text:
    DORFMAN DEVELOPMENT COMPANY, Appellant, v. AMERICAN COMMONWEALTH DEVELOPMENT COMPANY, Appellee.
    No. 16477.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 24, 1975.

      Lyne, Klein, French & Womble, Erich F. Klein, Jr., Dallas, for appellant.
    Talbert, Giessel & Stone, Steven P. Mock, Alice M. Giessel, Houston, for ap-pellee.
   EVANS, Justice.

This is a venue case.

The Citadel, an apartment and office building project in Harris County, Texas, was developed pursuant to a limited partnership agreement originally made between appellant, Dorfman Development Company, the general partner, and Transport Management Company and Buddy Hackett, the limited partners. By amendment to the agreement, appellee, American Commonwealth Development Company, succeeded to and assumed the obligations of Transport Management Company, as a limited partner.

In 1973 and 1974, appellant, the general partner, made two loans to The Citadel, the first being in the amount of $3,794,400.00 and the second being in the amount of $300,000.00j both of which were evidenced by the Citadel’s notes to appellant and secured by deeds of trust to Lee D. Schlanger, Trustee. Contemporaneously with these transactions, defendant, Property Trust of America, loaned to appellant the same amounts which had been loaned to the Citadel, and these loans were evidenced by appellant’s promissory notes and secured by security agreements and collateral assignments covering The Citadel’s notes to appellant. Appellee contends that these loans were made in such manner and without the consent of the limited partner as to constitute violations of the limited partnership agreement and that the deeds of trust securing the loans were invalid.

This appeal is from the trial court’s order overruling appellant’s plea of privilege seeking transfer of venue to Dallas County, the county of its residence. Appellee, in its controverting affidavit and upon this appeal, asserts that venue is maintainable in Harris County under the mandatory provisions of Subdivision 14 of Article 1995, Vernon’s Tex.Rev.Civ.Stat.Ann. and also under Subdivisions 5, 23 and 4 of that statute. In seven points of error appellant asserts that appellee failed to meet its burden of proof under those subdivisions.

In determining whether Subdivision 14 applies, we must ascertain from the face of appellee’s amended petition and its controverting affidavit the principal right asserted and the relief sought. 1 McDonald, Texas Civil Practice, 4.22.2, p. 488.

Appellee’s amended petition alleges that appellant, the general partner, breached its duties and obligations under the limited partnership agreement and that a bona fide dispute existed as to the legal interpretation of the controlling documents and as to whether appellant’s conduct violated the terms of the agreement. Appellee alleged, among other things, that appellant did not have the authority to enter into the loan transactions without appellee’s consent, which consent and authority it alleged was not given by it, and that both Property Trust of America and Lee D. Schlanger, Trustee, had knowledge prior to such loans that the consent of appellee was required under the terms of the agreement and that appellee had not given its consent. Appel-lee sought declaratory relief as to the rights of the parties under the agreement and a judicial determination that the deeds of trust did not constitute valid liens on the property.

Appellant contends that the appellee’s petition failed to allege that appellant was asserting any lien on the property and that the only liens involved are those asserted by the defendant, Property Trust of America, in connection with its two loans. As the general partner in The Citadel venture and the designated beneficiary in the deeds of trust, appellant was integrally involved in the loan transaction and its rights would definitely have been affected by any judgment declaring that transaction to be invalid. McDonald, Texas Civil Practice, Vol. 1, Section 3.24, p. 305.

Appellant further contends that the allegations of appellee’s petition are directed toward the ultimate dissolution of the partnership and that venue should be determined upon the basis of the defendant’s residence rather than by the location of the partnership property. In support of this contention appellant cites Kirschenbaum v. Smith, 480 S.W.2d 500 (Tex.Civ.App.—El Paso 1972, no writ), and Miller v. Howell, 234 S.W.2d 925 (Tex.Civ.App.— Fort Worth 1950, no writ). In both of these cases, the plaintiff was not seeking to have a lien against the partnership property declared void but was seeking dissolution of the partnership and incidental relief as to an accounting and for possession of the partnership assets.

In the case before us the essential relief sought by the appellee required an adjudication that the liens asserted by a third party with respect to the partnership property were invalid. Appellee’s underlying theory, as evidenced by the allegation of its petition, was that the deeds of trust securing the loan were invalid because the loan transaction had been made by the general partner in violation of the terms of the partnership agreement and that both the lender and the trustee under the deeds of trust had knowledge of such facts. The primary object of the suit, as evidenced by appellee’s petition, was the removal of an encumbrance from the property and the determination of the parties’ rights under the partnership agreement was merely incidental to that purpose. Evans v. Speed, 339 S.W.2d 257 (Tex.Civ.App.—Fort Worth 1960, error dism’d).

A suit to cancel a deed of trust lien is an action involving land within the meaning of Subdiv. 14, fixing venue in the county where the land is situated. Pringle v. Southern Bankers Life Ins., 296 S.W.2d 347 (Tex.Civ.App.—Austin 1956, no writ); 1 McDonald, Texas Civil Practice, Sec. 4.-22.5, p. 495. Where the primary purpose of the suit is to remove an encumbrance from the title to land, the fact that additional relief is sought does not preclude the mandatory application of Subdiv. 14 fixing venue in the county where the land is situated. Best Investment Company v. Parkhill, 429 S.W.2d 531 (Tex.Civ.App.—Corpus Christi 1968, no writ); Joy v. Joy, 254 S.W. 2d 810 (Tex.Civ.App.—Fort Worth 1953, no writ). We hold that the trial court properly determined venue to be in Harris County, Texas under Subdiv. 14 of Art. 1995, Tex.Rev.Civ.Stat.Ann. In view of this holding we find it unnecessary to determine whether venue in Harris County is also proper under Subdivisions 5, 23, or 4 of that statute.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    William L. POWERS, Jr., Appellant, v. Martin LYNN et al., Appellees.
    No. 964.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 22, 1975.
    Rehearing Denied June 2, 1975.
    Bruce D. Viles, Wood, Burney, Nesbitt & Ryan, Corpus Christi, for appellant.
    Richard A. Hall, Branscomb, Gary, Thomasson & Hall, Corpus Christi, for ap-pellees.
   OPINION

YOUNG, Justice.

Because the trial court refused to temporarily enjoin any of the defendants from initiating any proceedings for the collection of indebtedness resulting from the plaintiff’s purchase of the Sand and Sea Resort Hotel of Corpus Christi, Texas, the plaintiff appeals.

On or about June 28, 1974, William L. Powers, Jr., as purchaser, executed a real estate sales contract with Martin Lynn and Bonnie Hayes for the purchase of the Sand and Sea Resort Hotel for a price of $950,000 to be payable partly by cash and the remainder by a note to be secured by a vendor’s lien and a deed of trust.

The purchase was closed through Stewart Title Company on August 30, 1974. There Powers executed a secured promissory note for $674,500.00, payable to Lynn and Hayes, together with attendant conventional documents and paid the balance of the purchase price with funds secured primarily from the Small Business Administration.

The note required Powers to make interest payments, only, on the first day of October, November and December of 1974. On January 1, 1975, Powers was scheduled to pay Lynn and Hayes an installment of $24,500.00 plus the first regular monthly payment of $5,558.40; he was obligated to pay a monthly installment of $5,558.40 on the first of each month thereafter until the note became paid in full.

On December 31, 1974, the day before the scheduled payments of $24,500.00 and $5,558.40 were due, Powers filed suit against Lynn, Hayes, Stewart Title Company, and James H. Atwill as trustee of the deed of trust. In that petition he alleged, among other things, that because of fraudulent misrepresentations by Lynn about the ease of Powers’ acquiring membership with Best Western Motels, Powers was entitled to recission of the sale or, alternatively, to recover damages. On that sam'e day Powers sought and was granted a temporary restraining order enjoining the defendants from accelerating the indebtedness provided in the note, from negotiating or otherwise transferring the note, and from foreclosing on the real property securing the note. Plaintiff did not make the payments due on January 1, 1975, and had not done so at the time of the subsequent evidentiary hearing.

In his petition Powers alleged as a basis for the suit and the requested ancillary in-junctive relief: that before closing of the sale in question the Sand and Sea Resort Hotel was affiliated with Best Western Motels, a chain of member motels with home offices in Phoenix, Arizona; that during negotiating before the execution of the real estate sales contract, Lynn knowingly and wilfully represented to Powers that the Sand and Sea was in a condition which was acceptable to the Best Western chain for a continuation of membership; that the affiliation between the motel and the chain was in good standing; and, that, although the membership itself was non-transferrable, Powers would only have to effect the formality of filing an application and receiving approval to continue operating the motel as a member of the chain. Further, Powers alleged that he relied on those representations; that they were untrue ; that he was not granted a Best Western affiliation; and that as a consequence he was entitled to either recission or damages in excess of $100,000.00.

The hearing on Powers’ request for a temporary injunction pending the trial of this case on the merits was begun on January 10, 1975, and culminated in an order dated January 16, 1975, denying the requested injunctive relief. Plaintiff appeals from this order.

Appellant contends in five points of error that he presented a prima facie case; that the subject matter of the litigation should be preserved; that a multiplicity of suits should be prevented; that there was a substantial, bona fide, litigious controversy between the parties; and that, therefore, the temporary injunction should have been issued.

Appellees assert that the trial court properly denied the injunctive relief sought by appellant because he failed to demonstrate the existence of a probable right subject to protection by injunctive relief.

