author: HALL, Justice.

text:
    William MARLOW et ux., Appellants, v. Cynthia MEDLIN, Appellee.
    No. 5775.
    Court of Civil Appeals of Texas, Waco.
    Nov. 17, 1977.

      Herbert E. Evans, Austin, for appellants.
    J. Terry Weeks, Levbarg, Weeks & Chapman, Austin, for appellee.
   HALL, Justice.

This is a common law fraud action for actual and exemplary damages brought by Cynthia Medlin against William Marlow and wife Elli Marlow as partners. The gist of plaintiff’s suit was that her landlords were defendants’ vendees under a contract of sale of the premises she was renting, and that she was induced by defendants’ false representations to pay defendants rent money she was withholding from her landlords as an offset against a debt they owed to her. Defendants answered with a general denial, several special pleas, and a counterclaim for unpaid rent. After a hearing without a jury, judgment was rendered awarding plaintiff actual and exemplary damages, and denying defendants recovery on their counterclaim. Defendants appeal. We affirm the awards of damages on plaintiff’s action, but we reform the judgment to allow defendants recovery on their counterclaim.

On July 3,1973, defendants sold a duplex-type house and lot located in the City of Austin, Texas, to Tom Kosowski and Mike Vogel under a written contract of purchase and sale. The terms of the contract called for a total price of $41,600.00, a down pay-' ment of $4,000.00, payment of the balance in monthly installments of $400.00, and execution by defendants of a general warranty deed to the purchasers upon payment of the entire purchase price. The monthly payments were payable to defendants at Silver Lake, Indiana. Although the contract provided that if the purchasers breached its terms defendants would be authorized to terminate the contract and retain all money paid by the purchasers as rental and liquidated damages, nothing was stated in it concerning the parties’ rights to rent paid by tenants of the property. However, the language of the whole instrument (which we need not set forth) clearly evidenced an intention that the purchasers should have possession of the premises. On the day the contract of sale was executed, Kosowski and Vogel borrowed $2,700.00 from plaintiff, executed their promissory note to plaintiff for the loan, and used the borrowed money in making the $4,000.00 down payment to defendants. The note from Ko-sowski and Vogel to plaintiff called for full repayment of the loan by January 1, 1974, with 9% interest.

Within a few days after execution of the contract of sale and the note in July, 1973, plaintiff, who was a student at the University of Texas at Austin, leased the house from Kosowski and Vogel at a rental of $175.00 per month. She also managed the premises in an informal fashion, collected rent from other tenants, and deposited it with her own rent in Kosowski’s and Vo-gel’s bank account. Kosowski and Vogel never made any payment of either interest or principal on plaintiff’s note, and in August, 1974, plaintiff determined to withhold her rent from them. She did so for the months of September, October, and November, 1974. By this time, Kosowski and Vo-gel were in default on their payments to defendants under the contract of sale.

Plaintiff testified that defendant William Marlow telephoned her twice in the month of November, 1974. Her account of their conversation is as follows:

“[On the first call] Mr. Marlow wanted to know what happened, what had happened to Mr. Vogel and Mr. Kosowski and why he hadn’t been receiving the full amount of house payments from them. I speculated as to why I thought that he was not receiving that money, and one of the things I told him was that I was withholding my rent from them because they had not attempted to repay my loan. And he became very angry with me and told me I had no right to do that; that it wasn’t my money, that it wasn’t — well, it wasn’t my money to keep. That it was his money and I was stealing from him if I was withholding the rent, and I told him I did not believe that was so because I was not renting from him, and I was renting from [Kosowski and Vogel], He was very insulted that I was doing it to him, and I told him I was not doing it to him but I was doing it to [Kosowski and Vogel]. He became very angry with me and told me — like I said, he told me I had no right to do that and he said I was stealing from him and he was going to call his attorney and find out what he could do about it, and then he said he would call me back. In a few days to two weeks, I am not sure how long it was, he called me back and he told me that he had checked with his attorney and I had no right to that money; that I was stealing it and that he would call the Sheriff, and I had — he wanted, he wanted me to send the money to him instead of withholding it from Vogel and Kosowski. He said that if I didn’t send it that he could get me in trouble, that he would call the Sheriff. After that last conversation, I sent him the money. If it were not for those conversations I would not have sent him the money. I sent it then because I was afraid not to.”

Plaintiff’s brother resided with her in the leased premises. He testified, “Cynthia informed me of the first conversation. She was very upset and scared over it, and she asked me to listen in on the second conversation. I did.” He gave this account of Mr. Marlow’s attitude and statements:

“Mr. Marlow was very upset, very indignant. Insulted my sister profusely and insulted me, my sister, and the other people in the house in general. Was very flagrant and inflammatory toward Michael Vogel and Thomas Kosowski and proceeded to tell Cynthia, my sister, that if she did not send him the money that she had been withholding for rent against Mike Vogel and Thomas Kosowski, that if she did not send the money that he would have the Sheriff come out and arrest her, that he had his lawyer to check into the legality of it, and that she was stealing his money. After the conversation was completed Cynthia was very upset, very scared. She was in tears, and being very scared she went ahead and sent the money”

On December 2nd, after the conversations, plaintiff mailed defendants $476.44, stating in her letter of transmittal that this sum was the rent for the months of September, October, and November, 1974, at the rate of $175.00 per month, less $48.56 paid by her for a water bill which Kosowski and Vogel should have paid.

Mr. Marlow denied that he told plaintiff to pay the rent she was withholding to him.

On December 27, 1974, defendants rescinded the contract of sale, notified Ko-sowski and Vogel that they had done so, and caused an instrument reflecting those facts to be filed in the deed records of Travis County, Texas.

Plaintiff continued living in the house until March 20,1975, when she was judicially evicted under a forcible detainer action filed by defendants in the Justice Court of Travis County. During this time she paid only $175.00 for rent. This payment was voluntarily made by her to defendants in January, 1975. She testified that this was a “good-faith gesture” on her part when they were discussing the possibility of her purchase of the property.

The trial court made and filed the following findings of fact and conclusions of law: “FINDINGS OF FACT

“1. In December, 1974, Cynthia Med-lin was a tenant of Tom Kosowski and Mike Vogel at 3111 Hemphill Park, Austin, Texas. At that time Vogel and Ko-sowski were owners of 3111 Hemphill Park under a Contract of Sale from the Defendants William and Elli Marlow.
“2. Cynthia Medlin had advanced Ko-sowski $2,700.00 which was used as part of the down payment for the purchase of 3111 Hemphill Park by Vogel and Kosow-ski from the Marlows. The Marlows knew that Cynthia Medlin had advanced Kosowski this money for this purpose.
“3. Vogel and Kosowski executed a promissory note to Cynthia Medlin for the money she had loaned them.
“4. Vogel and Kosowski defaulted on their payments to Cynthia Medlin on the promissory note, and Cynthia Medlin withheld her rent payments from Vogel and Kosowski as an offset against the Vogel and Kosowski note.
“5. The Marlows learned that Cynthia Medlin was withholding rent from Vogel and Kosowski. William Marlow told Cynthia Medlin that the rent she was withholding belonged to him since Vogel and Kosowski had also defaulted on their obligation to the Marlows on the Contract of Sale.
“6. William Marlow falsely represented to Cynthia Medlin that she had no right to the money she was holding, that her holding the money was tantamount to theft from the Marlows, that he had consulted a lawyer about the matter and that he could send the Sheriff to get her.
“7. The false statements by William Marlow were intentionally made to Cynthia Medlin for the purpose of getting $476.44 which Cynthia Medlin had withheld from Vogel and Kosowski. Cynthia Medlin believed that she could be arrested as William Marlow had threatened. The false statements by William Marlow were material, and because of her reliance on these material false statements, Cynthia Medlin turned over the $476.44 to the Marlows.
“8. Cynthia Medlin’s reasonable and necessary attorney’s fees in this cause are $1,500.00.”
“CONCLUSIONS OF LAW
“1. The acts of the Defendants constituted fraud against Cynthia Medlin.
“2. Cynthia Medlin is entitled to $476.44 as actual damages resulting from this fraud and $750.00 as exemplary damages.
“3. Cynthia Medlin is entitled to $200.00 as her reasonable attorney’s fee for the securing of the Order of this Court whereby the Defendants were Ordered to appear for oral depositions.
“4. William Marlow had no greater right to the money than Cynthia Medlin.”

Judgment was rendered awarding plaintiff $476.44 actual damages and $750.00 exemplary damages on her fraud claim. Defendants were denied any recovery on their counterclaim.

Plaintiff was also awarded $200.00 as reasonable attorney’s fees for securing an order requiring defendants to appear for depositions, but this award is not questioned on this appeal.

Defendants assert that plaintiff did not establish that any representation made by them was false, or that plaintiff suffered injury. We disagree. The purchaser under an executory contract of sale who goes into possession is entitled to all lease or rental money not reserved to the vendor by agreement of the parties. Robinson v. Smith, 130 S.W.2d 381, 384 (Tex. Civ.App. — Waco 1939, writ ref.); Dallas Joint Stock Land Bank v. Lancaster, 91 S.W.2d 890, 891 (Tex.Civ.App. — Waco 1936, no writ); F. Groos & Co. v. Chittim, 100 S.W. 1006, 1012 (Tex.Civ.App.1907, no writ); 35 Tex.Jur.2d 643, Landlord And Tenant, § 138; 58 Tex.Jur.2d 470, Vendor And Purchaser, § 250. This rule applies even if the vendee is in default on the contract, so long as the contract is in force. 35 Tex.Jur.2d 641, Landlord And Tenant, § 137. This is because of the remedies available to the seller who may, upon the purchaser’s default, affirm the contract and sue for damages or for specific performance, or rescind the contract.

