author: MOORE, Justice.

text:
    LONGVIEW CONSTRUCTION AND DEVELOPMENT, INC., Appellant, v. LOGGINS CONSTRUCTION COMPANY, Appellee.
    No. 801.
    Court of Civil Appeals of Texas, Tyler.
    May 8, 1975.
    Rehearings Denied June 5, 1975.

      Holcomb & Norwood, Tyler, Fred Eris-man, Longview, Ramey, Flock, Hutchins, Grainger & Jeffus, Mike A. Hatchell, Tyler, for appellant.
    John R. Brumbelow, Tyler, for appellee.
   MOORE, Justice.

This is a suit brought by a prime contractor against a sub-contractor for damages for breach of contract. Plaintiff Loggins Construction of Tyler, Texas, brought the suit to recover damages alleged to have resulted from defendant Long-view Construction and Development, Inc.’s breach of its sub-contract with Log-gins to perform certain excavation and earth work in conjunction with construction of a football stadium for Stephen F. Austin University of Nacogdoches, Texas. The case was tried before a jury and judgment was rendered in favor of Loggins for the sum of $49,255.00, based on the jury’s finding that Longview failed to complete the work and failed to substantially perform its contract. Longview duly perfected this appeal.

We affirm in part and reverse and render in part.

The evidence shows that Loggins Construction Company, as general contractor, contracted with Stephen F. Austin University to construct the stadium. One of the component parts of the project was site clearing and certain dirt work encompassing (1) clearing, grading, and filling the site, (2) stripping and stockpiling the top soil, (3) making a 20-foot excavation for the football field, (4) spreading sand on the football field, (5) construction on the east and west sides of the field of two earth mounds, called “berms,” upon which bleachers, walks, concession stands and a press box were to be constructed, and (6) some grading and filling on two parking lots.

Longview Construction and Development, Inc., was the successful bidder on the foregoing work and contracted with Loggins to do the work for the sum of $101,000.00.

The pertinent parts of the sub-contract are as follows:

“FIRST: The SUB-CONTRACTOR agrees to furnish all labor, materials, insurance, taxes, tools and equipment to perform all work necessary to complete the,
Site Clearing — (No Burning of Trees
or Brush)
Strip Top Soil & Stockpile
Machine Excavation, Fill & Select Fill to Subgrade
Spread Sand Fill at Football Field (Sand by LCC) for the above named structure, according to plans, specifications, and addendum No’s 1 & 2 heretofore furnished by above named architect, and to the full satisfaction of said architect.
?|c j(i ⅜ # j}« ⅜
“EIGHTH: In consideration whereof, the said CONTRACTOR agrees that he will pay to the said SUB-CONTRACTOR in monthly payments, the sum of $101,000 for said materials and work, said amount to be paid as follows: Ninety per cent (90%) of all labor and material which has been placed in position by said SUB-CONTRACTOR to be paid on or about the 15th of the following month, based on estimate submitted to CONTRACTOR by SUB-CONTRACTOR no later than the last day of the month, except the final payment which the said CONTRACTOR shall pay to the said SUB-CONTRACTOR within 30 days after the SUB-CONTRACTOR shall have completed his work to the full satisfaction of the said architect or owner.”

The plans and specifications provided that the football field and surrounding area were to be excavated below ground level and the soil was to be piled on each side to serve as a foundation for the bleachers. The specification provided that the soil was to be excavated and stacked at a certain specified grade.

Longview commenced work on the project on or about January 1, 1972. By September 20, 1972, the football field and parking lots had been cleared and excavated, and the slopes on both sides of the field had been constructed. Relying upon the conclusion of its foreman, Mr. Sipes, Long-view determined that the sub-contract had been completed and informed Loggins of the completion. Upon inspection of the work, Ray Loggins, President of Loggins, determined that the work was not satisfactory and did not conform to the plans and specifications because the slopes on both the front and back sides contained too much soil and were not constructed on the grade level required by the specifications. Loggins testified that the subgrade on parking lots A and B and other areas was not excavated to the level required by the plans and specifications because it was too high in some areas and too low in others. Two surveyors, Chris Marek and Frank Mitchell, who worked on the job for a registered engineer employed by Loggins, corroborated Loggins’ testimony. They testified that neither the slopes nor the excavated areas were on grade at the time Longview left the job. Mitchell stated that he told Longview’s Mr. Sipes that the slopes were not on the required grade and he replied that he “just couldn’t do it.”

Ray Loggins requested Longview to return and complete the job, but Longview maintained that the job was completed according to the plans and specifications and refused to return. Since Loggins was unable to get another contractor to complete the work on a bid basis, he hired Simon Traylor & Son to'complete the job on an hourly basis. The evidence shows that in order to complete the job, Traylor & Son were required to remove from one to three feet of soil from the slopes constructed by Longview. In order to meet the requirement of the plans and specifications, approximately 30,000 yards of soil had to be removed. The removal of the soil from the upper part of the slopes required the use of specialized equipment making the work more expensive. It took approximately five months to complete the work. According to Ray Loggins, the total cost to complete the job according to the plans and specifications amounted to the sum of $63,976.58. His testimony as to the amount paid Simon Traylor & Son was corroborated by numerous cancelled checks.

After the project was completed, Log-gins brought this suit against Longview seeking to recover (1) the sum paid Simon Traylor & Son to complete the subcontract, (2) the value of the time and equipment used by Loggins to complete the contract, and (3) for special damages as a result of a $250.00 per day penalty assessed against Loggins by the owner for delay in completing the contract. Long-view answered with a general denial and filed a cross-action in the nature of a sworn account alleging that it had completed its sub-contract and praying for a recovery of the balance due on the sub-contract in the amount of $20,395.58.

The jury found in response to the respectively numbered special issues (1) that Longview failed to perform all work necessary to complete the contract according to the plans and specifications, (2) that the reasonable cost to Loggins to complete the contract according to the plans and specifications was $63,400.58, (3) that Log-gins failed to prove by a preponderance of the evidence that Longview knew that Loggins would be required to pay the owner liquidated damages for failure to complete the stadium on time, (4) that Long-view reasonably should have known that Loggins would be liable for liquidated damages in the event the project was not completed on time, (5) that Longview’s failure to complete the job in a workmanlike manner so as to meet the progress of the job (6) which was a proximate cause of Loggins’ delay of (7) 25 days, (8) that Longview did not substantially perform the contract, and (9) that Loggins did not substantially interfere with the performance of the work by Longview.

The final judgment of $49,255.00 was computed as follows: (1) completion cost found by the jury, $63,400.58, (2) plus special damages caused by delay attributable to Longview of $6,250.00, and (3) less re-tainage admittedly due Longview in the amount of $20,395.58.

By the first point of error Longview urges that the trial court erred in overruling its motion for instructed verdict and motion non obstante veredicto. Longview takes the position that the sub-contract provides for monthly payments as the work progressed based on the architect’s estimate of the percent of the work performed, and that the estimate of the architect is final and conclusive. Based on this premise Longview argues that since the evidence conclusively shows that the architect certified the work to be 98% complete when it stopped work, Loggins was obligated, as a matter of law, to pay the full contract price, less 2% or $2,573.00 which would be required to bring the work to full completion. We cannot agree with this proposition.

The evidence shows that Loggins, in accordance with the contract, certified to the architect as to the percentage of the work completed each month. In turn, the architect certified the same percentage to the owner and recommended payment on that basis. The last such certification was made on August 25, 1972, and shows that both Loggins and the architect certified that 98% of the work had been completed.

In support of its contention Long-view relies on the holding in Kilgore v. Northwest Texas Baptist Educational Soc., 89 Tex. 465, 35 S.W. 145 (1896). The contract involved in that case was one in which the parties expressly agreed that the owner would pay the contractor as the work on the building progressed according to the estimate of the architect, whose estimates were by the terms of the contract made binding upon the owner. In the instant case the parties did not agree that the estimates for payment by the architect would be final and conclusive. Hence the decision cited is not applicable. Funk v. House, 168 S.W. 481, 485 (Tex.Civ.App.,1914, dism’d.). The rule announced in Kil-gore is operative only where it appears from the express terms of the contract that it was the intention of the parties that the determination of the person to whom the decision was entrusted would be final and conclusive; and such a provision will not be implied. Black v. Acers, 178 S.W.2d 152 (Tex.Civ.App., Dallas, 1944, writ ref.); Delhi Pipeline Corporation v. Lewis, Inc., 408 S.W.2d 295 (Tex.Civ.App., Corpus Christi, 1966, writ ref’d, n. r. e.).