The evidence offered by the appellant in support of his request for injunctive relief may be fairly summarized as follows. Powers has been a licensed real estate broker since 1965 and is affiliated with W. L. Bates Company, a real estate brokerage firm in Corpus Christi and Dallas. He also has a law degree, but is not licensed to practice. Before buying the Sand and Sea he had owned a motel in Port Aransas which suffered considerable loss from Hurricane Celia in 1970. As a result, Powers acquired a Small Business Administration loan which he had yet to use in 1974 when he became interested in buying the Sand and Sea. Besides its appearance and location, the hotel interested him because of its affiliation with the Best Western chain. To him the Best Western referral system, national advertising, and travel guide added the extra business necessary to make a motel successful. Thereafter, he asked the Bates Company, which had an exclusive listing on the hotel, to gather information on the property. He stayed at the hotel sometime in April, then in May, and nearly all of June and part of July. During this time he negotiated regarding the proposed purchase. Primarily involved in the negotiations were Dan Bates of the Bates Company, Lynn, Lynn’s attorney (James H. Atwill), and Powers.

According to Powers, when he visited in April, Lynn made the representations now complained of and repeated them several times before the real estate sales contract was signed. On August 30, the purchase was closed through Stewart Title.

Thereafter, in early September, Powers sent in his check and application for membership in Best Western. Later in September a Best Western representative inspected the hotel and made a list of deficiencies, a copy of which he left with Powers. Subsequently, in due course of mail, Powers received a letter dated October 24, 1974, from Best Western denying his membership request. They invited him to apply again after he had completed correction of the deficiencies.

To the contrary, Lynn testified that the hotel had been affiliated with Best West-era for 13 years before the sale. In negotiating for the sale of the hotel he did not deal with Powers; he dealt with Dan Bates, a realtor (whose commission Powers contracted to pay). He did not speak to or meet Powers before the signing of the real estate sales contract on June 28, 1974. In fact, he never met Powers until the latter part of July or the early part of August, long after the sales contract was signed. He did explain to Bates, however, that the Best Western membership was not transferrable and that Powers would have to get his own affiliation. Neither did Bates make inquiry of Lynn on behalf of Powers about the requirements for transfer of the membership; nor did Powers ever ask Lynn to obtain any information from Best Western; nor did he ask of Lynn what was required to continue the membership. Powers and Lynn never discussed the advantages of a Best Western membership. And certainly there was no discussion of the membership at the closing of the sale on August 30.

At this point we note that the real estate sales contract provided on paragraph XV:

“This contract constitutes the sole and only agreement of the parties hereto and supercedes any prior undertakings or written or oral agreements between the parties respecting the within subject matter, and this contract is entered into after full investigation, neither party relying upon any statement or representation, not embodied in this contract, made by the other.”

The first rule governing our review of this case is set out in Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 462 (1952). There the Supreme Court said that a trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties preceding a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion. Further, we are required to review the evidence, and to draw legitimate inferences from the facts in evidence, in the light most favorable to the trial court’s judgment. Erickson v. Rocco, 433 S.W.2d 746, 750 (Tex.Civ.App.—Houston (14th Dist.) 1968, writ ref’d n.r.e.). And where the evidence is in conflict, an abuse of discretion by the trial court is not shown either in granting or refusing a temporary injunction. Carroll v. Lee, 451 S.W.2d 766, 777 (Tex.Civ.App.—Texarkana 1970, writ ref’d n.r.e.); Scanlan v. City of Houston, 137 S.W.2d 204, 205 (Tex.Civ.App.—Galveston 1940, writ dism’d jdgmt cor.); King v. Plainview Nat. Farm Loan Ass’n, 86 S.W.2d 833, 834 (Tex.Civ.App.—Amarillo 1935, no writ). See 31 Tex.Jur.2d Injunctions § 224 (1962); 6 Tex. Practice, Injunctions § 263 (2d Ed.1973).

Because the appellant has cast his appeal solely on whether Lynn made representations relating to the membership in the motel chain, we will review the trial court’s action from that viewpoint.

What exists is a clear conflict of evidence. Powers said Lynn made the representations about Great Western; Lynn denied making them. So the trial court did not abuse its discretion in accepting Lynn’s testimony over Powers’. Carroll v. Lee, supra; Scanlan v. City of Houston, supra; King v. Plainview Nat. Farm Loan Ass’n, supra. The trial court could have inferred that one who is a real estate broker, a holder of a law degree, and a signer of a real estate sales contract that stated neither party was relying on any representation not in the contract, was not likely to have relied on any misrepresentations he claimed wére made.

We have considered all of appellant’s points of error and they are overruled because he has failed to show a clear abuse of the trial court’s discretion.

The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    The CITY OF LONGVIEW, Texas, Appellant, v. Jack C. BOUCHER, Appellee.
    No. 817.
    Court of Civil Appeals of Texas, Tyler.
    May 8, 1975.
    Rehearing Denied May 29, 1975.

      Smead, Roberts, Harbour, Smith, Harris & French, Earl Roberts, Jr., Longview, for-appellant.
    Sharp, Ward & Ross, Earl Sharp, Long-view, for appellee.
   MOORE, Justice.

This is an eminent domain proceeding. The appellant, City of Longview, Texas, instituted the proceeding to condemn for public park purposes 3.251 acres of land owned by appellee, Jack C. Boucher. Trial was before the court and jury. Prior to trial, the parties stipulated that all preliminary steps necessary to condemn had been taken and that the only question to be decided by the jury was the market value of the property condemned. In response to the single special issue submitted, the jury found the market value of the 3.251 acres to be $20,000 and judgment was rendered for appellee in that amount. After its motion for new trial had been overruled, appellant, City of Longview, perfected this appeal.

Appellant presents ten points of error many of which involve the testimony concerning market value presented to the trial court. Before discussing the points we will undertake a brief statement of the testimony.

We affirm.

The 3.251 acres in question is situated in the middle of a built residential area. The land is zoned for single family residences only. The land is situated in close proximity to duplex or multi family zoning across the street and commercial property zoning is approximately 150 yards away. According to the testimony of the City’s two expert witnesses, Jerry Ruff and Robert Coffey, the highest and best use of the property was for the construction of single family residences. They testified that the land had a market value of $8,000.00 and $9,600.00 respectively. According to appel-lee’s expert witnesses, the highest and best use of the land was for residential use or for an apartment site. Appellee’s witness Franklin Martin testified that the cash-market value for residential use based upon a comparable sale of other property in the area was $27,864.00. He further testified that in his opinion the land could be divided and sold as residential lots in which event it would have a market value of $21,000.00 to $22,500.00. Appellee’s witness, B. R. Comer, testified that dividing the property into residential lots would have a market value of between $22,500.00 and $23,000.00. The witness Martin testified that if devoted to the use as an apartment site, the property would have a market value of $45,000.00, while the witness Comer testified that if devoted to such use it would have a value of $29,259.00. Ap-pellee, Jack Boucher and his brother, Buddy Boucher, testified that they were of the opinion that the cash-market value of the tract was $45,000.00.

In its first point, the City maintains that the trial court erred in refusing to exclude the testimony of appellee’s expert witness Martin wherein he testified that based upon a comparable sale of other property in the area, the land in question had a market value of $27,864.00. The City contends that since the undisputed evidence shows that the comparable sale from Black to Berlin relied on by the witness involved improved land with a house situated thereon, the sale was not comparable, and should not have been admitted to show the market value of the unimproved 3.251-acre tract involved here. We agree.

On direct examination, Martin testified that the Berlin sale was comparable; that the Berlin sale was transacted on May 28, 1970; and that the property involved in the Berlin sale was located just across the street from the Boucher property. Further, the witness was allowed to testify in detail as to how he made adjustments to determine the value of the lot involved in the Berlin sale, excluding the value of the house, so that the adjusted value of the Berlin lot could be compared with the unimproved 3.251-acre tract involved here. Appellant made a motion in limine which was overruled to exclude testimony concerning the Berlin sale on the ground that it was not comparable. Appellant also objected on the trial to testimony with regard to the Berlin sale, which objection was likewise overruled.

Evidence of the sale of a lot with a house upon it is inadmissible to show be-, fore value of condemned unimproved land. State v. Chavers, 454 S.W.2d 395, 397 (Tex.1970); City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 816 (1954). The issue being resolved by the trial court was the market value of unimproved land. The Black-Berlin sale involved a sale of a house and land. The sale was inadmissible on direct examination because, even with full factual information as to the characteristics of the two tracts for purposes of comparison, it gave the jury no assistance in determining the value of the unimproved land in question. By deducting the expert’s opinion of the value of the house, a figure can be produced to represent the price paid for the land. However, as pointed out in Chavers, this takes the inquiry away from the issue to be determined and raises an entirely collateral issue. If the parties in condemnation cases are to be faced with such sales and collateral questions, their burden of preparation for trial is considerably heavier. The benefit of its use does not justify the burden for adversary or jury. An expert may well take that type of transaction into consideration as part of his total view and the mental process which culminates in a personal opinion of the market value of the condemned land, but he is not permitted on direct examination to testify as to the facts of that sale. State v. Chavers, supra, 397.

