author: BREWSTER, Justice.

text:
    Norma Jean BRADLEY, Appellant, v. George BRADLEY et al., Appellees.
    No. 17740.
    Court of Civil Appeals of Texas, Fort Worth.
    July 23, 1976.
    Rehearing Denied Sept. 10, 1976.

      Patrick A. Myers, Jacksboro, for appellant.
    Stark & Barnhart, Inc., and Richard S. Stark, Gainesville, for appellees.
   OPINION

BREWSTER, Justice.

This suit was originally instituted by Norma Jean Bradley against her former husband, George Bradley, and the Veterans’ Land Board, seeking a judgment decreeing her to be the owner of a ½ interest in the 169 acre Cooke County farm that is here involved. She also sought a judgment partitioning the farm among its joint owners. The suit was filed on September 13, 1972. In October, 1972, H. E. Bradley and wife, Rowena, the mother and father of George Bradley, intervened alleging that they had made all payments of the purchase price for the farm and that they were the owners of it. H. E. Bradley died on March 31, 1974, and the case proceeded to trial with the plaintiff being Norma Jean Bradley and the two defendants being George Bradley and his mother, Rowena Bradley.

A jury trial was had and the trial court granted the defendants’ motion to disregard the jury’s answers to certain issues and also granted defendants’ motion for judgment non obstante veredicto and rendered judgment decreeing that the plaintiff, Norma Jean Bradley, take nothing by her suit and that the defendants, Rowena Bradley and George Bradley, each be decreed to be the owners of a ½ undivided interest in the farm.

This appeal is brought by the plaintiff, Norma Jean Bradley, from that decree.

We reverse and render judgment decreeing that the plaintiff, Norma Jean Bradley, is the owner of a ½ interest in the remainder of the 169 acre Cooke County farm that is involved in this suit; that George Bradley is the owner of the other V2 interest in the remainder of said farm; and that Rowena Bradley owns a life estate for the balance of her lifetime in the entire 169 acre farm.

It was undisputed that in the year 1953 George Bradley, a 29 year old resident of Texas, a Veteran, while married to plaintiff, then age 20, entered into a contract of sale and purchase with the Texas Veterans’ Land Board for the purchase of 169 acres of land in Cooke County, Texas. Four hundred ($400.00) dollars of the five thousand ($5,000.00) dollar sale price was paid down in cash. By the aforementioned contract George Bradley obligated himself to pay to the Land Board an additional sum of four thousand six hundred ($4,600.00) dollars over a period of forty years with interest thereon at the rate of 3% per annum.

During the trial the plaintiff and the two defendants testified. Their testimony was substantially the same to the effect that: H. E. Bradley had had a nervous breakdown; he and his wife, Rowena, desired to move on to a farm and live there; they were not able to finance the ordinary purchase of a farm; their son, George Bradley, because of being a U. S. Army war veteran from Texas was eligible for a loan from the Texas Veterans’ Land Board with which to finance a farm under Art. 5421m, V.A.T.S.; George Bradley was a young preacher and was himself not able to finance the purchase of a farm or to make payments on one; H. E. Bradley and Rowena Bradley orally agreed with George Bradley and his wife, Norma Jean Bradley, prior to the purchase of the farm in question, that George Bradley would use his eligibility for a loan from the Veteran’ Land Board for the purpose of financing the purchase of the farm and would give the parents the full use, occupancy and possession of the farm during their lifetimes plus the right to all of the income from the farm during their lifetimes, and in return therefor the parents agreed that they would make the down payment on the purchase of the farm and that they would make the installment payments that later fell due on the contract of purchase, would pay the taxes on the farm and would pay for such improvements as they desired to make on the farm during the time they had possession of it. They agreed that after the parents both died, George Bradley was to get possession of the farm. Norma Jean Bradley knew of and approved the agreement.

Pursuant to the agreement George Bradley did use his eligibility for a loan under Art. 5421m, V.A.T.S., to finance the purchase of the farm involved and H. E. and Rowena Bradley made the down payment of $400.00 on the farm and immediately after the closing they went into possession of the premises. They have since possessed and occupied the property, made all payments to the Land Board (paying the entire loan off), rendered and paid all ad valorem taxes and paid all insurance premiums, and have made and paid for valuable improvements on the farm. Under the agreement of the parties the parents could make all the improvements they desired to make on the property as long as they paid for them. The contract with the Veterans’ Land Board for the purchase of the farm has at all times been in the name of George Bradley.

On the 31st day of March, 1967, plaintiff obtained an interlocutory judgment of divorce from George Bradley in the Superior Court of the State of California in and for Humbolt County. Norma Jean Bradley was awarded custody of their six minor children. The personal property of the parties was divided, but no formal agreement nor disposition was made by the parties or by the court concerning the 169 acre farm. After the divorce George Bradley’s parents continued to occupy and possess the farm property and continued to make all payments thereon. The divorce became final on April 1, 1968.

George Bradley and Norma Jean Bradley, after the divorce, discussed the farm. Norma Jean was unable to get George to put any part of the farm into her name, so in 1972 she obtained a lawyer and filed this suit. There was then nothing of record to show her to be owner of an interest in the land.

Plaintiff instituted this suit in September, 1972, against George Bradley and the Veterans’ Land Board. In October, 1972, the Bradleys (the parents) intervened in the suit claiming under a resulting trust. Shortly thereafter H. E. and Rowena Bradley paid the balance of the Land Board debt and the Land Board conveyed the record title of the farm to George Bradley, subject to this suit which was then pending. Immediately thereafter George Bradley deeded the record title to his parents. At about the same time H. E. Bradley executed a will devising all of his interest in the property to George Bradley, one of his six children. H. E. Bradley died on the 31st day of March, 1974, and his will was duly admitted to probate without contest. The Veterans’ Land Board was dropped from the case and so was H. E. Bradley after he died. By trial time Norma Jean Bradley was plaintiff and George and Rowena Bradley (his mother) were the only defendants.

Jury findings were as hereafter set out.

Issues Nos. 1, 1(a) through 1(h): H. E. and Rowena Bradley and George Bradley agreed that since H. E. and Rowena Bradley did not have the cash resources to finance the purchase of a farm that George Bradley would finance the purchase of the 169 acre farm involved by using his eligibility to make such a purchase under the Veterans’ Land Board Act (Art. 5421m, V.A.C. S.).

Issues Nos. 1, 1(a) through 1(h): The parties agreed to acquire the farm for use as a retirement home for H. E. and Rowena Bradley throughout the balance of their lifetimes and that after their deaths George Bradley would have the farm as his retirement home. A part of the agreement was that H. E. and Rowena Bradley would make the down payment and all subsequent installment payments to the Veterans’ Land Board on the purchase of the farm. The parties further agreed that all income derived from the farm during their lifetimes would belong to H. E. and Rowena Bradley. George Bradley was not in a financial position to make any of the farm payments himself.

Issue No. 2 and its subdivisions: Prior to the time the farm was actually purchased in October, 1953, the plaintiff, Norma Jean Bradley, who was then the wife of George Bradley, had knowledge of and concurred in the entire agreement.

Issue No. 11: The down payment on the farm made to the Veterans’ Land Board by H. E. and Rowena Bradley was not intended by them to be a gift to their son, George Bradley, or to Norma Jean Bradley.

Issue No. 12: The installment payments made by H. E. and Rowena Bradley to the Veterans’ Land Board were not intended by them to be gifts to George Bradley.

Issues Nos. 14, 15, 16, 16A: H. E. and Rowena Bradley relied on the agreement between the parties and with George Bradley. They also relied on Norma Jean Bradley’s concurrence in the agreement and by virtue of such reliance they made the payments on the farm, paid the taxes thereon and made improvements on the farm.

Issues Nos. 17, 18: Norma Jean Bradley did not waive her right to an interest in the farm by failing to assert her claim to it in the divorce case. She did not waive her claim to an interest in the farm by failing to pay her proportionate part of the payments due the Veterans’ Land Board that fell due after the divorce decree.

Issue No. 19: Norma Jean Bradley did not delay for an unreasonable length of time in asserting a claim to the property.

Issue No. 22: Norma Jean Bradley would not be unjustly enriched by recovering a V2 interest in the farm under the facts of this case.

Issue No. 23: H. E. and Rowena Bradley held continuous and peaceable adverse possession of the farm for more than 10 years before the suit was filed.

Issue No. 24: The farm was not fully enclosed by H. E. and Rowena Bradley.

Issue No. 25: H. E. and Rowena Bradley constructed improvements on the farm from its purchase to now.

Issues Nos. 26, 27: The improvements have enhanced the value of the farm by $9,000.00.

Issue No. 28: George Bradley did not give his interest in the farm back to H. E. and Rowena Bradley.

Issue No. 30: George Bradley and Norma Jean Bradley did not agree before the Veterans’ Land Board contract was entered into to convey the farm to H. E. and Rowena Bradley on them performing George Bradley’s obligations under the Veterans’ Land Board contract.

Issue No. 31: H. E. and Rowena Bradley occupied the farm as implied lessees from 1953 until January 23, 1972.

Issue No. 32: The average monthly rental value of the farm house from 1953 to 1972 was $20.00.

Issue No. 33: The average monthly rental value of the farm from 1972 through 1975 was $36.66.

Issue No. 34: H. E. and Rowena Bradley collected $1,875.00 from grass leases on the farm from 1953 to 1972.

Issue No. 35: They collected $1,400.13 from oil and gas leases from 1953 to 1973.

Issue No. 36: They collected $175.00 from pecan harvest.

Issue No. 37: The farm is susceptible of being partitioned in kind.

