author: HUMPHREYS, Justice.

text:
    WM. S. BAKER, INC., and Transamerica Insurance Company, Appellants, v. James D. SIMS, d/b/a Simtex Industries, Appellee.
    No. 20069.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 24, 1979.
    Rehearing Denied Nov. 1, 1979.
    William Woodbum, Woodbum, Sullivan & Hayslett, Dallas, for appellants.
    James David Brown, Davenport & Brown, Dallas, for appellee.
    Before AKIN, STOREY and HUM-PHREYS, JJ.
   HUMPHREYS, Justice.

The question presented on this appeal is whether a party may raise for the first time in this court the argument that the judgment does not conform to the pleadings in compliance with Tex.R.Civ. P. 301. Appellants, William S. Baker, Inc., and Trans-america Insurance Company, did not make any objection to the amount of the judgment at trial or move for new trial on the ground that the judgment was in excess of the amount pleaded. We hold that failure to present the question to the trial court in a manner which would require a definite ruling by the court was waiver of the error. Accordingly, we affirm.

This appeal results from a trial after a partial remand on a prior appeal of this case. See Sims v. William S. Baker, Inc., 568 S.W.2d 725 (Tex.Civ.App.-Texarkana 1978, writ ref’d n.r.e.). Predicated upon the mandate on remand, the sole question to be determined was the amount of attorney’s fees due appellee’s attorney. After testimony from two attorneys that a reasonable fee was $9,224, and testimony from appellants’ attorney that a reasonable fee was $5,000, the court rendered judgment for $8,224. Appellants’ sole point is that the trial judge erred in rendering judgment for a sum in excess of that plead for in appel-lee’s pleading. In this respect, appellee pleaded for $4,000 as a reasonable attorney’s fee.

Appellee contends that appellants did not preserve this point because they did not object to the testimony of amounts over $4,000, or move for new trial on the ground the judgment was in excess of the amount pleaded. Appellants on the other hand, argue that an objection to testimony would have been unnecessary and even improper, and that a new trial was not necessary nor desired. Appellants’ position is that under Tex.R.Civ. P. 301 the trial judge could only render judgment for $4,000, the sum pleaded.

Appellants cite several cases for the proposition that a judgment cannot be rendered for an amount greater than the amount pleaded. We agree with this proposition, but it has no application here because it is a matter which may be waived. None of the cases cited address the question of whether the error was waived. We hold that appellants had to present this complaint to the trial court by motion to limit the judgment to the amount pleaded, exception to the amount of the judgment, or motion for new trial in order to complain of the trial judge’s action on appeal. See Cobb v. Texas Distributors, Inc., 524 S.W.2d 342, 345 (Tex.Civ.App.-Dallas 1975, no writ); Maas v. Smith, 502 S.W.2d 175, 177 (Tex.Civ.App.-Austin 1973, writ ref’d n.r.e.). Tex.R.Civ.P. 324 requires a motion for new trial to be filed “in order to present a complaint which has not otherwise been ruled upon.” This rule does not distinguish between jury and non-jury trials. Because this matter was not previously called to the trial judge’s attention, Rule 324 required appellant to present it in a motion for new trial. Since appellants failed so to do, appellants waived complaint on this ground.

Appellants argue, however, that they did present the complaint to the trial court in their cross-examination of appel-lee’s attorney. They assert that it was presented to the trial judge when appellants’ attorney asked appellee’s attorney if he had only sought $4,000 at the first trial. We cannot agree that this testimony was sufficient to call this complaint to the trial judge’s attention. In order to call this matter to the trial judge’s attention, a motion or objection requiring a ruling on this point was necessary so as to have a ruling by the trial judge upon which to complain on appeal. Insofar as this record shows, the trial judge has not passed on this question.

Appellants also argue that they had no duty to inform appellee of his error and that if they had complained of the error, appellee would have corrected the error by amending his pleadings. This argument is without merit. Tex.R.Civ. P. 1 declares that the objective of the Rules of Civil Procedure is to “obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.”

Affirmed.


source: Caselaw Access Project

author: ROBERTSON, Justice.

license: Public Domain

text:
    INSTA/COM, INC., Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Appellee.
    No. 20050.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 24, 1979.
    R. Hunter Summers, Hewett, Johnson, Swanson & Barbee, Dallas, for appellant.
    Robert M. Greenberg, Dallas, for appel-lee.
    Before GUITTARD, C. J., and ROBERTSON and CARVER, JJ.
   ROBERTSON, Justice.

This is a suit on a surety bond. Appellant Insta/Com, Inc. sued appellee Aetna Casualty and Surety Company as surety and N. R. Sullivan, d/b/a Sullivan Trucking Company, as principal, for $2,999.35. Trial was to the court which entered a judgment against Aetna for $341.80, but denied recovery for the default of Sullivan occurring after December 1975. Subsequently, Insta/Com took a non-suit against Sullivan. We modify the judgment to allow recovery of the full amount of the appellant’s claim.

Insta/Com is in the business of advancing money to truck drivers along their routes on behalf of the companies for whom they work. A fee is charged for this service and reimbursement is received from the truck companies. On May 31, 1974, Insta/Com and Sullivan entered into a written contract under which Insta/Com was to provide Sullivan’s trucking business with check service after November 13, 1974. Sullivan agreed to remit to Insta/Com on a daily basis the amount of all checks transmitted plus charges. The contract provided that “Ins-ta/Com may immediately terminate this agreement upon any failure to trucking company to comply with this obligation.” Thereafter, on November 11,1974, Sullivan and Aetna executed a surety bond in the amount of $2,500 in favor of Insta/Com and by an increase certificate dated October 15, 1975, the amount of the bond was raised to $5,000.

In December of 1975 Sullivan failed to make payment for two check transmissions totalling $341.80. In March, April, and May of 1976 Sullivan defaulted on twelve other payments. The total amount of these payments, including transmission charges, was $2,999.35. Insta/Com notified Aetna of Sullivan’s default by telephone in July 1976 and by a letter dated September 17,1976, in which they demanded that Aetna honor its surety bond by paying the amount owed by Sullivan.

The trial court made the following conclusions of law:

That one who has a bonded contract with another that provides one with immediate right of termination upon default of the contract must exercise that right upon knowledge of default or lose its right to recover damages as a result of future default from an unknowing, unnotified surety. .
This court concludes that the plaintiff was obligated under its bond issued by Aetna bonding its contract with Sullivan to first notify the bonding company at plaintiff’s first notice of default .

On this appeal Insta/Com argues that it had no obligation to terminate its contract with Sullivan upon default because the words “may immediately terminate” are permissive in nature and are not compulsory. We agree. When language in a contract is clear and unambiguous, courts must construe it according to its plain terms and should not resort to arbitrary rules of construction. Citizens Nat’l Bank v. Texas & P. Ry., 136 Tex. 333, 150 S.W.2d 1003, 1006 (1941); Schoellkopf v. Bryan, 284 S.W. 339, 343 (Tex.Civ.App.—San Antonio 1926, writ ref’d). Courts are not to impair the effect of legally executed contracts, but are to enforce them as written. Rogers Ranch Co. v. Darwin, 89 S.W.2d 828, 828 (Tex.Civ.App.—San Antonio 1936, no writ). Consequently, the words “may immediately terminate” must be taken in their natural and ordinary sense; that is, as allowing, but not requiring, termination at Insta/Com’s discretion.

Insta/Com further maintains that it had no obligation to notify Aetna of any default of Sullivan. This position is supported by Texas law. A surety is generally bound with his principal by the same instrument executed at the same time and on the same consideration. He is an original promisor and debtor from the beginning and is held to know every default of his principal. Usually he will not be protected either by the mere indulgence of the creditor to the principal or by want of notice of default of the principal, no matter how much he may be injured thereby. Page v. White Sewing Mach. Co., 12 Tex.Civ.App. 327, 34 S.W. 988, 990 (1895, no writ); see Scott v. Tate, 28 S.W.2d 848, 849-50 (Tex.Civ.App.—Eastland 1930, no writ); Georges v. Fricke, 283 S.W. 221, 223 (Tex.Civ.App.—Austin 1926, writ ref’d). Additionally, a surety, as distinguished from an endorser, is not even entitled to demand notice of default absent specific contractual language to that effect. The general rule is that a creditor owes no duty of active vigilance to the surety to enforce the collection of indebtedness. Alabama Fidelity & Casualty Co. v. Alabama Fuel & Iron Co., 201 Ala. 625, 79 So. 57, 58-59 (1918); Arnett v. Simpson, 235 S.W. 982, 984 (Tex.Civ.App.— Amarillo 1921, writ dism’d).

Aetna counters that even ignoring the contract, a principal has a duty to act in good faith toward his surety, which, in this instance, gave rise to a duty on the part of Insta/Com to terminate its contract with Sullivan upon Sullivan’s initial default. This duty is said to arise from the equities of the situation. See Hamlen v. Rednalloh Co., 291 Mass. 119, 197 N.E. 149, 153 (1935). This contention of Aetna cannot stand, however, in light of Texas’ clear definition of the relationship between and duties of principal and surety as set out above.

We therefore hold that a creditor has no duty to a surety to be actively vigilant or to give notice of default absent a provision so providing in the contract. Insta/Com did not have any duty or obligation to protect Aetna from loss by cancelling its contract with Sullivan or by notifying Aetna of the default thereby giving Aetna the opportunity to cancel its surety bond. Insta/Com is entitled to judgment against Aetna for the full amount of its losses in the sum of $2,999.35.

The judgment is therefore modified accordingly and as modified, affirmed.


author: HUTCHINSON, Justice.

text:
    Mary Lynne JEU, Appellant, v. RETAIL CLERK’S UNION, LOCAL 455 AFL-CIO, et al., Appellees.
    No. 8714.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 25, 1979.
    Jack E. Stephens, Ray Elvin Speece, Houston, for appellant.
    James P. Wolf, Chris Dixie, Dixie, Wolf & Dixie, Houston, for appellees.
   HUTCHINSON, Justice.

