text:
    LOCUS CONSTRUCTION COMPANY, INC., Appellant, v. William M. HOLLEY and National Surety Corporation, Appellees.
    No. 18582.
    Court of Civil Appeals of Texas, Dallas.
    May 22, 1975.
    Tom D. Matthews, Jr., Matthews, Matthews, Sechrist & Madrid, Dallas, for appellant.
    James H. Baumgartner, Jr., Vial, Hamilton, Koch, Tubb, Knox & Stradley, Tom Sands, McDearman, Lair, Balias, Sands & Pierce, Dallas, for appellees.
   AKIN, Justice.

Locus Construction Company sued to recover money alleged to be fraudulently converted for the use and sole benefit of the defendant William Holley, a former executive vice president of Locus. Locus joined National Surety Corporation as a defendant to recover money allegedly due under a blanket position bond insuring Locus against any loss of money or other property which Locus sustained through any fraudulent or dishonest acts of any of its employees. Holley filed a counterclaim against Locus contending that Locus was indebted to Holley in the sum of $17,851 for services performed and moving expenses. Prior to submission of the case to the jury, Locus and Holley stipulated that Locus was entitled to recover from Holley the sum of $12,885.34 and that Holley was entitled to recover from Locus the sum of $5,660.73. The jury found that Holley should be paid $9,522.50 for services rendered and relocation expenses.

Based upon the jury’s verdict and the stipulations of the parties, the trial court entered judgment that Locus take nothing from National Surety and that Holley recover from Locus the sum of $2,797.89 (the difference between the stipulated sums and the jury’s award of money to Holley). Locus appeals.

Three questions are presented by this appeal: (1) Did the trial court err in failing to grant a new trial because the jury’s answer in the negative to special issue number one was against the great weight and preponderance of the evidence? (2) Was Holley entitled to compensation awarded by the jury for services rendered after September 1971, the month for which Holley received his final monthly salary from Locus pursuant to the April 1971 agreement? (3) Did the trial court err in submitting to the jury the question of whether Holley should be reimbursed for his relocation expenses incurred upon his return to Dallas after termination of employment? We answer the first and third questions in the negative and the second in the affirmative. We, therefore, affirm the judgment of the trial court.

Facts

From 1966 through part of 1972, Holley was employed by Locus as executive vice president in charge of all construction projects. In April 1971, Locus decided to discontinue its construction business. Locus’s president and Holley agreed to a plan to complete all existing contracts. This agreement was reduced to writing in a memorandum dated April 27, 1971, from Locus’s president to Holley. The agreement, provided among other things, that for a period of three months Holley was to be paid a salary of $1500 per month by Locus and that he was to receive a rent-free office for the guaranty period of a project known as the Arbrook job; and that Holley would handle any guaranty work on all jobs during the three-month period for cost plus ten percent with no eharge for Holley’s time. Pursuant to this agreement Holley continued the operation of Locus’s construction project. Holley was unable to complete all projects within the three-month period set forth in the memorandum because one of Locus’s subcontractors was unable to honor its contract on the Arbrook project due to financial difficulties. Completion of the Arbrook job was, therefore, substantially delayed.

In connection with the Arbrook project, Accent Electronics billed Locus in June 1971 for certain sound equipment it furnished. Holley directed Locus to make payments to Accent in the sum of $8,053.20 and, thereafter, invoiced Arbrook in his own name for this amount plus a profit. Holley received these funds from Arbrook but did not reimburse Locus. In November 1971, Holley entered the $8,053.20 in Locus’s books as an account payable to Locus by Holley. This transaction was the basis of Locus’s alleged cause of action against both Holley and National Surety.

In October 1971, Holley advised Locus’s president that he could no longer continue to operate under the terms of the April 1971 agreement because of the delay precipitated by the subcontractor’s insolvency. Locus’s president advised Holley that he should continue with the project until completion, and that payment for Holley’s additional services would be negotiated at a later time. No such negotiations, however, took place. Holley continued to work on Locus’s contractual commitments until late September 1972, when the problems relating to the Arbrook project were finally solved. This litigation ensued.

(1) Was the Answer to Special Issue Number One Against the Great Weight and Preponderance of the Evidence?

In attacking the take-nothing judgment against National Surety, Locus contends that the trial court erred in failing to grant a new trial because the jury’s answer to special issue number one is against the great weight and preponderance of the evidence. The jury answered in the negative the following question: “Do you find from a preponderance of the evidence that Holley caused Locus to expend $8,053.20 of Locus’s funds to pay for materials upon which only Holley benefitted ? ” [Emphasis added.] We cannot agree with Locus’s contention. It is undisputed that Holley caused Locus to expend the $8,053.20 to pay for materials on the Arbrook job; however, the phrase “upon which only Holley benefitted” is disputed. This language can be construed reasonably under the evidence that both Holley and Locus benefitted; hence, the jury’s answer is supported by evidence in the record. A fair construction of the evidence is that Locus benefitted because it was obligated to complete its contract with Arbrook. Indeed, this was the very basis of Locus’s memorandum agreement with Holley. We hold that the jury’s answer was not against the great weight and preponderance of the evidence.

(2) Compensation For Services Rendered after September 1971

With reference to Holley’s counterclaim for services rendered under the theory of quantum meruit the jury was asked the following question:

Do you find from a preponderance of the evidence that Holley at the insistence and request of Locus performed additional services for the benefit of Locus in excess of those services described in plaintiff’s exhibit one [the April 27, 1971 agreement].

The jury answered this question in the affirmative. Locus contends that there is no evidence or in the alternative, insufficient evidence, to support the jury’s response. We disagree.

Locus’s president admitted that subsequent to April 1971, he and Holley had at least two telephone conversations during which Holley objected to the compensation provisions of the April 27,1971, agreement. During these conversations, Locus’s president instructed Holley to “go ahead with it [the contract work] and we will work it out [your compensation].”

Holley testified that he worked full time for Locus until April 1972, and part-time thereafter until September 1972. This additional work was primarily the result of the insolvency of Locus’s mechanical subcontractor on the Arbrook project. This caused many unanticipated problems such as warranty disputes with the subcontractor’s suppliers for equipment delivered but improperly installed. Holley employed additional personnel and personally directed them to complete the subcontractor’s guaranty work. The uncontroverted evidence supports the jury’s finding that work in addition to that contemplated by the memorandum agreement was performed by Holley and assented to by Locus.

Locus also argues that there is no evidence or, in the alternative, insufficient evidence to support the jury’s response to the following special issue:

Find from a preponderance of the evidence what is the fair and reasonable compensation, in place actually performed, and for substantially similar work for which additional services were performed by Holley?

The jury’s answer was “$7,522.50.” We cannot agree that this issue is not supported by evidence as Locus contends. Holley’s uncontroverted testimony is that the fair market value of his services rendered for the six-month period from October 1971 to April 1972 was $1500 per month, and that for the period of April 1972 through August 1972, the value of his services to Locus was $300 per month. This testimony is sufficient evidence to support the jury’s answer to this special issue.

Locus asserts that Holley is not entitled to recovery on his counterclaim for services rendered after September 1971, because the memorandum issued by Locus’s president on April 27, 1971, set forth the exclusive terms of Holley’s employment during Locus’s shutdown of its construction business. The pertinent parts of this agreement prepared by Locus are as follows:

The agreement which we have reached is that I will furnish office space for yourself, rent free, for the guaranty period of the Arbrook and Sherman jobs. That you will handle any guaranty work on all jobs during that period for cost plus ten percent with no charge for your time. This is not to include the subcontractor’s guaranty work. I will continue your salary for three months beginning with final payment on the J & J jobs or July 1, whichever occurs first. You are to be available to work out any problems that might arise on particularly Plainview, but any other jobs that, as of this date, are not complete as far as work, and are not outstanding on our books. [Emphasis added.]

We cannot agree with Locus’s assertion that the agreement covered payment for these services because this agreement specifically excludes subcontractor’s guaranty work. It is unchallenged in the record that the additional services rendered by Holley to Locus were occasioned by the insolvency of the mechanical subcontractor on the Ar-brook job and specifically related to guaranty work of the insolvent subcontractor’s suppliers. It is also undisputed that Holley continued to perform services for Locus on the Arbrook project until the latter part of September 1972, although Holley received his final paycheck from Locus on September 30, 1971. This continued service was approved by Locus.

(3) Reimbursement for Relocation Expenses

Locus argues that the trial court erred in submitting an issue inquiring as to whether Locus agreed to pay Holley’s expenses of relocation after termination of his employment. The jury answered this issue in the affirmative. Locus contends that the written employment contract signed by the parties on May 28, 1966, embodies all terms of the agreement between Holley and Locus pertaining to relocation expenses and, therefore, the trial court should have construed the agreement rather than submitting the issue to the jury. In the alternative, Locus contends that this issue lacks support in the evidence. The agreement provides: “The company will pay your moving expenses to Abilene, and if employment is ceased, will pay moving expenses from Abilene to Dallas.” Locus concludes that pursuant to this agreement the court should have construed the term “moving expenses” to include only freight expenses of $611.50, which was incurred in moving Holley’s furniture from Abilene to Dallas. We cannot agree with Locus’s contention.

