author: CADENA, Justice.

text:
    O. W. GRUN ROOFING AND CONSTRUCTION COMPANY, Appellant, v. Mrs. Fred M. COPE, Appellee.
    No. 15401.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 15, 1975.

      William M. Porter, San Antonio, for appellant.
    Earle Cobb, Jr., Cobb, Thurmond & Bain, Inc., San Antonio, for appellee.
   CADENA, Justice.

Plaintiff, Mrs. Fred M. Cope, sued defendant, O. W. Grun Roofing & Construction Co., to set aside a mechanic’s lien filed by defendant and for damages in the sum of $1,500.00 suffered by plaintiff as a result of the alleged failure of defendant to perform a contract calling for the installation of a new roof on plaintiff’s home. Defendant, in addition to a general denial, filed a cross-claim for $648.00, the amount which plaintiff agreed to pay defendant for installing the roof, and for foreclosure of the mechanic’s lien on plaintiff’s home.

Following trial to a jury, the court below entered judgment awarding plaintiff $122.60 as damages for defendant’s failure to perform the contract; setting aside the mechanic’s lien; and denying defendant recovery on its cross-claim. It is from this judgment that defendant appeals.

The jury found (1) defendant failed to perform his contract in a good and workmanlike manner; (2) defendant did not substantially perform the contract; (3) plaintiff received no benefits from the labor performed and the materials furnished by defendant; the reasonable cost of performing the contract in a good and workmanlike manner would be $777.60. Although the verdict shows the cost of proper performance to be $777.60, the judgment describes this finding as being in the amount of $770.60, and the award of $122.60 to plaintiff is based on the difference between $770.60 and the contract price of $648.00.

By its first point, defendant questions the factual and legal sufficiency of the evidence to support the jury’s findings. The argument under this point (defendant’s brief contains no statement following each point), is limited to the contention that all of the elements of “substantial performance” were established.

We find no assignments of error in the motion for new trial specifically calling the trial court’s attention to the complaint that the evidence is insufficient to support the finding that defendant did not perform the contract in a good and workmanlike manner (issue no. 1), or that the finding that defendant did not substantially perform the contract (issue no. 2) was contrary to the overwhelming weight and preponderance of the evidence. The motion for new trial does assert that the trial court erred in overruling defendant’s motion for judgment n. o. v. because “a. The jury disclosed by their answers to the special issues that they were in sympathy with the Plaintiff and that their answers to the questions proposed by the Court were not founded on any evidence or upon wholly insufficient evidence,” and “b. Defendant should have been granted Judgment as a matter of law because the evidence was legally sufficient for such a verdict.” Assuming that this portion of the motion for new trial raises the question of factual sufficiency of the evidence, it amounts to no more than a complaint that the verdict is contrary to the evidence. The assignment is multifarious, complaining of the sufficiency of the evidence to support the answers to each of five issues and will not support a factual insufficiency of the evidence point on appeal. Rule 322, Tex.R.Civ.P. (1967).

The only questions, therefore, which we can consider under defendant’s first point are that there is no evidence to support the finding that defendant did not perform in a good and workmanlike manner and that the evidence establishes as a matter of law that defendant substantially performed the contract. In considering these “no evidence” points, we look only to the evidence supporting the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952).

The written contract required defendant to install a new roof on plaintiff’s home for $648.00. The contract describes the color of the shingles to be used as “russet glow,” which defendant defined as a “brown varied color.” Defendant acknowledges that it was his obligation to install a roof of uniform color.

After defendant had installed the new roof, plaintiff noticed that it had streaks which she described as yellow, due to a difference in color or shade of some of the shingles. Defendant agreed to remedy the situation and he removed the nonconforming shingles. However, the replacement shingles do not match the remainder, and photographs introduced in evidence clearly show that the roof is not of a uniform color. Plaintiff testified that her roof has the appearance of having been patched, rather than having been completely replaced. According to plaintiff’s testimony, the yellow streaks appeared on the northern, eastern and southern sides of the roof, and defendant only replaced the non-matching shingles on the northern and eastern sides, leaving the southern side with the yellow streaks still apparent. The result is that only the western portion of the roof is of uniform color.

When defendant originally installed the complete new roof, it used 24 “squares” of shingles. In an effort to achieve a roof of uniform color, five squares were ripped off and replaced. There is no testimony as to the number of squares which would have to be replaced on the southern, or rear, side of the house in order to eliminate the original yellow streaks. Although there is expert testimony to the effect that the disparity in color would not be noticeable after the shingles have been on the roof for about a year, there is testimony to the effect that, although some nine or ten months have elapsed since defendant attempted to achieve a uniform coloration, the roof is still “streaky” on three sides. One of defendant’s experts testified that if the shingles are properly applied the result will be a “blended” roof rather than a streaked roof.

In view of the fact that the disparity in color has not disappeared in nine or ten months, and in view of the fact that there is testimony to the effect that it would be impossible to secure matching shingles to replace the nonconforming ones, it can reasonably be inferred that a roof or uniform coloration can be achieved only by installing a completely new roof.

The evidence is undisputed that the roof is a substantial roof and will give plaintiff protection against the elements.

The principle which allows recovery for part performance in cases involving dependent promises may be expressed by saying that a material breach or a breach which goes to the root of the matter or essence of the contract defeats the promis- or’s claim despite his part performance, or it may be expressed by saying that a prom-isor who has substantially performed is entitled to recover, although he has failed in some particular to comply with his agreement. The latter mode of expressing the rule is generally referred to as the doctrine of substantial performance and is especially common in cases involving building contracts, although its application is not restricted to such contracts.

It is difficult to formulate definitive rule for determining whether the contractor’s performance, less than complete, amounts to “substantial performance,” since the question is one of fact and of degree, and the answer depends on the particular facts of each case. But, although the decisions furnish no rule of thumb, they are helpful in suggesting guidelines. One of the most obvious factors to be considered is the extent of the nonperformance. The deficiency will not be tolerated if it is so pervasive as to frustrate the purpose of the contract in any real or substantial sense. The doctrine does not bestow on a contractor a license to install whatever is, in his judgment, “just as good.” The answer is arrived at by weighing the purpose to be served, the desire to be gratified, the excuse for deviating from the letter of the contract and the cruelty of enforcing strict adherence or of compelling the promisee to receive something less than for which he bargained. Also influential in many cases is the ratio of. money value of the tendered performance and of the promised performance. In most cases the contract itself at least is an indication of the value of the promised performance, and courts should have little difficulty in determining the cost of curing the deficiency. But the rule cannot be expressed in terms of a fraction, since complete reliance on a mathematical formula would result in ignoring other important factors, such as the purpose which the promised performance was intended to serve and the extent to which the nonperformance would defeat such purpose, or would defeat it if not corrected. See, generally, 3A Corbin, Contracts Secs. 700-07 (1960).

Although definitions of “substantial performance” are not always couched in the same terminology and, because of the facts involved in a particular case, sometimes vary in the recital of the factors to be considered, the following definition by the Commission of Appeals in Atkinson v. Jackson Bros., 270 S.W. 848, 851 (Tex.Comm.App.1925), is a typical recital of the constituent elements of the doctrine:

To constitute substantial compliance the contractor must have in good faith intended to comply with the contract, and shall have substantially done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purpose cannot, without difficulty, be accomplished by remedying them. Such performance permits only such omissions or deviations from the contract as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, and are remediable without doing material damage to other parts of the building in tearing down and reconstructing.

See, also, Dupuy v. Shilling, 27 S.W.2d 323, 325 (Tex.Civ.App. — Beaumont 1930, writ dism’d); 10 Tex.Jur.2d, Building Contracts Sec. 21; 13 Am.Jur.2d, Building and Construction Contracts Secs. 41-43.

What was the general plan contemplated for the work in this case? What was the object and purpose of the parties? It is clear that, despite the frequency with which the courts speak of defects that are not “pervasive,” which do not constitute a “deviation from the general plan,” and which are “not so essential that the object of the parties in making the contract and its purpose cannot, without difficulty, be accomplished by remedying them,” when an attempt is made to apply the general principles to a particular case difficulties are encountered at the outset. Was the general plan to install a substantial roof which would serve the purpose which roofs are designed to serve? Or, rather, was the general plan to install a substantial roof of uniform color? Was the object and purpose of the contract merely to furnish such a roof, or was it to furnish such a roof which would be of a uniform color? It should not come as a shock to anyone to adopt a rule to the effect that a person has, particularly with respect to his home, to choose for himself and to contract for something which exactly satisfies that choice, and not to be compelled to accept something else. In the matter of homes and their decoration, as much as, if not more than, in many other fields, mere taste or preference, almost approaching whimsy, may be controlling with the homeowner, so that variations which might, under other circumstances, be considered trifling, may be inconsistent with that “substantial performance” on which liability to pay must be predicated. Of mere incompleteness or deviations which may be easily supplied or remedied after the contractor has finished his work, and the cost of which to the owner is not excessive and readily ascertainable, present less cause for hesitation in concluding that the performance tendered constitutes substantial performance, since in such cases the owner can obtain complete satisfaction by merely spending some money and deducting the amount of such expenditure from the contract price.

In the case before us there is evidence to support the conclusion that plaintiff can secure a roof of uniform coloring only by installing a completely new roof. We cannot say, as a matter of law, that the evidence establishes that in this case that a roof which so lacks uniformity in color as to give the appearance of a patch job serves essentially the same purpose as a roof of uniform color which has the appearance of being a new roof. We are not prepared to hold that a contractor who tenders a performance so deficient that it can be remedied only by completely redoing the work for which the contract called has established, as a matter of law, that he has substantially performed his contractual obligation.

