author: BARROW, Chief Judge.

text:
    The B. B. SMITH COMPANY, Appellant, v. H. Glenn HUDDLESTON, Appellee.
    No. 15689.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 29, 1976.

      Johnson & Christopher, San Antonio, for appellant.
    Edward Kliewer, III, Foster, Lewis, Langley, Gardner & Banack, San Antonio, for appellee.
   BARROW, Chief Judge.

Appellant has perfected its appeal from a judgment entered after a jury trial decreeing specific performance of an earnest money contract dated February 28,1975, whereby appellant agreed to sell to appellee approximately 23,075 square feet of land located at the corner of Windway Drive and Walzem Road in Bexar County. The principal issue in dispute is whether certain conditions contained in the contract were met so as to entitle appellee to enforce the contract.

Appellant, a Texas corporation, is a wholly owned subsidiary of Ray Ellison Industries which owns and develops real estate. The property in question adjoins Windcrest Shopping Center which was also owned by appellant. Appellant was engaged in negotiations with a prospective purchaser of the shopping center at the time it was contacted by appellee regarding purchase of the property in question. Appellee wants to build a small shallow-depthed retail center, and he learned in September 1974 that this property might be for sale. He contacted Dick Roberts, a real estate broker with Kittrell Realty Company, and had him check with Ellison Industries to see if the property was available. Kittrell Realty had handled prior transactions for appellee. Roberts and appellee had negotiations with Larry Klang, a real estate broker who had an exclusive listing of appellant’s commercial property. These negotiations led to appellee and Roberts preparing the February 28 earnest money contract for submission by Klang to Ray Ellison, Jr., the president of the appellant. Ellison signed the contract, but only after changing condition 2 and deleting condition 7. Condition 2, as drafted by appellee, provided that First American Title Company would handle the closing and issue the guaranty policy. Ellison changed this provision to designate San Antonio Title Company.

Condition 7 provided in substance that Buyer and Seller should execute a mutually acceptable agreement for ingress and egress on their respective properties. This condition was entirely deleted by Ellison on behalf of appellant, and the contract, as thus altered, was signed and returned to Roberts for delivery to appellee. On March 4, appellee sent to Roberts a check in the amount of $1,000.00 payable to the title company as the agreed earnest money. He also returned an initialed copy of the altered contract. These items were sent with a letter dated March 4 wherein he set forth several conditions to be performed in lieu of condition 7. He advised Roberts that in lieu of the signed ingress and egress agreement required by condition 7 before its deletion, it would be necessary to have an agreement or a condition in the deed of conveyance from appellant to the proposed buyer of Windcrest Shopping Center that the driveway approach to the center from Walzem Road be jointly used by both properties, and further, that such deed of conveyance stipulate that no obstructions would be constructed to prohibit free pedestrian and automobile traffic interchange on contiguous property lines. Appellee also asked for confirmation by appellant that the existing driveway into the shopping center, which was located on the east forty feet of the subject property, would be moved eastward so that the west boundary line of the driveway would be contiguous to the east boundary line of the subject property.

There is some dispute in the evidence as to when appellant learned of the conditions in appellee’s letter of March 4. There was never any direct contact between appellee and Ellison in that all negotiations were between the real estate brokers, Roberts and Klang. However, the evidence is clear that appellant was unwilling to move the existing driveway. On April 9 appellant wrote appellee and advised him that appellant disapproved the plot plan and renderings submitted by appellee in accordance with conditions 5 and 6 and, therefore, the contract was null and void. Appellee had already spent considerable money on the project and desired to carry out the contract. Accordingly, on May 16 appellee delivered to the title company his check for $115,501.68, being the balance of the purchase price. The check was deposited by the title company. This suit was filed by appellee seeking specific performance after appellant refused to furnish a deed and, instead, returned all sums paid by appellee to the title company.

The thrust of the dispute between the parties relates to the existing driveway leading from Walzem Road into the center of the shopping center. This driveway now traverses the east forty feet of the property in question and occupies about one-fourth of the land to be purchased by appellee. Its relocation would adversely affect the shopping center since the present location leads directly into the main section of the center. The shopping center represents a much greater investment of appellant, and, therefore, appellant was admittedly concerned from the outset with protecting this investment. Particularly so, as appellant was then in the process of negotiating for the sale of the shopping center.

Probably as a result of this concern, appellant was granted the unconditional right in conditions 5 and 6 to approve or disapprove the development plans of appellee. Appellant was expressly granted the right to approve or disapprove the plot plan of the subject property including the exact location of the building, parking, and driveway facilities. In the event of appellant’s disapproval of appellee’s plot plan or renderings, it was agreed that the contract should be null and void and of no force whatsoever. The proposed plot plan was not approved by appellant because the building was located on the existing driveway and would require relocation of the driveway. Appellant also asserts that only a front elevation was furnished contrary to condition 6, but it is admitted by Ellison that the contract fell through because of the proposed location of the building on the driveway.

Only one issue was submitted to the jury and, by its verdict, the jury found that appellant failed to act in good faith in refusing to complete the sale of the property to appellee. Judgment was entered on this verdict ordering specific performance of the earnest money contract of February 28, 1975.

Appellant complains of this judgment by nine points of error. It urges by three points that there was no valid contract because there was not a meeting of the minds since appellee never approved the contract as changed by appellant prior to its execution. Appellant contends that appellee’s letter of March 4 presented a counter-proposal which it never accepted. Furthermore, appellant urges that conditions 5 and 6 were never met in that appellee did not supply complete plans for appellant’s approval. Finally, it is asserted that the agreement did not satisfy the Statute of Frauds because there was not a complete contract. Appellant’s other six points relate to the issue of good faith. It urges that there is no evidence or insufficient evidence to support the jury finding. Alternatively, it complains of the action of the trial court in overruling appellant’s objections to the question as submitted and to the definition of good faith. Appellant asserted by its objections that the issue as submitted was too broad and that the proper question was whether it had acted in bad faith in not approving appellee’s proposed plot plan.

The contract, which was drawn by appellee, is unusual due to the broad power granted appellant to approve or disapprove the plans of appellee. Condition 5 clearly and unequivocally granted appellant the right to disapprove the location of the building to be erected by appellee. Appellant also had the absolute right to control location of the driveway. It is apparent that appellant was concerned from the outset with protecting its large investment in the shopping center. Appellant deleted condition 7 before the contract was signed and thereby refused to be bound to even enter into a mutually agreeable easement for ingress and egress. The counter-proposal made by appellee in his letter of March 4 was not acceptable to appellant since it called for the relocation of the existing driveway. Appellee testified that he indicated his willingness to accept the contract as modified by appellant when he tendered the full payment price to the title company on May 16. This was long after the plot plans had been rejected by appellant. Although appellee testified at the trial that the location of the driveway was immaterial to him, he never indicated this to appellant before the suit was filed. We conclude that the earnest money contract of February 28, 1975 became null and void by its own terms.

Appellee urges that the judgment for specific performance is supported by the jury finding that appellant did not act in good faith in rejecting the contract. We agree with appellant that the inquiry should have been limited to the question of whether appellant did not act in good faith in rejecting the plot plan proposed by appel-lee. This was the right granted it by condition 5 of the contract. However, there is no evidence in the record to raise such issue of lack of good faith.

The courts of this State have held that where the duty to perform a contract is conditioned upon the personal approval of one of the parties, that party must act in good faith in exercising his judgment. Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80 (Tex.1976); Atomic Fuel Extraction Corp. v. Slick’s Estate, 386 S.W.2d 180 (Tex.Civ.App. — San Antonio 1964, writ ref’d n.r.e.).

Appellee urges that the issue of good faith was raised in that there was no reasonable basis for appellant to disapprove appellee’s plot plan. Appellee points out that Ellison admitted that he was primarily concerned with the objection to the plot plan made by the prospective purchasers of the shopping center because the sale of the center involved substantially more money. This contention overlooks the fact that appellant had this concern from the outset and undoubtedly accounts for the broad powers granted appellant under the terms of the contract as drafted by appellee and his broker. This concern was recognized by appellee in that after receiving appellant’s rejection letter of April 9, appellee engaged in extensive negotiations with the prospective purchasers in an unsuccessful attempt to work out a mutual agreement for ingress and egress. The only other evidence of bad faith pointed out by appellee is over the important question of which party should bear the expense of the driveway. The cost of relocating the driveway would be relatively insignificant; however, the value of the land upon which same is located is significant. Furthermore, a relocation of the existing driveway would adversely affect the shopping center in that there would be a jag in the driveway leading into the center. For these important reasons, there never was an agreement by appellant to relocate the driveway, and therefore, its unwillingness to do so cannot be considered as evidence of bad faith.

The trial court erred in granting the judgment for specific performance. We therefore reverse said judgment and render judgment that appellee take nothing by its suit.

      . “7) At closing, Buyer and Seller shall properly execute and record a mutually acceptable agreement which, among other things, provides for mutual, non-exclusive easements for ingress and egress and parking on their respective properties.”

      . “5) Prior to closing, Buyer shall submit to Seller a plot plan of subject property showing the dimensions and exact location of any buildings and parking and driveway facilities, signs and landscaping to be constructed on subject property. Seller shall have the right to approve or disapprove of said plot plan. If Seller disapproves thereof, this Contract shall be null and void and of no force or effect whatsoever.”
      “6) Prior to closing, Buyer shall submit to Seller a rendering showing the elevation and exterior appearance of the front, side, and rear of any buildings to be constructed on subject property and a statement of the proposed occupancy and use thereof. Seller shall have the right to approve or disapprove of said plot plan and said occupancy and use. If Seller disapproves thereof, this Contract shall be null and void and of no force or effect whatsoever.”