If the employment agreement of May 28, 1966 was the only evidence submitted pertaining to Locus’s liability for Holley’s relocation expenses, then it could be argued that a fact question was not presented as to the intention of the party with reference to the term “moving expenses.” We are not, however, confronted with such circumstances. Without objection from Locus, Holley testified that when he moved to Abilene from Dallas to commence employment with Locus, he was reimbursed for moving expenses which included the cost of maintaining two separate residences for three months. Holley further testified that upon termination of his employment, he incurred expenses of approximately $1400 as a result of again having to maintain two separate residences until August 1972, when his family was able to join him in Dallas. In addition to these expenses, Holley incurred freight expenses of $611.50 paid to a moving company for the transportation of his furniture from Abilene to Dallas. We cannot accept Locus’s contention that “moving expenses” as set forth in the 1966 employment agreement means only freight expenses. In ascertaining the intent of the parties as to the meaning of a contract, the best evidence of such intent is the construction placed upon such contract by the acts of the parties. Lone Star Gas Co. v. X-Ray Gas, 139 Tex. 546, 164 S.W.2d 504, 508 (1942); United Founders Life Insurance Co. v. Carey, 363 S.W.2d 236, 243 (1962). Since Locus previously reimbursed Holley for moving expenses in excess of only freight costs under the May 1966 employment contract, it is reasonable to conclude that the parties intended the term “moving expenses” to entail the cost of maintaining two residences while Holley was returning to Dallas. The parties’ prior acts indicate an interpretation was placed on the term “moving expenses” different from that now asserted by Locus. A fact question was, indeed, presented necessitating resolution by the jury.

Locus argues that the special issue with reference to relocation expenses should not have been submitted because “an affirmative answer would be against the overwhelming weight and preponderance of the evidence.” This argument is without merit. The contention that an issue should not have been submitted because of the insufficiency of the evidence is subject to only one construction — that there is no evidence to warrant submission of the issue. Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965). As we have previously observed, evidence was presented which warranted submission of the issue.

Locus further objects to the use of the words “relocation expenses” rather than “moving expenses” in submission of the special issue. This point was waived by Locus because it failed to object to the use of this term. Texas Rules of Civil Procedure, rule 272.

We, therefore, conclude that Locus’s contentions are without merit. The judgment of the trial court is accordingly affirmed.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Chief Justice.

license: Public Domain

text:
    Hardy JOHNSON, Appellant, v. Martha LANE, Appellee.
    No. 18579.
    Court of Civil Appeals of Texas, Dallas.
    May 22, 1975.

      John L. MeCraw, Jr., McKinney, for appellant.
    Nick Warden, McKinney, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Martha Lane brought this action against George Johnson and Hardy Johnson seeking damages for conversion of personal property. Both defendants answered asserting that the property in question had been abandoned. Both defendants filed a cross-action seeking to recover delinquent rentals on certain leased premises as well as damages for repairs to such property. Following a nonjury trial, the court rendered judgment for Martha Lane against Hardy Johnson for the sum of $750 and denied any recovery in favor of George or Hardy Johnson against Martha Lane. From this judgment only Hardy Johnson appeals. We affirm.

In October 1972, Martha Lane rented a house in Melissa, Collin County, Texas, on a month-to-month basis from George Johnson, the owner of the premises. Hardy Johnson, son of the owner George Johnson, acted as agent in the matter of collecting rentals and taking care of the property generally. Appellee Lane continued to reside in the house until the month of April 1973, at which time she left Texas and went to the state of Michigan. Appellee testified that, at the time she left Texas, it was her intention to be gone temporarily and that she orally agreed with Hardy Johnson that while she was away, one Don Faulkner would pay the rent and care for the premises. Thereafter, in the month of May 1973, Faulkner vacated the premises without making the rental payments and without giving notice to either appellant or appellee. About a month later, Hardy Johnson removed all of appellee’s possessions, consisting of furniture and other personal items, from the house and stored a portion of the property in a building near his place of business. When Martha Lane returned to Texas, she discovered the house had been rented to another party and also found that appellant Hardy Johnson had been using various items of her property in connection with his business. She requested the return of her property but was informed by Hardy Johnson that she could not receive same unless she paid him the sum of $210. Ap-pellee later tendered that amount to appellant, who refused to accept that payment and instead demanded $290, stating as his sole reason for the increase that appellee had consulted an attorney.

The trial court, in its findings of fact and conclusions of law, found that Hardy Johnson had moved certain items of furniture, appliances and personal property belonging to appellee Lane and had used such items in his business and for his own use; that such use was without the consent or knowledge of George Johnson; that Hardy Johnson demanded $210 from Mrs. Lane as a condition for the return of her property; that when said sum was tendered to Hardy Johnson, he refused to accept such sum and demanded an additional $80; he also demanded the retention of a recliner chair which he had been using as a condition precedent to the return of the property; that Hardy Johnson had failed to adequately protect Mrs. Lane’s property against rain and exposure; and that Hardy Johnson’s taking and using the furniture and appliances and also his refusal to return the same upon demand constituted conversion.

Appellant’s primary points of error attack the trial court’s findings of fact and conclusions of law which support appel-lee’s cause of action for conversion. In our review of these points, we apply the well-settled rule that the trial court’s findings carry the same weight as jury’s findings by which we are bound, if such findings are supported by sufficient probative evidence. In a nonjury case, the trial court is the judge of the credibility of the witnesses and the weight to be accorded their testimony. Where there is evidence of probative force to support the findings of the judgment of the trial court, such findings will not be disturbed even though the evidence is conflicting and the reviewing court might have concluded otherwise. Corn v. First Texas Joint Stock Land Bank, 131 S.W.2d 752 (Tex.Civ.App.—Fort Worth 1939, writ ref’d); Frazier v. Williams, 359 S.W.2d 213 (Tex.Civ.App.—Eastland 1962, no writ); Patton v. Rogers, 417 S.W.2d 470, 472 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.), and Dearmin v. Smallwood, 520 S.W.2d 602 (Tex.Civ.App.—Beaumont 1975, no writ).

A review of this record in the light of these authorities convinces us that there is adequate probative evidence to support each of the findings of the trial court. The landlord, George Johnson, acting through his agent Hardy Johnson, took possession of appellee’s personal property for unpaid rent. We need not determine whether he had the right to hold the property for the rent. Even assuming a valid initial taking of the property by the landlord for that purpose, it is well settled that there is a corresponding obligation on the part of the landlord to safely care for such property and keep the same for the benefit of the owner until the rental demanded has been paid. Alsbury v. Linville, 214 S.W. 492 (Tex.Civ.App.—San Antonio 1919, writ dism’d); Taack v. Underwood, 266 S.W. 618, 619 (Tex.Civ.App.—Amarillo 1924, no writ), and Panhandle & S. F. Ry. v. Hogan, 388 S.W.2d 320, 322 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.). After the original taking in this case, there is evidence that Hardy Johnson, acting without the knowledge or consent of his father, George Johnson, took some of the property owned by appellee and used the same for his own benefit in his business premises and also failed to adequately protect said property against rain and exposure. The evidence is undisputed that when appellee returned to Collin County and discovered the status of her property, she tendered to appellant George Johnson the sum of money demanded by him as a condition precedent to delivering the property back to her. Although duly tendered, the amount was refused, and an additional amount was requested, solely because appellee had consulted an attorney in the interim. It is evident to us that the record supports appellee’s contention of conversion by Hardy Johnson and the trial court’s findings in support thereof. Conversion is defined as any act or dominion wrongfully asserted over another’s personal property in denial of the owner’s rights or inconsistent with such rights. Ford Motor Credit Co. v. Garcia, 504 S.W.2d 931 (Tex.Civ.App.—San Antonio 1974, no writ). Appellant admitted that he used a portion of appellee’s furniture in the office of his business. When he refused to accept the amount of money originally demanded and retained possession of the remainder of the personal property, such clearly constituted conversion. Jordan v. Broad, 170 S.W.2d 655, 656 (Tex.Civ.App.—Amarillo 1943, no writ); Cox v. Rhodes, 233 S.W.2d 924, 929 (Tex.Civ.App.—El Paso 1950, no writ); Ellis Oil Co. v. Adams, 109 S.W.2d 1026, 1028 (Tex.Civ.App.—Beaumont 1937, writ dism’d). Where there is a demand and refusal, it makes no difference that possession was originally acquired by lawful means. Norris v. Bovina Feeders, Inc., 492 F.2d 502, 506 (5th Cir. 1974); Hull v. Freedman, 383 S.W.2d 236, 238 (Tex.Civ.App.—Fort Worth 1964, writ ref’d n. r. e.). Appellant’s detention of appellee’s property under the facts developed in this case is necessarily inconsistent with appellee’s right of ownership and constitutes conversion. The trial court was correct in rendering judgment for ap-pellees against Hardy Johnson for the damages based upon such conversion.

