author: MURRAY, Justice. CADENA, Chief Justice.

text:
    Lewis J. BOLLI, Appellant, v. Gary L. PREWITT, d/b/a the Corvette Shop, Appellee.
    No. 15811.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 25, 1978.

      Barry Snell, Bayne, Snell & Krause, San Antonio, for appellant.
    Pepos S. Dounson, Jerry Simon, San Antonio, for appellee.
   MURRAY, Justice.

Lewis J. Bolli, appellant, sued Gary L. Prewitt, d/b/a The Corvette Shop, appellee, for damages. The basis of the suit was that appellee engaged in a deceptive trade practice by misrepresenting to appellant that appellant’s automobile would be covered by insurance while on defendant’s lot for sale. Appellant alleged alternatively that appellee was negligent in failing to exercise ordinary care to prevent the theft and destruction of the automobile. After a nonju-ry trial the court entered judgment that appellant take nothing, from which judgment appellant timely perfected this appeal. The record on appeal in this case does not contain a statement of facts.

Appellant’s first point of error is “The trial court erred in eliminating Plaintiff’s cause of action for deceptive trade practices without ruling on whether Defendant made misrepresentations to Plaintiff concerning insurance.” At the conclusion of the trial the court announced from the bench:

THE COURT: I still wonder if Courts such as this present Court presiding possesses enough wisdom to sit in attempted judgment under such facts as has been presented today; and I also wonder that a judge who retired two years ago is still trying cases. It makes you wonder if the Judge has wisdom and sense enough to sit up here and be a judge in a case. I still wonder about myself, why I do this.
This case, Gentlemen, has been very disappointing, in many respects, to the Court. Somebody hasn’t told the entire truth here today. I don’t say that it’s the first case that I ever heard like that, but somebody hasn’t told the truth here today. Asfar as the insurance is concerned, Mr. Prewitt knew that he didn’t have any insurance until after he had already taken into his position, for purpose of selling, Mr. Bolli’s car; because the policy, when he did take the car for repairs, was taken subsequent to the transaction of the actual bailment that was created by virtue of the act. I have studied the cases and studied the pleadings and listened to the case law as pronounced by counsel; and I think that in view of the discrepancies in the testimony here today, that after hearing some of it, you would almost subscribe to remedial legislation that when people told opposit tales about matters, that they be compelled to take a polygraph test and that the Court be bound by it. I would almost advocate that, and I have never said that before.
Now, examination of the Petition on which the plaintiff relies for recovery contains several counts; not major counts, but alternative matters of relief. I have decided that in view of the many discrepancies, to eliminate from the cause of action the question of insurance; just completely eliminate it. I’m not going to find that there was any representation that there was any insurance or that there was. I’m going to eliminate that. That’s just entirely out of the case. I’m going to forget insurance. I don’t think, in the first place, that it’s reasonable to think that a person would own a valuable automobile like Mr. Bolli owned without having some insurance on it. That’s what you or I would do. We would carry some insurance on the car. But that’s neither hear nor there. I’m eliminating that from the cause of action. That’s got nothing to do with my decision and I want that straight in the record.
In paragraph six of the Plaintiff’s Petition, he has a count of negligence in failing to exercise ordinary care to prevent the theft and destruction of plaintiff’s automobile, and that such negligence was the direct and proximate cause of the automobile, to plaintiff’s damage, in the sum of $5,000.00. Well, now, the many cases that I have tried and in my ordinary business transactions and as a private citizen, I have observed, many times, public automobile agencies, public places where automobile sales were conducted, both outside and inside buildings. Certainly, it’s not unusual and customary for a person engaged in the business which the defendant was to have two watch dogs on duty at all times to attempt to thwart the efforts of thieves who, in the dead of the night, would come to steal automobiles of the owner. But on the police report, as to the keys in the car; as many keys as there are in existence and as many keys as known racka-teers and automobile thieves have, it’s just lucky that the burgular — most of the burgulars [sic] that are really proficient in their business, they can reach on their string of keys and put a key in a lock on most any door you own, unless it’s a bolted lock inside. Likewise, when you figure the statistics that about every eleven minutes there’s a car stolen in the United States, there has to be something in the way of keys that the police — the police report doesn’t say “the keys that are in the car.” As I saw it, it was actually the keys that belonged to the car. The testimony still is undisputed that the keys were locked in the office. I don’t think that the defendant was guilty of a lack of ordinary care, and that’s all the law requires him to do. He doesn’t have to give extraordinary care. He didn’t have to exercise that type of care, which is required in some cases that we are compelled to pass on damage issues. All that is required is to do that which an ordinary and prudent person would do or would not do under the same or similar circumstances. And I think that the negligence that’s alleged in Paragraph six is found wanting in this case and the claim is denied on the strength of Paragraph six of the Petition.
In the further alternative, in Paragraph seven of the Plaintiff’s Petition, he alleges a consignment, which is a rare pleading. He alleges that the car was consigned to the defendant for the purpose of sale. Well, there was no outright sale of it, and consignment transactions asfar as vehicles are concerned are fairly usual; but in order to constitute a recovery by virtue of the assignment agreement, it becomes incumbent upon the defendant to exercise ordinary care over the automobile and that his failure to do so would be a breach of the consignment agreement. I think that’s a proper statement of the law as far as the law on consignment is concerned, and I think that the Court has already discussed at length the matter of ordinary care as enunciated in connection with Paragraph six of the Petition. The Court, therefore, denies recovery for the plaintiff on the basis of alternative allegations in Paragraph seven of the Petition.
In the last alternative pleading, the defendant, of course, pleads the matter which I first discussed, which I have said that I was not going to consider because of the wide disparity in the testimony concerning the insurance and not withstanding the authorities that have been cited from this jurisdiction; that is some of our Supreme Court cases and Commission of Appeals cases and other jurisdictions, also. I’m not giving consideration to the insurance. I think that there is some distinction here in this case to the matter of — you just — you have got to couple the matter of the sign on the door as to “not responsible for fire or theft” with the fact that that caused the defendant to owe same special duty to the balor [sic] in order to recover on the insurance. It was certainly noticable [sic]. Anyone that can read the English language — and you take something, even for storage, and it says “We won’t be responsible to you for fire or theft”, I think that would put you on inquiry and you say,- “Well, if you have got insurance, what have you got that sign up there on the door for? Why have you got a sign that says that your’re not responsible for fire or theft? I want to know why that’s up there. I want to know if I’m covered. Why did you tell me that and, in the next breath, you write all over your door that you’re not responsible for fire or theft?”
This is a hard case, Gentlemen. It’s very difficult, and someone is going to take a losing. Anyone—I think that the Plaintiff should have been more diligent in the matter of protection of his rights. I can not find negligence on the part of the defendant. I can not find any violation of the Texas Deceptive Trade Practices and Consumer Trade Act. For that reason, the Court is going to adjudge that the plaintiff take nothing by virtue of the suit and that the defendant be released from this suit, together with all costs herein expended. Prepare your judgment on it, please, and submit it for entry. You’re excused.

It is the position of appellants that the above quoted announcement by the judge from the bench denied him a trial on his cause of action for deceptive trade practices. We disagree. The above pronouncement from the bench by the judge amounts to no more than a statement that he intends to enter judgment for the defendant.

