author: BREWSTER, Justice.

text:
    CHAMPLIN PETROLEUM COMPANY et al., Appellants, v. Travis W. PRUITT, Appellee.
    No. 17746.
    Court of Civil Appeals of Texas, Fort Worth.
    July 1, 1976.
    Rehearing Denied Aug. 6, 1976.

      Cantey, Hanger, Gooch, Cravens & Munn, and Richard L. Griffith, Port Worth, for appellants.
    King & Massey, Inc., and Marion L. Massey, Fort Worth, for appellee.
   OPINION

BREWSTER, Justice.

This is an appeal by defendants, Champ-lin Petroleum Company, Robert L. Buttrill, and Employers Casualty Company from a declaratory judgment declaring an instrument dated December 28, 1970, signed by Travis W. Pruitt and Johnson Linen Service and styled “Release in Full of All Claims” to be inoperative and of no force and effect as to the rights of the plaintiff, Travis W. Pruitt, and that it would in no way prevent a recovery by plaintiff from the defendants, Employers Casualty Company, Champlin Petroleum Company and Robert Buttrill.

The plaintiff, Pruitt, had started the action by suing the above named defendants and also Natatorium Laundry d/b/a Johnson Linen Service, and Liberty Mutual Insurance Company. Pruitt alleged in part the following: “On or about November 19, 1970, Travis Pruitt, Plaintiff, was driving a delivery truck for his employer, Johnson Linen Service (a dba of Natatorium Laundry Company). Mr. Pruitt was involved in a collision with an automobile owned by Champlin Petroleum Company and driven by R. L. Buttrill who was then in the course and scope of his employment with Champlin Petroleum Company. Employers’ Casualty Company carries the automobile liability policy on the automobile owned by Champ-lin Petroleum Company and operated by R. L. Buttrill. Liberty Mutual Insurance Company is the workmen’s compensation insurance carrier for Johnson Linen Service.”

Pruitt alleged that he sustained serious bodily injury in the wreck and further alleged that “His rights to recover workmen’s compensation benefits and/or his rights to recover against R. L. Buttrill and/or Champlin Petroleum Company hinge on the validity of invalidity of the purported release dated December 28, 1970 . The liability of Champlin Petroleum Company and/or its employee, R. L. Buttrill, and/or Employers’ Casualty Company, the automobile liability insurance carrier for Champlin Petroleum Company, hinge upon the validity or invalidity of said release. The liability of the workmen’s compensation insurance carrier, Liberty Mutual Insurance Company’s right to recover under its right of subrogation against Employers’ Casualty Company, depends upon the validity or invalidity of said release.”

In the action plaintiff first sought judgment setting the release aside and decreeing that it was invalid and ineffective to bar him from suing the other defendants named therein. If he was successful he then sought in that case a recovery of damages in tort against Champlin Petroleum Company and Buttrill arising from injuries he received in the wreck and/or workmen’s compensation benefits from defendant, Liberty Mutual Insurance Company. Plaintiff further alleged that if the release was valid he had a fraud action for damages against his former employer, the defendant Johnson Linen Service.

In view of the fact that the rights of the parties hinged on the outcome of the declaratory judgment action relating to the validity of the release the trial court ordered a separate trial of plaintiff’s case seeking to rescind the release that he had executed in favor of Buttrill, Champlin Petroleum Company and Employers Casualty Company. Pursuant to that order that part of the case went to trial before a jury and the trial resulted in a hung jury. When the hung jury occurred both plaintiff and defendants moved for judgment. The motion for judgment filed by Pruitt was granted, and the motion for judgment filed by appellants was overruled. This resulted in the court rendering the judgment declaring the release to be inoperative and to have no force and effect on the rights of the plaintiff, Pruitt. The three appellants have appealed from that decree. This part of the action was severed from the rest of the case.

The appellants in their brief make the following statement: “The length . of appellants’ brief belies the basic simplicity of the primary issue before the Court, to wit: the existence of an adequate consideration to support the release . . . .”

The appellee states the question involved on this appeal this way in his brief: “. both parties seem to be in agreement that the only issue to be resolved is a question of law, to-wit: Is the contract (release) supported by valid consideration and therefore binding upon Travis W. Pruitt, Appellee?”

The trial court had it analyzed the same way because the only two issues he submitted to the jury purported to inquire as to whether there was a consideration for Pruitt executing the release.

The judgment appealed from does not state the ground of Pruitt’s motion for judgment on which his motion for judgment was granted and upon which the judgment being appealed from was based.

In appellee’s petition he had alleged that the release was invalid on the following grounds: (1) Pruitt had signed the release and draft through a mistake; (2) he had received no consideration for signing the release and/or draft; (3) there was a failure of consideration for his signing the release and/or draft; and (4) there was no delivery of the release to Employers Casualty Company with the intention that it become an operative contract against Pruitt.

The appellants’ second point of error is that the trial court erred in rendering judgment for Pruitt because the release executed by him on December 28, 1970, in favor of defendants was, as a matter of law, supported by a valid consideration and is a bar to the cause of action asserted against the defendants by Pruitt.

We sustain this point of error and reverse and render the judgment.

The following facts were undisputed: Travis Pruitt was an employee of Natatori-um Laundry, d/b/a Johnson Linen Service; he was a route man, driving one of his employer’s trucks to cover his route; while engaged in his employer’s business his employer’s truck that he was driving was in collision with an automobile belonging to Champlin Petroleum Company that was being driven by R. L. Buttrill, an employee of Champlin’s; the wreck occurred on November 19, 1970, in Fort Worth; Employers Casualty Company carried the liability insurance on the automobile belonging to Champlin Petroleum Company; the truck was damaged in the wreck and Travis Pruitt’s left leg was injured; Pruitt’s leg hurt after the wreck and at his boss’ insistence he went, after the wreck, to the Coffey Clinic where his leg was x-rayed; the nurse at the Clinic told him to return the next day, but he did not return then because his boss indicated that they could not spare him; at first he thought that his injuries were minor and Pruitt testified that it was not until three or four weeks after the wreck that he realized he had more than a minor injury; Pruitt continued to work after the wreck past the time that he endorsed the two drafts involved on January 15,1971; following the wreck Employers Casualty Company’s employees viewed the laundry truck and had an estimate made on the damages it sustained in the wreck; those damages were estimated at $1,849.76; one of their adjustors negotiated a settlement of the claim with the president of Johnson Linen Service; a release was prepared and mailed to Johnson Linen Service; Employers Casualty Company advised that Johnson Linen Service and Travis Pruitt should both execute the release and return it to Employers Casualty Company, which Company would then send drafts to pay for the release; the release was dated December 28, 1970; it read as follows:

“RELEASE IN FULL OF ALL CLAIMS
“FOR AND IN CONSIDERATION of the payment to JOHNSON LINEN SERVICE and TRAVIS PRUITT of the sum of— ONE THOUSAND EIGHT HUNDRED FORTY-NINE AND 76/100 . _ Dollars ($1,849.76), the receipt of which is hereby acknowledged, I/we, being over 21 years of age, do hereby release, acquit and forever discharge CHAMPLIN PETROLEUM COMPANY and ROBERT L. BUTTRILL and any other persons, firms or corporations of and from any and all actions, causes of action, claims, demands, damages, costs, loss of service, expenses and compensation, on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting or to result from an accident that occurred on or about the 19th day of November, 1970, at or near Lipscomb and W. Daggett, Ft. Worth, Texas.
“I/we do hereby declare and represent that the injuries sustained are permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release it is understood and agreed that I/we rely wholly upon my/our own judgment, belief and knowledge of the nature, extent and duration of said injuries as well as the liability questions involved, and that I/we have not been influenced to any extent whatsoever in making this release by any representations or statements regarding said injuries, or liability, or any other matters, made by the persons, firms or corporations hereby released, or by any person(s) representing, or acting for him or them, or by any physician or surgeon by him or them employed.
“It is further understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment of said sum is not to be construed as an admission of liability on the part of Champlin Petroleum Company and Robert L. Buttrill by whom liability is expressly denied.
“This release contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this release are contractual and not a mere recital.
I/we further state that I/we have carefully read the foregoing release and know the contents thereof, and I/we sign the same as my/our own free act.
“WITNESS our hand and seal this the 28th day of December, 1970. “In presence of:
“WITNESSES TO SIGNATURES CAUTION!
“Read before signing.
(signed) “1. Jack Henckels. Pres. ISeaD
Johnson Linen Service
“2. /s/ Travis W. Pruitt (Seal!
Travis Pruitt”

The following additional facts were also undisputed:

