author: GUITTARD, Justice.

text:
    ESTATE of Jackie White EBERLING et al., Appellants, v. J. Roll FAIR et al., Appellees.
    No. 19037.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 13, 1976.
    Rehearing Denied Jan. 27, 1977.

      John R. Feather, Feather & Kessler, Dallas, for appellant.
    Gordon H. Rowe, Jr., Gardere, Porter & DeHay, Dallas, for appellee.
   GUITTARD, Justice.

This suit began as an action to establish an undivided interest in 177 acres of land and for partition. Before trial, counsel for all parties attempted to settle the controversy and to that end exchanged four letters. Defendants, however, refused to recognize the letters as a binding settlement. Plaintiffs then amended their petition, alleged that the four letters constituted a binding agreement, and prayed for a declaration of rights. Plaintiffs also filed a motion for partial summary judgment, which the trial court granted, reserving for jury trial issues concerning the effect of one aspect of the agreement. After trial and verdict on these issues, the court rendered judgment for plaintiffs enforcing the agreement as interpreted by the verdict. Defendants appeal. We hold that the four letters do not constitute a binding contract because essential terms are not agreed on, and for like reasons, we hold that they are unenforceable as a memorandum in writing to satisfy the Statute of Frauds, Tex.Bus. & Comm.Code Ann. § 26.01(b)(4) (Vernon 1968).

The four letters are as follows, with our captions and emphasis added:

(1) Defendants to Plaintiffs, April 22,1974
In order to settle the captioned litigation, I am authorized to commit to the ownership of a total of an undivided %th interest by your clients, J. Roll Fair and Roy R. Fair, Jr., in the real estate which is the subject of the captioned litigation, if they will exercise one of the following options in writing within the period of fifteen (15) days following the date of this letter:
1. J. Roll Fair and Roy R. Fair, Jr., together, may specify a dollar value per acre for the subject land and my client will have the option to either buy the ¾ th interest from or sell the 7/⅞⅛ interest to your clients at the dollar value specified, OR
2. Your clients may elect to buy the V»th interest or sell the 2Mh interest and my client will specify the dollar value at which they will buy or sell.
In either instance the party setting the value per acre will be firmly obligated to buy from or sell to the other party depending upon the election of the other party at the elected value.
Please let me have your clients’ election or a response declining this offer at your earliest convenience.
(2) Plaintiffs to Defendants, May 6,1974
I am writing on behalf of my clients, the two plaintiffs in the above styled matter pending in the 95th District Court, Roy R. Fair, Jr., and J. Roll Fair, to accept on their behalf the second option proposed by you in your letter dated April 22, 1974.
Your letter of that date listed two options for settling the above styled litigation in full. The second option in your letter is as follows:
2. Your clients may elect to buy the 7/¾⅛ interest or sell the ¾⅛ interest and my client will specify the dollar value at which they will buy or sell.
It is this option which my clients are accepting as to the land in litigation, that being 177 acres in Dallas County, Texas, near Seagoville, which property is described in full in Plaintiffs’ First Amended Petition on file and which is also described in Exhibit A attached to this letter of acceptance.
With the acceptance by my clients, your client will now specify the dollar value of the 177 acre tract and my clients will then have the option of either buying out your client’s interest for an amount of money equal to 7/⅞⅛ of the total value of the property as set by your client, or to sell their interest to your client for an amount of money equal to ⅜ th of the total value of the property as set by your client.
EXHIBIT A
(Description by metes and bounds.)
(3) Defendant to Plaintiffs, July 17,1974
On behalf of my client in the captioned matter, pursuant to the procedures instituted by my letter to you of April 22, 1974, I will place a value on the subject tract of $750.00 per acre.
Your letter to me of May 6, 1974, described the land as 177 acres. This area should be reduced by a sufficient area to accommodate the house which is situated partially on the subject tract.
In order to complete the contemplated transaction, please have your clients make their election to buy or sell within twenty (20) days from the date of this letter and advise me in writing of their election.
Within fifteen (15) days from the date of your advice to me mentioned in the preceding paragraph, we will close this transaction by the seller executing a special warranty deed conveying to the purchaser the appropriate interest under our arrangement and the purchaser shall pay to the seller, in cash or certified funds, the appropriate purchase price calculated by using $750.00 per acre times the total area (less the portion agreed upon to accommodate the house) times the appropriate fraction (%ths or Vrths as the case may be).
When the conveyance and payment of the purchase price described in the preceding paragraph are completed, the pending litigation should be dismissed with prejudice as to all parties.
(4) Plaintiffs to Defendants, August 1,1974
Reference is made to your letter of July 17, 1974, wherein a value on the tract of land involved in the above styled and numbered suit was set by your client at $750 per acre.
Within the time provided by the terms of that letter this is to advise that my clients, the plaintiffs, elect to buy the property at the $750 per acre price.
In your letter of July 17, 1974, you refer for the first time to a reduction of the 177 acres ‘ * * * by a sufficient area to accommodate the house which is situated partially on the subject tract.’
In order to give recognition to the %ths interest owned by the plaintiffs in the full 177 acres and at the same time ‘accommodate the house’ owned by the defendants, the plaintiffs should receive ⅜ ths of $750 times the numbers of acres agreed upon to ‘accommodate the house.’ Thereafter, that number of acres shall be subtracted from the 177 total acres and the resulting figure multiplied by $750 per acre times 7/9ths. I am sure this is what you meant in your letter when you said ‘accommodate’ since it would be the only reasonable and fair way in which to set aside part of the total acreage for the house.
I have tried to reach you by telephone in order to discuss with you the amount of land necessary ‘to accommodate the house’ but have not been successful in reaching you as of the time of the writing of this letter. Upon receipt of the letter please call me so that we can discuss this and a survey of the appropriate strip in order for a title policy to be given the purchasers in conjunction with the special warranty deed.
Please provide me with the name of the grantor so that I can begin preparation of the deed.
I would also like to discuss with you the closing of the transaction as referred to in your letter of July 17, 1974, both as to time and to place.
Immediately upon the closing I will cause the above styled and numbered suit to be dismissed with prejudice.

The problem arises from the second paragraph of the third letter, in which, for the first time, defendants propose that the land specified in the previous letter should be “reduced by a sufficient area to accommodate the house.” The evidence shows that the house in question was located partly on the 177-acre tract and partly on other land owned by defendants and not involved in the suit. Although plaintiffs agreed in the fourth letter that an exception should be made for this purpose, the parties have never come to an agreement concerning the exact area or location of the land to be excepted.

The trial court attempted to resolve this matter by granting a partial summary judgment declaring the contract binding and submitting to the jury special issues to determine the size and location of “a sufficient area to accommodate the house.” These issues and the jury’s answers are as follows:

Special Issue No. 1: Find from a preponderance of the evidence the size or dimensions of that portion of the 177 acre tract sufficient to reasonably accommodate that portion of the house in question which is situated on said tract:
You are instructed that your answer shall be any one of the following:
(1) The area shaded in pencil on plaintiff’s Exhibit No. 37;
(2) The area outlined in red on defendants’ Exhibit No. 3;
(3) The fenced area now situated around said house;
(4) The number of feet projected at right angles from the foundation of the house on the front, back and side. Let the form of your answer be either
(1), (2), (3), or (4).
Answer: (4)
If you have answered (4), then state the distance in feet from the foundation of the house on the following sides:
Front: 1,391 feet
Back: 200 feet
Side: 200 feet.

Based on this verdict, judgment was rendered declaring the contract to be binding and further declaring:

[Tjhat the portion of the 177 acre tract sufficient to reasonably accommodate that portion of the house in question which is partially situated on said tract of 177 acres is so much of said tract of 177 acres that is included in a rectangle described as and being of the following dimensions: 200 feet projected at a right angle from the foundation of the house on the back, 200 feet projected at a right angle from the foundation of the house on the side, and 1391 feet projected at a right angle from the foundation of the house on the front.

Defendants contend on this appeal that the judgment is erroneous because the contract was not complete in its essential terms and that the omission was not cured by leaving to the jury the definition of “a sufficient area to accommodate the house.” We agree.

Plaintiffs argue that to be enforceable the contract need only be reasonably certain and that a fair reading of the letters shows that the parties agreed to a reduction from the original 177-acre tract within meaningful and legally enforceable limits, which the jury merely interpreted and applied. We cannot accept this theory. In our view, the contract does not have the requisite certainty, either as a matter of contract law or as a matter of the sufficiency of the writing to satisfy the Statute of Frauds. Under contract law, a contract, whether written or oral, must define its essential terms with sufficient precision to enable the court to determine the obligations of the parties. Bryant v. Clark, 163 Tex. 596, 358 S.W.2d 614, 616 (1962); Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940, 941 (1944).

This principle was applied to a land identification problem in National Resort Communities, Inc. v. Cain, 526 S.W.2d 510, 514 (Tex.1975) in which a contract concerning the sale of lake lots was held not subject to equitable reformation because the lots were not sufficiently identified by the oral agreement. Likewise, in Smith v. Griffin, 131 Tex. 509, 116 S.W.2d 1064 (1938), an oral agreement alleged to be outside the Statute of Frauds because of part performance was held to be insufficient to identify the land because, although the agreement described the land as two acres in rectangular form and specified the beginning corner and two of the boundaries, an indefinite number of rectangular tracts containing two acres could have been constructed in accordance with the agreement. In the present case, the description of the excepted tract is even more indefinite, since not even the area is specified. Determination of “a sufficient area to accommodate the house” may vary indefinitely according to the subjective judgment of the person making the determination, as may also the boundaries of the excepted tract. These possible variations are exemplified by the differing positions of the parties at the trial, as well as by the alternatives submitted to the jury, all of which were consistent with the language of the agreement.