In the third and last point, appellant says the court erred in not rendering judgment in favor of his father George Johnson for his rent and damages. We overrule this point. George Johnson, the owner-landlord who brought the cross-action, does not appeal from the judgment denying him relief. Moreover, the record demonstrates that both George and Hardy Johnson failed to meet their burden of proving the amount of the rent and alleged damages sought.

We have carefully examined all of appellant’s points of error and find the same to be without merit, and they are, therefore, overruled.

The judgment of the trial court is affirmed.

      . Art. 5238a, Vernon’s Tex.Rev.Civ.Stat. Ann., in effect at times material herein authorized the operator of any residential house to have a lien upon all baggage and all other property found within the tenant’s dwelling for all rents due and unpaid by the tenant thereof, with certain exceptions such as wearing apparel, tools and apparatus and books belonging to any trade or profession, family library and all family portraits and pictures, household furniture to the extent of one couch, two living room chairs, dining table and chairs, all beds and bedding, and all kitchen furniture and utensils. It was held unconstitutional, as being contrary to the due process clause of the United States Constitution, in Hall v. Garson, 468 F.2d 845 (5th Cir. 1972). The Legislature repealed this act in 1973 and enacted the present article 5236d, Texas Revised Civil Statutes, effective September 1, 1973.


text:
    Ex parte Harvey Allen HART.
    No. 18662.
    Court of Civil Appeals of Texas, Dallas.
    May 27, 1975.
    Robert I. Knopf, Dallas, for appellant.
    Weldon Parkhill, Grand Prairie, for ap-pellee.
   CLAUDE WILLIAMS, Chief Justice.

In this original proceeding brought under Vernon’s Tex.Rev.Civ.Stat.Ann. art. 1824a (Vernon Supp.1974), relator Harvey Allen Hart presents an application for a writ of habeas corpus. This is the second time this matter has been considered by this court. See Ex parte Hart, 520 S.W.2d 952 (Tex.Civ.App.—Dallas 1975 no writ). In that case, we ordered relator’s discharge based upon the absence of a record in the trial court and the ambiguity of the commitment order.

Subsequent to our decision in the first case, Margaret Louise Hart, relator’s former wife, filed a verified motion to adjudge Harvey Allen Hart to be in contempt of court for failure to observe and obey the order of the Domestic Relations Court Number Two entered on June 26, 1974. After a hearing, the trial court ordered relator confined to jail. We granted relator’s application for habeas corpus and released him upon the making of bond pending hearing on the writ.

At the hearing in the domestic relations court on April 14, 1975, testimony was introduced and is properly brought forward to us in a statement of facts. That record reveals that relator Hart testified that he was financially unable to comply with the order of the Domestic Relations Court Number Two and that such inability was involuntary on his part.

Relator testified that he made child support payments of $60 per week beginning June 21, 1974, and such payments were made to the former wife until October 1974, when relator incurred an injury in the course of his employment which required hospitalization and surgery. This fact was made known to the former wife and her attorney who were also advised that the relator would be unable to pay his payments for about eight weeks while he was confined in the hospital. On December 30, 1974, relator returned to work and on January 10, 1975, he received his first paycheck and began making weekly payments of $60 per week which have continued to date. On February 7, 1975, relator was arrested by the Dallas County Sheriff and taken to jail where he remained in custody until released by this court. On February 25, 1975, relator’s former wife filed another motion for contempt based upon relator’s failure to make child support payments during his hospitalization and recuperation. At the hearing on April 14, 1975, relator testified that during the period of hospitalization and recuperation, he was unable to work anywhere else and was unable to use his truck to earn money. He testified he was unable to borrow from relatives or from lending institutions such as banks or credit unions. He said he was unable to sell anything in order to pay the required child support and that he had paid no attorney’s fees.

Our Supreme Court in Ex parte Gonzales, 414 S.W.2d 656 (Tex.1967), said that inability to comply with an order requiring the payment of money, resulting from poverty, insolvency, or other cause not attributable to the fault of the party charged, will under ordinary circumstances be received as valid excuse for the consequences of contempt. The courts have consistently held that if relator conclusively proves that he was unable to make the support payments, such fact renders the commitment order void and relator must be discharged. Ex parte Kollenborn, 154 Tex. 223, 276 S.W.2d 251 (1955); Ex parte Padfield, 154 Tex. 253, 276 S.W.2d 247 (1955). Our review of this record convinces us that relator Hart has satisfied the requirements set forth by the Supreme Court and has conclusively established his inability, without fault on his part, to make the required payments set forth in the commitment order. His testimony supporting his contention is clear and positive and there were no circumstances in evidence tending to discredit or impeach his testimony. Ex parte Williams, 469 S.W.2d 449 (Tex.Civ.App.—Beaumont 1971 no writ). Accordingly, we grant relator’s application for writ of habe-as corpus and order him discharged from custody.


author: HALL, Justice.

text:
    Donald F. NOBLES et al., Appellants, v. Charles MARCUS et al., Appellees.
    No. 5387.
    Court of Civil Appeals of Texas, Waco.
    May 29, 1975.
    Rehearing Denied June 19, 1975.
    Fred E. Davis, Austin, for appellants.
    Wynne, Jaffe & Tinsley, Dallas, for Chas. Marcus, Macoa, Inc., and South Tex. Corp.
    Green, Gilmore, Crutcher, Rothpletz & Burke, John Plath Green, Dallas, for Robert S. Folsom, Claude R. McClennahan, Jr., David M. Sherer & Hexter-Fair Title Co.
   HALL, Justice.

This is a suit to set aside a deed and foreclose a judgment lien. A take-nothing summary judgment was rendered against the plaintiffs. We affirm.

The record shows the following facts to be without dispute: On June 14, 1971, Charles Marcus executed a warranty deed on behalf of Macoa, Inc., a corporation, conveying a tract of land in Dallas County to Robert S. Folsom, Claude R. McClenna-han, Jr., and David M. Sherer. Marcus signed and acknowledged the deed as vice-president of Macoa. The deed, and related instruments, were recorded in the proper county records the day after execution. On October 9, 1972, a suit was filed against Macoa by those who are also plaintiffs in this case to recover for personal services rendered. Macoa failed to answer that suit and default judgment was rendered therein for the plaintiffs in the total amount of $80,000, on November 15, 1972.

In the case at bar, the plaintiffs seek to set aside the Macoa deed executed by Marcus on June 14, 1971, and to affix and foreclose a judgment lien on the property conveyed in the deed, based upon the judgment dated November 15, 1972, and for alternative relief. This suit was filed by the plaintiffs on January 18, 1973, against Marcus, Folsom, McClennahan, Sherer and Macoa, and others who were only incidentally involved in the transaction.

The plaintiffs have never claimed that the deed was executed to defraud them, or to hinder or delay the collection of their judgment; and the record contains no evidence of such facts. Rather, the basis pleaded and relied upon by the plaintiffs for setting aside the deed is that it was executed in fraud of Macoa’s rights. Specifically, they contended in the trial court, as they do here, that the deed is a forgery and that, in any event, Marcus was not authorized by Macoa to execute it.

The defendants answered the plaintiffs’ pleadings with sundry pleas, including assertions of ratification of the deed by Ma-coa.

The plaintiffs attack the summary judgment in two points of error, contending (1) that the record establishes as a matter of law that the deed is a forgery; and (2) that if the forgery is not conclusively shown, then material questions of fact exist in the record (a) as to whether Marcus had authority to execute the deed on behalf of Macoa, (b) as to whether the defendants knew of the want of authority, and (c) as to whether the deed has been ratified by Ma-coa. They do not assert any procedural irregularity.

“The law is settled in Texas that a creditor, though he have no specific lien, may maintain an action in equity to vacate a fraudulent conveyance of his debtor’s land.” Eckert v. Wendel, 120 Tex. 618, 40 S.W.2d 796, 797 (1931). However, a creditor may not maintain an action to set aside a deed on the ground that it is a fraud upon the debtor. The ground on which the creditor is allowed to impeach a fraudulent conveyance is that it is a fraud upon his legal rights. Hodges v. Taylor, 57 Tex. 196, 199 (1882); Allen v. Crutcher (Tex.Civ.App.—Fort Worth, 1919, writ ref.), 216 S.W. 236, 238; 26 Tex.Jur.2d 421-423, Fraudulent Conveyances, Sec. 128.