Employers Casualty Company’s employees had been advised that Pruitt was not hurt in the wreck; Travis Pruitt’s name was put in the release by Employers Casualty Company because in settling cases it was the custom and practice of Employers Casualty Company to include in the release the names of both the driver and owner of the vehicle involved and this was done in order to get a full release from all possible claimants in order to protect their insureds; no one connected with Employers Casualty Company had any contact at all with Travis Pruitt in connection with the release and they made no statements to him at all; when the release was received at Johnson Linen Service it was turned over to J. A. Shockler, one of Pruitt’s immediate bosses, and he was told by his superior to get Pruitt to sign it; Shockler handed the release to Pruitt, who testified that he was told that the papers had to do with getting his truck back from the shop; he signed the release and gave it back to Shockler; he did not read it before signing it although he can read and he signed it voluntarily without any duress; he did not realize that by signing it he would give up any of his rights; he did not ask Shockler to read the release to him; on the release in print big enough for him to read without his glasses were the words, “Read before signing”; Pruitt did not expect to get anything for signing the release; Shockler took the signed release to Johnson Linen Service’s office and gave it to Richard McConn, the bookkeeper, who then mailed the executed release back to Employers Casualty Company; on receiving this release executed by both Pruitt and Johnson Linen Service, Employers Casualty then mailed two drafts drawn on it to the office of Johnson Linen Service; the drafts were mailed there because they knew that Pruitt worked there and they did not have his home address; both of the drafts were dated January 15, 1971; one of the drafts was for $1,849.76, payable to Johnson Linen Service and Travis Pruitt; the other draft was also executed by Employers Casualty Company and was payable to Travis Pruitt and The Coffey Clinic for $40.00; both of these drafts were mailed to Johnson Linen Service and were presented by its employee to Travis Pruitt for his signature; he endorsed both drafts and gave them to his employer; Pruitt did not personally receive any of the money represented by the drafts which were endorsed and cashed; the larger draft was for the exact amount of the estimated repair bill on the truck, and the $40.00 draft was for the medical service rendered Pruitt on the date of the wreck by Coffey Clinic; Pruitt knew that he was a payee in both drafts; and Pruitt testified that even if he had read the release he would probably have signed it for his employer’s benefit.

Pruitt’s position on this appeal is that he did not receive any money or other benefit out of the transactions when he executed the release and endorsed the two drafts and that there was therefore no consideration for him signing any of the three agreements. The trial court was also apparently of the opinion that in order for a consideration to have been present it was necessary for Pruitt to have actually received some money or other benefit out of the transaction. We say this because the two special issues submitted in its charge to the jury by that court were: (1) “Do you find from a preponderance of the evidence that no right, interest, profit, or benefit was received by Travis W. Pruitt because of his execution of the release . . and (2) “Do you find from a preponderance of the evidence that such right, interest, profit or benefit, as inquired about in Special Issue No. 1, was received by Travis W. Pruitt under the terms of the release instrument?” The second issue was submitted conditionally on a “He did so receive” answer to Issue No. 1. And apparently the court’s reasoning in sustaining appellee’s motion for judgment, in overruling appellant’s motion for judgment, and in rendering the judgment appealed from was that the release agreement evidenced by the release and the two drafts were not supported by a consideration because appellee did not end up with any part of the sums paid by Employers Casualty Company for the signing of the release.

We disagree with the appellee’s contention.

We hold that the undisputed evidence in this case shows that the release agreement evidenced by the release and by the two drafts were supported by a consideration.

On the strength of the release being executed by both Travis W. Pruitt and Johnson Linen Service, Employers Casualty Company parted with $1,849.76. The agreement was that it would pay out that sum to the two persons executing the release in exchange for their release of the causes of action therein specified. Pursuant to its agreement Employers Casualty Company did pay to those two parties its $1,849.76. It thus sustained a detriment. It was therefore not even necessary that Pruitt receive a benefit out of the transaction in order for there to have been a consideration for the agreement.

The law controlling the determination of this consideration question before us is stated in Lassiter v. Boxwell Brothers, Inc., 362 S.W.2d 884 (Tex.Civ.App., Amarillo, 1962, no writ hist.) as follows: “A valuable and sufficient consideration for a contract may consist of either a benefit to the promisor or a loss or detriment to the prom-isee. In other words, sufficient consideration for the agreement may consist of some right, interest, profit, or benefit that accrues to one party, or, alternatively, of some forbearance, loss, or responsibility that is undertaken or incurred by the other party. Accordingly, it is not necessary that the promisor receive a benefit under the agreement. On the contrary, if the prom-isee parts with some legal right or sustains some legal injury as the inducement for the agreement, this will be sufficient.” (Emphasis added.)

A case holding to the same effect is Jones v. Alvin State Bank, 332 S.W.2d 124 (Tex.Civ.App., Eastland, 1960, no writ hist.). For other cases on this point see 13 Tex. Jur.2d 178, Contracts, § 46.

We hold that by endorsing the two drafts, under the undisputed facts of this case, Pruitt released any cause of action he had against Champlin Petroleum Company, R. L. Buttrill and Employers Casualty Company.

On the back of both of the drafts was the following: “By endorsement hereon payee acknowledges and agrees to the amounts, purposes and terms stated on the face hereof.” The payees endorsed the drafts immediately beneath such writing. On the front of the large draft was the following: “Being for: Release in full of all claims against Champlin Petroleum Company and Robert L. Buttrill arising out of loss occurring on or about November 19, 1970, at or near Lipscomb and W. Daggett, Ft. Worth, Texas”. On the front of the $40.00 draft was written: “Being for: Medical services rendered Travis Pruitt for accident of 11-19-70 at or near Fort Worth, Texas.”

The case of Berry v. Guyer, 482 S.W.2d 719 (Tex.Civ.App., Houston, 14th Dist., 1972, writ ref., n. r. e.) is similar to the one here on appeal. The only releases there involved appeared on the back of the drafts. The wording on the back of the draft involved in that case was similar to that appearing on the back of both drafts in this case. In the Berry case, Berry was driving a car belonging to his fiance at the time of the wreck. Berry was told by his fiance that he would be required to sign the draft issued by the insurance carrier of the other party to the wreck. The draft was payable to Berry and his fiance for the exact amount of the ear damage. Berry testified, as did Pruitt here, that he did not understand that the effect of signing the draft would be to release any claim he had against the insurance carrier of the other party to the wreck. When Berry later sued the other party to the wreck for damages the trial court granted summary judgment against him decreeing that he had released his cause of action against the defendant when he endorsed the draft. The court in that case at page 720 of the opinion said:

“We cannot escape the simple, unambiguous and direct terms of the release above quoted. The draft was made payable to the order of Josie Miller and John H. Berry, and both, by their endorsements, signed the release which in its very words released the insurer and the insured (appellee) from ‘personal injuries and damage to property’ resulting from the accident. Mrs. Miller requested that appellant sign the draft and release, and Berry having damaged Mrs. Miller’s vehicle, it was to his legal interest to do so. Appellant merely claims by his affidavit that he did not understand that his signing of the draft would in any was release the insurance company in the payment of his claim for personal injuries. We see no possibility of mutual mistake under these circumstances.

“While an injustice may have occurred here, we believe that appellant has lawfully released his claims for personal injuries for which he sued. The trial court did not err in granting summary judgment in favor of appellee. See Fidelity-Southern Fire Insurance Co. v. Whitman, 422 S.W.2d 552, 557, 558 (Tex.Civ.App.—Houston (14th Dist.) 1967, writ ref’d n. r. e.). Affirmed.”

Pruitt had alleged that the release had been executed by him as the result of a mutual mistake and was not binding on him for that reason. We hold that the undisputed evidence in the case shows that Pruitt did not sign the release and drafts as a result of a mutual mistake. See Berry v. Guyer, supra.

A mistake by only one party to an agreement, where the mistake is not induced by the acts of the other party, is not grounds for setting the agreement aside. Southern National Bank of Houston v. Crateo, Inc., 458 F.2d 688 (5th Cir. 1972).

Pruitt also alleged in his petition that the release agreement was not binding on him because the consideration for such agreement had failed. We overrule that contention because the undisputed evidence showed that the consideration had not failed. Employers Casualty Company had suffered a detriment in giving up the $1,849.76 and $40.00 evidenced by the drafts. That defendant is still out those sums of money by virtue of the release or settlement agreement. The detriment it suffered still exists.

Pruitt’s remaining contention as to why he says the release or settlement agreement is not binding on him is because as a matter of law under the evidence in the case he says there was no delivery of the release or settlement agreement.

We overrule that contention.

Pruitt, on this point, relies on the case of Garcia v. Villarreal, 478 S.W.2d 830 (Tex.Civ.App., Corpus Christi, 1971, no writ hist.), wherein the court at page 832 held in speaking of a release: “Before the written contract becomes binding on the parties thereto, it must be executed and delivered with the intention that it shall become binding. . . .

“. . . The delivery of an instrument means parting with the possession or custody thereof with the evidenced intention that it becomes operative.” At the time the release in that case was turned over to the insurance company its representatives were told that one of the persons signing the release was making a claim for personal injuries that she received in the wreck. The draft was made out for the exact amount of the car damage. The plaintiff would not sign that draft. That court held that there was no proof of delivery of the release in that case. Since the signed release got into the hands of the insurance company with the stated intention that it was not to be effective against the plaintiff, there was no delivery thereof.

That case is not analogous to the one before us. Here Pruitt signed the release so that his employer could pay for the damage done to his truck in the wreck. He handed the signed release to his employer’s bookkeeper, McConn, who then got the president of Johnson Linen Service to sign it. McConn then mailed the executed release back to Employers Casualty Company, who, according to its agreement, then sent out the drafts to Pruitt and his employer. Pruitt was named in each draft as a joint payee.

We hold that the evidence in this case showed as a matter of law that Pruitt and his employer delivered the release to Employers Casualty Company with the intention that it become immediately operative. Taylor v. Sanford, 108 Tex. 340, 193 S.W. 661 (1917).

