author: ROBERTSON, Justice.

text:
    Margaret Gertrude CHERRY, Independent Executrix of the Estate of H. S. Cherry, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 19109.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 4, 1977.
    Rehearing Denied March 3, 1977.

      Eddie Vassallo, McKool, Shoemaker & Vassallo, Dallas, for appellant.
    John L. Hill, Atty. Gen., Austin, David R. Thomas, Asst. Atty. Gen., Dallas, for appel-lee.
   ROBERTSON, Justice.

Margaret Gertrude Cherry appeals on behalf of the Estate of H. S. Cherry from a condemnation proceeding, contending that the trial court erred in admitting testimony before the jury concerning the landowner’s right to use the surface of the condemned land for passage because the State’s petition does not give the landowner this right. Additionally, it is contended that the jury verdict absent this testimony is against the great weight and preponderance of the evidence. We hold that the appellant has not preserved the error, if any, for appeal. Accordingly, we affirm the judgment.

This is the second appeal of this cause. The facts are summarized in detail in our previous opinion, cited State v. H. S. Cherry, 517 S.W .2d 337 (Tex.Civ.App. — Dallas 1974, writ ref’d n. r. e.), and we will summarize only those facts pertinent to this appeal. The State, through its petition for condemnation, sought to condemn a portion of land for use as a controlled access elevated highway, resulting in a severance of the landowner’s remaining land into two parcels. This severance effectively denied access to one parcel with the exception that the State provided the landowner would at all times have a legal right of passage across the surface of the condemned land and under the elevated highway, subject only to Texas Highway Department regulations.

The main thrust of the landowner’s argument is that testimony presented by the State caused the jury to believe there was an unequivocal right of passage with no conditions, and, consequently, they found a lower amount of damages than they would have found if they were aware of the condition of approval by the State. The landowner also contends that the reserved right of passage could not properly be considered by the jury because it could only be exercised at the discretion of the highway department. The disputed testimony was given by Fred Simmons, a District Right-of Way Engineer of the State. The landowner’s attorney did not object to the testimony given by Simmons on direct examination. On cross-examination the landowner’s attorney elicited further testimony concerning the extent of the reserved right of passage and the feasibility of running a railroad spur track under the highway. After Simmons answered the questions, the same attorney made a motion to strike Simmons’ answers to the questions which he had asked.

We do not reach the substantive questions on this appeal because they have not been preserved. If error exists because any of the questions or answers on direct examination contain objectionable material, it has been waived since a timely objection was not made by appellant. Maverick v. Maury, 79 Tex. 435, 15 S.W. 686, 687 (1891) and Swinney v. Winters, 532 S.W.2d 396, 401-02 (Tex.Civ.App. — San Antonio 1975, writ ref’d n. r. e.). Also, appellant cannot complain of responsive answers to questions which he asked the witness on cross-examination. Pullman Co. v. Vanderhoeven, 48 Tex.Civ.App. 414, 107 S.W. 147, 150 (1908, writ ref’d). A party is not permitted to ask questions, and then upon receiving responsive answers unfavorable to his cause, have the answers stricken from the record.

Accordingly, the trial court’s judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    J. E. STITT and Henry S. Miller Co., Appellants, v. ROYAL PARK FASHIONS, INC. and Sears, Roebuck and Company, Appellees.
    No. 19100.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 4, 1977.
    Rehearing Denied March 3, 1977.

      David A. Coggin, Gerry N. Wren, Brice & Barron, Dallas, for appellants.
    Michael W. Stacker, G. Frank Brown, Dallas, for appellees.
   ROBERTSON, Justice.

Appellants, J. E. Stitt and Henry S. Miller Company, appeal from an order granting appellees’, Royal Park Fashions, Inc., and Sears, Roebuck & Company, motion for summary judgment and denying appellants’ motion for summary judgment. Appellants seek real estate commissions as provided in a sublease agreement entered into by appellants, appellees, and Trinity Company, the owner of the leased premises. They appeal on the ground that the trial court erred as a matter of law in denying their motion for summary judgment because the phrase “as collected from tenant” in the sublease merely shows time of payment and is not a condition precedent to payment. Also, they argue alternatively that the language in the lease is ambiguous, and consequently a question of fact precludes the trial court’s granting a motion for summary judgment for either party. We agree with appellants’ contention that the sublease provides a time of payment rather than a condition precedent, and accordingly we reverse the judgment and remand the cause with instructions.

In 1963, Sears leased the subject premises from Trinity Company for a term of twenty-five years. Ten years later, on behalf of Royal Park, Stitt negotiated a sublease of the premises from Sears to Royal Park for a term of eight years. A printed form of lease contract with certain changes was used as the final contract between the parties. The sublease was signed on April 18, 1973, by Sears as sublessor, Royal Park as sublessee, Stitt as principal broker, and Henry S. Miller Company as cooperating broker. The relevant portions of the sublease are as follows:

1. Tenant (Royal Park) agrees to pay to J. E. Stitt and Company, 1214 Stem-mons Tower South, Dallas, Texas 75207 for the account of the landlord rent for said premises at the rate of Eight thousand one hundred seventy-four and twenty-five one hundredths ($8,174.25) dollars per month in advance.
26. REALTOR’S COMMISSION: Landlord (Sears) agrees to pay to undersigned, principal realtor, a commission for negotiating this lease agreement of six percent (6%) of the total monthly rental as collected from tenant. (Emphasis added)

In April of 1974, Royal Park negotiated with Trinity, the owner, to purchase the premises. On May 13,1974, Royal Park and Sears entered into a “surrender of leasehold” agreement, terminating Royal Park’s obligations and liabilities under the sublease. Also, Royal Park executed a “hold harmless indemnity agreement” by which it assumed any liabilities of Sears to third parties with respect to the sublease. In the same month, Royal Park purchased the premises from Trinity and, consequently, discontinued payment of the regular monthly rentals under the sublease to Stitt.

Stitt and Miller brought this suit against Sears for the commission on the unpaid rent, as provided in the sublease, and against Royal Park on its indemnity agreement. Royal Park and Sears take the position that the phrase “as collected from tenant” is a condition precedent to any liability for commissions because it identifies the source of payment to be the monthly rentals, and that since Royal Park is no longer obligated to make future monthly rental payments, Stitt is not entitled to receive the balance of his commissions for negotiating the sublease. Stitt argues that this language is not a condition, but merely a statement showing time of payment.

In order to determine whether a condition precedent exists, we must ascertain the intention of the parties as expressed in the entire instrument. Republic National Bank v. National Bankers Life Ins. Co., 427 S.W.2d 76, 79 (Tex.Civ.App.-Dallas 1968, writ ref’d n. r. e.). If there is no ambiguity, the construction of the written instrument is a question of law for the court. Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193, 196 (Tex. 1962). We must interpret an unambiguous contract by determining the meaning that would be attached to it by a reasonably intelligent person when considering the words of the entire instrument along with the circumstances surrounding its negotiation. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518-19 (Tex. 1968). If a contract remains reasonably susceptible to more than one meaning after the court applies established rules of interpretation, the contract is ambiguous. However, if only one reasonable meaning clearly emerges, it is unambiguous. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951). Accordingly, we must interpret the language to determine whether the clause pertaining to commissions is a condition precedent or time of payment provision or whether it is ambiguous in that respect.

That clause reads: “a commission for negotiating this lease agreement of six percent (6%) of the total monthly rental as collected from tenant.” The phrase shows that Stitt was to be paid for the negotiation of the lease, and that payment was to be prorated over a time equal to the expected life of the lease rather than in one sum. The only reasonable meaning of this language is that Stitt agreed to defer his payment over a period of time, but expected full payment under any circumstances.

Royal Park cites Langman v. Vitullo, 70 Pa. D & C 604 (1950), in which a lower court in Pennsylvania held that a broker was not entitled to a commission based on the rental for the whole term of the lease providing a five percent commission “for his services in negotiating the lease and the collection of the rent . . .,” when the lessee vacated the premises after eight months of the five-year term lease. However, those facts are distinguishable from the present case in that the Pennsylvania court relied upon the wording of the contract specifying that commissions were payment for negotiating the lease and collecting the rent. In our case the contract reads “a commission for negotiating this lease agreement . . .” This phrase clearly shows that the commissions were in payment for the broker’s services in negotiating the lease only. Although the evidence shows that Royal Park paid the rent to Sears through Stitt before the sublease was canceled, the sublease does not obligate Stitt to actively collect the rent.

This case is analogous to one in which a broker’s commission for negotiating a sale of land is to be paid out of deferred payments evidenced by lien notes taken by the seller, and subsequently the seller accepts a reconveyance of the land in full satisfaction of the notes, the notes are regarded as fully paid. In such a case the broker cannot be deprived of his commission by an agreement of cancellation or release made by the seller and purchaser unless the agreement is entered into at the broker’s request or with his consent. Adams v. Johnson, 298 S.W. 265, 267 (Tex.Com.App.1927, jdgmt. adopted). Unless otherwise agreed, a broker need only produce a purchaser able and willing to buy on the owner’s terms, and if completion of the sale is prevented by a mutual rescission of the owner and purchaser, still the broker is entitled to his commission. Don Drum Real Estate Co. v. Hudson, 465 S.W.2d 409, 411 (Tex.Civ.App.-Dallas 1971, no writ).