While we are of the opinion that the court erred in admitting testimony, it does not necessarily follow that such error calls for a reversal. In order to determine whether the error was harmful, we must examine the entire record to determine whether it can be said that it was “reasonably calculated to cause and probably did cause the rendition of an improper judgment.” Gomez Leon v. State, 426 S.W.2d 562, 565 (Tex.Sup.1968). While the witness Martin testified that his valuation of $27,864.00 was based upon his comparison of the condemned property with the improved property involved in the Berlin sale, he also testified that he arrived at a different value by the use of another method of valuation. He testified that if the acreage were divided into residential lots it would have a value of between $21,000.00 and $22,500.00. Thus, even though his testimony as to value based on a comparable sale was not admissible, we deem his testimony in this respect competent to support the jury’s verdict. In addition to this, the witness Comer testified that if the property was divided into residential lots, it would have a market value of between $22,500.00 and $23,000.00. No objection was leveled at the valuation made by either Martin or Comer based on this method of valuation, and appellant does not contend that the testimony in this regard was not competent. The $20,000.00 value as found by the jury was within the range of this testimony. Apparently the jury was not impressed with Martin’s valuation of $27,864.00 based on a comparable sale. Under the circumstances we do not believe the erroneous admission of Martin’s testimony as to the alleged comparable sale caused the rendition of an improper judgment. Rule 494, Texas Rules of Civil Procedure.

Appellant contends by its second point that the trial court erred in overruling its objection to the testimony of appellee’s witness Martin with regard to sale price of the Espanita apartment site in 1966, on the ground that such a sale was not a comparable sale in that it occurred eight years prior to the date of the taking and was too remote.

It was stipulated that the taking of ap-pellee’s property occurred on January 14, 1974. Appellee’s witness Martin testified that one of the highest and best uses of the land in question was for the construction of apartments and that in arriving at the value of the land for that purpose, he used a comparable sale known as the sale of the Espanita apartment site which sold for $22,500.00 in 1966. The City timely objected to this testimony on the ground that the sale was too remote in time to be comparable. The objection was overruled.

We find no cases and have been cited none, which approve evidence of sales made eight years prior to date of taking. We think the evidence of the 1966 sale was too remote and should have been excluded. State v. Curtis, 361 S.W.2d 448 (Tex.Civ.App., San Antonio, 1962, writ ref’d., n. r. e.); State v. Dickerson, 370 S.W.2d 742 (Tex.Civ.App., Houston, 1963, n. w. h.) ; Reynolds v. State, 390 S.W.2d 493 (Tex.Civ.App., Texarkana, 1965, n. w. h.). Appellee argues in support of the trial court’s ruling that the evidence was admissible because of the further testimony showing that land values in the area had increased 25% since 1966. Such argument ignores the fact that the prior sale must in fact be comparable. If the sale is too remote in time, it must be excluded for that reason.

This brings us to the question of whether the error was so harmful as to require a reversal. In determining this question we must look to the record as a whole. While the witness Martin was permitted to testify that if the land was used as an apartment site it would have a market value of $45,000.00, the jury obviously did not determine the value on that basis. The jury finding is well within the competent testimony of all the witnesses as to the market value of the land as used for residential purposes which ranged from $8,000.00 to $23,000.00. The jury’s finding is so close to the $21,000.00 estimate made by the appellee’s witness Martin as to compel the belief that his testimony was probably the basis of the jury’s verdict. After a careful review of the entire record, we are not convinced that the error was calculated to cause and probably did cause the rendition of an improper judgment. Rule 494, supra.

In points three through six, the City complains of the action of the trial court in refusing to exclude certain drawings depicting apartments on the land in question, as well as the testimony of Buddy Boucher regarding the feasibility of constructing apartments on the land. Appellant timely objected to such evidence on the ground that it was speculative, since the land was unavailable for the construction of an apartment complex because it was zoned for single family residences. Appellant further complains of the action of the trial court in permitting the witness B. R. Comer to testify over its objection, as to a survey he made in the neighborhood showing that the people in the area had no objection to the construction of an apartment complex. We have concluded that these points fail to reflect reversible error.

Even though it be assumed, arguen-do, that the court erred in refusing to exclude the evidence depicting the land as being devoted to use as an apartment site, we think the jury’s finding compels the conclusion that the jury did not arrive at the market value on that basis. While appel-lee’s witnesses Martin and Buddy Boucher testified that if the land was devoted to use as an apartment site it would have a market value of $45,000.00, and the witness Comer testified it would have a value of $29,259.00, the jury obviously placed no credence in that testimony. Under the evidence, the jury had a clear-cut option to value the land as either residential or as an apartment site. If the jury had placed any credence in this questioned testimony, they would have no doubt valued the land at some value between $29,259.00 and $45,000.00. Since the jury’s verdict was nowhere near these figures, it would seem to follow that the jury ignored the possibility that the land could be devoted to use as an apartment site. Consequently we think the error, if any, in admitting this testimony was harmless. Rule 494, supra; Texas Power & Light Company v. Adams, 404 S.W.2d 930 (Tex.Civ.App., Tyler, 1966, no writ); State v. Hamman, 377 S.W.2d 727 (Tex.Civ.App., Houston, 1964, no writ) ; State v. Powell, 376 S.W.2d 929 (Tex.Civ.App., Dallas, 1964, no writ).

In points seven and eight, the City complains of the actions of the trial court in refusing to limit the scope of cross examination of its witness, Jerry Ruff. The City contends that the appellee should not have been allowed to develop on cross examination certain appraisals made by Ruff for the City on other unrelated and dissimilar property and that the City should not have been permitted to develop the fact that the City had rezoned property owned by Ruff. The City objected on the ground that such testimony was irrelevant, immaterial and highly prejudicial.

On cross examination, appellee’s attorney adduced testimony from Ruff showing that in other appraisals made for the City of Longview, Ruff had made a lower appraisal than the City later voluntarily paid for the property. Testimony was also elicited on cross examination showing that subsequent to the time Ruff made such appraisals, he had appeared before the Longview City Commission and requested and received a zoning change on property he owned within the city.

As a general rule a party has a right to cross examine an adverse witness in order to show interest, bias or prejudice to affect his credibility and a wide latitude is allowed in such matters. Traders & General Ins. Co. v. Robinson, 222 S.W.2d 266 (Tex.Civ.App., Texarkana, 1949, writ ref.); Barrios v. Davis, 415 S.W.2d 714 (Tex.Civ.App., Houston, 1967, no writ). The jury is entitled to know any fact which would tend to influence the testimony given by a witness. As we view the record, such testimony was admissible to show Ruff’s relationship with the City and to allow the jury to make its own determination of whether the witness was interested or biased in favor of the City by reason of his past relationship with the City in other matters. Appellant’s complaint that the testimony was unduly prejudicial is overruled.

In its ninth point, appellant maintains that the trial court erred in rendering a judgment based upon the jury’s findings to Special Issue No. 1 because there was no evidence to support the answer. After considering only the evidence and inferences tending to support the findings and disregarding all evidence and inferences to the contrary, we believe that there is ample evidence of probative force to support the jury’s answer to Special Issue No. 1. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.Sup.1965). Appellant’s ninth point is overruled.

In its tenth point, appellant maintains that the trial court erred in rendering judgment because there was insufficient evidence to support the jury’s answer to Special Issue No. 1. After considering all of the evidence, both that which is in support of and that which is contradictory to the jury’s finding, we do not believe that the evidence is factually insufficient to support the jury’s answer to Special Issue No. 1. See Calvert, "No Evidence and Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 366 (1960). Appellant’s tenth point is overruled.

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


author: AKIN, Justice. CLAUDE WILLIAMS, Chief Justice GUITTARD, Justice

text:
    James T. BOHART et ux., Appellants, v. UNIVERSAL METALS AND MACHINERY, INC., Appellee.
    No. 18489.
    Court of Civil Appeals of Texas, Dallas.
    March 27, 1975.
    Rehearing Denied April 24, 1975.

      Tom James, Blanchette, Shelton & James, Dallas, for appellants.
    John H. McElhaney, Turner, Rodgers, Sailers, Jordon & Calloway, Dallas, for ap-pellee.
   AKIN, Justice.

Universal Metals and Machinery, Inc., brought suit against James T. Bohart and his wife for payment of their guaranty on a promissory note. Defendants answered asserting the note in question was a forgery, that there was a failure of consideration for the promissory note and guaranty, and that defendants were induced to sign the guaranty through fraudulent misrepresentations of plaintiff. Defendants also filed a cross action against plaintiffs seeking recovery for alleged usurious interest on the note. Prior to the time of trial, defendants filed a plea in abatement based upon Tex.Bus. & Comm.Code Ann. § 34.02 (V.T.C.A.1968), demanding that plaintiff bring action against the alleged maker of the note in the Republic of Mexico. The trial court overruled the plea in abatement. After a trial to a jury, the trial court entered a judgment in plaintiff’s favor, and denied defendants all recovery on the cross-action.

The alleged maker of the note in question was Beneficiadora de Minerales de Tlaxcala, S. A. (hereinafter BMT), a foreign Corporation. The promissory note, in the amount of $225,000, was dated November 1, 1971, and was allegedly in payment for used machinery previously delivered by the plaintiff to BMT in the Republic of Mexico. The note was followed by a guaranty agreement, to-wit:

For value received, the undersigned-, as primary obli-gor(s), hereby (jointly and severally) unconditionally guarantee(s) the prompt payment of principal and interest on the foregoing promissory note when and as due in accordance with its terms, and hereby waive(s) diligence, presentment, demand, protest, or notice of any kind whatsoever, as well as any requirement that the holder exhaust any right or take any action against the maker of the foregoing promissory note and hereby consent(s) to any extension of time or renewal thereof.
(Name of Guarantor)
(Name of Guarantor)

Both defendants signed this guaranty.

The jury found that the note in question was a forgery; that plaintiff had no knowledge of this fact when it accepted the note; that there was no agreed price between plaintiff and BMT for the machinery, the payment for which the note was allegedly executed.

