author: MASSEY, Chief Justice.

text:
    Evelyn NEWLAND, Appellant, v. Leo L. NEWLAND, Appellee.
    No. 17654.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 17, 1975.
    Rehearing Denied Nov. 14, 1975.

      Leo Patrick Ferris, Fort Worth, for appellant.
    T. B. Coffield, Bowie, Cantey, Hanger, Gooch, Cravens & Munn, and S. G. Johndroe III, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Evelyn Newland sought divorce and partition of property by suit against her husband Leo L. Newland. Trial was before the court. Judgment was rendered granting the divorce and partitioning the property of the parties, plus other relief to the wife not involved on appeal.

Appeal therefrom has been taken by Mrs. Newland, complaining because of that part of the decision that certain real estate was not part of the parties’ community estate, but was the separate property of the husband. She also complains that in the event decision that such was separate property of the husband there was inadequate allowance for enhancement of the value thereof as from the parties’ community estate; and because the court found, contrary to clear evidence to the contrary, that the separate funds of the husband were not commingled with the community funds of the parties.

We affirm.

Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Vernon’s Texas Codes Annotated, Family Code, Sec. 5.02, “Presumption”. It is presumed that all property acquired during marriage is community property. Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226 (1947). The degree of proof required of a spouse seeking to establish the character of property as separate rather than community, i. e. to overcome the presumption of the law, is that he prove the separate character by “clear and convincing” evidence or by “clear and satisfactory” evidence. Van v. Webb, 147 Tex. 299, 215 S.W.2d 151 (1948); Wilson v. Wilson, supra. The requirement is satisfied in certain instances where he is able to trace the original separate property into the particular assets on hand at the time of dissolution of marriage where there has been a change in form, though he must both trace and clearly identify the property as his separate estate. Tarver v. Tarver, 394 S.W.2d 780 (Tex.Sup., 1965); McKinley v. McKinley, 496 S.W.2d 540 (Tex.Sup., 1973). In the absence of agreement to the contrary property purchased with separate funds, or taken in exchange for separate property, becomes the separate property of him whose money purchases or whose property is given in exchange. Dixon v. Sanderson, 72 Tex. 359, 10 S.W. 535 (1888).

Where the evidence shows that separate and community property have been so commingled as to defy resegregation and identification he who is obliged to meet the applicable requirement of proof of separate character of the property cannot discharge the burden of proof incumbent upon him by law and the statutory presumption that the property is of community character should prevail. McKinley v. McKinley, supra.

While most of Mr. Newland’s testimony was corroborated by bank records, etc., some was not so supported. Mrs. New-land contends that where there is not corroboration there is lacking the requirement of evidence that it be “clear and convincing”. She cites Duncan v. Duncan, 374 S.W.2d 800 (Eastland, Tex.Civ.App., 1964, no writ history) and West v. Austin National Bank, 427 S.W.2d 906 (San Antonio, Tex.Civ.App., 1968, writ ref., n. r. e.). We do not believe either case supports the contention. In a suit of this nature between a husband and wife the parties are each able to testify upon material agreements, express or implied, but rarely would any third persons be able to corroborate either. The same applies to action of one with no participation of the other. To adopt the rule for which Mrs. Newland contends would be to deny justice in a great number of cases, indeed in nearly all where the facts are within the knowledge of only one spouse. Of course the fact finder would be entitled to disbelieve and refuse to find for the spouse having knowledge and testifying, but in instances where he is believed and the finding made for him a judgment based thereupon should not be disturbed because of a lack of corroboration of his testimony.

The rule relative to “clear and convincing” evidence, etc. is a narrow one. In our blended system the rule is in practical effect but an admonition to the judge to exercise great caution in weighing the evidence. The ease is decided by the fact finder by a preponderance of the evidence. On a review of judgment by a trial court upon a motion for new trial filed the court should grant a new trial if in his opinion the evidence in support of the verdict does not meet the requirement that it be “clear and convincing”, etc. In such an instance the court could do no more; he should not render judgment contrary thereto. Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 209 (1950), in which opinion the court discussed the origin of the rule in courts of chancery where the matters of fact as well as of law were tried by the chancellor, with the operative effect thereof in our Texas practice. On appeal, if there was any evidence supporting the judgment of the trial court neither could the appellate court do more than reverse the judgment and remand the cause.

From the record it is obvious that the court sought to initially decide what was the separate property of either spouse and to consider it aside from that which was community property, with anticipation that it should be restored to its owner upon dissolution of marriage. That the court do so is in accord with the general rule. Fitts v. Fitts, 14 Tex. 443 (1855).

With the separate property ascertained the court proceeded to apportion to the community such appropriate amount as the husband’s separate property was enhanced in value by use of community funds as a charge thereon, and to divide the whole of the community property by “splitting it down the middle”, i. e. to apportion to each of the parties one-half (50%) thereof.

There is no complaint of the propriety of an even division of the community estate. The complaint is that property which should have been treated as part of the community estate was determined to be the separate property of the husband and therefore not similarly divided.

There were what might be termed “four parcels” of real estate which were found and decreed to be the separate property of the husband. As applied to each parcel Mrs. Newland insists that evidence was insufficient to meet the applicable legal requirements to establish its separate character. An extended discussion could be made. We deem it sufficient to say that we have examined and tested the evidence applicable to each parcel, placing the burden of proof upon Mr. Newland. In every instance do we find that he discharged his burden.

In minor aspects, and on several occasions as admitted by Mr. Newland in the record, there was complication because of the following: At and prior to his marriage Mr. Newland had a “general account” and a “special account” in the same bank. (There were actually other special kinds of accounts but for simplification we will consider and treat them as being only these two.) Following marriage he used the “general account” for the deposit expenditure of funds which belonged to the community, while he used the “special account” for the business transactions relative to the property constituting his separate estate. This was so both as applied to property on hand at time he married and/or exchanges thereof, etc., and for deposits and expenditures from funds inherited from his mother.

Mr. Newland admitted that occasions arose where one account would run low, so that it was necessary to draw funds from one to place in the other for short terms. When this occurred, according to his testimony, he would treat the transfer as a loan to be repaid and in each instance there was repayment so that the two accounts were restored to the condition which would have obtained had there not been necessity for any transfer. There was documentary evidence which supported testimony to such effect for most of the 20-year plus period involved. Anyway factual “resegregation” was proved.

Mr. Newland’s evidence was undoubtedly considered by the trial court and necessarily accorded complete credence. Likewise did the court accord credence to the use of funds belonging to the community to enhance the value of one or more of the “parcels” of land which were his separate property. The trial court treated the repayments to and reimbursements of the community account as repayments to and reimbursements to Mrs. Newland of her interest therein. The trial court likewise treated instances in which there were exchanges of separate property of the husband, with loans from third parties involved, in aid of which she signed notes along with her husband. In each instance it was proved that indebtedness was ultimately paid off from the separate estate of her husband.

We do not consider the above to have inhibited propriety of the trial court’s holding that all four land “parcels” constituted the separate property of the husband. Save for the presumptions at law, with application of the tests to be applied because thereof, there is not a distinction to be made from the analogous situation where two persons are partners in a business enterprise, while one of them is at the same time dealing in real estate as his private business apart therefrom, and where from time to time there is action resulting in indebtedness owing from the partners to the individual, or from the individual to the partners (or partnership account). In such a relationship there is no necessary confusion. The question at any important time is whether the accounts of the partnership and the individual have been settled so neither owes the other, or if not settled what amount is owed from the one to the other.

Where there is dissolution of a marital “partnership” and necessity arises to determine the partnership (community) entitlement on the one hand and the entitlement of the individual on the other hand the question to be resolved is the same. The only difference would be the considerations necessarily attendant to its resolution by reason of public policy as exemplified in the statutory and case law which would require that he who would establish his individual entitlement prove such by “clear and convincing” evidence.

Our discussion, hereinabove, would relate not only to real estate but to funds and personality. Upon funds there was evidence by Mr. Newland upon the rare instances of “commingling” or “resegregation” of funds in the accounts there had been transfers and payments so as to restore establishment of the community character of the one and the separate character of the other. Here there was not a commingling of a nature which would result in a forfeiture by the husband of his separate estate under the commingling doctrine for there was always ability to compute correct balances for purposes of resegregation. Farrow v. Farrow, 238 S.W.2d 255 (Austin, Tex.Civ.App., 1951, no writ history). See also 12 Tex.Jur.2d 250, “Community Property”, Sec. 24, “Bank deposits"; and 30 Tex. Jur.2d 136, “Husband and Wife”, Sec. 76, “Effect of commingling separate property with community property.”

On the matter of enhancement of the separate property of the husband by use of community funds, there must be consideration of the matter of burden of proof altered from that which is applicable to other aspects of trial below. Restitution law controls. Necessarily in any resolution of the entitlement of the community (and of Mrs. Newland, the wife) from the separate estate of the husband because of the enhancement thereof by funds belonging to the community, the burden of proof was on Mrs. Newland. It is she who asserts enhancement which must be proved both as to the fact and amount in order that the court might know whether to credit the community (and Mrs. Newland) and the amount to be credited in the judgment decree.

Necessarily presupposed in consideration of enhancement and amount of enhancement of value of a person’s property by use of funds of another is that the property belongs to the one upon whom there is demand that he make restitution. In the instant case, as already noticed, the trial court’s intention was to divide equally the community property of the parties. In the court’s Findings of Fact it was found that $2,100.00 in funds from community property had been expended in the enhancement of the husband’s separate real estate. The amount of enhancement was not stated. In the court’s Conclusions of Law there was statement that Mrs. New-land was entitled to-$3,764.20 “being one-half (V2) of enhancement in value of Respondent’s separate property, one-half (⅜) of Respondent’s overdraw, and one-half (½) of value of equipment and supplies

Our examination of the record reveals that Mrs. Newland’s proof fell far short of legal requirements relative to the fact of enhancement, and also relative to the amount thereof, at the appropriate time for its ascertainment. However, the court intended to and did grant an amount so labeled along with other amounts as part of the property awarded as her apportionment from the community estate. There is no complaint by the husband. The complaint of Mrs. Newland we hold to be without merit.