No reason exists for a distinction between the sale and lease of land which a broker has negotiated. See Closner v. Gannaway, 32 S.W.2d 523, 524 (Tex.Civ.App.-San Antonio 1930, no writ). Thus, we hold that under these facts Stitt did perform his part of the agreement by negotiating a lease between Royal Park and Sears and is entitled to payment.

In support of its contention that the phrase “as collected from tenant” creates a condition precedent, Royal Park cites O'Boyle v. DuBose-Killeen Properties, Inc., 430 S.W.2d 273 (Tex.Civ.App.-Dallas 1968, writ ref’d n. r. e.). We regard O’Boyle as distinguishable. O’Boyle dealt with a sale of shopping center property in which the purchaser was concerned about continuation of leases by numerous tenants. The agreement provided that the leases to the various tenants were to be approved and accepted by the purchaser before the purchaser was bound to proceed with the closing of title. Accordingly, in that case we held that this approval was a significant factor in negotiation of the contract of sale, and because of the failure to approve the leases, the sale was never successfully negotiated. In this case, on the other hand, the lease agreement and surrounding circumstances do not demonstrate an intention not to complete the transaction unless a certain condition is met. In fact, the lease was successfully negotiated and lease payments were made for a full year before Sears and Royal Park alone decided to rescind and cancel the lease.

Even if the phrase “as collected from tenant” were interpreted as a source of payment creating a condition precedent, we do not agree that under these circumstances it constitutes a bar to recovery. Other courts have recognized circumstances analogous to these and have held that a broker is entitled to his commissions notwithstanding failure of the condition precedent if the lessor gets the benefit of the obligation to pay the rent or if the lessor himself is responsible for failure of the condition. For example, although a broker’s agreement required possession by the lessee prior to payment of commissions, a broker was entitled to commissions notwithstanding the fact that the lessee never acquired possession because the property was condemned. The court reasoned that since the lessor received a greater condemnation award because of the loss of future lease payments, he benefited from the broker’s services and should be required to pay the commissions. Polley v. Plainshun Corp., 8 A.D.2d 638, 186 N.Y.2d 295 (1959). Also, where a broker’s agreement conditioned payment on possession by the lessee and the broker successfully negotiated a lease, it was decided that the lessor’s acceptance of a surrender by the lessee prevented the condition precedent and should not deny the broker his commissions. Allan S. Feldman & Co. v. Freeman, 3 Misc.2d 651, 156 N.Y. S.2d 52 (1956). These cases are analogous to the situation herein, and we agree with the rationale of those opinions. This is not a case in which the lessee simply defaulted in the payment of rent. In this case Sears was responsible for failure of the condition because it agreed to the surrender of the sublease, and it obtained a benefit from the surrender in that the surrender was part of a transaction by which Sears was relieved of its obligation to pay the rent on the principal lease beyond the term of the sublease. Thus, we conclude that Sears should be required to pay the broker's commissions and that Royal Park is also liable under its indemnity agreement.

Accordingly, we hold that the trial court erred in rendering summary judgment for Royal Park and Sears and denying a summary judgment for Stitt and Miller. We reverse that judgment and remand the cause to the trial court with instructions to sustain the motion for summary judgment of J. E. Stitt and Henry S. Miller Company against Sears, Roebuck & Company and Royal Park Fashions Company, Inc., for the present value of the six-percent (6%) commission on the total amount which would have been paid by Royal Park Fashions if the lease had not been canceled, allowing interest on past-due installments and discounting future installments for present payment and to determine and allow a reasonable attorney’s fee, as provided in the lease.

Reversed and remanded with instructions.


text:
    S. S. KRESGE CO. et al., Appellants, v. The STATE of Texas, Appellee.
    No. 19106.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 4, 1977.
    Rehearing Denied March 3, 1977.
    Robert L. Hoffman, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellants.

      Henry Wade, Dist. Atty., John H. Hagler, Asst. Dist. Atty., Dallas, for appellee.
   ROBERTSON, Justice.

S. S. Kresge and its district manager, M. J. Talley, appeal from a permanent injunction enjoining them from selling certain commodities on the consecutive days of Saturday and Sunday as prohibited by Tex. Rev.Civ.Stat.Ann. art. 9001 (Vernon Supp. 1976). It is undisputed that on Saturday and Sunday (November 23 and November 24, 1974) the appellants sold items prohibited by the statute. However, they contend that: (1) the statute violates the due process clause of the U.S.Const. amend. XIV, § 2, and Tex.Const. art. 1, § 19; (2) the statute violates the equal protection clause of the U.S.Const. amend. XIV, § 2 and Tex.Const. art. 1, § 3; and (3) the trial court erred in instructing a verdict because there was some evidence of probative force that there was discriminatory enforcement of the statute against them in violation of the equal protection clause. We hold that Tex.Rev.Civ.Stat.Ann. art. 9001 (Vernon Supp.1976) does not violate either the federal or state constitution and that as a matter of law the appellants have not shown a discriminatory enforcement of the statute in violation of their constitutional rights.

Appellants contend the statute (article 9001) is in violation of the due process of law and equal protection guaranties of both the federal and state constitutions. We cannot agree. Recently, the Texas Supreme Court has reaffirmed the constitutionality of this statute while addressing the specific arguments raised herein. Gibson Products Co., Inc. v. State of Texas, 545 S.W.2d 128 (Tex.1976). Accordingly, we hold that there is no validity to this contention.

Appellants further argue that because there is some evidence showing a discriminatory enforcement of the statute in violation of the equal protection guaranties of the federal and state constitutions, the trial court erred in instructing a verdict and granting a permanent injunction enjoining them from selling the prohibited items on a consecutive Saturday and Sunday. The question before us is whether the appellants have presented some evidence showing a discriminatory enforcement of the statute or whether in view of the evidence presented the appellee is entitled to judgment as a matter of law.

The evidence shows that in the fall of 1974, immediately prior to the prosecution of appellants, appellants complained to the district attorney that competitors were open on Sunday in violation of the statute. Appellant Talley, in telephone conversation with Mr. Hagler, assistant district attorney responsible for enforcing the statute, reported violations by other stores specifically identifying them by name. In compliance with Hagler’s request, Talley wrote a letter to the district attorney’s office to that effect. When Talley received no response to his letter, his employer, Kresge, decided to open its suburban discount stores on the following Saturday and Sunday and informed the district attorney of this decision. Subsequently, the prosecution against appellants was initiated on the complaint of the manager of the Dallas Retail Merchants Association, which is composed almost exclusively of executives of downtown-oriented retailers. The informal complaint made by the manager of the association was accompanied by a signed affidavit from a private investigator swearing that he bought products from the appellants in violation of the statute.

Hagler testified that after initiation of this prosecution, the appellants secured numerous affidavits swearing to violations of the statute by other stores. However, the appellants specifically refused to allow the district attorney to use these affidavits in prosecution of those stores. Later, when Sanger-Harris Department Store filed with the district attorney an affidavit complaining of one of those stores’ (Gibson Discount Center) violation of the statute, the district attorney then initiated prosecution. Hagler further testified that the inadequate man power in the district attorney’s office prohibited investigation by the district attorney of reports of violations made by individuals, and that the district attorney was forced to rely on those individuals personally investigating the violation and filing an affidavit to that effect. He also testified that in cases where affidavits were provided, the district attorney would initiate prosecution. In fact, the district attorney sought injunctive relief against Levitz Furniture Company in 1970 or 1971, against Gibson Discount Center in June 1975, and against Bob Fenn Apparel for Men in the same year.

It has been held that a mere failure to prosecute offenders is no basis for a finding of denial of equal protection under the Constitution. Moss v. Hornig, 314 F.2d 89, 92 (2d Cir. 1963). A party must show an intentional or purposeful discrimination in enforcement of a statute when showing that an unequal administration of the statute violates the equal protection clause of the federal constitution. Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944). Because a discriminatory purpose is never presumed. Tarrance v. State of Florida, 188 U.S. 519, 520, 23 S.Ct. 402, 47 L.Ed. 572 (1903), a showing of clear intentional discrimination is required. Gundling v. City of Chicago, 177 U.S. 183, 186, 20 S.Ct. 633, 44 L.Ed. 725 (1900). In Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), the Court rejected a contention that selective enforcement, of a penal statute against certain habitual offenders was a denial of the equal protection guaranty under the Constitution and held that the conscious exercise of some selectivity in enforcement is not in itself a federal constitution violation. In Super X Drugs of Texas, Inc. v. State, 505 S.W.2d 333 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ), a similar standard of proof was adopted. The court stated that more than mere unequal application of a state statute must be shown to prove a violation of the equal protection guaranties of the federal constitution, and a showing of actual and purposeful discrimination against the individual himself or against a suspect classification in which he fell (such as wealth, religion, race, etc.) is required.