This is a suit for damages for slander. Trial was to a jury whose verdict was in favor of Mary Lynne Jeu, plaintiff below and appellant here, and against Retail Clerk’s Union, Local 455 AFI^CIO, Van Blades, and Retail Clerk’s International Association, defendants below and appellees here. Appellees’ motion for judgment non obstante veredicto was granted and a take nothing judgment was entered.

Appellant was employed as a pharmacist for Globe Stores, Inc., d/b/a Globe Discount City in Houston. Appellee, Van Blades, was an employee of the union and was at the time of the alleged slander attending a called meeting of the employees of Globe Stores on company time and premises for discussion of unionization. Appellant, due to her employee classification, was not eligible to participate in the proposed election. However, she attended the meeting and addressed the eligible employees and told them that during her previous membership in the union her dues had been raised without notice to her and that promised wage increases had not been obtained. Thereafter appellee Van Blades was asked in the presence of a smaller group why appellant would make such statements and his response was, according to appellant’s allegations and the jury verdict, that appellant was being “paid off” by the employer to speak against the union. According to appellant, appellee Van Blades refused to retract the statement or apologize to her and as a result she suffered nervous problems, skin rashes and hormonal imbalance.

At trial, the jury found that the statement as to appellant having been “paid off” was not true; that appellee Van Blades spoke with malice; that appellee Van Blades failed to make reasonable investigation regarding the truthfulness of his statement which failure was both negligence and gross negligence; that appellant suffered $55.00 damages for past medical treatment and no damage for future treatment; that $15,000.00 would compensate her for injury to character or reputation and physical pain and mental anguish; and that she was entitled to $17,500.00 as punitive damages.

Appellant here contends that the trial court erred in applying the holdings of Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), and Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), to the facts of this case so as to require proof of “actual malice” as defined in the case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). “Actual malice” as so defined requires a finding that the alleged utterance was made “with knowledge of its falsity or with reckless disregard as to whether it was true or false.” The trial court’s definition was: “By the term ‘malice’ as used in this charge is meant reckless disregard for the health and welfare of another with knowledge and consciousness that injury or illness is likely to result from the statement made.” Ap-pellees’ Third Amended Answer filed two years prior to trial specifically plead the applicability of the Labor Management Relations Act and that the alleged statement was not made with knowledge of its falsity or with reckless disregard as to whether or not it was false. Appellant requested no issue or instruction relative to appellees’ knowledge or reckless disregard and none was given.

It is undisputed that at the time the alleged slanderous utterance was made there was pending an election to be conducted by the National Labor Relations Board among certain employees of Globe Stores, Inc. for the selection or rejection of appellee union as the collective bargaining representative and that the alleged slanderous statement was made by appellee Van Blades as an employee of the union at a meeting called by the company on company time and premises. It is further undisputed that appellant, though not eligible to participate in the election, attended the meeting and voluntarily made the anti-union talk.

The New York Times definition of “actual malice” has been applied and discussed by our Supreme Court in the case of El Paso Times, Inc. v. Trexler, 447 S.W.2d 403 (Tex.1969), and Linn has been analyzed in Farah Manufacturing Co. v. Amalgamated Clothing Workers, Etc., 483 S.W.2d 271 (Tex.Civ.App. San Antonio 1972, no writ). In El Paso Times, Inc., the court stated that the failure to investigate the truth or falsity of a statement is in itself insufficient to show “actual malice” and that negligence or the failure to act as a reasonably prudent person is also insufficient. The court further quoted from St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), wherein the United States Supreme Court stated that the New York Times definition of actual malice “. . . puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant’s testimony that he published the statement in good faith and unaware of its probable falsity.” In Farah the court recognized that the Linn opinion limited state control to the application of the standard set forth in New York Times, that is, that the statement to be actionable must have been made with knowledge of its falsity or with reckless disregard as to whether it was true or false. From these authorities recovery for slander on the basis of the definition of malice used by the trial court cannot be sustained. The judgment of the trial court denying recovery is therefore affirmed.


text:
    Arthur CLIFTON, Jr. et ux., Appellants, v. WILSON INDUSTRIES, INC. et al., Appellees.
    No. 8723.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 2, 1979.
    Rehearing Denied Oct. 30, 1979.
    Richard Warren Mithoff Jr., Jamail & Kolius, Houston, for appellants.

      Gay C. Brinson, Jr., Vinson & Elkins, Houston, for appellees.
   HUTCHINSON, Justice.

This is a suit for damages for personal injuries sustained by appellant, Nada Clifton, in an automobile accident at a street intersection controlled by traffic signal lights. Appellee, George Gebert, an employee of appellees, Wilson Industries, Inc. and Wilson Downhole Engineering, a Division of Wilson Industries, Inc., was the operator of the adverse motor vehicle.

The accident occurred in Odessa at the intersection of Eighth Street and West County Road. Eighth Street, consisting of five lanes and a left turn lane, runs generally east-west and West County Road, also having five lanes and a left turn lane, runs approximately north-south. The two streets intersect at a right angle. The signal light permitting a left turn from Eighth Street south on West County Road is synchronized with the signal light permitting a left turn north from Eighth Street to West County Road. A witness, Mrs. Spears, had stopped in obedience to a red light in the left turn lane on Eighth Street headed east in order to turn north on West County Road. Appellant, Nada Clifton, headed west on Eighth Street, had stopped in response to a red stop light in the left turn lane to turn south on West County Road. Mrs. Spears, after the lights facing her and the appellant changed to green, looked to her left and right and on the count of four started her left turn. At this time she saw appellee’s car entering the intersection and she blew her horn in an effort to alert the appellant. Appellant after the light fronting her had changed to green looked to her left and to her right but never saw appel-lee’s vehicle prior to impact. Appellee was driving at a speed of 30 to 35 miles per hour as he approached the intersection, the speed limit being 40 miles per hour. Appellee was driving in the curb lane as he entered the intersection and the collision occurred in that lane. He had traveled approximately 17 to 21 feet into the intersection and appellant had traveled not more than 10 to 15 feet into the intersection at the time of impact.

In response to special issues the jury found that Appellee Gebert entered the intersection against a red light which was a proximate cause of the collision; that he failed to keep a proper lookout which was a proximate cause of the collision; that appellant did not enter the intersection against a red light, but that she failed to keep a proper lookout which was a proximate cause of the collision.

The collision giving rise to the suit having occurred prior to September 1, 1973, the effective date of comparative negligence in Texas, judgment that appellant take nothing was entered.

This appeal is based upon appellant’s contention that the jury’s findings of failure to keep a proper lookout on her part and that such failure was a proximate cause of the collision have no support in the evidence, or alternatively, are supported by insufficient evidence, or alternatively, are against the great weight and preponderance of the evidence. Appellant seeks to have the judgment reversed and rendered.

In the consideration of appellant’s “no evidence” points only the evidence and any reasonable inferences which tend to support the jury answers can be considered and all evidence and inferences contrary thereto must be disregarded. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). The “against the great weight and preponderance of the evidence” points require the review and consideration of all of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

It is well established that a person is not in law required to anticipate negligent or unlawful conduct on the part of another, DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (1955); Bodine v. Welder’s Equipment Company, 520 S.W.2d 407 (Tex.Civ.App. Corpus Christi 1975, writ ref’d n. r. e.); and that a motorist entering a controlled traffic signal light intersection on a green light has a right to assume that another motorist approaching the intersection on an intersecting street faced with a red stop signal light will stop and not enter the intersection in disobedience of the red signal. DeWinne v. Allen, supra; Bodine v. Welder’s Equipment Company, supra; Samford v. Duff, 483 S.W.2d 517 (Tex.Civ.App. Corpus Christi 1972, writ ref’d n. r. e.); Perkins v. Hale, 396 S.W.2d 149 (Tex.Civ.App. Tyler 1965, writ ref’d n. r. e.); Cox v. City of Amarillo, 391 S.W.2d 494 (Tex.Civ.App. Amarillo 1965, writ ref’d n. r. e.). However, such a motorist is not entitled to close his eyes to that which is plainly visible to a person of ordinary prudence similarly situated and can indulge in such assumption only until he sees or should see that the other vehicle on the intersecting street has not obeyed or is not going to obey the stop signal. Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063 (1939); Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); DeWinne v. Allen, supra; Samford v. Duff, supra; Casey v. Standish, 492 S.W.2d 629 (Tex.Civ.App. Amarillo 1973, no writ).

The record here contains sufficient evidence to support the jury finding that appellant failed to keep a proper lookout. Her testimony was that she looked but did not see. Yet the evidence reveals no obstructions blocking her view from her stopped position at the intersection and that she traveled into the intersection only 10 to 15 feet before being struck by the vehicle of Appellee Gebert. Mrs. Spears, from her stopped position at the traffic light, observed the approach of the Gebert vehicle and the collision which occurred 17 to 21 feet into the intersection. This is an indication that Gebert was in close proximity to the entrance of the intersection when appellant was in a stopped position. From this the jury had ample evidence to conclude that appellant should have seen the approach of the adverse vehicle and that her failure to do so constituted negligence on her part. The fact that she had the right of way does not permit her to drive into a path of danger and escape a finding that she failed to exercise the care of a ordinary prudent person. Samford v. Duff, supra; Skyline Cab Co. v. Bradley, 325 S.W.2d 176 (Tex.Civ.App. Houston 1959, writ ref’d n. r. e.); Checker Cab Co. v. Wagner, 199 S.W.2d 791 (Tex.Civ.App. El Paso 1946, no writ).

