author: McKAY, Justice.

text:
    Louis J. GRUNDMEYER et al., Appellants, v. Nick McFADIN and Paul E. Casseb, Appellees.
    No. 904.
    Court of Civil Appeals of Texas, Tyler.
    May 20, 1976.
    Rehearing Denied June 17, 1976.

      Pat Maloney, San Antonio, for appellants.
    F. W. Baker, Matthew, Nowlin, MacFar-lane & Barrett, San Antonio, for appellees.
   McKAY, Justice.

Appellants brought suit against appellees seeking to cancel an earnest money contract for the sale of 129.636 acres of land located near the University of Texas at San Antonio. Appellees by cross-action sought specific performance of the contract. After a trial before a jury, the trial court rendered judgment on the verdict for appellants. On its own motion, however, while appellees’ amended motion for new trial was pending, the court set aside that judgment and his previous order overruling appellees’ motion for judgment non obstante veredicto and rendered judgment non obstante veredicto that appellants take nothing and that ap-pellees have specific performance of the contract. The court did not set aside issue 10 on value. Appellants bring several points on appeal from that judgment.

The tract of land had been owned by Joe Gerfers and his wife, Annie Gerfers, and they operated a dairy there for many years. The Gerfers had three daughters, Adela Gerfers Miller, Meta Gerfers Grundmeyer, wife of Louis J. Grundmeyer, and Nelda Gerfers Breit, who died in 1943 and left one child, Constance Anne Breit Lopez. Joe Gerfers died intestate in 1941. Annie Ger-fers died during the pendency of this suit but before trial.

The sellers under the earnest money contract of June 3, 1970, in controversy here, were Adela Gerfers Miller, Meta Gerfers Grundmeyer and husband, Louis J. Grund-meyer, Robert J. Breit, surviving husband of Nelda Gerfers Breit, and Constance Anne Breit Lopez and husband, Alvaro Lopez, appellants. The buyers were Nick McFadin and Paul Casseb, appellees.

All of the sellers except Louis J. Grund-meyer and Robert J. Breit signed a prior earnest money contract in October, 1969, with one Francis by which the sellers agreed to sell the same land for $1,700.00 per acre. The contract with Francis was signed “Mrs. Annie Gerfers, by and through her Atty. in Fact, Meta Gerfers Grundmeyer”, and further signed “Estate of Joe Ger-fers, Dec. By: Meta Gerfers Grundmeyer, Individually; By: Adela Gerfers Miller, a widow; By: Constance Anne Breit Lopez.” This contract was in existence at the time the McFadin and Casseb contract was executed.

In 1966 Annie Gerfers was placed in a nursing home in Boerne because of her physical and mental condition. Gordon Hollon, an attorney at Boerne, was employed to prepare a Power of Attorney from Annie Gerfers to Meta Gerfers Grund-meyer so that Annie Gerfers’ Social Security checks could be cashed. The taxes on the land continued to increase and the 1969 contract with Francis to sell the land for $1,700 per acre was executed after conferences between the Grundmeyers and Hollon and the payment of a $1,000.00 fee to Hol-lon. The sale to Francis could not be consummated, and the Grundmeyers became dissatisfied. Following a recommendation, they employed Robert F. Ritter to help complete the Francis matter.

L. J. Grundmeyer testified that Ritter advised him not to attend a meeting for the purpose of finalizing the Francis contract, and that he should get rid of Hollon; that the site for the University of Texas at San Antonio had been announced (“right across the road from you”) and that they should cancel the Francis contract and for him to call the other members of the family and tell them it should be cancelled; that a few minutes later and before he called the others, Ritter called him again and said, “Tell them that I’ve got some- friends of mine, Mr. Casseb and Mr. McFadin, will give them $2,500.00 an acre for that land. And it won’t cost them a penny. And we’ll get rid of that contract and you’ll get your money. That way you’ll get your money pretty quick.”; that Ritter and Casseb came to his house and looked over the property; that Casseb said he would help Ritter cancel the Francis contract; that “they rushed me into signing it” and that they never told him not to sign it because the Francis contract was still in existence.

The Grundmeyers and Adela Gerfers Miller signed the June 3, 1970, contract in Ritter’s office and Breit and the Lopezes signed and returned the contract from California. Casseb signed the contract June 3, 1970, and McFadin on June 15, 1970. A check for $30,000.00 earnest money was delivered to Ritter on June 3, 1970, and Ritter acknowledged receipt for it as “Trustee and Attorney for Buyers.”

All parties to the June 3, 1970, contract were aware that Annie Gerfers owned a one-half community interest in the land. She was living at a nursing home in June, 1970, and had no guardian, but the McFad-in-Casseb contract, drawn by Casseb, identified Meta Gerfers Grundmeyer as “Guardian of the Estate of Annie Gerfers.” The contract in its first paragraph describes Annie Gerfers as “N.C.M.”

The jury in its verdict found:

1. That Ritter was acting as the agent of Casseb and McFadin to secure the sale of the Gerfers’ property to Casseb and McFad-in.

2. That Ritter represented to the Grund-meyers and Adela Gerfers Miller prior to the signing of the June 3, 1970, contract that they would get their money from the sale of the property within 60 to 90 days.

3. That such representation was false.

4. That Ritter knew such representation was false.

5. That such representation was made to induce the Grundmeyers and Mrs. Miller to sign the contract.

6. That the Grundmeyers and Mrs. Miller relied upon the truth of such representation.

7. That such representation was a material inducement but for which the Grund-meyers and Mrs. Miller would not have signed the contract.

8. That Casseb on July 28, 1970, instructed Ritter to cancel the June 3, 1970, contract.

9. That the fact that Ritter was acting as agent for Casseb and McFadin to secure the sale of the property adversely affected either the judgment or the loyalty of Ritter in his representation of the appellants to their detriment.

10. The market value of the property on June 3, 1970, was $2,500.00 per acre.

In their first three points appellants contend that the trial court erred in vacating the judgment first rendered and then rendering a judgment for appellees non ob-stante veredicto.

In order to sustain the action of the trial court in granting a motion for judgment non obstante veredicto there must be a determination that there is no evidence having probative force upon which the jury could have made the findings relied on. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962). In passing upon these points the evidence must be considered in a light most favorable to the jury’s findings, considering only the evidence and inferences which support the verdict and rejecting the evidence and inferences which are contrary thereto. Burt v. Lochausen, supra; Leyva v. Pacheco, supra; Nathan Alterman Electric Co. v. Mason, 448 S.W.2d 524 (Tex.Civ.App.—San Antonio 1969, no writ). A judgment notwithstanding a jury verdict can only be upheld on appeal when a directed verdict would have been proper. Rule 301, T.R.C.P.; Braselton Construction Co. v. Anslinger, Inc., 503 S.W.2d 368 (Tex.Civ.App.—Corpus Christi 1973, no writ).

We are of the opinion that the evidence, viewed in the light most favorable to the jury verdict, raised the issues submitted to the jury and that the trial court should not have overturned the verdict on the ground that there was no evidence to support it.

Casseb testified that when Ritter moved to the Majestic Building he had an office in the same suite with Casseb and McFadin for several months, then later Ritter moved to an adjoining suite; that Casseb and McFadin gave Ritter and his partner Rivera, “a good deal of business” over the years; that when Casseb referred collection matters to Ritter and Rivera they used a joint letterhead with Casseb’s name on it with their own, which arrangement lasted several years, and these joint letterheads “possibly” were being used in June and July, 1970; that Ritter and Rivera moved out of the Majestic Building in 1972, and after that time Casseb employed Rivera on several major cases to help him, and in two cases he hired Ritter and they split the fees, but on collections there were no fees split; that Ritter signed the earnest money contract as “Robert F. Ritter, Trustee and Attorney for Buyers,” but his signature and typed name were erased or in some way deleted from the copy of the contract which was filed and recorded by Casseb’s secretary at his direction; that Casseb had to sign a form styled “Duplicate Original” at the County Clerk’s office so the contract with the deletions could be filed for record; and that Casseb’s affidavit stated “I re-executed the copy which has been placed of record. It is an incomplete copy of the original. By executing this copy, I justify its being recorded as a duplicate original.”

Mrs. Grundmeyer testified that Ritter told them that they would get the money in 60 to 90 days; that Ritter would not permit them to take a copy of the contract home to study it before they signed it and they did not get a copy after they signed it. She further testified that they received a copy of the contract about a month after signing it and they then learned that there was no provision requiring payment within 60 to 90 days as they expected, nor was there a provision that they should receive no more than 29 per cent cash.

Mrs. Miller testified Ritter told them that if they signed the contract they would get the money within 60 to 90 days; that Ritter told them on June 3,1970, when they signed the contract that Casseb and McFadin were going to pay him $18,000. She further testified that on July 28, 1970, when she and the Grundmeyers were in Ritter’s office, Grundmeyer asked that some parts of the contract be changed and Ritter said, “Well, just cancel it. Mr. Casseb and Mr. McFadin said cancel it.” She also testified that she could not swear that Ritter was representing Casseb and McFadin but she thought he was; she said, “he was for them, and he was supposed to be our lawyer.”

Appellees contend that there is no evidence that Ritter was acting as agent of Casseb and McFadin to secure the sale of the Gerfers’ property to Casseb and McFad-in. We disagree.

