author: BISSETT, Justice.

text:
    Mrs. A. M. "Billie” PICKARD et al., Appellants, v. Gregorio CASTILLO et al., Appellees.
    No. 1215.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 31, 1977.

      Michael Swan, Jeffrey Davis, Houston, for appellants.

      Leota Roesch, James A. Herrmann, Har-lingen, for appellees.
   OPINION

BISSETT, Justice.

This is an appeal from an order of the District Court of Willacy County, Texas granting a temporary injunction and a writ of mandamus in a dispute concerning the proper polling places in the forthcoming school trustee election, which is to be held on April 2,1977. Suit was filed on March 3, 1977 by Gregorio Castillo, Marcelo Saenz and Nativadad Trejo against the Raymond-ville Independent School District and its Board of Trustees to enjoin the District and its Board of Trustees “from refusing to establish adequate polling places for the April 2, 1977 school election (of trustees)”. The plaintiffs in their preliminary statement stated that they sought “mandatory injunctive relief or in the alternative, a writ of mandamus” to compel the defendant trustees to provide “adequate polling places” for the election. In the prayer, plaintiffs specifically asked for a temporary restraining order, and “on hearing”, a temporary injunction, and for “a declaratory judgment that the failure of defendants to establish polling places within the boundaries” of certain county voting precincts deprived them of certain rights guaranteed them by both the State and Federal Constitutions. Numerous affidavits were attached to the petition.

A temporary restraining order was issued on March 4,1977, which restrained the trustees “from implementing the election order promulgated at the February 8, 1977 meeting” of the school trustees. A hearing on the request for a temporary injunction was set for March 14, 1977. The attorneys for all parties were present at the hearing. An order entitled “ORDER FOR TEMPORARY INJUNCTION AND WRIT OF MANDAMUS” was signed by the Judge on March 14, 1977, wherein the court stated that plaintiffs were entitled to a “Temporary Injunction and Writ of Mandamus” for the reason “that Plaintiffs will be irreparably injured in that their voting rights will be diluted and abridged if Defendants are not restrained from their proposed actions and ordered to take affirmative steps in establishing the requested polling places”. The order decreed, in part:

* * * * * *
“It is accordingly ordered, adjudged and decreed that the Clerk of Court issue a writ of injunction and a writ of mandamus pending final hearing and determination of this cause
1. Restraining and enjoining Defendant members of the RISD Board of Trustees from:
a. Refusing to establish polling places within the boundaries of Precinct 1 where a great many of the registered Mexican American voters reside.
2. Directing, ordering and commanding defendant to forthwith proceed with all reasonable dispatch to
a. Take the necessary steps to establish a polling place in addition to those already established at the American Legion Hall and the Community and Historical Center, to wit:
1. The polling place for Precinct 1 shall be at the L. C. Smith Elementary School.”
******

Defendants were served on March 3, 1977. Appearance day was March 28, 1977. Defendants perfected their appeal to this Court on March 22, 1977, when they filed the transcript and statement of facts. As of that time, they had not filed an answer to the plaintiffs’ petition.

' Defendants complain of the trial court’s actions in four points of error. In the first point, it is contended that the trial court was without authority to order the issuance of either a writ of temporary injunction or a writ of mandamus “for the reason that it was without authority to interfere in an election in progress”. We agree. In the third point, defendants assert that the order, which, in effect, established two polling places within one election precinct was “in violation of the Texas Election Code provision that there shall be one polling place, and no more, for any voting precinct”. We further agree.

No evidence was presented or introduced at the hearing on March 14, 1977. The statement of facts contains only conversations between the judge and counsel for both parties. There is nothing therein that remotely smacks of evidence. There is no showing of any agreement between the parties as is permitted by Rule 11, T.R.C.P.

The Court, in Sone v. Braunig, 469 S.W.2d 605, 611 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.), speaking through Justice Keith, noted:

“The purpose of Rule 11 ‘is to remove from the “fallibility of human recollection” agreements made by “counsel in the course of judicial proceeding which affect the interest of their clients”. . . . ’ ”

There is nothing in the record which intimates that the parties submitted any facts to the trial court which would, in effect, amount to an agreed statement of facts filed with the court, as authorized by Rule 263, T.R.C.P., nor is there an agreed statement of the case and of the facts proven, as provided by Rule 378, T.R.C.P.

The only facts that we can consider in disposing of the issues presented by this appeal are the statements made by defendants-appellants in their original brief which have not been challenged by plaintiffs-ap-pellees. Rule 419, T.R.C.P. The following factual statement is made by defendants:

“On February 8, 1977, at a duly called meeting of the Board of Trustees of the Raymondville Independent School District, Appellants promulgated their Election Order which, inter alia, called , the Trustee election for April 2, 1977, divided the School District into an east and west precinct and established a polling place centrally located in each precinct.”

That statement was not challenged by plaintiffs in their reply brief.

The Board of Trustees of the involved school district, pursuant to the authority vested in them by Tex. Education Code Ann. § 23.07(a) and Tex. Election Code Ann. § 2.02(c) ordered the regular election of trustees on February 8,1977, gave notice thereof that the election would be held on April 2, 1977, established two election precincts, and designated a polling place in each election precinct. In so doing, the Board was in complete compliance with Tex. Election Code Ann. § 2.02(h), which, in part, provides:

“ . . . There shall be one polling place, and no more, for each election precinct, and the notice of the election shall state the location of the polling place in each precinct.”

It has been a long established rule that once the election process commences, the courts of this State have no jurisdiction to interfere with the political rights of the people to hold an election, and by holding an election is meant every step pertaining thereto beginning with the order calling the election through its completion. City of Austin v. Thompson, 147 Tex. 639, 219 S.W.2d 57 (1949); City of Dallas v. Dallas Consolidated Electric St. Ry. Co., 105 Tex. 337, 148 S.W. 292, 294 (1912); Killam v. Webb County, 270 S.W.2d 628 (Tex.Civ.App. —San Antonio 1954, writ ref’d n. r. e.); Sams v. Sowell, 519 S.W.2d 526 (Tex.Civ. App.—Houston [14th Dist.] 1975, no writ.); Ellis v. Vanderslice, 486 S.W.2d 155, 159 (Tex.Civ.App.—Dallas 1972, no writ); Stroud v. Stiff, 465 S.W.2d 407 (Tex.Civ.App.—Amarillo 1971, no writ). See also the concurring opinion by Justice Nye (now Chief Justice) of this Court in Gonzalez, et ux v. King, et a 1. (Tex.Civ.App.—Corpus Christi, 1970; no writ, unreported) of date of this opinion, but which has now been ordered to be published.

In the instant case, the election process for the election of trustees for the Raymondville Independent School District commenced on February 8,1977. The order of the District Court of Willacy County that is under attack prevents the Board of Trustees of the Raymondville Independent School District from implementing the Election Order promulgated by the Board on that date. As a result, the election cannot now be held on the basis specified in the Election Order since an additional polling place is required. Moreover, that portion of the order which directs that a polling place be designated “at the L. C. Smith Elementary School” is in complete derogation of the mandatory provision of Tex. Election Code Ann. § 2.02(h), which unequivocally states that no more than one polling place shall be designated for each election precinct. The order, if carried out would provide for two polling places in one of the two established election precincts.

Furthermore, the entire election process is a matter for legislative regulation and control. State v. Reyna, 160 Tex. 404, 333 S.W.2d 832 (1960). As to such matters, the law does not purport to substitute the judgment of a judge (or jury) for that of duly elected officials, and the judiciary should not, in the absence of a clear mandate, interfere in the conduct of an election after the election process has begun, as it has done in this case. This is so, even though the election called and held is void. Winder v. King, 1 S.W.2d 587 (Tex.Comm’n. App.1928, jdgmt adopted).

Plaintiffs assert that the trial judge had the authority to grant the temporary injunction under the provision of Tex. Election Code Ann. § 14.14 (Supp.1976), which reads:

“The district courts of this state shall have jurisdiction to issue injunctions to enforce the provisions of this code upon application by any citizen of this state.”

We do not agree. Sec. 14.14 does not purport to authorize a district court to interfere with an election in progress. Furthermore, there is no allegation in the petition that the Board of Trustees violated any provision of the Election Code, or in some manner failed to abide by any provisions thereof, or' refused to perform any duty imposed upon it by the code. Sec. 14.14 has no application to the case at bar and does not vest jurisdiction in the trial court to grant the injunction that was granted in this case.

We hold that the district court was without jurisdiction to make the order that is attacked in this appeal. Under the record here presented, the granting of the temporary injunction and the provision for the issuance of a writ of mandamus constituted an interference with an election then in progress. Defendants’ first and third points are sustained.

There are other reasons why the order complained of should be vacated and set aside. Assuming, arguendo, that the trial court had jurisdiction to order the establishment of a third polling place, the record will not sustain the court’s granting of either a temporary injunction or providing for the issuance of a writ of mandamus to compel the establishment of an additional polling place.

We first consider the matter of the temporary injunction. As has been stated, plaintiffs did not introduce any evidence at the hearing, and there is no showing of any agreement between the parties as to facts. To authorize the issuance of a writ of temporary injunction, it was incumbent upon plaintiffs not only to plead facts which, if proved, would entitle them to in-junctive relief, but to offer evidence at the hearing which would prove their probable right thereto on final hearing and of probable injury in the interim. Sun Oil Co. v. Whitaker, 424 S.W.2d 216 (Tex.Sup.1968). No such proof is found in the record before us. Proof of facts which will support the granting of a temporary injunction is not made by the affidavits that are attached to plaintiffs’ petition. “Writs of injunction should not issue on mere surmise”, and “the conduct of a ‘hearing’ implies that evidence will be offered”. Millwrights Local Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683 (Tex.Sup.1968). The injunction must be dissolved. Defendants’ fourth point is sustained.

We now consider the trial court’s order that a writ of mandamus issue. That portion of the order is attacked by defendants in their second point of error.

