author: W. E. QUICK, Special Judge.

text:
    Zvi BELSKY, father and next of kin of Sholom Belsky, Deceased, Basya Belsky and Zvi Belsky, Individually, Appellants, v. Guy H. PAYNE and Claude Payne, Jr., Appellees.
    Court of Appeals of Tennessee, Western Section.
    Aug. 10, 1977.
    Certiorari Denied by Supreme Court Oct. 24, 1977.
    Al H. Thomas, Memphis, for appellants.
    Braxton C. Gandy, Memphis, for appel-lees.
   W. E. QUICK, Special Judge.

This is an appeal from judgment of the trial court sustaining motion for summary judgment and dismissing complaint on the ground the action was not commenced within the one-year statutory period of limitations, and therefore barred.

Appellants’ one assignment of error is directed to the action of the trial court in granting the motion for summary judgment, it being the position of appellants that the trial court erred in not finding that there are material fact issues in dispute.

In considering the assignment, it is believed helpful to review in some detail the facts of the case, and particularly the evidence in support of the motion. We will refer to the parties according to their status in the trial court, as plaintiffs and defendants.

On the early morning of March 28, 1975 plaintiffs were walking in a northerly direction on White Station Road, in Memphis, Shelby County, Tennessee, when they were struck by a northbound automobile. The collision resulted in the death of plaintiffs’ decedent, Sholom Belsky, a child two years of age, and injury to the mother, Mrs. Bas-ya Belsky. The driver of the automobile did not stop, and his identity was unknown at time of accident.

Shortly following the accident, investigating officers found at the scene a broken side view mirror encased in a maroon colored frame, and some hours later were able to match the mirror with a maroon colored automobile found parked in carport of residence of defendant, Claude Payne, Jr. at 5175 Mary Starnes Drive, located in the same general neighborhood where the accident occurred. Examination of the automobile disclosed other evidences of recent damage, and blood and human matter were found on the side of the car.

Inquiry at the residence developed that the car in question had been driven the night before by Guy H. Payne, son of defendant, Claude Payne, Jr. Guy H. Payne was thereupon arrested and transferred to police headquarters.

On April 7, 1975 preliminary hearing was had in the City Court of Memphis, at which time defendant was represented by counsel, and entered a plea of not guilty. He was nevertheless bound to the Grand Jury on charges of murder in the second degree, leaving the scene, and driving while intoxicated.

On April 25, 1975 indictments were returned against Guy H. Payne on all three charges, and on November 24,1975 he plead guilty to the charges.

Joint action for damages was filed by plaintiffs on April 30, 1976, and on May 16, 1976 defendants filed motion for summary judgment seeking dismissal of the action on the ground the complaint was not filed within one year of date of accident and injury. The motion for summary judgment was sustained and the action dismissed, from which action of the trial court plaintiffs have appealed.

In support of the motion, defendants have filed transcript of the proceedings before the City Court, certified copy of the police report, certified copies of the indictments, and a nurhber of affidavits. The transcript of testimony introduced in the City Court, having to do with the identity of the driver of the automobile involved, consists for the most part of the testimony of Sergeant T. E. Clark, investigating officer at the scene, which is in the nature of a report. He was not one of the arresting officers, and except for his findings at scene of accident, his testimony, for the most part appears to be hearsay.

In affidavit of Ronald D. Krelstein, who was of counsel for Payne in the City Court hearing, he states: “The police officers testified that the defendant told them on the date of his arrest that he was driving at the time of the accident, and the defendant also told me (Krelstein) he made such an admission to the police.”

The transcript of testimony filed in support of the motion for summary judgment contains no testimony on the part of a police officer, or other witness, as to an admission made by defendant, Payne, on the date of his arrest that he was driving the car involved in the accident. According to the transcript, the only officer testifying in the City Court hearing was Sergeant T. E. Clark, who admittedly at no time interviewed Payne. The arresting officers did not testify.

In affidavit of Hal Gerber, also of counsel for defendant Payne in the City Court, states: “Guy H. Payne advised us that he told the police that he was driving at the time of accident. This was while he was being transported to police headquarters. The fact that the police obtained this statement without Payne’s attorney present was greatly upsetting to me. The police also testified to this admission.”

In affidavit of Frierson Graves, Memphis attorney, he states that as a friend of the Payne family, he had a conversation with Mr. Marvin Ballin, partner of Mr. Al H. Thomas, counsel for plaintiffs, at or about the date of accident, at which time he inquired whether it would be permissible for Claude Payne, Jr., the father of Guy H. Payne, to call on the family to express his sympathy, and that on Sunday, March 30, 1975 Mr. Payne did, in fact, visit the Belsky family. We do not have the testimony of either Mr. Payne or any member of the Belsky family, and do not know what, if any, admissions may have been made on that occasion. Mr. Graves further stated in his affidavit: “There was no question in my mind that I was telling him (Mr. Ballin) that the driver of the vehicle was Guy H. Payne.”

In affidavit of Marvin Ballin he stated that he recalled the various conversations and meetings with Mr. Graves, as related in the latter’s affidavit, and that the same are substantially correct, except for the statement: “There was no question in my mind that I was telling him that the driver of the vehicle was Guy H. Payne.” Mr. Ballin further stated: “At no time did Mr. Graves tell me that his client was, without question, the driver of the vehicle.”

In affidavit of Wayne Austin, Branch Manager of Progressive Casualty Insurance Company, it is related that on April 4, 1975 he called on attorney, Al H. Thomas, to arrange to take a statement from the witnesses Gold. That thereafter, on November 5, 1975, December 15, 1975 and January 5, 1976 he sent letters to Mr. Thomas’ office to furnish medical reports and list of expenses for the purpose of evaluating the case, and some information was furnished by Mr. Thomas’ associate, Mr. James E. Bailey, Jr., on February 22, 1976.

In affidavit of Braxton Gandy, attorney for defendants, he relates that he called on Mr. Thomas on June 20, 1975, advising him of his firm’s representation of the Progressive Casualty Insurance Company, and of his desire to receive medical documents and other information necessary to evaluate the claims; that Mr. Thomas did not have the documents at the time, but promised to furnish the same when received.

Mr. Al H. Thomas filed an opposing affidavit, in which he states: “That a motion for summary judgment has been filed in this case to which a number of affidavits have been attached, all of which contain blatant misstatements of the facts, and/or are at best self-serving declarations.”

It is Mr. Thomas’ position, as stated in his opposing affidavit, and in his brief, that it was not until defendant plead guilty to leaving the scene of accident and to involuntary manslaughter on November 24, 1975 that plaintiffs knew with certainty the identity of defendant.

From this review of the testimony, as contained in the transcript of testimony in the City Court, and the several supporting affidavits, it is at once apparent that there are many conflicting statements, and it can hardly be contended that there is no genuine issue of fact bearing on the material question of when plaintiffs or plaintiffs’ counsel knew, or by the exercise of reasonable diligence should have known, the identity of defendants.

With respect to motions for summary judgment, Section 56.08 of the Rules of Civil Procedure provides:

“56-.03 MOTION AND PROCEEDINGS THEREON — The motion shall be served at least (30) days before the time fixed for the hearing. The adverse party prior to the date of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.” (Emphasis added)

In Evco Corporation v. Ross, Tenn., 528 S.W.2d 20, 24-25, in an opinion by Justice Harbison, the Court held:

“The summary judgment procedure was designed to provide a quick, inexpensive means of concluding cases, in whole or in part, upon issues as to which there is no dispute regarding material facts. Where there does exist a dispute as to facts which are deemed material by the trial court, however, or where there is uncertainty as to whether there may be such a dispute, the duty of the trial court is clear. He is to overrule any motion for summary judgment in such cases, because summary judgment proceedings are not in any sense to be viewed as a substitute for a trial of disputed factual issues.” (Emphasis added)

Again, in Thomas v. Transport Insurance Company, 532 S.W.2d 263, 266, our Supreme Court, while recognizing that a trial judge may grant a motion for summary judgment, in certain eases, nevertheless quotes with approval Section 6, Moore’s Federal Practice, Sec. 56, to the following effect:

“Care should, of course, be taken by the district court to determine that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried, and that the party for whom summary judgment is rendered is entitled thereto as a matter of law.”

In the recent case of Phillips v. Pittsburgh Consolidated Coal Company, Tenn., 541 S.W.2d 411, the Court held:

“A summary judgment can be granted only when the pleadings, stipulations, and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

In Teeters v. Curry, Tenn., 518 S.W.2d 512, there was involved the question of application of the statute of limitations in a medical malpractice case. The trial court granted motion for summary judgment in favor of defendant, predicated upon brief and supporting affidavit of defendant.

The Court, in reversing and remanding the cause, cites, in part, Section 56.03 Ten-: nessee Rules of Civil Procedure, as follows:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Further:

“At no place in the brief, or in the motion is it suggested there was no genuine issue of fact.
“The order of the Court simply recites: ‘The Court being of the opinion that said motion is well taken, the Court does hereby enter judgments in favor of the defendant.’
“It is readily apparent that the Court, in effect simply sustained a plea of the statute of limitations and that this is the decisive issue before this Court.”

It would appear, therefore, that the Supreme Court held, inferentially at least, that a motion for summary judgment should properly recite that there is no genuine issue of fact.

The motion for summary judgment in the case at bar does not recite there is no genuine issue as to any material fact, which the Supreme Court seems to hold is essential to consideration of such a motion.

From our rather detailed review of the facts and the evidence in support of the motion for summary judgment, we are of opinion, and so find, that there is a genuine issue of fact in the case at bar as to when plaintiffs or their counsel knew, or in the exercise of reasonable diligence should have known of the identity of defendants, and that the trial court was in error in sustaining the motion for summary judgment.

The judgment of the learned trial court is accordingly reversed, and the cause remanded for trial on all material issues.