The primary question presented here is whether or not guarantors who sign an absolute guaranty of a promissory note are liable to the obligee when the note itself is a forgery. We hold that they are not liable for the following reasons: (1) that the guaranty agreement is ambiguous; and it must be construed in the light most favorable to defendants, and, therefore, the defendants are guarantors rather than primary obligors; and (2) that there must exist a valid primary obligation to be guaranteed.

Defendants contend in their first point of error that the trial court erred in granting judgment on the promissory note against defendants after the jury found that the promissory note in question was a forgery. Plaintiff contends that defendants’ liability exists solely on their execution of the guaranty here. To sustain plaintiff’s position and to overrule defendants’ first point of error, we must ■ first construe the meaning of the guaranty in question to ascertain if the guaranty places a primary liability on defendants notwithstanding the fact that the note itself is a forgery, and thus a nullity. In following the generally accepted rules of construction in contract, we must look at the entire agreement as a whole and give effect to all words and phrases used therein to ascertain and give effect to the real intention of the parties as revealed by the language used. See Brown v. Brown, 245 S.W.2d 995, 997 (Tex.Civ.App.—Amarillo 1951, writ ref’d).

The determination of whether or not the guaranty, in and of itself, establishes the liability of the defendants turns on the question of whether or not it is clear and unambiguous on its face. It has been held that a contract is ambiguous only when application of pertinent rules of interpretation to the instrument as written leaves it genuinely uncertain as to which of the two or more meanings is the proper one. See Wynnewood State Bank v. Embrey, 451 S.W.2d 930 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e). Ambiguity is a question of law rather than of fact. Brown v. Payne, 142 Tex. 102, 176 S.W. 2d 306 (1943). Plaintiff here contends that the words “primary obligors” means that defendants are primarily liable as makers. The terms “guarantee” and “guarantor,” however, indicate a primary obligation of another by definition. See Southwest Savings Ass’n v. Dunagan, 392 S.W.2d 761, 766 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.). Defendants here cannot be both “primary obligors,” such as a maker, and secondarily liable, such as guarantors. It can, therefore, be seen that this clause is capable of two different constructions: the construction placed on the clause by plaintiff that would make defendants “primary obligors”; and the other construction that could reasonably be placed upon this clause is that the defendants are secondarily liable as guarantors. The term “primary obligor” and the term “guarantor” are mutually exclusive. We conclude, therefore, that the guaranty contract here is ambiguous on its face. Indeed, even plaintiff recognizes this ambiguity in that he first urges that the defendants are “primary obligors” under it in order to establish the liability of the defendants on the forged note, and then, in response to defendants’ action for usury, replies that they are “mere guarantors” under the same clause.

Since we conclude that the guaranty clause in question is ambiguous, we must now look to the attending facts and circumstances to ascertain the real intention of the parties and the construction placed on such agreement by the parties prior to the time of litigation. In this regard, it is significant that plaintiff’s president in its application to the Foreign Credit Insurance Association (hereinafter referred to as FCIA) for insurance dated August 16, 1971, designated defendant, James T. Bohart, as the “guarantor.” Again, on July 12, 1972, when plaintiff’s president filed a claim with the FCIA for the insurance previously issued on the note in question, again, plaintiff’s president listed the names of the defendants as “guarantors.” It is, therefore, clear to us that plaintiff, both prior to the execution of the guaranty by defendants and after the note was in default, considered the defendants as guarantors rather than persons primarily liable such as a co-maker. All of the documents referred to above were prepared and executed by plaintiff prior to commencement of this litigation. This evidence is even more compelling since plaintiff’s president, Mr. Feinstein, testified that over the years he had done financing through the FCIA and was thoroughly familiar with its procedures.

It has long been held in this state that where the meaning of a contract is ambiguous, that is, rendering it susceptible to two different interpretations, the one most favorable to the guarantor will be given effect. See Southwest Savings Ass’n v. Dunagan, supra; City State Bank & Trust Co. v. United Paperboard Co., 146 S.W.2d 832 (Tex.Civ.App.—San Antonio 1940, no writ).

Since we have concluded that this is a guaranty agreement and that the defendants are guarantors, the rule of strictissimi juris applies meaning that the guaranty agreement may not be extended by implication or construction beyond the precise terms of the contract. McKnight v. Virginia Mirror Co., 463 S.W.2d 428 (Tex.1971); Southwest Savings Ass’n v. Dunagan, supra; Hughes v. Straus-Frank Co., 127 S.W.2d 582 (Tex.Civ.App.—San Antonio 1939), affirmed, 138 Tex. 50, 156 S.W.2d 519 (1941). Since the defendants do not expressly guarantee the genuineness of the maker’s signature, we cannot say that the term “unconditionally guarantee (s) the prompt payment” should be broadly construed to include such a guaranty of genuineness. See Jarecki Manufacturing Co. v. Hinds, 295 S.W. 274 (Tex.Civ.App.—Eastland 1927), writ dism’d, 6 S.W.2d 343 (Tex.Comm’n App.1928); Ryan v. Morton, 65 Tex. 258 (1886).

The principles enunciated above have long been well-settled law in this state. In the early case of Smith v. Montgomery, 3 Tex. 199, 204 (1848), Mr. Justice Wheeler stated:

[I]t is not for the plaintiff now to say, after having treated the undertaking of the defendant throughout as that of a guarantor, and no more, his liability is that of a principal debtor. The question in every case of this class is, to whom did the guarantee originally look for the primary fulfillment of the engagement? If the whole credit be not given to the person who comes in to answer for another, his undertaking is collateral, and his liability that only of a guarantor.
The intention and understanding of the parties is the criterion in every case by which to ascertain the character of the contract and the extent of the liability.

This rule is applicable here inasmuch as plaintiff throughout the entire transaction treated defendants as guarantors and BMT as the principal obligor. It was not until after plaintiff learned through the FCIA investigation that the signature of BMT was a forgery that plaintiff first looked to defendants as “primary obligors.”

What then is the liability of defendants who have guaranteed the forged note under which, as a matter of law, the principal obligor is not liable? Plaintiff argues that since this type of guaranty has been construed as an “absolute” guaranty, that the measure of liability of defendants-guarantors here is primary and not secondary. He argues that where an absolute guaranty exists the guarantors incur independent liability, without reference to the principal obligation. Plaintiff further contends that this is true because Tex.Bus. & Comm.Code Ann. § 3.416(a) (Tex. UCC 1968) provides:

‘Payment guaranteed’ or equivalent words added to a signature mean that the signer engages that if the instrument is not paid when due he will pay it according to its tenor without resort by the holder to any other party. [Emphasis added.]

It is true, as plaintiff contends, that an obligee may sue an absolute guarantor without first maintaining suit against the principal obligor. Plaintiff cites numerous cases for this proposition. In all of these cases, however, there was a valid obligation on the part of the obligor under which the guarantor would have the right of subrogation against the obligor under Tex. Bus. & Comm.Code Ann. § 34.04 (Vernon 1968). For this reason, these cases are not in point and plaintiff’s position is without merit. The very essence of guaranty is that there be a primary obligation to be guaranteed. Here, since the note itself is a forgery, it is not an obligation on the part of the maker, and hence, there can be no obligation on the part of the guarantor. Moore v. Grain Dealers Mutual Insurance Co., 450 S,W.2d 954, 957 (Tex.Civ.App.—Houston [1st Dist.] 1970, no writ); Walter E. Heller & Co. v. Allen, 412 S.W.2d 712, 721 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.). This position is also supported in 10 Williston on Contracts § 1214, at 714 (3d ed. 1967), wherein it is-stated:

The general rule is that the surety is not liable to the creditor unless his principal is liable, thus he may plead the defenses which are available to his principal. An exception is that the principal’s defenses arising by operation of law are not available to the surety, nor are defenses of a personal nature.

Plaintiff also argues that defendants as guarantors have liability despite any lack of genuineness in the signature of the primary obligor because the jury found that the instrument was accepted by plaintiff-obligee without knowledge of the forgery. In support of this contention, plaintiff has cited 72 .C.J.S. Principal and Surety §§ 18 and 74 (1951). Section 18 provides:

The forgery of the names of one or more of several obligors to a bond or note does not release a surety thereon, if the obligee accepts the instrument without notice of the forgery.

Section 74 states:

If the obligee accepts the instrument in good faith, without notice of the forgery, it is no defense to a surety that he was induced to sign an instrument on the supposition that a prior signature thereon was genuine; he may be bound although the signature of the principal is a forgery.

We have carefully reviewed all of the cases cited by Corpus Juris Secundum for these statements and find that the holding of the cases do not support these conclusions. At best, some of the decisions indicate support by dictum. These statements set forth in Corpus Juris Secundum have never been the law in Texas. Plaintiff has cited us no Texas cases that support these propositions and we have been unable to find such a case. In fact, all Texas cases that we have reviewed indicate to us that this is not the law in Texas.

We, therefore, conclude that plaintiff’s contention is totally without merit. We hold that as between an innocent ob-ligee and an innocent guarantor of a forged note, that the innocent guarantor should prevail. This has long been the established rule. Simpson on Suretyship § 54, at 271 (1950):

When the principal’s signature upon an instrument is forged or unauthorized, a surety signing is not liable to the prom-isee. Since the creditor deals directly with the principal, the duty is upon him to ascertain the genuineness of the signature. The rule is to the contrary, however, when another surety’s signature is forged or unauthorized, provided this fact was not known to the promisee. The duty is upon the surety to determine whether the cosurety’s signature is genuine.