After the jury returned its verdict as indicated above, the defendants moved that the court disregard the jury answers to issues Nos. 11 and 12, wherein the jury found that H. E. and Rowena Bradley did not intend the $400.00 down payment and the later semi-annual installments they paid on the purchase price of the farm to be gifts to their son, George Bradley. Defendants also asked the Court to disregard the jury’s answers to Issue No. 24 where they answered “No” to that issue inquiring whether H. E. and Rowena Bradley fully enclosed the farm. Defendants also moved to disregard the jury’s answer of “No” to issue No. 30 inquiring whether George and Norma Jean Bradley agreed prior to the time George signed the Veterans’ Land Board contract to deed the 169 acre farm to H. E. and Rowena Bradley conditioned on their performing all of George Bradley’s obligations under that contract. They also moved to disregard the jury’s answer of “Yes” to Issue No. 31 inquiring whether H. E. and Rowena Bradley occupied the farm as implied lessees from 1953 to January 23, 1972.

In addition to that motion the defendants, after the jury verdict was returned, filed a motion for judgment non obstante verdicto. That motion was based on eight separate grounds, they being: (1) that it was undisputed that George and Norma Jean Bradley gave the equity of redemption to H. E. and Rowena Bradley as long as they lived, and when George Bradley deeded the farm to them per the agreement it was theirs and the one-half interest he has now was obtained by inheritance from his father and is now George’s separate property; (2) pursuant to the agreement H. E. and Rowena Bradley were put in possession and relying on the promises of George and Norma Jean Bradley proceeded to pay for the property, pay the taxes and insurance, and to make valuable improvements and by reason thereof Norma Jean is estopped to claim any part of the land; (3) plaintiff’s action is barred by the four year limitation statute; (4) she waived her right to claim any part of the land by not making any part of the payments on it after the divorce; (5) plaintiff’s claim is barred by laches; (6) plaintiff cannot recover because if she did she would be unjustly enriched; (7) the undisputed evidence is that the down payment and later payments on the purchase price was a gift from H. E. Bradley and wife to their son, George Bradley, and the land was therefore his separate property; (8) plaintiff is not entitled to a partition because she admits that under the agreement of the parties Rowena is entitled to retain possession of the property for her lifetime.

The order entered by the trial court decreed that it in all things sustained defendants’ motion to disregard jury findings and in all things sustained their motion for judgment non obstante veredicto.

Because the trial court by wording its order as it did sustained each of the grounds in the two motions referred to the plaintiff on this appeal must show, in order to get relief, that the trial court was not authorized to render the judgment that he did render based on any of the grounds set out in the motions. McKelvy v. Barber, 381 S.W.2d 59 (Tex.Sup., 1964); Hudson v. Buddie’s Super Markets, Inc., 488 S.W.2d 143 (Tex.Civ.App., Fort Worth, 1972, no writ hist.), and LeJeune v. Gulf States Utilities Company, 410 S.W.2d 44 (Tex.Civ.App., Beaumont, 1966, ref., n. r. e.). The plaintiff in her brief has undertaken to show that the judgment appealed from could not be properly granted on any of the grounds urged in the two motions.

We are convinced that the trial court erred in rendering the judgment that it did render in this case.

If the agreement of the parties as found by the jury verdict, and, actually, as was established by the undisputed evidence in the case had been in writing a part of the problems involved here would have been removed.

Under the agreement of the parties as is established by both the verdict and the undisputed evidence, upon the purchase of the farm involved, H. E. and Rowena Bradley were to have a life estate in the farm to last for the balance of their lives. The remainder in the farm was to be owned by George Bradley and he would have no right to possession of the property until both of his parents had died.

This agreement was supported by consideration. George Bradley, by virtue of his being a U. S. Army veteran from Texas, was eligible under Art. 5421m to get a loan from the Veterans’ Land Board with which to purchase the farm. None of the parties were financially able to finance the purchase of the farm in the absence of such a loan. None of the other parties to the agreement were eligible for such a loan. In consideration of George Bradley using his eligibility for this loan and signing the contract putting the community estate of him and his wife in debt to the Veterans’ Land Board for the unpaid balance of the $5,000.00 purchase price (that is $4,600.00) and in further consideration of George Bradley giving his parents a life estate for the balance of their lives in said property, said parents, H. E. and Rowena Bradley, agreed that they would make the down payment on the farm, that they would pay all later installments on the purchase price, and that they would pay the taxes, the insurance and for all improvements that they placed on the property.

All parties to the agreement sustained benefits from it and they also all sustained detriments in that they each parted with something. The agreement was therefore supported by consideration. 13 Tex.Jur.2d 178, Contracts, Sec. 46.

Contention is made that the agreement is unenforceable because it is oral and therefore in violation of the Statute of Frauds (Art. 3995, V.A.T.S.).

We hold that the agreement is not in violation of Art. 3995, Subd. 4, V.A.T.S., which provides in substance that “any contract for the sale of real estate or the lease thereof for a longer term than one year” must be in writing. The reason for our holding is that the provision referred to does not apply to a contract between two or more parties, such as the one involved here, to acquire jointly realty from a third person. Reid v. Howard, 71 Tex. 204, 9 S.W. 109 (1888) and McDonald v. Sanders, 207 S.W.2d 155 (Tex.Civ.App., Texarkana, 1947, ref., n. r. e.).

The Texas Trust Act (Art. 7425b, Y.A.T.S.) is not involved here because it has not been pleaded affirmatively as a defense by any party as is required by Rule 94, T.R.C.P.

We also hold that even if the parol agreement of the parties relating to the purchase of the farm was in violation of Art. 3995, V.A.T.S. (Statute of Frauds) such agreement is still enforceable under the holdings of cases such as Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921). That case and many others hold that a parol sale of land will be relieved from the operation of the statute of frauds when the following three things are present: (1) payment of the consideration; (2) taking of possession by the vendee; and (3) the making of valuable and permanent improvements on the land by the vendee. For other such cases see 26 Tex.Jur.2d 272, Frauds, Statute of, Sec. 107.

The undisputed evidence in the case shows that on the closing of the land transaction H. E. and Rowena Bradley immediately went into complete possession of the farm and have had it since 1953; they paid the entire purchase price of the land to Veterans’ Land Board; and they have constructed permanent and valuable improvements on the land which enhanced the value of the land $9,000.00. H. E. Bradley and wife did all this with the consent of George and Norma Jean Bradley and in reliance on their promises made in connection with the agreement to acquire the land.

Plaintiff’s first point of error is that the court erred in not rendering judgment for plaintiff when the jury found that the $400.00 down payment was not a gift to George Bradley because the property was purchased during plaintiff’s marriage to George and the consideration they furnished was community property.

Her second point of error is that the trial court erred in rendering judgment non ob-stante veredicto because the evidence showed as a matter of law that the $400.00 down payment was not a gift from his parents to George Bradley alone.

The third point of error is that the trial court erred in granting defendants’ motion to disregard the jury’s answer to Issue No. 11 finding that such down payment was not intended by the parents as a gift to George Bradley.

We sustain those three points of error. The undisputed evidence in the case shows that H. E. and Rowena Bradley made that $400.00 down payment as a part of the consideration they agreed to furnish in connection with the contract for the joint acquisition of the land. It was therefore not a gift, as a matter of law.

A “gift” is a voluntary transfer of property to another made gratuitously and without consideration. See Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565 (1961) and for other such cases see 27 Tex.Jur.2d 147, Gifts, Sec. 1.

In this case the undisputed evidence showed that the $400.00 down payment was not furnished to George Bradley gratuitously, but was furnished to him in consideration of his promise to do certain things above referred to in connection with the acquisition of the farm.

In addition to that the jury found that the down payment was not intended by the parents as a gift to George Bradley. There was certainly sufficient evidence to support the finding.

The trial court could disregard the jury’s answer to Issue No. 11 only if there was no evidence to support the finding and could render a judgment non obstante veredicto only in an instance where a directed verdict would have been proper. See on this Rule 301, T.R.C.P.

In this instance the trial court erred in disregarding the jury’s answer to Issue No. 11. The undisputed evidence in the case supported the jury’s answer thereto because it showed that there was a consideration given by George and Norma Jean Bradley to H. E. and Rowena Bradley for their furnishing the down payment.

It also follows that it was error for the trial court to render the judgment non ob-stante veredicto for defendants based on the grounds that the down payment was a gift to George Bradley because a directed verdict for defendants on that ground would not have been proper. That is true for the reason that the jury found that the down payment was not a gift and because the undisputed evidence in the case also shows that it was not a gift.

We hold that the remainder interest in the farm involved that was acquired in the farm purchase transaction by George Bradley was the community property of the marriage between him and Norma Jean Bradley, the plaintiff.

The status of property as being either separate or community is determined at the very time of its acquisition and such status is fixed by the facts of its acquisition at the time thereof. Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529 (1940) and Hilley v. Hilley, supra.

This farm was purchased in 1953 while George and Norma Jean Bradley were married. The total purchase price was $5,000.00. The credit of the community estate of that marriage was extended to pay for $4,600.00 of the purchase price when George Bradley signed the contract of purchase with the Veterans’ Land Board wherein he agreed to pay the Board $4,600.00 in semi-annual installments over a 40 year period and to pay 3% per annum interest for the use of the money. The remaining $400.00 down payment on the purchase price was paid by George’s parents as a part of the consideration for the business deal that they had made with George and Norma Jean Bradley. Whatever benefit George and Norma Jean Bradley derived under the agreement from the payment of the $400.00 down payment by H. E. and Rowena Bradley was also community property.

Under those facts the entire remainder interest acquired by George Bradley in the farm in question is community property. Riley v. Brown, 452 S.W.2d 548 (Tex.Civ.App., Tyler, 1970, no writ hist.) and Hilley v. Hilley, supra.

