author: FUNDERBURK, Justice..

text:
    INDEMNITY INS. CO. OF NORTH AMERICA v. SPARRA et al.
    No. 1010.
    Court of Civil Appeals of Texas. Eastland.
    March 3, 1933.
    For majority opinion, see 57 S.W.(2d) 892.
   FUNDERBURK, Justice..

Upon the question dealt with in the court’s opinion on rehearing, the writer has been unable to reach a conclusion in accord with my associates. We all agree that the record reflects a material error. The question is not whether the error is or is not a fundamental error, but is whether, under the provisions of R. S. 1925, article 2185, the error has been waived. I concur in the view that an error complained of relating to the action of the court in giving or refusing a general or special charge or instruction will be waived unless objected to, as provided in said article 2185. It has been held that article 2185 applies to special issues the same as charges or instructions. Elec., Etc., Co. v. Ablon, 110 Tex. 235, 218 S. W. 1030, 1034. It is immaterial that such error be a fundamental error. In other words, in presenting complaint of such error to the appellate court, it is immaterial whether it is one required to be assigned, or one the court is required ordinarily to consider as a fundamental error without assignment. In either case the error, as such, is waived.

Appellant makes its contention in this case, not by an assignment of er^or, but as a proposition presenting fundamental error. The) complaint is, however, that the court erred in giving the special issue, and as such It must be overruled, regardless of whether it required assignment or not, because, under the statute, there being no objection thereto, it was waived.

Such contention, however, suggests another and different error; namely, that the judgment does not conform to the pleading. R. S. 1925, art. 2211, requires that a judgment conform to the pleadings. It also requires, with certain exceptions immaterial here, that the judgment conform to the verdict, if any. These two requirements have the effect of making a third requirement; namely, that the verdict conform to the pleadings.

The failure of a judgment to conform to the pleadings is certainly a very conspicuous example of a fundamental error. Holloway Seed Co. v. City Nat. Bank, 92 Tex. 187, 47 S. W. 95, 516. A fundamental error is not required to be presented by an assignment of error. Clonts v. Johnson, 116 Tex. 489, 294 ,S. W. 844. It is the duty of the Court of Civil Appeals to consider a fundamental error the same as any other error. Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241; Holloway Seed Co. v. Bank, supra.

The question at issue should therefoi'e be determined just the same as if the appellant was urging an assignment of error to the effect that the court erred in rendering the judgment in question, in that such judgment included recovery, as shown by the verdict of the jury, of some amount not authorized by the pleadings; ' namely, a reasonable amount of attorney’s fees for representing the appellee before the Industrial Accident Board. Parenthetically, it may be stated that such a claim could not lawfully have been made in the pleadings. The situation is no different, I think, than if the verdict on its face included a gambling debt, or .something else for which any pleading coiild state no right of recovery.

The real question then is: Conceding that, by failure to make objection, appellant waived its right to urge as error the act of the court in submitting the special issue authorizing the jury to include such attorney’s fees, does such waiver include a waiver of the right to complain of the judgment on the ground that, contrary to the express provision of the law, it does not conform to the pleadings? Is the right waived to challenge the judgment,- in that it clearly and certainly includes some amount not only not claimed in the pleadings, but which could not lawfully have been so claimed?

This court, very soon after the writer became a member, passed upon this very question in Sivalls Motor Company v. Chastain (Tex. Civ. App.) 5 S.W.(2d) 185, and determined it contrary to the present decision. Wei adhered to that view in Largent v. Etheridge (Tex. Civ. App.) 13 S.W.(2d) 974, 978, from which the majority opinion quotes. In addition to the portion so quoted, we said: “In Sivalls Motor Co. v. Chastain, supra, a judgment was sought to be reversed because of the erroneous submission of a special issue. No bill of exception had been taken. We were compelled to hold that we could not disturb the judgment on that ground because, under mandate of the statute (R. S. art. 2185), the error was waived. But it happened in that case that the very objection made to the giving of the special issue was that there was no pleading to support it. We held that, although we could not consider the error of the court in submitting the special issue, being the error assigned and relied on for a reversal, yet it was our duty to take notice of the fundamental error in basing a judgment on a verdict not supported by the pleadings.”

In this case we suggested a distinction, as respects the question now under consideration, between special issues and charges, or instructions of the court accompanying same. While in Elec., Etc., Co. v. Ablon, supra, the Supreme Court reached the conclusion that said article 2185 requiring objections to charges applied also to special' issues, it was made clear, I think, in the short concurring opinion of Judge Phillips, that there is a distinction between “charges” and “issues,” as suggested in Largent v. Etheridge. The effect of the decision was that, in submitting special issues, they were to be regarded as charges, and subject to the provision that any right to complain thereof would be waived unless objected to, but that special issues, when answered, become the verdict of the jury, manifestly something very different from charges and instructions, and a waiver of the right to complain of “charges” is no waiver of the right to complain of “verdicts.” Judge Phillips said: “Treating the special issues framed by the court as ‘the charge’ of the court within the intendment of amended Article 1971 rthat is, present Art. 2185], as I think they should be, the challenge in such a case is only of the verdict, and merely as a verdict without sufficient support in the proof. It is not a challenge of ‘the charge.’ ” (Italics ours.)

The challenge referred to was the challenge of the sufficiency of the evidence to support the verdict. A special issue, even if before it is answered, must be regarded as the charge of the court or a part thereof, to which article 2185 has been held applicable, becomes, when answered, the verdict of the jury which, as has already been said, must, perforce of other provisions, conform to the pleadings. The fact that appellant failed to object to the submission of the special issue did not constitute a waiver, I think, even of the right to challenge the verdict as not being responsive to the pleadings, but at any rate certainly it constituted no waiver of the other error consisting of the failure of the judgment to conform to the pleadings; such error so appearing from the record as to require our consideration without an assignment of error.

Let us consider for a moment the effect of a contrary holding. If the failure of a party to object to the giving of a special issue waives any right to complain that the judgment is not supported by the pleadings, then the plaintiff may, for instance, declare in his pleading upon one cause of action and be precluded from complaining of a judgment upon another and different cause of action. He may plead a cause of action for rescission of a contract, and if he fails to object to the submission of issues upon a cause of action for damages for fraud he will be precluded from complaining of a judgment conforming to the verdict but awarding recovery upon a cause of action, not only different from that alleged, but wholly inconsistent therewith. I do not believe it a reasonable construction of said article 2185 that the waiver therein provided for extends so far. On questions of res judicata the pleadings rather than the judgment must be looked to in order to determine such questions. If the law be as my associates have concluded, the pleadings would be rendered wholly valueless for such a purpose, as it could easily be immaterial what the issues tendered by the pleadings were. No such construction of the statute is necessary. Literal effect may be given to the provision, as said before, without holding that the waiver therein provided for shall extend to protect from challenge a judgment based upon an entirely different cause of action or including an entirely different item of recovery than that claimed in the pleading. Such being the case, I think it should be construed to mean what it plainly says. No implication of such far-reaching and upsetting consequence should be read into it.

Eor these reasons, in my opinion, the motion for rehearing should be granted, and the judgment of the trial court reversed, unless within a specified time appellee should file a remittitur of the item of attorney’s fees except a reasonable attorney’s fee for services in the suit maturing the award; the amount to be suggested by the court, under the authority of Houston Belt & Terminal R. Co. v. Lynch (Tex. Com. App.) 221 S. W. 959, and Southland Life Ins. Co. v. Norton (Tex. Com. App.) 5 S.W.(2d) 767.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    PRICE et al. v. POWELL et al.
    No. 2328.
    Court of Civil Appeals of Texas. Beaumont.
    March 16, 1933.
    Rehearing Denied March 22, 1933.

      T. P. Buffington, of Navasota, and Foster, Williams & Nicholson, of Conroe, for appellants.
    Dean & Humphrey, of Huntsville, for appel-lees.
   WALKER, Chief Justice.

On the 14th of April, 1930, Mrs. Mildred Price, for herself and as guardian of her minor daughter, Kathleen Price, filed this suit in trespass to try title in district court of Montgomery county against appellees, F. L. Powell, Jr., her brother, and A. A. Holmes, to recover two adjacent business lots in the town of Montgomery, Montgomery county, referred to in the record as the Price lot and the Jones lot. By amended petition filed on the 3d day of June, 1931, for herself and as guardian and next friend of her minor daughter, Mrs. Price pleaded that her brother owned title to the Jones lot but pleaded that he held the title to the Price lot in trust for her and her daughter, under a deed to him by her and her deceased husband, W. T. Price, dated December 4, 1922; she pleaded further that the brick building situated upon these two lots was built by money furnished by her and her daughter, and prayed for appropriate relief; she also pleaded that appellee, A. A. Holmes, owned and was entitled to foreclose his deed of trust lien as a superior lien to that claimed by her and her daughter. The answer of appellee Holmes presented in detail the issue conceded by Mrs. Price in her pleadings. Ap-pellee Powell pleaded not .guilty, general denial, and the following plea of four-year limitation: “For still further replication to said amended original petition, and for plea in bar thereof, these defendants say that the cause of action of the plaintiffs, if any they ever had, as undertaken to be set forth in said first amended petition, accrued more than four years before the filing of this suit, and that the plaintiffs are now barred of any right of recovery herein, if any they ever had, which is not admitted but is specially denied, by the statute of limitation of four years; and of this the defendants put themselves upon the country.”

