author: PHILLIPS, Chief Justice.

text:
    WINDSOR GAS CORPORATION, Appellant, v. RAILROAD COMMISSION OF TEXAS et al., Appellees.
    No. 12323.
    Court of Civil Appeals of Texas, Austin.
    Nov. 5, 1975.
    Rehearing Denied Dec. 3, 1975.
    Frank Douglass and Ivan D. Hafley, McGinnis, Lochridge & Kilgore, Austin, for appellant.
    John L. Hill, Atty. Gen., Linward Shivers, Asst. Atty. Gen., Austin, for Railroad Commission of Tex.
    John W. Stayton, Stayton, Maloney, Hearne & Babb, Austin, for William B. Wilson and others.
   PHILLIPS, Chief Justice.

The question before us is whether, under the hereinafter described facts, the owners of a two-thirds mineral interest in a 15,000-acre tract of land have established the jurisdiction of the Texas Railroad Commission under the provisions of Tex.Rev.Civ.Stat. Ann. art. 6008c (otherwise known as the Mineral Interest Pooling Act) to force a cotenant owner of a one-third mineral interest in the same tract to pool his interest.

Appellant Windsor Gas Corporation either owned or controlled through a limited partnership the mineral interests in two-thirds of the 15,000-acre Wilson Ranch in Sutton County. It applied to the Railroad Commission of Texas under eight separate applications for formation of eight drilling units under the Mineral Interest Pooling Act. The Commission denied the applications, ruling that the Commission’s jurisdiction under the Act had not been established. Appellant then filed suit in the district court of Travis County pursuant to which the court entered a take nothing judgment against appellant. We affirm this judgment.

A précis necessary to the disposition of this appeal is as follows: Mrs. Nannie B. Davis, and husband, conveyed a 14,537-acre tract in Sutton County (the Wilson Ranch) to Mary Dan Sandlin, Duke Wilson and William B. Wilson as life tenants with the remainder to their respective heirs. Although the grantees were given only life tenancies, they were also given the exclusive right to lease for oil, gas and other minerals for the benefit of themselves and their remaindermen.

Mary Dan Sandlin, a widow, leased her undivided one-third interest in the ranch minerals, including oil and gas, to appellant. Duke Wilson, joined by his wife, then leased his one-third interest in the minerals, including oil and gas, to appellant. Subsequently, appellant made efforts to lease William B. Wilson’s one-third interest, but Wilson refused.

At this time it appeared to appellant that it would not be able to lease Wilson’s one-third interest in the ranch minerals, and as appellant had already obtained drilling rigs, financing and a purchaser gathering company to buy the gas, appellant decided that it must proceed with drilling on the ranch without Wilson’s interest.

On March 27, 1973, Wilson wrote appellant setting out terms of a “tentative offer” to join with it in drilling a single gas well with Wilson’s share of drilling costs to be deducted from his share of production. The following day appellant, not yet in receipt of Wilson’s letter, wrote Wilson again offering to lease his interest, or in the alternative, to enter into an operating agreement to develop the ranch minerals by the initial drilling of eight gas wells. Appellant’s joint operation offer would require Wilson to prepay $53,333.33 as his pro rata share of the estimated $160,000.00 cost of each well. Eight wells, as proposed by appellant, would require Wilson to make a cash investment of $426,666.00. As an alternative to prepayment of his share of drilling costs, appellant proposed that Wilson have his one-third share of drilling costs deducted from his one-third share of production. This would be a risk factor of two to one, meaning that appellant would retain the first $853,332.00 worth of Wilson’s one-third share of production to satisfy Wilson’s pro rata share of the drilling costs. In addition appellant’s proposal required Wilson to pay $2,000.00 per month per well while drilling and $400 per month per well as operating expenses.

There is no evidence in the record indicating any response by appellant to Wilson’s letter of March 27.

When Wilson failed to respond to appellant’s offer of March 28, within the seven-day deadline contained therein, appellant on April 9, 1973, formed a limited partnership termed Sutton Associates. Sutton Associates consisted of appellant as the general partner and several individual investors as limited partners. Appellant immediately assigned to Sutton Associates its two-thirds undivided mineral interest in fourteen separate 80-acre tracts, each of which was surrounded by 240 acres of land held jointly by appellant and Wilson. The total area of each combined unit equaled 320 acres, the area required by Railroad Commission spacing requirements for the drilling of a gas well.

On May 8, 1973, appellant filed eight separate applications with the Railroad Commission to force pool under the Mineral Interest Pooling Act each of eight 80-acre tracts it had assigned to Sutton Associates and now owned jointly by Wilson and Sutton Associates, with the 240 acres adjacent to each owned in common by Wilson and appellant. The Railroad Commission consolidated appellant’s eight applications for hearing purposes, held the hearing, then denied the applications, stating that its jurisdiction under the Act had not been established.

At the trial of appellant’s appeal to the district court, the parties joined in a stipulation which reads in part as follows: “Windsor has met all conditions and complied with all requirements of the Mineral Interest Pooling Act, Article 6008c, except the two issues to be determined by the Court, as follows: (1) whether the facts as herein stipulated or otherwise proved result in the existence within each of Windsor’s proposed proration units of ‘two or more separately owned tracts of land’ as that term is used in Mineral Interest Pooling Act, and (2) whether Windsor has made a ‘fair and reasonable offer to voluntarily pool’ to Mr. Willie B. Wilson as the term is used in the Mineral Interest Pooling Act. These two questions are the sole issues in this lawsuit

Inasmuch as this Court is of the opinion that appellant’s points of error two and four must be overruled, we do not reach its first and third points and there will be no further reference to them in this opinion.

Appellant complains in its second and fourth points of error that the trial court erred in upholding the Railroad Commission’s dismissal for lack of jurisdiction of appellant’s eight separate applications under the Mineral Interest Pooling Act (Tex. Rev.Civ.Stat.Ann. art. 6008c, Supp.1975), because neither under the preponderance of the evidence rule nor under the substantial evidence rule can such dismissal for lack of a “fair and reasonable offer to voluntarily pool” be sustained.

Since we are of the opinion that appellant’s offer to Wilson and the consequences of such offer as described by the testimony of the witnesses in the record before us is not a “fair and reasonable offer to voluntarily pool” under either, or both, the substantial evidence rule or the preponderance of the evidence rule, we are not required to decide which of these rules, to the exclusion of the other, is applicable in this case and we do not so decide.

Appellant’s offer was not to pool the mineral interests in sufficient acreage to create one pooled unit of 320 acres; the offer was to pool at one and the same time the mineral interests in sufficient acreage to create eight pooled units of 320 acres each. When this offer was made, not even one well had been drilled on the jointly owned acreage.

The evidence discloses that the average cost to appellant of drilling the eight wells completed on the eight proposed units was between $160,000 and $200,000. Its offer to Wilson that he so pool, if accepted by Wilson, would have obligated him to pay drilling costs of about $426,000, or allow appellant to recoup such costs on a two-to-one basis out of Wilson’s one-third share of the proceeds of the sale of production. In other words, Wilson was asked to agree to put up $426,000 in cash or allow appellant to appropriate about $850,000 out of the proceeds of the sale of Wilson’s share of the production as a risk factor penalty. This risk factor was established by appellant at two to one in its offer to Wilson, despite the trial testimony of appellant’s president, in an effort to explain why Windsor had proposed the drilling of eight wells, that “[W]e have production on both the west side and the east side and we felt rather confident that we had eight proven locations, and leased on the history of the county, all the wells drilled in that area last year, not even taking wells that were offset on each side, had about an 84.6 percent success factor. So we felt there wasn’t any risking.” (Emphasis added) It has been suggested by an authority in the field that in evaluating an offer to pool voluntarily, a risk penalty in excess of two to one, the maximum risk penalty the Railroad Commission is authorized to impose, may be presumptively unfair.