Appellants cite People v. Acme Markets Inc., 37 N.Y.2d 326, 372 N.Y.S.2d 590, 334 N.E.2d 555 (1975) and contend that it should be controlling in this jurisdiction. In that case, the evidence showed that prosecutions for violation of the State Sunday sales law was limited to cases in which complaints were filed by the officials of a local labor union. The majority of that court reasoned that enforcement of the law had been totally surrendered to private parties and interest groups with the ability to manipulate the law for purely private purposes. Consequently, the court held that the constitutional rights of the food supermarkets were violated because there was open discrimination and harassment of one group by another. Because the power and prestige of the district attorney was given to the union’s campaign, the court held that the union’s actions became those of the State and resulted in a violation of the equal protection guaranty of the federal constitution.

We are more persuaded by the dissenting opinion in that case which took the view that the motivation of a private party in filing a complaint is not necessarily imputed to the district attorney when he enforces the statute by prosecution. Although the private party may be motivated by selfish interest, this in itself is not a denial of equal protection under the Constitution. To establish a denial of equal protection, it must be shown that the State itself was enforcing the statute not only for the purpose of executing legislative intent, but also for the purpose of discrimination. We agree with this rationale and decline to follow the holding of the Acme Markets case.

Also, Tex.Rev.Civ.Stat.Ann. art. 9001, § 4 (Vernon Supp.1976), is distinguishable from the New York Penal Statute. This statute permits any person to obtain injunctive relief in addition to its penal provisions. Whereas, the New York Statute provides only that a violation is punishable as a misdemeanor. The Texas Statute does not give the district attorney the specific responsibility for enforcing the statute by securing injunctions. The Retail Merchants Association could have filed for in-junctive relief itself although it chose not to do so. The record does not reveal the motivation of the association in filing the complaint. Whatever its motivation might have been, we do not agree that it is automatically imputed to the State. The assistant district attorney testified that a shortage of man power required him to rely upon complaints from private parties as a source of prosecution. No evidence was presented showing that the district attorney had any other motivation to enforce the statute than that of attempting to carry out the intent of the legislature. He testified that he would prosecute all complaints filed including those of the appellant. Thus, the record does not reveal purposeful discrimination on the part of the State which is required to sustain an allegation of a denial of equal protection under our constitutions. Accordingly, we hold that the trial court was correct in instructing a verdict and granting a permanent injunction since the appellants failed to establish a defense of purposeful discrimination.

Accordingly, we affirm the judgment of the trial court.


author: HALL, Justice.

text:
    Cecil Marie HUDSON et al., Appellants, v. Milton GOODEN, Appellee.
    No. 5646.
    Court of Civil Appeals of Texas, Waco.
    Feb. 10, 1977.
    Rehearing Denied March 3, 1977.

      Frank B. McGregor, Hillsboro, for appellants.
    Donald Eastland, Hillsboro, for appellee.
   HALL, Justice.

Appellants are appellee’s children. In 1962, they and appellee became joint owners of a house and lot located in the City of Hillsboro. With appellants’ permission, ap-pellee occupied and used the property by himself from 1962 until he moved in March, 1976. During this time he paid all taxes, insurance premiums, and mortgage payments due on the property.

Appellants brought this suit in July, 1975, for partition of the property, or for its sale and division of the proceeds. Trial was held without a jury. The court ordered the property sold, appointed a receiver for this purpose, approved a sale made to one of the appellants in April, 1976, and divided the proceeds one-half to appellants and one-half to appellee in accordance with their interests in the property. Additionally, the court awarded appellee one-half of his expenses for taxes, insurance premiums, and mortgage payments, which he pleaded for, and deducted this amount from appellants’ share of the proceeds.

Appellants contend that because the court allowed appellee to recoup one-half of his expenses on the property, they should have been awarded a reasonable rental from him for his use of the property during the cotenancy. Appellants did not plead for this relief and there is no proof relating to it. It was therefore waived.

Appellants assert the proof shows as a matter of law that in 1962 they and appellee orally agreed that appellee would have exclusive use of the property without payment of rent in exchange for his payment of taxes, insurance premiums and maintenance expense on it. They also say the evidence conclusively establishes that all of the money used by appellee in payment of the expenses now claimed by him was supplied to him by them for that purpose. These facts are supported only by the testimony of appellants, who were interested witnesses. Additionally, they were categorically denied by appellee. Accordingly, they are not conclusively proven.

Finally, appellants say they were entitled to recover for damage to the property by appellee and waste permitted by him between the date of suit and the date he moved. Again, fact questions are raised in the evidence as to whether the damage and waste actually occurred. The court was the trier of the facts, and it resolved these questions against appellants’ contentions when it expressly found that the property suffered only reasonable wear and tear during appellee’s occupancy.

Appellants’ points and contentions are overruled. The judgment is affirmed.


author: MOORE, Justice.

text:
    Robert RUTHERFORD et al., Appellants, v. Charles H. CLARK, Appellee.
    No. 991.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 10, 1977.

      Lowell C. Holt, Gilmer, for appellants.
    F. R. Files, Jr., Loftis, Rowan, Files, Clayton, Bain & Clark, Tyler, for appellee.
   MOORE, Justice.

This is a suit for attorney’s fees. Plaintiff, Charles Clark, Esq., instituted this action in the nature of a sworn account against defendants, Robert Rutherford, Hugh Rutherford and Julius Rutherford, alleging that he had provided certain legal services to them at their request and, therefore, they became bound to pay him the reasonable value of such services. Plaintiff further alleged that although he had often requested payment, defendants had not paid the same or any part thereof, thereby damaging the plaintiff in the amount of $4,963.62. Defendants denied the account under oath. Trial was before the court, sitting without a jury. Several months after conclusion of the evidence, judgment was entered in favor of the plaintiff for the sum of $4,963.62, from which defendants perfected this appeal. The record is before us by way of a statement of facts, no findings of fact or conclusions of law having been requested or filed.

We affirm.

The record reveals that defendants were part owners of a financially troubled corporation known as Epoxy Chemical Corporation (“Epoxy”). Michael Rutherford, a brother of the defendants, was president of Epoxy. Clark testified that a portion of his work for the defendants consisted of examining the title to some land on which the defendants resided. Such title examination was necessary to use the land as security for a personal loan which the defendants sought to obtain and use to assist Epoxy. Clark testified that he was employed to do the title work by L. E. Lacy, whom the defendants had designated to aid them in obtaining the loan, and, therefore, the work was done pursuant to a letter contract with the defendants through their agent, Lacy.

The record shows that the other portion of the legal work performed by Clark for the defendants consisted of an appearance on their behalf before the Texas Railroad Commission pursuant to a matter unrelated to Epoxy or the loan. Clark further testified that all of the work performed by him was done at the special request of the defendants individually or through their agents. It is undisputed that neither Michael Rutherford nor Epoxy was a party to any contract with Clark.

Defendants do not challenge the judgment on the ground that there was no evidence or insufficient evidence to show that the legal work was not performed or that the fees charged therefor were not reasonable. Under their first point of error defendants seek a reversal on the ground that Epoxy and its president Michael Rutherford were necessary parties to the suit and that the failure to join them renders the judgment fundamentally defective and void. We do not agree.

Rule 39, Texas Rules of Civil Procedure, reads in part:

“(a) Persons to be Joined if Feasible. A person . . . shall be joined as a party ... if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

In the case of Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200, 204 (Tex. 1974), the Supreme Court interpreted Rule 39 as follows:

“The . . . rule includes practical considerations within the rule itself, including the extent to which an absent party may be prejudiced, the extent to which protective provisions may be made in the judgment, and whether in equity and good conscience the action should proceed or be dismissed. The factors mentioned in the rule which a judge may consider are not exclusive. .
“. . . Subdivision (a) provides that certain persons ‘shall be joined,’ but there is no arbitrary standard or precise formula for determining whether a particular person falls within its provisions. It is clear, moreover, that the persons described in the subdivision are to be joined only if subject to service of process. When such a person cannot be made a party, the court is required to determine ‘whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed.’ ”

There is nothing in the record to show that either Epoxy or Michael Rutherford had a direct interest in the object and subject matter of this suit or that their interests would be necessarily affected by any judgment rendered in this suit. Furthermore, there is nothing in the record to indicate that a judgment or decree cannot be had without either affecting the interests of Epoxy or Michael Rutherford or without leaving the controversy between the parties to the suit in such a condition that the suit’s final adjudication would be wholly inconsistent with equity and good conscience. Michael Rutherford and Epoxy were no doubt concerned about the contract with Clark because his legal work in helping to secure the loan would benefit Epoxy and indirectly benefit Michael Rutherford as a stockholder, but they were not parties to the contract. Clark had no cause of action against them and their presence in the suit was not essential to the determination of the respective rights of the defendants and plaintiff. It follows that their non-joinder does not present fundamental error. The defendants’ first point is overruled.

Under their second point of error the defendants contend that the trial court erred in entering judgment against them because prior to judgment Clark executed and filed for record a release of his attachment lien reciting that the $4,963.62 due and owing Clark had been paid in full. We find the point to be without merit.

