author: MOORE, Justice.

text:
    Lindsay H. WHITTEN et al., Appellants, v. ALLING & CORY COMPANY, Appellee.
    No. 844.
    Court of Civil Appeals of Texas, Tyler.
    July 17, 1975.

      Parnass & Hill, Larry S. Parnass, Irving, Dennis R. Croman, Dallas, for appellants.
    Allen, Knuths, Bracken & Short, Tedford E. Kimbell, Dallas, for appellee.
   MOORE, Justice.

Plaintiff-appellee, Ailing & Cory Company, instituted suit against appellants, Lindsay H. Whitten and Harold D. Sewell, alleging a breach of a written surety agreement in which appellants guaranteed payment of the debts of Goodway, Inc., to the extent of $50,000.00 for goods and merchandise sold to Goodway, Inc. Appellants answered with a general denial and'among other defenses set up a plea of failure of consideration. After a trial before the court sitting without a jury, the trial court rendered judgment in favor of appellee, Ailing & Cory Company, for the sum of $49,909.02 together with interest, attorney’s fees and costs. Appellants duly perfected this appeal.

We affirm.

The trial court filed extensive findings of fact and conclusions of law, finding among other things, that: (1) during the early part of 1972, Goodway, Inc., began to experience financial difficulty to the extent that by the summer of 1972, Ailing & Cory Company began supplying Goodway with its paper products only on a C.O.D. basis, (2) during this period of time, the appellants were attempting to acquire the assets of Good-way, Inc., and were interested in keeping Goodway in business until they could complete their arrangements to purchase the company, (3) during the month of October, 1972, Goodway, Inc., placed certain orders for paper with Ailing & Cory Company and was unable to pay on a certified check — C. O.D. basis, (4) Goodway was in immediate need of such paper in order to maintain its manufacturing operations and to fill certain orders which it had received, (5) at this time, Whitten and Sewell approached Ailing & Cory Company and requested that the paper be shipped to Goodway on a credit or open account basis, in return for which Whitten and Sewell agreed to unconditionally guarantee, as sureties, the due and punctual payment, in accordance with the terms of sale, of the indebtedness incurred by Goodway for goods and merchandise sold by Ailing & Cory to Goodway up to a maximum amount of $50,000.00. The appellants agreed that such guarantees could be reduced to writing and that they would execute a written agreement setting forth such guarantees, (6) in consideration of the guarantees and agreement of the appellants, Ailing & Cory Company proceeded to deliver and release certain orders already received from Goodway and to fill other orders on a credit and open account basis, (7) during the months of October and November, 1972, Ailing & Cory sold to Good-way on an open account basis goods and merchandise at an agreed price of $49,-909.02, which was delivered to and accepted by Goodway, Inc., (8) on November 22,1972, in accordance with the previous oral agreement, Sewell and Whitten signed a written suretyship agreement which read in part, “That in consideration of the sale, on credit, of goods and merchandise by ALLINg (sic) & CORY COMPANY (‘Ailing & Cory’) to GOOD WAY, INC. and its subsidiaries (‘Goodway’), the undersigned, as surety, hereby unconditionally guarantees the due and punctual payment in accordance with the terms of sale of all indebtedness, whether such indebtedness now exists or is hereafter incurred, owed by Goodway to Ailing & Cory for all goods and merchandise sold by Ailing & Cory to Goodway,” (9) it was the intention of the parties that the written instrument dated November 22, 1972, constitute their agreements and guarantees concerning the sale on credit of goods and merchandise by Ailing & Cory to Goodway, Inc., in October and November, 1972, (10) after the credit on the open account reached the sum of $49,909.02, in the middle of November, 1972, Ailing & Cory refused to extend further credit and sold Goodway nothing on credit after the written surety-ship agreement was executed on November 22, 1972, (11) Goodway, Inc., has never at any time paid for the paper sold on credit to it during the months of October and November, 1972, and was, at the institution of this suit, and still is indebted to Ailing & Cory in a sum in excess of $200,000.00, (12) in accordance with the terms of the sale, the indebtedness due for the goods and merchandise sold on credit to Goodway, Inc., by Ailing & Cory Company in October and November of 1972 in the amount of $49,909.02 was due on December 10, 1972, (13)' demand was made upon Sewell and Whitten to pay the sum of $49,909.02 to Ailing & Cory on December 21, 1972, but such sum was never paid, (14) a reasonable attorney’s fee for representing the plaintiff in the trial of this cause is $5,000.00, (15) a reasonable attorney’s fee to represent the plaintiff in this cause in an appeal to the Court of Civil Appeals is $1,000.00, (16) a reasonable attorney’s fee to represent the plaintiff in this cause in a further appeal to the Supreme Court of Texas is $1,000.00.

The foregoing findings of fact have not been challenged by any of appellants’ points of error. Such findings therefore constitute úndisputed facts and are conclusive and binding on appellants as well as this court. Curtis v. National Cash Register Co., 429 S.W.2d 909 (Tex.Civ.App., Amarillo, 1968, writ ref., n. r. e.); Curry v. E. E. Stone Lumber Co., 218 S.W.2d 293 (Tex.Civ.App., El Paso, 1948, writ ref., n. r. e.).

By their first point, appellants urge that the trial court erred in rendering judgment against them on the basis of the suretyship agreement. First, they argue that at the time of the delivery of the merchandise, the suretyship agreement was oral. Therefore, they argue that the agreement was void because in contravention of the Statute of Frauds which provides that a promise to stand good for the debts of another must be in writing. Section 26.01(b)(2), Business and Commerce Code, Vernon’s Ann.Tex. Statutes. Second, they argue that since the undisputed evidence shows that none of the merchandise was sold or delivered after the execution of the written suretyship agreement on November 22, 1972, Ailing and Cory did not extend any credit in reliance on the written agreement. Consequently, they contend the written agreement was unenforceable, as a matter of law, because not supported by consideration. We are not in accord with this proposition.

The general rule is that a suretyship contract, even though executed subsequent to the principal contract will be regarded as being made at the same time so as to constitute a part of the same transaction, and be supported by the same consideration, and not require a new consideration, where it is executed pursuant to a prior agreement and as an inducement to the execution of the principal contract, especially where the transaction was entered into at the instance or request of the surety. 72 C.J.S. Principal and Surety § 67a; 74 Am.Jur.2d Suretyship, Sec. 24; 53 Tex.Jur.2d Suretyship, Sec. 24; Kugle v. Traders State Bank of Cleburne, 252 S.W. 208 (Tex.Civ.App., San Antonio, 1923, writ dism.); Greenfield v. Anderson, 67 S.W.2d 658 (Tex.Civ.App., Galveston, 1933, n. w. h.).

Upon applying the foregoing principles of law to the undisputed facts, it becomes apparent that there is no merit to appellants’ contention that the suretyship contract was subject to the Statute of Frauds or was without consideration. The undisputed evidence shows that pursuant to the oral promise made by appellants, appel-lee relied on such promise and delivered the merchandise to Goodway, Inc. This, within itself, amounted to a benefit and a consideration flowing directly to appellants in that it kept Goodway in business while they negotiated for a purchase and sale of its assets. However, to support a contract of suretyship, it is not necessary that any consideration pass directly to the guarantor. A consideration moving to the principal alone will suffice to bind the guarantor. 53 Tex.Jur.2d Suretyship, Sec. 23; Bonner Oil Co. v. Gaines, 108 Tex. 232, 191 S.W. 552; 78 A.L.R.2d 1410. The fact that Goodway received the merchandise is undisputed. Appellants’ first point is overruled.

In their second point, appellants complain of the action of the court in overruling their objections to certain invoices offered by appellee tending to prove the sale and delivery of the merchandise prior to the date of the execution of the written agreement. Appellants objected to the invoices on the ground that was a variance between the pleading in that appellee’s suit was founded on a written contract dated November 22, 1972, whereas the proof showed that the merchandise was delivered prior thereto pursuant to the oral surety-ship agreement. The point is without merit and is overruled.

Here again appellants labor under the false assumption that the written surety-ship agreement is unenforceable because the consideration passed under the oral agreement prior to the time the written contract was executed. As pointed out above, the written contract was executed pursuant to the oral agreement and therefore is supported by the same consideration. In suits for breach of a contract, a general denial puts in issue the allegation of the plaintiff that he performed under his contract and the amount of the damages flowing therefrom. 13 Tex.Jur.2d, Contracts, Sec. 381, p. 661, Smith v. Walters, 468 S.W.2d 889 (Tex.Civ.App., Dallas, 1971, n. w. h.). Even though the merchandise was delivered pursuant to the oral agreement, the invoices were clearly admissable to show that appellee had performed its contract as well as to show the amount of the damages.

By their third and final point, appellants urge that the trial court erred in awarding attorneys’ fees to Ailing & Cory in the absence of an express provision for attorneys fees in the suretyship agreement. We do not agree.

The suretyship agreement contains the following stipulation:

“The maximum amount for which the undersigned shall be liable hereunder, at any one time shall be Fifty Thousand ($50,000) Dollars, plus all costs and expenses, (including counsel fees) incurred in attempting to collect any amounts due under the Guaranty.” (Emphasis supplied.)

The general rule in this state is that unless provided for by statute or by contract between the parties, attorneys’ fees incurred by a party to litigation are not recoverable against his adversary in a suit upon a contract. Wm. Cameron & Co. v. American Surety Co. of New York, 55 S.W.2d 1032, 1035 (Tex.Com.App., 1932); Mundy v. Knutson Construction Company, 156 Tex. 211, 294 S.W.2d 371, 373 (1956).

The written agreement, as we construe it, clearly shows that appellants not only agreed to guarantee the sum of $50,-000.00, but further obligated themselves to pay all costs and expenses including attorneys’ fees incurred by appellee in attempting to collect any amount due under the guaranty. Contrary to appellants’ contention, we do not believe there is anything in language used by the parties creating an ambiguity. The instrument clearly shows that all parties contemplated that in the event litigation resulted, appellants would be obligated to pay appellee’s attorney’s fees. Appellants’ third point is overruled.

