author: WALTER, Justice.

text:
    A. C. COOPER et al., Appellants, v. Minnie DURHAM et al., Appellees.
    No. 5093.
    Court of Civil Appeals of Texas, Eastland.
    March 30, 1978.
    Rehearing Denied May 4, 1978.

      Tom Joseph, San Antonio, and Leon F. Steinle, Jordanton, for appellants.
    W. Michael Murray, San Antonio, and Gary W. Shank, Floresville, for appellees.
   WALTER, Justice.

Minnie Durham and Maidie Lanell Durham, also known as Nell Durham, recovered a judgment, based on answers to special issues, to funds represented by Certificate of Deposit No. 291 issued by The First National Bank of Poth, Texas, and to the funds represented by the checking account on deposit at said Bank in the name of “Maida Cooper or Minnie or Nell Durham”. Nell Durham recovered title to a Cable “player” piano.

A. C. Cooper and Riley G. Cooper and A. C. Cooper, administrator of the estate of Maidie Cooper have appealed.

We find appellants’ statement of the nature of the case to be accurate and it is as follows:

“Maidie Cooper was a feme sole at the time of her death September 17, 1975, intestate. She left surviving her, her sister Minnie Durham, one of the Plaintiffs here, and A. C. Cooper, also known as A. C. Cooper, Jr., and Riley G. Cooper, her brothers, the Defendants-Appellants here. Minnie Durham qualified as the Administratrix prior to the filing of this suit, whereupon Riley G. Cooper and A. C. Cooper filed a separate action in the Probate Court of Wilson County, which Plaintiffs sought unsuccessfully to enjoin through the lower Court, removing her as Administratrix and qualifying A. C. Cooper, Jr. as Administrator, who then filed an answer in behalf of the Estate, and is now one of the Appellants. The nature of the controversy is centered on the ownership of funds in the First National Bank located in Poth, Texas. There was on deposit, as of the 4th of September, 1975, the sum of $14,793.97 in a checking account, and $16,200.41 plus accrued interest in the form of a Certificate of Deposit. The bank, however, made no claim to such funds and is not here appealing.”

The issues and the jury’s answers are as follows:

“SPECIAL ISSUE NO. 1
On or about September 4th, 1975, did the deceased, Maida Cooper, make a gift in contemplation of death to Minnie Durham and Nell Durham of the following property items?
Answer separately with respect to each:
a. The funds represented by the Certificate of Deposit No. 291 at the First National Bank of Poth.
ANSWER: Yes
b. The funds on deposit in the cheeking account at the First National Bank of Poth.
ANSWER: Yes
SPECIAL ISSUE NO. 2
Did Maida Cooper on or about September 8th, 1975, make a gift during her lifetime of the funds represented by the Certificate of Deposit No. 291 with First National Bank of Poth, Texas, to Minnie Durham and Nell Durham?
ANSWER: No
SPECIAL ISSUE NO. 3
Did Maida Cooper on or about September the 8th, 1975, make a gift during her lifetime of the player piano to Plaintiff Nell Durham?
ANSWER: Yes
SPECIAL ISSUE NO. 4
Did Maida Cooper on or about September the 4th, 1975, and the First National Bank of Poth, acting through Mildred Moore, mutually agree that the survivor or survivors of Maida Cooper or Minnie Durham or Nell Durham would receive any of the following items of property?
Answer separately as to each:
a. Proceeds of the checking account at the First National Bank of Poth.
ANSWER: Yes
b. The funds represented by Certificate of Deposit No. 291 at the First National Bank of Poth.
ANSWER: Yes
SPECIAL ISSUE NO. 5
Did Maida Cooper enter into an agreement with the First National Bank of Poth, acting through Mildred Moore, that Certificate of Deposit No. 291 would be issued so that the survivor or survivors of Maida Cooper or Minnie Durham or Nell Durham would be entitled to the funds represented by Certificate of Deposit No. 291.
ANSWER: Yes
If you have answered Special Issue No. 5 ‘Yes’, and only in that event, then answer Special Issue No. 6.
SPECIAL ISSUE NO. 6
Was the failure of the Certificate of Deposit No. 291 to provide that the survivor or survivors of Maida Cooper or Minnie Durham or Nell Durham would be entitled to the funds represented by said Certificate of Deposit No. 291 the result of a mutual mistake on the part of Maida Cooper and the First National Bank of Poth, acting through Mildred Moore?
ANSWER: Yes
SPECIAL ISSUE NO. 7
Do you find that the First National Bank of Poth and Maida Cooper, the deceased, made a complete contract in writing to pay the proceeds of the checking account in evidence to Minnie and Nell Durham after Maida Cooper’s death?
ANSWER: No ”

Appellants contend the trial court erred in granting judgment ordering the Certificate of Deposit to be reformed.to provide rights of survivorship as a result of the jury’s answer to Special Issue No. 6 that a mutual mistake occurred between Mrs. Moore and the deceased as to the certificate reflecting rights of survivorship because there is no evidence to support the jury’s answer to said Issue No. 6. We agree.

To show that a mutual mistake occurred between Mrs. Moore and the deceased as to the Certificate of Deposit reflecting rights of survivorship, appellees rely on “portions” of Mrs. Moore’s “ex parte statement” read into evidence by Gary Shank, attorney for Minnie Durham.

Appellants argue Mrs. Moore’s statement is inadmissible hearsay evidence. Appellees argue the statement is admissible as a declaration against the interest of the First National Bank of Poth, therefore, an exception to the hearsay rule.

As the Texas Supreme Court recognized in Duncan v. Smith, 393 S.W.2d 798 (Tex. 1965), the essential elements of a declaration against interest are as follows:

“ ‘ . . . Declarations of a person since deceased, opposed to his pecuniary or proprietary interest, are admissible in evidence, provided he was in a position to know of the matters stated and had no probable motive to misrepresent the facts.’ 2 McCormick and Ray, § 1001

We have carefully examined Mrs. Moore’s statement and find it does not disclose facts adverse to the Bank’s proprietary or pecuniary interest. The statement merely reflects the transaction which occurred between Mrs. Moore and Maida Cooper, the deceased. Therefore, we hold Mrs. Moore’s statement is hearsay and is no evidence of probative force that a mutual mistake of fact occurred between the deceased and First National Bank of Poth, acting through Mrs. Moore. There being no evidence of mutual mistake, the Certificate of Deposit was improperly reformed to provide rights of survivorship.

In Johnson v. Snell, 504 S.W.2d 397 (Tex.1973), the court said:

“The contention is further made, and the court of civil appeals so held, that the contract was unenforceable because there was no meeting of the minds of the parties to the contract. Although respondent testified that she understood the contract to mean that she was to receive 6% interest on the balance due of $45,-000.00, there is absolutely no evidence In the present record that the petitioner shared such view. A mistake by only one party to an agreement, not known to or induced by acts of the other party will not constitute grounds for relief. Morris v. Millers Mutual Fire Insurance Co. of Texas, 343 S.W.2d 269 (Tex.Civ.App.1961); Wheeler v. Holloway, 276 S.W. 653 (Tex.Comm’n App.1925). There are no pleadings or evidence of fraud which might vitiate the contract. The respondent’s claim of mutual mistake cannot be sustained. The record does not support respondent’s claim that the contract was the result of mutual mistake.” (Emphasis added)

Justice Walker in a concurring opinion said:

“ . . .As pointed out in Warren v. Osborne, Tex.Civ.App., 154 S.W.2d 944 (wr. ref. w. m.), knowledge of one party of the other’s mistake regarding the expression of the contract is equivalent to mutual mistake. See also Automobile Ins. Co. v. United Elec. Serv. Co., Tex.Civ.App., 275 S.W.2d 833 (wr. ref. n. r. e.); 3 Pomeroy, Equity Jurisprudence, 5th ed. 1941, § 870a; 13 Williston on Contracts, 3rd ed. 1970, §§ 1548, 1557; Restatement, Contracts, §§ 71, 505 . . ”

In Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447 (1935), the court said:

“ . . . What the parties mutually intended and agreed is not the vital inquiry. The party seeking reformation must of course prove what the true agreement was, but his case is not made by proof that there was an agreement which is at variance with the writing. He must go further and establish the fact that the terms or provisions of the writing which differ from the true agreement made were placed in the instrument by mutual mistake . . . ”

Appellees also rely on testimony elicited from Charles L. Uhlig, executive vice-president and cashier of the First National Bank of Poth, to show that a mutual mistake occurred between the deceased and Mrs. Moore. In response to a hypothetical question, as to how a Certificate of Deposit is set up if it were to be payable to one person or another and the funds were to go to whomever survived, Uhlig testified the word “or” would be used on the instrument.

The Certificate of Deposit in this case was made payable to “Maida Cooper or Minnie or Nell Durham”. However, an examination of the record shows Uhlig was not present during the course of the transaction which occurred between the deceased and Mrs. Moore. In fact, Uhlig’s only contact with the deceased, on the day in question, was in directing her to Mrs. Moore’s desk. The deceased did not discuss with Uhlig the business she desired to transact that day. Therefore, Uhlig’s testimony is no evidence of probative force that a mutual mistake occurred between the deceased and Mrs. Moore as to the certificate reflecting survivorship rights.

