author: BARROW, Chief Justice.

text:
    CENTRAL ADJUSTMENT BUREAU, INC., Appellant, v. Henry P. GONZALES et ux., Appellees.
    No. 15448.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 24, 1975.
    Rehearing Denied Oct. 22, 1975.

      Wyckoff, Eikenburg, Dunn & Frazier, Stephen S. Mims, John Eikenburg, Houston, for appellant.
    Evans & Marshall, Allen F. Cazier, San Antonio, for appellees.
   BARROW, Chief Justice.

Appellant, a professional collection agency, has perfected its appeal from an adverse judgment rendered on a jury verdict in appellees’ suit to recover damages under Article 5069, Section 11.01 et seq., Tex.Rev. Civ.Stat.Ann. (Supp.1975), for alleged illegal collection practices. The jury found that appellant had violated the statute in several instances and that the sum of $3,500 would fairly and reasonably compensate Mrs. Gonzales for her injuries resulting from the acts, words, or conduct of appellant. The jury also found that the sum of $2,925 should be allowed appellees for attorneys’ fees. Judgment was entered on this verdict for both sums.

Appellant complains of this judgment by three points of error: (1) the trial court erred in overruling appellant’s objections to Issues Nos. 2, 3, 4, 6, 7 and 8 because these issues were not submitted in the language of the statute; (2) the trial court erred in overruling appellant’s objections to Issue No. 13 because there was insufficient evidence to support the submission of such issue; and (3) the jury’s answer to Issue No. 15 is against the great weight and preponderance of the evidence. Appellees urge by a cross-point that this Court should award them reasonable attorneys’ fees for their attorneys’ services on this appeal.

Appellees assert that appellant’s first two points of error are waived in that appellant’s objections to the charge of the court were not properly preserved for appellate review. It is apparent from the statement of facts that the objections were timely dictated to the court reporter in the presence of the trial court and opposing counsel. However, these objections were not “subsequently transcribed and the court’s ruling and official signature endorsed thereon and filed with the clerk in time to be included in the transcript” as required by Rule 272, Tex.R.Civ.P. (Supp. 1975). Since appellant did not comply with this mandatory procedure, its dictated objections were waived and cannot be considered on appeal. Barber v. Corpus Christi Bank & Trust, 506 S.W.2d 254 (Tex.Civ.App.—Corpus Christi 1974, no writ); Hogg v. Washington National Insurance Company, 503 S.W.2d 325 (Tex.Civ.App.—Tyler 1973, no writ); Charter Oak Fire Insurance Company v. Perez, 446 S.W.2d 580 (Tex.Civ.App.—Houston [1st Dist.] 1969, writ ref’d n. r. e.); Mergele v. Houston, 436 S.W.2d 951 (Tex.Civ.App.—San Antonio 1968, writ ref’d n. r. e.). See also Missouri Pacific Railroad Company v. Cross, 501 S.W.2d 868 (Tex.1973). We, therefore, overrule appellant’s first two points of error without consideration of their merits.

Appellant urges by its third point of error that the jury’s answer to Issue No. 15 is against the great weight and preponderance of the evidence. Appellees assert, at the outset, that such point is immaterial in that an affirmative finding to this question would not have excused appellant’s acts, words, or conduct in violation of the debt collection act.

Article 5069-11.08, Tex.Rev.Civ.Stat. Ann. (Supp.1975), provides:

“No person shall be guilty of a violation of this Act if the action complained of resulted from a bona fide error notwithstanding the use of reasonable procedures adopted to avoid such error.”

The issue as submitted made no mention of “reasonable procedures adopted to avoid such error.” Appellant contends that the statute does not require a showing that it had adopted reasonable procedures to avoid such error. We disagree. The only meaningful construction of the statute requires that reasonable procedures be adopted to avoid such error before a bona fide error will be excused.

In any event, we cannot say from an examination of the entire record that the negative jury finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. The debt sought to be collected by appellant from appellees was a debt in the amount of $257 owed by John Gonzales to Sul Ross State University. The evidence is undisputed that appellees had no responsibility for this debt or even any prior knowledge of it. Appellant’s San Antonio office relied on a computer print-out furnished it by appellant’s Dallas office and made no attempt to verify the responsibility of appellees for this third party debt before sending a series of high pressure collection letters. Appellant wholly failed to offer any explanation as to why the Dallas office erroneously concluded that appellees were liable for this debt. Therefore, it cannot be said that the jury’s failure to find the violations were the result of a bona fide error is factually insufficient. Appellant’s third point of error is overruled.

Appellees seek by a cross-point to recover reasonable attorneys’ fees for the services performed by their attorneys in connection with this appeal. Article 5069-11.10, Tex.Rev.Civ.Stat.Ann. (Supp.1975), authorizes an award of attorneys’ fees, “reasonable in relation to the amount of work expended and costs,” to a person who successfully maintains an action for actual damages. This would authorize a recovery of reasonable attorneys’ fees for all work expended, including that on appeal, if such should be necessary. See International Security Life Insurance Company v. Spray, 468 S.W.2d 347 (Tex.1971).

Here the jury issue relating to attorneys’ fees was limited to the work expended for preparation and trial of the case and was submitted without objection by appel-lees. Furthermore, there was no request for an issue inquiring as to reasonable attorneys’ fees for services performed in handling the appeal. Therefore, appellees’ request for such fees, made for the first time in their reply brief, comes too late and is denied.

The judgment of the trial court is affirmed in all respects.

      .The jury found substantially as follows:
      1. WE DO NOT find that appellant threatened that the non-payment of the alleged debt would result in the seizure and sale of appellees’ real and personal property without proper court proceedings.
      2. WE DO find that appellant used profane language, and other language intended to unreasonably abuse the appellees.
      3. WE DO find that appellant misrepresented to the appellees the character, extent, or amount of a debt against said appel-lees.
      4. WE DO find that the appellant represented that the debt in question might be increased by the addition of attorneys’ fees, court costs and interest when there is no written contract authorizing such increase.
      5. WE DO NOT find that appellant used and directed written communications to the appellees which purported to be from an attorney when in fact they were not from an attorney.
      6. WE DO find that the appellant represented to the appellees that the debt was being collected by an attorney, when in fact, it was not.
      7. WE DO find that the appellant falsely accused the appellees with fraud or other crimes.
      8. WE DO find that appellant has threatened to file charges, complaints or criminal actions against the appellees.
      9. WE DO NOT find that the appellant threatened that the non-payment of the alleged debt would result in seizure of funds from appellees’ bank account without proper court proceedings.
      10. WE DO find that one or more of the acts, words, or conduct inquired about above was a producing cause of any injury to Mrs. Gonzales.
      11. and 12. (Damage issues which are not material to judgment)
      13. The sum of $3,500 would fairly and reasonably compensate Mrs. Gonzales for her injuries resulting from the acts, words, or conduct of appellant.
      14. The sum of $2,925 should be allowed to appellees for attorneys’ fees, reasonable in relation to the work expended for the preparation and trial of this case.
      15. NONE of the acts, words, or conduct, answered affirmatively in the above questions, was the result of a bona fide error on the part of appellant.
      16. (Conditionally submitted and unanswered since “none” were found.)


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    COPELAND WELL SERVICE, INC., Appellant, v. SHELL OIL COMPANY, Appellee.
    No. 849.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 25, 1975.
    Rehearing Denied Oct. 23, 1975.

      Forrest G. Braselton, Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, for appellant.
    Michael A. Hatched, Ramey, Flock, Hutchins, Grainger & Jeffus, Tyler, for ap-pellee.
   MOORE, Justice.

Shell Oil Company, appellee, instituted suit against Copeland Well Service, Inc., appellant, seeking recoupment under the indemnity provisions of an oil well work-over contract. Shell Oil Company employed Copeland Well Service, Inc., hereinafter called Copeland, to re-work a well known as the J. B. Parker Well No. 9R situated in Anderson County. While performing the work Homer Johnson, an employee of Copeland, was electrocuted. Thereafter his mother, Velma P. Hill, brought a wrongful death action against Shell Oil Company in the Third Judicial District Court of Anderson County, Texas, to recover damages for her son’s death. Shell called on Copeland to defend the suit under the provisions of the indemnity agreement but Copeland refused to do so. Shell defended the suit at its own expense and finally settled the suit for the sum of $8,000.00. Shell brought the present suit seeking reimbursement of the $8,000.00 paid in settlement of the Hill suit plus attorney’s fees in defending the suit and other expenses totaling the sum of $23,-575.88. Copeland answered with a general denial and specially denied liability on the indemnity agreement, alleging that Shell’s negligence was the sole cause of Johnson’s death. After a trial before the court, without the aid of a jury, judgment was rendered in favor of Shell for the sum of $23,575.88. From this judgment Copeland prosecuted this appeal.

We affirm.