Property acquired on the credit of the community is community property. Where a community obligation for the purchase of land is given to purchase such land and its status thereby fixed as community property, its status is not later changed into separate property by the fact that the community debt is later paid with separate funds. Gleich v. Bongio, 128 Tex. 606, 99 S.W.2d 881 (Tex.Com.App., 1937, op. adopted). So even if it could be said that the installment payments made on the farm by H. E. and Rowena Bradley in payment of the community debt owed thereon were the separate property of George Bradley by virtue of being a gift to him, this would not change the status of the community interest that George Bradley and Norma Jean Bradley owned in the farm into his separate property.

The California court had no power to divide the remainder interest that George and Norma Jean Bradley owned in the Texas farm at the time the divorce was granted. Turner v. Turner, 204 S.W. 133 (Tex.Civ.App., 1918, error dism.). And since those parties were divorced finally by the California Court in 1968 without the court dividing the community interest that they owned in the Texas farm in question, George Bradley and Norma Jean Bradley on being divorced became tenants in common or joint owners of that remainder interest therein just as if they had never been married. Each then owned a ½ interest in the remainder in the farm. Taylor v. Catalog 140 Tex. 38, 166 S.W.2d 102 (1942) and Kirkwood v. Domnan, 80 Tex. 645, 16 S.W. 428 (1891).

In 1973 George Bradley executed a deed that purported to convey this farm to H. E. and Rowena Bradley. Since George Bradley was at that time a cotenant or joint owner of the remainder interest in the farm with his ex-wife, Norma Jean Bradley, his deed conveyed only his ½ interest in the remainder in the farm to his parents. This is true because a cotenant is neither a partner nor an agent of his coten-ant. He could not convey by his deed any part of his cotenant’s interest in the land. Heller v. Heller, 114 Tex. 401, 269 S.W. 771 (Tex.Com.App., 1925, op. adopted) and 15 Tex.Jur.2d 170, Cotenancy, Sec. 13. The following is from 15 Tex.Jur.2d 197, Cotenancy, Sec. 32: “A third party receiving a grant from a cotenant takes such interest in the common property as his grantor possessed and his rights are identical with those of his grantor.”

Here George Bradley, after being divorced from the plaintiff, Norma Jean Bradley, purported to deed to his parents (H. E. and Rowena Bradley) all of their community interest in the farm. Such interest was at that time recorded in the name of George Bradley only. At the time of the conveyance the grantees knew all of the facts and had full knowledge that Norma Jean Bradley was claiming to be the owner of a one-half interest in the farm. Under those circumstances the grantees will not be protected, in so far as their acquisition of title is concerned, from the claims of the wife to the property because the grantees are not bona fide purchasers of the property for value and had notice of the wife’s interest therein. Buckalew v. Butcher-Arther, Inc., 214 S.W.2d 184 (Tex.Civ.App., Beaumont, 1948, ref., n. r. e.); and 30 Tex.Jur.2d 205, Husband and Wife, § 120.

We hold that under the facts of this case George Bradley’s deed just referred to did not convey any part of Norma Jean Bradley’s interest in the property to his father. It was effective to convey only George Bradley’s one-half interest in the remainder in the farm to H. E. Bradley.

We have carefully considered the grounds urged in defendant’s motion for judgment non obstante veredicto. The trial court’s decree was to the effect that he sustained the motion on each of the grounds urged therein. We are in agreement with the plaintiff and hold that the trial court erred in sustaining such motion on the following grounds: (1) that plaintiff waived her right to claim her interest in the land by not making any payments on the land after getting her divorce; (2) her claim is barred by the four year limitation statute; (3) her claim is barred by laches; and (4) she cannot be allowed to recover her interest because it would unjustly enrich her.

It is so apparent to us that defendants were not entitled to a judgment non ob-stante veredicto on any of those grounds that we will not burden this opinion with a discussion of them.

We have already discussed the question of whether or not the down payment and installment payments made by H. E. and Rowena Bradley on the purchase price were a gift to their son, George Bradley, thus causing the farm to be his separate property. The jury verdict and, we believe, the undisputed evidence established that these payments were not gifts to George Bradley. It was therefore error for the trial court to render judgment non obstante veredicto for defendants on the ground that such payments were gifts to George Bradley, thus rendering the farm his separate property.

One ground of the motion for judgment non obstante veredicto was that H. E. and Rowena Bradley were put in possession of the farm pursuant to the agreement of the parties, relying on the promises of George and Norma Jean Bradley made in connection therewith, and proceeded to pay for the property, to pay the taxes and insurance and to make valuable improvements. Defendants contended that under the doctrine of the Hooks v. Bridgewater, supra, case the defendants were therefore entitled to recover the fee simple title to the entire farm. The trial court granted the motion for judgment non obstante veredicto on that ground also and rendered a take nothing judgment against plaintiff and decreed that defendants be awarded the entire title to the farm on that ground. We hold that the trial court erred in rendering judgment non obstante veredicto for defendants and against the plaintiff to the extent that he did on this particular ground. We have heretofore pointed out that we are convinced that the oral contract involved here was not in violation of the statute of frauds because it was an agreement between two or more persons to acquire realty jointly from a third person. However, if we are wrong in that conclusion, we, as indicated above, hold that the contract in question is enforceable under the Hooks v. Bridgewater doctrine, supra. When the agreement of the parties is enforced its effect is not to put the complete title to the property in defendants as was held by the trial court. The plaintiff, when that doctrine is applied, under the agreement of the parties as is hereinabove indicated, is entitled to recover a one-half interest in the remainder of the property and the defendant, Rowena Bradley, is entitled to a life estate in the entire farm and George Bradley is entitled to recover the remaining ½ interest in the remainder of the property.

We also hold that the trial court erred in sustaining the judgment non ob-stante veredicto on the ground that George and Norma Jean Bradley gave the equity of redemption in the farm to H. E. and Rowena Bradley for as long as they lived. A motion for instructed verdict on that ground would not have been proper.

Plaintiff’s 9th, 10th, 11th, 12th, and 13th points of error are directed to the adverse possession question.

Issue No. 23 in the charge inquired whether H. E. and Rowena Bradley have had and held continuous, exclusive, peaceable and adverse possession of the farm for a period of ten years prior to the filing of the suit. The jury’s answer was “Yes.” Plaintiff’s 14th point of error is that the trial court erred in not granting plaintiff’s motion to disregard the jury’s answer to that issue. She also contended in her points Nos. 9, 10 and 11 that the trial court erred in overruling objections to the submission of the issue No. 23 on the grounds that there were no pleadings to support its submission and that there was no evidence and insufficient evidence to support its submission.

We sustain all of those points of error.

Rule 94, T.R.C.P., requires that all affirmative defenses be pleaded. The Statute of Limitations is an affirmative defense and it is so stated in that rule.

Neither defendant in this case pleaded the 10 year statute of limitations. The trial court submitted Issue No. 23 in its charge anyway. The plaintiff objected to the submission of the issue on the grounds that the 10 year limitation statute had not been pleaded as a defense, but the trial court overruled the objection. This was error. See Rule 94, T.R.C.P.

We also hold that there is no evidence and insufficient evidence to support the submission of the Issue No. 23 and that as a matter of law the undisputed evidence showed that H. E. and Rowena Bradley did not possess the farm adversely to the plaintiff for a continuous period of more than 10 years.

H. E. and Rowena Bradley entered into possession of the farm with the permission and consent of George and Norma Jean Bradley. They took possession under the terms of the original agreement which was to the effect that they would have a right to the possession of the farm during their lifetimes. Rowena Bradley testified that she never claimed title adversely to the Veterans’ Land Board and that she never did claim title to the land adversely to George Bradley because it was all a part of the agreement. She said that her occupancy under the original agreement continued until the time of the trial which started on March 17, 1975. George and Norma Jean Bradley were not finally divorced until 1968. This suit was filed in 1972.

The following is from Killough v. Hinds, 161 Tex. 178, 338 S.W.2d 707 (1960): “When A enters upon the land in recognition of the title of B, in order for A to prevail under the 10-year statute of limitations three things must be established, (1) there must be a repudiation of the relationship thus established and claim of title adversely to that of B; (2) this repudiation and adverse claim must be clearly brought home to B as limitation will only begin to run from that date; (3) there must be adverse possession for 10 years after notice of repudiation and adverse claim has been brought home to B.”

Prior to the divorce in 1968 the parents had never claimed adversely to George and Norma Jean Bradley. It is undisputed that H. E. and Rowena Bradley did not possess the farm adversely to George and Norma Jean Bradley for a 10 year period after a time that they had repudiated the relationship created by the agreement under which they went into possession.

When the parents recognized George Bradley’s rights in the property they also recognized the rights of his wife in that community property because their rights therein are identical. This is true even though the title stood only in the husband’s name. Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S.W. 1139 (1917).

There is another reason why the 10 year limitation statute had not, as a matter of law, run against plaintiff in this case. Under her own testimony the effect of the agreement between these parties was to establish in Rowena Bradley and her husband, H. E. Bradley, life estates in the farm, with the remainder therein belonging to George and Norma Jean Bradley.

A life estate in land is separate and distinct from the estate in remainder. Therefore, the possession of the life tenants was not adverse to the persons holding title as remaindermen. The latter had no immediate right to possession of the property. Nussbaum v. Nussbaum, 292 S.W. 189 (Tex.Com.App., 1927).

In plaintiff’s 21st point of error she contends that the trial court erred in disregarding the jury’s “yes” answer to issue No. 31 inquiring whether H. E. and Rowena Bradley occupied the farm as implied lessees during the period from 1953 to 1972.