There is nothing in the sub-contract, addendums 1 and 2, or the plans and specifications providing that the determination of the architect would be final, binding or conclusive, consequently, the fact that the architect had certified to the owner that the sub-contract was 98% complete on the date Longview left the job would not be binding and therefore would not constitute conclusive proof of the fact that 98% sub-contract work had been performed before Longview left the job. The controlling issue was whether Longview failed to perform all work necessary to complete the work according to the plans and specifications. In response to Special Issue No. 1, the jury found that it did not. The evidence, when viewed in a light most favorable to Loggins, is sufficient to support the finding. Defendant’s first point is overruled.

By its second point Longview contends that the trial court erred in overruling its motion for instructed verdict and for judgment notwithstanding the verdict because Loggins failed to discharge its burden of proving, as a condition precedent, that the architect was not satisfied with the work. Longview argues that since the architect did not testify and since there is nothing in the evidence showing that the architect was dissatisfied with its work, Loggins failed to prove the contract was breached according to the terms agreed upon for gauging performance. The proposition is without merit and is overruled.

Here again, Longview’s contention rests on the premise that the parties agreed to make the architect the sole arbiter of the amount of the work completed. The contract does not so provide. In paragraph one of the contract, Longview agreed to perform all work necessary to complete the contract according to plans and specifications to the full satisfaction of the architect. By Section eight Loggins agreed to make monthly payments to Long-view based upon an estimate furnished by it showing the amount of the work completed up to 90% of the contract price. The final 10% was to be paid within 30 days after the sub-contractor had completed the work to the full satisfaction of the architect or owner. Such stipulations look to the final result but do not amount to an agreement that the architect was to be the final arbiter of the amount of the work completed. In the absence of an agreement that the decision of the architect was to be final, binding and conclusive, the in- ' dividual opinion of the architect is not a condition precedent to Loggins’ right of recovery for breach of contract. 17A C.J.S. Contracts § 499(2) p. 752: Linch v. Paris Lumber & Grain Elevator Co., 80 Tex. 23, 15 S.W. 208 (1891); Olson v. Burton, 141 S.W. 549 (Tex.Civ.App., 1911, n. w. h.); Feldman v. Desantis, 156 N.E. 868 (Sup. Court of Massachusetts, 1927). For this reason Loggins was not required to prove that the work was unsatisfactory to the architect or owner. Defendant’s second point is overruled.

By its third point Longview contends that the trial court erred in allowing Log-gins a recovery of special damages in the amount of $6,250.00 representing the liquidated damage penalty assessed against Log-gins by the owner at the rate of $250.00 per day for its 25-day delay in completing the stadium project. Longview takes the position that since the jury refused to find that it knew of the liquidated damage clause in the contract between Loggins and the owner, Loggins failed to discharge its burden of proving Longview had notice of the circumstances producing such special damages and, therefore, Longview was not liable for such “special” damages. We sustain this contention.

Under the terms of the prime contract it was agreed that Loggins was to pay the owner $250.00 per day as liquidated damages in the event the project was not completed on or before September 1, 1972. There is nothing in the sub-contract indicating that the provisions of the prime contract were incorporated therein by refer-enee, nor is there anything in the plans and specifications or addendums 1 and 2 apprising Longview of the stipulation between the owner and Loggins. Ray Log-gins testified that he told Mr. Perry, Long-view’s vice president, of the $250.00 per day penalty provisions in the prime contract. He also testified that he furnished Longview with a Project Manual containing the stipulation. Longview’s witness denied that they were supplied a Project Manual and also denied that Loggins told them of the penalty provisions. They testified that they knew nothing of such a provision until suit was filed. In view of the jury’s finding, the jury apparently placed no credence in Loggins’ testimony and accepted Longview’s version that it did not know of the penalty provisions. It is undisputed that the owner assessed Log-gins a penalty of $250.00 per day for the delay of twenty-five days which the jury found was caused by Longview’s failure to complete the contract.

It is the general rule that losses resulting from collateral contracts may not be regarded as arising out of breach of the contract upon which the action is founded. The basis of this rule is “that such damages are not presumed, as a matter of law, to have been in the contemplation of the parties.” Iowa Mfg. Co. v. Baldwin, 82 S. W.2d 994 (Tex.Civ.App., Eastland, 1935, dism’d.); 25 C.J.S. Damages § 24c, p. 671. In order for an injured party to recover from a defaulting party, the amount of damages which he has been required to pay to a third party as a result of his breach, the injured party must establish that the defaulting party, at the time he entered into the contract, had knowledge of the special circumstances producing such damages. 17 Tex.Jur.2d Damages, secs. 59, 61; West Texas Utilities Co. v. Nunnally, 10 S.W.2d 391 (Tex.Civ.App., Eastland, 1928, n. w. h.); Northwestern Steam Boiler & Mfg. Co. v. Great Lakes Engineering Works, 181 F. 38 (8th Cir. 1910). The parties are not presumed to know the condition of each other’s affairs nor to take into account the provisions of a contract with a third party that is not known or communicated. Berlin Development Corporation v. Vermont Structural Steel Corporation, 127 Vt. 367, 250 A.2d 189 (1968); Macchia v. Megow, 355 Pa. 565, 50 A.2d 314, 316.

“Compensation is given for only those injuries that the defendant had reason to foresee as a probable result of his breach when the contract was made.” Restatement, Contracts, Sec. 330; 5 Williston on Contracts, secs. 1347, 1356-1357. In view of the fact that Loggins failed to prove that Longview had actual knowledge of the liquidated damage provisions in the collateral contract, we are of the opinion that the trial court erred in rendering judgment against Longview for “special” damages. Consequently, that part of the judgment awarding Loggins special damages in the amount of $6,250.00 is reversed and rendered in favor of Longview.

Loggins undertakes to sustain the judgment for “special” damages on the basis of the jury’s finding on Special Issue No. 4, wherein the jury found that Longview “reasonably should have known” that Log-gins would be required to pay liquidated damages for failure to complete the project on time. In view of the jury’s finding that Longview did not know that the prime contract contained a penalty provision, the parties obviously could not have contemplated at the time of the making of the contract that a breach thereof would give rise to a liability of this type. The “should have known” finding presumes a lack of knowledge and therefore forms no basis for an award of special damages. To hold otherwise would be contrary to the principle that the circumstances which occasioned such damages must have been foreseeable.

By the fourth point Longview contends the trial court erred in failing to enter judgment in its favor for $25,778.08 as prayed for in its cross-action brought in the form of a Sworn Account because Loggins failed to deny the claim under oath as is provided by Rule 185, Texas Rules of Civil Procedure. In the cross-action Longview sought a recovery of the balance due on the sub-contract.

Ruie 185 provides that unless the party resisting a suit on sworn account shall file a written denial under oath, deny the claim or a part thereof, he will not be permitted to deny the claim or any part thereof at the trial. Longview argues that since Loggins failed to deny the claim under oath, the court was required to enter judgment on the cross-action in its favor and erred in refusing to do so. In reply, Loggins argues that the agreement amounted to a special contract and that Rule 185 is not applicable. We agree. Under the following authorities a contract of this type is a special contract and is not governed by the provisions of Rule 185. Meaders v. Biskamp, 159 Tex. 79, 316 S. W.2d 75 (1958); Langdeau v. Bouknight, 162 Tex. 42, 344 S.W.2d 435 (1961). Since Loggins was not required to deny the claim under oath, the trial court did not err in refusing to enter judgment on the cross claim. Defendant’s fourth point is overruled.

Points five, six and seven assert that the jury’s findings on Special Issues 1 and 2 are against the great weight and preponderance of the evidence and that the damages assessed by the jury in special Issue No. 2 is excessive.

