author: WARD, Justice.

text:
    EL PASO NATIONAL BANK, as temporary Administrator of the Estate of Mary Ann Spires, Deceased, et al., Appellants, v. Towner S. LEEPER, Appellee.
    No. 6486.
    Court of Civil Appeals of Texas, El Paso.
    June 9, 1976.
    Rehearing Denied July 28, 1976.

      Grambling, Mounce, Deffebaeh, Sims, Hardie & Galatzan, Sam Sparks, El Paso, Jones, Trout, Flygare & Moody, Charles B. Jones, Lubbock, for appellants.
    Calhoun, Morton & Deason, Ronald R. Calhoun, El Paso, for appellee.
   OPINION

WARD, Justice.

Towner S. Leeper sued for attorney’s fees owing to him for representing the Temporary Administrator of the Estate of Mary Ann Spires, Deceased. Appellants, El Paso National Bank, as Temporary Administrator, and American State Bank of Lubbock, as the Independent Executor of the Estate, appealed from a judgment based upon jury findings whereby Appellee recovered from the Appellants in their representative capacities the sum of $20,000.00 as the reasonable value of his legal services and the additional sum of $5,000.00 for the plaintiff’s attorneys’ fees under Tex.Rev.Civ. Stat.Ann. art. 2226. The judgment of the Court below is affirmed.

Mary Ann Spires died in El Paso County on August 9, 1971. An application to probate her will and certain codicils was filed in the Probate Court of El Paso County, and immediately a contest developed regarding a codicil. On September 27, 1971, pending the contest, a temporary administration for the Estate of Mary Ann Spires, Deceased, was established and the El Paso National Bank was appointed Temporary Administrator of the Estate. The order of appointment authorized the El Paso National Bank to prepare and file preliminary tax returns, final Estate and Inheritance Tax Returns on the Estate, and to prepare and file an inventory, appraisement and list of claims. The Bank was further authorized “To employ such attorneys, * * * as may be necessary to accomplish the above and foregoing duties and to pay same from the assets of the estate.” The Appellee was then retained by the El Paso National Bank, in its representative capacity, to perform certain legal services, including the preparation of a Federal Estate Tax Return, the preparation of an Inheritance Tax Return, and the preparation of Fiduciary Income Tax Returns during the pendency of the temporary administration. In December, 1973, the contest regarding the codicil was concluded by settlement. On December 20,1973, the Appellee filed an application for payment of his fees of $20,000.00 and this application was filed with the Clerk of the Probate Court. On the following day, December 21, 1973, the Probate Court established an independent administration for the Estate of Mary Ann Spires and appointed the American State Bank of Lubbock as Independent Executor. It immediately qualified as Executor.

By its first point, the El Paso National Bank complains of the action of the trial Court in entering judgment against it as Temporary Administrator since the undisputed evidence established that the temporary administration was terminated on December 21,1973, because it was on that date that the independent executorship was established. It is that Bank’s contention that after December 21,1973, the Bank no longer represented the Estate of Mary Ann Spires, Deceased, and could not take any action on behalf of that Estate.

When the Appellee filed suit for his attorney’s fees, he sued only the El Paso National Bank, both in its individual and in its representative capacity as the Temporary Administrator. That Bank immediately filed a third-party action against the American State Bank of Lubbock as Independent Executor of the Estate, reciting the appointment and qualification of the Independent Executor as of December 21, 1973, and claimed that the liability for the attorney’s fees of the plaintiff should only be asserted by the plaintiff against the third-party defendant, and, alternatively, that if the El Paso National Bank was liable that it have judgment over against the Lubbock Bank. Thereafter, the plaintiff added the Lubbock Bank as a direct defendant to its claim, and then non-suited the El Paso National Bank in its individual capacity. In its answer, upon which it went to trial, the El Paso National Bank alleged in detail the appointment and qualification of the Lubbock Bank as Independent Executor on December 21, 1973, and it claimed that this caused the legal termination of the temporary administration resulting in its non-liability in any such capacity to the plaintiff. In effect, the El Paso Bank was pleading that it had no legal capacity to be sued or that it was not liable in the capacity in which it was sued as set out in Tex.R. Civ.P. 93(b) and (c). The answer, while not verified, was adequate to raise the defense as the truth of this matter appeared of record. The El Paso Bank, in asserting that it should have been dismissed, points to the transitory nature of a temporary administration pending a will contest; that all powers of the temporary administration must cease upon the appointment and qualification of an Independent Executor; and that the very nature of the independent executorship requires that it succeed to all the rights, powers and duties ever held by the Temporary Administrator. Tex.Prob. Code Ann. § 132(a); Ex parte Lindley, 163 Tex. 301, 354 S.W.2d 364 (1962). It is further pointed out that there can be no power in the Temporary Administrator as there cannot be two full administrations of the same estate existing at the same time. Corpus Christi Bank and Trust v. Alice National Bank, 444 S.W.2d 632 (Tex.1969); King v. King, 230 S.W.2d 335 (Tex.Civ.App.—Amarillo 1950, writ ref’d).

Granted that no power remained to actively administer the Estate, the facts show that the El Paso Bank, at the time the present suit was filed and when judgment was thereafter entered, had neither rendered a final account nor been discharged in its capacity and that it still retained some $16,000.00 in cash belonging to the Estate. Until it finally accounted and secured a final discharge, it could still be sued in its capacity as Temporary Administrator by the Independent Executor for the recovery of those funds. Hill v. Magee, 76 S.W.2d 579 (Tex.Civ.App.—Waco 1934, writ ref’d). It was sued for those funds by a creditor on a debt admittedly created, and the trial Court was not in error when it refused to dismiss that defendant where it adequately protected it in the final judgment. The trial Court ordered all funds remaining in the temporary administration be applied on the Appellee’s judgment, and, as to any balance, it honored the prayer of the Temporary Administrator with judgment over against the Independent Executor.

Incidental arguments presented by the Appellants that the Appellee should have presented a properly verified claim to the Appellants in their respective capacities as a predicate for filing suit are rejected. The claim asserted accrued against the Estate after the appointment of the El Paso Bank as Temporary Administrator, and was contracted by it for the Estate. Presentment of this type of claim is not required even with an administration. Tex.Prob. Code Ann. § 317(d); Kitchens v. Culhane, 398 S.W.2d 165 (Tex.Civ.App.—San Antonio 1965, writ ref’d n.r.e.). As to the Independent Executor, no claim need be legally presented as a predicate to suit. Bunting v. Pearson, 430 S.W.2d 470 (Tex.1968). Thereafter, the necessary authority to pay this disputed claim arose from the judgment rendered by the District Court.

Appellants complain that the trial Court erred in awarding attorney’s fees for Mr. Leeper’s own attorney in the prosecution of the present action as there was no evidence of presentment as required under Tex.Rev.Civ.Stat.Ann. art. 2226. To recover the fees under this Statute, the burden was on the plaintiff to plead and prove presentment of the claim to the debtor and a failure to pay for thirty days thereafter. A specific demand or presentment must be made and the mere filing of suit does not satisfy the Statute. El Paso Moulding and Manufacturing Co., Inc. v. Southwest Forest Industries, Inc., 492 S.W.2d 331 (Tex.Civ.App.—El Paso 1973, writ ref’d n.r.e.). In the latter part of 1973, the El Paso Bank became aware that the litigation regarding the codicil might be settled and called upon Mr. Leeper to present a bill or claim for his services which he had rendered the Temporary Administrator. Acting on this, on December 20, 1973, a claim detailed as to time spent and requesting a fee of $20,000.00 was filed by Leeper in the office of the County Clerk and in the temporary administration file. This, while defective in form as to claims made under Tex.Prob.Code Ann. § 301, was a sufficient demand or presentment under Article 2226. Insofar as “presentment” to an administrator is required of probate claims, Tex.Prob.Code Ann. § 308 permits the filing with the Clerk as an effective agent for the administrator. Texas Estate Administration, § 11.6, at 390. Since Article 2226, for attorney’s fee purposes, permits the presentment to a duly authorized agent, the requirement of the latter Statute was met. It was not until the next day that the Independent Executor qualified and succeeded the Temporary Administrator, and that qualification carried with it the duty to pay all proper expenses theretofore incurred in the administration.

Additionally, on March 6,1974, the attorney of record for Mr. Leeper demanded of the El Paso Bank that the fee of $20,000.00 be paid. A copy of this claim was likewise sent to the attorney for the Lubbock Bank. While the form of this demand is also subject to criticism, it is held sufficient. No particular form of presentment for attorney’s fees is required. Huff v. Fidelity Union Life Insurance Company, 158 Tex. 433, 312 S.W.2d 493 (1958). Testimony was presented that a hearing was held in the Probate Court where the attorney’s fee was apparently placed in issue and all parties were present, but the matter was never disposed of. All of this evidence satisfies the requirement of Article 2226, and the points questioning presentment are overruled.

The primary attack made by the Appellants concerns the award of $20,000.00 to the Appellee for his fees. No contention is made by the Appellants that the Appellee was not entitled to a fee, but the complaint is that it is excessive in that the amount would not have been as great had it not been for each of the asserted errors. These errors question the legal and factual sufficiency of the evidence that support the verdict and judgment; complain that the valuation evidence introduced on behalf of the Appellee as to the services rendered concern services much broader than authorized by either the order of the Probate Court or by the agreement of the Temporary Administrator; and, finally, that the instruction of the Court concerning the special issue on the reasonable value of the attorney’s fees limited the jury to consider matters which were not limited by the witnesses when they gave their opinion as to the reasonable value of the plaintiff’s services.

When the Appellee was hired by the El Paso Bank to represent the Estate in matters pertaining to Texas assets and matters regarding Federal Estate Taxes, Federal Income Taxes and State of Texas Inheritance Taxes, that Bank at the same time designated and hired William Mounce as the attorney for matters of the Estate in New Mexico. Thereafter, the Appellee’s duties were changed by agreement to the effect that Mr. Mounce would also handle all contested matters regarding the actions of the Temporary Administrator and all other matters except those tax matters specifically placed with the Appellee. Resulting work performed by Mr. Mounce was admittedly large and responsible as every action thereafter taken by the Temporary Administrator was questioned or contested by antagonistic heirs. The fee charged by Mr. Mounce was $18,500.00 and its necessity and reasonableness were conceded by all the parties.