In our case, Kosowski and Vogel, in possession of the property under the executory contract of sale, were entitled to the rents until the contract was rescinded by defendants on December 27,1974. If plaintiff had paid the rent in question to Kosowski and Vogel, defendants could not have compelled her to repay it to them. See Jones v. Hutchinson, 21 Tex. 370, 376-77 (1858). Defendants’ representations to plaintiff that the rent money was “their money” and that they were entitled to receive it were, accordingly, false.

Defendants’ statement to plaintiff that she had no right to withhold the rent was also false. The tenant is entitled to set off a debt owing to him by the landlord against the landlord’s claim for rent. Walker v. Amherg, 284 S.W. 334, 335 (Tex. Civ.App. — Austin 1926, no writ); Harris v. McGuffey, 185 S.W. 1024 (Tex.Civ.App.— Texarkana 1916, no writ); 35 Tex.Jur.2d 653, Landlord And Tenant, § 145. When plaintiff was induced by defendants to pay the rent to them, she lost the opportunity to offset it against her landlords’ debt to her and was thereby damaged in that amount.

Defendants contend that the court’s findings do not support the award of exemplary damages because there were no findings that defendants intended to deceive, defraud or injure plaintiff; and that, in any event, the evidence does not support such findings. These contentions are overruled.

The evidence that defendants were abusive and insulting toward plaintiff, accused her of stealing, and threatened her with arrest when the misrepresentations were made supports an implied finding that defendants acted willfully and maliciously. A finding on this question was not requested by plaintiff or defendants. Under our record, which contains express findings on other elements of plaintiff’s fraud action, the omitted, unrequested finding that defendants acted with malice is “supplied by presumption in support of the judgment.” Rule 299, Vernon’s Tex.Rules Civ.Proc.; Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562, 563 (1944). In turn, this finding supports the award of exemplary damages. 17 Tex.Jur.2d 238, Damages, § 173.

Defendants urge that their representations to plaintiff were simply statements as to matters of law, and therefore will not support an action for fraud. We reject this argument. The general rule is that fraud cannot be predicated upon- misrepresentations as to matters of law. The reason usually given for the rule is that everyone is presumed to know the law, and hence has no right to rely upon such representations made to him by another, and that the representations are to be treated as mere statements of opinion and not of fact. “But it is equally well settled that misrepresentations involving a point of law will be held actionable misrepresentations of fact if it appears that they were so intended and understood.” Safety Casualty Co. v. McGee, 133 Tex. 233, 127 S.W.2d 176, 178 (Tex.Comm.App.1939, opinion adopted). The facts of our case fall within this latter rule. The record shows that defendants had been engaged for many years in the business of buying and selling and leasing properties. Defendants knew that plaintiff was a college student and a tenant of the premises under Kosowski and Vogel. Plaintiff knew that Kosowski and Vogel were delinquent on their payments to defendants under the contract of purchase. Defendants’ misrepresentations to plaintiff as to their right to the rent money and their remedy against her if she withheld it from them were made in an overbearing, threatening manner, assertedly after consultation with legal counsel on the subject. The trial court, as trier of the facts, was justified in believing and finding that defendants’ statements were intended by them as representations of fact and were so understood by plaintiff.

As we have said, plaintiff remained in the house until she was evicted on March 20, 1975. The evidence shows without contradiction that a reasonable rental for the house was $175.00 per month. It also shows without dispute that plaintiff voluntarily paid defendants $175.00 for rent in January, 1975. She testified that this was for the January rent. But plaintiff admitted that she did not pay rent in December, 1974, or in February and March, 1975, to anyone. In their counterclaim, defendants asserted they were entitled to three months’ rent — either for the months of December, 1974, and February and March, 1975, or for the months of January, February, and March, 1975. However, as we have already held, Kosowski and Vogel were entitled to the rent until the contract of sale was rescinded by defendants on December 27, 1974. And, until the rescission, plaintiff had the right to set off her rental payments against the debt owed to her by Kosowski and Vogel. Defendants were entitled to the rent from plaintiff for only the months of January, February, and March, 1975. They have received the January rent. Accordingly, the maximum allowable recovery under their counterclaim would be $350.00.

Plaintiff’s defense to defendants’ counterclaim was the plea of res judicata on the theory that defendants’ right to rent was adjudicated in the Justice Court with defendants’ forcible detainer action. Without detailing the proof on this question, we hold that it is legally insufficient to support plaintiff’s plea.

The trial court’s awards of damages to plaintiff on her fraud action were proper. However, defendants should have been allowed a recovery of $350.00 on their counterclaim. The judgment is reformed to provide for this recovery by defendants. Reformed, the judgment is affirmed.

The costs of the trial and this appeal are assessed 75% against defendants and 25% against plaintiff.


source: Caselaw Access Project

author: DODSON, Justice.

license: Public Domain

text:
    Lillian Garrison POTTS et al., Appellants, v. W. Q. RICHARDS MEMORIAL HOSPITAL and Cottle County, Texas, Appellees.
    No. 8813.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 21, 1977.

      Richard D. Bird, Childress, for. appellants.
    Smith & Baker, Inc., Mike T. Field, Lubbock, for appellees.
   DODSON, Justice.

In this case the appellants are Lillian Garrison Potts, Hattie Garrison Roark, Mat Easter Garrison Williams, Vena Garrison Carr, Roger Garrison, James Wiley Garrison, Shirley Garrison Hargraves, Virginia Mae Garrison, Independent Executrix of the Estate of Barney Garrison, Sr. The appellees are W. Q. Richards Memorial Hospital, a county hospital, and Cottle County, Texas.

The appellees brought suit against the appellants on a sworn account for an alleged unpaid balance of $16,647.70 plus interest and attorney’s fee for hospital services rendered to Maude A. Garrison during her lifetime, as a patient in appellees’ hospital. The appellees sought to establish personal liability against the appellants under § 37 of the Texas Probate Code and the case law construing such section for disposing of property inherited from the decedent without discharging the appellees’ claim.

The case was tried before a jury. At the close of the testimony, the court submitted 13 special issues. After the jury returned its answers to the special issues, the court entered judgment in favor of the appellees against the appellants individually in specific but varying amounts. No judgment was taken or entered against three of the heirs at law of the decedent. The appellants appeal to this Court complaining of the judgment against them. We reverse and remand for the reasons stated herein.

The appellants bring six points of error complaining of the judgment rendered against them in the trial court. In the third and fourth points of error, the appellants complain that there is no evidence or insufficient evidence to establish “what amount” or “how much,” if any, the individual appellants received or inherited from the estate of Maude A. Garrison, deceased. And in the fifth point of error, the appellants complain that the evidence is insufficient to warrant or merit judgment against them in behalf of the appellees. Under these points, the appellants pray that the judgment be reversed and remanded for a new trial. We consider these points of error and the supporting brief sufficient to direct us to a review of the evidence to determine if the same is sufficient to support the judgment entered against these appellants. See Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943); Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 132 (1961); O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex.1976), and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960).

The undisputed evidence shows that the decedent was a patient in appellees’ hospital from July 18, 1968 until her death on January 22, 1973; that Maude A. Garrison died intestate; that no administration was had in the probate court on her estate; that at the time appellees brought their lawsuit their claim was the only outstanding debt against the estate of Maude A. Garrison, deceased; that Maude A. Garrison owned at the time of her death 223 acres of farm real property located in Cottle County, Texas; that the appellants and the other heirs of the decedent sold the real property to a bona fide purchaser for $200 per acre or $44,600.

The jury’s answers to special issues submitted by the court establish the appellees’ claim against Maude A. Garrison in the amount of $16,647.70 plus interest and an attorney’s fee of $5,000. The court entered judgment in favor of the appellees against the appellants individually as follows: Lillian Garrison Potts in the amount of $3,751.89; Hattie Garrison Roark in the amount of $3,751.89; Mat Easter Garrison Williams in the amount of $3,751.89; Vena Garrison Carr in the amount of $3,751.89; Roger Garrison in the amount of $3,751.89; James Wiley Garrison in the amount of $1,875.95; Shirley Garrison Hargraves in the amount of $1,875.95; and Virginia Mae Garrison, Independent Executrix of the Estate of Barney Garrison, Sr., in the amount of $3,751.89, for a total amount of $26,-263.24, which sum included $16,647.70 on the account plus prejudgment interest in the amount of $4,615.54 and attorney’s fees in the amount of $5,000.

Section 37 of the Texas Probate Code, V.A.C.S., in part provides as follows:

. whenever a person dies intestate, all of his estate shall vest immediately in his heirs at law, but . shall still be liable and subject in their hands to the payment of the debts of the intestate; .

The Commission of Appeals of Texas in McFarland v. Shaw, 45 S.W.2d 193 (Tex. Com.App.1932, holding approved) in construing a statute substantially the same as our present § 37, supra, said in part 45 S.W.2d at page 198:

Our Supreme Court has established a well-settled rule that heirs, devisees or legatees who receive property belonging to an estate, against which an unpaid claim exists, do not thereby become personally liable to the claimant for the value of the property so received; the remedy being to enforce the statutory lien against the property in their hands. It is also equally well settled that, if the heirs, devisees, or legatees have disposed of the property or so changed its form as to render it impossible of identification, a personal judgment or recovery may be had of them for its value. Blinn v. W. J. McDonald, 92 Tex. 604, 46 S.W. 787, 48 S.W. 571, 50 S.W. 931; Smith v. Patton (Tex.Com.App.) 241 S.W. 109, 117; Faulkner v. Reed (Tex.Com.App.) 241 S.W. 1002; Hughes v. Hughes (Tex.Civ.App.) 264 S.W. 579. (Emphasis added.)

