author: SPURLOCK, Justice.

text:
    Alvin B. WALKER, Appellant, v. Elwood ROSS, Appellee.
    No. 17779.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 18, 1977.
    Rehearing Denied March 25, 1977.
    Robert O’Donnell, Dallas, for appellant.
    Berman, Fichter & Mitchell, and Harold B. Berman and W. W. Mitchell, II, Dallas, for appellee.
   OPINION

SPURLOCK, Justice.

This is a usury case. Elwood Ross loaned Alvin B. Walker $50,000.00. Walker signed a note for $55,000.00 dated May 26, 1972, and due November 24, 1972. Ross sued on the note. Walker defended in part on the grounds that the difference of $5,000.00 represented usurious interest. The jury found, based on the court’s instructions, that the disputed $5,000.00 was a charge made by Ross for services rendered in securing the loan and/or for other unrelated work Ross had done for Walker and/or to compensate Ross for losses on still another transaction; and the charge was not for interest. Judgment was rendered for Ross.

We reverse and remand.

Ross filed suit against Walker on a note in the principal amount of $55,000.00, plus interest at 10% per annum from maturity plus attorneys’ fees. Walker answered in part that he was entitled to credits; that he had borrowed only $50,000.00; that the additional $5,000.00 was interest charged by Ross for loaning the money; that he agreed to pay the 8½% interest charged Ross by the First National Bank of Lancaster on a loan of $50,000.00 which Ross had at that bank; that Ross borrowed this $50,000.00 from the First National Bank of Lancaster to loan this amount to Walker and this resulted in a charge to Walker of 28.5% interest per annum.

By way of counterclaim, Walker sought judgment to extinguish the original obligation because he had been charged more than double the lawful rate of interest and to recover against Ross the sum of $13,-394.00.

Ross, by an amended petition, alleged that the $5,000.00 charged Walker was for services rendered in the nature of promotional work, for the loss he had sustained in a real estate transaction (to be referred to as the Mudge house transaction), and for services rendered in procuring the loan from the First National Bank of Lancaster (hereinafter referred to as Lancaster Bank).

The case was submitted to the jury on only two special issues, together with a definition of interest and the court’s instruction in connection therewith. The special issues and the jury’s findings were as follows:

“Issue No. 1. Do you find from a preponderance of the evidence that the sum of $5,000.00 that Walker agreed to pay Ross was to compensate Ross for Ross’ services in securing the First National Bank of Lancaster loan, and/or for Ross’ advertising and promotional services to Walker, and/or to compensate Ross for his loss on the Mudge house? . . . Answer: We do.
“ ‘Interest’ is defined as the compensation allowed for the use or forebearance [sic] or detention of money. You are advised however that an agent or broker may lawfully charge a commission for his services in negotiating a loan with the third party and that one may sell his credit to a borrower for a consideration; in such instances the charges are not for the use and detention of money.
“Issue No. 2. Do you find from a preponderance of the evidence that on May 26, 1972, the Plaintiff Ross charged the Defendant Walker $5,000.00 interest on the loan of $50,000.00? . . . Answer: We do not.”

We will first discuss the real estate transaction referred to in special issue no. 1. Walker had built a house in the Franklin Hills Addition which he was trying to sell. Ross approached Walker and requested that he sell the house to Don Mudge, who was a sales manager for one of Ross’ companies. Mudge could not finance the transaction because of his lack of financial strength. Walker was unwilling to accept a second lien, but he agreed to sell the house to Mudge provided Ross would endorse and guarantee Mudge’s note payable to Walker secured by a second lien. Ross agreed to endorse the note, provided Walker would pay him $2,500.00 for the endorsement. The real estate transaction was consummated in accordance with the above agreement. Mudge defaulted on the note payable to Irving Savings secured by the first lien and the note payable to Walker secured by the second lien endorsed by Ross. The note endorsed by Ross was in the amount of $24,000.00 plus some accrued interest. Ross borrowed money from the Lewisville State Bank to pay the note secured by the second lien. Later, Mudge conveyed the house to Ross and agreed to pay him for any losses sustained in connection with the sale of the house to him. The parties, at a later date, agreed that the sum of $7,244.59 was the amount of the loss sustained by Ross. Mudge then paid Ross this sum which completely settled and paid in full to Ross any losses he had sustained on the house. Ross obtained a long-term loan on the house after he had acquired it from Mudge. He then sold the house to Sutton. The details of that transaction will be discussed later.

Walker approached Ross to borrow $50,-000.00 from him for an unrelated matter. Ross agreed to make the loan.

Walker testified that the terms of the loan were that Ross would borrow the money from a bank provided Walker would pay him $5,000.00 plus whatever interest the lending bank charged Ross. The agreement was made. Ross borrowed $50,000.00 at 8V2% interest per annum from the Lancaster Bank, signed a note in that amount dated May 24,1972, due November 24,1972. Ross then endorsed the check representing the proceeds of the loan from the bank and handed it to Walker. Walker then signed a note payable to Ross in the sum of $55,-000.00 dated May 26, 1972, due November 24,1972. Walker testified this was the only agreement that was made.

Ross admitted that he advanced only $50,000.00 to Walker. He testified that he charged Walker $5,000.00 (1) for obtaining the loan, (2) as compensation for promotional work Ross had done for Walker, and (3) for losses he had sustained in connection with the Mudge house transaction. He also admitted Walker had contracted with him to pay the 8½% interest charged by the Lancaster Bank on the $50,000.00 loan.

Walker assigns three points of error. The second and third points assert the trial court erred in submitting these issues together with the definition of interest.

Walker takes the position that the definition of interest contaminates both issues. In effect the court instructed the jury that although the bank did not loan any money to Walker and the loan was made directly from Ross to Walker, as the note reflects, nonetheless, under these circumstances the charge Ross made to Walker for the borrowing of the money was not interest. The instruction further implies that under the circumstances of this case Ross was simply a broker or a middle man.

Walker objected to the court’s charge in writing, but the record does not reflect the court’s ruling thereon. In his brief, however, Walker states: “ . . . Prior to the submission of this charge to the Jury, the Appellant objected to the charge by dictating the same to the Court reporter and carried forward such objections in the Appellant’s Motion for New Trial. The objections to the charge were over ruled [sic] by the Trial Judge . . . .” This statement was not challenged by appellee. This court may and does accept this statement as being correct. Tex.R.Civ.P. 419; City of Dallas v. Holcomb, 381 S.W.2d 347 (Tex.Civ. App.—Dallas), aff’d 383 S.W.2d 585 (Tex.1964).

The pertinent statutes are Tex.Rev.Civ. Stat.Ann. art. 5069, § -1.01, -1.02, -1.04, -1.06 and -8.04 (1971), portions of which are quoted below:

1.01. “Definitions
“(a) ‘Interest’ is the compensation allowed by law for the use or forbearance or detention of money .
“(d) ‘Usury’ is interest in excess of the amount allowed by law.
1.02. “Maximum rates of interest
“Except as otherwise fixed by law, the maximum rate of interest shall be ten percent per annum. A greater rate of interest than ten percent per annum unless otherwise authorized by law shall be deemed usurious. 'All contracts for usury are contrary to public policy and shall be subject to the appropriate penalties prescribed in Article 1.06 of this Subtitle.” (Emphasis added).
1.04. “Limit on rate
“The parties to any written contract may agree to and stipulate for any rate of interest not exceeding ten percent per annum on the amount of the contract; and all other written contracts whatsoever, except those otherwise authorized by law, which may in any way, directly or indirectly, provide for a greater rate of interest shall be subject to the appropriate penalties prescribed in this Subtitle.” (Emphasis added).
1.06. “Penalties
“(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorney fees fixed by the court provided that there shall be no penalty for a violation which results from an accidental and bona fide error.” (Emphasis added).
Article 5069 — 1.01 et seq. was effective October 1, 1967. Article 5069 — 50.03 repealed the earlier provision (Tex.Laws 1963, Ch. 205, § 28 at 569) which allowed a person or his legal representative to recover double the amount of usurious interest received.
Tex.Const. art. XVI, § 11, provides in pertinent part that in the absence of legislation fixing maximum rates of interest, “All contracts for a greater rate of interest than ten percentum per annum, shall be deemed usurious . ..”
The legislature has provided rules to aid the courts in the construction of its statutes. They are as follows:
Tex.Rev.Civ.Stat.Ann. art. 10 (1969) General rules.
“The following rules shall govern in the construction of all civil statutory enactments .
“6. In all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy.
“8. The rule of the common law that statutes in derogation thereof shall be strictly construed shall have no application to the Revised Statutes; but the said statutes shall constitute the law of this State respecting the subjects to which they relate; and the provisions thereof shall be liberally construed with a view to effect their objects and to promote justice.”
The usury statute is penal in nature. In addition to the imposition of civil penalties, it provides for criminal penalties. Tex.Rev. Civ.Stat.Ann. art. 5069, § 1.06(2) and § 8.02 (1971).
Tex.Penal Code Ann. § 1.05 (1974) — Construction of Code — provides:
“(a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.
“(b) Unless a different construction is required by the context, Sections 2.01, 2.02, 2.04, 2.05, and 3.01 through 3.12 of the Code Construction Act (Article 5429b — 2, Vernon’s Texas Civil Statutes) apply to the construction of this code.”

In determining whether a loan transaction is usurious, the form is disregarded and the substance is investigated. Schmid v. City Nat. Bank of Wichita Falls, 132 Tex. 115, 114 S.W.2d 854 (1938).

It is clear that where the face amount of the loan is greater than the amount actually advanced, the principal upon which the lender may charge interest is the amount advanced, and the difference (where there are no valid charges) is considered prepayment of interest. Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046 (1937); Schmid v. City Nat. Bank of Wichita Falls, supra.

The issue in the case before us is primarily whether Ross was a broker or a lender. If he is a broker in the sense that he is a middle man who negotiates a bargain between other persons, then his fee for obtaining the loan is not interest. If he himself is the lender, then his fee is compensation for the use, forbearance, or detention of money and is interest.

