author: HALL, Justice.

text:
    Irene CARL, Appellant, v. SOUTH SAN ANTONIO INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 5820.
    Court of Civil Appeals of Texas, Waco.
    Jan. 12, 1978.
    Rehearing Denied Feb. 2, 1978.

      Craig L. Austin, Steven R. Wolfson, San Antonio, for appellant.
    Robert S. Bambace, Randall N. Finley, Joe P. Martin, Fulbright & Jaworski, Houston, for appellee.
   HALL, Justice.

Appellant, Mrs. Irene Carl, was employed on one-year-term contracts as a classroom teacher by appellee, South San Antonio Independent School District, from September, 1968, through the 1975-1976 school year ending May 29,1976. Her contract was not renewed for the 1976-1977 school year. She brought this suit against District asserting that her contract is a “continuing contract” within the provisions of V.T.C.A., Education Code § 13.101 et seq., terminable only under those statutes for causes which do not exist. Alternatively, she pleaded an implied renewal of her contract for 1976-1977 based upon an alleged failure by District to finally terminate her until September, 1976. District’s answer was a general denial. After a trial before the court without a jury, a take-nothing judgment was rendered against appellant. We affirm the judgment.

Findings of fact were neither requested nor filed. We presume therefore that all necessary fact-findings were made by the trial court in support of its judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950).

V.T.C.A., Education Code §§ 13.101 et seq. contain these pertinent provisions:

“§ 13.101. Probationary or Continuing Contract. Each teacher hereafter employed by any school district in this state shall be employed under, and shall receive from such district, a contract that is either a ‘probationary contract’ or a ‘continuing contract’ in accordance with the provisions of this subchapter if the school board chooses to offer such teacher a ‘probationary contract’ or a ‘continuing contract.’ All such contracts shall be in writing, in such form as may be promulgated by or approved by the commissioner of education, and shall embody the terms and conditions of employment hereinafter set forth, and such other provisions not inconsistent with this sub-chapter as may be appropriate.
“§ 13.102. Probationary Contract. Any person who is employed as a teacher by any school district for the first time, or who has not been employed by such district for three consecutive school years subsequent to August 28, 1967, shall be employed under a ‘probationary contract,’ which shall be for a fixed term as therein stated; provided, that no such contract shall be for a term exceeding three school years beginning on September 1 next ensuing from the making of such contract; and provided further that no such contract shall be made which extends the probationary contract period beyond the end of the third consecutive school year of such teacher’s employment by the school district, unless the board of trustees determines and recites that it is in doubt whether the particular teacher should be given a continuing contract, in which event a probationary contract may be made with such teacher for a term ending with the fourth consecutive school year of such teacher’s employment with the school district, at which time the employment of such teacher by such school district shall be terminated, or such teacher shall be employed under a continuing contract as hereinafter provided.
“§ 13.108. Probationary Contract: Termination. The board of trustees of any school district may terminate the employment of any teacher holding a probationary contract at the end of the contract period, if in their judgment the best interests of the school district will be served thereby; provided, that notice of intention to terminate the employment shall be given by the board of trustees to the teacher on or before April 1, preceding the end of the employment term fixed in the contract. In event of failure to give such notice of intention to terminate within the time above specified, the board of trustees shall thereby elect to employ such probationary teacher in the same capacity, and under probationary contract status for the succeeding school year if the teacher has been employed by such district for less than three successive school years, or in a continuing contract position if such teacher has been employed during three consecutive school years.
“§ 13.106. Continuing contract. Any teacher employed by a school district who is performing his third, or where permitted fourth, consecutive year of service with the district under probationary contract, and who is elected to employment by the board of trustees of such district for the succeeding year, shall be notified in writing of his election to continuing contract status with such district, and such teacher shall within 30 days after such notification file with the board of trustees of the employing school district notification in writing of his acceptance of the continuing contract, beginning with the school year following the conclusion of his period of probationary contract employment. Failure of the teacher to accept the contract within such 30 day period shall be considered a refusal on the part of the teacher to accept the contract.
“§ 13.107. Status Under Continuing Contract. Each teacher with whom a continuing contract has been made as herein provided shall be entitled to continue in his position or a position with the school district, at a salary authorized by the board of trustees of said district complying with the minimum salary provisions of the foundation aid law, for future school years without the necessity for annual nomination or reappointment, until such time as the person:
(1) resigns, or retires under the teacher retirement system;
(2) is released from employment by the school district at the end of a school year because of necessary reduction of personnel as herein defined;
(3) is discharged for lawful cause, as defined in Section 13.109 of this code and in accordance with the procedures hereinafter provided;
(4) is dismissed at the end of a school year for any reason as set out in Section 13.110 of this code and pursuant to the procedures hereinafter provided in such cases; or
(5) is returned to probationary status, as authorized in Section 13.110 of this code.”

