author: PRESLAR, Chief Justice.

text:
    TEXAS EMPLOYMENT COMMISSION, Appellant, v. Estela R. MARTINEZ, Appellee.
    No. 6524.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 29, 1976.

      John L. Hill, Atty. Gen., David M. Kendall, Jr., 1st Asst. Atty. Gen., J. H. Broad-hurst, Michael E. Stork, Asst. Attys. Gen., Austin, for appellant.
    Jimmy Stewart, Legal Aid Ass’n, LuEllen Abraham, Barry Snell, Legal Aid Ass’n, San Antonio, for appellee.
   OPINION

PRESLAR, Chief Justice.

This case involves the validity of Texas Employment Commission policies with regard to disqualification to receive unemployment compensation because of pregnancy and because of misconduct which caused termination of employment. The question discussed is mootness of the claim for injunction. The trial Court granted a permanent injunction and we reverse and render that portion of the judgment and affirm the remainder.

Estela R. Martinez, Appellee herein, brought suit against the Texas Employment Commission seeking a recovery of benefits denied her by the Commission and seeking a permanent injunction against certain alleged policies of the Commission. Following her discharge from a bank, she made application for unemployment benefits and the Commission ruled that because she was terminated from her employment due to misconduct, she would be disqualified from receiving benefits for a period of six weeks; also, because she was pregnant, she was held to be ineligible to receive benefits during the final three months of her pregnancy and for six weeks after the birth of her child. Her damages were stipulated to be $228.00 for the six weeks’ disqualification and $556.00 for the pregnancy ineligibility. Prior to trial, the $556.00 was paid, and the judgment awarded $228.00 for the six weeks’ disqualification. The Court found that the Texas Employment Commission had a policy of giving a six weeks minimum disqualification in all cases in which employee misconduct was found rather than imposing a disqualification of one week to twenty-six weeks as provided by the Statute. Tex.Rev.Civ.Stat.Ann. art. 5221b — 3(b). The Court also found that the Commission had a statewide policy of disqualifying women from receiving unemployment compensation benefits from the last trimester of pregnancy until six weeks after childbirth, and that same was in violation of the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, and also in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. The Court permanently enjoined and restrained the Commission from pursuing either of the foregoing practices or policies. Prior to trial, the Plaintiff Martinez filed a supplemental petition stating that she had been informed that the Commission had changed both of its policies and if such were true and no injunction would then lie, then she asked the Court for a declaratory judgment that the Commission had been guilty of such policies in the past. The Court granted this declaratory relief in its judgment in addition to the injunction and damages.

Generally, it is the purpose of in-junctive relief to halt wrongful acts threatened or that are in the course of accomplishment, rather than to grant relief against past actionable wrongs or to prevent the commission of wrongs not eminently threatened. 31 Tex.Jur.2d Injunctions, Sec. 2. In the case before us, the evidence is that the Defendant, Texas Employment Commission, had revised its policies concerning the matters complained of by the Plaintiff herein, and there is nothing in the record to indicate that there will be a resumption of such policies in the future. Under such circumstances, a permanent injunction is not in order. The general rule is that past and discontinued acts will not support injunctive relief if there is nothing to indicate a probability that they will recur. 31 Tex.Jur.2d Injunctions, Sec. 22, at 69; Texas Pet Foods, Inc. v. State, 529 S.W.2d 820 (Tex.Civ.App., Waco 1975, writ ref’d n.r.e.). In the case of Texas State Board of Registration for Professional Engineers v. Dalton, Hinds & O’Brien Engineering Co., 382 S.W.2d 130 (Tex.Civ.App., Corpus Christi 1964, no writ), it was held that where there was no direct allegation or proof that there was any probability of the resumption of such acts, there was a total failure to make out a case for permanent injunction. Cited as supporting that rule are San Antonio Public Service Co. v. Long, 72 S.W.2d 696 (Tex.Civ.App., San Antonio 1934, no writ); Spears v. City of South Houston, 136 Tex. 218, 150 S.W.2d 74 (1941); 31 Tex.Jur.2d Injunctions, Secs. 22, 23; and 56 Tex.Jur.2d Trial, Sec. 214. Plaintiff brought this suit solely in her own behalf, seeking only to enforce her private right, and not alleging that hers was a class action or brought on behalf of others similarly situated. There is no hint or suspicion in the record before us that the Commission is threatening a revival of its policies against her.

As noted, Plaintiff filed a supplemental petition stating that she had been informed of the change of policies, and if the Court found such change of policies, then an injunction would not lie; in the alternative, she requested a declaratory judgment that the Defendant had been guilty of the policies in the past. As noted earlier in this opinion, the Court granted both the injunc-tive relief and the declaratory judgment. We reverse and render that portion of the judgment granting the injunction and affirm that portion of the judgment granting declaratory relief. In doing so, we have some question as to whether asking a Court to declare that past acts were in fact done presents a present justiciable controversy between the parties within the meaning of the Declaratory Judgment Act. Tex.Rev. Civ.Stat.Ann. art. 2524 — 1. However, error in that regard is not assigned by the Appellant.

That portion of the judgment granting a permanent injunction is reversed and judgment is here rendered dissolving same. In all other matters, the judgment is affirmed.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Larry GOSS, et ux., Appellants, v. MID-WESTERN LIFE INSURANCE COMPANY, Appellee.
    No. 988.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 30, 1976.
    Rehearing Denied Jan. 27, 1977.

      Blake Bailey, Wellborn & Houston, Henderson, for appellants.
    0. Joseph Damiani, Houston, for appellee.
   McKAY, Justice.

This case involves the interpretation of an exclusion in an insurance policy. Appellants, Larry Goss and wife, Ann Goss, filed suit on a family hospitalization insurance policy issued by appellee, Mid-Western Life Insurance Company of Texas. At the close of plaintiff-appellants’ evidence, defendant-appellee made a motion for directed verdict which was sustained by the court. The court entered judgment that Mr. and Mrs. Goss take nothing by their suit, from which judgment they appealed.

On November 18,1974, appellants applied for a family hospitalization plan from ap-pellee through its agent, Emmett Knowles. The policy became effective February 1, 1975. At the time the policy was applied for Knowles inquired about the prior medical history of Mrs. Goss. She told him that “I had had trouble with my stomach.” This prompted Knowles to add an exclusion of “any disease or disorder of the gastro-intes-tinal tract, any complications thereof, treatment or operation therefor.” Later, on February 16, 1975, Mrs. Goss had an appendicitis attack, and she had an appendectomy. Mid-Western refused to pay her medical and hospital bills, and this suit resulted.

Upon trial of the matter the sole issue, other than attorney’s fee, was whether the appendicitis attack was excluded under the above provision, or in other words, whether the appendix was part of the “gastro-intes-tinal tract”. The appellants produced two expert medical witnesses, Dr. Marlin T. Braswell and Dr. F. Donald Haygood. When Dr. Braswell was asked to explain in detail all of the parts of the human anatomy which are covered by the phrase “gas-tro-intestinal,” he answered:

“The gastro-intestinal tract begins with the intake of food, which passes across the lips and into the oral cavity, the mouth and is propelled down the pharynx by the tongue, the food then goes into the esophagus, and is propelled into the stomach in which it is mixed with enzymes and acids of digestion. It is then emptied into the small bowel, where digestion is completed, and the contents of the food then empties into the colon, which is propelled into the rectum and evacuated through the anus. This is the gastro-in-testinal system, there are allied associated parts of the gastro-intestinal system, which would include the pancreas and the gall bladder and ducts, which are included in the gastro-intestinal system.”

Dr. Haygood, when asked roughly the same question, replied:

“Well, gastro means stomach. Intestinal means intestine, so the word ‘gastrointestinal’ could strictly be limited to mean the stomach and the intestine, although when one speaks of the gastro-in-testinal or GI tract, this generally refers to the entire alimentary canal, which starts with the mouth, the pharynx, the esophagus, the stomach, the entire small intestine, the entire large intestine, the rectum and ending at the anus. Embryo-logically, the appendix rises with the cecum, which is the right portion of the large intestine, and it communicates with and is a part of the gastro-intestinal tract.”

Dr. Braswell also diagnosed her prior stomach problems as (1) “acute interitis,” occurring in April, 1974, and (2) “chronic cholocystitis and rheumatoid arthritis,” occurring in September, 1974. Both doctors testified that an appendicitis attack cannot be forecast from previous gastro-intestinal disorders. Upon objection of appellee, the court excluded the testimony of both Mr. and Mrs. Goss as to (1) what they thought gastro-intestinal meant, and (2) what Knowles had said about it before they signed the contract on the basis that such was nonexpert testimony in an area where expert testimony is needed and that such testimony was hearsay, respectively. The court also excluded the testimony of Knowles as to what “gastro-intestinal” meant on the objection of appellee that (1) such would violate the parol evidence rule, (2) it would be giving an opinion as to medical terminology without the proper predicate being laid, and (3) the agent had no right by law to “abrogate, modify or make any contract with a particular insured,” on authority of Article 21.04 of the Insurance Code, V.A.C.S., which provides a life insurance agent “shall not have the power to waive, change or alter any of the terms or conditions of the application or policy.” At the conclusion of the appellants’ evidence the court granted a directed verdict for appellee.