Before a writ of mandamus can issue, the petitioner must show a clear right thereto. City of Richmond v. Allred, 123 Tex. 365, 71 S.W.2d 233 (1934); Fenner v. Brockmoller, 404 S.W.2d 369, 371 (Tex.Civ.App.—El Paso 1966, no writ); Southwestern Bell Tel. Co. v. Shell, 266 S.W.2d 476, 478 (Tex.Civ.App.—Fort Worth 1954, no writ); Harbert v. Owen, 26 S.W.2d 670, 671 (Tex.Civ.App.— Eastland 1930, no writ); Johnson v. Elliott, 168 S.W. 968, 972 (Tex.Civ.App.—Texar-kana 1914, writ dism’d). Plaintiffs did not meet the burden of clearly showing that they were entitled to a writ of mandamus in this case.

Mandamus lies to enforce the performance of a nondiscretionary act or duty and will issue only when the act or duty is ministerial in character. It does not lie to compel a public officer or board (such as a Board of Trustees) to act in matters involving the exercise of judgment or discretion, unless the officer or board refuses to exercise the discretion vested in him (it), or has clearly abused his or its discretion by arbitrary action. Grant v. Ammerman, 437 S.W.2d 547 (Tex.Sup.1969); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); Industrial Accident Board v. Glenn, 144 Tex. 378, 190 S.W.2d 805 (1945); Sansom v. Mercer, 68 Tex. 488, 5 S.W. 62 (1887) City of Brownwood v. Brown Telegraph & Telephone Co., 152 S.W. 709 (Tex.Civ.App.—Austin 1913), aff’d, 106 Tex. 114, 157 S.W. 1163; Anderson v. Crow, 260 S.W.2d 227 (Tex.Civ.App. —Austin 1953, mand. overr.); Donna Independent School Dist. v. First State Bank of Donna, 227 S.W. 974 (Tex.Civ.App.—San Antonio 1921, no writ); 37 Tex.Jur.2d, Mandamus §§ 18-22.

In the case at bar, the order, insofar as it directed the issuance of a writ of mandamus, cannot stand because plaintiffs’ petition, the only basis for the issuance of the writ, was not sworn to or verified. Shirley & Holland v. Connor, 98 Tex. 63, 80 S.W. 984 (1904); Cantrell v. Carlson, 313 S.W.2d 624 (Tex.Civ.App.—Dallas 1958, no writ); Antoine v. Andrews, 150 S.W.2d 293 (Tex.Civ.App.—Galveston 1941, no writ); West v. Luttrell, 35 S.W.2d 744 (Tex.Civ.App.—Austin 1931, writ dism’d). The only cases where the rule which requires verification of the petition has been relaxed are cases where there was a full evidentiary hearing. That is not the ease here. No factual basis is shown to support the order providing for the issuance of a writ of mandamus. The facts alleged in plaintiffs’ unsworn and unverified petition may not be considered as evidence. The factual statements contained in the affidavits that are attached to plaintiffs’ petition do not constitute proof of any fact and do not form any basis for the issuance of the writ. The affidavits were never offered into evidence at the hearing.

Tex. Election Code Ann. § 2.02(c) gives the Board of Trustees of a school district the exclusive authority to establish election precincts and designate the polling places for elections held by the school district. The defendant Board of Trustees in this case exercised that authority by promulgating the February 8, 1977 Election Order, whereby, as authorized by Tex. Election Code Ann. § 2.02(h), two election precincts were established and a polling place in each precinct was designated. The order of the trial court not only ordered the designation of an additional polling place, but further specified its exact location. Clearly, the establishment of voting precincts and the geographical designation of the polling place in each precinct lies within the sole discretion of the Board of Trustees. The designation by the trial court of the “L. C. Smith Elementary School” as an additional polling place was not authorized by law. A Court may order a Board of Trustees to establish additional voting precincts and to designate a polling place therein but the geographical limits of the precinct and the pinpoint location of the voting place therein is left to the discretion of the Board, not to that of the court. It is only where there has been a refusal to exercise discretion or a clear abuse thereof can a court review the actions of the officer or board, and even in that case, a court cannot substitute its discretion for that of the officer or board, as the case may be.

The ordering of the additional polling place constituted a violation of Tex. Election Code Ann. § 2.02(h), in that the order provided for the designation of two polling places in one voting precinct, while the statute permits the designation of only one such polling place. The trial court has ordered the Board of Trustees to do an act that is prohibited by a statute. This should not be done. A public official or a board cannot be compelled by mandamus to do anything which he (it) has no authority to do, or which violates a statute. Moore v. McCallum, 116 Tex. 142, 287 S.W. 493 (1926); Corsicana Cotton Mills v. Sheppard, 123 Tex. 352, 71 S.W.2d 247 (1934, opinion adopted).

The trial court’s order that a writ of mandamus issue constituted an unwarranted judicial interference in an election after the election process had begun and before it had been completed. Under the circumstances existing, the district court was without authority to direct the issuance of a writ of mandamus that would compel the Board of Trustees to establish a polling place at the “L. C. Smith Elementary School”. The order which directed the issuance of a writ of mandamus must be set aside. Defendants’ second point is sustained.

The judgment of the trial court is REVERSED; the temporary injunction is DISSOLVED; and the order providing for the issuance of a writ of mandamus is VACATED AND SET ASIDE.

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


source: Caselaw Access Project

author: CIRE, Justice.

license: Public Domain

text:
    NEI CORPORATION, Texas, et al., Appellants, v. GLENN McMILLAN DEVELOPING CO. et al., Appellees.
    No. 1573.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 6, 1977.

      Henry J. Novak, Jr., Lykos, Bergner & Oberwetter, Houston, John J. Pichinson, Henry E. Bower, Corpus Christi, Russell Morton Brown, Alexandria, Va. (on appeal only), for appellants.
    William Key Wilde, Charles G. King, J. Woodfin Jones, Bracewell & Patterson, Houston, for appellees.
   CIRE, Justice.

This appeal is from a judgment for plaintiff on its suit for damages for breach of contract.

On March 30, 1973 a contract for the sale of land was entered into between appellee Glenn McMillan Developing Co. (McMillan) as vendor and appellant NEI Corp., Texas (NEI, Texas) as purchaser. Performance of the contract was guaranteed for McMillan by its parent company, appellee Westches-ter Corp. and performance for NEI, Texas was guaranteed by its parent company, appellant NEI Corp., a Delaware corporation. The subject of the sale was the remaining undeveloped portion of a large tract of land in northwest Harris County, known as the Northampton Subdivision, development of which had been begun by McMillan. This was valuable residential property, in a wooded area on rolling land, through the center of which Willow Creek meandered across the subdivision from west to east. The contract called for McMillan to end its development of the subdivision and transfer all of its title and interest in the subdivision, including the land and development offices, to NEI, Texas.

The total amount of land included in the contract was not an issue in the case. It was admitted in NEI, Texas’s second amended sworn answer that the contract was for the sale of approximately 946 acres of land, to be conveyed in phases, as called for in the opening clause of the contract:

Seller agrees to sell and convey to Purchaser in phases, and Purchaser agrees to purchase and accept conveyance in phases, of the Subject Property as herein defined under the terms and conditions as herein set forth as follows

The sale of Phase I was completed and is not involved in this suit. . Phase II covered an area north of Willow Creek and had been platted for development. Phase III was an area of indeterminate size, lying within “base tracts,” and consisted of a flood plain along Willow Creek. This phase was left without an exact acreage, because the extent of the flood plain had not been determined at the time of signing the contract. Because the flood plain would be unsuitable for homesites, it was contemplated that the land in this area would be sold at $1,500.00 per acre, a price much lower than the cost of the land in the other phases. The land in Phase III was to be developed for recreational uses, including a golf course. The contract described this area:

The property which is the subject matter of PHASE III of this Contract is the land lying along the North and South banks of Willow Creek within the base tracts as defined in Exhibit “A” which is (1) not included within the perimeter boundaries of any subdivision approved for recording in Harris County, Texas; and (2) lies below the contour established or approved by the Harris County Flood Control District as evidencing the high water level within the base tracts.

Finally, Phase IV and subsequent phases were to be carved out of new sections of Northampton Subdivision to be platted by McMillan out of the base tracts. The contract also provided for unrestricted reserves to be set aside within the base tracts. These were shown on a large map of Northampton Subdivision attached to the contract as Exhibit B. The reserves would be available for apartments, townhouses, or commercial or business purposes, and would be included only at NEI, Texas’s option. The map outlined the location of the base tracts as well as the reserves, which were wholly within the base tracts.

The base tracts were described in Exhibit A, attached to the contract and made a part thereof, as:

Base Tract No. 1 — That portion of the John Brock Survey, Abstract 122, lying North of NORTHAMPTON SECTION THREE as reflected in Volume 169, Page 112 of the Map Records of Harris County, Texas, and NORTHAMPTON SECTION FIVE as reflected in Volume 188, Page 29 of the Map Records of Harris County, Texas; and lying East and North of that certain 120 acre tract out of the Westerly portion of the John Brock Survey conveyed to W. A. Kirkland, et al, by Deed recorded in Volume 5865, Page 131 of the Deed Records of Harris County, Texas.
Base Tract No. 2 — 19.7077 acres of land in the Levi Gosling Survey, Abstract 280, Harris County, Texas, and being more particularly described by metes and bounds as Tract No. 2 in that certain Deed dated October 14,1964, from Lonnie D. Harrison, Trustee, to W. Harold Sellers, Trustee, recorded in Volume 5865, Page 109 of the Deed Records of Harris County, Texas, LESS AND EXCEPT:
a. A portion of the dedicated right of way for Dovershire Road as shown on the plat of NORTHAMPTON SECTION FOUR recorded in Volume 171, Page 75; and,
b. A portion of a 7 acre tract conveyed to Norchester Municipal Utility District off the South end of Base Tract 2.
******
Base Tract No. 3 — 13.6527 acre tract of land out of the Levi Gosling Survey, Abstract 280, Harris County, Texas, and being more particularly described by metes and bounds as Tract 3 in that certain Deed dated October 14,1964, from Lonnie D. Harrison, Trustee, to W. Harold Sellers, Trustee, recorded in Volume 5865, Page 109 of the Deed Records of Harris County, Texas, LESS AND EXCEPT:
a. A portion of the dedicated right of way for Dovershire Road as shown on the plat of NORTHAMPTON SECTION FOUR recorded in Volume 171, Page 75; and,
b. A portion of a 7 acre tract conveyed to Norchester Municipal Utility District off the South end of Base Tract 3.

