author: EVANS, Justice.

text:
    GENERAL MOTORS CORPORATION et al., Appellants, v. R. M. HOPKINS, Jr., Appellee.
    No. 16642.
    Court of Civil Appeals of Texas, Houston (1st Dist.)
    Feb. 19, 1976.
    Rehearing Denied March 18, 1976.

      Vinson, Elkins, Searls, Connally & Smith, B. Jeff Crane, Jr., Simon M. Frank, Daniel A. Hyde, Francis E. McGovern, Harry M. Reasoner, Eleanor S. Glass, Houston, for General Motors; Frazer F. Hilder, Thomas W. Watkins, Detroit, Mich., of counsel.
    Vincent W. Rehmet, Houston, for appellant Bud Moore Chevrolet, Inc.; Barrow, Bland & Rehmet, Houston, of counsel.
    Kronzer, Abraham & Watkins, W. W. Watkins, W. James Kronzer, Houston, for appellee.
   EVANS, Justice.

This is a products liability case. The appellee, Robert M. Hopkins, Jr., suffered severe neck injuries, which rendered him a quadriplegic while riding as a passenger in a 1970 Chevrolet pick-up truck being driven by his friend, James Roy Averyt. The truck in question had been purchased by Hopkins from appellant Bud Moore Chevrolet, Inc. approximately eleven months prior to the date of the accident. It was equipped with a quadrajet carburetor designed and manufactured by appellant General Motors Corporation. It is Hopkins’ contention that by reason of the defective design of the quadrajet carburetor, the vehicle continued to accelerate in speed notwithstanding Averyt’s release of the accelerator pedal.

On jury findings that the carburetor was defectively designed and that such defect was a producing cause of the occurrence, the trial court entered judgment against appellants, General Motors Corporation and Bud Moore Chevrolet, Inc., jointly and severally, for the total sum of $1,760,000.00. It was also adjudged that Bud Moore Chevrolet have judgment against General Motors for full indemnification. Bud Moore Chevrolet has adopted in full General Motors’ nine points of error.

In its first four points of error General Motors attacks the legal and factual sufficiency of the evidence to support the jury’s findings of defective design and producing cause. In reviewing its legal sufficiency points we have considered only the evidence and inferences therefrom which support the jury’s findings. In reviewing its factual sufficiency points we have considered all of the evidence.

The accident occurred on June 11, 1971, about 9:30 p.m. In the late afternoon of that day 19 year old Robbie Hopkins had driven his pick-up truck from Houston to Port Bolivar in Galveston County, Texas, for the purpose of transporting certain work tools to his family’s cottage. He was accompanied by his friend, James Roy Av-eryt. Shortly prior to the accident, Averyt and Hopkins decided to return to Houston by taking the Galveston Ferry from Port Bolivar. Averyt drove the truck (with Hopkins as passenger) from the Hopkins cottage to Overton Street, then turned right on Overton and proceeded through Port Bolivar at approximately 35 miles per hour. At the end of Overton Street the road curved sharply to the left and there was a single lane wooden bridge over a water crossing. Averyt testified that in order to negotiate this curve and bridge he shifted down to second gear and slowed to a speed of 10 to 20 miles per hour. After crossing the bridge Averyt proceeded along Old Frenchtown Road which at that time and location was shelled, bumpy and “real rough.” There was a straight stretch of Old Frenchtown Road 250 to 300 yards in length from the bridge crossing to a sharp 90° curve to the right where the accident happened. Averyt testified that on this stretch of road he accelerated to a speed of 30 to 35 miles per hour but did not shift from second to third gear. In order to pick up speed Averyt punched down on the accelerator pedal and then let up on it. He punched it again “just . . . maybe jacking around” and let up on it again, expecting the truck to “gear itself down.” At this point he was “coming into the curve” and the vehicle “just jumped away.” He made an attempt to apply the brakes and clutch but was unable to control the vehicle. The truck proceeded on its straight path through the curve and after leaving the road turned over several times. Averyt testified that when he depressed the clutch he heard “a loud roar of the engine.” Averyt was thrown from the vehicle and suffered a leg injury. Hopkins’ neck was broken by the impact of turning over and he had to be removed from the floor board of the vehicle. Hopkins testified he became alarmed when he could see they were going too fast to make the curve. He said he looked over at Averyt and that Averyt looked “at me as if I were doing it.” He said Averyt looked “lost, completely bewildered.” Hopkins said he then looked down at the floor board and saw that Averyt’s foot wasn’t even on the accelerator. Hopkins said he dove across the seat and put his hand on the accelerator to try “to jiggle it” believing it was stuck and then he heard the engine “really take off.” It sounded “like an airplane taking off.” He said he then reached for the ignition key but was unable to turn it off in time to avoid the accident.

The quadrajet carburetor is a complex assembly of related parts, the collective function of which is to supply a proper mixture of air and gasoline into the engine’s combustion chamber. As the name “quadrajet” implies, there are four passages or “barrels” through which the flow of air is directed. This air flow is controlled by certain “butterfly” type valves which are opened and closed according to varying engine conditions. Generally speaking, the greater the amount of air and gasoline which flow through this system and the greater the ratio of air-to-gasoline, the higher degree of efficiency and acceleration achieved. For cruising and lower driving speeds, only the two “primary” valves are activated. The driver may, however, obtain additional bursts of power, as when passing another vehicle, by sharply depressing the accelerator pedal and thus activating the two “secondary” valves. In order to prevent the “secondaries” from opening at unintended times, as when the engine is idling, the quadrajet carburetor utilizes an external “lock-out” system. Simply stated, the “secondaries” are “locked out” (i. e., maintained in a closed position) by a pivoting lock-out pin which is attached to the secondary valves. This pin rotates and except when driving conditions require opening of the secondary valves, the pin is positioned or “locked” under the “lock-out lever.” Both the lock-out pin and the lockout lever are located outside the carburetor housing and are not encased within the enclosure. Thus, these parts are not protected from the elements and may be seen by looking under the hood of the engine. It is essentially Hopkins’ contention that by reason of the defective design of the carburetor assembly, the lock-out pin was permitted to “hang” on top of the lock-out lever with the secondaries open, instead of returning to its position below the lever, so that the secondaries became “locked open” and the vehicle continued to accelerate in speed notwithstanding Averyt’s release of the accelerator pedal.

General Motors contends that there is no evidence in the record from which the jury could have found that the design of the quadrajet carburetor created an unreasonable risk of harm. It argues that out of some 15,000,000 such carburetors designed and manufactured, some 3,000,000, of which were equipped with a lock-out system of the type installed on the Hopkins vehicle, the claim of defective design asserted by Hopkins is unique and that all of the credible evidence conclusively shows that the system could not have malfunctioned as Hopkins claims.

In our opinion there is evidence in the record which would support the jury’s findings that the carburetor was defectively designed and that such defect was a producing cause of the occurrence.

There was testimony that several weeks prior to the accident, Hopkins, while driving the truck, had a similar experience. On that occasion Hopkins had turned onto Fulton Street in Houston, Texas. Riding as a passenger with him was his friend, Roy Averyt. Hopkins testified that when he pushed down on the accelerator to obtain speed and then released the pedal, the truck’s speed did not decrease, but instead the truck took off “in a roar.” Since he was on a straight stretch of road, Hopkins was able to bring the truck to a stop by applying his clutch and brake. He and Averyt then dismounted from the truck and were examining the engine, when they were noticed by a mechanic, William Prime, who was also a friend of Hopkins, who happened to be driving along Fulton Street. Prime stopped his car and after determining that the accelerator linkage was functioning in a normal manner, suggested that Averyt get in the truck and start the engine. When Averyt started the engine it began to race notwithstanding Prime’s manual operation of the accelerator linkage. Averyt then turned off the ignition and Prime again examined the engine to determine the cause of the problem. During this examination, Hopkins asked Prime whether the fact that the lock-out pin was positioned on top of the lock-out lever could be the cause, although Hopkins was not then aware of the function of such parts or their correct names. Prime then worked the accelerator linkage back and forth a number of times and the lock-out pin returned to its position below the lock-out lever. Prime testified he was unable to make the pin “hang” again on top of the lever but that before he manually released the pin from its position on top of the lever, he looked down the carburetor barrels and noticed that the secondaries were partially opened.

After the accident Prime went out to the Hopkins house to look at the truck for the specific purpose of determining whether the secondary valves in the carburetor were open. He testified that when he first looked at the carburetor, the lock-out pin was positioned on top of the lock-out lever and the secondaries were open approximately one-third. The jury could have concluded from this testimony and from photographs taken of the carburetor system after the accident that at the time of the accident the lock-out pin was positioned on top of the lock-out lever and that the secondary throttle valves were thereby “locked open.” There was also testimony from which the jury could have concluded that when the secondary valves were opened approximately one-third, the speed of the vehicle in second gear could reach and exceed 70 miles per hour.

General Motors offered extensive testimony tending to prove that the secondary valves could not be “locked open” during driving conditions. Mr. Donald Stoltman, an engineer-employee of General Motors, who had obtained patents on the quadrajet carburetor, testified that it was virtually impossible for the lock-out pin to get on top of the lock-out lever during driving conditions, even when the choke rod was not properly attached. Stoltman testified that such an occurrence might be conceivable in a “cold engine” situation but that under driving conditions it was contrary to the laws of physics and the mechanical operation of the carburetor parts for the pin to get on top of the lever. Another engineer-employee of General Motors, Arthur Van Stellandt, testified to the effect that actual road tests with a mounted camera on a truck driven over a bumpy road proved there was not enough freedom of movement in the mechanism to permit the pin to get on top of the lever. Based upon this and other testimony General Motors contends that it is a “physical, mechanical and theoretical impossibility” for the lock-out pin to hang on top of the lock-out lever during warm engine operation, at least with the choke rod attached.

While the testimony offered on behalf of General Motors did tend to establish the improbability of the occurrence of this condition during normal driving circumstances, there was evidence, which, if believed by the jury, tended to show that such phenomenon was possible. Mr. Lavert LaRue, a mechanic called as a witness on behalf of Hopkins, testified that if the lock-out pin and lock-out lever were clean, it would be very difficult for the pin to hang on top of the lever. However LaRue testified that a minimal amount of grit or other granular substance might cause the mechanism to “drag” in such a manner that the pin would hang on top of the lever. Indeed, one of General Motors’ own expert witnesses, Mr. Theodore A. Redman, conceded this possibility.

