained in the 1967 suit he filed against Luther and Allied. That suit was dismissed with cost taxed against Roberts and no appeal was taken. That judgment became final and is res judicata of the obligation to pay all costs, which would necessarily include cost for storing the goods as a result of the issuance of the writ at Roberts’ request.

Finally, we sustain Appellant’s Points of Error Nos. XVI and XX and hold that Luther has a valid lien upon Appellee’s household goods until payment is made for the shipping and storage costs as found by the jury. The Appellant’s other points of error have been considered and are denied. The evidence did not establish the amount of reasonable and necessary storage cost, which were necessitated by the writ of sequestration, as a matter of law, because the proof as to such “reasonable and necessary” cost could be nothing more than opinion evidence, and opinion evidence does not establish a fact as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970).

The judgment of the trial Court which provides that Appellee shall have and recover of and from the Appellant all of the property, furniture, effects, goods and shipment made from Madison, Wisconsin, to El Paso, Texas, is affirmed. That part of the judgment awarding Appellee interest upon the value of the property from December 20, 1966, is reversed and rendered for the Appellant. That part of the judgment denying Appellant any recovery from Appel-lee is reversed and judgment rendered that Appellant recover of and from Appellee the sum of $3,417.45 for shipping cost and the sum of $1,346.40 for storage cost, plus interest on both sums from the date of the trial Court’s judgment, and further that Appellant have a lien upon all of Appellee’s household goods which were shipped to El Paso, Texas, under Bill of Lading No. 17582, until such shipping and storage charges are paid in full. The costs herein are taxed one-half against the Appellant and one-half against the Appellee.

ON MOTION FOR REHEARING

In his Motion for Rehearing, Appellee asserts several points of error, all of which have been considered and all of which are denied. In connection with the first point, it is contended that this Court erred in holding that the award of interest in favor of Appellee was barred by the statute of limitations without also holding that the shipping cost and storage cost which arose at the same time are barred by the statute of limitations. Thus, it is contended that this Court has given the Appellant the benefit of a defense which was at the same time denied to the Appellee.

The explanation for what may at first glance seem to be an inconsistency is very simple. The Appellant in its first three points of error contended that the trial Court erred in rendering judgment for interest for any conversion which may have occurred in 1966 because the cause of action was barred by limitations. Concluding" that such contention was correct, we sustained the Appellant’s first point of error.

On the other hand, the Appellee did not in any counterpoint or crosspoint present to this Court a contention that the claim for shipping and storage charges was barred by limitations. This Court sustained the Appellant’s Point of Error No. XXII which contended that it was entitled to recover the amount of the shipping cost as found by the jury. The Appellee’s counterpoint and argument concerning such claim were as follows:

“COUNTERPOINT XXII
“THE TRIAL COURT DID NOT ERR IN ENTERING JUDGMENT THAT DID NOT ALLOW APPELLANT TO RECOVER THE SUM OF $3,417.45 AS FOUND BY THE JURY IN ANSWER TO SPECIAL ISSUE NUMBER 10.
“Appellant is to be indemnified by Allied Van Lines for any costs or charges they may have (S.F. 21)
“Further, any charges incurred or owing to Allied Van Lines as a result of transportation of goods by Allied Van Lines to El Paso is a question between Allied Van Lines and Appellee herein. Allied Van Lines is not a party to this suit.
“Further, to allow Appellant herein to recover costs of transportation would be to allow him unjust enrichment in that they are to be reimbursed twice for the same charges.”

Such reply in no way suggests that recovery should be denied on the shipping charges because of limitations.

With regard to the Appellant’s Point of Error No. XXIII which we sustained and thereby permitted recovery of the reasonable and necessary storage cost as found by the jury, the Appellee’s counterpoint and reply were as follows:

“COUNTERPOINT XXIII
“THE TRIAL COURT DID NOT ERR IN ENTERING A JUDGMENT TEAT DID NOT ALLOW APPELLANT TO RECOVER THE SUM OF $1,346.40 AS FOUND BY THE JURY IN ANSWER TO SPECIAL ISSUE NUMBER 11.
“Storage costs necessitated by a Writ of Sequestration were a part of the suit which has been dismissed. They, therefore, should have been taxed as costs in the prior suit and are not before the Court. (See C.P. XXI)”

Likewise, this contention does not suggest that limitations are a bar to the recovery of the storage cost.

The Appellee is not in a position to complain about this Court’s having given the Appellant the benefit of a limitations statute and not having given him the benefit of the same statute, when the Appellant clearly requested in three points of error that the limitations statute was applicable to the claim presented against it, and the Appellee never contended that he was entitled to the benefit of the limitations statute as to claims presented against him. Such contention may not be raised for the first time on motion for rehearing.

The other points have been considered and are denied.

The Appellee’s Motion for Rehearing is denied.

In reply to the Motion for Rehearing the Appellant asserts that it has never sought to recover a personal judgment against the Appellee but that it only seeks to impose upon the household goods in its possession a possessory lien to secure the payment due it. Accordingly, our judgment permitting recovery of $3,417.45 for shipping cost and $1,346.40 for storage cost, plus interest, is limited to a recovery from the household goods which were shipped to El Paso, Texas, under Bill of Lading No. 17582, and that no personal judgment be recovered against Appellee.


author: YOUNG, Justice.

text:
    EMMORD’S INC., Appellant, v. H. L. OBERMILLER, Appellee.
    No. 932.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 26, 1975.
    Rehearing Denied Aug. 29, 1975.

      Bill Blackburn, Corpus Christi, for appellant.
    Robert M. Kendrick, Bonniwell, Atwill & Kendrick, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

In this suit on a personal services contract, H. L. Obermiller sued Emmord’s, Inc. to recover for accounting services rendered. The contract resulted from a meeting of the parties in May of 1969. It is undisputed that Emmord’s was to pay Obermiller $10.00 per hour for his services. At the trial, defendant argued that the agreement limited the amount charged by plaintiff to $300.00 per month. The jury found that no such limitation existed. Defendant does not attack this finding on appeal.

The case was submitted to the jury on special issues in the trial court. Defendant there requested, and the court refused to submit, seventeen special issues to the jury. The defendant does here complain of those refusals.

Based on the jury’s answers to special issues and upon stipulation entered into by the parties, the trial court entered judgment in favor of Obermiller in the amount of $4,350.00 and further awarded him reasonable attorney fees in the amount of $1,337.50. Emmord’s appeals from that judgment.

