author: COLEMAN, Chief Justice.

text:
    The HANOVER INSURANCE COMPANY et al., Appellants, v. J. T. RICHARDSON et al., Appellees.
    No. 16527.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 23, 1975.
    Rehearing Denied Nov. 20, 1975.

      Johnson, Guthrie, Billings & Nash, Robert Lee Guthrie, Dallas, for appellants.
    Brown & Haden, Charles M. Haden, Houston, for appellees.
   COLEMAN, Chief Justice.

This is an appeal from an order overruling pleas of privilege. No findings of fact or conclusions of law were requested or filed.

Appellants, The Hanover Insurance Company and the Peninsular Fire Insurance Company, reside in Dallas, Texas. Hanover and Peninsular were co-insurers to the extent of $120,000.00 each of a building located in Porter Springs, Houston County, Texas. The building, formerly a school house, was owned by appellee, J. T. Richardson, a resident of Houston, Harris County, Texas, at the time of the fire. Richardson arranged insurance coverage for the building through H. L. Shaw and Associates, a Houston agent at that time for both Hanover and Peninsular. The building was destroyed by fire on February 11, 1974. Richardson brought this action in Harris County to collect the insurance which he alleges is due to him under the insurance policies. Hanover and Peninsular filed their pleas of privilege to have the case transferred to Dallas County, Texas. Richardson filed controverting affidavits in which he relied on Subdivision 23, Article 1995, V.A.C.S. Subsequently he presented a “Supplemental Controverting Plea” by which he alleged facts bringing the case within Subdivision 27, Article 1995, Vernon’s Annotated Civil Statutes, as a basis for retaining venue in Harris County. Subdivisions 4 and 29a of said Article 1995 were set up in the controverting affidavits, but appellee does not rely on these subdivisions on this appeal.

Appellee, J. T. Richardson, asserts that his pleading and the evidence introduced thereunder are sufficient to support the trial court’s judgment under both exceptions 23 and 27 of Article 1995, supra. The insurance companies assert that venue is not sustainable in Harris County, Texas, because the proof is insufficient to establish a cause of action against either of the defendant insurance companies and because there is no proof to support findings that the insurance companies maintained an agent in Harris County at the time the suit was filed. The appellants also assert that the judgment cannot be sustained under exception 27 because there is no sufficient pleading alleging that either Hanover or Peninsular are foreign corporations.

The transcript contains an instrument under the style and number of this case entitled “Supplemental Controverting Plea.” It shows no clerk’s file mark but there is a notation “Filed among the papers.” There is another instrument found in the transcript bearing the notation “Filed: March 17, 1975,” which is entitled “Supplemental Pleas of Privilege.” The first paragraph of this instrument reads:

“Now comes the Defendants, Hanover Insurance Company and Peninsular Fire Insurance Company, and in reply to Plaintiff’s supplemental controverting plea, files this their supplemental pleas of privilege and represent to the Court as follows: . . . ”

The judgment indicates that the pleas of privilege were heard on March 17, 1975. There is nothing in the record to indicate that either of the defendants objected in any way to the consideration of the supplemental controverting affidavit. The record establishes that the applicability of Section 27 to the facts of this case was before the trial court. Evidence in support of venue under this provision of the statute was admitted during the trial without objection.

Appellants contend that the supplemental controverting affidavit was never filed and that leave of court to file same has not been shown. The record does not show whether leave to file was requested or granted, but since this pleading was considered by the court, leave is presumed. Lucas v. Hayter Realty Co., 376 S.W.2d 790 (Tex.Civ.App. — San Antonio, 1964, error dism’d); Villarreal v. State of Texas, 495 S.W.2d 28 (Tex.Civ.App. — Corpus Christi, 1973, no writ hist.).

The instrument was considered by the trial court and was found among the papers of the cause. The fact or not of a file mark is not conclusive of the question of a filing but only a circumstance in the evidence.

“There may be a file mark and no filing; there may be no file mark and a filing.” Consolidated Furniture Co. v. Kelly, 366 S.W.2d 922 (Tex.1963)

The record does not establish when or in what manner the supplemental controverting affidavit was presented to the court. In Mergele v. Houston, 436 S.W.2d 951 (Tex.Civ.App. — San Antonio, 1968, writ ref’d n. r. e.), the court said:

“Rule 66, T.R.C.P., provides in part that the court may allow the pleadings to be amended during the trial and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his defense upon the merits. Although the application of these rules is within the sound discretion of the trial judge, nevertheless, the interpretation followed by the appellate courts is that such discretion is to be exercised liberally in favor of justice. . . . ”

The defendants also contend that the affidavit attached to the supplemental controverting plea was defective.

A controverting plea can be amended. The failure to call the court’s attention to defects in such a plea before the court renders its order on the plea of privilege, even defects of substance, will waive the error. Cactus Drilling Corp. v. Hagar, 487 S.W.2d 758 (Tex.Civ.App. — El Paso, 1972, no writ hist.); Cabrera v. Texas Consumer Finance Corp., 494 S.W.2d 581 (Tex.Civ.App. — Ft. Worth, 1973, no writ hist.).

The trial court did not err in considering the supplemental controverting affidavit.

Appellants’ contention that there is no evidence to support a finding that the insurance companies had an agent in Harris County, Texas at the time the suit was instituted is also without merit. There is evidence that at the time the policies were issued, December 27, 1973, H. L. Shaw, a resident of Harris County, Texas, was an agent for both companies. The proof of loss statements dated March 21, 1974 to both Hanover and Peninsular indicate that Shaw was agent at that time. The original petition was filed on May 3, 1974 and the venue hearing was held on March 17, 1975. As of January 9, 1975 the evidence is that Shaw was no longer the agent of Hanover. There is no testimony as to when the agency was terminated. Peninsular introduced testimony as follows:

“We sent him (apparently referring to Mr. Shaw) a telegram at 4:20 p. m. on February 15, suspending his binding authority immediately. I believe that is the date that we learned of the loss. We followed that by a letter dated February 19, advising him that the contract cancellation conditions would be exercised.”

There is no testimony as to the specific conditions for contract cancellation. There is no testimony establishing that the contract in fact was cancelled or the date on which the cancellation became effective. In Vol. 1, McCormick & Ray, Texas Law of Evidence, 2d ed., ch. 4, section 81, we find:

“It is often stated as a settled rule of evidence that where a person, object, relation or state of things is proved to have existed at a particular time, its continuance is presumed until the contrary is shown. This so-called presumption has been applied to a great variety of subjects including: . . . continuance of partnership . . . and many others. As used in this connection the word presumption is obviously a permissive and not a mandatory one and means merely that if such condition has been shown to exist at a given time an inference may be drawn that it continued to exist . . ”

There is evidence of probative value that both Hanover and Peninsular had an agent in Harris County, Texas at the time this suit was filed and the hearing was held. Section 27 provides in part that venue can be maintained against a foreign corporation in any county where such company may have an agent or representative. The evidence establishes that both insurance companies were foreign corporations. The appellants have failed to show that the trial court’s judgment was improper in that it could not be sustained by reason of exception 27 to Article 1995, supra.

In reaching this conclusion we have followed the rule expressed in Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1957), as follows:

“If, discarding all adverse evidence, and giving credit to all evidence that is favorable to the successful party, and indulging every reasonable conclusion that is favorable to him, a trier of the facts might have found in his favor, then it is to be concluded that there is evidence to support the finding.”

Venue may also be established under Subdivision 23 of Article 1995, supra. It is undisputed that the policies sued on were issued in Harris County, Texas. A cause of action arises in part in the county in which the contract was made. Brass Brakes, Inc. v. Brake-O International, Inc., 473 S.W.2d 679 (Tex.Civ.App. — Waco, 1971, no writ hist.). However it is necessary that plaintiff show all elements of a cause of action by a preponderance of the evidence. McDonald, Texas Civil Practice, Sec. 4.30.2-(I). The evidence establishes that Shaw had authority to bind both Hanover and Peninsular; Hanover and Peninsular issued the policies covering the premises in question; the building insured was destroyed by fire during the term of the policies; appel-lee paid the required premium for the policies; appellee filed the necessary proof of loss forms; and Hanover and Peninsular refused to pay the loss established by the proof of loss form.

Appellants contend that Richardson failed to prove a meritorious cause of action in that the policies are null and void for the reason that Richardson had no insurable interest in the property at the time the policies were issued; the policies were can-celled although after the loss occurred; the policies were procured by fraud; the policies were illegal, and there was a failure of consideration for the policies. At a trial on the merits, proof of these matters would require affirmative pleading. Vernon’s Annotated Rules of Civil Procedure, Rule 94. A plaintiff in a venue proceeding is not required to defeat affirmative defenses. Ocean Systems, Inc. v. Educational & Research Devices, Inc., 493 S.W.2d 641 (Tex.Civ.App. — Amarillo 1973, writ dism’d). In the case above cited the court stated:

“ . . .At the venue hearing, the answer of Ocean Systems, Inc. was not before the court for consideration of the verified denial of the justness of the account sued on; moreover, under the due order of pleading, if the answer were submitted to place the correctness of the account in issue before determination of the plea of venue, the jurisdictional power of the court would be invoked over the issue with the consequent waiver of the plea of privilege. Moore v. James, 242 S.W.2d 958 (Tex.Civ.App. — San Antonio, 1951, mandamus overruled), and cited cases. The contention that the evidence shows a material breach of the contract is a defensive plea that reaches the merits of the action and is not a subject of inquiry on the venue hearing, Harvey v. Bain, 140 Tex. 375, 168 S.W.2d 234 (1943), where the plaintiff is not required to defeat affirmative defenses. 1 McDonald, Texas Civil Practice, § 4.30.2.”