The question of agency is one of fact, and the question of agency and the extent of the agent’s authority may be shown by circumstantial evidence. Foundation Reserve Ins. Co. v. Wesson, 447 S.W.2d 436, 438 (Tex.Civ.App.—Dallas 1969, writ ref’d); National Guaranty Fire Ins. Co. of Newark, N.J. v. King, 24 S.W.2d 501, 504 (Tex.Civ.App.—Waco 1929, writ ref’d). Ap-pellees argue that there was no finding that Ritter was acting within the scope of his actual or apparent authority when he represented to appellants that they would receive their money within 60 to 90 days. Since appellees made no objection to the court’s charge that there was no issue on scope of authority, and did not submit a requested issue on the question, they cannot now complain. Rule 279, T.R.C.P. Moreover, there was no objection to the agency issue nor to the definition of an agent as “one who acts in behalf of another under the other’s authority and for his benefit.”

“ ‘No evidence’ points must, and may only, be sustained when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.” Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.R. 361 (1960).

We are of the opinion that there is more than a scintilla of evidence raising the issue whether Ritter was the agent for the buyers and whether he committed a fraudulent act. Therefore, without passing on the factual sufficiency, we hold there is some evidence of agency and fraud, and the trial court should not have granted a motion for judgment notwithstanding the verdict. In our view, however, the trial court’s error in rendering judgment non obstante veredicto does not require reversal of this ease under Rule 434, T.R.C.P. We are of the opinion that appellees were entitled to judgment on the verdict because appellants failed to secure a finding of damage.

Appellees maintain that proof of pecuniary loss or damage is essential to appellants’ suit to rescind the earnest money contract. We agree with this proposition.

The rule followed by the courts of Texas is that in suits for cancellation or rescission of a contract, some damages must be proved, and actionable fraud is fraud from which injury results. Russell v. Industrial Transp. Co., 113 Tex. 441, 258 S.W. 462, 51 A.L.R. 1 (1924); Bryant v. Vaughn, 33 S.W.2d 729 (Tex.1930); Lane v. Cunningham, 58 S.W.2d 35 (Tex.Comm.App. 1933, holding approved); Texas Industrial Trust, Inc. v. Lusk, 312 S.W.2d 324 (Tex.Civ.App.—San Antonio 1958, writ ref’d); Citizens Standard Life Ins. Co. v. Muncy, 518 S.W.2d 391 (Tex.Civ.App.—Amarillo 1974, no writ). Loss or damage as a result of fraud is usually pecuniary, but the damage should not be restricted to monetary loss. As pointed out in Nance v. McClellan, 126 Tex. 580, 89 S.W.2d 774, 776, 777 (1936, opinion adopted), and Russell v. Industrial Transp. Co., supra, there are some situations where there may be rescission without showing monetary loss.

In the case at bar the jury answered issue 10 (which the trial court did not set aside) that the reasonable cash market value of the Gerfers’ property on June 3, 1970, the date of the contract, was $2,500 per acre. The earnest money contract provided for payment of $2,500 per acre. The damages plead were for monetary loss. The verdict reveals there was no loss or damage, and appellants make no attack upon the jury’s answer to issue 10. The appellants failed to get a finding of any loss or damage, the proof of which was an essential element of their case, and without which they could not recover. The trial court could not render judgment for appellants on the verdict because of the rule which requires the proof of damage before there can be rescission of a contract on the ground of fraud.

In Bryant v. Vaughn, supra, is found this language at p. 730:

“The rule in this state is settled that the equitable remedy of cancellation is not available because of fraudulent representation made to induce the execution of a contract unless it be shown in connection therewith that some injury or damage has resulted to the party claiming to be aggrieved. Russell v. Industrial Transportation Co., 113 Tex. 441, 251 S.W. 1034, 258 S.W. 462, 51 A.L.R. 1, and authorities there cited.
“The rule announced in the above case bars defendants in error’s right to rescission of the trade in view of the jury’s finding that the value of the property received by them was equal to that with which they parted possession. * * *”

By their points 4, 5 and 6 appellants maintain that the equitable remedy of specific performance is unavailable to appellees because they do not have “clean hands”. Appellants assert that appellees were guilty of tortious inferences with the pre-existing earnest money contract by failing to perform their duty to inform appellants they had no right to contract with appellees in the face of the Francis contract. We overrule these points. It is undisputed that Casseb had knowledge of the outstanding Francis earnest money contract on June 3, 1970, and that McFadin learned of it later. The record, however, reveals that at the time appellants employed Ritter they were attempting to consummate the Francis contract, and it was only after Ritter had advised them that the Francis contract was void that they signed the Casseb contract.

“A cause of action for wrongful interference with a contract is shown where there have been intentional and willful acts, the acts were calculated to cause damage to the contracting parties in their lawful business and were done with the unlawful purpose of causing damage and loss, without right of justifiable cause on the part of the actor, and where actual damage and loss resulted.” (Emphasis added.) Tippett v. Hart, 497 S.W.2d 606 (Tex.Civ.App.—Amarillo 1973, writ ref’d n.r.e., Tex., 501 S.W.2d 874); 33 Tex.Jur.2d, Interference, Sec. 2, p. 96.

It was held in Raymond v. Yarrington, 96 Tex. 443, 73 S.W. 800 (1903), and Brown Hardware Co. v. Indiana Stoveworks, 96 Tex. 453, 73 S.W. 800 (1903), that to induce a party to a contract to break it, to the damage of the other party thereto, is an actionable wrong.

We are of the opinion there is no interference shown in the instant case. Ritter, as attorney for appellants, advised them that the Francis contract was invalid and unenforceable, as it was determined to be by the courts in Walzem Development Co., Inc. v. Gerfers, 487 S.W.2d 219 (Tex.Civ.App.—San Antonio 1972, writ ref’d n.r.e.). Injury or damage is an essential element of interference, and appellants have shown none. If there was an injured party in the Francis contract it was Walzem, who succeeded to any right of Francis, and it was Walzem who brought suit against appellants for specific performance of that- contract. Assuming, arguendo, that appellees did induce appellants to breach the Francis contract, no damage or injury has been shown to appellants; and, therefore, there was no interference. There is a question whether the Francis contract ever became a contract because one of the essential parties to it, Robert Breit, refused to sign it. Furthermore, as appellants claimed, there was no one competent to contract for the estate of Joe Gerfers, deceased, or for Annie Gerfers, an incompetent, both being necessary parties. Appellants were not parties to the Francis contract. Walzem Dev. Co. v. Ger-fers, supra, p. 220.

Appellants took the position in defending the Walzem suit for specific performance of the Francis contract that (1) the instrument was as a matter of law ambiguous and uncertain and was unenforceable; (2) it was not possible for Walzem to comply with its contractual obligation to give a deed of trust to the entire premises; (3) there is no one competent to contract for the estate of Joe Gerfers, deceased, a necessary party to the contract, or for Annie Gerfers, an incompetent; (4) the contract does not have the certainty required for specific performance; and (5) the doctrine of partial specific performance was not applicable to the case. Appellants ought not to have standing here to take an inconsistent position that there was tortious interference to their damage when they denounced the contract in the previous suit.

Appellants insist that Clements v. Withers, 437 S.W.2d 818 (Tex.1969), controls the case at bar. We believe there is a distinction. None of the appellants were parties, individually, to the Francis contract, and as held in Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960), the clean hands rule is not absolute. It is said in Omohun-dro at p. 410:

“The party to a suit, complaining that his opponent is in court with ‘unclean hands’ because of the latter’s conduct in the transaction out of which litigation arose, or with which it is connected, must show that he himseli has been injured by such conduct, to justify the application of the principle to the case. The wrong must have been done to the defendant himself and not to some third party.” (Emphasis added.)

It is shown by the record that rather than being injured by the alleged interference with and the later elimination of the Francis contract, appellants benefitted from such alleged interference by obtaining more favorable terms and more money from the Casseb-McFadin contract. The alleged interference of appellees would have to be shown to have been the proximate cause of the breach of the contract had appellants suffered any damage. Moore v. Sussdrof, 421 S.W.2d 460 (Tex.Civ.App.—Tyler 1967, writ ref’d n.r.e.).

Appellant’s point 7 maintains that the trial court erred in not denying specific performance to appellees because, as a matter of law, the earnest money contract shows on its face that it is an attempt by appellees to bind the judicial process, and it is, therefore, void. Meta Gerfers Grund-meyer signed the Casseb contract as “Guardian of the Estate of Annie Gerfers, a widow, N.C.M.”, and Meta Gerfers Grund-meyer was not the Guardian of the Estate of Annie Gerfers.

We are cited the case of Specht v. Collins, 81 Tex. 213, 16 S.W. 934 (1891), as laying down the rule that a party may not contract to do something which must be approved by a court in that one cannot pledge the course of administration and the orders of the court. In Specht the surviving husband contracted to sell lands which were owned by his deceased wife “as soon as administration is had upon said estate”. The court held that the husband “had no power, in the absence of facts that would give him sole control of the estate, to make a contract that would bind the estate, and bind the court, under whose orders the estate should be administered,” and if it was intended to bind him “it was contrary to public policy.” Other cases are cited which follow and cite Specht.

We are of the opinion that the holding in Specht is not applicable here. There is authority in Texas that where a contract is void or illegal in part, and a party can prove a complete cause of action without the necessity of and apart from the void or illegal portion of the contract, he is entitled to relief from the courts under the valid portion. Hazzard v. Morrison, 104 Tex. 589, 143 S.W. 142 (1912), holds that where a defendant, for herself and as agent for an executor, contracted to convey two adjoining lots, only one of which was owned by her, and the contract for the sale by the executor was unenforceable and void for want of power to convey, the vendee could have specific performance of the contract so far as it provided for the transfer of defendant’s lot.

