author: PRESLAR, Chief Justice.

text:
    George ALLISON, Administrator of the Estate of George E. Brashear, Jr., Deceased, Appellant, v. Robert Gray BRASHEAR et al., Appellees.
    No. 6534.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 17, 1976.

      Crawford, Crawford & Hughes, R. S. Crawford, Jr., Uvalde, for appellant.
    White & White, David R. White, Jr., Uvalde, Villarreal & Cline, Joe Villarreal, Jr., San Antonio, Kessler, Nichols & Harris, W. A. Kessler, Jr., Uvalde, George D. By-field, Austin, James P. Garner, El Paso, E. D. Kincaid, III, Uvalde, for appellees.
   OPINION

PRESLAR, Chief Justice.

This proceeding was an application to declare heirship and for partition and distribution of the Estate of George E. Brashear, Jr., who died intestate. The principal question involved is the interpretation of Section 38(a)(4), Tex.Prob.Code Ann., where both paternal grandparents are deceased. Also involved is the question of the standing of the Administrator of the Estate to question the trial Court’s honoring an assignment of an heir’s interest. We affirm the judgment of the trial Court.

We first consider a point of error raised by a number of Appellees. George E. Brashear, Jr., hereinafter called Intestate, died intestate survived only by descendants of his maternal grandparents and descendants of his paternal great-grandparents. The trial Court divided the Estate into two equal moieties, and of this there is no complaint; nor is there any complaint as to the division on the maternal side. The problem centers on the fact that the Intestate’s paternal grandparents had no surviving descendants, so the Court divided their moiety of one half into two further moieties between the paternal and maternal great-grandparents’ descendants. This, Appellees assign as error.

Section 38(a)(4) of the Probate Code provides:

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

There being no surviving grandfather or grandmother, our concern is with the interpretation of the last sentence above. Under that provision, should the trial Court have divided the grandparents’ portion into two additional moieties, one to the descendants of the paternal great-grandparents, and the other to the descendants of the maternal great-grandparents? Or, as Ap-pellees argue should the whole of such estate be inherited equally by their collateral heirs?

We are of the opinion that the trial Court correctly divided the paternal estate into two additional moieties at the great-grandparent level. This has not been decided by any Texas Court to date, but we construe this to be the intention of the Legislature. The Legislature has provided that in the first instance, the inheritance should be divided into two moieties between the paternal and the maternal kindred. It is not for Courts to decide the reasons for the Legislature acting in a certain manner, but it would seem that whatever reasons existed for the division in the first instance would likewise exist where the question is again reached at the great-grandparent level. In a very early case, our Supreme Court determined that the reason for the statute was that it was the intention of the Legislature to destroy all discrimination or distinction between the relations on the father’s side and those on the mother’s side. The Court said:

“Considering that the blood of the intestate flowed equally in the veins of the maternal as well as in the paternal kindred, and thereby a rightful heir might be as well traced through the one line as the other, and, as a rule of property, it would be as fixed and determinate as any other rule, and more consonant with the general American system of more universal diffusion of property, the legislature very wisely, as we think, established this rule as a law of descent and distribution in this state, which certainly puts it, as a law of property, more in harmony with our general system of laws.” Jones v. Barnett, 30 Tex. 638 (1868).

One eminent authority agrees with the construction given the statute by the trial Court and this Court. Bailey, Texas Practice, Wills, Vol. 9, Sections 45 and 46, states:

“ * * * At the second stage, when it appears there are no surviving descendants of grandparents on one side, it is apparently necessary to subdivide the ‘moiety’ into two equal shares, one to go to the decedent’s father’s paternal kindred, the other to the decedent’s father’s maternal kindred.”

Professor Bailey reasons that the language of the statute “and so on without end, passing in like manner to the nearest lineal ancestors and their descendants”, would seem to require this result. The alternative, he says, would be to resort to computation of degrees of relationship and there is no warrant for such a procedure.

The procedure urged by Appellees is a resort to computation of degrees of relationship and is condemned by the Courts. In the early case of McKinney v. Abbott, 49 Tex. 371 (1878), the intestate was survived by descendants of grandparents on one side and great-grandparents on the other. The Court determined that the moieties of the inheritants should go to the paternal and maternal kindred respectively, although the kindred of one side might be more remote than those of the other. This was again decided eighty-eight years later in Golden v. York, 407 S.W.2d 293 (Tex.Civ.App.—San Antonio 1966) where under the same fact situation the Court said:

“The trial court properly divided the estate into two equal moieties and gave one to the maternal kindred and one to the paternal kindred, even though they were a degree further removed from decedent than were the maternal kindred.”

The Supreme Court of Texas expressly approved that holding. Golden v. York, 410 S.W.2d 181 (Tex.1966).

Some forty of the heirs assigned one third of their interest to Altshuler Genealogical Service, whom the record reflects did a lot of work in locating the widespread heirs. Altshuler appeared at the trial, although not a party thereto, and introduced these assignments into evidence, and the Court, by its judgment, ordered the Administrator to issue the checks to the forty heirs, jointly payable to each heir and Altshuler. The Administrator, as Appellant, presents two points of error contending that the Court was without authority to award anything to Altshuler because they were not a party to the suit; the second point complains of the procedure for distribution by the jointly payable checks. We overrule these two points of error on the basis that the Administrator is not the party affected by the Court’s judgment in this regard and has no standing to assert error. The heirs were parties to the suit, and the Court had jurisdiction over them as well as the property. Only they could complain of the Court’s award of one third of the property to their assignee, and the procedure for payment to them by the joint checks. They have not complained. In fact, by their assignments they permitted the Court’s action. Eight of them appeared in Court and testified in favor of the assignments; they have since made no complaint in the trial Court and have made no complaint in this Court, and the judgment as to that matter has become final. It is not then a void judgment as Appellant contends, but is a final and valid judgment which protects him in his capacity as Administrator in carrying it out.

Finding no reversible error, the judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    R. C. BURDETTE, d/b/a Burdette Grain Co., Appellant, v. COOK INDUSTRIES, INC., Appellee.
    No. 1134.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 18, 1976.
    Rehearing Denied Dec. 9, 1976.
    L. H. Warburton, Jr., Perkins, Davis, Oden & Warburton, Alice, for appellant.
    Richard E. Flint, Gary, Thomasson, Hall & Marks, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a venue case arising out of a written contract between Cook Industries, Inc. and R. C. Burdette, d/b/a R. C. Bur-dette Grain Company, for the purchase of 2,000,000 pounds # 2 Yellow Sorghum at $4.35 per hundred pounds. The plaintiff-Cook alleged that defendant-Burdette refused to deliver the grain to Corpus Christi as the parties contracted. Plaintiff filed suit in Nueces County for $21,000.00 representing the difference between the contract price and the market bid price on September 22, 1975, the last day for defendant’s performance under the contract. The trial court overruled defendant-Burdette’s plea of privilege. Whereupon Burdette has appealed from this adverse ruling.

The plaintiff seeks to sustain venue by virtue of the exception in Subdivision 5, Article 1995, V.A.C.S. The general venue rule is that no person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:

“5. Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

The contract provided in part as follows: (The printed portion of the contract appears on the left. The part which was' typewritten on the form appears on the right.)

"QUANTITY TRADED 2,000,000 lbs
GRADE & GRAIN #2 Yellow Sorghum
$4.35 cwt.
SHIPMENT PERIOD July-August, subject to elevator ability to unload
WEIGHTS TO GOVERN Destination Official
DISCOUNT SCALE Market scale of discount to apply at time of shipment, subject to elevator ability to unload
PAYMENT TERMS We to mail check
BUSHELS
PRICE BASIS LOCATION Dlvd. Corpus Christi
GRADES TO GOVERN Destination Official
ROUTING

The defendant by five (5) points of error contends in effect that the plaintiff has not proved that the contract in question obligates the defendant to perform in Nueces County. The defendant argues that Subdivision 5 cannot be fixed by implication, citing Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (Tex.Sup.1948); Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120 (Tex.Sup.1952), which are inapplicable to this case. The defendant further contends that in a suit on a written contract, the trial court (in ascertaining proper venue) must look only to the written contract and may not consider parol evidence. We discuss this hereafter.

At the hearing on the plea of privilege, defendant-Burdette’s deposition was read into the record. He admitted that he had signed the contract in question and that he had read and was familiar with its basic terms. He also admitted he needed no further information than that which was provided by the terms of the contract itself to know he was obligated to deliver grain to Corpus Christi. Specifically, the defendant, admitted that the term “price basis location” that appears in the above subject contract was not only a price term but was also considered a delivery term of the contract. Questions were asked by the attorney for the plaintiff: (Answers by defendant, Bur-dette:)

“Q. As far as you were concerned, were you obligated to deliver the grain as specified in this purchase contract?
A. I answered that yes.
Q. You were?
A. Yes, sir.
Q. And you were obligated to deliver it to Corpus Christi, which is in Nueces County, correct?
A. That’s what it [the written contract] said.”