See Green v. Kindy, 43 Mich. 279, 5 N.W. 297 (1880).

If this is a contract of guaranty independent of the forged note, as our learned colleague Mr. Justice Guittard contends in his dissenting opinion, there must be consideration other than that of the indebtednesses represented by the note. The general rule is that where a contract of guaranty is entered into independently of the transaction which created the original or present debt or obligation, the guarantor’s promise must be supported by consideration distinct from that of the present debt. Such consideration cannot be found in the mere promise to pay the existing debt of another. Waller v. Missouri City State Bank, 482 S.W.2d 40, 43 (Tex.Civ.App.—Tyler 1972, writ ref’d n. r. e.); 38 Am.Jur.2d Guaranty § 45, at 1047 (1968); Green v. American Refining Properties, 22 S.W.2d 343 (Tex.Civ.App.—El Paso 1929, no writ).

Furthermore, we are persuaded that the decision of this court in Southwest Savings Ass’n v. Dunagan, supra, is directly applicable to the facts of this case. In Dunagan, this court found that since the maker of the note had never come into existence, there could be no obligation on the part of the maker, and, hence, no obligation on the part of the guarantor. We fail to see the distinction between the situation in Dunagan and the situation here. In Dunagan, the maker never came into existence and here, the obligation of the maker never came into existence.

This court in Dunagan has previously approved this decision when our Chief Justice stated:

A guaranty obligation is, by its very terms, a secondary obligation dependent upon the existence of a principal obligation.

Since no principal obligation existed in this case (on the part of the maker BMT), the obligation of the defendants never came into existence.

Because of our holding that the defendants are guarantors and are not liable under the forged note, we need not consider their counterclaim for usury. We, therefore, overrule defendants’ fourth point of error. In view of our holding here sustaining defendants’ first point of error, we need not address defendants’ other points.

Accordingly, the judgment of the trial court is hereby reversed and judgment rendered that plaintiff take nothing against defendants.

CLAUDE WILLIAMS, C. J., concurs.

GUITTARD, J., dissents.

CLAUDE WILLIAMS, Chief Justice

(concurring).

I agree with Associate Justice Akin that the trial court erred in rendering judgment against Mr. and Mrs. Bohart, Any possible liability on the part of the Boharts must flow from the guaranty agreement signed by them and attached to a promissory note which had been purportedly signed by Beneficiadora de Minerales de Tlaxcala, S.A., a Mexican corporation, and bearing the name of Universal Metals and Machinery, Inc., as payee. It subsequently developed, and was so found by the jury that the signature of the maker-corporation was a forgery.

I am convinced that the guaranty agreement executed by Mr. and Mrs. Bohart, and which is copied verbatim in the majority opinion, is ambiguous on its face and being ambiguous, we must construe such instrument in favor of the Boharts. Having done so, it necessarily follows that their liability as guarantors never came into existence because of the nonexistence of a maker of the note to be guaranteed.

The rules governing the question of ambiguity of instruments are well settled:

(1) The question of whether an instrument is ambiguous is one of law to be determined by the court and not by a finder of fact.

(2) After applying established rules of interpretation to the questioned agreement, if it remains reasonably susceptible of more than one meaning it is ambiguous, “but if only one reasonable meaning clearly emerges it is ■not ambiguous.” [Emphasis added.] Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951).

(3) The writing, as a whole, must be looked to and given its reasonable, natural and probable meaning. It must be interpreted according to the obvious import of its language without resorting to a subtle or a forced construction. One clause cannot be considered by itself, but every clause must be considered with reference to the whole instrument as well as with reference to every other clause. Brown v. Brown, 245 S.W.2d 995, 997 (Tex.Civ.App.—Amarillo 1951, writ ref’d).

(4) Where the parol evidence admitted is undisputed, the question as to what the parties intended by the instrument is one of law to be determined by the court. Dallas Hotel Co. v. Lackey, 203 S.W.2d 557, 561 (Tex.Civ.App.—Dallas 1947, writ ref’d n.r.e.).

An examination of the guaranty agreement before us definitely compels the conclusion that one reasonable meaning does not clearly emerge therefrom. Thus, when one reads the words “primary obligor (s)” standing alone, it might be reasonably concluded that such words would import to the signers of the instrument the same liability as the maker of the promissory note. On the other hand, the words “unconditionally guarantee (s) the prompt payment of principal and interest on the foregoing promissory note . . . . ”, especially when considered in the light of .the words “guarantor (s)” appearing in two places under the signature lines following the body of the instrument, and also reference to “the maker of the foregoing promissory note” strongly indicates the purpose and intent of the parties to create a secondary obligation on the part of the signers of this instrument, as opposed to a primary obligation on the part of the maker of the note. Such words also clearly demonstrate the purpose and intent of the parties that there would be a “promissory note” which comprehends a valid note containing both a maker and a payee. A primary obligation is one which is the principal object of the contract. A guaranty, on the other hand, is an undertaking to answer for another’s liability and collateral thereto. In other words, it is a collateral undertaking to pay the debt of another in case such other person does not fulfill his obligation. These two legal relationships are different in character and the assumption of each leads to a different legal result. So, in this instance, we have an instrument which contains language which may reasonably be said to imply two different interpretations and two or more meanings and is, therefore, ambiguous. This fact of ambiguity appears very definitely and realistically from the position taken by Associate Justice Guittard in his dissenting opinion.

The diversity of opinion concerning the true meaning of the instrument is also clearly and convincingly demonstrated by the fact that appellee takes the position in his main thrust that the Boharts were primary obligors on the instrument and then, in defense to the usury claim by the Bo-harts, appellees blandly assume the position that the Boharts were really nothing more than guarantors.

I am convinced from reading the entire record in this case that it was the purpose and intent of the parties to the transaction that Mr. and Mrs. Bohart were to be nothing more than guarantors of the obligation of the Mexican corporation. At the outset of the transaction a promissory note was forwarded to the Mexican corporation and signed by it with no guarantors. Appellee being advised that the Foreign Credit Insurance Association would not accept this note without guarantors, another instrument was submitted and purportedly signed by the Mexican corporation and also by Mr. and Mrs. Bohart, as guarantors. At no place in this record do we find any indication of purpose and design on the part of the parties to impress upon the Boharts an original obligation independent of the forged promissory note. Had this been the intention of the parties, the Boharts would have signed, not as guarantors, but as comakers.

Being ambiguous, the instrument must be strictly construed in favor of the Boharts as guarantors. I, therefore, concur in the finding that such instrument was nothing more than a guaranty agreement signed by the Boharts and since there was never any primary obligation brought into existence by the execution of a maker then there can be no liability as to such guarantors. Being guarantors, the sine qua non of liability against them must be the existence of a primary obligor in the form of the maker of the note. The maker of the note did not sign the same and, hense, no valid promissory note ever came into existence. There being no primary obligation, there can be no secondary obligation against the Bo-harts. Associate Justice Guittard, in his dissenting opinion, admits that “the obvious purpose of the guaranty was to assure the bank and the agency that the guarantors would stand responsible for this particular note.” I agree with this statement but point out that it postulates the existence of a valid, primary obligation by the corporation before liability would be laid at the door of the guarantors, in this instance, the Boharts.

A reading of the lengthy and obviously strained effort on the part of my Brother Guittard in his dissent to demonstrate lack of ambiguity does precisely the reverse. As Chief Justice Calvert said in Daniel, supra, it is only when one meaning clearly emerges from the instrument that it is said not to be ambiguous. The dissent does more than anything else to vividly illustrate the absence of one clear meaning. To impose liability upon the Boharts based upon such an ambiguous instrument would result in serious injustice.

For these reasons, I join Justice Akin in reversing the trial court’s judgment and rendering judgment that appellee take nothing against appellants.

GUITTARD, Justice

(dissenting).

I do not agree that the terms “primary obligor(s)” and “guarantee(s)” are mutually exclusive and create an ambiguity in the instrument so as to invoke the rule that it should be interpreted most favorably to the guarantors. Neither do I agree that the term “guarantee” necessarily implies a valid primary obligation on the part of someone other than the guarantors. I conclude, rather, that the language of the document is clear, and that it is an independent contract imposing liability on the guarantors if the note is not paid, without reference to any liability of the apparent maker of the note.

The court’s holding, as stated in the opinions of both Justice Akin and the Chief Justice, that the language of the contract is ambiguous, is based on theory that the words “primary obligor (s)’’ and “guarantee(s)” contradict each other and leave the meaning uncertain. Without any attempt to reconcile these terms so as to give effect to both, the majority applies the rule of strict construction in favor of the guarantors, and also resorts to extrinsic evidence to determine the parties’ intention. By this process, the court construes the contract so as to render the words “primary ob-ligor (s)” meaningless.

I regard this method of construction as contrary to the accepted rules for interpretation of contracts. In Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951), Justice Calvert, speaking for the Supreme Court, said that a contract is ambiguous only when the application of pertinent rules of interpretation to the face of the instrument leave it genuinely uncertain which one of two or more meanings is the proper meaning. Id. at 157. He explained that the primary concern is to give effect to the true intention of the parties, and that to achieve this object, the courts will examine the entire writing, “seeking as best they can to harmonize and to give effect to all the provisions of the contract so that none will be rendered meaningless.” Id. at 158. Likewise, in Young v. De la Garza, 368 S.W.2d 667, 670 (Tex.Civ.App.—Dallas 1963, no writ), this court held that apparently conflicting contractual provisions “are to be reconciled and harmonized, if possible, by reasonable interpretation, and the contract as a whole given effect.” If the apparently conflicting provisions can be harmonized, the contract is not ambiguous, and there is no occasion to apply the rule that a guaranty is to be construed most favorably to the guarantor.

