text:
    WAUSON AND WILLIAMS, ARCHITECTS, INC., successor by change of name to Concept & Image, Inc., Appellant, v. REEDER DEVELOPMENT CORPORATION, Appellee.
    No. 17131.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 17, 1978.
    Rehearing Denied Sept. 21, 1978.

      Lapin, Totz & Mayer, William A. Petersen, Jr., Houston, for appellant.
    Robert J. Barr, Houston, for appellee.
   COLEMAN, Chief Justice.

This is a suit on a sworn account brought by Wauson and Williams, Architects, against Reeder Development Corporation under Rule 185, Texas Rules of Civil Procedure. The plaintiff’s petition complied with the requirements of the rule. The defendant did not file a written denial, under oath, stating that each and every item is not just or true, or that some specific item or items are not just and true. The defendant admitted certain items of the account by referring to the invoice number, but with respect to other invoices listed by number the defendant denied having received or used the drawings or having obtained any benefit from the same and specifically denied the indebtedness. Four invoices forming a part of the plaintiff’s sworn account represented work done by the plaintiff under the terms of a written contract. The defendant contented that the work represented by these invoices was incorrect, incomplete and useless to the defendant. The defendant denied receiving any benefit from the plans and specifications produced by the plaintiff under the contract and specifically denied the indebtedness to plaintiff shown by the four invoices. The defendant also filed a cross-action against the plaintiff for damages.

The case was tried to the court without a jury. The court entered a judgment for the plaintiff in the amount of $1750.00 plus attorney’s fees and court costs, and rendered a take nothing judgment on the defendant’s cross-action. Findings of fact and conclusion of law were filed. The plaintiff appeals.

The defendant has failed to file a written denial under oath in the form provided by Rule 185, Texas Rules of Civil Procedure. It cannot dispute the receipt of the items or services listed in the account or the correctness of the stated charges. The defendant is entitled to assert defenses in the nature of confession and avoidance without filing a sworn denial if they are properly pleaded. Airborne Freight Corporation v. CRB Marketing, Inc., 566 S.W.2d 573 (Tex.1978); Glasco v. Frazer, 225 S.W.2d 633 (Tex.Civ.App.—Dallas 1949, writ dism’d).

With respect to the services rendered under the written contract the defendant does not deny that the services were rendered or that the charges stated are correct. It defends against these charges on the ground that a written contract between the parties required that the architects prepare drawings and specifications consistent with the restrictions and general architectural plan of the developer of a housing project and that the plans developed were incorrect, incomplete, and useless to the defendant.

This pleading properly invokes the defense of failure of consideration with respect to the plaintiff’s invoices number 9661, 9681, 9708, and 9741. New Trends, Inc. v. Stafford-Lowdon Company, 537 S.W.2d 778 (Tex.Civ.App.—Ft. Worth 1976, ref. n. r. e.).

The defendant has asserted failure of consideration with respect of invoices 9200, 9397, 9488, 9667, and 9668. With respect to these invoices the defendant denied receiving, using, or having obtained any benefit from certain drawings. While this pleading is verified, it is not an affidavit in the form required by Rule 185 or Rule 93(k), T.R.C.P. Airborne Freight Corporation v. CRB Marketing, Inc., supra; Goodman v. Art Reproductions Corp., 502 S.W.2d 592 (Tex.Civ.App.—Dallas 1973, ref. n. r. e.); Oliver Bass Lumber Co., Inc., v. Kay & Herring Butane Gas Co., Inc., 524 S.W.2d 600 (Tex.Civ.App.—Tyler 1975, n. w. h.).

The defendant’s pleading is insufficient to permit a contest to the plaintiff’s verified account insofar as they attempt to contest the charges relating to the residential services, plans and drawings in the amount of $2848.00. The testimony that these plans were not delivered to defendant cannot be considered because the defendant failed to file a proper sworn denial. The plaintiff was entitled to the recovery of this sum as a matter of law. Airborne Freight Corporation v. CRB Marketing, Inc., supra; DeWees v. Alsip, 546 S.W.2d 692 (Tex.Civ.App.—El Paso 1977, n. w. h.).

The trial court found that the plaintiff failed to comply with certain contractual provisions relating to the apartment project. The court further found that the plaintiff failed to substantially perform the architectural services required of it under the contract between the parties, but found the defendant received benefit by reason of the plaintiff’s work on the apartment project of a value in the amount of $1400.00. The court also found that the defendant made an initial payment to plaintiff in the sum of $500.00 as an advance payment under the contract. All of these findings are sufficiently supported by competent evidence.

In July 1973 Tom Shipp, a representative of the defendant, met with Richard Williams, a representative of the architects, to discuss the preparation of plans for a large apartment complex. Mr. Shipp testified that he delivered to Williams on that date a plat of the property on which the apartments were to be built and a set of deed restrictions applicable to the property. Mr. Williams denied that the restrictions were furnished to him. Other employees of the architectural firm testified that no restrictions were found in the working file and that they had requested Mr. Shipp to furnish restrictions and that he failed to do so.

Mr. Gaudin and Mr. Ramero did the preliminary drawing on the project. Each testified that he worked from a plan which contained a ten (10) foot set-back line. Preliminary drawings showing the ten (10) foot set-back line were prepared and submitted to Shipp and the developer. There was testimony that these were approved and the architects were authorized to proceed with the next stage of the drawings. There was testimony that the architects completed all necessary drawings and specifications required by the contract.

In October after all the drawings were completed the architects were informed that they were using the wrong set-back line and the plans could not be approved. The evidence established that the 10 foot set-back line was shown on the survey furnished the architects and that the restrictions containing the 40 foot set-back line were filed subsequent to the date of the survey.

The contract between the parties provided for a maximum fee. At the time the architects learned of the 40 foot set-back line the bills submitted for their services had reached this maximum fee. The architects then informed the defendant that in order to complete the work they would have to do considerable additional work and then that “a more involved set of services— would cost a little more money.” Mr. Shipp later notified the plaintiff that its services would no longer be used. He testified that the plaintiff requested a fee double the amount originally agreed upon.

Mr. Wauson, the architect in charge of the project, testified that the 40 foot setback line necessitated starting over from scratch in developing the second phase drawings. He refused to agree with the defendant that everything he had done was of no value and testified that some units could still be used and certain items as far as the style of the elevations and things of that nature would have been of value.

Mr. Ramero testified that the discovery of the 40 foot set-back line necessitated a rethinking of the project. A new market analysis would be required to determine whether or not the project would be economically feasible. It would be impossible to construct the project to Mr. Shipp’s density requirement using the plans which had been prepared. He testified that Mr. Shipp wanted him to continue under the old contract and redesign the project at the plaintiff’s cost. He testified that it would take about the same time they had spent on the project to redesign it and prepare construction plans using the 40 foot set-back line without undertaking a market analysis.

Mr. Shipp testified that he employed Mike Hall to re-work the preliminary plans which he had received from the plaintiff and that Mike Hall “charged a lot more than” $600.00 for reworking these plans.

The written contract between the parties recites that it is the intention of the owner to construct an approximately 350 unit apartment project on certain described property. It provides that the architects shall consult with the owner to ascertain the requirements of the project and shall confirm such requirements to the owner. It provides that the architects’ services shall be rendered in phases. In phase 1 the architect was to prepare schematic design studies consisting of drawings and other documents illustrating the scale and relationship of the project components for approval by the owner.

The trial court has found that the plaintiff failed to comply with that provision of the contract requiring confirmation to the defendant of the requirements of the project. There is evidence that the architect prepared schematic designs and studies which were approved by the owner and subsequently, after corrections were made, used by the owner. The trial court found that the defendant received benefit by reason of the plaintiff’s work on the apartment project of a value in the amount of $1400.00.

The contract also provides that if authorized the owner will pay for additional services in making major revisions in drawings, specifications, or other documents when such revisions are inconsistent with written approval or instructions previously given and are due to causes beyond the control of the architect. The trial court found that the building restrictions were given to the architect. The revisions caused by the failure to observe the 40 foot set-back line were not due to causes beyond the control of the architect. The trial court found that the plaintiff failed to substantially perform the architectural services required of it under the contract and thereby breached the contract. There is evidence to support this finding. The findings made by the trial court which have been discussed above are not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust.

The only affirmative defense plead by the defendant was failure of consideration. The burden of proof rested with it.

Since the evidence failed to show a total failure of consideration, but did show a partial failure, the defendant had the burden of furnishing evidence from which the trier of fact could determine the extent to which the consideration had failed. Gutta Percha and Rubber Manufacturing Co. v. City of Cleburne, 102 Tex. 36, 112 S.W. 1047 (Tex.1908); American National Bank of Houston v. American Loan and Mortgage, 228 S.W. 169 (Com.App., Section A, 1921, judg. adopted); Huff v. Speer, 554 S.W.2d 259 (Tex.Civ.App.—Houston [1st Dist.] 1977, ref. n. r. e.).

Plaintiff’s Exhibit 13 is an itemized statement of services performed in the preparation of the schematic drawing and other work required by phase 1 of the contract. The hours spent on this work billed at the contract rate amounts to the sum $3750.00. There is testimony that the defendant paid Mike Hall the sum of $1839.00 for revisions and correcting errors in the preliminary plans. There is no testimony that the revisions were made by reason of the failure to observe the 40 foot set-back line. The testimony is that the revisions and corrections were necessary for the proper presentation of a new loan application.