Furthermore, the Texas Supreme Court has held that unless the contractual arrangement contains some reference to an intent that the survivor would have rights in the certificate, the use of the word “or”, in setting up the certificate, is not sufficient to establish survivorship rights. Forehand v. Light, 452 S.W.2d 709 (Tex.1970).

Appellees urge that Mrs. Moore’s statement is sufficient evidence establishing a third party beneficiary contract between the bank and the deceased. Appellees argue they have acquired a survivorship interest in the Certificate of Deposit and the funds in the checking account as beneficiaries under that contract. Having found Mrs. Moore’s statement inadmissible, we hold there is no evidence of probative force establishing a third party beneficiary contract.

Appellants also contend the trial court erred in awarding the funds on deposit in the checking account and the Certificate of Deposit to appellees because there is no evidence to support the jury’s finding the funds were a gift causa mortis. We agree.

In submitting Special Issue No. 1, the court instructed the jury that before a finding of a gift causa mortis could be made, it must find the following elements existed:

“1. That the donor had a present apprehension of impending death at the time;
2. That the donor intended to make an immediate gift of the property in question, subject to the right to revoke the gift if the donor should survive;
3. That the donor made delivery of the property in question to the donee or donees, wholly divesting donor of the possession and control thereof, subject to the right to revoke the gift if donor survived.

Delivery may be actual or constructive. A constructive delivery is such action on the part of the donor that shows the donor’s intent to make the property in question immediately available to the do-nee, subject to the right to revoke.

Whether there has been a delivery may be determined from all the facts and circumstances admitted in evidence.

4. That the donee or donees accepted the gift. There exists in law a presumption that a donee has not refused a gift of valuable property.
5. That the donor died as a result of the circumstance or condition that caused her apprehension of death at the time of the gift.

You are further instructed that the word ‘revoke’ means to annul or make void by recalling or taking back; to cancel, rescind and/or repeal.”

This court in Glover v. Moore, 544 S.W.2d 777 (Tex.Civ.App.- — Eastland 1976, no writ) applied the law as stated in State v. Abernathy, 431 S.W.2d 359 (Tex.Civ.App.— Amarillo 1968, writ ref. n. r. e.):

“ ‘. . . Our courts have uniformly held that in order to constitute a valid gift inter vivos or causa mortis, there must be a delivery of possession of the thing given; and the intention of the donor to vest in the donee unconditionally and immediately the ownership of the property delivered. Weems v. First National Bank of Winnsboro (Tex.Civ.App.) 234 S.W. 931; Wells v. Sansing, 151 Tex. 36, 245 S.W.2d 964; O’Donnell v. Halladay (Tex.Civ.App.) 152 S.W.2d 847 (ref’d w. o. m.); 27 Tex.Jur.2d, p. 158, Gifts, Sec. 12.’ ”

Appellees rely on a long line of established case law in this state allowing subsequent declarations of the donor to raise a fact issue of whether there had been a delivery of the chattel in question to the donee. Lord v. New York Life Insurance Co., 95 Tex. 216, 66 S.W. 290 (1902); Schauer v. Von Schauer, 138 S.W. 145 (Tex.Civ.App.—Austin 1911, writ ref’d); Brown v. Fore, 12 S.W.2d 114 (Tex.Comm’n App. 1929, holding approved); Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962). See also, McDaniel v. Adams, 531 S.W.2d 901 (Tex.Civ.App.—Houston (1st Dist.) 1975, writ ref’d n. r. e.). An examination of these cases illustrate the subsequent statements of the donor of the alleged act of delivery are in no way similar to the subsequent statements made by the deceased in the case at bar.

We have carefully examined the record and find the only statements made by the deceased “subsequent” to the alleged act of delivery, were made to Ms. O. C. Hosek, a close friend, who testified the deceased told her, “ . . . this is one thing that’s off my mind. I have this taken care of. Everything is like I want it . . . ” We hold this is no evidence of probative force that the deceased had “delivered” the funds in question, either actually or constructively, to the donees.

Furthermore, we hold the making of the Certificate of Deposit payable to “Maida Cooper or Minnie or Nell Durham”, and the “printed” names “or Minnie or Nell Durham” added on the bank’s ledger sheet indicating the deceased’s account, is no evidence of probative force that the deceased intended to divest herself of control and possession of the funds in question.

Finally, appellants argue the trial court erred in granting judgment awarding the player piano to Nell Durham because there was no evidence to support the jury finding an inter vivos gift was made. We agree.

As stated in State v. Abernathy, supra, to constitute a valid inter vivos gift, the donor must intend to vest in the donee “immediately” the ownership of the property “delivered”. The record fails to show the deceased intended to make an immediate gift of the piano to Nell Durham.

When asked what the deceased intended to do with the piano, Ms. 0. C. Hosek testified deceased had told her, “I’m going to enjoy it as long as I can and then it’s going to be Nell’s piano . . . ” (emphasis added) On cross-examination, Ms. Hosek continued to testify as follows:

“Q So based on what you have stated, it appears that she said that’s going to be Nell’s piano?
A Right.
Q And thereafter she said Nell’s piano?
A Right.
Q But it stayed in her house, didn’t it?
A Yes, it stayed there. She was going to play it a while.
Q All right. When was it supposed to be Nell’s piano?
A When she got tired of it. When she got through with it.”

It is clear from this testimony the deceased did not intend for the gift to take effect immediately. Instead, the gift was to be effective at some later point in time when deceased “got tired of it” or “through with it”. We find no evidence to support the finding that Maida Cooper made a gift during her lifetime of the player piano to Nell Durham. A gift cannot be made to take effect in the future since a mere promise to give is unenforceable without consideration. Fleck v. Baldwin, 141 Tex. 340, 172 S.W.2d 975 (1943).

The judgment of the trial court is reversed and rendered that the funds on deposit in the checking account, the Certificate of Deposit and the player piano be placed in the possession and control of A. C. Cooper, Jr., administrator of the estate of Maida Cooper, deceased, for proper distribution.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    Mayme Kyle WARREN et al., Appellants, v. Lucille KYLE, Appellee.
    No. 12686.
    Court of Civil Appeals of Texas, Austin.
    April 5, 1978.

      Andrew Gary, Morgan & Gary, San Marcos, for appellants.
    Karl H. Moeller, Hooper, Robinson & Moeller, Austin, for appellee.
   O’QUINN, Justice.

By this lawsuit Lucille Kyle, now appel-lee, sought to establish her right to funds in excess of $2,000 held by Austin Municipal Federal Credit Union in a joint account opened in October of 1964 by appellee and Hardy Kyle, who died in 1976. Opposing claims to the funds were asserted by surviving brothers and sisters of Hardy Kyle.

After trial before the court without aid of a jury, the court entered judgment awarding the account to Lucille Kyle upon a finding and conclusion that appellee “ . . . is entitled to the rights and privileges as a community survivorship . . . [and] as community survivor was entitled to the proceeds remaining in the . Union account.” The court found that Hardy Kyle and Lucille Kyle were husband and wife under a valid common law marriage at the time the account with the credit union was established.

This appeal ostensibly is brought by the two sisters and two brothers of Hardy Kyle, who were cross defendants below after being impleaded by the credit union. The only appeal bond of record, however, reflects that Mayme Kyle Warren alone executed and filed the bond as principal. Ap-pellee Lucille Kyle has filed a motion to dismiss as to all appellants except Mayme Kyle Warren.

The record shows that Mayme Kyle Warren, Augustus Kyle, Sidney Kyle, and Sadie Kyle Hardge, cross defendants below, timely filed their joint notice of appeal. The only appeal bond in the record was executed by Mayme Kyle Warren as principal, and Augustus G. Kyle and Sidney G. Kyle signed the bond as the two sureties required under Rule 354, Texas Rules of Civil Procedure. Sadie Kyle Hardge, the fourth cross defendant below, does not appear in any capacity on the bond. The bond of record is “ . . . conditioned that the said Cross-Defendant and Appellant, MAYME KYLE WARREN, ET AL, shall prosecute their appeal with effect . ” following the earlier recitation as to the adverse judgment “ . from which judgment the said Cross Defendants, MAYME KYLE WARREN, ET AL, desire to make an appeal to the Court of Civil Appeals . . . ” (Emphasis added)

Rule 354 “ . . . require that the party appealing must be named as principal in the bond and that he must execute the bond as principal or have the bond executed by someone having legal authority to act for him.” (Emphasis added) Owen v. Brown, 447 S.W.2d 883, 885 (Tex.Sup.1969). Neither Augustus G. Kyle nor Sidney G. Kyle executed the bond in the record as principal, but acted in the capacity only of surety for Mayme Kyle Warren who was the principal. We conclude that neither Augustus Kyle nor Sidney Kyle has perfected an appeal from the judgment below, and they are hereby dismissed as appellants.

We are not unmindful of lenient actions by Texas courts in permitting amendments if the instrument can be said to be a bond (Owen v. Brown, supra), and in liberally construing the Rule requiring appeal bonds. Marshall v. Mullins, 258 S.W.2d 98 (Tex.Civ.App. Dallas 1953, writ ref’d n. r. e.). Appellee’s motion to dismiss certain appellants was filed in this Court on January 3, 1978. Since that time no reply to the motion has been filed, and no effort to seek amendment of the bond has been instituted in behalf of appellants. We are disposed, after this lapse of time, neither to invite an amendment, if permissible, nor to grant leave to amend, if appropriate. By liberal construction, we conclude, however, that Sadie Kyle Hardge may be included as an appellant by implication under language of the bond that “ . . . MAYME KYLE WARREN, ET AL, shall prosecute their appeal . . . ” Hollis v. Boone, 315 S.W.2d 350 (Tex.Civ.App. El Paso 1953, no writ).

