author: NYE, Chief Justice.

text:
    DON’S MARINE, INC., Appellant, v. Jerry HALDEMAN et al., Appellees.
    No. 1198.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 27, 1977.
    Rehearing Denied Nov. 17, 1977.

      Frank D. Masters, San Antonio, D. Dean Patton, Beeville, for appellant.
    Wm. L. Ellis, Ellis, Andrews & Lawrence, Inc., Aransas Pass, Edwin J. Terry, Jr., Austin, Robert W. Dupuy, Wood, Boykin & Wolter, Corpus Christi, for appellees.
   OPINION

NYE, Chief Justice.

This is a commercial law case. Don’s Marine brought suit against Jerry Halde-man to collect $25,000.00 allegedly constituting the sum still due and owing on a 30 foot Sea Ray boat purchased by defendant Haldeman. Don’s Marine also sought to recover some $5,439.18 for additional items added to the boat after the alleged purchase by Haldeman. Haldeman counterclaimed to recover his $10,000.00 down payment on the boat. Trial was to the court without a jury. The court ruled in Halde-man’s favor; entered a take nothing judgment against Don’s Marine; and awarded Haldeman his down payment plus attorney’s fees. Don’s Marine has perfected its appeal to this Court.

On April 23,1975, Haldeman and his wife went to Don’s Marine to look for a fishing boat that could be used for fishing in the Gulf of Mexico. Their attention was directed to a 30 foot Sea Ray. Haldeman returned the next day evidently having decided to purchase the boat if Don’s Marine would meet his demands. The price was negotiated to be $35,000.00 with Haldeman giving Don’s Marine a $5,000.00 cash down payment, plus trading in another boat owned by him for $5,000.00, and executing a draft for $25,000.00 on the First State Bank of Aransas Pass. The sales invoice on the boat was prepared by A1 Bauman, the sales manager for Don’s Marine. The invoice stated: “Boat to handle and perform to customer satisfaction otherwise sale void.” Haldeman, Bauman and one of Don’s Marine’s mechanics then took the boat from Corpus Christi to Haldeman’s dock at “City by the Sea” near Aransas Pass, a distance of approximately 20 miles, where they left the boat. On April 29, 1975, Don’s Marine deposited Haldeman’s draft in its account at Corpus Christi Bank and Trust.

On May 1, 1975, the draft was presented for payment to First State Bank of Aransas Pass. However, Haldeman had left instructions with the Executive Vice President of the bank that the draft was not to be paid until he gave his approval. At the time of presentment no approval had been given by Haldeman. On May 7, 1975, the draft was returned to the Corpus Christi bank. On May 12,1975, the Corpus Christi bank again presented the draft for payment. Again the draft was returned by the Aransas Pass bank. The Corpus Christi bank then returned it to Don’s Marine marked: “dishonored.” During this period the boat had remained in Haldeman’s possession. The certificate of title to the boat was placed in Haldeman’s name by Don’s Marine. However, during this entire period Haldeman testified he was dissatisfied with the boat’s handling and performance. In the meantime, Don’s Marine made at least two attempts to satisfy Haldeman’s complaints.

On May 23, 1975, Haldeman had his attorney contact Don’s Marine’s general manager about returning the boat for his $5,000.00 in cash and his trade-in boat. Haldeman and his attorney both testified that Don’s Marine agreed to the return. On May 27, 1975, Haldeman and his attorney were then informed by Don’s Marine that they would not accept the return of the boat. Haldeman retained possession of the boat and Don’s Marine promised Halde-man that the defects would be repaired and that the boat would be made to meet his specifications. During this period many extras and modifications were added to the boat at the instance of Haldeman. Finally, in early September 1975 Haldeman abandoned attempts to fix the boat after repeated failures by Don’s Marine to correct the problems to his satisfaction. Haldeman simply chained the boat to his pier and took the necessary steps to protect the boat from further deterioration. In early October 1975 Haldeman again tendered the boat to Don’s Marine. It was refused.

On October 14, 1975, Don’s Marine brought suit to recover the balance owed of $25,000.00 plus some $5,434.18 in additional items added to the boat. Haldeman answered and counterclaimed for his down payment and trade-in. In July of 1976, by agreement of the attorneys and without prejudice to anyone’s claims, the boat was returned to Don’s Marine for resale to avoid further waste and depreciation.

Appellant’s only point of error is that the trial court erred in not holding that Haldeman had accepted the boat in question thereby consummating the contract of sale. In appellant’s arguments under its point of error, it is contended that Haldeman failed to properly reject the boat under § 2.601 or § 2.604 of the Tex.Bus. & Comm. Code Ann. (1968) and that the trial court’s judgment to the contrary is against the great weight and preponderance of the evidence. At this point it should be noted that Don’s Marine did not request any findings of fact and conclusions of law and none were filed by the trial court. In this situation this Court must presume that the trial court’s judgment implies all necessary fact findings to support it. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup.1968). It is presumed upon appeal that the trial court found every issue of fact necessary to sustain the judgment when such fact issue is raised by the pleadings and finds support in the evidence. We must affirm the judgment of the trial court unless the appellant (Don’s Marine) can affirmatively show that the undisputed evidence negatives at least one essential element necessary to support the judgment or can show that such findings are against the overwhelming preponderance of the evidence. Johnson v. Buck, 540 S.W.2d 393 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.); City of Center v. Roberts, 469 S.W.2d 27 (Tex.Civ. App.—Tyler 1971, writ ref’d n. r. e.); Giles v. Wiggins, 442 S.W.2d 839 (Tex.Civ.App.—Forth Worth 1969, writ ref’d n. r. e.).

The sections of the Business & Commerce Code involved in this appeal are: Sec. 2.601; Sec. 2.602; Sec. 2.606 and Sec. 2.608. Under these sections of the Business & Commerce Code there are two theories of law that are supported by the evidence and which would sustain the trial court’s judgment. The first theory is that Haldeman never accepted the goods under §§ 2.601, 2.602 and 2.606. Haldeman testified repeatedly that he was never satisfied with the boat and it never met his standards of providing a smooth dry ride. He testified that he had only retained possession of the boat for Don’s Marine and had not accepted it under the contract.

Under § 2.601 Haldeman had the right, upon tender of the boat to reject it for failure to conform to the contract, i. e., to perform to his “satisfaction.” However, this right to reject must have been made within a reasonable time after it had been tendered or delivered to him under § 2.602. Both Haldeman and his attorney testified that the boat was rejected and that they tendered the boat back to Don’s Marine in slightly less than a month after he had taken possession of the boat. The determination under §§ 2.602 and 2.606 of whether or not a buyer has accepted or rejected goods is a fact question. Pacific Products v. Great Western Plywood, 528 S.W.2d 286 (Tex.Civ.App.—Fort Worth 1975, no writ). Therefore the question becomes whether or not Haldeman’s waiting 30 days to reject the boat could constitute an effective timely rejection.

In Bowen v. Young, 507 S.W.2d 600 (Tex. Civ.App.—El Paso 1974, no writ) the court held that possession, occupancy and spending some $581.00 on repairs to a motor home over a one year period constituted treatment inconsistent with the owners’ rights so as to preclude rejection by the buyer. The primary action which precluded rejection in the Bowen case was either dominion over the goods or alteration of the goods by the purchaser. In Pacific Products v. Great Western Plywood, supra, a delay of some 13 days was held not to be unreasonable. The only other Texas case that we could find which has discussed the question of reasonable notice of rejection is Explorers Motor Home Corp. v. Aldridge, 541 S.W.2d 851 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.). The court there held that a delay of two years was unreasonable when coupled with use and alterations of the goods. Whether notice of rejection is reasonable depends on the facts and circumstances of each case.

In the case at bar the record reveals that Haldeman wanted an offshore fishing boat with a quiet, smooth and dry ride. He expressed these specific qualifications to A1 Bauman, Don’s Marine’s salesman. Obviously, in order to see if a boat met these qualifications, it would require several test runs under varying weather conditions. The record reveals that although Haldeman had possession of the boat for approximately thirty days before rejection, he only used the boat for about eight days during this period. Haldeman lived in Austin and only visited his home at the “City by the Sea” on weekends. Under these circumstances it is not unusual for one to take thirty days to determine whether or not a boat would meet a specified standard in order to accept or reject the same. This the trial court impliedly found.

The second legal theory which is supported by the evidence and which would sustain the trial court’s judgment is that Haldeman did accept the boat but later revoked that acceptance under § 2.608. Under this section a buyer may accept goods when the seller assures him a nonconformity will be cured and then fails to do so. It is undisputed that Haldeman did not relinquish possession of the boat to Don’s Marine in May of 1975 but rather kept the boat because, according to Halde-man’s testimony, he was assured by the president of Don’s Marine that the problems would be corrected. On this basis alone Haldeman claims he retained possession of the boat until October when he again claims that he rejected the boat. Haldeman testified that during the period between May and September 1975 he continued to use the boat on occasions but it never did meet his satisfaction. He testified that in October when he again rejected the boat, it still was noisy, hard to handle, and constantly got the passengers and crew wet. Haldeman did not use the boat after October. His only contact with the boat after that time was to maintain the boat with reasonable care awaiting Don’s Marine’s disposition of the boat. (See Section 2.602(b)(2) of the Business & Commerce Code).

Haldeman’s delay of some three months in revoking his acceptance would be justified. A delay in revocation is justified where the seller makes repeated assurances that the non-conformity will be cured and attempts to do so. See Wadsworth Plumbing & Htg. v. Tollycraft Corp., 277 Or. 433, 560 P.2d 1080 (1977). In our case the defect to be remedied was major in nature. Revocation was justified under Section 2.608 where the defect substantially impaired the value of the boat and the seller failed to remedy the defect. See General Motors Corporation v. Earnest, 279 Ala. 299, 184 So.2d 811 (1966); Tiger Motor Company v. McMurtry, 284 Ala. 283, 224 So.2d 638 (1969).

We hold that there is ample evidence to support the trial court’s implied findings, under either theory of recovery, for Halde-man. Appellant’s point of error is overruled.

The Corpus Christi Bank and Trust and First State Bank of Aransas Pass, appel-lees, have filed their joint motion praying that we affirm that portion of the trial court’s judgment which was rendered in favor of their banks. Their motion is well-taken. The appellant has failed to raise any point of error with respect to the trial court’s judgment in favor of said banks and therefore such judgment should be accordingly affirmed as to all appellees. The judgment of the trial court is AFFIRMED.