There is evidence that services were rendered to the defendant for which he had agreed to pay the sum of $25.00 per hour. The sworn account without more proves a debt greatly in excess of $1400.00. The trial court finding of a failure of consideration on the part of the plaintiff must be construed with its further finding that the defendant received benefit by reason the plaintiff’s architectural services. These findings of fact lead to the conclusion of law that the failure of consideration was partial only. Evidence was produced which would have sustained a finding that the plans produced by the plaintiff had no value.

The plaintiff asserts that there is no evidence or, in the alternative insufficient evidence, to support the trial court’s finding of “only $1400.00 in benefits”. In argument under these points it is contended that there is no evidence, or insufficient evidence, to limit the plaintiff’s recovery to $1400.00 rather than the sum of $9500.00, the amount established by the sworn account.

The insufficient evidence point is sustained. The evidence is insufficient to establish the cost of correcting the plan, or to establish which of the many services rendered by the plaintiff benefited the defendant. If it be correct that the defendant approved the first stage plans, this fact does not establish that the defendant received the full benefit of the services necessarily rendered in their production. There is evidence that these plans required revision in order to conform to the 40 foot set-back line.

The defendant, as cross-plaintiff, has presented no points of error complaining of that portion of the trial court’s judgment ordering that the cross-plaintiff take nothing as against the plaintiff and cross-defendant. This portion of the judgment will be severed and affirmed. In all other respects the judgment is reversed and the cause is remanded.


source: Caselaw Access Project

author: ROBERTSON, Justice.

license: Public Domain

text:
    Rex NEWSOM, Appellant, v. Jerry STARKEY et al., Appellees.
    No. 19563.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 22, 1978.
    B. Michael Chitty, Terrell, for appellant.
    B. Bryan Leitch, III, Dallas, for appellees.
   ROBERTSON, Justice.

This is an appeal from a take-nothing summary judgment on a cross-action for damages for wrongful garnishment. Jerry Starkey, et al., filed a writ of garnishment before judgment against certain garnishees owing money to Rex Newsom. After hearing and before judgment on the merits, the court granted the writ. Newsom then filed a cross-action for wrongful garnishment. The trial court granted Starkey’s motion for summary judgment on this cross-action. We reverse and remand.

The sole ground upon which Newsom seeks to hold the garnishors liable is that the garnishment statutes found in articles 4076 and 4084 of the Texas Revised Civil Statutes Annotated (Vernon 1966) and in Rules 657-679 of the Texas Rules of Civil Procedure are unconstitutional and thus void. Consequently, he contends that the garnishors by causing his funds to be seized under such an unconstitutional statute have committed a wrongful garnishment rendering them liable for damages.

The initial question is whether a garnishee may recover damages for wrongful garnishment where the writ was obtained pursuant to article 4084 of the Texas Revised Civil Statutes Annotated, a statute held unconstitutional on a due process basis in Southwestern Warehouse Corp. v. Wee Tote, Inc., 504 S.W.2d 592, 594 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ). We hold that since article 4084 was declared unconstitutional prior to the issuance of this writ, the seizure of property under this unconstitutional statute was wrongful. Accordingly, a cause of action will lie for damages.

Appellees argue that though the writ was obtained pursuant to article 4084, since the trial judge gave the garnishee notice and a hearing, as a matter of law, the garnishment was not wrongful. We do not agree. A court cannot remedy a constitutional defect in a statute by supplying the procedure that the statute fails to provide. This principle was aptly stated by the Commission of Appeals in International & G. N. Ry. Co. v. Mallard, 277 S.W. 1051, 1053 (Tex.Comm’n App.1925, judgmt. adopted) as follows: “ * * * The inexorable command is that a statute . . . must accord due process of law.” In our view, the notice and hearing were immaterial since as a general rule, a void statute is no law and confers no rights, bestows no power on anyone, and justifies no acts performed under it. Sharber v. Florence, 131 Tex. 341, 115 S.W.2d 604 (1938). Thus, no procedure for prejudgment garnishment existed that could have been utilized.

The rule is now established in Texas that if a garnishment was wrongfully issued and levied, a cause of action arises for actual damages. O’Hara v. Ferguson Mack Truck Co., Inc., 373 S.W.2d 507 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.). Accordingly, the judgment is reversed and remanded for trial.

GUITTARD, C. J., not sitting.

      . The writ was issued prior to the amendment to Rule 658 and the enactment of Rule 663a of the Texas Rules of Civil Procedure.


author: PEDEN, Justice.

text:
    DREVER & ASSOCIATES PROFESSIONAL PERSONNEL SERVICE, Appellant, v. Don Michael BATEY, Appellee.
    No. 17226.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 24, 1978.
    Rehearing Denied Oct. 5, 1978.

      Grubb & Morris, John K. Grubb, Houston, for appellant.
    Roger H. Broach, The Woodlands, for ap-pellee.
   PEDEN, Justice.

Drever and Associates appeals from the denial of a temporary injunction against Don Michael Batey to enforce a noncompet-ition covenant in his employment contract. The trial judge’s order indicates that the denial of relief was based on his opinion that the plaintiff has an adequate remedy at law. We reverse and remand.

The parties executed an agreement dated February 1, 1977, that contained this covenant:

It is mutually agreed that DREVER & ASSOCIATES and any future DREVER & ASSOCIATES offices will suffer great loss and damage if, during the employee’s employment and for one (1) year after termination he or she should: (1) work for or operate, directly or indirectly, any other private employment agency, within the counties of Harris, Brazoria, Galveston, Liberty, Montgomery and Fort Bend and within a 30 mile radius of any office that DREVER & ASSOCIATES hereafter establishes: (2) own, directly or indirectly, or beneficially, any interest in any other private employment agency: (3) use, directly or indirectly, forms containing the name DREVER & ASSOCIATES, DREVER & ASSOCIATES’ mailing list, list of prospective employers, list of prospective employees, resumes, job openings, list of clients and job orders. Therefore, in consideration of these premises and for the sum of Ten Dollars ($10.00) cash in hand paid, receipt and sufficiency of which is hereby acknowledged by associate, associate does expressly covenant and agree that during the term of his or her employment and for a period of one (1) year immediately following the termination of such employment (regardless of whether such termination is voluntary or involuntary) shall not: (1) work, directly or indirectly, for any other private employment agency within the counties of Harris, Brazoria, Galveston, Liberty, Montgomery and Fort Bend and within a 30 mile radius of an office of DREVER & ASSOCIATES hereafter establishes; (2) own, directly or indirectly or beneficially, any interest in any other private employment agency; (3) use, directly or indirectly, forms containing the name DREVER & ASSOCIATES, DREVER & ASSOCIATES’ list of prospective employees, list of prospective employers, list of clients, mailing list, resumes, job openings and job orders.

Mr. Batey resigned from Drever on April 3, 1978, and began working for a competitor, Recruiter’s, Inc., two weeks later. He testified that he services the same types of accounts in the instrumentation engineering and sales fields at Recruiters, Inc., that he had previously handled at Drever & Associates.

Appellant’s application for temporary injunction alleged a violation of the contractual covenant and tortious interference with its contractual rights and privileges. Appellee did not file an answer.

The appellant asserts in its points of error that the trial court abused its discretion in denying the temporary injunction because the evidence shows (1) that appellee violated the noncompetition covenant and (2) that a temporary injunction is the only adequate remedy.

The trial judge did not make findings of fact or conclusions of law.

In a hearing on an application for a temporary injunction, the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953).

“To warrant issuance of the writ, an applicant is not required to establish that he will prevail on final trial; he needs only to plead a cause of action and to show a probable right on final trial to the relief he seeks and probable injury in the interim. ... A trial court judgment either granting or denying a writ will not be reversed unless the appellate courts are convinced that it represents a clear abuse of discretion.”

Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968).

Issues raised by an employee with respect to there being no necessity to protect the employer by an injunction since only good will and not trade secrets is involved, if meritorious, are such as should be determined upon a hearing on the merits and not on a temporary injunction hearing brought to preserve the existing condition until the case can be tried on the merits. Given a valid contract and admitted violations thereof, it became the duty of the trial court to properly apply the law to the undisputed facts. Wilson v. Century Papers, Inc., 397 S.W.2d 314 (Tex.Civ.App.1965, no writ).

A review of the evidence reveals that Drever showed a probable right to relief on a final hearing. Mr. Batey was called to testify by the plaintiff. Before working for Drever he had never had any prior experience in placing applicants with different companies; he received his training in the employment agency field from Drever but was .only given general information that he could have picked up at any agency. He acknowledged that he had made application for a private employment agency license for Recruiter’s, Inc., in late March of 1978, and that an employment agency operator’s license was issued to him in February, 1978. He applied for his operator’s license in December of 1977 because he heard that the tests were going to be made more difficult. He obtained the private employment agency license for Recruiter’s, Inc., as a favor to one of Recruiter’s employees. He is in direct competition with Drever, and there are some 6 or 7 other employment agencies in Houston competing in this specialty. He is still servicing the same types of accounts and is still dealing with people he sent mailings to when he was at Drever. He developed a rapport with several applicants while at Drever, and Drever has sent mail-outs to various companies concerning his training and qualifications. At his present job he can now use that rapport and good will in competition with Drever. He has, so far, not contacted any employer that he knows to have an active job order at Drever. He knew, before he worked for Drever, about half the employers he now contacts. If he knew that a company had job orders at several places and did not know that they had one at Drever, he would contact them. He has not talked to any applicant that he knows to be registered at Drever, but he is dealing with the same people he dealt with for Drever. He took no lists or materials with him when he left Drever. He worked for Drever for about a month before he was called upon to sign the agreement not to compete.

