text:
    Ex parte M. L. SMYERS, Relator.
    No. B-5497.
    Supreme Court of Texas.
    Nov. 12, 1975.
    George L. Preston, Paris, for relator.
    Saunders, Caldwell & Schmidt, J. Byron Saunders and Hugh Schmidt, Tyler, for respondent.
   REAVLEY, Justice.

M. L. Smyers seeks release from confinement in the Smith County jail, having been committed for contempt by the judge of the 7th Judicial District Court. Smyers was served with a temporary restraining order on August 8, by which he was restrained from transferring, conveying, secreting or disposing of several items of machinery including a used Caterpillar D6C tractor, serial number 76A3951. He concedes that he had possession of the tractor prior to receipt of service of the court’s order; his position is that he sold the tractor on August 4 and has since had neither control over it nor knowledge of its whereabouts. To obtain discharge by the Supreme Court, he must show conclusively by the record of the hearing in the trial court that he was unable to comply with the restraining order of that court. Ex Parte Arapis, 157 Tex. 627, 306 S.W.2d 884 (1957). The record before us does not entitle relator to his liberty.

The First National Bank of Whitehouse held a lien on this tractor to secure notes of Ray Claborn. The security agreement was properly filed with the Secretary of State. The Bank, unable to collect its notes or to obtain information from Claborn as to the location of the tractor, brought suit in Smith County. When investigation led to Smyers, he was made a defendant in the suit and the temporary restraining order was obtained. In the evening of August 8 Deputy Sheriff Toland of Lamar County served the order upon Smyers at his home in Powderly, located only a few miles from the Texas-Oklahoma border. Toland and an investigator for the Bank, John Montgomery, testified that Smyers gave them a belligerent reception and threw the papers down and said that he would not read them so that they would not legally bind him. He showed that he was familiar' with the subject matter of the writ and citation, for he insisted that the tractor was his but was in Oklahoma beyond the reach of the Bank. He further stated that he had a Tennessee buyer and would deliver the tractor the next day. After Smyers promised Montgomery a whipping, Montgomery and Deputy Toland left Smyers and drove to check the heavy equipment located at two sites where Smyers did business. Within 30 minutes they came upon Smyers at one of those sites loading a Caterpillar tractor onto a trailer.

Deputy Toland reported by radio to Sheriff Louie Knowles and left the scene to place Montgomery out of the way. The tractor was gone by the time Sheriff Knowles arrived, but the Sheriff did locate Smyers and admonished him for attempting to move the machine after being served. Smyers replied that “it’s gone, it’s in Oklahoma” and explained that “he had lost a deal in Court before and he didn’t intend to do it again.” While the officers were talking to Smyers, Jimmy D. Smyers, son and business associate of relator Smyers, drove up and clapped his hands in glee to announce that the tractor was then in Oklahoma where no one could do anything about it.

M. L. Smyers testified in his defense, telling of his purchase of the tractor from Ray Claborn and selling it for $18,000 in cash to someone named James Lee, whom he had seen at heavy machinery auctions. He said that it had never been in Oklahoma although, because he was upset, he might have told the Sheriff otherwise. He testified that he moved a John Deere dozer to his home on the evening of August 8 but failed to make that explanation to the Sheriff. His testimony was not convincing to the trial judge.

The trial judge was entitled to find Smyers in contempt of court and to assess his punishment at 60 days in jail and a fine of $500.

The judge further ordered that Smyers should be confined until he purges himself of contempt by delivery of the tractor. Relator argues that this order is void because it is not within his power to perform the act to purge himself of contempt, citing Ex Parte De Wees, 146 Tex. 564, 210 S.W.2d 145 (1948). His argument rests again on his own story of the cash sale to one James Lee on August 4. The story has been found to be false by the trial court and is of no more help to him than was the story told in Ex Parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961).

Relator has been free on bond according to direction of this Court during our consideration of his petition. He is now remanded to the custody of the Sheriff of Smith County.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Matthias BALDESCHWILDER, Petitioner, v. Dorothy H. BONHAM, Respondent.
    No. B-5548.
    Supreme Court of Texas.
    Nov. 12, 1975.

      Dyer, Redford, Burnett, Wray & Wool-sey, B. Mills Latham, Corpus Christi, for petitioner.
    Charles R. Cunningham, Corpus Christi, for respondent.
   PER CURIAM.

This is a suit brought by Dorothy H. Bonham against Matthias Baldeschwilder to recover damages for alleged personal injuries arising out of an automobile rear end collision. In a jury trial, the jury refused to find that the failure of Mr. Baldeschwilder to maintain an assured clear distance between his vehicle and the vehicle driven by Mrs. Bonham constituted negligence. (Special Issue 2.) The jury also failed to find that Mrs. Bonham was injured as a result of the collision. (Special Issue 8.) A take nothing judgment was entered based on the jury verdict. The court of civil appeals reversed and remanded holding that the jury’s answer to Special Issue 2 was contrary to the great weight and preponderance of the evidence. 525 S.W.2d 707. In so doing, the lower court deemed it unnecessary to resolve Mrs. Bonham’s point of error which attacked the jury’s failure to find that she was injured as a result of the collision. Where the existence of injury is controverted in the evidence, a determination must be made whether injury was sustained. Texas & Pacific Railway Company v. Van Zandt, 317 S.W.2d 528 (Tex.1958). The point of error dealing with the injury issue could be dispositive of this case, and the court of civil appeals should have ruled on the point. Tex.R.Civ.P. 451.

Pursuant to Tex.R.Civ.P. 483, the decision of the court of civil appeals being in conflict with Tex.R.Civ.P. 451, the application for writ of error is granted and, without hearing oral argument, we reverse the judgment of the court of civil appeals and remand the cause to that court for determination of the assignments of error relating to Special Issue 8.


author: ARCHIE BROWN, Commissioner.

text:
    Harry Leroy McMAHON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50963.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.
    Richard Thornton, Court-appointed on appeal, Galveston, for appellant.
    Ronald L. Wilson, Dist. Atty., Galveston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ARCHIE BROWN, Commissioner.

Appellant was convicted by a jury of the offense of robbery by assault. The jury assessed the appellant’s punishment at life confinement in the Texas Department of Corrections.

Appellant’s court-appointed counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. In compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel has set forth two contentions in his brief which he contends might arguably support the appeal. However, we have found nothing in counsel’s brief or the appellate record to show that a copy of counsel’s brief has been delivered to appellant, that appellant has been advised of his right to file a pro se brief, or that appellant has been advised that he would be given an opportunity to review the appellate record in order to aid him in raising any grounds that he might choose. See Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969); and Hawkins v. State, 515 S.W.2d 275 (Tex.Cr.App.1974). Accordingly, we must abate this appeal in order that full compliance with the above-cited authorities may be met.

The appeal is abated.


author: DALLY, Commissioner.

text:
    Richard Lee FOUKE, Appellant, v. The STATE of Texas, Appellee.
    No. 50560.
    Court of Criminal Appeals of Texas.
    Nov. 26, 1975.
    Melvyn C. Carson Bruder and Barry P. Helft, Dallas, for appellant.
    Henry Wade, Dist. Atty., James B. Scott, Danny Pitzer and Brian Blessing, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an attempted appeal from a conviction for resisting arrest; the punishment assessed by a jury is a fine of $25.00.

If it were not moot thus Court would have jurisdiction of this appeal. This prosecution was by complaint and information in a County Court at Law. Regardless of the amount of the fine, this Court has jurisdiction of all appeals from county courts when the prosecution is commenced in the county court. Art. 4.03, V.A.C.C.P. The rule is not the same when cases are tried in justice or municipal courts and appealed to the county court; an appeal of these cases may only be taken if the fine assessed in the county court exceeds $100.00. Art. 4.03, V.A.C.C.P. The county court has concurrent original jurisdiction with justice courts and municipal courts in all prosecutions where a statute does not specifically exclude county court jurisdiction. See Art. V, Sec. 16, Constitution of the State of Texas; Art. 4.07, V.A.C.C.P.; Solon v. State, 5 Tex.App. 301 (1878); Woodward v. State, 5 Tex.App. 296 (1878); Bose v. State, 148 Tex.Cr.R. 82, 184 S.W.2d 617 (1945); Skaggs v. State, 157 Tex.Cr.R. 195, 247 S.W.2d 906 (1952). In a prosecution for resisting arrest the county court has concurrent original jurisdiction with justice and municipal courts.

This appeal is moot because the appellant has voluntarily paid the fine and costs assessed; he voluntarily elected to satisfy the judgment; there is nothing from which to appeal. It has long been the rule in this state that the voluntary payment of the fine in a misdemeanor case renders the appeal from the judgment in that case moot. See Payne v. State, 12 Tex.App. 160 (1882); Mayes v. State, 152 Tex.Cr.R. 430, 214 S.W.2d 791 (1948); Winkler v. State, 252 S.W.2d 944 (Tex.Cr.App.1952); Woodard v. State, 163 Tex.Cr.R. 634, 295 S.W.2d 659 (1956); Gates v. State, 332 S.W.2d 333 (Tex.Cr.App.1960); Ex parte Dancer, 171 Tex.Cr.R. 381, 350 S.W.2d 544 (1961); Hogan v. Turland, 430 S.W.2d 720 (Tex.Civ.App.1968).