The jury found the following facts material to this appeal: (a) The deed from Mrs. Mildred Price and her husband, W. T. Price, to F. L. Powell, Jr., dated December 4, 1922, was not “a trust deed.” (b) Mrs. Mildred Price and her daughter, Kathleen Price, furnished to F. D. Powell, Jr., $2,200 in money “in the erection of the building on property in question.” On the verdict, judgment was entered in behalf of appellee Plolmes, foreclosing his lien for the amount claimed by him, and no complaint is before us against this part of the judgment. Judgment was entered also in behalf of appellee Powell for the title to the Price lot, and in his favor against Mrs. Price and her daughter, barring them, under plea of the statute of limitation of two years, from recovering the $2,200 found in their behalf. The appeal has been duly prosecuted to this court by Mrs. Price and her daughter.

By appropriate propositions, appellants assert, under the verdict of the jury, that they were entitled to judgment against appellee Powell for $2,200, with interest at 6 per cent, per annum from the 4th day of May, 1923, the day the loan of the $2,200 was consummated, with foreclosure of their equitable lien against the property in controversy, and that the court erred in refusing them judgment under the two-year statute of limitation. By counter propositions, appellee Powell insists that appellants’ pleadings were not sufficient to support the relief asked for, but as the case was tried on the theory suggested by appellants’ propositions, and appellee has no cross assignment against the finding of the jury in appellants’ favor for the $2,200, we pretermit a further discussion of his counter propositions on this issue.

After a careful review of the facts and law, we have concluded that appellants’ propositions are without merit. The $2,200 was furnished to appellee Powell by Mrs. Price by checks, as follows: 3/13/1923, $500; 3/28/ 1923, $500; 5/5/1923, $1,000; 5/5/1923, $200. The money was furnished to build the brick house upon the Price lot and the Jones lot, for the use of a mercantile partnership composed of appellant Mrs. Mildred Price, her brother, appellee P. L. Powell, Jr., and their brother, John Powell. W. T. Price died the 11th day of May, 1925, and his will was duly admitted to probate and under the order of probate appellant Mrs. Mildred Price qualified as independent executrix of his estate on the 19th day of August, 1925. Mrs. Price continued a member of the partnership, as above described, which continuously occupied the brick building in question from the date of the completion of the building until the 16th of February, 1929, when she filed suit for dissolution of the partnership and for a receivership in its behalf. On the 7th day of March, 1929, the partnership was formally dissolved by Mrs. Mildred Price conveying to her brothers, by an instrument in writing, all her interest in the partnership.

Under the verdict of the jury, the $2,-200 was nothing more than a loan by Mrs. Price to appellee Powell, and was subject to the bar of ‘the statute of limitations of two years. This issue was established beyond controversy, for whatever may have been the terms of the original loan, and the conditions upon which it was held, more than two years elapsed from the filing of the receivership suit and from the date of the conveyance of her interest in the partnership by Mrs. Price to her brothers, to the filing of her amended petition on the 3d day of June, 1931, when, for the first time, she asserted her claim of debt. The proceedings of the receivership suit and the dissolution contract were sufficient, as a matter of law, to constitute a repudiation by appellee Powell of any trust agreement on which the money may have been held by him. But appellants have called to our attention no fact that would postpone the maturity of the loan as originally made. As stated above, the last payment on the $2,200 was made on the 5th of May, 1923. As no time for repayment was stipulated, the loan was due on demand. These facts clearly show that two-year time had run long before the amended petition was filed on the 3d day of June, 1931. The question then is, whether or not the defefise of two-year limitation was involved in the plea of the statute of four-year limitation. So far as we have been able to brief the question, with the aid of the briefs of counsel, we find that this particular issue has been before our courts only in Davidson v. Wright (Tex. Civ. App.) 233 S. W. 108; same case on rehearing (Tex. Civ. App.) 236 S. W. 776, where it was held that since a plea of limitation of four years contains all the allegations necessary to constitute a valid defense under the statute of two years, such plea will entitle the party offering it to present his proof of two-year limitation, on the proposition that the greater includes the lesser. See, also, 37 C. J. 1222 and 25 Cyc. 1408.

The court did not err in rendering judgment on the statute of two years without submitting this (issue to the jury, since the conclusion followed, as a matter of law, from the undisputed evidence.

The court did not err in barring the claim of the minor, Kathleen Price, under the statute of two years, because there was neither pleading nor proof of the extent, if any, of her interest in the $2,2Q0. Nor was there a plea filed in her behalf in bar tolling the statute of two-year limitation.

The court did not err in permitting appellee to question Mrs. Price as to certain allegations in the petition for receivership above referred to, which had been sworn to by her. These allegations were admissible in impeachment of her testimony upon the trial of this case. Nor did the court err in permitting appellee to inquire as to the partnership between Mrs. Price and her brothers, because this inquiry was essential to determination of the issues presented upon this trial. It was the theory of appellee that all money furnished by appellants during the life of the partnership was a contribution to the partnership, and that by his settlement with her in the partnership' dissolution ,he and his brother acquired title to all her interest in all funds advanced. Had he sustained this contention, he would have established a valid defense against appellants’ claim. All other testimony complained of -relating to the partnership was admissible for the reasons just stated.

No error was committed in permitting appellee to prove by A. A. Holmes and T. L. Wilcox and appellee Powell, that Robert Powell, a brother and witness for appellant Mrs. Price, had told them that appellee Powell owned the title to the Price lot. Mr.’Powell had testified to the fact that the lot was conveyed originally to P. L. Powell in trust, and this testimony was clearly admissible in impeachment. It appears, in connection with this testimony, that Mr. Holmes, before making the loan to appellee Powell, involved herein, inquired of Robert Powell as to the title of P. L. Powell to these two lots, and the testimony as to his statement to these witnesses was received only in impeachment.

It follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.


author: GADLAGHER, Chief Justice.

text:
    KRAUSSE v. DECKER.
    No. 1328.
    Court of Civil Appeals of Texas. Waco.
    Feb. 16, 1933.
    Rehearing Denied March 30, 1933.
    R. H. Mercer and R. D. House, both of San Antonio, for appellant.
    Weber & Wolfe, of San Antonio, for appel-lee.
   GADLAGHER, Chief Justice.

This appeal is from a judgment of the county court at law of Bexar county, awarding appellee, Ed Decker, a recovery against appellant, Gus Krausse, for damages sustained in an automobile collision at a street intersection in the city of San Antonio. Appellant owned a car and kept a colored chauffeur named Ernest Polk to operate the same-Appellant’s wife had full control over such car and chauffeur. Mrs. Krausse’s mother, Mrs. Forrester, lived in San Antonio. She had a car of her own, but whether she operated- the same in person or otherwise is not shown. On or about June 1, 1930, Mrs. For-rester telephoned her daughter, Mrs. Kraus-se, and asked her if she knew a colored woman she could get to do some housework. Mrs. Krausse suggested the mother of Ernest Polk, her chauffeur. Mrs. Forrester proposed to come over to Mrs. Krausse’s in her own car and get Ernest to go with her and show her where his mother lived. Mrs. Krausse replied that she would send Ernest for her. Ernest, at Mrs. Krausse’s direction, then took the Krausse car and- went to Mrs. Forrester’s residence. She got into the car, and he took her to his mother’s. On the return trip a collision occurred between the car operated by Ernest Polk and one operated by the wife of appellee. Both cars were damaged, and both Mrs. Forrester and Mrs. Decker sustained personal injuries.

Appellee thereafter instituted this suit against appellant to recover damages for injuries sustained by his wife and for injury to his car. Appellant denied any negligence on the part of his chauffeur at the time of the- accident, and charged various acts of negligence against Mrs. Decker in the opera^ tion of appellee’s car at that time. He also alleged that his car was not at the time of the accident operated for or on his behalf nor by his direction or under his control. 1-Ie also sought by cross-action to recover damages for injuries to his ear.

The case was submitted to a jury on special issues. The jury found, in. responso thereto, that Ernest Polk was guilty of various acts of negligence in the operation of defendant’s car at the time of the collision, and that the same were proximate causes thereof. The jury further found in answer to such issues that appellee’s wife was not guilty of any of the acts of negligence in the operation of her car charged against her by appellant. Appellant’s legal liability for the negligence of his chauffeur in the operation of his ear at the time of the collision was submitted by a single issue, which issue and the answer of the jury thereto were as follows: “Do you find from a preponderance of the evidence that at the time of and immediately before the accident in question, the driver of defendant’s automobile was acting in pursuance to instructions received from the defendant’s wife? Answer: Yes.”

The court thereupon awarded a recovery in favor of appellee against appellant for the sum of $800, the aggregate amount of damages assessed by the jury.

Opinion.

Appellant presents a group of assignments in which he complains of the refusal of the court to submit his requested issues to the jury for determination. Said issues, though several in number, were all so framed as to invoke an affirmative finding by the jury on his defensive contention that his car and chauffeur were at the time of the accident being used by BIrs. Forrester for a purpose of her own, and that such chauffeur in the operation of the car was under her immediate control and direction, and at the time of the collision, in legal contemplation, her servant or representative. Where the owner of a motor vehicle transfers it, with his chauffeur, to the service of a third person, lia-i bility as between him and the third person for the negligent acts of the chauffeur in operating the vehicle depends upon which oj£ them has at the time the right to control the chauffeur in the performance of his duties, not merely as to the result to be reached but as to the method of reaching the result. 42 O. J. p. 1097, § 859; 39 O. J. p. 1274, § 1462. Such transfer may be for hire or for mere accommodation. In either case the rule is the same, but it has been said that, when the transaction is a loan, the trend of authorities is toward the holding that the chauffeur becomes in such cases the servant of the borrower. The mere fact, however, that the transaction is a loan does not as a matter of law make the chauffeur furnished by the owner of the vehicle the servant or representative of the borrower. Such issue must be determined from the language of the contract or agreement between the parties, construed in the light of attending circumstances, and, where such contract or agreement is vague or inconclusive on such issue, a jury question is presented. 5 Tex. Jur. p. 772, § 154; Hooper v. Brawner, 148 Md. 417, 129 A. 672, 42 A. L. R. page 1437 et seq., and note beginning on page 1446; Riggs v. Gallett (Tex. Civ. App.) 300 S. W. 185; Miller v. Diamond (Tex. Civ. App.) 25 S.W.(2d) 659, 661, par. 4; McCarthy v. Fifty-Fifty Auto Livery (Tex. Civ. App.) 16 S.W.(2d) 349; Atlantic Coach Co. v. Curtis, 42 Ga. App. 639, 157 S. E. 344, 345, par. 2; Lang v. Hanlon, 302 Pa. 173, 153 A. 143 145, par. 6.