The entire dispute, as presented to us on appeal, centers around the failure of appel-lee to render billings which reflected total charges for all services performed by appel-lee during the billing period reflected on each bill. As a result of appellee’s failure to fully bill appellant each month, appellant argues that appellee has substantially breached the employment contract. The foundation of this argument is appellant’s contention that such a billing procedure was an implied term of the contract entered into between appellee and appellant. Appellant further argues that such breach by appellee precludes appellee’s recovery under the contract. Alternatively, appellant argues that the billings issued by appellee were false, misleading, and were relied upon by appellant as being the total amount due appellee for services rendered. Thus, appellant contends, appellee is es-topped from seeking recovery under the terms of the contract.

Appellant’s points of error numbered 1, 2, 5, 6, 7, and 18 address themselves to appellant’s “breach of contract” theory.

Point of error number 1 asserts that the trial court erred in refusing to grant appellant’s motion for judgment non obstante veredicto because the undisputed evidence showed that appellee breached his agreement, implied as a matter of law, that all bills presented to appellant would reflect all charges for services rendered by appellee up to and including the last day of the time period shown on the bill. Point number 2 is identical to point number 1 with the exception that point number 2 asserts that the billing agreement is implied in fact.

Points of errors numbered 5, 6, 7, and 18 complain of the trial court’s refusal of the following special issues requested by appellant:

“SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that as part of the employment agreement between Plaintiff and Defendant there was an implied agreement that all bills rendered by Plaintiff to Defendant would contain all charges for services rendered by Plaintiff up to and including the full time period shown the bill as the billing period?
Answer: ‘We do’ or ‘We do not’.
If you have answered Special Issue No. 1, ‘We do’, and only in that event, then answer:
SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that Plaintiff breached the agreement inquired about in Special Issue No. 1 above?
Answer: ‘We do’ or ‘We do not’.
If you have answered Special Issue No. 1 ‘We do’, and only in that event, then answer:
SPECIAL ISSUE NO. 3
Do you find that the breach of the agreement by the Plaintiff was substantial? Answer: ‘We do’ or ‘We do not’.
SPECIAL ISSUE NO. 15
Do you find from a preponderance of the evidence that at the times in question there was a custom or usage in South Texas that bills sent by accountants to their clients would contain all charges rendered for services performed up through the time period shown to be covered by the face of the bill?
Answer: ‘We do’ or ‘We do not’.”

We will discuss these contentions collectively. With the exception of the dispute about the alleged $300.00 per month maximum billing agreement, there is no conflict in the evidence in regard to the remaining terms of the contract. And there is no evidence specifically that the contract encompassed an implied agreement that each bill would reflect all charges by appellee for services rendered up to and including the last day of the time period shown on the bill. The negotiations through which a contract was entered into were conducted by appellee and Mr. Hendricks, a director of appellant-corporation. Obermiller testified that he and Hendricks did not discuss how appellee would bill appellant. Appellee merely told appellant that he would bill appellant. When Hendricks was asked if there was an agreement when and how appellee would bill appellant, Hendricks stated: “We didn’t have any specific agreement on that.” Hendricks went on to explain that “It was understood on my part that we’d be billed monthly”. Thus, we see that no agreement was entered into in regard to billing procedures. There is evidence about what Hendricks thought would be the procedure. The intention of the parties, however, is to be gathered from the language used by the parties and not from the secret intentions or suppositions of one of the parties. Magnolia Petroleum Co. v. Storm, 239 S.W.2d 437 (Tex.Civ.App.—El Paso 1950, writ ref’d n. r. e.); E&sterwood v. Liberty Mut. Ins. Co., 93 S.W.2d 1173 (Tex.Civ.App.—Waco 1936, writ ref’d).

This Court cannot make contracts for parties. Further, we can declare implied covenants to exist only when there is a satisfactory basis in the express contract of the parties which makes it necessary to imply certain duties and obligations in order to effect the purposes of the parties in the contract which they have made. Before a covenant will be implied, it must appear from the express terms of the contract that it was so clearly in the contemplation of the parties that they deemed it unnecessary to express it or that it is necessary to imply such covenant in order to give effect to and effectuate the purpose of the contract as a whole. Freeport Sulphur Co. v. American Sulphur Royalty Co. of Texas, 117 Tex. 439, 6 S.W.2d 1039 (1928). Here there is no indication in the express terms of the contract that both parties contemplated a monthly billing system whereby each bill would set out the total charges up to and including the final date of the billing agreement. Although appellant’s agent stated what he “understood”, he unequivocally stated “We didn’t have any specific agreement on that” (billing procedure). We also note that appellant’s goal in entering into the contract with appellee was to obtain accounting services. Any procedure for submitting bills would be ancillary to the true purpose of the contract.

In its brief, appellant points out the disadvantages of the method of partial billing used by appellee. Indeed, Mr. Hendricks testified that such a billing procedure would make it difficult for businessmen to manage their financial affairs. In that regard, we refer to Freeport Sulphur Co. at page 1042, wherein our Supreme Court, quoting from Grass v. Big Creek Development Co., 75 W.Va. 719, 84 S.E. 750, states:

“It is not enough to say it is necessary to make the contract fair, or that it ought to have contained a stipulation which is not found in it, or that, without such covenant, it would be improvident or unwise or would operate unjustly; for men have the right to make such contracts.

About custom and usage, evidence is admissible to explain an ambiguous contract or to add to it elements not in contravention of its terms. Fox v. Gallo, 428 S.W.2d 127 (Tex.Civ.App.—Amarillo 1968, writ ref’d n. r. e.). But whether the understanding of the parties is made with reference -to a, custom and thereby intending such custom to be a part of the contract is a question of fact for the jury. See 58 Tex.Jur.2d Usages and Customs § 24 (1964). So a refusal to submit a properly requested special issue on custom and usage can be error. But the trial court here did not so err because the appellant requested no issue about the intention of the parties.

Assuming, arguendo, that appellant is correct in its contentions that an implied billing covenant does exist, appellant still cannot prevail on its “breach of contract” theory. The covenant would, at best, go only to a part of the consideration of the contract. Any breach of such covenant can be compensated in damages. Therefore the covenant is independent. World Broadcasting System, Inc. v. Eagle Broadcasting Co., Inc., 162 S.W.2d 463 (Tex.Civ.App.—San Antonio 1942, writ dism’d). Appellant did not request any issues regarding the existence or extent of damages resulting from the alleged breach. Appellant could defeat appellee’s recovery only to the extent of the damages suffered by appellant. Because it failed to request issues inquiring of the existence of damages and the extent thereof, no judgment favorable to appellant could have been based upon the jury’s answers to appellant’s requested special issues numbered 1, 2, 3, and 15. Therefore the appellant’s motion for judgment non obstante veredicto was properly refused. Under those circumstances, the refusal of requested issues numbered 1, 2, 3, and 15, also was not error. See Southwestern Settlement & Development Corporation v. State, 282 S.W.2d 78 (Tex.Civ.App.—Beaumont 1955, writ ref’d n. r. e.).