Appellant brings two points of error. The first complains that the trial court erred in sustaining appellee’s motion for directed verdict “which was based on the wording of the exclusion provision of the policy, which excluded payment for medical expenses incurred as a result of gastro-in-testinal disorders”. They contend that enough evidence was admitted to support the submission of the issue to the jury. We agree.

In considering whether a directed verdict was proper, an appellate court must view the evidence of the complaining party in its most favorable light in support of the finding of the vital fact, considering only the evidence and the inferences which support the finding and rejecting the evidence and the inferences which are contrary to the finding. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962). In order to sustain the action of a trial court in granting a directed verdict, it must be determined that there is no evidence of probative value upon which the jury could have found on the issue in question. Douglass v. Panama, Inc., supra. Additionally, expert opinion testimony does not establish a fact as a matter of law. Board of Fireman’s Relief & Retirement Fund of Houston, Trustees v. Marks, 150 Tex. 433, 242 S.W.2d 181, 185 (1951). It is not conclusive, but merely raises an issue of fact to be submitted to the jury, who in determining the facts, are not bound by the opinions of the witnesses. Luttes v. State, 159 Tex. 500, 324 S.W.2d 167, 189 (1958); 24 Tex.Jur.2d, Evidence, Section 549, pp. 42-45.

Viewing the evidence with these rules in mind, we are of the opinion that appellants did raise a fact issue as to the meaning of the term “gastro-intestinal tract”. Dr. Braswell carefully described the parts of the GI tract without naming the appendix. He neither included it nor excluded it. Dr. Haygood testified that under one of the two meanings of the term “gastro-intestinal tract,” the appendix would not be included, but under the other it would be included. Both doctors testified that appendicitis could not be forecast from prior gastro-intestinal disorder. Viewing this evidence in a light most favorable to appellants and disregarding all other evidence, a jury could find that the appendix was not part of the “gastro-intestinal” tract. Also it must be pointed out that the only testimony allowed on the meaning of the term was elicited from medical experts. Even if this testimony could only be interpreted as meaning that the appendix was part of the gastro-intestinal tract, such was not conclusive of the fact, and would not command an instructed verdict. We hold that it was error for the trial court to withdraw this question from the jury.

Appellants’ second point complains that the trial court erred in excluding the testimony of Larry Goss, Ann Goss and Emmett Knowles as to what they intended the term “gastro-intestinal tract” to mean at the time of application for the insurance policy. Since we have disposed of the appeal on the first point, consideration of this point is not necessary.

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


author: DUNAGAN, Chief Justice.

text:
    FIDELITY & CASUALTY COMPANY OF NEW YORK et al., Appellants, v. Mildred and T. J. JEFFERIES, Appellees.
    No. 981.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 30, 1976.
    Rehearing Denied Jan. 27, 1977.

      Henry Stollenwerck, Dallas, for appellants.
    Gary R. Stephens, Stephens & Stephens, Dallas, for appellees.
   DUNAGAN, Chief Justice.

This action was brought by appellees, Mildred Jefferies and T. J. Jefferies (formerly husband and wife), against appellants, Fidelity & Casualty Company of New York and Royal Indemnity Company, seeking to recover under two fire insurance policies for the loss of the contents of a building located at 6410 Gaston Avenue, Dallas, Texas. Each of the fire insurance policies was in the principal amount of Ten Thousand Dollars ($10,000.00) and each contained the usual condition suspending or restricting insurance coverage when certain contingencies occurred. In particular, one such limiting condition provided for no coverage following a change in ownership of the insured property. Admittedly, both policies were in full force and effect at all times material herein.

Appellants by amended answer invoked several conditions of the policies suspending or restricting coverage, but specifically invoked and principally relied upon the exclusionary provision noted above concerning change of ownership. Appellees by amended pleadings pled that appellants had waived the change in ownership provision and that they were estopped to claim the forfeiture.

As shown by the record appellees, T. J. Jefferies and wife, Mildred Jefferies, were the owners of a restaurant and club known as “The Palace”, together with the contents therein located at 6410 Gaston Avenue in Dallas, Texas, having acquired it in 1958. The contents consisted of a beer box, mirrors, steel sink, bar stools, folding chairs, leather chairs, numerous tables, a juke box, discotheque speakers, pool tables, pinball machines, and other similar articles used in the operation of the restaurant and club. The value of the contents was alleged by appellees to be $20,000.00. The two fire insurance policies were issued to appellee Mildred Jefferies by A. J. Rogers, the local recording agent for both insurance companies, on or about August 28, 1972, for a policy period of one year, all premiums having been paid at the time of the loss. Each insurance policy insured the contents against fire and lightning with extended coverage in the sum of $10,000.00 or a total coverage of $20,000.00. As hereinabove indicated the policies contained identical restrictive provisions excluding coverage following a change in ownership of the insured property.

By an instrument executed June 14,1973, appellee T. J. Jefferies, as seller, for a consideration of $15,391.42, part in cash and the remainder deferred with interest, sold to I.T.G. Corporation, Evan Ritter, Michael Keegan and Michael Merritt the aforesaid business located at 6410 Gaston Avenue together with the “assets” listed in an inventory forming a part of the written memorandum of sale. Such contract contained a provision to the effect that the title and ownership of the property did not pass from the seller to the buyer until the note given in consideration therefor was paid. Most of the contents of the building were listed in the inventory. Some items of the contents, however, form no part of the sale and they were specifically identified and excluded. The deferred payments were to be made to appellees at the rate of $300.00 per month. Apparently none of these payments had been made at the time of the loss. The contract authorized the buyer to take possession of the business and contents on May 21, 1973, and the evidence shows that they did so. The buyer also agreed to carry contents insurance acceptable to seller in the sum of $14,000.00, but the record does not show whether such insurance was ever obtained.

On August 1, 1973, the business and contents burned, resulting in a total loss. There was testimony that the value of the contents which had been “sold” at the time of the fire was $15,000.00 and the value of the items not “sold” was $11,033.00.

Appellee Mildred Jefferies testified that shortly after the contract with the buyer had been executed she had a conversation with the insurance agent, Rogers, wherein she advised him that the business had been sold and that she desired the ownership changed in the policies showing her as a lienholder. According to Mrs. Jefferies the agent advised her that inasmuch as the policies would soon be up for renewal she should leave them as then written and that she “was covered.” There is no other evidence in the record with reference to agent Rogers.

In answer to the issues submitted the jury found (a) that the reasonable cash market value of the contents destroyed in the fire was $15,000.00; (b) that appellee Jefferies at the time of the fire owned contents therein of the reasonable cash market value of $5,000.00; (c) that after the sales contract of June 14, 1973 had been executed, but before the fire loss in question, appellee Mildred Jefferies requested the agent A. J. Rogers to change the ownership of the policies and protect her interest therein, but the agent represented to her that all of the contents of the building were covered; (d) that the reasonable cash market value of the contents described as the assets sold in the sales contract and destroyed in the fire was $10,000.00. The jury failed to find that at the time of the fire appellees owned all of the contents of the 6410 Gaston Avenue building.

Appellees timely filed their Motion For Judgment on the Verdict and for Judgment N.O.V. which was overruled, and the Court entered Judgment for appellees against each appellant for the sum of $7,500.00 with accrued interest, or a total of $15,000.00, together with accrued interest in the total amount of $1,800.00.

Appellants bring forward three Points of Error asserting that the trial court erred in rendering judgment for appellees because (a) appellees failed to prove no change of ownership of the insured contents and no ultimate issues were submitted by appellees on the issues of waiver and estoppel; (b) that the direct loss to appellees, as found by the jury, was $5,000.00, and (c) the trial court erred in submitting Special Issues Nos. 6 and 7 since they were merely eviden-tiary and not ultimate issues and could form no basis for a judgment for appellees.

Inasmuch as appellants pled change of ownership of the insured property as a defense to appellees’ action, if change of ownership was raised by the evidence, the burden of proof was on the appellees to negative the application of such exclusionary provision. Sherman v. Provident American Insurance Company, 421 S.W.2d 652 (Tex.1967); Hardware Dealers Mutual Insurance Company v. Berglund, 393 S.W.2d 309 (Tex.1965). The validity of such a provision limiting or restricting coverage is not open to question. The reason for such clauses is that a contract of property insurance is considered to be personalized in its risks and the courts are reluctant to require insurers to assume dangers not contemplated and to protect persons with whom no contract was ever made. Such provisions limiting coverage are reasonable and valid. Bucher v. Employers Casualty Company, 409 S.W.2d 583 (Tex.Civ.App.— Fort Worth 1966, no writ); Home Insurance Company v. Brownlee, 480 S.W.2d 491 (Tex.Civ.App. — Eastland 1972, no writ); Continental Insurance Company v. Michaels, 13 S.W.2d 465 (Tex.Civ.App.— Texarkana 1929, no writ).

To escape the consequences of the alleged change in ownership, appellees pled that such exclusionary provision had been waived by appellants and that they were estopped to rely upon it. Unless no change in ownership had been conclusively established in the evidence, it was incumbent upon appellees to submit to the jury and obtain favorable findings on the issues of waiver and estoppel in order to avoid the consequences of the exclusionary provision. Rule 279, T.R.C.P.