When I apply these rules, I have no difficulty in harmonizing the expression “as primary obligor (s)” with the word “guarantee (s).” I concede that “guarantee” and “guaranty” are sometimes used in a strict technical sense to mean a collateral agreement creating a secondary rather than a primary obligation. This, however, is not the only sense in which these words are used. They are also used in the sense of an assurance that someone else will perform, regardless of whether that person is legally bound.

A “guaranty” is a species of indemnity contract. It is a promise to stand responsible for occurrence of an event that may not be directly within the control of the immediate parties to the contract. The problem of interpretation is to identify the event for which responsibility is assumed. If that event is a third person’s discharge of his legal obligation, no liability arises unless the third person is legally bound. Accordingly, the guarantor’s obligation is termed “secondary.” If that event is a third person’s performance of a specified act, the guarantor’s liability arises when the third person has failed to perform as specified, irrespective of his legal obligation. In this situation the guarantor’s obligation may properly be termed “primary.” This analysis is confirmed by the following passage from Simpson on Suretyship § 55, at 277 (1950):

It is obviously possible for S to guarantee that P will render the promised performance. It is equally possible for S to guarantee that P will render such performance as he is legally bound to render. In the latter case it is clear that by the terms of his contract the surety is liable for nothing if the principal is under no liability. In the former case it is just as clear that the surety is liable upon the principal’s nonperformance of his promise, irrespective of whether the principal was legally obligated to perform it, inasmuch as a promisor, if he so intends, may obligate himself to pay if acts are not performed. . . . [I]t is a problem of intention. Although it is true that unless the principal is legally obligated, the promisor cannot be bound as a guarantor, or surety, yet the question is not how the defendant is bound, but whether he is bound or not. An assumption that the promisor intends to be bound only as a technical surety or guarantor, otherwise not at all, is doubtless often contrary to fact.

The author cites Backus v. Feeks, 71 Wash. 508, 129 P. 86 (1913), in which a bond was given to guarantee payment of rent under a five-year lease. The lease was effective only as a monthly tenancy because it was not acknowleged as required by law. The court treated the scope of the guaranty as a question of intention and enforced the bond regardless of the invalidity of the lease. In support of this holding, the court quoted from 20 Cyc. 1421 as follows:

A guaranty of an existing contract may stand by itself, although the obligation guaranteed is invalid .... And as the guarantor may by the terms of his contract make himself liable for the principal debt, although it be invalid, the question of whether the liability of a guarantor is to be measured by the liability of the principal debtor is largely a matter of interpretation of the contract of guaranty.

In accordance with these authorities, courts have generally interpreted a guaranty of payment of a particular existing note as a guaranty of the act of payment rather than a guaranty of the discharge of the obligation to pay, even though the contract does not provide, as does the contract here, that the guarantor’s obligation is “primary.” The leading case is Veazie v. Willis, 72 Mass. (6 Gray) 90 (1856), in which the defendant had declined to endorse a note, but had signed a separate document specifically describing the note and guaranteeing its payment. The signatures of the maker and one of the endorsers had been forged. In holding the guarantor liable, the court observed that if the promise had been written on the note itself, no one would contend that the guarantor could avoid liability to a bona fide purchaser by showing that the names of the prior parties were forged. The opinion continues as follows:

The ground of objection to the maintenance of the action is, that the contract, on the part of the defendant, was made upon the assumption that all the names borne on the note were genuine signatures, and that he intended only to guaranty the solvency and ability of the parties to pay the same, treating all the names thereon as liable, as parties to the note. But it appearing, upon the facts stated, that the defendant guarantied the payment of this particular note, and thereupon the plaintiff concluded his agreement to purchase the note, both parties being equally innocent as to any fraud, misrepresentation or concealment, the court are of opinion that, upon the nonpayment of the same at its maturity by the parties whose names were borne thereon, the defendant, under his guaranty, became liable to pay the same to the plaintiff, although it now is made to appear that the names of the maker of the note and one of the indorsers were forgeries.

This decision was cited and followed in Jones v. Thayer, 78 Mass. (12 Gray) 443, 74 Am.Dec. 602, 603 (1860). There, the defendant had guaranteed payment of a note signed by one Messer, and, when sued on his guaranty, he defended on the ground that Messer’s liability on the note was not established because Messer had made it payable to himself and had not endorsed it. The court held that since the particular note in question was exhibited to the defendant when he gave his guaranty, he was bound, and since both of the parties were equally ignorant of the defect, although the guarantor would have had less rights on the instrument if required to pay it, than he supposed, that was his own error, for which he was responsible.

Likewise, in Holm v. Jamieson, 173 Ill. 295, 50 N.E. 702, 704 (1808), a guaranty of payment was endorsed on a note, and the guarantor was held liable even though the purported maker was a corporation whose name was signed by its treasurer without authority. The court said:

A guarantor may make a contract which is collateral, or one which is independent. This guaranty was an absolute undertaking that the maker would pay the note when due, and by the default of the principal an immediate liability existed. The undertaking of the guarantor was an independent contract, not resting on a necessity to exhaust a remedy against the maker; but, by the terms used in the guaranty, it was an undertaking to every subsequent holder that the instrument guarantied was perfectly valid. By a guaranty of this character, the guarantor undertakes to every subsequent holder that the names of the maker and previous indorsers are really in the handwriting of those to whom they respectively purport to belong; and this is carried to the extent that, where a promise has been written upon the note itself, a person guarantying the payment of that note is bound, even though the names of prior parties, or some one of them, were in fact forged.

A similar holding was made in Newark Finance Corp. v. Acocella, 115 N.J.L. 388, 180 A. 862, 864 (1935). There, a guaranty of payment was endorsed on the back of a note. The court held the guarantor liable even though the maker’s signature was forged, saying that the word “guarantee” did not restrict the liability of the endorser as defined by the Uniform Negotiable Instruments Act, but, to the contrary, had the effect of enlarging it.

The same rule has been applied in the case of a surety who adds his signature on a document along with a forged signature. Since the signature of the surety is evidence of his intention to be a primary obligor on the particular note in question, he is liable to an innocent payee, even though he signed in the belief that the forged signature was genuine. Helms v. Wayne Agricultural Co., 73 Ind. 325, 329, 38 Am.Rep. 147 (1881); and see, Young v. Perry, 187 Ala. 122, 65 So. 817, 818 (1914).

Texas authority, also, supports an interpretation of “guarantee” as consistent with a primary obligation. In El Paso Bank & Trust Co. v. First State Bank, 202 S.W. 522, 524 (Tex.Civ.App.—El Paso 1918, no writ), a bank sent a telegram to another bank stating, “[we] guarantee payment” for a carload of watermelons to be shipped to a produce company. The court held this telegram to be “an absolute guaranty of the payment of the money,” and, therefore, a “primary and positive agreement” rather than a collateral liability. Accordingly, the suit on the guaranty was held not to be subject to the defenses that the melons did not come up to the agreed standard of weight or quality or that they were not shipped within the time agreed upon between the buyer and the seller. This result was reached even though the telegram did not expressly use the term “primary obligation.”

Likewise, in Ganado Land Co. v. Smith, 290 S.W. 920, 923 (Tex.Civ.App.—Galveston 1927, writ ref’d), a guarantor endorsed on the back of a note, “I guarantee payment of the within note . . . .” The guarantor was held to be “an absolute guarantor of the payment of the note and was primarily liable for its payment by reason of his guaranty.” (Emphasis added.)

None of the authorities cited by the majority are contrary to those above discussed. Walter E. Heller & Co. v. Allen, 412 S.W.2d 712, 721 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n.r.e.), recognizes that a guarantor may assume a “less or greater liability” than that of the principal. The quotation from 10 Williston on Contracts § 1214 (3d ed. 1967) states the general rule that a surety or guarantor is not liable to a creditor unless the principal is liable, but the same author recognizes as one of the exceptions to this rule that a “defect in an apparently valid obligation” may be among the defenses not available to a guarantor. Id. at 715, 716. Cases cited in support of this text include several in which the defense was forgery of the principal obligation.

The present case is not controlled by Southwest Savings Ass’n v. Dunagan, 392 S.W.2d 761 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.), since there the guaranty was not attached to a particular note, nor did it use the term “primary obligors” or any equivalent language. The guaranty agreement in question referred to a note to be executed by a certain corporation which was yet to be incorporated, and the note sued on was executed by a different corporation. Under these circumstances, the court held that the guaranty was ineffective because the principal obligation referred to never came into existence.

Since, in view of the authorities above discussed, the term “guarantee” is consistent with an intention to assume a primary obligation, all the provisions of this contract may be harmonized and given effect. The contract provides that the undersigned parties “as primary obligor(s) hereby . unconditionally guarantee(s) the prompt payment of principal and interest on the foregoing promissory note when and as due in accordance with its terms.” The unconditional guaranty of payment of the particular note referred to is sufficient evidence in itself of a primary obligation under the applicable authorities. Use of the words “as primary obligors” removes all doubt. Although “guarantee (s)” in itself might be subject to more than one interpretation, the unequivocal meaning of the agreement as a whole is that the undersigned parties guarantee that BMT, the corporation named in the note, will pay the amount specified at the time stated, and that if it does not pay, the obligation of the guarantors is primary rather than secondary. The guarantors “guarantee” payment in the sense that they promise to be responsible if the corporation does not pay as provided in the note, and their obligation is “primary” in the sense that it does not depend on the obligation of the corporation. I see nothing contradictory or “mutually exclusive” about the use of both terms.