Appellee’s testimony was to the effect that the gross value of the Estate exceeded one and a half million dollars, that the recommended minimum fee schedule of the State Bar of Texas, which was introduced into evidence, suggested a fee for an estate of comparable size as three percent, or about $45,000.00, and that, based on the part of the work performed by the Appellee to the total work that was involved, $20,-000.00 was a reasonable fee for his services. Mr. Leeper testified that the factors considered by him in presenting his bill were the complexity of the problems present, his responsibility toward the Estate, and the value gained to the Estate because of his services as well as his time spent. Two attorneys, who qualified as experts, supported his claim.

On the other hand, the Appellants pointed to delays which they claim Mr. Leeper caused the Estate; that all information needed in filing the returns were furnished by the Temporary Administrator in the form of computer print-out sheets, and that from this information little additional work needed to be performed by the Appellee; that most of the time which Mr. Leeper and his associate spent was worthless and wasted effort; and that all of the real work on all the complicated matters was performed by the El Paso Bank and Mr. Mounee. The Appellants, by their cross examination, attempted to show that the Appellee and his associate were really charging on the basis of $100.00 an hour for the time of Mr. Leeper and $80.00 an hour for the time of the associate, and that the majority of the time spent was for matters which were unauthorized by either the El Paso Bank or the Probate Court.

After reviewing only the evidence and the inferences therefrom tending to support the jury finding of $20,000.00 and disregarding all evidence to the contrary, this Court overrules the “no evidence” point.

Further, after considering all the evidence, and all of the reasonable inferences arising, the factual insufficiency points are overruled.

While the Appellants did develop inconsistencies in the Appellee’s testimony regarding the valuation testimony, the jury was justified under all the evidence in returning its verdict as being fair and reasonable within the authorization for the work by both the Probate Court and the Temporary Administrator. The trial Court attempted to so limit the jury in its consideration of the value of testimony by its instructions. While certain of the objections made by the Appellants to the charge might have properly limited the jury still further in its consideration, no error is reflected as there is no showing that the objections were ever presented and overruled by the trial Court as was then required by Tex.R. Civ.P. 272.

Finally, Appellants complain that the trial Court committed error in excluding from the jury’s consideration the fact that $15,000.00 was the amount of attorney’s fee charged in the L. R. Spires Estate. Mr. Spires, the husband of Mary Ann Spires, died in 1964 and the El Paso National Bank was appointed the Independent Executor of that Estate. The attorney for Mr. Leeper developed the fact that in the Federal Estate Tax Return for the L. R. Spires Estate, the amount of $39,000.00 was entered as the estimated attorney’s fees that might be charged in that Estate and that this was the same amount as three percent of the gross value of that Estate. Appellants then attempted to prove that the attorney actually charged that Estate $15,-000.00 as an attorney’s fee. The trial Court sustained an objection to the witness testifying to this amount but did permit the witness to testify that the fee was substantially less than the three percent. The trial Court committed no error and was within its proper discretion as the matter was purely collateral to the inquiry before the Court and the factors involved in charging the L. R. Spires Estate fee were never in evidence. 1 C. McCormick & R. Ray, Texas Evidence § 683.

All points presented by the Appellants have been considered and they are overruled. The judgment of the trial Court is affirmed.

PRESLAR, C. J., not sitting.


source: Caselaw Access Project

author: STEPHEN F. PRESLAR, Chief Justice. WARD, Justice STEPHEN F. PRESLAR, Chief Justice.

license: Public Domain

text:
    BURROUGHS CORPORATION, Appellant, v. FARMERS DAIRIES, Appellee.
    No. 6459.
    Court of Civil Appeals of Texas, El Paso.
    June 16, 1976.
    Rehearing Denied July 28, 1976.

      Kemp, Smith, White, Duncan & Hammond, William J. Derrick, Larry C. Wood, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, Charles R. Jones, Myron D. Brown, El Paso, for appellee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a fraudulent representation suit instituted by Appellee, Farmers Dairies, as plaintiff against Burroughs Corporation as defendant. Trial before a jury resulted in a judgment against Burroughs for $16,141.19 damages.

The issue on appeal involves discretion to allow a trial amendment at the end of the evidence. We reverse the judgment of the trial Court and remand for another trial.

Speaking of the parties as they appeared in the trial Court, plaintiff first leased, in 1968, and then purchased, in 1969, an automated accounting system from the defendant. Plaintiff is required to file monthly a report known as the Federal Milk Marketing Report, and this controversy centers around the representation that the equipment purchased would automatically produce that report. In 1972, plaintiff brought this suit for rescission of the contract and return of the purchase price in excess of $34,000.00. At the close of all the evidence, the plaintiff was permitted to file a trial amendment seeking damages, and the case was submitted to the jury on that basis rather than on the theory of rescission. The jury found that there had been misrepresentation which induced the plaintiff to install the system and found the damages for pecuniary loss were $16,141.19.

The trial Court abused its discretion in allowing plaintiff to file the trial amendment. Rule 66, Tex.R.Civ.P., provides:

“If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading, * * * the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits.”

The record in this case discloses that the allowance of the amendment, the change of the theory of recovery, resulted in prejudice to the defendant “in maintaining his action or defense.”

It is recognized that the rule is a salutary one and should be liberally construed; and that an amendment should be allowed even after close of the evidence if it merely places in the written record pleadings of issues not previously raised by the pleadings but in fact tried by express or implied consent. See 2 McDonald, Texas Civil Practice § 8.07 at 333 (rev. ed. 1970). But our concern here is that there was a complete change of the theory of recovery after all of the evidence was in. The trial amendment for damages made the case a new law suit requiring a new and different defense.

An action for damages is ordinarily based on the continued existence of the transaction, whereas an action for rescission is based on its abrogation. A party who is injured by fraud may elect to accept the situation and recover his damages, or he may repudiate the transaction and seek restoration of the status quo in an action to rescind. But it is held that he cannot do both under the doctrine of election of remedies. Andrews v. Powell, 242 S.W.2d 656 (Tex.Civ.App.—Texarkana 1951); Albin v. Isotron Corporation, 421 S.W.2d 739 (Tex.Civ.App.—Texarkana 1967, writ ref'd n. r. e.); Blum v. Elkins, 369 S.W.2d 810 (Tex.Civ.App.—Waco 1963). Plaintiff filed this suit seeking to rescind the contract and recover its purchase price. It was on file for three years and was then tried for three days, and at the conclusion of all of the evidence, the amendment was sought and allowed. The statement of facts consists of some 580 pages of evidence on the rescission theory; there is nothing about this evidence that would characterize it as being for damages rather than for rescission. Thus, there is no justification for the amendment to meet an issue tried by consent; rather, this was a new law suit.

It is held that a trial amendment ordinarily should be denied when sought after the evidence for both parties has been fully offered and when it would change the theory of the trial. 2 McDonald, Texas Civil Practice § 8.07, supra; Fullingim v. Dunaway, 267 S.W.2d 483 (Tex.Civ.App.—Beaumont 1954); Texas Employers' Ins. Ass’n v. Dillingham, 262 S.W.2d 748 (Tex.Civ.App.— Fort Worth 1953, writ ref’d n. r. e.); Traveler’s Ins. Co. v. Hobbs, 222 S.W.2d 168 (Tex.Civ.App.—San Antonio 1949); Boynton v. Smith, 110 S.W.2d 640 (Tex.Civ.App.—Beaumont 1937, writ dism’d); Tuck v. Tuck, 509 S.W.2d 656 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.). And, see Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422 (1954), wherein Chief Justice Calvert said:

“ * * * The defendants had a right to assume that the case as made by the pleadings and testimony was the case and the only case they were called upon to defend and to prepare their defense accordingly. (Citing authorities). * * ”

Plaintiff/Appellee urges that the defendant has not laid the proper foundation to complain of abuse of discretion in admission of the amendment because it did not request that it be allowed to reopen to present other evidence, withdraw its announcement of ready, or file a motion for continuance. In some situations, such a requirement would be justified and there are cases so holding, but this is not such a case. Here, for three years the defendant has prepared to defend a contention that the contract should be rescinded; that case was tried — all the evidence was submitted; defendant was then met with the opposite contention that plaintiff would stand on the contract and seek its damages under it. We cannot assume that the defendant would have at hand the necessary testimony to reopen and proceed to defend this new law suit. Hence, there is no justification in saying that it must request to reopen to preserve its error. Rule 66 does not require it. Under it, defendant had the burden of convincing the trial Court that the filing of the trial amendment was prejudicial to it. As indicated from our discussion of the case, we think it met that burden. Also, there is another consideration, as Judge Calvert said in the Westinghouse Electric Corporation case, supra:

“To require the trial court to permit amendments such as the one filed in this case would disrupt orderly procedure and lead to frequent interruptions and interminable delay in concluding expensive jury trials. * * * ”

For the error of permitting the amendment, the judgment must be reversed. Under this disposition of the case, there is no purpose in discussing the other assignments of error.

The judgment is reversed and the cause remanded for another trial.

WARD, Justice

(dissenting).

I respectfully dissent. The majority is reversing this case where neither the error, if any, has been preserved nor has harm been shown to have been done to the Appellant. Under Rule 66, Tex.R.Civ.P., the Appellant failed to satisfy the trial Court that the allowance of the trial amendment would prejudice it in maintaining its defense upon the merits. Because of that failure under the terms of that Rule, the trial Court permitted the amendment, or at least this should be the presumption on this appeal. The record reflects from the judgment that the parties announced ready for trial on December 9, 1974; that the trial amendment was presented and “argued to the Court on Wednesday, December 11, 1974,” after an objection had been made by the Appellant to its filing. The terms of the objection are not shown. There was then no motion made by the Appellant to withdraw its announcement of ready with a request for continuance, nor was there then any request to reopen the evidence. The record has not been protected. 2 McDonald, Texas Civil Practice § 8.07 at 334 (rev. ed. 1970).