We hold that appellant’s offer for the initial drilling of eight drilling units on a “take it all” or “leave it all” basis, and with a two-to-one risk factor, was not a “fair and reasonable offer to voluntarily pool.” This is so in spite of appellant’s contention that the eight drilling units were reasonable because there were producing wells on leases offsetting the proposed units and that the eight wells were needed to prevent drainage.

It is clear from the language of the Act that “fair and reasonable offer” must be fair and reasonable from the standpoint of the party being forced pooled. Consequently, there is ample evidence before us, irrespective of the standard used to measure its weight, that the Commission’s finding against the fairness and reasonableness of the order must stand.

The judgment of the trial court is affirmed.

        .“First Point of Error. The trial court erred in upholding the Railroad Commission’s dismissal for lack of jurisdiction of appellant’s eight separate applications under the Mineral Interest Pooling Act, Art. 6008c, VACS, because the preponderance of the evidence established the jurisdictional fact of ‘two or more separately-owned tracts of land’ necessary to confer jurisdiction of the applications upon the Commission under Art. 6008c.

        “Third Point of Error. The trial court erred in upholding the Railroad Commission’s dismissal for lack of jurisdiction of appellant’s eight separate applications under the Mineral Interest Pooling Act, Art. 6008c, VACS, because the dismissal was not reasonably supported by substantial evidence of no ‘separately-owned tracts of land’ in the proposed pooled units.”

      . For a definition of the substantial evidence rule see: Railroad Comm. v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942).

      . For a definition of the preponderance of the evidence rule see: In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

      . See Ernest E. Smith, The Texas Compulsory Pooling Act, 44 Texas L.Rev. 387, 390 (1966).

      . See Smith, supra, at 388-389.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    John W. PORTER, Appellant, v. Warren H. HOOPER and Martha L. Hooper, Appellees.
    No. 5463.
    Court of Civil Appeals of Texas, Waco.
    Nov. 6, 1975.
    Rehearing Denied Dec. 4, 1975.

      Boyd, Veigel & Gay, Inc., William M. Boyd and George H. McCleskey, McKinney, for appellees.
   HALL, Justice.

The appellant seeks the reversal of a judgment holding that he breached a written contract for the purchase by him of approximately 240 acres of land located in Collin County at $1,050 per acre; and awarding an escrow deposit of $10,000 to the appellees, the sellers, as liquidated damages for the breach. Because of an incomplete statement of facts, we affirm.

Trial was to the Court without a jury. Findings of fact and conclusions of law were filed in support of the judgment. All of the assignments of error relate to the asserted factual and legal insufficiency of the evidence to support express findings and implied findings that are necessarily referable thereto which support the judgment.

On the trial, the depositions of the appellant, one of the appellees, and the escrow agent were introduced into evidence “in full and without objection” by agreement of the parties; and it was stipulated that if the deponents “were present and testifying in Court, their testimony would be the same as in these depositions.” The judgment recites that the depositions were considered by the Court.

The depositions do not form any part of the appellate record. Accordingly, the case is before us on a partial statement of facts. The parties have not stipulated that the partial statement of facts constitutes an agreed statement of facts. See Rules 375, 377, and 378, Vernon’s Tex.Rules Civ.Proc.

“The burden is upon a party appealing from a trial court judgment to show that the judgment is erroneous in order to obtain a reversal. When the complaint is that the evidence is factually or legally insufficient to support vital findings of fact, or that the evidence conclusively refutes vital findings, this burden cannot be discharged in the absence of a complete or an agreed statement of facts.” Englander Co. v. Kennedy, (Tex.Sup., 1968) 428 S.W.2d 806, 807.

The appellant’s points and contentions are overruled. Community Savings & Loan Association of Fredericksburg v. Citizens National Bank of Waco (Tex.Civ.App.— Waco, 1972, writ dism.), 484 S.W.2d 116. The judgment is affirmed.


author: CORNELIUS, Justice.

text:
    WESTERN ALLIANCE INSURANCE COMPANY, Appellant, v. Corrine S. DENNIS, Appellee.
    No. 8322.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 10, 1975.
    Rehearing Denied Dec. 2, 1975.

      George L. McWilliams, Hubbard, Patton, Peek, Haltom & Roberts, Texarkana, for appellant.
    Joe W. Lovelace, Lovelace & Thompson, Inc., Linden, for appellee.
   CORNELIUS, Justice.

The question to be determined is whether, in the endorsement to appellee’s automobile liability insurance policy providing the “Personal Injury Protection” required by Article 5.06-3, Tex.Ins.Code Ann., an exclusion denying such coverage to persons occupying a vehicle owned by the insured but not scheduled as an “insured vehicle” is an unauthorized limitation on the coverage required by the statute.

The facts are undisputed. Appellant insurance company issued an automobile liability insurance policy to appellee Corrine S. Dennis. The policy was effective January 6, 1974, and contained a “Personal Injury Protection Endorsement” in a form approved by the State Board of Insurance. The endorsement provided for benefits up to $2,500.00 for each designated person. The automobile named in the policy as the “insured vehicle” was a 1968 Buick. On August 12, 1974, the two minor sons of appellee were injured when the motorcycle they were riding was struck by a truck. The motorcycle was owned by one of the sons but it was not listed as an “insured vehicle” in appellee’s insurance policy. The appellant refused to pay the personal injury protection benefits on the sole basis of the exclusion which provided:

“This insurance does not apply:
(a) • ■ .
' (b) To the named insured or any member of the insured’s household who sustains bodily injury while occupying or through being struck by a motor vehicle owned by such named insured or any member of the insured’s household which is not an insured motor vehicle.”

Appellee brought suit to collect the personal injury protection benefits, contending that the exclusion was invalid because it denied the coverage mandated by Article 5.06-3, Tex.Ins.Code Ann. In a nonjury trial, the court sustained appellee’s contention and rendered judgment against appellant for the personal injury protection benefits, together with penalty and attorneys’ fees.

Article 5.06-3, Tex.Ins.Code Ann. provides in part as follows:

“(a) No automobile liability insurance policy, . . . shall be delivered or issued . . . unless personal injury protection coverage is provided therein or supplemental thereto .
(b) ‘Personal injury protection’ consists of provisions . . . which provide for payment to the named insured in the motor vehicle liability policy and members of the insured’s household, any authorized operator or passenger of the named insured’s motor vehicle including a guest occupant, up to an amount of $2,500 for each such person for payment of all reasonable expenses arising from the accident and incurred within three years from the date thereof for necessary medical, surgical, x-ray and dental services, . . . ”

Exclusions similar to the one involved here were enforced in Texas as to personal injury protection when that coverage was strictly a matter of voluntary contract. Since the adoption of Article 5.06-3, which made such coverage mandatory unless rejected by the insured, no case has ruled on the validity of the exclusion. The Supreme Court has ruled, however, that such an exclusion relating to uninsured motorist protection is an unlawful restriction of the coverage required by statute, and expressions to the contrary in earlier cases were expressly disapproved. Westchester Fire Insurance Company v. Tucker, 512 S.W.2d 679 (Tex.1974). The reasons supporting such ruling apply as well in this case. Article 5.06-3 provides in explicit terms the coverage it requires. It provides for two exclusions, neither of which applies here. There is no indication in the statute that the coverage is to be further limited by restricting it to accidents involving only scheduled vehicles. Although the form of endorsement containing the exclusion in question was approved by the State Board of Insurance, the power given by the statute to that agency to prescribe appropriate forms did not authorize it to deny the coverage, but rather “to provide the coverage” described in the article. Article 5.06-3, Tex.Ins.Code Ann.; American Liberty Insurance Company v. Ranzau, 481 S.W.2d 793 (Tex.1972).