      . “Question No. 1: Do you find from a preponderance of the evidence that the B. B. Smith Company failed to act in good faith in refusing to complete the sale of the property described in Exhibit No. 3 to H. Glenn Huddleston?
      Answer ‘We do’ or ‘We do not.’
      We, the jury, answer: We Do.

      You are instructed that an individual fails to act in good faith if his actions are arbitrary, capricious or unreasonable.”


source: Caselaw Access Project

author: WARD, Justice.

license: Public Domain

text:
    BLUE BELL, INC., Appellant, v. Edwin ISBELL, Individually and d/b/a Isbell Cleaners, Appellee.
    No. 6526.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 29, 1976.

      Porter, Taylor, Gonzalez, Thompson & Rogers, Rick Rogers, J. Doug Wilshusen, Corpus Christi, for appellant.
    Hasting & Hasting, Howard H. Hasting, San Antonio, for appellee.
   OPINION

WARD, Justice.

Blue Bell, Inc., filed suit on a sworn account to recover moneys due for merchandise sold and delivered. The Defendant, Isbell Cleaners, denied the justness of each and every item of the account under oath. Based upon the jury’s answers to special issues submitted, judgment was entered that the Plaintiff take nothing. Legal and factual sufficiency of the evidence points are presented on this appeal by the Plaintiff which relied on computer printouts as part of the records of its cause of action. We reverse and render in part and in all other respects affirm.

Blue Bell, Inc., operated a part of its business under a division known as Red Kap Industries, which engaged in the business of manufacture and sale of industrial uniforms. The Plaintiff contended that the Defendant owed its Red Kap division $7,089.68 for uniforms purchased. This claim was partly supported by fifteen separate groups of orders, packing lists, and invoices which were introduced in evidence and given exhibit numbers between three and twenty-one. By the first special issue, the jury found that the merchandise shown on each of these fifteen exhibits was ordered by Isbell Cleaners from the Red Kap division. By the second special issue submitted, the jury found that out of the merchandise shown by the fifteen exhibits, the merchandise reflected by only nine of those exhibits was ever delivered to Isbell Cleaners. By answer to Special Issue No. 3, the reasonable market value of the merchandise shown by the fifteen Red Kap exhibits was determined to be $.00 as to each of the exhibits.

In the summer of 1972, Blue Bell, Inc., purchased the manufacturing plant and other assets of an organization known as The Hayes Company. Part of these assets were that company’s accounts receivable, and among those accounts was one totaling $7,970.02 allegedly owed by the Isbell Cleaners to The Hayes Company. This claim of The Hayes Company, which was also for industrial clothing, was supported in part by five invoices with attached orders and packing lists. These were identified, introduced, and given exhibit numbers between twenty-two and twenty-seven. By the fourth and fifth special issues submitted, the jury failed to find that any of the merchandise shown in each of these five exhibits was either' ordered by or delivered to Isbell Cleaners. By answer to Special Issue No. 6, the reasonable market value of the merchandise shown by those five exhibits was determined to be $.00 as to each of the exhibits.

By the final special issue submitted, the jury determined that reasonable attorney’s fees necessarily incurred in the preparation and trial of the case would be the sum of $2,300.00. As indicated, the Court accepted the verdict of the jury, entered a take nothing judgment, and this appeal by the Plaintiff results. The Plaintiff recognizes the general rule that once a verified denial is filed in an action brought on a sworn account, the force of the itemized account is destroyed and every item of the account must then be proved by competent evidence without the aid of Rule 185, Tex.R.Civ.P. Charlie Thomas Courtesy Ford, Inc. v. Sid Murray Agency, 517 S.W.2d 869 (Tex.Civ.App. — Corpus Christi 1974, writ ref’d n.r.e.). Essential elements of such proof are generally (1) sale and delivery of the merchandise, and (2) that the amount of the account is just, or, in other words, that the prices charged are in accordance with the agreement, or, in the absence of agreement, that they are usual, customary or reasonable. Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App. — Dallas 1963, no writ); Marr v. Craddock, 406 S.W.2d 278 (Tex.Civ.App. —Tyler 1966, no writ). The Plaintiff must show that the Defendant agreed to pay the prices charged by the Plaintiff for the material sold, or that the prices were reasonable or customary. Parker v. Center Grocery Company, 387 S.W.2d 903 (Tex.Civ. App. — Tyler 1965, no writ). As stated by another authority, one of the essential elements of the proof is the justness of the account. This can be shown in two ways: either that the prices charged were agreed upon by the parties, or, in the absence of an agreement, that the prices were usual, customary or reasonable. Brooks v. Eaton Yale and Towne, Inc., 474 S.W.2d 321 at 323 (Tex.Civ.App. — Waco 1971, no writ).

The problem of primary importance to the Plaintiff on this appeal concerns the zero findings on market value. On both series of orders, the case was submitted as to what was the reasonable market value of the merchandise involved. A review of the record shows there was no proof introduced which would have justified this submission. The only testimony regarding prices was that the respective prices were those being then currently charged. Compounding the Plaintiff’s difficulty in this regard is the fact that no objection was made to these issues submitting reasonable market value.

Complaint was made and preserved by the Rule 301, Tex.R.Civ.P. motion that the findings to Special Issues Nos. 3 and 6 should be disregarded on the ground that the undisputed and uncontroverted evidence showed that the prices set out in each exhibit were those “then currently being charged for the merchandise” by the Plaintiff; that the undisputed and uncontrovert-ed evidence showed the delivery to the Defendant of all the merchandise; and that since the evidence failed to show any objection by the Defendant to any of the charges for any of the merchandise, his acquiescence to the prices charged was shown and as a matter of law he should be charged with his approval of those prices.

Whether or not the trial Court should have disregarded the jury findings regarding reasonable market value of the merchandise and to have then entered judgment for the Plaintiff depends first upon the authority of the Court to act on the Rule 301 motion, and second on the quantity and quality of the proof offered by the Plaintiff as to the amount of the account.

As to the authority of the trial Court, it can disregard a special issue only when it has no support in the evidence or when the issue is immaterial, and a special issue is immaterial when (1) it should not have been submitted, or (2) though properly submitted, it has been rendered immaterial by other findings. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.Sup. 1966); 4 McDonald, Texas Civil Practice, Secs. 17.30-17.32.

As shown, the issues as to reasonable market value of the merchandise should not have been submitted as there was no evidence of that value. As later pointed out, the submission on the proper theory of an agreed price or usual price was rendered immaterial, at least in part. The remaining hurdle for the Plaintiff to then have overcome was whether it introduced such a mass of evidence that it was entitled to a finding as to the prices as a matter of law. The evidence as to the prices charged must be found in the business records, the circumstances in the case, and the testimony of Ben Martin, who was the manager of the customer accounts for Red Kap Industries and who was an interested witness. “The general rule is that evidence given by an interested witness, even though uncon-tradicted, presents an issue to be determined by the trier of fact. This rule is not without exception, however, and conclusive effect may be given to the testimony of an interested witness provided the testimony is clear, direct and positive and there are no circumstances tending to discredit or impeach the same. There is an added reason for recognizing the exception when the opposite party had the means and opportunity of disproving the testimony, if it were not true, and failed to do so.” Gevinson v. Manhattan Construction Company of Oklahoma, 449 S.W.2d 458 at 467 (Tex.Sup.1969).

In general, Mr. Martin testified that he had been the manager of customer accounts for Red Kap for the past eight years; that he was in charge of and had the custody and control of all of the records relating to the sales made to the Isbell Cleaners; that all of the records were kept in the due and ordinary course of business of Red Kap; that all entries on the records were made about the time that the transaction recorded transpired, and were originally made by someone who had personal knowledge of the individual entry. He stated that when an order for uniforms was made, it was first entered in writing on an order form which showed the name and address of the customer, the size and number of the uniforms ordered, and that it was made by a person who had personal knowledge of that transaction. The order form was then transferred and entered into a computer by trained personnel for printing of packing lists and for the preparation of invoices which were made in six or seven copies; that the invoices contained the name and address of the customer, the order date, the invoice number, the list of clothing shipped and the prices charged and their totals, together with the due date of the expected payment. One of these copies was sent to the customer within twenty-four hours of the shipment. He testified that the prices charged were those currently charged by Red Kap for each specific item. Mr. Martin then identified fifteen separate Red Kap invoices, each with supporting written order forms relating to each respective invoice. Most of these were with additional supporting documents reflecting Red Kap’s records as to the route each of these orders was shipped and the common carrier used. It was these fifteen separate invoices, with their respective order forms, packing lists, and shipment data, which were introduced into evidence and given exhibit numbers between three and twenty-one; it was the clothing described in these fifteen separate invoices and exhibits which the jury determined had all been ordered by Isbell Cleaners from the Red Kap Division.

Of these fifteen separate shipments and exhibits, nine of these were supported by a receipt purportedly signed by the Defendant Isbell or one Kathy Borah, who was identified as being an employee for Isbell Cleaners. The delivery of the merchandise reflected by these nine items was further supported by the testimony of Mrs. Myra Lear, an employee of Merchants Fast Freight who had custody of their records and who identified the delivery receipts as being copies of original records retained by Merchants Fast Freight. It was this merchandise, as reflected by these nine exhibits, which the jury determined was delivered to the Isbell Cleaners. These deliveries were made in July and August, 1972, and as to this merchandise Mr. Martin testified that these invoice prices, along with the rest of the account, were still due and owing by Isbell Cleaners.

