author: WARREN, Justice. EVANS, Justice,

text:
    CITY OF MISSOURI CITY, Texas, Appellant, v. Mrs. Oliver SENIOR et al., Appellees.
    No. 17291.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 17, 1979.
    Rehearing Denied June 14, 1979.

      Olson & Olson, William A. Olson, Houston, for appellant.
    Butler, Binion, Rice, Cook & Knapp, Claude C. Roberts, Houston, Roane, Schwartz & Kalinowski, Don T. Schwartz, Rosenberg, for appellees.
   WARREN, Justice.

This is an appeal by the City of Missouri City, Texas, from a judgment of the trial court holding two of its annexation ordinances void.

On October 19, 1965, appellant acting through its city council passed ordinance 102, thereby annexing what purported to be 89.281 acres of land owned by Dr. Hampton Robinson. He is not a party to the suit. On May 28, 1968, appellant acting through its city council passed ordinance 116 thereby annexing land owned by the appellees, Mrs. Oliver Senior, W. R. Senior, Anderson Brothers Farm, Incorporated and Ben Anderson.

Trial was to the court. The issue most vigorously contested was the sufficiency of the description of the land encompassed and purportedly annexed by ordinance 102. It is undisputed that the land purportedly annexed by ordinance 102 was contiguous to the then existing city limits. The land annexed by ordinance 116 was not adjacent to the city limits unless ordinance 102 effectively annexed the tract of Dr. Robinson.

In the trial court appellees contended (1) that ordinance 102 was void ab initio because the legal description contained in the ordinance was deficient and (2) as a consequence, ordinance 116 was void because it purported to annex territory which was not adjacent or contiguous to the city limits.

The court found inter alia that:

(1) The description contained in ordinance 102 is impossible to close the boundary or area to be annexed and therefore is insufficient to describe any land, or territory to be annexed to the City of Missouri City, Texas.
(2) That the appellee had legal status and standing to maintain this suit both as to ordinance 102 and 116.
(3) That since ordinance 102 is void ab initio, ordinance 116 is void ab initio because appellant, without authority of law or color of law purported to annex lands and territory described by ordinance 116 which were not contiguous or adjacent to the city limits of the City of Missouri City, Texas.
(4) That the action of the city council in passing ordinance 116 was void ab ini-tio and without authority of or color of law.
(5) That neither ordinance 102 nor 116 had been validated by the legislature.

Appellant claims the trial court erred in failing to dismiss plaintiffs’ challenge against the two ordinances because the challenges constitute a collateral attack upon an ordinance, valid on its face, which was adopted pursuant to and under color of law. In Texas, private parties may collaterally attack an annexation ordinance if (1) they are directly affected by the ordinance and (2) the ordinance is void ab initio. Deacon v. City of Euless, 405 S.W.2d 59 (Tex.1966); City of Houston v. Harris County Eastex Oaks Water and Sewer District, 438 S.W.2d 941 (Tex.Civ.App.—Houston [1st Dist.] 1969, ref’d n. r. e.).

It was stipulated that Missouri City has assessed ad valorem taxes on the lands encompassed by ordinance 116. The imposition of this tax satisfies the first threshold requirement. Deacon, supra.

In order to satisfy the second threshold requirement, the allegations must, if proved, demonstrate that the ordinance was void ab initio and not just voidable for irregularities. A legal description which does not close is void. State ex rel Rose v. City of LaPorte, 386 S.W.2d 782 (Tex.1965). An ordinance which purports to annex non-adjacent territory is void ab initio. City of Houston v. Harris County Eastex Oaks Water and Sewer District, supra. For these reasons, the appellees had standing to collaterally attack these ordinances. Appellant’s points of error 5 and 6 are overruled.

Appellant’s points of error one, two, three, and four assert that the trial court erred in finding that the description of the territory annexed by ordinance 116 was not adjacent to the corporate limits of the city. The crux of the trial court’s finding was the insufficient description of the boundaries of ordinance 102. It is conceded that if the ordinance 102 defines boundaries which close, then the land annexed by ordinance 116 would be adjacent to the city. A city annexation ordinance containing an inadequate description which does not close after standard rules of construction and surveying practices are employed, is void. Rose, supra. If the description cannot be literally applied due to an inaccuracy, a reasonable construction of the ordinance as a whole must be made to carry into effect the intent of the municipality. State ex rel. American Manufacturing Co. v. City of Fort Worth, 339 S.W.2d 707, 709 (Tex.Civ.App. —Fort Worth 1960, ref’d n. r. e.).

The description contained in ordinance 102 was copied verbatim from the petition for annexation submitted by the landowner, Dr. Hampton C. Robinson. Both descriptions omitted one call and further misstated or omitted four intermediate calls. Due to these inaccuracies the standard surveying technique of reversing the calls could not be employed. It is also undisputed that by referring merely to the petition for annexation and the annexation ordinance the boundaries did not close. In the trial court, a surveyor called by appellant testified that the description could be closed by conducting a survey on the ground and by reference to the deed records. A surveyor called by appellees testified that it was impossible to close the boundaries and thereby enclose a tract of land.

The first two calls in the description conflicted. These calls read as follows:

First Call:
BEGINNING in the center line of Oyster Creek, 200.7 feet North of a 1 inch iron pipe set in the Northeast right-of-way line of the Sugar Land Railroad for corner, being the city limit line of Missouri City, Texas, and the Northwest corner of said 89.281 acre tract.
Second Call:
THENCE South 52 degrees 27 minutes West 200.7 feet to a 1 inch iron pipe set in Northeast right-of-way line of the Sugar Land Railroad for corner, being on the city limit line of Missouri City, Texas.

Both surveyors testified that one of the calls was inaccurate because they do not run on the same course. Appellees’ survey- or testified that this conflict was confusing and created an ambiguity as to the true point of beginning. Appellant’s surveyor reconciled this conflict by locating the iron stake called for in the first call (point B), from which point he reversed the second call, turned the angle, and measured 200.7 feet to establish the northeast corner (point A). Having established points A and B, both surveyors could then establish the next point (point X) by following the third call which supposedly established the southeast corner. This call and the fourth call read as follows:

Third Call:
THENCE South 37 degrees 33 minutes East 2,476.7 feet along the North right-of-way line of said railroad to Southeast corner of said 89.281 acres of land.
Fourth Call:
THENCE up-stream along centerline of Oyster Creek following its meanders . to Northwest corner of said 89.281 acres of land, the place of beginning, being an 89.21 acre tract out of the David Bright League, Abstract 13, Fort Bend County, Texas.

At point X, the appellant’s surveyor found a two inch iron pipe and an old corner post. According to the next call, the final boundary was to be established by going upstream along the centerline of Oyster Creek. Point X, however, was a considerable distance west of the creek. It became apparent that the southwest corner had been established (not the southeast) and that one or more calls had been omitted in toto.

Being familiar with the land, Appellant’s surveyor knew that the creek was located to the east of point X. When he looked in this direction he noted a straight tree line running from the proximity of the old corner post and iron stake to the creek. Appellant’s surveyor believed that the missing point (point C) was at the intersection of the tree .line and the centerline of the creek. Neither the iron stake, the corner post, nor the tree line were mentioned in the ordinance. Appellees’ surveyor testified that he did not notice the corner post, the iron stake or the tree line near point X. No photographs or other demonstrative evidence was introduced to substantiate the testimony of the appellant’s witness.

Appellant’s surveyor employed two methods to verify the accuracy of this missing point. First, he reversed some of the intermediate calls in the last call which he found to match the meanders of the centerline. Second, he searched the deed and map records of the county and discovered that Dr. Robinson owned only one 89.21 acre tract in the David Bright League. He then examined this deed and found the missing call which, when used, came within one foot of his point C.

Omitted calls may not be added to an annexation ordinance by showing that the enacting body intended the call to be included. Rose, supra. In the Rose case, the members of the city council and the mayor attempted to testify as to their intent. In the instant case, the surveyor went to the deed records, which were not referred to in the ordinance or petition, to determine the city council’s intent. Neither is an acceptable procedure. The description in. the ordinance must be relied upon to the exclusion of extraneous records, unless referred to in the ordinance, or unless a latent ambiguity arises from extraneous facts. City of Houston v. Harris County Eastex Oaks Water and Sewer District, supra.

In the instant case there are numerous errors patent in the ordinance. There is too much extraneous information which needs to be supplied in order to close the boundaries. After employing the appropriate rules of construction and considering the testimony of the surveyors, the trial court did not err in concluding that field notes contained in ordinance 102 did not close. The court also correctly held that the area annexed by ordinance 116 was not adjacent to the corporate limits of the city and was therefore void.

Appellant’s seventh and eighth points of error assert that the trial court erred in holding that neither ordinance had been validated by Tex.Rev.Civ.Stat.Ann. arts. 974d-12, 974d-13, 974d-19, 974d-21, 974d-22 or other general acts of the legislature.

It is clear that the legislature is empowered to validate any act which it is empowered to authorize. City of Waco v. City of McGregor, 523 S.W.2d 649 (Tex.1975). The legislation, however, must evidence a clear intention to validate an ordinance failing to comply with the traditional requirements of the municipal annexation act. In Waco, the court held that article 974d-12 did not validate the purported annexation of nonadjacent territory. In the instant case, the area purportedly annexed by ordinance 116 is not adjacent to the city limits because of the insufficiency of ordinance 102. The validating provision of article 974d-21 is similar to article 974d-12, and therefore, did not validate ordinance 116. Our conclusion is buttressed by another annexation ordinance, not applicable to the instant case, which expressly waives compliance with the Municipal Annexation Act. See e. g. Tex.Rev.Civ.Stat.Ann. 974d-14.

Articles 974d-19 and 974d-22 are not applicable to the instant case because they contain clauses excluding those towns and/or cities involved in boundary dispute litigation. The effective date of both of these statutes was after the instant suit was instituted (but before ordinance 102 had been explicitly attacked).