After Mr. Batey had been questioned by counsel for both parties, the trial judge curtailed the hearing, asking counsel what they would attempt to elicit from any further witnesses. Appellant’s attorney stated that Mr. Drever would testify that appellee has a specialized background that makes him very valuable in the employment agency field, that only 650 prospective job applicants exist in the field, that appellee built up good will, and that the damage is severe and cannot be measured in dollars and cents because the good will loss will increase geometrically over the years. He also stated that Mr. Faruolo of Drever would testify that he assisted in training Mr. Batey, that he introduced Mr. Batey to virtually every company Drever does business with, and that Mr. Batey would have had no trouble finding an engineering position.

Appellee’s attorney said that he would call Mr. Robinson, who had previously worked at Drever and now works for Recruiter’s, Inc. He would testify that Mr. Batey received very little training at Drever and that he brought more good will to Drever than he established while working there.

Neither party complains of this procedure for adducing testimony; counsel agreed that the summaries covered substantially what the witnesses would have said.

The record also establishes that appellant would suffer probable harm prior to a final hearing if a temporary injunction was not granted. The evidence is undisputed that the parties agreed to the contract and that appellee had violated its noncom-petition provision. Appellee’s admission that he received his only training in the employment field from appellant, that he is still servicing this limited area of accounts, that he is in direct competition with appellant and that he is still using the good will and rapport with the applicants that he developed while working for Drever all show that he is irreparably damaging the good will established by Drever. Mr. Drever would have testified that there were very few applicants available in this particular field, that the good will established by his firm through appellee was critical to matching these people with jobs, and that the damage is of such nature that it cannot be measured in dollars and cents. Appellant’s business would be continually jeopardized by appellee’s breach of the covenant, and it would be difficult to establish the amount of damages incurred since damages from loss of good will probably will continue to be incurred. See Hartkopf v. Southland Corp., 256 S.W.2d 241, 244 (Tex.Civ.App.1953, no writ). Adequacy of a remedy at law is a question of law; in order for the legal remedy to be adequate it must give to the plaintiff complete, final and equal relief. King v. Miller, 280 S.W.2d 331 (Tex.Civ.App.1955, writ ref. n. r. e.); Davis v. Gillen, 227 S.W.2d 834 (Tex.Civ.App.1949, writ ref. n. r. e.); Story v. Story, 142 Tex. 212, 176 S.W.2d 925 (1944). The evidence shows that appellant has no adequate remedy at law for the protection of its business interests. We are of the opinion that the trial court fell into error in not applying the law to the undisputed facts. Southland Life Insurance Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (1935); Traweek v. Shields, 380 S.W.2d 131, 135 (Tex.Civ.App.1964, no writ).

We find no merit in the appellee’s counterpoints. He cites no authorities in support of his statement that the court could have found the covenant in question to be void and unenforceable, and we have found none.

We consider overly broad the provision in the covenant concerning Mr. Batey’s not working for any agency within a 30 mile radius of any office Drever hereafter establishes. A temporary injunction issued pursuant to this opinion should not include such a provision.

The trial court’s order is reversed and remanded for issuance of an order temporarily enjoining the appellee as provided by the covenant between the parties (except as stated in the preceding paragraph of this opinion) for a period of one year from the date he left Drever and Associates.


author: EVANS, Justice.

text:
    Linda Jean ALEXANDER, Appellant, v. Robin Rosser GUNNING, Appellee.
    No. 17110.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 24, 1978.
    Supplemental Opinion Sept. 21, 1978.
    Boswell, O’Toole, Davis & Pickering, Martin J. Grimm, Houston, for appellant.
    Pruitt & Monshaugen, Donald R. Sallean, Houston, for appellee.
   EVANS, Justice.

This is an appeal by Linda Jean Alexander from an order modifying the terms of a prior divorce decree.

Under divorce decree dated July 30,1975, Linda Jean Alexander was appointed managing conservator of her three children and Dr. Robin Gunning was granted visitation rights. This action was subsequently instituted by Mrs. Alexander seeking modification of the divorce decree and a restriction of Dr. Gunning’s visitation rights. Dr. Gunning then filed a cross-action for modification, alleging that material and substantial changes in the circumstances of the children and parents required that he be named managing conservator. The trial court determined upon hearing that the terms of the divorce decree would be modified and it entered an order appointing Dr. Gunning managing conservator of the three children and restricting Mrs. Alexander’s rights of visitation. This appeal is from that order.

Subsequent to the date of oral submission in this court, Dr. Gunning has filed a motion to dismiss the appeal, alleging that Linda Jean Alexander failed to return possession of the parties’ three minor children to him upon expiration of an agreed two week visitation period from July 1, 1978 to July 16, 1978. Dr. Gunning’s motion is based upon the proposition that a party should not be permitted to prosecute an appeal while disobeying the order of the court from which the appeal has been taken. Strange v. Strange, 464 S.W.2d 216 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.); O. v. R, 560 S.W.2d 122 (Tex.Civ.App.—Fort Worth 1977, no writ); Hays v. Brandon, 245 S.W.2d 381 (Tex.Civ.App.—Fort Worth 1952, no writ); Burckhalter v. Conyer, 7 S.W.2d 73 (Tex.Comm’n App. 1928, holding approved).

Accompanying Dr. Gunning’s motion to dismiss is the affidavit of one of the appel-lee’s attorneys in which it is stated that upon investigation by Dr. Gunning, a private investigator, and the affiant “it appears as though Mrs. Alexander has left with the children, and her whereabouts and the children’s whereabouts are unknown to Dr. Gunning.” The affidavit further states that “Mrs. Alexander’s apartment . was devoid of certain home furnishings and personal effects, and appeared as though Mrs. Alexander had voluntarily vacated the apartment.”

The affidavit filed in support of the motion to dismiss reflects that Mrs. Alexander has departed her premises with the three children and has failed to return the children to Dr. Gunning, the managing conservator. This affidavit has not been controverted and it appears, therefore, that Mrs. Alexander is in disobedience of the trial court’s order which is the subject of this appeal.

The appeal will be dismissed unless the appellant, Linda Jean Alexander, complies with the trial court’s order by delivering the three children, Therese Gunning, Cheryl Gunning, and Donald Gunning, to the ap-pellee, Dr. Robin Gunning, in the presence of the sheriff or a deputy sheriff of Harris County or any officer of the 309th District Court of Harris County, on or before August 25, 1978, and in the event of such compliance by the appellee, such officer shall give immediate notice to this court certifying the fact.

SUPPLEMENTAL OPINION

On August 31, 1978, this court found the appellant Linda Jean Alexander to be in disobedience of an order of the trial court appointing the appellee, Robin Gosser Gunning, as managing conservator of the parties’ three children, Therese Gunning, Cheryl Gunning, and Donald Gunning, because the appellant had failed to deliver custody of the children to the appellee upon the expiration of appellant’s visitation rights, and this court’s said order directed that unless the appellant complied with the trial court’s said order by delivering said three children to the appellee in the presence of a sheriff or a deputy sheriff of Harris County or an officer of the 309th Judicial District Court of Harris County on or before August 31, 1978, the pending appeal from the trial court’s said order would be dismissed. It appearing to the court that the appellant has not complied with said order in the manner and time specified and that appellant continues in disobedience of the trial court’s order which is the subject of this appeal:

It is accordingly ORDERED that the appeal is dismissed and that costs of appeal are taxed against the appellant.


text:
    Henry V. BROADY, Trustee, Appellant, v. John T. MITCHELL, Jr., Trustee, Appellee.
    No. 17169.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 31, 1978.
    Rehearing Denied Sept. 28, 1978.

      DeLange, Hudspeth, Pitman & Katz, Eugene J. Pitman, Houston, for appellant.
    Wood, Campbell, Moody & Gibbs, Robin C. Gibbs, Houston, for appellee.
   EVANS, Justice.

This is an action to recover damages for breach of an earnest money contract executed by appellant, Henry V. Broady, Trustee, as seller, and by appellee, John T. Mitchell, Jr., Trustee, as purchaser.

The trial court entered judgment for the purchaser on the jury’s verdict, awarding damages for the difference between the agreed purchase price and the market value of the property at the time of its sale by the seller to a third party. The seller has appealed from that judgment, raising 24 points of error.

The earnest money agreement is dated August 23, 1977, and covers a small apartment project in West University Place near the City of Houston. The contract stipulated a total purchase price of $150,000.00, of which amount the sum of $16,000.00 was to be paid in cash at time of closing and the deferred consideration was to be represented by the purchaser’s conveyance being made “subject to” an existing first lien indebtedness of $61,000.00 and the purchaser’s “no personal liability” second lien note for the balance.

The contract designated Lawyers Title Company in Houston as escrow agent and provided the seller would furnish within 30 days from the date of his acceptance of the contract an owner’s title policy commitment with the standard clause pertaining to area, boundaries and encroachments deleted therefrom and an updated survey “in form and substance acceptable to the title company” which would serve as a basis for the deletion of the clause from the title policy.

The contract stipulated that “the offer” would remain open until August 24, 1974, that time was of the essence, and that the closing would take place at the office of the escrow agent on or before 60 days from the date of execution of the contract “at purchaser’s option.”

The contract reflects that it was executed by the parties on August 23,1974, and that the earnest money deposit in the sum of $1,000.00 was deposited with the title company on that date. Following the execution of the contract and the deposit of the earnest money with the title company, the parties set out to accomplish the matters required to consummate the sale.

