author: EVANS, Justice.

text:
    Mary C. NESHYBA et vir., Appellants, v. Evelyn Marie MAGLIOLO, Appellee.
    No. 16660.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 22, 1976.
    Rehearing Denied June 3, 1976.

      Kronzer, Abraham & Watkins, Robert E. Ballard, Michol O’Connor, Houston, for appellants.
    Mills, Shirley, McMicken & Eckel, Alton C. Todd, Susan Crowley, Galveston, for ap-pellee.
   EVANS, Justice.

This is a negligence action resulting from a two car collision. The accident occurred prior to the enactment of Article 2212a, Tex.Rev.Civ.Stat.Ann., the comparative negligence statute. In response to special issues the jury found both parties to have been negligent and a take nothing judgment was rendered. We reverse and remand.

The accident occurred on January 5,1972, at about 3:00 p.m. on East Bayou Drive in Dickinson, Texas. East Bayou Drive is a paved, black-topped county road about 17½ feet wide slightly “humped” in the middle. There is no center stripe down the middle. On either side there is a narrow shoulder and a drainage ditch. The black-topped pavement “doesn’t have any edges and as you drive sometimes you drive along the edge and it breaks off and it gets narrower as time goes by.”

The plaintiff, Mrs. Neshyba was driving her 1961 Cadillac in a westerly direction along East Bayou Drive on her way home. It was a beautiful day; the weather was clear and the road was dry. She testified that she was driving about 15 miles per hour and was about 150 feet from the entrance to her driveway when the collision occurred.

The defendant, Mrs. Magliolo, driving a borrowed car, was turning right into the south lane of East Bayou Drive from a private driveway. As she proceeded into East Bayou Drive from the private driveway, her left front fender struck the left front fender of the plaintiff’s car. The plaintiff’s car was stopped within a few feet of the point of impact. The defendant’s car was spun to the side and came to rest in the ditch next to the driveway.

The defendant testified that as she drove out of the private driveway there were bushes on both sides which were pretty close to the road. She said she pulled up as far as she could to see; that she looked to the right in the direction of the plaintiff’s vehicle; and then to the left; that “I didn’t see anybody, no cars, no nothing, and I started to accelerate and there she was.”

There is a curve on East Bayou Drive approximately 390 feet east of the location of the private driveway where the collision occurred. The road is straight between these two points and a vehicle approaching from the east is visible to a person in the private driveway at its entrance upon East Bayou Drive. The defendant testified that using a stop watch, she had determined that it required ten seconds to traverse the distance between these points while driving at a speed of 25 miles per hour. She testified that she looked to the left only “a few seconds” indicating that the plaintiff was already on the straight portion of the road.

“Q Now, you were in the driveway so if she is on East Bayou Drive going, generally, east, you come out the driveway, I need to know if you can tell me where she was when you started up from a stop to pull out on the road.
“A She was pretty close to me.
“Q Yes, ma’am.
“A I don’t know how far.
“Q Actually, you never saw her until you collided with her, did you?
“A Like I said, I saw her and then we collided almost simultaneously.
“Q How far back down the road was she when you saw her?
“A She was right there.”

Although there are trees and shrubs lining the ditches along East Bayou Drive, the defendant’s vision was not obscured at the time she determined to proceed onto the road:

“Q. Now, if you were in a position where you had a good view of the road, stopped in a position where the wreck had not yet occurred, the bushes weren’t really obstructing your view, were they?
“A. ... I had pulled up where I could see but I also looked to the right first because that was the lane of traffic I was going to go into, was the one to the right. I was going to turn right into the lane of traffic on that side of the road, and there was no one there.
Then I looked to the left because there are a few houses down there and there was no one there so I put my foot on the gas and just as I did, my car had to go up this little incline, I think, because I hadn’t gotten completely out of the driveway and you have to go up, and just as I did, I hit Mrs. Neshyba, and in the interval I had looked to the left she had come around that corner and when I started to accelerate, and apparently, I did not look this way (indicating) again, but I thought no one was there because it was just an instant.”
“Q. Let me ask you a question and Mrs. Magliolo, I want to be sure I understand you, are you telling the Court you looked to the left down this way, looked back to the right and proceeded to turn right without looking to the right?
“A. I was starting from a dead stop.
“Q. Yes, but that is not the answer. I am going by what you just told the Court, you looked to the left, started turning to the right and did not look—
“A. Slowly.
“Q. —you did not look back to the right?
“A. Yes, sir.
“Q. You did not look in the direction you were proceeding?
“A. That’s right.”

The plaintiff also testified she did not see the defendant’s car until the collision.

“A. ... I was going slow because my driveway was just a short distance from where the collision occurred.
“Q. About how fast were you going?
“A. I would say about 15 miles, perhaps maybe less. Somewhere in there. I can’t be specific there.
All of a sudden I was hit, I don’t know what happened. I didn’t see any cars coming and I didn’t really know what happened. All I know is, I was hit.
“Q. Did you have any idea or any warning somebody was going to run into you?
“A. No, sir, not at all.”

The jury found in response to Special Issues 1 through 7 that the defendant negligently drove her car from the private driveway onto East Bayou Drive; that the defendant negligently failed to keep a proper lookout; that the defendant negligently failed to yield the right of way to the car driven by the plaintiff, and that each act of negligence by defendant was a proximate cause of the collision. The jury further found in response to Special Issues 8 and 9 that the plaintiff’s “failure to keep her car completely within the right half of the roadway” was negligent, which negligence was a proximate cause of the collision, and in response to Special Issues 10 and 11 that the plaintiff failed to keep a proper lookout, which was also a proximate cause of the collision.

In her first point of error the plaintiff contends the trial court erred in submitting the special issue requested by the defendant as to whether she was negligent in failing to keep her vehicle completely within the right half of the road. Plaintiff asserts that this issue, as submitted, assumes as true a material fact which was in dispute.

Special Issue No. 8 is worded:

“Do you find from a preponderance of the evidence that on the occasion in question Mary Neshyba’s failure to keep her vehicle completely within the right half of the roadway was negligence?”

We sustain this point. Although the defendant testified that the collision occurred in the defendant’s half of the road, her testimony as an interested witness merely presented an issue to be determined by the trier of fact. Gevinson v. Manhattan Construction Company of Oklahoma, 449 S.W.2d 458, 467 (Tex.1969).

The defendant was the only witness who testified that the plaintiff was driving down the middle of the road. She admitted that she did not see the plaintiff’s car prior to the incident of the collision. The plaintiff testified that she was on her own side of the road at the time of the collision.

Notwithstanding this testimony by the plaintiff, the defendant contends that the evidence established, as a matter of law, that her vehicle was not entirely within the right half of the roadway at the time of the collision. The defendant points to the plaintiff’s testimony with reference to a blackboard diagram of the collision as follows:

“Q. Is it your recollection that the cars stopped pretty much where they have been indicated on the blackboard?
“A. Here (indicating)?
“Q. Your car?
“A. My car.
“Q. Yes?
“A. Yes.
“Q. Now, you heard Mrs. Magliolo testify about her version of the accident?
“A. Yes.
“Q. Have you not, and about where the cars came in contact with one another? You heard that?
“A. Yes.
“Q. Do you agree with that version?
“A. I think her version, it is — yes, I agree. I do.”

The defendant also contends that in the absence of the blackboard diagram being brought forward with the record, we must presume that the manner of submission of Special Issue No. 8 is supported by the evidence. We are unable to agree with defendant’s contentions. The jury was at liberty to conclude from all the testimony that the plaintiff was driving entirely on her half of the road at the time of the collision; it could have decided from the evidence that testimony indicating plaintiff was driving in defendant’s lane of traffic was based upon the placement of the vehicles after the collision. We have carefully considered all the testimony, including that referable to the blackboard diagrams, and find no evidence which, in our opinion, conclusively establishes the position of the cars at the time of the collision.

The submission of the issues of plaintiff’s contributory negligence, based upon the assumed fact that plaintiff was driving in defendant’s lane of traffic, was of such a nature that an erroneous verdict probably was rendered by the jury not only on the issue of plaintiff’s failure to keep her car completely within her half of the road, but also with respect to the subsequent issues inquiring whether the plaintiff’s failure to maintain a proper lookout was a proximate cause of the collision. Indeed, the defendant affirmatively testified that if plaintiff had maintained her vehicle in her own lane of traffic, the accident would not have occurred. We cannot consider the submission of Special Issue No. 8 harmless since it appears that the court’s erroneous assumption of a disputed fact, probably influenced the jury’s answers to the subsequent issues. See City of River Oaks v. Moore, 272 S.W.2d 389 (Tex.Civ.App. — Ft. Worth 1954, re’d n. r. e.); H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501 (Tex.Civ.App. — San Antonio 1949, ref’d n. r. e.).

Since we have determined that the cause must be remanded for a new trial, it becomes unnecessary that we consider the plaintiff’s remaining points of error asserting that the evidence was legally and factually insufficient to support the jury’s findings with respect to the defensive issues.

Reversed and remanded.


source: Caselaw Access Project

author: GIRE, Justice.

license: Public Domain

text:
    GREAT AMERICAN MORTGAGE INVESTORS, Appellant, v. REPUBLIC OF TEXAS SAVINGS ASSOCIATION, Appellee.
    No. 1371.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 28, 1976.
    Appellee’s Rehearing Denied June 9, 1976.
    Appellant’s Rehearing Granted June 9, 1976.
    Appellee’s Second Rehearing Denied June 30, 1976.

      Clarence Mayer, Dan Trachtenberg, Lapin, Totz & Mayer, Houston, for appellant.
    J. Eugene Clements, David Speed Elder, Sewell, Junell & Riggs, Houston, for appel-lee.
    Roger R. Wright, Jr., Houston, for defendant Liberty Bank (did not appeal).
   GIRE, Justice.