Appellant reasons that under these statutes she was on a probationary status with District for a term of either three or four years, and that her contract has since been a continuing contract, renewed each year, and subject to termination only for the reasons provided in the statutes.

As set forth in § 13.101, a teacher is entitled to and receives the benefits of these statutes only “if the school board chooses to offer such teacher a ‘probationary contract’ or a ‘continuing contract.’ ” In other words, a school district may choose at its discretion whether to contract with its teachers under the provisions of these statutes, or whether to contract with them for a fixed term under the provisions of § 23.28 (independent school districts) or § 22.09 (common school districts) of the Education Code. These latter statutes expressly provide for their application unless the district in question “has adopted the provisions of the continuing contract law as set out in [§§ 13.101 et seq.].” See also, Hix v. Tuloso-Midway Independent School District, 489 S.W.2d 706, 709 (Tex.Civ.App.-Corpus Christi 1973, writ ref’d n. r. e.); Garcia v. Pharr, San Juan, Alamo Independent School District, 513 S.W.2d 636, 640 (Tex.Civ.App. — Corpus Christi 1974, writ ref’d n. r. e.); and King v. Board of Trustees, Monahans-Wickett-Pyote Independent School District, 555 S.W.2d 925, 927 (Tex.Civ.App. — El Paso 1977, no writ). In all of these cases, it was recognized that the adoption of the teacher tenure contract provisions set forth in § 13.101 et seq. was discretionary with the school district. We hold it is discretionary.

Our record shows without contradiction that appellee District has never adopted these provisions, and that it has contracted with appellant solely under the provisions of § 23.28 by annual-term contracts. Appellant’s claim of a continuing contract is accordingly rejected.

Appellant argues that to allow a discretionary application of the continuing contract law creates a scheme of classification of teachers without rational legislative purpose which results in some teachers in Texas receiving the benefits of a tenure system and other teachers not receiving those benefits, and accordingly violates the equal protection guarantees of our State and Federal Constitutions. We reject those arguments.

The discretionary provision in § 13.-101 simply confers on school districts the power to determine whether or not in their local self government they will offer tenure contracts to their teachers. In doing this it does not create a classification system cognizable under the equal protection provisions of the constitutions. The Equal Protection Clause relates to equality of persons as such, rather than between areas, and territorial uniformity is not a constitutional prerequisite. McGowan v. Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 1106, 6 L.Ed.2d 393, 400 (1961).

In any event, granting appellant’s premise of teacher classification in § 13.101, a statutory discrimination will not be held in contravention of equal protection guarantees “if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399 (1961). The obvious purpose underlying the grant of right to school districts to accept or reject the limited tenure system created in § 13.101 et seq. was the continuance of the Legislature’s policy of local control of public education in Texas. This purpose can hardly be classed as unreasonable and irrational. Local control of public education in our State was expressly recognized by the U.S. Supreme Court in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 53, 93 S.Ct. 1278, 1306, 36 L.Ed.2d 16 (1973) where the Court said, “It cannot be seriously doubted that in Texas education remains largely a local function, and that the preponderating bulk of all decisions affecting the schools is made and executed at the local level, guaranteeing the greatest participation by those most directly concerned.”

Appellant assigns other reasons why she says the discretionary clause in § 13.101 is invalid, but they too are without merit and are overruled.