It appears that the purchaser worked actively to assist the seller in meeting this objective. On September 19,1974, he wrote to the seller stating that he was concerned because some of the tenants in the apartment project claimed to own the appliances and air conditioners in their units and that he needed an accurate inventory of the appliances which were owned by the seller. He stated that there was a need for some adjustment in the down payment to compensate for the absence of those appliances which the seller did not own, and he listed a number of repairs which needed to be made. On September 24, he advised the seller that he had gone with the housing code inspector on the premises, and he listed a number of items requiring repair which the inspection had revealed. He suggested that an agreement be reached on a figure which would represent the cost of purchasing and installing good used appliances to compensate for those owned by tenants, and he stated that he wished to see a copy of the survey which the seller obtained when he first purchased the units to see if it had been updated and if it showed the location of any easements, rights-of-way, improvements or encroachments. He stated that he had listed all items which, in his opinion, required action prior to closing and asked that when such items had been accomplished, he be advised so that “we can schedule the closing.” On October 14,1974, he again wrote to the seller asking verification of the list which he had prepared from his notes indicating the appliances and air conditioner units not owned by the seller and stating his belief that he was due a $200.00 credit for each appliance not owned or not in proper working order at the time of closing. He again asked that when the listed items had been accomplished he be advised so that a closing might be scheduled and stated his view that since the stipulated closing date was October 22, 1974, “we may need to extend it for 30 days.”

On October 16, 1974 the purchaser and the seller jointly executed a stipulation which recited that “due to delays and negotiations pertaining to the subject contract, we wish to extend the closing date until October 31, 1974.”

Both parties testified that on or before October 31, 1974, the agreed time for closing was orally extended to November 1, 1974, and that at some point in their negotiation prior to November 1, 1974 they reached an agreement to reduce the amount of the purchase price by the sum of $2,500.00, as a credit to the purchaser for the aforementioned appliances and air conditioning units. Accordingly, it is undisputed that the parties agreed to close the transaction on November 1, 1974, and that the total purchase price for the property at that time was to be the sum of $102,500.00.

On November 1,1974 both parties met at the title company for the purpose of closing the transaction. The purchaser testified that he was ready to close on that date and that he had the check for the cash down payment in his pocket. He testified that he did not tender the check because it became obvious “very early in the meeting” that the transaction could not be closed on that date. The seller was unable to furnish at that time an updated survey acceptable to the title company and thus was unable to provide the required title policy commitment. He was also unable to furnish an estoppel certificate, as required by the contract, which was to be executed by the mortgage company holding the first lien note. The purchaser testified that after November 1, 1974, he continued to regard the contract as being in full force and effect and that the seller indicated to him that he would obtain the necessary documents and would later meet with him to close the transaction. During the month of December the purchaser received “indications” from his attorney that the seller was willing to close in the early part of January, but no specific date was arranged. During the month of December he contacted the mortgage company several times to discover what procedural steps needed to be taken so that he could either take his conveyance subject to the first lien note or agree to assume the indebtedness. He testified that during the months of November and December he was ready, willing, and able to close the agreement and was working toward an early January closing.

On November 22, 1974, the purchaser’s attorneys wrote to the seller and advised him that the purchaser was “ready to close” the contract and had complied with all his obligations thereunder. In this letter the purchaser’s attorneys stated that the purchaser agreed to assume the mortgage, rather than take subject to it, and that the cash, note and deed of trust were escrowed at the title company awaiting closing. The letter stated that it was the purchaser’s position that the seller had intentionally tried to breach the contract and that the seller was placed on notice that specific performance would be sought if he did not furnish the survey forthwith or agree to escrow the funds and proceed to close the transaction.

On January 9,1975 the seller consummated a sale of the property to a third party for a purchase price of $115,000.00 and this action resulted.

The seller’s testimony concerning the November 1 meeting does not differ materially from that of the purchaser. He admits that he was unable to furnish the four items needed to complete the closing at that time, but states that he left his deed with the title company on that date with the understanding that it would be returned to him on the following Friday if the matter was not closed by that time. He testified that after he received the purchaser’s letter of November 22, 1974 he agreed to go through with the sale if the transaction was closed by January 2, 1975 upon the terms stipulated prior to the November 1 meeting. He stated that he had conveyed this information to the title closer and to the purchaser’s attorney, but that he had not directly notified the purchaser of the January 2 closing date. He “just presumed” that they wanted to close and “if I had the survey there, that was it”. He testified that he took the survey to the title company on January 2 and after being advised by the title closer that “they didn’t have the money there” he considered the entire matter at an end. He stated that in extending the closing date to January 2, he did not believe he was doing so under the terms of the original contract because he “considered that contract out.”

In response to special issues the jury found:

(1) That the parties had agreed to reduce the amount of the purchase price by the sum of $2,500.00;
(2) That the parties had reached an oral agreement to extend the date of closing to the early part of January 1975;
(3) That the seller had not terminated the contract prior to January 9,1975, and;
(4) That prior to January 9, the purchaser had tendered substantial performance of his obligations under the contract.

The jury failed or refused to find from a preponderance of the evidence:

(2a) That the seller had, prior to January 2, 1975, given notice to the purchaser that the closing would be held at a particular time or place on that date.

The jury further found that the market value of the property was $130,000.00 on the date of the sale to the third party and on the basis of the jury’s verdict the trial court entered judgment for the purchaser in the amount of $27,500.00 as damages with interest thereon from the date of the breach of contract.

It is the seller’s contention that there is no evidence of the purchaser’s tender of performance under the contract and that the evidence merely shows an attempted oral modification of a written agreement which falls within the prohibition of the statute of frauds. He contends that the fourth special issue was not an ultimate issue in the case and that the jury’s verdict afforded no basis for a judgment in favor of the purchaser.

Under these points the seller argues that the earnest money contract was a mere option, as distinguished from a contract for the sale and purchase of land, and that since the purchaser did not tender his obligation at the time of closing, the option was never exercised.

The earnest money agreement provides that if the purchaser fails to complete the sale for reasons other than the seller’s default, the seller “shall retain the Earnest Money heretofore paid as liquidated damages, and this Agreement shall be null and void and all obligations hereunder imposed upon either party shall cease and terminate.” Since the seller’s only contractual remedy in the event of the purchaser’s default was the retention of the earnest money the agreement did constitute an option rather than a bilateral agreement for the sale and purchase of land. Smith v. Hues, 540 S.W.2d 485 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.).

The seller further argues that since the agreement was an option, it must have been exercised strictly in accordance with its terms, and he contends that there is no evidence that the purchaser ever exercised or accepted the option according to its terms.

After the purchaser deposited the stipulated earnest money with the title company, he was under no duty to take any action in the matter until the seller made appropriate tender of his obligations under the contract. Sterling v. Apple, 513 S.W.2d 255, 258 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ).

It is undisputed that a closing date was set for November 1, 1974, and that at the designated time and place both parties met for the purpose of consummating the transaction. It is also undisputed that at the time of closing the seller failed to perform his obligations under the contract in that the title company did not accept his updated survey as a basis for deleting the printed exception from the title policy commitment. Thus, it was not due to the purchaser’s inability to complete his obligations under the agreement, but rather to the seller’s failure to make appropriate tender of his obligations that the sale was not consummated on the agreed date for closing. The failure of the purchaser to comply strictly with the terms and conditions of the option agreement will be excused when such failure is brought about by the conduct of the seller. Tiffany Dev. Corp. v. Cangelosi, 514 S.W.2d 321, 325 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265, 131 S.W.2d 957 (1939).

A stipulated time limit for performance of an option agreement may be extended either by agreement or by waiver, even where the contract provides that time is of the essence, and the fact of such waiver may be shown either by parol or made to appear from the circumstances or the parties’ course of dealing. Smith v. Hues, supra; Puckett v. Hoover, 146 Tex. 1, 202 S.W.2d 209 (1947).

The undisputed evidence shows that the parties did not close the transaction on November 1,1974, in order that the seller would have time to obtain the survey and other documents required to be furnished by him under the contract. It clearly appears from the evidence that the parties did not contemplate that the purchaser would be required to make tender of his obligations until such time as the seller had furnished the documents necessary to meet his obligations. It was the seller’s duty to notify the purchaser when he had fulfilled his obligations under the contract and that he was ready, willing, and able to close the transaction at some definite time, place, and date in the future. Since the seller failed to give such notification and, instead, precluded further negotiation with the purchaser by making a conveyance of the property to a third party, the purchaser was not required to make tender of his obligations as a prerequisite to recovery of damages for the seller’s default. McMillan v. Smith, 363 S.W.2d 437 (Tex.1962); Burford v. Pounders, 145 Tex. 460, 199 S.W.2d 141 (1947).

The jury found in response to special issue number 2 that the seller and the purchaser had orally agreed to extend the time for closing until the early part of January 1975, and in response to special issue number 3 that the seller had not terminated the contract prior to his sale to the third party on January 9, 1975. The seller contends that the evidence is legally and factually insufficient to support the jury’s findings to special issue number 2 and that its findings in response to that special issue and to special issue number 3 are against the great weight and preponderance of the evidence.

