author: REYNOLDS, Justice.

text:
    Kenneth Franklin RUTHERFORD, Appellant, v. Nancy Lee RUTHERFORD, Appellee.
    No. 8787.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 1, 1977.
    Rehearing Denied Aug. 29, 1977.
    Bob Huff & Associates, J. Don Reese and Robert E. Teel, Lubbock, for appellant.
    Brock, Waters & Galey, C. Ray Fargason, Lubbock, for appellee.
   REYNOLDS, Justice.

The question central to this appeal from that part of a divorce decree dividing the estate of the parties is whether the court, who heard only a part of the evidence pertaining to the property, reversibly erred in ordering a division of the community property without the benefit of the rest of the evidence heard by another judge acting under Rule 330, Texas Rules of Civil Procedure. We answer the question in the affirmative. Reversed and remanded.

In May of 1974, Kenneth Franklin Rutherford instituted this suit in the 137th Judicial District Court of Lubbock County. He sought a divorce from Nancy Lee Rutherford, who he alleged should be appointed managing conservator of their minor children with provision for his contribution to their support, and an equitable division of their community property. Nancy answered and cross-actioned for a divorce, appointment as managing conservator of the children, temporary support, an equitable award of a substantial portion of all property, reasonable attorney’s fees, an order for Kenneth to show cause why he should not file a sworn inventory and appraisal of all property owned by the parties, and a temporary restraining order to prevent Kenneth from disposing, secreting or encumbering the community property.

Thereafter and into August of 1975, a series of temporary orders was entered by Judge Robert C. Wright, the presiding Judge of the 137th District Court, and by another district judge sitting pursuant to the provisions of Rule 330, Texas Rules of Civil Procedure. In the main, these orders regulated the conservatorship of the children, temporary support and preservation of the community property.

Beginning in August and extending into November of 1975, three hearings on preliminary matters were held by Judge E. H. Boedeker, Judge of the County Court at Law No. 1 of Lubbock County, acting under Rule 330, T.R.C.P. On 13 January 1976, Judge Boedeker heard the evidence on the merits of the cause. In this hearing, the parties disagreed as to the values of numerous items of their property, and pursued the matter of ownership of some other items. Following the hearing, Judge Boedeker made known the judgment he would render.

Approximately one hour before Judge Boedeker was to sign his judgment on 24 May 1976, Judge Wright began a hearing on Nancy’s motion to reopen the evidence. Kenneth objected and moved that the new evidence, if any, be heard by Judge Boedeker. Judge Wñght carried both motions pending a hearing of the evidence offered. As far as it pertained to property, the evidence heard by Judge Wright concerned the sale of one item of realty, and the offer for another tract, for more than Kenneth’s sworn appraisal of the properties, the outstanding 1974 income tax liability and whether there would be a tax liability for 1975, and an inquiry into the sufficiency of the itemization of the total of the accounts payable reported by Kenneth.

Judge Boedeker testified in this hearing that he heard the evidence offered on these matters. When asked if this was new evidence, he replied, “Not to me.”

Judge Wright granted Nancy’s motion to reopen the evidence and denied Kenneth’s motion to have the evidence heard by Judge Boedeker. He ordered “that the testimony developed today in connection with the two Motions filed by the parties before the Court be made a part of the record in the merit case that the Court will now consider.” At Kenneth’s request to put forth testimony heard by Judge Boedeker on the issue of the apportionment to be made of the property, Judge Wright, remarking that “additional testimony may be required, but I think we can best get at it in this manner,” instructed counsel, because of their familiarity with the status of the property, to “set forth your proposals as to a fair, just and equitable division of the property . so that we may have before the Court your respective divisions and proposals of the division of the property based upon the evidence that has been produced and of which you are each well familiar.” Counsel submitted their written proposals which illustrated the parties’ disagreement over the values of many of the items of property as well as the total value of the estate.

On 9 September 1976, Judge Wright signed the final judgment, beginning with this recitation: “On the 13th day of January, 1976, trial on the merits was held in this cause.” The judgment decrees a dissolution of the marriage, appoints conservators and provides support for the minor children, and makes a division of the community property. The judgment enumerates sixty-seven separate categories and items of community property without the assignment of a value to any item.

Kenneth appeals. His second point of error is that Judge Wright committed reversible error in dividing the property without hearing all of the evidence as to the value of the property. Included in his brief are assertions that the statement of evidence heard by Judge Boedeker was prepared during December, 1976, and, therefore, the evidence could not have been accessible to Judge Wright. Because Kenneth’s assertions have been neither replied to nor challenged by Nancy, they are accepted as correctly establishing these facts. Rule 419, T.R.C.P.; Campbell v. Campbell, 477 S.W.2d 376, 378 (Tex.Civ.App.—Amarillo 1972, no writ).

In paragraph (e) of Rule 330, T.R.C.P., is the provision that in those counties where there are two or more district courts having civil jurisdiction,

. . .the judges of such courts may, in their discretion, exchange benches or districts from time to time,

and, as provided in paragraph (g) of the rule,

. . . any judge may hear any part of any case or proceeding pending in any of said courts and determine the same, or may hear and determine any question in any case, and any other judge may complete the hearing and render judgment in the case.

Evident from the rule is the intent that the judge who hears only a part of the cause is to determine the question(s) involved in that hearing, the resolution of which may, or may not, be utilized in rendering the final judgment. There is, however, no authorization in the rule for a judge to hear and consider only a part of the evidence adduced on an unresolved question and then render a final judgment on that question. Nor is there, except in a few situations different from the one presented here, such authority elsewhere in the law, particularly in the law governing the adjudication of property rights upon the dissolution of a marriage.

It is the law that the court shall, upon decreeing a divorce, divide the estate of the parties in a manner the court deems just and right, having due regard for the rights of each party and any children of the marriage. V.T.C.A., Family Code § 3.63. In dividing the estate, the court has wide discretion, Cockerham v. Cockerham, 527 S.W.2d 162, 173 (Tex.1975), but Article I, § 19, of the Texas Constitution mandates that no citizen of this State shall be deprived of property except by the due course of the law of the land, which includes the opportunity to be heard. Steddum v. Kirby Lumber Co., 110 Tex. 513, 221 S.W. 920, 921 (1920). The right to a hearing is fundamental and, as administered in the courts, requires an examination and determination of every legal issue according to law. Freeman v. Ortiz, 106 Tex. 1, 153 S.W. 304 (1913). To this end, a judgment in a court of record, except in those situations not material here, must be founded on sufficient facts, legally ascertained, McConkey v. Henderson, 24 Tex. 212, 214 (1859); and, in arriving at a just and right division of the estate of the parties as required by V.T.C.A., Family Code § 3.63, the court shall consider all the facts and circumstances shown by the evidence. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, 302 (1960). Thus, the adjudication of one’s property rights must be based on a consideration of all, rather than on a part, of the evidence adduced.

Given the established facts, reversible error was committed in rendering the final judgment dividing the estate of the parties without a consideration of all of the evidence adduced on the matter. Accordingly, Kenneth’s second point is sustained. In view thereof, we do not entertain his other two points.

That part of the judgment dividing the estate of the parties is reversed, and this part of the cause of action is remanded. There being no appeal from the remaining portion of the judgment, it remains undisturbed.

      . Tex.Laws 1973, ch. 532 at 1381, vested the County Court at Law No. 1 of Lubbock County with civil jurisdiction concurrent with that of the district courts in Lubbock County in “. all divorce . . . cases, including the adjustment of property rights and custody and support of minor children involved therein, alimony pending final hearing, and any and every other matter incident to divorce . . . proceedings . . Vernon’s Ann.Civ.St. art. 1970-340, § 2a (Supp. 1976-77).

      . The evidence heard by Judge Boedeker is certified to have been transcribed on 14 December 1976.


source: Caselaw Access Project

author: CHADICK, Chief Justice.

license: Public Domain

text:
    Patsy CALDWELL, Appellant, v. M. C. OVERTON, III, M. D., Appellee.
    No. 8485.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 2, 1977.
    Rehearing Denied Aug. 30, 1977.

      Timothy E. Kelley, Dallas, for appellant.
    Kleber C. Miller, Shannon, Gracey, Ratliff & Miller, Fort Worth, for appellee.
   CHADICK, Chief Justice.

This is a negligent misrepresentation case. Mrs. Patsy Caldwell sued Dr. M. C. Overton, III for damages. She alleged that he prepared a report after a partial physical examination of her but before all examination procedures were completed. The report stated in part, “I do not believe she has a real injury or residual at this time . .” Copies of the report were furnished to her treating physician, the Industrial Accident Board where she had a workmen’s compensation claim pending, her employer’s insurance carrier and her legal counsel.

Mrs. Caldwell’s pleadings also alleged that in reliance upon the report a settlement of her compensation claim was made for an amount much less than the claim’s true value. And that Dr. Overton in a second report, made after settlement had been accomplished, stated that after examination of x-ray pictures, ordered by him and in hand but unexamined at the time of the first report, he was of the opinion Mrs. Caldwell had an abnormality of her lower spine, which could cause discomfort and might require surgery. The Caldwell petition alleged that the reported abnormality made her claim far more valuable than it was in the light of the first report and that she was damaged by Dr. Overton’s negligent misrepresentation quoted above.

Mrs. Caldwell tendered evidence in general support of the allegations of her petition but did not offer testimony from a physician of Dr. Overton’s school and locality tending to prove Dr. Overton negligently, under the circumstances of this case, reached the conclusion contained in his first report. The trial judge granted Dr. Over-ton’s motion to withdraw the case from the jury, rendered a take-nothing judgment and assessed costs against Mrs. Caldwell. She has appealed and briefs a single point of error, to-wit:

“The trial court erred in granting Defendant’s Motion for a Directed Verdict inasmuch as a cause of action on negligent misrepresentation has long been recognized in this State.”

The point indicates that Mrs. Caldwell was under an impression that the trial court did not consider “negligent misrepresentation” a cause of action for which relief might be granted.