Articles 974d-12 and 974d-13 are not applicable to the instant case because their effective dates were prior to the city council’s passage of ordinance 116.

We further hold that ordinance 102 was not validated by any of the above cited statutes. These article do not import the necessary information to correct the patent errors and omissions. Ordinance 102 was, and still is, insufficiently described.

It is undisputed that most of the territory embraced by ordinance 116 is beyond the extraterritorial jurisdiction of the City of Missouri City. This is in violation of Art 970a, Y.A.C.S., Municipal Annexation Act, and would render the annexation of this territory void. City of Waco v. City of McGregor, 523 S.W.2d 649 (Tex.1975). However, the last pleadings filed by appel-lees in the trial court were void of any allegations that the territory annexed by ordinance 116 was beyond the extraterritorial jurisdiction of appellant. Over proper objection by appellant, testimony was admitted during the trial concerning this, and the trial court found (1) that at all times material to the suit the extraterritorial jurisdiction of Missouri City was one-half mile from the corporate limits of Missouri City, and (2) that substantially all of the lands and premises described in ordinance 116 was located more than one-half mile from the corporate limits of Missouri City. We hold that the introduction of such testimony was improper and that this issue was not properly before the trial court or this court for consideration.

The judgment of the trial court is affirmed.

EVANS, J., dissenting.

EVANS and WALLACE, JJ., also sitting.

EVANS, Justice,

dissenting.

I am unable to agree with the majority of the court that the description contained in Ordinance 102 is fatally defective and that the ordinance is, therefore, void ab initio. It was the plaintiffs’ burden to establish the invalidity of the Ordinance 102, and, in my opinion, this burden was not met.

The record shows that on September 30, 1965, Dr. Hampton C. Robinson, Jr., petitioned the mayor and governing body of the city of Missouri City, Texas, to extend the city limits so as to annex a described tract of 89.281 acres in the David Bright League, Abstract 13 in Fort Bend County, Texas.

In his petition, Dr. Robinson represented that he was the owner of the 89.281 acre tract, and the evidence is undisputed that there was then recorded in the deed records of Fort Bend County, Texas a deed from Jessie Agnew to Dr. Hampton C. Robinson, Jr., conveying a tract of 89.281 acres in the David Bright League, Abstract 13, Fort Bend County, Texas, by metes and bounds as follows:

Being an 89.281 acre tract out of the David Bright League Abstract 13, Fort Bend County, Texas:
Beginning at a 1 inch iron pipe at the intersection of Oil Field Road and Thompsons Ferry Road, said pipe being at the common corner of the David Bright, William Stafford, William Little and Elijah Roark Leagues;
Thence North 89 degrees 09 minutes East along the common line of the David Bright and Elijah Roark Leagues 3,343.7 feet to a point in the Northeast right-of-way line of the Sugarland Railroad 75 foot wide right-of-way;
Thence North 37 degrees 33 minutes West along said Railroad right-of-way 680.5 feet to a 1 inch iron pipe set for corner and the place of beginning of the herein described tract;
Thence North 88 degrees 42 minutes East at 1809.5 feet pass a 2 inch iron pipe found on the West bank of Oyster Creek and continuing for a total distance of 2,021.3 feet to a point in the centerline of Oyster Creek for a corner;
Thence up-stream and along the cen-terline of Oyster Creek following its meanders to-wit:
North 59 degrees 02 minutes West 716.2 feet; North 77 degrees 41 minutes West 190.0 feet; South 88 degrees 09 minutes West 680.0 feet; North 85 degrees 06 minutes West 200.0 feet; North 50 degrees 49 minutes West 255.0 feet; North 19 degrees 49 minutes West 337.0 feet; North 22 degrees 41 minutes East 224.7 feet; North 49 degrees 11 minutes East 1045.0 feet; North 35 degrees 41 minutes East 200.0 feet; North 09 degrees East 200.0 feet; North 09 degrees 37 minutes East 380.0 feet; North 04 degrees 53 minutes West 200.0 feet; North 54 degrees 53 minutes West 235.0 feet; South 87 degrees 37 minutes West 140.0 feet; South 67 degrees 37 minutes West 220.0 feet; South 53 degrees 07 minutes West 1,004.0 feet; South 73 degrees 07 minutes West 330.0 feet; South 86 degrees 37 minutes West 202.5 feet; North 79 degrees 23 minutes West 375.0 feet; North 70 degrees 23 minutes West 120.0 feet; and North 43 degrees 51 minutes West 119.8 feet.
Thence South 52 degrees 27 minutes West 200.7 feet to a 1 inch iron pipe set in the Northeast right-of-way line of the Sugar land Railroad for a corner;
Thence South 37 degrees 33 minutes East 2,476.7 feet along the northeast right-of-way line of said railroad to the place of beginning and containing 89.281 acres of land.

A sketch indicating the corners of the 89.281 acres in question is set forth below:

It is also undisputed that at the time of the filing of the petition for annexation and the enactment of Ordinance 102, Dr. Hampton C. Robinson, Jr., only owned the tract of 89.281 acres in the David Bright League, Abstract 13 in Port Bend County, Texas.

On October, 19, 1965, the City Council of the city of Missouri City, Texas, enacted Ordinance 102, annexing to the city of Missouri City a tract of 89.281 acres described by the same metes and bounds field notes as were contained in the petition for annexation. The field note description contained in the petition and ordinance is similar to the description contained in the deed to Dr. Robinson; however, the field notes in the petition and ordinance begin at the northwest corner of the tract (point B on the sketch) instead of the Southwest corner (point X) and there is omitted from the description in the petition and ordinance a call for the south line of the tract (point X to point C). It is principally on the basis of this omitted call that the plaintiffs contend that the field note description in Ordinance 102 does not close and that the boundaries of the 89.281 acre tract cannot, therefore, be located on the ground.

Mr. Henry Steinkamp, a registered professional engineer and surveyor, was called as an expert witness by the city of Missouri City. Mr. Steinkamp testified that he had surveyed about 50% of the tracts of land in Fort Bend County over the past 22 years and that he was familiar with the tract of land in question. He had conducted an actual ground survey of the tract and located its boundaries on the ground. It was his professional opinion that the boundaries of the tract closed.

Mr. Steinkamp testified that he was familiar with the location of the 89.281 acre tract and that he had determined by checking the deed records and ownership maps in his office that there was only one 89.281 acre tract of land owned by Dr. Robinson in the David Bright League. A comparison of the description contained in the deed to Dr. Robinson with the description contained in the ordinance showed that the call for course and distance from point X to point C had been omitted from the ordinance description.

In making his ground survey, Mr. Stein-kamp first located the northwest comer of the tract at point B, finding a one inch iron pipe in the east line of the railroad right-of-way called for at that location. From that point he reversed the course called for in the field note description and measured 200.7 feet to establish point A.

Mr. Steinkamp then located the southwest corner of the tract at point X by running the called course (south 37 degrees 33 minutes east) along the east line of the railroad right-of-way the called distance of 2476.7 feet, at which point he found a one inch iron pipe (called for in the deed to Robinson beside an “old corner post.”

From point X, Mr. Steinkamp observed a tree line “that’s been there for many, many years, large trees, just a straight line down toward . the creek.” Proceeding down this old tree line until he intersected Oyster Creek, he located point C “within a foot or so” of the called distance reflected in the deed to Dr. Robinson. From point C, Mr. Steinkamp traversed the meanders of Oyster Creek to point A, noting in several instances, that the ordinance description had, in error, omitted or reversed certain calls for course and distance.

In order to confirm his ground location of the southwest corner of the tract at point C, Mr. Steinkamp made an overlay of the first five or six meanders of Oyster Creek running northerly from point C, and by comparing this overlay with a map on which he had plotted the calls for courses and distances contained in the ordinance description, he found a precise match between the angles and distances of the ground meanders and the courses and distances called for in the description.

Mr. Steinkamp testified that based upon his ground survey and his comparison of the descriptions contained in the deed to Dr. Robinson and in this ordinance, it was his professional opinion that the tract described in the deed was the same land as that described in the ordinance.

Where a descriptive call is inadvertently omitted from an instrument in a party’s chain of title, and from data contained within the instrument itself or by reference to other admissible evidence, a surveyor may locate the property on the ground, the defect does not render the instrument void for want of certainty. Montgomery v. Carlton, 56 Tex. 431, 433 (1882). If, at the time the surveyor is locating the described tract on the ground, an ambiguity is found which did not appear on the face of the instrument, resort may be had to extrinsic evidence, even parol evidence, to assist in locating the tract in accordance with the intention of the parties. Humble Oil & Refining Co. v. Ellison, 134 Tex. 140, 132 S.W.2d 395, 398 (1939).

Reading the ordinance description in question, the last call for the center line of Oyster Creek would appear to be located at point X, at its intersection with the north right-of-way line of the railroad. Thus, insofar as indicated on the face of the ordinance, no ambiguity is shown, and it is only when the description is applied to the ground that the defect becomes apparent. It was, therefore, entirely proper for the surveyor to consider evidence extraneous to that shown on the face of the instrument in order to identify the ground location of the tract.

In locating the boundaries of the tract in question, it was appropriate for the survey- or to consider not only the ground objects called for in the field notes but also other ground markings which tended to support a reasonable interpretation of the field note description. Brateman v. Upper Channel Site Co., 378 S.W.2d 882 (Tex.Civ.App.—Houston, 1964, writ ref’d n. r. e.). Where many years have passed and one or more of the objects called for in the original field notes have disappeared, other evidence may be considered which assists in the location of the footsteps of the original surveyor and which tends to show the parties’ interpretation of their ownership. Angelina County Lumber Co. v. McKnight, 265 S.W.2d 246 (Tex.Civ.App.—Waco 1954, writ ref’d n. r. e.).