The record reveals that shortly after filing suit, Clark caused a writ of attachment to issue against certain lands in which defendants held an interest. On July 30, 1974, Clark executed a release of the lien in which it was recited that the release was executed “for and in consideration of the full and final payment of Four Thousand Nine Hundred Sixty-three and 62/100 ($4,963.62) Dollars, the receipt of which is hereby acknowledged . . . .” Trial was held on December 8, 1974. Eight months later, but before judgment was entered, the trial court, upon Clark’s request, entered an order dissolving the writ of attachment. Attached to the order was a copy of the release which contained the recitation of payment. Thus, the instrument in question was made a part of the transcript and is before us only by way of the transcript.

Nowhere in their pleading did defendants plead release or payment as an affirmative defense as required by Rule 94, Texas Rules of Civil Procedure. They, therefore, assert the defense of release and payment for the first time on this appeal. Furthermore, there is nothing in the statement of facts to suggest that the debt was paid or that the instrument releasing the attachment lien was offered as an exhibit in the trial of the cause. In addition, the defendants say in their brief that they did not know that such an instrument even existed until long after the judgment had been entered. Nowhere in their brief do defendants contend that the debt has in fact been paid yet, on the basis of such instrument they would have this court reverse and render judgment in their favor.

It is a well settled rule of appellate procedure that a case will not be reviewed by an appellate court on a different theory from that on which it was tried in the court below. Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238 (1942); American Mut. Liab. Ins. Co. v. Parker, 144 Tex. 453, 191 S.W.2d 844 (1945); Johnson v. Faulk, 470 S.W.2d 144 (Tex.Civ.App.-Tyler 1971, no writ); Reisenberg v. Hankins, 258 S.W. 904 (Tex.Civ.App.-Amarillo 1924, writ dism’d). Moreover, it is well settled that the affirmative defense of payment may not be raised for the first time on appeal. Copeland Well Service, Inc. v. Shell Oil Co., 528 S.W.2d 317, 321 (Tex.Civ.App.-Tyler 1975, no writ); City of Coleman v. Kenley, 168 S.W.2d 926, 934 (Tex.Civ.App.-Eastland 1943, writ ref’d); See, T.I.M.E., Inc. v. Maryland Cas. Co., 157 Tex. 121, 300 S.W.2d 68 (1957).

It is evident that payment was not asserted by defendants as a defense and the cause was not tried on that theory and, therefore, it may not be raised for the first time on this appeal. The second point of error is overruled.

The judgment of the trial court is affirmed.


text:
    PUROLATOR SECURITY, INC., et al., Appellants, v. The CITIZENS NATIONAL BANK OF WACO, Appellee.
    No. 5574.
    Court of Civil Appeals of Texas, Waco.
    Feb. 10, 1977.
    Rehearing Denied March 10, 1977.

      Louis S. Muldrow, Ñaman, Howell, Smith & Chase, for Purolator Sec., Inc.
    Sherwin A. Winniford, Haley, Fulbright, Winniford, Bice & Davis, Waco, for Commercial Ins. Co. of Newark, N. J.
    David B. Kultgen, Beard & Kultgen, Waco, for appellee.
   HALL, Justice.

At all pertinent times, the book store and the cashier’s office at Baylor University, in Waco, transacted their banking business with the appellee, the Citizens National Bank Of Waco, in this fashion: Mrs. Mar-cell Thomas, an employee in the cashier’s office, and Mrs. Marie Harden or Mrs. Richard Moyle, employees in the book store, would telephone the armored car teller at the Citizens Bank and place an order for cash to be used by their respective department in its daily business. These orders are called “change orders.” Bank would fill the order, put it in a sealed bag, and place a tag on the bag designating the place of delivery. The bag would then be handed to an employee of the appellant, Purolator Security, Inc., an armored motor vehicle company, for delivery to Baylor. Purolator was employed by Baylor for this service. Many other of Bank’s depositors in Waco, who also employ Purolator for this purpose, were serviced by Bank in this fashion. Bank’s armored car teller was furnished a list of the personnel of the various accounts with whom he could deal in this manner. He was also familiar with the voices of those who called for change orders. He was under instruction to immediately call the depositor and verify the order if an unfamiliar name or voice placed an order, and he did so.

Ordinarily, Purolator made a morning run and an afternoon run to Baylor, Monday through Friday. Mrs. Thomas would receipt for the change orders delivered to the cashier’s office, and Mrs. Harden or Mrs. Moyle would receipt for those delivered to the book store. It was not uncommon on these runs for Purolator to pickup a deposit from either place for delivery to Bank. We might add that money was never ordered by, nor delivered to, any other department at Baylor. Specifically, money was never ordered by the Student Aid Office, there.

A swindler, using the name “George Clark,” who was not at all associated with Baylor, learned of this system of business between Bank, the cashier’s office, the book store, and Purolator. On Friday, December 14,1973, assuming an air of familiarity with all involved, he called the armored car teller at Bank, identified himself as “George Clark with Student Aid” at Baylor, and placed a change order for bills of varying denominations totaling $13,620.00. He also called Purolator, and apprised it of an order at Bank for Baylor. Bank filled the order, put it in a small, sealed bag, and placed a tag on the bag with notations on it reading, “George Clark,” “Mrs. Thomas,” “Cashier,” “$13,620.00,” in that sequence. Although Bank’s armored car teller was not familiar with the name “George Clark” or Clark’s voice, and had never before received an order from Student Aid at Baylor, he did not attempt to verify Clark’s order or authority.

Purolator’s driver, Fitch, picked up Clark’s order from Bank’s armored car teller at about 1:00 P.M. on the day in question. When he did so, he signed a receipt reading, “Given to P.S.I. Armored Motor Service, Inc., from CNB for Baylor. Received by and correct as to number of packages /s/ Fitch.” Fitch also either picked up or already had in his possession two bags of change orders for delivery to the book store. Additionally, he had orders for customers other than Baylor.

Fitch arrived at the cashier’s office at Baylor at about 3:00 P.M. Meanwhile, Clark had contacted Mrs. Moyle at the book store and Mrs. Thomas at the cashier’s office, identified himself as “George Clark with Student Aid,” and let them know that he was expecting a change order from Bank. He asked Mrs. Thomas if the order could be left at the cashier’s office by Puro-lator for him, and she told him it could. Thereafter, he placed several calls to Mrs. Thomas and also to Mrs. Moyle inquiring whether his order had arrived.

When Fitch arrived at the cashier’s office with the order, Mrs. Thomas knew or at least assumed “it was for George Clark,” because she had no order coming. She signed the receipt for it. Almost simultaneously, she received a telephone call from Clark inquiring about the money. She told him Fitch was there, and asked if he would like to speak with Fitch. He said he would, and she handed the telephone to Fitch. Clark then asked Fitch to deliver the money to him at the book store, and Fitch agreed to do so. Fitch scratched through Mrs. Thomas’s signature on the receipt, picked up the change order, and left the cashier’s office. The book store was only a short distance away in another building.

Immediately after talking with Fitch, Clark telephoned Mrs. Moyle and told her the change order he sought was going to be delivered to the book store. At this particular time, the students at Baylor were ending the Fall Term, turning in books, cashing checks, and preparing for the Christmas vacation, and the book store was “very, very busy.” A few minutes after Clark’s call, Fitch arrived at the book store with the two bags of money ordered by the book store, plus Clark’s order. Clark was not there. Fitch waited several minutes, but Clark did not show. Mrs. Harden paged him on the book store’s public address system. Clark still did not show. Fitch became concerned about time to make the remainder of his afternoon run. As an accommodation to Purolator and Bank, Mrs. Harden offered to receipt for the money for ultimate delivery by her to Clark. This was done, and Fitch left. Soon thereafter, Clark appeared at the book store, signed a receipt, received the money, and left. Neither he nor the money has since been located by the parties.

At the time of this occurrence, Bank was the insured under a policy issued by the appellant, Commercial Insurance Company of Newark, New Jersey. In its pertinent parts, the policy contains these provisions:

DECLARATIONS
4. Offices Covered. — All the insured’s offices in existence at the time this bond becomes effective are covered under this bond except the offices located as follows: NONE.
INSURING AGREEMENTS ON PREMISES
(B) Loss of Property (occurring with or without negligence or violence) through . theft, false pretenses . while the Property is (or is supposed to be) lodged or deposited within any offices or premises located anywhere, except in an office listed in Item 4 of the Declarations.
IN TRANSIT
(C) Loss of Property (occurring with or without negligence or violence) through theft . . . misplacement . being lost or otherwise made away with . while the property is in transit anywhere in the custody of any person or persons acting as messenger, except while in the mail or with carrier for hire, other than an armored motor vehicle company, for the purpose of transportation, such transit to begin immediately upon receipt of such Property by the transporting person or persons, and to end immediately upon delivery thereof at destination.

Bank prosecuted its case against Purolator (and now seeks to affirm the judgment in its favor) on theories that the bailment between them was for their mutual benefit; that Purolator violated this bailment, mis-delivered the change order, and thereby converted Bank’s money when Fitch failed to leave the order at the cashier’s office and undertook to deliver it to Clark at the book store; and that whether either party acted negligently is not an issue. Bank also joined Commercial as a defendant, pleading for recovery of its loss under the insurance policy.