We overrule that point because the undisputed evidence shows that under the agreement of the parties H. E. and Rowena Bradley were life tenants and that they were therefore not lessees. There was no landlord-tenant relationship involved.

Another contention made by plaintiff is that the agreement of the parties is an illegal agreement because it is in violation of Art. 5421m, V.A.T.S. (the Veterans’ Land Act). She contends that the contract is illegal and that Rowena Bradley therefore cannot enforce the possessory interest that she was to have in the farm under the agreement of the parties. We overrule that contention.

At the time of the trial the contract between George Bradley and the Veterans’ Land Board had been fully performed. All of the principal and interest owed under the contract had been fully paid, and the Veterans’ Land Board, with knowledge of all the facts, did execute its deed conveying the record title of the farm to George Bradley, subject to this lawsuit, which was then pending.

A number of cases have held that an adverse claimant cannot assail the title of a purchaser of school lands on the ground that in making his purchase he acted in collusion with some other person. That question can only be raised by the State. See Jones v. Missouri, K. & T. Ry. Co. of Texas, 32 Tex.Civ.App. 286, 73 S.W. 1090 (1903, no writ hist.); May v. Hollingsworth, 35 Tex.Civ.App. 665, 80 S.W. 841 (1904, writ ref.); Weatherly v. Jackson, 123 Tex. 213, 71 S.W.2d 259 (Tex.Com.App., 1934), and Frontroy v. Atkinson, 45 Tex.Civ.App. 324, 100 S.W. 1023 (1907, no writ hist.).

On authority of those cases we hold that plaintiff is in no position to contend that the executed contract is illegal. Only the State through the Veterans’ Land Board could do that and they have not seen fit to attack the transaction.

The trial court correctly refused to partition the farm at this time. Under our analysis of the case the only person that has the present right to the possession of the farm is the defendant, Rowena Bradley. This is by virtue of the fact that she owns a life estate in the farm for the balance of her lifetime.

The plaintiff, Norma Jean Bradley, only owns a ½ interest in the remainder of the farm. She has no right of possession to any of the farm property until the life estate in the property owned by Rowena Bradley ends at her death. When Rowena Bradley dies the property can then be partitioned among its then joint owners. On this see 44 Tex.Jur.2d 262-263, Partition, Sec. 16.

H. E. Bradley, whom we held to be a life tenant in the farm, died pending the trial on March 31,1974. His wife, Rowena Bradley, whom we also hold has a life estate in the property for the balance of her lifetime, is now over 77 years old.

We have considered all points and counter-points urged by both parties. Those that are not herein expressly acted on that would lead to a result different than that herein above indicated are overruled. We hold that the trial court was not authorized to render the judgment non obstante vere-dicto that he did render on any of the grounds urged therein.

It is the duty of this Court to render the judgment that the trial court should have rendered. Rule 434, T.R.C.P.

We reverse the trial court’s judgment and render judgment decreeing that Rowena Bradley has a life estate (for the balance of her life) in the entire 169 acre Cooke County farm that is involved in this suit; we also render judgment decreeing that the plaintiff, Norma Jean Bradley, have and recover from defendants the title to a ½ interest in the remainder in said farm and that the defendant, George Bradley, be and is hereby decreed to be the owner of the remaining ½ interest in the remainder in said farm.

Costs both in this Court and in the court below are taxed against the defendants.


source: Caselaw Access Project

author: SPURLOCK, Justice.

license: Public Domain

text:
    Nelvina Gladys Hulstein JOHNSON, Appellant, v. Tuss M. BOND et al., Appellees.
    No. 17750.
    Court of Civil Appeals of Texas, Fort Worth.
    July 23, 1976.
    Rehearing Denied Sept. 10, 1976.

      Kelsey & Wood and Richard H. Kelsey, Denton, for appellant.
    George Hopkins, Denton, for appellees, Tuss M. Bond and Helen L. Scott.
    Dick V. Foster, Denton, for G. W. G. Hulstein.
   OPINION

SPURLOCK, Justice.

This is an appeal from a judgment rendered against Nelvina Gladys Hulstein Johnson, appellant, as transferor of a note. She attacks the judgment on the grounds of want or failure of consideration, lack of valid delivery of the note, and in the alternative, she is entitled to indemnity against the other transferor of the note.

Judgment reversed and rendered as to defendant Johnson; otherwise affirmed.

This suit on a note was brought by Tuss M. Bond and Helen L. Scott against Jesse G. Thrasher, Neva J. Thrasher, G. W. G. Hulstein, Nelvina Gladys Hulstein Johnson, and Eva M. Hill.

Plaintiffs alleged the Thrashers are the makers of the note; Hulstein and Johnson are the endorsers and transferors of the note; and Eva Hill assumed the debt.

Defendant Johnson filed a cross-action against Hulstein for indemnity.

Judgment was rendered against Hulstein, Johnson, and Hill with indemnity over against Hill. Relief on the cross-action was denied. Defendants Thrashers were non-suited.

Defendant Johnson was the wife of defendant G. W. G. Hulstein until they were divorced on February 8, 1973.

Plaintiffs allege that on January 11,1973, the Hulsteins transferred the note here involved, together with a lien securing the payment of same, to Tuss M. Bond and W. A. Scott, with recourse, and W. A. Scott thereafter transferred his interest in the note to Helen L. Scott so that Bond and Helen L. Scott are now the legal and equitable owners of said note and the lien securing payment of same.

The defendant, Johnson, answered that she had assigned the note solely for the purpose of transferring the title and as an accommodation to the plaintiffs, and she received no consideration for the transfer of said note. She further pleaded a general denial. This answer was verified.

Ordinarily in a suit on a note, a general denial puts in issue allegations that the plaintiff is the owner or holder of the note, that the same is due, and the amount due and Owing thereon. Alexander v. Houston Oil Field Material Co., 386 S.W.2d 540 (Tex.Civ.App., Tyler, 1965, ref., n. r. e.).

Plaintiffs, apparently in an effort to meet this burden of proof, offered into evidence a contract for sale between Tuss M. Bond and Delpha Taylor Bond, husband and wife, and W. A. Scott and Helen L. Scott, husband and wife, as sellers; and G. W. G. Hulstein and Nelvina G. Hulstein, as buyers. This was the contract for the purchase and sale of a ranch in Oklahoma. This agreement of April 4, 1972, provided in part that the buyers would pay part cash and other consideration; and as additional consideration would assign to the sellers the above-described Thrasher note. This contract provided that the sellers would execute a warranty deed conveying title to both Mr. and Mrs. Hulstein jointly, as grantees. The contract further provided that after title had been examined and found to be merchantable the deed would be delivered to the Hulsteins who would then assign the Thrasher note to sellers. The endorsed and assigned note, the contract containing the escrow agreement, the deed, and other consideration were placed in escrow with an Oklahoma bank where the transaction took place.

The evidence is uncontroverted that no warranty deed conveying title to both Mr. and Mrs. Hulstein was ever executed by the sellers. Instead, the warranty deed conveyed title to Mr. Hulstein only. It is un-controverted that this condition for the delivery of the endorsed note was never complied with.

In general, when a promissory note is delivered to an escrow agent or other person to be delivered and become binding on the happening of a contingency, it is not enforceable until that event takes place. Williams v. Jones, 122 Tex. 61, 52 S.W.2d 256 (1932); Shaw v. McCarty, 70 S.W.2d 486 (Tex.Civ.App., Eastland, 1934, writ dism.); Alamo Lumber Co. v. Lawyers Title Insurance Corp., 439 S.W.2d 423 (Tex.Civ.App., San Antonio, 1969, no writ hist.). Since the contingency did not happen, the endorsement and transfer of the note to the sellers was not enforceable based on the April 4, 1972, transaction. *

Thereafter on January 11, 1973, a second attempt was made to secure a valid transfer of the note and lien. Defendant Johnson signed that transfer on that date without ever having been a grantee in a deed from the sellers to the Oklahoma ranch.

Between the April, 1972, and the January, 1973, events; and on November 21, 1972, came on to be heard a divorce proceeding between the Hulsteins. The divorce decree is dated February 8, 1973, a full month after the second attempted transfer. Plaintiffs contend that the divorce was granted on November 21, 1972, and in said divorce decree the rather extensive property holdings of the Hulsteins were divided and partitioned. Hulstein was awarded the ranch, and defendant Johnson received “other property” to compensate for the Oklahoma ranch, which constituted consideration.

No evidence is in the record that a divorce decree was rendered at any time other than that reflected by the decree itself. There being no evidence to the contrary the date the judge signed the divorce decree is conclusively established to be the date of the rendition of the judgment. The date of the signing is controlling rather than the date the cause came on to be heard. Ex Parte Godeke, 163 Tex. 387, 355 S.W.2d 701 (1962).

During the course of the trial expert testimony established that under Oklahoma law, where one spouse is deeded real property in his or her name, except in the case of homestead which is not here involved, the property becomes the separate property of the named spouse only.

If there was consideration for the execution of the contract for sale, that consideration failed as to Johnson because she was never made a grantee in a deed to the ranch. Hence, it follows that there was a failure of consideration for the conditional endorsement and delivery of the note.

No findings of fact or conclusions of law were filed in this case, tried without the aid of a jury. Therefore, we are bound to consider the evidence in the light most favorable to the judgment and presume the trial court resolved all disputed issues of fact against appellant if there is any evidence of probative force to support the judgment. North East Texas Motor Lines v. Dickson, 148 Tex. 35, 219 S.W.2d 795 (1949).

Defendant Johnson assigns three points of error, two of which assert the trial court erred in rendering judgment against her because (1) there was want or failure of consideration and (2) there was no valid delivery of the note, and therefore plaintiffs never became holders of such note as to her. These points will be discussed together.