Appellant’s brief is lengthy. The parts of the case that we have hereinabove discussed dispose of the appeal. We are in agreement with appellant that the evidence in the case establishes as a matter of law that there was a consideration for the execution of the release; that the consideration therefor did not fail; that the release was not executed by Pruitt as a result of a mutual mistake; and that there was a delivery of the release by Pruitt to Employers Casualty Company with the intention that it become immediately operative. Those were the grounds pleaded by Pruitt as to why he says the release is not now binding on him. It follows that appellants are entitled to a reversal of the judgment.

The judgment is reversed and judgment is here rendered declaring that the release or settlement agreement executed by Pruitt on December 28,1970, is a valid and binding agreement and one effect of it is to bar Pruitt from suing the appellants herein for damages arising out of the November 19, 1970, car wreck between the truck driven by Pruitt and the car driven by Buttrill.


source: Caselaw Access Project

author: EVANS, Justice.

license: Public Domain

text:
    Mrs. Clinton (Leona) WEBER et al., Relators, v. Judge John SNELL, Jr., et al., Respondents.
    No. 16738.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 1, 1976.
    Rehearing Denied July 29, 1976.

      Leona Weber, Clinton Weber, pro se.
    Clyde Gordon, Houston, for respondents.
   EVANS, Justice.

Mrs. Clinton (Leona) Weber, individually and as trustee to Solid Rock Refuge, Inc., and Clinton C. Weber have filed application for writs of mandamus against the Honorable John Snell, Jr., Judge of the 152nd Judicial District Court of Harris County, Texas, the Honorable Thomas J. Stovall, Jr., Judge of the 129th Judicial District Court of Harris County, Texas, the Honorable Arthur Lesher, Judge of the 157th Judicial District Court of Harris County, Texas, and Hermine Bleyl, Clerk of the 152nd Judicial District Court of Harris County, Texas. Although Leona Weber purports to represent Solid Rock Refuge, Inc., she is not an attorney licensed to practice before the courts of this State and we therefore consider her application to be only on her own behalf.

The transcript filed in support of relators’ application reflects the following sequence of events: Clinton Weber, Solid Rock Refuge, Inc., and Mrs. Clinton Weber, as plaintiffs, brought an action against Full Gospel of Christ Fellowship, Inc., Paul Richardson, its president, Bible Way Temple, its trustees, James E. Howell, Willis Warren and E. L. Milton, First State Bank of Greens’ Bayou and Stewart Title Guaranty Company, as defendants, alleging that the plaintiffs had agreed to convey to defendant Full Gospel of Christ Fellowship, Inc. certain property in Harris County, Texas, for a purchase price of $18,000.00 with a $500.00 earnest money deposit and the balance to be paid in cash; that the agreement had been made upon the representation of Richardson that the property would be used for the same purposes as it had been used by plaintiffs, that is, as a bible school and as a refuge for homeless and neglected girls. That contrary to such representation the defendant Full Gospel of Christ Fellowship, Inc., the day prior to the closing of such transaction, conveyed the property to the defendant Bible Way Temple. The plaintiffs sought to have their deed cancelled and in the alternative sought damages; they also sought a restraining order prohibiting the defendants from interfering with their continued use of the property.

The plaintiffs’ first amended original petition was filed in said Cause No. 913,602 on April 27, 1973. The docket sheet reflects that on August 15, 1973, a non-suit was taken by the plaintiffs and that the cause proceeded to trial on defendants’ cross-action. The transcript contains a cross-action brought on behalf of Full Gospel of Christ Fellowship, Inc. and James E. Howell against cross-defendants Clinton Weber and wife, Mrs. Clinton Weber, wherein it is alleged that cross-defendant Clinton Weber, with the encouragement of cross-defendant Mrs. Weber, struck Howell causing him bodily injury, pain and medical expense for which he sought damages in the amount of $6,000.00, and a temporary injunction to prevent cross-defendants from such further conduct. A docket entry reflects that the court decreed the cross-plaintiffs should take nothing on their cross-action “as per decree” and ordered a severance as to the cross-plaintiffs’ application for a temporary injunction and right of possession “as per order.” It further reflects that an order on the non-suit was signed by the court on August 17, 1973. This order is not in the transcript but we have obtained a copy of the order dismissing the plaintiffs’ action upon their non-suit.

The transcript also contains an order designated “Final Judgment” in Cause No. 913,602, which recites that on August 15, 1973, the plaintiffs were granted a non-suit and that the cause proceeded to trial on the cross-action for damages which the court denied and that the court ordered a severance as to the temporary relief sought by the cross-plaintiffs which remained on the docket. This order reflects entry on October 19, 1973, and was apparently signed by Judge Snell; however, the signature is lined through in ink and the docket notation is also marked through as though the court intended to strike the order. No explanation for such marking appears in the record.

The docket sheet further indicates that on September 24, 1973, temporary relief on the severed cross-action was denied “as per order.” There appears in the transcript an order of this date signed by Judge Snell on October 1, 1973, denying temporary injunc-tive relief to the cross-plaintiffs for possession of the premises in question.

On September 4, 1973, Clinton Weber, Solid Rock Refuge, Inc., and Mrs. Clinton Weber, as plaintiffs, brought a separate action as Cause No. 955,310 against defendants Full Gospel of Christ Fellowship, Inc., its president Paul Richardson, Bible Way Temple, James E. Howell and Willis Warren, which alleged essentially the same cause of action as set forth in their earlier action (Cause No. 913,602) which was dismissed upon their non-suit. This petition was answered by the defendants on November 13,1973, and a cross-action for damages in the way of interest, rentals and other relief was also filed.

On February 6, 1976, Clinton Weber, Solid Rock Refuge, Inc., and Mrs. Clinton Weber filed their first amended original petition in a third action, Cause No. 958,988, against defendants First State Bank & Trust Company of Houston, the Stewart Title Guaranty Company, Miles Strickland and G. W. Archer, alleging damages by reason of said defendants’ participation in the sales transaction between the plaintiffs and Full Gospel of Christ Fellowship, Inc.

The docket sheet reflects that on June 3, 1974, the court, upon motion, ordered Cause No. 958,988 and Cause No. 955,310 consolidated with Cause No. 913,602, and that an order of consolidation was signed on July 8, 1974. This order does not appear in the transcript before us.

On March 11, 1975, the case proceeded to trial before a jury and according to the docket sheet the plaintiffs discharged their attorney in open court and a mistrial was declared. All costs incurred to that date were taxed against the relators. Subsequently by final judgment in the consolidated cause pending in the 129th Judicial District Court, which judgment is dated August 25,1975, and was signed by the Honorable Thomas J. Stovall, Jr., Judge of said court, on March 1, 1976, the court entered summary judgment in favor of the Bible Way Temple, as cross-plaintiff, against cross-defendants Solid Rock Refuge, Inc., a corporation, Clinton Weber and wife, Leona Weber, for the title and possession of the property in question, ordered that said cross-defendants take nothing against Pull Gospel of Christ Fellowship, Inc., Paul Richardson, the Bible Way Temple, E. L. Milton, James E. Howell and Willis Warren, individually or as trustees of the Bible Way Temple, G. W. Archer, Miles Strickland and First State Bank & Trust Company of Houston, and directed that Stewart Title Guaranty Company pay to Clinton Weber and Leona Weber, as trustees for Solid Rock Refuge, Inc., the sum of $7,799.30 which had been held by said company and that upon such payment said company was dismissed as a party defendant. It further decreed that all costs of suit were taxed against the plaintiffs, Clinton Weber and Leona Weber. Relators have filed an appeal bond indicating their desire to appeal from this judgment.

In their amended petition for writs of mandamus filed herein, relators seek to compel Judge Lesher to enter an interlocutory default judgment in Cause No. 955,310; to compel Hermine Bleyl, Clerk of the 152nd Judicial District Court, to execute judgment for costs in their favor in Cause No. 913,602; to require Judge Snell to enter the final judgment dated August 15, 1973, in Cause No. 913,602, and to compel Judge Stovall to declare void all judgments entered by him pursuant to the consolidation order and to require him to transfer and separate the causes from Cause No. 913,602 and order such causes returned to the courts in which the actions were initially filed. Relators further seek to have title to the disputed property declared in their favor.

It is not entirely clear from the record before us whether the judgment which was evidently signed by Judge Snell on October 19, 1973, granting plaintiffs non-suit and ordering cross-plaintiffs take-nothing on their suit for damages was intentionally stricken as an order of the court. Although this order purports to be a final judgment, it is fairly apparent that Cause No. 913,602 was retained on the court’s active docket until June 3,1974, when it was consolidated with the related causes, Nos. 958,988 and 955,310.

While it may have been error for Cause No. 913,602 to have been retained on the court’s active docket following entry of the order denying temporary relief to the cross-plaintiffs, such error could only affect rela-tors’ right to have costs taxed against the cross-plaintiffs on their original cross-action. Since Cause No. 913,602, as subsequently consolidated, resulted in the final judgment entered March 1, 1976, relators were entitled to seek to have costs retaxed in the consolidated action. It does not appear that any motion to retax costs has been filed by relators in the consolidated proceedings.

