text:
    The FIRST STATE BANK OF CHILDRESS, Texas, et al., Appellants, v. Welton FIELDS et al., Appellees.
    No. 8751.
    Court of Civil Appeals of Texas, Amarillo.
    April 29, 1977.
    Rehearing Denied May 31, 1977.

      Williams Broughton & Forbis, John T. Forbis, Childress, J. R. Blumrosen, Jones, Trout, Flygare & Moody, Chauncey Trout, Lubbock, Grady, Johnson, Smith & Blake-ley, Thomas A. Blakeley, Jr., Dallas, Travis Shelton, Lubbock, for appellants.
    McClendon, Richards & Campbell, Tom M. Richards, Lubbock, for appellees.
   ELLIS, Chief Justice.

In this venue case, the plaintiff cotton farmers seek to sustain venue in Cottle County, Texas against a bank and four cotton companies, non-resident defendants, who each had filed its plea of privilege to be sued in the county of its residence. Each of these defendants has brought its appeal from the order of the trial court overruling the respective pleas of privilege. Reversed and rendered.

Welton Fields and various other cotton farmers in the Cottle County, Texas area, plaintiffs-appellees, sold their cotton to Vaughn B. Nowlin, dba Vaughn B. Nowlin Cotton Company, in January, February, and March, 1976. The checks given by Nowlin in payment for the cotton were dishonored when presented for payment at The First State Bank of Childress, Texas, the bank upon which the checks were drawn. On March 13,1976, these plaintiffs brought suit against the following defendants: Vaughn B. Nowlin (a resident of Childress County), the cotton merchant against whose account the checks were drawn; Elva Currey (a resident of Cottle County), the agent of Nowlin who actually drew the checks; five cotton companies who allegedly purchased the cotton in question from Nowlin and acquired the warehouse receipts therefor, namely, R. S. Tapp, d/b/a R. S. Tapp & Co., Adolph Hanslik Cotton Co., Inc., Allenberg Cotton Co., Inc. (whose respective residences or domiciles are each in Lubbock County), H. Molsen & Co., Inc., (domiciled in Dallas County) and Toyo Cotton Company, not involved in this appeal; the compress and warehouse company with which the cotton is allegedly stored in Cottle County; and the First State Bank of Chil-dress (with residence in Childress County). Proceedings against defendant Nowlin were stayed by reason of a pending bankruptcy action.

An examination of the pleadings in this suit discloses that the plaintiffs sought monetary damages from the bank, injunc-tive relief against the warehouse and cotton companies with regard to the moving of any of the cotton in storage to prevent harm to the plaintiffs, and the return or reissuance of the warehouse receipts in order to effect possession and control of the cotton represented by the warehouse receipts. The bank and four of the five above named cotton companies (all except Toyo Cotton Company) filed pleas of privilege to be sued in their respective counties of residence. These pleas were controverted on the bases of subdivisions 4, 5, 7, 10 and 29a of Tex.Rev.Civ.Stat.Ann. art. 1995. After a hearing the trial court overruled the pleas of privilege without filing findings of fact and conclusions of law. The bank and the four cotton companies have appealed from the trial court’s order. Each appellant contends that the trial court erred in overruling its plea of privilege either by a single point of error embracing its contentions regarding each of the subdivisions pleaded by the plaintiffs or by separately designated points or error referring respectively to the specific grounds asserted by the plaintiffs in subdivisions 4, 5, 7, 10 and 29a of the venue statute.

Subdivision 4 of the venue statute authorizes suit of multiple defendants in the same county if one defendant resides in that county. To establish venue under this subdivision, the plaintiff must plead and prove that he has a bona fide cause of action against the defendant residing in the county. Western Steel Company v. Hayek, 452 S.W.2d 732 (Tex.Civ.App — Corpus Christi 1970, no writ); 1 R. McDonald, Texas Civil Practice § 410.2 at 434 (1965). The plaintiffs have argued that they have a bona fide cause of action against Elva Cur-rey.

It is true that Elva Currey was named as a defendant in this suit and that she is a resident of Cottle County. The pleadings and proof disclosed, however, that Currey was sued only as the agent of her disclosed principal, Vaughn Nowlin. Under these circumstances, she would not be personally liable to the defendants and her residence in Cottle County will not call subdivision 4 to operate on these facts. Hanslik v. Nickels Ginning Company, 496 S.W.2d 788 (Tex.Civ.App. — Amarillo 1973, no writ). The plaintiffs have argued, however, that Currey was a party to deceit and, therefore, personally liable. Foix v. Moeller, 159 S.W. 1048 (Tex.Civ.App. — El Paso 1913, writ ref’d). Pleading and proof of this fact have not been demonstrated and the plaintiffs have asked for no relief from her. In addition, there is no pleading of a joint cause of action against defendant Currey and any of the appellants. For the reasons above stated, venue cannot be sustained in Cottle County under subdivision 4, as against any of the appellants.

In their controverting affidavits, the plaintiffs pleaded that subdivision 5 applied to these facts. Upon oral argument, however, they abandoned this claim. For this reason, we have not discussed it here.

Plaintiffs seek to maintain venue against the respective appellants under subdivision 7. To establish venue under that subdivision, the plaintiff must plead and prove that the defendant committed actionable fraud in the county of the suit. One element of actionable fraud is a false representation by the defendant. Brooks v. Parr, 507 S.W.2d 818 (Tex.Civ.App. — Amarillo 1974, no writ). In this case, there is no evidence of any explicit or implicit representations made by any of these defendants to any plaintiff. Although the plaintiffs have alleged that the Bank and Vaughn Nowlin were parties to a fraudulent conspiracy, they have produced no evidence of a conspiracy. For the reasons above set out, the trial court’s order cannot be sustained by subdivision 7 as to any of the appellants.

The plaintiffs also pleaded subdivision 10. That subdivision provides:

10. Personal property — Suit for the recovery of personal property may be brought in any county where the property may be or where the defendant resides. Tex.Rev.Civ.Stat.Ann. art. 1995.

The controlling venue facts under subdivision 10 are (1) the petition must show that the suit is brought to recover personal property in the county of suit and (2) the plaintiff must prove that the property is located in that county. Langdeau v. Erwin, 367 S.W.2d 945, 948 (Tex.Civ.App. — Austin 1963, writ dism’d); Allen v. Hamilton National Bank, 459 S.W.2d 955 (Tex.Civ.App. —Waco 1970, no writ). The rule is well established in Texas that in order to determine whether the plaintiff is seeking to recover personal property within the county of suit, it is necessary to look to the contentions of the plaintiff’s petition. Walshak v. Walshak, 417 S.W.2d 307 (Tex.Civ.App.— Corpus Christi 1967, no writ); Allen v. Hamilton National Bank, supra.

In the case before us, the plaintiffs’ petition contains three separate counts or grounds for recovery. In Counts II and III, the plaintiffs have not sought recovery of any personal property; they sought monetary recovery from the bank and injunctive relief with reference to the cotton companies and the warehouse company but not the recovery of cotton. Count I pertains to the cotton companies. The relief sought from them is set out in the following terms:

In this regard the Plaintiffs would show that said Warehouse Receipts should be returned to them or, in the alternative that new warehouse receipts should be issued, that they should be given full possession and control of their cotton, including the ability to sell the same, that any loss due to market decrease at the time of such sale should be paid by the Defendants NOWLIN and FIRST STATE BANK OF CHILDRESS, TEXAS, and that any additional storage charges these Plaintiffs are forced to pay to the Defendant R. E. HUNTLEY COTTON COMPANY d/b/a PANHANDLE COMPRESS AND WAREHOUSE COMPANY due to any actions causing delay by any of these Defendants should be paid, if at all, by the Defendants causing such delay. (Emphasis added)

Significantly, the only specific items of personal property sought to be recovered are the warehouse receipts. The plaintiffs want them returned or replaced because they are necessary for “full possession and control of their cotton.” In the cotton trade, possession of the cotton is controlled by possession of the corresponding warehouse receipts. Citizens Co-op Gin v. United States, 427 F.2d 692 (5th Cir. 1970). The petition does not aver that the receipts are located in Cottle County and no proof of this fact was offered at the venue hearing.

The petition indicates no basic concern of the plaintiffs to get specific bales of cotton returned. Rather, it appears that they primarily seek the monetary value thereof as represented by the warehouse receipts. In determining the application of subdivision 10, we are constrained to look only to the petition, and in the instant case, it is our opinion that the petition does not show that they are primarily seeking recovery of the cotton. See e. g., Congleton v. Mundet & Son, 43 S.W.2d 1111 (Tex.Civ.App. — Galveston 1931, writ dism’d). We have concluded that this is a suit for monetary damages, injunctive relief and return or reissuance of the warehouse receipts. Because the warehouse receipts were not located in Cottle County, subdivision 10 cannot operate to hold venue there as to the appellants in this case.

The last subdivision pleaded by the plaintiffs was 29a. Subdivision 29a provides:

. Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.

The plaintiffs’ controverting affidavit stated that Elva Currey was a resident of Cot-tle County and a necessary party. There was no allegation or proof that any of the appellants was a necessary party to the litigation. For this reason, subdivision 29a is not applicable. B & C Construction Co. v. Grain Handling Corp., 521 S.W.2d 98 (Tex.Civ.App. — Amarillo 1975 no writ); McCormick v. Vernon Butler Chevrolet Company, 372 S.W.2d 757 (Tex.Civ.App — Texarkana 1963, no writ). As stated in Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900 (1942):

Subdivision 29a ... is purely ancillary to other exceptions to Article 1995, and can never be invoked to fix venue in a given county independent of some one of those exceptions. It relates only to suits brought in a county where no defendant resides or is domiciled, but which can be maintained there . . . under some other exception of that article.

Thus, because Elva Currey, a co-defendant, is a resident of Cottle County, subdivision 29a cannot apply.

Moreover, in the recent case of Loop Cold Storage Co. v. South Texas Packers, Inc., 491 S.W.2d 106 (Tex.1973) the Supreme Court stated that in order to hold a defendant under subdivision 29a there must be allegations and proof that there is joint liability between the party to be held and one or more parties which the plaintiff proves can be held under some exception to the venue statute. There is no allegation or proof of joint liability of any of the appellants with any other defendant in this case.

In view of the foregoing, we have concluded that subdivision 29a cannot be applied here to sustain venue against any of the appellants in this case.