There is no question that plaintiffs were holders of the note by virtue of their possession and the endorsement, which was stipulated to be authentic. Texas Business & Commerce Code Ann., Sec. 1.201(20) (1967). It is also true that, in such a case, a holder is entitled to recover on the note unless defendant establishes a defense. Texas Business & Commerce Code Ann., Sec. 3.307(b) (1967).

Plaintiffs contend that defendant is not entitled to the defense of non-delivery because of her failure to plead it. In the absence of an affirmative plea of nondelivery, she would not have been entitled to introduce evidence on the issue of whether plaintiffs were holders, since the original note, properly endorsed, was admitted in evidence without objection. Alexander v. Houston Oil Field Material Co., supra. Nonetheless, evidence was introduced without objection to show clearly that delivery of the note never took place, and we therefore hold this issue to have been tried by implied consent. Rule 67, T.R.C.P. Plaintiffs were the holders, but liability did not attach because of failure of delivery. Williams v. Jones, supra; Shaw v. McCarty, supra; Alamo Lumber Co. v. Lawyers Title Insurance Corp., supra.

It is not clear from defendant’s brief whether she is arguing failure or want of consideration. There is a vital difference.

For consideration to fail, it must have been valid at one point and later fail. Want of consideration, on the other hand, means that there never was consideration; that the note never became a valid obligation in the first place. National Bank of Commerce v. Williams, 125 Tex. 619, 84 S.W.2d 691, 692 (1935).

In her brief, defendant Johnson discusses failure and want of consideration as if they were the same thing. The evidence shows that, as to her, there was either want or failure of consideration concerning the April transaction.

If a point of error is sufficient to direct the court’s attention to the matter complained of, the court will look to the point and the statement and argument thereunder to determine the question of reversible error. Rule 418, T.R.C.P.; Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943).

We look next to the transfer of lien of January 11,1973. This transfer recites a consideration of “$10.00 and other good and valuable considerations.” Such a recital of consideration in a deed is prima facie evidence of its amount and the payment thereof. 19 Tex.Jur.2d, p. 319, “Deeds”, See. 55, “Effect of recital-Admissibility of parol evidence.”

The question then arises whether this prima facie evidence raises a fact issue that was foreclosed against appellant by the judgment. It is our opinion, under the facts of this case, this prima facie evidence did not raise a fact issue. In Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 136 S.W.2d 207, 209 (Tex.Com.App., 1940, opinion adopted) that court stated:

“Evidence which, uncontradicted and unexplained, would be prima facie evidence of a fact becomes insufficient to raise an issue of fact when the other facts in evidence conclusively prove that the fact sought to be shown by the prima facie evidence or presumption of fact does not exist. (Citing numerous cases.)”

There was clear and convincing evidence, which was not controverted, although plaintiffs were present during the transaction and had every opportunity in the trial court to controvert it, that the consideration recited in the transfer of January 11, 1973, was never paid. Therefore, there was want of consideration.

The defendant Johnson never endorsed the note at any time except on or about April 4, 1972. She did not endorse the note on January 11, 1973, at the time she signed an instrument described on its face as a “transfer of lien”. Therefore, there is no liability on the endorsement of defendant Johnson. Texas Business & Commerce Code Ann., Sections 3.201 and 3.202 (1967).

We hold that there was want or failure of consideration and there was no valid delivery of the note; so that although plaintiffs were holders of the note, the endorsement thereon did not create liability as to defendant Johnson as an endorser.

Appellant, by her sole remaining point of error, asserts the trial court erred in not awarding her indemnity against the cross-defendant, Hulstein.

The divorce decree provides that the defendant Hulstein agrees to hold his wife harmless in the event any judgments are rendered against them both.

Since we have held that defendant Johnson is not liable to the plaintiffs, it is unnecessary for this Court to determine whether cross-defendant Hulstein is liable to cross-plaintiff Johnson for indemnity.

The judgment against defendant Johnson is reversed and rendered. The remaining portion of the judgment allowing recovery by the plaintiffs against G. W. G. Hulstein and Eva Hill and indemnity by G. W. G. Hulstein against Eva Hill is affirmed.


author: CHADICK, Chief Justice.

text:
    COMMERCIAL STANDARD FIRE AND MARINE COMPANY, Appellant, v. Annice Lee THORNTON, Individually and as guardian and next friend of Glenda Rae Thornton and Sally Renee Thornton, Appellees.
    No. 8362.
    Court of Civil Appeals of Texas, Texarkana.
    July 27, 1976.
    Rehearing Denied Aug. 24, 1976.

      Victor F. Hlavinka, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for appellant.
    Charles E. Thompson, Lovelace & Thompson, Inc., Atlanta, Buck Florence, Florence & Florence, Hughes Springs, for appellees.
   CHADICK, Chief Justice.

This is a workmen’s compensation case. After jury verdict, the trial judge awarded death benefits authorized by law as compensation to the wife and children of a deceased workman. The trial court judgment is affirmed.

One special issue was submitted for jury consideration. The jury found that the decedent, Johnny Ray Thornton, sustained an accidental injury February 28, 1974, in the course of his employment, which was a producing cause of death. Causation is the appeal problem. Appellant insurance company grounds reversible error on, first, no evidence that Mr. Thornton sustained an accidental injury originating in the course and scope of his employment on February 28, 1974; alternatively, that such verdict is contrary to the great weight and preponderance of the evidence. And, second, no evidence that the alleged accidental injury was a producing cause of Mr. Thornton’s death; alternatively, that such verdict is contrary to the great weight and preponderance of the evidence. The parties agree that a heart attack or disorder induced by a strain or exertion in the course and scope of employment is an accidental injury to the physical structure of the body and compen-sable under the workmen compensation laws. And further, that, when a claimant can causally connect injury and death of such employee with strain or strenuous exertion, a compensable injury is proven.

Mr. Johnny Ray Thornton, an employee of D & H Trucking, Inc., was stricken by a physical disorder on February 28, 1974, and died on May 30,1974. The plaintiffs’ pleadings alleged Mr. Thornton suffered a heart attack, or, alternatively, aggravation of a pre-existing bodily infirmity, brought about by “lack of sleep and strenuous labor, strain and over-exertion” endured in loading his truck.

Mr. Thornton was scheduled to pick up a load of oil well pipe at the T & N Warehouse near Lone Star, Texas, at 2:00 a. m. o’clock on February 28, 1974. At 6:00 a. m. o’clock the same morning he was seen by the dispatcher at D & H Trucking Terminal with his truck loaded with pipe and the pipe properly chained down. Approximately an hour later Mr. Thornton parked his truck at Hazel’s Truck Stop in Linden, Texas. At that time he appeared pale and to be in pain and lay down in a booth in the restaurant section. He told the truck stop operator he thought he was having a heart attack. A telephone call brought his wife, who moved him to Tyler, Texas.

At Tyler Mr. Thornton was admitted to Glenwood Hospital and Clinic and treated throughout his fourteen (14) day confinement there by Dr. James Wood. After discharge from the hospital, this medical practitioner continued to see him at two-week intervals and after six weeks’ treatment in which satisfactory improvement did not occur recommended and arranged for Mr. Thornton to enter the University of Texas’ John Sealy Hospital at Galveston for more thorough testing and cardiac evaluation. Mr. Thornton’s death occurred before the examination was “worked up.”

Dr. Wood testified that on initial examination a myocardial infarction was suspected. Though commonly called heart attack, he explained the term as a condition usually caused by a blood clot in a blood vessel supplying a portion of the heart muscle, the clot causing the muscle to die for lack of a blood supply. The condition may be caused by physical exertion. A muscle thus affected has a zone or a halo about it showing signs of injury which is termed an ischemia. This condition is revealed by electrocardio-graphic examination. However, Dr. Wood, after test procedures, diagnosed Mr. Thornton’s condition as a cute post viral myocardi-tis at the time Mr. Thornton was discharged from the clinic. This last medical term means a virus infection of the heart muscles, a disease of the heart. It is not caused by physical exertion; but it may weaken heart muscles to the extent that exertion may overtax the heart and cause injury. Diagnosis of post viral myocarditis was influenced by Mr. Thornton’s medical history of having had an acute upper viral respiratory infection six or seven weeks before the time of examination and failure of usual tests to clearly show myocardial infarction.

At the time of trial, Dr. Wood testified, or so his testimony may be construed, that in medical probability Mr. Thornton’s death was produced by exertion causing a myocardial infraction and by exertion overtaxing Mr. Thornton’s myocarditis depleted cardiac reserve. In each instance, he testified physical exertion expended in tying down and securing the truck’s load of pipe in medical probability induced the mentioned conditions and was a producing cause of death. The appellant urges that such conclusion bases an inference upon an inference and is impermissible.

No witness testified to seeing Mr. Thornton perform the tie-down operation. However, evidence was introduced to show loading procedures at the pipe warehouse and the responsibilities of each truck driver during the loading operation. The driver was required to prepare for the pipe cargo by placing 4" X 4" X 8' timbers on the bed of the truck trailer and to set stakes along the edge of the bed to help contain the load. Employees of the warehouse utilized machinery to load the pipe on the truck. After loading, the truck driver was required to place in position twenty to twenty-five foot lengths of chain weighing fifty to sixty pounds each over the pipe load and secure the ends to the side of the trailer bed. The chains were usually positioned by fastening one end to the bed and throwing the chain over and across the pipe for fastening on the opposite side. The chains were tightened on the loads by use of a “boomer,” a device that afforded leverage to take up slack in the chain. Operation of the boomer required the driver to use his muscular strength as well as apply bodily weight in tightening the chains. The loading and tying down procedure was standard and used every time a truck was loaded. No driver was permitted to move his truck from the loading yard without having secured the load. The driver was required to certify in writing that the load had been secured before the truck left the warehouse yard. There is no evidence of Mr. Thornton having an assistant or helper in the performance of his duties.