We hold that the exclusion in question is an unauthorized limitation of the protection required by the statute and is ineffective. The judgment of the trial court is affirmed.

      . See Vaughn v. Atlantic Insurance Company, 397 S.W.2d 874 (Tex.Civ.App. Tyler 1965, writ ref’d n. r. e.).

      . Required by Article 5.06-1, Tex.Ins.Code Ann.


author: SHANNON, Justice.

text:
    Victoria H. ECHOLS, Appellant, v. AUSTRON, INC., et al., Appellees.
    No. 12316.
    Court of Civil Appeals of Texas, Austin.
    Nov. 12, 1975.
    Rehearing Denied Dec. 3, 1975.

      Thomas H. Watkins, Watkins, Ledbetter, Hayden & Ramsey, Austin, for appellant.
    T. B. Wright, Austin, for appellee, Aus-tron, Inc.
    Milton L. Bankston, of Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellee, James D. Echols.
   SHANNON, Justice.

This appeal arises from an alleged civil conspiracy.

Appellant, Victoria H. Echols, filed suit in the district court of Travis County against appellees, James D. Echols, her former husband, and Austron, Inc. Appellee Echols was, at all times material, the president of Austron, Inc. Appellant alleged a conspiracy between appellees to deprive her of assets awarded her by a previously entered judgment of divorce. The suit was for exemplary damages in the sum of $55,000.00, for an accounting, and for equitable relief with regard to the conversion rights pertaining to certain certificates of stock of Austron, Inc. The case was submitted to the jury and after the jury was unable to agree upon a verdict, the district court discharged the jury and upon motion of appel-lees, entered judgment for appellant for the sum of money equal to the amount paid by Austron, Inc., to Echols representing accrued dividends on certain classes of its preferred stock. Otherwise, the judgment provided that appellant take nothing.

James D. Echols and Victoria H. Echols were divorced by order of the district court of Travis County on November 5, 1971. The divorce judgment awarded practically all of the property of the parties to appellant except that appellee Echols was award,ed 32,000 shares of Austron, Inc., common stock. Along with other property, appellant was awarded 2,942 shares of Austron, Inc., Class C preferred stock and 8,822 shares of Austron, Inc., Class D preferred stock. The divorce judgment further provided that all community indebtednesses of the marriage be adjudged the indebtedness of appellee Echols, and he was ordered by the terms of the judgment to indemnify and hold appellant harmless from such indebtedness.

In her original and supplemental petitions appellant alleged that appellee Echols and Austron, Inc., conspired to fraudulently deprive her of her share of the community assets by authorizing a lump sum or bonus payment to Echols immediately after the rendition of the divorce. Appellant pleaded that the payment by Austron, Inc., to Echols represented compensation to him for services performed during the existence of the marriage and that she was due one-half of the sum paid.

Appellant alleged further that Echols and Austron, Inc., conspired to fraudulently deprive her of her property by refusing to pay her the accrued dividends on the Class C and D Austron, Inc., preferred stock which had accumulated from the,first quarter of 1971 through the date of the rendition of the divorce, November 5, 1971. Appellant alleged that instead of paying her those dividends, Austron, Inc., in January, 1972, paid those dividends to Echols.

Appellant also alleged that the Class C Austron, Inc., preferred stock had certain conversion rights which entitled her to have such stock converted into Austron, Inc., common stock. Appellant elected to convert her preferred shares of stock to common stock, but she alleged that through the efforts of Echols and Austron, Inc., she could not obtain the consent of the secondary pledgee of the stock, Texas Capital Corporation. Appellant claimed that the refusal by Austron, Inc., to honor her election to convert her preferred stock to common stock was deliberate and contrived solely for the purpose of injuring her and depriving her of the enhanced value which the common stock would have had. In this connection, appellant prayed for an injunction requiring Austron, Inc., to convert her preferred stock into common stock, and to cause the issuance and delivery to her of those certificates of common stock.

In her supplemental petition appellant claimed that Austron, Inc., refused to allow her the conversion of her preferred stock to common stock. Appellant claimed that by so blocking her conversion of the preferred stock, Echols failed to hold her harmless of the lien of the second pledgee, Texas Capital Corporation, in violation of the provisions of the judgment of divorce.

A resumé of the facts follows. Appellee Echols is the president of Austron, Inc., and has been since its beginning in 1962. He is the owner of about thirty percent of the company’s common stock. At the time of the divorce proceedings all of the common and preferred stock of Austron, Inc., held by appellant and appellee Echols was pledged as collateral on loans made by a local bank and by Texas Capital Corporation. The loans and pledges had originated in 1967 when Austron, Inc., borrowed $300,-000.00 from Texas Capital Corporation, and Echols and others borrowed $200,000.00 from the bank to purchase certain product lines from another company. Since that date the financial condition of Austron, Inc., has fluctuated. In the autumn of 1972, Austron, Inc., began a recapitalization program which included the sale of a subsidiary company, payment on the Texas Capital Corporation notes, refinancing the note at the bank, and redemption of all classes of preferred stock.

The Class C preferred stock of Austron, Inc., carried a conversion privilege whereby it could be converted at anytime by the owner at the rate of one share of preferred stock for one share of common stock. The conversion privilege continued up until such time as a redemption might be declared by the Austron, Inc. Class C preferred stock had a stipulated dividend of seven and one-half percent interest annually, and a redemption value of $4.25 per share.

The common stock of Austron, Inc., has never paid any dividends and it has no stated redemption value. Unlike the preferred stock, the common stock does have voting privileges.

After the rendition of the divorce between the parties on November 5, 1971, but prior to the entry of the judgment on January 7, 1972, three events occurred. On November 12, 1971, Austron, Inc., paid Echols a “bonus payment” of $2,000.00. On December 1, 1971, Austron, Inc., with the consent of its creditor, Texas Capital Corporation, raised Echol’s salary some $395.84 monthly. Also in the time between the date of the rendition of the divorce and the entry of the judgment, Austron, Inc., paid dividends to Echols on the Class C and D preferred stock held in Echols’ name for the first three quarters of 1971.

On September 1, 1972, the board of directors of Austron, Inc., voted to redeem on October 9,1972, certain classes of preferred stock, including Class C preferred stock. The bylaws of Austron, Inc., provide that thirty days’ notice be given to the affected stockholders, and that should such a shareholder choose to exercise his privilege of conversion the exercise of that right must be accomplished five days before the stated redemption date, or in this instance, on October 3, 1972.

During the afternoon of Friday, September 29, 1972, appellant through her attorney, presented to Austron, Inc., the stock certificate for 2,942 shares of Class C preferred stock for conversion on a one-to-one basis for common stock. With the stock certificate appellant also presented to Aus-tron, Inc., a letter from the bank lienholder assenting to the conversion. Appellant, however, did not have consent for conversion from the other lienholder, Texas Capital Corporation. The consent of Texas Capital Corporation was a prerequisite for conversion.

After appellant’s presentation of the certificate and request for conversion on Friday, September 29, 1972, and before Monday, October 2, 1972, Echols called the president of Texas Capital Corporation, Thomas H. Schnitzius, by telephone and advised him of appellant’s request. Schnitzius asked Echols whether Austron, Inc., preferred conversion or redemption of the stock. Echols told him that “. . . we preferred not to have the stock converted, and we preferred not to have Mrs. Echols as a shareholder — common shareholder because of her disruption of the company’s business in the past.” On October 19, 1972, the president of Texas Capital Corporation advised Austron, Inc., that his company refused to consent to appellant’s request to convert her preferred stock to common stock.