This is an appeal from an order granting a temporary injunction. Suit was brought by appellee Republic of Texas Savings Association (Republic) against Liberty Bank and appellant Great American Mortgage Investors (Great American), seeking a declaratory judgment and injunctive relief.

The suit concerns an “Unconditional Note Purchase Agreement” executed by appellee in favor of Liberty Bank, in which Republic promised to purchase, on or before January 18, 1975, a note owned by Liberty Bank. The maker of the note was Forest Cove Development Company; the note was made payable to Liberty Bank, dated January 20, 1972, and secured by a deed of trust on certain real property. Great American and Liberty Bank entered into a loan participation agreement by which Great American advanced 97½% of the loaned amount and obtained control over decisions affecting the loan transaction. Forest Cove Development Co. defaulted almost immediately, and the note is still in default.

On January 10, 1975 Great American informed Republic that Great American intended to enforce the note purchase agreement. Republic refused to purchase the note. On November 4, 1975 Liberty Bank published notice that the note and deed of trust were to be sold at public auction on the courthouse steps on December 2, 1975. Republic then filed suit in district court against Liberty Bank and Great American, seeking a declaratory judgment determining the rights and obligations of the parties under the loan purchase agreement. Republic’s request for a temporary injunction preventing Great American and Liberty Bank from selling the note and deed of trust pending trial on the merits was granted. Great American has appealed.

Republic has taken the position in its suit for declaratory judgment that it is legally prevented from performing under the loan purchase agreement, but that if the court determines at trial on the merits that Republic is in fact obligated to purchase the note, it will do so. The object of the temporary injunction is to prevent Great American and Liberty Bank from selling the note to a third party until it is determined whether Republic must buy it. Great American, on the other hand, asserts that Republic has breached the loan purchase agreement, and that Great American is therefore entitled to sell the note and deed of trust.

The rights and obligations of the parties under the loan purchase agreement are not at issue. The only issue before this court is whether the trial court abused its discretion in determining that Republic has a probable right which will be subjected to a probable and irreparable injury, for which Republic would have no adequate remedy at law, if Great American is allowed to proceed with the sale of its 9772% interest in the note. Republic asserts it has a right under the loan purchase agreement to purchase the note and deed of trust, if so ordered by the court, and that this right will be destroyed by the sale of the note.

Even if Republic still has such a right, we are unable to see how the probable damage claimed by Republic will be irreparable, or why its legal remedy for any such damage is insufficient. Republic asserts the note will probably be sold for an amount far below its face value, allowing Great American to recover an unreasonably large amount of damages if Republic is later held to be liable for breach of the loan purchase agreement. If Republic is held liable for breach of the contract, Great American’s damages for the breach will be measured according to the general contract principle that the non-breaching party should recover its actual loss resulting from the breach. Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952). This may, but not necessarily will, be measured by the difference between the face value of the note and its fair market value either at the time it is sold or at the time of the breach. In any ease, the price at which Great American sells the note will not conclusively establish its fair market value. Compare P. G. Lake, Inc. v. Sheffield, 438 S.W.2d 952, 956 (Tex.Civ.App. — Tyler 1969, writ ref'd n. r. e.) with R. G. McClung Cotton Co. v. Cotton Concentration Co., 479 S.W.2d 733 (Tex.Civ.App. — Dallas 1972, writ ref’d n. r. e.). In any subsequent suit by Great American against Republic for damages under the contract, Republic will have the opportunity to establish its allegations that the sale was fraudulently or unreasonably conducted, and to offer evidence of the actual or reasonable market value of the note, thereby accurately fixing the amount of its liability. We find nothing in the record which indicates this legal remedy will not adequately compensate Republic for any harm done by the sale. As the situation now exists, the risk of loss is balanced between Great American and Republic. If, as Republic alleges will happen, the sale is conducted in such a manner as to produce an unreasonably low sales price, then the resulting loss will be sustained by whichever is the losing party in the subsequent trial.

Since there was no showing of any probable harm to Republic for which there is no clear, full, and adequate relief at law, the temporary injunction was erroneously granted. Storey v. Central Hide & Rendering Co., 226 S.W.2d 615, 619 (Tex.Sup.1950). The judgment of the trial court is reversed, and judgment is here rendered that the application of Republic of Texas Savings Association for a temporary injunction against Great American Mortgage Investors is denied.

Reversed and rendered.

ON MOTION FOR REHEARING

Great American requests that we dissolve the injunction as it applies not only to Great American, but also to Liberty Bank. Great American asserts that, even though Liberty Bank did not appeal the trial court’s judgment, the interests of the two parties are so intertwined that complete relief cannot be afforded to Great American unless the injunction is dissolved in its entirety. We agree.

Although the loan participation agreement between Great American and Liberty Bank was not made a part of the record, its existence was admitted in Republic’s pleadings. Since Great American retains both a $1⅜% interest in the note and also the managerial control of transactions involving the note, we feel that full and effective relief cannot be granted unless the injunction is also dissolved as to Liberty Bank, who is both the record owner and holder of the note and also the party to the note purchase agreement. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610, 613 (1948); Bates v. First National Bank, 502 S.W.2d 181 (Tex.Civ.App. — Waco 1973, no writ); see Truck Drivers Local 941 v. Whitfield Transportation, Inc., 154 Tex. 91, 273 S.W.2d 857 (1954).

Republic has requested that our judgment be superseded and suspended pending its application for writ of error to the Supreme Court of Texas and, if granted, until the supreme court has had an opportunity to review our judgment. Great American at first acquiesced to this request, asking only that an adequate supersedeas bond be set by this court. Great American has now filed a supplemental brief in which it seems to indicate it is now opposed to our setting a supersedeas bond.

We find no authority for the granting of Republic’s request other than the language in Bichsel v. Heard, 328 S.W.2d 462 (Tex.Civ.App. — San Antonio 1959, no writ), in which the court stated, at page 466:

If we had desired, we could have so worded our judgment, or added a saving clause thereto, which would have prevented it from becoming instantly effective.

We agree with the logic of the Bichsel case. To hold otherwise could, in a case such as this, render the appeal moot prior to final adjudication on appeal. We have elected to exercise our equitable powers and order that, upon tender within 15 days by Republic of Texas Savings Association of a supersedeas bond in the amount of $400,000, our judgment will be suspended and superseded pending application for writ of error to the supreme court. If writ of error is granted, our judgment is to be suspended until the supreme court has exercised its power of review.

Our original judgment is modified so as to dissolve the temporary injunction as it applies both to Great American Mortgage Investors and to Liberty Bank. Upon filing by Republic of a supersedeas bond in the amount of $400,000, the effect of this judgment is to be suspended until final action by the Supreme Court of Texas.


author: PER CURIAM.

text:
    Carol J. GRAVES et al., Appellants, v. GEORGE DULLNIG & COMPANY et al., Appellees.
    No. 15611.
    Court of Civil Appeals of Texas, San Antonio.
    April 28, 1976.
    Gary A. Beahm, San Antonio, for appellants.
    Mark J. Cannan, Lang, Cross, Ladon, Bol-drick & Green, Stephen E. Walraven, Groce, Locke & Hebdon, San Antonio, for appel-lees.
   ON MOTION TO DISMISS APPEAL

PER CURIAM.

Appellees seek an order dismissing appellants’ appeal because of appellants’ failure to comply with the provisions of Tex.R. Civ.P. Rule 354(b) to the effect that counsel for appellant shall promptly give to counsel for appellee notice by mail of the filing of the appeal bond or certificate of deposit in lieu of bond. Appellees insist that this requirement is jurisdictional. We disagree.

The amendments to our rules of procedure, which became effective on January 1, 1976, were clearly intended to facilitate appeals by eliminating requirements which had become, in effect, traps for the unwary and resulted in numerous dismissals of appeals without reference to the merits of the particular cases. Thus, the requirement of notice of appeal was eliminated in most cases, and those cases where notice of appeal is still a prerequisite to perfection of appeal the period during which such notice shall be given has been extended from 10 days to 30 days. Rules 363, 354(c). The amendment of Rule 386 and the adoption of new Rule 21c reflect a conscious attempt to reduce the number of appeals dismissed because of the appellant’s failure to file the record in the Court of Civil Appeals timely.

To hold that the failure to give notice of the filing of the bond or certificate requires a dismissal of the appeal is to conclude that, despite the conscious effort to eliminate or, at least, reduce the number of appeals dismissed without reaching the merits, a new trap has been substituted for an old one. We realize that in some cases the failure to give the required notice may cause inconvenience to the appellee, but our appellate courts have been liberal in allowing amendments of the record and extensions of time for filing briefs. In most cases, that is, the result of failure to comply with the notice requirement results in mere inconvenience rather than injury to the appellee. Unless we are to stubbornly adhere, despite the new spirit reflected by the 1976 amendments to the rules, to the strict manner of interpreting the rules concerning perfection of appeal, we must conclude that the requirement of notice of the posting of security is not jurisdictional.

Our conclusion finds at least some support in the fact that Rule 363, which was also amended, effective January 1, 1976, states that the appeal is perfected when the appeal bond is filed. The giving of the notice of filing of security is not mentioned as a prerequisite to the perfection of the appeal.

The motion to dismiss the appeal is denied.


author: McDONALD, Chief Justice.

text:
    Joe A. IRWIN, Appellant, v. Donald H. WHIRLEY et ux., Appellees.
    No. 5567.
    Court of Civil Appeals of Texas, Waco.
    April 29, 1976.
    Opinion on Filing of Remittitur May 13, 1976.
    Rehearing Denied June 3, 1976.

      Wynne & Wynne, B. J. Wynne, W. Bruce Monning, Wills Point, G. Brockett Irwin, Longview, for appellant.
    Weil, Craig & Fischman, P. C., Christopher M. Weil, Lawrence Fischman, Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Irwin from judgment for $34,960 rendered against him, and for plaintiffs Whirley and wife, in suit for damages for fraud.