This is not a situation where the jury was required, as in O’Dell v. Home Indemnity Company, 449 S.W.2d 485 (Tex.Civ.App. Amarillo 1970, writ ref’d n. r. e.) and Bean v. Hardware Mutual Casualty Company, 349 S.W.2d 284 (Tex.Civ.App. Beaumont 1961, writ ref’d n. r. e.), to infer a fact and then draw from the inferred fact additional inferences of fact. To have probative value inferences must be drawn from direct evidence. Texas Sling Company v. Emanuel, 431 S.W.2d 538 (Tex.1968). There is direct evidence that Mr. Thornton’s truck was loaded and the load chained down and secured at about 6:00 o’clock in the morning, approximately an hour before he was stricken. From this direct evidence and evidence of the loading procedure, it may be inferred that Mr. Thornton underwent strenuous physical exertion in securing his load of pipe a short time before he was stricken. Also, there is direct medical testimony that Mr. Thornton suffered a heart attack or an overtaxed cardiac reserve, both of which'may be caused by strenuous exertion. In summary, legitimate evidence establishes these facts: (1) While in apparent good health Mr. Thornton engaged in strenuous exertion in the performance of his duties as a truck driver; (2) closely following this exertion he was stricken by physical disablement; (3) Mr. Thornton’s disablement was diagnosed as heart attack or overtaxed cardiac reserve, both of which may be caused by strenuous exertion.

In Insurance Company of North America v. Kneten, 440 S.W.2d 52 (Tex.1969), the facts showed that following exertion there was an onset of a heart attack, the attack followed an occurrence sufficient to adversely affect a defective heart. It was held that a jury might reason that the occurrence on the job was probably a cause of the attack and resulting disability. See also Baird v. Texas Employer’s Insurance Association, 495 S.W.2d 207 (Tex.1973); Standard Fire Insurance Company v. Sullivan, 448 S.W.2d 256 (Tex.Civ.App. Amarillo 1969, writ ref’d n. r. e.); and Midwestern Insurance Company v. Wagner, 370 S.W.2d 779 (Tex.Civ.App. Eastland 1963, writ ref’d n. r. e.); Carter v. Travelers Insurance Company, 132 Tex. 288, 120 S.W.2d 581 (1938).

The last cited cases are not factually parallel with this case. In each of those cases strenuous exertion was proven by direct evidence rather than by inference as in this case. The question becomes whether or not the jury was competent to determine from the enumerated facts and common experience and knowledge that Mr. Thornton was injured and that the injury was the cause of Mr. Thornton’s death. It is concluded that the jury might do so; that the reasoning of Insurance Company of North America v. Kneten, supra, is applicable. The jury was authorized to infer that Mr. Thornton engaged in strenuous exertion in the loading operation and along with that fact considered the medical finding that he suffered a heart attack or overtaxed cardiac reserve shortly thereafter and that such conditions may be caused by strenuous exertion. This, together with the closely connected series of events, even without testimony of medical probability, as certainly shows the probable cause of injury and death as the nature of the case permits. Appellant’s points of error are overruled. There is evidence to support the jury verdict; and the evidence as a whole does not overwhelmingly preponderate against the verdict.

Numerous propositions of law were advanced by both parties but there is no material disagreement upon the law except in its application as herein discussed. The judgment of the trial court is affirmed.


author: BARROW, Chief Justice.

text:
    Daniel M. MARKGRAF, Jr., et al., Appellants, v. SALEM CEMETERY ASSOCIATION, Appellee.
    No. 15569.
    Court of Civil Appeals of Texas, San Antonio.
    July 28, 1976.

      Peter Torres, Jr., San Antonio, for appellants.
    John J. Clayton, San Antonio, for appel-lee.
   BARROW, Chief Justice.

Appellants, Daniel M. Markgraf, Jr. and wife, Marguerite 0. Markgraf, have perfected their appeal from an adverse judgment entered after a non-jury trial in a trespass to try title suit brought by appel-lee.

The disputed areá contains 0.909 acre of land out of a 3.00-acre tract of land which was conveyed to appellee in 1974 by the Salem Sayers Baptist Church. Appellants concede that appellee has record title to the area in dispute. The disputed area adjoins a 15.165-acre tract of land owned by appellants and appellants claim the disputed tract of land by adverse possession under Articles 5507, 5509, and 5510, Tex.Rev.Civ. Stat.Ann. The trial court concluded that the disputed area was part of a public cemetery and, therefore, appellants could not acquire title by adverse possession under Article 5517, Tex.Rev.Civ.Stat.Ann.

It is undisputed that the “Salem Cemetery” has existed for more than fifty years and still is in active operation. Up until a few years ago the land was owned by the Salem Sayers Baptist Church and operated by a voluntary association. The Salem Cemetery Association was chartered as a non-profit corporation in April 1975, and now operates a perpetual care cemetery. The problem in this case arose because a chain link fence, which was erected about ten years ago, encloses only 2.091 acres. Appellants urge that the disputed 0.909-acre tract outside the fence was thereby abandoned as a cemetery.

Both parties rely on Andrus v. Remmert, 136 Tex. 179, 146 S.W.2d 728 (1941). It was there held that land dedicated to use as a cemetery can be abandoned as such. The test to be applied is stated as follows:

As long as land once dedicated to use as a cemetery ‘is kept and preserved as a resting place for the dead, with anything to indicate the existence of graves, or as long as it is known and recognized by the public as a graveyard, it is not abandoned.’

The Supreme Court expressly recognized that in dedicating land to cemetery purposes reasonable provision may be made for future burials by including surplus land.

The facts in this case support the trial court’s implied finding that the 0.909 acre in dispute was not abandoned as a part of the cemetery. There is no question but that the cemetery has been in active and continuous use for over fifty years. Burials have taken place from time to time in the cemetery and it has been maintained by loving descendants. There is testimony that the chain link fence was erected to conform with the terrain because space was no problem when the fence was erected. A ditch was to the north and east of that part of the cemetery which was then in active use and the fence was erected so as to avoid the ditch. Recently the grave sites inside the fence have become filled and a need has arisen for use of the area now located outside the fence. As a result of this need, a survey was made by the Association in December 1973, in order to locate the true boundary lines. This suit was filed to quiet appellee’s title and right to possession of the area in dispute.

It cannot be said as a matter of law that the 0.909-acre tract was ever abandoned as a part of the cemetery. There is no evidence of an intent to abandon the disputed tract. Furthermore, there are several graves located outside the chain link fence and these have been maintained by the Trustees of the Association.

The trial court did not err in concluding that the 0.909-aere tract was a part of the cemetery. Therefore, appellants could not perfect title to the disputed tract by adverse possession.

      . These statutes are the three, five, and ten-year statutes of limitation.


author: CADENA, Justice.

text:
    Michael B. O’QUINN, Appellant, v. E. K. BEANLAND, Appellee.
    No. 15517.
    Court of Civil Appeals of Texas, San Antonio.
    July 28, 1976.
    Terry Topham, Sawtelle, Goode, Davidson & Troilo, San Antonio, for appellant.
    Kenneth Beanland, San Antonio, for ap-pellee.
   CADENA, Justice.

Defendant, Michael B. O’Quinn, individually as heir and as devisee of the separate and community estates of his deceased parents, and as independent executor of the estate of Margaret Eleanor O’Quinn, appeals from that portion of the judgment of the trial court which rejected his prayer, embodied in a counterclaim in response to a suit filed by plaintiff, E. K. Beanland, for recovery of double the amount of usurious interest.

Plaintiff filed this suit to recover on a promissory note, in the amount of $1,791.29, executed by defendant’s deceased father, E. B. O’Quinn, on January 27, 1970. In his answer, defendant alleged that his father, at the time he executed the note, was mentally incompetent. He also filed a counterclaim alleging usury, for recovery, under Article 5069-1.06(1), Tex.Rev.Civ.Stat.Ann., of double the amount of the interest called for by the provisions of the note. No payments were made on the principal or interest due on the note in question.

The trial court found that the note in question was tainted by usury and rendered judgment that plaintiff take nothing. However, the trial court also denied defendant recovery on his counterclaim “because the defendant has not done equity by returning the principal amount of the note to the plaintiff.”

Plaintiff has not perfected an appeal from the portion of the judgment denying him recovery on the note, and we need not concern ourselves with the correctness of that part of the judgment. But defendant, by this appeal, insists that the trial court erred in not awarding him judgment for double the amount of the interest called for by the note.

For the purpose of this opinion, we assume that the note called for the payment of usurious interest. We consider the question of whether the maker of a note, or, as in this case, his successor in interest, can recover twice the amount of usurious interest when no payments have been made on the note and a judgment has been obtained cancelling the note because of the mental incompetence of the maker.

As far as this case is concerned, the highest interest rate permitted by law is 10 per cent per annum. Article 5069-1.02. If the note called for the payment of interest in excess of 20 per cent per annum, then, under the provisions of Article 5069-1.06(2), plaintiff would not only be liable for double the amount of the interest, but would also forfeit the principal. Since defendant does not contend that the interest charged exceeded 20 per cent, it is clear that the presence of usury did not bar plaintiff’s recovery of the principal, although defendant, of course, would have been entitled, as an offset, to the penalty provided for in Article 5069-1.06(1). Therefore, the judgment denying plaintiff recovery on the note cannot be justified on the ground that the note provided for payment of usurious interest. The judgment relieving defendant of liability on the note can rest only on the mental incompetency of the maker at the time the note was executed.