By way of a counterpoint, appellee urged this court to invoke the provisions of Rules 435 and 438, Texas Rules of Civil Procedure, and assess a 10% penalty against appellants on the ground that the appeal is frivolous and taken for delay. Rule 435 provides that when the Court of Civil Appeals affirms the judgment, it may in its discretion assess damages not to exceed 10% in addition to the amount of the original judgment as the court may deem proper. Upon a review of the entire record, we do not believe we would be justified in concluding that the appeal was taken in bad faith and for delay only. For this reason, this court is of the opinion that the award of damages under Rule 435 is not warranted.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Archer PARR, Individually and as the County Judge of Duval County, Texas, Relator, v. O. P. CARRILLO, Individually and as the District Judge of the 229th District of the State of Texas, et al., Respondents.
    No. 15484.
    Court of Civil Appeals of Texas, San Antonio.
    July 21, 1975.
    Marvin F. Foster, Jr., Archer Parr, San Diego, for relator.
    Arthur Mitchell, Jan Woodward Fox, Austin, for respondents.
   PER CURIAM.

This is an original proceeding wherein relator, Hon. Archer Parr, seeks a writ of mandamus against Hon. O. P. Carrillo, Judge of the 229th District Court, and certain other public officials to secure certain relief in original Cause No. 8890, styled “The State of Texas on the Relation of Jose R. Nichols v. Archer Parr.” Leave to file was granted on June 27,1975, and the cause set for submission and oral argument on July 16, 1975.

Relator urged in his petition for mandamus that on or about April 30, 1975, this Court, in conditionally granting a writ of mandamus in our Cause No. 15499, ordered Judge Carrillo to proceed to try said cause on or before May 19, 1975. It was urged that despite our order, Judge Carrillo had passed the cause three times and had changed the venue three times and was threatening to delay said cause by yet another change of venue. We have now been advised that final judgment was entered in Cause No. 8890, and we must consider, at the outset, respondents’ motion to dismiss the petition for mandamus for want of jurisdiction.

Our jurisdiction to issue writs of mandamus is limited to that given in Articles 1823 and 1824, Tex.Rev.Civ.Stat.Ann. (1964). Under these statutes, the Courts of Civil Appeals may mandamus only in protection of its own jurisdiction or to compel a trial judge to proceed to trial and to judgment in a cause. Johnson v. Court of Civil Appeals, 162 Tex. 613, 350 S.W.2d 330 (1961); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); Uvalde Rock Asphalt Company v. Loughridge, 423 S.W.2d 602 (Tex.Civ.App.—San Antonio 1968, no writ); Norvell, Original Jurisdiction of the Courts of Civil Appeals to Issue Extraordinary Writs, 8 Sw.LJ. 389, 393 (1954); Green, Notes, 38 Texas L.Rev. 638, 641 (1960).

We obviously have no jurisdiction under Article 1824 inasmuch as a final judgment has now been entered in Cause No. 8890. Nor do we have jurisdiction under Article 1823. There is no allegation or showing that our appellate jurisdiction is threatened in any manner by the actions or threatened actions of Judge Carrillo or any of the other respondents.

Relator urges that our Court has power in an original proceeding to vacate or expunge void orders or to correct a gross miscarriage of justice. In this connection, respondent urges that the order of the trial court suspending or temporarily removing him from office is void for several reasons: (a) the trial court had no jurisdiction because of the failure to follow the statutory requirements in issuance of the citation to relator and further the bond of the appointed successor is defective; (b) the trial court lost jurisdiction when relator resigned as county judge after the removal petition was filed; and (c) the trial court was without authority to grant an instructed verdict of removal. We express no opinion regarding the validity of these contentions or of the numerous errors allegedly committed by Judge Carrillo during the trial.

We have been cited no case and have found none on our own research which grants the Courts of Civil Appeals jurisdiction to consider such matters. Such jurisdiction was specifically rejected in Johnson v. Court of Civil Appeals, supra, wherein the Supreme Court said: “The authority of the Court of Civil Appeals to issue writs of mandamus is limited to that given in Articles 1823 and 1824, V.A.T.S. They may only issue writs necessary to enforce their jurisdiction or to compel a district or county court to proceed to trial and judgment in a cause.” It is true that under the power vested in the Supreme Court, the writ of mandamus may be used to require the vacating or expunging of a void, as distinguished from an erroneous, order of the lower court. See Norvell and Sutton, The Original Writ of Mandamus in the Supreme Court of Texas, 2 St. Mary’s L.J. 177 et seq. (1969); Dikeman v. Snell, 490 S.W.2d 183 (Tex.1973).

The complaints urged by relator are the proper subjects of an appeal from a final judgment and all can be considered on an appeal. We recognize the hardship to relator by the harsh remedy of removal and thus the need for prompt disposition of the cause. This Court is committed to the proposition of exercising its full jurisdiction to a speedy disposition of this cause on the merits. The rules and statutes authorize expediting an appeal. However, until the appeal is perfected from the final judgment, we have no jurisdiction over same.

Subsequent to filing his petition for mandamus, respondent has tendered and requested leave to file a petition wherein he seeks to prohibit Judge Carrillo from entering or enforcing a final judgment in Cause No. 8890. Relator points out numerous errors allegedly committed by Judge Carrillo in the trial of this case. These matters are properly reviewable by appeal and we have no jurisdiction to consider same by original proceeding. We therefore decline to grant leave to file same.

The petition for mandamus is dismissed for want of jurisdiction.

      . Article 1823. “Said Courts and the judges thereof may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.”

        Article 1824. “Said Courts or any Judge thereof, in vacation, may issue the writ of Mandamus to compel a Judge of the District or County Court to proceed to trial and judgment in a cause, returnable as the nature of the case may require.”


author: CLAUDE WILLIAMS, Chief Justice.

text:
    Clyde SKEEN and Helen Skeen, Appellants, v. GLENN JUSTICE MORTGAGE COMPANY, INC., Appellee.
    No. 18649.
    Court of Civil Appeals of Texas, Dallas.
    July 22, 1975.
    Rehearing Denied Aug. 19, 1975.

      Steve Brutsche, Geary, Brice, Barron & Stahl, Dallas, for appellants.
    Larry M. Lesh, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Glenn Justice Mortgage Company, Inc., as assignee of Justice Mortgage Investors, Inc., brought this action against Flan Corporation, Clyde Skeen and Helen Skeen to recover the unpaid balance of a promissory note executed by Flan Corporation and guaranteed by Clyde and Helen Skeen. The trial court sustained the motion for summary judgment by Glenn Justice Mortgage Company, Inc. and rendered judgment against Flan Corporation and Clyde and Helen Skeen, jointly and severally, in the sum of $216,718.36, together with interest and costs. From that judgment, only Clyde and Helen Skeen appeal.

We hold that one of the necessary affidavits relied upon to support the motion for summary judgment was insufficient, as a matter of law, to comply with Texas Rules of Civil Procedure, rule 166-A(e) and, therefore, reverse the judgment and remand the cause to the trial court for further proceedings.

The material facts are undisputed. Justice Mortgage Investors, Inc. loaned Flan Corporation the sum of $600,000 to purchase real estate situated in Harris County, Texas. Flan, through its president Gene Sandell, executed a promissory note which was secured by a deed of trust. The deed of trust, in usual form, created a lien in favor of Justice Mortgage Investors, Inc. on the property in Harris County, Texas. The promissory note was payable “on demand, or if no demand is made, on May 1, 1976.” As further security for the payment of the note, Clyde and Helen Skeen executed a contract of guaranty in favor of Justice Mortgage Investors, Inc. This guaranty was made in consideration of the payment of $25,000 to Clyde Skeen. The note and deed of trust, as well as the guaranty agreement, were assigned to Glenn Justice Mortgage Company, Inc. Thereafter, the mortgaged property was sold at foreclosure sale by H. M. Kearby, trustee, to Glenn Justice Mortgage Company, Inc. for the stated consideration of $450,000. This action was brought to recover the deficiency owed on the note after crediting the amount received at the foreclosure sale. After Glenn Justice Mortgage Company, Inc. filed its motion for summary judgment, supported by affidavits, the Skeens filed their answer to such motion, supported by affidavits. Following a hearing the trial court sustained the motion and rendered judgment.

In their primary point of error, appellants contend that the trial court erred in granting summary judgment because the principal and supplementary affidavits by the trustee, relied upon by appellee in support of the summary judgment, fail to comply with rule 166-A(e) in that they contain conclusions of law rather than-statements of fact which would be admissible in evidence upon the trial of the case. In particular, they object to the following statement in the supplementary affidavit of H. M. Kearby, trustee:

Upon the default of Flan Corporation, Inc. in the payment of the Note, the entire unpaid balance of principal and accrued interest was declared immediately due and payable; and upon the failure and refusal of Flan Corporation, Inc. to pay the Note according to the terms and conditions thereof, I was, as trustee, requested by the owner and holder of the Note to sell the Property at public auction.

Substantially the same statement is contained in Kearby⅛ original affidavit. No other summary-judgment evidence of default appears in this record.

Tex.R.Civ.P. 166-A(e) expressly provides that “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

It is settled law that mere conclusions of law are not competent evidence and cannot support a summary judgment. Thé moving party must allege facts which would necessarily establish the presence of all elements of the causes of action. Through these factual allegations, the party opposing the motion is put on notice of the facts he must contradict in order to defeat the motion. Affidavits in support of a motion for summary judgment must be worded so that if the testimony were given from the witness stand during the trial it would be admissible. Hidalgo v. Surety Savings and Loan Ass’n, 487 S.W.2d 702, 703 (Tex.1972); Crain v. Davis, 417 S.W.2d 53, 55 (Tex.1967); Box v. Bates, 162 Tex. 184, 346 S.W.2d 317, 319 (1961); Fagin v. North Dallas Moving & Storage Co., 503 S.W.2d 308, 313 (Tex.Civ.App.—Waco 1973, no writ); Habern v. Commonwealth National Bank, 479 S.W.2d 99 (Tex.Civ.App.—Dallas 1972, no writ); Hutchinson v. City of Dallas, 290 S.W.2d 253, 257 (Tex.Civ.App.—Dallas 1956, no writ). The question is, therefore, whether the trustee’s unsupported statement that “upon the default of Flan Corporation, Inc. in the payment of the Note, the entire unpaid balance of principal and accrued interest was declared immediately due and payable” was proper evidence to support the rendition of a summary judgment against appellants. We have concluded that the bare statement of “default ... in payment” amounts to a legal conclusion on the part of the affiant and cannot support the summary judgment.