The defendant urges reversal because there is nothing in the written contract which provides for a “definite place” of payment for the damages sought to be enforced herein, citing Briarcliff, Inc. v. Texas Automatic Sprinklers, Inc., 472 S.W.2d 860 (Tex.Civ.App.—Dallas 1971, no writ) and Bowden v. Murphy, 448 S.W.2d 183 (Tex.Civ.App.—Waco 1969, no writ). These cases may be distinguished. In those particular cases, separate contractual provisions for recovery of liquidated damages failed to specify a place for payment. It was held that venue could not be established under another provision of the contract specifying the place for payment of the basic contractual obligation. These cases are not applicable to the facts before us. We do not have a similar provision for the recovery of liquidated damages and, therefore, the lack of a contract term specifying a place for payment is not determinative of this case.

One of the fundamental issues raised by defendant’s points of error is whether parol evidence is admissible at a venue hearing under Article 1995, § 5 to explain terms of trade usage and custom. Defendant argues that inadmissible parol evidence was used to establish the place of performance. When a written contract provides for performance at a “definite place”, venue may lie at the place where breach occurred. Our courts have held that parol evidence is admissible to establish the location of that place in a particular county. Bruce Campbell and Son Construction Co., Inc. v. Britton Drive, Inc., 527 S.W.2d 852 (Tex.Civ.App.—Waco 1975, no writ); Lebow v. Weiner, 420 S.W.2d 755 (Tex.Civ.App.— Houston [14th Dist.] 1967, no writ); Harrison v. Nueces Royalty Co., 163 S.W.2d 244 (Tex.Civ.App.—San Antonio 1942, writ dism’d). In addition, parol evidence is admissible to explain technical terms and trade usages as was done in this case. Gruss v. Cummins, 329 S.W.2d 496 (Tex.Civ.App.—El Paso 1959, writ ref’d n. r. e.); McCormick & Ray, Texas Law of Evidence, § 1651 (Supp.1974).

It is not necessary that the written obligation be spelled out in exact terms if the contract, viewed as a whole from its four corners, clearly shows that venue of performance lies in such county. Tyson v. Seaport Grain, Inc., 388 S.W.2d 731 (Tex.Civ.App.—Corpus Christi 1965, writ dism’d).

The contract before us provides for delivery at Corpus Christi, for export. The defendant admitted that this contract not only imposed an obligation upon him to deliver grain, but also provided that he deliver the grain to Corpus Christi which is in Nueces County. He breached this obligation. We hold that the defendant has contracted in writing to perform an obligation at a definite place and that place is in Nueces County. Because plaintiff’s suit was one for damages for the breach caused by defendant’s refusal to perform as such, venue was proper in Nueces County. McGregor v. Properties Investment of Huntsville, 527 S.W.2d 502 (Tex.Civ.App.— Houston [1st Dist.] 1975, writ dism’d); Tyson v. Seaport Grain, Inc., supra.

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

The judgment of the trial court is AFFIRMED.


author: GUITTARD, Justice.

text:
    Martin B. SHAW, Appellant, v. McPHAIL ELECTRIC COMPANY, INC., Appellee.
    No. 19028.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 18, 1976.
    Rehearing Denied Dec. 16, 1976.

      Allan D. Hilton, Hunter & Vineyard, Dallas, for appellant.
    Roger L. Turner, Dallas, for appellee.
   GUITTARD, Justice.

McPhail Electric Company recovered a judgment against Martin B. Shaw, the owner of a residence, enforcing a mechanic’s and materialman’s lien in the amount of $548.30. Shaw appeals, contending that McPhail Electric Company does not qualify either as an original contractor or as a subcontractor under the Hardeman Act, Tex.Rev.Civ.Stat.Ann. arts. 5452, 5453 (Vernon Supp.1976), and has not complied with the notice requirements of that Act. Ap-pellee contends that it should be treated as an original contractor under the sham contractor statute, Tex.Rev.Civ.Stat.Ann. art. 5452-1 (Vernon Supp.1976) and that the lien was properly secured by filing the lien affidavit with the county clerk and mailing two copies to the appellant in the time and manner required of original contractors by article 5453(1). We agree. Accordingly, we affirm the judgment.

Appellee McPhail Electric Company installed electrical fixtures and performed other services pursuant to an oral agreement between Leían McPhail, president of McPhail Electric and Ralph Salyers, on behalf of Salyers & Walley, Inc. The fixtures and other apparatus' were installed in a house being built by Salyers & Walley on land owned by Ralph Salyers and Ben Caballero. Salyers himself took McPhail to the building site and showed him the work to be done by McPhail Electric.

Appellee’s employees installed the specified electrical apparatus on February 25 and 26 and March 4 and 18 of 1974. Meanwhile, on March 6, Salyers and Caballero conveyed the tract on which the work was being done to appellant Shaw. Appellee sent bills for its work to Salyers & Walley and received one check from Salyers & Walley in part payment. On failure to receive further payment, appellee filed a mechanic’s and materialman’s lien affidavit with the county clerk on April 24,1974, and sent copies by certified mail to Salyers & Walley and to appellant.

Appellee sued Salyers & Walley on the debt and sued appellant for enforcement of the lien. Salyers & Walley failed to answer, and a default judgment was entered against it for the amount claimed. After trial without a jury, judgment was entered against appellant, giving him the option of paying appellee the sum of $548.30, which the court found to be the value of the electrical apparatus installed, or allowing appellee to enter upon the property and remove the fixtures subject to the lien. Shaw alone appeals from this judgment.

Appellant’s points of error present four contentions: (1) that appellee failed to qualify for a statutory lien as a subcontractor because there is no evidence establishing a contractual relationship between Salyers & Walley, Inc., and any owner of the property or any original contractor; (2) that the appellee failed to qualify for a constitutional or statutory lien as an original contractor because there is no evidence to establish a contract between appellee and the owner; (3) that appellee does not have an enforceable lien because it failed to give notice to the persons who owned the property at the time the work was done; and (4) that the trial court’s finding that all the materials listed on appellee’s invoice were specially fabricated, was against the overwhelming weight and preponderance of the evidence.

We do not consider the first and fourth contentions because they are immaterial to the judgment and to this appeal. The first is immaterial because appellee did not plead that it had the status of a subcontractor with regard to this construction job and on this appeal it expressly disclaims any subcontractor’s lien. The fourth contention has no significance on this appeal because the judgment is not based on the trial court’s finding that the materials were specially fabricated. Special fabrication of materials is significant only where such materials have not been delivered or incorporated into the construction, article 5452(1). Such materials, less their salvage value, may be included in the lien claim because they may have limited usability elsewhere. In this case, all of the materials for which a lien is claimed were installed at the construction site.

Pertinent to this appeal, however, is appellant’s second contention, that there is no evidence in the record establishing ap-pellee’s status as an original contractor. The trial court held that appellee was entitled to the status of an original contractor under the sham contractor statute, article 5452-1(1), which provides in part:

Whenever any owner of real property shall enter into any contract with a corporation for the construction or repair of any house, building or improvements thereon, and said owner can effectively control the corporation with whom such contract is made, through the ownership of voting stock therein, interlocking directorships or otherwise . . . any person, firm or corporation who, under a direct contractual relationship with said person or corporation and who may labor, specially fabricate material, or furnish labor or material to be used in the prosecution of the work under such contract shall be deemed to be in a direct contractual relationship with the owner and may perfect his lien against the property in the same manner as any other original contractor.

Although the judge made no specific findings of fact concerning the contractual relationship between Salyers & Walley, Inc., and the owners, Salyers and Caballero, or concerning whether said owners could effectively control Salyers & Walley, Inc., the evidence introduced at trial is sufficient to bring the case within the sham contractor statute. The evidence, though brief, is undisputed. Leían McPhail was contacted by Ralph Salyers early in 1974 concerning completion of the electrical work at the subject housing project. Salyers asked McPhail to come out to the project. When McPhail arrived, Salyers showed him around and pointed out the work to be done. At this time and also at the time the work began, Salyers was one of the owners of the tract where the project was located. All bills for materials and services rendered by appellee were addressed and mailed to Salyers & Walley, Inc., and appellee received one check from Salyers & Walley in partial payment. This evidence supports an inference that Salyers & Walley, Inc. had some sort of contract with the owners. Since it is undisputed that Ralph Salyers was one of the owners of the land and was also the person who acted for the corporation in contracting with McPhail for the electrical work, and since “Salyers” is one of the names used in the corporate name, we hold that the evidence supports the further inference that the owners of the land had “control” of the corporation within the meaning of the sham contractor statute. Thus the trial court was authorized to treat appellee as a contractor in a direct contractual relationship with the owner and as entitled to perfect his lien against the property in the same manner as any other original contractor, that is, by taking the steps prescribed by article 5453(1), without complying with the additional requirements applicable to subcontractors in article 5453(2). Da-Col Paint Manufacturing Co. v. American Indemnity Co., 517 S.W.2d 270, 272-73 (Tex.1974).

Appellant’s third contention is that appellee failed to comply with the notice requirements of article 5453(1) because it failed to mail the notice to Salyers and Caballero, who owned the property at the time the materials were first delivered, rather than to appellant Shaw, who had bought the property in the meantime. We do not agree that the notice must be sent to a former owner rather than the current owner. The statute requires only that notice be sent “to the owner.” It is reasonable to interpret this language as requiring notice to the owner at the time the notice is sent because his property is being subjected to the lien. Accordingly, we hold that ap-pellee perfected its lien against appellant’s property by timely filing of its affidavit with the county clerk and sending copies to the owner, appellant, by certified mail.