In our opinion, the defendants’ pleas of privilege should have been sustained. None of the venue exceptions pleaded will serve to maintain venue in Cottle County. We see a series of similar, yet completely independent transactions, all centering around Vaughn Nowlin. It is apparent that this lawsuit is in actuality, a multitude of lawsuits. There is no common thread which can tie these various defendants to the same forum. The defendants are not interrelated with each other or with the plaintiffs. Thus, it appears that the plaintiffs have alleged distinct causes of action against these respective defendants, and that such causes are severable. See 1 R. McDonald, Texas Civil Practice, § 4.57 (1965) page 621.

For the reasons above stated the order of the trial court is reversed and judgment is rendered that the pleas of privilege of all appellants be granted. The action against each appellant is ordered severed and transferred in accordance with Tex.R.Civ.P. 89. Accordingly, the cause against The First State Bank of Childress is ordered severed and transferred to the district court of Chil-dress County; the cause against H. Molsen & Co., Inc. is ordered severed and transferred to a district court in Dallas County; and the respective causes against Allenberg Cotton Co., Inc., Adolph Hanslik Cotton Co., Inc. and R. S. Tapp d/b/a R. S. Tapp & Co., are each ordered severed and transferred to a district court in Lubbock County.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    Felipe SANCHEZ, Jr. and Luis F. Puig, Jr., Appellants, v. Charles B. DICKINSON et al., Appellees.
    No. 15708.
    Court of Civil Appeals of Texas, San Antonio.
    May 4, 1977.

      Thomas Rocha, Jr., Rocha, Tutt & Rosenberg, San Antonio, for appellants.
    Lawrence A. Mann, Mann, Cronfel & Person, Nat B. King, Laredo, for appellees.
   KLINGEMAN, Justice.

This case involves a first refusal right to purchase contained in a contract between Victor Pena and wife as sellers and J. W. Elledge as buyer, dated December 13,1962, of record in the deed records of Zapata County, Texas. Suit was brought by appel-lees, Charles B. Dickinson and wife, Bertha G. Dickinson, against Gilberto Pena, Lilia Pena de Lucio, Gulf Oil Corporation, Felipe Sanchez, Jr., and Luis F. Puig, Jr. to avoid or cancel certain oil, gas, and mineral leases and mineral deeds on a tract of 152.73 acres, which leases and mineral deeds plaintiffs assert were made in contravention of a recorded first refusal option owned by them.

All defendants filed motions for summary judgment and plaintiffs moved for partial summary judgment. On May 24, 1976, the trial court denied each of the summary judgments filed by the respective defendants and granted plaintiffs partial motion for summary judgment. Thereafter, on June 8, 1976, a final judgment was entered herein in which the court confirmed its previous judgment; Gulf was dismissed from the lawsuit; the cross-action filed by Puig was dismissed; plaintiffs were found to be the owners of an oil, gas, and mineral lease given in 1969 on the 152.73-acre tract by Victor Pena to James A. Mayo and thereafter assigned to Gulf, which lease was found to be superior to an oil, gas, and mineral lease on such tract taken by Sanchez and Puig; and Sanchez and Puig are directed to convey to plaintiffs their interest in two mineral deeds and any rights they may have in and to the oil, gas, and mineral leases above referred to. Such judgments also provide for tender of certain payments by plaintiffs to Sanchez and Puig. This judgment contains various findings made by the trial court. Only Sanchez and Puig appeal from such judgment.

The trial court filed extensive findings of fact and conclusions of law, the pertinent portions of which may be summarized as follows:

1. The 1962 contract between Victor Pena and Elledge consisted of two separate parts: (a) an option to purchase a 991.21-acre tract except for the 200-acre homestead; and (b) a first option to purchase the reserved 200 acres, when and if sellers decide to convey said acreage. This contract was filed for record in Zapata County, Texas.

2. The first option to purchase this smaller tract was assigned by Elledge to the Garzas in 1963 and by mesne conveyances passed from the Garzas to Dickinson, where it is now vested.

3. Various oil, gas and mineral leases and mineral deeds were executed without notice to plaintiffs.

4. Neither Sanchez nor Puig asserted that the description of the land was inadequate or insufficient.

The court, in its conclusions of law, found that:

1. The first refusal right to purchase the homestead tract is separate and distinct from the remainder of the 1962 contract.

2. Such first refusal right is a covenant running with the land, is binding on Sanchez and Puig, and is without any time limitation.

3. Sanchez and Puig had constructive notice of the first refusal right to purchase.

4. Plaintiffs are entitled to have conveyed to them the various leases and mineral interests upon payment to Sanchez and Puig of the consideration that Sanchez and Puig paid.

The 1962 contract between Victor Pena and Elledge is styled “OPTION CONTRACT OF PURCHASE.” The pertinent portions here involved are as follows:

Paragraph one provides for the purchase and sale of a tract of 743.94 acres of land out of a tract of 943.94 acres (by survey established as 791.21 acres out of the 943.94 acres), upon certain terms and considerations.
Paragraph four grants to the buyer the first option to purchase the reserved 200 acres (by survey determined to be 152.73 acres), when and if seller decides to convey said acreage.
Paragraph seven provides that the option shall be for 90 days from date and that the purchase price or consideration shall be the sum of $25.00 per acre or $18,600.00 (by mathematical calculation it is clear that this option refers to the 743.94 acres).
Paragraph nine provides that the option and agreement shall bind the heirs, executors, administrators, and assigns of both parties.

A chronological listing of the material instruments is as follows:

1. 12-13-62. The contract between Victor Pena and Elledge, hereinbefore described.
2. 4-18-63. Warranty deed from Victor Pena et ux. to Elledge of 791.21 acres. No reference is made of the first refusal right to purchase the 152.73 acres.
3. 12-23-63. Warranty deed from El-ledge to the Garzas conveying the 791.21-acre tract, which deed recites that El-ledge was given a first refusal option to purchase the smaller tract under a recorded contract and this first refusal option is conveyed to buyers.
4. 1-31-68. Warranty deed from the Garzas to Dickinson and Rodriguez. Virtually identical to the deed above. Rodriguez thereafter conveys his interest to Dickinson.
5. 9-16-69. Oil, gas, and mineral lease from Victor Pena to James A. Mayo on the 152.73-acre tract. Mayo assigns and conveys this lease to Gulf Oil Corporation.
6. 11-1-72. Victor Pena dies and de Lucio and Gilberto Pena are named as executors of his estate.
7. 10-18-73. Hunting and grazing lease on the 152.73-acre tract between de Lucio and Gilberto Pena and Dickinson.
8. 2-17-75. Oil, gas, and mineral lease from de Lucio and Gilberto Pena on the 152.73-acre tract to Sanchez. Thereafter, Sanchez conveys an interest in such lease to Puig.
9. 3-28-75. Mineral deed from de Lucio and Gilberto Pena on the 152.73-acre tract to Sanchez. Sanchez thereafter conveys an interest therein to Puig.

The controlling question in this suit is whether appellees are the holders of a valid and subsisting first refusal right to purchase the 152.73-acre tract under the December 13, 1962 contract of sale.

Appellants assert that such first option was not a valid one because:

1. The time to exercise it had expired (90 days).

2. There was no purchase price mentioned.

3. Such right was not a covenant running with the land.

4.It was not included in the warranty deed from Victor Pena to Elledge.

Although appellant refers to the first refusal right of purchase as an option, there are fundamental differences between an ordinary option to purchase and a right to buy ahead of others if the seller desires to sell, which is the nature of a preferential right to purchase. The rule is set forth in 77 Am.Jur.2d Vendor & Purchaser § 49 (1975), as follows:

The distinction between an option and a pre-emptive right to purchase in the event the landowner should decide to sell is well recognized. Unlike an option, a pre-emptive right does not give the pre-emptioner the power to compel an unwilling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property first to the person entitled to the pre-emptive right at the stipulated price. There is no doubt that an agreement based on a consideration to give the promisee the refusal or first right to purchase in case the landowner wishes to sell at a fixed price or at a price which may be made certain, while of less value than an ordinary option to purchase, is valid and binding on the landowner. The pre-emptive right ripens into an option when the owner has elected to sell.

We are of the opinion that paragraph four of the 1962 contract granted a preemptive right to purchase in the event the landowner should decide to sell.

In Gochman v. Draper, 389 S.W.2d 571 (Tex.Civ.App. — Austin 1965), the lessee in the lease agreement was given the right of first refusal to purchase the interest of the lessor if the lessor desired to sell his interest. The Court of Civil Appeals held that the first refusal provision in the lease was a valuable, valid, enforceable contract right, and stated:

The phrase ‘first refusal’ has acquired a well understood meaning in the business world which is that the owner of such right must be given the opportunity to buy the subject property on the terms offered by any bona fide purchaser. * *
It is indisputable that a purchaser from a lessor who has given lessee a right of first refusal to buy takes the property subject to that right and lessee must be granted the opportunity to purchase at the price transferred.

In Foster v. Bullard, 496 S.W.2d 724 (Tex.Civ.App. — Austin 1973, writ ref’d n. r. e.), Foster brought suit to enforce the terms of a first refusal option agreement made with Bullard, who was acting for Casa Monte Company. Foster had purchased 30 acres, and the first refusal option covered an additional 50 acres. Bullard sold the 50 acres to Mutual. The Court stated:

Mutual took with actual notice of Foster’s first refusal purchase rights. To be a bona fide purchaser Mutual was obligated to make reasonable inquiry to determine whether Casa Monte had met its obligations under the option contract to offer the fifty acres to Foster at a price consistent with Mutual’s offer .

In Stone v. Tigner, 165 S.W.2d 124 (Tex.Civ.App. — Galveston 1942, writ ref’d), Tig-ner, the lessee under a lease agreement, was given the first right and option to purchase any and all of the land should the lessor decide tc sell. The Court held that the option runs with the land itself, and thus, it was not a collateral or personal contract between the parties.

We have concluded that the contract and agreement between Victor Pena and El-ledge, dated December 13, 1962, created a valid and binding first refusal right to purchase the 152.73-acre tract here involved.