As we have stated, the plaintiffs have neither pleaded nor argued that the conveyance is fraudulent as to them, and there is no evidence that it is. Accordingly, the questions raised by the plaintiffs in their points of error—whether the deed is a forgery, whether Marcus was authorized to execute it, and whether the deed has been ratified by Macoa—are immaterial to the rights of the contesting parties in this case.

Rulings on immaterial matters, if erroneous, are harmless. They will not support the reversal of a judgment. Rule 434, Vernon’s Texas Rules of Civil Procedure.

The judgment is affirmed.


author: BREWSTER, Justice.

text:
    Mary CLAYTON, Appellant, v. Douglas McArthur NEWTON, Appellee.
    No. 17650.
    Court of Civil Appeals of Texas, Fort Worth.
    May 30, 1975.

      Fillmore, Lambert, Farabee & Purtle and Roger Lee, Wichita Falls, for appellant.
    William V. Browning, Wichita Falls, for appellee.
   OPINION

BREWSTER, Justice.

Douglas Newton filed this habeas corpus action in a Wichita County District Court on December 19, 1974, against Mary Clayton, the maternal grandmother of his three children. He sought therein to recover the custody of said children, namely, Tammy Kay Newton, Sandra Lynn Newton, and Douglas McArthur Newton, Jr., from the grandmother. On January 31, 1975, the trial court rendered judgment in the case and awarded the custody of the three children to the father, and ordered the grandmother to deliver the children to him. This is an appeal by the grandmother from that decree.

The father, who is the appellee here, did not file a brief in connection with the appeal and neither he nor his attorney appeared before this Court for oral argument at the time the case was submitted. Under these circumstances, this Court will accept as correct the statement contained in appellant’s brief as to the facts of the case and the record. Rule 419, Texas Rules of Civil Procedure; and Crawford v. Modos, 465 S.W.2d 220 (Beaumont, Tex.Civ.App., 1971, writ dism., which cites many cases on this point).

The father and the mother of the children were divorced by a district court in Tulsa County, Oklahoma, on May 10, 1971. In that decree the custody of the children was awarded to their mother, Youla Kay Newton. Thereafter, the mother and father of the children filed in that same court a joint application asking that the custody of the children be awarded to their maternal grandparents, and that Oklahoma court did on September 7, 1971, grant that joint application and awarded the custody of the children to the appellant here, Mary Clayton, and to her husband, Riley Ardell Clayton, they being the maternal grandparents. At that time the Claytons lived together in Tulsa, Oklahoma.

In May, 1974, Mary Clayton moved with the children from Oklahoma to Wichita Falls, Texas, and she and the children have all resided in Wichita Falls, Texas, continuously since. Mary Clayton has had the actual custody of the children in Texas since May, 1974.

In October, 1974, the appellee, Douglas Newton, filed in the Tulsa County, Oklahoma district court (the divorce court) a motion to modify the prior decrees entered in that divorce case relating to custody of the three children and on November 8, 1974, that Oklahoma court did render a default judgment changing the custody of the children from the maternal grandparents to the father, Douglas Newton.

In connection with this last mentioned case Mary Clayton was not served with a citation. She was given actual notice of the hearing by means of a telephone call. An effort was also made to give her notice of the hearing by an attorney mailing a copy of such a notice addressed to her at an address in Tulsa, Oklahoma, in October of 1974. This was the only effort shown by the record to give Mary Clayton notice of that suit. In October of 1974 when the notice was mailed to the Oklahoma address, Mary Clayton was a resident of Texas and had been since the previous May.

On December 19, 1974, appellee Newton then filed this habeas corpus action in the 30th District Court of Wichita County, Texas, and recited as grounds therefor the default decree last mentioned above by the Oklahoma Court, which order placed custody of the children in him. On January 31, 1975, the court rendered judgment granting the writ of habeas corpus and ordering Mrs. Clayton to deliver to the father the custody of the three children.

The case was tried in the trial court on the theory that the law involved in deciding the case was the same in Oklahoma as it is in Texas.

The following is from Harris v. Harris, 403 S.W.2d 445 (Houston, Tex.Civ.App., 1966, ref., n. r. e.): “The law of the state where the judgment is rendered governs in determining the validity, finality and effect of the judgment. However, our courts may not take judicial notice of the laws of another state in the absence of a request to do so. Rule 184a, T.R.C.P. Such laws are facts to be proven and in the absence of proof of such laws by judicial knowledge properly requested or proof otherwise, we presume them to be the same as the laws of Texas. Commonwealth of Mass. v. Davis, 140 Tex. 398, 168 S.W.2d 216 .. . .”

The trial court’s determination to apply Texas law instead of Oklahoma law was proper in this case because of a lack of a preliminary motion requesting judicial notice of Oklahoma law and notice reference thereto. Rule 184a, T.R.C.P.

The trial court restricted the evidence at the trial of this case to proof by certified copies of the entire proceedings had before the Oklahoma court, and to a stipulation that a telephone call was made to Mary Clayton by which she was given actual notice of the date of the hearing in the Oklahoma case.

The judgment appealed from recites the following: “The Court . . . finds that the Order of the District Court of Tulsa County, Oklahoma, dated November 8,1974 . is a valid and subsisting order of a sister state, entitled to full faith and credit and enforcement under the laws of this state.”

We reverse and render.

Appellant’s first point of error is that the trial court erred in giving full faith and credit to the Oklahoma default judgment that is involved here because appellant was never served with process or formal notice of the Oklahoma proceedings.

We sustain this point.

Section 14.08(b) of Title 2 of the Texas Family Code provides that all parties to a suit to modify a former order relating to custody of a child are entitled to notice thereof and to a hearing.

In his petition filed in the Oklahoma case in which case he was awarded the default custody judgment in question the appellee, Newton, had alleged that the maternal grandparents had separated and that Mrs. Clayton, the appellant here, had moved with the children to live in Wichita Falls, Texas. Mrs. Clayton was in Texas when that suit was filed.

Rule 108, T.R.C.P., prescribes the form of notice that must be served upon a defendant in all cases where notice is required where that defendant is either absent from the state or is a nonresident of the state. The form of the notice is the same in either case. The rule provides: “ . . . the form of notice to such defendant of the institution of the suit shall be the same as prescribed for citation to a resident defendant . . . .” See on this Scucchi v. Woodruff, 503 S.W.2d 356 (Fort Worth, Tex.Civ.App., 1973, no writ hist.).

Mrs. Clayton was not served with a citation in the Oklahoma case wherein the default judgment was rendered against her.

It was admitted that a telephone call was made to Mrs. Clayton advising her of the fact that Newton had filed the custody case against her in Oklahoma and of the date of the trial thereof.

The notice given to Mrs. Clayton by this telephone call was not legally sufficient to put her in court.

If a state statute or rule of court prescribes the method by which notice must be given in a particular instance (as does Rule 108, T.R.C.P., here), and if it prescribes the form of the notice that must be given in such instance, then the method prescribed by the statute or rule for giving notice is generally held to be exclusive and the form prescribed must be followed with reasonable strictness. See Scucchi v. Woodruff, supra, and cases therein cited on this point.

In this case to effectively bring Mrs. Clayton into court it was necessary that Rule 108, T.R.C.P., be complied with in giving her notice of the filing of the suit. Any actual knowledge that she may have had about the case or the hearing did not put her into court. 34 Tex.Jur.2d 211, Judgments, Sec. 277; Investors Diversified Services, Inc. v. Bruner, 366 S.W.2d 810 (Houston, Tex.Civ.App., 1963, ref., n. r. e.); Gutierrez v. Cuellar, 236 S.W. 497 (San Antonio, Tex.Civ.App., 1922, no writ hist.); and Scucchi v. Woodruff, supra.

The judgment by default by the Oklahoma court that the trial court in this case gave full faith and credit to and relied on in rendering the judgment being appealed from was unauthorized by law in view of the fact that Mrs. Clayton had not been served with citation in the case, had not answered, and had not otherwise appeared in the case. Coker v. Logan, 101 S.W.2d 284 (Amarillo, Tex.Civ.App., 1937, writ ref.); and many cases cited in 34 Tex.Jur.2d 207, Judgments, Sec. 277.

The trial court erred for the reasons stated in giving full faith and credit to the Oklahoma judgment that was the basis for the rendition of the judgment here being appealed.

Appellant’s second point of error is that the trial court erred in giving full faith and credit to the Oklahoma decree and in granting the writ of habeas corpus based thereon because the Oklahoma court did not have authority to exercise extra territorial jurisdiction over children who were at the time living in Texas with a person lawfully having cutody of them, and who was also a resident of Texas.

We sustain this point.

The Oklahoma court did not have jurisdiction to render the November 8, 1974, decree awarding cutody of the children involved here to their father, the appellee, because the children, both at the time that custody suit was filed and at the time the judgment therein was rendered, were not present in Oklahoma and were not domiciled in Oklahoma. On those material dates the children were residents of and were present in Texas. Ex Parte Birmingham, 150 Tex. 595, 244 S.W.2d 977 (1952).

