author: McGEE, Justice.

text:
    John R. WEATHERLY, Trustee, Petitioner, v. Jacqueline BYRD, guardian of the person and Estate of Aileen Mitchell, Respondent.
    No. B-6934.
    Supreme Court of Texas.
    May 10, 1978.
    Rehearing Denied May 31, 1978.
    Kelley, Ryan, Merrill & Young, C. 0. Ryan, Houston, for petitioner.
    Leeper & Priddy, Laurance L. Priddy, Law, Snakard, Brown & Gambill, R. F. Sna-kard, Fort Worth, for respondent.
   McGEE, Justice.

This appeal arises from an action by the guardian of an incompetent settlor to revoke a revocable inter vivos trust. Two issues are presented by this appeal. First, it must be determined if a guardian has the authority to exercise an incompetent set-tlor-ward’s right of revocation without seeking court authorization. Second, if court authorization is necessary, it must be determined whether the probate court or the district court has jurisdiction to enter such an order. This cause was filed in the Probate Court of Tarrant County which subsequently entered an order authorizing the guardian to revoke the trust. The court of civil appeals affirmed. 552 S.W.2d 573. We reverse the judgments of the courts below and the cause is dismissed.

On September 24, 1971, Aileen Mitchell executed a revocable inter vivos trust agreement naming herself as beneficiary. The purpose of the trust was to provide for the settlor during her lifetime and to dispose of the trust estate after her death. John Weatherly, her lawyer for some years, prepared the trust agreement and was also named as the trustee. The trust stated that Miss Mitchell had the right to alter, amend, revoke, or terminate the trust upon giving ten days’ written notice to the trustee. Miss Mitchell directed that the residue be divided between the named beneficiaries in the event the trust was not revoked prior to her death.

In late 1972, Miss Mitchell became unable to care for herself and was placed in a convalescent home by Weatherly. Jacqueline Byrd, a great niece, discovered that Miss Mitchell was in the convalescent home and brought her back to Fort Worth. In March, 1973, Miss Mitchell was declared an incompetent and Mrs. Byrd was appointed guardian. Miss Mitchell resided with Mrs. Byrd until May of 1975, when she was placed in a convalescent home in Fort Worth where she remained until her death in April, 1977.

In October, 1973, Mrs. Byrd filed a petition in the Probate Court of Tarrant County seeking an order authorizing her to revoke the trust. She also sought to have the trustee render an accounting of the trust property and to deliver the property to her. Weatherly filed a plea of privilege and a plea to the jurisdiction. In the former pleading he sought to have the cause transferred to Harris County, where he resided. The probate court overruled the plea of privilege. On appeal, the court of civil appeals held that venue for the portion of the action concerning revocation of the trust was proper in the Probate Court of Tarrant County. On its own motion, however, it held that the probate court did not have jurisdiction over that portion of the action concerning the accounting and ordered that portion of the suit be dismissed. Weatherly v. Byrd, 519 S.W.2d 504 (Tex.Civ.App.-Fort Worth 1975, no writ).

On remand, a hearing was held in probate court to consider revocation of the inter vivos trust. The court overruled Weatherly’s plea to the jurisdiction that asserted that the Texas Trust Act placed jurisdiction of such a proceeding in the district court. The court then entered an order authorizing and directing Mrs. Byrd to terminate the trust.

The court of civil appeals affirmed the judgment of the probate court. In doing so, it first held that the guardian had the authority to revoke the trust without the authorization of the probate court. The court reasoned that the right to revoke the revocable trust “vested” in the guardian upon her appointment and qualification to act as such. The court also held that, in any event, the probate court had exclusive jurisdiction to enter the order from which the trustee had appealed.

We disagree with the court of civil appeals’ first holding. It is the prevailing view that a guardian may not exercise the purely personal elective rights of his ward. See Howard v. Imes, 265 Ala. 298, 90 So.2d 818 (1956); Chase Nat'l Bank v. Ginnel, 50 N.Y.S.2d 345 (Sup.Ct.1944); Hendricks v. Grant County Bank, 379 P.2d 693 (Okl.1963); Delevan v. Thom, 244 S.W.2d 551 (Tex.Civ.App.-Beaumont 1951, no writ); 39 Am.Jur.2d Guardian and Ward § 102 (1968). Although Delevan v. Thom, supra, dealt with a widow’s right of election under a will, its reasoning is persuasive in this instance. The court there stated:

“We have examined the guardianship statutes, and it is our conclusion that the right of election . . . did not constitute such a property right as formed a part of the estate committed to the care of the guardian of her estate, or such a right as belonged to the guardian of her person. We hold, as a consequence, that the guardian could not exercise the right of election.” Delevan v. Thom, 244 S.W.2d at 555-56.

The right to revoke a trust is a personal right involving the exercise of personal discretion and in that respect it is similar to the right of election under a will. See G. Bogert, The Law of Trusts and Trustees § 1000 (2d ed. 1962). Accordingly, we hold that the right to revoke a revocable trust, absent an agreement to the contrary, is a purely personal right of the settlor and does not vest in the guardian.

This is not to say that a revocable inter vivos trust becomes irrevocable after the settlor has been declared incompetent. Rather, it means that the guardian must apply to a court of competent jurisdiction for authorization to revoke the trust. The court of civil appeals held that the probate court was the proper court in which to seek such an authorization. We disagree.

Mrs. Byrd argues that article 7425c, § 8 provides a strong inference of the probate court’s jurisdiction to enter an order authorizing the guardian to revoke the trust. She urges that if the right of revocation held by the ward is a power that the probate court may authorize the guardian to release, then it may be inferred from section 8 that the probate court may also authorize the guardian to exercise the ward’s right of revocation. We do not agree with this interpretation of the provisions of section 8. Even if the definition of a power could be construed to include the power to revoke an inter vivos trust, the provisions of section 8 expressly provide only for the release of such a power, not for the exercise thereof. Furthermore, the primary purpose of article 7425c is tax related in that it is to prevent assets subject to a power of appointment from being included in the decedent’s estate for federal estate tax purposes, a situation not applicable in this case.

We conclude that the provisions of the Texas Trust Act, Tex.Rev.Civ.Stat.Ann. art. 7425b-24 A. (1960), provide that the district court shall have jurisdiction over this action. That statute reads:

“A. The district court shall have original jurisdiction to construe the provisions of any trust instrument; to determine the law applicable thereto ; the powers, responsibilities, duties, and liability of trustee; the existence or nonexistence of facts affecting the administration of the trust estate; to require accounting by trustee; and to surcharge the trustee.” [Emphasis added].

The comprehensive provisions of this statute indicate that the Legislature intended for the district court to have jurisdiction over actions pertaining to express trusts, particularly where legal and factual determinations relative to the construction of the trust are involved. (See emphasized language). Sound policy reasons support our conclusion. First, judicial efficiency is maximized by having various actions pertaining to a trust resolved by the same court. Second, the district court would have jurisdiction over all of the parties involved in the action under article 7425b-24 C. Finally, the district court is a court of general jurisdiction and has broad powers with which to fashion appropriate relief without having to resort to a costly and burdensome court-supervised guardianship. Therefore, we hold that the district court has exclusive original jurisdiction over a proceeding brought by a guardian to revoke a revocable inter vivos trust of an incompetent settlor.

It follows that the probate court was without authority to enter the order authorizing and directing that the trust be revoked. Accordingly, we reverse the judgments of the courts below and render judgment dismissing the cause.

      . Tex.Rev.Civ.Stat.Ann. art. 7425b-24 A. (1960).

      . Tex.Rev.Civ.Stat.Ann. art. 7425c, § 8 (1960) provides:
      “A power held by a person under a disability and for whose estate a guardian has been or may be appointed, may be released, in the manner hereinabove provided, by the guardian of such person’s estate, upon order of the County Court of the county in the State of Texas in which such guardian shall have been appointed or in which the guardianship proceeding shall be pending.”
      Article 7425c, § 1(a) defines “power” to mean:
      “[A]ny power to appoint or designate to whom property shall go, any power to invade or consume property, any power to alter, amend or revoke any instrument under which an estate or trust is held or created or to terminate any right or interest thereunder
      Article 7425c, § 1(e) defines “release" to mean a:
      “renunciation, relinquishment, surrender, refusal to accept, extinguishment, and any other form of release.”

      . For example, a legal determination is necessary to ascertain what legal standard is to be used as a guide in revoking a trust such as the one presently before us. The probate .court used the “best interests of the ward” test. The court of civil appeals agreed with this test without citation of any authority. 552 S.W.2d at 575. In other jurisdictions, the test is that of the “maintenance and support of the ward.” See In re Cuen’s Estate, 142 Cal.App.2d 258, 298 P.2d 545 (1956); First Nat’l Bank v. First Federal Savings & Loan Ass’n, 196 So.2d 211 (Fla.App.1967); Rickel v. Peck, 211 Minn. 576, 2 N.W.2d 140 (1942); In re McCormack’s Estate, 50 N.Y.S.2d 274 (Sup.Ct.1944); Annot. 138 A.L.R. 1375 (1942). Admittedly, the cited cases dealt with Totten trusts. The standard was carried over, however, to a case involving a revocable trust in Chase Nat’l Bank v. Ginnel, 50 N.Y.S.2d 345 (Sup.Ct.1944). Furthermore, once a legal standard has been determined, the court must make a factual determination of whether the circumstances of the particular case warrant revocation under that standard. We believe that these are examples of legal and factual determinations that the Legislature intended to be made by the district court and so provided for by the enactment of article 7425b-24 A. Because of our holding that the probate court lacked jurisdiction to consider the action, it is not necessary for us to pass on the question of what is the proper legal standard to be used by a court in authorizing the revocation of a trust similar to the one before us.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Frank L. JEWELL, Jr., et ux., Petitioners, v. MOBILE COUNTY MUTUAL INSURANCE COMPANY, Respondent.
    No. B-7142.
    Supreme Court of Texas.
    May 10, 1978.
    Rehearing Denied June 21, 1978.
    Shafer, Gilliland, Davis, Bunton & McCol-lum, James M. O’Leary, Odessa, for petitioners.
    A. R. Archer, Jr., Monahans, Max E. Ramsey, Odessa, for respondent.
   PER CURIAM.