After a careful review of the entire record and upon weighing all the evidence, both that in favor of and against the verdict and judgment, we have concluded that we would not be justified in holding that the judgment is against the great weight and preponderance of the evidence. Points 5 and 6 are overruled.

The contention that the amount of damages assessed by the jury was excessive is overruled. The testimony of Ray Loggins, who was qualified as an expert witness, was sufficient to support the amount of the award. His testimony was corroborated by invoices and cancelled checks showing the expenditure of such amount. There is nothing to show that the verdict was affected by bias, sympathy or prejudice.

Finally, Longview complains of the action of the trial court in excluding the testimony of three witnesses who would have testified that Longview’s work was impeded and delayed by other sub-contractors alleged to be in privity with Loggins.

The excluded testimony, offered by way of a bill of exception, shows that the witnesses would have testified that the work of other sub-contractors, as well as other unidentified persons on the job, interfered with Longview and as a result its work was delayed to some extent. None of the witnesses testified that any of Loggins’ men or equipment interfered with Long-view, nor was there any testimony that the interference by others prevented Long-view from completing the job. The trial court excluded the testimony on the ground that it was irrelevant and immaterial and that it failed to connect Loggins with the alleged wrongful interference.

Generally speaking, where one party to a contract, by wrongful interference prevents the other party from performing, such action by the party at fault constitutes a breach of the agreement. The effect of such a breach is not only to excuse performance by the injured party, but also to entitle him to recover any damages sustained. 13 Tex.Jur.2d Contracts, p. 557, sec. 307. Longview neither pled that it was excused from performance nor did it seek a recovery by way of an offset for damages allegedly resulting from interference.

Longview argues first that the testimony was admissible to rebut plaintiff’s allegation that it caused a delay of the project causing a penalty to be assessed against Loggins for failure to complete the project on time. Under the particular fact situation involved here, we fail to see how the excluded testimony was material. Even if it was, our previous holding that Loggins was not entitled to recover special damages for the penalty assessed against it renders the question of admissibility moot and immaterial. Rule 494, Texas Rules of Civil Procedure. Second, Longview contends the testimony was admissible because it was material to its allegation that Log-gins breached its duty to coordinate all of the work on the job. We do not agree. The duty to coordinate the work is not mentioned in the sub-contract. While Log-gins did assume such duty to the owner by virtue of the prime contract, the provisions of the prime contract were not incorporated by reference in the sub-contract. Consequently, even though other sub-contractors may have interfered with Longview, such would not amount to a breach of duty owed Longview. Further, in the absence of any testimony showing Loggins participated or acted in concert with third parties in causing Longview to be delayed, Log-gins cannot be held liable ex delicto. Cox v. Process Engineering, Inc., 472 S.W.2d 585, 588 (Tex.Civ.App., 1971, n. w. h.). Defendant’s eighth point is overruled.

That part of the judgment awarding Loggins a recovery for special damages in the amount of $6,250.00 is reversed and rendered in favor of Longview Construction and Development, Inc. The judgment will be reformed so as to grant Loggins Construction Company a recovery of $43,005.00. In all other respects the judgment is affirmed.

Affirmed in part and reversed and rendered in part.

      . Hereafter, the parties will be referred to as they appeared in the trial court or by proper name.

      . Hereafter referred to as the “owner.”


source: Caselaw Access Project

author: BISSETT, Justice.

license: Public Domain

text:
    SOUTH TEXAS BANK et al., Appellants, v. Ricardo RENTERIA et al., Appellees.
    No. 949.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 22, 1975.

      O. Otis Bakke, Gallman, Bakke & Schi-wetz, Houston, Ramon Garcia, Edinburg, for appellants.
    Oscar Palacious, Pharr, O. C. Hamilton, Jr., Neal Norquest, McAllen, for appellees.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment that cancelled the certificate of title to an automobile previously issued to one person, and ordered the issuance of a certificate of title to the same vehicle to another person. Ricardo Renteria instituted suit to require the Motor Vehicle Division of the Texas Highway Department to issue a certificate of title to the automobile to him. Robert A. Stephenson, South Texas Bank, Les Mannering Oldsmobile Company, and the First State Bank of Alamo intervened. Following a trial before the court without a jury, judgment was rendered which ordered the Motor Vehicle Division of the Texas Highway Department to cancel the certificate of title to an automobile theretofore issued to Robert A. Stephenson (Stephenson), and to issue a certificate of title to the automobile to Richardo Renter-ia (Renteria). Stephenson and South Texas Bank have appealed.

Stephenson claims that he purchased the automobile prior to the time that it was purchased by Renteria. South Texas Bank is shown as a lienholder on the title asserted by Stephenson. The automobile in question was also sold to Les Mannering Oldsmobile Company, who, in turn, sold it to Renteria. The First State Bank of Alamo is shown as a lienholder on the title asserted by Renteria.

Stephenson, who claims title under a certified copy of the original certificate of title to the automobile, contends that his title, being earlier in time, is superior to that asserted by Renteria since his certificate of title was issued prior to the time that Ren-teria made application for a certificate of title to the automobile. Renteria, who claims title under the original certificate of title, contends that his title is superior to that asserted by Stephenson since he is an innocent purchaser for value without no-lice that the automobile had been sold under a certified copy of the original certificate of title prior to the time that he (Ren-teria) purchased it.

The material facts are undisputed. The automobile, a 1973 Oldsmobile Cutlass, was first sold new by Les Mannering Oldsmobile Company (Les Mannering), McAllen, Texas, to one Juan J. Tijerina (Tijerina), on August 30, 1973. The sale was for cash. An original certificate of title (No. 65375410) was issued to Tijerina on September 13, 1973. Tijerina applied for a certified copy of the original certificate of title on January 22, 1974, which was issued to him on the same day.

On January 30, 1974, Tijerina, who had been, in Stephenson’s employ for about a week, approached Stephenson at his place of business in Houston, Texas, and asked for a loan of $3,000.00. Stephenson, in relating the details of the conversation with Tijerina, testified:

“. . .1 first told him we could not loan him the money that he needed, $3,000.00. He assured me he would pay us back and as a good faith effort he would put his car up as collateral on this loan. I was not able to get in touch with our banker and he indicated to me he had to be in McAllen the next morning. So I had him execute a Power of Attorney so that I could endorse whatever notes or assignments the Bank would require to loan him the money on the car, and I gave him my personal check for $3,000.00.
* * * * * *
Q But you were not going to keep the car? He was going to have the use of the car?
A He had the car.
Q It was his?
A Right.
******
A It was his, subject to that loan.
Q Subject to the loan?
A Right.
******
—I gave him $3,000.00, but I went on to explain to him that he would have to pay not only the $3,000.00, and interest, but any transfer fees if the bank would not put it in his name, which turned out to be the case.”

It is shown by the evidence that South Texas Bank refused to make a loan to Ti-jerina, but did agree to loan $3,000.00 to Stephenson, conditioned that he (as agent for Tijerina) transfer the title to the automobile to himself and show a lien thereon in favor of the Bank. With reference to this phase of the transaction, Stephenson said :

“The next morning I was in touch with the banker who insisted that it (the title) be put in my name and the lien be recorded in the Bank’s favor”.

Accordingly, Stephenson, on January 31, 1974, pursuant to a power of attorney from Tijerina, executed an assignment on the back of the certified copy of the certificate of title which assigned the title to the automobile to him. He made application for a certificate of title through the Tax Collector of Harris County, Texas, on January 31, 1974, and signed a $3,000.00 note to the bank. The money ($3,000.00) was deposited by Stephenson, and his personal check to Tijerina, dated January 30, 1974, was subsequently cashed by Tijerina.

Tijerina was in McAllen at that time. Stephenson then telephoned Tijerina, apparently on February 1, 1974. Stephenson said that he explained to Tijerina that the bank insisted that title to the automobile be transferred to him (Stephenson). Tijerina voiced no objection. In recalling that conversation, Stephenson made the statement:

“I told him the amount of the note, that it was due on or before April 30th at which time he assured me he would be back in Houston and pay that note or surrender the car to me”.