If there was an attempt by appellees to bind the judicial process by preparing a contract which attempted to bind the interest of Annie Gerfers by representing that Meta Gerfers Grundmeyer was the guardian of her estate, when in fact she was not, the illegal transaction will not be a defense to appellees’ action for specific performance if appellees do not require any aid from the illegal act to maintain their action. Morrison v. City of Fort Worth, 138 Tex. 10, 155 S.W.2d 908 (1941); Stone v. Robinson, 234 S.W. 1094 (Tex.Comm.App.1921, jdgmt. adopted); Norman v. B. V. Christie & Co., 363 S.W.2d 175 (Tex.Civ.App.—Houston 1962, writ ref’d n.r.e.); Fraley v. Zales Jewelry Co., 289 S.W .2d 416, 419 (Tex.Civ.App.—Amarillo 1956, no writ).

The granting clause in the Casseb earnest money contract provides that each of the sellers individually agree to sell to McFadin and Casseb the 130 acre tract of land. There was no language that any of them was selling his or her undivided interest. Since at the time of trial Annie Gerfers was deceased and appellants, therefore, owned the 130 acres, the guardian question no longer existed and the contract bound appellants individually to sell their respective interests. Appellees may secure the specific performance relief without regard to the allegedly illegal portion of the contract. Point 7 is overruled.

By points 8 and 9 appellants contend that, as a matter of law, the contract shows on its face that Ritter was the attorney for the sellers and attorney for the buyers, and that such dual representation, being unknown and unauthorized by appellants, rendered the contract invalid and void. We overrule these points.

We are cognizant of the rule that an agent may not act in behalf of another whose interest is adverse to that of his principal, or act in a dual capacity for two principals unless both principals, with full knowledge of the facts, consent to such representation. Armstrong v. O’Brien, 83 Tex. 635, 19 S.W. 268, 274 (1892); William Cameron & Co. v. Blackwell, 53 Tex.Civ.App. 414, 115 S.W. 856, 858 (1909, no writ); Liverpool & London & Globe Ins. Co. v. McCollum, 149 S.W. 775, 777 (Tex.Civ.App.—Amarillo 1912, writ ref’d); Jines v. Astle, 170 S.W. 1081 (Tex.Civ.App.—Amarillo 1914, no writ); Keitt v. Gresham, 174 S.W. 884 (Tex.Civ.App.—Ft. Worth 1915, no writ); 2 Tex.Jur.2d, Agency, Sec. 111, p. 558 (1959).

The rule was expressed by the court in Cunningham v. Price, 253 S.W. 337, 338 (Tex.Civ.App.—San Antonio 1923, writ dism’d), as follows:

“It is, of course, thoroughly settled as a general rule that an agent of one may not act for another whose interest is adverse to that of his principal, if his dual agency requires or tempts him to do incompatible things. But it is almost as well settled that this rule does not apply where the principals are aware of the facts of the dual relation assumed by the agent, in which event they are bound by his acts in their behalf.”

While it is unquestioned that an agent owes a high degree of loyalty to his principal, including a duty of full disclosure of material facts, this would be especially true in case of a dual agency where the agent is representing both parties. Guisinger v. Hughes, 363 S.W.2d 861 (Tex.Civ.App.—Dallas 1962, writ ref’d n.r.e.). While Ritter signed the contract as attorney for the sellers and as trustee and attorney for the buyers, there is no evidence he ever actually represented appellees as an attorney at any time in connection with the sale or the contract. A letter agreement, executed the same day as the contract and signed by all appellants and appellees, provided that as a part of the consideration for the sale of the property appellees would reimburse appellants for attorney’s fees and costs necessary to deliver marketable title to the property. Ritter was appellants’ attorney, and he and appellees agreed a reasonable fee for Ritter’s work would be $18,-000. Ritter did serve as trustee and received the $30,000 earnest money, but his services as an attorney were performed, or were to be performed, for appellants and the record does not disclose any conflict of interest. It was advantageous to appellants to have the Francis contract cancelled so that the sale to appellees could be consummated. If it could be said that Ritter was an attorney for or an agent for appellees while serving as attorney for appellants, the record shows that appellants had knowledge of it and consented to it. Points 8 and 9 are overruled.

Appellants’ tenth point alleges that the trial court erred in not denying specific performance to appellees because appellees were guilty of barratry as a matter of law under the statute then in effect. Tex.Penal Code Ann., Article 430 (repealed, Acts 1973, 63rd Leg., ch. 399, section 3). Appellants’ points eleven through fourteen allege that the trial court erred in refusing to submit appellants’ requested special issues A, B, C and D concerning the commission of barra-try by appellees. We do not agree with appellants’ contentions.

It appears that by letter of June 3, 1970, appellees agreed to reimburse appellants their reasonable attorney’s fees charged to them by Ritter for services rendered or to be rendered in connection with clearing the title to the property. The letter bears the signatures of appellants agreeing to and authorizing this arrangement. Subsequently, appellees and Ritter agreed that eighteen thousand dollars ($18,000.00) would be a reasonable fee for Ritter’s services. Appellants contend that by these agreements appellees were encouraging litigation to cancel the Francis contract in violation of Article 430.

In reviewing points eleven through fourteen the rule is that the trial court has a duty to submit all controverted ultimate fact issues raised by the pleadings and the evidence. Rules 277 and 279, T.R.C.P. In our opinion, however, there is no evidence of barratry in the record which would require submission of appellants’ requested issues.

Article 430 is lengthy and embraces several groups of facts, each group independently constituting the offense of barratry. Appellants have failed to specify which group of facts was violated by appellees, but consideration of the entire article reveals an absence of evidence as to at least one essential element of each group of facts constituting barratry.

The letter agreement to reimburse appellants states that reimbursement of Ritter’s fees constituted a part of the consideration for the sale of the property. The purpose of the agreement was to reimburse appellants for expenses incurred in clearing title to the property so that they could deliver marketable title as required by the contract. There is no evidence that appellees participated in the bringing of a suit with the intent to distress or harass anyone. In fact, the record shows that the assignees of Francis instituted the previous suit against appellants seeking specific performance. Appellants were the defendants in the prior suit in which the Francis contract was can-celled. Moreover, Ritter had been discharged by appellants prior to the suit brought by the assignees of Francis and did not participate therein.

The record also shows that appellees had an interest in the subject matter of the prior suit by virtue of the earnest money contract dated June 3, 1970. Furthermore, appellees were not causing a false suit to be brought because the position of appellants in the prior suit was upheld and the Francis contract was cancelled by a decree of the court. Lastly, there is no evidence that appellees were soliciting employment. On the contrary, they were offering to reimburse the fees charged by Ritter who at the time had already been retained by appellants.

Appellants’ points 11 through 14 are overruled. Our discussion of points 11 through 14 is also dispositive of appellants’ point 10 which is overruled.

Judgment of the trial court is affirmed.

      . “Robert F. Ritter, Trustee and Attorney for Buyers
      Robert F. Ritter”

      . “Meta Gerfers Grundmeyer_
      Meta Gerfers Grundmeyer, Individually and as Guardian of the Estate of Annie Gerfers”


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    P. T. POULTRY GROWERS, INC., Appellant, v. DARR EQUIPMENT COMPANY, INC., Appellee.
    No. 946.
    Court of Civil Appeals of Texas, Tyler.
    May 20, 1976.
    Rehearing Denied June 17, 1976.

      William Drew Perkins, Lufkin, for appellant.
    Tom D. Matthews, Matthews, Matthews, Sechrist & Madrid, Dallas, for appellee.
   MOORE, Justice.

This is an appeal from a summary judgment rendered in favor of plaintiff-appel-lee, Darr Equipment Company, Inc., against defendant-appellant, P. T. Poultry Growers, Inc., in an action upon a sworn account.

Plaintiff instituted suit against defendant in the form of a sworn account suing for labor and services performed and merchandise sold to defendant in the sum of $3,503.69, plus attorney’s fees of $1,400. Defendant’s verified answer consisted of a general denial and a special denial in which defendant alleged that the account was “not reasonable or just, in whole or in part.” Defendant’s answer also set up an affirmative defense in the nature of a breach of implied warranty. Attached to the answer was an affidavit of defendant’s secretary-treasurer in which he stated: “. . . the account which Plaintiff seeks to recover is neither just nor fair.” Plaintiff filed a motion for summary judgment accompanied by the supporting affidavit of its credit manager stating that the attached account records were true and correct and accurately reflected the amount due and owing by defendant. Defendant did not respond to plaintiff’s motion for summary judgment. After a hearing the trial court rendered a partial summary judgment in favor of plaintiff on the sworn account for the amount sued for. The final judgment incorporated the partial summary judgment and awarded attorney’s fees to appellee.

Defendant has appealed upon four points of error primarily contending that disputed issues of material fact existed with regard to its affirmative defense of a breach of warranty and therefore the action of the trial court in granting a summary judgment was erroneous.

Before discussing appellant’s points of error it would be helpful to describe the posture of the case at the time the trial court entered the summary judgment. Ap-pellee’s suit upon the sworn account was brought under the provisions of Rule 185, Texas Rules of Civil Procedure. The rule as amended in 1971 now provides that when an action “. . . is founded upon an open account or other claim for goods, wares and merchandise . . . or is for personal service rendered, or labor done . and is supported by the affidavit of the party, his agent or attorney . to the effect that such claim is, within the knowledge of the affiant, just and true, . the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true; . . . . When the opposite party fails to file such affidavit, he shall not be permitted to deny the claim, or any item therein . . . .” Rule 93(k), Texas Rules of Civil Procedure, was also amended in 1971 to conform to amended Rule 185 insofar as the pleading is concerned. Nowhere in appellant’s sworn denial was it alleged that each and every item sued upon was not just or true, nor did appellant allege that any specified items were not just and true. Appellant alleged only that the account sued upon was “not reasonable or just in whole or in part.”

