author: BISSETT, Justice.

text:
    Wallace GROVES et al., Appellants, v. Virginia HANKS, Appellee.
    No. 1086.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 30, 1976.
    Rehearing Denied Jan. 26, 1977.

      Ralph Alexander, Kelley, Looney & Alexander, E. G. Henrichson, Henrichson & Smith, Edinburg, for appellants.
    William E. York, McAllen, for appellee.
   OPINION

BISSETT, Justice.

This is a suit to recover damages for an alleged breach of contract between Bryan Hanks and Wallace Groves, and to recover the proceeds of certain checks which were made payable to Bryan Hanks and were allegedly converted by Wallace Groves, his employees, and the defendant banks when the monies represented by the cheeks were deposited to Wallace Groves’ accounts in the banks.

Bryan Hanks, (Hanks) died on December 18, 1972. This suit was instituted on August 30, 1973 by Virginia Margaret Wooding Hanks, (Mrs. Hanks), the widow of Hanks, who sued individually and as independent executrix of the Estate of Bryan Hanks, Deceased. The defendants are: Wallace Groves, (Groves), William Gaudet, (Gaudet), L. C. Hill, (Mrs. Hill), the First National Bank of Edinburg, Texas, (Edin-burg Bank), and the First National Bank of Mission, Texas, (Mission Bank). In addition to defensive pleadings filed by all of the defendants, Groves filed a cross action against Mrs. Hanks to recover certain monies which she withdrew from a bank account standing in the name of “Bryan Hanks, Agent”, which allegedly was owned by Groves.

Following a trial to the court, no jury having been demanded or empanelled, judgment was rendered in favor of Mrs. Hanks on both actions brought by her, and all relief sought by Groves on his cross action was denied. In particular, the judgment awarded Mrs. Hanks: 1) all of the money, ($72,325.29) previously escrowed with the Continental National Bank of Fort Worth and paid into the registry of the United States District Court for the Northern District of Texas, Forth Worth Division, pending the outcome of this suit, together with interest thereon; further awarded Mrs. Hanks $39,372.15, together with interest thereon from August 15,1972 until September 29, 1975 at the rate of 6% per annum, against Groves, Gaudet, Mrs. Hill and the Edinburg Bank; and further awarded Mrs. Hanks $68,052.86, together with interest thereon from August 16,1971 until September 29, 1975 at the rate of 6% per annum, against Groves, Gaudet, Mrs. Hill and the Mission Bank. The judgment further provided that the various sums of money awarded Mrs. Hanks would bear interest at the rate of 9% per annum from and after September 29, 1975 until paid, and that the Edinburg Bank have judgment over and against Groves, Gaudet and Mrs. Hill for the said sum of $39,372.15, together with interest thereon, and that the Mission Bank have judgment over and against Groves, Gaudet and Mrs. Hill for the said sum of $68,052.86, together with interest thereon. All of the defendants have appealed from the judgment in favor of Mrs. Hanks, but the defendants Groves, Gaudet and Mrs. Hill have not appealed from the portions of the judgment which awarded judgment in favor of the banks over and against them.

Findings of fact and conclusions of law were filed by the trial judge. The findings have not been attacked in this appeal by specific points of error. At the end of the statement and argument made by Groves under point four (his last point) in his original brief and immediately preceding the prayer appears the following paragraph:

“To the extent that the Findings and Conclusions of the Court may conflict with the above, which are based upon stipulations and undisputed evidence, such Findings and Conclusions should be disregarded.”

The above-quoted portion of Groves’ brief is nothing more than a mere blanket assertion that at least some of the findings are contrary to the evidence, does not point out in what respect the findings conflict with Groves’ asserted points of error, and does not state in what respect each particular finding is not supported by the undisputed evidence. The paragraph is a mere abstraction that does not point out anything tangible or definite. It is too general to be considered as a sufficient challenge to any particular finding of fact. See Hardeman v. Timmins, 111 S.W.2d 746 (Tex.Civ.App.—El Paso 1937, writ dism’d); Southern Pine Lumber Co. v. Nemer, 17 S.W.2d 852 (Tex.Civ.App.—Galveston 1929, no writ); Danciger v. Wood, 240 S.W. 694 (Tex.Civ.App.—Amarillo 1922, no writ).

Mrs. Hanks, as plaintiff, admitted in her pleadings that her husband and Groves, pri- or to May 6, 1946, entered into “a business arrangement . . . to be carried entirely under the name of Bryan Hanks”, and that Groves “paid the purchase price and operating expenses of the properties purchased, including any losses”; that “Hanks was to devote his time to the management of the properties, and was to own a 10% interest in and to receive 10% of any net profits on the sale of any of said properties plus a salary of $36,000.00 per year”. She alleged that Groves owed Hanks “well over $400,000.00”. The agreement dated May 13, 1971, by and between Hanks and Groves, hereinafter discussed in detail, which terminated the business relationship between Hanks and Groves, was made a part of her petition; she Sieged that Hanks complied with all terms and conditions imposed upon him by the termination agreement; that Groves, with the exception of the payment of $400,000.00 to Hanks, breached the agreement; and that as a result thereof, she was entitled to 10% of the net profits accruing to Groves from the sale of certain properties which were sold by Groves after May 13, 1971.

Mrs. Hanks also sought to recover the proceeds of certain checks which were made payable to Bryan Hanks, and which were deposited by Mrs. Hill, the employee of Groves, to the account of Groves in the defendant banks. She alleged that while Hanks was managing the properties Mrs. Hill was the office manager for the business and that she was given “a power of attorney in connection therewith”; that the power of attorney was cancelled by the termination agreement; that Mrs. Hill, from and after May 13, 1971, “was the employee solely of Wallace Groves”; that she endorsed the name of Bryan Hanks to the checks and deposited them in Groves’ bank accounts, entitled “Monte Christo Ranch”, in the defendant banks without the authority of Hanks; and that such action by Mrs. Hill amounted to a conversion of the checks to her damage in at least the sum of $107,425.01.

Certain evidentiary facts were conceded by a written stipulation of the parties. The other facts which were proven were established by undisputed evidence. In that state of the record, it was the duty of the trial judge, in this a non-jury trial, to determine the legal effect of the stipulated facts and the undisputed evidence and to correctly apply the law to the conceded or undisputed facts. Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (Tex.Com.App., 1935); Employers Casualty Company v. American Employers Insurance Company, 397 S.W.2d 292 (Tex.Civ.App.—Amarillo 1965, writ ref’d, n. r. e.). See also Dallas General Drivers, Warehousemen And Helpers v. Wamix, Inc., of Dallas, 156 Tex. 408, 295 S.W.2d 873, 879 (1956).

Sometime prior to May 6, 1946, Hanks and Groves entered into a contract whereby Hanks agreed to act as agent and attorney in fact for Groves in the acquisition, operation and sale of certain properties. Thereafter, properties were purchased and operated pursuant to the contract, including certain lands in Hidalgo County, Texas, designated by the parties as the “Valley Lands”, and certain lands in the City of Fort Worth, Texas, designated by them as the “Summit Avenue Property”.

The business arrangement between Hanks and Groves was terminated by an instrument in writing which was dated May 13, 1971. The instrument was introduced into evidence without objection. It was agreed:

(1) Hanks, would execute and deliver to Groves deeds and assignments covering all property standing in his name pursuant to the contract and powers of attorney theretofore existing;
(2) Hanks would cancel the existing powers of attorney when he completed the transactions required by the termination agreement;
(3) Hanks would execute “any and all other instruments necessary to effectuate the sense of these agreements”;
(4) Groves would pay Hanks the sum of $400,000.00 in full settlement of unpaid salary due Hanks;
(5) Groves would pay Hanks 10% of all profits resulting from the sale of any property in’ Texas standing in the name of Hanks or jointly in the names of Hanks and Groves, which might be received by Groves from any party with whom Hanks was then negotiating for either a sale or lease.

Hanks conveyed the Hidalgo “Valley Lands” and the “Summit Avenue Property” to Groves on June 2, 1971. Groves then entered into exclusive possession of the “Valley Lands”, and thereafter operated the same through his agent Gaudet, a defendant herein, under the name of “Monte Christo Ranch”. Hanks did not formally cancel any of the then existing powers of attorney. Groves paid $400,000.00 to Hanks.

THE SUIT FOR BREACH OF CONTRACT

The action for damages because of breach of contract is based on a refusal by Groves to pay Hanks or Mrs. Hanks 10% of the profits from the sale of the “Summit Avenue Property”, which amounted to $72,-325.29. It was stipulated: 1) Hanks, prior to May 13, 1971, contacted the real estate firm of Ferree & Searcy concerning the sale of certain portions of the “Summit Avenue Property”, and also contacted the real estate firm of Yager & Co. concerning the sale of all of it; 2) In February, 1972, Groves listed the property for sale with Ferree & Searcy, Realtors; 3) because of confusion created by this listing, Ferree & Searcy stopped offering the property at $800,000.00; 4) thereafter, Edward Yager, the President of Yager & Co., contacted a Fort Worth Insurance Company President who referred him to another brokerage house which, in turn, referred him and his associate, Albert Komatsu, to its associate, Century Development Corporation (CDC), who entered into an Option Agreement with Groves on July 31, 1972 to purchase the property for $880,000.00; 5) CDC, however, decided not to go through with the purchase of the property; 6) Harry D. Lane, who had been an agent of CDC, terminated his relationship with CDC, and acquired an assignment of the option from it; 7) Yager, Komatsu and Lane, then, as incor-porators, formed Summit Office Park, Inc., the stock of which was owned ⅛ by each of them; 8) Groves conveyed the “Summit Avenue Property” to Summit Office Park, Inc., by Deed dated March 18, 1973; 9) an escrow agreement was executed on February 21,1973, by Groves, Mrs. Hanks and the Continental National Bank of Fort Worth; 10) a correct copy of the escrow agreement, marked Exhibit 8, was attached to the stipulation.

The copy of aforesaid escrow agreement was introduced in evidence. It provided that a sum of money “equal to ten per cent of the net profits resulting from the sale of any or all of the property” would be deposited in the Continental National Bank of Fort Worth, “to be held by it as Escrow Agent pursuant to the terms of this Agreement”.