In addition to what we have just said, at the time the appellee filed his suit for custody in Oklahoma against the maternal grandmother, Mrs. Clayton, she was the legal custodian of said children under a prior decree of that same Oklahoma court. At the time that custody suit was filed against her by Mr. Newton, and at the time judgment was rendered in that Oklahoma case taking custody from her and awarding it to Mr. Newton, Mrs. Clayton was not a resident of Oklahoma, she was not present in that state, and had not been served with a citation in that Oklahoma case, and had not entered an appearance therein. Since May, 1974, she and the children had all been residents of Texas and present in that state.

The Oklahoma court did not under these circumstances have in personam jurisdiction over appellant, Mary Clayton, at the time it rendered the decree taking custody of the children from her and awarding such custody to the appellee, father, and for that reason this decree was not entitled to full faith and credit. May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1952).

Under the facts of this case, for the reasons above stated, the Oklahoma decree that the trial court gave full faith and credit to, and which was the basis for the decree being appealed from was void. Ex Parte Birmingham, supra.

Appellant’s third point is that the trial court erred in not conducting a hearing or admitting any evidence bearing upon the best interest of the children, when the best interest of the children is paramount in a habeas corpus proceeding involving custody of a child.

We overrule the point.

The record before us simply shows that Mrs. Clayton offered evidence bearing on the fitness of the respective parties to have custody and bearing on the question of what would be for the best interests of the children. The record is not made to show what such evidence was.

The complaint here presented is about the court’s action in excluding evidence. The law is settled that an objection to the exclusion of evidence will not be considered on appeal if the record does not show what the excluded evidence would have been. That is the case here. A “spotted dog” case holding as we hold on this point is Shaver v. Shaver, 478 S.W.2d 871 (Waco, Tex.Civ.App., 1972, ref., n. r. e.).

Under these circumstances it is not necessary for us to go into the question of whether or not evidence as to what is for the best interests of the children is still admissible in a case such as the one before us in view of the provisions of Art. 14.10, Title 2, of the Texas Family Code.

We have considered the question of whether we should remand or render judgment in the case.

A reading of appellee’s petition shows that he bases his action entirely on the rights that he allegedly acquired under the Oklahoma default judgment which we have held to be void. In view of that we deem it our duty to here render the judgment against appellee in view of the fact that he acquired no rights of custody under that Oklahoma default judgment.

The judgment is reversed and here rendered that the application for writ of habe-as corpus filed by appellee is denied.


author: GUITTARD, Justice.

text:
    ASSOCIATED INDEMNITY COMPANY, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellee.
    No. 18556.
    Court of Civil Appeals of Texas, Dallas.
    May 8, 1975.
    Rehearing Denied May 22, 1975.

      Richard Bernays, Touchstone, Bernays & Johnston, Dallas, for appellant.
    Henry Stollenwerck, Dallas, for appellee.
   GUITTARD, Justice.

Hartford Accident & Indemnity Company, after paying a workmen’s compensation claim, sued Associated Indemnity Company, alleging that the payment was made for Associated’s benefit because the loss was covered by Associated’s policy. Both parties moved for summary judgment. The trial court denied Associated’s motion and granted Hartford’s, and Associated appeals.

The question presented is: May the workmen’s compensation carrier of a contractor supplying temporary labor, after accepting premiums collected by the contractor from its customers, and after paying a claim to an employee injured when working under the direction and control of a customer, recover the amount of such payment from the customer’s regular workmen’s compensation carrier? We answer this question in the negative, and, accordingly, we reverse the trial court’s judgment and render judgment in favor of Associated.

The facts are undisputed. Hartford issued a policy of workmen’s compensation insurance to Greene’s Temporaries, Inc., a contractor engaged in the business of supplying temporary employees to industrial concerns. The injured workman in question was hired by Greene’s, and was assigned temporarily to Frito-Lay Company. At the time of his injury, he was working at Frito’s premises under the direction of Frito’s foreman. The contract between Frito and Greene’s was oral. Frito agreed to pay Greene’s a fixed hourly charge for the workers supplied by Greene’s. Out of this charge, Greene’s agreed to pay all wages and social security and withholding taxes, and to relieve Frito of all expense and paperwork concerning the temporary employees. Greene’s also agreed to furnish workmen’s compensation insurance and to pay the workmen’s compensation insurance premiums. Greene’s paid the employees hourly wages based on the time they were actually at work for Frito. Out of the difference between the hourly charges paid by Frito and the hourly wages paid to the employees, Greene’s paid various expenses, including workmen’s compensation insurance premiums on the policy issued by Hartford. These premiums were measured by the total payroll of Greene’s employees for the time they were working for Greene’s customers. Frito had no expense with respect to the temporary employees other than the hourly charges it paid to Greene’s. Frito’s workmen’s compensation insurance was carried by Associated, and Frito’s payroll, by which its workmen’s compensation premiums were measured, did not include any of the temporary workers supplied by Greene’s. This arrangement was typical of Greene’s operations, and also, apparently, of other labor contractors supplying temporary employees.

The injured workman in question originally made his claim against Associated, but, on receiving letters from Associated and Frito to the effect that he was Greene’s employee, he filed the claim against Hartford. Hartford made no denial of the coverage, and after appeal to the district court from a compensation award, Hartford made a voluntary settlement. This settlement was made in accordance with a general practice of Hartford to pay claims of Greene’s employees for injuries sustained by them while working under the direction and control of Greene’s customers, such as Frito.

After settlement of the workmen’s compensation claim, the claimant filed a tort action against Frito, in which Hartford intervened and asserted its subrogation rights. Hartford also impleaded Associated as a third-party defendant and alleged that Associated owed the compensation which Hartford had paid. The trial court denied all recovery, and on an earlier appeal, this action was affirmed with respect to Frito on the ground that Frito was protected as an employer by workmen’s compensation insurance. Waldroup v. Frito-Lay, Inc., Docket No. 4643 (Tex.Civ.App.—Eastland, August 10, 1973) (unreported). The claim against Associated was remanded, and both parties filed motions for summary judgment, which are before us on this appeal.

Associated contends that Greene’s could properly agree to carry workmen’s compensation insurance on temporary employees furnished to Frito because under the circumstances of this case, such employees must be considered employees of both Greene’s and Frito. In support of this dual-employment theory, Associated cites cases from other states involving tort claims of temporary workers against their temporary employers. In such cases the temporary employers have been held to be protected by workmen’s compensation statutes. Renfroe v. Higgins Rack Coating & Manufacturing Co., 17 Mich.App. 259, 169 N.W.2d 326, 329 (1969); St. Claire v. Minnesota Harbor Service, Inc., 211 F.Supp. 521, 526 (D.C.Minn.1962).

Hartford takes the position that this dual-employment theory is inconsistent with Texas decisions. It points out that Texas affords a temporary employer the protection of the Workmen’s Compensation Law, if he is a subscriber, by applying instead the borrowed-servant doctrine. According to this doctrine, the injured workman is held to be the employee of the employer who had the right of control over the details of the work at the time of the injury. Process Engineering Co. v. Rosson, 287 S.W.2d 511, 514 (Tex.Civ.App.—Galveston 1956, no writ); cf. Sanchez v. Leggett, 463 S.W.2d 517, 520 (Tex.Civ.App.—Corpus Christi), writ ref’d n. r. e. per curiam, 468 S.W.2d 63 (Tex.1971), on subsequent appeal, 489 S.W.2d 383, 387 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.). The employer who had that right of control is protected from common-law liability, and his workmen’s compensation insurer is liable for statutory benefits. Insurors Indemnity & Insurance Co. v. Pridgen, 148 Tex. 219, 223 S.W.2d 217, 221 (1949). Accordingly, even though an injured workman was carried on the payroll of a subscriber, and even though that subscriber may have paid insurance premiums on the workman’s wages, he is held not to be the employee of the subscriber for the purposes of the Workmen’s Compensation Act if he was temporarily subject to the right of control of another employer at the time of the injury. United States Fire Insurance Co. v. Warden, 471 S.W.2d 425, 428 (Tex.Civ.App.—Eastland 1971, writ ref’d n. r. e.); Employers Casualty Co. v. American Employers Insurance Co., 397 S.W.2d 292 (Tex.Civ. App.—Amarillo 1965, writ ref’d n. r. e.).

None of the Texas cases decide the question of whether a labor contractor supplying temporary employees may make a valid contract with its customer that it will carry workmen’s compensation insurance on the employees while they are working under the control of the customer. Under the dual-employment theory advanced by Associated, such a contract would be valid and effective, and, consequently, the workmen’s compensation policy issued to the contractor would provide coverage to the employees hired by the contractor, even though they are entirely subject to the control of the customer concerning the details of their work. On the other hand, strict application of the right-of-control test, as advocated by Hartford, would result in a holding that such a contract is legally impermissible because it is contrary to the public policy of this state as declared by the decisions of Texas courts under the Workmen’s Compensation Act.

