author: JAMES, Justice.

text:
    AGRISTOR CREDIT CORPORATION, Appellant, v. B. T. DONAHOE and Norma J. Donahoe, Appellees.
    No. 5839.
    Court of Civil Appeals of Texas, Waco.
    June 8, 1978.
    Rehearing Denied June 29, 1978.

      Richard M. Roberg, Milwaukee, Wis., William T. Allison, II and Joel B. Sheffield (on Appeal only), Ramsey & Allison, Sulphur Springs, Joseph Robert Riley (on Appeal only), Segrest, Mills, Cameron & Riley, Waco, for appellant.
    Mac L. Bennett, Jr., Bennett & Bennett, Normangee, Maurice G. Walton (on Appeal only), Haley, Fulbright, Winniford, Bice & Davis, Waco, for appellees.
   OPINION

JAMES, Justice.

This is an appeal from a summary judgment, containing problems concerning usury and the application of Rule 169, Texas Rules of Civil Procedure.

Plaintiff-Appellant Agristor Credit Corporation originally brought this suit against Defendant-Appellees B. T. Donahoe and wife Norma J. Donahoe for $35,244.26. plus attorneys’ fees, for alleged default in payment upon two conditional sales contracts involving the sale to the Donahoes of dairy equipment consisting of one 20' by 80' Harvestore structure (an oxygen-free silo), one unloader, one grinder blower with industrial engine, and related equipment. Plaintiff’s Original Petition (later superseded by amended pleadings) alleged that on March 11, 1975, the Donahoes executed the two conditional sale installment contracts under the terms of which the Donahoes contracted to pay to Brazos Valley Harve-store Systems, Inc. (the assignor of the contracts to Agristor) the amounts stated therein “together with accrued interest at the rate of 15.95%” and attorneys’ fees — in the event of default.

The Donahoes filed their answer, pleading, among other defenses, the defense of usury and seeking an offset or counterclaim on the principal indebtedness in double the amount of alleged usurious interest, said double amount being $68,853.36 plus attorneys’ fees. The Donahoes also brought a cross-action against Brazos Valley Harve-store Systems, Inc. (hereinafter called “Harvestore”), the selling agent, which in turn sought indemnity of and from Agri-stor. More specifically, the Donahoes filed a cross-action against both Agristor and Harvestore, seeking judgment against both Cross-Defendants, jointly and severally, for $68,853.36, same being double the amount of alleged usurious interest charged in said two contracts.

The Donahoes submitted their request for admissions to Agristor by mailing a copy of same to Agristor’s attorney of record by certified mail, return receipt requested, and by filing a true copy of same with the clerk of the court, all as prescribed by Rule 169. Such request was so mailed and filed on May 4,1977, and was admittedly received in the office of Agristor’s attorney of record on May 5, 1977. The request provided that answers were to be filed within eleven (11) days from the date of service, to wit, by May 16, 1977. Neither Agristor nor its attorney of record made any answers or response of any kind to said request for admissions whereupon the Donahoes filed a motion on May 19, 1977, to deem the request for admissions admitted and at the same time moved for partial summary judgment on their counterclaim, and to sever the remainder of the cause. A hearing was set by the trial court on these matters for May 31, 1977, for which hearing notice was given by certified mail to Agristor’s attorney of record on May 18, 1977. On May 27,1977, Agristor filed a pleading entitled, “Opposition to B. T. Donahoe et ux, Motion for Summary Judgment and Severance and to Deem Facts Admitted,” in which pleading Agristor asserts that on May 18, 1977, it filed a Motion for Extension of Time in which to answer the Dona-hoe requests for admissions. However, we have carefully examined the record and find no such request for extension of time. On May 17, 1977, Agristor filed a request for extension of time in which to answer Harvestore’s requests for admissions, but nothing is recited therein concerning the Donahoe requests for admissions. No supporting affidavits were attached to this “opposition” pleading filed by Agristor on May 27, 1977; and for the reasons stated above, we can safely say that no request for extension of time to file answers, or to permit late filing to request for the Dona-hoe admissions was filed.

On May 31, 1977, the trial court held a hearing, after which an order was entered deeming the Donahoe’s request for admissions admitted. The trial court took the Donahoe motion for partial summary judgment under advisement; and on August 9, 1977, Agristor filed its motion for summary judgment against the Donahoes for the amounts originally sued for.

Thereafter, on August 22, 1977, the trial court after hearing, found that there was no genuine issue of fact, and thereupon entered a summary judgment as follows: (1) in favor of Agristor against the Dona-hoes for $31,729.09; (2) in favor of the Donahoes against Agristor on the Dona-hoes’ usury claim for $68,853.36; (3) then the trial court offset these amounts and entered summary judgment in favor of the Donahoes against Agristor for the net amount of $37,124.27; (4) the trial court severed the Donahoes’ claim for attorneys’ fees and their claim against Harvestore. From this judgment, Agristor appeals upon six points of error, two of which contain subpoints. We sustain Appellant’s sixth point as more particularly hereinafter discussed and thereby reform the trial court’s judgment; and as reformed, we affirm same. It necessarily follows that we overrule all of the Appellant’s remaining points and contentions.

Appellant Agristor contends that the trial court abused its discretion in deeming admitted the Appellees’ Request for Admissions of Fact. We do not agree. As stated, Appellees’ request for admissions was served upon Appellant’s counsel on May 5, 1977. The requests provided that answers were to be filed within eleven (11) days from the date of service. When no answers were filed within the time specified, Appel-lees filed a motion on May 19,1977, to deem the request for admissions admitted and for partial summary judgment. On May 31, 1977, the date set by the trial court for hearing, after proper notice to Appellant, the trial court entered its order deeming the request for admissions admitted. It is significant that Appellant’s counsel never filed a motion to extend time to file answers to the request for admissions, nor did he file late answers to the request for admissions; this being so even though the trial court did not enter the summary judgment until August 22, 1977, over two and a half months after the request for admissions had been deemed admitted.

Appellant’s counsel admits that the notice of the request for admissions was received in his office on or about May 5,1977, by his secretary; however, Appellant’s counsel asserts that his secretary never informed him of such notice.

Our Supreme Court has held that there is some discretion lodged in the trial court in the enforcement of Rule 169, relative to deeming requests for admissions admitted. Fireman’s Fund Ins. Co. v. Commercial Standard Ins. Co. (Tex.1972) 490 S.W.2d 818, 825; Sanders v. Harder (1950) 148 Tex. 593, 227 S.W.2d 206, 208.

In the case at bar, since the Appellant not only failed to file answers to the request for admissions but also failed to file a motion for extension of time prior to May 31,1977, the date the trial court ordered the request deemed admitted, we cannot say the trial court abused its discretion in deeming the request admitted. See Lozano v. Kazen (Eastland, Civ.App.1958) 313 S.W.2d 894, 897, no writ; Hill v. Caparino (Houston 1st, Civ.App.1963) 370 S.W.2d 760, 761, no writ. Moreover, as of August 22, 1977, the date of entry of the summary judgment, Appellant still had filed no answers to the request for admissions.

As hereinbefore pointed out, Appellant’s counsel’s stated reason or excuse for failure to answer the request for admissions was due to the fact that his secretary did not tell him about it, and therefore he did not know about such request for admissions. We do not believe this argument has merit, because it is well-settled that the negligence, inadvertence or mistake of the attorney is imputed to his client. Petro-Chemical Transport, Inc. v. Carroll (Tex.1974) 514 S.W.2d 240, 246; Reynolds v. Volunteer State Life Ins. Co. (Eastland, Civ.App.1935) 80 S.W.2d 1087, 1094, writ refused. Also see Scheffer v. Chron (Beaumont, Civ.App. 1977) 560 S.W.2d 419, 420. And by applying this same rule of law that the negligence, inadvertence, or mistake of the agent is imputed to the principal (which obtains in the client-attorney relationship), we hold that the negligence, inadvertence, or mistake of Appellant’s counsel’s secretary is imputed to Appellant’s counsel, so that Appellant’s counsel is charged with such negligence, inadvertence, or mistake. See Traders & General Ins. Co. v. Burton (Fort Worth, Civ.App.1954) 272 S.W.2d 166, 169, NRE.

We next proceed to the legal effect of the request for admissions deemed admitted. We have two contracts in question executed by the Donahoes, payble to Harvestore, and assigned to Appellant Agristor, which we will call respectively, “Contract A” and “Contract B.” Contract A recited the “Amount Financed” to be $26,550.00, the “Finance Charge” to be $33,191.28, the “Total of Payments” to be $59,741.28, the “Annual Percentage Rate” to be 15.95%; said “Total of Payments” being payable in 144 monthly installments of $414.87 each.

Contract B recites the “Amount Financed” to be $2,700.00, the “Finance Charge” to be $1,235.40, the “Total of Payments” to be $3,935.40, the “Annual Percentage Rate” to be 15.95%; said “Total of Payments” being payable in 60 monthly installments of $65.59 each.

The requests for admissions deemed admitted are fifty in number, and establish that: Appellant’s district manager either prepared or knew of the preparation of Contract A; the form contracts used to prepare both contracts were furnished by Appellant Agristor to Harvestore for the express purpose of execution by the Dona-hoes and then for assignment to Appellant; that in addition to the form contracts, Appellant furnished to Harvestore interest charts which showed the manner in which interest could be computed at the rate of 15.95% per annum; that using the interest charts provided to compute interest on the sum of $26,550.00 at the rate of 15.95% for a period of 144 months would make for monthly payments of $414.87 each; that the interest charts provided by Appellant to Harvestore were used to prepare the amortization schedule (attached to the request for admissions), and that such amortization schedule showed the amortized repayment of $26,550.00 over 144 months at an annual interest rate of 15.95%; that assuming the Donahoes owed Harvestore $26,550.00 and the sum was to be repaid together with interest at 15.95% per annum over 144 months, the monthly installments would be $414.87 each; that if it is assumed the Donahoes owed Harvestore $2,700.00 and this sum was to be repaid together with interest thereon at the rate of 15.95% per annum over 60 months, the monthly installments would be $65.59 each; moreover, the principal sum of Contract A was $26,550.00 and the finance charge on this sum was $33,191.28, and the finance charge was computed by using the aforesaid interest charts and calculating interest on said $26,550.00 at the rate of 15.95% per annum; that under Contract B the amount financed was $2,700.00 and the finance charge on this sum was $1,235.40, which finance charge was computed by using the aforesaid interest charts and calculating interest on the $2,700.00 at the rate of 15.95% per annum. Finally, it was admitted that prior to March 11, 1975, the date the contracts were executed by the Donahoes, Appellant was aware that the maximum interest permissible to be charged individuals in Texas was 10% per annum and that with this knowledge Appellant attempted to evade the usury laws of Texas by calling Contracts A and B installment retail sales contracts.