The trial court found:

“. . . Following the escrow agreement, Stipulation Exhibit 8, ten per cent of the net profits from the sale, $72,-325.29, was escrowed with Continental National Bank of Fort Worth . Subsequently, this amount, with accrued interest, was paid by that Bank into the registry of the United States District Court for the Northern District of Texas, Fort Worth Division . . . .”
******
“The sale was a sale to ‘parties and their assigns’ with whom HANKS was negotiating directly or through agents under the terms of the dissolution agreement of May 13, 1971, since HANKS was the direct procuring cause, ... of the subsequent sale . . . .”

Groves’ third point of error reads, as follows:

“The trial court erred in holding that under the dissolution contract between BRYAN HANKS and WALLACE GROVES, appellee was entitled to recover a percentage or commission out of the net proceeds from the sale of the Summit Avenue Property in Forth Worth here in question, because such holding is contrary to the undisputed evidence and stipulations.”

The point cannot be sustained. There is no finding or conclusion that Mrs. Hanks was entitled to a “percentage or commission out of net proceeds from the sale of the Summit Avenue Property”, as asserted in the point. A “commission” of 10% out of the “net proceeds” of the sale is different from 10% of the “net profits” of the sale. The findings by the trial court are amply supported by the stipulation, Exhibit 8 thereto, coupled with the depositions of Yager and Komatsu, both of which were introduced into evidence without objection.

It is conclusively established by the record that Hanks, prior to May 13, 1971, set in motion the forces which ultimately brought about the sale of the “Summit Avenue Property” to Summit Office Park, Inc. The line between cause and effect was not broken by the interposition of Summit Office Park, Inc., into the picture. The causal chain is unbroken and runs directly from Hanks to Summit Office Park, Inc. There is no question but that Mrs. Hanks, under the terms of the termination agreement, is entitled to 10% of net profils realized in the sale of the “Summit Avenue Property”. Trinity Gravel Co. v. Cranke, 282 S.W. 798 (Tex.Com.App., 1926); Finlay-Tampico Oil Co. v. Robbins, 246 S.W. 1047 (Tex.Civ.App.—El Paso 1923, no writ); Wright v. Griffith & Griffith, 227 S.W. 1115, 1116 (Tex.Civ.App.—Texarkana 1921, writ dism’d). The net profit was found to be $72,325.29. That finding was not attacked by a point of error. Groves’ third point is overruled.

THE SUIT FOR CONVERSION

With respect to the suit for the conversion of checks, Mrs. Hanks, in her trial petition, alleged, in substance: 1) during the time that Hanks managed the properties for Groves he gave Mrs. Hill a power of attorney, but that the same was cancelled by the termination agreement of May 13, 1971; 2) that Mrs. Hill, the employee of Groves, without the authority of Hanks, endorsed the name of “Bryan Hanks” to certain checks that were made payable to him, and deposited the same to Groves’ accounts in the defendant banks; 3) the total amount of money represented by the cheeks was $107,425.01; 4) the unlawful and unauthorized endorsement of the checks constituted conversion, to her damage in the sum of $107,425.01.

Groves, in addition to pleading the two-year statute of limitation, filed a general denial, and specially pled that “Hanks was never entitled to any of the money represented by such checks”.

The following facts were established by either stipulation or by undisputed evidence, to-wit:

(1) On February 26, 1964, in the furtherance of the business enterprise of Hanks and Groves, Hanks signed a “United States Department of Agriculture, Agricultural Stabilization and Conservation Service (ASCS) Power of Attorney” to Mrs. Hill, who, for the years 1971 and 1972, pursuant to said power of attorney, made application to the ASCS for participation of the “Valley Lands” in the Upland Cotton Set Aside Program;
(2) Money was paid to the participants in the above-mentioned program in accordance with certain allotment formulas;
(3) The power of attorney made in Mrs. Hill’s favor was never revoked by Hanks during his lifetime;
(4) The hereinafter-mentioned checks which were issued by the United States Commodity Credit Corporation (USCCC) for the years 1971 and 1972 were issued pursuant to applications that were signed by Mrs. Hill;
(5) The power of attorney to Mrs. Hill was effectively cancelled by the power of attorney executed by Groves on September 29, 1972 and filed with the ASCS on October 6, 1972, wherein Gaudet was appointed agent for Groves;
(6) Following the execution of a deed by Hanks to Groves on June 2, 1971, Groves then entered into the exclusive possession of the “Valley Lands”, and thereafter operated the same through his agent Gaudet, under the name of “Monte Chris-to Ranch”;
(7) The USCCC issued a check payable to the order of Bryan Hanks in the sum of $39,123.24 for participation in the Upland Cotton Set Aside Program for the year 1971; the check was endorsed “Bryan Hanks” by Mrs. Hill and was deposited in Groves’ “Monte Christo Ranch” account in the Mission Bank on August 16, 1971;
(8) The USCCC 1972 payment for participation of the same properties in the Upland Cotton Set Aside Program was made by check, dated August 3, 1972, in the amount of $36,921.02, payable to the order of “Bryan Hanks”, which was also endorsed “Bryan Hanks” by Mrs. Hill and was deposited by her in Groves’ “Monte Christo Ranch” bank account in Edinburg Bank on August 15, 1972;
(9) Mrs. Hill also endorsed the name of “Bryan Hanks” on a number of other checks, hereinafter referred to as “other checks”, totalling $31,280.19, made payable to Hanks, and deposited them in Groves’ “Monte Christo Ranch” bank accounts ($28,829.06 in the Mission Bank and $2,451.13 in the Edinburg Bank) between June 4, 1971 and October 21, 1971;
(10) All of the “other checks” were issued subsequent to the date of the deed from Hanks to Groves, and were in payment for grain, citrus fruit or cotton harvested from the “Valley Lands” except a check for caliche ($94.50) and a hunting lease ($3,500.00);
(11) In endorsing and depositing all checks, Mrs. Hill was acting within the course and scope of her employment by Groves, and Groves received the benefit of those deposits.

Groves, in his first point, contends that the trial court erred in granting judgment against him and the other appellants for the conversion of all of the checks in question, save and except the USCCC check for $36,921.02, dated August 12, 1972, (the 1972 payment for Groves’ participation in the Upland Cotton Set Aside Program), because actions to recover on all such checks, except the said USCCC check, were barred by the two-year statute of limitations “under the undisputed evidence and stipulations”. This point involves: 1) the USCCC cheek for $39,123.24, deposited on August 16, 1971, for participation by Groves in the 1971 Upland Cotton Set Aside Program, and 2) the “other checks”, totalling $31,280.19.

The action for the alleged conversion of the USCCC check was instituted on September 13,1973, when Mrs. Hanks filed her first amended original petition. The action for the alleged conversion of the “other checks” was instituted on April 28, 1975, when Mrs. Hanks filed her fifth amended original petition, her trial petition.

Tex.Rev.Civ.Stat.Ann. art. 5526 (1958) provides, in part:

“There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
2. Actions for detaining the personal property of another, and for converting such property to one’s own use.”

Tex.Rev.Civ.Stat.Ann. art. 5538 (1958) reads, as follows:

“In case of the death of any person against whom or in whose favor there may be a cause of action, the law of limitation shall cease to run against such cause of action until twelve months after such death, unless an administrator or executor shall have sooner qualified according to law upon such deceased person’s estate; in which case the law of limitation shall only cease to run until such qualification.”

It was also stipulated that Hanks died on December 18,1972, and that Mrs. Hanks “is Independent Executrix of the Estate of Bryan Hanks”. The suit was instituted on August 30, 1973 by Mrs. Hanks who stated that she brought “this suit individually and as independent executrix of the estate of ‘BRYAN HANKS, deceased’ ”.

The death of Hanks did not suspend the running of the statute of limitations. It merely tolled the running of the statute until the date that an executor or administrator of his estate was duly qualified, or until 12 months after his death, whichever was first in time. Under the facts of this case, the statute was tolled from December 18,1972, when Hanks died, until August 30, 1973, when Mrs. Hanks, who, by that date, had already qualified as executrix of Hanks’ estate.

The conversion, if any, of the USCCC check occurred on August 16, 1971, when it was deposited in Groves’ account in the Edinburg Bank. The elapsed time from that date until December 18, 1972, was 16 months and 3 days, and from August 30, 1973 until September 13, 1973, when suit was filed asserting conversion, was 13 days. The total elapsed time from the date of the alleged conversion until suit was filed for conversion, taking into consideration the time that the running of the statute was tolled, was less than two years. Therefore, the suit for the alleged conversion of the USCCC check was not barred by the two-year statute of limitations.

Concerning the action for conversion of the “other checks”, the elapsed time from the deposit of those checks until the death of Hanks and from August 30, 1973 until April 28, 1975, when the fifth amended original petition was filed, which, for the first time, alleged conversion of those checks, totalled more than two years from the date of conversion until suit was filed for the conversion thereof.

Tex.Rev.Civ.Stat.Ann. art. 5539b (1958), in part, provides:

“Whenever any pleading is filed by any party to a suit embracing any cause of action, cross-action, counterclaim, or defense, and at the time of filing such pleading such cause of action, cross-action, counterclaim, or defense is not subject to a plea of limitation, no subsequent amendment or supplement changing any of the facts or grounds of liability or of defense shall be subject to a plea of limitation, provided such amendment or supplement is not wholly based upon and grows out of a new, distinct or different transaction and occurrence. . . . ”

In the present case, the action for conversion of the “other checks” did not grow out of the transaction set out in the original petition, which allegedly constituted conversion of a single USCCC check. Mrs. Hanks, in her fifth amended original petition, in addition to suing for conversion of both USCCC checks, also sued for conversion of the “other checks”, all of which (except the USCCC checks) were issued by different drawers, for different amounts, on different dates, and in payment of different items. The alleged conversion of the “other checks” was based upon different and distinct transactions, and therefore, barred by the applicable limitation statute. Leonard v. Texaco, Inc., 422 S.W.2d 160 (Tex.Sup.1967); Jirovec v. Maxwell, 483 S.W.2d 852, 856-7 (Tex.Civ.App.—Corpus Christi 1972, no writ); Childre v. Childre, 417 S.W.2d 464, 467 (Tex.Civ.App.—San Antonio 1967, no writ). The cause of action for the alleged conversion of the “other checks” was barred by the two-year statute of limitations.

Groves’ first point as to the August, 1971 USCCC check is overruled, but it is sustained as to the “other checks”.