At the request of Copeland, the trial court filed findings of fact and conclusions of law, finding, among other things, as follows: (1) the agreement of indemnity executed by Copeland in favor of Shell on February 24, 1964, provided: “* * * Contractor shall indemnify Shell and hold it harmless from and against all claims of and liability to third parties (including, without limitation, all employees of Shell or contractor and all sub-contractors and their employees) for injury to or death of persons or loss of or damage to property arising out of or in connection with the performance of this contract, except where such injury, death, loss or damage has resulted from the negligence of Shell without negligence or fault on the part of contractor or any subcontractor. Contractor shall defend all suits brought upon such claims and pay all costs and expenses incidental thereto, but Shell shall have the right, at its option, to participate in the defense of any such suit, without relieving contractor of any obligation hereunder.” (2) prior to April 16,1965, and pursuant to the work-over contract, Shell requested Copeland to perform a work-over of the J. B. Parker Well No. 9R which work including pulling and replacing the pipe in the well, for which work Copeland was solely responsible, (8) on April 16, 1965, after Copeland’s employees had pulled the pipe out of the well, Copeland dispatched three employees, including the deceased Homer Johnson, to replace the pipe in the well, (4) on said date Raymond Hogan, an employee of Copeland, while operating the controls of a rig and winch line which was used to lift the drill pipe so as to replace it in the well, brought a strand of the pipe into contact with, or in close proximity to, an electrical power line which passed over the area where the pipe was being lifted from the ground and being replaced in the well, (5) by reason of the contact of the piece of drill pipe with the electric line, Homer Johnson was electrocuted, (6) the electric power line was open and obvious and the supervisory personnel of Copeland knew and appreciated the danger posed by the line. On several prior occasions Shell’s representatives had warned Copeland’s supervisors of the danger of the line, who, in turn, advised Hogan of the danger. Hogan had been instructed to move the drill pipe under the line by hand so that it would not come in contact or close proximity to the power line. In raising the pipe with the rig and winch and bringing it into contact with the line, Raymond Hogan was negligent, and his negligence was the sole proximate cause of Johnson’s death, (7) no agent, servant or employee of Shell committed any act of negligence which contributed to cause the death of Johnson, (8) thereafter a suit for damages was instituted against Shell and Copeland by Velma P. Hill, the mother of Johnson, (9) Shell tendered defense of the suit to Copeland under the provisions of the indemnity contract but Copeland refused to defend the suit, and (10) Shell defended the suit at its own expense and ultimately settled the suit for $8,000.00 and in so doing incurred attorney’s fees in the sum of $10,085.27 and other expenses in the amount of $265.09 totaling the sum of $18,350.36. In the conclusions of law the trial court, among other things, concluded that the $18,350.36 in damages sought by Shell in the present suit were liquidated damages and that Shell was therefore entitled to interest at the rate of 6% per annum on said liquidated sum from the date of the settlement of the previous suit on March 16, 1970.

By the first and second points of error, Copeland contends that the trial court erred in permitting Shell to recover on the basis of the indemnity agreement. In this connection, Copeland takes the position that Johnson’s death was brought about by the negligence of Shell. Based on this premise, Copeland relies on the well-settled legal principle set out in Fireman’s Fund Insurance Company v. Commercial Standard Insurance Company, 490 S.W.2d 818 (Tex.1972), that a contract of indemnity will not afford protection to an indemnitee against the consequences of his own negligent act unless the contract clearly expresses such obligation in clear and unequivocal terms. Copeland argues that the obligation assumed by it in the agreement is not clear and unequivocal; thus, the agreement is void for the reasons set forth in Fireman’s Fund Insurance Company v. Commercial Standard Insurance Company, supra.

Obviously, the foregoing principle of law constitutes a defense only in those situations where it has been established that the indemnitee’s negligence caused the casualty made the basis of the indemnitee’s suit on the contract. Thus, in order to determine whether Copeland may avail itself of the defense in the present suit, it becomes necessary to first determine whether Shell was guilty of any negligent act which was the sole or proximate cause of the death of Homer Johnson.

Contrary to the trial court’s findings, Copeland contends by points four through six that the court erred in finding Shell breached no duty owed Johnson or Copeland and in further finding that Shell’s employees were not guilty of any act of negligence solely or proximately causing Johnson’s death. Since the defense relied upon by Copeland in its first two points depends on whether Shell was guilty of negligence, we will first direct our attention to points four through six and then return to points one and two.

The issue of negligence having been pleaded by Copeland as a defense to Shell’s suit, such issue became a controverted issue of fact. Proof of negligence was therefore cast on Copeland who had the burden of securing a favorable finding upon such issue.

As stated, the trial court resolved the issue of negligence by a negative finding, thereby exonerating Shell of liability. The trial court’s negative finding on the issue of negligence, when properly interpreted, amounts to nothing more than a finding that Copeland failed to discharge its burden of establishing negligence on the part of Shell by a preponderance of the evidence. It does not mean that Shell was not guilty of negligence, but only that the trial court was not persuaded that it was established by a preponderance of the evidence. Where the trier of the fact returns a negative finding to an issue upon which the proponent has the burden of proof, the negative finding need not be supported by affirmative evidence. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966); Smith v. Safeway Stores, Inc., 433 S.W.2d 217, 218 & 219 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.). Under these circumstances, the party having the burden of proof is placed in the position of having to contend that the evidence establishes the issue as a matter of law. See Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361, 364 (1960).

Appellant has no point of error contending that Shell’s negligence was established as a matter of law, nor does appellant argue that negligence on the part of Shell was conclusively established. As we construe appellant’s points four through six, appellant contends that there is no evidence to support the trial court’s negative finding on the issue of negligence. If this is appellant’s contention, then such- points contain no complaint subject to review. If, on the other hand such points could be construed as a contention that Shell’s negligence was conclusively established, the points are not well taken because the evidence on the issue of Shell’s negligence is conflicting. In this circumstance it cannot be said that negligence was established as a matter of law. Appellant’s points four through six are overruled.

Having failed to obtain a finding or to conclusively establish that Shell was negligent, appellant is in no position to contend that the indemnity agreement is unenforceable on the grounds that the same did not unequivocally state that the indemnitee (Shell) was to be protected from its own negligence. In the absence of a finding of negligence on the part of Shell, the validity of the indemnity agreement never came into play. Consequently, we do not reach the question of whether the indemnity agreement was sufficient to protect Shell against its own negligence. Appellant’s first and second points are overruled.

By its seventh point Copeland complains of the action of the trial court in awarding Shell interest on the Hill v. Shell judgment, together with interest on Shell’s attorney’s fees and other expenses incurred by Shell in settling the wrongful death action.

The Hill v. Shell judgment was rendered on March 16, 1970. In rendering judgment against Copeland in the present suit, the trial court concluded that the amount of Shell’s damages was liquidated and definitely ascertainable as of March 16, 1970, the date of the Hill judgment and awarded Shell pre-judgment interest thereon.

It is well settled that where, under the provisions of the indemnity contract, the indemnitee makes advances in reference to the matter indemnified, he is entitled to interest on such advances from the time they are made. Parsons v. Parsons, 284 S.W. 933, 935 (Tex.Comm’n App.1926, jdgmt. adopted); 42 C.J.S. Indemnity § 13 at 585 (1944). This situation prevails here and, therefore, Shell was entitled to pre-judgment interest. Appellant’s seventh point is overruled.

By the eighth and final point Copeland contends that the trial court erred in rendering judgment on the basis of the indemnity agreement. Copeland argues that the agreement was void for want of mutuality in that there was unequal bargaining power between Copeland and Shell. We overrule the contention.

Lack of mutuality and duress are affirmative defenses which must be specifically pled and proved to be available as a defense. Tex.R.Civ.P. 94; Fireman’s Fund Insurance Company v. Abilene Livestock Auction Company, 391 S.W.2d 147 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.). The record is devoid of any pleadings or proof to support such defenses. Having failed to plead or prove such defenses, appellant waived the same. It is well settled that an affirmative defense cannot be raised for the first time on appeal. T.I.M.E., Inc. v. Maryland Casualty Company, 157 Tex. 121, 300 S.W.2d 68 (1957).

The judgment of the trial court is affirmed.


author: DIES, Chief Justice.

text:
    Jimmy D. HARRIS, Appellant, v. Milton T. POTTS et al., Appellees.
    No. 7727.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 25, 1975.
    Rehearing Denied Oct. 16, 1975.

      Pope & Waits, Houston, for appellant.
    W. C. McClain, Conroe, for appellees.
   DIES, Chief Justice.

Appellant, Jimmy D. Harris, sued Milton T. Potts, Armand C. Ellzey and Ruth Ell-zey, appellees, to recover 22.2 percent interest in 33.75 acres of land in San Jacinto County. He contends that on or about May 13, 1962, appellees orally agreed to sell him the undivided interest. At the conclusions of plaintiff’s (appellant’s) evidence, the court granted appellees an instructed verdict, from which Harris perfects this appeal.

In reviewing an instructed verdict, we view all of the evidence in the light most favorable to appellant and give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor. Frazier v. Hanlon Gasoline Co., 29 S.W.2d 461 (Tex.Civ.App., Eastland 1930, writ ref’d).