Point two asserts that the trial court erred in awarding plaintiff damages in the amount of $122.60 because such judgment is based on the answer to issue no. 5, and such special issue incorrectly referred to cost at the time of trial as opposed to the time of loss and, in any event, is not supported by any evidence.

Defendant did not object to the submission of issue no. 5 or to the wording of such issue. The defect in the wording of the issue was not timely called to the attention of the court and the error, if any, was waived. Rule 272, Tex.R.Civ.P. (Supp. 1975).

A witness testified that, at the time he installed the roof, a new roof of uniform color could have been installed for a cost of $648.00. He then testified that the cost of installing such a roof had increased by about 20% since that time. The figure at which the jury arrived in answer to issue 5 is equal exactly to $648.00 plus 20%, although the trial court, as already pointed out, lowered this amount by $7.00 for reasons not apparent from the record.

In its brief, defendant argues that it should be obvious that, in order to install another roof, it would not be necessary to replace the metal valleys, the metal trim and the Boston type ridges. This theory was not developed at the trial, a fact which defendant admits, at least tacitly, by its statement in the brief to the effect that the only testimony relating to the cost of replacing the roof was the testimony referred to in the preceding paragraph.

Point two is overruled.

Finally, defendant argues that it was entitled to judgment at least on the theory of quantum meruit on its cross claim because the evidence establishes as a matter of law that defendant installed a good weatherproof roof which was guaranteed for 15 years, and that such roof was installed properly in accordance with factory specifications and was of use and benefit to plaintiff.

The evidence does not conclusively establish that the shingles were properly installed. There is evidence to the effect that if shingles of this type are properly installed the result will be a roof which “blends,” rather than a roof with clearly discordant streaks. In any event, the evidence does not conclusively establish that plaintiff has received any benefit from defendant’s defective performance. As already pointed out, there is evidence that plaintiff will have to install a completely new roof. Because of defendant’s deficient performance, plaintiff is not in a position which requires that she pay for a new roof.

Nor does the evidence conclusively establish that plaintiff accepted the claimed benefit. She complained immediately and has expressed dissatisfaction at all times. We cannot infer an acceptance from the fact that plaintiff continued to live in the house. She was living in the house before defendant installed the new roof, and we know of no rule which would require that, in order to avoid a finding of implied acceptance, plaintiff was obligated to move out of her home.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Joyce Lynn TOWNSEND, Appellant, v. MEMORIAL MEDICAL CENTER et al., Appellees.
    No. 975.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 16, 1975.
    Rehearing Denied Nov. 13, 1975.

      Mark W. Owen, Wood, Boykin & Wolter, Corpus Christi, for appellant.
    Harry F. Maddin, Allison, Maddin, White & Brin, Inc., Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

Joyce Lynn Townsend brought this suit against, among others, Memorial Medical Center, a county hospital district, and Robert W. McCuistion, individually and as administrator of the hospital, seeking damages for injuries received when she was raped by a hospital orderly while she was a patient in the hospital. The defendants, Memorial Medical Center and Robert W. McCuistion, filed special exceptions to the plaintiff’s petition and the trial court sustained those exceptions. After the plaintiff declined to amend, the trial court rendered judgment dismissing the plaintiff’s cause with prejudice. The plaintiff appeals from that judgment.

The appellant’s petition alleges in part the following conditions and events: Townsend suffered a seizure and was admitted to Memorial Medical Center hospital as a paying patient. The attending physician, Dr. Norstrom, prescribed valium for her ailment described as convulsive seizures. Subsequently she suffered another seizure and Dr. Norstrom requested that she be transferred from her fourth floor room to the seventh floor for further treatment and observation. In a sedated condition she was taken from her room on a stretcher table by a male hospital orderly. The orderly pushed the stretcher down the hall to the “back elevator” and during the ascent to the seventh floor he stopped the car between floors. He then and there forcibly raped Ms. Townsend.

The appellant complains that the appellee Memorial Medical Center, described by the appellant as created by the Commissioners’ Court of Nueces County, failed to maintain procedures adequate to protect the patient’s safety, permitted a male orderly to transfer a sedated female patient, and maintained an elevator in such a condition that it could be stopped and locked between floors without a warning device.

The appellant pleads in the alternative that she has a cause of action sounding in contract against Memorial Medical Center. The substance of the contract is that the hospital would provide her with a hygienic and secure environment. The appellant alleges that the contract was breached and as a result of such breach she suffered actual and special damages.

About Robert W. McCuistion, she says he failed as administrator of the hospital to properly execute and supervise hospital procedures and policies designed for the safety and physical integrity of hospital patients and further failed to supervise the personnel charged with patient care and safety.

One of the procedures of which appellant particularly complains was violated was that which requires that two staff members accompany the transfer of a patient in the condition of appellant Townsend. In that regard, she says that the nurse in charge of the fourth floor directed that appellant be transported to the seventh floor in the sole custody of the male hospital orderly.

The appellant alleges that the acts of the several appellees constituted negligence and that each act was a proximate cause of her injury.

In answer to the charges the appellees, Memorial Medical Center ánd Robert W. McCuistion, filed a plea in bar, plea in abatement, and special exceptions. Their special exceptions set out, among other things, that the alleged cause of action is barred by the defense of governmental immunity and by the provisions of the Texas Tort Claims Act; that the petition failed to state a cause of action; and that the complained of acts and omissions could not have been the proximate cause of the appellant’s injuries.

In its judgment sustaining the special exceptions, the trial specifically found as a matter of law: that Townsend failed to state a cause of action because her pleadings were subject to the defense and bar of governmental immunity; that no cause of action was stated within the provisions of the Texas Tort Claims Act; that the alleged negligence could not have been a proximate cause of the alleged injury because the alleged rape was- an intervening cause. About the plaintiff’s contract theory of recovery, the trial court found as a matter of law that there was no contract, expressed, implied in fact or implied in law.

The appellant, in her points of error, complains of the order of the trial court in sustaining the special exceptions, dismissing her cause and holding as a matter of law that the pleadings failed to state a cause of action cognizable under the provisions of the Texas Tort Claims Act. It is urged by appellant that this Court give a liberal construction to Section 3 of the Texas Tort Claims Act and recognize a cause of action under the facts stated in her petition.

The Act has to a limited extent waived the defense of governmental immunity. Hopper v. Midland County, 500 S.W.2d 552, 554 (Tex.Civ.App. — El Paso 1973, writ ref’d n. r. e.); Dobbins v. Texas Turnpike Authority, 496 S.W.2d 744 (Tex. Civ.App. — Texarkana 1973, writ ref’d n. r. e.). Section 3 provides in part as follows:

“Each unit of government in the state shall be liable for money damages for personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. . . .”

The facts alleged in appellant’s petition also require a consideration of Section 14(10) of the Act which reads as follows:

“The provisions of this Act shall not apply to: (10) Any claim arising out of assault, battery, false imprisonment, or any other intentional tort including, but not limited to, disciplinary action by school authorities.”

The appellant’s petition recognizes that the defendant Memorial Medical Center is a governmental unit. If this Court is to find that a cause of action has been stated we must find that a cause of action has been stated under Section 3 of the Act and not prohibited by Section 14(10) of that Act.

The appellant contends that her petition alleges an injury which involved the use of a motor-driven vehicle, and also the condition and use of tangible property. In each case the “back elevator” is the vehicle or property involved. If we could say, which we do not, that an elevator is a motor-driven vehicle contemplated by the Act, or that appellant has set up in her petition negligence by the hospital caused from “some condition” or “some use of tangible property”, the appellant’s petition must still fail because of Section 14(10) of the Act.

As noted previously, Section 3 of the Texas Tort Claims Act is further limited by Section 14(10) which explains that the Act shall not apply to claims arising out of an intentional tort. Although the appellant contends on appeal that the rape, an intentional tort, is not the gist of her complaint, her petition leaves no other fair construction possible. If the appellant believes she has stated a cause of action such that injury occurred without the criminal act committed by the hospital orderly, she has not so stated with sufficient clarity in her petition.

The appellant also contends that her petition alleges a cause of action sounding in contract and that the doctrine of governmental immunity will not immunize a governmental entity from suits for breach of contract. To support this position she cites: Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So.2d 817 (1969) and Valdez v. County of Moffat, 161 Colo. 361, 423 P.2d 7 (1967).

Although some states in recent years have refused to apply the doctrine of governmental immunity in litigation involving state contracts, this is not true in Texas. Governmental immunity is the general rule in Texas. Hosner v. DeYoung, 1 Tex. 764, 769 (1847). The Texas Legislature has to a limited extent waived the defense in passing the Texas Tort Claims Act, but immunity is still the rule where the act does not apply. Hopper v. Midland, supra. A suit for breach of contract may not be filed and maintained against an agent of the State without first obtaining legislative permission. Texas Technological College v. Fry, 278 S.W.2d 480, 481 (Tex.Civ.App. — Amarillo 1954, no writ); Bryan v. Texas State Board of Education, 163 S.W.2d 837, 838 (Tex.Civ.App. — El Paso 1942, writ ref’d w. o. m.); San Antonio Independent School Dist. v. State Board of Education, 108 S.W.2d 445, 448 (Tex.Civ.App. — San Antonio 1937, no writ).

It is the appellant’s position that Section 5 of Tex.Rev.Civ.Stat.Ann. art. 4494n had impliedly waived governmental immunity. Section 5 provides that the Board of Managers of a county hospital district shall have the power and authority to sue and be sued. A similar provision is found in Section 3 of Tex.Rev.Civ.Stat.Ann. art. 4437e which applies to a Hospital Authority created by the Governing Body of a City. The appellant in Childs v. Greenville Hospital Authority, 479 S.W.2d 399, 401 (Tex.Civ.App. — Texarkana 1972, writ ref’d n. r. e.) argues that 4437e impliedly waived governmental immunity as a defense. The court rejected this contention saying: “The proposition has been frequently denied in analogous cases.” Appellant’s contract contention fails also.