Furthermore, the court’s judgment was one which disposed of Mrs. Newland’s interest in the community estate. The partition thereof to be made was within the discretionary power of the court. An award of this character is one which should not be disturbed on appeal unless there is a showing of an abuse of discretion because the total apportionment of community property to one party is manifestly unjust. Jackson v. Jackson, 524 S.W.2d 308, 312 (Austin, Tex.Civ.App., 1975, writ history unknown); Womble v. Womble, 502 S.W.2d 886 (Fort Worth, Tex.Civ.App., 1973, no writ history); Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923). Mrs. Newland has not shown such abuse of discretion.

Each point of error has been considered. All are overruled.

Judgment is affirmed.


source: Caselaw Access Project

author: PRESLAR, Chief Justice.

license: Public Domain

text:
    EXXON CORPORATION et al., Appellants, v. The FIRST NATIONAL BANK OF MIDLAND, Midland, Texas, et al., Appellees.
    No. 6455.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 22, 1975.
    Rehearing Denied Nov. 12, 1975.

      Stubbeman, McRae, Sealy, Laughlin & Browder, William B. Browder, Jr., Midland, McGinnis, Lochridge & Kilgore, Robert C. McGinnis, Peter M. Lowry, Austin, Walter B. Morgan, Houston, John L. Hill, Atty. Gen. of Tex., David Kendall, First Asst. Atty. Gen., Linward Shivers, Austin H. Furse, J. Milton Richardson, Asst. Attys. Gen., Austin, for appellants.
    Bullock & Scott, Russell W. Neisig, Midland, for appellees.
   OPINION

PRESLAR, Chief Justice.

Appellees as plaintiffs brought this suit seeking to set aside a Railroad Commission Order pooling the minerals under land of which they were the surface owners under the Relinquishment Act. The State of Texas intervened, and all parties sought summary judgments. The trial Court denied the summary judgment of defendant Exxon, and of the intervenor, the State of Texas, and granted the summary judgment of the Plaintiffs-Appellees. We reverse the judgment of the trial Court and render judgment for the State of Texas and Exxon Corporation.

Questions on appeal involve the authority of individuals to represent the State, the validity of Railroad Commission Orders, and collateral attack on such Orders.

Appellees filed this suit in 1972 against the Exxon Corporation alleging that the Exxon Corporation had obtained an Order of the Railroad Commission of Texas dated August 3, 1967, purporting to establish a pool unit involving Relinquishment Act land of which plaintiffs were the owners of the soil. It was alleged that the Order was of no force or effect as to the State’s interest or as to the plaintiffs’ interest in the land involved because of lack of jurisdiction of the Railroad Commission. Appellees also sought to set aside an instrument dated November 2, 1971, by which the Commissioner of the General Land Office gave the State’s “consent and ratification” of an earlier 1967 voluntary pooling agreement involving this land. The State of Texas intervened and aligned itself with Appellant Exxon.

The Railroad Commission Order under attack is dated August 3, 1967, and the effect of the Order is to force pool 673.27 acres of land in the Gomez Gas Field of Pecos County, Texas. Included is a 307.17 acre tract in which the Appellees own the surface and are entitled to receive Vsth of ½6⅛ of the royalty, and it is Relinquishment Act or mineral classified land. Prior to the Railroad Commission Order, Exxon, as applicant for a forced pooling order, sought and obtained consent from the State of Texas to proceed with forced pooling pursuant to Article 6008c, Tex.Rev.Civ.Stat.Ann. The sufficiency of that consent is questioned by Appellees. Also, prior to the Order of the Railroad Commission, Exxon circulated a voluntary gas pooling agreement to all interest owners in the unit. This agreement constituted the offer to pool voluntarily, which under Article 6008c is a prerequisite to compulsory pooling. The agreement was executed by some but not all of the interest owners in the proposed unit. It was not executed by the Commissioner of the General Land Office. It was, however, ratified by him by the “consent and ratification” of November 2, 1971. The Commissioner of the General Land Office did, however, consent to the compulsory pooling as required by Article 6008c.

Pooling can either be effected by a voluntary consent or by forced pooling under Article 6008c. Both methods are involved here, but we will not discuss the voluntary agreement and its related consent and ratification instrument because we uphold the forced pooling order of the Railroad Commission.

The judgment of the trial Court is in error because the plaintiffs had no authority to represent the State of Texas. The relief sought by the Appellees as plaintiffs was a Court finding that the Railroad Commission Order was not binding upon or of any force and effect as to any interest of the State of Texas. The Court’s judgment held that the Order of the Railroad Commission was not “binding upon or of any force or effect as to the oil and gas rights of the State of Texas or surface rights appurtenant thereto.” The Attorney General had intervened and was representing the State in asserting that the Order was valid and binding upon the State of Texas. The judgment of the Court allows an agent to defy his principal in the control of the principal’s property. The effect of the judgment, for all practicable purposes, is to declare the Order of the Railroad Commission invalid or void. In Agey v. American Liberty Pipe Line Co., 141 Tex. 379, 172 S.W.2d 972 (1943), plaintiff sued on his own behalf and on behalf of the State to recover certain statutory penalties. In holding the plaintiff had no authority to assert any interest for the State, the Court said:

“The Attorney General is the chief law officer of the State, and it is incumbent upon him to institute in the proper courts proceedings to enforce or protect any right of the public that is violated. Section 22 of Article 4 of the State Constitution, Vernon’s Ann.St.; 5 Tex.Jur., p. 373, § 5. He has the right to investigate the facts and exercise his judgment and discretion regarding the filing of a suit. 5 Tex.Jur., p. 380, § 8.”

In Herndon v. Hayter, 28 S.W.2d 885 (Tex.Civ.App. — El Paso 1930, writ ref’d), a trespass to try title suit involving Relinquishment Act land, the plaintiff sued “individually and on behalf of and as agent of the State of Texas.” The Court said:

“(Plaintiff) was wholly without authority to represent the State of Texas in this litigation, Section 22, art. 4, Constitution; Gulf Production Co. v. Colquitt, (Tex.Civ.App.) 25 S.W.2d 989.
“The title to the minerals in the land is vested in the state. (Plaintiff) has no title thereto. Greene v. Robison, 117 Tex. 516, 8 S.W.2d 655; McDonald v. Dees, (Tex.Civ.App.) 15 S.W.2d 1075.
“Having no authority to sue in behalf of the state and no title of his own, it follows (Plaintiff) cannot recover the mineral interest. Gulf Production Co. v. Colquitt, supra.
“If the instrument of September 13, 1923, casts any cloud upon the title to the minerals, as to which we express no opinion, such cloud is upon the state’s title and the right of action for its removal is vested in the state and not in (Plaintiff).”

In the instant case, the Court erred in rendering judgment for Appellees and decreeing that the August 3, 1967, Order of the Railroad Commission is not binding upon or of any force or effect as to the oil and gas rights of the State of Texas.

Prior to the Railroad Commission hearing, Exxon submitted to the Commissioner of the General Land Office the voluntary agreement to pool which had been signed by some of the interest owners. The Commissioner responded by a letter saying:

“During the June 6, 1967, meeting of the School Land Board, the pooling application which you submitted in connection with the captioned unit was approved.
We are in the process of reviewing the instrument which you submitted and should be in a position to advise you further within the next few days.
In view of the circumstances connected with this particular unit, permission is hereby given to proceed under the provisions of Article 6008c insofar as the lands in which the State of Texas has an interest are concerned.”

This letter is the basis of the Appellees’ lawsuit in that they urged that it does not give the required permission of the General Land Office for the Railroad Commission to proceed, and without such authority, the Railroad Commission was without jurisdiction. The Court erred in sustaining such position, because, in the first place, it amounts to a collateral attack upon the Order of the Railroad Commission and the Court could not go behind the Order to even consider the letter; and secondly, considering the letter, it complies with the requirements of Article 6008c and gives the Railroad Commission authority to proceed.

Article 6008c provides that with the approval or consent of the Commissioner of the General Land Office first had and obtained, lands in which the State of Texas has an interest may be pooled under the Act. The above quoted letter met that requirement. Also, the Order of the Railroad Commission recited on its face that such permission had been granted. Appel-lees’ suit is a collateral attack on the Order of the Railroad Commission and cannot be maintained. The Order of the Railroad Commission was regular on its face and not subject to collateral attack. Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961 (1945); Magnolia Petroleum Co. v. Railroad Commission, 128 Tex. 189, 96 S.W.2d 273 (1936); Texas Steel Co. v. Fort Worth & D. C. Ry. Co., 120 Tex. 597, 40 S.W.2d 78 (1931). In the last cited case, the Court said:

“It is the settled law of this State that the Railroad Commission is a quasi-judicial body. (Citation omitted) Since the Railroad Commission is a quasi-judicial body, it follows that an order regular upon its face, made by the Commission, is not subject to collateral attack.”

There is yet another reason why Ap-pellees cannot attack the Railroad Commission Order. It was stipulated that the Ap-pellees were parties to the proceedings and were given notice of the hearing before the Railroad Commission which resulted in the Order complained of. The Order also recites that fact. They were parties to the hearing but made no appearance. They did not appeal the Order but waited five years to bring this suit. Article 6008c provides that any person or party at interest aggrieved by an Order of the Commission effecting pooling may appeal such Order within thirty days to the District Court of the County in which the land is located. Since this appeal provision is an exception to the general provisions of Article 6049c requiring suits involving the Railroad Commission to be brought in Travis County, it is held that the thirty day provision is jurisdictional with the Court in which the land is located. Railroad Commission v. Miller, 434 S.W.2d 670 (Tex.1968); Superior Oil Company v. Railroad Commission, 519 S.W.2d 479 (Tex.Civ.App. — El Paso 1975, writ refd n. r. e.). This suit was brought in the County where the land was located but not within the thirty-day period; the Court did not have jurisdiction to render the judgment which it rendered.