In Beckham Development Co. v. Bruce Clark & Associates, 492 S.W.2d 287 (Tex.Civ.App. — Dallas, 1973, no writ, hist.), the court recognized the rule that an inquiry into matters constituting an affirmative defense is not appropriate in a venue hearing. See also Harvey v. Bain, 140 Tex. 375, 168 S.W.2d 234 (1943).

Appellant also asserts by point of error the proposition that Subdivision 27 of Article 1995 is unconstitutional in that it permits venue to be maintained against foreign corporations without proof of a cause of action while Subdivision 23 requires proof of a cause of action to maintain venue against a domestic corporation. Such a contention has been explicitly rejected by the Texas Supreme Court in Commercial Insurance Co. of Newark, New Jersey v. Adams, 369 S.W.2d 927 (Tex.1963).

The judgment is affirmed.


source: Caselaw Access Project

author: GUITTARD, Justice.

license: Public Domain

text:
    COKE LUMBER & MANUFACTURING CO., Appellant, v. FIRST NATIONAL BANK IN DALLAS, Appellee.
    No. 18690.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 23, 1975.
    Rehearing Denied Nov. 20, 1975.

      Frank Cusack, DeSoto, for appellant.
    Robert M. Roller, Coke & Coke, Dallas, for appellee.
   GUITTARD, Justice.

This case presents the question of whether an interim lender is liable to a material-man for the amount of a claim for materials furnished to a builder on the ground that the lender, after receiving actual notice of the materialman's claim and lien, advanced funds to the builder in excess of the amount of the claim. We hold that the lender has no such liability. We also deny the materialman’s claim for priority of its lien as against the lender’s deed of trust securing subsequent advances, and we sustain the power of the trustee named in the deed of trust to sell the land on default of payment of indebtedness other than that specifically described in the deed of trust.

The suit was brought by Coke Lumber & Manufacturing Company against Goode Construction Company, Inc. and First National Bank in Dallas for an unpaid balance of $4,409.07 owed by the construction company for materials furnished for construction of seven houses. The trial court, sitting without a jury, rendered judgment for the plaintiff lumber company against the construction company, but denied recovery against the bank, and plaintiff appeals.

Each of the lots to which plaintiff delivered construction materials was covered by a deed of trust securing a note to the bank. The first note, dated May 8, 1973, was in the principal sum of $106,168 and was secured by a deed of trust on five separate lots. The second, dated June 7, 1973, was in the principal sum of $51,000 and was secured by a deed of trust on two other lots. After furnishing the materials in question, plaintiff lumber company filed an affidavit for a lien to secure plaintiff’s claim in the amount of $5,814.94 for materials furnished for construction of houses on all seven lots. Plaintiff does not assert that any of the material was delivered before filing of the bank’s deed of trust on the lot to which the material was delivered.

On August 8,1973, the same day that the affidavit for the materialman’s lien was filed, a representative of plaintiff advised one of the officers of the bank in a telephone conversation that the affidavit had been filed and requested that the bank make further advancements of loan proceeds by checks payable jointly to the construction company and plaintiff until plaintiff’s claim should be satisfied. The bank declined to do so. The deeds of trust contained language authorizing the bank to pay off inferior liens and provided that any amount so paid would be secured by the same property, but they did not require the bank to make such payments. At the time of the telephone conversation the bank had already advanced to the construction company a total of $116,779, of which $81,019 was advanced on the first note and $35,760 was advanced on the second note. After the conversation, the bank advanced additional funds aggregating $15,699.36, of which $4,335 was advanced on the first note and $11,364.36 was advanced on the second note. Later the bank foreclosed on all the property and bought it at the trustee’s sale. The bank denied any liability to plaintiff, and this suit followed.

1. Liability for Advances after Notice of Lien

Plaintiff contends that an interim lender advancing funds to a builder for a construction project is in the position of a trustee and has a duty to suppliers of labor and materials to see that their claims are satisfied before advancing any further funds to the builder, particularly if it has notice of claims past due and unpaid. This contention is urged as a question of first impression since, admittedly, no authority can be found to support it.

We find no basis for imposing on the lender the duty of a trustee. Plaintiff had both actual and constructive notice of the bank’s superior lien when it supplied the materials in question, yet it made no inquiry of the bank concerning disbursement of the proceeds of the loan until the builder failed to pay. If plaintiff was not satisfied to rely on the builder’s credit, it could have demanded cash on delivery or insisted on some other assurance of payment. It was not justified in relying on the bank to protect its interest. Any such protective action would have imposed on the bank the burden of evaluating the possibly disputed claims of materialmen and subcontractors although the bank had promised only to advance money to the builder. Consequently, we hold that the bank has no liability to plaintiff for advancing funds to the builder after notice of plaintiff’s claim.

2. Priority of Liens

Plaintiff’s contention rests on the further claim that its materialman’s lien was prior to the bank’s deed of trust with respect to advances made by the bank with actual notice of plaintiff’s materialman’s lien. Such priority is asserted notwithstanding the provision in the bank’s deed of trust that it secures “all loans and advances which Bank may hereafter make to the Grantor.” The only case plaintiff cites as supporting this contention, even by way of dictum, is Regold Manufacturing Co. v. Maccabees, 348 S.W.2d 864 (Tex.Civ.App.— Fort Worth 1961, writ ref’d n. r. e.). That case involved priority as between a materi-alman’s lien and a secured interim loan for future advances, but the court held only that a lender who advances money in reliance on an earlier deed of trust without notice of the materialman’s claim is entitled to priority. Plaintiff argues that by implication a lender who advances money with actual notice of a materialman’s claim is not entitled to priority.

We cannot accept this implication as sound. In our view, actual notice to the lender of the materialman’s claim can give the materialman no greater rights than the constructive notice effected by filing his affidavit. Constructive notice resulting from a statutory filing is as effectual and binding as actual notice. Hexter v. Pratt, 10 S.W.2d 692, 693 (Tex.Comm’n App.1928, jdgmt. adopted); University State Bank v. Gifford-Hill Concrete Corp., 431 S.W.2d 561, 571 (Tex.Civ.App. — Fort Worth 1968, writ ref’d n. r. e.). Consequently, the question presented is whether a deed of trust to secure future advances, if filed before a materialman begins delivery of materials, is prior to the materialman’s lien with respect to advances made with notice, actual or constructive, of the materialman’s lien. We hold that in this situation the deed of trust is prior. Freiberg v. Magale, 70 Tex. 116, 7 S.W. 684, 685 (1888); Crabb v. William Cameron & Co., 63 S.W.2d 367, 368 (Tex. Comm’n App.1933, jdgmt. adopted); Poole v. Cage, 214 S.W. 500, 502 (Tex.Civ.App.— Galveston 1919, writ ref’d); Willis v. Sanger, 15 Tex.Civ.App. 655, 40 S.W. 229, 232 (San Antonio 1897, writ ref’d).

In the present case, even in the absence of an express provision concerning future advances, the result would be the same because the advances made after notice of the materialman’s lien, when added to the advances previously made, still did not exceed the principal amounts of the notes described in the deeds of trust. Thus plaintiff had express notice that each deed of trust was given to secure the full amount of the builder’s indebtedness to the bank, including subsequent advances. Foxworth-Galbraith Lumber Co. v. Southwestern Con-trading Corp., 165 S.W.2d 221, 224 (Tex.Civ.App. — Fort Worth 1942, writ ref’d w. o. m.).

3. Power of Sale on Default of Other Indebtedness

Plaintiff also attacks the trustee’s deed under the deed of trust securing the second of the two notes on the ground that this note was not yet due, and, therefore, was not in default at the time of the trustee’s sale. The bank asserts that it had exercised its option to accelerate the second note because of default in payment of the first note, among other reasons, and had so notified the construction company. Plaintiff argues, however, that the specific language of the deed of trust securing the second note limits the power of sale to default in payment of the second note and does not authorize acceleration because of other indebtedness.

We hold that the deed of trust does not so limit the power of sale. By its printed provisions, with appropriate typewritten description of the particular note, the deed of trust recites that it is given to secure a certain promissory note in the principal amount of $51,000 payable on or before December 7, 1973, and also “all other and additional debts, obligations, and liabilities of every kind and character of Grantor, now or hereafter existing in favor of Bank.” Plaintiff contends that this broad language of the printed form is limited by the following typewritten provision: “This Deed of Trust is given to secure payment of the hereindescribed note, which said note represents monies advanced for certain improvements on the hereinabove described property.”

We do not agree that this typewritten provision is inconsistent with the printed provision concerning security for “all other and additional debts.” The typewritten provision has no language of exclusion. In our opinion, both provisions can and should be read together to express the intention that the deed of trust shall secure the particular note, representing monies advanced for improvements on the land described, and also any other debts of the construction company to the bank. Consequently, we hold that the trustee’s sale is not subject to attack on the ground that there was no default in payment of the note for $51,000.

Affirmed.