Stephenson, when asked why he would “lend a perfectly unknown person $3,000.-00 on a power of attorney and let the individual keep the car”, replied:

“The reason being, I explained to him I would not loan him the money except when he agreed to put up this automobile as collateral on the money that he was advanced”.

When queried further concerning the transaction with Tijerina, Stephenson testified:

“I only agreed to loan him what the bank would loan me on that piece of collateral”.

Stephenson permitted Tijerina to remain in possession of the automobile. Tijerina never did pay either Stephenson or the bank any part of the $3,000.00.

The Motor Vehicle Division of the Texas Highway Department issued a new certificate of title (No. 66657621) to Stephenson on February 20, 1974.

Tijerina traded the same automobile to Les Mannering on February 15, 1974. In doing so, he, in proper person, as seller, executed the assignment on the back of the original title certificate whereby the title was assigned to Les Mannering. He delivered the possession of the automobile to Les Mannering at that time. The automobile was sold by Les Mannering to Renter-ia on February 25, 1974 for $3,495.00. Application for a certificate of title was made by Renteria through the Hidalgo County Tax Collector on February 26,1974.

On March 15, 1974, the Motor Vehicle Division of the Texas Highway Department notified all concerned of its refusal to issue a certificate of title to the automobile in the name of Ricardo Renteria on the ground that “there is a later record of title outstanding covering the above referenced vehicle . . . the later record of title being Title number 66657621 which was issued January 20, 1974 in the name of Robert A. Stephenson and records a lien to South Texas Bank”. Renteria then filed suit to resolve the controversy.

The trial court “ordered that the Motor Vehicle Division of the Texas Highway Department issue a certificate of title to Ricardo Renteria to the 1973 Oldsmobile, Motor or Vehicle Identification No. 3F37K3R243306, and cancel the certificate of title issued to Robert A. Stephenson”. The Motor Vehicle Division of the Texas Highway Department did not appeal from that judgment, and has agreed to be bound by the final decision in this case.

Findings of fact and conclusions of law were neither requested nor filed. Tijerina did not testify at the trial. Stephenson and South Texas Bank admit that Tijerina committed a fraud upon Les Mannering when he executed the assignment on the back of the original certificate of title, but they contend that such fraud is immaterial to the disposition of this appeal since Ti-jerina did not have legal title to the automobile when he traded it to Les Manner-ing. They claim that “Tijerina possessed no title to convey to Les Mannering Oldsmobile Company”; and “having no title he could not clothe Les Mannering Oldsmobile with any title”. They take the position that the transaction between Tijerina and Stephenson constituted a sale of the automobile, subject to “an equitable right to re-conveyance upon repayment of the money to Stephenson”.

It has been held that a deed absolute on its face may be shown to have been intended as a mortgage given to secure a debt owing to the grantee by the grantor. Wil-banks v. Wilbanks, 160 Tex. 317, 330 S.W. 2d 607 (1960). There is no reason why a sale of personal property, absolute on its face, could not have been intended as a mortgage given to secure a debt owing to the purchaser by the seller.

The fact that the assignment to Stephenson of the title to the automobile is in form a sale absolute, which was in every way acceptable to the Motor Vehicle Division of the Texas Highway Department as a valid transfer of title, does not preclude the transaction from being a mortgage as between Stephenson and Ti-jerina. To constitute a mortgage, the grantor of real property or seller of personal property, as the case may be, must have intended to pledge his property for the payment of a sum of money, or the performance of some other act. Wells v. Hilburn, 129 Tex. 11, 98 S.W.2d 177 (1936, opinion adopted); 55 Am.Jur.2d, Mortgages, § 33, pp. 215-216. The characterization of the transaction by the parties is not conclusive as to whether it was intended by the parties to be a sale absolute, a conditional sale, or a mortgage. Regardless of the form of the instrument, if the parties intended to execute the instrument in question for the purpose of securing an obligation, it will be construed as a mortgage. Fowler v. Stoneum, 11 Tex. 478, 507-508 (1854); Starns v. Adams, 484 S. W.2d 454 (Tex.Civ.App. — Waco 1972, writ dism’d); Wood v. De Winter, 280 S.W. 303 (Tex.Civ.App. — Fort Worth 1926, no writ). If the transaction itself, despite the form of the instrument and regardless of the label affixed by the parties to the transaction, is, in fact, designed as a security for the payment of money by the seller to the purchaser, equity will treat it as a mortgage. Bradshaw v. McDonald, 147 Tex. 455, 216 S.W.2d 972 (1949). Moreover, retention of possession and enjoyment of personal property by the seller is an indication that the transaction was intended as a mortgage and not as a sale, absolute or otherwise. Ruffier v. Womack, 30 Tex. 332, 340 (1867); Napper v. Johnson, 464 S.W.2d 496 (Tex.Civ.App. — Waco 1971, writ ref’d n. r. e.); 59 C.J.S. Mortgages § 10b(5), p. 38.

The record clearly shows that the transfer of the title to the automobile by Tijerina to Stephenson was intended to secure the $3,000.00 debt to Stephenson. South Texas Bank was fully informed of the intention of parties and even suggested the procedure to be followed. The testimony of Stephenson shows -that the $3,000.00 was a loan to Tijerina, not the purchase price for the automobile. Tijeri-na was permitted to retain possession of the car. These factors show that all parties to the transaction, Stephenson, Tijeri-na and South Texas Bank, intended the transfer of title to the automobile to be a mortgage, and nothing more. . We so hold. The record further shows that the transaction between Tijerina and Les Mannering and that between Les Manner-ing and Renteria each constituted a sale absolute of the automobile in question. The judgment of the trial court was correct and must be affirmed.

Even if it be assumed that the transaction between Stephenson and Ti-jerina was a sale absolute, and not a mortgage, there are other reasons why Renteria should prevail over Stephenson in this case. The Certificate of Title Act of the State of Texas, Vernon’s Tex.Rev.Civ.Stat. Ann. art. 6687-1 (1971), was enacted for the protection of the public, and the provisions thereof are to be liberally construed to effectuate the purposes for which it was enacted. Bank of Atlanta v. Fretz, 148 Tex. 551, 226 S.W.2d 843 (1950). The Act provides the only procedures for a valid transfer of title to a motor vehicle. It does not, however, preclude a transaction, as between seller and purchaser, from being a mortgage.

Sec. 36 of the Act outlines the procedures for obtaining a certified copy of the original certificate of title where the original has been lost or destroyed. That section also tells how a purchaser under a certified copy of the original certificate may protect himself from what could happen in the event the original certificate is used by the original owner to thereafter sell the automobile to a third person. Part of the section reads as follows:

“. . . Any purchasers or lien holders of such motor vehicle may at the time of such purchase or at the time lien is established require the seller or owner to indemnify him and all subsequent purchasers of said motor vehicle against any loss which he or they may suffer by reason of any claim or claims presented upon the said original certificate of title

The Act very plainly recognizes that a situation such as that which exists in the case at bar might arise. In such event, it is clear that the Legislature must have intended that an innocent purchaser for value who deraigns title through a regular chain of transfers under the original certificate of title and who takes possession of the vehicle should prevail against a purchaser who deraigns title under a certified copy of the original certificate. Any other construction would render the above-quoted portion of Sec. 36 of the Act meaningless. If the Legislature had not so intended, it would not have included such provision in the Act, or it would have stated that the issuance of a new certificate of title pursuant to a sale under a certified copy of the original certificate prior to a transfer of the title under the original certificate would cancel the original certificate and cut off the rights of all persons claiming thereunder.

It was established by the testimony of a Regional Supervisor for the Motor Vehicle Division of the Texas Highway Department that the Department merely processes applications for title to motor vehicles and does not attempt to decide the issue of superior title. The witness further testified that had the Renteria application for a new certificate of title reached the Department office first it would have been processed first. In that event, the Department would have issued a new certificate of title to Renteria, and would have refused to issue such a certificate to Stephenson.