In short, the admissions in question established every element of the Appellee Dona-hoes’ cause of action for usury, and established that both contracts were usurious as a matter of law.

It is well-settled that the effect of a party’s failure to answer inquiries in adverse party’s written request for admission or denial of relevant facts made under Rule 169 is comparable to a “legal admission” made in the applicable pleadings of a party, so as to preclude his denial of such facts on the trial of the case. Masten v. Masten (Fort Worth, Civ.App.1942) 165 S.W.2d 225, 228, writ refused. Also see Frierson v. Modem Mutual Health & Accident Ins. Co. (Waco, Civ.App.1943) 172 S.W.2d 389, 393, refused W.O.M.; Brooks v. Eaton Yale & Towne, Inc. (Waco, Civ.App.1971) 474 S.W.2d 321, 323, no writ; Weaver v. Weaver (Fort Worth, Civ.App.1943) 171 S.W.2d 898, 901, ref. W.O.M.; Carpenter v. Globe Leasing Inc. (Fort Worth, Civ.App.1967) 421 S.W.2d 413, 415, no writ; 45 Tex.Jur.2d “Pleading,” paragraph 97, pp. 543 et seq.

Appellant complains that several of the requests for admissions called for conclusions of law and were therefore improper requests under Rule 169, particularly those wherein Appellee requested that Appellant admit that the term “annual percentage rate” of 15.95% used in both contracts meant “interest.” We do not agree. These contracts were not usurious on their faces. Conceivably, the term “annual percentage rate” may have more than one meaning. It might mean a time-price differential as contended now by Appellant, in which event it would not be interest and therefore not usurious. See Rattan v. Commercial Credit Co. (Dallas, Civ.App.1939) 131 S.W.2d 399, writ refused; Hernandez v. United States Finance Co. (Waco, Civ.App.1969) 441 S.W.2d 859, writ dismissed. On the other hand it might mean “interest,” or a possible combination of time-price differential, interest, and/or other charges. The Appellee was entitled to know what the Appellant meant by the term “annual percentage rate” used by Appellant in both contracts, since this intended meaning by the use of this term is a fact matter. See Greever v. Persky (1942) 140 Tex. 64, 165 S.W.2d 709, 712; Moser v. John F. Buckner and Sons (Waco, Civ.App.1956) 292 S.W.2d 668, 671, NRE.

Next, appellant contends the summary judgment in favor of Appellees is improper because (Appellant says) it raised a material fact issue in its (Appellant’s) summary judgment proof as to whether Appellant had offered Appellees a choice between a cash price and a deferred payment price. We do not agree, because under the authority of the line of cases herein-above cited beginning with Masten v. Masten (Fort Worth, Civ.App.1942) 165 S.W.2d 225, writ refused, the legal admissions made by Appellant precluded Appellant from denying same. Indeed, Rule 169 contains this language: “Any matter admitted under this rule is conclusively established as to the party making the admission unless the court on motion permits withdrawal or amendment of the admission.” No such motion or withdrawal took place in the case at bar. Therefore, the summary judgment was proper.

Appellant has other points and contentions, all of which we have carefully considered, and we overrule all of same as being without merit with the sole exception of Appellant’s sixth and final point next discussed.

Finally, Appellant by its sixth and final point complains the trial court erred in allowing Appellees judgment on both contracts in question because Appellees’ Amended Motion for Summary Judgment sought relief only as to Contract A. We sustain this contention.

Appellees filed their first motion for summary judgment seeking recovery under both contracts on May 19,1977. A hearing on this first motion was held on May 31, 1977, at which time the trial court took same under advisement. On August 8, 1977, Appellees filed their second or amended motion for summary judgment, seeking recovery only under the larger Contract A. Appellant’s motion for summary judgment was filed August 9, 1977. A hearing on these motions was had on August 19, 1977, after which the trial court entered its judgment dated August 22, 1977.

In Appellees’ second or amended motion, they specifically prayed for recovery only under Contract A, and asked that Contract B be severed therefrom. Therefore, Appel-lees are limited in their recovery to their second or amended motion for summary judgment. In this posture of the case, considering Contract A only, Appellant Agri-stor is entitled to judgment in its favor in the amount of $28,624.09; whereas Appel-lee Donahoes are entitled to judgment in their favor in the amount of $66,382.56; thereby causing Appellee Donahoes to be entitled to a net judgment against Appellant Agristor in the amount of $37,758.47. Accordingly the trial court’s judgment is hereby reformed so as to adjudge that Ap-pellee Donahoes are entitled to judgment against Appellant Agristor in the amount of $37,758.47, and all amounts concerning Contract B are hereby severed from the trial court’s judgment. In all other respects the trial court’s judgment is affirmed.

REFORMED AND AFFIRMED.


source: Caselaw Access Project

author: BRADBURY, Justice.

license: Public Domain

text:
    FIRST REALTY BANK & TRUST, f/k/a Wynnewood State Bank, Appellant, v. Herbert YOUNGKIN, Appellee.
    No. 5171.
    Court of Civil Appeals of Texas, Eastland.
    June 8, 1978.
    Rehearing Denied July 20, 1978.
    John M. Gillis, Gillis, Rogers & Taylor, Dallas, for appellant.
    Keith R. Jones, Law Offices of Mark A. Troy, Jr., Dallas, for appellee.
   BRADBURY, Justice.

This is an appeal from a permanent injunction granted plaintiff, Herbert Young-kin, against defendants, First Realty Bank and Trust f/k/a Wynnewood State Bank and Forest Keene, Constable, enjoining execution and forced sale upon certain real estate in Dallas County. First Realty appeals and we reverse and render.

The bank recovered judgment against Youngkin March 24, 1965. The abstract of judgment was recorded in 1965 and again in 1974. Youngkin and his wife, Lola, were divorced October 7,1971, and in conformity with their property settlement agreement, each conveyed to their son, Herbert Gary Youngkin, on December 22, 1971, the land in question. Herbert Gary Youngkin conveyed the land to his father, the plaintiff, July 3, 1972, and the deed was recorded July 6, 1972. Plaintiff reconveyed the land to his son August 21,1972, but the deed was not filed for record until September 5,1975, about the time the officer attempted execution on judgment. Plaintiff explained that the conveyance to him of July 3, 1972, was to use the land as collateral for money borrowed for the son’s use. Plaintiff testified he had occupied and claimed the land as a homestead continuously since 1959, and that he had not remarried since the divorce from Lola.

The Bank argues the land in question became subject to its judgment lien July 3, 1972. The Texas Constitution was amended November 6, 1973, whereby a single man is allowed a homestead. The Bank contends its judgment lien takes precedence over the after-acquired homestead because a homestead right in plaintiff did not exist until November 6,1973, when the Constitution was amended. Plaintiff argues the land was his homestead and the judgment lien was never indexed. The court in its findings of fact and conclusions of law stated:

“FINDINGS OF FACT
The Court makes the following Findings of Fact:
1. The property located at 615 South Oak Cliff Boulevard, Dallas, Dallas County, Texas, which property is the subject of this suit, is the homestead of Herbert Youngkin, Plaintiff.
CONCLUSIONS OF LAW
The Court finds that the above stated fact compels the following Conclusion of Law:
1. The property located at 615 South Oak Cliff Blvd., Dallas, Dallas County, Texas, which property is the subject of this suit, is property exempt from forced sale as long it is Plaintiff’s homestead except for authority per Art. 16 Sec. 50, Constitution of the State of Texas.”

It is evident the land in question was not the homestead of plaintiff when conveyed to him July 3,1972, as he was then a single man. At that time, the land could not be exempt as a homestead, because the Constitution had not then been amended.

We must decide if the judgment lien takes precedence over the after-acquired homestead right. Our Supreme Court in Gage v. Neblett, 57 Tex. 374 (1882) stated:

“The controlling question in this case is, which is superior, a judgment lien on land, or a subsequently acquired homestead right?
In the case of Baird v. Trice, 51 Tex., 555, it was decided that an attachment lien on land will not be defeated by a subsequently acquired homestead right. The doctrine of that case has since been affirmed by this court, is sustained by numerous authorities elsewhere, and is, we think, founded on justice and sound principle.
In Bullene v. Hiatt [12 Kan. 98], the supreme court of Kansas say: ‘The attachment lien existed nearly three months before the homestead right was created. And while homestead laws are everywhere to be considered favorably, yet they are not to be so construed so as to destroy pre-existing rights . An attachment lien, like other liens, though not an estate in the land (Chick v. Willets [Willetts] 2 Kan. [384] 391), is such vested interest therein that it cannot be affected by any subsequent act of the debtor.’ 12 Kan., 101.
That a judgment lien creates such vested right as will be protected by section 10, article 1, constitution of the United States, which prohibits a state from passing any law which impairs the obligation of a contract, has been expressly decided by the supreme court of the United States, the decisions of which august tribunal upon questions of this character are of peculiarly binding authority upon the state courts. Gunn v. Barry, 15 Wall., 610 [21 L.Ed. 212]; Edwards v. Kearzey, 6 Otto [595], 607 [24 L.Ed. 793].
In Railroad Co. v. Winter, 44 Tex., 597, it was held that a change of designation of homestead by moving the houses or by changing the boundaries of it, substantially different from the locality which the pre-existing facts of ostensible use and enjoyment have fixed as a homestead, cannot be made to the injury or destruction of rights of judgment lien-holders, or of purchasers from the husband without the wife being joined, and existing before such attempted change.
In that case, Roberts, Chief Justice, delivering the opinion of the court, says that ‘if the judgment lien was acquired on said tract — the Palmer survey — when it was no part of the homestead, the defendant could not change the homestead so as to cover any part of it necessary for the satisfaction of the judgment.’ . . . 44 Tex. 615.
The difference between that case and the present is, that, in the former, it was sought to change the boundaries of an already existing homestead; here it is sought to acquire a new homestead, both to the prejudice of pre-existing judgment liens. There is no difference in principle.”

In Brooks v. Chatham, 57 Tex. 31 (1882), our Supreme Court in discussing a similar question stated:

“The attachment having been levied upon the land in controversy prior to its designation as homestead, the subsequent appropriation of it to homestead use cannot protect it from sale under the lien thus acquired. Baird v. Trice, 51 Tex. [555], 559; Mabry v. Harrison, 44 Tex. [286], 294; Chipman v. McKinney, 41 Tex. [76], 77; Potshuisky v. Krempkan, 26 Tex. [307], 309. The constitution declares that no lien upon the homestead shall be valid; but it does not declare that property not homestead at the time a lien is acquired may thereafter become homestead clothed with exemption from forced sale to satisfy such pre-existing lien. Those liens which the constitution declares invalid are only such as are attempted to be given upon the property otherwise than they are permitted to be given by the constitution, after the homestead character has attached thereto.”