Article 5382c provides a procedure for the voluntary pooling of land in which the State has an interest. Appellees urged that the Commissioner of the General Land Office must comply with all of the provisions of that Article before his permission is good within the meaning of Article 6008c. This contention must be rejected. Article 5382c is a method for voluntary pooling of Relinquishment Act land or land in which the State owns an interest; Article 6008c is a method of compulsory pooling of land in which the State owns an interest. Article 6008c is complete in itself and it is not possible to read into it any intention of the Legislature that the Commissioner of the General Land Office would have to comply with 5382c in a proceeding under 6008c. In brief, if the requirements of Article 6008c are met, Relinquishment Act land may be pooled.

In view of our holding in the matter discussed, we deem it unnecessary to consider other points of error. The trial Court erred in granting Appellees’ motion for summary judgment, and it also erred in failing to grant motion for summary judgment of Exxon Corporation and the State of Texas.

The judgment is reversed and judgment is here rendered that Appellees take nothing.

OSBORN, J., not sitting.


author: O’QUINN, Justice.

text:
    PURE MILK AND ICE CREAM COMPANY, Appellant, v. S. P. TOMLINSON, Appellee.
    No. 12310.
    Court of Civil Appeals of Texas, Austin.
    Oct. 22, 1975.
    Rehearing Denied Nov. 12, 1975.
    John B. McNamara, McNamara, Smith & McNamara, Waco, for appellant.
    Aubrey Davee, Brady, for appellee.
   O’QUINN, Justice.

Pure Milk and Ice Cream Company brought this suit on sworn account against S. P. Tomlinson, doing business in Brady, Texas, as Hill Country Creamery, to recover an unpaid balance of $600 on the account and for attorney’s fees in the sum of $300. Pure Milk filed suit in McLennan County, its place of business, and the cause was transferred to McCulloch County on Tom-linson’s plea of privilege.

Tomlinson answered and brought a counterclaim for $700 claimed under an oral lease for hunting rights for the 1972 season on 900 acres of land Tomlinson held in McCulloch County.

The cause was tried before the county court without a jury. The trial court found that Pure Milk proved its account as just, correct, and due. The court also found that Tomlinson “having offered his evidence as to his counter claim or setoff,” and Pure Milk “had not controverted or denied the existence of this cutoff [sic], the Court is therefore of the opinion that the Plaintiff [Pure Milk] take nothing by reason of this suit.” Costs were assessed against Pure Milk.

Since Pure Milk was not required to controvert or deny the counterclaim and Tom-linson failed to discharge his burden to prove an existing lease with Pure Milk for the 1972 hunting season, we will reverse the judgment of the trial court and render judgment for Pure Milk.

In January of 1971 it appears that Tom-linson was indebted to Pure Milk for ice cream Pure Milk sold to him “at the price and of the value of $2,002.81.” By the early part of September of that year Tom-linson had reduced the account balance to $1,400, and the parties entered into an agreement, later confirmed in writing, by which the account would be further reduced by $700. The agreement on the part of Pure Milk was made by Fred Storm on a visit to Brady, and Storm later confirmed the agreement on behalf of Pure Milk in a letter from Waco to Tomlinson dated September 27, 1971, quoted in pertinent part:

“. . . I am sending this letter to verify and confirm that we are accepting your place as a hunting lease for one year beginning September 1, 1971 and ending September 1, 1972. We understand that this includes all hunting rights.
“As we have discussed, we will credit your account in the amount of $700 which is the total fee for the one year’s lease. This $700 will be applied toward your present balance of $1,400. If this is not satisfactory, give me a call.”

In his counterclaim Tomlinson pleaded that it arose because Pure Milk “or its agents leased [the] same [900 acres] again for the year 1972” at the same rental price of $700. If proved, the counterclaim would balance the account Tomlinson had with Pure Milk for earlier purchases of ice cream.

The circumstances of the alleged renewal of the hunting lease for the 1972 season was related by Tomlinson, in part by responses to request for admissions and again in testimony given by him at the trial. Tomlinson stated that late in December of 1971, on the final hunt of the season after Christmas, one of the hunters, whose name he did not know, said, “. . .we want to take this place next year, also.” Tomlinson said the renewal was to be for the same rental of $700. Tomlinson described the hunter as “this boy was a young fellow ... I think he worked in Austin, out of the Austin area.” Tomlinson testified, “There were three or four of them — maybe five” on the hunt who were present when the “young fellow” spoke about keeping the place for 1972. Tomlinson did not know the names of the other persons present.

Tomlinson testified that the “young fellow” was the one who asked for the key and brought some of the hunting groups during 1971 to the lease. Tomlinson also testified that either the “young fellow” or another person, one Tomlinson did not recall hunting deer the year before, “came out during the dove season” in 1972 with some fellows “. . .he came out hunting, after the dove season opened. And he was plant— He was the Plant Superintendent — Not superintendent, but he was — You know, he is no longer there, I don’t think. But, he was the man that did the operations inside the plant there.” It is not clear whether the dove hunter was the man “out of the Austin area” or another who handled “operations inside the plant there” in Waco.

There is no evidence in the record, and Tomlinson did not testify, that any person purporting to be from Pure Milk hunted on the Tomlinson tract during the 1972 deer and turkey season which extended from the middle of November, 1972, through the first weekend in January, 1973.

Tomlinson testified that “shortly after the first of the year,” apparently early in January of 1973, Fred Storm, the Pure Milk representative with whom the 1971 agreement was made, called Tomlinson “one day and asked me about this account.” Tomlin-son stated he suggested to Storm that “. . . we do like we do here in West Texas; we will just split it.”

Tomlinson testified that Storm replied, “Well, now, Tomlinson, they are going to file on you. * * * I will talk to the people.” “Now, who he meant,” Tomlinson testified, “I don’t know. I imagine the manager, Mr. Jensen, or some of the partners, or, whoever handles that part for him.”

In reply to Storm, it was Tomlinson’s testimony that he said, “Well I will tell you what I will do; I will go ahead and send you a hundred dollars to show you my faith, that I’ve got good faith in it.” Tomlinson added, “And I offered to split with him. So, I sent him the hundred dollars. And the next thing I heard, well, they had served a citation on me.”

The trial court appears to have based its judgment, that Pure Milk take nothing, on a theory of default growing out of Pure Milk’s failure to controvert or deny “the existence of this cutoff,” or Tomlinson’s counterclaim for the hunting lease rents for 1972. Appellee on appeal places emphasis on the failure of Pure Milk to plead or offer evidence in reply to the counterclaim.

Appellee argues, “Nowhere, either by pleading or evidence, does Appellant deny that ‘The young fellow[’] from Austin (apparently the manager of the austin [s/e] branch of Appellant), and who conducted the hunting parties, brought them dove hunting and got the keys lacked authority to enter into the hunting agreement with Appellee. Indeed no where does Appellant deny that he lacked any authority to enter into such hunting agreement. He was holding himself out as having such authority, and this is verified by his getting the key, bringing out hunting parties and apparently being in charge thereof, to all of which Appellant made no objections.”

It is settled that Pure Milk, as plaintiff below, was not required, under the facts of this case, to reply to Tomlinson’s counterclaim. McDonald states the rule in this language: “If the plaintiff, contesting the counterclaim, does not intend to urge any defensive theory which must be verified or any affirmative defense under Rule 94, he is not required to answer the defendant’s counterclaim. Rule 81 states that he may plead to the counterclaim, which clearly is permissive.” (Emphasis by author) 2 McDonald: Texas Civil Practice, sec. 8.02, p. 319 (1970 revision).

Having asserted the counterclaim, it was appellee’s burden to prove a hunting lease for the 1972 season with Pure Milk, under the terms of which Pure Milk would apply the lease rents to Tomlinson’s remaining balance of $700 on the ice cream account. The evidence offered was that a “young fellow” who hunted in 1971,. called for the keys, and apparently “brought the fellows” to hunt, but whose name was not known and whose connection with Pure Milk was indefinite, or unknown to Tomlin-son, said “we want to take this place next year” at the same price. Appellee argues that the “young fellow” held “himself out as having such authority.”

We find no evidence in the record that “this boy [who] was a young fellow . out of the Austin area” had actual authority to negotiate a second lease on the hunting acreage, or to agree on the amount of the rent, or to assure Tomlinson that the rents would be credited to Tomlinson’s ice cream account. Tomlinson, by his own admission, knew only that the “young fellow” worked out of the Austin area, not in Waco at the home office, and at the time of trial was no longer employed by Pure Milk. Since appellee offered no proof of actual authority, reliance must be on evidence, if any there was, that the “young fellow” acted under apparent or ostensible authority.

Pure Milk, the record shows, is a partnership composed of thirteen partners who reside in Houston, San Antonio, Dallas, Austin, Waco, and other cities of Texas. Tom-linson’s negotiations for the 1971 hunting lease were with Fred Storm, who went to Brady to talk to Tomlinson, and who later in a letter from the home office in Waco confirmed the oral lease and its terms and that the $700 in rents would be applied to the ice cream account. It was Storm who called Tomlinson from Waco early in January of 1973 to ask about the unpaid balance of $700 on the account. Tomlinson at that time sent $100 to Storm who credited it on the ice cream account. Later, when Pure Milk sued on the account, suit was brought for remaining balance of $600, plus attorney’s fees.

The settled law in cases of apparent authority of an agent is so clearly stated in Texas Jurisprudence that we set out the statement we find controlling in this case:

“In determining the extent of an agent’s apparent authority, the paramount question involved is not the extent of the authority actually given, but, instead, the extent of authority that a third person, dealing with such agent, may justifiably believe the agent to possess. In measuring the extent of such authority, it is not proper to consider either actions of the agent that are unknown to, and not ratified by, the principal, or powers that the agent pretends to possess. On the contrary, such authority must be determined solely by the principal’s acts and not those of the agent.” (Emphasis supplied) 2 Tex.Jur.2d, Agency, sec. 44, p. 485 (1959).