It was also proper to look to the description contained in the deed to Dr. Robinson to gain information with respect to the true location of the tract on the ground. The petition for annexation made express reference to Dr. Robinson’s ownership, and it was also shown that he only owned one tract of land in the survey answering the description contained in the petition and ordinance. The statement of ownership in the ordinance proceedings constituted a sufficient basis for investigation of the deed records to identify Dr. Robinson’s ownership within the survey. Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222, 223 (Tex.1949).

The plaintiffs called Mr. William Miller, a state licensed land surveyor and registered public surveyor, to testify on their behalf. Mr. Miller testified that he had reviewed the field notes contained in the ordinance, but he had not made a ground survey of the tract of land. He had been out to the property, made a “ground observation”, and had “looked around” for the corners called for in the ordinance. On the basis of his review of the description contained in the ordinance, he was unable to obtain a closure in the boundaries and, therefore, he was unable to locate the tract on the ground.

Mr. Miller testified that he had been unable to find the iron pipe at the northwest corner of the tract (point B), and he had some difficulty locating points A and B because of the discrepancy in the declination contained in the first two calls of the ordinance description. He had made no effort to locate the intersection of the northeast line of the railroad right-of-way and the city limits of Missouri City.

Mr. Miller apparently accepted Mr. Stein-kamp’s point B as the appropriate location of the northeast corner of the tract (at least he made no suggestion of an alternate location), and he conceded that he would have no difficulty locating the northeast corner at point A and the southwest corner at point X by their called course and distance from point B. Thus, Mr. Miller’s testimony did not in any material aspect contradict Mr. Steinkamp’s location of points A, B and X as determined from his ground survey.

In order to locate the southwest corner of the tract, Mr. Miller tried reversing the meander calls of the ordinance description and made an office location of those calls on his plat. He did not make a ground survey, and conceded that his map was “just a geographical description of the location east of the railroad.” He stated that he had been on the ground near point X, but had not made any particular effort to look for the iron pipe called for in the deed description. Neither did he notice the tree line extending in a straight line from point X eastward to Oyster Creek, although he testified that if he had observed such a tree line, it would have been significant to him as a surveyor.

Q Mr. Miller, is it not a fact that there’s an old tree line extending from Point X over to Point C in a straight line?
A Mr. Olson, that I don’t know because in looking at Point C and X, we see on that map, I have to say again that that was an interpretation of the figures and facts and the field notes here and not the results of an on-the-ground ... I didn’t make a ground survey, I didn’t go on the ground to try to ascertain or do re-tracings you might say.
Q Right, sir. Well, you obviously located one method or another as what was designated here as Point B?
A Uh-huh.
Q And you know by looking at the ordinance itself, you have a call down the railroad right-of-way line of 2,476-feet. Did you make any measurements or approximations?
A Approximations or just through what I would call an investigation. I didn’t go out and measure that distance there to down there with a tape or surveyor’s chain. I just approximated about where it was within the area. I thought possibly that point might be over further, but I don’t have any way of knowing what was along the line that connected the two points.
Q And yet that approximation of that distance in the railroad right-of-way line, if there was a tree line extending in a straight direction or to Oyster Creek, you didn’t notice it?
A I didn’t notice it.
Q If there was a well-defined, straight defined tree line, would that have a significance to you as a surveyor?
A Oh, yes.

Mr. Miller admitted that in making his review of the description contained in Ordinance 102, he had used only the ordinance itself, and he did not look at the petition for annexation or check the deed records. He testified that if he had been furnished the petition showing that Dr. Robinson had represented himself to be the owner of the tract, he would logically have gone to the deed records to gain more information to assist in locating the property.

Thus, it is apparent from the record that Mr. Williams’ surveying conclusions were based principally upon an “office survey”, using only the description contained in the ordinance. His ground observations were made only to see “if anything was obvious which might be representative of any type of corner”, and he made no effort to locate called courses on the ground or to measure called distances. He only platted the ordinance field notes by a computer to see if they would close, and his maps were merely graphic representations of his office interpretations.

The testimony of the surveyor Steinkamp constitutes the only competent evidence as to the proper ground location of the land in question. Mr. Steinkamp’s undisputed testimony shows that he actually found the ground objects called for in the ordinance and deed description for the northwest corner (point B) and in the deed description for the southwest corner (point X) and that such objects were located at their called course and distance. At the southwest corner (point X) he also found an “old corner post” and an old tree line extending to Oyster Creek at almost identical course and distance called for in the deed to Dr. Robinson. Having located point C at the intersection of such line with Oyster Creek, he confirmed that location by making an overlay of the creek’s meanders northward from point C and then comparing that data with the platted meander calls from the field notes description.

The record does not contain any evidence which contradicts in any material way the testimony of Mr. Steinkamp as to the ground objects he found and the measurements that he made. Nor can it be said that his conclusions with respect to the location of the corners of the tract were called into question by any competent evidence. The testimony of the plaintiffs’ surveyor, Mr. Miller, shows that his conclusions were based almost entirely upon an office platting of the ordinance field notes and that he worked without benefit of the data and ground information obtained by Mr. Stein-kamp in making his survey. Thus, since no contrary evidence was offered with respect to Mr. Steinkamp’s location and there being no inconsistency in his testimony which raised any reasonable suspicion as to the validity of his testimony, his conclusions with respect to the location of the boundaries of the tract in question must be deemed conclusive. Texas & Pacific Railway Co. v. Moore, 329 S.W.2d 293, 299 (Tex.Civ.App.—El Paso 1959, writ ref’d n. r. e.): Kamp v. Hargis Building Co., 238 S.W.2d 277, 282 (Tex.Civ.App.—Galveston 1951, writ ref’d n. r. e.).

In Teal v. Powell Lumber Co., 262 S.W.2d 223, 239 (Tex.Civ.App.—Beaumont 1953, no writ) the appellant’s surveying witness gave uncontradicted testimony as to ground objects he had found and measurements he had made, and based thereon, he stated his opinion as to the location of the corners of the survey in question. The trial court, in a non-jury trial, rejected the surveyor’s conclusion, and on appeal the appellees contended that the trial court’s presumed findings should be supported on the basis that it was not required to accept the expert witness’ testimony and could have found “that the witness did not bona fide entertain the opinions which he expressed . . . ” Reversing the trial court’s judgment, the Beaumont Court of Civil Appeals held that the surveyor’s testimony established the location of the survey line, as a matter of law, and that under the state of the record, the finder of fact did not have the right to disregard the witness’ testimony.

Although opinion testimony of an expert witness, even though not contradicted, may ordinarily be disregarded by the trier of facts if more than one possible conclusion can be drawn therefrom, such testimony is to be given conclusive effect where the nature of the subject matter is such that the fact finder must be guided solely by the expert’s opinion and the testimony is credible and free from contradiction and inconsistency. Exxon Corp. v. West, 543 S.W.2d 667, 672 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d n. r. e.).

As a general rule, descriptions of municipal boundaries are not construed with the same strictness as boundaries in grants or contracts. City of Houston v. Harris County Eastex Oaks W & S Dist., 438 S.W.2d 941 (Tex.Civ.App.—Houston [1st Dist.] 1969, writ ref’d n. r. e.); Lower Nueces River Water Supply Dist. v. Cartwright, 274 S.W.2d 199, 204 (Tex.Civ.App.—San Antonio 1954, writ ref’d n. r. e.). State v. City of Fort Worth, 339 S.W.2d 707, 709 (Tex.Civ.App.—Ft. Worth 1960, writ ref’d n. r. e.). However, even if the ordinance description is tested in the same manner as a conveyance, it is sufficiently definite under the evidence presented.

In Ehlers v. Delhi-Taylor Oil Corporation, 350 S.W.2d 567 (1961) no writ, Justice Barrow speaking for the San Antonio Court of Civil Appeals stated:

“. . . the rule in Texas is that a deed is not void for uncertainty of description unless on its face the description cannot, by extrinsic evidence, be made to apply to any definite land. Where the deed affords some data susceptible of being connected, by parol testimony, with some definite land, the description is in law sufficient . . . ” 350 S.W.2d 573.

The whole of the ordinance provisions in question should be reasonably construed in order to carry into effect the intent of the enacting body. State v. City of Fort Worth, supra; State v. City of La Porte, 386 S.W.2d 782 (Tex.1965). A reasonable construction of the description contained in the ordinance does not require the changing of any line in the original field notes nor does it create any additional corners. The omission of a call necessary to make the description close does not render the description void since the ordinance proceedings, considered in their entirety, furnish the data by which the land described can be definitely located on the ground. Grisham v. Tate, 35 S.W.2d 264, 266 (Tex.Civ.App.—Waco 1931, writ dism’d).

It was the plaintiffs’ burden to establish that the boundaries of the land annexed by Ordinance 102 were “wholly beyond possibility of ascertainment”. Lower Nueces River Water Supply Dist. v. Cartwright, supra, at p. 205. In my opinion, the plaintiffs failed to meet this burden by legally sufficient evidence.

I would reverse the judgment of the trial court and remand the cause for a determination of the questions remaining as to whether Ordinance 116 is void as being beyond the extra-territorial jurisdiction of the city of Missouri City, Texas.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    Stanley KRENEK, Individually and d/b/a Humble Yamaha, Appellant, v. WANG LABORATORIES, INC., Appellee.
    No. 6009.
    Court of Civil Appeals of Texas, Waco.
    May 17, 1979.
    Rehearing Dismissed for Want of Jurisdiction June 21, 1979.

      T. D. Smith, Smith & Lamm, Houston, for appellant.
    Morley H. White, Morley H. White & Associates, Houston, for appellee.
   HALL, Justice.

In this case the lessor of certain equipment was awarded the liquidated damages provided for in the lease agreement, after the lessee defaulted in his monthly rental payments. The main question for decision is whether the provision for liquidated damages constituted a penalty and was therefore unenforceable. We hold it was a penalty, and reverse the judgment based upon it.