Complaint is made in the motion for new trial, where it is stated that the Appellant was harmed because if it had been apprised that the Appellee was seeking damages as opposed to rescission, “Defendant would have developed evidence during the trial to negate damages and would have cross examined Plaintiff’s witnesses on the question of damages.” This conclusion without proof shows nothing, particularly in the face of one argument made by Appellant under its point that since no evidence of damages was ever offered by the Appellee, Appellant did not desire to reopen as that would have given Appellee an opportunity to prove its damages. At most, the Appellant contends that it did not desire to offer any further proof but that it might have cross examined Appellee’s witnesses differently. It has not shown in what manner. I fail to see how the filing of the trial amendment under this record has amounted to such a denial of the rights of Appellant as was reasonably calculated to cause, and probably did cause, an improper judgment which requires a reversal and a remand. Rule 434, Tex.R.Civ.P. The burden of showing harm has been misplaced on this point.

ON MOTION FOR REHEARING

STEPHEN F. PRESLAR, Chief Justice.

By its motion for rehearing, Plaintiff/Ap-pellee continues to urge that the Defendant has not laid the proper foundation to complain of abuse of discretion in the allowance of the trial amendment. It begins its argument by saying: “No objections to the allowance of the Trial Amendment are in the record.” The transcript and Appellee’s own pleadings and the Court’s findings are to the contrary. In the very trial amendment here complained of, Plaintiff/Appellee pled: “ * * with leave of Court first had and obtained, and after the Court’s having heard the objections of defense counsel, which are of record manifest, prior to the Court’s granting leave to file, files this the Plaintiff’s First Trial Amendment * In its fiat allowing such amendment, the Court says: “The foregoing Trial Amendment having been duly presented and argued to the Court Wednesday, December 11, 1974, and the Court having heard the arguments of the attorneys for both parties, and it is the ORDER, JUDGMENT and DECREE of this Court that leave be and the same is hereby in all things granted to the Plaintiff to file the foregoing Trial Amendment in this cause.”

Thus, Defendant met its burden of objecting to the amendment, which was, under Rule 66, Tex.R.Civ.P., to “* * * satisfy the court that the allowance of such amendment would prejudice him in maintaining his * * * defense upon the merits.” Appellee urges that we must presume the trial Court was correct in the absence of some reasons given by Appellant in opposition to the amendment. We do not so read Rule 66 as requiring some specific words to be used or the pleading of some required formal reasons. Rather, the burden there, as stated, is to satisfy the Court. It is the record in this case that should have satisfied the Court, and not any special words or reasons given.

It was not what Appellant said in objecting to the amendment, but what the record shows that presents the error. That record is, speaking of the parties as they appeared in the trial Court, that the Plaintiff alleged and tried to completion a case for rescission of a contract on the basis that there was fraud in the inducement of entering into the contract. At the completion of the case, it was met with a motion for a directed verdict, which was good. There was no pleading or evidence of an offer to return the merchandise; there was no pleading or evidence of an offer to pay for the value of any benefits from its possession. This was fatal to the case for rescission. In fact, the proof was that the suit was filed in September of 1972, and the equipment obtained under the contract was used until April of 1973 by the Plaintiff; the equipment was used for over five years. In an exchange between counsel and the Court out of the presence of the jury, it was established that sometime in May of 1973, after the equipment had been replaced by IBM equipment and long after the suit was filed, counsel for Plaintiff told counsel for Defendant in a telephone conversation that they could come and get it. But there are no pleadings or evidence as to that belated offer. Thus, the record is that the Plaintiff went to Court and tried its case, which had been on file for three years with known fatal flaws in its pleadings, and when met with a directed verdict pointing out those flaws, it sought the amendment in question asking that a different cause of action be submitted to the jury. In deciding whether to permit the amendment or not, the equities clearly appear to lie with the Defendant.

The Defendant did nothing to bring about this situation. It did nothing but defend against the case pled against it— and successfully. Before the jury, it opposed a contention that the contract should be rescinded. It would be prejudicial to then have to assume a contrary position before the same jury, and that without prior notice. Notice is fundamental to justice, and our rules and laws make every provision for it. Prior to having to defend against this new lawsuit, there should have been notice in ample time to make preparation for it. Otherwise, the rights of the Defendant have been prejudiced. On the other hand, the Plaintiff is responsible for the state of its pleadings. It shows no diligence or excuse for its failure to have its pleadings in order. Plaintiff sought to rescind on the basis of fraud in the inducement of a contract entered into in 1968; it delayed until after trial in 1975 to present the amendment causing this controversy.

This was not a trial amendment to meet an objection that evidence, or special issues in the charge, are not supported by the pleadings. But even if it were, the amendment should not have been allowed. The factors which affect the exercise of the judge’s discretion on such matters are discussed in McDonald, Texas Civil Practice, Vol. 2, Sec. 807, page 330, wherein the au-

thor quotes from Lightner v. McCord, 151 S.W.2d 362 (Tex.Civ.App.—Amarillo 1941):

“ ‘In the matter of allowing amendments pending the trial in order to meet the proof, the trial judge should allow the amendment if it appears that the new matter contained in it was not known to the party seeking to file the same or, by the exercise of reasonable diligence, he could not have ascertained the same when his former pleadings were filed, and that it does not involve new issues or inject into the case new matters which would interfere with the orderly progress of the court’s docket or work injustice upon other parties. However, . . . when it appears that the new matter was known to the party seeking to file the amendment, or to his counsel, or, by exercising reasonable diligence, it could have been known . at such time as would have enabled them to include it in his former pleadings, or if it injects new matter . . . the request should be denied.’ ”

Additional authority for that statement is Texas Employers’ Ins. Ass’n v. Dillingham, 262 S.W.2d 748 (Tex.Civ.App.—Fort Worth 1953, writ ref’d n. r. e.); Moore v. Dallas Post Card Co., 215 S.W.2d 398 (Tex.Civ.App. —Dallas 1948, writ ref’d n. r. e.), and James A. Dick Co. v. Yanez, 55 S.W.2d 600 (Tex.Civ.App.—El Paso 1932, writ ref’d).

We can understand the reluctance of the trial Court not to continue, but to try this case to completion, which has been on its docket for three years. But, we remain convinced that the trial judge abused his discretion in allowing the amendment. The motion for rehearing is overruled.

WARD, J., dissents.


author: OSBORN, Justice.

text:
    Alonzo BACA, Appellant, v. TRANSPORT INSURANCE COMPANY, Appellee.
    No. 6496.
    Court of Civil Appeals of Texas, El Paso.
    June 16, 1976.
    Rehearing Denied July 21, 1976.
    Malcolm McGregor, Inc., Harry Tom Petersen, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, Charles R. Jones, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This is a workmen’s compensation case in which the trial Court entered summary judgment for the insurance carrier because the claimant did not timely file his claim with the Industrial Accident Board. We reverse and remand to the trial Court.

The Appellant alleged that he sustained injuries to his heart on July 13, 1972, while an employee of Lee Way Motor Freight, Inc. In his petition, he alleged “Plaintiff timely gave notice of injury, filed his claim for compensation and has complied with all jurisdictional requisites necessary to perfect this appeal from the final ruling and decision of the Industrial Accis ent Board * * He further alleged that if the claim was not timely filed, then good cause existed for the late filing. Appellee filed a general denial, and then asserted in a motion for summary judgment that no claim was filed for more than two years after the alleged heart attack and that Appellant was aware of his injuries and incapacities and that he failed to exercise any diligent effort to determine if he had a claim and to file it. The motion recites that it is based upon the pleadings and depositions on file.

In his deposition, Mr. Baca stated that he was a truck driver, and that on July 13, 1972, “ * * * I was getting up to the truck and I felt like I pulled a muscle.” While driving from El Paso to Balmorhea that morning, he became nauseated, he felt sick and the pain became worse by the time he got home that evening. The next morning, he went to the hospital where he stayed for twenty-two days. In November, he had open chest heart surgery. The doctor advised him that cholesterol caused the heart attack. He returned to work in February, 1973. While checking with a lawyer in July, 1974, about some union benefits, he learned that a heart attack could be caused by a strain and be compensable under the Workmen’s Compensation Law. He then filed his claim with the Industrial Accident Board on July 29, 1974.

The Appellant presents two Points of Error contending first, that the trial Court erred in granting summary judgment on the lack of good cause issue and secondly, that a fact issue on good cause existed because notice to the employer would toll the filing requirements under Article 8307, § 7a, Tex.Rev.Civ.Stat.Ann.

We sustain the first point for two reasons. First, Rule 93(n), Tex.R.Civ.P., provides:

“In the trial of any case appealed to the court from the Industrial Accident Board the following, if pleaded, shall be presumed to be true as pleaded and have been done and filed in legal time and manner, unless denied by verified pleading:
U * * *
“(2) Claim for compensation.
a * $ 9):
“(7) That there was good cause for not filing claim with the Industrial Accident Board within the six months’ period provided by statute.”

In this case, the Appellant pled that he filed his claim for compensation and the Appellee did not file a verified denial. Thus, under the provisions of the Rule, it is presumed that the filing was done and filed in legal time. In National Auto. & Cas. Ins. Co. v. Layman, 248 S.W.2d 993 (Tex.Civ.App.—Austin 1952, writ ref’d n.r.e.), the Court said:

“The presumption of this rule is that appellee’s claim for compensation was ‘filed in legal time and manner’ and appellant not having denied this fact, so established, by a verified pleading, the presumption becomes conclusive.”

Also see: Southern Underwriters v. Tullos, 136 Tex. 408, 151 S.W.2d 789 (1941); Traders & General Ins. Co. v. Porter, 124 S.W.2d 900 (Tex.Civ.App.—San Antonio 1938, writ ref’d); and Transport Insurance Company v. Reid, 384 S.W.2d 204 (Tex.Civ.App.—Tyler 1964, no writ).

In a trial on the merits, a failure to timely raise such a defect would be waived. Rule 90, Tex.R.Civ.P.; Watson v. Texas Indemnity Ins. Co., 147 Tex. 40, 210 S.W.2d 989 (1948). But summary judgments are not to be granted on default of a party, but only on the merit of the summary judgment pleading and proof. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972).