A trial court may exercise a large measure of discretion in ruling upon special exceptions and unless injury or an abuse of discretion is shown, the ruling will not be disturbed. City of Abilene v. Jones, 355 S.W.2d 597, 600 (Tex.Civ.App. — Eastland 1962, no writ). The very essence and import of special exceptions is to force the clarification of and specification in pleadings that are vague, indefinite or uncertain. McFarland v. Reynolds, 513 S.W.2d 620, 626 (Tex.Civ.App. — Corpus Christi 1974, no writ). After the trial court sustained the special exceptions of the appellee, the appellant stated in open court that no additional amendments to her petition would be made. Under such circumstances, there being no cause of action stated in the remaining portion of the appellant’s pe'tition, the trial court properly rendered a final judgment of dismissal. Rutledge v. Valley Evening Monitor, 289 S.W.2d 952, 953 (Tex.Civ. App. — San Antonio 1956, no writ). All of appellant’s points of error have by us been considered and are overruled.

The judgment of the trial court is affirmed.

      . Tex.Rev.Civ.Stat.Ann. art. 6252-19 (1970)


author: BISSETT, Justice.

text:
    Bernardo De LEON, Appellant, v. TEXAS EMPLOYMENT COMMISSION, Appellee.
    No. 1012.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 16, 1975.
    Rehearing Denied Nov. 13, 1975.

      Bernardo De Leon, pro se.
    Michael E. Stork, Asst. Atty. Gen., Austin, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment that sustained the decision of the Texas Employment Commission that Bernardo De Leon was ineligible to receive unemployment benefits. Bernardo De Leon filed a claim with the Texas Employment Commission (Commission) wherein he sought unemployment benefits as a result of his being separated from employment with his employer on September 26, 1974. After the Commission determined that he was ineligible to receive such benefits, Bernardo De Leon, hereinafter called plaintiff, filed suit on his claim. Following a trial before the court, judgment was signed and rendered which upheld the decision of the Commission. Plaintiff has appealed that judgment to this Court.

Plaintiff, in his claim for unemployment benefits, stated:

“I was laid off because work was slow. I am not available for other work at this time as I have filed a grievance through the union to get my job reinstated.”

At the initial hearing on the claim, plaintiff told the examiner that he was available for part-time or temporary work, but that he was not available for permanent employment since he did not feel that it would be fair (to a prospective employer) for him to accept permanent employment and then have to quit if he was reinstated in his old job. He was ruled ineligible for unemployment benefits at all hearing levels of the Commission, because he was not “available for work” under Tex.Rev.Stat.Ann. Art. 5221b-2(d). The trial court, in upholding the decision of the Commission, found that there was substantial evidence to support that decision.

Plaintiff is not an attorney. He represented himself at all of the proceedings before the Commission and at the trial. He represents himself in this appeal. The brief filed by plaintiff in this Court leaves much to be desired. It does not comply with the briefing rules set out in the Texas Rules of Civil Procedure. However, we have concluded that it is in the interest of justice (and of the parties) not to require plaintiff to rebrief his case, since a liberal construction of some of the points in the brief reveals that he contends that a portion of Tex.Rev.Civ.Stat.Ann. Art. 5221b-l et seq. commonly known as the “Texas Unemployment Compensation Act”, is unconstitutional; that the judgment rendered by the trial court is unreasonable; and that the judgment is not supported by substantial evidence.

Plaintiff, in Point 6, contends that Tex.Rev.Civ.Stat.Ann. Art. 5221b-2(d) is unconstitutional because it violates Section 1 of the 14th Amendment of the United States Constitution. The particular portion of the statute under attack provides:

“An unemployed individual shall be eligible to receive benefits with respect to any benefit period only if the Commission finds that:
* * * * * *
(d) He is available for work.”

That portion of the statute which requires a person to be “available for work” is constitutional. It is not a law which abridges the privileges or immunities of citizens of the United States, deprives any person of life, liberty, or property, without due process of law or denies any person the equal protection of the law. Point 6 is overruled.

Point 3 asserts, in substance, that the judgment of the trial court is unreasonable and arbitrary. The general thrust of Point 5 is that the decision of the Commission is not supported by substantial evidence.

The Texas Unemployment Compensation Act was intended to provide a method of compensation for persons who are unemployed through no fault of their own. It was not intended to make benefits available to those who would restrict work to temporary work only. Our Supreme Court has held for a claimant to be eligible for unemployment benefits, he must be “available for work”, and cannot impose any restrictions on his availability for work that effectively detaches himself from the labor market of the community. Texas Employment Commission v. Holberg, 440 S.W.2d 38 (Tex.Sup.1969); Texas Employment Commission v. Hays, 360 S.W.2d 525 (Tex.Sup.1962). The eligibility requirement of the statute is a statutory condition which a claimant must meet before he is entitled to unemployment benefits.

The law in this State is well settled that an action to review a decision of the Texas Employment Commission is governed by the substantial evidence rule. Texas Employment Commission v. Holberg, supra; Nelson v. Texas Employment Commission, 290 S.W.2d 708 (Tex.Civ.App.— Galveston 1956, writ ref’d n. r. e.). Under that rule, the issue to be decided in the courts and on which evidence is heard is the reasonableness of the Commission’s decision; this is a question of law and an appellate court cannot render its decision based upon facts found by the trial court because the legal test of the reasonableness of the decision of the Commission is whether it is supported by substantial evidence, and nothing else; it is the Commission’s fact finding that is before the trial and appellate courts; a court cannot substitute its judgment for that of the Commission. City of San Antonio v. Texas Water Commission, 407 S.W.2d 752, 756 (Tex.Sup.1966). Therefore, in order for a court to overturn such a decision, the appealing party must show that the decision is arbitrary, unreasonable, capricious and made without regard to the facts. Gerst v. Guardian Savings and Loan Association, 434 S.W.2d 113 (Tex.Sup.1968).

In this case, there is no question but that there is substantial evidence upon which the Commission based its decision. Plaintiff testified at the hearings before the examiner, the Appeal Tribunal (of the Commission), and before the Commission itself, that he was not available for permanent employment because of reasons that were purely personal to him. There is no evidence which shows that the decision is unreasonable, arbitrary, capricious, and made without regard to the facts presented to the Commission. Where a claimant for unemployment benefits voluntarily restricts his employment to temporary work only, he is not “available for work”, and is, therefore, ineligible to receive unemployment benefits under the Act.

Under the record before us, plaintiff did not meet the eligibility requirement of Tex. Rev.Civ.Stat.Ann. Art. 5221b-2(d). Points 3 and 5 are each overruled.

Points 1, 2 and 4 do not present error. Plaintiff, in those points, complains that the “attorney for Texas Employment Commission” failed “to bring forth substantial evidence” to counteract plaintiff’s position, to support the judgment, or to support the findings of fact made by the trial judge. The burden was not on the attorney for the Commission to bring forward any evidence adduced at the trial in support of the judgment. The burden was on plaintiff to show in the trial court and in the appellate court that the decision of the Commission was not reasonably supported by substantial evidence. City of San Antonio v. Texas Water Commission, supra; Redd v. Texas Employment Commission, 431 S.W.2d 16, 26 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n. r. e.). Plaintiff did not meet that burden. Points 1, 2 and 4 are overruled.

We have carefully considered all of the remaining points of error which are brought forward by plaintiff in his brief. None of them have any merit, and they are all overruled.

The judgment of the trial court is affirmed.


author: ROBINSON, Justice.

text:
    MATTISON, INC., Appellant, v. W. F. LARSON, INC., Appellee.
    No. 8537.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 20, 1975.
    Rehearing Denied Nov. 17, 1975.

      Garner, Jesko & Purdom (Robert E. Garner), Lubbock, for appellant.
    Day, Owen & Lyle (Gene V. Owen), Plainview, for appellee.
   ROBINSON, Justice.

Plaintiff Mattison, Inc. sued defendant W. F. Larson, Inc., alleging that Larson defaulted on its contract to pay minimum royalties for an exclusive license to manufacture and sell litter collection machines known as “Litter Gitters.” The trial court, sitting without a jury, rendered judgment that plaintiff take nothing. Plaintiff appeals, contending that the contract is unambiguous, that parol evidence was inadmissible, and that defendant Larson is liable for the minimum royalties. Reversed and rendered.

The contract was typed by Larson’s secretary with minor changes from a longhand draft written by Mattison. The pertinent language reads as follows:

This agreement will be for three calender (sic) years and will begin 1 January, 1973. It will be renewable at the option of W. F. LARSON, INC. for additional one year periods.
Each year shall be payable in advance at the following mínimums.
Royalty: §150.00 for each standard highway machine. §30.00 for ea^h small machine.
Minimums: 1973 Standard machines--30 or §4,500.00 1974 " " —60 or 9,000.00 1975 " " --100 or 15,000.00
The agreement will be renewable at rate schedule of minimum royalties for years cited and minimum royalty payment of $15,000 for each calender (sic) year thereafter.

Mattison contends that the contract bound Larson to pay the minimum prescribed royalties for the years 1973-1975 as each came due. Larson contends that the contract is ambiguous, and that the parties intended it be an option contract renewable each year upon the prepayment of the royalties for the coming year. By written findings of fact and conclusions of law the trial court found that the first and last paragraphs quoted above are ambiguous; that the parties intended that the contract be renewable each year by prepayment of the royalties cited; and that the contract terminated by the failure of Larson to renew for 1974 by paying the minimum royalties.