Appellees assert it was conclusively established as a matter of law that there had been no change of ownership of the insured property. They rely upon the provisions of the contract of sale dated June 14, 1973, and Section (b) of Article 2.401, Texas Business and Commerce Code. The above section of the Code reads as follows:

“(b) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest

The contract of sale dated June 14, 1973, did contain a provision to the effect that the title and ownership of the property did not pass from appellees to the buyer until the note described therein was paid. However, actual delivery of the contents of the building to buyer occurred on May 21, 1973, and buyer on that date assumed physical possession of the same and commenced the operation of the business. From the language used it was clearly the intent of the contract of sale to reserve to appellees a security interest only in the property. The risk of loss by fire therein was shifted to parties with whom appellants had no contract. Appellees had completed their performance of the contract when they delivered the physical possession of the contents to buyer who was placed in possession of the building and contents. Moreover, the contract further obligated the buyer to obtain contents insurance although it is not shown that buyer did so. The fact that appellees reserved a security interest in the property did not have the effect of establishing that there had been no change in ownership of the insured contents. There are numerous references in the contract that the contents were “sold” to the buyer. Appellee, Mildred Jefferies, testified that the contents had been sold to the buyer, who took possession and control and commenced operation of the business. Appel-lees’ interest in the contents was reduced from that of owner to that of mortgagee. This resulted in a material change in ownership of the insured contents. International Insurance Company v. Jataine, 495 S.W.2d 309 (Tex.Civ.App. — Corpus Christi 1973, n. r. e.). We are of the opinion that the provisions of the contract of June 14, 1973, when viewed in light of Section (b) of Article 2.401, Texas Business and Commerce Code, did not have the effect of establishing as a matter of law that no change in ownership of the insured property had occurred.

This brings us to a consideration of whether appellees met their burden to obtain favorable jury findings on waiver and estoppel. In this connection two Special Issues only were submitted to the jury and affirmative answers were made to each. Under Rule 279, T.R.C.P., the court is required to submit only the “controlling issues” made by the pleadings and the evidence. A “controlling issue” is synonymous with “ultimate fact or issue” and has been defined as one essential to the right of action or matter of defense. Wichita Falls & Oklahoma Railroad Company v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940). If such an issue is answered favorably to the theory in which it is presented, it will support a judgment. Simmons Motor Company v. Mosley, 379 S.W.2d 711 (Tex.Civ.App.— Austin 1964, n. r. e.). In our opinion neither Special Issue No. 6 nor Special Issue No. 7 were ultimate or controlling issues since neither submitted the matter of waiver or estoppel and will not support a judgment for appellees. “Waiver” is held to be an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it. Massachusetts Bonding & Insurance Company v. Orkin Exterminating Company, 416 S.W.2d 396 (Tex.1967). Estoppel on the other hand consists of' numerous elements as stated in Astow Sign Company v. Sullivan, 518 S.W.2d 420 (Tex.Civ. App. — Corpus Christi 1974, n. r. e.) at page 426:

“The essential elements of estoppel are: (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) to a party without knowledge, or the means to acquire it; (4) with the intention that it should be acted on; and (5) the party to whom it was made must have relied or acted on it to his prejudice.”

See also: Gulbenkian et al v. Penn, 151 Tex. 412, 252 S.W.2d 929 (Tex.1952).

It is apparent that the controlling issues on waiver and estoppel were not submitted in Special Issue No. 6 or Special Issue No. 7. These issues were evidentiary only and will not support a judgment for appellees. They are considered immaterial issues and may be disregarded. Grubb v. Grubb, 525 S.W.2d 38 (Tex.Civ.App. — El Paso 1975, n. r. e.); Perales v. Braslau’s Furniture Company, 493 S.W.2d 638 (Tex. Civ.App. — Corpus Christi 1973, n. r. e.); Mills v. Withers, 483 S.W.2d 339 (Tex.Civ. App. — Houston [1st Dist.] 1972, n. r. e.). If it can be said that the issues submitted consist of one or more elements of one ultimate issue, in our opinion there can be no deemed findings favorable to appellees herein upon omitted issues since Rule 279, T.R.C.P., requires that there be evidence in the record to support the omitted issues. There is none supporting all of the elements of either waiver or estoppel. It follows that appellants’ three points of error should be sustained. Under the findings of the jury, however, the appellees proved ownership in the contents of the building to the extent of $5,000.00 and, accordingly, they are entitled to judgment for said amount together with interest at the legal rate.

Judgment of the trial court is reversed and judgment is here rendered that appel-lees recover of and from appellants jointly the total sum of $5,000.00 together with legal interest from the date of the filing of defendants-appellants’ original answer denying liability. Lloyds v. Hale, 405 S.W.2d 639, 643 (Tex.Civ.App. — Amarillo 1966, writ ref’d n. r. e.).

Reversed and rendered.

      . SPECIAL ISSUE NO. 6
      Do you find from a preponderance of the evidence that after plaintiff Jefferies entered into the contract dated June 14, 1973 (Defendant’s Exhibit 1) Defendant’s insurance agent A. J. Rogers, before the fire in question, represented to Mildred Jefferies that all of the personal property contents of the 6410 Gaston Avenue building were covered by the insurance policies in question?
      Answer “Yes” or “No”.
      ANSWER: Yes
      If you have answered Special Issue No. 6 “Yes” then answer the following special issue; otherwise, you need not answer same.
      SPECIAL ISSUE NO. 7
      Do you find from a preponderance of the evidence that before the defendant’s insurance agent A. J. Rogers made such representation, if any you have heretofore found in answer to the preceding issue, Mildred Jefferies requested of him that the policies in question be changed to protect plaintiff’s interest in any of the personal property affected by the contractual agreement of June 14, 1973 (Defendant’s Exhibit 1)?
      Answer “Yes” or “No”.
      ANSWER: Yes


author: BISSETT, Justice.

text:
    W. R. INGRAM, Appellant, v. D. C. RACHAL FORD, INC., Appellee.
    No. 1122.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 30, 1976.
    Rehearing Denied Jan. 26, 1977.

      H. H. Rankin, Jr., McAllen, for appellant.
    John C. North, Jr., North, White & Black-mon, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is a venue case. D. C. Rachal Ford, Inc. brought suit against W. R. Ingram for foreclosure of a security interest (and order of sale) on an automobile, which allegedly arose out of a written contract for the repair of the automobile. Suit was filed in Nueces County, Texas. W. R. Ingram duly filed a plea of privilege to be sued in Hidal-go County, Texas, where he was domiciled. D. C. Rachal Ford, Inc., hereinafter called “appellee”, controverted the plea of privilege and asserted that venue was maintainable in Nueces County, Texas under Subdivisions 5(b) and 7 of Tex.Rev.Civ.Stat.Ann. art. 1995. The trial court, after a non-jury trial overruled the plea of privilege. W. R. Ingram, hereinafter called “appellant”, has appealed.

Findings of fact and conclusions of law were neither requested nor filed. The appellant, in points 1 through 6, in summary, contends that there is neither legal nor factual basis for overruling his plea of privilege because the “appellee’s proof did not show a written contract, but merely a parol agreement with a signed repair order”, which cannot “suffice as a written contract for venue purposes”. The appellee’s position is that the proof shows conclusively that the action is “founded upon a contractual obligation of the appellant to pay money arising out of a consumer transaction for goods and services intended primarily for personal use which was signed by the appellant in Nueces County, Texas”.

Subsection (b) of Subdivision 5 of Tex. Rev.Civ.Stat.Ann. art. 1995, enacted by Acts 1973, 63rd Legis, p. 489, ch. 213, § 1, effective August 27, 1973, reads as follows:

“(b) In an action founded upon a contractual obligation of the defendant to pay money arising out of or based upon a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household or agricultural use, suit by a creditor upon or by reason of such obligation may be brought against the defendant either in the county in which the defendant in fact signed the contract, or in the county in which the defendant resides at the time of the commencement of the action. No term or statement contained in an obligation described in this subsection shall constitute a waiver of this provision.”

“Consumer goods” are defined by Tex. Bus. & Comm. Code Ann. § 9.109, as follows:

“Goods are
(1) ‘consumer goods’ if they are used or bought for use primarily for personal, family or household purposes;”

The appellant, on or about June 10, 1975, entered the appellee’s place of business in Robstown, Nueces County, Texas, and discussed the matter of repairing his automobile that had been damaged in a collision which occurred near the appellee’s place of business. The automobile sustained considerable visible damage, but neither the exact amount thereof nor the cost to repair the vehicle was then known, nor could those factors be established with any degree of certainty until further examination of the automobile had been made. The discussion which the appellant had was with Mr. Bob Lacey, a vice president of the appellee corporation. It lasted about an hour and a half. Lacey testified:

“. . . We talked about his car and he said: ‘fix it’ . .”

Whereupon, Lacey obtained a copy of the appellee’s printed “Repair Order” that had printed at the top “D. C. RACHAL FORD, INC., Box 1109, Robstown, Texas, 78380”, and the same was then signed by the appellant in the appellee’s place of business in Robstown, Texas.

The “Repair Order” is a printed form, which contains many blanks. The only blanks that were actually filled in at the time the order was signed by the appellant were those pertaining to the appellant’s name, address, the make, year and model of the automobile. Later, the words “repair per estimate” were written in the order.