Our Supreme Court in Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921), emphatically stated that for an oral contract to purchase realty to be enforceable three things must occur: (1) Payment of the consideration, (2) possession by the vendee, (3) the making by the vendee of valuable and permanent improvements upon the land.

While disputed, appellant’s testimony was that he fully paid appellees for the interest. The land being near Lake Livingston, it was to be divided into some 250 lots. Appellant says he helped erect some street signs, replace survey markers and whitewashed a few trees. He also signed and helped repay a bank note which apparently financed bulldozing streets and installing culverts. If we consider these as sufficient acts on his part of “permanent improvements” we are nevertheless unable to find any evidence that he ever took “possession” of the land. He argues—and with some appeal—that he took as much “possession” as could be expected in a situation such as this. But the answer to this contention is quite explicit in Hooks v. Bridgewater, supra at 1117.

“For such contracts to be enforcible in this State, they must come fairly within the rule. If there has been no surrender of the possession of the land, the contract is not within the rule and is incapable of enforcement. It is no answer to say that the rule does not fit the circumstances of the particular contract. That is no reason for making another rule. The rules of law are not thus to be disregarded or evaded. The rule is necessarily a general one and intended for general application. If a particular case does not fall within it, the statute, itself, governs and condemns the contract on which the case rests.”

The judgement of the trial court is affirmed.


author: STEPHENSON, Justice. KEITH, Justice

text:
    MATHEWS CONSTRUCTION COMPANY, INC., Appellant, v. JASPER HOUSING CONSTRUCTION CO. et al., Appellees.
    No. 7658.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 25, 1975.
    Rehearing Denied Oct. 16, 1975.

      Addington, McGraw & Lawlis, Jasper, for appellant.
    Seale, Stover & Coffield, Adams & Adams, Jasper, for appellees.
   STEPHENSON, Justice.

Mathews Construction Company, Inc., brought this action against Jasper Housing Construction Company (Jasper Housing), New Homes, Inc. (New Homes) and Fireman’s Insurance Company (Fireman’s). The pleadings sought recovery for labor and materials furnished, interest on bank loans, and attorneys’ fees. This appeal is from an order granting motions for summary judgment filed by all three defendants.

The summary judgment proof shows plaintiff was paid $11,517.50 by Jasper Housing after this suit was filed, leaving the interest and attorneys’ fees as the only money sought to be recovered.

In the judgment granting such motions, the trial court stated that plaintiff’s claim for interest paid or owed to First National Bank of Jasper, Texas, and attorneys’ fees in connection with such interest claim, is based upon an oral promise and, therefore, barred by the Statute of Frauds and Tex. Bus. & Comm.Code Ann. § 26.01 (1968). A part of that section reads as follows:

“(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it is
“(1) in writing; and
* * * £ * *
“(b) Subsection (a) of this section applies to
******
“(2) a promise by one person to answer for the debt, default, or miscarriage of another person; ”

In passing upon the points of error raised in this case, we are well aware of the rule stated in a series of cases in which our Supreme Court has held that the burden is upon the movant to establish, as a matter of law, that there is no genuine issue of fact. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). In the case before us, if the trial court was in error in holding the oral agreement unenforceable because of the Statute of Frauds, then there was a genuine issue of fact as to whether that oral agreement was made.

Plaintiff’s allegations show it was a subcontractor to do the dirt work on a project in which Jasper Housing was the prime contractor. The agreed price for such subcontract was $13,217.50. Plaintiff’s work was completed, but the money was not paid. Plaintiff assigned its lien to the First National Bank of Jasper, Texas, and executed two notes in the total amount of $11,900.75. Jasper Housing guaranteed the payment of such notes, and did in fact pay the Bank $158.61 interest.

Plaintiff attached affidavits to its reply to the motion for summary judgment showing the following: that the work was completed under the subcontract, but the money was not paid. Richard Sarver, president of Jasper Housing, was contacted, and he suggested that plaintiff make a loan from the Bank for sixty days and that Jasper Housing would pay the interest. That the loan was made and Jasper Housing paid $158.61 as interest on such loan.

This point of error is controlled by the law expressed in Gulf Liquid Fertilizer Co. v. Titus, 163 Tex. 260, 354 S.W.2d 378 (1962). The oral agreement made by Jasper Housing to pay the interest upon the notes given by plaintiff to the bank is not barred by the Statute of Frauds. That case tells us we must apply three tests in order to determine that question. First:

“Was there a promise of primary responsibility to pay, or was there a promise of suretyship?”

According to the summary judgment proof, this was not a promise made by Jasper Housing to the Bank to guarantee the payment of a debt owed by plaintiff to the Bank. This was a promise by Jasper Housing to plaintiff, to pay the interest on a loan by plaintiff from the Bank. Second:

“Was there sufficient consideration to support the promise to pay?”

The summary judgment proof was that the money, due plaintiff by Jasper Housing, was past due; and in order to secure more time to make such payment, Jasper Housing agreed to pay the interest on the loan. Third:

“Was the consideration such as to remove the promise from the Statute of Frauds?”

In making the meaning of this third question clear, the Supreme Court at Page 386 quotes from 2 Corbin, Contracts (1950 Ed.) 284 § 368, partially as follows:

“ ‘In order to take his promise out of the statute, he [the promisor] must be bargaining for a consideration that is beneficial to himself and that constitutes his primary object of desire.’ ” (Emphasis omitted.)

As stated above Jasper Housing agreed to pay the interest as a benefit to itself, in order to defer payment of its obligation. All these questions must be answered in the affirmative. It was error for the trial court to hold the oral agreement made by Jasper Housing to be barred by the Statute of Frauds.

Plaintiff argues that it is entitled to recover attorneys’ fees in connection with its claim of interest. The law is well settled that attorneys’ fees are not recoverable either in an action in tort or in a suit upon a contract unless provided by Statute or by contract between the parties. New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914 (Tex.1967). There is no summary judgment proof that a contract provides for attorneys’ fees, and Tex.Rev.Civ.Stat.Ann. art. 2226 makes no provision for collections of attorneys’ fees in connection with a suit for interest.

Plaintiff has a point of error that it is entitled to collect attorneys’ fees because its pleadings show a cause of action based upon a sworn account. The pleadings and summary judgment proof in the case before us demonstrate that the suit is not founded upon a sworn account within the meaning of art. 2226. Plaintiff’s account is not one in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other. Tenneco Oil Company v. Padre Drilling Company, 453 S.E.2d 814, 818 (Tex.1970).

Plaintiff contends that it is entitled to recover its attorneys’ fees under Tex.Rev. Civ.Stat.Ann. art. 2226, because this is an action for services rendered, labor done, material furnished. Art. 2226 reads in part as follows:

“Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished, . . . may present the same to such persons or corporation . . . ; and if, at the expiration of 30 days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment . . . , he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees. . . . ” Tex.Rev.Civ.Stat.Ann. art. 2226 (Supp. 1971) (Emphasis supplied.)

At the outset we note that the 1971 amendment deleted the word “personal” from the phrase “for personal services rendered” and added the phrase “corporation, partnership, or other legal entity” to those “persons” who were entitled to collect attorneys’ fees under the statute in appropriate circumstances.

The jurisprudence of this State precludes us from concluding that the omission of the term “personal” from revised art. 2226 is to be of no effect. It is so well established as to be almost unnecessary for citation that courts, having and possessing no legislative powers, cannot enlarge or alter the plain meaning of statutory language. Goldman v. Torres, 161 Tex. 437, 341 S.W.2d 154 (1960). Further, the wording in a statute is to be given its literal interpretation when that wording is clear and unambiguous and any defects or deficiencies must be supplied by the Legislature, not the courts. Board of Insurance Com’rs. v. Guardian Life Ins. Co., 142 Tex. 630, 180 S.W.2d 906, 909 (1944). In applying the above principles to our case, it simply cannot be assumed that the Legislature’s deletion of the term “personal” from the amendment to art. 2226 was inadvertent and of no effect.