This litigation centers around the flood plain which determined the extent of Phase III. It is undisputed that, at the time the contract was entered into, the parties believed the flood level would be established at an elevation of 118 feet. At that elevation the flood plain would contain some 182 acres. In September 1973, the Commissioners Court of Harris County established flood control regulations which set the flood plain elevation in the area at approximately 129 feet. This area encompassed over 400 acres of land, including much or all of the land to be included in Phase II.

NEI, Texas was unwilling to buy such a large tract of land which could not be used for residential homesites. The parties entered into negotiations in which NEI, Texas sought to redefine the area of Phase III and to abrogate its obligation to purchase Phase II. The parties agreed to alter Phase III to 297 acres. McMillan had a warranty deed for that acreage prepared and NEI, Texas delivered its earnest money in the amount of $127,304.49 to a title company for closing. However, they could not agree on the acreage to be included in Phase II. McMillan then sued NEI, Texas and NEI Corp. to recover damages in the amount of $898,-660.00 for breach of contract.

NEI, Texas counterclaimed against McMillan and joined Westchester Corp. as a third-party defendant, claiming McMillan’s tender of more acreage in Phase III than originally contemplated constituted an abandonment of the contract, and prayed for liquidated damages of $898,660.00.

Trial was to a jury, at which testimony was given in support of the facts set out above. Also introduced into evidence were McMillan’s warranty deed for 297.9394 acres of land, purported to be the entire area of Phase III, and NEI, Texas’s corporate resolution authorizing the execution of a note for $446,909.10 for the purchase of Phase III. The only disputed question was the amount of land which the parties contracted to include in Phase III.

Two special issues were submitted, in answer to which the jury found that NEI, Texas agreed to buy 297 acres in Phase III under the contract, and that McMillan stood ready, willing, and able to perform its obligations under the contract, including the transfer of the land in Phase III to NEI. The failure of NEI, Texas to consummate the transaction was therefore a breach of contract. The court entered judgment on July 26, 1976 for McMillan in the amount of $898,660.00.

Appellants filed the transcript of the case with this court on November 12, 1976. Thereafter, on December 20, 1976, a judgment nunc pro tunc was entered on motion by McMillan to correct a misrecital of appellant NEI Corp.’s name. Tex.R. Civ.P. 317. Appellees have moved to dismiss the appeal because the prior judgment has been vacated and no appeal has been taken from the judgment nunc pro tunc. Appellees correctly state the rule that the right to appeal dates from the rendition of the judgment nunc pro tunc. Tex.R.Civ.P. 306b. However, we consider appellants’ motion for new trial and appeal bond as prematurely filed. Under rule 306e they are not ineffective. These instruments are deemed to have been filed on the date of, but subsequent to, the entering of the judgment nunc pro tunc. See Capitol Life Ins. Co. v. Rutherford, 468 S.W.2d 535, 536 (Tex. Civ.App., Houston [1st Dist.] 1971, no writ). The case is properly before us and appel-lees’ motion to dismiss is overruled.

Appellants present two points of error. The first point assigns error in the court’s judgment enforcing the contract, because the contract is unenforceable under the Statute of Frauds, Tex.Bus. & Comm.Code Ann. § 26.01 (1968). Under this point, they contend the land description in the contract for sale was insufficient to identify the land to be conveyed. Except for a general allegation of the Statute of Frauds defense, no objection was raised in the trial court concerning the sufficiency of the description.

In its first amended answer, NEI, Texas pleaded the Statute of Frauds as a defense against the oral agreement as to the size of Phase III:

In answer to the allegations of McMillan in its original petition, NEI pleads the affirmative defenses of (1) abandonment and alteration of the express terms of the written contract by a subsequent oral proposal by McMillan, not reduced to writing, wholly defeating the terms of the written contract; (2) to the extent that NEI may have acquiesed [sic] in or assented to the aforesaid oral proposal by McMillan, which acquiesence [sic] or assent is not admitted but expressly denied, such oral agreement is within the statute of frauds and is unenforceable against NEI ....

Its second amended answer read:

NEI pleads the affirmative defenses of abandonment and alteration of the express terms of the written contract by a subsequent oral proposal, not reduced to writing,- wholly defeating the terms of the written contract; the statute of frauds .

NEI Corp. filed only a general denial.

Thus, appellants went to trial without any suggestion that the contract violated the Statute of Frauds because of insufficient description of the land to be conveyed. During the course of trial, counsel for appellants characterized their reliance on the Statute of Frauds thus:

Therein arises our statute of frauds defense, that the 297 acres was an entirely independent oral agreement between the parties and is unenforceable. The only way NEI could have performed was to have failed to accept 182.5 acres.

Appellants raised no objection to the contract when it was offered in evidence. Ap-pellees argue that the appellants have waived any defense based on the inadequacy of the land description because there was no fair notice of that defense in the pleadings and no objection was made to the introduction of the contract in evidence. However, it is not necessary for us to consider this argument. We overrule appellants’ first point of error for another reason.

In their amended motion for new trial, appellants’ first ground said: “The Court erred in entering judgment for Plaintiff for the reason that Plaintiff’s cause of action is barred by the Statute of Frauds, Article 3995, Tex.Rev.Civ.Stat.” This ground for new trial was too general to preserve the error of which appellants now complain. Rule 321, Texas Rules of Civil Procedure, requires each ground of a motion for new trial to refer to the error complained of “in such way as that the point of objection can be clearly identified and understood by the court.” This ground gave no indication that appellants were complaining of any insufficiency in the contract’s land descriptions. The point not only could not have been identified and understood, it was actually calculated to mislead the trial court. Rule 322 directs that “[gjrounds of objections couched in general terms . . . shall not be considered by the court.” Wagner v. Foster, 161 Tex. 333, 337, 341 S.W.2d 887, 890 (1960). This ground for new trial did not preserve the alleged error for appeal.

Appellants’ second point asserts the court erred in awarding liquidated damages on eonclusory evidence. The evidence offered in support of McMillan’s claimed damages was the contract and the testimony of Glenn McMillan, chairman of the boards of both Glenn McMillan Developing Co. and Westchester Corp. He testified that the liquidated damages as calculated under the contract were $898,660.00. Appellants contend this testimony by McMillan was only a conclusion and was not probative evidence upon which the court could have based its judgment. We overrule this point. Appellants do not complain of the amount of the damages, but only of the evidence needed to justify the amount requested. No testimony was necessary to support an award of damages. The damages were calculated under the liquidated damages clause of the contract. The clause was unambiguous and, under the rule that construction of contract provisions is a question of law, the determination of liquidated damages was a matter for the court. Tower Contracting Co. v. Flores, 157 Tex. 297, 302, 302 S.W.2d 396, 399 (1957).

The liquidated damages clause read:
10. Defaults of Purchaser: If at the time of closing of any phase of this Contract, Seller has performed or tendered full performance of all of Seller’s covenants and agreements herein set forth which are then performable, and Purchaser then fails or refuses to consummate this agreement for any reason, then Seller shall have the option:
a. to cancel and terminate this Contract thereby cutting off any and all future, contingent or equitable rights of Purchaser in any land not previously deeded to Purchaser; and thereupon Purchaser shall be obligated to pay to Seller liquidated damages for such breach in an amount determined by the following formula: 10% X 2.50 X acreage remaining in base tracts not previously deeded to Purchaser times current lot price as defined herein ($6,500.00 as to PHASE I, II, and IV); or
b. Seller may sue for specific performance of this Contract.

Under this point, appellants allege that the liquidated damages provision did not apply to a breach of the contract as to Phase III. We do not agree. The liquidated damages provision applied to all phases, but the acreage included in Phase III was not to be used in the formula for figuring liquidated damages. This was because the price per acre of Phase III land was only $1,500.00.

The contract was for the sale of 946 acres. Phase I, which had already been closed and was not a part of this litigation, consisted of 96 acres. This left 850 acres remaining at the time of trial. The jury found that Phase III consisted of 297 acres. Subtracting the 297 acres left 553 acres as the amount of land to be used in the liquidated damage formula. Ten percent X 2.50 X 553 acres X $6,500.00 equals $898,-625.00. From this amount must be subtracted the $127,304.49 which had been deposited in the registry of the court to be paid to appellees, leaving a net amount of $771,320.51. This figure is $35.00 less than the amount awarded by the trial court, and the trial court’s judgment should be reformed to correct that error.

That portion of the judgment awarding Glenn McMillan Developing Co. the sum of $771,355.51 is reformed to award the sum of $771,320.51. The judgment of the trial court as reformed is in all other things affirmed.


author: WALTER, Justice.

text:
    The ST. PAUL INSURANCE COMPANY, Appellant, v. Mary Elizabeth CASTILLO, Appellee.
    No. 5012.
    Court of Civil Appeals of Texas, Eastland.
    April 7, 1977.
    Rehearing Denied May 12, 1977.

      Thomas P. Sartwelle and John P. Venzke, Fulbright & Jaworski, Houston, for appellant.
    William W. McNeal, McNeal, Thrash, Williams & Dozier, Luling, for appellee.
   WALTER, Justice.

This is a workmen’s compensation heart attack case. Mary Elizabeth Castillo, surviving widow of Louis Castillo, recovered a judgment for death benefits against The St. Paul Insurance Company and St. Paul has appealed.

The jury found that Louis Castillo had a heart attack on or about October 31, 1973 in the course of his employment by Texas Inbred Mice Company which was a producing cause of his death.

The testimony of Ronnie King constitutes some evidence of probative value on the issues of strain or overexertion which occurred in the course and scope of Castillo’s employment. King’s testimony established strain or overexertion in carrying the trash cans.