      . Among other covenants, the borrower promised “promptly to pay all bills for labor and material incurred in connection with the Mortgaged Property and never to permit to be fixed against the Mortgaged Property any lien, even though inferior to the lien hereof, for any such bill which may be legally due and payable . . . .”
      The deed of trust further provides:
      “If Grantor should fail to keep or perform any covenant whatsoever contained in this deed of trust, the Holder may, but shall not be obligated to any person to do so, perform or attempt to perform said, covenant, and any such payment so made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the indebtedness hereby secured . . .” [Emphasis added.]


author: DUNAGAN, Chief Justice.

text:
    Jacquelyn Layne WILEY, Appellant, v. Kelly SPRATLAN, Appellee.
    No. 856.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 30, 1975.
    Rehearing Denied Nov. 20, 1975.
    Eldred Smith, Longview, for appellant.
    A. D. Clark, III, Asst. Dist. Atty., Tyler, for appellee.
    Michael Thompson, Tyler, guardian ad li-tem for the child.
   DUNAGAN, Chief Justice.

This is an appeal by the natural mother of a minor child from a non-jury termination of the parent-child relationship by the Smith County Domestic Relations Court pursuant to Tex. Family Code Ann. Section 15.02(1)(E) and (2). The natural father defaulted and does not appeal.

The parents relinquished temporary custody of the child to the Smith County Child Welfare Unit in February 1973, and each was requested to make support payments of $33 per month. The parents were divorced in September 1973. Appellee, the Supervisor of the Child Welfare Unit, instituted this termination suit on July 16, 1974, alleging that both parents failed to support the child during the period of July 17, 1973, to July 16, 1974.

The trial court found the following facts: that during the aforementioned period appellant made support payments only in August 1973, May 1974 and July 1974; that appellant was employed and received income in October, December, January, March and April of that period; and that appellant had a savings account of $500 in that period. The conclusions of law were (1) that appellant failed to support the child in accordance with her ability during the period of one year ending with July 16, 1974, and (2) that termination of the parent-child relationship was in the best interest of the child.

Appellant’s basic contentions in this court are (a) that there was no evidence to support the judgment or (b) that the evidence was insufficient to support the judgment. We overrule both contentions.

We look only to the favorable evidence in passing upon the no evidence points and the entire record in passing upon the other points of error.

These evidentiary points are based upon the argument that termination of a parent-child relationship is warranted only in circumstances of complete non-support. Cawley v. Allums, 518 S.W.2d 790, 792 (Tex.1975); Leithold v. Plass, 505 S.W.2d 376, 378 (Tex.Civ.App. — Houston 14th Dist. 1974, writ ref’d n. r. e.). Appellant argues that since the making of three payments during the relevant period is uncontrovert-ed, there is no evidence of complete nonsupport.

The requirement of complete non-support was formulated in cases applying Section 6(a) of Tex.Rev.Civ.Stat.Ann. art. 46a, a provision for the adoption of a minor without the consent of a non-supporting parent. This provision was strictly construed in favor of such parent. Cawley v. Allums, supra.

The case at bar was instituted under Section 15.02 of the Family Code. Section 15.02(1)(E) is derived from Section 6(a) of Article 46a. However, Section 15.02(2) requires that termination be in the best interest of the child and therefore should be construed differently from Article 46a. Moreover, Section 14.07(a) of the Family Code provides that the best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship. This is a broad rule which applies in a suit to terminate a parent-child relationship. Ayala v. Waldner, 426 S.W.2d 628, 631 (Tex.Civ.App. —Houston 1st Dist. 1968, no writ). A parent’s right to custody of his child is not absolute but is subject to judicial control when the best interest of the child requires it. Barrie v. Costello, 401 S.W.2d 707, 709 (Tex.Civ.App. — Austin 1966, writ ref’d n. r. e.). “The right of a parent must yield to the welfare and best interest of the child.” Miller v. Watters, 466 S.W.2d 94, 96 (Tex.Civ.App. — Austin 1971, writ ref’d n. r. e.). The cases strictly favoring the rights of parents cannot be determinative of Situations in which the primary consideration of the court must be the best interest of the child.

After a careful study of the record we find the evidence to be sufficient to support the trial court’s findings and judgment.

The judgment of the trial court is affirmed.

      . Section 15.02 states, in pertinent part:
      “A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
      (1) the parent has:
      * * * * * *
      (E) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;
      * * *” and
      “(2) termination is in the best interest of the child.”


author: McKAY, Justice.

text:
    SOUTHERN COUNTY MUTUAL INSURANCE COMPANY, Appellant, v. Wayne SMITH, Appellee.
    No. 854.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 30, 1975.

      Michael R. McGown, Weller, Wheelus & Green, Beaumont, for appellant.
    James A. Doherty, San Augustine, for appellee.
   McKAY, Justice.

Appellant, Southern County Mutual Insurance Company, brings this appeal from an order of the district court of San Augustine County overruling its plea of privilege. Appellee, Wayne Smith, has not filed a brief on appeal. Therefore, we may accept as correct the statements contained in appellant’s brief relating to the facts and the record. Rule 419, T.R.C.P.; Gonzales v. Gonzales, 224 S.W.2d 520 (Tex.Civ.App.— San Antonio, 1949, writ ref’d).

Appellant’s brief states that appellee is the insured under a policy of fire insurance issued by appellant covering a mobile home owned by appellee and located in Orange County, Texas. In 1974 the mobile home was destroyed by fire within the terms of the policy, and appellant paid $4,000 to one Louis Nelson who had a first lien on the mobile home. Subsequently, appellee filed this suit in the district court of San Augustine County, the county of appellee’s residence, seeking to recover from appellant an additional $800.00 allegedly due under the policy.

Appellant filed a plea of privilege to be sued in Dallas County, the county where its home office and principal place of business is located and, therefore, the county of appellant’s residence. Appellee filed a controverting plea alleging solely that venue was maintainable in San Augustine County under sec. 28 of Art. 1995, V.A.T.S. After hearing evidence and argument of counsel, the district court ordered appellant’s plea of privilege overruled, and it is from this order that appellant appeals.

Sec. 28 of Art. 1995, V.A.T.S., is as follows:

“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:
28. Insurance. — Suits against fire, marine or inland insurance companies may also be commenced in any county in which the insured property was situated. Suits on policies may be brought against any life insurance company, or accident insurance company, or life and accident, or health and accident, or life, health and accident insurance company in the county where the home office of such company is located, or in the county where loss has occurred or where the policyholder or beneficiary instituting such suit resides.” (emphasis added)

Appellant contends in his first point of error that the district court erred in overruling his plea of privilege because “ . subdivision 28 does not apply herein because this is a fire loss and the property was not situated in San Augustine County, but in Orange County, and the provisions of subdivision 28 applicable to accident insurance claims do not apply as a matter of law to this fire loss claim.” We agree with this contention.

Although not required to do so under Rule 419, T.R.C.P., we have examined the record and have found the evidence to be undisputed that this is a suit on a fire insurance policy on a claim for loss caused by fire. There is no allegation in appellee’s petition or controverting plea and no evidence that appellant is a life, health, or accident insurance company. Further, the evidence is undisputed that the mobile home was destroyed by fire in Orange County, the county where it had been permanently situated.

In our opinion, venue of a suit against a fire insurance company for a fire loss is limited to either the county of a defendant’s residence under the general venue rule or in the county where the property was situated at the time it was destroyed by fire under sec. 28. The venue facts which must be pleaded and proved in order to sustain venue under the exception found in the first sentence of sec. 28 relating to suits against fire insurance companies are: (1) that the suit is against a fire insurance company, and (2) that the alleged insured property was situated in the county where the suit is filed. Commercial Standard Insurance Company v. Caylor, 333 S.W.2d 161 (Tex.Civ.App. — Austin, 1960, no writ); McKinney v. Calvert Fire Ins. Co., 257 S.W.2d 452 (Tex.Civ.App. — Eastland, 1953, mand. overr.). Exceptions to the venue statute must be strictly construed and clearly established before a defendant can be deprived of the right to be sued in the county of his domicile. National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021 (1943, opinion adopted). Further, under the statutory rule of construction, expressio unius est exclusio alterius, it has been held that the express mention or enumeration of one thing or class is tantamount to an express exclusion of all others, Peterson v. Calvert, 473 S.W.2d 314 (Tex.Civ.App. — Austin, 1971, writ ref’d); and that a provision limiting a thing to be done in a particular form or manner implies that it shall not be done otherwise. Steakley v. Braden, 322 S.W.2d 363 (Tex.Civ.App. — Austin, 1959, writ ref’d, n. r. e.). Therefore, that portion of sec. 28 authorizing venue in the county of the policyholder’s residence applies only to suits involving life, health, or accident insurance companies, and not to suits against fire insurance companies on fire loss claims. We hold as a matter of law, on the record before us, that under sec. 28 of Art. 1995, V.A.T.S., venue in this case cannot be sustained in San Augustine County, the county of appellee’s residence.

Our decision of appellant’s first point of error renders consideration of appellant’s remaining points unnecessary.

The order of the trial court denying appellant’s plea of privilege is reversed and the cause is ordered transferred to a district court of Dallas County, Texas.


author: STEPHENSON, Justice.

text:
    Dr. Gerald L. HURST, Appellant, v. Richard W. FORSYTHE, Appellee.
    No. 7682.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 30, 1975.
    Rehearing Denied Nov. 21, 1975.

