author: GUITTARD, Chief Justice.

text:
    Betty (Minyard) STEIN et al., Appellants, v. William ANDRESS, Jr., et al., Appellees.
    No. 19539.
    Court of Civil Appeals of Texas, Dallas.
    May 25, 1978.
    Rehearing Denied Aug. 18, 1978.

      Betty Minyard Stein, pro se.
    Gordon H. Rowe, Jr., Gardere, Porter & DeHay, Robert E. Burns, Burford, Ryburn & Ford, Dallas, for appellees.
   GUITTARD, Chief Justice.

Betty Minyard Stein has represented herself in this suit against her former attorney, William Andress, Jr., and also against Texas Power & Light Company and its attorney, Robert E. Burns. She asserts that her suit is “a breach of contract case and tort case for fraud,” and also an “attempted theft” and “conspiracy” case. In a trial before a jury the court sustained objections to most of the testimony offered, and when plaintiff did not appear on the second morning of the trial, the court, on motion of defendants, withdrew the case from the jury and rendered judgment for the defendants. We hold that no reversible error is shown.

Plaintiff’s first point complains of the court’s refusal to permit her to develop her testimony. Her pleadings, which were amended and supplemented several times, leave the exact nature of her claim uncertain. She alleges that she had employed defendant Andress to prosecute on her behalf and on behalf of her two children a suit against Texas Power & Light Company arising from an earlier eminent domain proceeding in Denton County instituted by that company without properly making her children parties, they being minors at that time. Andress brought a suit on behalf of the children in the district court of Denton County and recovered a judgment against Texas Power & Light Company dated April 3, 1972, which plaintiff characterizes as a “sell-out.” She accuses Andress and the company of conspiring to deprive her and her children of their property, alleging that without her authority he waived a jury and entered into an agreement with the company concerning the value of the property. She alleges that under this judgment a writ of possession was issued, which improperly described the children’s interest as an undivided one-fourth, rather than an undivided one-fourth for each, and that defendant Andress concealed the writ from her and “attempted to steal” an undivided one-fourth interest. Her pleadings contain allegations concerning unsuccessful attempts to have the 1972 judgment set aside and various other matters concerning her litigation with the company. Her original petition in this case was filed April 5, 1976, more than two years after the date of the judgment which she alleges to have been entered without her authority. In her subsequent pleadings she alleges that all interests of her children, who are now adults, have been assigned to her and that she is prosecuting this suit on her own behalf.

Defendant Andress answered by general denial and a plea of limitation. In an attempt to require plaintiff to make a more definite statement of her claims, he served on her a request for admissions. Answering this request, plaintiff denied under oath that her cause of action was based on a breach of contract of employment, either oral or written, denied that a breach of contract occurred on April 3, 1972, and denied that her cause of action was based on the negligence of defendant Andress.

At the trial plaintiff made repeated attempts to present evidence of an oral contract of employment with Andress and various acts which she alleged to have been a breach of such a contract. Defendants objected to all of this testimony on the ground that it would have been contrary to her sworn answers to defendant’s request for admissions. These objections were sustained. Plaintiff made no application for leave to amend or withdraw her sworn answers to the request and, apparently, does not recognize that without such amendment or withdrawal the answers are binding on her and bar her from introducing contrary proof. Neither does plaintiff recognize that if her pleadings were ever sufficient to state a cause of action, her sworn answers to the request for admissions in effect left her with no basis for her claim for damages for breach of contract. Her further allegations of fraud, conspiracy, and “attempting to steal” an undivided one-fourth interest in the property are insufficient in themselves to provide a basis on which to submit issues to the jury because she wholly failed to allege that any of these matters actually resulted in legal damage. Consequently, the court property excluded the evidence that plaintiff sought to elicit.

The point that has given us the most concern is plaintiff’s complaint of the action of the judge on September 7, 1977, the second day of the trial, in proceeding in plaintiff’s absence to withdraw the case from the jury and render judgment for defendants. The circumstances shown by the record are unusual. Toward the end of the first day of the trial, plaintiff protested that she was unable to prove her case under the judge’s rulings, which prevented her from offering evidence of the alleged oral contract and its breach. She was directed to proceed to other lines of interrogation. The court recessed until nine o’clock the following morning. At that hour the court convened, but plaintiff was not present. The court recessed and convened again at half past nine. The plaintiff still did not appear. Counsel for defendants announced that they desired to present a motion in the absence of the jury. The court heard the motion, dismissed the jury, and rendered judgment for defendants. The motion does not appear in the record and the judgment does not recite its grounds. The judgment was reduced to writing and signed on September 13, 1977.

On September 19, plaintiff filed a sworn “motion to set aside order of dismissal and to reinstate case,” in which she alleges that she was ill on the morning of September 7 in that both legs were paralyzed and her toes were crossed, that she had gone to a hospital to obtain medical treatment; that the doctor diagnosed her condition as tension and anxiety and gave her a prescription for relief; that while at the hospital she telephoned the court asking that the trial be delayed until she could see the doctor and get to the court; that she talked to the bailiff and the deputy clerk, but was not allowed to talk to the judge in the absence of opposing counsel; and that she arrived in court forty-five minutes late, when she was advised that the jury had been dismissed ten minutes earlier. In her brief, plaintiff asserts that she attempted to obtain affidavits from the bailiff and deputy clerk concerning her request by telephone that the trial be delayed until she could obtain medical treatment and could get to court, but that they refused to sign such affidavits.

After careful consideration of the record, we conclude that no abuse of the trial court’s discretion is shown. In order to complain of the court’s proceeding with the trial in her absence, plaintiff has the burden of showing by her sworn motion for new trial not only an excuse for her absence but also a meritorious claim. Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966). If it be conceded that her motion is sufficient to show an excuse for her absence, it nevertheless wholly fails to show that if the court had waited for her return, she would have been able to present evidence that would have supported the submission of fact issues to the jury. Consequently, we hold that the court did not err in overruling her motion.

We have examined the other points in appellant’s brief and have determined that none present reversible error.

Affirmed.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    Allen Gene BUNDRICK et al., Appellants, v. The FIRST NATIONAL BANK OF JACKSONVILLE, Texas, Appellee.
    No. 1141.
    Court of Civil Appeals of Texas, Tyler.
    June 8, 1978.
    Rehearing Denied July 21, 1978.

      Paul Smith, Dennis G. Brewer, Inc., Irving, Don Krause, Bayne, Snell & Krause, San Antonio, for appellant.
    Gordon S. Thrall, Norman, Hassell, Spiers, Holland & Thrall, Jacksonville, for appellee.
   MOORE, Justice.

This is a suit on a note involving primarily the application of Chapter 4 of the Texas Consumer Credit Code, Tex.Rev.Civ.Stat. Ann. art. 5069-4.01 et seq., hereinafter referred to as the “Code.”

Appellee, The First National Bank of Jacksonville, Texas, brought suit against appellants, Allen Gene Bundrick and Jean Doughtie, to recover upon a promissory note executed on March 11, 1976, in the amount of $5,820. Appellants answered with a general denial and filed a counterclaim alleging that the interest charged by the bank was usurious. They further alleged that the note contained various provisions which constituted violations of the Code and that appellee’s sale of appellants’ automobile was in violation of Tex.Bus. & Comm.Code sec. 9.504(c). Appellants prayed for a recovery of double the amount of the interest and default charges contracted for and a reasonable attorney’s fee as provided in sec. 8.01 of the Code, and also sought recovery under the penalty provisions of sec. 9.507(a) of the Tex.Bus. & Comm.Code. After a trial before the court, sitting without a jury, the trial court rendered judgment in favor of the bank for the amount found to be due and owing on the note, together with interest at the rate of 14% per annum and an attorney’s fee in the amount of $1,000. As to appellants the court rendered a take-nothing judgment on their counterclaim. Appellants duly perfected this appeal.

We reverse and remand.

At the request of appellants, the trial court filed findings of fact and conclusions of law. A statement of facts also accompanies the record.

The record reveals that on May 3, 1974, appellants executed a note and security agreement to the bank in the amount of $6,630, in order to purchase a 1973 Plymouth automobile. Not being able to meet their monthly payments, appellants returned the automobile to the bank in December 1974. After repairing the automobile the bank made an effort to sell it and, upon being unable to sell the same at a private sale, finally turned it over to a concern which was in the business of conducting auction sales of used ears. The automobile was sold at public auction for $1,262.50. After crediting such amount on the note in default, together with expenses for repairs, the bank executed a renewal note in the amount of $5,909 on March 7, 1975. This note was subsequently renewed on March 11, 1976, and is the one made the basis of this suit. This final note, number 8046, is in the amount of $5,820. It is payable in twelve consecutive monthly installments of $150 each, commencing on or before April 30, 1976, with a final “balloon” payment maturing on March 10, 1977. It recites that the interest thereon had been pre-computed and was included in the face amount of the note as add-on interest. Under the “STATEMENT OF LOAN” column the note recites: Previous balance renewed —$5,119; Termination fee — $2.00; other— $10.00; Subtotal — $5,131; Credit life insurance — $68.00; Amount financed — $5,199.00; Finance charge — $621.00; Total of payment —$5,820.00; Annual percentage rate^ — 14%. No payments were ever made on the note. The bank accelerated maturity by filing suit on the note November 9, 1976.

Appellants contend in their first and second points that the loan contract in question is usurious and that the bank therefore is not entitled to recover any interest thereon. They further contend that the judgment rendered by the trial court is erroneous because it awards the bank a recovery for usurious interest. Specifically, they argue that the trial court erred in awarding the bank the full face amount of the note, because after acceleration the bank breached its duty to rebate the unearned interest thereon, causing the note to become usurious. They also argue that the provision in the loan contract allowing the bank to charge 14% interest on past due principal and interest after default amounts to a violation of sec. 4.01(5) of the Code, which permits only a one-time default charge of five cents on a dollar.