We also sustain the first point because we conclude that the evidence in the trial Court did not show as a matter of law that “good cause” did not exist for the late filing of the claim. In a similar case, King v. Texas Employers’ Insurance Association, 416 S.W.2d 533 (Tex.Civ.App.—Amarillo 1967, writ ref’d n.r.e.), a truck driver who claimed a heart attack appealed from a summary judgment which was entered against him on the issue of good cause for the late filing of his claim. The Appellate Court concluded that a mistake in the cause of disability is no less a “good cause” for failure to file a claim than a mistake as to the extent of disability, and reversed the summary judgment on facts which showed that the truck driver had equated his heart attack with an illness rather than an injury, just as Mr. Baca did in this case. The decision in the King case was followed by this Court in Davis v. Texas Employers Insurance Association, 516 S.W.2d 452 (Tex.Civ.App.—El Paso 1974, no writ), which also involved a heart attack case. In that decision, we said:

“The Texas Supreme Court in Texas Employers’ Insurance Association v. Leathers, 395 S.W.2d 601 (1965), stated the general rule that, if it meets the test of ordinary prudence, a good faith belief of a claimant that his injuries were caused by something other than an accident he received in the course of his employment may be good cause for failure to present his claim within the statutory time. Whether conduct is reasonable is ordinarily a question of fact. Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972). And the question of diligence on the issue of ‘good cause’ may be determined against the claimant as a matter of law only when the evidence, construed most favorably for the claimant, admits no other reasonable conclusion. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948).”

Under the holding in Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.1970), the burden was on the appellant as the moving party to negate with proof, as a matter of law, the claimant’s allegation of good cause. That was not done under the pleadings and evidence in this case. Appellant’s Point of Error Number One is sustained. It is not necessary that we pass on the other point of error.

The judgment of the trial Court is reversed and the case is remanded to the trial Court.


author: COULSON, Justice.

text:
    Fred E. GRAEF et al., Appellants, v. The CITY OF GALVESTON et al., Appellees.
    No. 1408.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 23, 1976.
    Rehearing Denied July 14, 1976.
    Robert M. Moore, Moore & Laurence, Houston, for appellants.
    Benjamin R. Powel, McLeod, Alexander, Powel & Apffel, Inc., Robert V. Shattuck, City Atty., Bryan F. Williams, Jr., Royston, Rayzor, Vickery & Williams, Galveston, Warner F. Brock, Brock & Williams, Herman Wright, Mandell & Wright, Houston, for appellees.
   COULSON, Justice.

This suit was brought by several individuals seeking injunctive relief against the City of Galveston, the Galveston Wharves, the Wharves Board of Trustees, and others. The heart of this controversy concerns the Pier 18 and 19 area of Galveston. The trial court granted the defendants’ motion to dismiss the cause of action as to all parties. The plaintiffs below have perfected this appeal. We reverse and remand the cause.

Plaintiffs Fred E. Graef, Salvatore Arei-diacono, Alfio Valastro, John H. Williams, Jr., and Charles R. Hill are all residents, taxpayers, qualified voters and citizens of Galveston. Plaintiffs’ original petition states the following: that Graef and Williams operate fishing charter boats for hire in and around Piers 18 and 19 as tenants of the Wharves; that Arcidiacono and Valas-tro operate their shrimp boats in, out and around Piers 18 and 19; that Hill and his brother operate Hill’s Fish and Oyster Company on land owned by the City of Galveston and located adjacent to Pier 19. Plaintiffs plead that the Board verbally informed them that they would have to give up their present business locations in order that the Pier 18 and 19 area could be filled in and used as open cargo docks. Plaintiffs plead that the Pier 18 and 19 area is an historic site; that the proposed changes to the area would destroy it as a tourist attraction; that it is a public area; that they would be deprived of their business opportunities derived from tourists; that their costs of operation would increase; that the mutual benefits of having their businesses in close proximity to each other would be lost; and that their existing improvements would be destroyed.

Furthermore, the plaintiffs plead that they and the citizenry of Galveston had through public meetings, petitions and resolutions expressed their desire that the City and the Board retain the present facilities and had requested a special election to determine the public’s wishes. Plaintiffs alleged that the City’s construction of Article II of the City Charter, which created the Wharves as a public utility of the City, as precluding action on the City’s part constituted an unconstitutional delegation of governmental functions and an abuse of discretion.

Plaintiffs also plead that the Board entered a contract to construct facilities for shrimp berths on Pelican Island, which is some distance away from the Pier 18 and 19 area; that the movement of any of their businesses to Pelican Island would disrupt their mutual support and work an economic hardship on them. Finally, plaintiffs alleged generally that the defendants’ actions have violated the plaintiffs’ rights of due process and equal protection. By supplemental petition, plaintiffs allege that they brought suit as a class action on behalf of other shrimpers, party boat and fish house operators in the Pier 18 and 19 area. In their prayer for relief, plaintiffs seek to enjoin defendants from, among other things, changing any portion of the Pier 18 and 19 area.

Defendants answered that plaintiffs are tenants of the Board on a month-to-month rental basis; that should plaintiffs be wrongfully evicted they would have an adequate remedy at law; that defendants have not denied any constitutional rights of the plaintiffs; that defendants have not abused their discretion; and that the Board’s actions are within the discretionary power granted by Article VII of the Charter of the City of Galveston.

Upon the defendants’ motions, the trial court entered an order dismissing plaintiffs’ suit for failure to state a cause of action. This procedure was error. The rule is stated in Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex.Sup.1974):

[OJnly after a party has been given an opportunity to amend after special exceptions have been sustained may the case be dismissed for failure to state a cause of action.

There was no action by the trial court here sustaining special exceptions. Consequently, the order granting a dismissal for failure to state a cause of action must be reversed. The cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


author: CIRE, Justice.

text:
    Jerry M. MULLOY, Appellant, v. Bernardine J. MULLOY, Appellee.
    No. 1418.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 23, 1976.
    Rehearing Denied July 14, 1976.
    Michael C. Neel, Martin J. Grimm, Houston, for appellant.
    Thomas B. Foster, B. Jeff Bratton, Foster, Bratton, Golden & Kelley, Houston, for appellee.
   CIRE, Justice.

This is an appeal from an order of the court of domestic relations denying appellant’s application for a writ of habeas corpus to enforce a child custody order of a Kansas district court. For the reasons set forth below, we dismiss the appeal.

Appellant’s motion for new trial was overruled on January 12, 1976. Thus, the deadline for filing the transcript and statement of facts in this court was March 12, 1976. Tex.R.Civ.P. 386. On March 24 appellant tendered his motion to extend the time for filing the transcript and statement of facts. The motion was timely filed under Rule 21c, Texas Rules of Civil Procedure. We granted appellant’s motion, and the transcript and statement of facts have been filed in this court. By crosspoint ap-pellee urges us to reconsider and to deny appellant’s motion, for the reason that the motion does not set forth a reasonable explanation for the late filing as required by Rule 21c.

Appellant ordered the transcript and statement of facts on January 23, 1976. The statement of facts was made available to appellant by the court reporter on February 27, and the transcript was received by him on March 4. The statement of facts was not presented to appellee for her approval until March 16, four days after the final day for filing in the court of civil appeals. The transcript and statement of facts were tendered by appellant for filing in this court on March 24.

Appellant’s motion to extend the time for filing the statement of facts and transcript stated, as the reason for the late filing, that the statement of facts as originally prepared had erroneously contained the name of an attorney who had not appeared in the case, and the extra time had been necessary in order to correct the mistake. Appellant’s motion states that the error in the statement of facts was discovered on March 18.

Rule 21c provides that the failure to timely file a transcript or statement of facts in the court of civil appeals will not authorize dismissal of the appeal if the defaulting party timely files a motion reasonably explaining his failure to meet the filing deadline. In construing the language of Rule 21c we meet the question of the meaning of the term “reasonable explanation”. We hold that a reasonable explanation under Rule 21c is “any plausible statement of circumstances indicating that failure to file within the sixty-day period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance . . Sloan v. Passman, 538 S.W.2d 1 (Tex.Civ.App.-Ballas, 1976) (dissenting opinion).

The appellant in this case has failed to offer any explanation at all relative to the sixty days from January 12 to March 12. The only reason given in his motion for the late filing concerns a mistake which was not discovered until six days after the period for filing had expired. Since appellant’s explanation of his delay in filing the transcript and statement of facts does not pertain to any portion of the sixty days during which he was required to file them, we hold that his motion for extension of time must be denied.

The transcript and statement of facts not having been timely filed in this court, the appeal is dismissed.


text:
    Anita MANVILLE, Appellant, v. Candace Mossler GARRISON et al., Appellees.
    No. 1381.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 23, 1976.
    Rehearing Denied July 14, 1976.
    George M. Bishop, Houston, for appellant.
    David H. Berg, Lackshin, Nathan & Berg, Houston, for appellee.
   COULSON, Justice.

This is a breach of contract suit.

Anita Manville sued Candace Mossier Garrison and Candace Mossier Enterprises for breach of a contract concerning screen rights and a screen play based upon a biography by Anita Manville entitled The Lives and Wives of Tommy Manville. Judgment was entered for the appellant, Anita Man-ville, in the amount of $26,300 with interest and court costs. We affirm.

Appellant entered an oral contract on March 5, 1973 with appellee, Candace Mossier Garrison, requiring appellee to pay $60,000 for a screen play, screen rights, and releases for a prospective movie based on appellant’s book. On March 14, 1973 a second contract in writing was entered into by the parties concerning the same subject matter. A final contract in writing was entered by the parties concerning the same subject matter with certain modifications on March 15, 1973.

After a jury trial, judgment was entered that the contract of March 15,1973 is in full force and effect and that subsequent rights of the parties shall be subject to the contract. For the breach of the March 15,1973 contract, the court ordered appellee to pay $26,300 with interest and court costs. Appellant levied execution on the judgment and was paid the total amount of $31,-871.44.

By this appeal, appellant seeks to attack the judgment from which she has benefit-ted by levy of execution. It is settled that:

Accepting the fruits of a judgment and thereafter appealing therefrom are totally inconsistent positions, and the election to pursue one course is deemed an abandonment of the other.

Kaiser v. Standard Oil Co. of New Jersey, 89 F.2d 58, 59 (5th Cir. 1937). It is clear that appellant has by levy of execution accepted the fruits of the trial court’s judgment which is predicated on its finding that there has been a breach by appellee of the March 15, 1973 contract still in full force and effect.