The first question is whether the contract is ambiguous. A written contract is not ambiguous if it can be given one certain or definite legal meaning or interpretation. Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977, 980 (1941). Unless they are so patently conflicting that it is impossible to do so, the provisions must be read together so as to give effect to all provisions and so that none are rendered meaningless. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951). If the provisions can be harmonized and reconciled, the contract is not ambiguous, and parol evidence is not admissible to create an ambiguity or to give the contract a meaning different from that which its language imports. Lewis v. East Texas Finance Co., supra. But if, after applying established rules of interpretation, the meaning of the contract remains uncertain or doubtful or the contract remains reasonably susceptible to more than one meaning, it is ambiguous. Skelly Oil Company v. Archer, 163 Tex. 336, 356 S.W.2d 774 (1961).

In the contract before us, the first quoted paragraph, standing alone, is unambiguous. It provides, in plain language and without equivocation, that the agreement will be for three years with an option in Larson to renew for one year periods thereafter. The question, then, is whether the subsequent and last quoted paragraph reasonably can be read so as not to conflict with the first paragraph and not to create an ambiguity.

In Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800 (1940), the court inserted a comma in a mineral deed to assist in determining its meaning. The court stated the rule with reference to punctuation as follows:

The words, not the punctuation, are the controlling guide in construing a contract. If the meaning of the words is clear the court will interpret a contract according to their meaning and without regard to the punctuation marks or the want of them. While punctuation may be resorted to in order to solve an ambiguity which it has not created, punctuation or the absence of punctuation will not of itself create ambiguity.

When we insert commas after the word “renewable” and the figure “$15,000,” setting off the references to the minimum royalties, the last paragraph reads as follows:

The agreement will be renewable, at rate schedule of minimum royalties for years cited and minimum royalty payment of $15,000, for each calender (sic) year thereafter.

With commas inserted, it is apparent that this paragraph does not conflict with the first paragraph which provides a duration of three years for the contract. It maintains the three-year royalty rate schedule minimum of $150.00 for each standard machine and $30.00 for each small machine and provides for a minimum royalty payment of $15,000 for each year after 1975 if Larson elects to renew the contract for one year periods after the three year term. We conclude that the contract is not ambiguous when considered as a whole and in the light of established rules of interpretation.

The judgment of the trial court is reversed, and judgment here rendered, as prayed for by appellant on appeal, that Mattison, Inc. recover from W. F. Larson, Inc. the sum of $24,000.00, and costs of suit. Rules 139 and 434, Texas Rules of Civil Procedure.


author: REYNOLDS, Justice.

text:
    MODULAR TECHNOLOGY CORPORATION, METAL BOARD DIVISION, Appellant, v. The CITY OF LUBBOCK, Appellee.
    No. 8592.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 20, 1975.
    Rehearing Denied Nov. 17, 1975.

      Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellant.
    Fred 0. Senter, Jr., City Atty., James P. Brewster, Lubbock, for appellee.
   REYNOLDS, Justice.

Modular Technology Corporation, Metal Board Division, sought declaratory judgment that its contractual obligation to furnish “12,000 side loading refuse containers, + or - 25%” to the City of Lubbock was fulfilled when it had delivered 9,000 containers. The trial court, sitting sans jury and finding the contract to be ambiguous, heard parol evidence and rendered judgment, supported by findings of fact and conclusions of law, sustaining the city’s contention that the contract vested in the city the option to determine the number of containers it required within the limits of not less than 9,000 nor more than 15,000. We affirm.

In 1973, the City of Lubbock decided to convert to a fully mechanized trash pick-up system. Solicitation of bids led to a May 14, 1973 written contract with Modular, who agreed

. to furnish and deliver to Lubbock, Texas and set in place, at locations specified by the Director of Public Works of the City of Lubbock, a total of 12,000 side loading refuse containers, + or - 25%.

Modular’s deliveries of the refuse containers commenced in July, 1973, and terminated in October, 1974, when a total of 9,000 containers had been either set in place or stored at a city storage area. In the interim, Modular sent a July 19, 1974 letter to the city stating, “Modular feels that we will have completed our contract obligation at nine thousand refuse containers.” By letter dated September 16, 1974, the city requested Modular to furnish “15,000 refuse containers in accordance with the contract.”

Over Modular’s objection, the trial court conditionally admitted parol evidence bearing on the circumstances surrounding the making of the contract, the negotiations between the parties after the contract was executed, and the views of the parties with respect to the number of containers contemplated. The court found that the contract is ambiguous and that reference to extrinsic evidence is proper to determine the intention of the parties. The court then interpreted the contract

. as having vested in the Defendant City of Lubbock, Texas, the option of determining the ultimate number of side loading refuse containers to be manufactured and delivered within the limits of not less than 9,000 nor more than 15,000 units.

Modular takes issue with the trial court’s determination of contractual ambiguity and consideration of parol evidence to ascertain the intention of the parties respecting the number of refuse containers to be furnished under the contract. It is Modular’s position that the phrase “12,000 + or - 25%,” being the mathematical equivalent of “9,000 to 15,000,” compels the legal conclusion that the instrument signed by the parties is a minimum-maximum contract that is only enforceable to the minimum amount specified. We do not agree.

Obviously, if the parties had intended a minimum-maximum contract for 9,000 to 15,000 containers, it would have been far simpler to so state rather than employing the phrase “12,000 side loading refuse containers, + or - 25%.” Moreover, Modular’s approach ignores the central figure of 12,-000 used in the phrase the parties agreed upon to designate the number of containers.

The primary concern is to find and give effect to the true intention of the parties from the language used in the contract. However, neither the research of counsel nor ours has revealed an authoritative meaning of the quantity designated by a phrase similar to “12,000 + or - 25%.” When the contract is tested by the relevant rules of construction, the lack of clarity of language leaves the contract ambiguous insofar as the quantity of containers that are to be furnished because it is genuinely uncertain which one of several meanings is proper. The expression could mean that the contract is (1) a minimum-maximum contract enforceable to the minimum with any quantity up to the maximum, according to the authority relied upon, (a) left to future negotiations, or (b) dependent upon the option of the party who must first act in performing the contract, or (c) conditioned upon the option of the party who first exercises it, or (d) at the option of the purchaser if the option is exercised in good faith and within the limits set by commercial reasonableness; or (2) a requirements contract with the city having the sole option to determine the quantity within the minimum-maximum limits. The only thing that we may say with certainty after reading the language is that the contractual phrase used indicates precision in quantity was not intended by the parties, but that there would not be a variance of more than 3,000 above or below the definite quantity of 12,000.

Since the language is susceptible of more than one interpretation, it was the duty of the court to consider the circumstances existing when the contract was executed and the interpretation placed upon it by the parties themselves, not to vary the terms, but to ascertain the true intention of the parties as they expressed it in the language of the contract. Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504 (1942). It is familiar law that where a contract is ambiguous in its terms, the construction given those terms by the parties before any controversy has arisen as to their meaning will, when reasonable, be adopted and enforced by the courts. E. H. Perry & Co. v. Langbehn, 113 Tex. 72, 252 S.W. 472 (1923).

Suffice it to note that the court’s declaratory judgment that the city had the contractual option to determine the containers it required within the 9,000 to 15,000 range finds adequate support in the properly admitted testimony of Modular’s officers. Paul 0. Lee, Jr., president of Modular, confirmed that the “use of this (12,000) plus or minus twenty-five percent” phrase was due to an inability to foresee exactly what number of containers would be required, and he admitted that it was Modular’s intention and hope in submitting its bid that the plus twenty-five percent ultimately would be determined by the city. Gene Zara, General Manager of Modular’s Metal Board Division, appearing before the city council on 27 June 1974 to request the city to pay the increased cost of steel over its price at the date of the contract for 2,000 containers above the 9,000 minimum, acknowledged that the contract would commit “for up to 15,000 ... if the City does desire.”

Modular alternatively argues that, if the contract is ambiguous, the court erred in failing to construe the contract against the city which drafted it because there are at least two reasonable constructions to be given the contract. The rule contended for becomes applicable when, from a consideration of the entire instrument, there is a reasonable doubt as to which of two constructions best accords with the intent of the parties, Amory Manuf’g. Co. v. Gulf, C. & S. F. Ry. Co., 89 Tex. 419, 37 S.W. 856 (1896), but the rule has no application where, from a consideration of the instrument in the light of the attendant circumstances, the intent of the parties is clear and a resort to the rule will defeat that intent. Colquitt v. Eureka Producing Co., 63 S.W.2d 1018 (Tex.Comm’n App.1933); Hegar v. Tucker, 274 S.W.2d 752 (Tex.Civ.App. — Galveston 1955, writ ref’d n. r. e.).

Lastly, and again alternatively, Modular contends that the court erred in failing to hold the contract fully performed because the city did not in good faith timely determine its requirements as a matter of law. The contention is not viable. Neither party filed pleadings addressed to the questions whether the city, if it had the option, exercised that option in good faith and within the limits of commercial reasonableness as required by V.T.C.A., Bus & C. § 2.311. Those questions are fact questions to be resolved in the trial court. Farmers Equipment Co. v. Miller, 252 Ark. 1092, 482 S.W.2d 805 (1972); Dorsey Bros., Inc. v. Anderson, 264 Md. 446, 287 A.2d 270 (1972); Robinson v. Jonathan Logan Financial, D.C. App., 277 A.2d 115 (1971). Since the trial court was not requested to, and did not, determine those factual questions and render declaratory judgment with respect thereto, we express no opinion in the matter. This court is not permitted to determine material fact questions and render judgment thereon. Gulf Land Co. v. Atlan tic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939).