In this case, the Commission of Appeals reaffirmed the remedy of personal liability in lieu of the remedy of foreclosure since the lien is defeated by a transfer of the property to a bona fide purchaser for value. This principle was first pronounced hypothetically in the early case of Blinn v. McDonald, supra.

Appellees pray in their petition as follows:

. Plaintiffs pray for damages for the destruction of such lien on the above described real properties put beyond Plaintiffs’ reach as a result of said sale; that Plaintiffs allege that such damages amount to $16,647.70, plus interest at the rate and from the period of times as hereinabove alleged, plus attorney’s fees in the amount of $6,600.00, and plus costs of court, and that a judgment be granted to Plaintiffs herein against each of the heirs of MAUDE A. GARRISON respectively, with the exception of those named in Paragraph II hereinabove unless they received property other than the real property described above, for such damages hereinabove set forth, proportionate to the total value of all property received from the MAUDE A. GARRISON Estate by each such heir, and further be held individually liable in the same proportionate amount for attorney fees and court costs, and that Plaintiffs have such other and further relief as they may show themselves entitled, either in law or in equity. (Emphasis added.)

Under appellees’ theory of case, they seek a proportionated personal judgment against each appellant, individually for the unpaid proportion of their claims plus interest and attorney’s fees.

In this case, the court entered judgment against eight of the Garrison heirs at law, in the respective amount set forth above. However, the judgment makes no mention of the three other Garrison heirs. The Ap-pellees’ Second Amended Petition alleges that each of these last mentioned Garrison heirs had, prior to suit, paid a pro rata part of the appellees’ claim. The appellees’ petition alleges and the proof shows the amount that each of these three heirs paid on the claim; however, the proof fails to show the interest of each of such heirs in the real property at the time the same was transferred to the bona fide purchaser. And likewise, the proof fails to show the specific interest owned by each of the appellants in the real property sold to the bona fide purchaser.

We agree that the appellees are not entitled to recover the full amount of the unpaid balance of their debt from each of the heirs of Maude A. Garrison, deceased, and more particularly the appellants in this case.

In Thomas v. Bonnie, 66 Tex. 635, 2 S.W. 724 (1886) the Supreme Court in discussing the liability of an heir who had received only a part of the estate said:

. a distributee would not “be liable beyond his just proportion, according to the estate he may have received in the distribution.”

To the same effect is Low v. Felton, 84 Tex. 378, 19 S.W. 693 (1892).

This principle was further articulated in Perry National Bank of Hamilton v. Norwood, 22 S.W.2d 1100 (Tex.Civ.App.— Waco 1930, writ dism’d) where court said:

Appellant, however, is not entitled to recover from each of the distributees the full amount of its debt, but is only entitled to recover from each of them the proportionate amount of its debt in proportion to the property received by each of them, respectively.

These last three cited cases hold in effect that the creditor is not entitled to recover from each of the distributees the full amount of its debt, that each distributee is liable only for a proportional share of the creditor’s debt, and that the extent of the liability of each distributee is limited to the property received by each such distributee.

To the same effect is Chadwick v. Watkins, 258 S.W.2d 194 (Tex.Civ.App.—Texarkana 1953, no writ) where the creditors sought a judgment decreeing joint liability for the aggregate amount of the debt. There had been no administration of the estate in the probate court and the decedent had died intestate. The court stated:

“A joint judgment cannot be rendered in the aggregate against all the distributees shown to have received assets of the estate, but the judgment must be against each to the extent of the assets actually received.” Simpkins “Administration of Estates in Texas,” Third Ed., p. 313, citing cases; Low v. Felton, 84 Tex. 378, 19 S.W. 693.

However, the court further stated:

As already shown, if the property or any part of it has been disposed of by an heir, then personal judgment may be rendered against him to the extent of the value of that which he has disposed of. (Emphasis added.)

Thus, the liability of each distributee is limited to the extent of the “assets actually received” and retained by each distributee from the estate of the decedent, or if, as in the case before us, the distributees have disposed of such assets or property, each distributee is personally liable to the “extent of the value of that which he has disposed of.” To the same effect is McFarland v. Shaw, supra, Smith v. Patton, supra, and Faulkner v. Reed, supra. And likewise, in all of these cases, the creditor’s recovery is limited to the established amount of his debt.

Also, the court in Chadwick v. Watkins, supra, further determined that the creditor must prove the specific interest each heir received in the distribution of the assets of the estate and that the court will not presume such distribution was made to each distributee in the proportions indicated by the law of descent and distribution. Even, if we could so presume, then the appellees have failed to prove the necessary facts of heirship to establish the interest of each heir under the law of descent and distribution.

Appellees proceeded to trial on its Second Amended Petition. Attached to this petition is a document purporting to be an Affidavit of Heirship; however, this document or the facts stated herein were neither admitted into evidence nor stipulated by the parties. Appellees’ Request for Admission Number 21 and Appellants’ Answer only tells us that Exhibit B to Appel-lees’ First Amended Petition is a true copy of an instrument filed in the Deed Records of Cottle County, Texas, and likewise, neither of these last mentioned documents were proven nor admitted into evidence in this cause and the same are not otherwise properly before us.

Also, Appellees’ Request for Admission Number 22 and Appellants’ Answer thereto fail to furnish the necessary facts of heir-ship. This request for admission merely lists the names of eleven heirs at law of Maude A. Garrison, deceased. Neither the relationship of the heirs to the decedent nor the relationship of the heirs to each other is shown.

The testimony of H. L. Garrison and Hattie Garrison Roark further adds to the confusion. Mrs. Roark said there were “twelve” children, but that “six sisters are living, I just have one brother.” H. L. Garrison said there were “ten heirs” and that there was “one niece and one nephew.” This testimony fails to establish the necessary facts of heirship. We may not go outside the proven record and guess on this important matter.

Therefore, we must conclude that the ap-pellees have failed to establish the specific interest each heir owned in the property disposed of to the bona fide purchaser.

The appellees contend that they have met their burden of proof to sustain the judgment entered by the court against each of the appellants in the specific amounts set forth therein and enumerated above by showing the following:

(1) That there were eleven named heirs of the decedent;

(2) That such heirs were either sons, daughters, or grandchildren of the decedent;

(3) That H. L. Garrison, one of the heirs, testified that there were “ten heirs” of the estate;

(4) That H. L. Garrison received approximately $2,378 from the proceeds of the sale as his share of the estate;

(5) That Hattie Garrison Roark testified that her portion of the estate was equal to cover her part of the bill at the hospital;

(6) That the fair market value of the real property was $44,600;

(7) That the appellants James Wiley Garrison and Shirley Garrison Hargraves, each, were entitled to receive $2,200 from the proceeds of the sale as their share of the estate;

(8)That the appellants Lillian Garrison Potts, Hattie Garrison Roark, Mat Easter Garrison Williams, Vena Garrison Carr, Roger Garrison and Virginia Mae Garrison, Independent Executrix of the Estate of Barney Garrison, Sr., each, were entitled to receive from the proceeds of the sale of the property the sum of $4,400 as their respective shares of the estate.

From this evidence we are asked to presume that each appellant actually received from the estate of Maude A. Garrison, deceased, and the proceeds of the sale of the real property to the bona fide purchaser, an amount of money equal to or greater than the judgment amount entered against each of the appellants, respectively, or presume that each appellants’ share of the market value of property disposed of was greater than the judgment amount entered against each of the appellants respectively. We can do neither, from the record or the applicable law in this case.

We can make the following comments as to each item of appellees’ contentions. On item one, the evidence in record does not show the relationship of the heir at law to the decedent or to each other. On item two, the evidence shows there were brothers, sisters, nephew and niece; however, the evidence fails to establish which of the heirs belong to a particular class. Item three is opinion testimony without factual basis. There are eleven heirs at law of Maude A. Garrison. We are not shown the actual interest of each of the eleven shares or what amount, if any, of the estate each heir received in the distribution of the estate.

As to item four, we do not know whether H. L. Garrison received more or less than the other heirs or the method used in arriving at this amount or the reason for his receiving such amount. On item five, in reference to Mrs. Roark’s testimony, we are not shown what “your part of the bill at the hospital” has reference to or the amount of the bill at the hospital at any given time. Item six is the stipulated fair market value of the property; however, the evidence does not show the amount of the debts of the decedent which would reduce the figure to the value received by each heir from the sale of the property. As to items seven and eight, the evidence does not show any of the appellants’ interest in the property of the estate or the amount of debts of the estate attributable to such figures.

Appellees contend in part that the extent of appellants’ individual liability is measured by the full or market value of the real property disposed of notwithstanding any other debts of the estate of Maude A. Garrison, deceased. We do not agree. Our Supreme Court determined in Blinn v. McDonald, supra, that the property of the decedent vest in all the heirs, devisees, legatees or distributees of the estate subject to all of the debts of the decedent. In Jackson v. Hubert, 149 Tex. 451, 234 S.W.2d 414 (1950), the Supreme Court explained that the so called lien created under § 37, supra, is a general lien in favor of all of the creditors against all of the non-exempt assets of the estate. In Blinn v. McDonald, supra, and McFarland v. Shaw, supra, and other authorities cited therein, the remedy of personal liability against the heirs, devi-sees, legatees or distributees for disposing of the property of the estate is invoked by operation of law in lieu of the defeated remedy of foreclosure of the lien against property in the hands of the heirs, devisees, legatees or distributees.

Again, from Chadwick v. Watkins, supra, the liability of each distributee is limited to the extent of the “assets actually received” and retained by each distributee from the estate of the decedent or, if as in the case before us, the distributees have disposed of such assets or property, then each distribu-tee is personally liable to the “extent of the value of that which he has disposed of.”