“Proximate cause” in Texas includes two essential elements: (1) foreseeability and (2) cause in fact, both of which must be shown to exist. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961); Bodine v. Welder’s Equipment Company, supra; Casey v. Standish, supra; Polasek v. Quinius, 438 S.W.2d 828 (Tex.Civ.App. Austin 1969, writ ref’d n. r. e.). In order for a negligent act or omission to be a “cause in fact” it must be one “but for which” the accident or injury would not have occurred; that is, the proof must show that the act or omission produced the event and without such act or omission the event would not have occurred. Baumler v. Hazelwood, supra; Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951); Thornton v. Campise, 459 S.W.2d 455 (Tex.Civ.App. Houston-lst Dist. 1970, writ ref’d n. r. e.). If appellant by the keeping of a proper lookout had seen Appel-lee Gebert’s vehicle she could have remained in the stopped position and thereby have avoided the accident and her failure to do so was a “cause in fact” of the accident. The speed and the failure to decrease such speed as a vehicle approaches an intersection is usually the factor that alerts others that it is likely to enter the intersection regardless of the right of way. Had appellant observed the approach of the appellee vehicle and noted its speed, she could have reasonably foreseen the likelihood of its failing to stop in. obedience to the red light before moving from her stopped position. Therefore, the foreseeability element of proximate cause was established. A person of ordinary intelligence and care would have anticipated the resulting accident by then moving into the intersection. Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970); Bell v. Campbell, 434 S.W.2d 117 (Tex.1968); Bodine v. Welder’s Equipment Company, supra.

The judgment of the trial court is affirmed.


author: CARVER, Justice.

text:
    K. L. BRACKEN, Appellant, v. HAID & KYLE, INC., Appellee.
    No. 19844.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 2, 1979.
    Rehearing Denied Nov. 9, 1979.
    Michael V. Killough, Michael Y. Killough, Inc., Dallas, Larry B. Bach, Forney, for appellant.
    Pat M. Reed, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   CARVER, Justice.

Bracken appeals from a summary judgment rendered in favor of Haid & Kyle, Inc. We affirm the summary judgment on the ground that Haid & Kyle was a good faith purchaser for value at the foreclosure sale.

Bracken, as the assignee of a corporation, originally sought specific performance of a contract for the sale of a home from the owners, Mr. and Mrs. Matlock who had repudiated the contract. While the suit was pending, the Matlocks defaulted on a note of $25,000 secured by a deed of trust and the home was posted for foreclosure. Bracken added the mortgagee and his tras-tee as parties and sought to enjoin the foreclosure sale on the ground that he had offered to redeem the mortgage debt but the mortgagee would not tell him how much was owed. The injunction was denied, no appeal was sought, and the foreclosure proceeded with Haid & Kyle, Inc. being the successful bidder for $45,000. Bracken again amended his pleadings and sought to set aside the sale to Haid & Kyle, Inc. on the ground that the mortgagee’s refusal to give him the debt balance and allow him to redeem voided the sale. The trial court sustained a summary judgment in favor of Haid & Kyle, Inc. and Bracken dismissed the other defendants.

Bracken’s claim to the right of redemption is based upon his equitable title arising from the executory contract of sale from the Matlocks which would have ripened into legal title, had his suit against the Matlocks been successful. We decline to decide if an equitable title will support the right of redemption in the absence of a sufficient record before us. However, we do hold that Bracken, with only an equitable claim to title, had the burden to prove that Haid & Kyle, Inc. was not a purchaser in good faith as a condition to setting aside the sale. Connor v. Lane, 355 S.W.2d 223 (Tex.Civ.App.—Waco 1962, no writ). The summary judgment proof offered by Bracken did not raise or support a challenge to Haid & Kyle’s good faith purchase at the foreclosure sale. In order to set aside the foreclosure sale to a thus established good faith purchaser, Bracken was required, but failed, to tender the amount of the bid of $45,000 even though the foreclosure may have been void as between the mortgagee and Bracken. Pachter v. Woodman, 534 S.W.2d 940 (Tex.Civ.App.—Tyler 1976) rev’d on other grounds, 547 S.W.2d 954 (Tex.1977).

The summary judgment proof shows Haid & Kyle to be a good faith purchaser. Bracken’s response failed to raise a fact issue as to their good faith. Additionally, Bracken failed to tender the prior bid and payment which equity required as a condition for the equitable relief sought. Consequently, we must conclude that the summary judgment rendered was correct.

Affirmed.


author: HUGHES, Justice.

text:
    Claudia Mae Hall CARTER, Appellant, v. Robert Donald HALL, Appellee.
    No. 18221.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 11, 1979.
    Rehearing Denied Nov. 15, 1979.

      Hall, Laden & Jacobs and William T. Hall, Austin, for appellant.
    King & Massey and Marion L. Massey, Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

Claudia Mae Hall Carter has appealed the judgment of trial court modifying the original divorce decree by ordering her to pay child support. The managing conservator of the children is Robert Donald Hall, their father, and petitioner in the trial court in this suit.

We affirm.

Trial court heard the case on April 3, 1979, without a jury, and found material and substantial changes in the conditions affecting the parties and the children since the original order was entered in 1971. Mrs. Carter was ordered to pay $58.00 per week in child support until the youngest child reaches the age of eighteen years.

Mrs. Carter’s points of error all complain of abuse of the trial court’s discretion in ordering such payment alleging that:

1. There was no evidence to compare the children’s present needs with their needs in 1971. We agree.
2. There was insufficient evidence of material and substantial change in conditions. We do not agree.
3. Trial court’s finding of such change was against the great weight and preponderance of the credible testimony. We do not agree.
4. Trial court failed to consider the abilities of the parties to contribute to children’s support. We do not agree.
5. Trial court’s finding that order was in best interest of children was against great weight and preponderance of credible testimony. We do not agree.

Evidence in the trial shows that: The parties divorced in 1971. Mr. Hall was appointed managing conservator. Mrs. Carter was not required to pay child support. Both parties have remarried. Mr. Hall’s present wife has two children from a prior marriage. Mr. and Mrs. Carter have none living with them.

Hall testified to making $182.00 per week gross ($9,464.00 per year) in 1971 and to a gross in 1978 of $28,780.00 (combined with his wife’s income), further that his individual take-home pay in 1978 was $243.46 per week. His wife also receives $100.00 a month in child support. Hall further testified that his monthly expenses are approximately $1600.00 to $1700.00.

Mrs. Carter testified to a 1971 gross wage of $152.00 per week and to a 1979 take-home pay of $160.00 per week, and to a gross income in 1978 of $22,902.00 (combined with her husband). She testified that she has had to take a cut in pay of over $1.00 per hour and so expects to make less in 1979. She stated that she and her husband have $1,138.00 in monthly expenses.

The only item in the record that could be construed as bearing on the evidence of the children’s needs in 1971 would be their ages at the time (6 months and 7 years). It has been held that increased age of children by itself will not support a modification of a support order “unless the record contains sufficient evidence from which a comparison can be made between the support needs at the time of the prior order and the current needs of the children”. Bergerac v. Maloney, 556 S.W.2d 586 (Tex.Civ.App.—Dallas 1977, writ dism’d).

The trial court at the time of the divorce did not order support for the two children. This could not have been because they did not have needs. Judicial notice can be taken that all living human beings have needs. Therefore, the court’s failure to order Mrs. Carter to pay any child support must have been based on her circumstances at that time — not the children’s. The law provides “if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the entry of the order or decree . . it can be modified. (Emphasis ours.) Tex. Family Code Ann. § 14.08(c)(2) (Supp.1978-79).

No one can argue that Mrs. Carter is not a person affected by the order or portion of the decree to be modified. There is ample evidence to show what Mrs. Carter’s condition was wage-wise at the time of the divorce ($152.00 average gross pay) and what it was eight years later at the time of the trial ($160.00 per week take-home, $22,-902.00 gross including husband’s wages). The undisputed testimony shows that at the time of this trial she and her husband had built a home; that they owned two automobiles; that she felt sufficiently affluent to promise her daughter one of those automobiles or to buy her a smaller car. Mrs. Carter even admitted her ability to pay $100.00 a month and that she would be more willing to contribute to the support of her children “if I got a little more out of them then it would be different”.

We overrule all of Mrs. Carter’s points of error except number one, but because we have held there to be sufficient evidence to support trial court in the matter of change of Mrs. Carter’s circumstances, point of error number one is immaterial.

We agree that trial court should have set provisional appellate attorney’s fees for both parties with the evidence it had before it. However, that failure does not affect the disposition of this appeal.

Affirmed.

MASSEY, C. J., not participating.


author: YOUNG, Justice.

text:
    WADE CONTRACTORS, INC., Appellant, v. C. W. & A., INC., Appellee.
    No. 1395.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 11, 1979.
    Rehearing Denied Nov. 15, 1979.
    Larkin T. Thedford, Edna, for appellant.
    Emmett Cole, Jr., Victoria, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from a suit brought by a general contractor alleging breach of contract by a subcontractor who failed to supply gravel for the construction of a highway for the State of Texas. Wade Contractors, Inc., filed suit against C. W. & A., Inc., for breach of contract and asked for actual and exemplary damages. Defendant responded with a general denial and a cross-action. Trial was to the court without a jury. After the plaintiff had presented witnesses, both parties closed. Thereafter, the trial court rendered a take nothing judgment in favor of the defendant. No findings of fact or conclusions of law were requested or filed. The plaintiff appeals. We affirm.