In Johnson v. Prosper State Bank, 125 S.W.2d 707 (Tex.Civ.App.—Dallas 1939), aff’d, 134 Tex. 677, 138 S.W.2d 1117 (1940), the court discussed the question of whether or not a judgment lien takes precedence over an after-acquired homestead right. The judgment debtor filed his petition of bankruptcy but the judgment creditor was not notified and the bankruptcy court set aside the premises as a homestead of the judgment debtor. In determining the prior right of the judgment creditor, the court stated:

“So, we think, in this case, the order of the Bankruptcy Court setting aside the premises as the homestead of the judgment debtor, did not and could not have the effect of discharging, impairing or otherwise affecting the judgment lien under consideration. The lien had become a vested right in appellee long before the premises, if ever, were impressed with appellant’s homestead, and was obtained more than four months prior to the filing of the petition in bankruptcy; thus, the order setting aside the premises as appellant’s homestead in no way affected ap-pellee’s rights therein. Whatever rights appellant acquired by the order of the Bankruptcy Court, establishing his homestead on the premises, was and is subject to appellee’s valid and subsisting lien thereon.”

See also: Shepler v. Kubena, 563 S.W.2d 382 (Tex.Civ.App.—Austin 1978, no writ).

We hold the Bank’s judgment lien takes precedence over plaintiff’s after-acquired homestead right.

Plaintiff on appeal for the first time advances another theory of recovery. The rule that supplemental findings necessary to support the judgment are presumed has no application where, as here, the findings and conclusions disclose a different basis for the judgment. Rule 299, T.R.C.P.; E. F. Hutton & Company, Inc. v. Fox, 518 S.W.2d 849 (Tex.Civ.App.—Dallas 1974, writ ref. n. r. e.). The new theory advanced by plaintiff has no basis in the pleadings, the judgment, or the finding of fact. The judgment was based on the finding that the property was plaintiff’s homestead. There is nothing in the record to infer that the new theory now advanced by plaintiff formed any basis whatever for the judgment.

The judgment of the trial court is reversed and rendered.


author: GUITTARD, Chief Justice.

text:
    GUARANTY BANK, Appellant, v. LONE STAR LIFE INSURANCE COMPANY, Appellee.
    No. 19549.
    Court of Civil Appeals of Texas, Dallas.
    June 9, 1978.
    Rehearing Denied July 13, 1978.

      W. Ted Minick, Winstead, McGuire, Se-chrest, & Trimble, Dallas, for appellant.
    T. Richard Handler, Jenkens & Gilchrist, Dallas, for appellee.
   GUITTARD, Chief Justice.

Guaranty Bank sued Lone Star Life Insurance Company to enforce a commitment agreement in the form of a letter to make a loan to Omnia Systems, Inc. The bank alleges that it had made a short-term loan to Omnia in reliance on the commitment letter. Lone Star defended on the ground that the bank was neither a party to the commitment nor a third-party beneficiary entitled to enforce it and also on the ground that certain conditions to its obligation to make the loan had not been met. The trial court rendered summary judgment for defendant, and the bank appealed, contending that Lone Star has failed to show that no fact issues exist. We affirm on the ground that the summary-judgment proof establishes as a matter of law that one of the conditions of Lone Star’s commitment had not been met, namely, the personal guaranty of the loan by Omnia’s president, John Baird.

The summary-judgment proof shows that no dispute exists concerning the facts. Lone Star’s commitment letter provides for a loan of $760,000 “to be made to Omnia Systems, Inc. (Borrower) or its assignee (Guaranty Bank, Dallas, Texas) and it is to be secured by two first-mortgage notes” on certain land in Florida. Among the “terms and conditions” specified is the following: “The loan shall be personally guaranteed by John B. Baird and Ralph Smith.”

The bank contends that no personal guaranty was required as a condition to Lone Star’s liability on its commitment agreement because, after the bank had advanced the funds to Omnia, Lone Star signed a later “clarification letter” directly promising to purchase the Omnia note from the bank. Alternatively, the bank contends that if this condition was applicable, it was satisfied because the bank tendered to Lone Star an assignment of a guaranty of the Omnia note by Baird and Smith, which was equivalent to a guaranty of the loan to Lone Star.

We conclude that neither of these contentions is correct. The clarification letter is addressed to the bank as well as to Omnia and states that it is “written to clarify our Commitment Letter addressed to Omnia Systems, Inc.” The clarification letter continues:

Paragraph six (6) of the Commitment Letter means:
If all other conditions of the Commitment Letter have been met, not prior to April 15,1976 or later than September 30,1976, the Lender will pay to Guaranty Bank the sum of $760,000.00 upon Guaranty Bank’s tendering and delivering to Lender at its main office in Dallas, Texas the following:
(a) Promissory Note of Omnia Systems, Inc. to Guaranty Bank dated April 25, 1974, in the principal sum of $760,000.00 endorsed without recourse;
(b) The assignment of two First Mortgage Notes and the deeds securing same mentioned in the Commitment Letter, endorsed without recourse,
(c) Assignment to Lender by Guaranty Bank of its interest in the Mortgagee Policy . . .;
(d) The $50,000.00 or the Promissory Note in a like sum from Omnia Systems, Inc. guaranteed by John B. Baird and Ralph Smith . . . . [Emphasis added]

The bank argues that since Lone Star agrees in the clarification letter to pay the amount of the loan direct to the bank in exchange for endorsement and delivery to it of the Omnia note and the other documents listed, the various conditions specified in the original commitment agreement have no application to a situation in which the bank calls on Lone Star to purchase the existing Omnia note, as distinguished from a situation in which Omnia pays off the bank and calls on Lone Star to make a new loan under the terms of its commitment. We cannot accept this interpretation without disregarding the express language in the clarification letter, “If all other conditions of the Commitment Letter have been met . . ..” We find no evidence in the clarification letter of any intention that the conditions of the original commitment should not apply in the event that the bank rather than Omnia, calls on Lone Star to advance the proceeds of the loan. From Lone Star’s point of view, a direct assignment of Omnia’s pre-existing note to Lone Star would have given Lone Star no greater assurance of repayment than the execution of a new note by Omnia, since the bank’s endorsement was to be made without recourse. Under either arrangement the only security, in the absence of the guaranty, would have been the pledge of the two real-estate notes. Consequently, there is no reason to suppose that Lone Star would have had less reason to insist on the guaranty in one case than in the other.

Neither can we agree that the bank satisfied the conditions of the original commitment by tendering an assignment of the guaranty by Baird and Smith of the pre-existing Omnia note. After Baird signed that guaranty, and before the assignment was tendered to Lone Star, Baird received a discharge in bankruptcy on his voluntary petition, which listed both the bank and Lone Star on his schedule of creditors. Although a guaranty may be only a contingent liability, it is nevertheless a “provable debt” within section 63(a)(8) of the Bankruptcy Act, 11 U.S.C.A. § 103(a)(8) (1953). 3A Collier, Bankruptcy § 63.19 (14th ed. 1975); see Maynard v. Elliott, 283 U.S. 273, 275-76, 278, 51 S.Ct. 390, 75 L.Ed. 1028 (1931). Consequently, the discharge releases the bankrupt’s liability on a guaranty, as it does any other provable debt, under section 17(a) of the Act, 11 U.S.C.A. § 35(a) (1953). See Chevron Oil Co. v. Dobie, 40 N.Y.2d 712, 389 N.Y.S.2d 819, 358 N.E.2d 502, 503 (1976). As Lone Star points out, a recent amendment to section 14(f) of the Act, 11 U.S.C.A. § 32(f) (Supp.1977), provides that any judgment on a discharged debt is null and void as a personal liability of the bankrupt. In re Mountjoy, 368 F.Supp. 1087, 1093-94 (W.D.Mo.1973); 1A Collier, Bankruptcy § 17.28A (14th ed. 1978). However, whether Baird’s discharge completely extinguished the guaranty or only afforded an affirmative defense is not material here, since in either event the assignment of a guaranty that had been discharged in bankruptcy was no guaranty at all for the purpose of Lone Star’s commitment.

In this context, bankruptcy is not merely a matter of the guarantor’s insolvency. Regardless of Baird’s financial reverses, a guaranty of Lone Star’s loan signed by Baird at the time Lone Star was called on to advance the funds might have constituted compliance with the condition specified in the commitment agreement, since it would have provided the basis for a personal judgment against Baird. On the other hand, an assignment of a guaranty signed before the discharge could not have provided the basis for a personal judgment, and, therefore, was not, as the bank contends, equivalent to a new guaranty signed after the discharge. Consequently, we hold that the condition of a personal guaranty by Baird was not met.

The bank further contends that the summary judgment was improper because Lone Star failed to negate the allegations in “Count I” of its petition to the effect that Lone Star’s conduct in refusing to perform its commitment was done pursuant to a scheme whereby Lone Star repeatedly issued commitments in return for substantial fees with no intention of performing, and that such a course of conduct “evidences a willful, wanton and reckless indifference to the rights of others, including Plaintiff.” We conclude that these allegations, if true, would impose no liability on Lone Star if Lone Star otherwise has no contractual liability under its commitment agreement. No false representation is alleged on which the bank asserts its reliance. “Count I” is merely an allegation that Lone Star should be liable to the bank in damages because Lone Star never intended to perform its commitment. If Lone Star was bound to perform by its contract, then its contractual liability may be enforced. If it has no contractual liability, then no tort liability can be imposed, regardless of whether there was or was not an intention to perform the promise contained in the commitment letter. No authority is cited to support the bank’s contention that lack of intent to perform a promise which a party is not bound to perform is a ground for liability in tort, and we have found none. Any tort claim based on the promise would have to be founded on detrimental reliance, and no reliance on a promise is justified if the promise is expressly subject to a condition that has not been met. Barrier v. Brinkmann, 130 Tex. 350,109 S.W.2d 462, 467 (1937).

Neither would the facts alleged in “Count I” state a claim based on promissory estoppel, even if the bank were permitted to amend and allege the element of detrimental reliance, as required by Wheeler v. White, 398 S.W.2d 93, 96-97 (Tex.1966). If the promise in question is a part of a valid contract, the promisee cannot disregard the contract and sue for reliance damage under the doctrine of promissory estoppel. Pasadena Associates v. Connor, 460 S.W.2d 473, 481 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n. r. e.). On similar reason ing we hold that the bank here cannot enforce Lone Star’s commitment to loan money to Omnia in disregard of the express conditions of that commitment, whether or not Lone Star intended to perform the commitment at the time it was made.

Affirmed.


author: ODEN, Justice.

text:
    SERVISCO, d/b/a National Industrial Laundries Division, Texas Rental Uniform Division, a corporation, Appellant, v. TRAMCO, INC., a corporation, Appellee.
    No. 8539.
    Court of Civil Appeals of Texas, Texarkana.
    June 13, 1978.
    Rehearing Denied July 11, 1978.

