author: PER CURIAM.

text:
    PLAINS COTTON COOPERATIVE ASSOCIATION, Appellant, v. Jack WOLF, James C. Barr and David Barr, Appellees.
    No. 8746.
    Court of Civil Appeals of Texas, Amarillo.
    June 30, 1977.
    Rehearing Denied July 25, 1977.

      J. R. Blumrosen, Myrtle D. McDonald, Lubbock, for appellant.
    Brock, Waters & Galey, Lubbock, Weaver & Ferguson, John T. Ferguson, Big Spring, for appellees.
   PER CURIAM.

Each of the plaintiffs, Jack Wolf, James C. Barr and David Barr, brought suit against Plains Cotton Cooperative Association (P.C.C.A.) for rescission of a contract involving the sale and delivery of cotton. By cross-action, P.C.C.A. sought specific performance of each contract. These cases were consolidated and tried to a jury. The verdict was favorable to the plaintiffs, and the trial court rendered judgment in accordance with the verdict. The trial court denied prejudgment interest sought by the plaintiffs on damages awarded pursuant to the jury’s verdict. On appeal, P.C.C.A. has challenged the alleged existence of mutual or unilateral mistakes as a basis for the plaintiffs’ recovery in this case. Also, the plaintiffs appealed and raised a cross point regarding the trial court’s denial of prejudgment interest. We agree with the trial court’s judgment insofar as it is consistent with the jury findings, but we sustain the plaintiffs’ claim for prejudgment interest and reform the judgment accordingly. As reformed, the judgment is affirmed.

All three plaintiffs are cotton farmers residing in Howard County, Texas. Sometime prior to March 7, 1973, each had discussions with Alvin Hill, the operator of the Vincent Gin Company in Vincent, Texas, concerning the matter of contracting his cotton crop. Hill acted as P.C.C.A.⅛ agent ⅛ acquiring cotton contracts with farmers in the Vincent area. P.C.C.A. contends that the plaintiffs orally agreed to contract their cotton to P.C.C.A. and Hill prepared written contracts for execution by the farmers.

When the written contracts were presented, the plaintiffs refused to sign them. When it became apparent that the plaintiffs were not going to sign the contracts, both Hill and Bert Kyle, P.C.C.A.’s official in charge of cotton contracting, discussed the contracts with them. Both Hill and Kyle informed the plaintiffs that their alleged prior oral agreements contractually bound them to sell their cotton to P.C.C.A. Hill also informed the plaintiffs that they would be able to withdraw from their contracts by giving written notice at least 30 days before harvesting or delivering their crops. The plaintiffs believed Kyle and Hill and relied upon their representations. After their discussions, the plaintiffs acquiesced and executed the contracts without reading them. Later, when the plaintiffs attempted to withdraw from the contracts by giving written notice, P.C.C.A. insisted upon delivery of their cotton. This suit for rescission was filed on September 18, 1973. On February 8, 1974, P.C.C.A. obtained a temporary injunction requiring the plaintiffs to deliver their cotton according to the written contracts. The plaintiffs complied with the order and delivered the cotton to P.C.C.A. They then amended their petitions and claimed damages for the difference between the market price of their cotton on the date of delivery and the contract price. The price of cotton had significantly increased between the date of the contracts and the delivery date. The case was tried before a jury and issues were submitted on the theories of mutual and unilateral mistakes.

There were jury findings to the effect that the parties were mutually mistaken about two material facts when the contracts were executed. First, the parties believed that the plaintiffs’ oral negotiations with Hill contractually bound them to deliver their cotton to P.C.C.A. Second, the parties believed that the plaintiffs could withdraw and escape their obligations under the contracts by giving written notice 30 days before harvesting or delivering their crops. The trial court rendered judgment for the plaintiffs on the basis of the jury findings, but refused to award prejudgment interest on the damages found in favor of the plaintiffs. P.C.C.A.’s appeal is predicated upon 16 points of error. The plaintiffs have responded by reply points and additionally urge their cross point based upon the court’s denial of prejudgment interest.

P.C.C.A.’s first four points are considered as a group. In those points, P.C.C.A. has relied upon the rule denying rescission of a contract for mutual mistake to plaintiffs who were negligent in causing the mistake. According to P.C.C.A., the trial court erred in failing to submit special issues on the plaintiffs’ negligence. Specifically, P.C. C.A. has charged that the plaintiffs were negligent in not reading the written contracts they signed.

As a general proposition, equity will not act to rescind a contract where the mistake was induced by the negligence of the party seeking rescission. Commercial Standard Insurance Co. v. White, 423 S.W.2d 427 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.). Furthermore, parties to an arms-length transaction are charged with a duty to read what they sign; failure to do so constitutes negligence. Thigpen v. Locke, 363 S.W.2d 247 (Tex.1962); Jones v. Guilford Mortgage Co., 120 S.W.2d 1081 (Tex.Civ.App.—Dallas 1938, no writ).

There is, however, an exception to the above stated rule. Where one party’s false representations induce another party to contract, negligence of the second party cannot be raised to bar relief to him. Labbe v. Corbett, 69 Tex. 503, 6 S.W. 808 (1888); Isenhower v. Bell, 365 S.W.2d 354 (Tex.1963). Thus, failure to read a contract before signing it, although it may constitute negligence, will not bar equitable relief to one who has executed a contract in reliance upon false representations made to him by the other contracting party. Conn v. Hagan, 93 Tex. 334, 55 S.W. 323 (1900); Black v. Mosk Clothes Shop, 99 S.W.2d 343 (Tex.Civ.App.—Galveston 1936, no writ). This equitable rule applies whether rescission is sought under a fraud theory or a mistake theory. Conn v. Hagan, supra. Similarly, the rule operates on innocent as well as intentional misrepresentations. Buchanan v. Burnett, 102 Tex. 492, 119 S.W. 1141 (1909); Citizens Standard Life Insurance Co. v. Muncy, 518 S.W.2d 391 (Tex.Civ.App.—Amarillo 1974, no writ). After reviewing the foregoing authorities, we have concluded that a party’s own negligence should not bar him from seeking equitable relief from a contract executed in reliance upon the false representations of the other contracting party.

P.C.C.A. contends that only misrepresentations as to the contents of a written contract will excuse a party’s negligence in not reading it. We do not agree that the rule is so limited. See, e. g., Labbe v. Corbett, supra; Southern States Life Insurance Company v. Newlon, 398 S.W.2d 622 (Tex.Civ.App.—Eastland 1966, writ ref’d n. r. e.).

It is well settled that when a mistake is one as to antecedent legal rights of the parties, it is considered as one which will justify equitable relief. See, e. g., Columbian Nat. Fire Ins. Co. v. Dixie Co-op Mail Order House, 276 S.W. 219 (Tex.Com.App.1925, jdgmt. adopted); Emery v. Emery, 75 S.W.2d 725 (Tex.Civ.App.—Dallas 1934, writ dism’d). It is our opinion that the jury finding of the mistaken belief that the plaintiffs were already contractually bound to sell their cotton for the contract price was a mistake as to the plaintiffs’ antecedent legal rights. In Emery v. Emery, supra, it was held that equitable relief was justified when there existed a mutual mistake of the parties based upon a mistaken belief that a contract, which was actually enforceable, was unenforceable under the statute of frauds. In Columbian Nat. Fire Ins. Co. v. Dixie Co-op Mail Order House, supra, the Commission of Appeals held that equitable relief was authorized when the insured had a mistaken belief that a tenth policy was in effect, when in fact it had lapsed, which induced the insured to release the insurers under the nine other policies for only 9/io of the loss. In the light of these authorities, this mistaken belief of the plaintiffs that their cotton was already sold for the contract price was one justifying rescission, regardless of any other mistake under which they may have acted.

Another well recognized qualification of the general rule as to the nature of mistakes which will justify relief is that if a mistake has been in any way brought about by misrepresentations of the other party, relief will be authorized. See, e. g., Ramey v. Allison, 64 Tex. 697 (1885); Means v. Limpia Royalties, 115 S.W.2d 468 (Tex.Civ.App.—Fort Worth 1938, writ dism’d). It is further noted that, in the instant case, the plaintiffs were under the belief that they were contractually bound in reliance upon representations made by Alvin Hill and Bert Kyle. The plaintiffs were dealing with representatives of a cooperative marketing association of which the plaintiffs were members, and under these circumstances, they would be inclined to believe and rely upon the representations made by the person in charge of the cotton contracting program for their own marketing organization. From a consideration of the above authorities, it is our opinion that the rule charging one with a duty to read what he signs and precluding him from relief for any mistake resulting from negligent failure to do so does not apply where he has executed the contract in reliance upon a false representation made by the other party.

It is our opinion that the mistakes found in this case which were brought about by misrepresentations of the defendant and its agent, were ample grounds to afford the plaintiffs relief from contracts which they would not have signed except for such mistakes.

For the reasons above stated, we hold that the trial court did not err by refusing to submit issues inquiring as to the plaintiffs’ negligence in executing the contract. Even if such issues had been submitted and answered in P.C.C.A.’s favor, the plaintiffs’ negligence would have constituted no defense to their action for rescission. See Isenhower v. Bell, supra; Smith v. Bifano, 330 S.W.2d 473, 476 (Tex.Civ.App.—Waco 1959, writ ref’d n. r. e.). Points 1-4 are overruled.

P.C.C.A.’s fifth point of error sets forth its argument that the representations made by Alvin Hill to the plaintiffs were not attributable to P.C.C.A. because Hill had no actual or apparent authority to bind P.C. C-A- In response, the plaintiffs have pointed out that P.C.C.A. counterclaimed for specific performance of the written contracts. This action, according to the plaintiffs, constituted a ratification of Hill’s statements and other conduct.