The record fairly indicates the following events. In May of 1976 the State Department of Highways & Public Transportation solicited bids for the construction of a new road to replace an existing county road in Lavaca County (FM 3283). Appellee learned of the project and the letting of bids by the State and on July 2, 1976, offered appellant, who was preparing to submit a bid on the project, a quotation by telephone for the cost of supplying the base material delivered to the construction site. The quotation set out that the price of the materials would be $4.45 per cubic yard, that the amount of materials would be approximately 10,000 cubic yards, and that the materials were to meet State specifications. Appellant prepared a written confirmation of this quotation on July 2,1976, setting out the same price, specification data, place of delivery, and project reference number. This was signed by appellee.

Thereafter, the appellant was awarded the contract by the State and appellant sent a written acceptance, dated August 3, 1976, of the offer to the appellee which embodied all the terms of the previous quotation and confirmation. Additionally, appellant stated that construction on the foundation would be during the month of October and that appellee should be prepared to deliver during that month. But no demand for delivery was made during the month of October.

On or about November 16, 1976, the parties again entered into oral negotiations for delivery of base materials for the same project. On November 17, 1976, appellee advised appellant in a hand written note of a change in price for the materials, from $4.45 per cubic yard to $5.05 per cubic yard, and a change in origin of the materials, from the Fordtram area to the Cuero area. Quantity, project reference number and delivery site remained the same, but there was no mention of delivery date. Testimony in the record, however, points to the fact that appellant demanded delivery on November 18, 1976; that appellee was ready to deliver; but that appellant cancelled the demand.

There was no communication between the parties until February 15, 1977, when the appellant gave oral notice to the appellee that delivery on the contract should begin on or about February 21. On February 20, appellant cancelled delivery for the 21st but ordered performance on the contract by delivery on February 24. Appellee gave notice on February 23 that delivery on that date, the 24th, was impossible due to a shortage of trucks. Whereupon the appellant began arranging for the supply of gravel and the hauling thereof from sources other than the appellee. Thus, appellee was thereby precluded from further possibility of performance.

Appellant brings forward two points of error. The first point asserts that the trial court erred in rendering judgment for the appellee based on the evidence submitted by appellant. From its argument the appellant seems to contend that it is entitled to judgment as a matter of law.

In that regard we deem the appropriate rule for us to apply here is as follows. In a nonjury case, where findings of fact and conclusions of law are neither requested nor filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Lassiter v. Bliss, 559 S.W.2d 353 (Tex.Sup.1977); Plata v. Guzman, 571 S.W.2d 408 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n.r.e.).

All of which brings us to an examination of the evidence in the record. In presenting its evidence to establish the elements of its contract, the appellant’s chief problem was with the element of time of performance. In fact, after the date of November 18,1976, there is no definite time indicated for appellee to perform until February 24, 1977, when the alleged breach occurred. So, after appellant cancelled the November 18 scheduled delivery by the ap-pellee, no definite time of performance existed. In this instance the law implies an agreement that performance will be within a reasonable time. Joines v. Burke, 540 S.W.2d 798 (Tex.Civ.App.—Corpus Christi 1976, no writ); Houston County v. Leo L. Landauer & Associates, Inc., 424 S.W.2d 458 (Tex.Civ.App.—Tyler 1968, writ ref’d n.r.e.). Further, the reasonable time allowed by law for performance of a contract which does not fix a time for performance depends on circumstances in each case, including the nature and character of the thing to be done and the difficulty surrounding and attending its accomplishment. The question is generally for the trier of facts. Houston County v. Leo L. Landauer & Associates, Inc., supra.

Here the trial judge, as the trier of facts, was entitled to infer, under the circumstances of this case, that a period of over three months (November 18 to February 24) was an unreasonably long time for the appellee to stand ready to deliver on demand of the appellant. Or, considering the brief time between the date of demand for delivery and the date for delivery on February 24, the trial court could have reasonably inferred that the time appellant allowed for performance by the appellee was unreasonably brief. Finally, the trial court could have found that the appellant just did not meet its burden of proof on the issue of time for performance. Under any of those theories, the judgment of the trial court must be affirmed. Appellant’s point 1 is overruled.

The second point of the appellant contends that the trial court erred in granting judgment'for the appellee at the conclusion of appellant’s case in that appellant had introduced a prima facie case entitling appellant to judgment. Appellant’s chief argument, as we understand it, under this point is that the trial court rendered judgment without evidence introduced by the appellee and, thus, a complete trial on the merits was not accorded the appellant. The trial terminated on April 26,1978, according to the statement of facts, with the following:

“Mr. Cole: That’s all I have, yóur Honor.
Mr. Thedford: No further questions.
The Court: You may step, down, Mr. Wade.
Mr. Thedford: We close, your Honor.
Mr. Cole: Your Honor, I’d like to have about fifteen minutes to confer with my client.
The Court: Okay, we’ll stand in recess for about fifteen minutes.
(Recess)
Mr. Cole: We close, your Honor.”

Thereafter, the judgment was signed and ordered entered on May 10,1978. It is clear to us that no party was precluded from presenting any evidence. Nor has it been demonstrated to us that the trial judge failed to consider all the evidence presented and all the issues raised. Appellant’s point 2 is overruled.

The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    Homer Kent COFFEE, Appellant, v. Giddeon COFFEE et al., Appellees.
    No. 1453.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 11, 1979.
    Rehearing Denied Nov. 15, 1979.

      R. Norvell Graham, Jr., Del Rio, for appellant.
    Houston C. Munson, Jr., Gary J. Schroeder, Gonzales, for appellees.
   OPINION

NYE, Chief Justice.

This is a suit brought by Giddeon Coffee (as guarantor) and the Nixon State Bank against Homer Kent Coffee, defendant, seeking to recover the overdue outstanding balance on a promissory note, interest and attorney’s fees. The defendant filed a cross-action alleging that he had furnished labor to plaintiff (Giddeon Coffee) in plaintiff’s lumber yard, home construction and home improvement business, or in the alternative, that the plaintiff and defendant were partners in such business. Homer Coffee prayed for an accounting and his share of the partnership profits. The trial was before a jury. In response to special issues submitted, the jury found all issues against the defendant. The trial court entered a judgment awarding plaintiff the principal balance due on the promissory note, interest and attorney’s fees, plus the additional sum of $650.00, which represented other debts the defendant owed the plaintiff. The defendant appeals.

Our initial problem in this appeal is the manner in which this case has been briefed. It has long been the policy of this Court to indulge in a liberal construction of the briefing rules and to give every effect possible thereto. Rio Delta Land Co. v. Johnson, 566 S.W.2d 710, 713 (Tex.Civ.App.—Corpus Christi 1978, n. r. e.). See our local rules relative to “Briefs” in Continental Oil Co. v. Dobie, 552 S.W.2d 183, 187 (Tex.Civ.App.—Corpus Christi 1977, n. r. e.) and Rules 414-422, T.R.C.P. However, we cannot even determine from appellant’s brief the nature of the case as it relates to any of the points of error he has brought forward in this appeal. Appellant’s brief being such a flagrant violation of the briefing rules, similar briefs in the future will be stricken and ordered re-briefed. See Rule 422, T.R.C.P. The deficiencies of this brief are so evident that even a cursory glance at Rule 418 should have apprised the appellant that his brief, for the most part, was insufficient to meet the minimum standards required. Even after such deficiencies were pointed out by appellee, appellant made no attempt to correct them in a reply brief. See Wirth, Ltd. v. Panhandle Pipe & Steel Co., 580 S.W.2d 58 (Tex.Civ.App.—Tyler 1979, no writ). We will in this case, however, examine the entire record in an effort to understand appellant’s case as it was presented during the course of the trial so that we can place in the proper appellate perspective, in so far as possible, the general arguments contained in the only two pages in appellant’s brief devoted to the development of his six points of error.

The crux of appellant’s complaints, as we understand them, concerns point of error four, the only point of error that the appellant urged during oral argument before this Court. In this point, appellant contends that the trial court “erred in failing to instruct Jury to return judgement (sic) upon Appellant’s cross action.”

Appellant’s “statement, argument and authorities” sections under this point of error state in substance that: 1) appellant filed a cross-action based upon Rule 185, T.R.C.P., for labor he performed for plaintiff; 2) plaintiff filed an unsworn answer in response to the cross-action; and 3) when plaintiff rested his case, appellant made an oral motion for judgment pursuant to his cross-action which was denied by the trial court. Appellant apparently contends that the trial court committed reversible error by denying this motion because plaintiff (as cross-defendant) failed to file a sworn denial. Therefore, according to appellant’s argument, he was entitled to judgment on his pleadings as a matter of law.

Rule 185, Texas Rules of Civil Procedure, provides in relevant part, as follows:

“When any action or defense is . founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within knowledge of the affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claims shall, before an announcement of ready for trial in said cause, file a written denial, under oath . . . ” (Emphasis added.)

Generally under Rule 185, where a suit is based upon the personal services rendered, a plaintiff should swear to a systematic record of all charges and payments, entered in regular sequence, before he is entitled to the benefits under the rule. In other words, a statement or invoice must be set forth in the pleadings, or by an attached and incorporated exhibit which clearly identifies the nature of the items constituting the sworn account. This is particularly so where it is a suit for personal services. See Juarez v. Dunn, 567 S.W.2d 223, 226 (Tex.Civ.App.—El Paso 1978, writ ref’d, n. r. e.); Glasco v. Frazer, 225 S.W.2d 633 (Tex.Civ.App.—Dallas 1949, writ dism’d). Rule 185, by its express terms, requires that a claim for labor be supported by a systematic record which has been entered in regular sequence.