Appellant cites Inman v. Clark, 485 S.W.2d 372 (Tex.Civ.App.—Houston [1st Dist.] 1971, no writ) in support of his contention that the notice must be sent to the former owner. In that case, contractors who had dealt with the former owner filed their affidavit after the property had been sold and mailed a copy to the former owner. They brought their suit against the new owners, who defended on the ground that article 5453 required notice to them. The court of civil appeals held that the new owners had constructive notice of the lien because after they had bought the property they were present when the contractors were working and should have inquired as to whether they had been paid. We do not read this case as holding, even by implication, that a notice to the new owners would not have complied with the statute.

All of appellant’s points are overruled for the reasons stated.

Affirmed.


author: ROBINSON, Justice.

text:
    U-ANCHOR ADVERTISING, INC., Appellant, v. N. H. BURT, dba Granot Lodge, Appellee.
    No. 8668.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 22, 1976.
    Rehearing Denied Dec. 20, 1976.

      Hal Miner, Amarillo, for appellant.
    Kenneth A. Back, Amarillo, for appellee.
   ROBINSON, Justice.

Plaintiff in this suit for breach of contract sought jurisdiction over the nonresident defendant under the long-arm statute. The nonresident defendant made his special appearance to challenge jurisdiction. The trial court, after a hearing, sustained the challenge. The plaintiff appeals. Affirmed.

The plaintiff is a Texas advertising corporation which went into Oklahoma in order to solicit business from defendant. Defendant and an agent for the plaintiff executed a contract in Oklahoma calling for plaintiff to erect five roadside advertising signs in Oklahoma for defendant. Payment for the signs was to be made in Potter County, Texas. Defendant made several payments by mail to plaintiff before allegedly defaulting. Defendant is not a Texas resident, maintains no place of business in Texas, and has no agent for service in Texas. Plaintiff sued defendant in Potter County, Texas, and obtained service on defendant by serving the Texas Secretary of State.

Defendant filed his Tex.R.Civ.P. 120a special appearance, and the trial court dismissed the case for want of jurisdiction after a hearing on the special appearance motion. On appeal, plaintiff contends that defendant was doing business within the meaning of Vernon’s Ann.Civ.Stat.Ann. art. 2031b (1964), and that defendant had sufficient contacts with the State of Texas so that to sustain jurisdiction over him would not offend traditional notions of fair play and substantial justice.

Article 2031b, § 4, provides as follows:

For the purpose of this Act, and without including other acts that may constitute doing business, any foreign corporation, joint stock company, association, partnership, or non-resident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State.

There can be no question that the nonresident defendant was “doing business” within the meaning of the statute. The contract was performable in Texas, to the extent that it required the defendant to make his payments in Potter County, Texas. Standard Leasing Co. v. Performance Systems, Inc., 321 F.Supp. 977 (N.D.Tex.1971); Custom Leasing, Inc. v. Gardner, 307 F.Supp. 161 (N.D.Miss.1969); Estes Packing Company v. Radish & Milman Beef Co., Inc., 530 S.W.2d 622 (Tex.Civ.App.—Fort Worth 1975, no writ).

It is not enough, however, that the facts of a case fit into the provisions of art. 2031b, § 4. If they do, the court must still determine whether, under the facts of the particular case, the exercise of jurisdiction over the nonresident defendant offends the due process requirements of the 14th Amendment to the United States Constitution. Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 491-92 (5th Cir.1974); Atwood Hatcheries v. Heisdorf & Nelson Farms, 357 F.2d 847 (5th Cir.1966); Estes Packing Company v. Radish & Milman Beef Co., Inc., supra, 530 S.W.2d at 623-24; Pizza Inn, Inc. v. Lumar, 513 S.W.2d 251 (Tex.Civ.App.—Eastland 1974, writ ref’d n. r. e.).

In O’Brien v. Lanpar Company, 399 S.W.2d 340, 342 (Tex.1966), our Supreme Court articulates three basic elements which must coincide to sustain jurisdiction over a nonresident defendant, as follows:

(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

Due process requires that the nonresident defendant have certain minimum contacts with the forum state out of which the cause of action arose. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Factors to consider in determining whether or not there have been minimum contacts with the forum are:

(1) The nature and character of the business;
(2) The number and type of activities within the forum;
(3) Whether such activities give rise to the cause of action;
(4) Whether the forum has some special interest in granting relief; and
(5) The relative convenience of the parties.

Hearne v. Dow-Badische Chemical Company, 224 F.Supp. 90, 99 (S.D.Tex.1963); Sun-X International Company v. Witt, 413 S.W.2d 761, 765 (Tex.Civ.App.—Texarkana 1967, writ ref’d n. r. e.); and Trinity Steel Company v. Modern Gas Sales & Service Co., 392 S.W.2d 861 (Tex.Civ.App.—Texarkana 1965, writ ref’d n. r. e.). It is essential that there be some act “by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, supra.

Plaintiff cites several cases in which the courts sustained jurisdiction on facts similar to these. In Estes Packing Company v. Kadish & Milman Beef Co., Inc., supra, the plaintiff shipped meat to the nonresident defendant on the basis of an order given by the defendant to a broker, who gave the order to plaintiff for a commission. Plaintiff’s invoice, which stated that it was payable in Fort Worth, was sent with the meat. When plaintiff sued for the purchase price, the court found the minimum contacts sufficient to sustain jurisdiction in Texas. And in National Truckers Service, Inc. v. Aero Systems, Inc., 480 S.W.2d 455 (Tex.Civ.App.—Fort Worth 1972, writ ref’d n. r. e.), the court sustained jurisdiction over a nonresident who executed a guaranty agreement performable in Texas and mailed it into the state.

Similarly, in Standard Leasing Co. v. Performance Systems, Inc., supra, the Federal district court found art. 2031b applicable when the nonresident Tennessee defendant executed an equipment lease agreement with a Louisiana company, which assigned the contract to the Texas plaintiff. The nonresident was held amenable to suit in a Texas federal district court by virtue of having made several payments to the Texas company before allegedly defaulting.

There is another line of cases, however, which we believe more accurately reflects the proper consideration which must be accorded the due process requirements. In Pizza Inn, Inc. v. Lumar, supra, the nonresident defendant not only sent franchise fee payments into Texas, but he came to Texas himself for negotiations, and subsequently executed the franchise agreement and mailed it to the plaintiff in Texas. The court properly found that the defendant had established the minimum contacts necessary to meet the due process requirements. Those contacts are substantially more significant than the ones in the case before us.

In contrast, where the nonresident defendant never came to Texas in connection with the transaction, and all negotiations and payments occurred out-of-state, but the plaintiff shipped merchandise to the defendant FOB Houston, the court held that the minimum contacts had not been established. Sun-X International Company v. Witt, supra. This is because the activity relied upon to establish the minimum contacts may not be the mere unilateral acts of the plaintiff in the forum state. Hanson v. Denckla, supra; Omniplan, Inc. v. New America Development Corp., 523 S.W.2d 301 (Tex.Civ.App.—Waco 1975, no writ). But compare Uvalde Rock Asphalt Co. v. Consolidated Carpet Corporation, 457 S.W.2d 649 (Tex.Civ.App.—Beaumont 1970, writ ref’d n.r.e.), where there was a similar contractual arrangement, except that the nonresident defendant had the merchandise shipped from one point in Texas to another for its benefit, and the defendant made payments into Texas. The addition of these minimum contacts were necessary to establish jurisdiction.

It is not enough that the nonresident defendant merely do some act or transaction in Texas which gives rise to the cause of action. In addition, the assumption of jurisdiction must not offend traditional notions of fair play and substantial justice, consideration being given, inter alia to the quality, nature and extent of the activity in Texas and the benefits and protection of the laws of the State of Texas afforded the defendant. International Shoe Company v. Washington, supra; O’Brien v. Lanpar Company, supra. The contract in the case sub judice, with the exception of the place of payment, was referable entirely to the State of Oklahoma. Moreover, we cannot say that by making payments in Texas, the defendant was afforded any real benefit and protection of the laws of the State of Texas.

It is our opinion that on the facts before us, the mere agreement to make payments in Texas does not establish the minimum contacts with this State sufficient to satisfy the due process requirements for long-arm jurisdiction and to require the defendant to come into Texas to defend the suit. The plaintiff’s contention that permitting the suit to be prosecuted in Texas would not offend traditional notions of fair play and substantial justice is overruled. The judgment of the trial court is affirmed.


author: SHANNON, Justice.

text:
    J. Fagan DICKSON, Relator, v. Honorable Herman JONES, Respondent.
    No. 15359.
    Court of Civil Appeals of Texas, Austin.
    Nov. 24, 1976.
    J. Fagan Dickson, pro se.
    Jack D. Maroney, Scott R. Kidd, Brown, Maroney, Rose, Baker & Barber, Austin, for expected adverse parties.
   SHANNON, Justice.