      . § 2.601. Buyer’s Rights on Improper Delivery
      Subject to the provisions of this chapter on breach in installment contracts (Section 2.612) and unless otherwise agreed under the sections on contractual limitations of remedy (Sections 2.718 and 2.719), if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may
      (1) reject the whole; or
      (2) accept the whole; or
      (3) accept any commercial unit or units and reject the rest.
      § 2.602. Manner and Effect of Rightful Rejection
      (a) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.
      (b) Subject to the provisions of the two following sections on rejected goods (Sections 2.603 and 2.604),
      (1)after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller; and (2) if the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of this chapter (Subsection (c) of Section 2.711), he is under a duty after rejection to hold them with reasonable care at the seller’s disposition for a time sufficient to permit the seller to remove them; but (3) the buyer has no further obligations with regard to goods rightfully rejected.
      (c)The seller’s rights with respect to goods wrongfully rejected are governed by the provisions of this chapter on Seller’s remedies in general (Section 2.703).
      § 2.606. What Constitutes Acceptance of Goods
      (a) Acceptance of goods occurs when the buyer
      (1) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity; or
      (2) fails to make an effective rejection (Subsection (a) of Section 2.602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or (3) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.
      (b) Acceptance of a part of any commercial unit is acceptance of that entire unit.

      . § 2.608. Revocation of Acceptance in Whole or in Part
      (a) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it
      (1) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or
      (2) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
      (b) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
      (c) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.


source: Caselaw Access Project

license: Public Domain

text:
    R. J. HEINRICH, Appellant, v. WHARTON COUNTY LIVESTOCK, INC., et al., Appellees.
    No. 1206.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 27, 1977.
    Rehearing Denied Nov. 17, 1977.

      Howard A. Lang, Jr., Houston, for appellant.

      Larry E. Wadler, Wharton, for appellees.
   OPINION

NYE, Chief Justice.

This is a commercial transaction case. R. J. Heinrich brought suit against Wharton County Livestock, Inc. and Newell Atkinson, Wharton’s manager, to recover the value of 102 head of cattle. Trial was to the court without the aid of a jury. Judgment was entered for the defendants Wharton County Livestock, Inc. and Atkinson that Heinrich take nothing by his suit. Heinrich appeals to this Court.

A detailed history of the events leading up to this controversy is necessary to understand the problems presented by this appeal. On October 15, 1973, Heinrich and Francis Truchard entered into a “working agreement” which provided that Truchard was to purchase, pasture, feed and care for cattle for Heinrich who would provide the necessary financial assistance to purchase the cattle. The cattle were then to be sold and the profits divided equally between the parties. In furtherance of this agreement Heinrich purchased 80 head of cattle from Truchard. On December 15,1973, Truchard attended an auction at the Wharton County Livestock place of business. Truchard purchased 102 head of cattle at this auction paying for them with a series of drafts. Truchard had never purchased cattle from this Livestock Auction Company prior to this sale. The 102 head of cattle were delivered to Truchard’s pasture that same day. One week later Truchard resold these same 102 head of cattle to plaintiff Heinrich for the original 80 head of cattle and a small amount of cash. As proof of ownership of the cattle Truchard showed Heinrich the bill of sale from Wharton County Livestock which was marked “paid by draft.” Truchard also gave Heinrich a bill of sale for the cattle. Almost immediately upon purchasing the cattle, Heinrich had them branded and made arrangements with Truchard for their pasturing.

Approximately two days before the resale of the cattle from Truchard to plaintiff Heinrich, defendant Wharton County Livestock presented Truchard’s drafts to his bank for payment which were all returned marked “insufficient funds.” On December 28, 1973, six days after the resale of the cattle from Truchard to Heinrich, Wharton filed a financing statement of record covering its interest in the 102 head of cattle.

In early February 1974 Wharton’s manager, Atkinson, discovered that the 102 head of cattle sold to Heinrich were being pastured along with the 80 head of cattle previously purchased by plaintiff Heinrich and which were covered by a financing statement filed by Heinrich's bank which had lent him the money for the initial purchase. On February 19, 1974, with Truchard’s assistance, Wharton repossessed the 102 head of cattle and then promptly resold them at auction. Very shortly thereafter, Heinrich found out about the repossession. He immediately demanded the return of his cattle from Atkinson and upon Atkinson’s refusal to return the cattle, commenced the action now being reviewed by this Court. In addition to seeking recovery from Wharton and Atkinson, Heinrich also sued Truchard and took a default judgment against him for $32,124.60 plus interest and costs.

Heinrich brought suit against Wharton and Atkinson for negligently and without regard for customary and prudent business practices selling the 102 head of cattle to Truchard. It was Heinrich’s assertion that he was a bona fide purchaser of the cattle and as such was entitled to a return of his cattle or their value. Heinrich also claimed that Wharton’s act amounted to an estoppel and waiver of any claim it may have had in the cattle. Wharton plead as its defense that the sale to Truchard was a cash sale, a conditional sale, or in the alternative that Truchard was acting as Heinrich’s agent when he purchased and resold the cattle. The trial court entered a take nothing judgment favorable to defendants Wharton and Atkinson. The trial court made the following findings of fact: 1) that Truchard and Heinrich entered into an agreement to purchase cattle; 2) that Truchard was authorized to purchase, feed and care for the cattle until sold; 3) that Truchard was Heinrich’s agent when purchasing the cattle; 4) that the 102 head of cattle purchased on December 15,1973 was in furtherance of this agreement; 5) that terms of sale were cash; 6) that Truchard paid for the cattle by draft; 7) that the drafts were not honored; 8) that the memorandum of sale issued by Wharton contained the following language:

“Customers purchasing and paying for livestock through this Company by check or draft, expressly agree that title does not pass to said purchaser, but is retained by owner until the fund is actually received on the check or draft. Such check or draft is accepted only subject to the rules and practices of any bank in which it may be deposited for collection, and is accepted for collection, only as an accommodation to the maker and does not constitute a payment for animals purchased until remittance is received thereon.”;

9) that Truchard showed Heinrich the memorandum of sale prior to the return of the drafts; 10) that the agreement between Truchard and Heinrich was in effect when cattle were reclaimed by Wharton; 11) that accepting drafts and giving up possession of cattle was a reasonable standard procedure; 12) that giving Truchard possession of the cattle was not a waiver of the terms of the memorandum; 13) that allowing Truchard to maintain possession of cattle until February 19,1974 was not unreasonable; 14) that Wharton was unaware of the agreement between Truchard and Heinrich; and 15) that Truchard voluntarily surrendered possession of the cattle.

Heinrich presents eleven points of error to this Court. These eleven points may be generally reduced to three basic contentions. The first basic question is whether there was evidence or the evidence was sufficient to support the trial court’s findings that Truchard was Heinrich’s agent when he purchased the cattle. First we must determine whether or not a joint venture existed. The essential elements of a joint venture are: 1) mutual right of control, 2) community of interest, 3) agreement to share profits as principals and 4) agreement to share losses, costs or expenses. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704 (1956); Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716 (1946); Chandler v. Herndon, 450 S.W.2d 703 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n.r.e.); Price v. Wrather, 443 S.W.2d 348 (Tex.Civ.App.—Dallas 1969, writ ref’d n.r.e.). Using this test we find that the “working agreement” which was entered into by Truchard and Heinrich coupled with the testimony of Heinrich himself constituted sufficient evidence to support the trial court’s findings and our conclusion that the two were in fact engaged in a joint venture.

As a general rule, a joint venture is governed by the same rules as a partnership. See Thompson v. Thompson, 500 S.W.2d 203 (Tex.Civ.App.—Dallas 1973, no writ); Weatherford v. Lee, 364 S.W.2d 730 (Tex.Civ.App.—San Antonio 1963, writ ref’d n.r.e.); Tex-Co Grain Co. v. Happy Wheat Growers, Inc., 542 S.W.2d 934 (Tex. Civ.App.—Amarillo 1976, no writ). Under the partnership act, the knowledge of one partner which affects the partnership is imputed to the other partners. See Lee v. Durango Music, 144 Colo. 270, 355 P.2d 1083 (1960). In addition it is clear under § 9 of Article 6132b that each partner is the agent of the other partners when acting in furtherance of partnership business. Therefore evidence showing knowledge of one of the partners to the transaction attributes such knowledge to the other partner as a matter of law. See also Windom National Bank v. Klein, 191 Minn. 447, 254 N.W. 602 (1934). Woolard v. Mobile Pipe Line Corn- pany, 479 F.2d 557 (5th Cir. 1973) cert. denied 414 U.S. 1025, 94 S.Ct. 450, 38 L.Ed.2d 316. Appellant’s points of error 1, 9 and 10 are overruled.

Having agreed with the trial court’s conclusion of law that Truchard and Heinrich were joint venturers in the purchase of the cattle, the next question is what effect does this have on Heinrich’s contention that he was a bona fide purchaser of the cattle from Truchard. The answer is simply that our holding that the partners’ agreement was a joint venture is fatal to Heinrich’s alleged status as a bona fide purchaser. Sec. 1.201(C9) Tex.Bus. & Com.Code Ann. (Supp.1977) defines “buyer in ordinary course of business” (i.e., bona fide purchaser) as “. . .a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind . ” Compare § 8.302, Tex.Bus & Com.Code Ann. (1968). The two key elements established by the definition are good faith and lack of knowledge. Merlyn Urbanosky, an employee of Wharton, testified that Truchard told him at the time the drafts were issued that he (Truchard) lacked sufficient funds to pay for them. Therefore Truchard knew the cattle were not paid for at the time he sold them to Heinrich. Since the cattle were purchased in furtherance of their joint business, this knowledge was imputed to Heinrich. Heinrich necessarily had knowledge of the Wharton County Livestock’s ownership at the time he purchased the cattle from Truchard. Therefore he was not a bona fide purchaser. Appellant’s points of error 2, 3, 7 and 8 are overruled.

Next, Appellant Heinrich alleges that Wharton was estopped by its own negligence from asserting title to the cattle and had waived ownership in the 102 head of cattle. The basis of Heinrich’s argument is that Wharton, in allowing a man they had never seen or done business with, purchase $51,000.00 worth of cattle by draft and leave the premises without checking his credit was negligence as a matter of law. The management of Wharton testified that it was'customary for them to issue bills of sale and relinquish possession of cattle under circumstances similar to those under which Truchard purchased the cattle. In addition, Wharton’s expert witness, Clifford Boetcher, testified that the method used by Wharton to check on Truchard’s credit was a reasonable check used in the industry. After reviewing all of the evidence, we hold that the trial court’s finding that Wharton was not negligent, and therefore could not be estopped by its alleged negligence, was supported by sufficient evidence.