The note in question provides that upon acceleration “the unpaid principal of this note and all accrued interest shall at once become due and payable and shall bear interest at the highest legal contract rate from the date of such default . . . After appellants defaulted on the first seven payments, the bank accelerated maturity by filing suit on the note November 9,1976. In its petition the bank did not seek to recover the full amount of the note, but sought only to recover for the principal in the sum of $5,199.00, plus interest thereon at the rate of 14% per annum from the date of the making of the note. Nowhere in its petition did the bank seek to recover the full $621.00 finance charge stipulated in the note. Furthermore, the bank could not have brought suit for the full face amount of the note because, according to the terms of the contract, only the unpaid principal and the accrued interest would become due and payable upon acceleration. Since the loan contract does not permit the bank to accelerate the unearned interest charged in the note, the acceleration of the note would not result in usury. Hence, the contract is not in violation of the Code. See Southwestern Investment Co. v. Mannix, 557 S.W.2d 755, 765 (Tex.1977). As the bank only sought judgment for the unpaid principal and accrued interest thereon, the contention that the bank breached a duty to rebate unearned interest is without merit.

We are not in accord with appellants’ contention that the bank contracted for usurious interest on the ground that the note provided that “all past due principal and interest shall bear interest from the date it is due until paid at the highest legal contract rate.” The highest legal contract rate of interest on a loan is 10%. Tex.Rev.Civ.Stat.Ann. art. 5069-1.04. Appellants argue that the maximum amount allowed by the Code after default is five cents for each one dollar of any scheduled installment which the debtor fails to pay. We do not agree. The statutory provision relied on by appellants, sec. 4.01(5), authorizes a lender to make a one-time charge of five cents for each dollar of any installment which the debtor fails to timely pay. This provision, however, does not affect the right of a lender to contract for interest after maturity. It is generally held that parties to a contract validly may agree that past due principal and interest shall bear the highest lawful rate, whether the obligation matures in the ordinary course according to the terms thereof, or by reason of acceleration. 45 Am.Jur.2d Interest and Usury sec. 65, p. 61. Such a provision here does not amount to a delinquency charge for a late payment, but rather an interest charge for the detention of money. It has been held that this type of provision does not render the contract usurious. Travelers Ins. Co. v. Lee, 94 S.W.2d 777 (Tex.Civ.App.—Waco 1936, no writ history).

We are of the opinion, however, that the judgment is erroneous. The bank sought judgment only for the principal in the amount of $5,199 plus accrued interest from date until judgment. The trial court nevertheless granted judgment on the note for $5,816.71 (the face amount less a $3.29 overcharge on insurance premiums) thereby treating the note as if the same had matured by its own terms on March 10, 1977. The court then granted the bank interest at the rate of 14% from March 11, 1977, to date of judgment. In so doing the court ignored the fact that the bank accelerated maturity by filing suit on November 9, 1976. Under the pleading and the loan contract, we think the court should have granted the bank judgment for the $5,199 orincipal sued for, plus accrued interest at che rate of 14% per annum until November 9, 1976 (the date of acceleration) plus the highest legal contract rate of 10% thereafter until judgment. Further, we think evidence should have been adduced as to the specific amount of the pre-judgment interest so that the court could have entered a judgment for a sum certain. Ordinarily, a reformation of the judgment would be in order, but since the judgment must be reversed for the reasons hereinafter stated reformation is not necessary. ,

By points three and four appellants contend that the trial court erred in denying them a recovery on their counterclaim because the bank contracted for attorney’s fees in the event of default in violation of sec. 4.01(7) of the Code. Appellants argue that the Code prohibits contracting for attorney’s fees except for those assessed by a court. They contend that by contracting in note 8046 that the appellants were to pay all costs of collection in the event the note was placed in the hands of an attorney for collection and were to pay attorney’s fees of not less than 15% in the event the note was sued upon or established in any court, probate or bankruptcy proceeding, the bank violated the Code and was therefore subject to the penalty provisions provided in sec. 8.01.

The provision of the note providing for attorney’s fees reads as follows:

“It is further agreed that if this note shall be placed in the hands of an attorney for collection or for the purpose of being sued upon or established in any manner in any Court, probate or bankruptcy proceeding, then in either of said events the makers, endorsers, and guarantors hereof promise to pay all costs of collection, including a reasonable attorney’s fee to be not less than fifteen percent (15%) of the amount then due and payable.”

Appellants contend that contracting for attorney’s fees in this manner is in violation of sec. 4.01(7) of the Code, which reads as follows:

“In addition to the authorized charges provided in this Chapter no further or other charge or amount whatsoever shail be directly, or indirectly, charged, contracted for, or received: This includes (but is not limited by) ail charges such as fees, compensation, bonuses, commissions, brokerage, discounts, expenses and every other charge of any nature whatsoever, whether of the types listed herein or not. Without limitation of the foregoing, such charges may be any form of costs or compensation whether contracted for or not, received by the lender, or any other person, in connection with (a) the investigation, arranging, negotiation, procuring, guaranteeing, making, servicing, collecting or enforcing of a loan; or (b) for the forbearance of money, credit, goods or things in action; or (c) for any other service or services performed or offered. However, the prohibition set out herein shall not apply to amounts actually incurred by a lender as court costs, attorney fees assessed by a court . . . .” (Emphasis supplied.)

Our courts have traditionally recognized the right of the parties to contract for attorney’s fees in the event of default. At the time sec. 4.01(7) became the law, the only method of charging or collecting for attorney’s fees was by contract.

The statute in question prohibits a lender from charging, contracting for or receiving any fees whatsoever in connection with the enforcing or collecting of a loan. Having laid down such prohibitions the Legislature, no doubt, recognized that such language might be construed to prevent a lender from receiving attorney’s fees which were awarded by a court. To remedy the situation the Legislature made it clear that the prohibitions were not intended to apply to attorney’s fees when it declared that the prohibitions mentioned in the statute do not apply to a lender who collected on a judgment for attorney’s fees assessed or awarded by a court. Contrary to appellants’ contention, we do not believe the proviso means that the Legislature intended to prohibit all contracts for attorney’s fees except for those fees “assessed by a court.”

It must be presumed that the Legislature, in enacting the proviso, recognized the right of the parties to contract for attorney’s fees in some amount because, in the absence of a contract, a court would not be authorized to award attorney’s fees, and there would be no necessity for such proviso. Despite this, the Legislature did not undertake to regulate the terms of the contractual arrangement. No restriction was placed on the right to contract. Just because the Legislature provided that a lender could receive attorney’s fees assessed by a court without being liable for a penalty, it does not mean the Legislature intended to say that all contracts for attorney’s fees must be limited in amount to that “assessed by a court.” Consequently, we think the Legislature intended to leave the parties free to contract for a specified amount of attorney’s fees. The result is that even though the statute leaves the lender free to contract for some specified amount of attorney’s fees, he is prohibited from charging or receiving the fees contracted for, unless such fees are assessed or rendered by a judgment of the court. Thus, we do not believe the bank’s contract for attorney’s fees violates the statute, because there is no legislative mandate fixing the amount that may be contracted for. The statute is penal in nature and, for that reason, we would not be authorized in expanding its scope by judicial interpretation to hold that all contracts not limited to attorney’s fees “assessed by a court” constitute a violation of the Code.

We are of the opinion, however, that in a different respect the contract is in violation of sec. 4.01(7), as contended by appellants. That is, the bank contracted for “all costs of collection” over and above the stipulated attorney’s fees. The statute prohibits contracting for costs of collection other than attorney’s fees. Consequently, this provision in the contract renders the bank liable for the statutory penalties provided in sec. 8.01.

In their fifth point, appellants contend that the court erred in denying them a judgment on their counterclaim, because in note 8046 the bank made unauthorized charges of $10.00 to cover mailing costs and $2.00 for a coupon book in violation of sec. 4.01(7), supra. The note shows on its face that such extra charges were made, and the bank does not argue to the contrary. We sustain this contention.

Under the facts in the present case, the only charges authorized under the provisions of sec. 4.01 et seq. are interest charges and late charges, as well as premiums on credit life insurance, court costs, attorney’s fees, filing fees, storage and sale expenses and fees for noting a lien. Neither the $10.00 charge nor the $2.00 charge is authorized by the statute. Not being authorized by sec. 4.01 et seq., it follows that the making of such charges constitutes a violation of sec. 4.01(7) which prohibits unauthorized charges, subjecting the bank to liability under sec. 8.01.

Under points six through eight appellants contend that the trial court erred in denying them a judgment on their counterclaim because the bank made an overcharge of $3.29 on life insurance premiums. We find no merit in this contention.

Section 8.01 provides that there shall be no liability for a violation of Subtitle 2 which results from an accidental and bona fide error. It is undisputed that the bank made the alleged overcharge. While the bank did not plead that the overcharge was a bona fide error the issue appears to have been tried by consent. Ronny Lee, Vice President of the bank, testified without objection that the $3.29 overcharge was the result of an error made by the lending officer who handled the transaction. The trial court found that the overcharge was inadvertently made and amounted to a bona fide error. Appellants were credited with the amount of the overcharge in the judgment. As we view the record the testimony of the bank’s witness constitutes some evidence of probative force showing that the overcharge was the result of a bona fide error. The cases are legion holding that if there is any evidence of probative force to support the trial court’s findings, such findings will not be disturbed on appeal. Points six through eight are therefore overruled.

By the ninth point appellants contend that the court erred in denying them a judgment upon their counterclaim because the bank failed to disclose, in dollars and cents, the total amount of all the charges included in the loan in violation of sec. 4.03(l)(h) of the Code.