In City of Forth Worth v. Banner, 328 S.W.2d 239 (Tex.Civ.App. — Fort Worth 1959, writ.ref’d n.r.e.) the city sought a personal judgment agamst the sole distribu-tee of the estate for its debt against the estate of the decedent. The court stated as follows:

We have concluded that the city was burdened with the duty, prerequisite to any right to compel the entry of a judgment in its favor, to establish not only the existence of the indebtedness of those from whom Mrs. Banner received her estate, but additionally to establish the value of the same as so received to at least the extent of any amount which it would be entitled to have decreed to it in the judgment. This additional burden the city failed to discharge, hence the take nothing judgment decreed by the court below should not be disturbed by an appellate court.

Therefore, we conclude that the appellees have the burden to show that the amount each appellant received from the sale of the property, exclusive of any other debts of the decedent, was equal to or greater than the judgment amount entered against each such appellant.

In the case before us, the real property disposed of was the only asset of any value in the estate of Maude A. Garrison, deceased. The testimony of H. L. Garrison shows that the real property was subject to a federal land bank loan which was taken into account in the distribution to him, even though the evidence fails to establish whether or not such loan was a debt of the estate of Maude A. Garrison or the amount of the same. And, likewise, H. L. Garrison testified that funeral expenses and other expenses were deducted from the proceeds of the sale before distribution to him or the other heirs. However, the testimony does not reveal the amount of any of these debts or the amount any other heir, and more particular the amount, if any, the appellants received in this distribution of the estate.

Appellants’ third, fourth and fifth points of error are sustained and the cause is reversed and remanded for a new trial.

Appellants in their second point of error complain “that there is insufficient evidence to support a finding that the [appellants] owed or agreed to pay [appellees] anything for the care and support of Maude A. Garrison.” Under § 37, supra, Blinn v. McDonald, supra, and McFarland v. Shaw, supra, the personal liability, if any, of the appellants for the claim of the appellees is predicated on the action of the appellants in disposing of the property of the estate of Maude A. Garrison, deceased, at a time when the appellees’ debt was outstanding. The remedy of personal liability is invoked in lieu of the destroyed remedy of foreclosure of the so called statutory lien on the property of decedents in the hands of the appellants.

Appellants second point is overruled.

Appellants in their sixth point of error complain that the trial court erred in rendering judgment against the defendants, for the reason that the alleged claim asserted was barred by the statute of limitations. The essence of the appellants’ contention is that a part or all of the claim is barred by the two year statute of limitations. Under this point of error the appellants request that the judgment be reversed and rendered. We overrule appellants’ sixth point of error. The jury’s answer to Special Issue Number One establishes that the claim was not due until the death of Maude A. Garrison, deceased. This issue or its answer stands unchallenged in this Court.

However, we have reversed and remanded the cause for a new trial on other grounds. Hence, the evidence issue submitted and answers of the jury could be different on another trial; therefore, we discuss the application of the statute of limitations to the action.

The appellees contend that the four year statute in the Tex. Bus. & Comm. Code § 2.725 applies because the transaction involved was a “sale of goods” under Tex. Bus. & Comm. Code, ch. 2 (Tex. UCC 1968). We must determine whether the transaction was a sale of goods, covered by the code, or a sale of services. If, as appellants contend, this was not a sale of goods, appel-lees do not have the benefit of the Code’s four year statute of limitation. Instead, their cause is governed by the two year statute, V.A.C.S., art. 5526 as tolled by V.A. C.S. art. 5538.

The record shows that Mrs. Garrison was supplied both goods and services during her stay in the hospital, and we must decide whether the “essence” of this transaction was for goods or services. See Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 (1954). Texas follows the majority rule that the essence of a hospital stay is the furnishing of the institution’s healing services which may include incidental sales of medicines and the like. Goelz v. Wadley Research Institute & Blood Bank, 350 S.W.2d 573 (Tex.Civ.App. — Dallas 1961, writ ref’d n.r.e.). See Annot., 45 A.L.R.3d 1364, 1383-86 (1972). Likewise, we are of the opinion that the essence of this transaction was predominately the furnishing of hospital service as opposed to the sale of goods.

Therefore, we hold that the statute of limitations set forth in Tex. Bus. & Comm. Code § 2.725 does not apply to this case.

Further, we are of the opinion that V.A. C.S. art. 5526 and 5538 are applicable to this matter.

By this holding, we do not wish to be heard to say that we are now determining that all or any part of the alleged claim is or is not barred by the applicable statute of limitations. Since we are remanding the case for a new trial, we think a proper application of the statute of limitations should be made under evidence and issues presented at such trial.

We are of the opinion that it is unnecessary to write further on the points and counterpoints set forth in briefs of the parties, since they speak to matters that are not likely to reoccur on another trial of the cause.

Therefore, we reverse and remand this cause for a new trial.


author: PHILLIPS, Chief Justice.

text:
    The AUSTIN NATIONAL BANK OF AUSTIN, Texas, Appellant, v. CAPITAL LODGE NO. 23, I.O.O.F. OF AUSTIN, Texas, et al., Appellees.
    No. 12628.
    Court of Civil Appeals of Texas, Austin.
    Nov. 23, 1977.
    John C. Miller, Austin, for appellant.
    Hardy Hollers, William R. Travis, Hollers & Travis, Austin, for appellees.
   PHILLIPS, Chief Justice.

Appellees brought suit in the court below for a declaratory judgment to construe an option contract involving real estate that had been entered into between appellee Lodge and appellant Bank. Both parties moved for summary judgment and the court granted summary judgment for ap-pellees.

We affirm this judgment.

The property in question is located at 505 Congress Avenue in Austin and is described as the north six feet (6') of Lot No. 1 and the south twenty feet (20') of Lot No. 2, Block 56, Original City of Austin, Travis County, Texas, and will be referred to hereafter as the “Flack property.”

Appellant Bank originally leased this property on May 7, 1927, for a term of twenty-five years. The lease gave the Bank an option to extend it for an additional twenty-five years at the expiration of the original term, and after that, for an additional term of not less than ten nor more than twenty years. The Bank was granted the right to remove the existing improvements and erect such a building as suited its needs, provided only that at the expiration of the lease a building of good construction of not less than two stories and suitable for mercantile purposes would be left on the premises. It was understood that the Bank would use the premises for its banking business. If, at the expiration of the original term or the renewal terms, the building upon the premises was undivided from the building on the adjoining premises, the Bank was required to sever the joined portion of the building from the other by a partition wall. The improvements made by the Bank would become the property of the lessor at the end of the term or the renewal terms.

On November 6, 1951, the original lease was renewed and extended for a term to begin June 1, 1952 and end May 31, 1977. At that time the property was owned by appellees subject to life estates of Laura A. Bunton and Thomas W. Bunton. All of the provisions of the original lease were incorporated into the renewal lease.

On December 1,1952, the lease was again extended for a term to begin May 31, 1977 and to end at the death of the survivor of Laura A. Bunton and Thomas W. Bunton.

On January 14, 1953, appellee Lodge entered into an option contract for the sale of the Flack property to the Bank. The contract provided that upon the termination of the life estates, the Bank could exercise its option to purchase the property. The Bank sought the option because it desired to construct substantial improvements upon the property and upon an adjoining tract on which it intended to acquire a fifty-year lease. The purchase price was not established in the contract, except that it was to be not less than $115,000.00 nor more than $170,000.00. The contract provided that if, following the exercise of the option, the parties could not agree upon the purchase price, the price would be determined by arbitration. Each party was to select an arbitrator, and the arbitrators so selected would select a third if necessary. The contract acknowledged that the development planned by the Bank on the property and on the adjoining tract would result in a greater sales price of the property, exclusive of the improvements themselves. The contract specifically stated that the price to be paid would be a consideration in cash equal to, “the then value” of the property.

In 1963 the Bank built a new four-story bank building. The building covered the Flack property, the adjoining portions of Lots Nos. 1 and 2, and all of Lot No. 3, Block 56, Original City of Austin, Travis County, Texas.

Sometime after 1963, the Bank decided to expand again. The Board of Directors concluded that it was economically unsound to enlarge the building built in 1963. Subsequently, it was decided to acquire the lots to the north of Lot No. 3 in Block 56 and build the Austin National Bank Tower.

In a series of four purchases occurring in 1969 and 1970, the Bank acquired the north and south halves of Lot No. 4, part of Lot No. 5, and all of Lot 6 in Block 56. Existing buildings on these lots were ultimately razed, and the Austin National Bank Tower was built on the property.

On July 31, 1974, the life estates of the Buntons having expired, the Bank exercised its option to purchase the Flack property. The parties were unable to agree upon the price, and the arbitration process provided for in the contract was instituted. The date of the sale was established as October 18, 1974. Thereafter, the Bank and the Bank’s arbitrator took the position that the purchases by the Bank in the years 1969 and 1970 could not be considered by the arbitrators in determining the compensation to be paid to appellee Lodge. The Bank contends that the option contract contemplated the strict use of the “fair market value” standard and that under such standard, sales for “assemblage” could not be considered. The sales to the Bank in 1969 and 1970 were a series of purchases to assemble a single tract for the site of the Austin National Bank Tower.

Because of the Bank’s construction of the contract, the arbitrators were unable to agree. The third arbitrator specifically requested that the parties agree upon the standard of value to be used by the arbitrators or submit the question to the proper court.

As we stated above, appellee Lodge brought suit for declaratory judgment seeking construction of the option contract. Both sides moved for summary judgment, then the trial court granted judgment for appellee Lodge. The judgment specifically instructed the arbitrators to consider the purchases by the Bank of the adjoining property in the years 1969 and 1970 in determining the compensation to be paid appellee. The judgment further instructed the arbitrators to consider those sales along with other relevant evidence of probative value that would be considered by ordinary prudent and knowledgeable businessmen in the sale of the Flack property to the Bank.