We conclude that the portion of Sec. 36 of the Act under discussion was meant to deal with a situation just like the one presented by this appeal. Its clear import is that a title which emanates under an original certificate is superior to that which emanates under a certified copy of the original, despite the fact that the application for a new certificate under the certified copy reaches the Department first. The purchaser under the certified copy is, in effect, advised that any title issued thereunder may be later cancelled if an application for title under the original certificate, regular on its face, is subsequently presented. It is suggested, though not required, that a purchaser under the certified copy protect himself by means of indemnity from the seller as the law so provides.

A reasonable interpretation of the Act and common prudence make it the duty of a person who purchases a motor vehicle under a certified copy of the original certificate of title to require indemnity from the seller of such automobile if he is to be protected from the claim of an innocent third person who claims title under the original certificate. If a purchaser under the certified copy is derelict in that duty, he (and his lienholder, if any) must suffer the consequences of his own negligence. See Higgins v. Robertson, 210 S. W.2d 250 (Tex.Civ.App.—Amarillo 1948, writ ref’d n. r. e.). Here, neither Stephenson nor South Texas Bank required such indemnity from Tijerina.

Tijerina was in actual possession of the automobile when he contacted Less Man-nering. There is nothing in the record to put Les Mannering on notice that the automobile had been previously sold by Tijeri-na to Stephenson, or that South Texas Bank had a lien thereon. The original certificate of title, which showed Tijerina to be the owner of the automobile, was also in the possession of Tijerina on that date. Although not important to the decision of this case, it is interesting to note that the transfer of title to Les Mannering was made on February 15, 1974, which was five (5) days before the certificate of title was issued to Stephenson. Therefore, on February 15, 1974, the only title of record in the Motor Vehicle Division of the Texas Highway Department was the title evidenced by the original certificate, which, as already stated, was issued to Tijerina on September 13, 1973. Les Mannering was an innocent purchaser for value.

Renteria purchased the automobile in good faith from Les Mannering and for a valuable consideration. He took a transfer of the title to the automobile in conformity with the Certificate of Title Act. He relied upon the original certificate of title relating to the ownership of the automobile, was not negligent in doing so, and followed all statutory provisions in an attempt to obtain a new certificate of title.

We have concluded that title to an automobile which is evidenced by an original certificate of title, accompanied by physical possession of the automobile by the person who is shown by the original certificate to be the owner thereof, is the best title to the automobile. An innocent purchaser for value from such a person should not be required to look further with respect to the title.

As between Renteria and Stephenson, we hold that Renteria has the superior title to the automobile. The principles of fairness and commercial expediency require such a holding. Under the circumstances here presented, there is more reason to protect Renteria, who holds title under the original certificate of title, as opposed to Stephenson, who holds title under a certified copy of the original certificate of title. We further hold that Renteria’s title is free of the lien asserted by South Texas Bank.

For the above reasons, we affirm the judgment of the trial court. All of the points of error which have been brought forward by Stephenson and South Texas Bank, appellants, have been carefully considered, and they are all overruled.

Affirmed.


author: McCLOUD, Chief Justice.

text:
    HABITAT, INC., and M. A. Mills, Trustee, Appellants, v. Bill McKANNA, Appellee.
    No. 4749.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 27, 1974.
    Rehearing Denied May 23, 1975.
    Gerald R. Coplin, Passman, Jones, Andrews, Coplin, Holley & Co., Dallas, for appellants.
    Fred R. Brown, Brown, Brown & Bowen, Inc., Garland, for appellee.
   McCLOUD, Chief Justice.

This is a suit by Bill McKanna for debt and foreclosure of a mechanics’ and mate-rialmen’s lien. McKanna entered into an oral contract with Town East Real Estate Agency, Inc., to provide plumbing materials and labor in connection with the construction of 42 townhouses to be built on land owned by Town East Real Estate Agency. Plaintiff alleged he was owed $14,300 for labor and materials furnished. McKanna added as defendants, U. S. Financial-Gulf & Mountain, Inc., M. A. Mills, Trustee, and Habitat, Inc., alleging they claimed an interest in the property in question.

In a non jury trial the court awarded McKanna a $14,300 judgment against Town East Real Estate Agency and U. S. Financial-Gulf & Mountain, Inc. The court further held that plaintiff’s mechanics’ and materialmen’s lien was valid and ordered its foreclosure. The judgment provides, however, that plaintiff’s lien is inferior to a $64,000 vendor’s lien and directs that such superior lien shall be extinguished by the proceeds of the sale before plaintiff’s mechanics’ and materialmen’s lien is satisfied.

Defendants, U. S. Financial-Gulf & Mountain, Inc., M. A. Mills, Trustee, and Habitat, Inc., have appealed. Town East Real Estate Agency, Inc., has not appealed. We affirm in part and reverse and render in part.

The trial court found that plaintiff and Town East Real Estate Agency, Inc., entered into an oral contract in September of 1971 whereby plaintiff would do plumbing work on 42 townhouses to be built on the subject property for a total contract price of $27,300; that Town East paid plaintiff $13,000 in the form of “draws” as the work progressed; that plaintiff completed his work on or about March 21, 1972; that plaintiff prepared and filed his affidavit for record in the mechanics’ and material-men’s lien records on June 10, 1972; that Town East became the record owner of the subject property by deed dated October 16, 1970, and recorded October 20, 1970; that Town East executed and delivered to Fort Worth Mortgage Company a $450,000 note secured by a deed of trust covering the subject property; that both instruments were dated September 29, 1971, but the deed of trust was not filed for record until November 19, 1971; and, that plaintiff commenced visible work on the job site on October 27 or 28, 1971.

Defendants first contend the trial court erred in holding that plaintiff had a valid lien on all 42 lots. They argue that plaintiff and Town East agreed upon a price of $650 per unit and that plaintiff knew at the inception of work how much of the debt each lot was responsible for and that each lot was a separate and distinct parcel. The record reflects that plaintiff was paid $13,000 which defendants assert was for work performed on 20 units and since plaintiff was not able to testify as to which units or lots he had been paid for he was not entitled to a “blanket lien” on all 42 townhouse units.

Plaintiff filed his Hen on the following described land:

“Such property being known as 11902, 11906, 11910, 11914, 11918, 11922, and 11926 Brook Valley in the City of Balch Springs, Dallas County, Texas, and being more fully described as follows:
Being Lots One (1) through Forty-Two (42), in Block “B” of the Green Valley Townhouses Addition, an addition to the Town of Balch Springs, Dallas County, Texas.”

Defendants contend that “townhouses” should be treated as separate and distinct parcels of land and since plaintiff recognized that the townhouses were designed for separate sale he entered into a contract to perform labor and supply materials for 42 units at a set price per unit.

The trial court found that the contract was for a total price of $27,300, and plaintiff had been paid a “draw” of $13,000 leaving a balance owed of $14,300. Plaintiff testified he gave Town East a price on the “complete job” which he computed on the basis of $650 per townhouse unit.

In Lyon v. Logan, 68 Tex. 521, 5 S.W. 72 (1887), the court said:

“When materials have been furnished under a single contract for buildings erected on two or more contiguous lots owned by the person to whom the material is furnished, we see no reason why the lien should not attach to all the lots; and it would be exceedingly unreasonable to require the person who furnishes the material in such a case to ascertain how much of the material is placed in each house. This is a matter under the control of the owner of the property improved; and, if he does not see proper to make separate contracts for material to be used on each lot, he cannot be heard to say that a lien does not attach upon all the lots upon which the material is used.”

The rule is stated in 38 Tex.Jur.2d § 47, page 604, as follows :

“Ordinarily, a mechanics’ or material-men’s lien does not attach to premises separate and distinct from those on which the improvement or repairs were made. That lien may, however, extend to more than one lot or tract, provided the owner has chosen to consider them as a unit in contracting for the improvement; that is, if the improvement is made under an entire contract for the whole and is located on one body of land, it is one improvement, though there are several separate structures. As long as the owner treats the lots as one property, by making one contract for material to be used on all of them, without designating what part of the material is to be used on lot, the materialman may treat the lots as one piece of property in fixing his lien. In order for the lien to extend to two or more lots or tracts it is necessary that they should be contiguous, otherwise they cannot be necessarily connected with the improvement; the statute determines, however, the extent of the statutory lien and not the contract between the parties.”