Black’s Law Dictionary 505 (4th ed. rev. 1968) defines “default” as: “[A] failure. ... An omission of that which ought to be done. . . . [T]he omission or failure to perform a legal duty.” What was the failure or omission to perform a legal duty which would amount to “default of Flan Corporation, Inc., in the payment of the Note,” as stated in the affidavit? An examination of the note, the guaranty agreement and the deed of trust reveals that there were numerous acts or omissions set out in the instruments which would give rise to a legal duty or duties which, if not performed, would constitute a “default.” Several of these may be referred to as a “default ... in payment.” It is quite apparent that, absent a legal default pursuant to one or more of the possible contingencies, the appellants were not liable on their guaranty and the property could not be legally sold at foreclosure sale by the trustee. The affidavit of the trustee nowhere asserts or describes any specific act or omission that would constitute legal “default ... in payment of the Note,” or any other default specified in the note, the deed of trust or the guaranty agreement. Nowhere in the affidavit does the trustee state as a fact that the principal of the note was due. He could not do so for the simple reason that unless a demand is made, the note will not become due, according to its terms, until May 1, 1976. Nowhere in the affidavit does the trustee state as a fact that a demand was made for payment of the principal or that the interest payments on the note were not made when due. At no point in the affidavit does the trustee set forth facts which would give rise to a default and therefore acceleration as provided by any of the other provisions of the note, deed of trust or guaranty agreement, referred to in the margin. The simple statement in a trustee’s affidavit that there was a “default ... in payment of the Note” amounts to nothing more than a legal conclusion. Tackett v. Homeowners Loan Corp., 286 Ky. 388, 150 S.W.2d 229, 230 (Ct.App.1941). We hold, therefore, that the principal supporting affidavit on these elements of the cause of action does not set forth competent probative evidence which would be admissible during the trial of the case. The summary judgment rendered in reliance upon such affidavit is erroneous and must be set aside.

Since the case must be reversed and remanded to the trial court for further proceedings, we deem it advisable to discuss the remaining points of error advanced by appellants.

Appellants contend that a fact issue was presented by D. B. Smith’s affidavit and supplemental affidavit in opposition to the motion for summary judgment, wherein he stated that Flan Corporation was formed by its president Sandell, at the insistence of appellee’s predecessor, for the sole purpose of evading the usury statutes of the state of Texas. In his affidavit witness Smith said:

I was involved in the negotiations with Flan Corporation and Justice Mortgage Investments in connection with Justice Mortgage Investments loan to Flan Corporation. I can state of my own knowledge that Justice Mortgage Investments required Gene Sandell, now President of Flan Corporation, to incorporate and form the corporation of Flan Corporation in order to make the loan which is the subject matter of this litigation. Justice Mortgage Investments stated to Mr. San-dell that such loan could not be made without the incorporation because of the need to charge an interest rate higher than the 10% permitted under Texas law.

Tex.Rev.Civ.Stat.Ann. art. 5069-1.02 (Vernon 1971) provides that: “Except as otherwise fixed by law, the maximum rate of interest shall be ten percent per annum.” However, Tex.Rev.Civ.Stat.Ann. art. 1302-2.09 (Vernon Supp. 1974) expressly authorizes corporations to “agree to and stipulate for any rate of interest as such corporation may determine, not to exceed one and one-half percent (1½%) per month . under which the original principal amount is Five Thousand Bollards ($5,000) or more . . . .” Thus, pursuant to Texas law, it was perfectly legal for the original owner of the note to charge a rate of interest in excess of ten percent to Flan Corporation. The mere fact that the corporation was formed in order to obtain the loan, which is the subject matter of this litigation, does not render the transaction void or illegal. While it is true that the corporate entity may be disregarded where it is utilized as a cloak or cover for fraud or some other transaction tainted with illegality, such is not the situation in this instance. The affiant who made the affidavit in opposition to the motion for summary judgment states no facts, or even conclusions, which indicate that the corporation was created as a cloak or cover for a fraudulent or illegal transaction. As stated by the court in Jenkins v. Moyse, 254 N.Y. 319, 172 N.E. 521 (1930), the corporation has been created because the statute permits a corporate entity to make the contract which would be illegal if made by an individual. “The law has not been evaded but has been followed meticulously in order to accomplish a result which all parties desired and which the law does not forbid.” To the same effect see Tel Service Co. v. General Capital Corp., 227 So.2d 667 (Fla.1969); Leader v. Dinkler Management Corp., 20 N.Y.2d 393, 283 N.Y. S.2d 281, 230 N.E.2d 120 (1967).

In opposing the motion for summary judgment, appellants filed an affidavit which stated that the property which was sold at the trustee’s sale for $450,000 was actually worth well in excess of $600,000. Thus appellants now argue that this raises a fact issue as to the fairness of the sale and the adequacy of the consideration. We cannot agree. Inadequacy of consideration alone does not render a foreclosure sale void if the sale was legally and fairly made. Tarrant Savings Ass’n v. Lucky Homes, Inc., 390 S.W.2d 473, 475 (Tex.1965).

Appellants also contend that since Mr. Kearby was senior vice president of Glenn Justice Mortgage Company, Inc. and was also the trustee who conveyed the property at the foreclosure sale, the sale was void because the buyer and the seller were the same persons. Again, we cannot agree with appellants. A mortgagee with power to sell may purchase at his own sale made at public auction, so long as the sale is conducted fairly and in accordance with the terms of the deed of trust. Southern Trust & Mortgage Co. v. Daniel, 143 Tex. 321, 184 S.W.2d 465 (1944); Tarrant Savings Ass’n v. Lucky Homes, Inc., 390 S.W.2d 473, 476 (Tex.1965).

Finally appellants say that the trial court erred in holding Mrs. Skeen jointly and severally liable for the indebtedness. The contract of guaranty, executed by Mrs. Skeen, expressly limits her liability to “her interest in community property and to separate property received by her directly or indirectly from her husband, Clyde Skeen.” The judgment rendered by the trial court decrees that “plaintiff, Glenn Justice Mortgage Company, Inc. do have and recover of and from the defendants, Flan Corporation, Clyde Skeen, and Helen Skeen, jointly and severally, judgment in the sum of $216,-718.36.” This judgment exceeds the limits of liability contracted for in the guaranty agreement. In the event of another trial, the trial court should, within the record made, limit Mrs. Skeen’s liability, if any, to that contracted for in the agreement.

The judgment is reversed, and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.

      . All or any one of the following constitute occurrences which would amount to a default under the terms and conditions of the note, guaranty agreement or deed of trust: (1) Failure to pay principal on demand on or by May 1, 1976; (2) failure to pay interest on the note when same became due; (3) failure to pay all taxes prior to delinquency; (4) failure to keep all insurable premises insured; (5) failure to pay upon request by noteholder a sum equal to one-twelfth of the estimated annual ground rents, taxes, hazard insurance premiums, and special assessments next due on the mortgaged premises; (6) assignment by grantors for the benefit of their creditors; (7) adjudication of grantors as bankrupt or institution of proceedings under federal bankruptcy law; (8) any time the ownership of the mortgaged premises becomes vested in a person other than grantors; (9) discovery by noteholder that any statement, representation or warranty in the note or deed of trust or in any writings delivered to noteholder pursuant to the provisions of the deed of trust is false, misleading or erroneous in any material respect; (10) admission by grantors in writing of their inability to pay the debts generally as they become due; (11) order entered by any court appointing a receiver, trustee or liquidator of grantors or any guarantor of all or any substantial part of grantors’ or guarantors’ assets; (12) failure of grantors or guarantors to pay any money judgment against them at least ten days prior to the date on which the assets of grantors or any guarantor may be sold to satisfy such judgment; (13) failure to have discharged within ten days after the commencement any attachment, sequestration, or similar proceedings against any of grantors’ assets; (14) condemnation of a sufficient part of the mortgaged premises as to materially affect grantors’ ability to perform their obligations; (15) any change in ownership of more than fifty percent of the shares issuable and outstanding of grantors; and (16) failure to maintain the loan commitment dated April 30, 1973 from Texas First Mortgage REIT to grantors in full force and effect and do all things required by such commitment in order that it might be consummated on or before May 1, 1976.


author: O’QUINN, Justice.

text:
    Ronald Reed FRANKE, Appellant, v. Rodger M. ZIMMERMAN, Appellee.
    No. 12244.
    Court of Civil Appeals of Texas, Austin.
    July 23, 1975.
    Terry R. Tippit, Austin, for appellant.
    William M. Rugeley, San Marcos, for ap-pellee.
   O’QUINN, Justice.

This appeal is from judgment in a lawsuit brought in county court at law of Hays County by Rodger M. Zimmerman, an attorney, to collect unpaid attorney’s fees from Ronald Reed Franke, who by cross action in the case sued Zimmerman for alleged negligence in giving erroneous advice and for withdrawing without reason from representation of Franke.

After trial before the court without intervention of a jury, the court entered judgment that Franke take nothing by his cross action and that Zimmerman recover attorney’s fees in the amount of $918.85.

Franke appeals and brings three points of error, all directed exclusively to denial by the trial court of recovery by Franke on his cross action. We will overrule all points of error and affirm judgment of the trial court.

The trial court filed findings of fact and conclusions of law and a statement of facts has been brought forward. The court found “there was no negligence on the part of the cross-defendant ... in his representation of the cross-plaintiff.” In the judgment the court stated, “ . . . having found no negligence on the part of the Cross-Defendant . . . . in his representation of Cross-Plaintiff,” [it is decreed] . that Cross-Plaintiff Franke take nothing herein against Cross-Defendant Zimmerman . . . ”

Specific findings of fact filed, or stated in the judgment, when a statement of facts is brought forward, will be sustained if there is any evidence to support them, even if the appellate court might have reached a different conclusion. Gulf Freeway Lumber Company v. Houston Investment Realty Trust, 452 S.W.2d 39, 43 (Tex.Civ.App.Houston 14th 1970, no writ); 4 McDonald: Texas Civil Practice, sec. 16.-10(b), p. 29 (1971).

Franke consulted Zimmerman in connection with a dispute Franke had with other persons over settlement of an estate. Franke had drawn an arbitration agreement, which he and the other interested persons signed, and later wished to avoid arbitration. A district court appointed an arbitrator and afterwards approved the arbitration report. Meanwhile, Franke asked Zimmerman’s advice regarding the agreement, and Zimmerman, at Franke’s behest, advised other parties to the agreement by letter that Franke would “no longer consent, submit to, or participate in any arbitration as outlined in the Arbitration Agreement dated July 15,1970,” and added, “This notice should act as Mr. Ronald Franke’s intent to rescind the Arbitration Agreement for all purposes.”