Appellant’s attack on the judgment from which she has benefited will not be considered. A litigant may not treat a judgment as both right and wrong. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1003 (1950). See also, Gaulding v. Gaulding, 256 S.W.2d 684 (Tex.Civ.App.—Dallas 1953, no writ).

We have examined appellant’s points of error and find them without merit.

Affirmed.


author: MOORE, Justice.

text:
    W. R. HUGHES, Appellant, v. MARSHALL NATIONAL BANK, Appellee.
    No. 896.
    Court of Civil Appeals of Texas, Tyler.
    June 24, 1976.
    Rehearing Denied July 22, 1976.

      Fred Erisman, Longview, J. Harold Hughes, Honolulu, Hawaii, for appellant.
    John M. Smith, Roberts, Harbour, Smith, Harris, French & Ritter, Longview, for ap-pellee.
   MOORE, Justice.

This is an appeal from an order appointing a receiver. The basic controversy is between Marshall National Bank as Independent Executor of the Estate of Lilia Long Hughes, deceased, and W. R. Hughes, her surviving husband. The litigation commenced when appellant, W. R. Hughes, filed a petition for a declaratory judgment seeking to have the court to determine and declare that a certain agreement between him and his deceased wife made in 1956 constituted a valid, binding contract dividing their property as of that date. Appel-lee, Marshall National Bank in its capacity as Independent Executor of Lilia Long Hughes, joined by certain devisees named in her will, answered with a general denial and specially denied that Lilia Long Hughes entered into a contract with W. R. Hughes dividing their properties. The Bank also filed a cross-action seeking an accounting of the community property. Appellant responded with a sworn itemized account showing 47 items of property which he alleged were owned by him and his wife as joint tenants as a result of the 1956 agreement and that all other property held by each party at that time was to be his or her separate property. Not being satisfied with the accounting rendered by W. R. Hughes, the Bank filed an application for the appointment of a receiver to take control and possession of all property in the possession of appellant, both separate and community, including all books and records of W. R. Hughes whether the same pertained to community or separate property. Appellant resisted the application. The matter came on for hearing solely on appellee’s application for a receiver. After a trial before the court, the trial court declined to appoint a receiver to take possession of any of the properties except appellant’s books and business records. The order appointing the receiver recited as follows:

“1. That the Defendant and Cross-Plaintiff Marshall National Bank as Independent Executor of the Estate of Lilia Long Hughes owns an interest in all of the books and records in the possession of W. R. Hughes which would reflect the type, description and amount of properties that are in the possession of W. R. Hughes, including but not being limited to bank deposit records, certificates of deposit, savings and loan institution records, municipal bond certificates, stock certificates, royalty deeds, mineral deeds, warranty deeds and any other type of instrument or record that would evidence the nature, extent, date of acquisition and funds which were used to make such purchases of properties that are in the hands of and in possession of the Plaintiff and Cross-Defendant W. R. Hughes.”

The order further recited that the receiver was to take charge of appellant’s books and records and was to make the same available to the Bank for the purpose of making an inspection of the records and making copies thereof. Appellant, W. R. Hughes, timely superceded the order and perfected this appeal.

We reverse and vacate the order appointing a receiver.

Pursuant to the request of appellant, W. R. Hughes, the trial court filed findings of fact and conclusions of law. Among other things, the trial court found: (1) that Mr. & Mrs. Hughes were never divorced from the date of their marriage on August 18, 1931, until the date of Mrs. Hughes’ death on October 23,1973, (2) that Mrs. Hughes died testate and the Marshall National Bank was appointed and qualified as Independent Executor of her estate, (3) that on the date of Mrs. Hughes’ death various items of community property were owned by them, which community property is now in the possession of W. R. Hughes, (4) that W. R. Hughes has not made an accounting to the Bank of such properties, (5) that W. R. Hughes has possession and control of the books and records which would reveal the description and amount of community property and that the Bank is entitled to inspect the books and records which would reveal the description and amount of the community property, (6) that W. R. Hughes has refused to voluntarily grant the Bank the right to inspect the books and records, (7) that although the Defendants and cross-plaintiffs in this cause would have the right to compel W. R. Hughes to deliver possession of the books and records which will reveal the description and the amount of community properties owned jointly by him and the Estate of Lilia Long Hughes by interrogatories, depositions or other methods of discovery, as is authorized by the Texas Rules of Civil Procedure, they would violate the Dead Man’s Statute, commonly known as Article 3716 of Vernon’s Revised Civil Statutes and they should not be required to waive such Dead Man’s Statute, (8) that the Bank, as Independent Executor, owns an interest in books and records reflecting the type, description and amount of community property, (9) that the books and records are in danger of being lost, destroyed or altered, (10) that the appointment of a receiver was necessary, (11) that the Bank has no other adequate remedy at law or in equity to protect their rights, save and except the appointment of a receiver and unless a receiver is appointed the Bank will suffer irreparable loss, (12) that a receiver should be appointed to take possession of the books and records and the Bank should be permitted to inspect and make copies of the books and records, but such Receiver should not take possession and control of the actual physical properties of which W. R. Hughes has the possession and control.

The undisputed evidence shows that in response to the Bank’s demand for an accounting, appellant prepared a list describing 47 items of land and oil and gas royalties owned by him and his deceased wife as co-tenants as a result of the 1956 agreement and delivered the same to the Bank. The record also shows that division orders were delivered to the Bank for the one-half interest owned by Mrs. Hughes and that at the time of trial the Bank was receiving the proceeds from such royalty interests. The undisputed evidence further shows that appellant delivered to the Bank the sum of $60,538.20 representing Mrs. Hughes’ one-half interest in a joint account which the parties maintained for depositing the royalty income from the 47 royalty interests owned by them.

The record reveals that appellant is the owner of a vast estate consisting of several hundred items of real and personal property in the nature of oil royalties, real estate, stocks, bonds and savings accounts situated in various counties throughout the state. His estate is such that it is necessary for him to employ an accountant to maintain a set of books in order to keep track of his income from his various holdings accruing daily.

Article 2293, Tex.Rev.Civ.Stat.Ann. (1971), authorizes the appointment of receivers in the following cases:

“1. In an action . . . between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.”

By his first point appellant contends that the court erred in appointing a receiver because the Bank failed to allege or prove that it had no adequate remedy at law. We find no merit in this point.

It affirmatively appears from the record that the Bank sought the appointment of a receiver on the grounds stated in Subdivision 1 of Article 2293, supra, and not on an equitable basis as provided for in Subdivision 4. It is now settled that when a receiver is sought on the basis of Subdivision 1 of the statute, allegations and proof of the inadequacy of a legal remedy is not necessary. Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217 (1940). The right to a receiver then becomes a legal right. Richardson v. McGloskey, 228 S.W. 323 (Tex.Civ.App.—Austin 1920, writ dism’d).

Appellant asserts by his second point that the trial court erred in appointing a receiver for the books and records because there is no evidence that such books and records are in danger of being lost, removed or materially injured. As we view the record, this contention must be sustained.

While the right to receivership is determined solely by the statutory provision, rather than the rules of equity in respect thereto, yet the procedure to be followed in the appointment of a receiver is governed by the rules of equity. Tex.Rev.Civ.Stat.Ann. art. 2319 (1971). Head v. Roberts, 291 S.W.2d 483, 484 (Tex.Civ.App.—Fort Worth 1956, no writ); Zanes v. Lyons, 36 S.W.2d 544, 547 (Tex.Civ.App.—Dallas 1931, no writ). Under such rules no receiver can be appointed without the necessity therefor being shown to exist by legal evidence,

Under the provisions of the statute, courts are without authority to appoint a receiver unless the proof shows that there presently exists actual danger of the property being lost, removed or materially injured. Gunther v. Dorff, 296 S.W.2d 638, 640 (Tex.Civ.App.—Waco 1956, writ dism’d); Whitson Co. v. Bluff Creek Oil Company, 256 S.W.2d 1012, 1014 (Tex.Civ.App.—Fort Worth 1953, writ dism’d); Massad v. Wilson, 83 S.W.2d 806, 807 (Tex.Civ. App.—Texarkana 1935, no writ); Turnbow v. Bishop, 71 S.W.2d 918, 920 (Tex.Civ.App.—Texarkana 1934, no writ); Richardson v. McCloskey, supra.

The drastic remedy of receivership should never be applied unless the evidence shows that some serious injury to the applicant will result or is threatened. Texas Consolidated Oils v. Hartwell, 240 S.W.2d 324, 327 (Tex.Civ.App.—Dallas 1951, mandamus overruled); Gunther v. Dorff, supra.

It must be kept in mind that the only property involved here is the appellant’s books and business records. Therefore, the finding of the trial court can be sustained only if the record contains evidence of probative force showing that there presently exists actual danger of the books and records being lost, removed or materially injured.

After a diligent search of the record we fail to find any evidence of probative force showing that the books and records in appellant’s possession are in danger of being lost, removed or materially injured. While the evidence shows that appellant is eighty-three years of age and suffers from health problems, the evidence shows that he is actively engaged in business affairs on a daily basis. Several officials of Longview’s First National Bank, where he does business, testified that he was in the bank transacting business almost every day. They further testified that they found him to be a prudent, conservative and astute businessman despite his age. There is nothing whatever in the record to suggest that his books are in danger of being lost, removed or materially injured by reason of any mental or physical infirmity.

The Bank argues that the receivership can be sustained because there is evidence showing (1) that both before and after the death of Mrs. Hughes appellant made several large charitable donations out of the parties’ joint bank account, (2) that on January 24, 1974, during a brief illness, not knowing whether he would recover, he wrote a letter to his nephew, J. Harold Hughes, an attorney authorizing him to take charge of his property, (3) that he purchased a large amount of tax exempt bonds with funds the Bank contends were community funds, and (4) that he deposited large sums of money in three bank accounts designated as his separate estate from income which the Bank contends was community property.

While the foregoing evidence might have been sufficient to show that funds jointly owned by the parties were in danger of being lost or removed, had the court seen fit to appoint a receiver over such property, we fail to perceive how this evidence could constitute any evidence showing the books and records were in danger of being lost, removed or materially damaged. There is no evidence, insofar as we have been able to find, to support the necessary finding that the books and records over which the receiver was appointed is exposed to the hazard contemplated by the statute.