The following printed words appear at the bottom of the “Repair Order”, immediately above the appellant’s signature, to wit:

“I hereby authorize the above repair work to be done along with necessary materials. You and your employees may operate above vehicle for purposes of testing, inspection or delivery at my risk. An express mechanic’s lien is acknowledged on above vehicle to secure the amount of repairs thereto. You will not be held responsible for loss or damage to vehicle or articles left in vehicle in case of fire, theft, accident or any other cause beyond your control.”

Lacey further testified that the appellant indicated to him that the automobile was his car and was used by him for “personal services”. With respect to exactly what was said at or about the time that the appellant signed the “Repair Order”, Lacey, in response to the questions asked him, said:

“Q Did he tell you to repair the automobile and signed at the time?
A Yes sir.
Q Signed that contract?
A Yes sir.
Q The repairs that you testified about did that include parts that were to be needed to repair the automobile, labor and other improvements?
A Yes sir, it did. Our repair orders are repairs per estimate. It is impossible at the time that Mr. Ingram signed the repair order to sit down and itemize the repair order. In other words, we cannot tell what materials are to be used on that car until the job is completed. An estimate is only an estimate.”

The repairs totalled $868.14. After the automobile had been repaired, the appellant called at the appellee’s place of business, made a thorough examination of the automobile, and asked “for permission to road test the car”. He assured Mr. James O’Steen, the appellee’s service manager, that “he was going to take it a short distance and come back and settle matters with us”. The appellant did not return with the automobile, nor did he pay the appellee anything on the repair bill.

Where findings of fact and conclusions of law were neither requested nor filed, the trial court’s judgment should be affirmed if it can be upheld on any legal theory finding support in the evidence. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex. Sup.1962); Mobile County Mutual Insurance Company v. Jacobs, 531 S.W.2d 436, 438 (Tex.Civ.App. — Corpus Christi 1975, no writ). Every issue of fact raised by the evidence will be presumed to have been found in appellee’s favor. See James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323 (1959).

The “Repair Order” is in writing. It expressly authorized the appellee to repair the automobile, which was particularly described therein. It expressed the intentions of the parties in such a manner as to be capable of understanding. Bendalin v. Delgado, 406 S.W.2d 897 (Tex.Sup.1966). It is sufficiently certain to enable a court to determine the legal obligations of the parties thereto, since the details thereof may be explained by the surrounding facts and circumstances. Grimsley v. Life Ins. Co. of Virginia, 154 S.W.2d 196 (Tex.Civ.App.— Austin 1941, writ ref’d w. o. m.); McCaskey v. Schrock, 225 S.W. 418 (Tex.Civ.App. — El Paso 1920, no writ); 13 Tex.Jur.2d, Contracts, § 99. Failure to specify in detail the repairs that were contemplated did not render the “Repair Order” ineffectual as a contract. The law implies that the repairs are to be made in accordance with what was reasonably necessary at the time the contract was made, and that the appellant is obligated to pay for such repairs. There is no contention that the repairs, as made, were not reasonably necessary. The “Repair Order”, prepared and signed under the facts and circumstances noted, is sufficient to constitute a contract in writing between the parties which imposed upon the appellant a contractual obligation to pay money for the repairs requested by him. The contract was signed in Nueces County, Texas, and the repairs were made in Nueces County, Texas. The evidence that the automobile was owned by the appellant and was used by him for personal services is undisputed.

The transaction here covered is a consumer transaction governed and controlled by Tex.Rev.Civ.Stat.Ann. art. 1995, § 5(b). The trial court properly overruled the appellant’s plea of privilege. Points 1 through 6 are overruled.

It is not necessary for us to consider Subdivision 7 of Tex.Rev.Civ.Stat.Ann. art. 1995, the other exception to the venue statute, which was urged by the appellee in the trial court. Therefore, we do not reach points 7 through 15.

The judgment of the trial court is AFFIRMED.


author: MOORE, Justice.

text:
    J. W. DAVIS et al., Appellants, v. H. MOLSEN & CO., INC., Appellee.
    No. 976.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 30, 1976.

      Jack P. Driskill, McWhorter, Cobb & Johnson, Lubbock, for appellants.
    Thomas A. Blakeley, Jr., Grady, Johnson, Smith & Blakeley, Dallas, for appellee.
   MOORE, Justice.

This suit involves the construction of a written contract. Appellants, J. W. Davis, W. T. Settle, E. J. Pope, Jr., and Kathryn Raymond, instituted suit against appellee, H. Molsen & Co., Inc. (Molsen), to recover the market value of cotton sold and delivered to Molsen under protest, alleging that contracts executed by them did not cover cotton having a micronaire reading of 3.6 and above. Appellants alleged that although they each executed identical written contracts agreeing to sell their entire 1973 cotton crop, the contracts did not extend to, or cover cotton having a micronaire reading above 3.5 or the price to be paid therefor. They alleged that no contract existed as to any of the cotton with a micronaire higher than 3.5, and prayed judgment for the difference between a market value of all cotton delivered having a micronaire reading above 3.5, and the 30 cents per pound which was accepted by them upon delivery under protest. Appellee Molsen answered with a general denial and by the way of an affirmative defense alleged that each of the appellants contracted to sell their entire 1973 cotton crop at certain specified prices up to 30 cents per pound without specifying that higher prices were to be paid for cotton having a micronaire above 3.5. Therefore, Molsen alleged that since the parties failed to stipulate that a higher price would be paid for cotton having a micronaire above 3.5, the contract must be interpreted to mean that the parties agreed that all cotton with a micronaire reading above 3.5 would bring the same price (30 cents per pound) as that agreed to be paid for 3.5 micronaire cotton. In the alternative, Molsen alleged that in the event the court found the contract to be ambiguous the agreement of the parties should be construed to mean that the parties mutually intended that all cotton above 3.5 would bring the same price as 3.5 micronaire cotton and that no premium price would be due and payable on any of the cotton having a micronaire above 3.5. Trial was before a jury. The trial court submitted two identical special issues on behalf of each of the appellants. Special issues 1, 3, 5 and 7, together with the jury’s verdict, may be summarized as follows: Do you find from a preponderance of the evidence that at the time the contract was signed, it was the mutual intent of the parties to contract only for cotton which had a micronaire of 3.5 or below? Answer: “It was not their intent.” Special issues 2, 4, 6 and 8, together with the jury’s verdict, may be summarized as follows: Do you find from a preponderance of the evidence that the parties to the contract failed to fix or agree upon a price for the cotton with a micronaire above 3.5? Answer: “They did not fail to agree.” Judgment was entered on the verdict decreeing that the appellants take nothing. After their motion for new trial had been overruled, appellants perfected this appeal.

We affirm.

Appellants seek a reversal by twelve points of error. In replying to the points, appellee contends that points 1 through 3, point 5 and points 7 through 9 were waived by appellants because the rulings of the trial court of which they complain were not assigned as error in appellants’ motion for a new trial. As we view the record, appel-lee’s contention must be sustained.

In substance, points 1 through 3 complain of the court’s refusing to enter judgment for appellants on the ground that Molsen waived its defense by failing to request and secure findings that because of trade usage appellants agreed to sell all cotton with a micronaire of 3.5 and above at the same price agreed to be paid for 3.5 cotton, and by failing to request and secure findings that the parties mutually intended that all cotton with a micronaire above 3.5 was sold at the same price as 3.5 micronaire cotton. By their fifth point appellants contend that the contract is clear and unambiguous and shows that although the appellants agreed to sell their entire cotton crop, the parties failed to stipulate in the agreement the price to be paid for cotton above 3.5 micro-naires; therefore, they argue that they are entitled to judgment for the reasonable market price for all cotton above 3.5 micro-naires, as a matter of law. In the seventh point appellants assert that there is no evidence to support the jury’s findings that the parties did not intend to contract only for cotton which had a micronaire of 3.5 or below, and in the eighth and ninth points, appellants urge that the trial court erred in failing to disregard the jury’s findings and in failing and refusing to render judgment in their favor notwithstanding such findings.

While the record reveals that appellants filed a motion for judgment non ob-stante veredicto under Rule 301, Texas Rules of Civil Procedure, the record does not show that the motion was ever presented or acted on by the trial court. The transcript contains no order overruling the motion and, therefore, any complaint of the judgment set forth in the motion is waived. Hardy v. C.P.I. Sales, Inc., 511 S.W.2d 89 (Tex.Civ.App.-Houston [1st Dist.] 1974, no writ); Barnett v. Woodland, 310 S.W.2d 644 (Tex.Civ.App.-Austin 1958, writ ref’d n. r. e.).

After a careful examination of appellants’ motion for new trial, we fail to find any assignments of error relating to any of the matters complained of in points 1, 2, 3, 5, 7, 8 and 9.

The cases are legion holding that a ground of error not distinctly set forth in a motion for new trial, where such motion is required, is waived. See 3 Tex.Jur.2d, App. and Err. Civil Cases, See. 175 p. 571 and the cases cited therein; see Rules 320, 321 and 324, Tex.R.Civ.P. Points 1, 2, 3, 5, 7, 8 and 9 are therefore overruled.

Under the third point, appellants assert that the trial court erred in rendering judgment for appellee on the verdict because they contend that the jury’s verdict on special issues 2, 4, 6 and 8 is against the great weight and preponderance of the evidence, and by the sixth point appellants make the same contention with regard to the jury’s verdict on special issues 1, 3, 5 and 7.

