author: CLAUDE WILLIAMS, Chief Justice.

text:
    Charles McDANIEL and Faye McDaniels Appellants, v. Sam W. PETTIGREW et al., Appellees.
    No. 18852.
    Court of Civil Appeals of Texas, Dallas.
    April 15, 1976.
    Rehearing Denied May 13, 1976.

      David J. White, Stalcup, Johnson, Meyers & Miller, Dallas, for appellants.
    Forrest Wm. Wagner, Pettigrew, Buckley & Wagner, Grand Prairie, for appellees.
   CLAUDE WILLIAMS, Chief Justice.

Charles McDaniel and Faye McDaniel appeal from a summary judgment denying them any relief against Sam W. Pettigrew, George V. Delk, and John E. Henry in an action for cancellation and rescission of a contract, notes, deeds of trust, and lien agreements in connection with the purchase and sale of real property. In their petition, under count one, the McDaniels sought cancellation and rescission of a contract to purchase a lot with a residence to be constructed thereon, notes, security instruments, and other instruments in connection with such contract, alleging violation of Tex.Rev.Civ. Stat.Ann. art. 5069-13.01, et seq. (Vernon Supp.1975), known as the Home Solicitation Act. In their alternative count two the McDaniels sought the same relief based upon alleged misrepresentations and failure to perform the contract in question. The trial court sustained the motion for summary judgment filed by Pettigrew, Delk and Henry, and the McDaniels appeal. We affirm in part and reverse in part.

The record is without dispute that Charles and Faye McDaniel had been previously married and divorced and then decided to remarry on October 3, 1973. Either shortly before or after their remarriage, the McDaniels contacted Pat Watson, a licensed real estate broker in Grand Prairie, Texas, concerning the purchase of a home. They selected Pat Watson because she previously had negotiated the purchase of another house by the McDaniels. As a result of this contact, Pat Watson showed the McDaniels a number of houses and lots including an unimproved lot located at 1409 Egyptian Street in Grand Prairie, Texas. This lot was owned by George Delk and John Henry, who were builders. Pat Watson had previously represented Delk and Henry in sales of homes built by them. She advised the McDaniels that Delk and Henry could build a house on the lot for the McDaniels. The McDaniels did not find a house plan which would suit their needs until Pat Watson showed them a set of plans on a home previously built by her husband. The McDaniels stated that they wanted a house built on the Egyptian Street lot to look just like the house built by Pat Watson’s husband, except proportionately larger. Pat Watson and the McDaniels went over the plans and specifications and made changes in accordance with the desires of the McDaniels. Pat Watson then contacted Delk and Henry and returned to the McDaniels and advised them that Delk and Henry would sell them the lot and build the house like they wanted for a sum of $65,-000.

On October 12, 1973, Pat Watson took a contract of sale between Delk and Henry, as sellers, and Charles McDaniel et ux, as purchasers, to the McDaniels’ apartment where Charles McDaniel executed it. McDaniel put up $3,000 as escrow deposit under the contract. On December 6, 1973, Pat Watson took to the McDaniels’ apartment a mechanic’s lien agreement and note for $70,000 to be executed by them to Delk and Henry so that the sellers could proceed with the construction of the house. Charles and Faye McDaniel executed both instruments at their residence. Construction on the house began about December 11, 1973. On January 14,1974, a new contract of sale was executed by Charles McDaniel as purchaser, and Henry and Delk as sellers. This contract was the same as the original contract executed on October 12,1973, with the exception that the McDaniels made a greater down payment and obtained a lower rate of interest.

The McDaniels were never informed of any right to cancel either of the two contracts or other instruments, and no type of notice of cancellation form was provided with any of these instruments.

The construction of the home was completed in April or May 1974, with the exception of a small amount of work to be done in a closet and the installation of some carpets in the front entry hall. When the sellers claimed the house was completed, the McDaniels went to the site and told Pat Watson that they refused to accept the house due to the failure of Delk and Henry to construct the same in a good workmanlike manner and in accordance with the plans and specifications agreed upon between the parties. Pat Watson informed Delk and Henry of the McDaniels’ statement.

When the December 6,1973, note became due on September 6, 1974, and the McDan-iels refused to pay it, Mr. Henry requested the McDaniels sign a renewal note and a deed of trust, both dated September 6,1974, stating that such instruments were needed in order to secure additional time to facilitate sale of the house to another party. Charles McDaniel testified that he told Mr. Henry that he would sign the renewal note, and Henry stated they would all work together to sell the house so that no one would lose any money. The McDaniels did sign the renewal notes and papers tendered by Mr. Henry. The McDaniels also allege in their petition that they signed the renewal obligations in reliance on a representation by Henry that such instruments would not be enforced against them. They contend that this representation was false because the sellers did intend to enforce them, and did post the property for foreclosure under the September 6,1974, deed of trust. The McDaniels originally filed suit for rescission and injunctive relief against the deed of trust foreclosure. The district court denied the application for temporary injunction and this court affirmed without written opinion. Consequently, Delk and Henry proceeded with the sale and purchased the property themselves on May 6, 1975. Since the bid for the property was insufficient to pay the debt, Delk and Henry filed suit on May 28, 1975, seeking a deficiency judgment against the McDaniels for an amount in excess of $42,000. This action is still pending.

The Home Solicitation Act

In their first seven points of error, appellants Charles and Faye McDaniel contend that the trial court erred in rendering summary judgment against them because the record reveals material issues of fact concerning violations of Tex.Rev.Civ.Stat.Ann. art. 5069-13.01 through 13.06 which would render the transaction in question void.

The statute is entitled “Home Solicitation Transactions — Rights and Duties of Parties” and was enacted by the legislature on June 11, 1973. The statute gives the consumer the right to rescind a home solicitation transaction as defined in the act; requires certain information and forms to be given to the consumer at the time of the transaction; provides rights, duties, responsibilities, and liabilities of merchants, consumers, and other parties involved in such transactions; and provides penalties for violations. Since no Texas court has construed this statute this is a ease of first impression. Although similar statutes have been passed by other states there is a paucity of decisions to guide us in construing the act.

A careful study of the statute in question leads to the definite conclusion that the legislature obviously intended to provide protection to customers purchasing goods, services, or realty in which the merchant or person acting for him engages in a personal solicitation of the sale to the consumer at the residence of the consumer. Stated more simply the act was designed to protect residential occupants from high pressure door-to-door salesmen and allow a “cooling-off” period within which the sales contract could be rescinded. The legislature clearly delineated the purpose of the legislation in § (5)(A) of the article by defining “Home solicitation transaction” as meaning:

[A] consumer transaction:
(A) for the purchase of goods . or services ... in which the merchant or person acting for him engages in a personal solicitation of the sale to the consumer at a residence and the consumer’s agreement or offer to purchase is given at the residence to the merchant or person acting for him . . [Emphasis added.]

It obviously centers attention upon the personal solicitation by the seller at the residence of the buyer. The next paragraph of the act, § (5)(B), deals with the purchase of realty at the consumer’s residence but specifically provides that “it does not include a sale of realty in which transaction the purchaser is represented by a licensed attorney or in which the transaction is being negotiated by a licensed real estate broker . .” [Emphasis added.] The remaining portions of the act are specific in providing that where the act is applicable the consumer has the right to cancel the agreement within three days; that the seller must furnish the consumer with a contract which contains a statement notifying him of his right to cancel; and that a violation of the act renders the sale void.

In arriving at our conclusions concerning the applicability of this statute to the facts presented to us, we are governed by the statutory admonition that we shall look diligently for the intentions of the legislature, keeping in view at all times the old law, the evil and the remedy. Tex.Rev.Civ.Stat.Ann. art. 10(6) (Vernon 1969). Under this article the provisions of the statute must be liberally construed with a view to affect their objects and that in arriving at the intent and purpose of the law it is proper to consider the history of the subject matter involved, the end to be attained, the mischief to be remedied, and the purpose to be accomplished. Magnolia Petroleum Co. v. Walker, 125 Tex. 430, 83 S.W.2d 929, 934 (1935).

With these rules to govern us we have concluded, and so hold, that the summary-judgment proof in this record demonstrates the inapplicability of the statute and, therefore, appellant’s contention of statutory violations must be overruled.

This transaction is one for the sale of realty. Since the transaction was negotiated by a licensed real estate broker, it falls directly within the exclusion of § (5)(B) of the statute. It is undisputed that Pat Watson was a licensed real estate broker who negotiated the transaction which resulted in the contract between the McDaniels and the builders. It is significant to observe that the real estate exclusion provision draws a distinction between a transaction where the purchaser is represented by a licensed attorney and one in which the “transaction is being negotiated by a licensed real estate broker.” The very wording of the statute indicates the intention of the legislature to place the real estate broker in a different category from an attorney representing one or the other of the parties. Although appellants argue that Pat Watson was the agent of Delk and Henry, we have found no evidence to support their contention. Here, a real estate broker was undoubtedly negotiating the transaction and, therefore, the exclusion is manifestly applicable.

Appellants attempt to avoid the effect of this real estate exclusion by contending that the contract made by them was not a realty contract but an agreement for services to be performed, that is, the building of a house. We cannot agree. An overview of the summary-judgment proof clearly demonstrates that what the McDaniels wanted was a home. This is not a case where a party previously owns property and executes a contract to have a house constructed. In one transaction, the McDaniels contracted to buy a lot upon which a house was to be built. The house, when built, would become a part of the realty since there was no agreement that it would remain personalty. Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 472, 474-75 (Tex.Com.App.1943, opinion adopted). In determining whether the improvements placed upon land constitutes fixtures or removable chattels, courts should determine whether there has been a real or constructive annexation, whether the article is adaptable to the use or purpose of the realty and whether it was the intention of the party making the annexation that the chattel should be a permanent accession to the freehold. Clark v. Clark, 107 S.W.2d 421, 424 (Tex.Civ.App.—Texarkana 1937, no writ), citing Hutchins v. Masterson & Street, 46 Tex. 551, 26 Am.Rep. 286, 288 (1877). The presumption is that the house is part of the land. Calvert v. Welch, 369 S.W.2d 840, 842 (Tex.Civ.App.—Texarkana 1963, no writ). When we apply these authorities here there is no question but that the parties intended that the house to be built upon the lot was to become a part of the realty.