At trial, Schnitzius testified that Texas Capital Corporation was a major creditor of Austron, Inc., and that under the loan agreement his company had the right to have a member on the board of directors of Austron, Inc. In deciding whether or not to give his company’s consent to appellant’s request for conversion, Schnitzius testified that he considered the conversion disadvantageous to his company. He said that he made the decision for Texas Capital Corporation with no pressure from Echols.

Appellant’s preferred stock was then redeemed and the sum of about $13,000.00 was placed in a local bank in escrow for appellant and appellant’s stock certificate was canceled.

Appellant attacks the judgment by three points of error: (1) the court erred in directing a verdict in that there was sufficient evidence to raise a fact issue on the question of conspiracy; (2) the court erred in not granting judgment for an additional $1,000.00 as the undisputed evidence was that Austron, Inc., paid a $2,000.00 bonus to Echols, that was community property; and (3)the trial court erred in failing to order Echols to exchange sufficient shares of Austron common stock to appellant for her Austron preferred stock, since as a matter of law, Echols had disobeyed the order of the trial court to indemnify appellant from all loss as a result of the community debts.

A civil conspiracy has been defined as a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. The gist of a civil conspiracy is the damage resulting from the commission of a wrong which injures another, and not the fact of the conspiracy itself. Schlumberger Well Sur. Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854 (Tex.1968).

Proof of a civil conspiracy may be, and usually must be made by circumstantial evidence, but vital facts may not be proved by unreasonable inferences from other facts and circumstances; or as it is said, a vital fact may not be established by piling inference upon inference. Schlumberger Well Sur. Corp. v. Nortex Oil & Gas Corp., supra.

Although circumstantial evidence may be sufficient to prove the existence of a conspiracy, disconnected circumstances any one of which, or all of which, are just as consistent with a lawful purpose as with an unlawful undertaking are insufficient to establish a conspiracy. Switzer v. Joseph, 442 S.W.2d 845 (Tex.Civ.App.1969, no writ), Gager v. Reeves, 235 S.W.2d 688 (Tex.Civ.App.1950, writ ref’d n. r. e.), 15A C.J.S. Conspiracy § 30, at 699-700 (1967).

Under her point of error one, appellant lists a series of business judgments by Austron, Inc., which she says amount to circumstantial evidence of conspiracy. These decisions were: the decision to redeem Class C stock; the communication with Texas Capital Corporation with regard to appellant’s attempt to convert her preferred stock; the decision of Texas Capital Corporation to refuse to allow appellant to convert; the company’s inability to obtain alternate financing to free up the assets that were awarded to appellant held as collateral by a local bank; the decision not to request Texas Capital’s approval of the conversion until it was chronologically too late for appellant to comply with Austron’s bylaw requirements; the decision to grant Echols the largest increase in salary which he had ever received just subsequent to the time it would benefit appellant; the decision to grant Echols the largest bonus which he had ever received just subsequent to the time it would have benefited appellant; and the decision to pay community dividends after the date of the divorce hearing to Echols at a time when it would not benefit appellant.

We have examined the statement of facts with respect to the series of business judgments made by Austron, Inc., which are urged by appellant as circumstantial evidence of conspiracy. We are satisfied from an examination of the statement of facts that the evidence supports appellees’ position that such business judgments are just as consistent with a lawful purpose as with an unlawful undertaking. Switzer v. Joseph, supra. The decision of the board of directors to redeem the preferred stock was not unlawful. It should be observed that one class of preferred stock ordered redeemed was not even a class held by appellant. It is true that Echols did call Schnit-zius by telephone and inform him that appellant had presented her preferred stock certificate for conversion, but appellant produced no evidence to show that the purpose of the telephone call was to persuade Schnitzius to refuse the consent of his company to the conversion. Appellant called Schnitzius as her witness, and Schnitzius testified that he asked Echols’ preference, and upon being asked, Echols told him. It is also clear that the decision to refuse to consent to appellant’s conversion was the responsibility of Texas Capital Corporation and not that of Austron, Inc. The judgment of divorce did not impose any specific time for Echols to free appellant’s stock from the lien. The record shows that because of its recapitalization program commenced in the autumn of 1972, and with the aid of two years of good profits, Austron, Inc., and Echols were able to free the stock from the lien.

There is nothing to appellant’s claim that Austron, Inc., and Echols decided not to request the consent of Texas Capital Corporation until it was too late to comply with the bylaw requirements. As will be recalled, appellant requested a conversion on Friday, September 29, 1972. Echols called Schnitzius before October 2, 1972, concerning whether or not Texas Capital Corporation was willing to give its consent.

There is nothing unlawful in an officer of a corporation receiving at any time a raise in salary or a bonus. The facts show that under its loan agreements, Texas Capital Corporation controlled the salaries of the officers of Austron, Inc. Texas Capital Corporation had denied a raise to Echols until Austron, Inc., had become current on the payment of its loan obligation. Aus-tron, Inc., became current in the autumn of 1971, and on December 1,1971, Texas Capital Corporation consented to the salary increase and the bonus. Additionally, there is no evidence that the salary raise or the bonus were, as termed by appellant, the largest salary increase or largest bonus that he had ever received.

In connection with the last decision of Austron, Inc., which appellant attacks as “conspiratorial,” Austron, Inc., on January 3, 1972, in due order of business, paid the dividends for the first three quarters of 1971 to all persons in whose name the stock was registered on the corporate records. Subsequent to the declaration of the dividend, the judgment of divorce was entered on January 7, 1972. The payment by Aus-tron, Inc., of the dividends was in accordance with its bylaws, and as such, no illegal act was committed.

Appellant recognizes the force of the rule in Switzer v. Joseph, supra, but claims that the following testimony of Echols is direct evidence of conspiracy, and that, as a result, she has succeeded in taking the case beyond the Switzer v. Joseph, supra, rule, and that she has raised an issue of fact which should have been resolved by the jury. The following answers of Echols were in response to questions from appellant’s counsel.

“Q All right. Mr. Echols, is it not a fact that you have told your wife that you will see to it that she will never benefit from those assets awarded to her in the divorce?
A May I ask when that conversation took place?
Q I am just asking you whether or not you made that statement to her.
A There was a great deal of very strong language expressed before the divorce. I assure you that no such conversation took place after this judgment was entered.
In one conversation that I had with her I told her that I had been approached by one of my officers who had told me that, at a party, she had bragged about — she was going to wind up owning half of Austron and she was going to control Austron. He told me that if she walked in the front door, that he was going to walk—
MR. WATKINS: I would object to his testifying to hearsay. I would like to know what he said rather than what somebody told him.
THE COURT: Sustained.
A Well, I told her that that kind of activity was not productive, that that wasn’t going to enhance the value of her stock. That was going to make it worthless. This may be the conversation that you have reference to. But, I assure you that no such conversation took place after this divorce decree. I have never expressed any dissatisfaction with the divorce decree and the division of property since that time.”

If the quoted testimony of Echols is any evidence of conspiracy, it is, in our opinion, no more than a scintilla. To permit proof of conspiracy in this fashion would violate the rule of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898), which requires proof of any fact by evidence amounting to something more than a mere scintilla. Schlumberger Well Sur. Corp. v. Nortex Oil & Gas Corp., supra.

In closing the discussion of this point, we observe that the statement of facts does not show that appellant has suffered any pecuniary damage as a result of any act or omission of appellees. For that additional reason, appellant has failed in her effort to show a conspiracy. Schlumberger Well Sur. Corp. v. Nortex Oil & Gas Corp., supra, at page 856.

Appellant’s point of error two claims that the district court erred in not granting judgment for her for an additional $1,000.00 as the undisputed evidence was that Aus-tron, Inc., paid Echols a $2,000.00 bonus that was community property. It will be recalled that Austron, Inc., paid the bonus to Echols after the rendition of the judgment of divorce, but before the entry of that judgment.