Since the 1971 amendment of the rules, the decided cases have held that a denial of a verified account must be in the terminology of Rules 185 and 93(k) and the courts are extremely exacting in the nature of the language used in sworn denials of such accounts. Solor v. Petersson, 481 S.W.2d 212, 215 (Tex.Civ.App.—Houston 1972, no writ); Goodman v. Art Reproductions Corp., 502 S.W.2d 592 (Tex.Civ.App. —Dallas 1973, writ ref’d n. r. e.); Oliver Bass Lumber Company, Inc. v. Kay and Herring Butane Gas Company, Inc., 524 S.W.2d 600, 602 (Tex.Civ.App. — Tyler 1975, no writ). Language similar to that used by appellant has been held not to comply with Rules 93(k) and 185. See Youngblood v. Central Soya Company, 522 S.W.2d 277 (Tex.Civ.App.—Fort Worth 1975, no writ); Duncan v. Butterowe, Inc., 474 S.W.2d 619 (Tex.Civ.App.—Houston, 14th Dist., 1972, no writ). Since appellant’s verified answer did not conform to the requirements of Rule 185 or 93(k), the trial court properly disposed of the cause by entering a summary judgment in favor of appellee unless a disputed issue of material fact was raised on some other aspect of the case.

Appellant maintains that a disputed issue of fact was created by its verified answer affirmatively alleging a breach of warranty.

The fact that appellant’s sworn denial to plaintiff’s suit on a verified account was not in accordance with the requirements of Rules 185 and 93(k) did not deprive appellant of its affirmative defenses, such as a breach of warranty. Jorrie Furniture Company v. Rohm, 442 S.W.2d 476 (Tex.Civ.App.—San Antonio 1969, no writ); Goddard Machinery Co. v. Industrial Equip. Repairs, Inc., 351 S.W.2d 371 (Tex.Civ.App.—Waco 1961, no writ); Yelton v. Bird Lime & Cement Co., 161 S.W.2d 353 (Tex.Civ.App.—San Antonio 1942, writ ref’d w. o. m.). However, appellant failed to offer any summary judgment proof in support of such defense. Pleadings, even though sworn to, do not constitute summary judgment proof. Hidalgo v. Surety Savings & Loan Association, 462 S.W.2d 540 (Tex.1971); Horn v. Tuller, 524 S.W.2d 597 (Tex.Civ.App.—Houston, 1st Dist., 1975, no writ).

It is now settled that where, as here, the plaintiff moves for summary judgment in an action in which the defendant has pleaded an affirmative defense, he is entitled to have his summary judgment if he demonstrates by evidence that there is no material factual issue upon the elements of his claim, unless his opponent comes forward with a showing that there is such a disputed fact issue upon the affirmative defense. Gulf, Colorado & Santa Fe Ry, Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958); Torres v. Western Casualty and Surety Co., 457 S.W.2d 50 (Tex.1970). Since appellant failed to offer any proof in support of its defensive plea, no issue of disputed fact was created in that regard. Consequently, the record demonstrates that ap-pellee was entitled to a summary judgment as a matter of law.

We find no merit in appellant’s contention that appellee’s motion for summary judgment failed to comply with Section (e) of Rule 166-A, Texas Rules of Civil Procedure. Section (e) of the rule provides that sworn or certified copies of all papers referred to in an affidavit shall be attached thereto and served therewith. While the copies of invoices attached to the affidavit of appellee’s credit manager were not individually sworn to, the affidavit recites that the “annexed account” is just, true and correct.

The defects complained of appear to be formal rather than substantive. Youngstown Sheet & Tube Co. v. Penn., 363 S.W.2d 230 (Tex.1962). The deficiencies which appellant now urges, being purely formal, it must be assumed that they would have been corrected upon proper exception in the trial court. In any event, the matter should have been called to the attention of the trial court so that the court could have considered the matter in ruling on the motion for summary judgment. Maberry v. Julian, 479 S.W.2d 770, 775 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); Hall v. Fowler, 389 S.W.2d 730, 733 (Tex.Civ.App.—Dallas 1965, no writ). An objection of this kind may not be raised for the first time on appeal when it fairly appears from the record that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The judgment of the trial court is affirmed.


text:
    E. J. WATTS et ux., Appellants, v. The ALTO INDEPENDENT SCHOOL DISTRICT OF ALTO, CHEROKEE COUNTY, Texas, et al., Appellees.
    No. 927.
    Court of Civil Appeals of Texas, Tyler.
    May 20, 1976.

      Frank B. Murchison, Paxton, Whitaker & Parsons, James N. Parsons, III, Palestine, for appellants.
    Charles R. Holcomb, Rusk, Emerson Stone, Jr., Stone & Stone, Jacksonville, for appellees.
   McKAY, Justice.

Appellants, E. J. Watts and wife, brought suit against Alto Independent School District (Alto ISD), Cherokee County, Texas, its tax assessor and collector, the Board of Equalization, and the Trustees of Alto ISD, attacking the taxing scheme of Alto ISD. Appellants obtained a temporary restraining order against Alto ISD from certifying and approving the tax rolls and collecting taxes for 1975.

The matter of a temporary injunction was set for hearing on August 1, 1975, and on that date, by agreement of the parties, the temporary restraining order was continued in force and effect to a later hearing before a visiting judge. On August 12, 1975, the hearing was begun on the temporary injunction. After the hearing had begun, the parties, in chambers, agreed to continue the hearing pending negotiations for settlement, and an entry was so made on the court docket. Settlement negotiations were unfruitful, and on October 14, 1975, the hearing resumed and evidence was presented. While the proceedings were in progress the judge called the attorneys into chambers and advised them that he had decided the case on the merits and announced his decision.

Appellants contended that the proceedings were a continuation of the hearing for a temporary injunction, and that they were not prepared for trial on the merits of the case because they had not completed their investigation and discovery and their witnesses were not available. After hearing further testimony, the court, on October 14, 1975, rendered and signed what appears to be a final judgment, though unnamed, finding that the method of assessing the real property of appellants for ad valorem taxes was unlawful, unconstitutional and arbitrary, and ordering the Board of Equalization to return the property rolls to the tax assessor-collector so that taxes might be imposed on certain values as set out in the judgment. The judgment dissolved the temporary restraining order and also found certain personal property to have situs in Harris County.

Appellants filed a bill of exception to the action of the court, and the court signed an order upon such bill that it was his understanding based upon the representations made by counsel, that if a settlement was not effected and a further hearing was necessary, then the ease would be heard on the merits, and that such hearing on the merits was held without objection until the court’s decision was announced.

Appellees have not filed a brief. Appellants complain by their second point that the trial court erred in rendering final judgment at the conclusion of the hearing on the temporary injunction. We sustain the point and reverse and remand the case. It seems unquestioned that the court had the impression that if a settlement was not reached and another hearing was necessary, such further hearing would be on the merits. There is nothing in the record, however, to show that the court made any formal setting on the merits or to indicate such an announcement was made in open court to that effect, or that the court advised counsel accordingly in writing.

The sole question on an application for a temporary injunction was petitioners’ right to the preservation of the status quo, and to establish such right it was required only to show a probable right and a probable injury. Chesterfield Finance Co. v. State, 331 S.W.2d 368 (Tex.Civ.App.—Waco 1960, writ ref’d).

A temporary injunction is “merely a provisional remedy allowed by the court before trial of the case on the merits for the sole purpose of preserving the subject matter of the controversy as it existed at the time the suit was instituted. It cannot be used to determine the respective rights of the parties to the cause of action asserted or the defenses urged.” 31 Tex.Jur.2d, Injunctions, Sec. 12, pp. 47, 48.

The legitimate purpose of the temporary injunction is merely to preserve the existing condition until a final hearing can be had on the merits, and any attempt to rule on the merits would be invalid. James v. E. Weinstein & Sons, 12 S.W.2d 959 (Tex.Comm.App.1929, holding approved); 31 Tex.Jur.2d, Injunctions, Sec. 38, pp. 92, 93.

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


author: BREWSTER, Justice.

text:
    NEW TRENDS, INC., Appellant, v. STAFFORD-LOWDON COMPANY, Appellee.
    No. 17701.
    Court of Civil Appeals of Texas, Fort Worth.
    May 21, 1976.
    Rehearing Denied June 18, 1976.

      Lyne, Klein, French & Womble, and Erich F. Klein, Jr., Dallas, for appellant.
    Wynn, Brown, McConnico, Mack, Renfro, & Thompson, and Henry C. Meyer, III, Fort Worth, for appellee.
   OPINION

BREWSTER, Justice.

Stafford-Lowdon Company, appellee, initiated this action by suing New Trends, Inc., appellant, on a sworn account for sums that it alleged were owed to it for printing work that it had done under contract for the appellant. The appellant filed a proper written verified denial, as required by Rule 185, T.R.C.P., wherein it denied the justness of each and every item of the account. In the appellant’s answer it also affirmatively pleaded as a defense that the appellee expressly and impliedly warranted that the work would be of high quality and done in a workmanlike manner and that the color reproductions would be accurate and that these warranties were breached and the appellee’s printing job was not performed in a good and workmanlike manner. The appellant also urged a cross-action wherein it alleged the breach of. those warranties. It contended the breach caused it to lose profits in its business. By the counterclaim appellant sought to recover as damages from appellee the lost profits and expense it incurred in having another printer re-do part of the work.

A jury trial was had and on receipt of the verdict the trial court rendered judgment in favor of Stafford-Lowdon Company for $22,407.45, plus attorney’s fees. The counterclaim of New Trends, Inc., was denied.