Tomlinson testified that he relied on the “young fellow” who asked for the keys and brought hunters to the lease in 1971 and believed he had a hunting lease with Pure Milk for the 1972 season. Tomlinson declined to lease to others who asked about hunting in 1972. Except for some dove hunters in September, there was no use made of the Tomlinson place for hunting in 1972. It is uncertain from Tomlinson’s testimony whether the “young fellow . out of the Austin area,” who even under appellee’s testimony was at most only an employee, was the one who went back in September to shoot doves, or another man who “did the operations inside the plant there” in Waco. In either case, Tomlinson did not connect Storm or any other official or partner with the trade for a second lease and did not identify any official or partner with whom he had business dealings as a member of the hunting party in September. Nor did Tomlinson claim that any person who hunted in 1971 under the Pure Milk lease returned to hunt deer in the 1972 season.

Pure Milk filed special exceptions directing the court’s attention to the failure of Tomlinson in his pleadings to identify the person purporting to act for Pure Milk in obtaining hunting rights for a second year and to allege by what authority the purported agent acted. The trial court overruled all special exceptions and later in the trial overruled objections by Pure Milk to the introduction of testimony pertaining to the purported renewal of the lease for 1972.

Tomlinson failed to show that the actions of the purported agent were known to Pure Milk, or that Pure Milk afterwards approved or ratified such powers as the agent pretended to possess. The authority of the agent may be determined only by the acts of Pure Milk and cannot be shown solely by the acts of the purported agent. Tomlinson made the lease contract for 1971 with Fred Storm, yet made no effort to confirm the 1972 purported extension by inquiry of Storm, or Floyd Jensen, Jr., Pure Milk’s manager in Waco, or any other person known to Tomlinson to be in authority at Pure Milk’s home office. Tomlinson relied entirely on an oral arrangement in the deer camp with “this boy ... a young fellow,” believed by Tomlinson to work out of the Austin area, at a time when the lease made with Storm had eight months more to run. It was Tomlinson’s burden, under the circumstances, to exercise reasonable diligence and common sense to ascertain whether the boy who called for the keys had authority to bind Pure Milk to additional hunting season at a price of $700.

The trial court found that Pure Milk proved its claim for $600 on open account; that Pure Milk was indebted to Tomlinson for a hunting lease in 1972 in the sum of $700; and that Tomlinson requested no relief and filed no counterclaim for “the $100 extra owed him” by Pure Milk. The court filed the conclusion “That only a take nothing judgment could be rendered in this cause for the reason that it is undisputed that the Defendant [Tomlinson] owed the Plaintiff [Pure Milk] $600.00, and it is undisputed that the Plaintiff owed Defendant $700.00 as a counter claim or setoff for hunting lease, and since neither set of facts are [sic] denied, the Court as a matter of law must consider what is not denied as admitted.” The judgment entered by the trial court comports to the findings of fact and conclusions of law.

The record shows that Pure Milk proved its claim for $600 on the open account, as found by the trial court. Pure Milk also made proof by competent evidence that Pure Milk was entitled to recover $300 as reasonable attorney’s fees. Pure Milk was not required to answer or deny Tomlinson’s counterclaim for $700 on the hunting lease for 1972, and failure to deny may not be taken as an admission that the debt was owing. Tomlinson failed to discharge his burden to show that the purported agent Tomlinson dealt with on the hunting lease for 1972 was an authorized agent of Pure Milk whose acts were binding on Pure Milk.

The judgment of the trial court is reversed. Judgment is rendered that Pure Milk and Ice Cream Company recover $600 on its open account together with $300 as reasonable attorney’s fees; further, that S. P. Tomlinson take nothing by his counterclaim; and all costs, in the trial court and on appeal, are assessed against S. P. Tom-linson.

Reversed and rendered.


author: McCLOUD, Chief Justice.

text:
    Joe Ed GLOVER, Appellant, v. Bill ELLISTON dba Elliston-Archer Funeral Home, Appellee.
    No. 4809.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 24, 1975.
    Rehearing Denied Nov. 14, 1975.

      Thomas F. Glover, Seymour, for appellant.
    D. J. Brookreson, II, Clyde S. Boose, Seymour, for appellee.
   McCLOUD, Chief Justice.

Bill Elliston, d/b/a Elliston-Archer Funeral Home, sued Joe Ed Glover, surviving husband of Evelyn Joyce Moore Glover, and Charles W. Reagan, Independent Executor of the Estate of Evelyn Joyce Moore Glover, deceased, on a sworn account for funeral expenses incurred in connection with the interment of Evelyn Joyce Moore Glover. Judgment was entered against Joe Ed Glover who has appealed. We affirm.

The jury found that the sum of $1,740 charged by Elliston for services rendered was reasonable and services were rendered and incurred upon the' credit of Joe Ed Glover. No objections were made to the Court’s charge.

The thrust of Glover’s argument is he is not financially responsible for the funeral expenses because the will of his deceased wife provided, “I direct that my Executor hereinafter named pay all my just debts including the expenses of my last sickness and burial as soon as convenient.” Glover was not a beneficiary under the will. He contends the funeral expenses are to be paid by the estate of his deceased wife.

Article 912a-20, Tex.Rev.Civ.Stats., provides:

“The right to control the disposition of the body of a deceased person, unless other directions shall have been made therefor by the deceased, shall be vested in, and the duty of interment (and the liability for the reasonable cost of the interment) of such deceased person shall devolve upon, his or her surviving wife or husband, or if there be no surviving wife or husband they shall vest in and devolve upon the surviving child or children of deceased, or if there be no surviving husband or wife or child of deceased, they shall vest in and devolve upon the surviving parent or parents of such deceased, or if there be no surviving husband, or wife or child or parent of such deceased, they shall vest in and devolve upon the person or persons respectively in the next degrees of kindred in the order named by the laws of Texas as entitled to succeed to the estate of said deceased.” (Emphasis added).

Under Article 912a-20 the duty of interment and the liability for the reasonable cost devolved upon Joe Ed Glover. The phrase, “unless other directions shall have been made therefor by the deceased”, refers to the right to control the disposition of the body of a deceased person, and such phrase does not permit a deceased person to alter the statutorily imposed liability for the reasonable cost of interment.

Texas Probate Code Ann. § 320 (1956), provides:

“(a) Estates of Decedents. Executors and administrators, when they have funds in their hands belonging to the estate, shall pay in the following order:
(1) Funeral expenses and expenses of last sickness, in an amount not to exceed One Thousand Dollars, if the claims therefor have been presented within sixty days from the original grant of letters testamentary or administration, but if not presented within such time, their payment shall be postponed until the allowances made to the widow and children, or to either, are paid.”

Clearly the estate of a deceased person can be liable under certain circumstances for funeral expenses. This does not mean, however, that the person furnishing such services must look only to the estate for payment. Article 912a-20 creates liability on the part of certain persons for reasonable funeral expenses even though the estate might also be liable. Johnson v. Weed, 52 S.W.2d 917 (Tex.Civ.App. — Austin 1932, no writ); and Goldberg v. Zellner, 235 S.W. 870 (Tex.Com.App.1921).

Article 912a-20 provides that the surviving husband is liable for the reasonable cost of interment. The jury found the funeral expenses were reasonable. Elliston’s testimony supports the finding.

We have considered all points of error and all are overruled. The judgment of the trial court is affirmed.


author: BREWSTER, Justice.

text:
    Samuel H. DOWNE et ux., Appellants, v. W. A. ASKEY, Appellee.
    No. 17655.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 24, 1975.

      Stockard & Stockard, and Gerald E. Stockard, Denton, for appellants.
    Sewell & Forbis, and James E. Forbis, Decatur, for appellee.
   OPINION

BREWSTER, Justice.

This suit for a declaratory judgment was brought by the plaintiffs, Samuel H. Downe and wife, against W. A. Askey, defendant, asking the court to construe the provisions of a promissory note that plaintiffs had executed, payable to the defendant, and to declare that the prepayment provisions of the note gave the plaintiffs the right after April 23, 1973, if they wished to do so, to divide the outstanding principal balance of the note as of January 1, 1973 ($40,810.00), into three equal payments and to pay one-third thereof, plus accrued interest, on April 23, 1973, one-third thereof, plus accrued interest, on April 23, 1974, and the remaining one-third thereof, plus accrued interest, on April 23, 1975.

The note was given as part payment for land. It was dated April 23, 1969, and was originally for $58,300.00. The note provided for six per cent interest which was payable annually, and provided that the principal of the note is payable in ten equal annual installments of $5,830.00 each, starting April 23, 1970.

The note had the following prepayment provision in it:

“This note further providing that on or after January 1st, 1973, the outstanding principal on this note may then be prepaid without penalty providing that not more than one-third (V3rd) of the unpaid principal balance shall be paid in any one year.”

A non-jury trial was had, following which the trial court filed findings of fact and conclusions of law. That court found: defendant had left the note at the First National Bank of Decatur for collection; the outstanding unpaid principal of the note as of April 23, 1973, was $40,810.00; on April 23, 1973, the plaintiffs paid on the note the accrued interest plus $13,603.33 on the principal (this sum amounted to one-third of the then outstanding principal balance); defendant told the Bank not to accept a principal payment on April 23,1974, in excess of one-third of the then outstanding principal balance on the note; the balance of principal owing on the note as of April 23, 1974, was $27,206.67; on April 23,1974, the plaintiffs paid the Bank $15,235.69 to apply on the note, representing $1,632.36 for the accrued interest and a principal payment of $13,603.33; one-third of the principal balance ($27,206.67) unpaid on the note as of April 23, 1974, would only be $9,068.89, so defendant promptly sent back to plaintiffs a cashier’s check for the $4,534.44 that plaintiffs paid on the principal in excess of the $9,068.89.