In Crow v. Home Savings Association of Dallas County, 522 S.W.2d 457 (Tex.1975) that court had before it a ease in which the borrower paid $24,985.00 to Home Savings in return for Home Savings’ guaranteeing a 30-day loan from the First National Bank to Crow of $150,000.00 plus 7% interest. Home Savings, in addition to guaranteeing payment of the loan, pledged a certificate of deposit of $150,000.00 as security for the payment of the loan. In that case the loan was made directly from the First National Bank to Crow. That court held that Home Savings could be held to have overcharged for the use and detention of money only if in substance, if not in form, it was Home Savings’ money and not the money of the First National Bank which was used and detained by Crow. That court relied upon Greever v. Per sky, 140 Tex. 64, 165 S.W.2d 709 (1942) in stating “. . . that an agent or broker may lawfully charge a commission for his services in negotiating a loan with a third party; and that one may sell his credit to a borrower for a consideration, and to that end endorse, guarantee or become surety for the payment of a loan made to the borrower by a third person. .” 522 S.W.2d at 459 (Emphasis added).

We observe that in the instant case the trial court in its instructions to the jury concerning what constitutes interest, copied only a part of the above holding in Crow down through the word “consideration” and omitted the balance of the statement of the law that followed. In that portion of its statement the court in Crow emphasized that in order to be deemed an agent or broker, a charge for the sale of one’s credit must have been made in consideration for the endorsement, guarantee or service as surety for the payment of a loan made to the borrower by a third person.

In the case before us it is undisputed that no loan was made by a third person directly to Walker. The bank did not make the loan to Walker. Instead, the bank made a loan to Ross, and Ross then made a loan to Walker.

In the Crow case the court further emphasized the fact that if a person acts solely as a broker in bringing a borrower and a lender together, the charge made for the brokerage, even though it may be a heavy commission, is not a charge made for the use or detention of money and is not interest. In this respect the court stated: “. As before noted, for the usury laws to apply, there must be an overcharge by a lender for the use and detention of the lender’s money. . . . ” (Emphasis added). That court further noted that the record did not disclose any proof that Home Savings had transferred any of its funds into the bank’s account, that the bank had thereby indirectly loaned any of Home Savings’ money, or that there was any other subterfuge.

Under the undisputed facts in the case before us Ross was not a broker. The court below then compounded its error when it omitted that portion of the statement of the law in Crow concerning loans made to the borrower by a third person. The rule of law in the Crow case is not applicable to the case before us.

The court should have instructed the jury in accordance with the law announced in Lafferty v. A. E. M. Developers and Builders Co., 483 S.W.2d 279 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.), which we will now discuss. In Lafferty, the borrower contacted Ruffino, a middle man, to obtain his services in helping arrange a loan. The middle man or broker contacted Lafferty as a prospective lender. Lafferty then borrowed $7,500.00 from the Highland Park State Bank, loaned $7,000.00 of the proceeds of this loan to the borrower, and retained $500.00, of which he paid a part to Ruffino. It was contended that the $500.00 was a fee for the use of Lafferty’s credit and other services rather than interest.

That court quoted from Greever v. Persky, supra, to the effect that a pledge by a party of “ ‘. . . his credit or collateral with a third party in order to obtain the funds which he himself lends to the borrower does not authorize him to charge the commission in addition to the highest legal rate of interest’.” (Citing cases). The court then held that “. . . The loan was from Lafferty to appellee, and the fact that Lafferty borrowed the money on his own credit did not authorize him to charge a commission plus maximum interest for doing so. . . . ” 483 S.W.2d at 281.

In the case before us the charge made by Ross for obtaining a loan from the bank to Ross and then lending it to Walker is interest. The source of the money loaned is immaterial. It makes no difference whether Ross loaned Walker the money from Ross’ savings account, checking account, or money that he had borrowed. Therefore, the instruction the court gave the jury was erroneous in that it instructed the jury under the undisputed facts detailed above that, in effect, Ross could be considered an agent or broker and could lawfully have charged a commission for his services in negotiating the loan from the bank to himself. This error was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.

Appellant, by his first point of error apparently attempts to assert that there is “no evidence” to support the jury’s verdict or that the evidence is “insufficient” to support it. His point of error standing alone does not apprise this court whether he is asserting “no evidence” or “insufficient evidence” or both as points of error.

An examination of his statement and argument indicates that he is probably making both contentions. We will consider his point of error under the authority of Tex.R. Civ.P. 1, which provides that the Texas Rules of Civil Procedure shall be given a liberal construction, and the rule announced in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943).

As indicated above, special issue no. 1 inquired whether the sum of $5,000.00 that Walker agreed to pay Ross was to compensate Ross (1) for Ross’ services in obtaining the Lancaster Bank loan, and/or (2) for, Ross’ advertising and promotional services, and/or (3) for Ross’ loan on the Mudge house.

By so combining these three inquiries in special issue no. 1 and linking them with the ambiguous “and/or” construction, the court permitted the jury to base its answer on any one, all, or a combination of the three items included; without indicating to which items its answer responded.

It is unnecessary for us to speculate which items the jury’s affirmative answer responded to, however, for it is our conclusion that for the reasons stated below the court’s judgment may not rest upon items (2) or (3) in special issue no. 1, and that, if resting upon item (1), such answer conflicts with the jury’s answer to special issue no. 2.

If the jury’s affirmative answer to special issue no. 1 was based upon item (1), such answer was in effect a finding that the $5,000.00 was interest, as already discussed. It is apparent from the jury’s answer to special issue no. 1 and from the facts analyzed above that the $5,000.00 in question was a fee charged by Ross for obtaining the loan from the Lancaster Bank and then loaning the money to Walker. It is a charge for the use and detention of money and therefore is interest. The jury found, in answer to special issue no. 2, however, that the $5,000.00 was not interest. Our analysis of the evidence and the jury’s findings together with the court’s instructions and the applicable law, reveals that if the jury’s answer to special issue no. 1 was based upon item (1) of the instruction, there is an irreconcilable conflict between the jury’s answers to special issues nos. 1 and 2.

We will next examine the evidence concerning Ross’ advertising and promotional services to Walker which is item (2) in special issue no. 1. Ross testified that the services he rendered were in the nature of Ross Agency’s mailing letters for Walker. He testified that Ross Agency is a corporation, as is Product Promotions, and that he is an officer, employee and a shareholder of these corporations. On May 1, 1972, the Ross Agency billed Flower Mound Investment Co., Inc., in the amount of $347.40 for mailing out 965 personalized letters. This bill has not been paid. Walker testified that this bill (which was admitted in evidence) was not his bill, he was not liable for it, it was not addressed to him, and the services were instead rendered to Flower Mound Investments Co., Inc., as the bill reflects. Ross, although present in the courtroom, offered no evidence to the contrary. If a party has the means and opportunity to disprove testimony, if it is not true, and fails to do so, he is bound by such testimony. Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41 (Tex.1965).

When confronted with this exhibit and this evidence, Ross testified that he had rendered other services, but he was unable to specify their nature, when they were performed, or the amount they were worth. Ross also admitted he had not billed anyone for them.

If the jury’s answer to special issue no. 1 was based upon item (2) of the special issue, we hold that the record contains no evidence of probative value as to the value of the alleged advertising and promotional services performed by Ross for Walker. In this regard we also hold that there is insufficient evidence to support the jury’s answer to item (2) of special issue no. 1.

Item (3) in special issue no. 1 permitted the jury to determine whether all or part of the $5,000.00 was to compensate Ross for his loss on the Mudge house. (Although the issue assumes there was a loss on the Mudge house, there was no objection to it on that ground.) We have carefully examined the record and determined that the jury’s verdict with regard to the alleged loss on the Mudge house transaction is not supported by the evidence. The figures before this court actually reflect a net profit for Ross, as shown below. Ross testified that he received the following amounts of money in connection with the Mudge house transaction: (1) Walker paid him $2,500.00 to obtain his guarantee of the second lien note; (2) after he had obtained title to the house and determined his loss, Mudge paid him what they agreed was the entire amount of the loss, $7,244.59; (3) when the house was later sold to Sutton, Sutton assumed the first mortgage on the house in the amount of $43,400.00; (4) Ross accepted a second lien note from Sutton in the amount of $10,915.00; and (5) he received a cash down payment of $1,509.00.

These items alone total $65,568.59.

Ross also testified that with money borrowed from the Lewisville State Bank he paid $24,000.00 plus interest to a lumber company which was the holder of a mechanic’s lien on the Mudge house. After Mudge reconveyed the house to Ross in lieu of Ross’ foreclosing, Ross paid the Irving Bank $38,195.41, making a total of $62,195.41 paid out.

On the basis of the above figures ($65,-568.59 received and $62,195.41 paid out), Ross made a net profit of $3,373.18 on the Mudge house transaction.

In addition, Walker paid Ross, or paid for his benefit, some of the interest on the $50,000.00 loan that Ross had obtained from the Lancaster Bank, in the amounts of $78.00 and $2,125.00. Walker also paid Ross $1,901.04 representing interest on the loan that Ross obtained from the Lewisville State Bank in the amount of $25,000.00, and $2,500.00 to reduce the principal, and $843.75 as interest on the balance of the above-described loan from Lewisville State Bank to Ross.

We hold that if the jury’s answer to special issue no. 1 was based upon item (3) thereof there is no evidence and insufficient evidence to support the jury’s answer thereto.

CONCLUSION

In summary, we hold with respect to special issue no. 1 that the jury’s answer, if resting upon item (1) thereof, is under the law and the evidence, a finding that the $5,000.00 charge was interest; that such answer, if resting upon item (1), is in conflict with the jury’s answer to special issue no. 2; and that there is no evidence and insufficient evidence to support the jury’s answer, if based upon items (2) and (3).

Although the note reflects that the loan was for a term of two days less than six months, we will treat it as a full six months term to facilitate discussion. The $5,000.00 charge for this period is thus the equivalent of an annual charge of at least 20% interest. In addition, Walker contracted with Ross to pay the Lancaster Bank the 8½% interest charged Ross by the Lancaster Bank on the $50,000.00 loan. This results in a total charge to Walker of at least 28V2% interest on the $50,000.00 loan.

Under the record the charge for the loan is clearly usurious.

The contradictory jury findings in this case do not support the trial court’s judgment for Ross. Nor do they provide a proper basis for rendition of judgment for Walker. King v. Hill, 141 Tex. 294, 172 S.W.2d 298 (1943); Brewster v. City of Forney, 223 S.W. 175 (Tex.Com.App.1920).

It is also our opinion that the case was not fully developed. In the interest of justice we refrain from rendering judgment for Walker. London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619 (1944); Tex.R. Civ.P. 434; Calvert, “. . .In the Interest of Justice”; 4 St. Mary’s L.J. 291 (1972).