The remaining question is whether or not Wharton waived its right to repossess the cattle by allowing Truchard to keep the bill of sale and the cattle after they became aware that the drafts would not be honored. The conditions of the sale printed at the bottom of each bill of sale issued by Wharton prevented the occurrence of the alleged waiver. This condition was to the effect that if the cattle were paid for by check or draft, title did not pass until the check or draft was honored. The incorporation of this condition into the sale meant that Wharton could not waive its title by failure to act, but only by affirmative action.

Waiver is the intentional relinquishment of a known right or intentional conduct inconsistent with claiming it. Massachusetts Bond. & Ins. Co. v. Orkin Exterm. Co., 416 S.W.2d 396 (Tex.Sup.1967), Rio Delta Land Company v. Johnson, 475 S.W.2d 346 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n.r.e.). The key element of a waiver is intent. Smith v. City of Dallas, 425 S.W.2d 467 (Tex.Civ.App.—Dallas 1968, no writ); Surko v. Harrison, 391 S.W.2d 115 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n.r.e.). In order to establish waiver there must be a clear and decisive act showing such a purpose. Cattle Feeders, Inc. v. Jordan, 549 S.W.2d 29 (Tex.Civ.App.—Cor-pus Christi 1977, no writ). There is no evidence that Wharton ever waived its rights in the cattle sold to Truchard. The evidence demonstrates that after Wharton became aware that the drafts were not to be honored they perfected their security interest in the cattle and began attempts to locate and repossess the cattle. Appellant’s points of error 4, 5 and 11 are overruled.

The judgment of the trial court is AFFIRMED.

      . Tex.Rev.Civ.Stat.Ann., Art. 6132b, § 12 (1970) Partnership Charged with Knowledge of or Notice to Partner
      Sec. 12. Notice to any partner of any matter relating to partnership affairs, and the knowledge of the partner acting in the particular matter, acquired while a partner or then present to his mind, and the knowledge of any other partner who reasonably could and should have communicated it to the acting partner, operate as notice to or knowledge of the partnership, except in the case of a fraud on the partnership committed by or with the consent of that partner.


author: HALL, Justice.

text:
    G & W BODY WORKS, INC., Appellant, v. ESTATE of Elwood ESCHBERGER, Deceased, Appellee.
    No. 5739.
    Court of Civil Appeals of Texas, Waco.
    Oct. 27, 1977.
    Rehearing Denied Nov. 30, 1977.
    Andy J. McMullen, McMullen, Connally, Robertson & Jordan, Inc., Hamilton, for appellant.
    James E. Crouch, Hamilton, for appellee.
   HALL, Justice.

This is a suit upon a foreign judgment which was rendered in favor of plaintiff G & W Body Works against Elwood Eschber-ger, a Texas resident, by the District Court of Bryan County, Oklahoma, when Eschber-ger failed to answer or appear in G & W’s suit against him on a sworn account for materials and services. The judgment was dated July 17, 1973, and awarded G & W a recovery of $4,075.30 with interest thereon at the rate of ten per cent per annum from September 27, 1972, and attorney’s fee in the amount of $407.50 with interest thereon at ten per cent per annum from date of judgment. Thereafter, Eschberger died. G & W then brought this suit on the judgment against the “Estate of Elwood Esch-berger, Deceased,” in the District Court of Hamilton County, Texas. The suit was answered and defended by La Ree Christin Eschberger, Administratrix of the Estate of Elwood J. Eschberger, Deceased. After a trial without a jury, judgment was rendered on December 22, 1976, that plaintiff take nothing. Plaintiff appeals. We reverse and render:

The Oklahoma judgment appears to be a valid, final and subsisting judgment rendered by a court of general jurisdiction. Its introduction into evidence made a prima facie case for plaintiff, and cast upon defendant the burden of establishing that the Oklahoma court lacked jurisdiction or that the judgment was otherwise void. Mitchim v. Mitchim, (Tex.Sup.1975) 518 S.W.2d 362, 364.

The trial court made and filed findings of fact and conclusions of law to the effect (1) that plaintiff’s petition in the Oklahoma suit did not state a cause of action against Eschberger, and (2) that the foreign court’s assumption of jurisdiction violated the requirements of federal constitutional due process because of want of sufficient contacts by Eschberger in the State of Oklahoma. By appropriate points of error, these findings and conclusions are challenged by plaintiff.

Plaintiff’s petition in the Oklahoma court was as follows:

IN THE DISTRICT COURT IN AND FOR BRYAN COUNTY, STATE OF OKLAHOMA
G & W BODY WORKS, INC. an Oklahoma Corporation
PLAINTIFF
-VS-
ELWOOD ESCHBERGER and HAMILTON PICKUP TRAILERS COMPANY, a corporation
DEFENDANTS
PETITION
Comes now the Plaintiff and for cause of action against the Defendants does allege and state as follows:
1. That the Defendant Hamilton Pickup Trailers Company does business at 113 East Leslie Street, Hamilton, Texas, 75431 and that the defendant, Elwood Eschberger, is an official of said Company and may be served with summons at the same address.
2. That in September, 1972, the Defendant, Elwood Eschberger, did request the Plaintiff to install two aluminum van bodies upon trailer chassis for the Defendant Hamilton Pickup Trailers Company at a cost of $4,075.30, as evidenced by an Invoice No. 9153, dated September 27, 1972, attached hereto as exhibit A. That said services were furnished in Durant, Ok. with the expectation that they would be paid for in cash. That demand for payment has been made and there is due and owing of $4,075.30 with interest from September 27, 1972. That by Western Union Telegram the said Hamilton Pickup Trailers Company did notify the Plaintiff that it did guarantee the payment of Invoice No. 9153 in the amount of $4,075.30, plus interest at 10% from September 27, 1972, said payment to be made by January 27, 1973. That to date, no payment has been made, although subsequent demands for payment have been made.
3. That there is due and owing without offset or setoff in the amount of $4,075.30, plus interest at 10% until paid from September 27, 1972, plus a reasonable attorney’s fee. That a reasonable attorney’s fee is $407.50.
WHEREFORE, premises considered, Plaintiff does pray judgment against the Defendants, and each of them, in the amount of $4,075.30, plus interest at the rate of 10% per annum from September 27, 1972, plus an attorney’s fee in the amount of $407.50, plus its costs herein expended.

The petition was signed by plaintiff’s attorney and sworn to by its president.

The invoice attached to the petition contains plaintiff’s letterhead, and states:

“Sold to: Mr. Eschberger
c/o Hamilton Pickup Trailers Company Highway 281, South Hamilton, Texas
“Description: Installed Aluminum Van Bodies on Trailer Chassis for A.B.S. Inc.; Price $2,037.65 ea.; Amount: $4,075.30.
“Hamilton Pickup Trailers Company to pay FET”

We agree with plaintiff that viewed from its four corners the petition stated a cause of action against Eschberger and gave him fair notice that he was being sued individually on plaintiff’s account. Defendant contends the petition showed only that Esch-berger was an official of Hamilton Pickup Trailers Company, that the work was done for Hamilton Pickup Trailers Company, and that Hamilton Pickup Trailers Company was to pay for the work. Although the petition recited that Eschberger was an official of the Company and that the Company guaranteed payment of the account, it and the attached exhibit also showed that Eschberger solicited the work, that he was billed individually for the work, that he was named individually as a defendant, and that plaintiff prayed for recovery against him as an individual defendant. In our view, the recitation that the Company guaranteed payment of the account supports a pleading of individual liability by Eschberger. Defendant’s contentions are overruled.

In O’Brien v. Lanpar Company, 399 S.W.2d 340, 342, (Tex.Sup.1966) our Supreme Court set forth three basic elements which must be met before jurisdiction over a nonresident will satisfy federal constitutional due process:

(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the foreign state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

At all pertinent times Eschberger’s residence and place of business were in the City of Hamilton, Hamilton County, Texas. The process issued in the Oklahoma suit was served on him in Hamilton County, Texas, in compliance with Oklahoma’s so-called “long-arm” statute. Eschberger was a certified public accountant. He was also general manager of Hamilton Pickup Trailers Company, a corporation located in the City of Hamilton, and owned stock in that company. Plaintiff’s business is located in the City of Durant, Bryan County, Oklahoma. On the occasion in question, Eschberger, in Hamilton, Texas, called plaintiff’s president, who was in Durant, Oklahoma, and requested that plaintiff install aluminum van-type bodies on two trailers manufactured by Hamilton Pickup Trailers Company which would be delivered to plaintiff’s place of business. The trailers were delivered to plaintiff by an employee of Hamilton Pickup Trailers Company, and the work was done. Thereafter, the finished trailers were picked up at plaintiff’s place of business by the American Breeders Association.

Eschberger was never in the State of Oklahoma, and his only contacts with plaintiff on the transaction in question were by telephone. Plaintiff’s president testified that he knew there was a connection between Eschberger and the Trailer Company, but he did not know what it was; that when Eschberger called he “didn’t give any thought” to who owned the trailers because Eschberger said “he wanted to buy two of those bodies like we’ve put on some trailers before, and I didn’t question it”; and that he didn’t assume it was just “a deal between the Trailer Company and American Breeders” because Eschberger “told me who he was and said he wanted to buy some — the bodies to go on the trailer like this, that he had some trailers sold to American Breeders Association.” Additionally, he testified that “Mr. Eschberger’s customer picked up [the finished trailers] at our location in Durant, Oklahoma.” The trial court expressly found that “Elwood Esch-berger’s customer picked up Plaintiff’s finished work products which were the basis for Plaintiff’s cause of action in the District Court of Bryan County, Oklahoma, at Plaintiff’s place of business in Durant, Bryan County, Oklahoma.” This finding has not been challenged.

Defendant argues that the record shows that “all actions had by [Eschberger] with respect to the transaction made the basis of the suit were as an officer of [the Trailer Company].” There is no direct evidence of this fact. In the light of the testimony that Eschberger told plaintiff’s president that “he wanted to buy” the trailer bodies and that the finished trailers were delivered to “Eschberger’s customer,” and the court’s unchallenged finding that the trailers were delivered to “Eschberger’s customer,” the contention must be overruled.