“Question: You can see how if grit or a granular substance accumulated on top of the lock-out lever and existed between the lever and the bottom of the lock-out pin, that could also add to the drag-factor and cause the pin and lever to jam?
“Answer: It would certainly act as a drag factor, yes.
“Question: There is no question about that, is there?
“Answer: No, sir.”

A side view photograph of a similar qua-drajet carburetor tested at the General Motors’ Milford Proving Grounds in Michigan was identified by LaRue as evidencing the same “problem” (i. e., the secondary lockout pin “hung” on top of the lock-out lever) which he had observed with the Hopkins carburetor. LaRue testified that the two lock-out systems appeared “to be hung identically in the same way.” Despite testimony to the effect that the gravitational and mechanical forces upon the lock-out system usually returned the secondary pin to a position below the lever, there was also testimony that the secondary pin could bypass the lever as a result of engine vibrations resulting from a rough and bumpy road. Based upon Mr. LaRue’s testimony and that of two other Hopkins witnesses, Mr. Lloyd Koenig and Dr. Douglas F. Muster, and upon evidence obtained from General Motors’ own files and witnesses, the jury could have concluded that it was possible to hang the lock-out pin on top of the lock-out lever during driving conditions and while the secondary valves were in an open position.

There was also evidence from which the jury could have concluded that at a date well prior to the sale of the truck in question, General Motors was aware of this problem and that by a reasonable cost expenditure it could have timely designed and manufactured a ramp type lock-out lever which would not permit a recurrence of the situation. Intercompany records of General Motors show that on May 21, 1969, more than a year prior to the date Hopkins purchased the 1970 pick-up truck, one of its engineers, Mr. George Polen, wrote a letter to another engineer-employee, Mr. Theodore Redman, explaining that the secondary lock-out system in his chief engineer’s automobile had “jammed and held the secondary valves approximately open . . . ” Mr. Polen stated that “the system had been successfully locking out the secondaries pri- or to this problem” and that the problem had occurred when the accelerator pedal was released “and the ‘secondary pin’ locked itself above the ‘lock-out’ lever.” Mr. Polen further stated that several production carburetors had been checked and no alignment problems were found, but that it was possible to “stick” the pin above the lever. Polen asked Mr. Redman what design proposals were available to prevent the secondaries from “sticking open” if the pin did pass by the lever and stated his belief that a redesign was required to prevent any possibility of the secondaries being held open. Mr. Polen further stated that the condition had been observed on the problem car because of a “hard start” complaint, but he concluded that the “condition would also be a safety problem.”

On the same date that Mr. Polen wrote this letter to Mr. Redman, he also called him on the telephone. Mr. Redman testified that Mr. Polen’s main concern during the telephone conversation was the fact that the pin could become positioned on top of the lever and “hang the secondary throttles.” He testified that Mr. Polen’s primary concern was related to the safety factor, rather than to whether the car would start easily.

“Question: Did you get the impression that Mr. Polen’s concern was really related to safety rather than whether the car would start?
“Answer: Yes.
“Question: You could understand that, being a carburetor man?
“Answer: Yes.
“Question: For if that pin and lever jammed in the open position and stayed that way, it could cause that car to run at a fast rate of speed?
“Answer: Yes.
“Question: And stay that way?
“Answer: Yes.
“Question: And create hazards to people who operated that car under certain circumstances?
“Answer: Yes.
“Question: And that needed to be eliminated as far as possible?
“Answer: Yes.
“Question: And one way to eliminate it was to design this lock-out lever in such a way as to have a 45 degree ramp on the end of the lock-out lever instead of a radius?
“Answer: It would in our opinion be an improvement.
“Question: And far add to the safety of the product?
“Answer: It would add to the safety of the product.
“Question: And you wouldn’t have modified it if it had went in the other direction, would you?
“Answer: No, sir.”

Also on May 21, 1969, Mr. Sy Seigel, a design engineer for General Motors, distributed to Mr. Polen and others in General Motors an illustrated redesign of the lockout lever “to eliminate the possibility of catching the pin and the secondary throttle shaft on top of the lock-out lever.” Mr. Seigel explained that this was accomplished by adding a steep “ramp” on the top of the lock-out lever, just above the notch where the lever engaged the pin. Thus, if the pin should get positioned on top of the lever, the ramp would cause it naturally to slide off of the lever. According to Seigel this ramp “makes it practically impossible for the pin to hang up on the lever.” Thereafter, on July 16, 1969, Mr. Reed Brown, another design engineer for General Motors, sent a telegram to Polen recommending approval of the lock-out lever system as designed because “it is a safety related item.” By letter of the same date Brown wrote to Polen “urgently requesting your immediate approval of our throttle valve lock-out system . . On July 29, 1969, Mr. Redman wrote to Mr. Polen stating that in response to Polen’s telephone request, he, Redman, wished to review the work done on the lock-out lever to prevent secondary throttle valve opening during cold operation. That he had “two known cases of sticking secondary throttles” due to the lock-out lever being positioned under the pin. That prior to Polen’s letter of May 21, they had a design revision tested and in their cost system. That in each of the two cases the lock-out lever “was bound by corrosion, and in some fashion got under the pin which didn’t have sufficient force to move the bound lever and allow the secondaries to return to the closed position.”

Subsequent intercompany correspondence and memoranda concerning these design changes indicate that the proposed redesign of the lock-out system would have resulted in a per-unit increase of .011 dollar, a tooling charge of $7,700.00 and would have required an estimated “lead” time of 19 weeks for tooling.

The evidence further established that the redesigned lever was first incorporated into an assembled quadrajet carburetor on June 10, 1970. Mr. LaRue testified that after the lock-out lever was so modified, the pin would hit the lever at a different angle and could not hang on top of the lever notwithstanding the presence of grit or other foreign substance. He testified that with such modification the lock-out pin would “always snap back, consequently you can’t hang the rear barrels open.” Dr. Douglas Muster, a witness called on behalf of Hopkins, testified that the modification of the lock-out lever was “a relatively easy way to fix” the problem and that the ramp design on the lever prevented the lever from being under the pin “so that it is really a fail-safe feature.”

The trial of this cause commenced on October 30,1974, and lasted until December 6,1974. During this period of time the jury heard from more than 40 witnesses. The statement of facts is some 4796 pages in length. The great bulk of this testimony pertains to the working of the carburetor system. The evidence as to whether and under what circumstances the secondary valves might be “locked open” was quite persuasively evaluated by expert witnesses for both parties.

The jury was, of course, entitled to accept that testimony which it found to be most relevant and believable and to reject testimony to the contrary, including that of the expert witnesses. • Thus, the jury was entitled to believe the testimony of the witnesses who stated that they had examined the Hopkins carburetor after the accident and found the lock-out pin positioned on top of the lock-out lever. They were entitled to consider the post-accident photographs of the Hopkins carburetor as visual proof that at the time of the accident the lock-out pin had jammed on top of the lock-out lever with the secondary valves in an open position. The jury was also entitled to accord weight to the documentary evidence taken from General Motors’ own records which tended to show that prior to the accident General Motors had determined not only that such malfunction could and had occurred but that it could be prevented by a relatively simple and inexpensive redesign of the lock-out lever. From all of the evidence the jury could have concluded that the General Motors design created an unreasonable risk of harm to its users. We hold that there is evidentiary support for the jury’s findings that the product was defectively designed and that such defect was a producing cause of the occurrence. We further hold that such findings are not against the great weight and preponderance of the evidence. Appellants’ points of error 1 through 4 are overruled.

In its next four points of error General Motors asserts that the trial court erred in disregarding the jury’s findings with respect to the defense of misuse.

Subsequent to the incident on Fulton Street, but prior to the date of the accident, Robbie Hopkins decided to remove the original quadrajet carburetor from his truck and to replace it with a “Holly” carburetor, which he had purchased from a friend, Lane Matthews. Hopkins had decided to replace the quadrajet with a Holly in order to increase the speed and efficiency of the truck. Hopkins, together with Matthews and Av-eryt, removed the quadrajet from the truck manifold and using an adaptor plate, installed the Holly in its place. About a week later Hopkins decided to remove the Holly and reinstall the quadrajet because the Holly was causing his engine to “flood out.” Hopkins then removed the Holly and the adaptor plate from the manifold and replaced it with the original quadrajet. It is the contention of General Motors that this reinstallation was a “butchery” of its engineered carburetor system and that in making such reinstallation, Hopkins altered the originally installed carburetor system as follows: (1) by failing to connect the choke rod; (2) placing the thermostatic coil cover on backwards and in raised position; (3) “Burring” the end of the lock-out pin; (4) improperly connecting the distributor spark advance vacuum hoses; (5) using a nail instead of a cotter pin in the main accelerator rod linkage; (6) and (7) using improper gasket materials between the carburetor and the manifold; (8) using improper bolts and screws to mount the carburetor to the manifold; (9) using a rubber hose instead of a metal hose to connect the gasoline line; (10) using wire instead of clamps to attach gasoline line; and (11) stretching and reversing the accelerated return spring.

The jury found that the manner in which the carburetor was reinstalled by Hopkins constituted a material misuse of the vehicle and that such misuse was “a producing cause” of the occurrence in question. Misuse was defined as meaning “a use of the vehicle in which it is mishandled in a way which the manufacturer could not have reasonably foreseen or expected in the normal and intended use of such vehicle.”

General Motors argues that such findings bar Hopkins’ recovery as a matter of law and also that such findings are in such direct conflict with the jury’s findings of defective design and producing cause that the verdict will not support the entry of judgment for either party.

It is the duty of the courts to reconcile apparent conflicts in jury findings, if that can reasonably be done, and the findings should not be held irreconcilable unless when considered separately and taken as true, they would require the rendition of different judgments. Texas & P. Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280 (1959). In construing the findings in the instant case, we consider all of the issues together and are aided by all relevant evidence presented upon the trial. McDonald, Texas Civil Practice, Vol. 3, Sec. 15.06.1, p. 606.