We have determined that as to these nine shipments, there were no circumstances discrediting the testimony of Mr. Martin that the sums reflected by these inventories were still due and owing. This oral testimony was corroborated in full by the documentary evidence, by the receipts referred to, and finally by the silence of the Defendant Isbell. If these amounts were not due and owing to the Plaintiff, Isbell certainly had the means and opportunity of disproving the testimony if it were not true. No attempt was made to disprove this testimony on the nine shipments which the jury determined had been delivered to Isbell Cleaners. His silence under these circumstances can only be construed to attest to the truthfulness and accuracy of the amount that was then due and owing on these nine shipments, and as to these we conclude no jury issue was raised. Bayou Drilling Co. of Texas v. Baillio, 312 S.W.2d 705 (Tex.Civ.App. — Houston 1958, writ ref’d n.r.e.). At no time did the Defendant object to the prices listed in the invoices from the date he received the material and the invoices until the time of trial. Under these circumstances, his failure to object compels the inference of his approval of the prices so as to establish a stated account at the prices set forth in the invoices. Graham v. San Antonio Machine and Supply Corporation, 418 S.W.2d 303 at 312 (Tex. Civ.App. — San Antonio 1967, writ ref’d n.r. e.). The jury having determined that these nine shipments were delivered to Isbell Cleaners, the only conclusion that can be reached was that Isbell Cleaners owed the amounts reflected by the invoices.

In other words, it having been found that these goods were ordered and were delivered, a finding that the Defendant agreed to pay the price of the merchandise as listed in the invoices was rendered immaterial. New Trends, Inc. v. Stafford-Lowdon Company, 537 S.W.2d 778 (Tex.Civ.App. — Fort Worth 1976, writ ref’d n.r.e.), and 4 McDonald, Texas Civil Practice, supra.

What we have stated is limited to those nine Red Kap exhibits, and the Plaintiff’s points on appeal Nos. 4 and 6 are sustained insofar as they relate to those nine Red Kap exhibits, which are numbers 3,4, 6,9,10,13, 19, 20 and 21. We have considered the evidence under the legal sufficiency test and all of the evidence under the factual sufficiency test, and after having done so, all other points of the Plaintiff are overruled. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).

In two counterpoints, the Defendant contends that the Plaintiff’s records should not have been admitted into evidence, arguing in the main that all records of The Hayes Company did not qualify for the exception to the hearsay rule as provided by Art. 3737e, Tex.Rev.Civ.Stat.Ann. Mr. Martin was used to testify as to The Hayes Company records, which he stated he had verified as being correct. However, he had never been associated with The Hayes Company prior to its acquisition by the Plaintiff, the only records available were those which had been stored for use by a computer, and he knew nothing as to the manner that they had been kept except from what he had been told. Those records failed to qualify under the statute. University Savings and Loan Association v. Security Lumber Company, 423 S.W.2d 287 (Tex.Sup. 1967). For this additional reason, all of the Appellant’s points concerning The Hayes Company account are overruled. Under the latter authority, the records of Red Kap are admissible.

The merchandise represented by the nine Red Kap exhibits discussed totalled $5,627.81. The judgment of the trial Court that the Plaintiff take nothing is reversed and is here rendered that the Plaintiff recover of and from the Defendant the sum of $5,627.81, with interest thereon at the rate of six percent (6%) per annum from January 1, 1973, together with attorney’s fees in the amount of $2,300.00. In all other respects, the judgment of the trial Court is affirmed. Tex.R.Civ.P. 434.


text:
    Cesar A. MORALES, Appellant, v. Maria Gudelia MARTINEZ, Appellee.
    No. 6533.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 29, 1976.
    Rehearing Denied Jan. 20, 1977.
    Fansler, Reese & Palacios, Ricardo D. Palacios, Nat B. King, Laredo, for appellant.
    Texas Rural Legal Aid, Inc., George P. Powell, Edinburg, El Paso Legal Assistance Society, Israel Galindo, El Paso, for appel-lee.
   OPINION

WARD, Justice.

Suit was by Dr. Cesar A. Morales against Miss Maria Gudelia Martinez for specific performance of an option contract to sell 154 acres of land in Zapata County. Based upon jury findings which sustained separate equitable defenses of mutual mistake of fact, fraudulent representation and duress, judgment was entered for the Defendant. We reverse and render.

On April 2, 1968, the Plaintiff and the Defendant entered into a contract of sale and an option agreement whereby the Plaintiff agreed to purchase from the Defendant a tract of 110.26 acres of land in Zapata County at $100.00 per acre. An option was therein granted to the Plaintiff to purchase the balance of the Defendant’s land of 154 acres at a price of $100.00 per acre. The terms of the option were for the lifetime of the Defendant and for two years after her death. Additionally, the Plaintiff agreed to pay for certain necessary survey work to enable the Defendant to separate and to perfect her title to the land from the claims of certain co-tenants, and to determine the exact acreage of the tracts involved.

On April 18, 1968, in accordance with the terms of the previous contract, the Defendant executed and delivered to the Plaintiff a general warranty deed conveying the 110-acre tract, reserving to the Defendant the vendor’s lien to secure the balance due and owing on the tract as represented by a promissory note in the principal amount of $8,126.00 and payable in installments of $50.00 per month. At that time, and in accordance with the previous contract of sale, the Plaintiff made the down payment, paid the legal expenses for the cost of preparation of the deed to him, the cost of preparation of the partition between the Defendant and her co-tenants, and the cost of the survey work. According to the Plaintiff, these expenses amounted to $1,200.00.

On May 2,1968, the Defendant Miss Martinez executed an oil and gas lease to one James A. Mayo on her remaining 154 acres which were under the option to Dr. Morales. To enable the Defendant to execute this oil and gas lease, the lessee required that Morales join with the Defendant in the execution of the oil and gas lease and therein agree to subordinate his option to this lease. It was also provided that the Defendant would collect all bonuses, as well as all rentals and royalties due under the terms of the lease, until such time as the Doctor might exercise his option. It was further agreed that in the event he exercised his option, then all rentals and royalties would thereafter be paid to him. On July 5,1968, Morales signed the oil and gas lease.

Also on July 5,1968, the Plaintiff and the Defendant executed a surface lease of the 154 acres of land for a term of five years from July 1, 1968, to June 30, 1973, at a rental of $2.00 per acre per annum, payable annually in advance. This lease was in both the English and Spanish languages. It referred to the previous option and provided that if Dr. Morales exercised his option to purchase the land before the expiration of the five-year term of the surface lease, all payments due under the oil and gas lease would thereafter be payable to him, the surface lease would terminate, and no further rents would be payable to the Defendant. The Plaintiff was given the right to make such improvements on the land at his own cost and expense as he saw fit. It provided that the lessor “expressly ratifies and confirms the above referred to option granted to Lessee herein by the instrument executed by the parties hereto on April 2, 1968, * * * an(j neither this lease, nor the making of any improvements by Lessee shall in any way affect the agreed price for which the Lessee may purchase the above described land; and it is further understood and agreed that if Lessee herein has not exercised his option to purchase said land at the expiration of the five year term of this lease, such option shall continue in full force and effect and may be exercised by Lessee at any time thereafter during the lifetime of Lessor herein, or within two years after her death, by paying or tendering to Lessor herein the sum of $100.00 per acre as contemplated by said option * * of April 2, 1968 * * *It further provided that the failure on the part of the lessee, Morales, to pay the rents would be cause for termination of the lease, but termination of the lease would in no way affect the validity and binding effect of the option. The Doctor testified that thereafter he spent some $13,000.00 on improvements on the option land.

Thereafter, on June 11, 1973, the Plaintiff exercised his option to purchase the 154-acre tract and tendered to the Defendant a deed for execution and the necessary-payment. The Defendant refused to execute the deed and the present suit resulted. In her answer, she alleged that she never granted the Plaintiff an option to buy the 154 acres; that she understood the agreement was merely a granting to the Plaintiff of the first refusal on the property if she ever decided to sell; that she did not read English and did not understand the contracts which she had signed; and that she was fraudulently induced to execute all of the option contracts. She prayed for cancellation of the option clause.

The Plaintiff filed special exception to this pleading on the ground that the matter was essentially a counterclaim and was barred by the four-year Statute of Limitations, art. 5529, Tex.Rev.Civ.Stat. Ann. The special exception and the Plaintiff’s objections made to the Defendant’s testimony regarding these matters were overruled, and Plaintiff asserts error as the counterclaim had accrued five years previously and was therefore barred. While the pleading prayed for cancellation of the option agreement, the subject matter upon which the Defendant’s counterclaim was based did not constitute an independent cause of action. It went to the foundation of the Plaintiff’s cause of action on the option. While the cases have not been uniform, it seems clear that where the subject matter of a defendant’s pleading is strictly by way of defense and operates merely as a negation of the plaintiff’s right of recovery, the statute does not run. Being essentially defensive, it was not barred by the Statute of Limitations. Preston v. Williams, 427 S.W.2d 157 at 160 (Tex.Civ.App. — Eastland 1968, no writ). It has been suggested that to avoid the “semantic difficulty” involved in the subject matter where the Statute of Limitations might be applicable, the pleader should refrain from alleging the defense as a counterclaim. See 2 McDonald, Texas Civil Practice, Sec. 7.46; see also 37 Tex. Jur.2d 103. The Plaintiff’s first two points are overruled.

Plaintiff next asserts “no evidence” as to the three equitable defenses claimed by the Defendant regarding the validity of the option contract and which she successfully used to secure the cancellation of the contract. Under the established rules, we must consider only the evidence and inferences, if any, which viewed in their most favorable light will support the jury findings and will disregard all the evidence and inferences to the contrary.