We would further note that requested issue number 2 was properly refused because it called on the jury to determine the effect (“breached”) of appellee’s actions upon the oral contract between the parties. Such is clearly a question of law and as such is improper for submission. Foerster v. Peoples, 362 S.W.2d 918 (Tex.Civ.App.—Amarillo 1962, no writ); Advance Aluminum Castings Corp. v. Schulkins, 267 S.W.2d 174 (Tex.Civ.App.—Beaumont 1954, no writ); City of Port Arthur v. Young, 37 S.W.2d 385 (Tex.Civ.App.—Beaumont 1931, writ ref’d). Appellant’s points numbered 1, 2, 5, 6, 7, and' 18 are overruled.

Appellant’s points of error numbered 3, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 address themselves to appellant’s contention that appellee is estopped from asserting his claim for services rendered in excess of the amounts claimed due on the monthly bills submitted by appellee to appellant. Point number 3 complains that the trial court erred in overruling appellant’s motion for judgment non obstante veredicto. Points numbered 8, 9,10, 11, 12, 13,14, 15, 16, and 17 complain of the trial court’s refusal to submit the following requested special issues:

“SPECIAL ISSUE NO. 4
Do you find from a preponderance of the evidence that the monthly bills submitted by Plaintiff to Defendant constituted representations by Plaintiff that the monthly bill was the total amount for which Plaintiff intended to seek compensation from Defendant for all accounting services rendered up to and during the month shown on the face of the bill? Amswer: ‘We do’ or ‘We do not’.
SPECIAL ISSUE NO. 5
Do you find from a preponderance of the evidence that Plaintiff made such representation with the intent to make Defendant believe that the bill covered all amounts owed by Defendant?
Answer: ‘We do’ or ‘We do not’.
If you have answered Special Issue No. 4 ‘We do’, and only in that event, then answer:
SPECIAL ISSUE NO. 6
Do you find from a preponderance of the evidence that such representation was false?
Answer: ‘We do’ or ‘We do not’.
If you have answered Special Issue No. 4 ‘We do’, and only in that event, then answer:
SPECIAL ISSUE NO. 7
Do you find from a preponderance of the evidence that Defendant would have discharged Plaintiff as its accountant or would have immediately negotiated a contract with Plaintiff wherein Defendant would not be liable for the money for which Plaintiff sues in this suit except for such representation?
Answer: ‘We do’ or ‘We do not’.
SPECIAL ISSUE NO. 8
From a preponderance of the evidence state the month and year in which Defendant would have discharged Plaintiff except for such representation?
SPECIAL ISSUE NO. 10
Do you find from a preponderance of the evidence that after July 81, 1971, Plaintiff failed to notify Defendant upon the receipt of each $300 monthly payment that such payment was not sufficient to for all of Plaintiff’s accounting services rendered to date?
Answer: ‘We do’ or ‘We do not’.
SPECIAL ISSUE NO. 11
Do you find from a preponderance of the evidence that Defendant, after July 31, 1971, relied on Plaintiff’s silence with respect to the sufficiency of each $300 monthly payment either by not discharging Plaintiff or by not negotiating a new contract with him in which it was agreed by both parties that his compensation would be limited to $300 per month?
Answer: ‘We do' or ‘We do not’.
SPECIAL ISSUE NO. 12
Do you find from a preponderance of the evidence that the Plaintiff represented to Defendant’s employees at the time that he submitted to them the $1,800 bill that it was not to be paid, but was being submitted by him simply for the purpose of reducing Defendant’s federal income tax liability?
Answer: ‘We do’ or ‘We do not’.
SPECIAL ISSUE NO. 13
Do you find from a preponderance of the evidence that such representation, if any, was the cause of such bill not being reported to Joe Hendricks or E. E. Baldwin?
Answer: ‘We do’ or ‘We do not’.
SPECIAL ISSUE NO. 14
Do you find from a preponderance of the evidence that if such bill had been reported to Joe Hendricks or E. E. Baldwin, Plaintiff’s services would have been terminated at that time?
Answer: ‘We do’ or ‘We do not’.” Requested special issues numbered 4, 5, 6, 7, and 8 address themselves to appellant’s theory that appellee is estopped from recovering the funds alleged due him because ap-pellee, through his monthly billing to appellant, represented that the amount of each bill was the total sum due for services performed during the time period to which the bill applied.

The essential elements of estoppel, as set out in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952) are:

(1) A false representation or concealment of material facts.
(2) Made with knowledge, actual or constructive, of the facts.
(3) The party to whom it was made must have been without knowledge or the means of knowledge of the real facts.
(4) It must have been made with the intention that it should be acted on.
(5) The party to whom it was made must have relied on or acted on it to his prejudice.

At page 10 of appellant’s reply brief, appellant admits that requested special issue number 5 was not substantially correct within the meaning of Rule 279, Texas Rules of Civil Procedure. We accept this as a waiver of appellant’s point of error number 9. In doing so, we express no opinion of the accuracy of appellant’s statement of the law in regard to conditional submission.

Appellant failed to submit a special issue inquiring whether appellant was without knowledge or the means of knowledge of the real facts. In support of its contention, appellant asserts that all elements of estop-pel not inquired about in its requested special issues are established as a matter of law. This contention is without merit.

Appellee testified that he repeatedly informed appellant, through its manager and shareholder, Mr. Elmer, that he was doing more work than he was getting paid for and that payments in excess of $300.00 per month were necessary. The evidence also reveals that appellee presented appellant with a bill for $1,800.00 in October of 1971. This evidence coupled with the fact that appellant did not immediately discharge appellee would certainly support an inference that appellant was aware of the fact that the monthly billing submitted by appellee did not represent total charges for the time period covered by each bill. The issue of appellant’s knowledge or ability to know of the facts regarding total charges for services rendered by appellee, being controverted, was not established as a matter of law. It was the duty of appellant to submit issues covering all controverted elements of its defense of estoppel. Having failed to do so, it cannot complain of the trial court’s refusal to submit an incomplete presentation of its defense. Southwestern Settlement & Development Corporation v. State, supra; Pacific Employers Ins. Co. v. Brasher, 234 S.W.2d 698 (Tex.Civ.App.—Austin 1950, writ ref’d n. r. e.). The trial court properly refused to submit appellant’s requested special issues numbered 4, 5, 6, 7, and 8.