Moreover, the language of the letters suggests that the parties did not regard the expression “a sufficient area to accommodate the house” as adequately identifying the excepted tract. In the fourth letter plaintiffs’ counsel requests that defendants’ counsel contact him to discuss the amount of land to be excepted and also a survey of the excepted tract. Thus it is clear that further negotiations were contemplated but that these negotiations were not successful in producing an agreement concerning the identity of the land to be excepted. It is well settled that courts cannot make contracts for the parties and that an agreement to enter into negotiations in the future cannot be enforced because the court has no means to determine what sort of contract the negotiations would have produced. Radford v. McNeny, 129 Tex. 568, 104 S.W.2d 472, 474 (1937); Miller v. Vaughn & Taylor Construction Co., 345 S.W.2d 852 (Tex.Civ.App. — Fort Worth 1961, writ ref’d n. r. e.). Likewise, although courts are reluctant to hold a contract void for uncertainty, they have no authority to interpolate terms of material consequence in order to uphold it. Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699, 701 (1951). Consequently, in this case, the trial court had no authority to ask the jury to supply an essential term in the contract, which the parties were unable to complete by mutual agreement.

The same result follows if the letters are considered from the standpoint of a written agreement or memorandum under the Statute of Frauds, Tex.Bus. & Comm. Code Ann. § 26.01(b)(4) (Vernon 1968). The test of sufficiency under the statute is whether the writing furnishes within itself or by reference to some other existing writing the means or data by which the particular land to be conveyed may be identified with reasonable certainty. Resort cannot be had to extrinsic evidence for the purpose of supplying the location or description of the land, but may be had only for the purpose of identifying it with reasonable certainty from the data in the memorandum. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945). By this standard, extrinsic evidence would not have been proper to show an oral agreement identifying the excepted tract, and certainly no such evidence was proper for the purpose of enabling the jury to determine for the parties what they failed to determine for themselves by agreement. Our analysis of the uncertainty of the contract with respect to the size and location of the “area sufficient to accommodate the house” is applicable also to the matter of sufficiency of the written description under the Statute of Frauds.

Plaintiffs contend further that the agreement should be enforced as an oral partition, which may be considered as not within the Statute of Frauds on the theory that a partition is not a conveyance of land but merely a division of previously undivided interests. See Aycock v. Kimbrough, 71 Tex. 330, 12 S.W. 71, 72 (1887). This argument is untenable because, as we have already held, even apart from the Statute of Frauds, the four letters do not contain the essential elements of a binding contract, and plaintiffs do not allege an oral agreement sufficiently identifying the land. Moreover, the agreement contained in the letters, as interpreted by the trial court, constitutes more than a partition. It does not purport merely to divide the 177-acre tract between the parties in accordance with their previously undivided interests. It purports to be an executory contract whereby plaintiffs agree to “buy” and defendants agree to “sell,” for a stated consideration in money, all of defendants’ interest in the entire 177-acre tract, except an insufficiently defined area around the house. Clearly, this is a “contract for the sale of real estate” within the Statute of Frauds, Tex.Bus. & Comm.Code Ann. § 26.01(b)(4) (Vernon 1968), and in the absence of a proper written description of the excepted tract or written data which, if applied to the land, would identify the excepted tract with reasonable certainty, the agreement cannot be judicially enforced.

We recognize that in the cases cited by plaintiffs, the theory of oral partition has been applied to situations in which the co-tenants owned both land and personal property and, by agreement, all of the land was allotted to one or more of the cotenants. See Houston Oil Co. v. Kirkindall, 136 Tex. 103, 145 S.W.2d 1074, 1077 (1941); Murrell v. Mandlebaum, 85 Tex. 22, 19 S.W. 880, 882 (1892). These cases, and the theory of oral partition as well, have been criticized on the ground that the cotenant actually receives additional title to the segregated tract and also the exclusive right of possession, which he did not have before. Comment, Misconceptions of Parol Partitions in Texas in Light of Statute of Frauds Requirements, 23 Baylor L.Rev. 75, 78, 95 (1971). The supreme court has not gone so far, however, as to apply the theory of oral partition to a situation in which one cotenant has simply bought the interest of the other by paying his own individual funds. Thus, in Zanderson v. Sullivan, 91 Tex. 499, 502, 44 S.W. 484, 485 (1898), where two adjoining lots were owned in common but one was more valuable because of its corner location, an oral agreement for one cotenant to take the corner lot and pay $1,000 for the difference in value was held to be a contract of sale within the Statute of Frauds.

Plaintiffs concede that the transaction contemplated by the letters was a sale of land insofar as it involved the conveyance, for a monetary consideration, of an undivided seven-ninths interest, but they assert that since the entire 177-acre tract is sufficiently described in the letters, segregation of the excepted area from the land to be conveyed was a “partition,” which is not required to be in writing. This argument is untenable because the uncertainty in the size and location of the area to be excepted leaves uncertain the area to be conveyed. The letters do not provide for conveyance of the entire 177 acres less a defined undivided interest that may subsequently be located and partitioned. Since the interest to be excepted is insufficiently described, so also is the interest to be conveyed. Consequently, under general principles of contract law, as well as the Statute of Frauds, the agreement cannot be enforced.

Our holding on this point is supported by Stekoll Petroleum Co. v. Hamilton, 152 Tex. 182, 255 S.W.2d 187, 192 (1953), which concerned an option to acquire mineral leases on 4,000 acres out of a certain 5,000-acre block. The contract provided that the buyer might select the 4,000 acres, “leaving Seller 1,000 acres equitably checker-boarded in a fashion similar to the checker-boarding in the first block above identified.” The supreme court held that this language left indefinite and uncertain the land to be reserved to the seller, and also, consequently, the land to be acquired by the buyer. Likewise, in Perry v. Connelly, 462 S.W.2d 383 (Tex.Civ.App. — Beaumont 1971, writ ref’d n. r. e.), a lease of a building and an adjoining parking area was held too indefinite for enforcement because of reservation by lessor of the right “to cut off a portion of the northwest corner of the building for ingress and egress to the north side of the building.” The reservation in the present case of “a sufficient area to accommodate the house” is no ihore definite than the reservations in these two cases.

On oral argument plaintiffs raised the contention, which we do not find in their brief, that the first two letters establish a binding contract because the second letter was an unqualified acceptance of the first, and that if the subsequent modification with respect to the land around the house fails because of lack of identification of the excepted tract, the original contract is evidenced by the first two letters is still enforceable. According to this theory, plaintiffs argue that only the exception fails for lack of a definite description and that the contract is otherwise enforceable. Thus, plaintiffs urge that defendants have no standing to complain of the court’s action in giving them the benefit of an exception, which, though poorly described, they would not be entitled to insist upon under their own original proposal accepted by plaintiffs.

We cannot accept this theory because plaintiffs did not attempt in their amended petition or in their motion for summary judgment to enforce the contract embodied in the first two letters alone. Whether plaintiffs would have been entitled to relief on this theory is a question we need not decide since it is not before us. The partial summary judgment rendered by the trial court was based on the ground, which we hold to be erroneous, that the four letters constituted a binding contract and that the uncertainty in defining the area excepted was a matter to be resolved by the jury. Since we conclude that the judgment based on that theory cannot stand, we reverse and remand for a new trial.

Reversed and remanded.

CLAUDE WILLIAMS, C. J., not sitting.

       Please advise me as to the length of time my clients will have to make their decision. If you think it reasonable, I would suggest 30 days.

      . But see Wardlow v. Miller, 69 Tex. 395, 399, 6 S.W. 292, 294 (1887), in which an oral partition was sustained on the ground that the Statute of Frauds does not prohibit a parol conveyance of an interest in real estate. This holding apparently ignores the statute of conveyances, the predecessor of Tex.Rev.Civ.Stat.Ann. art. 1288 (Vernon 1962).

      . In Murrell the land was a partnership asset, and the division between the partners may be sustained on the theory of equitable conversion. Comment, Misconceptions of Parol Partitions in Texas in Light of Statute of Frauds, Requirements, 23 Baylor L.Rev. 75, 77 (1971). The opinion indicates, however, that the supreme court was not content to rest its decision on that theory since it expressly invoked the doctrine of oral partition.

      . Plaintiffs cite Loston v. Loston, 424 S.W.2d 316 (Tex.Civ.App. — Houston [14th District] 1968, writ dism’d), in which the court enforced an oral agreement providing that a husband should pay to his wife on their divorce one-half of the appraised value of the homestead in settlement of her property rights. This case may be understood as a division of community assets rather than a sale, and thus as not extending the holdings in Kirkindall and Murrell, supra.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    NU-WAY OIL COMPANY et al., Appellants, v. Bob BULLOCK, Comptroller of Public Accounts, et al., Appellees.
    No. 12440.
    Court of Civil Appeals of Texas, Austin.
    Dec. 22, 1976.

      Johnnie B. Rogers, Rogers, Hughes & Herman, Austin, for appellants.
    John L. Hill, Atty. Gen., Martha E. Smiley, Asst. Atty. Gen., Austin, for appellees.
   O’QUINN, Justice.

By separate lawsuits filed in April and May of 1975 the three appellants sought to recover motor fuel taxes paid under protest in purported compliance with Article 1.05, Title 122A, Taxation-General, Vernon’s Anno.Civ.Sts.

The trial court consolidated the suits, and the cause was tried before the court without a jury in June of 1975. Subsequently, in December of 1975, the trial court entered judgment that appellants take nothing by their suit. The court reached the merits on the claims by McCormick and Sons Oil Company and Summers Oil Company, but as to Nu-Way Oil Company the court sustained the State’s plea to the jurisdiction that Nu-Way failed to file its written protest in conformity with the statute.