Plaintiff-appellee Wang Laboratories, Inc., and defendant-appellant Stanley Kre-nek d/b/a Humble Yamaha, entered into a written agreement on April 22, 1974, under which plaintiff agreed to lease certain equipment to defendant for a term of five years and defendant agreed to pay monthly rental of $458.25 beginning July 1, 1974. Additional items of equipment were added to the lease by letter agreement dated July 25, 1974 (denominated “Appendix ‘A’ ” by the parties), and the monthly rental was increased to $817.02.

The description of the leased property is set forth in the original lease agreement and Appendix “A,” as follows:

1 2200B 3 Central Processing Unit (g) $7,800
1 Option 3 Character Edit ROM @ $400
1 2216/17 Combined CRT Executive Display ' Single Tape Cassette Drive (5) $2,300
1 2221 Line Printer (g) $5,400
1 2222 Alpha-Numeric Typewriter Keyboard (cv $700
2 2290 CPU/Peripheral Stands <g) $200/each
1 2230 3 $13,500.00
4 2230 Removable Disk for 2230 $800.00
Retrofit Charge $100.00

The monthly rental charge was then placed beside each of the items as listed above, in the lease. No other description of the property is contained in the record. The significance of the dollar-figures beside each item is not explained in the record. Nor does the record contain an explanation of the function or use of the leased properties.

The original agreement contained many minor covenants in addition to the agreement for monthly rental payments. Its “default clause” provided in pertinent part that: (1) if defendant was in default on a rental payment for as long as ten days, or (2) if he was in default in the performance of any other covenant for as long as 30 days after notice thereof from plaintiff, or (3) if defendant became insolvent or bankrupt or made an assignment for benefit of creditors, or (4) if bankruptcy or other listed “insolvency proceedings” were initiated against defendant, or (5) if defendant’s business materially changed “so as to increase, in Lessor’s opinion,” the risk of default by defendant and plaintiff gave defendant written notice thereof;

“Then in any such case (herein sometimes called ‘events of default’) Lessor at its option may:
(A) Proceed by appropriate court action or actions, either at law or in equity to enforce performance by the Lessee of the applicable covenants and terms of the Lease or to recover damages for the breach thereof; or
(B) By notice in writing to Lessee, terminate this Lease as to all or any part of the equipment leased hereunder whereupon all right, title and interest of Lessee to or in the use of such equipment shall cease and [be] determined, but Lessee shall remain liable as hereinafter provided, and in such event Lessor may, directly or by its agent, enter upon the premises of Lessee or other premises where the equipment may be located and take possession thereof (any damage occasioned by such taking of possession being hereby expressly waived by Lessee and Lessor hereby being released from any liability therefor). In the event of any such termination Lessor (i) shall be entitled to retain all rents and additional sums paid by Lessee hereunder in respect of all equipment, as well as all resale proceeds, refunds and other sums, if any, theretofore paid or received by Lessor including any sums then in Lessor’s possession which, had this Lease not been declared in default, would otherwise be payable to Lessee hereunder, (ii) may re-let all or any part of the equipment for such rentals and upon such terms as Lessor shall elect, or sell all or any part of the equipment at public or private sale and either for cash or upon credit and (iii) shall in addition to all or any rights and remedies hereunder be entitled to recover from Lessee all rents and additional sums accrued and unpaid under any of the terms hereof and a sum equal to the total unpaid rental which would have accrued for the balance, of the term of this Lease less only the net proceeds of any such releasing or sale. ... In addition to the foregoing, Lessor shall be entitled to recover from Lessee any and all damages which Lessor shall sustain by reason of the breach by the Lessee of any of the covenants and terms of this Lease, together with a reasonable sum for attorney’s fees . . ”

The lease agreement was amended on February 27, 1975, by an instrument prepared by plaintiff and signed only by defendant, which in part contained these pertinent provisions:

“It is expressly agreed and understood that I have this date paid to Wang Laboratories, Inc. the sum of $2,857.87 and that on or before March 3, 1975, I shall pay the additional sum of $5,021.18 representing payment for all past due accrued principal payments, interest and attorney’s fees to February 1, 1975 and included in said amount is a payment of $857.87 representing my March 1, 1975 payment. Acceptance of the above payments by Wang Laboratories, Inc. does not waive any of the terms or conditions expressed in the Lease Agreement of April 22, 1974 and Appendix ‘A’ attached thereto and it is further understood and agreed that time is of the essence for all additional payments and terms thereto and I shall promptly remit to Wang Laboratories, Inc. the sum of $857.87 commencing on April 1, 1975 the sum of $857.87 and continuing thereafter until the terms of said lease are fulfilled.
“In the event of default, I hereby agree that the entire Lease Agreement and Appendix ‘A’ attached thereto, shall be accelerated and I shall be liable thereon for all past due principal payments, all accelerated payments, interest thereon at the rate of 10% per annum, costs and all other related charges as provided in said Lease Agreement and Appendix ‘A’ attached thereto, together with attorney’s fees in the amount of Vsrd of the total accelerated amount due under the Lease Agreement and Appendix ‘A’ attached thereto as of February 19, 1975.”

Defendant defaulted on the rental due on August 1, 1976, and thereafter made no payments. Plaintiff took possession of the leased property in December, 1976.

Plaintiff filed this suit on June 13, 1977. It pleaded the lease agreement and its amendments and defendant’s default in the monthly rental payments. Plaintiff sought recovery of the unpaid rentals totaling $30,-025.45, plus attorney’s fees of 33⅛% of that sum, and interest, under the liquidated damages clause in the February, 1975, amendment.

Defendant answered among other things that the provision for liquidated damages was an unenforceable penalty.

After trial was held to the court without a jury, judgment was rendered for plaintiff for the principal amount of $30,025.45, plus $4,000.00 attorney’s fees, and interest. Defendant appeals.

It is clear from the record made on the trial (which we need not detail) that the central issue tried by the parties was whether plaintiff was entitled to recover as its damages the unaccrued rentals under the stipulation therefor in the February, 1975, amendment to the lease, or whether that provision constituted a penalty; and that the court determined the stipulated damage was not a penalty. Findings of fact and conclusions of law filed by the court show that the judgment was based in part on the stated failure of defendant “to offer evidence that the acceleration was intended as a penalty.”

It is now settled that where a contract “ ‘contains several matters of different degrees of importance, and yet the sum named [as liquidated damages] is payable for the breach of any, even the least . the sum stipulated to be paid has been treated as a penalty,’ ” because it violates the principle of just compensation. Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484, 487 (1952).

As we have said, the lease before us contains a large number of minor covenants by defendant, such as maintaining the leased equipment in good repair, and indemnifying plaintiff against claims arising out of the use of the property, and not placing any labeling on the equipment which might be interpreted as a claim of ownership by defendant. Under the lease amendment of February, 1975, a breach of these lesser covenants could trigger termination of the lease and imposition of the liquidated damages against defendant.

Plaintiff asserts the parties intended that the liquidated damages provision in the amendment should apply only in the event of breach by defendant of the major covenant for payment of monthly rentals. There is no evidence to that effect in the record, and the amendment is not worded in that fashion. Doubtless, the main concern of the parties when the amendment was made was payment of the rentals, but the amendment makes direct reference to the original agreement, points to the fact that plaintiff “does not waive any of the terms or conditions” expressed in it, and then provides for acceleration and the damages in question “in the event of default.” If there is doubt on the question under the language of the amendment, that doubt must be resolved against plaintiff because it prepared the instrument. American Lease Plan v. Ben-Kro Corporation, 508 S.W.2d 937, 942 (Tex.Civ.App.—Houston [1st] 1974, writ ref’d n. r. e.).

Under the rule in Stewart v. Basey, supra, the provision in question constitutes a penalty as a matter of law, and it will not support the award of damages to plaintiff.

We also sustain defendant’s point of error to the effect that the evidence is factually insufficient to support the finding that plaintiff suffered actual damages in the amount of $30,025.45.

The judgment is reversed, and this case is remanded for trial.


author: COLEMAN, Chief Justice.

text:
    OKEMAH CONSTRUCTION, INC., Appellant, v. BARKLEY-FARMER, INC., Appellee.
    No. 17398.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 17, 1979.
    Rehearing Denied June 21, 1979.
    David Ford Hunt, Dallas, for appellant.

      Smither, Martin & Haggard, J. M. Haggard, Huntsville, for appellee.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   COLEMAN, Chief Justice.

Okemah Construction, Inc., brought this action to recover the money alleged to be due and owing to it by Barkley-Farmer, Inc., under a contract between the parties dated May 5, 1977. The trial was to the court without a jury and resulted in a judgment for the plaintiff in the sum of $27,-656.16, plus attorney’s fees. The plaintiff was not satisfied with the amount of the judgment and has appealed. Findings of fact and conclusions of law were filed. The judgment will be affirmed as modified.

On May 5, 1977, by a letter agreement, Barkley-Farmer entered into a contract with Okemah under the terms of which Okemah would remove 67 miles of pipe from the ground, cut it into 40 foot lengths and load it onto trailers. Barkley-Farmer agreed to pay Okemah 59 cents per lineal foot of pipe so removed. Okemah agreed to furnish two suitable trailers for use in transporting the pipe and Barkley-Farmer agreed to furnish such additional trailers as might be necessary “to assure a steady and even work flow, weather conditions permitting and taking into account that some 50,-000 lineal feet of pipe will be removed from the ground and loaded on trailers each week.”

Okemah began work on May 18 or 19, 1977 and, according to its president, Mr. Tinkler, encountered delays in performing the contract due to the shortage of trailers to be furnished by Barkley-Farmer. At Tinkler’s request Mr. Farmer, president of Barkley-Farmer, met him on June 4, 1977, to discuss the contract. Mr. Tinkler testified that he told Farmer that Okemah wasn’t making money on the contract and that he would have to cut his crew down in order to try to break even on the job. He testified that he told Farmer that if he wanted him to he would pull off the job.