The application for writ of error is refused with the notation, “no reversible error.”

The court of civil appeals was correct, under the law as it now stands, in holding that county mutual insurance companies are exempt from the provisions of Article 21.21 of the Texas Insurance Code. However, we call the attention of the Legislature to the fact that its failure to “specifically” subject county mutuals to Article 21.21, as required by Article 17.22 , deprives persons who deal with county mutu-als the protection against unfair and deceptive insurance acts or practices afforded to persons who deal with other types of insurance companies.

      . Art. 17.22 Exemption from Insurance Laws
      County mutual insurance companies shall be exempt from the operation of all insurance laws of this State, except as in this Chapter specifically provided. In addition to such Articles as may be made to apply by other Articles of this Chapter, county mutual insurance companies shall not be exempt from and shall be subject to all the provisions of Article 2.04 and of Article 2.05 and of Article 2.08 and of Article 2.10 and of Article 5.12 and of Article 5.37 and of Article 5.38 and of Article 5.39 and of Article 5.40 and of Article 5.49 of this Code, and the provisions of Article 7064 of the Revised Civil Statutes of Texas.


author: DENTON, Justice.

text:
    E. R. REECE, Petitioner, v. FIRST STATE BANK OF DENTON, Texas, Respondent.
    No. B-7173.
    Supreme Court of Texas.
    May 17, 1978.
    Royce Coleman, Denton, for petitioner.
    Kelsey, Wood & Gregory, D. Michael Gregory and Richard H. Kelsey, Denton, for respondent.
   DENTON, Justice.

This is a suit brought by First State Bank of Denton, Texas, against E. R. Reece on a continuing guaranty contract. The question presented is whether Reece is liable on his continuing guaranty for corporate indebtedness when a subsequent promissory note was forged. After a jury trial, the court withdrew the case from the jury and rendered judgment against Reece and in favor of the bank for the remaining indebtedness on a delinquent corporate note plus attorney’s fees. The court of civil appeals affirmed. 555 S.W.2d 929. We affirm the judgment of the court of civil appeals.

E. R. Reece was a twenty-five per cent stockholder and vice-president of Denton County Tractor Company. To secure a line of credit from the plaintiff bank for the corporation, Reece executed a continuing guaranty for corporate indebtedness up to $25,000. Pursuant to this agreement, a $25,000 loan was made to the tractor company which was subsequently repaid. A second loan was later negotiated by Mac McGee, who was corporate secretary of the tractor company and apparently managed the corporation’s day to day affairs. McGee was not authorized to contract for loans for the corporation by the articles of incorporation or board resolution. Only La-vell Smith, the president; E. R. Reece, the vice-president; and Joe Reece, the treasurer, were empowered by a specific board of directors resolution to negotiate and procure loans from the plaintiff bank.

Because of McGee’s lack of authority to contract for the loan, the bank refused to make the loan unless E. R. Reece signed the note as an officer of the corporation. McGee brought back a note purportedly signed by Reece, but the bank does not dispute Reece’s testimony that the signature was forged. The bank was unaware of the forgery and did not contact Reece at any time to verify the signature. Based upon the note with the forged signature of Reece, and the guaranty contract undisput-edly signed by Reece, the bank supplied $8,680.32 to an automobile dealer for the tractor company’s purchase of two automobiles. Title to the vehicles was taken in the name of the tractor company and several payments were made on the note by the corporation. When the note became delinquent, the bank foreclosed on the two automobiles and sold them, crediting the proceeds to the note. Since the corporation had become insolvent, the bank brought this suit against E. R. Reece on his guaranty contract.

Reece’s continuing guaranty contract provided:

In Consideration of the First State Bank of Denton, Texas at my request, giving or extending terms of credit to Denton County Tractor Co. of Denton, Texas, hereinafter called “debtor,” I hereby give this continuing guaranty to the First State Bank, Denton, Texas, hereinafter called “Bank,” its transferees or assigns, for the payment in full, together with all interest, attorney fees, other fees, and charges of whatsoever nature and kind, of any indebtedness, direct or contingent whether secured and unsecured, of said debtor to said Bank up to the amount of Twenty five thousand and no/100 Dollars ($25,000.00), whether due or to become due, and whether now existing or hereafter arising for payment of the said indebtedness precisely as if the same had been contracted and was due or owing by me in person, hereby agreeing to and binding myself, my heirs and assigns, by all terms and conditions contained in any note or notes signed or to be signed by said debtor, making myself a party thereto. .

[Emphasis added]. Despite the fact that Reece’s signature on the promissory note was forged, the courts below held that Reece as guarantor was not discharged from liability. They relied upon Universal Metals & Machinery, Inc. v. Bohart, 539 S.W.2d 874 (Tex.1976), to reach this conclusion.

In Bohart, the guarantors of a specific corporate promissory note were held liable even though the maker’s signature was forged. Since it was an absolute and unconditional guaranty of payment, this Court held that the guarantor was not freed from liability because of the forged signature of the maker. The reasoning behind this is that a guarantor of payment is akin to a co-maker in that both are primary obligors, and the holder of the note can enforce it against either party. See Tex.Bus. & Comm.Code Ann. § 3.416(a) (Vernon 1968); Hopkins v. First National Bank At Brownsville, 551 S.W.2d 343 (Tex.1977); Universal Metals & Machinery, Inc. v. Bohart, supra. Reece contends, however, that Bohart is distinguishable on its facts because it involved the guaranty of a specific note which was forged, rather than the continuing guaranty of notes of a certain debtor.

We agree that a guarantor may require that the terms of his guaranty be strictly followed and that he is not bound by a new or different contract. The rule of strictissimi juris applies so that the guaranty agreement is strictly construed and may not be extended beyond its precise terms by construction or implication. McKnight v. Virginia Mirror Co., 463 S.W.2d 428 (Tex.1971); Jarecki Mfg. Co. v. Hinds, 295 S.W. 274 (Tex.Civ.App.—Eastland 1927), writ dism’d, 6 S.W.2d 343 (Tex.Com.App.1928, judgmt adopted).

In this case, Reece agreed to guarantee “any indebtedness” of Denton County Tractor Company. Thus, by virtue of his continuing guaranty agreement, Reece became liable as a primary obligor for any indebtedness to the bank of the tractor company. Although we disagree with the reasoning of the court of civil appeals that Bohart requires that a continuing guaranty makes the guarantor liable on any future note which is forged, we agree with the result in this case. That is, if a note purportedly executed by the tractor company was in fact forged, Reece would not be liable as a guarantor unless: (1) it was shown that, as in Bohart, he expressly guaranteed that specific note; or (2) that the note, even though forged, was a corporate “indebtedness.” The forged note could be shown to be a corporate indebtedness by proving that the corporation adopted or ratified the act of executing the note in its name. We hold that although Reece did not guarantee this specific forged note, he is liable as a guarantor of it because it was conclusively shown that the corporation ratified the execution of the note, making it an indebtedness of the tractor company. As stated above, it was shown that title to the vehicles was taken in the corporate name and that payments were made on the note from the corporation’s bank account. The corporation was undoubtedly the knowing beneficiary of the loan proceeds. Therefore, the note was a corporate indebtedness and Reece is liable as a guarantor.

The judgment of the court of civil appeals' is affirmed.


text:
    David ALBERT, Petitioner, v. CITY OF ADDISON, Respondent.
    No. B-7464.
    Supreme Court of Texas.
    May 17, 1978.
    Rehearing Denied June 7, 1978.
    Goodstein & Starr, Wade Starr, Dallas, for petitioner.
    Saner, Jack, Sallinger & Nichols, H. Louis Nichols, Robert L. McCallum, Dallas, for respondent.
   PER CURIAM.

This is a suit brought by David Albert against the City of Addison seeking a mandatory order compelling the issuance to him of a special use permit for the sale of alcoholic beverages for off-premises consumption. Summary judgment was rendered for the City and affirmed by the Court of Civil Appeals. 561 S.W.2d 576.

In Baccus v. City of Dallas, 454 S.W.2d 391 (Tex.1970), we wrote that in moving for a summary judgment the proponents of a rezoning ordinance “have the burden of establishing affirmatively by summary judgment proofs that conditions either conclusively support passage of the ordinance or make that action debatable or issuable.” Here the Court of Civil Appeals has held that Albert, the non-movant, had the burden of establishing that the City was not entitled to a summary judgment. The action of the Court of Civil Appeals therefore conflicts with our opinion in Baccus.

The City argues that the judgment of the Court of Civil Appeals is nevertheless sustainable because even if the proper burden of proof rule is applied, it has established its right thereto as a matter of law. We disagree. The summary judgment proofs of the City do not meet the requirements of Bliss v. City of Fort Worth, 288 S.W.2d 558 (Tex.Civ.App.1956, writ ref’d n. r. e.) in that they fail to show what matters were considered by the City Council at the meeting in which it took the action complained of here.

Pursuant to Rule 483, Tex.R.Civ.P., we grant the Application of Writ of Error and, without hearing oral argument, reverse the judgments of the courts below and remand the cause to the trial court.


author: ODOM, Judge.

text:
    Ralph WILKES, Appellant, v. The STATE of Texas, Appellee.
    No. 54425.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 17, 1978.

      Louis Dugas Jr., Orange, for appellant.
    Jim Sharon Bearden, County Atty. and Michael W. Shuff, Asst. County Atty., Orange, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for delivery of heroin. Punishment was assessed at 45 years.

Appellant first complains of a conversation between a juror and a witness for the State that occurred during a recess. The trial court conducted a hearing at which the witness and juror testified that the conversation concerned the National Guard, and the case was not mentioned. No harm has been shown and the trial court did not err in denying appellant’s motion for mistrial. See, Art. 40.03, Sec. 7, V.A.C.C.P. Maldonado v. State, Tex.Cr.App., 507 S.W.2d 206.