Groves’ second point of error reads, as follows:

“The trial court erred in awarding ap-pellee judgment against each of these appellants on all of the checks in question for the reason that under the undisputed evidence and stipulations, while the checks were made payable to BRYAN HANKS, neither he, his wife nor his estate had any beneficial ownership therein, but same at all times were beneficially owned by WALLACE GROVES, and therefor, there could have been no conversion of same.”

After examining the statement and argument in Groves’ brief with reference to the point, we treat the same as a “no evidence” point, in that it is contended that there is no evidence that Hanks or Mrs. Hanks had any beneficial ownership in the monies represented by the checks.

The stipulations and undisputed evidence which have already been set out in our discussion generally of the suit for conversion are applicable to the disposition of this point. It is not necessary that they be repeated.

It is conclusively established that on June 2,1971, the legal title to the “Valley Lands” was conveyed to Groves by Hanks, and from that day forward Hanks had no title, legal or equitable, to the “Valley Lands”, and was not, at any time after June 2,1971, the operator of the lands, nor was he in possession thereof, nor did he own a beneficial interest therein.

Under the provisions of the applicable regulations of the Department of Agriculture, in order for a person to participate in the Upland Cotton Set Aside Program, and to be paid any money for such participation, that person must be a producer who shares in the crops grown on the land, or in the proceeds of the sale of such crops, in the year in which application for participation was made. Hanks did not meet that requirement. He was neither producer, owner, tenant nor operator of the “Valley Lands” at the time the aforesaid USCCC checks were issued or deposited.

The governmental regulations further provided that when a person who was a producer is succeeded on the farm by another producer, the governmental payments for participation in the program for that particular year shall be divided as the purchaser and seller may agree. There is no evidence that any such agreement was ever made by and between Hanks and Groves. Hanks did not share in the crops or in the proceeds thereof at any time during the business arrangement. Payment for participation in the Upland Cotton Set Aside Program was not compensation to which Hanks was entitled in any capacity.

Under the facts developed, there is no legal basis which will support a finding, conclusion or holding that the checks constituted the personal earnings of Bryan Hanks. The USCCC checks represented payment for overall participation of the “Valley Lands” in a government price support system, and were made payable to Bryan Hanks long after he had conveyed his interest in the “Valley Lands” to Wallace Groves pursuant to the termination agreement of May 13, 1971. The “other checks” were also connected with such lands and were issued after May 13, 1971.

Clearly the parties contemplated that Bryan Hanks, from and after June 2, 1971, no longer had any right, legal or equitable, to monies derived from the property which he had previously conveyed away.

In 1964, Hanks filed with the ASCS a power of attorney, executed by him, that authorized Mrs. Hill to act in connection with all programs of the United States Department of Agriculture that affected the “Valley Lands”. The instrument recited, in part:

“This power of attorney shall remain in full force and effect until written notice of its revocation has been duly served upon the Hidalgo County ASC County Committee, Edinburg, Texas.”

The power of attorney was never revoked or cancelled by Hanks, as required by the termination agreement. The payments which were made in 1971 and 1972 by the USCCC were made pursuant to applications made by Mrs. Hill, and were made by the maker of the checks without written notice of either the termination agreement or of the deed from Hanks to Groves. It is certain that had Hanks seasonably cancelled the said power of attorney and so notified ASCS Committee at Edinburg, Texas, the USCCC would not have issued the checks in the name of “Bryan Hanks”.

The “other checks” were issued in payment for products harvested from the “Valley Lands” by Groves subsequent to June 2, 1971, the date of the deed from Hanks to Groves, except for one check for caliche and one check for a hunting lease, which were also issued after June 2, 1971. The record supports the inference that the caliche was sold off of the “Valley Lands” and that the hunting lease covered those lands. There is no evidence that will support any inference to the contrary.

There were no reservations to Hanks in the deed to Groves. Therefore, all growing crops and future revenues from the “Valley Lands” were conveyed to Groves, effective June 2, 1971. Ray v. Foutch, 50 S.W.2d 380 (Tex.Civ.App.—Amarillo 1932, no writ); Armstrong v. Gifford, 196 S.W. 723 (Tex.Civ.App.—San Antonio 1917, no writ); 17 Tex.Jur.2d, Crops, § 12.

Conversion is the unlawful exercise of dominion and control over personal property to the exclusion or exercise of those rights by the owner, Cantrell v. Broadnax, 306 S.W.2d 429, 433 (Tex.Civ.App.—Dallas 1957, no writ).

In order for Mrs. Hanks to recover in her suit for conversion of the checks, it was necessary that she establish a right of property in the cheeks. 89 C.J.S. Trover & Conversion § 72-73; 14 Tex.Jur.2d, Conversion § 79. This she did not do.

Had the checks been actually delivered to Hanks, he would have been duty-bound to deliver either the checks themselves or the proceeds thereof (in the event he negotiated them) to Groves, since the termination agreement clearly shows the intent and purpose to terminate their previous business arrangement in its entirety and to vest the legal title to all properties therein described in Groves absolutely. Hanks’ promise “to execute all other instruments necessary to effectuate the sense of these agreements” required that Hanks, had he received the checks, endorse the same over to Groves or account to Groves for the monies represented thereby.

The damages in an action for conversion are measured by the sum of money necessary to compensate the plaintiff for all actual losses or injuries sustained as a natural and proximate result of the defendant’s wrong. 89 C.J.S. Trover and Conversion § 162 (1955).

The undisputed facts of this case show that neither Hanks nor Mrs. Hanks suffered any actual monetary loss as a result of the unauthorized endorsement of the checks and their subsequent deposit in Groves’ bank account, to the exclusion of Hanks. Neither Hanks nor Mrs. Hanks had an interest, general or special, in the funds represented by the checks and never had the right to the possession of those funds. At best, Hanks had only a legal right to the possession of the checks themselves, occasioned solely by the fact that he was named payee therein. That right is different from a legal right to the possession of the funds represented by such checks. That right did not, of itself and itself alone, furnish a legal basis for the award of $107,425.01 as damages for the conversion of those checks. Groves, being the beneficial owner of the monies represented by the check, was the only person entitled thereto. To award Mrs. Hanks such a recovery that is grounded solely on the technicality that Hanks had legal title to the checks because he was the payee named therein would amount to a windfall to Mrs. Hanks that is manifestly unjust and without regard to the beneficial ownership of the monies represented by the checks.

Mrs. Hanks did not allege or prove that she was entitled to special damages as a result of the conversion. There is no pleading or proof that she suffered a loss of profits as a result of the endorsements and deposits to Groves’ accounts, nor that the loss of use of the monies resulting thereby was in any way harmful to her. 14 Tex. Jr.2d Conversion §§ 31, 32 (1960). The cause of action for conversion, if any, of the checks, at best, would be for a technical conversion, and the amount of money as damages to which Mrs. Hanks, under this record, would be entitled to, would be nominal. 89 C.J.S. Trover and Conversion § 161.

It is established by the undisputed evidence and stipulations that the beneficial ownership of the checks was in Groves at all times. Groves’ second point is sustained.

THE CROSS ACTION

By a trial amendment that was filed on July 10, 1975, Groves filed a cross action against Mrs. Hanks and alleged that she was indebted to him in the sum of $6,302.75, being the money on deposit “in the Continental National Bank of Fort Worth, Texas, bank account styled Bryan Hanks, Agent, Account No. 021-001-3, which said cross-defendant has in her possession”. The transcript does not contain any pleadings of Mrs. Hanks with respect to the cross action. However, she states in her brief that she “pleaded a general denial and the release clause of the dissolution contract” as defenses to the cross action. Groves, in his reply brief, does not dispute that statement. We, therefore, consider the defenses.

The “release clause” pled by Mrs. Hanks provided:

“It is mutually agreed by and between the parties that each shall and each does hereby release the other from any and all claims, causes of action and liabilities that have arisen or may hereafter arise in the future, whether known or unknown, growing out of or in any way incident to the relations of principal and agent heretofore existing between them over the period of years commencing with the execution of the Contract, it being intended by the parties that this agreement and the consideration paid and action taken hereunder shall be in full and final settlement of all accounts as between themselves.”

Groves’ fourth point of error reads, as follows:

“The trial court erred in failing to award to appellant WALLACE GROVES the agency bank account identified in (Stipulation 25, T.R. 60) for the reason that the undisputed evidence and stipulations discloses that BRYAN HANKS was holding said account as agent for WALLACE GROVES, and never had any actual ownership of such account, but that at all time it was beneficially owned by appellant, WALLACE GROVES.”

An examination of the Statement and Argument under the point reveals that the thrust of the point is that there is no evidence to support either the finding or the conclusion by the trial court that “Wallace Groves is precluded by the contract of May 13,1971 from asserting his $6,302.73 claim”, for the reasons set out in the point itself. We so consider the point.

There is no evidence outside of the stipulations that pertains in any way to either the cross action or the defenses thereto. The only stipulations which bear on the cross action are two stipulations (25 and 32) and the accompanying Exhibit 24 to Stipulation 32 which was introduced in evidence. The stipulations read, as follows:

“25. At the time of the death of Bryan Hanks on the 18th day of December, 1972, there existed a bank account in the Continental National Bank of Fort Worth, Texas, styled ‘Bryan Hanks, agent’, Account No. 021-001-3 which had a balance of $6,302.73.”
******
“32. Commencing prior to January 30, 1970, Bryan Hanks maintained an account in the Continental National Bank of Fort Worth, Texas, in the name of ‘Bryan Hanks Agent.’ A copy of the bank statements pertaining to such account, covering the time from January 30, 1970, to April 30, 1973, is attached hereto as Exhibit 24. All monies deposited in said account as reflected on said bank statements during such period, were from rents and other revenues, derived from the properties involved in the business transactions between Bryan Hanks and Wallace Groves described in Paragraph 1 above, or else were derived as an incident to the business transactions and agreement existing by and between them. Further, all the sums expended from said account were expended in the necessary furtherance of said business relationship between the parties which had existed between the parties. After the death of Bryan Hanks, Plaintiff, Virginia Margaret Wooding Hanks, withdrew said funds from the said bank without the consent of Wallace Groves and continues to hold and withhold said sum from Wallace Groves.”