The purchaser testified that he was ready, willing, and able to close the transaction during the months of November and December 1974, and that he understood they were working toward a closing in early January 1975. The letter from his attorneys to the seller dated November 22,1974, and the seller’s own testimony concerning his actions after receipt of that letter, tend to support the purchaser’s version. The seller admitted that after receiving the letter of November 22, 1974, he would sell the property on the terms stipulated prior to the November 1, 1974 meeting. He testified:

Q. “Anyway, you wanted, you were agreeing that the purchaser through January, the early part of January, would have a right to close on that contract at $102,500?
A. On that price. Yes. $102,500.
Q. Did you thereafter undertake to set a specific closing date?
A. Well, I took the new survey down. And I was ready to close. I had told them that if they were ready by January 1st, which it was extended to January 2nd, because of a holiday, I would close the deal.
* * * * * *
Q. In fact, as of January 1st, had you ever formally set a closing date?
A. Well, I don’t know that, how I could set a closing date. All I could do was produce what I could produce, which was a new survey. And that was all I could do, sir.”

The seller further testified that his surveyors went out on the property on December 31, 1974, and performed the necessary survey work, and that he obtained a blueprint of their survey on January 2,1975 and took it to the title company office. He testified that he did not make a tender of his deed on January 2, 1975, because he understood from the title closer that the purchaser was unable to gain the approval of the mortgage company. He stated that he had made no effort to notify the purchaser of the closing on January 2 because he did not think that he was obligated to do so.

The purchaser testified that on January 2,1975, a copy of the survey was mailed by the title company to his attorneys and that he received the survey from his attorneys on January 6, 1975. He did not learn that the property had been sold to a third party until January 13, 1975. He had never intended to forfeit his rights under the contract or to terminate the contract, and he had made every effort to close the transaction. He was never advised by the seller that the contract had been terminated.

The jury was at liberty to infer from the evidence that the parties had orally agreed at the time of the November 1,1974 closing to extend the time for closing until the seller could fulfill his obligations under the contract. It could also have concluded from the evidence that the parties had agreed to close the transaction in early January 1975, but had never agreed upon a specified date in that month.

The seller’s points of error challenging the evidentiary support of special issues 2 and 3 are overruled.

The seller further contends that there is no pleading to support the submission of special issues 2 and 3 and that the jury’s findings with respect thereto are at variance with the purchaser’s pleading that the seller had declared the contract terminated. These contentions will also be overruled. The purchaser’s pleading alleges that the parties met at the title company on November 1, 1974 to close the transaction, at which time it was noted that the seller had failed to furnish an adequate survey, and that the closing was therefore held in abeyance pending delivery of such updated survey. The pleading recites that after the seller had stated that he would not perform the agreement, he thereafter agreed to hon- or the contract and to proceed with the closing, but that prior to consummation of the transaction he breached the agreement by making the sale to a third party. These pleadings are consistent with the evidence adduced by the purchaser at the trial and are not at variance with the jury’s findings in response to the issues submitted. The allegation in the pleading that the seller had unilaterally declared to the purchaser that he would not perform under the existing contract relates to his stated position prior to the time he received the demand letter from the purchaser’s attorneys. The pleading clearly reflects that after making such declaration he changed his mind and agreed to go forward with the sale.

In his last two points of error the seller contends that the damages issues improperly inquired about the value of the property on January 9,1975, the date of his sale to a third party, rather than November 1, 1974. He argues that there was no evidence from which the jury could find the amount of damages under an appropriate measure of damages. These contentions will be denied. There was no breach of the contract until January 9, 1975, when the seller conveyed the property to a third party and thus prevented consummation of his agreement with the purchaser. There was evidence that indicated the value of the property on January 9, 1975, to be as high as $150,000.00 and the jury found the market value on that date was $130,000.00. The trial court merely subtracted the purchase price of $102,500.00 from the amount found by the jury and awarded the seller the difference plus interest from the date of breach. Generally, the measure of damages for breach of contract to sell real estate is the difference between the contract price and the market value of the property at the time of the breach. Elliott v. Henck, 223 S.W.2d 292 (Tex.Civ.App.—Galveston 1949, writ ref’d n. r. e.); Roselawn Cemetery, Inc. v. Martin, 415 S.W.2d 442 (Tex.Civ.App.—San Antonio 1967, no writ).

The judgment of the trial court is affirmed.


author: RALEIGH BROWN, Justice.

text:
    Henry BOWIE, Appellant, v. G. P. PLASTICS, Appellee.
    No. 5218.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 31, 1978.
    Rehearing Denied Oct. 5, 1978.

      Alan H. Cooper, Kasmir, Willingham & Krage, Dallas, for appellant.
    Arlen D. Bynum, Bradshaw & Bynum, Dallas, for appellee.
   RALEIGH BROWN, Justice.

This is an occupier-invitee negligence case. Henry Bowie, a truck driver, sued G. P. Plastics Corporation, the occupier of premises where Bowie made deliveries, for personal injuries sustained by Bowie when a metal dockboard on Plastics’ premises allegedly rose up and threw him onto the concrete dock. Employer’s Mutual Liability Insurance Company of Wisconsin intervened, claiming subrogation rights.

The jury found (1) that the dockboard was in a dangerous condition; (2) that Plastics knew or should have known of the condition; (3) that Plastics failed to give Bowie an adequate warning of the condition; (4) that such was negligence; and, (5) the proximate cause of Bowie’s damages which totaled $39,000. The jury denied Plastics’ defensive theories. Plastics’ motion for judgment non obstante veredicto was granted from which only Bowie appeals. We reverse and render.

As stated by the court in Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974):

“ . . .To sustain the action of the trial court in granting the motion for judgment notwithstanding the verdict, it must be determined that there is no evidence upon which the jury could have made the findings relied upon. In acting on the motion, all testimony must be considered in a light most favorable to the party against whom the motion is sought and every reasonable intendment deducible from the evidence is to be indulged in that party’s favor. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952) ...”

On June 18, 1973, while unloading his truck in the course of making a delivery at Plasties’ premises, Bowie was injured when a truck-actuated dockboard rose up and struck him in the right shin, throwing him over onto the concrete dock where he landed on his right knee. As a result of this injury, Bowie developed traumatic chondro-malacia of the right knee and thighbone.

Texas has adopted Section 343 of the Restatement (Second) of Torts in occupier-invitee cases. As stated by the court in Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972):

“This court has often measured the duty which an occupier of premises owes to an invitee. Guidry v. Neches Butane Products Co., 476 S.W.2d 666 (Tex.1972); City of Beaumont v. Graham, 441 S.W.2d 829 (Tex.1969); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963); McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954). The duty is that which is summarized in Restatement (Second) of Torts § 343 (1965):
§ 343. Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c)fails to exercise reasonable care to protect them against the danger.
The occupier is under the further duty to exercise reasonable care in inspecting the premises to discover any latent defects and to make safe any defects or to give an adequate warning. Restatement (Second) of Torts § 343, Comment b (1965).”

See also Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975).

John Lloyd, an expert witness, gave extensive testimony concerning the operation of the dockboard. He testified that he had inspected the dockboard in May, 1976. The dockboard was a truck-actuated, biased-upward counterbalanced unit. “Biased-upward” means the .ramp portion stays above the dock level until a truck backs against it and causes the ramp to lower down into the bed of the truck. The dockboard is held in an “up” position when not in use by a weight called a “counterbalance” located beneath the ramp. Four photographs admitted into evidence showed the dockboard from various angles.

Lloyd testified that when a truck backed up to such a dockboard, it depressed two “actuating” arms which protrude out on either side of the dockplate. This pulls the dockboard ramp down onto the bed of the truck and holds it there firmly until the truck pulls away from the dock. A system of rods, arms and springs when activated generate the tension necessary to overcome the weight to the counterbalance and hold the dockboard firmly on the bed of the truck. When the truck pulls away from the dock, the tension on springs beneath the dockboard is released and the dockboard rises up to its original position.

Bowie’s testimony was that he backed his truck up to the dock on the day of the accident using the outside rear view mirrors located on both sides of the truck cab. He entered the dock area through a separate entrance and presented his delivery bill to C. S. Savage, the warehouse supervisor. Bowie returned to his truck, opened its rear door, entered the trailer and picked up a small carton. There were two men in the dock area, one of whom was standing on the dockboard looking into the back of the truck. As Bowie began to walk out of the truck toward the dockboard, the man stepped off of it. The dockboard rose up and struck Bowie on the right shin, throwing him onto the concrete dock. After he got up, Bowie noticed that the dockboard was raised about six inches from the bed of the truck.

Savage, the warehouse supervisor, testified that one of the two men standing in the vicinity of the accident was an employee of Plastics named Milton. His duties included helping truck drivers load and unload trucks. The other man was an employee of Brass Craft. Neither Milton nor the Brass Craft employee testified at the trial.