He was asked the following questions and he gave the following answers:

“Q As I understand it, the back trash cans, I assume, were for trash from inside to outside where they would be picked up?
A That and wet bedding.
Q Could you describe or explain what wet bedding was?
A Wet bedding is sawdust that they use for the mice bedding so when they change about every day or two it gets wet because the mice urinate, on it and they throw it out because they can’t re-use it or anything and so when we put it in trash cans it gets real full and heavy and it takes two men to carry it anyway.
Q But as I understand, and what I am getting at here, you mentioned that he went around to the back trash cans and those were full and he had to carry these trash bags or cans to the front trash cans?
A Yes, sir.
Q Was that the usual thing or unusual? A Very unusual.
Q In what way was it very unusual? A Because the trash people didn’t come to pick up the back trash cans that day. Q All right. Had you observed, prior to this date, Mr. Castillo taking out trash as part of his normal duties?
A Yes, sir.
Q And as I understand your testimony it was unusual for him to have to go this 200 yards distance to the front trash cans?
A Right.”

This unusual task of hauling the trash cans 200 yards requiring strenuous exertion and strain was observed by King about 7:35 in the morning. At about 8:30 that morning, King talked to Castillo near the front trash can. King again observed Castillo in the boiler room with Mr. Cagnola and Mr. Breeding about 9:30. Castillo left the plaint soon thereafter but died of myocardial infarction about 10:15 a. m.

King was asked to relate what Castillo told him about his physical condition when he saw him in the front shop by the trash can. St. Paul made this objection:

“MR. SARTWELL: Excuse me, Mr. King. Your Honor, we again object to any testimony with respect to what Mr. Castillo might have said because it’s obviously being offered as a res gestae statement which is admissible as part of the res gestae only if it’s made in connection with an act that is already proven. That is in this case an injury occurring at a certain time and place as a result of a certain cause and there is no independent proof of any injury in this particular case and therefore it would not be admissible at this time.”
The objection was overruled and King answered:
“A Just told me that he had passed out by the trash can. That he had carried out a heavy load and nobody had found him there. He thought he laid there about 10 or 15 minutes but nobody had found him or woke him up or even went by so he had to come in and sit down for awhile because he was till pale and sweating.
Q All right. Did he say which trash can or did he have to explain it to you?
A He was dumping it into the big trash can but he was carrying one of these big garbage cans and he said it was heavy.
Q What I am getting at, the trash can he was dumping it into, did you already know which trash can that was?
A Yes, sir, the front one.
Q And at that time was the one that was 200 yards away?
A Yes, sir.
Q Now, did he tell you anything else about his condition in regard to how he felt or anything like that?
A Just that he wasn’t feeling too good. He had pains in his chest and his arms were sore and—
Q All right. Let me slow you up a little bit now. He wasn’t feeling too good and he said he had pains in his chest?
A Yes, sir.
Q Was he any more specific than that?
A His back was hurting.
Q Let me ask you first about the pains in his chest, and I’m not trying to be too obscure or tricky with you but do you recall exactly what he said or the substance of it?
A All I remember is he said his chest was hurting.
Q All right. Then he said something about his back?
A Yes, sir.
Q Do you recall the substance of what he said about his back?
A Just that the trash can he lifted up in the trash can was heavy."

In Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (Tex.1963), the court said:

“For declarations to be admissible in evidence as part of the res gestae they must be made in connection with an act proven. In other words there must be evidence of an act itself admissible in the case independently of the declaration that accompanies it. Kalschinski v. Illinois Bankers Life Assur. Co., 311 Ill.App. 181, 35 N.E.2d 705; Staley v. Royal Pines Park, 202 N.C. 155, 162 S.E. 202.”

These res gestae statements made by Castillo were made in connection with an act proven, i.e., hauling the trash cans 200 yards. Another reason this testimony is admissible is because they are declarations as to bodily condition. 1 McCormick & Ray, Texas Evidence § 831 (2d ed. 1956).

In Republic Underwriters v. Howard, 69 S.W.2d 584 (Tex.Civ.App.—Eastland 1934, writ dism’d), the court said:

“The spontaneous representations and complaints of a sick person of the nature, symptoms, and effect of a malady or injury under which he is suffering at the time are competent testimony. Texas & P. Ry. Co. v. Barron, 78 Tex. 421, 14 S.W. 698; Roth v. Travelers' Protective Ass’n of America, [102 Tex. 241, 115 S.W. 31,] supra . .

Appellee’s hypothetical question to Dr. Nevin required the doctor to assume as true that on the morning of October 31, 1973 while at work, Castillo (1) carried two trash cans at separate times an estimated distance of 200 yards; (2) strained himself working with a wrench in the hot boiler room; and (3) overexerted himself carrying and loading 50 pound sacks of feed into a vehicle. Based on the assumption of the truth of these three activities, the doctor’s opinion was that this physical exertion could have a causal relationship upon Castillo’s having a myocardial infarction.

Outside the declarations of the deceased to King and Benson, there is no independent proof that Castillo was working with a wrench in the hot boiler room or that he was loading 50 pound sacks of feed. Therefore, there is no admissible evidence that Castillo performed these two physical activities.

In O’Dell v. Home Indemnity Company, 449 S.W.2d 485 (Tex.Civ.App.—Amarillo 1969, writ ref. n.r.e.), the court said:

“The burden of proving strain or overexertion is not a difficult one. Evidence of some type of strain or overexertion which occurred in the course and scope of employment and testimony by a doctor that the heart attack was probably the result of the strain or overexertion are usually sufficient . . .”

We hold the evidence of strain or overexertion in carrying the trash cans in the course and scope of Castillo’s employment constitutes evidence of probative value on these issues. However, the hypothetical question propounded to the Doctor was improper in that it assumed the truth of two physical activities that were not supported by evidence. St. Paul timely objected and we are compelled to hold Dr. Nevin’s opinion testimony was based on facts not properly introduced into evidence.

The judgment is reversed and the cause is remanded.

McCLOUD, C. J., not participating.


author: O’QUINN, Justice.

text:
    Ramiro R. RAMIREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 12481.
    Court of Civil Appeals of Texas, Austin.
    April 13, 1977.

      Jane C. Clarke, James D. Krause, Bexar County Legal Aid Association, San Antonio, for appellant.
    John L. Hill, Atty. Gen., William J. Craig, Asst. Atty. Gen., Austin, for appellee.
   O’QUINN, Justice.

Ramiro R. Ramirez, defendant below, appeals from order of a Travis County trial court overruling his plea of privilege to be sued in Bexar County.

The Attorney General brought suit in Travis County to collect money due on certain promissory notes executed by Ramirez when he obtained loans to finance his college education under the Student Loan Program provided under Chapter 52, Title 3, Higher Education, of the Texas Education Code.

Ramirez executed the notes in Bexar County, where he was a resident at that time and where he resided when suit was filed. The Attorney General filed suit in Travis County, on behalf of the Coordinating Board of the Texas College and University System, pursuant to Section 52.39 prescribing venue for such suits.

In filing his plea of privilege to be sued in Bexar County, Ramirez contended and contends on appeal that venue is determined by Article 1995, Section 5(b), V.A.C.S., as made effective August 27, 1973 (Acts 1973, 63rd Leg., p. 489, ch. 213, sec. 1), under the claim that student loans, secured from the State by promissory notes, are “consumer transactions.” By the amendment of 1973, Section 5(b), as relied on by appellant, was made to read:

“In an action founded upon a contractual obligation of the defendant to pay money arising out of or based upon a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household or agricultural use, suit by a creditor upon or by reason of such obligation may be brought against the defendant either in the county in which the defendant in fact signed the contract, or in the county in which the defendant resides at the time of the commencement of the action. No term or statement contained in an obligation described in this subsection shall constitute a waiver of this provision.”

In response to appellant’s plea of privilege, the Attorney General filed a controverting plea asserting that venue exists in Travis County under special venue provisions of Section 52.39 of the Education Code and Article 1995, Section 30 (1964).

Section 52.39 of the Education Code provides:

“When any person who has received a loan authorized by this chapter has failed or refused to make as many as six monthly payments due in accordance with an executed note, then the full amount of the remaining principal and interest becomes due and payable immediately, and the amount due, the person’s name and his last known address, and other necessary information shall be reported by the board to the attorney general. Suit for the remaining sum shall be instituted by the attorney general, or any county or district attorney acting for him, in the county of the person's residence, the county in which is located the institution at which the person was last enrolled, or in Travis County, unless the attorney general finds reasonable justification for delaying suit and so advises the board in writing.” (Emphasis added)

Section 30 of Article 1995 is the special venue provision of the general venue statute. It states:

“Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

After overruling appellant’s plea of privilege, the trial court filed findings of fact and conclusions of law.

We will affirm order of the county court at law overruling the plea of privilege.

Appellant brings three points of error. Under the first, appellant contends that the student loan, made pursuant to Chapter 52 of the Education Code, is by statutory definition within the meaning of a “consumer transaction” as used in Article 1995, Section 5(b).

The trial court concluded that the student loan did not constitute a consumer transaction for goods, services, loans or extension of credits intended primarily for personal, family, household or agriculture use. We find it unnecessary to determine whether a student loan financed by the State may be construed to be a “consumer transaction.”

Appellant’s second point of error is that venue is controlled by Article 1995, Section 5(b), and not by Section 30 of Article 1995 and Section 52.39 of the Education Code.

Section 52.39 was passed by the Legislature in 1965, and subsequently was reenacted as part of the Education Code in 1969. Article 1995, Section 5(b), was passed by the Legislature in 1973 as amendment of the general venue provisions of Article 1995.

Appellant contends that by the enactment in 1973 of the amendment to Section 5(b) there was an implied repeal of the specific venue provisions of Section 52.39 of the Education Code.

Repeal of a statute by implication is not favored in the law. Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167 (1937); Townsend v. Terrell, 118 Tex. 463, 16 S.W.2d 1063 (1929); Fortinberry v. State, 283 S.W. 146 (Tex.Com.App.1926, opinion adopted); American Canal Co. of Texas v. Dow Chemical Co., 380 S.W.2d 662 (Tex.Civ.App., Houston 1964, writ dism’d); Miller v. Calvert, 418 S.W.2d 869 (Tex.Civ.App., Austin 1967, no writ); International Service Insurance Co. v. Jackson, 335 S.W.2d 420 (Tex.Civ.App., Austin 1960, writ ref’d n. r. e.).