Our Supreme Court has noted the distinction between the terms “services” and “personal services” within the context of art. 2226. In Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895-896 (Tex.1962) Chief Justice Calvert stated that:

“ ‘In ordinary usage the term “services” has a rather broad and general meaning. It includes generally any act performed for the benefit of another under some arrangement or agreement whereby such act was to have been performed. The general definition of “service” as given in Webster’s New International Dictionary is “performance of labor for the benefit of another”; “act of instance of helping, or benefiting”. The term “personal service” indicates that the “act” done for the benefit of another is done personally by a particular individual.’ ” Id., at 895 [quoting from Creameries of America v. Industrial Commission, 98 Utah 571, 102 P.2d 300, 304 (1940)].
⅝ * * * ⅜ ⅜
“ ‘ “Services” and “personal services” are not definitely coextensive. Within the meaning of statutes such as that now under consideration and of exemption statutes, “services” may be rendered though the actual labor be performed by one’s employees and by means of his machinery or other equipment, but “personal services” are those performed by the individual himself.’ ” Id., at 895-896, [quoting from Levitt v. Faber, 20 Cal.App. Supp.2d 758, 65 P.2d 498, 500 (1937)] (Emphasis ours)

We see no reason to refuse the application of the definitions which have been approved by our Supreme Court, and we hereby adopt them. As was stated in Clark Advertising Agency, Inc. v. Tice, 490 F.2d 834 (5th Cir. 1974):

“There is no doubt that, in changing ‘personal services’ to ‘services,’ the legislature was broadening the coverage of the statute. Thus, despite the oft-repeated assertion that the statute is penal and should be construed narrowly, Van Zandt v. Fort Worth Press, supra; W. G. Tufts and Son v. Herider Farms, Inc., Tex.Civ.App.1972, 485 S.W.2d 300, we hold that it is broad enough to cover actions on contracts for the sort of advertising and promotional services provided here [whereby the agency was to supply advertising services for a horse race], even though many of those services were not provided by Clark personally but rather by the various advertising and broadcast media retained by him. These services were certainly actions that furthered the end or purpose of promoting the West Palm Beach race, benefiting the A.H.R.A. They clearly fall within the broad and general definition of ‘services’ as propounded by the Texas Supreme Court.” Id. at 838.
Ht sfc ⅜ ⅜ ⅜ ⅜
“The amendment apparently changes the result of Tenneco Oil Co. v. Padre Drilling Co. We think the Texas legislature, in amending the statute to delete the requirement that the services need be ‘personal,’ was adopting the broad meaning of ‘services’ first spelled out by the Texas Supreme Court in Van Zandt v. Fort Worth Press.” Id. at 837.

See also Texcalco, Inc. v. McMillan, 524 S.W.2d 405 (Tex.Civ.App., Eastland 1975, no writ) and Caston v. Texas Power & Light Co., 501 S.W.2d 472 (Tex.Civ.App., Texarkana 1973, no writ), and Maxwell Lumber Co. v. Merle Greer Company, Inc., 501 S.W.2d 454 (Tex.Civ.App., Tyler 1973, no writ).

We hold that when plaintiff performed the ground preparation work for the defendant, it was ostensibly performing a “service” as that term is now defined above and that as such, it should have been allowed to present evidence to support that contention to the trier of fact. It was error for the trial court to have granted defendant’s motion for summary judgment on the issue of attorneys’ fees. Finding that plaintiff should have been allowed to present evidence on the issue of “services rendered”, we make no ruling on the question of whether plaintiff’s claim for attorneys’ fees also comes under the definition of “labor done” or “materials furnished.”

With respect to the summary judgment granted to Fireman’s, plaintiff has points of error asserting that a fact question was raised because it properly perfected its mechanics’ and materialmen’s lien and that it should obtain the funds which were assured under the payment bond written by Fireman’s for the other defendants. Fireman’s counters with the claim that the plaintiff must fail in its attempt to collect under the payment bond because it did not make a valid claim under the bond until its amended petition, which was not within the fourteen months limitation period in which to file a claim. Tex.Rev.Civ.Stat.Ann. § 6 of art. 5472d (Supp.1961) provides that the claim must be made within fourteen months “from the date of his compliance with paragraph 4 of this Article.” Paragraph 4 refers to the manner of perfection of liens under the Hardeman Act and allows either compliance with art. 5453 or the manner specified with the paragraph itself. There is no issue in this case that plaintiff attempted compliance within the framework of art. 5453 rather than the alternative method specified in paragraph 4. As to whether the plaintiff fully complied with art. 5453(2)b(2) (Supp.1961) and its notice provisions, Fireman’s does not dispute plaintiff’s claim that it “perfected” its lien when it sent notices to the owner on February 25, 1972. The summary judgment proof supports plaintiff’s contention.

Plaintiff’s original petition was filed on March 27, 1973; the amended petition was filed on July 8,1974. The trial court found that the plaintiff had made no cláim on the payment bond prior to filing its first amended petition which was more than fourteen months after the proper notices were given. Fireman’s was made a party to this suit in the original petition; it was in its original petition that the plaintiff asserted that the bond in question was defective. The amended petition apparently accepted the bond and a specific claim was then made against the bond itself which was more than fourteen months after the “perfection” date.

Whether limitations should apply to amended pleadings is governed by art. 5539b and the cases construing it, e. g., Leonard v. Texaco, Inc., 422 S.W.2d 160, 163 (Tex.1967), where Justice Norvell stated that: “[t]he test is whether the cause of action alleged in the amended petition is ‘wholly based upon and grows out of a new, distinct or different transaction and occurrence’.” In quoting from Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816 (1950), Justice Norvell reiterated the court’s position that “article 5539b expressly provides that an amendment to a pleading shall not be subject to a plea of limitation where the amendment is not wholly based on or grows out of a new, distinct or different transaction or occurrence.” (422 S.W.2d at 163) In applying this test the court noted that whether the amended petition stated a new cause of action was immaterial.

We do not have the situation which was present in Sherwin-Williams Co. v. American Indemnity Co., 504 S.W.2d 400 (Tex.1973). There the plaintiff filed its original pleading in a statutory lien suit against the owner, original contractor, and subcontractor. The surety on the bond was not named until the amended original petition was filed, which was after the fourteen months period established in art. 5472d(6), but was before the two years limitation period called for in the bond itself. At 504 S.W.2d 401 the court noted that the surety’s joinder was untimely if the Hardeman Act limitations controlled.

In the case at bar, Fireman’s was named and joined in the suit when the original petition was filed. The gravamen of the complaint was that plaintiff had perfected its claim under mechanics’ and materialmen’s lien statutes and was thus entitled to recover from the parties named as defendants jointly and severally. The complaint in the amended petition was not based on a “new, distinct or different transaction or occurrence”. See also John H. Pelt Co. v. American Cas. Co. of Reading, Pa., 513 S.W.2d 128 (Tex.Civ.App., Dallas 1974, writ ref’d n. r. e.).

Plaintiff’s petition sufficiently invoked its claim as to Fireman’s within the fourteen months period pursuant to art. 5472d(6). It was error for the trial court to have granted the summary judgment for Fireman’s.

As mentioned above, in order for plaintiff to succeed in its claim it must have complied with the provisions of the Hardeman Act. One of the requirements in perfecting a lien is the filing of an affidavit under art. 5453(1). It is the Fireman’s contention that the lien affidavit filed by plaintiff is fatally defective because the lien affidavit makes only a claim for “materials furnished” while the two contracts, which are attached to the affidavit as exhibits, call for both labor to be performed and materials to be furnished. It claims that the failure to delineate in the affidavit the materials furnished and the cost of work performed renders the said affidavit insufficient under the applicable provisions of the Hardeman Act, i. e., art. 5455.

Art. 5455 (Supp.1961) requires, in pertinent part, that a lien affidavit shall contain:

c. “A general statement of the kind of work done or materials furnished by him, or both. It shall not be necessary to set forth the individual items or work done or materials furnished or specifically fabricated. Any abbreviations or symbols customary in the trade may be used.” (Emphasis supplied.)

The attached contracts contain statements that the plaintiff was to haul various types of sand, gravel and hot mix, that it was to grade the streets and parking area in preparation for paving and that the respective price on the two contracts for the labor performed and the materials furnished was $2,000 and $11,217.50.

Prior to the time that the 1961 amendment to art. 5455 was enacted (which is quoted above) it was necessary for a detailed summarization to be made in the affidavit of the materials furnished and the work done. Woodward, The Acquisition of Mechanics’ and Materialmen’s Liens on Non-Homestead Property, 14 Sw.LJ. 469, 482 (1960). Since that time, specific particularization is no longer required and the statute now makes it clear that only “general statements” are all that is needed. Art. 5455(c); Youngblood, Mechanics’ and Materialmen’s Liens in Texas, 26 Sw.L.J. 665, 677 (1972). Substantial compliance is, of course, required when considering the mechanics’ and materialmen’s lien statutes. Crockett v. Sampson, 439 S.W.2d 355, 360 (Tex.Civ.App., Austin 1969, no writ). As was said in Trinity Universal Insurance Company v. Palmer, 412 S.W.2d 691, 694 (Tex.Civ.App., San Antonio 1967, writ ref’d n. r. e.):

“[I]t had been held [prior to 1961] that the notice to the owner, as well as the lien affidavit filed by the claimant with the county clerk, must itemize the value of articles furnished and labor done, and that a statement of the total price in a lump sum was not sufficient. [Citation omitted.] The language on which . [appellee] relies was plainly intended to eliminate the need for such particularization. Paragraph c of Article 5455 eliminates the need for such itemization in the affidavit.”

The information contained in the contracts was sufficiently detailed so as to enumerate the claims that plaintiff was alleging under the lien statutes. It was a “general statement” — and no more is required under the present statutes. These points of error are sustained.

Reversed and remanded.

KEITH, Justice

(concurring).