In his other ground of error appellant contends reversible error occurred when State’s exhibit one was admitted over his hearsay objection. The exhibit was an evidence envelope with writings made by the undercover officer shortly after the purchase of the heroin. While the objection was good and the trial court’s ruling was error under the authorities compared below, we conclude that in this case the exhibit did not harm appellant by presenting “a neat condensation of the government’s whole case against the defendant,” Battee v. State, Tex.Cr.App., 543 S.W.2d 91, quoting United States v. Ware, 7 Cir., 247 F.2d 698; nor was it shown that the exhibit actually accompanied the jury into the jury room.

Prior cases in which admissions of similar exhibits have required reversal include Coulter v. State, Tex.Cr.App., 494 S.W.2d 876; Nelson v. State, Tex.Cr.App., 507 S.W.2d 565; Battee v. State, supra; Sisson v. State, Tex.Cr.App., 561 S.W.2d 197; and, most recently, Carrier v. State, Tex.Cr.App., 565 S.W.2d 57 (1978). In each of those cases the harmful exhibit is set out in the opinion and may be compared by the reader. To distinguish this case we compare the exhibit here only with that in Carrier, the exhibit to which it is most similar.

In Carrier the exhibit bore these words:

In the instant case the exhibit as offered read:

The trial court sustained appellant’s hearsay objection in part and overruled it in part. Appellant sought exclusion of the entire exhibit, and after the court sustained the objection as to the first two lines on the exhibit by ordering them covered over, appellant secured an adverse ruling on his objection to the remainder of the exhibit. As admitted the exhibit read:

A comparison of the exhibit in Carrier with the exhibit admitted here reveals that neither the name of the charged offense (“unlawful dist of a dangerous substance”) nor identification of the substance (“heroin”) appears on the exhibit admitted here, while both of those components of the “neat condensation” of the State’s case were on the exhibit admitted in Carrier. Equally prejudicial information appeared on the exhibits admitted in Coulter, supra, and its progeny cited above. Although the exhibit here bears no greater indicia of reliability than was held insufficient in Coulter, and should have been excluded under the rule applied there, it was not so harmful here.

Accordingly, we conclude the error shown is not reversible, and overrule the ground of error.

The judgment is affirmed.

ROBERTS, J., dissents.


author: SHANNON, Justice.

text:
    Tommy O. DEAN, Appellant, v. Billy M. TUTOR, Appellee.
    No. 12653.
    Court of Civil Appeals of Texas, Austin.
    Feb. 22, 1978.
    Appellant’s Second Amended Motion Rehearing Denied May 17, 1978.
    Appellee’s Motion for Rehearing Granted May 17, 1978.
    Appellant’s Motion for Rehearing Denied June 7, 1978.

      Robert C. Howell, R. Stephen McNally, Austin, for appellant.
    James A. Builta, Lampasas, for appellee.
   SHANNON, Justice.

Appellant, Tommy 0. Dean, sued appel-lee, Billy M. Tutor, in the district court of Burnet County for specific performance of a contract for sale of land. Dean sought an order requiring Tutor to accept monthly payments under the contract. Tutor filed a counterclaim in which he alleged that he and Dean entered into a lease agreement for Dean’s use of certain heavy equipment and that Dean had defaulted to Tutor’s damage. Tutor claimed, as well, that Dean had converted the heavy equipment. After trial to the court, judgment for Tutor was entered. The judgment recited, among other things, that Dean had defaulted on the contract of sale and that the contract was “null and void.” The judgment provided that Dean take nothing and that Tutor recover $4,056.48 from Dean for breach of the equipment lease agreement.

Dean went to trial on his original petition in which he claimed that he had made all of the monthly payments, and that before Tutor exercised his claimed right of “rescission” under the contract he failed to make demand for “rescission.”

Dean attacks primarily that part of the judgment which denied his plea for specific performance of the contract of sale. The contract of sale is a form real estate sales contract which obviously was completed without the assistance of counsel. The pertinent parts of the contract are set out below:

“2. The purchase price is $15,000.00 payable as follows: $148.70 beginning January 15, 1973, with regular monthly payments of $148.70, for a total period of fourteen (14) years, with no penalty for prepayment.
“Buyer agrees not to re-sell [sic] or lease said premises without payment in full of the above obligation.
“In the event of default of payments (30-60 days past due), said contract will be Null and Void, and Buyer will remove his possessions without delay from the premises aformentioned [sic].”

Dean did not request the court to prepare findings of fact and conclusions of law, and none were prepared or filed. As a result, it is assumed on appeal that the district court found every fact necessary to sustain the judgment if such factual propositions were raised by the pleadings and supported by the evidence, Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950), and the judgment will be affirmed on any theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962).

The contract provides for forfeiture upon failure of the purchaser to make payment “30-60” days after due date. To have entered the take-nothing judgment, the court must have concluded that the contract terminated for Dean’s failure to make payment more than sixty days after a particular payment was due.

Tutor contends, in this connection, that Dean failed to make timely payment in the summer of 1975. With respect to the 1975 occasion, the evidence was Dean tendered payment for June and July of 1975 on July 17, 1975. On July 17, neither the June nor the July payment was in default. This is so, since the June payment was overdue by thirty-two days and the July payment was overdue by two days. Under the contract, Dean could wait until the sixtieth day after payment date before being in default.

Tutor maintains also that Dean failed to prove payment in October, November, and December, 1974, and that, accordingly, forfeiture occurred sometime before July 17, 1975. Although Dean claims that he made those payments, he failed to produce any receipts for those payments. In entering the take-nothing judgment against Dean, the court must have disbelieved Dean. Accordingly, Dean’s failure to make the three payments for more than sixty days, by the terms of the contract, would result in forfeiture unless, as Dean contends in his brief, Tutor waived the right of forfeiture.

Dean did not plead waiver, but evidence bearing on waiver, was introduced without objection, and, as a result, waiver was tried by consent. See Texas Reserve Life Insurance Co. v. Security Title Co., 352 S.W.2d 347 (Tex.Civ.App.1961, writ ref’d n. r. e.). All the evidence was that Deán paid and Tutor accepted those payments without complaint from January, 1975 to the summer of 1975. The district court’s implied finding that Tutor, by acceptance of late payments, did not waive the right for forfeiture is supported by no evidence.

Tutor, by cross-point, complains that the district court erred in failing to enter judgment for him for Dean’s alleged conversion of the leased property. Tutor claims that the undisputed evidence is that Dean converted the equipment by selling it for $7000. In refusing to enter judgment for Tutor in his claim for conversion, the district court had to conclude that either there was no lease agreement or that Dean did not convert the leased equipment.

The written lease contract was introduced into evidence. By its terms, Dean obligated himself to pay $1200 each month for twelve months for the use of a “D-7 Cat” and a “933 Cat Loader.” Dean tendered evidence going behind the lease contract, but the court sustained Tutor’s objection to the tender. With respect to conversion, all the evidence was that Dean sold the leased equipment. We would render judgment for Tutor on his claim for conversion if we could ascertain his damages. Dean’s testimony, however, was contradictory concerning the sale price of the “933 Cat Loader.” At one time he testified that the sale price for the loader was $3200 and at another time $3500. Because the liability issues were contested, the entire cause for conversion must be remanded. Texas R.Civ.P. 434; Spiritas v. Robinowitz, 544 S.W.2d 710 (Tex.Civ.App.1976, writ ref’d n. r. e.); Keith, Texas Rules of Civil Procedure: Comments on the 1975 Amendments, 39 Tex.B.J. 229 (1976).

Dean claims error by the district court in entering judgment in favor of Tutor for $4,056.48 for breach of the lease contract. Dean claims that Tutor “ . . . was not the true owner at law of the heavy equipment . . . ” but instead that Tutor was holding title as a constructive trustee for Dean. It should be noticed that Dean did not plead that Tutor was a constructive trustee. As already stated, Tutor proved up the lease contract. Dean tendered evidence going behind the contract, but upon objection, the court refused to admit the evidence. Tutor proved that Dean breached the lease contract. The point of error is overruled.

That part of the judgment awarding Tutor $4,056.48 for Dean’s breach of the lease contract is affirmed. That part of the judgment denying Tutor a recovery on his claim for conversion of the heavy equipment is reversed and judgment is remanded to the district court. That part of the judgment denying Dean specific performance of the contract for sale of the acreage is reversed and judgment is here rendered ordering specific performance of the contract for sale of the acreage.

ON MOTION FOR REHEARING

We were unable to render judgment for Tutor on his claim for conversion because we could not ascertain his damages. It is undisputed that Dean sold the “D-7 Cat” for $3,500. With respect to the “933 Cat Loader,” however, some evidence was that the sale price was $3,200. Other testimony was that the sale price was $3,500.

Tutor has now filed with the Clerk of this Court a waiver of his claim for conversion in excess of the sum of $6,700.

Accordingly, on motion for rehearing, that part of the district court’s judgment awarding Tutor $4,056.48 for Dean’s breach of the lease contract is affirmed. That part of the judgment denying Tutor a recovery on his claim for conversion of the heavy equipment is reversed and judgment is here rendered for Tutor for $6,700. That part of the judgment denying Dean specific performance of the contract for sale of the acreage is reversed and judgment is here rendered ordering specific performance of the contract for sale of the acreage.


author: BISSETT, Justice. NYE, Chief Justice, BISSETT, Justice. NYE, Chief Justice,

text:
    Franklin R. NAVARRO, Appellant, v. Ollie B. COLLORA et al., Appellees.
    No. 1223.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 28, 1978.
    Rehearing Denied April 20, 1978.

      Dale Harvill, Harvill & Hardy, Michael W. Melton, Joel W. Cook, Schlanger, Cook, Cohn & Mills, Houston, for appellant.
    Houston Munson, Thomas K. Robinson, Gonzales, Don Blansitt, Schulenburg, for appellees.
   OPINION

BISSETT, Justice.

The opinion of this Court is this case heretofore rendered and filed on December 29, 1977 is withdrawn and this opinion is substituted therefor.