Fagan Dickson, relator, has filed a motion for leave to file a petition for writ of mandamus. Respondent is Herman Jones, judge of one of the district courts of Travis County. We will deny Dickson’s motion for leave to file.

According to Dickson’s petition for mandamus, he filed a petition in the district court of Travis County on July 9, 1976, to take his deposition to perpetuate his testimony, all pursuant to Tex.R.Civ.P. 187. He declared that he anticipated filing a lawsuit against certain local attorneys: Sander Shapiro, Frank Ikard, Jr., Roy Minton, and the law firm of Clark, Thomas, Winters and Shapiro. As reason for the necessity for the perpetuation of his testimony, Dickson averred that his health was deteriorating and that, as a result, he might be incapacitated from testifying at trial time.

A hearing on the matter was set for July 29, but was reset for September 2, and then again was reset for October 7,1976. Counsel for the expected adverse parties moved the court to require that the deposition be taken before the court, that the deposition be taken in question and answer form, and that objections be ruled on by the court in absence of an agreement of counsel to the contrary. Judge Jones entered an order pursuant to counsel’s motion and set the time for the deposition to be taken before the court for November 8. Thereafter, Judge Jones, on his own motion, reset the deposition hearing for December 20, 1976.

Dickson asks this Court to issue a writ of mandamus commanding Judge Jones to enter an order stating the time and place for the taking of the deposition, or to permit the taking of the deposition by means of notice as provided generally, and further to command Judge Jones “not to make any order” which would require his deposition to be taken before the court.

The jurisdiction of the Court of Civil Appeals to issue a writ of mandamus is limited to the enforcement or protection of its jurisdiction, or to compel a district or county judge to proceed to trial and judgment. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959), Uvalde Rock Asphalt Company v. Loughridge, 423 S.W.2d 602 (Tex.Civ.App.1968, no writ), Chapa v. Betts, 534 S.W.2d 446 (Tex.Civ.App.1976, no writ), Berman v. Kirk, 543 S.W.2d 27, 2 Tex.Ct.Rpt. 151 (Tex.Civ.App.1976), Tex.Rev.Civ. Stat.Ann. arts. 1823 and 1824 (1964).

Dickson’s petition to take deposition to perpetuate testimony is for the purpose of developing and preserving evidence to be used in the trial of a case yet to be filed. Such an undertaking is not a trial, but instead is a pre-trial or discovery proceeding.

Dickson is not seeking to enforce or protect the jurisdiction of this Court, nor is he seeking to compel the district court to proceed to trial and judgment. As a result, this Court has no jurisdiction to issue a writ of mandamus. The motion for leave to file a petition of writ of mandamus is denied.

O’QUINN, J., not participating.


author: JAMES, Justice.

text:
    Melvin A. ATKINS, Appellant, v. Helen A. BEASLEY, Appellee.
    No. 5635.
    Court of Civil Appeals of Texas, Waco.
    Nov. 24, 1976.

      Daniel R. Rutherford, San Antonio, for appellant.
    O. T. Moore, Jr., Blundell & Moore, Lock-hart, for appellee.
   OPINION

JAMES, Justice.

This is a suit for rescission of a written contract, and for special damages incident thereto. After trial by jury the trial court instructed a verdict for the Defendant, from which Plaintiff appeals. We reverse and remand.

Plaintiff-Appellant Melvin K. Atkins entered into a written contract with Defendant-Appellee Mrs. Helen A. Beasley and one Ben C. Stanford (since deceased), wherein Atkins agreed to put up $11,000.00, and Stanford and Beasley agreed to work over two existing oil wells and try to get commercial production from said Wells. The contract obligated Stanford and Beasley to drill out the Hensel No. 1 well down to the Austin Chalk Formation at about 2143 feet. If oil was not produced in commercial quantities at that depth, then they were obligated to attempt production at the Pecan Gap Formation at approximately 1900 feet. Failing production in paying quantities at that depth, they were then to attempt production in the Lower Navarro Formation at about 1700 feet. Failing Commercial production at that depth, they were to attempt production in the Upper Navarro Formation at about 1400 feet. Failing Commercial production in that formation, they then were to attempt production in the La Ver-nina Formation at about 800 feet. In the event they failed to get production at said last-named depth, Stanford and Beasley were obligated to duplicate the above-described efforts in the Hensel No. 2 well.

Said contract was dated July 22, 1967, and Stanford and Beasley agreed therein to commence workover operations and drilling no later than July 24,1967. Atkins paid the $11,000.00 to Stanford and Beasley at the outset in accordance with the agreement. The contract further provided that Stanford and Beasley guaranteed Atkins the return of his $11,000.00 by way of payment from oil runs to Atkins from the Goss Lease (which Stanford and Beasley owned and was not a part of the leases which included Hensel Nos. 1 and 2 wells). In this manner it was provided that Atkins would recoup his $11,000.00 irrespective of whether Hen-sel No. 1 or Hensel No. 2 produced or not.

Pursuant to the contract, Stanford and Beasley moved equipment on location at Hensel No. 1, drilled the hole out, and attempted to produce oil in the Austin Chalk Formation. Oil was not produced in paying quantities at that depth and soon all efforts to produce oil at this or any other depth were soon abandoned. Finally in August or September 1967, all efforts at production stopped, and by the end of November or first part of December 1967, the Hensel No. 1 well had been completely abandoned. No attempt was made to work over Hensel No. 2.

When Atkins inquired of Stanford and Beasley as to why they failed to perform in accordance with the contract, they told him they had run out of money. At this point there is a conflict in the evidence as to what happened. Plaintiff testified that he was told that Hensel No. 1 needed to be acidized to make it a producing well; that since Stanford and Beasley were out of money they could not afford to acidize the well; that the parties agreed that Stanford and Beasley would assign to Atkins certain additional oil and gas leases and in return Atkins would advance additional money to have the well acidized. The leases were assigned and the well was acidized at the expense of Atkins; however, as stated Stanford and Beasley never attempted production in Hensel No. 1 in any formation except the Austin Chalk Formation and thereafter abandoned any further efforts at production. Stanford died and Atkins brought this suit against Mrs. Beasley.

Defendant disputed Plaintiff’s version as to what happened after the attempt to produce in the Austin Chalk Formation and contended that Plaintiff Atkins thereafter took over the reworking operations from Stanford and Beasley and thereby interfered with their performance of the contract. Atkins was never paid any money from the Goss Lease, the reason given by Defendant Beasley being that “he never asked for it.”

At the conclusion of the evidence and after both sides rested, the Defendant-Ap-pellee moved for instructed verdict asserting there was no evidence as to the amount of damages sustained by Plaintiff. The trial court granted Defendant’s motion for instructed verdict and entered judgment that Plaintiff Atkins take nothing against Defendant Beasley. Defendant contends that Plaintiff’s cause of action as pleaded is one for damages at law for breach of contract as opposed to a suit for rescission of the contract, an equitable remedy.

We are of the opinion that Plaintiff’s pleadings may be fairly interpreted as a suit for rescission of the contract, including a prayer for return of his $11,000.00 and recovery of special damages in the amount of $1653.11. The evidence showed without dispute that Atkins paid the $11,000.00 to Stanford and Beasley, at or about the time the contract was executed, and after efforts to get commercial production on Hensel No. 1 had been abandoned, that Atkins thereafter spent additional sums on the well in the total amount of $1653.11, and that he never was repaid any money.

Rescission is an equitable remedy. Complete and full justice is a fundamental doctrine of equity jurisprudence, and if damages as well as rescission are essential to accomplish full justice, they will both be allowed. Wintz v. Morrison (Tex.1856) 17 Tex. 372; Hunt Co. Oil Co. v. Scott (CA 1902) 28 Tex.Civ.App. 213, 67 S.W. 451, writ refused; Holland v. Western Bank and Trust Co. (CA 1909) 56 Tex.Civ.App. 324, 118 S.W. 218; Dews v. Floyd (Tyler Tex.Civ.App.1967) 413 S.W.2d 800, 806, no writ. Also see Southwestern Cooperage Co. v. Kivlen (Dallas Tex.Civ.App.1924) 266 S.W. 826, no writ.

If an executory contract is breached in a material respect, as where one party fails or refuses to perform, the other party is ordinarily entitled to rescind the agreement, except of course where such relief would be inequitable; and where breach of contract is deemed to be a sufficient ground for rescission, a total breach is not required, but on the contrary a partial breach will be sufficient if it affects a material part of the agreement, or if it clearly evidences an intention by the party in default to abandon the agreement. Hausler v. Harding-Gill Co. (Tex.Comm.App.1929) 15 S.W.2d 548, opinion approved; 13 Tex.Jur.2d “Contracts”, par. 333, pp. 602, 603.

In the case at bar, we are of the opinion and hold that Plaintiff-Appellant Atkins pleaded for rescission of the contract and for damages incident thereto; that no exceptions were levelled at the sufficiency of such pleadings by the Defendant-Appel-lee, and the disputed fact issues should have been submitted to the jury. Therefore, the trial court erred in granting Defendant-Ap-pellee’s motion for instructed verdict.