Farmer testified that at the meeting Tinkler made a demand on him for more money and that he agreed to pay 90 cents a foot under the condition that Tinkler deliver 50,000 feet of pipe a week. Tinkler testified that they agreed on a goal of 50,-000 feet of pipe a week but that maintaining such a schedule was not a condition to the payment of the 90 cents per foot. Farmer also agreed to furnish more trailers.

After the meeting, the work continued and Farmer furnished more trailers. Ok-emah added six or seven men, a side boom and a dozer. Farmer paid Okemah at the rate of 90 cents a foot for the pipe already delivered and paid certain invoices, the last being dated June 28, 1977. No payment was made for invoices # 123 through # 131, totaling $141,283.71. This suit was subsequently filed.

The principal point of contention is the validity of the oral modification of the written contract to provide 90 cents per foot rather than the original agreed compensation of 59 cents a foot. The trial judge found that Mr. Tinkler advised Mr. Farmer at the June 4, 1977, meeting that he must be paid 90 cents per lineal foot or Mr. Tinkler would cut down his crew that was removing the pipe. The defendant agreed to pay plaintiff 90 cents per lineal foot of pipe removed and loaded onto trailers. The defendant paid plaintiff at the rate of 90 cents per lineal foot for some pipe removed and loaded onto trailers by plaintiff.

As its conclusions of law the court found:

“(1) The written contract between plaintiff and defendant of May 5,1977 is a valid and enforceable agreement.
(2) The purported modification of the May 5, 1977 contract is not enforceable by reason of a lack of fresh consideration in that plaintiff promised to do nothing that he was not already bound to do under the written contract.”

The trial court has included in the second conclusion of law a crucial finding of fact, that there was no consideration for the defendant’s promise to pay increased compensation to the plaintiff for its performance under the contract.

The plaintiff contends that the trial court erred in concluding that the modification of the May 5, 1977, contract is not enforceable by reason of a lack of consideration because the defendant had filed no pleading as required by Rule 94, T.R.C.P., alleging failure of consideration.

A consideration is essential to the validity of a simple contract, whether it be verbal or in writing. A written contract implies consideration. Where a cause of action is based on a written contract, the burden rests upon the defendant to plead and prove a want of consideration to defeat the action. Where a cause of action is based on an oral contract the burden is on the plaintiff to plead and prove a cause of action which would include the element of consideration. Wright v. Robert & St. John Motor Co., 122 Tex. 278, 58 S.W.2d 67 (1933); Chittim v. Martinez, 94 Tex. 141, 58 S.W. 948 (Tex.1900); Stone v. Morrison & Powers, 298 S.W. 538 (Tex.Com.App.1927, holding approved); Signs v. Bankers Life & Casualty Co., 340 S.W.2d 67 (Tex.Civ.App.—Dallas 1960, no writ).

There was conflicting testimony as to whether the production of 50,000 feet of pipe was agreed on as a condition to the payment of the increased compensation. By finding no “fresh” consideration, the trial judge necessarily found that the increased production was not a condition but merely a goal. Such a finding is supported by the evidence.

Tinkler’s agreement to continue to work toward the goal of 50,000 feet of pipe a week was no consideration for the promise of increased payment by Farmer. Ok-emah undertook no new burden by the promise, nor did Barkley-Farmer receive anything it was not entitled to receive under the term? of the original contract. A supplemental or amendatory agreement whereby a new or additional obligation is assumed must be supported by a consideration. Stone v. Morrison & Powers, 298 S.W. 538 (Tex.Com.App.1927, holding approved); Caudle v. Eliasville State Bank, 93 S.W.2d 779 (Tex.Civ.App.—Fort Worth 1936, no writ).

The circumstances suggest that Okemah tacitly agreed to forego its threatened reduction of the work force. Tinkler made no express promise to that effect. “The mere presence of some incident to a contract which might, under certain circumstances, be upheld as a consideration for a promise, does not necessarily make it the consideration for the promise in that contract. To give it that effect, it must have been offered by one party and accepted by the other, as one element of the contract.” Fire Ins. Ass’n v. Wickham, 141 U.S. 564, 579, 11 S.Ct. 84, 88, 35 L.Ed. 860 (1891), quoted in Johnson v. Breckenridge-Stephens Title Co., 257 S.W. 223, 226 (Tex.1924).

The Supreme Court of Texas approved the statement, quoted from Wickham, that “nothing is a consideration that is not regarded as such by both parties. To constitute a valid agreement, there must be a meeting of minds upon every feature and element of such agreement, of which consideration is one.” Missouri, K. & T. Ry. Co. of Texas v. Smith, 98 Tex. 47, 81 S.W. 22, 25 (1904).

Okemah asserts that the trial court erred in failing to find that Barkley-Farmer is estopped to deny that the oral agreement is enforceable. Okemah thus asserts that the doctrine of promissory estoppel is applicable to the facts of this case. The Restatement, Contracts, § 90, says:

“A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”

The Supreme Court of Texas has said:

“. . . where the promisee has failed to bind the promisor to a legally sufficient contract, but where the promisee has acted in reliance upon a promise to his detriment, the promisee is to be allowed to recover no more than reliance damages measured by the detriment sustained ... all that is required to achieve justice is to put the promisee in the position he would have been in had he not acted in reliance upon the promise.” Wheeler v. White, 398 S.W.2d 93 (Tex.1965).

In the case above cited, the court further pointed out that damages based on a loss of anticipated profits could not be recovered. Thus, Okemah is not entitled to recover the price per foot orally agreed upon but would be entitled to recover any loss which it sustained by reason of its reliance on the promise to pay. The money which Okemah lost, if any, by reason of its reliance on the promise, is not shown in the record. The trial court did not err in refusing to enter judgment based on the theory of promissory estoppel.

Okemah contends that it is entitled to prejudgment interest at the rate of 6% from August 15, 1977, to date of judgment. The trial court found that Barkley-Farmer was indebted to Okemah in the amount of $27,656.16, under the written contract. When a definite sum of money is determined to have been due and payable at a date certain prior to judgment, the legal rate of interest should be allowed thereon from such date to the date of judgment. Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex.1978).

Barkley-Farmer was holding and using money due to Okemah without its consent. The award of interest on that money is necessary to avoid unjust enrichment of Barkley-Farmer. The judgment of the trial court will be modified by awarding interest at the rate of 6% per annum on the sum of $27,656.16, due Okemah, from August 15, 1977, to the date of judgment, November 27, 1978.

Finally Okemah presents points of error concerning the court’s failure to find that under quantum meruit Okemah was entitled to recover from Barkley-Farmer the sum of $141,283.71. The trial court has found a valid written contract between the parties and has permitted recovery thereunder. A recovery cannot be sustained in quantum meruit if there be a valid expressed contract. Teague v. Edwards, 159 Tex. 94, 315 S.W.2d 950 (Tex.1958).

Other points of error presented have been examined and found to be without merit and to require no discussion.

The judgment of the trial court will be modified and as modified affirmed.


author: REYNOLDS, Justice.

text:
    In the Matter of the MARRIAGE OF Theodore M. NEIDERT and Helen Neidert.
    No. 9033.
    Court of Civil Appeals of Texas, Amarillo.
    May 21, 1979.

      John M. Harris, Irving, for appellant.
    Briggs, Brown & Berkley, Tom P. Briggs, Dallas, for appellees.
   REYNOLDS, Justice.

The award of attorney’s fees in this contempt proceeding, in which no contempt was found, is unauthorized. Reversed and rendered.

On or about 23 November 1977 a decree of divorce was entered in the 301st District Court in Dallas County dissolving the marriage of Theodore M. Neidert and Helen Neidert. One portion of the decree provided that their residence be sold and the net proceeds be divided equally between them. The court further directed that each party “shall execute all instruments necessary to effect this Decree.”

Some four months later, on 16 May 1978, appellee, Helen Neidert, filed a motion for contempt in the same cause alleging that appellant, Theodore M. Neidert, failed to sign those papers necessary to effectuate a transfer of their previous residence. She also alleged she had incurred substantial attorney’s fees in connection with the motion for contempt and requested that appellant be ordered to pay those fees and any costs of court out of his share of the proceeds from the sale of the residence.

On 15 June 1978 the trial court entered its order finding that although appellant had not executed the papers necessary for the sale of the residence at the time the motion for contempt was filed, he had done so at some time prior to the hearing on the motion, and was, therefore, not in contempt of court. It was ordered that the $300 in attorney’s fees and $34 in court costs incurred by appellee in bringing her motion for contempt be assessed against the appellant and that such amounts be paid out of his share of the net equity received upon the sale of the residence.

Appellant presents two points of error asserting it was improper to award attorney’s fees against him and to modify his property rights by ordering the attorney’s fees be paid out of his share of the net proceeds from the sale of the real property. Appellee insists there was no error by the trial court, arguing that, (1) the assessment of attorney’s fees was well within the jurisdiction of the trial court as punishment for appellant’s failure to sign the transfer papers prior to the filing of the motion for contempt, and (2) a payment of attorney’s fees through a reduction in the net proceeds of the sale is not a modification of property rights.

Attorney’s fees are not recoverable in an action unless so provided by statute or by contract between the parties. New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914, 915 (Tex. 1967). Statutes which authorize a recovery of attorney’s fees are penal in nature and will be strictly construed. Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895 (Tex. 1962). Appellee neither pleaded nor asserts on appeal the existence of a contract or statute which would allow a recovery of attorney’s fees incurred in her contempt proceeding. Our independent research has revealed no statute which would support the award of the trial court. Thus, absent a contractual or statutory basis, it was error to award attorney’s fees.