      John 0. MacAyeal, Dallas, for appellant.
    John D. Gilliland, Dallas, for appellee.
   STEPHENSON, Justice.

This is an appeal from a summary judgment in favor of defendant. Plaintiff, Dr. Gerald L. Hurst brought this action against defendant, Richard W. Forsythe, for damages for breach of contract. The parties will be referred to here as they were in the trial court.

The allegations in plaintiff’s petition show the following: Defendant persuaded plaintiff to join with him and others to form a new corporation named Kinetics International Corporation (KIC). Plaintiff was to be the head scientist and devote his efforts to inventing a new explosive. Defendant agreed to see that plaintiff had a certain number of shares in the new corporation, and in addition “Forsythe agrees to exhibit best efforts to secure for Hurst from the KIC board an additional 33,000 shares of common [stock] within approximately one year which will be subject to the same restrictions of his employment contract as his initial stock with such efforts by Forsythe wholely [sic] dependent upon the performance, relationship with Forsythe and results of Hursts [sic] work during his first year of employment with such efforts by Forsythe to continue as long as feasible.” This quoted paragraph was a part of a contract written by defendant in his own handwriting. It is the breach of this part of the contract which is made the basis of this cause of action.

Defendant’s position in the trial court and here is that plaintiff executed a release of his cause of action, if he had one. The summary judgment pleadings and proof show that plaintiff invented a new explosive and because of that invention all of the stock in KIC was sold for $5,500,000. A stock acquisition contract was executed between all of the stockholders in KIC and Tyler Holding Corporation, and it is this instrument that defendant contends is a release of any cause of action plaintiff had. We do not agree.

There is nothing in that part of the stock acquisition contract which is in our record to indicate plaintiff was executing a release to defendant. There is nothing in such contract to show that defendant was named or otherwise specifically identified as being a person which plaintiff intended to release from a cause of action for damages for failure to secure additional stock. The Supreme Court of Texas in McMillen v. Klingensmith, 467 S.W.2d 193 (Tex.1971), made it clear that this is the simple rule in Texas today.

Defendant also contended in his motion for summary judgment that he was acting as an officer on behalf of KIC in making the contract sued upon. That the execution of that contract being an act of the corporation could not form the basis for any personal liability on his part. We do not agree.

We find nothing in the three page handwritten agreement to support that contention. The first sentence in the agreement reads: “This agreement is entered into between Richard W. Forsythe and Dr. Gerald L. Hurst.” Then followed the quoted language whereby Forsythe agreed to use his best efforts to secure the additional 33,000 shares of stock. It is apparent that this was a contract with defendant personally, and not with KIC.

The construction of the agreement here sued upon must be in accordance with the rules prescribed by our courts governing “good faith satisfaction of the employer” cases. The summary judgment proof shows defendant made no effort to secure additional stock for plaintiff, and defendant did not prove good faith dissatisfaction as a matter of law. See Maxwell v. Cardinal Petroleum Corp., 471 S.W.2d 785 (Tex.1971).

Reversed and remanded.


author: ELLIS, Chief Justice.

text:
    T-ANCHOR CORPORATION, Appellant, v. TRAVARILLO ASSOCIATES, a California Limited Partnership, Appellee.
    No. 8563.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 31, 1975.

      Stalcup, Johnson, Meyers & Miller, David J. White, Dallas, Miller, Sanders & Baker, Dee Miller, Amarillo, for appellant.
    Stokes, Carnahan & Fields, O. P. Fields, Amarillo, for appellee.
   ELLIS, Chief Justice.

This is a suit for permanent injunction against interference with the right of possession claimed by plaintiff-appellant, T-Anchor Corporation, a Texas corporation, pursuant to a forfeiture provision contained in an installment contract for the sale of real property designated as Travelodge West Motel, in Amarillo, Texas, entered into between T-Anchor as seller and Young Properties Corporation, a California corporation, as buyer. After trial without a jury, the trial court rendered judgment against T-Anchor that it take nothing by its suit, and for defendant-appellee, Travarillo Associates, a California limited partnership, the assignee of Young Properties, on its cross-action for possession of the motel property. T-Anchor brings this appeal from the judgment of the trial court. Affirmed.

The right to forfeiture which T-Anchor claims and upon which it bases its suit for injunction is contained in paragraph XIII of the contract of sale. After setting out that time shall be of the essence, the contract further provided that if the buyer fails to pay any of the installments or breaches any of the conditions of the contract, the seller shall have the right, after giving written notice to the buyer, to declare the contract forfeited and cancelled and of no further force and effect.

Appellant asserts its entitlement to exercise its contractual right of forfeiture by reason of default on the part of the buyer and its assignee in making the required installment payments. We note that, among other contentions, appellee insists that appellant’s claim for possession and title based on termination or forfeiture of the contract was not raised at the trial level and cannot properly be advanced for the first time and considered in this appeal. However, after reviewing the entire record, including the pleadings and the evidence admitted, we have determined to consider appellant’s asserted rights concerning the alleged forfeiture and the injunctive relief sought.

After trial on the merits, the trial court rendered its judgment which decreed that: (1) certain interlocutory orders be dissolved which had restrained and enjoined Travaril-lo Associates, the assignee of Young Properties, the original purchaser, from the taking possession of the Travelodge West Motel, the subject of the contract of sale entered into on April 4,1973; (2) Travarillo is the owner and holder of all rights of “purchaser” as formerly held by Young Properties under the contract of sale; (3) the contract of sale is in full force and effect, and Travarillo with its acquired rights as purchaser is entitled to possession of the Travelodge West Motel described therein; (4) certain monies tendered into the registry of the court by Travarillo be paid to T-Anchor, the seller, and that the balance in the registry be paid to Travarillo; (5) the only real parties in interest in this case are T-Anchor and Travarillo; and (6) all other parties named as defendants have no interest in this controversy and are dismissed from the suit. Subsequent to the judgment, the trial court ordered that the agreement of the parties with respect to the payment and receipt of the monies paid out from the registry of the court would not constitute 'any agreement to the judgment entered in this cause by T-Anchor nor in any manner affect T-Anchor’s notice and right of appeal.

Upon request, findings of fact and conclusions of law were made by the trial court. Since this appeal is determinable from competing equitable considerations necessarily based upon a series of acts and conduct of the parties, we shall set out what we deem to be the court’s significant factual findings and legal conclusions.

Among other facts found by the trial court were that: on April 4, 1973, T-Anchor, the seller, entered into a contract for the sale of the Travelodge West Motel in Amarillo, Texas, with Young, the buyer; as a part of the same transaction, Young and Travarillo entered into an agreement of purchase and sale of the motel whereby Travarillo acquired all of Young’s interest in the motel; T-Anchor consented to the assignment of the contract interest from Young to Travarillo upon the terms that Travarillo could acquire all of Young’s interest in the motel if Young should default in its contract payments to Travarillo; and on the same date, April 4, 1973, Young was placed in possession of the motel under a leaseback agreement with Travarillo.

Although there was evidence of prior late payments and acceptance thereof by T-Anchor, the trial court found that beginning with the payment due in November, 1973, Young defaulted in its monthly payments to T-Anchor in the amount of $10,812.17 each, and in each of its monthly lease payments to Travarillo in the amount of $6,471.00. The court further found that pursuant to a proceeding brought by Young, on October 31, 1973, a bankruptcy court in California entered its order restraining all creditors of Young from accelerating or attempting to accelerate any indebtedness of Young, from enforcing any rights or remedies provided in any agreements with Young, and from cancelling any such agreements or commencing any kind of forfeiture proceeding against Young; and that throughout the restraining period ordered by the bankruptcy court, Young remained in possession of the motel, but made no payments to T-Anchor or to Tra-varillo.

Additionally, the court found that: T-Anchor defaulted in the first and second lien payments which it was required to make to Home Savings and Loan Association of Waterloo, Iowa, and to Amarillo National Bank of Amarillo, Texas, under the sale contract with Young; both T-Anchor and Travarillo appeared in the bankruptcy proceeding seeking relief from the bankruptcy court’s restraining order, T-Anchor seeking cancellation of the sales contract and Travarillo seeking cancellation of the lease agreement and possession of the motel; T-Anchor, in its pleadings in bankruptcy court, fully recognized that Travaril-lo was the assignee of Young and held all of the interest of Young in the motel and that Young was only a defaulting lessee at the time of the bankruptcy; on April 2, 1974, the bankruptcy court entered an order directing Young to vacate the motel ten days after the date of the order, and dissolving the restraining orders against T-Anchor and Travarillo on or about April 12, 1974; as of the date of the dissolution of the restraining orders, Travarillo was the owner of all of the interest of Young in the sales contract with T-Anchor; immediately after the bankruptcy court entered its order on April 2, 1974, the general partner of Travarillo tendered full payment of all delinquent land sales contract installments to T-Anchor and otherwise tendered performance of all delinquent obligations of Young to T-Anchor to make performance current under the contract; and T-Anchor wrongfully refused the tender by Travarillo and assumed possession of the motel as Young vacated.

The trial court further found that: the money contributed to the purchase of the motel was principally that of Travarillo in the amount of $300,000; T-Anchor received as cash consideration for the motel $137,-500; and some $200,884.32 was required to bring the obligations of Young current under the land sales contract, including delinquent interest and penalty due from T-Anchor to the first lienholder plus attorneys’ fees paid by T-Anchor in attempting to secure performance of the contract or possession, all of which, ought equitably to be reimbursed to T-Anchor.

