author: BISSETT, Justice.

text:
    Darrell COOPER, Appellant, v. Edward L. WILDMAN et ux., Appellees.
    No. 984.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1975.
    Rehearing Denied Sept. 30, 1975.

      Frank B. Sheppard, Crain, Crain & Sheppard, Cuero, for appellant.
    Kemper Williams, Jr., Cullen, Carsner & Williams, Victoria, for appellees.
   OPINION

BISSETT, Justice.

This is a real estate commission case. Darrell Cooper, a duly licensed real estate broker, filed suit against Edward L. Wild-man and wife, Laura Mae Wildman (the Wildmans), to recover a real estate commission (plus attorneys’ fees) under a written listing agreement for the sale of real property. The case proceeded to trial before a jury. At the conclusion of plaintiff’s case, defendants rested. Both parties moved for an instructed verdict. Plaintiff’s motion was denied, defendants’ motion was granted, and judgment was rendered that plaintiff take nothing by his suit. Plaintiff has duly perfected an appeal from that judgment.

The principal issue presented by this appeal is whether or not the defendants had the right to require the purchaser, produced by the plaintiff, to finance the purchase of the subject land with them. The plaintiff contends that he fully performed under the listing agreement when he produced a purchaser who was ready, financially able, and willing to buy the property at the price stated in the agreement for cash. The defendants claim that they were not bound to sell the land to such purchaser because the listing agreement gave them, the owners, the right to finance the sale, and that the prospective purchaser would not and did not agree to owner-financing.

Since the trial court instructed a verdict in favor of the Wildmans, defendants-appellees, we are required to view the evidence in the light most favorable to Cooper, plaintiff-appellant, the losing party in the court below, to indulge against the judgment every inference that can be possibly drawn from the evidence, and to disregard all evidence adverse to Cooper. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.Sup.1970); Bass v. General Motors Corporation, 491 S.W.2d 941 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.).

It has been held that where the plaintiff makes a prima facie case and the defendant fails or refuses to introduce any evidence which rebuts the plaintiff’s proof, the trial court is required, upon motion duly presented, to instruct a verdict for the plaintiff. Acme Letter Shop et al. v. State of Texas, 342 S.W.2d 770 (Tex.Civ.App.—Austin 1961, writ ref’d n. r. e.); Lesikar v. Lesikar, 251 S.W.2d 555 (Tex.Civ.App.—Galveston 1952, writ ref’d n. r. e.). In the case at bar, after Cooper had concluded the presentation of his evidence and had rested, the Wildmans rested without introducing any evidence to rebut Cooper’s proof. In disposing of this appeal, we consider only the evidence most favorable to Cooper, disregard all evidence adverse to him, and indulge against the judgment in favor of the Wildmans every inference that can be possibly drawn from the evidence.

The material facts are undisputed. On October 30, 1973, Mr. Wildman (Wildman), a real estate salesman who lived in Kerr-ville, Texas, came to the office of Mr. Cooper (Cooper) in Cuero, Texas, and told him that he wanted to sell his farm located near Thomaston, in DeWitt County, Texas. He did not have time to wait until a written listing agreement was prepared, but according to Cooper’s testimony, Wildman told him that he wanted $30,000.00 for the property, that the sale would be made subject to an existing grass lease, and that he would reserve one-half of the minerals and one-half of the royalty for a period of 20 years. Based on that conversation, Cooper, the next day, prepared a one-page written listing agreement with writing on both sides of the page and dated it November 1, 1973.

The listing agreement, insofar as this appeal is concerned, gave Cooper the exclusive right for a period of 180 days from November 1,1973, to sell (or exchange) the property described therein “at a price of $30,-000.00 or any other price or terms that the Owners may accept”, and provided for the payment to Cooper of a real estate commission of 5% of the gross sales price of the property “if the Broker shall during the term of this agreement (1) Produce a purchaser ready, willing and able to buy said property at price above listed, or any other price Owner has agreed to accept . ..” The listing agreement, except for an ac-knowledgement by the owner of a copy thereof, concluded with the sentence: “This Agreement . . . contains the entire agreement between them, and no representations or promises, oral or otherwise, not embodied herein shall be of force or effect”. Signature lines for the owner and the broker were provided at the bottom of the front page.

On the back of the document appears blanks for the showing of certain statistical information and data. Under the printed words “Other Information”, in addition to a recital that the seller shall retain ½ of minerals and ½ of royalty for a term of 20 years, appears the following words, hereinafter referred to as “the notation”, to-wit:

“Seller will finance 80% to right person for 8½% for a term to be negotiated.”

The agreement, in duplicate, with the above notation typed on the backside of the single-page instrument, was mailed to Wild-man on November 1,1973. Wildman, upon its receipt, struck out the word “exclusive”, which appeared in the first paragraph and, immediately before the lines provided for signatures of the parties, typed in the words:

“The owner reserves the right to sell this property without obligation to the listing broker.”

The agreement, as submitted by Cooper to Wildman and as changed by Wildman, was signed by Mr. and Mrs. Wildman, as owner, and was mailed back to Cooper, who received it on November 6, 1973. Cooper, as broker, signed both the original and the duplicate copy thereof, mailed the signed duplicate copy back to Wildman and kept the signed original for himself.

On November 7,1973, Cooper showed the property to Mr. Harold H. Harris (Harris), who agreed to purchase the property for $30,000.00 cash, and subject to the existing grass lease on the land, and subject, also, to the aforesaid mineral and royalty reservation. A contract of sale, dated November 10, 1973, was then prepared by Cooper. It provided for the purchase price of $30,-000.00 cash, of which $3,000.00, as earnest money, was deposited by Harris with an escrow agent. The contract recited that the remaining $27,000.00 was to be paid “in cash to the seller upon the delivery of a general warranty deed.”; that the sale was to be made subject to the then existing grass lease on the land; and that “Seller is to reserve one-half of the minerals and one-half of the royalty for a term of twenty years from the date of the sale.” The contract of sale, which was signed by Harris (and his wife), as purchaser, and by Cooper, as broker, was mailed by Cooper to the Wildmans for their signatures, as owner. They refused to sign it.

Cooper, on or about November 19, 1973, received a telephone call from Wildman, who, according to Cooper’s undisputed testimony, told him:

“ . . . he (Wildman) had talked to his — his tax man, and been advised he’d be smarter to finance a sale of the property. And the only way that he would sell the property would be if he could finance it.”

and asked him:

“ . . .to see if the Harrises would be interested in — in purchasing the property on the — with Seller financing.”

Cooper then contacted Harris and inquired as to whether he would be willing to let Wildman “carry the note” on the property. Harris replied that “he wouldn’t purchase it under those conditions, that he had cash money and that he wanted to buy it right out as it was originally agreed to.”

Harris testified that he had $30,000.00 in cash when Cooper showed the land to him, and that he was, at all times, ready, willing and able to pay cash for the land. He was upset because the Wildmans refused to sell the property to him for cash. The earnest money deposit was returned to him by the escrow agent on December 3, 1973.

In response to questions concerning the reason for the typing of the notation on the back of the listing agreement, Cooper testified, in effect, that after Wildman had explained the terms of the desired sale of the property to him at their meeting on October 31, 1973, and as Wildman was leaving his (Cooper’s) office, “he just turned and made the remark, ‘well, I would finance it to the right man’ ”. Cooper said that this statement was the only reference which was made with respect to any “owner-financing” prior to the time that the contract of sale was signed by him and by Harris. Cooper further testified that he did not type the words contained in the notation on the backside of the listing agreement at the request of Wildman, and that the only reason for doing so was “for my personal reference”. Cooper was positive that Wild-man, during the discussion on October 31, 1973, never “indicated that he wasn’t interested in selling it (the land) if he could not finance it (the sale).”

The language of the listing agreement herein involved, whereby the property was listed for sale “at a price of $30,000.00 or any other price or terms that the Owner may accept” does not render the agreement void for uncertainty or vagueness. It clearly means that Cooper, the broker, would have to find a purchaser who was ready, willing and able to purchase the land for $30,000.00 cash, or at any other cash price or upon terms approved by the Wildmans, the owner. Levenson v. Alpert, 399 S.W.2d 955 (Tex.Civ.App.—San Antonio 1966, no writ). The word “or” in the above quoted language of the listing agreement is used in the disjunctive. Cooper was not required to satisfy both conditions; he could meet the requirements imposed on him by producing either a purchaser who was ready, willing and able to pay $30,000.00 cash for the land, or a purchaser who would have purchased the land at some other price and on terms that were acceptable to the Wildmans.

The proof shows that Cooper was a licensed real estate broker at all times pertinent to this case. The listing agreement that was signed by all parties meets the requirements of Tex.Rev.Civ.Stat'.Ann. Art. 6573a, § 28. Cooper, in fact, through his efforts, did produce a purchaser (Harris) within the 180 day limit imposed by the listing agreement who was ready, willing and able to purchase the land for $30,000.00 cash. There is no evidence that the Wild-mans sold the property at any time to anyone for any price. There is no evidence that Cooper failed “to conform to the listing agreement” or “departed from the instructions of the owner”, as alleged by the Wildmans in their motion for an instructed verdict.

A duly licensed real estate broker, who is authorized to sell real property under a valid listing agreement, is entitled to the commission specified in the agreement when he produces a purchaser who is ready, willing and financially able to purchase the property at the cash price that the owner authorized the property to be offered for sale. This is but a rule of fairness and right. The owner cannot defeat the broker’s right to the commission by refusing to consummate the sale. To allow the owner to refuse to complete the sale after a valid listing agreement has been signed by both the owner and the broker and a purchaser has been found by the broker who can and will pay the cash purchase price set out in the listing agreement, and yet deny to the broker the right to the commission specified in the agreement, is “a proposition not to be countenanced”. Goodwin v. Gunter, 109 Tex. 56, 185 S.W. 295, 296 (Tex.Sup.1916); Stolaroff v. Campbell, 18 S.W.2d 838 (Tex.Civ.App.—El Paso 1929, no writ).

The notation on the back of the listing agreement with reference to owner-financing was adequately explained by Cooper. If there was any untruth or inaccuracy in Cooper’s testimony, the defendant Edward L. Wildman, being in court and having heard such testimony, could have readily disputed the facts as related by Cooper. He did not do so, but instead, remained silent.

We hold that the notation did not give the Wildmans, as owners, the right to demand that a purchaser, produced by Cooper, finance the purchase of the land with them. The notation is no more than an expression that the owners would be agreeable to financing 80% of the sales price at 8!⅛% interest provided they were satisfied with the prospective purchaser. It was not a condition of the listing agreement.