This appeal is brought by New Trends, Inc., from that decree.

We affirm.

The effect of New Trend, Inc.’s verified denial of the correctness of Stafford-Lowdon Company’s sworn account was to destroy the probative force of the itemized account attached to its petition and to put Stafford-Lowdon Company on proof of its claim. Stafford-Lowdon Company, by virtue of New Trend, Inc.’s verified denial, had the burden in this case of proving its cause of action the same as it would have had to prove it up at common law. See Burrus Mills, Inc. v. Hein, 399 S.W.2d 950 (Tex.Civ.App., Houston, 1966, ref., n.r.e.).

The appellee had alleged in its petition: “That the verified account attached . arises out of business dealings between the parties, and is also an account covering certain color catalogues, goods, wares and merchandise, which Plaintiff, at the special instance and request of the Defendant, sold and delivered to the Defendant, on or about the dates specified, and in consideration whereof, the Defendant then and there promised to pay to Plaintiff the sums of money charged therefor, and upon the terms shown in said account . . .

The evidence shows that the parties had four transactions between them.

1. The undisputed evidence in the case showed that New Trends, Inc. was interested in having printed some 24-page colored catalogues for use in its business. Stafford-Lowdon Company submitted a written bid to appellant on that job wherein it offered to print the colored catalogues for appellant for a specified price per thousand cata-logues ordered. Appellant accepted such bid and under that contract Stafford-Low-don Company printed and sold to appellant 445,000 of such catalogues for the agreed price specified in the bid. These catalogues were delivered by appellee to the places designated by appellant. The amount of the invoice on this order was $21,647.20. It was dated September 20, 1972.

2. The undisputed evidence showed that thereafter on about October 10,1972, appel-lee submitted another written bid to appellant offering to print additional • copies of the same catalogues for appellant at the prices per thousand specified on the bid. The appellant accepted appellee’s offer and ordered 87,653 more copies of the same cat-alogue at the price per thousand specified in the bid. Appellee printed these additional copies and delivered them to the people and places designated by appellant. The amount of the invoice for this order was $5,588.90.

3. Thereafter appellee submitted another bid to appellant whereby it offered to print for appellant 40,000 additional copies of the same catalogue for the price per thousand specified on the invoice. Appellant accepted this offer and ordered 40,000 additional copies of the catalogue for the price specified in the bid and the appellee printed and delivered those catalogues to the persons and places designated by appellant. This last order was filled about November 3, 1972, and the amount of the invoice for that order was $4,080.00.

The undisputed evidence in the case established the facts referred to above in connection with the three catalogue orders.

4. The parties had one other transaction that is involved here. Appellant wanted 15,000 each of 11 catalogue sheets, printed on both sides using 4 colors. The appellee made a bid dated October 23, 1972, on that job. At first appellant awarded the job to another printer. Appellant needed these sheets by December 22, 1972, and in mid-December the printer to whom the job had been awarded withdrew. Appellee then agreed to undertake the job for its quoted prices if appellant would agree to let it print the sheets without submitting to appellant color keys. Appellant agreed to this because the deal had by that time become a rush order. Appellant accepted appellee’s bid to print these sheets for the price specified in the bid. Appellee then printed the order and delivered them by truck on the last day of the deadline to appellant’s place of business. There appellant took one box containing 500 of the printed sheets, and used part of them to fill out the catalogues of its salesmen. It then refused to accept from appellee the rest of the order, contending that the colors were poorly done. The invoice date on this was December 21, 1972, and the amount of the invoice was $6,181.35. This order was also placed for an agreed price. The facts related concerning this fourth transaction were also undisputed.

The undisputed evidence also showed that appellant paid $15,090.00 to appellee on the total amount owed. The total of the invoices for the four transactions is $37,497.45 and when the $15,090.00 is deducted from it a balance of $22,407.45 remains. This is the amount sued for by appellee and the amount appellee recovered by the judgment.

Appellant’s contention on this appeal is that the verdict returned by the jury was such that it would support no judgment in favor of the appellee. It contends that the only judgment that the verdict would support is one providing that neither party recover anything by their action against the other.

The appellee did not request the trial court to submit any issues to the jury tending to establish its cause of action. The charge contained no such issues except the three issues making inquiry as to what would be a reasonable attorney’s fee for plaintiff’s attorney.

In appellant’s first 16 points of error it contends that the trial court committed reversible error in not submitting to the jury for its determination various issues inquiring whether the appellee had proved by a preponderance of the evidence the elements of its cause of action. In some of those points appellant contends that the trial court erred in rendering judgment for ap-pellee because of such failure and that because appellee failed to request any of such issues the trial court could only render a take nothing judgment in so far as plaintiff’s action was concerned. Issues pertaining to appellant’s counterclaim were submitted in the charge and found by the jury against appellant. Appellant argues in those points that because no issues were submitted pertaining to appellee’s cause of action, the appellee waived such action. It further argues that since appellee’s action against appellant was thus waived and because the jury found against appellant on its counterclaim that the only judgment that the trial court could have correctly rendered in the ease was a take nothing judgment against both parties.

We have carefully considered appellant’s points of error 1 to 16, inclusive, and overrule each of them.

The elements of appellee’s cause of action were: (1) That appellee submitted separate bids to do each of the various printing jobs for the prices stated in such bids; (2) that the appellant accepted the offers contained in such bids and ordered the desired printing involved in each contract to be done for it by appellee; (3) that appellee did the printing and delivered it to appellant or tendered it to him; and (4) the amount of the contract price that is due and unpaid. See Brooks v. Eaton Yale and Towne, Inc., 474 S.W.2d 321 (Tex.Civ.App., Waco, 1971, no writ hist.)

The evidence in this case established each of those elements as a matter of law and for that reason the trial court was correct in not submitting issues concerning them to the jury.

One contention urged by appellant in its points 7, 8 and 9 is that the trial court erred in not submitting issues to the jury inquiring whether the catalogues and single sheets were reasonably worth the amounts charged therefor. In another of those points appellant says the trial court should have asked the jury if the account was just.

In cases where the parties have agreed on the price to be paid for the goods involved, as is the case in each of the four transactions involved here, it is not necessary to submit to the jury an issue inquiring as to the reasonable value of the goods or whether the goods involved are reasonably worth the price that the parties had agreed upon. The justness of the account in each of the four transactions involved here is established by the undisputed evidence that the parties have themselves agreed on the prices to be paid for the goods involved. See Brooks v. Eaton Yale and Towne, Inc., supra.

In appellant’s 17th and 18th points of error it contends that the trial court erred in placing the burden of proof on Issues Nos. 8 and 15 on the appellant instead of on appellee.

We overrule each of those points.

Special Issue No. 8 was: “Do you find from a preponderance of the evidence that Stafford-Lowdon failed to exercise good workmanship in printing the 24-page catalogs for New Trends?”

Special Issue No. 15 was: “Do you find from a preponderance of the evidence that Stafford-Lowdon failed to exercise good workmanship in printing the single sheets for New Trends?”

The jury’s answer to both of those issues was “No.”

Where parties contract as they did here there is an implied warranty that the work called for by the contract will be done in a good and workmanlike manner. Preiss v. Edge, 57 S.W.2d 883 (Tex.Civ.App., Austin, 1933, no writ hist.); Westbrook v. Watts, 268 S.W.2d 694 (Tex.Civ.App., Waco, 1954, ref., n.r.e.); Panhandle Gravel Co. v. Wilson, 248 S.W.2d 779 (Tex.Civ.App., Amarillo, 1952, ref., n.r.e.); and see 13 Tex. Jur.2d 547, Contracts, § 300.

The Supreme Court in Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (1947) stated the principle as follows: “ ‘Accompanying every contract is a common-law duty to perform with care, skill, reasonable expedience and faithfulness .the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of the contract.’ ”

It will be noted that as an affirmative defense to the cause of action alleged by appellee the appellant pleaded that the ap-pellee had not done the work involved in a good and workmanlike manner. This was a plea of breach of warranty. It contended that the catalogue single sheets were not printed in a good and workmanlike manner in that the colors placed thereon by appellee were not the true colors of the objects that were pictured on those sheets. Appellant had no complaint about the catalogues that appellee printed for it. Its complaint with reference to the catalogues was that the names of its customers that appellee rubber-stamped onto the catalogues, as was called for by the contract, were not all stamped on the catalogues straight. It further complained that not enough ink was used by appellee in this connection resulting in the imprint of the customer’s name being too light. It contended that because of such defects the work called for was not done in a workmanlike manner.

The burden of proof was upon the appellant in this case to prove the breach of warranty that he had pleaded as an affirmative defense to plaintiff’s action. In other words, appellant had the burden of proving that the contracts involved were not performed by appellee in a good and workmanlike manner. Scott v. Industrial Finance Corp., 265 S.W. 181 (Tex.Civ.App., Amarillo, 1924, writ dism.); C. H. Dean Co. v. Standifer, 37 Tex.Civ.App. 181, 83 S.W. 230 (1904, no writ hist.); Friesenhahn v. Tips Engine Works, 283 S.W. 341 (Tex.Civ.App., Austin, 1926, writ dism.); and Emerson-Brantingham Implement Co. v. Cornutt, 11 S.W.2d 262 (Tex.Civ.App., Austin, 1928, no writ hist.). And see 17A C.J.S. Contracts § 590d, p. 1148 note 68.

There is another reason why we overrule appellant’s 17th and 18th points of error. Issues Nos. 8 and 15 that appellant in those points complain of were both requested by appellant (Tr. 152 and 159). The trial court submitted them in its charge in the exact form requested by appellant. The issues as submitted placed the burden of proof on appellant. In points 17 and 18 appellant now contends that the trial court erred in submitting the two issues in the exact form requested by it.