Plaintiffs Whirley and wife sued defendant Irwin for reformation and specific performance of an executory contract for deed to a lot; alternatively for damages resulting from defendant’s fraud; and for $5,000 punitive damages. After plaintiffs and defendant entered a contract for purchase of land for $950 plaintiffs paid $750 installments and tendered the balance due to defendant, who did not deliver the deed. Plaintiffs filed this action seeking alternatively the remedies set out. During trial plaintiffs abandoned their plea for specific performance.

Trial was to a jury which found:

1) Plaintiffs and defendant agreed on the sale and purchase of certain property in May, 1969.
2) The description of the property contained in the contract between the parties did not correctly describe the land.
3) Defendant wilfully caused the contract to describe the land incorrectly.
5) At the time of signing the contract defendant represented to plaintiffs that he was owner of the land.
6) Such representation was false.
7) Such representation was made with the intention that plaintiffs rely on same.
8) Plaintiffs reasonably relied on such representation.
9) Plaintiffs made improvements on the property.
10) $3,970 is reasonable cash market value of such improvements.
11) In July and August, 1973 defendant represented to plaintiffs he was owner of the land subject of the May, 1969 contract.
12) Such representation was false.
13) Such representation was made with the intention plaintiffs rely on same.
15) Plaintiffs reasonably relied on same in placing improvements on the property.
16) $1200 was the fair market value of the property in July, 1973.
17) Defendant intended to defraud plaintiffs of their property rights or acted in reckless and wanton disregard of their rights in entering the contract.
18) $30,000 should be assessed against defendant as exemplary damages.
19) Plaintiffs offered to make full payment to defendant under the May, 1969 contract.
20) Plaintiffs demanded defendant perform the May, 1969 contract in 1973.
21) Plaintiffs in July or August, 1973 requested the exact amount due under the May, 1969 contract.
22) Defendant refused to give plaintiffs the exact amount due under the May, 1969 contract.
23) Defendant knew or reasonably should have known he could not convey to plaintiffs good title to the property:
a) At time of signing the May, 1969 contract.
b) At time plaintiffs requested transfer of the property in 1973.

The trial court permitted plaintiffs to file a post-verdict trial amendment requesting $30,000 exemplary damages.

The trial court rendered judgment for plaintiffs against defendant for $34,960 damages ($3,970 value of improvements; plus $1200 value of land; less $210 owed by plaintiffs; plus $30,000 exemplary damages).

Defendant appeals on 7 points contending:

1) The trial court erred in awarding judgment for improvements, purchase price and loss of bargain (The $4,960 actual damages).
2) The trial court erred in awarding judgment for punitive damages because no actual damages could properly be awarded.
3) The trial court erred in rendering judgment for punitive damages in excess of the $5,000 plead for; and erred in permitting plaintiffs to file the post-verdict trial amendment.
4) The trial court erred in submitting certain instructions in its charge.
5) The trial judge erred in failing to disqualify himself in the proceeding.

In May, 1969 defendant Irwin contracted to convey a parcel of real estate (adjoining plaintiffs’ property) to plaintiffs for $950. The contract called for payments of $15.00 per month plus interest. Defendant represented that he owned the property. In 1973 plaintiffs tendered the balance due, and called on defendant to convey the property. He did not do so. He did not own the property. The jury found as detailed, and defendant has not complained of such findings.

Contention 1 complains the trial court erred in rendering judgment for plaintiffs for the $4,960 compensatory damages. Defendant asserts plaintiffs have never made a meaningful offer to reconvey the land. It is undisputed defendant did not own the property in 1969, and did not own the property in 1973. Plaintiffs have no obligation to do anything. They sued for specific performance of their contract and alternatively for damages. They abandoned their plea for specific performance, and recovered on their alternative plea, as they had a right to do. Reynolds Bros. Inc., v. Dodson, (Tex.Civ.App., Corpus Christi) NWH, 380 S.W.2d 678; Rule 47 TRCP; Albright v. Long, (Tex.Civ.App., Amarillo) NWH, 448 S.W.2d 564. The findings upon which the $4,960 damages are based have not been attacked.

Contentions 2 and 3 complain of the award of exemplary damages. Plaintiffs in their trial pleadings asked for $5,000 exemplary damages. The jury awarded $30,000 exemplary damages. The trial court permitted plaintiffs to file a post-verdict trial amendment asking for $30,000 punitive damages.

The jury found that at both the time of the contract in 1969 and at the time plaintiffs demanded conveyance, defendant knew he could not convey good title to the property; that in entering the contract he intended to defraud plaintiffs or acted in reckless and wanton disregard of their rights; that defendant falsely represented he was owner of the land and did so with the intent that plaintiffs rely thereon which they did.

Plaintiffs were entitled to exemplary damages. Briggs v. Rodriguez (Tex.Civ.App., San Antonio) NRE, 236 S.W.2d 510; Tashnek v. Hefner (Tex.Civ.App., Galveston) NRE, 282 S.W.2d 298.

The filing of a trial amendment is within the sound discretion of the trial court and unless the trial court clearly abuses that discretion, no reversible error is shown. Victory v. State, 138 Tex. 285, 158 S.W.2d 760; Milam v. Cooper Co., (Tex.Civ.App., Waco) NRE, 258 S.W.2d 953; Tom’s Toasted Peanuts, Inc., v. Doucette (Tex.Civ.App., Beaumont), 469 S.W.2d 399.

It is not shown that the trial court abused its discretion.

Contention 4 complains of alleged errors in the court’s charge. This case was tried prior to the effective date of the amendment to Rule 272 TRCP.

Defendant has waived any right it may have had to complain of the court’s charge by failing to comply with the requirements of Rule 272 TRCP. Defendant did not present his objections to the trial judge so that he could endorse his ruling and signature thereon as required by Rule 272. Evans Young Wyatt, Inc., v. Hood & Hall Co., (Tex.Civ.App., Waco) NRE, 517 S.W.2d 313 and cases therein cited.

Contention 5 asserts the trial judge erred in failing to disqualify himself in this case.

After verdict and before judgment was entered defendant engaged new counsel who filed motion requesting the trial judge to disqualify himself on the grounds of bias and pecuniary interest. The trial judge (who is also Presiding Judge) assigned the motion to Judge Ted Robertson for action and disposition. Judge Robertson thereafter overruled such motion.

No error has been shown.

All defendant’s points and contentions are overruled.

However, from the record, we are of the opinion that the verdict and judgment is excessive in the sum of $20,000, and that this cause should be reversed for this reason only. Appellee is given 10 days from this date in which to file a remittitur of $20,000. Rule 440 TRCP; Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835; World Oil Co., Inc., v. Hicks, Comm.Appls.Op. Adopted, 129 Tex. 297, 103 S.W.2d 962; Caswell v. Satterwhite (Tex.Civ.App., Waco) NRE, 277 S.W.2d 237; Big Town Nursing Home, Inc., v. Newman (Tex.Civ.App., Waco) NWH, 461 S.W.2d 195. If such remittitur is filed within 10 days, the judgment will be reformed and affirmed.

REVERSED AND REMANDED.

OPINION AFTER FILING OF REMITTITUR

Appellee having filed remittitur of $20,-000.00, as suggested by former opinion of this court, the judgment of the trial court is reformed in conformity with such remitti-tur, and as reformed is affirmed in the amount of $14,960.00. All cost of appeal are assessed against appellant.

REFORMED AND AFFIRMED.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    HARRIS, UPHAM & CO., INC., Appellant, v. John L. BALLANTYNE, Appellee.
    No. 18858.
    Court of Civil Appeals of Texas, Dallas.
    May 6, 1976.
    Rehearing Denied June 3, 1976.

      C. Taylor Ashworth, Jenkens & Gilchrist, Dallas, for appellant.
    Samuel B. Paternostro, Charles J. Pater-nostro, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Harris, Upham & Co., Inc. appeals from a take-nothing judgment in its action against John L. Ballantyne for unjust enrichment.

On October 29, 1973, appellee Ballantyne presented a certificate representing seventeen shares of stock in E. I. DuPont deNem-ours to Harris, Upham & Co., Inc., a stockbroker’s firm in Dallas and requested that the stock be sold. Ballantyne did not state to appellant’s representative at that time whether the certificate represented common or preferred stock; however, such representative, after inspecting the certificate, issued a receipt for common stock. Thereafter, Ballantyne was paid the proceeds of the sale of seventeen shares of common stock, less commissions, in the amount of $3,375.40. The certificate was processed by appellant through its New York office and delivered to DuPont’s transfer agent in New York. At that time it was discovered that the certificate represented preferred stock and not common stock. Consequently, the transfer agent returned the certificate to Harris, Upham & Co. Appellant then processed the certificate, sold the shares at the preferred stock price of $857.82 and credited appellee’s account in the amount of $2,517.58. Upon Ballan-tyne’s refusal to pay the amount, Harris, Upham & Co. filed suit seeking restitution alleging that appellee’s retention of these funds which had been mistakenly paid would constitute unjust enrichment.

Following a nonjury trial, the court found there was insufficient evidence to prove that (1) appellee delivered preferred stock rather than common stock to appellant, and (2) appellee had been unjustly enriched. The court also found that appellant was estopped from asserting its claim because of waiver, and the parties had reached an accord and satisfaction. We reverse the judgment because the court’s finding of insufficient evidence that appel-lee tendered preferred stock rather than common stock is against the great weight and preponderance of the testimony, and there is insufficient evidence of waiver, es-toppel, or accord and satisfaction.