In support of her point Mrs. Caldwell cites the following cases: Wright v. United States Mortg. Co. of Scotland, 42 S.W. 789 (Tex.Civ.App.1897, writ dism’d); American Indemnity Co. v. Ernst & Ernst, 106 S.W .2d 763 (Tex.Civ.App. Waco 1937, writ ref’d); Shatterproof Glass Corporation v. James, 466 S.W.2d 873 (Tex.Civ.App. Fort Worth 1971, writ ref’d n. r. e.); and Rosenthal v. Blum, 529 S.W.2d 102 (Tex.Civ.App. Waco 1975, writ ref’d n. r. e.). And to these cases may be added, for what it is worth, Restatement, Second, Torts, Sec. 552.

Dr. Overton’s brief concedes that “negligent misrepresentation” may constitute a cause of action but insists that Mrs. Caldwell failed to prove her case. And coinci-dently, Dr. Overton acknowledges that this reviewing court must consider the evidence adduced in the trial court in the light most favorable to Mrs. Caldwell’s cause of action. Dr. Overton takes the position that he was entitled to judgment as a matter of law for several reasons and this Court sustains his counterpoint that “There was no evidence, expert or otherwise, introduced to show that any medical standard had been violated . . . ” by Dr. Overton.

Dr. Overton concluded at the time he first examined Mrs. Caldwell that additional x-ray pictures were needed in order to determine her medical condition and such pictures were promptly produced and delivered to him. Without referring to these pictures he prepared and distributed his first report. Mrs. Caldwell grounds negligence upon this conduct arguing that Dr. Overton imposed a standard of care upon himself by ordering additional pictures and then violated the standard by failing to examine and consider them before making the representation contained in the first report. The standard of care to be applied in determining the negligence or not of the representation in issue becomes decisive in this appeal.

Undertaking to make a medical examination of Mrs. Caldwell, in the absence of an inconsistent agreement, imposed a duty upon Dr. Overton to exercise at least the same reasonable degree of care, skill and diligence exercised by other physicians of his school of medicine in the same locality. 45 Tex.Jur.2d, Physicians and Other Healers, Sec. 117. Such duty or standard of care, skill and diligence is the measure of Dr. Overton’s obligation to Mrs. Caldwell. The representation in question was a physician’s conclusion about the medical condition of a patient and the conclusion could only have been negligently reached by the physician’s failure to perform his duty of reasonable care, skill and diligence. It seems obvious and beyond argument that a conclusion induced by negligence must exist before it may be communicated to another as a negligent representation.

No case considering the standard of care a physician must exercise, under circumstances shown by this record, has been cited or found but the stated standard of conduct appears to be logically compelled by the general rule that the negligence of the physician must be proven by the testimony of a practitioner of the same school of medicine as that of the alleged negligent physician. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); Edwards v. United States, 519 F.2d 1137 (5th Cir. 1975); 45 Tex.Jur.2d, Physicians and Other Healers, Sec. 131.

Restatement, Second, Torts, Sec. 552, Comment e, confirms the foregoing view of the standard in a negligent misrepresentation case. The comment says:

“When the information concerns a fact not known to the recipient, he is entitled to expect that the supplier will exercise that care and competence in its ascertainment which the supplier’s business or profession requires and which, therefore, the supplier professes to have by engaging in it.” (Emphasis added.)

This text represents the tentative consensus of numerous legal scholars and is entitled to great respect. To sum up, this Court concludes that when a patient in doubt about his health and bodily condition requests and is supplied medical information, such as a diagnosis or a prognosis, the patient is entitled to expect the medical practitioner to exercise the care and competence in reaching an opinion that the practitioner’s profession requires and which the practitioner professes to have by engaging in medical practice.

Since the record contains no evidence competent to show that Dr. Overton’s opinion of Mrs. Caldwell’s medical condition was negligently reached or that he was negligent in his conclusion, there is no evidence that he supplied negligent information to Mrs. Caldwell and the others that received his report. Appellant’s counterpoint, to the extent previously indicated, is sustained.

Finding no reversible error, it becomes the duty of this Court to affirm the judgment of the trial court. It is so ORDERED.

      The two most recent Texas cases considering negligent misrepresentation are Shatterproof Glass Corporation v. James and Rosenthal v. Blum and both cite and place reliance upon this text although the Texas Supreme Court has not yet manifest approval thereof.


author: J. CURTISS BROWN, Chief Justice.

text:
    Wallace MAYAD, Appellant, v. Fred RIZK et al., Appellees.
    No. 1557.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Aug. 3, 1977.
    Rehearing Denied Aug. 24, 1977.

      Ronald J. Waska, Bernus Wm. Pischman, Laekshin, Nathan & Berg, Houston, for appellant.
    Grant Cook, Reynolds, Allen & Cook, Houston, for appellees.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from an order overruling appellant’s motion for new trial which was filed following refusal by the trial court to reinstate this cause on its docket after it had been dismissed for want of prosecution.

Appellant’s contentions on appeal are: (1) the court failed to comply with the requirements of Tex.R.Civ.P. 165a with respect to mailing of notices; (2) Local Rule 12(t) of the District Courts of Harris County conflicts with rule 165a; (3) published notices of intention to dismiss omitted references to this case; (4) the court abused its discretion in failing to reinstate the case because plaintiff’s failure to act was not the product of conscious indifference but was the result of accident or mistake; (5) the conclusion of the court that the failure to act was the product of conscious indifference was against the great weight and preponderance of the evidence; and (6) the order overruling plaintiff’s motion to retain the case on the docket purported to determine substantive rights of the parties thus rendering the prior dismissal interlocutory. Points of error numbers 4, 5, and 6 are not assigned as grounds for new trial in the motion for new trial filed on July 26, 1976 and, hence, no basis for appellate review of these contentions is available to appellant.

The record reflects that this suit was filed by Wallace Mayad (plaintiff or appellant) against Fred Rizk, et al, (defendants or appellees) in February 1971. Although not essential to our disposition of this matter neither the original petition nor the cross-action to which the parties refer in the evidence on the hearing for motion for new trial are included in the transcript. The record reflects the usual trial settings which resulted in no disposition of the case for one reason or the other. It is significant that for the two previous years before the events giving rise to this controversy the cause had been placed on the dismissal docket pursuant to local rule 12(t) and had been retained on the docket on motion of appellant.

In February of 1976, the case was again placed on the dismissal docket. No motion to retain the case was filed, and, accordingly, on April 5, 1976, the court entered an order dismissing the case. On June 16, 1976, appellant filed a motion to retain the case on the docket and requested a hearing. After the hearing on July 12, the motion was overruled. Thereafter, appellant filed a second motion to retain the case, requesting a hearing which was also overruled on July 13. The court found that: (1) appellant failed to allege in his pleading that his failure to act before filing the June 16 motion was not intentional or the result of conscious indifference; (2) appellant was familiar with local rule 12(t); and (3) appellant’s failure to show cause why the case should not have been dismissed for want of prosecution on April 5, was intentional or the result of conscious indifference and not due to accident or mistake.

Appellant alleges that local rule 12(t) governing the process for dismissal of cases for want of prosecution in the Harris County District Courts is in direct conflict with the express provision of Tex.R.Civ.P. 165a also dealing with dismissal for want of prosecution. Local rule 12(t) provides:

On the first Monday of April of each year at 10:00 A.M. each uncontested Divorce case which has been on file for more than six (6) months, and each civil case other than uncontested divorce cases, which have been on file more than three (3) years shall be set for hearing for all parties to show cause why same should not be dismissed for want of prosecution; and without good cause shown at or before such hearing such cases shall be dismissed by the Court for want of prosecution without further notice. While counsel and parties not represented by counsel may be notified by postcard mailed to their addresses of record in the respective cases, and the list of such cases may be posted, this rule shall constitute notice of such hearings and counsel (and all parties not represented by counsel) shall keep informed as to the length of time each of their cases has been on file. [Emphasis added.]

Rule 165a states in pertinent part that

[a] case may be dismissed for want of prosecution on failure of any party seeking affirmative relief or his attorney to appear for any hearing or trial of which he had notice, or on failure of such party or his attorney to request a hearing, or take some other action specified by the court, within fifteen days after the mailing of notices of the court’s intention to dismiss the case for want of prosecution. The notices of intention to dismiss shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service. Notice of the signing of the order of dismissal shall be given as provided in Rule 306d. Failure to mail notices as required by this rule shall not affect the finality of any order of dismissal except as provided below.
Within thirty days after the signing of the order of dismissal, the court shall reinstate the case upon finding, after hearing, that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake. Where after a hearing the court finds that neither the party nor his attorney received a mailed notice, or acquired actual notice in any manner, of either the court’s intention to dismiss or the order of dismissal prior to the expiration of twenty days after the signing of such order, the court may reinstate the case at any time within thirty days after the party or his attorney first received either a mailed notice or actual notice, but in no event later than six months after the date of signing the order of dismissal. [Emphasis added.]

Appellant attacks the apparent discretionary notice provision of local rule 12(t) that the parties “may be notified by postcard mail . . . .” of the court’s setting the case on the dismissal docket. [Emphasis added.] He contends that this provision is in direct conflict with the mandatory notice requirement of rule 165a which states that “[t]he notices of intention to dismiss shall be sent by the clerk to each attorney of record . . . .” [Emphasis added.]

Rule 165a expressly provides that notices of intention to dismiss shall be sent to each attorney and that notice of signing of the order of dismissal shall be given as provided in rule 306d. The Texas Rules of Civil Procedure govern and must prevail over any provision of the local rule. Tex.R.Civ.P. 817. Unfortunately for appellant, there is some evidence that the clerk complied with the provisions of rule 165a.