In making the contracts in question appellants negotiated with U. 0. Hobgood, a commission buyer for Texana Cotton Company. Texana, in turn, was acting as the agent of Molsen. The evidence shows that Molsen is a world wide cotton merchant, selling to cotton mills in this country and abroad. Heinz Molsen testified that his purpose in making the contracts was to fulfill contracts the company had made for 3.0 micronaire cotton for export. The evidence shows that most lower mike cotton is exported and the price is usually established at 3.0 micronaires. Cotton with a “mike” above 3.0 may be shipped, but no premium is received for that above 3.5.

The micronaire content of cotton is controlled by the weather. Normally, very little cotton was produced by the appellants containing a micronaire reading above 3.5. The normal mike range for cotton produced by appellant Settle is 3.0 to 3.5; by Davis it is 3.0; by Pope the normal mike below 3.5; and by Raymond 3.0 to 3.2. There is no way to know in advance what the micro-naire will be. Each appellant testified that at the time they signed the contract they knew it was possible that some of their cotton would be above 3.5. The 1973-74 crop year was unusual in that on the average approximately 95% of the cotton produced by the appellants turned out to be above 3.5. It is uncontroverted that under normal circumstances all cotton which is within the premium micronaire range of 3.5 to 4.9 brings the same price as cotton exactly 3.5 when sold on the open market in the area in question. Cotton with a mike above 4.9 brings a lower price on the open market because it becomes coarse and less valuable.

Hobgood testified that he explained to each of the appellants before the contracts were signed that the price for all cotton with 3.5 micronaires and up would be 30 cents per pound. He testified that he told each appellant that there would be no discounts for cotton 5.0 and above and this was one of the selling features of the contract. He testified that he explained to each appellant that cotton below 2.4 would be at market price but he did not tell them that cotton above 3.5 was to be at market price. He testified that neither of appellants indicated to him that 3.5 cotton was not covered by the contract.

Each of the appellants testified that when they discussed the contract with Hob-good nothing was said by them or Hobgood with regard to cotton above 3.5. They each testified that at the time they signed the contract they did not notice that cotton above 3.5 was not mentioned in the contract, and they did not discover it until it was called to their attention in the fall of 1973. Mr. Davis, when asked on cross examination whether it would be fair to say that in signing the contract he intended to sell his 3.5 or better cotton for 30 cents, answered: “Yes, sir.” Appellant Pope testified that he knew cotton above 3.5 normally brings the same as exactly 3.5 cotton. He testified that when he signed the contract he had no intention to hold back premium mike for himself and that he assumed the contract covered premium mike cotton. He further testified that when he signed the contract he assumed that his premium mike cotton would be delivered at the top contract price of 30 cents per pound. Appellant Settle testified he did not notice that the contract did not mention cotton above 3.5, but at the time he signed the contract he did not “imagine” he intended to hold back any premium mike cotton for himself. Settle, as well as all other appellants, agreed that 30 cents per pound was the full, fair price for 3.5-4.9 cotton at the time of the execution of the contracts in early 1973. Appellant Raymond testified that Hobgood told her at the time she signed the contract that the minus 2.4 mike cotton would bring market price, but he did not promise her that the cotton above 3.5 would bring market price.

Davis, Settle, Pope, Raymond, Hobgood and Molsen all testified positively and unequivocally that there was never any discussion or intent to make an open price contract for cotton above 3.5 micronaires.

In addition to the foregoing testimony the jury had before it the four contracts in which the parties stipulated at two separate places that plaintiffs agreed to sell their entire cotton crop and stipulated that cotton below 2.4 would bring market value, but made no such stipulation for that above 3.5.

After considering the entire record and after weighing and balancing all of the evidence, both that in support of the verdict and that contrary to the verdict, we do not believe we would be justified in concluding that the verdict and the judgment based thereon is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Appellants’ fourth and sixth points are accordingly overruled.

Appellants complain in their tenth point of the trial court’s action in sustaining ap-pellee’s objection and refusing to admit into evidence certain interrogatories propounded to five other cotton farmers who signed identical contracts wherein they testified that Hobgood did not explain to them that they would be paid only 30 cents per pound for all cotton above 3.5 micronaires. Appellants argue that this testimony was admissible to impeach Hobgood’s testimony ;where he explained to appellants that they were to receive no more than 30 cents per pound for all cotton above 3.5.

While appellants complained of the exclusion of the foregoing testimony in their motion for new trial, they do not assert the testimony was admissible for impeachment purposes. They alleged only that it was admissible to show that Molsen intended to purchase only cotton with a mike of 3.5 and below. Nowhere in their motion for new trial do the appellants contend that the court erred in refusing to admit the evidence for impeachment purposes. Thus, this particular complaint is made for the first time on this appeal. Rule 374, Texas Rules of Civil Procedure, provides that a ground of error not distinctly set forth in the motion for new trial “shall be considered as waived.” See Rule 320, Tex.R.Civ.P.; Buchanan v. Central Freight Lines, Inc., 462 S.W.2d 391, 398 (Tex.Civ.App.-Dallas 1970, writ ref’d n. r. e.). Accordingly, appellants’ tenth point is overruled.

Under the eleventh point appellants urge that the trial court erred in excluding certain testimony of the witness, Heinz Mol-sen. Appellants contend that such testimony should have been admitted to show that the contract covered the “entire” production only within the micronaire ranges specified on the face of the contract. Here again we fail to find any assignment of error in appellants’ motion for new trial complaining of the exclusion of this testimony. The point is therefore overruled for the same reasons set forth under the preceding point.

By their twelfth and final point appellants contend that the court erred in instructing the jury as follows:

“You are instructed that in construing a contract, it is fundamental that the actual intent of the parties will prevail over dry words, inapt terms and careless recitations contained in the agreement unless, of course, the intent is directly contrary to the plain meaning of the language used in the instrument. In other words, a contract must be read in accordance with the intent and understanding of the parties, without regard to omissions, if any.”

While appellants objected to the giving of the instruction on several grounds, their complaint in the motion for new trial is limited to the action of the court in overruling their objection to that portion of the instruction advising the jury that “a contract must be read in accordance with the intent and understanding of the parties, without regard to omissions, if any.” Appellants argue that there was no evidence that any of the terms of the contract was omitted by mistake. They contend that the contract shows on its face that the parties did not intend to contract cotton having a micronaire reading of 3.5 and above. Consequently appellants say the jury was misled in that they were instructed that if they believed cotton 3.6 and above was omitted by mistake, they could supply that which was omitted and answer the issues accordingly.

Appellants took the position throughout the trial that the agreement to sell their “entire” crop meant that they agreed to sell their entire crop within the micronaire ranges specified on the face of the contract and that they did not agree to sell any cotton with a micronaire reading above 3.5. The trial court correctly determined that the contract was ambiguous and properly admitted parol evidence bearing on the intent of the contracting parties. See Esteve Cotton Co. v. Hancock, 539 S.W.2d 145 (Tex.Civ.App.-Amarillo 1976, writ ref’d n. r. e.) involving a similar contract. After hearing the witnesses and considering the contracts in question, the jury refused to find that the parties intended to contract only for cotton which had a micro-naire of 3.5 and below and refused to find that the parties failed to agree on a price for the cotton with a micronaire above 3.5.

The instruction complained of constitutes a correct statement of the law. It follows almost verbatim the language used in 13 Tex.Jur.2d Contracts, sec. 131. The instruction is designed to be used by the court in construing an unambiguous contract. While such an instruction was probably unnecessary, we fail to see how the instruction resulted in harm to appellants especially since it instructed the jury that the paramount issue was the intent of the parties. After a review of the record as a whole, there is no reason to believe that the jury would have answered the issues differently if the instruction had not been included in the charge. Thus, we cannot say that the error, if any, was calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Tex.R.Civ.P.

The judgment is affirmed.

      . “Micronaire” is a term used in describing the measured strength of cotton fiber. The higher the micronaire, the stronger the fiber and the better the cotton.

      . Pertinent parts of the contracts are as follows:
      “COTTON CROP CONTRACT— 1973-74 CROP YEAR
      “The undersigned agreed to sell and deliver to TEXANA COTTON COMPANY or his agent (hereinafter referred to as PURCHASER) and the PURCHASER agreed to buy SELLER’S entire production of cotton which shall be produced, gathered and ginned from the following farms during the 1973-74 harvesting period. (here follows a description of the farm and number of acres)' The contract price shall be figured on net weight against the following prices:
      Micronaire ranges — all staples
      GRADE 3.5 3.3 — 3.4 3.0 — 3.2 2.7 — 2.9 2.6 — 2.4
      21, (etc) 30‡ 294 284 26.504 174
      22, (etc) 28‡ 274 254 214 16.504
      23, (etc) 23$ 224 204 184 154
      24, (etc) 174 174 164 154 144
      * * * Minus 2.4 Micronaire will be at market price, also yellow stained.

      Delivery of all cotton shall be made to the PURCHASER promptly upon receipt by SELLER of government classing cards and the warehouse receipts, and this contract shall be considered fulfilled when the SELLER delivers all cotton produced and ginned on the above farm or farms in the 1973/74 season.

      Executed this the 10 day of April 1973.”


author: KEITH, Justice.

text:
    Carl R. CLINE, Appellant, v. FIREMEN’S RELIEF AND RETIREMENT FUND TRUSTEES OF HOUSTON, Texas, Appellee.
    No. 7889.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 30, 1976.
    Rehearing Denied Jan. 20, 1977.