Trial was to a jury. Answering the seven special issues submitted to it, the jury (1) found that Bank directed that the change order in question “be delivered to the cashier’s office at Baylor University”; (2) failed to find that Fitch “delivered” the change order when it was presented to Mrs. Thomas at the cashier’s office; (3), (4), (5) found that Bank negligently failed “to indicate clearly to the armored car service where and to whom the Bank intended the money to be delivered,” and that this negligence was a proximate cause of the loss in question; and (6), (7) found that Bank’s failure “to confirm or verify the authenticity of George Clark, and his authority to order money in behalf of Baylor University,” was negligence which proximately caused the loss.

Based upon these findings and upon Commercial’s insurance policy, judgment was rendered in favor of Bank against Purolator and Commercial, jointly and severally, for $13,620.00.

The findings of negligence and proximate cause against Bank are supported by proof and are not contested.

Among other grounds for reversal, Puro-lator asserts that it was an involuntary bailee under the circumstances, liable only for gross neglect or bad faith action; that its requested issues inquiring whether it was also directed to deliver the money to Clark should have gone to the jury; and that, in any event, the jury’s findings that Bank negligently caused the loss, without findings that Purolator was negligent, requires a judgment in Purolator’s favor. Because we agree with this last contention, we need not discuss the others.

The record shows without dispute, and all agree, that the parties involved in this transaction were equally and completely flimflammed by Clark. Although, under the issues submitted, the jury found a mis-delivery by Purolator, it also found, in effect, that the misdelivery was proximately caused by Bank’s negligence.

Ordinarily, a bailee is not liable for loss of property attributable to the fault or negligence of the bailor. Vollmer v. Stoneleigh-Maple Terrace, 226 S.W.2d 926, 928 (Tex.Civ.App. — Dallas, 1950, writ ref.); 11 Tex.Jur. 151, Carriers, § 384. Bank says this rule does not apply in cases of misdeliv-ery by the bailee, stating that the misdeliv-ery is a conversion and that contributory negligence is not a defense in conversion cases. We disagree. Although we find no cases in point involving a private carrier like Purolator, the rule in question has been uniformly applied against bailor-shippers in actions by them for misdelivery by common carrier bailees who would otherwise have been liable for the misdelivery as converters and insurers. 13 C.J.S. Carriers § 174, p. 351; 13 Am.Jur.2d 912, Carriers, § 438; Dobie, Bailments And Carriers (1914), p. 424, § 141. Accordingly, it should obtain here in favor of Purolator. We hold it does.

Commercial seeks reversal of the judgment against it on the theory that the evidence establishes as a matter of law that Fitch effected delivery of the change order to Mrs. Thomas at the cashier’s office; and that the money was not therefore “in transit” at the time of loss within the meaning of paragraph (C) of the insuring agreements of the insurance policy, supra. Alternatively, Commercial asserts the jury’s failure to find a delivery to Mrs. Thomas, in answer to special issue no. 2, is against the great weight and preponderance of the evidence. For the reasons that follow, we overrule these contentions as being immaterial to Commercial’s liability.

Under paragraph (B) of the policy’s insuring agreement, supra, Bank’s loss of money by theft was insured by Commercial if it occurred while the money was “lodged or deposited within any offices or premises located anywhere.” The book store office and premises at Baylor where Clark finally obtained possession of Bank’s money meet the unqualified loss location of this provision. Any doubt as to the intended meaning of this provision must, of course, be construed against Commercial. Continental Cas. Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762, 763 (1953).

The judgment against Purolator is reversed, and judgment is rendered that Bank take nothing against Purolator. The judgment against Commercial is affirmed.

The costs of this appeal are taxed against Commercial.


author: CADENA, Justice.

text:
    R. C. S. a juvenile, Appellant, v. The STATE of Texas, Appellee.
    No. 15769.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 16, 1977.

      Michael W. Bahan, William W. Morris, San Antonio, for appellant.
    Ted Butler, Crim. Dist. Atty., Alan E. Battaglia, Asst. Crim. Dist. Atty., San Antonio, for appellee.
   CADENA, Justice.

Appellant seeks reversal of a judgment of the Juvenile Court of Bexar County declaring him to be a delinquent child and committing him to the custody of the Texas Youth Council. The adjudication of delinquency is based on jury findings that appellant committed the felony offenses of arson and burglary with intent to commit theft.

•Appellant’s first two points seek reversal of the judgment because there was no evidence, aliunde his extrajudicial admissions and confession, tending to prove the corpus delicti of the two offenses in question.

The requirement that the State prove the corpus delicti merely means that there must be proof that a crime has been committed by somebody. Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974). There are judicial statements indicating that proof that defendant committed the crime is essential to proof of the corpus delicti. Bussey v. State, 474 S.W.2d 708, 710 (Tex.Cr.App.1972). Proof of defendant’s connection with the criminal conduct is, of course, necessary for conviction, but proof of the defendant’s involvement is not essential to proof that a crime has been committed.

Appellant relies on the almost universally recognized rule that a defendant’s extrajudicial admissions, standing alone, do not constitute sufficient proof of the corpus delicti. This rule merely means that there must be evidence, aliunde the admissions or confession, that a crime was, in fact, committed by someone. For the purpose of this opinion, we assume that such independent evidence need not be sufficient to prove the corpus delicti beyond a reasonable doubt, or even by a preponderance of the evidence, and that all that is required is that there be some evidence, other than the admission or confession, that a crime was committed by someone. Self v. State, supra, 513 S.W.2d at 837. See, generally, on the question of quantum of proof, Note 103 U. of Pa.L.Rev. 738 (1955). This rule, sometimes stated in terms of a requirement that the confession of the defendant be corroborated, does not apply to the issue of defendant’s involvement in the crime. The identity of the defendant as the perpetrator of the crime can be established by his confession alone.

In order to establish the corpus de-licti of the crime of arson it must be shown (1) that a fire occurred and (2) that the fire was designedly set by someone. Bussey v. State, supra. In the case before us, there is ample evidence, independent of appellant’s admissions, that there was a fire. But, except for appellant’s admissions, there is no evidence that the fire was designedly set or, as sometimes expressed, that the fire was of incendiary origin. No witness testified as to the cause of the fire, nor did any witness offer even a tentative opinion as to the cause.

The State relies heavily on Self v. State, supra, a murder case in which the independent evidence established that two young girls disappeared and their corpses were found some months later in a body of water. The Court of Criminal Appeals said that the corpus delicti of the crime of murder consists of two elements. The first element “is that the body or the remains of the body of the deceased be found and identified.” See § 12.02, Tex.Penal Code Ann. (1974). The second element “is that the death of the deceased was caused by the criminal act of another.” 513 S.W.2d at 834-35. There was no problem concerning the first element, since the bodies of the two girls were found and identified independently of the defendant’s confession, just as, in the case before us, there is abundant evidence of the first element of the crime of arson, i. e., the occurrence of a fire.

The problem in Self related to evidence of the second element of the corpus delicti of the crime of murder, that is, that the death was caused by the criminal conduct of someone, just as here the dispute is as to the second element of the corpus delicti of the crime of arson, that is, that the fire was caused by the criminal act of someone.

In Self, the Court of Criminal Appeals, addressing itself to the second element of the corpus delicti of murder, said, “The disappearance and death of two apparently healthy girls at the same time makes it more probable that their deaths were caused by criminal means than by suicide, accident, or natural means.” 513 S.W.2d at 837. Thus, the Court of Criminal Appeals, without reference to the confession of the accused, was able to find evidence that the death was the result of someone’s criminal act. If the term “more probable” was deliberately used, it can justifiably be concluded that the Court was of the opinion that the independent evidence established the existence of the second element of the corpus delicti by a preponderance of the evidence.

Self blazed no new trail. Whether we agree with the conclusion which the Court drew from evidence of the simultaneous disappearance and death of two apparently healthy persons is beside the point. If the inference is accepted as a valid one, Self makes no change in the traditional application of the rule applicable to corpus delicti.

The State here argues that the statement in appellant’s confession to the effect that he designedly set the fire finds support in the independent evidence to the effect that the fire occurred. Self lends no support to this argument. In effect, the State insists the evidence of the occurrence of a fire is evidence that the fire was of incendiary origin. Self did not hold that evidence that an identifiable corpse is conveniently found lying around is evidence that the death resulted from foul play. To accept the State’s argument requires that we compress two elements into one. It is nonsense to say that in order to establish the existence of fact C there must be evidence of the existence of fact A and evidence of the existence of fact B, and then to add that evidence of A is evidence of B. If evidence of A is necessarily evidence of B, then the correct statement of the rule is simply, “Evidence of the existence of C requires evidence of the existence of A.” As applied to arson, the State’s position changes the description of the corpus delicti from “a fire designedly set” to simply, “a fire.” We have before us no evidence, independent of appellant’s admissions, which “makes it more probable that” the fire “was caused by criminal means than by” accident or spontaneous combustion.

Nor is independent evidence that appellant was part of the crowd watching firemen attempt to extinguish the blaze evidence that the fire was designedly set. It is common knowledge that conflagrations attract spectators. The presence of a throng of curious persons at a fire tells nothing concerning the origin of the fire, although it may form some basis for conclusions concerning human nature.