Point of error number two will be overruled inasmuch as the rights of the parties were fixed as of the time of the rendition of the judgment November 5, 1971, rather than as of the time of the entry of the judgment, January 7, 1972. See Baugh v. State, 402 S.W.2d 768 (Tex.Cr.App.1966).

Appellant’s third point of error claims error of the district court in refusing to order Echols to exchange a sufficient number of shares of Austron, Inc., common stock to appellant for her Austron, Inc., preferred stock since as a matter of law Echols had violated the district court’s order to indemnify Echols from all loss as a result of the community debts.

The divorce judgment awarded appellant the shares of Austron, Inc., Class C preferred stock, “together with all accrued earnings, dividends, and conversion rights thereof, and all of the certificates representing same.” The judgment ordered Echols “to indemnify and hold [appellant] harmless therefrom, and to protect all of said property from foreclosure, attachment, and loss for the benefit of [appellant].”

Appellant claims that because of her “loss” of conversion rights, she has a right to be indemnified by Echols in shares of common stock. We will overrule the third point of error. It was appellant, not appel-lee Echols, who lost the conversion rights. Furthermore, the divorce judgment did not place the duty upon Echols to see to it that appellant timely converted her preferred stock.

The judgment is affirmed.


author: YOUNG, Justice.

text:
    Margarito SOTO et al., Appellants, v. Ramon LEDEZMA, Appellee.
    No. 963.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 13, 1975.

      Ronald D. Zipp, Pena, McDonald, Prestía & Zipp, Edinburg, for appellants.
    Ralph Vidaurri, Flores, Sanchez, De Anda & Vidaurri, McAllen, for appellee.
   OPINION

YOUNG, Justice.

This is a will contest. Francisca Ledezma died on April 20, 1974. Thereafter, Ramon Ledezma, her son and only heir, filed application for letters of administration. Subsequently, Margarito Soto, the principal beneficiary, offered the purported will of the decedent for probate. The son was not a beneficiary of the purported will. On the day of trial, Petra Alcoser, independent executrix and legatee under the purported will, attempted to file for probate the same will of Francisca Ledezma. The trial court refused to permit the filing by Alcoser and after a hearing without a jury, denied probate of the will and appointed Ramon Le-dezma as administrator. Judgment was rendered November 4, 1974. From this judgment Soto and Alcoser appeal.

Soto filed a motion for new trial on November 8, 1974. Alcoser again filed application to probate the will and for appointment as independent executrix on November 15, 1974. Also, on November 15, 1974, both appellants filed notice of appeal from the judgment rendered November 4, 1974. On December 15, 1974, the trial court overruled the motion for new trial filed by Soto and denied the application for probate filed by Alcoser. Neither Soto nor Alcoser filed a notice of appeal thereafter.

During oral argument before this Court on May 1, 1975, the appellee raised the issue of our jurisdiction over this appeal. So we must resolve the jurisdictional matter before we consider the appeal on its merits.

Jurisdiction will depend upon our application of Rules 306c and 353(a), T.R.C.P., to the notice of appeal filed in this case. This was a non jury case and, although not required to, the appellant Soto filed a motion for new trial on November 8, 1974. Rule 324, T.R.C.P. On November 15, 1974, eleven days after the judgment appealed from was rendered, Soto and Alcoser filed their notices of appeal. Clearly the notices of appeal were filed too late unless the time was extended by filing of the motion for new trial because Rule 353 requires the filing within ten days after judgment.

The motion for new trial filed by Soto does not name Alcoser. It does assign as error, however, the trial court’s refusal “to allow Defendant to file the Application to Probate Will and For Appointment of Independent Executor.” That motion will not inure to the benefit of Alcoser because a motion for new trial cannot serve as a motion for new trial by any person other than the person or persons actually named therein. Kouri v. Kelton, 178 S.W.2d 712, 715 (Tex.Civ.App. — Fort Worth 1944, no writ). Even if we do consider the application filed by Alcoser on November 15, 1974, as a motion for new trial, the motion was filed too late and would not operate to extend the time to perfect appeal. Rule 329b, T.R.C.P.; Doan v. Warren, 464 S.W.2d 672 (Tex.Civ.App. — Tyler 1971, no writ).

Even though Rule 353 requires that the notice of appeal be filed within ten days after the judgment or order overruling the motion for new trial, there is a recognized exception to this requirement which is found in the provisions of Rule 306c. Grivel v. Atlantic Mutual Insurance Company, 513 S.W.2d 297, 299 (Tex.Civ.App. — Corpus Christi 1974, writ ref’d n. r. e.); Shepherd v. City of Austin, 467 S.W.2d 611, 615 (Tex.Civ.App. — Austin 1971, writ ref’d n. r. e.). In the part pertinent here, Rule 306c provides that a “prematurely” filed notice of appeal is effective and deemed filed on the date of but subsequent to the order overruling the motion for new trial. Reading these rules together, we see that a notice of appeal filed either before or after an order overruling a motion for new trial can be effective. It is clear that if the notice is filed after the order, it must be filed within ten days from the rendition of the order overruling the motion for new trial. But it is not readily apparent from a reading of the rules how “premature” the notice may be.

The appellee concedes that had the notice been filed within ten days of the rendition of the trial judgment, under Rule 306c it would have been effective and deemed to have been filed on the date of but subsequent to the order overruling the motion for new trial. He contends, however, that because the notice was filed eleven days after the judgment, it did not comply with the requirements of Rule 353 and is thus not saved by the provisions of Rule 306c. In effect the appellee argues that if notice is filed before the order overruling the motion for new trial, it must be filed within ten days after the trial judgment is rendered. We disagree.

Nowhere in Rule 306c do we find any mention of the “ten-day after judgment” restriction for the filing of a proper premature written notice of appeal the appellee seeks here to impose. Nor have we found a case, nor has appellee referred us to one, where such restriction has caused a dismissal of an appeal. With those considerations in mind and that of the objective of liberal construction of our rules announced in Rule 1, T.R.C.P., we are lead to construe Rule 306c as a validation of Soto’s notice of appeal. We note here that this problem, about notice of appeal, will not likely arise after the amendment to our rules to become effective January 1, 1976. For example, see comment to Rule 363 in 38 Tex.B.J. 827 (1975).

We, therefore, hold that Soto’s appeal in this case has been timely perfected; not so with Alcoser. Her notice of appeal was not timely and her notice has not been saved by Rule 306c. Therefore, the appeal by Alcoser is hereby dismissed for lack of jurisdiction.

All of which brings us to the consideration of the appellant Soto's points of error. Appellee has not favored us with a brief on the merits of this case. Although discretionary, we may accept as correct any statement made by appellant in his original brief as to the facts or the record unless same is challenged by the appellee. Rule 419, T.R.C.P.; Clyde v. Hamilton, 414 S.W.2d 434 (Tex.Sup.1967). We elect to examine the record.

The appellant brings forward five points of error. In the first, third, and fifth points, he argues that all indispensable parties were not before the court in the trial of this case. Specifically, it is urged that Petra Alcoser was not before the court and that it was error for the trial court to refuse to allow Alcoser to file application to probate will and to be appointed independent executrix.

As we have mentioned, Alcoser offered her application on the day of trial and the will she sought to probate was the same will filed for probate by Soto. It should be noted that Soto and Alcoser were represented by the same law firm. Their attorney offered evidence and cross-examined the witnesses brought by Ramon Ledezma. We must assume that the appellants’ attorney represented the interests of both Soto and Alcoser at trial. Thus, both Soto and Alcoser were before the court and submitted themselves to the jurisdiction of the court.