Franke contended Zimmerman advised that Franke had a right to rescind the arbitration agreement, and that he followed the advice, although under provisions of Article 224, Vernon’s Ann.Tex.Civ.St., effective January 1,1966, the agreement was by law enforceable and Franke had no right of rescission. (See Acts 1965, 59th Leg., p. 1593, ch. 689, see. 1). Zimmerman denied he had so advised Franke, and testified that, on the contrary, he had fully explained to Franke his rights. Zimmerman stated he did tell Franke he could try to rescind and risk the consequences of suit for damages, or could continue to participate in negotiations under the agreement and abide by the final arbitration.

Zimmerman denied he had sought to advise Franke which course to follow. Zimmerman testified that Franke had written the contract and was “an exceptional person,” in that “He wanted to know exactly what was going on. He wanted to know why this, why that . . . ” Zimmerman testified he advised Franke “many times” that he was throwing away good money after bad, but that Franke and his sister, one of the other persons interested in the estate, were at “opposite poles,” and Franke would “not at all” take Zimmerman’s advice.

After the arbitration hearing in district court, when the court approved the arbitrator’s report which was contrary to Franke’s contentions, Zimmerman discontinued his representation of Franke and did not appeal the case. Franke contends that Zimmerman abandoned his client “without good and sufficient cause.” Franke concedes on appeal that ordinarily the contract of employment and duty of further representation by the attorney terminates upon the rendering of a final judgment. The trial court, at the conclusion of trial of this case, observed from the bench, “ . . . every time there’s a lawsuit and somebody loses, somebody is going to be upset . there was no abandonment. From the evidence it showed that he [Franke] had an opportunity to hire another attorney.”

We conclude that the findings of the trial court are supported by evidence of probative force, and the judgment ought to be affirmed.

The judgment of the-trial court is in all things affirmed.

Affirmed.


text:
    Auburn T. McFADDEN, Jr., et ux., Appellants, v. BRESLER MALLS, INC., Appellee.
    No. 12251.
    Court of Civil Appeals of Texas, Austin.
    July 23, 1975.
    Rehearing Denied Aug. 13, 1975.

      Barry K. Bishop, Donald Scott Thomas, Jr., Clark, Thomas, Denius, Winters & Shapiro, Austin, for appellants.
    J. Manuel Hoppenstein, Hoppenstein & Prager, Dallas, Gerard P. Nugent, Austin, for appellee.
   O’QUINN, Justice.

This appeal is from judgment of a county court at law, in a suit of forcible entry and detainer, awarding $5,414.91 as attorney’s fees and expenses appellee sought as “necessary and reasonable” in prosecuting a cause for recovery of $3,837.92 which represented the agreed fair market value of the premises for a period of less than four and one-half months.

Bresler Malls, Inc., appellee, brought suit against appellants, Auburn T. McFadden and wife, by notice of appeal against a judgment rendered in justice court denying to plaintiff its writ of forcible entry and detainer and writ of restitution. In the county court at law Bresler Malls alleged that the reasonable rental value of the premises held by the McFaddens was $900 per month for the months of May through September of 1974, or a minimum of $4,500, and in addition sought reasonable attorney’s fees and expenses in prosecuting the suit, “in accordance with Rule 752 of the Texas Rules of Civil Procedure.”

Appellants, as defendants below, in answering plaintiff’s petition recognized their obligation to make specified monthly rental payments, and the record shows that appellants continued such payments to the month of trial. The parties stipulated in trial court, at the outset of the proceedings, that a “fair market value for the premises for the period of time in question” would be. $882.38 per month, a total amount of $3,837.82 to the date of trial. The sum finally awarded Bresler Malls was $3,837.92, or ten cents more than the amount stipulated. The stipulation further recited that the total rent “reflects checks for the past months for the rent that have [has] been tendered to the Plaintiff by the Defendant[s].”

The premises involved consisted of store space in Highland Mall, in the city of Austin, to be used by the McFaddens “solely as a Bresler’s 33 Flavors lee Cream Shop selling handpacked and dipped ice cream, soda fountain products and other related ice cream specialty items and no other products whatsoever without prior consent of Landlord in writing.” (Emphasis added) Sale by the McFaddens of popcorn, coffee, and sandwiches without prior permission was a basis for Bresler Malls’ contention that the tenants had breached the lease agreement.

After the stipulations, the only issue before the trial court was the question of possession of the premises, dependent upon whether the lease contract between the parties had been breached, and the collateral issue of reasonable attorney’s fees and expenses to be awarded the prevailing party under Rule 752. The trial court decided the issue of breach of the lease contract against appellants and awarded to Bresler Malls “damages in the sum of ... [$3,837.92] being the reasonable rental value of said premises from May 1, 1974 until the date of trial.”

In addition to award of the rents, which appellants stipulated were due and had tendered each month prior to trial, the trial court awarded Bresler Malls the sum of $5,414.91 “as reasonable attorneys [sic] fees and expenses incurred in prosecuting this appeal, and for costs of court.”

Appellants bring the single point of error that “There is insufficient evidence to support the award of attorney’s fees . and the fees awarded are grossly excessive and contrary to the great weight and preponderance of the evidence.”

We will sustain the point of error and reverse the judgment of the trial court.

Appellee presents two counterpoints on appeal, the first of which we deem it appropriate to dispose of now. The first point challenges appellants’ right “to raise the issue of reasonable attorney’s fees for the first time on appeal.”

Appellee argues that after submitting “its evidence as to reasonable attorney’s fees, Appellants neither offered any evidence to the contrary nor did they even dispute Appellee’s evidence. The issue was never presented to the trial court and the Appellants should not now be allowed to litigate it for the first time on appeal.”

Appellants raised the issue of attorney’s fees by general denial and by an explicit affirmative defense denying “that Plaintiff is entitled to any recovery of damages or attorney’s fees.” Appellants also sought affirmative relief by suing “to recover all necessary and reasonable expenses, including a reasonable attorney’s fee, incurred in defending this suit in county court.”

If appellants believed at the trial that appellee had failed to offer sufficient evidence to support recovery of attorney’s fees, or that the evidence offered was so incomplete as to constitute no evidence, their failure to offer rebuttal testimony did not amount to a waiver of the issue, nor did their action amount to an admission that appellee had discharged its burden of proof.

In its contention that the issue of attorney’s fees may not be raised for the first time on appeal appellee relies on decisions in cases in which appellate courts declined to consider issues which had not been pleaded in the trial court. Those cases are not in point. State of California Department of Mental Hygiene v. Bank of the Southwest National Association, 163 Tex. 314, 354 S.W.2d 576, 581 (1962); Ayoub v. Herold, 287 S.W.2d 539, 544 (Tex.Civ.App. El Paso 1955, writ ref. n. r. e.); Yelverton v. Brown, 412 S.W.2d 325, 328-29 (Tex.Civ.App. Tyler 1967, no writ); Arnold v. Crockett Independent School District, 389 S.W.2d 608, 609 (Tex.Civ.App. Tyler 1965, affmd. in part, rev. and remd. in part, Tex., 404 S.W.2d 27), citing Victory v. State, 134 S.W.2d 477, 481 (Tex.Civ.App.1939, affmd. 138 Tex. 285, 158 S.W.2d 760, 766).

If appellee’s position is that appellants, in order to raise the issue on appeal, should have filed a motion for new trial, calling the trial court’s attention to the error later complained of on appeal, that position too is untenable. Under their pleadings appellants, both by general denial and affirmative defense, put appellee in a position of having to prove every material fact of its cause of action, and since the trial was before the court without a jury, motion for new trial was not required to preserve error on appeal. Rule 324, Texas Rules of Civil Procedure. Boswell v. Handley, 397 S.W.2d 213, 217 (Tex.Sup.1965).

Appellee’s second point is counter to the issue presented in this appeal by appellants, and will be considered in disposing of that question.

The only evidence heard by the trial court on the question of attorney’s fees were certain stipulations, in summary, as follow:

(1) If called to the stand, Gerry Nugent, one of the attorneys for appellee, would testify that he spent less than one hour “familiarizing himself with the file,” and spent 27 hours in research, preparation, and trial of the case, his hourly rate being $50.

(2) If called, J. Manuel Hoppenstein, also attorney for appellee, would testify he spent 60 hours in research, preparation, and trial, and that his usual charge is $60 per hour. In addition, Hoppenstein indicated that for travel, telephone expense, and court costs advanced, he had spent $459.16.

(3) Charles Babb, not of counsel, if called would testify that charges of $50 or $60 an hour are reasonable.

(4) If called, Donald Scott Thomas, Jr., counsel for appellants, would testify that he spent 11 hours in preparation of the case and two days in trial, at an hourly rate of $40. Thomas further would offer the minimum fee schedule of the State Bar of Texas on trial of civil cases in county court which specifies minimum fees of $35 for perfecting appeal from justice court, $50 for preparation, and $75 per day for court appearances. Thomas further would testify that for representing appellants a total charge of $200 would be a reasonable fee.

Appellants have not contested expenses of $459.16 stipulated by Hoppenstein. The question remaining is whether attorney’s fees, amounting to nearly $5,000, were shown to be necessary and reasonable under the evidence adduced.

Appellants’ position is that the court’s judgment awarding the sum of $5,414.91 for attorney’s fees and expenses “cannot be maintained as ‘necessary and reasonable’ under Rule 752, Texas Rules of Civil Procedure.” Rule 752 specifies damages which appellant or appellee, on the trial of a forcible entry and detainer proceeding in county court, may plead and prove: [1] Damages “suffered for withholding or defending possession of the premises during the pendancy of the appeal and [2] also all necessary and reasonable expenses incurred in prosecuting or defending the cause in the county court . ” (Emphasis added)

Damages awarded for withholding the premises are not at issue on appeal and were, as indicated earlier, stipulated by the parties. The sole issue is whether attorney’s fees, included by the trial court in “necessary and reasonable expenses incurred in prosecuting the cause” were shown by appellee to be necessary and reasonable. Appellants contend also that the attorney’s fees awarded by the trial court were “grossly in excess of the State Bar of Texas Minimum Fee Schedule, which, one supposes, were based in large part upon the number of hours which would be reasonably expected to be necessary.”

Preliminary to meeting the issue of sufficiency of the evidence to support the judgment for attorney’s fees, appellee contends, first, that even in the absence of any evidence, the trial court could have awarded attorney’s fees; and second, that since findings of fact and conclusions of law were not filed, the appellate court “must presume that the trial court found facts in a manner to support its judgment.”