An examination of the record discloses the pleadings are global, vague and indefinite and gave little guide to the trial court in ruling upon the admissibility of evidence. There were no special exceptions filed; Ross reduced his accounting to an exhibit which was admitted into evidence but does not appear in the record; Walker placed his accounting on the blackboard which is not in the record, and the parties were searching for pertinent records during overnight recesses during the trial. The pleadings and evidence presented a confusing picture to the jury and caused problems for the court in trying the case. In order to avoid unnecessary delay in these proceedings, we refrain from ordering Walker’s counsel to rebrief the case, under the authority of Tex.R.Civ.P. 422.

Normally in a case of this kind a court would order a proceeding under Tex.R. Civ.P. 166, Pre-Trial Procedure; Formulating Issues. At this pre-trial stage, the court can require the parties to plead specifically; to properly make their requests for issues and instructions; and to submit all proposed exhibits for examination; identification and marking by the court reporter. The court may also consider other matters to facilitate the trial and narrow the issues and may make any other determination that may either shorten or dispose of the case.

Reversed and remanded.


source: Caselaw Access Project

author: CHADICK, Chief Justice.

license: Public Domain

text:
    In the Matter of E_A_R_, a child.
    No. 8432.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 22, 1977.

      Thomas R. Grett, Longview, for appellant.
    Odis R. Hill, Crim. Dist. Attys., James Fletcher, Asst., Longview, for appellee.
   CHADICK, Chief Justice.

This is an appeal from an adjudication under the provisions of the Tex. Family Code Ann. Sec. 51.03(a)(1) (1975), that a child, E-A.-R-, has engaged in delinquent conduct and is subject to further orders of the juvenile court.

The child, E_A_R_, was born on May 27,1960. In October, 1975, she was adjudicated to be a child in need of supervision for “voluntarily being absent from her parents’ home without the consent of her parents for a substantial length of time without intent to return.” In other words, she was found to be a “runaway.” This, the quoted finding, constitutes grounds for entering a supervision order authorized by Tex. Family Code Ann. Sec. 51.03(b)(3) (1975). The child was ordered detained on December 3, 1975, and was released from detention on December 5, 1975, and placed in the custody of the Department of Public Welfare for placement in a group foster home owned by the Emergency Children’s Housing Organization, Inc., Longview, Texas.

On March 8, 1976, she ran away again, that is, she left the foster home, went to Colorado Springs, Colorado, without authority of the Department of Public Welfare. She voluntarily turned herself over to juvenile authorities in Colorado Springs on March 24, 1976, and returned to Longview on March 30, 1976. The next day, March 31, 1976, a petition was filed in behalf of the State of Texas asking that she be adjudicated a child that had engaged in delinquent conduct by committing the offense of escape, a violation of V.T.C.A., Penal Code, Sec. 38.07(a). The juvenile judge found beyond a reasonable doubt that the child violated the code section alleged and adjudged her to have engaged in delinquent conduct.

So far as violation of V.T.C.A., Penal Code, Sec. 38.07(a) is concerned, the parties stipulated that the child was in custody and escaped. They do not agree upon whether or not adjudication that the child was in need of supervision is a conviction of an offense. This last and decisive issue requires consideration of the several statutes that bear upon the issue, that is, Tex.Family Code Ann. Sec. 51.01, 51.03 and 51.13 (1975), as well as V.T.C.A., Penal Code, Sec. 1.02, 1.03 and 38.07. Relevant language of these statutes will be noticed in the course of discussion.

Considering first the Texas Family Code, it provides in Section 51.03(b)(3) that a child’s voluntary absence from his home without the consent of the parent or guardian for a substantial time or without intent to return is conduct indicating a need for supervision. Section 51.01, among its provisions, says that Title 3, which embraces the several Family Code sections previously named, shall be construed to effectuate the following public purposes:

“(1) to provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions;
(2) to protect the welfare of the community and to control the commission of unlawful acts by children;
(3) consistent with the protection of the public interest, to remove from children committing unlawful acts the taint of criminality and the consequences of criminal behavior and to substitute a program of treatment, training, and rehabilitation;
(4) to achieve the foregoing purposes in a family environment whenever possible, separating the child from his parents only when necessary for his welfare or in the interest of public safety and when a child is removed from his family, to give him the care that should be provided by parents; . . (Emphasis added.)

And Section 51.18 provides, in the part material here, that an adjudication (that a child needs supervision) “is not a conviction of crime.” Turning to the Penal Code, its general purposes and certain specific objectives are set out in Section 1.02. One of the objectives specified is to safeguard conduct that is without guilt from condemnation as criminal. In Section 1.03 it is provided that conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of the county commissioners’ court, or rule authorized by and lawfully adopted under a statute. The penal offense of escape is defined in Section 38.07. There it is said a person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody.

The voluntary absence of the child from his home without the consent of parent or guardian for a substantial length of time or without intent to return is not expressly termed an offense against the law or an unlawful act by Tex.Family Code Ann. Sec. 51.03 or elsewhere in the Code. When this fact is determined to exist, a court is enabled not to punish but to make such orders as the Code authorizes to protect the welfare of the community and to provide for the care, protection and wholesome moral, mental and physical development of the child. Nothing is found in the Family Code, or elsewhere, to indicate that the Legislature intended to denounce conduct of this nature as an offense as that term is used in Y.T.C.A., Penal Code, Sec. 38.07(a). Such intent would run counter to legislative directions to the courts regarding interpretation and construction of the sections of both the Texas Family Code and the Texas Penal Code. The conclusion is compelled that the child has not been convicted of an offense defined by statute and therefore the child could not have committed the offense of escape as defined by V.T.C.A., Penal Code, Sec. 38.07(a).

Confirmation of this interpretation is found, it is thought, in the circumstances that the Tex.Family Code, Sec. 51.03, together with Sec. 54.04, furnishes a procedure to control an incorrigible runaway. The commentary upon Tex.Family Code, Sec. 51.03, by Robert O. Dawson which appears in 5 Tex.Tech L.Rev. 517, 520 (1974), says:

“A child who is truant or a runaway may be adjudicated to have engaged in conduct indicating a need for supervision. Section 51.03(b)(2) and (3). Once adjudicated, he must be placed on probation. Section 54.04(d) and (g). If he violates probation, he has engaged again in conduct indicating a need for supervision. Section 51.03(b)(4). If prosecuted and adjudicated, he must again be placed on probation. Section 54.04(d) and (g). If he violates that probation, however, a delinquency petition may be filed under Section 51.03(a)(2). If he is adjudicated to have engaged in delinquent conduct, he may be committed to the Youth Council or placed on probation as any other delinquent child. Section 54.04(d).”

This procedure is complex and awkward. The runaway must first be adjudged in need of supervision because of voluntary absence from his home without consent of his parent or guardian for a substantial length of time or without intent to return and be placed on probation. On violation of this probation, the runaway must be adjudged in need of supervision because of violation of the probation order and again placed on probation. On violation of the second probation order, resort may be made to Section 51.03(a)(2) and delinquent conduct determined and appropriate orders made. It is noteworthy that the exceptions contained in the last mentioned subdivision do not have application as the conduct in question is violation of the court order. Promulgation of the procedure discloses a legislative intent that a child’s conduct in running away from home is not denounced as an offense against the criminal laws.

The judgment of the trial court is reversed and the case is remanded for proceedings consistent herewith.


author: EVANS, Justice.

text:
    Mrs. Shirley GASAWAY, formerly Mrs. Shirley Nesmith Allen, Appellant, v. Robert E. NESMITH et al., Appellees.
    No. 16830.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 24, 1977.
    Rehearing Denied March 24, 1977.
    Chilton Bryan, Houston, for appellant.
    Jamail & Gano, Joseph D. Jamail, William J. Stradley, Houston, for appellees.
    Walter D. Allen, David Byron Allen and Ann Valesca Allen, John L. Hill, Atty. Gen., David M. Kendall, Jr., First Asst. Atty. Gen., Scott Garrison, Asst. Atty. Gen., Austin, for appellee University of Houston.
   EVANS, Justice.

This will contest was brought by the appellant, Shirley Nesmith Gasaway, to set aside the will of her mother, Mildred G. Nesmith, deceased, which had been admitted to probate on March 21, 1978. Mrs. Gasaway contested the will on the ground that it was not executed and witnessed in compliance with the provisions of the Texas Probate Code. The trial court granted a summary judgment in favor of the proponents of the will on January 20, 1975, but that judgment was reversed and remanded on the ground that a fact issue existed as to whether the will was signed by the testatrix in the presence of the attesting witnesses as required by the Texas Probate Code. Allen v. Nesmith, 525 S.W.2d 943, 946 (Tex.Civ.App.—Houston [1st] 1975, writ ref’d n. r. e., 531 S.W.2d 330). This appeal is from a final judgment entered on August 26, 1976, in favor of the proponents after a non-jury trial.

Under 46 points of error the contestant attacks the legal and factual sufficiency of the evidence to support the trial court’s findings that the will was executed in accordance with the statutory prerequisites and contends that the trial court erred in excluding certain testimony under the Dead Man’s Statute, Article 3716, Tex.Rev.Civ. Stat.Ann.

The will of Mildred G. Nesmith is self-proved, evidencing on its face compliance with the provisions of Section 59, Texas Probate Code. As stated in this court’s previous opinion in this case, a self-proving affidavit constitutes prima facie evidence of the validity of the execution of the will, and although the attesting affidavit is subject to contradiction by competent testimony, such testimony does not destroy the prima facie case established by the attestation clause and only raises a fact issue for the trier of facts. Thus, upon remand, it was for the trial court to determine the credibility and weight to be given the testimony presented on the issue. 525 S.W.2d 946.

The contestant first called as a witness Mr. Robert E. Nesmith, the surviving husband of Mildred G. Nesmith, deceased. The proponents objected to certain questions asked of Mr. Nesmith concerning the execution of his wife’s will on the basis that such testimony was prohibited by the Dead Man’s Statute, Article 3716, T.R.C.S., and the trial court sustained such objections. The contestant argues that the provisions of the statute were waived by the proponents’ examination of this witness at a previous trial of the case. The contestant did not, however, bring for this court’s review any record of a prior trial, nor was there brought forward, by bill of exceptions or otherwise, the evidence sought to be offered and a showing of its relevancy.