Appellant next complains of the trial court’s failure to make a finding of fact as to whether appellee engaged in a deceptive trade practice by misrepresenting to appellant that appellant’s automobile would be covered by insurance while on defendant’s lot for sale. The record in that regard shows that the appellant timely requested findings of fact. The amended findings of fact filed by the judge failed to contain a finding as to whether appellee warranted or represented that appellant’s car would be covered by insurance while at defendant’s place of business for sale. The record shows that after the amended findings of fact were made and filed by the court, the appellant failed to request any specific further, additional, or amended findings in compliance with Rule 298, Tex.R.Civ.P. (1978). We hold that because of this failure, appellant has waived his right to complain on appeal of the trial court’s failure to make designated findings and conclusions. Cortez v. Corsi, 513 S.W.2d 648 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Vanity Fair Properties v. Billingsley, 469 S.W.2d 453 (Tex.Civ.App.—San Antonio 1971, writ ref’d n. r. e.).

An omitted unrequested finding will be presumed in support of the judgment. Tidwell v. Lange, 531 S.W.2d 384 (Tex.Civ.App.—Waco 1975, no writ).

All of appellant’s points of error have been considered and all are overruled. The judgment of the trial court is affirmed.

CADENA, Chief Justice.

I concur in the result on the ground that, without a statement of facts, this Court is unable to determine the validity of appellant’s complaints.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    Jack F. BAGWELL et ux., Appellants, v. Veda Marie LOTSPEICH et al., Appellees.
    No. 1070.
    Court of Civil Appeals of Texas, Tyler.
    Jan. 26, 1978.

      Bill F. Griffin, Jr., Center, for appellants.
    Tom Bankhead, Bankhead & Davis, Carthage, for appellees.
   MOORE, Justice.

The opinion heretofore delivered on December 15, 1977, is hereby withdrawn and the following is substituted in lieu thereof.

This is an appeal from a summary judgment. Plaintiffs, Jack F. Bagwell and wife, Beatrice, brought suit to recover title to and possession of a 150.56-acre tract of land against defendant, Veda Marie (Lotspeich) Wilson, Individually and as Executrix of the Last Will and Testament of Wheeler Lotspeich, deceased, and as community survivor of the community estate of herself and her deceased husband, Wheeler Lot-speich. Also named as defendant was Tommy Wilson, her present husband. As grounds for a cause of action plaintiffs alleged that they conveyed the land in question to defendants on May 14, 1962, and at the time of the conveyance defendant Veda Marie and her deceased husband agreed that they would hold the land in trust for the plaintiffs and would reconvey it to them. Plaintiffs sought to recover title and possession on the basis of the trust agreement. In the alternative, plaintiffs sought to recover title and possession in an action in trespass to try title. Defendants answered with a general denial and set up a plea in bar alleging that plaintiffs’ claim was barred by the four-year statute of limitations. The cause came on for hearing on a motion for summary judgment filed by defendants. After the hearing the court granted the motion and entered a take-nothing judgment against plaintiffs, from which ruling plaintiffs perfected this appeal.

We reverse and remand.

The record reveals that plaintiffs filed their original petition on October 21, 1963. The suit remained on file for more than five years before plaintiffs requested the issuance of citation for personal service on May 13, 1969. On that date plaintiffs filed their first amended original petition without making any substantive changes in their original allegations and issued citation for personal service.

In their motion for summary judgment, defendants alleged that plaintiffs’ primary claim seeking to recover title based upon an express trust is barred by the four-year statute of limitations. Defendants further alleged in their motion for summary judgment that plaintiffs’ alternative plea in trespass to try title is premature because the deed they executed to defendants has never been cancelled or set aside. Therefore, they alleged the deed constitutes an impediment to plaintiffs’ suit in trespass to try title until the outstanding deed is can-celled or set aside. Attached to their motion was a copy of plaintiffs’ first amended original petition and the citation of service showing that the same was not issued until May 13,1969. Also attached to defendants’ motion for summary judgment was a certified copy of the warranty deed by which plaintiffs conveyed the land in question to defendants. In reply to the motion plaintiffs filed a pleading denying defendants’ allegations, but offered no summary judgment proof.

Plaintiffs argue first that defendants’ exhibits, consisting of plaintiffs’ first amended original petition and the citation issued thereon and the certified copy of the warranty deed executed by plaintiffs to Mr. Lotspeich, deceased, and wife, Veda Marie, are inadmissible under Rule 166-A(c) and (e), Tex.R.Civ.P. They argue that such exhibits should not have been admitted since they were not in the form of affidavits, and that therefore the summary judgment was improper. We do not agree. Rule 166-A(b) provides that the defending party may move for summary judgment with or without supporting affidavits. The plaintiffs’ first original petition and the citation would, of course, be admissible as part of the official record. The certified copy of the deed would also be admissible without the necessity of its being incorporated within a sworn affidavit. 4 McDonald, Texas Civil Practice sec. 17.26.5 at 143 (1971 ed.); see also Whelan v. New Mexico Western Oil & Gas Co., 226 F.2d 156 (10th Cir. 1955). It follows that the summary judgment proof was admissible. Consequently, we will proceed to determine whether the summary judgment is sustainable under the undisputed facts presented by the record.

Where the defendant files a motion for summary judgment the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiffs’ cause of action. Rule 166-A, Tex.R.Civ.P.; Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). A summary judgment should be granted and, if granted, should be affirmed only if the summary judgment record establishes a right thereto as a matter of law.

Plaintiffs contend that the trial court erred in sustaining the summary judgment on the basis of the four-year statute of limitations as alleged by defendants in their motion for summary judgment. We agree with this contention. Defendants alleged that plaintiffs’ primary cause to enforce the alleged trust agreement was barred by the four-year statute of limitations provided for in Article 5529, Tex.Rev.Civ.Stat.Ann., which reads as follows:

“Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterwards.”

This is not a suit in which plaintiffs seek to set aside or cancel the deed which they executed to defendants, and defendants so admit in their brief. Nowhere did plaintiffs allege the deed was executed because of fraud, accident or mistake. Although plaintiffs did allege in their primary suit seeking to enforce the trust agreement that the deed should be cancelled because it created a cloud on their title, it is obvious from their pleadings as a whole that they were seeking to establish title on the basis of the trust agreement. What they sought to do in their primary action to enforce the trust agreement was to subordinate the legal title conveyed to the defendants to the superior equitable title which they held as a result of the alleged trust agreement. The fact that they set out facts which constituted their cause of action in this regard did not change the character of their suit to one seeking cancellation of the deed; it was for the recovery of real estate, just as much as their alternative action in trespass to try title. Stafford v. Stafford, 96 Tex. 106, 70 S.W. 75 (1902); Carl v. Settegast, 237 S.W. 238 (Tex.Comm’n App.1922, opinion adopted).

It is settled law that the four-year statute of limitations, as provided for in art. 5529, supra, is not applicable to an action for the recovery of land accruing under and based upon an expressed trust. 57 Tex. Jur.2d Trusts sec. 242, p. 621; Stafford v. Stafford, supra; Carl v. Settegast, supra; Hall v. Rawls, 188 S.W.2d 807 (Tex.Civ.App.—Beaumont 1945, writ ref’d w.o.m.). Therefore, despite the fact that over four years had accrued between the time of filing of suit and issuance of citation, the four-year statute would not stand as a bar to the plaintiffs because the plaintiffs’ primary suit is for the recovery of real estate. It follows that the summary judgment cannot be sustained on the theory that the plaintiffs’ cause of action is barred by the four-year statute of limitations.

Next, plaintiffs contend that the trial court erred in sustaining the summary judgment on the ground that the deed which they executed to defendants constitutes an obstacle to their alternative suit in trespass to try title. Defendants argue that the plaintiffs cannot recover on their alternative suit, as a matter of law, because the outstanding deed constitutes an impediment to their maintaining an action in trespass to try title. They argue that as a prerequisite to the action in trespass to try title, plaintiffs were required to plead and prove as a matter of law that the outstanding deed in the defendants had been previously cancelled and set aside. We find no merit in this contention.