Costs adjudged against appellees.


source: Caselaw Access Project

author: DWYER, Presiding Judge.

license: Public Domain

text:
    Gene D. LEE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 27, 1977.
    Certiorari Denied by Supreme Court Jan. 16, 1978.
    Charles S. Kelly, Dyersburg, for appellant.

      Brooks McLemore, Jr., Atty. Gen., Henry E. Hildebrand, III, Asst. Atty. Gen., Nashville, Michael W. Whitaker, Dist. Atty. Gen., Preston Parks, Asst. Dist. Atty. Gen., Somerville, for appellee.
   OPINION

DWYER, Presiding Judge.

From a conviction for committing the offense of burglary in the second degree, T.G.A. 39-903, with punishment of confinement for not less than three nor more than six years, the appellant advances two assignments of error on this appeal in the nature of a writ of error.

The assignments: The trial court erred in overruling appellant’s motion to suppress his inculpating statements. The evidence without the statements is insufficient for lack of corroborative proof of the State’s witness-accomplice.

The evidence: Mr. Rhea’s home in Fa-yette County was burglarized during the daylight hours of July 13, 1976. Property of Mr. Rhea consisting mainly of guns and merchandise in the amount of $6,500 was removed from his home.

A co-defendant by the name of Melvin White testifying for the State admitted burglarizing the home along with the appellant and another person and that guns were removed and divided between him, the appellant and the third party.

The State introduced oral statements of appellant in which he admitted being with White and a Wayne Godair on the day of the burglary and his driving them to Mr. Rhea’s house, but that he did not enter the home.

The appellant did not testify and offered no proof.

The appellant urges that his oral admissions should not have been submitted to the jury.

The trial court had a jury-out hearing on the competency of the admissions. The investigating officers testifying maintained that the appellant was fully advised of his constitutional rights and signed a form acknowledging a waiver of his rights. The officer also stated that the appellant asked to call his attorney some forty-five minutes after appellant was in his office and was allowed to do so. He further testified that defendant was advised he could cease answering questions at any time and could go back to his cell.

The appellant testifying related that he was advised of his rights but contended that one of the officers promised him a low bond if he answered his questions and also that he was questioned extensively after he requested to call his attorney.

The record is rather clear that after initially waiving his right to counsel, a request was made by appellant to call his attorney and that he was allowed to do so, but his attorney was out of his office at that time.

By overruling the motion to suppress, the trial court implicitly found that the questioning of and the detrimental answers by the appellant to be competent and not astride Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We are obliged under settled law to adhere to this ruling, Braziel v. State, Tenn.Cr.App., 529 S.W.2d 501, 506 (1975), unless the evidence preponderates against it.

The State urges that the incriminating statements were given freely and voluntarily before the request to call an attorney was made by the appellant. In other words, the request for an attorney was subsequent to the incriminating statements. The only flaw in this argument is that there was no evidence before the trial court at the hearing to sustain this argument. In short, when appellant asked to call the attorney and when he gave the incriminating statements cannot be determined from our review. While we readily agree that free and voluntary statements (Miranda) made before a request for an attorney may be competent, United States v. Marchildon, 519 F.2d 337 (8th Cir., 1975), as urged by the State; this record is woefully'lacking as to when the agreed upon request for assistance of counsel was made.

We start with the maxim nemo ten-etur seipsum accusare as guaranteed by the Fifth Amendment to the Federal Constitution and as guaranteed in Article 1, § 9 of our State Constitution. As discussed in Mays v. State, Tenn.Cr.App., 495 S.W.2d 833, 836 (1972), this waiver, as alleged here, of counsel must be clearly and convincingly shown. The right to assistance of counsel as guaranteed by both constitutions is unarguably a right to have counsel present during statements taken in incommunicado police surroundings unless waived.

When, as here, a waiver of that right is claimed or the right not exercised until after incriminating statements are made, the State has a heavy burden to show that such a waiver was freely, voluntarily and knowingly exercised. Courts should indulge every reasonable presumption against waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

While we adhere to Braziel v. State, supra, and in no wise wish to undermine its holdings, we simply do not agree that the evidence here supports the trial court’s ruling that the request for counsel, which terminated appellant’s signed waiver, was subsequent to the incriminating statements. In other words, with the record replete with testimony from both sides that appellant requested counsel, and attempted to contact his attorney, the evidence must then clearly reflect that the statements were given prior to the request for counsel and that the continuation of the questioning was not contrary to Miranda v. Arizona, supra:

“An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), is applicable here:
‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’
“See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.” 86 S.Ct. at 1628.

The clear mandate of Miranda is: “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” 86 S.Ct. at 1628. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police they must respect his decision to remain silent.

We hold that in this record the evidence does not dearly support the waiver of counsel by the appellant antecedent to the incriminating admissions. We sustain the assignment.

The evidence assignment: In view of our holding that the trial court erred in not suppressing the statements, the uncorroborated testimony of the accomplice is not sufficient evidence to sustain the verdict.

The judgment of the trial court is reversed. The case is remanded for a new trial.

WALKER and TATUM, JJ., concur.


author: POPE, Justice. STEAKLEY, Justice,

text:
    HOBBS TRAILERS, a division of Fruehauf Corporation, Petitioner, v. J. T. ARNETT GRAIN COMPANY, INC., et al., Respondents.
    No. B-6261.
    Supreme Court of Texas.
    Dec. 14, 1977.
    Rehearing Denied Feb. 1, 1978.

      J. C. Jacobs, Corsicana, for petitioner.
    Ken R. Davey, Kerry P. Fitzgerald, Dallas, for respondents.
   ON MOTION FOR REHEARING

POPE, Justice.

We grant Hobbs Trailers’ motion for rehearing and withdraw and set aside our former opinion and judgment of June 29, 1977. The controlling questions are whether the trial court correctly disregarded findings of the jury based on evidence that violated the parol evidence rule and whether the trial court correctly rejected certain offsets against the judgment for Hobbs on the grounds that they were barred by limitations. We reverse the judgment of the court of civil appeals and affirm that of the trial court. Tex.Civ.App., 540 S.W.2d 441.

J. T. Arnett Grain Company, Inc., was the original plaintiff. It alleged an action against Hobbs Trailers, A Division of Frue-hauf Corporation, for breach of implied warranty of fitness as to certain refrigeration units and for title and possession of some trailers that Hobbs had repossessed. After extensive pleadings, the trial court cast Hobbs as plaintiff and Arnett Grain as defendant. The trial court rendered judgment for Hobbs in the sum of $11,081.28, the amount of unpaid purchase price for certain trailers that Arnett Grain bought from Hobbs. That part of the judgment is not here in question. The trial court also rendered judgment, notwithstanding the verdict, in favor of Hobbs in an additional amount of $13,440 for sixteen months of rentals that Arnett Grain failed to pay after the expiration of the term of a lease on three other trailers. The court of civil appeals held that parol evidence was admissible to show the true contract between the seller and buyer and reversed that part of the trial court’s judgment. It is our opinion that the court of civil appeals was wrong in holding that the parol evidence was admissible, since the evidence varied and contradicted the clear and exclusive terms of the written contract.

On May 1, 1969, Hobbs and Arnett Grain executed a written contract which evidenced their arrangement concerning three trailers. Hobbs says that the contract was a lease; Arnett Grain says it was a lease-purchase contract with a collateral oral agreement by which, upon payment of one dollar per trailer at the end of sixty rental payments, Arnett Grain would acquire title to the trailers. Arnett Grain argues that it owed nothing by way of rentals for the trailers after its payment of rentals for the sixty months because it contracted to buy, not rent, the trailers. It also claims an offset against any damages it owes to Hobbs. The offset, says Arnett Grain, was that amount of damages it sustained by reason of Hobbs’ breach of a warranty of fitness for the refrigeration equipment.

Arnett Grain produced evidence that Hobbs in its business offered several different kinds of deals for its vehicles. They made outright sales, they leased, or they leased with an agreement that the lessee would obtain title upon payment of one dollar at the end of the lease term. Arnett Grain then called James Harper as a witness. Harper was the salesman who showed the vehicles to Arnett Grain’s representative when they made the deal. Over Hobbs’ objection that the evidence violated the parol evidence rule, the salesman was permitted to testify that he understood the agreement was for “a full lease payoff ..” Mr. Arnett also testified that his understanding with Harper and Bruce Meyer, the only one who was authorized to approve and make a deal for the trailers, was that he “was buying this on the full lease payout, which would be a dollar option,” meaning that, upon the payment of one dollar per trailer after sixty months of lease payments, Arnett Grain would own the trailers.

The contract was denominated an “equipment lease.” It designated Hobbs throughout as lessor and Arnett Grain as lessee. Arnett Grain agreed to pay “rental payments.” Arnett Grain, as lessee, agreed not to assign or sublet the trailers. Hobbs agreed as lessor to pay the taxes on the trailers and reserved the right to place at two places on the trailers the words “Frue-hauf Corporation, Lessor.” The contract said that the purpose of those quoted words was to indicate the ownership of the equipment. Arnett Grain agreed as lessee to return the equipment to lessor at the termination of the agreement. Paragraphs 4 and 13 of the contract are significant enough to state in full.

“4. This transaction is a leasing and not a sale, conditional or otherwise. The parties understand and agree that Lessee does not acquire hereunder, or by the payment of rental hereunder, any right, title, or interest in or to said equipment or any thereof, except the right to possess and use said equipment so long, and only so long, as Lessee shall not be in default hereunder.
“13. This instrument contains the entire agreement between the parties pertaining to the subject matter. No agreements, representations or understandings, not specifically contained herein shall be binding upon any of the parties hereto unless reduced to writing and signed by the parties to be bound thereby.”