Appellant’s wife, with implied consent and authority from him, sent his ear and chauffeur to take BIrs. Forrester on a trip to secure the services of a housemaid. The substance of the conversation between her and Mrs. Forrester in that connection has been hereinbefore set out. The language used by appellant’s wife did not purport to grant express authority to BIrs. Forrester to control and direct the chauffeur with reference to the manner in which he should operate the car on the trip. Neither did it indicate that such authority was withheld. The intention of the parties with reference to this issue must therefore be ascertained by .inference from the language used and the attending circumstances. The rule applicable in such cases in this state was clearly announced by Chief Justice Stayton in the case of Stooksbury v. Swan, 85 Tex. 563 et seq., 22 S. W. 963. We quote therefrom (page 573 of 85 Tex., 22 S. W. 963, 967), as follows: “In all cases, the existence or nonexistence of the facts the evidence tends to prove, if there be conflict, as well as the existence or nonexistence of the fact to be inferred from other facts, must be left to the determination of the jury.” See, also, Maryland Casualty Co. v. Williams (Tex. Civ. App.) 47 S. W.(2d) 858, 859, par. 2, and authorities there cited.

Appellant was entitled under the testimony in this case to have an affirmative submission of this defense, and the court erred in refusing to submit the same.

Appellant’s other assignments of error present matters which will not necessarily arise in the same way, if at all, on another trial. The judgment of the trial court is reversed, and the cause remanded.


author: MARTIN, Justice.

text:
    HAMILTON v. MARONEY.
    No. 3966.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 22, 1933.
    Rehearing Denied March 29, 1933.

      J. Shirley Cook, of Vernon, for appellant.
    Killough & Dotson, of Vernon, for appel-lee.
   MARTIN, Justice.

The appellant owned land in' Wilbarger county. The appellee was a tenant, claiming a rental contract on one of appellant’s farms for the year 1932, alleged to have been made with Claude Hamilton, son of appellant] The authority of the son to make this contract furnishes the basis for the controlling legal issues involved here.

The jury "returned findings, the effect of which was to support appellee’s theory that Claude Hamilton had both express and apparent authority to make the rental contract in question. These findings are under attack for the alleged insufficiency of the evidence to support each of them.

Passing on such a question, the appellate court is under the duty to take in its most favorable aspect the evidence' given in support of the findings. Porter v. Cluck (Tex. Civ. App.) 13 S.W.(2d) 130.

We are not able to say that the facts and circumstances in evidence were such that only one reasonable conclusion could be drawn from them. If they were of the character which would justify reasonable men in reaching different conclusions, the case should be submitted to the jury, and its finding in that event is binding on the appellate court. Wininger v. Railway Company, 105 Tex. 56, 143 S. W. 1150; Reed v. Hester, (Tex. Com. App.) 44 S.W.(2d) 1107, 110S, and authorities there collated.

Measured by the above rules, the facts in evidence here demand from us an affirmance of this case. Some of the material facts are: The land in controversy was rented to appellee for the year 1931 by Claude Hamilton acting as the agent of appellant. Appellant testified, in part, regarding the authority of Claude Hamilton:

“He knows more about men than I do and ’ I tell him if it is all right with him it is all right with me. That is, if they are good men and he wants him, but we did not rent to this man. * * *
“Q. So you really rely on your son Claude to look after ‘your affairs and rent out your places, don’t you? A. Ves, because I can’t get around. * * *
“Q. But outside of this particular section he has rented other land out for you, has he not? A. Outside of that section?
“Q. Ves. A. I guess there is some living on it.
“Q. I-Iow many sections do you have out there? A. Only two.
“Q. Do you know whether he has rented any of the other out or not? A. I think he has rented some. * * *
“Q. Vou had no objection to Mr. Maroney unless Mr. Hamilton wanted to work the land himself, did you? A. No sir, I 'did not I did not know much about it. * * *
“Q. And he has been looking after your business for several years? A. Ves, sir. Him and his wife are good to me and I could not hardly do without them.
“Q. And they look after you and your business and take care of you and everything? A. Ves sir.”

The appellee testified positively that he rented the place from Claude Hamilton, conditioned on his financing himself, and that he did arrange to finance himself, and so notified Claude Hamilton; that he then proceeded to prepare the land for the crop of 1932; that there was about one hundred acres of it. The appellant and her son both denied that appellee had rented the land. Appellant never had a conference with appellee about the matter; it appearing that she trusted all negotiations to her son, and that he looked after her affairs. It is probably inferable that appellant denied the authority • of her son to make the specific contract in question, but her denial in this regard is not conclusive. Reed v. Hester (Tex. Com. App.) 44 S.W.(2d) 1107, 1109. The relation of principal and agent may exist whether the parties so understood it or not. It may be established by circumstances, among others the recognition by the principal of acts of the agent similar in character to those in controversy. Osborne & Co. v. Gatewood (Tex. Civ. App.) 74 S. W. 72; International & G. N. Railway Company v. Ragsdale, 67 Tex. 24, 2 S. W. 515. The appellant was equally bound by the authority which she actually gave and by that which by her own acts she appeared to give. Osborne & Co. v. Gatewood, supra. The real question in all cases of apparent authority is, not what was the authority actually given, but what would a third person dealing with the agent as such be justified in believing his authority to be. 2 Tex. Jur. pp. 426, 427; Ford Motor Co. v. Maddox Motor Co. (Tex. Civ. App.) 3 S.W. (2d) 911.

The jury having found, upon what we believe was sufficient evidence, that actual authority had been given by appellant to her son, she was bound by his statements, and the assignment questioning these passes out of the case, and will not be discussed.

The judgment is affirmed.


text:
    WITT v. McCROHAN.
    No. 3890.
    Court of Civil Appeals of Texas. Amarillo.
    March 22, 1933.
    Reynolds & Heare, of Shamrock, for appellant.
    Sanders & Scott, of Amarillo, for appellee.
   MARTIN, Justice.

Appellee filed suit against appellant upon five vendor’s lien notes and for foreclosure of his vendor’s lien on a section of land in Wheeler county.

The substance and effect of appellant’s answer was that appellee had agreed in writing to purchase the section of land against which foreclosure proceedings were filed for a total consideration of $5,120, the notes sued on, amounting in the aggregate to $2,900, to be canceled, the remainder of the-consideration to be paid “in cash or its equivalent.” Abstract of title showing merchantable title was to be furnished to said land and the deal closed on or before thirty days. The contract was dated the 11th day of March, 1931. Appellant further alleged that “the term ‘or its equivalent’ was then and there agreed upon by the parties to said contract to mean that the plaintiff G. O. McCrohan would, if the cash were not paid, execute and deliver to the defendant his three vendor’s lien notes in equal amounts in the aggregate amount of the balance of the consideration recited, said notes to be due on or before one, two and three years after date respectively,” etc. He alleged compliance with all of its terms and asked for its specific performance.

To this appellee replied, in substance and effect, that the contract of sale pleaded by appellant was a simulated one and made and entered into for the accommodation of and at the request of appellant for the purpose of terminating a lease on same which had been made subject to sale and to enable appellant to obtain and deliver possession to a purchaser;

The court submitted the 'following issues to the jury:

“Question 1. Do you find that the plaintiff, McCrohan, entered into the sales contract introduced in evidence in this case at the request of the defendant, Witt, and as an accommodation to him, Witt, in order that he, Witt, might use said contract in consummating the sale of said land to one Bailey?” Answer: “No.”

“Question 4. At the time of the execution of the sales contract introduced in evidence, was it agreed by and between McCrohan and Witt that the term ‘or its equivalent,’ as used in such contract should mean that the plaintiff, McCrohan, would, if the cash was not paid, execute and deliver to Witt his three vendor’s lien notes, in equal amounts, in the aggregate amount of the balance of the consideration for said land?” Answer: “No.”

Both parties filed motions for judgment. That of the appellee was granted. Appellant assigns error to this action of the court and claims that under the findings of the jury and the undisputed evidence he made out his case of specific performance and was entitled to judgment.

Appellee contends here that the contract in question cannot be specifically enforced because of the stipulation therein for the payment of a part of the purchase price in cash “or its equivalent.”

If the last phrase, unexplained, renders uncertain, indefinite, or ambiguous the portion of the contract pertaining to the consideration, such contention must be sustained. 58 O. J. 937. Appellant attempted to make certain that which was plainly left indefinite and uncertain by pleading and proving that the agreement between himself and appellee as to the phrase “or its equivalent” was that three vendor’s lien notes were to be executed and delivered and to be accepted by him as the equivalent of cash. The jury, however, in resp'onse to the quoted issue submitting this matter, found against appellant. No other issue was requested and no testimony of extrinsic facts regarding this matter was given in evidence other than that pertaining to the three notes already mentioned. By the terms of the contract appellee had the privilege of paying the equivalent of cash. Of such a term Judge Gaines has said: “The meaning of the provision is not clear. It is not easy to conceive what is intended to be embraced by the use of the words ‘its equivalent;’ but to be equivalent to cash must be something commercially as good as cash, or, as we taire it, something that could readily be converted into cash at a fixed price.” Kellogg v. Muller, 68 Tex. 182, 4 S. W. 361, 362. See, also, Hassard-Short v. Hardison, 117 N. C. 60, 23 S. E. 96.