The record reveals that plaintiffs’ alternative action is limited to a trespass to try title suit and is framed in the formal manner as required by Rule 783, Tex.R. Civ.P. Under such general averments of ownership the plaintiff may show whatever title he has to the property, including equitable title, without specially pleading it. 56 Tex.Jur.2d Trespass to Try Title sec. 110, p. 227. He would have such right because the interest of the cestui que trust under an expressed trust agreement is an equitable title and not a mere equitable right. Proof of equitable title is sufficient to support an action in trespass to try title. 56 Tex. Jur.2d sec. 10, pp. 78-80.

In the event plaintiffs should later elect to proceed to trial on their action in trespass to try title, they would then be authorized to offer proof showing equitable title by reason of the trust agreement. Since their suit in trespass to try title would constitute a suit for equitable title, they would not be obligated first to set aside the deed which gave rise to the outstanding legal title. 56 Tex.Jur.2d sec. 10, p. 79; Hall v. Miller, 147 S.W.2d 266 (Tex.Civ.App.—San Antonio 1941, writ dism’d judgmt cor.); Morrison v. Parish, 384 S.W.2d 764 (Tex.Civ.App.-Texarkana 1964, writ dism’d). Plaintiffs would not be seeking a repudiation of the deed, but would be seeking only to subordinate the legal title theretofore conveyed to the superior title which they held by reason of the alleged trust agreement. The equitable title arising by reason of the alleged trust agreement is in no way inconsistent with the deed to the defendants. While their title would depend upon the establishment of the trust agreement, the deed in question constitutes no barrier or impediment to their action in trespass to try title.

This is not a case such as Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025 (1923) or Goodwin v. City of Dallas, 496 S.W.2d 722 (Tex.Civ.App.-Waco 1973, no writ), where it was necessary, in order to establish title, to set aside a voidable deed which stood as an obstacle to the plaintiffs’ recovery. It follows that the deed in question presents no obstacle or impediment to the plaintiffs’ cause of action in trespass to try title and therefore the summary judgment cannot be sustained on such theory.

This brings us to defendants’ contention that plaintiffs’ primary suit to enforce the trust agreement, as well as their alternative suit in trespass to try title, rests on a parol trust agreement and is therefore barred by art. 7425b-7, Tex.Rev.Civ.Stat.Ann. The statute relied on by defendants, known as the Texas Trust Act, reads in part as follows:

“Provided, however, that a trust in relation to or consisting of real property shall be invalid, unless created, established, or declared:
1. By a written instrument subscribed by the trustor or by his agent thereunto duly authorized by writing; . . . .”

An oral trust relating to real estate would be prohibited by the foregoing statute. See Morrison v. Farmer, 147 Tex. 122, 213 S.W.2d 813 (1948); Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985 (1948); Vector Corp. v. First State Bank & Trust Co. of Port Lavaca, 430 S.W.2d 536 (Tex.Civ.App.—Waco 1968, writ ref’d n.r.e.). A trust may not be engrafted upon a deed absolute on its face on parol testimony. Broden v. Broden, 330 S.W.2d 674 (Tex.Civ.App-San Antonio 1959, no writ).

The argument that the trust agreement in question was a parol agreement is not supported by the record. Plaintiffs alleged in their petition that the parties entered into an express trust agreement, without stating whether the agreement was written or oral. Nowhere in defendants’ pleadings or in their motion for summary judgment is it alleged that the trust agreement was oral and in violation of the Texas Trust Act, nor did they offer any summary judgment proof that the agreement was a parol agreement. The notion that the agreement was a parol agreement is mentioned for the first time in defendants’ brief. Plaintiffs’ allegations with regard to the trust agreement are very broad and would no doubt be sufficient to permit proof of a written trust agreement if one existed. Plaintiffs, of course, were not obligated to allege the evidence which they proposed to offer to prove their case, especially in the absence of any special exceptions leveled at their pleadings. In the absence of any pleadings or proof showing the plaintiffs’ cause of action rested upon a parol agreement in violation of the Texas Trust Act, the summary judgment cannot be supported on the theory that plaintiffs’ cause of action was in violation of the Trust Act as a matter of law.

Had defendants offered summary judgment proof conclusively showing that the agreement relied on by the plaintiffs was a parol agreement invalid because of the Texas Trust Act, a different situation would have been presented.

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


author: SPURLOCK, Justice.

text:
    Washington WATLEY, Appellant, v. Leo VERGOTT, Appellee.
    No. 17933.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 9, 1978.
    Short & Copeland and John D. Copeland, Wichita Falls, for appellant.
    Oldham & Holt, and Judd B. Holt, Wichita Falls, for appellee.
   OPINION

SPURLOCK, Justice.

This is a suit for declaratory judgment brought by Leo Vergott (the lessee) against Washington Watley to construe the meaning of an option clause contained in a lease.

On October 23, 1975, L. P. Glidewell and Vergott entered into a lease agreement whereby Vergott leased two spaces in a shopping center. Later, Glidewell sold the shopping center to Watley, subject of course to the outstanding leases. It is undisputed that Vergott’s lease provided that he (Vergott) was to lease the premises for at least twelve months at $600.00 per month. It is the fifth clause in the lease that grants the lessee an option which has given rise to the present litigation. That clause provides:

“Option is granted for four (4) one year periods.”

At the trial, Vergott contended that the option clause contained in the lease gave him the option to lease the premises for four one-year periods (under the same terms and conditions set forth in the lease) after the original one-year term had expired. On the other hand, Watley contended that the option clause was so vague and indefinite as to be rendered void and unenforceable. Further, he contended that Ver-gott had failed to timely exercise his option.

After a non-jury trial, the trial court rendered judgment, providing inter alia: (1)that the lease and its renewal option constitute one entire contract for a term of five years, (2) that one year of the contract is certain and the additional four years are made certain upon the exercise by the lessee of his renewal option, (3) that the lessee exercised his option for the second year of the lease, and (4) that the terms and provisions of the lease remain intact and unchanged throughout the five-year period. From this judgment, Watley has perfected his appeal.

Findings of fact and conclusions of law were neither filed nor requested in this case.

We affirm the judgment of the trial court.

Watley’s primary complaint on appeal is that the option clause contained in the lease is so vague and indefinite as to be unenforceable.

In Support of this contention, he cites the case of Pickrell v. Buckler, 293 S.W. 667 (Tex.Civ.App.-El Paso 1927), wherein the court concluded that the covenant to renew was void for uncertainty. However, our supreme court, in refusing to grant a writ of error, wrote: “We are not inclined to the view that the covenant to renew in the original lease was void for uncertainty.” 116 Tex. 567, 296 S.W. 1062 (Tex.1927).

It is an established rule that a general covenant to renew or extend a lease (which is silent as to the terms of the renewal or extension) implies a renewal or extension upon the same terms and conditions as provided in the original lease and is sufficiently definite and certain to be enforceable. 50 Am.Jur.2d Landlord and Tenant § 1159 (1970). We agree with this rule.

In Red Oak Fishing Club v. Harcrow, 460 S.W.2d 151 (Tex.Civ.App.-Waco 1970, no writ), the court was confronted with the following lease provision: “this lease shall be for a term of five years from the first of June 1964, and shall be renewable from first day of June of each succeeding year for a period of five years upon receipt of the above agreed amount.” The Waco court of civil appeals held that the lease was unambiguous “and that the five year primary term expired on June 1, 1969, and that plaintiffs were given the right to renew for five additional years.” Id. at 152.