Also, the court made findings that: since T-Anchor was in possession of the motel from April 20, 1974, to the time of trial on the merits, it had realized from motel operations a profit of $113,097.09 after expenses; after deducting the profits of T-Anchor from the amount required to bring the contract obligations current, the sum of $87,787.23 was found to be owing to T-Anchor by Travarillo; Travarillo paid into the registry of the trial court the sum of $100,-000, a sum sufficient to make T-Anchor whole under the land sales contract; and receipt of $87,787.23 thereof by T-Anchor would fully adjust the equities of the parties and all accounts between them up to September 5, 1974, the date of the trial on the merits.

Additionally, the trial court found that: it would be exceptionally harsh and unjust to forfeit the monies contributed by Travar-illo to the motel project and an unjust enrichment to T-Anchor by allowing forfeiture of the purchaser’s rights under the land sales contract in the face of unusual circumstances where a debtor in bankruptcy was continued in possession of the property while making payments to no one; it would be unreasonable to refuse Travarillo the right to pick up the obligations of Young once the bankruptcy restraining order was terminated; upon payment to T-Anchor of $87,787.23 from the registry of the trial court Travarillo would be entitled to possession of the motel as owner and holder of the land sales contract of April 4, 1973, and the contract is in full force and effect with all payments due thereunder made current through the month of September, 1974.

The conclusions of law by the trial court were that: (1) Travarillo is entitled to equitable relief from forfeiture of the purchaser’s rights under the land sales contract; (2) the land sales contract is in full force and effect and that Travarillo is the owner of all the rights of purchaser thereunder; (3) T-Anchor is entitled to recover from the registry of the trial court $87,787.23; (4) Travarillo is entitled to possession of the motel; and (5) T-Anchor is not entitled to any injunctive relief.

T-Anchor predicated its appeal upon thirty-two points of error. For convenience we shall discuss T-Anchor’s points of error in the same groupings as in its brief.

In its first two points T-Anchor contends that the judgment of the trial court denying forfeiture of the contract cannot be supported without findings of waiver and default on the part of T-Anchor. T-Anchor requested amended and additional findings of fact and conclusions of law which would have established and held that T-Anchor did not waive its right under the contract to forfeiture and that through the effective date of forfeiture, T-Anchor fulfilled its obligations under the contract. Both of these theories of waiver and default by T-Anchor as requested are inconsistent with and contrary to the findings of fact and conclusions of law made by the trial court. The trial court need not make findings of fact or conclusions of law which are in conflict with the original findings and conclusions made. Neither is the trial court required to make findings of fact on evidentiary matters as distinguished from controlling matters. Plaza Co. v. White, 160 S.W.2d 312 (Tex.Civ.App. — San Antonio 1942, writ ref’d); Wade v. Taylor, 228 S.W.2d 922 (Tex.Civ.App. — Amarillo 1949, no writ). The findings of fact and conclusions of law requested by T-Anchor either are evidentiary if no forfeiture was found to exist prior to a possible waiver or default by T-Anchor, or, if they are controlling matters, then such requested findings and conclusions are in conflict with the findings of fact and conclusions of law originally made by the trial court that no forfeiture occurred. Further, in view of the holding of the trial court that Travarillo is entitled to equitable relief from forfeiture, a finding of waiver or default by T-Anchor is not necessary to support the judgment. Points of error numbers 1 and 2 are overruled.

In points of error numbers 3 through 11, T-Anchor contends that the tender of performance by Travarillo was deficient and thus cannot operate to prevent forfeiture of the contract of sale. Points of error numbers 3, 5-7, and 9-11 all concern the amount of the tender of money made by Travarillo. T-Anchor contends that a tender of the amount necessary to bring the contract payments current is not tender of a sufficient amount to put Tra-varillo in possession of the motel as its owner. Such a contention by T-Anchor is predicated upon its assertion that the contract was, indeed, forfeited; therefore, T-Anchor contends that the only amount that can be tendered by Travarillo to put Tra-varillo in possession of the motel is the balance of the unpaid purchase price under the contract of sale. However, the holding of the trial court was that the contract was in full force and effect so that the equity of redemption mentioned in paragraph XIII of the contract was not required to be invoked. Thus, Travarillo was not required to pay the balance of the unpaid purchase price since it had never forfeited the contract. By bringing the contract obligations up to date, Travarillo made T-Anchor whole under the contract of sale which was held to be in full force and effect.

Further, in points of error numbers 3-11, T-Anchor contends that the equities are in its favor to allow a forfeiture and not in favor of Travarillo to deny forfeiture. The trial court found that it would be exceptionally harsh and unjust to forfeit the monies contributed to the motel project and unjust enrichment to T-Anchor to allow forfeiture of Travarillo’s rights under the contract in the face of unusual circumstances, namely, that the debtor in bankruptcy, Young, was continued in possession of the motel while paying no one. The trial court held that the order of the bankruptcy court prevented forfeiture of the contract until April 12, 1974. The trial court further held that since Travarillo was tendering performance in full prior to April 12, 1974, it would be unreasonable to refuse Travarillo the right to pick up the contract obligations of its assignor Young upon termination of the restraining order of the bankruptcy court. The trial court found that T-Anchor defaulted on its first and second lien payments because of the restraining orders which continued Young in possession without requiring Young to make contract payments to T-Anchor.

It is our opinion that the evidence supports the holding of the trial court that Travarillo was entitled to equitable relief from forfeiture. It is an established rule of law that forfeitures are disfavored. Although parties may contract to provide for forfeiture upon default, where equities are shown which justify a continuation of the contract rather than forfeiture of it, the forfeiture will be prevented. Stevenson v. Lohman, 218 S.W.2d 311 (Tex.Civ.App.— Beaumont 1949, writ ref’d); Baines v. Clinton Park Development Co., 224 S.W.2d 729 (Tex.Civ.App. — Galveston 1949, no writ). In view of the disfavor with which the law looks upon forfeitures in a contract for the sale of land and in the light of the unusual chain of events which eventually left Tra-varillo as the buyer under the contract ready, willing and able to perform, we overrule points of error numbers 3-11.

T-Anchor contends in point of error number 12 that the trial court erred in holding that the net profits of the motel earned during a period of possession and operation by T — Anchor were the property of Travarillo as owner of complete title to the motel. T-Anchor presupposes that a forfeiture has, in fact, occurred. The trial court held that a forfeiture was prevented by the restraining order of the bankruptcy court. Therefore, possession of the motel by T-Anchor was during a period when Travarillo was entitled to possession, and, under the holding of the trial court that the contract is in full force and effect, Travaril-lo is, and T-Anchor is not, entitled to the profits of the operation. It is our opinion that the holding of the trial court is sustained by the evidence and the equities of this particular situation. Point of error number 12 is overruled.

In points of error numbers 13-15, T-Anchor contends that it was error to hold that default in the payment of monthly installments by Young commenced with the failure to make the November, 1973 payment. T-Anchor points to undisputed testimony that payments were late in more than one month prior to November, 1973, and that notices of default were sent to Young. The trial court made no express finding of waiver by T-Anchor. We recognize that where express findings of fact are made by the trial court, independent issuable facts may not be supplied by extension of the express findings. Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627 (1957); McKenzie v. Carte, 385 S.W.2d 520 (Tex.Civ.App. — Corpus Christi 1964, writ ref’d n. r. e.). However, the same evidence that would support a finding of waiver by T-Anchor supports the trial court’s application of equitable principles which would efficiently prevent forfeiture of the contract sale. Testimony by Boyce Box, president of T-Anchor, revealed that T-Anchor ultimately received purchase money installments up to the payment due in November, 1973, and that an oral extension of time until October 11 was agreed to by T-Anchor after the September, 1973 payment was made late. This testimony tends to show that T-Anchor considered the contract as continuing after making its initial gesture with respect to forfeiture, and supports the granting of equitable relief to prevent forfeiture. Points of error numbers 13-15 are overruled.

In points of error numbers 16-22, T-Anchor next contends that the trial court erred in failing to find certain facts since such findings are, as stated in T-Anchor’s brief, “supported by the uncontroverted evidence.” The findings requested by T-Anchor relate to the defaults, notices of such defaults sent to Young and absence of tender of performance by Young, prior to November, 1973, as claimed by T-Anchor to establish forfeiture of the contract and termination of Young’s and, therefore, Travar-illo’s interest under the contract.

Even if the specific findings requested by T-Anchor had been made, the result reached by the trial court would not necessarily be changed. In fact, the record reveals that there is evidence of conduct by T-Anchor showing an intent not to terminate the contract but to continue in a contractual relationship. Even after giving notice concerning forfeiture, T-Anchor accepted late payments of purchase price installments although Young failed to comply with its agreement to bring the delinquent payments to a current status or to vacate the motel. The findings requested by T-Anchor even if made would not, in the light of all the evidence, compel a conclusion of law by the trial court that the contract was forfeited and cancelled in October, 1973, as contended by T-Anchor. The trial court need not make findings of fact on mere evidentiary matters with respect to the ultimate issue. Plaza Co. v. White, supra; Wade v. Taylor, supra. Points of error numbers 16-22 are overruled.