In one point of error, appellant contends that the trial court erred in finding, as a matter of law, that the evidence was insufficient that the appellee tendered preferred stock because appellee was bound by his judicial admission in open court that such stock was preferred. Appellant relies upon a statement made by Ballantyne that to the best of his knowledge a copy of the stock certificate shown to him at the trial was a copy of the same certificate he presented to appellant-company and that the signature appearing thereon was his signature. However, the record reveals that Ballantyne later stated that he was not positive that the copy presented to him was actually the certificate he presented to the appellant and that he would have to see the original to be certain. Appellee admitted receiving a $3,375.40 payment for the sale of the stock, but he never admitted that he knew that the certificate tendered by him represented preferred stock. In fact, he testified that he was relying on the appellant’s experts to tell him the type of stock he owned and to assure that he received an adequate payment. He also testified that he was unexperienced in handling shares of stock and had inherited this certificate from a kinsman. From a review of the entire record, we hold that there was no judicial admission by Ballantyne concerning the nature of the stock certificate in question.

Appellant’s main thrust on appeal is that the trial court erred in finding insufficient evidence that Ballantyne tendered preferred stock since such finding is against the great weight and preponderance of the evidence. Appellant attempted to prove that preferred stock had been tendered by appellee by (1) producing a copy of the preferred stock certificate with the same stock certificate number as that written on a receipt given to appellee at the time of transaction, and (2) showing a series of transactions beginning with appellee’s presentment to appellant’s representative through return of the certificate to appellant by DuPont’s transfer agent. The photostatic copy of a stock certificate representing seventeen shares of preferred DuPont deNemours with John Ballantyne’s signature showing assignment and transfer was introduced into evidence and is before us in its original form. An inspection of this exhibit reveals that the quality of the copy is poor and the certificate number on the copy is unreadable. Appellee contends that since this copy cannot be positively identified by certificate number with the receipt given to appellee at the time of the transaction, appellant has failed to prove that the certificate was the one presented by him. Such argument disregards the fact that on the face of the copy his name, the words “Shares of the Preferred Stock,” and on the back his signature are clearly readable. Although there is no testimony to show appellee did not trade in the stock at any other time, he did testify that this was the only stock he sold that day. Appellant introduced into evidence a series of computer print-outs showing the transactions involving this certificate from the time it was presented by appellee to appellant through the transfer to DuPont’s transfer agent and back to appellant. The date of presentment was October 29, 1973, and the first transaction was recorded on October 31, 1973, by appellant showing receipt of seventeen shares of DuPont common stock. On November 1, 1973, this certificate was deposited with the Depository Trust Company en route to the transferee. The next transaction shows a return of the certificate from the transfer agent and deposit in the Depository Trust Company on November 2, 1973. Appellant’s records were adjusted on November 15, 1973, to reflect preferred instead of common stock. Finally, on December 13, 1973, the preferred stock was sold. The dates of these transactions coupled with the testimony that appellee did not sell other stock on the same day identifies the certificate for preferred stock as the one presented. Appellee did not offer any evidence to show his trading in any other stocks which could create a doubt or confusion. No evidence was produced by appel-lee to show that he tendered a certificate for common stock.

This being a nonjury case, the trial court was the judge of the credibility of the witnesses and the weight to be given their testimony and the findings of the court are entitled to the same weight and conclusiveness on appeal as the verdict of the jury. An appellate court may set aside a finding or judgment of the trial court when either is without any substantial support in the evidence or where such finding is against the great weight and preponderance of the evidence. Where the finding of the trial court is attacked as being against the weight of the competent evidence, we are required to weigh and consider all of the evidence in the case regardless of whether there is some evidence of probative force to support the judgment. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Robinson v. Faulkner, 422 S.W.2d 209, 210-11 (Tex.Civ.App. — Dallas 1967, writ ref’d n. r. e.). Following this well-established rule, we have examined all the testimony and find that the cumulative effect of same demonstrates conclusively that by the great weight and preponderance of the evidence appellee Ballantyne did present a certificate of preferred stock to appellant’s agent on the occasion in question. We, therefore, hold that the trial court’s finding to the contrary is against the great weight and preponderance of the evidence and must be set aside.

For the same reasons, the trial court’s finding that the evidence is insufficient to show that appellee Ballantyne was unjustly enriched is also against the great weight and preponderance of the evidence. Ballantyne attempted to show through monthly statements sent to him by appellant that the appellant traded in commodity accounts in the name of appellee to recover any losses from the stock transaction and thereby destroyed any claim it might have for unjust enrichment. This testimony was rebutted by appellant’s showing that the statements were identified by one account number belonging to another party and were mistakenly addressed to appellee. After considering all of the evidence we hold that appellant adequately showed that it had not traded a commodity account in the name of appellee. Since the great weight and preponderance of the evidence shows that appellee presented a preferred certificate rather than a common certificate it necessarily follows that appellee would be unjustly enriched if allowed to retain the difference in the amount paid to him for common stock and the amount received for preferred stock.

We agree with appellant’s contention that there is insufficient evidence to support the trial court’s finding that appellant had waived its rights to recover the amount paid appellee. In defense of the trial court’s finding, appellee contends that a monthly statement for his account dated August 31,1974, indicating a “write-off” of $2,551.58 constitutes a waiver of any rights appellant may have in this cause against appellee. We cannot agree. A waiver occurs when one dispenses with the performance of something which he has the right to exact, or occurs where one in possession of any right, whether confirmed by law or contract, with full knowledge of the material facts, does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with the right or his intention to rely upon it. Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865 (1958). A review of the record shows that the “write-off” of the account was a mere accounting function with the intent to classify the debt as a bad debt or one of doubtful collectibility. Moreover, appellant’s cause of action was pending and no motion was made to dismiss same, thereby negating any idea of waiver.

Appellee also argues that because of the monthly statement the appellant is prevented by equitable estoppel from asserting this cause of action. We cannot agree. The elements of an equitable estop-pel are that the party claiming it must have been misled by a wilful misrepresentation or concealment of material facts by a knowledgeable party and he must have relied or acted on it to his detriment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952). There is no evidence that appellee relied upon the monthly statement to his prejudice. To the contrary it appears that appellee immediately retained legal counsel upon receipt of this statement and through counsel contacted appellant to resolve the conflict. We, therefore, hold that there is no basis in law for the trial court’s finding of estoppel.

Nor can we agree with the trial court’s finding that appellant’s cause of action was barred by an accord and satisfaction. An “accord” is an agreement whereby one of the parties undertakes to give or perform, and the other to accept in satisfaction of a liquidated or disputed claim arising in either contract or tort something different from what he is or considers himself entitled to; and “satisfaction” is the execution or performance of this agreement. Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex.1969); Texas & P. Ry. v. Poe, 131 Tex. 337, 115 S.W.2d 591, 592 (1938). Wholly missing from the record are two essential elements of accord and satisfaction: (1) An agreement, and (2) consideration. The absence of either of these is fatal to the trial court’s conclusion of law. Pickering v. First Greenville National Bank, 495 S.W.2d 16, 19 (Tex.Civ.App.— Dallas 1973, writ ref’d n. r. e.); Snyder v. Johnson, 256 S.W.2d 898, 900 (Tex.Civ.App. —Amarillo 1953, writ ref’d n. r. e.).

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

Reversed and remanded.


author: HALL, Justice.

text:
    Shearn MOODY, Jr., et al., Appellants, v. STATE of Texas, Appellee.
    No. 5505.
    Court of Civil Appeals of Texas, Waco.
    May 13, 1976.
    Rehearing Denied June 10, 1976.

      Newman, Shook & Newman, Frank G. Newman, Dallas, for appellants.
    A. R. Schwartz, Galveston, for appellee.
   HALL, Justice.

The substantive issue on this appeal is whether the trial court erred after a non-jury hearing in authorizing the ancillary receiver (in Texas) of Empire Life Insurance Company of America to cooperate in the consummation of a reinsurance contract between Empire’s principal receiver (in Alabama) and Protective Life Insurance Company, an Alabama Corporation. We affirm the order.

There has been much related litigation in the courts of Texas and Alabama. Some is reported in Day v. State, 489 S.W.2d 368 (Tex.Civ.App. — Austin, 1973, writ ref., n. r. e.); Empire Life Insurance Company of America v. State, 492 S.W.2d 366 (Tex.Civ.App. — Austin, 1973, no writ hist.); Moody v. Jones, 519 S.W.2d 536 (Tex.Civ.App.— Austin, 1975, no writ hist.); Moody v. State, 520 S.W.2d 452 (Tex.Civ.App. — Austin, 1975, no writ hist.); Moody v. Crook, 520 S.W.2d 958 (Tex.Civ.App. — Austin, 1975, no writ hist.); and Moody v. Moody National Bank of Galveston, 522 S.W.2d 710 (Tex.Civ.App. — Hou. 14th, 1975, writ ref., n. r. e.).

Empire Life Insurance Company of America (hereinafter “Empire”) is an Alabama corporation. Because of mergers with Texas companies, at least one-half of its policyholders are Texas residents. In June, 1972, Empire was found by the courts of Alabama to be insolvent, and was placed in receivership. Immediately thereafter, an ancillary receiver was appointed by the courts of Texas. Substantially all of Empire’s physical assets are located in Texas. A major asset is an interest in the Libbie Shearn Moody Trust, which is administered by the Moody National Bank of Galveston, Texas. This interest was assigned to Empire by Shearn Moody, Jr. (“Moody”), an appellant here, who is the beneficiary of a lifetime income under the Trust. The other appellant, John Shearn Bleker, is Moody’s cousin. He owns 300 shares of Empire stock and holds a $5,000 paid-up Empire life insurance policy. Protective Life Insurance Company is an old-line, conservative company with over $25,000,000 in capital and surplus, and with an excellent reputation. Its home office is in Birmingham.

As a result of Empire’s insolvency, and after unsuccessful attempts to “rehabilitate” Empire, the States of Alabama, Texas, Arkansas, Montana, Nebraska, and Oklahoma suspended Empire’s operations there and proceeded with plans for reinsur-ing the outstanding Empire insurance policies. On June 14, 1974, the reinsurance plan in question was approved by the Circuit Court for the Tenth Judicial District of Alabama, upon the application of the domiciliary receiver. On February 26, 1975, the order challenged on this appeal was rendered authorizing the Texas ancillary receiver to consummate the reinsurance agreement.