The following is from Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487 (Tex.Com.App., 1942): “It is an elementary principle supported by many authorities that a litigant cannot ask something of a court and then complain that the court committed error in giving it to him. The rule, grounded in even justice and dictated by common sense, is that he is es-topped.”

Other eases holding the same way are: Continental Casualty Company v. Thomas, 463 S.W.2d 501 (Tex.Civ.App., Beaumont, 1971, no writ hist.); American Mut. Liability Ins. Co. v. Thomas, 35 S.W.2d 232 (Tex.Civ.App., Galveston, 1931, writ dism.); Barr v. White, 47 S.W.2d 910 (Tex.Civ.App., Beaumont, 1932, no writ hist.); and American National Ins. Co. v. La Blue, 45 S.W.2d 731 (Tex.Civ.App., Amarillo, 1932, no writ hist.).

Appellant’s 19th point of error is that the trial court erred in submitting Special Issue No. 16 conditioned on an affirmative answer by the jury to either Issue 14 or 15 over appellant’s objections to such conditional submission. The objection was that by submitting the issue conditionally the jury was advised of the effect of their answers to the issues.

We overrule that point of error.

Issue No. 14 asked in substance: Do you find, etc., that the failure of Stafford-Low-don to accurately reproduce the colors on the single sheets was a proximate cause of damage to New Trends?

Issue No. 15 is quoted verbatim above. It asked if Stafford-Lowdon failed to exercise good workmanship in printing the single sheets.

Issue No. 16 was the damage issue pertaining only to the single sheets part of the case. It in substance asked: What amount of money do you find, etc., would fairly and reasonably compensate New Trends for its damages which it reasonably and necessarily incurred in having the single sheets which were printed by Stafford-Lowdon reprinted by Taylor Publishing Company?

That damage issue was conditionally submitted. The condition in front of the issue was as follows: “If you have answered either Special Issue No. 14 or 15, ‘Yes,’ and only in either event, then answer this question.”

The jury did not answer Special Issue No. 14 because it was also conditionally submitted. In following the court’s instructions the jury, as it answered the issues, was not required to answer No. 14. The jury’s answer to Issue No. 15 was “No.” Because of the conditional submission of Issue No. 16 the jury did not answer Issue No. 16.

Even if we assume that the court did err in submitting Special Issue No. 16 (a damage issue) conditionally on the jury answering either Issue No. 14 or No. 15 “Yes” we hold that such error was a harmless error. Such error did not amount to such a denial of appellant’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment as is required by Rule 434, T.R.C.P., before it would constitute grounds for reversing the judgment appealed from.

In this case appellant had pleaded in his cross-action that Stafford-Lowdon had failed to accurately reproduce the colors on the single sheets and that such failure proximately caused damage to it in that it had to get Taylor Publishing Company to reprint them. It also pleaded that Stafford-Lowdon had failed to exercise good workmanship in printing those single sheets thus causing appellant to be damaged. These pleadings were read to the jury. Throughout the trial the appellant introduced evidence tending to establish those facts.

If the effect of the court’s action in submitting Issue No. 16 conditionally on a “yes” answer to either Issue No. 14 or No. 15 was to advise the jury of the legal effect of their answers, the jury was not advised of anything that they did not already know. Throughout the trial the jury had been advised that it was because of the failures of Stafford-Lowdon in the two respects inquired about in Issues Nos. 14 and 15 that New Trends, Inc. had sustained the damage of incurring the cost of having someone else print such sheets properly, which is the damage inquired about in Issue No. 16.

The following is from the opinion in Finck Cigar Co. v. Campbell, 134 Tex. 250, 133 S.W.2d 759 (Tex.Com.App., 1939, op. adopted): “It has been definitely decided that, to inform the jury of that which it already knows does not prejudice the rights of a litigant. (Cites cases.) The language complained of informed no juror of ordinary intelligence (which all jurors are presumed to possess) of anything which he had not already learned during the trial of the case, and the assignments presenting this question are, therefore, overruled.”

See also on this point Phoenix Refining Co. v. Muller, 109 S.W.2d 766 (Tex.Civ.App., Beaumont, 1937, err. dism.), and 41-B Tex. Jur. 762-763, Trial, Sec. 561.

In its points of error Nos. 20 through 26, inclusive, appellant contends that the jury’s answers to Special Issues Nos. 1, 7(A), 7(B), 7(C), 8, 9 and 15 are each against the great weight and preponderance of the evidence. We overrule each of those points of error.

The issues just referred to relate to appellant’s counterclaim. They were all found by the jury against appellant.

We have carefully examined the statement of facts and are convinced that sufficient evidence was introduced to support the jury’s answers to those issues. The findings complained of are not against the great weight and preponderance of the evidence.

In appellee’s 7th counter-point it asks that we award it an additional 10% of the amount in dispute as damages on the grounds that this appeal was taken for delay and without sufficient cause. Rule 438, T.R.C.P. is the rule relied on by appellee for this relief.

We refuse to grant such relief to appel-lee. We are unable to hold from the record before us that the appeal was taken for delay only.

The judgment is affirmed.


author: CORNELIUS, Justice.

text:
    Dan E. WHELAN, Jr. and R. J. Whelan, Appellants, v. S. H. KILLINGSWORTH and Scurlock Oil Company, Appellees.
    No. 8365.
    Court of Civil Appeals of Texas, Texarkana.
    May 25, 1976.
    Vernard G. Solomon, Huffman, Wedding, Hughey & Solomon, Marshall, for appellants.
    H. P. Smead, Jr., Longview, for appellees.
   CORNELIUS, Justice.

Appellants sued appellee Killingsworth to recover the cost of drilling and completing two oil wells upon a lease which, subsequent to the completion of the two wells, was adjudged to be owned by Killings-worth. Scurlock Oil Company was joined as a party because it was the purchaser of the oil produced from the two wells. The district court dismissed the action and appellants have appealed.

In 1942 appellants owned the leasehold estate in question. They assigned the lease to Killingsworth’s predecessors in title. Subsequently appellants brought suit in the District Court of Cass County to rescind that assignment and to recover the leasehold estate. Appellants prevailed in that suit, and judgment was entered in their favor for title and possession of the leasehold estate. While an appeal of that judgment was pending, appellants secured a writ of possession, entered upon the lease, and drilled the two wells. The appeal resulted in a reversal and rendition in favor of Killingsworth. Appellants then brought this suit for reimbursement of their costs in drilling such wells.

The facts recited above were stipulated, and on the basis of that stipulation appel-lees moved for judgment on the theory that, since appellants entered and drilled the wells pendente lite, they were willful trespassers as a matter of law and were not entitled to reimbursement. Appellants maintained that their entry pendente lite was not conclusive on the question of their good faith, and they were entitled to have the issue determined by a jury. The trial court sustained appellees’ position and dismissed the suit with prejudice.

One who improves real estate under the erroneous but good faith belief that he owns the land is entitled to recover from the true owner the cost of the improvements to the extent they have enhanced the value of the property. 30 Tex.Jur.2d, Improvements — Private, Sec. 15, p. 311; 43 Tex.Jur.2d, Oil and Gas, Sec. 565, p. 403, and cases there cited. Ordinarily, the question of good faith is one of fact to be determined by the jury or the trier of fact. Gulf Production Co. v. Spear, 125 Tex. 530, 84 S.W.2d 452 (opinion adopted); Broughton v. Humble Oil & Refining Co., 105 S.W.2d 480 (Tex.Civ.App. El Paso 1937, writ ref’d). But when the entry and the improvements are made during the pendency of litigation involving the validity of the improver’s claim of title, he makes them at his risk and he cannot be considered a good faith improver. Houston Production Co. v. Mecom Oil Co., 62 S.W.2d 75 (Tex.Comm’n App.1933, jdgmt. adopted); Kidd v. Hickey, 237 S.W.2d 389 (Tex.Civ.App. El Paso 1950, writ ref’d n. r. e.); Liles v. Thompson, 85 S.W.2d 784 (Tex.Civ.App. El Paso 1935, writ dism’d). See also Henderson v. Ownby, 56 Tex. 647 (1882). In such a case the improver occupies a position similar to that of a purchaser pendente lite. And for the purpose of determining good faith, actions taken after a favorable judgment but before the time for an appeal has expired are in the same category as those taken after suit is filed but before judgment is rendered. Randall v. Snyder, 64 Tex. 350 (1885); Harle v. Langdon’s Heirs, 60 Tex. 555 (1883).

Appellants contend that an exception applies to them because they were in prior peaceable possession of the leasehold premises. See Houston Production Co. v. Mecom Oil Co., supra. We cannot agree. Appellants had previously held possession of the leasehold estate but they voluntarily relinquished that possession when they assigned the lease. When the expenditures involved in this suit were made appellants were not in prior peaceable possession. They had made their entry, pending the final outcome of the litigation, solely for the purpose of drilling the wells. Such an entry does not constitute prior peaceable possession. It is true that when appellants entered and drilled the wells, they had a judgment vesting them with ownership of the lease, but the law charged them with notice that such judgment was not final and was subject to being reversed on appeal. Harle v. Langdon’s Heirs, supra.

Appellants urge that the rule announced by the cases heretofore cited should be abolished because the critical state of oil production and the necessity to encourage full and rapid development of oil reserves, as well as to protect against drainage, require that drilling not be delayed pending the outcome of litigation which is often quite lengthy. But the answer to that argument is that our district courts have ample equity powers to provide for the development of property pending the final outcome of litigation, and can exercise those powers when necessary and when called upon to do so.