Moreover, assuming arguendo that the realty exclusion does not apply, we do not agree with appellant that the contract of sale, notes, lien agreements, and other instruments sought to be canceled and rescinded in this litigation were executed as a result of a personal solicitation by the seller at the residence of the consumer as contemplated by the statute. The facts are undisputed that the McDaniels desired to buy a home and sought out the services of Pat Watson, a licensed real estate broker, to satisfy their desires. Thus the McDaniels were the ones who conducted the “solicitation.” While it is true that after a search for properties and negotiations leading to the construction of a home, the final draft of the contract, and related papers, were presented to the McDaniels for their signature at their place of residence, this does not fall within the prohibitive category of the Home Solicitation transaction because these are not acts of solicitation.

Giving the Home Solicitation Act the broadest and most liberal interpretation possible we conclude that appellants cannot claim a violation of the statute as a basis of cancellation and rescission of the instruments in question.

Our holding necessarily overrules appellants’ points eight and nine which are dependent upon the applicability of the Home Solicitation Act.

Common-Law Cause of Action — Misrepresentation

In their eleventh point of error, appellants argue that there existed a disputed issue of material fact as to whether Delk and Henry agreed that the deed of trust note signed September 6, 1974, would not be enforced against the McDaniels, and they seek rescission of the instruments because of the McDaniels’ reliance upon this misrepresentation. In their petition, the appellants alleged that Delk and Henry requested them to sign the September 6,1974, note and deed of trust upon the representations that such note and deed of trust were needed to secure additional time to facilitate the sale of the house and would not be enforced against the McDaniels. We overrule this contention. Where statements or representations are said to have been fraudulent but are in the nature of a promise of an act to be performed in the future, and not statements of existing facts, such statement cannot be legally said to be a fraudulent misrepresentation unless it is alleged and proved that at the time the statement or promise was made the person making the same did not intend to perform it. The mere failure to perform a promise is not of itself evidence of an intent not to perform. Rapid Transit Ry. v. Smith, 98 Tex. 553, 86 S.W. 322, 333 (1905); Morgan v. Box, 449 S.W.2d 499, 504 (Tex.Civ.App. —Dallas 1969, no writ); and Precision Motors v. Cornish, 413 S.W.2d 752, 756 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.). The summary judgment on this cause was properly rendered because the evidence failed to establish a genuine issue of fact as to the essential element of lack of intent on the part of the appellees to perform any promise which might have been made by them at the time of the execution of the instruments in question. For these reasons we overrule appellants’ point eleven.

Common-Law Cause of Action — Breach of Contract

In their tenth point of error appellants contend that the trial court erred in rendering summary judgment because there existed a disputed issue of material fact as to whether Delk and Henry failed to perform the construction of the house in a good and workmanlike manner and in accordance with the plans and specifications agreed upon by the parties. It is undisputed that in the contract originally signed by the parties Delk and Henry agreed to construct a three-bedroom, three-and-a-half bath, single-story, single-family brick veneer dwelling with double attached garage, covered patio, “all according to plans and specifications heretofore agreed upon.” The deposition testimony before the trial court reveals a number of instances in which Delk and Henry failed to construct a house in accordance with the plans and specifications. The house as built did not include archways in the front; a roof on one side of the house was much smaller than the other side; three windows were built in front of the house instead of four as agreed upon; no archways were provided in the dining room; and the windows in the entry hall and the planter underneath the windows were constructed other than as agreed. Furthermore, Charles McDaniel testified that the workmanship of the house was not of the quality agreed upon. Appel-lees do not question the existence of fact issues concerning the failure to build the house in accordance with plans and specifications but contend that they are immaterial because the only cause of action pleaded by appellants was for cancellation and rescission based upon misrepresentation and not upon material breach of the contract. We do not agree.

The rule is well settled that while the contract remains wholly executory — i. e., no part performance that would render such relief inequitable, a partial breach of a material part thereof is sufficient to authorize an equitable action for rescission, notwithstanding rescission will ordinarily be denied when there is an adequate remedy at law. Hausler v. Harding-Gill Co., 15 S.W.2d 548, 549 (Tex.Com.App.1929, jdgmt. adopted). While the contract remains wholly executo-ry the party has the option of requesting rescission or holding the adverse party to the contract and requesting damages. Greenwall Theatrical Circuit Co. v. Markowitz, 97 Tex. 479, 79 S.W. 1069, 1071 (1904); Cantu v. Bage, 467 S.W.2d 680, 682 (Tex.Civ.App.—Beaumont 1971, no writ).

The summary-judgment proof is conclusive that at the time the McDaniels refused to accept the house it had been completed, with a few minor exceptions. However, a disputed issue of fact exists as to whether the builders complied with the terms of the contract. Thus, the contract is not wholly executory. There has been performance to an extent that renders the relief of rescission inequitable. While the appellants did not seek damages or correctly plead breach of warranty or failure of performance of the contract, they did present summary-judgment proof which would create an issue of fact if pleaded. In such a situation our supreme court in Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233, 237 (1956) has held that a summary judgment is improperly rendered. It was there held that when a summary-judgment record discloses facts which show that an amendment to the pleadings of the opposite party will render the position of the moving party untenable under substantive law, it cannot be said that the movant has established his right to judgment as a matter of law, and summary judgment is, therefore, improper. Insurance Company of North America v. Cash, 475 S.W.2d 912, 913 (Tex.1971); Viracola v. Dallas International Bank, 508 S.W.2d 472 (Tex.Civ.App.—Waco 1974, writ ref’d n. r. e.); Nix v. Davis, 358 S.W.2d 225, 227 (Tex.Civ.App.— Houston 1962, no writ). In the light of this well-established rule of law we hold that appellees have failed to meet the burden imposed upon them to establish, as a matter of law, that there is no genuine issue of fact as to one or more essential elements of appellants’ cause of action. Farley v. Prudential Insurance Co., 480 S.W.2d 176, 178 (Tex.1972); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

The judgment of the trial court which denies relief to appellants on the basis of the Home Solicitation Act and misrepresentation is affirmed. The judgment is reversed and the cause remanded solely on the issue of breach of contract and damages.

Affirmed in part and reversed and remanded in part.

      . New York passed a home solicitation act which purpose is stated as follows: “The purpose of this act is to afford consumers, subjected to high pressure door-to-door sales tactics, a ‘cooling-off’ period.” N.Y.Pers.Prop.Law § 425 (McKinney Supp.1975). Two cases in the New York jurisdiction have interpreted this statute. In both cases the seller or his agents solicited the buyer at the buyer’s home either by mail or telephone requesting that salesmen be allowed to come to the buyer’s home. In these cases the court held the Home Solicitation Act was applicable. DeRouville v. E. F. G. Baby Products Co., 67 Misc.2d 508, 324 N.Y.S.2d 109 (1971), aff’d, 69 Misc.2d 252, 329 N.Y.S.2d 470 (1972), aff’d, 40 A.D.2d 736, 336 N.Y.S.2d 455 (1972); Lefkowitz v. E. F. G. Baby Products Co., 40 A.D.2d 364, 340 N.Y.S.2d 39 (1973). Arizona passed the Home Solicitation Sales Act, Ariz.Rev.Stat. §§ 44-5001 to 44-5008 (West Supp.1975), which is similar to the Texas statute. The Arizona Supreme Court has ruled that the statute regulating door-to-door sales is constitutional and not in violation of property rights so great as to outweigh the state’s right to protect its citizens. State v. Direct Sellers Ass’n, 108 Ariz. 165, 494 P.2d 361 (1972). Thirty-five other jurisdictions have passed different versions of the same type of legislation. Uniform Consumer Credit Code, 1 CCH Consumer Credit Guide ¶ 4770 (1976).


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    Lynda RANEY, Appellant, v. Robert RANEY, Appellee.
    No. 924.
    Court of Civil Appeals of Texas, Tyler.
    April 15, 1976.

      David P. Brown, Asst. County Atty., Henderson, for appellant.
    Glenn A. Perry, Wellborn & Houston, Gordon Wellborn, Henderson, for appellee.
   DUNAGAN, Chief Justice.

This appeal is from the dismissal of a child support action brought under the Uniform Reciprocal Enforcement of Support Act. The dismissal was based upon the pendency of a similar action between the same parties. We reverse and remand.

On May 17, 1973, Lynda Raney instituted Cause No. 73-153 against her husband, Robert Raney, in the Rusk County District Court. She sought a divorce, an equitable division of the property and custody and support of their two children. A temporary order was entered on June 6, 1976, which granted custody of the children, a boy 9 years of age and a girl 6 years of age, to Lynda and required Robert to make support payments of $125 per month. Lynda subsequently established a residence in Oklahoma with the children and Cause No. 73-153 was neither prosecuted to a final judgment nor dismissed. Subsequent to the temporary order. Robert, at Lynda’s request, went to Oklahoma and returned with the boy to Rusk County, Texas, with whom he was living at the time the order was entered.

On July 10, 1975, Lynda instituted an action in Oklahoma against Robert under that State’s Uniform Reciprocal Enforcement of Support Act, Title 12, Chapter 32, Oklahoma Statutes (1971). She alleged that he had refused or neglected to make child support payments since January, 1975. This action was transferred to the District Court of Rusk County, Texas, and entered as Cause No. 75-274. During the hearing and upon the motion of counsel for Robert Raney, the trial court dismissed this action because Cause No. 73-153 was still pending in that court. This appeal is from that dismissal.