What did the parties intend by this stipulation ? And have their minds met upon this phase of the contract? Does the use of this phrase leave the matter open for further negotiations and future dispute? Just what kind of a judgment could we enter requiring specific and exact enforcement of this portion of the contract?' If the appellee has property which he regards as “the equivalent of cash,” will a court of equity, over appellant’s objection that it is not such^ compel him to take it? The question presented is an original- one in Texas in its facts, but we think its solution is plainly indicated by the general rules governing a court of equity in a-suit of this nature which we now quote. It will be admitted, of course, that the remedy of specific performance is purely an equitable proceeding and belongs exclusively to the jurisdiction of courts of equity.

A greater degree of certainty is required in the terms of a contract which is to be specifically enforced in equity than is necessary in one which is to be made the basis of an action at law for damages. A multitude of authorities on the point under discussion are collated in 65 A. L. R. at page 102.

“It is an elementary principle governing courts of equity in the exercise of this jurisdiction, that a contract will not be specifically enforced unless it is certain in its terms, or can be made certain by reference to such extrinsic facts as may, within the rules of law, be referred to, to ascertain its meaning.” Stanton v. Miller, 58 N. Y. 192, 200. ..

“The contract must be concluded, certain, unambiguous, and upon a valuable consideration ⅜ * ⅜ and finally it must be capable of specific execution through a decree of the court.” Pomeroy’s Equity, § 1403.

“The contract must not leave a material and essential term or element for future negotiations and settlement.” 58 O. J. p. 940.

“A court of equity will not decree specific performance of a contract which does not fix the price or consideration clearly, definitely, certainly and unambiguously, op provide a way by which it can be fixed with certainty.” 58 O. J. 937.

“To make a valid contract both parties must assent to the same thing” in the same sense and their minds must meet as to all the terms. If any portion of the proposed terms is not settled or no mode agreed on by which it may be settled, there is no agreement.” 13 O. J. 264.

“Any engagement to furnish security of satisfactory character is too indefinite and uncertain for specific performance.” Longino v. Webb Press Go., 132 La. 25, 60 So. 707.

And, finally, in Texas it is decided that: “A contract is certain and definite in its terms if it leaves no reasonable doubt as to what the parties intended and no reasonable doubt of the specific thing equity is called upon to have performed.” Wilson v. Beaty (Tex. Civ. App.) 211 S. W. 524.

These universally recognized principles which control a suit of this character make the conclusion inescapable, in our opinion, that the clause mentioned is of such an uncertain and ambiguous character as to make impossible the entry of a certain, definite, and unambiguous decree capable of enforcement, and the action of the trial court in refusing to attempt it was proper. Particularly is this true where the jury has made a negative response to the issue submitted intended to clarify and make certain the ambiguous portion of the contract.

This sufficiently disposes of this appeal. We mention briefly, however, the contention of appellee that appellant did not perform the conditions of his contract and was in default, for which reason he could not legally maintain a suit for its specific performance. It is elementary that a party in default cannot sue for the specific performance of his contract. Braig v. Frye, 199 Iowa, 184, 199 N. W. 977; 58 C. J. 1161; Beldon v. McColl (Tex. Civ. App.) 21 S.W.(2d) 87.

The appellant contracted to deliver an abstract showing merchantable title within thirty days. The contract is dated March 11, 1931. The original abstract which was tendered by appellant has been sent up as a part of the record. This shows to have been certified to on the. 20th day of October, 1931. It was later supplemented and a release of an oil and gas lease is shown in the supplement. This is dated the 15th day of February, 1932. This supplement shows taxes for 1930 and 1931 unpaid. The amount of the 1930 taxes are not shown. Appellee’s first amended original petition was filed on January 29, 1932. We think the evidence was amply sufficient to sustain a finding that appellant was in default. No issue was requested of or submitted by the court on this matter. We will here presume it to have been found by the trial court in such way as to support the judgment. This makes it unnecessary to notice the many defects in the title pointed out by appellee and alleged to have the effect of destroying its merchantability.

The judgment is affirmed.


text:
    JONES v. CITY OF UVALDE.
    No. 2365.
    Court of Civil Appeals of Texas. Beaumont.
    March 28, 1933.
    Rehearing Denied March 29, 1933.
    Atlas Jones, of Uvalde, for appellant.
    G. B. Fenley, of Uvalde, for appellee.
   WALKER, Chief Justice.

This suit was instituted in the district court of Uvalde county by appellant, Atlas Jones, against appellee, city of Uvalde, a municipal corporation, to annul an ordinance passed by appellee’s city council abolishing the offices of city engineer, city attorney, and city treasurer; to establish his right to the office of city attorney of appellee; and for writ of injunction restraining appellee from paying out money to attorneys at law other than appellant for performing the duties of city attorney; and to restrain appellee from collecting charges for water and sewer service, and from collecting its city taxes “until it shall have a treasurer under sufficient bond” to receive and hold the funds thus collected. The appeal is from judgment of the lower court sustaining the general demurrer to appellant’s petition. The case is on the docket of this court under order of transfer by the Supreme Court.

It is not necessary to state the grounds of appellant’s attack upon the ordinance in issue, because no affirmative relief is asked, based upon the invalidity of the ordinance. It is the law that courts have no general power to nullify legislative acts, and can inquire into their validity only to prevent private injury. Simms v. City of Mt. Pleasant (Tex. Civ. App.) 12 S.W.(2d) 833, 834.

The petition was insufficient to show •that appellant-had been elected to the office of city attorney. He alleged that he filed, his name with the city council as a candidate for this office, that- it refused to print his name on the ticket, and that he requested the voters living within the municipal corporation to write his name on the ticket, and that, at'the municipal election duly held on 'the 7th of April, 1931, 122 voters wrote his name on their tickets as their candidate for the office of city attorney. He failed to allege that he was the only candidate voted for, and that he received a majority of the votes cast for the office of city attorney. If his petition cou'ld be construed as an effort to compel the appellee to recognize him as its city attorney, then he was not entitled to the general intendments of his petition, but it was necessary for him to allege affirmatively the facts entitling him to the office, and to negative all facts that would defeat his claim. In tliis respect, as stated, the petition was wholly insufficient.

Even, if appellant had shown himself entitled to the office of city attorney, he was not entitled to ..an injunction restraining ap-pellee from employing other attorneys in connection with its litigation. As city attorney, appellant would have the right to appear officially in such litigation, but that would not deprive appellee of the power to employ counsel to assist him. If, as city attorney, appellant was entitled to certain fees of office, the fact that appellee was employing other counsel would not defeat his claim. In this connection, appellant did not pray for any recovery against appellee, but only to restrain it from employing other counsel.

If it be conceded that the ordinance abolishing the office of city treasurer was void, that would not justify appellant in refusing to pay his taxes and the charges due by him to appellee for water and sewerage. There was no allegation that it was the treasurer’s duty to collect the taxes and the other charges, but the reasonable intendment of his petition was that other officers and agents of appellee collected the taxes and the water and sewerage charges. It requires no citation of authority to sustain the proposition that these officers could not be restrained from performing their duties because there was no treasurer to receive from them the funds thus collected.

The judgment of the lower court sustaining the general demurrer is in all things affirmed.


author: JACKSON, Justice.

text:
    HOME FIRE & MARINE INS. CO. v. SWANNER.
    No. 3974.
    Court of Civil Appeals of Texas. Amarillo.
    March 8, 1933.
    Bledsoe, Crenshaw & Dupree, of Lubbock, for appellant.
    Levens, McWhorter & Howard, of Lubbock, for appellee.
   JACKSON, Justice.

The appellee instituted this suit in the county court of Lubbock county to recover the sum of $500 evidenced by a fire insurance policy issued to him by appellant.

He alleged that on October 7,1931, he was the owner of a hotel building and the furniture therein, situated in Justiceburg, Tex., on which date the appellant, for a valuable consideration paid, delivered to him a policy insuring said building for the sum of $300 and the furniture therein for the sum of $200 against loss by fire during the' period of one year; that on November 27th thereafter, and while the policy was in full force and effect, the building and furniture were totally destroyed by fire. He alleged the value of the property destroyed, that he gave notice thereof, and furnished proof of loss as the policy required.

The appellant answered by general demurrer, general denial, and pleaded the stipulation in its policy reading as follows: “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the interest of the insured in the property be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple.”

That no agreement indorsed upon the policy or added thereto rendered it valid, and that appellee was not at the time of taking out the insurance, nor at any time thereafter, the unconditional and sole owner of the property insured nor the. owner in fee simple of the land on which the building was located. That appellee’s title to the building and ground was based on a purported substitute trustee’s deed. That such deed is void because the deed of trust under which he purported to act designated Ira Lee Duckworth as trustee, and provided upon his failure or refusal to act that a substitute trustee might be appointed and required that notices of the sale be posted in three public places in Garza county. That Ira Lee Duckworth did not fail or refuse to act as trustee, and was in no way disqualified from acting, and the purported appointment of a substitute trustee was unauthorized, and conferred upon him no power to sell the property as such substitute trustee under the power of sale in the deed of trust. That notice of the sale was not posted, and appellee had no lien upon the furniture and fixtures, and had no title thereto.

In response to special issues submitted by the court, the jury found, in effect, that the furniture and fixtures insured were of the value of $416.90, and that Ira Lee Duck-worth did refuse to act as trustee and sell the property.