It would appear from some of the findings of fact and conclusions of law that the trial court apparently concluded that it was authorized to appoint a receiver over the books and records in order to preserve the same as evidence and afford the appel-lee an opportunity to inspect the same and make copies thereof. In our research we have found no case and have been cited none authorizing the appointment of a receiver for such purpose. There is nothing in the statute authorizing the appointment of a receiver for such purpose. In the absence of any evidence showing that the books and records, as such, were in danger of being lost, removed or materially injured, the trial court had no authority to appoint a receiver merely for the purpose of preserving the same as evidence. Barrett v. Green River & Rock Springs Live Stock Co., 28 Wyo. 379, 205 P. 742, 744 (1922). The law provides other and more appropriate means for its protection and preservation under the Rules of Civil Procedure. The fact that the Bank, by following the usual discovery methods, might risk waiving the Dead Man’s Statute, supra, would be immaterial.

In view of our ruling that we have made, we do not reach appellant’s remaining points attacking the order on other grounds.

Accordingly, the judgment is reversed and the receivership is vacated.

      . In the main suit for a declaratory judgment, appellant, W. R. Hughes, alleged that he and Lilia Long Hughes were married in 1931 at a time when he owned separate properties including mineral royalty interests and that Mrs. Hughes thereafter acquired separate properties by inheritance, gift and purchase; that in 1956, after twenty-five years of unsuccessfully attempting to live together, the parties entered into an oral agreement for permanent separation and a division of the property was entered into by the parties as follows: (1) that all properties recorded in the name of Lilia Long Hughes, or in her possession, was granted her as her separate property, (2) that all property recorded in the name of W. R. Hughes, or in his possession, was granted to him as his separate property, and (3) that 47 specified income producing properties in the nature of oil and gas royalties and mineral interest, as well as the income therefrom, including money on deposit in the community bank account and all income from such properties, were to be owned equally by the parties as joint tenants. Appellant further alleged that W. R. Hughes and Lilia Long Hughes adhered to the agreement and contract accepting the benefits therefrom, annually filing joint income tax returns for seventeen years until the death of Mrs. Hughes on October 23, 1973.
      Appellee joined issue by denying that Mrs. Hughes entered into a contract dividing the properties, and relied on the presumption that all property acquired by either party during marriage is presumed to be community property-


author: McDONALD, Chief Justice.

text:
    Patrick T. DEAN, Appellant, v. TEXAS BITULITHIC COMPANY and the City of Dallas, Appellees.
    No. 5585.
    Court of Civil Appeals of Texas, Waco.
    June 24, 1976.
    Rehearing Denied July 29, 1976.

      Berman, Fichtner & Mitchell, W. W. Mitchell, II., Dallas, for appellant.
    Thompson, Knight, Simmons & Bullion, Luke Ashley, M. Leigh Bartlett, Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Dean from a take-nothing judgment rendered against him upon a jury verdict.

Plaintiff sued defendants Texas Bitulithic and City of Dallas for personal injuries, suffered when his car collided with construction barricades on a street in Dallas. The construction work was being performed by Texas Bitulithic under contract with the City.

Prior to empaneling of the jury, the trial court allowed defendants a total of 9 peremptory challenges.

Trial to the jury resulted in findings that neither defendant was negligent, and that plaintiff was guilty of contributory negligence.

The trial court rendered judgment on the verdict that plaintiff take nothing.

Plaintiff appeals on one point contending the trial court erred in allowing defendants, Texas Bitulithic and City of Dallas, a total of 9 peremptory challenges to the jury panel, as against plaintiff’s 6 peremptory challenges, inasmuch as defendants were not adverse or in conflict on any fact issue to go before the jury.

Rule 233 TRCP provides that “[e]ach party to a civil suit shall be entitled to 6 peremptory challenges in a case tried in the district court.”

Article 2151a provides that “[ajfter proper alignment of parties, it shall be the duty of the court to equalize the number of peremptory challenges provided under Rule 233 [TRCP], in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party.”

Plaintiff alleged that either or both defendants committed 13 specific acts of negligence related to the placement of warning signs, lights, and barricades at the construction site (or to the condition of the road). Both defendants denied each of the allegations of negligence. Both defendants asserted that plaintiff was negligent. Thus the two defendants were adverse to each other with respect to plaintiff’s claim of negligence as to the placement of warning signs, lights and barricades, but were united in asserting plaintiff’s contributory negligence.

The trial court in its discretion gave plaintiff 6 peremptory challenges and the two defendants 9 peremptory challenges. The trial court precisely followed Rule 233 and Article 2151a, and no abuse of discretion has been shown. See: Perkins v. Freeman, Tex., 518 S.W.2d 532; City of Amarillo v. Reid, (Tex.Civ.App., Amarillo) NRE, 510 S.W.2d 624; Lipshy v. Lipshy, (Tex.Civ.App., Dallas) NWH, 525 S.W.2d 222.

Moreover, the parties stipulated that plaintiff and defendants both struck prospective jurors 9 and 28. Therefore defendants in fact used only one peremptory challenge in excess of 6. The jury verdict was unanimous. Thus, no harm has been demonstrated. Rule 434 TRCP; Tamburello v. Welch, Tex., 392 S.W.2d 114; Perkins v. Freeman, supra.

Plaintiff’s point is overruled.

AFFIRMED.


author: REYNOLDS, Justice.

text:
    Billy SYLVESTER, Appellant, v. Walter C. WATKINS, Appellee.
    No. 8678.
    Court of Civil Appeals of Texas, Amarillo.
    June 28, 1976.
    Rehearing Denied July 26, 1976.

      LaFont, Tunnell, Formby, La Font & Hamilton, Bill La Font, Plainview, for appellant.
    Morehead, Sharp, Tisdel & White, Charles G. White, Plainview, for appellee.
   REYNOLDS, Justice.

Declaring the balance owed by the maker of, and his default on, a promissory installment note, the trial court rendered no money judgment in favor of the holder, decreeing that the holder is not entitled to accelerate the maturity of the note until proper presentment and steps for acceleration have been made after the judgment becomes final. Because the maker expressly waived presentment, demand for payment and notice of intention to accelerate the maturity, the holder is entitled to judgment for the balance owed on the note. Reformed and affirmed.

By written contract, Billy Sylvester, a feed lot operator in Hale County, Texas, purchased from Walter C. Watkins, M.D., an Amarillo surgeon, two-thirds, or 186 head, of Watkins’ herd of registered Angus cattle. The cattle were raised pursuant to a contract with Pioneer Hi-Bred Corn Company, now Pioneer Cattle Co., a division of Pioneer Hi-Bred International, Inc., to scientifically develop a genetically superior herd of pedigree Angus cattle, some calves of which Pioneer agreed to purchase at premium prices. The sale was made subject to the Pioneer contract and Pioneer’s approval, and Sylvester contractually succeeded to all of Watkins’ rights under the Pioneer contract. Two of the cows contracted for were not delivered.

The consideration was $158,100, subject to adjustments for death loss, disease and other excusable reasons by Watkins. Payment of the consideration was deferred as evidenced by Sylvester’s combined promissory note and security agreement dated 31 August 1973. The $158,100 principal of the note was payable, together with accrued interest at a rate computable from data stated in the note, in seven equal annual installments due on the first day of December of each year, beginning in 1974, although Sylvester was given an option to prepay.

A provision of the note is that any default in punctual payment of the principal or interest as the same shall become due and payable, or default in the performance of any of the terms, covenants, or conditions contained in the security agreement, shall mature the entire indebtedness “at the option of the holder.” The note has the further provision whereby Sylvester

. expressly waives all notices, demands for payment, presentations for payment, notices of intention to accelerate the maturity, protest and notice of protest, as to this note and as to each, every and all installments hereof.

By the terms of the security agreement, Sylvester agreed, among other matters, to use acceptable husbandry practices in caring for all of the cattle, to apply all proceeds from the sale of calves to the scheduled interest and principal payments of the note, and to acquire and assign to Watkins life insurance in the sum of $100,000 as additional security for the payment of the note. Sylvester’s failure to comply in these respects, as well as in any other listed condition, constituted a default under the security agreement. Upon the occurrence of Sylvester’s default, Watkins could elect to declare the entire indebtedness immediately due and payable, Sylvester “expressly waiving notice, demand and presentment.” It was provided, however, that if the proceeds from the sale of the offspring in any year shall be insufficient to make the scheduled principal and interest payments which shall be due, and if Sylvester shall otherwise be unable to make the scheduled payments on the note, then Watkins, prior to exercising his rights of foreclosure, shall first exercise the option to buy the heifer calves in the herd on the terms and at the prices set out in the Pioneer contract.

Neither the first principal installment nor the accrued interest due on 1 December 1974 was paid. On 8 January 1975, Watkins, presumably without presenting the note to or making demand of Sylvester for payment of the delinquent amounts or giving notice of intention to accelerate the maturity of the note, instituted this suit. His original petition alleged a default in the payment of the first principal and interest installments and default in performance under the security agreement. Default under the security agreement was said to be Sylvester’s failure to remit the proceeds from the 1974 sales of calves for credit on the note, to use acceptable husbandry practices in caring for the cattle, and to assign a $100,000 life insurance policy to Watkins as security for payment of the note. For these alleged defaults, Watkins elected to accelerate the maturity of the note. His prayer was for judgment for the principal of the note, accrued interest, attorney’s fees and for foreclosure of his security interest lien.

Sylvester answered on 22 January 1975 with a general denial and asked for affirmative relief canceling the contract and its collateral instruments. By his pleadings, Sylvester tendered the cattle to Watkins and served notice that he would care for the cattle only for a reasonable time after which, if Watkins had not taken possession of them, they would be sold to the highest bidder. The right to cancellation was predicated on Sylvester’s allegations that a number of the cows were not bred as represented to him, that some cows had been cross-bred which would render their calves unacceptable to Pioneer, that two cows were not delivered for which Watkins had made no adjustment, and that Watkins failed to purchase the heifer calves prior to initiating foreclosure proceedings.