Sec. 4.03 of the Code provides that when a loan is made under this chapter the lender shall deliver to the borrower a copy of the note and all other documents signed by the borrower and a statement in writing in the English language showing the following:

“(h) the total amount, in dollars and cents, of all the charges included in the amount of loan.
“If the note or loan contract shows the information required above, a copy of such note or loan contract may be delivered rather than a separate statement.”

Thus, a lender may comply with the disclosure requirement either by making such disclosure on the note itself, or by delivering to the borrower a statement in writing in the English language making such disclosure. While the note in question fails to make such disclosure, there is no evidence showing that the bank failed to furnish appellants a separate statement in writing in the English language showing the total amount in dollars and cents of all the charges included in the amount of the loan. Consequently, appellants failed to discharge their burden of proving that the bank failed to comply with the statute. The point, therefore, is overruled.

By the tenth and final point, appellants contend that the trial court erred in denying them a recovery on their counterclaim, because the bank failed to give them notice of the time and place of the sale of the automobile in violation of Tex.Bus. & Comm.Code sec. 9.504(c). Appellants maintain that such violation entitles them to recover under the penalty provisions set forth in sec. 9.507(a) of the Tex.Bus. & Comm.Code. We find no merit in this con-' tention.

The evidence shows that after appellants fell in arrears on their payments on the original note, they delivered the automobile back to the bank, which advertised it for sale but could not find a buyer. The bank then delivered the automobile to a concern known as the East Texas Automobile Auction, where it was sold at a public auction for the sum of $1,262.50. It is undisputed that the bank did not give appellants notice of the time and place'of the sale. After the sale the bank credited appellants’ note with the amount received and called on appellants for the payment of the deficiency. Rather than paying the deficiency, appellants executed a renewal note, which over a year later was renewed a second time and made the basis of this suit.

Sec. 9.507(a) of the Tex.Bus. & Comm. Code provides as follows:

“ . . . If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this subchapter. If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus 10% of the principal amount of the debt . . . .” (Emphasis supplied.)

The bank adduced testimony showing that the East Texas Automobile Auction, where the automobile was sold, was in the business of selling used cars on a regular basis and conducted a public sale each week which was attended by many bidders throughout the area. Further, the bank adduced testimony showing that the price received at the sale represented the cash market value of the automobile. Appellants did not offer any evidence tending to show that the manner or method of the sale of the automobile was commercially unreasonable, or that the price received for the automobile was not the best available price. Neither did they offer any evidence as to cash market value of the automobile at the time of sale.

In short, appellants did not offer any proof showing that they sustained any loss or damages by reason of their failure to receive proper notice of the sale. Under sec. 9.507(a) the recovery of damages is measured by the economic loss sustained by reason of a failure to comply with the provisions of the subchapter. We hold appellants failed to discharge their burden of proving that the lack of notice caused them to suffer any loss.

It may be argued that under the statute, where the collateral is consumer goods, no proof of loss need be shown in order to recover penalties for the failure to give proper notice. Consumer goods is defined by sec. 9.109(1) of the Tex.Bus. & Comm.Code as goods “used or bought for use primarily for personal, family or household purposes.” We find no evidence whatsoever in this record showing what the automobile was bought or used for. Consequently, appellants must be held to have failed to discharge their burden of establishing that the automobile was in fact consumer goods. See Hensley v. Lubbock National Bank, 561 S.W.2d 885, 892 (Tex.Civ.App.—Amarillo 1978, no writ).

Further, we think appellants waived their right to complain of the lack of notice by voluntarily executing note number 8046 covering the deficiency due and owing on the previous underlying notes, with full knowledge of the fact that the bank had sold the automobile without proper notice to them over a year before.

For the foregoing reasons we hold appellants cannot recover on their counterclaim for their failure to receive proper notice of the sale. The tenth point is overruled.

This brings us to the question of what disposition should be made of the case. We recognize the rule that this court has the duty to render such judgment as the court below should have rendered. Rule 434, Tex.R.Civ.P. We also recognize the rule that where the record shows that the plaintiff is entitled to recover and defendant is likewise entitled to recover on a counterclaim, as here, the court should strike a balance and render a judgment for the net amount in favor of one of the parties. 4 McDonald Texas Civil Practice, sec. 17.09.3, pp. 69-70 (1971). Upon the record before us, we have concluded that there is no way that this court can strike a balance and render judgment for one of the parties due to the fact that: (1) the trial court erroneously refused to render judgment in favor of appellants on their counterclaim for the penalty and a reasonable attorney’s fee as provided for in sec. 8.01 of the Code, and (2) the approach used by the court in rendering the judgment on the note was erroneous, as explained above, and as a result the prejudgment interest thereon must be re-computed and a new judgment entered thereon. Because of the factual matters left to be determined, which can only be made by the trial court, we are not in a position to render a judgment in the case.

There being reversible error in the case, and absent a proper basis for rendition of judgment by this court, we have concluded that the case was not fully developed and that, in the interest of justice, the entire case should be reversed and remanded to the trial court.

Reversed and remanded.

      . Section 8.01 was revised and enlarged in 1977. Plaintiffs, however, brought suit to recover under the original penalty provisions enacted in 1967, to-wit:
      “Any person who violates this Subtitle by contracting for, charging or receiving interest, time price differentia! or other charges which are greater than the amount authorized by this Subtitle, or by failing to perform any duty specifically imposed on him by any provision of this Subtitle, shall forfeit to the obligor twice the amount of interest or time price differential and default and deferment charges contracted for, charged or received, and reasonable attorneys’ fees fixed by the court, provided that there shall be no penalty for a violation which results from an accidental and bona fide error.”


author: CADENA, Chief Justice.

text:
    David SALINAS, d/b/a Acme Body Shop, Appellant, v. Joe LEVRIE et al., Appellees.
    No. 15919.
    Court of Civil Appeals of Texas, San Antonio.
    June 21, 1978.
    Peter Torres, Jr., San Antonio, for appellant.
    William R. Lozano, San Antonio, for ap-pellees.
   CADENA, Chief Justice.

Defendant, David Salinas, d/b/a Acme Body Shop, appeals from a judgment, following a nonjury trial, awarding plaintiffs, Joe Levrie, and Dean & Company, a corporation, judgment in the amount of $2,220.00 for conversion of an automobile, plus $1,000.00 as attorney’s fees.

Prior to June 24, 1975, Levrie purchased a Chevrolet Suburban motor vehicle, the rear end of which had been damaged. Dean & Company advanced the money which Levrie used to purchase the car and asserts a security interest in the vehicle.

Levrie, a dealer in used cars, purchased the vehicle in question in Pleasanton, Texas, following negotiations with a Chevrolet dealer in that city. The owner of the vehicle, Raul Nunez, endorsed the certificate of title to Levrie, who delivered it to Dean & Company. Levrie did not obtain a certificate of title showing him to be the owner of the vehicle and naming Dean & Company as a lienholder.

On or about June 24, 1975, Levrie also owned another Chevrolet Suburban vehicle which apparently, had suffered damage to the front end. It was Levrie’s plan to do a “clip job,” using the undamaged rear end of the one vehicle and the undamaged front end of the vehicle in question and welding the two undamaged portions together to form one Suburban vehicle. It is undisputed that Levrie and Salinas entered into a contract according to which Salinas was to do the required work for $450.00. According to Levrie, the agreement was to the effect that Salinas was to do not only the “clip job” but also to do the necessary painting and return the vehicle to Levrie in “running order.” Salinas testified that his only contractual obligation was to do the “clip job.”

Levrie delivered the two damaged vehicles to the body shop operated by Salinas. According to Levrie, Salinas never completed all of the work which he had undertaken to perform, since Salinas had merely joined the two undamaged portions of the vehicles together. Salinas testified that he had done all that was required of him under the agreement and that when he had completed such work he notified Levrie to pick up the vehicle, but that Levrie refused to do so, leaving the car on the premises owned by Salinas, and refusing to pay, until about a year after Salinas had completed the work.

Levrie testified that, although Salinas had failed to perform fully his obligations under the contract, Levrie had found a customer who was willing to purchase the car; when Levrie attempted to pick up the vehicle, offering to pay Salinas the $450.00 in cash, Salinas refused to deliver the vehicle unless Levrie paid storage fees in the amount of $3.00 per day. Both Levrie and Dean & Company refused to pay storage fees.

In answer to the suit for conversion, Salinas alleged that he had foreclosed his mechanic’s lien because of Levrie’s failure to pay the $450.00 representing the cost of the repairs and also foreclosed his warehouseman’s lien based on Levrie’s failure to pay storage fees in the sum of $900.00. Salinas acquired a certificate of title showing Acme Body Shop as the owner of the vehicle.

There is evidence to the effect that Lev-rie and Salinas had dealt with each other on prior occasions and that Salinas had never charged storage fees although, according to Salinas, Levrie habitually failed to pick up the vehicles on which Salinas had worked at the time that they were ready. The evidence shows that Salinas kept the vehicle outdoors behind his building.

The trial court filed no findings of fact.

In his first point of error, Salinas urges that the trial court erred in overruling his “motion for instructed verdict” because “there was sufficient evidence to substantiate a directed verdict for” Salinas.

At the conclusion of plaintiff’s testimony, Salinas orally moved for a “directed verdict” as against Dean & Company because lack “of compliance of [sic] Article 6687-1 of our Civil Statutes and particularly in those provisions, Judge, which calls [sic] for a certificate of title being applied for, has no exceptions to dealers that I can see and the Statute says further in Section 51, ‘It shall hereafter be unlawful for a person, * * * either by himself or through any agent, to offer for sale or to sell or offer security for any obligation, any motor vehicle * * * without then and there having in his possession the proper receipt of or certificate of title covering the motor vehicle so offered * * Subsequently, in presenting the motion, counsel for Salinas also included the claim of Levrie in his motion for “directed verdict.”