We will overrule all points of error and will in all things affirm judgment of the trial court.

Each of the appellants purchased motor fuel from refinery suppliers under certificates of authority the Comptroller issued under provisions of Article 9.05 (Title 122A, Taxation-General) to distributors and other entities permitted by the statute to sell, resell, or distribute “motor fuel, without collecting the tax levied.” The certificates authorized each distributor to purchase stated quantities of motor fuel tax free within the limitations set out in the certificates. It is uncontroverted that some of the gasoline purchased tax free by each appellant was sold in violation of the specific certificates.

The Comptroller conducted audits on each appellant company and thereafter assessed deficiencies based upon the difference between the gross gallons delivered into the storage tanks of retail dealers and the gallons metered out from the retail pumps, with allowance, however, for evaporation as required (one and one-half percent) by Article 9.02 of the motor fuel tax law.

Appellants contend that only the amount metered out of the retail pumps should be taxed. Appellants concede that meter readings often are inaccurate, or the meters are intermittently inoperative. Appellants admit selling motor fuel in violation of their respective certificates of authority, which renders such sales taxable under Article 9.05(2), but appellants insist they do not know how much motor fuel was sold improperly. Finally, appellants contend that the Comptroller has the burden to prove the amount of such sales subject to the tax.

The trial court filed findings of fact and conclusions of law. The trial court found that appellants disposed of fuel in a manner not authorized “within the limitations set out in the Certificates of Authority,” and that “some of the motor fuel purchased tax-free . . . was disposed of by them [appellants], upon which no tax was paid, was unaccounted for by . [appellants] at the end of the calendar months which were included in the audits.”

The court also concluded that the Comptroller’s Ruling No. 70-0.11, under which the Comptroller conducted the audits, “is not inconsistent with Chapter 9, Title 122A,” and “is not in violation of Article I, Section 19 of the Constitution of the State of Texas.” The court further concluded that “Ruling No. 70-0.11 does not exceed the rule-making power vested by Article 9.23, Chapter 9, Title 122A,” in the Comptroller.

The trial court’s findings of fact are supported by the record, and we approve the court’s conclusions of law as proper for affirmance.

Appellants bring eleven points of error, under which four principal issues are raised on appeal.

Appellants urge, under points six, seven, and eight, that the trial court erred in finding that some of the motor fuel was “unaccounted for,” and in support of their position appellants argue that the fuel either evaporated or leaked out and therefore was not unaccounted for in the usual sense. It is undisputed that the Comptroller made statutory allowance for fuel that might have evaporated.

It is settled that, insofar as other fuel not accounted for is concerned, the burden rests on the taxpayer, not on the Comptroller, to establish what became of the fuel unaccounted for. Article 9.05(2) of the motor fuel tax law directs that “Any motor fuel purchased tax-free which is unaccounted for . . . shall be prima facie presumed to have been sold or used for taxable purposes.” (Emphasis supplied). This Court held in Smith v. State, 418 S.W.2d 893, 896 (Tex.Civ.App. Austin 1967, no writ), that with the prima facie presumption established by the State’s assessment, the burden shifts to the taxpayer to overcome the presumption with such evidence, tending to support the contrary, as would be conclusive, or would be so clear and positive as to render it unreasonable not to give effect to the evidence as conclusive. Other decisions placing the burden of proof on the taxpayer include Big Country Club, Inc. v. Humphreys, 511 S.W.2d 315, 317 (Tex.Civ.App. Beaumont 1974, writ ref. n. r. e.); Baker v. Bullock, 529 S.W.2d 279, 281 (Tex.Civ.App. Austin 1975, writ ref. n. r. e.); Calvert v. Union Producing Company, 154 Tex. 479, 280 S.W.2d 241, 243 (1955).

Under their ninth point of error appellants urge that for any tax due on unauthorized sales by the holder of a certificate of authority the Comptroller should make collection from persons other than the certificate holder. It is undisputed that appellants made retail sales of unknown quantities of fuel in obvious violation of their certificates. The motor fuel tax statute requires that the holder of a certificate of authority “. . . shall collect and pay over ... a tax . . . upon the first sale or distribution of said motor fuel made thereafter for any purpose other than a tax-free sale authorized by the Comptroller, and shall pay said tax . . . upon each gallon of motor fuel used or unaccounted for by said distributor . . .” Art. 9.05(2). As already noted, the statute continues with the further requirement that “Any motor fuel purchased tax-free which is unaccounted for at the end of each calendar month shall be prima facie presumed to have been sold or used for taxable purposes.” (All emphasis supplied).

The statute plainly places the tax burden on the holder of the certificate who makes sales of fuel not authorized, as well as upon fuel not accounted for. The Comptroller may rely on a prima facie presumption that all sales are taxable, and the distributor must produce evidence to overcome the presumption. No such evidence was introduced by appellants, who conceded by their testimony that they did not know how much fuel was sold in violation of the certificates. The point of error is overruled.

Appellants’ attack on the Comptroller’s audit and assessment, pursuant to authority of Rule “711” (Ruling No. 70-0.11) falls under points of error one through five. Appellants insist that the Rule exceeds the Comptroller’s rule-making power granted by Article 9.23 and that it is inconsistent with Chapter 9, Title 122A.

The main argument appears to be that the Comptroller’s ruling improperly seeks to change from a “first sale” to a “delivery tax” the mode of collecting the motor fuel tax. In support of this view appellants point to amendment in 1971 of the article prescribing the rate of tax and providing allowance for handling and evaporation of motor fuels. Art. 9.02(2); Acts 1971, 62nd Leg., p. 2031, ch. 626, sec. 3, effective August 30, 1971.

Appellants contend that by the amendment the Legislature adopted the “delivery” method of computing the “first sale” tax, as previously provided in Ruling 70-0.-11, and that taxes sought to be assessed by the Comptroller prior to the effective date of the amendment may not be collected under authority of the Rule. “It seems obvious,” appellants argue, “that if the Comptroller had the lawful authority to promulgate Ruling 70-0.11, there was no need for the legislature to amend the law in 1971.”

Appellants’ contentions are not sustainable for several reasons. First, the Comptroller used Rule “711” as an auditing procedure to measure the quantity of gasoline sold by looking at the quantity delivered, less the statutory allowance for evaporation. Appellants would have the Comptroller audit solely upon the basis of meter readings which appellants admitted at trial were inaccurate and the meters not consistently operative. Second, it is undisputed that appellants made retail sales of some of the fuel in violation of the certificates of authority. Appellants did not keep records of these sales. Under Article 9.05(2) “. any motor fuel purchased tax-free which is unaccounted for . shall be prima facie presumed to have been sold or used for taxable purposes.” (Emphasis added).

Third, the legislative amendment in 1971 did not change the definition of “first sale.” The amendment to Article 9.02 merely increased the percentage allowance for evaporation and provided minor changes not germane to this issue. The amendment made no change in the definition of “first sale” and added language stating:

“. . . and it is expressly provided that the tax shall be computed and paid or collected and paid over to the State on the gross or volumetric gallons of taxable motor fuel sold or distributed to such wholesalers or jobbers, dealers or bulk users, as shown by the Comptroller’s measurement certificate issued for the vehicle tank making such deliveries, or as shown by any other measuring device approved by the Comptroller.” (Emphasis supplied). (Article 9.02(2) as amended 1971).

The amendatory statute recognizes the necessity for flexible auditing procedures by the Comptroller. The amendment indeed does not change the law to a “delivery” tax. The Comptroller’s authority to promulgate rules to enforce the tax laws derives from the express provisions of Article 9.19, enacted in 1959, and rule-making power and procedures for promulgation are further expressed in Article 9.23, enacted in 1959 and amended in 1967.

The trial court found that appellants disposed of fuel in a manner not authorized under the certificates of authority and concluded that the Comptroller’s Ruling 70-0.-11 is not inconsistent with Chapter 9, Title 122A, nor with Article I, section 19, of the Constitution of Texas; and, further, that the Rule is not beyond the rule-making power vested in the Comptroller by Article 9.23. The trial court’s findings of facts are supported by the record, and the court’s conclusions of law we find correct and approve them.

Finally, under points ten and eleven, appellants claim error in the trial court’s finding that it was without jurisdiction to hear and dispose of suit by Nu-Way Oil Company for tax refund, for the reason that Nu-Way had failed to file its written protest in conformity with Article 1.05, Title 122A, Taxation-General. The record shows that Nu-Way paid the tax by check which bore a notation of “paid under protest.” Eighty-six days later Nu-Way sent a written protest, and suit was thereafter filed within the ninety days allowed by statute.

Article 1.05 authorizes payment under protest of certain taxes, including motor fuel taxes, by any taxpayer “. . who believes or contends that the same is unlawful and that such public official is not lawfully entitled to demand or collect the same . ” and further provides that the taxpayer “. . . shall be entitled to accompany such payment with a written protest, setting out fully and in detail each and every ground or reason why it is contended that such demand is unlawful or unauthorized.” (Emphasis added). Article 1.05(1). The statute also provides, “Upon the payment of such taxes . . . accompanied by such written protest, the taxpayer shall have ninety (90) days from said date within which to file suit . . . ” and limits the issues on trial only to the issues arising out of the grounds or reasons set forth in such written protest as originally filed.” (Emphasis added). Article 1.05(2).