Confronted with those terms of the contract between these parties, the trial court correctly concluded that the transaction was a lease, not a sale. The trial court properly held that the contract was controlling and that parol evidence could not contradict it. This court has said “the very purpose of putting the agreement in writing is to definitely settle its terms and to exclude all oral understandings to the contrary.” Super-Cold Southwest Co. v. Elkins, 140 Tex. 48, 166 S.W.2d 97, 98 (1942). We have not departed from that rule of substantive law. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30 (1958). Article 2.202 of the Uniform Commercial Code prohibits the contradiction of final written expressions by evidence of a prior or contemporaneous agreement. See also 2 C. McCormick & R. Ray, Texas Law of Evidence § 1602, at 445-146 (1956).

Arnett Grain relies upon the rule of law which permits a collateral contract to stand so long as it is not inconsistent with another contract. That rule is a sound one, and it was the one that this court applied in Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30 (1958). The present contract between the parties, however, was complete and final, and it expressly excluded any other agreements. A lease of the trailers with an express agreement that the lessee will not, by paying the rental, acquire any right, title, or interest in the equipment is inconsistent with a contemporaneous collateral agreement that the lessee will acquire title.

Arnett Grain also has an application for writ of error. It complains of the refusal of the courts below to allow a setoff for Hobbs’ breach of a warranty of fitness for four refrigeration units that Hobbs installed on four trailers. The courts below denied the claimed setoff because the claims were barred by limitations.

On March 23, 1968, Hobbs installed two refrigeration units, known as Arctic Travelers, on two trailers that Arnett Grain was buying from Hobbs. On May 1, 1968, Hobbs installed two of the same kind of units on two trailers that Arnett Grain was leasing. The units malfunctioned from their first use and in November of 1968 Arnett Grain replaced all of the units with Thermo King units. Its cause of action arose at that time. The jury found that Arnett Grain was damaged by the inadequate refrigeration units in the sum of $7,159.13 which it says should be offset against the damages Hobbs sustained.

The trial court denied a setoff for the two units installed on the trailers Arnett Grain was buying because Arnett Grain had executed a modification agreement wherein it released Hobbs “of and from any and all claims, demands, actions, causes of action, and suits at law or in equity, without relief, which buyer has or may hereafter have against Seller based upon, arising in connection with, or growing out of the sale of said goods, or any thereof, whether such claims, etc., arise in tort, contract or warranty, express or implied.”

The trial court denied the alleged setoff as to all four units for the additional reason that the claims were barred by limitations. Arnett Grain initiated its suit for breach of warranty by filing its original petition on January 26, 1973. That action was then barred. Arnett Grain argues, however, that since, after extensive pleading by the parties, it was cast as a defendant with Hobbs as the plaintiff, it may assert the setoff defensively. Arnett Grain’s claim for breach of warranty was not a defense but an independent cause of action and was at first so asserted. As such, the plea of limitations was a valid one. Southern Pacific Company v. Porter, 160 Tex. 329, 331 S.W.2d 42 (1960); Morriss-Buick Co. v. Davis, 127 Tex. 41, 91 S.W.2d 313 (1936); Nelson v. San Antonio Traction Co., 107 Tex. 180, 175 S.W. 434 (1915); Finger v. Morris, 468 S.W.2d 572 (Tex.Civ.App. 1971, writ ref’d n. r. e.). The difference between an independent cause of action to which limitations runs and a defense to an action against which it does not run was explained in Mason v. Peterson, 250 S.W. 142, 147 (Tex.Comm.App.1923, judgmt approved), where the Commission of Appeals wrote:

The distinction between partial or total failure of consideration of a contract by reason of fraud or mutual mistake, as a defense . . ., on the one hand, and the right of action for damages for breach of or failure to comply with a contract, on the other is clearly drawn. ... In the former the relief may be awarded in abatement of the price contracted to be paid, and when so sought it is purely defensive matter; whereas the right to relief for breach of contract is clearly independent of the obligation of the purchaser to pay the contract price, and relief is awarded in a suit for the price only by way of setoff or counterclaim, as to which limitation is a recognized plea.

It is true, as Arnett Grain asserts, that the period of limitations for certain counterclaims or cross-actions is extended when they are asserted as such. See Tex. Rev.Civ.Stat.Ann. art. 5539c. If the breach of contract action had been asserted in a counterclaim or crossclaim, Article 5539c would have extended the period for filing the claim for thirty days beyond the date the defendant’s answer was due in the original suit, even though the counterclaim or crossclaim would otherwise be barred by limitation, provided the claim arose out of the same transaction as the plaintiff’s suit. Here, however, Arnett Grain was the original plaintiff. Only after Hobbs answered as a defendant and the trial judge realigned the parties did Arnett Grain become defendant. We do not believe the legislature intended to force an original defendant to choose between asserting a valid bar by limitation and asserting a valid counterclaim, for fear that upon interchange of the parties the original claim would become the “counterclaim” and thus be saved by Article 5539c. The statute was intended to prevent a plaintiff from waiting until an adversary’s valid claim arising from the same transaction was barred by limitation before asserting his own claim. Here Arnett Grain was the original plaintiff. The phrase “30 days following such answer date" in the statute may not be applied to the situation in which the original plaintiff becomes the nominal defendant. Accordingly, we hold that the statute does not extend the limitation period when the claim was originally asserted as other than a counterclaim or crossclaim. The claim for damages for breach of warranty was barred by limitations.

We accordingly reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

STEAKLEY, J., writes dissent in which JOHNSON, J., joins.

STEAKLEY, Justice,

dissenting.

I am concerned with the suit of J. T. Arnett Grain Company against Hobbs Trailers for rescission or reformation of three trailer agreements, the effect of which rescission or reformation would be to enforce an agreement collateral to the writings between the parties. As to this, I respectfully dissent. In my view, the majority has given this short shrift.

After jury trial, and notwithstanding certain jury findings later reviewed, the trial court rendered judgment for Hobbs in the sum of $24,521.28 and decreed that Arnett take nothing in its suit against Hobbs. This judgment was in part affirmed and in part reversed and rendered by the Court of Civil Appeals. That court held that Hobbs was entitled to judgment for $11,081.28, the balance due under certain sales contracts, and Arnett does not complain of this action. The Court of Civil Appeals further held that Arnett was entitled to a judgment of title to the three trailers that were the subject of the agreements forming the basis of Arnett’s suit and that therefore Hobbs was not entitled to the alleged holdover rental value of $13,440. As to this, I would affirm the judgment of the Court of Civil Appeals but for reasons differing in certain respects from those expressed by that court.

With respect to the trailer agreements between Hobbs and Arnett, the jury found that under the agreements of the parties, J. T. Arnett would be entitled to the ownership of the trailers for the sum of one dollar each at the end of the leasing period. Additionally, the jury found that at the times in question James Harper told Arnett that the leases were actually lease-purchase agreements under which Arnett would have the option to pay one dollar for each trailer at the end of the lease periods and get title to the trailers; that Harper had authority from Hobbs to make such statement; that such representations were false but Harper did not know they were false; that Arnett relied on such false representations; and that the representations were material inducements to his entering into the contracts in question. The trial court ruled that notwithstanding these findings Arnett was not entitled to recover the three leased trailers because such would be in contravention of the Parol Evidence Rule and of Article 2.202 of the Uniform Commercial Code. The Court of Civil Appeals, on the other hand, ruled that Arnett had established fraud in the inducement of the contract and was entitled to judgment awarding him title to the three trailers. Hobbs invokes the Parol Evidence Rule, as well as Article 2.202 of the Uniform Commercial Code, in seeking a reversal of the judgment of the Court of Civil Appeals in such respects and an affirmance of the judgment of the trial court. For the reasons now to be stated, it is my view that the record establishes a contemporaneous agreement collateral to and not inconsistent with the writing within the rationale of Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 33 (1958). There we cited with approval the Restatement rule, as follows:

(1) An oral agreement is not superseded or invalidated by a subsequent or contemporaneous integration, nor a written agreement by a subsequent integration relating to the same subject-matter, if the agreement is not inconsistent with the integrated contract, and
(a) is made for separate consideration, or
(b) is such an agreement as might naturally be made as a separate agreement by parties situated as were the parties to the written contract.

Id. at 33, quoting Restatement of Contracts § 240 (1932).

The three trailer agreements in question were executed by Arnett and Hobbs in 1968 and the writing contained these recitations:

“4. This transaction is a leasing and not a sale, conditional or otherwise. The parties understand and agree that Lessee does not acquire hereunder, or by payment of rental hereunder, any right, title, or interest in or to said equipment or any thereof, except the right to possess and use said equipment so long, and only so long, as Lessee shall not be in default hereunder.”
“11. This instrument contains the entire agreement between the parties pertaining to the subject matter hereof. No agreements, representations, or understandings not specifically contained herein shall be binding upon any of the parties hereto unless reduced to writing and signed by the parties to be bound thereby . . ..” Tr. 33.

At trial Hobbs assumed the position of plaintiff by agreement of counsel approved by the court. The only witness presented by Hobbs was Jerry Rawle, its Dallas, Texas, office manager. After establishing the written agreements mentioned above, Rawle testified under cross-examination by counsel for Arnett, and without objection by counsel for Hobbs, that James Harper was the Hobbs salesman who serviced the Arnett account; that Bruce Meyer was the Hobbs credit manager at the time; and that “[T]he actual deal would involve Bruce Meyer, James Harper and Howard Case.” Rawle also testified that Hobbs had two types of lease programs: one a full purchase lease at the end of which the customer could pay one dollar and receive title to the trailer and the other a residual lease under the terms of which there would be a pay-out payment by the customer at the end of the lease as a condition to the acquisition of title. He said that these are ordinarily “tax devices to give customers a little tax break.”