On June 14, 1974, at the sentencing hearing, in open court the appellant’s counsel, in the appellant’s presence, indicated that an appeal to the United States Supreme Court would be taken, but stated that the fine and costs would be paid that day. The transcript contains the court’s certificate and a bill of costs showing that the fine and costs assessed were fully paid on June 14, 1974.

We are presented with the question of whether the traditional rule, which has already been stated and which has long prevailed in this state, should be overruled. The traditional rule, the liberal rule, and the federal rule are discussed at length in an annotation in 9 A.L.R.3d 462. The appellant urges that this appeal is not moot because there are collateral legal consequences which remain. He cites and relies upon Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946); Ex parte Burt, 499 S.W.2d 109 (Tex.Cr.App.1973); Ex parte Langston, 510 S.W.2d 603 (Tex.Cr.App.1974). These cases may be distinguished from the case we are now considering in other ways, but certainly they can be distinguished from the case we are now considering because in the cases cited the prison sentences which were imposed and served were not voluntarily accepted; also, the collateral legal consequences were much more severe and imminent. It is true and we recognize that some collateral legal consequences are present in any criminal conviction, but here they are minimal. The benefits of the traditional rule as applied in misdemeanor convictions when fines are voluntarily paid is sufficient for us to refuse to overrule our prior cases; that rule has a salutary effect of ending litigation and avoiding the necessity for advisory opinions.

The appeal is dismissed.

Opinion approved by the Court.

DOUGLAS, J., not participating.


author: KEITH, Commissioner.

text:
    Ervin Newton CRAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 50564.
    Court of Criminal Appeals of Texas.
    Nov. 26, 1975.
    Randell C. Riley, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Ward Casey, Bill Leonard and J. Michael Worley, Asst. Dist. Attys., Fort Worth, Jim D. Voilers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

Having been indicted for felony theft of an automobile of a value of more than $50, appellant was found guilty and his punishment fixed at confinement for a period of ten years.

The owner of the vehicle was Jack Morris who testified that his 1966 Cadillac was taken from his used car lot by some unknown person during the afternoon of April 30,1973, without his knowledge and consent and that he recovered it in the police pound in Fort Worth thirty days later. Fort Worth Police Lt. Cunningham testified that he and several others, executing a search warrant on May 29,1973, located the Morris vehicle in a storage facility in Fort Worth, removed it to the police pound, and permitted Morris to reclaim it.

This storage facility was approximately one acre in size and was surrounded by an eight to ten foot chain link fence. The gate to the entrance to the yard was secured by a chain secured with a combination lock. The police cut the chain to gain entrance. Inside the fence there was a large “L” shaped metallic building which was divided into separate stalls or compartments, each of which could be entered by a home garage type of door, each of the doors being closed at the time of the search. Morris’ Cadillac was found to be in one of these compartments. Three other vehicles, whose owners subsequently testified had been stolen, were found in other compartments in the compound. Six vehicles owned by appellant were exposed to public view inside the fence but not inside a compartment.

The State established that appellant had acquired the storage yard and facilities from one Schoremoyer by contract for deed dated October 6, 1972, having paid $15,000 as a down payment and having made the subsequent monthly installments upon the $50,000 deferred balance. Schoremoyer testified that many persons other than he and appellant knew the combination to the lock upon the gate; that several individuals had stalls rented in the building; and that he had a wrecked diesel truck stored in the yard.

Appellant, in the automobile salvage and used car sales business, had his office and place of business some ten or fifteen blocks from the storage yard and no witness for the State placed appellant near the storage yard at any time material to this case.

Although appellant brings forward three grounds of error, we find it necessary to discuss only the second ground reading:

“The trial court committed material reversible error in allowing the jury to convict this Defendant of Theft Over 50 [of property over the value of $50], by circumstantial evidence in attempting to show Defendant in possession of recently stolen property. [Because] (a) State failed to show it was recently stolen property. (b) State failed to show Defendant was in possession, (c) State failed to show Defendant was in exclusive personal possession.”

We first dispose of subdivision (a). Since the Morris car was recovered thirty days after its theft, it was recently stolen property. Wall v. State, 167 Tex.Cr.R. 634, 322 S.W.2d 641 (1959). See also, Smith v. State, 518 S.W.2d 823, 824 (Tex.Cr.App.1975).

We sustain subdivisions (b) and (c) of the ground of error for the reasons now to be stated.

Quoting from 5 Branch’s Ann.P.C., Section 2650, this Court stated the rule in McKnight v. State, 399 S.W.2d 552, 555 (1966), in this language:

“ ‘To warrant an inference or presumption of guilt from the circumstance alone of possession, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant.’ ”

The later cases are in accord with this rule laid down in Branch. See, e. g., Jesko v. State, 458 S.W.2d 927, 928 (Tex.Cr.App.1970); Thomas v. State, 462 S.W.2d 294, 296 (Tex.Cr.App.1971); Hayes v. State, 464 S.W.2d 832, 833 (Tex.Cr.App.1971); Huff v. State, 492 S.W.2d 532, 533 (Tex.Cr.App.1973).

Appellant did not testify nor did he attempt to offer any explanation of the presence of the Morris vehicle in the compartment of the storage facility. Schoremoyer testified that he had some of his personal belongings stored in one of the compartments and had an inoperable diesel truck stored inside the fence. He also said that some heavy foundry equipment was in one of the compartments. Lt. Cunningham corroborated Schoremoyer in both instances, although he did not attempt to establish ownership of such articles of property.

We reproduce the State’s argument in support of its position that the circumstantial evidence was sufficient to support the conviction:

“Testimony established that twenty-six vehicles were found on Appellant’s property. The only six automobiles visible from the street belonged to Appellant. The only other vehicle visible from the street was a wrecked truck which belonged to the previous owner of the warehouse. Locked within the warehouse were nineteen other vehicles, none of which belonged to Appellant. The vehicle in stall number 6 was the Cadillac which had been stolen from Mr. Morris a month earlier. The vehicle in stall number 14 was shown to have been stolen in Terrell, Texas, on April 20, 1973. The vehicle in stall 20 was shown to have been stolen in Denton, Texas, on April 13, 1973. The automobile in stall 16 was shown to have been stolen in Port Worth, Texas, in April of 1973. All 19 vehicles were returned to their rightful owners.”

State’s counsel, although attempting to distinguish Jesko and McKnight, supra, does not cite any authority supporting its position that it has discharged its burden of showing that appellant’s possession was “personal and exclusive, . . . and involve)^] a distinct and conscious assertion of property by the appellant.” Hayes v. State, supra (464 S.W.2d at 833).

Nor does State’s counsel make any adequate reply to this holding in Hayes, supra:

“This Court has held that where stolen property is found on premises to which several persons have access, mere joint control over the premises with others will not warrant an inference of guilt. . [T]he test is whether the appellant makes an assertion of ownership over the stolen property.”

Although the trial court charged upon the law of principals, we have carefully searched the record and find no evidence which would invoke such doctrine. In Robinson v. State, 493 S.W.2d 780, 781 (Tex.Cr.App.1973), the Court restated the six different fact situations in which one may be guilty to a felony charge. This language is peculiarly appropriate to the case at bar.

“To be guilty of a felony offense as a principal, a defendant must be actually present at the time of its commission or if not present at the time of the commission of the offense he must at the time the act is being done, be himself actively engaged in the furtherance of the common purpose and design at some other place.” 493 S.W.2d at 782

The record does not disclose that appellant’s conduct brought him within either of the contingencies mentioned above.

Nor does the fact that three other automobiles found upon the premises under somewhat similar circumstances supply proof that appellant’s guilt has been shown. The hard and stubborn fact remains that appellant was not shown to have been involved in either of the thefts or had any connection with the person or persons who appropriated the vehicles. Appellant’s only connection with either the Morris vehicle or the other stolen cars was the single fact that each was discovered upon his premises.

Assuming that the proof is sufficient to show that the stolen vehicle was upon appellant’s property with his knowledge [from the fact that his own vehicles were upon the lot], there is insufficient evidence to exclude every other reasonable hypothesis except that of appellant’s guilt.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

DOUGLAS, J., not participating.

      . The reference to the three specific vehicles found in stalls 14, 20, and 16, respectively, is to the testimony of State’s witnesses as to other thefts, such testimony being challenged by appellant’s ground three as extraneous offenses. We note in passing that none of such testimony places appellant at or near the scene of these other thefts.


author: COLEMAN, Chief Justice.

text:
    WARREN BROTHERS COMPANY, Appellant, v. A. A. A. PIPE CLEANING COMPANY, Appellee.
    No. 16541.
    Court of Civil Appeals of Texas, Houston (1st Dist).
    Oct. 23, 1975.
    Rehearing Denied Nov. 20, 1975.
    Prappas, Caldwell & Moncure, Brantly Harris, Houston, for appellant.