In construing Article 7057b, sec. 1, V.A. C.S., the antecedent statute of Article 1.05, this Court in 1946 stated the purposes of the protest statute. In James v. Consolidated Steel Corp., 195 S.W.2d 955, 962 (Tex.Civ.App. Austin 1946, writ ref. n.r.e.), it was said:

“The purpose of such protest statute was twofold: 1. To require the taxpayer to inform the collecting agency the grounds or reasons for such protest with sufficient clarity and detail for the agency to determine from its own records and the information furnished the merits and validity of the protest; and 2. To prevent the taxpayer, after he files suit, from changing to or asserting upon the trial other or different grounds from those stated in his protest. In other words, to prevent him after making his protest from subsequently taking advantage of the collecting agency upon such trial by ‘changing horses’, so to speak, and having adjudicated grounds or reasons which the agency had not theretofore been called upon or had opportunity to determine. The reasons for such a requirement are obvious. The provisions of Sec. 2 of Art. 7057b confining the trial to ‘The issues * * * arising out of the grounds or reasons set forth in such written protest as originally filed’ is one of limitation, and does not enlarge the provisions of Sec. 1, relating to the grounds or reasons for such protest.”

It is plain that the essential purpose of a written protest, timely filed and accompanying payment, is to give the agency, in this case the Comptroller, opportunity to review the reasons given for the protest and, if protest is rejected, to defend suit by the taxpayer upon the issues raised in the written protest. Payment of the taxes, “accompanied by such written protest,” is requisite on the part of the taxpayer to provide basis for later suit. To accompany payment, the written protest must “go along with, or to accompany each other, and should, as nearly as possible, be simultaneous.” Securities Credit Corp. v. Pindell, 153 Neb. 298, 44 N.W.2d 501, 507 (1950). Black’s Law Dictionary, Rev. 4th ed. (1968) defines “accompany” as “to go along with . To go with or attend as a companion or associate, to occur in association with.” Citing U. S. v. Lee, 7 Cir., 131 F.2d 464, 466 (1942).

Postponement of filing the written protest for eighty-six days after payment of the tax does not comport with protest in writing accompanying payment, as required by statute. We sustain the action of the trial court and overrule the points of error attacking this action.

Judgment of the trial court is in all things affirmed.

Affirmed.

      . Appellants are McCormick and Sons Oil Company, Inc., Summers Oil Company, and Nu-Way Oil Company; defendants in conformance with statutory requirements, are the Comptroller of Public Accounts, the Attorney General and the Treasurer of the State of Texas, in this opinion designated the State or the Comptroller.


author: AKIN, Justice.

text:
    George PIPER, Appellant, v. ESTATE of Hubert THOMPSON and Maudie Thompson, Appellees.
    No. 19070.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 22, 1976.

      William A. Barber, Jr., Dallas, for appellant.
    James K. Peden, III, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appel-lees.
   AKIN, Justice.

This is a suit by appellant-plaintiff, George Piper, against Hubert Thompson for personal injuries and property damages arising out of an automobile collision. Pri- or to service of citation, Mr. Thompson died. Plaintiff amended, naming as defendants the surviving widow, Maudie Thompson, and the “Estate of Hubert Thompson.” The defendants filed a plea designated a “plea in bar” alleging that Mrs. Maudie Thompson was not personally liable for the tort damages and that an “estate” of a decedent is not a legal entity amenable to sue or to be sued. Without hearing evidence, the trial court dismissed the cause, and plaintiff appeals. Because we hold that a trial court is not justified in sustaining a plea dismissing a cause without hearing evidence on the plea and because we also hold that plaintiff has alleged facts sufficient to sustain an action against the widow, we reverse and remand.

Although designated a “plea in bar,” the plea in question is not a proper plea in bar because it goes to a defect in parties rather than to plaintiff’s right to recover. It is, rather, a plea in abatement since it pertains to the capacity in which the defendants are sued. See Hughes v. Atlantic Refining Co., 424 S.W.2d 622, 625 (Tex.1968). A plea in abatement is a plea setting forth some obstacle to the further prosecution of the cause until it is removed, and if it is sustained, the proper action is to abate the cause until the impediment is removed. Life Ass’n of America v. Goode, 71 Tex. 90, 8 S.W. 639, 640. A plea in bar goes to the plaintiff’s right to recover and, if sustained, requires a take-nothing judgment finally disposing of the controversy in favor of the defendant. Kelley v. Bluff Creek Oil Company, 158 Tex. 180, 309 S.W.2d 208, 214. If the plea is considered as a plea in bar, it could not properly be sustained at a preliminary hearing unless the parties agreed to this procedure or unless the summary judgment procedure was utilized. Id. The proceeding in this case cannot be treated as equivalent to a hearing on summary judgment, as urged by appel-lees, because the opposing party was not given such notice of the nature of the hearing as would have required him to respond with his opposing summary-judgment proof under Tex.R.Civ.P. 166-A. Liberty Mutual Insurance Co. v. City of Fort Worth, 524 S.W.2d 743, 746 (Tex.Civ.App. — Fort Worth 1975, writ dism’d). Consequently, the trial court’s order could not be justified as a final disposition of the action even if a proper plea in bar had been before it.

Neither can the order be justified by treating the plea as a plea in abatement, even though a plea in abatement may be disposed of at a preliminary hearing. The plea may be treated as one in abatement despite the misnomer of the plea as one in bar. The misnomer is not controlling; the court can look to the substance of the plea and treat it accordingly. Tex.R.Civ.P. 71; Texas Highway Department v. Jarrell, 418 S.W.2d 486, 488 (Tex.1967). In order for a trial court to properly sustain a plea in abatement, it is incumbent upon the party asserting the plea to establish by a preponderance of the evidence the grounds alleged, unless they are established as a matter of law by plaintiff’s petition. Oak Lawn Preservation Society v. Board of Managers of Dallas County Hospital District, 539 S.W.2d 167, 169 (Tex.Civ.App.— Dallas 1976, no writ).

Appellees argue that since Tex. Prob.Code Ann. § 178 (Vernon 1956) requires the administration of an estate if two or more debts of the decedent exist, appellant cannot maintain this action unless there is an administration of Mr. Thompson’s estate because suit may be maintained directly against the heirs of a decedent only if no administration is required. See Perkins v. Cain’s Coffee Co., 466 S.W.2d 801, 802 (Tex.Civ.App. — Corpus Christi 1971, no writ). Thus, the administrator, not the heirs, would be the proper party, and abatement of the suit would be proper until an administrator qualifies and is joined as a defendant. In support of this contention, appellees assert that Mrs. Thompson’s sworn answers to requests for admissions show that at least two debts exist because these answers state that the expenses of Mr. Thompson’s last illness and funeral remain unpaid and this, coupled with plaintiff’s claim, constitute two debts. We cannot agree that these answers support the plea because answers to requests for admissions are not competent proof in favor of the party making the answers. Sprouse v. Texas Employers Insurance Association, 459 S.W.2d 216, 220 (Tex.Civ.App. — Beaumont 1970, writ ref’d n. r. e.). They may be used only against the party making them. The same rule is applicable to appellees’ argument that they have established the existence of heirs who were not joined because this contention is likewise supported only by Mrs. Thompson’s answers to requests for admissions. Consequently, dismissal of the action cannot be upheld on this ground.

Absent competent evidence, the plea in abatement may be sustained only if grounds for abatement appear on the face of plaintiff’s petition. Oak Lawn Preservation Society, supra. We agree with appel-lees that an action against the “estate” of Hubert Thompson as such cannot be maintained because it is not a legal entity. Ordinarily, a suit seeking to establish the decedent’s liability should be brought against the executor or administrator of the estate or, under appropriate circumstances, against all of the heirs or beneficiaries. Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex.1975). Plaintiff’s amended petition is insufficient on its face to fall within the exception because it does not allege that all of the heirs are named; consequently, the action against the “estate” cannot be maintained as a suit against the heirs. Accordingly, we remand to the trial court with directions to abate the action against the “estate” for a reasonable time to allow plaintiff to amend by setting forth the heirs as such or by naming the appropriate legal representative of the estate as a defendant. If amendment is not made within a reasonable time, defendants may move to dismiss the action against the heirs.

In view of our decision to remand, we address appellees’ contention that the petition, on its face, shows that two debts against the estate exist because the claim for personal injuries and property damage constitutes two distinct debts and that an administration of the estate of Mr. Thompson is, therefore, required by Tex.Prob.Code Ann. § 178 (Vernon 1956). In support of this argument, appellees rely on Davis v. Cayton, 214 S.W.2d 801, 804 (Tex.Civ.App. —Amarillo 1948, no writ), for the proposition that the claims for property damage and personal injuries suffered by Piper in the accident are two debts. In that case, suit was brought attacking the necessity of appointing an administrator. The court held that personal injuries suffered by a husband and wife and damage to their automobile-constituted three separate causes of action and that each was a separate debt of the estate. The court’s decision was based upon the theory that each cause of action could be maintained independently of the other and that judgment in one would not bar recovery in the others. Davis, supra at 804. We regard this decision as sound insofar as separate causes of action existed on behalf of each of the two plaintiffs, but we do not accept its dictum that a judgment in a personal injury action does not bar a subsequent suit by the same party for property damage arising from the same occurrence. On this point we prefer to follow Traders & General Insurance Co. v. Richardson, 387 S.W.2d 478, 479 (Tex.Civ. App. — Beaumont 1965, writ ref’d), in which the Beaumont court held that personal injuries and damage to an automobile arising out of one accident constitute but one cause of action when the party who was injured was also the owner of the damaged vehicle. As in Traders, Piper suffered personal injuries and sustained damage to his vehicle as a result of the collision. Since these claims could not be maintained as separate causes of action, we conclude that they constitute but one debt under § 178. Cf. Cook v. Baker, 45 S.W.2d 161, 166 (Tex.Comm’s. App.1932, holding approved) (holding that an action for services rendered to the decedent and also for a loan to the decedent was only one debt of the estate.) We perceive no valid policy which dictates a construction of § 178 that would require administration simply because one individual has one cause of action against the estate that consists of multiple elements of damage. Section 178 is intended to prevent one creditor from prejudicing the rights of other creditors by maintaining an action against the decedent’s heirs that may be detrimental to the rights of other creditors. Furthermore, under our interpretation, the heirs of the decedent would have to defend but one suit and would not have to undertake the expenses that may be attendant upon an administration. Consequently, we hold that Piper’s cause of action for personal injury and property damage is but one debt within the meaning of § 178.