Savage also testified:

“QUESTION: ‘Do you recall an accident occurring on one of those loading docks during June of 1973 that involved the Plaintiff, Henry Bowie, who’s sitting here?’
ANSWER: T do.’
QUESTION: ‘Did you see that accident occur?’
ANSWER: T did not.’
QUESTION: ‘You say you didn’t see this accident. When was the first time you knew about the accident, the one involving Mr. Bowie?’
ANSWER: T guess it would be when I heard the commotion which would have been when the dock plate actually come back up.’
QUESTION: ‘Okay, sir. What did you hear exactly that brought this to your attention, you say the commotion.’
ANSWER: ‘Well, this is the way — you want me to go ahead and tell you what I seen or what I heard?’
QUESTION: ‘Yes, sir.’
ANSWER: ‘All right. I was preparing my shipments and orders at that particular time. The best I remember he was delivering a shipment at this time.’
QUESTION: ‘Yes, sir. Were you at your desk?’
ANSWER: T was at my desk.’
QUESTION: ‘All right, sir.’
ANSWER: ‘And it was a boy. I don’t know his name. He was — I think he was, foreman at Brass Craft.’
QUESTION: ‘This boy from Brass Craft was not an employee of G. P. Plastics?’
ANSWER: ‘Right.’
QUESTION: ‘All right, and you don’t know his name?’
ANSWER: ‘No.’
QUESTION: ‘All right.’
ANSWER: ‘He was standing on the dock at that particular time holding it down.’
QUESTION: ‘All right. Holding it down. Go on.’
ANSWER: ‘Now, this is what actually my employee and this boy said.’
QUESTION: ‘Who is your employee now?’
ANSWER: ‘Milton.’
QUESTION: ‘Now, where was he located?’
ANSWER: ‘He was at the dock.’
QUESTION: ‘Was he on the dock?’
ANSWER: ‘No, he was probably filling orders around that area.’
QUESTION: ‘All right, sir. And then you saw this fellow from Brass Craft standing on the dock and what happened next?’
ANSWER: ‘No. I didn’t see him standing on the dock. They said he was standing on the dock holding it down.’
QUESTION: ‘All right. Who told you that?’
ANSWER: ‘Milton and both this boy.’
QUESTION: ‘Was this after the accident that they told you this?’
ANSWER: ‘No. He stepped off the dock momentarily and that’s when it rose and that’s when the accident occurred.’ ”

Bowie contends that the court erred in holding that there is no evidence that the dockplate was in a dangerous condition at the time of the accident and that there is no evidence Plastics knew or should have known of the dangerous condition. We agree.

The court in Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975) said:

“ . . . Whether a condition constitutes a danger is a function of reasonableness. That is, if the ordinarily prudent man could foresee that harm was a likely result of a condition, then it is a danger. 2 F. Harper & F. James, The Law of Torts § 27.1 at 1431 (1956); W. Prosser, The Law of Torts § 61, at 385 (4th ed. 1971). In Seideneck v. Cal Bayreuther Associates, supra [451 S.W.2d 752 (Tex.)], this Court stated:
As might be expected with a matter involving the ‘reasonable man’ concept, there seems to be no definitive, objective test which may be applied to determine whether a condition presents an unreasonable risk of harm. Obviously, evidence of other falls attributable to the same condition, or evidence of defectiveness of the rug, floor, or other condition causing the fall would be probative, although not conclusive, on the question.”

The jury absolved Bowie of any negligence with respect to the activation of the doekboard. Lloyd’s testimony regarding the operation of the device was to the effect that the doekboard would hold firmly on the bed of the truck until the truck pulled away from the dock. Bowie testified that the doekboard rose up and caused his fall. The jury could reasonably infer the doekboard’s operation was defective on June 18, 1973, and such condition presented an unreasonable risk of harm to Bowie. Coffee v. F. W. Woolworth Co., 536 S.W.2d 539 (Tex.1976).

On the issue of Plastics’ knowledge of the dangerous condition, two witnesses gave crucial testimony.

Johnny Yeatman, a former employee of Plastics, testified:

“Q ‘Did you formerly work for G. P. Plastics Corporation?’
A ‘Yes, sir.’
Q ‘And where did you work for G. P. Plastics Corporation?’
A ‘Shipping and receiving.’
Q ‘Did you work on the dock?’
A ‘Yes, sir.’”
“Q ‘The question is: Were you familiar with the condition of the dock plate nearest Regal Row prior to June of 1973?’
A ‘Yes, sir.’
Q ‘What was the condition of that dock plate prior to June of 1973?’
A ‘Unsafe, sir.’
Q ‘In what regard.’
A ‘You would step on it sometimes and it would give away under you. It should have a latch there or something to hold it up. You could step on it with a foot and it would fall when it shouldn’t have.’ Q ‘Were the springs underneath dock plate number one sometimes disconnected while you worked there?’
A ‘Yes, sir.’
Q ‘Prior to June of 1973?’
A ‘Yes, sir.’”
“CROSS EXAMINATION
Q ‘When did you work for G. P. Plastics?’
A ‘Oh, August, a little over five years ago, sir.’
Q ‘Five years ago?’
A ‘Yes, sir.’
Q ‘When did you leave their employment?’
A ‘August five years ago.’
Q ‘That would be August of 1972?’
A ‘Yes, sir.’
Q ‘And what you’re testifying to happened before August of 1972?’
A ‘Yes, sir.’
Q ‘You don’t know what condition the dock plates were August and June of 1973, do you?’
A ‘No, sir, not after I left.’ ”

Savage testified although he did not see the accident occur, his first knowledge of the accident was when he “heard the commotion which would have been when the dock plate actually come back up”.

According to Savage’s testimony, as previously set forth, Milton, Plastics’ employee, and the Brass Craft employee both told him that the Brass Craft employee was “standing on the dock at that particular time holding it down” and that he “stepped off momentarily and that’s when it rose and that’s when the accident occurred.” This testimony is not excluded as hearsay and such statements are admissible to show actual knowledge of the dockboard condition. McWilliams v. Snap-Pac Corporation, 476 S.W.2d 941 (Tex.Civ.App.—Houston (1st Dist.) 1971, writ ref’d n. r. e.); Okan Pipeline Company v. Eiland, 394 S.W.2d 548 (Tex.Civ.App.—Eastland 1965, writ ref’d n. r. e.); McCormick & Ray, Texas Evidence § 799 (2nd ed. 1956).

The jury could infer from this testim'ony that Plastics, through its employee, Milton, had actual knowledge of the dangerous condition of the dockboard that required holding it down to keep it from rising up.

Plastics argues that Bowie was required to show that the alleged defective condition existed for such a length of time that would give it, the occupier of the premises, a reasonable opportunity to discover it. We disagree. A distinction is drawn when an occupier has actual knowledge of the condition. In the case at bar, the jury properly found that the dockboard was in a dangerous condition and Plastics had actual notice of such condition. This distinguishes the instant case from the recent case of Overstreet v. Gibson Product Co., Inc. of Del Rio, 558 S.W.2d 58 (Tex.Civ.App.—San Antonio 1977, writ ref’d n. r. e.) wherein the defendant had no actual knowledge of the condition and the court held “the question of liability depends on whether or not it may reasonably be inferred that the condition existed for such length of time as would give defendant a reasonable opportunity to discover it. Coffee v. F. W. Woolworth Co., 536 S.W.2d 539, 544 (Tex.1976).”

As stated in Overstreet, supra:

“An occupier of premises is liable for physical injury to his business guests or invitees resulting from a condition on the premises only if the following three conditions are met: (1) The occupant knows of, or by the exercise of reasonable care should have discovered, the condition and should realize that it involves an unreasonable risk of harm to such guests. (2) He should expect that his patrons will not discover or realize the danger, or will fail to protect themselves against it. (3) He fails to exercise reasonable care to protect his business guests against such danger. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536-37 (Tex.1975); Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 454-55; Tex. Restatement (Second) of Torts § 343 (1965).” (Emphasis ours)

Since Plastics had actual knowledge of the condition, the length of time of its existence is immaterial.

Having considered the evidence in its most favorable light in support of Bowie’s position, we hold the trial court erred in concluding that there was no evidence the dockboard was in a dangerous condition and Plastics knew of the condition. Also there is evidence of probative force to support the jury’s findings of Plastics’ failure to give Bowie an adequate warning of the condition, that such was negligence and the proximate cause of Bowie’s injury. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

We reverse the judgment of the trial court and render judgment for Bowie.


author: COLEMAN, Chief Justice.

text:
    Ruth Jones GUIDRY et al., Appellants, v. John H. MASSEY, Trustee, Appellee.
    No. 17187.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 7, 1978.

      Moses “Moe” Sanchez, Terrence A. Gaiser, Houston, for appellants.
    Hodges, Gates & Halcom, H. P. Halcom, Columbus, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from a judgment rendered in favor of John H. Massey, Trustee, hereinafter referred to as Massey, against Elizabeth Harris, as Independent Executrix of the Estate of Ruth Jones Guidry, Deceased, hereinafter referred to as Guidry, and Benjamin Harris, hereinafter referred to as Harris, for possession of a certain tract of land and damages. The case was called for trial and tried in the absence of counsel for Guidry and Harris. A timely motion for new trial was filed. It was denied by the trial court and this appeal resulted.

The judgment from which this appeal is taken reflects that on the 12th day of December, 1977 this cause came to be heard in the district court. Massey and Horace I. Allison, a defendant, appeared in person and by attorney and announced ready for trial. Guidry and Harris, who had filed answers and had been given proper notice of the setting of the cause, failed to appear. The judgment recites that the attorney for Harris and Guidry had filed a motion for continuance on December 9, 1977, alleging that he could not be present for the trial because he had been set for trial in Harris County, Texas, on the same date. The judgment recited that the motion for continuance was not presented to the court. Findings of fact which support the judgment entered are recited in the judgment.

A motion for new trial was filed and, after an evidentiary hearing, was denied. The evidence presented on the motion was sufficient to require findings that the failure to appear for trial was not intentional or the result of conscious indifference on the part of the attorney, but was caused by the fact that the attorney was required by another district judge to appear in his court to represent the defendant in a criminal case on the same date.

The motion for new trial neither alleged nor “set up” a meritorious defense. The Supreme Court of this state has clearly held that motions for new trial seeking to set aside default judgments entered on failure of a defendant to appear for trial must set up a meritorious defense and be filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966). The failure to set up a meritorious defense in the motion for new trial was assigned as a reason for the denial of the motion in this case by the trial court. The trial court did not err in overruling the motion for new trial.