In the trial court’s conclusions of law he concluded that the meaning of the provisions in the note relating to prepayment privileges is that no principal besides the annual payment could be paid on the note before January 1, 1973, and that after that date prepayment of principal is permitted if not more than one-third of the then outstanding principal balance is paid in any one year. The court also concluded that when this construction was applied to the facts of this case the plaintiffs on April 23, 1974, had tendered to the Bank as payment on the principal $4,534.44 more than it had a legal right to then pay on the principal of the note.

Based on these findings and conclusions the court then rendered the judgment against the plaintiffs that is being appealed from.

The plaintiffs’ first point of error is that the trial court erred in holding that a fair construction of the note denied plaintiffs the right to pay $13,603.33 on the principal of the note on April 23, 1974.

We overrule that point.

The following is from the opinion in Citizens Nat. Bank v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003, at page 1006 (1941):

“Before proceeding further we deem it appropriate to state certain well-established rules of law, which we consider germane to the decision of this case:
“(1) Rules of construction as applied to contracts are for the purpose of enabling the court to ascertain from the contract itself, that is the language used, the manner and extent to which the parties intended to be bound. Courts do not resort to arbitrary rules of construction where the intention of the parties is clearly expressed in unambiguous language. Magnolia Petroleum Co. v. Connellee, Tex.Com.App., 11 S.W.2d 158.
“(2) The cardinal rule of construction as applied to all contracts is to ascertain the intention of the parties as expressed in the language used in the instrument itself. In this connection, it is the intention and purpose of the contracting parties, as disclosed by the instrument, which should control. 10 Tex.Jur., p. 272, § 159.
“(3) A contract must be construed in accordance with its language. Its terms, when free from ambiguity and not in conflict with law, establish the rights of the parties. 10 Tex.Jur., p. 279, § 163.
“(4) It is the duty of the court, in determining the meaning and intent of a contract, to look to the entire instrument; that is, the contract must be examined from its four corners. . . . ”

The meaning of an unambiguous contract is a law question to be determined by the court from the language used therein. Tower Contracting Company v. Flores, 157 Tex. 297, 302 S.W.2d 396 (1957) and 13 Tex.Jur.2d 263, Contracts, Sec. 110.

We are governed by the rules referred to in deciding this case.

The language in the note involved is clear and free of ambiguity. The words used have a definite legal meaning. It is the duty of the courts under those circumstances to enforce the contract as written. 13 Tex.Jur.2d 290-292, Contracts, Sec. 123.

We disagree with the plaintiffs’ contention that a proper construction of the note involved gives them the right to pay the principal of the note off by making three $13,603.33 payments, one on April 23, 1973, one on April 23, 1974, and the other on April 23, 1975.

The trial court correctly construed the prepayment provisions of the note. On April 23, 1974, when plaintiffs chose to make the $13,603.33 principal payment in question, the most the note gave them the right to pay was one-third of the then outstanding balance of the principal of the note. The unpaid principal balance at that date was $27,206.67, so plaintiffs only had the right to prepay $9,068.89 on the principal at that time.

During each year following 1974 the note gives the plaintiffs the right to pay as much as one-third of the then unpaid balance of the principal on the note. In those years following 1974 when one-third of the unpaid balance of the principal of the note would not equal the $5,830.00 annual payments provided for in the note, the plaintiffs will in those years only have the right to pay on the principal the regular $5,830.00 annual payments that are in the note provided for.

The plaintiffs’ second point of error is that the trial court erred in refusing a declaratory judgment construing the note to permit plaintiffs to pay at least $13,-603.33 on the principal of the note in any calendar year after January 1, 1973.

We overrule the point.

For the reasons heretofore stated we hold that plaintiffs were not entitled to a declaratory judgment construing the note in the manner suggested by plaintiffs.

The judgment rendered by the trial court provided that the plaintiffs take nothing by their suit. Its effect was thus to deny to plaintiffs the particular construction that they asked be given to the provisions of the note.

In addition to the judgment, the trial court did file findings of fact and conclusions of law. In the conclusions of law the court stated that a proper construction of the note was: (1) prepayment of principal was excluded prior to January 1, 1973; (2) after January 1, 1973, the makers of the note can prepay principal if not more than one-third of the outstanding principal balance is paid in any one year. The court further concluded that when plaintiffs attempted to pay $13,603.33 on the principal of the note on April 23, 1974, that they were attempting to pay $4,534.44 more than the provisions of the note authorized them to pay on the principal at that time, because on that date the unpaid principal of the note was $27,206.67. The court’s holding was thus that plaintiffs were entitled to pay on April 23, 1974, one-third of the outstanding balance of unpaid principal as of that date, same being $9,068.89. It would necessarily follow that on any succeeding year there could only be legally paid one-third of the principal of the note that was unpaid as of that date, until such time that one-third of the principal of the note became equal to or less than the amount of the annual payments provided for in the note. When that occurred the makers of the note would not be entitled to pay more on the principal of the note than the $5,830.00 annual principal payments that are therein provided for.

We are convinced that it would have been better practice if the trial court had drawn the judgment in the form of a declaratory judgment undertaking to declare the rights of the parties with reference to prepayment of the principal of the note. The parties would then have had the judgment as a guide to go by in determining their rights.

We have found no Texas case dealing with the question of how the parties are affected when the trial court renders a take nothing judgment in a suit where the relief sought is declaratory relief. We have, however, found out of state cases on the subject.

The law appears to be that since no technical form is prescribed for the declaration of rights in a declaratory judgment action, the form of a judgment rendered in such an action is sufficient if the rights of the parties that are sought in the suit to be ascertained can be ascertained from the judgment rendered when considered in view of the controversy involved along with the findings of fact and conclusions of law filed in the case by the trial court. Burgard v. Mascoutah Lumber Company, 6 Ill.App.2d 210, 127 N.E.2d 464 (1955); R. G. Hamilton Corporation v. Corum, 218 Cal. 92, 21 P.2d 413 (1933); and Boyar v. Krech, 10 Cal.2d 207, 73 P.2d 1218 (1937).

When that law is applied to the facts of this case, it is apparent that the trial court did not fail to declare the rights of the parties.

The decree rendered by the trial court in this case, when considered in view of the controversy involved, along with the trial court’s findings of fact and conclusions of law, fully declare the rights of the parties on the issues involved.

We deem the judgment rendered by the trial court when considered in the light of the controversy involved and along with the trial court’s findings of fact and conclusions of law to declare that the makers of the note do not have the right, as contended for by plaintiffs, to pay the principal of the note off by making a $13,603.33 payment, plus interest, on April 23, 1973; another $13,603.33 payment, plus interest, on April 23, 1974; and a third $13,603.33 payment, plus interest, on April 23, 1975; that the prepayment provision of the note is to the effect that before January 1, 1973, no principal payments can be made on the note other than the $5,830.00 annual payments therein provided for; after January 1, 1973, the makers of the note can prepay the principal of the note, without penalty, except that they cannot pay more on the principal of the note in any one year than one-third of the then outstanding principal balance.

The judgment is affirmed.


author: KLINGEMAN, Justice. CADENA, Justice

text:
    Earl J. WENTWORTH, Appellant, v. Albert MEDELLIN et ux., Appellees.
    No. 15446.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 29, 1975.

      Jeffrey Wentworth, San Antonio, for appellant.
    Marvin Miller, San Antonio, for appellees.
   KLINGEMAN, Justice.

Defendant, Earl J. Wentworth, appeals from a declaratory judgment that an execu-tory contract of sale between plaintiff, Albert Medellin and wife, Rosie S. Medellin, dated November 5, 1971, is in full force and effect, ordering defendant to accept all payments of principal and interest due under said contract in accordance with its terms and provisions, and declaring that said contract is in force and effect because defendant did not follow the provisions of Article 1301b, Tex.Rev.Civ.Stat.Ann. (Supp. 1975), in attempting to cancel said contract.

Defendant contends that the trial court erred in granting plaintiffs’ petition for declaratory judgment based on the applicability of Article 1301b, supra, to the facts in this case.

The applicable part of Article 1301b, supra, provides:

“Section 1. A forfeiture of the interest and the acceleration of the indebtedness of a purchaser in default under an executory contract for conveyance of real property used or to be used as the purchaser’s residence may be enforced only after notice of seller’s intentions to enforce the forfeiture and acceleration has been given to the purchaser and only after the expiration of the periods provided below: .
(b) When the purchaser has paid 10% but less than 20% of the purchase price, 30 days from the date notice is given.
(d) Notice must be by mail or other writing. If by mail, it must be registered or certified and shall be considered given at the time mailed to his residence or place of business, and notification by other writing shall be considered given at the time delivered to the purchaser at his residence or place of business.
(e) Such notice shall be conspicuously set out; shall be printed in 10 point bold face type or upper case typewritten letter; and shall include the following:
NOTICE
YOU ARE LATE IN MAKING YOUR PAYMENT UNDER THE CONTRACT TO BUY YOUR HOME. UNLESS YOU MAKE THE PAYMENT BY (date) THE SELLER HAS THE RIGHT TO TAKE POSSESSION OF YOUR HOME AND TO KEEP ALL PAYMENTS YOU HAVE MADE TO DATE.
Sec. 2. A purchaser in default under an executory contract for the conveyance of real property used or to be used as the purchaser’s residence, may at any time prior to expiration of the period provided for in Section 1, avoid the forfeiture of his interest and the acceleration of his indebtedness by complying with the terms of the contract up to the date of compliance notwithstanding any agreement to the contrary.”