Appellants assert that even if such contract created a valid and enforceable right to purchase said tract, it is no longer valid and subsisting, and that appellees have no rights thereunder because:

1. The time to exercise the option has expired (90 days).

2. There was no purchase price mentioned.

3. It was never transferred because it was not included in the warranty deed from Victor Pena to Elledge.

4. The doctrine of merger wiped out such first refusal right to purchase.

5. It was not a covenant running with the land.

6. Appellees have waived or are es-topped to assert such rights.

Much of appellants’ arguments are based on their contention that we have involved an ordinary option to purchase, and as such, is a continuing offer to sell during the option period irrevocable during such period, and that the transition of an option into a contract of sale can only be effected by an unqualified and unconditional acceptance of such offer in accordance with the terms and within the time specified in such option. Based on this premise, they assert that such option had to be exercised within 90 days. They also argue that there must be an agreed definite purchase price.

We have heretofore held that we do not consider this as an ordinary option, but rather as a pre-emptive right to purchase in the event the landowner should decide to sell. The owner does not have to sell, and until the owner decides to sell there is nothing to exercise nor would it be possible to fix in advance a definite certain pui'chase price. Because of the nature of such right the price and method of payment are made certain at such time as the seller elects to sell. If the owner decides to sell, he is obligated to offer the holder of such preemptive right an opportunity to buy the subject property on the terms offered by a bona fide purchaser. Until such time, ap-pellee was under no duty to act.

Moreover, from an examination of the entire contract, it appears clear that the 90-day option to purchase in the December 13, 1962 agreement dealt only with the larger tract and has no application to the first right of refusal pertaining to the smaller tract. Such provisions are in different and separate paragraphs of the contract, and it is clear from the purchase price therein stated that it pertains only to the larger tract.

Appellants also rely on the doctrine of merger. They contend that by virtue of the deed from Victor Pena to Elledge, which covered the larger tract but made no mention of the smaller tract, under the doctrine of merger, the entire contract has been consummated. While it is true that as a general rule a deed made in full execution of a contract to sell land merges the provision of the contract thereto, there are exceptions to this general rule, and when the deed constitutes only partial performance of the preceding contract, other distinct and unperformed provisions of the contract are not merged into it,, and where a contract of sale provides for the performance of acts other than the conveyance, it remains in full force and effect as to such other act until full performance thereof. 26 C.J.S. Deeds § 91c (1961).

The doctrine of merger is not here applicable.

We do not regard the failure to mention the right of first refusal in the deed from Victor Pena to Elledge as fatal; in fact, it is consistent with the entire contract. The 90-day option was a separate and distinct provision which was consummated by the deed. The first refusal right to purchase the smaller tract, if the seller ever decides to sell it, was also a separate and distinct provision of the contract held by Elledge and which continued in force and effect. The subsequent deed by Elledge to the Gar-zas, and all deeds thereafter in the chain of title, refer to the pre-emptive right to purchase the smaller tract and transfer and assign this pre-emptive right to the subsequent purchaser, including, ultimately, the Dickinsons, appellees herein.

Appellants’ contention with regard to waiver and estoppel is premised upon a hunting and grazing lease dated October 18, 1973 between the executors of the estate of Victor Pena as lessors and Charles B. Dickinson as lessee, covering the 152.73-acre tract. In such grazing lease there is a statement that such lands, or portions thereof, are now or may be leased during the terms thereof for oil, gas, and other minerals, and that the hunting and grazing lease is subject to any such oil, gas, and mineral leases theretofore executed or any that may be thereafter executed.

While there were a number of defendants in the trial court, the only defendants who filed an appeal herein are Sanchez and Puig. The answers by these two defendants do not specifically plead or even mention the defense of waiver or estoppel.

We overrule appellants’ contention with regard to waiver or estoppel for the following reasons: 1. Neither of the defendants plead waiver or estoppel in the trial court. 2. The recitals in the hunting and grazing lease are not a part of the contract sued upon herein.

Appellants also assert that the first refusal right to purchase the 152.73-acre tract did not prohibit Victor Pena, the owner of such tract, from executing oil, gas, and mineral leases. This would be true of an ordinary lease. However, it is well settled that in Texas an oil, gas, and mineral lease is a sale of an interest in land. Mills v. Brown, 159 Tex. 110, 316 S.W.2d 720 (1958); Avis v. First Nat. Bank of Wichita Falls, 141 Tex. 489, 174 S.W.2d 255 (1943); Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021 (1934), motion for rehearing overruled per curiam, 124 Tex. 290, 80 S.W.2d 741 (1935). The trial court properly held that the oil, gas, and mineral leases and mineral deeds given by Victor Pena or his successors in title were in derogation of plaintiffs’ pre-emptive right of first refusal to purchase the 152.73-acre tract.

By one point of error appellants complain that the trial court should have complied with appellants’ timely requests for additional findings of fact and conclusions of law. In July 1976 appellants filed a request for findings of fact and conclusions of law. Thereafter, the court filed its findings of fact and conclusions of law, which are quite extensive and which have been hereinbefore summarized. Appellants re-quested additional findings of fact and conclusions of law, and the court made some additional findings, but also held that no additional findings, as requested by appellants, were warranted because:

1. The facts are adequately covered by his original findings.

2. The requested findings could not affect the judgment rendered.

3. The requested findings call for immaterial and evidentiary material, as well as facts in conflict with evidentiary supported findings.

4. The requested findings call for a statement of the theory of the case that is in variance with the court’s findings theretofore filed and on which the case was tried.

5. The requested findings have been disposed of directly or indirectly by the court’s findings theretofore filed.

6. The requested findings do not relate to ultimate or controlling issues.

The findings filed by the court adequately cover all elements of the action, and the additional requested findings of fact and conclusions of law were immaterial. We find no error in the trial court’s refusal to

make additional findings. Rule 296, Tex.R. Civ.P.; Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944); Houssiere v. Houssiere, 389 S.W.2d 533 (Tex.Civ.App. — San Antonio 1965, no writ); Domengeaux v. Kirkwood & Go., 297 S.W.2d 748 (Tex.Civ.App. — San Antonio 1956, no writ); 4 McDonald Texas Civil Practice § 16.07 (1971).

Appellants’ other point of error is that the trial court erred in granting summary judgment for plaintiffs. All parties, plaintiffs, and defendants filed motions for summary judgment. The trial court overruled all defendants’ motions for summary judgment, of which no complaint is here made. Appellants assert that the summary judgment for plaintiffs was improperly granted because (a) there are disputed issues of fact; (b) plaintiffs’ affidavit in support of its motion for summary judgment is self-serving, contains conclusions, incompetent hearsay, and is that of an interested person.

We have concluded that plaintiffs’ motion for summary judgment was properly granted for the various reasons hereinbefore set forth in this opinion. The summary judgment was based not only on the supporting affidavit, but also on a stipulation and on numerous written instruments, which, in our opinion, establish as a matter of law all material facts and issues necessary to the summary judgment granted.

All of appellants’ points of error have been considered and all are overruled.

The judgment is affirmed.

      . Gulf assigned whatever interests i ; had under such lease to plaintiffs.

      . There was no contention made in the trial court that the property description was inadequate or insufficient, and the description in the oil, gas, and mineral leases and mineral deeds allegedly owned by Sanchez and Puig is identical with the description relied on by plaintiffs.

      . By one point of error appellants assert that the trial court erred in holding that the December 13, 1962 contract of sale was a valid and subsisting first refusal right to purchase, which was assigned to plaintiffs and was a covenant running with the land.

      . The Supreme Court, in 400 S.W.2d 545 (Tex. 1966), reversed the case on other grounds. The case involved a foreclosure under a deed of trust. The Court stated that the first refusal right was given in the event the grantor ‘desired to sell’; that this was intended to cover voluntary acts of grantor covering either an offer on the grantor’s part to sell or his willingness to accept an offer from a third person, and stated: “Our holding is that the trustee’s sale here was not a voluntary sale so as to give Gochman [the lessee] a preferential right to purchase. The purchasers at that sale took the property burdened with Gochman’s right to purchase if they, during the term of Gochman’s rights, desire to sell.”

      . In Sinclair Ref. Co. v. Allbritton, 147 Tex. 468, 218 S.W.2d 185, 188 (1949), the Court said: “If the price is to be based on what a third party may offer, the result is not a purchase option in the usual sense — what the contract here calls ‘the exclusive option and privilege of purchasing’, — but rather a mere right of refusal which should hardly be called an option at all. If the price is to be the market value of the premises at the time the option is exercised, then usually no price in dollars and cents is named.”

      . See Thompson v. Reising, 114 Ind.App. 456, 51 N.E.2d 488 (1943), where the Court says, “If, however, the contract for the sale of land creates rights collateral to and independent of the conveyance, the contract to that extent survives a deed that is silent in respect thereto. This is on the theory that the conveyance is not necessarily a performance of such collateral and independent agreements, . . . .”

      .Waiver is frequently defined as an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it. Massachusetts Bond & Ins. Co. v. Orkin Exterm. Co., 416 S.W.2d 396 (Tex.1967). There are various types of estoppel, but ordinarily, for estoppel to exist, there must be (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive of these facts; (3) to a party without knowledge, or the means of knowledge of these facts; (4) with the intent that it should be acted on; and (5) the party to whom it was made must have relied or acted on it to his prejudice.

      . In 31 C.J.S. Estoppel § 58 (1964), it is said: “A recital is not binding in an action not founded on the contract.” Perry Nat. Bank v. Eidson, 161 Tex. 340, 340 S.W.2d 483 (1960), involved controversy between the Bank and the heirs of Eidson as to the ownership of a 600-acre tract of land. Eidson had conveyed a 600-acre tract of land out of a 1190-acre tract to the Eidson Club Lake, which thereafter conveyed such tract to the Bank. Thereafter, Eid-son and Bank executed an agreement fixing and settling the boundary line between the 600-acre tract and a 590-acre tract. After Eidson’s death his heirs contended that the Bank had only a mortgagee’s interest in the 600 acres. The Bank filed a trespass to try title suit and contended that the boundary line agreement estopped Eidson’s heirs from claiming any ownership of the 600 acres. The Supreme Court held that the boundary line agreement was only for the purpose intended by that agreement, and that a recital in a simple contract is not binding in a suit which is not based upon the contract.


author: PHILLIPS, Chief Justice.

text:
    Walter WENDLANDT et al., Appellants, v. The SOMMERS DRUG STORES COMPANY, Appellee.
    No. 12565.
    Court of Civil Appeals of Texas, Austin.
    May 4, 1977.
    Rehearing Denied May 25, 1977.