When a court acquires jurisdiction of the parties and the subject matter of a cause of action, that court has the paramount right to dispose of the case even though another case, involving the same parties and subject matter, is subsequently filed in another court of concurrent jurisdiction. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974). The issue before this court is whether the Uniform Reciprocal Enforcement of Support Act has created an exception to this paramount right.

Section 21.04 states that all remedies provided in the Act are in addition to and not in substitution for any other remedies. Section 21.42 provides that no proceeding under the Act shall be stayed because of the existence of a pending suit for divorce, separation, annulment, dissolution, habeas corpus or custody proceeding. Neither section expressly governs the instant situation, but the purposes of Chapter 21 serve as guidelines for the construction of those sections. These purposes are to improve and extend the enforcement of duties of support. Section 21.02. Chapter 21 was designed to provide an economical and expedient means of enforcing support orders for parties who are located in different states or jurisdictions. Westphal v. Palmer, 480 S.W.2d 277, 278 (Tex.Civ.App.—Houston, 14th District, 1972, n. w. h.).

The Westphal case involved the effect of a final order for divorce and support upon a child support action instituted under Article 2328b-4, V.A.C.S., the predecessor of Chapter 21. The dismissal of the child support action was reversed pursuant to the court’s construction of that Act. Appellee would distinguish Westphal on the ground that it involved a final order, as opposed to a pending suit, for divorce and support. That reversal of the dismissal, however, was based in part upon the persuasive significance of section 21.42 which prohibits the stay of proceedings because of the existence of a pending suit. Westphal v. Palmer, supra, at 279. Moreover, the pendency of a child support suit in a federal court in Texas did not authorize the dismissal of a similar suit under Chapter 21 in Strader v. Strader, 517 S.W.2d 905, 908 (Tex.Civ.App.—Waco 1974, n. w. h.).

Appellee argues that the purpose of section 21.42 is to prevent a potential obligor from frustrating an anticipated Uniform Reciprocal Enforcement of Support action by filing, in his or her county, a proceeding involving the same parties and subject matter. This would force the party seeking support to prosecute that action as a counterclaim in the proceeding filed by the other party. Appellee contends that if Chapter 21 does create an exception to the general prohibition of the simultaneous maintenance of similar suits, that exception should be limited to instances in which the defendant in the Chapter 21 action filed the prior proceeding.

Such a limitation could have been, but was not, adopted in Strader v. Strader, supra. We are of the opinion that the broad purposes and remedial nature of Chapter 21 contemplate the pendency of one action filed in the county of the obli-gor’s residence along with another action subsequently filed in a different jurisdiction and transferred pursuant to the Uniform Reciprocal Enforcement of Support Act. This interpretation would aid, for example, a spouse who, after filing a support action, was forced by economic reasons to move to another jurisdiction. Such a spouse might well be unable to afford the dismissal of the prior suit.

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

      . Tex.Family Code Ann. Chapter 21 (1965); all subsequent statutory references are to this Act unless otherwise indicated.

      . The courts of other jurisdictions have construed provisions similar to these sections to permit the maintenance of a U.R.E.S.A. action despite the existence of a prior or pending divorce suit. See Nelson v. Nelson, 17 Ill.App.3d 651, 308 N.E.2d 132, 135 (1974); Paul v. Paul, 439 S.W.2d 746 (Mo.1969).


author: McKAY, Justice.

text:
    Kathleen Janeba JOHNSON, Appellant, v. William Foster JOHNSON, Appellee.
    No. 921.
    Court of Civil Appeals of Texas, Tyler.
    April 15, 1976.
    James R. Lewis, John Trube, Trube & Tatum, Tyler, for appellant.
    Dale Long, Tyler, for appellee.
   McKAY, Justice.

This is a child custody case.

Appellant, Kathleen Janeba Johnson, and appellee, William Foster Johnson, are the parents of two minor children aged 9 and 11 years, respectively. Appellant was divorced from appellee by decree dated September 10, 1975. Trial was to the court without a jury and no findings of fact or conclusions of law were requested or filed. The court’s decree dissolved the bonds of matrimony, divided the property of the parties, and awarded custody of the children. The decree states, “The Court finds that the best interest of the children will be served by appointing William Foster Johnson as managing conservator . . . .” Accordingly, appellee was appointed managing conservator of the children, and appellant was appointed possessory conservator with specified rights of possession and visitation. Appellant complains only of that portion of the decree concerning custody of the minor children.

Appellant’s points three through five assert that the trial court erred in impliedly finding that appellant was not a fit person to be managing conservator of the minor children, that the evidence is factually insufficient to support such an implied finding, and that such an implied finding is against the overwhelming weight and preponderance of the evidence. There is no basis for appellant’s assertion that the trial court made such an implied finding. There is no express finding that appellant was not a fit person to be managing conservator. Moreover, an award of custody to the father does not necessarily imply that the mother was unfit to have custody of the children. Adams v. Adams, 519 S.W.2d 502 (Tex.Civ.App.—El Paso 1975, no writ). Points three through five are overruled.

Appellant’s points one, two, six and seven allege in substance that the court abused its discretion in appointing appellee managing conservator rather than appellant. We disagree. Appellant argues that the court used the wrong tests in determining who should be appointed managing conservator and that the court allowed sympathy for appellee and antipathy toward appellant to have controlling weight in decreeing custody of the children.

Tex.Family Code Ann. sec. 14.07, makes it clear that in determining the question of managing conservatorship the best interest of the child shall always be the primary consideration of the court. Tex. Family Code Ann. sec. 14.01, provides that the court shall consider the qualifications of the respective parents without regard to sex of the parents in determining which parent to appoint as managing conservator.

It is well settled that the trial court is afforded a wide discretion in child custody cases, and the court’s judgment will not be reversed unless a clear abuse of discretion is shown. Ex parte Eaton, 151 Tex. 581, 252 S.W.2d 557 (1952); Adams v. Adams, supra; Lundstrom v. Lundstrom, 516 S.W.2d 705 (Tex.Civ.App.—Corpus Christi 1974, no writ); Gibson v. Hines, 511 S.W.2d 546 (Tex.Civ.App.—Waco 1974, no writ). Furthermore, the abuse of discretion must appear from the record as a whole before the judgment will be disturbed. Wilkinson v. Evans, 515 S.W.2d 734 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.).

There is testimony in the record reflecting favorably on each parent. Therefore, in examining the entire record we find testimony which supports the judgment of the trial court. Appellee testified that he loves the children. Appellant testified that appellee got along well with the children. Appellant also stated that prior to their separation appellee had been a good provider for the family. Appellee wants the children to attend church in the event he is awarded custody. The evidence shows that while the divorce was pending appellee took the children to a priest to determine if they were disturbed by the separation of their parents. Since the separation and while the children were temporarily in the custody of appellant, appellee spent as much time as possible with the children.

Appellee testified that he will hire a housekeeper to care for the children while he is at work. Furthermore, the paternal grandparents reside in the same town as the children and appellee. The children like their grandparents and the grandparents are readily available as babysitters. Appel-lee is finishing work on a graduate degree in marketing and finance. In addition, ap-pellee offers the children financial stability in that he has a ten per cent interest in a jewelry store owned by his parents. Appel-lee’s father testified that after appellee finishes his graduate study there is a position waiting for him at the jewelry store at a salary of one thousand dollars ($1,000.00) per month.

In view of the evidence summarized above, we are of the opinion that the trial court did not abuse its discretion in appointing appellee managing conservator of the minor children. Appellant’s points one, two, six and seven are overruled.

The judgment of the trial court is affirmed.


author: CADENA, Justice.

text:
    E_ S_, Appellant, v. The STATE of Texas, Appellee.
    No. 15519.
    Court of Civil Appeals of Texas, San Antonio.
    April 21, 1976.

      Antonio G. Cantu, San Antonio, for appellant.
    Ted Butler, Grim. Dist. Atty., Susan Spruce, Asst. Grim. Dist. Atty., San Antonio, for appellee.
   CADENA, Justice.

This is an appeal from an order of the Judge of County Court at Law No. 3 of Bexar County (identified in the remainder of this opinion as “Court 3”), purporting to sit as a juvenile judge, granting the State’s motion to modify disposition and revoking probation previously granted appellant, a juvenile. See Tex.Family Code Ann., art. 54.05.

Appellant asserts that the Judge of Court 3 lacks jurisdiction to hear cases involving juveniles.

Our Constitution enumerates the courts in which the judicial power of this State is vested, but empowers the Legislature to create other courts. Tex.Const. art. 5, § 1. In the exercise of the power to create additional courts, the Legislature has created six county courts at law in Bexar County.

Court 3 was created by Tex.Rev.Civ.Stat. Ann., art. 1970-30M, and the jurisdiction of such court is delineated in § 2 of that statute. The first paragraph of § 2 defines the criminal jurisdiction of Court 3 as being the same criminal jurisdiction vested in county courts having criminal jurisdiction, including appellate jurisdiction in all criminal cases appealed from justice and corporation courts. The second paragraph of § 2 clothes Court 3 with “. . . the same jurisdiction and powers in civil actions, . that are now or may be conferred by law upon . . . the County Court at Law No. 1, of Bexar County, Texas, and in the County Court at Law No. 2, of Bexar County, Texas, and the Judges thereof.”

Cases involving juvenile delinquents are classified as civil cases, and it is agreed that the second paragraph of § 2, which delineates the criminal jurisdiction of Court 3, does not clothe that court with power in juvenile proceedings. It is also conceded that County Court at Law No. 1 of Bexar County and County Court at Law No. 2, by express legislative declaration, lack jurisdiction in juvenile cases. Article 1970-301, Tex.Rev.Civ.Stat.Ann. It is, therefore, conceded that the power of the Judge of Court 3 to sit as a juvenile court is not granted by the first two paragraphs of § 2.