Appellant’s requested issues numbered 10 and 11 appear to assert the defense of es-toppel on the theory that appellee’s acceptance of monthly payments after July 31, 1971, without comment to appellant, constituted a false representation.

Special issue number 10 does not inquire of an ultimate fact. It appears to be addressed to the issue of appellant’s knowledge that $300.00 per month would not completely compensate appellee for services rendered. However, it merely asks whether appellee failed to notify appellant that such $300.00 per month payments would not be sufficient to pay for all accounting services rendered to date. This question relates only to a phase of the ultimate issue. Therefore, requested issue number 10 is evidentiary and was properly refused. Perales v. Braslau’s Furniture Company, 493 S.W.2d 638 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.).

In reference to our discussion of requested issue number 11, we note that no proper issue was requested regarding appellant’s knowledge or ability to know of the true fact concerning the sufficiency of the $300.00 per month payments. As previously noted, this is an essential element of appellant’s defense.

We also note that appellant has failed to inquire whether appellee made a false representation or concealed a material fact. In light of Mr. Obermiller’s testimony that he repeatedly told appellant that the $300.00 per month payments were not sufficient and in light of the submission of a bill for $1,800.00 in October of 1971, the issue of a false representation or concealment of a material fact is a contested issue and appellant was obligated to submit an issue thereon.

Having failed to submit the controlling issues on this theory of appellant’s defense of estoppel, the trial court properly refused to submit requested special issues numbered 10 and 11.

Appellant sought to submit its third theory of estoppel to the jury through its requested issues numbered 12, 13, and 14. This theory of estoppel is apparently founded upon the theory that appellee falsely represented to appellant that the $1,800.00 bill did not have to be paid. This submission of the defense of estoppel is defective because appellant has failed to submit an issue to the jury inquiring of appellant’s knowledge or ability to obtain knowledge of the true facts. As previously noted, the evidence upon this aspect of the case is conflicting and it was incumbent on appellant to submit this controlling issue properly to the trial court.

Further, appellant did not inquire whether the appellee made the “representation” with the intent that it be acted on. Mr. Obermiller testified that he mentioned the bill to appellant’s manager during the following year. He stated that he did not expect immediate payment. The evidence on this ultimate fact is, therefore, conflicting and it was appellant’s duty to submit this controlling issue to the court in proper form.

Because of our previous discussions on appellant’s theories of estoppel, it is obvious that the appellant has failed to submit proper issues on all controverted ultimate issues of its defense of estoppel. There was conflicting evidence upon various elements of appellant’s defense. When reviewing the trial court’s refusal to grant a motion non obstante veredicto, this Court considers all testimony in the light most favorable to the party against whom the motion for judgment non obstante veredicto is sought. Shoppers World v. Villarreal, 518 S.W.2d 913 (Tex.Civ.App.—Corpus Christi 1975, writ ref'd n. r. e). The trial court, therefore, did not err in refusing to grant appellant’s motion for judgment non obstante veredicto. Appellant’s points of error numbered 3, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 are overruled.

By its point of error number 4, appellant complains that appellee cannot collect for the services represented by the $1,800.00 billing. Appellant contends that this portion of the debt is barred by Tex.Rev.Civ.Stat.Ann. art. 5526 (1958). This contention is without merit. Here we have a running account,, spanning over three years. There is no evidence that appellant directed that payment be applied to any particular debt. In such a case, payments on the account as a whole are applied by law to the oldest unpaid portion of the account. Prowell v. Berry-Barnett Grocery Company, 462 S.W.2d 53 (Tex.Civ.App.—Waco 1970, writ ref’d). Appellant’s point of error number 4 is overruled.

The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    HOHENBERG BROTHERS COMPANY, Appellant, v. GEORGE E. GIBBONS & COMPANY et al., Appellees.
    No. 958.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 26, 1975.
    Rehearing Denied Aug. 29, 1975.

      Bob J. Spann, McDonald, Spann & Smith, Corpus Christi, for appellant.
    F. Edward Barker, Harris, Cook, Browning & Barker, Corpus Christi, for appellees.
   OPINION

NYE, Chief Justice.

This is a damage suit brought by Hohen-berg Brothers Company against George E. Gibbons & Company for breach of contract for delivery of cotton. Trial was before the court without the aid of a jury. The trial court rendered judgment for Gibbons and that Hohenberg Brothers take nothing. From that judgment, Hohenberg Brothers has duly perfected its appeal to this Court.

Hohenberg Brothers Company is a cotton merchant. They buy cotton from brokers at the farmer level and ship it to domestic mills as well as to all over the world. George E. Gibbons and Company was a cotton brokerage firm engaged in the business of buying cotton directly from the farmers in this area and in turn selling it to various purchasers including Hohenberg Brothers.

The custom of the business followed by Gibbons was for Mr. Gibbons, or one of his authorized commission cotton buyers, to telephone certain farmers known to them and generally negotiate an oral understanding to purchase the farmers’ cotton acreage for a certain number of points over the government loan price. Shortly thereafter, Gibbons would cause to be forwarded to the farmer a written contract which was intended to merge the oral discussions into a firm written agreement. Thereafter, Gibbons would in turn orally contact a company, such as Hohenberg Brothers, inquiring as to whether they would be interested in purchasing such a quantity of cotton from them at a certain price over the government cotton loan value. If an affirmative response was received, Gibbons would forward a written confirmation to the purchaser thereby eventually binding the seller and purchaser.

In April of 1973, Gibbons contacted a Mr. T. A. Setliff, a cotton farmer in this area. Setliff orally agreed that he would sell to Gibbons his 295 acres of cotton for a price fixed at 1600 points over the 1973 government loan price. Shortly thereafter, on or about April 23, 1973, there was an oral conversation between Gibbons and a Mr. Bill Dugan, a representative of Hohenberg Brothers, whereby Hohenberg Brothers orally agreed to purchase “Setliff’s 295 acres of cotton” from Gibbons for a price 1650 points over the 1973 government cotton loan price. Further, a written confirmation contract was sent to Setliff and to Hohenberg Brothers from Gibbons. Upon receipt of the confirmation agreement .by Hohenberg Brothers, it was approved and executed by a Mr. Gene Glotybach, secretary/treasurer of the Hohenberg Brothers Company. At this time, Gibbons had not yet received the written confirmation contract back from Setliff.