On these findings the court rendered judgment against appellant for the sum of $500, with interest thereon at the rate of 6 per cent, per annum from the date thereof.

The appellant challenges the sufficiency of the testimony to support the finding of the jury to the effect that Ira Lee Duckworth refused to act as trustee and sell the property under the deed of trust.

The appellee testified that he knew Mr. Duckworth was the trustee in the deed of trust, and that it provided for a commission of 5 per cent, for the sale and he desired to avoid all the expenses possible; that he called on the trustee, and advised him that the parties were in default, and that he wanted possession of the property, asked him about making out the notices, and Mr. Duckworth advised him that he had a lot of work to do, and was not trustee by his own choice, and did not solicit that position; that he informed Mr. Duckworth: “If you will let me, I will get some one else,” and he said he had no objection to me appointing a substitute trustee; that all of the furniture, except a few designated articles, was in the hotel at the time of the sale by the substitute trustee; that he had no bill of sale to such articles; that he had no lien on such furniture, but took possession thereof by virtue of his purchasing the land and improvements at the sale by the substitute trustee.

Mr. Ira Lee Duckworth testified that he was cashier of the Citizens’ National Bank, trustee in the deed of trust; that he had a conversation with Mr. Swanner about acting as trustee to sell the property; that there was something said about posting notices and the expense of it; that Mr. Swanner said he had some one who would act in that capacity without charge, and, if it was all right, he would secure the services of a substitute trustee.; that he replied to Mr. Swanner that it was perfectly all right, but that he did not refuse to act as trustee, but did agree that it was satisfactory to him for Mr. Swanner to appoint a substitute.

The record shows that after this conversation Mr. Swanner did appoint Mr. Stagg as substitute trustee, who acted in that capacity and sold the property under the deed of trust.

In Rawlings et al. v. Lewis et al., 191 S. W. 784, 786, this court says: “Under the deed of trust Slaughter was not authorized to sell until he had been reguested thereto by Rawlings. His failure or refusal until so requested was not sufficient under the power, to clothe the holder of the note with the power of substitution. The mortgagor had the right to demand that the named mortgagee first make the request of the trustee, upon whom they had agreed, before a sale could be made. The powers of that trustee were dormant and not effective until the proper request was made. When Powel’s attorney requested a waiver, and that Slaughter notify Rawlings he would not execute the trust, Slaughter was then refusing something he could not then execute, and with which he was not then vested with the power to execute. Had he thereafter been called upon by Rawlings to sell, he could have done so, regardless of his waiver in favor of Stalcup. This waiver did not enlarge the powers of the holder of the notes, or lessen the rights of the mortgagor to have the property sold according to the terms of the .deed.It cannot logically be said Slaughter failed and refused to execute a trust according to its terms when the request necessary to his power was never made. He could not fail or refuse to make a sale which, if then attempted, would not have been a sale. The power of substitution depended on his failure or. refusal to make a sale. He simply, by his waiver, failed and refused to do an unlawful or a void thing. It is urged because of the declaration that he would not execute the trust that this was an unequivocal refusal, and that therefore the power of substitution existed. If the proper request had been made he may not have refused the duty.”

In Hart v. Estelle, 34 S.W. (2d) 665, 669, the Court of Civil Appeals at Austin holds that:

“The sale must have been at the request of Gillis, unless he in fact refused to act. Boone v. Miller [86 Tex. 74, 23 S. W. 574], supra; Michael v. Crawford, 108 Tex. 352, 193 S. W. 1070; Bomar v. West, 87 Tex. 299, 28 S. W. 519; Bowman v. Oakley (Tex. Civ. App.) 212 S. W. 549.
“The appointment of Wallace was unauthorized, since Gillis did not in fact refuse to act. The recitals in the trustee’s deed were only prima facie evidence thereof, and no rights of bona fide purchasers are involved.”

Under the testimony Mr. Swanner never requested Mr. Duckworth, the trustee, to sell the property under the power of sale, and said trustee never refused to exercise the power of sale under the deed of trust, and under this testimony and these authorities the sale was invalid, and the appellee was not the sole and unconditional owner, and did not have fee-simple title to the land on which the improvements were situated. It is obvious under his testimony that he was owner of but a small portion of the furniture.

In Fireman’s Fund Ins. Co. v. Wilson, 284 S. W. 920, 921, in determining the right of the insured to collect insurance upon a house, an interest in which he had acquired by a void sale under a chattel mortgage, the Commission of Appeals says: “Because the sale was void, Fullerton acquired no rights, either legal or equitable, in the property by means of said sale. The rights of the parties in the property continued to stand as they did before the ineffectual sale. Fullerton’s rights and interest in the property remained the same as before. * * * His interest in the property, therefore, was not, at the time of the issuance of the policy, or of the destruction of the building by fire, an unconditional and sole ownership within the meaning of the clause of the policy which we have quoted. Therefore, the policy was, by its terms, avoided; and the plaintiff in error is not liable thereunder. 26 Corpus Juris, pp. 178, 179.” See, also, Winfrey v. Girard Fire & Marine Ins. Co., 120 Tex. 436, 38 S.W.(2d) 1099; Eureka Security Fire & Marine Ins. Co. v. De Ross (Tex. Civ. App.) 40 S.W.(2d) 924, and authorities therein cited.

The record discloses that the appellee paid the premium and the fire occurred about fifty days after the policy was issued, and appellant made no offer to return the unearned portion of the premium paid.

The insurance contract provides: “If this policy shall be cancelled * * * or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this Company retaining the customary' short rate; except that when this policy is cancelled by the Company by giving notice, it shall retain only the pro rata premium.”

Appellee did' not plead either waiver or es-toppel relative to the sole and unconditional ownership clause of the policy. Scott v. Liverpool, London & Globe Insurance Co., 102 S. C. 115, 86 S. E. 484.

If errors are presented in the other assignments urged, they can readily be corrected on another trial.

The judgment is reversed, and the cause remanded.


author: PELPHREY, Chief Justice.

text:
    C. A. DUNHAM CO. v. McKEE et al.
    No. 2804.
    Court of Civil Appeals of Texas. El Paso.
    March 2, 1933.
    Rehearing Denied March 23, 1933.
    Leo. L. Heisel, of El Paso, for' appellant.
    Breedlove Smith, O. R. Armstrong, and Leo Jaffe, all of El Paso, for appellee.
   PELPHREY, Chief Justice.

On August 22, 1929, the board of trustees of the El Paso independent school district awarded R. E. McKee, a contractor of El Paso, Tex., the contract to build a public school building in El Paso, Tex. A written contract was entered into in which the contractor was required to furnish a bond for $27,000 conditioned for the faithful performance of his contract, and that he should promptly pay for all labor and material furnished, either to him or to any subcontractors. Thereafter McKee made a contract with Elliott Engineering Company to do a part of the work on the building.

Appellant, on December 5, 1929, sold to Elliott Engineering Company material in the sum of $78S.0S.

The building was completed by McKee and accepted by the board of trustees, and on or about the 5th day of February, 1930, the board of trustees paid to McKee the remainder of the contract price thereon.

On January 25, 1931, appellant filed with the board of trustees a certified copy of its claim against the Elliott Engineering Company, and thereupon the board of trustees furnished appellant a certified copy of the contract and bond.

Appellant, on February 3, 1931, filed this suit against Elliott Engineering Company, R. E. McKee, and the board of trustees, seeking to recover jointly and severally from them the amount of its claim.

In its petition appellant set out the provision of the contract, between McKee and the board of trustees, relative to the execution of a bond by McKee, and attached to and made a part of its petition the said contract and the bond executed by McKee.

The basis of its recovery against McKee was then alleged as follows: “That under and by virtue of said contract and bond, the said R. E. McKee, Contractor, became bound and obligated to promptly pay for all labor and material used in or furnished for such work, whether furnished to the contractor or subcontractors, if any, in accordance with the plans and specifications for said building.”

It then alleged its contract with Elliott Engineering Company and the furnishing to it of the material, which was followed with the further allegation:

“That on or about the 5th day of February, 1930, after the completion and acceptance of said Zavala School Building, under the terms and conditions of said contract, the said owners paid to said contractor, all moneys due, including the 15% agreed to be retained under the terms of said contract; that at the time of the final settlement no satisfactory evidence was submitted and no affidavits made by the contractor, that all just bills for labor and materials furnished under the terms of the above contract, whether furnished to the contractor or subcontractors, had been paid in full as provided by Article 5160 of the Revised Statutes of Texas, as amended.”

“8. That by reason of the failure of the Owner to hold said 15% as provided for in said contract, as provided for in said Article 5160, of the Revised Statutes of Texas, plaintiffs were damaged in that the sub-contractor failed and refused to pay for the goods, wares and materials furnished it, which goods, wares and materials were used in the construction of said Zavalla School Building under the terms and specifications us above set forth.”

Appellant also alleged the insolvency of the Elliott Engineering Company.

The petition then concludes with the following allegation: “That no part of said sum of $788.08 has been paid by the Owners, Contractors- or sub-contractors and that there is due and owing from said defendants, jointly and severally, to the plaintiff, under the terms and conditions of said Contract, and under' and by virtue of the Owners having paid to the said Contractor, the full amount of the Contract price without having received proper evidence of the payment for such materials, the full sum of $788.08, interest and costs of suit; that payment thereof has often been demanded and the same is long past due; that attached to the original petition is a fully itemized and verified statement of the account, to which reference is hereby made.”