For the reasons, we reverse and remand the cause for trial on the merits.

REVERSED AND REMANDED.


author: McDONALD, Chief Justice.

text:
    LUBBOCK COTTON COMPANY, INC., Appellant, v. STARKE TAYLOR & SON, INC., Appellee.
    No. 5657.
    Court of Civil Appeals of Texas, Waco.
    Nov. 26, 1976.
    Rehearing Denied Dec. 23, 1976.
    Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Griffith & Brister, Lubbock, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Lubbock Cotton Company from $16,720 judgment against it in favor of plaintiff Starke Taylor, in suit for asserted breach of a contract to deliver cotton.

Plaintiff Starke Taylor sued defendant Lubbock Cotton Company on a written contract dated July 3, 1973 providing for the sale of cotton to be produced in the future to plaintiff. Defendant entered into contracts with various farmers for the purchase of cotton to be produced on designated farms, and then entered into contracts for the sale of such cotton to various cotton buyers, such as plaintiff.

Plaintiff alleged defendant contracted to deliver all cotton produced on T & F Farms consisting of 2,338 acres farmed by Way-land F. Taylor. It is stipulated defendant delivered to plaintiff 922 bales of cotton which was all of the cotton delivered to defendant by T & F Farms; and that 304 bales produced on such farms were not delivered to plaintiff; that such 304 bales were delivered to the landlord of such land.

The sole ultimate issue on this appeal is whether under the contract and agreement of the parties, defendant was obligated to deliver plaintiff all the cotton produced on the 2,338 acres of T & F Farms by Wayland F. Taylor, or whether defendant was obligated to deliver to plaintiff only the cotton produced on such land which was, in fact, delivered to defendant by the tenant of T & F Farms, Wayland F. Taylor.

Trial was before the court, which interpreted the contract of the parties as requiring defendant to deliver to plaintiff all cotton produced on the acreage of T & F Farms, and rendered judgment accordingly (for plaintiff for $16,720. value of the 304 bales not delivered).

Defendant appeals on 3 points contending the trial court erred in rendering judgment for plaintiff because:

1) The contract is plain and unambiguous and under such contract defendant was obligated to deliver to plaintiff only the cotton produced on the acreage of T & F Farms which was in fact delivered to defendant.
2) If the contract is ambiguous the court is required to consider the surrounding facts and circumstances, and there is no evidence or insufficient evidence to support the trial court’s construction of the contract.

On July 2, 1973 defendant Lubbock Cotton Company contracted with T & F Farms for sale and delivery to Lubbock Cotton Company of the “entire production of cotton which shall be produced, gathered and ginned” from the four farms in Lynn County operated by T & F Farms.

On the following day, July 3, 1973 defendant Lubbock Cotton Company signed a two-page contract with plaintiff Starke Taylor selling to plaintiff cotton to be produced on the T & F Farms. As noted the issue is whether such contract requires defendant to deliver to plaintiff all cotton produced on T & F Farms, or whether it requires defendant to deliver to plaintiff only such cotton produced on such land as was in fact delivered by Taylor to defendant.

The contract consists of two pages, pertinent portions of which follow:

“Lubbock Cotton Co. Inc.

********

Lubbock, Texas 79408

Geo. Cochran Vice Pres. & Mgr.

Starke Taylor & Son, Inc.

1621 Cotton Exchange Bldg.,

Dallas, Texas

Gentlemen:

This will confirm our sale to you of all cotton delivered to us by the producers from 3,198 acres of contract cotton.

TERMS: To comply with the conditions and provisions in our original contracts with each producer. . Photo copies of the original contracts are enclosed.

PRICE: Starke Taylor & Son, Inc., is to pay Lubbock Cotton Co. Inc., on the following basis for all cotton delivered on these contracts. (See Attached Schedule of Basis).

REMARKS: Lubbock Cotton Co. Inc., will pay producer for all cotton delivered to us under these contracts and will draw on Starke Taylor, & Son., Inc., for same at prices quoted on attached schedule * * *.

Starke Taylor & Son, Inc. Lubbock Cotton Co. Inc.

By /s/ Poster Miller_ By /s/ Geo. Cochran

Accepted 7-3-73 Seller”

“Lubbock Cotton Co. Inc.

********

Lubbock, Texas 79408

Geo. Cochran

Vice Pres, and Mgr.

July 3,1973

The following basis is part of Confirmation of sale of 3,198 acres of contract cotton from Lubbock Cotton Co. Inc., to Starke Taylor & Son, Inc. and is hereby attached to and affixed to said Confirmation of sale.

The contract price shall be based on net weights of the cotton with premiums in points per pound over the 1973-74 C.C.C. Loan for grade, staple and micronaire scheduled below:

Seller agrees to notify purchaser, * * of any weather or other disaster which befalls his crop as soon as possible after occurrence. Prompt delivery of cotton shall be made to the PURCHASER, in reasonable sized lots as ginned, upon receipt by SELLER of Smith-Doxey class cards * * and/this contract shall be considered fulfilled when the seller delivers all cotton produced and ginned on the above listed farm or farms from his 1973/1974 crop and/or crops, and has notified PURCHASER that the contracted cotton acreage has been harvested, ginned, and delivery to the PURCHASER completed.

The SELLER covenants, agrees and warrants that all bales of cotton delivered to PURCHASER shall be free and clear of all liens and encumbrances and that the SELLER has full authority from the landlord to sell the cotton produced on the contracted acreage. * * *.

STARKE TAYLOR & SON, INC. LUBBOCK COTTON CO. INC.

By /s/ Foster Miller_ By /s/ Geo. Cochran

Buyer Seller”

Each page refers to the other page. Both pages were prepared by Lubbock Cotton Company, and both were signed by the parties simultaneously.

Page 2 contains price information for various grades plus other information. It also contains a provision that the contract shall be considered fulfilled when the seller delivers all cotton produced and ginned on the referenced farms. Lubbock Cotton Company further expressly covenanted, agreed and warranted that it had full authority from the involved landlords, to sell the cotton produced on the contracted acreage.

As noted in the comment to the Texas Business and Commerce Code § 2.313; “Express warranties rest on ‘dickered’ "aspects of the individual bargain, and go so clearly to the essence of that bargain that words of disclaimer in a form are repugnant to the basic dickered terms”.

The cardinal rule in the interpretation of contracts is to determine and give effect to the intent of the parties as stated in the agreement. General American Indemnity Co. v. Pepper, 161 Tex. 263, 339 S.W.2d 660. If there is no ambiguity the construction of a written instrument is a question of law for the court. City of Pinehurst v. Spooner Addition Water Co., Tex., 432 S.W.2d 515. And where two writings are connected by reference, simultaneously made, and pertain to the same transaction, they constitute one instrument and will be read together. Texas State Bank of Austin v. Sharp, CCA (Austin) NRE, 506 S.W.2d 761; Board of Ins. Com’rs. v. Great So. Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803.

Applying the foregoing to the two-page contract we think the instruments express the agreement of the parties whereby all of the cotton produced on the referenced acreage, including the landlords’ portion, was contracted to be delivered by the seller to the buyer.

Defendant’s points and contentions are overruled.

AFFIRMED


author: OSBORN, Justice.

text:
    Richard YETTER et al., Appellants, v. Truus BAKER, Guardian, Appellee.
    No. 6561.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 1, 1976.
    Rehearing Denied Dec. 29, 1976.
    Richard Yetter & Associates, P.C., Richard Yetter, El Paso, for appellants.

      Roddy L. Harrison, Pecos, for appellee.
   OPINION

OSBORN, Justice.

This is a venue case. The trial Court denied the pleas of privilege filed by the makers of a promissory note to be sued in the county of their residence. We affirm.

The Appellee filed a controverting plea asserting venue in Reeves County under Subdivision 5 of Article 1995, Tex.Rev.Civ. Stat.Ann., based upon the following provision in .the note:

“For value received, I, We, or either of us, as principals, promise to pay to the order of ARTIE BAKER GUARDIANSHIP in the City of Pecos, Reeves County, Texas, the sum of Sixty Five Thousand And No/100_Dollars ($65,-000.00), * *

The Appellants contend the trial Court has fixed venue by implication, which is prohibited by the holding in Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (1948), because the reference in the note to a city and county is only for the purpose of showing the address of the payee of the note. We cannot agree. In Saigh v. Monteith, supra, the contract provided that all payments “ * * * shall be made to said Second National Bank of Houston * The Court held that this language only required payment to the named bank and concluded that where the payments were to be made was not covered by the payment provision.

In Thompson v. Republic Acceptance Corporation, 388 S.W.2d 404 (Tex.1965), the Court concluded that a note payable “in Austin” was a contract in writing that is performable in Travis County, Texas. The same conclusion has been reached in other cases where the contract provided for payment “in” a named town or county. Heid Bros., Inc. v. Smiley, 144 S.W.2d 952 (Tex.Civ.App.—Texarkana 1940, no writ); Pitt Grill, Inc. v. Albert, 432 S.W.2d 160 (Tex.Civ.App.—Dallas 1968, no writ); and Cranbrook Corporation v. Wright, 469 S.W.2d 324 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ).