Afterwards, the parties entered into a stipulation that the sale of the cattle during the pendency of the suit or Sylvester’s payment to Watkins of the proceeds from the sale or any other payment would not constitute a waiver of any defense or cause of action which had been or may thereafter be pleaded. The cattle were sold, apparently by mutual agreement of the parties, to Alan Witcher in consideration of his $85,-663.50 note to be held by Watkins.

The trial pleadings were Watkins’ second amended original petition and Sylvester’s second amended answer and cross-action. To a large extent, the pleadings were elaborations on the original pleadings. More specifically, Watkins eliminated his request for foreclosure of his security interest lien, and enlarged his pleadings to request that pursuant to the Uniform Declaratory Judgments Act, Vernon’s Ann.Civ.St. art. 2524-1, the court determine the amount of adjustment, if any, to which Sylvester is entitled, the balance owed on the note and whether Watkins is entitled to accelerate maturity of the note. Sylvester, in turn, enlarged his pleadings to allege an expenditure totaling, and to pray for the recovery of, $30,000 for the care of the cattle.

The trial court submitted the disputed facts to and received from the jury a verdict thereon. Corresponding to the numbered special issues, the jury found that Sylvester failed to (1) care for the cattle using good and acceptable husbandry practices, (2) acquire and assign to Watkins the life insurance policy required by their agreement, and to (3) timely remit the proceeds from the sale of offspring as the agreement required. The jury failed to find that (4) Watkins or his agent misrepresented the cattle and that Sylvester relied on the misrepresentation, if any, or that (6) Sylvester notified Watkins of his revocation of the acceptance of the herd within a reasonable time. The jury also found that (5) Sylvester was entitled to an adjustment of $11,812.50 for an excessive number of “open” and cross-bred cows, which (7) substantially impaired the value of the herd to Sylvester.

Determining the undisputed facts of the transaction as a matter of law and accepting the jury’s verdict, the trial court found that the balance of principal and interest due on the note — after adjustments for the purchase price of the two undelivered cows and the sum found by the jury and credits for proceeds from the sales of calves and the Witcher note which Watkins received— is $65,492.30, that Sylvester is in default on the note and that Watkins is entitled to accelerate the maturity of the note provided a proper presentment and notice of acceleration is given. The material decretal portion of the judgment then reads:

IT IS THEREFORE ORDERED, ADJUDGED, DECREED AND DECLARED BY THE COURT that the balance of the promissory note plus interest accrued thereon, owed to Plaintiff, Walter C. Watkins, by Defendant, Billy Sylvester, as of September 8, 1975, is $65,492.30.
IT IS FURTHER ORDERED, ADJUDGED, DECREED, AND DECLARED BY THE COURT that the maturity of the note has not been accelerated and that the balance of the note is not past due, and accordingly, that no judgment for money is rendered against Defendant by this judgment.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT that Defendant, Billy Sylvester, is in default on the note and security agreement, but that Plaintiff shall not be entitled to accelerate the maturity of the note until proper presentment of the note for payment has been made and until the proper steps for the acceleration of the maturity of the note have been made after this judgment has become final.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT that Cross-Plaintiff, Billy Sylvester, take nothing from Cross-Defendant, Walter C. Watkins.

In short, the court decreed that Sylvester is in default and owes the balance of $65,-492.30 on the note, but that Watkins is not entitled to a judgment for that amount because he has not presented the note for payment and given notice of intention to accelerate.

Sylvester has appealed. He does not challenge either the balance the court found he owes or that he is in default. Rather, he asserts in his first two points of error that the court erred in granting a declaratory judgment on Watkins’ fully accrued cause of action susceptible of enforcement in an action for damages which does not end the controversy. The third and fourth points are his complaints that the court erred in rendering judgment for Watkins because Sylvester legally revoked his acceptance of the cattle and because Watkins defaulted by initiating foreclosure proceedings without buying the heifer calves as required by their agreement. In responding, Watkins takes an opposite view and further contends, in two cross-points, that the court erred in failing to render a money judgment on his cause of action.

We advert first to Sylvester’s third point of error by which he contends that he legally and validly revoked his acceptance of the herd. He cites V.T.C.A., Bus. & C. § 2.608 (1968) for the three definitive requisites authorizing a revocation of an acceptance: (1) a nonconformity in the goods sold, (2) that substantially impair the value of the goods, and (3) an act of revocation occurring within a reasonable time. He then argues that the court erred in submitting special issue no. 6 because Watkins admitted a nonconformity, the jury found a number of “open” or cross-bred cows substantially impaired the value of the herd to him, and he revoked his acceptance within a reasonable time as a matter of law.

We do not consider the argument that the court erred in submitting special issue no. 6 for the reason that the contention was not preserved. No objection was made to the charge in this regard. The thrust of the point that we do consider is that Sylvester revoked his acceptance of the herd within a reasonable time as a matter of law. The reasonable time premise is that it is undisputed that delivery of the cows to him was completed on 6 October 1973, that he gave notice of nonconformity on 23 October 1973 which lead to adjustment negotiations through 22 December 1974, and that he gave notice of revocation by his 22 January 1975 pleadings filed fourteen days after Watkins had filed his suit which showed a refusal of any adjustment.

The criterion is not when the events occurred, but whether, under all of the circumstances, the act of revocation was taken within a reasonable time after Sylvester discovered or should have discovered his grounds for revocation. V.T.C.A., Bus. & C. §§ 1.204(b), 2.608(b) (1968). Disputed was whether there was to be any adjustment and, if so, when and under what conditions. Moreover, V.T.C.A., Bus. & C. § 2.608(b) (1968) states the revocation must occur before there is any substantial change in the condition of the goods. Admitted was evidence of underfeeding, weight and death loss in the herd, and introduction of bulls into the herd which pretermitted registration, all occurring prior to the pleaded notice of revocation.

Normally, what is a reasonable time is a question of fact. Modular Technology Corporation, Metal Board Division v. City of Lubbock, 529 S.W.2d 273, 276 (Tex.Civ.App., Amarillo 1975, writ ref’d n. r. e.). And there is respectable authority for the principle that whether revocation of acceptance has been seasonably effected is ordinarily a question for resolution by the trier of the facts. Dopieralla v. Arkansas Louisiana Gas Company, 255 Ark. 150, 499 S.W.2d 610, 611 (1973); Birkner v. Purdon, 27 Mich.App. 476, 183 N.W.2d 598, 601 (1970); 1 Anderson, Uniform Commercial Code, § 1 — 204:4; 2 Anderson, Uniform Commercial Code, § 2-608:9. Here, in view of all of the circumstances, the principle is particularly applicable; the trial court properly submitted the matter to the jury, and Sylvester failed to persuade the jury that he revoked his acceptance of the herd within a reasonable time. The third point is overruled.

Continuing to the fourth point that Watkins is not entitled to judgment because he defaulted by initiating foreclosure proceedings without buying the heifer calves as required by the security agreement, we think the complaint is unavailing. The requirement that Watkins not exercise any rights of foreclosure prior to exercising the option to buy the heifer calves is predicated on two conditions: if the proceeds from the sale of calves shall be insufficient to make the scheduled payments, and if Sylvester shall otherwise be unable to make the scheduled payments. To prevail, Sylvester had the burden to show the existence of these two conditions, but there is no assertion by Sylvester that he was otherwise unable to pay the first installment and there is no reference to any evidence establishing his inability to pay. Beyond that, although Watkins originally sued for foreclosure of the security interest lien, that remedy was abandoned in his trial pleadings and there was, in fact, no foreclosure of the lien. Point four is overruled.

Reverting to Sylvester’s first two points and Watkins’ two cross-points, we consider the nature and propriety of the judgment entered. The parties are agreed that it is a declaratory judgment, but they disagree as to its propriety. Sylvester contends that the declaratory judgment was erroneously rendered on Watkins’ fully accrued cause of action which was susceptible of enforcement by an action for damages; Watkins contends that, while the judgment is correct insofar as it declares the net indebtedness owed to him, it was error for the court to deny him judgment for that amount.

Although the existence of another adequate remedy does not necessarily deprive the court of jurisdiction to grant declaratory relief, Texas Liquor Control Board v. Canyon Creek Land Corporation, 456 S.W.2d 891, 895 (Tex.1970), the office of a declaratory judgment is the speedy determination of the rights of the parties when a real controversy has arisen and even before the wrong has actually been committed. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 713 (1945). But, though a declaratory judgment may be properly within the spirit of the Uniform Declaratory Judgments Act even where there is another adequate remedy, 1 McDonald, Texas Civil Practice § 2.03 (1965), it has been held that declaratory relief ordinarily will not be granted where the cause of action has fully matured and the action invokes an appropriate present remedy at law. Southern Traffic Bureau v. Thompson, 232 S.W.2d 742, 750 (Tex.Civ.App., San Antonio 1950, writ ref’d n. r. e.).

Included in Watkins’ pleadings were both the request for a declared determination of certain issues and, as Sylvester points out, a plea for judgment for the balance due on the note claimed matured by acceleration. There was no objection or exception respecting the trial of these matters and the whole controversy was before the court. It does not appear that the court intended to try the cause piecemeal if a complete decision could be rendered on all of the matters in dispute; indeed, it seems obvious from the judgment rendered upon findings of Sylvester’s default on the note, the amount owed and Watkins’ entitlement to acceleration of the maturity when proper presentment and notice of acceleration is given, that the trial court concluded it was relegated to a declaration of rights instead of a judgment for money by Watkins’ failure to present the note to Sylvester for payment and to give him notice of acceleration. The immediate question, then, is whether Watkins was required to present the note for payment of the 1 December 1974 installment and, upon Sylvester’s default in payment, to give notice of acceleration. If so, Watkins was not entitled to judgment for the amount of a matured note and the declaratory judgment, not being otherwise erroneous, was proper; but, if neither presentment nor notice was required, Watkins is entitled to judgment for the amount due on the matured note.

To demonstrate that the court correctly denied Watkins a judgment for money, Sylvester relies on Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863 (Tex.1975), for the principle that the payee of an installment note must make demand for the payment of an overdue installment prior to exercising an option to accelerate the balance. This rule, the Supreme Court said, was a part of our jurisprudence prior to the adoption of the Negotiable Instruments Act, during the existence of that Act and, because it has not been displaced by the Texas Business and Commerce Code, it will remain a part of our jurisprudence until the legislature clearly evinces an intent that the rule be abolished. It is our opinion, however, that the rule is inapplicable under the facts of the case at bar.