The appellants assert a number of reasons why they say the agreement establishes unlawful discriminatory preferences among Empire’s policyholders and creditors. We overrule these contentions.

The agreement is lengthy. The testimony relating to its fairness vel non is voluminous. We need not detail either. The appellants’ argument is erroneously based upon the premise that all Empire policies are alike and must therefore be treated identically in the reinsurance contract. The record shows that the policyholders come from many different companies with many different plans and policies, and it supports the determination that treating the different policyholders identically in the reinsurance plan and ignoring the various policy distinctions would result in unfair discrimination. Rather, the agreement identifies each unusual or unique group and treats it with special provisions formulated to produce equitable benefits for all. It is axiomatic that a different classification and treatment of persons based on real and substantial differences between them is not per se unlawful discrimination. See 12 Tex. Jur.2d 458, Constitutional Law, § 111. Such different treatment is often necessary, as it is here, to a void unlawful discrimination.

The contract in question provides in meticulous detail how the disparate groups of Empire’s policyholders shall be treated. The proof shows it to be much more detailed and carefully thought out than any other reinsurance bid received by the receiver. It guarantees the payment of all death benefits under all of the policies. However, the record shows that Empire’s assets are worth millions of dollars less than the reserve liabilities of the policies Protective assumes under the plan; that Empire is in fact impaired in excess of $10 million and is insolvent in excess of $6 million. To off-set this multi-million dollar gap the reinsurance agreement places a ten-year limitation called a “moratorium” of 35% on all cash benefits that can be exercised voluntarily by the policyholders. In other words, the moratorium reduces the reserves by limiting the amount of cash the policyholders may voluntarily withdraw under the terms of their policies. However, full policy benefits by the time of ending the moratorium are guaranteed by Protective to all accepting policyholders. Under the reinsurance contract, Protective receives no profits until the moratorium has been completely eliminated.

Obviously, policyholders who accept reinsurance and the eventual restoration of all policy benefits which come with it are treated differently from those who reject. But every policyholder has this choice and makes it voluntarily. At any given point in time all policyholders are treated precisely the same in relation to the moratorium. Different treatment as a result of a voluntary election can hardly be classified as arbitrary or unfair discrimination. In any event, the plan provides that Protective will transfer to the receiver assets equal in value to the reserve liability for every policy of every rejecting policyholder less the moratorium amount on each such policy. The Receiver can then pay this amount to the rejecting policyholder. This payment approximates the initial value of the agreement to policyholders who accept reinsurance, and thus produces equal treatment of accepting and rejecting policyholders as closely as it can be done.

In addition to the terms we have cited for payment of claims of rejecting policyholders, the agreement provides for the receiver to retain an additional $2 million for payment of the claims of other creditors which have not been assumed by Protective. Under the testimony, this fund is sufficient to treat all such claims equitably. There is no discrimination.

The appellants claim a violation of constitutional due process because the policyholders were not given notice of the hearing below. The appellants had notice of the hearing and participated in it. Accordingly, they have not suffered from the alleged unconstitutional act they assert, but are simply assuming to champion an alleged wrong of others. The general rule in constitutional litigation, applicable here, is that one may not assert the rights of third parties. Corey v. City of Dallas, 492 F.2d 496, 497 (5th Cir. 1974). The appellants have no standing to raise the point in question. Armenta v. Nussbaum, 519 S.W.2d 673, 679 (Tex.Civ.App. — Corpus Christi, 1975, writ ref’d, n. r. e.).

Moody made a written demand and fee deposit for a jury. He contends the order in question must be set aside because he was not accorded a jury trial. We disagree. The problem facing the court below was one of proper management and control of the assets of a receivership. It turned specifically on whether the proposed reinsurance agreement recommended by the Texas Receiver, an officer of the court appointed by the court, would serve the best interests of the Empire policyholders. Property held by a receiver is in custodia legis. It is the settled rule that questions concerning the management and control of such property are addressed to the sound discretion of the court without the interposition of a jury. McHenry v. Bankers’ Trust Co., 206 S.W. 560, 572 (Tex.Civ.App. — Galveston, 1918, writ ref.); Ferguson v. Ferguson, 210 S.W.2d 268, 269 (Tex.Civ.App. — Austin, 1948, writ ref., n. r. e.), certiorari denied, 337 U.S. 943, 69 S.Ct. 1498, 93 L.Ed. 1747 (1949), rehearing denied, 338 U.S. 853, 70 S.Ct. 81, 94 L.Ed. 523 (1949), rehearing denied 339 U.S. 916, 70 S.Ct. 559, 94 L.Ed. 1341 (1950).

The record does not show an abuse of discretion. The appellants’ points and contentions are overruled. The judgment is affirmed.


text:
    HOUSTON DRAPERY MANUFACTURERS, INC., and Alvin H. Bunch, Appellants, v. FRANK KASMIR ASSOCIATES, INC., Appellee.
    No. 5564.
    Court of Civil Appeals of Texas, Waco.
    May 13, 1976.
    Rehearing Denied June 3, 1976.
    Charles W. Evans, Bedford, for appellants.
    Rosenberg, Kasmir & Willingham, Alan H. Cooper, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellants Houston Drapery Manufacturers, Inc., and Alvin H. Bunch from order of the trial court overruling their pleas of privilege to be sued in Harris County.

Appellee Kasmir Associates, Inc., sued defendant Houston Drapery and Bunch in Dallas County, on sworn account for $1705.70 (plus attorneys’ fees), and for fraud for $72.69; alleged Houston Drapery was the alter ego of Bunch; and sought judgment against both appellants.

Both appellants filed pleas of privilege to be sued in Harris County. Appellee controverted asserting venue in Dallas County under subdivisions 5, 7, and 23.

The trial court found that Houston Drapery was the alter ego of Bunch, and overruled both pleas of privilege.

Appellants appeal contending:

1) Appellees did not prove a cause of action against appellants.
2) Appellees are not entitled to venue in Dallas County under Subdivisions 5, 7, or 23 of Article 1995 VATS.
3) The concept of alter ego is not an exception to Article 1995.

The record contains 1) a credit application from appellant Houston Drapery signed by appellant Bunch as president which recites: “Our firm is financially able to meet any commitments we will make and we expect to pay your invoices according to your terms”; 2) Unsigned invoices mailed from appellee to the corporate appellant reciting: “This invoice and account is due and payable in Dallas, Dallas County, Texas”; and 3) An account card sent by appellee to the corporate appellant stating “All invoices and accounts billed by all branches are due and payable in Dallas, Dallas County, Texas”.

Taken together, the credit application, invoices and account card, constitute a complete agreement between appellee and the corporate appellant on the place of payment. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825; Witter Mfg. Corp. v. Kinetrol Co., (Tex.Civ.App., Dallas) NWH, 342 S.W.2d 809.

There is evidence that the corporate appellant committed a fraud on appellee; and evidence that the corporate appellant was alter ego of defendant Bunch.

Venue in Dallas County was established under subdivisions 5 and 7, Article 1995.

Further this case is before us on a partial statement of facts. Request for admissions and answers thereto considered by the trial court have not been brought forward by appellants.

In the absence of a complete statement of facts (which is appellants’ burden and duty to bring forward), it must be presumed on appeal that the evidence supports the verdict and judgment of the trial court. Baker v. Rutherford, (Tex.Civ.App., Waco) NRE, 293 S.W.2d 669; Englander v. Kennedy, Tex., 428 S.W.2d 806; Levitz Furniture Co. v. State of Texas, (Tex.Civ.App., Waco) NRE, 471 S.W.2d 452; Moore v. Iglesias, (Tex.Civ.App., Waco) NWH, 522 S.W.2d 607.

All appellants’ points and contentions are overruled.

AFFIRMED.


text:
    HILLSON STEEL PRODUCTS, INC., Appellant, v. WIRTH LIMITED, Appellee.
    No. 16685.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 13, 1976.

      Tindall & Foster, Charles C. Foster, Houston, for appellant.
    Bass & Bass, Larry W. Bass, Houston, for appellee.
   EVANS, Justice.

Wirth Limited filed this suit against defendant, Hillson Steel Products, Inc., for breach of contract. After an unsuccessful attempt to serve the defendant’s registered agent, notice of the proceeding was served upon the Secretary of State pursuant to Article 2.11 of the Texas Business Corporation Act. A copy of the citation with accompanying copies of the petition were then properly forwarded by that office to the address of defendant’s registered agent but the envelope was returned with the notation “addressee unknown.” Subsequently a default judgment was entered awarding plaintiff damages in the amount of $151,427.89 and attorney’s fees in the amount of $15,142.00. We reverse and remand.

In its first point of error the defendant asserts that the record does not affirmatively show that the trial court had proper jurisdiction over it. Under this point it argues that there is no evidence independent of the allegations in the petition as to the identity of the defendant’s registered agent for service of process nor as to the location of defendant’s registered office at the time of service. In support of its position the defendant cites Hanover Modular Homes of Taft v. Corpus Christi Bank & Trust, 476 S.W.2d 97, 99 (Tex.Civ.App., Corpus Christi, 1972, no writ).

The citation in the instant case required service upon the defendant “by serving its registered agent for service of process, Eddie Hill, whose address is 1205 Baker Road, Sherman, Grayson County, Texas . .” The sheriff’s return recites the following:

“After diligent search and inquiry, I have been unable to locate Hillson Steel Products, Inc., 1205 Baker Road, Sherman in Grayson County, Texas. Information is that there is no longer a business and at this time we are unable to locate the agent for service Mr. Eddie Hill. New P/S lists Hillson Steel as South of the city of Durant, Okla 405 924-6996.”