The first argument in support of the assertion that such Judge has jurisdiction in juvenile cases rests on (1) the designation of the County Court of Bexar County as the juvenile court by the Bexar County Juvenile Board; and (2) a certificate by the Judge of the County Court asserting his inability to act in juvenile matters and designating the Judge of Court 3 “as the Juvenile Court Judge to act for and in place and stead of the County Judge in all juvenile matters under Title 3 of the Family Code of Texas.”

Appellant raises no question concerning the potential jurisdiction of the County Court in juvenile matters, and does not challenge the validity of the order of the juvenile court designating the County Court as juvenile court. However, he asserts that the subsequent attempt by the Judge of the County Court to designate the Judge of Court 3 as juvenile judge cannot be given effect.

The efficacy of the attempt by the Judge of the County Court to clothe the Judge of Court 3 with juvenile jurisdiction depends upon the provisions found in the third paragraph of § 2 of Article 1730-301d. The relevant portions of such paragraph are as follows:

The Judge of the County Court at Law No. 3 of Bexar County, Texas, upon certification of the County Judge of Bexar County, Texas, because of conflicting duties, or absence or inability to act; or, upon the failure or refusal or such County Judge to act for any reason or cause, shall also be authorized and empowered to act for and in the place and stead of said such County Judge in any lunacy, probate and condemnation proceeding or matter, and also may perform for the County Judge of Bexar County any and all other ministerial acts required by the laws of this State of said County Judge of Bexar County, Texas, . . . . Provided, that the powers thus conferred on the Judge of the County Court at Law No. 3, of Bexar County, Texas, shall extend to and include all powers of the County Judge of Bexar County, Texas, except his powers and duties in connection with the transaction of the business of the County as presiding officer of the Commissioners Court, and in connection with the budget of Bexar County. (Emphasis added.)

The emphasized portion of paragraph 3 will be referred to, not accurately, as “the proviso.”

Assuming that the conditions specified in paragraph 3 are satisfied, the pertinent portions may be more simply stated as follows: The Judge of County Court at Law No. 3 shall also-have the power to act for the County Judge in any lunacy, probate and condemnation proceeding, and to perform for the County Judge any other ministerial acts required of the County Judge by law. Provided, that the powers thus conferred on the Judge of County Court at Law No. 3 shall include all powers of the County Judge, except his powers and duties as presiding officer of Commissioners Court and in connection with the county budget.

The first power granted clearly does not include the authority to act for the County Judge in juvenile matters, since the grant is expressly limited to lunacy, probate and condemnation proceedings. Nor is it contended that the second power granted, which is the power to perform ministerial acts, includes the power to sit as judge of the juvenile court. The power of the Judge of Court 3 to act in the place of the County Judge in juvenile proceedings must, therefore, be found in the proviso.

The State contends that the language of the proviso to the effect that the powers “thus conferred” on the Judge of Court No. 3 “include all powers of the County Judge” has the effect of clothing the Judge of Court 3 with the authority to exercise all powers vested in the County Judge, including the power to sit as juvenile judge. We are told that this interpretation is compelled by the statement found in many cases, including Ex parte Roloff, 510 S.W.2d 913, 915 (Tex.Sup.1974), to the effect that all parts of a statute must be considered together so that, if possible, effect is given to all parts. It is, of course, impossible to quarrel with such statement, since it does no more than remind us that in interpreting statements we consider every part of the statement, the context in which it appears, and the apparent intent of the person making the statement, including the purpose which he was seeking to achieve.

The statement that the powers “thus conferred” include all powers of the County Judge immediately triggers a search for the powers “thus conferred.” The phrase “thus conferred” suggests the presence of an antecedent to which it is referable. Absent such an antecedent, the words “thus conferred” are unnecessary and meaningless. It cannot be argued that the phrase, “powers thus conferred,” refers to the subsequent grant, in the same sentence, of “all powers of the County Judge.” Such construction would require that we be convinced that the Legislature, with great solemnity, has declared that “all powers of the County Judge shall include all powers of the County Judge.” The only sensible construction is that the phrase refers to powers granted in portions of the statute other than the proviso.

In their briefs, the parties restrict the effect of the proviso to paragraph 8 of § 2, and so shall we. The powers specifically enumerated in that paragraph are the powers, given certain conditions, to (1) act for the County Judge in lunacy matters; (2) act for the County Judge in probate matters; (3) act for the County Judge in condemnation matters; and (4) act for the County Judge in the performance of ministerial acts. The powers do not exhaust the jurisdiction of the County Judge since they do not include juvenile proceedings. A statement that the powers include all powers of the County Judge, if given the construction for which the. State contends, would then become a statement to the effect that the lesser includes the greater. If the Legislature intended that, given certain conditions, the Judge of Court 3 should be vested with all powers of the County Judge, it chose a singularly inartistic and cumbersome manner of expressing such intent.

The interpretation for which the State contends does not consider and give effect to all parts of paragraph 3. It ignores the phrases, “thus conferred.” It renders the words giving the Judge of Court No. 3 power to act in lunacy, probate and condemnation matters superfluous. It renders superfluous the language authorizing the Judge of Court No. 3 to perform ministerial acts for the County Judge. Insofar as the power-conferring language of the paragraph is concerned, the State would focus on and give effect to only some of the words of the proviso, casting all else into the limbo of unnecessary verbiage.

If the proviso is read together with all other parts of paragraph 3, and if effect is given to all parts of such paragraph, then the paragraph clothes the Judge of Court No. 3, under certain conditions, with all the powers necessary to enable him to act, in the place of the County Judge, in lunacy, probate and condemnation proceedings, and to perform ministerial acts for the County Judge. It does not empower the Judge of Court 3 to act for the County Judge in juvenile matters.

The next basis for the claim that the Judge of Court No. 3 may sit as juvenile judge rests on the fact that the Bexar County Juvenile Board formally designated Court No. 3 as the juvenile court for Bexar County. The State does not contend that the action of the juvenile board had the effect of enlarging the jurisdiction of Court No. 3 beyond the jurisdiction conferred on that court by the Legislature. But it is asserted that § 51.04(b) of the Family Code, which provides that in a county, such as Bexar, having a juvenile board, “. the board shall designate one or more district, criminal district, domestic relations, juvenile, or county courts or county courts at law as the juvenile court, . . .” operates as a legislative grant of power to county courts at law in such counties to sit as juvenile courts.

Our first juvenile court act vested jurisdiction of juvenile matters in the district and county courts. Tex.Laws 1907, ch. 65, § 2 at 138. In 1925 criminal district courts were added to the list of courts which might exercise criminal jurisdiction. Tex.Rev.Civ.Stat.Ann., art. 2329 (1925). In 1943 such jurisdiction was withdrawn from criminal district courts. Tex.Laws 1943, ch. 204, § 4 at 314. However, in 1945, the juvenile court act, Article 2338-1 (1943) was amended to restore such jurisdiction to criminal district courts. Tex.Laws, 1945, ch. 35, § 1 at 52.

In order to help prevent the confusion which might result from the fact that several courts were vested with juvenile jurisdiction, the Legislature in 1909 authorized the judges eligible to exercise such jurisdiction to select one of the eligible courts to handle all cases arising under the juvenile court law. Tex.Laws 1909, ch. 55, § 1 at 101-03. In 1943 the authority to designate the judge of juvenile court was lodged in the juvenile board in counties having such a board. Tex.Laws 1943, ch. 204, § 4 at 314. See Frey, The Evolution of Juvenile Court Jurisdiction and Procedure in Texas, 1 Tex. Tech.L.Rev. 209, 217-19 (1970).

An examination of the predecessors of § 51.04 of the Family Code reveals that statutory provisions for the designation of one court to sit as a juvenile court limited the choice of the designating authority to a selection from among courts to whom the Legislature had expressly granted jurisdiction over juvenile matters. For example, when the criminal district court was empowered, in addition to district courts and county courts, to hear juvenile delinquency cases, the statute expressly declared that county courts, districts courts, and criminal district courts “. . . shall have original jurisdiction in all such proceedings.” Article 2329, Tex.Rev.Civ.Stat. (1925). After criminal district courts were removed from the list in 1943, the Legislature, when it again vested such jurisdiction in criminal district courts in 1945, after providing that in counties having juvenile boards such boards may designate “. . . the County Court or one or more of the District Courts or Criminal District Courts to be the Juvenile Court or Courts for such county, .” added a paragraph specifically stating that the Criminal District Courts “. . . shall have the same jurisdiction, powers, authority and duties as is [sic] now or may be conferred upon District Courts in regard to such children.” Tex.Laws 1945, ch. 35 § 1 at 52. We do not construe § 51.04 of the Family Code as a grant of jurisdiction in juvenile matters to the courts there enumerated. Rather, it does no more than provide a procedure by which, in counties having more than one court otherwise empowered to act in juvenile cases, it will be possible to develop, within the existing jurisdictional framework, the expertise, knowledge, and skill in juvenile matters necessary to achieve the expressed purpose of protecting the best welfare of children and of society. See Tex.Family Code Ann. § 51.-04(e); In Re Cockrell, 493 S.W.2d 620, 624 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.).

Since neither Article 1970-301d, Tex.Rev.Civ.Stat.Ann. nor § 51.04 of the Family Code empowers County Court at Law No. 3 of Bexar County, nor the Judge of such Court, to act as the juvenile court for such county, the attempts of the County Judge and the Juvenile Board of Bexar County to clothe the Judge of County Court at Law No. 3 with the power to sit as juvenile judge were ineffective. The judge of County Court at Law No. 3 lacked jurisdiction to enter the order of which appellant complains.