When citation has been posted in accordance with Tex.Prob.Code Ann. § 128 (a) (1956), the entire world must take notice of proceedings for probate of a will or for the appointment of an administrator. By nature such proceedings are in rem and personal notice is not necessary. Thomas v. Bonnie, 66 Tex. 635, 2 S.W. 724 (1886); Newsome v. Carpenter, 382 S.W.2d 350 (Tex.Civ.App. — Dallas 1964, writ ref’d n. r. e.). The record here reflects that when Ramon Ledezma filed application for letters of administration the requirements of § 128(a) were also complied with. This is all that he was required to do regarding notice to others.

The appellant then argues that Rule 39, T.R.C.P., would require a different result, but he cites us to no case so holding. Of course, different rules control an action brought to contest a will under § 93 of the Probate Code, supra. When the will has already been admitted to probate and an action is brought to set it aside, the legatees and devisees named in the will and heirs at law whose interests in property will be affected by a construction of the will are indispensable parties and must be made parties in accordance with Rule 39. Jennings v. Srp, 521 S.W.2d 326 (Tex.Civ.App. —Corpus Christi 1975, no writ). It follows that when the purported will has not been admitted to probate but is simply offered for probate, as was done in our case, the parties named in the purported will are not interested parties contemplated by Rule 39. They do not have an interest to be protected until it is established that the deceased has left a lawful will. So when the trial court refused to allow Alcoser to file her application on the day of trial to probate the same will that was already before the court, the trial court did not commit reversible error. This is so because Alcoser was before the court and the will she sought to have probated was before the court. Appellant’s points of error one, three, and five are overruled.

In point two, the appellant argues that the trial court erred in admitting the copy of a copy of the death certificate of Francisca Ledezma, certified by the City Registrar of Edinburg, Texas. It is apparent from the statement of facts that the death certificate was offered to establish the death of Francisca Ledezma. We deem it unnecessary to rule upon the admissibility of the death certificate. Competent evidence of the death of Francisca Ledezma is found elsewhere, that being in the testimony of Angelita Ramirez:

“Q The testimony of the application for letters of administration is to the effect she died on April 20, 1974, is that correct?
A Yes, sir.”

Proof of death of the person whose estate is offered for administration is a prerequisite to the jurisdiction of the court. Tex.Prob. Code Ann. § 72 and § 88(a) (1956). Proof of death is found in other competent evidence and appellant has not met his burden of showing that the court’s action in this instance, if error, probably caused the rendition of an improper judgment. Rule 434, T.R.C.P. The general rule is that when a cause is tried before the court without a jury, the admission of illegal evidence is not cause for reversal when there is sufficient legal testimony to justify the court’s findings. Schleicher v. Markward, 61 Tex. 99, 102 (1884); Cantrell v. Woods, 150 S.W.2d 838, 840 (Tex.Civ.App.— Waco 1941, no writ). Appellant’s second point of error is overruled.

The appellant contends in point four that the judgment of the trial court is contrary to the evidence. Here he argues that in the absence of evidence showing that a deceased was ever other than sane, a presumption of continued sanity is established regarding mental competency to make a will. The appellant further urges here that the record is void of probative evidence that Francisca Ledezma lacked the requisite mental capacity to execute a valid will. We disagree with both contentions.

The appellant points out that those who were not medical experts testified about the effects of drugs taken by Mrs. Ledezma (the deceased) on her mental capacity to make a will; that such inadmissible evidence could not be a basis for a finding of incompetency of the decedent to make a will.

In that regard, the rules appropriate to these matters are these: First, if there is any evidence of probative force to support the finding by the trier of facts (here the court without a jury) that the decedent lacked testamentary capacity, then that finding is binding on the appellate court. King v. King, 242 S.W.2d 925 (Tex.Civ.App. — Amarillo 1951) rev’d on other grounds, 150 Tex. 662, 244 S.W.2d 660 (1951). Second, where a lay witness has sufficient opportunity through personal contacts, conversations, association with and observation of the person in question to reasonably form an intelligent opinion as to such person’s sanity, based upon his first hand knowledge, he is qualified to express such an opinion. Reynolds v. Park, 485 S.W.2d 807, 811 (Tex.Civ.App. — Amarillo 1972, writ ref’d n. r. e.).

The will offered for probate here contained a self-proving affidavit in form and contents substantially as appearing in § 59 of the Texas Probate Code. The burden of proving the mental capacity of the testator remains upon the proponent of a self-proved will, but once the self-proved will is produced into evidence, the opponents must go forward with their evidence to rebut the presumption. Reynolds v. Park, supra, at 816. The opponent of the will, Ramon Ledezma, offered evidence of a lack of mental capacity of his mother at the time the will was executed. Both Angelita Ramirez and Consuelo L. Yanez testified that they had known Mrs. Ledezma about twenty-nine years; that Mrs. Ledezma did not know what she was doing if she signed the subject will on November 19, 1973.

Mrs. Ramirez further said that she saw the decedent almost daily during the last year of her life; that Mrs. Ledezma grew more sick (from cancer); that Mrs. Ledez-ma had been a type of mother who was not likely to disinherit her son (the appellee here); that Mrs. Ramirez frequently took Mrs. Ledezma to attempt to transact business about welfare, food stamps, and examinations at a doctor’s office; that Mrs. Le-dezma would sign papers about those matters “just by merely telling (by Mrs. Ramirez) her to sign there”.

The son, Ramon Ledezma, who is appellee herein, also said that his mother, Francisca Ledezma, did not know what she was doing during the time where she is alleged to have executed the will.

We hold, therefore, that the probative evidence on the issue of testamentary capacity from Mrs. Ramirez, Mrs. Yanez, and Mr. Ledezma is sufficient to support the judgment of the trial court in that regard.

The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    CINCO EXPLORATION COMPANY, Appellant, v. AMERICAN BANK OF COMMERCE et al., Appellees.
    No. 853.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 13, 1975.
    Rehearing Denied Dec. 4, 1975.

      Brantly Harris, Prappas, Caldwell & Moncure, Houston, F. Wilbert Lasater, Potter, Lasater, Guinn, Minton & Knight, Tyler, for appellant.
    Clarence N. Stevenson, Fly, Moeller & Stevenson, Victoria, Mike Hatched, Ramey, Flock, Hutchins, Grainger & Jeffus, Tyler, for appellees.
   MOORE, Justice.

This is an appeal from a summary judgment. Appellant, Cinco Exploration Company (Cinco), brought suit against American Bank of Commerce of Victoria (American) and Citizens First National Bank of Tyler (Citizens) for the sum of $30,000.00 which Citizens allegedly wrongfully disbursed contrary to Cinco’s written instructions. While American was originally a party defendant, the trial court rendered judgment in its favor from which no appeal was taken and therefore further mention of • the issue between American and Cinco is unnecessary. Citizens answered the suit with a general denial. Thereafter, Cinco and Citizens both filed motions for summary judgment under Rule 166-A, Texas Rules of Civil Procedure. After a hearing the trial court granted Citizens’ motion for summary judgment and entered a take nothing judgment against Cinco.

We reverse and remand for a trial on the merits.