Further, we note that is is a generally accepted rule that a lease will be most strongly construed against the lessor. Sirtex Oil Industries, Inc. v. Erigan, 403 S.W .2d 784 (Tex.1966); Golden Spread Oil v. American Petrofina Co. of Tex., 431 S.W.2d 50 (Tex.Civ.App.—Amarillo 1968, writ ref’d n. r. e.). This rule is particularly appropriate to be applied to the case at bar, since the original lessor (Glidewell) drafted the lease containing the option clause.

Based upon the foregoing authorities, we hold that the option clause implies a right of renewal upon the same terms and conditions as provided in the original lease and is sufficiently definite and certain to be enforceable.

We have carefully considered each of Watley’s points of error and each is overruled. The judgment of the trial court is affirmed. All costs are taxed against Wat-ley.


author: JAMES, Justice.

text:
    Lynn McGEHEE and H. G. McGehee, Appellants, v. EXCHANGE BANK & TRUST COMPANY, Appellee.
    No. 5749.
    Court of Civil Appeals of Texas, Waco.
    Jan. 26, 1978.
    Rehearing Denied Feb. 23, 1978.

      Sidney L. Farr, Houston, for appellants.
    Kerry P. FitzGerald, Ken R. Davey, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a suit concerning conversion of a boat. Plaintiff-Appellee Exchange Bank and Trust Company sued Defendant-Appellants Lynn and H. G. McGehee (husband and wife) for damages for conversion of the boat in controversy against which Exchange Bank held a security interest. After jury trial the trial court entered judgment for Plaintiff Exchange Bank against Defendants McGehees for $15,222.39 plus interest and costs, from which the McGe-hees appeal. We affirm the trial court’s judgment after reforming same as hereinafter shown.

On October 26, 1971, one Harry W. Baer, a resident of Tarrant County, Texas, executed a promissory note in the amount of $17,895.75 in favor of Plaintiff Exchange Bank, and also executed a security agreement and financing statement with respect to the boat in question which Baer at that time purchased. Then on November 1, 1971, Exchange Bank filed the financing statement in the office of the County Clerk of Tarrant County, Texas, the county of residence of Baer.

Thereafter Baer made periodic payments on the note and made two renewals of said note, the first time on January 26, 1972, for $22,785.00 and again on November 27, 1974, for $13,063.76. This last 1974 renewal note was never paid in full and on October 29, 1975, Exchange Bank took a default judgment against Baer in a Dallas County District Court for $12,509.44 plus $1212.95 interest and $1500.00 attorneys’ fees and costs. Prior to this default judgment, however, in June of 1974, Baer sold the boat to the Defendant McGehees.

When the McGehees bought the boat from Baer in June of 1974, they had no knowledge of the Exchange Bank lien against it. Before buying the boat, Mr. McGehee specifically asked Baer whether he owed any money on the boat and Baer told him he did not.

Neither of the McGehees ever inquired with the Secretary of State or of the County Clerk of Tarrant County about a financing statement on the boat before they bought it, nor did anyone else ever check on same in their behalf.

The McGehees borrowed from Reisel Bank the funds necessary to buy the boat. Mr. McGehee testified that he asked Mr. Gary Welch, vice-president of Reisel Bank, to be sure there was no lien against the boat before Reisel Bank paid Baer the purchase price for the boat; however, Mr. Welch denied that McGehee ever asked him prior to McGehee’s purchase of the boat, to check the lien records of the Secretary of State or the Tarrant County Clerk’s office to determine whether there was a lien on the boat. Welch testified that he never made any such check. At any rate, the McGehees had no actual knowledge of Exchange Bank’s lien on the boat when they bought it from Baer in 1974, and did not learn about it until 1975.

Trial was had to a jury in which the trial court submitted two special issues as follows:

(1) “Do you find from a preponderance of the evidence that the financing statement filed by Plaintiff, Exchange Bank and Trust Co., gave sufficient notice for a reasonable, prudent person to discover a lien existing on the said property herein?”

To this issue the jury answered: “It was sufficient.”

(2) “Do you find from a preponderance of the evidence that in 1971, at the time the lien was filed, the boat in question was primarily used for personal and family use, or was in a contract for service?”

“Answer: ‘It was used primarily for personal and family use’ or ‘It was used primarily for a contract of service.’ ”

The jury in response to Issue No. 2 answered: “It was used primarily for a contract of service.”

The trial court’s judgment recited: “The Court is of the opinion and finds that Special Issue No. 2 is not an ultimate issue of fact in this case and is not supported by the evidence and should be disregarded;” whereupon the judgment awarded Plaintiff Exchange Bank recovery against the Defendants McGehee in the amount of $15,-222.39 plus interest at 6% per annum from August 1, 1975 (the recited date of conversion) until the entry of judgment (December 16,1976) in the amount of $1265.00 plus interest from date of judgment at 9% per annum and costs.

Defendants McGehee appeal upon sixteen points of error, the first five (5) of which complain of the trial court’s disregard of the jury’s answer to Special Issue No. 2.

Appellants contend that the jury’s answer to Special Issue No. 2 to the effect that the boat was primarily used for a “contract of service” as opposed to “personal and family use” caused the boat to be classified as “inventory” under the Texas Business and Commerce Code and not as “consumer goods”, in which event Exchange Bank was required to file the financing statement with the Secretary of State in Austin in order to perfect its lien or security interest. Appellants then go on to say that since Exchange Bank did not file their financing statement with the Secretary of State, that said Bank never perfected its security interest or lien as against Appellants who purchased the boat without actual knowledge of Exchange Bank’s lien.

In other words, Appellants contend that Exchange Bank simply filed its financing statement in the wrong place, and thereby did not perfect its lien against the boat, and therefore Appellants bought the boat from Baer free and clear of any security interest in favor of Exchange Bank. Appellant contends, and correctly so, that a financing statement filed in the wrong place does not protect the secured party against a purchaser without knowledge of the security interest, citing Meadows v. Bierschwale (Tex.1974), 516 S.W.2d 125, 133.

Therefore the question we are obliged to answer is whether Exchange Bank by filing its financing statement in the Tarrant County Clerk’s office filed same in the right place in order to perfect its security interest in the boat. In order to answer this question we first must determine whether the boat in question is classified as “consumer goods” or as “inventory.”

Article 9.109 of the Texas Business and Commerce Code in its pertinent parts provides:

“Goods are
“(1) ‘consumer goods’ if they are used or bought for use primarily for personal, family or household purposes;
“(2) ‘equipment’ (not applicable to our case) — ;
“(3) ‘farm products’ (not applicable to our case) — ;
“(4) ‘inventory’ if they are held by a person who holds them for sale or lease or to be furnished under contracts of service or if he has so furnished them, or if they are raw materials, work in process or materials used or consumed in a business. Inventory of a person is not to be classified as his equipment.”

Article 9.401, Texas Business and Commerce Code, deals with the place of filing financing statements, and in its pertinent parts provides:

“(a) The proper place to file in order to perfect a security interest is as follows:
“(1) when the collateral is — consumer goods, then in the office of the County Clerk in the county of the debtor’s residence — ;
“(2) when the collateral is timber to be cut (not applicable to this case) — ;
“(3) in all other cases, in the office of the Secretary of State.”

From the above statutes we see that if the boat was “consumer goods,” the Exchange Bank had filed in the right place and thereby perfected their security interest; whereas if the boat was “inventory,” then Exchange Bank had not perfected its lien.

Appellant contends that since the jury by its answer to Special Issue No. 2 found that the boat was primarily used in a “contract of service” at the time the lien was filed in 1971, that the boat is “inventory,” which in turn meant that the financing statement should have been filed with the Secretary of State, that Exchange Bank thereby had no lien and that Defendant-Appellants were entitled to judgment in their favor. We do not agree.