      Saccomanno, Clegg, Martin & Kipple, Maurice Bresenhan, Jr., Albert H. Wingate, Houston, for appellee.
   COLEMAN, Chief Justice.

This is a suit for damages for breach of contract. After a trial to a jury the court entered judgment for the plaintiff and the defendant appeals. The case is reversed and remanded.

The plaintiff alleges a written contract with the defendant and that pursuant to such contract it rendered certain services for which it has not been paid. The case was dismissed by the trial court for want of prosecution pursuant to local Rule 12(t), which provides:

“On the first Monday of April of each year at 10:00 a.m. . . . each civil case other than uncontested divorce cases, which have been on file more than three years shall be set for hearing for all parties to show cause why same should not be dismissed for want of prosecution; and without good cause shown at or before such hearing such cases shall be dismissed by the court for want of prosecution without further notice. This rule shall constitute notice of such hearings and counsel . . . shall keep informed as to the length of time each of their cases has been on file.”

Some 68 days after the case had been dismissed the plaintiff filed a motion to reinstate the cause pursuant to Vernon’s Annotated Rules of Civil Procedure, Rule 165a, and the court after a hearing ordered the cause of action reinstated. The defendant contends that Rule 165a, supra, is not applicable and that the trial court erred in reinstating the case since the judgment had become final 30 days after dismissal.

Rule 329b, 6, provides:

“In district courts and in county courts having continuous terms, that is, successive terms in a county throughout the year, without more than two days intervening between any such terms, the following rule shall apply:
<<⅛ * * :⅜ ⅜: *
“(c) Judgments of such courts shall become as final after the expiration of thirty (30) days after the date of judgment or after a motion for new trial is overruled as if the term of court had expired.”

Paragraph 8 of Rule 329b, supra, provides:

“Notwithstanding the provisions of this rule, the court may set aside an order of dismissal for want of prosecution and reinstate the case as authorized by Rule 165a.”

Rule 165a, Texas Rules of Civil Procedure, provides in part:

“. . . Where after a hearing the court finds that neither the party nor his attorney received a mailed notice, or acquired actual notice in any manner, of either the court’s intention to dismiss or the order of dismissal prior to the expiration of twenty days after the signing of such order, the court may reinstate the case at any time within thirty days after the party or his attorney first received either a mailed notice or actual notice, but in no event later than six months after the date of signing the order of dismissal.”

Rule 165a, supra, by its terms is applicable to all cases which are dismissed for want of prosecution. There is no contention that the trial court erred in making fact findings necessary to bring this case under Rule 165a, supra. Appellant’s first point does not present error.

The defendant next contends that the court erred in excluding evidence which showed that the work done after April 4 was not a part of the contract. In a written proposal dated March 16, 1970, the plaintiff offered to provide sewer cleaning services to the defendant in a written proposal. The scope of the job was described in the following language:

“Furnishing sewer jets and a sewer vac to clean 18 inch through 48 inch sewer lines on North Belt Freeway job.”

The bid provided for payment on an hourly rate. This proposal was accepted by the defendant. The plaintiff alleged that it performed services under this contract and that the defendant failed to pay the sum of $21,371.82 due to plaintiff for the services rendered. The defendant answered with a general denial only.

At the trial the plaintiff introduced the written proposal and a number of invoices submitted by it to the defendant. Testimony was introduced that these invoices were submitted for payment for services performed on the North Belt Freeway job. The defendant attempted to introduce evidence that the plaintiff had completed its performance under the March 16, 1970 agreement on April 4, 1970 and that all services rendered by the plaintiff thereafter were pursuant to a new agreement evidenced by a new work order. There was testimony that the job site with which the March 16, 1970 agreement was concerned was the point at which Highway 59 crosses over the North Belt. North Belt at that point is below ground level. At that point certain drainage pipes were installed to drain water into a wellhouse where it could be removed by pumps. The last item on the plaintiff’s proposal called for the cleaning of the wellhouse at a lump-sum price. The invoice submitted for that work carried a notation, “Job complete.”

The defendant introduced on a bill of exception its Exhibit 5, a purchase order which was issued by defendant to the plaintiff on April 6, 1970 together with Exhibits 3 and 4 which were invoices issued by the plaintiff billing the defendant referring to Exhibit 5. Exhibit 5 provided for payment on a lineal foot basis rather on an hourly basis. The defendant attempted to introduce these invoices, which were paid, billing the defendant on a lineal foot basis. The defendant offered invoices which had been paid for the purpose of showing that prior to April 4, 1970 invoices were regularly submitted by the plaintiff and were regularly paid by the defendant, in support of their contention that the job was completed on April 4, 1970. They also offered the testimony of a witness that the work described in plaintiff’s Exhibit No. 1 was completed on April 4. They also offered testimony by a witness that the work represented by the invoices introduced by the plaintiff was performed on Highway 59 but not at the intersection of North Belt and Highway 59, and that the work represented by those invoices was not done under the March 16 contract. The defendant further offered testimony to the effect that the purchase order represented by the defendant’s Exhibit 5 was a contract to clean the pipes on the remainder of Highway 59 outside of the North Belt interchange.

The trial court refused to admit this testimony for the reason that such evidence was not admissible under a general denial. It was the trial court’s theory that the defense presented by the evidence offered was in the nature of a confession and avoidance and required an affirmative plea as a condition precedent to its assertion.

Under a general denial the defendant is entitled to introduce evidence which tends to disprove the facts alleged in the plaintiff’s petition, and to rebut evidence offered by the plaintiff in support of its petition. If the defendant desires to introduce evidence of a fact which does not tend to rebut the facts of plaintiff’s case, but which shows an independent reason why the plaintiff should not recover upon the case stated and proved, then such defendant must plead the facts which will avoid the legal consequences of the plaintiff’s case, or else the testimony will not be admissible. Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex.1967).

Here the plaintiff has alleged and offered evidence to prove that they did certain work under a written contract with the defendant and that the defendant has failed to pay for some of such work. The defendant has attempted to introduce evidence to show that the work was not done under the contract alleged and that the hourly charges are not proper because the work was done under a contract providing for payment on a linear foot basis. This evidence tends to directly rebut the allegations of plaintiff’s petition and the evidence introduced in support thereof. The trial court erred in refusing to admit the evidence. Strack v. Strong, 135 S.W.2d 754 (Tex.Civ.App.-San Antonio, 1939, writ dism’d, judgment correct); Gifford-Hill & Co., Inc. v. Jones, 99 S.W.2d 656 (Tex.Civ.App.-El Paso, 1936, no writ history); Crane v. Colonial Holding Corp., 57 S.W.2d 316 (Tex.Civ.App.-Amarillo, 1933, no writ hist.); Amarillo Oil Co. v. Ranch Creek Oil & Gas Co., 271 S.W. 145 (Tex.Civ.App.-Amarillo, 1925, writ dism’d by agreement 288 S.W. 1114); Goodwin v. Biddy, 149 S.W. 739 (Tex.Civ.App.-Amarillo, 1912, no writ hist.).

It is well settled that if the defendant proposes to disprove the facts alleged by the plaintiff, a general denial will serve his purpose. But if the facts alleged are true, and he wishes to explain or avoid them, he must aver, specially, the matters of avoidance or explanation upon which he relies. Mercantile National Bank at Dallas v. Electrical Supply Corp., 434 S.W.2d 907 (Tex.Civ.App.-Dallas, 1968, writ ref’d n. r. e.).

The defendant does not deny the contract on which suit was brought. He does deny, however, that the work for which payment is sought by the plaintiff was done pursuant to the contract alleged. It was plaintiff’s burden to prove not only the contract alleged, but also that the work was done under the terms of said contract. The written contract alleged by the plaintiff was relied on to prove the measure of damages. To rebut this testimony the defendant was entitled to show that the work was actually done under a different contract providing for a different method for determining compensation. Moulton v. Alamo Ambulance Service, Inc., supra; Taylor v. Gentry, 494 S.W.2d 243 (Tex.Civ.App.-Fort Worth, 1973, no writ hist.).

Reversed and remanded.


author: GUITTARD, Justice.

text:
    Ex parte Dennis Ronald THOMPSON. (Original Proceeding)
    No. 18608.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 18, 1975.

      Grier H. Raggio, Raggio & Raggio, Dallas, for appellant.
    James F. Newth, Dallas, for appellee.
   MEMORANDUM OPINION

GUITTARD, Justice.

We heard an application for habeas corpus in the above matter on February 12, 1975, and on February 20 we delivered our opinion stating that because of the lack of any record of the testimony at the contempt hearing, our consideration of the matter would be suspended so that a record could be made in the trial court of the evidence bearing on relator’s contention that he was unable to purge himself of contempt. See Ex parte Thompson, 520 S.W.2d 955 (Tex.Civ.App., Dallas 1975, no writ). No further record has been filed in this court, and we are advised that no proceedings to obtain such a record have been undertaken. In view of the lapse of time and the absence of any further proceedings in the trial court, relator’s application for habeas corpus is granted without prejudice to any further motion for contempt. We presume that any additional testimony in this matter will be properly recorded by the official reporter.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    Charles ANGELO, Trustee, et al., Appellants, v. CHEMICAL BANK AND TRUST COMPANY, Appellee.
    No. 18681.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 9, 1975.
    Rehearing Denied Nov. 20, 1975.