Under the first contention appellee relies on decisions by a court of civil appeals and asserts, “When the trial is to the Court without a jury, the Court is presumed to know the amount of a reasonable fee without evidence.” That principle is not now and has never been established law in this state, and, as advanced by counsel for ap-pellee, is in direct conflict with decisions of the Supreme Court. In 1966 the Supreme Court expressly rejected any holding of courts of civil appeals that reasonableness of attorney fees is a matter “entrusted to the trial judge’s discretion,” or that “the trial judge may adjudicate reasonableness on judicial knowledge and without benefit of evidence.” Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901, 907 (Tex.Sup.1966). See also Johnson v. Universal Life & Accident Ins. Co., 127 Tex. 435, 94 S.W.2d 1145, 1146 (1936); Trevino v. American National Ins. Co., 140 Tex. 500, 168 S.W.2d 656, 660 (1943).

This Court followed Britton in 1974 and applied the principle that reasonable attorney’s fees must be established by competent evidence. Huntley v. Huntley, 512 S.W.2d 767 (Tex.Civ.App. Austin 1974, no writ). There this Court held that reasonableness may not be entrusted to the trial court’s discretion and the court may not adjudicate reasonableness on judicial knowledge without the benefit of evidence.

Other cases in which the principle of Brit-ton has been followed include Reynolds Research & Manufacturing Co. v. Scamardo, 412 S.W.2d 941, 943 (Tex.Civ.App. Waco 1967, no writ); Schecter v. Folsom, 417 S.W.2d 180, 183 (Tex.Civ.App. Dallas 1967, no writ); Webster v. Webster, 442 S.W.2d 786, 789 (Tex.Civ.App. San Antonio 1969, no writ); Morriss v. Pickett, 503 S.W.2d 344, 350-351 (Tex.Civ.App. San Antonio 1973, writ ref. n. r. e.); Boaz Well Service, Inc. v. Carter, 437 S.W.2d 38, 41-2 (Tex.Civ.App. Fort Worth 1969, no writ); Smith v. Davis, 453 S.W.2d 340, 347 (Tex.Civ.App. Fort Worth 1970, writ ref. n. r. e.); Johns v. Jaeb, 518 S.W.2d 857, 861 (Tex.Civ.App. Dallas 1974, no writ).

Appellee’s insistence that, in the absence of findings and conclusions by the trial court, an appellate court must presume the trial court found facts in a manner to support the judgment argues a rule which means only that in a record where evidence of probative value can be found to support the trial court’s judgment, the judgment must be affirmed on whatever theory of law is applicable. If evidence sufficient to support the judgment is not found in the record, the rule has no application. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.Sup. 1962); Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex.Sup.1968). See also decisions of this Court in Prudential Insurance Company of America v. Lucas, 456 S.W.2d 429, 433 (Tex.Civ.App. Austin 1970, writ ref. n. r. e.) and Hays v. H. J. Hogan, Inc., 474 S.W.2d 330, 332-3 (Tex.Civ.App. Austin 1971, no writ), in which the trial court’s judgment was affirmed on theories found to be supported by competent evidence.

Rule 752, Texas Rules of Civil Procedure, is one of seventeen Rules adopted in 1941 governing special proceedings in forcible entry and detainer. (138 Tex. 442, 661). These Rules were adopted from statutes, Articles 3974-3994, R.S.1925, and Rule 752, as last amended in 1943 and pertinent to this cause, provides:

“Rule 752. Damages

“On the trial of the cause in the county court the appellant or appellee shall be permitted to plead and prove his damages if any suffered for withholding or defending possession of the premises during the pend-ency of the appeal and also all necessay and reasonable expenses incurred in prosecuting or defending the cause in the county court . ” (Emphasis added)

The right of a party to the appeal of an action in forcible entry and detainer to recover expenses incurred, including attorney’s fees emanates exclusively from Rule 752, as the right was derived from the statute (art. 3990), and necessarily must be regarded as a penalty. Tallwater v. Brodnax, 137 Tex. 604, 156 S.W.2d 142, 144 (1941); Perry v. Luettich, 132 Tex. 159, 121 S.W.2d 332, 333 (1938). Certain types of claims, not paid or satisfied thirty days after presentment, if reduced to judgment may justify recovery of a reasonable amount as attorney’s fees under Article 2226, V.A.T.S.

But neither Rule 752 nor Article 2226 prescribes the standards by which a reasonable amount of attorney’s fees may be fixed by the trial court. In arriving at an amount that will stand the test of reasonableness, the court as trier of the facts, must be guided by standards developed in the body of case law on the subject.

The elements most frequently considered by the courts in determining what amount would be reasonable as attorney’s fees have been found in the cases and under the headings listed:

1. The nature of the case, its difficulties, complexities and importance, and the nature of the services required to be rendered by the attorney. Texon Oil and Land Co. v. Hanszen, 292 S.W. 563, 567 (Tex.Civ.App. El Paso 1927, no writ); Weatherly v. Longoria, 292 S.W.2d 139, 141 (Tex.Civ.App. San Antonio, 1956, writ ref. n. r. e.); Gulf Paving Company v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155, 160 (1945).

2. The amount of money involved, the client’s interest at stake, and the amount of time devoted by the attorney and the benefit derived by the client. Weatherly v. Lon goria, supra; Brand v. Denson, 81 S.W.2d 111, 113 (Tex.Civ.App. Austin 1935, writ dsmd.); Vaughn v. Gunter, 458 S.W.2d 523, 528 (Tex.Civ.App. Dallas, 1970, writ ref. n. r. e., Tex., 461 S.W.2d 599).

3. The time necessarily spent by the attorney, the responsibility imposed upon counsel, and the skill and experience reasonably needed to perform the services. Brand v. Denson, supra; United Finance and Thrift Corporation v. Chapman, 369 S.W.2d 782, 784 (Tex.Civ.App. Eastland 1963, no writ); Weatherly v. Longoria, supra.

Other criteria have been applied in other decisions, but the tests stated are sufficient for disposition of this appeal. Counsel for appellee made no proof in county court, save such as may be implied under the stipulations, that the eighty-eight hours they spent on the case, working as a pair, were necessary or reasonably necessary to perform the services they were called upon to achieve the results obtained. Counsel for appellant, working alone, showed that he spent less than one-third the time consumed by appellee’s two lawyers, and stipulated that $200 would be a reasonable fee if appellant prevailed in the case. Stipulations by a member of the bar, not of counsel, were merely that an hourly charge of $50 or $60 by an attorney were reasonable “taking into consideration the nature of the suit itself, complexities, and the value of the problem involved,” and did not purport to touch upon necessity in such a case of total hours which mounted into the equivalent of eleven eight-hour days.

Opinion testimony of an attorney is not conclusive, and the trier of the facts must take into consideration the facts in relation to the services. Trevino v. American National Insurance Company, 140 Tex. 500, 168 S.W.2d 656, 660 (1943); Gulf Paving Go. v. Lofstedt, supra, 188 S.W.2d 160. (See also, opinion testimony held not conclusive on attorney’s fees in summary judgment proceedings involving Article 2226, Coward v. Gateway National Bank, 525 S.W.2d 857, Tex.1975.)

The ti'ial court awarded $5,414.91 as “reasonable attorneys [sic] fees and expenses,” without designating the portion of the award allotted to attorney’s fees and the part awarded for expenses incurred. Hop-penstein’s stipulation indicated expenses amounting to $459.16 incurred by him. The record does not disclose other proof of expenses incurred by appellee in prosecution of the appeal in county court. Deducting from the total award of $5,414.91 the amount of expenses proved leaves a balance of $4,955.75 presumed to be the award for attorney’s fees. By multiplying 27.8 hours Nugent stipulated by $50 per hour produces the sum of $1,390, and multiplying 60 hours Hoppenstein stipulated by $60 an hour yields the sum of $3,600, or a total of $4,990 possibly awarded as attorney’s fees.

But whatever the amount of attorney’s fees, whether $4,955.75 or $4,990, the award was not supported by sufficient evidence that the amount was reasonable. Appellee failed to discharge the burden of showing by evidence of sufficient probative value that the fees awarded were reasonable when examined in the light of facts showing the nature of case, its want of complexities and difficulties, and the comparatively simple demands upon the time, skill and services of the attorneys.

Few statutory proceedings in Texas courts have been established so long, or have become so clearly defined and circumscribed, as the proceeding in forcible entry and detainer. After its origin in 1876 (Acts 1876, 15th Leg. p. 154, sec. 4 of ch. 103; Gam.Laws, vol. 8, p. 991), the proceeding became Title 45, Articles 2440-2463, in the Code of 1879 and was carried forward in each of the succeeding Codes in 1895, 1911, and 1925. With adoption of the Texas Rules of Civil Procedure in 1941 the statutes of 1925 were translated to the Rules as section 2 (Rules 738-755) of Part VII relating to special proceedings.

The entire proceeding is covered by a treatise of only 33 sections in Texas Jurisprudence, supplemented by two sections, with annotations to the field of case law construing the statutes and Rules. (25 Tex. Jur.2d, pp. 464-497) A remarkably brief but inclusive review of the proceeding was stated in 1962 by Supreme Court in Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368, 371 (1962). Lowe ably covers the entire subject, from justice court to the court of civil appeals, in less than 34 pages of editorial matter. Texas Practice, vol. 6A, L. Hamilton Lowe: Remedies, pp. 1-34 (1973). The need for extensive research has been obviated by these sources, and the likelihood that new and complex problems will arise in this simple proceeding is so remote as to be almost non-existent.

By its own terms, the proceeding in county court is limited to the issues of fair market value of the premises, the right of possession, and the collateral issue of reasonable attorney’s fees and expenses to be awarded the prevailing party under Rule 752. In this case fair market value was stipulated, leaving only the issue of right of possession and the collateral issue of attorney’s fees and expenses incurred.

Determination of the issue of possession was dependent upon whether the lease contract had been breached. This issue virtually was reduced early in the trial to a question of law when, at the outset, appellants stipulated that they had been selling popcorn almost from the beginning of the lease term, and subsequently admitted in testimony that they had been selling sandwiches and coffee. The trial court apparently had little difficulty in concluding that popcorn, coffee, and sandwiches were not commodities which could be classified as “hand-packed and dipped ice cream, soda fountain products and other related ice cream specialty items,” to which appellants were limited under the lease contract.