We are of the opinion and hold that the evidence conclusively established as a matter of law that the boat in question fell into the classification of “consumer goods” because it was bought and used primarily for personal and family use. This being so, the trial court properly disregarded the jury’s answer to Special Issue No. 2 and properly entered judgment in favor of Plaintiff-Appellee Exchange Bank.

As we understand it, the intent of the debtor-purchaser at the time of the sale when Exchange Bank’s security instrument attached to the collateral is controlling, and no creditor is required to monitor the use of collateral in order to ascertain its proper classification. See Commercial Credit Equipment Corporation v. Carter (1973), 83 Wash.2d 136, 516 P.2d 767, 769, in which the Uniform Commercial Code of Washington provided definitions of “consumer goods” and “inventory” in language identical to our own Business and Commerce Code. Also see Article 9.401 of our Code in subsection (c) thereof wherein it provides: “A change in the use of the collateral does not impair the effectiveness of the original filing.”

In the case at bar, Baer in 1971 financed the purchase of the boat in question from Exchange Bank and at the same time secured insurance and represented that the boat was for private purposes only and at said time noted that he would be using it in the Coast Guard Auxiliary. Both Mr. William Jones, the collections officer for Exchange Bank, as well as Mr. Charles Gag-non, the Allstate man who insured the boat, testified that the boat in question was a pleasure craft as opposed to being used for commercial purposes. Baer insured it as a pleasure craft. Insurance on boats used for commercial purposes is much higher than for pleasure craft, Gagnon testified.

When Baer insured the boat, he told the insurance man he would be using the boat in the Coast Guard Auxiliary which entitled him to a 10% discount in the policy premiums.

The Coast Guard Auxiliary is a volunteer non-profit organization which any citizen can join provided he has a boat or a radio or an airplane which he can use to perform the sole function of water safety patrol. Any member of the Coast Guard Auxiliary can simply run its flag up on his boat and he is acting under the auspices of the Coast Guard Auxiliary, according to Baer’s testimony. When the boat is on patrol for the Coast Guard Auxiliary, the boat owner is reimbursed for his gas and oil used, and no more, and during such times of patrol, the Coast Guard assumes responsibility for the boat in case of accidents, thereby relieving the insurance carrier. In cases of emergency, the U.S. Coast Guard can call Auxiliary members and their boats out to patrol the waters. Baer testified that his use of his boat for Coast Guard Auxiliary purposes was not inconsistent with his use of his boat as a pleasure craft, and this was not contradicted. In summary, the boat was purchased for and used as “combination personal and Coast Guard use” and was not used for commercial purposes or for hire. Baer used this boat about 80% of the time for the Coast Guard Auxiliary, and for a time commanded a flotilla for the Auxiliary on the Eagle Mountain Lake, in which all the flotilla members used a pleasure boat of some type.

Captain Boden, the marine expert who surveyed the boat before the McGehees purchased it from Baer, testified that the boat was designed for use as a pleasure craft, and not for commercial purposes.

Baer earned his livelihood as an insurance man, with a full time job as such. The use of the boat in question was for his and his family’s hobbies of fishing, boating, and Coast Guard Auxiliary activity. All of these uses of the boat were to implement his and his family’s hobbies, which meant that the boat was purchased for and used as a pleasure craft. In summary, the evidence conclusively shows and we hold as a matter of law that the boat was used for personal and family uses, thereby causing the boat to be “consumer goods” under the Code definition thereof. See the Uniform Commercial Code Comment, paragraph 3 under Article 9.109, Texas Business and Commerce Code, which sheds light upon the meaning of the terms “inventory” and “[goods] furnished under a contract of service.” In our opinion, none of Baer’s activities with the Coast Guard Auxiliary constitute a “contract of service” contemplated by Article 9.109(4) of the Texas Business and Commerce Code. Moreover, there is no evidence in the record of any contract, written or oral, between Baer and the Coast Guard Auxiliary. Appellants’ points one through five are accordingly overruled.

Appellants’ points ten through fifteen assert that the evidence is legally and factually insufficient to support the jury’s answer to Special Issue No. 1. As stated before, by the jury’s answer to Special Issue No. 1 it found that the financing statement filed by Exchange Bank gave sufficient notice for a reasonable, prudent person to discover a lien existing on the boat. We overrule these points of error.

Appellants contend that the errors and mistakes in the financing statement describing the boat are such as to render such financing statement void insofar as giving constructive notice of Exchange Bank’s lien, “for a reasonable, prudent person to discover” such lien. The descriptive portions of the financing statement are hereunder shown in the lefthand column and the true facts are shown in the right-hand column:

As to the model of the vessel, it is true that the financing statement showed the boat to be a 1965 model whereas in fact it was a 1962 model. Captain Boden, the Appellants’ marine expert who surveyed the vessel, testified that the actual hull designs on such vessels changed very little particularly during these years and therefore it was extremely difficult to tell the difference between a 1962 and a 1965 model. Moreover, the model year never appeared on the vessel itself, but actually had to be carefully researched by Captain Boden who himself could not detect the model year without reviewing the catalogues peculiar to his trade. Of course, as seen, the description of the boat as a forty-foot Owens Flagship was correct.

Next, the double cabin number 151-7723 in the financing statement is the same as the hull number testified about, and is correct. Then, with reference to the two engine numbers, one of these was correct in every detail, where there was an error in the other. However, Boden testified that the first four digits (7723) constituted the identification of the engines, and therefore the discrepancy in the second engine number was of no consequence as it did not affect the identification of the engines themselves. In other words, he testified that the first four digits, 7723, indicate that the two engines are peculiar to this vessel, and the remainder of the digits one of which is incorrect only show where the engine is supposed to be mounted and the manner of rotation and have nothing to do with the identification of the engines.

Next, the true serial number of 32C680788 appears on the financing statement preceded by the words “Power Plant Onan Model.”

Finally, the license registration number has an error in it, the true number being TX-7250-AY whereas the financing statement showed it to be TX-7550-AY.

Thus, of nine separate pieces of information concerning the vessel, only one of substance was incorrect and the great majority were accurate. That is to say, the inaccuracies are minor in nature and not such as to mislead any person examining the recorded financing statement. As stated before, neither Mr. nor Mrs. McGehee nor anyone in their behalf ever checked the records in the Tarrant County Clerk’s office or the Secretary of State’s office. Mr. McGehee testified that if he had seen the financing statement on file in Tarrant County that he would not have bought the boat.

Article 9.110, Texas Business and Commerce Code, dealing with sufficiency of description, provides:

“Except as provided in Subsections (c) and (f) of Section 9.402, any description of personal property or real estate is sufficient for the purposes of this chapter whether or not it is specific if it reasonably identifies what is described.”

Applying this statutory test to the descriptions contained in the financing statement in question, we are of the opinion and hold that the evidence is legally and factually sufficient to support the jury’s answer to Special Issue No. 1, and that such financing statement as filed constituted constructive notice of Exchange Bank’s lien to the McGehees.

The rule has been stated that, as between the mortgagee and third parties, it is not essential that the description be so specific that the property may be identified by it alone, if such description suggests inquiries or means of identification, which, if pursued, will disclose the property covered by the mortgage. Finger Furniture Co. v. Chase Manhattan Bank (San Antonio CA 1967), 413 S.W.2d 131, NRE, and the cases cited therein on page 135; also see Francis v. Reed (Amarillo CA 1968), 428 S.W.2d 356, 358, no writ; In Re Nero (5th Cir. 1974), 501 F.2d 1354; Vintage Press, Inc. v. Mullins (5th Cir. 1977), 552 F.2d 1145.