The record contains evidence to support the trial court’s finding that plaintiff and Town East entered into a single contract which covered all of the 42 townhouses. We hold that plaintiff had a valid lien on all 42 lots.

We are next confronted with a priority of liens question. The court found that approximately $65,000 of the funds advanced by Fort Worth Mortgage Company were used by Town East to pay off a prior vendor’s lien which was created when Town East acquired the property. The record reflects that the Fort Worth Mortgage Company note and deed of trust were assigned to U. S. Financial-Gulf & Mountain in February of 1972. The court found that Town East defaulted on the note; that M. A. Mills was appointed substitute trustee under the deed of trust; that Mills caused to be posted the statutory notices provided in the deed of trust for a trustee’s sale to be held on November 7, 1972; that Mills, substitute trustee, executed and recorded a deed to subject property conveying it to U. S. Financial-Gulf & Mountain for an alleged consideration of $1,000 cash bid by U. S. Financial-Gulf & Mountain at a trustee’s sale allegedly held on November 7, 1972; that U. S. Financial-Gulf & Mountain then executed a deed back to Mills, trustee, for a consideration of $485,000 in January of 1973; and, that Mills then executed a deed conveying subject property to Habitat, Inc., in consideration of its taking the property subject to such $485,000 note.

The trial court’s judgment recited that the foreclosure by Mills was void because “no sum of money was paid or received.” In its findings of fact the court found that a sale of the property for $1,000 on November 7, 1972, would be for a “grossly inadequate consideration,” but found that the sale to M. A. Mills, trustee, for $485,000 was the true consideration received by U. S. Financial-Gulf & Mountain rather than the $1,000.

Mills testified that Charles Hagan, an agent for U. S. Financial-Gulf & Mountain, was present at the trustee’s sale and bid $1,000. Mills stated that Hagan did not actually give him $1,000, however, the record reflects a credit on the note for that amount.

In Thomason v. Pacific Mutual Life Ins. Co. of California, 74 S.W.2d 162 (Tex. Civ.App. — El Paso, 1934, writ ref.), the mortgagee’s cash bid was not actually paid in cash, but was applied as a credit upon the note. The court held that the credit upon the note was equivalent to receiving cash.

We hold the trial court erred in holding the foreclosure sale by M. A. Mills, trustee, was void.

The $450,000 Fort Worth Mortgage Company» deed of trust was not recorded until after plaintiff had visibly started working on the project. The trial court held that the deed of trust lien which was assigned to U. S. Financial-Gulf & Mountain was superior to plaintiff’s lien to the extent funds were used to pay off the prior $64,000 vendor’s lien. Plaintiff has not challenged this holding by the trial court.

The court held that U. S. Financial-Gulf & Mountain received by virtue of the foreclosure sale excess consideration over and above the amount of the $64,000 vendor’s lien and plaintiff’s $14,300 mechanics’ and materialmen’s lien and, therefore, U. S. Financial-Gulf & Mountain was indebted to plaintiff in the amount of $14,300.

We agree with the trial court’s holding and find some evidence to support it.

The evidence showed that Fort Worth Mortgage Company loaned Town East $450,000 on the property in September of 1971. On November 7, 1972, M. A. Mills, trustee, conducted a trustee’s sale whereby he purported to convey the property to the then mortgagee, U. S. Financial-Gulf & Mountain for $1,000. Within a few weeks U. S. Financial-Gulf & Mountain sold the property back to Mills, trustee, in consideration of his $485,000 note and thereafter, Mills, trustee, conveyed the property to Habitat, Inc., who bought subject to Mills’ note. We think the court could reasonably find from these facts that the true consideration received by U. S. Financial-Gulf & Mountain was not $1,000 as recited in the trustee’s deed, but $485,000 as evidenced by the subsequent transactions.

The $64,000 purchase money vendor’s lien was included in the $450,000 deed of trust which was foreclosed. The foreclosure cut off plaintiff’s inferior mechanics’ and materialmen’s lien. Irving Lumber Company v. Alltex Mortgage Company, 468 S.W.2d 341 (Tex.1971). The trial court held, however, that only that portion of the $450,000 deed of trust representing the prior purchase money lien was superior to plaintiff’s lien since the deed of trust was recorded subsequent to plaintiff’s visible commencement of work. Even though the foreclosure extinguished plaintiff’s lien he is, we think, nevertheless, entitled to recover money damages from the mortgagee at the foreclosure if at such time the mortgagee received consideration in excess of the $64,000 purchase money lien. In Irving Lumber Company v. Alltex Mortgage Company, supra, the court noted that the mechanics’ and materialmen’s lien holder did not seek any of the proceeds in the hands of the party foreclosing the superior mortgage. In the instant case plaintiff sought such excess proceeds and the court found that U. S. Financial-Gulf & Mountain received consideration over and above the $64,000 superior vendor’s lien and the $14,300 mechanics’ and materialmen’s lien.

The trial court’s judgment awarding plaintiff a judgment against U. S. Financial-Gulf & Mountain, Inc., for $14,300 is affirmed. That portion of the judgment holding the foreclosure void and decreeing a foreclosure of plaintiff’s mechanics’ and materialmen’s lien is reversed and rendered.


author: CADENA, Justice.

text:
    Tom NORTON, Appellant, v. MENARD LUMBER COMPANY, Appellee.
    No. 15358.
    Court of Civil Appeals of Texas, San Antonio.
    May 21, 1975.
    Wm. Keaton Blackburn, Junction, for appellant.
    Sam McCollum, III, B. D. Geeslin, Brady, for appellee.
   CADENA, Justice.

Plaintiff, Menard Lumber Co., Inc., filed this suit, in the form of a claim upon a verified account, to recover $9,509.78 for “goods, wares, merchandise and labor” furnished by plaintiff to defendant, Tom Norton, in connection with the construction by plaintiff of improvements to a camp house on the Allison Ranch in Menard County which defendant was occupying under a five-year hunting lease. Defendant appeals from a judgment rendered against him in the sum of $9,509.78, the full amount sued for by plaintiff.

In his answer, defendant alleged that he and plaintiff entered into a written contract on April 19, 1973, according to which plaintiff agreed to construct the improvements for the sum of $4,900.00, and that thereafter the parties entered into an oral contract for additional improvements to the camp house for an additional sum of $1,005.87, making a total contract price of $5,905.87. In addition, defendant denied that certain specified portions of the account, totalling $702.72, were just and true, since the enumerated items were not in fact furnished by plaintiff to defendant. Defendant admitted that he was indebted to plaintiff in the sum of $5,203.15, representing the alleged total contract price of $5,905.87 reduced by $702.72, the value of the items which, according to defendant, were not in fact furnished by plaintiff.

All relevant dealings took place between defendant and Clyde Rabun, president of defendant corporation. Prior to April 19, 1973, defendant and Rabun visited the camp house on the Allison Ranch and a general discussion was held relating to the improvements desired by defendant. On April 19, 1973, Rabun wrote a letter to defendant and enclosed a sketch “covering the desired improvements” and a list of the various materials which would be required. The letter stated that the “approximate cost” of the improvements “will run between $4,400.00 to $4,900.00.” It is undisputed that defendant authorized plaintiff to proceed with the work. After plaintiff had begun work on the camp house, defendant, sometime in June, 1973, visited the site, at which time he authorized additional work requiring extra materials, totalling $1,005.87.

The findings of fact made by the trial court recite, among other things, that plaintiff’s letter of April 19, which contained the estimate that the cost of the improvements would be between $4,400.00 and $4,900.00, and the accompanying sketch of the work proposed to be done, “did not include sufficient detail and specifications to bind the plaintiff to perform the contemplated work in any particular manner or to use any particular grade of material in the work.” One of the conclusions of law recited that the parties made “a binding contract for the plaintiff to do work for the defendant,” but that “the terms of the contract were not sufficiently specified be-' tween the parties to bind the plaintiff to do such work for the amount estimated by plaintiff before the work commenced.” It is clear that the judgment in favor of plaintiff was based on the theory that defendant authorized plaintiff to do the work, with no price being agreed upon, and that the amount awarded to plaintiff is based on the fact that the items listed in the account attached to plaintiff’s petition were furnished defendant by plaintiff and were reasonably worth the amounts charged by plaintiff for such items.