The failure to consummate the sale of the land to Harris is due solely to the default of the Wildmans. Cooper did everything required of him by the listing agreement. He is entitled to a recovery of 5% of $30,000.00, as a real estate commission.

Cooper is also entitled to recover reasonable attorney’s fees. The term “reasonable attorney’s fees”, as that term is used in Tex.Rev.Civ.Stat.Ann. Art. 2226, has been construed by the appellate courts of this State to mean such fees as a litigant would pay his own attorney for prosecuting the case and not a speculative or contingent fee based on uncertainties. Southland Life Ins. Co. v. Norton, 5 S.W.2d 767 (Tex. Comm’n App.1928); Wisznia v. Wilcox, 438 S.W.2d 874 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.).

It is well settled that a real estate broker’s claim for commission due him under a valid listing agreement, where the services required by the agreement are actually furnished and rendered by the broker (as is the case at bar), is a claim for “personal services” within the meaning and purview of Tex.Rev.Civ.Stat.Ann. Art. 2226. Shirey v. Albright, 404 S.W.2d 152 (Tex.Civ.App.—Corpus Christi 1966, writ ref’d n. r. e.), approved in Tenneco Oil Company v. Padre Drilling Company, 453 S.W.2d 814, 820 (Tex.Sup.1970); Texas Reserve Life Insurance Co. v. Security Title Company, 352 S.W.2d 347 (Tex.Civ.App.—San Antonio 1961, writ ref’d n. r. e.); Bradshaw v. Marcum, 321 S.W.2d 852 (Tex.Civ.App.—Dallas 1959, writ ref’d n. r. e.); Craft v. Netherton, 276 S.W.2d 855 (Tex.Civ.App.—Austin 1955, no writ).

In the instant case, Robert B. Eyehorn, Jr., a licensed, practicing attorney, of Yorktown, DeWitt County, Texas, testified that he was acquainted with the customary fees of attorneys who practice in DeWitt County; that he had an opinion as to a reasonable fee for Cooper’s attorney in this case; and that $500.00 would be a reasonable fee for legal services furnished Cooper. He was not cross examined by Wildman’s counsel. No contradictory or rebuttal evidence concerning reasonable attorney’s fees was introduced by the Wildmans.

It is conclusively shown by the record and stipulated by counsel for all parties to this appeal that Cooper made a written, formal demand on the Wildmans for his claimed commission of $1,500.00 for “personal services rendered”, more than 30 days before this suit went to trial. Cooper, the plaintiff, was represented by an attorney to prosecute his suit, who did prosecute the same in Cooper’s behalf. The unchallenged evidence is that $500.00 is a reasonable attorney’s fee for the services of his attorney.

We hold that it was reversible error to grant an instructed verdict in favor of the Wildmans and to overrule Cooper’s motion for an instructed verdict. All of Cooper’s points of error are sustained.

The judgment of the trial court is reversed and judgment is here rendered that Darrell Cooper, plaintiff-appellant, do have and recover of and from Edward L. Wild-man and Laura Mae Wildman, defendants-appellees, the sum of $2,000.00 (being $1,500.00 for the real estate commission earned by Cooper, and $500.00 for his attorney’s fees), together with interest thereon from and after January 29, 1975, the date judgment was rendered in the trial court, and for all court costs.

Reversed and rendered.

OPINION ON MOTION FOR REHEARING

The Wildmans, defendants-appellees, in their motion for rehearing, contend (for the first time in this appeal) that “the evidence conclusively showed no written contract between Wildman and Cooper” because Cooper’s action in sending a new listing contract to them on November 8,1973 “repudiated any listing contract previously signed by the parties.” Accordingly, we have reviewed the evidence in its entirety. The contentions have no support in the record.

Cooper, upon receipt of the listing agreement dated November 1, 1973 (plaintiff’s exhibit 2), which had been previously signed by the Wildmans, signed the same and mailed a signed copy thereof to the Wild-mans on November 8, 1971. The following statements appear in the letter of transmittal, to-wit:

“Please find enclosed a- copy of our listing agreement for your files.
Mr. Wildman, I would prefer to have an exclusive listing agreement on the property in lieu of the present agreement. I would be agreeable to raising the listing price to $32,000 if an exclusive agreement could be obtained. A new listing agreement is attached for this purpose. You and Mrs. Wildman are requested to sign and return the original of this agreement if you are agreeable to giving an exclusive listing at the higher price.”

In order to repudiate a contract, the repudiating party must positively, unequi-vocably, and unconditionally refuse to perform the contract prior to the time fixed for performance. Moore v. Jenkins, 109 Tex. 461, 211 S.W. 975 (1919); Surko v. Harrison, 391 S.W.2d 115 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.).

Cooper, in his letter of November 8, 1973, did not positively and unconditionally indicate that he had no intention of performing the listing agreement dated November 1, 1973. The proposed listing agreement was never signed by either Cooper or the Wildmans, and no evidence was offered by the Wildmans with respect thereto except to offer an unsigned copy thereof in evidence without comment or explanation. There is no evidence that the Wildmans were “agreeable to giving an exclusive listing at the higher price”. At best, the enclosure can only be construed as a new and separate offer by Cooper to the Wildmans, which was never accepted by the latter.

At all times prior to the filing of the motion for rehearing in this Court, the Wildmans consistently took the position that the listing agreement, dated November 1, 1973 and sued on by Cooper was an existing written contract between the parties. Their motion for an instructed verdict was based solely on the ground that Cooper failed to prove compliance “with the terms of the listing agreement signed by the parties and dated November the 1st, 1973, in that said listing agreement did state . that the terms of said sale would have to be agreeable to the defense, to the defendants . and that such earnest money contract presented to the defendants by plaintiff proposed only for a sales contract for cash, which was not acceptable by the defendants”. The thrust of the theory on which the action was defended prior to the filing of the motion for rehearing is further illustrated by the following quotations from the Wildmans’ appellate brief, wherein their counsel represented to this Court:

“Appellees state that the entire listing agreement, plaintiff’s exhibit 2, both front and back, comprised the agreement between the parties.
Briefly stated, the facts before the trial court were that appellant and appellees entered into a non-exclusive listing agreement which clearly indicated that appel-lees would finance the sale.”

The evidence conclusively showed a valid written listing contract between the parties, dated November 1, 1973, which was breached by the Wildmans. There was no evidence of a repudiation of that listing agreement. The motion for rehearing is overruled.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    In re ESTATE of Gertrude Byrd BATEMAN, Deceased.
    No. 821.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 4, 1975.
    Rehearing Denied Oct. 16, 1975.

      J. Byron Saunders, Saunders, Caldwell & Schmidt, Tyler, for appellant.
    William W. Byrd, Houston, for appellee.
   DUNAGAN, Chief Justice.

This is a case involving the jurisdiction of a Probate Court over an independent executor. P. P. Bateman, the independent executor and life tenant of his wife’s estate, filed an inventory and appraisement on September 13, 1973. Jewel Byrd, one of several remaindermen, filed a motion entitled “complaint” to alleged omissions from that inventory on November 12, 1974, in the Smith County Court sitting in probate matters. Byrd sought to require Bateman, pursuant to Sec. 258 of the Texas Probate Code, 17B, V.T.C.S., to file an amended inventory. Bateman answered contending that the County Court lacked such jurisdiction over an independent executor. The County Court overruled this objection and, after a hearing, ordered Bateman to amend the original inventory within twenty days. Bateman appealed from that order. We hold that a County Court cannot, pursuant to Sec. 258 of the Probate Code, require an amended inventory from an independent executor.

Independent Administrations are provided for by the first sentence of Sec. 145 of the Probate Code:

“Any person capable of making a will may provide in his will that no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will, and the return of an inventory, ap-praisement, and list of claims of his estate.”

The purpose of this restraint upon the County Court is to free an estate of often onerous and expensive judicial supervision. Corpus Christi Bank and Trust v. Alice National Bank, 444 S.W.2d 632, 634 (Tex.Sup.1969). This freedom from judicial supervision is not, however, complete. The second sentence of Sec. 145 is as follows:

“ * * * When such a will has been probated, and the inventory, appraisement, and list aforesaid has been filed by the executor and approved by the court, as long as the estate is represented by the independent executor, further action of any nature shall not be had in the court except where this Code specifically and explicitly provides for some action in the court.” (Emphasis added.)

See Woodward, Developments in the Law of Independent Administrations, 37 Texas L.Rev. 828, 835 (1959).

Appellee contends that the County Court’s power to require an amended inventory from an independent executor is “specifically and explicitly” provided by Sec. 258 of the Probate Code. This section provides that any person interested in an estate who deems an inventory erroneous or unjust may cause the representative to appear before the court. If the court is satisfied that the inventory is erroneous or unjust, it shall enter an order specifying the corrections to be made.

Sec. 3(aa), Texas Probate Code, 17A V.T. C.S. (1957), is applicable to the question of whether “representative” includes an independent executor. This section reads as follows:

“ ‘Personal representative’ or ‘Representative’ includes executor, independent executor, * * *. The Inclusion of independent executors herein shall not be held to subject such representatives to control of the courts in probate matters with respect to settlement of estates except as expressly provided by law.”

Thus Sec. 258 of the Probate Code will “specifically and explicitly” control an independent executor unless the requirement of an amended inventory is a probate matter with respect to the settlement of the estate. See Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 896 (1898).

Appellant relies on Gonzales v. Gonzales, 309 S.W.2d 111 (Tex.Civ.App., Fort Worth, 1958, no writ), holding that there was no basis upon which the probate court could require an accounting from an independent executrix. In that case it was stated “(t)here was no intimation that the executrix was not carrying out faithfully the provisions of the will.” Gonzales v. Gonzales, supra, 113. Appellee would distinguish the case at bar by pointing to the evidence of omissions from the original inventory as such a basis. The issue, however, goes beyond the existence of error or wrongful acts on the part of the executor. It is whether the action of the County Court relates to the settlement of the estate. Secs. 3(aa) and 145 of the Texas Probate Code, 17A V.T.C.S.; Gonzales v. Gonzales, supra, 113.

