author: McCLOUD, Chief Justice.

text:
    Glenn Edward CARRUTH, Appellant, v. The FIRST NATIONAL BANK OF FORT WORTH et al., Appellees.
    No. 4893.
    Court of Civil Appeals of Texas, Eastland.
    Original Opinion Nov. 24, 1976.
    Supplemental Opinion Dec. 9, 1976.
    Rehearing Denied Dec. 16, 1976.

      Charles B. McGregor, Beard & Kultgen, Waco, for appellant.
    Jack C. Wessler, Jerry L. Hughes, Fort Worth, Lee M. Simpson, Dallas, for appel-lees.
   McCLOUD, Chief Justice.

This is a civil conspiracy case involving a wrongful foreclosure. The controversy concerns three tracts of land that will be designated as front, middle, and back tracts. Plaintiff, Glenn Edward Carruth, sued defendant, The First National Bank of Fort Worth, alleging the bank participated in a conspiracy to deprive plaintiff of the front and back tracts. Plaintiff joined defendants, Tarleton Arms Apartments, Ltd., and Federal National Mortgage Association, seeking foreclosure of an implied vendor’s lien on the middle tract. The jury found in Special Issue 1 there was a conspiracy between the bank and B. B. Adams, Jr., to deprive plaintiff of the two tracts, and in Special Issue 2, the market value of the two tracts at the time of foreclosure was $210,-000. The trial court granted bank’s motion to disregard the conspiracy finding in Special Issue 1, and entered judgment notwithstanding the verdict, that Carruth take nothing against the bank. Federal National Mortgage Association was granted an instructed verdict. Default judgment was entered against Tarleton Arms Apartments, Ltd., awarding plaintiff an implied vendor’s lien on the middle tract. The trial court held, however, the vendor’s lien was inferi- or and subsequent to the lien of Federal National Mortgage Association. Plaintiff, Glenn Edward Carruth, appeals. We reverse and render in part and affirm in part.

The jury’s answer to Special Issue 1 may not be disregarded if there is any probative evidence which, with proper inferences, will reasonably support the finding. Rule 301, T.R.C.P.; Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Morsch v. Metzger, 520 S.W.2d 564 (Tex.Civ.App. — Corpus Christi 1975, writ ref. n. r. e.).

In determining if there is any evidence to support the jury’s finding, we must review the evidence in its most favorable light, considering only the evidence and inferences supporting the finding and rejecting the evidence and inferences contrary to the finding. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

Plaintiff wanted to build an apartment project in Stephenville, Texas. He acquired an option to buy 17.475 acres of land, which was later divided into three tracts. The front tract contained 6.651 acres, the middle tract 6.659 acres, and the back tract 4.165 acres. Carruth planned to build the apartment project on the middle tract. He employed M. O. Killion to help him “package” the deal. Killion knew how to get the necessary “financing and contractors”. Kil-lion took plaintiff to B. B. Adams, Jr., in Fort Worth who would built the apartments. Adams was to get the financing for plaintiff through FHA in Fort Worth. The original plan was that Carruth would own the apartments, and Adams would profit as builder. Adams went with Carruth to The First National Bank of Forth Worth. The bank on February 24, 1971, loaned Carruth $70,000 to purchase the land. On that same date, the 17.475 acres were conveyed to plaintiff and an expressed vendor’s lien was retained in the deed in favor of the bank. Also, on such date, Carruth executed a deed of trust in favor of the bank to secure the $70,000 note. Adams signed a guaranty agreement with the bank, dated February 25,1971, guaranteeing Carruth’s $70,000 obligation. The apartment project did not involve either the frpnt or back tracts. Carruth planned to develop the front tract for commercial purposes, and build townhouses on the back tract.

Carruth gave Adams $5,000 which he understood was to be used to get the commitment from FHA. He learned a problem existed with the commitment and he would not be able to close the transaction in his name with FHA. He attempted to sell, but was unsuccessful. Carruth then executed a deed dated June 9,1971, conveying the middle tract to B. B. Adams, General Contractor, Inc. He testified he did this because he was under the impression the commitment was running out and he would lose the financing. B. B. Adams, Jr., was the president of B. B. Adams, General Contractor, Inc. The consideration stated in the deed was the assumption by grantee of Carruth’s $70,000 obligation to the bank. The deed referred to the deed of trust in favor of the bank securing the $70,000 note. Carruth testified that also as part of the consideration for the conveyance, B. B. Adams, Jr., agreed to pay a $20,000 fee owed by Car-ruth to M. O. Killion.

By deed dated June 9, 1971, B. B. Adams, General Contractor, Inc., conveyed the middle tract to Tarleton Arms Apartments, Ltd. The deed recited a cash consideration. B. B. Adams, Jr., signed the deed as president of the corporation. B. B. Adams, Jr., paid the bank $30,000 which was credited on the $70,000 note. The bank executed a partial release dated June 9,1971, releasing its lien on the middle tract. Tarleton Arms executed its deed of trust note dated June 9, 1971, in the amount of $1,530,800 payable to the bank. The note was secured by a deed of trust lien in favor of the bank dated June 9, 1971, on the middle tract. The purpose of the loan represented by this note was to provide interim financing for the construction of apartments on the middle tract. On December 6, 1972, the bank assigned for a valuable consideration the $1,530,800 note and deed of trust lien to Federal National Mortgage Association. On November 24, 1971, prior to the above mentioned assignment, Carruth and the bank executed an extension agreement extending the due date of the $40,000 balance owed the bank on the original $70,000 note. The note was not paid by B. B. Adams, General Contractor, Inc., and Carruth testified he could not pay the note. The note became delinquent and the bank on June 5, 1973, foreclosed on the back and front tracts. The bank bid the property in for $46,388.89, the amount of the unpaid balance owed on Carruth’s note. The bank then sold the two tracts to B. B. Adams, Jr., the bank’s guarantor for both Carruth and B. B. Adams, General Contractor, Inc., by deed dated September 4, 1973. The consideration was Adams’ $46,500 promissory note to the bank.

If B. B. Adams, General Contractor, Inc., had paid the $70,000 note it assumed, plaintiff, Carruth, would have owned the front and back tracts free and clear. Carruth contends that by delaying payment of the note until after foreclosure, B. B. Adams, Jr., deprived Carruth of the front and back tracts and got the two tracts for himself at a cost exactly equal to what he was previously obligated to pay for the middle tract alone.

An actionable civil conspiracy has been defined as a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Great National Life Insurance Co. v. Chapa, 377 S.W.2d 632 (Tex.1964).

We must determine if there is any evidence of a conspiracy between the bank and B. B. Adams, Jr., to deprive Carruth of the two tracts of land.

B. B. Adams, Jr., was the president of B. B. Adams, General Contractor, Inc., Car-ruth’s assumptor and grantee. The bank had the personal guarantee of B. B. Adams, Jr., to cover all loans made to B. B. Adams, General Contractor, Inc., and other Adams “companies”. A bank officer testified Adams was a long time customer. Adams and his companies had 15 different accounts with the bank. These were listed as “related” on the credit data sheet prepared by the bank in connection with the loan to Car-ruth. The average balance in these related checking accounts was shown to be $78,000. At the time of the loan, Adams and related companies were listed as having $161,000 cash. B. B. Adams, General Contractor, Inc., was shown as owning stocks and bonds of $100,000. The bank received a $30,000 servicing fee in connection with the interim financing of the apartment project on the middle tract. It had had a number of similar transactions with Adams in the past. The $70,000 note executed by Carruth was his only transaction with the bank.

Jones, a bank officer, testified that he had an understanding with Adams that he would foreclose; that he was not sure how the understanding evolved — whether it was a result of a request from Adams; that the decision was a “common decision” with Adams; that he had an understanding with Adams that Adams’ lawyer, Courtade, would be appointed substitute trustee; that he discussed the amount to be bid at the foreclosure sale with Adams in advance of the sale; that he discussed how the credit was to be applied on the note; and, that he assumed “we discussed all of the particulars of it”. He further testified that prior to the foreclosure sale, the bank had an understanding with Adams that he would buy the property from the bank after the foreclosure and the bank would lend him the money to buy and take his note for the purchase price.

Adams’ attorney, Courtade, who conducted the sale testified that the assumption was discussed numerous times with the bank. He stated that Adams’ position about the note was that if he paid it, he wanted the property. Adams knew that if the Carruth note was properly credited at the time the bank bid in the balance owed it on the note, there would have been no remaining balance and Adams would be no longer liable as a guarantor. Courtade testified that during all of the negotiations which led up to the foreclosure, Adams knew he was going to wind up buying the property from the bank. He stated that the assumption was a “key issue” and it was discussed with the bank’s officer, Reid.

Courtade, as substitute trustee, executed his deed to the bank, conveying the front and back tracts, on June 5,1973. The bank conveyed the property to B. B. Adams, Jr., on September 4, 1973. The bank’s records do not show the Carruth note paid until after the sale to Adams.

Concerning the type of evidence which will support a finding of conspiracy, the court in International Bankers Life Insurance Company v. Holloway, 368 S.W.2d 567 (Tex.1963) said:

“It was early said by this Court in Jernigan v. Wainer, 12 Tex. 189:
‘When men enter into conspiracies, they are not likely to call in a witness * * * In such cases the injured party must necessarily have recourse to circumstantial evidence. For it is only by the inferences and deductions which men properly and naturally draw from the acts of others in such cases, that their intentions can be ascertained. They are not likely to proclaim them in the hearing of witnesses.’
And in Whitmore v. Allen, 33 Tex. 355, that
‘A conspiracy may be proven as well by the acts of the conspirators, as by anything they may say, touching what they intended to do.’
The general rule is that conspiracy liability is sufficiently established by proof showing concert of action or other facts and circumstances from which the natural inference arises that the unlawful, overt acts were committed in furtherance of common design, intention or purpose of the alleged conspirators . . .”