      Peter M. Lowry, McGinnis, Lochridge & Kilgore, Austin, for appellants.
    Richard B. Moore, Marshall B. Miller, Jr., Gresham, Davis, Gregory, Worthy & Moore, San Antonio, for appellee.
   PHILLIPS, Chief Justice.

This suit was originally brought by The Sommers Drug Stores Company, appellee here, against appellants to enjoin them from taking possession of certain leased premises which were in the possession of appellee following a declaration of termination of the lease by appellants.

The court granted appellee a temporary injunction pending trial on the merits. The case was then tried before the court after which the court entered judgment granting a permanent injunction against appellants forbidding them to interfere with appellee’s use of the leasehold. We affirm this judgment.

Although appellants are before us on a number of points of error, the case presents two questions, viz, whether or not there was a breach of the lease by appellee; and, if so, did appellants afford appellee with sufficient notice of the default.

Appellants leased a drug store facility at the Southwood Center in Austin to appellee pursuant to a written lease executed June 2, 1964.

The lease provides for rental payments in advance on the first of each month, but it is undisputed that it was the custom and practice of appellee to prepare rent checks on or about the first of each month and to deposit the checks in the United States mails, properly stamped and addressed to appellants between the second and fifth of each month. It was also undisputed that this custom and practice was accepted by appellants without complaint for at least 1½ to 2 years prior to November, 1974.

On November 4, 1974, appellee’s vice-president received a letter from appellants, the relevant part being: “Our lease agreement provides that you will pay the rent on or before the 1st of the month. We have not received the rent due for November.”

Although appellants contend they did not receive the November, 1974, rent check, it was found as a fact by the trial court based on testimony by an officer of appellee, that the check was prepared and deposited in the United States mails in the usual course of appellee’s business.

On December 4, 1974, appellee received a registered letter from appellants dated December 3, 1974, which purported to forfeit the lease for alleged failure to pay November and December, 1974, rentals, and also demanded the unaccrued rental for the remaining portion of the month of December, 1974.

Thereafter, all rentals owed appellants by appellee prior to the end of December, 1974, were duly paid and accepted by appellants.

I

We hold that because appellants assented to and accepted, without protest, for at least IV2 to 2 years, a course of conduct whereby appellee made payment of rentals after the first of each month, the mailing of the November, 1974, rental check by appel-lee on November 4, 1974, did not constitute a breach of the lease in question. Bertrand v. Pate, 284 S.W.2d 802 (Tex.Civ.App.1955, no writ); Fant v. Miller, 218 S.W.2d 901 (Tex.Civ.App.1949, writ ref. n.r.e.); Miers v. Clark, 253 S.W.2d 941 (Tex.Civ.App.1952, no writ).

Appellee’s proof by evidence of a general procedure of mailing checks to their various lessors, and specifically in connection with the November, 1974, rental check in question, established the fact of mailing the check and, for the purposes of defeating appellants’ claim of default, established the November payment. Southland Life Ins. Co. v. Green wade, 138 Tex. 450, 159 S.W.2d 854 (1942); Smith v. F. W. Heitman Co., 44 Tex.Civ.App. 358, 98 S.W. 1074 (1906, writ ref.); Fant v. Miller, supra.

American courts have long recognized the impracticality of requiring proof of mailing only by direct proof of proper address, stamping and mailing, and have allowed the introduction of circumstantial evidence for this purpose. 2 McCormick and Ray, Texas Law of Evidence, § 1514 (2d ed. 1956). Also see 1 McCormick and Ray, Texas Law of Evidence, § 111 (2d ed. 1956).

Appellants’ reliance on Lawrence v. Continental Fire and Casualty Ins. Corp., 203 S.W.2d 967 (Tex.Civ.App.1947, no writ), as authority for a different rule with respect to the November payment question is misplaced, as the question of payment raised in Lawrence was applicable only to the question of establishing venue.

II

Appellants also contend that their letter dated November 2,1974, quoted above, constituted sufficient notice of default, that appellee failed to effect a timely cure, and further, that their letter dated December 3, 1974 (not quoted in this opinion since, due to our disposition of the case, we need not pass on its sufficiency as notice of default under the lease) constituted sufficient notice of default, and that it was not premature, and that appellee had willfully breached the lease agreement.

We hold that the letter dated November 2, 1974, quoted above, is not effective either as a demand for payment or as a notice of default. The letter demands nothing. Notice of default in payment of rent must convey a message that the notifier is initiating steps necessary to finally assert his legal rights that if default is not cured, he may take final action as provided in the contract. In this respect see: Moore v. Richfield Oil Corp., 233 Or. 39, 377 P.2d 32 (1962); Hocker v. Heins, 231 N.Y.S.2d 481 (Sup.Ct. of Suffolk County, N.Y.1962). Consequently, the letter of November 2, 1974, could not serve as a declaration of forfeiture. The cases in this State hold that a landlord cannot forfeit the lease of his tenant for failure to comply with the provisions without first making demand upon the tenant for performance. Gray v. Vogelsang, 236 S.W. 122 (Tex.Civ.App.1921, no writ); Shepherd v. Sorrells, 182 S.W.2d 1009 (Tex.Civ.App.1944, no writ); Conn v. Southern Pine Lumber Co., 11 S.W.2d 199 (Tex.Civ.App.1928, no writ).

Furthermore, it is only in cases in which the lease contract contains an express waiver of demand for performance that the rule announced above can be disregarded. Gray v. Vogelsang, supra.

The default clause in the lease at bar states that in event of default, the lessor may declare the lease forfeited at his discretion; however, we cannot agree with appellants’ contention that inasmuch as the lease required the payments to be made on the first of each month, failure to do so automatically placed the lease in default.

The default clause in this lease does not waive demand for performance as a condition precedent to forfeiture. Also see: Moore v. Richfield Oil Corp., supra; Hooker v. Heins, supra. In Rohrt v. Kelley Manufacturing Co., 162 Tex. 534, 349 S.W.2d 95 (1961), the Court sets out language in a letter sufficient as notice of default. The language in this case in no way compares with the language as set out in Rohrt.

The default clause in the lease at bar also gives appellee thirty days in which to cure any alleged default. Thus, appellee had thirty days after appellants’ letter of December 3,1974, in which to cure the default. We agree with the trial court that appellee cured any default.

In stating the facts of this case, we have followed the findings of fact set out by the trial court as, upon review of the record, we find ample evidence upon which to uphold them. Consequently, we find no merit in appellants’ no evidence or insufficient evidence points attacking these findings.

Finding no error, the judgment of the trial court is in all things affirmed.


author: SHANNON, Justice.

text:
    Laura Lee REDING, Appellant, v. Sharon Louise EATON, Appellee.
    No. 12566.
    Court of Civil Appeals of Texas, Austin.
    May 4, 1977.
    James B. Morris, III, Grubb & Morris, Houston, for appellant.
    Thomas S. Goggan, Goggan & Cain, Austin, for appellee.
   SHANNON, Justice.

This will contest was tried before the county court of Travis County. Judgment was entered denying the will to probate upon the basis that the deceased lacked testamentary capacity. We will affirm that judgment.

The will in question was signed by the deceased, Alfred Wesley Eaton, on May 21, 1975. He died on November 8, 1975. At the time of his death Eaton was not married. By a previous marriage the deceased had two daughters, Laura L. Reding, appellant, and, Sharon Louise Eaton, appellee.

In the instrument offered for probate the deceased devised most of his property to Laura L. Reding and named her executrix.

Upon request, the court filed findings of fact and conclusions of law. The court found on the date of the execution of the instrument offered for probate that the decedent did not have the mental capacity to understand or comprehend the nature and extent of the property owned by him; to know and understand the natural objects of his bounty and their claims on him; and to collect in his mind the elements of the business to be transacted, and to hold those elements in his mind long enough to perceive at least their obvious relation to each other and to be able to form a reasonable judgment as to them. The court concluded that at the time of the execution of the instrument offered for probate the decedent did not have testamentary capacity.

Laura Reding attacks the judgment by four points of error, the first three points being that the court’s findings of fact that the deceased lacked testamentary capacity were supported by no evidence or that the findings were so contrary to the great weight and preponderance of the evidence as to be manifestly unjust.

To have testamentary capacity, the testator must have been capable of understanding the business he was about, the nature and extent of his property, the persons to whom he meant to devise and bequeath it, the persons dependent upon his bounty and the mode of distribution among them. He must have had memory sufficient to collect in his mind the elements of the business to be transacted, and to hold them long enough to perceive at least their obvious relation to each other, and to be able to form a reasonable judgment as to them. Prather v. McClelland, 76 Tex. 574, 13 S.W. 543 (1890), Bettis v. Bettis, 518 S.W.2d 396 (Tex.Civ.App.1975, writ ref’d n. r. e.).

In the spring of 1975 when he was in the hospital, Eaton was visited by his daughter, Laura Reding and her family. Mrs. Reding secured Eaton’s release from the hospital. Mrs. Reding and her family then returned her father from the hospital in New Orleans to his home in Walls, Mississippi. Shortly after arriving in Mississippi, and on May 21, 1975, Mrs. Reding and her husband took Eaton to an attorney’s office in nearby Hernando where the instrument offered for probate was executed.

Appellee’s evidence was that the infirmities of age and sickness had crept over Alfred Wesley Eaton. Eaton, while in the hospital, was unable at first to recognize his daughter, Sharon Eaton, who had come to visit him. During that hospital visit Eaton's mind seemed to wander “back and forth” and he seemed to experience difficulty in conversation in concentrating upon one subject.

Appellee called LaVerne Nix, a neighbor of Eaton’s in Walls, Mississippi. Before his surgery, Eaton had boarded with Mrs. Nix. She, as well, had undertaken “to keep an eye on him because his mind wandered and he’d forget things.”

In connection with Eaton’s lack of memory, Mrs. Nix observed, “He’d forget things like mail. I’d carry him to the mailbox, post office every morning to get his mail, and then later in the day he would come in and ask me to carry him to the post office again. ‘I’ve already taken you.’ ‘No, you ain’t carried me in two or three days,’ and I’d carry him again just to get him off of my back because I had things that I needed to do.”

Eaton frequently forgot his appointments to see the doctor even though Mrs. Nix had reminded him of the appointment the evening before. He would forget to take his medicine, and would later bring the medicine to Mrs. Nix for her to give it to him. On occasion, Eaton forgot which pocket of his clothing in which he had placed his billfold, and he would ask Mrs. Nix to help him locate the billfold.