Appellee argues on apppeal that “the Appellants defended upon a complex theory of law. In addition to a plea in abatement and a general denial, Appellants alleged the affirmative defense that Appellee had, in its relations with the Appellants, breached the Texas Anti-Trust laws.” We fail to find this contention supported by the record. Although appellants, in their original answer, interposed a plea in abatement and an affirmative defense under the Texas Business and Commerce Code, section 15.01 et seq., and also under section 1 of the Sherman Act and section 3 of the Clayton Act, pertaining to anti-trust violations, the amended answer under which the parties went to trial contained no such pleadings, and those matters were not in issue in actual trial of the case. Counsel for appellants, after pleading violation of anti-trust statutes, apparently observed that the issue was not within the limited scope of Rule 752 and abandoned that position before trial. Counsel for appellee, in exercise of like skill, doubtless noticed the inoperative aspects of the pleading before troubling to gird themselves for combat with a windmill.

There is not sufficient evidence of probative value to support the award of attorney’s fees in the sum of approximately $5,000. In cases of this type attorney’s fees are in the nature of a penalty, which in this case is so disproportionate that it exceeds recovery of rents by appellee by more than twenty-five percent. The amount of the award is not supported by any of the principles, rules, or criteria by which reasonableness of attorney’s fees is determined by the courts.

The award is grossly excessive, but this Court reverses the judgment of the trial court by reason of the insufficiency of evidence to support the award. If the judgment were reversed on the sole ground that the award is excessive, this Court would be under mandatory duty to suggest a remitti-tur under provisions of Rule 440, Texas Rules of Civil Procedure. Carter v. Texarkana Bus Company, 156 Tex. 285, 295 S.W.2d 653 (1956); Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.Sup.1974); Atchison, Topeka and Santa Fe Railway Company v. Ham, 454 S.W.2d 451, 463-4 (Tex.Civ.App. Austin, 1970, writ ref. n. r. e.); Wichita. Valley Ry. Co. v. Wood, 284 S.W. 301 (Tex.Civ.App. El Paso 1926, no writ).

The judgment of the trial court is affirmed, except as to the award of attorney’s fees; that portion of the judgment awarding attorney’s fees is reversed, and the cause is remanded for further proceedings to determine reasonable attorney’s fees, consistent with this opinion.

      . Spelling of appellee’s surname (Luettich) in Texas Reports correctly reflects the official records.


author: EVANS, Justice.

text:
    J. C. ALSUP, Trustee, et al., Appellants, v. F. P. PICKENS, Appellee.
    No. 16510.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 24, 1975.
    Phil Mockford, Austin, for appellants.
    Prappas, Caldwell & Moncure, Brantly Harris, B. Edward Williamson, Houston, for appellee.
   EVANS, Justice.

This is a venue matter.

F. P. Pickens brought this suit against his former employer, Southwest Auto-Chlor System, Inc. and J. C. Alsup as a Trustee under the company’s profit sharing plan. Pickens alleged that he had voluntarily terminated his employment on May 25, 1973 and that he had been paid by the trustees an aggregate sum of $44,762.92 as his vested interest under the plan. He alleged that the trustees had valued the real estate belonging to the plan substantially below its market value, thus reducing the real value of his interest under the plan, and that he was entitled to at least the sum of $79,-561.04 as his vested interest. He sought to have an auditor appointed, the account stated between himself, the trustees and Southwest, and to recover the difference between the amount so determined by the Trustees as his vested interest and the amount to which he claimed he was entitled upon such re-evaluation of the real estate.

Pickens was shown to be a resident of Harris County. J. C. Alsup, Trustee, was a resident of Travis County. Southwest had its principal office and place of business in Travis County. A plea of privilege was filed on behalf of Alsup and Southwest seeking transfer to Travis County, which the trial court overruled.

In its findings of fact the trial court found that the trustees had undervalued Pickens’ interest under the plan and that Southwest had a “real and substantial interest” in the outcome of the litigation. In its conclusions of law it determined that Pickens’ suit was a “judicial proceeding affecting the trust” under a provision of the plan which provided that in any such judicial proceeding affecting the trust it should be necessary to join as parties “only the Trustees and the Company.” The court also concluded that Pickens had a cause of action for statement of accounts based upon a correct valuation and accounting and was entitled to maintain his action in Harris County against Southwest under Section 23, Article 1995, Vernon’s Tex.Rev.Civ.Stat. Ann., and against J. C. Alsup, Trustee, under Section 29a, Article 1995, Tex.Rev.Civ. StatAnn.

Section 23, Article 1995, Tex.Rev.Civ. St at. Ann., provides:

“Suits against a private corporation . may be brought ... in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county.”

In order to maintain venue under this section it was necessary that Pickens prove that a duty was owed to him by Southwest and that such duty had been breached. Employers Cas. Co. v. Clark, 491 S.W.2d 661, 662 (Tex.1973); Victoria Bank & Trust Company v. Monteith, 138 Tex. 216, 158 S.W.2d 63, 67 (Tex.Com.App. Sec. A, 1941); Bartex, Inc. v. Austin Paving Co., 502 S.W.2d 569 (Tex.Civ.App.—Austin, 1973, writ dism’d).

In their first point of error Alsup and Southwest assert there is no evidence to support the trial court’s conclusion that Pickens had a cause of action against Southwest. In deciding this point we consider only that evidence which supports the trial court’s judgment and indulge every reasonable conclusion in favor of the successful party. Mid-Continent Life Insurance Co. v. Huston, 481 S.W.2d 943, 944 (Tex.Civ.App.—Houston, 1972, writ ref’d n. r. e.).

The provision in the plan to the effect that the Trustees and the company were the “only” necessary parties required to be joined in a judicial proceeding affecting the plan does not, in our opinion, establish any basis for holding a cause of action to be maintainable against Southwest in Harris County. It is conceivable that an employer might exercise such control over a trust committee administering such plan as to render itself liable for illegal action on the part of the trustees. Food Fair Stores, Inc. v. Greeley, 264 Md. 105, 285 A.2d 632 (1972); 54 A.L.R.3d 189, 194. In the case before us Southwest was given rather extensive authority with respect to the appointment and removal of trustees, the approval of their accounting and the right to amend and discontinue its participation in the plan. However, the valuation of trust assets was a matter entirely within the trustees’ discretion and control and the plan expressly provided that under no circumstances should the trust assets ever revert to, be used or enjoyed by, Southwest. There is no evidence that Alsup or other officers of Southwest improperly influenced the trustees in their valuation of the real estate belonging to the trust nor, in our opinion, is there evidence from which such improper conduct might be reasonably inferred. We therefore hold that Pickens failed, as a matter of law, to establish a cause of action against Southwest and that the judgment of the trial court must be reversed so that the cause may be properly transferred to Travis County, the county of Alsup’s residence and the principal place of business of Southwest.

In view of our holding on this point we deem it unnecessary to consider the question raised by the second point of error as to whether there was proof that Southwest had an agency or representative in Harris County within the meaning of Sec. 23, Article 1995, Tex.Rev.Civ.Stat.Ann., nor the third point of error as to whether Alsup was a necessary party to the action against Southwest under Section 29a, Article 1995, Tex.Rev.Civ.Stat.Ann.

Reversed and remanded with instructions that the cause be transferred to Travis County, Texas.


author: DIES, Chief Justice.

text:
    The GREAT EASTERN LIFE INSURANCE COMPANY, Appellant, v. Leaman JONES et ux., Appellees.
    No. 7725.
    Court of Civil Appeals of Texas, Beaumont.
    July 24, 1975.
    Rehearing Denied Aug. 21, 1975.

      Charles E. Fitch, Houston, for appellant.
    Robert Tucker, Liberty, for appellees.
   DIES, Chief Justice.

Defendant, Leaman Jones, an illiterate Negro, executed a mechanic lien and trust deed to P. G. Fults, d/b/a Hercules Aluminum Company, for certain improvements to his homestead in Dayton, Texas. His common-law wife did not join in either instrument. Later Hercules assigned the note and lien to Montrose Mortgage Investors, Inc., who then assigned the instruments to The Great Eastern Life Insurance Company, our plaintiff. The note Jones executed to Hercules for the improvements was in the principal sum of $4,600. The deed of trust provided “the holder of the note above described is subrogated to all liens arising by and through the note above described for which the note secured herein is given.”

Defendant testified that at the time he executed the note for the improvements there was a discussion as to the payee discharging the tax liens upon his property, saying: “They were supposed to pay the taxes off.” Montrose Mortgage paid the following taxes upon defendant’s property: Dayton Independent School District $51.31; Liberty County $21.78; Dayton Drainage District $1.10; City of Dayton $2.51. These sums represented tax liens upon the property involved in this suit. Defendant made no payments upon the note nor did he make a tender of any amount when the suit was instituted.

It is clear from our record that at the time of the foreclosure under the deed of trust, defendant was in default upon the payments due under the note. Plaintiff bid the property in at the trustee’s sale and then instituted this suit in trespass to try title.

The jury failed to find that defendant represented himself as being a single man at the time of the execution of the note; but did find that defendant and Mae Ollie Jones entered into a common-law marriage in 1944. The uncontroverted evidence disclosed that this marriage had not been dissolved by death or divorce at the time of the making of the deed of trust.

The trial court entered judgment declaring all liens, claims and deeds of conveyance held by plaintiff to be null and void as to the property involved in the suit; that plaintiff recover $1,025 plus interest from the defendant; that plaintiff take nothing from defendant and his wife “as to the land in question;” and that defendant recover his costs.

Plaintiff’s four points are concisely stated in its brief thusly:

“The question presented in this ease can simply be stated as follows: Assuming property to be homestead, can the husband without the wife’s joinder, give a lien (which ordinarily would be invalid as a lien under the assumed facts) that would be valid to the extent that it was given to secure a party paying delinquent ad valorum taxes.”

We answer this in the negative.

In the clearest possible language, Tex. Const. art. XVI, § 50 (Supp.1974-1975) requires the joinder of the wife in the creation of a lien for improvements upon a homestead. But, plaintiff argues that “a portion of the original indebtedness of Ap-pellee Leaman Jones (the amount of delinquent taxes paid) was secured by a valid lien and as such the foreclosure under the February 18, 1965 deed of trust passed title to Appellant.” Primary reliance is placed upon language found in Lewis v. Investors Savings Association, 411 S.W.2d 794 (Tex.Civ.App.—Fort Worth 1967, no writ), and W. C. Belcher Land Mortgage Co. v. Taylor, 212 S.W. 647 (Tex.Comm’n App.1919, jdgmt. adopted).