Appellant Bank is before this Court on two points of error; namely, the error of the court in not rendering a judgment containing a statement of the standard of value to be applied by the arbitrators and the error of the trial court in not finding that fair market value is the valuation standard to be applied.

The Bank apparently contends that the option contract contemplates the standard of valuation to be fair market value, and that if such a standard is used, the purchase price of the lots' acquired immediately to the north of the subject property cannot be considered, and further, that in determining market value “assemblage sales” cannot be considered.

The law of this State contemplates that a written instrument, not assailed as being ambiguous, must be interpreted to carry out the intentions of the parties. The instrument must be considered as a whole and given its reasonable and probable meaning. City of Pinehurst v. Spooner Addition Water Company, 432 S.W.2d 515 (Tex.1968).

In the case at bar, the Bank was given an option to purchase the Flack premises for a consideration equal to the then value of the Flack premises. The consideration to be paid by the Bank to the Lodge for such property was to be not less than $115,000.00 and not more than $170,000.00, and the tract of land was to be appraised exclusive of any improvements that the Bank had caused to be placed on the property. The date of valuation agreed upon by the parties was October 18, 1974.

The word “value” means market value when used without qualification. Both terms are used interchangeably and both are synonymous with actual value and salable value. Bryant v. Stohn, 260 S.W.2d 77 (Tex.Civ.App. Dallas 1953, writ ref’d n. r. e.). The word “value” implies sales value as opposed to intrinsic value or value to a particular person. Neither individual needs nor the needs of the parties should be considered. It is not speculative value or value derived from the necessitous circumstances of the buyer or seller. It is the amount that could be obtained at private sale and not at a forced sale by one who wishes to sell, but is not obligated to sell, and is bought by one who wishes to buy it, but is under no obligation. Further, use of the word “then” indicates time. It means the market value of the property at the time of valuation agreed upon by the parties. See generally City of Pinehurst v. Spooner Addition Water Company, supra.

Value or market value must, of necessity, be determined upon the basis of the uses for which the particular property is suited and the most profitable use to which it can be put. In this regard, it is usually said that the best evidences of value are recent comparable sales in the area. Therefore, in Texas, as well as in other jurisdictions, sales of land that are near in time and involve land in a similar location and are of similar character and improvements may be received in evidence in determining the value of the land in question. Nearness in time, similarity in location and character are matters left to the discretion of the trial court. See 2 McCormick & Ray, Texas Law of Evidence § 1524 (1956); Board of Regents of The University of Texas System v. Puett, 519 S.W.2d 667 (Tex.Civ.App. Austin 1975, no writ). The only limitation to allowing evidence of sales of similar property as evidence of value is that the sale not be a forced sale.

Here, there is no evidence that the purchases of property by the Bank in 1969 and 1970 were the result of duress or so dissimilar in location and character so as to be inadmissible. On the contrary, the sales resulted from arm’s length transactions and were of property in the same location. Furthermore, the judgment is not unduly vague or imprecise in stating the method of determining valuation.

Consequently, given the wording of the contract before us, aided by the rules of construction set out above, we are of the opinion that it was the intention of the parties for the market value to be determined by taking into consideration relevant evidence of value, including comparable sales in the vicinity. Under these criteria, evidence of the sales of the lots immediately to the north and adjoining the subject property should be admitted.

The judgment of the trial court is affirmed.

Affirmed.

      . The suit was brought by authority of Article 2524-1, Vernon’s Civil Statutes.

      . The trial court found that:
      “. the parties intended that the compensation be determined as it would be in a private sale between these same parties of the particular land involved with due consideration given to all matters that would be considered by ordinarily prudent and knowledgeable businessmen in such a transaction.”
      The trial court further found:
      “. . . that the arbitrators appointed pursuant to the contract shall, in determining the compensation to be paid Plaintiffs, take into consideration the sales to The Austin National Bank which occurred in 1969 and 1970 . . . along with all other relevant evidence of probative value that would be considered by ordinarily prudent and knowledgeable businessmen in a sale of the property from Plaintiffs to Defendant.”


text:
    HOUSTON NATURAL GAS CORPORATION et al., Appellants, v. SOUTHWESTERN APPAREL, INC., et al., Appellees.
    Nos. 12632, 12636 to 12638.
    Court of Civil Appeals of Texas, Austin.
    Nov. 23, 1977.
    Rehearing Denied Dec. 14, 1977.

      Milton L. Bankston, Ruth Burney Penne-baker, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for Houston Natural Gas.
    Robert A. Wooldridge, Worsham, For-sythe & Sampels, Dallas, for Dallas Power & Light Co.
    Stan McLelland, Baker & Botts, Houston, for Houston Lighting & Power Co. and United Gas, Inc.

      Frank M. Ryburn, Jr., J. Dan Bohannan, Burford, Ryburn & Ford, Dallas, for Dallas Power & Light Co.
    Don D. Martinson, Fanning & Harper, Dallas, for appellees.
   PHILLIPS, Chief Justice.

This is an appeal from an order entered in the court below overruling the plea of privilege filed by appellants herein, seeking to have their suits removed to the counties of their residence. The suits were consolidated for trial and for purposes of this appeal.

We reverse this judgment and order the causes transferred as hereinafter indicated.

Appellees are eleven corporations seeking, individually and as representatives of- a class of those similarly situated, to recover State sales taxes allegedly collected from them upon their purchases of natural gas and/or electricity. Appellees maintain that portions of their gas and/or electricity purchases are exempt from taxation under Art. 20.04(R), Taxation-General, Vernon’s Civil Statutes (1969), because such portions are used in connection with manufacturing (as opposed to commercial or residential use). Appellees also sue for an injunction enjoining appellants, utility companies, and Comptroller of Public Accounts from the collection of such taxes in the future.

Appellees seek to maintain venue against appellants in Travis County under subdivisions 4, 29a, and 30 of Article 1995, V.C.S., and although numerous points of error have been raised by appellants in several briefs submitted, our opinion will be directed to the positions taken by the parties hereto with respect to subdivision 4, the remaining subdivisions having been abandoned on appeal.

At the outset, so that a better understanding may be had of the underlying facts of this lawsuit, we will state a summary of appellee State Comptroller’s evidence.

Utilities, like other retailers, are required to collect sales tax on all of their sales unless the utilities can prove that a sale is exempt by producing an exemption or resale certificate. Utilities, like other retailers pay such taxes to the Comptroller by filing quarterly returns, keeping a specified percentage of the taxes collected for timely filing the return. The Comptroller deposits the taxes in the State’s general fund and in the city trust fund, keeping a retainage of that portion deposited in the city trust fund in order to make any appropriate refunds. The Comptroller has audit procedures to see that such taxes are properly collected. Upon audit, the Comptroller will charge a utility with tax unless the utility can supply a certificate. The Comptroller will honor a certificate accepted by a utility in good faith. Utilities, like other retailers make no judgment or discretionary calls in determining whether a particular sale is taxable or exempt; all that is required is for the retailer to be in good faith in accepting a certificate. Exemption certificate forms can be obtained from either the Comptroller or from retailers. However, it is not required that this particular form be used. The form is provided merely for convenience and any piece of paper is sufficient when it is signed' by the consumer and states the reason for the exemption. This form is an exceedingly simple one requiring the filling in of only one line.

It is the Comptroller’s position that one must claim his exemption by following this simple procedure in order to avoid taxation. If a taxpayer pays tax without submitting an exemption certificate but later shows the sale to be exempt, refunds are available.

The Comptroller expects sales tax to be collected in the absence of such a certificate. It would be extremely difficult, if not impossible, to administer the sales tax law without the use of such certificates.

I

Article 1995, subdivision 4, provides in part:

“4. Defendants in different counties. —If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. . . . ”

Under the holding of Stockyard National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936), including the many cases following the Court’s decision on this point, a plaintiff in order to maintain venue under subdivision 4, must: (1) allege and prove by the preponderance of the evidence that at least one of the defendants resides in the county of suit; (2) allege and prove by a preponderance of the evidence each and every element of a bona fide cause of action against the resident defendant; and (3) show by his pleadings that the nonresident defendant is properly joined in the suit against the resident defendant.

A nonresident defendant’s plea of privilege must be sustained if the plaintiff fails to establish any one of these venue facts. In our judgment appellees have failed to prove a cause of action against the Comptroller in Travis County. Consequently, the plea of privilege of each of the appellants should have been sustained.

Appellees’ alleged cause of action can, primarily, be divided into two parts: first, the recovery from the Comptroller of certain taxes illegally paid and, second, the illegality of the manner in which the Comptroller attempts to collect the taxes.

With respect to recovery of taxes allegedly illegally collected by the Comptroller, we are confronted at the outset with Article 20.10, V.C.S., which outlines the procedure which a complaining taxpayer must follow in proving his right to recovery of taxes illegally collected before he has a cause of action which can be judicially determined. Article 20.10(G) provides that: “No suit or proceeding shall be maintained in any court for the recovery of any amount alleged to have been erroneously or illegally determined or collected unless a claim for refund or credit has been duly filed.” Then within ninety days after his claim has been filed with the Comptroller “ . . . the claimant may bring an action against the Comptroller on the grounds set forth in the claim in a court of competent jurisdiction in Travis County, Texas, for recovery of the whole or any part of the amount with respect to which the claim has been disallowed.” (Art. 20.10(H)(1)).