The record shows without question that the Oklahoma suit arose directly from a transaction between Eschberger and plaintiff which was solicited and finalized in the forum state. Although Eschberger’s direct contacts with plaintiff were only by telephone, he solicited plaintiff’s services to be performed in Oklahoma, caused the trailers to be delivered to plaintiff’s place of business in Oklahoma, and his customer picked up the finished trailers there. Evidence which we have not set forth shows that the aluminum bodies installed on the trailers were specially fabricated by plaintiff, and that the trailers are being used by the American Breeders Association (Eschberger’s customer) in Oklahoma. Under these facts, considering the criteria set forth in O'Brien v. Lanpar Company, supra, it cannot be said that the exercise of jurisdiction by the Oklahoma court offended traditional notions of fair play and substantial justice.

The judgment of the trial court is reversed. Judgment is rendered that plaintiff G & W Body Works recover from defendant La Ree Christin Eschberger, Ad-ministratrix of the Estate of Elwood J. Eschberger, Deceased, $4,075.30 with interest thereon at the rate of ten per cent per annum from September 27,1972, until paid; and $407.50 attorney’s fee with interest thereon at the rate of ten per cent per annum from July 17, 1973, until paid.

All costs of trial and appeal are assessed against defendant-appellee.

ON MOTION FOR REHEARING

Defendant’s renewed contention that the petition in the Oklahoma suit did not state a cause of action against Eschberger is overruled.

The trial court expressly found that all contacts between Eschberger and plaintiff “were had by the said Eschberger acting as an officer and employee of Hamilton Pickup Trailer Company, Inc.” On original submission we held there is no evidence to support this fact. Defendant questions this holding. We now agree with defendant that the record contains evidence (which we need not detail) supporting this finding, and overrule plaintiff’s contrary contention. Nevertheless, we also agree with plaintiff that the evidence is factually insufficient to support the finding. For these reasons we grant defendant’s motion for rehearing, set aside our former judgment, reverse the judgment of the trial court, and remand the case for another trial.

Reversed and remanded.


text:
    J. J. H., a juvenile, Appellant, v. The STATE of Texas, Appellee.
    No. 5802.
    Court of Civil Appeals of Texas, Waco.
    Oct. 27, 1977.

      Tom W. Watson, Watson, Benedict & Wiginton, Angleton, for appellant.
    Ogden L. Bass, Criminal Dist. Atty., A. B. Crowther, Jr., Asst. Crim. Dist. Atty., An-gleton, for appellee.
   HALL, Justice.

In September, 1976, appellant juvenile was adjudged to be a delinquent child and was placed on probation. One condition of probation was that appellant not violate the laws of this State. Thereafter, the State filed a Motion to revoke probation pleading that on or about February 1, 1977, during the term of probation, appellant committed the offense of burglary in violation of V.T. C.A., Penal Code, § 30.02. After a hearing without a jury, the order of probation was set aside and appellant was committed to the custody of The Texas Youth Council. He appeals. We affirm.

When the State rested its proof on the question of probation violation, appellant based an oral motion for dismissal of the proceeding upon the fact that the State’s petition does not allege the County and State in which the burglary charged against him was committed. The motion was overruled. Appellant assigns error to this ruling, citing V.T.C.A., Family Code § 51.06(a). This statute is one of venue. It provides, “Venue. A proceeding under this title shall be commenced in: (1) the county in which the child resides; or (2) the county in which the alleged delinquent conduct or conduct indicating a need for supervision occurred.” Delinquency proceedings are civil in nature, and are governed by our rules of civil procedure. Brenan v. Court of Civil Appeals, Fourteenth District, 444 S.W.2d 290, 292 (Tex.Sup.1969); Lockamy v. State, 488 S.W.2d 954, 956 (Tex.Civ.App.—Austin 1973, no writ). A plaintiff is not required to plead facts supporting venue in the county of suit until the defendant raises the issue by filing a plea of privilege. Rule 86, Vernon’s Tex.Rules Civ.Proc. Appellant did not file a plea of privilege. Additionally, the proof shows without contradiction that the burglary in question was committed in the county of suit.

Family Code § 54.05(f) permits modification of a juvenile probation order upon proof “beyond a reasonable doubt” that the child violated its terms. Appellant says the record before us does not satisfy the quantum of proof required by this statute. We disagree. Appellant’s participation in the burglary charged against him was directly established by the testimony of an accomplice witness. This testimony was circumstantially corroborated. In the case of In the Matter of S.J.C., 533 S.W.2d 746 (Tex. Sup.1976, cert, den., 429 U.S. 835, 97 S.Ct. 101, 50 L.Ed.2d 100) it was held that a finding of delinquent conduct beyond a reasonable doubt supported only by uncorroborated accomplice witness testimony did not violate constitutional due process.

Appellant’s remaining points and contentions are without merit. They are overruled.

The judgment is affirmed.


author: PER CURIAM.

text:
    Roger F. GERDES, Jr., Appellant, v. FIRST NATIONAL BANK AT BROWNSVILLE, Texas, Appellee.
    No. 1279.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 27, 1977.
    Bennie E. Ray, Brownsville, for appellant.
    C. Fount Ray, Ransome & Ray, P. C., Brownsville, for appellee.
   OPINION

PER CURIAM.

Appellant perfected his appeal from a judgment adverse to him rendered June 16, 1977 in the 197th District Court of Cameron County. The cost bond was filed in the District Court, and the transcript and statement of facts were filed in this Court on August 16, 1977 and August 31, 1977, respectively. Under Rule 414, T.R.C.P., appellant’s brief was due to be filed on September 30, 1977.

Appellant has not filed a brief, nor has a motion for extension of time been filed. On October 14, 1977, Bennie Ray, appellant’s attorney, was notified that the cause would be dismissed on October 27, 1977 for failure to timely file a brief unless he appeared at 9:00 A. M. on that date and showed cause why the appeal should not be dismissed.

No one representing appellant appeared in this Court on October 27, 1977. However, a letter was received from Mr. Nick Malant, an attorney in Brownsville, requesting an extension of time to file the brief and stating that Mr. Ray has been involved in a lengthy trial.

We find that the time for filing of appellant’s brief has expired, that the letter request for an extension was neither timely nor sufficient to constitute a motion, and that neither appellant nor his representative appeared at the show cause hearing. It is therefore ordered that this cause be dismissed. See Continental Oil Co. v. Do-bie, 552 S.W.2d 183 (Tex.Civ.App. — Corpus Christi 1977, writ ref’d n. r. e.); Rule 414, T.R.C.P.

Appeal dismissed.


author: McDONALD, Chief Justice.

text:
    Mary E. NEWSOM et vir., Appellants, v. Lawrence J. MOERTLE ex ux., Appellees.
    No. 5810.
    Court of Civil Appeals of Texas, Waco.
    Oct. 27, 1977.
    James E. Ferguson, Cleburne, for appellants.
    Tommy Altaras and Jack Altaras, Altar-as, Altaras & Altaras, Cleburne, for appel-lees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants Newsom from $7,000. judgment for plaintiffs Moer-tle, in a suit for damages for breach of an option contract and covenant.

Plaintiffs Moertle sued defendants New-som alleging defendant Mary Newsom contracted to sell and conveyed to plaintiffs 4.21 acres of land in Johnson County; that such contract and deed contained an express option and covenant that plaintiffs “will have first option to purchase the property adjoining the above described property if and when any part of said property is sold by seller”; that defendants conveyed a portion of the adjoining property without giving plaintiffs opportunity to purchase same; to plaintiffs’ damage.

Defendants’ answer asserted among other matters that the purported option was not a valid option, and that the land conveyed was not sold, but was given to defendants’ son, thus not sold in violation of the option.

Trial was to a jury which found:

1) After the date of the contract and covenant Mrs. Newsom sold another portion of her approximate 46 acre tract.
2) That such sale was a violation of Mrs. Newsom’s option agreement with plaintiffs as provided in the warranty deed dated May 4, 1973.
3) That the market value of plaintiffs’ tract of land before violation of the option agreement was $49,000.; that such value was $42,000. after violation of the option agreement.

The trial court rendered judgment for plaintiffs for $7,000.

Defendants appeal on 12 points principally contending:

1) The trial court erred in finding that the option made the basis of this suit was a valid option.
2) There is no evidence to support the jury’s answers to Issue 3.
3) The trial court erred after the jury first returned its verdict, in orally instructing the jury to return and reconsider its answers to Issue 3.

Contention 1 asserts the option is not a valid option because of inadequate description of the land upon which the option was granted; and that parol evidence was not admissible to show what land was optioned.

Plaintiffs and defendant Mrs. Newsom entered a contract for the sale and purchase of a tract of land in Johnson County described as 4 acres more or less out of a 99.48 acre tract, which was described by metes and bounds. The contract provided “Seller agrees that Buyers will have first option to purchase same if and when any part of the above described tract is sold by the Seller herein * * Pursuant to such contract plaintiffs purchased 4.21 acres out of the 99.48 described tract paying $49,000. for same. Mrs. Newsom executed and delivered to plaintiffs a warranty deed describing such 4.21 acres out of the 99.48 acre tract recited to have been conveyed to Mrs. Newsom (then Duckett) and her then husband. The deed further recites:

“It is further understood and agreed that the Buyers will have first option to purchase the property adjoining the above described property if and when any part of said property is sold by the Seller herein *

Thereafter Mrs. Newsom conveyed a 5 acre tract out of the 99.48 tract to her son, without notifying plaintiffs or giving them opportunity to purchase same. Mrs. New-som contended that she gave the property to her son but the jury resolved otherwise, and such is not complained of.

The deed on its face shows that the 4.21 acres was carved out of a 99.48 acre tract conveyed to Mrs. Newsom (Duckett) and her then husband. Mrs. Newsom testified she was divorced from her husband and that in the divorce proceedings she had 50 acres with the house set aside to her out of the 99.48 acre tract; that she recognized the option as being in the deed to the plaintiffs, and it was her intention to live up to such option.

The deed describes the 99.48 acres as property conveyed to the seller and her husband; and the deed to plaintiffs refer to the optioned property as the “seller’s property”. Such is sufficient description to authorize the showing by extrinsic evidence what portion of such 99.48 acres is actually owned by seller and option granted thereon. Pickett v. Bishop, Tex., 223 S.W.2d 222.

Contention 2 asserts there is no evidence to sustain the jury’s answers to Issue 3. The deed to plaintiffs for the 4.21 acres containing the option to purchase the adjoining property, recites that plaintiffs paid a consideration of $49,000. There is evidence that the 4.21 acres without the option would be worth less than $49,000. and the witness Brown testified the property was worth $38,000. without the option.

Contention 3 asserts the trial court erred in orally instructing the jury to return and reconsider its answers to Issue 3.