A limitation on the effective use of circumstantial evidence to establish a conspiracy was observed in Echols v. Austron, Inc., 529 S.W.2d 840 (Tex.Civ.App. — Austin 1975, writ ref. n. r. e.), wherein the court said:

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

Where the purpose to be accomplished is lawful and no unlawful means are used, there can be no civil conspiracy. Texas State Board of Examiners in Optometry v. Carp, 388 S.W.2d 409 (Tex.1965); Kingsbery v. Phillips Petroleum Company, 315 S.W.2d 561 (Tex.Civ.App. — Austin 1958, writ ref. n. r. e.); Davis v. Alwac International, Inc., 369 S.W.2d 797 (Tex.Civ.App.— Beaumont 1963, writ ref. n. r. e.); Bartlet v. Lehmann, 207 S.W.2d 131 (Tex.Civ.App.— Austin 1947, writ ref’d); Meurer v. Hooper, 271 S.W. 172 (Tex.Civ.App. — Fort Worth 1925, writ ref’d); DesLauries v. Shea, 300 Mass. 30, 13 N.E.2d 932 (Mass.Sup.1938); Ashley v. Lance, 80 Wash.2d 274, 493 P.2d 1242; 15A C.J.S. Conspiracy § 3.

The First National Bank of Fort Worth argues, regardless of the motives of B. B. Adams, Jr., or B. B. Adams, General Contractor, Inc., it had a legal right to foreclose and sell the property to its guarantor, and, therefore, has committed no unlawful act. We disagree.

The jury found in Special Issue 3 that the market value of the middle tract was $100,-000 at the time that the bank executed the release of the tract. The jury found that the value of the land released by the mortgagee bank exceeded the amount owed the bank by the mortgagor, Carruth. We think the proper rule was recognized in Santoro v. Kleinberger, 115 Conn. 631, 163 A. 107 (1932) wherein the court said:

“. . .As between a mortgagor and one to whom he transfers the equity of redemption and who assumes and agrees to pay the mortgage, by the assumption agreement the latter becomes the principal and the former the surety with a right of recourse against his principal if he is compelled to pay the debt. Trotta v. Prete, supra, page 445 of 112 Conn. [442], 152 A. 585. The mortgagor has the right to have the mortgaged property applied to the payment of the mortgage debt so far as necessary for his protection against his personal liability for the debt secured. If, therefore, the mortgagee releases the mortgage or a portion of the mortgaged premises to a purchaser who has assumed the mortgage, the mortgagor is relieved of liability to the extent of the value of the security of which he has thus been deprived. Townsend Sav. Bank v. Munson, 47 Conn. 390; Goodwin v. Jackson, 97 Conn. 358, 116 A. 617; First Nat. Bank & Trust Co. v. Strong, 112 Conn. 412, 152 A. 575; 2 Jones on Mortgages (8th Ed.) § 839 . . .”

The rule was approved in Greater Adelphia Building & Loan Ass’n v. Trilling, 323 Pa. 361, 185 A. 716 (1936) as follows:

“. . .As respects the collateral securing the mortgage debt, the mortgagor and his grantee occupy, respectively, the positions of surety and principal. The mortgagor is entitled at all times to have the security applied on the debt. As respects the real security, the land, the mortgagee may not release it or any portion of it from the lien of the mortgage, or otherwise deal with it as between itself and the mortgagor’s grantee so as to destroy or impair its value as security for the debt, thus tending to enlarge the mortgagor’s personal liability on his bond or original undertaking. Meigs v. Tunnicliffe, 214 Pa. 495, 63 A. 1019, 112 Am.St.Rep. 769, 6 Ann.Cas. 549; Hunter’s Assigned Estate, 257 Pa. 32, 101 A. 79. The reason for this, as Judge Keller stated in Zusin v. Wharton Business Men’s B. & L. Ass’n, 107 Pa.Super. 181, 188, 163 A. 377, 380, is that the mortgagor, or one in succession to his rights (as are defendants in the case at bar), ‘would have the right to pay the original debt or obligation to the [mortgagee] and require the assignment to her or him, respectively, of the securities held by the [mortgagee] for its payment.’ . . . ”

See also: Burson v. Blackley, 67 Tex. 5, 2 S.W. 668 (1886) and 112 A.L.R., page 1343.

In Dansby v. Stroud, 48 S.W.2d 1018 (Tex.Civ.App. — Waco 1932, writ ref.), the court said:

“. . . where a party who is liable for the payment of a vendor’s lien note conveys the land to a subsequent vendee who assumes the payment of the notes, as between him and his vendee, his vendee becomes primarily liable, and he becomes a surety, but as between them and the holder of the notes they are both primarily obligors. Middleton v. Nibling (Tex.Civ.App.) 142 S.W. 968, par. 3. If the holder of the notes accepts the promise of the subsequent purchaser to pay the notes, such subsequent purchaser becomes primarily liable and his vendor becomes surety . . . ”

We hold the mortgagee bank could not lawfully release the middle tract from the lien without the knowledge or consent of Carruth.

The trial court found in its judgment notwithstanding the verdict that by executing the extension agreement dated November 24, 1971, Carruth waived as a matter of law any right to complain of the release by the bank of the middle tract from the lien. The court concluded that the evidence conclusively established that at the time Car-ruth executed the extension agreement he had knowledge of the partial release. We disagree.

Carruth in his deposition and on cross-examination gave answers to the effect that he knew about the release of the middle tract in June of 1971. But in other parts of his testimony, he states he did not know about the release until 1973; that he did not know about it on June 9, 1971; that he did not know about it in November, 1972, when he signed the extension agreement; that he is no lawyer and when he talks about “releases” to him it might mean two or three things; that in testifying about a release in his deposition, he was talking about his knowledge the bank “had given them an okay to go ahead and start with the construction of the apartments”.

Before the testimonial declaration of a party will be given conclusive effect, it must appear among other things that the statement is deliberate, clear, and unequivocal. Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956). If the statement merely contradicts some other portion of the party’s testimony, conclusive effect cannot be given thereto, but a fact issue is presented for the determination of the jury as in the case of an ordinary witness. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App. — San Antonio 1951, writ ref.).

The extension agreement signed by the bank and Carruth states that the deed of trust securing the $70,000 note covers “three tracts of land”; that the payment date of the note is extended; and that in every other respect the terms of the note and “Deed of Trust” shall remain in force unchanged.

Carruth’s testimony regarding his knowledge of the release of the middle tract at the time he signed the extension agreement is contradictory. The court erred in holding as a matter of law Carruth waived any rights to complain. The bank failed to request issues on waiver, consent, or knowledge. Such independent grounds of defense were waived. Rule 279, T.R.C.P.; Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529 (Tex.1965).

The release by the bank of the middle tract was not shown to be authorized. The value of the tract when released was established by the jury as greater than the obligation owed by Carruth to the bank. The bank’s unauthorized act released the front and back tracts from the bank’s lien. The bank’s subsequent foreclosure, therefore, on the front and back tracts was unlawful. The bank’s argument that it had a legal right to do what it did fails.

We think the jury could reasonably infer from the evidence that B. B. Adams, General Contractor, Inc., refused to pay the note it had assumed, because B. B. Adams, Jr., wanted the front and back tracts for himself, and the bank proceeded to help him accomplish this purpose. The jury could infer that the bank agreed to foreclose, which we have held it had no legal right to do, and sell to Adams, thereby eliminating Carruth, despite the assumption of Car-ruth’s note by B. B. Adams, General Contractor, Inc., in order to accommodate a valued customer from whose business it had made large profits. We hold, therefore, the court erred in disregarding Special Issue 1, because there was some probative evidence to support the jury’s answer that a conspiracy existed between B. B. Adams, Jr., and the bank to deprive plaintiff of the two tracts of land.

We also hold that under the facts of this case the legal fiction of the corporate entity, B. B. Adams, General Contractor, Inc., will be disregarded since it should not be relied upon to justify a wrong. First Nat. Bank in Canyon v. Gamble, 134 Tex. 112, 132 S.W.2d 100 (1939); McDonald & Company v. Kemper, 386 S.W.2d 215 (Tex.Civ.App. — Fort Worth 1965, no writ); Sapphire Homes, Inc. v. Gilbert, 426 S.W.2d 278 (Tex.Civ.App. — Dallas 1968, writ ref. n. r. e.).

We next consider Carruth’s contention the trial court erred in granting defendant, Federal National Mortgage Association, an instructed verdict. Plaintiff concedes in his brief that if the release of the middle tract released the other two tracts, then the court did not err in granting the instructed verdict. We have held that the front and back tracts were released from the lien because of the bank’s release of the middle tract.

The jury found that the market value of the front and back tracts at the time of the foreclosure was $210,000. Plaintiff alleged actual damages of $200,000. The take nothing judgment rendered by the trial court in favor of the bank is reversed and judgment is rendered in favor of plaintiff, Glenn Edward Carruth, against the defendant, The First National Bank of Fort Worth, for $200,000. In all other respects, the judgment of the trial court is affirmed.

Reversed and rendered in part and affirmed in part.

SUPPLEMENTAL OPINION

We note that we failed to specifically state in our main opinion that interest on the $200,000 judgment rendered in favor of Glenn Edward Carruth against The First National Bank of Fort Worth shall accrue at the rate of 9% per annum from November 20, 1975, the date of entry of the erroneous portion of the trial court’s judgment.

We hereby amend our main opinion and judgment dated November 24, 1976, to expressly provide that interest on the $200,000 judgment in favor of Glenn Edward Car-ruth against The First National Bank of Fort Worth shall accrue at the rate of 9% per annum from November 20, 1975. American Paper Stock Company v. L. M. Howard, 528 S.W.2d 576 (Tex.1975); Art. 5069-1.05, Tex.Rev.Civ.Stat.Ann.


source: Caselaw Access Project

author: GUITTARD, Justice.

license: Public Domain

text:
    IRVING BANK & TRUST COMPANY et al., Appellants, v. SECOND LAND CORPORATION et al., Appellees.
    No. 19084.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 14, 1976.
    Rehearing Denied Nov. 11, 1976.

      James A. Cline, Tabor, Fowler & Cline, Irving, John C. Nabors, Liddell, Sapp, Ziv-ley & Brown, Houston, for appellants.
    John D. Crawford, Dallas, for appellees.
   GUITTARD, Justice.

This appeal is from a temporary injunction restraining a trustee’s sale of land. The principal ground alleged to support the injunction is that various notes secured by deeds of trust on the property in question are usurious and that when statutory penalties are applied to the indebtedness in question, no right of foreclosure exists. Without deciding any of several usury questions, we hold that the trial court had discretion to preserve the status quo by temporary injunction until trial on the merits.