The same construction is not available to Augustus G. Kyle and Sidney G. Kyle, since these parties, both in the body of the bond and in its execution, acted solely as sureties to the exclusion of their potential capacity as principals.

Appellants bring five points of error. The controlling issue is presented under the first two points attacking the trial court’s conclusion that Lucille Kyle and Hardy Kyle had a valid common law marriage at the time the account was opened in 1964.

We will overrule contentions of appellants that there was no evidence, and insufficient evidence, to support this result reached by the trial court, and will affirm the judgment.

It is undisputed that Hardy Kyle and Lucille Kyle were ceremonially married in 1937, and that this marriage ended in divorce in January of 1963. Lucille Kyle moved from San Marcos, where the couple lived, to Austin soon after the divorce.

In November of 1963 Hardy Kyle called Lucille Kyle by telephone from San Marcos to tell her he was sick and needed someone to look after him. Lucille Kyle drove to San Marcos and returned to Austin, bringing Hardy Kyle with her to her home, where she nursed him back to health. At the trial Lucille Kyle testified that they resumed living together as husband and wife and that “it seemed like we always was married anyway.” She added that they had sexual relations “as much as possible.”

With Lucille Kyle’s help, Hardy Kyle obtained employment with the City of Austin, after which the joint account was opened with the credit union in October of 1964. The couple continued living together until about March of 1966, after which they saw each other only periodically.

The wife of the pastor whose church the couple attended in Austin testified that the couple lived together in the same residence and that Hardy Kyle introduced Lucille Kyle to members of the church as his wife. The pastor’s wife also testified that the couple continued living together at the same address from late in 1963 and until sometime early in 1966. Several other witnesses testified also that the couple lived together and held themselves out as man and wife. Contradictory testimony was given by Mayme Kyle Warren and her brother Augustus Kyle, both interested witnesses and parties to the suit.

After Hardy Kyle left Lucille Kyle in March of 1966, Lucille Kyle entered into two marriages, one late in 1966 that lasted about three weeks and ended with a divorce, and a second in 1968 that ended in divorce about eighteen months later. The trial court found that the relationship between Hardy Kyle and Lucille Kyle, which ended with their separation in early 1966, was not terminated by divorce. Hardy Kyle died in July of 1976.

The trial court found, as recited in the judgment, “ . . . that Plaintiff Lucille Kyle and the deceased, Hardy Kyle, on or about November, 1963, resumed their marriage relationship; that a duly and legally constituted common-law marriage was entered into by and between the parties and that subsequent attempts at marriage by Plaintiff were nullities and that Plaintiff was the legally constituted common-law wife of decedent, Hardy Kyle, at the time of his death and is entitled to the rights and privileges as a community survivor.”

Appellants stress their contentions that there was no evidence, and insufficient evidence, of an express agreement, or an inference of agreement, between appellee and deceased, to be married in the period beginning with November of 1963.

Under the Texas Family Code, the marriage of a man and woman may be proved, in any judicial, administrative, or other proceeding, by evidence that “ . . . they agreed to be married, and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.” (Sec. 1.91, Texas Family Code). The Code, in the same section, provides that “In any proceeding in which a marriage is to be proved . [under the early provisions of the section] the agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married.”

This statute is recognized as an enactment of case law firmly established in this state. Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.Sup.1963); Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361 (1960); Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955).

The record contains abundant testimony that Lucille and Hardy Kyle lived together as man and wife and that each represented to other persons that they were married. There is testimony from Lucille Kyle indicating an agreement to be wife and husband, and in corroboration is the evidence of their joint savings account opened by them with the credit union in 1964.

In light of the fact that Lucille Kyle, subsequent to separation of the couple early in 1966, entered into ceremonial marriages with two other men while Hardy Kyle was living, the agreement between Lucille and Hardy Kyle to be married, which by statute may be implied or inferred from evidence which establishes cohabitation and common reputation, constitutes a presumption the trier of facts may find to be overcome by proof of the ceremonial marriages. In this case the trial court did not so find, but on the contrary expressly found, both in the judgment and in findings of facts and conclusions of law, that Lucille and Hardy Kyle agreed to enter into the common law marriage which the court found in effect continued until Hardy Kyle’s death, despite the fleeting marriages Lucille Kyle had with two other men during Hardy Kyle’s lifetime.

It is settled that the existence or not of a common law marriage is an issue of fact to be determined by the trier of the facts. Walton v. Walton, 228 S.W. 921 (Tex.Com.App.1921, jdgmt. adopted); Hodge v. Hicks, 229 S.W.2d 893 (Tex.Civ. App. Dallas 1950, aff’d 149 Tex. 390, 233 S.W .2d 557 (1950)); Humphreys v. Humphreys, supra.

In each of the cases cited the trier of the facts found that a common law marriage did not exist under the facts. In each case the presumption of agreement to be married was tested against proof of a ceremonial marriage to a third person, or proof of a divorce against a third person, from which the trier of facts was allowed to conclude there was no common law marriage.

In Walton v. Walton, supra, a jury found there had been no common law marriage, although the couple lived together six years, holding themselves out to be married, during which time they had three children. After they separated, one of the persons contracted a ceremonial marriage with a third person. The court of civil appeals reversed the judgment of the trial court based on the jury findings and held that the common law marriage had been conclusively established. The commission of appeals reversed the judgment of the court of civil appeals and affirmed that of the trial court, and held that the presumption of the common law marriage based on habit and reputation is one which may be overcome by proof of the ceremonial marriage. The commission of appeals pointed out that there was abundant evidence to support the common law marriage, but, in effect, that the issue is for determination by the trier of the facts and is not to be decided by an appellate court as a matter of law.

The trial court in Hodge v. Hicks, supra, found that plaintiff failed to establish a common law marriage in a suit brought to establish plaintiff’s right to inherit from her natural father, who she alleged was the common law husband of plaintiff’s mother. After living together under circumstances indicating a common law marriage, the couple separated and the man entered into a ceremonial marriage with another woman during the lifetime of plaintiff’s mother.

The court of civil appeals affirmed judgment of the trial court and held that the presumption of common law marriage was overcome by proof of the later ceremonial marriage. The supreme court affirmed the judgment of the court of civil appeals, citing Walton v. Walton, supra. The supreme court stated, “Under very similar facts, [in Walton] it was held . . . that the evidence did not establish as a matter of law that a common law marriage existed.” The fact of a subsequent ceremonial marriage to a third person, the court said, will “ . . . constitute some evidence from which the district court could reasonably conclude that there was in fact no agreement between . . . ” plaintiff’s natural parents “ . . .to become husband and wife, in spite of the evidence indicating the contrary ...” 233 S.W.2d 557, col. 2.

In 1963 the supreme court considered the inferred agreement when overcome, in the view of the trier of the facts, by proof of a divorce proceeding by one of the parties against a third person. Humphreys v. Humphreys, supra. The trial court had found no agreement to be married, the court of civil appeals had reversed the trial court’s judgment, but the supreme court, citing Hodge, supra, held that the trial court could reasonably conclude that there was no agreement to become husband and wife. The court stated, “Since the trial court found that they did not enter into a common law marriage, the narrow question is whether an agreement to marry has also been established as a matter of law. In determining that question, the evidence must be viewed in the light most favorable to the finding of the trial court.” 364 S.W.2d 178, col. 2.

As recent as 1971, in a case decided by a court of civil appeals, the identical issue was considered, with the court citing and following Humphreys, Hodge, and Walton, supra. Wells v. Hames, 464 S.W.2d 393, 394 (Tex.Civ.App. Houston (14th) 1971, writ ref’d n. r. e.). In Wells evidence of a common law marriage appeared to meet the basic requirements, except that the implication of agreement was found by the trial court to be overcome by proof of a ceremonial marriage by one of the persons alleged to have a common law marriage.

In the case on appeal the trial court found that there did exist a common law marriage, and that the implied agreement was not overcome by proof of ceremonial marriages by Lucille Kyle to third persons while Hardy Kyle was living. The trial court found that Hardy Kyle and Lucille Kyle were never divorced from each other after separation in 1966 and concluded that the two fleeting ceremonial marriages of Lucille Kyle were only “ . . . attempts at marriage . . . [and] were nullities ...”

Appellants contend that the evidence is insufficient to support the trial court’s finding of fact. Made at the appellate level, the contention is within the peculiar and conclusive factual jurisdiction of this Court, and in deciding the question all the evidence must be considered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.Sup.1965). We hold that there was sufficient evidence to support the trial court’s finding and conclusion that Lucille and Hardy Kyle had a valid common law marriage.

Under points three and four, appellants urge error in failure to join certain parties. In declaring the later marriages of Lucille Kyle “nullities,” error is claimed because the two men in these ceremonies were not joined. It is urged also that in declaring Lucille Kyle the “sole heir” of Hardy Kyle, it was error not to join all possible heirs. We overrule both points of error. See Rule 39, Texas Rules of Civil Procedure; Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex.Sup.1974); Dulak v. Dulak, 513 S.W.2d 205 (Tex.Sup.1974).