The District Court, and not the Probate Court, has jurisdiction of a suit against an independent executor for an accounting or partition. Toplitsky v. Toplitsky, 282 S.W.2d 254, 256 (Tex.Civ.App., Galveston, 1955, writ ref’d. n. r. e.); Carter v. Brady, 423 S.W.2d 946, 951, 952 (Tex.Civ.App., San Antonio, 1967, writ ref’d., n. r. e.). Therefore, it is the province of a District Court and not the Probate Court to call an independent executor to account. O’Connor v. O’Connor, 320 S.W.2d 384, 389 (Tex.Civ.App., Dallas, 1959, writ dism’d). The District Court’s power is based on its general equity jurisdiction. O’Connor v. O’Connor, supra; Jerrard v. McKenzie, 61 Tex. 40, 44 (1884). The probate court’s lack of jurisdiction is based on the interference of a court-ordered accounting with the settlement of an estate. Appellee contends that this jurisdiction division was altered by the amendments to Art. V, Sec. 8 of the Texas Constitution and Sec. 5 of the Texas Probate Code. We disagree. Sec. 145 of the Probate Code controls the scope of the newly amended Sec. 5. Burke v. Satterfield, Tex., 525 S.W.2d 950 (1975). The general purpose of Sec. 145 of the Texas Probate Code is to free the independent executor from the control of the court, except where the Code specifically and explicitly provides otherwise. Bunting v. Pearson, 430 S.W.2d 470, 473 (Tex.Sup.1968).

There has been no case cited nor have we found a case which holds that a County Court’s actions pursuant to Sec. 258 of the Probate Code would or would not interfere with the settlement of an estate by an independent executor. However, cases holding other code sections inapplicable to an independent administration are helpful by analogy. A Probate Court has no jurisdiction to remove an independent executor pursuant to Sec. 222 of the Texas Probate Code, unless he is first required to post bond and fails to do so. Bell v. Still, 389 S.W.2d 605, 607 (Tex.Civ.App., Waco, 1965). This opinion was adopted by our Supreme Court at 403 S.W.2d 353, 354 (Tex.Sup.1966). Sec. 132(a) of the Texas Probate Code does not give the Probate Court authority to order a temporary administrator to take over the assets of an estate from an independent executor. Corpus Christi Bank and Trust v. Alice National Bank, 444 S.W.2d 632, 637 (Tex.Sup.1969). The procedures for establishing claims against an estate, set forth in Sections 309, 310 and 313 of the Probate Code, are not applicable when the estate is under independent administration. Bunting v. Pearson, supra.

While these cases deal with different provisions of the Probate Code, they have a common rationale; the Probate Court cannot interfere with the settlement of an estate by an independent executor unless the Probate Code specifically and explicitly so provides. Tex.Prob.Code, 17A V.T.C.S. Sec. 145 (1957). We hold that the application of the requirements of Sec. 258 of the Texas Probate Code to the instant case would constitute an unauthorized interference.

Since the County Court was without jurisdiction to render the order appealed from, this Court is without jurisdiction. Felton v. Poyner, 156 S.W.2d 277, 278 (Tex.Civ.App., Dallas, 1941, no writ). Thus we do not reach appellant’s second point.

The judgment of the County Court is reversed and judgment here rendered for dismissal of the complaint for want of jurisdiction.


author: McKAY, Justice.

text:
    Bob LINDER et ux., Appellants, v. CITIZENS STATE BANK OF MALAKOFF, TEXAS, Appellee.
    No. 829.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 11, 1975.
    Rehearing Denied Oct. 16, 1975.

      Kurt Philipps, Morgan, Shumpert, Huff, Philipps, Mosley & Co., Kaufman, for appellants.
    Melvin G. Bateman, Moore, Bateman & George, Athens, for appellee.
   McKAY, Justice.

This is an appeal from a judgment notwithstanding the verdict. Appellants brought this suit against Citizens State Bank of Malakoff alleging breach of a fiduciary relationship. Appellant also alleged that Appellee was negligent in disbursing more money than was due to the general contractor who was building a house for Appellant, and that Appellee exerted undue influence on Appellant. The trial court refused to submit the case to the jury on the negligence and undue influence allegations, but did submit issues on fiduciary relationship, and the jury found for Appellants on a breach of a fiduciary duty and found damages at $8,000.00, the amount necessary to complete Appellant’s house in excess of the contract price. Appellee filed a motion for judgment notwithstanding the verdict, which was granted by the Court. Appellants have appealed from the Judgment N.O.V.

Appellants complain in Point One that the trial court erred in granting Appellee’s motion for judgment notwithstanding the verdict.

Rule 301, T.R.C.P., provides:

“The judgment of the court shall conform to the * * * verdict * * *. Provided, that upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and * * disregard any Special Issue Jury Finding that has no support in the evidence.”

In acting upon a motion for judgment notwithstanding the verdict all testimony must be considered in a light most favorable to the party against whom the motion is sought, and every reasonable in-tendment deducible from the evidence is to be indulged in such party’s favor, and to sustain the action of the trial court in granting the motion it must be determined that there is no evidence with probative force upon which the jury could have made the findings relied upon. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952).

However, where, “Under no view of the pleadings and evidence, the plaintiff is entitled to recover, the submission of the issues and the findings of the jury are immaterial, and may be disregarded by the court.” Vogel v. Allen, 118 Tex. 196, 13 S.W.2d 340 (Comm. of App., 1929). Any finding made by a jury on an issue which is not controlling may be disregarded by the trial court. Whittenburg v. Miller, 139 Tex. 586, 164 S.W.2d 497 (1942).

A recitation of the facts in some detail is necessary. Appellants in 1972 decided to build a new house on a lot next to their residence on Cedar Creek Lake. Appellant Linder was engaged in the trucking business and also operated a building materials and supply store. An occasional customer at Linder’s store, Brock Engle, was chosen to build the house, and Engle prepared plans and specifications. On May 4, 1972, at Engle’s suggestion, Linder met with Nat Ryan, Vice President of Citizens State Bank, and the conversation between Linder and Ryan serves as the basis of Appellant’s cause of action.

At this meeting Linder, according to his testimony, requested Ryan to explain how interim financing was done, and Ryan told him (1) that the amount of the loan for interim financing depends upon the commitment letter from the one doing the permanent financing, and that the First National Bank of Corsicana had made a commitment of $34,000 for permanent financing, (2) that 20% of the funds would be retained until completion and closing, (3) that as to the remaining 80%, the usual procedure is for the contractor to make three draws, and as progress is made on the house, it is inspected regularly before any advances are made, and that the first draw is for the foundation, the second for the “dry in”, and the third being the “trim out”, and the remaining 20% retained until completion, (4) that the contractor is required to open an account at the bank and advances are deposited therein and the bank monitors contractor’s checks to see that the money is used on the house, and (5) that the bank watches closely and inspects regularly and there is no way for the contractor to get ahead of the bank. Linder testified that he had no prior knowledge of interim financing and that as a result of this conversation he felt confident no problems would arise concerning interim financing.

A mechanic’s lien note was executed by Linder to Engle for $35,000, and on June 2, 1972, Appellee received the commitment letter from First National, Corsicana, for $34,000 for permanent financing.

Construction began on the house, and on June 29, 1972, Linder had a brief conversation with Ryan at the construction site while Ryan was making an inspection. On June 9th Engle and Linder executed a “cost-plus 8%” written contract because Linder wanted to supply much of the materials and to do as much of the work as he could to reduce the cost. Subsequently, Linder and Engle executed a “flat dollar” contract (also called “turn key”) for the construction of the house for $34,000.

Linder testified that he next saw Ryan in late July when Ryan was making another inspection, and Ryan reported that Engle had drawn approximately $15,000, and that there was a shortage of brick which was unusual and required a variation from the three-draw system. Linder said he had never been asked to approve any advance made by the bank.

On August 4, 1972, according to Linder, he talked by telephone with Eddie Garrison, President of the bank, and Linder told Garrison that Engle owed Linder's store $2,000 for materials and had not paid the bill and he was worried that Engle was writing hot checks or not paying his bills. On September 12, 1972, Linder again talked to Garrison by telephone and told him Engle’s unpaid bill at Linder’s store was $4,000 and he was becoming more concerned. Garrison reported that $17,000 had been advanced to Engle up to that time.

Between September 12 and 25 Linder again talked with Ryan and told him some of the subcontractors were complaining about hot checks and slow payment.

On September 25,1972, Linder again telephoned Garrison and reported that Engle’s bill at Linder’s store was now $6,000, but, Linder testified, Garrison told him not to worry because Engle had to pay for all materials before closing out. Garrison reported that $18,785 had been advanced and that Engle could only draw another $2,900 before closing.

Linder further testified that in late October he heard that Engle had left town, and on October 24th or 25th Garrison informed Linder that the bank had ordered work on Linder’s house “shut down” and that Linder could either complete the house himself or the bank would foreclose, and that $27,200 had been advanced to Engle and $6,800 was still retained by the bank, and that he had unpaid bills on the house amounting to $7,122.

On November 2, 1972, Linder met with Engle and Ed Reichelt, attorney for the bank, and Engle said he would have to abandon the construction of the house, and Reichelt told Linder that he, Linder, would have to complete the house or face foreclosure. At that time Linder testified that there was $9,000 in unpaid bills outstanding and that the cost to complete the house was an additional $9,000. Linder borrowed $10,-000 from a personal friend and proceeded to complete construction of the house. He testified that the total cost to complete the house per the terms of the contract was $47,000 which was $12,113.77 over the contract price.

Various exhibits were introduced showing a list of bills paid during construction, numerous defects in construction and portions of the house left unfinished at the time Engle abandoned the construction of the house.

Linder testified that as a result of his conversation with Ryan that he relied on Appellee bank to supervise the payment of materialmen, bills for supplies, and the employees of Engle, and that he relied on the statements of Ryan and Garrison concerning interim financing and especially the statement that there was no way for the builder to get ahead of the bank.

On cross-examination Linder testified that he had had no previous contact with Appellee bank prior to May 4, 1972, that he knew he could have created a joint account with Engle, and that the bank was not a party to the mechanic’s and materialmen’s lien note and contract. He further testified that he knew of the assignment of the note and contract to the bank, that Ryan inspected the house weekly while under construction, and that the bank never told him specifically that it was handling the interim financing for his benefit. He said it was not unreasonable for the bank to threaten foreclosure, and that the bank was not a party to the subsequent contracts of June 9 and July 6 between him and Engle.

Appellants argue that the determination of whether facts exist which would create a confidential or fiduciary relationship is for the jury, citing Tuck v. Miller, 483 S.W.2d 898 (Tex.Civ.App., Austin, 1972, ref., n. r. e.) and MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334 (1944). Appellant also maintains that a relationship of trust and confidence may be shown to arise informally and for purely personal relationships, citing Thigpen v. Locke, 363 S.W.2d 247 (Tex., 1963), and that such informal relationships include moral, social, domestic or merely personal ones where one person trusts and relies upon another, citing Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951).