Ryan recognizes that demand need not be made prior to acceleration in all circumstances, albeit none of the circumstances mentioned there are present here. Ryan refers to Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614 (1948). Faulk enunciated the same rule was valid under the Negotiable Instruments Act, and then said, “The petitioners had the right to demand the presentment of the note when payment of same was demanded by respondents, . and they could also waive their right to have the note actually exhibited.” 214 S.W.2d 616-617. In neither of those cases is it shown that the note in litigation contained any waiver of presentment for payment or notice of acceleration.

Parenthetically, we note that no failure of presentment of the note as a prerequisite to payment of an installment or of Watkins’ right to mature the note without actual notice was affirmatively pleaded by Sylvester. Unless the issues were tried by consent, it would appear that the matters have been waived. Graham & Locke Investments, Inc. v. Madison, 295 S.W.2d 234, 241 (Tex.Civ.App., Dallas 1956, writ ref’d n.r.e.). Nevertheless, Watkins has not raised this waiver issue, and it is not determinative of our resolution of the query.

The note and security agreement executed by Sylvester contained the provisions, heretofore recited, expressly waiving presentment of the note for payment, demand for payment and notice of intention to accelerate the maturity. The Code rule is that presentment or notice is entirely excused when the party to be charged has waived it expressly either before or after the due date. V.T.C.A., Bus. & C. § 3.511(b)(1) (1968). Additionally, the exact contention advanced by Sylvester has been decided adverse to his position. The note at issue in Interstate Life Insurance Company v. Turner, 371 S.W.2d 913 (Tex.Civ.App., Waco 1963, writ ref’d n.r.e.), contained the identical waiver provisions that are in the note before us. The same argument Sylvester makes here was made there. In refusing to apply the rule expressed in Faulk v. Futch, supra, where no express waiver was contained in the note, the court held that demand and presentment were not necessary in view of the express waiver. 371 S.W.2d 916. For a like holding where the note contained waiver provisions, see Whalen v. Etheridge, 428 S.W.2d 824, 827 (Tex.Civ.App., San Antonio 1968, writ ref’d n.r.e.).

Obviously, then, where the parties have provided by their contract for the express waiver of presentment and notice of acceleration, the court should not write the contrary provisions into the note. Thus, presentment and notice of acceleration were not required of Watkins before he could accelerate the maturity of the installment note upon Sylvester’s default; and a judgment disposing of all the matters should have been rendered instead of the declaratory judgment. To this extent, Sylvester’s first two points and Watkins’ two cross-points are sustained. The sustention obligates us to render the judgment that the trial court should have rendered. Rule 434, Texas Rules of Civil Procedure.

The trial court’s judgment is reformed to provide that, in lieu of no judgment for money, Walter C. Watkins recover of and from Billy Sylvester the sum of $65,492.30, with interest thereon at the rate of ten percent as provided in the note from 8 September 1975 until paid, and in all other respects the judgment is affirmed. It is so ordered.


author: JAMES, Justice.

text:
    James C. REID, Appellant, v. Sue Carole REID, Appellee.
    No. 5596.
    Court of Civil Appeals of Texas, Waco.
    June 30, 1976.
    Rehearing Denied July 22, 1976.

      Clark, Fisher, Gorin, McDonald & Rag-land, Boyd Mangrum, Waco, for appellant.
    Dan Francis, Waco, for appellee.
   OPINION

JAMES, Justice.

This is a suit for child support. Plaintiff-Appellee Sue Carole Reid, the natural mother, brought this suit against Defendant-Appellant James C. Reid for a court order for child support of Steve Russell Reid, a fourteen year old boy.

Trial was to a jury which found: (1) that the child was born to Plaintiff and Defendant on or about November 12,1961; and (2) that Defendant should be required to pay $80.00 per month child support until the child reaches eighteen years of age, or until further orders of the court.

Pursuant to and in harmony with the jury verdict, the trial court entered judgment that Defendant James C. Reid be required to pay $80.00 per month child support beginning December 15, 1975, with a like payment on the 15th day of each succeeding month thereafter until the child shall have become eighteen years of age, from which judgment the Defendant appeals. We affirm.

Plaintiff and Defendant were formerly husband and wife, having been divorced by a judgment of the 19th District Court of McLennan County, Texas, dated June 30, 1961. In said judgment the court found that Sue Carole Reid was at that time pregnant and expecting a child, and in said judgment provided that when said child was born, that Sue Carole Reid would have full custody of same with James C. Reid being granted reasonable visitation rights, and ordered James C. Reid to pay “all reasonable and necessary hospital and doctors’ bills incurred for the delivery and hospitalization of said child,” and further ordered James C. Reid to pay $150.00 attorney’s fees for Sue Carole Reid’s attorney. Both James C. Reid and Sue Carole Reid were personally present in court at the time their divorce case was heard and judgment pronounced, and each was represented by an attorney .present in court at said time.

In the case at bar the trial court submitted two issues to the jury worded as follows, with the jury’s answers appended thereto:

“Issue No. 1: Do you find from a preponderance of the evidence that Steve Russell Reid was born to Sue Carole Reid and James Clarence Reid on or about November 12, 1961?
Answer “we do” or “we do not.”
ANSWER: We do.
“If you have answered the above issue “We do” then answer the following issue; otherwise do not answer the following issue:
“Issue No. 2: Find from a preponderance of the evidence the amount of money per month, if any, which James C. Reid should be required to commence paying for the support of the child, Steve Russell Reid, until said child reaches the age of 18 years or until further orders of this court.
“Answer in dollars and cents.
ANSWER: $80.00.”

Appellant asserts five points of error. Points 1, 2, and 4 complain of the trial court’s refusal to submit issues to the jury on what Appellant calls “controlling issues” which are respectively as follows: (1) the amount of money that the child may reasonably require for his support and maintenance; (2) the Appellant’s ability to pay child support to or on behalf of the child; and (4) as to whether “there is presently alive a child born of the marriage.” We overrule these points.

Appellant timely objected and excepted to the court’s charge concerning the above matters, and carried them forward in his amended motion for new trial.

Article 11.13 of the Family Code provides:

“(a) In a suit affecting the parent-child relationship, except in a suit in which adoption is sought, any party may demand a jury trial.
“(b) The court may not enter a decree that contravenes the verdict of the jury, except with respect to the issues of the specific terms and conditions of access to the child, support of the child, and the rights, privileges, duties, and powers of conservators, on which issues the verdict, if any, is advisory only.” (emphasis supplied).

Rule 277, Texas Rules of Civil Procedure, among other things, provides:

“It shall be discretionary with the court whether to submit separate questions with respect to each element of a case or to submit issues broadly. It shall not be objectionable that a question is general or includes a combination of elements or issues. Inferential rebuttal issues shall not be submitted. The placing of the burden of proof may be accomplished by instructions rather than by inclusion in the question.”

Rule 279, Texas Rules of Civil Procedure, provides in part as follows: “ . Where the court has fairly submitted the controlling issues raised by such pleading and the evidence, the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issue.”

We are of the opinion, and hold, that the trial court fairly submitted the controlling issues herein, and that the Appellant’s objections contained in points 1, 2, and 4 are “various phases or different shades” of the issues submitted. The issues submitted are in our opinion in keeping with the letter and spirit of Rule 277. Appellant’s points 1, 2 and 4 are accordingly overruled.

Appellant’s point 3 complains that there has been no finding of “a material and substantial change of circumstances and no finding that it would be in the best interests of any child.” However, Appellant made no objection or exception to the court’s failure or refusal to submit an issue or issues to this effect, and has thereby waived this point. Rule 279, Texas Rules of Civil Procedure.

Appellant’s fifth and last point complains that the jury’s answer to Special Issue No. 1 is not supported by factually sufficient evidence. We overrule this point.

As stated, the jury found in answer to Special Issue No. 1 that the child Steve Russell Reid was born to Sue Carole Reid and James Clarence Reid on or about November 12, 1961.

At the time of the divorce Sue Carole Reid was pregnant and expecting a child. She and Appellant were both personally present in court, each being represented by his own lawyer. In the divorce case, Sue Carole Reid was the Defendant and Cross-Plaintiff, and he (James C. Reid) was personally served with Defendant’s Original Answer and Cross-action, in which she alleged and made known her pregnant condition. The court after hearing evidence granted the divorce, found that Sue Carole Reid was expecting a child, made provisions for custody and visitation to be effective at the time of the child’s birth, and ordered James C. Reid to pay the doctor and hospital bills incident to such childbirth.

Sue Carole Reid testified that the child was born at Wichita Falls, Texas, on November 12, 1961, about four and a half months after the date of the divorce decree and that the child was a son and was named Steve Russell Reid. She testified in considerable detail about events that took place in the child’s life from his birth to the present time, the details of which are not necessary to be recounted here. At the time of trial the child was fourteen years old. During all the years James C. Reid never came about or saw the child, and never paid any of the doctors’ or hospital bills as ordered by the court in the divorce judgment, nor did he pay Mrs. Reid’s attorney’s fee as ordered in said judgment.

Appellant James C. Reid testified that he never knew Sue Carole Reid was expecting a child at the time of the divorce hearing, and had no knowledge that she may have borne him a son until the suit at bar seeking child support was filed. He also testified that he had no knowledge of the contents of the divorce judgment, and had never seen a copy of same until the instant suit for child support was filed. This testimony was hard to square with the fact of his presence in court at the time the divorce case was heard. At no time in his testimony did Appellant ever deny that Steve Russell Reid was his child.

We have carefully weighed the evidence in accordance with the test laid down by our Supreme Court in In Re King’s Estate (1951) 150 Tex. 662, 244 S.W.2d 660, and find the evidence to be factually sufficient to support the jury’s answer to Special Issue No. 1. In fact, the evidence is practically undisputed that Appellant was the father of Steve Russell Reid. Appellant’s fifth and final point is overruled.

For the reasons hereinabove stated, judgment of the trial court is affirmed.

AFFIRMED.