This is an instructed verdict case. Ollie B. Collora sued Franklin R. Navarro for partition of a 68.5 acre tract of land located in Lavaca County, Texas. Her petition was filed on January 7, 1971 in the District Court of Lavaca County, Texas. Josephine Constance Collora, Frank Dominick Collora and Joseph M. Collora, Jr., minor children of the plaintiff Ollie B. Collora and her former husband Joseph Michael Collora, from whom she was divorced in 1959 and who died testate in 1968, acting by and through Charles Frank Mustachia and Frances Mustachia, testamentary trustees of the Estate of Joseph Michael Collora, Deceased, intervened and asked that the defendant be required to assign his interest in the land “to the JOSEPH COLLORA ESTATE”. The petition in intervention was filed on March 16, 1973.

Trial before a jury commenced on January 12, 1976. After all parties had rested, the plaintiff and the intervenors each filed a motion for an instructed verdict. Both motions were granted and judgment was rendered on October 20, 1976. Franklin R. Navarro, the defendant, has appealed. We reverse and remand.

The parties will be referred to either by name, or as “plaintiff”, “intervenors”, and “defendants”, as they were in the trial court. “Joseph Michael Collora” and “Joe M. Collora” are one and the same person.

The judgment contained the following findings of fact:

(1) a valid marriage existed between the plaintiff and Joseph M. Collora prior to the purchase of the 68.5 acre tract by Joseph M. Collora through the Veterans Land Board;
(2) the Court of Domestic Relations of Harris County, Texas, entered a judgment which set aside an undivided one-half interest in the 68.5 acre tract to the plaintiff Ollie B. Collora;

The judgment decreed:

(1) the plaintiff recover from the defendant “the title to and possession of an undivided one-half interest” in the 68.5 acre tract;
(2) the intervenors recover from the defendant “the title and possession of an undivided one-half interest in and to the same property”; and,
(3) the plaintiff and the intervenors “shall have their writ of possession for said property”.

Defendant brings forward four points of error. Two points (1 and 2) are directed at the judgment in favor of the plaintiff, and the other two points (3 and 4) are directed at the judgment in favor of the intervenors. He contends that the trial court erred in granting the motions for instructed verdict on the grounds: 1) “the evidence adduced at the trial raised significant issues of fact”; and 2) the evidence supporting each motion “was not conclusive”.

The circumstances which entitle a litigant to an instructed verdict are clearly set out in 56 Tex.Jur.2d, Trial § 206 (1964), as follows:

“A motion for an instructed verdict will be granted where no issue of fact is presented by the evidence, where only the legal effect of evidence is involved, where the facts are properly pleaded and indisputably proved, where no verdict other than the one requested could properly be sustained, or where reasonable minds could draw only one inference from the evidence.”

In reviewing an instructed verdict case, an appellant court must consider all of the evidence in the light most favorable to the party against whom the verdict was instructed and must disregard all conflicting evidence. Echols v. Wells, 510 S.W.2d 916 (Tex.Sup.1974); Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.Sup.1970); State Highway Department v. Hinson, 517 S.W.2d 308 (Tex.Civ.App.-Corpus Christi 1974, writ ref’d n. r. e.). When reasonable minds may differ as to the truth of controlling facts, an issue for the trier of facts is presented. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365 (Tex.Sup.1948).

In late 1948 or the first part of 1949, Joe M. Collora and the plaintiff became interested in purchasing land under the Texas Veterans’ Land Board Program. They located a 68.5 acre tract of land which is the subject matter of this suit, and a contract of sale and purchase, hereinafter called the “contract”, was signed on January 17,1950, by the Veterans’ Land Board, as seller, and by Joe M. Collora, as purchaser. It provided for the purchase of said land by Joe M. Collora for the total consideration of $7,000.00, payable $350.00 down and the remainder in semi-annual installments ($143.30) over a period not to exceed 40 years, with interest thereon at the rate of 3% per annum.

Joe M. Collora and the plaintiff were divorced by the Court of Domestic Relations of Harris County, Texas, on December 15,1959. The contract was outstanding and in force and effect at that time.

Joe M. Collora, by deed dated January 3, 1962, purported to convey all of the subject land to the Camille Corporation, and by assignment dated January 10, 1962, purported to assign the contract covering said land to the Camille Corporation. The assignment was approved by the Veterans’ Land Board. Thereafter, the Camille Corporation, by deed dated May 27, 1965, purported to convey all of the 68.5 acre tract to the defendant. The record does not reveal that this assignment was approved by the Veterans’ Land Board.

Joe M. Collora died in 1968, and was survived by three children, the intervenors herein. Joe M. Collora did not himself seek to set aside the assignment and conveyance to the Camille Corporation, nor did he attack the conveyance to the defendant on any ground.

The land in question was purchased by the Veterans’ Land Board by deed dated January 23,1950. There is no evidence that the Board has ever executed and delivered a deed to the land to anyone. It is also established by the evidence that at the time of the assignment of the contract and the execution of the deed by Joe M. Collora to the Camille Corporation that the land was reasonably worth $23,000.00 and that the balance then due the Veterans’ Land Board on the original purchase price was approximately $5,500.00. Camille Corporation paid all installments due the Veterans’ Land Board from January 3, 1962 until May 27, 1965. Apparently all installments due subsequent to May 27, 1965 had been paid by the defendant.

The evidence does not justify, authorize or permit a partition of the land between the parties to this lawsuit. The most that could be accomplished is an adjustment of equities, if any, between the parties.

The judgment of the trial court, which is now before this Court in this appeal, did not “partition” the land, as prayed for by the plaintiff, and did not order the defendant “to reassign the contract of sale to the JOSEPH COLLORA ESTATE”, as prayed for by the intervenors. In effect, the judgment decreed, in part, that the plaintiff and the intervenors each recover from the defendant “the title” to an undivided one-half interest in the land involved despite the fact that the apparent record title to the land was in the Veterans’ Land Board, who was not a party to the suit. However, the defendant does not attack the judgment on those grounds, and the record reveals that all parties tried the issue of title to the land as if the only parties who owned the land and the title thereto were the plaintiff, the intervenors and the defendant. No exception was directed by the defendant to the substance of the plaintiff’s and the interve-nors’ petitions and no contention was voiced by the defendant that the title to the land involved was in the Veterans’ Land Board at all times pertinent to this suit. In view of our decision to reverse the judgment and to remand the cause to the trial court, we do not further discuss the variance between the pleadings, the evidence, and the judgment, nor do we pass upon the question of whether the trial judge was authorized to invest title to the land in the plaintiff and in the intervenors, as was done in this case.

THE APPEAL OF THE JUDGMENT FAVORABLE TO PLAINTIFF

The controlling issue in the controversy between the plaintiff and the defendant is whether the plaintiff and Joe M. Collora were validly married under the common law prior to January 17, 1950, when the contract was signed. The defendant first claims that there was “no admissible evidence” to prove the existence of a common law marriage. He argues that the trial court erred in permitting the plaintiff to testify that in April, 1949 she and Joe M. Collora agreed to be married because such testimony was not admissible, over his objection, because it was in violation of Tex. Rev.Stat.Ann. art. 3716 (1926), commonly called the “Dead Man’s Statute”. We do not agree. Neither the plaintiff nor the defendant were in court in the capacity of either an heir of Joe M. Collora, Deceased, or as a legal representative of his estate. The interest in the property claimed by the plaintiff is an interest which is severable from the interest asserted by the interve-nors, and neither interest infringes in any manner upon the other. The plaintiff does not sue in a dual capacity wherein the rights asserted by her are inseparable from the rights asserted by an heir of a decedent or by a legal representative of the estate of a decedent. See Pugh v. Turner, 145 Tex. 292, 197 S.W.2d 822 (1946); Fuston v. Wilson, 144 Tex. 588, 192 S.W.2d 444 (1946). The testimony was admissible in evidence.

The defendant next argues that a common law marriage was not established by conclusive evidence. We agree.

In order for a valid common law marriage to come into existence, all of the following prerequisites must be met: 1) a present agreement to be husband and wife, 2) living together as husband and wife, and 3) a holding of each other out to the public as husband and wife. Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.Sup.1963).

The plaintiff testified that from 1947 until early 1949, Joe M. Collora dated her on a “steady basis”, and in April, 1949, the two “agreed to a marriage”; and that they then moved into his mother’s home where they lived until either late 1949, or until February 11, 1950, when she and Joe M. Collora “confirmed our marriage”. She further testified that she and Joe did not go through a marriage ceremony during the time that they lived with Joe’s mother because there were difficulties in that Joe’s mother was a “very devout Catholic”, and she (plaintiff) was a “Protestant”.

The plaintiff stated, without contradiction, that from April, 1949 until the time that she and Joe were divorced that they lived and cohabited together; maintained a household; and Joe always introduced her to others as “his wife” or as “Mrs. Collora”. Numerous witnesses corroborated this testimony by the plaintiff. The witnesses testified, in summary, that each first became acquainted with the plaintiff sometime in 1949; that she and Joe were living together at that time; that Joe introduced the plaintiff to them as “his wife”; that they introduced Joe and the plaintiff to others as husband and wife; and, that Joe and the plaintiff maintained a home and household on the 68.5 acre tract of land. Unquestionably, it was established as a matter of law that the plaintiff and Joe M. Collora, prior to January 17, 1950, lived together as husband and wife and held each other out to the public as husband and wife. Thus, two of the elements required to establish a common law marriage were proved by evidence that is conclusive.

With respect to the remaining element required to establish a common law marriage (a present agreement to be husband and wife), the substance of the plaintiff’s uncontradicted testimony is that she and Joe M. Collora agreed to be married in April, 1949. Her testimony was direct and positive. However, under the circumstances present, the testimony, though direct, positive and uncontradicted, ushers -into play the rule of permissible skepticism.

As a general rule, the uncorroborated testimony of an interested party does no more than raise a fact question, which is to be resolved by the trier of fact. But, if the testimony of the interested party is clear, direct, positive and free from contradiction and there are no circumstances that tend to cast suspicion on it, the testimony must be accepted as true as a matter of law and no issue of fact is raised. This is especially true when the testimony is of a character that permits ready contradiction if untrue, and the adverse party offers no contradicting evidence. Flack v. First Nat. Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628 (1950); Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1942); Simmonds v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332 (Tex. Comm’n App.—1936, opinion adopted). However, where the uncontradicted testimony of an interested party is of such a nature that it cannot be readily contradicted if untrue, an issue relating to the credibility of the witness is presented, which is to be determined by the jury in a jury-trial case. James T. Taylor, Etc. v. Arlington Ind. School District, 160 Tex. 617, 335 S.W.2d 371 (1960). Also, the testimony of an interested party relating to a matter of which the adverse party has no knowledge or ready means of contradiction does no more than raise an issue of fact. Lewisville State Bank v. Blanton, 525 S.W.2d 696 (Tex.Sup.1975).