District’s Rules and Regulations provide that the reelection or not of teachers for the coming school year shall be done in March. The final authority for this decision is vested in District’s Board of Trustees. The record shows that in early March of each year the members of District’s administrative staff (composed of the superintendent, the assistant superintendent who is also District’s personnel officer, and the school principals) evaluate the teachers, determine which shall be recommended for re-election, notify the teachers of their recommendations, and then carry the recommendations to the Board of Trustees for action at the March meeting. After action by the Board of Trustees, contracts are delivered to the teachers who have been re-elected. These contracts must be executed and returned by the teachers by the end of the school year in progress.

Summarized, the evidence shows that because of unsatisfactory performance by appellant in several particulars she was notified on March 11, 1976, that she would not be recommended to the Board of Trustees for re-election for 1976-1977. Nevertheless, she was accorded a hearing by the staff the next day after which it was decided to withhold final recommendation on her contract pending evaluation of hér performance for the remainder of the school year. This decision was carried to the Board of Trustees who followed the staff’s decision, as reflected in the minutes of the Board meeting on March 15, 1976, that the question of appellant’s re-election would be “[held] for further evaluation.” In April, appellant employed legal counsel and began negotiating through him with the staff for renewal of her contract. Appellant was told by the staff again in May that she would not be recommended for re-election. However, at the instance of her attorney, negotiations continued into the summer and included demands by appellant for further evaluation of her performance and that her contract be “reinstated.” They ended in a hearing on appellant’s behalf by the Board of Trustees on August 30,1976, after which appellant was notified on September 1st that her contract was not renewed. During all of this time a contract was never tendered to appellant by District.

Without detailing all of the proof, we are of the view it supports implied findings that appellant acquiesced in the staff’s delayed decision on her contract until the end of the school year; and that she knew at that time that she would not be recommended for re-election by the staff and that her contract probably would not be renewed; and that the delay in final action by District was an accommodation to appellant. In other words, the record does not conclusively establish an implied renewal of appellant’s contract or work an estoppel against District.

Appellant’s points and contentions are overruled. The judgment is affirmed.


source: Caselaw Access Project

author: SPURLOCK, Justice.

license: Public Domain

text:
    Ada Louise WOMACK, Appellant, v. Jeannette Katherine WORTHINGTON et al., Appellees.
    No. 17920.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 12, 1978.
    Rehearing Denied Feb. 23, 1978.

      Callaway & Marshall and Clyde M. Marshall, Jr., Fort Worth, for appellant.
    McGown, Godfrey, Decker, McMackin, Shipman & McClane, and Warren W. Ship-man III, Fort Worth, for appellee Worth-ington.
    McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk, and Atwood McDonald, Fort Worth, for appellee Bogge-man.
   OPINION

SPURLOCK, Justice.

This is a summary judgment case. Appellant filed suit against her two sisters seeking to establish that an oral family settlement agreement had been entered into some thirteen years before their father’s death, whereby the three sisters allegedly agreed that if their father died leaving a will that gave preference to any of them, they would divide their father’s estate among themselves in equal shares. At the time of the father’s death, a large portion of his estate consisted of real estate. Upon his death, the father’s will left all of his property to one of his daughters.

Appellee moved for summary judgment, because (inter alia) the alleged oral family settlement agreement violated the Statute of Frauds, since a large portion of the father’s estate consisted of real property. From the trial court’s granting of movant’s motion for summary judgment, appellant has perfected her appeal.

We affirm the judgment of the trial court.

Decedent had three daughters: Ada Louise Womack (appellant), Jeannette (Jackie) Katherine Worthington (appellee) and Mary Alice Boggeman. At times, they will be referred to as Ada, Jackie, and Mary. After decedent’s death, an application to probate decedent’s will was filed on December 15, 1971. Under the terms of decedent’s will, Jackie was the sole beneficiary of her father’s estate. Ada filed a will contest, based upon allegations that decedent lacked testamentary capacity and was unduly influenced in the execution of his will. After a trial in the county court of Jack County in December of 1972, the will was admitted to probate. Ada appealed, and a trial de novo was held before a jury in the district court of Jack County in April, 1975. Upon the jury’s findings that decedent had possessed testamentary capacity and had not been unduly influenced, the district court rendered judgment on the jury’s verdict. In an unpublished opinion, this court of civil appeals affirmed the judgment of the district court. Ada’s application for writ of error in the Texas supreme court was “ref’d n. r. e.”