In support of his first point, Salinas argues only that his mechanic’s lien is superi- or to any lien which might be asserted by Dean & Company. A review of the evidence which had been introduced at the time Salinas made his motion “for directed verdict” precludes the conclusion that, at that point, it had been established, as a matter of law, that Salinas had a lien of any nature which could be given priority to the lien asserted by Dean & Company. Defendant’s first point, raising as it does, the sole question that, at the conclusion of plaintiff’s evidence, defendant was entitled to judgment as a matter of law, must be overruled.

In his second point, Salinas urges that the evidence was legally and factually insufficient to support the judgment in favor of plaintiffs. Part of this argument rests on the theory that Salinas was entitled to a mechanic’s lien on the vehicle in question. The evidence was sharply conflicting on the question of whether Salinas had performed the work called for under his contract with Levrie. In the absence of findings of fact, we must presume that the trial court made all findings which find support in the evidence and which are necessary to support its judgment. Eaton v. Husted, 141 Tex. 349, 172 S.W.2d 493 (1943). The evidence in this case is clearly sufficient to support the implied finding that Salinas did not perform the work called for by the contract. The question of substantial performance by Salinas is not in the case.

In Texas Automotive Dealers Ass’n, Inc. v. Harris County Tax Assessor-Collector, 149 Tex. 122, 229 S.W.2d 787, 790 (1950), our Supreme Court said that the proper evidence of title for a dealer with a dealer’s license may be a certificate of title or license not in his name except by endorsement. Here, Levrie was a dealer and since he paid for the vehicle in question with money furnished by Dean & Company and had taken the certificate of title from Nunez by endorsement and turned it over to Dean & Company, title to the vehicle in question was in Levrie, with a lien in favor of Dean & Company. First National Bank in Big Spring v. Conner, 320 S.W.2d 391, 392 (Tex.Civ.App.—Amarillo 1959, writ ref’d n. r. e.).

Since the evidenced sufficient to support a finding of title in Levrie and a security interest in favor of Dean & Company, and since, under the evidence, the trial court was justified in concluding that Salinas had not done the work called for by the contract and, therefore, was not entitled to a lien, the judgment in favor of Levrie and Dean & Company must be affirmed.

There is evidence to the effect that the reasonable market value of the vehicle in question was $3,000.00 and that the reasonable value of the services rendered by attorney for plaintiffs was $1,250.00. The judgment, based on a finding that the value of the vehicle was $2,220.00 and that the reasonable value of services rendered by plaintiff’s attorney was $1,000.00, is supported by the evidence. Defendant did not, in his pleadings, seek to recover for the reasonable value of the services performed by him, nor is there any evidence relating to the value of such services.

The judgment of the trial court is affirmed.


text:
    George H. CORNELL, Appellant, v. Lois J. CORNELL, Appellee.
    No. 15946.
    Court of Civil Appeals of Texas, San Antonio.
    June 21, 1978.
    David L. Hooper, Abilene, for appellant.
    P. Terry Callahan, San Antonio, for ap-pellee.
   CADENA, Chief Justice.

George H. Cornell, Jr., referred to in this opinion as defendant, appeals from an order of a district court of Bexar County modifying an order of support entered at the time that defendant and plaintiff, Lois J. Cornell, were divorced in 1966. Neither defendant nor his attorney appeared at the trial.

Plaintiff’s petition, seeking modification of the prior order which obligated defendant to pay $170.00 per month for the support of the four minor children of the parties until the youngest of the children reached age 18, gave the names of the three children who were less than 18 years of age at the time such petition was filed. Plaintiff further alleged that the “circumstances of the children or a person affected by the order * * * providing for their support * * * have materially and substantially changed since the entry of the order, and the support payments previously ordered should be increased.” Plaintiff also sought recovery of attorney’s fees.

In his answer, defendant alleged that his circumstances since entry of the 1966 order “have not substantially and materially improved,” and that he lacks the ability to pay any greater sum for the support of the children. In his answer, after pointing out that one of the four children had attained his 18th birthday, defendant asked that the child support payments be reduced to $42.50 per month for each of the remaining three children “until such time as such children attain the age of” 18.

The court entered an order which, among other things, requires defendant to pay the sum of $350.00 per month until the youngest child of the parties reaches age 18.

The court filed findings of fact, including the following: (8) The children are older than they were in 1966; (9) Expenses incurred by plaintiff in raising the children have increased “and judicial notice is taken of the fact that the general cost of living has risen since August 1,1966.”; (10) Housing expenses are increasing for the children; (11) The children need and will need medical and dental care; (13) School costs are increasing; (14) Plaintiff desires to provide the children with funds for special training such as their agricultural projects at school; (15) Plaintiff’s financial condition has worsened; (16) Defendant’s financial condition has improved.

Each of the parties propounded written interrogatories to the other prior to the trial. The answers to such interrogatories were not introduced into evidence. Plaintiff identified the interrogatories that were propounded to her and her answers, and her attorney stated: “At this time we would offer Plaintiff’s Exhibit 3 into the record.” Exhibit 3 was identified by plaintiff as the interrogatories. She identified the instrument containing her answers as Exhibit 2, but Exhibit 2 was not offered for admission and the record does not reflect that the court admitted either Exhibit 2 or Exhibit 3. Neither Exhibit 2 nor Exhibit 3 appears in the Statement of Facts. ,

The interrogatories propounded to defendant were not identified, offered or admitted. The same is true of defendant’s answers to such interrogatories.

Under these circumstances, the interrogatories and answers cannot be considered as evidence. Richards v. Boettcher, 518 S.W.2d 286 (Tex.Civ.App.—Texarkana 1974, writ ref’d, n. r. e.). They cannot be considered as evidence in support of the judgment. Barnwell v. Fox & Jacobs, 469 S.W.2d 199 (Tex.Civ.App.—Dallas 1971, no writ).

With reference to plaintiff’s financial condition, she testified that at the time the divorce was granted in 1966 she was making “less money” than she was earning at the time of the hearing in this case. There is no evidence concerning her income in 1966 nor her income in 1977, so that it is impossible to determine the extent to which her earnings have increased.

Plaintiff did testify, by answering “yes” to counsel’s question, that she did “feel that the circumstances of the children” and her circumstances as managing conservator “have greatly, and materially and substantially changed since the entry of that divorce decree order back in 1966.”

Plaintiff testified that she was able to foresee expenses she will incur in the future, such as dental expenses, projects and trips in connection with the “second boy’s” agricultural project, and an increase in the rent. She stated that she could not, “at the moment”, afford to pay for “these things.”

There is no evidence supporting any conclusion concerning the financial status of defendant. Plaintiff testified, in answer to a question inquiring whether she “felt” that defendant is able to contribute more than $170.00 a month, “I think he could.” She also testified that defendant and his present wife have “over $19,000.00 on deposit in a savings and loan institution.” However, it is clear that she was merely testifying on the basis of what she called her “review” of the records of the savings association which had been subpoenaed. These records were not introduced "into evidence. It is, therefore, clear that the testimony concerning the nature of bank deposits by defendant and his present wife is rank hearsay without probative value. Plaintiff did testify that defendant is earning more than he did in 1966, but there is no indication concerning the increase in his earnings.

The following are the only conclusions which find support in the evidence: (1) Plaintiff’s income is greater than it was in 1966; (2) Defendant’s income is greater than it was in 1966; (3) Plaintiff’s income, and her ability to contribute toward the support of the children, is unknown; (4) Defendant’s income and his ability to contribute to the support of the children, is unknown; (5) Since plaintiff and defendant were divorced in 1966, defendant has remarried; (6) Defendant, a retired service man, has arranged for the medical needs of the children to be furnished by the United States government.

The evidence is clearly insufficient to support the increase in the child support payments from $170.00 per month to $350.00 per month.

The judgment of the trial court is reversed, and the cause is remanded for a new trial.


author: WARD, Justice.

text:
    The RELIABLE LIFE INSURANCE COMPANY, Appellant, v. A. W. WASHINGTON, Appellee.
    No. 6701.
    Court of Civil Appeals of Texas, El Paso.
    June 21, 1978.
    Rehearing Denied July 19, 1978.

      Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Tryon D. Lewis, Odessa, for appellant.
    Carl Steckelberg, Midland, for appellee.
   OPINION

WARD, Justice.

The beneficiary of three non-medical life insurance policies, each in the face amount of $1,000.00, sued to recover the proceeds. The Reliable Life Insurance Company, the insurer, defended and sought cancellation of the policies on grounds that the deceased and the insured, Mrs. Ozell Washington, had given false answers to certain questions in the applications, was not in good health when the policies issued, and that two of the policies had been released. Trial was to a jury and judgment was entered on the verdict for the beneficiary for the amount claimed, statutory penalty of twelve percent, and attorney’s fees. On this appeal, we reverse and render.