Hobbs rested after presenting the testimony of Rawle, whereupon counsel for Ar-nett called the witness Bruce Meyer who had been identified by Rawle as the credit manager for Hobbs at the times in question. Meyer recalled when “Mr. Harper brought or asked J. T. Arnett to come in and discuss some leases with him.” He testified that he explained the lease options or programs to Arnett but could not recall “which of the two he [Arnett] decide[d] to use.” Counsel for Hobbs did not object to this testimony and on cross-examination of this witness established that there were three types of contracts, “[0]ne of these being a purchase, one being a lease purchase with One Dollar at the end, and one being a lease contract”; that “[F]rom the file he [Meyer] would say he [Arnett] elected to take the one with the residual value”; that “he [Arnett] understood his options. I know that, because I explained them to him.” Upon being further pressed by counsel for Hobbs, the witness stated “I feel sure he [Arnett] understood that it was a lease purchase.” Finally, in Hobbs’ Motion for Judgment Notwithstanding the Verdict of the Jury, Hobbs asserted:

“[h]is [Bruce Meyer’s] testimony is uncon-tradicted that he explained three options to Arnett, and that Arnett elected to purchase under a so-called residual value agreement and not under a $1.00 payout agreement. It follows that the answers to Special Issue No. 15 [the jury finding that under the agreement of the parties Arnett would be entitled to the ownership of the trailers for the sum of one dollar each at the end of the leasing period] is not supported by any evidence, and the record will establish that there was never any agreement of the parties that Arnett would be entitled to ownership of the trailers for One Dollar ($1.00).”

In light of the foregoing, it is apparent that Hobbs assumed the judicial position that the options in question were available to Arnett collaterally to and apart from the written lease agreements but that the option exercised by Arnett was the residual value option rather than the one dollar payout option. Hobbs contends the jury findings to the contrary were without support in the evidence. As to this, the trial record further discloses the following.

Arnett called James Harper as a witness. As noted above, it had been established that Harper was the Hobbs salesman servicing the Arnett account. Harper was asked what, if anything, he told Arnett about his right to purchase or retain the trailers under the leasing program of Hobbs and under these particular leases. He answered that “[T]hey were to be transferred at the end of the contract for one dollar.” At this point counsel for Hobbs for the first time interposed the objection that such testimony was in violation of the statute of frauds, of Article 2.201 of the Uniform Commercial Code, “and for the additional reason that it’s an effort to circumvent the contract by parol evidence.” The court overruled the objection with the comment “[I]t has been completely opened.” Harper thereupon further testified that Hobbs had a program with a residual value in the trailer and one termed a full-lease payout; that in his presence and in the presence of Arnett, Bruce Meyer described these alternative leasing programs to Arnett; that an order was placed at a later date “on a full-lease payout.” On cross examination by counsel for Hobbs, Harper was asked about his authority as a Hobbs salesman. He replied that it was “to sell trailers . . . and to deal with the customers” and that he did not have authority to make contracts different from those prepared “in the office.” On redirect examination Harper was asked about his understanding of the type of transaction “when the instrument was executed.” He replied “My understanding was then and now it was a full lease payoff . [and] that is exactly what I told Mr. J. T. Arnett.”

Later in the trial J. T. Arnett was called as a witness. Under interrogation by his counsel he testified that James Harper discussed with him the tax advantage of leasing the trailers and that the lease-purchase arrangement “was all a tax write-off.” Counsel for Hobbs again objected to the testimony of Arnett as violative of the Pa-rol Evidence Rule. The court overruled the objection with the statement that the “subject was opened up widely prior to any objections being made.” Arnett further testified as follows with respect to the conference with Bruce Meyer and James Harper:

A. Bruce Meyer — he figured it up two ways. There was one way there was some kind of residual value, and there was one way a full lease payout.
Q. All right. Under either of these versions from Bruce Meyer’s explanation, would you or would you not own the trailer at the end of the lease?
A. That’s right. I was to own the trailer at the end of the lease.
Q. Was it then after your visit to Bruce Meyer that the actual lease was typed up and signed by you?
A. Yes, sir.
Q. What is your understanding of which of these two options you were leasing under?
A. Okay. My understanding was that I was buying this on the full lease payout, which would be a dollar option.

The purchase options established by the record to have been available to Arnett were not reduced to writing and were never intended to be formalized by a writing. The documents signed by Arnett and by Hobbs’ office manager were denominated equipment leases. The parties were referred to as lessor and lessee, and Arnett was obligated to make monthly “rental payments” to Hobbs. Arnett had no right to assign the lease or sublet the trailers in question, and in addition to the provisions previously quoted the instruments provided that upon termination of the lease “Lessee shall return said equipment to Lessor at Lessor’s address.”

Given these terms, it cannot be said that an oral purchase option was merely an aspect of the lease agreements. The equipment leases are fully integrated and by their provisions preclude the possibility that a purchase option could be comprehended therein. However, a purchase option considered as a separate agreement, independent and apart from the terms of the leases, is neither inconsistent with nor in derogation of such leases. An agreement by Hobbs to allow the purchase of the trailers upon expiration of the leases does not detract from the authority or enforceability of the written leases. Since the coexistence of the lease agreements and the purchase options is not disharmonious, the purchase option agreement is collateral.

Furthermore, the evidence indicated any purchase option agreement made by Hobbs and Arnett was “such an agreement as might naturally be made as a separate agreement by parties situated as were the parties to the written contract.” Restatement of Contracts § 240(b) (1932). It was established that the lease-purchase arrangements were designed to provide tax advantages for the customers of Hobbs and constituted essential aspects of the leasing program fostered by Hobbs in promoting the sale of their trailers. In Hubacek, supra, this Court cited the existence of other similar agreements with third parties to support the conclusion that the agreements there in question might naturally have been made by parties situated as were the parties in that case. In the instant case the evidence showed that similar purchase option 'arrangements were available to those who, like Arnett, possessed a certain degree of fiscal responsibility. Under these circumstances it is reasonable to conclude that a purchase option, whatever its terms, is an agreement which might naturally have been made by parties situated as were Hobbs and Arnett.

The dispute here is with respect to the terms of the collateral agreement that was made. The jury found that Hobbs agreed to convey to Arnett title to the trailers upon payment of one dollar each at the expiration of the lease periods and we hold, contrary to the contention of Hobbs, that there is evidence supporting this and the related jury findings. Harper testified he had no authority to vary the terms of the written contracts executed in Hobbs’ office, but he did have authority in his capacity as a salesman to “sell trailers,” to tell prospective customers of the leasing program and purchase options, and generally to “deal with customers.” Case and Shumate, two former Hobbs’ salesmen, also testified that as salesmen they were authorized to tell customers that under certain leases the customer could buy the trailer for one dollar upon termination of the lease. This is a situation where the appointment of a person to a position is sufficient in itself to create apparent authority. See Rourke v. Garza, 530 S.W.2d 794 (Tex.1975). In such cases, the authority extends only to those things ordinarily entrusted to one occupying such a position. Id.; Shahan-Taylor Co. v. Foremost Dairies, 233 S.W.2d 885 (Tex.Civ.App.1950, writ ref’d n. r. e.); Restatement (Second) of Agency § 27, comment a (1958). In this case Harper, as a Hobbs salesman, clearly had authority to sell trailers, and Arnett testified that Harper had in fact sold him trailers on several prior occasions. Hobbs having conferred upon Harper the authority to sell trailers, Arnett could reasonably have believed Harper had authority to negotiate the combination lease-purchase arrangements on behalf of Hobbs. Where such apparent authority exists, a third person has the same rights with reference to the principal as where the agent has actual authority. Restatement (Second) of Agency § 8, comment a (1958); Tryad Service Corp. v. Machine Tool Center, Inc., 512 S.W.2d 785 (Tex.Civ.App.1974, writ ref’d n. r. e.).

As support for its no evidence contention regarding the finding of the jury that under the agreements of the parties Arnett would be entitled to ownership of the trailers upon the payment of one dollar each upon termination of the leases, Hobbs relies on the testimony of Bruce Meyer. Meyer testified that when the final agreement was executed he explained to Arnett the two available lease-purchase arrangements and that, based on a so-called lease analysis, Arnett elected a lease under which he could pay a residual amount for the trailers at the end of the term. However, Harper, Hobbs’ sales representative, and Arnett both testified that their understanding of the agreement was that Arnett could acquire title to the trailers upon termination of the lease by the payment of one dollar, and there is other evidence, noted above, which supports the finding of the jury that the actual agreement provided for a one dollar purchase option.

I would therefore hold that the purchase option was collateral to the equipment leases and was such an agreement as might naturally have been made by Hobbs and Arnett apart from and independent of the leases. Contrary to Hobbs’ assertions, there is evidence to support the jury finding that the actual agreement of the parties provided that Arnett could acquire title to the three trailers upon payment of one dollar each at the expiration of the lease terms. That being true, the judgment of the Court of Civil Appeals properly awarded Arnett title to the trailers in question.

I therefore respectfully dissent.

JOHNSON, J., joins in dissent.


author: DOUGLAS, Judge.

text:
    John Martin GEORGE, Appellant, v. The STATE of Texas, Appellee.
    Nos. 56186-56188.
    Court of Criminal Appeals of Texas. En Banc.
    Jan. 11, 1978.
    Charles E. Tobin, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ronald D. Hinds and C. Wayne Huff, Asst. Dist. At-tys., Dallas, for the State.
   OPINION

DOUGLAS, Judge.

Cause Numbers 56,186 and 56,188 are appeals from convictions for unlawfully obtaining phenmetrazine hydrochloride by the use of forged prescriptions. Cause No. 56,-187 is an appeal from a conviction for unlawfully obtaining methamphetamine hydrochloride by the use of a forged prescription. In each case, appellant waived trial by jury and entered a plea of guilty before the court. Punishment was assessed at two years in each case.

Appellant contends that in each case there is a fatal variance in the indictment between the purport clause and the instrument set out according to its tenor.

In Cause Numbers 56,186 and 56,188, each indictment alleges the unlawful acquisition of phenmetrazine hydrochloride (pre-ludin) in the purport clause while the forged prescription, by its tenor, specifies desoxyn (methamphetamine hydrochloride). The indictment in Cause No. 56,187 alleges the unlawful acquisition of methamphetamine hydrochloride in the purport clause while the tenor clause specifies preludin.