The defendant contends that this return shows only that the sheriff tried to serve the defendant, Hillson Steel Products, Inc., at the Baker' Road address and that it does not show an attempt to serve the registered agent, Eddie Hill. It also asserts that the return shows the citation was received one day and returned unexecuted the following day, and argues that this is not the “diligent search and inquiry” required by Rule 107, T.R.C.P. In our opinion, it was not necessary, under the circumstances of this case, that appellee introduce proof independent of the allegations of its petition to establish the identity of the defendant’s registered agent or its registered office. Whitney v. L & L Realty Corporation, 500 S.W.2d 94, 95 (Tex.1973); McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex.1965); Employer’s Reinsurance Corporation v. Brock, 74 S.W.2d 435, 438 (Tex.Civ.App., Eastland, 1934, writ dism’d); McDonald, Texas Civil Practice, Judgments, § 17.23.2, p. 117. We are further of the opinion that the sheriff’s return, considered together with the citation to which it refers, sufficiently complies with Rule 107, T.R.C.P. Brown-McKee, Inc. v. J. F. Bryan & Associates, 522 S.W.2d 958, 959 (Tex.Civ.App, Texarkana, 1975, no writ). Article 2.09A(2), Tex.Bus.Corp.Act, requires that the business office of an individual registered agent must be identical with the registered office of the corporation. We believe a reasonable construction of the sheriff’s return shows an attempt to locate the defendant’s registered agent at his registered office. We further find that the recital in the return of diligent search and inquiry was not defeated by showing that the citation was received one day and returned unexecuted the next.

The defendant further argues that the sheriff’s return is defective in that it does not affirmatively show the “means of service,” citing Watson Van & Storage Co. v. Busse, 451 S.W.2d 557 (Tex.Civ.App., Houston [1st] 1970, no writ). The sheriff’s return recites that the citation, together with the accompanying copies of the plaintiff’s first amended original petition were served “by delivering to Mark W. White, Jr., Secretary of State of Texas as agent for service.” The certificate from the Secretary of State recites that the citation and accompanying copies of the petition “were served upon the Secretary of State . by delivering to and leaving said copies with J. Bruce Hughes, the Assistant Secretary of State.” Article 2.11, Tex.Bus.Corp. Act, provides that service may be had by leaving process with the Secretary of State or with the Assistant Secretary of State. We believe the record reflects the proper mode of service in this respect.

We overrule the defendant’s first point of error.

We next consider the defendant’s third point of error wherein it asserts that the pleadings are not sufficient to support the default judgment. This question may, in our opinion, properly be raised on direct attack by writ of error. See McDonald, Texas Civil Practice, Vol. 4, Sec. 17.23.3, pp. 119-121. The plaintiff’s first amended original petition, upon which the default judgment in question is founded, contains the following allegations:

II.

“Plaintiff will show that on or about September 19, 1974, Plaintiff, acting by and through its duly authorized representative, W. V. Garrett, who resides and operates in Houston, Harris County, Texas, contacted Charles E. Hill, President of Defendant, at his office in Durant, Oklahoma. Such contact was by phone. Plaintiff will further show that during said conversation, Plaintiff discussed with Defendant the availability of 1,000 tons of steel products to be rolled at foreign mills located in Europe. Such discussion included the availability of the products, a description of the products, the price at which said products could be purchased, and the delivery date of said products. Thereafter, the Defendant offered to purchase from the Plaintiff 1,000 tons of steel products to be rolled in foreign mills located in Europe. After verification of the availability of said products, Plaintiff notified Defendant by phone that Defendant’s offer to purchase said products was accepted. Such oral contract was subsequently confirmed in writing by the Defendant, which confirmation is attached hereto as Exhibit ‘A’ and incorporated by reference herein, which confirmation was acknowledged by the Plaintiff pursuant to Exhibit ‘B’ which is attached hereto.”

In this petition the plaintiff further alleged that after ordering the steel products through the European mills but prior to delivery, it was notified by the defendant that delivery would be refused and that the steel products were subsequently delivered to the Port of Houston. It further alleged that since the defendant had refused to accept delivery, it sold the products on the open market at a price substantially lower than the contract price, and it sought recovery of the net sales price based upon the contract represented (Exhibit B above), incidental expenses and attorney’s fees.

It is the defendant’s position that the plaintiff’s petition fails to state a cause of action sufficient to support the default judgment. It points out that instead of accepting the defendant’s written offer of a contract, as set forth in Exhibit A to the petition, the plaintiff made the counter offer represented by Exhibit B, which was not accepted by the defendant. It asserts that the exhibits attached to the plaintiff’s petition establish that the plaintiff’s counter proposal contained material terms which were at variance with and in addition to those contained in the defendant’s offer and that such counter proposal was never accepted by the defendant. It contends that the plaintiff’s counter proposal contained material price changes and also that the terms of the counter proposal shifted the risk of loss from the plaintiff to the defendant.

The plaintiff contends on the other hand that the petition shows a contract to have been established between the parties at the time the defendant gave written confirmation of the parties’ earlier telephone conversation.

The contract sued upon by plaintiff and upon which relief was granted was the plaintiff’s counter proposal represented by Exhibit B to the petition. It was not alleged that this counter proposal was ever accepted by the defendant and the face of the exhibit contract shows that the place for the defendant’s acceptance was left blank and unexecuted. Since the documentary exhibits were attached to and made a part of the petition they must be considered in determining whether the petition alleged a valid cause of action. See Aetna Ins. Co. v. Long, 123 Tex. 500, 72 S.W.2d 588 (1934).

Section 2.207, Tex.Bus. & Com.Code, provides in part:

“(a) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.”

The plaintiff’s counter proposal is clearly “conditional on assent to the additional or different terms.” The terms which are set forth in the counter proposal materially alter the terms contained in the defendant’s written proposal and cannot, in our opinion, be considered mere suggestions or proposals in furtherance of a pre-existing contract. See Comment 1, § 2.207, Tex.Bus. & Com.Code, supra. The allegations of the plaintiff’s petition do not, therefore, reflect a “definite and seasonable expression of acceptance” on the part of the defendant of the terms of the contract alleged and which formed the basis for the relief granted by the default judgment. In view of further proceedings we expressly limit our decision in this respect to the allegations contained in the petition before us. We further state our view that the allegations in plaintiff’s petition are not of a nature as would support an award of attorney’s fees. Meaders v. Biskamp, 159 Tex.. 79, 316 S.W.2d 75 (1958).

In view of our action with respect to defendant’s third point of error, it is unnecessary that we consider its second point of error that the record does not affirmatively show compliance with Rule 296, Texas Rules of Civil Procedure, and Article 2324, Tex.Rev.Civ.Stat.Ann. We accordingly make no determination of the questions raised by that point.

In its fourth point of error the defendant asserts that the record does not affirmatively show compliance with Rule 239a, Texas Rules of Civil Procedure, which requires a party taking a default judgment to certify to the clerk in writing the last known mailing address of the defendant and for the clerk to mail notice of the default judgment to such address. The defendant asserts that the certificate filed by the plaintiff shows the defendant’s registered office as its last known mailing address instead of the address of its place of business in Oklahoma. In view of our determination of the defendant’s third point of error it is not necessary that we decide this point; however, we state our view that Rule 239a, T.R.C.P., does require certification and mailing to the last known address of the defendant notwithstanding that the defendant may have a different office registered for service of process.

The default judgment is set aside and the cause is remanded for further proceedings.


author: COLEMAN, Chief Justice.

text:
    W. K. KING et al., Appellants, v. Donald FLOYD et al., Appellees.
    No. 16702.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 13, 1976.
    Rehearing Denied June 3, 1976.

      Bruce L. James, Houston (Saccomanno, Clegg, Martin & Kipple, Houston, of counsel), for appellant W. K. King.
    Robert R. Truitt, Jr., Midland (Turpin, Smith & Dyer, Midland, of counsel), for appellant First National Bank of Midland.
    James H. Campbell, The Kempers, T. M. Kemper, Houston, for appellees.
   COLEMAN, Chief Justice.

This is an appeal from a judgment entered in a garnishment action. W. K. King obtained a money judgment against Donald Floyd in the County Civil Court at Law No. 1 of Harris County, Texas. On King’s application a writ of garnishment was issued to the Houston Oilers, Inc. The Oilers answered admitting owing $11,422.00 together with interest, to a Donald Wayne Floyd and tendered said amount into the registry of the court interpleading Donald Wayne Floyd. Floyd answered contending that the money in the registry of the court constituted current wages for personal service and, therefore, was exempt from garnishment. The First National Bank of Midland intervened alleging that it was the owner of a judgment against Don Floyd issued by the District Court of Midland County, Texas, and prayed that funds in the registry be applied to satisfy this judgment.

All parties filed motions for summary judgment. The court concluded that the funds were exempt from garnishment and entered summary judgment that the proceeds be released to Donald Floyd.

Vernon’s Annotated Texas Constitution Article XVI, Section 28, states:

“No current wages for personal service shall ever be subject to garnishment.”

Vernon’s Annotated Civil Statutes Article 4099 states:

“No current wages for personal service shall be subject to garnishment; and where it appears upon the trial that the garnishee is indebted to the defendant for such current wages, the garnishee shall nevertheless be discharged as to such indebtedness.”

During the year 1968 Donald Floyd was employed by the Houston Oilers as a professional football player under a written contract. While playing football for the Oilers, Floyd suffered an injury to his right ankle. He was examined by the team physician who certified that he was unable to play football and was placed on the inactive player list on or about August 23,1968. On September 30, 1968, Floyd was notified by the trainer for the Houston Oilers that he had been returned to the active player list. On October 2, 1968, Floyd’s contract was terminated. After that date Floyd did not perform any services for the garnishee.

Thereafter Floyd filed suit against the Houston Oilers alleging a breach of his contract with the Oilers. He alleged that his contract was terminated at a time when he was physically unable to perform as a football player because of an injury suffered in a football game. He specifically alleged Paragraph 14 of his contract which provided that in the event he was injured in the performance of his services under the contract the Oilers would continue during the term of the contract to pay him his salary so long as in the opinion of the club physician the player, because of such injury, was unable to perform the services required of him. The contract provided for an annual salary payable in installments. Floyd recovered a judgment for the balance due on such annual salary. The Oilers appealed and the judgment was affirmed by the Court of Civil Appeals. The Supreme Court of Texas refused an application for writ of error on May 28, 1975. King applied for the writ of garnishment on June 3, 1975.