This court has jurisdiction to issue writs of mandamus to protect or enforce its acquired jurisdiction over an appeal, Article 1823, Tex.Rev.Civ.Stat.Ann., or to compel a judge of a district court to proceed to trial and judgment in a cause. Article 1824, Tex.Rev.Civ.Stat.Ann, The allegations of relators’ petition for mandamus do not show that the issuance of writs of mandamus are necessary for the protection or enforcement of this court’s jurisdiction over their appeal. Neither do such allegations demonstrate that the district courts refused to proceed to trial and judgment; rather, it is clearly shown that a final judgment was entered in the consolidated proceedings.

This court is without authority to compel by mandamus the entry of an interlocutory default judgment or to declare invalid the lower courts’ orders and judgment rendered in the consolidated actions. Our authority upon petition for mandamus does not extend to the judicial function of determining whether, as a matter of law, a particular judgment should have been rendered. Ratcliff v. Dickson, 495 S.W.2d 35, 36 (Tex.Civ.App.-Houston [1st], 1973, no writ). While a court of civil appeals has jurisdiction to mandamus a district judge to proceed to trial and judgment, it may not tell that court what judgment it should enter. Crofts v. Court of Civil Appeals, 362 S.W.2d 101 (Tex.1962).

Furthermore, a writ of mandamus to compel a district judge to proceed to trial or judgment should be issued only when it is shown that there was a refusal by the district court to perform the duty demanded of him or where the circumstances evidence the futility of making the demand. Harney v. Pickens, 120 Tex. 268, 37 S.W.2d 717, 718 (1931). In the case before us it has not been demonstrated that the district court refused, upon proper motion, to enter an appropriate judgment finally disposing of the defendants’ original cross-action in Cause No. 913,602. Thus, relators have failed to establish a right to relief by writ of mandamus. Ratcliff v. Dickson, supra. If there was error in continuing Cause No. 913,602 on the active docket of the court and in the consolidation of that cause number with relators’ subsequently filed actions, such error must be corrected by appeal, if at all. Starr County v. Laughlin, 283 S.W.2d 830, 832 (Tex.Civ.App.-San Antonio, 1955, no writ); Burke v. Loughridge, 314 S.W.2d 957, 959 (Tex.Civ.App.-San Antonio, 1958, no writ). We accordingly hold that relators did not establish their entitlement to writs of mandamus against the three district judges against whom relief was sought.

We further hold that this court is without authority to order the Clerk of the District Court to issue execution for costs in the original Cause No. 913,602. Our jurisdiction with respect to the issuance of writs of mandamus is limited to that afforded by Articles 1823 and 1824, Tex.Rev.Civ.Stat. Ann. We further note that the trial court did not adjudge costs in the original Cause No. 913,602 and relators have not alleged that the court refused, upon request, to render judgment for costs. Rule 149, Texas Rules of Civil Procedure, expressly provides that execution will not issue for costs until after judgment has been rendered therefor. See also Criswell v. Ragsdale, 18 Tex. 443 (1857).

The relators’ petition for writs of mandamus is in all respeets denied.


author: PER CURIAM:

text:
    The STATE of Texas, Appellant, v. Don L. BAKER, Appellee.
    No. 12415.
    Court of Civil Appeals of Texas, Austin.
    July 7, 1976.
    Rehearing Denied July 28, 1976.

      Davis Grant, Gen. Counsel, State Bar of Texas, Austin, for appellant.
    Bob Gibbins, Gibbins & Spivey, Austin, for appellee.
   PER CURIAM:

This is an appeal from a disbarment proceeding brought by the appellant, the State Bar of Texas, against appellee Don L. Baker, a practicing attorney. Appellee was charged with violations of the Code of Professional Responsibility when he purchased property on behalf of his client at a sheriff’s sale and used that title to secure further compensation for himself without notification to, and the consent of, his client.

Trial was to a jury which found, in essence, that the appellee had acted in good faith and had not engaged in unethical conduct. The court accepted the verdict of the jury and entered judgment exonerating ap-pellee from all charges of professional misconduct except for a violation of Disciplinary Rule 5-107. It was for this violation that the court entered a judgment of reprimand against appellee. Appellant Griev-anee Committee does not attack the reprimand. Appellant appeals from that part of the judgment exonerating appellee from charges of professional misconduct. We reverse the judgment and remand the cause to the district court.

The facts upon which we base our judgment were mostly undisputed.

Appellee was a partner in the law firm of Baker, Watkins, Ledbetter, Hayden and Ramsey. This firm was employed in January of 1973 by Lester Moore Tank and Supply Company through Dunn and Bradstreet, Inc., to collect a debt owed to the Lester Moore Tank and Supply Company by the Apollo Oil Corporation and one Mason Fargason.

It was determined that it would be necessary to file suit in order to collect the debt. In March, 1973, a status report was sent by appellee’s law firm to Dunn and Bradstreet stating the requirements for suit to be filed. These requirements included a $55 advanced cost charge and a $75 noncontingent suit fee or a one-third contingent fee agreement in lieu of the noncontingent suit fee. It was noted in the report that a reasonable “net suit fee” might be charged.

The law firm then received a check from Dunn and Bradstreet for the $55 advanced costs in May, 1973. The $75 noncontingent suit fee was never received.

Suit was filed against Mason Fargason and Apollo Oil Corporation in July, 1973, and a default judgment was taken against both defendants in September of 1973. In December of 1973, a writ of execution was forwarded to the Sheriff of Karnes County, Texas, with instruction to sell all the judgment debtor’s interest in a gas well in Karnes County.

On February 5, 1974, the sheriff’s sale was held and an employee of the appellee’s law firm purchased the property with a high bid of $1.00.

On February 14, 1974, the appellee received a letter from the County Attorney of Karnes County notifying him that there was a defect in the publication of the notice for sale by the sheriff.

In February, 1974, appellee’s law firm sent a status report to Dunn and Bradstreet, Inc., notifying them of the purchase and of the defect.

On April 1, 1974, the sheriff executed a sheriff’s deed conveying to “Don L. Baker, Trustee, his heirs and assigns” that interest purchased at the sheriff’s sale held in February, 1974.

On April 10, appellee met with Mason Fargason, the judgment debtor. At this meeting, Fargason tendered to appellee a cashier’s check for $1,082.49, which was the entire amount of the judgment, including $55.00 court costs, interest of $30.09, and court-awarded attorney’s fees of $300.00. Appellee accepted the check and, in addition, proposed to prepare a release of the judgment and to convey an undivided two-thirds working interest in the gas well purchased at the sheriff’s sale to the designee of Fargason. By the terms of this settlement agreement, appellee was to keep a one-third working interest in the gas well and apply all division order payments from the interest until the sum of $4,250 was received. Of the $4,250 to be obtained from the production payments, $2,000 was to be a net suit fee to be paid to appellee. The remainder of the money was to go toward the payment of two nonjudgment claims by other clients of appellee against Fargason that appellee carried in his dormant files. The interest in the gas well retained by appellee was to be reconveyed to Fargason only after the sum of $4,250 had been received.

On April 11, 1974, appellee forwarded a status report to Dunn and Bradstreet, Inc., in which he stated, “Have recovered $752.40 principal in full . . . and $55 court costs. Have deducted $250.00 commission and enclose check for $556.60 . . .” At this point appellee had collected $550.00 in attorney’s fees, $250.00 as a contingent fee and another $300.00 awarded in the judgment against Mason Fargason.

On April 16, 1974, appellee executed a supplemental Division Order as “Don L. Baker, Trustee.” At least five payments were received by the appellee after that date. These payments, amounting to $1,844.14, were deposited by appellee in his personal account and not into a separate “trust account.”

Appellee testified that the only notice given to his client, Lester Moore, as to the final disposition of the case and the nature of the fees received was in the above-mentioned letter to Dunn and Bradstreet from appellee’s law firm noting a recovery of $752.40 plus $55 in court costs. Appellee did not notify his client, Lester Moore, that in addition to his commission, he had received court-awarded attorney’s fees from Mason Fargason and a $2,000 “net suit fee” to be withheld from the production payments of this interest or that he had the non judgment claims of two other clients from his dormant files paid.

Appellee testified that he managed to have his “net suit fee” of $2,000 paid by the judgment debtor without any negotiation with his client. Indeed, appellee admitted that, had he negotiated the net suit fee with his client, the fee would have been less than the $2,000 which he charged the judgment debtor. Out of the “net suit fee” of $2,000 contracted for by appellee, he actually received $1,844.14 paid by virtue of such production payments.

The matter of appellee’s use of the title acquired as trustee for his client, Lester Moore, was brought before the Grievance Committee of District Number Nine. The Grievance Committee took action by bringing a formal complaint against appellee. This complaint, subsequently amended, was filed in April, 1975, in the district court of Travis County, Texas, charging appellee with a violation of Disciplinary Rule 1— 102(A)(1) and eight other specific violations of the Code of Professional Responsibility.

The charge contained seven special issues, all of which the jury answered unfavorably to appellant. In response to special issue number one, the jury failed to find that appellee engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation with reference to his client, Lester Moore. Likewise, the jury, in answering special issue number two, failed to find that Baker intentionally engaged in conduct that was prejudicial to the administration of justice. By their answer to special issue number three the jury failed to find that appellee intentionally engaged in conduct adversely reflecting upon his fitness to practice law. In response to special issue number four the jury failed to find that appellee intentionally failed to disclose information to his client, Moore, which an attorney endowed with ordinary ability and an ordinary sense of propriety would have disclosed to his client under the same or similar circumstances. In answering special issue five, the jury found that on or about April 10, 1974, appellee acted in “good faith” in his attorney-client relationship with Moore, and his agent, Dunn and.Bradstreet. The jury answered special issue six that appellee’s acceptance of compensation from Fargason did not adversely influence his representation of his client, Moore. Finally, the jury refused to find that the funds from the production payments which appellee deposited in the bank belonged to his client, Moore.