In June of 1973, Mr. George Gibbons died as a result of a heart attack. The Trust Department of the Corpus Christi State National Bank qualified as executor of his estate. Following the time that the oral contract was made with Setliff, Gibbons repeatedly tried to get Setliff to sign a written confirmation of their oral agreement without success. Subsequent to Mr. Gibbons’ death, a representative of the trust department of the Bank again unsuccessfully made an effort to secure the written confirmation from Setliff.

On August 29, 1973, a letter was dispatched from the Corpus Christi State National Bank’s trust department to Mr. Glo-tybach of Hohenberg Brothers, informing them that Setliff has given them every indication that he does not intend to deliver his 295 acres of cotton. On September 4th, 1973, Hohenberg received the trust department’s letter of August 29, 1973.

On November 30,1973, Hohenberg Brothers brought suit against Gibbons and the Estate of George E. Gibbons contending that Gibbons had breached the contract for. its failure to deliver the 295 acres of cotton. There is nothing in the record to indicate that either Gibbons or Hohenberg Brothers attempted to bring Setliff into this particular lawsuit. During the trial, Gibbons defended the suit contending that the written agreement entered into between them and Hohenberg Brothers contained certain conditions precedent which had not been met which therefore excused them from liability. The trial court rendered judgment for Gibbons that Hohenberg take nothing. The trial court filed its findings of fact and conclusions of law. From this judgment, Hohenberg Brothers has perfected its appeal to this Court.

In Hohenberg’s first three points of error, it is contended in effect that the trial court erred in rendering judgment for the defendant for the reason that if Farmer Set-liff had not delivered the warehouse receipts, samples and Smith-Doxey classification cards to Gibbons, it was Gibbons’ obligation to cause Setliff to bring such items to him so that they could be delivered to Hohenberg Brothers. Generally, Hohen-berg is contending that there exists no conditions precedent to Gibbons’ liability for failure to deliver the cotton as was found by the trial court.

The trial court in its findings of fact No. 9 stated as follows:

“9. The written confirmation contract contained several conditions some being conditions precedent, the same being as follows:
(a) That Plaintiff (Hohenberg Brothers) had purchased the entire production on 295 acres of lint cotton which might be produced, gathered and ginned by September 30,1973, and that was eligible for the 1973 government loan price, Smith Doxy Classification, and which was grown on Mr. T. A. Setliff’s farm.
(b) All grades and staples from said acreage on said farm must be eligible for the 1973 government loan. Micronaire of 3.3 and up bales with Micronaire below 3.3 would be discounted according to the 1973 government discounts for Micro-naire. Bales of classification showing bark or grass on Smith-Doxy cards were to be discounted according to the 1973 government discounts for bark or grass.
(c) The cotton was to be shipped F.O.B. Conpresses, Corpus Christi Compress Warehouse Receipt Net Weights. TCA & CC Cotton Exchange Rules.
(d) Shipment of such cotton by the George E. Gibbons & Co., to Plaintiff was not to take place until a time when the George E. Gibbons & Co., had received the Compress Warehouse Receipts, samples and Smith Doxy Classification cards from T. A. Setliff, at that point they would be invoiced to Plaintiff.”

Appellant Hohenberg Brothers suggests that the trial court was correct in finding that the delivery of the classification cards, receipts and samples to Gibbons from Set-liff was a condition precedent, but the condition was to Gibbons being paid, not to his liability. Gibbons, on the other hand, contends that that provision (in Gibbons’ contract with Hohenberg Brothers) titled “Shipment”, which states:

“AS SOON AS COMPRESS WAREHOUSE RECEIPTS, SAMPLES AND SMITH-DOXEY CLASSIFICATION CARDS ARE DELIVERED TO GEO. E. GIBBONS & CO., THEY WILL BE INVOICED TO YOU.”

constitutes a condition precedent to establishing any liability or duty on its part. Gibbons argues that there was no liability or duty to make any shipment to Hohen-berg Brothers by Gibbons until Gibbons had received the compress warehouse receipts, samples and Smith-Doxey classification cards from Setliff, which were at no time delivered to them.

The record discloses that there was first an oral agreement between Ho-henberg Brothers and Gibbons as to the sale of cotton on Setliff’s 295 acres of land. This oral agreement was subsequently reduced to a written agreement. The law of general application is that the execution of a contract in writing is deemed to have set aside all oral agreements theretofore made. Any representations made prior to or contemporaneously with the execution of the written contract are inadmissible in the absence of accident, fraud or mistake of fact, to contradict, change or add to the plain terms of such written contract. See Hidalgo County v. Pate, 443 S.W.2d 80 (Tex.Civ.App. — Corpus Christi 1969, writ ref’d n. r. e.); Paxton v. Spencer, 503 S.W.2d 637 (Tex.Civ.App.—Corpus Christi 1973, no writ). Hohenberg does not contend that such contract is ambiguous or uncertain.

If there is no ambiguity, the construction of a written instrument is a question of law for the court. Myers v. Gulf Coast Minerals Management Corporation, 361 S.W.2d 193 (Tex.Sup.1962). It has long been the rule that a contract not alleged to be ambiguous must be construed so as to ascertain the true intent of the parties as expressed in the language used in the instrument itself. The instrument alone, in the usual case, will be deemed to express the intention of the parties, for it is objective, not subjective, intent that controls. Chaffe v. Murray, 492 S.W.2d 680 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.); City Of Pinehurst v. Spooner Addition Water Company, 432 S.W.2d 515 (Tex.Sup.1968). There being no ambiguity either pled or proved, the question before us is whether, when viewing the entire instrument from its four corners, the parties intended that there be certain conditions precedent to Gibbons becoming liable on the contract.

The contract itself sets out all the terms and conditions that the parties agreed to be bound by. The contract shows: first, that Hohenberg Brothers agreed to buy the entire production on 295 acres of lint cotton produced, gathered and ginned by September 30, 1973. Next, the cotton had to be from Setliff s farm and that all grades and staples had to show that the cotton was eligible for the 1973 government loan. The third condition set out in the contract, (assuming that the others had been met) was that as soon as compress warehouse receipts, samples and Smith-Doxey classification cards were delivered to George E. Gibbons & Company, the cotton would be invoiced to Hohenberg Brothers for payment.

A condition precedent in the law of contracts may be either a condition which must be performed before the agreement of the parties shall become a binding contract, or it may be a condition which must be fulfilled before the duty to perform an existing contract arises. So, such conditions may relate either to the formation of contracts or to liability under them. Perry v. Little, 377 S.W.2d 765 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.); 17A C.J.S. Contracts § 338, p. 318-319; Continental Transfer & Storage Company v. Swann, 278 S.W.2d 413 (Tex.Civ.App.—Amarillo 1954, writ dism’d).