In Commerce Trust Co. v. Ramp, 135 Tex. 84, 138 S.W.2d 531, 534 (1940), the applicable rule was stated as follows: “ ‘The general principle determining when an indebtedness infected with usury is to be deemed disinfected . . . [is]: If the tainted obligation is with the full knowledge and consent of the borrower, finally canceled or abandoned, and a new obligation, containing no part of the usury, is executed in legal form, and supported solely by the moral obligation resting upon the borrower to pay the money actually received with legal interest thereon, such new obligation is valid and enforceable. . .’”

It is true that the rule stated in Ramp contemplates (1) cancellation of the obligation tainted by usury and (2) the creation of a new obligation free from such taint as necessary to the purging of the contract of usury. Here, we have no new obligation, but only the cancellation of the tainted contract. Since such cancellation was the result of defendant’s successful plea of mental incompetency, the cancellation was accomplished with the full knowledge and consent of defendant. The fact that defendant, instead of being relieved only of the obligation to pay usurious interest, has, by his efforts, relieved himself of all liability under the usurious contract, cannot be relied on to support a holding to the effect that the cancellation of the obligation under the infected contract has not had a disinfecting effect. It cannot be persuasively argued that a partial cancellation of the debtor’s obligation under a usurious contract purges the contract of usury, while a complete cancellation does not. We conclude that defendant, by successfully avoiding, on the ground of mental incompetency, all obligation under the note, lost his right to assert his cause of action based on the usurious character of the instrument.

In view of our holding to the effect that defendant was not entitled to recover on his counterclaim, it becomes unnecessary to consider defendant’s points asserting that the trial court erred in permitting plaintiff to file a trial amendment and in refusing to make the additional findings of fact requested by defendant. Even if we agreed with defendant’s contention that these actions of the trial court constituted error, such error must be considered harmless, since the denial of defendant’s counterclaim must be upheld even if the trial amendment had not been allowed and the requested findings had been made.

The judgment of the trial court is affirmed.


text:
    Raymundo VILLARREAL, Appellant, v. John D. WENNERMARK, Appellee.
    No. 15524.
    Court of Civil Appeals of Texas, San Antonio.
    July 28, 1976.
    Duke, Branch & Schmidt, San Antonio, for appellant.
    Michael T. LaHood, San Antonio, for ap-pellee.
   CADENA, Justice.

Defendant, Raymundo Villarreal, appeals from a judgment awarding plaintiff, John D. Wennermark, the sum of $300.00 as attorney’s fees in a suit in which plaintiff sought recovery, under Article 2226, Tex. Rev.Civ.Stat.Ann., for personal services rendered by him to defendant. The judgment awarded plaintiff no recovery on his claim for personal services because, after plaintiff filed this suit but before trial, defendant paid plaintiff in full the amount claimed by plaintiff for such services.

The relevant portions of Article 2226 are as follows:

Any person having a valid claim against a person . . . for personal services rendered, . may present the same to such person . . . , and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment . . . , he may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, if represented by an attorney. (Emphasis added.)

Defendant contends that, because of the portion of the statute which we have underscored, plaintiff, having failed to “finally obtain judgment for any portion of” his claim for personal services, is not entitled to recover any amount as attorney’s fees.

In Huff v. Fidelity Union Life Insurance Co., 158 Tex. 433, 312 S.W.2d 493 (1958), the Court, holding that a plaintiff’s claim for attorney’s fees was not barred so long as the claim for personal services was not barred, said (312 S.W.2d at 500-01):

Article 2226 requires that a plaintiff must finally obtain judgment for any amount thereof (of the claim) as presented . . before a reasonable attorney’s fee can be recovered. While the attorney’s fees are not part of the demand or claim, but are in the nature of a penalty, or punishment for failure to pay a just debt . . . , and are not ordinarily recoverable in a tort or contract action . . . , they may be recovered by compliance with the statutory provisions . . . . That a suit for the statutory attorney’s fees as a separate action could not be maintained is evident from the wording of the statute. Since the right to recover is dependent upon the recovery of a judgment on a claim, limitation against the recovery of these fees would follow the limitation on the claim.

Relying on this language, the Houston and Amarillo .Courts of Civil Appeals have concluded that a debtor can escape liability for attorney’s fees by paying the amount of the claim after the creditor has engaged an attorney and filed suit, so long as the debt- or makes such payment prior to the rendition of final judgment in the case. Lamb v. Payne, 405 S.W.2d 871 (Tex.Civ.App.—Amarillo 1966, writ dism’d); Gulf Coast Operators, Inc. v. Fleming Oil Co., 393 S.W.2d 954 (Tex.Civ.App.—Houston 1965, no writ); National Homes Corporation v. C. J. Builders, Inc., 393 S.W.2d 949 (Tex.Civ.App.—Houston 1965, no writ).

In National Homes the Court said (393 S.W.2d at 951-52):

Appellant at the time it accepted payment . . . knew it had filed suit and had asked for attorney’s fees, and yet it accepted the check in full payment of all amounts owing it by appellees. It will be charged with knowledge of the provisions and limitations in . Article 2226. If it wanted to collect attorney’s fees from appellees it could have refused to accept the check unless attorney’s fees were paid. If a satisfactory settlement could not be effected, it could have prosecuted its case to judgment and in such event if it recovered any part of the claim it could also have probably collected a reasonable attorney’s fee.
Since our Supreme Court has held [in Huff] that attorney’s fees are no part of the claim or demand and the claim in this case was paid in full . . . „ the trial court properly concluded that there was nothing to contest and that appellant should not recover. Since no judgment was entered for any part of the claim, appellant under the clear language of Article 2226, . . . was not entitled to attorney’s fees . . .. Furthermore, a suit for statutory attorney fees cannot be maintained as a separate cause of action. ... In the instant case . upon settlement of the principal cause of action, nothing remained in the suit except the claim for attorney’s fees which could not be maintained as a separate cause of action.

On the other hand, the Fort Worth Court of Civil Appeals has held that payment of the amount due after the creditor has filed suit but prior to judgment does not relieve the debtor of liability for attorney’s fees. Boaz Well Service, Inc. v. Carter, 437 S.W.2d 38 (Tex.Civ.App.—Fort Worth 1969, no writ). This conclusion was reached without mentioning the contrary holdings by the Houston and Amarillo courts.

In Boaz, plaintiff sought to recover $973.04. On the day of the trial defendant filed amended pleadings admitting liability in the amount of $633.04, which he tendered into court, but denying liability for the additional $340.00 which plaintiff sought to recover. Following a jury verdict favorable to defendant, the trial court entered judgment that plaintiff take nothing. The appellate court remanded the case for proceedings to determine the amount of attorney’s fees to be awarded plaintiff, saying (437 S.W.2d at 41):

The plaintiff, represented by an attorney, finally as the result of his suit, collected approximately two-thirds of the amount of the claim presented for payment.
Therefore, under Article 2226, the plaintiff is entitled, in addition to his claim and costs, a reasonable amount as attorney’s fees.

In Horizon Properties Corporation v. Martinez, 513 S.W.2d 264, 266 (Tex.Civ.App.—El Paso 1974, writ ref’d n. r. e.), there is language indicating a belief that the amount, which defendant admits to be due and which he pays into court, is to be considered “a recovery for labor performed and materials furnished under the provisions of Art. 2226” so that plaintiff is entitled to recover attorney’s fees in such a situation. However, in Martinez the plaintiff, who had sued for $7,579.00, obtained judgment for $203.17 over and above the amount which defendant admitted owing and tendered into court. Thus, plaintiff did “finally obtain judgment for” a part of his claim and, under the provisions of the statute, was entitled to recover attorney’s fees.

The conclusion reached by the Fort Worth Court of Civil Appeals in Boaz can be supported only by reading out of the statute the language which, as our Supreme Court pointed out in Huff, “requires that a plaintiff must finally obtain judgment” for at least part of his claim “before a reasonable attorney’s fee can be recovered.” 312 S.W.2d at 500. It is true that in Huff the Supreme Court was not considering the problem which we here have before us, but the interpretation of the statutory language as requiring plaintiff to obtain judgment for some part of his claim as a condition precedent to an award of attorney’s fees cannot be disregarded as a casual observation, since the Court clearly relied on it as a basis for its holding on the question of limitations.

The statutory language is unambiguous and precludes any inquiry into the reason why plaintiff failed to “finally obtain judgment for any amount of his claim.” It can, of course, be argued persuasively that a recalcitrant debtor who forces his creditor to engage an attorney and file suit before he deigns to pay an admittedly just debt should be held responsible for the added expenditures which his unjustified failure to pay has made necessary. But the legislature has not been so generous to the creditor. The statutory language precludes inquiry as to the reason for plaintiff’s failure to obtain judgment for at least a part of his claim, and there are no words in the statute eliminating the requirement of a judgment where the debtor admits that the plaintiff’s claim is just and makes full payment prior to rendition of judgment.

The judgment of the trial court is reversed and judgment is here rendered that plaintiff take nothing.


text:
    Robert F. SCHULTZ et al., Appellants, v. AETNA BUSINESS CREDIT, INC., Appellee.
    No. 15584.
    Court of Civil Appeals of Texas, San Antonio.
    July 28, 1976.

      Frank Y. Hill, Jr., Boerne, for appellants.
    Stephen Lang, Mark J. Cannan, Lang, Cross, Ladon, Boldrick & Green, San Antonio, for appellee.
   CADENA, Justice.

Appellants, Robert F. Schultz and John W. Kenney, complain of the rendition of a summary judgment against them in the sum of $54,938.19, representing principal and interest on a note executed by appellants.