“Error is not shown in the exclusion of evidence unless the appellant brings before the appellate court a record that shows clearly not only what the evidence would have been if admitted, but also its relevancy; and where an appellant excepts to a court’s ruling excluding testimony of a witness, but does not go further and develop by bill of exceptions what the witness’s answer and testimony would have been, no error on the part of the trial court is demonstrated.” Swinney v. Winters, 532 S.W.2d 396, 402 (Tex. Civ.App.—San Antonio 1975, writ ref’d n. r. e.).

The record before the court does not establish that the trial court committed reversible error in the exclusion of this witness’s testimony. Rule 434, Texas Rules of Civil Procedure.

The contestant next presented the testimony of Mrs. Berath Jones, the notary public whose attesting affidavit was affixed to the will. In her affidavit Mrs. Jones had attested that the testatrix and the two subscribing witnesses, L. F. King and William T. Mixon, II, were known to her, that their names were subscribed to the will, and that they personally appeared before her and had been sworn. She attested that the testatrix had declared to her and to the witnesses in her presence that the instrument constituted her last will and testament, and had been made and executed by her as her free act and deed and for the purposes therein expressed. She further verified that each of the witnesses, under oath and in the presence and hearing of the testatrix, testified to the testatrix’ declarations that the instrument constituted her last will and testament, that she had executed it as such, and wanted each of them to sign it as a witness, which they did in her presence and at her request.

Upon direct examination by the contestant’s counsel, Mrs. Jones described the office where the will had been signed by the witnesses, and then she testified that Mrs. Nesmith was not present at the time the witnesses signed or at the time when she, Mrs. Jones, executed the attesting affidavit. Mrs. Jones further testified she had not had any conversation with Mrs. Nesmith with regard to the signing of the will and that to her knowledge Mrs. Nesmith was at her home when the will was witnessed.

On cross-examination Mrs. Jones testified that she had worked for Mr. Nesmith for over seventeen years, as his secretary and “Girl Friday” and that she did everything “from his appointments to contracts and sub-contracts, meeting the public, payroll, making coffee, even vacuuming the office.” She testified that on occasions she had even taken care of his little dog. At the time of trial Mrs. Jones was still in the employ of Mr. Nesmith and indicated her desire to continue to work for him. Mrs. Jones admitted that she had heard her employer say that he intended to set aside his wife’s will. After additional cross-examination, Mrs. Jones admitted that her testimony at the trial was in direct contradiction to the sworn statements contained in her attesting affidavit. She also conceded that she had given previous testimony on deposition that she could not then say whether the two attesting witnesses had signed the will in the presence of the testatrix.

One of the two attesting witnesses to the will, L. F. King, had died prior to the trial and his testimony was not presented. The deposition testimony of the other attesting witness, William T. Mixon, was, however, read into evidence by the contestant. Mr. Mixon testified that the testatrix had not been in the room at the time he signed the will. However, he subsequently qualified this testimony somewhat, saying that he could not think of a way she could have been present in the office at that time without his knowing it, and that he did not see her there. Mr. Mixon was an employee of Mr. Nesmith and the son of a friend of Mr. Nesmith. He admitted that Mr. Nes-mith had telephoned him prior to the taking of his deposition and told him that he wanted to break his wife’s will so that his former son-in-law and grandchildren would not get anything.

The contestant also offered the deposition testimony of one of the proponents‘of the will, Walter Drew Allen, who was formerly married to the contestant, Shirley Gasaway. Mr. Allen had worked for his father-in-law, Mr. Nesmith, starting as a draftsman and ending in the position of a vice president. He testified that he remembered the will having been executed at the company office, but he could not recall specifics with respect to the execution or the witnessing of the execution. He felt that he had been present, but he could not swear to it. He doesn’t recall seeing the testatrix, Mrs. Nes-mith, in the office at that time. He did not see the other witnesses sign their names to the will.

After a will has been duly admitted to probate, the burden is upon the contestant of the will to establish its invalidity. Renn v. Samos, 33 Tex. 760 (1870); Bell v. Bell, 248 S.W.2d 978 (Tex.Civ.App.—Amarillo 1952, writ ref’d n. r. e.); Crane v. Pierce, 257 S.W.2d 510 (Tex.Civ.App.—Dallas 1953, writ ref’d). Thus, in the case at bar, the contestant, rather than the proponents, carried the burden of proof.

The trial court expressly found that the testimony presented by the contestant with respect to the execution of the will was not believable and concluded that the contestant had failed to rebut by credible proof the prima facie validity of the will as evidenced by the self-proving affidavit executed in compliance with Section 59, Texas Probate Code. The court was entitled to view the testimony of the contestant’s witnesses in the light of their prior affidavits, and it was not required to believe their testimony. Its findings are supported by credible evidence of probative value and are not against the great weight and preponderance of the evidence. Upon finding that the contestant had failed to meet her burden of establishing the invalidity of the will, the trial court properly entered judgment for the proponents.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    William A. FANNON, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 5684.
    Court of Civil Appeals of Texas, Waco.
    Feb. 24, 1977.
    Rehearing Denied March 24, 1977.
    Frederick H. Shiver, Baker & Foreman, Dallas, for appellant.
    Stephen S. Livingston, Thompson, Knight, Simmons & Bullion, Dallas, for ap-pellee.
   OPINION

McDONALD, Chief Justice.

Plaintiff Fannon brought this suit to recover from defendant Travelers Insurance Company on a group health insurance policy for medical expenses incurred as a result of a heart attack.

Travelers denied coverage based upon a limitation contained in the policy.

All facts are stipulated. The policy was issued to plaintiff’s employer for its employees which included plaintiff. All premiums were paid, and the policy was in full force and effect. Plaintiff became 65 years old on May 31, 1970. From and after his 65th birthday he was a “Person Eligible Under Medicare” as that term is defined in the policy. In 1971 plaintiff suffered a heart attack which gave rise to medical expenses for which the policy provides benefits.

The benefits plaintiff claims he was entitled to receive under the policy were benefits which would have been received from Medicare, if he had enrolled in Medicare, but plaintiff did not enroll in the voluntary portion of Medicare and therefore said benefits were not received from Medicare.

If plaintiff is entitled to the benefits he seeks he is due $3,642.66 under the policy excluding penalty, interest and attorney’s fees. If plaintiff is not entitled to the benefits he seeks, he is due $149. under the policy, excluding penalty, interest and attorney’s fees.

The trial court rendered judgment for plaintiff for $149., thus holding the limitation contained in the policy precluded plaintiff’s claim for the $3,642.66.

Plaintiff appeals contending the trial court erred:

1) In concluding the policy not ambiguous.
2) In concluding plaintiff not entitled to the benefits sued for.
3) In concluding plaintiff not entitled to statutory penalty and attorney’s fees under Article 3.62 of the Insurance Code.

It is stipulated plaintiff is a person “Eligible Under Medicare”, had medical expenses, and unless precluded by the policy limitation, is entitled to $3,642.66 under the policy.

Policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer. Exceptions and words of limitation will be strictly construed against the insurer. And whenever a controverted policy provision can be given two reasonable meanings, the court must choose that interpretation which will favor the insured’s recovery. Continental Cas. Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762; United Service Automobile Ass’n v. Miles, 139 Tex. 138, 161 S.W.2d 1048; Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379; Indemnity Marine Assurance Co. v. The Citizens National Bank of Cameron, Tex.Civ.App. (Waco) NRE, 463 S.W.2d 290.

Article I, Section 6 of the policy defines “Person Eligible Under Medicare” as an “Employee * * * who is enrolled under the voluntary portion of Medicare or has been eligible to enroll under such voluntary portion.”

Article VI Eligibility For Benefits, Section 4(f) provides: “In no event will Employee Benefits be payable — for any confinement, treatment, services or supplies furnished an Employee who is a Person Eligible Under Medicare if benefits are provided, for such confinement, treatment, services or supplies under Medicare, except that Employee Benefits will be payable in accordance with Paragraphs 2 and 3 above, but only to the extent necessary so that the sum of the benefits payable hereunder and under Medicare shall equal the benefits which would have been payable hereunder if this subparagraph were not applicable.”

Thus succinctly stated Article I Section 6 defines: “Person Eligible Under Medicare” as an employee who is 1) enrolled under Medicare, or 2) has been eligible to enroll under Medicare. (And it is stipulated plaintiff is a “Person Eligible Under Medicare”).

And Article VI Section 4(f) thus provides: In no event will benefits be payable for medical expense furnished an employee who is eligible under Medicare if benefits are provided1 for such medical expense “under Medicare”.

Travelers asserts Section 4(f) is clear that the policy does not provide benefits which an employee could have received from Medicare if he had been enrolled under Medicare.

Plaintiff asserts Section 4(f) ambiguous, and could reasonably mean that benefits will not be paid if benefits are actually provided the employee by Medicare.

We think the policy provision ambig- . uous, and that under the cases cited, must be resolved in favor of the insured. Moreover, Travelers itself must have regarded Article VI Section 4(f) ambiguous because subsequent to the policy contract it published an explanatory pamphlet purporting to interpret Section 4(f) as it contends for here. (The stipulations reflect such pamphlet was not a part of the policy contract, was not distributed to all qualifying employees, but was distributed upon specific request, and that plaintiff never requested a copy of the pamphlet).

All plaintiff’s points are sustained.

The judgment is reversed and remanded with instruction to render judgment for plaintiff for $3,642.66 plus statutory penalty, and if plaintiff tenders evidence of attorney’s fees, for reasonable attorney’s fees.

REVERSED AND REMANDED.

      . Emphasis added.


author: MASSEY, Chief Justice.

text:
    LAW OFFICES OF YARBOROUGH & POPE, INC., et al., v. NATIONAL AUTOMOBILE & CASUALTY INSURANCE COMPANY et al.
    No. 17897.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 25, 1977.
    Rehearing Denied March 25, 1977.

      Yarborough & Pope, Inc., and Charles D. Yarborough, Bedford, for appellants.
    McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk, and Sam J. Day, Fort Worth, for appellee Insurance Company.
    Parker & Candler, Bedford, for appellee Carter.
   OPINION

MASSEY, Chief Justice.