When the jury first returned its verdict to the trial judge it answered Issue 3: $56,-000. as the value of the 4.21 acres with the option, and $49,000. as the value without the option.

The trial judge orally instructed the jury that their answers to Issue 3 should conform to the evidence. The jury then reconsidered their verdict and answered $49,000. value with the option and $42,000. value without the option.

Rule 295 TRCP requires the trial court to call the jury’s attention “in writing” to defective verdict, and send them back on further deliberation.

The court’s oral instruction to the jury, if error, is obviously harmless under Rule 434 TRCP, since the difference in both instances is $7,000.; and there is evidence plaintiffs spent in excess of $7,000. on the property. See also Denbow v. Standard Acc. Ins. Co., Tex., 186 S.W.2d 236.

All defendants’ points and contentions are overruled.

AFFIRMED.


author: YOUNG, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Toribio GARZA, Appellee.
    No. 1196.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 27, 1977.
    Rehearing Denied Nov. 30, 1977.

      John D. Carlos, Thomas H. Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellant.
    Barry Snell, Bayne, Snell & Krause, San Antonio, for appellee.
   OPINION

YOUNG, Justice.

In this workmen’s compensation case To-ribio Garza sued Texas Employers’ Insurance Association seeking compensation for total and permanent disability caused by back injuries received on July 2,1974, while employed by Billy Moore Trucking Company. Trial before a jury on special issues resulted in a judgment for plaintiff for partial and permanent disability benefits. Defendant insurance company appeals. We affirm.

The insurance agency’s points of error 1 through 9 complain of remarks made by the trial judge to Mr. Segrato, counsel for the company, and to the jury. As basis for reversal of the judgment, the insurance company would show that these remarks belittled its counsel and constituted comments on the weight of the evidence which were calculated to and probably did result in the rendition of an improper verdict. The incident complained of in points 1 through 4 and 7 occurred when defense counsel was cross-examining Dr. Warren Ross about a statement he had supposedly made and about his possible biases. In that regard, the following colloquy occurred between the trial judge and Mr. Segrato. The remarks specifically complained of are underlined:

“THE COURT: Well, I don’t think it’s material, just harrassment.
MR. SEGARATO: Your Honor, I intend to harrass him as much as I can in cross examination.
THE COURT: Well, you are not going to do it in this court or vou will end up in that jail.
Q: Doctor, how may patients have you seen for Hector Gonzales? •
THE COURT: What is the relevancy of that in this case?
MR. GONZALEZ: I don’t think that is relevant.
THE COURT: Mr. Gonzales is a member of this bar in good standing, if he sends a patient to see doctor so and so here or this man—
MR. SEGRATO: The relevancy, Your Honor, is that it touches on his bias and prejudice in this case, and on his credibility as a witness before the jury, that’s why I am attempting to offer this.
MR. GONZALEZ: I object to it.
MR. SEGRATO: Your Honor, I would like to make a bill on this, please, sir. THE COURT: Well, let’s do this in a decent lawverlike wav.
MR. SEGRATO: Pardon me sir?
THE COURT: Let’s conduct this trial in a decent lawverlike wav.
MR. SEGRATO: I will, Your Honor. THE COURT: You have stated that you are going to harrass this witness every way you can.
MR. SEGRATO: By cross examination. THE COURT: Well, I don’t know whether I should — can this lawyer take over the case or Mr. Schneider?
MR. SEGRATO: Beg your pardon?
THE COURT: Can Mr. Schneider take over the case?
MR. SEGRATO: He doesn’t know anything about the facts of the case, Your Honor.
THE COURT: Well, conduct yourself as a lawyer and a gentlemen.
MR. SEGRATO: I will, Your Honor. THE COURT: Don’t try to inject prejudice, let’s try this case on the facts.”

A presiding judge has broad discretion with respect to the manner in which control of a trial is maintained and to the extent of cross examination allowed and a judgment will not be reversed for error in either of these areas unless probable prejudice is shown. Best Investment Company v. Hernandez, 479 S.W.2d 759 (Tex.Civ.App.—Dallas 1972, writ ref’d n.r.e.); Sands v. Cooke, 368 S.W.2d 111 (Tex.Civ.App.—San Antonio 1963, no writ); Texas Mexican R. Co. v. Bunn, 264 S.W.2d 518 (Tex.Civ.App.—San Antonio 1953, writ ref’d n.r.e.). As a general rule, however, a trial judge may not comment on the weight of the evidence. 56 Tex.Jur.2d Trial § 80 (1964).

It seems plain to us that the remarks presented contained no intimation in favor of or against the credibility of the evidence, nor any direct comment on the weight of the evidence, but only a rebuke of counsel for threatening to harass the witness. It is quite clear that it is improper for counsel to threaten or browbeat a witness and that the extent of cross-examination is left largely to the discretion of the trial judge. 62 Tex.Jur.2d Witnesses § 180 (1965). Here the trial judge told defense counsel that certain questioning was harassment. In reply the attorney stated that he intended to harass the witness as much as possible. This remark was contemptuous of both the judge and the witness. Thus the trial judge was correct in admonishing defense counsel. French v. Brodsky, 521 S.W.2d 670 (Tex.Civ.App. — Houston [1st Dist.] 1975, no writ); Fox v. Gulf C. & S. Ry. Co., 80 S.W.2d 1072 (Tex.Civ.App. — Galveston 1935, error dism’d).

Further, it is our opinion that the remarks complained of are of the type which could have been rendered harmless by proper instructions from the trial judge after objection. Counsel for the insurance company did not object to any of the remarks of which he now complains. So his failure to object to the claimed prejudicial remarks of the trial judge waives such error on appeal. State v. Wilemon, 393 S.W.2d 816 (Tex.Sup.1965); Gillum v. Temple, 546 S.W.2d 361 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.). Appellant’s points 1 through 4 and 7 are overruled.

In its points 5 and 6 the insurance company complains of the following remarks by the trial judge:

“I think you ought to ask the doctor questions and not make statements of fact, Mr. Segrato, if you want to testify we will let you take the stand.
You have asked him these things over and over and over, you are harassing the Court now.”

After our review of the testimony leading up to these remarks by the court we cannot find that the trial judge abused his discretion in controlling the trial in this manner. Hill v. Budget Finance & Thrift Company, 383 S.W.2d 79 (Tex.Civ.App.—Dallas 1964, no writ); Cogbill v. Martin, 308 S.W.2d 269 (Tex.Civ.App.—Waco 1957, no writ). Again appellant has failed to object to the trial judge’s remarks. Therefore if there was error it has been waived. State v. Wilem-on, supra; Gillum v. Temple, supra. Appellant’s points 5 and 6 are overruled.

The insurance company, in its points 8 and 9, urges error in the following underlined remarks of the trial judge:

“THE COURT: Yes, the question in this case is whether this man, this plaintiff over here is capable of performing the ordinary tasks of a workman, to the extent of being able to — or not being able to obtain and keep employment. I am confused about a lot of this svmmetics, (sic.) can’t we get down to the basic questions or question of the ability of this man to. whether he can get a iob and do work and keep a iob?
MR. SEGRATO: Well, Your Honor, I think what I am trying to question the doctor on is whether or not his diagnosis and treatment that he gave this man was necessary, and surgery, was necessary. THE COURT: How many of you jurors were confused? Hold up vour hands. Well, go ahead.”

Even if these statements constituted comments on the evidence as presented, they were not so prejudicial, in view of the entire record, that they caused reversible error. Once more defense counsel failed to object to the trial judge’s remarks. Thereby he waived any error that could have been asserted. State v. Wilemon, supra; Gillum v. Temple, supra. Appellant’s points 8 and 9 are overruled.

Points 10 through 16 are complaints by the insurance company of the trial court’s refusal to allow cross-examination of Dr. Ross about his qualifications and about his possible bias and prejudice. In Russell v. Young, 452 S.W.2d 434 (Tex.Sup. 1970), our Supreme Court held that cross-examination of a medical witness to show bias and prejudice may be based on the number of times the witness has testified in other lawsuits, payments for such testimony and related questions. See Barrios v. Davis, 415 S.W.2d 714 (Tex.Civ.App.—Houston [1st Dist.] 1967, no writ). It is also well established law that on cross-examination of an expert witness, counsel may inquire into the witness’ qualifications. French v. Brodsky, supra; Grocers Supply Co. v. Stuckey, 152 S.W.2d 911 (Tex.Civ.App.—Galveston 1941, writ ref’d w.o.m.).

In that regard, when tendered evidence is excluded, whether testimony of one’s own witness on direct examination or testimony of the opponent’s witness on cross-examination, in order to later complain it is necessary for the complainant to make an offer of proof on a bill of exception to show what the witness’ testimony would have been. Otherwise there is nothing before the appellate court to show reversible error in the trial court’s ruling. Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155 (1945); Rose v. Allied Finance Company of Oak Forest, 487 S.W.2d 861 (Tex.Civ.App.—Waco 1972, no writ). In the case before us the insurance company did make a bill of exception out of the jury’s presence, regarding matters precluded by the trial court, and the insurance company did offer the testimony of Dr. Ross elicited on the bill. The trial court overruled the insurance company’s offer to present that evidence to the jury.

The bill, however, contained both admissible and inadmissible evidence. In that situation, the insurance company couldn’t validly complain of the trial court’s refusal to admit all of the testimony. Hanover Insurance Company v. Peyson, 373 S.W.2d 701 (Tex.Civ.App.—Fort Worth 1968, no writ); Phariss v. Texas Employers Ins. Ass’n, 290 S.W.2d 289 (Tex.Civ.App.—Dallas 1956, no writ).

Additionally, the admissible testimony in the bill was admissible only for the limited purposes of impeachment and to show bias and prejudice of Dr. Ross. And where the evidence is admissible for a limited purpose or purposes only, if the evidence is excluded by the trial court, the complaining party must then ask that the admissibility be limited to the specific purpose or purposes for which it would be admissible. Otherwise there is no error in the trial court’s exclusion of the evidence. Texas General Indemnity Company v. Ellis, 421 S.W.2d 467 (Tex.Civ.App.—Tyler 1967, no writ). The offer of the excluded testimony by the insurance company here was not a limited offer but a general offer.

All of which brings us to another reason why we cannot uphold the insurance company’s complaints about the trial judge’s exclusion of evidence. To obtain a reversal based upon those complaints the insurance company must show that those actions of the trial judge were reasonably calculated to cause and probably did cause rendition of an improper judgment. Rule 434, T.R.C.P.

After our careful review of the record as a whole it is our opinion that the insurance company has failed in its Rule 434 burden. We will set out some of our reasons why.