On December 7, 1973, while the will contest appeal was pending in the district court, Ada filed this suit against Jackie and Mary, alleging that she (Ada) was entitled to one-third of decedent’s estate, because of an alleged oral agreement made by her and her two sisters prior to October, 1958. Ada claims that the three sisters orally agreed thirteen years before their father’s death that they would share in decedent’s estate equally, regardless of the eventual disposition of the estate under their father’s will. It is Ada’s contention that the alleged oral agreement is enforceable as a family settlement.

In their answers filed in this case, both Jackie and Mary have denied that any such oral agreement was ever made. Also, in her answers to interrogatories, Mary has denied the existence of the alleged oral agreement.

In her motion for summary judgment, Jackie contended that she was entitled to judgment as a matter of law, because (inter alia) any such alleged oral agreement is barred by the Statute of Frauds. The trial court granted Jackie’s motion for summary judgment.

By her three points of error, Ada basically contends that the trial court erred in rendering summary judgment that she take nothing.

Tex.R.Civ.P. 166-A(c) provides in part that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Emphasis added.)

The purpose of the summary judgment rule is to provide a method of summarily terminating a case when there is only a question of law involved and there is no genuine issue of a material fact. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962).

It is undisputed that the alleged settlement agreement, if any, was oral rather than written. At the outset, we are confronted with the question of whether the alleged oral agreement was unenforceable under the statute of frauds, since a large portion of the estate consisted of real property.

In Texas, the Statute of Frauds, which is found in Tex.Bus. & Comm.Code Ann. § 26.01 (1968), provides in part that:

“(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be chárged with the promise or agreement or by someone lawfully authorized to sign for him.
(b) Subsection (a) of this section applies to
(4) a contract for the sale of real estate;
(5) a lease of real estate for a term longer than one year;
(6) an agreement which is not to be performed within one year from the date of making the agreement; . . .”

In Manning v. Sammons, 418 S.W.2d 362 (Tex.Civ.App. — Fort Worth 1967, writ ref’d n. r. e.), the plaintiff claimed a one-fourth interest in the decedent’s estate under two oral agreements. First, plaintiff alleged an oral agreement between testatrix and her that she would leave plaintiff one-fourth of her estate, upon her (plaintiff’s) promise to use the income therefrom to support her (plaintiff’s) parents during their lifetime. This court, speaking through Chief Justice Frank A. Massey, held that this agreement violated the Statute of Frauds, and further wrote:

“[Tjhere is no written instrument which constitutes, refers to, or mentions a contract of any sort, nor can a contract be created by construction. The alleged contract would be unenforceable under the State [(sic)] of Frauds (which was plead) in any event for lack of a written memorandum, since real property is involved. (Citing cases.)” Id. at 336-367. (Emphasis added.)

In Manning, the plaintiff further contended that an oral agreement had been made between defendant and her (who was the sole beneficiary of decedent’s will), that the will would be probated, but that she (plaintiff) would receive one-fourth of the testatrix’s estate. On this point, this court held that the plaintiff’s claim failed because there was no writing to evidence the agreement. Id. at 367.

In Mueller v. Banks, 300 S.W.2d 762 (Tex.Civ.App. — San Antonio 1957, writ ref’d n. r. e.), the decedent’s son brought suit to recover his late father’s estate, based upon an alleged oral agreement between his parents and him that all property belonging to the parents at their death would belong to him, in consideration of his working for and with his parents in the grain business. Because the estate consisted of both real and personal property, the San Antonio court of civil appeals held that the alleged agreement violated the Statute of Frauds. The court wrote:

“The law is well settled in this State that a parol contract such as this, involving both real personal property, which is indivisible, is void as to both and cannot be enforced as to either. . . .” Id. at 764. (Emphasis added.)

In Barrow v. Webb, 208 S.W.2d 157 (Tex.Civ.App. — Eastland 1948, no writ), plaintiffs entered into an oral agreement with decedent’s second wife and defendant (a daughter of decedent’s wife by a previous marriage) providing that plaintiffs would not contest the decedent’s will, if decedent’s widow would leave the property at her death in equal shares to plaintiffs and defendant. When the second wife died, her will left all the property to the defendant. The Eastland court of civil appeals held that plaintiffs could not recover a portion of the property, because the oral agreement violated the Statute of Frauds.