On hearing on the motion for new trial filed on July 26,1976, the attorney handling the case for appellant testified that no notice of the placing of this cause on the dismissal docket had been received until actual notice on June 15, 1976. Testimony on such hearing also developed that counsel for appellees had a cross-action on file and hence should have also received notice. No such card was received by the attorneys for the appellees. The clerk of the court, however, testified that he had mailed the notice to the attorneys involved in the case in question in February 1976. He further testified that following the entry of the order of dismissal on April 5, 1976, he mailed the second notice complying with rule 306d. Proof of mailing of a properly addressed and stamped postcard gives rise to a rebut-table presumption that the postcard was duly received by the addressee. The trial court made a finding that neither card was returned for inadequate address or other reason. The testimony of appellant’s counsel that the notices were never received cannot be held to be so disinterested as to overcome the inference flowing from the fact of the mailing. Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854, 857-58 (1942). As an original matter we would have held contrary to the trial court and found that the notices were not received. It is significant to us that neither appellant nor appellees’ counsel received either one of two notices. It is also unusual that the page containing this case was included among the pages posted in the courtroom but the page was one of several missing from the master list of cases to be dismissed in the main office of the district clerk. The law concerning the reinstatement of dismissals for want of prosecution may be a trap for the unwary. See Southern Pacific Transp. Co. v. Stoot, 530 S.W.2d 930 (Tex.Sup.1975); Barrett v. Mantooth, 554 S.W.2d 799 (Tex.Civ.App.—Houston [14th Dist.] 1977). After the expiration of 30 days from the dismissal of the case for want of prosecution, a court may reinstate it when, after a hearing, it finds that neither the party nor his attorney received a mailed notice or actual notice of the court’s intention to dismiss or the order of dismissal prior to 20 days after the signing of the order. Tex.R.Civ.P. 165a. The hearing must be held, and the case must be reinstated, if at all, within 30 days after the party or his attorney first received either mailed or actual notice, but not later than six months after the date of signing the order of dismissal. Barrett v. Mantooth, supra; Caddell v. Gray, 544 S.W.2d 481, 483 (Tex.Civ.App.—Waco 1976, no writ); Riley v. Mead, 531 S.W.2d 670, 672 (Tex.Civ.App.—El Paso 1975, no writ); Cosper v. Aetna Life & Casualty Co., 513 S.W.2d 121, 122-23 (Tex.Civ.App.—Dallas 1974, no writ).

We believe that the trial court should liberally construe rule 165a. That rule provides that the court “shall” reinstate a case if it finds that the parties’ failure to act was not intentional or the result of conscious indifference but due to accident or mistake. In our opinion the same standards of determining this question should be applied as to default judgments. As established in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939), “[a] default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident . . . Some excuse, not necessarily a good one, is sufficient. Moreover, in proving that a party’s failure to act was not intentional or the result of conscious indifference, he should only be required to give a “reasonable” explanation as provided under Tex.R.Civ.P. 21c dealing with extensions of time for filing on appeal. Cf. Meshwert v. Meshwert, 549 S.W.2d 383 (Tex.Sup.1977).

In this case, the evidence strongly indicates that appellant’s failure to file a motion to retain the case was due to an accident or mistake. While the fact that neither party received notice as required, and the page listing appellant’s case on the dismissal docket was missing from the district clerk’s master list does not conclusively prove a failure to send the notices, it should have been sufficient to prove that appellant’s failure to act was not intentional or the result of conscious indifference.

The supreme court, however, has established that it is necessary for the courts to clear their dockets of unprosecuted cases because the passage of time “presents substantial impediments to the full and fair determination of the facts . . . .” Southern Pacific Transp. Co. v. Stoot, 530 S.W.2d at 931. It is also correct to say that a party should be charged with knowledge of the local rules and with notice of all orders that are rendered affecting his case. See Pentikis v. Texas Elec. Serv. Co., 470 S.W.2d 387 (Tex.Civ.App.—Fort Worth 1971, writ ref’d n. r. e.).

A fact issue having been presented for the trial court’s determination, we affirm the order of the court overruling appellant’s motion for new trial. All points properly presented for review having been duly considered, the judgment of the trial court is affirmed.

Affirmed.


author: HALL, Justice.

text:
    UNITED DISTRIBUTING OF TEXAS, INC., Appellant, v. IRVING BANK AND TRUST COMPANY, Appellee.
    No. 5688.
    Court of Civil Appeals of Texas, Waco.
    Aug. 4, 1977.
    Rehearing Denied Aug. 25, 1977.
    Matthew M. Julius, Whitehurst & Guest, Dallas, for appellant.
    C. R. Tabor, Tabor & Cline, 0. Glenn Weaver, Irving, for appellee.
   HALL, Justice.

United Distributing of Texas, Inc. (plaintiff) brought this suit against Irving Bank And Trust Company (defendant) asserting that defendant converted plaintiff’s funds by accepting and negotiating certain checks issued by Heritage Building Company which named plaintiff and Four Seasons Air Conditioning Company as joint payees, but which were endorsed only by Four Seasons. Plaintiff prayed for the face amounts of the checks. After a hearing without a jury, a take-nothing judgment was rendered against plaintiff. It appeals. We affirm.

The record shows that in 1967,1968, 1969, and 1970, plaintiff sold air conditioning equipment to Herschel Vickers d/b/a Four Seasons Air Conditioning Company on a credit account. Vickers installed this equipment in apartment projects and houses under construction by nine builders. One of the builders was Heritage Building Company. Vickers maintained his only bank checking account with defendant in the name of Four Seasons. From time to time Vickers deposited funds received by him from Heritage and the other builders, and borrowed funds, into the checking account. In April, 1968, Vickers executed a written assignment to plaintiff of all proceeds he would be due from Heritage for air conditioning equipment installed by him in Heritage projects. A copy of the assignment was delivered to Heritage, and with Vickers’s expressed consent Heritage agreed to pay all proceeds due to Vickers by checks listing both plaintiff and Four Seasons as joint payees. The eleven checks which are the subject of this litigation were issued by Heritage in compliance with the agreement and were payable jointly to plaintiff and Four Seasons. These checks represented weekly “draws” by Vickers as he completed work on the Heritage project, and included payment to him for labor as well as for all equipment installed which included materials such as metal ducts sold to him by suppliers other than plaintiff. The first was issued on November 6, 1968, and the last was issued February 5, 1969. They totaled $28,658.10. Without knowledge of the assignment and without plaintiff’s consent, defendant accepted these checks as they were issued and credited them to the checking account of Four Seasons even though they were endorsed only by Four Seasons. The checks were paid by the drawee bank. In 1970 or later (the record is uncertain) Vickers was adjudged a bankrupt, and plaintiff has lost approximately $30,000.00 on his account.

Plaintiff’s case was defended on the theory that plaintiff had been paid its interest in the checks, and accordingly suffered no damages as a result of the conversion sued upon. Findings of fact and conclusions of law were not requested by the parties nor filed by the court. Plaintiff contends the evidence is insufficient to support the implied finding that it has been paid the proceeds of the checks.

The assignment upon which the cheeks in question were issued by Heritage was a collateral assignment only on the specific air conditioning equipment sold to Vickers by plaintiff and used by Vickers on Heritage jobs, and was executed to secure plaintiff in the payment of only that equipment. It was not a general assignment. Vickers testified that the last charge against him by plaintiff for equipment placed on Heritage projects was on December 16, 1969, in the amount of $1,722.97. He also testified directly that plaintiff had been paid in full for all equipment placed on the Heritage jobs. Plaintiff admitted that all payments to it by Vickers were credited on a first in, first out, accounting basis to offset the oldest outstanding balance. All payments by Vickers were made from his Four Seasons’s checking account with defendant. The last of the eleven checks in question was issued by Heritage on February 10,1969. On that date Vickers owed plaintiff $25,202.44. Since that time he has paid plaintiff approximately $52,000.00 on his account. Plaintiff’s records of the account show a “zero” balance on November 7, 1969, and thus support the inference that all invoices charged to the account prior to that time had been paid, and that the eventual loss suffered by plaintiff on the account resulted from charges to Vickers after that date and was not based upon the transactions in question.

Specifically, plaintiff contends that the proof of payment by Vickers was not admissible and that, in any event, it does not sufficiently trace the proceeds of the checks to plaintiff. We overrule these contentions. Plaintiff did not seek nominal damages on the trial and does not complain in that regard on this appeal. Defendant was entitled to show that plaintiff had received the proceeds due it under the checks sued upon and that plaintiff did not suffer actual damages as a result of defendant’s conversion. DoAll Dallas Company v. Trinity National Bank of Dallas, 498 S.W.2d 396, 404 (Tex.Civ.App.—Texarkana 1973, writ ref’d n. r.e.). The evidence we have recited is legally sufficient to support implied findings of those facts. The findings support the judgment.

Plaintiff’s remaining complaints relate to rulings on its exceptions to defendant’s pleadings. Some are rendered immaterial by our holdings, above. The others are without merit and are overruled.

The judgment is affirmed.


author: JAMES, Justice.

text:
    Jessie Koepp HUFF, Appellant, v. Louis E. HUFF, Jr., Appellee.
    No. 5719.
    Court of Civil Appeals of Texas, Waco.
    Aug. 4, 1977.
    Rehearing Denied Aug. 25, 1977.

      L. W. Anderson, Anderson, Henley, Shields, Bradford, Pritchard & Miller, Dallas, for appellant.
    Fred H. Benners, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a divorce case. The parties had no children born to their marriage. The dispute is over the division of property. From a judgment favorable to the husband, Ap-pellee Louis E. Huff, Jr., the wife Jessie Koepp Huff appeals. We affirm.

The parties, both in their middle fifties in age, were married in New Orleans, Louisiana, on September 29, 1967. Both parties had their domicile in Louisiana at and prior to their marriage. Both were employed, earning their respective livelihoods at the time of their marriage. Prior to their marriage, Mrs. Huff had married and divorced two previous husbands, and had two daughters by one of her prior marriages. Mr. Huff had been married once previously and was divorced by his previous wife and had two sons by said previous marriage. Mr. Huff was unwilling to marry Mrs. Huff unless she was agreeable to entering into a pre-marital agreement whereby they mutually contracted that they would each retain and manage all of their respective property and earnings as their respective separate property and have no community property rights. Mrs. Huff knew that Mr. Huff would not marry her unless they entered into such a contract. Mrs. Huff wanted to marry Mr. Huff and induced him into marrying her by agreeing to enter into such a contract. Therefore two days before their marriage, on September 27 1967, he and she executed a pre-marital agreement, which contains the following language exclusive of its formal parts, to wit:

“I.