Appellant argues that the variance in each indictment between the purport and tenor clauses is a fatal defect. The purport clause in each indictment alleged one drug but the attached copy of the forged prescription named a different drug.

In forgery cases, it has always been the rule that where an indictment contains the tenor of a forged instrument the substance thereof need not be given. Rhudy v. State, 42 Tex.Cr.R. 225, 58 S.W. 1007 (1900). “. . . Where, however, the indictment contains a purport clause, that clause must correspond to the tenor of the instrument charged to be a forgery. Variances between descriptions in the tenor and purport clauses have been held to be fatal.” 25 Tex.Jur.2d Forgery, Section 46, pp. 561-62 (1961) (footnotes omitted). This is what appears in the present case.

For the reasons stated, the judgments are reversed and the prosecutions are ordered dismissed.


author: ONION, Presiding Judge.

text:
    Ex parte Julian B. RODRIGUEZ.
    No. 56558.
    Court of Criminal Appeals of Texas. Panel No. 2.
    Jan. 11, 1978.

      Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ONION, Presiding Judge.

This is an application for writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P.

Petitioner is presently serving a life sentence for a conviction in Cause No. 74-CR-2636, from the 186th District Court of Be-xar County, for thé offense of burglary of a habitation, with two prior convictions alleged and proved for enhancement under V.T.C.A., Penal Code, § 12.42(d). Petitioner was formally sentenced to a mandatory life term of imprisonment as an habitual criminal in this case on December 18,1975, and a direct appeal resulted from a conviction being affirmed by a per curiam opinion.

Petitioner has filed an application for writ of habeas corpus with the trial court, contending that one of the prior convictions alleged for enhancement is void, due to a violation of the carving doctrine. Petitioner therefore contends that his life sentence as an habitual criminal is void. In view of the rather complicated factual situation, a brief historical summary of this case is in order, to-wit:

1. On February 25, 1969, petitioner entered a plea of guilty in Cause No. 68-1123 to the offense of possession of heroin and was sentenced on that date to serve nine years’ imprisonment.
2. Also, on February 25,1969, but subsequent to the above-mentioned trial, petitioner entered another plea of guilty to the court in Cause No. 68-1124 for the offense of possession of narcotic paraphernalia, with the punishment being assessed in this case at six years.
3. Notices of appeal were given in both of these cases, and both appeals were affirmed in Rodriguez v. State, 449 S.W.2d 469 (Tex.Cr.App.1970), and Rodriguez v. State, 449 S.W.2d 470 (Tex.Cr.App.1970), respectively.
4. Petitioner was subsequently indicted for the offense of burglary of a habitation on November 13, 1974, in Cause No. 74-CR — 2636, with one of the two prior convictions alleged for enhancement being the above-mentioned prior conviction in Cause No. 68-1123, the conviction for possession of heroin. The other prior conviction alleged was a possession of heroin conviction in 1956.
5. On a jury trial the prosecution for burglary of a habitation the jury found that petitioner was guilty, and the evidence was presented to the court on the issue of punishment. The trial court considered the evidence presented, found both prior convictions to be true, and assessed petitioner’s punishment at life as an habitual criminal. See § 12.42(d), supra. An appeal of this conviction was affirmed in our per curiam opinion No. 53,187, 549 S.W.2d 208 (1977).

Petitioner filed his application for writ of habeas corpus in the trial court, contending that the prior conviction in Cause No. 68-1123 was void since this conviction was obtained in violation of the carving doctrine, and that petitioner was subjected to double jeopardy since both the possession of heroin charge and the possession of narcotic paraphernalia charge arose at the same time, at the same place, and out of the same operative set of facts.

If petitioner’s version of the facts is correct, he may be entitled to relief from one of these convictions. This court has continually held that the possession of two different substances, or instruments, both classified as narcotic drugs or paraphernalia under Article 725b, § 2(a), V.A.P.C. (1925), can result in but one prosecution, as the State may carve only one offense out of a simultaneous possession of a narcotic drug and narcotic paraphernalia. See Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977); Ex parte Adams, 541 S.W.2d 440 (Tex.Cr.App.1976); Jones v. State, 482 S.W.2d 194 (Tex.Cr.App.1972); Ellis v. State, 502 S.W.2d 146 (Tex.Cr.App.1973); Ex parte Santillan, 532 S.W.2d 638 (Tex.Cr.App.1976); Thompson v. State, 495 S.W.2d 221 (Tex.Cr.App.1973); Harris v. State, 499 S.W.2d 139 (Tex.Cr.App.1973).

The trial court entered findings of fact and conclusions of law to the following effect, to-wit:

“While it is true that Petitioner’s possession of heroin and narcotic paraphernalia occurred at the same point in time, they nevertheless constituted separate criminal offenses, the elements of which are not the same. Therefore, Petitioner’s conviction for possession of heroin did not act to collaterally estop his conviction for possession of narcotic paraphernalia.”

We must agree with the trial court’s findings of fact that both the offenses of possession of heroin and possession of narcotic paraphernalia arose out of the same transaction. A review of the appellate records in our Cause Nos. 42,558^42,559 clearly reflects that a search warrant was executed against petitioner’s premises, and that he was arrested and charged with both of these possessory offenses at the same time on September 5,1968. It is clear, therefore, that the dual- prosecutions in Cause Nos. 68-1123 and 68-1124 should not have been permitted, as this prosecution was in violation of the doctrine of carving. See Ex parte Santillan, supra; Ellis v. State, supra.

While we agree with petitioner’s statement of the law in this case, we note that the appellate records in our Cause Nos. 42,558-42,559 clearly reflect that the possession of heroin ease in Cause No. 68-1123 occurred first, and that subsequently, the guilty plea in Cause No. 68,1124 for the possession of narcotic paraphernalia charge was accepted. The statement of facts of the trials reflects this, even without having to indulge in the normal presumption that the lower trial court cause number was tried first. Compare Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.1974). Therefore, we agree that the doctrine of carving has been violated, but that the conviction which must be vacated and dismissed is the prior conviction in Cause No. 68-1124, the conviction for possession of narcotic paraphernalia. The conviction for possession of heroin, being obtained first, remains valid and therefore is properly used for enhancement of petitioner’s life sentence.

Petitioner is entitled to only partial relief, and the writ of habeas corpus is granted to the extent that the prior conviction in Cause No. 68-1124 should be reversed and dismissed; however the contention alleged in petitioner’s application for writ of habeas corpus challenging the validity of the life sentence in Cause No. 74-CR-2636 is hereby denied.

      . This court has the authority to take judicial notice of its own records to determine the evidence in such cases. See Salinas v. State, 542 S.W.2d 864 (Tex.Cr.App.1976); Ex parte Flores, 537 S.W.2d 458 (Tex.Cr.App.1976).

      . Due to the disposition of this case, there is no need to reach the question of whether petitioner waived his challenge to the validity of a life sentence by not objecting to the use of the invalid prior conviction during his 1975 trial. Cf. Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.1974).

      .There is a possibility that the use of this prior conviction may have collateral consequences as to petitioner’s parole eligibility; therefore, it should be rendered null and void. See Ex parte Guzman, 551 S.W.2d 387 (Tex.Cr.App.1977).


text:
    Domingo PESINA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 56568.
    Court of Criminal Appeals of Texas. Panel No. 2
    Jan. 11, 1978.
    John L. Lesly, Amarillo, for appellant.
    Tom A. Curtis, Dist. Atty., and Bruce P. Sadler, Asst. Dist. Atty., Amarillo, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of heroin, wherein the punishment was assessed at three (3) years’ confinement in the Department of Corrections.

On April 12, 1977 the appellant waived trial by jury and entered a plea of guilty before the court to the indictment. He was then carefully admonished by the court in accordance with Article 26.13, V.A.C.C.P. Thereafter, the appellant voluntarily took the witness stand and made a judicial confession. After he related he had discussed the indictment with his attorney, the prosecution then asked:

“Q. Okay. Then you know that it says ‘On or about the 27th day of September of 1976, in Potter County, Texas, you did then and there knowingly and intentionally possess a controlled substance, namely: heroin’. Now, is each and every allegation which I just read to you true and correct?
“A. Yes, sir.
******
“Q. Okay. The police took some heroin off of you, too, did they not?
“A. Yes, sir.
“Q. How much heroin did you have on you?
“A. Oh, I think it was five packets.”

Appellant’s testimony was the only evidence offered upon the plea of guilty.

In his sole ground of error on appeal appellant contends that the evidence was insufficient to support the guilty plea and to show that he possessed heroin as alleged in the indictment. He cites Article 1.15, V.A.C.C.P., for the requirement that there be sufficient evidence to support the judgment entered on a guilty plea. He argues that there is no competent evidence showing the substance possessed by him was heroin, or any showing that he could distinguish one white or brown powdered substance from another and determine which was heroin. He calls attention to Curtis v. State, 548 S.W.2d 57, 59 (Tex.Cr.App.1977), where this court stated:

“. . . However, we are unwilling to say that an experienced officer can look at a white or brown powdered substance and testify it is heroin since morphine,, codeine, paregoric, other opiates, other controlled substances, and noncon-trolled substances also appear in white or brown powdered form. . . .

See also Duran v. State, 552 S.W.2d 840 (Tex.Cr.App.1977). In Curtis and Duran there was no testimony from a chemist or other qualified individual.

■Appellant urges that in his case there was no testimony from a chemist or other competent witness but only his statement that the substance was heroin. He argues the holdings in Curtis and Duran should be applied to the instant case and that the evidence should be held insufficient to support his guilty plea.

The State counters with the argument that a judicial confession standing alone is sufficient to support the judgment. See Byrom v. State, 528 S.W.2d 224 (Tex.Cr.App.1975); Knight v. State, 481 S.W.2d 143 (Tex.Cr.App.1972).

We conclude that Curtis and Duran are not here applicable. We do not view appellant’s testimony as opinion testimony. As in Bright v. State, 556 S.W.2d 317 (Tex.Cr.App.1977), we view the testimony as a statement of fact within the knowledge of the witness. See also Reed v. State, 112 Tex.Cr.R. 149, 15 S.W.2d 624 (1929); 23 Tex.Jur.2d, Evidence, § 409, pp. 609-610.