      Sidney L. Farr, Farr & Fillion, Houston, for appellants.
    Aubrey B. Calvin, Dyche, Wright, Sullivan, Bailey & King, Houston, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Venue action. Charles Angelo, individually and as trustee, Eddie Angelo and Angelo’s Fisherman’s Wharf, Inc. (Angelo) brought this action in the district court of Dallas County complaining of Kline Investment Corporation (KIC), Stanley N. Kline, Chemical Bank and Trust Company (Chemical), Mercantile National Bank of Dallas (Mercantile), American Title Company of Dallas (American Title), John K. Pearcy and Company, Inc. (Pearcy) and Guardian Savings and Loan Association (Guardian), seeking specific performance of a contract to convey land located in Dallas County and for damages. All defendants were residents of Dallas County with the exception of Chemical. Chemical duly filed a plea of privilege to be sued in Harris County, Texas, its place of residence. Plaintiffs filed a controverting affidavit in which, inter alia, they alleged that venue as to Chemical was properly in Dallas County by virtue of Tex. Rev.Civ.Stat.Ann. art. 1995(4) (Vernon 1964). Following hearing, the trial court, sitting without a jury, sustained Chemical’s plea of privilege and ordered that the cause of action against Chemical be severed and transferred to a district court of Harris County, Texas. Plaintiffs appeal from that order, contending primarily that the trial court erred in sustaining the plea of privilege because the record shows without contradiction that under art. 1995(4), venue against Chemical lies in Dallas County.

To maintain venue under art. 1995(4), where there is a resident and nonresident defendant, plaintiff establishes his right to maintain venue in the county where the action is brought (a) by proving by independent evidence that a defendant or defendants in fact reside in said county; (b) by proving by a preponderance of the evidence that the plaintiff has a cause of action against a resident defendant; and (c) alleging a joint cause of action against the resident and nonresident defendant or a cause of action against the nonresident defendant so intimately connected with the cause of action proved against the resident defendant that the two may be joined under the rule intended to avoid multiplicity of suits. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959); Kirksey v. Warren, 348 S.W.2d 33 (Tex.Civ.App.- Dallas 1961, no writ) and Schulz v. Schulz, 478 S.W.2d 239 (Tex.Civ.App.-Dallas 1972, no writ).

In light of these rules we have examined the entire record, and we are convinced that plaintiffs sustained the burden imposed upon them to affirmatively bring the cause of action alleged against Chemical within art. 1995(4).

As to the requirements set forth in (a) above, the record conclusively establishes that all the named defendants, with the exception of Chemical, are residents of Dallas County, Texas, where the suit was filed.

Before discussing plaintiffs’ compliance with requirements (b) and (c), we will summarize plaintiffs’ pleadings. Plaintiffs allege that on or about February 10, 1973, KIC and plaintiffs entered into a valid and binding written contract whereby KIC agreed to sell plaintiffs certain real property located in Dallas, Texas, for $3.25 per square foot. Plaintiffs say that at all times since the contract was made they have been ready, willing and able to carry out the contract and have tendered the payment in full. Plaintiffs allege that they performed all conditions precedent to that right to have the property conveyed to them but that KIC and its sole owner and alter ego Kline wrongfully failed and refused to convey the property and repudiated and breached the contract. They allege also that both KIC and Kline should be held liable for specific performance of the contract and required to deliver to plaintiffs a deed to the property. In addition plaintiffs seek judgment against KIC and Kline for damages proximately resulting from the delay in plaintiffs’ acquisition of legal title and possession of the property caused by the wrongful breach and refusal to convey the property. If specific performance is not available plaintiffs ask, alternatively, that they have judgment against KIC and Kline, jointly and severally, for actual damages suffered as a result of the breach of contract. More specifically, plaintiffs allege that KIC and Kline wrongfully recalled the $20,000 earnest money check provided for in the contract after the check was received but before the check had been honored or dishonored by Chemical, the bank on which that check was drawn. American Title, acting for KIC, turned the earnest money check over to Mercantile for collection, and Mercantile mailed it to Chemical in Houston for collection. On the same day that Chemical received the check and before the close of regular banking hours. Mercantile by telephone instructed Chemical to return the check without waiting to see whether Chemical would honor and pay the check. Plaintiffs plead that, had Mercantile not issued the instructions to Chemical, the check would have been honored and paid in due course on the same day it was received by Chemical. As a result of the wrongful and arbitrary instruction, defendant Mercantile is jointly and severally liable with KIC and Kline for damages suffered by plaintiffs. Finally plaintiffs allege, in the alternative, that Chemical wrongfully and without justification failed to or refused to honor the $20,000 earnest money check when that check was presented to Chemical for payment. There were, plaintiffs state, ample funds on deposit with Chemical to cover the earnest money check, and plaintiffs and Chemical had agreed that this check would be honored, regardless of whether there were sufficient funds in the particular account on which the check was drawn to cover the check. The bank’s refusal to honor the check amounted to negligence or breach of the agreement between plaintiffs and Chemical for which plaintiffs are entitled to recover damages.

The question presented is whether plaintiffs have satisfied the requirements of (b) above, by proving by a preponderance of the evidence their cause of action against a resident defendant.

As to the cause of action against Kline and KIC for specific performance and for damages, the testimony offered by plaintiffs conclusively established the terms of the written contract between plaintiffs and KIC. The contract itself was offered in evidence and revealed seller’s obligation to deliver a deed to plaintiffs upon receipt of the consideration set forth. The evidence shows that plaintiffs fulfilled their contractual obligations by tendering the amount of earnest money agreed upon and by tendering the full amount of the consideration; plaintiffs have continuously remained ready to perform. The evidence shows that KIC and Kline breached the contract by refusing to carry out their obligations to convey the property to plaintiffs. We find that plaintiffs have, as a matter of law, met the requirements of proving a cause of action against resident defendants KIC and Kline.

Chemical argues that plaintiffs did not prove a cause of action against KIC and Kline because plaintiffs failed to prove they tendered the consideration in cash, as required by the terms of the contract. Chemical contends also that the tender of a cashier’s check is not equivalent to the tender of cash. We cannot agree.

Chemical has not cited, nor has our investigation revealed, any authority to support its contention. In the case of Watson v. Balzhiser, 21 Ohio Misc. 33, 254 N.E.2d 730, 734 (C.P. Clermont County 1969), an almost identical state of facts was presented, and the court, in denying the same contention now made by Chemical, said:

In this day of bank transactions and the very large amount of real estate deals, of which all are transacted by commercial paper, and while the attorney for the sellers certainly has a responsibility to see to it that the checks that are given are valid checks, such as that of a building and loan, cashier’s check or certified check, and would not be required to accept a personal check of any individual, nevertheless, the tender offered in this case [a cashier’s check] was substantial, and the court finds equivalent to cash.

Our Supreme Court in Wertz v. Richardson Heights Bank and Trust, 495 S.W.2d 572 (Tex.1973) said that a cashier’s check is a bill of exchange drawn by a bank upon itself and accepted in advance for the act of its issuance, and it is not subject to countermand by either its purchaser or by the issuing bank. Thus, said the court, the rule may be stated that a cashier’s check is accepted for payment when issued.

We hold that where the evidence, as in this case, discloses that plaintiffs tendered a cashier’s check, as opposed to a check drawn on plaintiffs’ personal account, for the total purchase price, plaintiffs have complied with the requirement of the contract stating that payment was to be made in cash.

This brings us to a consideration of the question of whether plaintiffs have satisfied the requirements of (c), referred to above, by properly alleging a cause of action against the nonresident defendant Chemical. We conclude that plaintiffs did satisfactorily allege a cause of action against Chemical which is so intimately connected with the cause of action alleged against the resident defendants that the two may be joined under the rule intended to avoid multiplicity of actions, and plaintiffs have thereby satisfied the rule announced by the Supreme Court in Stockyards National Bank r. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936), and also in James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959).

A careful analysis of plaintiffs’ pleadings reveals that plaintiffs’ chief cause of action flows from the alleged breach of the contract to convey real estate between plaintiffs and KIC. Plaintiffs’ cause of action against Chemical arose from an alleged breach of an agreement between plaintiffs and Chemical that Chemical would honor the $20,000 escrow check upon presentation. While it cannot be said that plaintiffs’ allegations concerning the resident defendants Kline and KIC and its allegations concerning the nonresident defendant Chemical constitute a joint cause of action, nevertheless, the cause of action asserted against Chemical is intimately connected with the cause of action alleged and proved against Kline and KIC. The validity of the earnest money check and the circumstances of its recall or dishonor are common questions of fact with respect to the causes of action alleged against all defendants. We hold that, under the peculiar facts and circumstances presented here, the case falls directly within the ambit of the rule announced by the Supreme Court in Stockyards National Bank v. Maples, supra, and reiterated in James v. Drye, supra. The rule was designed by the Supreme Court to avoid multiplicity of action, permitting one court to dispose of all issues and parties in the same litigation.