R. E. McKee answered by general demurrer and general denial, and specially excepted to appellant’s petition because its claim was not recorded with the county clerk of El Paso county within ninety days from the date of the delivery of the material as required by article 5160, R. S. (as amended by Acts 1929, c. 226, § 1 [Vernon’s Ann. Civ. St. art. 5160]). I-Ie further pleaded the one-year statute of limitations.

The board of trustees demurred generally to the petition and generally denied the allegations thereof.

It further specially excepted thereto on the ground that suit was based upon a contract between appellant and the Elliott Engineering Company; that the petition showed upon its face that no privity of contract existed between appellant and the board; that, if any cause of action was shown, it was based on tort for which appellant had no legal right to sue; that appellant, by failing to comply with the provisions of article 5160, as amended, was estopped to complain of the board’s neglect in securing from the contractor satisfactory evidence or affidavits that all labor and material had been paid for.

The cause was tried before the court, who, upon appellant’s motion, filed findings of fact and conclusions of law.

The trial court’s conclusions of law read:

“1. The obligation of the contractor to pay for material furnished to sub-contractors on a public work arises solely by virtue of the bond required by Article 5160. To recover on the bond the materialman must comply with the statutory conditions, by filing the itemized statement with the County Clerk as required by Article 5160, as amended, the Acts of 1929, Forty-first legislature. (See Texas Company v. Schriewer [Tex. Civ. App.] 38 S.W.(2d) 141).”
“2. An Independent School District, after the completion and acceptance of a school building, paying the contractor the amount remaining due thereon, without requiring affidavit of the contractor and satisfactory evidence that all just bills for labor and material has been paid, is not liable to one furnishing material to. a sub-contractor who files his-claim with the Board long subsequent to such unwarranted payment.”
“3. The honcl is not released as to a ma--terialman by an unwarranted payment by the Board to the contractor.”

This appeal has been prosecuted from the judgment denying appellant any recovery against either McKee or the board of trustees.

Opinion.

Appellant, in its brief, attacks the three conclusions of law filed by the trial court, but now admits that it is in error as to the third conclusion.

Appellant argues that the liability of McKee to it arose by virtue of the contract he executed to the board of trustees and not by virtue of the bond, and therefpre the court erred in concluding that his obligation to pay for the material furnished arose solely by virtue of the bond, and that it was necessary for a recovery that appellant comply with the requirements of article 5160, as amended by Acts 1929, c. 226, § 1 (Vernon’s Ann. Civ. St. art. 5160).

The third paragraph of the contract between McKee and the board of trustees reads: “It is stipulated and agreed that the contractors shall and will enter into bond, to be approved by the owner in the sum of Twenty-seven Thousand ($27,000.00) Dollars, conditioned for the faithful performance of this contract, in all its items and details; and conditioned, further, that the contractor shall promptly pay for all labor and material used in or furnished for such work, whether furnished to the contractor or sub-contractors, if any, in accordance with the- above mentioned plans and specifications and said General Conditions, and in strict accordance with the laws of Texas relative thereto.”

Appellant’s contention is that the portion of the above paragraph relating to paying for labor and material by McKee constituted a contract executed for the benefit of those furnishing labor and material, and therefore upon which they could maintain an action. This contention is, we think, unsound.

The paragraph admits of only one construction, and that is, that McKee obligated himself to give the bond provided for in article 5160, as amended, and the fact that the contract enumerates the conditions of the bond to be given could not, in our opinion, be held to constitute the making of a contract for the benefit of those furnishing materials used in the erection of the building.

Appellant, however, also alleges that McKee became liable to it under and by virtue of the giving of the bond.

The bond which the contract called for McKee to give was the one provided for by article 5160, and a person attempting to recover by reason thereof would, we think, necessarily be called upon to show that he had complied with the requirements of that statute.

Such a rule as to the sureties is well established, American Surety Co. v. Axtell Co., 120 Tex. 166, 36 S.W.(2d) 715; American Surety Co. v. Alamo Iron Works (Tex. Com. App.) 36 S.W.(2d) 714; Ætna Casualty & Surety Co. v. Woodward (Tex. Com. App.) 36 S.W.(2d) 721, and we see no reason why the same rule should not apply to the principal. .It follows, therefore, that appellant has shown no right of action as against McKee, and the judgment of the trial court that appellant take nothing as to him must be affirmed.

Article 5160 was amended by the Eorty-First Legislature, 1929 (Vernon’s Ann. Civ. St. art. 5160), and the concluding paragraph of the amending article reads: “Provided further that after completion and acceptance of completed project.all moneys due contractor under said contract shall be held by the State or its counties or school districts or other subdivision thereof or any municipality until such a time that satisfactory evidence is submitted and affidavits made by the contractor that all just bills for labor and material under this contract have been paid in full by the contractor.”

Appellant alleged in its petition that it was damaged by the failure of the board of trustees to hold the 15 per cent, as provided in the contract in accordance with the above provision, and now argues that the board of trustees is liable to it for its claim by reason of its paying over to McKee the full amount of the contract price on the building without requiring satisfactory evidence and affidavits from him that all just claims for labor and material had been paid.

At the time the above-quoted provision was enacted, our-statutes contained two separate provisions for the protection of the furnishers of labor and material on public works, viz., article 5160, which required the giving of a bond by the contractors conditioned for the payment to all persons supplying him with labor and materials, in the prosecution of the work, and articles 5472a and 5472b, giving the furnisher of labor, material, apparatus, fixtures, or machinery a lien upon the moneys, bonds, or warrants due or to become due the contractor, and requiring the official whose duty it was to pay the contractor, after having been notified in writing of the claim, to retain a sufficient amount of the money, bonds, or warrants to pay the claim in case it was established in a court of proper jurisdiction.

‘ Article 5160, before it was amended in 1929, contained a provision that a furnisher of material or labor must file .a sworn itemized statement of his claim with the contractor or the county clerk of the county in which the work was being prosecuted within thirty days from the date of the delivery of the material or thirty days after the claim accrued or became payable.

Under 5472a, the claim was required to be filed before the money was paid over to the contractor.

At the regular session of the Forty-First Legislature, article 5160 was amended requiring claims to be itemized and sworn to as required by statutes as to mechanic’s lien claims and filed with the county clerk of the county in which the work was being prosecuted within ninety days from the date of the delivery of the material or the performance of the work.

After thus amending the article, the above-quoted provision appears.

At the second called session of the same Legislature chapter 78 was enacted (Vernon’s Ann. Civ. St. art. 5472b — 1) by which the contractor was authorized to give a bond in double the amount of any claims which might be filed under article 5472a, and thereby secure the release of the lien fixed by said article upon any moneys, bonds, or warrants due him.

All of the statutes, being enacted for the purpose of protecting the furnishers of labor and material on public works, are in pari materia, and must be considered together in construing any one of them.

In doing so we find that all of the statutes which have,been passed by the Legislature, with the exception of the provision under consideration, required some diligence on the part of those having claims in order to avail themselves of the protection afforded by those statutes. In other words, the policy of the law;s enacted on the subject placed reciprocal duties upon all the parties affected thereby, and, while the provision here under consideration clearly placed upon the state, counties, school districts, and municipalities the duty of requiring satisfactory evidence and affidavits from the contractor showing that all just claims for labor and material had been paid before paying over to him the moneys due him after the acceptance of the project, yet we cannot agree that the Legislature thereby intended that the state, or a county, school district, or municipality who failed to comply with that provision, would be liable to a furnisher of labor or material who had failed to use any diligence toward collecting his claim. To so hold would, as a practical matter, render unnecessary the filing of claims as provided for in article 5472a, for satisfactory evidence, as called for in the provision, could mean no less than statements from those who had furnished labor and material that they had received pay therefor.

As evidence of the fact that the Legislature did not have the intention of limiting the foijpe of article 5472a, we find that at the second called session, and after the above provision had been passed, the act providing for .the release of the lien created by said article was enacted.

While we recognize the force of the argument advanced by appellant as to the construction of the provision, yet we have con-’ eluded that the trial court did not err in concluding that the independent school district was not liable to' appellant under the facts-here revealed.

The judgment of the trial court is accordingly affirmed.


author: KEITH, Justice.

text:
    DELTA BRANDS, INC., Appellant, v. BORDEN METAL PRODUCTS COMPANY, Appellee.
    No. 8064.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 23, 1978.
    Rehearing Denied March 16, 1978.
    Michael Cooper, Dallas, for appellant.
    W. C. McClain, Conroe, Ben H. Sheppard, Jr., Houston, for appellee.
   KEITH, Justice.

Defendant below appeals from an adverse judgment entered after the jury had returned its findings of fact favorable to plaintiff. Borden purchased a large hydraulically-driven steel slitting line machine from Delta for use in slitting steel at its manufacturing plant near Conroe. Shortly after installation of the machine, it began to malfunction and repeated efforts by Delta to repair and restore the machine to normal operation failed.

During one two-month period (May-July, 1974, the machine was inoperative for most of the time. Borden followed Delta’s instructions in an effort to restore the machine to an operating condition but all such efforts resulted in failure. Delta’s own efforts to repair the equipment were likewise unsuccessful. Borden then obtained outside engineers in an effort to get the machine to work and some temporary improvement in the operation was noticed. During the time the machine was idle and incapable of being used, Borden had its steel slitting work done in outside plants so as to prevent complete shutdown of its manufacturing operation. When it filed suit for its damages, Borden claimed that the machine was unfit as a result of enumerated defects and sought a recovery on a breach of warranty theory.

PART I

Borden’s judgment, based upon the jury findings, is assailed by five points of error, all complaining of errors in the charge. We affirm for the reasons to be stated, but we must first dispose of a threshold procedural problem.