Appellant’s pleadings pertaining to his cross-action allege, in substance, that between the dates of February 1, 1976, and February 1, 1977, appellant furnished labor to plaintiff in the course of plaintiff’s lumber yard, house constructing, and home-improving business; 2) that the furnished labor consisted of 40 hours per week for 52 weeks at the reasonable pay of $8.00 per hour; 3) that plaintiff became indebted to appellant by reason of such labor in the amount of $16,640.00, (the reasonable value of said labor), and 4) that appellant received $6,000.00 from the proceeds of the promissory note on October 22, 1976, for labor furnished from February 1, 1976, to June 1, 1976, leaving an outstanding balance due appellant of $10,640.00. In the alternative, appellant alleged that he became a partner in plaintiff’s lumber yard and construction business and that an accounting for the period from February 1, 1976, to February 1, 1977, would show appellant’s interest in the partnership to be an amount equal to $20,000.00. In accordance with these allegations, appellant prayed for a judgment in the sum of $10,640.00 for his labor, or in the alternative, $20,000.00 for his share of the partnership profits.

The validity of appellant’s contentions are predicated, in part, upon the validity of his assumption that his cross-action pleadings complied with the minimum requirements of Rule 185. Although appellant’s cross-action contained an affidavit sworn to and in the form required by Rule 185, the allegations contained in his cross-action are insufficient to bring it within Rule 185 because appellant’s cross-action is upon a claim for labor performed and there has been no showing, either in the petition or the accompanying affidavit, that a systematic record pertaining to such labor had been maintained. The nature of such labor is not specifically stated and there is only a general allegation, without further itemization, that labor was performed for 52 weeks at a rate of 40 hours per week. Compare Juarez v. Dunn, 567 S.W.2d 223, 226 (Tex.Civ.App.—El Paso 1978, writ ref’d, n. r. e.), and see 2 McDonald, Texas Civil Practice, § 6.30, p. 160 (1970).

The business relationship between appellant and plaintiff underlying appellant’s claim for labor was in dispute throughout the trial. Appellant presented evidence tending to support three theories of recovery: 1) a partnership between appellant and plaintiff for the construction of a specific house; 2) a partnership between appellant and plaintiff in plaintiff’s entire lumber yard and home-construction business; and 3) an oral contract whereby appellant furnished labor to plaintiff in the conduct of plaintiff’s business. Contrary to the statement made in appellant’s brief, appellant moved for a directed verdict after both parties had presented evidence pertaining to plaintiff’s suit on the note, and not at the close of plaintiff’s evidence. Prior to the time appellant moved for a directed verdict, appellant himself had presented evidence which tended to negate his assertion that his cross-action was one within the contemplation of Rule 185.

Plaintiff, who is the uncle of appellant, generally testified that he and appellant had engaged in several informal business transactions in the past. According to plaintiff’s theory of the case, the note forming the basis of plaintiff’s action against appellant was the personal obligation of appellant and that plaintiff had signed the note as a guarantor. Separate and apart from appellant’s obligations pursuant to the terms of the note, plaintiff testified that he and appellant had agreed to a business arrangement whereby plaintiff obtained the financing to purchase three lots and to construct a home on the lots in consideration for appellant’s agreement to provide the labor in building the home. Plaintiff testified in substance that the parties had agreed to share equally the profits they anticipated would result upon the sale of the home, but that after the construction had been completed, the parties were unable to obtain a purchaser. Thereafter, plaintiff testified that he was unable to find the appellant.

Plaintiff generally further testified that he had borrowed $12,000.00 toward financing the construction of the home, and when these obligations became due, he had the home appraised through a bank as a prerequisite for borrowing money to pay off the purchase money and construction loan. The home was appraised at a value of $16,-000.00, which represented $4,000.00 total profit over the $12,000.00 cost. Because the note which plaintiff had signed as guarantor also became due, plaintiff testified that he paid $2,000.00 to the bank, representing appellant’s portion of the profit. Thereafter, plaintiff stated he paid the remaining outstanding balance plus interest due on the note, and then filed suit seeking to recover the original principal sum due on the note, less the $2,000.00 payment representing appellant’s portion of the profit on the home.

At the close of the testimony, the trial judge submitted a charge to the jury which presented each of appellant’s three theories of recovery on his cross-claim. Based upon the jury’s answers to these special issues, it was evident that the jury did not believe appellant’s theory of the case. The trial court entered judgment denying recovery on his cross-action.

We have examined the entire record in this case and have considered each of appellant’s points of error as best we can under the record before us. We conclude that each is without merit. The judgment of the trial court is therefore affirmed.


text:
    RUBENSTEIN FOODS, INC., Appellant, v. WINTER GARDEN, INC., Appellee.
    No. 1531.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 11, 1979.

      Ronald L. McKinney, Hoppenstein & Prager, Dallas, for appellant.
    Thomas G. Sharpe, Jr., Brownsville, for appellee.
   OPINION

NYE, Chief Justice.

This is a plea of privilege case. Plaintiff, Winter Garden Inc., filed suit against defendants, Rubenstein Foods, Inc., (Ruben-stein) and Dionieio Galvan, Jr., (Galvan), to recover damages for the alleged theft and conversion by defendants of 2,700 pounds of shrimp which had been stored in plaintiff’s warehouse. Only defendant Rubenstein filed a plea of privilege, which was overruled by the trial court. Rubenstein appeals.

Plaintiff alleged in substance that: 1) 54 cases of frozen shrimp which plaintiff was holding for the account of Toyomeka (America) Inc., had been stolen; 2) Galvan had repackaged the stolen shrimp; 3) on or about March 8, 1978, Rubenstein purchased the shrimp (then located in the Tex-Mex Warehouse in Brownsville, Texas) from Galvan; 4) prior to this sale, Rubenstein was on notice that 54 cases of frozen shrimp had been stolen from plaintiff and that Galvan did not have title to the shrimp that he sold to Rubenstein; and 5) that the fair market value of the stolen shrimp was $7,830.00. Plaintiff prayed for the recovery of the value of the stolen shrimp, exemplary damages and reasonable attorney’s fees.

Galvan filed a general denial. Ruben-stein filed a general denial subject to a plea of privilege which alleged venue to be in Dallas County, the county of its corporate residence. Plaintiff controverted Ruben-stein’s plea of privilege and alleged that venue was proper in Cameron County, under Subdivision 4 of Article 1995.

Prior to the venue hearing, plaintiff and Galvan stipulated to certain facts which were then dictated into the record at the venue hearing: 1) “[I]n January of 1978, Dionieio Galvan, Jr., was a resident of Brownsville, Cameron County, Texas, and is today a resident of Brownsville, Cameron County, Texas; ” and 2) “[I]n the month of January 1978, Dionieio Galvan, Jr., sold shrimp to Rubenstein Foods, Inc.” The trial court heard testimony from William M. Carmichael, the General Manager of Winter Garden, and received into evidence various business records pertaining to the plaintiff’s business. After the hearing, the trial court overruled Rubenstein’s plea of privilege without filing findings of fact or conclusions of law.

Under Subdivision 4 of Article 1995, where there are resident and non-resident defendants, it has long been the rule that in order to maintain venue in the county of the resident defendant, the plaintiff is required to: 1) plead and prove that one of the defendants is a resident of the county of suit; 2) plead and prove a cause of action against the resident defendant; and 3) allege a joint cause of action against the non-resident defendant or a cause of action against the resident defendant which is so intimately connected with the cause of action against the non-resident defendant that both defendants are properly joinable to prevent a multiplicity of suits. Proof of this connection between the resident and non-resident defendants is supplied by the allegations in the plaintiff’s petition. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); Pinney v. Cook, 558 S.W.2d 33 (Tex.Civ.App.—Corpus Christi 1977, no writ); Heldt Bros. Trucks v. Silva, 464 S.W.2d 931 (Tex.Civ.App.—Corpus Christi 1971, no writ); Pittsburgh Plate Glass Co. v. Bragg, 383 S.W.2d 623 (Tex.Civ.App. — Dallas 1964, writ dism’d).

Rubenstein brings forward four points of error in this appeal. In points of error one and two, Rubenstein complains in substance that the evidence was legally and factually insufficient to support the trial court’s implied finding that Galvan was a resident of Cameron County. In points of error three and four, Rubenstein complains in essence that the evidence was legally and factually insufficient to support the trial court’s implied finding that plaintiff has a cause of action against Galvan.

Because findings of fact were neither requested nor filed, we must presume that the trial court resolved every issue of fact raised by the evidence in plaintiff’s favor. We view the evidence in the light most favorable to such findings, disregarding all that is contrary thereto. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup.1968); James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959). Plaintiff’s theory of the case was presented through the aforementioned stipulations and through the testimony of witness William Carmichael, the General Manager for plaintiff. Carmichael testified that the theft of 54 cases of frozen headed brown shrimp of the 21 to 25 count per pound was discovered on January 3, 1978. The police were summoned and an investigation ensued. Thereafter, on January 6, during the course of the investigation, Carmichael and a police officer visited Tex-Mex Cold Storage, which was located in Brownsville. Carmichael testified that Tex-Mex was then in possession of shrimp which, he concluded from his own observations and from the statements of others, was the same shrimp stolen from the plaintiff’s warehouse.

The only evidence that Galvan was a resident of Cameron County was the stipulation to that effect which was read into the record by plaintiff’s counsel at the venue hearing. The only evidence which linked Galvan to the stolen shrimp was the circumstantial evidence and that contained in the stipulation: that is, that Galvan had sold shrimp to Rubenstein in January of 1978; that plaintiff’s shrimp had been stolen; and Carmichael’s conclusion that the shrimp which was being held by Tex-Mex on January 6, 1978, for the benefit of Rubenstein was the same shrimp that had been stolen from plaintiff’s warehouse.

Although counsel for Rubenstein pointed out to the trial judge that Rubenstein was not a party to the stipulation, he also stated, “I presume if Mr. Galvan were here today, that is what his testimony would be.” Shortly thereafter, in an attempt to obtain clarification of Rubenstein’s position, the trial judge specifically asked Rubenstein’s attorney what his position was concerning the stipulation. Counsel for Rubenstein answered as follows:

“Your Honor, it is not my stipulation. I have not agreed to the stipulation and I certainly can’t object if (Galvan’s attorney) wants to stipulate to those facts to the Court in agreement with (plaintiff’s attorney). Certainly, we are not a party to the stipulation.” (Emphasis added.)