Chemical, while recognizing the broad general language of Stockyards National Bank v. Maples, supra, relies upon the cases of Danciger v. Smith, 229 S.W. 909 (Tex.Civ.App. Dallas 1921, no writ); Windham v. Alpine Independent School Disk, 478 S.W.2d 861 (Tex.Civ.App.-Amarillo 1972, writ dism’d); and Hanslik v. Nickels Ginning Co., 496 S.W.2d 788 (Tex.Civ.App.-Amarillo 1973, no writ). Danciger was decided prior to Stockyards. Hanslik does not conflict with Stockyards or our decision here. Windham, however, does restrict the language of the Supreme Court in Stockyards by holding that to authorize a joinder of the nonresident defendant under art. 1995(4) “there must be shown a community of responsibility” and that it is not sufficient to show “liability in the alternative.” We do not agree with the conclusions reached in Windham. The proper test for joinder of a resident and nonresident defendant under art. 1995(4) is the existence of common questions of fact. We think this test is consistent with the “intimately connected” requirement of Stockyards. Plaintiffs have satisfied this test.

Plaintiffs, having met the burden imposed upon them to bring themselves within the exception of the venue statute, are entitled to litigate the entire cause of action against all defendants in Dallas County. We hold that the trial court erred in sustaining the plea of privilege of defendant Chemical.

In light of this holding, we need not discuss the remaining points of error raised by plaintiffs. We, therefore, reverse the judgment of the trial court and render judgment that the plea of privilege filed by Chemical is denied. All costs herein are assessed against Chemical.

Reversed and rendered.

      . We note that this rule is also consistent with Tex.R.Civ.P. 40(a) which provides:
      All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.
      We recognize, however, that pursuant to Tex.R.Civ.P. 816 and Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969 (1951) the general venue rules are not altered by our Texas Rules of Civil Procedure.


text:
    Charles W. HURLEY, Appellant, v. NATIONAL BANK OF COMMERCE, Appellee.
    No. 18685.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 15, 1975.
    Rehearing Denied Nov. 13, 1975.

      Wm. Andress, Jr., Andress, Woodgate & Lodewick, Dallas, for appellant.
    Joe B. Harrison, Wynne & Jaffe, Dallas, for appellee.
   GUITTARD, Justice.

This is an action by Charles Hurley against National Bank of Commerce for twice the amount of the interest paid on a loan alleged to be usurious, and for interest on a sum of money deposited with the bank. Hurley claims interest on the money under an oral agreement notwithstanding a provision in the certificate of deposit that the amount deposited should bear no interest. The trial court rendered summary judgment for the bank on the grounds that the usury claim was barred by limitation and that proof of the interest claim is barred by the parol evidence rule. We agree that the usury claim is barred, but we disagree and reverse with respect to the interest claim.

Usury

The principal amount of the loan was ostensibly $454,669.32, represented by a note signed by Hurley payable to the bank, and dated July 14,1967. This note provided for interest at the rate of seven and one-half percent per annum, and both principal and interest were payable in equal monthly installments of $7,861.24 each over a period of six years. The note specifically provided that each installment “shall be applied and credited first in payment of interest accrued on the balance of principal hereof at the time outstanding, and then in reduction of the principal balance hereof.” Hurley alleges that as a part of the original transaction he agreed to maintain on deposit in the bank balances totalling $100,000. His deposition testimony tends to support this allegation.

Hurley’s theory of recovery is that the requirement to maintain these compensating balances reduced the effective principal amount of the loan by $100,000, and that the interest paid, when computed on this reduced amount, was greater than the ten percent permitted to national banks by 12 U.S.C.A. § 85 (1945). The bank, however, did not receive all the interest paid on the loan. On April 14, 1969, the bank assigned the note to KWTX Broadcasting Company, and all payments after that date were made to the assignee. Hurley’s claim for usury is limited to the interest paid to the bank before that date. This claim was first asserted in a pleading filed May 15, 1974. In defense to this claim, the bank pleaded the two-year limitation provided by 12 U.S.C.A. § 86 (1945).

We agree with the trial court’s conclusion that the usury claim is barred by limitation. For present purposes we assume, without deciding, that the loan in question was usurious because of the requirement of compensating balances. We hold, however, that limitation bars Hurley’s cause of action against the bank for usury penalties with respect to interest payments made to the bank before assignment of the note.

In order to avoid the bar of limitation, Hurley relies on the rule of locus poen-itentiae, according to which a lender who has not yet received any interest, but has reserved a discount in an amount greater than the lawful interest, may avoid the penalties of usury by treating the loan at maturity as one for the principal amount actually advanced, provided he collects no more than lawful interest on that amount. Hurley cites Smith v. First National Bank, 42 Neb. 687, 60 N.W. 866, 867 (1894) for its quotation of this rule as stated in National Bank v. Davis, 17 Fed.Cas.No.10,038, p. 1207. We conclude that the facts of the present case do not permit application of the rule of locus poenitentiae. The payments which Hurley now characterizes as usurious interest, and for which he seeks recovery of double the amount paid as usury penalties, were actually made to the bank and credited as interest more than two years before the usury claim was first asserted. Indeed, Hurley must treat his payments to the bank as including interest in order to have any sort of claim against the bank for usury. His claim is untenable under controlling decisions holding that after receipt of payments which the parties understand and intend to be applied as interest, no locus poenitentiae exists, and that if such interest is greater than the lawful maximum, the limitation period on the claim for usury penalties begins to run on each payment from the time it is made. McCarthy v. First National Bank, 223 U.S. 493, 499, 32 S.Ct. 240, 241, 56 L.Ed. 523 (1912); cf. Stout v. Ennis National Bank, 69 Tex. 384, 8 S.W. 808, 810 (1887). Even in Smith v. First National Bank, supra, which Hurley cites, the Nebraska court refused to apply the locus poenitentiae rule to a case in which actual payment of usurious interest was received by the bank.

Hurley’s contention would require us to extend the locus poenitentiae principle beyond any of the cases in which it has been recognized. He argues that no cause of action for usury arises so long as the aggregate amount of the payments does not exceed the principal sum originally advanced because the lender may elect to treat all payments up to that time as return of principal and may forego the interest or reduce it to a lawful amount. We cannot agree. Such a method of purging usury from interest payments already made is not permitted under the federal statute, according to the decisions above cited. Neither is it permitted by Texas law. Southwestern Investment Co. v. Hockley Seed and Delinting, Inc., 516 S.W.2d 136 (Tex.1974).

Interest on Deposit

Hurley’s claim for interest on the $65,000 deposit rests on a more substantial ground. According to his deposition, as quoted by the bank in support of its motion for summary judgment, the compensating balances he was required to maintain included this $65,000, which was not actually in hand at the closing of the loan on July 14, 1967, but was “in transit.” He testified that the bankers told him that these funds would be transferred when received to a non-interest-bearing certificate of deposit and that when the note was paid down so that the compensating balances reached a satisfactory level, “we could redo it or put the money into a savings account or whatever was agreeable with both of us at the time.” According to Hurley, the term of the certificate was not discussed, and he was not informed that it would be for a six-year term, but he had the impression that it would be a demand certificate.

Hurley’s testimony in this regard is corroborated by the documentary evidence. The security agreement he signed at the time of closing the loan describes the collateral as “Certificate of Deposit # in the amount of $65,000.00.” The record also contains an ordinary deposit receipt dated July 17, 1967, crediting Hurley’s account with $65,000. The certificate of deposit in question is dated July 24, 1967. It is signed by the cashier and is payable to Hurley’s order “6 Years after date with interest at the rate of None % per annum.” Apparently the bank debited Hurley’s account for this amount. The certificate was not delivered to Hurley or endorsed by him, and so far as the record shows, it was never exhibited to him until the present controversy arose.

Hurley contends that when the bank assigned the note, his obligation to maintain compensating balances ended, that the bank was then obligated under the oral agreement to “redo the certificate” so as to put it into a savings account or some other arrangement agreeable to him, and that the bank’s breach of this agreement entitled him to recover interest at the legal rate of six percent per annum from the time of the transfer. The bank asserts in its motion for summary judgment that the alleged oral agreement was “directly contradictory to the clear and unambiguous terms of the certificate of deposit and is, therefore, inadmissible because of the parol evidence rule.” Thus the bank insists that it was entitled to keep the money for the full six years without paying interest.