“The said intended husband and wife shall be separate in property. Accordingly, they hereby formally renounce those provisions of the Revised Civil Code which establishes a community of acquets and gains between husband and wife.

“II.

“All property and effects of the said husband and wife, whether owned by him or her at the time of the celebration of said intended marriage, or acquired during the marriage, either as fruits and revenues from property brought into the marriage, or income from professions, occupations or labors performed by either during the existence of the marriage are hereby declared to be separate property, and that of the wife, separate and paraphernal property, whether or not the said property is maintained in their own separate and individual names and/or in joint accounts under both names and whether or not co-mingled with the funds of each other, and they and each of them do hereby expressly reserve to themselves individually the entire administration of their respective particular movable and immovable property, and the respective free enjoyment of each of their revenues.” The instrument was signed by the parties in the presence of two witnesses and a Notary Public.

It is undisputed that this pre-marital agreement was legal and enforceable under the laws of the State of Louisiana.

About nine months after their marriage, in June 1968, the parties moved to Dallas, Texas, and made their home there until January 1975, when Mrs. Huff left Mr. Huff, sued him for divorce in Texas, and moved back to Louisiana.

At the time the parties married, Mrs. Huff was employed but had no property. Mr. Huff, on the other hand, owned property-

When the parties moved to Dallas, Texas, in June 1968, Mr. Huff transferred some $41,000.00 in cash and about $66,000.00 worth of stock from New Orleans, Louisiana, to Dallas, Texas. Then in 1969, Mr. Huff inherited $41,700.00 from his mother; and thereafter, in 1972, he inherited $24,-636.00 from his sister. Mr. Huff purchased a liquor store in Dallas, Texas, shortly after the parties moved to Texas. He operated this liquor store personally until a time not long before the separation of the parties. He sold the liquor store business and derived a profit of the corporate business assets of $21,413.00.

During most of the time the parties lived in Dallas, Texas, Mrs. Huff was employed by a medical clinic in Dallas, and was earning $965.00 per month plus being furnished an automobile, at or about the time the parties separated. Mrs. Huff’s two daughters lived in the home for the most part during the marriage; whereas Mr. Huff’s two sons were grown and lived elsewhere.

During their marriage, Mrs. Huff kept a separate bank account for her earnings, and largely spent her earnings on herself and her two daughters as she pleased. Mr. Huff kept his money and property separately also, except for a joint account in which Mr. Huff deposited money each month to take care of housing, food, and normal living expenses for the family. The evidence shows that Mr. Huff normally spent about $700.00 per month to feed, house, and support himself, Mrs. Huff and her two daughters.

The evidence shows that Mr. Huff brought a total of some $194,000.00 of separate money and property into the marriage, as hereinabove itemized. He testified that at the time of the divorce his separate property had been reduced down to about $87,000.00, he having spent all that he had earned during the marriage, and in addition thereto had depleted his separate property by about $100,000.00. Mrs. Huff disputed this, contending that he had not depleted his separate property that much.

Trial was had before the court without a jury, after which the trial court entered a divorce judgment in which the pre-marital agreement was upheld. The court found that no community property was accumulated during the marriage. However, the trial court found that Mr. Huff and Mrs. Huff were joint tenants in a lot located in Smith County, Texas, and 25Vh shares in Allstate Stock Fund. The court awarded to Mr. Huff and Mrs. Huff each an undivided one-half interest in this lot and this stock. Then he awarded to Mrs. Huff as her separate property a $2000 life insurance policy, all checking accounts and savings accounts in her name, and all furniture, jewelry, and personal effects in her possession. Then the trial court awarded all the property in the name, possession, or control of Mr. Huff to him as his separate property. This consisted of real estate, stock, cemetery lots, personal effects, an automobile, checking and savings accounts, and U.S. Government Bonds. Each party was adjudged to be responsible for his or her respective attorneys’ fees, and the costs were adjudged against Mr. Huff.

The trial court filed extensive findings of fact and conclusions of law; however, under our view of the case it is not necessary to detail same.

Appellant Mrs. Huff asserts that the Louisiana pre-marital contract in question is illegal and unenforceable in Texas because it violates Article XYI, Section 15 of the Texas State Constitution. We do not agree with this contention, and hold that the trial court acted properly in enforcing this pre-marital contract.

Article XVI, Section 15 of the Texas State Constitution in effect defines the separate property of the wife, provides that the Legislature shall pass laws more clearly defining the rights of the wife in relation to both her separate property and the community property, and further provides that husband and wife may from time to time by written instrument without prejudice to pre-existing creditors partition between themselves all or any part of their existing community property, or exchange between themselves their interests in community property, so as to make such property the separate property of each such spouse.

In our opinion, the pre-marital contract in question does not violate Article XVI, Section 15 in any way. Moreover, we believe the contract in question is sanctioned by statute in Texas. In June 1968, when the Huffs moved from Louisiana to Texas, Article 4610, Vernon’s Texas Civil Statutes, as amended effective January 1, 1968, was in effect and read in its pertinent parts as follows:

“Art. 4610. Matrimonial Property Agreements.

“Without prejudice to preexisting creditors, before marriage persons intending to marry may by a subscribed, written instrument enter into a matrimonial property agreement as they may desire." (emphasis supplied).

Article 4610 was repealed effective January 1, 1970, and Section 5.41 of the Texas Family Code was in effect thereafter during the time of separation and divorce of the parties herein and at all times since, which reads in its pertinent parts as follows:

“Sec. 5.41 Agreement in Contemplation of Marriage.

“(a) Before marriage, persons intending to marry may enter into a marital property agreement as they may desire, (emphasis supplied).

“(b) The agreement must be in writing and subscribed by all parties.”

We believe Article 4610 and Section 5.41 (of the Family Code) expressly authorize a pre-marital agreement such as the one executed by Appellant and Appellee, and operated under by them in Louisiana and later in Texas, up until the separation and divorce.

The trial court in the divorce judgment upheld and gave effect to this agreement in its division of the property belonging to the parties, and we cannot say the trial court abused its discretion therein. As our Supreme Court said in Bell v. Bell (Tex.1974), 513 S.W.2d 20 at page 22:

“Texas courts have held that such (property) division does not have to be equal, and appellate courts have held it must be presumed that the trial court exercised its discretion properly, and that a case should be reversed only where there is a clear abuse of discretion, (citation) . . It is well established that Texas divorce courts are given wide discretion in making division of the property of the parties. That discretion will not be disturbed on appeal unless the court has clearly abused its discretion. Hedtke v. Hedtke (Tex.1923) 112 Tex. 404, 248 S.W. 21.” Also see Bryant v. Bryant (Waco CA 1972), 478 S.W.2d 602, no writ.

Appellant has other points and contentions, most or all of which are rendered moot by our view and disposition of the case. All are overruled for want of merit. Finding no reversible error in the record, judgment of the trial court is affirmed.

AFFIRMED.


text:
    Albert J. COHEN, Temporary Administrator of the Estate of Byron M. McKnight, Deceased, Appellant, v. Gene McCUTCHIN et al., Appellees.
    No. 5724.
    Court of Civil Appeals of Texas, Waco.
    Aug. 4, 1977.
    Rehearing Denied Aug. 25, 1977.

      R. W. Calloway, Turner, Rodgers, Sailers, Jordan & Calloway, Dallas, for appellant.
    John L. Roach, Inc., Dallas, for appellees.
   HALL, Justice.

Appellant, Albert J. Cohen, Temporary Administrator of the Estate of Byron M. McKnight, Deceased, brought this suit against Gene McCutchin, Jerry McCutchin, and Alma McCutchin, appellees, for sums due from appellees under a contract allegedly between McKnight and appellees, asserting that in the contract McKnight agreed to assign certain mineral interests to each appellee, and appellees (after payment of an initial sum) agreed to pay McKnight shares of the cost of drilling and completing a test oil and gas well. Appellees answered with a general denial, and also pleaded the statute of frauds (Section 26.01, Vernon’s Tex.Bus. & Com.Code) in defense of appellant’s cause of action. All parties filed motions for summary judgment. Appellant’s motion was overruled, appellees’ motion was granted, and judgment was rendered that appellant take nothing. He appeals. We affirm.

Appellant alleged in his petition that on June 3, 1974, McKnight acquired a 25% working interest in an exploratory oil and gas well “described generally as the Bar-stow Townsite Unit No. 2, Ward County, Texas”; that thereafter McKnight entered into written agreements with appellees whereby they acquired the following individual interests in the well: Gene McCutch-in 8.7143%, Jerry McCutchin 5.7143%, and Alma McCutchin 5.7143%; that “a copy of such agreements is attached hereto”; that by such agreements appellees agreed to pay their percentage of the cost of the drilling and completion of the test well and of the expense of operations attributable to their respective working interests; that Gene McCutchin has paid the sum of $90,082.61, Jerry McCutchin has paid $59,070.66, and Alma McCutchin has paid $59,070.66; and that after giving appellees credit for their payments there remains due to appellant $115,072.62 by Gene McCutchin, $75,457.49 by Jerry McCutchin, and $75,457.49 by Alma McCutchin. The sums claimed due by appellant were supported by invoices and other business records attached to his petition and verified by him.