The several bank statements, which made up Exhibit 24, showed: 1) that from January 30,1970 until October 2,1972 numerous deposits were made to the account and a number of checks were written thereon; 2) on October 2, 1972, the balance in the account was $6,302.75; 3) no deposits or withdrawals were made between October 2, 1972 and April 30,1973, the date of the last bank statement contained in the Exhibit. The record makes no mention of the date when Mrs. Hanks withdrew the $6,302.75.

The “agency account” was in existence at the time the termination agreement was executed by Hanks and Groves. The account was not mentioned therein. The termination agreement expressly recognized that under the terms of the previously existing contract, Hanks was to act as agent for Groves in the “acquisition, operation and sale of properties” acquired by them. The stipulations show that all monies deposited in the “agency account” were derived from the “properties involved in the business transactions between Bryan Hanks and Wallace Groves”, that all disbursements from the account “were expended in the necessary furtherance of said business relationship”, and that Mrs. Hanks withdrew the balance after Hanks’ death and without the consent of Groves. No reason is given for the withdrawal.

The “mutual release” clause, above-quoted, which Mrs. Hanks says precludes Groves from asserting any claim to the $6,302.75 balance, concerns only claims, known or unknown, which Hanks or Groves had against the other “growing out of or in any way incident to the relations of principal and agent heretofore existing between them”. There is no evidence that the money on deposit in the agency account was ever claimed by Hanks for any reason.

The stipulations and Exhibit 24, when considered together, tend to negate the findings and conclusions of the trial court concerning the cross action, and will not support such findings and conclusions. Therefore, Groves’ fourth point is sustained.

As a general rule, when a “no evidence” point is sustained, the appellate court will reverse and render the judgment of the trial court. However, it is the prerogative of the appellate court to reverse and remand the cause where it is believed that the case has not been fully developed and the ends of justice would be better served by reversing and remanding the cause for a new trial rather than to reverse and render it. That is the situation here. The cross action portion of the suit was never fully developed, and we feel that in the interest of justice, the judgment of the trial court which denied Groves any relief on his cross action should be reversed, and the cross action remanded to the trial court for a new trial. See Uhlhorn v. Reid, 398 S.W.2d 169, 176 (Tex.Civ.App.—San Antonio 1965, writ ref’d n.r.e.); Parker v. Schuler Corporation, 379 S.W.2d 421 (Tex.Civ.App.—Eastland 1964, writ dism’d); Kansas City Southern Railroad Company v. Guillory, 376 S.W.2d 72, 77 (Tex.Civ.App.—Beaumont, 1964, writ ref’d n.r.e.).

Moreover, a Court of Civil Appeals is authorized by Rule 434, T.R.C.P., to reverse and remand a cause for a new trial where there is a matter of fact to be obtained, the damages to be assessed are uncertain, or the matter to be decreed is uncertain. Uncertainty enshrouds Groves’ cross action and the decree rendered thereon. Since the error of the trial court affects only a part of the matters in controversy and that such part is clearly separable from the actions brought by Mrs. Hanks, and a severance would not be unfair to any party, the judgment which was rendered on the cross action will be reversed, and a new trial ordered as to the cross action.

DISPOSITION OF THE APPEAL

The judgment insofar as it decreed that Mrs. Hanks “is entitled to the fund including interest, deposited in the Registry of the United States District Court for the Northern District of Texas, Fort Worth Division, in Cause No. CA-4-2403” is affirmed.

The judgment insofar as it decreed that Mrs. Hanks have and recover from Groves, Mrs. Hill, Gaudet and the Edinburg Bank the sum of $39,372.15, together with interest thereon as provided in the judgment, and that the Edinburg Bank have judgment over and against Groves, Mrs. Hill and Gau-det for said amount of money is reversed, and judgment is here rendered that Mrs. Hanks take nothing against those defendants, and that the Bank take nothing against Groves, Hill and Gaudet.

The judgment insofar as it decreed that Mrs. Hanks have and recover from Groves, Mrs. Hill, Gaudet and the Mission Bank the sum of $68,052.86, together with interest thereon as provided in the judgment, and that the Mission Bank have judgment over and against Groves, Mrs. Hill and Gaudet for said amount of money is reversed, and judgment is here rendered that Mrs. Hanks take nothing against those defendants, and that the Bank take nothing against Groves, Hill and Gaudet.

The cross action is severed from the actions brought by Mrs. Hanks. The judgment insofar as it denied Groves any relief on his cross action is reversed, and the cross action is remanded to the trial court for a new trial.

The costs of this appeal are taxed 50% to Groves and the other defendants (appellants), and 50% to Mrs. Hanks, the plaintiff (appellee).

AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND REVERSED AND REMANDED IN PART.


source: Caselaw Access Project

author: PRESLAR, Chief Justice.

license: Public Domain

text:
    Fred POTEET, Jr., et al., Appellants, v. WINTER GARDEN PRODUCTION CREDIT ASSOCIATION, Appellee.
    No. 6521.
    Court of Civil Appeals of Texas, El Paso.
    Jan. 5, 1977.
    Rehearing Denied Feb. 2, 1977.

      Haley, Fulbright, Winniford, Bice & Davis, W. C. Haley, Waco, for appellants.
    Jay R. Sorrell, Pearsall, for appellee.
   OPINION

PRESLAR, Chief Justice.

This case involves a contest between one who claims a security interest in after-acquired property, and one who claims ownership of the property because the debtor, as his agent, purchased it for him. In issue is the question of whether the debtor acquired an interest in the 254 cattle to which the security interest would attach. The trial Court found for the holder of the security interest. We affirm.

The debtor, Pat Wootton, operated a cattle feed lot. He fed out cattle for himself and others. Appellant, Fred Poteet, Jr., was one of the others in that cattle owned by him were fed out or fattened by Pat Wootton. About one-third of the cattle that passed through Wootton’s feed lot were owned by him, and the other two-thirds by numerous other people in the same arrangement as Fred Poteet, Jr. This controversy arose when Pat Wootton’s feed lot was placed in receivership with some 4,000 cattle in his feed lot pens at the time. Fred Poteet claims ownership of 254 cattle located in pens numbered 7 and 8, while Appellee, Winter Garden Production Credit Association, claims a security interest in those cattle or the proceeds thereof. At all times pertinent, Appellee had on file in the county of Wootton’s operations a financing statement. Among other things, its security agreement enumerated certain cattle and then provided “and all livestock hereafter acquired by Debtor, and all progeny, thereof, and proceeds thereof.” It is under this security agreement that they claim a lien on the 254 cattle.

Appellant’s basic position is that these were always Poteet’s cattle and Wootton never had any interest in them. The arrangement was that Wootton would find cattle and buy them, pay for them himself, put them in a pen and brand them with Appellant’s brand and notify or invoice Appellant and be reimbursed by Appellant for the purchase price. Payment to Wootton was by draft of Poteet on Waco Production Credit Association. He would then feed out or fatten the cattle for some 120 days, sell them and remit the proceeds to Poteet. His only charge for this operation was the custom feeding, that is, his charge for feeding out the cattle. The evidence is that this was a customary procedure used by feed lot operators engaged in custom feeding for others. Waco Production Credit Association is a party to the suit in that it advanced money to Fred Poteet to purchase cattle and pay for their feeding, and it had a security agreement covering cattle owned by Appellant Poteet.

The rights of the parties are governed by the provisions of the Texas Business and Commerce Code Annotated, hereinafter referred to as the “Code.” Section 9.204 provides that a security interest cannot attach until (1) there is agreement that it attach, (2) value is given, and (3) the debtor has rights in the collateral, but that it attaches as soon as all those events have occurred, unless explicit agreements postpone the time of attachment. Clark v. Vaughn, 504 S.W.2d 550 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.); In re Samuels & Co., Inc., 526 F.2d 1238 (5th Cir. 1976, on rehearing en banc), cert. denied, -U.S. - , 97 S.Ct. 98, 50 L.Ed.2d 99 (1976) (No. 75-1876), prior decision 483 F.2d 557, reversed and remanded by the Supreme Court, 416 U.S. 100, 94 S.Ct. 1626, 40 L.Ed.2d 79.

The controlling question here is whether the debtor Wootton ever acquired any interest or rights in the cattle to which the security interest could attach. Requirement number 1 above is satisfied by the agreement which we have mentioned. Requirement number 2, value, is met by Woot-ton’s indebtedness to Appellee at the time involved; this pre-existing indebtedness constituted value under the Code, Sec. 1.201(44); In re Samuels & Co., Inc., supra. The knotty question as to whether Wootton ever acquired any interest in the 254 cattle is determined on the basis that it boiled down to a fact issue presumably found in favor of Appellee by the trial Court; it must be upheld by us in the procedure in which this case comes for review.

This case was tried to the Court without a jury, and there are no findings of fact and conclusions of law; none were requested and none are filed. In the absence of findings of fact and conclusions of law, the judgment of the trial Court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.1968). Also, it will be assumed by the appellate Court that every disputed fact issue that was involved in the case was found by the trial Court in such a way as to support the judgment rendered. Construction and General Labor Union, Local No. 688 v. Stephenson, 148 Tex. 434, 225 S.W.2d 958 (1950); 4 McDonald, Texas Civil Practice, Presumptions on Appeal, Sec. 16.10; O’Neil v. Mack Trucks, Inc., 533 S.W.2d 832 (Tex.Civ.App.—El Paso 1975, rev’d on other grounds 542 S.W.2d 112 (1976).

The facts surrounding the purchase of these cattle by Wootton present conflicting evidence as to whether he first bought them for himself. There is evidence that he paid for some cattle by his own personal check and some by draft drawn on the Appellee, and there is evidence that some were part of a larger group taken from one of his pastures and placed in pen 8. Appellants correctly say that they cannot be traced. Certainly, there is no proof that these specific cattle were intended by Woot-ton to be Poteet’s at the time they were purchased. If they were not so bought, then title was at one time in Wootton and the security interest would attach. This case presents a stronger set of facts than the above cited case of In re Samuels & Co., Inc., supra. There, a debtor operating under a security agreement bought cattle and paid for them with a worthless check. It was held that the interest of the seller in the cattle, which were delivered to the buyer, was subordinate to the interest of the holder of the perfected security interest; that the buyer’s rights in the property, however marginal, were sufficient to allow attachment of a lien. Appellant relies on the case of National Livestock Credit Corporation v. First State Bank of Harrah, an Oklahoma case found at 503 P.2d 1283 (Ct. App. 1972). There, the Court found as a fact that the cattle purchased by the agent were for the principal. In the case before us, we have a presumed opposite finding.