In the case at bar, we hold that the alleged oral family settlement agreement was unenforceable, because it violated the Statute of Frauds. .

Since there is a dispute as to whether there was any settlement agreement at all, did this preclude the granting of a summary judgment? Ada does not assert that the alleged family settlement agreement was in written form; rather, she contends that it was an oral agreement. Jackie and Mary, on the other hand, deny the existence of the alleged oral agreement. Accordingly, whether the alleged oral agreement was made in fact is not a material issue of fact, because even if the alleged oral agreement was entered into, it was unenforceable as a matter of law, because it violated the Statute of Frauds. As such, the dispute as to whether there was an agreement made did not preclude the granting of a summary judgment, because that dispute did not involve a material issue of fact.

In an attempt to defeat the application of the Statute of Frauds, appellant contends that under the doctrine of partial performance, she has performed all that she was obligated to do under the agreement, which was to move from the family ranch in the interest of harmony Also, she contends that the doctrine of equitable estoppel will take this case out of the operation of the Statute of Frauds. In rejecting these contentions, we note with approval the following language from our supreme court’s opinion in Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921),

“From an early time it has been the rule of this court, steadily adhered to, that to relieve a parol sale of land from the operation of the Statute of Frauds, three things were necessary: 1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced. Payment of the consideration, though it be a payment in full, is not sufficient. . Nor is possession of the premises by the vendee. . . . Each of these three elements is indispensable, and they must all exist.”

Appellant also attempts to defeat the application of the Statute of Frauds through use of the doctrine of promissory estoppel.

Texas has adopted the position that promissory estoppel may not be used to avoid the Statute of Frauds in such a manner as to frustrate the basic policy of the statute. Cooper Petroleum Co. v. LaGloria Oil and Gas Co., 436 S.W.2d 889 (Tex.1969). Recognizing that promissory estoppel may operate in one instance to preclude a defense based on the Statute of Frauds, our supreme court in “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934, 937 (Tex.1972), quoted with approval the following language from the Restatement, Contracts § 178, comment f:

“ ‘Though there has been no satisfaction of the Statute, an estoppel may preclude objection on that ground in the same way that objection to the non-existence of other facts essential for the establishment of a right or a defence (sic) may be precluded. A misrepresentation that there has been such satisfaction if substantial action is taken in reliance on the representation, precluded proof by the party who made the representation that it was false; and a promise to make a memorandum, if similarly [(sic)] relied on, may give rise to an effective promissory estoppel if the Statute would otherwise operate to defraud.’ ” (Emphasis theirs.)

See Annot., 56 A.L.R.3d 1037 (1974) for an excellent article entitled “Statute of Frauds — Promissory Estoppel”.

In the case at bar, it is not alleged that there was ever any agreement to reduce the alleged family settlement agreement to writing. In the absence of such an agreement, the doctrine of promissory estoppel will not defeat the application of the Statute of Frauds in this case.

The alleged family settlement agreement in this case is unusual in that it allegedly was entered into prior to the decedent’s death. In her brief, appellant contends that such a pre-death agreement is valid. Since we have not been squarely confronted with this question for decision, we decline to express an opinion thereon at this time.

We overrule all of appellant’s points of error; the judgment of the trial court is affirmed.


author: McKAY, Justice.

text:
    Amanda HOGG, Appellant, v. Jeff JAECKLE et al., Appellees.
    No. 1090.
    Court of Civil Appeals of Texas, Tyler.
    Jan. 12, 1978.
    Rehearing Denied Feb. 23, 1978.

      Bill M. Glaspy, Mesquite, for appellant.
    Richard Martin, Chancellor & Wood, Dallas, for appellees.
   McKAY, Justice.

This is a suit by former lessees to recover a security deposit paid to an owner of a rented house together with treble damages and reasonable attorney’s fees. Trial was before the court, and judgment was rendered for appellees for $2,500.00, such sum being treble damages in the amount of $1,500.00, a statutory penalty of $100.00, and attorney’s fees of $900.00.