Plaintiff relies on the emphasized portion of the above quoted statement to support its contention that Rubenstein waived its right to complain of the stipulation on appeal. Rubenstein, on the other hand, relies upon the remaining portions of this statement to support its contention that it is not bound by the stipulation because it was not a party to the stipulation.

It has been generally stated that a stipulation entered into between the plaintiff and one defendant, for the purposes of the venue hearing only, by which they agree that that defendant is a resident of the county of the suit, and/or that plaintiff has a valid claim against the resident defendant does not bind the non-resident defendant who is not a party to the stipulation. See LaSorsa v. Burr, 516 S.W.2d 265, 267 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ); Gilley v. Morse, 375 S.W.2d 569 (Tex.Civ.App.—Dallas 1964, no writ). On the other hand, if all parties to the suit, including the non-resident defendant, enter into the stipulation, the non-resident defendant will also be bound by the stipulation and will not be heard to complain on appeal. See Wood v. Self, 362 S.W.2d 188 (Tex.Civ.App. —Dallas 1962, no writ). In Gilley v. Morse, 375 S.W.2d 569 (Tex.Civ.App.—Dallas 1962, no writ), the appellate court specifically held that the complaining non-resident defendant could not be bound to a stipulation to which he was not a party, and to which he had, in fact, “objected and protested against the stipulation so far as he was concerned.” Gilley v. Morse, 375 S.W.2d at 570. See also Rule 11, Texas Rules of Civil Procedure.

Here, Rubenstein objected to the stipulation on the basis that it had not agreed to the stipulation and that it was not a party to the stipulation. We do not agree that Rubenstein’s general acknowl-edgement to the effect that plaintiff and Galvan were at liberty to enter into a mutually binding stipulation operated to bind Rubenstein. It, therefore, became incumbent upon plaintiff to offer other evidence independent of the stipulation to prove the venue facts necessary to maintain venue in Cameron County. See LaSorsa v. Burr, 516 S.W.2d 265 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ); Gilley v. Morse, 375 S.W.2d 569 (Tex.Civ.App.—Dallas 1964, no writ). This plaintiff failed to do, and the trial court erred by considering the stipulations as such.

We conclude after reviewing the entire record, including the stipulated facts, and after indulging every reasonable inference in support of the judgment rendered by the trial court, that the evidence is insufficient to establish all of the necessary venue facts in favor of plaintiff. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 100 (1953).

Our disposition of these points of error necessitates that we reverse the trial court’s order overruling Rubenstein’s plea of privilege. We are of the opinion, after reviewing the entire record in this case, that the case was not fully developed and that the needs of justice would be better served by remanding this venue cause for fuller development of the facts than by ordering it transferred to Dallas County, Texas. See Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948); Tijerina v. Nerio, 497 S.W.2d 72 (Tex.Civ.App.—Corpus Christi 1973, no writ); Commercial Standard Insurance Company v. Nunn, 445 S.W.2d 586 (Tex.Civ.App.—Texarkana 1969, writ ref’d, n. r. e.).

Accordingly, the judgment of the trial court is hereby reversed and the cause is remanded for a new hearing on Ruben-stein’s plea of privilege. REVERSED and REMANDED.


author: HALL, Justice.

text:
    GENERAL PORTLAND, INC., Trinity Division, Appellant, v. WITT & SON SAND & GRAVEL, INC., Appellee.
    No. 6081.
    Court of Civil Appeals of Texas, Waco.
    Oct. 18, 1979.

      George C. Chapman, Jerry Grissom, Thompson & Knight, Dallas, for appellant.
    Charles R. Jordan, Glen Rose, for appel-lee.
   HALL, Justice.

Plaintiff-appellee Witt & Son Sand & Gravel, Inc., brought this suit in Somervell County against defendant-appellant General Portland, Inc., Trinity Division, for $14,-777.00 asserting that defendant had breached a contract to purchase sand and gravel from plaintiff. The basic allegations in plaintiff’s petition were that defendant had failed to receive, and accordingly had failed also to pay for, the minimum amount of material it was bound to accept and pay for under the contract.

Defendant filed its plea of privilege to be sued in Dallas County, the county of its residence. Plaintiff controverted the plea of privilege on the ground that the suit could be maintained in Somervell County under the provisions of subdivision 5 of Article 1995, Vernon’s Tex.Civ.St. After a hearing without a jury, the plea of privilege was overruled. Defendant appeals. We reverse the judgment.

Subdivision 5 of Article 1995 provides that if a defendant has contracted in writing to perform an obligation in a particular county, expressly naming the county or a definite place therein in the writing, then suit upon that obligation may be brought against the defendant in that county.

In its pertinent parts, the contract sued upon provided that plaintiff agreed to sell and defendant agreed to buy a minimum of 10,000 tons of sand and gravel per month at the price of 85<t per ton during the term of the contract, and that the material would be delivered to defendant at plaintiff’s plant. The contract did not name the place of payment by defendant.

On the hearing of the plea of privilege plaintiff proved that during seven months of the contract term defendant purchased specified amounts of the material which were less than 10,000 tons per month, making a total of 29,168 tons short of the minimum requirement. Plaintiff also proved that its plant is in Somervell County.

The controlling facts in the case of Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120 (1952), were virtually identical to the facts in our case. In Rorschach, the Supreme Court held (at 248 S.W.2d 123) that under these facts, where the seller seeks money damages only for the breach of the contract, the essential obligation in the suit for venue purposes is that of payment, “and since no place of performance of that obligation is stated in the contract, no exception to the general rule of venue at the domicile is involved.”

We sustain defendant’s second point of error in which it is asserted that the evidence is legally insufficient to maintain venue in Somervell County under subdivision 5.

The judgment of the trial court is reversed, and judgment is rendered sustaining defendant’s plea of privilege and transferring this cause to the District Court of Dallas County.


author: McCLOUD, Chief Justice.

text:
    SCHERING CORPORATION, Appellant, v. Walter K. GIESECKE et ux, Appellees.
    No. 5292.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 18, 1979.
    Rehearing Denied Nov. 15, 1979.

      Alice Giessel and Henry P. Giessel, Tal-bert, Giessel & Stone, Houston, for appellant.
    John L. Russell, Ragan, Russell & Rorschach, Pearson Grimes, Butler, Binion, Rice, Cook & Knapp, George E. Pletcher and Rod Steinburg, Helm, Pletcher, Hogan & Burrow, Otway B. Denny, Jr. and Jerry V. Walker, Fulbright & Jaworski, Houston, Preston Shirley, Mills, Shirley, McMecken & Eckel, Galveston, for appellees.
   McCLOUD, Chief Justice.

Plaintiffs, Walter K. Giesecke and wife, Jean A. Giesecke, were granted a $200,000 judgment against defendant, Schering Corporation, based on jury findings that Scher-ing failed to give an adequate warning regarding the use of its drug, “Garamycin.” Schering appeals. We reverse and remand.

Walter K. Giesecke was admitted to An-gleton-Danbury Hospital on October 22, 1971, by Dr. Holt, who on that date performed surgery, on plaintiff and discovered plaintiff had a ruptured diverticulum of the colon. Dr. Holt repaired the colon and prescribed Keflin and Penicillin. Dr. Holt called in Dr. Edwards, a physician specializing in general surgery in Brazoria County, for his opinion on plaintiff’s post-operative care. On October 25, Dr. Edwards prescribed Garamycin. Plaintiff’s condition worsened and a second surgery was performed by Dr. Edwards on October 28. At that time, it was discovered that the original suture had broken down. Plaintiff had developed peritonitis. Dr. Edwards performed a partial colectomy. The abdomen was “washed” with an antibiotic solution containing “Kanamycin.” The abdomen was closed, catheters were installed in the upper and lower areas of the cavity, and a Kanamycin solution was dripped through the upper catheter and allowed to drain out of the lower one. During this time, Gara-mycin was being administered by injections. Plaintiff’s kidney function was being monitored by measuring his urinary output. Plaintiff was given an injection of Garamy-cin at approximately 9:30 a. m. on October 31. At approximately 5:30 p. m. that same day, plaintiff suffered an acute renal failure, at which time a diuretic, “Lasix,” was administered. Plaintiff’s condition continued to worsen. On November 4, he was transferred to John Sealy Hospital in a coma suffering from severe uremic poisoning. He was given hemodiolysis treatments to cleanse his blood of the uremic poison. Mr. Giesecke subsequently regained consciousness and was found to be totally deaf. Further testing confirmed a total and permanent loss of hearing.

Plaintiffs originally sued Doctors Holt and Edwards, Angleton-Danbury Hospital, and Sehering Corporation. Plaintiffs alleged that the doctors failed to meet minimum standards of professional care in a number of ways, including the prescribing of “potent antibiotic” drugs. Plaintiffs alleged that Sehering failed to give adequate warnings as to the danger of its drug Gara-mycin. In the prayer of plaintiffs’ original petition, they sought a joint and several judgment against all defendants. Doctors Holt and Edwards paid plaintiffs $265,000 in settlement prior to trial. Plaintiffs and Sehering agreed to an order dismissing the hospital. Plaintiffs then filed their first amended original petition suing only Scher-ing for failure to give an adequate warning of the danger involved in using Garamycin. Sehering sought a “credit” for the amount of the settlement and indemnity and contribution from Dr. Edwards and Dr. Holt. The jury found Sehering liable for plaintiff’s “loss of hearing” and awarded damages of $200,000. Sehering moved for a take-nothing judgment, arguing that the amount of the doctors’ settlement exceeded the award by the jury. Schering’s motion was denied. There was no finding of negligence against either Dr. Edwards or Dr. Holt.