Appellants by their fifth and final point attack the trial court’s finding that title to property acquired by Lucille and Hardy Kyle during their first and ceremonial marriage remained in the names of Hardy and Lucille Kyle. We overrule the point. The pleadings of the parties did not place the property in issue, nor did the court’s judgment dispose of the property. Even though immaterial and not in issue, the trial court’s conclusions present no ground for reversal of the judgment. “The question in every such case must be whether or not the material facts found by the court are sufficient to support the judgment.” Andrews v. Key, 77 Tex. 35, 13 S.W. 640, 641 (1890); Becker v. Schneider, 335 S.W.2d 850, 853 (Tex.Civ.App. Austin 1960, no writ).

The judgment of the trial court is affirmed.


author: KLINGEMAN, Justice.

text:
    Barry M. BELLER, M. D., Appellant, v. Jose Garcia DE LARA, Appellee.
    No. 15894.
    Court of Civil Appeals of Texas, San Antonio.
    April 5, 1978.
    Rehearing Denied May 17, 1978.
    Oscar C. Gonzalez, Dobbins, Harris & Gonzalez, San Antonio, for appellant.
    Phillip D. Hardberger, Hardberger, Bran-ton & Herrera, Inc., San Antonio, for appel-lee.
   KLINGEMAN, Justice.

This is a suit by Jose Garcia De Lara, an architect, against Dr. Barry M. Beller for damages for breach of contract and, in the alternative, on quantum meruit. The contract involved was a Standard Form of Agreement Between Owner and Architect of the American Institute of Architecture, and covered the construction of a lake house at Lake Lyndon B. Johnson for defendant. Defendant terminated the contract after he had paid plaintiff a small amount for services during the early phases of the contract. Trial was to a jury with a number of special issues submitted and judgment was entered on the jury’s verdict that plaintiff recover from defendant the sum of $3,000 less the sum of $721.84 paid by defendant, and for attorney’s fees in the amount of $2,500.

The plaintiff is a registered architect. The contract calls for a fee of eight per cent of the construction cost, payable at various stages of the contract, with certain additional services to be paid for on a basis of $12 per hour. The contract contains this provision as to termination of the contract:

ARTICLE 8
TERMINATION OF AGREEMENT This agreement may be terminated by either party upon seven days’ written notice should the other party fail substantially to perform in accordance with its terms through no fault of the other. In the event of termination due to fault of others than the Architect, the Architect shall be paid his compensation for services performed to termination date, in- . eluding Reimbursible Expenses then due and all terminal expenses.

Plaintiff testified that he took the contract on a moonlight basis so he charged eight per cent rather than the normal 12 per cent. He stated that the majority of the work of an architect is completed before construction begins; that he had frequent meetings with defendant to discuss the design phases; that the construction documents were 95 per cent finished; that any qualified builder or contractor could take the plans made by him and build the house; that in connection with the work he had employed a structural engineer to determine the structural beams, stresses, etc., and had been billed for such services. He testified that defendant had fired him by letter. The record contains as an exhibit a letter terminating the contract, recited to be in accordance with Article 8 of the contract, and also making demand for the return of the sum of $721.84 previously paid by defendant to plaintiff.

It is not disputed that the house was never constructed. The architect’s contract provides that the architect’s fee is to be paid in five phases:

1. schematic 15 per cent
2. design development 35 per cent
3. construction document 75 per cent
4. bidding 80 per cent
5. construction administration 100 per cent

Dr. Beller testified that he and plaintiff had signed the contract; that his banker had requested complete plans before any money could be lent; that plaintiff took too much time and interest rates were going up; that it was understood that the house would be built by Christmas but by November 11 he had never received a set of design developments; that he had his attorney send a letter terminating the contract.

There is testimony by a building contractor that from the plans and specifications made by plaintiff, he could build the house. An architect testified that plaintiff has an excellent reputation as an architect in the San Antonio area; that a great deal of work went into the De Lara drawings; and that in his opinion the value of architect’s services on this $69,000 house was 14 per cent of the cost. Another architect testified that the plans were well done; that the reasonable value of the services performed by plaintiff is in the neighborhood of $5,500 to $6,000.

An architect called by defendant testified that plaintiff’s latest plans do not complete the design phase (phase 2) and that he could not prepare phase 3 unless phase 2 was completed; that at mid-phase, the drawings would be of some value, but basically of no value because you could not get a completed price on the house.

A disinterested attorney from San Antonio testified that reasonable attorney’s fees in the case would be $4,500.

By several points of error, defendant complains that the trial court erred in submitting Special Issues Nos. 3 and 4 because the undisputed evidence established that the parties entered into an express contract and quantum meruit was not applicable as a matter of law. The gist of defendant’s contention in this regard is that you cannot recover on an implied contract when there is an express contract, and that plaintiff’s recovery is limited to the contract. This rule is set forth in Woodard v. Southwest States, Inc., 384 S.W.2d 674, 675 (Tex.1964) as follows:

Recovery on an express contract and on quantum meruit are inconsistent. Where there exists a valid express contract covering the subject matter, there can be no implied contract.

Plaintiff asserts that he pleaded both an express contract and, in the alternative, quantum meruit, and relies on the line of cases and authorities that a plaintiff can seek to recover both on an express contract and upon quantum meruit, and can allege and recover as the evidence may show. Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102 S.W.2d 1031 (1937); Olivares v. Porter Poultry & Egg Company, 523 S.W.2d 726 (Tex.Civ.App.— San Antonio 1975, no writ); Freeman v. Carroll, 499 S.W.2d 668 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.); Coon v. Schoeneman, 476 S.W.2d 439 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); Montclair Corporation v. Earl N. Lightfoot Paving Co., 417 S.W.2d 820 (Tex.Civ.App.—Houston 1967, writ ref’d n. r. e.); Clower v. Brookman, 325 S.W.2d 440 (Tex.Civ.App.—San Antonio 1959, no writ); 13 Tex.Jur.2d Contracts, § 7 at 120 (1960); Rule 48, Tex.R.Civ.P.

In Montclair Corporation v. Earl N. Lightfoot Paving Co., supra, the court said:

It has long and many times been held in this State that though there be an express contract there may be a recovery in quantum meruit if there has been partial performance as distinguished from full performance (citing authorities).

In Freeman v. Carroll, supra, the Court said:

The complaint seems to be that it would be inconsistent for the appellee to seek what he says he is entitled to under the contract and at the same time seek to recover in quantum meruit what his labor and materials are reasonably worth. It is true that an express contract and quantum meruit are distinct and different relationships and inconsistent ideas, but the same record may contain evidence which will support either theory. A plaintiff may allege both theories and recover as the evidence may show.

Coon v. Schoeneman, supra, was a suit by a builder to recover from the owner a share of the profits from the sale of property and, in the alternative, for the reasonable value of his services as builder. The trial court excluded evidence of value of his services and sustained the defendant’s motion for instructed verdict. Plaintiff, on appeal, asserted that the trial court erred in refusing to permit proof of the elements of quantum meruit and in refusing to submit issues on quantum meruit. The appellate court reversed and remanded the case and said:

The party who has wrongfully prevented the other party from completing the contract should not benefit from his own wrong. Consequently, we hold that even though the contractual compensation was contingent on profits, the same rule of restitution applies as in other eases where defendant’s breach has prevented further performance by plaintiff. Plaintiff should have his election to treat the contract as rescinded and recover the reasonable value of his services.

The written contract herein involved contains a provision as to termination of the contract which has been heretofore set forth.

The jury in answer to Special Issue No. 1 found that plaintiff did not substantially perform his contract with defendant. It is undisputed that the contract was terminated by defendant; and that at the time of the termination there had been part performance of the contract. The jury further found that plaintiff performed services of value on behalf of defendant, and that the reasonable value of the services was $3,000. These findings are sufficiently supported by the evidence.

We find no reversible error in the submission of the issues complained of by defendant in his Points of Error Nos. 1 and 2, and such points of error are overruled.

Defendant’s 3rd and 4th points of error assert that the court erred in rendering judgment for plaintiff on the jury’s findings that plaintiff performed services of value for defendant in that there was no evidence to support such findings and such finding is against the great weight and preponderance of the evidence. Defendant’s 5th and 6th points of error assert that there is no evidence and factually insufficient evidence that the sum of $3,000 was the reasonable value of the services performed by plaintiff.

The value evidence has been summarized in some detail before and reference is here made to such summary.

There are numerous cases upholding a recovery by an architect for work performed, such as plans and specifications, even though the improvements are never constructed. Chenault v. County of Shelby, 320 S.W.2d 431, 435 (Tex.Civ.App.—Austin 1959, writ ref’d n. r. e.); Baylor University v. Carlander, 316 S.W.2d 277 (Tex.Civ.App.—Dallas 1958, writ ref’d n. r. e.); Texas Delta Upsilon Foundation v. Fehr, 307 S.W.2d 124 (Tex.Civ.App.—Austin 1957, writ ref’d n. r. e.); Waller County v. Free-love, 210 S.W.2d 602, 605 (Tex.Civ.App.—Galveston 1948, writ ref’d n. r. e.).