Repeal by implication is indulged only if the inconsistency between the legislative acts is irreconcilable. Townsend v. Terrell, supra. For repeal by implication to occur, the implication must be “clear, necessary, irresistible, and free from reasonable doubt.” International Service Insurance Co. v. Jackson, supra, quoting 82 C.J.S. Statutes § 288, p. 486.

Even if it be assumed that a “Texas Opportunity Plan Fund” student loan could be classified as a “consumer transaction,” a question we do not decide, nevertheless the correct rule of statutory construction, where a conflict exists between a general statute, such as Article 1995, Section 5(b), and a specific statute, such as Section 52.39 of the Education Code, is that the general statute is controlled, or limited, by the specific statute. The specific statute is the clearer evidence of legislative intent. Townsend v. Terrell, supra; Trinity Universal Insurance Co. v. J. C. McLaughlin, 373 S.W.2d 66 (Tex.Civ.App., Austin 1963, no writ). See also Morrow v. State, 509 S.W.2d 726 (Tex.Civ.App., Austin 1974, no writ).

Later enactment of a general law does not ordinarily repeal by implication an earlier enacted special or particular law. Flowers v. Pecos River R. Co., 138 Tex. 18, 156 S.W.2d 260 (1941); American Canal Co. of Texas v. Dow Chemical Co., supra. Article 1995, Section 30, makes special provision for such express prescription of venue as found in Section 52.39 of the Education Code. We conclude that enactment in 1973 of Section 5(b) of Article 1995 did not repeal by implication Section 52.39 of the Education Code.

Appellant argues that even if repeal by implication has not occurred, Article 1995, Section 5(b), is the proper designation of venue because appellant contends, it is a mandatory provision, whereas Section 52.39 is, as characterized by appellant, a permissive venue provision.

Analysis of Séction 52.39 shows that the statute contains the language,-“Suit' /. shall be instituted' by the attorneyí'gérieral : . . ” and contains the provision, “. ■ . unless the attorney general finds reasonable justification for delaying suit and so advisés the board in writing.” The former language contains the word “shall.” The-latter language is a specific provision requiring written notification by the Attorney General to the Coordinating Board if the Attorney General finds reasonable justification for delay in filing suit as required in the preceding language.

Although the word “shall,” when used in a statute, may be, and frequently is, merely directory, the word is generally construed to be mandatory. Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943 (1956); DeLeon v. Periman, 530 S.W.2d 174 (Tex.Civ.App., Amarillo 1975, no writ). In determining whether a particular usage is mandatory or permissive, the entire Act should be considered, including the object and nature of the Act, and also consequences of either interpretation. Burton v. Ferrill, 531 S.W.2d 197 (Tex.Civ.App. East-land 1975, writ dism’d), quoting Chisholm v. Bewley Mills, supra; Kessler v. Texas Employers’ Insurance Association, 421 S.W.2d 133 (Tex.Civ.App., Eastland 1967, writ ref’d n. r. e.), quoting Gayle v. Alexander, 75 S.W.2d 706 (Tex.Civ.App., Waco 1934, no writ).

If the provision in question' is included by the Legislature simply to promote prompt, orderly, and proper business conduct, the word “shall” is generally construed not to be mandatory. Chisholm v. Bewley Mills, supra. If the provision is the very essence of the thing to be done, the converse rule is applicable and the word “shall” is mandatory.

The essence of Chapter 52, Title 3, of the Education Code is the funding, distribution, and repayment of student loans. Enforcement of repayment goes to a central purpose of the statute. The Legislature thus made venue in Section 52.39, mandatory by setting out those counties in which, in case of default, the Attorney General “shall” bring suit, and by requiring in the alternative written notice from the Attorney General to the Coordinating Board of the Texas College and University System, based upon reasonable justification for nonobservance of the mandatory duty to file suit in one of the appropriate counties.

Under his third and final point of error, appellant contends that the venue provision of Section 52.39 is unconstitutional because it violates the due process clause of the Fourteenth Amendment of the Constitution of the United States.

We conclude that Section 52.39 is constitutional and that appellant has not been deprived of due process. Numerous provisions throughout Texas statutes provide for special venue as in Section 52.39, and as provided by Article 1995, Section 30. Many of these provisions allow the Attorney General to file suit in Travis County on behalf of the State. See 1 McDonald, Texas Civil Practice, § 4.37 (1965); Sheppard, Texas Administrative Procedure for the Practicing Attorney, 8 Baylor L.Rev. 385 (1956).

Appellant had adequate notice, was served with process, filed his plea of privilege, and has answered with a general denial subject to the plea of privilege. Appellant has ample opportunity to be heard in Travis County under Section 52.39, without being subjected to a distant forum abuse as was contemplated by the Legislature in Article 1995, Section 5(b).

The order of the trial court overruling the plea of privilege is affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Robert G. HOLLAND et al., Appellants, v. KEM MANUFACTURING CORPORATION, Appellee.
    No. 1500.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 13, 1977.
    Gerald Weatherly, Dallas, for appellants.
    Jess Hall, Jr., Liddell, Sapp, Zivley & Brown, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from an order issuing a temporary injunction.

Kem Manufacturing Corporation (appel-lee or Kem) filed suit against two of its former salesmen Robert G. Holland and Dwight L. McMillan (appellants or Holland and McMillan) to enjoin them from engaging in the business of selling sanitary maintenance chemicals, supplies, and equipment as agents for Combined Laboratories, Inc. Kem alleged that Holland and McMillan’s sales activity was in direct breach of their former employment contract with Kem. The contract contained a covenant restricting them from engaging in the production or marketing of similar sanitary products within a specified territory for two years after termination of their employment. The trial court found that the employment contract was valid, that both defendants were in violation thereof, that Kem would suffer injury if both Holland and McMillan were not restrained, and that Kem had no adequate legal remedy. Consequently, a two-year temporary injunction was ordered effective from the dates of the defendants’ termination of employment with Kem or until a hearing on the merits, whichever was less.

Both Holland and McMillan appealed this order. Appellee has filed a motion to dismiss the appeal pursuant to Tex.R.Civ.P. 415 stating that appellant failed to file a brief within the time required under rule 414. Prior to January 1, 1976, article 4662 of our Texas statutes made the filing of briefs optional from the granting or denial of the temporary injunction. Tex.Rev.Civ. Stat.Ann. art. 4662 (1952). Effective January 1, 1976, Rule 385 Tex.R.Civ.P. was adopted by the supreme court. Rule 385(d) states:

When the appeal is from an order granting or refusing a temporary injunction, or granting or overruling a motion to dissolve such an injunction, the cause may be heard in the Court of Civil Appeals or the Supreme Court under the rules and statutes pertaining to transcripts, statements of fact, and the filing of briefs that are applicable to appeals from final judgments except as to the time for filing transcripts and statements of fact, and except that the court on motion of any party or by order of the court may advance the appeal and give it priority over other cases pending therein, and the court may by order shorten the time for filing briefs. The court may also allow such cases to be submitted without briefs. Such appeal shall not have the effect of suspending the order appealed from, unless it shall be so ordered by the court or judge entering the order.

Under this new rule the filing of briefs is no longer optional but subject to the rules applicable to final judgments. Tex.R.Civ.P. 414. The appellate court has discretionary power to allow the appeal to be submitted without briefs. In this case, however, the appellants’ attorney did not file for leave to invoke this court’s discretionary power. He has offered no excuse for his late filing under rule 414.

For these reasons, then, we sustain appel-lee’s motion to dismiss the appeal. See Rush v. Spin-In-Market, Inc., 543 S.W.2d 677 (Tex.Civ.App., Beaumont 1976, no writ).

Appeal dismissed.


author: BARROW, Chief Justice.

text:
    FOODWAY, INC., et al., Appellants, v. Mary Helen AGUIRRE, Appellee.
    No. 15779.
    Court of Civil Appeals of Texas, San Antonio.
    April 13, 1977.
    Rehearing Denied May 11, 1977.

      Thomas H. Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellants.
    David R. White, Jr., White & White, Uvalde, for appellee.
   BARROW, Chief Justice.

This is a venue action involving Subd. 9a, Art. 1995, Tex.Rev.Civ.Stat.Ann. (1964). Appellee brought this suit to recover damages for personal injuries sustained when she slipped and fell while shopping in a grocery store owned and operated by appellants in Del Rio. Appellants, Foodway, Inc. and Kimbell, Inc., are residents of Tarrant County and have perfected their appeal from an order entered after a non-jury trial overruling their pleas of privilege.

Appellee, hereinafter referred to as plaintiff, was an invitee in defendants’ store at the time of the accident. In Adam Dante Corp. v. Sharpe, 483 S.W.2d 452 (Tex.1972), the Supreme Court stated that the duty which an occupier of premises owes to an invitee is that which is summarized in Restatement (Second) of Torts § 343 (1965):

§ 343. Dangerous Conditions Known to or Discoverable by Possessor A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
The occupier is under the further duty to exercise reasonable care in inspecting the premises to discover any latent defects and to make safe any defects or to give an adequate warning. Restatement (Second) of Torts § 343, Comment b (1965).

There is no evidence that defendants created the condition which caused plaintiff’s fall or that defendants knew of the condition prior thereto. The crucial question in this case is whether there is sufficient evidence to support the trial court’s conclusion that defendants breached the duty owed to plaintiff in that bottle caps had been on the floor for such a period that they should have been discovered and removed by defendants’ employees in the exercise of ordinary care before the accident occurred.

Only two witnesses testified. Plaintiff testified that she had been shopping in the store about 20-30 minutes before her fall. After she walked by the produce department, she slipped and fell on the floor. While in a sitting position on the floor, she saw that she had slipped on a soft drink bottle cap and that there were six or seven more bottle caps on the floor near where she fell. The store manager came over and she handed him the bottle cap. She believes that he saw the other bottle caps in that he sent for a sack boy to sweep the area. The bottle caps were in the area of the soft drink machines. She did not see any bottle caps on the floor prior to her fall although she had walked down this aisle about twenty minutes prior to her fall.