The record reflects that the State’s motion to modify disposition and to revoke probation was filed in the 187th District Court of Bexar County, which undoubtedly has power to sit as the juvenile court. Therefore, we do not have before us a case in which the proceedings were initiated in a court lacking jurisdiction over the subject matter. That is, the problem here involves not lack of jurisdiction in the court in which the proceedings were pending, but lack of power of the judge of another court who attempted to exercise a jurisdiction which is not vested in him or in his court. Since it is only the action of the Judge of County Court at Law No. 3 which we have held to be of no effect, the proper order by this Court is simply one setting aside such void action, rather than an order dismissing the motion to modify disposition which was filed in the proper court.

The judgment appealed from is reversed and the cause is remanded to the juvenile court of Bexar County.

      . The term “County Court” refers to the county court mentioned in Article 5, § 1 of the Constitution, which is sometimes referred to as “the constitutional County Court” to distinguish it from county courts at law which are not mentioned in the Constitution.


text:
    Leon SHILLINGS et al., Appellants, v. MICHIGAN MILLERS MUTUAL INSURANCE COMPANY, Appellee.
    No. 918.
    Court of Civil Appeals of Texas, Tyler.
    April 22, 1976.
    Rehearing Denied May 20, 1976.

      Tom McLeroy, McLeroy & McLeroy, Center, for appellants.
    John L. Price, Fairchild, Hunt & Price, Center, for appellee.
   McKAY, Justice.

Appellants brought suit against appellee on an insurance policy for damage to a caterpillar tractor as a result of a tree accidently falling thereon. Trial was had before the court upon an agreed statement of facts, and the court rendered a take nothing judgment against appellants, from which they appeal.

The caterpillar tractor was used for clearing land and building stock ponds. In using the equipment in cutting large trees the operator causes the cutting blade of the tractor to be driven into one side of the tree at approximately one-half of the diameter thereof, then backs the tractor, disengaging the blade, and then drives the cutting blade into the remaining portion of the tree causing it to fall forward away from the tractor.

On the occasion in question the tractor’s cutting blade was initially driven into one side of a tree which, unknown to the operator, was hollow. When the tractor blade was withdrawn, the other portion of the tree trunk gave way, and the tree fell in the wrong direction onto the tractor causing damages of $2,083.90 to the tractor.

Appellants’ two points of error maintain that the trial court was in error in rendering a take nothing judgment because the agreed statement of facts conclusively shows that the damage to the tractor resulted from a collision within the meaning and terms of the insurance policy in question.

The policy is called an inland marine policy, and the policy provision in controversy was an attachment to and formed a part of Policy No. IMP9018 31 87, styled “Contractors Equipment Form.” The policy attachment or endorsement provides, in part, as follows:

“2. THIS POLICY INSURES AGAINST LOSS OR DAMAGE BY:
* * * * * *
(i) Collision, landslide or upset.
“3. THIS POLICY DOES NOT INSURE AGAINST:
sfc ⅜ * ⅝: * ⅜
(i) Incidental loss or damage due to operation of equipment * * * ”

The question presented is whether the tree falling across the tractor constitutes a collision within the meaning of the policy.

The policy does not define “collision”, so we must look elsewhere for the meaning. Webster’s Seventh New Collegiate Dictionary, p. 163 (1969), defines “collide” as “to come together with solid impact,” and “collision” is defined therein as an “act or instance of colliding.” Black’s Law Dictionary, p. 330 (4th Ed., 1968), defines “collision” as “striking together of two objects, one of which may be stationary. * * * act or instance of colliding; state of having collided.” Many automobile insurance cases have used definitions similar to Webster’s and Black’s in interpreting the collision clause. See 7A Words and Phrases pp. 264-269 and pocket parts pp. 45-47 and 15 C.J.S. p. 1. “The word ‘collision’ implies an impact, and imports a striking together, and may include any impact of one body with another.” 15 C.J.S. p. 2.

Since the word “collision” is not defined in the policy there is no restriction or limitation on its meaning. Our best guide seems to be to examine what our courts have said in construing the collision or upset clause in automobile insurance policies. It was held in Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379 (1951), that where an automobile was swept off a causeway across a river by flood waters, the force of the flood waters against the automobile was a collision within the meaning of the collision or upset clause.

In Great American Ins. Co. v. Lane, 398 S.W.2d 592 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.), it was held that the falling of a dragline bucket onto a truck it was loading with dirt constituted a collision within the meaning of the collision coverage of an automobile policy.

It was held in Calvert Fire Ins. Co. v. Koenig, 259 S.W.2d 574 (Tex.Civ.App.—Galveston 1953, writ dism’d), that where the tire of an automobile struck a rock in the road and caused the rock to strike the underside of the vehicle so as to knock a hole in the oil pan there was a collision. See Mercury Ins. Co. v. Varner, 231 S.W.2d 519 (Tex.Civ.App.—Eastland 1950, writ ref’d).

Both Lane and Koenig cited and relied upon the Proffitt case.

While we have found no Texas case directly in line with the facts of the instant case, there is a Louisiana case which had almost identical facts. In Bernard v. Houston Fire & Casualty Ins. Co., 81 So.2d 132, 54 A.L.R.2d 374 (La.Court of App. 1955, cert. den.), it was held there was a collision covered by an automobile insurance policy when a tree being sawed by workmen fell upon the automobile and the policy provided for loss “caused by collision of the automobile with another object.”

In Teitelbaum v. St. Louis Fire & Marine Ins. Co., 296 Ill.App. 327, 15 N.E.2d 1013 (1938), it was held that when a person jumped or fell from the third story of a building and landed on an automobile parked in an adjacent vacant lot the damage to the vehicle was caused by a collision.

It was held in Griffin v. Inter-Ocean Ins. Co., 244 N.C. 484, 94 S.E.2d 358 (1956), that when the cab of a truck struck a tree limb there was a collision. (See note 78 A.L.R.2d 1051).

In Jones v. Virginia Surety Co., 145 Mont. 440, 401 P.2d 570 (1965), it was held that since the word “collision” was not restricted or limited to a collision with any particular thing, the falling of a log onto a truck as it proceeded down the road was a collision where the log was felled by an employee of a logging contractor.

11 Couch on Insurance 2d Sections 42.190 through 42.195, sets out rules of construction for the term “collision” as applied to automobile collisions. In Section 42.193 it is said:

“In the majority of cases the term ‘collision’ has been defined broadly to mean striking together or striking against, the courts usually following some dictionary definition, which is taken verbatim from one or another of the leading dictionaries.
“By the dictionary definition, collision has been variously defined as—
“ — the act of colliding, and imports a striking together or against.
“ — the impact or sudden contact of a moving body with an obstruction in the line of motion.
“ — the act of colliding, a striking together, a violent contact, and implying an impact, the sudden contact of a moving body with an obstruction in its line of motion.
“ — the act of one object in suddenly coming violently into contact with another, in motion or standing.
“ — a meeting and mutual striking of two or more moving bodies, or of a moving body with a stationary one.
“ — a striking against something on or along the road.”

See Universal Service Company, et al. v. American Insurance Company of Newark, New Jersey, 213 Mich. 523, 181 N.W. 1007, 14 A.L.R. 183, 187 (1920); 23 A.L.R.2d 397.

Appellee contends that the facts show that damages to appellant’s tractor did not result from a collision within the meaning and terms of the policy, or, even if a collision within the meaning and terms of the policy did occur, such risk was not covered but rather specifically excluded by the policy under the facts. We disagree with ap-pellee’s contentions.

Appellee cites O’Leary v. St. Paul Fire & Marine Ins. Co., 196 S.W. 575 (Tex.Civ.App.—Beaumont 1917, no writ); American Automobile Ins. Co. v. Baker, 5 S.W.2d 252 (Tex.Civ.App.—Waco 1928, no writ); Glens Falls Ins. Co. v. McCown, 149 Tex. 587, 236 S.W.2d 108 (1951), and United States Ins. Co. of Waco v. Boyer, 153 Tex. 415, 269 S.W.2d 340 (1954), as supporting its contentions.

In O’Leary the second floor of a building used as a garage fell upon a car and damaged it as a result of a severe storm, and the court held there was no collision.

In Baker the policy insured plaintiff “against actual loss or damage to her automobile if caused, while the policy was in force, ‘by accidental collision with any other automobile, vehicle, or object.’ ” The car was damaged by hail falling upon it, and the court held there was no collision under the terms of the policy. The court said at p. 254, “ * * * In the usual and popular understanding of the term, a collision does not result, we think, from the force of gravity alone, especially when unaided by any human agency contributing thereto.”

In McCown the court was not concerned with the question of whether there was a collision.

In Boyer the court held that debris falling from a building damaged by a tornado onto a stationary vehicle did not constitute a collision with an object since the destruction of the automobile was due to windstorm. Companion case: Home Ins. Co. of N. Y. v. Cox, 153 Tex. 421, 269 S.W.2d 343 (1954).

We believe each of these cases is clearly distinguishable from the case here.

Appellee contends that even if there was a collision there is no coverage because the policy expressly provides that it does not “insure against * * * (i) incidental loss or damage due to operation of equipment * * Rule 94, T.R.C.P., provides that an insurer may not be allowed to raise an exception or exclusion to the insured’s claim unless such exception or exclusion is specifically alleged as an affirmative defense. T.I.M.E., Inc. v. Maryland Casualty Co., 157 Tex. 121, 300 S.W.2d 68 (1957); International Security Life Ins. Co. v. Powers, 458 S.W.2d 936 (Tex.Civ.App.—Amarillo 1970, writ ref’d n. r. e.). Appellee did not specifically plead the exception or exclusion it relies on in this court; however, this case having been tried upon an agreed statement of facts the pleadings are immaterial and all questions as to the sufficiency of the pleadings are waived under Rule 263, T.R.C.P. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945); Patton v. Wilson, 220 S.W.2d 184 (Tex.Civ.App.—San Antonio 1949, writ ref’d n. r. e.); 4 McDonald, Texas Civil Practice, Sec. 16.03.