Mrs. Ozell Washington was in the Park-view Hospital in Midland from September 16, 1974, until October 11, 1974. Medical records of the Parkview Hospital disclosed that she was treated for chronic gomerulo nephritis and congestive heart failure; that she had shortness of breath and swelling of her feet; and concluded that she was an elderly woman who was “very, very acutely ill.” It was also shown that her prognosis was guarded and grave, and that it was difficult to get a history from her because the effort to talk caused her more shortness of breath. After her discharge from Park-view Hospital, she continued to be seen by her physician on the basis of every other day or twice a week. At this time, she was living with her son, A. W. Washington, and, while at his house, she was contacted by Luther Armstrong, an agent for the Defendant Insurance Company. Two applications for $1,000.00 life insurance policies were secured from her at that time. The Defendant then issued its Policy No. 5245868, dated October 15, and its Policy No. 974096863, dated October 21, each in the amount of $1,000.00 and each naming A. W. Washington as the beneficiary. About this time, Mrs. Washington moved to her sister’s home where she was visited by Fred Jones, another agent of the Defendant Insurance Company, and he secured an application from her for a third $1,000.00 life insurance policy. Based on this last application, the Defendant then issued its Policy No. 974099336, dated October 28, in the amount of $1,000.00, and again with A. W. Washington as the beneficiary. Mrs. Washington’s medical problems continued and she checked into Odessa Medical Center Hospital on December 16, and there she remained until she died on January 20, 1975. The records from that hospital showed that she was still having shortness of breath, lung and heart problems, and that she died with a final diagnosis of em-pyema of the right chest and cerebral infarction.

Both Policy No. 974096863, dated October 21, and Policy No. 974099336, dated October 28, contained identical good health clauses which were to the following effect:

“ * * * This Policy shall become effective on the Policy Date if the Insured is then alive and in good health, but not otherwise.”

No issue on the good health of the deceased on the effective dates of the policies in question was submitted to the jury because a stipulation was made that at all relevant times, on the date of all applications, and on the effective dates of each of the policies, Ozell Washington was not in good health and the policy provisions were not complied with.

The Defendant’s first contention is that as a matter of law the deceased was not in good health within the meaning of the terms of those two policies on their effective dates. The good health defense is not contested by the Plaintiff, but is answered on the theory that the good health provisions of those two policies were waived as a matter of law. In view of the stipulation of counsel, we must sustain the first point, unless the Plaintiff’s affirmative defense thereto has been established under the evidence as a matter of law. It is settled that the insured’s possession of sound health on the date of a life insurance policy may be made a condition precedent to the operative effect of the policy. Lincoln Income Life Insurance Company v. Mayberry, 162 Tex. 492, 347 S.W.2d 598 (1961). The stipulation thus requires that the two policies never took effect and that they should be cancelled unless a waiver of the good health provision of the policies has been established as a matter of law. Texas Prudential Insurance Company v. Dillard, 158 Tex. 15, 307 S.W.2d 242 (1957).

The affirmative defensive issue of waiver was one upon which the Plaintiff had the burden of proof. As a general rule, a party waives an issue upon which he relies by failing to request its submission. Tex.R. Civ.P. 279; Commercial Standard Insurance Co. v. White, 423 S.W.2d 427 at 434 (Tex.Civ.App.—Amarillo 1967, writ ref’d n.r.e.). As pointed out, this was true unless the waiver relied on was established as a matter of law. Texas Prudential Insurance Company v. Dillard, supra. The agent Luther Armstrong, who took the applications for two of the policies, testified that he had known Mrs. Washington for five years; that he never knew of her being sick; that at the time he took the application she appeared to be healthy; that she gave him no indication that she was ill or had been in the hospital; and that he asked her questions concerning her health and checked off her answers on the form. Basically, the application showed that Mrs. Washington had not had heart disease, high blood pressure, or disease or injury of her lungs, nor had she had any injury, illness or operation within the past five years, nor had she been confined in the hospital for any reason, and finally there was a denial of any treatment by a doctor. All of the applications are signed by Mrs. Ozell Washington at the bottom, and her signatures are all attested by either the sister, Viola Smith, or the son, A. W. Washington, and the respective insurance agent. Each of the applications was in evidence and before the Court and the jury. The agent Fred Jones was not called to testify, and, as to this application, the sister Viola Smith testified that the agent could see that she was sick and that she told him that Mrs. Washington was sick. At best, Mrs. Smith was an interested witness. We hold that on all of the applications, waiver has not been established as a matter of law. The submission of the issue of waiver not having been requested caused that defense to be waived. The Defendant’s first point is sustained.

As previously pointed out, only two of the policies had the good health provision, and only those policies were the subject of the first point. The third policy, No. 5245868, and one of the good health policies, No. 974096863, were the two that were solicited by the agent Luther Armstrong. After the insured, Mrs. Washington, had died, Mr. Armstrong went to the beneficiary, A. W. Washington, and told him that the Company would not pay on the policies. Armstrong then presented a release covering these two last policies to Mr. Washington, who signed the release and took a check in the total amount of the premiums which had been paid on all of the policies and which was in the amount of $70.85. After Mr. Washington had delivered the release to the agent and had taken the check, he apparently visited his lawyer, and the lawyer then sent the check back to the Company. The Defendant Insurance Company pled the release in this case. The release was placed in evidence after Washington admitted that he had signed the instrument. No issues were requested by the Plaintiff in avoidance of this release. The release contains at least the numbers of the policies mentioned above, and includes the statement:

“ * * * This payment is in full settlement of all claims or demands of every nature against said Company under or arising out of above numbered policy * * * and release said Company from all liability under and by reason of said policy.”

The release is the subject of the third point of error, which is to the effect that the trial Court erred in failing to grant judgment in favor of the Defendant based upon this release which the beneficiary had signed. The release was the subject of the Defendant’s motion for an instructed verdict. It appears clear that once the issue of release was raised by the Defendant, it became incumbent upon the Plaintiff to raise defenses as to the avoidance of the release. Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294 (1960). The burden again was on the Plaintiff to plead and establish an avoidance, otherwise, he waived any defense as to the release. Ellis v. Woods, 453 S.W.2d 509 (Tex.Civ.App. — El Paso 1970, no writ). Although the Plaintiff pled no consideration as to the release, no evidence was offered and no issue was requested as to lack of consideration. The evidence at the trial disclosed that there then existed a valid controversy between the parties. The repayment to the beneficiary of the amount of the premium paid on a life policy and the acceptance of such premium by him, with full acknowledgement in the receipt that the repayment was in full payment of claims under the policy, would bar a recovery by him in the absence of a valid defense. 32 Tex.Jur.2d Insurance, Sec. 451 at p. 678 (1962). The Defendant’s third point is sustained.

We have not discussed the Defendant’s second and fourth points, as they are not reached. Having sustained the first and third points, judgment for the Plaintiff is reversed and judgment is here rendered that the Plaintiff take nothing, and that the named policies be cancelled.

ON MOTION FOR REHEARING

The Defendant’s defense of fraud was not discussed in the original Opinion as the jury, by its verdict, found against that defense.

The Plaintiff argues in his motion for rehearing that waiver of the good health provision of the first two policies discussed was established because no false representation was made by Ozell Washington to either of the two soliciting agents. The Plaintiff relies upon the jury answers to Special Issues Nos. 1 and 6. Issue No. 1 submitted the Defendant’s first defensive iscue of the defense of false representation having been made by Ozell Washington as to her good health to the agent Armstrong. Special Issue No. 6 was identical to Issue No. 1, except that it inquired as to such representation having been made to the agent Fred Jones. The jury answered both issues in the negative. These were issues on which the Defendant had the burden of proof to establish its defense of fraud. The negative answers of the jury to those issues do not aid the Plaintiff in his position that they established that Ozell Washington gave the true facts regarding her poor health to those two agents. The Plaintiff would have the burden of proof to establish that she told the agents the truth and a failure to find on the Defendant’s issues does not establish the Plaintiff’s defensive issues of waiver.

We have considered all of the matters presented by the Plaintiff in his motion for rehearing and they are overruled.


author: YOUNG, Justice.

text:
    Jesus MARTINEZ, Appellant, v. TEXAS EMPLOYMENT COMMISSION, Appellee.
    No. 1317.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 22, 1978.

      H. Clyde Farrell, Texas Rural Legal Aid, Inc., Harlingen, for appellant.
    Myra A. McDaniel, Asst. Atty. Gen., Austin, for appellee.
   OPINION

YOUNG, Justice.

This appeal involves the construction of Tex.Rev.Civ.Stat.Ann. art. 5221b -14(d) (1971). The appellee, Texas Employment Commission, hereafter called “TEC”, rendered an administrative decision that appellant, Jesus Martinez, must reimburse TEC for an alleged overpayment of unemployment compensation. After exhausting administrative appeals, Martinez, filed this action in the district court of Cameron County to overturn the decision of TEC. Both parties moved for summary judgment and on October 3, 1977, the court below granted to TEC judgment which denied all of appellant’s requested relief. Martinez brings this appeal. We reverse.