Texas Delta Upsilon Foundation v. Fehr, supra, was a suit by an architect to recover for services rendered under an employment contract which provided that if any work designed by the architect was abandoned he was to be paid for the services rendered. The Court of Civil Appeals affirmed the judgment for the architect for the reasonable value of the services performed, saying:

The fact that plaintiffs were working under a contract would not prevent them from recovering under an implied contract or for recovery on quantum meruit for a reasonable value of the services actually performed.

In Baylor University v. Carlander, supra, an architect sued Baylor University for payment for preparation of plans for a Bible Building which were rejected and for which the University refused to pay. Judgment in favor of the architect was affirmed and the Court stated the applicable rule as follows:

“The true test is not the value of the services of [sic] the defendant, as appellant contends, but what such services sell for in the market, or synonymously stated, what the usual, reasonable and customary compensation is for such services.”

The jury’s answers to Special Issues Nos. 3 and 4 are amply supported by the evidence. Defendant’s Points of Error Nos. 3, 4, 5 and 6 are overruled.

Defendant by his last point of error complains that the court erred in rendering judgment for attorney’s fees in the amount of $2,500 because (a) plaintiff can only recover on the contract and the contract does not provide for recovery of attorney’s fees; (b) the plaintiff did not plead or prove presentment and failure to pay; (c) the jury’s answer to Special Issue No. 5 (reasonable attorney’s fees) is not sufficiently supported by the evidence.

We find no merit in such point of error and it is overruled. The only evidence with regard to attorney’s fees was by a disinterested attorney from San Antonio, Mr. Frank Southers, who testified that reasonable attorney’s fees would be $4,500. The jury awarded $2,500.

The correct rule is set forth in Brown v. Cox, 459 S.W.2d 471, 474 (Tex.Civ.App.— Houston [14th District] 1970, writ ref’d n. r. e.), a suit by an architect for services rendered under a written contract of employment. The court stated:

The Supreme Court has held that a contract for purely personal services or for labor only will support an award of attorney’s fees, and this is true whether the contract expressly provides for attorney’s fees or not. [citations omitted]. An architect’s direct services to an owner are such ‘personal services’ as are contemplated by Art. 2226, V.A.T.S., and the trial court should have permitted recovery of attorney’s fees as proven and as found by the jury under the circumstances.

See also Allison v. Douglas, 531 S.W.2d 445 (Tex.Civ.App.—Waco 1975, no writ); Olivares v. Porter Poultry & Egg Company, supra.

We find no reversible error in the trial court. The judgment is affirmed.

MURRAY, J., did not participate in the disposition of this appeal.

      . In answer to the special issues here involved, the jury found: (a) that plaintiff did not substantially perform his contract with defendant; (b) that plaintiff performed services of value on behalf of defendant in connection with the proposed lake house; (c) the reasonable value of such services was $3,000; (d) a reasonable attorney’s fee for plaintiffs counsel was $2,500.


author: RALEIGH BROWN, Justice.

text:
    HOUSTON MOBILFONE, INC., et al., Appellants, v. The PUBLIC UTILITY COMMISSION of Texas et al., Appellees.
    No. 5143.
    Court of Civil Appeals of Texas, Eastland.
    April 6, 1978.
    James K. Presnal, Austin, for appellants.
    David R. Richards, Clinton & Richards, Austin, E. L. Atkins, Arlington, Ronald Clower, Dallas, G. William Fowler, Odessa, Joe N. Pratt, Asst. Atty. Gen., Austin, for appellees.
   RALEIGH BROWN, Justice.

For purposes of this appeal, the following causes have been consolidated: Houston Mobilfone, Inc., Houston Radiophone Service and Radio Dispatch, Inc. v. The Public Utility Commission of Texas and Aircall of Texas, Inc.; Houston Mobilfone, Inc., Houston Radiophone Service and Radio Dispatch, Inc. v. The Public Utility Commission of Texas and Morrison Radio Relay; Houston Mobilfone, Inc., Houston Radiophone Service and Radio Dispatch, Inc. v. The Public Utility Commission of Texas and Electro-dyne, Inc.; and, Radio Dispatch, Inc. v. The Public Utility Commission of Texas and Answer Exchange, Inc. Although, there are multiple appellants and appellees, we shall refer to them in the singular.

The common issue for determination is whether or not appellant timely filed its petition for judicial review of the granting of a Certificate of Convenience and Necessity by the Public Utility Commission of Texas. The district court, in granting a plea in abatement, held it lacked jurisdiction because of appellant’s failure to timely file its petition. This consolidated appeal is from such a ruling. We affirm.

Appellee applied to the Public Utility Commission of Texas for a Certificate of Public Convenience and Necessity which appellant protested. The Commission on June 14, 1976, issued its order granting the certificate to appellee. On June 29, 1976, appellant filed its motion for rehearing with the Commission and on August 4, 1976, the Commission issued an order overruling it. Appellant then on September 2, 1976, filed its petition for review pursuant to Section 19(b) of Article 6252-13a, the Administrative Procedure and Texas Register Act. The trial court held such filing was not timely, therefore, it lacked jurisdiction to hear the appeal.

In two points of error, appellant urges the trial court erred in holding (1) that it had not timely filed for judicial review of agency decision; and, (2) that the time limits of Article 6252-13a § 19(b) were mandatory.

Sections 16 and 19 of the Administrative Procedure Act are the sections that provide for judicial review of administrative agency decisions. Section 16 provides in part:

“(e) Except as provided in Subsection (c) of this section, a motion for rehearing is a prerequisite to an appeal. A motion
for rehearing must be filed within 15 days after the date of rendition of a final decision or order. Replies to a motion for rehearing must be filed with the agency within 25 days after the date of rendition of the final decision or order, and agency action on the motion must be taken within 45 days after the date of rendition of the final decision or order. If agency action is not taken within the 45-day period, the motion for rehearing is overruled by operation of law 45 days after the date of rendition of the final decision or order. The agency may by written order extend the period of time for filing the motions and replies and taking agency action, except that an extension may not extend the period for agency action beyond 90 days after the date of rendition of the final decision or order. In the event of an extension, the motion for rehearing is overruled by operation of law on the date fixed by the order, or in the absence of a fixed date, 90 days after the date of the final decision or order.”

Section 19 provides in part:

“(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this Act
(b) Proceedings for review are instituted by filing a petition within 30 days after the decision complained of is final and appealable . . .”

We must resolve when the Commission’s Order became final and appealable.

Appellant argues that the effect of the August 4 order issued by the Commission was not only to overrule appellant’s motion for rehearing, but also to extend the time by written order for agency action to August 4, which is well within the 90-day limit imposed by Subsection (e) of Section 16. It urges the decision of the Commission granting the certificate to appellee did not become final and appealable until August 4, 1976; therefore, its petition for review, having been filed on September 2,1976, was within the 30-day period as required by Section 19(b).

Appellee contends that for the district court to have jurisdiction, the prerequisite of the Administrative Procedure Act must be met. The right of appeal is statutorily given and is strictly governed by the provision of the authorizing statute. We agree with such contention for as stated by the court in Texas Department of Public Safety v. Morris, 436 S.W.2d 124 (Tex.1968):

“Schwantz v. Texas Department of Public Safety, 415 S.W.2d 12 (Tex.Civ. App.1967, writ ref.) settled the question about jurisdiction on appeal from orders of the Department of Public Safety. In an opinion which this court approved, the court said:
‘No right of appeal from the orders involved in the instant case, therefore, exists ‘in the absence of statutory authority; and where such authority is given the proceeding authorizing it is a special one and governed strictly by the provisions of the authorizing statute.’ City of Strawn v. Board of Water Engineers, Tex.Civ.App., 134 S.W.2d 397, 398, writ refused. ‘The general rule is that where the cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not maintainable.’ Mingus v. Wadley (1926), 115 Tex. 551, 285 S.W. 1084, 1087. See Goff v. State Board of Insurance, Tex.Civ.App., 319 S.W .2d 383, 385, no writ.

Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1089 (1926) stated the rule:

‘The rule is well settled in most jurisdictions and in this state ‘that there is no presumption of jurisdiction where a court, although it is one of general jurisdiction, exercises special statutory powers in a special statutory manner or otherwise than according to the course of the common law, since under such circumstances the court stands with reference to the special power exercised on the same footing with courts of limited and inferior jurisdiction.’ ”

The court in Stanfield v. Texas Department of Public Safety, 422 S.W.2d 14 (Tex.Civ.App.—Dallas 1967, writ ref. n. r. e.) said:

“It is an established principle of law that the right to appeal from an administrative order to the courts is not a natural or inherent one but is one that may be granted or withheld at the discretion of the Legislature. Such right does not exist unless specifically granted by statute. Therefore, if the Legislature creates an administrative agency it may prescribe rules and regulations governing such body and the method by which the rights determined by such body shall be enforced. The Legislature may also prescribe for judicial review of administrative action and in such cases the method so prescribed must be followed in order to confer jurisdiction upon the court. City . of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951); Board of Equalization of City of Fort Worth v. McDonald, 133 Tex. 521, 129 S.W.2d 1135 (1939); Fire Department of City Of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664 (1949); 1 Tex.Jur.2d, Administrative Law and Procedure § 34, pp. 673-674, §§ 35 and 36, pp. 674-676; 2 Am.Jur.2d, Administrative Law, § 557.”