The letter agreements referred to in appellant’s petition (and attached to it) upon which his claim is based are two in number and are signed by appellees. The first reads:

June 12, 1974
Re: Barstow Townsite Unit No. 2, Ward County, Texas, as said Unit is described in instrument of record in Vol. 355, pages 415 et seq. of Deed Records of said County
Gentlemen:
This Letter Agreement, when accepted by you, will confirm our oral agreement whereby we agree to assign to you and you agree to acquire and pay for an undivided 17.143% interest in the above Unit, subject to the following terms and conditions:
1. Reference is made to the following exhibit attached hereto and made a part hereof:
A. Map in which said Unit is bordered in yellow.
2. We agree to commence or cause to be commenced on or before June 15, 1974 operations for the drilling of a test well at the location shown on Exhibit A and drill same to a test of the Pusselman formation at approximately 18,000 feet. If same is productive, we will complete it as a producer and install all necessary equipment and facilities for the production of oil and/or gas. The cost of a completed producing well is estimated at $1,725,000.
3. You agree to pay the following costs:
A. The sum of $17,143 commissions heretofore paid by us.
B. Your percent of the cost of the drilling and completion of the test well, and of the expense of operations attributable to your working interest.
Receipt is acknowledged of the sum of $17,143 and further payment shall be made from time to time upon billing during progress of drilling and completion of the well.
4. Prior to payout of the well costs, your expense interest will be 17.143% and your revenue interest will be 12.343%. After payout of the well costs and until payout of the item set forth in paragraph 3-A, your expense interest will be 8.5715% and your revenue interest will be 6.8572%. After payout of both well costs and the item in paragraph 3-A, we will come in for one-fourth (V4) of your then existing interest and thereafter, your expense interest will be 6.4286% and your revenue interest will be 5.1429%.
The interest covered by this letter shall be owned in the manner set forth opposite your signatures.
Gene McCutchin 05.7143%
Jerry McCutchin 05.7143%
Alma McCutchin 05.7143%
The second letter agreement reads as follows:
June 12, 1974
Re: Barstow Townsite Unit No. 2, Ward County, Texas, as said Unit is described in instrument of record in Vol. 355, pages 415 et seq. of Deed Records of said County
Mr. Gene McCutchin
4230 LBJ Freeway
Dallas, Texas 75234
Dear Mr. McCutchin:
This Letter Agreement, when accepted by you, will confirm our oral agreement whereby we agree to assign to you and you agree to acquire and pay for an undivided 3.00% interest in the above Unit, subject to the following terms and conditions:
1. Reference is made to the following exhibit attached hereto and made a part hereof:
A. Map in which said Unit is bordered in yellow.
2. We agree to commence or cause to be commenced on or before June 15, 1974 operations for the drilling of a test well at the location shown on Exhibit A and drill same to a test of the Fusselman formation at approximately 18,000 feet. If same is productive, we will complete it as a producer and install all necessary equipment and facilities for the production of oil and/or gas. The cost of a completed producing well is estimated at $1,725,000.
3. You agree to pay the following costs:
A. The sum of $3,000 commissions heretofore paid by us.
B. Your percent of the cost of the drilling and completion of the test well, and of the expense of operations attributable to your working interest.
Receipt is acknowledged of the sum of $3,000.00 and further payment shall be made from time to time upon billing during progress of drilling and completion of the well.
4. Prior to payout of the well costs, your expense interest will be 3.00% and your revenue interest will be 2.16%. After payout of the well costs, your expense interest will be 1.50% and your revenue interest will be 1.20%.
The interest covered by this letter shall be owned in the manner set forth opposite your signature.
Gene McCutchin 3%
Both letters were mailed to McKnight with a letter of transmittal reading as follows:
GENE McCUTCHIN
Oil Production, Investments And Real Estate
4230 LBJ Freeway, Suite 200 Dallas, Texas 75234
September 12, 1974
Mr. Byron McKnight
P.O. Box 297
Hobbs, New Mexico 88240
Dear Byron:
Enclosed are checks from Alma McCutchin, Jerry McCutchin, and Gene McCutchin. This covers their portions of costs on the Barstow Townsite Unit No. 2, Ward County, Texas, as reflected by the executed Agreements also enclosed.
Very truly yours,
GENE McCUTCHIN
By
/S/ Hubert H. Thompson. Jr.
Hubert H. Thompson, Jr.
HHTjr/h
enclosures

McKnight sent invoices to appellees in September, 1974, and in November, 1974, for “your share” of accrued drilling expenses on the well. Appellees paid these bills with their individual checks. McKnight deposited the checks to his “oil and gas account” in his bank, and retained stubs attached to the checks. The invoices bore McKnight’s letterhead and were addressed to the appellees individually. The check stubs showed the name of the remitting appellee. The deposit slips named McKnight and listed the names of appellees beside the amounts of their payments.

In their motion for summary judgment, appellees pleaded, “The instruments dated June 12, 1974, upon which Plaintiff’s suit is founded, do not name Byron M. McKnight . do not constitute agreements between said Byron M. McKnight and these defendants, and do not comply with the provisions of [the statute of frauds].” Ap-pellees argue specifically that the letter agreements do not identify McKnight as a party to them and do not contain the promise of appellees “to pay McKnight any amount for anything”; and that, accordingly, appellant’s cause of action on those instruments is unenforceable by reason of the statute. We agree.

In its pertinent parts, the statute of frauds provides that a contract for the sale of real estate is not enforceable unless the agreement, or a memorandum of it, is in writing and signed by the person to be charged with it. The mineral interest in question is “real estate” within the terms of this statute. Taber v. Pettus Oil & Refining Co., 139 Tex. 395, 162 S.W.2d 959, 962 (1942).

Whether a contract sued upon falls within the prohibition of the statute is a question of law. Bratcher v. Dozier, 162 Tex. 319, 346 S.W.2d 795, 796 (1961). It is settled that to comply with the statute the written memorandum evidencing the contract must furnish within itself, or by reference to some other existing writing, and without resort to parol evidence, all the essential elements of the contract sued upon. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945); Osborne v. Moore, 112 Tex. 361, 247 S.W. 498, 499 (Tex.Com.App.1923, opinion adopted); Boddy v. Gray, 497 S.W.2d 600, 603 (Tex.Civ.App.— Amarillo 1973, writ ref.). These elements include an identification of the parties to the contract. Grafton v. Cummings, 99 U.S. 100, 25 L.Ed. 366 (1878); Johnson v. Granger, 51 Tex. 42, 45 (1879); Walker Avenue Realty Co. v. Alaskan Fur Co., 131 S.W.2d 196, 198 (Tex.Civ.App.—Galveston 1939, writ ref.); Watson v. Brazelton, 176 S.W.2d 216, 218 (Tex.Civ.App.—Waco 1943, no writ); 37 C.J.S. Frauds, Statute of § 193, p. 677.

In Grafton v. Cummings, supra, Grafton signed an instrument in which he agreed to purchase certain real estate known as “Glen House” sold at auction in the State of New Hampshire. He was the only person named in the instrument. It referred to another instrument which named Cummings, but did not identify him as the owner or seller of the premises. Grafton later determined not to buy, was sued by Cummings on the contract, and interposed the New Hampshire statute of frauds which reads identically to ours. In the course of its opinion holding the contract unenforceable under the statute, the Court said:

“The distinct objection to the instrument, as so presented, is, that the other party to the contract of sale is not named in it, and can only be supplied by parol testimony.
“The statute not only requires that the agreement on which the action is brought, or some memorandum thereof, shall be signed by the party to be charged, but that the agreement or memorandum shall be in writing. In an agreement of sale there can be no contract without both a vendor and a vendee. There can be no purchase without a seller. There must be a sufficient description of the thing sold and of the price to be paid for it. It is, therefore, an essential element of a contract in writing, that it shall contain within itself a description of the thing sold, by which it can be known or identified, of the price to be paid for it, of the party who sells it, and the party who buys it. There is a defect in this memorandum in giving no indication of the party who sells. If Grafton was bound to purchase, it was because somebody was bound to sell. If he was bound to pay, somebody was bound to receive the money and to deliver the consideration for the price so paid.
“There can be no bargain without two parties. There can be no valid agreement in writing without these parties are named in such manner that someone whom he can reach is known to the other to be bound also. No one is bound in this paper to sell the Glen House, or to convey it. No one is mentioned as the owner, or the other party to this contract. Let it be understood that we are not discussing the question of mutuality in the obligation, for it may be true that if a vendor was named in this paper, the offer to perform on his part would bind the party who did sign. But Grafton did not agree to buy this property of anybody who might be found able and willing to furnish him a title. He was making a contract which required a vendor and a vendee at the time it was made, and he is liable only to that vendor. The name of that vendor, or some designation of him which could be recognized without parol proof extraneous to the instrument, was an essential part of that instrument to its validity.”

In Walker Avenue Realty Co. v. Alaskan Fur Co., supra, Alaskan Fur delivered a written offer to lease a building, signed officially by its president, to the office of the owners of the building. The offer was directed only to “Gentlemen” and did not name any potential lessor or anyone other than Alaskan Fur. The offer was later withdrawn, and Alaskan Fur was sued by the owners for damages for an alleged breach of contract to lease the building. It pleaded the statute of frauds. Plaintiffs relied upon the written offer. Among other holdings, the court said:

“It is equally clear that said proposal is within the statute of frauds, for the reason that it fails to identify the lessors to the proposed lease.”

In Watson v. Brazelton, supra, Watson sued Brazelton for commissions alleged to be due for services rendered as a licensed real estate broker in the sale and exchange of certain real estate between Brazelton and Turner. Defendants pleaded section 22 of Article 6573a, Vernon's Tex.Civ.St., which then provided that “No action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith.” In support of his suit Watson offered the written contract between Brazelton and Turner which contained among other terms a provision reading, “It is further agreed that [Brazelton] [is] to pay the commission of five per cent (5%) on Nine Thousand Dollars ($9000.00) and [Turner] [is] to pay the 5% commission on Five Thousand Dollars ($5000.00).” The agreement did not name Watson or any other person to whom the commissions should be paid. This Court held that because plaintiff was not named in the memorandum he was prohibited by the statute from basing his suit upon it for the commission agreed to be paid in it by Brazelton.

The letter agreements sued upon do not name or otherwise identify the vendor of the mineral interests or the recipient of the sums to be paid by appellees. McKnight is not named in them in any capacity. They simply do not show a contract between McKnight and appellees.