This appeal comes to us on an agreed statement of facts under Rule 378, T.R.C.P. Those facts appear in the record as follows:

“1. During the time period from May 12, 1975 through July 3, 1975, when Mr. MARTINEZ was unemployed, he received eight Unemployment-Insurance payments of $63.00 each in the total amount of $504.00, from the TEXAS EMPLOYMENT COMMISSION.
2. The TEXAS EMPLOYMENT COMMISSION subsequently informed Mr. MARTINEZ that he had been ‘overpaid’ in the amount of $504.00 by the aforesaid payments. The reason stated for such overpayment was that wages earned by another individual at Temple Industries, Inc. had been credited to Mr. MARTINEZ and that his claim was disallowed because he did not have sufficient wages reported in the base period to qualify for benefits.
3. Mr. MARTINEZ contested the aforesaid overpayment determination at a hearing and through all available appeals provided by the TEXAS EMPLOYMENT COMMISSION. The TEXAS EMPLOYMENT COMMISSION ruled against him and sustained its original determination as stated in 2. above at each step of the hearing and appeal procedure.
4. Mr. MARTINEZ on December 3,1975 duly filed this action in the 197th District Court of Cameron County for judicial review of said overpayment determination.
5. After discovery proceedings, Mr. MARTINEZ and the TEXAS EMPLOYMENT COMMISSION each moved for summary judgment in the Trial Court. On October 3, 1977, the Trial Court entered Judgment granting the Motion of the TEXAS EMPLOYMENT COMMISSION for Summary Judgment and denying the Motion for summary Judgment of Mr. MARTINEZ and ordering that the TEXAS EMPLOYMENT COMMISSION was entitled to Judgment and that Plaintiff take nothing by his suit.
6. The decision of the TEXAS EMPLOYMENT COMMISSION to pay Mr. MARTINEZ the aforesaid $504.00 in benefits was based upon data in possession of the TEXAS EMPLOYMENT COMMISSION which erroneously attributed to Mr. MARTINEZ wages which were actually earned by another person with the same name and social security number.
7. The data referred to in 6. above was true, i. e., there was in existence such a person with such name, and social security number and earnings record.
8. Mr. MARTINEZ’ earnings record at the time the aforesaid $504.00 was paid was in fact insufficient to entitle him to such payment, or any part thereof. The payment was made erroneously to Mr. MARTINEZ, for the sole reason that he was credited by the TEXAS EMPLOYMENT COMMISSION with wages earned by another person with the same name and social security number as Mr. MARTINEZ.
9. At the time this lawsuit was filed and at all times prior thereto, it was the policy of the TEXAS EMPLOYMENT COMMISSION to establish as an overpayment pursuant to § 16 of the Texas Unemployment Compensation Act, all Unemployment benefits erroneously paid any claimant, whether the error in payment of such benefits was the fault of the Agency or of any other party. It was also the policy of the Commission to attempt to recoup all such benefits which were deemed to be overpaid.”

These agreed facts are presumed to embrace every fact in the case and no other fact or findings may be presumed or inferred except such facts as are necessarily implied from those expressly stipulated. Stewart v. Mobley, 500 S.W.2d 246, 249 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.).

Actions to review decisions of the Texas Employment Commission are governed by the substantial evidence rule. De-Leon v. Texas Employment Commission, 529 S.W.2d 268 (Tex.Civ.App.—Corpus Christi, 1975, writ ref’d n. r. e.). Since the facts on appeal are stipulated, the sole question presented is whether such undisputed facts support the decision of TEC and the judgment of the trial court; i. e., the appealing party must show that the decision is arbitrary, unreasonable, capricious and made without regard to the facts. This is a question of law. Gerst v. Guardian Savings and Loan Association, 434 S.W.2d 113 (Tex.1968). Nelson v. Texas Employment Commission, 290 S.W.2d 708, 710 (Tex.Civ.App.—Galveston 1956, writ ref’d); DeLeon, supra.

Appellant, Martinez brings two points. The second point contends the stipulated facts show that the TEC abused its discretion in applying a uniform policy of ordering repayment without regard to the hardships and inequities involved. We disagree.

Appellant bases his assertion upon the premise that Article 5221b-14 (d) grants discretion to TEC whether or not to compel repayment. Article 5221-14 (d) provides:

“(d). Any person who, by reason of the nondisclosure or misrepresentation by him or by another, of a material fact (irrespective of whether such nondisclosure or misrepresentation was known or fraudulent) has received any sum as benefits under this Act while any conditions for the receipt of benefits imposed by this Act were not fulfilled in his case, or while he was disqualified from receiving benefits, shall, in the discretion of the Commission. either be liable to have such sum deducted from any future benefits payable to him under this Act or shall be liable to repay to the Commission for the Unemployment Compensation Fund, a sum equal to the amount so received by him, and such sum shall be collectable in the manner provided in Section 14 (b) of this Act for the collection of past due contributions.” (Emphasis supplied.)

He cites the above underlined language from Article 5221b-14 (d) as the statutory basis for the discretion. We hold this statute gives no discretion to TEC to forgive or reduce a repayment. The only discretion this provision confers upon TEC is whether to demand a current repayment or a deduction from future benefits. See Decker v. Industrial Com’n, Dept. of Emp. Sec., 533 P.2d 898, 899 (Utah 1975). Appellant’s second point is overruled.

Appellant’s first point contends the trial court erred in upholding the decision of TEC because the stipulated facts show that the overpayment was not made by reason of the nondisclosure or misrepresentation, by him or another, of a material fact. We agree.

If TEC’s conclusion was correct, it is immaterial that it may have proceeded to the conclusion on an erroneous theory or may have given an unsound reason for reaching it. Texas Employment Commission v. Hays, 360 S.W.2d 525, 527 (Tex. 1962). For that reason, we begin our discussion of the first point by an examination of possible grounds upon which the TEC may issue an order compelling recoupment.

An administrative agency, such as TEC, has only such powers as are expressly granted to it by statute together with those necessarily implied from the authority conferred or duties imposed. Stauffer v. City of San Antonio, 162 Tex. 13, 344 S.W.2d 158, 160 (1961); State v. Jackson, 376 S.W.2d 341 (Tex. 1964). If the statutes do not grant an agency the power to do a thing, then it has no such power. Nueces Co. Water C. & I. Dist. v. Texas Water R’ts. Com’n., 481 S.W.2d 924 (Tex.Civ.App.—Austin 1972, writ ref’d n. r. e.). When the Legislature acts with respect to a particular matter, the administrative agency may not so act with respect to the matter so as to nullify the Legislative action even though the matter be within the agency’s general regulatory field. State v. Jackson, 376 S.W.2d 341, 344 45 (Tex. 1964); Cobra Oil & Gas Corporation v. Sadler, 447 S.W.2d 887, 892 (Tex. 1968).

All of which brings us to the discussion of the particular statute involved here. At the time of the acts made the basis of this suit, Article 5221b-14 (d) expressed the only provision in the Texas Unemployment Compensation Act for recouping payments of undeserved benefits where no fraud or willful and knowing nondisclosure was shown. In order to recoup payments, TEC was required to show either a nondisclosure or misrepresentation by either the claimant, or by another. No other ground or theory for recovery was provided by the Legislature, and we think that to consider another theory of recovery would nullify the Legislature’s expressed intent as to the requirements for recovering undeserved benefits. For this reason, we do not here consider whether the judgment in favor of TEC can be affirmed on any other theory such as restitution or unjust enrichment. See Hill v. Review Board of Indiana Employment Sec. Div., 124 Ind.App. 83, 112 N.E.2d 218 (1953). The result of this case then is to be determined solely on whether there is substantial evidence to show that the requirements of Article 5221b-14 (d) have been met.

TEC agrees in its brief that “there was no nondisclosure or misrepresentation by appellant of any material fact.” It asserts, however, that the required misrepresentation as to a material fact was made by employees of TEC, and that the clause in Article 5221b-14 (d) “Any person, by reason of the nondisclosure or misrepresentation by him (the unemployed) or another, of a material fact . . . ” shows that the Legislature intended to require repayment even when the erroneous payment resulted from a mistake of a TEC employee. We do not accept this overly technical interpretation of the language in question. See Calvert v. Phillips, 268 S.W.2d 478 (Tex.Civ.App.—Austin 1954, writ ref’d).

The Act herein must be given a reasonable, common sense interpretation. State Highway Dept. v. Gorham, 139 Tex. 361, 162 S.W.2d 934 (1942). Misrepresentation is defined in Black’s Law Dictionary 1152 (rev. 4th ed. 1968) as:

“any manifestation by words or other conduct by one person to another that under the circumstances, amounts to an assertion not in accordance with the facts.” (Emphasis supplied.)

In keeping with the above definition, the obvious intent of the Legislature was that the misrepresentation be made by the claimant, or anyone, to TEC. To show who made the representation to TEC in the instant case, the parties stipulated, viz:

“8 . the payment was made erroneously to Mr. Martinez, for the sole reason that he was credited by the Texas Employment Commission with wages earned by another person . . . ”

In other words, the parties agreed that it was TEC itself that made the mistake or, as appellee terms it, the misrepresentation. Can TEC misrepresent to TEC? We think not. For us to hold otherwise would torture the obvious intent of the Legislature.

The Texas Unemployment Compensation Act was passed as a remedial provision with the purpose of relieving the economic plight of people who are unemployed through no fault of their own. Texas Employment Commission v. Gulf States Utilities Co., 410 S.W.2d 322 (Tex.Civ.App.—Eastland 1966, writ ref’d n. r. e.). We think it would be contrary to that purpose to construe Article 5221b-14 (d) of the Act so as to provide for recovery of payments when there is no evidence of misrepresentation or nondisclosure, and when the mistake is caused solely by TEC itself. In re Prouty, 131 Vt. 504, 310 A.2d 12 (1973).

Appellee also contends that great weight should be given to TEC’s policy of recouping all overpayments under Article 5221b-14 (d). In that regard, departmental practice is important when an administrative agency is confronted with an ambiguous statute, but it affords no basis for practices which are contrary to the plain meaning of statutes. Brown Express Inc. v. Railroad Commission, 415 S.W.2d 394 (Tex. 1967).

TEC further argues that Kugel v. Board of Review, 66 N.J.Super. 547, 169 A.2d 717, 719 (1961) applies to the instant case in that it also involved a clerical type mistake by the agency there involved. Kugel held that where the agency makes a clerical error, the expressed public policy of the New Jersey Act, to prevent depletion by unjustified benefit payments, compels recoupment. The statute in that case, though similar to the Texas Unemployment Compensation Act, provided for recoupment in the case of misrepresentation, nondisclosure, or “for any other reason”. Our Legislature clearly did not extend our Act to cover such a broad range of circumstances. Appellant’s first point is sustained.

The judgment of the trial court is therefore reversed and judgment is here rendered that the November 13, 1975, decision of the Texas Employment Commission be set aside and that Jesus Martinez not be required to repay the disputed $504.00 herein and that he have his costs.