We agree with the plaintiffs that P.C.C.A. should not be allowed to accept the benefits of Hill’s conduct while disavowing the conduct itself. In equity, the conduct of one’s agent must be either repudiated or ratified in toto. Citizens Standard Life Insurance Co. v. Muncy, supra; American Empire Life Insurance Company v. Long, 344 S.W.2d 513 (Tex.Civ.App.—Eastland 1961, writ ref’d n. r. e.); Bucyrus-Erie Co. v. Smith, 168 S.W.2d 896 (Tex.Civ.App.—Waco 1942, no writ).

P.C.C.A., however, has directed our attention to the decisions in Fritz v. Skiles, 107 S.W.2d 768 (Tex.Civ.App.—Eastland 1937, no writ), and Citizens Cotton Oil Co. v. Elliott, 294 S.W. 654 (Tex.Civ.App.—Dallas 1927, no writ). In Fritz, it was held that the principal had not ratified his agent’s unauthorized conduct by suing on a contract obtained as a result of that unauthorized conduct. There, however, the party being charged under the contract had been informed that the agent was authorized only to solicit orders for the principal. Because the agent’s lack of authority to do otherwise had been disclosed to the party charged before he executed the contract, the principal was not bound by the agent’s unauthorized acts. This same rule was applied in the Elliott case, in which the party sued on a note was held to have had notice of the agent’s lack of authority as a matter of law. Consistent with Fritz, the principal’s act in suing on the note was held not to constitute a ratification of the agent’s unauthorized acts because the party charged had notice that the agent only had authority to accept the note — not to modify it.

In the instant case, there has been no showing that the plaintiffs had notice that Hill lacked authority to bind his principal with his representations. Under these circumstances, it is our opinion that the general rule should apply and that P.C. C.A.’s action in filing its cross-action for specific performance constituted a ratification of the actions Hill took to procure the contract. Furthermore, the fact that the written contracts contained recitations disavowing any oral modification of the contract terms (effecting a merger of all terms of the agreement into the writing) should not bar the plaintiffs’ relief. Misrepresentations justifying rescission can be proven despite the presence of such a merger clause. See Dallas Farm Machinery Company v. Reaves, 158 Tex. 1, 307 S.W.2d 233 (1957). Point 5 is overruled.

In its sixth point of error, P.C.C.A. has argued that the parties’ belief that the plaintiffs could withdraw from the contract 30 days prior to harvest was not a mistake which would justify rescission. According to P.C.C.A., only a mutual mistake about a past or present fact material to the contract will justify rescission. Keystone Pipe & Supply Co. v. Kleeden, 299 S.W. 671 (Tex.Civ.App.—Amarillo 1927, no writ).

We recognize that a mutual mistake must be “material and essential to an understanding of the consequences of the agreement.” Simpson v. Simpson, 387 S.W.2d 717, 719 (Tex.Civ.App.—Eastland 1965, no writ); Ferguson v. Mounts, 281 S.W. 616 (Tex.Civ.App.—Amarillo 1926, writ dism’d). In the instant case, both P.C. C.A. (through Hill, its agent for this purpose) and the plaintiffs believed that the plaintiffs would be entitled to withdraw from the contracts after they were executed. In fact, the written contract granted them no such right. This was a material mistake concerning the consequences of the contract. Plaintiffs’ and P.C.C.A.⅛ agent believed that the written contracts would not affect the plaintiffs’ legal rights because they could withdraw from them merely by notifying P.C.C.A., in the proper manner. This mistake went to the essence of the enforcement of legal obligations and was, therefore, significantly material to the contract.

Furthermore, the mistake concerned a present fact. As noted, when the contracts were executed, the belief existed that the plaintiffs would be entitled to withdraw and decline to sell to P.C.C.A. Under the terms of the written contracts (which were before the court) this belief was patently false. Nowhere in the contracts was this right to withdraw granted to the plaintiffs. In our opinion, this is a type of mistake which will justify rescission on the basis of mutual mistake. Point 6 is overruled.

In its seventh point, P.C.C.A. contends that there is no evidence that the parties were mistaken in their belief that the plaintiffs were contractually obligated to sell their cotton to P.C.C.A. before the plaintiffs executed the written contracts. The thrust of P.C.C.A.’s argument is that the parties had an oral contract before the contracts were signed. (The plaintiffs have denied this allegation vigorously.) P.C.C.A. further contends that if such an oral contract did exist before the representations were made to the plaintiffs, the parties were not mistaken in their belief that the plaintiffs had already “contracted” to sell their cotton to P.C.C.A. It is here noted that P.C.C.A. has recognized that oral contracts for goods are unenforceable because of the statute of frauds. Tex.Bus. & Comm.Code Ann. § 2.201 (1968). According to P.C.C.A., however, parties may be “contracted” under an oral contract even though the oral contract is unenforceable.

The plaintiffs have consistently denied ever entering any oral contract or agreement to sell their cotton to P.C.C.A. Thus, the case cannot be removed from the operation of the statute of frauds under Tex.Bus. & Comm.Code Ann. § 2.201(c)(2). That statute provides for enforcement of an oral contract for goods where the party against whom enforcement is sought has judicially admitted making the contract. The plaintiffs have made no such admission in the instant case.

Even assuming that the plaintiffs had agreed orally to sell their cotton to P.C.C.A., P.C.C.A.’s seventh point would not be sustainable. From one perspective, we can agree that the parties could have been “contracted” — in a legal sense — even though their contract violated the statute of frauds. Such a contract would not be void; it would be merely unenforceable. See: Comment 3, § 2.201(a), Tex.Bus. & Comm.Code Ann. When used in its ordinary sense, however, the term “contract” implies enforceable obligations. Foster v. Wagner, 343 S.W.2d 914 (Tex.Civ.App.—El Paso 1961, writ ref’d n. r. e.). Hill and Kyle must be presumed to have used the term in its ordinary sense when they informed the plaintiffs that they had already “contracted” their cotton to P.C.C.A., and it is reasonable to conclude that all parties were thinking in terms of a legally enforceable obligation which could not be avoided without legal consequences. Point 7 is overruled.

In its eighth point of error, P.C. C.A. has contended that rescission on the grounds of unilateral mistake is not available to a party unless he shows that the mistake was not due to his own negligence. James T. Taylor, etc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371 (1960). As we construe the jury findings, however, both mistakes involved in this case were mutual mistakes. According to its answer to special issue 1, all of the plaintiffs and either P.C.C.A. or Hill or both of them believed the purported facts later determined to be mistakes. We have already detailed our reasons for holding that P.C. C.A. was represented by Hill in the transaction. Under this finding of mutual mistake, rescission would have been appropriate regardless of the jury’s findings on unilateral mistake.

The jury findings on unilateral mistake, however, were favorable to the plaintiffs and would support rescission on that ground. The jury found that all three plaintiffs believed they could escape the contract they signed by giving 30 days notice to P.C.C.A. This belief was induced by Hill, P.C.C.A.’s agent for this purpose. As explained in the discussion under points 1-4, negligence is no defense to an action for rescission because of a mistake where the mistake was induced by false representations. See, e. g., Labbe v. Corbett, 69 Tex. 503, 6 S.W. 808 (1888). Point 8 is overruled.

P.C.C.A., in its ninth point, has argued that judgment based upon unilateral mistake was not proper because the jury found no fraud or inequitable conduct by P.C.C.A. Assuming that the plaintiffs’ belief that they could escape their obligation upon 30 days’ notice can be regarded as a unilateral mistake, P.C.C.A. should not prevail on this point. The jury found that Hill, P.C.C.A.’s agent, induced the plaintiffs to contract by telling them they could escape their obligation by giving 30 days’ notice. P.C.C.A. has complained that no special issue was submitted which inquired into the falseness of the representation. The contract contained no such escape clause, however, and, in our opinion, the matter was not issuable. The plaintiffs had no right under the contract to escape their obligations by giving notice of their desire to do so, and Hill’s representations to the contrary were false as a matter of law. Point 9 is overruled.

In points 10, 11 and 12, P.C.C.A. has attacked the jury’s finding that the parties’ mistake as to the plaintiffs’ ability to withdraw from the contracts was material to those contracts is supported by no evidence or factually insufficient evidence and that the finding is against the great weight and preponderance of the evidence. The record reveals that Hill believed the plaintiffs could withdraw from their contracts upon 30 days’ notice and that he communicated his belief to the plaintiffs. All three plaintiffs testified that they would not have executed the contracts but for their belief in the 30-day withdrawal privilege. We have concluded that the jury’s finding that the mistake was material to the contract is supported by ample evidence. Points 10-12 are overruled.

P.C.C.A., in its points 13-15, has urged that the jury’s finding that the parties relied on the truth of their belief in the 30-day escape privilege is supported by no evidence, insufficient evidence and is against the great weight and preponderance of the evidence. The plaintiffs testified that they relied on their belief in the 30-day withdrawal privilege. The jury’s finding is consistent with their testimony. Also, there is ample evidence in the record that Alvin Hill mistakenly believed that the plaintiffs could withdraw from the contracts by giving written notice 30 days before harvest. From a review of the record, it is obvious that the jury based its finding of mutual mistake on the matter of the withdrawal privilege from such evidence concerning the plaintiffs’ as well as Hill’s reliance (while acting as P.C.C.A.’s agent) on such mistaken belief. Points 13-15 are overruled.

We turn now to the plaintiffs’ cross point wherein they contend that the trial court erred in denying them prejudgment interest. Judgment was rendered for the difference between the market price of the cotton on the dates of delivery and the contract price the plaintiffs received. The plaintiffs have argued that prejudgment interest is recoverable on this amount because the damages were fixed and determinable as of a specified date. In response, the defendants have argued that the damages were unliquidated in nature and therefore not recoverable.