We do not see how the parol evidence rule can have any application to this case. The six-year term specified in the certificate was not included in any of the documents signed by Hurley at the time of the loan. His testimony raises at least a fact issue as to whether the six-year provision was inserted in the certificate unilaterally, without his knowledge or consent. The parol evidence rule presupposes the existence of a valid contract or instrument in w’riting purporting to cover the particular matters involved. Thomas v. Pioneer Motors, Inc., 203 S.W.2d 325 (Tex.Civ.App.— Fort Worth 1947), reversed on other grounds, 146 Tex. 299, 206 S.W.2d 591 (1947); Beil v. Mulkey, 7 S.W.2d 115, 117 (Tex.Civ.App. — Amarillo 1928), affirmed, 16 S.W.2d 287 (Tex.Comm’n App.1929, jdgmt. adopted). See also 9 Wigmore on Evidence § 2425 (3d ed. 1940); 2 McCormick & Ray, Texas Law of Evidence § 1602 (2d ed. 1956). In order to justify summary judgment on the ground that the language of the certificate excludes proof of a prior or contemporaneous oral agreement, the bank had the burden to show that the certificate was something more than a unilateral memorandum. The bank must establish as a matter of law that Hurley accepted the certificate or in some manner assented to it as an expression of the parties’ agreement on this matter. This burden has not been met.

The bank argues that Hurley was not entitled to release of the certificate after assignment of the note because the certificate remained as collateral for the note in the hands of the assignee. Hurley does not contend that he is entitled to release of the certificate. He contends rather that as depositor of the funds he is entitled to interest in accordance with the bank’s oral agreement with him. We hold that a fact issue is raised on this point.

The bank argues further that Hurley is not entitled to interest on the deposit because the money did not belong to him but to Curtis Publishing Company, which had advanced it to him in connection with a lease on an airplane. In our view the source of the money is immaterial. The bank first received the money as a deposit in Hurley’s bank account and then credited it to him in a certificate of deposit payable to his order. Any dispute between Curtis and Hurley concerning this money or the interest on it is a matter between them and cannot affect the bank’s liability under its agreement with Hurley.

The judgment is affirmed insofar as it denies any recovery for usury. Otherwise it is reversed and remanded for further proceedings.

      . This statute allows a national bank to charge interest “at the rate allowed by the laws of the State . . where the bank is located . . . .” In Texas the maximum of ten percent is prescribed by Tex. Rev.Civ.Stat.Ann. art. 5069 1.02 (Vernon 1971).

      . This statute provides a penalty of twice the amount of the interest paid, but adds: “Provided, That such action is commenced within two years from the time the usurious transaction occurred.”

      . Hurlev also signed a security agreement covering a certain airplane and an assignment of rents on such airplane.


author: BARROW, Chief Justice.

text:
    Gene BALL, Appellant, v. KERRVILLE INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 15458.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 15, 1975.
    Rehearing Denied Nov. 12, 1975.
    Joe Mike Egan, Jr., Kerrville, for appellant.
    Lavern D. Harris, Ronald R. Winfrey, Kerrville, for appellee.
   BARROW, Chief Justice.

Appellant has perfected his appeal from a judgment setting aside a decision of the State Board of Education that appellant’s contract to teach math in appellee District during the 1969 1970 school year was wrongfully terminated by the District’s Board of Trustees. A take-nothing judgment was entered on appellant's cross-action whereby he sought to recover the unpaid salary due under said contract.

This is the second appeal of this cause and reference is here made to our first opinion for a full statement of the background of this controversy and the basis for our prior decision. See Ball v. Kerrville Independent School District, 504 S.W.2d 791 (Tex.Civ.App. — San Antonio 1973, writ ref’d n. r. e.). We are bound by this decision as the law of this case.

Ball had taught math in this school district for six consecutive years and had a contract to teach during the 1969 1970 school year for a salary of $6,417.00. On August 29, 1969, he appeared at a general faculty meeting wearing a Vandyke style beard. The District’s superintendent believed the beard would be disruptive of the educational process in the school and directed Ball to shave the beard before commencing to teach his classes on September 2nd. Ball did not believe the beard would be disruptive and said he would shave the beard only if it proved disruptive after a trial period. Ball appeared for his classes on September 2nd with the beard and was suspended by the superintendent. On September 3rd, the District’s Board of Trustees, at a specially called meeting, voted 6 0 to términate Ball’s teaching contract because of his failure to comply with the superintendent’s directive. A full public hearing was held on September 15th at the request of Ball, and many citizens of the district attended and testified regarding this issue which had become quite emotional. On September 23, 1969, the trustees again unanimously voted to terminate Ball’s contract, but agreed to pay his salary for the month of September. Although ten reasons were given for this termination, all relate to Ball’s alleged insubordination or uncooperativeness in refusing to comply with the superintendent’s directive to shave his beard.

Ball timely perfected his appeal from the termination of his contract to Dr. J. W. Edgar, State Commissioner of Education, in accordance with Section 13.115 of the Tex. Educ.Code Ann. (1972). This appeal was heard on November 19, 1969, at which time all parties were represented by counsel and several witnesses were heard. On December 11, 1969, the Commissioner issued his ruling whereby he upheld the action of the Board of Trustees in terminating this contract. Ball appealed this decision to the State Board of Education, and, after a review of the testimony heard by the Commissioner, the State Board, on January 5, 1970, overruled the decision of the Commissioner by a vote of 8 -7. Thus, the State Board of Education overturned the action of the District’s Board of Trustees in terminating Ball’s contract. This decision was appealed to the District Court by the Trustees.

In our prior opinion, we recognized the jurisdiction of the State Board of Education under the Texas Education Code to review the action of the Board of Trustees in cases involving the alleged wrongful termination of a teacher’s contract. It was further held that the power of the courts under the Code to review decisions of the State Board permits a reversal of the State Board’s decision only if the decision: (a) is not supported by substantial evidence; (b) is arbitrary or capricious; or (c) is in error in application of existing law to the facts of the case. See also: Temple Independent School District v. State Board of Education, 493 S.W.2d 543 (Tex.Civ.App. Austin 1973, no writ); McRae v. Lindale Independent School District, 450 S.W.2d 118 (Tex.Civ.App. Tyler 1970, writ ref’d n. r. e.); Lorena Independent School District v. Rosenthal Common School District, 421 S.W.2d 491 (Tex.Civ.App. Waco 1967, writ ref’d n. r. e.).

The primary question before us on this appeal is whether the District discharged its statutory burden of showing the decision of the State Board that Ball’s contract was improperly terminated is without support in substantial evidence and thereby arbitrary.

We have reviewed the lengthy record of the testimony introduced before the trial court on the second trial. This testimony is substantially similar to that reviewed at length in our prior opinion and little would be gained by restating same. Suffice to say, District introduced testimony from several educators who expressed the opinion that to permit Ball to teach without removal of his beard would have been likely to cause a disruption in the school system under the circumstances.

A substantial part of District’s argument is predicated upon the unsupported assumption that Ball violated a rule of the District which prohibited teachers from wearing beards in the classrooms. Each of the District Trustees was called as a witness and each testified that there was no such formal rule on August 29, 1969. At the very least, there is substantial evidence to support the finding by the State Commissioner that there was no such rule or even an “unwritten policy” on August 29, 1969. There was no dress code for faculty members although a high standard was voluntarily set and followed in this school system. However, there was a dress code for students which required that boys be clean shaven. The superintendent was of the opinion on August 29, 1969, that this requirement would be difficult to enforce if male teachers were permitted to wear beards. On the other hand, at least two teachers wore mustaches without any noticeable disruption in the school system. There was some evidence that another teacher had worn a beard without incident on at least two prior occasions. Each of the trustees testified that he or she was more concerned about Ball’s insubordination and refusal to cooperate with the superintendent rather than Ball’s physical appearance.

The question before the State Commissioner and the State Board was whether the superintendent was justified on August 29, 1969, in directing that Ball shave off the beard in order to avoid a disruption in the educational process of the school system. This was a professional judgment call to be made initially by the superintendent, but subject to review by the District’s Board of Trustees, the State Commissioner of Education and finally by the State Board of Education. A majority of the State Board in the exercise of the authority granted it by the Legislature held that the Trustees wrongfully terminated Ball’s contract. It cannot be concluded that the District established as a matter of law that this decision is not supported by substantial evidence.

District also urges that the State Board misapplied the law to the facts in this case in that the State Board erroneously concluded that Ball had a constitutional right to wear a beard. It is true that Ball strongly urged such contention before the State Commissioner and the State Board while he now seeks to preserve such question for a Federal Court’s determination. However, the State Commissioner stated the question before him in the following manner:

“The question here is whether or not the rule laid down by the superintendent on August 29, 1969 that appellant must remove his beard as a condition to his being permitted to perform as a teacher under his contract was a reasonable and necessary rule at that time to ensure and preserve a normal and orderly operation of the school in the current school term.”

The State Commissioner concluded that the actions of the superintendent and the Trustees were reasonable and necessary. A majority of the State Board concluded to the contrary. It cannot be concluded from this record that the State Board’s decision was based upon an erroneous application of the law to the facts.

We cannot say from this record that the District discharged its statutory burden of establishing as a matter of law that the decision of the State Board of Education is not supported by substantial evidence or is based upon an erroneous application of the law. Therefore, the trial court erred in setting aside such decision which held that Ball’s contract was wrongfully terminated.