Appellee Garza pled and offered testimony that would support his allegation that his injury was the producing cause of total and permanent disability. The jury, however, returned a verdict of only partial and permanent disability.

Further, the testimony in this case, excluding 57 pages taken on the bill of exception, covered 278 pages. Of that testimony 115 pages comprises cross-examination of Dr. Ross by defense counsel. This lengthy cross-examination was permitted by the trial court despite the fact that there was very little evidence to dispute Dr. Ross’ testimony. The evidence was uncontroverted that Toribio Garza was injured on July 2, 1974, and that such injury was sustained while working for Billy Moore Trucking Company. He was first treated by Dr. Stark. Later, in August, 1974, he was treated by Dr. Hernon. He was also sent to two different orthopedic surgeons by the insurance company (Dr. Gonzalez and Dr. Barnes). Dr. Ross had also seen Garza during the time while he was being examined by Dr. Barnes and Dr. Gonzalez. In late 1974, both Dr. Gonzalez and Dr. Barnes certified Garza as being fit to return to work. Dr. Ross had reported on September 13, 1974, that Garza might be capable of resuming some type of work activity.

But Garza continued to experience back pains, and returned to Dr. Ross on July 17, 1975. From July 17,1975, until the time of trial the only medical testimony concerning Garza’s condition during that period was by Dr. Ross. Dr. Ross diagnosed the problem as an injured disc. On August 12, 1975, surgery was performed by him. The doctor testified that he could see scar tissue surrounding the nerve and that there was a visible rupture. Dr. Ross was of the opinion that Garza was totally and permanently disabled. This opinion was corroborated by Garza, his wife and several lay witnesses called by Garza. The only evidence offered by the insurance company to show or infer subsequent injury were the releases to return to work by Dr. Gonzalez and Dr. Barnes. When we consider the foregoing evidence and circumstances of the trial, we are of the opinion that the trial court’s limitation of the cross-examination of Dr. Ross about qualifications and possible bias and prejudice did not result in the rendition of an improper judgment. Appellant’s points 10 through 16 are overruled.

The judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    Hamilton BROWNING et al., Appellants, v. Gene Richard WEST et al., Appellees.
    No. 1023.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 27, 1977.
    Rehearing Denied Dec. 1, 1977.

      Joe D. Clayton, Lotis Rowan, Files, Clayton, Bain & Clark, Jerry Bain, Coye Conner, Jr., Tyler, for appellants.
    John H. Minton, Jr., Potter, Guinn, Min-ton & Dickerson, Willis Jarrel, Goodwin & Jarrel, Bill Coats, Tyler, for appellees.
   DUNAGAN, Chief Justice.

Hamilton Browning, et al., claiming to be the heirs-at-law of Sam and Victoria Browning, deceased, are the appellants (plaintiffs below) and Gene Richard West, et al., are the appellees (defendants below) in this trespass to try title suit. The title to a 58-acre tract of land located in the Still-well Box Survey, Smith County, Texas, is at question.

It was stipulated by the parties herein that Sam and Victoria Browning are the common source of appellants’ and appellees’ title and that the property was acquired as community property of the marriage of Sam and Victoria Browning. Sam and Victoria Browning acquired title to this property from H. B. Marsh by deed dated February 25,1925. The property conveyed in the aforementioned deed contained 98 acres. On the same day, Sam and Victoria Browning deeded back to H. B. Marsh 40 acres off of the west end of the 98-acre tract. Both deeds were properly recorded. The appellants instituted this suit on July 23, 1973.

The appellees claim legal title through a tax suit. The legal title relied on by appel-lees as stated in their brief is as follows:

1. Sam and Victoria Browning are the common sources of title of all parties pursuant to stipulation.

2. Sam Browning died in 1925 and the facts concerning his heirship (except with respect to the children of Victoria Browning born prior to their marriage in 1909) were stipulated.

3. In Cause No. 4078 in the 7th Judicial District Court of Smith County, Texas, tax foreclosure was had against Victoria Browning and the unknown heirs of Sam Browning, deceased, and on August 6,1940, a Sheriff’s deed covering the lands in controversy was executed by J. R. Beasley to N. H. Jarvis and J. L. Jarvis.

4. By deed dated August, 1942, N. H. Jarvis and J. L. Jarvis deeded the lands in controversy to Bryan Marsh.

5. Bryan Marsh died August 23, 1951, and by his will probated in Cause No. 9043 in the County Court of Smith County, Texas, devised his entire estate to his wife, Gladys Caswell Marsh.

6. On January 28, 1955, a suit in trespass to try title was filed by George Brown-

. ing against Gladys Marsh, a feme sole, and Margaret Caswell Marsh, a minor, being Cause No. 22,452-A in the 7th Judicial District Court of Smith County, Texas.

7. A disclaimer was filed by Gladys Cas-well Marsh and Margaret Caswell Marsh disclaiming “any right, title and interest in and to the land and premises described in Plaintiffs’ Petition herein” and judgment was rendered for George Browning.

8. On August 4, 1956, George Browning conveyed the lands in controversy to Jimmie West, Trustee.

9. In January, 1963, Jimmie West, Trustee, conveyed the lands in controversy to Terry Graham, L. E. Bryant, N. H. Jarvis, J. L. Jarvis and Morris Dorbandt.

10. On September 23, 1968, N. H. Jarvis and J. L. Jarvis conveyed their interest in the land in controversy to Morris Dorbandt.

11. On October 28, 1968, Terry Graham, Morris Dorbandt and L. E. Bryant conveyed the lands in controversy to B. J. Hubbard and wife, Isabella Hubbard, reserving a ½ mineral interest.

12. On February 28, 1970, B. J. and Isabella Hubbard conveyed the lands in controversy to Gene Richard West and wife, Norma Jean West.

13. Thereafter Gene Richard West and Norma Jean West executed conveyances of parts of the premises in controversy to other appellees by warranty deeds.

Both the appellants and the appellees also rely on periods of adverse possession alleged to have been perfected under the 10-year statute. Other heirs of Sam Browning entered this suit on September 25, 1974, as intervenors. Their interests are of the same nature as the other appellants except with reference to the time period of halting appellees’ limitation period, and accordingly the intervenors will be referred to as appellants hereafter.

In 1937, the 58-acre tract in question was made the subject of a suit to foreclose on delinquent taxes instituted by the State of Texas against Victoria Browning and the unknown heirs of Sam Browning, deceased. Judgment was subsequently rendered for the State and a public sale was held, a sheriff’s deed being given to J. L. and N. H. Jarvis on August 6, 1940. The judgment entered in the tax foreclosure suit contained the following description of the land:

“58 acres of land out of the Stillwell Box Survey, Abstract No. 168, being same land conveyed to Sam Browning by H. B. Marsh, by deed dated February 5th, 1925, recorded in vol. 174 page 389 deed records, Smith County, Texas.”

The deed referred to in the above description, executed by H. B. Marsh to Sam Browning, conveyed 98 acres describing said 98 acres by a proper and sufficient description. On this same day, February 25, 1925 [erroneously designated February 5th, 1925, in judgment description], Sam Browning conveyed back by a second deed 40 acres of the 98 acres that was conveyed to him in the first deed that was referred to in the judgment. It should be noted that neither deed either expressly or impliedly referred to each other.

The property description in the judgment describes the 58-acre tract as “ . the same land conveyed to Sam Browning by H. B. Marsh . . . .” (Emphasis ours.) We agree that the 58 acres in question is indeed the “same land” as referred to in the prior deed. The deed does not state it is all the land conveyed to Sam Browning by H. B. Marsh. It merely says it is the “same land.” It has been held that such a reference to the “same land” does not necessarily encompass the whole referred to in the prior deed and therefore no ambiguity is created. Schaffer v. Heiden-keimer, 43 Tex.Civ.App. 366, 96 S.W. 61 (1906, writ ref’d). The deed does not say that the metes and bounds description of the 58 acres is described in the previous deed from Marsh to Browning. It was the “same land,” but there is nothing to indicate that the conveyance was to cover all of it. It is clear only 58 acres was intended to be conveyed. Since the description is not ambiguous, this leaves us with the question of the location of the specific 58 acres we are concerned with on this 98-aere tract.

The law is well settled in this state that a description of land in a deed in order to be sufficient must meet the following test set out in Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703, 705 (1935).

“The true rule, as deduced from the authorities, seems to be that this description should be so definite and certain upon the face of the instrument itself, or by other writing referred to, that the land can be identified with reasonable certainty.”

A description in a deed is not required to be mathematically certain, but only reasonably certain so as to enable a party familiar with the locality to identify the premises to be conveyed, to the exclusion of others. Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247 (1955); 19 Tex.Jur.2d sec. 124. From the face of the description contained in this judgment and the deed referred to therein, the description cannot be said to be so reasonably certain as to enable a party to identify which particular 58 acres of this 98-acre tract was intended to be conveyed. For this reason, we hold the description void.

A deed is not void for uncertainty unless the description cannot be made to apply to any definite piece of land even with the aid of extrinsic evidence. Lobit v. Crouch, 298 S.W.2d 110, 113 (Tex.Civ.App.-Austin 1956, err. ref’d n.r.e.); Kriders v. Hempftling, 137 S.W.2d 83, 85 (Tex.Civ. App.-Galveston 1940, no writ). But the nucleus of a valid description must exist from the instrument itself or a writing referred to therein before extrinsic evidence will be allowed in order to explain the descriptive words and identify the land. Gates v. Ash-er, supra; Smith v. Sorelle, supra. This rule applies with equal effect to a description of property contained in a judgment. Greer v. Greer, 144 Tex. 528,191 S.W.2d 848 (1946). In our opinion, the nucleus of a valid description is not present in the deed description contained in the judgment before us. Accordingly, we hold such judgment to be void and the Sheriff’s deed executed in carrying out such judgment is likewise void.

In holding that the tax foreclosure judgment is void, we therefore do not reach appellants’ Point of Error No. 2 which questions the validity of the judgment upon grounds of an allegedly defective citation.

Turning to appellants’ third point of error, in 1955, one George Browning instituted a trespass to try title suit against Gladys Marsh and Margaret Caswell Marsh. Any title resting in either of the Marshes was derived by virtue of claiming through the tax foreclosure sale previously discussed. Gladys Marsh and Margaret Caswell Marsh filed a disclaimer to any title, and judgment was rendered for George Browning. The appellees in this case claim through George Browning.