      Robert C. McGuire, Ungerman, Hill, Un-german, Angrist, Dolginoff & Teofan, Dallas, for appellant.
    Gordon B. Russell, Jordan, Ramsey & Hill, Dallas, for appellee.
   ODEN, Justice.

Servisco, dba National Industrial Laundries Division, Texas Rental Uniform Division, a corporation, appellant, filed suit against Tramco, Inc., a corporation, appel-lee, for breach of a uniform rental contract alleging that it was entitled to liquidated damages of $2,449.00 plus attorney’s fees. The Appeal is from the judgment of the trial court rendered on an instructed verdict in favor of Tramco, Inc. Appellant and appellee will be referred to as Servisco and Tramco, respectively.

In deciding an instructed verdict case, this Court must view the evidence in the light most favorable to the party against whom the verdict was instructed. Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951). The evidence, when viewed in the light most favorable to Servisco, reveals that: On September 25, 1974, Servisco and Tramco entered into a uniform rental contract under the terms of which Servisco was to supply Tramco’s uniform requirements for a period of 104 weeks. Tramco, without legal justification, terminated the contract effective March 25, 1975. There were 79 weeks remaining on the original term on the contract at the time of the breach and the weekly service charge then in effect was $62.00. Servisco sustained actual damages in the form of loss of profits in the amount of $3,910.50 as a result of the breach, which damages were calculated by multiplying the profit factor per uniform per week ($.55) times the number of uniforms supplied at the time of breach (90) times the number of weeks remaining on the contract (79).

The uniform rental contract contained the following provision:

“The Customer acknowledges that the peculiar conditions surrounding a service consisting of furnishing uniforms for certain individuals are such that normal rules of damages will not compensate the Company for its loss in the event of a breach or termination of this Agreement by the Customer. The parties therefore agree that in the event of such a breach or termination the Company shall receive as liquidated damages, and not as a penalty, an amount equal to the total of: (1) one half of the aggregate weekly service charge, then in effect, for the balance of the term of this Agreement and (2) the loss charge for any uniforms or articles not returned to the Company on any such breach or termination, together with all costs, including reasonable attorney fees, incurred by the Company in enforcing its rights hereunder.” (Emphasis added.)

Servisco prayed for liquidated damages calculated in accordance with the quoted provision (79 weeks remaining times $62.00 per week service charge then in effect divided by two equals $2,449.00), and, in the alternative, for actual damages. The trial court declined to enforce the quoted provision after construing it as one calling for a penalty and not for liquidated damages. It further held that Servisco’s evidence did not raise an issue on actual damages due to a lack of evidence pertaining to the number of uniforms Tramco would reasonably be expected to use during the 79 weeks remaining on the contractual term.

The trial court’s ruling on actual damages was, in effect, a holding that Ser-visco could not recover loss of profits due to the amount being speculative. Tramco was using 90 uniforms per week at the time of the breach and the jury would have been justified in finding that these requirements would have continued throughout the remainder of the contractual term. A party who breaches a contract cannot escape liability because it is impossible to state or prove a perfect measure of damages. Uncertainty as to the amount of damages will not defeat recovery. Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340 (1955). It is error to instruct a verdict when the evidence raises any material issue. Air Conditioning v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422 (1952). The evidence introduced by Servisco raised an issue on actual damages and the trial court erred in instructing a verdict for Tramco.

It was held in Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952), that:

“The right of competent parties to make their own bargains is not unlimited. The universal rule for measuring damages for the breach of a contract is just compensation for the loss or damage actually sustained. By the operation of that rule a party generally should be awarded neither less nor more than his actual damages. A party has no right to have a court enforce a stipulation which violates the principle underlying that rule. In those cases in which courts enforce stipulations of the parties as a measure of damages for the breach of covenants, the principle of just compensation is not abandoned and another principle substituted therefor. What courts really do in those cases is to permit the parties to estimate in advance the amount of damages, provided they adhere to the principle of just compensation. Restatement of Contracts, Sec. 339, accurately expresses the rule as follows:
‘(1) An agreement, made in advance of breach fixing the damages therefor, is not enforceable as a contract and does not affect the damages recoverable for the breach, unless
‘(a) the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach, and ‘(b) the harm that is caused by the breach is one that is incapable or very difficult of accurate estimation.’ ”

A sum stipulated to be paid under an agreement should be treated as an unenforceable penalty if the agreement contains several matters of different degrees of importance and the sum stipulated is payable for the breach of any, even the least. The rationale is that the parties could not have adhered to the rule of just compensation in their negotiations preceding an agreement which affords the same reparation for the breach of a trivial, or comparatively unimportant, stipulation as for the breach of an important one or the whole contract. This is true even though the sum payable is designated as a payment for liquidated damages. Stewart v. Basey, supra. The contract under review provided, inter alia, that Tramco would rent all of its uniform requirements from Servisco during the term of the contract. When the rules herein set forth are applied to the covenant pertaining to the rental of all Tramco’s uniform requirements, it is clear that the quoted provision calling for liquidated damages is in fact a provision for a penalty. Such provision provides that liquidated damages are payable in the event of a breach or termination of the agreement. It does not specify that liquidated damages are to be payable only in the event of wrongful termination or breach of the covenant to pay rentals. For us to hold otherwise would be to hold that Tramco could be liable for the same damages for the breach of the uniform requirements covenant as it could for wrongful termination even though it might rent or procure as few as one uniform from a source other than Servisco.

It is not necessary for us to decide whether Servisco would have been entitled to enforce the liquidated damage provision had the uniform rental contract contained no covenant to be performed by Tramco other than to pay rentals. Our holding is distinguishable from that of Oetting v. Slake Uniform and Linen Service, 553 S.W.2d 793 (Tex.Civ.App. Fort Worth 1977, no writ), inasmuch as that court found that the liquidated damage provision contained in the uniform rental contract there under review would only become operable in case of termination of the entire contract.

The quoted provision of the uniform rental contract under review provided that attorney’s fees are recoverable as costs in addition to liquidated damages. Our holding that such provision calls for a penalty and is therefore unenforceable shall not prevent Servisco from recovering its attorney’s fees as costs in the event it prevails on its claim for actual damages. A holding that a provision calling for liquidated damages is in fact one calling for a penalty does not vitiate the entire contract but only makes the penalty provisions unenforceable.

The final point of error to be decided pertains to the exclusion of evidence. Servisco attempted to introduce into evidence the uniform rental contract entered into between Tramco and one of Servisco’s competitors for the purpose of showing that Tramco breached the contract under review because it was already obligated under the terms of a similar contract. In our opinion the trial court correctly sustained Tramco’s objection. The excluded document was not relevant on the issue of whether or not Tramco was justified in terminating the contract. It was therefore susceptible to an objection of being res inter alios acta.

The judgment of the trial court will be reversed and the cause is remanded to the trial court for further proceedings consistent with the opinion.

Reversed and remanded.


author: SPURLOCK, Justice.

text:
    LEONARD FARMS, a partnership, Appellant, v. THOMPSON-HAYWARD CHEMICAL COMPANY et al., Appellees.
    No. 17992.
    Court of Civil Appeals of Texas, Fort Worth.
    June 15, 1978.
    Rehearing Denied July 27, 1978.

      Shannon, Gracey, Ratliff & Miller and Kleber C. Miller, Fort Worth, for appellant.
    Howard & Caldwell, Dallas, McBryde, Bogle & Green and John McBryde, Fort Worth, for appellee Thompson-Hayward Chemical Co.
    Garrett, Settle & Callaway and J. Robert Green, Jr., Fort Worth, for appellee Rhodia, Inc.
    Wallace & Owens, Miami, Okl., Cantey, Hanger, Gooch, Munn & Collins and Tolbert L. Greenwood, Fort Worth, for appellee Midland Flyers, Inc.
   OPINION

SPURLOCK, Justice.

This is a summary judgment case. Leonard Farms, a partnership, (appellant) brought suit to recover for damages to its 1973 soybean crops, allegedly caused by certain chemicals sprayed on its crops in the State of Oklahoma for the purpose of controlling the growth of cockleburs. These crops have been harvested. It has alleged both products liability and negligence causes of action. The three defendants (appel-lees) before us are as follows: (1) Midland Flyers, Inc., who allegedly applied the chemicals to the plaintiff’s crops; (2) Thompson-Hayward Chemical Company, whose representatives allegedly recommended and sold the particular chemicals sprayed upon the plaintiff’s crops; and (3) Rhodia, Inc., which is the company that manufactured the chemicals which allegedly damaged the plaintiff’s crops. In its judgment, the trial court found that “each defendant is entitled to summary judgment on the ground that plaintiff is prohibited from bringing this action against any of the defendants by virtue of plaintiff’s failure to comply with Section 3-82(d) of 2 Oklahoma Statutes Annotated . . . .” From the summary judgment rendered in favor of the three defendants, Leonard Farms has perfected its appeal.

We affirm the judgment of the trial court as to Midland Flyers, Inc., and we reverse and remand the cause as to Thompson-Hayward Chemical Company and Rho-dia, Inc.

Leonard Farms is a partnership with its principal office and place of business in Tarrant County, Texas. It owns and operates a farming operation in Oklahoma. It had planted some 498 acres of soybeans on this farm, and within a short time period, a bad cocklebur problem had developed in 263 acres of these soybean crops.

Leonard Farms alleges that upon the recommendation and advice of representatives of Thompson-Hayward Chemical Company, it arranged to purchase two Butoxone chemicals from said company. The two chemicals, 2080 Butoxone Amine and 2100 Butoxone SB, were manufactured by Rho-dia, Inc. The chemicals were sprayed upon the growing soybean crops by Midland Flyers, Inc. It is further alleged that the two Butoxone Chemicals had no significant effect upon the cockleburs they were meant to kill; however, some soybeans were killed and others were severely damaged, thereby resulting in significantly reduced crop yields. After the alleged crop damage was discovered, representatives of the three defendants inspected the fields.

Leonard Farms admits that it did not give any written notice of its alleged crop damage to the Oklahoma State Board of Agriculture.

By its first point of error, Leonard Farms contends that “(t)he trial court erred in holding that 2 Oklahoma Statutes Annotated § 3-82(d) prohibits appellant from bringing this suit against appellees Thompson-Hayward Chemical Company and Rhodia, Inc.”