In our opinion, prejudgment interest was recoverable as an item of damage. We recognize that under certain circumstances, prejudgment interest is not allowable on unliquidated claims. See, e. g., Winandy Greenhouse Const. v. Graham Whsle Floral, 456 S.W.2d 470 (Tex.Civ.App.—Fort Worth 1970, no writ). Nonetheless, Texas law does allow prejudgment interest as damages upon unliquidated demands so long as the principal damages are determinable and established at a definite time by either rules of evidence or known standards of value. Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83 (1955); Laredo Hides Co., Inc. v. H & H Meat Products Co., Inc., 513 S.W.2d 210 (Tex.Civ.App.— Corpus Christi 1974, writ ref’d n. r. e.). McDaniel v. Tucker, 520 S.W.2d 543 (Tex.Civ.App.—Corpus Christi 1975, no writ); City of Austin v. Cotten, 493 S.W.2d 580 (Tex.Civ.App.—Austin 1973), rev’d on other grounds, 509 S.W.2d 554 (Tex.1974). It has been established that prejudgment interest is properly awardable if the measure of recovery or claim, and not necessarily the amount of damages, is determinable at the time of injury. Tennell v. Esteve Cotton Co., 546 S.W.2d 346 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.). Also, see Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93, 103 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.).

In the case before us, the principal damages can be determined by reference to a fixed date (date of delivery) and definite values (market value of the cotton and contract price). This being so, interest at the rate of 6% per annum should have been awarded from the time of the injury and added to the amount of damages awarded by the trial court, McDaniel v. Tucker, supra. For this reason, we sustain the plaintiffs’ cross point and reform the trial court’s judgment, by adding to the damages calculated from the jury’s verdict, the following sums to the award of each of the respective parties: Jack Wolf is entitled to interest at the rate of 6% per annum on $67,190.68 from February 11, 1974 to March 15, 1976, or the additional award of $8,416.48; James Barr is entitled to interest at 6% from February 12, 1974 to March 15, 1976 on $100,-742.40, or the additional award of $12,-602.44; and David Barr is entitled to interest at 6% on $50,959.66 from February 11, 1974 to March 15, 1976, or the additional award of $6,383.32. Interest on the total award (including the additional prejudgment interest) for each of the respective plaintiffs shall bear interest from the date of judgment at the rate of 9% per annum until paid. V.A.C.S. art. 5069-1.05 (Supp. 1976). Accordingly, the judgment of the trial court, as reformed, is affirmed.

ELLIS, C. J., not participating.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    GENERAL TELEPHONE COMPANY OF THE SOUTHWEST, Appellant, v. CITY OF POINT COMFORT, Texas, Appellee.
    No. 1173.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 30, 1977.

      Hubert M. Preston, San Angelo, for appellant.
    Tom A. Garner, Jr., Rhodes, Garner & Roberts, Port Lavaca, for appellee.
   OPINION

YOUNG, Justice.

In this telephone rate case General Telephone Company of the Southwest brings this appeal from a judgment granting a temporary injunction favorable to the City of Point Comfort. The injunction prohibits the Company from increasing the rate schedule established by the Point Comfort City Council on April 22, 1975.

On January 1, 1975, the Company attempted to increase rates through the City Council of Point Comfort. Whereupon the City sought a temporary injunction to stop the rate increase by enforcing the previous rate ordinance. On February 20, 1975, the City’s request for injunction was granted. Following this dispute the City granted the Company a rate increase by ordinance passed April 22, 1975.

In December of that same year the Company made a new request for a rate increase. Then the City turned this request over to a Citizens Advisory Committee in January of 1976. After seven to eight months of review the Committee recommended an increase in the rate schedule. The City, however, rejected these suggestions and wrote a letter to the Company proposing a new rate schedule in August of 1976. These new suggestions, although different from the Committee’s suggestions, were essentially the same when total dollars were compared. On August 16, 1976, the Company notified the City that it was increasing the rates for Point Comfort and that the City had no authority to regulate rates because no contract existed between the City and Company giving the City such authority. On August 30, 1976, the City sought another temporary injunction to bar this increase and to enforce the rate schedule of April 22, 1975. After a trial to the court without a jury on September 28,1976, this injunction was granted on October 20, 1976. It is from this order granting a temporary injunction that the Company has perfected its appeal.

On November 5,1953, the City had granted the original franchise right to the Company to provide telephone service to Point Comfort. The original service to the City did not provide for extended area service. On January 5,1954, May 25,1958 and April 10, 1973, the Company had sought and had received rate increases from the City.

In May of 1970, the Company instituted nonoptional extended area service for Point Comfort, Port Lavaca, Seadrift and Port O’Connor. Prior to this time, and again in 1973, the Company sought and received the City’s approval for all rate increases. In January of 1975, the Company for the first time attempted a rate increase without the City’s approval. As noted previously, this action was enjoined but the City nevertheless granted an increase on April 22, 1975. The Company accepted this increase until December of 1975 when it sought another increase. After an eight month delay and after the City’s rejection of the Company’s request and a compromise offer, the Company rejected the authority of the City to regulate rates. Whereupon the Company established a new schedule of rates to be effective on August 16, 1976. This action by the Company precipitated the City’s filing the suit we have before us. After a hearing the trial court ordered a writ of injunction to issue providing in part as follows:

“. . . pending final hearing and determination of this cause enjoining General Telephone Company of the Southwest, Defendant herein, from violating Plaintiff’s current telephone rate ordinance dated April 22, 1975, and from charging telephone rates to the subscribers of Defendant, General Telephone Company of the Southwest’s Point Comfort Telephone Exchange which are in excess of the rates provided in said current telephone rate ordinance, or in any way, violating the terms of said current City telephone ordinance dated April 22, 1975. ...”

In its points 2 and 3, the Company asserts error by the trial court in its action of granting the City’s request for temporary injunction because: 2) as of September 1, 1976, the Texas Public Utility Commission has exclusive original jurisdiction over telephone rates; 3) the City had lost any authority it alleged should be protected since the Public Utility Commission assumed full and exclusive authority over telephone utilities on September 1, 1976. The resolution of these two points resolves the entire case. We, therefore, do not deem it necessary to consider appellant’s points 1 and 4.

The Public Utility Regulatory Act is codified as Tex.Rev.Civ.Stat.Ann. art. 1446c (1976-1977 Supp.). Some of the provisions of the Act we deem appropriate to our consideration of the case before us are as follows:

“Sec. 18. Subject to the limitations imposed in this Act, and for the purpose of regulating rates, operations, and services so that such rates may be just, fair, and reasonable, and the services adequate and efficient, the commission shall have exclusive original jurisdiction over the business and property of all tele-communica-tions utilities in this state.
* * ⅛ * sfc
Sec. 87.(b) The regulatory authority shall assume jurisdiction over rates and service of public utilities on September 1, 1976.” (Emphasis supplied).

The Court pointed out in Southwestern Bell Telephone Company v. City of Kountze, 543 S.W.2d 871, 874 (Tex.Civ.App.—Beaumont 1976, no writ) the following:

“Using the broadest possible language, the Legislature conferred exclusive original jurisdiction upon the Public Utilities Commission . . . over the business and property of all telecommunications utilities for the purpose of regulating ‘rates, operations, and services.’ ”

In Kountze, the closing of a business office was held to fall within “services” category as defined in the Act. Likewise we hold that the problem of the instant case of whether to maintain rates at a level set by the City or to raise rates to a level requested by the Company falls within the “regulating rates” category as defined by the Act. And like the question of closing a business office in Kountze, the Act vests in the Commission the exclusive jurisdiction to determine the question of what rates should be charged in the case before us. And any complaint about the rates charged or to be charged must be made to the Commission.

We further agree with the reasoning in Kountze wherein the Court said:

“. . . In essence, the Act repealed the law giving jurisdiction to the district court and it contained no savings clause; thus, it takes away the right to proceed in a pending case undetermined at the time when it (the Act) becomes effective.. ."

It is clear to us, therefore, that the proper forum to initiate litigation about the question of what rates should be charged by the Company to the subscribers within the City is the Commission.

The City replies to the Company’s contention that the Commission has exclusive jurisdiction in the rate matter before us with these assertions: that this suit was filed August 30, 1976, and the Commission did not obtain exclusive original jurisdiction over telephone rates until September 1, 1976; that this is not a rate making case, but merely a suit to enforce a current City ordinance.

About the filing of the suit before September 1, 1976, the Court in Kountze, had before it a similar contention. Supported by appropriate case authority, the Court in Kountze, pointed out that want of jurisdiction of the subject matter of the suit will arrest a cause at any stage of the proceedings; that if at any time during its progress it becomes apparent that the court has no authority under the law to adjudicate the issues presented, it becomes the duty of the court to dismiss the case. We agree with that reasoning and hold that because the rate setting controversy between the City and the Company was not finally resolved before September 1, 1976, the Commission has now become the only forum to litigate that controversy.

About the City’s contention that this is not a rate making case but an ordinance violation problem, we simply point out again that the City by this suit attempts to keep the telephone rates in Point Comfort the same as set out in the City’s ordinance of April 22, 1975. And the Company attempts to raise the rates to a level it considers “just, fair, and reasonable.” To us, therefore, this controversy is no more than a rate making dispute and the City’s attempt to characterize it as something else is without merit.

Finally, the City in an ancillary contention argues that the Company has accepted benefits conferred upon it by operation of the franchise and rate ordinances that have been in effect since November 5, 1953. The City’s reasons that under the holding of General Telephone Company of Southwest v. Cities Littlefield, 498 S.W.2d 375 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.) this course of conduct by the City and the Company thus established a contractual relationship between the parties; that therefore the City has a contractual right to set rates that has become vested, and that right has not been taken away by the Act. Even if the City be correct that it has a vested contractual right, the Act does not destroy the rights of the City; as we have heretofore noted, it just takes away from the district court the jurisdiction to adjudicate the question and confers that jurisdiction upon the Commission. Southwestern Bell Telephone Company v. City of Kountze, supra. Appellant’s points 2 and 3 are sustained.