With respect to the defendant Maudie Thompson, we conclude that Piper’s action may be maintained against her without showing that administration is not necessary and without alleging that she is the sole heir or joinder of any other heirs. Tex. Prob.Code Ann. § 160 (Vernon 1956) provides that where no executor or administrator of the decedent’s estate has qualified, the surviving spouse may be sued on a community obligation. Tex.Fam.Code Ann. § 5.61(d) (Vernon 1975) makes the community liable for torts committed by either spouse during marriage, and where the plaintiff limits the recovery sought to community property, the surviving spouse is the only party necessary. See Latham v. Estate of Mosley, 351 S.W.2d 123, 124-25 (Tex.Civ.App. — Beaumont 1961, writ dism’d); Camellia Diced Cream Co. v. Chance, 339 S.W.2d 558, 560 (Tex.Civ.App. —Houston 1960, no writ). In Piper’s petition, he specifically limits the recovery sought to the proceeds of a motor vehicle liability insurance policy. Although no allegation is made that this policy is community property, it is presumably community in view of Tex.Fam.Code Ann. § 5.02 (Vernon 1975), which provides that all property possessed by either spouse during marriage is presumed to be community. Consequently, the trial court erred in dismissing the action as against her.

Reversed and remanded.

ROBERTSON, J., not sitting.


author: REYNOLDS, Justice.

text:
    H. S. TENNELL, Appellant, v. ESTEVE COTTON COMPANY, Appellee.
    No. 8695.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 28, 1976.
    Rehearing Denied Jan. 24, 1977.

      Brock, Waters & Galey, Charles E. Galey, Lubbock, for appellant.
    Grady, Johnson, Smith & Blakeley, Thomas A. Blakeley, Jr., Dallas, for appellee.
   REYNOLDS, Justice.

A cotton merchandising company brought this suit to recover from a cotton grower the difference between the market price and the contract price of undelivered cotton. The trial court, calculating the contract price in lieu of the disregarded jury finding thereof, rendered judgment on the balance of the verdict, decreeing that the cotton company recover the market-contract price differential for the undelivered pounds of the greatest number of bales the jury found would not be unreasonably disproportionate to the number estimated to be delivered under the contract. Reformed to provide for recovery on the entire production contracted and for statutory interest and, as reformed, affirmed.

By written contract of 5 April 1973, H. S. Tennell, as seller, and C. Young, as buyer and commission agent for Gant Cooley Cotton Co., Inc., provided for the purchase and sale of Tennell’s “entire production of lint cotton for the 1973-74 cotton harvesting season from” 120 acres of Farm No. D-30 in Hale County, Texas, estimated to be 100 bales. On 20 April 1973, Gant Cooley assigned to appellee Esteve Cotton Company, a Dallas-based cotton merchandising company engaged in selling cotton to be produced in the future to cotton mills, the contract, which was prepared on a typewritten form with spaces for completion and contains the following information reproduced verbatim:

PURCHASE AND ALES AGREEMENT

Gant Cooley prepared the form and supplied it to Young, who completed the spaces in handwriting. Farm identification, acreage and estimated production information was supplied by Tennell, and the data entered in paragraph (4) was copied from information supplied daily by Gant Cooley.

The paragraph (4) column heading “Mike” is an abbreviation for the term “mi-cronaire.” Micronaire is a qualitative measurement of the coarseness or fineness of the cotton fiber; the coarser the fiber, the higher is its micronaire. The most desirable upland cotton is that within the premium micronaire range of 3.5 through 4.9 inclusive. Cotton within this range, the one on the official United States Department of Agriculture government loan value scale to which no discounts apply, generally brings the same price, while cotton either above or below the premium micronaire range brings a slightly lower price.

In the same paragraph, the columns labeled “Pts. over” refer to the amount in excess of the official USD A government loan value of the cotton to be paid for cotton purchased under the contract. Each one hundred points equals one cent per pound; thus, cotton with a micronaire reading of 3.5 commands a price under the contract of eleven hundred points, or eleven cents per pound, over the loan value of the cotton. The loan value is determined from the price fixed by the USD A for the various grades and staples of cotton after subtracting the discount, if any, for the micronaire quality of the cotton.

At the time the contract was executed on 5 April 1973, the parties did not know, and it was impossible to ascertain, either the micronaire quality of the cotton to be later produced by Tennell or the loan value. The coarseness of the cotton fiber depends upon weather conditions which, in West Texas, vary yearly, and the USD A official publication of loan values was not released, according to this record, until 17 May 1973.

At harvest time, the market price for 3.5 micronaire cotton was approximately twice the contract price. Tennell produced from the designated farm 175 bales of cotton, each having a micronaire measurement in excess of 3.5. After delivering 49 bales and receiving the contract price shown for 3.5 micronaire cotton, Tennell refused to deliver any more cotton at that price.

Esteve then instituted this suit against Tennell. Esteve pleaded that the contract unambiguously covers all cotton produced by Tennell from the farm or, alternatively, that if the contract is ambiguous, it was the intention of the contracting parties to cover all cotton produced, with the price for 3.5 micronaire cotton applicable to cotton with a micronaire measurement in excess of 3.5. By its live trial pleadings, Esteve sought recovery for the difference between either its cost of cover or the market price at the time it learned Tennell would deliver no more cotton and the contract price for the produced but undelivered 126 bales of cotton. After specially excepting to Esteve’s pleadings and asserting defenses to the cause of action, Tennell joined the issue of the contract’s coverage, alleging that the contract did not include cotton produced with a micronaire measurement in excess of 3.5.

Taking evidence, which included the testimony of Tennell and Young of the circumstances surrounding the execution of the contract and their intent to exclude or include cotton in excess of 3.5 micronaire measurement, the trial court submitted special issues to a jury. Corresponding to the numbered submissions, the jury answered that:

(1) the parties mutually intended that the contract price for 3.5 mike cotton should apply to any cotton produced that would mike 3.5 or higher;
Both (2) the 49 bales of cotton delivered by Tennell and (4) the 175 bales produced by Tennell were unreasonably disproportionate to the stated estimate of 100 bales shown in the contract;
(3) 75 bales is the least number, and (5) 125 bales is the greatest number, of bales that would not be unreasonably disproportionate to the stated estimate of 100 bales shown in the contract;
(6) the parties did intend to include the landlord’s share of the cotton produced by Tennell;
(7) at the time Esteve learned no more cotton would be delivered, the market price of the cotton Tennell produced but did not deliver was 60.5 cents per pound;
(8) the contract price of the cotton Tennell produced but did not deliver was 60.5 cents per pound; and
(9) Esteve, through Young, did not convert the 49 bales delivered by Tennell.

Receiving the verdict, the court, acting on motions after notice, disregarded the jury’s answer to special issue no. 8 upon finding that the undisputed evidence established the contract price of the produced but undelivered cotton at 28.70 cents per pound, and specifically accepted the findings and answers of the jury on all other issues, further reciting that as a matter of law Tennell did contract to sell the landlord’s share of the cotton. The court then rendered its 21 November 1975 judgment decreeing that Esteve recover from Tennell the sum of $12,344.12 — computed on 38,818 pounds (the weight of the 76 undelivered bales of the 125 bales found by the jury to be the greatest number of bales not unreasonably disproportionate to the estimated 100 bales shown in the contract to be delivered) at 31.8 cents per pound (the difference between the market price of 60.5 cents per pound and the contract price of 28.7 cents per pound determined by the court) — with interest thereon from date at the rate of six percent per annum and costs.

Each party indicated dissatisfaction with the judgment rendered. As appellant, Ten-nell presents eighteen points of error; as appellee, Esteve advances four cross-points.

The contract giving rise to this litigation is one of several completed on identical forms by Young in contracting with cotton farmers in 1973. Recently, in Esteve Cotton Company v. Hancock, 539 S.W.2d 145 (Tex.Civ.App. — Amarillo 1976, writ ref’d n.r.e.), this Court had occasion to review one of these contracts which differs from the one now before us only in the name of the farmer, his farm designation and acreage, the estimated number of bales to be delivered, and the failure in Hancock to select which of the two paragraphs (5) was applicable. After an in-depth consideration of the contract, we concluded in Hancock that, although the unequivocal agreement is for the sale and delivery of the entire future production of the 1973-74 crop of lint cotton from the listed acreage, the contract was ambiguous because it could not be said as a matter of law that cotton whose micronaire was not specifically listed in paragraph (4) was intended to be included or excluded, and, therefore, parol evidence bearing on the intent of the contracting parties was admissible. 539 S.W.2d 155-57. We adhere to those holdings and overrule Tennell’s first, seventh and eighteenth points of error charging the trial court with error in failing to hold the contract did not cover cotton with a micro-naire measurement in excess of 3.5 as a matter of law, in admitting Young’s testimony of the conversations of the parties and of his intent and understanding in executing the contract, and in overruling Ten-nell’s objections and motion to disregard the answer to special issue no. 1.