In Duncan v. State, 109 Tex.Cr.R. 668, 7 S.W.2d 79, 80 (1928), the Court said:

All the state has in this case independent of the alleged confession of appellant is that a fire occurred. The circumstances attending it are just as consistent with the absence of a crime as with the perpetration of one. Proof that a fire occurred of itself obviously does not prove that the crime of arson has been committed by someone. The record is without any evidence suggesting . that such a fire was incendiary except what is contained in the alleged confession of appellant.

The evidence in this case is much weaker than the evidence in Bussey v. State, supra. There witnesses testified that defendant was in the vicinity of the burned building shortly before the fire started. One witness saw defendant in the area with a bottle, but he did not know what was in the bottle. One witness testified that shortly after defendant left the area she saw smoke coming from the building. The Court said:

In the instant case, no witness testified to the cause of the fire, and indeed, no one even ventured an opinion as to the cause. The State made no attempt to negate the possibility that the fire resulted from defective electrical wiring, a defective water heater, spontaneous combustion, or any other one of the myriad of possible ways in which a house may burn without anyone being criminally responsible therefor. * * * [W]e have motive, declaration of intent, appellant placed in the vicinity of the house shortly before the fire, and the possibility that the fire could have started from another origin. . There is no testimony that anyone saw appellant set the house afire, and no testimony that the house was set afire.

474 S.W.2d at 710. See also Hall v. State, 155 Tex.Cr.R. 235, 233 S.W.2d 582 (1950).

The testimony in Bussey was characterized as “no testimony that the house was set afire.” Evidence which is “no evidence” of the existence of a fact cannot be corroborative of the existence of such fact.

The corpus delicti of the crime of burglary is the breaking into a building. Livingston v. State, 133 Tex.Cr.R. 437, 112 S.W.2d 190, 191 (1937). In this case there is no evidence, independent of appellant’s confession, that a breaking had occurred. The building in question is a public school building, and in the State’s petition the principal of the school was named as owner of the building. The principal testified that he had not given permission to anyone to enter the building “to start a fire” or to “try to steal money.” There is sufficient evidence of the fact that no person had permission to enter the building. But evidence to the effect that no one had permission to enter is not evidence that someone did enter.

In Aaron v. State, 168 Tex.Cr.R. 393, 328 S.W.2d 92 (1959), where it was held that there was evidence of a breaking, the evidence showed that the door to the structure had been closed shortly prior to the loss, and that after the loss the door was found open. Here there is no evidence showing that the doors to the school had been closed. There is no evidence that a door was found open after the fire was discovered or at any time. There is no evidence that a window was broken or that a window which had been closed had been raised.

The State argues that the fact “that the fire damage was confined to the interior of the building, . . . leads to the conclusion that the fire was started from within the building and therefore that an entry into the building had to have been made to start the fire.” The argument might be a persuasive one if the evidence indicated that the fire damage was confined to the interior of the building. However, there is no such evidence. The State introduced into evidence 16 pictures which were identified as correctly depicting “part of the damage.” The witness who identified the pictures testified that the photographs showed only the fire damage “in those particular areas.” He stated that other parts of the building had been damaged, but that it had been impossible to take photographs of all the damage to the building.

Evidence showing that “part of the damage” occurred inside the building falls far short of even indicating that all of the fire damage “was confined to the interior of the building.” Such testimony is no support for the conclusion that the fire was started “from within the building.” Since there is no evidence that the fire started within the building, there is no basis for the conclusion that someone had to enter the building in order to start the fire. The State’s contention also incorrectly assumes that there was evidence that the fire, wherever it originated, had been designedly “started” by someone.

We conclude that there is no evidence, aliunde appellant’s admissions, tending to show the corpus delicti of either arson or burglary. However, there is no merit to appellant’s contention that this conclusion requires that we here render judgment in favor of appellant. Appellant’s admissions constitute “some evidence” of the constituent elements of the corpus delicti of each crime. The total absence of corroborative evidence merely means that the evidence, because of the absence of the required independent evidence, is insufficient to establish the corpus delicti. Such holding requires that the cause be remanded for a new trial.

Since a new trial will be required, it is necessary that we consider appellant’s points concerning the admissibility of his written statement, it being foreseeable that the State will, at the second trial, again offer the confession in evidence.

The fire occurred during the evening of Friday, April 9, 1976. On Saturday, April 10, following several hours of interrogation by law enforcement officials at the police station, appellant signed a written confession. He was then placed in the juvenile detention center where he remained in confinement until about 10:00 A. M. Monday, April 12.

At some time between Saturday evening and Monday morning, it was decided that the statement which appellant had signed on Saturday was inadmissible in court proceedings because of the failure of the law enforcement officials to follow the requirements of Tex.Family Code Ann., § 51.-09(b)(1) (1976 Supp.). This decision was reached after a conference with a member of the district attorney’s office, who recommended that a second statement be obtained.

The applicable statute makes the confession of a juvenile inadmissible unless the child has been given the Miranda warnings by a magistrate and advised by the magistrate that if he is 15 years of age or older, the juvenile court may waive its jurisdiction and certify him for trial as an adult. The statute further requires that the statement be signed by the child in the presence of the magistrate with no law enforcement officer or prosecuting attorney present only after the magistrate is convinced that the child understands the nature and contents of the statement and that he is signing it voluntarily.

At about 10:25 A.M. on Monday, April 12, appellant was taken from his place of confinement to the office of a magistrate, where he was given the required warnings in the manner prescribed by the statute. He was then taken to police headquarters and interrogated in the same office where he had signed the previous statement. This second interrogation and transcription of appellant’s responses on a typewriter was accomplished in about 30 minutes, in contrast to the several hours required in order to obtain the first statement.

After the officer had completed typing the second statement, he again took appellant to the magistrate’s office, where appellant signed it in the presence of the magistrate. The magistrate had no knowledge of appellant’s prior statement.

After the second statement had been signed an officer destroyed the statement which appellant had signed two days previously because, as the officer testified, it was no longer needed.

Appellant unsuccessfully objected to the introduction in evidence of the second statement, invoking the doctrine of the “fruit of the poisonous tree.” Although the deliberate act of the law enforcement officials makes it impossible to compare the two statements, the testimony is to the effect that the two statements are substantially the same.

The doctrine on which appellant relies had its inception in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), where it was held that the prosecution could not use information obtained by illegal search to subpoena the very documents which were discovered as a result of such search. Apparently, the catch-phrase, “fruit of the poisonous tree,” was first used by Mr. Justice Frankfurter in Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1940). The doctrine finds its most frequent application in cases involving unlawful searches and seizures.

The use of the doctrine has resulted in the development of the corollary doctrine of “purging” or “attenuation.” Under this latter theory the critical question is whether, assuming the existence of primary illegal police conduct, the evidence offered has been discovered or made available by exploitation of the primary illegality or, instead, by means sufficiently distinguishable to allow a court to conclude that the offered evidence has been “purged” of the “taint” of the primary illegal police conduct. That is, the connection between the illegal police activity and the proffered testimony may become so “attenuated” as to dissipate the taint. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

We have found only two decisions by the Supreme Court of the United States concerning the reception in evidence of an otherwise admissible confession which was obtained after defendant had made a prior inadmissible statement.

In United States v. Bayer, 331 U.S. 532, 540-41, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1947), defendant, a member of the armed forces, made a statement to military authorities which was subsequently held to be inadmissible. Six months later he made a second statement. During the intervening period, the only restriction of his freedom was his inability to leave the military base without permission. In holding that the second statement was admissible, the Supreme Court said:

Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed. . . . The second confession in this case was made six months after the first. The only restraint under which [defendant] labored was that he could not leave the base limits without permission. Certainly such a limitation on the freedom of one in the Army and subject to military discipline is not enough to make a confession voluntarily given after fair warning invalid as evidence against him.

In Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954), defendant was convicted of murder following a trial at which several confessions given by him on the same day were received in evidence. On appeal, the state court held that the first statement given by defendant was inadmissible. On the second trial, the invalid confession was not used, but the state introduced several of defendant’s subsequent statements. The Supreme Court overturned the conviction, pointing out that in view of the fact that all confessions were made during a period of five hours, following days and nights of intensive interrogation, the relation of the confessions was “so close that one must say the facts of one control the character of the other . .” and that all confessions were simply part of “one continuous process.” 347 U.S. at 561, 74 S.Ct. at 719.

Our case does not fit comfortably within the framework of the facts before the Supreme Court in either of these two decisions. In Bayer, six months elapsed between the two statements. During this period, at least in the view of the Supreme Court, there was no significant restraint on defendant’s freedom. In Leyra, all confessions were obtained during a five-hour period of apparently uninterrupted interrogation at the police station. In the case before us, there was a period of approximately 40 hours during which appellant was not subjected to interrogation, but during all of the intervening period he was incarcerated and did not enjoy the same freedom to communicate with others that the defendant in Bayer enjoyed.

In United States v. Shea, 436 F.2d 740 (9th Cir. 1970), defendant was arrested in Brazil by Brazil police and made a statement, not preceded by proper warnings, to Brazilian authorities. He was then brought to the United States where, after proper warning, he made a second statement to Federal law enforcement officers. A conviction based on the second statement was upheld, with the court emphasizing “the significant separation of time and place” between the two statements. 436 F.2d at 742.