The controversy arises out of a series of loans by appellant Irving Bank & Trust Company to Fowler Brothers Sand & Gravel, a partnership composed of B. K. Fowler, John G. Fowler, and Troy C. Fowler, and to Second Land Corporation, which the partners control. The partnership is engaged in mining and selling sand and gravel from the land in question, some of which is held in the name of the corporation. From time to time the defendant bank has advanced various amounts to the partnership and to the corporation and has taken notes secured by deeds of trust. In May, 1976, after interest on these notes had gone unpaid, the bank appointed a substitute trustee and instructed him to sell the property. The trustee posted notices for a sale on the first Tuesday in June. The partnership, the individual partners, and the corporation then filed this suit for injunctive relief and obtained a temporary restraining order. A hearing on an application for temporary injunction was begun on July 29, 1976, and on August 2, the court issued a temporary injunction restraining the bank and the trustee from proceeding with the sale until trial on the merits. The order permits appellants to supersede the injunction on filing a supersedeas bond in the amount of $5,000. Appellants filed the bond and perfected this appeal. On application of the appellees, we issued our temporary injunction restraining appellants from proceeding with the sale until the appeal is decided.

The appellant bank asserts in its first point that the trial judge abused his discretion in granting the temporary injunction because a proper application of the controlling law to the facts demonstrates that appellees have no probable right to restrain the sale on the ground of usury. Appellant discusses each of the loan transactions shown by the evidence in an effort to demonstrate that none is usurious under a proper interpretation of the usury statutes. Appellees’ brief, likewise, contains an extended discussion of the loan transactions and the usury statutes. We decline to decide any of the usury questions because we conclude that the trial judge had discretion to issue the temporary injunction without finally deciding any of these questions.

In order to invoke the trial court’s discretion to issue a temporary injunction, the plaintiffs are not required to prove that they will prevail at final trial. They need only offer evidence tending to prove a probable right to recovery and a probable injury if the injunction is not granted. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 556, 261 S.W.2d 549, 552 (1953). We review the evidence, therefore, only for the purpose of determining whether the record discloses probable right and probable injury to support the exercise of the trial judge’s discretion.

1. Probable Right

The first transaction in question is represented by a note in the amount of $162,842.67, including $125,000 principal and $37,842.67 interest, signed by Fowler Brothers and payable in monthly installments over a period of five years. The interest is figured at an add-on rate of six percent, which means that a full six percent per annum of the original principal amount for the full five years is added to the amount of the note at the beginning, although the principal, together with interest, is payable in monthly installments. On a simple interest basis, this would amount to more than ten percent per annum. Consequently, ap-pellees argue that the loan is usurious under the ten-percent maximum fixed by Tex. Const. art. XVI, § 11, and has not been shown to fall within any statutory exception authorized by the constitution.

The bank contends that the add-on interest is authorized by Tex.Rev.Civ.Stat.Ann. art. 5069 — 4.01 (Vernon 1971), which permits banks to contract for monthly installment loans with add-on interest of $8 per $100 per annum for the full term of the loan. The bank admits, however, that it violated article 5069 — 4.04(2) by taking a lien on part of the real estate as secondary collateral for this loan. Also, one of the partners testified that the bank failed to furnish the borrowers a copy of the documents they signed showing the nature of the security, as required by article 5069 — 4.03(l)(c).

The precise question determining the existence of usury in this loan is whether these violations of the statute invoke the penalty of twice the amount of the interest, plus attorney’s fee, provided in article 5069-8.01. Another question is whether the taking of the lien on the real estate disqualifies the loan from the add-on interest rate under article 5069 — 4.01. No judicial decisions construing the statute in these respects have been cited to us. We decline to construe it on this appeal, since we conclude that the trial judge had discretion to reserve these questions for final trial and to issue the temporary injunction preserving the status quo until then.

The other loan transactions present different questions, but we conclude that they, likewise, are substantial questions, both of law and fact, which the judge, in his discretion, could properly reserve until full development of the facts and law at a plenary trial. Decision of these questions on this interlocutory appeal would be premature. The ultimate legal rights of the parties should not be determined on an appeal from an interlocutory order that merely preserves the status quo pending trial on the merits. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421 (1959); Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 553 (1953). Consequently, we hold that ap-pellees made a sufficient showing of probable right to invoke the trial judge’s discretion to issue a temporary injunction.

2.Inadequacy of Legal Remedy

In their second point appellants assert that appellees failed to establish that they had no adequate remedy at law. They argue that appellees have an adequate remedy by a suit for usury penalties. We do not consider that remedy adequate in this case. The existence of a remedy at law is not ground for denial of injunctive relief unless the legal remedy is as practical and efficient to the ends of justice as the equitable remedy. Sumner v. Crawford, 91 Tex. 129, 41 S.W. 994, 995 (Tex.1897); Long v. Castaneda, 475 S.W.2d 578, 582 (Tex.Civ.App. — Corpus Christi 1971, writ ref’d n. r. e.). Although a usurious loan is not necessarily void except with respect to the interest, the borrower is not limited to recovery of penalties. He may elect to apply the penalties against the principal and thus reduce or extinguish the indebtedness. Cherry v. Berg, 508 S.W.2d 869, 874 (Tex.Civ.App. — Corpus Christi 1974, no writ). This remedy would clearly be more practical and efficient than a suit for usury penalties, since it might well save the land from foreclosure. When ownership of real estate is at stake, existence of a right of action for damages is not ground for denying equitable relief. Cf. E. I. DuPont de Nemours & Co. v. Zale Corp., 462 S.W.2d 355, 359 (Tex.Civ.App. — Dallas 1970, writ ref’d n.r.e.).

The only authority appellants cite to support denial of the injunction on this ground is Riverdrive Mall, Inc. v. Larwin Mortgage Investors, 515 S.W.2d 5 (Tex.Civ.App. — San Antonio 1974, writ ref’d n.r.e.). That decision holds merely that the trial judge had discretion under the facts of that case to deny a temporary injunction and leave the borrower to a suit for usury penalties. It does not support the bank’s contention that the granting of a temporary injunction to restrain a foreclosure sale is an abuse of discretion on a record such as that now before us. We hold that where a substantial claim of usury is involved the trial judge has discretion to preserve the status quo until the net amount of the indebtedness can be determined at a trial on the merits. Cf. Vaughan v. Crown Plumbing & Sewer Service, Inc., 523 S.W.2d 72, 76-77 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ ref’d n.r.e.); Lee v. Howard Broadcasting Corp., 305 S.W.2d 629, 635-36 (Tex.Civ.App. — Houston 1957, no writ).

3.Irreparable Injury

On similar reasoning, we find that the bank’s third point, also, is without merit. By that point it contends that appellees failed to establish irreparable injury because there was no competent evidence of the value of the collateral securing the indebtedness. We hold that appellees were not required to establish the value of the property in order to invoke the judge’s discretion to grant a temporary injunction. The evidence shows that the partnership was carrying on a sand and gravel mining business on the land in question. If the land is sold at a trustee’s sale, appellees will lose their equity, the business of the partners will be interrupted, and they will be required to secure another source of materials. These circumstances indicate that denial of the temporary injunction will probably cause a substantial loss that would not be adequately compensated either by usury penalties or by money damages.

4.Allowance of Supersedeas

We turn now to appellees’ crosspoint, which asserts that the trial court erred in allowing appellants to supersede the temporary injunction. In this connection the record shows that on August 2, 1976, the judge signed an order granting the temporary injunction, but provided that appellants might supersede the order by filing a supersedeas bond in the amount of $5,000. On the next day, appellees attempted to perfect a limited appeal from the order insofar as it permitted appellant to supersede. Thereafter the judge signed another order, dated August 3, 1976, again fixing the amount of the supersedeas bond at $5,000 and permitting appellants to suspend the injunction pending appeal by filing a supersedeas bond in that amount. Appel-lees contend that the trial court lost jurisdiction when their appeal was perfected and, therefore, had no authority to suspend the injunction.

We overrule appellants’ cross-point. The trial judge has express authority under Tex.R.Civ.P. 385(d) to permit su-persedeas of the temporary injunction. Cf. Caldwell v. Kingsbery, 451 S.W.2d 247, 252 (Tex.Civ.App. — Austin 1970, writ ref’d n.r. e.). The provision allowing supersedeas in the order granting the temporary injunction was interlocutory and not appealable, as was also the order of August 3, which again provided for suspension of the injunction pending appeal. Consequently, we have no authority to review either order. Of course, the suspension resulting from filing the supersedeas bond expires on conclusion of this appeal.

5. Temporary Injunction Pending Appeal

We do have authority, however, under Tex.Rev.Civ.Stat.Ann. art. 1823 (Vernon 1964) to issue our own temporary injunction pending appeal if such a writ is necessary to protect our jurisdiction. On appellees’ application we exercised that authority and issued a temporary injunction restraining the trustee’s sale because otherwise appellants would have been able to proceed with the trustee’s sale and render the temporary injunction moot. Cf. Pendleton Green Associates v. Anchor Savings Bank, 520 S.W.2d 579, 582 (Tex.Civ.App.— Corpus Christi 1975, no writ); Riverdrive Mall, Inc. v. Larwin Mortgage Investors, 515 S.W.2d 2, 4 (Tex.Civ.App. — San Antonio 1974, writ ref’d n.r.e.).

Appellants point out that our temporary injunction expires after our decision of this appeal and that if an application for writ of error is filed, only the supreme court will have authority to restrain the sale by further injunctive relief. In this respect, appellants are correct. Our temporary injunction will expire when we lose jurisdiction upon filing of an application for writ of error or otherwise.

6. No Necessity for Appeal

Finally, we will observe that this appeal, like many other temporary injunction appeals, appears to be entirely unnecessary. Presumably, the trial judge, after granting the temporary injunction, would have given the case a preferred setting for an early trial on the merits on request of either party so that the substantial questions involved in this litigation could be decided finally and expeditiously, as directed by the supreme court in Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 464 (1952). We see no reason why the case could not have been prosecuted to final judgment in less time than that required by this interlocutory appeal, which decides nothing except whether the status quo should be preserved pending trial on the merits. A hearing on an application for temporary injunction does not serve the same purpose as the hearing on the merits, nor should an appeal from a preliminary order be used to obtain an advance ruling on the merits. The most expeditious way of obviating the hardship of an unfavorable preliminary order is to try the case on the merits and thus secure a hearing in which both facts and law may be fully developed, and then both trial and appellate courts can render judgment finally disposing of the controversy. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 422 (1959).