I concur only in the reversal and remand of the cause.


author: KEITH, Justice.

text:
    Claud PENNY et al., Appellants, v. Horace Wendell KELLEY et ux., Appellees.
    No. 7728.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 25, 1975.
    J. C. Zbranek, L. J. Krueger, Liberty, for appellants.
    Wayne Carter, Conroe, for appellees.
   KEITH, Justice.

Plaintiffs below appeal from an adverse judgment rendered in a suit to remove cloud from the title to 33⅛ acres of land in Liberty County. The sole issue involved was the validity of the foreclosure of a deed of trust lien on the land. We condense, as much as possible, the voluminous record presented.

Defendants sold the property to one La-key in 1965 for a total consideration of $15,000, one-third of which was paid in cash with the balance being evidenced by a vendor’s lien note payable in monthly installments and additionally secured by a deed of trust on the property. We will speak of this as the Kelley note and lien. Thereafter, in 1967, Lakey conveyed the property to one Lewis with the purchaser assuming the balance of the Kelley note then in the principal sum of $8,970.65 and paying an additional cash consideration.

Lewis conveyed the property, in 1969, to the plaintiffs receiving $5,000 in cash, the plaintiffs’ assumption of the outstanding balance on the Kelley Note ($6,936.50), and a second lien note in the amount of $8,563.50. Plaintiffs did not pay the installments due upon the Kelley note during each of the first four consecutive months following their purchase of the property from Lewis, their excuse being that they did not know where the note was payable.

In September, 1969, one of the plaintiffs talked with Kelley regarding the note and lien and was referred to his attorney, J. R. Beck in Beaumont. Mancil, the plaintiff handling the negotiations with Beck agreed with the attorney that upon presentation of the proper assignments, notes, etc., accompanied by a draft drawn upon the Farmers State Bank of Cleveland, that the Kelley note (along with Lewis’ second lien note) would be paid by the Bank. Beck sent the note and an assignment of the note and lien to the Bank, but the Bank’s attorney declined to approve the transaction because no indorsement had been made upon the note itself, there being a simple assignment thereof among the documents accompanying the draft.

Mancil and' Bank’s attorneys both talked with Beck about the indorsement requirement, and the papers were returned to Beck. According to plaintiffs’ version of the matter, they were not told of any impending foreclosure proceedings under the Kelley deed of trust. Without any further communication with either the Bank or plaintiff (or the second lien holder), Beck’s law partner, who was trustee in the deed of trust, posted notices of Trustee’s Sale for the first Tuesday in October, conducted the sale, and executed a trustee’s deed to Kelley. This suit was filed immediately and shortly thereafter Lewis intervened and aligned himself with plaintiffs who recognized the validity of Lewis’ indebtedness. Lewis did not, however, seek a personal judgment upon his note, his efforts being directed at protection of his second lien from extinguishment by the foreclosure of the Kelley.first lien.

There is little dispute over the operative facts of the case. It seems clear that plaintiffs had a valid oral commitment from the Bank to advance the funds with which to pay off both liens so that they could be consolidated into one lien in favor of the Bank; that Beck, as agent for Kelley, refused to require his clients to indorse the note on the instrument itself; that the foreclosure proceedings were regular unless defeated by the allegations and proof in plaintiffs’ suit.

In answer to the several special issues, the jury found: (1) That prior to October 7, 1969, plaintiffs had procured sufficient funds to pay off the balance of the Kelley note. (2) That on October 6, 1969 the Bank’s attorney told defendant Kelley that such money was available upon presentation of the Kelley note “properly assigned to the Farmers State Bank. (3) That J. R. Beck was representing defendants in the collection of the note. (4) That plaintiffs offered full payment to Beck upon presentation of the Kelley note properly assigned to the Bank. (5) If the Kelley note had been properly assigned on the note by the Kelleys and presented to the Bank on or before October 7, 1969, it would have been paid in full.

The jury answered “[w]e do not” to Special Issue No. 6 inquiring if plaintiffs made to defendants “an unconditional tender of sufficient funds to pay off the balance of the Kelley note.” We quote the accompanying instruction defining “tender” in the margin. The court overruled plaintiffs’ motion for judgment on the verdict after disregarding the jury’s non-finding to No. 6 and entered a judgment for defendants quieting their title and possession in and to the property.

We first dispose of the tender question under the undisputed facts. Kelley, through his own acts and those taken under the direction of Beck, had agreed to payment from the Bank upon presentation of the necessary documents to enable the Bank to succeed to the full rights of Kelley in and to the ownership of the note and lien then held by Kelley. In Cockrum v. Underwood, 301 S.W.2d 953, 954 (Tex.Civ.App.—Beaumont 1957, no writ), the rule was laid down in this language:

“When a tender is refused for reasons other than the medium tendered, one may not later, as in the case at bar, complain of the medium of tender; 40 Tex.Jur. pg. 852; Gulf Pipe Line Co. v. Nearen, 135 Tex. 50, 138 S.W.2d 1065.”

See also: Littlejohn v. Johnson, 332 S.W.2d 439, 441 (Tex.Civ.App.—Waco 1969, no writ); Chancey v. Wilson, 378 S.W.2d 395, 398 (Tex.Civ.App.—Amarillo 1964, no writ); Crowe v. Fred C. Kroeger & Sons, 468 S.W.2d 507, 513 (Tex.Civ.App.—Beaumont 1971, no writ).

Indeed in Baucum v. Great American Insurance Co. of New York, 370 S.W.2d 863, 866 (Tex.1963), the Court said: “We agree with the proposition stated by the Court of Civil Appeals that when a tender is refused on other grounds one will not be heard later to complain of the medium of payment.”

Moreover plaintiff Mancil, himself a bank officer familiar with the commercial practices in the area, and a bank official in a competing bank in the area, both testified that the uniform practice was to require an indorsement upon the note itself, not simply an assignment upon a separate paper. Justice Guittard in Modern Aero Sales, Inc. v. Winzen Research, Inc., 486 S.W.2d 135 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.), has discussed in detail the question of legal tender under the rule laid down in Tex.Bus. & Comm.Code Ann. § 2.511(b) (1968), reading:

“Tender of payment is sufficient when made by any means or in any manner current in the ordinary course of business unless the seller demands payment in legal tender and gives any extension of time reasonably necessary to procure it.”

Under our undisputed record, the tender made by plaintiffs qualified as a legal tender unless defendants were excused from their obligation to indorse the note upon the instrument itself, a matter to which we now turn.

It is said [11 Am.Jur.2d, Bills & Notes, § 349 at 369 (1963)], that “[t]he word ‘in-dorsement’ — literally, ‘writing on the back,’ derived from the Latin ‘indorsa’ — is employed to designate the contract whereby the holder of a bill or note transfers to another his right to such instrument.” Tex. Bus. & Comm.Code Ann. § 3.202(b) (1968), required that “[a]n indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof.” (Emphasis supplied.)

We are of the opinion that the assignment of the Kelley note, without in-dorsement upon the instrument itself, was not in compliance with the provisions of the Code or the commercial practices governing such transaction. If defendants were to demand legal tender, they were required to indorse the note and cannot now rely upon a failure to tender money in discharge of the obligation represented by the note itself. Modern Aero, supra. Consequently, the foreclosure of the lien without giving plaintiffs a reasonable time to comply with the demands then made, was unauthorized. Id., § 2.511(b).

Although it appears to this court that the case is fully developed, we are unable to render judgment herein. Thus, we reverse the judgment of the trial court and remand the cause for the entry of judgment in accordance herewith. The trial court will take into consideration the requirements of Tex.R.Civ.P. 813 and the stipulation of the plaintiffs and defendants made upon the trial of this cause (that there was due upon defendants’ note at the time of the foreclosure, the sum of $8,353.86) in entering judgment. The tender of payment by plaintiffs invoked the provisions of Tex.Bus. & Comm.Code Ann. § 3.604(a) (1968), so as to relieve plaintiff of liability subsequent to October 6, 1969, to pay interest, cost and attorney’s fees.

Should plaintiffs, or intervenors on behalf of plaintiffs, comply with the provisions of Tex.R.Civ.P. 813 by making the deposit required, the first lien of defendants will be extinguished by said judgment and the note and lien of intervenors shall, in such instance, become a first lien upon the property involved herein. The provisions of Tex. Bus. & Comm.Code Ann. § 3.604(a) shall likewise apply to the lien of intervenors.

All costs in all courts are adjudged against the defendants.

Reversed and remanded with instructions.

      . The jury was instructed “[b]y the term ‘assigned on the note by defendants’ as used in this Charge is meant the signatures of the defendants assigning plaintiffs’ exhibit P-7 [the original Kelley vendor’s lien note] without recourse on said exhibit itself.”

      . “ ‘Tender’ is defined as an unconditional offer to pay the exact amount of a debt, coupled with the act of producing the money or thing to be paid, with the willingness and ability to place it at the disposition of the person who is authorized to receive it and give the debtor acquittance. A ‘tender’ requires not merely the readiness and ability to perform or pay, but also the actual production of the thing to be delivered over and offer of it to the persons to whom the tender is to be made. In order to make a valid tender of either money or chattels, the thing to be tendered must be actually produced and offered to the party entitled thereto, a mere offer to pay being insufficient; and the tenderer must place the money or property in such a position that his control over it is relinquished for a sufficient time to enable the tenderee, if he so desires, to reduce it to possession by merely reaching out and laying hold of the money or thing; and a person is not bound to say whether or not he will accept the money or thing until it is produced.” .