In so testing the evidence, it appears that the Defendant was an elderly woman unable to understand English and illiterate. It was her testimony that she never told the Plaintiff that she would give him an option on the 154 acres; that she did not know that the contract of April 2nd contained an option; that no one ever explained to her that the option was there, but that one Poncho Bustamante explained to her that in the event of any sale that the Plaintiff would be “the first one, the preferred one”; that later, her neighbors were receiving oil and gas checks and she was not, and Attorney Mann drew up a lease for her to execute, but she does not remember if she went to him or if the lease was brought to her by her relatives. Mr. Mann, or his secretary, told her about the option at that time and she was told that there was a check for her, but that the Doctor would also have to sign. She got very angry, cussed out everybody, and went to see Attorney Kazen, and that was the first time she found out about the option. She then saw three other attorneys about the option. It was then stipulated by the attorneys that she was stating that she found out about the option between May 13, 1968, and July 5, 1968. Attorney Kazen told her that he would take the option off, but she never went back to him as she had an “arrangement” or agreement with the Plaintiff that he would not enforce the option.

Based on this testimony, the equitable defenses were submitted to the jury on all of the contracts. Without further detail, there is a complete absence of testimony that would charge the Plaintiff with fraudulent conduct, duress, or any other equitable reason to void the grazing lease of July 5, 1968, with the complete ratification of the option agreement contained therein. Regardless of the physical condition of the Defendant and of her lack of education, these parties were dealing at arm’s length and there was no special relationship between them. It was the Defendant’s burden to sustain proof of the elements of her defenses to the original option contract and to the ratification thereof of July 5th, and as to the ratification, she failed completely. The Plaintiff’s no evidence points regarding mutual mistake of fact, fraudulent representation and duress are sustained at least so far as they relate to the July 5th contract.

If we were to reach the insufficient evidence points on the three equitable defenses, we would have sustained them and have remanded the case. There is no need to detail the complete evidence before us.

The Plaintiff’s point regarding alleged jury misconduct is not reached. The judgment of the trial Court is reversed and judgment is here rendered granting to the Plaintiff specific performance of the option agreement of April 2,1968, as prayed for by him.


author: OSBORN, Justice.

text:
    Elmer BLISS et ux., Appellants, v. Martin Coker LASSITER, Appellee.
    No. 6571.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 29, 1976.
    Rehearing Denied Jan. 26, 1977.
    Trenchard, Davis & Hardwick, Robert Trenchard, Jr., Odessa, for appellants.
    John R. Lee, Kermit, for appellee.
   OPINION

OSBORN, Justice.

This is an appeal of a permanent injunction which enjoined Appellants from moving onto and maintaining a house trailer or mobile home upon a certain lot in Kermit, Texas. We reverse and render.

The Appellants purchased a lot in Memorial Park Subdivision, Kermit, Texas, next to a home owned by the Appellee. The Subdivision had restrictive covenants, one of which provided:

“No trailer, basement, tent, garage or temporary quarters shall at any time be used as a residence on any portion of said Memorial Park Addition.”

The Appellants moved a 12' x 65' mobile home onto the lot they purchased. They removed the wheels, blocked it up on a foundation, and were in the process of hooking up utilities when this dispute arose.

The Appellee filed suit alleging that a trailer had been moved into the Subdivision in violation of the restrictive covenants and alleged that this resulted in an irreparable injury. Appellee prayed that Appellants be temporarily enjoined from moving a trailer onto their lot, and that on final hearing they be permanently enjoined from such conduct.

At a hearing in February, 1976, the trial Court granted a permanent injunction which enjoined Appellants from moving onto and maintaining a trailer house or mobile home on the lot in question, and ordered a removal of the mobile home previously placed on the lot. Appellants contend that there was no evidence that their mobile home was the type of structure prohibited by the restrictive covenant, and that as a matter of law the prohibition in the covenant was not applicable.

The first Texas case to consider a similar restriction was Crawford v. Boyd, 453 S.W.2d 232 (Tex.Civ.App. — Fort Worth 1970, writ ref’d n. r. e.). In that case, the restrictive covenant prohibited shacks and tents and listed certain lots which were approved for trailer homes. It further provided: “ ‘All other lots shall be residence lots only and no trailer homes shall be permitted thereon * * The defendant, Boyd, moved a trailer house onto a lot which was not one of those which specifically permitted such units. The trial Court denied plaintiff’s request for a mandatory injunction requiring the removal of the trailer house. In affirming, the Court of Civil Appeals noted that the important question for determination was the use that was actually being made of the unit at the time in question, not some possible future use. Basically, the Court followed other decisions which held that once a unit is immobilized and affixed to realty, it is not a portable structure and therefore not a trailer or mobile home.

In Hussey v. Ray, 462 S.W.2d 45 (Tex.Civ. App. — Tyler 1970, no writ), an injunction was sought to enjoin a party from maintaining a mobile home upon a lot in a subdivision where the restrictive covenant provided:

“ ‘No trailer, tent, shack, stable or barn shall be placed, erected or be permitted to remain on any lot, nor shall any structure, of a temporary character be used at any time as a residence.’ ”

In the trial Court, a summary judgment denied the relief sought. The undisputed evidence showed that appellees moved a 12' x 52' mobile home on their lot, removed the wheels and placed it upon a permanent concrete block foundation. All utilities were connected and the structure was used as a permanent home. In holding that the restriction did not apply, the Court said:

“ * * * In construing the restriction it is significant, we think, that it is contained in only one sentence. The first clause appears to exclude all ‘trailer’, ‘tents’ and ‘shacks,’ while the second clause excludes all temporary structures used for human habitation. In order to arrive at the true intent of the parties, both clauses must be construed together. Since the parties apparently did not intend to exclude all trailers, the question arises as to which trailers would be permissible. Thus the purpose of the restriction becomes important. To us, it appears that the primary purpose of the restriction, insofar as it relates to human habitation, was to prevent the property owner from using any temporary structure for a residence. Thus the use of a ‘tent’ or ‘shack’ would certainly be prohibited because such structures are temporary in character. The use of a ‘trailer’ as a place of residence would likewise be prohibited if the same was temporary in nature. In determining whether the structure in question is temporary, the size, shape, appearance and other surrounding circumstances must be taken into consideration. The mere fact that it was moved upon the lot is not necessarily a controlling factor.
* * * * * *
“Appellees’ claim that their mobile home has been fully converted into a permanent residence with all the conveniences and attributes of a modern one-family dwelling, appears to have been conclusively established. The structure erected on the lot was built for human habitation, has all the attributes of a permanent type dwelling, was used as such and was fixed to the realty by various connections. * * *”

In Bullock v. Kattner, 502 S.W.2d 828 (Tex.Civ.App. — Austin 1973, writ ref’d n. r. e.), the Appellate Court reached a different result and distinguished the above two cases because the restriction in that case prohibited the use of trailers parked either “temporarily or permanently” in the subdivision. The Court concluded that a trailer permanently bound to the earth was prohibited. We do not have such a restriction in the case now before us, and we conclude that the Bullock case is not controlling. Although the Bullock holding was followed in Phillips v. Zmotony, 525 S.W.2d 736 (Tex. Civ.App. — Houston [14th Dist.] 1975), that case was reversed on other grounds without a determination as to the effect of the restriction. Zmotony v. Phillips, 529 S.W.2d 760 (Tex.1975).

Having concluded that the facts and restriction in the Hussey case are almost identical with those now before this Court, we believe that case is controlling. We sustain Appellants’ point of error No. 3.

The judgment of the trial Court is reversed and judgment is rendered that Ap-pellee is denied all relief sought against Appellants.


author: EVANS, Justice.

text:
    In the Matter of R_ E_ W_, Appellant.
    No. 16786.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 30, 1976.
    Rehearing Denied Jan. 27, 1977.

      Nicolas R. Serna, Houston, for appellant.
    John L. Hill, Atty. Gen., David M. Kendall, Colin J. Carl, Frank C. Cooksey, Asst. Attys. Gen., Austin, for appellee.
   EVANS, Justice.

This is an appeal from a judgment of the Juvenile Court, terminating the parent-child relationship between Dorothy Mae Woods and her child Rebecca E. Woods and naming the Harris County Child Welfare Unit as the managing conservator for the child.

In her first three points of error Mrs. Woods questions the constitutionality of the emergency sections of the Texas Family Code which authorize juvenile probation and law enforcement officers and authorized representatives of the State Department of Public Welfare to take possession of a child without notice, “to protect him from an immediate danger to his physical safety” and which set forth procedures for the issuance of temporary orders for the care and protection of the child. Chapters 11 and 17, Texas Family Code.

Mrs. Woods contends that on January 21, 1976, after she had had an argument with the Harris County Child Welfare Unit worker assigned to the case, the Welfare Unit, without prior notice, picked up her child Rebecca, at the nursery school her child was attending. That same date a petition was filed by the Welfare Unit in Juvenile Court, requesting termination of the parent-child relationship between Mrs. Woods and her child Rebecca, and an order was thereupon entered by the Juvenile Court setting a show cause hearing on the temporary conservatorship for February 2, 1976. The order also designated that a final hearing on the termination petition would be held on April 5, 1976, but that hearing was postponed until April 29, 1976, when the court entered the order from which this appeal is taken.

Mrs. Wood contends that the statutory scheme evidenced by the Family Code is unconstitutionally vague in that the Code provisions fail to define with sufficient particularity the grounds upon which immediate custody of the child is justified and upon whose determination such action may be authorized. She argues that an emergency possession of a child under Chapter 17 of the Code, in effect, deprives the parent of a constitutional right to an immediate hearing, and as a practical result, the parent is painfully separated from the child for a lengthy and indefinite period.