The Commission in the case at bar failed to act on appellant’s motion for rehearing within the 45-day period as provided in 16(e); nor did the Commission by written order within the original 45 days grant an extension of time.

The language contained in Section 16(e) of the Administrative Procedure Act is similar to that contained in Rule 329b(4), T.R. C.P., which states:

“4. It shall be the duty of the proponent of an original or amended motion for new trial to present the same to the court within thirty (30) days after the same is filed. However, at the discretion of the judge, an original motion or amended motion for new trial may be presented or hearing thereon completed after such thirty (30) day period. Such delayed hearing shall not operate to extend the time within which the original or amended motion must be determined, unless such time be extended by agreement as provided for in the preceding subdivision of this rule. In the event an original motion or amended motion for new trial be not presented within thirty (30) days after the date of the filing thereof, and the judge in his discretion refuses to consider the same or refuses to hear evidence relating thereto, such motion will be overruled by operation of law forty-five (45) days after the same is filed, unless disposed of by an order rendered on or before said date. In the event the decision of the motion is postponed by any written agreement as provided in subdivision 3 of this rule then any such original or amended motion, if not determined by the court, will be overruled by operation of law ninety (90) days • after the same is filed or on the latest day certain agreed upon, whichever occurs first.”

This rule was effective and had been construed by the courts of this state when the Legislature enacted the Administrative Procedure and Texas Register Act. In such event, the Legislature is presumed to have taken notice of court’s decisions construing Rule 329b(4), T.R.C.P., and such judicial construction must, therefore, be read into Section 16(e) of the Administrative Procedure Act. Humble Pipe Line Co. v. State, 2 S.W.2d 1018 (Tex.Civ.App.—Austin 1928, writ ref’d).

Rule 329b(4) has been interpreted to provide that a motion for new trial is overruled by operation of law 45 days after it is filed if it has not been determined within that time, and the time for determining the motion has not been postponed by written agreement of the parties. In such event, a subsequent order purporting to overrule the motion is a nullity. Missouri-Kansas-Texas Railroad Company v. Chesher, 354 S.W.2d 645 (Tex.Civ.App.—Texarkana 1962, writ ref. n. r. e.); Haase v. Greutzmac.her, 521 S.W.2d 666 (Tex.Civ.App.—San Antonio 1975, no writ).

Appellant’s motion for rehearing was, therefore, overruled by operation of law on July 29, 1976, and the August 4, 1976, order was a nullity that did not operate to extend the time for filing a petition for review under Section 19(b) of the Administrative Procedure Act. The order of the Commission, therefore, became final and appealable on July 29,1976. Appellant filed its petition for review 35 days after the case became final and appealable, thus it failed to timely file its petition for review as provided by Section 19(b) of the Administrative Procedure Act, and the trial court correctly sustained appellee’s plea in abatement and dismissed appellant’s suit.

We also agree that the time limits of Article 6252-13a are mandatory.

The court in Calvert v. Texas Pipe Line Company, 517 S.W.2d 777 (Tex.1974) said:

“The fundamental and dominant rule controlling the construction of a statute is to ascertain if possible the intention of the Legislature expressed therein. Sec. 6, Article 10, Vernon’s Ann.Revised Civil Statutes. In Calvert v. British-American Oil Producing Co., 397 S.W.2d 839 (Tex. 1965), at 842 this Court said:
‘Article 10, Vernon's Annotated Civil Statutes, provides general rules for construing all civil statutory enactments. The article provides that the provisions of statutes shall be liberally construed with a view to effect their objects. The courts necessarily look diligently for the intention of the Legislature as the intention of the Legislature is the dominant consideration in construing a statute. See State v. Dyer, 145 Tex. 586, 200 S.W.2d 813 (1947); Mclnery v. City of Galveston, 58 Tex. 334 (1883); City of Mason v. West Texas Utilities Go., 150 Tex. 18, 237 S.W.2d 273(1951).’”

The legislative intent as expressed by the language of the Administrative Procedure Act is clear and unambiguous. Its purpose is to afford the minimum standards of uniform practices and procedures for state agencies and to restate the law of judicial review of agency action. Without a mandatory adherence to the time limits specified in the act, the finality of administrative agency decisions would be uncertain and not in the public interest. The Legislature would not so intend.

We have considered and overruled all points of error.

The judgment is affirmed.


author: DODSON, Justice.

text:
    Leon FIELDS, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 8864.
    Court of Civil Appeals of Texas, Amarillo.
    April 10, 1978.
    Appellant’s and Appellee’s Rehearing Denied May 8, 1978.

      Brown & Brown (Phill Brown), Lubbock, for appellant.
    Crenshaw, Dupree & Milam (Cecil Kuhne), Lubbock, for appellee.
   DODSON, Justice.

This is a case under the Workmen’s Compensation Act. After an award by the Industrial Accident Board the workman, appellant Leon Fields, brought suit against the insurer, appellee Texas Employers’ Insurance Association, seeking total and permanent incapacity benefits for an injury sustained on May 17, 1975, while employed by Linois Well Service. The jury found that the workman received an injury in the course of his employment which was a producing cause of total incapacity from May 17, 1975, until April 29, 1976, followed by partial incapacity beginning on April 30, 1976, and ending June 10, 1976. The trial court entered judgment for Fields in the amount of $811.17 after crediting the insurance company with paid compensation benefits. Fields appeals this judgment. The judgment of the trial court is affirmed.

Fields sustained his injury when the oil field equipment he was operating collapsed during an oil well pulling operation. He was treated for the injury by four doctors of his choice. Each of the doctors diagnosed his primary injury as right epididymitis. His condition fluctuated for several months. Then Dr. Avant performed a right epididymectomy. The insurance company paid all the medical expenses and did not refuse any medical treatment of his injury. Fields returned to work in the early summer of 1976 and was working at the time of trial.

Mr. Fields contends the judgment should be reversed and the cause remanded for a new trial for several reasons. He maintains that the trial court should have granted a new trial because of jury misconduct; that the jury’s verdict on the issue of partial incapacity is against the great weight and preponderance of the evidence; that the trial court erroneously permitted the insurance company to reopen the evidence to show the amount of compensation paid him; and that the evidence is factually insufficient to support the trial court’s finding of the amount of compensation previously paid and credited in the judgment.

The insurance company says Fields failed to show jury misconduct and that the trial court did not abuse its discretion in failing to grant a new trial on this ground. Three jurors testified at the new trial hearing. Fields purported to establish that the jury agreed in advance of answering the partial incapacity issue that the insurance company should win and then attempted to bring about the desired result without considering the evidence. Particularly, he says the jury erroneously chose the date of June 10,1976, to end Fields’ partial incapacity because he failed to keep an appointment with Dr. Avant on that day, and that such action was jury misconduct.

Fields had the burden to establish jury misconduct and harmful error in this regard. Ordinarily, the occurrence of jury misconduct is a question of fact to be determined by the trial court, which has wide latitude in making its determination. In the absence of a clear showing of abuse of discretion, the appellate court is bound by the trial court’s determination. See Morgan v. State, 343 S.W.2d 738 (Tex.Civ.App.—El Paso 1961, writ ref’d n. r. e.).

Fields made no request and the trial court did not file findings of fact and conclusions of law on the misconduct matter. Under these circumstances, the appellate court must presume that every disputed fact issue was found by the trial court in support of the judgment rendered. Collins v. Collins, 540 S.W.2d 497 (Tex.Civ.App.—Tyler 1976, no writ). The trial court’s failure to find jury misconduct means that Fields failed to carry his burden of persuasion on this issue. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973). Our review of the testimony elicited from the jurors at the motion for new trial hearing reveals that Fields was attempting to probe the jury’s mental processes in arriving at its answers to the issues. The testimony totally fails to show any agreement in advance to answer any issue favorably to either party. Under the circumstances of this case, we conclude that the trial court clearly did not abuse its discretion in failing to find jury misconduct and grant Fields a new trial on this allegation.

Fields also avers that the jury’s finding that his partial incapacity ended June 10, 1976, is so against the great weight and preponderance of the evidence as to be manifestly wrong. This contention merits consideration of the evidence.

Two days after his injury Fields saw the first of the four doctors to treat him. After treating him, the first doctor released Fields to full duty on May 22, 1975. Four days later Fields contacted another doctor who hospitalized him for four days of treatment. Fields was discharged with instructions to wear a truss and return for evaluation of his ability to return to work. After missing two appointments Fields complained of pain and was referred to Dr. Hewitt who also hospitalized him. He was released in good condition with his epididymitis almost completely resolved. Dr. Hewitt’s associate, Dr. Avant, later observed that “Mr. Fields most likely has a chronic epididymitis and vastis which has undoubtably been aggravated by his failure to take his medication as prescribed. . If Mr. Fields should require a right epididy-mectomy to rid him of the recurrent bouts of epididymitis, his disability will be only temporary.”