Defendant here contends that the trial court erred, as a matter of law, in holding that “there was not a definite fixed price contract ...” between plaintiff and defendant.

Plaintiff relies on the general rule to the effect that when the parties' have not agreed on a specific price, a contract calling for the transfer of goods or rendition of services is not enforceable. 17 C.J.S. Contracts Section 36 (2) c, p. 658 (1963). Therefore, plaintiff contends the trial court correctly decided the case on the theory that since defendant authorized plaintiff to do the work and the evidence establishes that there was no agreement concerning the specific price to be paid by defendant, defendant became bound to pay the reasonable value of the materials and labor furnished by plaintiff.

We have no quarrel with the general rule on which plaintiff relies. However, the facts of this case conclusively establish an agreement by plaintiff to do the work for an “approximate cost . . . between $4,400.00 to $4,900.00.”

It is well settled that there may be an agreed price for work and labor to be performed without an agreement on a specific sum. Thus, an agreement to render a performance at a price that shall not exceed a specified amount is valid as an agreement to render the performance at the stated maximum. 1 Corbin, Contracts,Section 97, p. 431 (1963); Anno.: 2 A.L. R.3d 701, 706-07 (1965). There is no rule which prohibits the fixing of a minimum and maximum price. Paul Blackwell Co. v. Dallas Transfer & Terminal Warehouse Co., 252 S.W.2d 501, 503-04 (Tex.Civ.App. —El Paso 1952, writ ref’d n. r. e.). Where the offer is stated in terms of a maximum and minimum price, the acceptance of the offer results in the formation of a contract which fixes the price at the stated maximum. As pointed out in Blackwell, this is true even in the face of a finding that the figures quoted in the offer were intended only as an estimate which was “only a rough or approximate calculation” and the offerer intended that the charges for the performance “might be more or less.” It is clear that here, as in Blackwell, plaintiff’s purpose in writing the letter dated April 19 to defendant was to obtain a contract for the construction of the improvements.

The Blackwell opinion further supports the conclusion that the fact that the “extent of the services” to be rendered by plaintiff was uncertain is irrelevant.

A contract in which the price is stated in terms of “approximately” a stated figure is not so indefinite and uncertain as to preclude enforcement. Harris v. Lattimore, 44 S.W.2d 1037 (Tex.Civ.App.—Fort Worth 1931, writ dism’d). Under the rules' announced in Blackwell and Harris, the evidence in this case establishes an agreement by plaintiff to do the work for “approximately” $4,900.00, the maximum price quoted in plaintiff’s letter of April 19.

In a letter written to defendant, plaintiff ackndwledges that the. variance between the estimate contained in the April 19 letter and the sum for which plaintiff eventually billed defendant is not within “the realm of reason.” In this same letter plaintiff concedes that when defendant authorized the doing of additional work in June defendant was acting on the assumption that the estimate furnished by plaintiff “was valid.” Plaintiff’s only explanation for the discrepancy between the estimated price and the amount which he now seeks to recover was that “this job went to hell so far as estimations are concerned.”

It must be concluded that plaintiff agreed to do the work for “approximately” $4,900.00. Even if allowances are made for the additional work authorized by defendant, on the assumption that plaintiff’s estimate was valid, it must be concluded that, as a matter of law, the sum which plaintiff seeks to recover cannot be considered as being “approximately” $4,900.00 plus the additional work authorized by defendant.

Clearly, an offer to perform work for “approximately” a stated figure, contemplates the possibility of a reasonable variance between the stated figure and the final cost. The evidence in this case furnishes no basis for determining what would be a reasonable variance between the quoted approximate price and the final cost. Under these circumstances, we are convinced that the interests of justice require that, instead of reducing the judgment in favor of plaintiff to the sum of $5,905.87, the sum which defendant concedes that he owes, the cause should be remanded for a new trial on the theory that the parties agreed to a price of “approximately” $4,900.00 plus the additional work authorized by defendant.

      . Plaintiff’s prayer for recovery of an additional $2,000.00 as attorney’s fees was denied, but plaintiff does not here complain of such denial.


author: SPURLOCK, Justice.

text:
    Ted SANDERLIN d/b/a Alasco Aluminum Awning Co., Appellant, v. G. D. DRANSFIELD et ux., Appellees.
    No. 17642.
    Court of Civil Appeals of Texas, Fort Worth.
    May 2, 1975.
    Rehearing Denied June 13, 1975.

      Hausenfluck & Gandy, and Dalton C. Gandy, Fort Worth, for appellant.
    L. Royce Coleman, Jr., Denton, for ap-pellees.
   OPINION

SPURLOCK, Justice.

This is an appeal by Ted Sanderlin, doing business under the assumed name of Alasco Aluminum Awning Company, from an order overruling his plea of privilege to be sued in his domicile, Tarrant County.

This suit was brought by G. D. Drans-field, and wife Marcia L. Dransfield, against Ted Sanderlin, for damages for conversion of their awnings and skirts taken from around their mobile home in Den-ton County. Plaintiffs seek to maintain venue in Denton County, Texas, under Section 9, of Article 1995, Vernon’s Ann. Tex.Civ.St., which provides that a suit based upon crime, offense, or trespass may be brought in a county in which such crime, offense, or trespass was committed by the defendant, or by his agent or representative.

Defendant brings this appeal on three points of error; that being that the Court erred in admitting hearsay evidence of the witness, Mickey Autry, to the fact that he was an agent, servant or employee of the defendant; there was no competent evidence that defendant committed a conversion of plaintiffs’ property in Denton County; and the court erred in overruling defendant’s plea of privilege because the evidence is legally insufficient.

We affirm.

Plaintiffs allege that they verbally contracted with the defendant to install the skirts and awnings on their mobile home. The defendant did not do so in a satisfactory manner. The bill for services was $194.00. Plaintiffs notified defendant that the services were not satisfactory and mailed to defendant a check for $100.00. The next day someone removed the skirts and awnings from the mobile home, and such personal property was not returned. Mrs. Dransfield testified, without objection, that early in the week following the trespass committed in Denton County, she telephoned the defendant’s place of business, and the telephone was answered by Mr. Autry. Defense counsel then objected to any such conversation as being hearsay. Extensive voir dire examination of the witness followed, and the witness testified that Mrs. Dransfield had dealt extensively with the defendant in a business relationship. This witness knew Mr. Autry, and knew that he was a cousin of the defendant and had been an employee of the latter for a long period of time. Mr. Autry had visited in her office as a business representative of the defendant when she was manager of a mobile home park. She recognized his voice during this telephone conversation. She had called the defendant’s telephone in connection with the business transaction made the basis of this suit. Mr. Autry, in response to her question, stated that neither the defendant nor his wife were in. He further admitted that the materials had been removed by the defendant. The evidence was then admitted into the record.

The points will be considered together because they are interrelated.

It is well settled that a conversion of personal property is a trespass within the meaning of Section 9, of Article 1995, V.A.T.S. Industrial Supply Company v. Stockton Oil Company, 408 S.W.2d 251 (Fort Worth, Tex.Civ.App., 1966, writ dism.).

The defendant, by filing his plea of privilege, established a prima facie case for change of venue. It then became necessary for plaintiffs to file their controverting affidavit and to sustain the burden of proving the case fell within one of the exceptions on which they relied. Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.2d 824 (1931); Johnson' v. Dallas Cooperage & Woodenware Co., 120 Tex. 27, 34 S.W.2d 845 (1931); Admiral Motor Hotel of Texas, Inc. v. Community Inns, 389 S.W.2d 694 (Tyler, Tex.Civ.App., 1965, no writ hist.); Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (1941).

In relying upon Section 9, plaintiffs had the burden of proving (a) a trespass had been committed; (b) it was committed in the county of suit; and (c) the defendant asserting the privilege committed the acts or they were committed by another under circumstances which make the defendant legally responsible. Langford v. Kraft, 498 S.W.2d 42 (Beaumont, Tex. Civ.App., 1973, ref., n. r. e.).