      George C. Dixie, Houston, for appellant.
    Dennis C. Gardner, Houston, for appellee.
   KEITH, Justice.

This is an appeal from the judgment of the trial court which affirmed an order of the Firemen’s Relief and Retirement Fund Trustees of Houston, denying Cline a disability pension under Tex.Rev.Civ.Stat.Ann. art. 6243e.2 (Supp.1976-1977).

On July 13, 1973, appellant Cline, a fireman with the City of Houston Fire Department, filed an application with the Fund Trustees for a non-service occupational disability pension.

The Trustees, relying upon a medical report submitted by the Pension Fund’s doctor, denied Cline’s application, and he duly perfected his appeal to the District Court of Harris County in compliance with the provisions of Sec. 17 of the cited statute. A transcript of all papers and proceedings in the case before the Board was filed in the District Court as required by said statute noted earlier.

In the bench trial, certain oral testimony as well as the documentary evidence was considered; and, at the conclusion of the hearing, the trial judge found that there was substantial evidence supporting the Board’s denial of Cline’s application for non-occupational disability benefits, refused Cline any relief, and he has perfected his appeal.

The parties are in agreement that this case is one governed by the substantial evidence rule and, as stated in Board of Firemen’s Relief & Retirement F. Tr. v. Marks, 150 Tex. 433, 242 S.W.2d 181, 183 (1951), Cline assumed the burden of satisfying the courts that the administrative decision is illegal, arbitrary, or capricious; that is, that it is not reasonably supported by substantial evidence. We note particularly that Justice Calvert said in Marks, supra:

“The administrative agency is the fact-finding body and the question to be determined by the courts is strictly one of law.” (emphasis ours)

According to the undisputed record, Cline was, at the time he made application for retirement benefits, fifty-one years of age and had seventeen years, eleven months, and fourteen days of active service. He held the rank of Junior Captain in the Houston Fire Department being in direct charge of a pumper. Thus, he was the front line officer who leads the crew of his truck in the fighting of fires in the interior of houses and other enclosed places. The testimony supported a finding that one in such position was required to work in places wherein smoke and other noxious fumes were likely to be encountered.

Cline sought retirement and supported his application by a medical report from Dr. P. 0. Jones, a medical specialist in chest diseases. Dr. Jones diagnosed Cline’s condition as chronic obstructive lung disease with asthmatic bronchitis. He advised that Cline abstain from smoke fumes, toxic inhalants, etc.

The Board had him examined by Dr. John M. Bergland; and, upon the basis of Berg-land’s report, denied Cline’s application for retirement. This medical report, finding no objective symptoms, diagnosed Cline’s complaint as chronic bronchitis. Cline’s physician, Dr. P. 0. Jones, was more concise, his report reading:

“Mr. Cline has been diagnosed as having chronic obstructive lung disease with asthmatic bronchitis. It is strongly advisable from a medical standpoint that he abstain from any inhalation of smoke fumes, toxic inhalants or undue weather changes. This advice is being made in an effort to hasten the recovery from his obstructive lung problem.”

Able counsel for the applicant has seized upon the italicized language found in Dr. Bergland’s report and brought several witnesses to testify “objectively” of Cline’s severe coughing and other problems “with breathing when he is near a fire.” His superior and one subordinate in the hierarchy as well as his wife testified that when Cline is around smoke that he has paroxysms of coughing and is unable to discharge the duties of a fireman. Each was positive in his testimony and remained unshaken upon cross-examination.

Under these circumstances, counsel argues that Dr. Bergland’s testimony is “inconclusive” and calls our attention to the language found in Firemen’s Relief and Retirement Fund v. Powers, 411 S.W.2d 395, 399 (Tex.Civ.App. — Austin 1967, writ ref’d n. r. e.). In Powers, the Board’s physician made a report, but the appellate court found his testimony “was inconclusive one way or the other inasmuch as he felt that a correct diagnosis required a myleogram.” Here, Dr. Bergland’s report was inconclusive since he found that observation by outsiders was necessary to evaluate the condition. We consider that Powers is indistinguishable from the case at bar.

Board’s counsel, although filing an excellent brief wherein most of the authorities relied upon by Cline are discussed, has, significantly, omitted any reference to the Powers Case. Powers was cited with approval in Bryan v. Board of Trustees of Houston Fire. R. & R. F., 497 S.W.2d 367, 374 (Tex.Civ.App. — Houston [14th Dist.] 1973, writ ref’d n. r. e.).

We are of the opinion that both the Board and the trial court erred in considering Dr. Bergland’s report as conclusive. The report, when considered in the light of the testimony of the outside witnesses having actual knowledge of the facts, does not support the Board’s order; and, it must be remembered that the order denying the relief sought specifically based the denial upon Berland’s report.

Neither an administrative agency nor a reviewing court upon appeal can pick and choose among the bits of the evidence in order to find some particular mix which will support a predetermined conclusion. The courts reviewing such administrative orders are under a duty of rendering justice in the case. The record is to be considered as a whole, and it is for the court to determine what constitutes substantive evidence. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1029-1030 (1942).

Taking Dr. Bergland’s report at face value, when it is supplemented by the outside evidence which he stated was necessary to determine Cline’s condition, the result reached by the agency and the trial court is not supported by substantial evidence and is erroneous. Under the record before the agency and in the court, Cline was unable to discharge his duties as a fireman and was entitled to his retirement benefits as provided in the statute. It follows from what has been said that we must reverse the judgment of the trial court upholding the denial of Cline’s application.

Although we have certain payroll records in the exhibits making up our record, we do not feel that we should undertake to enter a specific judgment in favor of Cline. Consequently, we reverse the judgment of the trial court and remand the cause for the entry of judgment in favor of Cline for the retirement benefits he sought and is entitled to under the statute in effect at the time of his application, The trial court will also give consideration to an award of prejudgment interest upon the past due but unpaid benefits. See City of Galveston v. Russo, 508 S.W.2d 882 (Tex. Civ.App. — Houston [14th Dist.] 1974, writ ref’d n. r. e.).

REVERSED and REMANDED with instructions.

STEPHENSON, J., not participating.

      . Dr. Bergland continued: “Mr. Cline poses an interesting and puzzling problem. I can find no clinical evidence of lung disease, and his pulmonary function studies support this. I must add that there are people who are extremely allergic to smoke of any kind, and can have paroxysms of severe cough and the feeling of suffocation. In Mr. Cline’s case, this may well be his problem. On the other hand, I can find no objective evidence by any measurements, why he should be so short of breath when he is not around fires. His claim that any time he runs to a fire truck, or uses any exertional [sic] at the firehouse, that he becomes short of breath, is not substantiated on my findings. I feel that the only way to decide in this particular case is to get some witnesses who know this man, and who can objectively tell you whether or not he has severe coughing and problems with breathing when he is near a fire. If this is the case, then I feel that he may legitimately have a complaint, on the basis of an allergic component, secondary to his cigarette smoking and/or smoke. On the other hand, I do not feel justified in telling you Mr. Cline is as severely impaired as he relates on the basis of my findings.” (emphasis supplied)

      . Counsel sought an order reopening the hearing before the Board and such testimony was placed in the record in written form but the result remained the same — his application was denied. The witnesses testified to the same effect upon the trial of the cause in the court below.


author: CORNELIUS, Justice.

text:
    Grace TOWNSEND, Appellant, v. Leo PHILLIPS, Jr., Appellee.
    No. 8430.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 4, 1977.

      Howard 0. Banks, Dallas, for appellant.
    Virgil E. Rogers, Gillis, Rogers & Taylor, Dallas, for appellee.
   CORNELIUS, Justice.

In this appeal we are called upon to decide whether a will was presented for probate within four years from the death of the testator as required by Tex.Prob.Code Ann. Sec. 73 (Supp.1976). Section 73 provides in part as follows:

“(a) No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.”

DeRoy Phillips died on September 9,1971. On December 2, 1971, his nephew, Leo Phillips, Jr., filed in the Probate Court No. 2 of Dallas County, Texas, an “Application For Administration” in the Estate of DeRoy Phillips. The application contained the usual allegations as to death, domicile, property, heirship and necessity for administration. It also contained the following allegations and prayer:

V.
That petitioner believes that a Will of the decedent may exist, but he has been unable to locate its whereabouts.
VI.
That petitioner, Leo M. Phillips, is the nephew of the decedent and is an heir of decedent; .
IX.
That there exists a necessity for the administration of this Estate to determine whether a Will exists and to collect rent and divide the Estate.
X.
Applicant has seen a Will of decedent, but has been unable to see the Will and Grace Townsend has refused to show the Will to applicant.
XI.
Applicant would show that the Will which he has seen left the Estate of De-Roy Phillips to Grace Townsend and Florence P. Moore.
WHEREFORE, on this the 29 day of Nov., 1971, your applicant prays that citation be issued as required by law, that letter of administration or testamentary be issued to your applicant and that such other and further order be made as to the Court which may seem proper.” (Emphasis supplied.)