Not preserved for appellate review are Tennell’s second- and third-point complaints of the overruling of his motion for instructed verdict because he was not given notice of the assignment of the contract to Esteve and that the failure to do so made the contract unenforceable by Esteve. A point of error cannot be based upon a motion for instructed verdict; to form the basis of a point of error the grounds in a motion for instructed verdict must be carried forward as assignments of error in the motion for new trial. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 891-92 (1960). The only manner in which the matters in the motion for instructed verdict were included in Tennell’s amended motion for new trial is by the statement, “The court erred in failing to grant Defendant’s Motion for Instructed Verdict.” Reference to the motion for instructed verdict reveals that it submits seven separate grounds. Rules 320, 321, 322 and 374, the Texas Rules of Civil Procedure governing the form of assignments in motions for new trial which become the basis of points of error on appeal, require that the motion for new trial clearly specify each ground of error on penalty of waiver; therefore, an objection to an error of the trial court is not preserved by mere reference in the motion for new trial to a prior motion, even though the prior motion did make a particular objection clear and certain. J. Weingarten, Inc. v. Moore, 449 S.W.2d 452, 453 (Tex.1970). Thus, the assignments in Tennell’s amended motion for new trial are too general to preserve these complaints for appellate review.

By the same reasoning, the tenth point was not preserved. It, listing multifarious contentions of error in overruling the motion for instructed verdict and objections to the court’s charge, is merely referenced to the amended motion for new trial assignment of “The Court erred in failing to grant Defendant’s Motion for Instructed Verdict.”

In the same vein is the fifteenth point. It is that the court erred in failing to grant Tennell’s motion for judgment on the verdict because the jury’s verdict entitles him to judgment in this case. The basis of the point is the fifty-ninth assignment of error in Tennell’s amended motion for new trial which reads: “The Court erred in failing to grant Defendant’s Motion for Judgment on the Verdict.”

Notwithstanding, it has been appropriate to consider the specific contentions and arguments made under the waived points either singularly or in connection with other interrelated and sometimes grouped points. In considering them, we find that none of the contentions show reversible error.

To establish the contract price of the cotton, proof of the official USDA government loan value to which the contract price was related was required. Esteve’s Exhibit No. 4, a recap sheet of government loan prices for different grades and staples of cotton for the crop year 1973, was first excluded from evidence upon objection that it was not properly authenticated under Vernon’s Ann.Civ.St. art. 3731a, § 4 (Supp. 1976), but it was later admitted for the limited purpose of showing Tennell’s familiarity with the micronaire discount system. Esteve’s Exhibit No. 5, a publication entitled “Weekly Cotton Market Review Vol. 54, No. 41” and imprinted “United States Department of Agriculture, Agricultural Marketing Service, Cotton Division” which listed official government loan values and micronaire discounts for the 1973 cotton season, was admitted in evidence over the same objection that was made to Exhibit No. 4.

Tennell’s seventeenth point is that the court erred in admitting Exhibit No. 5. There is no assignment in the amended motion for new trial which asserts error in the admission of Exhibit No. 5 and, therefore, we may not consider the point. Rule 320, T.R.C.P. There is, however, the thirty-first assignment of error in the amended motion for new trial which challenges the admissibility of Exhibit No. 4, and Tennell now argues that this was a clerical error and he meant Exhibit No. 5. The purpose of an assignment of error in a motion for new trial is to clearly identify the error in order that the trial court may fully understand the complaint and have a fair opportunity to take corrective action. Here, both Exhibits Nos. 4 and 5 were admitted in evidence. The complaint of the admission only of Exhibit No. 4 neither identified for the trial court the error now advanced on appeal respecting Exhibit No. 5, nor afforded the trial court the opportunity to consider the admission of Exhibit No. 5 for corrective action. Because the error now contended for was not distinctly set forth in the amended motion for new trial, it shall be considered as waived, Rule 374, T.R.C.P., and the question is not before us. Meyer v. Great American Indemnity Company, 154 Tex. 408, 279 S.W.2d 575, 578-79 (1955); Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407, 409 (1943).

By his eighth point, Tennell contends that the trial court erred in excluding, after a hearing outside the jury’s presence, the offered testimony of his witnesses L. L. Duck-ett, Vic Struve, Ruth Cox and Charles Lambert. The excluded testimony was that Duckett and Young discussed in the Fall of 1973 a “3.5 mike contract” with micronaire categories similar to those of the Tennell-Young contract which specified the highest micronaire category as merely “3.5” rather than “3.5 and above.” Duckett said Young told him that “all those contracts that only read the 3.5 were incomplete contracts.” Vic Struve’s testimony was that in a conversation in the Fall of 1973 with Young about his “3.5 mike contract” with a different company, Young said, “It looked like it meant just exactly what it said” and that he (Young) would like to buy cotton over 3.5. Ruth Cox said she heard Young tell Struve that Struve’s contract was incomplete. Charles Lambert stated that in the Fall of 1973 after he told Young that his contract “reads only up to 3.5 mike,” Young offered to buy all of his cotton that miked above 3.5. Lambert’s contract was on a form different from that of the Tennell-Young contract.

In Esteve Cotton Company v. Hancock, supra, similar testimony was given by these witnesses. 539 S.W.2d 152-53. There, because the testimony was admitted for the limited purpose of aiding the jury, if it did, in determining the intent of the contracting parties, we held that it was within the trial court’s discretion to receive the testimony limited to its relevancy to the contested issue of intent. 539 S.W.2d 159. Here, however, Tennell does not contend that the testimony was offered for that purpose; instead, he contends that it was admissible for impeachment purposes and as an admission against interest.

The testimony was admissible for impeachment by prior inconsistent statements, Tennell says, because during the course of the trial Young responded that he did not remember any conversations with these witnesses concerning a 3.5 mike contract. It must be noted that the response by Young was made, not in the presence of the jury, but in the hearing held outside the jury’s presence, and there is no complaint to the exclusion of this assertion by Young. Obviously, then, because Young’s “did not remember” response was not made to, and could not be considered by, the jury, it was not subject to impeachment by evidence of his prior statements. 1 C. McCormick and R. Ray, Texas Law of Evidence § 697 (2d ed. 1956).

Further Tennell says that the excluded testimony was admissible for the additional reason that it was an admission against interest. Even if we ignore the pronouncement in Singleton v. Carmichael, 305 S.W.2d 379, 384 (Tex.Civ.App. — Houston 1957, writ ref’d n.r.e.), that where evidence is offered for two purposes and it is inadmissible for one purpose, although it may be admissible for the other, its exclusion is not improper, we find no error in excluding the testimony. Young, who was not made a party to the litigation, was the agent for Gant Cooley at the time the contract was made. The offered assertions by Young were made some months following the execution of the contract and there is no showing of Young’s agency status at that time. Absent a showing that Young’s statements were authorized so as to bind Esteve, there was no error by the court in not receiving the testimony. Big Mack Trucking Company, Inc. v. Dickerson, 497 S.W.2d 283, 287 (Tex.1973). The eighth point is overruled.

The trial court’s refusal to submit two requested special issues with accompanying instructions gives rise to Tennell’s fourth point of error. First requested was an issue inquiring whether Esteve failed to give Tennell notice of the assignment of the contract, and, conditioned upon an affirmative answer to that issue, the second requested issue asked whether the failure impaired materially Tennell’s chance of obtaining performance of the contract by Es-teve. We perceive no error.

It was undisputed that Esteve did not give Tennell notice of the assignment; therefore, the submission of the first requested issue on this undisputed fact was unnecessary. Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971). With regard to the second requested issue, Tennell has not referred to any evidence in the record raising the issue whether his failure to receive notice materially impaired his chance of obtaining performance by Esteve; consequently, without evidence thereof, the issue was not submissible. Ladd v. Knowles, 505 S.W.2d 662, 669 (Tex.Civ.App. — Amarillo 1974, writ ref’d n.r.e.). The fourth point is overruled.

The gravamen of the sixteenth point is that the jury was erroneously instructed as to the law of “usage of trade” as it applied to this case. Included in the instructions preceding the special issues was the following:

You are instructed that a contract may be explained or supplemented by usage of trade. Usage of trade means any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question.
You are further instructed that where there is nothing in the agreement to exclude the inference, the parties are presumed to contract in reference to the usage or custom which prevails in the particular trade or business to which the contract relates.

The first paragraph is predicated on the first sentence of V.T.C.A., Bus. & C. § 1.205(b), which cautions that “(t)he existence and scope of such a usage are to be proved as facts.” The second paragraph is from the opinion in Dwyer v. City of Brenham, 70 Tex. 30, 7 S.W. 598, 599 (1888), approving the admission of parol evidence of usage, which was consistent with the contract’s language, to show the proper meaning of the language used in the contract.

Although the instruction itself does not identify any particular usage of the cotton trade, the parties seem to agree that it was directed to their controversy whether the micronaire term “3.5” means “3.5 and above.” If this be the case, the instruction should not have been given because there is no probative evidence of that usage in the cotton trade; i. e., there is no evidence that the term “3.5” is used to mean “3.5 and above” with such regularity of observance in the cotton trade as to justify the expectation that it was used by the parties in that respect in their contract. Therefore, there could be no presumption that the parties intended to contract with reference to a usage that was not established in the cotton trade.

The question then arises whether the inclusion of this instruction in the charge was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P. In considering the question, we are required to examine the whole record and to indulge every reasonable presumption consistent with the record in favor of the correctness of the judgment. Gordon v. Aetna Casualty & Surety Company, 351 S.W.2d 602, 604 (Tex.Civ.App. — Eastland 1961, writ ref’d).