Modular’s points of error are overruled.

The declaratory judgment rendered by the trial court is affirmed.


text:
    VANGUARD INSURANCE COMPANY, Appellant, v. PLAINS HELICOPTER, INC., dba Slaton Flying Service, Appellee.
    No. 8602.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 20, 1975.
    Rehearing Denied Nov. 17, 1975.
    Key, Carr, Evans & Fouts (Donald M. Hunt), Lubbock, for appellant.
    Nelson, McCleskey, Harriger & Brazill (Ernest R. Finney, Jr.), Lubbock, for appel-lee.
   REYNOLDS, Justice.

The sole question presented in this declaratory judgment action is whether a helicopter, insured except “while . . . used for crop dusting or spraying operations,” was covered when, after the actual spraying had been finished and the helicopter had landed, it crashed after take-off as a landing was attempted on the back of the nurse truck, used as an integral part of the spraying operations, to refuel for the return flight. The trial court determined and declared, and correctly so in our view, that the helicopter was not being used for crop dusting or spraying operations at the time of the crash and that excluded coverage did not apply. Affirmed.

Vanguard Insurance Company instituted this declaratory judgment action for the determination whether its aircraft hull and liability policy issued to Plains Helicopter, Inc., d/b/a Slaton Flying Service, provided coverage for a Plains’ helicopter at the time it crashed. The parties stipulated certain facts which were adopted by the court as its findings of facts.

Based on an application from an independent agent, Vanguard issued its aircraft hull and liability policy insuring Plains’ aircraft, among which were helicopters used for crop dusting and spraying and the training of pilots. Although Plains did not intend to secure, and the agent did not intend to provide, any coverage while the aircraft were being used for crop dusting and spraying operations, through accident or mistake an endorsement excluding this coverage was not made a part of the policy.

On the morning of the day the helicopter crashed, Robert Earl Evans, a professional pilot for Plains, flew the helicopter from its home base at Slaton to the A. C. Light landing strip near Olton where Light operated a business known as Olton Spraying Service. By a contractual arrangement, Light paid Plains to dust or spray crops of farmers with whom Light had contracted for spraying services. Light had arranged for Plains to spray a field of potatoes near Hart, and Evans flew the helicopter to the field. At the field was a Plains nurse truck, equipped with a landing platform on which the helicopter could be loaded with fuel and chemicals, which, although used in the training of pilots, was an integral part of the spraying operations.

Evans sprayed a part of the field of potatoes in the morning, but when wind conditions prevented further spraying, Evans landed the helicopter in the field near the nurse truck to wait for the wind to abate. Later in the afternoon, the wind abated and Evans sprayed the remainder of the field. Evans landed near the nurse truck to see if there were any further instructions from Gene Light, the son of A. C. Light, who was serving as a flagman. At that time, Gene Light left the field without giving Evans any instructions, but he requested that Evans wait until he returned. Light had no more crops in the area to be sprayed, but Evans did not know this.

Gene Light had not returned when Evans realized it was getting too late in the day to spray. Evans decided to refuel the helicopter and return to the Light landing strip because the helicopter could not be left in the field overnight. Evans took off from the ground and, as he attempted to land on the nurse truck to refuel for the return flight, the helicopter malfunctioned and crashed. Florencio Sauceda, the operator of the nurse truck who was standing on the ground nearby, sustained fatal injuries as the result of the crash.

Sauceda’s heirs filed a wrongful death action against Evans and Plains. Plains requested Vanguard to defend the action under the liability portion of the policy and to pay the damages sustained to the helicopter under the hull portion of the policy. At this time it was first discovered that the policy did not contain any exclusion of coverage while Plains’ aircraft were being used for crop dusting or spraying operations.

Following negotiations between Vanguard and Plains, Vanguard accepted the defense of the wrongful death action pursuant to a non-waiver agreement, and the parties agreed to attach Endorsement 13 to the policy. The endorsement, made effective as of the date of the policy, reads:

Fixed Wing or Rotor Aircraft owned by the Named Insured certificated as Restricted and equipped for crop dusting and spraying uses shall be afforded insurance under this policy for uses by the Named Insured of “Limited Commercial” as defined in VII(C) of the Definitions. This extension of insurance shall not apply while the aircraft are used for crop dusting or spraying operations.

At the time the agreements were made, Vanguard and Plains were aware of all the facts and circumstances that were known to them at the date of the trial, and both were aware that Vanguard planned to file this declaratory judgment action.

Simplified, the question is: were the spraying operations completed when the helicopter crashed? Vanguard contends that an integral part of the excluded operations was continuing at the time of the crash and, therefore, there was no coverage; Plains responds that the excluded activity had been completed before the crash occurred and the helicopter was then insured. Because of the factual situation, we think it unnecessary to discuss at length the positions of the parties regarding the intention to exclude extra-hazardous activity and how far the area of activity should be extended or limited.

The rights of the parties are grounded in contract. The exclusion applies only “while the aircraft are used for crop dusting or spraying operations.” The policy does not define the word “operations” nor otherwise prescribe a test for determining when operations begin or end. In this situation, the terms used in an insurance contract are to be given their plain, ordinary and generally accepted meaning. General American Indemnity Company v. Pepper, 161 Tex. 263, 339 S.W.2d 660 (1960). The word “operation” was given its generally accepted meaning of “A doing or performing action; work; a deed,” in Pan American Insurance Company v. Cooper Butane Company, 157 Tex. 102, 300 S.W.2d 651 (1957), and there the Supreme Court held that the word “operations” was used in an insurance contract as a synonym of the word “work.” It has been said that when parties to an insurance contract use language which has been held by the courts to have a certain meaning, they intend to give that meaning to the language. Davis v. National Security Life & Cas. Ins. Co., 255 S.W.2d 576 (Tex.Civ.App. — El Paso 1953), rev’d on other grounds, 152 Tex. 316, 257 S.W.2d 943 (1953).

So here, the parties, in excluding coverage while the helicopter was used for crop dusting or spraying operations without qualifying the usual meaning of the word “operations,” are held to have intended to use the word “operations” as a synonym of the word “work.” Thus, the operations excluded by the insurance contract were completed when the work necessary to dust or spray the particular crop was done. The potato crop spraying had been completed, and nothing else remained or was required to be done, when the helicopter crashed. It follows that at the time of the crash, the helicopter was not being used for crop dusting or spraying operations. The fact that the crash occurred when Evans, some time after the work of spraying the potatoes had been finished, was preparing to land on the nurse truck, which had been used as an integral part of the spraying operations, does not justify a holding that the crop spraying had not been completed at that time.

The judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Bill BAKER, Appellant, v. Bob BULLOCK, Comptroller of Public Accounts of the State of Texas, Appellee.
    No. 12346.
    Court of Civil Appeals of Texas, Austin.
    Oct. 22, 1975.
    Rehearing Denied Nov. 19, 1975.

      Michael L. Cook, Clark, Thomas, Winters & Shapiro, Austin, for appellant.
    John L. Hill, Atty. Gen., Catherine Belt Jacob, Asst. Atty. Gen., Austin, for appel-lee.
   PHILLIPS, Chief Justice.

Appellant Baker sued the appellee Comptroller for a refund of approximately $8,000 in sales taxes that the Comptroller had demanded and received. On a single special issue presented it, the jury awarded appellant the refund sought. The trial court then sustained appellee’s motion for judgment non obstante veredicto and entered judgment that appellant take nothing by his suit. We affirm this judgment.

Appellant is before us on a single point of error, which we overrule, complaining of the action of the trial court in granting appellee’s motion non obstante veredicto. He argues there was sufficient evidence before the court to support the jury’s finding that the determination of sales tax deficiency by the appellee was unreasonable, excessive, or that it was achieved capriciously or arbitrarily.

The Comptroller’s determination of the taxes in question was obtained by use of the purchase invoice method. This formula is authorized by Tex. Tax.-Gen. Ann. art. 20.05(I)(l)(a) (1969) and has been employed as a standard audit method by the Comptroller’s office since 1962. Briefly stated, it involves determining the merchant’s tax liability by the calculation of a fraction consisting of the total of his purchases of tax-exempt merchandise as the numerator, and his total merchandise purchases as the denominator. His gross sales are then multiplied by this fraction and the result, his tax-exempt sales, is subtracted from his gross sales to obtain his taxable sales. The current tax rate is then applied to his taxable sales to obtain the amount of tax due.

Appellant contends that the deficiency determination arrived at as a result of this method is incorrect since, first, the auditor did not take into account the fact that sales sometimes occur in tax periods other than the tax period of purchase; second, changes in markup and the difference in markup between taxable and exempt items were not considered. Finally, appellant insists, the Comptroller did not consider the effect of the transfers of merchandise between stores.

Whether these purported defenses were valid cannot be determined from the record. Appellant presented no records to substantiate his contentions.

By statute, the Comptroller’s delinquency certificate is accorded the presumption of correctness. In order to overcome this presumption, the taxpayer must conclusively establish he owes no tax. This was appellant’s burden, and we agree with the decision of the trial court that he failed, as a matter of law, to discharge it. See Big Country Club, Inc. v. Humphreys, Administrator, Texas Alcoholic Beverage Commission, 511 S.W.2d 315 (Tex.Civ.App.1974, writ ref’d n. r. e.); Smith v. State, 418 S.W.2d 893 (Tex.Civ.App.1967, no writ).