All of the above cited eases are constructive trust cases, and it has been held in numerous cases, including Thigpen v. Locke, and Fitz-Gerald v. Hull, that for a constructive trust to arise there must be a fiduciary relationship before, and apart from, the agreement made the basis of the suit. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962); Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). This proposition was reaffirmed in Consolidated Gas & Equipment Co. of America v. Thompson, 405 S.W.2d 333 (Tex., 1966), and by the more recent case of Tyra v. Woodson, 495 S.W.2d 211 (Tex., 1973).

As pointed out in Consolidated Gas fiduciary relationships usually arise in cases of attorney and client, partners, parent and child and joint ventures, but they may arise from “moral, social, domestic or purely personal” relationships. Thigpen v. Locke, supra. But in these informal relationships there must have been a previous relationship which placed the parties in a position of confidence and trust. Consolidated Gas & Equipment Co. v. Thompson, supra. The actual relationship between the parties must be examined to determine whether there was such a confidential, fiduciary or informal relationship so as to warrant the erection of a constructive trust. The disappointment of a mere expectation alone does not give rise to a constructive trust. 76 Am.Jur.2d Trusts, Sec. 226.

In the instant case there was no previous relationship between Appellant Linder and Appellee bank. Linder had never had any business transaction with Appellee — not even a deposit or an account. After Engle assigned Linder’s note to the bank Linder then developed a relationship which gave rise to this suit.

Appellant did not allege Appellee was guilty of fraud, or was unjustly enriched, but, in effect, alleged and endeavored to prove that Appellee bank failed to perform an agreement or to carry out a promise, and in our opinion, such does not give rise to a constructive trust. 76 Am. Jur.2d Trusts, Sec. 224.

The record fails to show that Appellant did not get what he paid for. There is no proof in the record of the value of the house at the time Engle abandoned the project. It seems unquestioned that Appellants would have a cause of action for breach of contract against Engle, the contractor, but he chose instead to attempt to hold the Appellee liable because it failed to advance the funds as promised.

It is elementary that for a plaintiff to recover damages from a defendant, the plaintiff must prove that the alleged wrongful conduct of the defendant caused the alleged damages. Maloney v. Roberts, 32 Tex. 136 (1869); International Great Northern & Co. v. King, 41 S.W.2d 234 (Tex.Comm.App., 1931, holding approved); Missouri, K & T Ry. Co. of Texas v. Raney, 44 Tex.Civ.App. 517, 99 S.W. 589 (1907, err. ref.); LeBlanc, Inc. v. Gulf Bitulithic Company, 412 S.W.2d 86 (Tex.Civ.App., Tyler, 1967, ref., n. r. e.). Assuming, arguendo, that a fiduciary relationship did exist in this case, there is no evidence in the record that the alleged breach of said relationship by Appellee caused the damages sought by Appellant. On the contrary, the record shows that all money advanced by the Appellee was used to pay for the construction of Appellant’s house. We are of the opinion that the contractor simply underbid the cost of the house and that said act of the contractor was the sole cause of Appellant’s damage.

Considering the evidence in a light most favorable to Appellants, and indulging every reasonable intendment deducible from such evidence, we are of the opinion that the record before us does not reveal any fiduciary relationship which ripened into a constructive trust, nor that Appellee caused Appellant’s damage. We hold that a directed verdict would have been proper. Appellant’s First Point is overruled.

Appellant’s Second Point reads as follows: “The trial court erred in refusing the special issues requested by Appellants.” This point of error is insufficient to direct the attention of this court to any errors complained of in regard to Appellant’s requested issues. City of Nederland v. Callihan, 299 S.W.2d 380 (Tex.Civ.App., Beaumont, 1957, ref., n. r. e.). The point is too general, and it attempts to lump together all special issues which Appellant may have wanted the court to submit without setting them out particularly and separately. Enlow v. Brown, 357 S.W.2d 608 (Tex.Civ.App., Dallas, 1962, n. w. h.). The point is multifarious and general in nature, and, therefore, does not require our consideration. Nutter v. Dearing, 400 S.W.2d 346 (Tex.Civ.App., Dallas, 1966, ref., n. r. e., 402 S.W.2d 889); Green v. Maxwell, 423 S.W.2d 384 (Tex.Civ.App., Houston, 1968, ref., n. r. e.); Yarber v. Pennell, 443 S.W.2d 382 (Tex.Civ.App., Dallas, 1969, ref., n. r. e.); Ritter v. Kendrick, 482 S.W.2d 369 (Tex.Civ.App., Austin, 1972, n. w. h.); Terry v. Buttercup Oil Corp., 487 S.W.2d 169 (Tex.Civ.App., San Antonio, 1972, ref., n. r. e.); Rule 418 T.R.C.P.

Appellant’s Second Point is overruled.

Judgment of the trial court is affirmed.


author: PER CURIAM

text:
    Dr. M. J. BUCHELE et al., Appellants, v. Earl A. WOODS et al., Appellees.
    No. 879.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 11, 1975.

      Doren R. Eskew, Eskew, Brady & Wom-ack, Austin, for appellants.
    Ramsey, Ramsey & Smith, San Augustine, Cox, Pakenham & Roady, Houston, Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, Whitworth <& Whitworth, Jasper, James A. Doherty, San Augustine, for appellees.
   PER CURIAM

This matter is before this court on Motions to Dismiss by all parties below except Dr. M. J. Buchele, Thurman Bridges, John Oglesbee, Jr., B. J. Butts and Robert Baker, who purport to appeal from an Agreed Judgment.

The suit was instituted by Woods, et al., taxpayers in the San Augustine Independent School District. The defendants, named in their representative and individual capacities, were the members of the Board of Trustees and the members of the Board of Equalization. Plaintiffs sought to enjoin the School District from putting into effect an allegedly unlawful scheme of taxation for the year 1974.

Before the entry of the Agreed Judgment, Porter Halbert, Dr. N. T. Bennett and Dr. J. M. Martin were elected to the Board of Trustees. The new Board passed a resolution agreeing to a compromise settlement of the litigation on April 17, 1975, by a 4-to-3 vote. The Agreed Judgment recites as follows: that it had been made known to the court that the Board of Trustees by a majority vote accepted the settlement proposal attached to the Judgment; that Bennett and Martin were dismissed as plaintiffs and substituted as defendants; and that Butts and Baker, members of a now-adjourned Board of Equalization, had been nonsuited and were dismissed as defendants. Buchele, Bridges and Oglesbee, individually and as members of the Board of Trustees, attempted to appeal from the Agreed Judgment. Butts and Baker, individually and as former members of the Board of Equalization, have also attempted to appeal.

Motions to dismiss appeal were filed by the San Augustine Independent School District, purporting to act by a majority of its Board of Trustees, and Earl Woods, et al., purporting to represent all plaintiffs below. Movants contend that Buchele, Bridges and Oglesbee lack standing to perfect the appeal because they constitute nothing more than a minority of the Board of Trustees. The motions also stated that Butts and Baker, against whom a nonsuit was taken, have no standing because they are no longer members of the Board of Equalization.

Appellants contend that Buchele, Bridges and Oglesbee were authorized to perfect an appeal from the Agreed Judgment because they actually constitute the “qualified” majority of the seven-member Board of Trustees. They argue that two of the four members who voted to accept the compromise made the basis of the Agreed Judgment were disqualified from voting on the Agreed Judgment. We cannot agree with Appellants’ contention. The question of whether the two members who are needed to constitute the majority of the Board were disqualified was not raised in the trial court. That question being one of fact must necessarily be raised in the trial court and cannot be raised for the first time in the appellate court. Kent v. Smith, 410 S.W.2d 833, 838 (Tex.Civ.App.—Tyler, 1967, n. w. h.). Therefore, the question of whether some of the trustees were disqualified is not properly before this court; thus, Appellants may not seek any relief on that ground. Since the judgment recites that the compromise settlement and Agreed Judgment were accepted by a majority vote of the Board of Trustees and that the Judgment was approved by the attorney representing the School District, Appellants’ attack on the Judgment in the appellate court is futile, and as a result Appellants have no standing to perfect an appeal from the judgment.

Appellants next contend that since they were named as individuals as well as in their representative capacities they have standing to bring the appeal as individually-named defendants. While it is normally true that a party of record is entitled to appellate review, there is the additional requirement that a party’s own interest must be prejudiced by the decision before he has standing to appeal. Van's Ballroom v. Texas, 385 S.W.2d 623, 624 (Tex.Civ.App.—Austin, 1964, n. w. h.). Here Appellants have not been aggrieved by the Judgment in their individual capacities. The Agreed Judgment voided the 1974 tax roll and directed the San Augustine Independent School District to prepare a new one pursuant to the plan set out in the Judgment. Appellants were not named as individuals by the Judgment and no order was entered against them as such. Thus, Appellants have not been ordered to do or refrain from doing anything in their individual capacities. Lacking the necessary requirement of individual prejudice, the Appellants have no standing to appeal.

Furthermore, Appellants lack standing in that the San Augustine Board of Trustees in their representative capacity was the true party defendant in interest. The trustees of an independent school district constitute a body corporate and in the name of the school district may sue or be sued. Tex.Educ.Code, Sec. 23.26(a). The Board of Trustees being a body corporate, the members of that Board can perform no valid act except as a body at meetings properly convened. Toyah Independent School District v. Pecos-Barstow Independent School District, 466 S.W.2d 377, 380 (Tex.Civ.App.—San Antonio, 1971, n. w. h.). The sole relief sought by the plaintiffs was to void the 1974 tax roll and substitute a new tax plan. The Appellants in their individual capacity lacked any authority to carry out any taxing plan. Thus, the Board itself in its representative capacity was the sole defendant in interest. The Board did not appeal the entry of the Agreed Judgment, and Appellants as individuals cannot appeal on behalf of that Board. Manning v. State, 423 S.W.2d 406, 409 (Tex.Civ.App.—Austin, 1967, writ ref’d n. r. e.).

Appellants contend that Butts and Baker have standing both as former representatives of the Board of Equalization and as individuals. We disagree. Persons have no appealable interest in matters involving their representative capacity after their removal or the expiration of their authority. Fortson v. Golden State Mutual Life Insurance Co., 398 S.W.2d 437, 438 (Tex.Civ.App.—Houston, 1966, n. w. h.). Further, Butts and Baker cannot appeal as individuals because, having sought no affirmative relief, and having been nonsuited pursuant to Rule 164, T.R.C.P., they were no longer parties to the suit and could not perfect an appeal. See Thumann v. Cooper Land Co., 405 S.W.2d 791, 793 (Tex.Civ.App.—Eastland, 1966, n. w. h.).