Upon the stipulated facts, and according to the well settled principles heretofore noted, appellants were not entitled to the relief they sought. Although appellees’ plea was styled a “motion to dismiss,” it was more properly a plea in bar, and will be so considered. Tex.R.Civ.P. 71; Texas Highway Department v. Jarrell, 418 S.W.2d 486 (Tex.1967); 45 Tex.Jur.2d, Pleading, sec. 59, p. 473. The correct action upon sustaining such a plea is the entry of a take nothing judgment. Texas Highway Department v. Jarrell, supra; Heibel v. Bermann, 407 S.W.2d 945 (Tex.Civ.App. Houston 1966, no writ). The judgment of the trial court dismissing appellants’ suit with prejudice is therefore reformed to decree that appellants take nothing by their action.

As reformed, the judgment of the trial court is affirmed.

RAY, J., not participating.

       There have been several changes in ownership as the facts of this controversy developed. In using the terms “appellants” and “appellees” we intend to refer to the present parties and/or their predecessors in title, as the case may be.


author: WALTER, Justice.

text:
    James L. SANDERS et ux., Appellants, v. WEST TEXAS UTILITIES COMPANY, Appellee.
    No. 4937.
    Court of Civil Appeals of Texas, Eastland.
    May 27, 1976.
    Rehearing Denied June 17, 1976.

      David L. Hooper, Abilene, for appellants.
    David G. Stubbeman, Wagstaff, Harrell, Pope, Alvis, Dickenson & Erwin, Abilene, for appellee.
   WALTER, Justice.

The West Texas Utilities Company filed a motion to dismiss the appeal contending the court did not grant Sanders’ motion for a new trial on or before January 9, 1976, and it was therefore overruled by operation of law. We agree.

Final judgment was rendered in the above cause on November 14, 1975. Sanders’ motion for new trial was filed November 21, 1975. A written stipulation of the parties recited it was impractical for the court to determine the motion within 45 days after it was filed and the parties agreed the time “for determining the motion for new trial . . . shall be . extended to, and the decision of the motion postponed, until the 9th day of January, 1976.”

The court’s order postponing the hearing on motion for new trial recites:

“1. That the motion of Plaintiffs for new trial shall be argued at 3:00 o’clock p.m. before this court in its courtroom on January 9, 1976;
2. That this court shall act on said motion within 30 days after said argument; and . .”

Sanders deposited cash in lieu of appeal bond on March 5, 1976. A motion for extension of time to file transcript and statement of facts was filed on April 15, 1976.

Article 329b, T.R.C.P., provides in part as follows:

“3. All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement. Any such day certain shall not be more than ninety (90) days after such original or amended motion is filed.
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.”

The written agreement of the parties postponed the decision on the motion beyond the 45 days to a day certain, namely, January 9,1976. On this date, a hearing was had. The court did not grant Sanders’ motion. It was therefore overruled by operation of law on January 9, 1976.

No appeal bond or cash in lieu of bond was filed or deposited within thirty days after the motion for a new trial was overruled by operation of law as required by Rule 356, T.R.C.P. Sanders’ motion for extension of time to file transcript and statement of facts was not filed until April 15, 1976, which was 97 days after the motion for a new trial was overruled by operation of law. This motion was not timely filed. Rules 386 and 21c, T.R.C.P.

The motion to dismiss is granted.


text:
    Annie Jewell ALLEN et al., Appellants, v. Roy E. AVERY, Appellee.
    No. 8334.
    Court of Civil Appeals of Texas, Texarkana.
    June 1, 1976.

      Stacia M. Reed, Kirkpatrick, Grant, Dennis & Reed, James H. Ammerman, Marshall, for appellants.
    Tom Henson, Ramey, Flock, Hutchins, Grainger & Jeffus, Tyler, for appellee.
   CORNELIUS, Justice.

This suit grew out of a collision between an automobile driven by Roy Avery and a pickup truck driven by Elbert Allen. The collision occurred on State Farm Road No. 31 at a point adjacent to Rinkels’ Store. At about 7:15 p. m. Avery, who was proceeding south, topped the crest of a hill about 800 or 900 feet from the point of impact. Allen was proceeding north in his pickup truck. As Avery approached, Allen turned left across the highway toward Rinkels’ Store and the vehicles collided. Both parties were injured, and Allen later died of his injuries. The heirs of Allen filed suit against Avery for damages. Avery counterclaimed to recover his damages. The jury exonerated Avery of negligence as to speed, lookout and application of brakes. Allen was found guilty of negligence proximately causing the collision in that he failed to keep a proper lookout and made an improper left turn. Judgment was rendered that Allen’s heirs take nothing and that Avery recover his damages in the sum of $12,773.00. Allen’s heirs have appealed, assigning seven points of error. The first three points contend that the jury findings holding Avery not negligent with respect to speed, lookout and application of brakes are all against the great weight and preponderance of the evidence. The remaining points concern the trial court’s failure to allow evidence that Avery had settled his claim for benefits under the uninsured motorist provisions of his insurance policy for the sum of $3,500.00, and in failing to limit Avery’s recovery to that amount.

In attacking the jury findings relative to Avery’s speed, appellants point to Avery’s testimony that he left his place of work at about 7:05 p. m. and drove at no more than 55 miles per hour until the collision occurred at about 7:15. Since that distance was 11.7 miles and Avery had to make one stop at a red light, appellants say Avery must have exceeded his stated speed in order to have covered that distance in the intervening time period. However, Avery also testified that when he first saw Allen’s truck he took his foot off the accelerator and reduced his speed, and that he was traveling only about 45 or 50 miles per hour when Allen turned in front of him. Officer McVean testified the speed limit at the place and time of the collision was 70 miles per hour. James E. Flanagan, an eyewitness, estimated Avery’s speed “as it topped the hill and came to the point of impact” at 65 to 70 miles per hour. Mrs. Georgia Raven testified that Avery passed her at the crest of the hill at an estimated speed of 75 to 80 miles per hour. As indicated, the evidence was conflicting. The jury was entitled to believe the evidence favorable to Avery, and we cannot say its finding on speed is against the great weight and preponderance of the evidence. Avery’s testimony regarding his speed during the trip from work to Rinkels’ Store is not conclusive. The time of his departure from work as well as the time of the collision were but estimates. Moreover, the pertinent fact was not Avery’s speed at distant points, but his speed at or immediately before the collision. Blashfield’s, Cyclopedia of Automobile Law and Practice (Permanent Ed.), Vol. 9C, Sec. 6235, p. 402. There is ample evidence to support the jury verdict that he was not traveling at an illegal or an excessive rate of speed at that point. Even if Avery’s statement of his speed coming from work could be considered exact and to have some bearing upon his speed at the time of the collision, it would constitute nothing more than a conflict in his testimony which the jury had a right to resolve.

Nor can we agree that the jury findings as to Avery’s lookout and application of brakes are against the overwhelming weight of the evidence. The only evidence as to lookout was Avery’s testimony that he saw the pickup truck as soon as he passed the crest of the hill, and that he reduced his speed, anticipating that the pickup might turn. He also testified that when he was only about two car lengths away Allen made his turn in front of him, and that he then hit his brakes but was too close to avoid the collision. The officers testified there were skid marks indicating that Avery did in fact apply his brakes. Points 1, 2 and 3 are therefore respectfully overruled.

Appellee was insured by State Farm Insurance Company. His policy provided benefits for injuries suffered at the hands of an uninsured motorist. Allen was uninsured, and appellee accepted the sum of $3,500.00 from State Farm as benefits under the uninsured motorist provisions of his policy. The trial court excluded evidence of this payment. Appellants contend they should have been allowed to introduce this evidence. The basis of their contention is that appellee’s acceptance of $3,500.00 under the uninsured motorist provision constituted an admission against interest as to the amount of his damages. Appellants further assert that appellee should not have been allowed a recovery in excess of the amount he accepted from his insurer.

A compromise settlement, as distinguished from an unequivocal demand or statement of damages, is not admissible in evidence as an admission of the extent of one’s injuries or the value he places upon his claim. Sullivan v. Missouri, K. & T. Ry. Co., 110 Tex. 360, 220 S.W. 769 (1920); McGuire v. Commercial Union Insurance Co. of N.Y., 431 S.W.2d 347 (Tex.1968); Hundere v. Tracy & Cook, 494 S.W.2d 257 (Tex.Civ.App. San Antonio 1973, writ ref’d n. r. e.); Beasley v. Huntley Estates at Ardsley, 25 Misc.2d 43, 137 N.Y.S.2d 784 (1954), affirmed 285 App.Div. 887, 137 N.Y.S.2d 787 (1955). It is within the discretion of the trial court to determine from the surrounding facts and circumstances whether or not an offer or acceptance was in compromise, and the appellate court is not authorized to overrule that discretion if the trial court’s action is supported by sufficient evidence. Ditto v. Piper, 244 S.W.2d 547 (Tex.Civ.App. Fort Worth 1951, writ ref’d n. r. e.). On the bill of exceptions appellee was asked if he “accepted” the sum of $3,500.00 from his insurer, and he agreed that he did so. There was no attempt to introduce any demand or statement by ap-pellee stating the extent of his damage. As the trial court excluded the proffered evidence we must presume he found it was a compromise settlement, and on the record here such a finding is justified. Neither would the amount of the settlement constitute a ceiling on appellee’s recovery. In addition to its inadmissibility as a compromise, the use of it to limit or mitigate appellee’s recovery would violate the collateral source rule long recognized in our state. Green v. Texas & P. Ry. Co., 125 Tex. 168, 81 S.W.2d 669 (1935, opinion adopted); Chapman v. Evans, 186 S.W.2d 827 (Tex.Civ.App. Fort Worth 1945, writ ref’d w. o. m.); Graves v. Poe, 118 S.W.2d 969 (Tex.Civ.App. El Paso 1938, writ dism’d); 17 Tex.Jur.2d, Damages, Sec. 103, p. 173.