Vague allegations alone by a taxpayer seeking a refund to the effect that the Comptroller’s method of ascertaining the tax due was either incorrect or inapplicable are not sufficient to merit consideration by the trier of facts. The law is clear that in a suit for a refund, the taxpayer must show not only that he overpaid, but also, the exact amount of the overpayment. Calvert v. Union Producing Co., 154 Tex. 479, 280 S.W.2d 241 (1955); A. W. Cullum & Co. v. Calvert, 450 S.W.2d 419 (Tex.Civ.App.1970, writ ref’d).

The judgment of the trial court is affirmed.

      . This refund was sought under the provisions of Article 20.10, Texas Civil Statutes, Taxation-General.

      . Tex. Tax.-Gen. Ann. art. 20.09(E) (1969).


author: MOORE, Justice.

text:
    KAUFMAN NORTHWEST, INC., Appellant, v. BI-STONE FUEL COMPANY, Appellee.
    No. 858.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 23, 1975.
    Rehearing Denied Nov. 13, 1975.

      Kurt A. Philipps, Morgan, Shumpert, Huff, Philipps, Mosley & Co., Kaufman, for appellant.
    J. Dan Bohannan, Burford, Ryburn & Ford, Wayne Pearson, Dallas, for appellee.
   MOORE, Justice.

This is an eminent domain proceeding. Appellee, Bi-Stone Fuel Co., instituted condemnation proceedings against appellant, Kaufman Northwest, Inc., for the purpose of condemning a pipeline easement seventy feet in width across a 536-acre tract of land owned by Kaufman Northwest. The land taken consisted of 8.75 acres and was condemned for the purpose of constructing a 20-inch natural gas pipeline. Trial was before a jury and resulted in a verdict awarding Kaufman Northwest the sum of $5,250.00 for the 8.75 acres taken and $5,274.10 for damages to the remainder. The trial court entered judgment on the verdict and Kaufman Northwest perfected this appeal.

We affirm.

The appellant, defendant below, by its first point contends that the trial court erred in admitting in evidence Plaintiff’s Exhibit No. 2 which consisted of an aerial photograph of appellant’s tract of land with notations denoting the types of soil existing on the 536-acre tract in question. The exhibit was prepared by the U. S. Department of Agriculture, Soil Conservation Service of Kaufman County, Texas. Appellee offered the exhibit in evidence as a business record under Art. 3737e, V.A.T.S. Appellant’s sole objection to its admission was on the ground that a proper predicate was not laid for admission as a business record.

Article 3737e provides:

“Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:
(a) It was made in the regular course of business;
(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
(c)It was made at or near the time of the act, event or condition or reasonably soon thereafter.
“Sec. 2. The identity and mode of preparation of the memorandum or record in accordance with the provisions of paragraph one (1) may be proved by the testimony of the entrant, custodian or other qualified witness even though he may not have personal knowledge as to the various items or contents of such memorandum or record. Such lack of personal' knowledge may be shown to affect the weight and credibility of the memorandum or record but shall not affect its admissibility.”

Section 4 of 3737e defines the term “business” as to include “any and every kind of regular organized activity whether conducted for profit or not.” Clearly the Soil Conservation Service is a “business” within the meaning of the statute. Thus, to establish a proper predicate appellee was required to meet only the requirements of paragraphs (a), (b) and (c) in Section 1 through the testimony of a qualified witness.

Prior to offering the exhibit, appel-lee called as a witness, Cecil Chaney, who testified that he was an employee of the U. S. Department of Agriculture, Soil Conservation Service Kaufman County and head of the Terrell Sub-unit. He testified (1) that the Soil Conservation Service keeps and maintains aerial maps of the entire county and that such records, including plaintiff’s Exhibit No. 2, are within his custody and control; (2) that aerial maps with soil notations are regularly made and kept by the Soil Conservation Service; (3) that the ‘maps are regularly used by the Soil Conservation Service employees in developing conservation plans with landowners; (4) that the maps are kept in the regular course of the business of the Soil Conservation Service; (5) that the maps are prepared by soil scientists of the Soil Conservation Service after a first-hand investigation and soil testing of the particular tract to be mapped out; (6) that the particular map offered in evidence was made soon after the time the soil scientist investigated and soil tested appellant’s land. Mr. Chaney further testified that the number “77” plotted by the soil scientist on the exhibit denotes “Kaufman Clay, zero-to-one percent slope, frequently flooded” and the number “52” denotes “gowan and fine sandy loam, zero-to-one percent slope, frequently flooded.” As we view the record, the foregoing testimony was sufficient to establish a proper predicate for the introduction of the instrument. We therefore hold that the trial court did not err in permitting it to be offered in evidence as a business record.

In any event, the exhibit was admissible under the provision of Article 3731a, V.A.T.S. In substance this statute provides that any written instrument which is permitted or required by law to be made, filed or kept by an officer or clerk of the United States or his deputy or employee, shall, so far as relevant, be admitted in the courts of this State as evidence of the matters stated therein. The Secretary of Agriculture is authorized to conduct surveys and research relating to soil conservation and publish the result of such surveys. 16 U.S.C.A. Secs. 590a, 590g(a), 590i (1974). There is no question that the exhibit in question was a written instrument permitted or required to be made or kept by an officer of the United States or his employee. The written report, being a United States Government report was admissible under the statute.

Appellant further contends under its first point of error that even if the exhibit amounted to a business record, it was still inadmissible because it contained opinions and conclusions of the soil scientist who made the notations. This contention was not urged at the trial and may not be urged for the first time on appeal. Houston & T.C.R. Co. v. Knapp, 51 Tex. 569, 577 (1879); Kettle v. Smircich, 415 S.W.2d 935, 938 (Tex.Civ.App. — Corpus Christi 1967, no writ); Seymour v. Texas & N.O.R. Co., 209 S.W.2d 814 (Tex.Civ.App. — El Paso 1947, writ ref’d). When the exhibit was offered in evidence, appellant objected to it only on the ground that a proper predicate was not laid. The general rule is that grounds specified by appellant in its objection at trial may not be enlarged on appeal to include other grounds not asserted at trial. Bohanan v. Hans, 26 Tex. 445, 452 (1863); City of Wichita Falls v. Jones, 456 S.W.2d 148, 154 (Tex.Civ.App. — Fort Worth 1970, no writ); Texas Employers Insurance Association v. Hicks, 271 S.W.2d 460, 464 (Tex.Civ.App.— Eastland 1954, writ dism’d). Appellant’s first point is overruled.

By its second point, appellant complains of the admission in evidence of appel-lee’s Exhibit No. 5 which is nothing more than an enlarged drawing of a portion of appellee’s Exhibit No. 2. It depicts those portions of appellant’s tract which are classified as overflow land. This exhibit was offered in evidence in connection with testimony of the witness Osborne who testified he prepared the exhibit from an exact copy of Exhibit No. 2. He testified that Exhibit No. 5 accurately portrays that which is contained in Exhibit No. 2 and that by taking the various soil classification numbers listed by the soil scientist on Exhibit No. 2, he was able to determine what part of appellant’s land was classified as overflow land. He further testified that upon taking the information found on Exhibit No. 2, he determined that approximately 150.6 acres of appellant’s land were classified as overflow land. Appellant objected to the exhibit on the ground that Osborne testified he prepared Exhibit 5 from a copy of Exhibit 2 rather than the original. Appellant argues that there is nothing to show that the copy used to prepare Exhibit five was an authentic copy of Exhibit No. 2. The contention is without merit and is overruled. Prior to the time the exhibit was admitted in evidence, the witness Osborne testified the copy he used in preparing Exhibit 5 was exactly the same as Exhibit No. 2. While on the witness stand he compared the copy with the original and stated unequivocally that they were the same. There is no evidence to the contrary. Since the undisputed proof shows that Exhibit No. 5 was nothing more than an accurate enlargement of Exhibit No. 2, which was properly admitted in evidence, the trial court committed no error in permitting it to be admitted in evidence.

By its third point of error, appellant contends that the trial court erred in excluding from evidence Defendant’s Exhibits Nos. 18 and 19 which were reports filed with the U. S. Department of Transportation showing leaks in appellee’s pipelines in Leon and Fannin County. Appellee objected to the exhibits on the ground that there was. no evidence showing that the other lines were generally similar in their important or essential characteristics to the line in question, as required by the holding in Delhi Gas Pipeline Co. v. Mangum, 507 S.W.2d 631, 635 (Tex.Civ.App. — Tyler 1974, no writ). We overrule the point.

Appellant’s Exhibit No. 18 is a report filed with the Department of Transportation showing a leak occurred on one of appellee’s lines in Leon County. The report shows the leak was caused by corrosion. The evidence shows several material dissimilarities in that line and the line in question. The present line was constructed with cathodic protection applied so as to prevent corrosion. The pipe was inspected by the use of x-ray before installation. The thickness of the pipe was substantially greater than that of the Leon County line. The line was constructed with new pipe, whereas the Leon County line was constructed with used pipe; had no cathodic protection and was not x-ray inspected. In other respects some similarity existed. While the court’s ruling is not entirely free from doubt, we find no clear abuse of discretion on the part of the trial judge in refusing to admit Exhibit No. 18 relating to the leak in the Leon County line. With regard to the leak in the Fannin County line, the evidence shows that the rupture was caused solely by having been struck twice by the blade of a bulldozer while constructing a lake. There is no evidence that the leak was caused by anything wrong with the pipe such as corrosion or for any other cause. Appellant’s purpose in offering such evidence was to show that pipelines are prone to leak irrespective of how well they are constructed. We fail to see how a rupture caused by a bulldozer would constitute proof showing pipelines are prone to leak and accordingly find no error in the ruling of the court in excluding appellant’s Exhibit No. 19.