Appellants’ sixteenth and final point asserts the trial court erred in rendering judgment in the amount of $15,222.39 plus interest. We sustain this contention. Mr. William Jones, the collection manager for Exchange Bank, testified that on April 16, 1975, when the last payment was made on Baer’s note, the balance was $10,724.21, which was a “net figure and not a gross figure.” There was no explanation of what was meant by the terms “net figure” and “gross figure.” The last renewal note executed by Baer of which the $10,724.21 was the final balance, provided: “All past due amounts shall bear interest at 10% per an-num.” Since this note was payable in monthly installments, it appears to us that interest at the rate of 10% per annum should be charged on the $10,724.21 figure from May 16, 1975, until the date of the trial court’s judgment, to wit, December 16, 1976, such interest amounting to $1698.01.

We accordingly reform the judgment so as to award Plaintiff-Appellee Exchange Bank judgment against Defendant-Appellants in the amount of $10,724.21 plus $1698.01 interest same being interest at 10% per annum from May 16, 1975 until December 16, 1976, the date of trial court’s judgment, said judgment being in the total amount of $12,422.22, together with interest from and after judgment until paid at the rate of 10% per annum. Article 5069-1.05, Vernon’s Annotated Civil Statutes. When mortgaged property has been wrongfully converted, the mortgagee may proceed at any time to recover for the value of the property up to the amount of the debt. Terry v. Spearman (Comm.App.1924), 259 S.W. 563, 565, approved; Crawford Undertaking Co. v. Siegel (Waco CA 1950), 230 S.W.2d 590, 595, 596, no writ. Here, since it is undisputed that the value of the boat at the time of conversion exceeded the debt, Plaintiff-Appellee is entitled to judgment in the amounts as above set out, and the trial court’s judgment is hereby so reformed, and as reformed, is affirmed.

Costs in the trial court as well as those on appeal are adjudged one-half to Appellants and one-half to Appellee.

Appellants have other points and contentions, all of which we have carefully considered and we overrule same as being without merit.

REFORMED AND AFFIRMED.


author: WALTER, Justice.

text:
    Sherry WINDHAM, Appellant, v. Frank WINDHAM, Jr., Appellee.
    No. 5114.
    Court of Civil Appeals of Texas, Eastland.
    Jan. 26, 1978.
    Frank D. Scarborough and J. R. Black, Scarborough, Black, Tarpley & Scarborough, Abilene, for appellant.
    Ben D. Sudderth and Keith K. Woodley, Sudderth, Woodley & Dudley, Comanche, James P. Shanks, Baird, for appellee.
   WALTER, Justice.

Sherry Windham was granted a divorce from Frank Windham, Jr. and appointed managing conservator of their child, Matthew Shane Windham. The father was appointed possessory conservator of the child and ordered to pay child support in the amount of $200.00 per month.

All parties agree the court properly granted the divorce and neither party complains about the award of child custody, support and visitation.

Sherry Windham has appealed from that portion of the judgment dividing the property.

The judgment provides:

“All Certificates of Deposit, savings accounts, and life insurance policies are hereby awarded to Frank Windham, Jr., as his sole and separate property with the exception of any savings accounts or checking accounts which the Petitioner may have acquired and maintained in her separate name since the separation of the parties herein.”
In his findings of fact, the court found: “. . . The Certificates of Deposit awarded to Frank Windham, Jr. were owned by him prior to his marriage to Sherry Windham.”

The judgment further provides:

“The Court finds that no partnership existed or exists between Frank Wind-ham, and Frank Windham, Jr., and accordingly decrees that Sherry Windham owns no interest in the livestock and equipment evidenced by testimony in this proceeding.”
In his findings of fact, the court found: “That Frank Windham, Jr. and Sherry Windham, own no interest in the livestock that was located on the ranch of Frank Windham, Sr.”

Appellant contends the evidence establishes as a matter of law the Certificates of Deposit totaling $13,661.59 were community property.

In the first set of interrogatories, Frank Windham, Jr., was asked to state if he had any Certificates of Deposit in the First National Bank of Baird, Texas, to which question Windham answered in the affirmative. He was then asked if he answered the foregoing interrogatory in the affirmative to state fully and in detail the dates when they were purchased and whether or not he considered them to be community or separate property. He answered as follows:

“$6600.00 purchased January, 1970 and $7061.59 purchased June, 1970. Of this total $4,061.59 is separate property as it is a reinvestment of funds acquired prior to our marriage. The balance of $9,600.00 is considered community. None of the above is pledged to any bank or institution.”

Sherry and Frank were married in December, 1966.

In Schreiner v. Schreiner; 502 S.W.2d 840 (Tex.Civ.App.-San Antonio 1973, writ dism’d), the court said:

“Section 5.02 of the Texas Family Code formerly Article 4619, Tex.Rev.Civ.Stat. Ann., provides that property possessed by either spouse during or upon dissolution of the marriage is presumed to be community property. This is a rebuttable presumption with the burden upon one asserting otherwise to prove to the contrary by satisfactory evidence. Tarver v. Tarver, 394 S.W.2d 780 (Tex.1965); Cox v. Cox, [439 S.W.2d 862 (Tex.Civ.App.)] supra.”

Appellee contends there is no indication as to who considers the balance of $9,600.00 to be the community property of the parties. Under the provisions of Rule 168, T.R.C.P., appellee answered the questions, swore to them and they were introduced into evidence in this proceeding. This would indicate that appellee is the person who considered the $9,600.00 as community property.

In Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415 (1960), the court said:

“. . .On page 824, in discussing the Texas rule on this point, it is stated that ‘the Texas Court of Civil Appeals appears to have adopted the Missouri rule, “A party plaintiff testifying in his own behalf as to the existence of a fact is absolutely concluded thereby, unless he makes a correction thereof giving some excuse of mistake, oversight, misunderstanding, or lack of definite recollection,” ’ citing McMath Co. v. Staten, Tex.Civ.App.1931, 42 S.W.2d 649, wr. dism.; J. R. Watkins Co. v. King, Tex.Civ.App.1935, 83 S.W.2d 405, no writ history; Moore v. Conway, Tex.Civ.App.1937, 108 S.W.2d 954, no writ history; Wristen v. Wristen, Tex. Civ.App.1938, 119 S.W.2d 1104, wr. dism.; Kimmell v. Tipton, Tex.Civ.App.1940, 142 S.W.2d 421, no writ history.
Citing from Stanolind Oil & Gas Co. v. State, 1940, 136 Tex. 5, 133 S.W.2d 767, 145 S.W.2d 569(1), 570:
‘The authorities hold that where a litigant admits positive and definite facts, which if true would defeat his right to recover, and such statements or admissions are not subsequently modified or explained by him so as to show that he was mistaken, although testifying in good faith, he is conclusively bound by such admissions, and cannot successfully complain if the court directs a verdict against him,’ citing numerous authorities from Texas and other cases.”

In McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex.1973), the court said:

“In Tarver v. Tarver, 394 S.W.2d 780 (Tex.1965), this Court reiterated the basic presumption that all property possessed by a husband and wife when their marriage is dissolved is their community property. At the time Tarver was decided the presumption was created by Article 4619, Sec. 1, Vernon’s Texas Civil Statutes, and the presumption remains by the clear language of Section 5.02 of the Family Code, V.T.C.A.: ‘Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.’ It is the general rule that to discharge the burden imposed by the statute a spouse, or one claiming through a spouse, must trace and clearly identify property claimed as separate property, Tarver v. Tarver, supra; Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226 (1947); Chapman v. Allen, 15 Tex. 278, 283 (1885) ...”

We hold the court erred in holding the Certificates of Deposit were owned by Frank Windham, Jr., prior to his marriage to Sherry Windham.

Appellant contends the evidence shows that the ranching operations conducted by Frank Windham, Jr. and Frank Windham, Sr. under the name of Frank Windham & Son constituted a partnership as a matter of law. She also contends the appellees admitted the existence of the partnership by failing to deny same under oath as required by Rule 93, T.R.C.P.