The trial court’s order granting the temporary injunction is affirmed. The temporary injunction issued by this court will continue until an application for writ of error is filed, or the time expires for filing such an application without its being filed, or until the time for filing a motion for rehearing in this court expires without such a motion being filed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Rebecca T. MEJIA, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 1370.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 3, 1976.
    Rehearing Denied Dec. 1, 1976.
    Henry V. Sanchez, Sanchez, Salinas & Associates, Houston, for appellant.
    Roy Murphy, III, Mike Phillips, Mark T. Price, Boswell, O’Toole, Davis & Pickering, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is a workmen’s compensation case.

Rebecca T. Mejia (Mejia or appellant) filed suit against Liberty Mutual Insurance Company (appellee) to recover workmen’s compensation benefits for an injury she sustained while an employee of Nugrape Sun-crest Bottling Company. In response to the first of 10 submitted special issues, the jury failed to find that the plaintiff’s injury was received in the course of her employment. The other nine special issues were not answered. The trial court entered a judgment that plaintiff take nothing, and she has perfected this appeal.

Mejia testified that her primary duty at the Nugrape Suncrest Bottling Company was as a bottle inspector. She stated that on July 30, 1971, as she was bending down placing a crate or case on the floor, she was struck on the head by something. Although she did not lose consciousness, she suffered extreme pain' and her vision became blurred. By feeling the object she determined that it was a broom that had struck her. She does not know how the broom came to strike her. She was taken immediately to a doctor’s office for treatment. She never returned to her job with Nugrape and was out of work for about two years.

Construing appellant’s first point of error liberally, we interpret it to be an assertion that some of the explanatory instructions that accompanied Special Issue No. 1 were improper. Special Issue No. 1, inquiring whether appellant's injury was received in the course of her employment, was accompanied by a number of instructions and definitions, including the following:

If the employee voluntarily turns aside from the duties of her employment and willingly engages or participates in an act of horseplay or practical joking, an injury resulting from such act is not in the course of employment.
An injury is not in the course of employment if it is caused by the act of another person intended to injure the employee because of reasons personal to the employee and not directed against her as an employee or because of her employment. An injury caused by the employee’s willful intention to injure some other person is not in the course of employment, unless the injury results from a dispute arising out of the employee’s work or the manner of performing it and the employee’s acts growing out of such dispute are done in a reasonable attempt to prevent interference with the work or in reasonable self-defense.

In essence, appellant’s contention is that there was no evidence to support the giving of such instructions.

Prior to its amendment in 1973, Tex.R.Civ.P. 277 authorized explanatory instructions only when they were “necessary to enable the jury to properly pass upon and render a verdict on such issues.” See Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.Sup.1969); Boaz v. White’s Auto Stores, 141 Tex. 366, 172 S.W.2d 481 (1943) (emphasis added). That Rule now provides that “[i]n submitting the case, the court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict . . . .” (emphasis added). We think an instruction or definition is “proper” if it finds support in any evidence of probative value or the reasonable inferences that may be drawn therefrom, and if it might be of some aid or assistance to the jury in answering the issues submitted, cf. Mobil Chemical Co. v. Bell, 517 S.W.2d 245, 256 (Tex.Sup.1974); Union Oil Co. v. Richard, 536 S.W.2d 955 (Tex.Civ.App. — Beaumont 1975, writ ref’d n. r. e.); First State Bank & Trust Co. v. George, 519 S.W.2d 198 (Tex.Civ.App. — Corpus Christi 1974, writ ref’d n. r. e.).

In the instant case appellant was the only person who testified regarding the incident itself. She testified that as she was bending down looking at something on the floor, she was struck on the head by a broom. Her descriptions of the broom that struck her varied, however, at one point she stated that it was a “regular household broom.” When asked how the broom struck her, she consistently stated that she did not know because she was bending down. At one point, however, she did state that the broom “came from a distance.” She stated that a particular fellow employee was childlike and irresponsible, although she denied quarreling or engaging in horseplay with him prior to her injury. She testified that the broom struck her with such force that she was “almost completely blind” temporarily, and had intense pain and dizzy spells for many months afterward.

Based on the above evidence, it is a reasonable inference that the broom that struck appellant was wielded or thrown by a third person. Therefore, the trial court’s instructions relating to horseplay and injury caused by the act of another were proper. Appellant’s first point of error is overruled.

Appellant’s second and third points of error assert that the evidence conclusively established that her injury was received in the course of her employment and that the jury’s answer to Special Issue No. 1 was against the great weight and preponderance of the evidence. Appellant argues that the appellee’s failure to produce evidence in rebuttal of her testimony necessitates a finding in her favor. We disagree.

Appellant’s testimony was neither clear, direct, and positive nor free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon. The instant case, therefore, falls within the general rule that the testimony of an interested witness, such as a party to the suit, though not contradicted, does no more than raise a fact issue to be determined by the jury. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942).

Appellant relies on cases holding that the failure to produce evidence within a party’s control raises a presumption that if produced it would operate against him. See, e. g., H. E. Butt Grocery Co. v. Bruner, 530 S.W.2d 340, 343 (Tex.Civ.App. — Waco 1975, no writ). While this is a correct rule of law, it is inapplicable here because there was no showing that there was any evidence within the control of appellee that was not also available to the appellant. There was no showing that any of those persons who may have been present were still employees of Nugrape Suncrest Bottling Company at the time of trial or were available as witnesses. Therefore, no presumption arises from appellee’s failure to produce evidence not shown to have been within the control of appellee. Dalworth-Slurry Seal Co. v. Dawson, 408 S.W.2d 254, 256 (Tex.Civ.App. — San Antonio 1966, no writ); Bridge v. Sam Lattner Distributing Co., 489 S.W.2d 338, 341 (Tex.Civ.App.— Houston [14th Dist.] 1972, writ ref’d n. r. e.).

The jury was entitled to believe that considering its unexplained presence a broom did not strike appellant with such force that she was seriously injured and disabled for many months. Proof that appellant was injured at the hand of a third person would not, in and of itself, have prevented her from recovering. However, the evidence here is too weak for us to hold as a matter of law that the appellant’s injury was sustained while she was in the course of her employment. Nor is the jury’s answer so against the great weight and preponderance of the evidence as to be manifestly unjust. The judgment of the trial court is affirmed.

Affirmed.


text:
    L. J. HARRISON, Appellant, v. SOUTHLAND CORPORATION et al., Appellees.
    No. 19022.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 4, 1976.

      Jack C. Morgan, Morgan, Shumpert, Huff, Mosley & Co., Kaufman, for appellant.
    Stephen F. Fink, Thompson, Knight, Simmons & Bullion, Dallas, for appellees.
   GUITTARD, Justice.

In this suit against the owner of a grocery store and its employee for false imprisonment, the trial court rendered summary' judgment for defendants. The action arises from plaintiff’s arrest by police officers. The question for our decision is whether evidence of an accusation by the employee, Mrs. Perry, that plaintiff had committed a robbery supports an inference that she requested or directed the arrest. We hold that no such inference can be drawn. Consequently, we affirm.

The material facts are stipulated for the purpose of the motion for summary judgment as follows:

The parties would stipulate and agree that the actions which resulted in the arrest and detention of the Plaintiff occurred on September 20, 1970. That the Plaintiff was subsequently acquitted and released from custody on July 11, 1973. That the Dallas Police Department arrested the Plaintiff based upon the accusations of Defendant, Mrs. Perry, but that she played no active role in the arrest and detention of Plaintiff. Neither Defendant Southland Corporation nor Defendant Perry at any time themselves physically restrained, detained, imprisoned or arrested Plaintiff. The Dallas Police Department did, however, arrest Plaintiff on September 20, 1970, without a warrant based upon the accusations and information filed by Mrs. Perry, who was an employee of Southland Corporation at the time and was acting within the course and scope of her employment.

On this appeal, plaintiff relies on the rule that where more than one person participates in an unauthorized arrest, each is liable for the acts of all, as held in Wolf v. Perryman, 82 Tex. 112, 17 S.W. 772, 775 (1891), and McDonald v. Henderson, 250 S.W. 463 (Tex.Civ.App. — Amarillo 1923, no writ). Plaintiff concedes that liability of a store owner for an improper arrest by a police officer depends upon whether the defendant’s employee requested or directed the arrest, and that merely to report an alleged offense and identify the plaintiff as the offender does not establish liability for false imprisonment. Authorities so holding include Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063 (1898), and J. C. Penney Co. v. Reynolds, 329 S.W.2d 104 (Tex.Civ.App. — El Paso 1959, writ ref’d n. r. e.). Plaintiff argues, however, that the stipulation raises a fact issue because a jury would be permitted to infer that Mrs. Perry requested or directed the arrest from evidence that she accused and identified plaintiff as having committed the alleged robbery.

We conclude that no fact issue is raised. The stipulation states that the police “arrested the Plaintiff upon the accusations of Defendant Mrs. Perry, but that she played no active role in the arrest and detention of Plaintiff.” An inference from these facts that Mrs. Perry requested or directed the arrest would be only a “surmise or suspicion,” and, consequently, insufficient to raise a fact issue as to whether the defendant requested or directed the arrest. Joske v. Irvine, supra. According to the stipulation, Mrs. Perry did nothing more than to exercise a citizen’s privilege to report an alleged crime and identify the supposed offender. If the police acted without legal authority, neither Mrs. Perry nor her employer can be held responsible. Central Motor Co. v. Roberson, 154 S.W.2d 180, 183 (Tex.Civ.App. — Fort Worth 1941), affirmed sub nom., Burton v. Roberson, 139 Tex. 562, 164 S.W.2d 524 (1942). If the accusation was made with malice and without probable cause, and plaintiff was finally acquitted of the charge, he might have had ground for an action for malicious prosecution, but that question is not before us. We hold that the facts stipulated establish as a matter of law that plaintiff is not entitled to recover in this action for false imprisonment.