By point of error No. 2, Appellants contend that Appellee has waived any security interest in the cattle involved. Here, again, it must be presumed that the trial Court in support of its judgment found against the Appellant on the facts which would constitute waiver. There being evidence of probative force to support that finding, it is binding on this Court under the authorities earlier noted.

All assignments of error have been considered and all are overruled. The judgment of the trial Court is affirmed.


author: DIES, Chief Justice.

text:
    Don McLENDON, Appellant, v. TODD-AO-CORPORATION, Appellee.
    No. 7907.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 6, 1977.
    Rehearing Denied Feb. 17, 1977.

      Paul R. Lawrence, Houston, for appellant.
    Hugh Corrigan, IV, Dallas, for appellee.
   DIES, Chief Justice.

Plaintiff below Todd-AO Corporation obtained a California judgment in March 1975 against defendant below in the amount of $3,604.25 plus $357 attorney fees and $25 court costs. We shall speak of the parties as they appeared in the trial court.

Plaintiff filed suit to enforce the California judgment in Dallas County, Texas. Thereafter the cause was transferred on a plea of privilege to Harris County. After plaintiff’s Texas suit was filed, defendant voluntarily paid the $3,604.25 debt which had been ordered paid by the California court. Plaintiff then filed motion for summary judgment (subject to reduction for the sum paid) as to the entire California judgment, and same was granted. Defendant appeals from the trial court’s action in granting the motion on the ground that the California judgment is void for want of jurisdiction.

U.S.Const., Art. IV, Sec. 1 provides that each state shall give full faith and credit to the public acts, records, and judicial proceedings of every other state. The manner in which such judicial proceedings may be proved is set out in 28 U.S.C.A. § 1738 (1966). Under § 1738 where a party sued upon a foreign judgment in Texas and introduces a properly authenticated copy thereof he has established a prima facie case. Thereafter, the burden of attacking the judgment shifts to the defendant to bring forth reasons, e. g., such as lack of in personam jurisdiction, why that judgment should not be given full faith and credit. Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1944); Country Clubs, Inc. v. Ward, 461 S.W.2d 651, 655 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.); Hamilton v. Newbury, 412 S.W.2d 801, 805 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.).

The case before us, however, bears little resemblance to the ordinary case of attempted enforcement and concomitant challenge of a sister state’s judgment. Here the defendant has already paid the greater part of the judgment sought to be enforced and yet still vigorously challenges the power of the court which levied the judgment against him.

We are of the opinion that defendant’s action in voluntarily paying the California judgment before he was required so to do was, in effect, an admission of that court’s power as to his person. Moreover, we hold that he has by his actions waived his right of appeal. As was said in Elkins v. Vincik, 437 S.W.2d 49, 51-52 (Tex.Civ.App.—Austin 1969, no writ):

“A Judgment that has been performed and satisfied is functus officio. 34 Tex. Jur.2d 750, Judgments, Sections 644 and 646. This Court observed in Perez v. George, 367 S.W.2d 940 (Tex.Civ.App.—Austin 1963, writ ref. n. r. e.), ‘If the judgment ha[s] been satisfied and extinguished, there was no basis for appellees’ writ for possession and the writ was invalid.’ Similarly, the Judgment here has been satisfied and extinguished, and there is no basis for Appellant’s appeal.”

The Austin Court then cited with approval the rule set out as follows in 3 Tex.Jur.2d §§ 193 and 194, pp. 594-596 (1974):

“When a judgment debtor voluntarily pays or satisfies a judgment rendered against him, he waives his right to appeal, and an appeal taken by him will be dismissed.
“A party who voluntarily accepts or secures the benefit of a judgment or decree thereby waives all right to prosecute an appeal. In other words, a party may not treat a judgment as both right and wrong, and avail himself of the advantages of such position.” (Emphasis added.)

See also Norris Implement Co. v. Ogden, 147 S.W. 279, 279-280 (Tex.Civ.App.—Amarillo 1912, no writ).

Defendant having waived his right of appeal, the order granting summary judgment is hereby affirmed.

AFFIRMED.

STEPHENSON, J., not participating.


author: OSBORN, Justice.

text:
    J. A. RODRIGUEZ et al., Appellants, v. Mike DIPP, Sr., Appellee.
    No. 6557.
    Court of Civil Appeals of Texas, El Paso.
    Jan. 12, 1977.
    Rehearing Denied Feb. 9, 1977.

      Gerald B. Shifrin, Pearson, Oden & Caballero, Ray Pearson, El Paso, for appellants.
    Calhoun, Morton, Deason & Preslar, Ronald R. Calhoun, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This is a suit for damages by a landowner against the makers of a promissory note in a case in which the landowner subordinated his title to the owner of the note who foreclosed upon default by the makers of such note. The trial Court awarded damages based upon a jury finding as to the market value of the land at the time of foreclosure. We reverse and render.

By a Lease Agreement made on November 16, 1972, Mike Dipp, Sr., the owner of 2.25 acres of land in the City of El Paso, leased such unimproved property to six medical doctors, the Appellants herein, for a term of twenty-five years for purposes of building a medical clinic and commercial building thereon. The lessees were given an option to buy the property during the first ten years of the lease. The lease contained a “Subordination Agreement” whereby lessor agreed to subordinate his interest in the property in favor of the lending institution which provided construction financing for the proposed building. The lease provided in lieu of other remedies that if lessees should default in their lease obligation, the lessor may elect to terminate the lease and obtain possession of the premises, or expend the sum necessary to correct the breach and hold lessees liable for such amount plus interest. While the lease requires lessees to pay monthly rent, taxes, and utilities, there is no provision with regard to their having a contractual obligation to the lessor concerning any obligation lessees undertake in having a building constructed on the leased premises.

On April 5, 1973, the six lessees and the wives of those who were married executed a promissory note for $900,000.00 to The State National Bank of El Paso for purposes of obtaining interim financing to construct a building on the leased premises. At the same time, a deed of trust covering the leased land was executed to secure payment of the note, such mortgage being signed by the makers of the note and Mike Dipp, Sr. When the note became due on December 15, 1973, the interest was paid and the note was renewed and extended to March 15, 1974, with the rate of interest increased to ten percent. Mike Dipp, Sr., did not sign the “Extension Agreement.” The note was not paid according to the Extension Agreement, and on July 2, 1974, there was a foreclosure under the deed of trust.

On July 19, 1974, counsel for Mike Dipp, Sr., wrote to the bank, the purchaser at the foreclosure sale, concerning the Extension Agreement which Mr. Dipp had not signed. On July 26, 1974, Mr. Dipp signed a letter, identified in the record as Plaintiffs Exhibit 8, to confirm and agree to the terms of the Extension Agreement. At that time, the bank paid him $40,000.00. In October, when the bank was contracting to sell the property, Mr. Dipp executed a warranty deed without payment of any new consideration. The attorney for the bank testified concerning these events as follows:

“Q On July the 26th, the time you paid this $40,000 to Dipp, it was when he agreed to give you the warranty deed, isn’t that correct?
“A He agreed to sign the letter that was produced a minute ago and also to give us the deed when we asked for it.
* * * * * *
“Q The bank paid Mr. Dipp $40,000 for the signature on the original of this document, Plaintiff’s Exhibit 8?
“A That plus the execution of the warranty deed.
“Q The deed wasn’t executed for some two months, wasn’t it?
“A That’s right.”

Mr. Dipp testified that he purchased the property covered by the lease in 1971 for approximately $156,000.00. Prior to the foreclosure sale, he received $55,000.00 in lease payments, and with the $40,000.00 from the bank, he actually had about $61,-000.00 in the property. The Lease Agreement called for total rents of $780,000.00 over a period of twenty-five years, and the option to purchase was for $275,000.00. A real estate broker testified that the market value of the land without improvements at the time of foreclosure was $3.00 to $3.50 per square foot, or between $294,000.00 and $343,000.00.

The Court only submitted one issue to the jury, and they found the market value of the land to be $191,000.00, which with prejudgment interest was the amount of the judgment for Mr. Dipp. The Appellee requested issues as to whether Appellants (1) agreed to pay the loan to the bank; (2) failed to make the payments on the loan to the bank; and (3) whether such failure was the cause of the foreclosure. These issues were refused by the trial Court because they did not raise any controverted fact issue. Appellants present eleven points of error, four of which relate to the action of the trial Court in overruling a motion for a directed verdict. These four points may not be considered. Appellants presented their motion for directed verdict when the Plaintiff rested. After the motion was overruled, Appellants presented their evidence and then rested their case and both sides closed. No further motion was presented to or acted on by the trial Court. Thus, the grounds of the motion for directed verdict were waived, and they cannot be considered. Horizon Properties Corporation v. Martinez, 513 S.W.2d 264 (Tex.Civ.App.—El Paso 1974, writ ref’d n. r. e.); Shoppers World v. Villarreal, 518 S.W.2d 913 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); 3 McDonald, Texas Civil Practice, Sec. 11.26 (1970).

Appellants contend in Point of Error No. VI that the trial Court erred in overruling their motion for judgment non obstante veredicto because their failure to pay their note at the bank did not constitute a tort and could not form the basis of any liability to Appellee. The Appellee has acknowledged that he waived any theory of recovery in contract and has elected to proceed on a tort theory.

The general rule is that a mere breach of a contractual duty does not constitute a tort. 86 C.J.S. Torts § 2; Prosser, Torts, 935 (4th ed. 1971). In House v. Houston Waterworks Co., 88 Tex. 233, 31 S.W. 179 (1895), the Court noted that as a general rule, no person can sue upon a contract, except he may be a party to or in privity with it. In that case, where recovery was sought on a tort theory for breach of a contract to furnish water to the City of Houston, the Court stated the applicable rule as follows:

“ * * * One who has a right of action upon a contract may sometimes sue either on the contract as such or in tort for the breach of it. But the right of a person not privy to the contract rests upon a different rule. The correct rule of law as to the right of a party to sue as in tort for the breach of a contract is thus well expressed in Shearman & Redfield on Negligence (section 116): ‘Negligence which consists merely in the breach of a contract will not afford a ground of action by any one who is not a party to the contract, nor a person for whose benefit the contract was avowedly made. * * The true question always is, has the defendant committed a breach of duty apart from the contract. If he has only committed a breach of the contract, he is liable only to those with whom he has contracted; but, if he has committed a breach of duty, he is not protected by setting up a contract in respect to the same matter with another. * *

Of course, in this case, Appellants did not breach any contractual duty with Appellee when they defaulted on the note, and the Lease Agreement contained no contractual obligation to pay the subsequently signed note.