As a consequence of my view that the contract is not ambiguous, I have no occasion to resort to extrinsic evidence of circumstances to determine the intention of the parties. I will observe, however, that the circumstances under which this agreement was signed are consistent with my view that the guaranty was intended as a primary obligation. The note appeared to be a valid document signed by a Mexican corporation. Plaintiff was not aware of the forgery, according to the jury’s finding. As payee of the note, plaintiff intended to negotiate it to a bank, and have it insured by a federal agency concerned with encouragement of foreign trade. A previous note without guaranty was not acceptable to either. The insuring agency furnished a form of guaranty agreement intended to satisfy both itself and the bank. The obvious purpose of the guaranty was to assure the bank and the agency that the guarantors would stand responsible for payment of this particular note. Presumably, neither the bank nor the insuring agency would accept responsibility for determining whether the Mexican corporation was legally bound to pay. Any suit against the corporation might have to be prosecuted in Mexico, and aside from the inconvenience of such a remedy, the enforceability of such a note under Mexican law may not have been entirely clear. The guarantors were American citizens with contractual relations with the corporation. They agreed to guarantee the note “as primary obligor (s).” This language could only be understood by the bank and the agency, and also by the payee, as obviating any question of whether the corporation was legally bound. The majority’s holding that the guarantors’ liability depends on that of the corporation would permit them to avoid the guaranty on any ground available to the corporation, and thus defeat a major purpose of the guaranty.

For the reasons stated, I am unable to concur in the judgment of the court.

      . Simpson on Suretyship § 14, at 16 (1950) states: “The guarantor’s promise is separate, is expressly conditioned on the principal’s failure to perform, and gives rise to a secondary duty.”

      . Tex.Bus. & Comm.Code Ann. § 3.404(a) (Tex. UCC 1968) provides:
      “Any unauthorized signature is wholly inoperative as that of "the person whose name is signed . . ..”
      “Unauthorized signature” is a defined term (§ 1.201). It includes a forgery.

      . Newark Finance Corp. v. Acocella, 115 N.J.Law 388, 180 A. 862 (New Jersey Supreme Court 1935) is such a case. In Acocel-la, a forged note endorsed by defendant was negotiated to plaintiff, and the endorser held liable. The holding of the New Jersey Supreme Court was based upon their Uniform Negotiable Instrument Act. By dictum the court made the following statement: “We • are therefore of the opinion that, although the defendant was charged with having ‘guaranteed and warranted payments,’ yet the legal efficacy of that undertaking was tantamount to that of a suretyship.” We have shepardized Acocella and find that it has been cited in only three cases in the last forty years and has never been cited, other than in Corpus Juris Secundum, for the proposition urged here by plaintiff. We, therefore, conclude that this dictum of some forty years ago by the Supreme Court of New Jersey is not persuasive authority for plaintiff’s contention.

      . The opinion of Justice Akin states that an independent guaranty agreement must be based on a separate consideration. I do not reach this question, since the agreement recites “value received,” and lack of initial consideration has not been raised either in the trial court or in this court.

      . Of. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951), in which the court said that in the absence of ambiguity there was no occasion to apply the rule that a contract is to be construed most strongly against its author.

      . Gf. Tex.Bus. & Comm.Code Ann. § 3.416 (a) (Tex. UCC 1968) :
      “Payment guaranteed” or equivalent words added to a signature mean that the signer engages that if the instrument is not paid when due he will pay it according to its tenor without resort by the holder to any other party.
      The comment under this section states that when a guaranty of payment is added to an indorsement, “the liability of the indorser becomes indistinguishable from that of a comaker.”

      . Cf. Estes v. Continental Bank & Trust Co., 421 S.W.2d 158, 161 (Tex.Civ.App.—Dallas 1967, no writ), in which this court considered a contract of guaranty which expressly provided that the liability of the guarantors “shall be primary and not secondary.”


author: KEITH, Justice.

text:
    Jack O. NUTTER et al., Appellants, v. Gil K. PHARES, Trustee, Appellee.
    No. 7700.
    Court of Civil Appeals of Texas, Beaumont.
    May 1, 1975.
    Rehearing Denied May 22, 1975.

      Dan Hennigan, Houston, for appellants.
    Perry McPherson, Port Arthur, for ap-pellee.
   KEITH, Justice.

Defendants have filed their petition for writ of error to review a summary judgment entered by the trial court, and plaintiff has filed a motion to dismiss.

Following service of process on the defendants, an answer was filed on their behalf by W. W. Selman and Dale Harvill, the signature being that of Harvill. Plaintiff served requests for admission on counsel who had answered, but no replies were made nor did counsel seek an extension of time within which to prepare and file answers thereto.

Thereafter, plaintiff filed his motion for summary judgment, the trial court set a date for hearing of the motion and notice was given to counsel who had answered for the defendants. Upon the date of the hearing, according to the record of the proceedings, defendants appeared through W. W. Selman and Dale Harvill with “Hon. Michael E. Shelton, Of Counsel.” Mr. Shelton sought an extension of time within which to file answers to the requests for admissions but such was denied. Mr. Shelton then participated in the hearing on the motion for summary judgment. The judgment was actually signed by the trial judge on the day of the hearing.

Sixty-two days after the entry of the judgment, defendants filed their petition for writ of error and plaintiff has filed his motion to dismiss for want of jurisdiction. Defendants have answered the motion to dismiss by attaching affidavits of the defendants, which are identical in content, stating: (a) that he retained W. W. Sel-man as his attorney to represent him in the suit; (b) the contract of employment was oral and he did not authorize Selman to retain other counsel to represent him; (c) that more than thirty days after the entry of the judgment he learned that judgment had been entered and learned for the first time that Harvill had signed an answer in his behalf; (d) that he did not know Har-vill and did not consent to or authorize him to represent him in the suit; (e) he learned also that Shelton had appeared at the hearing but that he did not know Shelton and did not authorize or consent to his appearance in the proceeding.

There were no affidavits submitted from Selman, Harvill, or Shelton. Plaintiff has not controverted defendants’ affidavits.

The judgment entered by the trial court at the conclusion of the summary judgment hearing recited that the defendants “had appeared herein by filing answer,” but did not recite the appearance of counsel at the hearing. Participation in the hearing by Attorney Shelton is shown only by the statement of facts.

The courts hold that the provisions of the statute denying the right to use a petition for writ of error to review a judgment when a party appeared in the trial are mandatory, jurisdictional and cannot be waived. Leuer v. Smith, 335 S.W.2d 775, 777 (Tex.Civ.App.—San Antonio 1960, no writ); Brandt v. Village Homes, Inc., 466 S.W.2d 812, 813 (Tex.Civ.App.—Fort Worth 1971, no writ); Thacker v. Thacker, 496 S.W.2d 201, 205 (Tex.Civ.App.—Amarillo 1973, writ dism’d).

This court is authorized, by affidavit or otherwise, to ascertain matters necessary to the proper exercise of our jurisdiction. Vernon’s Tex.Rev.Civ.Stat.Ann. art. 1822 (1964); Texas Rules of Civil Procedure, rule 406; Farmer v. Cassity, 152 Tex. 570, 262 S.W.2d 392, 393 (1953); Rosenfeld v. Steelman, 405 S.W.2d 301, 303 (Tex.1966).

We are also familiar with the rule that recitations in a judgment of the trial court cannot be impeached by such affidavits. See Leuer v. Smith, supra, where the court referred to the statement of facts to show participation in the trial of the cause. It has even been held that an actual appearance is not required at a hearing on the motion for summary judgment. Thacker v. Thacker, supra.

Under the record, as made in the trial court, defendants participated in the actual trial of the cause and are denied the right of review of the judgment by writ of error. Thacker v. Thacker, supra (496 S. W.2d at 203), and cases therein cited. Thus, the question now ripe for consideration may be stated in this manner: May defendants, by their own posttrial affidavits, by denial of the authority of the attorney, procure such review? Although we find no direct authority for our answer, we are of the opinion that such a result is not in accord with the law of this state and answer the question in the negative.

At the outset of our discussion we note that, while a defendant may require plaintiff’s counsel to exhibit his authority to maintain the suit under Tex.R.Civ.P. 12, there is no similar provision by which a plaintiff may question the authority of counsel to appear for a defendant. Angelina County v. McFarland, 374 S.W.2d 417, 423 (Tex.1964).

The judgment from which defendants now seek to appeal was regular upon its face. It recited the appearance of the defendants by the filing of the answer; and, defendants’ own affidavits show that personal service of citation was had long before the judgment was entered. Thus, the trial court had jurisdiction over the defendants and the subject matter of the litigation. Moreover, this judgment became final on December 12, 1974. Tex.R.Civ.P. 329b, § 5. Defendants did not file their petition for writ of error until January 14. 1975.

The record shows conclusively that the trial court had jurisdiction to enter the judgment and, under the authorities discussed earlier, this court has no jurisdiction to consider the petition for the writ of error. Defendants’ attempt to impeach the judgment by their own affidavits is a collateral attack upon a final judgment and may not be considered. See generally, Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325, 328 (1895); Akers v. Simpson, 445 S.W.2d 957, 959 (Tex.1969); G. Hodges, “Collateral Attacks on Judgments,” 51 Tex.L.Rev. 163, et seq. (1962).

We recognize the fact that a petition for writ of error is a direct attack upon a judgment; but, that is not the point now under consideration. Defendants seek to invoke our jurisdiction by the petition for writ of error by making a collateral attack upon the judgment, i. e., it was entered after an appearance by an unauthorized attorney.