Mrs. Woods concedes that she received notice from the Welfare Unit that her daughter Rebecca had been taken into custody and that she was notified of the show cause hearing. An appeal could have been taken from the emergency order, even though the appeal would not have stayed the order. Section 17.07, Tex. Family Code. Although serious questions as to the constitutionality of the statute have been raised, it has not been shown that any harm or prejudice was caused to Mrs. Woods in her defense of the State’s petition for termination. Any question relating to the temporary custody of the child was rendered moot upon the rendition of a final judgment in the case terminating the parent-child relationship. City of Corpus Christi v. Cartwright, 281 S.W.2d 343 (Tex.Civ.App. — San Antonio 1955, no writ); McNeill v. Hubert, 119 Tex. 18, 23 S.W.2d 331, 333 (1930). The first three points of error are overruled.

Mrs. Woods’ fourth point of error, which must be sustained, is that the State failed to meet its burden of proof and that the evidence does not support the trial court’s judgment terminating the parent-child relationship.

The testimony established that Rebecca Woods was born on July 26, 1971, and that her case had first been referred to the Harris County Child Welfare Unit in September 1971 when she was approximately two months old. The child apparently remained in the custody of her mother, Mrs. Woods, until June or July 1972 when Mrs. Woods was voluntarily hospitalized for treatment of alcoholism. The child was under the care of Child Welfare until November 1972 when she was returned to the custody of her mother.

Patricia Leger, an employee of the Harris County Child Welfare Unit, testified that she had been assigned to the Rebecca Woods case in November 1972 and that she handled the case until July 1973. She testified that Mrs. Woods lived in a small one bedroom rent house which has a kitchen, living room, bedroom, and bathroom. There were many rent houses in a row, very close together, and the rental was $10.00 to $12.00 per week. The house was situated in a high-crime area. Mrs. Woods kept piles of clothing about the house and there were also used, filthy rags which appeared to be gasoline or turpentine soaked. Mrs. Woods claimed she was painting and needed to have the rags for that purpose. In the kitchen were piles of garbage, edible food which had rotted and was covered with fungus and roaches, a “sea of roaches”. Mrs. Leger set up a plan with Mrs. Woods whereby visiting nurses and a homemaker came into the house. The homemaker would stay the better part of the day and would tell Mrs. Woods about nutrition and how to clean. Mrs. Leger also worked with Mrs. Woods but had difficulty making her understand how the garbage and clutter in the house constituted a health hazard. Rebecca was a small framed, very skinny child; her stomach was distended and her limbs were tiny. She was behind in her development, unable to walk and required special high-topped shoes. Mrs. Woods did not feed Rebecca solid foods, but kept her on a bottle because that was easier. “Rebecca constantly had a bottom that can only be described as scalded. She did not change her frequently and her diaper was urine soaked or worse, and the baby’s buttocks were actually raw . . . sometime oozing, it was so raw and I worked with her on changing the child - more frequently and taking better care, and she was also filthy and the baby was filthy.” Mrs. Woods was receiving psychiatric counselling and saw a psychiatrist at least every other week. In July 1973 Mrs. Woods became emotionally disturbed to the extent that she was hospitalized in the Austin State Hospital for about three months. During this time Child Welfare again assumed the care and custody of the child. Mrs. Leger assisted in her admission to the hospital and afterward had no further contact with the case. Mrs. Leger described Mrs. Woods as resourceful, manipulative and really likable; she had no family to help her and no transportation. Mrs. Woods expressed love for Rebecca and Mrs. Leger’s concern was that Mrs. Woods seemed unable to protect the child from the filth of her living conditions and also that Mrs. Woods kept a loaded gun and medicine bottles within reach of the child. She also failed to feed the child correctly. The reason that Rebecca was returned to her home after Mrs. Woods was discharged from Austin State Hospital was that there seemed to be an improvement on the part of Mrs. Woods.

Dr. Marie L. Surgi, a pediatrician employed by Harris County Child Welfare, had examined Rebecca on three occasions, the first in October 1974. Rebecca was a very slender child, somewhat undernourished. She was then 3½ years old and had a slight heart murmur. She had very poor balance, could not hop or jump or walk in a relatively straight line. She was sent to Mental Health/Mental Retardation therapeutic nursery to improve her mental and physical development. Dr. Surgi saw Rebecca again about a year later. Rebecca was then going to Head Start in the morning and to the therapeutic nursery in the afternoon, and a counsellor was seeing the mother and child once a week. Rebecca was brought in to see Dr. Surgi for possible malnutrition, because she was so thin. She had gained considerably since the first visit, but she was tall, still thin and her muscles were extremely flabby. Dr. Surgi made note that the child showed no great neglect, but that she was underweight which could be due to insufficient food. Dr. Surgi also noted that Rebecca had improved a great deal in her motor skills and, to some extent, in her social skills. About two and a half months later, in January 1976, Dr. Surgi again examined Rebecca. Rebecca had gained a couple of pounds, but was still a very thin looking child. Dr. Surgi noted that Rebecca was very potbellied and that she had a flatulent abdomen with weak abdominal muscles frequently considered to be the result of poor nutrition. Rebecca’s color was good but her skin was extremely dry; her clothing clean but ragged. Dr. Surgi had not ever talked to Mrs. Woods. She noted, however, that the child loved her mother and that the mother apparently loved the child.

Judy Albracht, an employee of Harris County Child Welfare Unit, was assigned to the case from September 19,1975, until the show cause hearing on February 5, 1976. Mrs. Albracht testified she first went to Mrs. Woods’ home on a report that the child had been whipped for faking an illness. She observed that the apartment was very dirty, very cluttered, and had an odor similar to that of an animal cage. The floor had visible dirt, peanut shells and other debris, and the kitchen table was full of bottles and boxes. She testified that Mrs. Woods denied any physical abuse of the child and claimed that the child would scream when she, Mrs. Woods, was not even in the room. Mrs. Albracht testified that she observed three large sores on Rebecca’s left thigh and that it appeared to be swollen. Approximately one week later Mrs. Albracht again went to Mrs. Woods’ home. She noticed that the kitchen table was filled with food and garbage; there was a large garbage bag next to the table which was full and the counter, sink and stove were piled about a foot high with used dishes, pots, leftover food and garbage. The floor had dirt and spills rubbed into the linoleum and there were roaches and fleas. The hallway was loaded; the living room was full of clothes and the coffee table was filled as high as it would go with medicine, food, papers and trash. The bathroom and bedroom were relatively uncluttered at that time. She said Mrs. Woods seemed aware of the problem and apologized for the condition of the house. At Mrs. Albracht’s suggestion a homemaker began working with Mrs. Woods in October 1975, and the homemaker went to Mrs. Woods’ house about twice a month. However, as one room would get clean, another would become cluttered, and Mrs. Woods said that she could not keep it clean. Mrs. Woods told her she was too ill to clean the house and admitted that she was not cooking for the child. She said Rebecca usually ate downstairs at a neighbor’s apartment. Mrs. Woods and Rebecca slept in the same bed, and Mrs. Woods kept their nightgowns tied together at night so that the child could not wander through the apartment. Mrs. Al-bracht was later able to get Rebecca into her own room. Mrs. Albracht testified that Rebecca was picked up by Child Welfare for two reasons, the first being the condition of the house and the care the child was getting at home, and the second being that the Mental Health worker who had been working with Rebecca observed that the child had regressed quite a bit during the three weeks she had been at home over the Christmas vacation. During the time that Mrs. Albracht remained on the case Rebecca was sometimes clean and sometimes pretty dirty. Her most observable problem was a very dry skin and the fact that she was so thin. Mrs. Albracht denied any personality conflict between herself and Mrs. Woods.

Mr. Robert Guidry, the psychiatric social worker at Children's Mental Health Services, had seen Rebecca and Mrs. Woods on four occasions in his office. His function was to provide parental counselling to Mrs. Woods. On their first visit he noted that Mrs. Woods’ manner of relating to Rebecca was harsh and scolding. “I saw very little of the tenderness I would expect of a mother to have in dealing with her child.” In subsequent interviews he noted considerable physical contact between the mother and the child. Both seemed very aggressive in their interaction. During therapeutic exercises in which the child was supposed to take the lead, Mrs. Woods seemed unable to adopt a passive attitude and became aggressive in her conduct. Mr. Gui-dry stated that he made some progress in his four interviews but that he considered the progress to be minimal.

Mrs. Jill Fein, a therapist at the therapeutic nursery, had worked with Rebecca since she had been admitted in the nursery in November 1974. She said when she first saw Rebecca it did not appear that Rebecca had had any social activity. Rebecca did not know how to display affection or sit at a table and eat; at snack time she would take a handful of cookies and stuff them down. Rebecca was very thin, had sores on her body, very thin hair and often had diarrhea. She always seemed to have a cold, and her clothes were dirty and tattered. Mrs. Fein testified that Rebecca had made a lot of progress in almost every area since she had been with the nursery. She had gained weight and her speech was better. When she had first come there she hadn’t talked at all, but now she is talking more. At first Rebecca couldn’t walk in a straight line and was always falling down; now she can run much better and can swing. She can display appropriate affection. Mrs. Fein noticed that when Rebecca returned to the nursery after the three week period at Christmas which she had spent with her mother, her behavior had regressed and she was again very aggressive. She was biting and hitting the other children. She would hug the workers and would then begin to shake them and try to hurt them. She seemed hyperactive, had a short attention span and ran around the room knocking down all the toys. She began doing bizarre things like sticking her head in the toilet as she had previously done. Since January 1976 Rebecca had been in a foster home under the custody of the Child Welfare Unit. She appeared somewhat cleaner since she had been in the foster home, but there does not seem to be much difference in her emotional condition or in her relation with the other children. On cross-examination Mrs. Fein admitted that Rebecca had stated: “I want to go home with my Mama and stay there all day.”