The basic question before us is whether the trial court erred in its application of Article 1301b, supra, to the contract in question. Defendant’s appeal is founded upon three basic premises: (1) the property involved in the executory contract is not the home of the buyer but is unimproved real estate, and the statute is not applicable; (2) the statute, by its terms, is restricted to cases involving a forfeiture of interest and acceleration of indebtedness of a purchaser in default, and this case does not involve a forfeiture and acceleration of the indebtedness, but rather a rescission of the contract; and (3) if the statute is applicable, there has been substantial compliance with the terms and provisions of the statute.

The record discloses that, on November 5, 1971, plaintiffs and defendant entered into an executory contract for the sale and purchase of certain unimproved real estate in Bexar County with the agreed purchase price of $3,000.00 to be paid in monthly payments. Plaintiffs, at such time and continuously thereafter, have lived in a residence in San Antonio, Texas, rented from plaintiffs’ parents. According to the contract, if the monthly payments are more than 30 days delinquent, defendant has the option to accelerate payments and declare the entire purchase price due, or to rescind the contract and take possession of the property. Plaintiffs, on a number of occasions, have been in arrears in payment of monthly payments, and, on several occasions, defendant has sent them notices of such delinquency. On September 18, 1973, defendant mailed plaintiffs a letter stating that they were several months delinquent in their payments and notified them of his intention to cancel the contract if plaintiffs were not current in 30 days. This letter was neither registered or certified but it is undisputed that plaintiffs received such letter. On October 29, 1973, more than 30 days after the letter above, defendant mailed a certified letter to plaintiffs, which was received by them, stating that, since the required delinquent payments had not been made, the contract was cancelled and revoked. At the time of such rescission, a little more than 10% but less than 20% of the purchase price had been paid by plaintiffs to defendant. On January 15, 1974, plaintiffs attempted to pay $211.14 on the delinquent monthly payments, but defendant refused to accept such payment or any payments thereafter. On February 14, 1974, defendant, by check, mailed to plaintiffs’ attorney, returned all payments made under such contract. Plaintiffs testified that they planned to build a home on the land when Mr. Medellin retired. There is nothing in the record to show when Mr. Medellin planned to retire. This suit was filed by plaintiffs on September 25, 1974.

In support of his contention that the statute does not apply to unimproved property, defendant argues that a reading of the entire statute, particularly the notice provision therein, shows that it was the legislature’s intent to cover only real estate on which there was a presently existing residence or one in the process of construction; that the legislature would not have used the word “home” in the prescribed notice in the statute if it was their intention to cover unimproved property; that a logical and proper construction of the term “real estate used or to be used as a purchaser’s residence” can only refer to real estate on which there is a residence which the purchaser is either using or intends to use in the future as his residence. Plaintiffs, on the other hand, argue that it covers any property which the purchaser has an intention to use as a residence, present or future, irrespective of whether there is any residence on it or not.

This is not a case where the seller sought an acceleration of indebtedness. The exec-utory contract here involved gave the seller two options after default: (a) to declare the entire purchase price due and payable, or (b) rescind the contract and take possession of the property. Defendant here elected to rescind the contract and take possession of the property. In a recent case, Marshall v. Garcia, 514 S.W.2d 513 (Tex.Civ.App. — Corpus Christi 1974, writ ref’d n. r. e.), the court said: “Article 1301b by its express terms limits its application to forfeiture and acceleration of indebtedness. The' statute neither expressly nor by implication purports to cover actions for cancellation and rescission of executory contracts for the sale of property.”

It is apparent that the trial court not only believed that Article 1301b, supra, was applicable to the facts of this case, but that also there must be strict compliance with all the terms and provisions of such statute. It cannot be argued that there has been exact compliance with all its terms and provisions. The statute provides that all letters must be either registered or certified. It is undisputed that the defendant’s letter of September 18, 1973, was neither registered or certified, but it is also undisputed that such letter was received by plaintiffs. The statute provides that all notices must be in a prescribed form, in certain designated print, or typewritten case. The letters here involved were ordinary typewritten letters, but it is clear from the record that plaintiffs were in no way misled by the letters and, in actuality, the record discloses that plaintiffs, after receipt of the September 18th letter, talked with defendant about bringing the delinquent payments up to date. The exact verbiage of the notice is not used in defendant’s letter and nowhere in defendant’s letter is the term “home” used. However, in our opinion, there has been substantial compliance with the terms and provisions of the statute. Plaintiffs were given 30 days notice, as provided by the statute, to make up the delinquent payments; the letters involved were received by plaintiffs and the letter of notice of intention to cancel the contract contains all the provisions necessary to put plaintiffs on notice that, if the delinquent payments were not made up within 30 days, defendant would cancel the contract. “Substantial compliance” means compliance with the essential requirements, whether of a contract or of a statute. See Jennings v. Willer, 32 S.W. 24 (Tex.Civ.App.1895), motion for rehearing overruled, 32 S.W. 375 (Tex.Civ.App. — 1895); Fitzgibbons v. Galveston Electric Company, 136 S.W. 1186 (Tex.Civ.App.1911, no writ).

In our opinion, the trial court improperly applied Article 1301b, supra, to the facts of this case. The trial court erred in granting plaintiffs the declaratory judgment here involved. The judgment is reversed and judgment here rendered that plaintiffs take nothing by their suit.

CADENA, Justice

(concurring).

I concur in the result solely on the ground that this case does not involve an “acceleration,” and that, therefore, Article 1301b, Tex.Rev.Civ.Stat.Ann. (Supp.1975), is inapplicable. I am unwilling to accept the conclusion that, assuming the statute to be applicable, defendant’s actions constitute compliance, “substantial” or otherwise, with the statutory requirements.

      . The contract here involved covers a lot in the Von Ormy Heights Subdivision in Bexar County, Texas, and provides for a purchase price of $3,000.00, payable by plaintiffs to defendant in deferred monthly payments. Such contract provides that, if the payments are not made when due or are more than 30 days delinquent, seller may, at his option, declare the entire purchase price due and payable, or may rescind such contract and take possession of the property and, in the event of a rescission, all payments made by the buyer shall be considered as rent for the property. It provides that, when the purchase price is fully paid, seller is to deliver a general warranty deed to the buyer.

      . “YOU ARE LATE IN MAKING YOUR PAYMENT UNDER THE CONTRACT TO BUY YOUR HOME. UNLESS YOU MAKE THE PAYMENT BY (date) THE SELLER HAS THE RIGHT TO TAKE POSSESSION OF YOUR HOME AND TO KEEP ALL PAYMENTS YOU HAVE MADE TO DATE.” (emphasis ours)


author: HENRY I. EAGER, Special Commissioner. PER CURIAM:

text:
    MESKER BROTHERS INDUSTRIES, INC., Appellant, v. George C. LEACHMAN, Collector of Revenue, and Frank J. Antonio, Assessor, St. Louis County, Missouri, Respondents. MESKER INDUSTRIES, INC., Appellant, v. George C. LEACHMAN, Collector of Revenue, and Frank J. Antonio, Assessor, St. Louis County, Missouri, Respondents.
    Nos. 58886, 58887.
    Supreme Court of Missouri, Division No. 2.
    Nov. 10, 1975.
    Donald S. Hilliary, Clayton, for appellant.
    George W. Lang, II, Asst. County Counselor, Clayton, for respondents.
   HENRY I. EAGER, Special Commissioner.

This appeal involves the liability of a manufacturer in St. Louis County for manufacturers’ taxes (Chapter 150, RSMo 1969) on “work in process.” The specific section involved is § 150.310, which provides in pertinent part as follows: “ * ⅜ * 1. Every manufacturer in this state shall be licensed and taxed on all raw material and finished products, as well as all the tools, machinery and appliances used by them, in the same manner as provided by law for the taxing and licensing of merchants; * *.” The present appeal includes two cases which were consolidated here; they involve the same plaintiff and the same issues but for taxes of different years (1972 and 1973). All the substantive facts were stipulated, and the cases were tried together in the Circuit Court. Plaintiff (whose name was slightly changed between the filing of the two suits) is a manufacturer of steel doors and frames and is required to be licensed as a manufacturer under Section 150.310. The forms for the required return included a space for “work in process,” and the accompanying explanation required that item to include labor, factory overhead and “burden.” In 1971 plaintiff filed its return for the 1972 tax which included amounts for raw materials, work in process and finished products; it received a statement for a total license tax of $23,662.67, of which $6,119.99 represented work in process. Plaintiff did not appeal the assessment to the Board of Equalization, but its President and Counsel appeared before the Board on December 30, 1971, prior to payment, and discussed the item of work in process, claiming that it was improperly included; they were told (by Mr. Zafft, a member of the Board) that the Board would not remove the item but would only determine whether the value allocated to it was “lawful and fair.” On December 31,1971, plaintiff paid the full tax, but by two checks (one for the $6,119.99) accompanied by a letter in which it “amended” its return by removing the item of work in process, and stated that the tax therefor was paid under protest because that item of property was not taxable under the terms of § 150.310. The letter also stated that plaintiff had been advised that if the tax was not paid in full at that time, a license would not be issued for 1972 and the nonpayment would be certified to the Prosecuting Attorney for appropriate action; also, that the payment was thus being made involuntarily. The work in process was not returned or taxed as personal property, but only as a part of the manufacturers’ tax. The valuations and rates would have been the same under either classification. It is true that if a manufacturer fails to pay his tax in full, no license will be issued, and that the Department of Revenue of the county will certify the nonpayment to the Prosecuting Attorney. On March 21, 1972, plaintiff filed the first of the present suits under Section 139.-031 (the “protest statute”) seeking recovery of the amount paid under protest and an injunction against collection.

For 1973 plaintiff failed to file a return and its work in process was assessed at $111,320. That valuation is not contested; the “work in process” was not returned or assessed as personal property. Plaintiff did not appeal that assessment to the Board of Equalization. It again paid the controverted sum ($8,474.75) under protest with a protest letter as described above for the 1972 tax. On March 26,1973, plaintiff filed suit under Section 139.031 for the recovery of the controverted sum paid for 1973 and for an injunction against collection.