In this case, the note provides for payment in a particular county and a city in the county which is the county seat. Either designation would have been adequate. Both are doubly so. Appellants’ point of error is overruled.

’The order of the trial Court is affirmed.


author: CORNELIUS, Justice.

text:
    Ex parte Arlen Y. STURDIVANT.
    No. 8450.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 7, 1976.

      Jack 0. Herrington, Lovett & Herring-ton, Clarksville, for appellant.
    Pat C. Beadle, Beadle & Beadle, Clarks-ville, for appellee.
   CORNELIUS, Justice.

This is an original habeas corpus proceeding by which Relator seeks release from a commitment for contempt issued by the District Court of Red River County, Texas.

Relator was adjudged guilty of contempt for failure to comply with a child support order. He contends that the adjudication of contempt and the resulting commitment are void because he was not given ten (10) days prior notice of the contempt hearing as required by Rule 308-A of Texas Rules of Civil Procedure and Section 14.09 of the Texas Family Code.

Relator and Mary Margaret Sturdivant were divorced by the 102nd Judicial District Court of Red River County on May 4,1973. Mrs. Sturdivant was awarded custody of the three children born to their marriage and Relator was ordered to pay certain child support payments. Subsequent to the divorce various motions for contempt and pleadings to modify the support provisions were filed. On August 30,1976, Mrs. Stur-divant filed a “Petition to Modify Judgment.” On September 20, 1976, a hearing was held in the 102nd Judicial District Court, at the conclusion of which the court entered judgment against Relator for the sum of $13,000.00 and ordered the child support payments increased to $1,502.50 per month. On October 4, 1976, Mrs. Sturdi-vant filed a petition to have Relator adjudged guilty of contempt for failure to pay' the increased child support. A hearing on the motion was set for 10:00 a. m. on October 8,1976, and on October 4th a “notice of hearing to show cause” was issued to Relator ordering him to appear at such hearing and show cause why he should not be adjudged in contempt. The notice was served on Relator at 12:30 p. m. on October 6,1976. Relator failed to appear at the appointed time but the hearing proceeded in his absence and resulted in his being adjudged in contempt. A fine of $1.00 was imposed and Relator was committed to jail for seven days and until he purged himself of contempt by the payment of $1,502.50 child support.

To secure the relief sought, Relator is required to demonstrate that the commitment itself, or the order upon which it was based, was void. Ex Parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961); Ex Parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953).

Rule 308-A specifically requires that notice of a show cause hearing in a proceeding such as this “. . . shall be served on the respondent . . . not less than ten days prior to the hearing on such order to show cause.” See also Sec. 14.09, Texas Family Code. Nevertheless, the failure to give the required notice will not render the proceeding void unless the lack of notice amounts to a denial of constitutional due process. Ex Parte Davis, supra; Ex Parte Cardwell, 416 S.W.2d 382 (Tex.1967); Ex Parte Hoover, 520 S.W.2d 483 (Tex.Civ.App.1975). We will not speculate on the amount of notice or the type of circumstances which will render a hearing after less than ten days notice merely irregular rather than void. Each case must be judged upon its own facts. Ex Parte Davis, supra. But the facts of the instant proceeding, we believe, compel a ruling that due process was denied. The notice was served less than two days prior to the hearing. Relator did not appear at the hearing either in person or by counsel. There is no indication of waiver or consent. To hold under these circumstances that Relator has been afforded due process by receiving less than two days’ notice when the rule and the statute explicitly require ten days would seem to be wholly unwarranted. Our Supreme Court in Ex Parte Davis, supra, held that a contempt adjudication entered after only two days’ notice constituted a denial of due process even though the Relator appeared at the hearing.

Relator is ordered discharged.


author: CHADICK, Chief Justice.

text:
    JOHN DEERE COMPANY, Appellant, v. Bobby G. NEAL, Appellee.
    No. 8408.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 7, 1976.
    Richard A. Sayles, Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellant.
    John H. Davis, Allison & Davis, Level-land, for appellee.
   CHADICK, Chief Justice.

This is a chattel paper case. The trial court entered a take nothing judgment and it is affirmed.

I

Appellee, Bobby G. Neal, defendant below, purchased a tractor from Hockley County Equipment Company in July, 1972. A cash down payment of $530.00 was made to the equipment company and a Retail Installment Contract-Security Agreement was executed providing for three installment payments; these to be made respectively on the 15th day of December, 1972, 1973 and 1974. The agreement allowed Neal to prepay the indebtedness before its due date. The first installment was timely paid by a check made payable to John Deere Co. and in February of 1973 Neal paid the equipment company $2,122.00 and was issued a John Deere Plow Company receipt at the equipment company place of business showing Neal’s obligation under the agreement was paid in full. However, in July of 1972, a time prior to payment of the first installment and prior to the claimed payment in full in February 1973, the equipment company assigned the Retail Installment Contract-Security Agreement to Appellant, John Deere Company, plaintiff below.

John Deere Company, the assignee, did not receive the payment made by Neal at the equipment company office in February 1973. When the second installment fell due in December of 1973 John Deere Company notified Neal of his failure to pay and Neal asked the owner of the equipment company for an explanation. John Deere Company subsequently received payment but its records do not show who made the payment. Neal testified, apparently on a hearsay basis, that the equipment company’s owner paid. When the last installment, $1,263.00, became due in 1974 and was not paid to John Deere Company suit was instituted.

II

Neal’s liability for payment of the last installment is the issue in this case. John Deere Company takes the stand that the law of negotiable instruments, Texas Business and Commerce Code, Chapter 3, applies to the transaction and that John Deere Company is a holder in due course and entitled to recover without regard to payment made to a non-holder and without necessity of notice to the maker, contending, however, that Neal had actual notice of the assignment of the chattel paper. Neal’s position is that the law of Secured Transactions, Texas Business and Commerce Code, Chapter 9, governs and that he is an account debtor authorized to make payments to the creditor-assignor until notified that payment was to be made to the assign-ee.

Ill

Section 9.102(a)(2) extends application of Article 9 “to any sale of accounts, contract rights, or chattel paper.” The written assignment in this instance purports to “. . . sell and transfer this instrument to you . . . .” Comment under the section explains that its purpose is:

“. .to bring all consensual security interests in personal property and fixtures, with the exception of certain types of transactions excluded by Sections 9-103 and 9-104, under this Article, as well as sales of accounts, contract rights and chattel papers whether intended for security or not . . . (Emphasis added.)

See also 30 A.L.R.3rd, Uniform Commercial Code — Article 9, Sec. 7. John Deere Company correctly points out that the scope of Chapter 9 is limited by Section 9.104, which states:

“This chapter does not apply
(6) to a sale of accounts, contract rights or chattel paper as part of a sale of the business out of which they arose, or an assignment of accounts, contract rights or chattel papers which is for the purpose of collection only, or a transfer of a contract right to an assignee who is also to do the performance under the contract; . .”

John Deere does not undertake to explain which of the Section 9.104(6) exemptions governs this transaction. Effort is made, however, to establish that Section 9.104(6), properly interpreted, excludes all types of nonfinaneing sales. That such comprehensive exclusion was not the intent of the draftsman seems apparent. Comment 6 under this Section states:

“In general sales as well as security transfers of accounts, contract rights and chattel paper are within the Article (see Section 9-102). Paragraph (f) excludes from the Article certain transfers of such intangibles which, by their nature have nothing to do with commercial financing transactions.”

The scope of Chapter 9 has been generally defined by Section 9.102, and specifically limited by Section 9.104. There is no apparent reason to give an expansive reading to the enumerated limitations. The transaction here does not come within these limitations, nor can it be said to have nothing to do with commercial financing.

John Deere Company’s effort to avoid application of the general statement of scope of Chapter 9 and Section 9.102 on other grounds has no persuasive merit. Lyon v. Ty-Wood Corporation, 212 Pa.Super. 69, 239 A.2d 819 (1968), is cited as lending support to its position. That ease held that an outright assignment of proceeds due under a contract, as opposed to an assignment to secure an indebtedness, is not covered by Chapter 9. The case is clearly distinguishable. Less obviously, but no less important, is the relative lack of relation to commercial financing in Lyon as compared to the case at bar.

The appellant argues that it is implied in Citizens Bank of Corrigan v. J. M. Jackson Corporation, 537 S.W.2d 120 (Tex.Civ.App.Houston — 14th Dist.1976, no writ), that Section 9.318 is operative only in instances of assignments for security purposes. This analysis is not wholly accurate. That ease dealt with an assignment of invoices by a debtor as security for a loan, and Section 9.318(c) was held applicable. But the case is not concerned with the sale of chattel paper governed by Section 9.102 and Section 9.104.

In summary, this record presents an instance of an assignment of chattel paper. The assignment shows on its face that it is a part of a commercial financing transaction. Chapter 9 should apply.