On April 1, 1976, Dr. Avant performed a right epididymectomy on Fields. He was discharged from the hospital on April 3, 1976, and followed with a post operative examination on April 29, 1976. Dr. Avant said in reviewing his course of treatment that Fields’ “condition waxed and waned, and I feel that until he underwent surgery on April 1, 1976, that he was indeed disabled in terms of performing his usual type of labor. From the standpoint of heavy work that Mr. Fields was engaged in prior to his injury I would say that his disability was complete from the dates of September 15, 1975, until April 29, 1976.” Dr. Avant further said, “The diagnosis for which Mr. Fields was specifically treated by me was chronic relapsing right epididymitis. This will not occur because the epididymis has been removed. . . ( . It would be a speculation to say that he will have recurrence of his problem on the left side. The truth of the matter is that he does have persistence of organisms in his urinary tract which if not suppressed or eradicated with antibiotic therapy can cause recurrence of his infection, either spontaneously or from recurrent traume to the genitalia.” Dr. Avant also testified concerning a “guarded prognosis” which he related to the chance of “sustaining recurrent injury to the portions of the urinary tract . . . .”

In the early summer of 1976, Fields returned to work for another employer in the restaurant business in Post, Texas. He worked as a dishwasher and then he was promoted to cook-helper. In December 1976, Fields worked at a gin as a suction hand for several days to make some quick money for his wife’s hospitalization to give birth to a baby. Subsequently, he returned to restaurant work and continued in this employment at the time of trial.

Unfortunately, there is no precise formula by which incapacity may be measured and the extent and duration of disability is at best an estimate. Gulf Insurance Company v. Hodges, 513 S.W.2d 267, 272 (Tex.Civ.App.—Amarillo 1972, no writ); Maryland Casualty Company v. Davis, 464 S.W.2d 433, 438 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.). Normally, the extent and duration of incapacity is a fact issue for the jury. Montoya v. American Employers Insurance Company, 426 S.W.2d 661, 662 (Tex.Civ.App.—El Paso 1968, writ ref’d n. r. e.). Also, the fact that an injured workman has returned to work and earned money does not preclude him from recovering benefits for the time he was gainfully employed; however, the fact of employment is of probative weight which the jury is entitled to consider in determining the extent and duration of incapacity. Also, the jury is not required to accept uncontroverted expert medical opinion testimony on incapacity. Aguirre v. Pan American Insurance Company, 417 S.W.2d 900, 902 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.); Texas General Indemnity Company v. Shick, 372 S.W.2d 360, 363 (Tex.Civ.App.—Eastland 1963, no writ). See also Esteve Cotton Company v. Hancock, 539 S.W.2d 145, 158 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.).

In this case, the evidence is ample to support the jury’s finding on incapacity. We have considered all of the evidence in this record, both favorable and unfavorable to Fields’ position and we conclude that the jury’s finding concerning the duration of partial incapacity is not so against the great weight and preponderance of the evidence as to be manifestly unjust or wrong.

The insurance company contends that the trial court properly permitted it to reopen the closed testimony to show the amount of compensation paid to Fields. Rule 270 of the Texas Rules of Civil Procedure provides: “At any time the court may permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice. Provided in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.” (emphasis added) Under this rule the trial court has discretion to permit additional evidence on a noncontroversial matter in a jury case even after the verdict is received.

The insurance company pleaded generally the payment of compensation to Fields and prayed for credit of such payments against any award in his favor. This pleading was not excepted to by Fields. Fields and his wife both testified the insurance company paid compensation in the amount of $70 per week beginning after his accident. They said the insurance company stopped payment once, but continued to pay until after the epididymectomy operation. Fields did not dispute receiving compensation payments and did not controvert the amount of compensation the insurance company claimed it paid. In short, the matter was not a disputed or controverted issue. The trial court did not abuse its discretion by permitting the insurance company to reopen the evidence.

Fields now contends the evidence is factually insufficient to show the amount paid by the insurance company. In this connection, the insurance company, on proper predicate, introduced its business records showing the amount of compensation paid to Fields. The evidence shows compensation paid for 45 weeks at $70 per week for a total of $3150. The paid periods were May 24, 1975, to March 5, 1976, then March 31, 1976, to April 20, 1976. This evidence agreed with testimony of Fields and his wife and is sufficient to support the trial court’s finding on the amount of compensation payment to Fields. In summary, Fields’ points of error one, two, three and four are overruled.

By cross-point the insurance company contends that Fields is not entitled to interest on the judgment in this action beyond May 25, 1977, because on May 18, 1977, it tendered into the registry of the court the full amount of the judgment with interest thereon at the rate of nine percent per annum from March 9,1977, (the date of judgment) to May 25, 1977. In support of its position, the insurance company relies on the holding of St. Paul Mercury Insurance Company v. Billiot, 342 S.W.2d 161, 164 (Tex.Civ.App.—Beaumont 1960, writ ref’d), that payment into the registry of the court of all sums due under a judgment terminates interest as of the date on which the. deposit was made. We do not consider Billiot to be controlling of the factual situation in the present case. Unlike the tender in Billiot, Texas Employers’ tender, by its terms, is conditioned on settlement of the litigation, avoidance of further contentions, and is not an admission or waiver of any right to complain of the judgment. Such a conditional tender is not a valid payment of the judgment in full, and it should not stop the running of interest on a judgment being appealed. See Baucum v. Great American Insurance Company of New York, 370 S.W.2d 863, 866 (Tex.1963). The insurance company’s cross-point is overruled.

Accordingly, the judgment is affirmed.


author: ROBINSON, Justice.

text:
    NATIONAL PUMP COMPANY, INC., Appellant, v. C & L MACHINERY COMPANY, INC., Appellee.
    No. 8872.
    Court of Civil Appeals of Texas, Amarillo.
    April 10, 1978.

      Crenshaw, Dupree & Milam (Cecil Kuhne), Lubbock, for appellant.
    Kemp, Smith, White, Duncan & Hammond (Royal Furgeson), El Paso, for appel-lee.
   ROBINSON, Justice.

In this venue case, National Pump sued C & L Machinery in Lubbock County, Texas, on a sworn account for the unpaid balance of the sale price of irrigation pumps. C & L Machinery, a corporation, filed a plea of privilege to be sued in the county of its residence, Hudspeth County, Texas. National Pump filed a controverting affidavit, contending that venue was proper in Lubbock County under subdivision 23 of article 1995, Tex.Rev.Civ.Stat.Ann., which allows a suit against a corporation to be maintained in the county in which the cause of action or a part thereof arose. The trial court sustained defendant’s plea of privilege, expressly finding that plaintiff failed to prove that its cause of action or a part thereof arose in Lubbock County. Plaintiff appeals. Affirmed.

Subdivision 23 of article 1995 provides an exception to the general rule that Texas defendants have the right to be sued in the county of their residence. In part, subdivision 23 provides that venue against a private corporation is proper “in the county in which the cause of action or part thereof arose.” Three elements must be proved to establish this venue exception:

(1) that defendant is a private corporation,
(2) that plaintiff has a cause of action against such defendant, and
(3) that the cause of action or a part thereof arose in the county where venue is sought.

Dina Pak Corporation v. May Aluminum, Inc., 417 S.W.2d 419 (Tex.Civ.App. — Corpus Christi 1967, no writ). The burden was on plaintiff National Pump to prove all three elements. Liberty Mutual Insurance Company v. Heard & Jones Drug Stores, Inc., 446 S.W.2d 911 (Tex.Civ.App. — Amarillo 1969, no writ). Defendant C & L Machinery conceded that the first two venue facts were established, but contends that the trial court properly sustained the plea of privilege because no part of the cause of action arose in Lubbock County.

To maintain venue under subdivision 23 of article 1995, either some part of the transaction creating the primary right or duty of one toward another, or some part of the transaction relating to the breach of that right, must have occurred in the county where the suit is brought. Stone Fort National Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674 (1936).

Plaintiff contends that it established as a matter of law and as a matter of fact that its cause of action, or a part thereof, arose in Lubbock County because plaintiff’s home office was in Lubbock; the pumps sold by plaintiff to defendant were manufactured in Lubbock; the order was received by plaintiff in Lubbock; the pumps were transported by plaintiff from its place of business in Lubbock by truck to defendant, and checks in partial payment of the sale price were received by plaintiff at its office in Lubbock.

The trial court made the following findings of fact on the specific contentions raised by plaintiff: (1) plaintiff’s offer to sell pumps was accepted by defendant in Hudspeth County, Texas; (2) plaintiff manufactured the pumps in Lubbock and caused them to be delivered to defendant in Hud-speth County; (3) the place of payment was not specified, but each of five payments was made in Hudspeth County.

Findings of fact entered by the trial court are of equal dignity with jury findings in response to special issues, and will be sustained if there is some evidence of probative value to support them and they are not against the great weight and preponderance of the evidence. Loeb, Rhoades & Co. v. Stanley, 541 S.W.2d 869 (Tex.Civ.App.—Corpus Christi 1976, no writ). Considering the evidence in the light most favorable to the judgment, we conclude that each of the findings is supported by evidence. Furthermore, after considering all of the evidence we conclude that the findings are not so against the great weight and preponderance of the evidence as to be unjust.

Plaintiff’s contention that a part of its cause of action arose in Lubbock County because its home office was in Lubbock and the pumps were manufactured there is also overruled. This same argument was discussed and rejected in Payne & Keller, Inc. v. Southwest Tank & Treater Company, 491 S.W.2d 464, 467 (Tex.Civ.App.—Tyler 1973, no writ). The court expressly held that the sole fact that the goods were manufactured in Rusk County, the home office of the corporate plaintiff, did not give rise to the alleged cause of action or a part thereof.