Nicki Kuhn, a social worker at Harris County Child Welfare Unit, who had been assigned to the case since February 1976, recommended termination of the parental relationship. She had made one visit to Mrs. Woods’ house. She stated that Mrs. Woods had said that she wanted Rebecca back with her and that she would continue to have Rebecca go to the therapeutic nursery. When asked about her living situation Mrs. Woods stated that she wanted to move; she wanted to move because she didn’t get along with her neighbors.

Mrs. Woods testified on her own behalf. She is 39 years old and has not been able to work due to a heart condition and other ailments. She had not worked for the past ten years. She is receiving welfare payments of $61.50 per month and $50.00 for food stamps. When Rebecca was with her, she was receiving $86.00 per month and $90.00 for food stamps. She then also received $44.00 for rent. She testified that she had gone to the ninth grade. When she had placed herself with the Texas Research Institute of Mental Sciences as an alcoholic, she had been sent to sewing school. She is able to keep up the house, but if she does too much she has to stop and rest. She is a widow and has been an alcoholic since she was 16 years old. She no longer drinks and cannot stand the smell of liquor. On school mornings she had waked Rebecca up at six in the morning, bathed her and fed her cereal or grits, eggs and bacon for breakfast. The school bus came between 8 and 8:30 in time to get Rebecca to school at 9 o’clock. Rebecca ate lunch at school and at 1:15 was picked up to go to the therapeutic nursery school. She stayed there until 3:30 and then was returned home by bus. Mrs. Woods said that Rebecca had a tendency to injure herself; that when another child hit her she would not fight back, and instead would reach up and rake herself across the face, cheeks or legs. “She would scratch herself and I knew it wasn’t normal for a child to maul herself like this and I told Dr. Andróes the way she was acting, and I don’t know the organization, but they sent me out a bunch of papers to fill out, and I filled them out and mailed them in, and sooner or later she was accepted in Children’s Mental Health.” Mrs. Woods admitted that the first time Rebecca had gone to the hospital, she had suffered from malnutrition. She said that Rebecca would eat enough but that even so, she failed to gain weight. She said she asked the doctor why Rebecca didn’t gain weight and he said it was only normal, but that she, Mrs. Woods, knew that it wasn’t. She testified that on the day Rebecca had been picked up by Child Welfare, Mrs. Albracht had told her “to shut my damn mouth and subconsciously I did not love my baby, and I asked her who she to play God, that she didn’t know what was in my mind and heart and she had no right to talk to me in my home.” She testified she could never please Mrs. Albracht; that there was nothing she could do to satisfy her and Mrs. Albracht wanted her to. see a psychiatrist and she had agreed to see one but that Mrs. Albracht never set up an appointment. Mrs. Woods testified that there was mention made of her child being put up for adoption when she went to the Children’s Mental Health Clinic. She testified that she had wanted to cooperate with Child Welfare and to satisfy Mrs. Al-bracht because she knew she had the upper hand but that “the more I tried to satisfy her, the rougher she got on me. And I mean she came down hard on me.” She testified that she had worked easily with previous Welfare workers “because they knew I wanted to learn, but she came in there and was jumping down my throat as soon as she came in.” She stated that she loved Rebecca very much and that she was capable of taking care of her. She takes Darvon for headaches, and Vallium for her nerves; she takes these drugs not for a nervous condition but due to her alcoholic condition. She testified that if she can get up in the morning and take something without having the shakes, she can make it. She has been “on the wagon” about three or four years and is proud of this accomplishment.

Mrs. Joyce Harris, a licensed vocational nurse and a friend and neighbor of Mrs. Woods, testified that Mrs. Woods was capable of taking care of children and took care of her two boys, twelve and nine years of age, five days a week when she worked. She said her children enjoyed staying with Mrs. Woods; that they didn’t want to come home. She said when Mrs. Woods wasn’t feeling well her house was junky, but when she felt good the house looked nice. She said Mrs. Woods can only do a certain amount before she has to sit down and rest due to her heart condition. She testified that, in her opinion, Mrs. Woods was physically able to care for an active five year old child.

Mrs. Dolly Ann Williams, the sister of Mrs. Joyce Harris, lives in an apartment downstairs from Mrs. Woods. She said Mrs. Woods’ apartment was clean except that she keeps her clothes folded up and in a box since she doesn’t have a place to put them. She said Mrs. Woods had kept her children and that her children enjoyed staying with Mrs. Woods. She believed Mrs. Woods to be capable of caring for the children and capable of taking care of Rebecca. She said she did not recall the exact date, but that she was coming upstairs and just as she got to the top stairs she heard Mrs. Albracht say to Mrs. Woods, “Damn it, shut your mouth and wait until I tell you to speak and then you speak.”

Dr. Leroy Andróes, a psychiatrist, had known Mrs. Woods eight or nine years. He testified that she had been in an alcoholic program at the Texas Research Institute of Mental Sciences and that he had first known Mrs. Woods there. Dr. Andróes testified that he had hospitalized Mrs. Woods on several occasions, that she had received treatment for alcoholism and had successfully stopped drinking and motivated herself to come into therapy. After the research program at TRIMS closed, Dr. An-dróes continued to see Mrs. Woods at Ben Taub Hospital and she continued therapy under his direction for a number of years. Dr. Andróes stated that in his opinion Mrs. Woods had done very well in controlling her alcoholic problem. She had made a great effort to straighten out her life. In watching her testify as a witness, he noted that she had asserted much greater control over herself than she would have been able to do at the time he first knew her. He felt she had responded to treatment and that she was capable of taking care of children even though she was not capable of physical work or holding down a job. In his opinion, Mrs. Woods had the capability of caring for her child even though on several occasions she had required hospitalization and had then been unable to care for the child. His observations indicated that Mrs. Woods loved her child without qualification and that she was relating well with the child. Dr. Andróes stated that the communication patterns of blacks were different from whites and that Mrs. Woods had communicated in what amounted to her black language. As a pattern of speech, Mrs. Woods used some aggressive terms, but these were used in “kind of a loving way.” Dr. An-dróes testified that he had done psychotherapy with other blacks and that while their communication might seem strange to a white person, he had learned that “it was kind of a loving way that they talked to each other.” He stated that on visits to his office, Rebecca was clean, considering that she came from a low economic environment and that her dresses were simple but as clean as you might expect. He was permitted to give his opinion, based upon his long observations of Mrs. Woods and her child that he did not believe it would be to the best interest of the child and the mother to have the mother’s parental rights terminated. Dr. Andróes testified that in his opinion Mrs. Woods was capable of bringing up her child properly. He stated that black culture was not the same as whites’ and that Mrs. Woods’ child rearing practices indicated a great deal of black culture. He testified that he could work with Mrs. Woods, Rebecca and the Child Welfare workers; that in his opinion the situation would improve. He testified that medical conditions might exist to make Rebecca appear to be malnourished when nutrition may not have had anything to do with her condition. Dr. Andróes testified that he had not been compensated for recent treatment of Mrs. Woods and that his court appearance was without compensation. He testified that Mrs. Woods was being treated for anxiety and depression but that she did not have psychosis. On the question of Rebecca’s regression after her return to the therapeutic nursery program following the Christmas holidays, Dr. Andróes testified that regression was not necessarily a permanent change and that after several weeks children would become reorganized and “back in harness.” Dr. Andróes concluded his testimony with the opinion that Mrs. Woods was capable of providing stability in the environmental care of her child.

The testimony depicts a mother who is attempting to rear her child under extremely difficult circumstances. She is admittedly an imperfect parent and an ineffective housekeeper. She is an alcoholic with related emotional difficulties, causing periods of anxiety and depression. She has become reliant on drugs to maintain a day to day sense of stability. She is alone, without husband or family; her income is meager and she has no transportation. She has a heart condition which, at least in her belief, prevents her from working and from keeping her house clean and relatively neat. Her child Rebecca is frail, under-developed physically and mentally, and probably lacks proper nourishment on a regular basis. The extent of emotional disturbance of the child can only be a subject of speculation, based upon her reported conduct.

The trial court made three findings of fact upon which it based its judgment that the parental relationship should be terminated. These are stated in the language of the statute. Section 15.02, Texas Family Code.

“4. Dorothy Woods knowingly placed or knowingly allowed Rebecca Elizabeth Woods to remain in conditions or surroundings which endangered the physical or emotional well-being of Rebecca Woods. [Section 15.02(1)(D)]
“5. Dorothy Woods engaged in conduct or knowingly placed Rebecca Elizabeth Woods with persons who engaged in conduct which endangered the physical or emotional well-being of Rebecca Elizabeth Woods. [Section 15.02(1)(E)]
“6. Termination of the parent-child relationship of Dorothy Woods is in the best interest of Rebecca Elizabeth Woods.” [Section 15.02(2)]

In involuntary termination proceedings under Section 15.02 of the Texas Family Code, the State is required to prove one or more of the acts or omissions under Subdivision (1) of that section, and in addition prove, under Subdivision (2), that the termination is in the best interest of the child. Under the State’s allegation in the case at bar, it was required to prove not only that termination would be in the best interest of the child, but that the mother had committed some act or omission under Subdivision (1) which endangered the child’s physical or emotional well-being.

In this State a presumption exists that the child’s interest will best be served by placing custodial responsibility with the natural parent. In involuntary termination proceedings under Section 15.02, the burden is upon the State to rebut this presumption, and the evidence must be clear and substantial. In Re R_D_P_, 526 S.W.2d 135 (Tex.Civ.App. — Dallas 1975, no writ); Hall v. Harris County Child Welfare Unit, 533 S.W.2d 121 (Tex.Civ.App. — Houston [14th] 1976, no writ).