      . See also: 9 Tex.Jr.2d, Bills & Notes, § 141, p. 149 (1969); Annotation, “Indorsement of Negotiable Instrument by Writing Not on Instrument Itself,” 19 A.L.R.3d 1297 (1968); W. Britton, “Transfers and Negotiations, 32 Tex.L.R. 153, 160 (1953).


text:
    Zeta N. GANDY, Appellant, v. John Cecil CULPEPPER, Jr., Appellee.
    No. 7707.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 25, 1975.

      Charles C. Smith, Cameron, for appellant.
    John B. Henderson, Jr., Cameron, for ap-pellee.
   KEITH, Justice.

This trespass to try title action involves a fifty acre tract in the J. K. McLennan Survey in Milam County. Plaintiff below brought suit and recovered judgment for title and possession in a non-jury trial. At defendant’s request, the trial court filed extensive findings of fact and conclusions of law. It is from this judgment that the defendant has perfected her appeal to this court.

Upon the trial, by competent evidence, plaintiff showed a common source of title, connected his title to such common source by a complete chain of title, and proved the superiority of his title to the record title of the defendant. Jones v. Mid-State Homes, Inc., 163 Tex. 229, 356 S.W.2d 923, 925 (1962); Best Investment Company v. Hernandez, 479 S.W.2d 759, 762 (Tex.Civ.App., Dallas, writ ref’d n.r.e.). He was entitled to judgment unless defendant could defeat such recovery upon one or more of the defenses tendered by her pleadings.

Although defendant had pleadings, and offered some evidence in support thereof, as to other defenses to the suit, the ten points of error brought forward all complain of the trial court’s findings of fact involving only the ten-year statute of limitations. Findings of fact numbers one, five, eight, and eleven are attacked by the no evidence and great weight and preponderance of the evidence points. In passing thereon, we will do so in accordance with the rules laid down in Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

The trial court having filed findings of fact and conclusions of law in this non-jury trial, the rule governing our review is that set out in 4 McDonald, Texas Civil Practice, § 16.05, p. 11 (1971 Rev.Vol.):

“Findings of fact have the same force and dignity as does a jury verdict upon special issues, and when supported by some competent evidence will not be disturbed on appeal, even though they appear to be against the preponderance of the evidence, unless they are so against the overwhelming weight of the evidence as clearly and manifestly to be wrong.”

See also, Red Arrow Freight Lines v. Howe, 480 S.W.2d 281, 285 (Tex.Civ.App., Corpus Christi, 1972, writ ref’d n.r.e.); Dorbandt v. Jones, 492 S.W.2d 601, 602 (Tex.Civ.App., Austin 1973, writ ref’d n.r.e.); Ives v. Watson, 521 S.W.2d 930, 932 (Tex.Civ.App., Beaumont 1975, writ ref’d n.r.e.); 4 Tex. Jur.2d, Rev., Part 2, Appeal & Error Civil Cases, § 783, p. 279 (1974).

Moreover, in a non-jury case, the trial court is the judge of the credibility of the witnesses and the weight to be given their testimony. Thus, we will review the record under the same standards as are used in reviewing a jury verdict. Beck v. South, 423 S.W.2d 188, 189 (Tex.Civ.App., Fort Worth 1968, writ ref’d n.r.e.).

Having reviewed the evidence carefully under the standards set out above and being of the opinion that the judgment of the trial court is free of reversible error, each of the defendant’s points of error are overruled for the reasons now to be stated.

Plaintiff’s petition contained the allegations required in an action of trespass to try title as set out in Tex.R.Civ.P. 783, including sub-section (d), “[t]hat the plaintiff was in possession of the premises or entitled to such possession.” Plaintiff alleged that he was in possession upon the date of the ouster. In his action, he was required to allege and prove only his right to present possession of the land. Stephens v. Motl, 82 Tex. 81, 18 S.W. 99, 100 (1891); City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712, 714 (1956). Plaintiff showed by competent evidence his present right of possession of the land. The trial court’s finding of fact number one [as quoted in fn. 2, supra ] may have been incorrect, as conceded by plaintiff; but, under the record which we review, no reversible error is shown. Plaintiff could recover only upon a showing of actual possession and ouster by defendant or a present right of possession. He showed the latter by competent evidence. Watkins v. Smith, 91 Tex. 589, 45 S.W. 560, 561 (1898); Reiter v. Coastal States Gas Producing Co., 382 S.W.2d 243 (Tex.1964).

Defendant accurately summarizes her position on appeal in this manner:

“The question in this law suit is whether what they [defendant and her deceased husband] did with the 50 acres, . from January, 1939 to the date this suit was filed, to wit, on October 23,1957, was an actual and visible appropriation of the 50 acres commenced and continued under a claim of right inconsistent with and hostile to the claim of another.”

This concession renders immaterial the testimony from the defendant and her witnesses as to their activities upon the land during the period 1918-1939, and we need not recount the evidence thereof.

In order to prevail under the ten-year statute of limitations defendant labored under the burden of establishing by competent evidence that she and her deceased husband had been in peaceable and adverse possession of the land, as defined in Tex.Rev.Civ.Stat. art. 5515, cultivating, using or enjoying the same for a period of ten continuous years, as ■ required under Tex. Rev.Civ.Stat. art. 5510.

In the recent case of Chapa v. Garcia, 513 S.W.2d 953, 956 (Tex.Civ.App., San Antonio 1974, writ ref’d n.r.e.), Justice Klingeman has reviewed the leading cases upon the subject, and we take this summary therefrom as stating the rule governing defendant’s burden.

“One who seeks to establish title to land by virtue of the statute of limitations assumes the burden of proof upon this issue and the proof mus't be clear and satisfactory. . . . The claim of right must be manifested by declaration, or by open and visible act. If there is no verbal assertion of claim to the land brought to the knowledge of the landowner, the adverse possession must be so open and notorious and manifested by such open or visible act or acts that knowledge on the part of the owner will be presumed.” (Citations omitted.)

The tract of land in question comes out of a certain 300 acre tract acquired by Alfred Gandy, the father-in-law of defendant by deed from his brother in 19Í0. In 1917 he conveyed the 50-acre tract to his daughter, Annie Gandy, who later conveyed it to T. S. Henderson, grandfather of plaintiff. Alfred Gandy was not the owner of the 50-acre tract at the time he executed a deed of trust to the Federal Land Bank; but, nevertheless, that instrument included within the description the 50-aere tract and the “York Hog Pasture” tract mentioned in fn. 1, supra. This mistaken description was contained in each succeeding instrument in defendant’s chain of title so that when she and her deceased husband purchased the remnants of the A. Gandy tract, some 190 acres in 1939, the conveyance included the land in controversy here, notwithstanding plaintiff’s ancestors had a valid record title thereto from the sovereignty of the soil. Thus, a junior chain of title was set up by the original mistaken description in 1919.

Plaintiff’s deed to the 50-acre tract was of record at the time defendant acquired the junior title just mentioned. It was valid as to all subsequent purchasers, including defendant. Tex.Rev.Civ.Stat. Ann. art. 6631; Texas Consolidated Oils v. Bartels, 270 S.W.2d 708, 711 (Tex.Civ.App., Eastland 1954, writ ref’d).

At all times material to the period of time involved (1939-1957), the “York Hog Pasture” was enclosed with a fence maintained by its owners. The particular land involved here, along with defendant’s larger tract, was enclosed by a perimeter fence which connected with the York pasture fence. There was no interior fencing which separated the 50-acre tract from defendant’s land. As defendant said, “[there was] [j]ust one fence around the whole 300 acres including the 61 acres [in the York Hog Pasture].” At another time in her testimony she testified that there had never been a fence around the 50-acre tract “since I have known it.” To make it completely clear, she reiterated this testimony by stating that “[t]he 50 [acre tract] is not fenced off separate [sic].”

During the critical period, 1939-1957, no improvements of any nature were made to the 50-aere tract, and defendant maintained her home upon portions of her larger tract some distance from the land involved here.

The defendant’s testimony as to the use made of the 50-acre tract during the critical period leaves much to be desired. Taking her testimony in its most favorable light, it reveals that small patches of the land were used to raise tomatoes, watermelons, corn and peanuts “and things like that.” This line of questioning by her counsel illustrates the unsatisfactory nature of the proof:

“Q. Are you telling me, Mrs. Gandy, that prior to 15 years ago your husband more or less farmed this land?
“A. That is right.
“Q. And you also had cattle grazing on it?
“A. Yes.” (Emphasis supplied.)