Each of the cases relied upon is readily distinguishable from the case at bar. In Lewis, the wife joined in the execution of the original note and lien; and, after the lienholder had paid the taxes and became subrogated to the tax liens, the husband alone executed the renewal upon which the foreclosure was had. In our case, the wife had no connection whatsoever with the creation of the lien. In Taylor the wife joined in the execution of the renewal and extension of a note that had been made by her husband prior to his death.

Not only the Constitutional provision noted earlier, but a statute, Tex.Rev.Civ.Stat. Ann. art. 5460 (1958), required the joinder of the wife in order to render valid the lien upon the homestead. With this positive language confronting us, we are unwilling to follow plaintiff’s argument that a lien on a homestead void for any reason, whether joined by the wife or not, would be enforceable as long as the agreement obligated the lien holder or its assignee to pay any amount of taxes. We cannot believe this was ever intended. Such a holding would effectually emasculate this homestead exemption. Plaintiff has recovered judgment, as noted immediately below, for its debt. It is deprived of its lien solely because of the failure to follow the Constitutional and statutory provisions with reference to the fixing of the lien upon the homestead.

We turn now to defendant’s cross-point, noting that the second paragraph in the decretal portion of the judgment below awarded plaintiff a money judgment against the defendant. Defendant now attacks such paragraph by a cross-point urging a failure of consideration. Plaintiff specifically limited its appeal to paragraphs one, three, and four of the judgment and did not appeal from the judgment as a whole. Defendant did not perfect an appeal from the adverse portion of the judgment found in paragraph two thereof.

The judgment is clearly severable, and plaintiff complied with all of the provisions of Texas Rules of Civil Procedure 358(c), thus limiting the scope of - the appeal to those portions of the judgment adverse to its contentions. Having failed to perfect his own appeal, we are precluded from considering defendant’s cross-point. Johnson v. Downing and Wooten Construction Co., 480 S.W.2d 254, 257 (Tex.Civ.App., Houston [14th Dist.] 1972, no writ).

All of plaintiff’s points and cross-point of the defendant are overruled. The judgment of the trial court is affirmed.

Affirmed.


author: STEPHENSON, Justice.

text:
    James A. RUSSELL et ux., Appellants, v. Joel Evans McMURTREY et al., Appellees.
    No. 7719.
    Court of Civil Appeals of Texas, Beaumont.
    July 24, 1975.
    Rehearing Denied Aug. 21, 1975.

      Dale E. Muller, Austin, for appellants.
    John C. Drolla, Jr., Austin, for appellees.
   STEPHENSON, Justice.

This is a habeas corpus proceeding filed in a district court in Travis county to recover possession of a minor son, Sean McMur-trey. A petition to intervene filed by the maternal grandparents was granted. Hearing was before the court and judgment rendered granting the habeas corpus petition and ordering delivery of the boy to the father, who was the petitioner. The parties will be referred to here as the father, mother, and grandparents.

The record before us shows the mother as petitioner filed suit for divorce in Colorado. A copy of the decree shows that trial began October 16, 1974, and judgment was entered October 22, 1974. Both parties appeared in person and with their attorneys. That judgment contained recitations to the effect that this father and mother were married in Austin, Texas, May 30,1970, and separated March 11, 1974. Both were found to have been domiciled in the state of Colorado for more than ninety days before that proceeding was commenced. That court found the father and mother entered into a separation agreement attempting to resolve the controversies between them. The mother contended in that court that she had entered into the agreement through duress and undue influence. That court found she failed to sustain her burden of proof and that the agreement was fair and reasonable. Under the terms of that agreement, the mother was to have custody of Shannon who is her natural son but adopted by the father. The father was to have custody of Sean who is the subject matter of this habeas corpus proceeding. The Colorado court found it was to the best interest of such children that custody be awarded as agreed upon and the divorce was granted. This habeas corpus proceeding was then filed November 4, 1974, only thirteen days after the Colorado judgment.

The judgment in this habeas corpus proceeding recites a finding that the Colorado divorce had become final and is entitled to full faith and credit and ordered the mother to deliver possession of the child in question.

The trial court took the only action it could under the circumstances in this case. The issue of custody had been litigated in the Colorado court less than thirty days before this habeas corpus hearing. Custody of the minor child had been placed in the father, and under Tex.Family Code Ann. art. 14.10 (1975) he was permitted to file a petition in habeas corpus to try the issue of “right of possession.” In order to refuse to carry out the Colorado judgment, the trial court here would either have to have found that the Colorado court did not have jurisdiction of the parties or that Sean McMurtrey had been within the state of Texas for at least twelve months immediately preceding the filing of the petition for this writ. Neither the mother nor the grandparents made any contention below or make any contention here, that either of those two situations existed.

In order to raise an issue as to change of custody in the trial court in Texas, pleadings would have to have been filed alleging that the circumstances have materially and substantially changed since the divorce decree. Tex.Family Code Ann. art. 14.08(a) (1975). No such pleadings were filed by either the mother or grandparents, and no motion for continuance was filed in the trial court, and no point of error is raised here on the failure of the trial court to allow anyone time to file such pleadings.

One of the more recent expressions by the Supreme Court of Texas on the issues raised in this case is in Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex.1969):

“The rules controlling our action have been stated. The courts of Texas will give full faith and credit to a child custody decree of a sister state and will not order a change of custody in the absence of proof of a subsequent material change of conditions. Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.Sup.1966); Short v. Short, 163 Tex. 287, 354 S.W.2d 933 (1962). A final judgment in a custody proceeding is res judicata of the best interests of a minor child as to conditions then existing. Ogletree v. Crates, 363 S.W.2d 431 (Tex.Sup.1963); Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955); Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946 (1903). There must be a showing of materially changed conditions to authorize a change of custody. Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.1963); Short v. Short, 163 Tex. 287, 354 S.W.2d 933 (1962). As a matter of public policy, there should be a high degree of stability in the home and surroundings of a young child, and, in the absence of materially changed conditions, the dis-trubing influence of re-litigation should be discouraged. Mumma v. Aguirre and Ogletree v. Crates, supra.

We have carefully read the record and considered all of the points of error, and finding no merit to them they are overruled.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Reba Faye DEGER, Appellant, v. Verlyn Joe DEGER, Appellee.
    No. 5480.
    Court of Civil Appeals of Texas, Waco.
    July 31, 1975.
    Rehearing Denied Aug. 28, 1975.

      Dean Dunlap, Amarillo, for appellant.
    Sanders, Saunders, Brian, Finney & Thomas, Ronald D. Nickum, Amarillo, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Reba Faye Deger from that portion of a judgment in a divorce case which divided property of the parties.

Verlyn Joe Deger sued Reba Faye for divorce and property division. Trial was to the court without a jury, which rendered judgment of divorce and decreed division of the parties’ property.

We summarize pertinent portions of the judgment dividing the parties’ properties.

Verlyn Joe Deger shall take as his separate property the following:

1) Community personal property in his possession.
2) “All right title and interest of the parties in and to that certain tract or parcel of land containing 6S7 acres and described * * * Union County, New Mexico.
3) “All right, title and interest claimed by the parties in and to * * * 160 acres * * * Collingsworth County, Texas, except that Respondent Reba Faye Deger shall retain her undivided one half interest in and to the minerals * * * which interest shall be a non participating, interest which shall not authorize her to lease, sell, convey, or otherwise dispose of undivided non participating one half interest in the mineral estate without the joinder of Verlyn Joe Deger”.
4) Two automobiles.
5) Funds in bank accounts, credit Unions and Teacher Retirement System over which he exercises control or has contributed.
6) Certain Life Insurance policies.

Reba Faye Deger shall take as her separate property the following:

1) “ * * * her undivided one half interest in and to the mineral estate underlying * * * 160 acres * ⅜ Collingsworth County, Texas, except that Verlyn Joe Deger, who also owns as his sole and separate property an undivided one half interest in and to said mineral estate, shall exercise all of the rights of the parties with regard to said estate, and the interest of Reba Faye Deger, in and to said mineral estate shall be a non participating interest and not subject to sale, lease, conveyance, or other disposition without consent of Verlyn Joe Deger”.
2) An automobile.
3) Community personal property in her possession.
4) $4,500. cash to be paid by Verlyn Joe Deger.
5) Funds in bank accounts, credit Unions and Teacher’s Retirement System under her control or in her name.
6) Notes from sale of parties real estate in Maxwell, Texas.

Appellant Reba Faye Deger appeals on 14 points contending, among other matters:

1) The trial court erred in entering a judgment containing an unreasonable restraint against alienation of an interest in real property.
2) The trial court erred in making a manifestly unjust and unfair property division.
3) The trial court erred in determining title to real estate outside the jurisdiction of the State of Texas.

Contention 1 asserts the judgment contains an unreasonable restraint against the alienation, of an interest in real property.

Appellee’s brief concedes this point and says “she should not have been prevented by the judgment from selling or conveying or making other disposition of her interest in the mineral estate without consent of petitioner”.

Contention 2 asserts the property division is manifestly unjust and unfair.

While arithmetical computation cannot be determined with exactitude, the trial court appears to have awarded appellant about $25,000. worth of property, and awarded appellee about $37,000. worth of property.

Contention 3 asserts the trial court erred in determining title to real estate located outside Texas.

The trial court awarded Verlyn Joe De-ger all right title and interest of the parties in 637 acres of land in New Mexico.

It appeared that the parties’ interest amounted to 318 acres (one half of 637 acres), and of this 106 acres would be appel-lees separate property, and 212 acres would be community property, if the property were located in Texas.

The trial court had no jurisdiction over the real estate lying outside the State. However, in setting aside to one of the parties property within its jurisdiction, the court may consider the property beyond its jurisdiction. Askew v. Rountree, CCA, Er. Dismd., Tex.Civ.App., 120 S.W.2d 117; Risch v, Risch, CCA, Er.Dismd., Tex.Civ. App., 395 S.W.2d 709. See also King v. Lowry, CCA, Er.Ref., Tex.Civ.App., 80 S.W.2d 790; Kaherl v. Kaherl, CCA, NWH, Tex.Civ.App., 357 S.W.2d 622; Moor v. Moor, CCA, Er.Den., 24 Tex.Civ.App. 150, 255 S.W. 231; Boman v. Gibbs, CCA, NRE, Tex.Civ.App., 443 S.W.2d 267.