Both Kanamycin and Garamycin belong to a class of drugs known as Aminoglyco-sides and are effective in combating gram-negative infections. Both are broad spectrum bacterial agents, and both are eliminated through the kidneys. Garamycin and Kanamycin are potentially ototoxic (affecting hearing and/or balance) and nephrotoxic (affecting the kidneys).

The jury found that Sehering failed to give an adequate warning to Dr. Edwards with respect to the use of Garamycin, and that such failure to warn was a producing cause of plaintiff’s total and permanent hearing loss. The jury also found that such failure to adequately warn was negligence and a proximate cause of plaintiff’s hearing loss. The jury further found that Sehering represented to Dr. Edwards that Garamycin would cause only temporary partial hearing loss; that such representation was false; that Dr. Edwards relied on the representation; and that Dr. Edward’s reliance was a producing cause of Walter K. Giesecke’s total and permanent hearing loss.

Sehering contends the judgment should be reversed and rendered in its favor because there is no evidence to support the jury's findings. In deciding Schering’s no evidence points, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

Schering had a duty to give an adequate warning if it knew or should have known of a potential harm to a user because of the nature of its product. Bristol-Myers Company v. Gonzales, 561 S.W.2d 801 (Tex.1978); Crocker v. Winthrop Laboratories, Division of Sterling Drug, Inc., 514 S.W.2d 429 (Tex.1974).

Doctors Gribble and Mathis testified that neither the 1971 bound volume of the Physicians’ Desk Reference, the 1971 supplement, nor an advertisement by Sehering in a medical journal warned of the possibility of permanent deafness. There is evidence that, prior to marketing Garamycin in 1971, Sehering had evidence that the ototoxicity caused by Garamycin could lead to permanent hearing loss. There is evidence that Sehering failed to adequately warn about the need for tests to monitor renal and eighth nerve function. There is evidence that Sehering failed to properly warn about the danger of using concurrently other neurotoxic drugs. Kanamycin, a potentially neurotoxic drug, was used as a “wash” at the time of the second surgery. There is evidence that the warning given by Sehering did not encompass a situation where the other neurotoxic was being used as a wash. There is evidence that Scher-ing’s warning on the “concurrent” use of diuretics and Garamycin was not violated because the diuretic, Lasix, was not given until after the Garamycin had been discontinued. There is medical testimony to support the producing cause and proximate cause findings. There is evidence that Schering represented to Dr. Edwards that Garamycin would cause only temporary partial hearing loss and that such representation was false. We hold there is some evidence to support the jury’s findings. Schering’s no evidence points are overruled.

Schering argues it is entitled to a take-nothing judgment after applying the $265,-000 credit paid in settlement by Doctors Holt and Edwards, since the amount paid exceeds the $200,000 in damages awarded by the jury. The settlement agreement was in evidence only as a “court exhibit.” Plaintiffs’ sustained objection prevented the settlement from being considered by the jury. Schering asserts this was error.

Plaintiffs urge that since their pleadings and evidence show that separate torts were committed by the alleged tortfeasors, which resulted in separate injuries, it was necessary for Schering, in order to receive a “credit” from the prior settlement, to obtain jury findings that Dr. Holt and Dr. Edwards were true joint tortfeasors whose negligence was a proximate cause of Mr. Giesecke’s total and permanent hearing loss. We disagree. We point out that we are concerned on this appeal with a “credit” and not a proportionate reduction. See Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex.1964). The language therefore, cited and relied on by plaintiffs from Leong v. Wright, 478 S.W.2d 839 (Tex.Civ.App.—Houston (14th Dist.) 1972, writ ref’d n. r. e.) is not controlling.

Plaintiffs sought a joint and several judgment against all defendants in their original petition. We agree with plaintiffs that the specific allegations should control over the general and that a fair reading of the original petition shows that some of the alleged injuries were distinct or divisible. Certain allegations of medical malpractice were made against the doctors resulting in injuries unrelated to Mr. Giesecke’s loss of hearing. Nevertheless, it is clear that plaintiffs alleged that Schering, Dr. Holt, and Dr. Edwards were each jointly and severally liable for Mr. Giesecke’s loss of hearing.

The rule is well established that a plaintiff is entitled to but one satisfaction for an injury. Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (Tex. Comm’n App.1935, opinion adopted); T. L. James & Co., Inc. v. Statham, 558 S.W.2d 865 (Tex.1977); Deal v. Madison, 576 S.W.2d 409 (Tex.Civ.App.—Dallas 1978, writ ref’d n. r. e.). Also, a non-settling tortfeasor is entitled to a credit for the amount paid the injured plaintiff in compensation of a claim for an injury, as distinguished from payments from collateral sources such as insurance, whether or not the party making the payment is liable to the injured person. McCrary v. Taylor, 579 S.W.2d 347 (Tex.Civ.App.—Eastland 1979, writ ref’d n. r. e.); Petco Corporation v. Plummer, 392 S.W.2d 163 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.); Skyline Cab Company v. Bradley, 325 S.W.2d 176 (Tex.Civ.App.—Houston 1959, writ ref’d); McMullen v. Coleman, 135 S.W.2d 776 (Tex.Civ.App.—Waco 1940, no writ); Hunt v. Ziegler, 271 S.W. 936 (Tex.Civ.App.—San Antonio 1925), affirmed, 280 S.W. 546 (Tex. Comm’n App.1926, judgment adopted); Restatement, Second, Torts § 885; Hodges, Contribution and Indemnity Among Tort-feasors, 26 Texas L.Rev. 171 (1947).

Schering should be entitled to a credit for any amount of the $265,000 settlement that was in payment for plaintiff’s loss of hearing. Schering should not be entitled to a credit for any payments made by the doctors for distinct or divisible injuries unrelated to the loss of hearing.

We hold that, under the peculiar facts of this case, an issue of fact existed, for determination by the jury, as to what amount, if any, was paid to plaintiffs by Dr. Holt and Dr. Edwards for Mr. Giesecke’s loss of hearing. The court erred in excluding the tendered evidence regarding the settlement agreement and the payment of $265,000. We hold that such error requires that the case be reversed and remanded for a new trial. Schering’s other points of error need not be discussed.

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


author: SHANNON, Justice.

text:
    Arthur Gaylon YOUNG, Appellant, v. Reed Bates YOUNG, Appellee.
    No. 13040.
    Court of Civil Appeals of Texas, Austin.
    Oct. 24, 1979.
    Rehearing Denied Nov. 14, 1979.
    Broadus A. Spivey, Spivey & Grigg, Austin, for appellant.
    John H. Akin, Pearce, Smith & Akin, Austin, for appellee.
   SHANNON, Justice.

This appeal concerns claimed error by the district court in striking appellant’s demand for jury trial filed fourteen days before trial date. Tex.R.Civ.P. 216 (1976).

Appellee, Reed Bates Young, filed suit for divorce against appellant Arthur Gaylon Young in the district court of Travis County. By her suit, appellee, among other things, sought to be named managing conservator of the couple’s infant son. Over appellant’s objection, trial was to the court. After trial, the court entered judgment favorable to appellee. We will affirm the judgment.

Appellant attacks the judgment by one point of error claiming that the district court erred in striking appellant’s jury demand.

In response to appellant’s request, the district court prepared and filed findings of fact and conclusions of law concerning the hearing on appellee’s motion to strike the jury demand. The district court found that appellee filed the petition for divorce on September 13, 1978. On November 27, 1978, the case was set for trial on the non-jury docket for February 20, 1979. On February 1, 1979, appellant gave notice of substitution of counsel whereby Broadus Spivey became attorney of record. Appellant filed a jury demand and paid the jury fee on February 6, 1979, which was fourteen days prior to the date set for non-jury trial. But for the demand for jury trial, the case would go to trial on February 20, 1979, because of its relatively high position on the docket. No jury would be available to hear the case on February 20, 1979. If the demand for jury were not stricken, an unreasonable delay of the trial would result. The jury demand was not made within a reasonable time before February 20, 1979.

The district court concluded that appellant’s demand for jury trial filed by appellant on February 6, 1979, was not timely made as required by Tex.R.Civ.P. 216.

The Travis County court administrator testified at the hearing that if the case were to be tried to a jury, the earliest firm setting would be in August, 1979. The parties agreed that appellee had been accepted to the University of Texas School of Medicine in Galveston for the term to commence early in the summer of 1979.

Rule 216 requires that the demand for jury be made and the fee paid “on or before appearance day or, if thereafter, a reasonable time before the date set for trial of the cause in the non-jury docket, but not less than ten days in advance.” (Emphasis added). A demand for jury made ten days in advance is not necessarily timely as a matter of law. Texas Oil & Gas Corporation v. Vela, 429 S.W.2d 866 (Tex.1968); Sylvester v. Griffin, 507 S.W.2d 649 (Tex.Civ.App.1974, no writ); Jackson v. Jackson, 524 S.W.2d 308 (Tex.Civ.App.1975, no writ). In the case at bar, no jury was available to hear the case on February 20, 1979. The next available jury setting was in August, 1979, some six months later. In view of those circumstances, the district court did not err in finding that the request for jury was not made a reasonable time in advance of the trial setting. Texas Oil & Gas Corporation v. Vela, supra.

The judgment is affirmed.


text:
    Lucille Haby McFARLAND, Individually and as Independent Executrix of the Estate of Kune Junde Haby, Deceased, et al., v. H. Howard HABY, Jr.
    No. 12991.
    Court of Civil Appeals of Texas, Austin.
    Oct. 24, 1979.
    Rehearing Denied Nov. 21, 1979.