Copies of the letter of transmittal, MeKnight’s invoices to appellees, the stubs of appellees’ checks paying the invoices, and the deposit slips showing McKnight deposited the checks to his bank account, were all part of the summary judgment record. Appellant says these exhibits may be considered with the letter agreements to satisfy the statute of frauds and that when all are considered together they necessarily identify McKnight as the unnamed party in the letter agreements. The exhibits can hardly be classed as “existing, referenced memoranda” required to satisfy the statute of frauds. In any event, when all the writings are considered together, they do not identify McKnight as a party to the letter agreements.

In Osborne v. Moore, 112 Tex. 361, 247 S.W. 498 (1923), Osborne sued Moore for specific performance of a verbal contract by Moore to sell Osborne a house and lot. The contract was evidenced by a check for $100 issued by Osborne payable to Moore which contained the notation, “To bind deal on 1 block and 6-room house on North Oak St., Wm. Osborne. Accepted. Hunter & Graves, by M. D. Hunter, agent.” Moore invoked the statute of frauds. In connection with the check Osborne offered evidence that Hunter was Moore’s agent for the sale of the property, and that Hunter sold the property to Osborne and accepted the check from Osborne as an earnest money deposit to bind the trade. The description of the property was held to be defective, and the question arose as to whether the check identified Moore as owner of the property. The Court said, “The owner of the property referred to in said memorandum is not stated. We are left to infer that it belonged to defendant, Moore, because he is payee in the check. Such inference is not a necessary one, and will not be indulged to support a writing otherwise insufficient.”

Appellant concedes there are no equitable circumstances in the case which would lift the contract from the operation of the statute. None are of record.

Appellant’s contention that the record raises only lack of mutuality of remedies in the agreements sued upon is overruled. The record establishes as a matter of law that the written agreements do not meet the requirements of the statute of frauds because necessary parties to the agreements are not identified.

Appellant’s remaining points and contentions are without merit.

The judgment is affirmed.


author: DUNAGAN, Chief Justice.

text:
    Delbert Lee POWELL, Appellant, v. Jack J. POWELL et al., Appellees.
    No. 1035.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 11, 1977.
    Rehearing Denied Sept. 1, 1977.

      James R. Lewis, Ben E. Jarvis, A. D. Clark, Jr., Tyler, J. Glenn Turner, Jr. and James J. Harnett, of Turner, Hitchins, Mclnerney, Webb & Harnett, Fred M. Bruner, Bruner, Dorfman, Matlock & Hardin, Dallas, for appellant.
    Jack W. Flock, Mike A. Hatched, of Ra-mey, Flock, Hutchins, Grainger & Jeffus, Tyler, for appellees.
   DUNAGAN, Chief Justice.

This is a will contest case. This case involves an application filed by Jack J. Powell and The First National Bank in Dallas for the probate of a written will and first codicil of N. P. Powell, deceased. The application for the probate of the will and codicil is contested by Delbert Lee Powell. N. P. Powell left a written will in which he named Jack J. Powell and The First National Bank in Dallas as co-independent executors of his estate. The will was duly executed by him on the 20th day of July 1972, and was duly witnessed, sworn to and acknowledged by him before a Notary Public. On March 25, 1974 N. P. Powell executed the first codicil to his last will and testament executed on July 20, 1972. N. P. Powell died in Smith County, Texas, on November 5,1974. Appellee Jack J. Powell is a son of the decedent and was a beneficiary under the will. Appellant Delbert Lee Powell is also a son of the decedent and was disinherited in the offered codicil.

Jack J. Powell and The First National Bank of Dallas on November 12,1974, made application to probate the deceased’s will and codicil. The will and codicil were contested by Delbert Lee Powell, the appellant, on the ground of lack of testamentary capacity, revocation, and undue influence.

The case was tried to a jury. Appellant was unable to raise a fact issue on “undue influence” or “revocation” so the case was submitted to the jury on “testamentary capacity” alone. The jury answered those issues favorably to the proponents as to the said will and codicil. On the basis of that verdict, the court entered judgment probating the will and codicil, from which judgment this appeal is taken.

Appellant’s appeal is not prosecuted upon a legal or factual deficiency of the evidence but upon various complaints to the admission or exclusion of evidence.

Appellant has presented 13 points of error for reversal. These points will be discussed in an order different from that followed by the appellant. Some points will be grouped.

Points of error numbers 1, 6 and 11 complain of the granting of appellees-propo-nents’ motion in limine which appellant contends excluded certain admissible evidence.

The motion referred to only requires, as to certain matters of evidence, that appellant refrain from mentioning or otherwise disclosing to the jury the matters mentioned above without first taking the matter up with the court for a ruling thereon.”

As the wording of the motion in limine clearly indicates, granting the motion was not a ruling on the admissibility of evidence. The motion was merely a procedural step to be followed prior to the introduction of evidence, which required that the counsel who was offering evidence to tender said evidence and obtain a ruling thereon outside the presence and hearing of the jury. In Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366, 367 (1962), the court stated: “The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case or on the rights of the parties to the suit. . . . ” In Redding v. Ferguson, 501 S.W.2d 717, 722 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n. r. e.), the court said: “The purpose of a motion in limine is to avoid the injection into the trial, of matters which are irrelevant, inadmissible and prejudicial. . It also serves the useful purpose of raising and pointing out before trial, certain evidentiary rulings that the Court may be called upon to make. By its very nature, when properly drawn, its grant cannot be error. It is not a ruling on evidence. It adds a procedural step prior to the offer of evidence.”

It is a well established rule of law in this state that an order granting a motion in limine, as in the instant case, does not preserve error. Redding v. Ferguson, supra; Alamo Express, Inc. v. Wafer, 333 S.W.2d 651 (Tex.Civ.App.—Fort Worth 1960, n. w. h.); Hudson v. Smith, 391 S.W.2d 441, 449 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.); and Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331, 335 (Tex.1963). Appellant did not properly preserve the alleged errors complained of in his points 1, 6 and 11.

Points 7,12 and 13 violate Rules 320, 322, 874 and 418(c), T.R.C.P., for generality and failure to particularize evidence complained of or refer to the record where it may be found.

Point of error 7 asserts that “The court erred in refusing testimony and evidence concerning his desire to change his will as well as statements that he had in fact changed his will, inasmuch as such statements were admissible to show the state of mind of N. P. Powell.”

From appellant’s argument under this point, we learn that it is directed to testimony proposed to have been elicited from three different witnesses, Lem Hutch-ins, Betty Laird, and Laura Brown, and involved three or more separate statements by the deceased. Appellant attempted to preserve objection to those multiple statements by multiple witnesses in this assignment in the amended motion for new trial, which is altogether too broad. The assignment in the amended motion for new trial is deficient in that it fails to define with any degree of particularity either what witness or what statements it encompasses. With a point this broad, the trial court would be required to scan the entire 1,612 pages of testimony given, to pick out all offered statements by N. P. Powell regarding changes to his will, to guess or speculate which of those statements were covered by the assignment and, then, to assess the trial court’s ruling, if any, after each of those statements. The assignment of error is too broad. It does not point out which witnesses and/or what statements are the subject of the assignment. Such assignment of error is in violation of Rules 320-322, T.R.C.P. As an improper, general assignment, no error may be predicated upon it. Rules 320-322, 374, supra; Casey v. Barkley, 527 S.W.2d 256, 262 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Finto v. Texas & N. O. R. Co., 265 S.W.2d 606, 607-608 (Tex.Civ.App.—San Antonio 1954, n. w. h.).

As we understand appellant’s points of error numbers 12 and 13 his complaint therein is of the admission of evidence regarding Delbert Powell’s wealth, exclusion of evidence of Jack Powell’s wealth, and exclusion of evidence of N. P. Powell’s wealth. In the argument under these points we find no evidence set out which was alleged to have been admitted or excluded nor is there any reference to the record where such evidence may be found. Therefore we do not know what evidence the complaint is directed to. For this court to rule upon and dispose of these two points of error, we would be required to read the entire statement of facts and the five volumes of exhibits to find the matters complained of. Points of error 12 and 13 clearly violate the requirements of Rule 418(c), T.R.C.P. Hidalgo v. Lechuga, 407 S.W.2d 545, 551 (Tex.Civ.App.—El Paso 1966, writ ref’d n. r. e.); Thorpe Insulation Co. v. Rice, 353 S.W.2d 498, 500 (Tex.Civ.App.—Eastland 1962, writ ref’d n. r. e.) and Sims v. Duncan, 195 S.W.2d 156, 161 (Tex.Civ.App.—Galveston 1946, writ ref’d n. r. e.).

The assignments in the amended motion for new trial to which these points relate were as non-specific as the points in the brief. They did not set out, describe, or otherwise explicitly identify the evidence complained of in compliance with Rules 320-322, Texas Rules of Civil Procedure, so as to give the trial court a fair opportunity to assess his rulings. Frobese v. Anderson, 487 S.W.2d 818 (Tex.Civ.App.—Texarkana 1972, mand. overruled); Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407, 409 (1943); Casey v. Barkley, supra.

Moreover the record reflects that appellant introduced without objection and without limitation the Federal Estate Tax Return on N. P. Powell’s estate. That instrument details the deceased’s total estate by list of items and value' of every asset and piece of property owned by N. P. Powell at his death. The record reflects that appellant also introduced without objection or limitation the State of Texas Inheritance Tax Return which reproduces the same information. Additionally, appellee Jack Powell’s wealth is fully disclosed in the record, a portion of which was introduced by appellant himself. Finally, there are references to Delbert Powell’s wealth which was introduced without objection. These points are overruled.

Points of error 2, 3, and 4 involve excluded evidence.

Point 2 complains of the exclusion of testimony by Pearl Hartsfield concerning the deceased’s relationship with one Betty Laird even though the point contains the words “relationships with other women.” This testimony was:

“Q. Did you ever have any conversation with Mr. N. P. Powell about women other than Mrs. Bertha Powell?
“A. Well, he would talk about them, but you kind of just listened and didn’t listen.
“Q. Did he ever mention Betty Laird to you?
“A. Yes he did.
“Q. What did he — when did he mention her?
“A. He mentioned her after Mother’s Day in May. It was sometime in ’74.
“Q. All right. What did he say about her?
“A. Well, he had said he was going to leave there and and leave home and go where she was. I told him he wasn’t thinking straight. He said he was, and so I told him I didn’t think he was.”