Appellee argues the trial court’s action was a proper exercise of its power to punish one who fails to comply with a judicial order. Indisputably, a district court possesses all powers necessary for the enforcement of its lawful orders; including the power to punish for contempt. Tex. Rev.Civ.Stat.Ann. art. 1911a (Vernon Supp. 1978-1979). However, punishment for contempt by a district court may only consist of a fine not to exceed $500, confinement in county jail for not more than six months, or both. Art. 1911a § 2(a). Therefore, the district court is without statutory authority to assess attorney’s fees even upon a declaration of contempt.

Accordingly, the judgment of the trial court must be reversed. It becomes unnecessary to consider appellant’s second point of error.

The judgment of the trail court is reversed and judgment is hereby rendered that Helen Neidert take nothing. Tex.R. Civ.P. 434.


author: RALEIGH BROWN, Justice.

text:
    Richard W. ASHTON et al., Appellants, v. Bryan CHAMBERS et al., Appellees.
    No. 5347.
    Court of Civil Appeals of Texas, Eastland.
    May 24, 1979.
    Charles Scarborough, Scarborough, Black, Tarpley & Scarborough, Abilene, for appellants.
    Keith Woodley, Sudderth, Woodley & Dudley, Comanche, for appellees.
   RALEIGH BROWN, Justice.

This case involves the question of whether a school bond election was void because the amount of bonds voted on would, if all were issued, cause the aggregate principal amount of tax indebtedness of the school district to exceed that authorized by § 20.-04, Education Code of the State of Texas.

Richard W. Ashton, Dennis Damron, Wy-man Mclnnis, Abney Mclnnis and William S. Byrd filed this election contest against Bryan Chambers, President, and Adron Beck, Barbara Stewart, Kenneth Boyd, Wayne Graves, H. P. Hampton, and Jerry Biehl, members of the Board of Trustees of the Early Independent School District contesting the results of a school bond election. Contestants contended that the election is void because the amount of the bonds voted on would cause the aggregate principal amount of tax indebtedness of the district after issuance of the bonds to be in excess of ten percent of the assessed valuation of taxable property in the district in violation of § 20.04, Education Code of the State of Texas. The trial court upheld the validity of the election. Contestants appeal. We affirm.

The parties agree that there are no disputed fact issues. On November 11, 1978, the qualified voters of the Early Independent School District voted for the proposed school bonds in the sum of $2.6 million. The certified valuation of property within the school district for tax purposes at the time of calling the election and at the date of election was the sum of $28,763,768. On the date of the election, the school district had a bonded indebtedness of $584,000. Therefore, on adding the new bond issue to the existing bonded indebtedness, the anticipated bonded indebtedness would exceed ten percent of the valuation of taxable property within the school district if all bonds were issued.

The Board of Trustees argues that the election was not void but agrees that bonds could not be issued which would extend the district’s bonded indebtedness above ten percent of the value of the taxable property within the district.

§ 20.04, Education Code of the State of Texas, providing for school district bond and tax elections, states in part:

No bonds shall be issued pursuant to Subsection (b)(1) of this section if the aggregate principal amount of tax bond indebtedness of the district after such issuance would be in excess of 10 percent of the assessed valuation of taxable property in the district according to the then last completed and approved ad valorem tax rolls of the district. (Emphasis added)

We find no cases construing this particular section of § 20.04 since its enactment and effective date, September 1, 1969. However, earlier statutes contained the same or similar language limiting the authority of a school district to issue bonds. These earlier statutes have been construed.

In Powell v. Charco Independent School Dist., 203 S.W. 1178 (Tex.Civ.App.—San Antonio 1918, writ ref’d), it was contended that the property valuation of the school district established that it was not sufficient to sustain an issue of $10,000 in bonds, thus the election was invalid and bonds in no amount could be issued. The court disagreed saying:

We are of opinion that such issue can be legally made. The people were fully informed of the matters concerning the bond issue, and voted that a bond issue of $10,000 should be made, and it cannot be presumed that an issue of $9,000 in bonds would meet with their disapproval. The sanction of a bond issue for a larger amount would necessarily include the issue of a less amount of bonds. In other words, the people authorized the trustees to issue a certain number of bonds of a certain value each, and it would be unreasonable to suppose that such authority would not give authority and discretion to issue a less number if for any reason they deemed such less number should be issued. The trustees could not increase the amount voted, but would be authorized to lessen the amount, if deemed expedient and proper. The maximum amount of the bond issue was voted by the people, and although that issue was excessive at the time, a less amount could be issued, and the others issued whenever the property values had sufficiently increased to justify it. City of Austin v. Valle [Tex.Civ.App.], 71 S.W. 414, writ of error denied; Cohen v. City of Houston [Tex.Civ. App.], 176 S.W. 809. In the Valle Case it was held that:
The “bonds will be valid, although the bonds would have been excessive if all of them had been issued at the time the election was held.”
In the Cohen Case it was stated:
“The question presented by this state of fact, then, is whether the city can lawfully issue the bonds in annual installments running for a period of five years. We think the answer should be in the affirmative, provided that at the time of issuing each installment the city has available a margin of taxing power and property values sufficient to raise, by taxation, the sum of money necessary to pay the interest upon and to create a sinking fund of at least 2 per cent, for the redemption of such installment at maturity.”
In the same case, following other authorities, it was held that the debt was not created until the bonds were sold as obligations against the city or district issuing them. Speaking on this subject, it was said in the Valle Case:
“We are of the opinion that, although the taxable values may not be sufficient at the time the election is held, yet if at the time the bonds actually become debts against the city the taxable values are sufficient to pay the interest and provide the sinking fund, the bonds will be valid.”

We hold the bond election of the Early Independent School District of November 11, 1978, was valid.

The judgment of the trial court is affirmed.


author: WALLACE, Justice.

text:
    BOSTON SEA PARTY OF HOUSTON, INC., Appellant, v. Jerry ARGOVITZ et al., Appellees.
    No. 17430.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 31, 1979.
    Hoover, Cox & Shearer, John Grubb, Houston, for appellant.
    Lackshin & Nathan, Bernus Fischman, Houston, for appellees.
    Before WALLACE, EVANS and WARREN, JJ.
   WALLACE, Justice.

Boston Sea Party of Houston, appellant and plaintiff below, complains of the trial court’s summary judgment for Argovitz, appellee and defendant below. Appellant is lessee and appellee is lessor of a restaurant facility. Defendant Getz, not a party to this appeal, is the owner of a tract of land adjoining the restaurant premises through which runs a sewer line connecting the restaurant facilities with the main sewage lines.

Appellant filed its original petition on May 28, 1978, seeking injunctive relief against appellee and Getz from interfering with appellant’s going upon Getz’s property for purposes of cleaning out clogged sewer lines. On June 14, 1978, the trial court entered a temporary injunction against Getz. On June 22, 1978, appellee filed a motion for summary judgment alleging that no relief was sought against him and that he was seeking none against appellant. Appellant filed nothing in response to the motion and, on August 21, 1978, it was heard and granted. The trial court made an appropriate entry on the docket sheet.

On December 18, 1978, appellant filed his first amended original petition wherein he nonsuited Getz and pled for money damages against Argovitz for breach of lease. Additionally, appellant filed a motion to set aside the summary judgment. On December 20, 1978, appellee filed a motion to enter the summary judgment previously rendered. At a hearing on January 2,1979, all motions were heard. The trial court refused to permit appellant to file his first amended original petition. The court signed the summary judgment and the order nonsuiting Getz.

Appellant’s points of error 1 through 4 raise two issues; (1) the correctness of the trial court’s refusal to permit appellant to file his first amended original petition and (2) the finality of a summary judgment in the absence of an order of severance.

We will first consider the trial court’s refusal to permit appellant to file his first amended original petition. The summary judgment was rendered on August 21, 1978. The only act required of the trial court, after it orally rendered the order, was the ministerial task of signing a written order. Green v. Smart, 333 S.W.2d 880 (Tex.Civ.App.—Dallas 1960, no writ). The consideration of any additional pleadings filed in the interim between the rendition of the order and the act of signing the written order was wholly within the discretion of the trial court. Rule 166-A T.R. C.P.; Green v. Smart, supra; Oaxaca v. Lowman, 297 S.W.2d 729 (Tex.Civ.App.—El Paso 1956, writ ref’d n. r. e.). In ruling on the motion for summary judgment the court was not obligated to consider the appellant’s first amended original petition filed some 119 days subsequent to the date of the hearing. Axcell v. Phillips, 473 S.W.2d 554 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref’d n. r. e.); Oaxaca v. Lowman, supra; McCormick v. Stowe Lumber Company, 356 S.W.2d 450 (Tex.Civ.App.—Austin 1962, writ ref’d n. r. e.). We find no error in the trial court’s refusal to permit filing of appellant’s first amended original petition.

A judgment which disposes of all the issues and all of the parties is a final judgment. As of the date of the hearing on the appellee’s motion for summary judgment, appellant’s only pleading was its original petition wherein it sought no relief against appellee. Appellee asserted no claim against appellant. Appellant subsequently nonsuited defendant Getz and the order of nonsuit was signed and entered on the same day the summary judgment was signed by the court. Thus, all issues as to all parties were disposed of and the summary judgment was a final judgment.

The judgment of the trial court is affirmed.


author: PEDEN, Justice.

text:
    Pat ANDERSON, Appellant, v. Jean (Anderson) BURLESON, Appellee.
    No. 17403.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 31, 1979.
    Sanford W. Likover, Bellaire, for appellant.
    Jean (Anderson) Burleson, pro se.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   PEDEN, Justice.

Pat Anderson attempts to appeal from an order finding him in contempt of court for non-payment of child support but suspending commitment until a later date. Anderson contends the trial court committed fundamental error in entering the order against him because all court proceedings had been automatically stayed under Bankruptcy Rule 11-44. We dismiss the appeal.