The suit was originally filed by appellants against appellee, Aetna Business Credit, Inc., and others, seeking damages for fraud allegedly committed by others in connection with appellants’ purchase of certain equipment to be used in the installation of a “laundrymat” facility. Pleas of privilege filed by all parties other than appellee were granted. Appellee filed a cross-action seeking recovery on a promissory note executed by appellants and payable to Elmco, Inc., one of the other parties to the original suit. Appellee alleged that it was the holder and owner of such note as assignee of Elmco.

Appellants first assail the judgment below on the ground that the summary judgment record fails to establish as a matter of law that the note in question was assigned by the payee to appellee.

In support of its motion for summary judgment appellee filed the affidavit of Ben E. Engstrand, appellee’s divisional vice president. The affidavit recited that on December 6,1973, Elmco, “through its proper representatives,” assigned, endorsed, and delivered the note in question to appellee. The affidavit states that appellee “is still the lawful and legal owner and holder” of the note.

Appellants assert that the statement in the affidavit to the effect that, the original payee, through its proper representatives, assigned the note to appellee, is part hearsay and part a legal conclusion on the part of the affiant and, therefore, is insufficient to establish appellee’s right to recover on the note.

Paragraph (i) of Rule 93, Tex.R.Civ.P., provides that in the absence of a sworn denial of “the genuineness of the indorsement or assignment of a written instrument upon which suit is brought by an indorsee or assignee . . ., the indorsement or assignment thereof shall be held as fully proved.” Here appellee alleged that the note in question was “assigned, indorsed and delivered” by the payee to appellee. Since appellants failed to question under oath the validity of the alleged endorsement and assignment, appellee was not required to submit proof thereof.

Appellant next argues that, assuming a valid assignment, the language of the instrument of assignment does not give ap-pellee the right to sue appellants on the note.

According to the instrument, Elmco transferred to appellee:

[A]ll of its rights, title and interests (a) in and to the within instrument and any accompanying promissory note or notes, and all rights and remedies thereunder, including the right to collect installments due thereon, and the right either in As-signee’s own name or in Assignor’s name to take such legal proceedings or otherwise as . [assignor] might have taken save for this assignment, (b) against all other parties, other than the Buyer named in said instrument, obligated for the indebtedness set forth thereon, whether so obligated by said instrument, said note or notes or otherwise, and (c) in and to the property described in said instrument. Assignor guarantees the full performance of the within instrument and prompt payment of all sums due thereunder together with all expenses of collection as specified therein without first requiring Assignee to proceed against Buyer or any other person or security. (Emphasis added.)

Appellants, by directing our attention solely to the language italicized in the above quotation from the assignment instrument, argue that the assignment vested in appellee no right to sue appellants on the note, since it speaks in terms of parties other than the Buyer. Such an interpretation is justified only if the remainder of the language is deliberately ignored. The as-signee is given the right to collect installments and to take all proceedings as might have been taken by assignor. Assignor guarantees payment without insisting that appellee “first . . . proceed against Buyer.” The only reasonable interpretation which gives effect to all of the language is that which construes the entire assignment clause as transferring to appellee all of Elmco’s right against appellants as well as against all other persons obligated for the indebtedness, whether the obligation of such other persons is evidenced by the note or not.

The judgment of the trial court is affirmed.

      . The appellee’s counterclaim was severed from the appellant’s claim.

      . The “note” is found in what is characterized as a “security agreement” in which appellants, as Buyers, agreed to pay the specified sum to Elmco.


text:
    A. B. C. TRUCK RENTAL AND LEASING CO., Appellant, v. M. B. PLETZ et al., Appellees.
    No. 15535.
    Court of Civil Appeals of Texas, San Antonio.
    July 28, 1976.
    Rehearing Denied Sept. 8, 1976.

      Craig L. Austin, Cluck, Austin & Johnson, San Antonio, for appellant.
    Wiley, Plunkett, Gibson & Allen, San Antonio, for appellees.
   BARROW, Chief Justice.

Appellant, ABC, has perfected its appeal from an instructed verdict that it take nothing in its suit against appellees, M. B. Pletz, contractor, and Fidelity & Deposit Company of Maryland, surety, to recover damages for breach of a contract to erect a truck rental facility, including a paved parking area.

On September 10, 1971, ABC contracted with Pletz for construction of the facility according to certain plans and specifications prepared by architect Lloyd Jary. Pletz subcontracted the paving contract to Ridout Paving Company. Fidelity executed a bond guaranteeing performance of the contract by Pletz. The work was completed and accepted by ABC about May 1, 1972. Cracks began to appear in the paving by September 1972, and the paved area began to break up. Test holes were drilled in October 1973 by Trinity Testing Laboratories, and it was concluded from the results that the plans and specifications in the paving contract had not been followed since the aggregate base was not a minimum of eight inches thick and the asphalt was not a minimum of two inches thick. After some inconclusive correspondence between ABC, Jary, Pletz, and Ridout concerning the condition of the area and the responsibility for repairs, ABC accepted a bid from Joe Ramon to remove the paved area and replace it according to the original plans and specifications for the sum of $25,500.00. This bid was accepted by ABC and the work was done in the spring of 1974 by Ramon.

ABC brought this suit against Pletz and Fidelity whereby it sought to recover the sum of $25,500.00 which it had paid Ramon. It alleged that it was necessary to replace all of the aggregate base and pavement because the plans and specifications had not been followed by Pletz. Pletz and Fidelity filed a third-party action and sought recovery from Jary and Ridout in the event ABC should recover on its suit. ABC amended its petition and adopted the third-party allegations against Jary.

ABC introduced evidence which raises a fact issue that the aggregate base was not a minimum of eight inches deep in that several test holes showed a base depth of from four inches to seven inches. Also, the asphalt was less than two inches thick in several places. This caused a deterioration in ten to thirty percent of the paved area. In addition, there was evidence that the remainder would continue to deteriorate. After Pletz denied any responsibility for repairs to the paving area, ABC secured bids of $25,500.00, $18,400.00, and $19,530.00 to remove the existing paving as well as the aggregate base and redo the paving subcontract. The bid of Ramon was the high bid, but it was accepted by ABC as the only responsible bid. There was testimony that no problems have been encountered with the paving area since it was replaced. There was some evidence that the drainage had been improved by Ramon.

None of the defendants offered any evidence after ABC rested its case. The evidence was thus closed with ABC’s case and the trial court then granted all defendants an instructed verdict that ABC recover nothing by its suit. Accordingly, a take-nothing judgment was entered on the claim filed by ABC. It was also ordered that Pletz and Fidelity take nothing against the third-party defendants. ABC has perfected its appeal only as to the take-nothing judgment rendered in favor of Pletz and Fidelity. ABC makes no complaint of the instructed verdict granted Jary.

The motion for instructed verdict is not in the record; but it is assumed by all parties before us that the trial court concluded that there was no evidence introduced by ABC to establish a proper measure of damages. Therefore, it is not necessary to set forth a full résumé of the evidence on the issue of liability. It is sufficient to state that there is evidence to raise a fact issue that the plans and specifications were not followed by Pletz and that the paving area was deteriorating as a result of this failure. Thus, the question narrows to: What relief is the owner entitled to recover because of the contractor’s failure to carry out the plans and specifications? It necessarily follows that the surety on contractor’s performance bond is required to carry out the obligations of the contractor if the latter fails to do so. See Employers’ Liability Assurance Corp. v. Trane Co., 139 Tex. 388, 163 S.W.2d 398 (1942).

It is fundamental that damages for breach of contract are to compensate one party to a contract for the breach by the other by awarding the value of the expected performance. 17 Tex.Jur.2d, Damages, § 51 (1960). This value is usually determined in one of two ways: (1) by awarding the difference in the market value of the property as completed and the value if completed in accordance with the plans and specifications; or (2) by awarding the cost of correction or completion. See Annot., 76 A.L.R.2d 805 (1961).

The Supreme Court, in Hutson v. Chambless, 157 Tex. 193, 300 S.W.2d 943 (1957), adopted as a general rule that the correct measure of damages for failure to complete a house in substantial accordance with the plans and specifications is the difference in value between the house as constructed and its value had it been constructed according to the contract. The concurring opinion points out that there are several exceptions to this general rule. The general rule has been followed in two cases where a parking area was allegedly not constructed in accordance with the plans and specifications. See Goad-Boles Motors, Inc. v. Victoria Paving Co., 408 S.W.2d 943 (Tex.Civ.App.—Corpus Christi 1966, no writ); Inwood Construction Co. v. Huntington Corp., 400 S.W.2d 372 (Tex.Civ.App.—Texarkana 1965, writ ref’d n. r. e.), second appeal, 472 S.W.2d 804 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.).

In Corbin on Contracts, Vol. 5, § 1089, p. 485 (1964), the rule is recognized that in building and construction contracts the cost of repair theory prevails “if this is possible and does not involve unreasonable economic waste.” This rule has been recognized and followed in Texas. See P. G. Lake, Inc. v. Sheffield, 438 S.W.2d 952 (Tex.Civ.App.—Tyler 1969, writ ref’d n. r. e.).

Here ABC sought by its pleadings to recover for the cost of removing the deteriorating pavement and properly replacing it. This measure of damages was not excepted to by appellees. Appellees thereby joined issue with ABC on this measure of damages.

We disagree with ABC that its evidence established as a matter of law that it was necessary to replace all of the existing pavement and that the bid of Ramon was a reasonable, necessary expenditure and without economic waste. We do agree, however, that its evidence raised fact issues that it was entitled to recover some damages because of Pletz’ failure to follow the plans and specifications. Therefore, the trial court erred in granting an instructed verdict.

The judgment of the trial court is re^ versed and the cause remanded.