      Charles R. Griggs, Nunn, Griggs & Steak-ley, Sweetwater, for appellants.
    Edward B. Winn, Lane, Savage, Counts & Winn, Dallas, for appellee.
   SHANNON, Justice.

Appellants invoked the jurisdiction of the district court of McCulloch County seeking a declaratory judgment that a contract not to make a will signed by the parties’ mother was void. Appellants claimed the contract was void primarily for the reason that it sought to change or avoid the law of descent and distribution. After trial to a jury, the district court entered judgment specifically enforcing the contract.

Emil Haby and Kune Junde Haby, husband and wife, had four children: Homer H. Haby, father of appellee H. Howard Haby, Jr.; Martha Haby Lewis; appellant Lucille Haby McFarland; and appellant Walter Haby. Mr. and Mrs. Haby owned and operated ranch land in McCulloch County, most of which was community property. Emil Haby died intestate in 1935.

After her husband’s death, Mrs. Kune Junde Haby continued operating the ranch as one unit, including not only her community and small separate interest, but also the undivided interests that were inherited by the children from their father.

In 1959, Homer Haby, a law school graduate, prepared a contract not to make a will, and submitted it to his mother for signature. The contract provides as follows:

“STATE OF TEXAS
COUNTY OF McCULLOCH
Know All Men By These Presents:
Whereas my children, Matha [sic ] Haby (Mrs. C. L.) Lewis, Lucille Haby (Mrs. C. A.) McFarland, Walter E. Haby, and Homer H. Haby, have in the past, now in the present and will in the future permit me to use all such of their realty situated in McCulloch County, Texas, which is joining and contiguous to the land I own;
Whereas I do not have any will at the present time;
Whereas, should any instrument dated before the date of this instrument appear, be presented or offered before any court of this state or any other state of the United States, such said instrument is hereby declared revoked, cancelled and invalid as such;
Be it known that I, Mrs. K. W. Haby, in and for the above set out consideration do hereby agree that I will not make a will but in its place and stead and to supplant such an instrument do hereby agree that my properties both real and personal are to pass to my above set out children or the heirs of their body or their legal heirs by consanguinity. To be equally distributed to the same, taking into consideration all prior advancements, loans and payments made to and for their benefit and enjoyment and in their place and stead.
It being further understood and agreed that all of my rightful and legal debts shall be paid in accordance with law and thereafter the aforesaid children shall take and receive the aforeset-out properties subject to the condition that they shall work out a division of the realty in such a manner that each individual’s part shall be made as nearly contiguous, specifically taking into consideration the realty coming from Lillie Wilhelm when it is definite that title thereto is settled according to her said will, and should any one of the above recipients, singularly or collectively, refuse to carry out the above conditions, the each so failing shall forfeit one section of land to be divided equally among those so conforming, the said section of land being that most contiguous to that land of those so conforming.
It being further understood and agreed that each recipient under this agreement shall have an equal non-participating interest in and to the usual one-eighth (⅛) royalty retained by the owners of realty when leased. However, it is specifically understood and agreed that each Recipient herein shall have the sole right to make oil and/or mineral leases on all land in his or her name and shall have the sole right to all such bonuses, overrides, and/or any other benefits arising therefrom to the exclusion of any of the other recipients or holders of interest in and to the usual ⅛ royalty interest.
Witness my hand this the 8th day of July A.D. 1959.
s/ Mrs. K. W. Haby”
(Kune Junde Haby)
Witnesses
s/ C. A. McFarland
s/ Minnie E. Haby

Martha Haby Lewis died testate in 1970.

Mrs. Haby, aged ninety-four, died testate in 1972. She left a will dated November 7, 1961; a codicil dated September 4, 1970; and a codicil dated February 4, 1971. The will and codicils pretermitted Homer Haby. By the terms of those instruments, appellants were bequeathed and devised all of Mrs. Haby’s property. The will and codicils were admitted to probate over Homer’s contest. After appealing the order of probate to district court, the contestant dismissed the appeal.

Thereafter, Homer Haby assigned to his son, appellee H. Howard Haby, Jr., his rights as an heir of Mrs. Haby and his interest in the contract not to make a will.

The district court’s judgment specifically enforced the contract not to make a will by imposing a constructive trust upon the estate of Mrs. Haby to the extent of an undivided one-third interest in such estate as if Homer had been an heir of Mrs. Haby, had she died intestate. The judgment further directed appellants to deliver to appel-lee a deed conveying to him an undivided one-third interest in all the real estate that they received from Mrs. Haby’s will and codicils. Appellee, in addition, obtained judgment for $40,000 representing one-third of the income of Mrs. Haby’s estate from date of her death to the date of judgment.

Appellants attack the judgment by fifteen points of error. Appellants’ most important challenge is that the contract not to make a will was void as being in contravention of the law of descent and distribution.

Contracts to make wills were recognized in the common law as early as 1682. Goilmere v. Battison, 1 Vern. 48, 23 Eng.Rep. 301 (1682); Sparks, Contracts to Make Wills 1 (1956). Likewise, such contracts have long been acknowledged and enforced in Texas. Jordan v. Abney, 97 Tex. 296, 78 S.W. 486 (1904).

Although there is no Texas authority, appellants acknowledge that courts in some states have recognized the right of a person to contract with another person not to make a will. Jones v. Abbott, 228 Ill. 34, 81 N.E. 791 (1907); Downey v. Guilfoile, 96 Conn. 383, 114 A. 73 (1921); Cleaves v. Kenney, 63 F.2d 682 (1st Cir., 1933); Foman v. Davis, 316 F.2d 254 (1st Cir., 1963); 32 A.L.R.2d 370 (1953). A contract not to make a will, necessarily, is an agreement for consideration to permit one’s property to descend by the laws of descent and distribution.

After close consideration of the out-of-state authorities, this Court joins in their recognition of the right of a person to contract for consideration with another person not to make a will, that is, a contract to permit property to descend by the laws of intestacy.

Appellants argue, nevertheless, that the contract prepared by Homer Haby for his mother’s signature goes beyond merely a contract to permit property to descend by the laws of intestacy. Appellants insist that Mrs. Haby in the contract attached conditions and provisos to her children’s taking and use of the property not provided for by the laws of descent and distribution.

Texas Prob.Code Ann. § 38 (1956) provides with respect to persons who take upon intestacy:

“(a) Intestate Leaving No Husband or Wife. Where any person, having title to any estate, real, personal or mixed, shall die intestate, leaving no husband or wife, it shall descend and pass in parcenary to his kindred, male and female, in the following course:
1. To his children and their descendants.

An analysis of the contract follows: Mrs. Haby states that she will not make a will but in place of a will she agrees to certain propositions:

(1) She agrees that all of her property, real and personal, is to pass to her four children or the heirs of their body or their legal heirs by consanguinity;

(2) The distribution to those heirs is to be equal, taking into consideration all prior advancements, loans and payments made to and for the benefit of the heirs;

(3) After Mrs. Haby’s debts are paid, the heirs will receive the property subject to the condition that they work out a partition of the realty in a particular manner;

(4) If the heirs are not willing to work out a partition of the property as directed by the contract, then each heir failing to so agree shall forfeit 640 acres of land to be divided among the heirs who do abide by the requirements of the contract;

(5) A one-eighth royalty to be produced from the realty shall remain undivided, but each heir will have an undivided interest in all the royalty in and under all of the realty. The executive rights, however, shall belong to each heir insofar as his own property is concerned.

The analysis demonstrates that the Haby contract goes beyond a simple agreement not to make a will and to abide by the laws of intestacy. Instead, Mrs. Haby agreed to do something that cannot be done: to die without making a will and at the same time direct that her estate pass to her children in a specified manner inconsistent with the laws of intestacy. Parties, by contract, cannot impair the validity of a law, nor control or limit the provisions of a statute. Williams v. Williams, 569 S.W.2d 867 (Tex.1978); Gorman v. Gause, 56 S.W.2d 855 (Tex. Comm’n App.1933, jdgmt. adopted). Accordingly, the Haby contract is void as an effort to pass property upon Mrs. Haby’s death in a way repugnant to the law of descent and distribution.

Appellee argues, however, that the illegal “provisions are not the essential features of the agreement and are clearly separable .” from the valid provisions. Ap-pellee claims that the illegal parts of the contract may be disregarded, thereby leaving a valid and enforceable contract by which Mrs. Haby agreed to die intestate in consideration for the use of the children’s land.

The intent of the parties, as evidenced by the language of the contract, governs its severability. See Patrizi v. McAninch, 153 Tex. 389, 269 S.W.2d 343 (1954). The issue as to severability is whether or not the parties would have entered into the agreement absent the illegal parts.

The contract contains one promise on the part of the children in exchange for one promise on the part of their mother. The consideration flowing to Mrs. Haby, the use of the children’s land, was legal, but the consideration flowing to the children from Mrs. Haby was not. The plan of the contract, as evidenced by Mrs. Haby’s promise, was that if she were permitted to use the children’s land, then her property would pass as specified by the contract. No element of the plan, particularly the express condition that the children take equal shares only if they acquiesced in the partition, may be removed without doing violence to the entire scheme. At the time of signing the contract, Mrs. Haby apparently gained the impression that by contract she could agree not to make a will, and at the same time control the disposition of her estate in many respects. Our view is that Mrs. Haby would not have signed the contract absent the provisions controlling the disposition of her estate. Selective enforcement of the contract, as argued for by appellee, would result in a new and different contract not intended by the parties.

Having concluded that the provision not to make a will and the subsequent void provisions are indivisible and inseparable, we apply the rule that should the consideration, or any part thereof, be unlawful, then the entire contract is void and unenforceable. Patrizi v. McAninch, supra; Edwards County v. Jennings, 89 Tex. 618, 35 S.W. 1053 (1896).

We reverse the judgment of the district court and here render judgment declaring the contract void and unenforceable.