With respect to points of error numbers 23-28 we believe that the requested findings of fact on which they are grounded relate only to evidentiary matters not required to be included in the trial court’s findings of fact. The facts they seek to establish would show that Travarillo failed to make various payments to T-Anchor pri- or to trial. Such facts, even if included in the trial court’s findings of fact, would not compel a result different from that reached by the trial court since there was evidence that Travarillo made tender of performance to bring its contract obligations current early in April, 1973, just prior to dissolution of the Young bankruptcy restraining order. Points of error numbers 23-28 are overruled.

The testimony reveals that after this suit was filed and hearing had on temporary injunction, Travarillo attempted to put the motel under the jurisdiction of the bankruptcy court by filing for an arrangement under Chapter XI of the Bankruptcy Act. By its points numbered 29-32, T-Anchor contends it was error for the trial court to fail to find that by this action, Travarillo, in effect, failed to do equity and effectively withdrew its tender of any sums to T-Anchor, resulting in the defeat of any right to prevent forfeiture.

The trial court made no findings of fact with respect to the Chapter XI proceeding initiated by Travarillo. There is much controversy about the reasons for filing the petition for arrangement under Chapter XI. T-Anchor insists that Travarillo sought to repeat the actions of Young, and thus remain in possession of the motel without being required to make payments to T-Anchor. Travarillo insists, on the other hand, that by filing a bankruptcy petition it was only “trying to litigate in every conceivable form” to protect its rights. Travarillo contends that it wanted to use the Chapter XI proceeding “to get a court to make a determination that [it] had a right to cure because [it] had substantial equities” it was in danger of losing. Morgan Jones, a lawyer for Travarillo, testified that it was upon his advice that the Chapter XI proceeding was initiated, asserting that insolvency is not presumed in a Chapter XI proceeding. The only evidence before us on the issue of solvency is that Travarillo was solvent.

The purpose of Chapter XI of the Bankruptcy Act is to provide a quick and economical means of facilitating simple compositions among general creditors who have been deemed by Congress to need only the minimal disinterested protection provided by the Chapter. In Re Texas Consumer Finance Corporation, 480 F.2d 1261 (5th Cir.1973). Further, the Congressional intent in establishing Chapter XI is to provide for an efficient and orderly method by which the claims of unsecured or common creditors of a debtor might be satisfied without resort to general bankruptcy. 9 Remington on Bankruptcy § 3565, p. 32 (Supp.1975).

In any event, we do not think that the trial court was required to make a finding that Travarillo filed a petition under Chapter XI because such a finding would be evidentiary. Plaza Co. v. White, supra; Wade v. Taylor, supra. Moreover, the evidentiary finding would not necessarily compel a different conclusion by the trial court regarding such ultimate and vital issue of termination of the contract.

Further, it is our opinion that the case of Smith v. Owen, 43 Tex.Civ.App. 51, 107 S.W. 929 (1908, writ ref’d), cited in appellant’s brief in support of its contention that tender had been withdrawn, is not applicable to the facts in the instant case. In that case the vendee pleaded defenses inconsistent with his tender of the purchase money; the court held that the plea of limitation title precluded the adjustment of any equities in the vendee’s favor that might allow him to pay the unpaid balance of the purchase money and hold the land. Id. at 930. The court stated in Smith v. Owens, supra, there were no equities pleaded or proved that would entitle the vendee to defeat the remedy of rescission of the contract sought in that case.

In the instant case we have no pleading by Travarillo of any theory inconsistent with its tender of whatever amount the trial court determined to be owing. Further, in the instant case, we find evidence to support a judgment in favor of Travaril-lo upon equitable grounds. By way of cross-action Travarillo invoked the equity jurisdiction of the trial court to deny cancellation of the contract.

Here, Travarillo had paid into the registry of the trial court which, in turn, has paid to T-Anehor, an amount making Tra-varillo current in its obligations. The Chapter XI proceeding initiated by Travar-illo was dismissed, with no change in possession resulting from the proceeding. T-Anchor’s conduct with reference to the forfeiture that it claims occurred on October 11, 1973 was not consistent with such claim of forfeiture. By accepting late payments and by making a subsequent agreement for cure of defects T-Anchor indicated that it continued to consider the contract in force. This is a case where the seller recognized the contract as still in force even after default. Hoover v. General Crude Oil Co., 147 Tex. 89, 212 S.W.2d 140 (1948); Tom v. Wollhoefer, 61 Tex. 277 (1884). Although it may be contended that T-Anchor may have made moves toward some definite action to exercise its right of forfeiture, yet there is evidence of probative force to support a finding that T-Anchor had not unequivocally declared the contract cancelled at the time Young went into bankruptcy on October 31, 1973.

Whether the seller has effectively exercised an option of forfeiture for default in payment depends not upon the number of hours or days that have elapsed since the default in question, but upon whether the circumstances are such that the buyer has, by the conduct of the seller, been led reasonably to believe that strict application of the right of forfeiture will not be insisted upon, for the time being. A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629 (1943). Suspension of the right of forfeiture depends upon the facts in each case. 77 Am.Jur.2d, Vendor and Purchaser, § 589, p. 716; 91 C.J.S. Vendor & Purchaser, § 137, pp. 1076-1077, § 144.

T-Anchor cites Stevenson v. Lohman, supra, in support of its contention that equitable relief should be denied. It is noted that the buyer in Stevenson made no tender of all or part of the contract payments until after suit in trespass to try title was filed. The buyer advised the seller that he would make no further monthly payments, and the seller treated the contract as abandoned. Travarillo has tendered performance to bring the contract obligations up to date before this suit was filed in April, 1974. In the instant case there is evidence that subsequent to the time when T-Anchor contends it first declared a forfeiture, it treated the contract as continuing and not as abandoned. Also, in Stevenson, the court significantly pointed out that the vendor’s right of possession upon default could be defeated by the vendees “upon pleading and proving such facts as would make it inequitable to enforce it.” In view of the equities pleaded and proved here, points of error numbers 29-32 are overruled.

We recognize that this is a case that requires the weighing of competing equities and that the equities do not lie wholly in favor of either party. However, we hold that the trial court’s judgment, based on a balancing of equities, is supported by the record, and that the findings requested by T-Anchor, even if established, would not compel the trial court to reach a different result.

The judgment of the trial court is affirmed.


author: ROBINSON, Justice.

text:
    KEATON McCRARY COTTON CO., INC., Appellant, v. Mrs. Charlie E. HERRON et al., Appellees.
    No. 8535.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 31, 1975.

      Weaver & Ferguson, John T. Ferguson, Big Spring, for appellant.
    Anderson & Rudd, Ray D. Anderson, McGowan, McGowan & Hale, Jim Pete Hale, Brownfield, for appellees.
   ROBINSON, Justice.

In this suit for conversion of the landlord’s ¼ interest in a cotton crop, the trial court entered judgment for the landlord against a cotton buyer who had contracted with the tenant for the crop and denied recovery on the cotton buyer’s claim against the tenant for breach of contract. The cotton buyer appeals. Affirmed in part and reversed and rendered in part.

Plaintiff, Mrs. Charlie Herron, and others whom she represented, owned land which was farmed by tenant Clovis Cline pursuant to an agreement by which the landlord was to receive Vi of the cotton crop as rent. Cline contracted with Keaton McCrary Cotton Co., Inc. to sell all of his 1973 cotton crop. This dispute arose at ginning time, when Mrs. Herron demanded that her Vi be set aside in kind. Keaton McCrary claimed that it had bought the entire crop and the ginner refused to deliver the “green cards” to Mrs. Herron. Mrs. Herron sued the gin-ner and Keaton McCrary for conversion. Keaton McCrary alleged that Cline had the right to contract the entire crop and, in the alternative, sought damages from Cline for breach of his contract.

Upon trial a jury found that Cline did not have the right to market the entire crop and that Cline did not have authority to contract the landlord’s portion of the crop. The jury further found that Cline and Keaton McCrary did not intend that all cotton grown on the farms in question be sold to Keaton McCrary.

Appellant Keaton McCrary contends that a cotton crop belongs to the tenant until harvested and that therefore Cline did have a right to market the cotton free of the landlord’s lien. It further contends that its contract with the tenant, Cline, was plain and unambiguous and obligated him to sell all of the cotton in question.

We first consider whether Cline had a right as a matter of law to contract the entire cotton crop. A tenant owns the entire crop prior to harvest, but, unless the agreement provides otherwise, the landlord also holds an interest in the crop, having “the fixed right to become the owner (of his share) when the time for segregation and delivery arrives.” Millingar v. Foster, 17 S.W.2d 768, 769 (Tex.Comm’n App.1929, jdgmt. adopted). Tex.Rev.Civ.Stat.Ann. art. 5222 (1962) provides a preference lien on the crop in favor of the landlord for rent due. A valid lien exists regardless of actual notice or lack of notice to the purchaser, and the statute is notice to all persons. Mathews v. Burke, 32 Tex. 419 (1870); Caswell v. Leasing & Bennett, 183 S.W. 75 (Tex.Civ.App. — Austin 1915, writ dism’d). If a purchaser buys the crop or a part of it on which the landlord has a lien, without the landlord's consent or authorization to sell, the purchaser is liable to the landlord for a conversion, to the extent of the lesser of the value of the crop converted or the amount of rent due. Zapp v. Johnson and Dick, 87 Tex. 641, 30 S.W. 861 (1895); Farmers’ Elevator Co. v. Advance Thresher Co., 189 S.W. 1018 (Tex.Civ.App. — Dallas 1916, writ ref’d).