In her amended petition, appellant pleaded that she and her husband were engaged in a ranching partnership with Frank Wind-ham, Sr. and wife, Inez Windham. She alleged they had a substantial interest in the partnership. Rule 93, T.R.C.P., provides:

“A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.
(f) A denial of partnership as alleged in any pleading as to any party to the suit.”

Frank Windham, Jr. filed a general denial and Frank Windham, Sr. and Inez Windham filed a general denial. Neither of such answers contained a verified denial of partnership as required by Rule 93, T.R.C.P. Appellees contend testimony was admitted without objection tending to establish the nonexistence of a partnership and, therefore, appellant waived their failure to comply with Rule 93 and rely on Mitchell v. Bullock, 500 S.W.2d 579 (Tex.Civ.App.—Austin 1973, writ ref. n. r. e.). In Mitchell, the court held that since the record did not show that appellants brought appellee’s failure to file a verified denial of partnership to the attention of the court prior to the entry of judgment, appellants waived any complaint which they might have had.

Judgment was rendered in this case on July 13, 1977. In April, 1977, appellant filed with the court a written brief and summation of the evidence in which she informed the court that the appellees had not filed a verified denial of partnership. For this difference and reason, we hold Mitchell v. Bullock is not controlling and there was no waiver.

A general denial puts in issue all matters pleaded by the plaintiff which are not required to be denied under oath. Shell Chemical Company v. Lamb, 493 S.W.2d 742 (Tex.1973). Appellee’s failure to deny partnership under oath was an admission of partnership.

In Garver v. First National Bank of Canadian, 432 S.W.2d 745, 748 (Tex.Civ.App.—Amarillo 1968, writ ref. n. r. e.), the court said:

“We believe there are several legal grounds which require the affirmance of the court’s judgment. Rule 93, Vernon’s Ann.Texas Rules provides, inter alia, ‘A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit: (f.) A denial of partnership as alleged in any pleading as to any party to the suit.’ Appellee especially pleaded that appellants and Dan and Ed, and Louise Hoover were operating as a partnership and the bank dealt with Dan and Ed in that capacity. Such partnership was never denied under oath by appellants, so stands admitted. True v. Gettler, Tex.Civ.App., 256 S.W.2d 958 (writ ref’d); Coulson v. Alvis Auto Rentals, Inc., Tex.Civ.App., 352 S.W.2d 849 (n. r. e.); Howell v. Bowden, Tex.Civ.App., 368 S.W.2d 842 (n. r. e.). A general denial does not put the question of partnership in issue. Curry v. E. E. Stone Lumber Co., Tex.Civ.App., 218 S.W.2d 293 (n. r. e.).”

In McKnight v. McKnight, 543 S.W.2d 863 (Tex.1976), the court said:

“The ‘matter to be decreed’ in this case is a ‘just and right’ division of the property in compliance with the Family Code. The court of civil appeals could not render a property division under the authority of Rule 434 because the matter to be decreed was dependent on the discretion of the trial court.
. The court of civil appeals was correct in its holding that the trial court erred in awarding specific partnership property. The Texas Uniform Partnership Act provides:
‘Sec. 28-A. Extent of Community Property Rights of a Partner’s Spouse.
‘(1) A partner’s rights in specific partnership property are not community property.
‘(2) A partner’s interest in the partnership may be community property.
‘(3) A partner’s right to participate in the management is not community property.
‘Sec. 28-B. Effect of Death or Divorce on Interest in the Partnership.
‘(1)(A) On the divorce of a partner, the partner’s spouse shall, to the extent of such spouse’s interest in the partnership be regarded for purposes of this Act as an assignee and purchaser of such interest from such partner.’
The trial court detailed a division of the partnership cattle between the husband and wife and awarded the wife one-half of the partnership bank account. The court of civil appeals held the award violated the Act and rendered that the husband recover one-half interest in the partnership with the wife getting no interest in the partnership. While we think the court of civil appeals was correct in its application of the Act, the court should have remanded this issue with the other issues of property division rather than making an award to the husband. It would have been proper for the trial court in its discretion to have given the wife an interest in the partnership. The court of civil appeals by rendering that the husband take a one-half interest in the partnership was infringing on the discretion of the trial court.”

We think the disposition made of the Certificates of Deposit and the findings on the partnership were unjust and unfair and should be set aside. As was said in Wilson v. Wilson, 225 S.W.2d 236 (Tex.Civ.App.—Fort Worth 1949, no writ):

“. . . We do not hold that the community property should be divided equally, or in any other named proportion. Our only authority is to determine whether the disposition of property made by the judgment should be upheld.”

That portion of the judgment granting Sherry Windham a divorce from Frank Windham, Jr. and appointing her managing conservator and Frank Windham, Jr. pos-sessory conservator of their child and ordering the father to pay child support in the amount of $200.00 per month and awarding visitation rights is affirmed. In all other respects, the judgment is reversed and the cause is remanded.


author: REYNOLDS, Justice.

text:
    TOOT’N TOTUM FOOD STORES, INC., Appellant, v. Clarence WILLIAMS, Appellee.
    No. 8855.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 30, 1978.

      Folley, Snodgrass & Calhoun, 0. M. Calhoun, Amarillo, for appellant.
    Wayne B. Barfield, Amarillo, for appel-lee.
   REYNOLDS, Justice.

The district court affirmed the county judge’s denial of an off-premise wine permit and beer license. The affirmance was predicated on factual findings of non-compliance with application procedures, and no determination was made whether the denial was reasonably supported by substantial evidence. We reverse the judgment because the findings are without support in the record, and remand the cause for the determination whether the county judge’s denial is reasonably supported by substantial evidence.

Toot’n Totum Food Stores, Inc., a Texas corporation, applied to the county judge of Carson County for a Wine Only Package Store Permit and a Beer Retailer’s Off-Premise License for its store No. 47 located in the City of Panhandle. Each application discloses Toot’n Totum No. 47 as the trade name followed by the signature of Harley G. Woods, the vice-president of the corporation, affixed without a designation of his corporate capacity, and his personal acknowledgment.

Following an administrative hearing, County Judge Clarence Williams denied the applications. Toot’n Totum appealed to the district court. The county judge responded, particularizing his findings alleged to be supported by substantial evidence.

By virtue of the appellate procedure prescribed by Article 666-14 of the Texas Liquor Control Act, it became the function of the district court to determine whether the order of the county judge is reasonably supported by substantial evidence, Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198, 201-02 (1949), introduced in the trial [district] court. Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 183 (1951). The district court hears evidence anew, not to ascertain if the county judge actually heard sufficient evidence to support his order but to determine if at the time the order was entered there existed substantial evidence to justify it. Railroad Commission v. Shell Oil Co., Inc., 139 Tex. 66, 161 S.W.2d 1022, 1030 (1942); State v. Peeler, 200 S.W.2d 874, 878 (Tex.Civ.App.-Fort Worth 1947, no writ).

Here, the adduction of evidence in the district court included both the proceedings in the administrative hearing before the county judge and other evidence. Thereafter, the district court, without ruling whether the denial was reasonably supported by substantial evidence, affirmed the denial on the basis of these findings of fact:

A. That the applications are insufficient as a matter of law because they fail to show that Harley G. Woods executed the applications as an officer of the corporation and that he failed to acknowledge his execution of said applications as the act and deed of the corporation, as required by the terms of the application;
B. That there is no evidence that the application for the beer retailer’s off-premise license was submitted to the Texas Liquor Control Board District Office in accordance with the provisions of Article 667-5(3)(i) of Vernon’s Annotated Penal Code; and
C. That there is no evidence that the County Clerk of Carson County, Texas gave notice of such application for the beer retailer’s off-premise license by publication ... in accordance with the provisions of Article 667-6(b)(2) of Vernon’s Annotated Penal Code.