At the time this case was tried, our jurisdiction invoked, and Delta’s brief was filed, the procedure governing the appeal was that set out in St. Louis Southwestern Railway Co. v. Gregory, 387 S.W.2d 27, 29 (Tex.1965), from which the quotation in the margin is taken.

An examination of the record reveals that one or more of the points of error do not conform to the requirement of the rules in effect at the time of the trial. If we were to follow those rules which were still in effect at the time of the filing of Delta’s brief, one or more of such points would be beyond review under the rules enunciated in Gregory, supra.

By an order entered on July 11, 1977, effective January 1, 1978, the Supreme Court made several important changes in the rules theretofore governing appellate procedure. Tex. R. Civ. P. 320 was amended by eliminating this language in the final sentence: “ . . . and shall specify each ground on which it is founded, and no ground not specified shall be considered.” Rule 324, to use the comment found in the Supreme Court’s order, was amended and now “[eliminates requirement for a motion for new trial in jury cases in most (though not all) instances.” Finally, as applied to this discussion, Rule 374 was repealed.

The threshold question is obvious: Is Delta’s appeal to be considered and treated under the procedural rules in effect at the time of the trial or at the time of the consideration of the appeal? We are of the opinion that Delta’s brief should be reviewed under the liberalized rules now in effect. Stieler v. Stieler, 537 S.W.2d 954, 957 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.), and cases therein cited. See also Commercial Insurance Company of Newark, N. J. v. Lane, 480 S.W.2d 781, 783 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.).

We are unwilling to extend the effective life of the rigid rules of appellate procedure in effect before January 1, 1978, for even one more case. Those old rules which have aborted countless appeals were finally modernized by our Supreme Court and we will unhesitatingly apply the new rules to any case within their reach. We will consider all of Delta’s points in its brief.

We have carefully examined each of the points of error contained in Delta’s brief but find no merit in any of the points. We will treat each of such points in Part II of this opinion; but since the matters therein discussed would not add anything to the jurisprudence of this State, even though it is an integral part of this opinion, we order it not published pursuant to Rule 452.

AFFIRMED.

      . “Plaintiffs were required by Rule 324 to file a motion for new trial as a prerequisite to their right of appeal. Under the provisions of Rule 320 they were required to ‘specify each ground’ on which their motion was founded, under penalty that ‘no ground not specified shall be considered.’ Moreover, Rule 374 provides: ‘A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived.’ ”

      . All references to rules are to Texas Rules of Civil Procedure.

      . Stieler was cited with approval in Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex.1977).


author: GADENA, Chief Justice.

text:
    TRANS-WORLD BONDED WAREHOUSES AND STORAGE, INC., Appellant, v. Vicente V. GARZA, Jr., Appellee.
    No. 15867.
    Court of Civil Appeals of Texas, San Antonio.
    April 28, 1978.
    Rehearing Denied July 31, 1978.

      J. G. Hornberger, J. G. Hornberger, Jr., Laredo, for appellant.
    C. M. Zaffirini, Hall & Zaffirini, Laredo, for appellee.
   GADENA, Chief Justice.

Plaintiff, Trans-World Bonded Warehouses and Storage, Inc., appeals from a judgment denying its prayer that it be awarded title to and possession of certain land, and, instead, granting its alternative prayer for specific performance of an oral contract under the terms of which, defendant, Vicente V. Garza, Jr., agreed to convey the land in question to plaintiff.

The first three paragraphs of plaintiff's petition are in the form of a statutory action in trespass to try title. In the fourth paragraph, plaintiff “specifically” alleged the existence of the oral contract of sale, payment of a portion of the consideration by plaintiff and the taking of possession and making of valuable improvements by plaintiff under the oral contract with the knowledge and consent of defendant. In this paragraph, plaintiff alleged that it had offered to pay the balance of the purchase price upon execution of a warranty deed by defendant, but that defendant refused to execute such deed.

The prayer was for “judgment for the title and possession of the * * * premises, for specific performance of the contract of sale, for costs of suit” and for general relief.

In addition to a plea of not guilty and a general denial, defendant invoked the statute of frauds and the two-year statute of limitations. Defendant also alleged that he was entitled to rescission of the contract because of breach of the contract by plaintiff. Finally, defendant’s answer contained a counterclaim in trespass to try title.

The prayer, insofar as it sought affirmative relief, was for judgment for title to and possession of the land and for rescission of the contract.

The jury made the following findings:

1. Plaintiff and defendant entered into a contract calling for the sale of the land by defendant to plaintiff.

2. Plaintiff paid a portion of the purchase price to defendant.

3. Plaintiff, relying on such contract, entered into possession of the land and made valuable and permanent improvements with the knowledge and consent of defendant.

4. Defendant agreed that plaintiff would have to make no further payments under the contract until a mortgage on the land, held by McAllen State Bank, was paid.

5. Defendant accepted late payments from plaintiff without objection.

6. Plaintiff did not make the payments called for by the contract, nor did it pay the taxes on the land as it was required to do by the contract.

7. Defendant is entitled to no compensation for the period of time during which he did not have the use of the premises.

After the verdict was received, plaintiff moved for judgment awarding it title to and possession of the land in question. Defendant moved for judgment n. o. v.

The judgment of the trial court, after reciting that defendant’s motion for judgment n. o. v. was overruled and that plaintiff’s motion for judgment was granted, orders:

1. Plaintiff shall, within 10 days after entry of judgment, deposit with the clerk of the court $76,179.04, plus interest from date of judgment until date of deposit at the rate of 7½% per annum. This was described as the full amount of the purchase price to be paid to defendant under the contract of sale.

2. Defendant shall, within 10 clays of the date of deposit of $76,179.04 into the registry of the court by plaintiff, execute and deliver to the clerk of the court a general warranty deed conveying good and merchantable title to the land in question to plaintiff.

3. Upon deposit of the money by plaintiff and the delivery of the deed by defendant, the clerk shall simultaneously deliver the deed to plaintiff and the money to defendant.

4. Upon failure of plaintiff to deposit the amount specified within 10 days after entry of judgment, “then the plaintiff and its grantees and assigns take nothing and they shall deliver possession of the property” to defendant. Should plaintiff fail to deliver possession of the property to defendant upon plaintiff’s failure to make the required deposit within 10 days, the sheriff shall place defendant in possession.

Ten days after the entry of judgment, plaintiff filed its “motion to set aside judgment.” The only prayer contained in this motion was that the judgment be set aside and that the court enter judgment as submitted by plaintiff in its motion for judgment; that is, judgment awarding plaintiff title to and possession of the property.

This motion was overruled and the court subsequently entered an order which recited that plaintiff had failed to make the required deposit and directing the sheriff to deliver possession of the property to defendant.

It is undisputed that in 1971 plaintiff and defendant orally agreed that defendant would convey the land in question to plaintiff for a price of $68,000.00, payable in monthly instalments of $1,000.00 each, with interest at the rate of 7½% per year. In addition, plaintiff was to pay the taxes and keep the property insured. Plaintiff took possession and made improvements which, according to the evidence produced by plaintiff, had a value of between $10,000.00 and $15,000.00. Plaintiff made payments totaling between $17,000.00 and $20,000.00, according to defendant. According to plaintiff, the payments totaled “approximately $20,000.00.” Plaintiff’s testimony was to the effect that some of the payments were late, but that defendant received them without objection. It is undisputed that plaintiff did not pay the taxes on the property.

While we agree that the evidence and the verdict establish the existence of facts sufficient to overcome defendant’s reliance on the statute of frauds, this does not mean that plaintiff is entitled to judgment for the title to and possession of the land.

It is true that the owner of equitable title to land has sufficient title to support an action in trespass to try title. Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471 (1945). But, in Texas, the purchaser under a contract for the conveyance of land does not acquire the equitable title to the land until he has fully performed his obligations under the contract. Hemming v. Zimmerschitte, 4 Tex. 159 (1849). Until such performance, the purchaser has only an equitable right which is insufficient to support an action in trespass to try title. Johnson v. Wood, 138 Tex. 106, 157 S.W.2d 146 (1941); Atkins v. Carson, 467 S.W.2d 495, 501 (Tex.Civ.App.—San Antonio 1971, writ ref’d n. r. e.). Since plaintiff had not paid the full purchase price nor performed his obligation to pay the taxes, the court did not err in denying plaintiff relief in its suit in trespass to try title.

Both parties agree that the trial court erred in decreeing specific performance of the contract. Plaintiff, in addition to contending that it was entitled to judgment for title and possession, complains that the judgment, although it recites that defendant’s motion for judgment n. o. v. was overruled and that plaintiff’s motion for judgment on the verdict was granted, complains that the judgment is, in effect, a judgment in favor of defendant and that defendant did not ask for such relief. Further, plaintiff insists that in seeking specific performance it did not ask for a decree which required it to pay the entire purchase price at once, when under the agreement of the parties it was under no obligation to make any payments until defendant had satisfied the mortgage on the property.

Plaintiff further insists that the case was submitted to the jury solely with reference to its action in trespass to try title, and that it did not rely on nor present to the jury its alternative and “secondary” theory of specific performance. In addition, plaintiff says that if, under the verdict, it was entitled to specific performance, then the decree should conform to the findings of the jury and to the terms of the contract.

Defendant argues that plaintiff is not entitled to specific performance because it failed to establish the existence of any contract and, if the existence of a contract was established, the statute of frauds prevented its enforcement. Alternatively, defendant contends that, assuming that plaintiff was entitled to specific performance, the decree entered by the trial court, requiring payment of more than $76,000.00 within 10 days after judgment, was correct.