Plaintiff-appellant’s points of error, claiming that facts contrary to the trial court’s findings were established by the evidence as a matter of law or as a matter of fact, are overruled. The order of the trial court sustaining defendant’s plea of privilege is affirmed.


author: CIRE, Justice.

text:
    Alberta MORRIS, Appellant, v. KAYLOR ENGINEERING COMPANY et al., Appellees.
    No. 1751.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 12, 1978.
    Rehearing Denied May 3, 1978.
    W. Jiles Roberts, Houston, for appellant.
    Don Karotkin, Funderburk & Funder-burk, John T. Golden, Vinson & Elkins, Houston, for appellees.
   CIRE, Justice.

Alberta Morris appeals from a take-nothing judgment rendered in this personal injury case. The successful parties in the trial court are Roy D. Kaylor, Kaylor Engineering Company and Swimquip, Inc., the appellees.

In September 1970 appellant sustained personal injuries when she stepped on a swimming pool skimmer cover. The swimming pool was on the premises of the apartment complex where she was living as a tenant. Due to pressure applied by appellant’s leg, the cover slipped out of its frame and gave way, and her foot and leg fell through the hole causing her injuries.

Appellant subsequently filed suit and alleged, among other things, in her third amended original petition both strict liability and negligence theories against Swim-quip, the manufacturer of the cover, and Kaylor, the owner of the apartment complex where the accident occurred. Appellant pled an implied warranty of habitability against Kaylor, alleging that since he was the owner of the complex, he had a duty to maintain the premises in a condition suitable for human habitation and his failure to do so rendered him liable under the doctrine of strict liability.

Appellee Kaylor filed a special exception to appellant’s pleadings claiming that the doctrine of strict liability in tort was legally inapplicable to Kaylor as owner of. the apartment complex. The trial court granted this exception.

The case was submitted to the jury in March Í977. The jury found that appellant had suffered injuries as a result of this accident but found that the cover was not defective when it was sold by appellee Swimquip and additionally found no negligence on the part of the appellees. Subsequently, the trial court entered a take-nothing judgment on the basis of the jury’s answers to the special issues.

Appellant Morris asserts a single point of error before this court claiming that “the trial court erred in ruling that a warranty of habitability (strict liability) does not apply between landlord and tenant in Texas.” The warranty of habitability does not apply to the landlord-tenant relationship in a personal injury case, and, as a consequence, appellant’s point of error is overruled. We recognize that the habitability warranty has been extended to the sale of a new house. See Humber v. Morton, 426 S.W.2d 554 (Tex.Sup.1968). We also note that the Supreme Court has granted a writ in a case which may shed light on this question. Kamarath v. Bennett, 549 S.W.2d 784 (Tex.Civ.App.—Waco 1977), writ granted (Tex.) 20 Tex.Sup.Ct.J. 42 (Oct. 1, 1977). However, the most recent directive from the Supreme Court clearly indicated that, in a landlord-tenant personal injury action dealing with land appurtenant to the part leased to the lessee and under Parker v. Highland Park, Inc., 565 S.W. 2d 512 (Tex.Sup.1978) gave express recognition to the restatement:

§ 360. Parts of Land Retained in Lessor’s Control Which Lessee is Entitled to Use
A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.

Restatement (Second) of Torts § 360 (1965). See Brown v. Frontier Theaters, Inc., 369 S.W.2d 299 (Tex.Sup.1963); McCreless Properties, Ltd. v. F. W. Woolworth Co., 533 S.W.2d 863 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.); George v. City of Fort Worth, 434 S.W.2d 903 (Tex.Civ.App.—Fort Worth 1968, writ ref’d n. r. e.).

Appellant has not asserted error against the take-nothing judgment rendered in favor of appellee Swimquip, the manufacturer of the cover. Accordingly, the judgment as to Swimquip is affirmed.

Appellant’s point of error is hereby overruled. Because of our holding, it is unnecessary to rule on appellee Kaylor’s cross-points.

Affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    C. M. STALEY, Appellant, v. ZIMMITE CORPORATION, Appellee.
    No. 1725.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 12, 1978.

      Charles L. Black Aycock, Houston, for appellant.
    Michael K. Swan, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from the denial of attorney’s fees in a successful suit to recover expenses, unpaid sales commissions, and vacation pay.

C. M. Staley (Staley or appellant) was employed as a District Sales Manager for the Zimmite Corporation (Zimmite or appellee) until he was fired on April 27, 1974. He sued Zimmite, alleging that he was entitled to reimbursement pursuant to Zimmite’s Field Sales Compensation Plan for accrued vacation pay, unpaid sales commissions earned selling specialty chemicals for Zimmite, and expenses. The trial court awarded Staley damages in the amount of $1,970.30 on April 11, 1977, in accordance with a jury verdict in his favor. The court found that reasonable attorney’s fees for the prosecution of Staley’s claim through trial was $2,600.00, and reasonable attorney’s fees for legal services on appeal would be $1,200.00. The court nevertheless denied Staley’s claim for attorney’s fees, from which denial he brings this appeal.

Attorney’s fees incurred by a party in litigation are not recoverable in Texas unless authorized by a contract between the parties or by statute. Turner v. Turner, 385 S.W.2d 230 (Tex.Sup.1964). Staley does not contend that his contract with Zimmite mentioned attorney’s fees. He asserts, in his two points of error, that he is entitled to recover attorney’s fees pursuant to article 2226 of the Texas Revised Civil Statutes. Article 2226 states, in part:

Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured or suits founded upon a sworn account or accounts, or suits founded on oral or written contracts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, payment for the just amount owing has not been tendered, the claimant may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees.

Tex.Rev.Civ.Stat.Ann. art. 2226 (Supp. 1978). The parties stipulated that Staley presented his claim to Zimmite and that Zimmite failed to pay the same within thirty days. The parties further stipulated that the attorney’s fees requested by Staley and found by the court were reasonable and necessary.

Zimmite asserts that Staley may not recover attorney’s fees under article 2226 because his suit is based upon a breach of a “special contract.” We reject that argument. The special contract defense bars recovery of attorney’s fees under article 2226 only in those cases where the underlying claim is founded upon a special contract and the action is brought as a suit upon a sworn account or accounts. Langdeau v. Bouknight, 162 Tex. 42, 344 S.W.2d 435 (1961); Flagg Realtors, Inc. v. Harvel, 509 S.W.2d 885 (Tex.Civ.App.—Amarillo 1974, writ ref d n. r. e.); Jackson v. Paulsel Lumber Company, 461 S.W.2d 161 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.); Danaho Refining Company v. Dietz, 398 S.W.2d 307 (Tex.Civ.App.—Corpus 1965, writ ref’d n. r. e.).

That defense is inapplicable in this case. A contract that provides for payment of sales commissions and accrued vacation pay is not so extraordinary that it may be considered a special contract. In any event, Staley’s suit was not one upon a sworn account or accounts; his claim for unpaid sales commissions and accrued vacation pay was a claim for services rendered which complied with the requirements of article 2226. Tenneco Oil Company v. Padre Drilling Company, 453 S.W.2d 814 (Tex.Sup. 1970); Huff v. Fidelity Union Life Insurance Company, 158 Tex. 433, 312 S.W.2d 493 (1958); Brown v. Cox, 459 S.W.2d 471 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n. r. e.). We hold, therefore, that Staley is entitled to recover the attorney’s fees that he incurred during trial and on appeal. Allison v. Douglas, 531 S.W.2d 445 (Tex.Civ.App.—Waco 1975, no writ); cf. International Security Life Insurance Co. v. Spray, 468 S.W.2d 347 (Tex.Sup.1971). Contra, Olivares v. Porter Poultry & Egg Company, 523 S.W.2d 726 (Tex.Civ.App.—San Antonio 1975, no writ) (dicta). The trial court erred in failing to award those attorney’s fees. Davidson v. Súber, 553 S.W.2d 430 (Tex.Civ.App.—Austin 1977, no writ).

The general rule in Texas is that an appellate court may not initiate an award of attorney’s fees, since such an award would be a usurpation of the trial court’s fact-finding function. International Security Life Insurance Go. v. Spray, 468 S.W.2d 347 (Tex.Sup.1971); Smith v. Texas Co., 53 S.W.2d 774 (Tex.Com.App.1932, holding approved). In this case, however, the trial court has already made the factual determination of the amount of money that would constitute reasonable attorney’s fees; the question of whether Staley should be awarded those fees is purely one of law. It is the duty of this court to render the judgment that the trial court should have rendered. Hardware M. Cas. Co. v. Buck’s Tri-State Irr. E. Co., Inc., 500 S.W.2d 897 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.); Tex.R.Civ.P. 434. We therefore affirm that part of the judgment awarding Staley damages in the amount of $1,970.03, and we reverse and render in part and award Staley $3,800.00 for attorney’s fees.

Affirmed in part and reversed and rendered in part.

      . Article 2226 was amended after the rendition of judgment in this case to provide for recovery of attorney’s fees in “suits founded on oral or written contracts . . Tex.Rev.Civ. Stat.Ann. art. 2226 (Supp.1978). That amendment abrogates the special contract defense to recovery of attorney’s fees after August 29, 1977, the effective date of the amendment.