None of these findings was advanced by the county judge as a reason for denying the applications. Toot’n Totum attacks the findings, asserting that the converse of each is established in the record made before the district court.

Finding of fact A pertains to both applications. First noted by the court as non-compliance is a failure to show that Harley G. Woods executed the applications as an officer of the corporation as required by the terms of the application. From this we deduce that the court found the applications required Mr. Woods’ corporate capacity to be shown next to his signature.

Each application specifies that the applicant is the corporation and lists all of the officers. Harley G. Woods is listed as the vice-president of the corporation.

Under the signature line on the wine permit application where Mr. Woods affixed his signature is this wording: “Signature of Applicant(s) Or Officer if Applicant is a Corporation.” Adjacent to the signature line is printed: “IMPORTANT: See instructions telling who must sign.” The pertinent instructions are: “1. . . .If the applicant is a corporation, the application must be signed by an OFFICER of the Corporation before a Notary Public”; and “9. . . . if a corporation, an officer must subscribe and swear to the application. . .

Under the signature line on the beer license application where Mr. Woods affixed his signature is this wording: “. . . If the application is for Beer Retailer’s Off-Premise License ... a corporate officer must sign.” Adjacent to the signature line is printed: “IMPORTANT: See instructions telling who must sign this application before a Notary Public.” The pertinent instruction is: “1. . If the application is for a Beer Retailer’s Off-Premise License ... a corporate officer named in question 14 must sign the application.” In question 14, Harley G. Woods is listed as the vice-president of the corporation.

Neither application directs the corporate officer signing the application to designate his title next to his signature. Absent this direction, no particular form of signature is required if, as here, the application is signed by the proper officer and it is apparent that it is the corporation’s application. Cf. Robertson v. Bland, 517 S.W.2d 676, 678 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ dism’d). Consequently, we hold that the first portion of the finding of fact is without support in the record.

Next noted in finding A as non-compliance is that Mr. Woods failed to acknowledge his execution of the applications as the act and deed of the corporation as required by the terms of the applications. To be determined, then, is whether the applications make that requirement.

Here, each application is prepared for execution by an individual or on behalf of a partnership or a corporation. Each application provides only one form for acknowledgment — a form for an individual’s acknowledgment. The form on each application was completed by the notary public to certify that Mr. Woods appeared and swore “that all of the facts set forth are true and correct.”

These circumstances must be considered with applicable legal principles. Generally, each certificate must be judged by its own terms, Spivy v. March, 105 Tex. 473, 151 S.W. 1037, 1039 (1912), and the sufficiency of an acknowledgment may be considered in connection with the instrument' to which it is attached. Sheldon v. Farinacci, 535 S.W.2d 938, 942 (Tex.Civ.App.-San Antonio 1976, no writ); Williams v. Cruse, 130 S.W.2d 908, 909 (Tex.Civ.App.—Beaumont 1939, writ ref’d). It has been held that an officer’s personal acknowledgment of a corporate instrument does not render the acknowledgment ineffective. Carlin v. Burrows Bros. Co., 6 N.E.2d 761, 763 (Ohio Civ.App.1936); 25 A.L.R.2d at 1157. But more in point, in Muller v. Boone, 63 Tex. 91 (1885), and in Ballard v. Carmichael, 83 Tex. 355, 18 S.W. 734 (1892), an objection was made to the acknowledgment of a corporate officer because it did not appear to be the act of the corporation. It was held that a corporate officer’s acknowledgment that the execution was for the purposes therein expressed, as Vice-president Woods acknowledged here, was equivalent to acknowledging that it was the act of the corporation where the instrument purports to be the act of the corporation.

When we consider the acknowledgment in connection with the application, we conclude that there is no requirement that the execution of the application be shown in the acknowledgment as the act and deed of the corporation. We further conclude that, upon application of controlling law to the circumstances here, the acknowledgment was the equivalent of acknowledging that the execution was the act and deed of the corporation. Accordingly, finding of fact A must be set aside.

Finding of fact B recites there is no evidence that the application for the beer license was submitted to the district office of the Liquor Control Board in accordance with Article 667-5(3)(i). By that article, the county judge may refuse to approve the application for a beer license if he has reasonable grounds to believe and finds that the applicant has failed or refused to furnish a true copy of his application to the Board’s district office.

The county judge did not list such finding among the reasons he gave for denying the application. The record does not contain affirmative evidence that a true copy of the application was not submitted to the district office. Admitted in evidence was the refused application which shows a “Yes” answer to the question 33 inquiry whether a copy of the application has been filed with the commission’s office in the district. Vice-president Woods testified that all answers to the questions contained in the application are true and correct. Thus, there being some evidence of submission, the finding of no evidence cannot stand.

Finding of fact C announces there is no evidence that notice of the application for a beer license was published. Although the record shows that in the administrative 'hearing a witness stated, “The beer has not been publicized,” the county judge thereafter entered his order reciting “that due and legal notice was given as required by law.” The order was admitted in evidence in the district court without any challenge being made there to the recital. The recital, therefore, is some evidence of probative force showing the required notice. Cf. Texas Employers’ Ins. Ass’n. v. Neatherlin, 31 S.W.2d 673, 675 (Tex.Civ.App.-Eastland 1930, no writ). Hence, the no evidence finding must fall.

Toot’n Totum’s final point is that the trial court did not make a finding whether the county judge’s order was or was not reasonably supported by substantial evidence. It is, as previously noted, the duty of the district judge to determine under the test of the substantial evidence rule whether the evidence produced in district court sustained the county judge’s refusal. Sikes v. Texas Liquor Control Board, 243 S.W.2d 395, 397 (Tex.Civ.App.—Galveston 1951, no writ).

An important feature of the trial in district court is the taking of the testimony, including the determination of what evidence shall be admitted and what shall be rejected and the weight to be given thereto. Railroad Commission v. Shell Oil Co., supra, at 1028. Although circumscribed by the substantial evidence rule, the district judge has a right and the duty to pass upon the credibility of the witnesses, Texas Liquor Control Board v. Saiz, 220 S.W.2d 502, 510 (Tex.Civ.App.-El Paso 1949, no writ), whose demeanor is observed by the trial court but not by the appellate court. In discharging this duty, the trial court is bound by the findings of fact made by the county judge only if, after considering all the credible evidence, they are believed to be true. Killingsworth v. Broyles, 300 S.W.2d 164, 167 (Tex.Civ.App.-Austin 1957, no writ).

Because the findings made by the district court are not supported by the record and the court failed to determine whether the county judge’s denial is reasonably supported by substantial evidence, the judgment must be reversed' and the cause remanded. To this extent, all of Toot’n To-tum’s points of error are sustained.

The judgment of the trial court is reversed, and this cause is remanded for proceedings consistent with this opinion.

      . The Texas Liquor Control Act, appearing as Articles 666-1 to 667-33 in Chapter 8 of Title 11 in the Texas Penal Code of 1925, was neither repealed by nor incorporated into the Texas Penal Code enacted effective 1 January 1974. Pending their proposed incorporation in the Alcoholic Beverage Code, these articles are published in Penal Auxiliary Laws Special Pamphlet (1974, et seq.). All references made herein to articles are to the articles of the Texas Liquor Control Act.

      . Effective 1 January 1970, the name of the Texas Liquor Control Board was changed to the Texas Alcoholic Beverage Commission. Tex.Penal Code Aux. Laws art. 666-5b (Vernon 1977).