The exclusion of that testimony was not error, because:

(1) The bill of exceptions perfected by appellant to preserve Pearl Hartsfield’s testimony is of “combined” type, and, in addition to references to “other women”, it includes other subjects such as inquiries concerning “legitimacy”, statements made by the deceased while looking at his son’s pictures and a statement concerning Delbert Powell and his “blood relationship” to his father N. P. Powell, deceased. These different subject matters make it impossible to correlate the matters preserved in the bill of exceptions with any individual complaint. It violates the rule that a bill of exceptions must be specific enough “. [to] show the nature of the evidence proposed to be introduced, in order to determine its admissibility.” Gulf C. & S. Ry. Co. v. Locker, 78 Tex. 279, 14 S.W. 611, 612-613 (1890). To preserve error in regard to excluded testimony, a separate bill must be perfected as to each exclusionary ruling by the court so as to specifically and clearly define the error complained of. Lubbock National Bank v. Nickels, 63 S.W.2d 764, 768 (Tex.Civ.App.—Amarillo 1933, n. w. h.).

(2) Since the statements attributed to the deceased were hearsay, it could have no relevance except for a limited purpose for which it was never offered. Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298, 301 (Tex.1962); Singleton v. Carmichael, 305 S.W.2d 379, 384 (Tex.Civ.App.—Houston 1957, writ ref’d n. r. e.). A general objection to the offer having been sustained, counsel’s failure to re-offer the statement for limited purpose was a waiver. Gottschald v. Reaves, 457 S.W.2d 307, 309-310 (Tex.Civ.App.—Houston [1st Dist.] 1970, n. w. h.). Where evidence, only a part of which is admissible, is offered as a whole, the court does not commit error in sustaining an objection to such testimony, and it is not the duty of the court nor the party objecting to separate the admissible from the inadmissible. Texas General Indemnity Company v. Ellis, 421 S.W.2d 467, 473 (Tex.Civ.App.—Tyler 1967, n. w. h.).

(3) Even if the statement had been offered for a limited purpose, the court was correct in excluding the proffered evidence, because the statement itself was coupled with a superfluous, inadmissible statement by Pearl Hartsfield that: “. . .1 told him he wasn’t thinking straight. He said he was, and so I told him I didn’t think he was.” Appellant’s failure to segregate that inadmissible evidence from the statement attributed to N. P. Powell was likewise a sufficient ground for refusing the tender. In Texas General Indemnity Co. v. Ellis, supra, this court stated the rule that: “It seems to be the settled law of this state that where evidence is offered as a whole, only a part of which is admissible, the court does not commit error in sustaining an objection to such testimony and in such case it is not the duty of the court nor the party objecting to the same to separate the admissible from the inadmissible, [cases cited] .. . ”

Appellant by his point of error number 3 complains that he was precluded from showing that the testator, N. P. Powell, withdrew large sums of money during the latter part of his life. Appellant proposed to evidence this by the introduction of several checks, taken from the context of several hundred checks written by N. P. Powell during the last year of his life. The checks apparently were offered on the ground that they proved “. . . the state of the decedent’s mind in 1974 . . .”

Evidence offered to prove “state of mind” is receivable, however, only if the evidence is indicative on its face of a relevant state of mind; conversely, if the evidence is merely indicative of conduct which does not reflect a state of mind, it is not so admissible; or, as the court said in Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138 (1914), the evidence must be

“. . . reasonably indicative of what his mental state was at the time . [or] . . . be of such nature as tend to reveal it by being in themselves expressive of his mental state. . . .”

The checks show only that N. P. Powell withdrew his own money. The checks do not show, nor is there any independent evidence to show—pointed out to us—what use was made of the withdrawn funds. The checks thus show nothing more than conduct, i. e., the act of withdrawal, and, showing only that, they do not reflect the state of mind under Scott v. Townsend, supra.

In our opinion the checks themselves show nothing other than conduct which does not reflect any state of mind, much less an “unusual” circumstance which is probative of testamentary capacity. We do not believe the court erred in excluding such proffered evidence.

Point of error number 4 asserts that the court erred in not allowing Betty Laird to relate statements of N. P. Powell concerning how his family felt about him. This point seems to be without substance. The pages which we are referred to by appellant in his brief as to where the alleged excluded evidence may be found does not reflect any testimony as to statements N. P. Powell made as to how his family felt about him. The pages referred to reveal statements by N. P. Powell as to his feeling about Delbert Powell, appellant, and his wife. The only testimony we are referred to that remotely could be considered as a statement as to how his family felt about him is a supposed allusion to his . . happiness at home .” from the answer of Betty Laird:

“Q. Did Mr. N. P. Powell ever talk to you about the Pines Motel?
“A. Yes, uh-huh.
“Q. What did he tell you about it?
“A. He told me he had been going over to the Pines Motel, and that he had been paying them girls $600 just to talk to him. He said it’s because he didn’t have any happiness at home, and he went over there. Then he told me—well he didn’t tell me at first. He told me that at first—but then at the end, he told me that he found out that Jack was going over there.”

Moreover the assignment of error in the amended motion for new trial, to which this point is directed, is not specific enough, i. e., the point, which speaks in terms of evidence concerning how the testator’s family “. . . felt about him .”, does not fairly apprise the trial court in an “explicit manner” of complaint about a statement concerning the testator’s (N. P. Powell) “. . . happiness at home . ” The former does bear a relation to the latter in only the most tangential way, at a point which is so obscure as to be ineffective. Rules 320-322, T.R.C.P.; Collins v. Smith, supra; Finto v. Texas & N. O. R. Co., supra.

In his point of error number 5 appellant contends that the trial court committed error in sustaining appellees’ special exception to his pleading of N. P. Powell’s alleged expression of “. . . his intentions to revoke any testamentary instruments he had previously written . .”

The special exception sustained was directed at what appeared to be appellant’s pleaded intent to offer on the issue of revocation evidence that N. P. Powell made statements expressing an intent to change his will in some unspecified way at some unspecified time in the future.

A present intent to change or revoke a testamentary instrument in the future cannot accomplish revocation of the instrument, nor is it evidence of the revocation. Halamicek v. Halamicek, 542 S.W.2d 246 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.); Citizens First National Bank of Tyler v. Rushing, 433 S.W.2d 741 (Tex.Civ.App.—Tyler 1968, n. w. h.); Covington v. McDonald, 307 S.W.2d 335, 338 (Tex.Civ.App.—Texarkana 1957, n. w. h.) and cases therein cited; Ater v. Moore, 231 S.W. 457 (Tex.Civ.App.—Austin 1921, n. w. h.) and cases therein cited.

Moreover the sustaining of the exception did not affect appellant’s case because the special exception was specifically directed at the evidentiary allegations as to alleged statements of the testator’s future intent. The trial court’s order sustaining the exception did not strike the entire defense of “revocation”, nor did it preclude appellant from offering the evidence alluded to in the pleadings, nor did it prevent revocation from being submitted to the jury if supported by more than a scintilla of evidence.

The only practical effect of the court’s ruling on the exception was to preclude appellant from reading the objectionable pleading to the jury. If the excluding of this portion of appellant’s pleadings was error, which we do not so hold, it would be harmless as it does not show that such denial caused the jury to return an improper ¡verdict. Rule 434, T.R.C.P.; Doneghy v. State, 240 S.W.2d 331, 334 (Tex.Civ.App.—Amarillo 1951, n. w. h.).

Appellant complains in point of error number 8 of the exclusion of the Wysong Clinic hospital records.

Appellant complains in point of error number 9 of the exclusion from the evidence the hospital records of Mother Frances Hospital of certain diagnostic evaluations of electronencephalogram tests run on N. P. Powell.

Appellant’s argument relative to point of error number 8 is very brief. As a matter of fact, it consists of a single paragraph. The argument is not supported by any appellate court authorities. Even though appellant in his point of error number 8 asserts that the trial “court erred in refusing to admit the hospital records of the Wysong Clinic . . . the record reflects that appellee objected only to the first two pages of those records which pages contain certain opinions or diagnosis. Therefore, the trial court in sustaining ap-pellees’ objection excluded only the two objectionable pages of the Wysong Clinic records. Appellant was at liberty to introduce the balance of the record but did not do so. Moreover, the excluded portion of the Wy-song record contained nineteen separate diagnosis which rendered them subject to the rule laid down in Loper v. Andrews, 404 S.W.2d 300 (Tex.1966), which held that even though hospital records may be authenticated under Article 3737e, Y.A.C.S., they are not admissible to the extent that they may contain medical diagnosis or interpretations of data “. . . where they are genuinely disputed and necessarily rest largely in expert opinion, speculation, or conjecture.”

If the Wysong records had been admitted, all they would have shown was that N. P. Powell was hospitalized in 1966,1967 and 1968 at the Wysong Clinic under the diagnosis (among others) of “alcoholism.” It is undisputed that N. P. Powell had difficulty with alcoholism in the 1960’s and that he was hospitalized many times for that condition before “kicking the Habit” some time in 1969. The Wysong records, therefore, establish nothing more than a fact already in evidence, not in dispute, and, in fact, conceded by appellees.

Appellee objected to the admission of that portion of Mother Frances Hospital’s record which is complained of in appellant’s point number 9 on the ground that they contain findings and medical opinions which “. . . rest primarily in expert medical opinion, conjecture and speculation . .” The objection was sustained. See Loper v. Andrews, supra. One of the diagnosis which has been excluded under the test of Loper v. Andrews, supra, is the diagnosis of mental incompetency. Collins v. Collins, 464 S.W.2d 910, 913 (Tex.Civ.App.—San Antonio 1971, writ ref’d n. r. e.). These points are without merit and are overruled.