IV

Neal contends that he discharged his indebtedness by making payment to his creditor, the assignor of the chattel paper, and takes refuge in Section 9.318(c), which states that the account debtor is authorized to pay the assignor until the account debtor receives notification that the account has been assigned and that payment thereafter is to be made to the assignee. See 79 C.J.S.Supp. Secured Transactions § 94, p. 302. John Deere Company attempts to avoid such provisions of the law by arguing in its reply brief that the appellee had notice of the assignment. John Deere Company admits that it has no direct or written evidence to show notice was given Neal. However, because Neal made his first installment payment by check payable to John Deere Company rather than to Hock-ley County Equipment Company, the assignor, John Deere Company, asserts that this fact together with other facts in the record established required notification.

Neither Section 9.318(c) nor Comment 3 thereunder describes with specificity the requisites of notice. The text of the section makes it clear that notice of assignment without notice that future payments are to be made to the assignee will not impose double liability on the obligor who pays an assignor. John Deere Company urges that bare actual notice of assignment is sufficient. Manes Const. Co., Inc. v. Wallboard Coating Co., Inc., 497 S.W.2d 334 (Tex.Civ.App.Houston—14th Dist.1973, no writ), is cited as authority. In that case an account debtor who had actual notice by telephone and by letter was subjected to double liability when he persisted in making payments to the assignee.

Knowledge of facts from which Neal should have concluded that John Deere Company had a right to collect the indebtedness in question because of some arrangement with the equipment company falls short of the requirement of Section 9.318(c) that payment is to be made to the assignee. It is apparent from the record that Neal is an intelligent man but he is not shown to be so experienced in secured transactions as to be alerted by the facts in evidence that John Deere Company was in fact requesting payment to be made to it as assignee of the chattel paper. The cited section emphasizes the necessity of the assignee making its rights clear to a debtor by providing that notice to a debtor will be ineffective which does not reasonably identify the rights assigned. The trial judge’s construction of the evidence appears reasonable and it cannot be said as a matter of law that Neal had actual notice at any relevant time that the John Deere Company, as assignee, required Neal to make payments directly to it.

V

No findings of fact or conclusions of law were requested or filed. In such cases, an appellate court is bound to affirm the judgment if it can be sustained on any reasonable theory supported by the evidence and authorized by law. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962); 4 McDonald’s, Texas Civil Practice, Sec. 16.10(d). No error requiring reversal of the case is found. Accordingly, the judgment of the trial court is affirmed.

      See Tex.Bus. & Comm.Code Ann. Sec. 9.105(a)(2) for definition.


author: WALTER, Justice.

text:
    William E. VLASEK, Sr., Individually and as next friend for William E. Vlasek, Jr., Appellant, v. Bedros K. SARKISSIAN, Appellee.
    No. 4970.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 9, 1976.
    Rehearing Denied Jan. 6, 1977.
    Sam Gross, Benbow & Gross, San Antonio, for appellant.
    C. G. House, House, Mercer, House, Brock & Wilson, San Antonio, for appellee.
   WALTER, Justice.

William E. Vlasek, Sr., individually and as next friend for William E. Vlasek, Jr., a minor, 12 years of age, filed suit against Bedros K. Sarkissian under Article 6701b, V.A:C.S., for damages resulting from an automobile accident.

Defendant’s motion for summary judgment was granted and plaintiffs have appealed.

Their only point of error is the court erred in granting summary judgment because the minor plaintiff was not a guest within the meaning of the act.

Attorneys for the Vlaseks waived their allegation of gross negligence and their case was predicated on the issue the minor was not a guest within the meaning of the act.

This accident occurred in August, 1972, and at that time Art. 6701b, V.A.C.S., was in part as follows:

“Liability for injuries to gratuitous guest in motor vehicle limited; public carrier and motor vehicle demonstrators excepted
Section 1. No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.”

Appellant contends Vlasek, Jr., was an unwilling guest, a nonassentive passenger and was riding with Sarkissian under duress, and these matters would exclude him from coming under the guest statute.

The summary judgment proof conclusively shows Vlasek, Jr., was voluntarily riding in Sarkissian’s car without payment for such transportation. The boy’s mother allowed him to ride with Sarkissian so he would not be forced to stay at home by himself while she was working.

In Linn v. Nored, 133 S.W.2d 234 (Tex.Civ.App.—Austin 1939, writ dism’d jdgmt. cor.), the court said:

“As used in the statute the term ‘guest’ has its general and common understanding, and means that one is a guest who is the recipient of the voluntary hospitality of the owner or operator of the automobile.
Manifestly our statute makes no distinction between a drunk and sober person, or between minors and adults, or same and insane persons; and since the term ‘guest’ is used in its general sense, we are of the view that it should apply to a person under the influence of intoxicating liquor, no question of duress arising

In Warner v. Rice, 541 S.W.2d 896 (Tex.Civ.App.—Eastland 1976, no writ), this court said:

“Plaintiff next asserts that the Guest Statute should not apply to small children who obviously are not involved in any collusion or fraud. This court in Bryant v. Adair, 490 S.W.2d 950 (Tex.Civ.App.—Eastland 1973, writ ref. n. r. e.) held that minors were not excepted from the statute. See also: Reed v. Hicks, 489 S.W.2d 958 (Tex.Civ.App.—Amarillo 1973, writ ref. n. r. e.); and Linn v. Nored, 133 S.W.2d 234 (Tex.Civ.App.—Austin 1939, writ dism’d jdgmt. cor.).”

Appellant’s point of error is overruled and the judgment is affirmed.


author: RALEIGH BROWN, Justice.

text:
    INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS et al., Appellant, v. Ragan E. GRAHAM, Appellee.
    No. 4902.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 9, 1976.
    Rehearing Denied Jan. 6, 1977.
    Marvin B. Peterson, Combs, Archer & Peterson, Houston, for appellants.
    John L. Russell, Ragan, Russell & Rorschach, Raybourne Thompson, Jr., Vinson, Elkins, Searls, Connally & Smith, Houston, for appellee.
   RALEIGH BROWN, Justice.

Ragan E. Graham sued International Association of Heat & Frost Insulators and Asbestos Workers Local Union # 22, Pacific Mutual Life Insurance Company, The Houston Insulation Contractors Association and its individual members, The Joint Pension Committee and its individual members including Herbert Larberg, Carl J. Shilcutt, A. B. Willis, Jr., Earl B. Herring, Richard J. Lampton and Bill Dailey. Plaintiff alleged he had wrongfully been denied pension plan benefits. Trial before the court resulted in a judgment for Graham in the sum of $11,-072.25 for sums due through June, 1975, and decreed monthly benefits from that date for Graham and upon his death for his widow. International Association of Heat & Frost Insulators and Asbestos Workers Local Union # 22 appeals. We affirm.

Appellant presents fourteen no evidence points of error, but states:

“This case involves questions of law that have never been passed on or decided by the Texas Courts. The principle question that must be answered on this appeal is whether the eligibility requirements for past years credited service under the Appellant’s pension plan were so arbitrary, capricious and unreasonable as to deprive the Appellee of a property right. The answer to that question will effectively dispose of all of the issues contained in this appeal.”

The pension plan, effective July 1, 1960, provided that employees could claim qualifying credit for work performed for employers with contracts with the union during their lifetime before the plan came into existence. This applied to years worked prior to July 1, 1958. The plan, however, required employees to be working for a contributing employer on January 1, 1960, to receive credit for work performed prior to July 1, 1958. If not so employed, the employee could receive credit only for work performed after July 1, 1958. It is undisputed Graham was not employed by a contributing employer on January 1, 1960.

Graham worked on insulation jobs at various cities. He began working under the union by permit in 1939. That year he applied for membership in Local # 22 and applied for membership in Local # 22 on three or more occasions beginning in 1942. In 1942, at the recommendation of union business agents from Houston and San Antonio, Graham joined Local # 87.

Although Graham never became a member of Local # 22, he, as a “Traveler” working out of assignment from Local # 22 and as a dues paying member of the union, established, under the pension plan, ten years credited service between 1942 and 1958 and eight years between July 1, 1958 and April 1, 1969. “Travelers” were told where they could work by Local # 22 and were assigned work by the Local. The only time Graham did not work out of Local # 22 was when they refused him work. The pension plan began receiving funds in 1958 based on hours worked by employees from contributing employers. Graham retired April 1, 1969.

Brooks Baker, an official of Local # 22 who participated in its writing, testified the pension plan was written during the period 1958 and 1960 when it was put in final form and published. During that period most of the union members, if not all, who were not members of Local # 22 had to leave the Houston area for work because there was no work being assigned by Local # 22 to them.