The landlord may waive his lien by authorizing the tenant, either directly or indirectly, to sell the crop. Gilliam v. Smither, 33 S.W. 984 (Tex.Civ.App.1896, no writ); Woodson v. Westbrook, 272 S.W. 821 (Tex.Civ.App. — Austin 1925, writ dism’d).

The evidence shows that Cline had never contracted cotton from Mrs. Herron’s farms before. The jury found and the finding is supported by the testimony of both Cline and Mrs. Herron that Cline did not have the right to market the entire cotton crop and that he was not authorized to contract the landlord’s portion of the cotton in question. We conclude that Keaton McCrary converted plaintiff’s share of the cotton crop.

We next consider whether the cotton contract between Keaton McCrary as Buyer and Cline as Seller was rendered ambiguous by its reference to “Seller’s” cotton crop. The pertinent portion of the contract reads as follows:

Seller agrees to sell to Buyer and Buyer agrees to buy from Seller, for the price and under the terms and provisions set forth in this contract, all of Seller’s 1973 cotton crop, by which term is meant all cotton planted in the year 1973, regardless of whether it is harvested in 1973 or 1974, which is grown on a farm (identifying plaintiffs’ farms).

The use of the language “all of Seller’s 1973 cotton crop” does not make the contract ambiguous or of uncertain meaning. The very sentence in which the words are used defines Seller’s cotton crop as including all cotton planted in the year 1973 on Mrs. Herron’s farms. The first duty of the court is to determine if the contract is ambiguous. The intent of the parties to an unambiguous contract must be discerned as a matter of law from the four corners of the instrument, itself. Universal G.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951). Extrinsic evidence of the intent of the parties is immaterial and inadmissible unless the contract is ambiguous. Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977 (1941).

We conclude that Clovis Cline contracted to sell all of the cotton crop, including the landlord’s share, from Mrs. Herron’s farms. Since he, by his own testimony, was not authorized to sell the landlord’s share, he is liable to Keaton McCrary in breach of contract for the cotton that he is unable to deliver.

Keaton McCrary contends that the trial court erred in failing to submit to the jury its defenses of waiver and estoppel. It contends that because Mrs. Herron had in the past, after consultation, permitted Cline to sell her share of the segregated crop along with his, she has either waived her lien or is estopped to assert that Cline did not have authority to contract her share of the crop. The undisputed evidence is that Cline had never before contracted the crop. The jury found that Cline had neither the right to market the entire crop nor the authority to contract the landlord’s share. The fact that he had been permitted to sell the landlord’s share after segregation in a previous year does not mean that he had authority to contract the crop before it was planted and grown. We do not find that the trial court erred in refusing the requested issues.

We do not reach appellant’s other points of error.

It is stipulated that the price of cotton at the time of trial was 40$ per pound. The record shows that of the landlord’s share of 45 bales, weighing a total of 22,950 pounds, 27 bales were contracted at 26.89$ per pound and 18 bales were contracted at 26.-69$ per pound. The “green cards” showing the weight of each bale were not sent to this court on appeal. Thus, we are unable to determine the exact number of pounds contracted for at each figure. We have, therefore, calculated the difference between the price at trial and the contract price of the entire 22,950 pounds, using the contract figure of 26.89$ in computing the damages due to Keaton McCrary from Cline. This computation sets the damages at the figure most favorable to the losing party.

The portion of the judgment of the trial court granting Mrs. Herron recovery against Keaton McCrary Cotton Co., Inc. is affirmed. The portion of the judgment de- ■ nying Keaton McCrary relief on its cross action against Cline is reversed and judgment here rendered that Keaton McCrary recover from Clovis Cline its damages in the amount of $3,008.74. Rule 434, Texas Rules of Civil Procedure.


author: SPURLOCK, Justice.

text:
    Orena McNEILL, Appellant, v. Irma Nixon LOVELACE et al., Appellees.
    No. 17656.
    Court of Civil Appeals of Texas, Port Worth.
    Oct. 31, 1975.
    Rehearing Denied Nov. 21, 1975.

      Jimmy P. Horany and Philip S. Kouri, Wichita Palls, for appellant.
    Fillmore, Lambert, Farabee & Purtle, and Glynn R. Purtle, Wichita Falls, for Charles F. Pierce, Jr.
    Stuart & Brunette, and Paul H. Brunette, Wichita Falls, for all other appellees.
   OPINION

SPURLOCK, Justice.

This is an appeal by Orena McNeill, plaintiff, from a summary judgment granted in favor of the defendants.

Plaintiff is seeking to cancel a disclaimer executed by her and a conveyance by deed to real estate and thus obtain judgment for title and possession to the realty involved. The grounds for cancellation are duress and coercion, continuing in nature, exerted upon her by the grantee in the deed who at the time suit was filed was deceased. She also seeks title and possession to personal property alleged to have been converted.

The defendants assert that plaintiff has no cause of action as a matter of law because her cause of action is barred by the two and four year statutes of limitations and that plaintiff’s opposing affidavit, not shown by the record to have been objected or excepted to, cannot be considered by the court because it contravenes Article 3716, V.A.T.S. (the Dead Man’s Statute).

Plaintiff relies upon the contents of her opposing affidavit to toll the running of the statute of limitations and contends that the statute of limitations would not begin to run until the coercion and duress ceased to exist and therefore suit was filed within the four year statute of limitations which is the controlling statute.

We reverse and remand.

Trudie Nixon, Orena McNeill’s sister, purchased the realty as her separate property on July 5, 1961. Plaintiff and Trudie Nixon’s brother advanced the funds to make the down-payment. Trudie Nixon died testate. By the terms of the probated will title passed to Orena McNeill. Trudie Nixon’s surviving husband, James N. Nixon, was the executor of her estate. In accordance with the terms of the will be conveyed the property to Orena McNeill, the plaintiff. Plaintiff alleges that James N. Nixon thereafter, through the use of duress and coercion, obtained from plaintiff a disclaimer to the property and a deed conveying same to him. She also alleged he was in possession of various items of personal property which is the property of plaintiff and that he is withholding same from plaintiff. Plaintiff alleged a count in trespass to try title.

The defendants are Irma Nixon Lovelace and Husband Bryan Lovelace, individually; Irma Nixon Lovelace and Harry N. Feathers, in their capacity as co-independent executors of the estate of James N. Nixon, deceased; and Charles F. Pierce, Jr., James N. Nixon died two years before the suit was filed. Prior to his death he had married Irma Nixon Lovelace. He died testate. Under the terms of the probated will his surviving wife was vested with the title to the property. Plaintiff then claims that she filed a lis pendens notice. Thereafter Irma Nixon Lovelace conveyed the property to Charles F. Pierce, Jr.

In order to recover plaintiff must set aside the disclaimer and the conveyance to James N. Nixon, now deceased, and whose estate is in administration.

The defendants, in general, pleaded not guilty to the trespass count and pleaded the disclaimer and the two and four year statutes of limitations.

All the defendants filed a motion for summary judgment and attached to the motion a warranty deed dated January 13, 1965, from plaintiff to James N. Nixon, reciting a cash consideration and that the conveyance was made subject to a lien in the sum of $16,600.00. Also attached was a disclaimer also dated January 13, 1965, signed and acknowledged by plaintiff, in which she disclaimed any right, title, or interest in and to the property here' involved, reciting: “ . . . that I, due to financial considerations involved, cannot accept this bequest . . ..”

Plaintiff countered by affidavit in opposition to the defendants’ motion for summary judgment. This affidavit in general traces the transaction affecting title as described above.

In addition thereto, plaintiff’s affidavit reflects that after she had received the deed to the real property from James N. Nixon he made a demand upon her to deed the real property in dispute back to him and asked her to disclaim any interest in said property. She refused. He then, over a period of time, applied pressure to her and threatened her by means of telephone and personal contact. He then threatened that unless his demands were met he would exhume the body of Orena’s beloved sister, his deceased wife, from the family gravesite at Westover, in Baylor County, Texas, and would move it to a place where the plaintiff would never know where she was buried.

Plaintiff states she had great love and affection for her sister and such threats on her constituted duress and coercion and she was unduly influenced by such threats. She states that because of such threats, she did execute the deed on December 15, 1965, rather than on January 13, 1965. She further says that because of this she permitted James N. Nixon to keep and occupy the property here involved until his death on March 29, 1968. After his death she then attempted to negotiate reconveyance with his surviving widow. When the surviving widow finally refused to comply with her request she filed this suit on May 12, 1970.

It will be noted that this suit was filed two years and two months after the death of James N. Nixon.

Plaintiff’s points of error, Nos. 1 and 2, are to the effect that a material fact issue exists on the issue of whether or not the instruments here involved were executed as the result of coercion, duress, and undue influence exerted upon her; and that such action on the part of Nixon was of such a continuing nature as to toll the four year statute of limitation.

These points will be discussed together because they are in part interwoven.

The general rules governing the summary judgment practice in Texas are stated in Great American R. Ins. Co. v. San Antonio PI. Sup. Co., 391 S.W.2d 41 (Tex.Sup., 1965). These principles are well known and will not be repeated here.