All of which brings us to the correct disposition of this appeal in that we have determined that a reversal is appropriate. Again we look to Kountze and the cases therein cited. There it was held that when case becomes moot on appeal, as has the instant case, all previous orders and judgments should be set aside and the cause, not merely the appeal, should be dismissed. See Commissioners Court of Harris County v. Peoples National Utility Company, 545 S.W.2d 47 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ). Therefore, we reverse and set aside all orders of the trial court and dismiss the cause. Costs are divided between the parties equally.

Reversed and Dismissed.

      . This is a type of service which allows subscribers to initiate calls to neighboring communities without toll charges. In the instant case these neighboring communities include Port Lavaca, Port O’Connor and Seadrift.


author: MASSEY, Chief Justice.

text:
    CITY OF AZLE, Texas, and Charles Stewart, et al., Appellants, v. Peggy BATY et al., Appellees.
    No. 17871.
    Court of Civil Appeals of Texas, Fort Worth.
    June 30, 1977.

      Kenneth N. Price, Azle, for City of Azle and Charles Stewart.
    Fred Barker, County Atty., Parker County, Weatherford, for Troy Sessums.
    Charles Baldwin, Fort Worth, for appel-lees.
   OPINION

MASSEY, Chief Justice.

Peggy Baty, Karen Baty, and John Meyers, plaintiffs, brought suit for damages in Tarrant County, Texas, against three defendants, Charles Stewart, individually and as Chief of Police of Azle, Texas, Troy Sessums, individually and as Deputy Sheriff of Parker County, Texas, and the City of Azle, Texas, a municipality.

Each of the defendants separately filed plea of privilege seeking transfer of the case as against him (or it) to the District Court of Parker County. Following a hearing the order of the trial court overruled the pleas of all the defendants. Therefrom all of the defendants appealed.

We affirm the trial court as applied to its ruling on the pleas of all except the defendant Troy Sessums. The order of the trial court overruling the plea of privilege of Troy Sessums is reversed, with the suit of plaintiffs as against him ordered transferred to the District Court of Parker County, Texas.

The following provides explanatory facts considered in our decision: There was issued by a Justice of the Peace of the county of suit a “search and seizure” warrant during the early hours of the morning of August 22, 1976, following presentation of the joint affidavit of Sessums and Stewart. The search warrant was for the “illegal Narcotic Drug to wit: Marijuana believed unlawfully possessed by Peggy Beaty, Karen Beaty and John Meyers and secreted on the premises of 1105 Jarvis Street, in the City of Azle, County of Tarrant, State of Texas.”

Stewart, the Chief of Police for the City of Azle, accompanied and directed deputies under his command to 1105 Jarvis Street in Azle, in Tarrant County, the residence of all the plaintiffs, and entry was made upon said premises and into the residence by authority of the warrant.

It is not a matter of dispute but that marijuana was discovered pursuant to the execution of the warrant. All three of the plaintiffs were taken into custody. The two female plaintiffs were taken to the Police Station of the City of Azle, and, without having been taken before a magis-. trate of Tarrant County (in which the warrant was executed and their arrests accomplished) were removed from the county without having been charged. Actually they were released on bond from the jail in Parker County the afternoon of the same or the day following.

Defendant Sessums was not shown to have ever entered upon the premises or to have participated in the search of the plaintiffs’ premises, in the arrest of any plaintiff, in the transport of either female plaintiff to Parker County, or with their lodgment in the jail in such county. The only act shown as applied to Sessums was that he signed the affidavit which supported the action of the Justice of the Peace in issuing the warrant. He was present at the scene.

It is in the way and manner of the conduct of the search of plaintiffs’ premises, the breakage of at least one item of the plaintiffs’ property thereat, and the disarray of clothing, etc., tearing other property, etc., in no way necessary and essential to the execution of the warrant, that plaintiffs made complaint by suit and in the body of their controverting affidavits to the several pleas of privilege. Also, their complaint is because of the removal of a certain radio, a pistol, a rifle, a shotgun, and ammunition by Stewart or agents under his direction and control as an incident to action which was authorized under the warrant. Also, there is the further complaint of the female plaintiffs that there was denial of their civil rights in their removal to a distant county without having been taken before a magistrate of the county of their arrest, coupled with their failure to be charged and necessity to make bond in order to be released from custody in such distant county.

There being no findings or conclusions of the trial court upon which the several pleas of privilege were denied, we necessarily must consider all possible theories upon which the denial by the trial court might find support.

We find that individual actions of the defendant Stewart amounted to a trespass under the provisions of V.A.T.S. Art. 1995, “Venue”, § 9, “Crime or trespass”, both as applied to plaintiffs’ property and as applied to the persons of the female plaintiffs.

We have described to the extent necessary the events on the occasion of the search and seizure. Occasion for the confiscation and removal of physical property from plaintiffs’ premises not prescribed by the warrant and the damage and disarray of plaintiffs’ physical property thereat constituted trespass on the part of the defendant Stewart. See 64 Tex.Jur.2d, “Words and Phrases”, the term “Trespass”.

There was further trespass in the way and and manner the female defendants were handled after having been taken into custody. By Vernon’s Ann.Crim.Code, Art. 14.06, “Must take offender before magistrate”, and Art. 15.17, “Duties of arresting officer and magistrate”, is prescribed the right of one who has been taken into custody to be without delay taken before a magistrate of the county in which he has been arrested. Stewart was the arresting officer and he was by law charged with and responsible for the discharge of duties in said respect. Vernon’s Ann.Crim.Code, Art. 15.-16, “How warrant is executed”. In Stewart’s dereliction of duty there was trespass in the deprivation of rights which were the entitlement of the two female plaintiffs. 42 U.S.C.A. § 1983, “Civil action for deprivation of rights”.

The City of Azle was domiciled in Tarrant County, Texas, as of the time of the search and seizure and arrests and of this we are entitled to take judicial notice; but even were that not the case the evidence presented on trial established the fact. Tarrant County being that in which the suit was brought, venue of the case against the City was properly there retained.

There being misconception that there was entitlement for the venue of the case against the City to be retained because Stewart was serving it in the capacity of Chief of Police upon the occasion in question and that because thereof there was an agency relationship on his part for the City of Azle we make further comment. To the extent Stewart might have acted lawfully or properly and non-negligently he would be an agent of the municipality (although privileged in the governmental function), but where his acts might be unlawful, improper or negligent he would have departed the agency relationship and the City would not be his principal. The municipal immunity for Stewart’s actions would for these reasons persist except in instances where there might be an obligation or penalty imposed upon the municipality by law, or where its act of omission constituted a positive invasion of individual rights guaranteed by the Constitution. There was not antecedent direction of Stewart by the governing body. If there had been ratification thereof by the municipality, the rule would be different. It was not shown in this case. On the foregoing see 18 McQuillin, Municipal Corporations, 3rd Ed., Ch. 53, “Municipal Liability for Torts”, § 53.08, “(Character and cause of injury) — Nonfeasance”; 40 Tex.Jur.2d (Part 1), p. 418, “Municipal Corporations”, § 659, “In general; governmental immunity”; 63 C.J.S. p. 308, “Municipal Corporations”, § 903, “Police or Fire Stations, Apparatus, and Appliances”. On a somewhat similar question we had occasion to write in the case of Mayes v. City of Wichita Falls, 403 S.W.2d 852 (Tex.Civ.App.—Fort Worth 1966, writ ref’d n. r. e.).

From what we have written so far there is explanation for our action in sustaining the judgment of the trial court save in relation to plaintiffs’ case against defendant Sessums. We now consider the judgment retaining Sessums as a defendant properly sued in Tarrant County.

Sessums did nothing which entitled retention of venue against him unless it was by his execution of the affidavit upon which the warrant was issued. Of any want of justification for the execution of the affidavit by Sessums there was absolutely no proof. We are committed to the belief, and consequently hold, that no cause of action would arise because one has signed an affidavit resulting in the issuance of a warrant by an authorized magistrate unless the proof is that there was absence of justification. See cases under 26A Texas Digest, “Malicious Prosecution”, § 18 and subdivisions, and § 25 and subdivisions. The evidence produced by plaintiffs on the hearing in the trial court failed to show absence of justification.

The only other possibility for retention of venue would be by the provisions of V.A.T.S. Art. 1995, “Venue”, § 29a, “Two or more defendants”. Noticed from what has already been said is that a cause of action was proved against the defendant Stewart, with Stewart a non-resident as was Ses-sums. Under this exception to the venue statute Sessums must be shown to be a “necessary party” to obtaining that relief to which plaintiffs claim entitlement under the facts of the case as against Stewart. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774 (Tex.1944); McDonald, Texas Civil Practice, 1965 rev., p. 547, “Venue”, § 4.36, “Art. 1995 (29a) Necessary Parties”. Here plaintiffs may be accorded the complete relief to which they may be entitled, if any, against the defendant Stewart. Ses-sums would not be a “necessary party” and § 29a is without application.

Judgment at the trial court retaining venue of the cause against all the defendants except Troy Sessums is affirmed. The order of the trial court overruling the plea of privilege of the defendant Troy Sessums is reversed, with order of this court rendered directing transfer of the case as against him to the District Court of Parker County, Texas.


author:
STEPHENSON, Justice.
      KEITH, Justice,

text:
    COASTAL PLAINS DEVELOPMENT CORPORATION et al., Appellants, v. MICREA, INC., Appellee.
    No. 7930.
    Court of Civil Appeals of Texas, Beaumont.
    June 30, 1977.
    Rehearing Denied July 28, 1977.
    L. B. Kee, Angleton, Jack L. Andrus, Pasadena, for appellants.
    Jon Mercer, Houston, for appellee.
   STEPHENSON, Justice.