The opinion does not disclose the time which elapsed between the two statements.

There is no objective test which produces an easy solution to problems like the one before us. Apparently, the question is whether the second statement, viewed in the light of the “totality of the circumstances,” is free from the coercive influences which render the first inadmissible. In applying this amorphous standard, it must be borne in mind that the term “coercive influences” does not imply the presence of “coercion” in the normal sense of that word. The term is clearly broad enough to include the presence of circumstances, such as failure to give the required warning, which render the first statement inadmissible.

That portion of our Family Code dealing with juvenile offenders, including § 51.09(b)(1), clearly reflects a judicial determination that such offenders shall be afforded consideration and protection not normally extended to adult offenders. With specific reference to the problem of incriminating statements, the distinction between adults and children is clear. In the case of an adult, for example, the required warnings may be given by the person doing the interrogating. In the case of a child, a warning given by a police officer is insufficient. The warning must be given by a magistrate. The requirement that the confession must be signed in the presence of the magistrate, with no law enforcement officials present, applies only in the case of a juvenile offender. The legislative purpose is manifest.

The statute contains no provisions concerning the circumstances under which a second confession by a child, given after an inadmissible first confession has been made, will be purged of the taint of the previous illegal statement. But it is clear that the legislature contemplated that, in the case of a child, all of the warnings and admonitions required in order to make a statement admissible must be given by a magistrate, and that the magistrate will not permit the child to sign the statement until the magistrate is convinced that the statement is voluntary. Our courts have recognized that once a confession is given, the ability of the accused to resist the information-seeking process is substantially reduced. The impact of a warning given after the first incriminating statement has been made is much weaker than it would have been absent a prior confession, for one cannot be reasonably expected to persist in the denial of that which he has already admitted. Although the legislature has determined that the solemnity of a warning given by a judicial officer is more efficacious, in the case of a child, than one given by a policeman, even a warning by a magistrate, and a determination by the magistrate that the confession is voluntary, is of questionable value when the magistrate’s investigation is made in the absence of all knowledge of a prior illegal statement which places the child at a psychological disadvantage in the subsequent interrogation. Under such circumstances, the admonitions and counsel of the magistrate are unlikely to convert spiritless despair to alert vigilance in a child whose secret is already “out of the bag.”

Under all of the circumstances of this case, we cannot accept the State’s argument that this 14-year-old boy, who had been continuously incarcerated since the time he gave the illegal confession, was adequately warned of the fact that his first statement in no way affected his right to refuse to submit to further interrogation some 40 hours later, and to refuse to give a second statement, is supported by evidence establishing that fact beyond a reasonable doubt. The fact that a policeman, while escorting the child across the street from the detention center to the court room, informed the child that the first statement could not be used and that he had a right to remain silent, falls far short of satisfying the requirements of the statutory scheme and the confession was improperly received.

In view of our conclusion concerning the admissibility of the confession, we decline to pass on appellant’s contention that § 51.-09 is unconstitutional since a determination of that question is not essential to our conclusion that the judgment of the trial court must be reversed.

The judgment of the trial court is reversed and the cause is remanded for a new trial.


author: GUITTARD, Chief Justice.

text:
    EXCHANGE BANK & TRUST COMPANY, Appellant, v. LONE STAR LIFE INSURANCE COMPANY, et al., Appellees.
    No. 19107.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 16, 1977.

      H. Robert Powell, Luce, Hennessy, Smith & Castle, Dallas, for appellant.
    William D. Sims, Jr., Jenkens & Gilchrist, Dallas, for appellees.
   GUITTARD, Chief Justice.

This suit was brought by Exchange Bank & Trust Company against Lone Star Life Insurance Company to enforce a loan commitment made by Lone Star to Five Forty Three Land, Inc., a corporation engaged in land development. Exchange Bank had made a short-term loan to the borrower corporation, and it now seeks as a third-party beneficiary of the loan commitment to require Lone Star to purchase the borrower’s note given for the short-term loan. The trial court rendered summary judgment denying recovery, and Exchange Bank appeals. We affirm on the ground that the bank was, at most, an incidental beneficiary rather than a third-party creditor beneficiary. We hold also that a later acknowledgment to the bank of Lone Star’s commitment to the borrower did not constitute an independent contract between Lone Star and the bank, and that there was no ambiguity in the commitment letter raising a fact issue for decision by a jury with the aid of extrinsic evidence.

The bank cites no reported decision in which a short-term lender has been held to be a third-party creditor beneficiary of a long-term loan commitment. It acknowledges that the contrary was held by this court in Republic National Bank v. National Bankers Life Insurance Co., 427 S.W.2d 76 (Tex.Civ.App.-Dallas 1968, writ ref’d n. r. e.), and also in Briercroft Savings & Loan Ass’n v. Foster Financial Corp., 533 S.W.2d 898 (Tex.Civ.App.-Eastland 1976, writ ref’d n. r. e.), but it undertakes to distinguish these cases on the basis of the peculiar language of the commitment in question.

In the Republic case, this court applied to a similar fact situation the rule that a contract to provide a borrower with funds to pay his debts does not give his creditors a right to enforce the contract as third-party beneficiaries. A similar holding was made in Briercroft. Exchange Bank asserts that this case is different because the provisions of the loan commitment now in question, when considered in the light of the circumstances, obligates Lone Star to purchase the short-term note, and, consequently, gives Exchange Bank the right to enforce the commitment as a third-party beneficiary. Accordingly, we shall examine the circumstances, as established by the summary-judgment proof, and then consider the material provisions of the commitment letter, in order to determine whether a different rule should be applied in this case.

The commitment in question was issued by Lone Star on March 19,1975. It was the last in a series of commitment letters, beginning in 1972, and renewed from time to time. After obtaining the original commitment, the corporate borrower obtained a short-term loan from Texas Bank & Trust Company. On February 1, 1974, Exchange Bank agreed to loan the corporate borrower $250,000 secured by its deed of trust on land in Collin County and by the personal guaranties of its officers, James C. Hadsell and Charles Belew. The bank calls our attention to an affidavit by one of its officers that this loan was made in reliance upon Lone Star’s commitment, although it does not refer us to any contractual document so providing. On February 8, 1974, Lone Star renewed its commitment to the borrower, and in August 1974, at the borrower’s request, increased its commitment to $350,-000. At about the same time Exchange Bank increased its loan to the same amount. This increased loan was renewed, as evidenced by a new note payable to the bank dated February 10, 1975, and on March 19, 1975, the commitment letter in question was signed by Lone Star and the borrower. We quote this letter with the deletions and emphasis in the bank’s brief:

Five Forty Three Land, Inc.
2915 LBJ, Suite 101
Dallas, Texas 75234
Attention: Mr. James C. Hadsell
Gentlemen:
Re: Application for $350,000 First Mortgage Loan on a 255.064 acre Country Estate Development, Collin County, Texas.
We are pleased to inform you that Lone Star Life Insurance ComPany (“Lender”) has approved your application for a $350,000 First Mortgage Loan. Loan is to be made to Five Forty Three Land, Inc. (“Borrower”) and is secured by a first mortgage lien on the above-referenced property. .
Funding of the loan by Lender is subject to the following terms and conditions:
1. The amount of the loan is . for five years at 15% per annum. Amortization . and . . . payment of interest ... as follows:
a. Twenty-four (24) consecutive monthly payments .
b. The loan may be prepaid .
2. The loan is to be secured by a first mortgage lien .
3. The personal guaranties of James C. Hadsell and Charles E. Belew held by Exchange Bank & Trust Company covering the existing $350,000 first mortgage loan (the “Bank Loan”) on the Property will be assigned to Lender.
4. Borrower will provide to Lender, at date of closing, a Mortgage’s [sic] Title Policy on form and from company acceptable to lender . . . naming Lender as insured and guaranteeing that the Loan is secured by a valid first lien against the Property and containing only those restrictions, easements or reservations shown in the Mortgagee’s Title Policy issued by Southwest Title Insurance Co. to Exchange Bank & Trust Company with respect to the Property and the above-captioned Loan and such other restrictions, easements or reservations as Lender may approve, such approval not to be unreasonably withheld.
5. All documents required at closing by Lender must be acceptable to Lender’s counsel; provided, however, Lender agrees that the terms and provisions of the Deed of Trust and personal guaranties executed by Borrower, James C. Hadsell and Charles E. Belew, as the case may be, in connection with the Bank Loan are acceptable to Lender.
6. All costs of closing, ... by Borrower.
7. Lender will not be obligated to fund the loan prior to August 11, 1975, nor later than October 10, 1975.
8. Written notice will be given Lender by either Borrower or Exchange Bank & Trust Company at least sixty (60) days prior to the date when Lender will be called upon by Borrower to fund the Loan.
9. This commitment by Lender is nonassignable.
If this Commitment Letter . agreeable to you, please so indicate by executing the copy of . . .. This Commitment Letter will be null . if not executed and returned prior to March 29, 1975.
David A. Keener, Chairman
Lone Star Life Insurance Company
On May 16,1975, the bank’s officer wrote the following letter to Lone Star:
Mr. D. A. Keener
Lone Star Life Insurance Company
200 Treadway Plaza
Dallas, Texas 75235
Re: Commitment Letter dated March 19, 1975
FIVE FORTY THREE LAND, INC.
Dear Mr. Keener:
This is to put you on notice that Exchange Bank & Trust Company expects Lone Star Life Insurance Company to purchase the above reference note not prior to August 11, 1975, nor later than October 10, 1975. This will comply with the request that we notify you in writing sixty (60) days prior to the take out date.
Please acknowledge receipt of this notice by signing a copy of this letter.
Thank you for your cooperation.
Sincerely,
N. L. Lester
Executive Vice President

On June 2, 1975, an officer of Lone Star added a notation to the letter, signed it, and returned the letter with its notation to the bank. This notation, which the bank now asserts to be an independent promise to purchase its note, is as follows:

We acknowledge receipt of this notice and agree to comply with the terms and conditions as set out in the commitment letter referenced above.