When Gibbons’ liability on a contract depends on the performance or happening of a condition precedent, Hohenberg Brothers must allege that the condition has happened or has been performed, or they must show facts giving rise to a waiver of performance of the conditions precedent. 13 Tex.Jur.2d Contracts §§ 377, 390; Parkview General Hospital, Inc. v. Eppes, 447 S.W.2d 487 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.). See also 17A C.J.S. Contracts § 338.

Here, Gibbons’ contractual duty to deliver the specific cotton and to invoice Hohen-berg Brothers was conditioned upon pleading and proving that: 1) the entire production on the 295 acre Setliff tract was produced, gathered and ginned by September 30,1973; 2) that said cotton was eligible for the 1973 government loan, Smith-Doxey classification; 3) that such cotton was from the Setliff farm; and, 4) that Gibbons receive the compress warehouse receipts, samples and Smith-Doxey classification cards showing that the subject cotton was in existence.

Hohenberg Brothers neither pled nor proved the existence of the conditions, nor that such conditions had occurred or been performed, nor that there was a waiver of the performance of those conditions. City of San Antonio v. Guido Bros. Construction Company, 460 S.W.2d 155 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.); 13 Tex.Jur.2d Contracts §§ 377, 390. Without pleading or proving such conditions and their happening or occurrence, Hohenberg Brothers would not be entitled to recover. It is the general rule of the law of contracts that where an unambiguous writing has been entered into between the parties, the courts will give effect to the intentions of the parties as expressed or as is apparent in the writing. City of Pinehurst v. Spooner, supra. Where the terms are still not clear, the court will hear oral testimony to ascertain the intent of the parties as expressed by the language used. City of Pinehurst v. Spooner Addition Water Company, supra. See also Ohio Oil Company v. Smith, 365 S.W.2d 621 (Tex.Sup.1963); Williston on Contracts § 610; Restatement of the Law of Contracts, § 230 (1932).

Here the record shows that Mr. Dugan, vice president of Hohenberg Brothers, in response to being questioned about the necessity of Gibbons receiving the subject documents before he would be able to ship the cotton, testified as follows:

“Q All right. I was writing and did not hear it at that time, but when you receive cotton from a buyer like Mr. Gibbons, do you then have to receive the green cards with it?
A Only as — the green cards have to accompany it as proof of the classification to determine the loan value.
Q What about warehouse receipts and compress receipts and things of that sort?
A The warehouse receipts, of course—
Q Allows you to take possession?
A To take possession of the cotton, yes.”

This knowledge of the necessity of having the warehouse receipts, Smith-Doxey classification cards and samples is also reflected in the testimony of Erma Mae Heaton, one of the cotton buyers for George E. Gibbons & Company. She testified as follows:

“Q Now, over the number of years that you worked for Mr. Gibbons, as farmers would come in to bring their cotton that he had bought on contract, what would they bring?
A The warehouse receipts, the green cards, and the samples.
Q Was it really necessary to — or for the George Gibbons Company to have warehouse receipts, the green cards and the samples to resell the cotton?
A Yes, sir.
Q Or to make delivery of the cotton to anyone?
A Yes, sir.
Q Are you familiar with the contract under consideration today, the dealings that Mr. Gibbons had with T. A. Setliff?
A Yes, sir.
Q Do you know if Mr. T. A. Setliff ever delivered to the George Gibbons Company any green cards, warehouse receipts, or samples from his two hundred ninety-five acres of cotton?
A No, sir; he did not.”

It seems clear then from the testimony of representatives of both parties that the contract provided, and both parties realized, that before any cotton could be delivered to Hohenberg Brothers from Gibbons, the warehouse receipts, (which would transfer title to the cotton), the Smith-Doxey classification cards, and the cards, and the samples would have to be delivered by Setliff to Gibbons. Hohenberg Brothers neither pled nor proved this condition nor any other condition existed and the occurrence of such that would cause Gibbons to become liable for failure to deliver the Setliff cotton. Appellant’s points of error 1-3 are overruled.

Appellant Hohenberg Brothers next complains in points of error No. 6 and 17 of the court’s finding No. 12 and its conclusion of law No. 8, that there was no evidence, or insufficient evidence to support such finding and conclusion and that such were against the overwhelming weight and preponderance of the evidence. Said finding and conclusion read as follows:

“12. No conditions precedent as contained within the written confirmation contract were waivable solely at the option of the Plaintiff, but were established in the written agreement for the benefit of both parties.
“8. No condition within the written confirmation contract was waivable solely by the Defendant, but all conditions therein were for the mutual benefit of both Plaintiff and Defendant.”

Hohenberg Brothers is specifically arguing that those conditions, i. e. requiring the cotton to be produced, gathered and ginned by September SO, 1973 and those relating to time of delivery, grade, and classification were solely for the benefit of the buyer and could be waived by him.

As to appellant’s no evidence point, after considering only that evidence and inferences tending to support the finding and disregarding all evidence and inferences to the contrary, we find that there was evidence of probative force to support the above findings. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). The evidence shows that such conditions were not waivable solely by Hohenberg Brothers or Gibbons, but were, as the trial court held, for the benefit of both parties. In both the contract between Hohenberg Brothers and Gibbons and the contract to be entered into between Gibbons and Setliff, there appears the requirement that the cotton must be ginned by September 30. Mr. John Leslie Brough, manager of Edroy Co-op Gin, testified that all cotton had to be ginned by September 25, and that he could not gin any other cotton after the 25th day of September without getting permission from Commissioner White or some government official to carry it over. The reason for this, Mr. Brough testified, is because of boll-weevil control.

With respect to those conditions relating to delivery, grade and classification, these also were not waivable solely at the option of the buyer, Hohenberg Brothers. First, the record shows that Gibbons could not deliver Setliff⅛ cotton to Hohenberg Brothers until Setliff delivered the cotton and the required documents. These requirements as to classification, grade and ginning by September 30, 1973, were important variables with respect to price that Gibbons had contracted to pay to the farmer. If such conditions could be waived by Hohenberg Brothers at their option, Gibbons might end up paying more than the cotton was valued at. This is particularly true in light of the fact that evidence was admitted that ginning earlier in the year produced better grades of cotton with the poorer grades being produced during the latter part of the ginning season.