This is an action for damages for breach of contract. Trial was by jury, and judgment was rendered for plaintiff on the verdict. The parties will be referred to here as they were in the trial court.

Plaintiff, Micrea, Inc., and defendants, Coastal Plains Development Corporation, et al., entered into a written contract dated July 31, 1970. Such contract showed defendants were the owners of a certain 200-acre tract of land in Brazoria County, which it agreed to subdivide as shown by a map. Plaintiff was given an option to purchase the lots in the subdivision and also to conduct a sales program for the sale of the lots. Plaintiff was authorized to sell the lots on a contract of sale basis. The cash down payment for the sale of the lots was to be collected by plaintiff if it did not exceed 20 percent of the selling price; and, if it amounted to more than 20 percent, the excess would be delivered to defendants. It was estimated the 20 percent would cover overhead expenses of plaintiff, and, if it did not, then defendants would pay the deficiency to plaintiff, monthly. Defendants were solely responsible for payment of surveying and engineering costs as well as the cost of road construction and maintenance. The net profits were to be divided equally between plaintiff and defendants, after payment of all expenses incurred in connection with this development, including the cost of the land, not to exceed $800 per acre.

The primary question for determination on this appeal is whether or not plaintiff had to allege and prove it was a licensed real estate broker in order to bring and maintain this cause of action. Tex.Rev.Civ. StatAnn. art. 6573a (1969) (The Real Estate License Act) provided in Section 19, at the time this cause of action arose as follows:

“No person or company may bring or maintain any action for the collection of compensation for the performance in this State of any of the acts set out in subdivision (1) of Section 4 hereof without alleging and proving that the person or company performing the brokerage services was a duly licensed real estate broker or salesman at the time the alleged services were commenced; or was a duly licensed attorney-at-law as exempt from the provisions of this Act by Section 6.”

Subdivision (1) of Section 4 of that Act reads as follows:

“(1) The term ‘Real Estate Broker’ shall mean and include any person who, for another or others and for compensation or with the intention or in the expectation or upon the promise of receiving or collecting compensation:
(a) Sells, exchanges, purchases, rents or leases real estate;
(b) Offers to sell, exchange, purchase, rent or lease real estate;
(c) Negotiates, or offers or attempts or agrees to negotiate the sale, exchange, purchase, rental or leasing of real estate;
(d) Lists or offers or attempts or agrees to list real estate for sale, rental, lease, exchange or trade;
(e) Appraises or offers or attempts or agrees to appraise real estate;
(f) Auctions, or offers or attempts or agrees to auction real estate;
(g) Buys or sells or offers to buy or sell, or otherwise deals in options on real estate;
(h) Collects or offers or attempts or agrees to collect rentals for the use of real estate;
(i) Advertises or holds himself out as being engaged in the business of buying, selling, exchanging, renting or leasing real estate;
(j) Procures or assists in the procuring of prospects, calculated to result in the sale, exchange, leasing or rental of real estate;
(k) Procures or assists in the procuring of properties calculated to result in the sale, exchange, leasing or rental of any business enterprise, or sells, exchanges, purchases, rents, or leases any business enterprise;
(i) Subdivides real estate into two or more parts or tracts which are to be sold, leased, exchanged or rented to others, or for the purpose of erecting buildings for residential or business purposes to be sold, leased, exchanged or rented.”

On September 30, 1970, the written contract was amended to increase the amount of land from 200 acres to 720 acres. On that same date a bank loan was closed in the amount of $180,000, and both plaintiff and defendants signed the note. Development of the property began as agreed, and plaintiff conducted its promotional activities, and defendants conducted their surveying, engineering and construction. Some $200,000 in land was sold under contracts and the down payments retained by plaintiff. However, on October 1, 1970, when plaintiff submitted its expense summary, reflecting an excess of some $13,000 in expenses over receipts, this was not paid. The road building stopped, and later this suit was filed. The evidence shows that Jack Adler, plaintiff’s president, was a licensed real estate broker throughout 1970, and that such a license was issued to plaintiff September 2, 1970.

The jury made these findings: Defendants breached the contract by failing to pay the expense money; that plaintiff suffered a loss of profits under the contract in the amount of $109,695; that defendants suffered no loss as a result of the plaintiff’s acts. In the judgment plaintiff recovered the $109,695, plus tne stipulated amount of expense money mentioned above.

From a study of the record as a whole, we have come to the conclusion that the relation between plaintiff and defendants is that of a joint venture. Even though it is written in the last paragraph of the contract that neither a partnership nor a joint venture should be constituted, the well recognized rule of law is that the relationship is what the terms make them and not what they call themselves. See Neece v. A.A.A. Realty Co., 159 Tex. 403, 322 S.W.2d 597, 600 (1959).

Justice Keith, of this court, has written two excellent opinions on this subject, Lane v. Phillips, 509 S.W.2d 894 (Tex.Civ.App.— Beaumont 1974, writ ref'd n. r. e.), and Ives v. Watson, 521 S.W.2d 930 (Tex.Civ.App.— Beaumont 1975, writ ref’d n. r. e.). Reference is here made to those two opinions as to what it takes to constitute a joint venture. The contract before us creates a relationship in the nature of a partnership in the joint prosecution of a particular transaction for mutual profit. The necessary ingredients, a community of interest and a participation in the profits, both exist. As stated more in detail above, defendants were obligated to take care of the surveying, engineering, construction, and maintenance, and plaintiff, the promotion and sale. After the deduction of all expense, including the cost of the land, the net profits were to have been divided equally.

The agreement between these parties provides for the division of profits but makes no mention as to losses. We are well aware that the general rule is for an agreement to constitute a partnership or joint venture the parties must share in the profits and the losses. The agreement before us does not provide that plaintiff will not share the losses, but is entirely silent as to the losses. We hold that plaintiff would have been liable for one-half of the losses as a matter of law, by reason of the fact that under this agreement the parties had become joint adventurers. We quote from Thompson v. Schmitt, 115 Tex. 53, 274 S.W. 554, 560 (1925), quoting Chief Justice Pleas-ants in Wells v. MacKay Telegraph-Cable Co., 239 S.W. 1001, 1006 (Tex.Civ.App.—Galveston 1922, no writ), as follows:

“ ‘Whatever may be the rule in other jurisdictions, it seems to be well settled by the decisions of our courts that, when two or more persons associate themselves together for the purpose of carrying on a business enterprise for their mutual profit, the persons so associated are jointly and severally responsible for the debts incurred in the conduct of such business unless such business association is organized as a limited partnership or a corporation under our statute providing for such organizations, or specially contracts with those with whom the association deals that only the funds and property of the association shall be held liable.’ ”

The fact that this was a joint venture removes this transaction from the requirement of Sections 4 and 19 set out above. Clearly, under the Real Estate License Act, a person or company does not have to have a license for selling his or its own land. Subdivision 1 of Section 4 makes it crystal clear that it is only when the listed acts from (a) to (1) are performed “for another or others” that the license is required.

Apparently, this is a case of first impression, and there are no other cases in Texas involving a joint venture. Our position in construing this Act is strengthened by the fact'that the Legislature included Section 6 Subdivision (3) in the Act which exempts anyone acting as an attorney-in-fact under a duly executed power of attorney. It is, therefore, obvious that a person not only can sell his land without a license but may also authorize an attorney-in-fact to do so.

This is not the usual transaction between a landowner and a real estate broker with an agreement to sell the land on a commission basis. This is a transaction in which each party had mutual promises and obligations to carry out, and, at the end, the profits would be divided equally. Plaintiff did not sue for a commission for real estate sold but for breach of contract. Plaintiff recovered its stipulated expenses and its damages for breach of contract. Section 19 does not prohibit the bringing of this cause of action.

AFFIRMED.

KEITH, Justice,

dissenting.

I respectfully dissent.

On page six of the contract between the parties, dated July 31,1970, only the signatures of the parties and this language appear:

“It is expressly understood and agreed that the performance by the respective parties of their respective obligations under the terms of this contract shall not constitute the parties as partners in connection therewith and neither is the performance of this contract by the respective parties to be considered a joint venture, but to the contrary each party shall be solely responsible for the performance of the respective obligations herein contracted to be undertaken by each respective party.”

Ordinarily, as said in Park Cities Corp. v. Byrd, 534 S.W.2d 668, 672 (Tex.1976), the rule followed by the courts is stated in this language:

“The agreement of the parties is to be controlling of our decision and we shall construe and interpret their agreement pursuant to the applicable law of contracts.”

Yet, the majority — in the face of explicit language disavowing any intention to create a joint venture and despite clear language refusing to share losses in the undertaking — has found that a joint venture exists. And, having made this judicial determination of intention, the court has created a vehicle which negates the applicability of the Real Estate Licensing Act to the dealings between the parties. I decline to join in this aberration.

I note only a few of the misgivings I have concerning this holding. Whether or not the relationship of joint venture is created ordinarily depends upon the intention of the parties. Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, 722 (1945). Here, our parties expressly disclaimed any such intention to form the relationship.

The contract in this case did not authorize either party to create any liability to third parties which would have been binding on the other. “The [joint venture] relationship being in the nature of a partnership, losses must be shared as well as profits.” Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 709, 59 A.L.R.2d 1011 (1956).