Ball sought to recover, on his cross-action, a judgment for the salary remaining unpaid on this contract. He was paid for the month of September, but has not been paid the remaining sum of $5,972.25 owed under his contract. He offered to resume teaching shortly after the State Board made its decision, but the Trustees decided to perfect an appeal from said adverse decision. The District admitted at the trial that it had sufficient available school funds on hand to pay the balance of his salary at the following times: during the school year of 1969-1970; at the time it perfected its appeal from the decision of the State Board; and at the time Ball filed his cross-action seeking the balance of his salary. He, therefore, is entitled to a judgment against the District for the balance owed on his contract. National Surety Corporation v. Friendswood Independent School District, 433 S.W.2d 690 (Tex.1968). Ball is also entitled to judgment for interest on said sum from February 19, 1970, when the District perfected its appeal from the decision of the State Board by filing this suit.

The judgment of the trial court is reversed and here rendered that appellant, Gene Ball, recover from appellee, Kerrville Independent School District, the sum of $5,972.25 with interest on said sum at the rate of six percent per annum from February 19, 1970, together with his court costs.

      . Section 13.109 of the Tex.Educ.Code Ann. (1972) provides in part:
      “Any teacher, . . may be discharged during the school year for one or more of the following reasons, which shall constitute lawful cause for discharge: .
      (4) repeated failure to comply with official directives and established school board policy; . . .

      . The Texas Education Code was enacted by Acts 1969, 61st Leg. 2735, dr. 889, effective September 1, 1969.


text:
    Robert EIKEL, Testamentary Executor of the Succession of John P. Bristow, Deceased, Appellant, v. BRISTOW CORPORATION et al., Appellees.
    No. 16522.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 16, 1975.

      Eikel & Davey, Robert Eikel, Houston, for appellant.
    Kenneth M. Morris, Houston, Vinson, El-kins, Searls, Connally & Smith, Houston, of counsel, for appellees Robert B. Taylor, Allied Industrial Group, Inc., Albert A. Norris and Gray-Norris Co.
    Fouts, Moore, Caldwell, Coleman & Roy-all, Houston, Donald R. Royall, Houston, of counsel, for appellee Harry E. Jacobsen.
    Van E. McFarland, Houston, for appellee William G. King.
   COLEMAN, Chief Justice.

This is a suit to recover the balance due on certain promissory notes instituted by the Houston National Bank and prosecuted by appellant against Bristow Corporation, the maker of said notes, and certain endorsers and guarantors. At the conclusion of the plaintiff’s evidence some of the endorsers and guarantors moved for judgment without having presented their defenses. The court granted said motions and entered judgment on the notes only against the Bristow Corporation. Robert Eikel, the testamentary executor, has appealed.

The Houston National Bank instituted this suit on three promissory notes. The note dated March 15, 1967 in the original principal amount of $78,000.00 was executed by the Bristow Corporation and endorsed by J. P. Bristow. The note dated November 24, 1967 in the original principal sum of $35,000.00 was executed by the Bris-tow Corporation and endorsed in order by J. P. Bristow, Kenneth L. Burton, Robert B. Taylor, Lindon M. Williams, William G. King and H. E. Jacobsen. The third note was dated F'ebruary 13, 1967 in the original principal sum of $55,000.00 and was executed by the Bristow Corporation and endorsed in order by Kenneth L. Burton, J. P. Bristow, William G. King, H. E. Jacobsen, R. B. Taylor and Lindon Williams. The bank sued Bristow Corporation, the maker, and also each of the endorsers. In addition the bank sued Paul E. Wolfinger, J. P. Bristow, J. A. Williamson, and Harry E. Jacobsen on a guaranty agreement dated July 2, 1965 by which the parties above named jointly and severally guaranteed the payment to said bank, its successors and assigns, of all loans, discounts, overdrafts or bills of exchange that said bank may or might have made to the Bristow Corporation and of any and all indebtedness, claim or demand, whether past, present or future, that said Bristow Corporation may be due and owing to said bank in any amount not to exceed $100,000.00 plus interest and attorney’s fees. The bank also sued Robert B. Taylor, Lindon M. Williams, Kenneth L. Burton, and William G. King on a guaranty agreement in the same terms dated September 18, 1967, limited to an amount not to exceed $140,500.00.

While this action was pending J. P. Bris-tow died and Robert Eikel qualified as testamentary executor of the succession of J. P. Bristow in the 27th Judicial District Court of Louisiana. Thereafter the executor paid to the Houston National Bank the sum of $25,000.00 and received assignment of the cause of action, the underlying notes and guaranty agreements. In November, 1973 a suggestion of death was filed and thereafter Robert Eikel as executor filed an answer for J. P. Bristow. After the assignment of the cause of action to the-executor, the trial court on March 1, 1974, permitted him to be substituted as plaintiff. The executor was permitted to proceed to trial as plaintiff on the pleadings filed by the bank. See International Shelters, Inc. v. Pinehurst Inv. Corp., 474 S.W.2d 497 (Tex.Civ.App. — Corpus Christi, 1971, writ dism’d); Duncan v. Ponton, 102 S.W.2d 517 (Tex.Civ.App. — Fort Worth, 1937, no writ hist.); Dickinson v. Dysart, 237 S.W. 615 (Tex.Civ.App. — San Antonio 1922, no writ hist.); Paxton v. First State Bank of Tatum, 42 S.W.2d 837 (Tex.Civ.App. — Tex-arkana, 1931, no writ hist.); Crowe v. Union Auto Ins. Co., 79 S.W.2d 168 (Tex.Civ.App. —El Paso, 1935, error dism’d).

Despite the fact that the trial court rendered judgment at the conclusion of the plaintiff’s evidence, and before the defendants had presented their evidence or had rested, by sustaining the defendants’ motion for judgment, he, on request, filed findings of fact and conclusions of law. Findings of fact under such circumstances are inappropriate, since the propriety of the action in sustaining the motion for judgment must be considered under the rules of law authorizing instructed verdicts in jury cases. Pine v. Gibraltar Savings Association, 519 S.W.2d 238 (Tex.Civ.App. — Houston [1st], 1975, writ ref’d n. r. e.); Shirley Nesmith Alien v. Robert E. Nesmith, 525 S.W.2d 943 (Tex.Civ.App. — Houston [1st], 1975, no writ hist.).

On February 22, 1974, the Houston National Bank assigned to “Robert Eikel, Independent Testamentary Executor of the Succession of John P. Bristow, Deceased,” the three promissory notes and the two continuing guaranty agreements dated July 2, 1965 and September 18, 1967, respectively, and “assignor’s cause of action in the above described suit entitled Houston National Bank v. Bristow Corporation et a I, pending on the docket of District Court of Harris County, Texas, 157th Judicial District, under Docket Number 782,032.” The assignment was made without recourse or warranties. Each of the three promissory notes was endorsed “Pay to the order of Robert Eikel, Independent Testamentary Executor of the Succession of John P. Bris-tow, Deceased, without recourse express or implied” and signed “Houston National Bank, Houston, Texas by O. W. Harigel, Senior Vice President. The written assignment agreement recites that it was executed at Houston, Texas. The evidence reflects that Robert Eikel paid to the bank the sum of $25,000.00 by check drawn on Robert Eikel, Trustee Account. The judgment entered by the district court contains this recital:

“BE IT REMEMBERED that the above entitled and numbered cause came on for trial on the 10th day of December, 1974, at a regular setting thereof, and came the plaintiff Robert Eikel, Testamentary Executor of the Succession of John P. Bristow, Deceased, substituted as plaintiff for the Houston National Bank of Houston, Texas, by virtue of assignment of the said bank’s causes of action herein under order of this Court dated March 1, 1974, . . . ”

The trial court entered a judgment sustaining a motion for nonsuit as to the claim against J. A. Williamson and rendering judgment on the notes against Bristow Corporation. It granted the motion that plaintiff take nothing as to J. P. Bristow, Kenneth L. Burton, William G. King, Harry E. Jacobsen, Robert B. Taylor, and Lindon M. Williams. The cross-actions and third party actions of J. P. Bristow, Harry E. Jacobsen, and Robert B. Taylor were denied.

The appellant Robert Eikel presents by his point of error number one the proposition that the trial court erred in its conclusion of law:

“The reacquisition of a promissory note by a prior endorser or co-obligor discharges liability on the note itself.”

The trial court erred in holding that the notes in question were discharged by their acquisition by Mr. Eikel. The extent of the discharge of any party from liability on an instrument is governed by Section 3.601 of the Uniform Commercial Code. Under this section the liability of all parties is discharged when any party who has himself no right of action or recourse on the instrument reacquires the instrument in his own right. Here Mr. Eikel has a cause of action against the corporate maker of the three notes and against Mr. Burton on one of the notes. Section 3.603, Uniform Commercial Code, provides in Section (b):

“Payment or satisfaction may be made with the consent of the holder by any person including a stranger to the instrument. Surrender of the instrument to such a person gives him the rights of a transferee (Section 3.201).”

Appellees principally rely upon the provisions of Section 3.208 of the Uniform Commercial Code to sustain the judgment of the trial court. This section provides:

“Where an instrument is returned to or reacquired by a prior party he may cancel any indorsement which is not necessary to his title and reissue or further negotiate the instrument, but any intervening party is discharged as against the reacquiring party and subsequent holders not in due course and if his indorsement has been cancelled is discharged as against subsequent holders in due course as well.”