Affirmed.


text:
    Pat KIRKLAND, Appellant, v. Robert C. GASTON, Appellee.
    No. 19017.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 4, 1976.
    Rehearing Denied Dec. 2, 1976.

      Tom L. Larimore, Walker, Bishop & Lari-more, Fort Worth, for appellant.
    Robert B. Maloney, Dallas, for appellee.
   GUITTARD, Justice.

Appellant Pat Kirkland appeals from a judgment for appellee Robert C. Gaston on a written contract for a finder’s fee. Appellant contends that Gaston did not perform all the acts required to entitle him to payment under the contract. We hold that the contract provided for alternative performances by Gaston and that judgment was properly rendered on jury findings establishing that he had performed one of the alternatives.

The decision turns on interpretation of the contract. Appellant Pat Kirkland, president of Kirkland Mortgage Corporation, sought to obtain a substantial interest in a savings and loan association to provide funding for the corporation’s mortgage loan business. Toward that end, Kirkland sought the assistance of the appellee, Robert C. Gaston. After negotiations, Gaston’s attorney drew up the contract, which, after insertion of additional provisions, was signed by both parties. The material provisions of the contract are as follows:

THAT, PAT KIRKLAND of Dallas County, Texas is desirous of being the prime investor and incorporator of a new Texas Savings and Loan Association, to be formed under the Texas Savings and Loan Act, Article 852a, Vernon’s Annotated Civil Statutes.
THAT, PAT KIRKLAND desires the assistance of ROBERT C. GASTON to:
1. Determine the feasibility of a new Texas Savings and Loan Association;
2. Determine the proper location, if any, of a new Texas Savings and Loan Association within a one hundred mile radius of Dallas County, Texas or Tar-rant County, Texas;
3. Determine the possibility of purchasing a substantial interest in an existing Savings and Loan Association;
4. For ROBERT C. GASTON, with the approval of PAT KIRKLAND, to enlist the services of attorneys, realtors, economists, or others to prepare a charter, and complete requirements of the Texas Savings and Loan Act, Article 852a, Vernon’s Annotated Civil Statutes.
THAT, for such services rendered by ROBERT C. GASTON, PAT KIRKLAND agrees to pay all reasonable expenses incurred by ROBERT C. GASTON in performing above listed services; said expenses to include, but not limited to, automobile and travel expenses, and entertainment expenses.
THAT, PAT KIRKLAND agrees to pay in full, and to issue to ROBERT C. GASTON 10% of the total outstanding Reserve Stock issued before and within ninety days after the granting of the Charter to operate a Texas Savings and Loan Association. The stock shall be issued to ROBERT C. GASTON within four months from the date of incorporation.
THAT, should the charter be rejected by the Commissioner, then the obligation of PAT KIRKLAND shall be for the reasonable expenses incurred by ROBERT C. GASTON, as set out heretofore.
THAT, should an established or operating Savings and Loan Association be secured through the above outlined assistance of ROBERT C. GASTON, or should reserve stock in an established or newly chartered Savings and Loan Association be secured by PAT KIRKLAND, the Kirkland family or interests, PAT KIRKLAND agrees to pay to ROBERT C. GA-STON 5% of the total outstanding reserve stock acquired by Pat Kirkland, The Kirkland family, The Kirkland Corporation or Kirkland interests.
THAT, the performance of all parties of any act shall be within a reasonable time, but shall automatically terminate eighteen months after the date this agreement is signed.

Although the consideration to be paid to Gaston for his services is stated as percentages of stock, the parties agree that the intent was that Gaston should be paid in cash the value of the stipulated percentage of the stock at the time it was issued to Kirkland.

Four months after the execution of the agreement, Gaston advised Kirkland that a charter application for Town East Savings and Loan Association was pending with the Texas Savings and Loan Commissioner and that the Town East group was looking for investors. Gaston suggested that Kirkland contact the attorney for the group to explore the possibility of investment. Following this advice, Kirkland negotiated with the group and contracted to purchase subscription rights to forty thousand shares in the association, constituting forty percent of the initial stock issue, for $400,000. The Town East charter was conditionally granted by the Savings and Loan Commissioner, subject to insurance by the Federal Savings and Loan Insurance Corporation. Kirkland and his father were elected to the board of directors, and his father was designated as chairman.

According to Kirkland’s testimony, the F.S.L.I.C. conditioned issuance of its insurance on compliance with the requirements that no one person or family could own more than twenty percent of the savings and loan stock, that only one-third of the members of the board of directors could be engaged in the real estate or mortgage banking business, and that the stock be held in escrow for five years. The restriction on stock ownership barred Kirkland and his family from owning more than twenty percent of the stock if the charter was finally to be granted, and the restriction of the number of directors in the mortgage banking business prompted the board of directors to remove Kirkland and his father from the board. Kirkland found this arrangement unsatisfactory and he sold his subscription rights. The transaction produced $130,000 profit.

Gaston requested that Kirkland pay him $20,000 as his five-percent finder’s fee under the provision concerning services leading to securing stock in a newly-chartered savings and loan. Kirkland refused to pay any amount. Gaston then filed this suit for the amount he claimed he was owed under the contract. After trial before a jury and a verdict in Gaston’s favor, the court awarded judgment to Gaston for the amount claimed.

All of appellant’s points of error are based on his construction of the contract. He construes it as requiring appellee to perform all the acts enumerated before he is entitled to any compensation. Thus, appellant argues, appellee must prove not only that he determined the possibility of purchasing a substantial interest in an existing savings and loan association, but that he also determined the feasibility of a new association and its proper location. In our opinion, the contract is not subject to this interpretation. The following provision, in our opinion, is not dependent on any services with respect to the organizing and chartering of an entirely new association:

THAT, should an established or operating Savings and Loan Association be secured through the above outlined assistance of ROBERT C. GASTON, or should reserve stock in an established or newly chartered Savings and Loan Association be secured by PAT KIRKLAND, the Kirkland family or interests, PAT KIRKLAND agrees to pay to ROBERT C. GA-STON 5% of the total outstanding reserve stock acquired by Pat Kirkland, The Kirkland family, The Kirkland Corporation or Kirkland interests.

The contract imposes no obligation on Gaston except as a condition of his right to compensation. Kirkland’s obligation to pay may arise from either of two alternatives: (1) if Gaston renders services resulting in the granting of a charter to Kirkland and his family for a new savings and loan association, Kirkland agrees to pay Gaston the value of ten percent of the outstanding stock of that association; and (2) as provided in the paragraph above quoted, if Ga-ston’s services result in securing for Kirkland and his family an interest in a newly-chartered or existing association, Kirkland agrees to pay five percent of the value of the stock purchased. If Gaston performs either or both of these services, but Kirkland decides not to invest in the opportunities so developed, Kirkland agrees to pay Gaston’s reasonable expenses. Thus Ga-ston’s performance of either alternative will give rise to Kirkland’s obligation at least to pay Gaston’s expenses, and upon Kirkland’s acceptance of Gaston’s performance by investing in any of the opportunities developed by Gaston, then to pay compensation according to the percentage agreed on. If Kirkland invests in any of the opportunities developed by Gaston, that act satisfies the condition precedent to Kirkland’s obligation to pay Gaston in the specified measure, depending upon which services are rendered by Gaston and which services are accepted by Kirkland.

The jury found that Gaston did determine the possibility of purchasing a substantial interest in an existing savings and loan association, and that, as a result of Gaston’s efforts, Kirkland and his family secured shares of stock in the amount of $400,000. These findings are not attacked as unsupported by evidence in any of the points presented on this appeal, which assert only that the evidence fails to establish that plaintiff performed “all the acts required under their agreement.” This contention is apparently based on appellant’s construction of the contract, which we reject for the reasons given above. Accordingly, we take these findings as establishing that Gaston performed the second alternative provided in the contract, and, therefore, that he is entitled to the compensation which the contract provides for that performance.

This holding is in accordance with the rule that where a contract provides for alternative performances, if either alternative has been performed, it is no defense to the obligation of counter-performance that the promisor did not also perform the other alternative. See Moss & Raley v. Wren, 102 Tex. 567, 120 S.W. 847 (1909); Carter v. Smith, 184 S.W. 244, 245-46 (Tex.Civ.App. —Dallas 1916, writ ref’d); Simpson v. Eardley, 137 S.W. 378, 380 (Tex.Civ.App. — San Antonio 1911, writ ref’d).

Accordingly, the judgment of the trial court is affirmed.


author: BREWSTER, Justice.

text:
    The FORT WORTH NATIONAL BANK, Temporary Administrator of Estate of Mary Tabb Thompson, Deceased, Appellant, v. Tabb HARRELL, Independent Executor of Estate of Mary Tabb Thompson, Deceased, Appellee.
    No. 17771.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 5, 1976.
    Rehearing Denied Dec. 10, 1976.

      Law, Snakard, Brown & Gambill and R. F. Snakard, Fort Worth, for appellant.
    Simon & Simon and Henry W. Simon, Jr., Fort Worth, for appellee.
   OPINION

BREWSTER, Justice.

This is an appeal by the Fort Worth National Bank, Temporary Administrator of the Estate of Mary Tabb Thompson, deceased, from a judgment of the Probate Court of Tarrant County, which judgment ordered the Bank, as Temporary Administrator, to pay to Tabb Harrell, Independent Executor of the Estate of Mary Tabb Thompson, deceased, the sum of $31,048.46.

Litigation concerning the estate of Mary Tabb Thompson, deceased, began when Tabb Harrell offered for probate a will executed by Mary Tabb Thompson on August 7, 1973. The Bank also offered for probate a will and several codicils that were all executed by Mary Tabb Thompson several years before the will offered for probate by Harrell. The trial of the question of which of the wills should be admitted to probate began on July 15, 1974, and thereafter on July 16, 1974, during the trial, the parties made an agreement by which they compromised and settled the matters in controversy.