Appellant in his point of error number 10 contends that “the court erred in sustaining appellee’s objection to a hypothetical question propounded to Dr. Bridges” concerning the amount of drugs taken by N. P. Powell over a certain period of time.

Appellant excepted to the ruling of the trial court and a bill of exception was made which is now before us as part of the record on appeal. The bill of exception does contain certain testimony given by Dr. Bridges but nowhere therein do we find the excluded hypothetical question or that Dr. Bridges’ answer would have been favorable to appellant since it is not shown what the doctor’s answer would have been in response to said question.

Thus the bill of exception upon which this point of error is founded is not sufficient to preserve the point for review, in that it fails to state what the witness would have answered in response to the excluded question. Baker v. Sturgeon, 361 S.W.2d 610, 612 (Tex.Civ.App.—Texarkana 1962, n. w. h.); Hoskins v. Carpenter, 201 S.W.2d 606, 610 (Tex.Civ.App.—El Paso 1947, writ ref’d n. r. e.); Shippers' Compress & Warehouse Co. v. Davidson, 35 Tex.Civ.App. 558, 80 S.W. 1032, 1036 (1904 writ ref’d).

Even though several of appellant’s points have heretofore been disposed of because of procedural defects, we have nevertheless considered each of the points on its merit. In our opinion no reversible error is shown. All of appellant’s points of error are overruled.

Finding no reversible error the judgment of the trial court is affirmed.

      . “. . . If complaint is made of the improper admission or rejection of evidence, the full substance of such evidence so admitted or rejected shall be set out with reference to the pages of the record where the same may be found. . .

      . “Q. Doctor, assuming Mr. N. P. Powell prior to this had actually been issued 205 tablets of Placidyl, and if you assume during that 45-day period that he consumed those tablets, wouldn’t — would he be subject, during that period of time, to being under the influence of Placidyl?”


text:
    DONIE STATE BANK, Appellant, v. Edward C. PARKER, Appellee.
    No. 5748.
    Court of Civil Appeals of Texas, Waco.
    Aug. 11, 1977.
    Rehearing Denied Sept. 1, 1977.
    W. A. Keils, Jr., Teague, for appellant.
    Bernard C. Reeves, Fairfield, for appel-lee.
   HALL, Justice.

This is a trespass to try title action brought by Donie State Bank against Edward C. Parker for title and possession of a tract of land in Freestone County. After a trial without a jury, judgment was rendered that plaintiff take nothing. Plaintiff seeks reversal, contending that under the record it was entitled to judgment as a matter of law. We overrule this contention and affirm the judgment.

There is no dispute in the material facts in the case. Most of those facts are contained in findings of fact made in writing and filed by the court along with conclusions of law. The findings and conclusions read as follows:

Findings of Fact
I.
“That the Warranty Deed from Edward C. Parker to Alton Parker, Jr., dated March 20, 1974, filed for record on March 26, 1974 and recorded in Vol. 433, Page 120 of the Deed Records of Freestone County, Texas, described a lot, tract or parcel of land, located on U. S. Highway No. 84 in the I. H. Reed League, Abstract 23, situated in Freestone County, Texas, which is the same land described in Plaintiff’s Petition; that said deed reserved a Vendor’s Lien to secure the payment of one promissory note in the principal sum of $8,500.00, dated March 20, 1974, executed by Alton Parker, Jr., payable to Edward C. Parker in five annual installments of $1,700.00 each, the first installment being due and payable on or before March 20, 1975.
II.
“That a Deed of Trust from Alton Parker, Jr. to Hugh D. Reed, Jr. Trustee, dated March 20,1974 was given to secure the payment of said promissory note dated March 20,1974 in the principal sum of $8,500.00, payable to Edward C. Parker in five annual installments of $1,700.00 each, the first installment being due and payable on or before March 20, 1975; which instrument and the execution thereof was recited in said promissory note, this Deed of Trust and the Warranty Deed were both acknowledged before Hugh D. Reed, Jr., a notary public in and for Freestone County on March 25, 1974; the Deed of Trust was filed for record on May 12, 1975 and is recorded in Vol. 52, Page 109 of the Deed of Trust Records of Freestone County, Texas.
III.
“That Alton Parker, Jr. executed and delivered a Vendor’s Lien note in the principal sum of $8,500.00, payable as set out above, to Edward C. Parker; that default of the first annual installment due on or before March 20, 1975 was made and that after due demand, notice, the Vendor’s Lien was foreclosed and the property sold by Bernard C. Reeves, Substitute Trustee, to Edward C. Parker under the provisions of said Deed of Trust, said instrument being dated June 3, 1975, filed for record on June 6, 1975 and recorded in Vol. 448, Page 830 of the Deed Records of Freestone County, Texas.
IV.
“That Donie State Bank obtained a judgment against Alton Parker, Jr. in Cause No. 7470-B on May 2, 1975 in the amount of $3,931.28 and an Abstract of this Judgment was filed on May 2, 1975 and is recorded in Vol. 8, Page 311 of the Abstract of Judgment Records of Freestone County, Texas; also, an Abstract of this Judgment was filed on June 27,1975 and is recorded in Vol. 8, Page 317 of said Records.
V.
“That a Sheriff’s Deed from Alton Parker, Jr., by J. R. Sessions, Jr. Sheriff to Donie State Bank, dated October 7, 1975, was filed for record on October 12, 1975 and recorded in Vol. 458, Page 112 of the Deed Records of Freestone County, Texas, which instrument recites that it conveys to the Donie State Bank all the estate, right, title and interest which the said Alton Parker, Jr. had on the 2nd day of May, 1975, or at any time afterwards, in the land described in Plaintiff’s Petition.
VI.
“That Alton Parker, Jr. defaulted in the payment of the first installment due on the Vendor’s Lien note; and that neither Alton Parker, Jr. nor Donie State Bank has made any payment on the Vendor’s Lien Note before the institution of this suit.”
Conclusions of Law
I.
“That the reservation of a Vendor’s Lien in the Warranty Deed from Edward C. Parker to Alton Parker, Jr. to secure the payment of the Vendor’s Lien Note, fully described therein, constituted notice of the Vendor’s superior title in Edward • C. Parker, until the said note had been paid.
II.
“That the Deed of Trust, dated March 20, 1974, executed by Alton Parker, Jr. to Hugh D. Reed, Jr. Trustee to secure the payment of said Vendor’s Lien note constituted a valid Deed of Trust Lien to secure the payment of said note, which note recited the giving of the Deed of Trust to secure the same.
III.
“That the Substitute Trustee Deed to Edward C. Parker on June 3,1975, vested legal title as well as the equitable title in Edward C. Parker.
IV.
“That the Sheriff’s Deed to Donie State Bank conveyed no interest in the land described in Plaintiff’s Original Petition, because Alton Parker, Jr. had no title to said land until the Vendor’s Lien Note was paid off.
V.
“That Plaintiff Donie State Bank has failed to prove that it has superior title under a common source to recover possession and title to the property involved in this suit.”

As shown in the court’s findings, the warranty deed from defendant to Alton Parker, Jr., reserving a vendor’s lien, and the deed of trust given by the vendee to secure the vendor’s lien, and the purchase-money note executed by the vendee upon which the vendor’s lien was based, were all executed on March 20,1974. These instruments are a part of the statement of facts brought forward in the case. The warranty deed does not refer to the deed of trust, but it does refer to the purchase-money note. The deed of trust does not refer to the warranty deed or the vendor’s lien, but it does set forth the purchase-money note and recites a lien given to secure payment of the note, although it does not expressly identify the note as one for purchase money. The note refers to the warranty deed, the vendor’s lien retained to secure payment of the note, and the deed of trust executed to also secure payment of the note.

The court’s determinations expressly show that “the Vendor’s Lien was foreclosed and the property [was] sold to [defendant] . . . under the provisions of the deed of trust ...” Specifically, plaintiff contends that the record affirmatively establishes that the vendor’s lien was not foreclosed, arguing that because the deed of trust does not recite that it was executed to secure the vendor’s lien, but recites only that it was given to secure payment of a “naked note,” defendant did not by the deed of trust foreclose his vendor’s lien, but foreclosed only a “contractual deed of trust lien” which was filed of record on May 12, 1975 (finding number III) after plaintiff’s judgment lien was filed of record on May 2,1975 (finding number IV). Then, asserting its lien was superior to defendant’s “contractual deed of trust lien” by reason of the prior recordation, plaintiff claims superior title as a matter of law under the sheriff’s deed based on the judicial order of sale over the title acquired by defendant under the deed of trust sale. We overrule these contentions.

Inferentially, the warranty deed, the purchase-money note, and the deed of trust show that they were executed contemporaneously and for the same purpose and in the course of a single transaction. Additionally, defendant testified that they were. Instruments so executed are to be considered as though they are in fact a single instrument. Pacific Mutual Life Ins. Co. v. Westglen Park, Inc., 160 Tex. 1, 325 S.W.2d 113, 116 (1959); Board of Ins. Com’rs v. Great Southern Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803, 809 (1951). So considered, the instruments before us plainly show that the deed of trust was intended to secure payment of defendant’s vendor’s lien expressed in the warranty deed. This vendor’s lien was outstanding and of record when plaintiff took its judgment against the vendee and when it perfected its lien, and was superior to the judgment lien. 58 Tex.Jur.2d 484, Vendor and Purchaser, § 261.

The vendee defaulted on the first payment on the vendor’s lien note (finding number III), and plaintiff made no payment on it (finding number VI). When the vendee defaulted, defendant had two available remedies: He could judicially foreclose on the vendor’s lien note, or he could foreclose the purchase-money lien by private sale under the deed of trust. 39 Tex.Jur.2d (Rev.1976) 159, Mortgages and Trusts Deeds § 126. He chose the latter remedy.

When plaintiff bought at the sheriff’s sale it obtained only the title possessed by the vendee. 34 Tex.Jur.2d 696, Judgments, § 582. Under the record, the vendee owned no interest in the property at that time.

The judgment is affirmed.