We first note that the jury failed to find that the carburetor was defectively manufactured, but did find that it was defectively designed. It also found that the manner of reinstallation was “a producing cause” of the occurrence but it failed to find that this was the “sole producing cause.” The term “producing cause” was defined as an “efficient, exciting or contributing cause, which in a natural and continuing sequence, caused in whole or in part the occurrence . and but for said cause the occurrence . . . would not have occurred.” The jury was also charged that there might be more than one producing cause and only one sole producing cause. The jury failed to find that Hopkins voluntarily assumed the risk of the defective product with knowledge and appreciation of its defective condition.

In reviewing the record we find evidence from which the jury could have concluded that the choke rod was disconnected from the carburetor system at the time of the accident. There was also testimony that when the choke rod was disconnected the choke could be “blown open” under such circumstances that the lock-out pin could be positioned on top of the lock-out lever with the secondaries open. On the basis of this testimony, the jury could have decided that the disconnected choke rod was a contributing factor in the malfunction of the carburetor system.

We find no evidence that Hopkins was responsible for the burr on the end of the lock-out pin; nor, in our opinion, was there legally sufficient evidence that any of the other alleged alterations contributed to the defective functioning of the lock-out system. There was some testimony that improper replacement of the thermostatic coil cover might wedge the lock-out lever so that it would not be able to move out of the way of the lock-out pin, and that the use of a nail, instead of a cotter pin, in the main accelerator rod linkage, or the use of non-factory items such as gasket materials, bolts and screws, could cause the secondaries to become bound in the open position. However, we find no evidence that any of the alleged alterations (other than the disconnected choke rod) could have been a producing cause which, concurrently with the defective design of the lock-out lever, resulted in a failure of the lock-out system.

We may presume that the jury did not intentionally make conflicting findings on the issues of design defect and misuse. Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97 (1939). As we have stated, the jury could have determined that the choke rod was disconnected at the time of the accident and that this resulted from Hopkins’ carelessness in reinstalling the quadrajet carburetor. It could also have determined from the testimony that this condition facilitated the lock-out pin becoming positioned on top of the lock-out lever with the secondaries held open. Under the court’s charge and based upon the evidence before it, the jury could reasonably have concluded that there was both a design defect and a misuse of the product, each of which contributed to and was a producing cause of the accident. While, as stated above, the jury could have decided that Hopkins’ failure to connect the choke rod contributed to the occurrence, it could also have decided that the defective design of the lock-out lever created an unreasonable risk of harm to the user and that such defect was also a producing cause of the occurrence. Thus we hold that the jury’s findings on these issues are not in irreconcilable conflict. Exxon Corp. v. Butler Drilling Co., 508 S.W.2d 901, 904 (Tex.Civ. App.—Houston [1st], 1974, ref’d n. r. e.).

In the recent case of Rourke v. Garza, 530 S.W.2d 794, 799 (Tex.1975), the Texas Supreme Court stated:

“The determination of whether a product is defective must be made in light of the normal uses of the product; and where it is misused, strict liability does not apply. Helicoid Gage Division of American Chain and Cable Co. v. Howell, 511 S.W.2d 573 (Tex.Civ.App.—Houston [14th] 1974, writ ref. n. r. e.); McDeviit v. Standard Oil Company of Texas, 391 F.2d 364 (5th Cir. 1968); Restatement (second) of Torts § 402A, comment h (1965).”

The comment referred to in the Restatement is set forth below:

“h. A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling, as where a bottled beverage is knocked against a radiator to remove the cap, or from abnormal preparation for use, as where too much salt is added to food, or from abnormal consumption, as where a child eats too much candy and is made ill, the seller is not liable.”

The fact that a consumer does not use a defective product in the exact manner contemplated by the supplier or with the same degree of care as a prudent person will not preclude his recovery under the theory of strict liability where the product was defective when supplied. Shamrock Fuel & Oil Sales Co. v. Tunks, 416 S.W.2d 779 (Tex.1967); Pizza Inn, Inc. v. Tiffany, 454 S.W.2d 420, 424 (Tex.Civ.App.—Waco, 1970, no writ). There is no longer any doubt in our jurisdiction that contributory negligence is not a defense to an action based upon the theory of strict liability. Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974).

Section 402A, comment g, of the Restatement provides that in order for the section to be applicable the injured plaintiff must prove that at the time the product left the producer’s hands it was “in a condition not contemplated by the ultimate consumer which will be unreasonably dangerous to him.” The comment further provides that when a product is delivered in a safe condition, the producer is not liable if “subsequent mishandling or other causes” make it harmful by the time it is used.

In its charge to the jury the court instructed that the term “unreasonable risk of harm” meant that the product, as designed, threatened harm to persons using the product to the extent that it would not be placed in the channels of commerce by a prudent manufacturer aware of the risk involved in its use “and” to the extent that, as manufactured, it would not meet the reasonable expectations of the ordinary consumer as to safety. See Henderson v. Ford Motor Co., supra, at page 101. The jury found upon satisfactory evidence that the defective design of the quadrajet carburetor’s lock-out lever created an unreasonable risk of harm to the user at the time the product was delivered and that this defect, and not merely Hopkins’ manner of use, was a producing factor of the occurrence. The jury was at liberty to conclude from the evidence, under the instructions given by the court, that the accident would not have occurred except for the defective design of the lock-out lever and that this defect existed at the time the product left the supplier’s hands.

We believe the evidence supports the findings of the jury, implicit in its verdict, that General Motors was aware of the risk to the user involved in the design of its lock-out system and that such design would not meet the reasonable expectations of the ordinary consumer as to safety. Hopkins, therefore, met his threshold burden of proving the defective condition of the product at the time it left the hands of the producer, and the issue of subsequent mishandling became a question of causation. Dennis v. Ford Motor Co., 471 F.2d 733 (3rd Cir. 1973).

A product which is found to contain an unreasonably dangerous defect at time of delivery under § 402A, and which defect is a producing cause of injury to the user, may result in the producer’s liability under the doctrine of strict liability, even though some intervening act unanticipated by the producer contributes to the accident. In Bradford v. Bendix-Westinghouse Auto. Air Brake Co., 33 Colo.App. 99, 517 P.2d 406 (1973), the Colorado Court of Appeals, at page 413, stated:

“Section 402A does recognize a defense for the manufacturer where the consumer or user mishandles or misuses the product and thereby creates the dangerous condition. Primarily this defense is intended to protect the manufacturer from becoming an absolute insurer for all injuries arising out of the use of his product. The usual situation in which the defense will arise is where the product is being used in a way in which it was not intended to be used. However, a prerequisite for the defense is that the product must have been in a safe condition when it reached the user. If it was unreasonably dangerous at that time, the ‘intervening’ acts of the user can only be additional proximate causes making the two parties joint tort-feasors .
“Of course, the defect in the product must itself be a proximate cause of the plaintiff’s injury before the plaintiff can recover. The manufacturer could not be held liable simply because of the existence of the defect when the real cause of the accident was the conduct of the user of the product. Only in this sense can the manufacturer be relieved of liability due to the acts of the user or a third party.”

In the case before us the jury failed to find that Hopkins’ “misuse” in reinstalling the quadrajet carburetor was the “sole” producing cause of the occurrence. The quadrajet carburetor continued to function, notwithstanding the fact that the choke rod was disconnected, and there was testimony, including that of a General Motors witness who had worked as a Chevrolet dealer mechanic for 26 years, that it was not unusual for Chevrolet vehicles to be driven with the choke rods disconnected. According to this and other testimony, the jury could have decided that choke rods are not essential to the normal driving of the vehicle and that they may come loose or be left disconnected through regular servicing of the automobile.

Since the jury found only that Hopkins’ “misuse” of the product was a producing cause of the occurrence, and failed to find that such misuse was the sole producing cause, its finding of misuse does not, in our opinion and upon the facts of this case, preclude Hopkins’ recovery. Bradford, v. Bendix-Westinghouse Auto. Air Brake Co., supra; Hales v. Green Colonial, Inc., 490 F.2d 1015, 1021 (8th Cir. 1974).

If the user’s negligence or careless handling “plays some part” in but does not in itself create the condition which causes the accident, the supplier of a dangerously defective product may not be relieved of liability if in fact the defect is a producing cause of the occurrence. Henderson v. Ford Motor Co., supra; Pizza Inn, Inc. v. Tiffany, supra; Products Liability: “Alteration of Product After It Leaves Hands of Manufacturer or Seller as Affecting Liability for Product-Caused Harm,” 41 A.L.R.3d 1251, § 2. See also Frumer and Friedman, “Products Liability” (1975), Sec. 16A(4), pp. 3-352 et seq.; Noel, “Defective products: Abnormal Use, Contributory Negligence and Assumption of Risk,” 25 Vanderbilt Law Review 93, 96 (1972); 63 Am.Jur.2d, “Products Liability,” Sec. 136, pp. 143-5; Epstein, “Products Liability: Defenses Based on Plaintiff’s Conduct” (1968), Utah Law Review 267, 273.

In Findlay v. Copeland Lumber Co., 265 Or. 300, 509 P.2d 28, 30-31 (1973), the Oregon Supreme Court stated:

“. . . As we understand comment h, to Section 402 A, ‘abnormal’ use does not mean every instance of negligence, however slight, in connection with the use of the product. The product must be safe for ‘normal’ handling and consumption. Misuse, to bar recovery must be a use or handling so unusual that the average consumer would not reasonably expect the product to be designed and manufactured to withstand it — a use which the seller, therefore need not anticipate and provide for . . . ” [509 P.2d, at p. 31.]

The jury’s findings on the issues of defective design established, in our opinion, the “ultimate” and “controlling issues” in the case. McElwrath v. City of McGregor, 58 S.W.2d 851 (Tex.Civ.App.—Waco, 1933, writ dism’d). The trial court properly disregarded as immaterial the jury’s findings on the issues of misuse which established only a concurrent cause of the accident. See McDonald, Texas Civil Practice, Vol. 3, Section 15.06.5, pp. 612-615. We overrule General Motors’ points five through eight.

In its ninth point of error General Motors contends that the trial court erred in refusing to grant a new trial because “the jury committed misconduct that resulted in harm to the defendant.” While this point is so generally stated that it affords no basis in itself for review, we have decided to consider it based upon the argument presented thereunder.