In reply to the Appellants’ sixth point, Appellee initially contends he is entitled to recover on the theory of conversion. This he cannot do. Conversion is a cause of action related to the wrongful possession of chattels and does not apply to realty. Pros-ser, Torts, Sec. 15 (4th ed. 1971); 1 Restatement (Second) of Torts, Sec. 222A (1965).

Appellee further contends he is entitled to recover on the theory of interference with contractual relations. He relies upon Herider Farms-El Paso, Inc. v. Criswell, 519 S.W.2d 473 (Tex.Civ.App.—El Paso, 1975, writ ref’d n. r. e.), and Tippett v. Hart, 497 S.W.2d 606 (Tex.Civ.App.—Amarillo), writ ref’d n. r. e. per curiam, 501 S.W.2d 874 (Tex.1973).

In the Criswell case, the defendant, who had a fiduciary relationship with the plaintiff, apparently caused a lease agreement to be terminated and induced employees to change jobs. Strangely enough, the lease which was terminated was with Mike Dipp. In that case, the evidence indicated intentional conduct upon the part of the defendant to cause the lease to be terminated, and so that he might take over the premises for his own business operations. Such conduct was calculated to both injure the plaintiff and benefit the defendant and cause a breach of a fiduciary relationship.

In Tippett v. Hart, supra, the trial Court found that the defendant intentionally opened a gate and allowed his cattle to graze on plaintiff’s pasture, knowing that such conduct was prohibited by plaintiff’s agreement with the Department of Agriculture. This conduct was calculated to both injure the plaintiff and benefit the defendant, and was in violation of a known contractual obligation not to graze livestock.

In the present case, the Appellants were unable to pay a note and defaulted. There was no intentional act designed to interfere with any contractual obligation of the Appellee, and certainly, such conduct was not to the Appellants’ benefit. Such a breach of contract by Appellants, even if it had been with the Plaintiff, would not give rise to a tort for which Appellee could recover damages. Bartsas Realty, Inc. v. Nash, 81 Nev. 325, 402 P.2d 650 (1965). In that case, the Court said:

“The three theories for relief are ‘tor-tious interference’ by the defendants with the oral agreement of the plaintiff and defendants, breach of the oral agreement, and fraud. Of course the first theory, that of tortious interference with the oral agreement is wholly unsound, for the defendants’ breach of their own contract with the plaintiff is not a tort. [Cases sited] * * * Accordingly, that theory for relief was properly dismissed. * * * >>

While Appellee could have required indemnity from the Appellants in order to agree to subrogate his title to the construction lien, he did not do so and does not now claim any contractual right of recovery.

Recovery under any theory of tort would require a breach of some duty imposed by law. The general rule is well summarized in Bowman v. Goldsmith Bros. Co., 109 N.E.2d 556 (Ohio App. 1952), where the Court stated:

“ * * * when the only relation between the parties is contractual, the liability of one to the other, in an action of tort, must arise out of some positive duty which the law imposes because of the relationship or because of the negligent manner in which some acts which the contract provides for is done; and the mere omission to perform a contract obligation is never a tort unless the omission is also the omission to perform a legal duty. In other words, an action of tort for negligence cannot be maintained unless the defendant’s conduct constituted the breach of a duty imposed by law, apart from it being a breach of an obligation created by agreement of the parties, either express or implied.”

The same general rule is stated very simply in Council v. Dickerson’s, Inc., 233 N.C. 472, 64 S.E.2d 551 (1951), where the Court said:

“ * * * An omission to perform a contract obligation is never a tort, however, unless that omission is also the omission of a legal duty. * * * ”

Clearly, failure to pay a note when due does not constitute the breach of such a legal duty as will give rise to a tort, and such a failure to pay is not negligence upon the part of the maker of the note. In Tuttle v. George H. Gilbert Manuf’g Co., 145 Mass. 169, 13 N.E. 465 (1887), the Court said:

“ * * * The action of tort has for its foundation the negligence of the defendant, and this means more than a mere breach of a promise. Otherwise the failure to meet a note or any other promise to pay money, would sustain a suit in tort for negligence, and thus the promisor be made liable for all the consequential damages arising from such failure. As a general rule, there must be some active negligence or misfeasance to support tort. There must be some breach of duty distinct from breach of contract.”

That rule was followed in Pitts v. Southwestern Sales Corporation, 179 Okl. 274, 65 P.2d 184 (1936); Cooper v. Roose, 151 Ohio St. 316, 85 N.E.2d 545 (1949). Also see Uzarski v. Union Nat. Bank, Carnegie, 152 Pa.Super. 433, 33 A.2d 459 (1943), where the Court noted that “ * * * ordinarily the mere refusal to pay money due under a contract does not amount to a tort.” Certainly, the issue of negligence raises a question of duty, and in every instance, before negligence can be predicated on a given act, back of the act must be sought and found a duty to the individual complaining. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928); 59 A.L.R. 1253; Rosenbaum v. Branster Realty Corporation, 276 App.Div. 167, 93 N.Y.S.2d 209 (1949); Shubitz v. Consolidated Edison Company of New York, 59 Misc.2d 732, 301 N.Y.S.2d 926 (1969). Even if the execution of a note should be held to raise a duty in favor of one who has subrogated his title, it would make no difference in this case because counsel for the Appellants has readily acknowledged during oral argument that negligence was not established as a matter of law, and since no issues were requested on such a theory of recovery, negligence could not form the basis of any judgment against these Appellants.

We conclude that the Appellee did not establish as a matter of law a cause of action for interference with a contractual relationship. Since no special issues were submitted to the jury to establish a cause of action and none was established as a matter of law, Appellants were entitled to have their motion for judgment non obstante veredicto granted. We sustain Appellants’ Point of Error No. VI. It is not necessary for us to pass on the other points of error.

The judgment of the trial Court is reversed and judgment is rendered that Ap-pellee be denied all relief from the Appellants.

ON MOTION FOR REHEARING

Appellee has filed a motion for rehearing urging that the case should be remanded for a new trial rather than having judgment rendered for Appellants. Appellants have filed a reply to contest the motion for rehearing.

First, Appellee urges that the trial Court erred in excluding certain testimony concerning funds available to the Appellants which were not used to make payments on their note to the bank. We find no error in the trial Court’s ruling, but in any event, Appellee readily admits that the matter was not preserved by a cross-point of error. This issue may not be raised for the first time on motion for rehearing. Lafferty v. A. E. M. Developers and Builders Company, 483 S.W.2d 279 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.); Stanfield v. Butler, 475 S.W.2d 838 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.).

Appellee also urges that a take nothing judgment results in an unjust enrichment for the Appellants. Again, this is an issue raised for the first time on motion for rehearing. There is no pleading in the trial Court on a theory of unjust enrichment. No special issue was requested on such a theory of recovery, even though the case was fully developed in the trial Court. No contention was made in the original briefs that the case had been tried on the wrong theory. A remand can only result in another “bite at the apple” on a theory which was waived when it was neither pled nor submitted to the jury in the trial of the case. In such instances, justice does not require a remand. Owen v. Brown, 447 S.W.2d 883 (Tex.1969).

It is also urged that we erred in determining the amount of money Mr. Dipp had in the property which was foreclosed. We used the figures reflected in his testimony. But in any event, without establishing a ground of recovery, the amount of the loss is immaterial.

We have carefully considered the Appel-lee’s motion for rehearing, and it is overruled.

The Appellants, in their reply to the motion for rehearing, correctly point out that we were in error in our original opinion in holding that their motion for instructed verdict had not been re-urged at the conclusion of all of the evidence. The supplemental statement of facts does reflect that the motion was re-urged and overruled by the trial Court after both sides closed their case. Therefore, the Appellants’ Points of Error Nos. V and VII, which contend that the trial Court erred in failing to grant their motion for directed verdict because of the lack of pleadings and evidence to support a tort theory of recovery, should have been and are sustained.


author: KLINGEMAN, Justice.

text:
    Ruby Lee HART, Appellant, v. INTERNATIONAL TELEPHONE & TELEGRAPH CORP. also known as I.T.T., d/b/a Building and Service Company of Texas, Appellee.
    No. 15680.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 12, 1977.
    Rehearing Denied Feb. 2, 1977.

      Sam C. Bashara, San Antonio, for appellant.
    Stephen Lang, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a suit by Ruby Lee Hart against International Telephone and Telegraph Corporation for commissions under a verbal contract for work performed by Ruby Lee Hart during the year 1972. Defendant filed an answer which included a plea that plaintiff’s cause of action was barred by the statute of limitations. Defendant also filed a counter-claim for an alleged breach of a covenant not to compete which was contained in a previous written contract, but this counter-claim was severed. Trial was to a jury, but after the completion of plaintiff’s evidence, the trial court granted an instructed verdict that plaintiff take nothing from defendant.

Plaintiff’s only point of error is that the trial court erred in granting an instructed verdict in favor of defendant.

The only question involved in this appeal is one of limitations. Plaintiff concedes that the two-year statute of limitations applies since the contract relied on as a basis for recovery is an oral contract.

Plaintiff’s original contract of employment with defendant was a written contract dated January 2, 1970, which contract was for a period of one year (1970). Her employment thereafter was on a year-to-year basis under an oral agreement which was basically a one-year extension of the terms and provisions of the original base contract. As compensation for her work, plaintiff was to receive commissions, based in part on gross profits of sales by her to her own customers and in part on net profits for sales by her to customers of Warren Supply Company, a division of defendant. Under the agreement, plaintiff was to receive a monthly advance of $550.00, which was to be applied against her commissions, and an automobile allowance. The commissions in excess of her advancements were to be paid quarterly, and a quarterly statement of commissions earned was to be furnished plaintiff. An annual audit was to be furnished Mrs. Hart if she so requested. The agreement also contained a twenty-four month non-competition clause commencing at the end of the term of her employment contract. This agreement not to compete is the subject of the counterclaim which was severed.