      . Tex.Rev.Civ.Stat.Ann. art. 5221b-14 (d) has been amended effective January 1, 1978, and provides for recoupment of undeserved benefits whenever a prior determination or decision is finally modified or reversed to deny benefits.


author: AKIN, Justice.

text:
    Joel H. McQUADE, Appellant, v. E. D. SYSTEMS CORPORATION, Appellee.
    Motion No. 22359.
    Court of Civil Appeals of Texas, Dallas.
    June 23, 1978.
    Rehearing Denied July 18, 1978.
    H. Campbell Zachry, Durant, Mankoff, Davis, Wolens & Francis, Dallas, for appellant.
    M. David Bryant, Jr., Hughes, Luce, Hennessy, Smith & Castle, Dallas, for appellee.
   AKIN, Justice.

The question presented here is whether an order of the district court, entered prior to judgment on the merits, requiring a defendant to pay up to $15,000 into the court’s registry is an appealable order. We hold that it is not because it is interlocutory and does not fall within the ambit of art. 4662 of the Texas Revised Civil Statutes Annotated (Vernon 1952). Accordingly, we deny leave to file an appeal from that order.

E. D. Systems Corporation sued four defendants in the district court for recovery on a promissory note and for damages for fraud. On April 3, 1978, an order directing issuance of a pre-judgment writ of attachment with respect to one of the defendants, McQuade, was entered by the trial judge. Pursuant to that order, a writ of attachment was issued on April 4, 1978. Thereafter, plaintiff sought the assistance of the court by means of a motion for an order in aid of writ of attachment. After a hearing, the court, “in aid of the writ of attachment heretofore issued,” made the following order:

It is ordered that defendant, Joel H. McQuade, be, and the same hereby is, directed to deliver to the Sheriff of Dallas County, Texas, for attachment, on or before May 15, 1978, all cash which is presently in his possession or under his control, up to Fifteen Thousand Dollars ($15,000).

Defendant McQuade now seeks to appeal from the issuance of this order.

Defendant argues that since the order directs him to deliver certain described property to the Sheriff of Dallas County, it is, essentially, a temporary mandatory injunction and, therefore, appealable under art. 4662 and rule 385 of the Texas Rules of Civil Procedure. Article 4662 permits an appeal from the granting or denial of a temporary injunction. Rule 385 prescribes the procedural steps necessary for such an appeal. Our question then is whether the trial court’s order here falls within the ambit of art. 4662. To state the question differently, is the order of the trial court, in effect, a temporary mandatory injunction? In support of his contention that the order is a temporary mandatory injunction, defendant cites Whatley v. King, 151 Tex. 220, 249 S.W.2d 57 (1952), and Pilot Engineering Co. v. Robinson, 470 S.W.2d 311 (Tex.Civ.App.—Waco 1971, no writ).

In Whatley v. King, the trial court, upon retrial of a case which had been affirmed in part and reversed and remanded in part by the court of civil appeals, ordered the petitioner to deliver to respondents certain personal property of which petitioner had been in possession by virtue of a writ of sequestration that he had earlier caused to be issued. Petitioner perfected an appeal of this order to the court of civil appeals, but respondents thereafter obtained an order dismissing the appeal on the ground that the trial court’s order was not a final judgment and therefore not appealable. On writ of error, the supreme court held that the order was appealable since it was in effect a mandatory injunction “containing] all the elements of finality so far as petitioner is concerned.” [Emphasis added] 249 S.W.2d at 58. No mention was made of art. 4662 or its predecessor; thus, we do not read Whatley so broadly as to make appeal-able all interlocutory orders of the trial court. Indeed, as we noted in Bergeron v. Session, 554 S.W.2d 771, 773 n.2 (Tex.Civ.App.—Dallas 1977, no writ), Whatley does not even mention the one final judgment rule. Consequently, Whatley, in our view, is limited to an extraordinary situation in which the order is a mandatory injunction that effectively and finally adjudicates the rights of the complaining party. No such extraordinary situation exists here. Indeed, the trial court merely ordered the defendant to pay $15,000 into the court’s registry pending a final disposition of the dispute.

Neither do we consider as controlling the Waco Court of Civil Appeals’ decision in Pilot Engineering Co. v. Robinson, supra, as authority to hold that the order in question is a mandatory injunction. We have previously questioned the efficacy of this decision in Bergeron v. Session, supra. In Pilot Engineering, the appellee sued a company in which he had a part interest as well as two other owners of the company for an accounting and for damages. Appellee in that case also requested that a receiver be appointed for the company. After a hearing, the trial court denied the request for a receivership, but ordered appellants to place certain cashier’s checks in the amount of $10,000 in the registry of the court. The court of civil appeals held that the order was an appealable temporary mandatory injunction, citing only Whatley. We now expressly disagree with this holding by the Waco Court of Civil Appeals. In our view, the order requiring payment of the $10,000 cashier’s check into the court’s registry was an interlocutory order, rather than a final mandatory injunction as the supreme court found in Whatley. Thus, we conclude that the reliance upon Whatley by that court was misplaced. Whatley is apparently grounded on the finding that the order in that case was a final judgment rather than the type of interlocutory order from which an appeal would lie. For this reason, neither Whatley or Pilot Engineering are conclusive on the question before us. Instead, we adhere to the rationale of our decision in Bergeron v. Sessions, supra, in which our Chief Justice made an exhaustive and scholarly discussion of the rules with respect to finality of judgment and the exceptions thereto.

It is apparent to us that the order of the trial court in our case was not a temporary injunction. Such an injunction is permitted only for the purpose of preserving the subject matter of the controversy as it existed at the time the suit was instituted. City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 976 (1931); Watts v. Alto Independent School District, 537 S.W.2d 776, 778 (Tex.Civ.App.—Tyler 1976, no writ). The order before us purports to be in aid of a writ of attachment previously issued. In its application for a writ of attachment, plaintiff maintained that the writ was necessary to insure that sufficient assets of the defendant were kept in the state for the satisfaction of any judgment plaintiff might obtain in the pending suit. This application is in keeping with the statutory grounds for the issuance of a writ of attachment found in art. 275 of the Texas Revised Civil Statutes Annotated (Vernon 1973). In insuring, by issuance of the writ and the later order, that certain assets not directly involved in the pending litigation were kept in state, the trial court was not acting to preserve the controversy until final determination. Whether the defendant retains any assets for the satisfaction of a possible judgment against him has no bearing on the mootness of the causes of action alleged in the plaintiff’s petition. Neither plaintiff’s right to recover on a promissory note nor his right to damages for fraud depend upon the existence or location of any particular property of the defendant. We conclude, therefore, that the order is not appealable under art. 4662.

Moreover, we would be loath to hold that the mere fact that the defendant was directed to do a certain thing pending trial makes the court’s order a temporary injunction. Such a holding could encompass every conceivable interlocutory order and would allow art. 4662 to vitiate the general rule that only final judgments are appealable. Concern for the preservation of this general rule has led other Texas courts to refuse to characterize interlocutory orders to pay money into court as appealable temporary injunctions. Furr v. Furr, 346 S.W.2d 491 (Tex.Civ.App.—Fort Worth 1961, writ ref’d n. r. e.); Alpha Petroleum Co. v. Dunn, 60 S.W.2d 469 (Tex.Civ.App.—Galveston 1933, err. dism’d).

The order in question is in aid of a writ ancillary to the main suit, since the attachment will finally be disposed of by the determination of the main suit. Shiflett v. Associated Oil & Gas Co., 412 S.W.2d 705, 706 (Tex.Civ.App.—Houston 1967, no writ). Consequently, the order is interlocutory and is not appealable unless specifically made so by statute. Henderson v. Shell Oil Co., 143 Tex. 142, 182 S.W.2d 994, 995 (1944). Not only is art. 4662 inapplicable, but we are aware of no other statute authorizing an appeal from such an order. Leave is, therefore, denied to file this appeal.

GUITTARD, C. J., not sitting.


author: BISSETT, Justice.

text:
    SEAVIEW HOSPITAL, INC., Appellant, v. MEDICENTERS OF AMERICA, INC., Appellee.
    No. 1291.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 26, 1978.
    Rehearing Dismissed Aug. 1, 1978.

      Charles N. Cartwright, Prichard, Peeler, Cartwright & Hall, Corpus Christi, for appellant.
    Richard A. Hall, Gary, Thomasson, Hall & Marks, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is a suit by Medicenters of America, Inc., hereinafter called “Medicenters”, against Seaview Hospital, Inc., hereinafter called “Seaview”, to recover certain sums of money allegedly due under a written contract. Trial was to a jury. Judgment was rendered on the verdict for Medicenters in the amount of $25,002.00, with interest thereon at the rate of 6% per annum from August 1, 1973 ($6,047.48) to August 6, 1977 (date of judgment), plus $10,000.00 for attorney’s fees with interest at the rate of 9% per annum on all said sums of money from date of judgment until paid, and for, an additional sum of $3,000.00 as attorney’s fees in the event Seaview appeals the judgment to the Court of Civil Appeals. The judgment further decreed that Seaview take nothing against Medicenters on the cross action filed by it. Seaview has perfected an appeal from the judgment to this Court.

Medicenters was a licensed general contractor that was primarily concerned with the building of hospitals. As such, it did nothing more than arrange for the preparation of plans and specifications for the affected hospital, and would, if its bid was accepted, build the hospital pursuant to a “turnkey” contract. It did not perform architectural or engineering services itself, but procured such services from duly qualified and licensed architects and engineers. The cost of such services was included in its “turnkey” bid.