Lastly, Appellants contend that by failure to file the motions to dismiss appeal within 30 days after the filing of the transcript that Woods, et al., and the Board of Trustees have waived any objections contained therein under Rules 404 and 405, T.R.C.P. This contention is without merit. Rule 404 concerns motions relating to infor-malities in the manner of bringing a case into a Court of Civil Appeals. Said rule concerns motions which are procedural in nature, e. g., motions to strike statement of facts on grounds that statement was not approved by the trial court, Wright v. Phillips, 353 S.W.2d 517 (Tex.Civ.App.—Beaumont, 1962, writ ref’d n. r. e.); or motion to dismiss on grounds of defects of substance or form in an appeal bond, Pfeffer v. Meissner, 286 S.W.2d 241 (Tex.Civ.App.—Galveston, 1956, writ ref’d n. r. e.). Further, Rule 405 applies to motions to dismiss for want of jurisdiction and requires such motions to be filed within the 30-day period but goes on to say, “ * * * provided, however, if made afterwards they may be entertained by the court upon such terms as the court may deem just and proper.” Rule 404 does not apply in this case and Rule 405, if applicable, does not preclude our consideration of said motions.

The Motions to Dismiss Appeal are granted, and the appeal is dismissed.


author: OSBORN, Justice.

text:
    GOODPASTURE, INC., Appellant, v. S & J FARMS, INC., Appellee.
    No. 6449.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 17, 1975.

      McGowan, McGowan & Hale, Bill McGowan, Brownfield, for appellant.
    Paul New, Denver City, for appellee.
   OPINION

OSBORN, Justice.

This case results from damage to a peanut crop which allegedly was caused by the improper application of a herbicide. The jury found that the contractor who sold and applied the herbicide made application of an excessive amount of Planavin on Appellee’s peanut crop, and that this was negligence and a proximate cause of the damages found by the jury, but the jury found no negligence upon the part of Shell Chemical Company, the manufacturer of the product. Based upon such findings, the trial Court entered judgment against the Appellant. We affirm.

Several years prior to 1971, Shell Chemical Company manufactured and sold a herbicide called Planavin for use in weed control on cotton and soybean farms. In 1971, the product was cleared for use in raising peanuts. Prior to that time, Sam Oliver, as operator of S & J Farms, Inc., had actually used this herbicide on peanut crops by use of his own farm equipment in spraying the herbicide on the farm land while planting his crop.

At a meeting in the spring of 1971, a Shell representative advised West Texas area farmers concerning the use of Plana-vin and Mr. Oliver was told how to use this herbicide when planting peanuts. He subsequently contacted Appellant, who both sold and applied the product, and requested that they apply one pint per acre on a 55-acre tract where he planned to raise peanuts. The Planavin, together with a liquid fertilizer, was sprayed on the 55-acre tract on April 25, 1971, by Appellant’s employees using Appellant’s own equipment. Mr. Oliver then started running his harrow over the tract in order to incorporate the herbicide into the soil at the prescribed depth of an inch and a half to two inches. He then put a lister in the field and bedded the land and listed into rows. He planted his peanuts on May 28th with about four inches knocked off the top of the beds and the seed planted below the soil treated with Planavin. He then started to water the field.

During this same planting season, Appel-lee provided the Texas A & M Extension Service at Stephenville, Texas, with a half acre out of his 55-acre tract for their use in raising peanuts under the same conditions as existed for its own crop. In addition, Appellee also planted another 56 acres of peanuts on a nearby farm where Mr. Oliver applied Planavin himself in the manner which he had previously used with his own equipment. His crop on this 56 acres produced 4700 pounds of peanuts per acre, which sold for $300.00 a ton.

By the end of June, Mr. Oliver concluded that the crop on which Appellant had applied Planavin was so damaged from an excessive application of the herbicide that it would be necessary to replant. He replanted in July and eventually made a crop of 700 pounds of peanuts per acre, which sold for $130.00 a ton less than his other crop. Thus, he concluded that he lost 2 tons per acre in production on the 55-acre tract where he had to replant, and incurred the cost of replanting and that this crop brought less per ton than would have been expected.

The jury found no negligence against Shell Chemical Company, but found Appellant made an excessive application of Pla-navin which was negligence and a proximate cause of the crop damage; that the quantity of Planavin in the soil at the time of the damage was in excess of the one pint per acre recommended, and that this was a proximate cause of the damage but not the sole cause; that Appellant applied more than one pint per acre which was negligence and a proximate cause of the damage, and that Appellee’s damages were $33,-930.00. The trial Court entered a take-nothing judgment against Shell Chemical Company and no appeal has been taken from that part of the judgment. Appellant appeals from the judgment against it which was based upon the jury verdict.

The first two points of error attack the jury findings that Appellant made an application of an excessive amount of Pla-navin on Appellee’s peanut crop and that it applied more than one pint of Planavin per acre to Appellee’s land. Certainly there is evidence contrary to such jury findings, particularly the testimony of L. T. Hawkins that he took only 55 pints of Planavin from Appellant’s warehouse for this job and that he only applied 55 pints which was not more than one pint per acre. But in passing on these “no evidence” points of error, this Court must consider only the evidence and inferences tending to support the finding and disregard all evidence and findings to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). Thus, we may not consider any of the testimony of Mr. Hawkins, which Appellant cites in support of its first and second points. In support of the jury finding, there is the testimony of Tommy Barton, an employee of Shell Chemical Company, that his inspection of the crop showed substantial damage and that the results of soil sample test showed up to seven pints per acre of Planavin at the time of its application. Richard Burner, an agronomist, did the soil sample analysis and his tests reflected from six to twelve times too much Planavin in the soil from the surface to a depth of four inches. In addition, Dr. Charles Simpson, from the Texas A. & M. University Experiment Station at Stephen-ville, concluded that the test crop which he was supervising had suffered herbicide effects when he examined the crop and replanted in July, 1971. We cannot say that there is “no evidence” to support the jury’s answers to Special Issues Nos. 2 and 6, and the first two points of error are overruled.

The Third Point of Error contends that the trial Court erred in entering judgment for Appellee because the jury found that the excessive quantity of Planavin in the soil was not the sole proximate cause of the damage to the peanut crop. That issue and answer are as follows:

“ISSUE NO. 3B
“Do you find from a preponderance of the evidence that the excess quantity of Planavin in the soil, if you have so found, was the sole cause of the damage, if any, to the peanut crop?
“Answer ‘We do’ or ‘We do not’.
“Answer: We do not ”

The negative answer is nothing more than a failure of the one having the burden of proof to get an affirmative answer. It is not a finding to the contrary. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966). This issue was apparently one requested by Shell Chemical Company, which with a favorable answer could have prevented a judgment against Shell, had it been found guilty of negligent conduct. There being no finding of negligence upon the part of Shell, this issue became immaterial, and the negative answer by the jury rendered it immaterial as a matter of law. The third point is overruled.

The fourth point contends that the answer to Special Issue No. 4 is against the great weight and preponderance of the evidence. That issue is as follows:

“SPECIAL ISSUE NO. 4
“Do you find from a preponderance of the evidence that the plaintiff allowed an excessive amount of soil, or other debris to accumulate around the base of the peanut crop thereby causing the plants to rot and deteriorate?
“ANSWER YES OR NO
“ANSWER NO ”

In deciding this point, we consider and weigh all the evidence in the record. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Thus, we consider all the evidence that Planavin was the reason for the initial crop damage. In addition, there was testimony from Dr. Robert Berry, a plant pathologist for the Texas Agricultural Extension Service of Texas A. & M. University, that he examined some plants from the Appellee’s farm in late June, 1971, and found the plants to be of fair size with good development for five or six-week-old plants. But he also said: “ * * * there was above the crown area where the lateral branches come off the plant for an inch or so lesions, rotted, decayed areas around the branches of these specimens, which in my opinion was probably a disease situation brought about by what I judged to be soil movement up over this stem tissue that should have been in the air but it was covered.” He admitted that his experience with peanuts was limited and that he ran no tests for herbicide damage. The quoted statement from Dr. Berry being opinion evidence, the jury was not required to accept it even if it was uncontradicted. Sanchez v. Wade, 514 S.W.2d 812 (Tex.Civ.App.—El Paso 1974, no writ). While the evidence was conflicting as to the cause of the crop damage, we cannot say that the jury’s answer to Special Issue No. 4 is against the great weight and preponderance of the evidence. The jury saw the witnesses, considered all the conflicting theories, and it was their privilege to pass upon the qualifications and credibility of each witness. The Fourth Point of Error is overruled.

The Appellant next makes an insufficient evidence attack upon the answer to Special Issue No. 5 where the jury found that Appellee did incorporate the Planavin into the soil in compliance with directions from Shell Chemical Company. This is an issue upon which Appellant had the burden to obtain a favorable finding in order to obtain an answer to the issues on negligence and proximate cause, which were conditionally submitted. Mr. Oliver was explicit as to the directions given by Mr. Barton, the Shell employee, concerning the application and incorporation of the herbicide. He testified that Mr. Barton’s instructions were followed. He gave detailed information as to the harrowing and listing of the field after the Planavin had been sprayed on the tract. He also indicated that by knocking four inches off the top of the beds the seed would be below the treated soil. He said he got the inch and a half to two inches incorporation that was prescribed. This testimony supported the jury finding, and the answer is not against the great weight of the evidence. The Fifth Point of Error is overruled.

The next two points contend that the jury’s answers to Special Issues Nos. 2 and 6 are against the great weight of the evidence. In considering all the evidence in the record, we find the testimony of Mr. Hawkins that Appellant only applied 55 pints of Planavin which was the quantity charged on the invoices to Appellee. There is also the testimony of Dr. Berry that he did not find any serious problem from the herbicide, but did find some decay on the stem tissues. But there is also evidence from Mr. Barton of crop damage based upon tests which showed a very extensive use of Planavin. These tests were made by an agronomist, who himself testified to the extensive quantities of Planavin found in the soil which he analyzed. In addition, Mr. Oliver testified as to the comparison of his two crops on nearby tracts and the varying results in the one good crop where he knew the amount of Planavin used, and the other crop where Appellant applied the Planavin and where he had to replant the crop. Based upon the entire record, we conclude that the jury’s answers are not against the great weight and preponderance of the evidence, and the Sixth and Seventh Points of Error are overruled.