The material facts are not in dispute. On November 9, 1973, Cinco Exploration Company entered into a letter agreement with Paul B. Goodgame and S. Harry Bergman by which Goodgame and Bergman agreed to assign an oil and gas lease to Cinco. In substance the agreement provided that Goodgame and Bergman would use their best efforts to obtain two amendments to the lease to be executed by the lessors. The instrument provided that upon receipt of satisfactory evidence of acceptance of the lease amendments by the landowners, Cinco would pay Goodgame and Bergman the $30,000.00. The letter agreement further provided that the agreement would terminate if for any reason the $30,000.00 was not paid on or before November 18, 1973. Goodgame and Bergman executed the lease assignment assigning the lease to Cinco and attached it to a documentary draft for $30,-000.00 which they placed with Citizens First National Bank of Tyler, Texas, on November 16, 1973, for collection. Citizens forwarded the draft to its correspondent American Bank of Commerce of Victoria, Texas, for presentment and collection. American received the documentary draft on November 19, 1973, and presented the draft to Cinco for payment. Cinco advised American that the draft was not in compliance with the letter agreement because the two lease amendments were not enclosed and that Cinco had not received any other evidence that the amendments had been accepted by the lessors. The following day, acting pursuant to Cinco’s instructions, with funds supplied by Cinco, American wrote a letter to Citizens enclosing a cashier’s check payable to Citizens in the sum of $30,000.00, together with a copy of the letter agreement relating to the assignment of the oil and gas lease. The assignment was not returned. Omitting the formal parts, the letter stated:

“Enclosed is a Cashier’s Check for payment of your site draft dated November 16, 1973 payable to Mr. Paul B. Good-game and Mr. S. Harry Bergman pursuant to article eight of the letter agreement dated November 9, 1973 between Mr. Goodgame, Mr. Bergman and Cinco Exploration Company (copy enclosed). Your payment is contingent upon performance of all other articles of the letter agreement and will constitute an unreserved acceptance of the lease assignment upon performance of all articles in the subject letter agreement, including, but not limited to the execution of the lease amendments A and B indicated in article four of the letter.”

Upon receipt of the letter and cashier’s check Citizens inquired of Bergman whether he had done everything he should do; upon an affirmative answer, Citizens deposited the $30,000.00 to the account of Good-game and Bergman. Thereafter, on. January 18, 1974, American’s attorney wrote Citizens stating that it had been advised by Cinco that the provisions of the agreement had not been performed by Bergman and Goodgame. American’s attorney returned the assignment executed by Bergman and Goodgame and demanded return of the $30,000.00 to American. When Citizens refused, Cinco instituted the present suit against Citizens on March 27, 1974.

Appellant seeks a reversal of the summary judgment on the ground the Citizens’ summary judgment proof fails to establish that no material issue of disputed fact remained to be determined by the court or jury.

A summary judgment is appropriate only if the summary judgment record establishes a right thereto as a matter of law. Thus, it is well established that a defendant moving for a summary judgment assumes the negative burden of showing as a matter of law that the plaintiff had no cause of action against him. Gaddis v. Smith, 417 S.W.2d 577, 582 (Tex.1967); Neigut v. McFadden, 257 S.W.2d 864, 868 (Tex. Civ.App. — El Paso 1953, writ ref’d n. r. e.). Where a summary judgment is granted upon the motion of the defendant, as here, the question is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex. 1970).

Cinco contends that when Citizens accepted the $30,000.00 cashier’s check and undertook disbursement in accordance with American’s letter of transmittal, Citizens became the agent of Cinco as a matter of law. Based on this premise, Cinco contends that as its agent, Citizens had a duty to follow the instructions contained in American’s letter of November 23, 1973. Cinco argues that since the undisputed summary judgment proof shows that Citizens failed to require Bergman and Goodgame to furnish the lease amendments or satisfactory evidence that the amendments were acceptable to the lessors, Citizens breached its duty as agent, and thus became liable to Cinco as a matter of law. Cinco further contends that the summary judgment proof raised certain fact issues which could only be determined upon a trial. Consequently, Cinco urges that the court erred in granting a summary judgment in favor of Citizens.

Citizens undertakes to uphold the summary judgment on the ground that no agency relationship existed between it and Cinco and therefore it owed no duty and breached no duty to Cinco. Alternatively, Citizens argues that if it owed a duty the summary judgment proof conclusively shows it discharged its obligation to Cinco.

Generally speaking a delivery of money or property to a bank for application to a defined purpose does not constitute a “special deposit” as that term is usually employed, but ordinarily it partakes of the nature of a special deposit in that the title to the thing remains in the depositor and the bank becomes either an agent, bailee or trustee of the depositor, depending upon the agreement of the parties. 9 C.J.S. Banks and Banking § 275, p. 570; Hudnall v. Tyler Bank and Trust Co., 458 S.W.2d 183 (Tex.1970); Shaw v. McCord, 18 S.W.2d 200 (Tex.Civ.App. — Eastland 1929, no writ); First National Bank of Ranger v. Price, 262 S.W. 797 (Tex.Civ.App. — El Paso 1924, no writ); McBride v. American Ry & Lighting Co., 60 Tex.Civ.App. 226, 127 S.W. 229 (1910, no writ). Where a depositor makes a deposit for a special purpose, he may direct the manner in which the funds are to be disbursed by the bank and if the bank does not refuse the deposit, its consent to handle the funds in such manner will be implied as a matter of law. 10 Am.Jur.2d Banks, sec. 342, p. 306; City State Bank v. National Bank of Commerce, 261 S.W.2d 749 (Tex.Civ.App. — Fort Worth 1953, writ ref’d n. r. e.). However, if the agreement of the bank is to be implied by its acceptance of a deposit accompanied by written limitations imposed by the depositor, the writing should set forth clearly what the bank is required to do. Citizens National Bank of Dallas v. Hill, 505 S.W.2d 246 (Tex.1974).

In the instant case, it is without dispute that Citizens accepted Cinco’s funds and disbursed the same to Bergman and Goodgame. Therefore, Citizens will be held to have impliedly consented to Cinco’s proposal as set forth in American’s letter of November 23, 1973. Thus, the rights, duties and obligations of the parties are made to turn upon what was intended by American’s letter of November 23, 1973. The question of whether the letter was insufficient to create a duty on the part of Citizens, or if it did, whether Citizens discharged its duty, as it contends, will depend upon the interpretation to be accorded the agreement. As we construe it, American’s letter is subject to more than one interpretation. For instance, the letter could be interpreted as meaning that the $30,000.00 delivered to Citizens amounted to a conditional payment, conditioned on Goodgame’s and Bergman’s furnishing evidence satisfactory to Cinco that the lease amendments had been accepted by the lessor, and meant that Citizens was not to disburse the funds until that contingency occurred. Additionally it could be interpreted as meaning that Cinco was simply attempting to reserve the right to have the $30,000.00 returned to it should it never receive satisfactory evidence that the amendments had been accepted by the lessor, rather than actually instructing Citizens not to pay out the $30,000.00 to Bergman until the stated contingency occurred. On the other hand, since American’s letter recited that it was in payment of the draft and did not specifically say that Citizens was not to disburse the funds until Cinco notified Citizens that it had received satisfactory evidence that the lessors had assented to the lease amendments, the letter could be construed to mean that while Cinco still expected Bergman and Good-game to fulfill their obligation, Cinco did not intend that failure to perform this obligation would prevent consummation of the contract. Further, under any construction, American’s letter does not make it clear as to whether Citizens or Cinco was to be the final arbiter of whether there was satisfactory proof that the lessor had assented to the lease amendments. Consequently, we think the letter of November 23,1973, made the basis of the agreement between Citizens and Cinco is ambiguous.

It is true that the interpretation of a written instrument is a question of law for the court to determine. City of Pinehurst v. Spooner Add’n Water Co., 432 S.W.2d 515 (Tex.1968); Pletz v. Christian Herald Association, 486 F.2d 94 (5th Cir.1973). The court, however, may, upon ex amining the writing, conclude that it is ambiguous and thus allow parol evidence in order to determine the underlying intent of the parties. Trinity Universal Ins. Co. v. Ponsford Bros., 423 S.W.2d 571 (Tex.1968). Ambiguous intent is a fact issue which must be determined by the trier of the fact. Skelly Oil Co. v. Ancher, 163 Tex. 336, 356 S.W.2d 774 (1962); Ellisor v. Kennedy, 128 S.W.2d 842, 844 (Tex.Civ.App. — Galveston 1939, writ ref’d). The record shows that both sides considered the agreement ambiguous in that Cinco interprets it as imposing a duty on Citizens while Citizens denies that the writing created any duty on it.