Seaview, in August, 1972, sent Medicen-ter a bid solicitation for a “turnkey development” of a hospital. Included in the bid solicitation was a form entitled “DEVELOPER’S TOTAL TURNKEY PRICE”. Medicenters then submitted a written “turnkey proposal” which, among other provisions, included in the page entitled “DEVELOPER’S TOTAL TURNKEY PRICE” an exact reproduction of the form contained in the bid solicitation. That form, with the appropriate blanks filled-in by Medicenters, with respect to the issues here presented, reads:

A construction contract concerning the actual building of the hospital was never entered into by the parties, but it was agreed in writing for Medicenters to proceed with the work described and outlined in paragraph II relating to Phases I, II and III, above-quoted. That agreement, which authorized only the work described in Phases I, II and III, totalling $80,268.00 which is the exact sum of money set out in paragraph II, is the contract here involved and will henceforth be referred to as the “contract”.

After the work contemplated by Phases I and II was completed, Seaview paid Medi-centers the contract amounts of $18,000.00 and $40,000.00, respectively. After Phase III was substantially finished, Seaview abandoned the project, and refused to pay Medicenters the money which it (Medicen-ters) claimed was due for the work required by Phase III, together with additions thereto which were requested by Seaview. Suit was filed on January 7, 1975.

Medicenters, in its trial petition, among other allegations, alleged that when the final plans and specifications (Phase III) were sent to Seaview, its president requested changes which were not contemplated by the approved preliminary drawings and the scope of the work at the end of Phase II, and that Medicenters attempted to comply with the requested changes. It was further alleged: that on July 30, 1973, Seaview, by letter, instructed Medicenters not to proceed with any further activity regarding the development and construction of the planned hospital until further notice; that the phrase “until further notice” meant that Seaview had abandoned the project; that the contract provided that Seaview would pay Medicenters $22,268.00 for the work outlined in Phase III; and that the requested changes required extra work in the sum of $3,134.00. Medicenters sought a recovery of $25,402.00, plus interest thereon, plus reasonable attorney’s fees.

Seaview, in its answer, among other defenses, pled:

“VI.
Defendant would further show this Honorable Court that the special contract between the Plaintiff and the Defendant herein constitutes an illegal contract because the Plaintiff, Medicenters of America, Inc., had not complied with the requirements of Article 249a and Article 3271a of the Revised Civil Statutes of the State of Texas in that neither Medicen-ters of America, Inc., nor any of its agents, servants and/or employees were duly licensed to practice the professions of architecture and/or engineering in the State of Texas. Therefore, the said Plaintiff, Medicenters of America, Inc., contracted to perform services in the State of Texas when it was legally precluded from performing such services.”

Seaview also filed a cross action whereby it sought to recover back the $58,000.00 which it had previously paid to Medicenters for the work required by Phases I and II. The reasons pled in support of such a recovery were the identical reasons pled by it in its second amended answer, above-quoted.

Seaview filed a motion for judgment non obstante veredicto, wherein it was alleged that neither Medicenters nor any of its employees, at the time of execution of the contract or at the time of performance thereunder, were licensed in Texas to practice either the profession of architecture or the profession of engineering, and that, as a consequence, the contract was void as being in violation of “Articles 3271A and 249A of the Revised Civil Statutes of the State of Texas”. The motion was overruled. Sea-view attacks that ruling in four points of error. It contends that the trial court erred in overruling the motion “because the un-controverted evidence” showed that on the date the contract was executed and at all times during its performance, neither Medi-eenters nor any of its employees were: 1) licensed to practice either the profession of architecture or the profession of engineering in Texas; 2) licensed as professional engineers in Texas; 3) licensed as professional architects in Texas. For those reasons, S'eaview claims that, since the contract sued on is illegal and void, a take nothing judgment should have been rendered on the action brought by Medicenters. Seaview further asserts (point 4) that it was error for the trial court to refuse to render judgment in its favor in the amount of $58,000.00, sought to be recovered in its cross action “because the evidence conclusively shows” that such money was paid under the terms of an illegal contract.

Tex.Rev.Civ.Stat.Ann. art. 249a (1973), insofar as the same applies to this case, in summary, provides that no person shall practice architecture in Texas unless he is first duly licensed by the Texas Board of Architectural Examiners; defines the “practice of architecture” as the “performing or doing, or offering or attempting to do or perform any service, work, act or thing within the scope of the practice of architecture”; exempts from the licensing requirements employees of registered architects who perform work “under the instructions, control or supervision of such architect”; further provides that “a firm, partnership or a corporation may engage in the practice of architecture, as defined herein, in this State, provided that such practice is actually carried on, conducted and performed only by persons to whom registration certificates have been duly issued under the provisions of this Act”; and declares that the statute shall not apply “to any person or firm who prepares plans and specifications for the erection or alteration of a building, or supervises the erection or alteration of a building by or for other persons than himself, or themselves, but does not in any manner represent himself, herself, or themselves to be an architect, architectural designer, or other title of profession or business using some form of the word ‘architect’ ”,

Tex.Rev.Civ.Stat.Ann. art. 3271a (1968) provides that only licensed persons shall engage in thé practice of engineering. The phrase “practice of engineering” is defined as “any service or creative work, either public or private, the performance of which requires engineering education, training and experience in the application of special knowledge of the mathematical, physical, or engineering sciences to such services or creative work”. The statute prohibits any compensation being paid to any unlicensed person “for performing, offering or attempting to perform any service, work, act or thing which is any part of the practice of engineering”. The statute, however, exempts from the provisions thereof any employee or subordinate of a person holding a Certificate of Registration if his practice does not include “responsible charge of design or supervision”. Also, the statute specifically authorizes a corporation to “engage in the practice of professional engineering in this State, provided such practice is carried on by only professional engineers registered in this State”.

It is Seaview’s position in this appeal that Medicenters does not have a cause of action against it because the contract which was executed was void since neither Medicen-ters nor any of its employees were licensed in this State as either architects or engineers. It is Medicenters’ position that it is not illegal in Texas for a corporation, such as Medicenters, to enter into a contract, one portion of which calls for the corporation to arrange for but not to perforin the architectural and engineering services incident to a turnkey development contract. Seaview says that the contract provided that Medi-centers would perform architectural and engineering services. Medicenters says that the contract simply required that it provide such services, and that there is a vast difference between a contract to provide services and a contract to perform the same services.

No one claims that the contract is ambiguous. The controlling question is whether the contract required Medicenters to perform architectural and engineering services, or either, or whether it required Medicen-ters to furnish such services.

A contract for engineering services to be performed by a person who is prohibited from practicing engineering in Texas by Tex.Rev.Civ.Stat.Ann. art. 3271a (1968) is void, and being void, is unenforceable. M. M. M., Inc. v. Mitchell, 153 Tex. 227, 265 S.W.2d 584 (1954). The same rule applies where the contract for architectural services is to be performed by a person who is not licensed under Tex.Rev.Civ.Stat.Ann. art. 249a (1973) to practice architecture in this State. Mabry v. Priester, 161 Tex. 173, 338 S.W.2d 704 (1960). The purpose of each statute is to prevent the unlicensed, unauthorized practice of engineering and architecture in Texas.

It is conclusively shown by the record that while Medicenters did in fact actually perform considerable work incidental to the development project, neither it nor any of its employees actually performed any architectural or engineering services in connection with the work called for in Phases I, II and III. All such work, which dealt with the preparation of a 1) feasibility analysis and schematic drawings of the site, hospital and office, 2) the drawing of preliminary plans and specifications, and 3) the drawing of final plans and specifications, was actually performed by firms of architects and engineers that were domiciled in the State of Tennessee. None of the firms were residents of Texas. However, all of the architectural and engineering work required by the contract was actually performed by either members of those firms who, individually, were duly licensed to practice architecture or engineering in the State of Texas at all times relative to the contract, or, such work was actually performed by the firm’s employees under the direct supervision of such duly licensed architects and engineers.

It is undisputed that Seaview failed “to proceed with total development” of the project. Therefore, Seaview became obligated to “reimburse” to Medicenters, in accordance with the “schedule of reimbursement”, the costs set out in the turnkey proposal, unless the contract is held to be illegal and void.

Since no claim was made that the contract sued upon is ambiguous and the controlling facts are either undisputed or have been established by stipulation, the construction of the contract was thus a question of law. We do not reach the argument made by Seaview in its brief that this is not a suit for reimbursement since the record shows that only $70,000.00 was paid to the architects and the amount sued for included approximately $13,000.00, which Medicen-ters’ witness characterized as “out of pocket” expenses, and which Seaview apparently views as profit. The issues so argued are not before us in this appeal.

The law is well settled that where a contract does not specifically provide for an illegal mode of performance, it will be assumed that the parties contracted for a lawful performance; and, that when two constructions of a contract are possible, preference will be given to that which does not result in the contract being held void because of the violation of a statute. Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1947). On the basis of the judgment rendered by the trial judge in this case, the trial court necessarily concluded that the contract required Medicenters to furnish said services and did not require it to perform such services. There is, as asserted by Medicenters in its brief, a vast difference between a contract to “furnish” services and a contract to “perform” the same services. The word “furnish” requires a person to provide what is needed and implies the provision of all essentials for performing a function; the word “perform” requires a person to carry out a function and implies action by the person in carrying out by him all essentials necessary to complete the action.

A general contractor, under the licensing statutes here involved, is not precluded from entering into a contract with the owner which provides that the contractor: will engage or hire architects and engineers who are duly licensed in Texas to prepare drawings, plans and specifications for a proposed development; will pay such professionals; and will be reimbursed by the owner for such professional charges so paid by the contractor. The stated objective of both statutes is to protect public health, safety and the general welfare by insuring that architectural and engineering work in this State be performed only by qualified persons who are duly licensed.

We hold that the contract between Sea-view and Medicenters is valid and enforceable. The trial court rendered a correct judgment. All of Seaview’s points are overruled.

The judgment of the trial court is AFFIRMED.