We do not decide this question because even if we reject the dual-employment theory and apply the right-of-control test, no right to a subrogation recovery has been established. Subrogation is a remedy which courts of equity employ to prevent unjust enrichment. It is said to be based on principles of “natural justice” and is not applied if it would work injustice. Vasser v. City of Liberty, 50 Tex.Civ.App. 111, 110 S.W. 119, 121 (Galveston 1908, no writ). Neither is it employed to relieve a party of the consequences of wrongdoing in which he participated. German Bank v. United States, 148 U.S. 573, 581, 13 S.Ct. 702, 37 L.Ed. 564 (1892); Padgett v. Young County, 204 S.W. 1046, 1054 (Tex.Civ.App.—Fort Worth 1918, writ dism’d); People v. Metropolitan Casualty Insurance Co., 339 Ill.App. 514, 90 N.E.2d 565, 567 (1950).

The subrogation recovery sought is not supported by any showing of unjust enrichment. If Hartford is correct in its contention that the arrangement between Greene’s and its customers was legally impermissible, Hartford has had the benefit of that arrangement to the extent of its receipt of premiums which Greene’s included in the charges to its customers. Since these premiums were measured by the payroll of the temporary employees while working for Greene’s customers, they should have been paid to Associated and other insurers if, as Hartford now contends, their policies actually covered the risks. Out of these premiums Hartford paid claims, including the claim in question. Having received the benefit of the arrangement, Hartford should not, in equity and good conscience, be permitted to shift its burden to Associated, to whom in this instance Hartford admits that the premiums were rightfully due. Such a recovery would produce rather than prevent unjust enrichment.

Moreover, Hartford is not entitled to recover a payment made pursuant to an arrangement which it now acknowledges to be legally impermissible. If that arrangement was invalid, the facts are analogous to an executed illegal transaction. In such cases courts ordinarily do not lend their aid, but leave the parties as they find them. Stone v. Sterling Mutual Life Insurance Co., 127 S.W.2d 345, 347 (Tex.Civ.App.Galveston 1939, no writ); and see Morrison v. City of Fort Worth, 138 Tex. 10, 155 S.W.2d 908, 909 (1941). Consequently, we hold that the trial court erred in granting the remedy of equitable subrogation.

Hartford cannot avoid this result by pleading ignorance. It is charged with knowledge of the facts concerning coverage under its policy. See Southern Underwriters v. Jones, 125 S.W.2d 393, 395 (Tex.Civ.App.—Beaumont 1939, writ dism’d jdgmt. cor.). It had access to the relevant information by virtue of its statutory right of free access to its policyholder’s premises for the purpose of making and enforcing rules for prevention of injuries to the workmen covered by its policy. Tex.Ins.Code Ann. art. 5.76 (Vernon 1963). Had it exercised that right, it would have learned, if it did not already know, that none of the work of the employees by whose wages its premiums were measured was actually done under the direction and control of its policyholder, but that all of such work was done under the direction and control of the policyholder’s customers. Thus it would have discovered that it was accepting premiums for risks which, it now asserts, were not covered by its policy. A reasonable inquiry would have disclosed further that the policyholder normally dealt with customers on the basis of an agreement to provide workmen’s compensation insurance on the temporary employees supplied, that the policy in question was obtained for that purpose, and that the charges paid by the customers included amounts to cover the premiums on that policy. With this information readily accessible, Hartford must be treated as a participant in the operations of its policyholder.

We recognize decisions holding that if one insurer pays a loss which it later discovers to be within the coverage of another insurer’s policy rather than its own, receipt of premiums is not in itself sufficient to defeat equitable subrogation. See Employers Casualty Co. v. American Employers Insurance Co., 397 S.W.2d 292, 296 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.); Arrow Coach Lines v. Pennsylvania Casualty Co., 234 S.W.2d 883, 888 (Tex.Civ.App.—Austin 1950, writ ref’d n. r. e.). That rule, however, has not been applied in circumstances comparable to this case. Here the receipt of premiums for a risk which Hartford now contends that its policy did not cover was not fortuitous or unintended, but was an integral part of the policyholder’s method of doing business, of which Hartford must be charged with notice, for the reasons stated.

Since the facts are fully developed and are undisputed, our duty is to render the judgment which the trial court should have rendered. Texas Rules of Civil Procedure, rule 434. Accordingly, we reverse the judgment for Hartford and render judgment for Associated, sustaining its motion for summary judgment and denying all recovery by Hartford against Associated.

Reversed and rendered.


text:
    Ex parte Bobby Joe STROOPE.
    No. 18667.
    Court of Civil Appeals of Texas, Dallas.
    May 15, 1975.
    Cleatus M. Phelan, McKinney, for appellant.
    Robert L. Scott, Morgan & Crouch, Greenville, for appellee.
   GUITTARD, Justice.

Relator Bobby Joe Stroope has applied to us for a writ of habeas corpus, alleging that he has been illegally restrained of his liberty by the Sheriff of Hunt County under a void order of the District Court of that county holding relator in contempt for failure to 'make child support payments. We granted bail pending a hearing in this court, and after the hearing we granted the writ and ordered relator released from custody. We now state the reasons for our decision.

We hold that relator is not in contempt of the order of the District Court of Hunt County because he acted in accordance with a later order of the Juvenile Court of Dallas County in a proceeding instituted by respondent Connie Jean Hopkins, his former wife.

The earlier order, which relator is alleged to have violated, is contained in a divorce decree of the District Court of Hunt County dated July 20, 1971, which requires relator to pay to the clerk of that court three hundred dollars per month for the support of his four children. On October 8, 1973, respondent filed in the District Court of Hunt County a petition to enforce the support order, under the Uniform Reciprocal Enforcement of Support Act, Tex.Laws 1965, ch. 679, at 1561, as amended, Tex. Laws 1969, ch. 553, § 1, at 1698, formerly known as Tex.Rev.Civ.Stat.Ann. art. 2328b-4. The petition alleges that relator was then a resident of Dallas County. In accordance with § 31 of former article 2328b— 4, the papers were transmitted to the Juvenile Court of Dallas County, and the district attorney of Dallas County undertook the prosecution of the action. On December 21, 1973, the Juvenile Court signed an “agreed judgment,” which was also signed by an assistant district attorney and by relator and his counsel. The material provisions of this order are as follows:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the said Defendant pay into the registry of the Court the sum of $150.00 per month, $15.00 of which shall apply on arrearage of $1,800.00 until paid in full, Case to be reviewed on January 2,1975, payments to begin on the 1st day of December, 1973, and to be made until further orders of this Court, said sum to be paid by cashier’s check or money order and mailed to the Dallas County Child Support Division, P.O. Box 5530, Dallas, Texas 75202, to be made payable to CONNIE JEAN HOPKINS, to be forwarded for the use and benefit of the dependents) listed in the petition to whom Defendant owes a duty of support.

Relator alleges under oath that he has fully complied with this order, and respondent does not dispute this allegation.

The present contempt action arises from a motion filed by respondent in the District Court of Hunt County on February 12, 1975. The motion alleged relator’s failure to make the payments as ordered by the divorce decree of July 1971. After a hearing on April 11, 1975, the court found that the order of July 1971 was still in full force and effect, that relator, although able to comply with that order, had failed to do so and was in arrears in the amount of $5,100. The court further found that by reason of this “wilful disobedience” relator was in contempt of the court. Accordingly, the court fixed his punishment at confinement for thirty days and thereafter until relator should purge himself by paying the sum of $5,100.

Relator contends that this order is void because the child-support order in the original decree was modified by the order of the Juvenile Court of Dallas County in December 1973 and that relator is not in contempt because he has fully complied with the latter order. Respondent contends that if the order of the Juvenile Court of Dallas County is construed as reducing the amount of payments ordered by the original divorce decree, it is void and does not excuse relator from full compliance with the original decree.

We need not decide whether the Juvenile Court of Dallas County had authority under former article 2328b-4 to reduce the amount of the child-support payments ordered in the original decree. We conclude that even if it had no such authority, and even if the child support order in the divorce decree remained fully effective, relator was not in contempt. The proceeding in Dallas County was not instituted by him. The order was signed by a judge and was approved by relator’s attorney and by an assistant district attorney representing his former wife. As a layman, relator could not be expected to make his own personal determination of the validity of the order. When cited for contempt in the District Court of Hunt County, he was entitled to defend by showing his compliance with the order of the Juvenile Court. The orders of July 1971 and December 1973, when taken together, created at least an uncertainty concerning the amount of child support relator was required to pay. Consequently, the case is analogous to that of an order which, though originally clear, becomes uncertain with passage of time and change of circumstances. Such an order cannot support punishment for contempt because the person affected must be informed with certainty of what he is ordered to do or refrain from doing so that he will not be misled. Ex parte Slavin, 412 S.W.2d 43 (Tex.1967); Ex parte Thompson, 510 S.W.2d 165, 167 (Tex.Civ.App.—Dallas 1974, no writ).