Appellant’s contention is overruled.

The judgment is affirmed.

      . Curtis distinguished those cases where this court has held that an experienced officer may be qualified to testify that a certain green leafy plant substance is marihuana. Miller v. State, 168 Tex.Cr.R. 570, 330 S.W.2d 466 (1959); Satery v. State, 455 S.W.2d 294 (Tex.Cr.App.1970); Jordan v. State, 486 S.W.2d 784 (Tex.Cr.App.1972); Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971).


author: ROBERTS, Judge.

text:
    Homer Wayne MISENHIMER, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57120 and 57121.
    Court of Criminal Appeals of Texas. En Banc.
    Jan. 11, 1978.

      Elaine Brady, court appointed on appeal only, Houston, for appellant.
   OPINION

ROBERTS, Judge.

Appellant waived trial by jury and entered pleas of guilty before the court to two separate offenses of robbery. Punishment in each case, enhanced pursuant to V.T. C.A., Penal Code, Sec. 12.42(b), was assessed at thirty (30) years’ confinement.

Appellant’s court-appointed counsel has filed briefs in which she has concluded that these appeals are wholly frivolous and without merit. The briefs meet the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in that they contain a professional evaluation of the records demonstrating why, in effect, there are no arguable grounds to be advanced. See Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969); Jackson v. State, 485 S.W.2d 553 (Tex.Cr.App.1972); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). A copy of counsel’s briefs and the appellate records have been delivered to appellant and appellant has been advised of his right to file pro se briefs. No pro se briefs have been filed.

The records reflect that appellant was duly admonished of the consequences of his pleas pursuant to Art. 26.13, Vernon’s Ann. C.C.P., and appellant made judicial confessions admitting his guilt in each case.

However, we have concluded that the records contain error which must be reviewed in the interest of justice under the provisions of Art. 40.09(13), Vernon’s Ann.C.C.P. Rollins v. State, 542 S.W.2d 163, 164 (Tex.Cr.App.1976).

Both of appellant’s convictions were enhanced by the same prior felony conviction — Cause Number 167886 in the 176th District Court of Harris County. We have held that the same prior felony conviction may not twice be used for enhancement under V.T.C.A., Penal Code, Sec. 12.42, except where it is first used under Sec. 12.-42(a), (b), or (c), and then later used under Sec. 12.42(d) to fix the accused’s status as an habitual criminal. Ex Parte White, 538 S.W.2d 417, 418 (Tex.Cr.App.1976).

Since both of appellant’s convictions were enhanced under Sec. 12.42(b), and both by the same prior conviction, it is clear that the punishment in one of these cases was excessive. Ex Parte White, supra.

However, we have carefully reviewed the records and counsel’s briefs in these cases and agree that — with the exception of the error mentioned — the appeals are wholly frivolous and without merit.

Accordingly, the judgment in Cause Number 57,120 is affirmed.

Since punishment was assessed by the trial court, the judgment as to guilt in Cause Number 57,121 is also affirmed, but the cause is remanded for a proper assessment of punishment.

It is so ordered.


text:
    Howard REID, Appellant, v. The STATE of Texas, Appellee.
    No. 57122.
    Court of Criminal Appeals of Texas. Panel No. 2.
    Jan. 11, 1978.

      Michael J. Donahue, Houston, for appellant.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ONION, Presiding Judge.

Appellant waived trial by jury and entered a plea of guilty before the court to an indictment charging him with the offense of robbery. Punishment was assessed at imprisonment for five (5) years. The conviction must be reversed because the evidence was insufficient to show that appellant committed robbery as alleged in the indictment.

The indictment alleged that appellant committed robbery under V.T.C.A., Penal Code, Sec. 29.02(a)(1). Omitting the formal parts, the indictment alleges that, on or about September 7,1976, appellant did then and there unlawfully:

“while in the course of committing theft of money owned by Lawrence Ethridge, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly cause bodily injury to the Complainant. . . . ”

The only evidence admitted in support of appellant’s guilty plea was his written judicial confession. That confession, in pertinent part, states:

“On September 7,1976, in Harris County, Texas, I did while in the course of committing theft of money owned by Lawrence Ethridge, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, . . .”

While this confession was sufficient to show that appellant was guilty of robbery under V.T.C.A., Penal Code, Sec. 29.02(a)(2) that offense was not alleged in the indictment. Since there was no proof that, during the robbery, appellant intentionally or knowingly caused bodily injury to the complainant, the evidence was insufficient to sustain a conviction for robbery under V.T.C.A., Penal Code, Sec. 29.02(a)(1), as alleged in the instant indictment.

The judgment is reversed and the cause is remanded.

      . Sec. 29.02(a)(1), V.T.C.A., Penal Code, states, in part:
      “(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
      (1) intentionally, knowingly, or recklessly causes bodily injury to another; . . .”

      . Sec. 29.02(a)(2), V.T.C.A., Penal Code, states, in part:
      “(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
      * * * * jfc *
      (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”


author: HUGHES, Justice.

text:
    AETNA CASUALTY AND SURETY COMPANY, Appellant, v. Edward RAPOSA et ux., Appellees.
    No. 17877.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 13, 1977.
    Rehearing Denied Nov. 10, 1977.

      Greenberg & Bach and Robert M. Green-berg, Dallas, for appellant.
    Henry & Hatcher, Gainesville, Kelsey & Wood and Richard H. Kelsey, Denton, for appellees.
   OPINION

HUGHES, Justice.

The surety on a garnishment bond has appealed by writ of error from a judgment in a suit for wrongful pre-judgment garnishment on the grounds that plaintiffs did not plead and prove a cause of action and alternatively, that the elements of damages pleaded and proved are not proper in such an action.

We affirm in part; reverse and remand in part; and reverse and render in part.

On December 31, 1973, Edward Raposa and his wife, Carol, sued K. E. and Veronica Caspers doing business as K. E. Caspers Construction Company and appellant, Aet-na Casualty and Surety Company, the surety on the garnishor’s bond, seeking damages for an alleged wrongful garnishment. The defendants answered with a general denial, but neither appeared at trial. Aetna has petitioned for writ of error.

The Raposas’ original petition for wrongful garnishment alleged, in part, the following: The Raposas and Caspers entered into a written contract on January 24, 1972, to build a lake cabin. The total contract price was $14,520.00. The Raposas then entered into an interim financing agreement with the First State Bank of Denton, which required the Raposas to purchase an insurance policy on the cabin. They purchased a policy from Republic Insurance Company of Dallas, with the loss-payable clause in favor of the bank. After Caspers had begun work, but before he had completed the cabin, the cabin was totally destroyed by fire. Thereafter Caspers sued the Raposas for an alleged debt of $12,521.99 on the cabin and filed an application for writ of garnishment against Republic in order to garnish the funds due and payable to the bank under the policy. Caspers executed a garnishment bond in the amount of $25,043.98, with Aetna as surety. The Raposas further alleged that they were not indebted to Cas-pers and that there was no basis in law or fact to sustain the writ of garnishment against Republic. As a result of the writ of garnishment, Republic was prevented from paying the insurance proceeds to the bank; the Raposas were unable to repay the bank loan; and interest continued to accumulate on the principal. They also alleged that interest rates on home construction loans rose during that period of delay. The Ra-posas initially sought a joint and several judgment of $7,132.75 for additional interest paid and increased home loan costs, plus $1,500.00 in attorneys’ fees.

At trial the court permitted the Raposas to file a trial amendment in which they alleged that the defendants were jointly and severally liable for the following damages:

Interest on the detained funds, $1.296.00: Additional interest paid on the interim commitment to the FIRST STATE BANK OF DENTON, $1.536.75:
Attorneys’ fees in defending the primary suit, $1.000.00:
The differential in mortgage expense, $6,398.40:
The differential in construction costs, $20.480.00.

The amended pleadings thus sought a joint and several judgment of $30,771.15 against Aetna and Mr. and Mrs. Caspers.

The trial court’s judgment recited that the defendants had been duly notified pursuant to local rules and were aware of the trial setting, that they nonetheless failed to appear either personally or by their attorney of record, and that the court heard testimony as to damages only. The elements of damages found by the court, as recited in its judgment, were those alleged in Raposa’s trial amendment. Rather than rendering a joint and several judgment against all the defendants for $30,771.15 as sought by the Raposas, the court rendered judgment for the Raposas against Mr. and Mrs. Caspers and Aetna, jointly and severally, for $25,043.98 (which amount corresponds to the amount of the garnishment bond,) and against Mr. and Mrs. Caspers, jointly and severally, for $5,727.17.

The only testimony in the record is that of Edward Raposa. He testified that the suit for debt brought by Caspers against him and his wife had been adjudicated in their (the Raposas’) favor and that the writ of garnishment was in fact issued in regard to the casualty insurance proceeds. As a result, $16,188.90 in casualty fire insurance proceeds was tied up from May 10, 1972, to September 7, 1973. (The remainder of Ra-posa’s testimony concerning damages will be set forth below.)

For convenience we will first discuss Aetna’s second point of error: that the trial court erred in rendering judgment “for the reason that [the Raposas’] pleadings failed to allege a cause of action for a wrongful garnishment.”

In its brief Aetna now admits “[t]he fact that the debt made the basis of the garnishment was ruled not due” but argues that fact does not make the garnishment wrongful. Aetna’s position is that the Raposas were required to “plead and prove that [the Raposas] not only had sufficient unexempt property to satisfy the debt claimed to be due, but further, that the adversary had such knowledge of the existance [sic] of such property.”

Aetna’s reliance on King v. Tom, 352 S.W.2d 910 (Tex.Civ.App.-El Paso 1961, no writ) is misplaced in this regard. In that case the suit for balance due on a note had been adjudicated against the debt- or, thus precluding the allegation made in this case that the garnishment was wrongful on the ground that the debt was not justly due.