A comment under this section of the Uniform Commercial Code provides:

“The reacquirer may keep the instrument himself or he may further negotiate it. On further negotiation he may or may not cancel intervening indorsements. In any case intervening indorsers are discharged as to the reacquirer, since if he attempted to enforce it against them they would have an action back against him.

Section 3.118(5), Uniform Commercial Code, provides:

“Unless the instrument otherwise specifies two or more persons who sign as maker, acceptor or drawer or indorser and as a part of the same transaction are jointly and severally liable even though the instrument contains such words as T promise to pay’.”

The Uniform Commercial Code comment found under this section states that it applies only where such parties sign as a part of the same transaction; successive endorsers are, of course, liable severally but not jointly.”

Section 3.414 of the Uniform Commercial Code in paragraph (b) thereof provides:

“Unless they otherwise agree indorsers are liable to one another in the order in which they indorse, which is presumed to be the order in which their signatures appear on the instrument.”

The liability of the endorsers, as contrasted to the guarantors, is dependent, therefore, on whether or not there has been a reacquisition of the instrument by a previous endorser. There is some evidence that all the endorsers signed as a part of the same transaction. Prior to the time the note was transferred to Mr. Eikel, it was held by the original payee. It is apparent from the face of the instrument that the endorsers were neither holders nor transfer-ors. There is testimony that the payee bank required all stockholders of closely held corporations to which it made loans to endorse or otherwise guarantee the notes representing such loans. When Mr. J. P. Bristow disposed of his majority stock ownership in the corporation, the parties purchasing such stock immediately signed an agreement with the bank by which they guaranteed all indebtedness of the corporation.

It must be noted that this action is being prosecuted by Mr. Robert Eikel by virtue of an assignment of the notes to him by the payee bank. The evidence shows that Mr. Eikel was appointed testamentary executor of the succession of John P. Bristow and duly qualified as such executor in the State of Louisiana. There is no evidence that an ancillary administration has been obtained in the State of Texas. Section 3.401 of the Uniform Commercial Code provides that no person is liable on an instrument unless his signature appears thereon. John P. Bris-tow never reacquired the notes on which this suit was brought. They were purchased by Mr. Eikel, and assigned to him, presumably in his representative capacity as executor of the Bristow estate. The instruments were acquired by the executor, not by Mr. Bristow, and the executor was not a prior party. The right of action upon the notes here involved did not pass to his estate from Mr. Bristow.

The endorsers were accommodation parties and stood in the relation of surety to the maker. Section 3.415(a) provides that an accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it. By this language the requirement found in Section 29 of the Uniform Negotiable Instruments law that an accommodation party signed the instrument without receiving value therefor is eliminated. As stated in a comment to the Uniform Commercial Code under this section, the essential characteristic is that the accommodation party is a surety, and not that he signed gratuitously. Since the endorsers are parties to the instrument their liability is that provided by the Uniform Commercial Code.

The guaranty agreements which are involved in this suit are not governed by the provisions of the Uniform Commercial Code. Section 3.416 deals with guaranty agreements which are added to a signature on the instrument. The cause of action is against the signers of the written guaranty agreements and suit will not lie against them on the notes. The signers of the guaranty instruments had guaranteed the payment to the bank, its successors and assigns, “any and all loans, discounts, overdrafts or bills of exchange that the bank may or might have made to the said debt- or.” The guarantee is a limited one, the limit being specified in each agreement. Each instrument provides that it is a continuing guaranty to the extent of the sum above mentioned which will remain in full force and effect until revoked by notice in writing to the bank and that it extends to and covers any and all loans at any time made and any and all indebtedness at any time owing to the bank and any and all renewals or extensions of such indebtedness. Each agreement also contains a provision that the liability of the guarantor shall be primary and that it shall not be necessary in order to enforce payment of any monies to become due thereunder to first institute suit or exhaust any remedies against the debtor before requiring guarantors to pay the same. The trial court erred in rendering judgment absolving the signers of these guaranty agreements from liability on the indebtedness represented by the notes, which indebtedness had been assigned to Mr. Eikel.

A problem arises as to the disposition to be made of this case by reason of the fact that the record affirmatively reflects that Mr. Eikel purports to act in this case as an executor deriving his power and authority from the 27th District Court of the Parish of St. Landry in the State of Louisiana. It is well settled that a foreign administrator or executor, as such, cannot sue or be sued in the courts of this state, or act as legal representative of a foreign estate in this state. Thacker v. Lindahl, 48 S.W.2d 588 (Tex.Com.App.1932); Faulkner v. Reed, 241 S.W. 1002 (Tex.Com.App.1922).

In Terrell v. Crane, 55 Tex. 81 (1881), a suit was brought by Newton Crane, a resident of St. Louis, Missouri, who sued in a representative capacity, describing himself as the administrator of John H. Dowell, deceased, appointed as such by order of the probate court of the City of St. Louis, against S. L. Terrell et al. upon a promissory note alleged to have been executed by them and payable to the order of John H. Dowell. A writ of error was prosecuted from a judgment by default rendered in favor of the plaintiff Crane as such administrator. The court stated:

“That such suit cannot be maintained in the courts of this state, by virtue of letters of administration issued from the Probate Court of a sister state, upon a debt belonging to the estate of decedent, where title thereto has not been directly vested into the administrator, as when made payable to him, or when judgment had been previously recovered in his name, is the established doctrine of this court. .
“This is based upon the principle that one state should not have extraterritorial jurisdiction over assets of a deceased person; otherwise these assets might be exhausted or withdrawn to the detriment of domestic creditors, who have the right to have them administered under the laws of their own state, and to whose jurisdiction they are naturally subjected . . ”

In Robinson v. City National Bank, 56 F.2d 225 (N.Dist.Tex.1931), it was stated that where assets belonging to an estate were taken into possession within the state by foreign executors and converted into cash and the cash then deposited in a Texas bank, the transaction between the executors and the bank was a personal transaction and formed a contract between the executors and the bank, and that the executors in such a case could maintain a personal action in any Texas court of competent jurisdiction or in the federal court for the purpose of enforcing the collection of the money deposited by them with the defendant. The court cited Moore v. Petty (C.C.A.), 135 F. 668, and quoted from the opinion as follows:

“The general rule undoubtedly is that an executor or administrator in his representative capacity cannot maintain an action in the courts of any sovereignty other than that under whose laws he was appointed and qualified, without obtaining an ancillary grant of letters in the state where the action is brought, unless the right to do so is conferred upon him by the law of the forum. . . . But whenever the cause of action declared upon by the foreign executor or administrator is one which involves an assertion of his own right, rather than one of the deceased, or which has accrued directly to him through his contract or transaction, and was not originally an asset of the estate in his charge, he may maintain an action in another state for the enforcement thereof, although express authority so to do may not be found in a statute of the forum. The principle underlying this modification of the general rule is that, when the cause of action accrued directly to the executor or administrator, it is assets in his hands for which he may sue in his personal capacity, and, if he sues as executor or administrator, the words so describing him will be regarded as merely descriptive and be rejected as surplus-age.”

The exception to the general rule referred to in the cases seems to be the same exception to which the Supreme Court of Texas referred in Terrell v. Crane, supra, by saying:

“where the title thereto has not been directly vested into the administrator, and when made payable to him, or when judgment has been previously recovered in his name.”

We conclude therefore, as a matter of law, that in prosecuting this suit Robert Eikel was asserting his own right rather than one of the deceased and the notes in question were assets in his hands for which he was entitled to sue in his personal capacity.

Rule 155, Texas Rules of Civil Procedure, provides:

“Where there are two or more plaintiffs or defendants, and one or more of them die, upon suggestion of such death being entered upon the record, the suit shall at the instance of either party proceed in the name of the surviving plaintiffs or against the surviving defendants, as the case may be.”

J. P. Bristow was a named defendant in the case. On suggestion of death being filed Robert Eikel voluntarily answered as executor of his estate. The death of J. P. Bristow pending suit removed him as a party. As a foreign executor Eikel had no standing to defend the suit and his voluntary action did not operate to continue the suit as to J. P. Bristow. See First National Bank in Dallas v. Hawn, 392 S.W.2d 377 (Tex.Civ.App. — Dallas, 1965, writ ref’d n. r. e.).

In considering the judgment to be entered in this cause on reversal, Section 324 of the Probate Code came to the attention of the court. This section provides generally that it shall be unlawful for an executor to purchase for his own use “or for any purposes whatsoever” any claim against the estate he represents. Since this section of the Probate Code was not raised in the trial court nor in the briefs on appeal, we express no opinion as to its applicability to the fact situation before us and will remand the case as hereinafter ordered.

The judgment of the trial court is affirmed insofar as it relates to Albert A. Norris, the Bristow Corporation, the Gray Norris Company, the Allied Industrial Group, Inc., and J. A. Williamson. In all other respects and as to all other parties the judgment of the trial court is reversed and the cause is remanded.