2 Oklahoma Statutes Annotated §§ 3-81 through 3-88 (1973) are captioned: “E. Pesticide Applicators”. (We shall refer to the statute as it was written at the time that the plaintiff’s alleged cause of action arose.) § 3-81(a) of the Oklahoma statute provides:

The term “Board” means the State Board of Agriculture of the State of Oklahoma. § 3-81(7%) of the Oklahoma statute provides in part that:
(7) The term “applicator” means any person . . . who engages in custom application of pesticides as herein defined.
§ 3-81(k) of the Oklahoma statute provides in part that:
(k) The term “custom application of pesticides” means any application of insecticides, fungicides, herbicides, defoliants, or desiccants by aircraft or ground equipment, for hire or compensation. .
§ 3-82(d) of the Oklahoma statutes provides in part that:
(d) No permit shall be issued or renewed or be valid unless the applicator shall have filed with the Board a corporate surety bond guaranteeing that the applicator will answer in damages to any person injured by the applicator’s pesticide application or drift to plants, animals, or property, or by failure of the applicator to comply with the rules and regulations of the Board governing the use of custom application of pesticides. . . .No action for such alleged damages to growing annual crops or plants may be brought or maintained, however, unless the person claiming the damages shall have filed with the Board a written statement of alleged damages, on a form prescribed by the Board, within ninety (90) days after the date that the alleged damages occurred, or prior to the time that twenty-five percent (25%) of a crop damaged shall have been harvested.

By a careful reading of the statute, it is clear that the Oklahoma statutes cited above only apply to “applicators” of pesticides, McArdle v. Stewart, Okl., 446 P.2d 379 (1968); Olmstead v. Reedy, Okl., 387 P.2d 631 (1963). Of the three appellees before us, only Midland Flyers, Inc. is an “applicator” within the meaning of the statute. Since the Oklahoma statute only applies to “applicators”, we hold that it is only appellant’s cause of action against Midland Flyers, Inc. that is affected by the cited Oklahoma statute. We sustain Leonard Farms’ first point of error.

Since we have concluded that only Midland Flyers, Inc. was an “applicator” within the meaning of the Oklahoma statute, the summary judgments in favor of Thompson-Hayward Chemical Company and Rhodia, Inc. must be reversed and the cause as to them remanded to the trial court. Therefore, we shall consider Leonard Farms’ remaining points of error only insofar as they concern Midland Flyers, Inc.

By its second point of error, Leonard Farms contends that “(t)he trial court erred in not finding that appellant Leonard Farms was in substantial compliance with 2 Oklahoma Statutes Annotated § 3-82(d) as a matter of law, or in the alternative in not finding that a material question of fact existed as to whether or not appellant was in substantial compliance . . .” with the Oklahoma statute.

It appears to be the Leonard Farms’ contention that it has substantially complied with the Oklahoma statute in that Midland Flyers, Inc. had actual notice of the alleged crop damage and had made a detailed investigation within ninety days.

The case of Olmstead, supra, does recognize the doctrine of substantial compliance; however, in that case, the plaintiff had given the required notice to the State Board of Agriculture, but had not listed each element of damages. In the case at bar, Leonard Farms admits that it did not give any notice to the State Board of Agriculture. We have carefully read the Olmstead case, and we must hold that there was no issue of “substantial compliance” raised in the case before us. We overrule Leonard Farms’ second point of error.

By its third point of error, Leonard Farms contends that “(t)he trial court erred in not finding that a material question of fact existed as to whether or not appellees waived their right to assert . . . ” the Oklahoma statute “as a defense, or in the alternative were estopped by their actions to assert this defense.”

Upon reading the Oklahoma statute and the two cases concerning it, we must hold that the giving of notice to the Oklahoma State Board of Agriculture is a condition precedent to the right to commence the action against an “applicator”; i. e., Midland Flyers, Inc. Olmstead, supra; McAr-dle, supra. There is no waiver or estoppel in this case. We overrule Leonard Farms’ third point of error.

By its fourth point of error, Leonard Farms contends that “(t)he trial court erred in finding that appellees have established their defense based upon 2 Oklahoma Statutes Annotated § 3-82(d) as a matter of law.”

Having reviewed the record, we conclude that Midland Flyers, Inc. has properly established that Leonard Farms has not complied with this statutory condition precedent to bringing suit against it. We overrule Leonard Farms’ fourth point of error.

We affirm the judgment of the trial court as to Midland Flyers, Inc., and we reverse and remand the cause as to Thompson-Hayward Chemical Company and Rho-dia, Inc.


author: KEITH, Justice.

text:
    NATIONAL MARITIME UNION et al., Appellants, v. Mary B. ALTMAN, Appellee.
    No. 8148.
    Court of Civil Appeals of Texas, Beaumont.
    June 15, 1978.
    Rehearing Denied July 13, 1978.

      Jon B. Burmeister, Port Arthur, for appellants.
    Shelby K. Long, Port Arthur, for appel-lee.
   KEITH, Justice.

Defendant below appeals from an order entered in the trial court enforcing an agreement to settle a disputed claim theretofore pending in such court. We affirm.

Plaintiff below, the widow of a member of the defendant union, claimed that she was entitled to benefits from the pension plan provided by the union. She brought suit claiming benefits of approximately $18,000 and the defendant answered by a general denial. After some discovery, and at a time when the case was upon a trial setting, counsel for the parties entered into settlement negotiations which finally culminated in plaintiff’s counsel addressing a letter to defendant’s counsel offering to settle the case for the cash payment of $12,000. A month later, defendant’s counsel sent him a form of judgment to be entered which correctly set out the terms of the compromise, and a set of releases to be executed by plaintiff and her counsel.

The covering letter transmitting the settlement documents included in its caption the cause number and style of the pending litigation, and we set out its contents in the margin. Plaintiff, who resided in the State of Mississippi, came to Texas, signed the documents as requested by defendant’s counsel, and her lawyer then returned them to defendant’s counsel.

Thereafter, the New York office — at the time the check was being “cut” — discovered (so it claims in an affidavit of one of its agents) that plaintiff, having earlier drawn certain financial benefits from the union fund, was not entitled to $12,000 but a smaller sum. It then instructed its counsel of record to repudiate the settlement agreement.

Upon notice of repudiation of the agreement, plaintiff then filed her motion in the original and still pending suit to enforce such settlement agreement. After a hearing and the receipt of testimony, the trial court entered the judgment originally submitted by defendant’s counsel to the plaintiff which had been repudiated by his client.

Defendant made no effort to dispute the authority of its attorney to negotiate the settlement agreement but contends that there was a unilateral mistake on its part in determining the maximum amount of benefits to which plaintiff was entitled. It makes no contention that it was overreached or that any act or declaration of the plaintiff or her counsel contributed to the mistake it claims was made in its New York office.

Defendant’s appeal relies heavily upon Tex.R.Civ.P. 11 and Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951). We are not persuaded by defendant’s argument and affirm the judgment of the trial court.

In Stewart v. Mathes, 528 S.W.2d 116, 118-119 (Tex.Civ.App.—Beaumont 1975, no writ), we discussed the distinction between the Burnaman Rule and the enforcement oí an agreement to settle a case. We adhere to that decision and, for the reasons set out in Stewart v. Mathes, we do not find Burnaman to be controlling in this cause.

Our case is even stronger than the fact structure underlying Fail v. Lee, 535 S.W.2d 203 (Tex.Civ.App.—Fort Worth 1976, no writ), wherein the settlement agreement was enforced. We adopt the rationale of Fail v. Lee as applicable to our case. See also Comment in 31 Sw.L.J., at 342-343 (1977), discussing Stewart v. Mathes, supra.

Finding no error, all of defendant’s points are overruled and the judgment of the trial court is AFFIRMED.

      . “Enclosed please find original and two copies of Final Judgment and Release which I have prepared with respect to the above styled and numbered cause. If same meets with your approval, please see to the execution of an original and one copy and return same to me. I have provided a copy for your files.
      “Once I have received the executed instruments back from you, we will enter same with the Court. Once the instruments have been entered with the Court, the New York office will forward the checks to me.”

      . There was a slight difference in the judgment proposed by defendant’s counsel and the one entered: it was provided in the original judgment that a portion of plaintiff’s recovery was payable monthly and the judgment entered simply brought these installment payments up to date in the lump sum provided therein. Otherwise, the judgment agreed upon by the parties and the one entered is identical to and including some unusual expressions not ordinarily encountered in judgments.

      . Rule 11: “No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”

      . In a very recent case, Williams v. Hollings-worth, 568 S.W.2d 130 (1978), it was said: “It is a settled rule that a valid consent judgment cannot be rendered by a court when consent of one of the parties thereto is wanting. Buma-man v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951).”


author: CORNELIUS, Chief Justice.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Morris E. GOODSON, Appellee.
    No. 8560.
    Court of Civil Appeals of Texas, Texarkana.
    June 20, 1978.
    Rehearing Denied July 25, 1978.

      Rex A. Nichols, Nichols & Parker, Long-view, for appellant.
    Bascom Perkins, Perkins & Perkins, Mount Pleasant, for appellee.
   CORNELIUS, Chief Justice.

Appellant, United States Fidelity and Guaranty Company, presents here the single contention that the judgment of the district court awarding appellee, Morris E. Goodson, worker’s compensation benefits for total and permanent disability must be reversed because the evidence was insufficient as a matter of law to support the court’s finding that, at the time appellee received his injury, he was an employee of the insurance subscriber, James Dillard.

Appellant’s point that the evidence was insufficient as a matter of law constitutes a “no evidence” point. Airway Insurance Co. v. Hawk’s Flite Center, Inc., 534 S.W.2d 878 (Tex.1976). In considering such a point, we must view the evidence in the light most favorable to appellant’s contentions, disregarding all adverse or conflicting evidence, and if we find any evidence of probative value supporting the district court’s finding, the judgment must be affirmed. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). The evidence, tested by the principles noted, reveals that James Dillard was in the business of constructing residential and commercial buildings in and near Mount Pleasant, Texas. He was also a part owner of the Savemore Building Supply Company of Mount Pleasant. In the fall of 1975, Dillard agreed to construct a residence for Rex Jones. He testified that, although at other times previously he had used employees of his own in his construction business, at the time he built the Jones house he had ceased doing business through employees, because he was unable to spend the necessary time to supervise them, and instead he subcontracted all the work to independent contractors. Separate contracts were negotiated for the plumbing, electrical, concrete, brick and painting work. The carpentry work was given to W. A. Moss by oral contract. Moss bid the work on a square foot basis for a contract price of $4,270.00. Dillard furnished all the materials for the carpentry work from the Savemore Building Supply Company, but Moss had his own tools and used them, except that Dillard on occasions loaned him an air compressor, a tractor and a transit. Dillard also testified that he hardly knew Morris E. Goodson, did not hire him to work on the Jones house, and did not pay his wages or carry him on his records as an employee for income tax, social security or any other purpose. Neither was W. A. Moss carried as an employee for such purposes, and he was paid only his bid contract price in periodic installments as the work progressed. W. A. Moss supported Dillard’s testimony, asserting that he was not an employee, but was an independent contractor who bid the carpentry work for the Jones house on a square foot basis. He employed his son and appellee Goodson, who was distantly related to him, as his helpers. He agreed to pay appellee wages of $5.00 per hour and paid him directly. Appellee testified that Moss alone approached him and made the deal with him to come to work on the house; that he was led to believe that Moss was subcontracting the carpentry work for Dillard, but that he now felt that Moss was “the foreman” out there and that “I was working for Mr. Moss and Mr. Dillard;” that he was paid directly by Moss; and that he had never received any compensation or other benefits from Dillard.