A garnishment is wrongful if the allegations set forth in the affidavit as prescribed by statute are false. One of the grounds for the issuance of a writ of garnishment is that the debtor is justly indebted to the garnishor . . Thus, the garnishor assumes the responsibility of proving that the debtor is indebted to him. Comment, 41 Texas L.Rev. 692, 705 (1963), citing Barr v. Cardiff, 32 Tex.Civ.App. 495, 75 S.W. 341 (1903, writ ref’d).

Aetna’s first point of error (discussed out of order) is that “[t]he trial court erred in rendering judgment against Aetna . for the reason that [the Raposas] did not meet their burden of proof, and failed to prove a cause for wrongful garnishment.” Aetna’s objection to the judgment is based on the alleged failure of the trial court to hear evidence on the liability issues before rendering its judgment.

Aetna correctly cites Frymire Engineering Co., Inc. v. Grantham, 524 S.W.2d 680 (Tex.1975), Tally v. Thorn, 35 Tex. 727 (1872) for the proposition that the filing of a general denial requires the court to hear evidence before rendering judgment. But Aetna’s position assumes that the trial court heard no testimony whatsoever establishing liability. It is true that the statement of facts reflects that the court announced it would hear testimony only with regard to damages. The judgment also recites that the court rendered judgment for the Raposas on the liability issues and proceeded to hear testimony in regard to damages.

But Raposa’s testimony concerning damages also included testimony that this action for wrongful garnishment arose in connection with an action for an alleged debt owing on the cabin brought against him by Caspers and which was adjudicated in his (Raposa’s) favor. (As previously pointed out, Aetna itself now admits that Caspers lost the suit for debt.)

We hold as a matter of law that this testimony established that the garnishment was wrongful. Peerless Oil & Gas Co. v. Teas, 138 S.W.2d 637 (Tex.Civ.App.-San Antonio 1940), aff’d on other grounds, 138 Tex. 301, 158 S.W.2d 758 (1942); Barr v. Cardiff, 32 Tex.Civ.App. 495, 75 S.W. 341 (1903, writ ref’d). Any error in the trial court’s decision not to hear evidence on the liability issues was cured and was not such “as was reasonably calculated to cause [nor did it] probably . . . cause the rendition of an improper judgment in the case.” Tex.R.Civ.P. 434.

Aetna’s third point is that the trial court “erred in rendering judgment for the amount rendered in that the elements pleaded and proved are not proper damages to be awarded in a wrongful garnishment action.” Aetna does not attack the sufficiency of the pleadings and proof offered as to the elements of damages, questioning only the propriety of awarding them in this action.

Damages may be recovered in a wrongful garnishment action for those injuries proximately caused by the wrongful act. “[P]roximate cause consists of two elements: (1) cause in fact, and (2) foreseeability. . . . Both elements must be present. . . . Cause in fact as an element of proximate cause means that the [wrongful] act . . . was a substantial factor in bringing about the injury and without which no harm would have been incurred. . . . ” Missouri Pac. R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977).

Foreseeableness or anticipation of injury is an essential element of proximate cause. The injury complained of must be the natural and probable consequence of the wrongful act — that is, it must be of such nature as would reasonably have been anticipated under the circumstances by a person of ordinary prudence. It is not necessary that it appear that the wrongdoer actually foresaw the precise course of the consequences of his wrongful act, but it must appear that he could or should reasonably have anticipated or foreseen that the injury complained of, or one of the same general character, would probably result from his wrongful act. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, 222 (1942), cert. denied, 320 U.S. 210, 63 S.Ct. 1447, 87 L.Ed. 1848 (1943).

With this test in mind we will discuss each item of damages recited by the trial court as the basis of its judgment.

INTEREST ON THE FUNDS GARNISHED

The proper measure of damages in a wrongful garnishment action is the actual damages sustained. Stevens v. Simmons, 61 S.W.2d 122 (Tex.Civ.App.-El Paso 1933, no writ). In the absence of other facts authorizing a recovery for actual damages, the measure of damages in a wrongful garnishment action is the legal rate of interest on the money for the period of its wrongful detention. Lightfoot v. Murphy, 47 Tex.Civ.App. 112, 104 S.W. 511 (1907, no writ). Because of the other facts discussed below establishing actual damages in this case the award of $1,296.00 interest on the detained funds is an inadequate measure of the actual damages sustained. Yet to permit its recovery in addition to the items of damages actually sustained would be to permit a double recovery. The $1,296.00 interest award is therefore improper in this case and must be omitted from the trial court’s judgment as an element of damages.

ADDITIONAL INTEREST PAID ON THE INTERIM COMMITMENT TO BANK

Raposa gave the following testimony concerning additional interest paid on the interim commitment to the bank: Ra-posa had obtained interim financing on the cabin from the bank and had paid the proceeds of the bank loan to Caspers. When the garnishment proceedings tied up the $16,188.90 in casualty fire insurance proceeds held by Republic, Republic was unable to pay the proceeds to the bank in accordance with the terms of the policy. Raposa was thus unable to meet his obligation to the bank on the interim loan because the insurance proceeds from the policy bought for that purpose were tied up by the garnishment. Not until the insurance proceeds were finally freed was he able to repay the bank loan. As a result of the delay in repaying the bank, he testified he had to pay the bank additional interest in the amount of $1,596.75, which amount was the differential in interest incurred between the time that the loan should and could have been paid had the garnishment proceeding not been instituted and the time the proceeds were made available to him.

Aetna argues that the additional interest could not be anticipated as a natural and probable result of suing out a writ of garnishment, citing Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216 (1942), cert. denied, 320 U.S. 210, 63 S.Ct. 1447, 87 L.Ed. 1848 (1943); Reynolds v. Sandel, 142 S.W.2d 527 (Tex.Civ.App.-El Paso 1940, no writ); and Stafford v. Patterson & Nelson, 184 S.W. 1095 (Tex.Civ.App.-Fort Worth 1916, no writ).

The cited cases are not controlling on the question before us. The Stafford case involved a claim for profits lost when a seller’s bank account was garnished, leaving him unable to pay freight charges on a shipment as required by an unrelated sales contract. The Reynolds case also involved a claim for lost profits, but no evidence had been heard concerning damages. In Commonwealth of Massachusetts v. Davis the court held that the garnishor could not reasonably have anticipated that garnishment of Davis’s stock would injure the corporation by preventing Davis from using it as collateral for a personal loan to be used to finance the corporation. The court noted that this was not a case in which a stockholder lost the benefit of a profitable sale of the stock because of the garnishment. The court also stated that the Commonwealth of Massachusetts could not reasonably have anticipated that the corporation was depending on Davis for financing because (1) under the law the corporation and its shareholders are treated as distinct entities, (2) Davis was not obligated to use his funds to finance the corporation, (3) it was not customary for stockholders to do so, and (4) the Commonwealth had no notice of Davis’s plans for the use of the stock.

Although the record in this case is silent as to whether Caspers had actual knowledge of Raposa’s loan from the bank, we think that in these circumstances a person of ordinary prudence would reasonably have anticipated that the garnishment of the proceeds of a casualty fire insurance policy purchased to cover fire losses occurring during the construction of the insured building would probably result in additional expenses of this kind. We hold that the additional interest paid on the interim commitment to the bank is a proper element of damages.

DIFFERENTIAL IN MORTGAGE EXPENSE

Raposa testified he had a letter of commitment from a mortgage company which he had accepted as a take-out letter for the interim construction loan and that Decatur Savings and Loan was at all times prepared to honor its commitment until the period expired. Their commitment was for $17,000.00 at 7% per annum for twenty years. When Raposa attempted to rebuild the cabin after the insurance proceeds were finally freed, the interest rate on a commitment with the same terms and conditions had increased by September of 1973 to 9V2% per annum. Raposa calculated the increased mortgage expense resulting from the delay at $6,398.40.

For the reasons discussed above in connection with the additional interest paid on the interim loan we hold that the additional mortgage expense resulting from the garnishment was also reasonably foreseeable, and, hence, a proper element of damages.

DIFFERENTIAL IN CONSTRUCTION COSTS

Raposa also testified that during the period the funds were subject to the garnishment construction costs spiraled and that the lowest estimate he received to replace the cabin was $35,000.00. The trial court found the differential in construction costs to be $20,480.00. This figure corresponds to the difference between the low replacement estimate of $35,000.00 received at some unspecified time after September 7, 1973, and the original $14,520.00 contract price of January 24, 1972. There is no evidence in the record, and the court made no finding as to what the replacement costs were on May 10, 1972, and September 7, 1973. Consequently, there is no evidence in the record on which to base a finding as to how much the construction costs increased during the period the funds were wrongfully detained, and hence, how much of the increase was in fact caused by the garnishment.

We hold that under the circumstances of this case the increased construction costs were also foreseeable. But because there is no proper finding by the court as to how much of the increase in construction costs was the result of the wrongful garnishment, we must reverse the trial court’s judgment and remand the case to the trial court. The facts on which liability for the wrongful garnishment rests are not contested, however, and the question of the resulting increase in construction costs is separable without unfairness to the parties. Thus we remand the case pursuant to Tex.R. Civ.P. 434 solely to determine how much the construction costs increased during the period the funds were wrongfully detained. Young v. Hicks, 20 Tex.S.Ct.J. 376 (June 22, 1977). See also Pope, “Try, Try, Again . A Proposal to Limit the Scope of New Trials in Texas, 7 St. Mary’s L.J. 1 (1975).

We need not apply the proximate cause test to the item of attorneys’ fees because the attorney for Raposa in oral argument before this court conceded the impropriety of the $1,000.00 attorneys’ fees as an item of damages in this case. This item must be omitted as a basis of recovery under the judgment.