General Motors contends under this point that the jurors committed misconduct by considering the effect of their answers to the special issues; by letting bias, prejudice and sympathy play a part in their deliberations; in considering the financial condition of the parties and discussing the percentage of judgment allocable to attorney’s fees; and by not allowing a member of the jury to change his vote after he had expressed a desire to do so. At the hearing of General Motors’ motion for new trial testimony was taken from eleven of the twelve jurors. It appears from this testimony that the jury selected its foreperson on Wednesday afternoon and after a reading of the court’s charge retired for that day. The next morning, a Thursday, the jury began to consider the issues in order and initially voted eleven to one to answer the first special issue that the carburetor was not defectively designed. After next answering the special issues relating to misuse and assumed risk, the jurors sent a note to the judge inquiring whether it was necessary that they answer the remaining issues pertaining to damages. The next morning, a Friday, the judge sent a note to the jury instructing them to answer all the issues and the jury then commenced their deliberations on the damage issues. After those issues were answered the jury returned its attention to the first special issue and after further discussion and deliberation voted ten to two to change their answer so that it read the carburetor was defectively designed. Several of the jurors testified to the effect that prior to the time the jury sent its note to the judge, and after the other issues had been answered, one juror made a statement to the effect that “poor little Robbie will not get any money now.” There was also testimony indicating that during a recess one of the jurors made a statement that General Motors had plenty of money and it was jokingly mentioned that General Motors could afford a big judgment by raising the price of each of its cars a dollar. Several of the jurors also testified that after the damage issue had been answered the statement was made that any recovery would be split between the plaintiff and his lawyers. While this and related testimony tends to show improper conduct on the part of several members of the jury, there was also testimony indicating that the verdict was not tainted by misconduct; that if such statements were made as related, they were only incidentally made within the hearing of one or two of the jurors and were made at a time and under circumstances which did not affect the course of the jury’s deliberations. Similarly, while there was testimony that one of the jurors, who held the deciding vote on the first special issue, had asked the foreperson to change his vote and that the foreperson had refused to make such change, there was also testimony that such juror merely asked that another vote be taken on the issue and when the foreperson refused to take another vote the juror made no further objection and subsequently signed his name to the verdict. Furthermore, the jury was polled by the judge after the verdict was presented and the juror in question affirmed to the judge that such was his verdict.

The evidence taken upon the hearing of General Motors’ motion for new trial does not conclusively establish that the jury designedly attempted to frame its answers to the issues so as to insure a recovery for the plaintiff. On the contrary, their findings with respect to the issues relating to misuse would tend to negate any such intent. The mere mention of the effect of an answer to one or more issues did not constitute such misconduct as to require a reversal of the judgment. Trousdale v. Texas & N. O. R.R. Co., 154 Tex. 231, 276 S.W.2d 242, 244 (1955); Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558, 561 (1949). Nor do we believe that the passing mention of attorney’s fees or of the parties’ financial ability to withstand judgment requires a new trial under the circumstances of this case. City of Fort Worth v. Estes, 279 S.W.2d 687, 689 (Tex.Civ.App.—Fort Worth, 1955, writ ref’d n. r. e.). The evidence presented on the motion for new trial was conflicting as to whether or not such misconduct did occur and in the absence of express findings we must presume that the trial court found all controverted facts in support of its determination that no misconduct occurred. We have examined the entire record, including all of the evidence presented upon the hearing of General Motors’ motion for new trial, and find no evidence of jury misconduct requiring reversal of the trial court’s judgment. Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969). General Motors’ ninth point of error is overruled.

Affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    SOUTHWEST BUILDING MATERIALS COMPANY, INC., Appellant, v. AD AMERICA COMPANY, INC., Appellee.
    No. 5533.
    Court of Civil Appeals of Texas, Waco.
    Feb. 19, 1976.

      Urban, Coolidge, Pennington & Scott, Michael D. Stewart, Houston, for appellant.
    Block & Kyle, Joe E. Kyle, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal from an order overruling a plea of privilege, and involves Subdivision 5, Article 1995 VATS.

Plaintiff Ad America sued defendant Southwest Building Materials, in Dallas County, on sworn account for $8652.23 materials sold and delivered to defendant.

Defendant filed its plea of privilege to be sued in Harris County, the County of its residence.

Plaintiff controverted alleging the suit maintainable in Dallas County under Subdivision 5, Article 1955 VATS.

Trial was before the court which after hearing overruled defendant’s plea of privilege.

Defendant appeals on 2 points contending: 1) the trial court erred in overruling its plea of privilege on the basis of Subdivision 5, Article 1995, because there was no evidence; and 2) insufficient evidence that the place of payment was Dallas County.

Subdivision 5, Article 1995 provides:

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

In the instant case the suit was upon sworn account. The invoice does not state the place of payment and is not signed by defendant, and was not introduced into evidence.

Plaintiff’s Vice President testified that defendant purchased one hundred thousand advertising brochures from plaintiff; that same were delivered to defendant in Houston; that at time defendant purchased the brochures defendant did business in Dallas County; that defendant agreed that it would pay for the material in Dallas County; and that plaintiff has not been paid.

The written document relied upon in a Subdivision 5 case must be proved. Thompson v. Republic Acceptance Corp., S.Ct., 388 S.W.2d 404. Plaintiff introduced no such writing. There is no evidence that defendant contracted in writing to perform an obligation in Dallas County.

Defendant’s point 1 is sustained.

The judgment is reversed and judgment here rendered transferring the cause to Harris County.

REVERSED AND RENDERED.


author: COLEMAN, Chief Justice.

text:
    ASKCO ENGINEERING CORPORATION et al., Appellants, v. MOBIL CHEMICAL CORPORATION d/b/a Mobil Chemical Company, Appellee.
    No. 16614.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 18, 1976.
    Rehearing Denied April 15, 1976.

      Adolph Uzick, Irving H. Weissman, Houston, for appellants.
    Vinson, Elkins, Searls, Connally & Smith, Raybourne Thompson, Jr., Houston, for ap-pellee.
   COLEMAN, Chief Justice.

This is a suit on a sworn account by Askco Engineering Corporation (Askco) against Mobil Chemical Corporation (Mobil) to recover the agreed purchase price of 276,317 pounds of scrap plastic. Mobil denied the account and alleged that it had accepted 110,212 pounds of the material and had rightfully rejected the balance. Prior to the institution of the suit Mobil had tendered a payment for the material which it had accepted and had returned the balance to Askco. Askco declined to accept the tendered payment and refused to receive the returned material. Mobil filed a counterclaim for the cost of warehousing, freight, loading and unloading expense and disposal charges. The case was tried to the court without a jury and judgment was rendered in favor of Askco in the amount of $21,510.28, the sum previously tendered by Mobil, less the sum of $14,079.65, found to be due to Mobil from Askco on the counterclaim. Prior to the trial Mobil had implead-ed Mr. San Sew Tsai, and alleged that he was the actual owner of most of the material in controversy. The court’s judgment was in favor of Askco and San Sew Tsai jointly and severally. Askco brings this appeal. The judgment is affirmed.

Askco contends that since this was a sale in bulk of used material, such material constituted one commercial unit, and that under the Texas Business & Commerce Code the acceptance of part of the material rendered Mobil liable for the entire purchase price. Askco also contends that under the provisions of the Texas Business & Com- ■ merce Code neither misrepresentation, mistake, or breach of warranty is a defense to an action for the payment of the purchase price where the material purchased was scrap and second hand goods and the purchaser examined the goods prior to entering into the purchase contract.

The evidence establishes that a purchase order dated April 5, 1974, issued and signed by Robert S. Feuer, an employee of Mobil, and signed by A1 Robbins, vice president of Askco, constitutes a contract of sale between Askco and Mobil. This purchase order describes the goods ordered as “approximately 250,000 pounds of bulk rolls of low density P.E. film in warehouse.” The testimony establishes that by the abbreviation “P.E.” was meant polyethylene. On the back of the purchase order under the heading “Conditions” are eleven paragraphs. Paragraph 1 provides:

“Seller . . . warrants that such product shall be free from defects in workmanship, material or design and shall conform to the description and specifications . . . ”
Paragraph 6 provides:
“Products purchased hereunder are subject to inspection and approval at Buyer’s destination. Buyer reserves the right to reject and refuse acceptance of products which are not in accordance with . Seller’s warranties (express or implied).”

Prior to the execution of the purchase order described above Mr. Feuer inspected the material on Askco’s premises. The contract agreement required Mobil to transport the material to its plant. The material was transported by truck to Mobil’s plant in Temple, Texas. This plant was specifically designed to reclaim low density polyethylene and reprocess it into plastic trashcan liners. Mobil attempted to process 45,000 pounds of the material and found that it would not break down properly causing holes in the film, air losses, and down time. It appears that none of this material was successfully processed. Askco was notified of the problems Mobil was having. Some of the material was received at the Temple plant on April 17, 1974. On May 18, 1974, Mr. Robbins went to Temple to discuss the problem. There was testimony that he agreed that Mobil should pay for the goods used and retained and return the remainder to Askco in Pearland, Texas. Thereafter Mobil shipped 166,105 pounds of the material back to Askco and tendered to them a check in the amount of $21,510.28 representing the agreed price of the goods retained. Askco refused to accept the returned goods and the check. The goods were sent back to Mobil and stored by Mobil in a rented warehouse in Temple from approximately June 1, 1974, until April 15, 1975. After the material was returned to Mobil samples representing approximately 75% of the material were analyzed. These tests revealed that only 13.7% of the samples were low density polyethylene. The remaining 86.3% of the samples were various other polymers such as ethylene vinyl acetate, medium density polyethylene, high density polyethylene, ethylene-propylene copolymers or blends, and other materials of varying chemical composition. By letter dated May 8, 1974, Mr. J. C. Birdsall, president of Askco, stated:

“In my first conversation with you, I described the available material as approximately 250,000 pounds of film. Most of this was low density polyethylene with some laminate material with various interlayers (some nylon and polypropylene) ...”

The evidence fully supports a finding that Askco expressly warranted the material purchased by Mobil to be low density polyethylene film, and that the material shipped to Mobil and received by them did not conform to the warranty.