After considering all the evidence, we find that the court’s findings were supported by sufficient evidence and the same were not against the overwhelming weight and preponderance of the evidence. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 359 (1960). Appellant’s points of error 6 and 17 are overruled.

In points of error No. 7, 9 and 10, Hohenberg Brothers claim that the trial court erred in making its findings of fact numbers 10, 14 and 15 respectively. These findings read as follows:

“10. In May or June, 1973, Mr. T. A. Setliff repudiated his oral negotiations and refused to execute the written contracts sent to him by Mr. George E. Gibbons.
14. Authorized representatives of that department (Trust department of the Corpus Christi State National Bank) made repeated contacts with Mr. T. A. Setliff in an effort to secure the written confirmation. On August 7, 1973, Mr. R. L. Garrett, of Corpus Christi State National Bank, again contacted Mr. T. A. Setliff and was finally and fully rebuffed wherein Mr. Setliff informed Mr. Garrett that he had no contact with the George E. Gibbons & Co., and if there was a written confirmation at his home he did not intend to sign it.
15. On August 8,1973, Mr. R. L. Garrett informed Mr. Bill Duggan, an officer with the Hohenberg Bros. Company, of the discussion with, and decision of, Mr. T. A. Setliff.”

Appellant Hohenberg Brothers complains that there is no evidence and insufficient evidence to support these findings. Gibbons, in their brief, admit that there appears to be very little direct evidence sustaining those particular findings of fact as found by the court. We tend to agree. The only evidence admitted with respect to the above findings concern Mrs. Heaton’s (secretary and cotton buyer for George E. Gibbons Co.) continued efforts to get Setliff to sign the confirmation contract which efforts continued beyond May of 1973. Such evidence would support only part of finding No. 14 leaving findings No. 10 and 15 unsupported in the evidence. However, since we have already held that there were certain conditions precedent which were never pled nor shown to have occurred, the above additional findings become immaterial to the judgment. Although it was error for the trial court to have made such specific fact findings, such error did not cause the rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure (1967).

Appellant Hohenberg in its points of error numbers 8, 13, 14, 15 and 16 complains of Finding of Fact No. 11 and conclusion of law No. 2, 5, 6, and 7. These findings and-conclusions relate to appellant’s failure to plead and prove the performance of any of the conditions precedent, and that Gibbons was under no duty to perform until such conditions had happened or occurred. These points are shades of the other points which we have already discussed in detail. However we have considered them and they are overruled. Garza v. Alviar, supra.

Appellant, in its points of error Nos. 11 and 12, complains of the trial court’s findings Nos. 19 and 20 which read as follows:

“19. The Plaintiff made no effort to mitigate that loss by attempting to go out into the market place and purchase additional cotton at that time to replace the 295 acres which Mr. T. A. Setliff refused to deliver to the George E. Gibbons & Co.
20. The plaintiff did not establish damages with sufficient clarity or certainty.”

Hohenberg Brothers complain of such findings on a multitude of grounds including: 1) no evidence to support such findings; 2) there was insufficient evidence to support such findings; 3) and such findings were against the great weight and preponderance of the evidence. Because of our holding that there existed certain conditions precedent which must have occurred before Gibbons became liable for failure to deliver the cotton to Hohenberg Brothers, it becomes unnecessary to discuss these points. Had there been no conditions precedent, such points might have been relevant. These points are overruled.

In Hohenberg Brothers’ point of error No. 18, it contends that the trial court erred in not granting it recovery under its allegations contained in its original petition, alleging that Gibbons represented it had procured and was in a legal position to deliver to Hohenberg Brothers the cotton produced on the Setliff farm and that it was damaged by such misrepresentations. Here, Hohenberg Brothers pled that it was damaged by the alleged false representations and along with actual damages was entitled to punitive damages in the amount of $5,000.00. The essential elements of actionable fraud which Hohenberg Brothers had the burden of proving are: 1) that a false representation was made by Gibbons; 2) that Hohenberg Brothers relied upon such representation; 3) that Hohenberg Brothers acted in reliance thereon; and 4) that Hohenberg Brothers was damaged as a result of such representations. Menking v. Bishman Manufacturing Company, 496 S.W.2d 762 (Tex.Civ.App.—Corpus Christi 1973, no writ); Finger v. Morris, 468 S.W.2d 572 (Tex.Civ.App.—Houston (14th Dist.) 1971, writ ref’d n. r. e.). Although pleading misrepresentation, there were no material fact issues raised by the evidence to support a finding of fraud or misrepresentation. For this reason, appellant’s point of error No. 18 is overruled.

We have carefully considered all of appellant’s points of error and they are overruled.

Judgment of the trial court is affirmed.


text:
    Jack FOLLIOTT, Appellant, v. Gilda S. BOZEMAN et al., Appellees.
    No. 934.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 26, 1975.
    Rehearing Denied Aug. 29, 1975.

      Orrin W. Johnson, Johnson & Davis, Har-lingen, for appellant.
    Benjamin S. Hardy, Hardy, Sharpe & Rodriguez, Brownsville, for appellees.
   OPINION

YOUNG, Justice.

This suit to cancel a trustee’s deed was brought in district court by three surviving children of Gilbert C. Sepulveda, deceased, against Jack Folliott, who was purchaser at the trustee’s sale of 36.12 acres of land in Cameron County, Texas. Defendant filed several motions to abate and dismiss plaintiffs’ suit, together with a cross-action for injunction and declaratory relief. In the cross action, defendant brought in as a cross-defendant Mrs. Gloria Sepulveda, Gilbert’s surviving widow.

On May 1, 1974, the pleas in abatement and application for temporary injunction came on for hearing. There in open court the plaintiffs made their motion to dismiss for want of jurisdiction on grounds that the county court at law, sitting in probate, has exclusive jurisdiction of the matters urged by defendant because the decedent’s estate is still pending there. After receiving evidence and after the conclusion of the hearing, the trial court on July 16,1974, entered judgment partially set out as follows:

“It is, accordingly ORDERED that the Court does not accept jurisdiction for any purpose in the above case, and the respective claims and causes of action of the parties are accordingly dismissed with prejudice.”

From that' judgment all parties perfected their appeals. The plaintiffs, however, are here asking us to affirm the trial court’s judgment. Although the defendant is also requesting us to affirm, he requests that we modify and reform the trial court’s judgment so that it will reflect dismissal upon meritorious grounds rather than upon the jurisdictional ground relied on by the trial court.

In that regard, he says that the dismissal should have been predicated on the plaintiff’s failure to tender into court the amount required to make defendant whole after the plaintiffs, by this suit, sought to invoke the equitable remedy of cancellation of the trustee’s deed.