In the 1974 divorce decree, Anderson was ordered to pay $200 each month for child support. A show cause order was issued in 1978 stating that he was $600 in arrears in his payments and ordering him to appear in court on December 14, 1978. He failed to appear, and the trial court’s order holding him in contempt suspended his commitment until December 27 pending his payment of $600. It is from this contempt order that Anderson seeks to appeal.

We do not reach Anderson’s sole point of error. We are without jurisdiction to consider this appeal because the trial court’s order is not an appealable one. There is no provision in Texas statutes for an appeal from an adjudication and commitment for contempt. Relief must be sought by application for a writ of habeas corpus. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956).

There is another reason why the trial court’s order in our case was not ap-pealable. When a contemner’s commitment order is suspended, as here, on condition of compliance, the court must afford him a subsequent hearing to determine whether a breach of the condition has occurred and must issue an unconditional order of commitment. Ex parte Sauser, 554 S.W.2d 239 (Tex.Civ.App.1977, no writ); Ex parte Hart, 520 S.W.2d 952 (Tex.Civ.App.1975, no writ). Appeals may be taken from final judgments, Art. 2249, Vernon’s Texas Civil Statutes, and the general Texas rule is that appeals lie only from such interlocutory orders as are specially made appealable by rules or statutes. Henderson v. Shell Oil Co., 143 Tex. 142, 182 S.W.2d 994 (1944); City of Arlington v. Texas Electric Service Co., 540 S.W.2d 580 (Tex.Civ.App.1976, writ ref’d n. r. e.). There is no provision in Texas law making appealable an interlocutory commitment order in a contempt proceeding.

The appeal is dismissed.


author: WARD, Justice.

text:
    Jean GONZALES, Appellant, v. Jackie Monroe WHITSITT et al., Appellees.
    No. 6818.
    Court of Civil Appeals of Texas, El Paso.
    June 6, 1979.

      Burnett & Ahders Associated, Warren Burnett, W. Ruff Ahders, Richard J. Clark-son, Norma Venso, Odessa, for appellant.
    Rassman, Gunter & Boldrick, James P. Boldrick, Leslie G. McLaughlin, Midland, Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Stephen L. Brannon, Odessa, for appellees.
   OPINION

WARD, Justice.

The Plaintiff, Jean Gonzales, appeals from a take nothing judgment entered in her suit for injuries sustained when her stalled automobile was rear-ended. The jury failed to find negligence on the part of either of the drivers involved, and the Plaintiff appeals on two points — that the Defendant driver failed to keep a proper lookout as a matter of law as well as in fact. We affirm.

The testimony concerning the accident is somewhat meager. The accident occurred on October 9, 1975 at about 11:00 o’clock a. m. on a clear day. All parties were driving north on Garfield Street in the City of Midland. The street is two-way with two lanes of traffic in each direction. In the intersection where Garfield meets Golf Course Road, there were four inches of standing water. The Plaintiff was on her way to make a termite inspection for her employer, Orkin Exterminating Company. Her supervisor was following her in a separate car. After going through the intersection at Golf Course Road, the Plaintiff’s car stalled and came to a stop somewhere north and past the intersection. The supervisor stopped his car about fifteeii feet or a car length behind the Plaintiff’s car. The supervisor testified that as soon as he stopped and while he still had his foot on the brake, the Defendant driver ran into the back of the supervisor’s car and knocked it into the rear of the Plaintiff’s vehicle. He stated that before he stopped he put his flashers on; that the accident caused about $800.00 damages to his vehicle, but less than $100.00 to the car that the Plaintiff was driving.

The Defendant driver, Jackie Monroe Whitsitt, was employed as a plumber by the Defendant C. A. Gray Plumbing, Heating & Air Conditioning, Inc., and testified that he was driving a company truck which was in good mechanical order. He stated that at each intersection for two or three blocks before Golf Course Road water was standing in each intersection, and he didn’t think he was going very fast and was not paying any particular attention to the vehicles in front of him; that while going into and through the intersection at Golf Course Road he was watching the traffic control light which was green and the water which was in the street. He looked up and the vehicles were in front of him. He applied his brakes and they didn’t hold as they were wet; one side grabbed more than the other and his truck turned to the right, and he struck the Orkin supervisor’s car in the rear with his left fender. The supervisor’s car in turn struck the Plaintiff’s vehicle.

The Defendant Whitsitt’s helper who was riding with him stated they were driving about 20 miles an hour through the water, but he couldn’t tell for sure; he saw the stopped vehicle and yelled. He thought they had plenty of time to stop, but the brakes grabbed and threw their truck to the right and they struck the stopped vehicle. He denied that the flashers on the supervisor’s car were turned on at the time of the accident.

The Plaintiff testified that when her car stalled, she made a hand signal to her supervisor and came to a stop, and had been stopped for several minutes before the accident.

In response to the special issues, the jury absolved the Defendant Whitsitt of negligence in failing to keep a proper lookout, in traveling at excessive speed, in failing to apply his brakes, and in failing to turn to the right. Concerning the Plaintiff, the jury assessed the amount of damages for her personal injuries and loss of earnings at $10,000.00. The Plaintiff filed Motion for Judgment Non Obstante Veredicto, and the Motion was overruled. That action of the trial Court is the subject of the Plaintiff’s first point, the complaint being that the evidence established as a matter of law that the Defendant Whitsitt failed to keep a proper lookout.

Under the point, the Plaintiff’s main argument is that Whitsitt as a party Defendant testified both Defendants into judgment by his admissions concerning lookout. The Plaintiff refers to Whitsitt’s statements that though the water in the street was one factor causing the accident, he was nearly all to blame; that he did not remember seeing the car before he hit it; and if he had seen the car, he could have gone around it. Testimony continued:

Q Well, the truth of the matter is, you didn’t see them in time to have the brakes have any effect, as far as the accident was concerned, isn’t that right?
A I feel like I could have stopped, or just dad-gummed near stopped, if they hadn’t have been wet. But, still, the bulk of it was my fault, because I didn’t see them.
Q If you had seen them in time, you would have been able to stop, don’t you think?
A I think I could have.

At this point we note that, regardless of whether or not any testimony of Whitsitt be given conclusive effect against him as a party, the Defendant C. A. Gray Plumbing, Heating & Air Conditioning, Inc. is not so bound. There is no showing, that the statements were adopted in any way by that corporate Defendant. Pacific Finance Corporation v. Rucker, 392 S.W.2d 554 (Tex. Civ.App.—Houston 1965, no writ); see Big Mack Trucking Company, Inc. v. Dickerson, 497 S.W.2d 283 (Tex.1973).

As to the Defendant Whitsitt, we note that before the testimony or declaration of a party will be conclusive effect, it must appear among other things that the statement was deliberate, clear and unequivocal. Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956). If the statement merely contradicts some or a portion of a party’s testimony conclusive effect cannot be given thereto, but a fact issue is presented for the determination of the jury as in the case of an ordinary witness. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.—San Antonio 1951, writ ref’d). While Whitsitt stated that if he had seen the stopped cars he could have stopped in time, there is the other testimony by that Defendant that he felt like he could have stopped or almost stopped if his brakes had not been wet; that he was watching the light and the water when he entered the intersection; and he applied his brakes but they never slowed him down. That portion of Whitsitt’s testimony which the Plaintiff claims is a binding admission on lookout is not so clear and unequivocal that it can be given conclusive effect.

As to the Plaintiff’s general argument under the first point that the evidence as a whole established as a matter of law the Defendant Whitsitt failed to keep a proper lookout, we disagree as we feel a fact issue was presented for the jury’s determination on the question. Since the Plaintiff came to a stop some distance beyond the intersection, the jury was entitled to believe that Whitsitt’s attention was naturally diverted by the water in the intersection, and that when he did see the stopped vehicles he could have stopped in time but for the unexpected failure of his brakes. Here the lead vehicle stopped somewhere north of the intersection under circumstances that the Defendant driver could not be charged as a matter of law with having foreseen. The fact situation is distinguishable from the rule applicable where a driver is required to stop and fails to do so. It does not compel a finding of negligence against the rear driver. The case is similar to Moreno v. Gates, 449 S.W.2d 366 (Tex.Civ.App.—San Antonio 1969, writ ref’d n. r. e.). See also Rampy v. Allstate Insurance Company, 492 S.W.2d 85 (Tex.Civ.App.— Austin 1973, writ ref’d n. r. e.); Gaitan v. Reyes Salvatierra, 485 S.W.2d 602 (Tex.Civ.App.—San Antonio 1972, no writ); Salazar v. Hill, 551 S.W.2d 518 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). Having considered the evidence in the light most favorable in support of the jury finding, and having considered only the evidence and inferences which support the finding and rejecting the evidence and inferences contrary to the finding, we overrule the Plaintiff’s first point.

Plaintiff’s second point is that the primary finding on failure to keep a lookout was against the great weight and preponderance of the evidence, and was manifestly wrong and unjust. We have considered the whole record, and we conclude that the jury finding attacked by the Plaintiff merely indicates that the Plaintiff has failed to carry her burden of proving the alleged act of negligence. Considering all of the evidence, we hold that the finding complained of is not so against the great weight and preponderance of the evidence as to be manifestly wrong. The second point is overruled.

The judgment of the trial Court is affirmed.


author: OSBORN, Justice.

text:
    Patricia WETTSTEIN, Appellant, v. Gene L. LOVE, Appellee.
    No. 6796.
    Court of Civil Appeals of Texas, El Paso.
    June 6, 1979.
    Rehearing Denied July 5, 1979.

      Rassman, Gunter & Boldrick, P. C., James P. Boldrick, Leslie G. McLaughlin, Midland, for appellant.
    Lynch, Chappell, Allday & Aldridge, James M. Alsup, Randall Lundy, Tom C. McCall, J. Steve Stewart, Midland, for ap-pellee.
   OPINION

OSBORN, Justice.