Appellees have neither pleaded nor proved that each of them has filed claims for refund. Obviously, it follows that the Comptroller has not disallowed any claims as yet. See this Court’s opinions in Dub Shaw Ford, Inc. v. Comptroller of Public Accounts, 479 S.W.2d 403 (Tex.Civ.App. 1972, no writ); Texas Air Control Board v. Travis County, 502 S.W.2d 213 (Tex.Civ. App.1973, no writ). Consequently, appel-lees were premature in bringing suit on their claim for refund.

In Texas Air Control Board, this Court stated the exceptions to the principle of exhaustion of administrative remedies are where the administrative remedies themselves are inadequate; or where the agency’s action is unconstitutional, beyond its jurisdiction, or clearly illegal.

This brings us to the second part of ap-pellees’ cause of action, that is, the contention that the Comptroller’s manner of collecting the taxes was illegal or ultra vires.

II

Appellees contend that they and their class are purchasers of gas and electricity for purposes other than commercial or residential use and that those purchases of gas and electricity are thereby exempt from taxation pursuant to Article 20.04(R), Taxation-General, V.C.S.

Appellees further contend that the Comptroller, under the statutory duty of collecting the sales excise tax on gas, has promulgated Regulations 95-0.07 and 95-0.12 which are illegal and/or ultra vires.

Comptroller’s Regulation 95-0.07 places an affirmative duty on anyone claiming an exemption from the sales excise tax to make a written request for an exemption therefrom to the Comptroller by furnishing an exemption certificate to appellants and members of their class as a condition precedent to a taxpayer avoiding taxes under Art. 20.04(R).

Regulation 95-0.12, or the “predominant use theory,” is a rule applied by the Comptroller to all meter readings where there is both an exempt and nonexempt use of the utility measured by the meter reading. That is to say, the total reading shall either be exempt or nonexempt depending upon the predominant use of the utility service so furnished. This method may be used only where there is no practical way to determine what part of the gas or electricity is used in a taxable manner.

Appellees argue that there is nothing in Article 20.04(R) that expressly or impliedly gives the Comptroller the authority to impose burdens, conditions and restrictions in excess of or inconsistent with statutory provisions. We cannot agree with this contention.

Article 20.11, Taxation-General, V.C.S., specifically authorizes the Comptroller to promulgate rules and regulations relating to the administration and enforcement of the Limited Sales, Excise and Use Tax Act. In Gerst v. Oak Cliff Savings and Loan Association, 432 S.W.2d 702 (Tex. 1968), the Supreme Court stated that the determining factor in deciding the question of whether or not a particular administrative agency has exceeded its rule-making powers is that the rule’s provisions must be in harmony with the general objectives of the act involved. Also see this Court’s opinion in Jefco, Inc. v. Lewis, 520 S.W.2d 915 (Tex.Civ.App.1975, writ ref’d n.r.e.). The uncontroverted evidence in this record is that the administration and enforcement of the act in question would be extremely difficult, if not impossible, without the use of exemption certificates. No specific form of exemption certificate is required and the execution of a satisfactory certificate requires only a minimum of effort by those claiming the exemption. It takes little reflection to imagine the unnecessary and unreasonable complexity of any other alternative. The testimony also discloses that if a consumer pays a tax and later claims his exemption, a refund will be forthcoming.

We also find that the Comptroller’s Ruling 95-0.12 pertaining to the “predominant use theory” is in harmony with the general objectives of the Act, that the testimony reveals that it has been found to be workable through many years of application and is used only where there is no practical way to determine what part of the gas or. electricity is used in a taxable manner.

The judgment of the trial court is reversed and the cause is remanded with instructions to transfer the suits against appellants to the counties of their residence.

      . In this connection appellees cite: Kelly v. Industrial Accident Board, 358 S.W.2d 874 (Tex.Civ.App. 1962, writ ref’d); Gulf Coast Water Co. v. Cartwright, 160 S.W.2d 269 (Tex. Civ.App. 1942, writ ref’d w.o.m.); Railroad Commission v. Fort Worth & D.C. Ry. Co., 161 S.W.2d 560 (Tex.Civ.App.1942, writ refd w.o. m.); State v. Jackson, 370 S.W.2d 797 (Tex.Civ. App.1963), aff’d, 376 S.W.2d 341.


author: MURRAY, Justice.

text:
    Leonel R. LOPEZ, Appellant, v. Mario E. RAMIREZ, Starr County Judge, et al., Appellees.
    No. 15962.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 23, 1977.

      Roger H. Reed, Rio Grande City, for appellant.
    Charles L. Franz, Jr., San Antonio, for intervenor.
    John L. Hill, Atty. Gen., David M. Kendall, Asst. Atty. Gen., Austin, filed briefs amicus curiae.

      F. R. Nye, Jr., Alex W. Gabert, Glenn H. Ramey, Rio Grande City, for appellees.
   MURRAY, Justice.

This is a taxpayer’s suit to enjoin the Starr County Commissioners Court from issuing $1,500,000.00 in certificates of obligation under the authority of Art. 2368a.l, Tex.Rev.Civ.Stat.Ann. (Supp.1977), which the legislature named the Certificate of Obligation Act of 1971. Suit was initiated by Leonel R. Lopez, appellant, by filing his original petition in the 229th District Court in Starr County, Texas. Cesar Leal, appellant, intervened in said suit for himself, as an ad valorem taxpayer of Starr County, and for a class of persons pursuant to Rules 42 and 60, Tex.R.Civ.P., and makes virtually the same allegations as appellant, Lopez, except that in addition to an injunction, he prays for damages.

Following a trial before the court on July 12, 1977, the court entered judgment denying the injunction as prayed for by appellants and ordered that appellants take nothing by their suit. Appellants’ position is that the certificates of obligation may never be used to pay regular salaried county employees, and in the alternative such authorization extends only to regular salaried employees engaged in the construction of a public works project. It is undisputed that the main purpose for which these certificates of obligation are intended is to pay regular salaried Starr County employees not engaged in public works projects. Before this suit was filed, Starr County had in fact paid more than $39,000.00 with such certificates to regularly salaried Starr County employees not engaged in public works and Starr County intends to use said obligations in the future for said purpose.

The pertinent parts of Art. 2368a.l, Tex. Rev.Civ.Stat.Ann., hereinafter called the Act of 1971, are as follows:

Sec. 3. (a) The governing body of an issuer may authorize certificates for the purpose of paying any contractual obligation to be incurred for the construction of any public work or for the purchase of materials, supplies, equipment, machinery, the purchase of land and rights-of-way for authorized needs and purposes, or for the payment of contractual obligations for professional services (including tax appraisal engineers, engineering, architectural, attorneys, mapping, auditing, financial advisors, fiscal agent) or for any one or more of such purposes.
Sec. 6. (a) Except as provided herein, the governing body of an issuer shall hereafter make no contract calling for or requiring the expenditure or payment or creating or imposing an obligation or liability of any nature upon such city, county, or subdivision of the county in excess of $2,000 without first submitting such proposed contract to competitive bids.
Sec. 7. The provisions of Section 6 of this Act relating to advertisement for competitive bids shall not apply in the following instances:
(1) in case of a public calamity where it' becomes necessary to act at once to relieve the necessity of the citizens or to preserve the property of such city or county; or
(3) in the case of unforeseen damage to public property, machinery or equipment; or
(4) contracts for personal or professional services; or
(5) work done by employees of the issuer and paid for as such work progresses; or
(6) the purchase of land, buildings, existing utility systems or rights-of-way for authorized needs and purposes; . ’ .

Appellant’s position before this court is that only Sec. 3(a) of the Act of 1971 states the purposes for which certificates of obligation may be issued. It is the position of the appellees before this Court that in addition to Sec. 3(a), Sec. 7(5) states additional purposes for which certificates of obligation may be issued. We have been unable to locate any appellate decision construing this Act and must therefore conclude that this is a case of first impression.

The issue before this Court is one of statutory construction. The purpose in construing any statute is to ascertain from the language used in the statute the intention of the legislature, and a statute must be given the interpretation which most nearly accomplishes the legislature’s intention from the words of the statute, looking to all of its terms. Barber v. Giles, 146 Tex. 401, 208 S.W.2d 553 (1948); White v. McGill, 131 Tex. 231, 114 S.W.2d 860 (1938). A statute should be given a fair and sensible construction in order to carry out the purpose for which it was enacted and should not be construed in such a manner as to nullify or defeat its purpose. And if a statute being construed is plain and unambiguous, there is no need to resort to rules of construction, and it would be inappropriate to do so. Ex parte Roloff, 510 S.W.2d 913 (Tex.1974); Brazos River Conservation and Reclamation Dist. v. Costello, 135 Tex. 307, 143 S.W.2d 577 (1940); Annot., 130 A.L.R. 1220 (1941).

We hold that under the Act of 1971 certificates of obligation may not be used to pay regular salaried county employees unless such employees are engaged in the construction or repair of a public works project. In construing a law of doubtful meaning or application we look to rules of statutory construction in order to determine the legislative intent, but where the language of the statute is unambiguous, we look to the statute itself. Secs. 6 and 7 of the Act deal with the procedure to be followed if the Commissioners Court would issue the certificates of obligation, but the Commissioners Court has complete instructions in Sec. 3(a) as to the purposes for which said certificates may be issued. Statutes respecting the power of local governments to create a debt must be strictly and narrowly construed. Robertson v. Breed-love, 61 Tex. 316, 4 S.W. 209 (1884). A more recent statement of this same principle is found in the decision of the Supreme Court of Texas in San Antonio Union Junior College Dist. v. Daniel, 146 Tex. 241, 206 S.W.2d 995 (1947), at page 999:

[I]t was said in Lasater v. Lopez, 110 Tex. 179, 217 S.W. 373, 376, that, ‘without special authority,’ a commissioners’ court ‘is without the power to issue negotiable securities, depriving the county of true defenses against the original creditor. It is not a power to be implied. It does not exist unless expressly conferred by law. Such is the established doctrine in this State, and has been from an early time.’ Again, it was stated in Keel v. Pulte, Tex.Com.App., 10 S.W.2d 694, 697, ‘The power to issue negotiable paper for public improvements, or for money borrowed for the purpose of acquiring such improvements, is a power which is regarded as being beyond the scope of power of the governing body of a city or a county unless it be specially granted. This extraordinary power, when granted, can be exercised only in the mode and for the purposes specified in the grant. Foster v. City of Waco, 113 Tex. 352, 354, 255 S.W. 1104.’