Involved is applicability, upon the dismissal of a case by the trial court, of provisions of law, as follows:

T.R.C.P. 93(n)(3) (“Certain Pleas to be Verified”) provides:

“In the trial of any case appealed to the court from the Industrial Accident Board the following, if pleaded, shall be presumed to be true as pleaded and have been done and filed in legal time and manner, unless denied by verified pleadings:

“(3) Award of the Board.” (Emphasis supplied.)

It was pursuant to hearing of what amounted to a defendant insurer’s plea to the jurisdiction of the court and motion to dismiss the plaintiffs’ case (allegedly by appeal from a final ruling and decision of the Industrial Accident Board) that the trial court dismissed the case. It was from the order of dismissal that plaintiffs appealed.

We affirm.

The determinative question is the applicability of the above quoted section of Rule 93 upon a hearing of a plea to the jurisdiction by defendant insurer. In due order of pleading under Texas practice a plea to the jurisdiction of the court is preliminary to a plea to the merits of plaintiff’s suit, and, where heard and considered by the court, one to be treated as having been tried preliminary to any hearing of any other aspect of the case whether or not that was the actual form of the court proceedings. Especially is this true where the plea is sustained.

There seems to be no doubt of the intention that the Rule have application in an instance where the defendant’s pleading should be construed as going to the merits of the action; that a “pleaded award of the Board” in such a case was meant to be treated as confessed unless verified denial be filed.

In the instant case the plaintiffs had been the attorneys for one E. B. Carter in proceedings before the Industrial Accident Board. Such was not true as applied to the proceedings in the trial court, to which Carter had been named as a party defendant. Objective of plaintiffs’ suit was to recover 25% of the total award to Carter as their rightful attorney’s fees rather than the 5% apparently intended by the Board. They plead that there had been a final and ap-pealable award. The purported award was not incorporated in the pleadings.

The instant litigation has not been the only occasion for plaintiffs’ complaint. They sought at an earlier time to compel action by the Industrial Accident Board. Yarborough v. Industrial Acc. Bd., 538 S.W.2d 19 (Tex.Civ.App.-Austin 1976, writ ref’d n. r. e.).

Here the insurer defendant, National Automobile & Casualty Insurance Company, filed what amounted to a plea to the jurisdiction of the court, in which it moved for dismissal of the plaintiffs’ case. Defendant did not verify its plea. Though not referred to in Rule 93 it has long been considered by courts in Texas that such a plea must be verified. However, the failure to verify such a plea may be waived expressly or by implication, as by failure to object because of the failure. See Sparks v. Bolton, 335 S.W.2d 780, 785 (Tex.Civ.App.-Dallas 1960, no writ history) citing McDonald, Texas Civil Practice; 46 Tex. Jur.2d, p. 116, “Pleading”, § 244 “(Verification)—In General”, and at p. 145, § 258, “Objections for nonverification”; 45 Tex. Jur.2d, p. 759, “Pleading”, § 193, “(Nonveri-fication or Defective Verification—In General”.

Hearing upon the defendant insurer’s plea to the jurisdiction was held by the trial court without objection of the plaintiffs’ attorney firm, and, to be presumed pursuant to their waiver of complaint, the defendant was permitted to make proof by evidence in support of its plea and motion. There was no motion to strike the plea. Since there has not been any statement of facts brought forward from the trial court, we are obliged to treat the evidence adduced upon its hearing as having supported the allegations of defendant in the display of facts evidencing that the trial court lacked jurisdiction.

Our holding is that the provisions of T.R.C.P. 93(n)(3) is without application to a plea to the jurisdiction of the court; that where the case before the trial court is one which has reached it pursuant to purported appeal from an award of the Industrial Accident Board any failure of the defendant to verify its plea to the jurisdiction of the court is not to be tested by that Rule.

Each point of error has been considered. All are overruled.


text:
    VICTOR EQUIPMENT COMPANY v. DENTON INDEPENDENT SCHOOL DISTRICT et al.
    No. 17810.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 25, 1977.
    Rehearing Denied March 25, 1977.
    Kelsey & Wood, and Richard H. Kelsey, Denton, for appellant.
    George Hopkins, Denton, for appellee Denton Independent School District.
    Paul C. Isham, Denton, for appellee City of Denton.
   OPINION

MASSEY, Chief Justice.

The appeal is from a judgment for defendants, Denton Independent School District and the City of Denton, Texas, in denial of petition of plaintiff, Victor Equipment Company, a corporation, for injunction against levy, assessment, or collection of personal property ad valorem taxes on certain of its property, and in refusal of plaintiff’s request for declaratory judgment relative to rights, duties, liabilities and responsibilities of all parties.

We affirm.

For the year of 1975 both the City and the School District sought taxes of Victor Equipment in the amount of $103,870.37, in part at least upon personal property which such plaintiff contends was improperly assessed and levied, being the portion of the total tax demand it denies obligation to pay.

Involved is the “Free Port Law”, enacted by the legislature in 1963, viz:

“All property consigned to a consignee in this State from outside this State to be forwarded to a point outside this State, which is entitled under the tariffs, rules, and regulations approved by the Interstate Commerce Commission to be forwarded at through rates from the point of origin to the point of destination, if not detained within this State for a period of more than ninety (90) days, shall be deemed to be property moving in interstate commerce, and no such property shall be subject to taxation in this State; provided, that goods, wares and merchandise, whether or not moving on through rates, shall be deemed to move in interstate commerce, and not (to be) subject to taxation in this State if not detained more than nine (9) months where such goods, wares and merchandise are so held for assembly, storage, manufacturing, processing or fabricating purposes; providing further that personal property consigned for sale within this State must be assessed as any other personal property. Provided further, that all laws and parts of laws in conflict herewith are hereby repealed to the extent of such conflict only.” (Emphasis supplied to narrow issues to those actually involved on the instant appeal.) V.A.T.S. Art. 7150f, “(Taxation)— Property moving in interstate commerce”.

Victor Equipment contends by the Texas article the subject property is not available for purposes of Texas taxation; furthermore, it avers its contention to be supported by a case of the Supreme Court of Oklahoma. In re Assess. of 1969, Crescent Precision Prod. Inc., 514 P.2d 933 (Okla.Sup.1973). In that case provisions identical to those under scrutiny were part of the Oklahoma Constitution. In Texas the provisions are statutory.

It appears that the Oklahoma case dealt with property shipped by out-of-state consignors to Crescent in Oklahoma. In Oklahoma, Crescent proceeded to process the same by manufacturing, and then after processing but within nine (9) months from receipt of all property altered or assembled, etc., shipped the product to out-of-state consignees. It was in the capacity of “consign- or” owner that Crescent made its own shipments. There was no indication of incorporation into Crescent’s finished product any property received from intrastate consignors.

In our case the contrary was true. In any event there was inability by Victor Equipment to show any instance where it was not, as well as inability to make apportionment in its finished product of the parts incorporated therein which represented property received from those of its suppliers who were out-of-state consignors shipping to Victor Equipment. The Oklahoma case may therefore be distinguished. Even were the situations identical, we would refuse to honor the construction of the Oklahoma court.

Construction of Art. 7150f was the subject of Attorney General Opinion No. H-479, dated December 18, 1974. The portion thereof which relates to the nine (9) month retention of goods, wares and merchandise held for assembly, manufacturing, processing or fabricating purposes is approved and adopted. ¿We quote therefrom:

“ . . . While this portion is not expressly limited to consigned materials, it is our opinion that the statute should be so construed. Ordinarily ‘a proviso is limited to the clause that next precedes it and to which it is attached . . . ’ White v. City of Quanah [88 Tex. 14], 28 S.W. 1065 (Tex.Sup.1894); Fenet v. McCuistion [105 Tex. 299], 147 S.W. 867 (Tex.Sup.1912); Galveston & W. Ry. Co. v. City of Galveston, 155 S.W. 273 (Tex.Civ.App.—Galveston 1913, no writ). In addition, tax exemptions are to be strictly construed against the exemption. Radio Bible Hour, Inc. v. Hurst-Euless Independent School District, 341 S.W.2d 467 (Tex.Civ.App.—Ft. Worth 1960, writ ref. n.r.e.); City of Amarillo v. Love, 356 S.W.2d 325 (Tex.Civ.App.—Amarillo 1962, writ ref. n.r.e.). The second portion of article 7150f should therefore be construed as modifying the first portion and consequently exempts only consigned goods. .

“Whether property is consigned rather than sold is a question of fact. Consigned property is that which is deposited with another for care or sale, title to which remains with the consignor. Sturm v. Boker, 150 U.S. 312 [14 S.Ct. 99, 37 L.Ed. 1093] (1893); Dittmer v. Norman, 118 Mass. 319 (Sup.Jud.Ct.Mass.1875); Rolker v. Great Western Ins. Co., N.Y., 4 Abb.App.Dec. 76 (N.Y.1866); Edwards v. Baldwin Piano Co. [79 Fla. 143], 83 So. 915 (Fla.1920); F. F. Ide Mfg. Co. v. Sager Mfg. Co., 82 Ill.App. 685 (Ill.1899). Therefore article 7510f excepts from taxation only that property deposited with another for care, processing, or sale outside this State, title to which is not transferred to the recipient of the property.”

On trial below only one witness testified, that being Rudy Menn, controller for Victor Equipment Company. At the conclusion of his testimony Victor Equipment rested, and at the same time the City and the School District rested.

We are of the opinion, and hold, that the witness’ credibility was east in issue. At all material times and at time of trial Mr. Menn was an employee of Victor Equipment, charged by the corporation to handle its ad valorem tax matters with the City and School District. The facts to which the witness testified were not such which if untrue might have been readily contradicted by either defendant. As the fact-finder the trial court was entitled to refuse to believe his testimony. James T. Taylor & Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371, 376 (1960).

The importance of that to which Mr. Menn testified could only have had relation to personal property consigned from out-of-state consignors to Victor Equipment as owner/consignee, for eventual delivery to ultimate consignees outside the State of Texas (after work was performed by Victor Equipment in interruption of the shipment), and by our statutory construction an owner/consignee is not aided thereby. Even if Menn’s testimony had been believed the judgment of the trial court would have been proper. There was absence of property identification in any event, plus admitted intermingling and/or integration of property received from “in state” consignors with that received from “out-of-state” consignors. Actually the only thing which Victor Equipment proved was that within nine (9) months there was actual complete “turn over” of inventory accumulated as consignee from consignors interstate and intrastate. That proof did not show entitlement to relief.