Although Mr. and Mrs. Caspers, defendants below, did not appeal the joint and several judgment against them, they are the principals on the garnishment bond and Aetna’s liabilities as surety on the bond are dependent on their liability. The Rapo-sas are entitled to a joint and several judgment for damages actually sustained against Aetna and Mr. and Mrs. Caspers up to the amount of the garnishment bond and to a joint and several judgment against Mr. and Mrs. Caspers for any damages in excess of the bond amount. Because the rights of the parties are interdependent, we must treat the judgment as an entirety. Hamilton v. Prescott, 73 Tex. 565, 11 S.W. 548 (1889). Thus we must also reverse the judgment as to Mr. and Mrs. Caspers. Home Savings Ass’n. v. Southern Union Gas Co., 486 S.W.2d 386 (Tex.Civ.App.-El Paso 1972, writ ref’d n. r. e.).

In summary, the trial court’s judgment found as the Raposas’ damages:

(1) Interest on the detained funds, $1,296.00;
(2) Additional interest paid on the interim commitment to the FIRST STATE BANK OF DENTON, $1,536.75;
(3) The differential in mortgage expense, $6,398.40;
(4) The differential in construction costs, $20,480.00; and
(5) Attorneys’ fees, $1,000.00.

We affirm the judgment of the trial court in all respects except for the following: We reverse that part of the judgment finding damages for interest on detained funds of $1,296.00 and attorneys’ fees of $1,000.00 and render judgment that the Ra-posas take nothing as to these two items. That part of the judgment finding damages for the differential in construction costs of $20,480.00 is reversed and remanded to the trial court for partial new trial.


author: PEDEN, Justice.

text:
    SHESHUNOFF AND COMPANY, INC., Appellant, v. Tom SCHOLL, Appellee.
    No. 16960.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 13, 1977.
    Rehearing Denied Nov. 10, 1977.

      John H. Holloway, Houston, for appellant.
    Don W. Graul, Houston’ for appellee.
   PEDEN, Justice.

Mr. Scholl was granted a default judgment against Sheshunoff and Company, Inc., for breach of an employment contract. The trial court found that his damages in the amount of $118,000 were liquidated. Petitioner, by writ of error, complains that the evidence was not recorded, so its sufficiency cannot be reviewed; also that the petition and attached employment contract were insufficient to support a default judgment.

Scholl’s petition stated:

“NOW COMES TOM SCHOLL, a resident of Houston, Harris County, Texas, hereinafter called Plaintiff, and files this, his Original Petition complaining of SHESHUNOFF AND COMPANY, INC., a Texas corporation who may be served by serving its registered agent, WILLIAM SHESHUNOFF at 1132 One Main Place, Dallas, Texas, and for cause of action, Plaintiff would show the Court as follows:
I.
That heretofore on or about the 2nd day of June, 1976, Plaintiff and Defendant, SHESHUNOFF AND COMPANY, INC. entered into a written employment agreement providing for the payment to Plaintiff of $2,000 each month and an annual payment of seven percent (7%) of before tax profits. The agreement stated that the contract would begin on June 15, 1976 and continue for a period of five (5) years. A copy of said agreement is attached for all purposes.
On or about the 9th day of August, 1976, the Plaintiff was informed that he was no longer working for the Company and that he would not be paid from that time payment ceased.
II.
Plaintiff has at all times and in all things complied with the agreement with Defendant and Defendant through their actions totally breached the contractual relationship between them all to Plaintiff’s damage in an amount to be determined by an accounting of the profits of the corporation and payment for the period provided for in the contract.
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Court have the defendant cited to appear and file answer herein and in final hearing hereof, the Plaintiff have a judgment against the Defendant, SHESHUNOFF AND COMPANY, INC. in the amount to be determined by the Company’s profits and all monthly payments, reasonable attorney’s fees, Court’s costs and for such other and further relief to which Plaintiff may be entitled to in law and equity.”

The exhibit attached to the petition provided:

“June 1, 1976
Mr. Alex Sheshunoff, President
Sheshunoff and Company, Inc.
P. 0. Box 13203, Capitol Station
Austin, Texas 78711
Dear Alex:
This letter is intended to outline an employment relationship between Shesh-unoff and Company and Tom Scholl. Sheshunoff and Company is employing Mr. Scholl as Executive, Vice-President and General Manager. This relationship will commence on approximately June 15, 1976 (depending on Mr. Scholl working out a suitable New relationship with his Present employer). This letter of agreement will last 5 years from that date.
From June 15, 1976 until January 1, 1977, Mr. Scholl will be employed on a Part-time basis. Mr. Scholl agrees to devote one-half of his time in behalf of Sheshunoff and Company. In compensation for his efforts, Sheshunoff and Company agrees to the following compensation Package:
Base salary: $2,000 Per month.
Incentive: 7% of before tax profits, to be paid at the end of Sheshun-off’s fiscal year.
Travel costs: Sheshunoff and Company agrees to pay all reasonable out-of-pocket travel expenses incurred.
During December, 1976 an evaluation will be made concerning utilizing 100% of Mr. Scholl’s time. If it is determined that full-time employment is proper; this move will be implemented about January 1, unless it is agreeable to defer this decision.
If full-time employment is agreed upon, the compensation will remain the same as under part-time employment, except that the base salary will be increased to $4,000 per month.
Mr. Scholl will be in charge of Finance and Accounting, marketing, Production, New Product development, pricing and Administration.
For Sheshunoff and Company (signed) Alex Sheshunoff Date: June 2, 1976.”

The trial judge found that although Sheshunoff and Company, Inc. was duly served, it did not answer or appear, that the cause of action was liquidated, and he granted Mr. Scholl a default judgment of $118,000. This amounts to 59 months at $2,000 per month.

Petitioner’s first two points of error contend that the failure to have a court reporter record the testimony and file any exhibits offered requires a new trial. Sheshunoff relies on Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App.1975, writ ref.), holding that in case of default in a suit on an unliquidat-ed claim, the evidence which the trial court must hear on damages must be recorded in order to preserve the defendant’s right to review.

We conclude that the trial court was correct in deciding that Scholl’s claim was liquidated, so the Morgan Express case, supra, does not apply. Rule 241, Tex.Rules Civ. Procedure provides that where a judgment by default is rendered against a defendant and the claim is liquidated and proved by an instrument in writing, the damages shall be assessed by the court or under its direction. No other evidence need be presented. Scholl’s petition alleges that he worked from June 15 through August 9 and “from that time payment ceased.” This indicates he was paid for only one month, leaving 59 months at $2,000 per month. The judgment provides no recovery for the claim based on an additional salary of 7% of before-tax profit, a portion of the claim that was clearly unliquidated.

The plaintiff’s suit was for damages, not wages. The measure of damages was the present value of the contract if it had not been breached, a sum that is calculated by determining the amount that would have been earned and discounting it. Chief Justice Spurgeon Bell noted for this court in Dixie Glass Co. v. Pollak, 341 S.W.2d 530 (Tex.Civ.App.1960, writ ref. n. r. e., 162 Tex. 440, 347 S.W.2d 596, 1961), 91 A.L.R.2d 662, that the discount rate in that employment contract case would be 6% (the legal rate of interest at that time), citing Pollack v. Pollack, 39 S.W.2d 853 (Tex.Comm.App.1931, holdings approved). The need to make an arithmetic calculation of present value of the claim would not make it an unliquidated one. Mitigation of damages by showing other employment of the plaintiff is a defensive matter which the defendant must plead and prove. Porter v. Burkett, 65 Tex. 383; Grimes v. Bowman, 122 S.W.2d 361 (Tex.Civ.App.1938, no writ).

Sheshunoff and Company’s points 3 through 6 attack Scholl’s petition as insufficient to state a cause of action to support a default judgment. It relies on C & H Transportation Co. v. Wright, 396 S.W.2d 443 (Tex.Civ.App.1965, writ ref., n. r. e.), setting forth the following rule on the sufficiency of a petition to support a default judgment:

“. . .if the pleadings do not inform the court what judgment to render, that is, if it does not, with sufficient certainty, set forth the cause of action as to the names of the parties, dates, amounts, etc., to enable the court to render judgment without information aliunde, it is not sufficient, and the judgment cannot be sustained.”

The petition in that case lacked allegations of an employment contract, beginning and expiration dates, type of work to be performed, compensation, performance and amount due, but the petition and attached contract in our case include each of the necessary elements.

“In order to support a default judgment it is not necessary that a plaintiff set out in his pleadings the evidence upon which he relies to establish his asserted cause of action. . . . ” Edwards Feed Mill v. Johnson, 311 S.W.2d 232 (Tex.1958).
“The rules expressly countenance more general allegations than formerly were permitted, and the default judgment will stand if the plaintiff has alleged a claim upon which the substantive law will give relief, and has done so with sufficient particularity to give fair notice to the defendant of the basis of his complaint, even though he has stated some element or elements in the form of legal conclusions which will need to be revised if attacked by special exceptions.” 4 McDonald, Texas Civil Practice, 120, § 17.-23.3 (1971).

Sheshunoff and Company argues in its 7th and 8th points of error that the plaintiff’s petition failed to allege the residence of the parties and that the record fails to establish that William Sheshunoff was the registered agent of the company. The petition stated that process should be, and the return shows that it was, served on William Sheshunoff as registered agent for Sheshunoff and Co., Inc., a Texas Corporation. This service complies with Article 2.11 of the Texas Business Corporation Act, and with the Texas Rules of Civil Procedure concerning service of citation, Rules 99-107. When the petition alleges and the citation states the name of the corporation and its registered agent and the return shows service on the defendant through the named individual, no extrinsic evidence of the agent’s authority is required unless the fact of agency or authority be put in issue by an affidavit of the party served or a motion by the party to quash. 4 McDonald, Texas Civil Practice 117, § 17.23.2 (1971).

The cases cited by petitioner involve service of citation on foreign corporations. In those cases the plaintiff must make a showing that the facts support the validity of the service. 4 McDonald, Texas Civil Practice 112, § 17.23.2 (1971).

Writ of error is denied.