The case was tried to a jury and issues were answered with reference to the defendant Allison. Based on the jury’s answers to the issues submitted, the trial court entered a take nothing judgment as to Mr. Allison. The motion for new trial filed by Harris and Guidry complains of the action of the trial court in proceeding to trial in the absence of their attorney. No other ground for new trial was set up in the motion. The action of the trial court in proceeding to trial in the absence of the attorney is the only point urged on this appeal.

The judgment recites that the motion for continuance filed by Guidry and Harris was not presented to the court. It is asserted in the motion for new trial that the reason for the failure to present the motion was that the trial court was out of the county on the date it was filed, which was the last working day before the date set for trial. The trial court was notified of the conflict in schedules on the Saturday preceding the date set for trial, but the evidence does not establish that the motion was formally presented, or that the judge entered an order overruling the motion.

Rule 247, T.R.C.P., provides that no cause which has been set upon the trial docket of the court shall be taken from the trial docket for the date set except by agreement by the parties or for good cause upon motion and notice to the opposing party. Even though the trial court had knowledge of the circumstances which caused the attorney for Guidry and Harris not to appear at the time set for trial, he had no duty to call up the motion for continuance in the absence of the moving party. It was established at the hearing on the motion for new trial that the attorney for Massey was furnished a copy of the motion on the date it was filed and that he did not agree to a continuance. Under these circumstances the trial court did not abuse his discretion in proceeding to trial. Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966); Browne v. Jefferson County, 507 S.W.2d 293 (Tex.Civ.App.—Beaumont 1974, ref’d n. r. e.).

In a case such as this where a lawyer for one of the parties fails to appear at trial but is able to perfect an appeal from an adverse judgment rendered in his absence, he is entitled to assert any claimed error on the appeal which the record reflects. If, however, he must rely on the action of the trial court in proceeding to trial in his absence, he must show that he was prevented from presenting his case at a proper time through some cause unmixed with negligence on his part and also that he had a meritorious case. American Hydrocarbon Corp. v. Hickman, 393 S.W.2d 197 (Tex.Civ.App.—Texarkana 1965, no writ).

The judgment is affirmed.


text:
    TEXAS EASTERN TRANSMISSION CORPORATION, Appellant, v. SEALY INDEPENDENT SCHOOL DISTRICT, R. L. Dittert, Individually and as Tax Assessor-Collector for the Sealy Independent School District, and Melvin Meier, Leroy Zapalac and Delmer Tipp, each Individually and in their capacities as Members of the Board of Equalization of the Sealy Independent School District, Appellees.
    No. 17129.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 7, 1978.

      Vinson & Elkins, David T. Hedges, Jr., Glen A. Rosenbaum, Houston, for appellant.
    Conner, Odom & Clover, C. E. Clover, Jr., Sealy, Elvin E. Tackett, Bedford, for appel-lees.
   COLEMAN, Chief Justice.

This is a suit to invalidate the tax assessment made by the Sealy Independent School District on certain pipeline properties of Texas Eastern Transmission Corporation. An examination of the record demonstrates that Texas Eastern timely requested the trial court to file findings of fact and conclusions of law and properly called to the attention of the trial judge his failure to file findings of fact. The rule in this state is that the failure of the trial court to file findings of fact and conclusions of law when properly requested constitutes reversible error, unless the record before the appellate court affirmatively reflects that the complaining party has suffered no injury. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944). Here conclusions of law were filed but the findings of fact on which they were based were not. Texas Eastern complains of the refusal of the trial court to file findings of fact by point of error number 11.

This point must be sustained. We conclude that instead of reversing the judgment, the proper order is one directing the trial court to file its findings of fact and conclusions of law. McShan v. Pitts, 538 S.W.2d 266 (Tex.Civ.App.—San Antonio 1976, no writ hist.).

The trial court is directed to file its original findings of fact and conclusions of law no later than September 18, 1978. Texas Eastern is allowed five days to request further, additional, or amended findings. After final action on such findings of fact and conclusions of law, same shall be filed in this court by supplemental transcript. The appellant will be allowed 30 days within which to file a supplemental brief, and the appellees are allowed 20 days to file reply briefs. Additional oral arguments will not be allowed.

The parties have requested numerous findings of fact. Rule 296, T.R.C.P., requires the trial judge, at the request of either party, to make and file findings of fact. It is contemplated that he shall file such findings as may be “found by him” in support of his judgment. He is not required to make findings concerning facts that are admitted; neither is he limited to such specific findings as may be requested by the losing party. Donalson v. Horton, 256 S.W.2d 693 (Tex.Civ.App.—Amarillo 1952, no writ hist.). He is not required to make findings that are immaterial to the resolution of any controlling issue in the cause or that are evidentiary only. Sauer v. Johnson, 520 S.W.2d 438 (Tex.Civ.App.—Austin 1975, ref’d n. r. e.). Additional findings and conclusions are not required to be prepared and filed by the trial judge where they do not relate to the ultimate or controlling issues, or where they conflict with the original findings and conclusions made and filed by the trial judge. Garcia v. Ramos, 546 S.W.2d 400 (Tex.Civ.App.—Corpus Christi 1977, no writ hist.).


text:
    SOUTHWEST PARK OUTPATIENT SURGERY, LTD., et al., Appellants, v. CHANDLER LEASING DIVISION, Pepsico Leasing Corporation, Appellee.
    No. 17162.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 7, 1978.
    Wood, Lucksinger & Epstein, Bill R. Bludworth, Houston, for appellants.
    Fulbright & Jaworski, Jeffrey R. Parsons, Houston, for appellee.
   EVANS, Justice.

This is an appeal from a summary judgment awarding possession of leased equipment to the lessor.

The plaintiff Chandler Leasing Division, as lessor, and Southwest Park Outpatient Surgery, Limited, as lessee, executed a lease dated September 16, 1974 covering certain items of equipment. Chandler subsequently brought this action against the lessee and four individuals who had guaranteed the lessee’s obligation, alleging default in the payment of the stipulated monthly rentals and seeking damages, repossession of the leased equipment and attorney’s fee. The defendants answered and also filed a cross-action against the supplier of the equipment alleging that the equipment was defective when delivered and unfit for the purposes intended.

The trial court entered a partial summary judgment awarding the plaintiff immediate possession of the leased equipment and ordered that its claim for possession be severed from the main action. A final judgment was then entered in the severed action awarding possession of the leased equipment to the plaintiff, and this appeal is from that judgment.

The trial court thereafter entered a partial summary judgment in the principal case, awarding the plaintiff the sum of $393,346.33 as the sum of the “liquidated lease payments presently due and remaining to be paid over the balance of the lease term”, and ordered the damage claim severed from the main case. A final judgment was then entered in the severed action for damages, the judgment reciting that it was without prejudice to the claims remaining to be determined in the principal case. No objection has been asserted with respect to the manner in which the claims were severed in the trial court, and that is not an issue on this appeal.

The issue on this appeal is whether the trial court erred in granting a summary judgment in favor of the plaintiff, awarding it immediate possession of the leased equipment, and this opinion will be limited to those matters raised by the defendants’ points of error which directly pertain to that question. In a separate opinion this date filed, this court has determined that the lease agreement provides for a penalty and has ordered that the judgment entered in the severed damage action be reversed and the cause remanded.

The defendants have challenged the sufficiency of the affidavit filed in support of the plaintiff’s motion for summary judgment, contending that the affidavit does not reflect that it was made on personal knowledge as required by Rule 166-A, Texas Rules of Civil Procedure. The affidavit recites that the affiant, a vice-president and controller of the plaintiff, is personally acquainted with the facts and that he is familiar with the administration and collection efforts of the plaintiff with respect to the lease in question. The affidavit is signed by the affiant and below his signature appears the notary public’s verification that the affidavit was “sworn to and subscribed before me.” Although the affidavit does not specifically recite that the matters stated therein are true, this is its obvious effect when considered in its entirety. The affidavit is not fatally defective. Gutierrez v. Hacher’s Dept. Store, 483 S.W.2d 433 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.).

The lease agreement provides that in the event default should be made in the payment of rent, the lessor would have the right to the possession of the leased equipment. The supporting affidavit recites that subsequent to the delivery of the leased equipment to the lessee, no monthly rental payments were made under the lease agreement. This factual allegation has not been controverted by any of the defendants.

There being no dispute as to any genuine issue of material fact pertaining to the plaintiff’s claim for repossession of the equipment and the movant having shown that it is entitled to judgment as a matter of law, the trial court properly entered summary judgment for the plaintiff. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970).

The trial court’s judgment is affirmed.


text:
    SOUTHWEST PARK OUTPATIENT SURGERY, LTD., et al., Appellants, v. CHANDLER LEASING DIVISION, Pepsico Leasing Corporation, Appellee.
    No. 17163.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 7, 1978.

      Wood, Lucksinger & Epstein, Bill R. Bludworth, Houston, for appellants.
    Fulbright & Jaworski, Jeffrey R. Parsons, Houston, for appellee.
   EVANS, Justice.

This is an appeal from a summary judgment awarding a lessor damages for breach of a lease equipment.

The lease in question is dated September 16, 1974, and was executed by Chandler Leasing Division as lessor and by Southwest Park Outpatient Surgery, Ltd., as lessee. R. W. Dwyer, Nadine Kay Dwyer, Thomas C. Rooney, and Genevieve Rooney each executed agreements personally guaranteeing the lessee’s obligation under the lease.