The next two points of error attack the special issue which submitted the issue of damages. The jury found the difference in the net proceeds from the sale of peanuts based upon what Appellee actually received and what it would have received but for the damage from Planavin. The jury was instructed to consider the market value of the crop, less costs for gathering, preparing and placing the crop on the market, and excluding damage from other causes such as disease. Appellee replanted in an effort to mitigate its damages and the jury properly considered the net market value of the replanted crop in deciding the damage resulting from Planavin to the initial crop. International-Great Northern R. Co. v. Reagan, 36 S.W.2d 564 (Tex.Civ.App.—Waco 1931), aff’d, 121 Tex. 233, 49 S.W.2d 414 (1932). The Eighth and Ninth Points of Error are overruled.

Appellant next complains of the refusal of the trial Court to submit an issue as to whether or not Appellee assumed the risk of loss of production from the land by plowing up the first crop and replanting in July, 1971. The doctrine of assumed risk until recently rejected has dealt with personal injuries in a master-servant relationship which is not applicable in this case. Even if applicable, the issue as proposed did not include all the elements of such a defensive issue. J. & W. Corporation v. Ball, 414 S.W.2d 143 (Tex.1967); Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972); Greenhill, Assumed Risk, 20 Sw.L.J. 1 (1966). The Tenth Point of Error is overruled.

Appellant next complains of the trial Court’s refusal to submit a series of issues which inquired whether Appellee’s conduct in replanting in July, 1971, was negligence and, if so, whether such negligence was a proximate cause of its damages. Being under a duty to mitigate its damage, it appears that Appellee properly replanted its crop even though it was late in the season to begin a new crop. But regardless, any contributory negligence at that time would not be a defense to the cause of action for damages resulting from earlier conduct upon the part of the Appellant at the time of the first planting. In Kerby v. Abilene Christian College, 503 S.W.2d 526 (Tex.1973), the Court said:

“We draw a sharp distinction between negligence contributing to the accident and negligence contributing to the damages sustained. Contributory negligence must have the causal connection with the accident that but for the conduct the accident would not have happened. Negligence that merely increases or adds to the extent of the loss or injury occasioned by another’s negligence is not such contributory n eli gence as will defeat recovery.”

The Eleventh Point of Error is overruled.

Appellant next complains of the trial Court’s failure to submit its requested special issues which inquired whether the method used for preparing the land for planting caused an undue concentration of excessive amounts of Planavin in the seedbed and, if so, whether such conduct was negligence. There was no error in refusing such issues. And an affirmative finding on both issues would not be a defense without a further finding that such negligence was a proximate cause of Appel-lee’s damage, and there was no request for a proximate cause issue. Thus, the issues as requested were not proper. Masterson, Preparation and Submission of Special Issues in Texasf 6 Sw.L.J. 163 (1952). In addition, such request was duplicitous in view of Special Issue No. 5, which inquired if the Planavin was incorporated into the soil in compliance with directions given by Shell Chemical Company. The Twelfth Point of Error is overruled.

The next point of error complains of the error of the trial Court in failing to enter judgment for Appellant based upon its defense of Laches and Stale Demands. Appellee sued Shell Chemical Company on August 28, 1972. The amended petition making Appellant a party was not filed until March 29, 1973. During the summer of 1971, Mr. Oliver advised Appellant of his problems with the initial peanut crop, and in fact its representatives went out and inspected the field where the peanuts were planted. This suit for damages from negligence having been filed within the limitations period, it was not barred by laches or stale demands. The defense was not established as a matter of law, and there being no jury finding to support such defense, the Thirteenth Point of Error is overruled.

The last point of error contends that the trial Court erred in the manner of submitting the case to the jury because the charge constituted a comment on the weight of the evidence, because of a double submission of Special Issues Nos. 2 and 6, and because of the refusal to submit requested defensive issues. We find nothing in the Appellant’s objections to the Court’s charge concerning a comment on the weight of the evidence. Assignment of error number 10 in the motion for new trial, which is germane to this point of error, contains no complaint as to a double submission of the same issue. We have previously passed upon the complaints concerning failure to submit certain requested defensive issues. The last point of error is overruled.

The judgment of the trial Court is affirmed.


author: WARD, Justice.

text:
    Jon Grady DEATON, Appellant, v. B. J. ELLIOTT, Appellee.
    No. 6463.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 17, 1975.

      Glen Williamson, Kermit, for appellant.
    Calvin W. Wesch, Kermit, Trenchard, Davis & Hardwick, Odessa, for appellee.
   OPINION

WARD, Justice.

The plaintiff, Jon Deaton, filed suit seeking a declaratory judgment as to the status of the plaintiff and the defendant regarding an alleged partnership agreement covering a liquor store. The defendant, B. J. Elliott, filed an answer denying the existence of any partnership and by cross-action asserted that he had been granted an option to purchase the liquor store and that he had properly elected to proceed with that purchase. A jury being waived, trial was to the Court which found that no partnership existed between the parties, that the defendant had been granted an option to purchase, and that he had properly exercised the option in his favor to buy the store. The Court ordered the parties to comply with their respective agreements in order to conclude the transaction. Findings of fact and conclusions of law were requested and filed. We affirm the judgment of the trial Court.

The plaintiff operated J C’s Liquor Store in Kermit, Texas, and on November 26, 1974, found his business in financial trouble. On that date, the plaintiff and the defendant entered into a partnership agreement as to the business, the defendant having on that date loaned the business $12,000.00 to cover certain outstanding checks. The business also owed an additional sum of some $23,000.00 on a promissory note payable to a local bank, and that bank was demanding immediate payment or additional security on the loan. On December 9th, the defendant Elliott pledged an oil and gas lease to the bank to reinstate that loan, and at that time, the plaintiff Deaton executed and delivered his promissory note payable to the defendant in the sum of $12,000.00, together with a security agreement covering all assets of the liquor store. Also at that time, the plaintiff granted to the defendant Elliott an option to purchase the liquor store, the option to be exercised prior to January 10, 1975. In the event the option was exercised by the defendant, he agreed he would release the Plaintiff from the $12,000.00 note and would pay all of the balance then due and owing on the note to the bank. According to the defendant Elliott, the option was exercised in proper time, but the plaintiff refused to comply with his agreement to transfer the business. Thereafter, the plaintiff Deaton filed suit asking for declaratory judgment to determine the rights of the parties under the partnership agreement, and requested ancillary temporary injunctive relief to preserve the status quo between the parties. The defendant Elliott then filed answer and denied the partnership and asserted by way of cross-action his exercise of the option to purchase the business, and prayed for transfer and assignment of the business and its assets.

At a final hearing on February 10, 1975, the trial Court determined that the option to purchase the business had been properly and duly exercised by Elliott. The plaintiff Deaton and his wife were ordered to assign to Elliott all their right, title and interest in and to the business, including the inventory, cash in bank, and accounts receivable, as well as surrendering the package store license issued to the business by the Texas Alcoholic Beverage Commission. The Court further ordered that the real property where the liquor store was located was impressed with a lease in favor of Elliott for the unexpired fifty-three months of the original five-year lease. This was done as Deaton had purchased the real estate and then transferred the title to his wife.

By his first point, the plaintiff-Appellant complains of the final judgment rendered on February 10, 1975, because the only issue then before the Court was the determination as to the issuance of a temporary injunction pending a final hearing. To have rendered a final judgment on the merits at the conclusion of a hearing on a temporary injunction would have been unauthorized. Houston Belt & Terminal Railway Company v. Texas and New Orleans Railroad Company, 155 Tex. 407, 289 S.W.2d 217 (1956). However, the record before us discloses that a trial on the merits was had after the parties had announced ready for trial and had waived a jury. No protest is reflected in the record and as far as can be seen the parties agreed to the final disposition on all issues before the Court at the February 10th hearing. The point is overruled as the rendition of an improper final judgment at that time has not been shown. Travelers Insurance Company v. Brown, 402 S.W.2d 500 (Tex.1966).

The plaintiff-Appellant complains in his second point that the trial Court erred in holding that the partnership agreement of November 26th was superseded by the option to purchase agreement of December 9th. The trial Court in its finding of fact number 19 determined that the later option agreement superseded the partnership agreement. If any error, we fail to find where the Appellant was harmed by such a finding. The fact remains that the trial Court determined that the defendant Elliott properly exercised his option to purchase the entire business and thereby terminated the partnership. The error, if any, was harmless and did not cause the rendition of an improper judgment. Rule 434, Tex.R. Civ.P.

The Appellant presents legal and factual insufficiency points regarding Elliott’s exercise of his option to purchase the business. Mr. Elliott testified that he told the plaintiff during the Christmas holidays of 1974 and early in January, 1975, that he wished to purchase the business according to the option agreement of December 9th, and the parties then entered into a discussion whereby the Appellant would become Mr. Elliott’s employee after the changeover in ownership. While Elliott admitted that he had not cancelled the $12,000.00 note given to him by the Appellant, he stated that this was because the Appellant was not performing his agreement to convey the business. We find that the evidence showed the exercise of the option by Mr. Elliott and his readiness and willingness to follow through with the physical transactions and paper work involved in the details of the transfer, but with a refusal as to the transfer on the part of the Appellant. In passing upon these points, we have complied with the rules set forth in Garza v. Alviar, 395 S.W.2d 821 (Tex.1965), and the points are overruled. The evidence was both factually and legally sufficient to sustain the pertinent findings of fact and conclusions of law of the trial Court.

The Court by its judgment impressed a trust on the real estate where the business was located and in effect gave to the defendant a lease on the premises similar to the one originally held by the plain-The plaintiff-Appellant complains that there is no evidence to show that the lease was a part of the assets of J C’s Liquor Store. Contrary to the Appellant’s position, we find evidence whereby the Appellant desired assurance from Mr. Elliott that after the exercise of the option the lease would be taken over by Elliott. Of importance was the action taken by the Appellant, after he refused to comply with the option to purchase, when he purchased the real estate from the original lessor and then reconveyed the property to his wife. This certainly implies his realization that the lease was a part of the business. Not only was the Court justified in finding that the lease was an asset of the business, but it was justified in piercing the attempted subterfuge and in impressing the lease on the premises. tiff.

We have considered all of the points urged by the Appellant and all points are overruled. In light of these points raised, the judgment of the trial Court is affirmed.


author: ELLIS, Chief Justice.

text:
    Jack W. MILLER, Appellant, v. Jess BROWN et al., Appellees.
    No. 8560.
    Court of Civil Appeals of Texas, Amarillo.
    Sept. 22, 1975.
    Rehearing Denied Oct. 20, 1975.