None of the appellants in this case were parties to this 1955 trespass to try title suit. Therefore, the 1955 suit has no effect on their claims to title since a judgment in a trespass to try title suit is only effective as to parties that were before the court or as to parties that claim from, through, or under parties before the court. Tex.Rev.Civ.Stat.Ann. art. 7391 (1960); 56 Tex.Jur.2d sec. 142; 34 Tex.Jur.2d sec. 542; Richardson v. Reid, 188 S.W.2d 248 (Tex. Civ.App.-Beaumont 1945, no writ). Moreover, in view of our holding sustaining appellants’ first point of error that Gladys Marsh and Margaret Caswell Marsh derived no interest in this land through the tax foreclosure sale, a trespass to try title suit adjudicating their title is immaterial to a disposition of this case. Accordingly, appellants’ third point of error is overruled.

The question requiring the most lengthy discussion is appellants’ Point of Error No. 4. Here, the appellants assert that “The District Court erred in rendering judgment for the defendants based on the jury’s answers to Special Issues Nos. 3 and 5 as there was insufficient evidence to establish any ten year limitation in favor of the defendants.” The appellees (defendants) in their brief assume that Special Issue No. 3 was disregarded. A discrepancy arises from the trial court’s judgment stating that “It is therefore Ordered, Adjudged and Decreed that Plaintiffs Motion to Disregard Findings on Special Issues be and the same is hereby overruled, except as to paragraph II relating to Special Issues 3, 4 & 6 . . .” (Emphasis ours.) Paragraph II of the appellants’ Motion to Disregard does not refer to Special Issue No. 3, and it is the opinion of this court that such issue was not intended by the trial court to be disregarded. In any event, our holding on Point of Error No. 4 will make any discrepancy immaterial.

Concerning Point of Error No. 4, the appellants contend that there was insufficient evidence to establish any limitation title in favor of the appellees. Appellants made no motion for new trial as required in Rule 324, Tex.R.Civ.P.; therefore the appellants have waived any error concerning the factual sufficiency of the evidence concerning Special Issues 3 and 5. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1950); Miller v. Miller, 274 S.W.2d 762 (Tex.Civ.App.-San Antonio 1954, writ ref’d); Calvert, 38 Tex. L.Rev. 361, 365.

The appellants did file a motion to disregard the jury findings on Special Issues 3 and 5. No motion for new trial is necessary to complain on appeal of the denial of a motion to disregard jury findings. Tex.R.Civ.P. 324. A motion to disregard jury findings can only be granted where there is no evidence to support such a finding or when such finding is immaterial. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966); Smith v. Texas Pipeline Company, 455 S.W.2d 346, 351 (Tex.Civ.App.-Corpus Christi 1970, ref’d n.r. e.). The only point of error preserved by the appellants on Special Issues 3 and 5 is a “no evidence” point.

The Texas Supreme Court has held that a point of error complaining of the denial of a motion to disregard jury findings because of insufficiency of the evidence is subject to only one construction; that construction being that there is no evidence to support the jury’s finding. Garza v. Alviar, supra; Christy v. Blades, 448 S.W.2d 107, 112 (Tex.1969); Owens v. Rogers, 446 S.W.2d 865, 866 (Tex.1969); McDonald v. New York Central Mutual Fire Ins. Co., 380 S.W.2d 545, 548 (Tex. 1964). Appellants’ fourth point of error is general in nature in that it does not specifically refer to the denial of their motion to disregard jury findings. However, after reading the argument contained under such point, we find this is the complaint that was intended to be urged by the appellants. Since we can determine what was urged, we will consider the point. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943); Brungs v. Consolidated Plan Service, Inc., 529 S.W.2d 79, 81-82 (Tex.Civ. App.-San Antonio 1975, writ ref’d n.r.e.).

The appellees’ adverse possession inquired about in Special Issues 3 and 5 depends entirely upon the actions of Terry Graham. Mr. Graham bought the interests of more than one heir of Sam Browning prior to the period of time we are concerned with on appellees’ adverse possession claim. We have previously held that the tax sale involving this land was void; therefore, the heirs of Sam Browning did indeed have a legal interest in this land capable of being sold. By buying this interest, Mr. Graham became a cotenant with the rest of the Browning heirs that held an interest in this property.

Mr. Graham gave direct testimony that he never gave notice to any of the Browning heirs that he intended to assert an adverse claim to all of the land in question. Without such notice, or acts sufficient to give such notice, Mr. Graham cannot be said to be holding adversely to his fellow cotenants. Adams v. Duncan, 147 Tex. 332, 215 S.W.2d 599 (Tex.1948). In determining whether there is evidence to support the jury’s findings on Special Issues 3 and 5, we have considered only the evidence and the inferences tending to support the findings and have disregarded all evidence and inferences to the contrary. Garza v. Alviar, supra. Still, we feel compelled to sustain appellants’ fourth point of error and we hold that there was no evidence to establish a 10-year statute of limitation title in the appellees.

Appellants’ fifth point of error seeks to overturn a jury finding that four of the appellants were not the children of Sam Browning. We feel it is apparent from the record that there is some probative evidence to support this jury finding. However, any interest these four appellants might receive as heirs of their mother, Victoria Browning, is not affected by this jury finding since the land in question was acquired as community property of Sam and Victoria Browning. Accordingly, appellants’ fifth point of error is overruled.

Appellants’ sixth point of error concerning the perfection of a 10-year statute of limitations title by appellants is overruled. The record reflects that such title was not perfected.

In summary, we hold that the sheriff’s deed relied on by the appellees was void and therefore the legal title to the land in question remained in Sam and Victoria Browning and we further hold that neither appellants nor appellees perfected title by virtue of the ten-year statute of limitations. Based on these findings, we hold that the undivided one-half community interest of Victoria Browning descended to her heirs as per the stipulation of heirship entered into by and between the parties to this suit; that the undivided one-half community interest of Sam Browning descended to his heirs as per the stipulation of heirship entered into by and between the parties. We further hold in accordance with the verdict that Hamilton Browning, Lorene Browning Parker, Juanaitter Browning Lawrence, Mary L. Browning Taylor, Linberg Browning, Traver Browning Taylor, and the unknown heirs of John Browning, deceased, were not the children of Sam Browning and that they inherited no title to the land in question from and through Sam Browning, deceased.

Accordingly, the judgment of the trial court is reversed. Ordinarily we would be required to render the judgment that should have been rendered by the trial court; however, in view of the vast number of parties and the complicated stipulations entered into by the various parties to this suit, we will not attempt to render judgment, but will remand the cause to the trial court with instructions to render a judgment consistent with this opinion and consistent with the stipulations entered into by the parties. All costs are hereby adjudged against the appellees.

Reversed and remanded with instructions to enter judgment in favor of appellants consistent with this opinion and the stipulations of the parties.

McKAY, J., not participating.


text:
    Annie Laurie CLABAUGH, Appellant, v. CITY OF TYLER, Texas, Appellee.
    No. 1067.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 27, 1977.

      Ben E. Jarvis, James R. Lewis, Tyler, for appellant.
    Robert R. Schwartz, Tyler, for appellee.
   DUNAGAN, Chief Justice.

This appeal is from a summary judgment in favor of appellee.

The judgment was based upon appellant’s second amended original petition; her first supplemental petition; and appellee’s fourth amended original answer, together with defendant-appellee’s admissions of fact under Rule 169, T.R.C.P., and stipulations of the parties approved by the court.

Appellant, plaintiff below, sought rescission of her deed of July 14,1965, to the City of Tyler covering 30.559 acres of her land, sought by the City of Tyler for use in connection with Lake Tyler East, then or shortly thereafter under construction. As grounds for such relief, she alleged facts in detail in support of her claim of (1) mutual mistake; or (2) constructive fraud; and/or (3) duress and coercion.

Appellant has brought forward three points of error by which she alleges that the court erred in granting appellee’s motion for summary judgment because the summary judgment proof failed to establish as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of her cause of action and therefore she was entitled to a trial on the merits. Appellant contends that the summary judgment evidence raises such issues of fact as to whether appellant, in executing the deed in question, acted as the result of (1) mutual mistake; or (2) as the result of misrepresentations of material facts; and/or (3) as the result of duress and coercion.

Appellant in her second amended original petition alleged the execution and delivery of the deed in question for fee title; that the deed was executed as the result of mutual mistake, or constructive fraud; that the substance of the mutual mistake was that both parties to the deed erroneously assumed that the City of Tyler did then possess the presently-exercisable power to acquire a fee simple title to plaintiff-appellant’s land by a proceeding in court; that in the alternative, if the City at the time knew or should have known that it did not then have such power, then the representations to the effect it did have that power and authority were false and misleading as to a material matter; and in any event such representations were intended to induce, and did induce appellant to sign and deliver the deed, which she would not have done, but for such representations, which were not true.

Appellant in a further alternative alleged that if she was not entitled to have the relief for which she sued on the aforesaid premises, then and in any event, she was entitled to cancellation of said deed because of such representations, and the excessively-demanding conduct on the part of the land acquisition agent of the City to a degree that placed appellant under duress and coercion and mental restraint of such degree and character as to overcome her will and cause her to comply with the agent’s demands, when otherwise, she would not have given the deed at all, and in so doing, she acted very much against and contrary to her will.

The City of Tyler, appellee, made admissions of fact under Rule 169, T.R.C.P., that after a careful search of the official minutes of the City of Tyler, prior to July 14, 1965, no motion, resolution or ordinance was found in which the term “fee title” or “fee simple title” was used in connection with a declaration or expression of a purpose of intention to acquire any such title in any land sought for use in connection with the construction and operation of Lake Tyler East municipal water reservoir.