There is an important difference in the nature of the proof required in proceedings for conservatorship and support of children, and in proceedings for the involuntary termination of the parent-child relationship. This distinction is precisely explained by Justice Pope in Wiley v. Spratian, 543 S.W.2d 349, Tex.1976:

“Suits for conservatorship, possession, and support are governed by Chapter 14 of the Family Code and those matters are determined by the ‘best interest’ test. Section 14.07. Those proceedings are different and have different purposes from termination cases. Decrees under Chapter 14 may be modified or changed from time to time, but the parent still retains some rights in and control over a child. A termination decree, on the other hand, is complete, final, irrevocable. It divests for all time the parent and child of all legal rights, privileges, duties, and powers with respect to each other except for the child’s right to inherit. See Section 15.07. The differences in the proceedings justifies the caution with which courts have characteristically considered termination cases.
“Actions which break the ties between a parent and child ‘can never be justified without the most solid and substantial reasons.’ State v. Deaton, 93 Tex. 243, 54 S.W. 901 (1900). Particularly in an action which permanently sunders those ties, should the proceedings be strictly scrutinized. This court has always recognized the strong presumption that the best interest of a minor is usually served by keeping custody in the natural parents. Herrera v. Herrera, 409 S.W.2d 395 (Tex. 1966); Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965); Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963). Mumma says:
The presumption is based upon a logical belief that the ties of the natural relationship of parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible, and, as well, the best atmosphere for the mental, moral and emotional development of the child.
“The natural right which exists between parents and their children is one of constitutional dimensions. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187,14 L.Ed.2d 62 (1965); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The presumptive right of parents is grounded on good policy considerations.
Although ‘natural right’ has developed firm roots in family law, the mere label obviously provides little concrete justification for protecting parents’ interests. Modern theories of child welfare, however, offer persuasive support to parental rights, and suggest that the legal system should generally defer to the wishes of a child’s parents, obliging the state to bear a serious burden of justification before intervention. State Intrusion into Family Affairs: Justification and Limitations, 26 Stanford L.Rev. 1383, 1385 (1974).”

A judgment terminating a parent-child relationship under Section 15.02 cannot be based solely upon the trial court’s determination of what would be in the best interest of the child. Holley v. Adams, 544 S.W.2d 367 (Tex.1976). Where the State has alleged that termination is justified on the basis of Subdivision (1)(D) or (1)(E), it must prove by “solid and substantial” evidence either that the mother knowingly placed or allowed her child to remain in conditions or surroundings which endangered her child’s physical or emotional well-being, or that she engaged in conduct or knowingly placed the child with persons whose conduct endangered her child’s physical or emotional well-being. The evidence in the case at bar does not meet this test. Although it is painfully apparent that the mother failed to meet certain minimal standards of parental behavior considered by today’s society as reasonably appropriate, this failure was just as clearly the result of her basic lack of understanding of her parental responsibilities and of her emotional and physical disabilities.

A parent’s mental state may allow or compel him to engage in conduct which endangers the physical or emotional well-being of his child, and in such event, that conduct is evidence bearing upon the advisability of terminating the parent-child relationship. Carter v. Dallas County Child Welfare Unit, 532 S.W.2d 140,142 (Tex.Civ. App. — Dallas 1975, no writ). However, the harsh and irrevocable remedy of termination is not justified where the evidence shows that a parent’s failure to provide a desirable degree of care and support of the child is due solely to lack of intelligence, training, or misfortune. D_ F_ v. State, 525 S.W.2d 933, 940 (Tex.Civ.App. —Houston [1st] 1975, no writ).

The evidence shows that Mrs. Woods and her daughter Rebecca had a reasonably good emotional relationship, and it is uncon-troverted that each had expressed mutual love and affection. Both Mrs. Woods and her child were making some progress in their relationship to each other and with respect to their day to day living patterns. Each expressed a desire that they be permitted to continue living together as mother and child. Only the testimony concerning the child’s behavior upon her return to the nursery following the Christmas vacation indicates any departure from this line of progress, and the uncontroverted testimony of Dr. Andróes tended to show that such behavior was not unusual and had only temporary significance.

The evidence does not support the trial court’s findings that Mrs. Woods knowingly placed or allowed Rebecca to remain in an environment which endangered her physical or emotional well-being, or that she engaged in conduct or knowingly placed her with persons whose conduct endangered her physical or emotional well-being. On the contrary, the great weight and preponderance of the evidence shows that Mrs. Woods was making an effort to conform with the requirements of the Child Welfare Unit, and that with the assistance of the supporting agencies she and her daughter were making some progress, however slight, in the improvement of their emotional stability and in their living conditions.

The State failed to establish by medical proof that the child’s developmental disabilities were attributable to her environmental surroundings or to her relationship with her mother. The only medical evidence in the record leaves these matters for speculation. Apropos is the statement of Justice Cire in Hall v. Harris County Child Welfare Unit, supra:

“We do not intend to imply that this is not a proper case for termination; however it is clear from the record that the evidence of the physical and emotional ill-health of the children and their mother was not sufficiently developed to satisfy the requirements of clear and convincing proof. Whenever a cause relies heavily, as does this one, on the proof of medical facts, then the party on whom rests the burden of proof must come forward with medical testimony or medical records, or some evidence other than hearsay or the unsubstantiated opinion of witnesses not qualified as medical experts.” 533 S.W.2d 123.

Since the cause will be remanded for further proceedings, it is appropriate to consider Mrs. Woods’ sixth point of error contending that the statutory burden of proof in termination suits is unconstitutional. The statute provides that the court’s findings in such cases shall be based upon a preponderance of the evidence under rules generally applicable to civil cases. Section 11.15, Texas Family Code. Mrs. Woods asserts that the State should be required to prove the elements of Section 15.02 “beyond a reasonable doubt.” The standard of proof required by the statute is constitutional. A requirement that the proof be beyond a reasonable doubt would likely result in detriment to the party who most needs protection, the child. This point is overruled.

In her seventh point of error Mrs. Woods contends that the trial court erred in failing to appoint a counsel for her prior to the show cause hearing and that this omission deprived her of due process as guaranteed by the Constitution. This point was withdrawn by counsel for Mrs. Woods upon oral argument and need not be further considered.

Since the best interest of the child will be affected by this court’s ruling that the judgment must be reversed, the cause will be remanded for further development of the evidence. Hall v. Harris County Child Welfare Unit, supra.

Reversed and remanded.


author: McKAY, Justice.

text:
    Henry A. CANFIELD, Appellant, v. FOXWORTH-GALBRAITH LUMBER COMPANY et al., Appellees.
    No. 974.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 30, 1976.
    Rehearing Denied Jan. 27, 1977.

      Robert Harms Bliss, Dallas, for appellant.
    M. Robert Blakeney, Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, for appel-lees.
   McKAY, Justice.

Appellant, Henry A. Canfield (Canfield) brought this suit for damages against Fox-worth-Galbraith Lumber Company (Fox-worth) and Kenneth D. Adams (Adams) alleging that in the sale of a house and lot in Farmers Branch under a second lien deed of trust foreclosure Adams, as Trustee, refused to apply the proceeds of the sale in accordance with the terms of the deed of trust. Canfield alleged he was entitled to any overage after payment of the second lien by notice of quitclaim deed and assignment from Benny C. Clark and wife, Betty Lou Clark, against whom the foreclosure was made. Foxworth and Adams denied Canfield had any claim against them and alleged that Adams had accounted to the Clarks for any and all interest they may have had, and that the Clarks consented to the payment of the first lien by Adams and waived any further claim. Trial was before a jury and judgment was rendered on the verdict that Canfield take nothing. Can-field’s motion for judgment non obstante veredicto was overruled, and he brings this appeal.

Foxworth was beneficiary under a deed of trust dated February 9, 1966, securing indebtedness from the Clarks in the original amount of $1,250, such indebtedness being evidenced by a promissory note of the same date and the lien covering a lot in Farmers Branch. On November 6, 1973, the total amount due Foxworth by the Clarks was $566.88, including principal and interest. The first lien on the lot was held by Bankers Life and Casualty Company, and on November 6, 1973, the amount owed on such first lien was $11,444.95.

The Clarks were in default to Foxworth on its second lien note and, after posting notices, Adams sold on November 6, 1973, at trustee’s sale, the property in question to Foxworth on its bid of $15,000, with Fox-worth conditioning such bid on receiving a general warranty deed with fee simple title, free and clear of all incumbrances. Fox-worth paid $14,433.12 to Adams at the sale, which amount represented the difference between Clarks’ debt to Foxworth and Fox-worth’s bid. On the day of the sale Adams mailed a check to Bankers Life and Casualty in the amount of $11,444.95 which paid the first lien mortgage, and the remaining balance of $2,988.17 was mailed to the Clarks on November 12, 1973. The trustee’s deed from Adams to Foxworth, dated November 13, 1973, contained a general warranty of title by Adams for and in behalf of the Clarks.

Canfield attended the sale but did not contact any representative of Foxworth, or trustee Adams. He then sought out the Clarks, found them in Tyler, and obtained a quitclaim deed from them for $100.00 which he filed in the Dallas County Deed Records on November 12, 1973. On November 19, 1973, Canfield demanded from Adams by letter and orally by phone the $14,000 overage from the trustee’s sale. On December 1, 1973, on the advice of a lawyer, Canfield obtained from the Clarks an informal instrument purporting to “assign any and all overage” emanating from the Clarks’ deed of trust foreclosure sale “save and except any monies already received by us as a result of the foreclosure of the above property.” Prior to the execution of the “assignment” the Clarks had received the payment from Adams of $2,988.17.

In response to the issues submitted the jury found that Clark consented to the payment by Adams, the trustee, of $11,444.95 to Bankers Life and Casualty Company from the proceeds of the foreclosure sale; that Adams intended to pay the outstanding first lien indebtedness so that he could convey a fee simple title to the purchaser at the trustee’s sale; and that Foxworth intentionally included in its bid an amount sufficient to pay the first lien indebtedness. The record reveals that there were no requests for jury issues from Canfield.