The only question before this Court is as to the date the limitations began to run under the cause of action which Mrs. Hart claims to have for unpaid commissions in connection with her employment which terminated on September 14, 1972. The suit was filed in the trial court on October 24, 1974.

Both parties agree that in an action for debt under an oral contract limitations begin to run when the cause of action accrues. Godde v. Wood, 509 S.W.2d 435 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.). Generally speaking, the accrual of a cause of action means the right to institute and maintain a suit. Whenever one person may sue another, a cause of action has accrued. Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716 (1945); Godde v. Wood, supra.

The basic dispute herein is when limitations started to run. Plaintiff contends that since an audit of commissions could be made in January of the year following the quarterly payments, at which time an adjustment or correction of any deficiencies or overages could be made, limitations did not start to run until January of 1973, and the suit was timely filed within the two-year period of limitations.

Ruby Lee Hart was the only witness to testify. She testified that commissions were to be paid to her quarterly, and that the last month for which she received a commission was January 1972. She further testified that under the agreement, the commissions would be paid to her within three months from the closing month of the quarter; that the commissions for the month of January, February, and March would be paid prior to the end of June; that the commissions for the second quarter (April, May, and June) would be paid in August or September; and that commissions for the third quarter (July, August, and September) would be paid in November or December.

We see no inconsistency between Mrs. Hart’s testimony that payments were due and payable on a quarterly basis and her testimony that after an audit any deficiency in payments would be made to her in the following January. It appears undisputed that payments were to be made to her quarterly, and the provisions for an audit do not in any way alter or change the time of payments. There was no evidence to suggest that payments were due and payable on anything but a quarterly basis.

In Hansen v. Ken Stoepel Ford, Inc., 515 S.W.2d 1 (Tex.Civ.App.—San Antonio 1974, no writ), suit was filed on August 8,1973 to collect a monthly rental of $650.00 owed for the month of August 1969, which was payable on or before August 1,1969. The lease contract was a written contract and contained the provision which required ten days notice to accelerate payment of unpaid installments or to declare the lease forfeited. This Court held that the ten-day notice provision did not relate to the time of payment; that under the express terms of the lease, the agreed monthly rental was due on or before August 1, 1965, and limitations began to run on such unpaid sum on such date; that appellant’s cause of action accrued on August 1, 1969, and that the suit filed on August 8, 1973 was barred'by the four-year statute of limitations. See also Pollack v. Pollack, 39 S.W.2d 853 (Tex.Comm.App. 1931, holding approved).

We have concluded that any commissions allegedly due for the first and second quarters of the year 1972 (January, February, and March) (April, May and June) are barred by the two-year statute of limitations; but that any commissions allegedly due for the third quarter (July, August, and September 1972) are not barred by limitations.

The judgment is affirmed as to any commissions allegedly due for the first two quarters of 1972 (January — June), but is reversed and remanded to the trial court for a determination of the amount of commissions, if any, due plaintiff for the third quarter of 1972 (July, August, and September).

Costs are assessed one-half against plaintiff and one-half against defendant.

      . Tex.Rev.Civ.Stat.Ann. art. 5526 (1958). “There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: * * 4. Actions for debt where the indebtedness is not evidenced by a contract in writing.”


author: STEPHENSON, Justice.

text:
    Julia Ruth THIBODEAUX now Julia Ruth Wisby DiMatteo, Appellant, v. Cecil Maurice THIBODEAUX et al., Appellees.
    No. 7880.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 13, 1977.

      R. E. McDaniel, Winnie, for appellant.
    M. E. Dorman, Orange, James L. Weber, Beaumont, for appellee.
   STEPHENSON, Justice.

Plaintiff, Julia DiMatteo, formerly the wife of the defendant, Cecil Thibodeaux, brought this suit against her former husband and his employer, E. I. DuPont De Nemours & Co., Inc. (“DuPont”), to recover her share of retirement benefits earned by her former husband during their marriage. Trial was before the court, and judgment was rendered for the defendant husband and DuPont.

Part I

These parties were married July 19, 1947, and their divorce was granted February 29, 1972. This suit was filed November 7, 1975. Plaintiff alleges that these retirement benefits were not partitioned in the divorce suit and that she is entitled to her share. Under the now well established law in this state, that is the primary question for this court to determine. If the retirement benefits were partitioned, then plaintiff would be faced with all of the problems of “collateral attack”, “res judicata”, and “abuse of discretion” in the division of community property. If the retirement benefits were not partitioned, then these parties are tenants in common or joint owners thereof. Busby v. Busby, 457 S.W.2d 551 (Tex.1970). See and compare Constance v. Constance, 544 S.W.2d 659 (Tex.1976). See also Clendenin v. Krock, 527 S.W.2d 471, 473 (Tex.Civ.App.—San Antonio 1975, no writ).

The only part of the divorce judgment pertaining to the property reads as follows:

“The court further finds that Plaintiff [husband] and Defendant [wife] have accumulated community property but have mutually agreed to a partition of said property and have partitioned the same between themselves. The Defendant [wife] now has in her possession all of the community property to which she is entitled under this agreement and the Plaintiff [husband] now has in his possession all of said property to which he is entitled under said agreement with the exception of some antiques still in the possession of the Defendant [wife] which the Defendant [wife] has agreed to deliver to the Plaintiff [husband] at a more convenient time and the Court finds that said agreement of partition is fair and equitable and the same is here now approved and each party is appointed his separate property as per said agreement.”

It is apparent that the retirement benefits were not specifically disposed of in such divorce judgment.

The Honorable Roy Wingate testified as follows: He is an attorney and represented the husband in the divorce case. The wife was not represented by an attorney. Win-gate said he discussed the retirement benefits with the husband and both were under the impression an employee had no vested interest in the plan at the time. There was no way of setting any kind of value on the pension plan at the time. He identified a list of the property defendant had brought to him, and the retirement benefits were not listed.

The husband [defendant] testified on the trial of this case as follows: He prepared the inventory of the community property and gave plaintiff a copy. The retirement benefits were not shown on the list. He didn’t include them because he “didn’t have anything at that time.” He didn’t know that the interest was already vested at that time. It vests after fifteen years, but he would have to wait until he was sixty-five before drawing any money. At the time of the hearing in this case (February 26, 1976) he was fifty-one years old and had been with DuPont twenty-eight years and four months.

The plaintiff-wife testified upon the trial of this cause as follows: that she and Mr. Wingate did not discuss the retirement benefits; she knew her husband had a retirement plan at DuPont, but did not know it was community property.

The trial court made findings of fact, which included a finding that the retirement benefits were partitioned and disposed of in the divorce judgment. The trial court concluded that this action constitutes a collateral attack against the divorce judgment. We disagree.

There is no evidence in this record to show that there was a partition or disposition of the retirement benefits. The divorce judgment does not specifically dispose of such benefits, and the residue clause mentions only the property in their possession. According to all of the evidence from the three witnesses testifying, the retirement benefits were given no consideration in making a division of this community estate. There is no evidence that the trial court in the divorce action had any knowledge or information about the retirement benefits.

Thompson v. Thompson, 500 S.W.2d 203 (Tex.Civ.App.—Dallas 1973, no writ), is a well written opinion on the point before us. The parties to a divorce case may in all good faith intend to make a full and complete division of all of their community estate and still may fail to effectively carry out such intent. So, it is in the case before us. No disposition was made of the retirement benefits.

The divorce decree in Dessommes v. Dessommes, 505 S.W.2d 673 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.), is similar to the one before us, in that it provides that each party was to keep the property in their possession, and that was the only adjudication of the property rights. The wife brought an action later to recover an interest in the husband’s retirement benefits. The Dallas Court of Civil Appeals held “in the possession” did not include intangible contract rights and that physical control or a power of immediate enjoyment and control must exist. The appellate court held that there had been no adjudication or division of the retirement benefits in the divorce suit. The errors on the part of the trial court require a reversal and remand of the action.

In view of another trial, it is suggested that the court and counsel give careful consideration to the two recent cases from our Supreme Court: Constance v. Constance, supra, and Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976).

Part II

The wife also complains of the trial court’s action in dismissing with prejudice her suit against DuPont her former husband’s present employer and the alleged “holder” of the retirement benefits at issue. She argues that, should she be found entitled to a share of the benefits at issue, a judgment could be rendered directly against DuPont for her share of the funds. We are of the opinion, however, that the trial court acted properly in dismissing DuPont, since its presence in the case at bar is unnecessary to afford her complete relief.

Tex.Rev.Civ.Stat.Ann. art. 5221d (1971) gives the wife adequate protection without the necessity of making the employer a party to such litigation as we have before us. Under such statute the employer or trustee would not be discharged in making payments to the husband in this case once it has had written notice of the wife’s claim. When this litigation is finally disposed of, a certified copy of the judgment would apprise the employer or trustee as to the specific interest the wife is entitled to in the retirement benefits in question when same becomes payable.

AFFIRMED in part and in part REVERSED and REMANDED with instructions.


author: KEITH, Justice.

text:
    In the Interest of Howard Frederick GALLIHER, a minor.
    No. 7885.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 13, 1977.
    Ronald A. Murray, Houston, for appellant.
    Donald L. Boudreaux, Beaumont, for ap-pellee.
   KEITH, Justice.

The appeal is from a judgment which denied the father’s petition seeking a modification of a prior decree and his appointment as managing conservator of a fourteen year old boy.

The parents of the child were divorced by decree entered on July 30, 1970, and the mother was awarded custody of the child; but, after reaching his fourteenth birthday, the child executed a written statement requesting that his father be appointed as his managing conservator. The father’s petition alleged a change in conditions since the entry of the earlier decree and alleged that it would be to the best interest of the child that the father be appointed as his managing conservator. The written selection by the minor was filed with the court.

The judgment entered following a non-jury trial recites that evidence was heard and the petition of the father was denied, although he was given generous visitation privileges. Upon request, the trial court filed findings of fact and conclusions of law.

The trial court found, inter alia, that it would be disruptive to the child to move from Beaumont to Houston to live with his father; that, although the child has filed a written statement requesting that his father be appointed his managing conservator and appears to be “a reasonably mature fourteen (14) year old boy”, his wishes and desires “are not controlling on the Court”; and, that petitioner “has not made adequate arrangements for the supervision and care of his minor child.”