Section 2.601, Texas Business & Commerce Code, provides that if the goods fail in any respect to conform to the contract, the buyer may accept any commercial unit or units and reject the rest. In a comment to the Uniform Commercial Code found in Vernon’s Texas Codes Annotated, Business & Commerce, Section 2.601, it is stated:

“A buyer accepting a non-conforming tender is not penalized by the loss of any remedy otherwise open to him. This policy extends to cover and regulate the acceptance of a part of any lot improperly tendered in any ease where the price can reasonably be apportioned. Partial acceptance is permitted whether the part of the goods accepted conforms or not. The only limitation on partial acceptance is that good faith and commercial reasonableness must be used to avoid undue impairment of the value of the remaining portion of the goods ... In this respect, the test is not only what unit has been the basis of contract, but whether the partial acceptance produces so materially adverse an effect on the remainder as to constitute bad faith.”

The crux of this case rests in a determination of what constitutes a “commercial unit” under the circumstances of this case. The term is defined in Section 2.105(f), Texas Bus. & Comm.Code, in these words:

“ ‘Commercial unit’ means such a unit of goods as by commercial usage is a single whole for purposes of sale and division of which materially impairs its character or value on the market or in use . . . ”

Askco contends that the entire bulk of the merchandise constituting the subject matter of the contract was a commercial unit. Section 2.606(b), Tex.Bus. & Comm. Code, provides that acceptance of a part of any commercial unit is acceptance of the entire unit.

There is evidence that the film was on large, medium and small rolls, some was loose, some was shredded, some was in boxes, and some was contained on a pallet of rolls. The original purchase order stated the quantity as “All film at Cermetco” and described it as approximately 250,000 pounds of film. The agreed price was not a lot price but was 19 cents per pound. There is testimony that while Mobil was engaged in moving the film from the Askco storage area, a truck load of additional film was added to the contract by Askco with the assent of an agent of Mobil. This film was purchased by Askco on a poundage basis. The trial court could reasonably have found that a pound was a “commercial unit” since it appears to be the unit used by the parties and since the evidence does not establish that a division of the material into such units would materially impair its character or value on the market or in use.

Section 2.602, Tex.Bus. & Comm. Code, provides that nonconforming goods must be rejected within a reasonable time after their delivery. It further provides that if the buyer has before rejection taken physical possession of goods he is under a duty after rejection to hold them with reasonable care at the seller’s disposition for a time sufficient to permit the seller to remove them. Section 2.604, supra, provides that if the seller gives no instructions within a reasonable time after notification of rejection the buyer may store the rejected goods for the seller’s account or reship them to him or resell them for the seller’s account.. Mobil elected to and did reship the goods to Askco, and on failure of Askco to accept such goods incurred additional expense in storing and testing the goods, and thereby acquired a security interest in the goods. Section 2.711, Tex.Bus. & Comm.Code. Mobil unsuccessfully attempted to sell the goods and incurred additional expense in disposing of them. There is no merit in appellants’ contention that the trial court erred in finding that Mobil rightfully rejected 166,105 pounds of the merchandise in question.

Section 2.602, Tex.Bus. & Comm.Code, in paragraph (b)(1) provides that after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller. There is evidence that the material could not be identified as low density polyethylene by visual or manual inspection. At the time Mobil rejected 166,000 pounds of the merchandise it knew that it was unable to reprocess the material and had identified a small amount of the material as being cellophane. Prior to the rejection of the material Mobil received a letter from Askco in which Mr. Birdsall stated:

“ . . . Most of this was low density polyethylene with some laminate material with various interlayers (some nylon and polypropylene) . . . ”

After Askco was notified that the goods were being rejected Mobil held the goods for a reasonable time for instructions from Askco. When no instructions were received Mobil elected to reship the goods to Askco as authorized by Section 2.604, Tex.Bus. & Comm.Code. There is no specific provision in the Code governing the action to be taken where returned goods are not accepted by the seller. Mobil elected to store the goods for the seller’s benefit for a period of one year. After that period the goods were carted off and buried. There is evidence that at that time the goods had no value.

This course of conduct on the part of Mobil does not constitute an exercise of ownership by the buyer within the meaning of Section 2.602, supra. After Askco refused to accept the returned goods, spectro-graphic tests made by Mobil identified some of the rejected material as being low density polyethylene which would conform to the contract. In view of the difficulty of identifying the various types of chemical compounds in the large mass of materials, Mobil was not required to “cull out” the conforming goods. Simmons Cohn & Co. v. Weil, 244 S.W. 562 (Tex.Civ.App.—Beaumont 1922, no writ hist.). Nor was Mobil required to again tender the goods to Askco. Seley v. Parker, 45 S.W. 1026 (Tex.Civ.App.1898, no writ history). The goods were worthless and Mobil could reasonably believe that Askco would again refuse to accept them. 67 Amer.Jur.2d, § 771.

Askco has relied in its brief upon certain sections of the Texas Business & Commerce Code relating to implied warranties. Since Mobil relies on breach of express warranties, these sections are not applicable. Neither did Mobil accept the goods by reason of V.T.C.A.Bus. & Comm. Code § 2.606(a)(1) providing that acceptance of goods occurs when the buyer after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity. Askco relies on the fact that Mobil’s representative inspected the material before the purchase order was signed, and attempted to use the material after it was delivered. While Mobil’s representative had an opportunity to see, scratch and crumble the material, the testimony establishes that such an examination would not enable the representative to determine whether or not the material was low density polyethylene. Making the goods available for such an inspection does not constitute a reasonable opportunity to inspect. Furthermore, the terms of the purchase order provided that the product was subject to inspection and approval at the destination and gave the buyer the right to reject and refuse to accept products which were not in accordance with the specifications.

Finally, Askco argues that pursuant to V.A.C.S. Article 2226, it should have been awarded reasonable attorney’s fees since it did obtain judgment in its suit on a sworn account for a part of the amount claimed. The judgment obtained was in the exact amount of the amount tendered to Askco prior to the institution of the suit, less the offset allowed by the court for warehousing, transportation, etc. The trial court properly denied the attorney’s fees. Johnny Morrow’s Wrecking Crew, Inc. v. Slate, 368 S.W.2d 32 (Tex.Civ.App.—Fort Worth 1963, writ ref’d n. r. e.).

By counterpoint Mobil alleges that Askco’s appeal is frivolous and seeks to recover 10% of the offset awarded by the trial court under Rules 435 and 438, Vernon’s Annotated Rules of Civil Procedure. We consider that substantial issues were raised by the appeal relating to the interpretation of the Texas Business & Commerce Code and, accordingly, refuse to assess the damages.

The judgment is affirmed.


text:
    JALCO, INC., Appellant, v. TOOL TRADERS, INC., Appellee.
    No. 16655.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 25, 1976.

      Marvin Schulman, Houston, for appellant.
    Lapin, Totz & Mayer, William A. Petersen, Jr., Houston, for appellee.
   COLEMAN, Chief Justice.

Tool Traders, Inc. sued to recover on an account from Jaleo, Inc. for the rental of equipment and the value of equipment rented by defendant but not returned. The trial was to the court without a jury and resulted in a judgment for the plaintiff.

Jaleo contends that the trial court erroneously entered judgment for rentals which were not placed in issue by the pleadings and that Tool Traders was not entitled to recover under the bailment contract for the value of a pump and certain hose which were not returned because evidence was produced that these items were stolen.

By Contract No. 64354 Jaleo leased from Tool Traders three gas water pumps, three suction water hoses, and three discharge water hoses. The contract provided that Jaleo would return to Tool Traders all articles rented in as good condition as received, ordinary wear and tear excepted. On March 4, 1974, Jaleo returned two water pumps and one length of suction hose to Tool Traders. The returned equipment was in a condition not acceptable to Tool Traders. Mr. Nichols, the president of Tool Traders, informed Mr. Boyles, the shop superintendent of Jaleo, of the repairs which Tool Traders would require and indicated that Jaleo could either repair the equipment themselves or make a cash deposit with Tool Traders sufficient to cover the cost of repairs. On the instruction of Mr. Boyles, the truck driver for Jaleo returned the pumps and hose to the shop for repair. Tool Traders continued the rental charges on the two returned pumps. One pump was returned on April 16, 1974, and the other on July 10,1974. Rentals were terminated on the respective dates of return.

The third pump was not returned. Mr. Nichols testified that he was told on January 30,1974, that this pump may have been lost. Tool Traders declared the pump lost on March 4,1974, and ceased charging rental on that date. The three suction hoses and the three discharge hoses were not returned, and Tool Traders ceased charging rental on July 10,1974. Jalco’s account was charged for the value of the pump and the hoses that were not returned. The rental agreement specified a definite daily, weekly, or monthly charge, and included an agreement that Jaleo would pay for repairs of all parts damaged by misuse, or for all other extraordinary damage done.

In its original petition Tool Traders alleged the execution of the leasing Contract No. 64354 and attached a copy as an exhibit. It alleged that Jaleo breached the contract in that part of the equipment was never returned to Tool Traders. It alleged that the rental on said equipment leased to Jaleo became due and Jaleo refused to pay same. Tool Traders alleged: “Pursuant to the terms of said lease, Plaintiff has been damaged in the amount of $5,708.42 as evidenced by the statement of account and invoices attached hereto as Exhibit ‘B’, which defendant has failed and refused to pay after many demands, together with attorney’s fees and interest as hereinafter alleged.” Its prayer was for judgment in the sum of $5,708.42 plus interest, contractual attorney’s fees of $556.26, possession of its equipment, costs of court, and general relief. Contract No. 64354, a delivery order referring to that contract dated April 15, 1974, noting the return of Pump No. U4742, and a delivery order referring, apparently by mistake, to Rental Contract No. 63354, dated July 10, 1974, noting the return of Water Pump No. U4829 and calling attention to the fact that three pieces of suction hose and three pieces of discharge hose had not been returned, were attached as Exhibit “A.” Exhibit “B” attached to the petition, consisted of two pages of a ledger having vertical columns for old balance, date, folio number, debits, credits, and balance. The numbers appearing under the folio heading appear to be the numbers of the various contracts for rental. The account begins on June 18, 1973, and concludes on July 10, 1974. Various contracts other than 64354 together with the appropriate debits and credits appear on these debit sheets. The final balance dated July 10, 1975, is $5,708.42. Included in Exhibit “B” is an original invoice referring to Order No. 64354, a rental ticket on the lost pump, an invoice for the value of the lost pump, an invoice for rental for the pump returned March 4, 1974, and a rental ticket for all pumps and all the hose for one month, each of which referred to Contract No. 64354.