The rules announced in the Taylor and the Lewisville Bank cases control the disposition of this appeal. Even though those cases are summary judgment cases, there is no reason why the same rules should not apply to an instructed verdict case. The rule set out in the Taylor case has been applied by the appellate courts of this State in many cases other than summary judgment cases. See Gevinson v. Manhattan Construction Co. of Okla., 449 S.W.2d 458 (Tex.Sup.1969); Victor Equip. Co. v. Denton Independent Sch. Dist., 548 S.W.2d 464 (Tex.Civ.App.—Fort Worth 1977, writ ref’d n. r. e.); Berner v. Ferris, 538 S.W.2d 658 (Tex.Civ.App.—Amarillo 1976, no writ); City of Garland v. Wyrick, 523 S.W.2d 482 (Tex.Civ.App.—Eastland 1975, writ ref’d n. r. e.); Kimbell Milling Company v. Marcet, 449 S.W.2d 100 (Tex.Civ.App.—San Antonio 1969, no writ); Taylor v. Benton, 390 S.W.2d 509 (Tex.Civ.App.—Eastland 1965, no writ); Warlick Press, Inc. v. Lantex Construction Co., 375 S.W.2d 349 (Tex.Civ.App.—Tyler 1964, no writ).

Juries are the exclusive judges of the credibility of witnesses and the weight to be given their testimony, Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962). “ . . . where you have a jury the trial court cannot decide what witnesses are credible or incredible”. West v. Slaughter, 384 S.W.2d 185 (Tex.Civ.App.—Waco 1964, writ ref’d n. r. e.).

In the instant case, the only witness who could have contradicted plaintiff’s testimony concerning the asserted agreement to be married was Joe M. Collora, who died several years before the plaintiff filed this suit. The defendant did not have the means of contradicting the plaintiff’s testimony. Her testimony is of such a nature that the defendant could not readily contradict it, if it is untrue. The attendant circumstances create issues of fact which should have been submitted to the jury for determination. Taylor, supra; Lewisville Bank, supra; Huie v. Lone Star Air Conditioning Company, 486 S.W.2d 182 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.); Southwest Bank & Trust Co. v. Executive Sportsman Association, 477 S.W.2d 920 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); Republic Insurance Co. v. State Farm Insurance Co., 416 S.W.2d 557 (Tex.Civ.App.-Fort Worth 1967, no writ); Barker v. Kidd, 357 S.W.2d 490 (Tex.Civ.App.—Austin 1962, no writ). We are of the opinion and so hold, that the credibility of the plaintiff was cast in issue, which precluded the granting of her motion for an instructed verdict.

The plaintiff further contends that the trial court correctly granted her motion for an instructed verdict because she was awarded an undivided one-half interest in the 68.5 acres by the 1959 divorce decree, and that such an award is not open to the defendant’s attempted collateral attack thereon. The defendant claims that the specific 68.5 acre tract was not adequately described in the divorce decree and could not be located on the ground from such description; consequently, the recitals in the divorce decree are legally insufficient to award to the plaintiff, as a matter of law, an undivided one-half interest in either the equity under the contract or in the land herein involved.

The only mention made in the divorce decree, with respect to any property situated in Lavaca County, Texas, is found in the following excerpt from the decree:

“The Court finds that the parties hereto have asserted a claim in the farm and some improvements located on said farm in Lavaca County, Texas. The Court finds that the Plaintiff, JOSEPH MICHAEL COLLORA, has a separate property interest and equity in said farm and improvements to the extent of $350.00; and that the balance of the equity is the community property of the parties hereto. The Court finds that as to said community property equity the Plaintiff, JOSEPH MICHAEL COLLORA, owns a one-half (V2) interest, and OLLIE BELL COLLORÁ owns a one-half (V2) interest

The interpretation and construction of a judgment is not an attack upon it. State v. Reagan County Purchasing Co., 186 S.W.2d 128, 136 (Tex.Civ.App.—El Paso 1944, writ ref’d w. o. m.); G. Hodges, Collateral Attacks on Judgment, 41 Texas L.Rev. 163, 188 (1963); A judgment is to be construed like other written instruments. Lone Star Cement Corporation v. Fair, 467 S.W.2d 402, 404, 405 (Tex.Sup.1971). The defendant’s claim relating to the 1959 divorce decree does not constitute a collateral attack on the decree itself.

We now consider the effect of the pertinent recitals in the 1959 divorce decree. It was long ago established by the Supreme Court of Texas that for an instrument to be a valid conveyance of land, the description must be so definite and certain on the face of the instrument itself, or in some other writing therein referred to, that the land can be identified with reasonable certainty in order that it may be located on the ground. Morrow v. Shotwell, 477 S.W.2d 538 (Tex.Sup.1972); Norris v. Hunt, 51 Tex. 609 (1879). The rule applied with equal force to a judgment. Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848 (1946).

The 1959 divorce decree does not refer to any writing which describes or in any manner locates the 68.5 acre tract here involved. There is nothing in the decree which suggested that the “farm and some improvements located on said farm” is the identical 68.5 acres which the plaintiff sought to partition in this lawsuit. There is nothing in the decree which will support a presumption that only one farm was owned by the parties in Lavaca County. The decree purports to deal only with a “claim”, which, without more, could be one of several claims asserted by the parties. The description contained in the divorce decree renders it impossible to locate any specific tract of land on the ground in Lavaca County. The decree cannot support the plaintiff’s contention that she was awarded an undivided one-half interest in the said 68.5 acres of land.

Assuming, arguendo, that the plaintiff and Joe M. Collora were lawfully married under the common law, as contended by her, the equity under the contract which was built up over the years prior to the 1959 divorce decree, became community property. Since the trial court found that Joe M. Collora owned a $350.00 equity therein as his separate property and that the remainder of the equity was community property, and since the divorce decree did not partition the “balance” of the equity between the parties, Joe M. Collora and the plaintiff, from and after December 15,1959, owned such “balance” of the equity as tenants in common, with each owning an undivided one-half interest therein. Busby v. Busby, 457 S.W.2d 551 (Tex.Sup.1970).

Joe M. Collora’s assignment of the contract and his attempted transfer of the entire tract could not transfer a greater interest in the property than that which he owned. The Camille Corporation could have acquired no more than Joe Collora’s undivided one-half interest in the equity owned by him and the plaintiff as of December 15, 1959, whatever that interest may have been, and could have transferred no more than that interest in the property to the defendant. The equities, if any, owned by the plaintiff and the defendant in the contract were not adjusted by the trial court in the instant case, in what could only have been an action for adjustment of equities incidental to a partition of common property rights. See Smith v. Cooper, 541 S.W.2d 274 (Tex.Civ.App.—Texarkana 1976, no writ).

Since an issue relating to credibility of the plaintiff is presented, and since the 1959 divorce decree did not award the plaintiff an undivided one-half interest in the land in controversy, it was reversible error to grant the plaintiff’s motion for an instructed verdict. Points 1 and 2 are sustained.

THE APPEAL OF THE JUDGMENT FAVORABLE TO INTERVENORS

The will of Joe M. Collora, Deceased, was admitted to probate in February, 1968. Charles Frank Mustachia and Frances Mus-tachia qualified as trustees thereunder. The intervenors are the sole beneficiaries under the will of the decedent. There is no evidence as to the age of the intervenors.

In disposing of the appeal concerning that portion of the judgment which was favorable to the intervenors, the contentions made by the defendant in his points (3 and 4) present three questions. First, did the evidence reveal that an attorney-client relationship existed as a matter of law between the defendant and Joe M. Collora in January, 1962, when the latter assigned the contract and purported to convey the land to the Camille Corporation all of his rights in and to the contract and to the 68.5 acre tract? Second, if such an attorney-client relationship did exist, does the evidence establish as a matter of law that the aforesaid assignment and conveyance constituted a transaction between the defendant and Joe M. Collora? Third, if there was such an attorney-client relationship and if the transfer of the property rights to the Camille Corporation constituted a transaction between the defendant and Joe M. Collora, does the evidence conclusively show that the transaction was unfair to Joe M. Collo-ra?

It is a well established rule in this State that the attorney-client relationship is highly fiduciary in nature. The integrity of such relationship should and must be carefully observed and scrupulously upheld at all times for the attorney owes his client the highest of good faith and honest dealing. There is a presumption of unfairness which attaches to a transaction between an attorney and his client, and once it is shown that the attorney-client relationship existed at the time of the transfer of property from the client to the attorney, the burden of proving its fairness is on the attorney. Archer v. Griffith, 390 S.W.2d 735 (Tex.Sup.1964); Ames v. Putz, 495 S.W.2d 581 (Tex.Civ.App.—Eastland 1973, writ ref’d).

It is conclusively established by the evidence that the defendant is an attorney at law and that he was the attorney for Joe M. Collora, his client, during the divorce proceedings between Collora and the plaintiff. It is further conclusively shown that an attorney-client relationship did exist between the defendant and Joe M. Collora at the time of the assignment of the contract and the conveyance of the land by the latter to the Camille Corporation in January, 1962.

The evidence further showed that in January, 1962 the Camille Corporation was in the business of dealing in real estate matters, and the purchasing of notes receivable and accounts receivable. The defendant was the president of the corporation and his minor children were the sole stockholders thereof. Following the execution of the deed and the assignment to the Camille Corporation, the buildings on the premises were repaired and “substantial amounts of improvements” were built thereon. Horses, which belonged to the defendant’s children, were pastured on the land; the children used the land for recreation. In defendant’s own words, which were not challenged, “anything I did was done in behalf of the children through their corporation and through them individually”. The defendant testified that it was the corporation that expended its money on the property “the majority of the time”; that “on many occasions when their corporation was out of money, I would lend money to the corporation or advance it in their behalf”; that he never paid for any improvements “that occurred on the farm” out of his own money; and that the Camille Corporation assumed the balance of the purchase price due under the contract and made payments thereon to the Veterans’ Land Board.