Even if the trial court’s ruling could be construed as error, we fail to find how any harm could have resulted to appellant in view of other evidence showing leaks regularly occur in pipelines. Tex.R. Civ.P. 434. The only thing the two exhibits would have established was that pipelines do, on occasion, leak. There is no testimony that the leaks in Leon and Fannin Counties caused any explosion or damage. The record reveals that appellant was given a free rein to produce testimony of five witnesses who testified that leaks can and do occur in pipelines. Appellant also proved the fear of danger in the minds of the public and its effect on market value of the land near the pipeline. 'Consequently, the exhibits in question were merely cumulative of the oral testimony in which appellant repeatedly established that pipelines do, on occasion, leak. Exclusion of docu'mentary evidence is harmless where similar evidence is before the jury by way of testimony. Ynsfran v. Burkhart, 247 S.W.2d 907, 912-913 (Tex.Civ.App. — Austin, 1952 writ ref’d n. r. e.); Caraway v. Flagg, 277 S.W.2d 803, 806 (Tex.Civ.App. — Dallas 1955, writ ref’d n. r. e.); Weiler v. Weiler, 336 S.W.2d 454, 458-459 (Tex.Civ.App. — Eastland 1960, no writ).

Appellant’s fourth and fifth points of error complain of the trial court admitting in evidence appellee’s Exhibit No. 1 showing that appellant’s land was burdened with another gas pipeline easement extending across the land maintained by Lone Star Gas Company. Appellant objected on the ground that evidence of other existing easements on the land is not admissible by the condemnor in the absence of evidence showing similarity. We find this contention to be without merit. The existing Lone Star Easement and testimony concerning it were introduced to show that the condemned tract of land was already burdened prior to the pipeline in question. When offered for this purpose, the evidence tends to diminish the market value of appellant’s tract. It is therefore admissible irrespective of a showing of similarity. Buzzard v. MAPCO, Inc., 499 S.W.2d 352, 358 (Tex.Civ.App. — Amarillo 1973, writ ref’d n. r. e.); Northern Natural Gas Co. v. Johnson, 278 S.W.2d 410, 412 (Tex.Civ.App. —Amarillo, 1954, writ ref’d n. r. e.). Appellant’s fourth and fifth points are overruled.

By points six and seven the appellant urges that the trial court erred in refusing to grant its motion for new trial on the ground that juror Royce Ford was disqualified as a matter of law in that he gave incorrect and erroneous answers on voir dire examination resulting in injury to appellant.

At the hearing on motion for new trial in response to questions propounded by appellant’s counsel, juror Ford testified he did not like Mr. Council, a witness and one of the stockholders of Kaufman Northwest. He testified, however, that he knew Mr. Council only by name and had no reason to dislike him other than from first impression. He testified repeatedly that he told the truth on voir dire examination when he stated he had no bias or prejudice against Mr. Council. He also testified he had no bad feelings toward Mr. Council. Juror Splawn testified that before the evidence was concluded that Ford told him that Mr. Council had built a house for one of his relatives and when the windows fell out, Council did nothing about it and that Council was good at that kind of thing. Ford denied making the statement. While the record reveals that Ford and another juror argued during the jury’s deliberation that the pipeline caused no damages to the remainder of the land, there is no evidence that Ford made any prejudicial remarks about Council during the jury’s deliberation. Ten of the jurors agreed on $10.00 per acre as damages to the remainder, but juror Ford and one other juror did not agree and refused to sign the verdict. At the request of appellant the trial court filed findings of fact and conclusions of law. Pursuant to the request, the trial court found: (1) that the juror, Royce Ford, answered truthfully all questions propounded to him on voir dire examination at the time the jury was being selected, (2) that the juror, Royce Ford, did not conceal any bias or prejudice toward D. G. Council, (3) that the juror, Royce Ford, was not disqualified to serve as juror, (4) that the juror, Royce Ford, was not guilty of jury misconduct, (5) that the juror, Royce Ford, was not guilty of jury misconduct which affected the jury’s verdict or otherwise resulted in probable injury to the defendant.

It is well settled that findings made by the trial court in overruling a motion for new trial are binding on the Court of Civil Appeals if supported by the evidence. Clark v. Levingston Shipbuilding Co., 226 S.W.2d 212, 217 (Tex.Civ.App.— Beaumont 1949, writ ref’d n. r. e.); Dallas Railway & Terminal Co. v. Bishop, 203 S.W.2d 651, 656 (Tex.Civ.App. — Amarillo 1947, writ ref’d n. r. e.). Juror Ford testified at the hearing on the motion for new trial that his opinion as to the damage suffered by the defendant was not based on what he may have thought of any particular party in the lawsuit and that in the jury deliberations he used only the evidence presented in the case in arriving at his opinion on damages. At most, the evidence is only conflicting; therefore, we are not at liberty to disturb the trial court’s findings. Brawley v. Bowen, 387 S.W.2d 383, 384 (Tex.1965).

Appellant’s eighth and ninth points assert that the trial court erred in excluding the testimony of one of appellant’s witnesses showing that appellant bought the land for the purpose of subdividing it, and in excluding appellant’s Exhibit No. 20, which was a plat showing how appellant intended to subdivide it into smaller tracts in anticipation of future development. Appellant argues that both the testimony showing that appellant’s purpose in buying the land was eventually to subdivide it and defendant’s Exhibit No. 20 were admissible to show the adaptability of appellant’s land to subdivision and development. We are not in accord with this contention. The record reveals that at the time appellant’s land was taken, it was raw acreage being used for grazing purposes.

Appellee stipulated before the presence of the jury that appellant’s land is physically susceptible and adaptable to subdivision and smaller tracts of land. While proof of the adaptability of land for certain purposes is admissible, it has been held that evidence as to the landowner’s subjective intent concerning the future use of the property is inadmissible, because such evidence opens a field too speculative and uncertain. Johnson v. State, 474 S.W.2d 327, 329 (Tex.Civ. App.—Austin 1971, writ ref’d n. r. e.); Melton v. State, 395 S.W.2d 426, 429 (Tex.Civ. App.—Tyler 1965, writ ref’d n. r. e.); American Guaranty Life Health and Accident Insurance Co. v. State, 332 S.W.2d 135, 140 (Tex.Civ.App.—Austin 1960, no writ). In light of appellee’s stipulation admitting appellant’s land was adaptable for subdivision, such oral testimony was only cumulative on the question of adaptability and its exclusion did not result in any harm to appellant.

Appellant’s Exhibit No. 20 showing the manner in which appellant intended to subdivide the land was likewise inadmissible, Where the property condemned is raw acreage it is not proper to admit in evidence hypothetical plats of nonexistent subdivisions, for the reason that they tend to cause the jury to value the land as lots in an established subdivision where none exists. Texas Electric Service Co. v. Yater, 494 S.W.2d 271, 275 (Tex.Civ.App.—El Paso 1973, writ ref’d n. r. e.); State v. Curtis, 474 S.W.2d 635, 637 (Tex.Civ.App.—San Antonio 1971, no writ); Lower Nueces River Water Supply District v. Collins, 357 S.W.2d 449, 452 (Tex.Civ.App.—San Antonio 1962, writ ref’d n. r. e.). Appellant’s eighth and ninth points are overruled.

By its tenth point, appellant contends that the trial court erred in refusing to strike appellee’s amended petition. The amendment was requested within 7 days of trial and the court permitted the amendment over appellant’s objection claiming surprise. Appellant was offered a continuance by the court, but declined such offer and made no motion of its own for a continuance. Appellant thus waived its right to complain of the ruling. Kree Institute of Electrolysis, Inc. v. Fageros, 478 S.W.2d 569, 573 (Tex.Civ.App.—Waco 1972, no writ); Miller v. Wagoner, 356 S.W.2d 363, 367 (Tex.Civ.App.—Austin 1962, no writ); Dirks v. Dirks, 302 S.W.2d 471, 474 (Tex.Civ.App.—San Antonio 1957, writ dism’d); Tex.R.Civ.P. 63.

Appellant’s eleventh point contends that there is insufficient evidence to support the jury’s answers to special issues 2 and 4 and that such answers are against the overwhelming weight and preponderance of the evidence.

By special issue number 2, the jury found the market value of the 8.75-acre strip condemned to be $3,500.00 immediately after its acquisition by Bi-Stone Fuel Co. By special issue number 4, the jury found the market value of the remaining 527.41 acres to be $522,135.00 immediately after the condemnation. Appellee called appraisal witnesses who testified as to the market value of the property after the easement was condemned. Each testified as to his expert qualifications. Appellant offered three expert witnesses as to value. The jury’s finding to special issue No. 2 is the same as that testified to by one of appellant’s own expert witnesses. The jury’s finding to special issue No. 4 computes out to $990 per acre which is only $10 less per acre than the $1,000 per acre value figure testified to by one of appellant’s witnesses. The amount fixed by the jury was greater than that testified to by appellee’s expert witnesses and well within the range of the expert testimony. After weighing and balancing all of the testimony of the expert witnesses, both that in favor of the verdict as well as that against the verdict, we have concluded that we would not be justified in holding that the evidence was insufficient or so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust. Appellant’s eleventh point is overruled.

Other points brought forward by appellant have been considered and found to be without merit and are overruled without discussion.

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


author: McDONALD, Chief Justice.

text:
    Roy H. GHEEN, Jr., and wife Peggy Luthi Gheen, Appellants, v. DIAMOND SHAMROCK CORPORATION and the Shamrock Pipeline Corporation, Appellees.
    No. 5473.
    Court of Civil Appeals of Texas, Waco.
    Oct. 23, 1975.
    Rehearing Denied Nov. 20, 1975.