Appellants complain of a conflict of interest on the part of appellee’s insurer, citing Allstate Insurance Company v. Hunt, 450 S.W.2d 668 (Tex.Civ.App. Houston 14th Dist. 1970), affirmed 469 S.W.2d 151 (Tex.1971), but we can see no conflict here which would require a reversal. Appellee’s insurer settled with him for the benefits payable under the uninsured motorist provisions of his policy, and then undertook to defend him against the damage action brought by the heirs of the uninsured motorist. This it not only had the right, but the duty to do, as is clearly indicated in Allstate Insurance Company v. Hunt, supra. There was no dual representation of both its insured and the uninsured motorist as was true in that case.

Appellants’ last point of error requesting a remand for further development has been considered and is respectfully overruled.

The judgment of the trial court is affirmed.


author: SMITH, Chief Judge.

text:
    COUNTY OF ST. CHARLES, Plaintiff-Respondent, v. Dale ROLLINGS, Defendant-Appellant.
    No. 36589.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 27, 1976.
    Motion for Rehearing or Transfer Denied June 15, 1976.
    Evans & Dixon, Ralph C. Kleinschmidt, Gerre S. Langton, St. Louis, for defendant-appellant.
    Ronald L. Boggs, Pros. Atty., Joel B. Eisenstein, Asst. Pros. Atty., St. Charles, for plaintiff-respondent.
   SMITH, Chief Judge.

Defendant appeals from a summary judgment rendered against him for $17,203.98. We reverse.

Plaintiff brought this suit to recover from defendant $17,203.98 paid by plaintiff to defendant over a period ranging from October, 1971, through October, 1972. The allegations of the petition were that “defendant did present a certain professional statement and bill for legal services allegedly performed to the County Court of St. Charles County . . . for services performed in conjunction with the St. Charles County Sewer District . . . ” It was then charged that the services were not in fact for legal services but “were largely for mere lobbying and personal expenses of defendant” and that the payments were “unauthorized, ultra vires acts” to “which he was not legally entitled.”

Each of the detailed monthly bills were attached as an exhibit. Each monthly bill set forth the legal activities engaged in and was a differing amount ranging from $562.72 to $3338.46. Defendant admitted the submission of the bills and the receipt of the money and denied the allegations that he was not entitled to the money and that the payments were unauthorized. In answer to requests for admissions, defendant admitted the presentation of the bills and receipt of payment. He denied that such statements were for lobbying services and personal expenses.

Plaintiffs motion for summary judgment set out the foregoing admissions, alleged that on August 15, 1972, the County Court filed its Petition for Appointment of Commissioners to Establish Boundaries of Common Sewer District which was granted on August 18, 1972. Thereafter in November, 1972, the Sewer District was incorporated by the Circuit Court following voter approval. Plaintiff then alleged that the County Court lacked the authority to make expenditures concerning the incorporation of a common sewer district and that the statute (Sec. 204.470) imposes upon county officials the duty to perform all acts and render all services necessary to carry out the purposes of Section 204.250 to 204.470, RSMo 1969. The plaintiff further contended that the Prosecuting Attorney “shall represent generally the County in all matters of law and draw all contracts relating to the business of the County.” Sec. 56.070 RSMo 1969. Upon these allegations, plaintiff sought and received summary judgment.

Defendant filed his affidavit in opposition to the plaintiff’s motion for summary judgment denying that the money was improperly paid. He also filed an affidavit from the Presiding Judge of St. Charles County setting forth the contractual arrangements between plaintiff and defendant, the approval of Mr. Rollings hiring by the County Court and that defendant performed the legal work requested for the benefit of the County. The contract is evidenced by a letter from defendant to the County Court evincing his interest in representing the St. Charles County Sewer Commission and establishing his charges at $35 per hour. The minutes of the County Court of September 9, 1971, state: “The Court approved hiring of Dale L. Rollings, Attorney, to work with the County Court and the Sewer Commission. Legal work will be billed at the rate of $35 per hour. Letter from Mr. Rollings reviewed and ordered filed.” Defendant also submitted an affidavit from the County Auditor that he had approved the payment of attorney’s fees submitted by defendant in the regular course of the administration of the duties of the Auditor’s office.

Other than what can be gleaned from the bills attached as exhibits, the record does not establish what the services rendered consisted of. From the bills and the dates of service it is apparent that part of the services were expended in obtaining enactment of legislation authorizing a county of the second class to form a common sewer district. See Laws (Mo.) 1972, p. 831 et seq. approved April 20, 1972. Subsequent to that, additional service was rendered implementing that legislation in St. Charles County, culminating in the incorporation of the Sewer District in November, 1972.

It is readily apparent that plaintiff did not pursue its originally pleaded contention that the services rendered were not for legal services. The motion for summary judgment, as well as the brief in this court, are based upon the theory that the services rendered were legal services. Otherwise, there would be no reason for reliance upon See. 56.070 which provides: “The prosecuting attorney shall represent generally the county in all matters of law . .”

We further note that at no place in its pleadings or brief has plaintiff alleged or charged that the charges were not reasonable, that the contract or requests for payment were the product of fraud or misrepresentation, or that the services did not produce a benefit for the County. We therefore deal solely with the question of whether upon summary judgment, as a matter of law, the County may recover back from defendant, as restitution, money paid by the County for services rendered by defendant, by which the County presumably benefited.

At the outset, we note that plaintiff has produced no constitutional or statutory authority which expressly prohibits the contract entered into here. Rather, plaintiff relies upon the absence of express or implied authority to enter into such a contract and the rule that the power of a county is limited to those powers granted by the legislature. Plaintiff then seeks to demonstrate that no such power has been granted. Defendant counters by contending that there is statutory authority for the contract entered into here. We need not embark upon the rather complicated statutory expedition charted by the opposing sides. Rather, we decide the case upon the following established rule of law:

“Third. That if the contract has been fully executed by both parties thereto, then the corporation will not be heard to say the contract was not let according to law, or that it had no power or authority to enter into the contract, and recover back the consideration paid by it without it first returns or offers to return the benefits it has received under the contract by virtue of its execution; and even where the corporation in such cases has placed itself beyond the power of making restitution, it will not be permitted to plead the illegality of the contract and recover back the consideration paid. This, the third proposition, rests upon the maxims, ‘He who seeks equity must do equity,’ and ‘He who comes into equity must come with clean hands.’ ” Seaman v. Cap-Au-Gris Levee Dist., 219 Mo. 1, 117 S.W. 1084, l. c. 1094 (1909). See also Sparks v. Jasper County, 213 Mo. 218, 112 S.W. 265 (1908); Cole County v. Central Missouri Trust Co., 302 Mo. 222, 257 S.W. 774 (1924); Polk Tp., Sullivan County v. Spencer, 364 Mo. 97, 259 S.W.2d 804 (1953); Bride v. City of Slater, 263 S.W.2d 22 (Mo.1953).

Plaintiff does not address itself to the line of authority above set out. Rather, it cites cases which involve different situations. This case is not one where one party is seeking to enforce payment under an invalid contract. (Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874 (banc 1943)), or where the services rendered were for the benefit of county officials personally rather than the county itself (County of St. Francois v. Brookshire, 302 S.W.2d 1 (Mo.1957)), or where the contract was expressly forbidden by law (Coleman v. Kansas City, 348 Mo. 916, 156 S.W.2d 644 (1941)).

The contract here has been fully performed on both sides. No fraud has been alleged or appears. There is no express statutory prohibition against the contract. No evidence was developed that the county has not been benefited by defendant’s services in obtaining the incorporation of a sewer district and it is apparent the County cannot return any such benefit.

Plaintiff’s motion for summary judgment was based upon the legal proposition that it was entitled to restitution regardless of benefit. In this it is wrong. Since the full nature of the services performed, their reasonable value, and the degree to which they benefited the county in whole or part have not been developed, the cause must be remanded. The rule of law which we have here applied in holding the summary judgment improper, is conditioned upon the factual proposition that the services rendered benefited the county. Upon the record before us, we cannot presume they did or did not.

We must note one other matter. The transcript charges here are based upon a rate of $1.30 per page for 71 pages. Of those 71 pages, 1 is 3 lines long, 1 is 4,1 is 5, 3 are 6, 3 are 7, 2 are 8, 6 are 10, and 8 others are less than 25 lines in length. Each separate document, order, or occurrence begins on a new page and regardless of how short, no other entry appears on that page. Twenty-four pages of the transcript consist of exhibits 1 through 12 which are Xeroxed and taped onto the page and each of these exhibits appears in the same form in two different places in the transcript. Sec. 485.100, RSMo 1969, provides that the charge per page for a transcript shall be based upon a 25 line page. The 243 lines which occupy 25 non-statutory pages in this transcript should have covered 10 pages. At $1.30 per page, the excess pagination amounts to $19.50. Rule 81.14(b) provides against duplication of the same material in the transcript. Twelve pages devoted to duplication of the same exhibits were also unnecessary. That amounts to $15.60. The cost of the transcript as taxed by this court will be in the amount of $57.20, and if the amount certified to in the transcript has already been paid, the trial court is directed to order that $35.10 of the amount paid be refunded by the court reporter.

Judgment reversed and cause remanded for further proceedings consistent with this opinion.

NORWIN D. HOUSER and ALDEN A. STOCKARD, Special Judges, concur.