This record shows, as recounted by the majority opinion: “[W]hen plaintiff [Mi-crea] submitted its expense summary, reflecting an excess of some $13,000 in expenses over receipts, this was not paid.” As every businessman knows and realizes, when you have expenses in excess of receipts, you have a loss. But, Micrea, refusing to recognize a joint venturer status where losses as well as profits are to be shared, sued for all of its loss — $13,000. More, importantly, this court has permitted its recovery of the entire sum against the defendant. Once again, the parties disavowed the joint venture concept by their actions.

Regardless of the perspective from which one views this case, it is clear that Micrea has recovered judgment representing compensation which it claims it would have earned from the sale of defendant’s land; and, admittedly, Micrea was not licensed under the Act. In this dissent, I adopt with approval Justice Stephenson’s language found in Elrod v. Becker, 537 S.W.2d 84, 86 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.):

“Our courts require a strict compliance with the terms of the Real Estate Dealers License Act if a salesman is to use the courts for recovery for his services. Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584 (1960).”

See also, Tex-Co Grain Company v. Happy Wheat Growers, Inc., 542 S.W.2d 934, 936 (Tex.Civ.App.—Amarillo 1976, no writ), and authorities therein cited.

This case, as laid out in the majority opinion, turns on the concept of joint venture, a form of business entity which seems to have escaped mention in the Act itself. But, the new law announced in the opinion does violence to and is contrary to the theory behind the Act and its administration. See A. Amdur, “The Real Estate License Act — Synopsis, Elaboration, and Comments,” 12 S.Tex.L.J. 269, 276, et seq. (1971).

Indeed, as I read the majority opinion, it likely is in conflict with the well-reasoned opinion in Macphee v. Kinder, 523 S.W.2d 509 (Tex.Civ.App.—San Antonio 1975, no writ).

The judgment of the trial court should be reversed and judgment here rendered denying plaintiff any recovery.

      . In his immortal work “Through the Looking-Glass,” Lewis Carroll finds Alice puzzled with Humpty Dumpty’s “unbirthdays.” Being questioned by Alice, Humpty said: “When I use a word, it means just what I choose it to mean— neither more nor less.” But, objected Alice: “The question is, whether you can make words mean so many different things.” To which Humpty replied; “The question is, which is to be master — that’s all.” Do the words mean what the parties said or do they mean what the court has said? Or, more importantly, who is to be the master?


author: STEPHENSON, Justice.

text:
    The STATE of Texas, Appellant, v. Parker McVICKER, Appellee.
    No. 8010.
    Court of Civil Appeals of Texas, Beaumont.
    June 30, 1977.
    Rehearing Denied July 28, 1977.
    Wayne H. Paris, Austin, for appellant.
    Rex Houston, Henderson, for appellee.
   STEPHENSON, Justice.

This is an appeal by a Grievance Committee of the State Bar of Texas (plaintiff) from an order of the trial court suspending defendant, Parker McVicker, from practicing law for a period of six months.

The very brief record before us shows that it was stipulated that defendant failed to timely make and file his income tax return for the calendar year 1972. A judgment of conviction was admitted in evidence, showing defendant plead guilty to the offense of willfully and knowingly failing to make an income tax return for the calendar years 1971 and 1972. The defendant was assessed punishment of one year imprisonment of which he was required to serve a minimum of four months; he was placed on probation for two years and assessed a fine of $5,000 and ordered to pay all taxes, plus penalty and interest. Then, on the question of punishment, it was stipulated below that defendant willfully failed to timely make and file income tax returns for the years 1968, 1969, 1970, and 1971. No other evidence was heard.

Plaintiff’s first point of error is that the trial court erred in not entering an order disbarring defendant. Tex.Rev.Civ.Stat. Ann. art. 320a-l § 6 (1973) provides, in essence, that upon proof of a final conviction of any felony involving moral turpitude “or of any misdemeanor involving the theft, embezzlement, or fraudulent appropriation of money or other property” the district court shall enter an order disbarring him. The crime to which defendant plead guilty is a misdemeanor, and plaintiff argues that it involves theft or fraudulent appropriation of money.

Both sides agree that this precise question has not been passed upon in Texas or in any jurisdiction they have found. Apparently, most statutes in other states provide for disbarment in case of conviction of either a felony or misdemeanor involving moral turpitude and do not specifically name the misdemeanor crimes. Also, the states are pretty evenly divided as to whether the crime to which defendant plead guilty is a misdemeanor involving moral turpitude. See Annotations: “Attorney-Moral Turpitude’ — Tax Offense”, 63 A.L.R.3d 476 (1975); and “Attorneys — Tax Offense as Misconduct”, 63 A.L.R.3d 512 (1975). It is obvious that the Texas Statute is narrower in its coverage than those which do not specify the crime.

It is well established Federal law that a conviction for willful failure to timely file an income tax return does not require proof of an intent to defraud the government. Sansone v. U. S., 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); U. S. v. Fahey, 411 F.2d 1213 (9th Cir.), cert. denied, 396 U.S. 957, 90 S.Ct. 430, 24 L.Ed.2d 422, (1969); U. S. v. Hawk, 497 F.2d 365 (9th Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974); U. S. v. Klee, 494 F.2d 394 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974). See also, U. S. v. Pomponio, 429 U.S. 10, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976); and 26 U.S.C.A. § 7206(1) (1967).

We cannot agree with the construction plaintiff proposes for the Statute in question. The wording is not elastic enough to include the crime of willful failure to file an income tax return within the prescribed crimes, theft, and fraudulent appropriation of money. If the Legislature of the State of Texas had such a crime in mind, it could easily have done a better job of including it. We agree with the trial court that compulsory disbarment was not required upon conviction of the crime in question.

Plaintiff has two other points of error. Plaintiff urges that the trial court erred in failing to find defendant’s conduct was prejudicial to the administration of justice and that the trial court abused its discretion in not assessing a more severe penalty under the facts of this case. These points are overruled.

The term “prejudicial to the administration of justice” is not easily understood, but we have concluded it has no application to the situation before this court. We do not find the trial judge abused his discretion in assessing a term of six months suspension under the facts of this case.

AFFIRMED.


author: CIRE, Justice.

text:
    STATE BAR of Texas, Appellant, v. John W. O’DOWD, Appellee.
    No. 1611.
    Court of Civil Appeals of Texas, 14th Dist.
    July 6, 1977.
    Wayne H. Paris, Asst. Gen. Counsel, State Bar of Texas, Austin, for appellant.
    John W. O’Dowd, Houston, for appellee.
   CIRE, Justice.

This appeal is from a judgment setting aside a formal reprimand administered by the State Bar of Texas.

Appellee John W. O’Dowd filed this suit under article XII, section 16(b) of the State Bar Rules (1973) to set aside a formal reprimand administered by the Grievance Committee of District 4 of the State Bar of Texas. The reprimand stated that O’Dowd was to appear and represent David Myrick, Jr. in a contempt action pending in the Court of Domestic Relations No. 3 of Harris County, but that he failed to appear and did not render any meaningful or worthwhile services in that proceeding. The State Bar answered and brought a cross-claim alleging in two counts that O’Dowd violated the Code of Professional Responsibility, article XII, section 8 of the State Bar Rules. Count one alleged he violated Disciplinary Rule (DR) 6-101(A)(3) and DR 1-102(A)(1), (4), (5), and (6) in that he knowingly and willfully neglected a legal matter entrusted to him. These rules provide:

DR 1-102. Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
* * * * * *
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
DR 6-101. Failing to Act Competently.
(A) A lawyer shall not:
* # # * * *
(3) Willfully or intentionally neglect a legal matter entrusted to him.

The second count averred he violated DR 7-101(A)(2) and DR 1-102(A)(1), (4), (5), and (6) in that he knowingly and willfully neglected to carry out a contract of employment entered into with his client, Myrick, for professional services. Disciplinary Rule 7-101(A) provides:

(A) A lawyer shall not intentionally:
* * * * * *
(2) Fail to carry out a contract of employment entered into with a client for professional services .

The State Bar prayed the court discipline O’Dowd for these breaches of the Code of Professional Responsibility.

Trial was to a jury. Myrick testified that he contacted O’Dowd, his friend and neighbor, in 1974 to represent him in an attempt to have the amount of Myrick’s child support payments lowered. At that time Myr-ick was already represented in other phases of his domestic relations litigation by other counsel. In May or June of 1975, Myrick asked O’Dowd to serve as his “lead” counsel. Myrick’s former wife’s counsel had set a contempt hearing for failure to pay child support for July 11, 1975 and, in June, Myrick asked O’Dowd to represent him at the hearing in an attempt to have the amount of his child support payments reduced.

Myrick further testified that, the week before the hearing, he tried contacting O’Dowd, but was told no one in his office knew his whereabouts. Myrick then contacted another attorney, D. Graham Moore, to represent him at the hearing. Moore agreed to represent Myrick in this matter only if a continuance was granted at the hearing. The continuance was granted because O’Dowd was not available and, in February 1976, with Moore as counsel, the amount of child support was lowered. Myr-ick stated that he wanted the child support payments reduced as soon as possible and that, as a result of O’Dowd’s failure to appear at the July 11 hearing, he suffered $1400 in damages.

O’Dowd testified that he had often given Myrick his opinion and assistance on legal matters. When Myrick asked O’Dowd to serve as his counsel at the July 11 hearing, the contempt motion was the only matter set for the hearing and was Myrick’s primary concern at the time. O’Dowd said they speculated that Myrick’s former wife was to move back to Florida at the end of the summer and would drop the matter. As to this contempt action, O’Dowd testified that he hoped to obtain a postponement from July 11. Shortly before July 11, O’Dowd’s financial problems “started crashing down” on him. Extremely depressed and unable to cope with his problems, he left town and stayed away without contacting even his wife. After some days he called his wife and asked her to have his associate, Schindler, take care of his cases and get them reset. Schindler then, in conjunction with Myrick’s other counsel, obtained a continuance.