Victor Equipment failed to make out a case for injunction. This was because of its failure to identify any property sought to be taxed which was on consignment from a “consignor” without the State to an ultimate “consignee” without the State, and, pursuant to a transaction where as result of processing by Victor Equipment in Texas delivery to the ultimate consignee had not been delayed for more than a nine (9) month period by the “pause” in Texas for that purpose.

It was further obvious, and actually represented by Mr. Menn, that even if some individual transaction might have enabled property to be segregated it was nevertheless property of which Victor Equipment was original “consignee” and owner, and as applied to which, upon resale to another, it would become “consignor”.

A complaint by point of error is that we should reverse and remand because of the refusal by the trial court to render a judgment which spelled out the rights, duties, liabilities and responsibilities of the parties. See V.A.T.S. Art. 2524-1, “Uniform Declaratory Judgments Act”; and 19 Tex.Jur.2d p. 140, et seq., under the subject chapter on “Declaratory Relief”.

What Victor Equipment desired from the trial court was a construction of Article 7150f, with application of the same to the facts and circumstances displayed by the evidence. Here there has been rendered a judgment which by necessary implication included whatever declaration there might be to which Victor Equipment was entitled. Victor Equipment sought to avail itself of benefits by the statutory article; the trial court, in its denial of injunction, necessarily held that by the facts proved it was not entitled to the benefits.

By the statutory construction made of Art. 7150f set out in this opinion Victor Equipment knows the law, at least until such time there is contrary construction by the Supreme Court. A fundamental principle is that no occasion for remand to the trial court is presented where to do so would be of no avail to a complainant.

All points of error presented have been severally considered. All are overruled.


author: MOORE, Justice.

text:
    CITY OF SAN AUGUSTINE, Appellant, v. ROY W. GREEN COMPANY, Appellee.
    No. 928.
    Court of Civil Appeals of Texas, Tyler.
    March 3, 1977.

      John W. Mitchell, San Augustine, for appellant.
    Kenneth L. Ross, Sharp, Ward & Ross, Longview, for appellee.
   MOORE, Justice.

Plaintiff, Roy W. Green Company, brought suit against defendant, City of San Augustine, for $57,736.87 the balance allegedly due under a contract for the construction of a sanitary sewer system for the City. The City answered with a general denial and set up certain offsets and credits allegedly due it for overcharges on equipment rental and for liquidated damages for failure to timely complete the contract. The City also filed a counterclaim against the plaintiff for damages to its existing sewer system in the amount of $1,000.00, and for the sum of $2,000.00 for damages to its streets caused by plaintiff in constructing the sewer system. Trial was before a jury. In response to the twenty special issues, the jury returned a verdict favorable to the City on all twenty issues. Prior to entry of judgment the trial court granted plaintiff’s motion to disregard the jury’s findings to Special Issue 2 and Special Issues 7-14 and entered judgment for plaintiff Roy W. Green Company for the sum of $31,799.19 plus various sums for interest on certain installment payments on which the City failed to make timely payment, together with attorney’s fees. The trial court refused to grant plaintiff’s motion to disregard the jury’s findings to Special Issues 16 and 19 and entered judgment granting the City an offset in the amount of $3,000 on its cross claim for damages. The City of San Augustine perfected this appeal. We affirm.

Under points one through three, the City contends the trial court erred in disregarding Special Issues 7, 8, 9, 10, 11 and 20 and granting plaintiff a judgment notwithstanding the verdict because the City says there was evidence of probative force to support each of said issues. In reply, plaintiff, Roy W. Green Company, takes the position that since neither party pled that the contract was ambiguous, the interpretation of the legal obligations arising under the contract became a matter for the trial court. Consequently, the plaintiff argues that the jury’s findings are superfluous and immaterial and the trial court properly disregarded the same. We sustain plaintiff’s contention.

The record reveals that .the parties entered into the contract on April 5, 1972. The contract was for the completion of a sewer construction project which had been abandoned by a previous contractor. The work involved not only the construction of new facilities on a fixed bid basis but also construction and repairs of the portion already installed by the former contractor which was to be done on a cost plus basis. Shortly after work began the City and Roy W. Green Company began to differ as to the computation of the cost plus charges made by plaintiff on equipment rental rates. The City took the position that under Section 6.01 of the General Conditions of Agreement, the equipment rental rates were to be billed in accordance with the Associated General Contractors manual. Roy W. Green Company took the position that the contract provided that the equipment rental rates were to be based on the Associated Equipment Distributors manual called for in the Notice to Contractors and accordingly billed the City at the rates specified therein. The City objected and took the position that the rates charged amounted to approximately $32,000.00 more than the rates specified in the Associated General Contractors manual. Thus, the issue before the trial court was which of the two rate books was designated by the contractual document for computing equipment rental rates.

In response to Special Issues 7, 8, 9,10,11 and 20, the jury found (1) that Roy W. Green Company failed to use the rate book specified by the contract, (2) that such failure resulted in an overbilling, (3) that such overbilling amounted to $32,338.91, (4) that such overbilling made it necessary for the City to employ an engineering firm to review the billing submitted to the City, (5) that the amount of money that would fairly and reasonably compensate the City for the fees charged by the engineering firm was $1,208.66, and (6) that the balance due Roy W. Green Company for the work performed on the contract was “none.”

The written agreement contained the following provision:

“1.02 CONTRACT DOCUMENTS. The Contract Documents shall consist of the Notice to Contractors (Advertisement), Special Conditions (Instructions to Bidders), Proposal, signed Agreement, Performance and Payment Bonds (when required), Special Bonds (when required), General Conditions of the Agreement, Technical Specifications, Plans and all modifications thereof incorporated in any of the documents before execution of the Agreement.
“The Contract Documents are complementary, and what is called for by any one shall be as binding as if called for by all. In case of conflict between any of the Contract Documents, priority of interpretation shall be in the following order: signed Agreement; Performance and Payment Bonds; Special Bonds (if any); Proposal; Special Conditions of Agreement; Notice to Contractors; Technical Specifications; Plans, and General Conditions of Agreement.”

The well settled rule is that when a building contract is in writing and is free from ambiguity, its construction is a question for the court and not for the jury. Dearing & Sons v. Texas Construction Co., 1 S.W.2d 265 (Tex.Comm.App. 1928); Signs v. Bankers Life & Cas. Co., 340 S.W.2d 67 (Tex.Civ.App.—Dallas 1960, no writ); see 10 Tex.Jur.2d sec. 92. Where a contract is so worded that it is susceptible to a certain legal meaning it is not ambiguous. Dickey v. Bird, 366 S.W.2d 859 (Tex.Civ.App.—Amarillo 1963, writ ref’d n. r. e.). Nowhere in its pleading did the City assert that the contract was ambiguous.

Upon applying the foregoing rules of law to the above quoted provisions of the contract, we are of the opinion that the contract is susceptible to a certain legal meaning. It specifically states that the provisions contained in the Notice to Contractors take priority over any conflict with the General Conditions of Agreement relied on by the City. Therefore, the provisions of the Notice to Contractors relied on by Roy W. Green Company take priority over the General Conditions of Agreement relied on by the City. It is without dispute that plaintiff billed the City in accordance with the rates specified in the Notice to Contractors and the mathematical computations of the amount are not in question.

The judgment recites that Roy W. Green Company used the correct equipment rental rates and, in substance, recites that the findings of the jury were immaterial. A jury finding on an immaterial issue should be disregarded by the trial court since it cannot affect the judgment to be entered. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952); First Am. Life Ins. Co. v. Slaughter, 400 S.W.2d 590 (Tex.Civ.App.—Houston 1966, writ ref’d n. r. e.). In this case section 1.02 of the contract makes it clear that in the event of a dispute over the method of computing equipment rental, the method specified in the Notice to Contractors will control over other contract documents subsequently mentioned therein. The interpretation of the contract was a matter to be determined by the court. Therefore, it follows that the court properly disregarded the jury’s findings on the special issues in question. The City’s points one through three are overruled.

Under the fourth and fifth points, the City contends that the court erred in awarding the plaintiff interest on certain installment payments not timely paid in accordance with the contract. The City contends that there is no evidence, and alternatively, that the evidence is insufficient to support a judgment for interest on past due installment payments.

The contract provides as follows:

“5:03 PARTIAL PAYMENTS. On or before the tenth day of each month, the ENGINEER shall prepare a statement showing as completely as practicable the total value of the work done by the CONTRACTOR up to and including the last day of the preceding month; said statement shall also include the value of all sound materials delivered on the site of the work that are to be fabricated into the work.
“The OWNER shall then pay the CONTRACTOR on or before the fifteenth day of the current month the total amount of the ENGINEER’S statement, less ten percent (10%) of the amount thereof, which ten percent (10%) shall be retained until final payment and, further, less all previous payments and all further sums that may be retained by the OWNER under the terms of this Agreement. .
“5.08 DELAYED PAYMENTS. Should the OWNER fail to make payment to the CONTRACTOR of the sum named in any partial or final statement when payment is due or should the ENGINEER fail to issue any statement on or before the date above provided, then the OWNER shall pay to the CONTRACTOR, in addition to the sum shown as due by such statement, interest thereon at the rate of six percent (6%) per annum, unless otherwise specified, from date due as provided under ‘Partial Payments’ and ‘Final Payments,’ until fully paid, which shall fully liquidate any injury to the CONTRACTOR growing out of such delay in payment, . .

The trial court awarded judgment to Roy W. Green Company for 6% interest on: $81,947.63 from September 15, 1972 until April 2, 1973; $48,049.29 from October 15, 1972 until April 2, 1973; $10,994.22 from November 15, 1972 until April 2, 1973; $9,291.54 from December 15, 1972 until April 2, 1973; $13,829.36 from January 15, 1973 until April 2, 1973; $209,691.19 from April 3, 1973 until June 11, 1973; $202,-959.87 from June 12, 1973 until February 14, 1974; and $57,736.87 from February 15, 1974 until date of Judgment.

Plaintiff offered in evidence the estimates submitted to the City covering each of the time periods shown above. Dan Cook, the job supervisor for Roy W. Green Company, testified that no payments were received between August 1972 and June 11, 1973 at which time the company was paid the sum of $6,731.32. He further testified that the City sent a check for $145,223.00 in February 1974 leaving a balance due and owing of $57,736.87 for which amount the company brought suit. The fact that the City did not make timely payments on the installment estimates is undisputed.