If plaintiff is correct in its contention that the theory of recovery under the doctrine of specific performance was not submitted to the jury and that, in order for specific performance to be granted it was necessary to determine several questions of fact, then it follows that plaintiff waived its cause of action based on specific performance, and the trial court erred in giving such relief. The contentions presented by plaintiff here, concerning the proper form of a decree of specific performance, were not presented to the trial court. This is not surprising, in view of the fact that plaintiff argued only that it was entitled to judgment under its allegations concerning trespass to try title.

However, in view of the jury findings which, in effect, establish that plaintiff has not breached its obligations under the contract, it would be manifestly unfair to reverse the judgment of the trial court and render judgment here that plaintiff take nothing. We believe that this is a proper case for a remand for a new trial in the interest of justice, since we have concluded that the judgment rendered by the trial court was erroneous.

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


author: KLINGEMAN, Justice.

text:
    Margaret L. Woodward KAMOOS, Appellant, v. Hazel WOODWARD, Appellee.
    No. 15998.
    Court of Civil Appeals of Texas, San Antonio.
    May 10, 1978.
    Rehearing Denied June 21, 1978.
    Charles G. Childress, Daniel D. Densford, San Antonio, for appellant.
    Robert P. Sims, Sims & Sims, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a suit to set aside probate of a will as a muniment of title. Appellee, Hazel Woodward, filed an original action for probate of the will involved as a muniment of title in Cause No. 144,218, on October 13, 1976, in the County Court of Bexar County, Texas. Citation was by posting, and the order admitting the will to probate as a muniment of title was signed by the trial court on October 26, 1976. No contest was filed to the application to probate such will. Approximately eight months thereafter, ap-pellee, Margaret L. Woodward Kamoos, filed suit on June 8, 1977, in Cause No. 145,890, in the same court, seeking to set aside the order probating said will on the grounds that the applicant was in default in failing to present the will for probate within four years after the testator’s death. After a hearing before the court, judgment was entered by the trial court denying the petition to set aside the probate of such will.

By one point of error, appellant asserts that the trial court erred in failing to set aside the will of Newt Paul Woodward because the evidence conclusively establishes that the party applying for probate was in default for failing to present the will for probate within four years after the death of the testator.

Appellee asserts that the determination of default is a fact question, while appellant argues that such determination is a question of law; and that the trial court erred as a matter of law: (a) in probating the will of Newt Paul Woodward, and (b) in refusing to set aside the probate of such will. We disagree with appellant’s contention and affirm the judgment of the trial court.

The undisputed facts show:

(1) Newt Paul Woodward died on December 14, 1971;
(2) Hazel Woodward, the decedent’s wife, had his will in her possession at his death;
(3) Such will was offered for probate more than four years after the death of the testator and was admitted to probate as a muniment of title;
(4) Hazel Woodward is the sole beneficiary under the will;
(5) According to the inventory filed in such case, the decedent had a gross estate of slightly over $4,000.00, consisting entirely of community property of decedent and Hazel Woodward, principally a mobile home and two cars;
(6) Although not known to appellee at such time, the decedent was also an heir to an oil and gas royalty interest;
(7) Margaret L. Woodward Kamoos was a child born to decedent by a previous marriage; and
(8) Hazel Woodward probated the will within a few weeks after she was contacted by an oil company who told her of such royalty interest.

Tex.Prob.Code Ann. § 73(a) (Supp.1978) provides:

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

Although it has been somewhat common practice in Texas to admit wills to probate as a muniment of title after a period of four years from decedent’s death, the court decisions show some disarray. Basically, these cases have fallen into several categories:

(a) Cases involving lost or undiscovered wills or wills concealed or withheld from the proponent. Texas courts have been somewhat liberal in allowing these wills to be probated.
(b) Cases where the will is offered for probate to establish a link in the chain of title to property. In a number of Texas cases, it has been held that a will may be admitted to probate notwithstanding the passage of the statutory time limit where it is offered by a grantee of property seeking not to inherit but to perfect or establish title to that property.
(c)Cases involving an agreement by the heirs not to probate the will. Texas courts have generally held that this alone is not a sufficient excuse.

See Annot. 17 A.L.R.3d 1361, 1364, 1366 (1968).

Appellant relies heavily on the case of Faris v. Faris, 138 S.W.2d 830 (Tex.Civ.App.—Dallas 1940, writ ref’d). Faris was an appeal from the denial of probate as a muniment of title. The father left a will leaving his entire estate to his wife. The wife left the will in her lock box where it remained until after her death. The wife survived the testator nearly 20 years. After the wife’s death, the proponent of the will withdrew the will from the lock box and offered it for probate. The will was probated by the probate court, but, thereafter, a contest was filed. The contest was upheld by the district court and the will of the father, George Faris, was denied probate as a muniment of title.

The court held that the wife, Sophia Far-is, abandoned any rights she might have had under the will of her husband by not offering it for probate while it was in her possession for a period of about 20 years; and that as a matter of law it was against public policy to allow a will to be probated some 19 years after the death of the testator when the person having a right to probate had it in her possession during all such period of time. The proponent, a son, asserted that he had not defaulted because he offered the will for probate immediately after his mother’s death and that prior to such time he had no interest under the will. The appellate court held that the record supported the finding that the mother had abandoned all right under the will and was conclusively in default for not probating her husband’s will within the period involved; that, therefore, she had no interest in the property, and that proponent could only cake what she had.

Brown v. Byrd, 512 S.W.2d 758 (Tex.Civ. App.—Tyler 1974, no writ), is also relied upon heavily by appellant. This is a companion ease to Brown v. Byrd, 512 S.W.2d 753 (Tex.Civ.App.—Tyler 1974, no writ), both of which cases were handed down on the same day by the Tyler Court of Civil Appeals, and involved wills of Elizabeth Prances Gregg and her husband, E. L. Gregg.

The case of Brown v. Byrd, 512 S.W.2d 758, involves the will of the husband, E. L. Gregg, and was an appeal from an order admitting the will to probate. The appellate court in reversing and rendering the judgment of the trial court stated that the record supported the trial court’s finding that the appellee (proponent) had known of the will and its contents and had possession of such will as early as 1953. The court held that appellee’s contentions, that she learned only in 1970 what probate meant and that she relied on her uncle as to the ownership and distribution of the property mentioned in the will, were insufficient. Both of these cases involved an agreement by the devisees not to probate the original wills made in 1944.

The court in Brown v. Byrd, 512 S.W.2d 753, reached the same result as in the other Brown v. Byrd case, finding the excuse insufficient. The court in this case placed considerable emphasis on the long lapse of time after knowledge of the contents of the will and stated that where the proponent was informed of the will’s existence within 17 days after the expiration of the 4-year period after testator’s death, the failure to apply for probate of the will for 29 years thereafter was not excused by appellant’s reliance on a family agreement regarding disposition of testator’s estate; and that ignorance of the law did not excuse the long delay.

The court, in discussing Section 73(a) of the Texas Probate Code, stated that the term “default” within the purview of such statute means a failure due to absence of reasonable diligence on the part of the party offering the instrument.

We are not inclined to hold, as requested by appellant, that the question of default is a question of law rather than a question of fact.

The question of whether a proponent of a will is in default in not presenting the will for probate within four years of the testator’s death is ordinarily a fact question for the trial court. Winkler v. Craven, 250 S.W.2d 300 (Tex.Civ.App.—Waco 1952, writ ref’d); Owen v. Felty, 227 S.W.2d 379 (Tex.Civ.App.—Eastland 1950, writ ref’d); Hodge v. Taylor, 87 S.W.2d 533 (Tex.Civ.App.—Fort Worth 1935, writ dism’d); Armstrong v. Carter, 291 S.W. 626 (Tex.Civ.App.—Waco 1927, no writ); Eubanks v. Jackson, 280 S.W. 243 (Tex.Civ.App.—Waco 1925, writ ref’d).

In Armstrong v. Carter, supra, the court said:

Under Article 3326 of the Revised Statutes of 1925, it is provided that a will may be probated after four years, if it is shown that the party applying for such probate was not in default in offering same for probate before the four years had elapsed. Clearly, the intention of the Legislature was to lodge with the trial court or jury the power to determine as a question of fact, where there is any evidence raising the issue, whether there was a default. The tendency of our courts has been from its earliest decisions to permit wills to be filed after the four-year period, where there is any evidence of a probative force which would excuse the failure to offer the will sooner. Long v. Todd (Tex.Civ.App.) 252 S.W. 327; Michaelis v. Nance (Tex.Civ.App.) 184 S.W. 785 (writ refused); House v. House (Tex.Civ.App.) 222 S.W. 322; Ochoa v. Miller, 59 Tex. 460; Ryan v. T. & P. Ry. Co., 64 Tex. 239.

The inventory and appraisement filed in the estate shows a gross estate of slightly over $4,000, consisting entirely of community property, principally a mobile home and two cars. Although not known to appellee at such time, the decedent was also heir to a royalty interest. Appellant testified that she was married to Mr. Woodward in 1948; that her husband had not worked steadily for approximately nine years before his death; that she had been employed as a companion nurse for approximately six years prior to her husband’s death, but that the lady she had worked for had died about two weeks before her husband’s death; that she had not worked steadily thereafter; that although she drew some social security, her financial condition was poor; that she had no bank account and that under the circumstances, due to the nature of the property of which she was aware and her limited resources, she didn’t think it necessary to probate the will; that she first became aware of the royalty interest when she was called by an oil company advising her to probate the will; that, thereafter, she immediately went to an attorney and the will was offered for probate. There was a lapse of approximately five years after her husband’s death before the will was offered for probate.

Under the record and circumstances above outlined, there is sufficient evidence to support the trial court’s holding that appellee was" not in default for failing to present the will for probate within four years after the death of her husband. The trial court’s judgment admitting the will to probate as a muniment of title is not in error.

The judgment is affirmed.