On December 16, 1971, Leo Phillips, Jr., filed in the same court a “Motion To Produce Will,” in which it was stated:

“That Grace Townsend of Dallas, Texas, who resides at 2831 Lawrence Street, Dallas, Texas, 75215, has the Last Will of DeRoy Phillips, and, although she is aware of the death of DeRoy Phillips, she has failed to deliver the same to the court for proceeding herein.
WHEREFORE, COMPLAINANT PRAYS that Grace Townsend be cited as the law requires and she be ordered and compelled to make due delivery of such Will, and for general relief.” (Emphasis supplied.)

In response to that motion the court issued an order on December 16, 1971, which stated:

“It is therefore ORDERED that the Clerk shall issue notice of citation to Grace Townsend, ... to appear before this Court on December 30, 1971, at 9:30 AM and show cause why she should not produce the Will of DeRoy Phillips, deceased, and leave the same in the custody of the Court for probate and any other papers belonging to DeRoy Phillips, deceased.” (Emphasis supplied.)

Pursuant to the court’s order Mrs. Townsend delivered to the clerk of the Probate Court on December 30, 1971, the original will of DeRoy Phillips. The will named Mrs. Townsend sole devisee and independent executrix. No application or motion was filed by Mrs. Townsend at that time. The Probate Court proceeding remained open and pending on the docket. On November 4, 1975, Leo Phillips, Jr. filed a motion to dismiss the proceedings. The motion stated that:

“The matters in controversy herein have been pending since December 2, 1971. Respondent Grace Townsend has failed to appear and prove the validity of a Will dated October 18, 1967.”

Thereafter, on November 21, 1975, Mrs. Townsend filed in the same proceeding an application to probate the will of DeRoy Phillips as a muniment of title only. In that application Mrs. Townsend made no allegation that she was not at fault in failing to file the will for probate within four years from the death of the testator, but she took the position that the will had been “presented for probate” on December 30, 1971, when she filed it with the clerk in response to the Court’s order. The court ruled, however, that the will had not been presented for probate within four years of the testator’s death, denied the application for probate as a muniment of title and dismissed the proceeding, from which action Mrs. Townsend has appealed.

It is not only a devisee or legatee who may make application for the probate of a will. Any interested person may do so. Section 76 of the Probate Code provides in part as follows:

“An executor named in a will or any interested person may make application
(a) For an order admitting a will to probate, whether the same is in his possession or not . . .”

When a party files a will for probate within four years of the testator’s death, and the matter is not abandoned or otherwise concluded but remains pending, any other person may thereafter, as a continuation of the original proceedings, move for probate of the will and it will be considered that the will was presented for probate within the four year period, even though the subsequent application is filed after that time. Abrams v. Ross’ Estate, 250 S.W. 1019 (Tex. Com.App.1923, opinion adopted); Eubanks v. Jackson, 280 S.W. 243 (Tex.Civ.App. Waco 1926, writ ref’d); 61 Tex.Jur.2d, Wills, Sec. 298, p. 454. See also Einell v. Universalist General Convention, 76 Tex. 514, 13 S.W. 552 (1890). In such a case letters testamentary may not be granted but the will may be probated as a muniment of title only.

Consistent with the above rules, we conclude that DeRoy Phillips’ will was presented for probate within four years of his death. Although Mrs. Townsend did not make formal application within the four year period, a fair reading of the application filed by Leo Phillips, Jr. reveals that it sought probate of the will if it could be produced. The application was based upon the supposed existence of the will, and it prayed for letters testamentary or for administration in case the will was not produced. The motion to produce the will demanded that it be produced “for proceeding herein.” The court ordered Mrs. Townsend to produce the will “for probate,” and she promptly did so. To hold under these circumstances that the will was not presented for probate would be to place an unreasonably technical interpretation upon the statute.

Mrs. Townsend’s own application to probate the will as a muniment of title was filed in the same proceeding under the same number as the original cause at a time when the proceeding was still open. She therefore brought herself' within the rule recognized by the above cited authorities and was entitled to have the will admitted to probate as a muniment of title upon proper proof of its authenticity.

The judgment of the trial court is reversed and the cause is remanded to the Probate Court for consideration of appellant’s application on its merits.


author: STEPHENSON, Justice.

text:
    The YOUNG COMPANIES, INC., et al., Appellants, v. BAYOU CORPORATION, Appellee.
    No. 7895.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 6, 1977.
    Andrew C. Brown, Houston, for appellants.
    Stephen Wayne Hanks, Houston, for ap-pellee.
   STEPHENSON, Justice.

Plaintiff, Bayou Corporation, brought this action, November 22, 1974, against defendant, The Young Companies, Inc., as a sworn account and for attorney’s fees under Tex.Rev.Civ.Stat.Ann. art. 2226. Defendant answered with a general denial. Plaintiff then on December 27, 1974, served that defendant with requests for admissions. May 21, 1975, plaintiff filed a motion for summary judgment and a motion to have the admissions to be deemed admitted because of that defendant’s failure to answer and for judgment.

Then July 25,1975, plaintiff filed its first amended petition naming Young America Construction Corporation and Vernon R. Young, Jr., as additional defendants. This amended petition alleged a cause of action in the nature of a sworn account and also that plaintiff furnished material and goods for the construction of certain improvements; that the owner of such improvements paid money to these defendants and that Vernon R. Young, Jr., became a trustee of such funds and is liable to plaintiff under the provisions of Tex.Rev.Civ.Stat. Ann. art. 5472e (Supp.1976-1977). A general denial was filed on behalf of Vernon R. Young, Jr. November 6, 1975, interrogatories were served upon Vernon R. Young, Jr., and requests for admission were served upon the new corporate defendant and the original corporate defendant. On November 25, 1975, plaintiff filed motions to compel all three defendants to answer the interrogatories and to have the requests for admission deemed admitted and for judgment.

Defendants answered such motion to compel answers and filed a motion to quash the interrogatories. An order was entered by the trial court December 22, 1975, which recited the appearance of the attorneys for plaintiff and defendants on December 15, 1975, and ordered all three defendants to answer the interrogatories on or before thirty days after rendition or defendants’ answers would be stricken and judgment for plaintiff entered. Also, on December 22, 1975, an order was entered that the requests for admission submitted to the two corporate defendants be deemed admitted.

December 26, 1975, an answer by all three defendants was filed to interrogatories 14 through 31. The answers contained ten “unknowns” and seven “denieds”. The one question answered was “Vernon R. Young, Jr.” when asked, “State the name of' the person answering these Requests and Interrogatories on behalf of Defendant, and the nature of your relationship to the Defendant.”

March 25,1976, plaintiff filed a motion to have the answers of all three defendants stricken, and for judgment. April 9, 1976, defendant Vernon R. Young, Jr., filed an amended answer to the interrogatories and also a response to plaintiff’s motion to strike the answers and for judgment.

April 28, 1976, the trial court entered an order striking the answers of all three defendants and granting judgment to plaintiff as to all three defendants jointly and severally.

Defendants complain here that it was an abuse of discretion by the trial court to strike the defendants’ answers and enter judgment for plaintiff. All parties agree that the imposition of penalties or sanctions for failure or refusal of a party to comply with discovery rules is directed to the sound discretion of the trial court. Further, that the court’s action can be set aside only upon a showing of a clear abuse of discretion. Meyer v. Tunks, 360 S.W.2d 518 (Tex.1962).

It is abundantly clear from a reading of the record before us that all three defendants were acting in bad faith in the answers given by them until Vernon R. Young, Jr., filed an amended answer and response April 9, 1976. That was three days before the trial court had a hearing on plaintiff’s motion to strike defendants’ answers and to enter judgment for plaintiff. That was also eighteen days before the judgment was entered from which this appeal was taken. No attempt was made to correct the situation as it existed as to the corporate defendants. There was no abuse of discretion on the part of the trial court in striking the answers of the two corporate defendants and entering the judgment against them.

The question remaining before us is whether the trial court abused its discretion in taking that action against Vernon R. Young, Jr. He was made a party to this suit July 25, 1975, and interrogatories were served upon him November 25, 1975. It is safe to say that his answers filed December 26, 1975, were not responsive and showed bad faith. It was only after plaintiff’s motion was filed March 25, 1976, asking that the answers be stricken and judgment entered, that Vernon R. Young, Jr., made what we consider to be a good faith attempt to answer the interrogatories. The record shows this defendant had employed new counsel to represent him at the time. Even though the general statement is made in plaintiff’s brief that these last answers “fail ... to deal with the questions asked”, we have no more than that conclusion before us, and we do not agree.

In spite of the fact that it required plaintiff’s persistence and five months’ time to get a good faith response from Vernon R. Young, Jr., such response was finally forthcoming. We conclude the trial court abused its discretion in striking the answer of Vernon R. Young, Jr., and granting judgment against him.

We follow the reasoning and pronouncement of the rule in Ebeling v. Gawlik, 487 S.W.2d 187, 190 (Tex.Civ.App. — Houston [1st Dist.] 1972, no writ), that “[t]he office of sanctions is to secure compliance with the discovery rules, not to punish the erring parties.” See, Lloyd A. Fry Roofing Company v. State, 524 S.W.2d 313 [(Tex.Civ. App. — Dallas 1975), affirmed, 541 S.W.2d 639 (Tex.Civ.App. — Dallas 1976)]. We have not been cited, nor have we found a case in which the trial court ordered sanction against a party after that party has complied with the order as to discovery. In fact, we have been cited one case, Gordon v. Williams, 164 S.W.2d 867 (Tex.Civ.App.— Beaumont 1942, no writ), in which this court held the trial court should have granted a motion for new trial where the interrogatories were answered two hours after judgment had been granted. Nothing in this judgment of reversals shall be construed to prevent the trial court from considering whether or not defendant Gerald R. Young, Jr., should be taxed with any expense or attorney’s fee in connection with all that has transpired as set forth above. See and compare United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 958 (Tex. 1976).