We do not hold that wilfulness is an essential element of contempt, or that a contemner may escape punishment on the ground that he was mistaken in what was required of him. Neither do we hold that the District Court of Hunt County could not have declared the Dallas County order void and required defendant to pay the difference. We do hold, however, that the Dallas County order created an uncertainty, and that after relator had acted in reliance on that order for more than a year, he could not be imprisoned for contempt without an adjudication of his liability and allowance of a reasonable time thereafter to pay the difference.

A judgment of contempt is void, and the court is without jurisdiction to order punishment, in the absence of some evidence of contemptuous disobedience. Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 830 (1960). For the reasons stated, we hold that no contemptuous disobedience is shown.

Relator discharged.

      . This Act, with some modifications, now appears as chapter 21 of Tex. Family Code Ann. (V.T.C.A.1975).


author: CORNELIUS, Justice.

text:
    Henry Tom RAYSON et al., Appellants, v. Lee Frederick JOHNS et al., Appellees.
    No. 8286.
    Court of Civil Appeals of Texas, Texarkana.
    May 20, 1975.
    Rehearing Denied June 10, 1975.

      Tom Roberts, Dallas, for appellants.
    Long, Strong & Jackson, Carthage, for appellees.
   CORNELIUS, Justice.

The question on this appeal is whether appellants were entitled to a jury determination of the susceptibility of land to partition in kind. Appellees filed this suit against appellants and certain other defendants in trespass to try title and for partition. Appellants filed general denials and cross-actions also asking for partition. Although appellants made proper and timely demand for a jury trial on all issues, the trial judge determined that the land was incapable of a fair division in kind and ordered the property sold and the proceeds divided among the several owners according to their respective interests. Appellants superseded that judgment, and have appealed contending that they were entitled to a jury trial on the question of whether the land was susceptible of division in kind. Appel-lees contend that a jury trial of that issue was not authorized because the determination of such question is for the trial judge alone, and in any event, there was no disputed issue of fact. Appellants’ contention will be sustained.

The right to trial by jury is a valuable right which will be jealously guarded. Tex.Const. art. I, Sec. 15; art. 5, Sec. 10, Vernon’s Ann.St. Although there are some proceedings in which a jury trial is not permitted (See 35 Tex.Jur.2d Jury, Sec. 18 et seq.), partition is not one of them. It is provided in Texas Rules of Civil Procedure rule 777 that “. . the same rules of pleading, practice and evidence which govern in other civil actions shall govern in suits for partition . . . and in whatever posture the question has arisen, the courts have treated disputed issues of fact in partition proceedings as being for the jury when one has been properly demanded. See White v. Smyth, 214 S.W.2d 953 (Tex.Civ.App. San Antonio 1947), aff’d, 147 Tex. 272, 214 S.W.2d 967 (1948); Adams v. Adams, 205 S.W.2d 801 (Tex.Civ.App. Waco 1947, no writ); Redden v. Hickey, 308 S.W.2d 225 (Tex.Civ.App. Waco 1957, writ ref’d n. r. e.).

Partition proceedings are peculiar in that they are conducted in sucessive stages. White v. Mitchell, 60 Tex. 164; Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S.W. 326 (Tex.1907). Apparently the trial court in the case at bar refused appellants a jury determination when requested, intending to avoid two trials and to allow them a jury trial on all issues at a subsequent stage of the proceedings prior to confirming a sale. But the decree which determines the shares of the owners, settles the rights of the parties therein, and orders a division or a sale of land, although often referred to as an interlocutory decree, is a final and ap-pealable order which is conclusive of all matters decreed therein. Castillo v. Farias, 64 S.W.2d 989 (Tex.Civ.App. San Antonio 1933, writ ref’d); Marmion v. Wells, 246 S.W.2d 704 (Tex.Civ.App. San Antonio 1952, writ ref’d). Consequently, the denial of a jury trial at that stage of the proceedings effectively denied appellants a jury trial on those issues at any time.

The right to have property partitioned in kind is a valuable right. Pfeffer v. Meissner, 286 S.W.2d 241 (Tex.Civ.App. Galveston 1955, writ ref’d n. r. e.). The law does not favor compelling an owner to sell his property against his will, but prefers a division in kind when such can be fairly and equitably made. Amerada Petroleum Corporation v. Cheesman, 223 S.W.2d 74 (Tex.Civ.App. San Antonio 1949, writ ref’d). Prior to 1905 the question of whether property was susceptible of division in kind was submitted to the commissioners in the first instance, subject to later determination by the court on consideration of the commissioners’ report. Tieman v. Baker, 63 Tex. 641. Since the 1905 amendment to the statute, that question has been for determination by the court before the commissioners are appointed. Pfeffer v. Meissner, supra. The question is one of fact. Kirk v. Head, 132 S.W.2d 125 (Tex.Civ.App. Fort Worth 1939) aff’d, 137 Tex. 44, 152 S.W.2d 726 (1941); Jones v. Dewbre, 13 S.W.2d 233 (Tex.Civ.App. Austin 1928, no writ); Irons v. Fort Worth Sand & Gravel Company, 284 S.W.2d 215 (Tex.Civ.App. Fort Worth 1955, writ ref’d n. r. e.). Where the evidence on the issue is conflicting or admits of more than one inference, its determination is for the jury or the trier of fact, based upon a preponderance of the evidence. Burton v. Williams, 195 S.W.2d 245 (Tex.Civ.App. 10th Dist. 1946, writ ref’d n. r. e.); Kuehn v. Wishard, 452 S.W.2d 5 (Tex.Civ.App. Houston 14th Dist. 1970, writ ref’d n. r. e.); Robertson v. Robertson, 425 S.W.2d 707 (Tex.Civ.App. Houston 14th Dist. 1968, no writ); Adams v. Adams, supra. Even before the 1905 amendment, when the commissioners passed upon the question in the first instance, it was contemplated that the question was ultimately one of fact for the court or jury, to be determined upon consideration of the commissioners’ report. See opinion of Justice Stayton in Tieman v. Baker, supra.

In the case at bar there was conflicting evidence on the susceptibility of the land to division in kind. Appellees’ survey- or testified that the tract was not susceptible to a fair division in kind. On the other hand, both the appellant Henry Tom Ray-son and the witness Harold Chadwick testified that the land could be equitably divided in kind, and suggested methods of doing so. An issue of fact was therefore raised on the question of the susceptibility of the land to division in kind, and since the appellants properly requested it, they were entitled to a jury determination of the issue.

For the error noted, the judgment of the trial court is reversed and the cause is remanded for a new trial.


author: NYE, Chief Justice.

text:
    PETER SALPETER ENERGY COMPANY, INC., Appellant, v. CRYSTAL OIL COMPANY, d/b/a Crystal Oil and Land Company, Appellee.
    No. 948.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 22, 1975.
    Rehearing Denied June 19, 1975.

      William R. Anderson, Jr., Sorrell, Anderson & Sorrell, Corpus Christi, for appellant.
    William H. Keys, Keys, Russell, Watson & Seaman, Corpus Christi, Claude C. Roberts, Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.
   OPINION

NYE, Chief Justice.

This is a conversion case with the amount of damages being the only question before us. Crystal Oil Company instituted suit against Peter Salpeter Energy Company, Inc. to enjoin them from removing or disposing of Crystal’s oil well equipment located on a non-productive lease, and for the recovery of the reasonable market value of said equipment. A trial was had on the merits before the court without the aid of a jury. The trial court found that Crystal Oil Company had not abandoned its oil well equipment and that Crystal should recover against Salpeter the sum of $39,176.00 for the conversion of the equipment. Peter Salpeter Energy Company has perfected its appeal to this Court.

Mr. B. W. Cox owned a certain tract of land near Mathis, San Patricio County, Texas, which he leased to J. W. Corman on June 17, 1946. Later, by various assignments, Crystal became the owner of the lease in question which it held until September, 1973, when production stopped. Crystal left 11 wells on the Cox lease unplugged, together with the equipment, including all the casing and tubing, on the lease. The lease was terminated in accordance with the terms of the lease.

On April 30, 1974, Cox executed a new oil and gas lease in favor of the appellant Peter Salpeter Energy Company, Inc. on the subject property. Cox assigned to the appellant his interest, “if any”, in all the equipment located in the wells and on the surface. The appellant began using the equipment and during the course of its operations removed approximately 1,200 feet of casing and 3,000 feet of tubing from two of the wells.