We assume that if the legislature, in passing the Act of 1971, intended that the county could issue the certificates of obligation for any purpose, it would have said so, and by expressing its intention in Sec. 3(a) it intended to limit the purposes for which certificates of obligation could be issued.

If an emergency clause sheds light on the inquiry as to the legislative intent, it is properly considered. Grayburg Oil Co. v. Giles, 143 Tex. 497, 186 S.W.2d 680 (1945). The emergency clause of the Certificate of Obligation Act of 1971 reads in pertinent part as follows:

The fact this Act provides alternate procedures for financing by issuers which are needed for the orderly financing of capital improvements constitute . an emergency . . . Texas Laws 1971, Chap. 923, Sec. 12 at 2828.

We hold that Sec. 3(a) of the Act of 1971 states the purposes for which certificates of obligation may be issued and that Sec. 7 is purely a procedural section. Therefore, certificates of obligation may not be used to pay regular salaried county employees, unless such employees are engaged in the construction or repair of a public works project. It would be improper in construing the Act of 1971 to take a few words out of context, such as Sec. 7(5), and with them thus isolated, attempt to determine their meaning. With Sec. 7(5) read in context with the entire Act, it is evident that the legislature intended that the Certificate of Obligation Act of 1971 pertains only to public works and to hold otherwise would virtually destroy the meaning of the entire context.

Appellant Leal has assigned as error the action of the trial court in denying all damages to Starr County for money actually expended. Appellant Leal, in his brief, cites one case, Terrell v. Middleton, 187 S.W. 367 (Tex.Civ.App. — San Antonio 1916), writ ref’d n.r.e. per curiam, 108 Tex. 14, 191 S.W. 1138 (1917), for the proposition that a citizen and taxpayer may institute and maintain an action to restrain state officers from illegal spending of tax funds. While it is true that a citizen and taxpayer may bring a suit for injunction it is equally clear that a taxpayer may not maintain an action for damages against a public officer unless the plaintiff shows damages different from those suffered by the public at large. Sherman v. Cage, 279 S.W. 508 (Tex. Civ.App. — Galveston 1925). Appellant Leal, not alleging damage to himself other than the damage common to all citizens and taxpayers of Starr County, has no right to bring this suit for damages.

Prom our conclusion upon the material questions presented by the record, it follows that the judgment of the trial court denying the injunction will be reversed and judgment here rendered restraining the Commissioners Court of Starr County from issuing certificates of obligation to pay regular salaried county employees unless such employees are engaged in the construction or repair of a public works project.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Thelma YOUNGHAUS et al., Appellants, v. Marguerite LAKEY et al., Respondents.
    No. 28461.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 29, 1977.
    Application to Transfer Denied Oct. 11, 1977.
    Robert F. Pyatt, Chillicothe, for appellants.
    Don Chapman, Jr., Robert E. Cowherd, Chapman & Chapman, Chillicothe, for respondents.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from summary judgment of dismissal of plaintiffs’ action for determination and declaration under Section 527.040, RSMo 1969, that they are the heirs at law of Dave Yolk, deceased, and entitled to succeed to his property. The dispositive question is whether the circuit court properly determined it was without jurisdiction for the reason that the Probate Court of Livingston County had assumed and exercised full jurisdiction over the issue of heir-ship and its collateral incidents. Affirmed.

Dave Volk died intestate January 23, 1971, a resident of Livingston County. Letters of administration were granted January 28, 1971, to Marguerite Lakey by the Probate Court of Livingston County. Statutory notice of such letters was first published February 4, 1971. This declaratory judgment suit was filed in the circuit court May 14, 1971. No notice of claim under Section 473.360, RSMo., was filed in the probate court within six months after the first published notice of letters. A finding and decree of heirship, succession, and distribution recognizing Marguerite Lakey as the adopted sister of decedent and entitled to his property was made May 12, 1972. The estate was closed and Marguerite La-key, administratrix, was discharged June 28, 1972. No appeal was taken from the orders of the probate court as provided by Section 472.160, RSMo.

Plaintiffs’ petition for declaratory judgment alleged, among other things, that they were cousins of Dave Volk, deceased, and denied that Marguerite Lakey was the only heir at law of Dave Volk, deceased, as his adopted sister, as stated in her application for letters of administration. They prayed for a declaratory judgment that they are the heirs at law of Dave Volk, deceased, and entitled to his property.

Defendant Marguerite Lakey moved for summary judgment of dismissal of plaintiffs’ action on the ground, among others, that there was no issue to be resolved in the cause for the reason the probate court had fully and finally determined all issues raised by plaintiffs’ action. Her motion was sustained and judgment against plaintiffs was entered accordingly September 11, 1975.

Appellants argue that their circuit court action should not have been dismissed because the heirship of Dave Volk, deceased, was a material issue of fact; and that the question was live because the probate court did not have exclusive jurisdiction of the question.

The question in this case is governed by the rule that when a court of competent jurisdiction becomes possessed of a cause, its authority continues, subject only to the authority of a superior court, until the matter is finally and completely resolved; and no court of concurrent jurisdiction may interfere with its action. State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487 (1907); Stark v. Moffit, 352 S.W.2d 165, 167[1] (Mo.App.1961); Nicholls v. Lowther, 491 S.W.2d 3, 5[3] (Mo.App.1973). The test for application of the rule is whether there is a prior action between the same parties involving the same subject matter; and whether the court in which the prior suit is pending has jurisdiction to render the particular relief sought in the subsequent action. Where the prior jurisdiction has terminated or is inadequate to afford the necessary relief, the assumption of jurisdiction by another court is permissible. In re Gaebler’s Estate, 248 S.W.2d 12, 15 (Mo.App.1952).

In this case the prior action was the administration of the estate of Dave Volk, deceased, in the Probate Court of Livingston County. It was commenced upon the application for letters of administration of Marguerite Lakey, in which she alleged she was the sole heir at law of decedent. There is no question that statutory notice of the pendency of the administration was given, and plaintiffs’ pleadings demonstrate they had actual knowledge of the proceedings and the claim of Marguerite Lakey that she was the sole heir of decedent. One of the necessary incidents of the probate proceeding was the determination that Marguerite Lakey was the sole heir of decedent as his adopted sister and entitled to distribution of his estate, the same issues as those sought to be litigated in the subsequent proceeding in the circuit court.

The probate court had jurisdiction in the prior proceeding to render the determination of heirship sought in the subsequent action. “The probate court has jurisdiction over all matters pertaining to probate business * * * including jurisdiction of * * * the determination of heirship * * Section 472.020, RSMo 1969; and “in its decree of final distribution, * * * shall designate the persons to whom distri-button is to be made * * * [which] distribution is a conclusive determination of the persons who are the successors in interest to the estate of the decedent * * * subject only to the right of appeal and the right to reopen the decree * * Section 473.617, RSMo 1969. Such determination in this case was not subjected to appeal or reopening.

The probate court, in the exercise of its statutory jurisdiction, resolved the question and, accordingly, there was nothing remaining to warrant jurisdiction in the circuit court under the Declaratory Judgment Act, Chapter 527, RSMo.

Judgment affirmed.

All concur.


author: DOWD, Judge.

text:
    Calvin T. BURKS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38450.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 5, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    Application to Transfer Denied Oct. 11, 1977.

      Robert C. Babione, Public Defender, Edward V. Ward, St. Louis, for movant-appel-lant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Charles D. Sindel, Asst. Circuit Atty., St. Louis, for respondent.
   DOWD, Judge.

Movant appeals from the trial court action denying, without evidentiary hearing, his motion for post-conviction relief pursuant to Rule 27.26, V.A.M.R.

Appellant was convicted of first degree murder, and was sentenced to life imprisonment. His conviction was affirmed on appeal. State v. Burks, 484 S.W.2d 302 (Mo.1972).

In the 27.26 proceeding, the court denied all grounds for vacating the conviction except that which requested a credit for jail time. The court found further that no evi-dentiary hearing was necessary.

Appellant contends the trial court erred in denying an evidentiary hearing. His 27.26 motion alleged that the state knowingly used perjured testimony when it allowed a material witness to testify that the prosecutor had made no “deal” with him in order to elicit favorable testimony. Appellant claims that the material witness committed perjury and that this is a factual issue which entitled him to an evidentiary hearing. We disagree. The trial court properly denied the 27.26 motion without an evidentiary hearing because the factual allegations of the motion were refuted by the trial record. Smith v. State, 513 S.W.2d 407, 411-412[6] (Mo.banc 1974); Rule 27.26(e).

The Perjury Issue

In order to vacate a judgment claimed to have been procured by perjury under Rule 27.26, it is a requirement that it be alleged and proved that the state knowingly used false testimony or knowingly failed to correct testimony which it knew to be false; and the conviction was obtained on account of the perjured testimony. Williams v. State, 536 S.W.2d 190, 193[7] (Mo.App.1976); Duncan v. State, 520 S.W.2d 123, 124[1] (Mo.App.1975); State v. Harris, 428 S.W.2d 497, 500[1], 502[11] (Mo.1968).