In general the settlement agreement was to the following effect: the will dated August 7, 1973, would be admitted to probate; Tabb Harrell would be appointed Independent Executor of the estate; from the estate the Executor would pay to the Fort Worth National Bank, as Trustee, $650,-000.00 to be paid in kind, at the discretion of the Executor, Harrell, said evaluation being determined as of May 31,1974, but to the effect that said $650,000.00 evaluation shall be reduced or increased according to the percentage that the total estate has increased or been reduced between May 31, 1974, and the time that the property is turned over by the Bank to the said Tabb Harrell, Executor; (July 31, 1974); the Lighthouse for the Blind, an interested party, would get $150,000.00 in cash or kind, and was to be the recipient of not less than 50% of the income of the $650,000.00 paid to the Bank as Trustee for the use and benefit of the Blind of Tarrant County and other charities; a duplex would be conveyed to Walter and Madeline Bruflat; and after the above distributions were made the balance of the estate would go to the Independent Executor, Tabb Harrell.

The settlement agreement consisted of two written instruments, both executed July 16, 1974, the first being designated “Memoranda of Agreement” and the other, “addenda to the Compromise and Settlement.” The provisions of the “Memoranda of Agreement” are in substance as is indicated in the last paragraph. The “Addenda to the Compromise and Settlement” contained the following provision that is material to the matters being considered here:

“2.

“Simultaneously with the delivery of the assets of the Estate of Mary Tabb Thompson, Deceased, to Tabb Harrell as Independent Executor, he shall:

“(a) Deliver to The Fort Worth National Bank property of said Estate (exclusive of real property) equivalent in value as of May 31, 1974, to the total sum of $650,000 provided, however, such valuation shall be adjusted upward or downward, by the percentage that the value of the total estate has increased or decreased as of the date of the July 31,1974 evaluation, all as provided in the ‘Memoranda of Agreement’ hereto attached. For the purpose of such adjustment it is agreed that the value of the Estate on May 31, 1974, was $2,603,590.00 (Emphasis supplied.)

Pursuant to the settlement agreement a judgment was rendered admitting the August 7, 1973 will to probate on August 15, 1974. Thereafter in the same case on September 9, 1975, Tabb Harrell, Independent Executor of the Estate of Mary Tabb Thompson, deceased, filed what he designated as a “Motion for Clarification and Interpretation of Assets Distributed Based Upon Judgment.” He therein alleged that the Bank in making its May 31,1974 evaluation of the estate did not include accrued interest on the interest-bearing assets of the estate, but that in its later evaluation (July 81, 1974), made for the purpose of determining the amount of the increase or reduction of the $650,000.00 trust fund that was agreed on, the Fort Worth National Bank did include interest that had accrued on some of the interest-bearing assets; that by including that interest the Bank increased the value of the estate, thereby reducing the amount of the deduction from the $650,000.00 trust fund; and that because of those facts, $18,000.00 is now due and owing to Harrell by the Bank, as Temporary Administrator; and Harrell prayed that the Bank be ordered to pay to Harrell this $18,000.00 and for general relief.

A hearing was then held on this motion, and at its conclusion the Probate Court awarded Harrell a judgment against the Bank, as Administrator, for $31,048.46. The Bank here appeals from that decree.

We reverse and render.

The matters involved here are matters “incident to an estate” within the meaning of Sec. 5(d) of the Texas Probate Code. The case involves the settlement or distribution of an estate.

The Bank’s first point of error is that the trial court erred in admitting into evidence over its objections Harrell’s Exhibits Nos. 1 through 8, and No. 10, and any oral testimony pertaining thereto in support of appel-lee’s motion for clarification.

Its second point of error is that the trial court erred in construing the Compromise and Settlement Agreement and the Addenda thereto.

We sustain those two points of error.

The parties had agreed that property equivalent in value as of May 31, 1974, to the sum of $650,000.00 would be taken from the Thompson estate and put into a trust to be administered by the Bank, as Trustee, but they provided that such evaluation would be adjusted up or down by the same percentage that the value of the total estate had increased or decreased between the date of May 31, 1974, and the date of an evaluation to be made as of July 31, 1974.

In the “Addenda to the Compromise and Settlement Agreement” relative to the matters just referred to, the parties expressly agreed as follows: “For the purpose of such adjustment it is agreed that the value of the Estate on May 81, 1974, was $2,603,-590.00.” (Emphasis supplied.)

The real question presented by this first point of error is whether Harrell, after having expressly agreed with the Bank on the value (of the estate as of May 31, 1974) that was to be used in determining what adjustment if any would be made on the value of the $650,000.00 trust estate, can completely disregard this agreed valuation, and have a trial in which the issue of the value of the estate as of May 31, 1974, is treated as an open fact issue. Can Harrell disregard that part of the agreement in an instance such as this where he has not sought to have the agreement reformed on the grounds of fraud, accident or mistake?

The settlement agreement and the addenda in no way indicate how the parties went about choosing their agreed figure of $2,603,590.00 as being the value of the Mary Tabb Thompson estate as of May 31, 1974. Oral evidence was offered to the effect that while the attorneys were negotiating the settlement, a Bank employee got from the Bank a copy of what it called a Review Sheet, prepared for its internal use, which purported to list the assets of the estate and the value of the items. It listed a number of items of real estate as being worth $1.00. The total current market value as shown on that review sheet (Ex. No. 10) was shown to be $2,538,597.89. The parties knew that the $1.00 value there put on the real estate was incorrect, so they had one of the bankers give his best estimate of the value of the estate’s realty, which he placed at $65,000.00. The parties than added that sum to the $2,538,597.89. This gave a total of $2,603,597.89, which was the same figure that the parties later inserted into their addenda to the settlement agreement as being the agreed value of the Mary Tabb Thompson estate as of May 31, 1974.

Harrell, at the hearing, proved up his case by the testimony of Mr. Mike Liles, one of his attorneys, and by the use of the complained of exhibits that Liles had prepared.

All of the Exhibits Nos. 1 through 8 and No. 10 and the accompanying testimony of Liles tended to show that the May 31, 1974 valuation figure of $2,603,590.00 that the parties had agreed upon was not in fact the true value of the Mary Tabb Thompson estate as of May 31, 1974. That evidence was offered for the purpose of proving that the figure agreed on was not the true value of the estate as of May 31, 1974.

For example, Exhibit No. 3 brought out that on the May 31, 1974 review statement the total real estate value was shown as $65,000.00 and on the July 31, 1974 statement, the value of the surface real estate was shown as $77,810.00 and the minerals (real estate) was listed as $10,903.00, totaling $88,713.00. This was a difference of $23,713.00 in the value of the real estate as shown on the two statements, although Liles testified that there was no real economic change that occurred between the two dates. He then contended that the real estate value should have been the same on both statements and that $23,713.00 should therefore be subtracted from the July 31, 1974 total. The same result would be obtained by adding that figure to the review sheet.

Exhibit No. 4 and Liles’ testimony showed that on the July 31, 1974 statement was listed “Sundry Assets” consisting of a Chevrolet automobile, miscellaneous household furniture, furnishings and personal effects valued at $5,500.00. Liles testified that this asset was not listed on the May 31, 1974 review and that the $5,500.00 should be subtracted from the July 31, 1974 total valuation or added to the May 31, 1974 figures.

Exhibit No. 5 and Liles’ testimony was to the effect that the July 31, 1974 statement listed accruals of interest on interest-bearing obligations in the amount of $2,767.59 and that the May 31,1974 review statement showed no such accruals of interest. He testified that because of this inconsistency the accounts should have been adjusted by subtracting the $2,767.59 from the July 31, 1974 evaluation.

Exhibit No. 6 and Liles’ testimony relative thereto indicate that there should be another adjustment by subtracting $21,-342.34 from the July 31, 1974 total. They say this was because of the difference in the way the cash on hand item was handled in the two statements.

Liles testified that when effect is given to the various adjustments that he testified should be made between the May 31, 1974 review statement and the July 31, 1974 valuation, the result is that the value of the estate diminished between the two dates by 6.47%.

When the Bank delivered the assets of the estate to Harrell it kept as the corpus of the trust estate $633,791.00. Liles contended that when these adjustments that he testified about were given effect, the Bank should have kept for the trust only $604,-500.00, this being after the 6.47% of the $650,000.00 was deducted from that figure. This difference was $29,291.00, and the trial court gave Harrell a judgment for that sum plus 6% interest on it from November 1, 1974, to January 16,1976, date of judgment. This totaled $31,048.46.

At the beginning of the hearing the Bank filed a pleading wherein it alleged that since neither the compromise and settlement agreement nor the addenda thereto were ambiguous, it would be improper for Harrell to introduce extrinsic evidence and that the court could not properly consider such evidence in passing on the motion.

Also at the beginning of the hearing when Liles started to testify about the exhibits referred to, counsel for the Bank objected to Liles’ giving any evidence or testimony concerning the facts surrounding the manner in which this agreement was arrived at because the agreement speaks for itself. The trial court gave counsel for the Bank a running bill of exceptions to that character of evidence.

The parties admit that the settlement agreements involved here are not ambiguous so as to require explanation, and we hold that they are not ambiguous. Harrell in no way seeks to reform the settlement agreements on the ground that they, or parts of them, were induced by fraud, accident or mistake. The instruments are not incomplete so as to require extrinsic evidence to give them meaning.

We hold that the evidence complained of was inadmissible because it was in violation of the parol evidence rule. The trial court erred in admitting it. Coleman v. Forister, 514 S.W.2d 899 (Tex.Sup., 1974) and Ross & Sensibaugh v. McLelland, 262 S.W.2d 205 (Tex.Civ.App., Fort Worth, 1953, writ ref., n. r. e.). The evidence permitted Harrell to vary, add to and contradict the agreement he had made as to the May 31, 1974 valuation. The evidence was to the effect that the valuation of the estate on that date was not the valuation that the parties had agreed on, but that it was in fact another figure.

The effect of the court’s ruling admitting the complained of exhibits and Liles’ testimony relating to the proposed adjustments was to permit Harrell to relitigate the issue of the value of the Mary Tabb Thompson estate on May 31,1974, although the parties had expressly agreed that such value would be taken as $2,603,590.00. The court’s ruling rendered wholly ineffective and meaningless the parties’ agreement as to the value on May 31, 1974.

Under the facts of this case the parties were bound by their agreement. When this case began, the agreement itself established the value of the estate on May 31, 1974, at $2,603,590.00. The parties were precluded by the parol evidence rule from introducing the complained of exhibits and the testimony of Liles to establish that the figure the parties had agreed on as being the May 31, 1974 valuation was not the true value of the estate and that such value was in fact another figure.