The parties stipulated as to the facts deemed to be germane and relevant to the disposition of the motion for summary judgment, which in part are as follows:

“On October 1, 1954, the City of Tyler, . adopted a resolution, . specifically finding a necessity for providing an additional water supply for the City of Tyler.
“On June 4, 1965, the City of Tyler, . adopted a resolution . authorizing condemnation of certain land as in said resolution specifically identified” including appellant’s land here involved.
“On the date of July 14,1965, and prior to said date, BEN POINTS was the authorized agent of the City of Tyler, to act for the City within the scope of his authority as hereinafter stated, to obtain the execution of conveyances by landowners owning certain parcels of land to the City of Tyler for use in connection with the construction, maintenance and use of the Lake Tyler East municipal water reservoir, the same being the additional water supply project to which the Resolution of October 11, 1954, was related.
“As such Agent for the City of Tyler, BEN POINTS was charged with the duty and given the authority to communicate personally with the record owners of the numerous and various tracts and parcels of land being sought to be acquired by the City for said purposes of such lake and water reservoir, including the Plaintiff herein, ANNIE LAURIE CLA-BAUGH, then the owner in fee simple of the tract of land described in the deed ., finally executed on July 14, 1965. In the performance of this duty as such Agent, BEN POINTS, acting as so authorized and directed, did communicate with said Plaintiff . . . .
Ben Points in the exercise of such authority so delegated to him “on more than one occasion prior to July 14, 1965, did communicate with Plaintiff” either in person or by telephone “requesting her to execute said deed.” In addition to exhibiting a map to plaintiff “reflecting the location and boundaries of that portion of her land which the City had determined to acquire for the purposes of said lake”, Ben Points also exhibited to Mrs. Cla-baugh an instrument “which she could sign and thereby agree to accept the offer of the City for the purchase of said portion of her land, and further exhibited to her the form of the deed he requested her to execute . . . .”
“Plaintiff executed the agreement . . Plaintiff subsequently executed the deed ... on July 14, 1965.”
That in so acting for the City of Tyler, said agent represented to appellant “that the City of Tyler then had the power and authority to take her to court and thereby obtain the title and estate in and to her said land as in said form of deed provided; and further represented that unless she executed the said agreement and the deed, the City would proceed to court to take such title and estate in said land.”
That in making such representations and statements said agent acted in good faith belief that the representations so made were true. That “said representations were made with the intention that Plaintiff would be and she was thereby induced to accept and act thereon as requested; that BEN POINTS then understood and intended the Plaintiff would understand that his said representations were representations of fact.”
That plaintiff did so understand “and believed that the City did indeed have the power and the intention to take from her said title and estate . . . by a proceeding in court . . ” and in so believing, executed and delivered the deed, since otherwise she would not have done so.
That prior to on or about November 1, 1969, the City of Tyler had not passed or adopted any resolution or ordinance sufficient in law to authorize the condemnation of the fee simple title in and to any land sought to be acquired by the City for use in connection with Lake Tyler East.

Appellant contends that Ben Points’ statements to Mrs. Clabaugh “that the City of Tyler then had the power and authority to take her to court and thereby obtain the title and estate in and to her said lands” and “that unless she executed the said agreement and the Deed, the City would proceed to court to take such title and estate in said land” were not true but false.

Appellant relies upon our decision in Stirman v. City of Tyler, 443 S.W.2d 354 (1969) in support of her contention that the City of Tyler did not then have a lawful right or authority to condemn the fee simple title to her land because at that time the City had not so affirmatively expressed such desire and therefore the statements of Ben Points were not true but false.

Art. 1109, V.T.C.S., provides:

“5. Any such city may acquire the fee simple title to any land or property when same is expressed in the resolution ordering said condemnation proceedings by the governing body.” (Emphasis supplied.)

Art. 1109b, V.T.C.S., provides:

“. . . the power of eminent domain hereby conferred shall include the right of the governing authority, when so expressed, to take the fee in the lands so condemned . . . .” (Emphasis supplied.)

Art. 1175, sec. 15, V.T.C.S., provides:

“. . . The power of eminent domain hereby conferred shall include the right of the governing authority, when so expressed, to take the fee in the lands so condemned . . . .”

We did not hold in the Stirman case that the City of Tyler had no lawful right or authority to condemn the fee simple title to the land there involved but only that the City never exercised its legislative power, right or authority granted it by expressing its desire to condemn the fee simple title and therefore the court’s authority was limited to, the taking of an easement only. Sulphur Springs Water District v. Hawkins, 519 S.W.2d 272 (Tex.Civ.App.—Tyler 1975, n. w. h.).

It is conceded by all parties that at the time Ben Points made the statements complained of here that the City had not made an affirmative expression of a desire to condemn the fee simple title. Since the City however did have the legislative power and authority to institute condemnation proceedings in any court of competent jurisdiction against Mrs. Clabaugh for fee simple title to the land in question, we do not deem the statements made by Mr. Points to be false, even though at the time of these statements the City had not exercised its legislative power to do so. This was relatively a simple matter for the City to do. We think it is rather obvious from the record that the City intended to do whatever was necessary to take the land by condemnation proceedings, including the fee simple title thereto if Mrs. Clabaugh had not executed the agreement and deed. Neither do we deem the statements to be threatening. It seems to us that Mr. Points was only trying to be helpful by fully informing her as to what could happen if she did not execute these instruments so that she might make her choice of action which hopefully would be the choice she made. An irregularity in the procedure such as in the Stirman case because of the absence of a resolution or other valid action by the City Commission of Tyler expressing the City’s desire to condemn the fee does not make the statement made at the time, believed to be true and was in fact true, as a matter of law, fraudulent or false.

The well established rule is that a summary judgment should only be granted if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Prestegord v. Glenn, 441 S.W.2d 185 (Tex.1969); Rule 166-A(c), T.R. C.P. The ultimate question is whether the summary judgment proof establishes that there is no genuine issue as to any material fact. Rule 166-A(c), supra. As we view the record, there is nothing in the summary judgment proof raising a disputed issue of material fact. It therefore follows that the appellee was entitled to a summary judgment as a matter of law.

The judgment of the trial court is affirmed.

MeKAY, J., not participating.


author: O’QUINN, Justice.

text:
    C. Grady CATES et al., Appellants, v. Don WOODY et al., Appellees.
    No. 12623.
    Court of Civil Appeals of Texas, Austin.
    Nov. 2, 1977.
    Rehearing Denied Nov. 30, 1977.
    Steven G. Condos, Dallas, for appellants.
    Phil Mockford, Austin, for appellees.
   O’QUINN, Justice.

All parties in this action, as shareholders in Orleans Harbour, Inc., a Texas corporation, entered into written guaranty of the corporation’s obligations to the Capital National Bank of Austin.

Two of the shareholders, who pursuant to the guaranty agreement paid the corporation’s obligations, brought this suit in Travis County to collect from the remaining shareholders the proportionate sums thereby paid the bank in behalf of the defendant shareholders. The defendants, residents of Dallas County, filed their plea of privilege to be sued in the county of their residence.

The trial court overruled the plea of privilege, and defendants have appealed. We will affirm the judgment of the trial court.

Original shareholders in the corporation were Wroe Owens, Steve Harris, Ed Bridges, and H. J. “Doc” Blanchard, all residents of Austin, Don Woody, Alan W. Cates and C. Grady Cates, residents of Dallas. Harris subsequently sold his interest to Owens and Woody, and other adjustments of ownership not pertinent to issues in this appeal have taken place since the original arrangement of interests.

Orleans Harbour undertook development and sale of condominiums on the shores of Lake Austin, in the course of which the corporation borrowed approximately $430,-000 from the Capital National Bank in June of 1974. The note given the bank made Austin, in Travis County, the place of payment and provided that the bank take a deed of trust on improvements to be constructed as security. Prior to execution of the note, the seven shareholders in January of 1974 had executed and delivered to the bank written guaranty by which they undertook to guarantee all subsequent obligations owing by the corporation to the bank. Each shareholder assumed personal liability to the extent of proportional individual ownership in the corporation. The guaranty agreement, like the note, was made performable in Travis County.

The Corporation experienced financial difficulties, following which all funds derived from sale of the security held by the bank were applied to the unpaid balance on the note, but leaving a deficiency in excess of $50,000. The bank made demand for payment. Woody and Owens paid the entire obligation, after appellants, C. Grady Cates and Alan W. Cates, had refused to pay their proportionate parts.

Upon payment to the bank by Woody and Owens, the Capital National Bank transferred and assigned its interest in, and the rights under, the promissory note and accompanying guaranty agreement. Thereafter Woody and Owens in December of 1976 brought suit on the debt for the proportionate part appellants refused to pay.

In addition to seeking recovery of $25,-562.05 on the Capital National Bank obligation, Woody and Owens also sought from appellants reimbursement of $12,616.38, representing fifty percent of a similar obligation to the American National Bank of Austin which had become due and likewise had been paid by shareholders other than appellants in this appeal. The debt to the American National Bank appears not to have been covered by a written guaranty agreement, as in the transaction with the Capital National, but plaintiffs below claimed that the parties were agreed on the terms of a guaranty agreement.

Appellants bring two points of error. Under the second point appellants contend that as a matter of law this is a suit for contribution and not an action on a contract in writing under section 5 of Article 1995, V.A.C.S. (1964).

It is settled that when the surety pays the debt of the principal, he may thereafter elect to bring an action on as-sumpsit or on the obligation implied to be reimbursed by the principal, or may prosecute an action on the debt itself, and in either case the surety stands in the shoes of the original creditor as to any securities and rights of priority. Highlands Gable Television, Inc. v. Wong, 547 S.W.2d 324, 327 (Tex.Civ.App. Austin 1977, writ ref’d n.r.e.), following Fox v. Kroeger, 119 Tex. 511, 35 S.W.2d 679, 681 (1931). In this case appellees Woody and Owens brought their suit under the written guaranty agreement, a contract calling for performance in Travis County, and in this role appellees were in the same position as that occupied by the bank. Appellees properly brought this action in Travis County.

Under their first point, appellants contend that appellees had the burden to prove venue as to the claim of the American National Bank, which was not secured by a written guaranty agreement, in order to maintain venue in Travis County. This position by appellants is untenable and is contrary to the established rule that has become known as the “Middlebrook Doctrine.”

The Supreme Court of 1894 held that in a suit brought on three notes, two payable in the county in which the action was brought and the third note providing no place of payment, it was proper “in order to avoid a multiplicity of suits,” to embrace in the same action all three notes. Middlebrook v. David Bradley Manufacturing Company, 86 Tex. 706, 26 S.W. 935 (1894).

The “Middlebrook Doctrine” has been reaffirmed by the Supreme Court in Stevens v. Willson, 120 Tex. 584, 39 S.W.2d 1088 (1931) and in Pecos Valley Southern Railway Company v. Parkhill Produce Company, 163 Tex. 88, 352 S.W.2d 723 (1961). The doctrine finds application in numerous decisions, of particular note being Cranbrook Corporation v. Wright, 469 S.W.2d 324, 326 (Tex.Civ.App. Houston (14th) 1971, no writ); Beach City v. State ex rel. City of Baytown, 473 S.W.2d 656, 659 (Tex.Civ.App. Houston (14th) 1971, writ dism’d); Baxter v. Wetzel, 511 S.W.2d 540 (Tex.Civ.App. El Paso 1974, no writ).

Appellants’ points of error are overruled. Judgment of the trial court overruling the plea of privilege is affirmed.