There can be no liability under the worker’s compensation law unless as the statute prescribes, there is a contract for hire, either expressed or implied, between two parties — the claimant and the subscriber. Tex.Rev.Civ.Stat.Ann. art. 8309, Sec. 1; 62 Tex.Jur.2d, Workmen’s Compensation, Sec. 29, p. 563, and eases there cited. The contract must be one which creates the relation of master-servant rather than that of independent contractor-contractee. Lowry v. Anderson-Berney Bldg. Co., 139 Tex. 29, 161 S.W.2d 459 (1942); 62 Tex. Jur.2d, Workmen’s Compensation, Sec. 39, pp. 575-576. And the burden of establishing his relationship as an employee of the subscriber is upon the claimant. Industrial Indemnity Exchange v. Southard, 138 Tex. 531, 160 S.W.2d 905 (1942).

The essential inquiry here is not whether appellee was an employee or an independent contractor. The record clearly supports the conclusion that appellee was an employee. The decisive question is whether he was an employee of Dillard, the subscriber, or of Moss.

Numerous circumstances are relevant in determining the existence of an employer-employee relationship, such as the right to hire and discharge, the obligation to pay wages, the carrying of the worker on the social security and income tax withholding rolls, and the furnishing of tools, but the ultimate and decisive test is the right of the alleged employer to control the details of the worker’s performance. It is undisputed that appellee was actually hired by Moss, rather than Dillard, to perform work on the Jones house, and that he had none of the other formal relations with Dillard as are usual in an employer-employee relationship. Therefore, to support a finding that appellee was an employee of Dillard so as to be entitled to worker’s compensation benefits provided by his policy, there must have been either (1) evidence that Moss, rather than being an independent contractor, was an employee or agent of Dillard with expressed or implied authority to hire other employees for Dillard, and that he hired appellee as such an employee, or (2) evidence of such control and direction of the details of appellee’s work by Dillard, or other evidence of an employer-employee relationship between them, as would raise an inference that appellee thus became Dillard’s own employee, either through an ordinary implied contract of employment or by virtue of the legal doctrine of borrowed servant.

A finding of the first alternative is precluded by the undisputed evidence in the record. There is a complete absence of any evidence or inference that Moss was an employee of Dillard’s. All of the testimony was that he was an independent contractor. There was no evidence of any exercise of control or right of control on the part of Dillard over the work of Moss, except the general type of supervision which any general contractor must have over his subcontractors in order to see that the work is done in accordance with the plans and in a good and workmanlike manner. That type of supervision does not constitute evidence of an employer-employee relation. Continental Insurance Company v. Wolford, 526 S.W.2d 539 (Tex.1975); Anchor Casualty Company v. Hartsfield, 390 S.W.2d 469 (Tex.1965); Industrial Indemnity Exchange v. Southard, supra; Goodnight v. Zurich Insurance Company, 416 S.W.2d 626 (Tex. Civ.App. Dallas 1967, writ ref’d n.r.e.); Travelers Ins. Co. v. Ray, 262 S.W.2d 801 (Tex.Civ.App. Eastland 1953, writ ref’d). Even if a finding that Moss was Dillard’s employee could be justified, there is still no hint in the evidence that he occupied such a position as to have either the expressed or the implied authority to hire other employees for Dillard. In the absence of such authority, his engagement of appellee as a helper would not make appellee an employee of Dillard’s. Goodnight v. Zurich Insurance Company, supra; Travelers Insurance Company v. Brown, 395 S.W.2d 701 (Tex. Civ.App. Texarkana 1965, writ ref’d n. r. e.).

Neither will the record support a finding of the second alternative — that by virtue of Dillard’s exercise of, or right to exercise, control over the details of appel-lee’s work, or the existence of other indicia of the employer-employee relationship, ap-pellee could be considered Dillard’s employee. The only evidence in the record upon which appellee relies to show control of details is testimony that when appellee was laying out the location of the house on the lot, Dillard was present and told appellee to move it back five or six feet so as to improve the stability of the house and minimize the amount of fill dirt needed, and on another occasion Dillard suggested to appel-lee that the space between two of the foundation beams be widened for the purpose of strengthening the foundation. In addition, Dillard answered “yes” to questions on cross-examination inquiring whether he reserved the right to see that the work met with his “approval,” and if “a two-by-four hadn’t been put in there like it ought to have been put in there” he would have suggested or required that it be changed. That type of approval or supervision is not such control over the details of the work as will constitute evidence that an employee of a subcontractor has become the employee of the general contractor. It is nothing more than the general right of any contractor to see that the work of his subcontractors or their employees is of good quality and complies with the plans and specifications. Continental Insurance Company v. Wolford, supra; Anchor Casualty Company v. Harts-field, supra; Industrial Indemnity Exchange v. Southard, supra; Stimson v. Aetna Insurance Company, 440 S.W.2d 108 (Tex.Civ.App. Dallas 1969, no writ); Travelers Insurance Company v. Brown, supra; Traders & General Insurance Co. v. Ferris, 312 S.W.2d 311 (Tex.Civ.App. Amarillo 1958, writ ref’d). Direction and control with respect to the character of materials and workmanship is entirely consistent with the relation of independent contractor. Ewing v. Litzmann, 188 S.W. 742 (Tex.Civ. App. Galveston 1916, writ ref’d); 30 Tex. Jur.2d, Independent Contractors, Sec. 7, p. 486. When the authorities speak of control over the details of the work, as distinguished from the end result, they mean the physical conduct of the workman in performing his work, such as when and where to begin and stop work, the regularity of hours and the amount of time spent on particular aspects of the work, the physical method or manner of accomplishing an end result, and control of the type of tools and appliances used to perform the work. Restatement (Second) of Agency, Sec. 220 (1958); 41 Am.Jur.2d, Independent Contractors, Secs. 8 and 9, pp. 751-756; 53 Am. Jur.2d, Master and Servant, Sec. 2, p. 83; Ibid, Sec. 4, p. 86. Compare Continental Insurance Company v. Wolford, supra. There is no evidence of any such control by Dillard over appellee, and there is no evidence of any of the other tests which may be relied upon to prove a master-servant relationship. There is likewise no evidence that appellee became the servant of Dillard under the borrowed servant doctrine. An employee in the general employment of one employer may be temporarily loaned to another so as to become a special employee of the second employer. Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94 (1946); Restatement (Second) of Agency, Sec. 227 (1958). But he can become the servant of the second person only if there exists the same elements in relation to the second as would constitute him a servant of that person were he not originally the servant of the first. Restatement (Second) of Agency, Sec. 227 (1958). Furthermore, even though an employee of one may be subject to the direction of a temporary master, no new relationship of employment is created if, in following the directions of the temporary master, he is doing so merely in obedience to the direction of, and in the general performance of his duties to, his original employer. Wise v. Texas Employers Insurance Association, 402 S.W.2d 228 (Tex.Civ.App. Houston 1966, writ ref’d n. r. e.); Dealers National Insurance Company v. Jackson, 363 S.W.2d 297 (Tex.Civ.App. Beaumont 1962, writ ref’d n. r. e.).

Appellee urges that the testimony that Dillard loaned Moss an air compressor, a tractor and a transit for use on the Jones house job constitutes some evidence of a master-servant relationship between them or between Dillard and appellee. We do not agree. In explaining the loan of these items, Dillard testified that on numerous occasions he loaned his tools and appliances to Moss and others even when they were not performing services for him, as a courtesy to all those with whom he did business. Disregarding the explanation, if the fact that Dillard loaned Moss a tractor, transit and air compressor constitutes any evidence of a master-servant relationship in the context of this case, we consider it no more than a scintilla. Compare Anchor Casualty Company v. Hartsfield, supra.

There being no evidence of probative value that appellee was an employee of James Dillard, the rendition of a judgment in ap-pellee’s favor was error. The judgment is therefore reversed and judgment is here rendered that appellee take nothing.

IT IS SO ORDERED.

      . Trial was to the court without a jury.

      . Travelers Insurance Company v. Arnold, 378 S.W.2d 78 (Tex.Civ.App. Dallas 1964, no writ); Maryland Casualty Co. v. Scruggs, 277 S.W. 768 (Tex.Civ.App. Amarillo 1925, writ refd); Traders and General Insurance Co. v. May, 168 S.W.2d 267 (Tex.Civ.App. Amarillo 1943, writ refd w. o. m.).

      . Halliburton v. Texas Indemnity Insurance Co., 147 Tex. 133, 213 S.W.2d 677 (1948).


author: SHANNON, Justice.

text:
    ALPHA GUARD, INCORPORATED, Petitioner, v. CALLAHAN CHEMICAL COMPANY, Respondent.
    No. 12723.
    Court of Civil Appeals of Texas, Austin.
    June 21, 1978.
    Shirley Meissner Arend, Austin, for petitioner.
    Bernard J. Buecker, Juarez, Camacho & Phillips, Austin, for respondent.
   SHANNON, Justice.

This cause is in this Court by writ of error from a default judgment for $13,900 entered by the district court of Travis County against petitioner Alpha Guard, Incorporated. Respondent is Callahan Chemical Company. The issue is whether the district court obtained jurisdiction of petitioner by substituted service of process on the Secretary of State in accordance with Tex.Rev.Civ.Stat.Ann. art. 2031b (1964).

In its trial petition respondent pleaded that petitioner “ . . . is a corporation headquartered in Chicago, Illinois, at P.O. Box 7482, and doing business in Texas. Defendant’s [petitioner’s] agent for process in Chicago, Illinois is Edgar A. Blumenfeld, 69 W. Washington St., Chicago, Illinois, 60602. Defendant [petitioner] corporation has no registered agent in this state, so service of process can be had through the Texas Secretary of State. Tex.Bus.Corp.Act Ann. art. 8.09(B) (1956) and Tex.Rules Civ.Proe. 108.”

Petitioner made no appearance, and on February 2, 1977, the district court entered the default judgment. The judgment recited that petitioner “ . . though duly served with process, failed to appear or answer in its behalf and has defaulted.” Because the writ of error is a direct attack upon a default judgment, the recital in the judgment of due service of citation is not controlling. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965).

Petitioner claims that substituted service was not made in accordance with provisions of art. 2031b. We agree and will reverse the judgment.