This case involves claims for damages arising out of a ten-year lease of premises used for a drive-in restaurant. Based upon a jury verdict, the trial Court awarded damages to the Lessee and the Lessor appeals. We affirm in part, and reverse and render in part.

In June, 1969, Lessee leased 5,610 sq. ft. of land out of Lot 14, Block 17, Dellwood Addition in Midland, Texas, for a period of ten years and agreed to pay $750.00 per month as rent. In addition, Lessee was required to pay all increases in ad valorem taxes assessed on the leased premises over arid above the amount assessed for 1969. Lessor was required to submit a statement for such increase in taxes to the Lessee. The lease also contained a clause for a cost-of-living adjustment every two years based upon the Consumer Price Index as determined by the United States Department of Labor. This clause provided for an increase in July every two years based upon the Index for the preceding month as compared to the Index in June, 1969.

In late 1971, it was determined that additional taxes were due and Lessee began paying an additional $100.00 per month to cover accrued back taxes. In January, 1976, the Lessee was advised that he owed $325.45 for back taxes after having been credited for his prior payments of $3,400.00. He was also advised at that time that his monthly rent was being increased to $950.61 beginning February 1, 1976 to cover the increase in the Consumer Price Index since 1969. In March, 1976, he was actually billed $9,463.73 as the amount past due at that time by virtue of the escalation clause. The monthly rent was subsequently increased to $1,359.20 as of November 1,1977. The Lessee paid the increased amounts for rent and taxes as required while occupying the premises, but did not pay the amounts claimed to be due and owing for prior periods. In January, 1978, the Lessee abandoned the premises and moved his business to a new location.

The Lessor filed this suit claiming $325.45 due for taxes, $9,463.73 for cost-of-living increase and $15,000.00 for breach of contract, plus $2,500.00 as attorney fees. The Lessee answered and pled limitations on all claims which occurred more than four years before this suit. He also pled waiver, and" estoppel on all past due and unpaid claims. He also asserted that Lessor breached the lease by permitting other sandwich shops in the shopping center in violation of his lease, and by leasing to another tenant an area used by Lessee for parking spaces in front of his business. He claimed $55,000.00 in actual damages and $35,000.00 in exemplary damages.

With regard to the Lessee’s contentions, the lease provides that Lessor shall not permit the use of any other part of Lot 14, Block 17, Dellwood Addition, for owning or operating a retail sandwich shop. Lessee testified that both the Pizza Inn and a 7-11 Store located on the described premises have sold sandwiches as a part of their business operations since 1974. He estimated this cost him 1% of his business or $2,500.00 per year in gross sales since 1974. He estimated his net profit at 10% of the gross sales and this would amount to $250.00 per year or $1,000.00 for the four years in question.

Lessee also testified that when Lessor leased an adjoining tract to another restaurant, their patrons were to be entitled to use approximately ten parking spaces in front of his drive-in, and the loss of this space would cost him 50% of his net profit of $25,000.00 per year, but he acknowledged that he left the premises before the other restaurant ever opened and its effect on his business was at best very speculative.

Apparently at the request of the Appellant, and certainly without objection by him, the case was submitted to the jury upon a general charge. Special Issue No. 1 and the answers are as follows:

What sum of money, if any, exclusive of attorney’s fees, do you find from a preponderance of the evidence that either party to this lawsuit is obligated to pay to the other party on account of their transactions with each other?
(a) Defendant, Gene L. Love, owes plaintiff, Patricia Wettstein, the sum of $_0
or
(b) Plaintiff, Patricia Wettstein, owes defendant, Gene L. Love, the sum of $ 10.000 .

In answer to Issue No. 2 the jury found “0” for Lessor’s attorney’s fees. They also found on defensive issues submitted by Lessee that (3) Lessor failed to make a demand for an increase based upon the Consumer Price Index from June, 1971 to March, 1976, (4) Lessee relied upon such failure by not increasing the prices of the products he sold, (5) Lessor knew or should have known that Lessee would not increase the prices of his products in reliance upon the fact that no demand was made for an increased rental during the period from June, 1971 to March, 1976, (6) and that such reliance was to Lessee’s detriment or injury. They also found (7) Lessor waived the right to claim an increase from June, 1971 to March, 1976. Further, they found (8) Lessor allowed other businesses on the described premises to sell sandwiches, (9) proximately causing damage to Lessee; (10) the ten parking spaces in front of Lessee’s business were included within the area covered by his lease, (11) the lease to a competing business took said parking spaces, (12) which was a proximate cause of Lessee’s damages, (13) and forced Lessee to abandon the premises and (14) resulted in his loss of business profits of $7,500.00. The Lessee made a motion a motion to remit $7,500.00, and judgment was entered in his favor for $10,-000.00 plus interest and costs.

The Appellant initially presents thirty-five points of error, all argued together although they are not all related. See Texas Appellate Practice Manual sec. 1.62 (1974). The first ten points assert that the trial Court erred in overruling Appellant’s Motion for Judgment Non Obstante Veredicto. With regard to the claim that the Lessor was entitled to recover the sum sued for as a matter of law, we believe a fact issue existed as to the defense raised that the Lessor had breached the lease which gave Lessee an exclusive right to sell sandwiches in the shopping center. Such clauses are valid and binding and run with the land. Karam v. H. E. Butt Grocery Company, 527 S.W.2d 481 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.); Neiman-Marcus Company v. Hexter, 412 S.W.2d 915 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.); Validity, construction, and effect of lessor’s covenant against use of his other property in competition with the lessee-covenantee, 97 A.L.R.2d 4 (1964). The obvious reason for the lease provision prohibiting any other retail sandwich shop was to give Lessee an exclusive right to such sales in the area where his drive-in was located. Although the Pizza Inn and the 7 — 11 Store were not engaged exclusively in selling sandwiches, permitting such business would certainly affect the Lessee and was a violation of the spirit and intent of the lease clause which had as its purpose the giving of an exclusive right to sell sandwiches on the premises owned by Lessor. Lessor did not deny the sales occurred, and the evidence is undisputed that such sales had been made since 1974. Thus, Lessee established a breach of the lease agreement by the Lessor, and a valid defense to the claim of the Lessor that she should recover as a matter of law. 49 Am.Jur.2d Landlord and Tenant, sec. 179; 51C C.J.S. Landlord & Tenant § 238.

We also conclude that when the Lessor accepted rent payments from July, 1971 to March, 1976 and made no claim for additional rent under the cost-of-living increase as provided for in the lease, there existed a fact issue as to whether the Lessor had waived the right to enforce that .clause and seek additional rent. “A waiver is basically a unilateral concept requiring action only by the party relinquishing a right. The only prerequisites for a valid waiver are (1) an intention to waive, (2) some act amounting to a surrender of a right, (3) the right relinquished must have been in existence at the time of the alleged waiver and (4) the party waiving the right must have knowledge of the existence of such right.” Waiver and Estoppel, 20 Baylor L.Rev. 325, 332 (1968). Up until March, 1976, the right to collect such rent was in existence and the Lessor was charged with knowledge of the rights provided for in the lease, and during that period of time accepted the Lessee’s checks for a lesser amount, endorsed them, accepted payment and made no complaint. Since the lease gave the Lessee an option to renew, the jury might have concluded that the Lessor had decided that it was preferable to leave the base rental as originally written and hope that the lease would be extended for an additional five years rather than seeking additional rent and losing a tenant, as actually occurred later on. At least a fact issue was raised, and Lessor was not entitled to recover on her claim as a matter of law. Points of Error One through Ten are overruled.

The next 24 points attack the Court’s submission of issues 3 through 14. The Court remitted the sum found in Issue No. 14, and any error in submitting that issue has become harmless error. The Appellant requested that the case be submitted on a general charge, objected to all other issues but the first two and has no points of error complaining about the answer to issues 1 and 2, other than Point Thirty-five which will be noted later. Thus, she is bound by the general charge and the jury finding against her as to liability in Issue No. 1. The other issues become immaterial because even if the answers to issues 3 through 13 are set aside, Appellant is still faced with an adverse finding on Issue No. 1 as to the liability between these parties. Thus, regardless of our action on Points Eleven through Thirty-four, she still loses on the jury verdict as a result of the jury’s answer to Special Issue No. 1. Accordingly, Points of Error Eleven through Thirty-four are overruled.

Point of Error Thirty-five asserts there is no evidence to support the finding of $10,000.00 in answer to Special Issue No. 1, and that “the evidence supports a finding of no more than $1,000.00 in damages.” Damages for loss of the parking area cannot be sustained because the area Lessee claims to have lost was not in his lease and he so admitted in his own testimony. His testimony as to damages from the competing sandwich shops from 1974 to 1978 amounts to no more than $1,000.00 by his own testimony. We sustain Point of Error Thirty-five, and hold that the only proof is of damages of not more than $1,000.00.

The last Point of Error complains of the trial Court’s failure to hear evidence concerning jury misconduct in its deliberations on the issue of damages. We believe our sustaining Appellant’s Point of Error Thirty-five makes this issue moot. But in any event, there was no error because the Motion for New Trial alleging such misconduct did not contain supporting affidavits nor an explanation as to why such affidavits were not attached, and in the absence thereof it is within the sound discretion of the trial judge as to whether or not to hear testimony of jury misconduct. Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644 (1942); 4 McDonald, Texas Civil Practice sec. 18.13. In this case, we find no abuse of discretion. Point of Error Thirty-six is overruled.

The judgment of the trial Court is affirmed to the extent that it provides that Gene Love shall have and recover of and from Patricia Wettstein the sum of $1,000.00 plus interest thereon at the rate of 9% per annum from the date of judgment; and to the extent that it provides for sums in excess of $1,000.00 and interest, the judgment is reversed and rendered.

      . As to the issues on estoppel, there was no issue on false representation or concealment of material facts. See Echols v. Bloom, 485 S.W.2d 798 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ refd n. r. e.); Traylor v. Gray, 547 S.W.2d 644 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.).