Defendant held possession of the land to the north and west of the 50-acre tract under deed; and, in order to establish adverse possession of the 50-acre tract, it was necessary for her to “[h]ave actual possession of such additional land of such character as of itself will give notice of an exclusive adverse possession and mature into title after the statutory period.” Harmon v. Overton Refining Co., 130 Tex. 365, 109 S.W.2d 457, 460 (1937); Henderson v. Goodwin, 368 S.W.2d 800, 802 (Tex.Civ.App., Beaumont 1963, no writ). Testimony such as that set out above does not furnish the necessary notice required by our case law. Cultivation upon a “more or less” basis will not discharge a claimant’s burden. In Odem v. Leahy, 264 S.W. 218, 219 (Tex.Civ.App., San Antonio 1924), the Court said:

“To acquire the title to another man’s property, the possession and use must be hostile, adverse, unqualified, and unmistakable to the true owner. The flag raised and planted over the property, so to speak, must not be allowed to dip, but to float continuously.” (Emphasis supplied.)

Thus tested, defendant’s claim must rest upon the grazing of cattle upon the land involved. But the mere occupancy of land by grazing live stock upon it without substantial enclosures or other permanent improvements — as in this case — is not sufficient to support a plea of limitations under our statutes. De Las Fuentes v. MacDonell, 85 Tex. 132, 20 S.W. 43, 44 (1892); Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 785 (1954); McDonnold v. Weinacht, 465 S.W.2d 136, 141-142 (Tex.1971).

After a careful review of the record under the applicable standards, we find no reversible error and the judgment of the trial court is affirmed.

      . The land involved in this suit lies immediately to the west of the land involved in Gandy v. Pemberton, 389 S.W.2d 612 (Tex.Civ.App., Austin 1965, writ ref'd n.r.e.). Our defendant-appellant is the surviving widow of Jim Gandy, the appellant in the cited case, and we find many references in our record to the “York Hog Pasture” mentioned therein.

      . We quote the several findings of fact which are attacked:

        No. 1: “I find as a fact that on October 1, 1957 Mary Lake Henderson Culpepper [deceased mother of the present plaintiff under whom he claims], was in peaceable possession of the 50 acre tract of land in question.”

        No. 5: “I find as a fact that Defendant, and those whose title she holds, did not have exclusive, peaceable, continuous and adverse possession of the land in controversy cultivating, using and enjoying the same, for any period of ten years, or longer, prior to October 23, 1957, the date when this suit was filed.”

        No. 8: “I find as a fact that the tract of land in question was not purchased for a valuable consideration by Jim Gandy from M. E. Ashley on January 4, 1939.”

        No. 11: “I find as a fact that Defendant, and those whose title she holds, never made an actual and visible appropriation of the land in question, commenced and continued under a claim of right inconsistent with the claim of another.”


author: BISSETT, Justice.

text:
    In the Matter of A. A. A., a child.
    No. 1008.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 30, 1975.

      James Roby Clopton, McAllen, for appellant.
    Gordon M. Young, Edinburg, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from an order of the Juvenile Court of Hidalgo County, Texas, wherein it was found that A. A. A. (appellant), a male child, who was born on February 23, 1958, “is a child whose conduct is delinquent” in that on or about the 3rd day of August, A.D., 1974, he intentionally carried a handgun on or about his person in violation of the law. As a result of that order, the child was committed to the care, custody and control of the Texas Youth Council.

Trial commenced on April 3, 1975. At the adjudication hearing, Mr. Ramiro Salinas, the arresting officer, testified as follows: On August 3, 1974, he was employed by the City of McAllen, Texas, as a police officer; on that day, while on duty and on patrol, at about 11:00 p. m., the headlights on his cruising patrol car revealed two people sitting on the back portion of a pickup truck which was “parked off the street, close to the curb” in McAllen; as he approached the parked vehicle, he turned his spotlight on, and saw one of the people put his right hand in front of his waistline, seize an object and throw it to one side; he then stopped his patrol car, got out and went directly to the place where the object landed, where he found a .25 caliber automatic pistol; he picked up the pistol and placed appellant under arrest.

Appellant objected to the introduction of the pistol into evidence on the ground that the same was obtained as a result of an illegal search of his person. In his first point, appellant contends that “the admission of such evidence violated the defendants’ Fourth Amendment rights as guaranteed by the Constitution of the United States and by the Constitution of the State of Texas”. We do not agree.

In the Federal Courts, under the doctrine known as the “plain view” rule, it has long been settled that objects falling in plain view of an officer (either in daylight or in artificial light), who has a legal right to be in the position to have that view, are not the products of a search, are subject to seizure and may be introduced into evidence without violating the provision of the Fourth Amendment to the Federal Constitution. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Marshall v. United States, 422 F.2d 185 (5th Cir.Ct.App.1970). In the latter case, a deputy sheriff, who was on regular duty, stopped at a restaurant for coffee at about 1:15 a. m. While there, he approached a car in the parking lot, and observed Marshall, the defendant, reclining in the driver’s seat of a parked car, apparently asleep. Shining his flashlight into the car, the officer noticed a sawed-off shotgun resting on the floorboard between Marshall’s feet. He placed Marshall under arrest for being in possession of an illegally made firearm. At the trial, Marshall objected to the introduction of evidence concerning the shotgun on the ground that it had been obtained as the result of an illegal search. On appeal, it was held that the government’s evidence concerning the shotgun was properly admitted into evidence and that the use of a flashlight did not constitute a Fourth Amendment search. The court, speaking through Mr. Justice Goldberg, said:

“A probing, exploratory quest for evidence of crime is a search governed by Fourth Amendment standards whether a flashlight is used or not. The mere use of a flashlight, however, does not magically transmute a non-accusatory visual encounter into a Fourth Amendment search. When the circumstances of a particular case are such that the police officer’s observation would not have constituted a search had it occurred in daylight, then the fact that the officer used a flashlight to pierce the nighttime darkness does not transform his observation into a search. Regardless of the time of day or night, the plain view rule must be upheld where the viewer is rightfully positioned, seeing through eyes that are neither accusatory nor criminally investigatory. The plain view rule does not go into hibernation at sunset.”

The Texas Court of Criminal Appeals also adheres to the doctrine of the “plain view” rule. It is settled law in this State that when an officer, in a darkened environment and in a position where he has a right to be, observes with the aid of a flashlight or spotlight, the throwing away of an object, that the act of throwing the object away comes within plain view of the officer and that such object is legally admissible in evidence at the trial of the accused. Gomez v. State, 486 S.W.2d 338 (Tex.Cr.App.1972); Calhoun v. State, 486 S.W.2d 302 (Tex.Cr.App.1972); Onofre v. State, 474 S.W.2d 699 (Tex.Cr.App.1972); Legall v. State, 463 S.W.2d 731 (Tex.Cr.App.1971).

In Gomez, the Court observed that when contraband is thrown, dropped, or placed away from the person of the accused in a public place, the recovery thereof does not involve a search, and the contraband is admissible into evidence at the trial of the accused.

The defendant, in Calhoun, had been charged with the offense of illegally carrying a pistol on or about his person. He was observed by two police officers walking toward the position of the officers at about 8:30 p. m. He seemed to recognize the officers and put his hand in his pocket. The officers then shined a flashlight on him and they saw a pistol drop out of his pocket. The pistol was introduced in evidence at the trial over the objection of the defendant.

The Court of Criminal Appeals, speaking through Judge Onion, its Presiding Judge, held:

“We find no error in the admission of the pistol. The testimony clearly reflects that the arrest was not made until after the pistol had been dropped and recovered. Further, the subsequent arrest was legal and the pistol was not recovered as a result of a search incident to an arrest. The appellant had dropped the pistol to the ground in plain view of the officers and it was not obtained as a result of a search. . . . ”

In Onofre, the arresting officer observed contraband on the seat of a vehicle when he shined his flashlight into an open door of the vehicle. The court held that this contraband was in plain view, was not the product of an illegal search, and was admissible in evidence.

The facts in Legall present a series of events very similar to those found here. There, the officer saw two vehicles on the side of the road at approximately 11:00 p. m. and stopped to ask if they needed help. He shined his flashlight into one of the vehicles and observed the contraband. The court explained that under these circumstances he had a right to seize what he observed in open view, and that the contraband was properly admitted into evidence.

Tex.Penal Code Ann., Art. 46.02, makes it an offense for a person to knowingly or intentionally carry a handgun on or about his person. Tex.Code Crim.Proc.Ann., Art. 14.01, authorizes a police officer to arrest an offender, without a warrant, for any offense committed in his presence or within his view.

In the instant case, the evidence concerning the pistol, including its introduction into evidence, is clearly within the scope of the plain view rule. Appellant was not arrested until after he had thrown the pisr tol away and it had been recovered by the arresting officer. The pistol was not recovered as a result of a search incident to an arrest.

The use of the spotlight by Officer Salinas did not constitute a search of appellant’s person or of the parked pickup. It was nothing more than a non-accusatory encounter with appellant’s person;- it was not criminally investigatory in nature, and did not take place in connection with a probing, exploratory quest for evidence.