We do not believe perjury was committed during the trial. Appellant relies on the following testimony of the state’s witness, Ronald Gunn, elicited under cross-examination by the defense: “Q. Ronald, do you have any idea what the consideration will be for your testimony here today? A. No, I don’t. Q. None whatsoever? A. No, I don’t.” Appellant claims this was perjured testimony because earlier portions of the transcript contradict it. He refers to the following cross-examination of this witness: “Q. You expect you will get some consideration for testifying? A. Yes, I do. Q. You hope to help yourself by testifying? A. Yes, sir.” . . . “Q. You have no idea of what you hope to receive? A. I hope to receive a lesser sentence.”

The trial judge, Michael F. Godfrey, prepared Findings of Fact and Conclusions of Law and a memorandum opinion which we found very helpful. In this opinion the trial court also referred to the cross-examination of the witness wherein the witness stated that he expected some consideration from the state for testifying and that he hoped “to receive a lesser sentence.”

We believe, as the trial judge did, that this cross-examination is not necessarily contradictory. We have examined the entire testimony of witness Gunn. We are convinced that this testimony clearly shows that the “deal” between the prosecutor and the witness Gunn was vague and that Gunn expected a benefit but did not know exactly what it would be, although he did indicate that a lesser sentence was what he was hoping for. .Therefore, we believe that there was no showing that perjury was committed.

Secondly, even assuming the testimony was perjured, it is not true that without such testimony the jury would have acquitted appellant. It could not possibly affect the jury’s assessment of appellant’s guilt for them to know the precise details of any “deal” that had been made by the prosecutor and the material witness. They were informed that the witness was under indictment for murder and knew his case was pending. All that the jury needed to know about the witness in order to help it determine appellant’s guilt was whether the witness was credible. And all the jury needed to know in order to assess the witness’ credibility was that he expected some benefit from his testimony — that he was not testifying “out of the goodness of his heart” as the trial judge observed. This they were aware of because the witness testified as to his expectations of benefit. Since important information regarding the witness’ bias was presented to the jury, we do not believe the appellant was prejudiced in any way.

The judgment is affirmed.

SIMEONE, C. J., and SMITH, J., concur.


author: SMITH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Tommy THOMPSON, Defendant-Appellant.
    No. 37706.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 19, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    Application to Transfer Denied Oct. 11, 1977.

      Walter Sheata, Asst. Public Defender, James M. Smith, St. Louis, for defendant-appellant.
    John D. Ashcroft, Robert L. Presson, Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Daniel J. Murphy, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his convictions by a jury for robbery first degree and assault with intent to kill with malice. He received a punishment of imprisonment for ten years for the robbery and thirteen years for the assault to be served consecutively. We affirm.

A cab driver was robbed and shot three times by a customer. The victim positively identified defendant as the robber.

Defendant raises only one claim of error on appeal — that a gun admitted into evidence was not sufficiently shown to have been in the possession of defendant to be admissible. Weapons which furnish evidence may be admitted into evidence if they are relevant, material and have probative value. Under these tests the weapon is admissible if sufficiently identified and connected with the defendant or the crime. State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 (1944) [6, 7]; State v. Greathouse, 519 S.W.2d 299 (Mo.App.1975). Defendant concedes that the pistol was connected with the crime. It would be difficult to contend otherwise. The gun was positively identified by the victim. Additionally expert testimony established that it was the same gun that fired a bullet removed from the victim. The weapon was therefore adequately connected with the crime to be admitted into evidence. For that reason alone defendant’s contention fails.

In addition, however, the gun was found under the front passenger seat of a second cab, which seat was occupied by defendant immediately before the gun was found. Testimony from the second cab driver warranted an inference that upon being alerted that a police car was stopping the cab, defendant took something from his coat pocket and placed it under the front seat. The evidence was sufficient to establish the gun’s connection with both the crime and the defendant.

Judgment affirmed.

CLEMENS, P. J. and DOWD, J., concur.

      . The bullet was removed from the victim some months after the crime with the consent of the victim who underwent major surgery to his neck and shoulder for the sole purpose of providing the bullet as evidence.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Bruce TAYLOR, Appellant.
    No. 37594.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 26, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    Application to Transfer Denied Oct. 11, 1977.

      Robert C. Babione, Public Defender, Mary Louise Moran, Kent W. Fanning, Asst. Public Defenders, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, George Peach, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Bruce Taylor, charged under the Second Offender Act, § 556.280 RSMo 1969, with burglary, second degree, was found guilty by a jury and sentenced by the court to the custody of the Department of Corrections for a term of eight years. Appellant’s only point on this appeal is that the trial court erred in overruling his pre-trial motion to suppress evidence. We affirm.

About 4:00 o’clock in the morning of April 25, 1974, Police Officer Jerry Bradshaw noticed the glass had been broken in the front door of the National Food Store at the corner of Macklind and Southwest Streets. He then observed two persons, one of whom was appellant, in the store. Both ran toward the rear of the building. Officer Bradshaw and two other officers entered the building through the broken door, and went to the rear of the building into a storage area where they heard a pounding sound. When they entered that area appellant and his companion attempted to leave through an exterior door, but were met by two police officers waiting on the outside. Both were placed under arrest, and Officer Ronald Medlin read to appellant from a card the “Miranda warnings.” Appellant admits in his brief that “the rights on the police card comply with the guidelines” set forth in Miranda v. Arizona, 884 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Officer Medlin then asked appellant if he understood “his rights” and if he wanted to make a statement. Appellant replied that he understood his rights but that he did not wish to make a statement. Officer Medlin asked no further questions.

Appellant and his companion were then taken to the police station. About 5:30 o’clock Officers Bradshaw and Medlin and the manager of the burglarized store approached appellant. Officer Bradshaw asked appellant if he had been advised of his rights, and if he understood them, and appellant replied in the affirmative. The officer then asked appellant if he wished to make any statement in front of the store manager or the police officers, and appellant stated that he was one of those who had broken into the store.

The trial court overruled the motion to suppress the above statement of appellant. At trial the store manager was permitted to testify over objection that at the police station appellant stated, “We were the gentlemen that were in the store.” Later, Officer Medlin testified without objection that appellant stated that “they were inside the food store.”

Appellant relies on the statement in Miranda v. Arizona, supra, 86 S.Ct. at p. 1627 as follows:

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to of during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.”

The above language has been classified as an “oversimplification,” McCormick, Evidence (3 ed.), § 154, and it clearly is. It would be most unrealistic to say that once a person in custody exercised his right not to make a statement, that in no circumstance thereafter could he knowingly and understanding^ and without coercion change his mind. In this case when appellant stated he did not want to make a statement, no further question was asked him until he was at the police station. He was not repeatedly questioned nor was there any persuasion or inducement to make a statement. There is no question but that he completely understood his right to remain silent. He affirmatively stated he understood his rights, and he had been arrested previously at least twelve times and each time he had been given his “Miranda warnings.” About an hour and a half after his arrest he was asked if he then wanted to make a statement in front of the store manager or the officers, and he stated that he had broken into the store. There is nothing to indicate that if he had declined to make a statement, his wish not to do so would not have been honored.

We agree with the statement in State v. Dyke, 19 Or.App. 705, 528 P.2d 1073, 1076 (1974), that “The law does not prohibit him [an accused] from changing his mind. If he can change his mind, then the police are entitled to ask him if he has changed his mind, but * * * they cannot attempt to persuade him to do so and * * * they may not continue to question him after he claims his rights.” See also Massimo v. United States, 463 F.2d 1171, 1174 (2d Cir. 1972), cert. den., 409 U.S. 1117, 93 S.Ct. 920, 34 L.Ed.2d 700 (1973), where it was stated that “The police have the privilege of ‘asking a defendant to reconsider his refusal to answer questions,’ United States v. Collins, 462 F.2d 792 (2d Cir. 1972).” In Michigan v. Mosley, 423 U.S. 96, 102, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) the United States Supreme Court was called upon to reconcile its language in Miranda v. Arizona, supra, and it stated that the invocation of the privilege against self-incrimination was not a “per se proscription of indefinite duration,” but that “the admissibility of statements obtained after a person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Other cases in which it was held that after exercising the privilege not to make a statement, a person can change his mind include Commonwealth v. Youngblood, 453 Pa. 225, 307 A.2d 922 (1973); People v. White, 22 Ill.App.3d 180, 317 N.E. 323 (1974); People v. Pittman, 55 Ill.2d 39, 302 N.E.2d 7 (1973); State v. McDonald, 195 Neb. 625, 240 N.W.2d 8 (1976); State v. Peevy, 321 So.2d 234 (La.1975). The record clearly substantiates the findings of the trial court that the statement made by appellant at the police station was freely and voluntarily made after he had received and understood the “Miranda warnings,” and the record clearly shows that there was no hint of any force, coercion, promise of reward or offer of leniency. The trial court did not err in denying appellant’s motion to suppress appellant’s statement as evidence.

In the circumstances we shall mention one further matter. The evidence that appellant was in the burglarized store was substantial and unimpeached, and in his brief appellant admits that “He was apprehended within the National Food Store.” The other evidence of guilt was substantial to a degree that would negate any possibility of prejudice resulting from the admission of his inculpatory statement. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); People v. McKenzie, 67 Mich.App. 356, 241 N.W.2d 205 (1976); State v. Hocker, 25 Ariz.App. 93, 541 P.2d 419 (1975); Moreno v. State, 336 N.E.2d 675 (Ind.App.1975); United States v. Sigal, 500 F.2d 1118 (10th Cir. 1974); McCrary v. State, 529 S.W.2d 467 (Mo.App.1975).

The judgment is affirmed.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.