The former store manager, Carlos Alme-da, was called as an adverse witness by plaintiff although he is no longer employed by defendants. He testified that the floor was swept each morning shortly after the store was opened. Thereafter the floor was cleaned whenever any employee spotted something that needed cleaning. No employee was specifically charged with this cleaning detail, but all, including himself, were charged with keeping the floor clean. The manager first learned of the accident when plaintiff called to him as he was walking down the aisle toward where she was leaning against the produce rack. She told him that she had fallen after stepping on a Coca Cola cap. His testimony was very inconclusive regarding the presence of the bottle caps. Although he had walked down this aisle about twenty minutes before the accident, he did not see any bottle caps on the floor. He testified he did not remember plaintiff giving him the bottle cap and he did not remember calling an employee to clean up the area. He did not deny that those things had occurred or that the bottle caps were on the floor.

The trial court found that there were six or seven bottle caps lying on the floor near where plaintiff fell which was about ten feet from two vending machines that dispensed beverages with bottle caps. The court also found that the store manager had walked down this aisle about twenty minutes before plaintiff fell and, although he did not see any bottle caps, the manager had testified that it was possible that they were on the floor at this time. The trial court concluded that since there were at least six or seven other bottle caps on the floor immediately after plaintiff fell, the condition existed for a long enough time for the defendants’ employees to have seen or known of the condition in the exercise of normal or ordinary care and cleaned up the area. Furthermore, the store manager had been in this area shortly before the accident occurred and should have seen the bottle caps if they were there.

These conclusions are based on the premise that the bottle caps came from the vending machines over some period of time. It cannot be seriously doubted that the bottle caps came from the vending machines; the uncertainty is over how they got to the floor and over what period of time. The appearance or condition of the bottle caps would not answer these questions. Cf. Furr’s Supermarkets, Inc. v. Arellano, 492 S.W.2d 727 (Tex.Civ.App.—El Paso 1973, writ ref’d n. r. e.). The accident occurred near the end of a summer day and it would be reasonable to presume that-many drinks would have been sold during the day. There is no evidence that the condition of the bottle cap holder was checked by defendants before or after the accident to determine if it was overflowing.

The only explanation for the caps being on the floor that is suggested by defendants is that perhaps a child removed them from the holder and scattered them on the floor. However, there is no evidence that a child was in the vicinity before the accident.

Here there is no direct evidence of how or when the bottle caps got on the floor. However, the trial court did not abuse its discretion in drawing the inference from the facts before it that the caps came singly from the vending machine as the bottles were opened. Since there were six or seven on the floor, it was reasonable to conclude that they had been on the floor for some time. The bottle caps were on the floor in a main aisle of the store at a very busy shopping period. We conclude that there is sufficient evidence to support the trial court’s conclusion that the defendants were negligent in not discovering and removing the bottle caps from the floor before plaintiff slipped on one of the caps. Thus, the trial court did not err in overruling defendants’ plea of privilege.

The judgment is affirmed.

      . The venue facts are: (1) that an act or omission of negligence occurred in Val Verde County; (2) that such act or omission was that of the defendants or their servant, agent, or representative acting within the scope of his employment; and (3) that such negligence was a proximate cause of the plaintiffs injuries. 1 McDonald, Texas Civil Practice § 4.17.2 (1965).


author: RALEIGH BROWN, Justice.

text:
    ADA OIL COMPANY, Appellant, v. DUNLOP TIRE & RUBBER CORP. et al., Appellees.
    No. 5010.
    Court of Civil Appeals of Texas, Eastland.
    April 14, 1977.
    Rehearing Denied May 5, 1977.
    Ernest C. Hurst, Caldwell & Hurst, Houston, for appellant.
    Simeon T. Lake, III, Fulbright & Jawor-ski, Jack C. Ogg, Houston, for appellees.
   RALEIGH BROWN, Justice.

This is a suit for damages. Dunlop Tire and Rubber Corporation sued Ryder Truck Lines, Inc., as carrier, and Ada Oil Company, as consignee, for the loss of a quantity of new passenger and truck tires owned by Dunlop and transported to Ada’s premises in Houston, Texas. The tires were apparently stolen from such premises.

After a nonjury trial, judgment was rendered in favor of Dunlop against Ada for the sum of $18,958.88 together with interest, attorney’s fees and costs, and decreed that Dunlop take nothing against Ryder. Ada Oil Company appeals. We reform and as reformed affirm.

Ada contends that there was no evidence of probative force to support the finding that there was a tender of delivery of the trailer containing the tires, and also the trial court erred in rendering judgment against it because as a matter of law there was no tender of delivery as required by Section 2.509, Texas Business & Commerce Code.

This section provides in part:
“(a) Where the contract requires or authorizes the Seller to ship the goods by carrier
(2) If it does require him to deliver them at a particular destination and the goods are there duly tendered while in the possession of the carrier, the risk of loss passes to the Buyer when the goods are there so duly tendered so as to enable Buyer to take delivery.”

Section 2.503 of the Code provides in part:

“(a) Tender of delivery requires that the Seller put and hold conforming goods at the Buyer’s disposition and give the Buyer any notification reasonably necessary to enable him to take delivery. The manner, time and place for tender are determined by the agreement and this chapter (2), and in particular
(1) Tender must be at a reasonable hour, and if it is of goods they must be kept available for the period reasonably necessary to enable the Buyer to take possession; . . . ”

Ada argues the facts establish that Dun-lop through Ryder failed to make a sufficient tender of delivery of the tires to Ada within the meaning and for the purposes of Section 2.503 of the Code so as to shift the risk of loss of the tires to Ada pursuant to the provisions of Section 2.509. It primarily urges the tires were not tendered at a reasonable time.

On Friday, July 13, 1973, Ryder’s city dispatcher, Wayne Martin, called the receiving department at Ada telling it that Ryder had a shipment for Ada. Martin was told to send the shipment on out and he so instructed Ryder’s driver, Richard Leija. Martin testified that on frequent occasions Ada had rejected deliveries as being untimely and for that reason, he notified Ada in advance of the delivery.

Leija testified that he arrived at the Ada warehouse with his load of tires shortly before 10:00 a.m. on the morning of Friday, July 13, 1973. Other witnesses testified that the delivery was not made until some time Friday afternoon. When Leija arrived at the warehouse, he was instructed by Waymon McCoy, Ada’s warehouse supervisor, to drive around to the Western Tire and Rubber side of the warehouse to a fenced enclosure that was kept locked and to back his trailer up to the Ada loading dock. Leija testified that McCoy- told him that he would try to get’the trailer unloaded that day, but that if he could not,- the trailer would be unloaded the following Monday and Ryder would be notified to return and pick up the trailer. McCoy testified that he instructed the driver to return the trailer to Ryder’s place of business and bring it back on Monday. Leija testified that McCoy did not object to receiving the load. He left the bill of lading with McCoy, disengaged- his tractor from the trailer and departed. McCoy closed the gates of the compound behind him.-

McCoy testified that Bob Coston, Ada’s office manager, told him to accept the load of tires. He further testified' that his crew finished unloading another- truck about noon on the Friday in question arid spent the remainder of the day preparing to unload the Ryder trailer. Because he did not want to pay overtime to unload the Ryder trailer that day, he decided to unload it another time. McCoy locked the trailer with an Ada lock and kept the key. After Leija left, McCoy chained and padlocked the gate of the Ada compound in which the Ryder trailer was parked.

Coston testified that he had informed McCoy that the Ryder trailer would be arriving and that if he could unload it, he should accept the delivery. He also testified that when he left work on the Friday afternoon in question, the Ryder trailer was locked inside the Ada compound. When he returned to work the following Monday, the lock had been cut and the trailer was gone. Coston testified that it was not unusual to tell a delivery driver to leave his trailer at Ada and return for it later after unloading had been completed. He testified that shipments had been left at Ada overnight and over weekends on the other side of the warehouse.

The trial court made the following findings of' fact and conclusions of law:

“FINDINGS OF FACT
5. That out of the 436 new pneumatic tires delivered by Dunlop to Ryder on or about July 2, 1973, in Louisville, Kentucky, 125 of the 311 small passenger vehicle tires were delivered by Ryder to Red Arrow Freight Lines in Houston, Texas, and ultimately to the House of Tires in Bryan, Texas, by way of Conroe, Texas.
6. That the remaining 311 tires, of which 125 were large truck tires and 186 were small passenger vehicle tires, were delivered by Ryder to a warehouse owned and operated by Ada in Houston, Texas, on or about July 12, 1973, and were received by Ada at that time.
7. That after the delivery of these 311 tires to Ada, on or about July 12, 1973, persons unknown to the parties in this suit broke into Ada’s premises on or about July 13, 1973, and stole all 311 of said tires.
9. That at the time of the theft of the 311 tires from Ada’s premises on or about July 13, 1973, the reasonable fair-market value in Houston, Harris County, Texas, of the 125 large truck tires was $14,-006.00.
10. That at the time of the theft of the 311 tires from Ada’s premises on or about July 13, 1973, the reasonable fair-market value in Houston, Harris County, Texas, of the 186 small passenger vehicle tires was $4,902.88.
13. That of the 311 tires stolen from Ada’s premises on or about July 13, 1973, the 125 large truck tires had been purchased from Dunlop by Ada pursuant to a previous sales agreement.
14. That the purchase price agreed upon by and between Ada and Dunlop for the 125 large truck tires was $14,006.00.
15. That the 125 large truck tires purchased by Ada from Dunlop were received by Ada on or about July 12, 1973, in Houston, Texas.
18. That of the 311 tires delivered to Ada on or about July 12, 1973, the remaining 186 small passenger vehicle tires were received by Ada from Dunlop for the purpose of storage and safekeeping pursuant to a ‘Dealer Managed Warehouse Agreement’ previously entered into by and between Dunlop and Ada.