The instruction was the fourth of six separate instructions preceding the special issues; it was not directed to any particular special issue; it did not identify any usage of trade to which the instruction related; and, if it in fact was intended to pertain to the term “3.5” embraced in special issue no. 1, there is in the record, independent of any presumption that may have been prompted by the instruction, other evidence of sufficient probative force to support the jury’s answer to that special issue. We conclude, under the requirements for our review, that the submission of the instruction was not reversible error. The sixteenth point is overruled.

If Tennell breached the contract, Esteve had its choice to cover, V.T.C.A., Bus. & C. § 2.711, and seek recovery for the difference between the cost of cover, if made in good faith and without unreasonable delay, and the contract price, V.T.C.A., Bus. & C. § 2.712, or not to cover and seek the difference between the market price at the time Esteve learned of the breach and the contract price. V.T.C.A., Bus. & C. § 2.713. The jury was asked, in special issue no. 7, to find the market price of the cotton Tennell produced but did not deliver at the time Esteve learned no more cotton would be delivered, and answered “60.5 cents per pound.” Tennell’s ninth contention is that it was error to overrule his objections to the damage issue because there are no pleadings to support the submission, it being his position that Esteve pleaded only the damage measure of cost of cover without adducing any proof of cover.

Conceding that its pleadings are not a model of correctness in this respect, Esteve did allege its “damages, based on cost of cover within a reasonable time after learning that Defendant intended to breach his contract, and based on the market price when Plaintiff learned of the breach, amounts (sic) to at least $165.00 per bale on the cotton produced by Defendant but not delivered.” Also, Esteve alleged that it sustained damages “in the amount of 33 cents per pound, or $165.00 per bale, on 126 bales, for a total of $20,790.” Tennell neither points to nor argues any exception to this pleading.

The object of pleadings is to give fair and adequate notice to the opposing party of the pleader’s contentions. The pleadings may be in general terms and, if not excepted to, are sufficient to admit evidence under the allegations. Barber v. Corpus Christi Bank & Trust, 506 S.W.2d 254, 259 (Tex.Civ.App. — Corpus Christi 1974, no writ). Moreover, a plaintiff is not required to allege the applicable legal measure of damages. Davies v. Texas Employers’ Ins. Ass’n., 16 S.W.2d 524, 525 (Tex.Comm’n App. 1929, holding approved); Dallas Railway & Terminal Co. v. Strickland Transp. Co., 225 S.W.2d 901, 903 (Tex.Civ.App. — Amarillo 1949, no writ).

In the case at bar, Esteve pleaded both measures of damages generally and, absent an exception, the pleadings authorized the admission of proof of either measure. There was no evidence of cover, but there was evidence of the market value of cotton at the time Esteve learned of Tennell’s breach. This evidence authorized the submission of special issue no. 7. In this connection, Tennell alternatively objected that “there is insufficient evidence to support the submission of such issue.” The contention must be considered as one of “no evidence” because the court may not refuse to submit an issue merely because the evidence is factually insufficient to support its submission. Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965). In this respect, Tennell argues only that there is no evidence showing when Esteve “learned” of the date Ten-nell would not deliver more cotton.

Within the record there is evidence that Tennell, after receiving a “favorable report” from his lawyer, made up his mind on 11 December 1973 not to deliver any more cotton under his contract. On 12 December 1973 Royce Cooley, the assignor of the contract to Esteve, was shown an 11 December 1973 letter addressed to Young from Ten-nell’s lawyer, and he then knew that Ten-nell was claiming that his cotton was not covered by the contract. Cooley immediately notified Esteve. In view of this evidence, we cannot say that there is no evidence of the date Esteve learned that Ten-nell would not deliver any more cotton. The ninth point is overruled.

Tennell testified that on 12 December 1973, he sold the 126 bales of cotton he produced but did not deliver under the contract to Texanna Cotton Company for 60.5 cents per pound, “the best bid we could get,” and acknowledged that the “market value” on that day was 60.5 cents per pound. His testimony alone is sufficient to support the jury’s answer to special issue no. 7. Accordingly, his eleventh point challenging the sufficiency of the evidence to support the answer is overruled.

V.T.C.A., Bus. & C. § 2.305(a) provides that parties, if they so intend, can conclude a contract for sale even though the price is not settled, in which event, subject to the stated contingencies, the price is a reasonable price at the time for delivery. Relying on this section, Tennell requested, and the court refused, submission of Tennell’s instruction in the words of § 2.305 and his requested issues inquiring whether at the time of the contract the price for the cotton with a micronaire in excess of 3.5 was not settled, and inquiring of the reasonable price for the 49 bales of cotton Tennell did deliver. The court’s refusal to submit the requests is the subject of the thirteenth and fourteenth points of error.

To be submitted are “the controlling issues made by the written pleadings and the evidence.” Rule 279, T.R.C.P. It is apparent from both the pleadings and the parties’ postures at trial that neither contended Tennell and Young had intended to conclude the contract without settling the price for all cotton. Illustratively, Esteve pleaded that the parties intended the prices specified for 3.5 micronaire cotton were the prices for all cotton that had a micronaire test of 3.5 or higher or, alternatively, if the contract was ambiguous, “it was never the intention of any party to this contract to exclude any cotton from the contract or to leave the price open for any cotton.” Es-teve’s evidence was adduced to support its pleadings. To the contrary, Tennell pleaded that “(t)he contract is clear and does not cover cotton that has a micronaire in excess of 3.5. There was no intent of the parties, and there was no meeting of the minds between the parties to include cotton above a micronaire of 3.5. All of Defendant’s cotton exceeded a micronaire of 3.5, and under the clear, express agreement of the parties Defendant’s cotton was not covered by the contract.” Tennell’s evidence conformed to his pleadings, and he does not suggest that either contracting party testified that they intended to leave the price of any cotton open. Thus, the requested issues, and accompanying instruction, were neither raised by the pleadings nor the evidence. Rule 277, T.R.C.P., requires as the prerequisite for submission that the issues be raised by both the written pleadings and the evidence. The thirteenth and fourteenth points are overruled.

The conclusion that open price was not a submissible issue invalidates the reason for the twelfth point. By that point Tennell submits that the court erroneously disregarded the jury’s special issue no. 8 answer that the contract price for the undelivered cotton was 60.5 cents per pound. The only reason given to sustain the point is, as we understand Tennell’s argument, that the jury’s finding was consistent with leaving the price open in the contract. Obviously, the jury’s finding could not be consistent with an issue that was not before it. Be that as it may, the court, after the motion was made and notice was given, was authorized by Rule 301, T.R.C.P., to disregard the jury’s answer because it has no support in the evidence, and, of course, no jury finding is necessary to establish an undisputed fact. Wright v. Vernon Compress Company, 156 Tex. 474, 296 S.W.2d 517, 523 (1957). The contract price was a matter of mathematical calculation from the contract and the evidence of the loan values. The court’s calculation of 28.70 cents per pound is consistent with the documentary evidence in the record and the correctness of the calculation has not been disputed by Tennell, who testified that the contract price of the 49 bales he delivered was 28.76 cents per pound. Consequently, the court properly disregarded the jury’s answer and computed the contract price from the undisputed evidence. The twelfth point is overruled.

As special issue no. 6, the court inquired, and the jury answered, as follows:

Do you find from a preponderance of the evidence that the parties to the contract in question did not intend to include the landlord’s share of the cotton produced by H. S. Tennell?
Answer “They did” or “They did not”.
ANSWER: They did

It is Tennell’s sixth-point-of-error contention that the court erred in holding as a matter of law that Tennell did contract to sell the landlord’s share of cotton contrary to the jury’s finding. Relying primarily on the opposite of the result reached in Wilton v. Johnson, 278 S.W.2d 488 (Tex.Civ.App.— Amarillo 1954, no writ), it is Tennell’s view that issue no. 6 was phrased as a double negative and that by its answer, the jury found on sufficient evidence that the landlord’s share of cotton was not included in the contract. We do not agree with either the contention or the view.

In Wilton, the issue was, “Do you find . that the collision was not the result of an unavoidable accident?” The jury was instructed to answer, “It was the result of an unavoidable accident or it was not the result of an unavoidable accident,” but the jury disregarded the instruction and answered “No.” The court correctly held that the answer constituted a finding that the collision was the result of an unavoidable accident. 278 S.W.2d 489.

Here, however, the jury followed the court’s instruction in choosing the answer that reflected their finding. The issue properly placed the burden of proof on Ten-nell and, to exclude the landlord’s share, he was required to secure the answer, “They did not.” The “They did” answer constitutes a finding that the parties intended to include the landlord’s share of cotton in the contract. The court specifically accepted this answer. Thus, the court’s additional conclusion of law that the parties intended the landlord’s share to be included is not contrary to, but it is in harmony with, the jury’s answer which has not been challenged on any evidentiary basis. The sixth point is overruled.

In his fifth and last point for consideration, Tennell attacks the judgment allowing Esteve recovery on 125 bales of cotton by challenging, in various ways, the result of the submission of the special issues, and particularly issues nos. 3 and 5, inquiring of the number of bales that are, or would not be, unreasonably disproportionate to the estimate of 100 bales shown in the contract. Without further detailing the challenges, it may be said that Tennell’s prime position is that the jury was not asked to determine the exact number of bales that would not be unreasonably disproportionate to the stated estimate, and by authority of Y.T. C.A., Bus. & C. § 2.306, Esteve could not, under this record, demand more than the 75 bales the jury found in special issue no. 3 to be the least disproportionate number. As a matter of expediency, this point and Es-teve’s cross-points three and four will be considered together. Those cross-points are that the court erred in refusing to disregard the answers to special issues nos. 4 and 5 and enter judgment for the undelivered production of 126 bales.