We will not go behind the judgment itself to determine if defendants’ contentions, as urged, have merit. It is sufficient to say that, in the posture in which the question is presented, we will not permit a collateral attack upon a final judgment to be used as a base for the invocation of our appellate jurisdiction.

The attempted appeal—by writ of error—is not to be used as a substitute for a bill of review. As to the latter form of relief, we express no opinion as to its applicability, simply commenting that it is in the nature of a direct attack upon the judgment for defects not apparent upon the face of the judgment roll. See and compare McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 709 (1961); and Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.1974).

The petition for the writ of error is dismissed for want of jurisdiction.


author: BISSETT, Justice.

text:
    Harold R. KEYSER, Appellant, v. H. H. LACKEY, Appellee.
    No. 951.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 15, 1975.
    Curtis B. Dyer, Corpus Christi, for appellant.

      Cecil D. Redford, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is a personal injury case. Harold R. Keyser sued H. H. Lackey to recover damages which he allegedly sustained when the vehicle he was driving collided with a cow owned by defendant. Following a jury trial, the trial court rendered judgment that plaintiff take nothing by his suit against defendant. Plaintiff has appealed.

The accident made the basis of this suit occurred on Farm Road 2986 in San Patri-cio County, Texas, on November 30, 1971, at about 7:30 o’clock p. m. Plaintiff, immediately preceding the accident, was driving a wrecker truck along the road. Suddenly, several cows ran across the road in front of his vehicle. He swerved his truck in an attempt to avoid running into them. His vehicle collided with a cow that was owned by defendant. Plaintiff was injured and his truck was damaged.

Defendant, on the day of the accident, had 17 head of cattle in a pasture that was situated in close proximity to the scene of the collision. It was enclosed with a four-strand barbed wire fence. A wire gap, 12 to 14 feet wide, was installed in a portion of the fence. The gap, sometimes referred to in the record and briefs as a “gap-gate”, was located near a corral and a water tank within the enclosure, and constituted a means of ingress into and egress out of the pasture. It was kept in a closed position by means of wire hoops at the top and bottom of a fence post, which were looped over the top and under the bottom of a post that was attached to the free end of the gap. The pasture was about two miles distant from defendant’s residence.

Defendant, a few days before the accident occurred, had been engaged in the repair of the fences which enclosed the pasture. He stated that such repairs were “normal procedure”, and that he had selected that particular time of the year for the work because it was during the “slack season”. While defendant admitted that he was in the process of replacing all of the fences on the date of the accident, he further testified that on that date, the fence in its then condition, was sufficient to keep cattle in the pasture.

Defendant said that he had been to the pasture between 6:00 and 6:30 o’clock p. m. on the day of the accident, and at that time all of his cattle were in the pasture and the gap was closed. After going to the scene of the accident, where he identified the cow which was hit by plaintiff’s truck as being one of his cows that ranged in the pasture, he went back to the pasture and found “that the gap was open and thrown back in the pasture”. He also discovered that seven or eight other cows and a calf were then missing from the pasture. He later located the cows, but never did find the calf. The next day he inspected the fences which enclosed the pasture. He did not find any place in the fence where the cows could have gotten out of the pasture. The gap was not locked by means of a padlock, and when asked why, defendant said:

“I never thought it was necessary to be locked. And I don’t think a lock will stop anybody, if they want to go in there to steal a yearling”.

Defendant was of opinion that the cows got out of the pasture because the gap was down. No other witness expressed an opinion as to how they escaped the pasture.

The jury, in response to Special Issue 1, found that defendant did not fail “to maintain the type of enclosure for his cattle as would have been maintained by a person using ordinary care”. That finding is not challenged by plaintiff in this appeal. In Special Issues 3 and 4, it was found that defendant’s “failure to lock the gap in the fenced pasture was negligence”, and that “such failure was a proximate cause of the occurrence in question”. After the verdict of the jury had been received and filed, defendant filed a motion for judgment and a motion for judgment notwithstanding the verdict of the jury, wherein he asked that the jury’s answers to Special Issues 3 and 4 be disregarded, and that judgment be rendered in his favor since the only ultimate issue and only material issue was answered favorably to him. The trial court granted both motions and rendered judgment accordingly.

Plaintiff, in his first point, contends that the trial court erred in granting defendant’s motion for judgment notwithstanding the jury’s verdict “for the reason that there is evidence upon which the jury could and obviously did, conclude that it was negligence and a proximate cause of the accident and resulting injuries for the ap-pellee to fail to lock the gap-gate.” He does not complain of the granting of defendant’s “motion for judgment”.

It has long been the rule in this State that a trial court need submit to the jury only the controlling issues made by the written pleadings and the evidence. Texas Rules of Civil Procedure, rule 279; Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940).

It is also well settled that the trial court may, upon motion, disregard any special issue finding that has no support in the evidence, or is immaterial to the controlling issues of the case, or is merely evi-dentiary. T.R.C.P. 300, 301; American Mutual Liability Insurance Company v. Parker, 144 Tex. 453, 191 S.W.2d 844 (1946); Brokaw v. Collett, 1 S.W.2d 1090 (Tex.Comm’n App.1928).

No one actually saw the cattle when they got out of defendant’s pasture. The only deductions that can reasonably be drawn from the evidence are: 1) someone, whose identity was not established by the record, between the hours of 6:00 and 7:30 p. m. on November 30, 1971, opened the gap and left it open; 2) the cattle escaped the pasture through the open gap; and 3) the gap remained open until it was closed by defendant after the accident had occurred.

Plaintiff argues that defendant was negligent because he did not secure the gap with a padlock. The argument cannot be sustained. There is no evidence: 1) that the cattle could go through the gap when it was in the upright (closed) position and kept in place by the loops; 2) that the failure to lock the gap with a padlock was negligence; 3) of any duty on the part of defendant to lock the gap with a paddock; or 4) of any custom or usage that required a person similarly situated to lock a gap in a pasture fence with a padlock. Even if it be assumed that it was negligence not to lock the gap by use of a padlock, there is not evidence that such negligence was a proximate cause of the accident. The use of a padlock would not have prevented a third person’s leaving the gap down after he had opened it. The proximate cause of the accident made the basis of this suit was the act (by an unknown person) of leaving the gap open, not the failure to secure the gap with a padlock. Neither foreseeability nor cause in fact are established. There is no evidence that but for the failure to use a padlock the accident would not have occurred. The answers by the jury to Special Issues 3 and 4 have no support in the evidence, and were answers to immaterial issues. They need not have been submitted. The trial court, pursuant to defendant’s motion, properly disregarded such answers and rendered judgment for defendant. The controlling issue at the trial of this case was whether the fence maintained by defendant was adequate to keep defendant’s cattle within the enclosure, and nothing more. See Ramey v. Richardson, 397 S.W.2d 288 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.), for a case in point. Plaintiff’s first point of error is overruled.

Plaintiff, in his second point of error, complains that the trial court erred in refusing to permit the introduction into evidence of certain deposition testimony by the defendant that his cows had escaped from the fenced pasture on prior occasions. While we have some doubt as to whether the actual testimony which plaintiff offered on a bill of exception is properly before this Court for appellate review, we nevertheless, do consider such testimony. Plaintiff, according to the statement of facts, offered the deposition testimony in these words:

“All right, page 10, line 20; page 12, line 19; page 22, line 12 through line 21 — or line 20.
That’s all.”

The court then announced:

“Consider it offered for a bill”.

The actual deposition testimony is not set out in the statement of facts, but a copy of defendant’s deposition was physically among the exhibits which were attached to and made part of the record. Plaintiff contends that the copy, being an unnumbered exhibit to the statement of facts, constitutes part of the record on appeal, and is sufficient to inform this Court of the substance of the excluded testimony. Be that as it may, good reason exists why the point should be overruled.

The only portion of the offered testimony which is relevant to the point is found in line 12 through line 20, page 22, of the deposition. Those lines read, as follows:

“Q. Okay. Has any official body, Portland Police or County people or anybody else, at any time, before this accident occurred, notified you or warned you about your cattle being out on the roadway ?
A. They notified me because up, oh, maybe a year before, the fence had gotten torn down, and they drifted. That was in the winter time with — they drifted down to the edge of Portland”.

The general rule in Texas is that evidence of similar acts of negligence is inadmissible on the issue of whether a person was negligent in doing or not doing a particular act. Missouri, K. & T. Ry. Co. v. Johnson, 92 Tex. 380, 48 S.W. 568 (1898). An exception to the rule exists where a proper predicate has been laid which shows that the unrelated accident occurred at the same place under substantially similar circumstances or by means of the same instrumentality. Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950).

In this case, no predicate was laid by plaintiff for the introduction of evidence with respect to cattle having escaped from the fenced pasture on prior occasions. There is no testimony from anyone that the condition of the fences at the time the cattle got out of the pasture on prior occasions was substantially the same as when they got out on November 30, 1971, the day of the accident made the basis of this suit. On the contrary, the testimony which was offered on the bill of exception is to the effect that the cattle got out of the pasture about a year previous to the date of the accident because “the fence had gotten torn down”, while the undisputed evidence in this case is to the effect that the fences which enclosed the pasture on the day of the accident would hold cattle within the pasture on that day. The conditions under which the cattle escaped on the prior occasion were not shown to be the same as those which existed on the day of the accident. The two escapes by the cattle are not connected in any special way. The offered testimony was properly excluded. Plaintiff’s second point is overruled.

The judgment of the trial court is affirmed.