In such a state of the record we must attempt to determine the meaning of “incidental loss or damage due to operation of equipment.” The policy does not define the words there used nor does it explain their intended meaning. Appellee argues that the terminology of the exception or exclusion is definite, clear and free from ambiguity. We disagree.

The agreed facts reveal that the normal usage of the caterpillar tractor was to clear land and build ponds, and that at the time the tree fell on the tractor such tractor was being operated in its normal and customary use of land clearing. Was the damage to the tractor “incidental loss or damage due to operation of equipment?”

“Incidental” is defined by Webster’s New Twentieth Century Dictionary, Unabridged, p. 922 (2nd Ed.1963), as “happening or likely to happen as a result of or in connection with something more important; being an incident; casual; secondary or minor, but usually associated; as, the incidental costs of education.” Black’s Law Dictionary, p. 904 (4th Ed.1968), defines “incidental” as “depending upon or appertaining to something else as primary; something necessary, appertaining to, or depending upon another which is termed the principal; something incidental to the main purpose.”

In 42 C.J.S. p. 520, “incidental” is described as “an adjective which has reference to something which is subordinate to, and dependent on, and follows the existence of another and principal thing, implying a real and, it may be, even a designed relation, but one which is secondary and nonessential, as incidental result or benefit, and incidental expenses * * * ”

Courts have defined the word “incidental” with a variety of terms such as accidental, casual, subordinate, occasional, accessory or collateral.

Soule’s Dictionary of English Synonyms, p. 280 (1959), also lists the words fortuitous, contingent, adventitious, extraneous, or nonessential as synonyms for incidental.

From the definitions above an interpretation could be made that the use of the word “incidental” in the policy was designed to exclude loss or damage caused by some secondary or subordinate use other than its normal and customary use. We cannot determine, however, whether the word “equipment” was intended to include the tractor itself since the policy lists the tractor as the “property” insured. In our opinion the language “incidental loss or damage due to operation of the equipment” is indefinite, unclear and ambiguous. Under appellee’s theory and argument it would appear that the provision in question would not cover any loss or damage to the equipment during its normal and customary use. We are unable, however, to determine the intent of the parties from the quoted language of the policy.

It should be pointed out that the word “incidental”, as used in the policy, is an adjective modifying the words “loss or damage”. If appellee’s argument is that the policy excludes loss or damage caused by incidental use of the tractor, then its position cannot be upheld because the language of the policy as so written does not clearly express such meaning.

Where a policy of insurance uses terms of doubtful meaning or where the language of the contract is ambiguous the contract will be strictly construed in favor of the insured and against the insurer. Royal Indemnity Co. v. Marshall, 388 S.W.2d 176 (Tex.1965); United Founders Life Ins. Co. v. Carey, 363 S.W.2d 236 (Tex.1962); Providence Washington Ins. Co. v. Proffitt, supra.

We are of the opinion that under a fair, reasonable and sensible construction of the policy, together with the generally accepted meaning of the word “collision” as defined by the courts and the lexicographers, the falling of the tree onto the tractor constituted a collision. We are of the further opinion that the claimed exception or exclusion is indefinite, unclear and ambiguous and, therefore, does not exclude appellant’s claim. Appellant’s points are sustained.

Judgment of the trial court is reversed and judgment here rendered for appellants for $2,083.90 and costs.


author: COLEMAN, Chief Justice.

text:
    Dee SELINE, Appellant, v. Pat BAKER et al., Appellees.
    No. 16683.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 22, 1976.

      Ducoff & Chanon, Bernard L. Chanon, Houston, for appellant.
    Lois Watson, Houston, for appellees.
   COLEMAN, Chief Justice.

This is an appeal from a temporary injunction restraining the defendant, Dee Se-line, from competing with a corporation, Meet Houston, Inc. The principal issue is whether the injunction issued complies with the provisions of Rule 683, Texas Rules of Civil Procedure. The judgment will be reversed.

On December 6, 1973, the plaintiffs, Pat Baker and Betty Cummings, purchased from the defendant 50% of .the stock in the corporation, and as part of the consideration for the purchase the defendant agreed that she would not be connected in any manner with any business under any name similar to the present name of the corporation, and for a period of three years after the closing she would not “in any manner directly or indirectly compete with the corporation or become interested in any competitor of the corporation which transacts business at any place within a 300 mile radius of Houston, Harris County, Texas.” She also agreed that she would not for a period of three years after the closing directly or indirectly participate in or be employed by any municipal or other convention council of any city or in any city within a 300 mile radius of Houston, Harris County, Texas.

Pat Baker testified that the covenant not to compete was designed to protect the business of Meet Houston, Inc. which was a total convention service. She testified that the corporation arranged ladies’ activities, children’s tours, tours for a total convention group, nighttime entertainment, special parties, airport transfers for groups, limousine service, motorcades, meetings, activities for the group and ladies’ hospitality room and special events. The corporation assisted in setting up meetings, furnished certain protocol services, and post-convention tours. She also testified that the corporation arranged for booths and information facilities at conventions, arranged hotel accommodations, and consulted with or acted as coordinator for group activities. These services were furnished for any type of group activities, not for conventions alone. She testified that in addition to the business activities conducted in Houston the corporation also operated in Dallas, had an assumed name certificate on file there, and that the reason for the 300 mile radius in the covenant was to protect the corporate activities in Dallas as well as in Houston. She testified that the business of the corporation required expertise in convention analysis and in matters of protocol. The defendant testified that at the time the corporation stock was sold all the corporation did was to arrange airport greetings and tours.

Ms. Seline testified that she was a meeting and convention analyst and furnished a protocol liaison service. She testified that she performed certain convention services, and that she was hired more or less as a staff member of the association, which she did not consider to be a convention job. She also testified that she did not consider her work in protocol liaison to be in competition with the business conducted by the corporation at the time she was connected with that corporation.

There is sufficient evidence to sustain a finding that Ms. Seline engages in some activities which are also engaged in by the corporation. It is not clear from the evidence whether the corporation engaged in all of these activities at the time the sale was consummated. While there is conflict in the testimony the trial court’s implied finding that the defendant engaged in some activities which indirectly competed with the business which the corporation conducted at the date the sale was consummated is supported by evidence of probative force.

As a general rule where an established business has been sold with its good will and there is a valid covenant not to compete, a breach is regarded as the controlling factor and injunctive relief follows almost as a matter of course. 43 C.J.S. Injunctions § 84, p. 566. In Weatherford Oil Tool Co. v. A. G. Campbell, 161 Tex. 310, 340 S.W.2d 950 (1960), the court stated:

“. . . According to the Restatement, a restraint of trade is unreasonable, in the absence of statutory authorization or dominant social or economic justification, if it is greater than is required for the protection of the person for whose benefit the restraint is imposed or imposes undue hardship upon the person restricted. The period of time during which the restraint is to last and the territory that is included are important factors to be considered in determining the reasonableness of the agreement

It is not necessary that one seeking to enforce such a covenant not to compete entered into in connection with the sale of a business prove the extent or probable extent of their damage by reason of a breach of the covenant. Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892 (1960).

In Justin Belt Co., Inc. v. Yost, 502 S.W.2d 681 (Tex.1974), the court recognized that restraints of trade unlimited as to both time and space are generally held to be unreasonable. It stated, however, that covenants containing such a restraint of trade were not void and beyond reformation in equity, but that they were not enforceable beyond a time or area considered reasonable by the court.

In Markwardt v. Harrell, 430 S.W.2d 1 (Tex.Civ.App.-Eastland 1968, writ ref’d n. r. e.), the court stated:

“Contracts not to compete are, by their nature, in restraint of trade and are not favorably regarded by our courts . To be enforceable they must contain stated restraints. Restraints not stated in the contract cannot be established by custom or inference . . . If a contract not to compete contains stated restraints they must be reasonable as to time and space . . . Such unlimited restrictions were unreasonable and not necessary for protection of Markwardt’s business. It follows that the agreement is either void or subject to judicial reformation . . . ”

A non-competitive agreement so extensive as to constitute an invalid restraint of trade may be modified in such a manner as to render the agreement reasonable. Thames v. Rotary Engineering Co., 315 S.W.2d 589 (Tex.Civ.App.-El Paso, 1958, writ ref’d n. r. e.).

Covenants in restraint of trade do not rest upon inference. The agreement will not be extended by implication and it will be construed in favor of rather than against the interests of the covenantor. Texas Shop Towel, Inc. v. Haire, 246 S.W.2d 482 (Tex.Civ.App.-San Antonio, 1952, no writ history); Houston Transfer & Carriage Co. v. Williams, 221 S.W. 1081 (Comm.App., See. A, 1920, holdings approved).

The covenant in question clearly states that the defendant agrees for a period of three fears not to compete with the corporation. The 300 mile territorial limitation is not applicable to this provision of the covenant unless by construction or inference. The territorial limitation cannot be added to this provision of the contract. The covenant is not for that reason void, and the trial court properly exercised his discretion in determining what would constitute a reasonable limitation as to territory-

The purpose of the covenant under consideration was to render effective the good will which the plaintiffs bought from the defendant. The good will inheres in the business, including the corporate name. An agreement not to compete with the corporation in any business which a corporation might desire to enter would clearly be unreasonable since the plaintiff could never know with certainty what type of business activity she might properly enter. In determining what reasonable restraints to impose upon the business activity of the defendant the trial court necessarily would need to know the activities pursued by the corporation at the time of the sale. His order should be framed in the language no broader than necessary to protect the business sold, and in language which would avoid restricting activity on part of the defendant which would not be prohibited under her agreement. Barrett v. Curtis, 407 S.W.2d 359 (Tex.Civ.App.-Dallas, no writ history).