The court concluded as a matter of law that there had been no material or substantial changes in conditions since the entry of the decree which would show (a) that the mother’s continued custodial status would be injurious to the child or (b) the appointment of the father as managing conservator would be “a positive improvement for said child.”

More importantly, the court concluded, as a matter of law, that it is in the best interests of the minor child that his custody be “continued in the present custodian”, his mother.

We quote the appellant/father’s points of error in the margin, noting that each is an evidentiary point; yet, we have no statement of facts in our record. Thus, we are required to follow the rule enunciated in Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683, 685 (1951), and its progeny:

“In the absence of a statement of facts it must be presumed that sufficient evidence was introduced to support the findings of the jury and the judgment of the court.”

In reviewing an appeal from a bench trial wherein the trial court has filed findings of fact and conclusions of law, we are governed by the rule of law set out in Lane, supra: such findings of fact have the same force and dignity as jury findings. See authorities collated in Gandy v. Culpepper, 528 S.W.2d 333, 335 (Tex.Civ.App., Beaumont 1975, no writ).

But, petitioner contends that under the provisions of Tex. Family Code Ann. § 14.-07(a) (1975), he was entitled to a decree naming him managing conservator because (a) the fourteen year old minor had chosen him as such in writing and (b) the trial court had not found him to be either unsuitable or incompetent to serve in such capacity. We disagree.

Section 14.07(a) reads:

“The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child. If the child is 14 years of age or older, he may, by writing filed with the court, choose the managing conservator, subject to the approval of the court.”

The father places great reliance upon the comments of Professor Eugene L. Smith found in his excellent treatise upon the law governing parent and child relationships found in the Texas Family Code Symposium, 5 Tex.Tech.L.Rev. 267, 432 (1974), wherein Professor Smith says that the quoted section of the new code “changes prior law”, citing Brooks v. Brooks, 480 S.W.2d 463, 465 (Tex.Civ.App., Eastland 1972, no writ), as an example of the prior law. Brooks, considering Tex. Prob.Code Ann. § 118, held that the child’s preference was but one of the factors to be considered in determining the best interest of the child.

We do not take issue with Professor Smith that the Family Code provision “changes prior law”, as indeed it does, for it brought into the statutory law governing the parent/child relationship the concept of consent by a child over the age of fourteen years as found in § 118 of the Probate Code. But, we hold that the child’s preference is subject always to the discharge of the court’s primary obligation of determining what is to the best interest of the child. If, from a consideration of the record as a whole, including the child’s preference, the court should determine that it is to the best interest of the child that the court approve the designation, it will be given effect; otherwise, it may be ignored. In no event is such designation absolute or controlling.

Professor J. McKnight’s comment found in 30 SW.L.J. 68,102 (1976): “The wishes of the child are not given controlling effect . .” was based upon the holding in Radtke v. Radtke, 521 S.W.2d 749, 751 (Tex.Civ.App., Houston [14th Dist.] 1975, no writ), which is not precisely in point in our case since the child there was only twelve and one-half years of age. Nevertheless, the rationale of Radtke is applicable to our case: The primary consideration of the court is always the best interest of the child.

Finding no error in the proceedings, the judgment of the trial court is affirmed.

      . “POINT OF ERROR 1: The trial court erred in refusing to approve the choice of a managing conservator made by a minor child above the age of fourteen (14) when there was no evidence or finding that the parent selected was not suitable or competent to serve in that capacity.
      “POINT OF ERROR 2: The trial court abused its discretion in not approving the selection of a managing conservator made by a child over fourteen (14) in a suit to change the custody of that child when there was no evidence or finding that the parent selected was not suitable or competent to serve in that capacity.
      “POINT OF ERROR 3: The trial court abused its discretion in refusing to appoint PETITIONER the Managing Conservator of the child as there was sufficient evidence to conclude that the circumstances of the child had so materially and substantially changed since the entry of the Decree of July 30, 1970, that the retention of RESPONDENT would be injurious to the welfare of the child and the appointment of PETITIONER would be a positive improvement.”

      . We note, also, the oblique reference to In re Carrigan, 517 S.W.2d 817 (Tex.Civ.App. Tyler 1974, no writ), with respect to an infant’s selection of a guardian under Tex.Prob.Code Ann. § 118(b) (1956). [30 SW.L.J. at 102, fn. 274] Carrigan is relied upon by our petitioner.


text:
    Marcello GALLEGOS, Appellant, v. TRUCK INSURANCE EXCHANGE, Appellee.
    No. 15694.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 19, 1977.
    Rehearing Denied Feb. 16, 1977.

      Southers, Goldberg, Lyons & Huson, Inc., Karl Dorr, Frank R. Southers, San Antonio, for appellant.
    Robert B. Summers, San Antonio, for ap-pellee.
   KLINGEMAN, Justice.

This is a workman’s compensation case in which the question is whether there is sufficient evidence to warrant an award for general disability rather than only a specific injury to the workman’s left eye. Trial was to a jury resulting essentially in jury findings that the injury to the left eye had extended to and affected the claimant’s head; that the injury was a producing cause of some incapacity; and that such incapacity was total and permanent. Ap-pellee, Truck Insurance Exchange, filed a motion for judgment non obstante veredicto and a motion to disregard the jury’s answers to Special Issue No. I and Special Issue No. 2 (producing cause of incapacity), which motions were granted by the trial court. Appellee had stipulated that appellant had suffered total and permanent loss of sight in his left eye and judgment was entered accordingly for such loss.

There is evidence to support the jury findings that Gallegos is totally and permanently disabled. The question before us is whether there is any evidence to support the jury finding that Gallegos’ injury to his left eye extended to and affected his head.

A judgment non obstante veredicto may be rendered only when there is no evidence upon which the nonmoving party may prevail. In deciding whether there is any evidence of probative value to support the finding in question, an appellate court must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Rule 301, Tex.R.Civ.P.

Gallegos was injured during the course of his employment as a result of battery acid dripping into his left eye. Appellee does not question the severity of the injury to such eye and stipulated that Gallegos had suffered total and permanent loss of sight in his left eye. Since the date of the accident Gallegos has had frequent headaches and pain and has been unable to work or engage in much physical activity. Gallegos testified that he has severe headaches basically on the left side of his head; that there is nothing wrong with his right eye except sometimes it waters; that there is some pain on the right side but not very severe; that the pain is on the left side and feels like it is in the inside of the eye; that the pain that keeps him from working is pain in his left eye; that whenever he picks up something heavy the nerve inside his left eye bothers him; and that he has not been able to work because of the pain and essentially can do little physical activity. He further testified that he can only work for short periods of time; that the pain is on the left side on the inside and on the left half of the head; that he is unable to work because of the pain he feels inside his eye; and that he also feels some pain on the outside of the eye.

Several lay witnesses testified as to Gallegos’ inability to work and stated he had dizzy spells when he went out in the sun.

Dr. Robert H. Poirier, an ophthalmologist, was the only medical witness to testify. He first saw Gallegos about two weeks after the accident and treated him about 25 times. He testified that Gallegos’ left eye had a visual acuity of only 15/400ths with glasses; and that he suffered from a scarring injury to the cornea. He testified that Gallegos’ injured eye suffered from a condition known as marked or chronic uveitis, which consists of outpouring of inflammatory cellular elements into the middle and posterior parts of the eye; and that patients with uveitis have several symptoms, including pain, headache, loss of vision, sensitivity to light, swelling and spasms around the injured eye, and tearing and blinking in both eyes.

He testified positively that the injury is confined to the left eye and that there is no direct evidence of damages or physical harm to the right eye or any other part of the body; he did recognize that in a “paired sensory system” injury to one eye will necessarily have some effect on the other eye, but stated that Gallegos’ right eye was essentially normal.

The fact that pain alone (as distinguished from an extension of the injury) extends from an injury to a distinct member of the body to the body does not make the injury a general one and will not support a finding of general incapacity. Texas Employers’ Insurance Association v. Shannon, 462 S.W.2d 559 (Tex.1970).

In Texas Employers' Insurance Association v. Espinosa, 367 S.W.2d 667 (Tex.1963), Espinosa suffered a cut in the cornea of his left eye. Espinosa testified that since the injury he had suffered severe pain, could not stand bright sunshine, had constant headaches and dizziness, and that he could only do limited work. This testimony was corroborated by lay witnesses who worked with him.

An ophthalmologist testified that he found no physical objective evidence connecting the headaches and dizziness of which Espi-nosa complained to a source other than the injury to the left eye. The jury found that the injury extended to and affected his right eye, thereby resulting in incapacity. The San Antonio Court of Civil Appeals, with one justice dissenting, held that the doctor’s testimony was not conclusive on the affect of extension, and affirmed the trial court.

The Supreme Court reversed, saying:

There is no evidence which causally links Espinosa’s headaches and dizziness to a source other than an injury to the left eye and his attempts to use his left eye in its impaired condition. To hold that subjective complaints of pain, headaches and dizziness following a specific eye injury constitute in themselves evidence of the extension of the specific injury so as to affect the body generally would be to disregard the specific injury concept upon which Article 8306, § 12, is based. Specific injuries like all bodily injuries have their painful aftermaths and like undesirable consequences, but mere proof of this is insufficient in law to show an extension of a specific injury.

See also Coleman v. Hartford Accident & Indemnity Co., 297 S.W.2d 236 (Tex.Civ.App.—Fort Worth 1956, writ ref’d).

The burden of proving that the specific injury extended to and affected other portions of the body so as to result in a general injury rests upon the claimant. Texas Employers’ Insurance Association v. Brownlee, 152 Tex. 247, 256 S.W.2d 76 (1953); Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W.2d 463 (1943). This burden was not met by Gallegos. We hold that there is no evidence of probative value to support the jury’s finding that the injury to the left eye extended to and affected the head.

All of Gallegos’ points of error have been considered and all are overruled. The judgment of the trial court is affirmed.

      . Do you find that the injury to Gallegos’ left eye extended to and affected his head, or that such injury to Gallegos’ left eye was confined to his left eye?
      The following instruction was given:
      “In connection with Issue No. 1, you are instructed that the left eye injury does not extend to and affect the head if the use or attempted use of the injured member merely results in pain in the head, without producing damage or harm to the physical structure of the head.”