The parol evidence rule is a rule of substantive law and evidence admitted in violation of it is without probative force, even though not objected to. Ross & Sensibaugh v. McLelland, supra, and Texarkana & Ft. S. Ry. Co. v. Brass, 260 S.W. 828 (Tex.Com.App., 1924, adopted). In the latter case the Commission of Appeals said at page 830: “Because there is a written contract that has merged and destroyed the identity and force of all acts and intentions leading up to it, whether parol evidence of such acts and intentions be admitted without objection, or be sought to be established by argument or inference from facts admitted without objection, it equally follows that the outside matter, in the absence of ambiguity, fraud, accident, or mistake with respect to the contract, or of some other recognized ‘exception,’ is ‘incompetent,’ is ‘without probative force,’ is ‘intrinsically without weight,’ ‘cannot be shown,’ and ‘will not support a verdict.’ ”

In the case of Gurley v. Woodbury, 177 N.C. 70, 97 S.E. 754 (1919), a compromise and settlement of a lawsuit was involved. One provision in the written settlement agreement was that Gurley would become the owner of certain Bank stock and that in exchange for that Woodbury would be allowed on a debt he owed the Bank a credit equal to the actual book value of such Bank stock as that value was shown by the books and records of the Bank. The court held that since the parties had contracted that the value of the stock would be ascertained by a certain designated means, that the question presented by the lawsuit was not the actual or market value on that date, but such question was what was the value of the stock measured by the contract, which provides that the credit shall be “ ‘the actual book value of the said shares of stock, as shown by the records and books of said bank.’ ”

In Burden v. Colonial Homes, Inc., 79 N.M. 170, 441 P.2d 210 (1968), a question was involved that was similar to the one we have here. That court said at page 213 the following: “The parties, having agreed upon a settlement sum which included deposits or franchise payments, cannot now attempt to go outside the agreement for evidence to support a contrary conclusion, that deposits or franchise payments were not intended to be part of the settlement sum.”

The following is from Jones v. Dumas Development Co., 229 S.W.2d 936, at page 939 (Tex.Civ.App., Amarillo, 1950, writ ref., n. r. e.): “It is presumed that every provision of a contract is incorporated therein for a purpose and the courts may not disregard any of the language there used by the parties to express themselves or add anything thereto.”

Holdings to the same effect are: General Ins. Corporation v. Laney, 224 S.W.2d 746 (Tex.Civ.App., Fort Worth, 1949, no writ hist.), and Masterson v. Gulf Oil Corporation, 301 S.W.2d 486 (Tex.Civ.App., Galveston, 1957, writ ref., n. r. e.).

The Bank’s 4th point of error is that the court erred in awarding Harrell a recovery of $31,048.46 in view of the fact that he prayed for a recovery of only $18,000.00.

The facts in this connection are unusual. Harrell’s pleadings or motion alleged that in arriving at the value of the estate as shown on the May 31, 1974 review sheet that is involved the Bank did not include $18,000.00 of accrued interest that had accrued on interest-bearing assets of the estate, but that it did include that item in arriving at the July 31, 1974 evaluation.

Harrell then prayed for a recovery of this $18,000.00 from the Bank. The $18,000.00 interest item was the only one referred to in Harrell’s pleading on which the ease was tried.

The evidence offered by Harrell was to the effect that this interest item only amounted to $2,767.59 instead of the $18,-000.00 that Harrell had alleged.

Harrell’s testimony at the hearing was not restricted to the interest item that had been alleged in the pleading. He was permitted to show several other items that were shown on the July 31, 1974 valuation sheet that did not appear on the May 31, 1974 review sheets. These are heretofore described in this opinion and are reflected by the exhibits complained of. The figures on those items which were not pleaded were added to the $2,767.59 interest item which was the only one pleaded. Together they all totaled $29,291.00. The court then added 6% interest on that figure from November 1, 1974, to January 16, 1976, and then gave Harrell a judgment for the total or $31,048.46.

It is not necessary for us to pass on the Bank’s 3rd and 4th points of error. They have become immaterial because we have sustained Harrell’s first two points of error.

We are now presented with the question of whether we should here render judgment or remand the matter to the trial court.

With this question in mind, counsel for Harrell was asked, while arguing this ease before this Court, whether Harrell questioned the Bank’s valuation of the estate as of July 31, 1974. This Court was advised that Harrell did not question it in any way, his sole contention being that if items were listed on that valuation list that they should also have been listed on the May 31, 1974 review sheet that was involved. Harrell’s lawyer, Mr. Liles, took the same position while testifying.

In this case the parties established the May 31, 1974 valuation by their agreement as being $2,603,597.89. Neither side contests the valuation made by the Bank as of July 31, 1974, which figure was $2,538,-120.00. The estate thus decreased in value between those two dates by $65,470.00. The percent of shrinkage of the entire estate was thus 2.51%. That percent of the $650,000.00 is $16,344.00. Deducting that sum from the $650,000.00 leaves $633,-656.00. This was the value of the property that the Bank retained to form the corpus of the trust for the blind.

We hold that the Bank’s computations were correct.

Since the value of the estate on May 31, 1974, was established by the agreement of the parties as being $2,603,597.89 and since the parties admit that the valuation of the estate as made by the Bank on July 31, 1974, is correct, we conclude that we should here render judgment that Harrell recover nothing from the Bank in any capacity.

The trial court’s judgment is reversed and judgment is here rendered that appel-lee, Tabb Harrell, Independent Executor of the Estate of Mary Tabb Thompson, deceased, recover nothing by his suit from the appellant, Fort Worth National Bank, in any capacity. All costs are taxed against Tabb Harrell, Independent Executor of the Estate of Mary Tabb Thompson, deceased.


author: PER CURIAM. GUITTARD, Justice.

text:
    Bettysu BENNETT, Appellant, v. Burt E. NORTHCUTT, Appellee.
    No. 19005.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 11, 1976.

      John D. Crawford, Dallas, for appellant.
    Green, Gilmore, Crutcher, Rothpletz & Burke, Jerry C. Gilmore, H. Wayne Meac-hum, Dallas, for appellee.
   PER CURIAM.

In this action to change the name of a minor child, the trial court denied petitioner’s motion to include in the statement of facts the records of two interviews with the child by the judge in chambers. At the first interview the court reporter and both counsel were present. At the second interview the judge and the child were alone. After the trial court had denied the change of name, petitioner requested the reporter to prepare the statement of facts and submitted to the court a written request that the statement of facts include the reporter’s record of the first interview and a narrative statement by the judge concerning the second interview. The request was denied by written order. This ruling is assigned as error on this appeal.

We agree that the trial court erred in denying this request. Petitioner is entitled to a complete record of the proceedings in the trial court. Cf. Robinson v. Robinson, 487 S.W.2d 713, 715 (Tex.1972); and Wilkinson v. Evans, 515 S.W.2d 734, 736-37 (Tex.Civ.App. — Dallas 1974, writ ref’d n.r.e.); Whatley v. Whatley, 493 S.W.2d 299, 301 (Tex.Civ.App. — Dallas 1973, no writ); and cf. also Tex.Family Code Ann. § 14.07(c) (Vernon 1975), requiring the court to cause a record to be made of an interview in chambers in a conservatorship proceeding.

We need not, however, reverse the judgment on this ground. We are authorized by Tex.R.Civ.P. 428 to direct preparation and transmission of a supplemental record if anything material has been omitted from either the transcript or the statement of facts. We do not know whether the omitted matter is material, but we cannot presume that it is immaterial, since we must examine the entire record for the purpose of reviewing the trial court’s exercise of discretion in deciding whether the child’s name should be changed.

The record now before us gives no indication of why petitioner’s request was denied. If the trial court considers that any matter in the interview should be treated as confidential, the proper course is not to exclude the confidential matter from the statement of facts, but to make an appropriate order for the guidance of the attorneys and other officers of the court.

Accordingly, we direct the trial court to grant appellee’s request for the court reporter’s record of the first interview with the child and also for a narrative statement of the second interview, and to include this material in a supplemental statement of facts to be certified and transmitted in accordance with Tex.R.Civ.P. 377. Immediate attention to this matter is requested on the part of the judge, the court reporter and counsel, since our decision on the merits of the appeal awaits completion of the record.

GUITTARD, Justice.

This appeal is from denial of an application to change the name of a nine-year-old girl. The mother, after divorce and remarriage, filed the application to change the child’s surname to that of the mother’s present husband. The father appeared and opposed the change. After a nonjury trial the juvenile court denied the change, and the mother appeals. We hold that the court did not abuse its discretion.

The question of abuse of discretion is presented by appellant’s first point. Appellant asserts that she has shown the change to be in the best interest of the child, within the terms of Tex.Family Code Ann. § 32.04 (Vernon 1975):

After a hearing, for a good cause shown, the court may order the name of the minor changed as requested in the petition if it finds that the change is in the best interest of the minor.

This provision has not been construed in any reported decision. It replaces the following provision of former Tex.Rev.Civ. Stat.Ann. art: 5929 (1925):

The judge of said court, if the facts alleged and proven satisfy him that such change will be for the benefit and interest of the minor shall grant authority to change his original name and adopt another.

Under the old statute it was held that a protesting father has a protectable interest in having his child bear his surname. Newman v. King, 433 S.W.2d 420, 423 (Tex.1968). It was also held that the action of a trial court in granting authority for the change of the name of a minor was not subject to review on appeal except on a showing of abuse of discretion. Ex parte Taylor, 322 S.W.2d 309, 312 (Tex.Civ.App.— El Paso 1959, no writ). The same standard of review was applied where the application for change of name was denied. Plass v. Leithold, 381 S.W.2d 580, 581-82 (Tex.Civ.App. — Dallas 1964, no writ).

We do not think that the standard of review in such matters has been changed by repeal of article 5929 and adoption of § 32.-04 of the Family Code. Although the code eliminates the expression “if the facts alleged and proven satisfy him that the change will be for the benefit and interest of the minor,” and provides instead “if it finds that the change is in the best interest of the minor,” the controlling consideration under either provision is the best interest of the minor. Section 32.04 cannot be interpreted as narrowing the scope of the trial court’s discretion since it provides that on such a finding the court “may order the name of the minor changed,” whereas article 5929 provided that if the facts proven satisfy the judge, he “shall grant authority for the change.” On the other hand, we do not construe the usually permissive “may” to broaden the trial court’s discretion so as to authorize denial of the change without regard to the evidence.