The well established rule is that where damages are complete at a definite time and the amount is determined by fixed rules of evidence and known standards of value, interest is recoverable as a matter of law from the date of the accrual of the cause of action. Davidson v. Clearman, 391 S.W.2d 48 (Tex.1965); Statler Hotels v. Herbert Rosenthal Jewelry Corp., 351 S.W.2d 579 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.). The payment of interest on past due installments amounted to a contractual undertaking on the part of the City. The judgment for interest on the delayed payments amounts to nothing more than the enforcement of the terms of the contract. Since the amount thereof is not in controversy, it follows that the judgment finds support both in law and in fact. The City’s fourth point is overruled.

After a careful review of the entire record, and after considering and weighing all the evidence, we have concluded that we would not be justified in holding that the court’s ruling in this regard is against the great weight and preponderance of the evidence. The City’s fifth point is accordingly overruled.

This brings us to the cross point brought forward by plaintiff, Roy W. Green Company, complaining of that part of the judgment awarding the City damages on its cross claim for the sum of $3,000.00 by way of an offset. Plaintiff contends that the court erred in refusing to disregard the jury’s findings to Special Issues Nos. 16 and 19 because there was no evidence of probative force to support the jury’s findings on either issue.

At the outset we are confronted with the City’s motion to dismiss the cross point for want of jurisdiction. In support of such motion the City contends that its appeal was limited to the severable portion of the judgment adversely affecting the City. Therefore, the City says that since plaintiff did not perfect a separate appeal, the judgment in favor of the City on its cross claim is not before us and this court has no jurisdiction to consider a cross point attacking such judgment.

While the record reveals that the City attempted to limit the scope of appeal to only that portion of the judgment adverse to it, there is nothing in the record to indicate that notice of such limitation was ever served on Roy W. Green Company and the City does not so contend. Rule 353(c), Texas Rules of Civil Procedure, which was in effect at the time the City attempted to limit the scope of its appeal read as follows:

“(c) No attempt to limit the scope of an appeal shall be effective as to a party adverse to the appellant unless the sever-able portion of the judgment from which the appeal is taken is designated in a separate notice served upon such adverse party and filed with the clerk within fifteen days after judgment or order overruling motion for new trial is rendered.”

In the absence of a showing that notice of limitation of appeal was served on the plaintiff, Roy W. Green Company, the attempted limitation never became effective. Under these circumstances the entire record comes forward on appeal. Rule 353(c), supra; Commissioner’s Court of Harris County v. Moore, 525 S.W.2d 926, 929 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ); Humble Oil and Refining Co. v. City of Georgetown, 428 S.W.2d 405, 406 (Tex.Civ.App.—Austin 1968, no writ); Gerst v. Guardian Savings and Loan Ass’n, 427 S.W.2d 382, 391 (Tex.Civ.App.—Austin 1968), modified, 434 S.W.2d 113 (Tex.1968). The cross point of Roy W. Green Company is therefore properly before us for consideration and the City’s motion to dismiss the same for want of jurisdiction is overruled.

In determining whether the trial court erred in refusing to disregard the jury’s answers to Issues 16 and 19 and in refusing to grant a motion for judgment notwithstanding the verdict on the City’s cross claim, the inquiry is whether there is any evidence of probative force to support the verdict of the jury. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974); Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970); Hartford Accident & Indem. Co. v. Spain, 520 S.W.2d 853, 855 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.). In determining whether there is any evidence of probative force to support the verdict, we are required to view the evidence in the light most favorable to the party against whom the motion is sought and every reasonable intendment deducible from the evidence is to be indulged in that party’s favor. Douglass v. Panama, Inc., supra; Hartford Accident & Indem. Co. v. Spain, supra; Linder v. Citizens St. Bank, 528 S.W.2d 90, 91 (Tex.Civ.App.—Tyler 1975, no writ; Shoppers World v. Villarreal, 518 S.W.2d 913, 918 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.).

Under the terms of the contract plaintiff was obligated to repair all existing sewer lines, streets and private driveways damaged as a result of the work. Plaintiff does not attack the jury’s findings that damages were caused to existing sewer lines, streets and private driveways as a result of the work. The attack on the judgment is confined to the sole contention that there was no evidence to support the amount of damages found by the jury.

Alton Shaw, the City Manager, testified that although he had not kept a time sheet covering the City’s cost of repairing the sewer lines, he estimated that the City had spent roughly $1,000.00 in making the repairs. He testified his estimate was based on repairs made at nine different locations each of which required the work of two men, the use of a backhoe, and a pickup truck, as well as some materials. He testified that while he could not document every nut and bolt, he felt that his estimate of $1,000.00 was a good, fair estimate of the cost of making the repairs to the sewer lines.

With regard to the repairs to the city streets and private driveways, Shaw testified that some of the streets and driveways were rendered impassable and it became necessary for the City to utilize men and machinery to make the necessary repairs. He testified that although he could not document the number of man-hours required or the equipment used, he was of the opinion the City expended the sum of $2,000.00 and he felt this was a real conservative estimate of the costs incurred by the City in making street and driveway repairs. Plaintiff offered no testimony refuting the testimony of the City Manager, Alton Shaw.

Reasonable certainty as to the amount of damages is all that is required of the plaintiff and he need not show the amount of the loss or damage with mathematical exactness. Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1099 (1938); H. B. Zackry Co. v. Ceco Steel Products Corp., 404 S.W.2d 113, 131 (Tex.Civ.App.—Eastland 1966, writ ref’d n. r. e.). The rule is that if the evidence presented by the injured plaintiff is sufficient to afford a reasonable basis for estimating his loss, he is not to be denied a recovery because he is unable to prove the exact amount of the damages. Gulf Coast Investment Corp. v. Rothman, 506 S.W.2d 856, 858 (Tex.1974); Hindman v. Texas Lime Company, 157 Tex. 592, 305 S.W.2d 947, 953 (1957). Viewing the evidence presented by the City in a light most favorable to the verdict and judgment, we have concluded there was some evidence on which the jury could have based its findings as to the amount of damages suffered by the City. Accordingly, the cross point presented by plaintiff is overruled.

The judgment of the trial court is affirmed.

      . “SPECIAL ISSUE NO. 16: FIND FROM A PREPONDERANCE OF THE EVIDENCE the amount of such expenditures made by the Defendant City of San Augustine in order to restore such existing sewer lines to a usable condition.
      “Answer in dollars and cents, if any.
      “ANSWER: $1,000.00”

      . “SPECIAL ISSUE NO. 19: FIND FROM A PREPONDERANCE OF THE EVIDENCE the sum of money, if any, which would fairly and reasonably compensate the Defendant City of San Augustine for its losses of time, labor, materials and use of machinery in connection with the restoration of such streets and drives to a passable condition.
      “Answer in dollars and cents, if any.
      “ANSWER: $2,000.00”


author: CORNELIUS, Justice.

text:
    Thomas CLEVELAND, Appellant, v. Joyce HENSLEY, Appellee.
    No. 8414.
    Court of Civil Appeals of Texas, Texarkana.
    March 8, 1977.

      Hollie G. McClain, Gilmer, for appellant.
    Alvin N. Flynn, Charles H. Clark, Tyler, for appellee.
   CORNELIUS, Justice.

Mrs. Joyce Hensley, appellee, filed this trespass to try title suit against appellant, Thomas Cleveland, to recover title to approximately two acres of land in Big Sandy, Texas. She claimed title through Sallie Turner whom she alleged had perfected title to the land by adverse possession. Appellant Cleveland was the holder of the record title. He succeeded to the title of his grandfather, Albert Cleveland, who purchased the land in 1887. After a jury trial appellee was awarded judgment.

Some of the Cleveland family lived in a house on the land in question until about 1921. Some time after 1921, but before 1932, the house came to be occupied by Mrs. Sallie Turner. She resided on the property until about 1962. She made some repairs on the house, had water and electricity installed, maintained the fence and kept a garden. She died in 1962. Without identifying any specific property, Mrs. Turner’s will devised all of her property to her brother, Rice Price, Jr. In settlement of a debt owed by Mrs. Turner, Rice Price, Jr. conveyed to Dr. Henry Hensley whatever interest Mrs. Turner had in the property in question. Dr Hensley died in 1963 and his property was devised to his wife, the appel-lee. When appellant, who was then a resident of Minnesota, discovered in 1963 that appellee was claiming the land, he wrote her, identified himself as a descendant of the original owner and requested the opportunity to buy the property. His offer was refused. Appellant then consulted with his attorney and was advised that record title was still in the Cleveland heirs. He acquired the interests of the other heirs, took possession, razed the old house and located his mobile home on the property. Appellee then filed suit.

In answer to special issues, the jury found that (1) appellee and those under whom she claimed held peaceable and adverse possession of the land for more than ten years prior to Mrs. Turner’s death in 1962, (2) Mrs. Turner and her husband entered into possession of the land pursuant to a landlord-tenant agreement with the Clevelands, (3) Mrs. Turner and her husband repudiated the landlord-tenant agreement and claimed adversely to the Cleve-lands, (4) the possession of Mrs. Turner was of such unequivocal notoriety that the appellant would be presumed to have notice of such adverse claim and possession, (5) appellant knew or should have known that Mrs. Turner was claiming the land adversely to him or his predecessors in title, and (6) the Clevelands had not held adverse possession of the property. Upon these answers the trial court concluded that Mrs. Turner had matured title to the land in question by adverse possession under the provisions of Article 5510, Tex.Rev.Civ.Stat.Ann., and awarded title and possession to appellee as her successor in title.

Appellant assigns seven points of error. The first six generally assert there is no evidence or insufficient evidence to support the jury’s findings that Mrs. Turner repudiated the landlord-tenant relationship and possessed the land under a claim of right which was adverse to the Clevelands. The seventh point complains of the exclusion of a portion of the testimony of Mrs. Locust relating to statements made by Mrs. Turner concerning the nature of her possession.

As previously noted, the jury found that when Mrs. Turner entered into possession of the land she did so as the tenant of the Clevelands. Appellee does not attack that finding and it has ample support in the evidence. Testimony was admitted that Mrs. Turner took possession of the property to “keep it up” and look after it for the Clevelands. It is' not necessary that there be a rental arrangement for a landlord-tenant relationship to exist for the purposes of the adverse possession statutes. It is sufficient if the owner consents to the occupancy thereof and the occupant holds in recognition or subordination to the title of the owner. Emporia Lumber Co. v. Tucker, Tex.Civ.App., 120 S.W. 1082, rev. 103 Tex. 547, 131 S.W. 408 (1910); 35 Tex.Jur.2d, Landlord and Tenant, Sec. 1, p. 484.