The plaintiffs counter by contending that the trial court dismissed properly on jurisdictional grounds because: when the amendment to Article V of Section 8 of the Texas Constitution was adopted by the voters on November 6, 1973, jurisdiction was changed from the district court to the statutory county court at law; that the estate of Gilbert C. Sepulveda, deceased, was in due course of administration; that the county court at law had obtained jurisdiction of the estate; that, having obtained jurisdiction, the county court at law was impowered to hear and determine all matters incident to the estate of the decedent, including all actions for trial of title to land incident to such estate, because of the amendment to section 5 of the Probate Code passed by our legislature in 1973 pursuant to the amendment of the Constitution’s Article V.

The 82.12-aere tract of land in question has been subject to much attention since its acquisition by Gilbert on March 29, 1966. He, thereafter, on October 27, 1966, conveyed a one-fourth undivided interest to each of two of his children, Raquel Sepulve-da Aldama and Felix Sepulveda, who are two of the plaintiffs in this suit. Then he and the two children executed a deed of trust second lien on the tract April 26,1867, in favor of the National Bank of Commerce of Brownsville; the first lien (a vendor’s lien) had been impressed on the tract when it was originally purchased by Gilbert.

Gilbert died April 20, 1972. His widow, Gloria, as independent executrix named in Ms will, applied on September 14, 1972, for letters testamentary, caused a probate notice to be issued, and filed the will. Letters testamentary were issued to her on December 3, 1973, after she had filed her oath.

The note secured by the second lien became delinquent and the bank posted notices for foreclosure on June '5, 1973. On that day, the property was struck off to the defendant Folliott and he received the trustee’s deed which is the subject of the present suit. He then paid off the first lien.

Then on April 23, 1974, Mrs. Sepulveda attempted to resign as independent executrix in deference to the other Sepulveda child, Gilda S. Bozeman, who together with the other two children are plaintiffs in this suit. That same day, Gilda was appointed by the probate court administratrix with will annexed of Gilbert’s estate. The next day, April 24,1974, the probate court vacated the order accepting the resignation of Gloria and appointing Gilda until a hearing could be had after due notice to all concerned. Those matters seem to be still pending. Nevertheless, on April 23, 1974, Gilda, as purported administratrix of Gilbert’s estate, and the other two children filed this suit attempting to cancel the trustee’s deed.

We note that at least five suits in district court and two suits in county court at law have been filed involving, either directly or indirectly, this Sepulveda tract of land. Until now the suit at bar is the only suit that has resulted in an appeal to this Court.

Our resolution of this appeal requires our examination of the pertinent constitutional and statutory provisions invoked by the parties: Tex.Const. art. V, § 16 and § 8 (Supp.1974); Tex.Rev.Civ.Stat.Ann. arts. 1906, 1951 (1964); Tex.Pro.Code Ann. § 5 (Supp.1974).

1. Article V, Section 16 provides in part: “County Courts; jurisdiction shall not have jurisdiction of suits for the recovery of land . . . The County Court shall have the general jurisdiction of a Probate Court; (Emphasis supplied.)
2. Article V, Section 8 now provides in part (as amended in 1973):
“The district court, concurrently with the county court, shall have the general jurisdiction of a probate court. . The Legislature, however, shall have the power,, by local or general law, Section IS of Article V of this Constitution notwithstanding, to increase, dimmish or eliminate the jurisdiction of either the district court or the county court in probate matters, and in cases of any such change of jurisdiction, the legislature shall also conform the jurisdiction of the other courts to such change. (Emphasis supplied.)
3. Article 1906 provides in part: “The district court shall have original jurisdiction in civil cases of: . Suite for the trial of title to land and for the enforcement of liens thereon.” (Emphasis supplied.)
4. Article 1951 provides in part: “The county court shall not have jurisdiction ... of suits of the recovery of lands, nor suits for the enforcement of lien upon land, . . .” (Emphasis supplied.)
5. Section 5 now provides in part (as amended in 1973): . . In those counties where there is a statutory probate court, county court at law, or other statutory court exercising the jurisdictions of a probate court, all applications, petitions and motions regarding probate, administrations, guardianships, and mental illness matters shall be filed and heard in such courts, and the constitutional county court, rather than in the district courts, . . . All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate, including but not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate and of all actions for trial of the right of property incident to an estate.” (Emphasis supplied.)

All of which brings us back to the contentions of the parties. Plaintiffs would have us hold that the county court at law has exclusive jurisdiction of this suit because of that part of the amendment to section 5 of the Probate' Code which states that all courts exercising original probate jurisdiction shall have power to hear all matters incident to an estate; including trials of title to land and of enforcement of liens. To so hold would require us to find that section 5 repeals that part of article 1906 which provides that the district court shall have original jurisdiction in suits for trial of title to land and of enforcement of liens.

On the other hand, the defendant would have us hold that the district court has, at least, concurrent jurisdiction with the county court at law of this suit because section 5 does not provide that it repeals article 1906, nor is that statute even mentioned in section 5. We accept the defendant’s contentions.

We agree with the statement about this matter in 53 Tex.Jur.2d Statutes § 102, set out in part as follows:

“Where there is no express repeal, the presumption is that in enacting a new law the legislature intended the old statute to remain in operation. The two acts will persist unless the conflicting provisions are so antagonistic and repugnant that both cannot stand.
Repeal of statutes by implication is never favored or presumed. . .

We hold, therefore, that a reasonable construction of section 5 and article 1906 is that the district court and the county court at law had concurrent jurisdiction to hear this suit for the cancellation of a trustee’s deed. The trial court, therefore, erred when it dismissed with prejudice on jurisdictional grounds the respective claims and cause of action of the parties.

Next, the problem is how to dispose of this appeal in that all parties request that we affirm the trial court’s judgment; none request reversal. The defendant, however, asks us to reform that judgment to reflect a disposition on the merits. This we cannot do because the trial court, although receiving evidence, never ruled on the merits of the defendant’s pleas in abatement and request for temporary injunction. See Grow v. First Nat. Bank of Whitney, 64 S.W.2d 377 (Tex.Civ.App.—Waco 1933, writ ref’d).

Because we have held in the foregoing part of this opinion that the district court had jurisdiction to try this case, including the pleas in abatement and application for temporary injunction, we reverse the trial court’s judgment, based on jurisdictional grounds, of dismissal of the case. Rule 434, Texas Rules of Civil Procedure. Further, the trial court is instructed to reinstate the. case on its docket for further proceedings in accordance with this opinion.

Reversed with instructions.