Appellant Grievance Committee filed a motion for judgment non obstante veredic-to. In general, the grounds for that motion were that professional misconduct had been shown as a matter of law, that the only disputed questions were questions of law, and that the jury’s findings should be disregarded.

The court overruled the motion for judgment non obstante veredicto, except for the ground which urged a violation of Disciplinary Rule 5-107. The court accepted the verdict of the jury and found appellee not guilty of professional misconduct, except insofar as he received compensation from someone other than his client without full disclosure.

On the basis of the jury’s findings, the court refused to disbar or suspend the ap-pellee and entered judgment that appellee be reprimanded.

Appellant is before us on six points of error. Appellant’s first three points of error complain of the error of the trial court in failing to hold as a matter of law that appellee violated three additional Disciplinary Rules. First, appellant urges that Disciplinary Rule 5-103 was violated in that appellee acquired a proprietary interest in the cause of action or subject matter of the litigation when he took for his own use the production payments from the judgment debtor’s gas well purchased by appellee at the sheriffs sale.' Furthermore, he violated that rule when he entered into a “settlement agreement” with the judgment debtor without his client’s knowledge and consent. Second, appellant urges error of the court in failing to hold as a matter of law that appellee violated Disciplinary Rule 7-101(A)(3) by intentionally prejudicing or damaging his client when he willfully failed to advise his client of the value of the property which he purchased at the sheriff’s sale and of the terms of the settlement agreement of April 10, 1974. Third, appellant contends the court erred in failing to hold as a matter of law that appellee violated Disciplinary Rule 9-102(A), (B)(1), (3), and (4) by receiving for his own use the production payments obtained as a result of the settlement agreement of April 10, 1974, while allegedly acting as trustee for his client.

In our judgment the trial court erred when it overruled appellant’s motion for judgment non obstante veredicto. One ground in appellant’s motion for judgment non obstante veredicto was that appellee as a matter of law violated the Code of Professional Responsibility, as set forth in Article XII, Section 8 of the Rules Governing the State Bar of Texas, Vol. 1A, Vernon’s Civil Statutes, when the appellee agreed to take the $2,000 production payment in the settlement agreement of April 10, 1974, and when he actually received the $1,844.14 paid by virtue of such production payment.

Disciplinary Rule 5-103 is entitled: “Avoiding Acquisition of Interest in Litigation” and reads:

“(A) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation he is conducting for a client, except that he may:
(1) Acquire a lien granted by law to secure his fee or expenses.
(2) Contract with a client for a reasonable contingent fee in a civil case.”

This directive is clear and it is equally evident that it was breached by appellee as a matter of law by the course of his conduct. Canon 5 of the State Bar Rules is entitled: “A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client.” Ethical Consideration EC 5-1 states: “The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interest of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.” Although the canons of ethics and their ethical considerations set out in the Rules are not binding upon this Court, those canons are highly persuasive and are due our utmost consideration.

The problem of attorneys acquiring interests in litigation apart from that of their clients is not new. In Douglass v. Blount, 95 Tex. 369, 67 S.W. 484 (1902), the Supreme Court discussed problems associated with attorneys purchasing property at sales under whose process they controlled. There the Court stated a limited exception to the earlier rule that an attorney was strictly forbidden to purchase property at such sales. Courts will severely scrutinize but will uphold such a sale to an attorney when made under circumstances of fairness and when the attorney either had the consent of his client to purchase the property after full disclosure or paid an amount sufficient to discharge the debt. When these requirements have been met, the client has in no way been harmed and has, indeed, benefited by having an additional bidder at the sale.

In the case at bar, appellee purchased the property at the sheriff’s sale for $1.00 and as “trustee.” The apparent purpose of the purchase was to secure a means to satisfy his client’s claim; however, that purpose had been met when the judgment debtor offered to pay the entire judgment claim including court costs and attorney’s fees. Moore had contracted with appellee to bear the costs of recovering the debt. As long as appellee acted as trustee for his client, Moore, he had no proprietary interest in the subject matter of the litigation. When appellee secured the property at the sheriff’s sale and when he began to act in a capacity other than as trustee for his client, he violated DR 5-103 in spirit and in fact. Disciplinary Rule 5-103 is a preventive rule which does not require a showing of actual harm to a client. Instead, it prohibits attorneys from acquiring proprietary interests in the subject matter of litigation in order to avoid the possibility of adverse influence upon the attorney and harm to the client.

Appellee’s primary duty was to his client, Lester Moore. In extracting the settlement agreement from the judgment debtor, ap-pellee exceeded the terms of his employment contract. When he entered into this agreement his client received compensation for only two-thirds of the original debt while appellee acquired additional compensation for himself (and allegedly acquired the recovery of two nonjudgment claims from his dormant files). The foreclosure and the subsequent agreement between ap-pellee and the judgment debtor was unknown to Moore and resulted in appellee’s recovering a sum substantially greater than the amount of the original debt in suit. This recovery arose from, and continued to be, an integral part of the original suit. Appellee contended that no ethical considerations were pertinent at the time of the settlement agreement in question because the attorney-client relationship between ap-pellee and Moore had been terminated at that time. We reject this contention because the attorney-client relationship had not terminated.

If there is any merit to appellee’s contention that there is a custom among attorneys who specialize in commercial law to attempt to acquire from the debtor additional attorney’s fees in collection efforts, including the net suit fees, such a custom cannot be considered a defense to the course of conduct complained of in this suit. A net suit fee is usually charged when the attorney must use extraordinary efforts to collect the debt. In this case, if appellee believed his efforts justified payment of a net suit fee, his responsibility was to fully inform his client, Lester Moore, of his efforts and the present status of the file, and to negotiate an agreement with his client on the amount of additional compensation to be paid, and the manner and source of payment. Instead of consulting with his client, appellee retained title to the debtor’s property for the purpose of collecting his “net suit fee.” Under these circumstances, appellee cannot rely on this trade custom as a mitigating factor in the trial court’s consideration of punishment.

Appellant’s second point of error is that the trial court erred in failing to hold that appellee violated DR 7-101(A)(3) as a matter of law. Disciplinary Rule 7-101(A)(3) is entitled: “Representing a Client Zealously” and the relevant part is as follows:

“(A) A lawyer shall not intentionally:
sfc sfc ¾: * * *
(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).”

The gravamen of appellee’s violation of this rule is his failure to notify his client of the value of the property purchased “as trustee” and of the terms of the settlement agreement. As a result of this conduct by appellee, his client never received full payment on the debt of $752.40.

The relationship between attorney and client has been held to be one of uberri-ma fides. Smith v. Dean, 240 S.W.2d 789 (Tex.Civ.App.1951, no writ). This has been described as: “The most abundant good faith; absolute and perfect candor or openness and honesty; the absence of any concealment or deception, however slight.”

We hold that Moore, as a matter of law, was entitled to know in detail whatever recovery appellee was able to obtain from the judgment debtor. It is true that appellee had an employment contract with Moore which set the compensation at one-third of the recovery. Nonetheless, Moore was still entitled to full recovery if such was possible. The failure to present this information to Moore was in itself harmful and prejudicial to his best interests.

Appellant’s third point of error is that the district court erred in failing to enter judgment, as a matter of law, that appellee violated Disciplinary Rule 9 — 102. Disciplinary Rule 9-102 is entitled: “Preserving Identity of Funds and Property of a Client” and provides in part as follows:

“(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and ho funds belonging to the lawyer or law firm shall be deposited therein .
“(B) A lawyer shall:
“(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
* * * * * *
(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.”

Proving a violation of Disciplinary Rule 9-102 necessarily involves proof that Moore owned the production payments paid over to appellee. Appellant failed to make that proof. In that connection the jury failed to find that “. . . the funds from the production payment Don Baker deposited in his bank account belonged to his client, Lester Moore.” (Emphasis added) Appellant does not directly attack that jury finding by any point of error, nor is there any discussion under point of error three contending that the evidence conclusively showed that the funds belonged to the client.

The client might have had some character of claim to that part of the production payment which represented the contingent fee which he agreed to pay ap-pellee. We fail to understand, however, that the client had any right or claim to the balance of the sum represented by the production payments.

In connection with point of error three, appellant also asks this Court to impose a constructive trust, in favor of the client, upon the proceeds received by appel-lee from the production payments. With respect to that contention, one problem, among others, is that appellant asked for no such relief in the trial court, and appellant is, of course, precluded from obtaining that relief in this Court.

Because of our disposition of this appeal, it is not necessary to answer the balance of appellant’s points of error.

Appellee attacks the judgment by a cross-point. In the cross-point appellee contends that the district court erred in granting appellant’s motion for judgment non ob-stante veredicto wherein it was found that appellee was guilty of professional misconduct, for the reason that the jury finding of appellee’s good faith was a complete defense.