In a summary judgment proceeding the rule is that where there is a question relating to the true meaning of an ambiguous writing, summary judgment is improper. Martin v. First State Bank, Memphis, 490 S.W.2d 208 (Tex.Civ.App. — Amarillo 1973, no writ); Robert v. E. C. Milstead Ranching, Inc., 469 S.W.2d 429 (Tex.Civ.App. — Beaumont 1971, writ ref’d n. r. e.); Chapa v. Benavides Mili & Gin Co., 420 S.W.2d 464 (Tex.Civ.App. — San Antonio 1967, writ ref’d n. r. e.); Tinnin v. Crook, 333 S.W.2d 617 (Tex.Civ.App. — El Paso 1960, writ ref’d n. r. e.).

A summary judgment may be granted and if granted should be affirmed only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corporation, supra. The burden of establishing the absence of a genuine issue of material fact is on the movant. Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233 (1956); Brooks v. Hale, 457 S.W.2d 159 (Tex.Civ.App. — Tyler 1970, writ ref’d n. r. e.). In the instant ease, the summary judgment proof offered by Citizens fails to establish conclusively what the parties intended by their writing and therefore a summary judgment cannot be sustained.

Citizens argues that the judgment may be sustained on the theory that Citizens was precluded from acting as a dual agent for both Cinco and Citizens. Consequently, Citizens takes the position that its only duty was to Goodgame and Bergman and that its agreement, if any, to act as Cinco’s agent was void per se and therefore it owed no duty to Cinco. We are not in accord with this proposition.

There is nothing in the Texas Business and Commerce Code prohibiting a collecting bank from acting both as the agent of the drawer and the drawee. The general rule at common law is that an agent cannot act as such for both parties to the same transaction where their interests are adverse or conflicting. Cunningham v. Price, 253 S.W. 337 (Tex.Civ.App. — San Antonio 1923, writ dism’d); 3 C.J.S. Agency § 277, p. 49. This rule, however, does not enable a party who has agreed to act as agent for both parties to shield himself from liability to one of his principals by setting up his agency for the other, for, having assumed to act as a dual agent he owes both the same duty of care, loyalty and diligence. 3 C.J.S. Agency § 277, p. 52; Hampton Roads Carriers v. Boston Insurance Co., 150 F.Supp. 338, 342, 343 (D.Md.1957). The defense of dual agency is available only by a principal who has been injured as a result of the dual agency.

Cinco urges by its second point that the trial court erred in refusing to grant its motion for summary judgment. We do not agree.

In view of the unresolved material fact issue as to the intent of the parties, neither party is entitled to a summary judgment.

Accordingly, the judgment is reversed and the cause is remanded for trial on the merits.

McKAY, J., not participating.

      . Citizens also filed a cross action against American but dismissed the same prior to judgment.

      . The pertinent provisions of the letter agreement are as follows:
      “2. Goodgame and Bergman agree to assign to Cinco Exploration Company the lease described in Article 1 of this agreement, * * *.
      “3. Messrs. Goodgame and Bergman will exercise their best efforts on or before Nov. 18, 1973, to obtain full execution of the amendments shown as Exhibits ‘A’ and ‘B’ of this agreement and made a part hereof, to an Oil, Gas and Liquid Hydrocarbon Lease.
      “4. Upon delivery of the assignment referred to in Article 2 of this agreement, and upon the receipt of satisfactory evidence by Cinco Exploration Company of acceptance by the Cameron Minerals Group of the lease amendments shown as Exhibit ‘A’ and ‘B’ of this agreement, Cinco shall pay to Paul B. Goodgame and S. Harry Bergman, jointly, the cash sum of $30,000.00.
      “8. Notwithstanding anything to the contrary, this agreement shall terminate without prejudice to either party and be of no further force and effect if for any reason the cash sum of $30,000.00 called for under Article 4 of this agreement is not paid on or before November 18, 1973.”


text:
    Carol Lynn McINTYRE (formerly Carol Lynn McFarland), Appellant, v. Bill Thomas McFARLAND, Appellee.
    No. 881.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 13, 1975.

      Frank B. Murchison, Paxton, Whitaker & Parsons, James N. Parsons, III, Palestine, for appellant.
    R. E. Swift, Palestine, for appellee.
   MOORE, Justice.

This is an appeal from what purports to be an agreed judgment.

On October 18, 1974, appellant, Carol Lynn McFarland McIntyre, filed a contempt motion seeking to have appellee, Bill Thomas McFarland, held in contempt for failure to pay child support, and asking for an increase of such child support. Appellee answered and filed a cross-motion for contempt for failure to allow reasonable visitation rights and additionally requested an expansion of his visitation rights. The suit was consolidated with one filed by appel-lee’s parents seeking visitation rights as grandparents and the consolidated case was set for a January 17, 1975, hearing.

When the case was called for trial, all the parties appeared and announced ready and then with the court’s permission retired to a jury room for the purpose of discussing a settlement. Later the parties returned to the courtroom and announced to the trial judge that a settlement agreement had been reached. The terms of the settlement agreement were orally stated to the judge in open court by the attorneys. It is undisputed that the court reporter was not present and no record was made of the agreement of the parties. It is also without dispute that the settlement agreement was not reduced to writing and filed with the clerk as part of the record. Sometime later appellee’s attorney sent a copy of the proposed judgment to appellant’s attorney who refused to sign it because it did not accurately reflect his version of the prior oral settlement.

Thereafter, on April 25, 1975, appellee filed a motion for judgment. A hearing was held on May 19, 1975, at which appellee and his parents testified that the proposed judgment accurately reflected the prior oral settlement agreed to by the parties on January 17, 1975. Appellant offered no testimony at the hearing, but her attorney indicated to the judge that the proposed judgment did not accurately reflect the prior oral settlement and thus appellant made it known that she would not consent to the court’s entry of judgment. After the hearing the judge granted appellee’s motion for judgment and entered the judgment proposed by appellee which recites that the judgment was rendered January 17, 1975, the date the parties announced their settlement agreement to the court. Appellant excepted to its entry and perfected this appeal.

Appellant seeks a reversal contending that the trial court erred in rendering judgment on a purported agreement between the parties because the agreement was not in writing nor made in open court and entered of record as required by Rule 11, T.R.C.P. We sustain the contention and reverse and remand the cause.

Rule 11, Texas Rules of Civil Procedure, provides:

“No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”

To constitute a binding agreement for judgment under Rule 11, the agreement must be in writing, signed and filed with the papers as part of the record, or its terms must be announced in open court and entered of record. Behrens v. Behrens, 186 S.W.2d 697, 699 (Tex.Civ.App.-Austin 1945, no writ). It is apparent from the record that at the time the trial judge rendered the judgment in question, the proposed settlement agreement of the parties had neither been reduced to writing and filed with the papers as part of the record, nor was it made in open court and entered of record. The fact that the parties announced in open court that they had reached an agreement, and outlined the terms of the agreement with the trial judge, was not sufficient to support the judgment entered. Cureton v. Robbins, 319 S.W.2d 735, 737 (Tex.Civ.App.-San Antonio 1958, no writ). It is well settled that until all the terms of a judgment have been definitely agreed upon by all the parties and those terms are either reduced to writing, signed and made a part of the record or made in open court and entered of record, the court is not authorized to render a judgment by agreement. Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871, 873 (Tex.Comm.App.1939, opinion adopted); Owen v. Finigan, 381 S.W.2d 578, 579 (Tex.Civ.App.-Eastland 1964, writ ref’d n. r. e.). Since the procedure required by Rule 11 was not complied with, the trial judge was without authority to render judgment.

Accordingly, the judgment of the trial court is reversed and the cause is remanded.