All parties agree that as to the cause of action concerning the realty, as distinguished from the cause of action for personalty, the four year statute of limitation applies. Article 5529, V.A.C.S.; Goodwin v. City of Dallas, 496 S.W.2d 722 (Waco, Tex.Civ.App., 1973, no writ hist.).

We hold that the two year statute of limitation applies concerning the cause of action for conversion of the personalty. Pierce v. Estate of Haverlah, 428 S.W.2d 422 (Tyler, Tex.Civ.App., 1968, ref., n. r. e.).

The balance of this opinion will be directed to the cause of action for title and possession to the realty.

In Pierce v. Estate of Haverlah, supra, that court stated:

“It is now settled that the burden of proving that there is no genuine issue of any material fact is upon the movant, and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party ruling for a summary judgment. In determining a motion thus depending upon extrinsic evidence, the court’s task is analogous to that which he performs on a motion for directed verdict. He accepts as true all evidence of the party opposing the motion which tends to support such party’s contention and gives him the benefit of every reasonable inference which properly can be drawn in favor of his position. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.
“Generally speaking, any coercion of another, either mental, physical or otherwise, causing him to act contrary to his own free will or submit to a situation or a condition against his own volition or interest, constitutes ‘duress.’ Hailey v. Fenner & Beane (Tex.Civ.App.), 246 S.W. 412.
“The modern doctrine is that whether or not a threat constitutes duress is a question of fact dependent upon all the circumstances and the mental effect on the party claiming duress. .
“In Volume 37, Tex.Jur.2d, page 217, Limitation of Actions, Sec. 77, it is stated:
“ ‘In actions based on duress or undue influence, the operation of the statute of limitations is tolled or suspended and the cause of action is deemed not to accrue until the time that duress or undue influence ceases to exist. * * * ’
“See also Cadena v. Cadena (Tex.Civ.App.), 223 S.W.2d 678; Besteiro v. Besteiro (Tex.Civ.App.), 45 S.W.2d 379; 34 Am.Jur., Sec. 236, p. 193.
“Upon removal of the duress or undue influence, the statute begins to run. 34 Am.Jur., Sec. 236, p. 193.”

When defendants, by their proof, showed that the conveyance was made about five years before suit was filed, plaintiff then had the burden of coming forward with summary judgment proof showing some excuse for the delay in filing suit. Pierce v. Estate of Haverlah, supra. See also Birdwell v. American Bonding Company, 337 S.W.2d 120 (Port Worth, Tex.Civ. App., 1960, ref., n. r. e., 367 U.S. 904, 81 S.Ct. 1920, 6 L.Ed.2d 1250); McDonald, Texas Civil Practice, Sec. 17.26.1; Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.Sup., 1970); Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960), and Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958).

Although plaintiff’s summary judgment affidavit contains some conclusions and references to recorded instruments not attached to her motion in opposition, such proof is not determinative of this appeal. Her affidavit testimony concerning the undue influence and coercion exerted upon her is clear and leaves the inference, by the language used, that its effect continued until Mr. Nixon’s death. She testified these threats were made to her by him, therefore, such testimony is based upon her personal knowledge.

The record in this case does not disclose that any objection or exception was taken to this summary judgment affidavit evidence on the grounds that such affidavit testimony was not admissible under the terms and provisions of Article 3716, V.A. T.S. (the Dead Man’s Statute).

Defendants contend that because of the application of the above statute that the trial court cannot consider such affidavit because it does not comply with the requirements of Rule 166-A, T.R.C.P., the summary judgment rule, and particularly to Section (e) which provides as follows (referring to the required form of affidavits) that such affidavit, “ . . . shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affi-ant is competent to testify to the matters stated therein.”

It is clear that hearsay will not support a summary judgment or hearsay contained in opposing affidavits will not defeat a summary judgment. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.Sup., 1962).

The summary judgment evidence here involved is not hearsay and, therefore, the above rule will not apply.

In Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.Sup., 1971) the Supreme Court indicates that generally the trial court will consider the summary judgment proof under the same rules as to admissibility of evidence that would have been followed if the case had been tried on its merits in a conventional trial proceeding. That court stated: “The trial process includes both the pleading and the trial stages, whether the trial stage be in summary or conventional trial proceedings.”

Rule 166-A, T.R.C.P., makes an exception in that no oral testimony shall be received at the hearing. By court construction other exceptions have been made but none of such exceptions are applicable to the case at bar.

Article 3716 provides, in general, in a situation like we have here, that neither the plaintiff nor a representative of the estate may testify as to any transaction between them and the deceased unless such persons are called to testify by the opposite party.

The record before us on this appeal does not show whether or not the defendants timely objected to the consideration by the trial court of the affidavit that plaintiff presented in opposition to the motion for summary judgment on the grounds that its contents were in violation of Article 3716. That being true we must assume for the purposes of this appeal that the defendants waived the Dead Man’s Statute in so far as the contents of the affidavit are concerned. The evidence contained therein had probative force and when we consider it along with the other summary judgment evidence that was before the court we are convinced that a fact issue was presented as to whether or not plaintiff was acting under duress at the times in question.

In the event of a trial on the merits we assume that the record will be developed in full on the issue of whether or not the defendants did in fact waive the benefit of Article 3716 by failing to object to the trial court considering the contents of said affidavit in deciding the outcome of the motion for summary judgment.

In a summary judgment proceeding it is the better practice for the party attacking summary judgment proof, on the grounds of admissibility or form, to (1) file written objections at or prior to trial, obtain a signed order from the court reflecting its rulings; (2) incorporate in the judgment the objections and the court’s rulings; or (3) have the court reporter make a record of the objections and the court’s rulings. In this manner a record is made that will be incorporated in the transcript and will be before the appellate court for review.

In Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407 (1943) that court stated: “Petitioner insists that this testimony had no probative force, even if admitted without objection. The disqualification of witnesses under Art. 3716, supra, can be waived by failure to object at the proper time and for the proper reason, and when the disqualification is so waived the testimony has probative force. Besteiro v. Besteiro, Tex.Com. App., 65 S.W.2d 759; Adam v. Adam et aL., Tex.Civ.App., 127 S.W.2d 1001; 14 Tex.Jur., p. 329, sec. 544.” See also Wilbanks v. Wilbanks, 160 Tex. 317, 330 S.W.2d 607 (1960).

For a discussion of the applicable law see Vol. 27, Texas Bar Journal, p. 315, “The Dead Man’s Statute”, by Ruel C. Walker, Justice of the Supreme Court of Texas, and particularly that portion of his discussion of the law beginning on page 373 entitled, “Waiver.”

If this case were tried in a conventional trial and no objection was made to the testimony on the grounds that the witness was disqualified under the terms of the above statute, the testimony would be clearly admissible and have probative force. The question then arises as to whether or not in a summary judgment proceeding the philosophy expressed in the Hidalgo case should be followed.

We hold that it was the duty of the defendants who were present through their attorneys at the hearing on the motion for summary judgment to have objected to the affidavit on the basis of the disqualification contained in Art. 3716 and cause the record to reflect this fact and having failed to do so waived same as far as this appeal is concerned.

In Youngstown Sheet & Tube Co. v. Penn, supra, that court held: “Unlike the case of Box v. Bates, Tex. [162 Tex. 184], 346 S.W.2d 317, the factual statements made in the affidavits are not obviously based on hearsay. The information regarding the affiants set out therein and the nature of the facts stated indicated that each affiant probably has personal knowledge of and is competent to testify to such facts. If petitioner was in any doubt as to these matters or if it was prejudiced in any way by the fact that sworn or certified copies of the operating agreements were not attached to or served with the Johnson affidavit, it should have excepted to the affidavits at or prior to the hearing.” (Emphasis ours.)

In Texas Nat. Corp. v. United Systems Internad, Inc., 493 S.W.2d 738 (Tex.Sup., 1973) that court held that certain summary judgment evidence could not be considered because proper exceptions were taken to the summary judgment evidence at the proper time.

In Leach v. Cassity’s Estate, 279 S.W.2d 630 (Port Worth, Tex.Civ.App., 1955, ref., n. r. e.) this Court, speaking through Massey, Chief Justice, had before it a summary judgment proceeding in which the plaintiff, as a non-moving party, tendered a counter affidavit signed by the administratrix of the estate of the deceased and who was also a defendant in the suit. This Court stated: “The moving parties, anticipating in advance that such would be the case, objected to its reception and consideration as being in violation of the ‘dead man’s statute’. The trial court sustained the objection and refused to admit and consider Mrs. Puckett’s testimony as valid and proper evidence upon the motion for summary judgment.” (Emphasis ours.) The Court then held in effect that since such summary judgment evidence was properly and timely objected to, for the proper reason, and the court having properly sustained same, such evidence could not be considered in the summary judgment proceeding.

In Kellner v. Blaschke, 334 S.W.2d 315 (Austin, Tex.Civ.App., 1960, ref., n. r. e.) that court approved the use of special exceptions to challenge the admissibility of summary judgment affidavits.

The remaining question is whether or not the statute of limitations barred the cause of action as a matter of law. We hold that the testimony contained in plaintiff’s summary judgment affidavit concerning continuing duress and coercion raised a fact issue on the question of the tolling of the statute of limitations and thus prohibited the granting of the summary judgment.

Judgment reversed and cause remanded to the trial court for a new trial.