To qualify the funds deposited in the registry of the court as being exempt from garnishment the evidence must establish that the money was due to Floyd as “current” wages and also as remuneration for “personal service.” The exemption applies without regard to whether the compensation be called “wages” or “salary.” The controlling issue in this case is whether or not the fund is the proceeds of, or compensation for, personal service. The money was not voluntarily left by Floyd in the hands of the garnishee. It never came into the control of Floyd. Thus, the question of whether the funds, if wages, constitute “current” wages is settled. Bell v. Indian Livestock Co., 11 S.W. 344 (Tex.1889); Smith v. Bradshaw, 105 S.W.2d 340 (Tex.Civ.App. — Dallas 1937, no writ history); J. M. Radford Grocery Co. v. McKean, 41 S.W.2d 639 (no writ history).

In the McKean case, supra, the court stated that the exemption statute should be liberally construed in favor of the wage earner. There the court held that a bonus or commission payable to a salesman at the end of year in addition to the salary paid monthly was exempt from garnishment as the current wage for personal service.

In Brasher v. Carnation Co. of Tex., 92 S.W.2d 573 (Tex.Civ.App. — Austin, 1936, no writ history), the court stated that the term “wages for personal service” necessarily implies a relationship of master and servant, or employer and employee, and excludes compensation due to an independent contractor as such. There the eourt found that the party urging the exempt status of a fund due to him under a contract to collect milk for delivery to the Carnation Company occupied the status of an independent contractor, and the fund was not exempt, even though such party did the work personally.

Here we have a contract under the terms of which Floyd agreed to perform personal services for the Houston Oilers, and in return the Houston Oilers agreed to pay him a stated salary for his services during the. football season. Paragraph 3 of the contract reads as follows:

“3. For: the Player’s services as a skilled football player during the term of this contract his agreement not to play football or engage in activities related to football for any other person, firm, corporation or institution during the term of this contract; the option hereinafter set forth giving the Club the right to renew this contract; and all other undertakings of the Player herein; the Club promises, . to pay the Player each football season during the term of this contract

Among the other obligations assumed by Ployd by the terms of the contract is one prohibiting him from engaging in any sport other than football without the consent of the club.

As previously noted, the contract provided that the club would continue to pay the injured player his salary “so long as it is the opinion of the club Physician that the player, because of such injury, is unable to perform the services required of him.” The contract also provides:

“All matters in dispute between the player and the club shall be referred to the Commissioner and his decision shall be accepted as final, complete, conclusive, binding and unappealable, by the player and by the club.”

In Houston Oilers, Inc. v. Floyd, 518 S.W.2d 836 (1975), this court held that the Houston Oilers breached its contract with Ployd and affirmed the judgment of the trial court awarding Floyd $14,240.00, representing the remaining salary to which he was entitled under the terms of the contract. In his petition in that suit Ployd alleged that on the date that he was removed from the injured reserve list and placed on the active player list by the team trainer he was, and as been at all times since, physically unable to play professional football as the result of the injuries received on the 23rd day of August, 1968, in a football contest with the Buffalo Bills in Tulsa, Oklahoma.

The evidence establishes that the judgment which Ployd recovered against the Houston Oilers was for the salary due him under the terms of the contract. The failure of an employer to pay his employee the wages due him under a contract, whether written, oral, or implied in law, would constitute a breach of contract. A judgment recovered by an employee of the agreed compensation for past service performed, whether denominated damages or not, would nevertheless constitute an indebtedness due to the employee from the employer for personal services within the meaning of the Constitution and laws of this State. The contract in this case contemplated the fact that the player might be injured because of the nature of the services which he agreed to render. Payments made to the player after his injury rendered him unable to compete might be considered additional compensation for the services previously rendered. We construe the agreement to continue the salary during the period that the player is physically incapacitated to be in the nature of a bonus for satisfactory service. Under this construction of the contract the funds in the registry of the court are “current wages for personal service” and are exempt from garnishment.

The judgment of the trial court is affirmed.


text:
    CHEROKEE VILLAGE et al., Appellants, v. Sonya Marie HENDERSON, et al., Appellees.
    No. 16698.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 13, 1976.
    Rehearing Denied July 1, 1976.

      Fulbright & Jaworski, David J. Beck, Joe W. Redden, Jr., Houston, for appellants; Lancaster Smith, Dallas, of counsel.
    Harold Lloyd, Houston, for appellees.
   EVANS, Justice.

A venue case.

This action was brought by appellees in Harris County, Texas, to recover damages for personal injuries allegedly sustained by Sonya Marie, a minor, when she fell into a hole filled with scalding hot water on the premises of the Cherokee Village Apartments in Dallas, Texas. Named as defendants were Cherokee Village, also known as Cherokee Village I, alleged to be a general partnership; certain individuals including J. E. Lieppman and Arthur S. Goldberg alleged to be general partners doing business as Cherokee Village; Arthur S. Goldberg, Trustee, as title holder of the Cherokee Village partnership property; Symbol, Inc., a Texas corporation, responsible for the maintenance and management of the apartments, and certain named employees of Symbol, Inc. Certain of the named defendants, appellants herein, filed pleas of privilege and pleas of forum non conveniens which were controverted by the appellees upon Subdivision 4, Article 1995, Tex.Rev. Civ.Stat.Ann. After a hearing the trial court overruled appellants’ pleas and this appeal was perfected. We affirm.

In their first point of error appellants assert that appellees failed to prove a bona fide claim against J. E. Lieppman, the only defendant who resides in Harris County. Under this point they argue that on August 13, 1974, the date of the accident which is the basis of plaintiffs’ action, a trust had been created by declaration dated December 3, 1970, under which legal title to the Cherokee Village Apartments was vested in Arthur S. Goldberg, Trustee, and that defendant J. E. Lieppman was a beneficiary of that trust. Appellants assert that title to the Cherokee Village property had previously been held by a partnership known as “Cherokee Village” under a partnership agreement dated May 1, 1970, as amended by purchase agreement dated November 25, 1970, but that such partnership ceased to exist in December, 1972, when the trust, through its trustee, Arthur S. Goldberg, purchased the interests of the original partners who withdrew from the partnership.

The declaration of trust dated December 3, 1970, is entitled: “BUY AND SELL AGREEMENT AND DECLARATION OF TRUST PERTAINING TO INTERESTS IN A PARTNERSHIP KNOWN AS CHEROKEE VILLAGE, ARTHUS S. GOLDBERG, TRUSTEE.” It recites that the named parties, including J. E. Lieppman and Arthur S. Goldberg, are owners of undivided interests in a partnership known as Cherokee Village organized under the laws of the State of Texas and that said owners “have accepted title to their interests in said partnership in the name of Arthur S. Goldberg, Trustee”; that the parties’ respective undivided interests in the partnership property are in the percentages set forth opposite their names, and that such persons are the beneficial owners and holders of said interests in the partnership, and that “said original partners shall complete construction of the apartments owned by Cherokee Village and shall continue to manage said apartments on behalf of the entire partnership”; that “Title has been taken in the name of Arthur S. Goldberg, Trustee,” and that such trustee shall continue to serve in said capacity until his death, resignation or inability to serve, with provision for the designated successor trustee; that the trustee may from time to time receive distribution of partnership properties and incur expenses on behalf of the beneficiaries; that the trustee will not be the manager of the property held by the partnership but may in his discretion direct the managers of the partnership to make disbursements directly to the beneficiaries; that in accordance with their purchase agreement dated November 25, 1970, the trustee had agreed after January 3,1971, to purchase an additional 45% of the partnership interest and that the beneficiaries agreed they would each pay their pro rata share of such sum; that the purpose of the agreement was to place the title of a partnership interest in Cherokee Village in a trustee and to set forth his duties and liabilities and the rights of the beneficiaries; that the instrument was not intended to create a partnership nor was it intended to actively carry on a trade or business. Under this provision it was further agreed that no party had the right to incur any liability or obligation on account of any other party except as specifically set forth and that the trustee had no power to borrow any money or incur any obligation on behalf of any other party unless such power was conferred by that instrument or by another written instrument executed by all the parties. The parties further agreed that they would “pay pro rata for their share of the capital investment and shall share profits and losses pro rata in accordance with the percentage of their interest as hereinbefore set forth.” (emphasis ours)

In December 1972 appellants, among other parties, executed an instrument purporting to be an amendment to the agreement of general partnership of Cherokee Village. Under that agreement the three original partners withdrew from the partnership and Article XI of the partnership agreement dated May 1,1970, was amended so as to delete the names and percentages for the three original owners and substituted therefor was the following:

PARTNERS’ SHARE OF PROFITS
“The net profits or net losses of the partnership shall be distributable to and chargeable as the case may be to each of the partners in the following proportions:
“Hartin-Henry Corp. 18.00%
Murray Munves 38.16%
Arthur S. Goldberg 6.17%
James R. Alexander 6.17%
Herman Ulevitch 9.00%
Jerry Lurie 9.00%
J. E. Lieppman 4.50%
Charles S. Fromm 9.00%
TOTAL 100 % ”

This instrument further provided that except as specifically amended all of the terms, covenants, provisions and conditions contained in the original agreement of partnership, remained in full force and effect. On December 29, 1972, an assumed name certificate was executed, and filed for record on October 9, 1973, for the firm name of Cherokee Village which indicated the names of the individuals conducting such business to be as follows:

“Hartin-Henry Corp., General Partner Murray Munves, General Partner Arthur S. Goldberg, General Partner James R. Alexander, General Partner Herman Ulevitch, General Partner Jerry Lurie, General Partner J. E. Lieppman, General Partner Charles S. Fromm, General Partner”

On June 15, 1973, Cherokee Village I Apartments entered into a “Management Agreement” with appellant, Symbol, Inc., whereby Symbol was appointed the exclusive agent for the management of the apartments. There was testimony that on April 13, 1974, the date appellee was injured, the employees of Symbol, Inc. had dug a hole by one of the apartment buildings to repair a leaking hot water line. At the end of the day the hole was left uncovered even though the leak had not been stopped and the workers knew that the hole would fill up with hot water when they left.