Chandler Leasing Division subsequently brought this action against the lessee and the four guarantors, alleging default in payments of monthly rentals and seeking damages, repossession of the leased equipment and attorney’s fees. The defendants answered and also filed a cross-action against the supplier of the equipment alleging that the equipment was defective and not fit for the purposes intended.

The trial court granted a partial summary judgment awarding the plaintiff possession of the leased equipment and severed that claim from the main cause. A final judgment was then entered in the severed cause, and an appeal was taken from that judgment to this court. In a separate opinion this date filed, this court has affirmed the trial court’s summary judgment awarding possession of the leased equipment to the plaintiff.

The trial court also entered a partial summary judgment awarding the plaintiff the sum of $393,346.33 as “the entire amount of liquidated lease payments presently due and remaining to be paid over the balance of the lease term”, and ordered that claim severed from the main cause. A final judgment was then entered in the severed action awarding said sum to the plaintiff, the judgment reciting that it was without prejudice to the claims remaining in the principal case. No objection has been made to the manner in which the claims were severed in the trial court and that is not an issue on this appeal.

In the case at bar the defendants contend that the trial court’s judgment should be reversed because the affidavit filed in support of the plaintiff’s motion for judgment is fatally defective. This contention will be overruled for reasons discussed in this court’s opinion of even date on the appeal from the summary judgment awarding the plaintiff possession of the leased equipment.

The defendants also contend that the summary judgment proof established genuine issues of material fact with respect to their affirmative defenses of failure of consideration, usury and penalty. The plaintiff contends that these issues were not raised by the pleading or established by the proof.

In their answers the defendants alleged that the consideration had failed because the equipment was defective when delivered and was not fit for the purposes intended. The defendants also asserted this defense in their response to the plaintiff’s motion for summary judgment. The supporting affidavit of the guarantor Dwyer alleges that the lessee did not receive all of the equipment listed in the lease rental schedule and that the equipment never functioned as required and was not fit for the purposes intended. The affirmative defense of failure of consideration was sufficiently alleged for the purposes of the summary judgment proceeding. Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233 (1957); DeBord v. Muller, 446 S.W.2d 299 (Tex.1969). The summary judgment proof does not, however, raise a fact issue on this affirmative defense in view of the parties’ contractual agreement. The lease contract contains an itemized list of the leased equipment and the lessee signed a certificate of inspection and acceptance acknowledging receipt of the equipment in good working order, repair, and condition. The lease also contains a lessor’s express disclaimer of any warranty or representation as to title, condition, design, quality or capacity, or as to the workmanship or fitness of the equipment for any particular purpose. The lease further provides that in no event should any defect or any unfitness of the equipment relieve the lessee of its obligation to pay rental as required by the lease. Thus, on the basis of the record before the court at the time of the summary judgment proceeding, no genuine issue of material fact was raised with respect to the alleged defense of failure of consideration.

The affirmative defense of usury also was alleged sufficiently by the defendants’ responses to the plaintiff’s motion for summary judgment and by the sworn allegations contained in the supporting affidavit of the guarantor Dwyer. In his affidavit, Dwyer alleged that the lease agreement was a lease in form only and that the substance of the parties’ transaction was that the plaintiff would make a loan to the defendants at a higher rate of interest than allowed by law.

In determining whether the summary judgment proof established the affirmative defense of usury, it is first necessary to determine whether the lease agreement is a lease or a conditional sales contract. Although the lease grants an option to the lessee to purchase the leased property at the end of the leáse term, it does not obligate the lessee to purchase the equipment nor does it provide that the paid monthly installments will be applied against the sales price. The terms of the contract reflect that it was not a conditional sales agreement, but rather was a bailment with an option granted to. the lessee to purchase the equipment at the expiration of the term at the then fair market value of the property. Securities Life Ins. Co. v. Executive Car Leasing Co., 433 S.W.2d 915 (Tex.Civ.App.—Texarkana 1968, writ ref’d n. r. e.).

Moreover, even if the contract should be construed as a conditional sales agreement, the summary judgment proof did not establish a genuine issue of fact with respect to the defendant’s affirmative defense of usury. The lease agreement provided that the laws of the State of Massachusetts would apply to the construction of the lease, and the plaintiff filed a motion asking that the court take judicial notice of the law of that state which permitted a rate of interest up to 20% interest per annum. The trial court’s judgment may be sustained upon the basis of an implied finding that the law of Massachusetts governed the transaction. Securities Investment Co. v. Finance Acceptance Corp., 474 S.W.2d 261 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref’d n. r. e.). The lease agreement also contains a provision for the recovery of 12% late charges on overdue payments, but this provision does not involve a “lending transaction”, and its inclusion in the contract does not violate the usury statutes. Maloney v. Andrews, 483 S.W.2d 703 (Tex.Civ.App.—Eastland 1972, writ ref’d n. r. e.).

The defendants’ affirmative defense of penalty was alleged only in their unsworn response to the plaintiff’s motion for summary judgment, and no supporting summary judgment proof was offered in support of this defense. However, the question of whether the provisions of the lease agreement provide for a penalty may be determined entirely from the face of the contract. Niles v. Harris County Fresh Water Dist. No. 1-A, 339 S.W.2d 562 (Tex.Civ.App.—Waco 1960, writ ref’d).

The lease agreement sets forth nine separate “events of default” and provides that in the event of any such default, the lessor, at its option, may pursue various remedies which “shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other remedies”. The lease provides that the lessor may in such event “do any one or more of the following:

(1) declare, by written notice to Lessee, the entire amount of rent remaining to be paid over the balance of the lease term of all Equipment then leased hereunder, computed from the date of the occurrence of any such Event of Default (and discounted to its then present value at the rate of six percent (6%) per annum) to be immediately due and payable, whereupon the payment of such amount shall be so accelerated and such amount shall be payable by Lessee forthwith;
(2) proceed by appropriate court action or actions at law or in equity or in bankruptcy to enforce performance by Lessee of the covenants and terms of this Lease and/or to recover damages for the breach thereof;
(3) terminate this Lease upon written notice to Lessee;
(4) whether or not this Lease be so terminated, and without notice to Lessee, repossess the Equipment wherever found, with or without legal process, and for this purpose Lessor and/or its agent may enter upon any premises of or under the control or jurisdiction of Lessee or any agent of Lessee without liability for suit, action or other proceeding by Lessee (any damages occasioned by such repossession being hereby expressly waived by Lessee) and remove the Equipment therefrom, LESSEE HEREBY CONSENTING TO SUCH REPOSSESSION AND WAIVING ANY RIGHT TO NOTICE OR A HEARING OF ANY KIND PRIOR TO SUCH REPOSSESSION.
With respect to any Equipment returned to Lessor, or repossessed by Lessor pursuant to subparagraph (4) above, Lessor may hold or use such Equipment for any purpose whatsoeyer, or may sell same at a private or public, cash or credit sale, or may re-lease same for such term and upon such rental as shall be solely determined by Lessor. In the event of the sale or re-leasing by Lessor of such Equipment Lessee shall be liable for, and Lessor may forthwith recover from Lessee as liquidated damages for breach of this Lease, and not as a penalty, an amount equal to the deficiency, if any, between (X) the Stipulated Loss Value of such Equipment as of the last day of the month next preceding the month in which such Event of Default has occurred, and (Y) the proceeds of any sale or re-leasing of such Equipment, after first deducting from such proceeds all costs and expenses of repossession, storage, repairs, reconditioning, sale, re-leasing, reasonable attorneys’ fees and collection fees with respect to such Equipment. In the event of any such re-leasing the costs and expenses referred to in the preceding sentence shall be deducted from the total amount of the rent payments which Lessor contracts for the use of such Equipment, and the remaining amount, after such deduction, shall be discounted to its then present value at a rate of six percent (6%) per annum and such remaining amount shall constitute the ‘proceeds’ of such releasing for purposes of computing the aforesaid deficiency.”

The lease further provides that in addition to the foregoing, the lessee shall be 'liable for all unpaid rent and other unpaid sums accruing prior to the date of the occurrence of default, for all costs and expenses incurred in the enforcement of the lessor’s rights and remedies, including attorney’s fees and collection fees, and for all sums payable under the indemnification provisions of the lea.se. The lease also provides that if a court of competent jurisdiction should determine that any provision of the default or remedy section of the lease is invalid or unenforceable such would not prohibit the lessor from bringing an action for damages resulting from the lessee’s breach of the lease.

The universal rule for measuring damages for breach of contract is just compensation for the loss or damages actually sustained, and a contractual stipulation which violates the principles underlying this rule will not be enforced. Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952). In the case at bar, the lease contract does not require that the proceeds of a sale or releasing of the equipment be applied to the lessee’s account, and the contract thus permits the lessor to recover the full value of the use of the leased equipment after it has been returned to the lessor’s possession. This court has held that such a measure of recovery far exceeds just compensation and that a lease provision to such effect is unenforceable as a penalty. American Lease Plan v. Ben-Kro Corp., 508 S.W.2d 937 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n. r. e.); United States Leasing Corp. v. Smith, 555 S.W.2d 766 (Tex.Civ.App.—Tyler 1977, writ ref’d n. r. e.).

Since the trial court’s judgment must be reversed and the cause remanded for further proceedings, it is unnecessary to discuss the defendant’s contentions with respect to the sufficiency of the summary judgment proof to support the plaintiff’s recovery of damages.

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