Under the new statute, therefore, as well as under the old, the standard of review is “abuse of discretion.” This concept is not easily defined. Brazos River Conservation & Reclamation District v. Harmon, 178 S.W.2d 281, 292-93 (Tex.Civ.App. — Eastland 1944, writ ref’d w.o.m.). It does not imply bad faith or intentional wrong. Chamberlin v. Chamberlin, 44 Wash.2d 689, 270 P.2d 464, 469 (1954); State v. District Court of Jefferson County, 213 Iowa 822, 238 N.W. 290, 294-95, 80 A.L.R. 339, 347 (1931). However, it is more than an error in judgment. Johnson v. City of Richardson, 206 S.W.2d 98, 100 (Tex.Civ.App. — Dallas 1947, no writ). In reviewing the trial court’s determination of a matter within its discretion, the appellate court cannot simply substitute its own judgment for that of the trial court. Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959). The test is whether the trial court’s decision was arbitrary or unreasonable. Landry v. Traveler’s Insurance Co., 458 S.W.2d 649, 651 (Tex.1970).

Application of this test to the evidence in this case has convinced us that no abuse of discretion has been shown. The child was adopted in infancy by Burt and Bettysu Northcutt, who named her Betsy Lynn Northcutt. When Betsy was seven years old, Burt and Bettysu were divorced. Bet-tysu was appointed managing conservator and Burt was given visitation privileges. The couple also had a son in his late teens, who made his home with Bettysu and Betsy. In September 1974 Bettysu married Edward Bennett, who had become well-acquainted with Betsy. Immediately on learning of the marriage, Betsy announced that her name, also, would be Bennett. Although her stepfather told her that she would have to continue to bear the North-cutt name, she told her teachers and others at her school that her name should be changed to Bennett. Whenever her teachers would call her Northcutt, she would request that it be changed to Bennett, and when they made the correction, she would smile and appear pleased. She signed all her school papers “Betsy Bennett,” and she was known by that name at her church and among her friends.

The evidence shows that Betsy’s preference for the name Bennett has never wavered and has continued for almost two years. Her pediatrician for more than five years testified that he had discussed the matter with her privately and that in his opinion the name was so important to her that it would be detrimental for her to use the name Northcutt. A graduate psychologist testified that he had interviewed her and that in his opinion she would experience considerable anxiety if she is not allowed to change her name.

Appellee offered the testimony of two experts who answered hypothetical questions, but neither had ever talked with Betsy, and their opinions were given without knowledge that she had used the name Bennett consistently for almost two years. Both admitted that if the child had a strong identification with the new name, as the evidence undoubtedly shows, she could experience confusion and anxiety if she were required to resume the old name. No other evidence was offered that tends to support the trial court’s presumed finding that the change would not be in Betsy’s best interest. Consequently, the evidence would be easily sufficient to support an order granting the change, if the court had so decided. Newman v. King, 433 S.W.2d 420 (Tex.1968).

Nevertheless, it does not follow that the trial judge abused her discretion in denying the change. Courts may take judicial notice of well-known facts concerning the habits and activities of human beings. 1 C. McCormick & R. Ray, Texas Evidence § 197 (2d ed. 1956). Among these well-known facts is the practically universal custom of giving a child the father’s surname. Equally well known is the fact that a surname provides a means of identifying the child with the father’s family. For reasons such as these, apparently, the supreme court has recognized the general rule that courts will exercise the power to change a child’s name reluctantly and only when the substantial welfare of the child requires it. Newman v. King, 433 S.W.2d 420, 423 (Tex.1968).

In the light of this recognized judicial reluctance to change the child’s name, the trial judge, even in the absence of explicit evidence, could reasonably draw the inference that the Northcutt name was a benefit to the child that would be in her best interest to keep, notwithstanding her disposition to discard it. Burt Northcutt could not be expected to present evidence to the effect that the change would impair his love for his daughter or that it would weaken his sense of obligation to take care of her. We hold that he had no such burden. The burden, rather was on the applicant to establish that the change would be for the best interest of the child, and the absence of evidence to the contrary does not establish abuse of the trial court’s discretion. Plass v. Leithold, 381 S.W.2d 580, 581 (Tex.Civ.App. — Dallas 1964, no writ).

The evidence in the present case, one-sided though it is, establishes only that the child herself has a strong preference for the change of name and will experience emotional distress if her preference is denied. No other evidence was presented indicating that the change would be of any greater advantage to her than to any other child whose mother has divorced and remarried. The question then comes to whether the trial court acted arbitrarily or unreasonably in failing to give controlling weight to her preference and to her probable reactions on being denied that preference. We conclude that no arbitrary or unreasonable action is shown. In determining the best interest of the child, the trial judge has broad discretion because she has the opportunity to observe and evaluate the personalities involved, weigh the credibility of their testimony and assess the physical, mental, moral and emotional needs of the child. Mumma v. Aguirre, 364 S.W.2d 220, 223 (Tex.1963). In exercising that discretion, the child’s preference is only one of the factors to be considered.

Although we have found no decision concerning the weight to be given a child’s preference in a proceeding for change of name, analogies may be found in other cases in which the children’s best interest was the controlling issues and the children were considerably older than the child in this case. In a custody proceeding, the preference of the child, if of sufficient age to judge for himself, may be weighed along with other evidence, but it is not controlling. Dunn v. Jackson, 231 S.W. 351, 353 (Tex.Comm.App.1921, holding approved) (14 years); Goodale v. Goodale, 497 S.W.2d 116, 120 (Tex.Civ.App. — Houston [1st Dist.] 1973, writ ref’d n.r.e.) (12 years); Brooks v. Brooks, 480 S.W.2d 463, 465 (Tex.Civ.App. — Eastland 1972, no writ) (over 14 years); Lewis v. Cushing, 444 S.W.2d 815, 817 (Tex.Civ.App. — Beaumont 1969, no writ) (12 years). Neither is the child’s preference controlling with respect to visitation. Walker v. Showalter, 503 S.W.2d 624, 626 (Tex.Civ.App. — Houston [1st Dist.] 1973, no writ) (13 years). We note also that Tex. Family Code Ann. § 14.07 (Vernon 1975) provides that a child more than fourteen years of age may choose the managing conservator, but even for a child of that age the choice is “subject to the approval of the court.” If the preferences of older children do not control determinations of best interest in matters of custody and visitation, then, it seems to us that neither should it control in an application for change of name when the child is as young as nine.

We recognize that in the cases cited the children’s preferences were not the only evidence in the record, but were weighed against other evidence tending to support different conclusions. Those decisions bear on our question, however, since the courts appear to have regarded a child’s preference as no stronger than opinion evidence, which the trial judge is not required to accept as conclusive on the issue of the child’s best interest, even if no contrary evidence is offered. Cf. Gibbs v. General Motors Corp., 450 S.W.2d 827, 829 (Tex.1970). The trial judge may evaluate that preference, like any othér opinion, in the light of the child’s age, personality, and general situation. In this case the judge was presumably conscious of the value of the father’s care, counsel, protection and support and sensitive to any influence that might deprive Betsy of the full benefit of her relationship to him and his family. Evidently the judge was not persuaded that the change was in Betsy’s best interest, and we cannot say that this conclusion was arbitrary or unreasonable.

Similar reasoning applies to appellant’s contention that denial of the application for change of name was so contrary to the great weight and preponderance of the evidence as to be manifestly unjust and unfair. The child’s best interest is a fact issue to be determined from the evidence, but it is a matter of inference and opinion rather than simple objective fact. The trial judge had the responsibility to evaluate the opinions expressed by the expert witnesses and to weigh the strength of Betsy’s preference and emotional reactions. Our examination of this record has not convinced us that the judge’s conclusion was so clearly contrary to the great weight and preponderance of the evidence as to be manifestly unjust and unfair.

In her third point appellant complains of the court sustaining appellee’s objection to a hypothetical question directed to appellee’s witness Dr. Entzminger on cross-examination. We find this error, if any, to be harmless, since Dr. Entzminger’s testimony as a whole clearly shows that he did not consider a change of name detrimental under the circumstances stated in the hypothetical question. Consequently, his answer to this question would only have been cumulative of his other testimony.

Appellant’s fourth point complains of the trial court’s striking certain testimony of appellee’s witness Campbell on cross-examination, which was offered for impeachment. This ruling also was harmless. Campbell’s testimony was weak at best, because he had not seen Betsy since she was quite small and only testified generally that a change of name “could be detrimental” to Betsy because a child finds an identity in a name and the problem of identity “can be increased by a change of name.” This testimony falls short of an opinion that the change would actually be detrimental to Betsy. Whatever weight this testimony might have had was effectively removed by Campbell’s own testimony on cross-examination that if the child had used the Bennett name for almost two years, whether she would be confused to change it back to Northcutt “would depend on whether the child actually integrated and moved to that identity.” Consequently, we cannot assume that exclusion of the impeaching testimony, which, of course, the judge had already heard, was an error that probably influenced the judgment.

In her fifth point appellant contends that the judge erred in failing to file findings of fact and conclusions of law, after appellant had made a proper request for such findings under Tex.R.Civ.P. 296 and had given the judge a timely reminder of this request, as provided by Tex.R.Civ.P. 297. We find that this error, also, was harmless. Only one issue of fact was presented for decision by the trial judge, namely, whether the change of name was in the best interest of the child. An express finding on this issue could have made no difference on this appeal, and other findings would be merely evidentiary. The judgment necessarily implies a finding that the change was not in the child’s best interest. Appellant challenges that finding in her first and second points, and she has not made any showing of how the trial court’s failure to file findings and conclusions has prevented her from making a proper presentation of her case to this court. Consequently, under Tex.R.Civ.P. 434, the error is harmless. See Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944); McClendon v. McClendon, 289 S.W.2d 640, 644 (Tex.Civ.App.—Fort Worth 1956, no writ); Cantu v. Cantu, 253 S.W.2d 957, 958 (Tex.Civ.App.— San Antonio 1952, no writ).

Affirmed.