There is no evidence that the borrower ever “called on” Lone Star to fund the loan. On September 15, the borrower requested a two-year extension of the commitment. On October 7, Exchange Bank made written demand on Lone Star to purchase its note. On October 10, the last day before the commitment expired by its own terms, Lone Star and the borrower orally agreed to a one-year extension, and Lone Star wrote a letter to that effect to the borrower, but the letter provided that the extension would be “null, void, and of no further force and effect if not executed and returned prior to October 17, 1975.” This letter was never signed or returned by the borrower. On November 13, 1975, Lone Star notified the borrower that the commitment had expired and that Lone Star would not make the loan because of the insolvency of the borrower and of Hadsell, one of the guarantors of the bank’s note. Later, the borrower’s corporate charter was revoked, and Hadsell filed a bankruptcy proceeding. Lone Star declined to purchase the bank’s note, and this suit followed.

In attacking the summary judgment rendered by the trial court, Exchange Bank relies on several differences between the language of the present commitment letter and that in the Republic and Briercroft cases, supra. It points out that in each of those cases the commitment letter did not name the short-term lender, and, therefore, it says that the letter was properly construed merely as a promise to the borrower to provide funds which the borrower at its discretion could use to pay off the short-term loan; whereas, here, it argues, Lone Star’s commitment letter expressly refers to the Exchange Bank loan and, in effect, requires an assignment of that loan and its security to Lone Star. Thus, the bank insists that the letter expressly provides that the personal guaranties of Hadsell and Be-lew held by Exchange Bank should be assigned to Lone Star, that the deed of trust and guaranty agreements executed in connection with the bank’s loan were acceptable to Lone Star, that the title insurance policy to be furnished by the borrower should contain only the exceptions in the policy previously issued to the bank in connection with this loan, and that notice that Lone Star would be called on by the borrower to fund the loan would be given either by the borrower or by Exchange Bank. The bank argues that the provision for assignment of the guaranties shows an intention that the bank’s note itself should be assigned, and consequently, that the commitment obligated Lone Star to pay the proceeds of the loan directly to the bank (or to a title company for transmission to the bank), rather than to the borrower. It also urges the provision allowing notice to be given by the bank as evidence of an intention to make the bank a third-party creditor beneficiary.

These references to Exchange Bank and its note do not, in our opinion, distinguish the present case materially from Republic and Briercroft. As the extrinsic summary-judgment proof in this case shows, banks making short-term loans on real estate customarily rely on long-term loan commitments as sources of funds to the borrowers for repayment of the short-term indebtedness, whether or not the short-term lender is named in the long-term commitment, and customarily the proceeds of the long-term loan are transmitted through a title company to the short-term lender. We do not see how naming the short-term lender in this commitment letter materially changes the substance of the transaction. The commitment in question obligates Lone Star to make a loan to the corporate borrower and to disburse the proceeds for the borrower’s benefit. Therefore, as in Republic and Briercroft, consummation of the long-term loan depends on the decision of the borrower, and any benefit to the short-term lender is incidental.

The right of a short-term lender to enforce such a commitment when the borrower is unable or unwilling to consummate it should not rest on implication. In this sense, we reaffirm our statement in Republic that the parties to a contract are presumed to contract for themselves, and that when a third party asserts rights under it, the intent that it should inure for his benefit must be “clearly apparent,” and any doubt should be resolved against such intent. 427 S.W.2d at 79-80.

Lack of intent to provide for Exchange Bank any independent right to enforce the commitment letter is shown by the circumstance that permitting enforcement by the bank as a third-party beneficiary would have the effect of altering the terms of the loan which Lone Star committed itself to make. The bank contends that the letter is, in effect, a “take-out commitment,” which obligates Lone Star to purchase the bank’s note, regardless of whether the borrower is willing or able to consummate the loan. It argues that if the borrower fails to execute a new note and deed of trust on the terms provided, Lone Star’s remedy is to assert the rights of an assignee of the bank’s note, that is, to foreclose the bank’s deed of trust, sue the borrower on the bank’s note, and enforce the liability of the bank’s guarantors. We do not believe that the commitment letter can fairly be interpreted as obligating Lone Star to place itself in the bank’s position. The letter does not by its terms provide that Lone Star should purchase the note, and only by implication does it contemplate an assignment of the note to Lone Star. The letter provides rather for a loan to the corporate borrower on terms different from those provided in the bank’s note. The commitment is for a loan for a period of five years, with interest at 15% per annum, both principal and interest payable in monthly installments. Presumably the prospect of receiving the interest, as well as repayment of the principal, was a substantial inducement for the commitment. The contemplated assignment of the bank’s note, with its guaranties, was in the nature of additional security for the new note to be signed by the borrower. If Lone Star’s commitment were simply to purchase the bank’s loan, simpler and less equivocal language could easily have been employed, and a direct promise by Lone Star to pay the money to the bank would have been more appropriate. Consequently, we conclude that the bank is not a third-party creditor beneficiary with an independent right to require Lone Star to purchase its loan.

This conclusion is not affected by the provision in the letter for notice to be given by either the borrower or the bank. The notice is required “at least sixty (60) days prior to the date when Lender will be called on by Borrower to fund the Loan.” This provision contemplates that the borrower rather than the bank would “call on” the lender to fund the loan, even though the notice may be given by the bank. Significantly, it does not provide that the bank may call on the lender to advance the funds even when the borrower does not call on it to do so. This provision means only that a notice by the bank is equivalent to a notice by the borrower. It does not purport to grant to the bank any additional right, and, in our opinion, should not be interpreted to do so.

In the alternative, Exchange Bank contends that if it is not a third-party beneficiary as a matter of law, the commitment letter is ambiguous in that respect, and, consequently, that there is a fact issue which precludes the summary judgment rendered by the trial court. We do not agree that the letter is ambiguous. The bank does not point out any particular language which it asserts to be susceptible of more than one meaning. Each provision is clear enough in itself. The uncertainty, if any, does not relate to the meaning of the language, but rather to the legal effect of the letter as a whole. The question, therefore, is one of legal construction rather than interpretation. See Don Drum Real Estate Co. v. Hudson, 465 S.W.2d 409, 413 (Tex.Civ.App.-Dallas 1971, no writ); 3 A. Corbin, Contracts, § 534 (1960). Such a question of legal construction is a question of law for the court rather than a question of fact for the jury. See Tower Contracting Co. v. Flores, 157 Tex. 297, 302 S.W.2d 396, 399 (1957). Consequently, the trial judge was authorized to construe the commitment letter on motion for summary judgment, and, for the reasons already stated, we find his construction to be correct.

Exchange Bank further contends that Lone Star made an enforceable independent promise directly to the bank to purchase its loan. As we have already noted in our recitation of the facts, on May 16, 1975, the bank mailed a letter to Lone Star calling on Lone Star to purchase its note. On June 2, 1975, Lone Star’s president responded by returning the letter to the bank with the following notation: “We acknowledge receipt of this notice and agree to comply with the terms and conditions as set out in the commitment letter referenced above.”

The bank argues that this acknowledgment is a direct promise to it by Lone Star, but does not assert that it constituted a new contract based on a new consideration or that the bank changed its position in reliance on it. We hold that it does not have the elements of a new contract, and, therefore, it cannot be enforced by the bank. Although the notice states that the bank expects Lone Star to purchase the note, the acknowledgment avoids acquiescence in this demand. It merely states Lone Star’s intention to comply with the commitment on which Lone Star was already bound. This means nothing more than that Lone Star would comply if the borrower would also comply. Consequently, it cannot fairly be interpreted as an independent contract obligating Lone Star to purchase the bank’s note, regardless of whether the borrower is able and willing to accept the loan.

In view of our holding that as a matter of law Exchange Bank is not a third-party creditor beneficiary with the right to enforce the commitment in question, and that Lone Star’s acknowledgment of June 2, 1975, did not constitute a new contract directly with the bank, the bank’s contentions with respect to satisfaction and waiver of conditions precedent to Lone Star’s obligation under its commitment become immaterial. Accordingly, all of the bank’s points of error are overruled.

Affirmed.

ROBERTSON, J., not participating.