Jeff Jaeckle, Richard Kohlmeyer, Tom Dodd, Randy Moore and Jim Schermerhorn, appellees, brought suit against Amanda Hogg, appellant, alleging that they had entered into a written lease with appellant for leasing a house; that each of them made a security deposit of $100.00 with appellant; that the full rental due for the term of the lease of the house had been paid; that they had notified appellant they would vacate the leased premises on or before the expiration date of the lease; that appellant accordingly accepted possession of the premises; that each of them made demand by and through Jaeckle for the return of the security deposit, and Jaeckle gave appellant his address in writing. Appellees’ pleading asks for treble damages of $300.00 each — a total of $1,500.00, a penalty of $500.00 and reasonable attorney’s fees.

Appellant’s answer alleged that she had no contractual relationship with any of ap-pellees except Jaeckle and Dodd; that only $400.00 was paid as a security deposit; and that oral notice was given to Jaeckle and Dodd, and that written notice was given to Jaeckle, as to why they would not get their deposit returned. Appellant alleged she acted in good faith in failing to return the deposits because the damage to the house exceeded the deposits, and that her claim for damages was communicated to Jaeckle. Appellant also filed a cross-action for the damages she alleged exceeded the security deposits.

As noted above, the trial court rendered judgment for appellees for $2,500.00 — treble damages totaling $1,500.00, a statutory penalty of $100.00 and a $900.00 attorney’s fee. The trial court made findings of fact and conclusions of law as follows:

“FINDINGS OF FACT
“1. This action was instituted by five former tenants against their former landlord seeking return of security deposits, treble damages and attorney fees.
“2. Acting on behalf of the other tenants, Plaintiffs Dodd and Jaeckle signed the lease agreement with Defendant and an initial $400.00 security deposit was paid.
“3. Subsequent to the signing of the lease, one of Plaintiffs moved out of the premises, another moved in, and an additional $100.00 was paid as a security deposit for a total deposit of $500.00.
“4. Each tenant moved into the premises with the knowledge and consent of the landlord.
“5. When Plaintiffs quit the premises Defendant was aware that Plaintiff Jaeckle was to receive any security deposit to be returned on behalf of all Plaintiffs.
“6. Defendant received in writing a forwarding address of Plaintiff Jaeckle.
“7. Defendant landlord failed to return the security deposit or any portion thereof and not until the landlord filed herein Cross-Plaintiff’s First Amended Petition with Exhibit ‘A’ attached was a written description and itemization of deductions forthcoming.
“8. With the exception of a deduction for 3 carpets having been ruined, there is a substantial variance between the contents of Exhibit ‘A’ and other listings of the landlord as to damages to the premises thereby leading to a conclusion that the landlord in fact acted in bad faith and has not overcome the statutory presumption.
“9. A reasonable attorney’s fee to be awarded herein is $900.00.
“CONCLUSIONS OF LAW
“1. Having acted in bad faith, the landlord forfeited all rights to withhold any portion of the security deposit.
“2. Tenant Plaintiffs are entitled to recover $100.00, plus treble the $500.00 security deposit and $900.00 attorney’s fees.”

Appellant’s points 1 and 2 complain that the trial court erred in finding that the total security deposits paid by appellees to appellant were $500.00 because such finding was at variance with the terms of the written lease and that there was no legally sufficient or factually sufficient evidence to support such variance. Appellant argues that evidence that there was $500.00 paid by appellees to appellant as security deposits was inadmissible and without probative force because such evidence violated the parol evidence rule. We disagree. The rental contract contained the figure $400.00 as security deposits made, while appellees testified that a total of $500.00 was paid to appellant as security deposits, the difference arising from an additional $100.00 paid after the contract was signed. The parol evidence rule does not prevent a written instrument to be later modified or changed by the parties by an oral agreement. David Berg & Co. v. Ravkind, 375 S.W.2d 317, 321 (Tex.Civ.App. — Tyler 1964, writ ref’d n. r. e.); 2 McCormick & Ray, Texas Law of Evidence, sec. 1671, p. 515 and citations thereunder.