An attorney, in a malpractice or a disbarment suit, is not liable for an error in judgment if he acts in good faith and in an honest belief that his advice and his acts are well founded and in the best interest of his client. Cook v. Irion, 409 S.W.2d 475 (Tex.Civ.App.1966, no writ), Hicks v. State, 422 S.W.2d 539 (Tex.Civ.App.1967, writ ref’d n.r.e.). The good faith defense should apply only in those situations where the attorney exercises his best judgment believing that his decision is in the best interest of his client. Hicks v. State, supra. In the April 10 transaction, appellee possessed all the facts, and he accomplished exactly what he set out to do. For example, he knew by that transaction he was to receive compensation for legal services from one other than his client. Moreover, appellee’s effort to acquire additional compensation, over and above that effort required to obtain recovery for his client, was expended strictly for his own interest. The good faith defense is not available to appellee, since in our view no such judgment call in the interest of his client was involved in the transaction.

Applying this rule to the facts in the case at bar, we are of the opinion that the district court properly disregarded the jury’s answer of good faith. The cross-point is overruled.

Whether an attorney, upon proper proof of violation of the Disciplinary Rules, should be disbarred, suspended, or reprimanded, is a matter addressed to the sound discretion of the trial court. State v. Ingram, 511 S.W.2d 252 (Tex.1974), Smith v. State, 490 S.W.2d 902 (Tex.Civ.App.1972, writ ref’d n.r.e.). With respect to the assessment of punishment, the role of the appellate courts is to determine whether or not the particular assessment of punishment by the district court was an abuse of discretion.

We have determined that, as a matter of law, appellee violated Disciplinary Rules 5— 103 and 7-101(A)(3). Appellant did not appeal the assessment of reprimand for appel-lee’s violation of Disciplinary Rule 5-107.

The judgment is reversed and the cause is remanded to the district court to consider, in its discretion, the assessment of punishment against appellee for his violation of Disciplinary Rules 5-103 and 7— 101(A)(3). State v. Ingram, supra, Smith v. State, supra. In its discretion the district court may assess one punishment for the violation of the two Disciplinary Rules, or the court may assess a separate punishment for the violation of each Disciplinary Rule. Also, a violation of more than one of the Disciplinary Rules may be considered together to assess a greater penalty if, in the court’s view, the conduct in its entirety constitutes a more serious infraction than the breach of each individual Disciplinary Rule. See also Galindo v. State, 535 S.W.2d 923 (Tex.Civ.App.1976, no writ).

Reversed and Remanded.

      . The pertinent parts of DR 5-107, Tex.Rev. Civ.Stat.Ann. art. 12, § 8 (1973) are as follows: “DR 5-107. Avoiding Influence by Others Than the Client.
      (A) Except with the consent of his client after full disclosure, a lawyer shall not:
      (1) Accept compensation for his legal services from one other than his client.
      (2) Accept from one other than his client any thing of value related to his representation of or his employment by his client.”
      * * * * * *

      . In its motion appellant contended that appel-lee, as a matter of law, had violated D.R. 1-102(A)(4); D.R. 1-102(A)(5); D.R. 1-102(A)(6); D.R. 5-103; D.R. 5-107(A)(l); D.R. 7-101(A)(3); D.R. 7-102(A)(3); D.R. 9-102(A), (B)(1), (3), and (4).

      .Appellee contends that it is uncontroverted that Moore was notified on February 21, 1974, that his law firm had been high bidder at the sheriffs sale to dispose of the debtor’s interest in a gas lease in Karnes County and also, that the debtor had been in contact with appellee’s law firm concerning payment of the judgment.

      .For a discussion of custom in this regard see: Employers Casualty Company v. Tilley, 496 S.W.2d 552 (Tex.1973).

      . Black’s Law Dictionary 1690 (4th ed. 1968).


author: SHANNON, Justice.

text:
    N. R. C., INC., et al., Appellants, v. Phil HUCKABEE et ux., Appellees.
    No. 12455.
    Court of Civil Appeals of Texas, Austin.
    July 14, 1976.
    Rehearing Denied Aug. 18, 1976.

      Barry Bishop, Clark, Thomas, Winters & Shapiro, Austin, for appellants.
    Samuel D. McDaniel, Austin, for appel-lees.
   SHANNON, Justice.

Appellees, Phil Huckabee, and wife, Hazel D. Huckabee, sued appellants, N.R.C., Inc., National Homes Construction Corporation, and National Homes Corporation, in the district court of Travis County. By their suit appellees sought the rescission and cancellation of a “contract for deed” to a parcel of land which appellees purchased from appellants. After trial to a jury, the district court entered judgment rescinding the contract and ordering appellants to return the sum of $10,592.63 paid by appellees pursuant to the contract. We will reverse that judgment.

Although they pleaded several grounds for rescission and cancellation, appellees elected to submit their case upon theories of (1) fraud and (2) violation of 15 U.S.C. 1701 et seq. (1968), the “Interstate Land Sales Act.”

The facts were that appellants invited appellees to view their real estate development, “Lago Vista.” Appellees visited Lago Vista in August, 1972. The lot which interested appellees, and for which they ultimately contracted, was situated on a rocky hillside overlooking Lake Travis. During their visit appellees saw several modular houses built by appellants and a sales brochure displaying those houses.

Appellee Hazel Huckabee testified that appellants’ salesman discussed with them the location of a particular house plan, termed the “Granada,” on a natural “shelf” site on the upper side of the lot. The salesman assured appellees that a “Granada” style house could be located on the shelf. The salesman also showed appellees item “sixteen” of the property report, filed with the United States Department of Housing and Urban Development, which stated that no special foundation work would be necessary to construct a one-story residential structure in the subdivision. Mrs. Huckabee testified further that the salesman satisfied them that appellants could build the house on the lot. Appellees entered into the contract to purchase the property before they departed Lago Vista.

In response to a letter from appellees, appellants wrote appellees on April 18, 1973, in an effort to induce appellees to enter into a building contract. Appellants’ letter read as follows:

“Thank you for your recent inquiry concerning the building of our ‘Granada’ on lot 3152. This is a very beautiful plan, which includes approximately $1600.00 in custom-built cabinets.
“It would be impossible to say exactly what the final cost would be, as that is controlled a great deal by the treatment given to your interior and exterior finish. “I can give you a range at this time of between $39,500.00 and $42,500.00. The time of construction would be between 90 and 120 days, from the day we start construction.
“If you would like more specific information, please contact me directly.”

Upon trial, the case was submitted to the jury by seven special issues. With respect to the special issues submitting appellees’ theory of fraud, the jury answered that appellants’ salesman represented to appel-lees that the lot was suitable for the construction of a modular residence on that part of the lot which appellees selected; that appellees relied upon the representation in entering into the contract; and that the representation was false. Apropos ap-pellees’ ground of recovery based upon the violation of the Interstate Land Sales Act, the jury answered that special foundation work was necessary in order to build the modular residential home on the lot, and that appellees became aware of the necessity for the special foundation work in June, 1974. The jury responded further that the representation concerning no need for special foundation work was a material inducement to appellees entering into the contract and that appellees relied upon that representation.

Appellants have three points of error concerning appellees’ ground for rescission based upon appellants’ alleged fraud. Point of error two is that the salesman’s representation does not support the remedy of rescission. We agree.

There were two representations which probably could have formed the basis for appellees’ suit for fraud. The first was the salesman’s assurance that appellants could, and would, build a Granada model house on the desired location. The second representation was contained in the letter quoted above which stated that appellants would build the house on the lot for about $39,500 to $42,500.

Both representations were promises of future action. Even so, fraud can be premised upon a promise of future action when accompanied by a present intention not to perform. Stanfield v. O’Boyle, 462 S.W.2d 270 (Tex.1971), Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S.W. 472 (1892). We have read the statement of facts, and it contains no evidence that appellants did not intend to perform at the time the representations were made.

The right to rescission, based upon the appellants’ alleged violation of the Interstate Land Sales Act, is the subject of appellants’ remaining points of error. Section 1709(a) of that Act provides a cause of action to a purchaser of a lot in a subdivision if the required property report contains an untrue statement of a material fact.

As previously written, appellants, in answer to a question in the “H.U.D.” property report, had responded that no “special foundation work” on the land would be necessary in connection with the construction of a one-story residence. The jury’s answer to special issue four was that “special foundation work” would be necessary to construct the Granada model house on the lot. Point of error four is that the jury’s answer was supported by no evidence. Appellants’ position is that the answer of the jury to special issue number four was legally immaterial.

The term, “special foundation work,” is not defined in the H.U.D. property report, and according to the parties, no definition of that phrase is contained in the Rules and Regulations of the Office of Interstate Land Sales Registration.

Appellants argue that the term “special foundation work” means more than adjusting the surface of the lot to permit a flat foundation or floor, or making a flat floor by using pier and beams, because this type of ground preparation exists in every construction effort designed to produce a flat floor on a surface that is not already absolutely flat. Appellants maintain that “special foundation work” must necessarily refer to and contemplate more than a lot which is not level, and must refer to some unusual soil condition not apparent to the viewer, such as a swamp or fault line, rather than merely to a hillside lot. We agree with appellants’ argument, and we sustain point of error four.

The judgment is reversed and judgment is here rendered that appellees take nothing.