The case was submitted to the jury on two special issues inquiring (1) whether O’Dowd, on or about July 11,1975, willfully neglected a legal matter entrusted to him by Myrick, and (2) whether O’Dowd, on or about July 11,1975, willfully failed to carry out a contract of employment entered into with Myrick. The jury did not find O’Dowd liable on either issue, and the court entered judgment setting aside the formal reprimand and ordering that the State Bar take nothing by its cross-action.

The State Bar appeals that judgment on six points of error. Its first point asserts that there was no evidence presented by O’Dowd that the formal reprimand was unwarranted. Under this point the State Bar contends that, because a reprimanded attorney must bring suit to set the reprimand aside, he is the plaintiff and has the burden of proof. The State Bar bases this argument upon the language of article XII, section 16(b) providing for appeal of reprimands:

If the accused shall deem the reprimand unwarranted, he may, within ten days after delivery or mailing thereof, file suit in the district court of the county of his residence to set the same aside, failing which, the reprimand shall become final .

The State Bar construes the clause “failing which, the reprimand shall become final” as a reference to the setting aside of the reprimand. Thus construed, section 16 would make the reprimand final if the attorney was unsuccessful in his suit to set it aside and the attorney would have the burden of proving that the reprimand was unwarranted. However, we construe the “failing which” clause to have reference to the filing of the suit to set aside the reprimand. Construed in this way, section 16(b) provides that the reprimand shall become final if a suit to set it aside is not filed within ten days after delivery or mailing thereof. The only burden incumbent upon the attorney is to timely file suit to set the reprimand aside. The suit itself is a trial de novo. State Bar of Texas v. Semaan, 508 S.W.2d 429, 433 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.). The State Bar thus had the burden of proof on its allegations that O’Dowd was guilty of professional misconduct. The point is overruled.

The second point asserts the trial court erred in failing to hold that the State Bar established professional misconduct in violation of DR 1-102(A)(4), (5), and (6) as a matter of law. We disagree. The State Bar offered no evidence that O’Dowd had been dishonest, fraudulent, or deceitful in his dealings with Myrick, or that he had made any misrepresentations to Myrick. Nor did the evidence establish as a matter of law that O’Dowd’s conduct was prejudicial to the administration of justice or that it adversely reflected on his fitness to practice law.

Points three and four contend that the jury’s answer to the first special issue inquiring whether O’Dowd willfully neglected a legal matter entrusted to him was against the great weight and preponderance of the evidence. The testimony established that Schindler, an attorney working for O’Dowd, appeared at the hearing in question at O’Dowd’s request and obtained a continuance on behalf of Myrick. During this time, O’Dowd testified, he was in a severe state of emotional depression. The jury could have concluded that O’Dowd was unable to perform his obligations and had his associate handle the case. The point is overruled.

Points five and six assert that the jury’s answer to the second special issue, inquiring whether O’Dowd willfully neglected to carry out a contract of employment entered into with Myrick, was against the great weight and preponderance of the evidence. Again, there was evidence' presented that O’Dowd did not neglect the matter which formed the purported contract of employment, but that O’Dowd’s associate attended the hearing in O’Dowd’s place to obtain a continuance during O’Dowd’s emotional disability. The points are overruled,

Affirmed.


author: KEITH, Justice.

text:
    Harry Aristos ALEXANDER, Appellant, v. STATE of Texas, Appellee.
    No. 7902.
    Court of Civil Appeals of Texas, Beaumont.
    July 7, 1977.
    Phillip E. Hosey, Galveston, for appellant.
    Michael J. Guarino II, Galveston, for ap-pellee.
   KEITH, Justice.

The appeal is from a final judgment which declared money seized in a gambling arrest “was used as equipment and paraphernalia for gaming purposes, and that said money is capable of being used for some legal purposes”. It was ordered that the money be delivered to Galveston County under the provisions of Tex. Code Crim. Proc.Ann. art. 18.18(a) (Supp.1976-1977). We will designate the parties as “Claimant” and “State”, respectively.

On December 6, 1974, Galveston Police Officers and Agents of the Department of Public Safety, armed with search warrants, arrested Claimant just outside of the premises at 612 Thirty-Eighth Street in the City of Galveston as he was preparing to leave. He was returned to the building, and the premises were searched and certain paraphernalia used in picking the winning numbers for the day in a policy or numbers operation was found. Claimant testified that the officers seized $711 when they searched him at this address.

The officers also had a search warrant covering the premises where Claimant resided at 7007 Broadway, and they were accompanied to the address by Claimant. The officers testified that they found gambling paraphernalia at this address too, although this was disputed by Claimant in his testimony.

The officers also confiscated a large sum of money at this address, aggregating $13,-213 in currency, according to the testimony of Officer Davis. Claimant testified that he kept the money at home in his clothing because the government had placed a lien upon his assets, and he had been wiped out of two bank accounts because of seizures by the Internal Revenue Service.

Claimant testified that this money was acquired from his operation of a paint and body shop and some of it had been borrowed recently from his ex-wife. Some of the money, according to his testimony, came from his demolition business. Upon cross-examination, he admitted, somewhat reluctantly, that some of the money might have come from his gambling operations.

The money was seized, as indicated earlier, on December 6, 1974. On December 16, 1974, the State filed two suits involving the seized money, suggesting that the money might be the property of Claimant and asking that it be forfeited following a hearing. The two suits were consolidated for trial.

On December 12, 1974, the grand jury returned three separate indictments against the Claimant, alleging his participation in gambling activities at three different street addresses in the City of Galveston upon December 6, 1974, the date of the searches and seizures mentioned earlier. Each indictment contained two counts, one charging a violation of Tex. Penal Code Ann. § 47.03(a)(3) (1974), while the alternative count charged a violation of § 47.03(a)(1) (1974). An offense under this section of the code is a felony of the third degree.

The indictments each recite that they were returned to the District Court of Galveston County, 10th Judicial District, Texas. On February 14, 1975, Appellant/Claimant entered a plea of guilty to one of the indictments and entered into a stipulation, approved by the trial judge, wherein he admitted the possession of gambling paraphernalia at 2401 Post Office Street in Galveston in violation of subsection (3) of the cited statute. He was found guilty, and his punishment fixed at confinement for a period of seven years, probated, and a fine of $2,500. The other two cases involving his alleged gambling activities at 612 Thirty-eighth Street and 7007 Broadway, respectively, were dismissed upon the same day.

Claimant’s first point of error asserts that the forfeiture statute is unconstitutional relying upon the Court of Civil. Appeals’ opinion in Rumfolo v. State, 535 S.W.2d 16 (Tex.Civ.App.—Houston [14th Dist.] 1976. This contention .was decided adversely to Claimant when the Supreme Court reversed and rendered judgment in the cited case. See State v. Rumfolo, 545 S.W.2d 752 (Tex.1976). The first point is overruled.

We quote Claimant’s second point: “The Trial Court was without jurisdiction to forfeit Appellant’s property.” He cites Rumfolo v. State, supra, and Dugar v. State, 538 S.W.2d 852 (Tex.Civ.App.—Houston [14th Dist.] 1976), in support of his contention. Unfortunately, as viewed from Claimant’s perspective, Dugar suffered the same fate as did Rumfolo: It, too, was reversed and judgment rendered upholding the validity of the statute as applied to Claimant’s present complaint. State v. Dugar, Tex., 553 S.W.2d 102 (1977). Point two is overruled.

In his third point Appellant contends that there was no evidence that the money seized was gambling proceeds. He cites only Schwarting v. State, 505 S.W.2d 399 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ), in support of his contention. We note that Schwartmg arose under the old penal code, and the forfeiture was denied because the money was not seized in a gambling house nor was it shown to have been used for gambling purposes. Schwarting, supra, 505 S.W.2d at 401. The statute under which this case was tried does not require the State to make such proof in order to establish its right to prevail.

Moreover, Claimant was an interested witness at the hearing, and it is obvious from the judgment entered that the trial court did not accept his testimony. We also note that there was evidence from the police officers executing the search warrant that gambling paraphernalia was located in Claimant’s residence on Broadway. Indeed, State’s Exhibit 18 — a small printing press with policy slips inside it used to conduct a policy operation — was found in the closet which also contained the clothing with the money in the pockets. Point three is overruled.

The judgment is AFFIRMED.

STEPHENSON, J., not participating.

      . In Tex. Penal Code Ann. § 47.01(5) (1974), we find this definition: “ ‘Gambling paraphernalia’ means any book, instrument, or apparatus by means of which bets have been or may be recorded or registered; any record, ticket, certificate, bill, slip, token, writing, scratch sheet, or other means of carrying on bookmaking, wagering pools, lotteries, numbers, policy, or similar games.”

      . According to plaintiff, he kept the bills in separate suits, the $100 denominations in one suit, $50’s in another, $20’s in still another, etc. He kept a large number of one dollar denomination bills in a jump suit.

      . The second suit, involving the thirteen thousand dollar seizure at Claimant’s home, recited that the Internal Revenue Service had levied a jeopardy assessment of $8,101.13 upon the fund so that there was only $5,112.17 subject to forfeiture to the State.

      .Tex. Penal Code Ann. § 47.03 (1974) reads In part:
      “(a) A person commits an offense if he intentionally or knowingly does any of the following acts:
      “(1) operates or participates in the earnings of a gambling place;
      “(3) for gain, becomes a custodian of anything of value bet or offered to be bet.”


author: PRESLAR, Chief Justice.

text:
    In the Matter of D. M. G. H., Appellant.
    No. 6605.
    Court of Civil Appeals of Texas, El Paso.
    July 13, 1977.
    Highsmith & Highsmith, Thomas E. Hi-ghsmith, El Paso, for appellant.
    George N. Rodriguez, Jr., County Atty., James H. Luckett, Asst. County Atty., El Paso, for appellee.
   OPINION

PRESLAR, Chief Justice.