The defendant further stated that in January, 1962, Joe M. Collora owed him $4,000.00, being $500.00 for a loan and $3,500.00 for attorney’s fees in connection with legal services previously furnished. He also said that he cancelled the $4,000.00 obligation in consideration of the execution of both the deed and the assignment to the Camille Corporation by Joe M. Collora.

The transfer of the subject property to the Camille Corporation was not directly from Joe M. Collora, the client, to the defendant, his attorney, but was a transfer from the client to his attorney’s family-owned corporation. The transfer, on its face, was a transaction between Joe M. Collora and the Camille Corporation and as such did not constitute a transaction as a matter of law between the client, Joe M. Collora, and his attorney, the defendant.

In order to hold that the assignment and conveyance to the Camille Corporation was in fact a transaction between the defendant and Joe M. Collora, we would be required to hold that the evidence established as a matter of law: 1) that the Camille Corporation was either the defendant’s alter ego, and that the transfer of the property to the Camille Corporation was, in legal effect, a transfer to the defendant himself, or 2) that the defendant, in January, 1962, had a plan to ultimately acquire the property for himself and used the Camille Corporation as a vehicle to accomplish his purpose. Either is a fact issue that the jury should have decided.

In view of our holding that it was not conclusively established by the evidence that the assignment and conveyance to the Camille Corporation constituted a transaction between the defendant and Joe M. Collora, it is not necessary that we decide in this appeal whether the transaction was unfair to Joe M. Collora as a matter of law. Points 3 and 4 are sustained.

DISPOSITION OF THE APPEAL

The judgment of the trial court is reversed and the cause is remanded to the trial court for a retrial. Costs of this appeal are assessed 50% to the plaintiff and 50% to the intervenors.

REVERSED and REMANDED.

NYE, Chief Justice,

dissenting.

I respectfully dissent because an instructed verdict was proper on the element of whether the plaintiff, Ollie B. Collora, and Joe M. Collora agreed to be married. The “rule of permissible skepticism” relied upon by the majority is not a rule of mandatory application.

The general elements of a common law marriage are: 1) a present agreement to be husband and wife; 2) living together as husband and wife; and 3) a holding of each other out to the public as husband and wife. Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.Sup.1963). The only element that is at all questionable in the case before us is the “present agreement” element. As stated by the majority in their original opinion, the testimony of the plaintiff concerning the “present agreement” was admitted to be direct, positive and uncontradicted. However, the majority would now hold that this testimony of Ollie Collora is unreliable because of the credibility of the plaintiff and her testimony should be tested by a jury determination.

The general rule that evidence given by an interested witness, even though uncon-tradicted, presents a jury issue, is also subject to a well-known exception, aptly stated by the Supreme Court in Gevinson v. Manhattan Construction Company of Oklahoma, 449 S.W.2d 458, 467 (Tex.Sup.1969). On the other hand, the Court reasoned:

“conclusive effect may be given to the testimony of an interested witness provided the testimony is clear, direct and positive and there are no circumstances tending to discredit or impeach the same.”

The Supreme Court also recognized this exception:

“when the opposite party had the means and opportunity of disproving the testimony, if it were not true, and failed to do so.” Gevinson, supra at 467.

The testimony of an interested party or witness is not wholly without probative force. An instructed verdict that is based thereon favorable to the party with whom the witness is identified is proper when the testimony pertains to matters reasonably capable of exact statement; is clear, direct and positive; is internally devoid of inconsistencies and contradictions; and is uncon-tradicted either by the testimony of other witnesses or by circumstances. In other words, when there is nothing to cause any reasonable suspicion as to its truth it may be given conclusive effect. “Particularly is this rule applicable when there is some corroboration, either by another witness , or by surrounding circumstances; but, of course, when there exists corroboration we are no longer dealing with an issue raised solely by the testimony of an interested witness.” McDonald Texas Civil Practice, Jury Trial General Sec. 11.28.6 pp. 247-248 (1965).

Here the conclusive testimony of the witnesses as to the second and third elements of a common law marriage tended to corroborate the plaintiff’s testimony concerning the present agreement to be married. In addition, the defendant’s attorney did not even attempt to cross-examine the plaintiff. Furthermore, there was no cross-examination of the other non-interested witnesses who testified directly, positively and unequivocably concerning the other essential elements of the common law marriage.

Although the defendant did not have the deceased husband’s testimony, the defendant’s attorney did have available for use the time honored method for testing a witness’s credibility, and that was by cross-examination of the plaintiff wife’s testimony.

The cases cited by the majority which establish the general rule are summary judgment cases which do not test the credibility of the witnesses before a trial court in the same manner as live witnesses. In Lewisville State Bank v. Blanton, 525 S.W.2d 696 (Tex.Sup.1975), a case the majority termed as controlling, the Supreme Court noted that the only summary judgment proof of the issue in question was an affidavit of an interested witness stating facts of which the defendants had no knowledge or ready means of confirmation and, therefore, the Court concluded the affidavit alone was insufficient to conclusively establish the facts necessary to support the summary judgment. This is not a summary judgment case and, in addition, there are other circumstances substantiating the plaintiff’s testimony.

The majority states that James T. Taylor & Son, Inc. v. Arlington Ind. School District, 160 Tex. 617, 335 S.W.2d 371 (1960) is also controlling in the disposition of this case. In the later case of Gevinson, cited above, the Supreme Court, by the following language clearly shows that the rule in Taylor does not carry the mandatory import suggested by the majority opinion. Our highest court said:

“On the other hand the basis for recognizing an exception [to the interested witness rule] is weakened somewhat when the testimony is such that it could not readily be contradicted if untrue. See James T. Taylor & Son, Inc. v. Arlington Ind. Sch. Dist., 160 Tex. 617, 335 S.W.2d 371;” Gevinson, supra at 467. (emphasis added).

It should be emphasized that the Supreme Court did not state that the basis for recognizing the above mentioned exception to the interested witness rule is precluded as a matter of law if the testimony of the interested witness might not be readily contradicted. I can only conclude that the circumstances in each case must be carefully considered.

The circumstances surrounding the plaintiff and her deceased husband living together prior to the ceremonial confirmation of their alleged common law marriage, would not comport with human experience had it not been true that they were living together pursuant to a “present agreement” to be married. There were religious difficulties involved in consummating the marriage ceremonially because plaintiff wife, Ollie, was a Protestant, and the husband, Joe, was a Catholic. In addition, plaintiff and Joe Collora were living together as husband and wife in the home of his mother, a “devout Catholic”. During this same time the conclusive evidence from disinterested witnesses established that they held themselves out to the community to be husband and wife. How could it be said that absent the unimpeachable “present agreement” which the wife testified to under oath, Joe and Ollie would have exhibited the publicly viewed marriage relationship. This circumstantial evidence established conclusively all three elements of the common law marriage. When such corroboration exists, we are no longer dealing with an issue raised solely by the testimony of an interested witness. See McDonald, supra.

It is interesting to me that in a case very similar to the facts in this very case the Commission of Appeals would have also approved the instructed verdict of the trial court. They said:

“Proof that a couple lived together under the same name, introducing each other as husband and wife, respectively, recognizing their children, and the many other respects tending to show their marital status, is sufficient to prove a marriage. It is not necessary in addition to offer evidence of the statutory celebration, or of the actual agreement of the parties to be husband and wife. These essential facts are embraced in the marriage which is thus proved by circumstances.” Consolidated Underwriters v. Kelly, 15 S.W.2d 229, 230 (Comm’n App. 1929, judgmt. adopted).

The general rule is that a directed verdict for the plaintiff should be granted where reasonable minds could draw only one inference from the evidence. 56 Tex.Jur.2d, Trial § 206 (1964); 3 McDonald, Texas Practice § 11.28.1 (1965). The three elements required to constitute a common law marriage can be established by circumstantial as well as direct evidence. I must conclude that the overwhelming evidence in this case gave conclusive effect to the plaintiff’s testimony so that reasonable minds could not have differed as to the truth that the “present agreement” did in fact exist.

I would sever the action brought by the intervenors from that brought by the plaintiff; affirm that portion of the judgment which is favorable to the plaintiff; and reverse and remand for a new trial that portion of the judgment which is favorable to the intervenors.

OPINION ON MOTION FOR REHEARING

BISSETT, Justice.

Ollie B. Collora, the plaintiff, in her motion for rehearing, contends that her testimony to the effect that in April, 1949, she and Joe M. Collora “agreed to a marriage” was corroborated by two witnesses, viz: Evelyn Carabela and Ruby Measles. We have re-read the testimony of these two witnesses. Neither testified that she was “informed that the parties agreed to a marriage”, as asserted in the motion for rehearing. Evelyn Carabela testified that in the summer of 1949, she was “informed they got married”. She did not identify her informant. Ruby Measles, an aunt of Ollie B. Collora, testified that in the summer of 1949, and after Ollie B. Collora and Joe Collora had moved “in with Joe’s mother”, Ollie and Joe “said they were married, and I took it as they were married”. The testimony of the witnesses does not corroborate Ollie B. Collora’s testimony with respect to a present agreement in April, 1949 to be husband and wife.

As stated in our original opinion, the evidence established as a matter of law that Joe M. Collora and Ollie B. Collora, prior to the execution of the contract of purchase and sale of the land in question, cohabited and held themselves out to the public as husband and wife. Thus, two of the essential elements of a common law marriage were conclusively established. The controlling question presented by the appeal is whether an agreement to marry has also been established as a matter of law. Since this is an instructed verdict case, the evidence must be viewed in the light most favorable to Franklin R. Navarro, the defendant, against whom the verdict was instructed. While we recognize that it is not essential that an express agreement to marry must be shown by direct evidence, and that a contract to marry may be implied from evidence which establishes the other two elements of the marriage, we do not believe that, in this case, the other essential element, the agreement to marry, can be implied as a matter of law.