A plaintiff who seeks to utilize any form of substituted service on a defendant must demonstrate strict compliance with the applicable statute. Charles Cohen, Inc. v. Adams, 516 S.W.2d 464 (Tex.Civ.App. 1974, no writ). He must: (1) plead facts that, if true, would require the defendant to answer; and (2) prove that the defendant was, in fact, served in the required manner. Whitney v. L & L Realty Corp., 500 S.W.2d 94 (Tex.1973).

The quoted portion of respondent’s petition clearly shows that respondent did not plead facts entitling it to obtain substituted service on petitioner by serving the Secretary of State under sections 2 or 6 of art. 2031b. Neither did respondent plead facts entitling it to substituted service under section 3, since under section 3 respondent must have pleaded that petitioner did “ . . . not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State . . ” McKanna v. Edgar, supra.

To obtain substituted service under section 1 of art. 2031b a plaintiff must plead, among other things, that the defendant is a foreign corporation. The quoted portion of respondent’s petition shows that respondent failed to make that allegation. Respondent’s pleading merely identified the location of petitioner’s headquarters as Chicago, Illinois. It does not follow that the state in which a corporation has its headquarters is also the state of its incorporation. Strict compliance with the statute is required, Whitney v. L & L Realty Corp., supra, and no presumptions are made in support of service. McKanna v. Edar, supra; Prine v. American Hydrocarbons, Inc., 519 S.W.2d 520 (Tex.Civ.App.1975, no writ).

Petitioner, having now appeared to attack the judgment, is presumed to have entered its appearance to the term of court at which the mandate shall be filed. Tex.R. Civ.P. 123. The judgment is reversed and the cause is remanded to the district court for trial.

Reversed and Remanded.


text:
    BOARD OF REGENTS OF the UNIVERSITY OF TEXAS SYSTEM, Appellant, v. COMANCHE APARTMENTS, INCORPORATED, et al., Appellees.
    No. 12760.
    Court of Civil Appeals of Texas, Austin.
    June 21, 1978.
    Rehearing Denied July 26, 1978.

      John L. Hill, Atty. Gen., Watson C. Arnold, Asst. Atty. Gen., Austin, for appellant.
    James R. Meyers, Robinson, Felts, Meyers, Starnes & Latting, David W. Hilgers, Hilgers, Watkins, Ledbetter & Hays, Austin, for Comanche Apartments.
    R. Clarke Heidrick, Jr., Graves, Dougherty, Hearon, Moody & Garwood, Austin, for Austin Nat. Bank.
   SHANNON, Justice.

The Board of Regents of the University of Texas System appeals from entry of a temporary injunction by the district court of Travis County. The order enjoined the Regents from pursuing two condemnation proceedings filed in the county court at law of Travis County.

The Regents filed two petitions in condemnation in the county court at law seeking condemnation of two parcels of land in Austin located near the University of Texas campus. Title to one tract is held by appel-lee Comanche Apartments, Incorporated, and title to the other tract is held by appel-lee Austin National Bank as trustee. The Commissioners were appointed, the hearing date was set, and the parties were notified. Before the hearings of the Commissioners could be held, the district court, upon application and after hearing, entered the temporary injunction.

In 1973 the Regents and the City of Austin entered into a contract in which the City agreed to vacate a portion of Red River Street. In exchange for the vacation the University agreed to acquire, at its cost and expense, an eighty-foot right-of-way and any other right-of-way which might be needed for feeder roads. The contract provided that the newly acquired right-of-way would be transferred to the City to replace the vacated portion of Red River Street.

Appellees claim the sole purpose for the condemnation proceedings was in satisfaction of the Regents’ obligation under the terms of the 1973 contract, that being to provide a right-of-way for a public street within the city limits of Austin. The Regents dispute appellees’ claim by referring to the testimony of their witness Stockton that “part” of the property acquired by condemnation was to be used for the newly located Red River Street. The Regents also point to their petitions in condemnation to show they did not plead that the land obtained by condemnation was to be used ultimately for street purposes.

The district court concluded in the order that the University’s power to acquire any land that might be necessary to carry out its purposes did not authorize the Regents to acquire right-of-way for a public street in the City of Austin. The court concluded further that the contract between the Regents and the City obligated the Regents to acquire right-of-way for a public street in Austin which the Regents proposed to acquire from appellees by exercise of their power of eminent domain.

The Regents complain of the judgment by two points of error: (1) the district court lacked jurisdiction to enjoin the Regents from proceeding with condemnation proceedings, and (2) the district court abused its discretion in entering the temporary injunction upon the basis that the Regents were without authority to condemn land for use as a public street.

In defense of the temporary injunction, appellees argue that the Regents’ attempt to condemn land within the limits of the City of Austin for use as a public street was void and thereby subject to injunction. The Regents’ effort to condemn the land was void, say appellees, because the University may not condemn property within the limits of a home rule city for use as a public street.

Upon request of this Court the parties briefed another jurisdictional problem. That problem concerns the power of the district court to enjoin a party from pursuing the party’s rights in a condemnation proceeding prior to time of filing of the special commissioners’ award. For purposes of this discussion only, we will assume that the subject condemnation proceedings were void.

Appellees rely on Lone Star Gas Company v. City of Fort Worth, 128 Tex. 392, 98 S.W.2d 799 (1936). The Court in Lone Star Gas Company recognized and followed the usual rule that a district court may enjoin an attempt or threatened attempt to take private property for public use by eminent domain when the condemnation proceeding is for any reason void.

The Supreme Court in Tonahill v. Gulf States Utilities Company, 446 S.W.2d 301 (Tex.1969), again considered the problem of jurisdiction of the district court to enjoin parties to a pending condemnation proceeding. In that case it was contended, as basis for jurisdiction of the district court to enter an injunction, that the entire condemnation proceeding was void. The Supreme Court wrote: “The right of appeal affords petitioner an adequate remedy for anything that may occur in the condemnation proceedings up to and including the award of the special commissioners. There was no occasion then for the district court to enjoin the proceedings . . . The Supreme Court recognized, however, that the district court could entertain an injunction “. . .in the event of an attempt [by the condemning authority] to enter upon or damage his [petitioner’s] land under the colorable authority of a void condemnation proceeding.”

In Norman v. City of San Antonio, City Pub. Serv. Bd., 467 S.W.2d 199 (Tex.Civ. App.1971, no writ), the San Antonio Court of Civil Appeals followed Tonahill. In Norman the landowners filed suit in district court to enjoin the City of San Antonio from proceeding with its action to condemn lands for an electric transmission line. At the hearing on the landowners’ application for temporary injunction the district court dismissed the injunctive suit. The hearing before the special commissioners was conducted and thereafter the commissioners entered an award. The award was then deposited and the City’s crew took partial possession of the land.

Chief Justice Barrow in Norman recognized the rule in Tonahill that the district court may not interfere by injunction with the proceedings which occur up to and include the award of the special commissioners. Justice Barrow also recognized the corollary rule in Tonahill that the district court has jurisdiction to enjoin the condemning authority from attempting to enter upon or damage the land in issue under the colorable authority of a void condemnation proceeding. Accordingly, the Court held that the award of the special commissioners and the deposit of that sum would not deprive the district court of jurisdiction to enjoin an attempt by the condemning authority to enter upon or damage appellant’s land under the colorable authority of a void condemnation proceeding.

Tonahill and Norman are disposi-tive of this appeal. The district court is empowered to enjoin an attempt by the condemnor to enter upon or damage one’s land under the “. . . colorable authority of a void condemnation proceeding.” The district court, to the contrary, is not empowered to enjoin those condemnation proceedings which occur up to and including the award of the special commissioners.

At the time appellees obtained the temporary injunction the Regents had not entered upon or damaged appellees’ land, but instead the special commissioners had never conducted a hearing. As a result, under the rules of Tonahill and Norman, the district court was not empowered to enjoin the Regents from going forward.

Judgment is here rendered vacating the temporary injunction.

Judgment Vacated.

Appellees’ motions for rehearing will be overruled on July 26, 1978. Upon filing by appellees Comanche Apartments, Incorporated, and Austin National Bank, Trustee, of a supersedeas bond in the sum of $10,000, the effect of the judgment of this Court is to be superseded until final disposition of this cause by the Supreme Court of Texas. Great Am. Mtg. Inv. v. Republic of Tex. Sav. Ass’n, 538 S.W.2d 146 (Tex.Civ.App. 1976, no writ).


author: McDONALD, Chief Justice.

text:
    L. W. LITTLEJOHN, Appellant, v. Audrey Estelle Daniels KARIEL, Appellee.
    No. 5891.
    Court of Civil Appeals of Texas, Waco.
    June 22, 1978.
    Alan Schulman, Vinson & Elkins, Houston, Bernard C. Reeves, Fairfield, for appellant.
    Ernest F. Smith, Marshall, Phillip Brin, Longview, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Littlejohn from a take-nothing judgment in a suit for declaratory judgment that two mineral deeds were void.

Plaintiff Littlejohn sued defendant Kar-iél (sole devisee of the will of George Daniels) to determine ownership of interests in realty conveyed to Daniels on September 26, 1923, and on October 31, 1923 by W. M. Goolsby. Plaintiff asserted the conveyances void because of inadequate description of the land covered in each conveyance.

Defendant answered by general denial and plea of not guilty.

Trial was to the court, which rendered judgment “the instruments attacked by plaintiff are not void because of inadequate description of the land covered thereby”, and decreed plaintiff take noting.

The trial court filed Findings and Conclusions summarized as follows:

Findings of Fact

1. On December 2,1908 Josephine Carroll conveyed Wood M. Goolsby 110 acres in the John Lawrence survey and 17 acres in other surveys for a total of 127 acres in Freestone County.

2. On September 26, 1923 Goolsby conveyed to G. Daniels (father of defendant Kariel), ½ interest in all the oil, gas and other minerals in and under the following described lands in Freestone County, Texas, to wit:

“Being 50 acres, a part of the 110 acre tract which is a part of the J. Lawrence Survey in said County and State, and said 50 acres being off the South end of said 110 acre tract, a part of said Lawrence Survey”, (for a consideration of $100. cash).

3. On October 31, 1923 Goolsby conveyed to G. Daniels (father of defendant Kar-iel), interest in all the oil, gas and other minerals in and under the following described lands in Freestone County, to wit:

“Being fifty acres off the North part of that certain one hundred ten acre tract of land, a part of the John Lawrence Survey in said County and State, more fully described in deed dated December 2, 1905, by Mrs. Josephine Carroll to Wood M. Goolsby and said deed being recorded in Vol. 30 page 314 Deed Records of Freestone County, Texas, to which reference is here made”, (for a consideration of $100. cash).