The order from which this appeal is taken enjoined the defendant “. . . from competing with Meet Houston, Inc., a Texas corporation, within a one hundred mile radius of Houston, Harris County, Texas, and a one hundred mile radius of Dallas, Dallas County, Texas, or to do or perform any act which will cause Plaintiffs loss of business or business opportunities and that the term ‘competition’ shall extend to all business or business related activities encompassed by the Articles of Incorporation of Meet Houston, Inc., or reasonably within the scope of the corporate purposes set forth therein, until further Orders of this Court.”

Rule 683, Texas Rules of Civil Procedure, provides that every order granting an injunction shall be specific in terms and shall describe in reasonable detail and not by reference to the complaint or other document the act or acts sought to be restrained.

The order in question does not follow the provisions of Rule 683, supra, in that it does not set out in reasonable detail the act or acts sought to be restrained. It is further defective in that the reference to the Articles of Incorporation in the injunction was for the specific purpose of indicating the authorized activities of the corporation, and the scope of the injunction. This provision is a material part of the injunction, and the court erred in including it in his order. Rule 683, supra; City of Ft. Worth v. McDonald, 293 S.W.2d 256 (Tex. Civ.App.-Ft. Worth, 1956, writ ref’d n. r. e.).

The Articles of Incorporation were not introduced into evidence, and there is no showing that the business actually conducted at the time of the sale was coextensive with the power granted to the corporation by the Charter.

For the errors above pointed out the judgment entered by the trial court must be reversed. Under the facts of this case, it is practicable that an order be entered which would inform the defendant of the acts she is restrained from doing, without calling on her for inferences or conclusions about which persons might well differ and without leaving anything for further hearing as was recommended by the Supreme Court of Texas in Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871 (1948).

Reversed and remanded.


author: MASSEY, Chief Justice.

text:
    Carroll NELSON, Appellant, v. UNION EQUITY CO-OPERATIVE EXCHANGE, Appellee.
    No. 17719.
    Court of Civil Appeals of Texas, Fort Worth.
    April 23, 1976.
    Rehearing Denied May 21, 1976.

      Law Offices of Ralph W. Nichols, and J. Steven King, Fort Worth, for appellant.
    Cantey, Hanger, Gooch, Cravens & Munn, and R. Daniel Settle, and S. G. Johndroe III, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Union Equity Co-operative Exchange, as plaintiff, sued Carroll Nelson, as defendant, alleging damages by reason of Nelson’s failure to deliver 5,000 bushels of wheat @ $3.56 per bushel as promised orally. The oral transaction of agreement of sale and purchase had been followed immediately by written confirmation mailed by Union Equity to Nelson, as contemplated by the Uniform Commercial Code, Texas Business and Commerce Code, Sec. 2.201, “Formal Requirements; Statute of Frauds.”

Subsection (b) of Sec. 2.201 provides: “Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of Subsection (a) against such party unless written notice of objection to its contents is given within 10 days after it is received.”

In other words plaintiff Union Equity declared upon a cause of action which was good as against defendant Nelson if it established by proof and obtained finding of fact in accord that (1) Nelson was a “merchant” as applied to the particular transaction of oral agreement of sale and purchase, (2) that Union Equity did promptly after the making of the agreement mail its writing in confirmation to Nelson, (3) that Nelson received such writing in confirmation, and (4) that Nelson did not, within 10 days after receipt, give Union Equity a written notice of objection.

Trial was before the court without a jury. Judgment was rendered for an amount in damages in favor of Union Equity and against Nelson; followed by findings of fact and conclusions of law which purported to show that Union Equity had discharged its burden of proof and to obtain findings in its favor entitling it to judgment. Nelson appealed.

Judgment is affirmed.

The important question is whether the proof of Union Equity entitled the court, as the fact finder, to determine that Nelson was a “merchant” within the meaning and intent of Sec. 2.201 of the Code. We will, however, first make disposition of the points of error on other matters.

By these was contention of insufficiency in the evidence to support the conclusion of law that the written confirmation mailed by Union Equity constituted an enforceable contract, and of insufficiency in the evidence to support the findings of fact that there was in fact a receipt thereof by Nelson, pursuant to the mailing by Union Equity, or that there was sufficient proof of the mailing of such written confirmation of the oral agreement of the parties to entitle the court to infer receipt thereof by Nelson.

The instrument of confirmation by Union Equity reads substantially as follows: “Union Equity Cooperative Exchange, 806 Commerce Building, 307 West 7th Street, Ft. Worth, Texas, 76102: PURCHASE No. 2572: BOUGHT FROM: Carroll Nelson, 114 West Jackson, Mangum, Oklahoma, 73554: QUANTITY: 5,000 Bushels; COMMODITY & GRADE: # 1 Hard Winter WHEAT: PRICE: $3.56 per. bushel; PRICE BASIS: Delivered our Elevator Saginaw, Texas. . . . SHIPPING TIME: Deliver by August 31,1973; DRAW DRAFT THROUGH: We will mail check on delivery; REMARKS: Our Contract # 2572; CONDITIONS OF PURCHASE: We do not accept any liability (save for our negligence) if grain arrives otherwise than billing instructions. Please mail separate invoice on each car and draw draft, with bill of lading attached, on us at Ft. Worth, Texas, allowing sufficient margin to protect weights and grades. We reserve the right to cancel, extend time of shipment, or to fill here or elsewhere, at our option, any contract not filled within contract time, and any loss resulting therefrom to be paid by seller. This contract subject to all rules of the National Grain Dealers Association. CONFIRMING BUYER: Copeland SELLER: Nelson. DATE: August 1,1973. UNION EQUITY COOPERATIVE EXCHANGE, By_”

The foregoing was not the original instrument, which according to the evidence had been mailed to Nelson according to normal business usage and practice relative to mailing by Union Equity and would have been the instrument bearing signature. The copy which was produced bore the stamp of the home office of Union Equity in Oklahoma showing receipt of such copy by that office on August 2,1973. Evidence of the business usage of Union Equity was that such copy is mailed out to Oklahoma in the same mail by which the original goes to a contract seller, in the present instance to Nelson. Nelson testified that he did not receive the original of such instrument.

We hold that the instrument conforms to the provisions of Sec. 2.201 of the Code relative to notice to a contract seller by a contract buyer of the fact, and terms and agreement, of a contract sufficient to enable the seller to hold as bound the party named as the purchaser. Therefore, since the purchaser is bound by the terms thereof, if the instrument be proved to have actually been sent and received by the party to whom it was mailed it constituted a binding contract if further proof shows that it is enforceable by Sec. 2.201 of the Texas Business and Commerce Code as a transaction “between merchants.”

We hold that proof relative to handling and mailing by Union Equity in the usual course of business procedure at its office entitled the trial court, as the fact finder, to infer that there was proper mailing of a duly addressed and stamped envelope containing the same to Nelson, and that it was received by the addressee Nelson. Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854 (1942).

We will take occasion to mention that Nelson denied that he had ever orally agreed to make the sale to Union Equity. He admitted having called Union Equity on the date in question, but insisted that it was merely to inquire as to the price for which such a sale could be made, not to agree to make a sale. Further, Nelson denied that he had ever received the confirmation of Union Equity, and he presents the explanation for such reason, in part, his admitted failure to object to its terms. Nelson did make certain admissions relative to his actions which cast doubt upon either his veracity or his powers of recollection. In any event we have no doubt that Nelson did actually orally agree to be bound, by fact findings made that there was written confirmation by Union Equity, and by the law recognize that Nelson was properly held bound unless he is entitled to escape liability by the statute of frauds.

Here we reach the important question of whether the court, as the fact finder, was entitled to conclude that Nelson was a “merchant” within the meaning and intent of Sec. 2.201 of the Texas Business and Commercial Code. We take note that language thereof conforms to the Uniform Commercial Code adopted by most states, in particular those to which there will be later reference.

Texas Business and Commerce Code, Sec. 2.104, “Definitions: ‘Merchant’; ‘Between Merchants’; ‘Financing Agency’ ”, in part provides, as follows: “(a) ‘Merchant’ means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill, (b) . (c) ‘Between merchants’ means in any transaction with respect to which both parties are chargeable with the knowledge or skill of merchants.”

Under the comments noticed under the foregoing section, and as applied to sections specified, including Sec. 2.201, we note the following: “ . . . dealing with the statute of frauds, firm offers, confirmatory memoranda and modification rest on normal business practices which are or ought to be typical of and familiar to any person in business. For purposes of these sections almost every person in business would, therefore, be deemed to be a ‘merchant’ under the language ‘who ... by his occupation holds himself out as having knowledge or skill peculiar to the practices . involved in the transaction . . ’ since the practices involved in the transaction are non-specialized business practices such as answering mail. In this type of provision, banks or even universities, for example, well may be ‘merchants.’ ”

Cases relied upon by Nelson in his contention that the facts and circumstances proved in this case did not authorize the court to factually conclude that he was a “merchant” were Cook Grains, Inc. v. Fallis, 239 Ark. 962, 395 S.W.2d 555 (1965) and Loeb and Company, Inc. v. Schreiner, 294 Ala. 722, 321 So.2d 199 (1975). We observe in both cases that the trial courts had held that the defendant was not a “merchant” within the meaning and intent of the Uniform Commercial Code, and that the appellate court affirmed the trial courts.

In Cook Grains the court wrote: “There is not a scintilla of evidence in the record, or proffered as evidence, that appellee is a dealer in goods of the kind or by his occupation holds himself out as having knowledge or a skill peculiar to the practices of goods involved in the transaction, and no such knowledge or skill can be attributed to him.” That being true as applied to the record of the evidence in such case there would be no doubt that the Arkansas trial court was correct in its judgment. The burden of proof would in that case have been upon Cook Grains, Inc. to prove that Fallis was a merchant within the meaning of the Uniform Code, and absent a discharge of the burden of proof it would not have been entitled to prevail by its suit against Fallis. Actually the holding in Cook Grains fails to constitute useful authority for Nelson.