Prior to trial Jaleo excepted to plaintiff’s petition for the reason that the account attached to the original petition contained items of debit and credit not referable to Contract No. 64354. These exceptions were overruled. At the trial Jaleo objected to all evidence concerning contracts, debits, or credits referable to contracts other than No. 64354. The objections were overruled, and the trial court rendered judgment in favor of Tool Traders for the balance due on the account which included charges due on various contracts other than 64354. At the trial Tool Traders offered Exhibit Nos. 1 through 19 which were received into evidence over the objection of Jaleo. Only Exhibit No. 2 related to the equipment covered by the rental Contract No. 64354. The objection that the instruments were extraneous and not covered by the pleadings should have been sustained as to all the exhibits except Exhibit No. 2. This was error on the part of the trial court. As a rule in a case tried before the court without a jury a reversal will not be required by reason of such an error since it will be presumed that the trial court did not consider such improper evidence. Here, however, the court entered a judgment in excess of the maximum amount which is supported by the evidence of the charges made by Tool Traders under Contract No. 64354. Under these circumstances we consider that the error in admitting evidence of charges referable to contracts other than 64354 was one that was calculated to cause and probably did cause the rendition of an improper judgment.

The fact that the ledger sheets exhibiting the full account between the parties was attached to plaintiff’s petition as a part of Exhibit “B” did not authorize the introduction of evidence supporting indebtedness due from Jaleo to Tool Traders other than those arising out of the Contract No. 64354 in view of the specific wording of the petition. This is a suit to recover for breach of contract and not a suit to recover other indebtedness which might be due to Tool Traders from Jaleo.

Jaleo also contends that the trial court erred in awarding damages for its failure to return one of the leased pumps. The contention is that there is evidence to prove that the pump was stolen and that Tool Traders neither alleged nor proved negligence on the part of Jalco. In Buchanan v. Byrd, 519 S.W.2d 841 (Tex.1975), the Supreme Court noted that where there is a bailment for mutual benefit, a rebut-table presumption of negligence arises and a prima facie case of liability is established by a bailor against a bailee upon proof that the bailed chattel was not returned.

The burden of proof on the whole case, including the issue of negligence, is on the bailor but where goods committed to a bailee have either been lost or been returned in a damaged condition, and the bailee’s liability depends upon his negligence, the fact of negligence is presumed, placing on the bailee the duty of producing evidence of some other cause of loss or injury. Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157 (1951).

Numerous Texas cases have held that mere proof of loss by fire or theft was sufficient to rebut the presumption of negligence notwithstanding the failure to prove causation or the exercise of due care on the part of the bailee. H. O. Dyer, Inc. v. Steele, 489 S.W.2d 686 (Tex.Civ.App.—Houston [1st] 1973, no writ history). In Buchanan v. Byrd, supra, however, the Supreme Court noted that the rule in Texas as applied in fire and theft cases is contrary to the weight and trend of modern authorities and should be “reexamined in an appropriate case.” The Court of Civil Appeals for the 14th District in Houston recently took the opportunity to reexamine this rule in Classified Parking Systems v. Dansereau, Tex.Civ.App., 535 S.W.2d 14, 1976, and noted its rejection of the fire and theft rule. That court stated that the bailee cannot discharge his burden of rebutting the presumption of negligence by showing only the bare fact of loss by fire or theft; the bailee must show its own lack of negligence before the presumption can be rebutted. The court further stated that where the presumption of the bailee’s negligence was not destroyed by proof that the car was stolen there was no necessity for the bailor to plead negligence.

The testimony in this ease reflects that the pumps rented to Jaleo were used at a subdivision called Diamond Head. The subdivision had guard gates and patrols. Mr. Boyles, Jalco’s shop supervisor, testified that he was directed to locate the pumps and was able to locate only two of them. He said that the other pump was reported stolen and it was stolen, “as far as we know.” This testimony is insufficient to rebut the presumption of negligence. The testimony is that the pump could not be found. As the Supreme Court stated in Trammell v. Whitlock, supra, Jaleo offered an “explanation which does not explain.” Since Jaleo failed to rebut the presumption of negligence, it was not necessary for Tool Traders to have plead negligence, or to have introduced evidence in support of such pleading, as a prerequisite to its recovery. Classified Parking Systems v. Dansereau, supra.

Jaleo complains that the trial court erred in permitting Mr. C. A. Nichols, Jr. to testify regarding the value of used water pumps in Harris County. Jaleo further argues that the record contains no evidence of market value on the date the pump and hose were “stolen.” Mr. Nichols qualified as an expert by testifying that as president of Tool Traders he was familiar with the reasonable prices in Harris County for water pumps of the type involved in the lawsuit. He stated that he purchased equipment of a same or similar nature. However, on cross-examination he admitted that he had never tried to buy or sell used pumps in Harris County; he reiterated that he had knowledge of the used pump market in Harris County.

Where a conversion by the bailee of the subject matter of the bailment is established, the bailor is entitled to recover the reasonable market value of the subject of the bailment at the time of the conversion. 7 Tex.Jur.2d, Bailment, § 63, pp. 766-767. Since the bailor will be compensated for the use of the pump by the agreed-on rental payments up to the date that he is notified of the loss of the property, his recovery of the reasonable market value of the pump as of that date will most nearly compensate him for the loss of his property.

One pump was declared lost by the parties on March 4, 1974. No rental was charged on that pump after that date. The bailor was entitled to recover the reasonable cash market value of that pump as of that date. Mr. Nichols testified that he purchased all equipment for Tool Traders and that he was familiar with the reasonable prices for pumps in Houston, Harris County, Texas, in 1974. He testified that he had an opinion as to the market value of the pump back in 1974 and that the value of the pump was $569.70. He further testified that he based this opinion on the replacement cost of the pump less depreciation. The replacement cost was determined by securing prices from various dealers as of January 30, 1974. There was no other evidence as to the reasonable cash market value of the pump. The lost pump was 23 months old. When asked if he had any knowledge of the used pump market in Harris County, Texas, Mr. Nichols testified: “I don’t know what you are speaking of.” He testified that he had never tried to buy and sell used pumps. He further testified: “If you are talking about the used pump market as you just mentioned, I don’t know that.” We sustain the appellant’s point of error that there is insufficient evidence to support the implied finding of the trial court on the issue of the value of the lost pump.

Jaleo has also objected to the implied findings of the trial court allowing rentals on the equipment from and after the date on which the equipment was tendered to Jaleo in a damaged condition. The Supreme Court of Texas has approved the rule stated in the Restatement of the Law of Torts, Vol. 4, Sec. 928, which provides that where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, he can “recover only the difference in its value before and after the harm, except that if, after the harm, it appears to be economical to repair the chattel, he can elect to recover the cost of repairs, together with the value of the loss of use during the repairs, or other losses which may have resulted during such time.” Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127 (1950). The evidence will support a finding that Jaleo elected to repair the damaged pumps rather than pay to Tool Traders the reasonable cost of such repair. Under those circumstances Jaleo was properly held liable for the rental accruing during the time the repairs were being made.

Jaleo complains that the court erred in awarding attorney’s fees to Tool Traders. The rental agreement forming the basis of this litigation provided: “Lessee to pay an additional 15% as collection charge in case of default in payments whereby it becomes necessary for the Lessor to place in the hands of an attorney for collection.” Jaleo further argues that the recovery should not be allowed for the reason that there is no testimony in the record regarding the reasonableness of the attorney’s fees. Such a contention was considered by the Supreme Court of Texas in Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960), where the rule was stated in these words:

“It is now settled that as between the legal owner and holder of a promissory note and those who are obligated to pay the same, the former is prima facie entitled to recover the attorney’s fees stipulated therein upon the happening of the contingency which makes the same payable. In the absence of an issue affirmatively tendered by the defendant, it is not necessary for the plaintiff to prove an agreement to pay such fee to an attorney or that the same is reasonable . . . ”

Jaleo failed to introduce any evidence which would support a conclusion that the contractual attorney’s fee was not reasonable. The point presents no error.

This case must be reversed and remanded to the trial court. In view of this action we find it unnecessary to consider the appellant’s points of error dealing with its special exceptions which the trial court denied since these matters will not likely occur on retrial.

Reversed and remanded.


author: BREWSTER, Justice.

text:
    G. C. WALTERS, Jr., et al., Appellants, v. James W. THOMAS, Appellee.
    No. 17706.
    Court of Civil Appeals of Texas, Fort Worth.
    March 26, 1976.
    Rehearing Denied April 30, 1976.

      Tom C. Ingram, Jr., Dallas, for appellants.
    Minor, Jester & Davidge, and T. Miller Davidge, Jr., Denton, for appellee.
   OPINION

BREWSTER, Justice.

This case involved the question of how much commission a real estate broker was entitled to in payment for services he rendered to a landowner in connection with a real estate sales contract.

James W. Thomas, the landowner, is the plaintiff. G. C. Walters, Jr., and Associates (a corporation), G. C. Walters, Jr., and Terry D. Fick are the defendants. The corporate defendant was in the business of auctioning real estate and the other two defendants were employees and officers of the corporation.