The only evidence of an agreement to marry is found in the testimony of Ollie B. Collora, the plaintiff. Under all the circumstances revealed by the record, the general rule that the uncorroborated testimony of an interested party does no more than raise a fact issue to be resolved by the trier of fact should be applied in this case. We remain convinced an issue of fact concerning the asserted agreement to be married in April, 1949 was raised by the evidence, and that the credibility of Ollie B. Collora was cast in issue. The issue should have been submitted to the jury for determination. The trial court erred in granting the plaintiff’s motion for an instructed verdict. The motion for rehearing is overruled.

NYE, Chief Justice,

dissenting.

I respectfully still dissent. I remain convinced that the portion of the trial court’s judgment affecting Ollie Collora should be affirmed.


author: GUITTARD, Chief Justice.

text:
    OAK LAWN PRESERVATION SOCIETY et al., Appellants, v. BOARD OF MANAGERS OF DALLAS COUNTY HOSPITAL DISTRICT, Appellee.
    No. 19478.
    Court of Civil Appeals of Texas, Dallas.
    April 6, 1978.

      Joe B. Harrison, Wynne & Jaffe, Dallas, for appellants.
    Thomas V. Murto, III, Earl Luna, Luna & Murto, Dallas, for appellee.
   GUITTARD, Chief Justice.

This appeal involves another attack by neighboring property owners on a lease of the property formerly used as Woodlawn Hospital to Dallas County for use as a minimum security jail. Plaintiffs are Oak Lawn Preservation Society, a non-profit corporation composed of property owners in the Oak Lawn area, and four individual property owners. They sued the Board of Managers of the Dallas County Hospital District for a declaration that the district’s lease of the property to the county was illegal and void and for an injunction restraining the district from permitting its property to be used for any purpose other than providing medical care to the needy. The district moved for summary judgment on the ground that plaintiffs lacked standing to sue and on the ground that a judgment to which plaintiffs were not parties was res judicata of their claim under the doctrine of virtual representation. We do not decide the standing issue because we hold that even if plaintiffs have standing to bring this suit, they were virtually represented in the former suit by parties with the same interests and they are now barred by res judicata. Accordingly, we affirm the summary judgment.

The applicability of the doctrines of res judicata and virtual representation must be determined in light of the history of this litigation. Plaintiff Oak Lawn Preservation Society and the other plaintiffs originally sued the hospital district in the 14th District Court for the same relief now sought, alleging that the district’s lease of the former Woodlawn Hospital to the county for a jail violated article 4494n, Tex.Rev. Civ.Stat.Ann. (Vernon 1976) which provides for the organization of hospital districts and declares their purpose to be “to furnish medical aid and hospital care to the indigent and needy persons residing in said Hospital District.” The district moved to dismiss and abate on the ground that a previous order of the United States District Court in Taylor v. Sterrett, 344 F.Supp. 411 (N.D.Tex.1972) was res judicata of the issues raised by the Oak Lawn plaintiffs. The 14th District Court sustained the motion to dismiss, and, on appeal, this court reversed and remanded for further proceedings on the ground that the order of the federal court had not adjudicated the validity of the lease. Oak Lawn Preservation Society v. Board of Managers of Dallas County Hospital District, 539 S.W.2d 167 (Tex.Civ.App.—Dallas 1976, no writ).

After remand, the Oak Lawn suit was consolidated with another property-owner suit, Rosenthal et al. v. Whittington et al., then pending in the 101st District Court. After the consolidated suit went to trial and testimony began, a difference arose between counsel for the two groups of plaintiffs concerning trial tactics, and the Oak Lawn plaintiffs voluntarily dismissed their suit in that court and subsequently filed this suit in the 134th District Court.

Meanwhile, the Rosenthal suit proceeded in the 101st District Court. The Rosenthal plaintiffs had alleged in their amended petition that they were property owners and taxpayers in the Oak Lawn neighborhood, and they brought their suit not only against the hospital district but also against the commissioner’s court of Dallas County. They sought to set aside the same lease between the hospital district and the county on the ground that use of the former Wood-lawn Hospital as a jail constituted a nuisance in that it would cause the Oak Lawn neighborhood to deteriorate, and that the lease would violate the standards for county jails provided by articles 5115 and 5115.1, Tex.Rev.Civ.Stat.Ann. (Vernon Supp. 1978). They asserted that the lease would also violate article 4494n, which, they alleged defined the purposes of hospital districts and thereby impliedly prohibited use of their property for other purposes. They further alleged that the action of the commissioner’s court in leasing the property of the district was taken in bad faith and was arbitrary, fraudulent and an abuse of power.

In a pretrial conference, the Rosenthal plaintiffs waived the issue of whether the commissioner’s court or the hospital district had acted arbitrarily, unreasonably or in bad faith, but they preserved for trial the issues of whether the lease and use of the former hospital as a jail was illegal and beyond the power of the hospital district and the commissioner’s court, and they also reserved their claim of nuisance. The only issues submitted to the jury concerned the nuisance theory, but the trial court’s judgment, which denied the Rosenthal plaintiffs any relief, adjudged and decreed “that the lease between the Dallas County Hospital District and Dallas County, Texas, dated the 30th day of March, 1976, is a legal, binding and valid agreement between the parties thereto and is in full force and effect.” After this judgment was rendered, the hospital district pleaded it as res judica-ta to the suit of the Oak Lawn plaintiffs in the 134th District Court, and moved for summary judgment on that ground, as well as on the ground of lack of standing of the Oak Lawn plaintiffs to raise the question of validity of the lease. In response to this motion, the 134th District Court rendered the judgment from which the present appeal is taken.

The Oak Lawn plaintiffs, as appellants here, contend that the doctrine of virtual representation is not applicable because the Rosenthal case was pleaded and tried on the theory that use of the former hospital as a jail would constitute a nuisance, an issue that was not a matter of general public interest because its effect was limited to property owners in the immediate area, and that the issue of whether the lease agreement was illegal was not actually litigated or adjudicated. We conclude that the record does not support this contention. Although the issues submitted to the jury in that case concerned only the nuisance theory, the summary-judgment proof now before us shows that the question of the validity of the lease under article 4494n was expressly reserved at the pretrial conference and that the Rosenthal plaintiffs waived only the issue of whether the commissioner’s court and the hospital board acted arbitrarily and unreasonably in entering into the lease. As shown by that part of the judgment quoted above, the 101st District Court expressly adjudged and decreed that the lease was “a legal, binding and valid agreement between the parties thereto and in full force and effect.” Thus, it appears that the Rosenthal judgment decides the very question presented in the case now before us. Consequently, the doctrine of virtual representation bars the recovery sought by the Oak Lawn plaintiffs in the 134th District Court. Allied Van Lines v. Central Forwarding, Inc., 535 S.W.2d 412 (Tex.Civ.App.—Waco 1976, writ ref’d n.r.e.); Cochran County v. Boyd, 26 S.W.2d 364 (Tex.Civ.App.—Amarillo 1930, writ ref’d).

These plaintiffs argue further that the hospital district was not entitled to summary judgment on the ground that the lease was authorized as a matter of law since there was a fact issue as to whether the board exercised its statutory power arbitrarily, unreasonably, and capriciously. Plaintiffs point out that this issue was expressly waived by the Rosenthal plaintiffs in their suit, and thus plaintiffs insist that the doctrine of virtual representation does not apply here. In support of this argument, plaintiffs apparently rely on the opinion of this court in Oak Lawn Preservation Society v. Board of Managers of Dallas County Hospital District, 539 S.W.2d 167, 169 (Tex.Civ.App.—Dallas 1976, no writ). As already noted, that decision was made in an earlier appeal in this same controversy. In that case, the hospital district relied on an order of the United States District Court, in which the hospital district was not a party, directing the commissioner’s court to acquire the former Woodlawn Hospital for use as a minimum security jail. The hospital district had not been a party to the suit in the federal court, and no issue of the validity of a lease of the hospital, or of the power of the district to make such a lease, had been raised. We refused to apply the doctrine of virtual representation in that case because, we said, the issue as to whether the hospital district could properly authorize use of its property as a jail could be determined only in a proceeding to which the hospital district was a party.

That decision should not be construed as limiting the doctrine of virtual representation to issues actually decided in the earlier suit. The rule of res judicata bars litigation connected with a cause of action or defense which, by the use of reasonable diligence, might have been tried in the former action as well as those actually tried. Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642 (Tex.1971). The full scope of the rule applies to members of the public who have similar interests under the doctrine of virtual representation, as expressly held in Cochran County v. Boyd, supra, and also in Hodgkins v. Sansom, 135 S.W.2d 759 (Tex.Civ.App.—Fort Worth 1940, writ dism’d, judgmt. correct). Under these authorities, we hold that whether the hospital district acted arbitrarily, unreasonably, or capriciously was a question that could and should have been decided in the Rosenthal case, and the fact that the Rosenthal plaintiffs waived that issue does not now give them, or any other property owners or taxpayers in their same position, the right to raise the same issue in subsequent litigation. If the law were otherwise, one citizen after another could extend indefinitely litigation concerning the same act of a public body by attacking it on one new theory of law after another. This is the very problem that the doctrine of virtual representation is intended to avoid. Cochran County v. Boyd, supra.

Accordingly, we hold that the trial court properly rendered summary judgment on the ground that the judgment of the 101st District Court in the Rosenthal case adjudging that the lease between the county and hospital district was “legal, valid, and binding” bars the present plaintiffs, who are in virtually the same position, from attacking the same lease on the ground that the hospital board acted arbitrarily, unreasonably and capriciously.

Affirmed.


author: EVANS, Justice.

text:
    W. C. (Bill) SHEAD, Appellant, v. Dorothy GRISSETT, Appellee.
    No. 17099.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 6, 1978.
    Rehearing Denied May 4, 1978.

      W. C. Shead, Houston, for appellant.
    Marcus E. Faubion, Houston, for appel-lee.
   EVANS, Justice.

The sole question in this case is whether the summary judgment proof shows, as a matter of law, that the plaintiff’s cause of action for attorney’s fees is barred by the two year statute of limitation. Article 5526, Tex.Rev.Civ.Stat.Ann.