Eaton was fond of sports, and would read the sports section of the newspaper. Mrs. Nix would at times ask him “who had won the ball games. Eaton was unable to remember. He would respond that he would have to read the sports section again. Mrs. Nix testified that Eaton’s mind “kind of wandered” in that “He’d say things and then about ten minutes later he would repeat the same thing, tell it again.”

Eaton asked Mrs. Nix to tend to paying his bills. He was unable to understand the significance of some of the bills. For example, he could not understand why he had to pay premiums for his automobile or burial insurance. Mrs. Nix would attempt to explain and after several attempts Eaton would tell her “to take of it” for him. Simple banking transactions were beyond Eaton’s ken and he would ask Mrs. Nix to attend to those matters.

Mrs. Nix was in Eaton’s presence on May 21, 1975, the date of the execution of the instrument offered for probate. She testified that on that date Eaton, at least to a certain extent, did not understand what he was doing. Her testimony was that Eaton on that date did not have sufficient mental ability to understand the effect of his acts in making a will. Likewise, Mrs. Nix did not think that Eaton on that date had the mental capacity to understand the objects of his bounty and the claims they would have on him. She was of the opinion, however, that Eaton probably understood the general nature and extent of his property.

Appellant sought to rebut appellee’s evidence of Eaton’s lack of testamentary capacity by the testimony of several witnesses. In the main, appellant relied upon the testimony of Henry Reding, Eaton’s son-in-law. Reding testified that during the hospital visit by the Reding family, Eaton was able to carry on a conversation and that Eaton realized that he was in a hospital. Eaton recognized him and Laura Reding. Reding claimed Eaton did not seem to have any memory problem and that on the trip from New Orleans to Mississippi, Eaton gave him directions with respect to leaving the freeway to go to Walls. Reding and his wife took Eaton to the attorney’s office in Hernando, and at the law office Eaton told the attorney “what he wanted to do.”

In a nonjury case the trial court is the judge of the credibility of the witnesses and the weight to be accorded their testimony. Harrell v. Sunylan Go., 128 Tex. 460, 97 S.W.2d 686 (1936). Likewise, wherein there is conflicting testimony, the court in a non-jury case is free to adopt part or all of one witness’s testimony and reject the other testimony. We have concluded that the judgment is supported by probative evidence and is not contrary to the great weight and preponderance of the evidence.

Twenty-nine days after the entry of the judgment admitting the instrument to probate, appellee filed a motion for new trial which was granted by the county court. The granting of the new trial forms the basis for appellant’s fourth point of error. Point four claims that granting of the new trial “. . . was done without good cause shown and was an arbitrary action of the court such as to be an abuse of discretion.”

In the motion for new trial, appellee averred that appellant had commenced the probate proceedings without notice to ap-pellee, and that appellee had learned of the proceedings only after the will was admitted to probate. Appellee then alleged that the decedent lacked testamentary capacity at the time of the execution of the will.

Appellee filed her motion for new trial on the twenty-ninth day after the entry of judgment. The court granted the motion on the same day. As the judgment was not final, the court had the power to grant the new trial either on its own motion or on appellee’s motion. Ex parte Godeke, 163 Tex. 387, 355 S.W.2d 701 (1962). The court did not err in granting the motion for new trial.

The judgment is affirmed.

Affirmed.


author: CIRE, Justice.

text:
    Anna B. SCHULTZ, Appellant, v. CITY OF HOUSTON, Appellee.
    No. 1622.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 4, 1977.

      James Edward Robinson, Michol O’Con-nor, Kronzer, Abraham & Watkins, Houston, for appellant.
    Otis H. King, City Atty., Willard E. Doll-ahon, Senior Asst. City Atty., Houston, for appellee.
   CIRE, Justice.

Plaintiff in a personal injury action appeals from the granting of a summary judgment for defendant.

Appellant Anna B. Schultz sued the City of Houston, appellee, alleging she was injured on September 24, 1970, when she slipped and fell on a wet driveway at Houston Intercontinental Airport.

Appellant’s claim against the city was instituted on December 18, 1970, when her attorney sent notice of the claim to the mayor, city councilmen, and city secretary. This notice, among other things, contained a description of the accident and the injuries sustained, appellant’s address, the names and addresses of the witnesses upon whom she relied to establish her claim, and a statement that her damages would be approximately $50,000, “for which we will consider settlement of this claim.” The notice was sworn to by the attorney. He verified that the statements contained in it were “true and correct to the best of his knowledge and belief.”

The city answered and moved for summary judgment on two grounds: (1) it was immune from liability arising out of the operation or maintenance of the airport; and (2) the notice of claim failed to comply with the requirements of article IX, section 11 of the Houston City Charter (1968). The trial court granted the motion, entering judgment for the city.

Appellant brings this appeal on four points of error. The first point asserts the trial court erred in granting the city’s motion for summary judgment. This point allows argument as to all possible grounds upon which the summary judgment should have been denied. Malooly Bros. v. Napier, 461 S.W.2d 119, 121 (Tex.Sup.1970).

The second point complains of the error in granting summary judgment based on the ground that the city is immune from liability arising out of the operation and maintenance of an airport. We sustain these points.

The maintenance and operation of municipal airports is a governmental function. City of Corsicana v. Wren, 159 Tex. 202, 317 S.W.2d 516 (1958); Flippin v. City of Beaumont, 525 S.W.2d 285 (Tex.Civ.App. —Beaumont 1975, no writ); Tex.Rev.Civ. Stat.Ann. art. 46d-15 (1969). The city is shielded from liability for performance of such a function unless the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19 (1970), waives the city’s immunity. Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.Sup.1976).

Considering the pleadings and the deposition on file, we are of the opinion that appellee has not sustained its burden on summary judgment by establishing that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.Sup.1970); Tex.R.Civ.P. 166-A.

We find that appellant’s pleadings and deposition show a cause of action within the Texas Tort Claims Act. The deposition of James P. White, an airport security officer who witnessed the accident, was before the court. White testified that he saw appellant fall, that the driveway had been washed down with a scrubbing machine using soapy water within the previous half-hour, that the soapy water left on the driveway was more slippery than water without soap, that the driveway appeared wet but that a person could not tell there was soap in the water, and that there were no signs warning of the slippery surface.

Appellant’s third point assigns error in the granting of summary judgment because appellee failed to prove as a matter of law that her notice of claim was insufficient. This point is sustained.

Appellee alleges that appellant’s notice failed to comply with the city charter’s provisions in two respects. First, it claims that the notice was not “duly verified.” Appellee asserts the notice must be sworn to as “true and correct,” not “true and correct to the best of [the attorney’s] knowledge and belief.” We disagree. These notice provisions, being in derogation of common right, should be construed with reasonable strictness in favor of claimants. See Cawthorn v. City of Houston, 231 S.W. 701, 704 (Tex.Comm’n App.1921, holding approved). We recognize the long established rule in Texas that affidavits must be sworn to on personal knowledge and that those sworn to on best knowledge and belief are insufficient. Wilson v. Adams, 15 Tex. 323, 324 (1855). But we believe a different rule applies in this instance. The charter requirements for the notice of claim call for more than a recitation of facts. It actually requires some amount of conjecture and speculation on the part of the affiant. Moreover, it allows verification by “someone in his behalf” which necessarily accepts reliance on hearsay rather than on personal knowledge. For example, in Gardner v. City of Houston, 320 S.W.2d 715 (Tex.Civ.App. — Houston 1959, no writ), the court explained that a person claiming as yet unliquidated damages could only honestly swear to the amount of damages claimed, not to the amount of damages sustained as required by the charter; and where a claim is asserted against the city on behalf of the estate of a deceased claimant, practically none of the charter requirements could be sworn to on personal knowledge by the estate’s representative. Likewise, as here, where the attorney files the claim for his client, his recitation of when, where, and how the accident occurred, the residence of the claimant at the time the claim is presented, and the claimant’s residence for the preceding six months is based on information given by the client. The attorney could not swear to these statements on his personal knowledge. We hold the verifications contained in the notice sufficiently complied with the charter.

The other portion of the notice that appellee claims was defective was the statement that damage to appellant “will amount to approximately Fifty Thousand ($50,000) Dollars, for which we will consider settlement of this claim.” Appellee contends this language does not comply with the charter’s requirement of a statement of “the amount for which claimant will settle.” The purpose of a statement of damages is to facilitate settlement of the claim or preparation for trial. City of Houston v. Holden, 336 S.W.2d 193, 195 (Tex.Civ.App.— Eastland 1960, writ ref’d n.r.e.). The statement of appellant’s expected damages, for which she would consider settlement, suffices for this purpose. We cannot imagine a situation where the claimant would refuse to accept a settlement offer for the full amount of damages allegedly sustained.

In her fourth point, appellant asserts that summary judgment based on the alleged notice defects was improperly granted because the city had actual notice of her claim. In view of our holdings on the other points of error, we do not consider it necessary to decide this point.

The judgment of the trial court is reversed and the case remanded for trial.

J. CURTISS BROWN, C. J., not participating.


author: MASSEY, Chief Justice.

text:
    Thomas P. READ, Jr., Individually and as Independent Executor of the Estate of Ruth Cole, Deceased, et al., Appellants, v. Ruth GEE, Independent Executrix of the Estate of Laura Freeland, Deceased, Appellee.
    No. 17829.
    Court of Civil Appeals of Texas, Fort Worth.
    May 5, 1977.
    Rehearing Denied June 2, 1977.

      Wm. A. Nobles, Decatur, for appellant independent executor.

      Wayne A. Melton, Dallas, for individual appellants.
    Stark, Barnhart & Moore, and Richard S. Stark, Gainesville, Andress, Woodgate & Lodewick, and Wm. Andress, Jr., Virgil R. Sanders, Dallas, for appellee.
   OPINION

MASSEY, Chief Justice.

This is an appeal from a judgment of the District Court which ordered the Independent Executor of the Estate of Ruth Cole, Deceased, to deliver over unto the Independent Executrix of the Estate of Laura Preeland, Deceased, all the assets of the estate of Ruth Cole. The appeal is not only by the aforementioned independent executor, but also by those who claim benefit by the will of Ruth Cole whose claims would be extinguished by the order.

We reverse the judgment order and remand the cause to the trial court by reason of our holding that there was want oí due process of law in the proceedings pursuant to which the judgment was rendered.