Appellee filed this suit on January 24, 1975. In October 1975 the appellants, who allegedly conducted business as Cherokee Village, executed and filed of record two instruments entitled “CERTIFICATE OF WITHDRAWAL FROM BUSINESS OPERATING UNDER ASSUMED NAME.” These instruments recite that the previously filed assumed name certificate was erroneous and that:

“the true owner of Cherokee Village is Arthur S. Goldberg, Trustee. Accordingly, said persons now desire to correct the records to show the proper ownership and give notice that they are not the owners of said business and now desire and hereby do withdraw from said business, and hereby give notice that they are no longer connected with or interested in said business and they are nowise liable for any of the debts of the said business contracted from and after December 29, 1972.”

Arthur S. Goldberg, Trustee, also executed and filed in October 1975 an assumed name certificate stating that Cherokee Village and Cherokee Village I is a business conducted by himself and that “said ownership was effective from and after December 29, 1972.” At the hearing Goldberg testified that the previous filings were erroneous and that upon the withdrawal from the partnership of the three original partners in December 1972 he, as Trustee, had commenced trading as Cherokee Village.

Appellants concede that Cherokee Village was initially conducted as a partnership but argue that the partnership ceased to exist in December 1972 when Arthur S. Goldberg purchased the interests of the three initial owners. They contend that a trust relationship is clearly evident from the terms of the declaration of trust dated December 3, 1970; that the terms and provisions of that instrument are clear and unambiguous and not subject to variance by parol, and that the testimony of Arthur S. Goldberg was uncontroverted and uncontradicted that the assumed name certificates indicating a partnership were erroneous. We cannot agree with these contentions.

The terms and provisions of the declaration of trust dated December 1970, considered together with the terms of the original partnership agreement dated May 1, 1970, as amended by the purchase agreement dated November 25,1970, evidence an intention between the parties to carry on a business enterprise for mutual profit and with joint and several responsibility, according to their pro rata interests, for the debts incurred in the conduct of the business.

Notwithstanding the recitations in the declaration of trust instrument that it was not the intention of the parties to create a partnership nor to actively carry on a trade or business, there was evidence from which the trial court could have concluded that a continuation of the existing partnership was intended. The terms of the instrument reflect the intent of the parties that the original partnership agreement would remain in effect and that they would share pro rata in the capital investment and in the profits and losses of the enterprise. Two years after the execution of the declaration of trust, in December 1972, the original partnership agreement was amended “so as to provide for the withdrawal of certain partners from the partnership and to transfer the interests of the withdrawing partners to other current partners.” By virtue of the December 1972 agreement, the-original partnership agreement was expressly amended so as to provide that the “net profits or net losses of the partnership shall be distributable to and chargeable as the case may be” to the then current partners. It is difficult to conceive how the parties could have more effectively provided for the continuation of their business association as a partnership under the earlier partnership agreement.

Article 6132b, the Texas Uniform Partnership Act, Section 6, defines a partnership as “an association of two or more persons to carry on as co-owners a business for profit.” Section 7 of this Act sets forth certain criteria for determining the existence of a partnership under the Act. Under this section it is provided that with the exception of certain circumstances not here existent, the receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner of the business. Article 6132a, Tex.Rev.Civ.Stat.Ann., the Texas Uniform Limited Partnership Act, sets forth the method by which limited partners, who do not wish to be bound by the obligations of the partnership, may carry on a business as a limited partnership. Article 6138A, Tex.Rev.Civ.Stat.Ann., sets forth the requirements for creation of a Real Estate Investment Trust. Section 8 of that Act provides for limited liability of the shareholders of such a trust. Appellants here do not contend that there was compliance with the requisites of either of these statutes.

Where two or more persons associate themselves as co-owners of a business for profit they become jointly and severally responsible for obligations incurred in the conduct of such business unless they have established, under some applicable statute, an association which the law recognizes as providing limited personal liability.

“ ‘Whatever may be the rule in other jurisdictions, it seems to be well settled by the decisions of our courts that, when two or more persons associate themselves together for the purpose of carrying on a business enterprise for their mutual profit, the persons so associated are jointly and severally responsible for the debts incurred in the conduct of such business unless such business association is organized as a limited partnership or a corporation under our statute providing for such organizations, or specially contracts with those with whom the association deals that only the funds and property of the association shall be held liable.’ ” [Thompson v. Schmitt, 115 Tex. 53, 274 S.W. 554, 560 (1925), quoting Chief Justice Pleasants in Wells v. Mackay Telegraph-Cable Co., 239 S.W. 1006, (Tex.Civ.App.).]

The question of the existence of a partnership is one of fact. Fuller v. Fuller, 518 S.W .2d 250, 251 (Tex.Civ.App. — Beaumont 1974, writ ref d n. r. e.). Subsequent to the execution of the declaration of trust instrument, the business association continued under the firm name “Cherokee Village” and assumed name certificates were executed and acknowledged by appellants in which they designated themselves general partners of the business. Partnership income tax returns with similar listings were filed in the name of Cherokee Village for the years 1972 and 1974. Thus, the evidence, including the testimony of Arthur S. Goldberg, an interested witness, raised a fact issue for the trial court’s determination as to whether a partnership existed on the date of the accident.

Article 7425b-2, the Texas Trust Act, expressly provides that a “trust” within the meaning of the Act does not include “so-called ‘Massachusetts Trusts’ or similar business trusts . . . ” In our opinion the trial court was at liberty to conclude from the evidence that the intent of the parties was to continue their partnership association in effect, notwithstanding the fact that legal title and certain management obligations were placed in the designated trustee for the association. The evidence supports the trial court’s implied finding that the declaration of trust was merely a mechanism devised for the convenience of co-owners operating a business for profit. Adkins v. Essler, 38 S.W.2d 411 (Tex.Civ.App. — Austin 1931, no writ). The court was justified in deciding from all of the facts surrounding the declaration of trust that it was not the intent of the parties to create a “true trust” relationship within the meaning of the Texas Trust Act. See Wells v. Mackay Telegraph-Cable Co., 239 S.W. 1001, 1008-10 (Tex.Civ.App. — Galveston, 1922, no writ) distinguishing Connally v. Lyons, 82 Tex. 664, 18 S.W. 799 (1891); 13 Am.Jur.2d, Business Trusts, Sections 10 and 11, pp. 385-387.

The trial court was not bound to accept as conclusive evidence of the parties’ intent the written statement that a trust was intended nor their disclaimer of an intent to actively carry on the business as a partnership. McCamey v. Hollister Oil Co., 241 S.W. 689 [Tex.Civ.App. — Port Worth 1922, aff’d, 115 Tex. 49, 274 S.W. 562 (1925)]; Means v. Limpia Royalties, 115 S.W.2d 468 (Tex.Civ.App. — Fort Worth 1938, writ dism’d). There was evidence of probative force from which the court could have found that the parties had agreed to combine their efforts, as principals, to carry on a commercial enterprise in the firm name of Cherokee Village and to share in the profits and losses of the business. Upon such findings, the court properly decreed a partnership existed as to third parties. Watson v. Edinburg Securities Co., 68 S.W.2d 644 (Tex.Civ.App. — San Antonio 1934, writ dism’d). We hold there was ample evidence before the court to support its implied finding that a partnership did exist at the time of the accident and that J. E. Lieppman as a member of the partnership was jointly and severally liable for the partnership’s obligations. Fuller v. Fuller, supra; Conrad v. Judson, 465 S.W.2d 819 [Tex.Civ.App. — Dallas 1971, writ ref’d n. r. e., cert. denied 405 U.S. 1041, 92 S.Ct. 1312, 31 L.Ed.2d 582 (1972)].

We overrule appellants’ first point of error.

In their second point of error appellants assert the trial court erred in overruling their pleas of forum non conveniens. Appellants concede that the doctrine of forum non conveniens has traditionally been invoked with respect to claims arising in another state or country where the parties are before a court which, under the general jurisdiction statutes, has power to determine the type of controversy involved. See McDonald, Texas Civil Practice, § 1.07.5, p. 40; Flaiz v. Moore, 359 S.W.2d 872, 875 (Tex.1962). However, appellants argue that the doctrine should be applied here pursuant to the provisions of Rule 257, Texas Rules of Civil Procedure, which provides in part that a change of venue may be granted in civil cases upon application of either party “ . . . (c) for other sufficient cause to be determined by the court.” Appellants argue that the forum chosen by the plaintiff is extremely inconvenient to all of the parties and to all of the witnesses, and that the refusal of the trial court to order a change of venue constituted an abuse of its discretion. We overrule appellants’ contention. An order denying a motion for change of venue predicated upon the provisions of Rule 257 is interlocutory and nonappealable. Byer v. Dallas Power & Light Co., 290 S.W.2d 948, 950 (Tex.Civ.App. — Dallas 1956, no writ); Long v. Humble Oil & Refining Co., 377 S.W.2d 844, 846 (Tex.Civ.App. — Texarkana 1964, writ ref’d 380 S.W.2d 554 (Tex.)). Where the parties are residents of this State the plaintiff has the choice of venue and the doctrine of forum non conveniens is not available to defeat the plaintiff’s right. Garrett v. Phillips Petroleum Co., 218 S.W.2d 238, 240, (Tex.Civ.App. — Amarillo 1949, writ dism’d); National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021, 1024 (1943).

The judgment of the trial court is affirmed.