The law exacts from a tenant the utmost good faith in carrying out his agreement of tenancy. Houk v. Kirby Petroleum Co., 65 S.W.2d 496 (Tex.Comm.App.1933, judgmt. adopted). Once the landlord-tenant relationship is established, possession of the tenant will not be considered adverse to the owner as required by Articles 5510 and 5515 unless and until (1) there is a repudiation of the relationship and the assertion of a claim of right adverse to the owner, and (2) notice of such repudiation and adverse claim is given to the owner. Killough v. Hinds, 161 Tex. 178, 338 S.W.2d 707 (1960); Houk v. Kirby Petroleum Co., supra; Davis v. Lund, 41 S.W.2d 57 (Tex.Comm.App.1931, holding approved); Doherty v. Jensen, 174 S.W.2d 77 (Tex.Civ.App. Galveston 1943), rev’d in part, aff’d in part, 143 Tex. 64, 183 S.W.2d 453 (Tex.1944). If the rule were otherwise, it would be extremely hazardous for an owner to enter into any landlord-tenant relationship. Udell v. Peak, 70 Tex. 547, 7 S.W. 786 (1888); Keels v. Keels, 427 S.W.2d 913 (Tex.Civ.App. Tyler 1968, no writ). Notice of repudiation may be constructive, or as is sometimes said, may be proved by circumstantial evidence. Brown v. Bickford, 237 S.W .2d 763 (Tex.Civ.App. San Antonio 1951, writ ref’d n. r. e.). That is, even though there is no proof of actual notice the jury may infer that notice of repudiation has been brought home to the owner where there has been (1) long continued possession under claim of ownership and (2) non-assertion of claim by the true owner. Tex-Wis Company v. Johnson, 534 S.W.2d 895 (Tex.1976); Dominy v. Dominy, 305 S.W.2d 389 (Tex.Civ.App. Houston 1957, no writ); Killough v. Hinds, supra; Mauritz v. Thatcher, 140 S.W.2d 303 (Tex.Civ.App. Galveston 1940, writ ref’d). Notice of a claim of ownership on the part of the tenant which indicates that the landlord-tenant relationship has been repudiated may also be inferred from acts of the tenant which ordinarily would be expected of only an owner and which are inconsistent with the existence of the landlord-tenant relationship. Killough v. Hinds, supra; Houston Oil Co. of Texas v. Stepney, 187 S.W. 1078 (Tex.Civ.App. Beaumont 1916, writ ref’d). But there must be external circumstances disclosing the inward intent to claim the land adversely to the owner, for it is not the function of constructive notice to avoid the effects of actual notice, but rather to bring home to the owner knowledge of the assertion of an adverse claim. Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954); Titel v. Garland, 99 Tex. 201, 87 S.W. 1152 (1905); Brown v. Bickford, supra; Allen v. Sharp, 233 S.W.2d 485 (Tex.Civ.App. Fort Worth 1950, writ ref’d); Houston Oil Co. of Texas v. Stepney, supra.

In this case there was no direct evidence of repudiation or notice of an adverse claim. On the question of constructive notice, the appellee’s evidence was as follows:

The witness John Prothro testified that the Clevelands left the property somewhere around 1920 and that Sallie Turner and her husband moved in shortly thereafter. The Turners improved the house and kept the fence up, put in a window or two, maintained a corn patch and a garden, and Mrs. Turner had water and lights connected in her name when they first became available in the neighborhood in about 1936. He stated that for the last 30 or 40 years the property had been known as the Sallie Turner place but that neither Sallie nor Henry Turner had ever told him they were claiming the land as their own and he did not know if they did claim it. Colonel Price testified that Sallie Turner was his aunt and that he visited her frequently during the time she lived on the property and he lived in Chicago. He stated that she set out a tree and put a gate at the place; that she had a little garden and made a few repairs. He did not know how she came into possession of the land and she did not tell him, but she did tell him “I have got a home here” and that, after her husband died she told him “If you see a nice fellow, tell him I have got a home and everything here and I would like to have a husband.” Thomas Cleveland, the appellant, was called as an adverse witness. He testified that he visited Sallie Turner frequently when she lived in the house and while he was living out of state; that he understood that she paid some taxes on it (although there was no direct testimony or other evidence to that effect); and that he first found out that appellee claimed the property in 1963 or 1964 after Mrs. Turner had died in 1962. He further testified that he visited Mrs. Turner frequently while she lived in the place and that she never said anything about claiming the land.

The appellant’s evidence on the question was as follows: Nathaniel Harris testified that he knew Sallie Turner well for a number of years and actually stayed with her in the house for four or five years; that she told him the place belonged to Lee Cleveland but “she was just only living there— that she had a home living there as long as she lived.” He testified she told him several times that she didn’t own the place, “just living there, keep it up you know, live there as long as she lived.” He never heard the land called or referred to as the Sallie Turner place. Bessie Lee Hawkins testified that she lived across the street from Mrs. Turner and visited with her often; that Mrs. Turner told her she had a home there as long as she lived, but that it belonged to Mr. Cleveland. She said she had a home there as long as she “kept it up” and she would often tell the witness how pleased she was to have a place to stay. Mrs. Osby Locust testified that she lives right in front of the property in question and has lived there for forty or fifty years; that she had numerous conversations with Mrs. Sallie Turner and that Mrs. Turner told her that she didn’t own the land, that Lee Cleveland owned it and “she taken the place to see after it for him while he was away from home and he died and then his wife died so it fell to T.C.” An objection was made to the last statement on the ground it was a statement of law. The trial court sustained the objection and instructed the jury not to consider the last statement of the witness. There followed the following testimony:

“Q Did she ever tell you that she was or was not claiming the land?
A She wasn’t claiming it.
Q And who did she say was — it did belong to?
A It belonged to T.C.’s uncle, Lee Cleveland.
Q Did she ever tell you why she was living there or how she was living there?
A Sure.
Q And what did she tell you?”

An objection was then made and sustained.

“Q She did tell you that Cleveland owned the land?

A Sure, and that is who owned it.” On cross-examination by plaintiff’s counsel, the following testimony was elicited from Mrs. Locust:

“Q Now, Mrs. Locust, you have indicated that Lee Cleveland owned it?
A His uncle.
Q And Lee Cleveland, was he the one that was living there and moved away?
A Yes, got Sallie Turner to move there and take care of the place.
Q And did she take care of the place?
A Sure did.”

No objection was made to the foregoing testimony.

We have concluded that Mrs. Turner’s long continued possession and the circumstances surrounding such possession constitute some evidence that she repudiated her tenancy, but a review of all the evidence in the record compels the conclusion that the jury’s finding of such repudiation is contrary to the great weight and preponderance of the evidence. All of Mrs. Turner’s acts relating to the land were consistent with, rather than repugnant to, a continuation of the landlord-tenant relationship under which she initially took possession. See Killough v. Hinds, supra. From its external manifestations, her possession could properly be considered by the owners to be pursuant to their agreement and not adverse to their title. Orsborn v. Deep Rock Oil Corp., supra. When these facts are considered together with appellant’s specific evidence that Mrs. Turner continued to recognize the Clevelands’ title and claimed only the right to live in the house for the rest of her life, a finding that she repudiated the landlord-tenant agreement and claimed the title adversely to them appears to be so against the great weight and preponderance of the evidence as to be clearly wrong. Appellant’s point that the evidence is insufficient to support such a finding must therefore be sustained. Calvert, No Evidence and Insufficient Evidence, 38 Texas L.Rev. 366 (1960). The evidence is likewise insufficient to support the jury’s answers to Special Issues Nos. 4 and 5 relating to the notoriety of Mrs. Turner’s possession and the presumed knowledge on the part of the owners that an adverse claim was being asserted.

Appellant’s seventh point complains of the trial court’s exclusion of a portion of Mrs. Locust’s testimony. The excluded testimony, elicited by appellant on his bill of exceptions, was as follows:

“Q Mrs. Locust, would you tell us what Sallie Turner told you that the agreement between her and—
A And Lee?
Q Yes.
A She was there taking care of the place for him.
Q All right. Did she tell you anything else she was supposed to do?
A Nothing but just — she said she was staying there taking care of the place, they got her to take care of the place and see after the things they left in the house.
Q And did she tell you that she was not claiming the place?
A She didn’t claim it.”

The trial court excluded the evidence upon objection that it was an attempt to show the contents or terms of a written agreement which would be in violation of the best evidence rule or the parol evidence rule.

The excluded testimony was admissible and should have been allowed, not to show the terms of an alleged written agreement, but to reveal and explain the nature and character of Mrs. Turner’s possession. Declarations of an occupant which cast light upon the question of his possessory intent are admissible as verbal parts of his act of occupancy. Sanders v. Worthington, 382 S.W.2d 910 (Tex.1964); Southern Pine Lumber Company v. Hart, 161 Tex. 357, 340 S.W.2d 775 (1960); Warren v. Fredericks, 83 Tex. 380, 18 S.W. 750 (1892); Thompson v. Moor, 14 S.W.2d 803 (Tex.Comm.App. 1929, judgment adopted); Jackson v. Peters, 251 S.W.2d 544 (Tex.Civ.App. Fort Worth 1952, no writ); Jansen v. Kelley, 206 S.W.2d 856 (Tex.Civ.App. Austin 1947, writ ref’d n. r. e.); Nerio v. Christen, 189 S.W. 1038 (Tex.Civ.App. San Antonio 1916, no writ); 1 McCormick & Ray, Texas Evidence, Sec. 797 (2d ed. 1956).

Points of error 2, 4, 5 and 7 are sustained. All other points are overruled. The judgment of the trial court is reversed and the cause is remanded for a new trial.

      . “Art. 5510. Any person who has the right of action for the recovery of lands, tenements or hereditaments against another having peaceable and adverse possession thereof, cultivating, using or enjoying the same, shall institute his suit therefor within ten years next after his cause of action shall have accrued, and not afterward. . . . ” (Emphasis supplied.) “Art. 5515. ‘Adverse possession’ is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” (Emphasis supplied.)