While Ruth Cole was alive she made her will, consisting of two pages. When she died, Laura Freeland, her sister, was still alive. Ruth Gee was the daughter of Laura Freeland, and when she died the daughter became executrix of the mother’s estate. By the time of Laura Freeland’s death all the parties to the instant appeal had become adversaries in litigation. Such litigation concerned whether the Ruth Cole will consisted of one or of two pages. The Freeland contention was that the will consisted of only the single first page, the apparent meaning of such page being that if Freeland survived Cole she would take the entire Cole estate. The adversary contention was that the will consisted of two pages, the apparent provision of the second page being that there would be overriding specific bequests of the will to Thomas P. Read, Jr., and others of the nieces and nephews of Mrs. Cole.

It is not to be inferred by this opinion that this court has arrived at any conclusion; what is expressed is that which was the conclusion of the parties, at least upon a former occasion.

The two-page will was admitted to probate in the County Court of Wise County, Texas; but thereafter and within the proper time Laura Freeland and her daughter, Ruth Gee, filed their contest in County Court. Following trial the County Court denied the Freeland and Gee contest and they appealed from the denial to the District Court for trial de novo. Mrs. Freeland died while the case was pending in District Court and Ruth Gee became independent executrix of the Freeland estate. In that posture the ease was tried to a jury in the District Court and upon the jury verdict the will contest was denied. Therefrom Ruth Gee, independent executrix for the Free-land estate, perfected appeal to the Court of Civil Appeals.

February 1, 1975, the Court of Civil Appeals affirmed the judgment of the District Court denying the contest of the Cole will; the court delivered its unpublished opinion in justification of its decision. Ruth Gee applied for writ of error to the Supreme Court of Texas, which application was by the Supreme Court denied with notation of “No Reversible Error”.

Thereafter, in the same District Court in which the will contest had been tried, Thomas P. Read, Jr., Individually and as Independent Executor of the Estate of Ruth Cole, Deceased, along with all the claimant beneficiaries except Ruth Gee, Independent Executrix of the Freeland Estate, amended their petition in the suit for will construction and sought declaratory judgment of the Ruth Cole will and order for proper distribution of the estate property. This suit had pended even before completion of the contest over whether the will consisted of one page or of two pages. Such having finally been resolved, the proper point in time was reached whereby there should be estate distribution by the executor of the Cole estate, and, obviously, in view of the adversary posture of the parties there was necessity for construction of the will, and/or, in any event, the court’s decision upon the proper distribution, in order that the executor might safely proceed. This would be advisable whether there was or not any ambiguity in the will.

From the transcript brought forward on appeal there apparently had never been any hearing set for final disposition of the suit for declaratory judgment by the independent executor, et al. The following is shown to have occurred:

(a) March 27, 1976, there was held a pretrial hearing upon the motion of Mrs. Gee, independent executrix for the Freeland estate, to dismiss as party to the suit the independent executor Thomas P. Read, Jr. Though the order relative thereto was not signed until April 2, 1976, there had obviously been a pronouncement by the judge of the court on March 27th that, in his representative capacity, Read would be dismissed as party to the suit upon pleadings to which exceptions had been taken by Mrs. Gee. The order recited the following: “Thomas P. Read, Jr., in his representative capacity as Executor of the estate of Ruth Cole, Deceased, is hereby dismissed as a Party Plaintiff in the above entitled and numbered cause; provided however, such Party Plaintiff in such representative capacity may amend his pleadings in this cause to set out a cause of action against the Defendant.”

(b) April 1, 1976, Thomas P. Read, Jr., in his capacity of independent executor, joined by all the other parties allied with him in his individual capacity, filed in the case their plaintiffs’ second amended original petition. It is obvious that this amendment was to meet the provision of the order of the court, which, as indicated above, was not signed until April 2, 1976.

(c) April 2, 1976, there was apparently conducted a second pre-trial hearing upon exceptions of Ruth Gee taken to the amended petition filed April 1, 1976. There is some doubt of the fact, for while we have before us what is a full and complete transcript save for the court’s docket sheet, the “order” which is included is neither dated nor signed and does not reflect any file mark by the clerk of the court. In the body thereof is included the words: “To all adverse rulings, Defendant duly objected, and it is so noted.” The defendant was Mrs. Gee, executrix. Though the body reflects rulings sustaining exceptions of Mrs. Gee, most of her exceptions were apparently overruled.

(d) April 5, 1976, by order signed by the judge of the court, was reflected an “Order of Non-Suit”. It reads: “On the motion of the Plaintiffs the above entitled and numbered cause is hereby dismissed without prejudice to the right of Plaintiffs to re-file such cause, and at Plaintiffs cost.”

(e) April 29, 1976, another order was signed by the judge of the court. In part it reads: “The order of non-suit dated 5 April 1976, heretofore made herein, not being a final judgment disposing of all issues is hereby set aside. (Paragraph) On motion of the plaintiffs, Thomas P. Read, Jr., individually and as Independent Executor of the Estate of Ruth Cole, deceased, W. T. Read, Carl Read, Jr., Tennessee Sendak, Doris Bogart, Marie Elliott, and Iva Ruth Rhodes, the plaintiffs’ cause of action is hereby dismissed without prejudice to the right of plaintiffs to re-file such cause, and at plaintiffs’ cost (emphasis supplied). (Paragraph) It appearing to the Court that the defendant Ruth Gee as Independent Executrix of the Estate of Laura Freeland, deceased, has in her second amended answer asked for affirmative relief against the plaintiff Thomas P. Read, Jr., as Executor of the Estate of Ruth Cole, deceased, and that she is entitled to such relief because of the fact that as a matter of law there is no ambiguity in the will of Ruth Cole, deceased . ... Thomas P. Read, Jr., as Executor of the Estate of Ruth Cole, deceased, is legally obligated to deliver all of said assets to the defendant in her representative capacity; . . . .” Thereafter was language directing such executor to deliver over to Ruth Gee, executrix, all the assets of the Cole estate. This was the order from which appeal was taken.

Thomas P. Read, Jr., executor, was not present either in person or by attorney, at the proceedings pursuant to which the order of April 29, 1976 was signed and entered. As executor he was represented by a separate attorney. Along with the other plain- ■ tiffs in their individual capacities there was individual representation by another attorney. This attorney was present and protesting conduct of the proceedings. He requested and obtained the presence of the court reporter to make a record. From the reporter’s record the following is reflected:

(Proceedings of April 29, 1976)
MR. MELTON: Your Honor, before we start, may I ask a question. I have asked the court reporter to record this because I feel frankly, that I am a little put upon having been called over here under these circumstances, and I would like to know if the Court set this matter for hearing at this time and directed me to be here, and if so, what is it that we are going to hear.
I received a telephone call day before yesterday at 1:30 p. m. from Mr. Andress (the Gee attorney) saying that he had arranged with you to hear this matter today at eleven. That is less than forty-eight hours notice.
I immediately called Mr. Nobles (the attorney for Thomas P. Read, Jr. in ca-' pacity of executor) in Decatur to find out if he was aware of any reason for a hearing on anything that had been filed in the lawsuit in Decatur and he was, and neither was he aware or had been informed of any hearing scheduled for down here today (at Forth Worth before the judge assigned to hear the case in Decatur). We both had other commitments. He could not get out of his which involved a utilities rate hearing. I can-celled my docket to get over here because I had considerable concern about what is going to happen. I am here because I suspect something and not because I feel there is anything before the Court nor that the Court has even set this matter. Here we are in Fort Worth. This is a case in Decatur, of course, I have no knowledge of any motions or any post trial matter to be set to which I am expected to respond, and I wish this record to reflect that I am complaining and objecting to the notice that I received or lack of notice, and the fact that there is apparently, to my knowledge, in the record in Decatur in the papers in this cause, where the docket and the jacket is, no motion, no nothing for hearing by the Court at this time or any other time.
THE COURT: Well, I just told Mr. Andress that if he could get the parties together, I would be glad to meet with you here in Fort Worth and that is about all that was said.

No evidence was presented at the meeting of which the record was made. Following the discussion and argument, there was entry of the order of April 29, 1976. The parties plaintiff who were present never agreed to anything and never waived any right.

We first dispose of the motion to dismiss as party to the appeal Mr. Thomas P. Read, Jr., in his capacity of executor. We overrule the motion to dismiss and retain him as a party appellant in his representative as well as his individual capacity.

As heretofore mentioned, we have determined that the judgment order from which the appeal has been taken should be reversed, with the cause remanded for trial.

This we do on the premise that there was want of due process of law guaranteed by both the Federal and State Constitutions. The thrust of nearly all of the points of error presented by the appeal directly points to such as the premise for complaint, though the term “due process” is never mentioned. Appellee could not have been misled; anyway the want of due process of law in the entry of the judgment which made final disposition of the case is reflected by the record itself and therefore would be fundamental error which the court could consider even without assignment.

All our quotations of expressions upon the law relative to due process are to be found in the case of Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). These are:

“A fundamental requirement of due process is ‘the opportunity to be heard.’ ”

“ ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

“Questions frequently arise as to the adequacy of a particular form of notice in a particular case. (Cases cited.) But as to the basic requirement of notice itself there can be no doubt, where, as here, the result of the judicial proceeding was permanently to deprive a legitimate parent of all that parenthood implies.”

On the statement last made the same could also properly be said as applied to the deprivation of any other right justifiably accorded by provisions of law. Even apart from the due process aspect of the case, there is want of conformity to the provisions of T.R.C.P. 21a, “Notice”.

The third to sixth points of error, inclusive, of the individual plaintiffs/appellants are sustained and the third to sixth points of error, inclusive, of plaintiff/appellant Thomas P. Read, Jr., Independent Executor of the Estate of Ruth Cole, Deceased, are sustained. All other of the points of error are overruled as immaterial to the decision to be made on the immediate appeal. We do, however, take occasion to observe that whatever the outcome on retrial the preferable practice for payments and distribution would be best provided to be conducted under the authority of the Probate Court, actual or potential, rather than under authority of a district court not vested with probate jurisdiction.

Judgment is reversed, with the cause remanded for trial.

HUGHES, J., not participating.


author: McDONALD, Chief Justice.

text:
    Herbert PEBSWORTH et ux., Appellants, v. Henry A. BEHRINGER et ux., Appellees.
    No. 5732.
    Court of Civil Appeals of Texas, Waco.
    May 5, 1977.
    Rehearing Denied June 9, 1977.