Appellee tacitly concedes this point and contends that this particular portion of the judgment should be held a nullity “which places appellant in a far more advantageous position than that in which she felt she was placed by the trial court”.

We sustain appellant’s points, supra, and reverse that portion of the judgment which divides the properties of the parties. Moreover, from the record as a whole, we believe that a remand is in the interest of Justice. Scott v. Liebman, Tex.S.Ct., 404 S.W.2d 288.

Reversed and remanded.


author: JAMES, Justice.

text:
    Lewis FAULKNER, Appellant, v. HILLSIDE BANK & TRUST COMPANY, Appellee.
    No. 5452.
    Court of Civil Appeals of Texas, Waco.
    July 31, 1975.
    Rehearing Denied Aug. 21, 1975.

      McMullen & Snyder, Waylon E. McMul-len, Dallas, for appellant.
    Crowder, Mattox & Morris, A. Don Crow-der, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a negligence case, wherein after. both sides had rested, the trial court instructed a verdict for the Defendant. We reverse and remand the cause to the trial court for trial on the merits.

Plaintiff-Appellant Lewis Faulkner, an architect, brought this suit against Defendant-Appellee Hillside Bank and Trust Co., alleging that said Bank had negligently verified a $15,000.00 cashier’s check drawn upon and issued by said Bank. Faulkner contended that based upon the Bank’s verification of the cashier’s check, which was in fact a lost instrument, that he, Faulkner, accepted the cashier’s check as payment for a set of architectural plans of the value of $15,000.00.

Trial was had to a jury, wherein both sides presented testimony, after which Defendant Bank moved for an instructed verdict. The trial court granted Defendant Bank’s motion and entered judgment that Plaintiff Faulkner take nothing, from which he appeals.

In determining whether it was proper for the trial court to instruct a verdict in this case, we must view the evidence in the light most favorable to Plaintiff-Appellant Faulkner, the losing party. We must indulge against the instructed verdict every inference that may properly be drawn from the evidence; and if the record reflects any evidence of probative force in favor of the losing party, we must hold the instruction improper. White v. White (Tex.Sup.Ct. 1943) 141 Tex. 328, 172 S.W.2d 295; Triangle Motors of Dallas v. Richmond (Tex.Sup.Ct.1953) 152 Tex. 354,258 S.W.2d 60; Lister v. Morris (Tex.Civ.App., Waco C.A. 1972) 487 S.W.2d 765, no writ history.

Viewing the record in the light most favorable to Plaintiff-Appellant Faulkner, as we are required to do, the pertinent facts are as follows:

About 3 PM Friday, September 14, 1973, one B. W. Boyar, a Delta Airlines pilot who was also in the jewelry business, borrowed $15,000.00 from Defendant Bank to enable Boyar to purchase some diamonds in Belgium for his jewelry business. The loan proceeds were made to Boyar in the form of cashier’s check No. 105570 drawn on Defendant Bank and payable to “B. W. Boyer.” Boyar put the cashier’s check in his shirt pocket and left the Bank. About an hour later, on his way to the Citizens Bank in downtown Dallas, Boyar stopped at a service station to get some gasoline, whereupon he discovered he had lost the cashier’s check. He returned to Defendant Bank about 4:30 PM and reported that his cashier’s check had been lost. The Bank required Boyar to execute an “Affidavit of Lost Official Check or Security Instrument” and to post an indemnity bond, after which Defendant Bank issued to Boyar a second cashier’s check No. 105579, drawn on Defendant in the amount of $15,000.00 and payable to Boyar.

On Sunday afternoon, September 16, 1973, Plaintiff Faulkner, an architect, was inspecting one of his townhouse sites in the Lochwood area of Dallas, at which time he met a man who introduded himself as Russell Smith. Smith told Plaintiff Faulkner he was a building contractor and expressed an interest in Faulkner’s design. Smith also represented to Plaintiff Faulkner that his partner in the construction business was a man named “B. W. Boyer.” Plaintiff was satisfied through his conversation with Smith that Smith was experienced in the construction field, and made an appointment to meet Smith later that same afternoon at another site where a townhouse designed by Plaintiff was under construction. At this second meeting on this same Sunday afternoon, Smith offered to purchase from Plaintiff a set of architectural plans which Plaintiff had prepared on his own time in 1970. The negotiated price was $15,000.00, and Smith tendered as payment cashier’s check No. 105570 which was payable to “B. W. Boyer” and bore an endorsement in that name. Plaintiff took the cashier’s check at that time and agreed to have the plans printed and deliver same to Smith the following day.

The next morning, which was Monday, September 17, 1973, Plaintiff Faulkner asked Becky Strahlendorff, (an accountant in the architectural firm where Plaintiff was employed) to call Defendant Bank and verify the cashier’s check No. 105570 received from Smith. Plaintiff placed the cashier’s check in Mrs. Strahlendorff’s hands for this purpose; whereupon about 11 AM she called Defendant Bank on the telephone, with the cashier’s check in her hands. Mrs. Strahlendorff’s testimony on direct examination concerning her conversation with Defendant Bank is as follows:

“The lady_well, she answered the phone and told me, ‘Hillside Bank and Trust,’ and I told her I needed to talk to someone who could validate the check. I was then put on hold for a matter of a few minutes, someone came to the line, a young girl, I gave her my name, who I was associated with and that I wanted to validate the cashier’s check. I gave her the date on the check the number on the check and who the check was made out to. She asked me to hold for a few minutes, which I did, she came back on the line and told me it was valid.” At another point Mrs. Strahlen-dorff testified, “She came back on and she told me the check made out to B. W. Boyar was valid and that it was in good standing at that time.” On cross-examination her testimony was substantially the same, and concerning the end of the conversation with the lady at Defendant Bank, she testified: “She (the lady at the Bank) came back on the line in a few moments and told me, ‘yes, ma’am, it is valid.’ ”

On Monday morning September 17, 1973, Smith called Plaintiff Faulkner by telephone, at which time they agreed to meet at El Fénix Restaurant to have lunch and to enable Plaintiff to deliver the plans to Smith. Mrs. Strahlendorff reported to Plaintiff that she had verified the cashier’s check, and Plaintiff delivered the plans to Smith at the lunch meeting, and accepted the $15,000.00 cashier’s cheek in payment therefor.

On the afternoon of that same day, Monday, September 17,1973, Plaintiff asked his father tb deposit cashier’s check No. 105570 in a truck-stop account at the Bank of Lancaster. Mrs. Strahlendorff personally delivered the cashier’s check to Plaintiff’s father, who in turn presented the check at the Bank of Lancaster and received in return a cashier’s check on that bank in the amount of $15,000.00. On the next day, Tuesday, September 18, 1973, Plaintiff took the cashier’s check issued by the Bank of Lancaster to the Citizens National Bank and exchanged it for cash. Plaintiff testified he got cash for the cashier’s check because his wife had sued him for divorce just prior to the events above-stated, and his counsel had advised him not to make deposits to his existing bank accounts.

Several days later, Plaintiff was notified by the Bank of Lancaster that Defendant Bank had refused to honor cashier’s check No. 105570, whereupon Plaintiff returned the $15,000.00 cash to the Bank of Lancaster. Thereafter Plaintiff Faulkner filed this suit in the case at bar against Defendant Hillside Bank and Trust Co. for negligence. It was undisputed that the endorsement of “B. W. Boyer” on the cashier’s check was a forgery.

As above stated, after both sides closed, Defendant Bank moved for an instructed verdict, which was granted by the trial court. From the take-nothing judgment against Plaintiff entered by the trial court, Plaintiff appeals.

We believe the record before us raises fact issues concerning: (1) whether or not Defendant Bank was guilty of negligence in its failure to inform Plaintiff that the cashier’s check was a lost instrument; and (2) whether or not Defendant’s negligence, if any, was a proximate cause of Plaintiff’s damages.

Defendant Bank placed the cashier’s check in question into commercial circulation, in the furtherance of its business interests. When the Defendant Bank learned that the cashier’s check was lost, it took an affidavit from Boyar and an indemnity bond to protect itself from any loss resulting from the lost cashier’s check, and marked its records accordingly.

Did the Defendant Bank owe a duty to tell a good-faith inquirer about the above facts? If it did not, then there is no fact issue of negligence presented. If it did, then Defendant Bank negligently failed to divulge very material facts to Plaintiff’s agent, a good-faith inquirer, to wit, that the cashier’s check inquired about was a lost instrument.

When Mrs. Strahlendorff made the inquiry on Monday morning of Defendant Bank, said Bank was in possession of knowledge in its files which had been there since the preceding Friday afternoon to the effect that the cashier’s check inquired about was a lost instrument. Had the Defendant Bank told Plaintiff’s agent the true facts within its knowledge, Plaintiff would have immediately been placed on notice that the party presenting the cashier’s check to him was either a thief or one who was otherwise passing the check to him without authority, and thereby Plaintiff would have been more likely spared the damage of parting with his drawings in exchange for the worthless cashier’s check. Moreover, the Defendant Bank was the only party in possession of these facts, and the only party in position to furnish this information sought by Plaintiff.

We believe the Defendant Bank was under a duty to tell a good-faith inquirer the true facts in its possession.

Assuming the Defendant Bank owed such a duty, then we believe a reasonably prudent bank could have reasonably foreseen that if it did not reveal the true facts concerning the cashier’s check to a good-faith inquirer, that the inquirer might reasonably suffer loss because the check was probably forged and the inquirer might accept it if told the cashier’s check was valid. For this reason we believe a fact issue is raised by the record concerning the question of whether Defendant’s negligence was a proximate cause of Plaintiff’s damage.

We recognize it is undisputed that the endorsement of B. W. Boyar on the cashier’s check in question was forged, and that therefore Defendant Bank would not be liable to pay the cashier’s check if it were presented to the Bank for payment. But this is not a suit brought upon the instrument itself; rather this is a suit based upon negligence of the Defendant Bank in not disclosing to a good-faith inquirer material facts concerning a lost instrument. By its failure to disclose these facts in its possession, the Bank could reasonably foresee what actually did happen; that is, that Plaintiff might be induced to accept a worthless, cashier’s check in return for his parting with property of value.

■ For these reasons we believe the instructed verdict was improper, and hereby reverse the trial court’s judgment and remand the cause to the trial court .for trial on the merits.

Reversed and remanded.