Plaintiff contends the defendants may not raise their points of error on this appeal because they did not file a motion for new trial, citing Tex.R.Civ.P. 325. That rule, by the terms, applies to a motion for continuance, for change of venue and “other preliminary motions.” The courts construe the “other preliminary motions” provision to apply to those which do not terminate the litigation. See City of Roma v. Starr County, 428 S.W.2d 851 (Tex.Civ.App. —San Antonio 1968, writ ref’d n.r.e.). The judgment appealed from in this case struck defendants’ answers and granted plaintiff judgment against all of them. We hold that this judgment by the trial court was not action on a preliminary motion which did not terminate this litigation.

The judgment is affirmed as to the two corporate defendants: The Young Companies, Inc., and Young/America Construction Corporation, and reversed and remanded for trial on its merits as to defendant, Vernon R. Young, Jr.

AFFIRMED in part and REVERSED and REMANDED in part.


author: CHADICK, Chief Justice.

text:
    Colon L. DOUGLAS, Appellant, v. Oran NEILL, Appellee.
    No. 8420.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 11, 1977.
    Rehearing Denied Feb. 1, 1977.

      L. F. Sanders, Sanders & White, Canton, for appellant.

      W. Bruce Monning, Wynne & Wynne, Wills Point, for appellee.
   CHADICK, Chief Justice.

Cancellation of a deed, imposition of a constructive trust, and recovery of actual and exemplary damages are primarily and alternately the purpose of this suit. The trial court directed a verdict and a take-nothing judgment was entered. The plaintiff below, Colon L. Douglas, has perfected an appeal and as appellant has briefed three points of error. The defendant below, Oran Neill, as appellee has responded by briefing four counterpoints.

The issues in the appeal are: 1) Whether there is an absence of evidence tolling the four-year statute of limitations governing cancellation of deeds; 2) whether a formal tender into evidence of the instrument sought to be cancelled is a prerequisite to cancellation; 3) whether an offer to restore consideration claimed to have been paid for the deed in question is a prerequisite to recovery under the record in this case.

In reviewing an instructed verdict case an appellate court must consider the evidence in the aspect most favorable to the cause of the party against whom the verdict was instructed, Colon L. Douglas, in this instance. Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951); 3 McDonald’s, Texas Civil Practice, Sec. 11.28.2 (1970). Considered in its most favorable aspect there is evidence that Douglas and Neill were friends of long standing. They assisted each other and swapped work in operating separate and independent stock farms and let their cattle run together in pastures owned or controlled by them without regard to fences or land lines. It became known to them that one of Douglas’s brothers would sell a five and a fraction acre undivided interest in land which adjoined or was a part of that they pastured in their separate stock farming operations. They agreed to undertake to purchase the interest. Douglas was twenty-five years senior to Neill and lived at or near his farm operation. Neill was employed in Athens, Texas, and lived there. Douglas suggested that Neill, since he was in Athens every day and it would be convenient, approach the Athens State Bank and see if the bank would loan approximately $1,000.00, secured by the 72 acres that is here in suit, the money to be used in purchasing the undivided interest; He suggested that Neill find out what requirements the bank would make concerning title and payment of delinquent taxes.

Early in the morning of March 2, 1967, Neill appeared at Douglas’s home and told him the bank was ready to make a loan. Douglas accompanied Neill and they drove to Canton, Texas. After breakfast they went to a land title abstractor’s office. Neill took from his pocket a previously prepared instrument which Douglas had not seen before and handed it to the abstractor. The abstractor began reading it aloud before Neill and Douglas were seated; Douglas shifted from one chair to another to make room for Neill and in this preoccupation with the civilities failed to hear all that was being read. Without reading or examining the instrument, he signed and acknowledged it. He later learned the document was a warranty deed conveying his 72 acres of land to Neill in consideration of $10.00 and other good and valuable considerations.

As soon as execution and acknowledgment was accomplished, Neill picked up the instrument without allowing time for further examination by Douglas and he and Douglas returned to Neill’s automobile. Douglas expected to continue to Athens and sign a note at the Athens State Bank and was mildly surprised when Neill assured him that the abstract office episode took care of the loan and delivered him home. Douglas’s possession and occupancy of the 72 acres did not change but in 1972 he made inquiry as to why he was not receiving tax notices and this led to the discovery that the instrument he signed at the abstractor’s office was a deed conveying his 72 acres of land to Neill. He immediately thereafter instituted suit.

An actionable misrepresentation may be expressed by acts, conduct or artifice as well as in words and assertions or by a combination of words and conduct. Ten-Cate v. First Nat. Bank of Decatur, 52 S.W.2d 323 (Tex.Civ.App. Fort Worth 1932, no writ); Blanton v. Sherman Compress Co., 256 S.W.2d 884 (Tex.Civ.App. Dallas 1953, no writ); 37 C.J.S. Fraud Sec. 9, p. 225; 37 Am.Jur.2d, Fraud and Deceit, Sec. 27 (1968); 25 Tex.Jur.2d, Fraud and Deceit, Sec. 1 (1961). The evidence is of a tenor from which a jury might conclude that Douglas and Neill entered into a joint venture to purchase the undivided acreage belonging to Douglas’s brother. A joint venture is said to be a special combination of persons in the nature of a partnership engaged in the joint prosecution of a particular transaction for mutual benefit. 33 Tex. Jur.2d, Joint Adventurers, Sec. 1 (1962). Joint venturers or those about to assume the relationship owe each other utmost good faith and scrupulous honesty. Fitz-Gerald v. Hull, supra; 33 Tex.Jur.2d, Joint Adventurers, Sec. 6 (1962). As joint ven-turers, Douglas and Neill occupied a confidential relationship to each other. Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985 (1948); Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962).

The existence of a relation of trust and confidence does not free a defrauded person from using diligence to discover the fraud. Courseview, Incorporated v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197 (1957); 37 Tex.Jur.2d, Limitation of Actions, Sec. 74 (1962). The relationship is a circumstance to be considered in determining whether the fraud might have been discovered by reasonable diligence. It may constitute an excuse for not taking action that would otherwise be required of a diligent person in an arms-length transaction or excuse alertness and a prompt search and investigation that would reveal that a fraud has been practiced. Reasonable diligence is ordinarily a question of fact for a jury. Brownson v. New, 259 S.W.2d 277 (Tex.Civ.App. San Antonio 1953, writ dism’d). Of course, diligence or lack of it may be proved as a matter of law, that is, when the proof is such that reasonable minds would not differ as to the effect of the evidence, but the evidence here is not so conclusive.

The transaction shown by the evidence, as we must view it, has no characteristic or vestige of an arms-length vendor-vendee transaction. To the contrary, there is evidence of abuse of confidence, artifice and concealment. If believed by a jury, the evidence is sufficient to toll the statute of limitations applicable to cancellation of a deed. Under such circumstances the trial court should not have granted an instructed verdict on this ground.

The deed signed by Douglas conveying 72 acres to Neill was exhibited to Douglas during direct examination. Douglas testified he signed it and on cross-examination testified that a copy of it was attached to his trial pleadings and that it was the instrument he wished to cancel. Early in Douglas’s direct examination, after he testified to his signature to the deed, counsel for Neill stated that “. . . we would like the deed introduced in evidence formally.” The court directed that the deed be marked, “. . . so that the record will show what we are talking about.” Douglas’s counsel asked the reporter to mark the deed, saying, “I am not going to introduce it, but the court wanted it marked.” The reporter marked the deed identifying it as Plaintiff’s Exhibit 2.

The basic validity of appellee’s argument that an instrument not legally before the court cannot be cancelled may be conceded but that is not the situation shown by the record. The request of Neill’s counsel assumes the deed was before the court as he asked that it be formally introduced. The court’s direction made the same assumption. The instrument and its content was actually identified by the reporter as an exhibit in the case. It was present in the courtroom, a part read in connection with interrogation of Douglas during the trial, and available for inspection by the judge and counsel. By pleading and proof the deed was openly exhibited in the courtroom and identified as the document sought to be cancelled. Under such circumstances, it must be said the instrument was before the court and there was no failure of proof in this respect. See Tex.R.Civ.P. 1 and 434. The omission shown will not support the instructed verdict.

It is settled that a litigant may not repudiate an instrument and at the same time retain benefits received thereunder. In this instance, Douglas sought cancellation of a deed that he claims was obtained from him by abuse of his confidence, and by artifice and concealment. He seeks restitution of his land by cancellation of the deed as well as other relief. Under his version of the facts he received no consideration for the deed; the deed was the product of fraud practiced upon him. When adjusting the equities in fraud cases cancellation may be employed in the furtherance of justice. In its posture on appeal, this is not a case in which restoration or an offer of restoration is a prerequisite to cancellation. 10 Tex.Jur.2d, Cancellation of Instruments, Sec. 49 and Sec. 51 (1959). Failure to make a tender does not support the instructed verdict rendered.

For the reasons discussed the judgment of the trial court is reversed and the case is remanded for a new trial.