The act of throwing the pistol to the ground was done openly and voluntarily by appellant. It occurred in a public place which was exposed to visual observation, with the naked eye during daylight and by a visual aid such as a spotlight at night. The officer had a legal right to be at that place at that time. The plain view rule must be applied in this case. Officer Salinas did not engage in a search within the meaning of the Fourth Amendment to the Constitution of the United States. No violation of the rights guaranteed appellant by the Texas Constitution is shown. Appellant’s first point is overruled.

Appellant contends in his second point of error that the trial court erred in overruling his objection to the admission of reports by the Juvenile Probation Department and the Mental Health and Mental Retardation Center. He argued that these reports are hearsay and that their admission into evidence violated his constitutional right to cross-examine the maker of the reports.

The reports here attacked were admitted in evidence during the disposition hearing conducted on April 17, 1975. The rules governing such a hearing are found in the Tex.Family Code Ann., § 54.04. Written reports of probation officers and professional consultants may be considered by the court at the disposition hearing.

Good reason exists to give the judge the latitude afforded by Tex.Family Code Ann., § 54.04(b) to consider “written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses” in deciding the disposition to be made of the child. Hughes v. State, 508 S.W.2d 167 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Tyler v. State, 512 S.W.2d 46 (Tex.Civ.App.—Beaumont 1974, no writ).

Appellant does not complain nor is it revealed by the record that the two reports were not available for his inspection. The record reflects that the report of the probation officer was prepared by Mr. Roberto Gonzalez, an officer of the Juvenile Probation Department, Hidalgo County, Texas. He was called by the State to testify in the disposition hearing, and was cross-examined by counsel for appellant. The second report was prepared by a staff psychologist of the Mental Health and Mental Retardation Center, Hidalgo County, Texas, and forwarded to Miss Elvira Saldana, a juvenile probation officer of Hidalgo County, Texas, who was also called by the State to testify at the disposition hearing. The report of the staff psychologist was entered into the record under her testimony. Appellant also cross-examined Miss Saldana. Appellant did not subpoena the psychologist nor does he show that the psychologist was unavailable at the time of trial.

Appellant further contends that the reports should be suppressed because they constitute evidence which was gathered subsequent to an illegal detention. That contention is without merit. The information contained in the reports was not obtained as a result of the seizure of the handgun or the detention of the juvenile. The reports were completed by professionals after physical and psychological testing of the juvenile and investigation of the juvenile’s environment, including home, family and school. The numerous federal cases cited by appellant in support of his theory that “an illegal arrest having made any evidence thereafter gathered is illegal as the reports admitted against the appellant as such evidence violates his 4th amendment rights” are not in point. Appellant’s second point of error is overruled.

The judgment of the juvenile court is affirmed.


author: ROBINSON, Justice.

text:
    NORTH EAST INDEPENDENT SCHOOL DISTRICT, Appellant, v. Myrtle ALDRIDGE, Appellee.
    No. 8526.
    Court of Civil Appeals of Texas, Amarillo.
    Sept. 30, 1975.
    Rehearing Denied Oct. 27, 1975.

      Kirby, Ratliff & Sansom (Ted L. San-som), Littlefield, for appellant.
    Hall & Tollett (Thomas E. Tollett), Little-field, for appellee.
   ROBINSON, Justice.

Plaintiff Myrtle Aldridge brought suit to remove a cloud from the title to 33 lots in Fieldton, Lamb County, Texas, created by a judgment lien in favor of defendant North East Independent School District, against plaintiff’s son, Guy Aldridge. Defendant school district filed a cross action alleging that at the time the abstract of judgment was recorded that Guy Aldridge owned an undivided interest in the lots and seeking foreclosure of its judgment lien against that interest.’ The trial court entered judgment removing the cloud cast by the judgment lien. Defendant school district appeals. Reversed and rendered.

Myrtle Aldridge holds the interest of W. J. Aldridge, deceased, as devisee under his will.

On January 4, 1965, the school district filed in Lamb County an abstract of an October 5, 1964 judgment against Guy Al-dridge. On those dates record title to the lots in question showed an undivided interest in Guy Aldridge and an undivided ½ interest in W. J. and Myrtle Aldridge.

On January 7, 1965, three days after the filing of this abstract of judgment, a deed dated October 27, 1961, from Guy Aldridge to W. J. Aldridge was filed. By this deed Guy Aldridge conveyed to his father by metes and bounds description his undivided ½ interest in 162.6 acres of land in Lamb County. At the trial, Guy Aldridge testified that the 33 lots in question were left out of this deed by mistake. Concerning this transaction, Myrtle Aldridge testified, “We had let him have a lot of money and he deeded that to us to reimburse us.”

On May 28, 1970, more than five years after the abstract of judgment against him was filed, Guy Aldridge conveyed the 33 lots to Myrtle Aldridge individually and as independent executrix of the estate of W. J. Aldridge. This deed contained the recitation that it was given because the grantor intended to convey the property by the October 27, 1961 deed and that it was inadvertently deleted. This deed was filed for record June 1, 1970.

Article 6627, Vernon’s Ann.Civ.St. provides that all unrecorded conveyances of land are void as to creditors without notice. A judgment lien holder is a “creditor” within the meaning of Article 6627. Bova v. Wyatt, 140 S.W.2d 601 (Tex.Civ.App.—Galveston 1940, writ ref’d).

On the other hand, an equitable title acquired independent of legal title is not subject to or governed by the registration statute and the superiority of such title may be asserted against the creditor even though he had no notice of such equitable title at the time of fixing his lien. Further, equitable title acquired independent of the deed may be asserted against the creditor even though legal title has been conveyed and is not of record at the time the creditor fixes his lien. This is so because in a suit between the grantee in the unrecorded deed and the creditor, the statute requires that such unrecorded deed be treated as void. Roeser & Pendleton, Inc. v. Stanolind Oil & Gas Co., 138 S.W.2d 250, 253 (Tex.Civ.App.—Texarkana 1940, writ ref’d). An equitable title is a right which is available in the statutory action of trespass to try title and should be distinguished from a mere equitable right whereby plaintiff, to show title, must first set aside or reform a deed not absolutely void. Pegues v. Moss, 140 S.W.2d 461, 471 (Tex.Civ.App.—El Paso 1940, dism. agr.). See 1 McDonald, Texas Civil Practice § 2.08.1 (1965) and cases cited therein at 195-197.

In the case before us, plaintiff neither pleaded nor offered evidence of equitable title or of any equitable right independent of the October 27,1961 deed. She contends that at the time the judgment lien attached she had an equitable right to have that unrecorded deed reformed so that it would reflect legal title in her to the land in question.

Assuming, without deciding, that under the facts of this case plaintiff did have an equitable right to reform the October 27, 1961 deed, the question for our determination is whether that right to reformation was an equitable right superior to defendant school district’s judgment lien.

The applicable rule was stated by Henderson v. Odessa Building & Finance Co., 24 S.W.2d 393 (Tex.Com.App.1930) as follows:

“The failure to convey the lot levied upon by plaintiffs in error through mutual mistake of the parties gave defendant in error an equitable right to have the deed reformed by correction deed or a decree in equity, but, as plaintiffs in error had no knowledge of such equity at the time their levy was made, the lien thereby fixed was superior to defendant in error’s right to such reformation.”

Following this rule on facts similar to those before us, the court in United States v. Creamer Industries, Inc., 349 F.2d 625 (5th Cir. 1965), cert. denied, 382 U.S. 957, 86 S.Ct. 434, 15 L.Ed.2d 361 (1965) held that a tax assessment lien filed prior to date of a correcting deed conveying lots mistakenly omitted from deeds previously executed had priority over the later deed.

We conclude that the judgment lien attached to an undivided interest in the lots in question.

The judgment of the trial court is reversed and judgment is here rendered that plaintiff take nothing and that defendant and cross-plaintiff, North East Independent School District, have foreclosure of its judgment lien as recorded in Vol. 4, p. 135, of the Abstract of Judgment Records of Lamb County, Texas, against an undivided interest in all of Lots Nos. Five (5), Six (6), Seven (7) and Eight (8), in Block No. Eight (8); Lots Nos. Four (4), Five (5), Six (6), Seven (7), Eight (8), and Nine (9), in Block No. Nine (9); Lots Nos. Seven (7), Eight (8), Nine (9), Ten (10), Eleven (11) and Twelve (12), in Block No. Twelve (12); and Lots Nos. Four (4), Five (5), Six (6), Seven (7), Eight (8), Nine (9), Ten (10), Eleven'(11) and Twelve (12), in Block No. Thirteen (13); and Lots Nos. Eleven (11), Twelve (12), Thirteen (13), Fourteen (14), Fifteen (15), Sixteen (16), Seventeen (17), and Eighteen (18), in Block No. Fourteen (14), all of the Original Town of Fieldton, Lamb County, Texas, according to the map or plat of said Original Town, recorded in the Deed Records of Lamb County, Texas, lying and being situated in Lamb County, Texas, and for costs of suit. Rule 434, Texas Rules of Civil Procedure.