Crystal then filed suit against appellant and B. W. Cox, seeking to enjoin them from further removing, disposing of or using the oil well equipment belonging to Crystal and for damages covering the reasonable market value of the part of said oil and gas well equipment already converted and disposed of. Crystal obtained judgment against the appellant in which the trial court made specific findings: that Crystal was in fact the owner of certain personal property, including fixtures and equipment located on said lease (San Patricio County); that Crystal had not abandoned or in any way relinquished its right and title to and ownership of said equipment; that the appellant had wrongfully and without right pulled and removed part of the casing and tubing and sold the same; that the appellant had converted all of said equipment belonging to Crystal to its own use and benefit; that some items and equipment which have not been removed by the appellant cannot now be removed from said wells without destruction of the well bores and without possible waste of the natural resources; that the fair market value of said equipment, including the casing and tubing removed, in the Alice, Texas area (Jim Wells County) is the sum of $59,176.00; and that the reasonable cost of drawing and removing the casing and tubing in said wells and transporting said equipment to or near Alice, Texas, is the sum of $20,000.00, resulting in finding that the fair market value of said equipment in place is the sum of $39,176.00, which sum Crystal is entitled to have and recover from the appellant.

Under ordinary circumstances, compensatory damages for a conversion are represented by the reasonable market value of the property at the place and time of conversion. (In this case, the place was San Patricio County, Texas). Reef v. Hamblen, 47 S.W.2d 875 (Tex.Civ.App.—Dallas 1932, writ ref’d); DeShazo v. Wool Growers Central Storage Co., 139 Tex. 143, 162 S.W.2d 401 (1942); 17 Tex.Jur.2d, Damages §§ 234-236; 14 Tex.Jur.2d, Conversion § 26 (1960). There are, however, some exceptions to the above rule. One exception is that, where there is no market for the goods at the place of conversion, the measure of damages is the value of the property at the time of conversion at the nearest and most available place at which there is a market value, less the necessary costs of transportation thereto. Graves v. Trevino, 386 S.W.2d 831 (Tex.Civ.App.—Houston 1965, writ ref’d n.r.e.); O’Donell v. Preston, 301 S.W.2d 288 (Tex.Civ.App.—Fort Worth 1957, writ ref’d n.r.e.); Myatt v. Elliott, 143 S.W.2d 205 (Tex.Civ.App.—Galveston 1940, writ dism’d judgm. cor.); 14 Tex.Jur.2d, Conversion § 26, p. 30. If such exception does exist, Crystal had the burden of proving the value of the goods at the nearest place where such goods could be bought and sold on the market and by proving and subtracting the cost of transportation to such point. See Graves v. Trevino, supra.

Appellant in perfecting its appeal to this Court raises only one question (in two points of error) that is as to the amount and proof of damages which have been awarded to Crystal by the judgment entered by the trial court. There is no complaint of the trial court’s general or specific findings of fact.

Appellant’s first point of error is that judgment should not have been entered for money damages since Crystal failed to prove the value of the oil field equipment in San Patricio County, Texas. This general contention is based on the alleged failure of plaintiff to sustain its burden of proving the fair market value of the equipment converted by appellant in San Patricio County and the action of the trial court in entering judgment for plaintiff. Such an attack necessarily constitutes in effect a “no evidence” point of error as opposed to a factually “insufficient evidence” point. See Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 456 S.W.2d 724 (Tex.Civ.App.—Beaumont 1970, writ ref’d n.r.e., 462 S.W.2d 276, Tex.Sup.1970). Under a “no evidence” point, it is our duty to view the evidence and the reasonable inferences therefrom most favorably in support of the trial court’s judgment and its findings in support of the judgment, disregarding all evidence and inferences to the contrary. Biggers v. Continental Bus System, 303 S.W.2d 359 (Tex.Sup.1957); Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).

Viewing the evidence in light of the rule herein set out, we find that the equipment in question was all located on the subject lease near Mathis, Texas, in San Patricio County. This was the county in which Crystal had the burden of proving market value unless some exception to that measure existed. Crystal’s principal witness was Fred T. Richards, employed as Production Superintendent for Crystal. The evidence showed that Richards was experienced in buying and selling used oil well drilling equipment in the South Texas area and was qualified as an expert and capable of giving his opinion as to the market value.

In connection with all of the equipment in question (including the casing and tubing which will be considered separately), Richards testified as to his opinion of market value in reference to all of the equipment located on the lease in question. He gave testimony as to the reasonable fair cash market value of each piece of equipment. In each instance, in giving his opinions as to the market value, Richards referred to that equipment on the “B Lease” (which we find was the subject lease and which was indisputably located in San Patricio County). The total value of all of the surface equipment was approximately $22,400.00. We believe such evidence was sufficient to allow the trial court to properly determine damages as it related to this equipment in accordance with the general rule heretofore set out.

We next consider the evidence as to the market value of the tubing and casing. As to the tubing, Richards testified from the well records and from his own personal knowledge that there was approximately 11,564 feet of tubing, owned by Crystal, on the “B Lease” at the time of the conversion. The evidence shows that the tubing had no market value in the well, but that its market value was determined by its value out of the well at the well site. As such, the evidence was that the tubing had a market value of anywhere from $1.50 to $3.25 per foot less what it would cost to get it out on the ground and that was approximately 6½ cents per foot. Such evidence was sufficient to enable the court to determine and ascertain its market value in San Patricio County by taking into account its value on the ground (“at the well site”) less the cost of removing it. The total market value of the tubing in San Patricio County was approximately $23,128.00.

The casing seems to be the center of most of the controversy according to the arguments in appellant’s brief. We have already considered the values of the surface equipment and tubing which according to appellee’s evidence would be valued at approximately $45,538.00, which was the reasonable market value of the equipment and tubing in place in San Patricio County. This in and of itself would have been sufficient to support the trial court’s judgment. However, the trial court in making its award to Crystal, took into consideration the casing. In order for the court to have properly considered it as making up part of the damages, the evidence must have been such that its market value in place in San Patricio County was proved or that the value of the casing was incapable of being ascertained. Richards testified in response to questions concerning the value of the casing in place as follows:

“Q What is the value of the casing in place out there?
A It would depend on how you went about figuring that. I never buy casing in the ground.
Q Does it have a value in the ground?
A Certainly.
Q What is that value?
A I don’t know. Now, I know about how much it costs to plug a well, and then you got to decide whether you want to call that a business expense if the railroad commission requires you to plug the well, or whether you want to call it recovered casing.
Q All the casing in the well?
A Right.
Q Are you testifying to this Court that you don’t know the value of the casing in place.
A I am not going to guess at it. It is considerable, but I’m not going to guess.
Q You don’t know?
A That’s right.” (Emphasis supplied).

Richards’ testimony was that the casing did have a value in the ground but such value was unaseertainable because Richards did not know how to treat the costs in drawing and plugging the wells. Thus, Crystal must admit that there was evidence of a value to the casing in place in San Patricio County. Richards testified that the market value of the casing in Alice, Texas, (in Jim Wells County) was $7.00 per foot, but there was no evidence from any witness as to what the market value of the casing was in San Patricio County.

As previously stated, ordinarily, compensatory damages for a conversion are represented by the reasonable market value at the place and time of conversion. Reef v. Hamblen, supra; DeShazo v. Wool Growers Central Storage Co., supra. The place of conversion of the casing in the case at bar was in San Patricio County, Texas. If there was no market for the goods at the place of conversion (San Patricio County), the measure of damages would have been the value of the property at the time of the conversion at the nearest and most available place at which there is a market value, less the necessary cost of transportation thereto. Myatt v. Elliott, supra; Graves v. Trevino, supra. If such exception is to be applicable, it must be clearly shown that the casing has no market value in San Patricio County and that the nearest place at which there was a market value was in Alice, Texas.

The exception to the general rule is inapplicable as to Crystal’s situation because Crystal failed to establish that the converted casing on the subject lease (in San Patricio County) had no market value. See English v. Nichols, 142 S.W.2d 534 (Tex.Civ.App.—Austin 1940, no writ); Empire Transfer and Storage Co. v. Simon, 249 S.W. 885 (Tex.Civ.App.—Dallas 1923, no writ). Since the evidence showed that the casing did have a market value in San Patricio County, Crystal had the burden of establishing the reasonable market value of such casing in San Patricio County, Texas, which it failed to do.

The trial court in its judgment attempted to follow the general rule as well as the exception and concluded that all of the equipment had a fair market value in Alice, Texas, and the South Texas area in the amount of $59,176.00, and that by deducting the expenses including transportation in the sum of $20,000.00 that the fair market value of all of the equipment (including the casing) was $39,176.00. Such method of calculation was improper. For the error committed, the entire case must be reversed and the cause remanded for a new trial.

Reversed and remanded.