      Tark Cook, Perryton, for appellants.
    Underwood, Wilson, Sutton, Berry, Stein & Johnson, Amarillo, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants Roy Gheen and wife from two judgments: 1) permanently enjoining defendants from interfering, obstructing or preventing plaintiff Shamrock’s ingress, egress and repairing its pipeline, which passes across defendants’ land; 2) permanently enjoining defendants from interfering with plaintiff Shamrock’s use of a well on defendants’ land for disposal of salt water as provided in an agreement dated January 4, 1963; and 3) holding such January 4, 1963, agreement in present force and effect.

Defendants for many years have owned Section 664, Block 43, H & TC Survey in Ochiltree County. On November 8, 1962, they conveyed to plaintiff a pipeline easement and right-of-way across 334.37 rods of their property for $1926. Such easement and right-of-way provided for all necessary rights of ingress and egress to and from the pipeline easement across defendants’ property.

On January 4, 1963, defendants (for a consideration of $1000) executed an agreement granting plaintiff the right to complete an abandoned oil well on defendants’ property, and use it to dispose of salt water from other wells of plaintiff. Such agreement granted plaintiff right of ingress and egress for such purposes, and provided: “This agreement and grant shall remain in effect for * * * 5 years ⅜ * * and thereafter until said disposal well is plugged and abandoned by Shamrock, but not to exceed 30 years from date hereof. If this agreement is in effect 10 years from date hereof Shamrock shall pay [defendants] $1000. * * * and such payment may be made by depositing same to their credit in the First State Bank of Booker, Texas”.

On January 5, 1973, plaintiffs mailed its check for $1000. to the Booker Bank for deposit to defendants’ account in payment of its obligation under the salt water disposal well agreement, and by letter advised defendants of same. The bank received the check on January 8, 1973. Defendants had the bank return the check to plaintiff, and by letter defendants’ attorney advised plaintiff the agreement was void due to plaintiff’s failure to pay “rentals on time as called for in the agreement”, and requested plaintiff remove its equipment from the location.

Thereafter defendants blocked the entrance to the salt water disposal well facility so that plaintiff’s trucks bringing salt water for disposal could not get to the facility. On April 5, 1973, plaintiffs filed cause 4303 seeking injunction against defendants interfering with plaintiff’s use of the salt water disposal well; determination that the January 4, 1963, agreement was in full force and effect; and tendered $1000. to the Clerk for defendants, in payment of its obligations under the agreement.

In September 1973, plaintiff came on their pipeline easement across defendants’ land to make some repairs. Plaintiff’s employees dug up a section of pipe, and when they returned the next day to continue work they were confronted with, a sign painted on a barrel top reading “Treaspas-ser will be Shot”. Plaintiff’s employee called his superior on his radio reporting the sign. The superior immediately went to defendant and asked if the sign was for plaintiff. Defendant said that it was; permitted plaintiff to complete repairs on the section of pipe that had been uncovered; but advised plaintiff not to continue work any further. Plaintiff completed the repairs defendant said it could complete and left defendants’ property. Plaintiff thereafter on September 17, filed cause 4385, seeking injunction against defendants interfering with its repairing its pipeline across defendants’ property, and from interfering with its ingress and egress to such pipeline easement.

The trial court tried the two causes together; and to a jury, which found:

IA) Defendant interfered with repair work on plaintiff’s pipeline.
IB) Such interference caused monetary damage to plaintiff.
IC) Such damage amounts to $595.27.
2A) Plaintiff was not negligent in the manner in which it repaired its pipeline on defendants’ land.
3A) Defendants interfered with plaintiff’s use of the salt water well.
4A) Plaintiff was negligent in its use of the salt water well.
4B) Such negligence caused damage to defendants’ land.
4C) Such damage amounts to $225.

The trial court rendered judgment in cause 4303 holding the January 4, 1963, agreement in present force and effect; permanently enjoined defendants from interfering with plaintiff’s use of the salt water disposal well; and awarded defendants $225. against plaintiffs.

The trial court rendered judgment in cause 4385 enjoining defendants from interfering with plaintiffs use of the pipeline right-of-way easement; ingress and egress thereto; and awarded plaintiffs $595.27 against defendants.

Defendants appeal from both judgments seeking reversal on 3 points:

1) There is no evidence or insufficient evidence to support either injunction.
2) Plaintiff failed to pay the rental under the salt water well agreement on time as provided in said agreement.
3) Plaintiff failed to pay said rental when they did tender same in legal tender of money as required by the agreement.

Defendants assert under point one that the judgment enjoining defendants from interfering with plaintiffs use of the pipeline right-of-way easement and ingress and egress thereto is without support in the evidence or is supported by insufficient evidence.

The easement defendants granted plaintiff to run its pipeline across defendants’ land is not attacked. Such easement provides plaintiff shall have the right of ingress and egress to such right-of-way. Defendants placed a sign, “Trespasser will be Shot” where plaintiff’s employees could see it, and then advised plaintiff’s employees that such sign was for them. Plaintiff’s employees left defendants’ property, and plaintiff filed cause 4385 seeking injunction preventing defendants from interfering with its use of the right-of-way easement. The judgment is supported by ample evidence.

Defendants assert under their 3 points that the injunction against their interference with plaintiffs use of the salt water disposal well is without support in the evidence, or without sufficient support in the evidence; that the January 4, 1963 agreement was void because of plaintiffs failure to timely pay rentals; and further void because plaintiff did not tender rental payment in “money”.

Pertinent portions of the agreement are:

“Each undersigned, hereinafter called ‘owner’, for valuable consideration, hereby agrees with Shamrock * * * as follows:
“1. Owner grants exclusively unto Shamrock the right to reenter the abandoned well known as Humble Gheen No. 1 well (located ⅜ * * ); [and] complete said well as a disposal well * * * ; * 4 * to discharge and inject water solutions * * * including salt water * * * produced from other wells * ⅝ * ; and the right to equip, alter, use, operate and maintain said disposal well * * * together with the right of ingress and egress for such purposes
⅜ * ⅜
“3. Said [property] is now subject to the Oil, Gas and Mineral lease dated August 2, 1962 * * * and this agreement is subject and inferior to said lease
“4. This agreement and said grant shall remain in effect for * * * 5 years from the date hereof and thereafter until said disposal well is plugged and abandoned by Shamrock, but not to exceed 30 years from the date hereof. If this agreement is in effect 10 years from the date hereof, Shamrock shall pay Roy H. Gheen, Jr., and Peggy Luthi Gheen the sum of $1000.; and if this agreement is in effect 20 years from the date hereof, Shamrock shall pay Roy H. Gheen, Jr., and Peggy Luthi Gheen the sum of $1000., and such payments may be made by depositing same to their credit in the First State Bank of Booker, Texas * *.
Dated this 4th day of January 1963.
/S/ Roy H. Gheen, Jr.
/S/ Peggy Luthi Gheen”
(Here follows joint acknowledgment before a Notary Public of Ochiltree County).

On January 5, 1973, plaintiff mailed the Booker Bank its check for $1000. for deposit to the credit of defendants, and also on January 5, 1973, wrote a letter to defendants telling them they were sending the bank the $1000. in accordance with the terms of the agreement of January 4, 1963. Defendants instructed the bank to return the money to plaintiff, and their lawyer wrote plaintiff that the agreement was null and void “due to your failure to forward Mr. Gheen’s rentals on time as called for in the agreement”; plaintiff sent the $1000. once more to the bank; and it was again returned to it. Thereafter plaintiff filed cause 4303, asserting the January 4, 1963, agreement in force and seeking to enjoin defendants from interfering with its use of the salt water disposal well. Plaintiff tendered $1000. into court for defendants.

The grant of the easement was for one term, the sole limitation of which was: “until said disposal well is plugged and abandoned by Shamrock, but not to exceed 30 years from date hereof”. There is no language in the instrument otherwise limiting the terms of the grant, and no provision for a forfeiture. The instrument is not only an “agreement”, but it “grants” an easement constituting a dominant estate in land.

The law does not favor forfeitures and unless compelled to do so by language that will admit to no other construction forfeiture will not be decreed. Decker v. Kirlicks, 110 Tex. 90, 216 S.W. 385; Sirtex Oil Industries, Inc. v. Erigan, Tex., 403 S.W.2d 784; Golden Spread Oil v. American Petrofina Co. of Tex. (Tex.Civ.App., Amarillo) NRE, 431 S.W.2d 50; Skelly Oil Co. v. Kidd (Tex.Civ.App., Eastland) NRE, 417 S.W.2d 186.

Plaintiff’s rights under the January 4, 1963, agreement were not forfeited by the January 5, 1973, tender of the $1000.

Defendants further assert the agreement void because plaintiff did not tender the rental payment in “money”. Tender of payment by check is not a valid tender when objection is made to this medium of payment. Muldrow v. Texas Frozen Foods, Inc., 157 Tex. 39, 299 S.W.2d 275. But when a tender is refused for other reasons, one may not later complain of the medium of tender. Gulf Pipe Line Co. v. Nearer, 135 Tex. 50, 138 S.W.2d 1065; Cornelius v. Cook (Tex.Civ.App., Eastland) NWH, 213 S.W.2d 767. In the case at bar defendant refused tender because it assert-edly came too late, and not because it was made by check and not in “money”.

We hold there was no forfeiture of the January 4, 1963, agreement, that it was valid, and in force and effect.

While such agreement was thus in full force and effect, defendants blocked plaintiff’s ingress and egress to the salt water disposal well, and advised plaintiff the agreement to use same was no longer in effect. The injunction is supported by ample evidence.

Defendants’ points are overruled.

The two judgments appealed from are affirmed.

Affirmed.