      Underwood, Wilson, Sutton, Berry, Stein & Johnson, A. W. Sorelle III, Amarillo, for appellant.
    Gibbins & Spivey, J. Patrick Hazel, Austin, Gibson, Ochsner, Adkins, Harlan & Hankins, Mac W. Hancock III, Amarillo, for appellees.
   ELLIS, Chief Justice.

In this venue case, defendant Jack W. Miller has appealed from the order of the trial court overruling his plea of privilege to be sued in Randall County, Texas, the county of his residence. Affirmed.

Plaintiffs, Jess Brown and his son Joe W. Brown, brought suit in Castro County, Texas against Jack W. Miller and Castro County, defendants, for personal injuries and damages to a truck which turned over when a Castro County roadway gave way next to a bar ditch then being used by Miller to carry irrigation water in connection with his farming operations. Castro County filed a cross-action for indemnity, or alternatively, contribution against Miller. Miller’s plea of privilege was filed in response to the primary action and to the cross-action. Plaintiffs and cross-plaintiff, Castro County, filed controverting affidavits.

On October 4, 1972, Jess Brown and another person were hauling corn in trucks owned by Joe W. Brown from a field in Castro County. Jess Brown left the field in a truck loaded with an estimated 30,000 pounds of corn and proceeded to a grain elevator some miles distant. Part of the route was along a dirt road constructed and maintained by Castro County pursuant to easements granting the road right of way to the county.

As he approached a grain truck which was returning from the elevator, Jess Brown stopped his truck three or four feet from the right-hand edge of the road surface and turned off the engine. A tract of irrigated farm land owned by appellant abutted the dirt road at the place where Jess Brown stopped his truck. The oncoming truck stopped alongside Jess Brown’s truck and the two drivers talked for a short period of time.

As Jess Brown was about to start his truck engine to proceed to the grain elevator, he felt the road give way beneath the rear of the truck. He started the engine and attempted to get the truck into gear quickly enough to move to firm ground. Jess Brown did not, at the time of the occurrence, know whether he was sinking into mud or slipping off the side of the road. The truck, in fact, slipped or fell into the bar ditch off the right-hand side of the road. The truck turned over on its side spilling much of the corn, injuring Jess Brown, and damaging the truck.

There was testimony that the bar ditch was from four to five feet deep at the place where the accident occurred. The exact depth was not known. The evidence further revealed that weeds which had grown up in the bar ditch obscured from Jess Brown’s view the depth of the bar ditch. It is undisputed that the bar ditch was deepened by Buster Lawrey Construction Company at the request of appellant in late 1970 or early 1971 in order to provide a means to collect irrigation runoff or tailwa-ter which appellant could recirculate for reuse on his farm.

In two points of error appellant contends that appellees failed to plead and prove the necessary venue facts to support any exception to Tex.Rev.Civ.Stat.Ann. art. 1995. By their respective controverting affidavits, appellees, Jess Brown and Joe W. Brown, and Castro County, relied upon subdivisions 9a, 19 and 29a of art. 1995 to sustain venue in Castro County.

No findings of fact or conclusions of law were requested or made in this case. The order of the trial court, therefore, implies all necessary fact findings in support of the order. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939). Notwithstanding this rule, the filing of the plea of privilege placed the burden on the appellees to plead and prove by a preponderance of the evidence the applicability of one of the exceptions to the general rule of art. 1995 to the facts of this case. Collins v. F. M. Equipment Company, 162 Tex. 423, 347 S.W.2d 575 (1961); Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935).

We believe that subdivision 9a of art. 1995 applies to establish venue in the county of suit between plaintiffs and appellant, i. e., that plaintiffs have established a negligence cause of action against appellant, which cause arose from acts committed in Castro County.

To maintain venue under subd. 9a plaintiffs were required to establish: (1) that an act or omission of negligence occurred in the county where suit was filed; (2) that such act or omission was that of appellant Miller, in person, or that of his servant, agent, or representative acting within the scope of his employment; and (3) that Miller’s negligence was the proximate cause of plaintiffs’ injuries.

Appellant, as an owner of land owed a duty not to create an unreasonable risk of harm to persons using the road abutting appellant’s property. Atchison v. Texas & P. Ry. Co., 143 Tex. 466, 186 S.W.2d 228 (1945); Skelly Oil Co. v. Johnston, 151 S.W.2d 863 (Tex.Civ.App.—Amarillo 1941, writ ref’d); Restatement (Second) of Torts § 368 (1965). Appellant breached that duty by excavating the bar ditch alongside the road thereby creating and allowing to remain a dangerous condition to users of the road, whether by his own hand or by the work of an independent contractor.

The evidence further supports a finding of proximate cause which consists of two elements: foreseeability and cause in fact. Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970); Enloe v. Barfield, 422 S.W.2d 905 (Tex.1967). We observe from testimony by appellant that, prior to the accident, he was contacted by the Castro County Commissioners Court and was requested to fill in the ditch. Although appellant testified that he was not certain about the reason for the Commissioners Court’s request, he stated that he did not know of a reason other than the safety of the road. At least from the request made by the Commissioners Court appellant had reason to believe that the excavation posed an unreasonable danger which probably would result in harm to users of the road. Indeed, appellant agreed to fill in the bar ditch, which he had deepened without the consent of the Castro County Commissioners. Appellant had contacted one who would fill in the bar ditch, but who did not fill it in prior to the accident. Although appellant may not have known the precise manner in which the accident would occur, appellant’s testimony reveals that he knew or reasonably should have known that the deepened ditch posed a danger which probably would result in injury if the condition were not eliminated by filling in the deepened bar ditch. Atchison v. Texas & P. Ry. Co., supra.

Jess Brown testified that he felt the back end of his truck slip. Joe Brown stated that upon arriving at the scene of the accident some ten minutes after the accident occurred he observed that the road had caved off. It is reasonable to conclude that the road surface would not have given way but for the excavation and water erosion which took away the support beneath the surface of the road so that it collapsed under the weight of the truck. Plaintiffs need not exclude all possibility that the accident occurred other than as they allege. Plaintiffs need show only that the greater probability is that the deepening of the ditch and the failure of appellant to fill it in caused the truck to overturn. Birmingham v. Gulf Oil Corporation, 516 S.W.2d 914 (Tex.1974); Burlington-Rock Island R. Co. v. Ellison, 140 Tex. 353, 167 S.W.2d 723 (1943). Cause in fact may be established by circumstantial evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); Boddy v. Canteau, 441 S.W.2d 906 (Tex.Civ.App.—San Antonio 1969, writ ref’d n. r. e.). From testimony by appellant and appellee Joe Brown as to the depth of the deepened bar ditch and from testimony by appellant as to the subsequent water erosion, we believe the trial court reasonably could infer that the road was in a weakened condition which would not support the weight of the truck, and that such condition was the cause in fact of the overturning of the truck. We believe the evidence supports a finding by the trial court that plaintiffs established the applicability of subdivision 9a to maintain venue in Castro County.

We have determined that venue in Castro County is proper as to appellant in the primary suit; venue is also proper in Castro County with respect to the cross-action. Suit against a county must be brought in that county under subdivision 19 of art. 1995. Thus, venue in Castro County as to appellee Castro County is proper in the primary suit.

We recognize the general rule of venue that a defendant has the right to be sued in the county of his residence. This general rule applies to cross-defendants as well as to defendants in the primary suit. However, where, as here, venue is proper as to both defendants in the primary suit, venue will be proper in the same county for maintaining all cross-actions arising out of the same transaction having essentially identical issues of law and fact. Jefferson Chemical Co. v. Forney Engineering Co., 466 S.W.2d 361 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ dism’d); Willis v. Contreras, 508 S.W.2d 110 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); Cape Oil Company v. Williams 427 S.W.2d 122 (Tex.Civ.App.—Tyler 1968, no writ).

Since we have held that venue is established in Castro County, we do not reach appellant’s other contentions. Accordingly, appellant’s points of error are overruled, and the order of the trial court overruling appellant’s plea of privilege is affirmed.


author: HALL, Justice.

text:
    William D. OLSON, Appellant, v. SUCCESS MOTIVATION INSTITUTE, INC., Appellee.
    No. 5440.
    Court of Civil Appeals of Texas, Waco.
    Sept. 25, 1975.
    Rehearing Denied Oct. 16, 1975.
    Beard & Kultgen, M. Frank Beard, Waco, for appellant.
    Dunnam, Dunnam & Dunnam, Fred Hor-ner, Waco, for appellee.
   HALL, Justice.

This is a suit upon a foreign judgment. The judgment was obtained by William D. Olson against Success Motivation Institute,' Inc., a Texas Corporation (hereinafter called “SMI”), by default, in the Circuit Court of Columbia County, Wisconsin, on September 2, 1965. It awarded a recovery of $9,934.75.

Olson filed this suit against SMI on January 13, 1967, in a District Court in McLen-nan County, Texas. He pleaded the foreign judgment, alleged that it had not been paid, and prayed for a recovery of the amount then due, alleged to be $9,934.75 and costs. After a hearing on January 8,1975, without a jury, judgment was rendered on February 4, 1975, that Olson take nothing. He appeals. We reverse.

The two grounds pleaded by SMI in defense of this suit, by way of an amended answer, are (1) that the Wisconsin court lacked jurisdiction and the judgment is therefore void; and (2) that the foreign judgment was “barred and incapable of being enforced by virtue of article 272.04 of the Wisconsin laws.” The trial court based its judgment upon both grounds, and filed findings of fact and conclusions of law in support thereof.

Findings and conclusions were made to the effect that the record does not affirmatively show that certain Wisconsin statutes jurisdictional to the suit upon which the foreign judgment is based, including the Wisconsin “long-arm” statute, were complied with; and that, accordingly, the judgment is void. By appropriate points of error, these findings and conclusions are challenged by Olson.

The Wisconsin judgment appears to be a valid, final and subsisting judgment rendered by a court of general jurisdiction. Its introduction into evidence made a prima facie case for appellant, and cast upon SMI the burden of establishing that the Wisconsin Court was without jurisdiction or that the judgment was otherwise void. Garman v. Reynolds, (Tex.Civ.App., Fort Worth, 1955, writ ref.) 284 S.W.2d 262, 264. The fact that SMI filed no answer and made no appearance in the Wisconsin suit does not change the rule on a collateral attack such as this. Mitchim v. Mitchim, (Tex., 1975) 518 S.W.2d 362.