4. On November 10, 1923 Goolsby conveyed Johnson and Sheffield a mineral interest explaining the prior conveyances to G. Daniels by reciting:

“Conveyance is here made of the following lands being 10 acres between the North 50 acres and the South 50 acres previously conveyed to Daniels and 6 acres, a part of the Larsen Survey out of the NW corner of said Survey and 11 acres out of the NW corner of the J. Irvins Survey, Keechi Creek being the North boundary line of both the 6 and 11 acre tracts”.

5. On November 9, 1923 Goolsby explained the prior conveyances of minerals to G. Daniels in making a mineral lease to Weatherbolt of 5 acres out of the middle 10 acres of the 110 acres in the Lawrence Survey by reciting therein:

“Also it lies on the East side of 50 acre tract leased to S. V. Strickland and H. B. Carpenter near the middle portion of said 110 acre tract and joins on the South and the North each of 2 50 acre tracts described in Royalty Contracts to G. Daniels * * and the East line of the 50 acre tract is a part of the East line of said 110 acre tract and its West line is a part of the East line of said abovementioned lease”.

6. On August 2, 1941 Goolsby accepted a quit claim from Doering and others reciting:

“Conveyance is here made of the following tract being 10 acres between the North 50 acres and the South 50 acres previously conveyed to Daniels”.

7. Goolsby on January 9, 1943 conveyed J. E. Hamm all the lands out of which the mineral conveyances had been carved.

8. On December 17, 1958 plaintiff Little-john acquired such property from the heirs of Hamm; and all the above instruments were in chain of title of plaintiff and were of record at the time.

9. Defendant Kariel is the sole heir of G. Daniels.

10. The 127 acres (Finding 1) was surveyed (Exhibit 8) and is in the East part of 470.23 acres surveyed.

11. The survey of the 127 acres shows the North boundary line meanders and the Northeast and Southwest boundary lines are not parallel.

12. The so-called 110 acres of the J. Lawrence Survey actually contains 106.672 acres and the boundary lines are not parallel.

Conclusions of Law

1. Each of the 2 mineral conveyances acquired by G. Daniels is sufficient within itself to identify the land in question.

2. The effect of the 1st mineral conveyance was to convey G. Daniels ½ the minerals off the South 50 acres of the 110 acre tract owned by Goolsby in the J. Lawrence Survey.

3. The effect of the 2nd mineral conveyance was to convey G. Daniels ½ of the minerals under the North 50 acres of the 110 acre tract owned by Goolsby in the J. Lawrence Survey.

4. Since each mineral conveyance was sufficient within itself as a conveyance plaintiff is not entitled to relief.

5. The consideration paid for the 2 conveyances and subsequent conveyances by Goolsby, predecessor in title to plaintiff and defendant, demonstrate that the intention of the parties was to convey Daniels ½ the minerals under the South 50 acres and under the North 50 acres of the 110 acres owned by Goolsby in the J. Lawrence Survey. Plaintiff is in the chain of title subsequent to the mineral conveyances made by his predecessor in title to Daniels and to others, and had constructive knowledge at the time of the acquisition of his conveyance of the mineral conveyances relied on by defendant and of the construction placed thereon by the common predecessor in title of both of them.

6. The equities are with defendant and against plaintiff.

7. Plaintiff’s request for declaratory relief should be denied.

8. Defendant did not prove any equitable defenses to plaintiff’s suit.

9. There is no evidence plaintiff unreasonably delayed in filing suit.

Plaintiff appeals on 20 points contending among other matters:

1) The trial court erred in refusing to declare the conveyance dated September 26, 1923 void because as a matter of law the description of the lands contained therein is insufficient under the Statute of Frauds.

2) The trial court erred in refusing to declare the conveyance dated October 31, 1923 void because as a matter of law the description of the lands contained therein is insufficient under the Statute of Frauds.

While Texas employs a rather strict application of the statute of frauds and conveyances, yet the words of description are given a liberal construction in order that a conveyance may be upheld. Parol evidence is admitted to explain the descriptive words and to identify the land where the instrument contains a “nucleus” of description. Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247; Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703; Miller v. Hodges, Tex. Comm.App., 260 S.W. 168.

To be sufficient the writing must furnish within itself, or by reference to some other writing, the means or data by which the land to be conveyed may be identified with reasonable certainty. Kmiec v. Reagan, Tex., 556 S.W.2d 567; Morrow v. Shotwell, Tex., 477 S.W.2d 538.

The September 26, 1923 conveyance described the land:

“Being 50 acres a part of the 110 acre tract which is part of the J. Lawrence Survey in said county and State and said 50 acres being off the South end of said 110 acre tract a part of said Lawrence Survey”.

Such description refers neither to any other existing writing nor to any data which may be used to identify the land. While the 50 acres is “off the South end of said 110 acre tract a part of said Lawrence Survey”, the 110 acres is not located within the Lawrence Survey. There is no reference to any other writing which might identify the land. See Morrow v. Shotwell, supra; Smith v. Sorelle, supra; Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980.

The trial court’s conclusion that the September 26 conveyance is sufficient within itself to identify the land in question is erroneous, and contention one is sustained.

The October 31,1923 conveyance described the land:

“Being 50 acres off the North part of that certain one hundred acre tract of land a part of the John Lawrence Survey in said County and State more fully described in deed dated December 2, 1908 by Mrs. Josephine Carroll to Wood H. Goolsby and said deed being of record in Vol. 30 p. 314, Deed Records of Freestone County, Texas to which reference is hereby made for all purposes”.

This deed is in evidence and describes 127 acres out of the NE corner of the 460 acres purchased by Wm. David from L. R. Wort-ham, and being part of the John Lawrence, a part of the R. Lawson and a part of the James Ivins Surveys in Freestone County * * * and;

“Beginning at a rock in the North line of the John Lawrence Survey, which is the SE corner of the James Ivins 72 acre survey and the SW corner of the James McAnulty Survey, a P O brs S. 54 E 6.5 vrs and a P O brs S 61 W 5.6 vrs; Thence S 37 E with the E line of the said 460 acre 1268 vrs to a stake whence a P 0 25 in brs N 7 W 11 ¾ vrs, and a P O 24 in brs S 68 E 15 vrs the same being the NE corner of J C Davids 100 acre tract;
Thence S 53 W with J C Davids N line 480 vrs to a rock in the field, the SE corner of M E Cabiness 127 acre tract; Thence N 37 W with her East line 1432 vrs to the creek;
Thence down the creek with its meanderings in a N Easterly course to the under-section of said creek with the E line of the James Ivins Survey of 72 acres. Thence S 37 E with said line 275 vrs to the beginning”.

When the foregoing is platted out it crosses the Lawson and Ivins Survey lines where they join the Lawrence Survey, and describes 17 acres in the Lawson and Ivins surveys and 110 acres in the Lawrence Survey.

A reasonable certainty of description is all that the law requires. Conviction beyond all peradventure of doubt is not necessary. Gates v. Asher, supra.

We think the description in the October 31, conveyance together with the “nucleus” or reference to the 1908 deed describing the 127 acres in the Lawrence, Lawson and Ivins Surveys by metes and bounds a sufficient description under the authorities cited.

The record leaves little doubt that the parties knew and understood what property was intended to be conveyed in both tracts. And a surveyor by search of the records has located the property on the ground. And plaintiff was on constructive notice of information in his chain of title from common source as to the construction made of the instruments by common predecessor in title.

Nevertheless, the foregoing will not give validity to the September 26 conveyance, and defendant did not plead estoppel or other equitable defenses to plaintiff’s cause of action.

Sustaining of contention 1 requires a reversal of the judgment. We however remand to the trial court in the interest of justice under the rule laid down in Morrow v. Shotwell, supra, and Scott v. Liebman, Tex., 404 S.W.2d 288; Kandy, Inc., v. Presslor (Waco, Tex.Civ.App.) NRE, 556 S.W.2d 99. Accordingly the case is remanded to the trial court in its entirety, where the parties may amend their pleadings if they see fit.

REVERSED & REMANDED.

      . The deed is actually dated December 2, 1908.


author: RAY, Justice.

text:
    Bill WATKINS et al., Appellants, v. NEW DIANA INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 8561.
    Court of Civil Appeals of Texas, Texarkana.
    June 27, 1978.
    Clifton L. Holmes, Kilgore, for appellants.
    Welby K. Parish, Parish & Smith, Gilmer, for appellees.
   RAY, Justice.

This is an appeal from an order of the District Court of Upshur County dismissing appellants’ (plaintiffs), Bill Watkins, et al., cause of action in an ad valorem tax suit. Appellants filed their petition, as taxpayers and residents of the New Diana Independent School District, seeking injunctive relief against appellees, the school district and certain named members of the school district board of trustees and board of equalization. Appellants sought and obtained a temporary restraining order against appel-lees. Subsequently the court conducted a hearing on appellants’ application for a temporary injunction and considered appel-lees’ motion to dismiss the case. The court ultimately sustained appellees’ motion to dismiss without formally ruling on appellants’ application for a temporary injunction. Appellants had sought to enjoin the approval of a tax roll which appellants alleged had been prepared under and based upon a plan or scheme of evaluation which was fundamentally erroneous and arbitrary and to enjoin the collection of the school tax.

Appellants have perfected their appeal and submit one point of error for our consideration. The point of error is as follows:

“The trial court erred in granting Defendants’ Motion to Dismiss.”

Appellees’ motion to dismiss states (1) that the appellants failed to state a cause of action; (2) that the appellants failed to show that the board of equalization acted fraudulently; and, (3) that the plan of assessment is fair to all property owners and is not discriminatory.

Appellants’ cause of action was not subject to involuntary dismissal at the time the trial court entered its order. If the court found that appellants had not stated a cause of action, then the appellants should have been afforded an opportunity to amend their pleadings. 4 McDonald’s, Texas Civil Practice, Sec. 17.17, p. 97 (1971); 20 Tex.Jur.2d, Dismissal, Etc., Sec. 29, p. 210; Harold v. Houston Yacht Club, 380 S.W.2d 184, 186 (Tex.Civ.App. Houston 1964, no writ). Even if the trial court was of the opinion that the temporary injunction should have been denied, the appellants are nevertheless entitled to a trial upon the merits to determine whether they should receive a permanent injunction. Owens-Illinois, Inc. v. Little Cypress-Mauriceville Independent School District, 481 S.W.2d 477, 483 (Tex.Civ.App. Beaumont 1972, no writ).

Appellees suggested at oral argument that the matters complained of by appellants are now moot. We find such contentions to be without merit. The same contentions were made in Owens-Illinois, Inc. v. Little Cypress-Mauriceville Independent School District, supra, and were thoroughly discussed and found wanting.

We hold that the trial court erred in dismissing the cause of action of the named appellants. The case is reversed and the cause remanded to the trial court for further proceedings.