The two eases were tried together before the Court and judgments entered for the defendants, without opinion. The parties stipulated to what the testimony of a certified public accountant would have been if offered by plaintiff and admitted. It was, in substance: that “work in process” and finished goods are distinctly different and mutually exclusive entities; that work in process is raw material which has been altered after energy has been spent upon it so that it is no longer identifiable in its original form; that inventory in manufacturing includes three separate and distinct classes of personal property, i. e., finished goods, work in process, and raw materials. Objections were preserved to the stipulated testimony, — that it would constitute an invasion of the province of the court, that it was irrelevant and incompetent as a legal construction of the statute, that the legislative intent could not be supplied by parole evidence, and for other reasons.

Before reaching the merits we are met with respondents’ contention that the judgment here should be for defendants because plaintiff failed to avail itself of the statutory administrative procedure by appealing to the Board of Equalization, and if necessary, to the State Tax Commission; this, they say, constituted an adequate remedy at law. The plaintiff proceeded in each case under § 139.031(1), which is as follows: “Any taxpayer may protest all or any part of any taxes assessed against him, except taxes collected by the director of revenue of Missouri. Any such taxpayer desiring to pay any taxes under protest shall, at the time of paying such taxes, file with the collector a written statement setting forth the grounds on which his protest is based, and shall further cite any law, statute, or facts on which he relies in protesting the whole or any part of such taxes.” This section appears in the general Chapter on “Payment and Collection of Current Taxes.” It is conceded that plaintiff complied therewith and also with subsection (2) requiring the filing of suit within 90 days. This statute was enacted in 1969, certainly for some purpose; one purpose obviously was to relieve the taxpayer of the payment of interest and penalties, but the statute may also be used to avoid sanctions which might otherwise be applied, such as here, the refusal to renew plaintiff’s license. The statute is broad in form and its title includes, “ ⅜ * * procedures for the recovery of taxes erroneously or illegally collected” (Laws 1969, p. 249); it is applicable in all counties in the state, and it contains no special limitations. The action required is not necessarily an action in equity, but it would seem to include some features thereof, and plaintiff here states some equitable grounds for relief. We may consider the adequacy of another remedy or remedies. The only one suggested is that of an appeal to the Board of Equalization. Those provisions appear in Chapter 138, and are applicable statewide. The function of these Boards is to adjust the valuations of the assessor by raising or lowering them, to give notice thereof, and to hear appeals from such valuations. This power is expressly extended to a review of Merchants’ and Manufacturers’ taxes in first class counties by § 138.120. It is not stated in these statutes that the remedy by appeal to the Board is exclusive of all other remedies. In this case it is stipulated that plaintiff’s representatives were told by a member of the Board (upon an informal appearance) that the Board would not remove the item of “work in process” from plaintiff’s assessment, but would only determine whether the valuation allocated to it was lawful and fair. There is no contest here on that valuation and, in fact, plaintiff concedes that it is proper (on both years) if the item is taxable at all. Chapter 150 of our statutes clearly indicates that a manufacturer cannot lawfully operate without a license and that a license for the ensuing year will be refused unless the assessed taxes are paid in full. It was stated in plaintiff’s protest letter that it had been advised that a license would be refused if the tax was not paid in full at that time; and defendants seem to concede this. In this case the issue was not really one of valuation (although possibly the total value might have been considered) but of statutory construction. In view of the foregoing it is unnecessary to consider any other reason advanced by plaintiff to support its right to proceed as it did. We conclude that plaintiff had the right to pa,y the taxes under protest and file these suits under § 139.031.

The cases of Cupples-Hesse Corp. v. Bannister, 322 S.W.2d 817 (Mo.1959), and Brinkerhoff-Faris Trust & Savings Co. v. Hill, 323 Mo. 180, 19 S.W.2d 746 (banc 1929), did not involve the applicability of § 139.031 which was enacted in 1969, and both involved only questions of valuation. The opinion in John Calvin Manor, Inc. v. Aylward, 517 S.W.2d 59 (Mo.1974), recognizes the broad scope of § 139.031 as a means of testing the legality of a tax, although stating that it is not the proper remedy for a mere reevaluation. Under all the facts and circumstances here, including the fact that plaintiff would have been denied a license if the taxes were not promptly paid in full, we hold that plaintiff was not precluded from proceeding under § 139.031 as it has done here.

This brings us to the merits. The sole issue is whether § 150.310(1), imposing the license tax on “raw material and finished products,” includes work in process. An amicus brief has been filed here on behalf of McDonnell Douglas Corporation; its principal contention is that if work in process is taxable at all, which it denies (citing recognized rules of construction and many cases), it must be valued and taxed merely at the value of its raw material content. McDonnell Douglas has a pending proceeding in which the Missouri Tax Commission has apparently so ruled, and that decision is said to be now on review. The primary issue raised in that brief, namely, the one of valuation, is not before us in this case. Plaintiff concedes that the values are correct if the item is taxable at all. We decline to consider collaterally the issue which the amicus curiae seeks to raise here and shall consider its brief only on general matters of construction as applied to the issue in the present case.

A total of five briefs has been filed here and many cases have been cited upon the general rules of construction of statutes. It would be folly to attempt to discuss these in any detail or individually. The rules are well recognized. In general, they are:. the primary endeavor is to ascertain and apply the intent of the legislature in enacting the statute, generally following the words of the statute, considered in their ordinary and common meaning, unless an absurd or unreasonable result would follow; if more is needed, a taxing statute should be strictly construed against the taxing authority, where a different intent does not appear; but the doctrine of strict construction is not to be pushed so far as to defeat the real legislative purpose by mere construction. See, generally, United Air Lines, Inc. v. State Tax Commission, 377 S.W.2d 444 (Mo. banc 1964); Crooks v. Harrelson, 282 U.S. 55, 51 S.Ct. 49, 75 L.Ed. 156 (1930); State ex rel. River Corporation v. State Tax Commission, 492 S.W.2d 821 (Mo.1973); 84 C.J.S. Taxation § 58b.

The merchants’ and manufacturers’ tax is an ad valorem tax, which is intended as a substitute for the personal property tax on the material so taxed. See § 137.340, applicable to First Class Counties. It is stipulated here that the “work in process” has not been returned or taxed as personal property. Under Art. X of our Constitution all tangible personal property is taxable except for specific exemptions, none of which is applicable here; and § 137.075 reaffirms that liability. The legislature had no constitutional authority to exempt this class of property. It has been held that if the legislature fails to include certain property it may not be taxed, since the constitutional provisions are not self-enforcing, and the omission is not a prohibited exemption. City of Kansas City v. Mercantile Mutual Building & Loan Ass’n, 145 Mo. 50, 46 S.W. 624 (1898); State ex rel. Koeln v. Lesser, 237 Mo. 310, 141 S.W. 888 (1911). Our problem, however, is whether this particular property has in fact been omitted from the statute or included in it, hence we turn to a construction of its terms. We may not loosely assume an intent of the legislature to omit a very substantial class of personal property which is certainly taxable in the ordinary course.

It is not particularly helpful to attempt an all-inclusive definition _ of “raw materials.” Under some circumstances it may mean one thing, under others another. Plaintiff essentially concedes this. (Reply Brief, pages 2-3.) The “raw materials” which plaintiff buys for its operations are certainly not the basic raw products, such as crude iron or other basic elements. While the record is not specific, plaintiff undoubtedly purchases finished steel, screws, locks, and .sundry other materials which have been worked on and produced in some manufacturing processes. These are its “raw materials.” We thus see immediately that “raw material” is a highly variable term and that a wide latitude is permitted in its actual construction. It would be a rather extreme interpretation to hold that by putting two or three of these things together they would cease to be “raw material” before the finished product is achieved. The omission by our legislature of any reference to “work in process” may well indicate that it considered all material to be raw material until it became a finished product.

It has been held that “raw materials” may include some articles which have been processed or otherwise worked up. State v. Hennessy Co., 71 Mont. 301, 230 P. 64 (1924). There, in seeking to determine whether the defendant (a bakery) was a manufacturer, being one making new products out of raw material, and in considering the term “raw materials,” the Court said that such is the material out of which the final product is made, and that what is raw material to one is the finished product of another; and further, that a bakery was a manufacturer, although its principal material was flour, a processed article. In City of Henderson v. The George Delker Co., 193 Ky. 248, 235 S.W. 732 (1921), it was held that raw materials need not necessarily be crude materials, but may be manufactured parts purchased from others to be assembled into buggies, i. e., axles, springs, wheels, upholstery, and dozens of other items of material. The plaintiff did further work upon those materials and was held to be a manufacturer. In City of Louisville v. Louisville Tin & Stove Co., 170 Ky. 557, 186 S.W. 124 (1916), a claim of exemption from local taxes was made on the ground that defendant was a manufacturer. It had bought steel, tin and various completed parts, shaped the tin and steel and added the parts, and made stoves, pots, etc. Defendant was held to be a manufacturer and exempt from the local tax. In so holding, the Court said that to be a manufacturer one need not make products from material which is completely raw. This clearly meant that the manufactured or processed parts were raw material. In Planters’ Fertilizer & Chemical Co. v. Board of Assessors, 116 La. 667, 40 So. 1035 (1906), it was held that a plant which changed the condition of certain elements and ingredients (whether raw or previously prepared) and converted them into a new and useful product, was a manufacturer.

If “work in process” is defined differently from “raw material” (as plaintiff contends), we may logically consider the “work in process” to be a sub-classification of “raw material” for all practical purposes. While the above cases are not specifically in point, we see that the “raw materials” used in a manufacturing process may be materials which, in and of themselves, have been processed or otherwise worked upon, and the question immediately arises, — if such materials are raw materials when acquired, then when, in the manufacturing process, do they cease to be raw materials? Is it when one or two screws are put into a piece of steel, when two or three of the processed parts are combined, when the product is half finished, or when the finished product is achieved? Would the mere shaping of the steel for a door or doorframe change it from its original status as raw material although it had previously been processed into steel? It is substantially impossible to state, in a logical and practical sense, a time when these materials would cease to be “raw material” (as that term is considered in its broad meaning), prior to completion of the finished product.