This appeal is from a judgment finding that Appellant engaged in delinquent conduct. The finding of delinquency is based on Appellant’s written statement which she contends should not have been admitted into evidence because of certain violations of the Juvenile Code by the arresting officers. We reverse the judgment.

The facts are that Appellant was arrested at 12:80 o’clock p. m., was then held in custody at a police substation from that time until taken before a magistrate at 7:25 o’clock p. m., and at 10:20 o'clock p. m. she was delivered to the juvenile detention facility. The Appellant was sixteen years of age, six months pregnant, and was not provided with any meals until delivered to the juvenile detention facility, although she was given a soft drink during the day. The reason given by the State for the delay in delivering the juvenile to the detention facility was that fifteen pages of No. 1 police reports were being filled out and that this was time consuming, and also the taking of the Appellant before the magistrate was time consuming. The Appellant’s point of error is that the trial Court erred in ruling that the rights provided Appellant under Section 52.02, Title 3, Texas Family Code, were not violated and in admitting Appellant’s confession and evidence obtained as fruits of that confession into evidence. The case is before us on an agreed statement of facts in which it is agreed that the evidence is insufficient for a finding of delinquency without the confession and fruits of that confession being in evidence.

By Title 3 of the Family Code, the Legislature of this State has seen fit to set up a statutory procedure covering the arrest, trial, and disposition of those juveniles accused of delinquency. Police officers, Courts, and others involved in the handling of juveniles are bound to comply with the detailed and explicit procedures enacted by the Legislature in that Code.

Section 52.02, entitled “Release or Delivery to Court,” provides:

“(a) A person taking a child into custody, without unnecessary delay and without first taking the child elsewhere, shall do one of the following:
“(1) release the child to his parent, guardian, custodian, or other responsible adult upon that person’s promise to bring the child before the juvenile court when requested by the court; “(2) bring the child before the office or official designated by the juvenile court;
“(8) bring the child to a detention facility designated by the juvenile court * * #

Appellant contends that her detention from 12:30 o’clock p. m. until 10:20 o’clock p. m. while police reports were being prepared is clearly “unnecessary delay," that a police substation is clearly within the term “elsewhere,” and that these violations of the above provisions made her confession and fruits thereof inadmissible in evidence. With that we agree because of another provision of the Family Code, Section 54.-03(e). The portion of that Section applicable here provides:

“ * * * An extrajudicial statement which was obtained without fulfilling the requirements of this title or of the constitution of this state or the United States, may not be used in an adjudication hear-Jng # # * »

We are of the opinion that the Court erred in admitting the confession taken in violation of Section 52.02. The judgment of the trial Court is reversed and the case is remanded to that Court for a new trial.


author: HALL, Justice.

text:
    Vernell McCULLOCH, Independent Executrix, Appellant, v. Laurence APPLIN, Appellee.
    No. 5697.
    Court of Civil Appeals of Texas, Waco
    July 14, 1977.
    Dean Woodward and Homer E. Dean, Jr., Alice, for appellant.
    Don E. Harris, Franklin, for appellee.
   HALL, Justice.

Laurence Applin brought this action in the form of a suit on a sworn account to recover an alleged balance due for materials and labor furnished and personal service rendered for the repairing and remodeling of a house owned by Jimmy Ivan Dick and Charlene Lanell Dick. Mr. and Mrs. Dick are now deceased, and this suit was brought against Vernell McCulloch who is independent executrix of the Dicks’ estates. After a hearing without a jury, judgment was rendered for plaintiff. Defendant appeals. We affirm.

The court permitted plaintiff to introduce his pleadings as prima facie proof of his claim, in accordance with the terms of Rule 185, Vernon’s Tex.Rules Civ.Proc., relating to sworn accounts. Defendant says that the cause pleaded by plaintiff is one on special contract and not on sworn account, and only for this reason contends that the court erred in accepting plaintiff’s petition as proof under Rule 185. We overrule this contention.

Plaintiff pleaded an agreement with Mr. and Mrs. Dick under which he was to provide materials and labor for repairing and remodeling the Dick home and oversee the work. When the job was completed, the Dicks were to reimburse plaintiff for the costs incurred by him for materials and labor used on the job plus $700.00 for his personal service. Plaintiff attached a number of exhibits to his petition allegedly showing items of materials and labor used on the Dick house and their costs, and supported the pleading with an affidavit, stating he “has personal knowledge [of the annexed claim, account, and cause of action]; that same is just and true, that it is due and unpaid, and that all just and lawful offsets, payments and credits have been allowed.” Plainly, under plaintiff’s agreement with the Dicks, charges to their account with plaintiff would be made for materials and labor during the progress of the remodel-repair job. The total amount due plaintiff would not be known until the job ended. The account was open until that time. It was a proper one for suit under Rule 185.

Defendant objected to the tender of plaintiff’s petition into evidence on the ground it was inadmissible under the terms of Article 3716, Vernon’s Tex.Civ.St., the so-called “Dead Man’s Statute.” The objection was overruled, and defendant assigns error to this ruling.

In its pertinent parts Article 3716 provides that in an action by or against an executor arising out of a transaction with the decedent neither party shall be allowed to testify against the other as to any transactions with the decedent unless called to testify thereto by the opposite party.

In our case, plaintiff proved his agreement with the Dicks and the fact that he furnished materials and made repairs on their house by the testimony of witnesses who are not parties to the suit. The only purpose served by plaintiff’s petition and its attached account was the showing of the nature and amount of the materials and labor furnished by plaintiff and their value. There is no showing in the record that knowledge of these facts was gained by the plaintiff from transactions with the decedents; inferentially the proof shows that he learned and knew these things independently of his relationship with them. Defendant’s objection was properly overruled.

The judgment is affirmed.

      . Rule 185. Suit on Sworn Account. When any action ... is founded upon an open account or claim for goods, wares and merchandise . . . or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney ... to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall . . . file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true . . .


author: McDONALD, Chief Justice.

text:
    Mike HEARD, Appellant, v. HOUSTON GENERAL INSURANCE COMPANY, Appellee.
    No. 5750.
    Court of Civil Appeals of Texas, Waco.
    July 14, 1977.

      C. Edward Fowler, Bailey, Williams, Westfall, Lee & Fowler, Dallas, for appellant.
    Charles Sorrells, Touchstone, Bernays & Johnston, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Heard from a take nothing judgment in a workmen’s compensation case.

Plaintiff sustained an accidental injury on September 27, 1971, while employed by Planters Gin, which injury necessitated surgery, and a prosthesis applied to his left knee. Plaintiff sued, alleging injury to his left leg and body generally, and that the injury was a producing cause of total incapacity. Trial was to a jury which found:

1) Plaintiff received an injury on September 27, 1971.
2) He was injured in the course of his employment.
3) The injury was a producing cause of total incapacity which commenced on September 27, 1971 and was permanent.
4) The injury was not a producing cause of any partial incapacity.
Issue 5 was submitted with the following instruction:
“An injury to a specific member does not ‘extend to and affect’ other parts of the body if the use or attempted use of the injured member merely results in pain or other subjective complaints in such other parts of the body without producing damage or harm to the physical structure of such other parts.
“5) Did the injury to the left leg of Mike Heard extend to and affect any part of his body other than his left leg, or was such injury confined to his left leg?
“Answer: It was confined to his left leg.”

Both parties moved for judgment on the verdict. The trial court granted defendant’s motion and rendered judgment plaintiff take nothing. (Defendant had already paid benefits in full for loss of the leg).

Plaintiff appeals on 5 points contending the trial court erred in overruling plaintiff’s motion for judgment.

Defendant in its brief asserts there is no evidence or insufficient evidence to sustain the jury findings that plaintiff has any disability other than a specific injury to his left leg.

The jury’s answers to issues 1 thru 4 entitle plaintiff to judgment for total permanent incapacity. The jury’s answer to issue 5 entitles plaintiff to judgment for loss of his leg.

Plaintiff was entitled to judgment for the largest sum recoverable under the verdict of the jury. McCartney v. Aetna Casualty & Surety Co., Tex., 362 S.W.2d 838.

Plaintiff pled injury to his leg and body generally and that such was a producing cause of total incapacity. Plaintiff testified that his leg and back give him trouble; that he has “lots of trouble in his lower back on both my right and left side”; and that “I have a problem with my leg and my back”. Plaintiff’s mother also testified plaintiff could not do the usual tasks of a workman and that he continued to have problems with his knee and back. We think the evidence ample to sustain findings 1 thru 4.

In any event defendant moved for judgment on the verdict; and motion for judgment on the verdict is an affirmation that the findings of the jury are supported by the evidence. Wilson v. Burleson (Waco, Tex.Civ.App.) NRE, 358 S.W.2d 751; Austin Building Co. v. National Union Fire Insurance Co. (Dallas, Tex.Civ.App.) NRE, 403 S.W.2d 499; Insurors Indemnity & Ins. Co. v. Associated Indemnity Corp., 139 Tex. 286, 162 S.W.2d 666; Red Ball Motor Freight, Inc. v. Arnspiger (Dallas, Tex.Civ.App.) NWH, 449 S.W.2d 132; United Savings Life Insurance Co. v. Glenn (Waco, Tex.Civ.App.) NRE, 473 S.W.2d 629; Braswell v. Braswell (Waco, Tex.Civ.App.) er. dismd., 476 S.W.2d 444.

Plaintiffs contention is sustained.

The judgment is reversed and the cause is remanded to the trial court with instructions to render judgment for plaintiff for total and permanent disability, giving defendant credit for partial benefits already paid.

REVERSED & REMANDED.