The undisputed evidence shows that: on April 16, 1974, the parties entered into a written auction contract (Px. 3) by the terms of which the defendant, G. C. Walters, Jr., and Associates, agreed to conduct an auction and there sell land located in Denton County that was owned by plaintiff; that pursuant to that contract an auction was held by defendants, the auctioneers, on May 17, 1974, and they obtained a bid of $125,000.00 for plaintiff’s land from Robert A. Nichols; following the auction Nichols and the plaintiff, Thomas, did on May 17, 1974, execute a real estate sales contract (Px. 1) wherein Thomas agreed to sell his land to Nichols for a purchase price of $125,000.00; at this same time Robert A. Nichols, the buyer, deposited with G. C. Walters, Jr., and Associates $12,500.00 as earnest money; G. C. Walters, Jr., and Associates had signed the real estate sales contract (Px. 1) as Escrow Agent; thereafter on May 23, 1974, the plaintiff, Thomas, deeded this same land to his banker named Walter Ray for a consideration of $130,-000.00; thereafter on May 25, 1974, Robert A. Nichols and the plaintiff, Thomas, executed a written agreement (Px. 2) by the terms of which they agreed to rescind the real estate sales contract (Px. 1) that they had entered into on May 17,1974. The real estate broker was not a party to this rescission contract and did not consent to it.

One provision of the April 16, 1974 contract (Px. 3) between the broker (auctioneer) and the landowner was as follows: “First party (landowner) agrees to pay second party 7% cash of the highest bid obtained on said property at time sale is consummated, and further agrees to make deed ... to any purchaser to whom second party (broker) may sell.”

That contract further provided: “If for any reason, First Party does not confirm the sale of his property or accept the highest offer obtained at, or as a result of, the auction, he agrees to pay $2,000.00 cash at the time he declines the offer or bid.”

Contained in the real estate sales contract (Px. 1) that was executed by the buyer, Nichols, the plaintiff, Thomas, and by the defendant, broker, as Escrow Agent, about thirty minutes after the auction, was the following provision: “9. COMMISSION: Seller agrees that the Escrow Agent is authorized to deduct from the purchase price a commission as agreed, $5,000.00 on closing and remit same to Auctioneer, or 50% of any deposit forfeited by purchaser in event of default.”

After Thomas and Nichols rescinded their contract for the sale of the land on May 25, 1974, the broker retained $5,000.00 of the $12,500.00 escrow deposit that Nichols had placed with him in connection with the real estate sales contract (Px. 1) and returned the remaining $7,500.00 of the escrow deposit to the buyer, Robert A. Nichols. The broker contended that he was entitled to the $5,000.00 as a commission.

When the broker refused to return this $5,000.00 to Nichols, the landowner, Thomas, paid the $5,000.00 to Nichols, thus making Nichols whole in so far as the $12,500.00 escrow deposit he had put up is concerned.

Thomas’ position is that the broker was entitled to a commission of only $2,000.00 for his services, because of the contract provision above quoted. Thomas (the landowner) then brought this action against the defendant (broker) to recover $3,000.00 of the $5,000.00 that the broker retained out of the escrow deposit that had been placed with him.

The trial court following a non-jury trial rendered judgment in favor of Thomas, decreeing that he recover from the broker the $3,000.00 sued for. This appeal is brought by the broker from that decree.

One of the trial court’s conclusions of law was as follows: “2. That the Defendants are not entitled to recovery because the condition entitling them to recovery, to-wit: closing or consummation of the transaction, never came to pass.”

We reverse and render.

The defendants have urged three points of error on this appeal. They are: (1) the trial court erred in concluding that the ap-pellee was entitled to judgment because the contemplated sale was never closed; (2) the trial court erred in rendering the judgment for appellee because there was no evidence to support it; and (3) the trial court erred in failing to render judgment for appellant because the evidence shows that appellant is entitled to judgment as a matter of law.

We sustain those three points of error.

In this case, after the auction was held by the broker, the landowner did accept the highest offer or bid that was obtained at the auction by the broker. This was evidenced by the fact that within about thirty minutes following the auction both the landowner and the highest bidder at the auction executed a real estate sales contract (Px. 1) for sale of the land involved to buyer for the amount of the highest bid, to-wit, $125,000.00. Because the landowner did accept the highest bid made at the auction, the provision above quoted in the auction contract (Px. 3) providing for the payment of $2,000.00 to the broker, if for any reason the landowner does not confirm the sale or accept the highest offer obtained at or as a result of the auction, has no application to the facts of this case. By its own terms that provision applied only in instances where the landowner did not confirm the sale of his land or accept the highest offer obtained at the auction.

We also hold that the fact that the contract between the parties (Px. 3) provided that the broker’s commission would be paid “at time sale is consummated” does not prevent the broker from being entitled to his commission under the facts of this ease.

The rules of law that control the outcome of this case are stated in the ease of West Realty & Investment Co. v. Hite, 283 S.W. 481 (Tex.Com.App., 1926), at page 481 as follows: “ . . when a broker employed to sell property has found a purchaser who is ready, able, and willing to buy at the price and upon the terms specified in the broker’s contract of employment, he has earned his commission, even though through some fault or inability of the owner the deal is never actually consummated. The rule extends even to those cases where the commission is to be payable only upon the consummation of the sale, if such consummation is prevented through the fault of the owner. The law will not permit the owner to deny to the broker his right to recover a commission where the broker himself has fully complied as far as possible, and where his only dereliction is produced entirely through the fault of the owner himself.” (Emphasis ours.)

Other cases that support the holding in that case are: Lattimore v. George J. Mellina & Co., 195 S.W.2d 250 (Tex.Civ.App., Fort Worth, 1946, no writ hist.); Don Drum Real Estate Company v. Hudson, 465 S.W.2d 409 (Tex.Civ.App., Dallas, 1971, no writ hist.), and Caneer v. Martin, 238 S.W.2d 828 (Tex.Civ.App., Waco, 1951, writ dism.).

It is true that the sale between Thomas and Nichols was never consummated and that the contract between the landowner and the broker provided that the commission agreed on was payable “at time sale is consummated.” It is also undisputed that consummation of the sale was prevented through fault of the owner.

As was held in the case of West Realty & Investment Co. v. Hite, supra, the rule of liability on the part of the landowners to the broker for the commission that is therein announced extends even to cases where the commission is to be payable only upon consummation of the sale, if such consummation is prevented through the fault of the owner.

On this point in 9 Tex.Jur.2d 833, Brokers, Sec. 68, the following is said: “Under a contract to pay a commission if the trade goes through, or any similar stipulation, the commission is payable when a binding sales contract is executed through the efforts of the broker, even though, through the fault of the principal, the trade is never consummated. Thus, the principal is liable for a commission where he wilfully refuses to close the deal, or to convey the property.”

And the broker in this case was not deprived of his right to a commission by the fact that the landowner, Thomas, and the buyer, Nichols, made the agreement between themselves by the terms of which they rescinded the real estate sales contract between them (Px. 1) without the broker’s consent. Elmen v. Winfield, 80 S.W.2d 343 (Tex.Civ.App., San Antonio, 1935, writ dism.), and Miller v. Carlson, 390 S.W.2d 64 (Tex.Civ.App., Texarkana, 1965, ref., n. r. e.).

We hold that under the authority of the above cited cases the defendant was entitled to retain the entire $5,000.00 out of the escrow funds as his commission, and that the trial court erred in rendering the judgment requiring him to pay $3,000.00 of it to the landowner. The broker here had found a buyer who was ready, willing and able to buy the land at a price suitable to the landowner and the owner and buyer had executed a sales contract relating thereto. The landowner later rendered himself incapable of performing this contract that he had entered into with Nichols by selling and conveying the land to Ray for a greater amount than he had contracted to sell it to Nichols for. Consummation of the contract with the buyer that the broker had procured was thus prevented solely through fault of the plaintiff, owner. Under these facts the broker was entitled to the entire $5,000.00 commission.

The judgment is reversed and judgment is here rendered in favor of defendants to the effect that plaintiff, Thomas, take nothing by his suit as against them.


author: SPURLOCK, Justice.

text:
    B. L. NELSON & ASSOCIATES, INC., Appellant, v. The CITY OF ARGYLE, Texas, Appellee.
    No. 17707.
    Court of Civil Appeals of Texas, Fort Worth.
    March 26, 1976.
    Rehearing Denied April 30, 1976.

      Greenberg & Bach and Robert M. Green-berg, Dallas, for appellant.
    Shirley W. Peters, Denton, for appellee.
   SPURLOCK, Justice.

This is an appeal from a summary judgment granted defendant, The City of Argyle, Texas, in a suit brought by B. L. Nelson & Associates, Inc., plaintiff, on an express contract for engineering services rendered.

The grounds for the granting of the summary judgment is the cause of action is barred by the statute of limitations and the contract made the basis of this suit is void for the reason the City had no power to make the contract because of the effect of Article 11, Sections 5 and 7, of the Texas Constitution. Together these sections provide that no debt shall ever be created by any city or county unless at the same time provision be made to assess and collect annually a sufficient sum to pay interest thereon and the creation of a sinking fund of at least 2% thereon.

We affirm.

This suit was brought by B. L. Nelson & Associates, Inc. to recover sums alleged to be due it under the terms of a written contract entered into between the plaintiff and defendant on May 5, 1970. This contract was an agreement for engineering services to be performed by the plaintiff for the construction of a sanitary sewer collection and treatment facility. The five page contract summarized very generally details the services to be rendered by the engineer from the preparation of the preliminary plans to the advertising for bids, the acceptance of bids, the supervision of the construction work, and .the final acceptance of the project upon its final completion at some indefinite time in the future.

Section 3 of the contract provides for the payment of the engineering work at stated periods of time depending upon the nature of the work. The progress payments were to be made once each month. The basic services were to be paid in various proportionate amounts of the estimated construction cost, ranging from 0.9% to 8.9%. There are other provisions providing for the payment on an hourly basis for various classifications of services from surveying crews to the project engineer. Schedules per hour were listed in the contract.

The summary judgment proof offered by plaintiff indicates plaintiff is seeking a recovery of 1.3% of $415,156.00, which amounts to the sum of $5,397.03, plus $450.00 for attending three hearings. The $5,397.03 item is based upon a charge for the completion of Section 3.b.(l) of the contract which provides that the engineer will be paid for its preliminary report 1.3% of the preliminary cost estimate.

The City’s summary judgment proof consists of an affidavit signed by the City Secretary of the City of Argyle in which it is shown that the City had no funds on hand, nor under its control, to pay the consideration expressed in the contract; and the City had not levied a tax in an amount sufficient to pay the consideration at the time the contract was executed or at the time the affidavit was made in July of 1975.

The summary judgment proof also contains a statement that the statute of limitations has barred this cause of action.