      Bill Vannatta, Clark & Vannatta, Waco, for appellants.
    Vance Dunnam, Dunnam, Dunnam & Dunnam, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs Pebsworth from summary judgment they take nothing in their trespass to try title suit for the north one-half of a 7.81 acre tract in the J. A. Manchaca Survey, McLennan County, Texas; (and further decreeing fee simple title to such property in defendants Beh-ringer).

Plaintiffs Pebsworth sued defendants Behringer in trespass to try title for the north one-half of the 200 foot wide former railroad easement containing approximately 3.905 acres. Plaintiffs claimed record title as well as title by limitations. Defendants answered by general denial and plea of not guilty.

L. Cohen is common source of title and owned all of Block 5 in 1893. 1) On April 1, 1901 Cohen conveyed to Calvert, Waco & Brazos Valley Railroad a railroad right-of-way easement over the 7.81 acres. 2) On November 26, 1901 Cohen conveyed to W. E. Hall 6¼ acres from Lot 5 being all the land lying between the “railroad right-of-way * * and lot 6”. 3) On October 27, 1905 Cohen conveyed Block 5, “100 acres of land less 8 acres sold to * * railroad and about 6 acres sold to Hall” to Herman Miller.

The land described in the deed from Cohen to Hall passed by a regular chain of conveyances to Dulaney, and from Dulaney to defendant Behringer in 1947.

The land described in the deed to Miller passed by a regular chain of conveyances to Strunck and wife, and from the Struncks to plaintiffs Pebsworth on November 4, 1966.

The railroad abandoned its right-of-way in 1970 and quitclaimed such right-of-way to the Pebsworths in 1975.

Both sides moved for summary judgment.

The trial court granted summary judgment that plaintiffs take nothing and decreed title and possession of the north or northwest one-half of the 7.81 acre tract conveyed by Cohen to the railroad for railroad right-of-way in defendant Behringer.

Plaintiffs appeal on 3 points contending the trial court erred:

1) In not granting plaintiffs summary judgment.
2) In granting defendants summary judgment.
3) In granting defendants summary judgment because there are fact issues as to limitations.

The trial court in rendering summary judgment for defendant applied the “strip and gore” doctrine of construction to deeds, and decreed title to the north one-half of the 7.81 acres was in Behringer.

Common source of title was Cohen. In April 1901 Cohen conveyed a 7.81 acre strip thru his land to the railroad for right-of-way. In November 1901 Cohen conveyed to Hall 6¼ acres which had been cut off from the remainder of his land by the railroad right-of-way. Behringer now owns the 6¼ acres conveyed to Hall.

In 1905 Cohen conveyed Block 5, “100 acres less 8 acres sold to * * railroad and about 6 acres sold to Hall” to Miller. Pebs-worth now owns the property sold to Miller.

A deed to land abutting on a railroad right-of-way conveys title to the center of the right-of-way unless the contrary intention is expressed in the instrument. State v. Fuller, Tex., 407 S.W.2d 215, Angelo v. Biscamp, Tex., 441 S.W.2d 524.

In the 1901 deed from Cohen to Hall there was no contrary intention expressed.

We think the trial court properly applied the “strip and gore” doctrine of construction, and that title to the north one-half of the 7.81 acres railroad right-of-way tract is in Behringer.

Plaintiffs’ point 3 asserts the trial court erred in granting defendants summary judgment to the north one-half of the 7.81 acre strip because there are fact issues on the question of limitations.

Plaintiffs plead that the railroad abandoned the right-of-way in 1970 and that plaintiffs took possession of the premises, improved same, used same, and paid the taxes on said property and has thereby matured title by limitations. No exception being levelled at such pleadings, same are sufficient to plead limitation under Articles 5507 and 5508, or 5509 VATS. Lewter v. Dallas County, CCA (Waco) NRE, 525 S.W.2d 885.

Articles 5507 and 5508 permit a person in peaceable and adverse possession under title or color of title to mature title of limitation in 3 years. The Pebsworth title deraigns from the Cohen to Miller conveyance, and Pebsworths’ deed expressly excepts from its terms “7¾ acres of land occupied by the * * railroad right-of-way, and the 6⅛ acres conveyed to W.E. Hall * *.” Article 5509 requires adverse possession for 5 years under a deed. Pebs-worth acquired quitclaim deed from the railroad to the property in 1975. The five-year holding is not met.

All plaintiffs’ points and contentions are overruled.

AFFIRMED.


author: ROBINSON, Justice. REYNOLDS, Justice,

text:
    H. Jack OAKES, Appellant, v. AETNA CASUALTY & SURETY CO. et al., Appellees.
    No. 8728.
    Court of Civil Appeals of Texas, Amarillo.
    May 9, 1977.
    Rehearing Denied June 6, 1977.

      McCracken, Smith, Shields & Taylor, H. C. McCracken, Carrollton, for appellant.
    Greenberg & Bach, Robert M. Greenberg, Dallas, for appellees.
   ROBINSON, Justice.

Defendant insurance companies failed to get approval as required by Tex.Ins.Code Ann. art. 5.06 (1951) of the policy forms for insurance which they were writing for plaintiff agent’s clients. Plaintiff insurance agent alleges that this failure was a breach of the companies’ agreement with him and the cause of the suspension of his license and consequent damage. The trial court entered summary judgment for the defendants. Plaintiff appeals. Reversed and remanded.

In an. appeal from a summary judgment the question is not whether the summary judgment proof raised fact issues with reference to essential elements of a cause of action, but whether the summary judgment proof established as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). The burden of proof is on the mov-ant and all doubts as to the existence of a genuine issue of material fact are resolved against him. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972); Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965).

In the case before us, appellee defendants have the burden of establishing as a matter of law by summary judgment evidence facts which would entitle them to judgment.

By his petition, plaintiff alleges a cause of action as follows: H. Jack Oakes was a Texas insurance agent with lease operator clients. He solicited certain automobile liability and physical damage coverage for lease operators from Aetna Life and Casualty Company, and Aetna Casualty and Surety Company. Aetna agreed to provide the coverage and, pursuant to the agreement, Aetna’s employee, Frank H. Haynes, prepared a written memorandum describing the coverage to be provided the lease owner-operators. Oakes alleges that it is customary for an insurance company writing business in the State of Texas to assure and verify that all forms, policies, and coverages it uses have been approved by the Insurance Commissioner’s office before issuing a contract with regard to coverage; that a representation that Aetna had secured approval of the forms in question was implicit in its agreement with Oakes; and that Oakes relied on Aetna to secure the necessary approval. Aetna did not secure approval of certain of the endorsements as required by Art. 5.06, Texas Insurance Code, but issued the policies. Because of the improper issuance, the policies were cancelled; Oakes’ license was revoked for five months; and Oakes lost commissions and customers.

Defendants have not offered summary judgment evidence to dispute the facts alleged by plaintiff. Instead they contend that, even if the allegations are true, plaintiff is precluded from recovery because of the rule that a court will not aid either party to an illegal agreement but will leave the parties where it finds them. See Cox Feedlots, Inc. v. Hope, 498 S.W.2d 436, 438 (Tex.Civ.App. — San Antonio 1973, writ ref’d n. r. e.), and cases therein cited.

Defendants correctly state that the issue which presents itself to the court is whether or not the arrangement between plaintiff Oakes and the defendants was illegal.

It is apparent that an agreement to issue insurance policies that have not been approved by the insurance board is illegal. But plaintiff has not alleged such an agreement. He has alleged that he entered an agreement for the issuance of policies for which defendants were to obtain approval and that the illegality occurred only because of defendants’ failure to perform their obligation under their agreement with him.

The question, then, is whether Oakes had a right to rely on defendants to secure the required approval of policy forms and on an implied representation that they had done so.

In considering the question we note that the alleged implied representation was not that a policy could legally be issued without board approval, but rather that the company had, in fact, applied for and received such approval. The alleged misrepresentation was one of fact rather than of law.

Defendants cite Armstrong v. Tidelands Life Insurance Company, 466 S.W.2d 407 (Tex.Civ.App. — Corpus Christi 1971, no writ) as authority for their contention that as a matter of law plaintiff was not entitled to rely on the insurance companies to secure the required approval.

The court in Armstrong, citing Perkins v. Lambert, 325 S.W.2d 436 (Tex.Civ.App.— Austin 1959, writ dism’d), held that an agent may not enforce an agreement for commissions, if he has not complied with Art. 21.01 of the Texas Insurance Code which provides in part:

It shall not be lawful for any person to act within this State, as agent or otherwise, in soliciting or receiving applications for insurance * * * without first procuring a certificate of authority from the Board.

In Armstrong, the agent contended that he relied on the insurance company’s representation that it would secure the certificate of authority for him. The court held

Since the statutes impose the obligation on the agent himself not to act as an insurance agent until he has procured the Certificate of Authority, Armstrong, in this case cannot base an action for damages on his allegation of fraud since as a matter of law he was not entitled to rely on Tidelands’ alleged promise to procure the Certificate of Authority.

We then consider the facts alleged in the case before us in the light of that holding. Here, the obligation which was violated is set out in Art. 5.06, Insurance Code, as follows:

Policy Forms and Endorsements.

In addition to the duty of approving classifications and rates, the Board shall prescribe policy forms for each kind of insurance uniform in all respects except as necessitated by the different plans on which the various kinds of insurers operate, and no insurer shall thereafter use any other form in writing automobile insurance in this State; provided, however, that any insurer may use any form of endorsement appropriate to its pian of operation, provided such endorsement shall be first submitted to and approved by the Board; and any contract or agreement not written into the application and policy shall be void and of no effect and in violation of the provisions of this sub-chapter, and shall be sufficient cause for revocation of license of such insurer to write automobile insurance within this State. (Italics added.)

Article 5.06 places on the insurance company the obligation to submit endorsements to the Board and secure Board approval of them before their use. There is no provision for the agent to secure such approval. Thus, the holding in Armstrong does not control the cause before us.

Defendants have failed to sustain their burden to establish by summary judgment evidence that plaintiff did not have a right to rely on the defendants to secure the required approval. Likewise, they have failed to establish that there is no fact issue on some other element of plaintiff’s cause of action.

The judgment of the trial court granting summary judgment is reversed and the cause remanded.

REYNOLDS, Justice,

concurring.

I concur in the reversal and remand.