We have carefully searched the record and we find no evidence to support a determination that the Wisconsin court lacked jurisdiction. To the contrary, the only evidence on the question shows that the Wisconsin statutes were complied with. Olson’s complaints about the factual insufficiency of the evidence in these respects are therefore immaterial.

On the trial, the parties stipulated that, at all pertinent times, Article 272.04 of the Statutes of the State of Wisconsin provided in part as follows:

“272.04 Execution, when issued. (1) Upon any judgment of a court of record execution may issue at any time within 5 years after the rendition thereof, and when an execution shall have been so issued and returned unsatisfied in whole or in part other executions may issue at any time upon application of the judgment creditor. But if no execution was issued within said 5 years, or, if application be made by one other than the judgment creditor, execution shall issue only upon leave of the court, in its discretion, upon prior notice to the judgment debtor . . . but no execution shall issue or any proceedings be had upon any judgment after 20 years from the rendition thereof.”

Additionally, the parties stipulated that the foreign judgment was rendered in a court of record, and that no execution has been obtained or attempted upon it.

The trial court expressly found that execution was not issued on the foreign judgment within five years after it was rendered, in keeping with the parties’ stipulation, and then concluded that the judgment, if valid, “is presently barred, dormant and unenforcible by virtue of Article 272.04 of the Wisconsin Statutes and Article [5580] of the Revised Civil Statutes of the State of Texas since no execution was issued within five years after the rendition thereof.”

Insofar as it relates to our problem, Article 5530, Vernon’s Tex.Civ.St., provides as follows:

“Every action upon a judgment or decree rendered in any other State . shall be barred, if by the laws of such State . . . such action would there be barred, and the judgment or decree be incapable of being otherwise enforced there . . . ”

Article 5530 is concerned with, and deals only with, the time the suit is brought on the foreign judgment, and not with the time of the hearing on the suit or the time of rendition of judgment thereon. Ferguson-McKinney Dry Goods Co. v. Garrett, (Tex.Com.App., 1923) 252 S.W. 738, 740; Schluter v. Sell, (Tex.Civ.App., 1946, no writ hist.) 194 S.W.2d 125, 129-130. An action is “commenced,” “prosecuted,” and “brought” in Texas, within the meaning of limitation statutes, when a plaintiff both files his petition and exercises due diligence to have process issued and served on the defendant. Owen v. City of Eastland, 124 Tex. 419, 78 S.W.2d 178, 179 (1935).

The Wisconsin judgment was rendered on September 2, 1965. This suit on the judgment was filed by Olson on January 13, 1967. Six days later, on January 19, 1967, SMI filed its original answer. These facts, undisputed in the record, establish as a matter of law that the requisites set forth in the Owens case, ante, for bringing a suit were met, and no issue is raised by the parties in this regard.

At the time this suit was brought, the foreign judgment was less than 17-months old and was not dormant, barred nor unenforceable under the five-year limitation statute in question. The bringing of suit before the expiration of the statutory period interrupts the running of a statute of limitation. Curtis v. Speck, (Tex.Civ. App., Galveston, 1939, writ ref.) 130 S.W.2d 348, 351. This is the general rule in other jurisdictions as to limitation statutes like Wisconsin Article 272.04. 49 C.J.S. Judgments § 542, pp. 1001-1002; 50 C.J.S. Judgments § 854, p. 428. The cases of Ferguson-McKinney Dry Goods Co. v. Garrett, and Schluter v. Sell, supra, support our conclusion that this is also the rule in Texas as to such statutes. Being the rule in Texas, then, because the record does not show otherwise, it is presumed to be the applicable law in Wisconsin. 1 McCormick & Ray, Texas Law of Evidence 132, § 99 (2d ed., 1956). Accordingly, the running of Wisconsin Article 272.04 was tolled with the filing of this suit, and the foreign judgment is not barred or unenforceable by reason of that statute.

The judgment is reversed, and judgment is here rendered that Olson recover of and from SMI the sum of $9,934.75, with interest thereon at 6% from September 2, 1965, to February 4, 1975.


author: MOORE, Justice.

text:
    Troy HOLDER, Appellant, v. Vivian HOLDER, Appellee.
    No. 822.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 25, 1975.

      L. L. Geren, Bradley & Geren, Groesbeck, for appellant.
    Bert Creel, Tyler, for appellee.
   MOORE, Justice.

This is an appeal from a judgment of the Court of Domestic Relations of Smith County, Texas, holding appellant, Troy Holder, in contempt of court for failure to make child support payments as ordered by that court and awarding Vivian Holder judgment for $7,980.00 delinquent child support payments.

Appellant, Troy Holder, and appellee, Vivian Holder, were formerly husband and wife, being divorced in 1965. Prior to the divorce the parties entered into a property settlement agreement in which appellant agreed to pay the sum of $35 per week for the support of his three minor children. The agreement was incorporated into and made a part of the divorce decree. The suit made the basis of this appeal commenced in April of 1974, when appellee filed an affidavit for contempt against appellant for failure to make the support payments of $35 per week as ordered in the divorce decree. After a trial before the court, sitting without a jury, the court held appellant in contempt for failure to make the child support payments and awarded appellee a $2,000.00 attorney’s fee and ordered appellant confined to jail. The judgment, however, further provided that appellant could purge himself by paying appellee’s attorney’s fees of $2,000.00, plus court costs within a period of thirty days. In addition to holding appellant in contempt the trial court also rendered judgment against appellant in favor of appellee for $7,980.00 for delinquent child support payments. Appellant purged himself of contempt by paying the attorney’s fees and court costs and now appeals contending first that the court erred in holding him in contempt, and secondly, that the court erred in rendering judgment against him in the amount of $7,980.00 for delinquent child support payments.

With regard to appellant’s first contention, it is now settled that the appellate courts of this state are without power by ordinary appeal to review contempt proceedings; the only review that can be had in this instance is by an original proceeding by habeas corpus. Wagner v. Warnasch, 156 Tex. 335, 295 S.W.2d 890, 893 (1956); Padfield v. McInosh, 267 S.W.2d 224, 225 (Tex.Civ.App., Fort Worth 1954, writ dism’d). Consequently, this court is without jurisdiction to review that portion of the judgment holding appellant in contempt and ordering him to jail. Grace v. McCrary, 390 S.W.2d 397, 398 (Tex.Civ.App., Waco 1965, writ dism’d). Appellant’s points of error complaining of this portion of the judgment are, therefore, dismissed.

The only remaining matter left for our consideration is appellant’s contention that the trial court erred in awarding appellee judgment for $7,980.00 for delinquent child support payments. Appellant’s sole contention is that the judgment rendered against him for delinquent support payments is excessive. Appellant stipulated that $1,119.16 was due and owing by him and upon appeal contends that the trial court erred in awarding appellee a judgment for $7,980.00 rather than for $1,119.16. As we view the record the contention is without merit and must be overruled.

At the time of the 1965 divorce decree, appellant and appellee were the parents of three minor children: Wendy Gail Holder born September 8,1949, Sherrie Lynn Holder born October 24, 1950, and Penny Kay Holder born August 30, 1956. Twenty-six weeks after the child support payments were to begin, Wendy Gail Holder married and 33 months later Sherrie Lynn Holder turned 18 years of age. Appellant argues that he was entitled to a Vsrd reduction in the amount of the support payments when Wendy married and to another Vsrd reduction when Sherrie turned 18. Appellant contends that the trial court erred in refusing to give him the benefit of these reductions and consequently he contends judgment is excessive.

Appellant relies on the holding in Ex Parte Williams, 420 S.W.2d 135 (Tex.1967). Generally that case stands for the proposition that the courts are without power to order child support payments after a child marries or reaches the age of 18. The case, however, does not stand for the proposition that the courts are without power to enforce a previous judgment for child support, when the divorce decree initially ordering those payments was a consent judgment. Williams was not a case involving a consent judgment and is therefore distinguishable.

The settlement agreement entered into prior to the 1965 divorce decree recites that Troy Holder “agrees to pay THIRTY-FIVE AND NO/100 ($35.00) DOLLARS a week into the registry of the court for the support and maintenance of said minor children.” There is nothing in the agreement indicating the parties agreed that the $35 per week payment was to be reduced in the event of a child’s marriage or when a child reached the age of 18. The 1965 divorce judgment also recites appellant was to pay $35 per week for the support of “his minor children.” It also fails to provide for a reduction in payments. The settlement agreement was attached to and made a part of the 1965 divorce judgment. In our opinion the 1965 judgment, insofar as it relates to the amount payable for child support, must be construed as a consent judgment. Brady v. Hyman, 230 S.W.2d 342, 343-45 (Tex.Civ.App., San Antonio 1950, no writ). A consent judgment is interpreted like a contract between the parties and is governed by the laws relating to contracts. Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786, 787 (1941); Brady v. Hyman, supra. Consent judgments are, in effect, merely contracts acknowledged in open court and ordered to be recorded, but as such they are binding on the parties as fully as are other judgments. Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234, 239-41 (1961); Akin v. Akin, 417 S.W.2d 882, 885 (Tex.Civ.App., Austin 1967, no writ); Prince v. Frost-Johnson Lumber Company, 250 S.W. 785 (Tex.Civ.App., Beaumont 1923, no writ).

Appellant makes no contention that the settlement agreement or the 1965 consent judgment is ambiguous. The trial court interpreted the consent judgment to mean that appellant consented to pay the sum of $35 per week so long as any of his children were minors under the age of 18. Since neither the settlement agreement nor the 1965 consent decree provided for a reduction in the amount of the weekly payment, we think the consent decree was subject to the interpretation that appellant agreed to pay the sum of $35 per week so long as any of his children were under 18 years. The trial court rendered judgment on that basis and we fail to find error in such ruling.

In conclusion it should be pointed out that while this suit originally commenced as a contempt proceeding, appellant has no point challenging the judgment on the ground that it was not supported by the pleadings. The record reveals that the issue of appellant’s liability on the 1965 consent judgment was before the court. Moreover, appellant pleaded the two- and four-year statute of limitations and the trial court gave appellant the benefit of the four-year statute on all payments more than four years past due. In support of the judgment, it must be presumed that the issue of appellant’s liability under the 1965 consent judgment was tried by consent. Davidson v. McCollum, 427 S.W.2d 358, 360 (Tex.Civ.App., Eastland 1968, no writ); Tex.R.Civ.P. 67.

The judgment of the trial court is affirmed.