SUPPLEMENTAL FINDINGS OF FACT

1. That Ada Oil Co. instructed Ryder Truck Lines, Inc. to deliver 311 tires to Ada Oil Co. on July 12, 1973.
2. That Ada Oil Co. on July 12, 1973, instructed the Ryder Truck Lines, Inc. employee to leave the trailer containing the 311 tires to be unloaded at a later date by Ada Oil Co.
CONCLUSIONS OF LAW
1. That on or about July 12, 1973, 311 new pneumatic tires shipped by Dunlop were delivered to and received by Ada in Houston, Harris County, Texas.
2. That of the 311 new pneumatic tires received by Ada on or about July 12, 1973, 125 were large truck tires previously purchased by Ada from Dunlop.
5. That pursuant to the terms of the ‘Dealer Managed Warehouse Agreement,’ Ada became responsible and liable for all of Dunlop’s stock warehoused by Ada, and in particular, became liable for the risk of burglary of any of said stock.
6. That at the time of the theft of the shipment of 311 new pneumatic tires on or about July 13, 1973, from Ada’s premises, Ada was a bailee for hire of the 186 small passenger vehicle tires contained in said shipment.
7. That the theft of the 311 new pneumatic tires from Ada’s premises on or about July 13, 1973, was proximately caused by the negligence of Ada.”

In General Electric Company v. Acme Fast Freight, Inc., 324 F.Supp. 1079 (D.C. Md.1971) aff’d 440 F.2d 412 (4 Cir. 1971), a case with facts very similar to those in the instant case, a consignee sued a carrier to recover the value of stereo sets stolen from a trailer parked on the consignee’s premises. The trailer arrived at the consignee’s warehouse sometime after the noon hour on Friday. The receiving clerk agreed to have the trailer backed up to a bay and the doors opened so that consignee’s employees could unload the trailer early Monday morning. On Monday, the trailer was found to have been stolen.

The court held that where a consignment of goods is delivered to a consignee who has custody and control over it, he accepts the delivery and is liability for any loss that might accrue saying:

“Here, these goods were delivered to General Electric at its warehouse in Baltimore, Maryland. They were accepted, the trailer was backed up, and, as I have repeatedly said, dominion was exercised over them, not so much for the benefit of the carrier, but for the benefit of the consignee.
Whatever rights could be assigned by virtue of the fact that plaintiff’s employee protested the acceptance, the fact remains that he did accept the goods and he had the right, of course, under the circumstances, to tell the carrier that he would not accept the goods until Monday morning and require that they be returned and, certainly, in that instance the carrier would have been liable for any loss that might have occurred.
But all of the indicia of acceptance of delivery were exercised here — backing up the trailer and fixing it in a position where the plaintiff’s employees could unload it — and arrangements were even made to call (the carrier) upon the completion of the unloading and have the tractor come and take the trailer back to the rail yard for return to Acme.”

The court in Trans-Cold Express, Inc. v. Hardin, 415 S.W.2d 431 (Tex.Civ.App—Austin 1967, no writ) said:

“. . . Tender of the cargo at its destination to the consignee, followed by actual delivery to the dock of a portion of the cargo, constituted delivery as a matter of law, and served to terminate appel-lee’s responsibilities as a carrier and reduce his liability to that of an ordinary bailee or warehouseman . . .”

See also: Chief Freight Lines Company v. Holiday Inns of America, Inc., 469 S.W.2d 413 (Tex.Civ.App.—Dallas 1971, no writ); United Firemen’s Ins. Co. v. Thompson, 259 S.W.2d 612 (Tex.Civ.App.—Galveston 1953, writ ref. n.r.e.); Finck Cigar Factory v. American Ry. Express Co., 283 S.W. 219 (Tex.Civ.App.—Galveston 1925, no writ).

We overrule Ada’s point that there was no delivery as a matter of law.

The rule we must apply in considering appellant’s no evidence challenge is stated in Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.1963):

“. . . In determining whether the trial court’s findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings and will disregard all evidence to the contrary . . . ”

To consider appellant’s factually insufficient evidence challenge, we must consider all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Applying the two rules, we overrule appellant’s no evidence and factually insufficient evidence points concerning the tender of delivery of the trailer.

Ada urges the evidence is both legally insufficient and factually insufficient to support the court’s findings as to the quantity and character of tires delivered by Ryder to Ada. The applicable rule was stated in Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938) as follows:

“. . . The courts draw a distinction between uncertainty merely as to the amount and uncertainty as to the fact of legal damages. Cases may be cited which hold that uncertainty as to the fact of legal damages is fatal to recovery, but uncertainty as to the amount will not defeat recovery. A party who breaks his contract cannot escape liability because it is impossible to state or prove a perfect measure of damages . . .”

The court in Edens-Birch Lumber Co. v. Wood, 139 S.W.2d 881 (Tex.Civ.App—Beaumont 1940, writ dism’d jdgmt.cor.) said:

“ ‘The rule forbidding the recovery of damages which are uncertain or contingent does not apply where the amount, measure or extent of loss or injury is uncertain; it only applies to such damages as are not the certain result of the breach, and not to such as are the certain result, but uncertain in amount. And, while the amount or extent of loss or damage must be shown with a reasonable degree of certainty, reasonable certainty is all that is required; the loss or damage need not be shown with mathematical exactness. The amount may be fixed by the jury in the exercise of a sound discretion under proper instructions from the court. Nor, in a case where the damages are incapable of exact ascertainment, is it necessary to place a money estimate on the amount of loss or injury; the jury are allowed to use their own judgment and discretion. Consequently, where it is shown that the defendant’s act has occasioned damage to the plaintiff, and the only uncertainty is as to the amount, there can rarely be good reason for refusing, on account of uncertainty, any recovery whatever for the breach.’ ”

In Texas Sanitation Co. v. Marek, 381 S.W.2d 710 (Tex.Civ.App.—Corpus Christi 1964, no writ), the court quoting from 17 Tex.Jur. § 14, pp. 92-95 said:

“ ‘One who is damaged must not be deprived of a remedy merely because of the difficulties lying in the way of proving his damages and the courts will not permit a guilty party to reap an advantage from his wrong by insisting on a degree of proof which, by reason of his wrongful act, is unobtainable * * *.
In cases in which damages should be awarded but there is difficulty in determining the sum that would constitute a fair and adequate compensation, determination of the amount will be left to the sound judgment and wisdom of the trier of facts.’ ”

The tires were stolen before they were inventoried, therefore, Dunlop proved its damages by a process of elimination since it was impossible to prove the extent of the damages by direct evidence.

The shipment of tires originated at Dun-lop’s warehouse in Louisville, Kentucky. It was comprised of orders for tires by Ada and Alford Gutierrez, Jr., d/b/a The House of Tires, Conroe, Texas. The portion of the shipment ordered by Ada was comprised of 125 1000 X 20 16-ply large truck type tires weighing 14,125 pounds for which Ada had agreed to pay $14,006. The tires ordered by Gutierrez were smaller passenger vehicle tires of various types. Only 311 of the tires that he ordered were shipped weighing 8,481 pounds from Dunlop’s Louisville warehouse. Truck tires such as those ordered by Ada were described as weighing anywhere from 120 pounds to 135 pounds each. Passenger vehicle tires such as those ordered by Gutierrez weighed approximately 22 pounds each.

The route taken by the Ryder trailer from the time it left the Dunlop warehouse in Louisville, Kentucky until its arrival at the Ryder terminal in Houston was traced in detail. Sometime after the shipment left Louisville, Gutierrez contacted Dunlop and canceled his order. Coston agreed to accept the shipment of vehicle tires ordered by Gutierrez as part of the inventory of Dun-lop tires normally warehoused by Ada. He testified that the load was received by Ada on the afternoon of July 13, 1973 and such load included the shipment of passenger tires originally scheduled for Gutierrez and was received pursuant to the dealer-manager warehouse agreement.

Gutierrez’ change of mind and the subsequent agreement by Ada to accept the passenger vehicle tires ordered by Gutierrez was unknown to Ryder. When the Ryder truck arrived at its Houston warehouse, 125 tires were off-loaded and placed in the Red Arrow bay for shipment to Conroe. Leija saw the passenger tires in the Red Arrow bay and he testified that when he looked in his trailer on the morning of July 13, 1973, he saw dust tracks on the floor of the trailer and could tell by the size of the tracks the tires that had been removed were passenger tires. In mid-July of 1973, Ed Webb, Dunlop’s territory manager for Southeast Texas, received a telephone call from Gutierrez advising them that a shipment of passenger tires consigned to The House of Tires in Conroe, Texas, had arrived at the Red Arrow terminal in Conroe. Webb drove to the Red Arrow terminal in Conroe, inspected the tires, and testified that the tires were all Dunlop passenger car tires, and there were no truck tires. He estimated that there were approximately 100-125 passenger tires. Webb contacted Gutierrez who agreed to accept the passenger vehicle tires and requested that they be shipped to his Bryan, Texas store. It was necessary to ship the tires by Central Freight Lines, as Red Arrow did not ship from Conroe to Bryan. Central Freight Lines’ delivery receipt reflects 125 tires weighing 3,000 pounds were shipped from Conroe to The House of Tires in Bryan, Texas, in July, 1973.

Leija, the Ryder driver, did not inventory the tires remaining in the Ryder trailer on July 13, 1973. He testified as to the probable makeup of the shipment based on his experience as a delivery driver of tires. His testimony was that the trailer was 45 feet long and after the tires which were placed in the Red Arrow bay had been unloaded, there was 15-20 feet of empty space and 25-30 feet fully loaded with tires from floor to ceiling. The tires he saw nearest the rear door of the trailer were stacked in a weave pattern and were passenger tires. Leija testified that it is normal to stack 50-60 passenger tires in a row and that a row would take 2 feet of space in the trailer. His testimony was that large truck tires were not stacked in a weave pattern, but were stacked at 22 to a row and that a row of truck tires took 3-4 feet of space in the trailer. He testified that 125 large truck tires would have filled 20-25 feet of space in the trailer and that a row of passenger tires consisting of 50-60 tires would take up to 2 feet of space.