By moving for summary judgment, the defendant insurance companies assumed the burden of showing that, as a matter of law, plaintiff could not recover on his pleaded allegations. Gaddis v. Smith, 417 S.W.2d 577, 582 (Tex.1967). To discharge this burden, they were required to establish that there is no genuine issue of fact as to at least one of the essential elements of plaintiff’s cause of action, “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934, 936 (Tex.1972), and that they were entitled to judgment as a matter of law. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41, 47 (Tex.1965). Their failure to establish the absence of genuine issues of material fact precluded summary judgment.


author: RAY, Justice.

text:
    CENTURY PAPERS, INC., Appellant, v. Charles C. PERRINO, Appellee.
    No. 8409.
    Court of Civil Appeals of Texas, Texarkana.
    May 10, 1977.
    Rehearing Denied June 7, 1977.

      Ernest Altgelt, III, Michael S. Wilk, Hirsch, Westheimer, Block & Wilk, Houston, for appellant.
    Howard G. Barker, S. G. Johndroe III, Cantey, Hanger, Gooch, Múnn '& Collins, Fort Worth, for appellee.
   RAY, Justice.

Charles C. Perrino, appellee (plaintiff), brought suit against Century Papers, Inc., appellant (defendant), for breach of an employment contract. Perrino claimed to have been discharged without cause. Century answered that Perrino was unable to perform his duties and responsibilities, and that under such circumstances his discharge was specifically sanctioned by the contract. Trial was held before the court without the aid of a jury and judgment rendered for Perrino. Findings of fact and conclusions of law were filed by the trial court.

Century has perfected its appeal and submits five points of error for our consideration. Appellant asserts there is no evidence to support the court’s fact findings related to Perrino’s performance of his contractual duties, to just cause for his dismissal, or to his ability to perform his contractual duties. Century further asserts that damages were wrongly assessed when the trial court failed to properly consider Century’s offer to reemploy Perrino, Perrino’s probable life expectancy, and Perrino’s receipt of unemployment compensation.

On January 8,1971, Perrino sold his retail packaging company in Dallas to Century and agreed to go to work for the Houston based corporation which had been his competitor in the wholesale distribution of paper products. Century agreed to employ Perrino for ten years at a salary of $15,-000.00 per year. The contract provided for termination by Century at any time for “just cause.” The term “just cause” is defined to include the following:

“(g) Inability on the part of Perrino to perform his duties and responsibilities hereunder on account of illness or other incapacity, either physical or mental, continuing for a period of more than ninety (90) days.”

The contract as written neither specifies nor describes the services to be rendered by Perrino. He was required only to “. devote his best efforts and his entire working time to further the interest of Company

On January 13, 1971, the president of Century issued a memorandum to its managerial personnel describing the desired effect of the employment of Perrino and the absorption of his company. Perrino was to become the manager of Century’s Dallas Apparel Mart showroom. He was to solicit retail packaging and store display business from prospects attending the shows, make direct customer calls on accounts in the Dallas-Fort Worth area, and assist salesmen from various offices when requested to do so by distribution center managers.

Further indication of Perrino’s duties and responsibilities was presented in a second memorandum to corporate personnel on October 12, 1973. The Apparel Mart showroom was to be closed when no market was being held for several stated purposes, including that of freeing Perrino for more effective outside sales assistance.

All went well until January 22, 1974, when Perrino suffered a heart attack. He was released from the hospital on February 6, 1974, but dispute remains as to the degree to which performance of his duties was impaired. From March 4 to March 15,1974, Perrino handled routine business at the Apparel Mart. After that time his physicians advised him that his condition had deteriorated and that prolonged rest was necessary. Perrino, however, continued to appear at the Apparel Mart and attended market shows. Some discussion of the possibility of a leave of absence ensued but without finality.

Century’s sales had to some extent declined with Perrino’s health. The duties he had performed in preparation for the shows were no longer being performed. The corporate president became convinced that Perrino was not performing any substantial work, and on April 29,1974, issued notice of termination.

By its first point of error the appellant asserts that it was justified in terminating Perrino’s contract of employment because of his inability to perform his duties and responsibilities, and that findings of the trial court to the contrary are without support.

There is no dispute over the nature and extent of services rendered by Perrino after his heart attack. The services were limited. Dispute exists as to whether the performance of these services fell below what was required by the contract.

The appellant contends that Perrino was bound to perform all duties alluded to in the memoranda to corporate personnel of January 13, 1971, and October 12, 1973. It is urged that these memoranda constitute modifications of the general terms of the original contract.

The determination of the existence of a modification of the contract depends upon the intent of the parties and is therefore a question of fact. Stowers v. Harper, 376 S.W.2d 34, 39 (Tex.Civ.App. Tyler 1964, writ ref’d n.r.e.); 56 C.J.S. Master and Servant § 131(2). Century requested no finding and made no conclusive showing that modification of the employment contract was accepted. Perrino was therefore entitled to insist upon compliance with the termination provision of the contract as written. American Brake Shoe Company v. Coombs, 418 S.W.2d 841 (Tex.Civ.App. Corpus Christi 1967, writ ref’d n.r.e.).

It became the duty of the finder of fact to determine whether the employer had “just cause” to terminate under the contract. Ward v. Consolidated Foods Corporation, 480 S.W.2d 483, 486 (Tex.Civ.App. Waco 1972, writ ref’d n.r.e.). The trial court’s finding of fact that the contract was not terminated for just cause is supported by the evidence. There is, indeed, no evidence of anything Perrino failed to do which would constitute a breach of any duty owed under the contract. Zuider Zee Oyster Bar, Inc. v. Martin, 503 S.W.2d 292, 293 (Tex.Civ.App. Fort Worth 1973, writ ref’d n.r.e.). The appellant’s first point of error is overruled.

Appellant’s second point of error is as follows:

“Perrino failed to prove by a preponderance of the evidence that he was able to perform his contractual duties and the trial court’s finding of fact that Perrino was able to perform is supported by no evidence.”

The evidence of the state of Perrino’s health is conflicting. However, in light of the general description of the obligations under the contract, the trial court’s finding that Perrino was ready and able to perform cannot be said to be in error as a matter of law. Point of error No. II is overruled.

Appellant states in its third point of error that no recovery can be had against it because it offered to reinstate Perrino. This offer was supposedly contained in the notice of dismissal. In being notified that his contract was being terminated, Perrino was advised that if he desired to return to work after he had been operated upon, if his health permitted, and if his doctors and Century’s doctors approved, the matter would be discussed.

The appellant cites Texas Benev. Assoc, v. Bell, 3 Willson, Civ.Cas.Ct.App. § 277, P. 335 (1887), in which it was held that when a discharged employee is offered the same or like employment as that from which he has been discharged, for the same period and upon the same terms, and before he has sustained any injury by reason of the discharge, no damages can be recovered. 72 A.L.R. 1049, 1054; see also 38 Tex.Jur.2d, Master and Servant, Sec. 23, Note 10.

In the instant case, the terms and conditions of re-employment were uncertain from the offer of Century. The offer was at best a tenuous and offhand reference to future possibilities included in the termination notice to soften the blow of the dismissal. It did not reflect an unconditional offer of re-employment upon the fulfilling of specific conditions precedent. The trial court’s finding that appellant’s breach of the employment agreement was absolute and at no time did appellant offer to reinstate said employment agreement is supported by some evidence and was a fact question to be determined by the trier of facts. Whether or not Century offered to reinstate the employment agreement was a defensive matter upon which appellant had the burden of proof and the burden of persuasion. We cannot say as a matter of law that appellant offered to reinstate the employment agreement and therefore appellant’s point of error No. Ill is overruled.

Appellant’s fourth point of error asserts that the trial court erred in arbitrarily disregarding undisputed evidence of Perrino’s life expectancy in assessing future damages. The trial court found that appellant was not entitled to any discount of sums due and owing to Perrino by reason of the asserted lessened life expectancy. The expert opinion testimony concerning appel-lee’s life expectancy was undisputed but not unequivocal. A physician specialized in cardiovascular disease stated that Perrino’s life expectancy would be difficult to calculate, but that the average yearly mortality rate for persons with his condition was about ten to twelve percent for about five years, declining after that.

The trial court was not bound to apply the expert’s opinion to calculate ap-pellee’s life expectancy. It is well settled that the opinion testimony of experts, even when uncontroverted, is not conclusive and binding on the finder of facts. Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943, 945 (1944); Broussard v. Moon, 431 S.W.2d 534, 537 (Tex.Sup.1968).

The trial court’s decision to disregard as inconclusive the expert testimony of the probabilities of Perrino’s life expectancy cannot be said to be in error. Appellant’s fourth point of error is overruled.

Appellant’s fifth point of error complains of the trial court’s failure to deduct from damages awarded the amounts received and to be received as unemployment compensation. No Texas case has been cited or discovered which directly weighs such compensation in an award of damages for breach of an employment contract.

The general rule in assessing damages for breach of contract is that the employer is entitled to a set-off for any amounts the employee could or should through the exercise of due diligence earn through other employment. Dixie Glass Co. v. Poliak, 341 S.W.2d 530, 538 (Tex.Civ.App. Houston 1960, writ ref’d n.r.e.); Galveston County v. Dude, 91 Tex. 665, 45 S.W. 798, 800 (1898). These cases and the general rule are distinguishable in the instant case if unemployment compensation is not viewed as earned income. Compensation for a loss received by a plaintiff from a collateral source cannot generally be considered in litigation of damages for personal injury. Kainer v. Walker, 377 S.W.2d 613 (Tex.Sup.1964); 25 C.J.S. Damages § 99(1). Courts in other jurisdictions have applied the collateral source doctrine to the receipt of unemployment compensation by one bringing suit for breach of a contract of employment. 22 Am.Jur.2d, Damages, Sec. 209; Burens v. Wolfe Wear-JJ-Well Corporation, 236 Mo. App. 892, 158 S.W.2d 175 (1942); Bang v. International Sisal Co., 212 Minn. 135, 4 N.W.2d 113 (1942); Billetter v. Posell, 94 Cal.App.2d 858, 211 P.2d 621 (1949). There is no sound reason in the law or in policy for this Court to hold to the contrary. The benefits received from unemployment compensation were intended to alleviate the distress of unemployment, not to diminish the amount which an employer must pay as damages in making whole a wrongfully discharged employee. Appellant’s fifth point of error is overruled.

The judgment of the trial court is affirmed.