Canfield brings one point of error with four subdivisions. He maintains in his point that the trial court erred in not granting his motion for judgment non obstante veredicto. By his first subpoint Canfield contends that an instructed verdict would have been proper because it was undisputed that the trustee failed to disburse the sale proceeds according to the terms of the deed of trust. We believe this subpoint is without merit.

The language of the deed of trust directing the trustee to sell the property and dispose of the proceeds of the sale reads as follows:

“The said Trustees, or any substitute Trustee, is hereby authorized and empowered, and it shall be his special duty at the request of the above named payee to sell the above described property . . . and after such sale to make the purchaser or purchasers hereunder good and sufficient deeds with general warranty of title in the name of the undersigned herein, binding as well the latter’s heirs, executors, administrators and assigns, and conveying the property so sold to the purchaser in fee simple, and to receive the proceeds of said sale and dispose of same in the following manner:
“First, by paying all the expenses of advertising, sale and conveyance, including a five per cent commission to the Trustees acting, computed on the sale price; and Second, by paying to the holder or holders of the indebtedness herein secured the full amount of principal and interest, and attorney’s fees, if any, due and unpaid on such indebtedness, and Third, by rendering the balance, if any, of such proceeds to the undersigned, or to the latter’s heirs or assigns; and such sale shall forever be a perpetual bar against the undersigned and the latter’s heirs and assigns, and all other persons claiming under any of them.”

As pointed out in Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 675 (1942), and Winters v. Slover, 151 Tex. 485, 251 S.W.2d 726, 728 (1952), “a trustee has no power to sell the debtor’s property, except such as may be found in the deed of trust; and the powers therein conferred must be strictly followed.”

While under the trustee’s deed Adams was authorized, and it was his duty, to sell the property and to execute a deed with general warranty of title in fee simple, he was also authorized, and it became his duty, out of the proceeds of the sale to pay all expenses of the trustee; secondly, to pay the lienholder all principal, interest and attorney’s fees; and thirdly, pay the balance to the owner Clark. Adams sold the property to Foxworth under the foreclosure sale, paid Foxworth $566.88 owing to Fox-worth under its second lien, and paid the balance of $2,988.17 to the Clarks. Canfield claims he is entitled to the funds paid to Bankers Life because he had a quitclaim deed and an assignment from the Clarks, even though at the time the assignment was executed, the Clarks had received and accepted the $2,988.17 as their balance of the proceeds of the sale. Adams and Fox-worth maintain that since Canfield stood in the Clarks’ shoes, and the Clarks by accepting the $2,988.17 had waived any claim to any other funds, the Clarks under these facts had constructively received the $11,-444.95 paid on their behalf to discharge the first lien. Adams and Foxworth further contend that the Clarks, and Canfield as assignee, are estopped to claim the funds paid by Adams to Bankers Life.

Clark testified that he received a letter together with a check for $2,988.17 from Adams and that he, Clark, was surprised to receive it and was satisfied with it because he was no longer liable, and he considered that Adams paid off the first lien for his benefit, and he had no objection to Adams so doing. He further testified that when Canfield came to see him he did not think he had anything of value to sell to Canfield, but that Canfield told him “something was in default on the way that they’re handling or selling the house”, and Canfield wanted Clark to give him a quitclaim deed to the house for $100.00. In further testimony Clark said at that point he did not think his house was worth anything to him, but Can-field told him Foxworth had done something illegal but did not tell him what it was except that it was peculiar; and that he and his wife signed a quitclaim deed to Canfield and Canfield paid him $100.00. Clark further testified that he considered he had a good deal; that he did not tell Canfield whether he had received any money or how much he had received from Adams, and Canfield did not ask, but Canfield told him that if there was any money coming to him other than what he had received it would go to Canfield.

Clark testified further that Canfield visited him again, asked him if he had received any money from the house, but did not ask Clark to pay it to him; that Canfield asked him to sign another agreement and told Clark that he, Clark, “would not receive any more money after you executed it.” Clark further said that if he had known Canfield was trying to make approximately $11,000 out of the transaction he would not have made the conveyance to him. Clark testified that Canfield explained to him that if there was any additional money coming to Clark it would go to Canfield, that is, that if Foxworth owed Clark any more money, Clark was assigning that to Canfield.

From the testimony and conduct it is shown that Clark never objected to the payment to Bankers Life by Adams; that he considered the payment to Bankers Life to have been made on his behalf; that Clark did not consider himself damaged by such payment of the first lien; and that he did not believe he had anything to sell to Canfield because he (Clark) had already received $2,988.17 as his equity. Adams, as Trustee, wrote the Clarks on November 12, 1973, advising them of the foreclosure sale on November 6, 1973, and that the highest bid was accepted for $15,000.00, and enclosed a check to them for $2,988.17 “which is the balance remaining after paying off the first mortgage holder, Bankers Life and Casualty Company, Chicago, Illinois, in the amount of $11,444.95 and Foxworth-Gal-braith Lumber Company’s second lein (sic) in the amount of $566.88.” Adams then added, “I kindly ask that you please notify me if you have any questions regarding this transaction.”

While the Clarks had already executed the quitclaim deed to Canfield before receiving the letter and check from Adams, Canfield never made any demand upon the Clarks for the money.

Our Supreme Court, speaking through Judge Hamilton, said in Massachusetts Bonding and Insurance Co. v. Orkin Exterminating Co., 416 S.W.2d 396, 401 (Tex. 1967):

“Waiver has been frequently defined as an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it. Texas & P. Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652 (1947); Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74 (1946). In Equitable Life Assur. Society v. Ellis, 105 Tex. 526, 147 S.W. 1152 (1912), this Court held that waiver is essentially unilateral in its character; it results as a legal consequence from some act or conduct of the party against whom it operates; no act of the party in whose favor it is made is necessary to complete it. It need not be founded upon a new agreement or be supported by consideration, nor is it essential that it be based upon an estoppel.”

Canfield’s second subpoint contends that there was no evidence to support the submission of the special issues to the jury, and in his third subpoint he says that the issues submitted are neither material nor controlling in that they constitute no recognizable defense in law or in equity. While the use of the word “consented” in issue one would not be our choice, in our opinion there was no error in submitting it. Can-field argues that there can be no consent by Clark to the acts of Adams in disbursing the proceeds of the sale because Clark could not consent to something he had no knowledge of. The issue was designed to ask whether Clark approved of Adams paying the first lien, and the definition of consent by the court was broad enough to include approval. Consent is also defined as a verb “to give assent or approval”, and as a noun “compliance in or approval of what is done or proposed by another” and acquiesce is defined “to accept or comply tacitly or passively.” Webster’s Seventh New Collegiate Dictionary, G. & C. Merriam Co. 1969.

We believe issues two and three are evidentiary issues upon which the evidence is undisputed, and there was no reversible error in submitting them.

We are of the opinion that the issues raised in the record for determination were waiver and ratification. The questions presented by the evidence were whether Clark intentionally relinquished a known right, or his intentional conduct was inconsistent with claiming it, and, if so, whether Canfield was bound by Clarks’ acts.

Ratification and waiver have been used interchangeably many times. “While to relinquish is the gist of ‘waiver’ and to approve is the gist of ‘ratification’, to relinquish a known right is to give validity to the prior act and to approve a prior act is to relinquish a known right.” Jordan v. City of Beaumont, 337 S.W.2d 115, 118 (Tex.Civ. App.-Beaumont 1960, writ ref’d n. r. e.). The word “ratified” has been defined as “the approval by act, word, or conduct with full knowledge of the facts, of the prior act, with the intention of giving validity to such prior acts.” Jamail v. Thomas, 481 S.W.2d 485, 490 (Tex.Civ.App.-Houston [1st Dist.] 1972, writ ref’d n. r. e.).

We believe it is undisputed in the record that the Clarks by their acts and conduct relinquished a known right by failure to object to the payment of the first lien by Adams, and that they approved of such payment by Adams and thereby ratified Adams’ act. In our opinion Clark is es-topped from claiming any of the funds Adams paid to Bankers Life; and, therefore, Canfield, standing in Clark’s shoes, is likewise estopped.

The judgment of the trial court is affirmed.

      . “SPECIAL ISSUE NO. 1.
      “Do you find from a preponderance of the evidence that Mr. Benny C. Clark consented to the payment by the Trustee from the proceeds of the foreclosure sale of the first lien indebtedness in the amount of $11,444.95 to Bankers Life and Casualty Company?
      “ ‘CONSENT,’ as that term is used in this special issue, means a concurrence of wills; voluntarily yielding the will to the proposition of another; acquiesence or compliance therewith; the act or result of coming into harmony or accord.
      “Answer ‘YES’ or ‘NO.’
      “ANSWER ‘Yes.’
      “SPECIAL ISSUE NO. 2.
      “Do you find from a preponderance of the evidence that the Defendant, Kenneth D. Adams, in paying off the first lien to Bankers Life and Casualty Company from the proceeds of the foreclosure sale he conducted on November 6, 1973, intended to pay the outstanding first lien indebtedness on the real property in question in order that he could convey a fee simple title to the purchaser at the trustee sale in accordance with the deed of trust under which he was trustee?
      “Answer ‘YES’ or ‘NO’.
      “ANSWER ‘Yes.’
      “SPECIAL ISSUE NO. 3.
      “Do you find from a preponderance of the evidence that Foxworth-Galbraith Lumber Company intentionally included in their bid at the foreclosure sale an amount sufficient to pay off the first lien indebtendess on the property to Bankers Life and Casualty Company?
      “Answer ‘YES’ or ‘NO.’
      “ANSWER ‘Yes.’ ”