Reversed and Rendered.


author: PER CURIAM.

text:
    Alex R. TANDY, Petitioner, v. Calvin GUEST, Chairman, Executive Committee, Democratic Party of Texas et al., Respondents.
    No. 17807.
    Court of Civil Appeals of Texas, Fort Worth.
    July 15, 1976.

      Bill W. McCoy, Odessa, for petitioner Alex R. Tandy.
    John R. Creighton and David Cleveland, Mineral Wells, for respondent Tom Creighton.
    Joseph Connally, Odessa, for respondent Calvin Guest.
   OPINION

PER CURIAM.

This is an original proceeding by which petitioner Alex R. Tandy sought mandamus to compel Calvin Guest, Chairman of the Executive Committee of the Democratic Party of Texas, to direct and conduct a recount of all the votes cast in the contested May 1, 1976, race between petitioner and Tom Creighton for nomination by the Democratic Party of Texas for the position of State Senator, 22nd Senatorial District. V.A.T.S. Election Code, art. 9.38a, “Recount of paper ballots”. Mr. Tandy’s application for a recount, filed with Mr. Guest, had been denied.

Ancillary to and conditioned upon the petition for mandamus, Tandy sought writs of temporary injunction restraining each of the County Clerks in the counties comprising the 22nd Senatorial District from destroying the ballots in their custody pending completion of the procedure of recount.

Upon hearing held July 12,1976, with the court’s ruling and decision announced in open court that day, the petition for mandamus was denied; the petition for writs of temporary injunction were also denied.

Our denial of the petition for mandamus was predicated upon the want or failure of any official notice to Mr. Creighton of the Tandy application for a recount. Except as applied to the matter of want or failure of notice to Mr. Creighton there is no dispute in the evidence and the facts and circumstances stand as proved; as applied to the matter of notice to Mr. Creighton, if the necessity has arisen by reason of the nature of the proof, we find as the matter of fact that there was not the official notice necessary for entitlement to relief.

A statute directing the manner of serving notice affecting property rights must be strictly complied with. Realty Trust Co. v. Lindsey, 129 Tex. 516, 105 S.W.2d 210 (1937); 41 Tex.Jur.2d, p. 526, “Notice”, Sec. 8, “Statutory notice”. On and prior to Mr. Tandy’s application for recount, as the result of the report of the canvassing board (the province of Mr. Guest) that the race between him and Mr. Creighton had been won by the latter, Mr. Creighton stood vested with a property right, to wit: the right to be placed on the ballot at the general election of November, 1976, as the candidate of the Democratic Party of Texas for State Senator, District 22.

We do not predicate the denial of the petition for mandamus on the failure of Mr. Tandy to include as part of his application for a recount the name and address of the presiding judge of each election precinct (Precinct Chairman in the present instance). The application for recount was for all the ballots cast, not any certain portion thereof, and was obviously related merely to the possibility of clerical error because there was less than a five per cent (5%) differential in the number of votes received by the two opposing candidates. Under these circumstances a statutory provision requiring these names and addresses would be vain as devoid of any real value or importance. Even were it not vain, nevertheless a requirement that an applicant for total recount in the seventeen counties comprising the 22nd Senatorial District of Texas file such a list in the limited time applicable to this case would, by reason of the circumstances, constitute an arbitrary and unreasonable provision with respect to time; indeed a nearly impossible thing for Mr. Tandy to accomplish. United States v. Kirby, 7 Wall. 482, 19 L.Ed. 278; Lau Ow Bew v. United States, 144 U.S. 47, 23 S.Ct. 517, 36 L.Ed. 340 (1892); Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165 S.W.2d 446 (1942), in answer to certified question, conformed to at 166 S.W.2d 191; Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943 (1956).

Under Art. 9.38a, by Subdivision 7, “Procedure for ordering recount”, the duty is imposed upon one in the position of Mr. Guest to conduct a recount “Where a candidate has complied with all conditions for obtaining a recount . . . .” Also therein are provisions relative to notice to “each opposing candidate.”

It is obvious that one in the position of Mr. Guest would not necessarily know whether the applicant for a recount had satisfied the provisions found elsewhere under the article relative to the applicant’s service of notice upon an opposing candidate. He would be entitled so to assume, but not compelled to treat the application as one of which the opposing candidate had been officially notified. Should he so desire he would be free to make the investigation necessary to ascertain the matter of compliance. In a case such as this we would be obliged, in the event it should otherwise appear that the duty was incumbent upon Mr. Guest to order the recount of ballots, to consider that he had made the investigation and had refused to order the recount because of want or failure of service upon Mr. Creighton — if that be exhibited-as the fact.

Under Art. 9.38a, by Subdivision 2, “Procedure for requesting recount; general provisions”, is subsection (b), which reads as follows: “In addition to other requirements stated in this section, each application must show the name and address of each opposing candidate, and the name and address of the presiding judge of each election precinct for which a recount is requested. On the same day that a candidate delivers or mails his application to the presiding officer of the canvassing board, he must deliver in person or mail by certified or registered mail, with return receipt requested, a copy of the application and any supporting papers to each opposing candidate at the election.”

Mr. Tandy’s application for recount, of all the ballots cast, which had been filed on May 13, 1976, with Calvin Guest was denied. Reasons for denying the request were “There was apparently no attempt to fulfill the requirements of Section (b) of Subdivision 2.”

Thereafter ensued a six weeks’ delay before Mr. Tandy came into this Court with his original proceeding seeking a writ of mandamus to compel Mr. Guest to conduct a recount. The public interest being involved, we have disregarded this delay.

Since Mr. Creighton possessed a property right subject to prejudice by Mr. Tandy's application for recount, the paramount concern of the court is the question of sufficiency of notice.

It is undisputed that the Tandy application of May 13,1976, did not show the name and address of his opponent. Standing alone this might have been sufficient to justify Mr. Guest’s refusal to order recount, but we are not compelled to determine our action by this insufficiency, there having been want of that statutory notice to Mr. Creighton provided by Subdivision 2(b).

Mr. Tandy’s application for recount was both sworn to and delivered by him to Mr. Guest on May 13, 1976. In- the proof by way of affidavits before the court upon the July 12, 1976, hearing Mr. Creighton swore that he did not receive a copy of the Tandy May 13, 1976, application either by hand delivery or by mail. This was not controverted.

Mr. Tandy presented to the court a xerox copy of a receipt for certified mail by the Dallas office of the United States Postal Service dated May 11, 1976. It is indicated thereby (though there was objection that it was not evidence of anything, let alone the “best evidence”) that something had been posted in that office at that time for mailing to “Tom Creighton, Mineral Wells, Texas”. Nothing by way of proof related to the contents of whatever it was that was mailed on May 11th. Only by hearsay evidence, inadequate for the purpose, was it shown that the mailing was by one of the supporters of Mr. Tandy in his race for the nomination for State Senator. The inference was that the certified mail contained a copy of the application filed by Mr. Tandy on May 13th. Of course it could not have been such a copy for the application dated and filed on May 13th did not exist as such, even undelivered, until Mr. Tandy signed and swore to it before a notary on that date. Whatever it is that was mailed on May 11th it could not be a copy of the application of Mr. Tandy which was filed with Mr. Guest on May 13. Furthermore there was no proof, even as applied to whatever was mailed on May 11th, that there was any request for the “return receipt” provided by Subdivision 2(b) of Art. 9.38a of the Election Code.

There was no evidence of compliance by Mr. Tandy relative to notice to Mr. Creighton of his application of May 13th. If the issue were raised we find as a matter of fact that there was not delivery of notice. For want of compliance with the law relative to notice Mr. Tandy never became entitled to demand performance of any duty by Mr. Guest.

The petition for writ of mandamus was for the above reasons denied on July 12, 1976.


author: McKAY, Justice.

text:
    Flynn R. TILL, Appellant, v. Barbara TILL, Appellee.
    No. 950.
    Court of Civil Appeals of Texas, Tyler.
    July 15, 1976.

      Paul M. Branch, Kilgore, for appellant.
    Roland Matthews, Troup, for appellee.
   McKAY, Justice.

Appellee, Barbara Till, filed suit for divorce from appellant, Flynn R. Till, alleging that the parties had been informally married in January, 1974, and asking that she be appointed managing conservator for their minor child and that appellant be required to pay $100.00 per month child support. Trial was had before the court without a jury, and the trial court rendered judgment granting appellee a divorce, appointing appellee managing conservator of the minor girl, Glenna Rene Till, and appointing appellant possessory conservator of the child with rights of reasonable visitation. The court also ordered appellant to pay $75.00 per month for the support of the child until she reached 18 years of age.

Appellant brings this appeal on two points contending that the judgment is not supported by any evidence of probative force that a common law marriage was created by the parties, and that the judgment is not supported by sufficient evidence of probative force and is against the great weight and preponderance of the evidence that a common law marriage was created by the parties.

We affirm the judgment of the trial court.

In passing upon the no evidence point we may consider only the evidence and inferences therefrom which tend to support the trier of the facts and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). When there is a contention that the evidence is insufficient to support a fact finding or that the finding is against the great weight and preponderance of the evidence, a court of civil appeals must examine all the evidence and reverse and remand for a new trial if it concludes that the evidence is factually insufficient to support the finding of a vital fact or that the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.R. 361, 366 (1960).