We have concluded that the legislature intended to tax all the material, at any stage, entering into the final product; hence, that raw material must be construed to include “work in process.” To rule otherwise, even in view of the strict construction rule, would accomplish an unreasonable and absurd result. There could be no reasonable purpose in omitting from the tax a very substantial portion of plaintiff’s taxable personal property simply because some work (little or much) had been done upon it, and plaintiff suggests none. We believe that the legislature intended to tax all of plaintiff’s tangible personal property used in the manufacturing process. As stated, no logical reason to the contrary has been suggested, only that the legislature “missed the boat.”

It is true that Kentucky and Florida have more specific statutes. They recognize classes of “raw materials” and “products in course of manufacture” or “partially finished products.” This cannot be particularly persuasive in our case. It might have been simpler if our legislature had been more specific, but we are required to construe the terms which it used, as they are, according to our own interpretation.

Plaintiff has argued that, as a practical matter, it would be extremely difficult to value and assess “work in process,” and that this is an additional reason for not taxing it. The argument is meaningless here, for the item has been valued and assessed (for each year) and plaintiff has conceded that the valuations are correct.

If “work in process” is not taxable, and plaintiff’s theory is correct, a manufacturer could easily perform a simple step, such as adding a screw or two or a little paint to the major part of his raw material (construed as plaintiff would have it) and thus convert it all into a nontaxable item. In this we are speaking generally, and not with reference to the plaintiff in this case.

Plaintiff argues that under our statutes the “work in process” is not taxable as personal property, that the manufacturers’ tax is exclusive, and that this property has been omitted from taxation. (See § 137.-340, § 137.410, § 150.310.) We are not convinced that the argument is sound,— State ex rel. Hopkins v. Brown Tobacco Co., 140 Mo. 218, 41 S.W. 776 (1897), — but in any event it is of no force here. We are considering a manufacturers’ tax only. Our references to the taxability of all tangible property generally are made to show the influences affecting, and the purpose of, the legislature. Plaintiff is arguing here that its work in process is exempt from any and all ad valorem taxes.

On February 10, 1958, the Attorney General of Missouri rendered an opinion in answer to a request from the Circuit Attorney of the City of St. Louis, to the effect that § 150.310, subjecting all “raw material and finished products” to the manufacturers’ tax, did include “work in process.” Therein he cited State v. Hennessy Co., 71 Mont. 301, 230 P. 64 (1924), supra; City of Henderson v. The George Delker Co., 193 Ky. 248, 235 S.W. 732 (1921), supra, and Tidewater Oil Co. v. United States, 171 U.S. 210, 18 S.Ct. 837, 43 L.Ed. 139. The opinion concluded that it was the intention of the legislature to include in the term “raw materials” all materials owned or held by a manufacturer “other than those in a finished state ready for delivery or sale,” and that it included “ * * * materials which have undergone some manufacturing processes but which will subsequently undergo further processes * * Of course, an opinion of the Attorney General is not binding upon the courts or the citizenry, but it may be, and often is, persuasive.

As indicated in our statement of facts, it was stipulated that a certified public accountant would have testified, if permitted, that “work in process” and “raw materials” were distinctly different entities in accounting practice, with some further elaboration; sundry objections were preserved.’ We do not find it necessary to rule specifically upon the objections because the proposed testimony is certainly not decisive and not even persuasive in our view of the case. The legislature in 1877 (Laws 1877, p. 293) did not, presumably, have in mind any rules or practices of technical accounting. It used the words “raw material” and “finished products,” just as they appear in § 150.310 today. Plaintiff refers to the repeal and reenactment of the Act in 1945, when, they say, the legislature would know what “work in process” is. When the Act was thus repealed and reenacted following the adoption of the new Constitution (as was much other legislation), there was no change whatever in any part material to our issue. Any changes were essentially formal. See Revision Note, V.A.M.S., § 150.310, p. 375. There is no reason to assume, and we do not do so, that the legislature, in reenacting the Act in a form in all material respects identical with the prior Act, had any different intention as to its meaning. State ex rel. Buerk v. Calhoun, 330 Mo. 1172, 52 S.W.2d 742 (1932). It did intend, and made, some formal changes which are wholly immaterial here. If the legislature wishes to exclude “work in process” from § 150.310, it may amend the section so as to do so specifically.

We are impelled to the conclusion that the judgments (in the two separate cases) should be affirmed. It is so ordered.

PER CURIAM:

The foregoing opinion by HENRY I. EAGER, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.

      . To which all statutory references will apply unless otherwise stated.


author: HOLMAN, Judge.

text:
    STATE of Missouri ex rel. Laura WALKER, Relator-Appellant, v. Honorable Harry J. STUSSIE et al., Respondents.
    No. 59037.
    Supreme Court of Missouri, En Banc.
    Nov. 10, 1975.

      Allan F. Stewart and Deborah H. Wein-stein, Legal Aid Society, Clayton, for relator-appellant.
    Arthur Kreisman, St. Louis, for respondents.
   HOLMAN, Judge.

This proceeding was filed in the circuit court against Magistrate Harry J. Stussie and Consumer Credit Rating Bureau, Inc., seeking a declaratory judgment and rule on the magistrate. The principal rulings sought were (1) that Section 517.480(1) be declared unconstitutional insofar as it requires the payment of “costs then accrued” as a prerequisite to the power of the magistrate to set aside a default judgment and (2) that an order of the magistrate made March 28, 1969, be set aside. The circuit court ruled in favor of respondents. Relator appealed to the St. Louis District of the Court of Appeals. That court being of the opinion that the appeal involves an issue requiring a construction of the constitution has transferred the case to this court.

The case was submitted upon the brief and argument of appellant, respondents not having filed any brief herein.

The underlying case originated by the filing of a suit in the magistrate court of the City of St. Louis by Consumer Credit against Laura Walker. At the request of plaintiff a change of venue was granted and the case was sent to the magistrate court of respondent in St. Louis County. The case was set for trial on January 28, 1969. Relator apparently intended to appear at the trial but was late and upon arrival found that a default judgment had already been entered against her. Later that day she filed a motion to set aside the default judgment which was immediately sustained and the judgment set aside. Apparently upon a showing that relator was a poor person the magistrate did not require payment of the accrued costs.

On March 28, 1969, Consumer Credit moved the court to set aside its order setting aside the default judgment which was sustained and the order set aside, the court ruling that the order setting aside the default judgment without requiring payment of the costs was in excess of its jurisdiction. This proceeding followed in due course.

Section 517.460 makes provision for entry of a default judgment by the magistrate when a defendant fails to appear. Section 517.480(1) provides that “Every magistrate shall have power, on the application of the party aggrieved or his attorney, and for good cause shown, to set aside the judgment ... by default above directed, upon the payment of all costs then accrued.”

At the outset of our consideration of this case we should bear in mind that “Magistrate courts are courts of limited jurisdiction. They possess only those powers expressly granted by statute. No presumption or inference may be invoked to enlarge this jurisdiction, and they cannot take powers by implication.” State v. Anderson, 413 S.W.2d 161, 162 (Mo.1967).

The first point raised by appellant is that the magistrate had authority to permit her to proceed as a poor person in seeking an order setting aside the default judgment and hence properly set same aside without requiring payment of the costs. She says that Section 517.480 should be construed in connection with Section 514.360 which provides that “If any magistrate shall before the commencement of any suit, or after the same has been commenced, be satisfied that the plaintiff is a poor person and unable to pay the costs and expenses of the suit, the magistrate may, in his discretion, permit him or her to prosecute his or her action as a poor person, from whom no security for costs shall be required.”

We do not agree with relator’s contention. Section 517.480 specifically requires the payment of the accrued costs as a condition for setting aside a default judgment. Section 514.360 applies only to plaintiffs. Since magistrates have only such powers as expressly granted we cannot construe Section 514.360 as authorizing a magistrate to permit a defendant seeking to set aside a default judgment to proceed as a poor person and obtain relief without complying with the statute.

Relator’s second contention is that the magistrate did not have authority to enter the order setting aside the order setting aside the default. With this we agree. We have examined all of the statutes specifying magistrate court procedure and cases construing same (as well as similar prior justice court statutes) and we find nothing which would authorize the magistrate, two months thereafter, to set aside the order in question and, in effect, reinstate the judgment against relator. We have considered the fact that it might be said that the magistrate did not have jurisdiction to set aside the default unless the costs were paid and hence the order was void and could be attacked in most any manner at any time. It should be noted, however, that in the case of Levine v. Marchisic, 270 S.W. 643 (Mo.1925) this court held that failure to require payment of the costs as required by the statute did not oust the court of jurisdiction; that such was error which could be waived.

The case of Olson v. Nunnally, 47 Kan. 391, 28 P. 149 (1891) is in point. There (as here) the court made an order setting aside a previous order setting aside a judgment. The court held that said order “certainly could not revive or resuscitate the former defunct judgment.” 28 P. 150.

As we view this matter the original case is now pending in magistrate court awaiting trial proceedings as provided in Section 517.490.

Our foregoing decision makes it unnecessary for us to consider the contention that a portion of Section 517.480(1) is unconstitutional. Rider v. Julian, 365 Mo. 313, 282 S.W.2d 484[23] (1955).

The judgment is reversed and cause remanded to the trial court with directions to enter an order directing the magistrate (now Hon. Dennis J. Quillin) to proceed with the trial of the case in question in accordance with Section 517.490 and other applicable statutes.

Reversed and remanded.

MORGAN, HENLEY, FINCH and DON-NELLY, JJ., concur.

SEILER, C. J., and BARDGETT, J., concur in result.

      . All statutory references are to RSMo 1969, V.A.M.S.