In Loeb the defendant was a cotton farmer. He acknowledged having received the written confirmation contemplated and provided by the Uniform Commercial Code, but he disregarded it and sold his cotton crop elsewhere. That he had done so and had failed to make delivery to plaintiff was the foundation of the suit for damages against him. The court held that the farmer, despite the fact that he might have held himself out as having knowledge or skill peculiar to the practices or goods involved, would, nevertheless, not be a “merchant” under the provisions of the code because as a farmer he did not solely by his occupation hold himself out as being a professional cotton merchant. Noted were the provisions of the Uniform Commercial Code that for a farmer to be included within the definition of “merchant” he must do one of the following: (1) deal in goods of the kind; (2) by his occupation hold himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction; or (3) employ an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.

Loeb does constitute authority for Nelson in the instant case for here we likewise have a case which turns upon the propriety of holding a person whose only sales of a commodity is of a crop of a certain kind which he has become experienced in marketing and as to which he has acquired familiarity with the customs and usages of what is termed forward contracts, i. e. the dealing in sales of commodities to be the subject of delivery at a future time.

Primarily Union Equity relies upon the case of Sierens v. Clausen, 60 Ill.2d 585, 328 N.E.2d 559 (1975). It was a case in which the trial court held for the defendant farmer, and the plaintiff prevailed upon the appeal. As will be hereafter noticed Illinois is the state in which there has been the greater amount of experience in the determination of proper application of the law to the exact question.

In that state we have been referred to the case of Continental Grain Company v. Harbach, 400 F.Supp. 695 (U.S.Dist.Ct., N.D.Ill., 1975) in which a like question had been presented. In the opinion written by the Federal Trial Court we find discussion and explanation with which we are in accord. In Harbach the court discussed the experience of Harbach in marketing the grain sold by him, his admission of understanding of forward contracts and knowledge that they are often made by telephone, with buyers confirming them in writing, etc. Observing that there were facts in evidence which suggested that Har-bach was claiming he was not a merchant in an effort to escape from a contract which hindsight proved unwise, the court continued to write, viz:

“Until very recently, the Illinois Supreme Court had not decided whether a farmer can also be a merchant under the Code. The Illinois appellate courts were split on the issue. Sierens v. Clausen, 21 Ill.App.3d 450, 315 N.E.2d 897 (3d Dist.1974) (farmer is not a merchant); Campbell v. Yokel, 20 Ill.App.3d 702, 313 N.E.2d 628 (5th Dist. 1974) (farmer is a merchant); Oloffson v. Coomer, 11 Ill.App.3d 918, 296 N.E.2d 871 (3d Dist.1973) (farmer is not a merchant).

“After all the briefs were filed (in the instant appeal) on the instant issue, the Illinois Supreme Court held that a farmer who sells his crops can be a merchant at the time of sale, reversing Sierens, supra. Sierens v. Clausen, 60 Ill.2d 585, 328 N.E.2d 559 (1975). In Sierens, the operators of a grain elevator brought an action against a farmer who allegedly breached two oral forward contracts to sell soybeans to the plaintiffs. Plaintiffs claimed that they had confirmed the oral contract in writing pursuant to the ‘merchant exception’ to the Code Statute of Frauds, and in accordance with the usual customs of the grain business. Plaintiffs further alleged that defendant was familiar with these customs. Defendant claimed that he was a farmer and not a merchant. The trial court held that defendant was not a merchant and dismissed the action. The appellate court affirmed, reasoning that the defendant farmer was only a ‘casual seller’ and was in the business of growing rather than selling grain. The Supreme Court reversed, resting on facts revealed in defendant’s answers to interrogatories. These answers showed that defendant had farmed for 34 years, had cultivated over 300 acres of corn and soybeans, and had sold his crops to grain elevators both under cash sales and futures contracts for at least five years. The court held:

“ ‘The practice of grain and soybean growers in selling their products in the manner described in plaintiffs’ amended complaint is well known and widely followed. We know of no reason why under the circumstances shown here the defendant, admittedly a farmer, cannot at the time of the sale be a “merchant.” ’ 328 N.E.2d at 561. This decision commands an appraisal of defendant Harbach’s circumstances to determine whether his experience and knowledge subject him to the obligations of merchants.

“At first glance, the circumstances of defendant Harbach seem remarkably similar to those of the defendant in Sierens. Both defendants had been farmers for many years. Both grew large amounts of corn and soybeans. Both were familiar with the customs and usages of cash sale contracts and forward contracts. Defendant, relying on the favorable opinion of the appellate court in Sierens, stressed the factual similarity between himself and the Sierens defendant farmer. (Brief for Defendant at 50).

“There is one factual difference between the two defendants which merits consideration. The Sierens defendant had sold the exact commodity involved in the disputed contract, soybeans, for five years. Defendant Harbach had only sold soybeans for a few months. Defendant urges that he lacked the experience in selling soybeans to be classified as a dealer in goods of the kind under the first part of the Code definition of merchant. Some decisions do suggest that length of experience may be a factor in determining whether a person deals in goods of the kind. Campbell v. Yokel, supra (farmer who sold for several years is a merchant); Fear Ranches Inc. v. Berry, 470 F.2d 905 (10th Cir. 1972) (rancher was not a merchant with respect to his first sale to a non-meat packer). Nevertheless, defendant’s lack of experience in selling soybeans alone is not enough to refute his status as a merchant. One reason is that defendant has failed to show that corn and soybeans are too different to be goods of the same kind. Both commodities are grain, and defendant is certainly a merchant as to sales of corn.

“We need not decide whether corn and soybeans are goods of the same kind because defendant is clearly a merchant under the second part of the Code definition, one who by his occupation holds himself out as having knowledge in the practice involved in the transaction. Defendant admitted he had sold large quantities of corn, as well as smaller quantities of potatoes and soybeans under forward contracts for five or six years. He admitted that he has traded on the Chicago Board of Trade and that he keeps up with market news. Nothing in any of the briefs indicates that the method of making forward contracts for corn differs in any respect from those for soybeans. These activities are surely sufficient to prove that defendant is a merchant.

“Defendant nevertheless claims that he never made an affirmative representation that he possessed skills as to selling soybeans. In view of his actual knowledge and business experience, no additional positive representation is necessary.

“Both parties debated whether anyone with general business knowledge, who can be expected to answer mail, should be a merchant for the purposes of the ‘merchant exception’ to the Statute of Frauds. See Uniform Commercial Code Comment to § 2-201. We need not resolve this question because defendant clearly had more than general business knowledge. He was familiar with the specific confirmation practices commonly used in oral forward contracts.

“Finally, defendant attempts to distinguish between growing soybeans and selling them. He claims that at best he was a merchant only with respect to growing soybeans. Even if it were possible to thus parse these two stages of commercial agriculture, our decision rests on defendant’s familiarity with the business practices involved, and not his knowledge of selling soybeans specifically.

“For the foregoing reasons, we hold that defendant was a merchant under the Code with respect to the oral contract he allegedly made with plaintiff on February 21,1973.

A holding like unto that of the Illinois Supreme Court in Sierens was made in the case of Ohio Grain Co. v. Swisshelm, 40 Ohio App.2d 203, 318 N.E.2d 428 (1973), a case in which the court commented upon the evidence showing that the farmer was familiar with the marketing of his product, had attended such for a considerable period, and that he was also familiar with farm markets and their operation and followed them with some care.

Noted in the case of Fear Ranches, Inc. v. Berry, 470 F.2d 905 (U.S.C.A. 10th Circuit, 1972) was the importance the court attributed to the experience of the cattleman seller to the specific transaction which was the subject of the suit. In that case apparently the seller, though experienced relative to sales to packers, was inexperienced in regard to sales to non-packers. On this the court wrote at page 907, as follows: “The record shows, and the trial court found, that defendants Berry had theretofore sold all cattle they raised or fed to packers; that the sale to Perschbacker was the first sale to a non-packer, and ‘was forced by financial difficulties.’ Thus this sale was the dealing in a different classification of stock than this cow and calf sale for resale. This was a sufficiently different type of business and type of goods than theretofore sold. This is a sufficient difference to support the trial court’s conclusion. . . . ” The trial court’s conclusion, referred to in the quotation, was that sellers of the cows and calves were not merchants under the Uniform Commercial Code as applied to their transaction of sale for resale.

In Campbell v. Yokel, 20 Ill.App.3d 702, 313 N.E.2d 628 (5th Dist., 1974) the court took occasion to discuss the ability of a knowledgeable farmer who acts as a merchant in selling his crops to practice fraud upon a purchaser to whom he had contracted to make delivery in the future if he is allowed, merely by reason of the fact that he is a farmer, to escape liability under the contract in the event a more favorable opportunity should appear while at the same time enabled to hold the purchaser to the contract exhibited by the “written confirmation.”

Every good reason exists for holding that the fact finder should be entitled to determine the question. In most instances where an ignorant, innocent, and inexperienced farmer fails to consummate a contract of the kind under consideration he will probably be protected by the finding made. In most instances where a knowledgeable and experienced trader who happens to be a farmer fails to consummate such a contract in order to take advantage of the purchaser, to the resultant loss by the latter in good faith reliance upon the commitment, the purchaser will probably be protected by the fact finder.

Only in the exceptional case would circumstances remove the responsibility for factual determination from the fact finder and require the holding that the farmer was not a merchant as applied to the transaction which is subject of a suit by a purchaser who believes himself protected by the law upon mailing the written confirmation of sale and purchase agreement. That before us on appeal is not such a case. Here the responsibility was devolved upon the fact finder. The evidence was sufficient to support the fact finding against Nelson in this case and therefore the judgment must be sustained.

Judgment is affirmed.