The record reflects that it is undisputed that appellant and appellee lived together for several months; that appellee became pregnant while they were living together; that they bought a wedding ring for each of them and an engagement ring for appellee, and they wore the rings; that they opened a joint checking account as Mr. and Mrs. Flynn R. Till at the bank in Kilgore and both used it; that they told her family they were going to be married; that appellant listed appellee as his wife on his employers insurance coverage for employees; that they were introduced to others on many occasions as husband and wife; and that appellant paid the medical and hospital bills during appellee’s pregnancy and for the birth of Glenna Rene Till.

There was some dispute as to the facts on some other points. Appellee testified they agreed they were married whether there was any license or ceremony, while appellant testified they agreed they would marry if “things worked out,” but they did not work out. Appellee testified that she was represented as appellant’s wife to his children by a previous marriage, to his mother, father and stepmother.

Norma McKay, a witness for appellee, testified she was introduced to appellant by appellee as appellee’s husband, went on fishing trips with them, and believed them to be husband and wife.

The three essential elements of a common law marriage are: (1) an agreement presently to be husband and wife; (2) living together as husband and wife; and (3) holding each other out to the public as husband and wife. Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.1963); Gary v. Gary, 490 S.W.2d 929, 932 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.). And it is not essential that an express agreement to be husband and wife be shown by direct evidence. The agreement may be inferred or implied where the proof establishes the second and third elements of the marriage. Humphreys v. Humphreys, supra; Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955); Gary v. Gary, supra; Talbert v. Talbert; 1 Texas Court Reports 77 (Tex.Civ.App.—San Antonio 1976).

Our Legislature has enacted these elements into the Texas Family Code, Section 1.91:

“Proof of Certain Informal Marriages
“(a) In any judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:
* * * * * *
“(2) they agreed to be married, and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.
“(b) In any proceeding in which a marriage is to be proved under Subsection (a)(2) of this section, the agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married.”

Appellant attempted to prove that appel-lee had entered into a previous common law marriage from which she was not divorced, and as a result there was an impediment to her marriage with Till. The essential proof was not made. Appellant also argues that the law does not favor, but merely tolerates, common law marriage.

We are of the opinion that the evidence is sufficient to support the judgment of the trial court. There are no findings of fact nor conclusions of law in the record, and none were requested; and in such a case tried before the court, it will be presumed by the appellate court that every disputed fact issue was found by the trial court in support of the judgment rendered. Quinn v. Dupree, 157 Tex. 441, 303 S.W.2d 769, 773 (Tex.1957); Washington v. Law, 519 S.W.2d 953, 954 (Tex.Civ.App.—Houston (14th Dist.) 1975, writ ref’d n. r. e.); Morris v. Burney, 504 S.W.2d 800 (Tex.Civ.App.—Fort Worth 1974, no writ).

Appellant’s points are overruled.

Judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    T. L. BULLARD, Appellant, v. CARROLL EQUIPMENT COMPANY, Appellee.
    No. 5597.
    Court of Civil Appeals of Texas, Waco.
    July 15, 1976.

      Dillon, Giesenschlag & Sharp, John M. Delaney, Bryan, for appellant.
    Elmer MeVey, M. Charles Gandy, Don B. Mauro, Bryan, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Bullard from judgment for plaintiff Carroll for $2770. plus $900. attorney’s fees.

Plaintiff sued defendant alleging defendant indebted to plaintiff for work, labor and services in the performance of bulldozer work and hauling gravel, and sought judgment for $3090. plus attorney’s fees.

Defendant answered by general denial.

Trial before the court resulted in judgment for plaintiff for $2770. plus $900. attorney’s fees.

The trial court filed Findings of Fact and Conclusions of Law summarized as follows:

FINDINGS OF FACT
1) Defendant and plaintiff made an agreement for plaintiff to clear land for defendant.
2) The agreement was that plaintiff would furnish a bulldozer and operator to clear such land for $20. per hour. The parties did not agree for a lump sum amount of $750.
3) For plaintiff to perform the agreement 86 hours of bulldozer time was required.
4) Plaintiff performed in good and workmanlike manner.
5) $1720. ($20. X 86 hrs.) was reasonable compensation for plaintiff’s equipment and labor in performing such work.
6) Defendant further employed plaintiff to deliver and spread gravel, but there was no specific rate per load agreed on by the parties.
7) Plaintiff spread 70 loads of gravel for defendant in good and workmanlike manner.
8) $15. per load was a reasonable charge for same.
9) $1050. ($15. X 70) was a reasonable charge for delivering and spreading such gravel.
10) Plaintiff billed defendant and 30 days expired without payment.
11) Defendant has not paid until now.
12) $900. is a reasonable attorneys’ fee.
CONCLUSIONS OF LAW
1) Plaintiff is entitled to judgment for $2770.
2) Plaintiff is entitled to $900. as reasonable attorneys’ fees as provided by Article 2226 VATS.
Defendant appeals on 8 points contending:
1) The trial court erred in awarding attorneys’ fees because plaintiff’s contract was for “a general service” as opposed to “personal services” or “labor”, and was thus not authorized by Article 2226.
2) The trial court erred in not granting a new trial on the ground of newly discovered evidence.
3) The trial court’s finding that $1050. was a reasonable charge for delivering and spreading the gravel is supported by no evidence and/or insufficient evidence.
4) The trial court’s finding that the parties agreed plaintiff would be paid $20. per hour for land clearing work is contrary to the great weight and preponderance of the evidence.
5) The trial court’s finding that the parties did not agree to a lump sum contract price of $750. is contrary to the great weight and preponderance of the evidence.
6) The trial court’s finding that 86 hours of bulldozer time was required for the clearing work is contrary to the great weight and preponderance of the evidence.
7) There is no evidence to support the trial court’s finding that $1720. was reasonable compensation for plaintiff’s equipment and labor in performance of the land clearing.

Contention 1 asserts the trial court erred in awarding plaintiff attorney’s fees.

Article 2226 VATS provides: “Any person, corporation * * * or other legal entity having a valid claim against a person * * * for services rendered, labor done, * * * may present the same * * *; and if, at the expiration of 30 days thereafter, the claim has not been paid * * * and he should finally obtain judgment for any amount * * *, he may, if represented by an attorney, also recover, * * * a reasonable amount as attorney’s fees. * * *”.

Thus the statute provides for attorney’s fees for claims for 1) services rendered, and for 2) labor done. The undisputed evidence is that plaintiff cleared defendant’s land with a bulldozer, and loaded, delivered and spread gravel on defendant’s land. We think plaintiff performed services and labor for defendant within the meaning of Article 2226. Mathews Const. Co., v. Jasper Housing Const. Co., CCA (Beaumont) NRE, 528 S.W.2d 323; See also: Texcalco, Inc., v. McMillan, CCA (Eastland) NWH, 524 S.W.2d 405.

Contention 2 asserts the trial court erred in not granting a new trial on the ground of newly discovered evidence.

At the trial plaintiff testified the agreement was that he would clear defendant’s land with a bulldozer for $20 per hour; that it took 86 hours; and that defendant owed $1720. for the clearing of the land. Defendant testified that the parties agreed on a lump sum amount of $750. After the trial defendant filed motion for new trial on the ground of newly discovered evidence, and attached the affidavit of a Mr. Budnik that plaintiff told him that he “had agreed to do defendant’s job for $750. and was losing money on the job”. At the hearing on defendant’s motion for new trial Mr. Budnik refused to testify to the facts stated in his affidavit. Defendant thus introduced no evidence on motion for new trial that he had newly discovered evidence.

It was necessary for defendant to introduce admissible competent evidence on the hearing of the motion for new trial showing the existence of the newly discovered evidence relied on. Jacobi v. Texas State Board of Medical Examiners, CCA (Waco) NRE, 308 S.W.2d 261; Anderson v. Griffith, CCA (Ft. Worth) NRE, 501 S.W.2d 695. The trial court did not abuse his discretion in overruling motion for new trial on the ground of newly discovered evidence, since none was proved.

Contention 3 asserts the trial court’s finding $1050. was a reasonable charge for delivering and spreading the gravel has no support or insufficient support in the evidence.

Plaintiff loaded, delivered and spread 70 loads of 6 cubic yards each of gravel on defendant’s property, and charged $15. per load. Plaintiff testified the customary price for this type work was $3.50 per yard, but that since the distance here was a short haul he only charged $2.50 per cubic yard. We think the evidence ample to support the finding.

Contentions 4 and 5 assert the trial court’s findings the parties agreed plaintiff be paid $20. per hour for land clearing, and not the lump sum of $750. are against the great weight and preponderance of the evidence.

Plaintiff testified to the $20. per hour agreement, and defendant’s wife testified that the agreement was for a lump sum of $750. to do the land clearing work.

The trial judge must pass upon the credibility of the witnesses, and has believed plaintiff. The evidence is ample to sustain the trial court’s findings.

Contentions 6 and 7 assert the trial court’s findings that 86 hours of dozer work was required for the clearing work is against the great weight and preponderance of the evidence; and that $1720. was reasonable compensation for plaintiff’s equipment and labor in performing the land clearing is supported by no evidence.

Plaintiff testified the dozer operated 86 hours in clearing the land. The plaintiff’s version of $20. per hour was believed by the trial court; and $20. X 86 hours totals $1720. The evidence is ample to sustain the findings.

All defendant’s points and contentions are overruled.

AFFIRMED.