Baker also testified:

“Q You and those others drafting this pension plan, there in 1958 and ’59, very well knew that you were writing out mostly nonlocal members, who would otherwise qualify, by simply saying if they didn’t have a job on January 1, 1960, they wouldn’t be an employee, if that is what you said; isn’t that right?
A This is about right.
Q And you were fully aware of that when you were writing that — writing that out; right?
A Right.
Q But going back there to ’58 and ’59 and ’60, when all these people who had worked between 1940 and 1960, who no longer had a job — who no longer had a job there, whether it was temporary or permanent, you were aware that they were being— they were members of the union, weren’t they?
A Well, some may have been. Some may have not been.
Q Well, such as Mr. Graham — Ragan Graham; he was a member of that union, wasn’t he?
A He wasn’t a member of my union, no.
Q He wasn’t a member of the local, but he was a member of the union?
A He was a member of the International.
Q Yes, sir.
A Right.
Q And you were aware that he was being deprived — people such as him were being deprived?
A We never know when these people are ever coming back our way. A lot of them, I haven’t seen in twenty years. They may never come back.
Q But you were aware that they were being deprived of qualifying years; whereas, others — both members and nonmembers — were being given those qualifying years by happenstance, weren’t you?
A I agree.
Q —you had been in office for how many years?
A Seventeen.
Q For seventeen years. All right. In 1967, how many members, to your knowledge, were receiving — how many employees, to your knowledge, were receiving benefits under the pension trust, approximately?
A It would be purely a guess.
Q What is your best guess?
A My guess would probably be forty, or somewhere in that range.
Q About forty?
A Approximately.
Q Do you know how many of the forty, in ’67, were travelers?
A None of them.
Q Do you know how many of those pension beneficiaries were travelers in ’69 — no, in ’72, when you came into office?
A None of them.
Q Do you know how many were travelers, of the eighty, currently?
A Not a one.
Q So, in other words, there is not one member of the union who was a traveler, working through this local, that has received pension benefits as a consequence of the pension trust here in litigation?
A No, sir, there hasn’t been one yet.
Q Do you know that he only got eighteen years’ credit, if he got the ten years before January 1, 1960? Only eighteen years’ credit between 1941 —I mean, only ten years’ credit between 1941 and 1960, didn’t he?
A This is right. But he got that because he wanted to work here rather than work in his home local.
Q Yes, sir. And you all were glad to have him?
A Sure.
Q And the employees he worked for from January — July 1,1958 forward, paid money into the pension plan for the hours he worked, didn’t they?
A This is right.
Q And in doing so, they enriched the pension plan, didn’t they?
A This is correct.
Q And you knew that would happen on July 1, 1958 and January 1, 1960, didn’t you?
A This is the way the business works.
Q Yes, sir. And you knew that if you wrote it when he wasn’t here with jobs, that other members of the local would get the benefit of his pension payments by the employer, didn’t you?
A You have to assume the turnovers that we have had over the years will, more or less, continue.
Q But you knew that those payments would not benefit Ragan Graham at that time and thereafter, and would benefit other members of your local union, didn’t you?
A Only those people who did not stay long enough to qualify.
Q Yes, sir. But those people, such as Ragan E. Graham, who was then already fifty-seven or -eight years old — or fifty-five years old — and people older than fifty, would not get the benefit unless they could work far beyond age sixty-five; is that right?
A This is the end result. You are right.”

Marvin Tripp was district manager for Pacific Mutual Life Insurance Company. He described the service provided the trustees of the pension plan by his company as follows:

“A We invest the funds. Pacific Mutual handles the investment of the funds, both in equities and the guaranteed account. And we also do the actuarial work on the plan, annual actuarial certification, to aid the trustees in determining the benefits they wish to provide. And we also handle the drafting of the program, attend the trustees’ meetings.
Q The drafting of the program?
A Yes. The drafting of amendments for it.
Q Of the amendments?
A Uh-huh.
Q And, of course, from time to time, you make funds available to retiring beneficiaries by paying them monthly sums?
A The trustees will send us a directive and tell us to pay John Jones, or whoever it might be, so much money per month. And with that, why, we start making payments from their funds directly to the man receiving benefits.
Q So, these funds are not your funds at all? They are their funds?
A That’s correct.
Q And you are only servicing them, as an agent?
A As—that’s correct.”

This witness, appellants’ expert as to the proper drafting and management of pension funds, during a regular meeting of the Trustees of the pension fund on November 4,1969, offered an amendment to the Trust Agreement that provided past service credits to be given for employees who were employed at anytime during the period beginning July 1, 1958, and ending December 31, 1960.

The appropriate standard of review for this court so far as trustees’ action in establishing terms of a trust for union pension plans is whether their action was unreasonable, arbitrary and capricious. Roark v. Lewis, 130 U.S.App.D.C. 360, 401 F.2d 425 (1968).

The economic conditions as of January 1, 1960, a matter well known to the Trustees, made the availability of work for Graham, a “Traveler”, on that day practically non-existent. His willingness and readiness for work, his past work history and his past contribution to the pension fund were of no consequence. To exact a requirement, irrespective of all other matters that Graham must be employed by a contributing employer on January 1, 1960, when the evidence shows that the Trustees knew that no “Travelers” were so employed, is unreasonable, arbitrary and capricious. Appellants’ own expert did not recommend such a limiting date. Since Graham meets all the other requirements, he is entitled to a pension.

We have considered only the evidence and inferences tending to support the findings of the court and disregarded all the evidence and inferences to the contrary in considering all the points of error presented by appellant. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974). They are overruled.

The judgment is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Robert F. HARDBERGER and Melissa Hardberger, Appellants, v. Daniel E. O’DELL, Appellee.
    No. 12474.
    Court of Civil Appeals of Texas, Austin.
    Dec. 15, 1976.

      Paul Andrew Míreles, Hardberger, Bran-ton & Herrera, Inc., San Antonio, for appellants.
    Scott R. Kidd, Brown, Maroney, Rose, Baker & Barber, Austin, for appellee.
   PHILLIPS, Chief Justice.

This suit involves a rear-end collision between two automobiles, one, a Ford Pinto, driven by appellant Melissa Hardberger, and the other driven by appellee, Daniel O’Dell. Melissa’s father, Robert F. Hard-berger, is also an appellant as the car Melissa was driving at the time of the accident belonged to him.

While Melissa was stopped in the left-hand lane of an intersection waiting to make a left turn after the oncoming traffic had cleared, appellee rear-ended her vehicle injuring her and damaging the automobile she was driving.

Appellant pleaded as specific acts of negligence, appellee’s failure to keep a proper lookout, failure to timely apply his brakes, excessive speed under existing conditions, failure to bring his vehicle to a stop before he collided into the rear of appellant’s car, failure to have his vehicle under proper control by not turning his vehicle to the right or left in an attempt to avoid the collision, and following too closely.

When appellants rested, appellee moved for an instructed verdict on the basis that there was no evidence to support the submission of any issues as to appellee’s negligence.

The court granted appellee’s motion for an instructed verdict and entered a take-nothing judgment. We reverse the judgment of the trial court and remand the case for trial.

Appellants’ point of error is that the trial court erred in instructing the verdict because there was sufficient probative evidence to support the submission of issues of negligence, proximate cause and damages to the jury. We agree.

In determining whether the district court erred in instructing the verdict, the testimony must be considered in the light most favorable to the losing party. Conflicts in the testimony must be disregarded, and every intendment reasonably deducible from the evidence must be indulged in favor of such party and against the verdict. Anglin v. Cisco Mortgage Loan Company, 135 Tex. 188, 141 S.W.2d 935 (1940).

At the time Miss Hardberger was rear-ended, it was a dark and misty night, and the rear blinker light of her automobile was on as she waited to make the turn. She had also checked her rearview mirror to assure her safe stop. There is also evidence of injury to Miss Hardberger and damage to the car she was driving and to appellee’s car.

A question of fact as to the existence of negligence is usually presented when one motor vehicle overtakes and strikes one in front of it going in the same direction. The collision itself is some evidence of negligence on the part of the driver who strikes a preceding car from the rear. Renshaw v. Countess, 289 S.W.2d 621 (Tex.Civ.App.1956, no writ); Miller v. Wagoner, 356 S.W.2d 363 (Tex.Civ.App.1962, no writ); Boddy v. Canteau, 441 S.W.2d 906 (Tex.Civ.App.1969, writ ref. n. r. e.). Also see 2 Blashfield, Automobile Law and Practice § 113.12 (3rd Ed. 1965). We are aware that several cases make the statement that a rear-end accident in itself is not proof of negligence; however, each of these cases can be distinguished under its own peculiar facts.

Viewing the evidence most favorable to appellant, we are of the opinion that the collision itself was some evidence of appellee’s negligence, and, as such, the court erred in instructing the verdict.

We overrule appellee’s counterpoint that the trial court was correct in granting appellee an instructed verdict, since appellants only proved an occurrence and have not pleaded the theory of res ipsa loquitur. Res ipsa loquitur has no application here as the facts of this case indicate evidence of negligence that should have been passed upon by the trier of facts.

We also overrule appellee’s counterpoint that the trial court correctly granted appellee an instructed verdict as to appellant Robert F. Hardberger, in that there is no competent evidence of the damages to his vehicle.

Appellants presented testimony of damage to their automobile by the body shop manager of a local Oldsmobile-Cadillac agency. The witness was permitted to testify without objection as to the cost of repairing the automobile to its former state. On cross-examination, the body shop manager conceded that he was not an expert in the repair of Ford Pintos and that his estimation of the damages was a “guesstimate.” In our opinion, the witness’s statement goes to the credibility and weight of his testimony. His testimony on direct was some evidence of damage to the automobile.

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

      . See Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195 (Tex.Com.App.1937, opinion adopted); O’Neill v. Craig, 493 S.W.2d 898 (Tex.Civ.App.1973, writ ref. n. r. e.).