Bob Coston, the Ada office manager, inspected the load when the Ryder trailer arrived at the Ada warehouse. He testified that he looked inside the trailer and that there were at least 2 rows of passenger tires in the rear with 5 or 6 stacks in a row, and that he observed large truck tires of the type ordered by Ada in the front portion of the trailer. In his opinion, the trailer contained the 125 large truck tires ordered by Ada.

Applying appropriate rules, we overrule Ada’s points of error challenging the legal sufficiency and factual sufficiency of the evidence to support the court’s findings as to the quantity and character of the tires delivered by Ryder to Ada.

Ada contends the judgment in favor of Dunlop is excessive by $1,020.72. We agree.

Ed Webb reviewed the Dunlop shipping order and computed the value of the least expensive 186 passenger vehicle tires shown on the shipping order. His computations were reduced to writing and were received into evidence without objection. His testimony was that such reasonable market value at the time of the theft was $3,882.59. The court erroneously found the value of such tires to be $4,902.88. The judgment should therefore be reformed to permit a recovery by Dunlop in the amount of $3,882.59 for the loss of the 186 passenger vehicle tires rather than the $4,902.88 award.

By cross-point, Dunlop urges the trial court erred in failing to award prejudgment interest at the rate of six percent per annum for the loss of the 186 passenger tires from July 12, 1973 until date of judgment. We agree.

As stated in Laredo Hides Company, Inc. v. H & H Meat Products Company, Inc., 513 S.W.2d 210 (Tex.Civ.App.—Corpus Christi 1974, writ ref. n.r.e.):

“The rule in Texas is that prejudgment interest will be allowed as damages when the principal damages are determinable and established at a definite time, either by rules of evidence or known standards of value. When such is the case, interest is recoverable from the date of the injury. Texas Power & Light Co. v. Doering Hotel Co., 147 S.W.2d 897, 906 (Tex.Civ.App. —Austin 1941), affirmed 139 Tex. 351, 162 S.W.2d 938 (1942); Reed v. Fulton, 384 S.W.2d 173, 179 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n.r.e.) Hexter v. Powell, 475 S.W.2d 857, 864 (Tex.Civ.App.—Dallas 1971, writ ref’d n.r.e.)

In Texas Warehouse Company of Dallas, Inc. v. Springs Mills, Inc., 511 S.W.2d 735 (Tex.Civ.App.—Waco 1974, writ ref. n.r.e.), it was held a shipper is entitled to recover judgment interest against a bailee for hire when the goods are lost after receipt by the bailee.

Dunlop should have been awarded prejudgment interest on the amount of $3,882.59 for the loss of the 186 passenger tires.

We have considered and overrule all points of error presented by appellant.

The judgment is reformed to provide that Dunlop Tire and Rubber Corporation should recover from Ada Oil Company the sum of $17,888.16 together with interest at the rate of 6% per annum from July 12, 1973 until date of judgment and as so reformed is affirmed.

McCLOUD, C. J., not participating.


author: McDONALD, Chief Justice.

text:
    AUSTIN BRIDGE COMPANY et al., Appellants, v. The STATE of Texas, Appellee.
    No. 5675.
    Court of Civil Appeals of Texas, Waco.
    April 14, 1977.
    Rehearing Denied May 12, 1977.
    Gaynell C. Methvin, Douglas A. Cawley, Hewett, Johnson, Swanson & Barbee, Dallas, for appellants.

      Dudley Fowler, Austin, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs Austin Bridge Company, and other bridge fabricators, from judgment decreeing no liability, in their suits against defendant State of Texas, for alleged losses suffered for being required by defendant to repaint steel bridge members.

Plaintiffs alleged they entered contracts with the State of Texas to construct steel bridges on highway construction jobs; that the paint specified in each contract was “740 paint”; that 740 paint was originated and developed by the Texas Highway Department; that the State sold the paint; that plaintiffs prepared the steel and applied the paint according to contract specifications; that the paint failed and they were required to repaint at great cost; that the State warranted the paint; and that plaintiffs should recover their damage.

Defendant State answered plaintiffs contracted to fabricate and paint bridge members with Texas Highway Department 740 paint, and agreed they would clean and paint the bridge members in accordance with the cleaning and painting specifications, and to the satisfaction of the Engineer; that each plaintiff initially failed to meet the cleaning and painting specifications, and was required to repaint the unsatisfactory portions of its paint job using 740 paint; that the repairs were successfully accomplished using the identical paint, but with better workmanship. Defendant further plead plaintiffs were bound by the provisions of the contracts providing the Engineer have sole and exclusive right to determine whether the specifications for cleaning and painting were met, and further providing the Engineer’s decision shall be final; that the Engineer after full consideration and investigation determined all fault lay in work deficiencies of plaintiffs in cleaning and painting, and not in the paint; and that plaintiffs having agreed to be bound by the decision of the Engineer are so bound.

On plaintiffs’ motion the trial court granted separate trials on the issues of liability and damages.

Trial was to a jury which found:
1. A. Defendant in specifying 740 paint agreed with plaintiffs that if the steel were cleaned and painted in compliance with defendant’s specifications, the paint would not blister or peel.
B.The steel was not cleaned and painted with 740 paint in compliance with defendant’s specifications in the contract.
2. Defendant did not breach its agreements, and plaintiffs suffered no damages in having to pay for repainting.
4. A. Defendant sold the 740 paint to plaintiffs.
B. Defendant knew the purpose for which the 740 paint sold was to be used.
C. Plaintiffs relied on defendant’s skill and judgment to select or furnish paint suitable for the purpose for which it was to be used.
D. Defendant knew plaintiffs relied on its skill and judgment to select or furnish paint suitable for that purpose.
E. The 740 paint was suitable for the purpose for which it was intended.
5. A. Defendant represented to plaintiffs the 740 paint and the procedures for its application had been carefully formulated and were reliable.
B. These representations were made for the benefit of all persons defendant knew would be relying on the formulation of the 740 paint and the procedures for its application.
C. Defendant knew plaintiffs would be relying on the formulation of the 740 paint and the procedures for its application.
D. The representations in 5A were false.
E. Plaintiffs suffered loss by their reliance on such representations.
F. Said representations were part of the sale of the 740 paint by defendant.

Defendant filed motion for judgment, and plaintiffs filed motion for an order declaring liability.

The trial court granted defendant’s motion, denied plaintiffs' motion, and rendered judgment for defendant.

Plaintiffs appeal on 3 points mainly contending:

The trial court erred in not entering a judgment of liability against defendant based on the jury’s answers to questions 4A and B, and 5A, B, C, D, and F.

Plaintiffs entered contracts with the State to fabricate and paint steel bridge members to be used on highway construction jobs. The contracts required the plaintiffs to purchase from the State 740 paint, a zinc rich paint the Texas Highway Department had formulated, to paint the steel bridge members with. The contract provided detailed specifications for the cleaning of the steel before painting, and for the application of the paint. The contract further provided in Section 5.2 “The Engineer will act as referee in all questions arising under the terms of the contract between the parties thereto, and his decision will be final and binding”.

The paint on some of the steel bridge members peeled and blistered, and plaintiffs were required to repair the faulty work, and repaint using the same paint and specifications. The seeond paint work was satisfactory. Plaintiffs were paid the contract prices for their work. Plaintiffs presented their claims to the Engineer, the designated referee under the contract, for their expenses in recleaning and repainting, contending the faulty paint work was caused by inferior paint rather than plaintiffs’ failure to follow the cleaning and painting specifications. The Engineer denied plaintiffs’ claim, and there is no assertion his decision resulted from fraud, arbitrariness or capriciousness.

Thereafter plaintiffs obtained permission and filed this suit against the State.

The jury’s answers to questions 1 and 2 found the blistering and peeling of the paint was the result of plaintiffs not cleaning the steel and applying the paint in accordance with the specifications in the contract; and in question 4E found the paint to be suitable for the purpose for which it was intended. No attack is made on these findings.

The jury in answer to question 5 found the paint was not carefully formulated and was not reliable as represented by defendant; that plaintiffs relied on such representations, and suffered loss by reliance on such representations.

Plaintiffs contend that since the State sold them the paint and the jury found that the State misrepresented its formulation and reliability to their damage, that under the Uniform Commercial Code they are entitled to a judgment of liability. This is an action under a contract, and Section 1.102(c) of the Uniform Commercial Code provides the effect of the provisions of such code may be varied by contract. The sale of the paint by the State to plaintiffs was an integral part of the written contract of the parties. The entire contract was governed by the arbitration procedure in Section 5.2 which provides the Engineer was referee in all questions arising under the contract, and the parties agreed that his decision will be ’ final and binding. The Engineer heard and investigated this dispute, and found that the paint failure was due to poor workmanship and not due to the quality of the paint. Plaintiffs do not assert fraud, partiality or capriciousness on the part of the Engineer.

When parties to a binding contract agree to submit questions which may arise thereunder to the decision of an engineer or architect, his decision is final and conclusive, unless he is guilty of fraud, misconduct, or such gross mistake as would imply bad faith or failure to exercise honest judgment. City of San Antonio v. McKenzie Constr. Co., 136 Tex. 315, 150 S.W.2d 989; State v. Martin Bros., 138 Tex. 505, 160 S.W.2d 58; Plantation Foods, Inc., v. Reagan Co., Inc., CCA (Waco) NRE, 520 S.W.2d 432.

Plaintiffs seek to avoid the effect of the arbitration provision of the contract, contending under the City of Dallas v. Shortall, 131 Tex. 368, 114 S.W.2d 536 defendant’s misrepresentation of the formulation and reliability of the 740 paint, takes the case out from under the contract and its arbitration provisions. We reject such contention. Shortall requires the representation to be a deception which in contemplation of law is fraudulent, amounts to bad faith, and knowingly or recklessly made. And Powell v. State, CCA (Austin) Er.Ref., 118 S.W.2d 960, citing Shortall, holds the representations must be made with bad faith in order to entitle plaintiffs to recover damages for extra expenses, and in the absence of a showing the representations were made with bad faith, plaintiffs cannot as a matter of law show themselves entitled to any compensation other than as provided by the contract, which plaintiffs here have received.

All plaintiffs’ points and contentions are overruled.

AFFIRMED.