Defendant offered no evidence at the venue hearing. Plaintiffs offered competent evidence that a trespass had been committed in Denton County, Texas. No objection was made to such evidence. The defendant on appeal has not provided us with any argument or authority attacking such evidence. Defendant has therefore waived any consideration by this Court of the application of Section 9 other than as to whether there was a sufficient showing the defendant committed the trespass. Rule 418, Texas Rules of Civil Procedure; Whitson Company v. Bluff Creek Oil Company, 278 S.W.2d 339 (Fort Worth, Tex.Civ.App., 1955, affirmed, 156 Tex. 139, 293 S.W.2d 488,1956).

On appeal from an order overruling a plea of privilege, every reasonable intendment must be resolved in favor of the trial court’s judgment. James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959).

Mrs. Dransfield’s testimony was admissible concerning her conversation with Autry because such testimony, if believed, raised a presumption that the person spoken to had authority to speak for the defendant under the facts in the case at bar.

This Court stated in Western Union Telegraph Co. v. Campbell, 212 S.W. 720 (Fort Worth, Tex.Civ.App., 1919, writ ref.), as to testimony regarding telephone calls to a business establishment that, “ a message received over a telephone line maintained by a business office for business purposes was presumably received by an authorized person, and that this presumption becomes conclusive in the absence of proof to the contrary.” This Court quoted with approval from a treatise as follows: . . The presumption that the person who answers is authorized to speak may be very slight or strong, according to the circumstances, but the statements of such persons should be admitted in evidence as prima facie the statements of one having authority to speak.’ ”

Each of the points of error has been carefully examined and we find that the evidence was both legally and factually sufficient to support the order of the trial court. Each is overruled.

We affirm the judgment.


author: PHILLIPS, Chief Justice.

text:
    Edsel F. WHITTENBURG v. Dorothy Odell WHITTENBURG.
    No. 12261.
    Court of Civil Appeals of Texas, Austin.
    May 28, 1975.
    William E. Adams, Senterfitt & Adams, San Saba, for appellant.
    Jack Lee, Lee & Lee, Mason, Warden Terry, San Saba, for appellee.
   PHILLIPS, Chief Justice.

This is an appeal from the judgment of the district court sitting without a jury in a divorce case. The appeal is limited to the questions arising from the property settlement. We affirm the judgment of the trial court.

Appellant Edsel Whittenburg and appel-lee Dorothy Whittenburg were married in Llano, Texas in 1948. In 1952 appellant began work for the Army Air Force Exchange Service and remained in that employment for over twenty-one years. During the time of this service appellant contributed to a retirement pension plan through the Army Air Force Exchange Services. Upon appellant’s retirement from the service in 1973, he became eligible for a monthly pension based upon his twenty-one years of employment and the amount contributed to the pension during his prior years of service.

During their twenty-five years of marriage Edsel and Dorothy were residents in a number of states. Some of these states were common law property states while others were community property states. A number of the questions presented by this appeal deal with the percentages of time this married couple remained in the various states of their residence; however, due to the position we take here, we do not reach these questions.

The trial court awarded appellee one-half of the pension and benefit plan. Under the facts of this case we hold that the court did not abuse the discretion conferred upon it by law in making this property division.

These parties lived together as husband and wife for twenty-five years and raised a son to adulthood. There is no indication in this record that Dorothy was other than a good wife and mother. She had an eighth grade education and during the marriage learned no trade or occupation. She became accustomed to the living standard that Edsel’s salary, which ranged from $12,000 to $18,000 a year, was able to provide. Since these parties separated, Dorothy has been able to earn no more than $200 per month and lives in a government housing project.

On the other hand, Edsel is a relatively healthy man, fifty-one years old, who was trained during his Air Force Service career to be a manager of post exchanges. He has managed up to thirty employees and has received special government schooling in this regard. He testified that he intends to go back to work. In addition, he stands to inherit 120 acres of land in San Saba County from his aged parents, he being their only child. There is no other property of note involved, nor do we put much emphasis on an alleged loan from Edsel’s parents to see their son through college.

A vested annuity is “property” which may be divided in a divorce action. Davis v. Davis, 495 S.W.2d 607 (Tex.Civ.App.1973, writ dism’d). The trial judge is not required to divide community property equally and a portion of the husband’s separate property may be awarded to the wife where circumstances make such an award necessary for a fair and just division of the property. Sec. 3.63, Vernon’s Texas Family Code. Keene v. Keene, 445 S.W.2d 624 (Tex.Civ.App.1969, writ dism’d). Roye v. Roye, 404 S.W.2d 92 (Tex.Civ. App.1966, no writ). In the Matter of the Marriage of McCurdy, 489 S.W.2d 712 (Tex.Civ.App.1973, writ dism’d).

In the absence of findings of fact and conclusions of law, we must assume that the trial court took into consideration the entire circumstances of the parties in making what appeared to be a fair and just division of the property. The discretion in making this division would undoubtedly involve consideration by the court of the disparity between the respective earning power of each of the parties. Dobbs v. Dobbs, 449 S.W.2d 119 (Tex.Civ. App.1969, no writ).

Affirmed.


text:
    Herbert KNEBEL et al., Appellants, v. The CAPITAL NATIONAL BANK OF AUSTIN, Appellee.
    No. 12083.
    Court of Civil Appeals of Texas, Austin.
    May 21, 1975.
    Rehearing Denied June 11, 1975.
    Byron Lockhart, Charles G. Trenck-mann, Austin, for appellants.
    Louis Scott Wilkerson, Sneed, Vine, Wilkerson, Selman & Perry, James P. Hart, Hart, Keahey & Hart, Austin, for appellee.
   ON MOTION FOR REHEARING

PHILLIPS, Chief Justice.

On motion for rehearing we withdraw our original opinion and substitute the following.

The facts of this case are set out in detail in this Court’s opinion in Herbert Kne-bel, et al. v. The Capital National Bank of Austin, SOS S.W.2d 628. Our judgment was affirmed in part and in part reversed, and the cause was remanded to this Court by the Supreme Court (518 S.W.2d 795).

Remand was on the sole question of attorneys’ fees. The attorneys-petitioners in the Supreme Court who prevailed on this issue have maintained from the inception of this suit that they are entitled to attorneys’ fees under the “common fund” doctrine. The trial court held that whatever right to attorneys’ fees, they might have had was based on contract, under which theory the court rendered judgment denying recovery. We affirmed this judgment.

The Supreme Court held that the “common fund” doctrine is the proper rule in this case for recovery of attorneys’ fees, provided the attorneys-petitioners are able to show that the Knebel estate derived a pecuniary benefit by reason of their efforts.

The Court held that: “It is not shown as a matter of law either that the successful litigation sponsored by Herbert Knebel, et al., will substantially benefit the Knebel estate and its other beneficiaries, or will be detrimental to the estate and to them ..."

The Supreme Court also held that: “Since . . . [this Court] did not consider the question of benefit to the estate, and hence did not determine whether the implied finding of the trial court in the negative is against the great weight and preponderance of the evidence, the case will be remanded ... for determination of this question . . .”

Because the issue of attorneys’ fees was tried under a contract theory and not under the “common fund” theory, and inasmuch as the Supreme Court makes clear that there is competent evidence on both sides of the issue of “benefit to the estate,” it is our opinion that, at this stage of the proceedings, there is insufficient evidence on which the required findings, either pro or con, can be made. Consequently, we hold that the implied finding of the trial court in the negative was in error and that in the interest of justice the case should be remanded for trial on the issue of possible benefit to the Knebel estate, and if benefit is found to have resulted from efforts of the attorneys, the amounts and pro rata shares of the attorneys’ fees should be determined by the trial court. Rule 434, Texas Rules of Civil Procedure.

Judgment of the trial court is reversed, and the cause is remanded for new trial.

Motion for rehearing is overruled.

Reversed and Remanded.

SHANNON, J., not participating.

      . Factual sufficiency points encompass both “insufficient evidence” and “great weight points.” 4 McDonald, Texas Civil Practice in District and County Courts, § 18.14 (1971).