The plaintiff brought this action on August 23, 1977. He alleged in his sworn petition that he had rendered personal services on behalf of the defendant and he attached to his petition a statement dated June 24, 1975, for legal services “rendered” on defendant’s behalf in a divorce action, showing a balance due of $670.20. The defendant filed a plea in bar, alleging the action was barred by the two year statute of limitations, and also filed a sworn denial. The defendant then filed a motion for summary judgment based upon the bar of limitations, which motion the trial court sustained. The plaintiff brings this appeal from that order.

The defendant’s motion for summary judgment raised the issue of whether the pleadings alone show, as a matter of law, that the plaintiff’s cause of action is barred by the statute of limitation. Uniroyal, Inc. v. Vega, 455 S.W.2d 783 (Tex.Civ.App.—San Antonio 1970, no writ); Jenkins v. Kimbro, 380 S.W.2d 189 (Tex.Civ.App.—Austin 1964, writ dism’d). Contrary to the plaintiff’s contention, it is unnecessary that the motion for summary judgment be verified. Stafford v. Smith, 458 S.W.2d 217, 221 (Tex.Civ.App.—Houston [1st Dist.] 1970, no writ); 4 McDonald, Texas Civil Practice, Vol. 4, section 17.26.5, page 142 (1971).

In his opposition to the defendant’s motion for summary judgment, the plaintiff alleged that he had represented the defendant in a divorce action, that there were written instruments signed and sworn to by the defendant which showed that she had employed him to represent her, and that his suit for attorney’s fees was, therefore, an action for debt founded upon a contract in writing and governed by the four year statute of limitations. Article 5527, Tex.Rev. Civ.Stat.Ann. In a supplemental pleading, the plaintiff attached a certified copy of the original petition which had been filed in the divorce proceeding. This instrument bears the defendant’s signature and contains the following recitation:

“ATTORNEY’S FEES
Petitioner states that it was necessary to secure the services of W. C. (BILL) SHEAD a practicing attorney of Harris County, Texas, to preserve and protect Petitioner’s rights and Respondent should be ordered to pay a reasonable attorney’s fee and judgment should be rendered in favor of this attorney and against said Respondent.”

The test to be applied in determining whether an instrument constitutes a contract in writing within the meaning of the statute is whether the instrument itself contains “a contract to do the thing for the nonperformance of which the action is brought”. Cowart v. Russell, 135 Tex. 562, 144 S.W.2d 249 (1940). The instrument need not contain an express promise to do all the things for the non-performance of which the action is brought, but it must be shown that the obligation “grows out of the written instrument, not remotely, but immediately” or that the written instrument acknowledges a state of facts “from which, by fair implication, the obligation or liability arises”. International Printing Pressmen and Assistants’ Union v. Smith, 145 Tex. 399, 198 S.W.2d 729, 736 (1946).

A contract which rests, at least in major part, upon parol evidence must be construed as an oral contract insofar as determining the applicability of the statute of limitations. Teneha Oil Co. v. Blount, 368 S.W.2d 655 (Tex.Civ.App.—Beaumont 1963, no writ). The written instrument relied upon by the plaintiff represents, at most, an acknowledgment by the defendant of a prior employment agreement. It contains no promise by the defendant to pay the plaintiff for legal services rendered, and its obvious purpose is to require the defendant’s former husband to pay the plaintiff’s fees. It cannot be said to constitute “a contract to do the thing for the nonperformance of which the action is brought.”

The four year statute of limitations now applies to suits on sworn accounts. Ideal Builders Hardware Co. v. Cross Construction Co., 491 S.W.2d 228 (Tex.Civ.App.-Houston [1st Dist.] 1972, no writ); Wilson v. Browning Arms Co., 501 S.W.2d 705 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d). However, this statute is applicable to the sale of goods, not to contracts for the furnishing of services. Potts v. W. Q. Richards Memorial Hospital, 558 S.W.2d 939, 946 (Tex.Civ.App.—Amarillo 1977, no writ). Thus, the four year limitation period of Section 2.725, Tex.Bus. & Comm.Code Ann., is inapplicable to the facts of the case at bar.

In an unsworn pleading entitled Second Supplemental Opposition to Motion for Summary Judgment, the plaintiff alleged that he had good reason to believe and did believe that the defendant “was physically outside the territorial limits of the State of Texas for such time as would have tolled the two year statute of limitations as involved in the facts of this case”, and that “the defendant had not negatived the tolling of the two year statute as contemplated by Article 5537, V.T.C.S.” The plaintiff contends that the summary judgment was erroneously granted because this pleading raised the issue of whether the defendant was out of the state for a sufficient time to toll the statute of limitations.

When a summary judgment is sought on the basis that the statute of limitations has run, the movant must conclusively establish the bar of limitations, and where the non-movant interposes a suspension statute such as Article 5537, the burden is upon the movant to negate the applicability of that issue. Zale Corp. v. Rosenbaum, 520 S.W.2d 889 (Tex.1975); Oram v. General American Oil Co., 513 S.W.2d 533, 534 (Tex.1974).

In the case at bar, the defendant failed to offer competent summary judgment proof showing the inapplicability of Article 5537, and thus failed to meet its burden of establishing, as a matter of law, that the plaintiff’s cause of action was barred by the statute of limitations.

The judgment of the trial court is reversed and the cause is remanded.


author: AKIN, Justice.

text:
    GRAYSON FIRE EXTINGUISHER CO., INC. and Homer Noel Wright, Jr., Appellants, v. Charlotte JACKSON, Appellee.
    No. 19499.
    Court of Civil Appeals of Texas, Dallas.
    April 10, 1978.
    Rehearing Denied May 2, 1978.

      Winston L. Borum, Gardere, Porter & DeHay, Dallas, for appellants.
    Roger D. Sanders, Jarvis, Grisham, Sanders, Emerson & Fry, Sherman, for appellee.
   AKIN, Justice.

This is a writ of error attacking a default judgment. The sole ground asserted by appellants is that the appellee failed to timely comply with Tex.R.Civ.P. 239a (Vernon 1976) with respect to furnishing the court’s clerk with the defaulting defendants last known address so that the clerk could send defendants a copy of the default judgment, and therefore deprived defendants of an opportunity to timely file a motion for new trial. In this respect, appellants contend that Rule 239a is mandatory and that a failure to comply timely with that rule constitutes reversible error. We cannot agree. Accordingly, we affirm.

Appellee Jackson sought recovery for personal injuries and property damage sustained in an automobile collision with appellant Wright while he was acting within the course and scope of his employment with appellant Grayson Fire. Citations were properly issued, and, when appellants failed to timely appear and answer, a default judgment was rendered against them on April 15, 1977. On June 1, 1977, forty-seven days later, appellee filed with the court a written certificate stating the last known mailing address of appellant, Gray-son Fire, but no certificate was filed giving Homer Wright’s last known mailing address. The record shows that default notice was sent on June 1, 1977 to Grayson Fire. Appellants argue that the failure of appel-lee to file the written certificate required by Rule 239a, Tex.R.Civ.P. and the trial court clerk’s failure to timely send appellants the notice of default judgment as required by Rule 239a, Tex.R.Civ.P. deprived appellants of the opportunity to timely file a motion to set aside the default and obtain a new trial under the more lenient standards for motion for new trial set forth in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939). They urge that, in effect, the incentive of plaintiffs would be not to comply with Rule 239a and thereby relegate defaulting defendants to the stricter standards required in a bill of review. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). We cannot agree that, even if mandatory, this is a ground for reversal in a writ of error. On writ of error, an appellant is limited to showing the invalidity of the judgment by the papers on file in the case. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710-11 (1961). Since the judgment on its face here is not invalid and, in fact, appellants do not assert that the judgment is invalid on the face of the record, we hold that this avenue of attack on the judgment is not available.

Appellants suggest, however, that such a holding would render Rule 239a meaningless. We cannot agree. Rule 239a provides:

At or immediately prior to the time an interlocutory or final default judgment is rendered, the party taking same or his attorney shall certify to the clerk in writing the last known mailing address of the party against whom judgment is taken . Immediately upon the signing of the judgment, the clerk shall mail a postcard notice thereof to the party against whom the judgment was rendered at the address shown in the certificate, and note the fact of such mailing of the docket . . Failure to comply with the provision of this rule shall not affect the finality of the judgment. [Emphasis added]

As we read this rule, it was designed primarily as an administrative convenience for the parties and while the requirements may be mandatory, the failure to comply with this rule is not reversible error. Essentially, appellants are seeking to reverse a judgment valid on the record because of something occurring after the judgment was rendered. This we cannot sanction. Indeed, Rule 239a specifically provides that failure to comply with its provisions shall not affect the finality of the judgment.

Our question then is what penalty attaches for failure to comply with the rule? The obvious intent of the rule is to require that immediate notice of the default be sent to the defaulting defendant so that he may timely challenge the default before the trial court loses jurisdiction. The rule is not rendered meaningless, as appellants suggest, by denying them the right to reversal on writ of error. Their remedy is to file a bill of review, and to set up lack of notice of the judgment as one of the grounds. Under Alexander v. Hagedorn, supra, they must “allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which [they were] prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of [their] own.” Id., 226 S.W.2d 998. In Lee v. Thomas, 534 S.W.2d 422, 427 (Tex.Civ.App.—Waco 1976, writ ref’d n.r.e.), the court held on an appeal from a bill of review that where an appellee knowingly gave the clerk a wrong address, it amounted to fraud and thus established the second element of the Hagedorn requirements. Similarly, in Kelly Moore Paint Co. v. Northeast National Bank of Fort Worth, 426 S.W.2d 591 (Tex.Civ.App.—Fort Worth 1968, no writ), the court held in a bill of review appeal that where the clerk of the court, through no fault on the part of plaintiff, failed to send the rule 239a notice, the plaintiff had satisfied the latter two requirements of Hagedorn for a bill of review. Thus, failure of the plaintiff to certify the address and the consequent failure of the clerk to send the notice would be highly important circumstances which would afford ground for relief from the judgment if the defendant is able to establish that he has a meritorious defense. Hanks v. Rosser, 378 S.W.2d 31, 34 (Tex.1964). We hold, however, that these are not in themselves grounds for reversal.