It is, therefore, the contention of the City that the contract is void because of the provisions of the Texas Constitution, Article 11, Sections 5 and 7, which is noted above.

Plaintiff assigns two points of error to the effect that the court erred in holding that defendant was entitled to judgment as a matter of law and erred in sustaining defendant’s motion for summary judgment because there were material fact issues.

In Hudson v. Buddie’s Super Markets, Inc., 488 S.W.2d 143 (Tex.Civ.App., Fort Worth, 1972, no writ hist.) this Court stated:

“. . . where the point of error is itself a general one, it is only those particular grounds of error that are pointed out in the statement, argument and authorities under such point that are presented to the appellate court for review under that general point of error. (Citing authorities.) It is the particular error that must be pointed out rather than the error in general. .

“Those particular points of error that could have been pointed out and argued in the statement, argument and authorities under an appellant’s general point of error that are not in fact there pointed out and briefed are waived.”

Plaintiff in its statement, argument and authorities contends that the trial court erred in granting the summary judgment because it misapplied the law. Plaintiff acknowledges in its brief that “Numerous cases have held that agreements creating debt which does not comply with the constitutional provisions above cited are void for the City in question had no power to make the contract. City of Big Spring v. Ward [140 Tex. 609], 169 S.W.2d 151 (Tex.Com. App., 1943, opinion adopted).” In that case the City entered into a contract with engineers for them to perform practically the same services as in the case before us except the contract there involved was concerning the drilling of water wells and the construction of storage reservoirs in order to provide a water supply for the City. The engineer had done substantially all the work when the City terminated his services and employed other engineers. That court stated that the contract is void because of the effect of Article 11, Sections 5 and 7, of the Texas Constitution.

Plaintiff contends that the law therein stated, as applied to the facts in that case, is a correct statement of the law but does not control the disposition of the case before us because the contract here in question is not executory but rather has been performed. Plaintiff contends that since this portion of the contract has been performed plaintiff is entitled to recover for his services regardless of whether or not the contract itself is ultra vires. Plaintiff relies upon the authority of the City of San Antonio v. French, 80 Tex. 575, 16 S.W. 440 (1891). In that case the owner of a premises sued the city for rent for one year under the terms of a lease. The court held that the city council had not authorized the making of the lease and denied a recovery thereon but did allow a recovery on an implied contract covering the period of time the City actually used the premises. That case is clearly distinguishable from the case before us because the constitutional question before us was not there involved. Plaintiff also relies upon the authority of Sluder v. City of San Antonio, 2 S.W.2d 841 (Tex.Com.App., 1928, opinion adopted). In that case the City sought to avoid the payment for legal services rendered because the agreement to secure such services were made in violation of the city charter. This case is distinguishable for that reason.

It is our opinion that at the time suit was filed the contract was not an executed contract. In general an executed contract exists where nothing remains to be done by either party. An executory contract, in general, is one that is still unperformed by both parties or one with respect to which something still remains to be done on both sides. See 13 Tex.Jur.2d, “Contracts”, Section 8, p. 121, “Executed and executory contracts”, (1960 Rev.).

In Noel v. City of San Antonio, 11 Tex. Civ.App. 580, 33 S.W. 263 (1895, writ ref.) that court had before it a suit in which plaintiff sought recovery of the contract price for the construction of two furnaces to be used by the City for the destruction of city garbage. The City defended on the grounds that Article 11, Sections 5 and 7, rendered the contract void. Plaintiff then “. . . urged that the contract is an executed one, the furnaces having been built according to the terms of the contract, and equity and good conscience require that the city pay for them, although the contract was made in violation of the constitution.” In holding that the plaintiff was not entitled to recover under any theory of law that court stated: “The language of the above constitutional provisions (Art. 11, Secs. 5 and 7) is too plain to require explanation or construction, and too positive to admit of evasion. . . . We do not believe that the breach of such a contract can form the basis for any right of action. . . . The nonenforcement of the contract may be a hardship upon the appellant, but it is one that he brought upon himself. He voluntarily entered into a contract which he knew, or at least is charged with knowing, was unconstitutional and void, and has not placed himself in a position to obtain redress at the hands of the courts.”

In Toole v. First Nat. Bank, 168 S.W. 423 (Tex.Civ.App., Galveston, 1914, writ ref.) the court had before it a suit to recover $2,000.00, the face amount of a warrant issued by Sabine County in favor of D. A. Smith. This suit grew out of a contract between the County and Smith in which Smith contracted to drill an artesian well on the public square. The total consideration was $7,500.00. The County was to pay Smith, “When the derrick and machinery shall be put on the ground, $2,000; when the well shall be drilled at a depth of 500 feet, $1,000; when the well shall be drilled 1,000 feet, $2,000; and the balance to be paid when the well shall have been completed.” This suit was brought on a warrant issued for the completion of the first phase of this project.

That court stated: “A contract for permanent improvements, of the character provided for in this contract, executed when there are no existing or prospective funds derived from the general current revenues of the county available to meet the obligation imposed on the county by such contract is the creation of a debt within the meaning of the Constitution, and, when no provision is made for the payment of the debt, the contract is void. Constitution of Texas, §§ 5 and 7, art. 11; McNeal v. Waco, 89 Tex. 83, 33 S.W. 322; Terrell v. Dessaint, 71 Tex. [770], 771, 9 S.W. 593; Pendleton v. Ferguson, 99 Tex. 296, 89 S.W. 758; Howard v. Smith, 91 Tex. [8], 15, 38 S.W. 15; Tyler v. Jester, 97 Tex. 344; 78 S.W. 1058; Biddle v. City of Terrell, 82 Tex. [335], 336, 18 S.W. 691; Edwards County v. Jennings, 89 Tex. [618], 619, 35 S.W. 1053; Ault v. Hill County, 102 Tex. [335], 336, 116 S.W. 359; City of Tyler v. Building & Loan Co. (Tex.Civ.App.) 82 S.W. 1066; Peck-Smead Co. v. City of Sherman, 26 Tex.Civ.App. [208], 210, 63 S.W. 340; Mineralized Rubber Co. v. City of Cleburne, 22 Tex.Civ.App. 621, 56 S.W. 220; Corpus Christi v. Woessner, 58 Tex. 462.”

In the case of Stevenson v. Blake, 131 Tex. 103, 113 S.W.2d 525 (Tex.Com.App., 1938, opinion adopted) the court had before it a contract employing attorneys to sue officials for money allegedly due the County, and obligating the County to pay one-fourth of a recovery plus $3,000.00, $1,000.00 to be paid immediately, $1,000.00 in February, 1936, and $1,000.00 on termination of litigation. This contract was held void because it is in violation of the Constitution, Art. 11, Sec. 7.

In the ease of Mineralized Rubber Co. v. City of Cleburne, 22 Tex.Civ.App. 621, 56 S.W. 220 (1900, no writ hist.) the City of Cleburne made a contract with appellant to purchase from it 1,000 feet of rubber fire hose for the sum of $750.00, payable in three years. In that case appellant had filed suit to recover its hose and for the rent of same for six months. This was a fully executed contract. The court held that appellant was entitled to recover title and possession of its hose and the reasonable rental value thereof, but could not recover the contract price. The court then stated: “The contract under consideration comes directly within article 11 of our constitution, which prohibits the creation of a debt ‘unless provision is made at the time of creating the same for levying and collecting a sufficient tax to pay interest thereon and provide at least two per cent as a sinking fund.’ Our supreme court has uniformly held that the creating of such a debt by a city, without at the same time making provision for its payment, is void, and therefore not binding upon the city. McNeill v. City of Waco, 89 Tex. 83, 33 S.W. 322; Noel v. City of San Antonio, 11 Tex. Civ.App. 580, 33 S.W. 263; City of Terrell v. Dessaint, 71 Tex. 770, 9 S.W. 593. The contract being void and not binding upon the city, it follows that it is of no force as to appellant.”

Plaintiff contends that it would be unjust for the City to receive the benefits of the contract and not pay for those benefits. This is an argument that plaintiff is entitled to recover on the theory of quantum meruit or implied contract.

Plaintiff sued upon an express contract. He did not allege quantum meruit as an alternative ground of recovery. He elected to proceed to final judgment on the express contract and raised this point for the first time on appeal.

A party may seek relief in the alternative and may state as many separate claims as he has regardless of inconsistency. Rules 47, 48, T.R.C.P.

The prosecution of a suit to judgment is undoubtedly an election to pursue the remedy sought in that suit. Cantu v. Bage, 467 S.W.2d 680 (Tex.Civ.App., Beaumont, 1971, no writ hist.). See also 21 Tex.Jur.2d, “Election of Remedies”, p. 208, Sec. 10, “When and How Election Made— What constitutes election”.

In the City of Mission v. Eureka Fire Hose Mfg. Co., 67 S.W.2d 455 (Tex.Civ.App., San Antonio, 1933, writ dism.) plaintiff recovered a judgment on an express contract for the purchase price of fire hose it had sold to the city. The court held that the contract was void because it was not made in conformity 'with the Constitution, but allowed a recovery on an implied contract. On motion for rehearing judgment for plaintiff was reversed and judgment rendered for the City. The court there stated: “The petition having declared upon an express contract, appellee could not recover upon an implied contract, because the proof necessary to establish the latter is altogether different from that required to establish the former.”

It is our opinion, in the case before us, that since plaintiff brought his cause of action under an express contract, one in which it did not plead or urge any relief by way of quantum meruit and permitted a final judgment to be rendered, it elected its remedy and cannot now for the first time on appeal claim error of the trial court in granting the summary jugment because plaintiff could have, if he had so desired, brought his cause of action on the theory of quantum meruit.

By its last contention plaintiff asserts it was error for the trial court to grant the summary judgment on the theory that the statute of limitations had barred the cause of action because such plea of limitations had not been plead.

In order for a party to avail himself of the statute of limitations it must be affirmatively plead. Rule 94, T.R.C.P. Defendant did not affirmatively plead the statute of limitations and therefore such defense is not available to the City. Maher v. Gonzalez, 380 S.W.2d 764 (Tex.Civ.App., San Antonio, 1964, no writ hist.).

This point is sustained but does not require a reversal of the case because the contract is unenforceable.

Judgment affirmed.