V.T.C.A., Bus. & C. § 2.306 concerns an agreement for sale of the output of a seller or the requirements of a buyer. But, here, while there is testimony that estimating the number of bales to be delivered under the contract is for the benefit of the buyer in selling the cotton to mills, the production contracted for was not to be measured by the requirements of the buyer so as to invoke the provisions of V.T.C.A., Bus. & C. § 2.306(a). Instead, the contract is for Tennell’s “entire production” from the acreage. In construing the contract in Esteve Cotton Company v. Hancock, supra, we said at 539 S.W.2d 155:

The contractual paragraph first quoted is clear and, therefore, unambiguous. The unequivocal agreement there is for the sale and delivery of the entire future production of the 1973-74 crop of lint cotton from the listed acreage, the exclusion of cotton already harvested being patently inapplicable because the crop had not then been planted. This expression is harmonious with the paragraph (6) provision that Hancock is authorized to contract for the sale of each and every bale of cotton produced on the described acreage.

We adhere to that holding with the result that Esteve is entitled under the contract to recover on the 126 bales of cotton produced from the acreage but not delivered to it. The amount of recovery is established from the undisputed facts in the record. The 64,357 pounds the undelivered 126 bales weighed multiplied by 31.8 cents per pound, the difference between the contract price and the market price when Esteve learned of Tennell’s breach, amounts to $20,465.52. It follows that Tennell’s fifth point of error is overruled and that Esteve’s third and fourth cross-points are sustained.

The trial court denied Esteve prejudgment interest. That denial prompted Esteve’s second cross-point by which it claims simple interest from the time it learned Tennell had breached the contract. V.A.C.S. art. 5069-1.03 (1971) provides that absent an agreement by the parties, interest at the rate of six percent per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable. The test is said to be that if the measure of recovery or claim, and not necessarily the amount of damages, is determinable at the time of injury, prejudgment interest is properly awardable; if not, interest proceeds from the date of judgment. Metal Structures Corporation v. Plains Textiles, Inc., 470 S.W.2d 93, 103 (Tex.Civ.App. —Amarillo 1971, writ ref’d n. r. e.). Here, when on 12 December 1973 Esteve learned of Tennell’s breach and opted not to cover, its measure of recovery was fixed as the difference between the contract price and the market price on that date, both of which were fixed amounts subject only to calculation. Therefore, the amount of recovery is determinable at the time Esteve learned of the breach and Esteve is entitled to prejudgment interest from 12 December 1973 to 21 November 1975 in the sum of $2,385.22. Esteve’s second cross-point is sustained.

The trial court decreed that its 21 November 1975 judgment shall bear interest from date at the rate of six percent per annum. Esteve asserts in its first cross-point that the court erred in not providing for post-judgment interest at the rate of nine percent per annum in accordance with V.A.C.S. art. 5069-1.05 (Supp.1976), which was amended to change the previous rate of six percent per annum on judgments to nine percent per annum effective 1 September 1975. Tennell responds that the six percent rate is correct because all of the events upon which Esteve’s cause of action was based occurred prior to the effective date of the amendment.

In amending the statute to increase the rate of interest on judgments, the legislature left intact the encompassing statutory language reading: “All judgments of the courts of this State shall bear interest at the rate of . percent per annum from and after the date of the judgment . .” Clearly, it is the date of the judgment, not the time when the cause of action arose, that determines what rate of interest is to be imposed under the statute. The mere fact that the contract was entered into or breached prior to the amendment increasing the post-judgment interest rate is irrelevant where the judgment is rendered subsequent to the amendment’s effective date. Cf. Coles v. Kelsey, 13 Tex. 75, 78 (1854); Weatherford, M.W. & N.W. Ry. Co. v. King, 280 S.W. 235, 237 (Tex.Civ.App. — Eastland 1925, writ dism’d). By the terms of the statute, Esteve is entitled to have its judgment, rendered after the nine percent rate became effective, bear interest at the rate of nine percent per annum from 21 November 1975, the date of the judgment. The first cross-point is sustained.

The judgment of the trial court is reformed to provide that Esteve Cotton Company do have and recover of and from H. S. Tennell the sum of $22,850.74 (consisting of the principal sum of $20,465.52 with prejudgment interest thereon from 12 December 1973 to 21 November 1975 in the sum of $2,385.22), together with interest thereon at the rate of nine percent per annum from 21 November 1975 until paid. As reformed, the judgment is affirmed.

      . H. S. Tennell, residing northeast of Abernathy, near Lubbock, Texas, has been a cotton farmer for nearly 37 years.

      . Clarence Young, a resident of Lubbock, has been a cotton buyer for 35 or 40 years, buying cotton both for himself and as agent for others. He has known H. S. Tennell for 23 or 24 years, having purchased Tennell’s cotton several times in years past, although this is the first time he contracted Tennell’s future production.

      . Had the points been properly preserved for consideration, they would not reflect reversible error. The contract is silent as to, and it therefore does not prevent, an assignment. The Texas Business and Commerce Code (1968) recognizes that unless otherwise agreed, all rights of either party may be assigned except where the assignment would materially change the duty of the other party, or increase materially the burden of risk imposed on him by his contract, or impair materially his chance of obtaining return performance. V.T.C.A., Bus. & C. § 2.210(b). Tennell has not pointed to any circumstance in the transaction or to any evidence in the record to show that the assignment falls within one of the exceptions. He merely asks upon whom he would have demanded performance had the market price of cotton fallen below the contract price, and then he argues that, because he did not know about Esteve, his chance of return performance was materially impaired. The brief answer is that Tennell’s chance of return performance could not be materially impaired by the mere addition of a party to whom he could look for performance, for, although by virtue of the assignment Esteve became obligated for the contractual performance of Gant Cooley, the latter was not thereby relieved of its contractual obligation if Esteve failed to perform.

      . Tennell’s argument under this point, rather than contending an entitlement to submission of the fact issue, is that, as a matter of law, Esteve’s failure to give him notice of the assignment was a repudiation of the contract by Esteve for which Tennell could suspend his performance. The premise is that V.T.C.A., Bus. & C. § 2.210(e) states that a party may treat any assignment which delegates performance as creating reasonable grounds for insecurity and may demand assurances from the assignee which, under V.T.C.A., Bus. & C. § 2.609(a), allows a suspension of performance until assurance is received, and, by authority of V.T.C.A., Bus. & C. § 2.609(d), if the assurance is not received within a reasonable time not exceeding thirty days, there is a repudiation of the contract. Plainly, suspension of performance is not available until assurances have been demanded and repudiation does not occur unless the demanded assurance is not received. Here, however, Tennell did not demand any assurance upon which his suspension of performance or Esteve’s repudiation could be founded.


author: McDONALD, Chief Justice.

text:
    Johnny S. MACIAS, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 5664.
    Court of Civil Appeals of Texas, Waco.
    Dec. 30, 1976.
    Rehearing Denied Jan. 27, 1977.

      Bob Huff & Associates, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   OPINION

McDONALD, Chief Justice.

This is a workman’s compensation case. Johnny Macias was an employee of the New Deal Gin and Texas Employers was the insurance carrier. Macias alleged a back injury occurred on December 2,1974, on the premises of his employer, the New Deal Gin. Trial was to a jury.

The jury in answer to Issue 1 found that Macias did not sustain an accidental personal injury on or about December 2, 1974. Other issues submitted were conditioned on an affirmative answer to Issue 1 and were not answered. The trial court rendered judgment on the jury verdict that plaintiff take nothing.

Plaintiff appeals on 3 points, contending among other matters, that the verdict of the jury and judgment of the court are contrary to the great weight and preponderance of the evidence.

As noted the jury found Macias did not receive an accidental injury which under the trial court’s instruction included the acceleration or aggravation of any previously existing physical condition or disease by reason of damage or harm to the physical structure of the body.

Macias had been working at the New Deal Gin a part of two weeks prior to the alleged accident. He testified that on the night of December 2, 1974 (at about 2 o’clock A. M.) he was operating a hoist and raised a cotton bale on such hoist to get the bale over another bale already on the dock; that as he raised the bale on the hoist and was pushing it toward the dock and trying to get it over the loading dock to bypass other bales in the way, the bale came loose from the burlap it was wrapped in; and as he was pushing against it, it came back against him and pushed him back; thereafter falling to the ground; that he felt a strain in his back; that he had sharp pains in his back on his spine where his belt is. He continued to work the rest of the shift. Two fellow workers testified they saw plaintiff at the time of his injury. The evidence is disputed as to whether Macias reported his injury to the ginner, Mr. Williams that night or on December 6, three days later. Ginner Williams testified Macias was a “fair gin hand”. Mr. Williams arranged for Macias to see Dr. Johnson on December 6, who x-rayed him and gave him medication and later referred him to Dr. Santos. Dr. Santos x-rayed and treated his back; and referred him to Dr. Evans who performed a hemilaminectomy and Dr. Santos performed a Lumbo-sacral fusion from L4 to SI. The medical records reflect Dr. Santos has seen Macias at about 3 month intervals through November, 1975, and that he had a very good post operative course. The surgery and medical bills were paid for by defendant insurance carrier.

While there are some inaccuracies and inconsistencies in some of the testimony as to some details, it is undisputed plaintiff was lifting heavy objects; there is nothing in the record to contradict the evidence of plaintiff and the two co-workers; and same is substantiated by the medical evidence.

From the record as a whole we think the verdict and judgment contrary to the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Mackey v. Guif Insurance Co., Tex.Civ.App., NWH, 443 S.W.2d 911.

The judgment is accordingly reversed and the cause remanded.

REVERSED AND REMANDED.