Although points 1 and 2 appear to be multifarious, we will dispose of appellant’s contentions that there was no evidence or insufficient evidence to support the finding of the trial court that appellees paid $500.00 in security deposits. Appellee Jaeckle testified that a total of $400.00 had been paid at the time of the execution of the lease and that $100.00 had been paid later to appellant, and that the $100.00 payment was part of a check for a larger sum which he sent or delivered to appellant. In view of this evidence, we hold that there was evidence before the court which was both legally and factually sufficient for the court to find that appellees made security deposits totaling $500.00. In an action tried to the court without a jury the trial court is the trier of the facts and is the judge of the credibility of the witnesses and the weight to be given their testimony. Jones v. Young, 539 S.W.2d 901, 904 (Tex.Civ.App. — Texarkana 1976, writ ref’d n. r. e.). Appellant’s points one and two are overruled.

By her points three, four and six appellant contends that the trial court erred (1) in awarding appellees the statutory penalty and treble damages because all the evidence shows that appellant acted in good faith; (2) in holding appellant’s bad faith was presumed under Article 5236e, V.A.C.S., since she did comply with said article after receiving Jaeckle’s letter of July 14; and (3) in finding that appellees proved all the elements of their case — in particular that appellant acted in bad faith.

Article 5236e provides in part that security deposits must be refunded by the landlord to the tenant within thirty days after the tenant surrenders the premises; a tenant must give advance notice of surrender as may be required by the rental agreement, but advance notice may not be a condition for refund unless the requirement of advance notice is underlined or printed in bold print in the rental agreement; the landlord shall keep accurate records of all security deposits; if actual cause exists for retaining all or any portion of the security deposit, the landlord shall return to the tenant the balance of the deposit, if any, together with a written description and itemized list of all deductions; the burden of proving the reasonableness of such damages or charges is on the landlord; a landlord who in bad faith retains a security deposit in violation of the act is liable for $100.00 plus treble the amount of that portion of the deposit which was wrongfully withheld from the tenant and shall be liable for reasonable attorney’s fees in a suit to recover the security deposit; a landlord who in bad faith fails to provide a written description and itemized list of damages and charges as required by the act forfeits all rights to withhold any portion of the security deposit or to bring suit against the tenant for damages to the premises and is liable to the tenant for reasonable attorney’s fees in a suit to recover the security deposit; in a suit by the tenant the landlord bears the burden of proving that his retention of the security deposit or any part thereof was reasonable, and the landlord is not liable for the penalty, treble damages or attorney’s fees unless the landlord is found to have acted in bad faith; failure to return a security deposit within thirty days or failure to provide a written description and itemization of deductions within thirty days is prima facie evidence and a presumption that the landlord acted in bad faith; a tenant shall furnish the landlord with a written copy of the tenant’s forwarding address for purpose of security deposit refunding.

Appellant testified that she and Jaeckle and Dodd, together, inspected the house on May 15,1975, and that in their presence she made notes of the items of damage discovered in the inspection; that she wrote Jaeckle’s name on the list, and because she misspelled his name Jaeckle corrected the spelling and wrote his address under his name. She further testified that she mailed an itemized list of damage to the house to Jaeckle on May 22, 1975, to the address given by Jaeckle to her on May 15, 1975. Jaeckle testified he never received the list. On June 17, 1975, appellant received a letter from an attorney, Patrick A. Teeling, demanding return of the security deposits of $500.00, and appellant then contacted and employed counsel to represent her. She testified that her lawyer, Bill Glaspy, talked with Teeling by telephone in her presence, and she understood Glaspy would send an itemized damage list to Teel-ing. Glaspy testified he gave Teeling by telephone a statement of the damages claimed by appellant, and that Teeling was to call him back but never did. This suit was filed on October 23,1975, by counsel to whom Teeling had referred the case, together with his file. After suit was filed appellant furnished an itemized list of damages by attaching such list to her cross-action.

This being a trial before the court the trial court was the trier of the facts, was the judge of the credibility of the witnesses and the weight to be given their testimony, and, therefore, the trial judge could believe or disbelieve any witness. Whether points three, four and six were intended as no evidence points or insufficient evidence points, we overrule them. There is some evidence to support the findings of the trial court that appellant acted in bad faith under the record and the language of Article 5236e, and we hold the evidence is factually sufficient. “Bad Faith” has been defined as a breach of faith; willful failure to respond to plain, well understood statutory or contractual obligations; lack of good faith; improper motive. 5 Words and Phrases “Bad Faith” p. 14 et seq.; Black’s Law Dictionary, Revised 4th Edition. Points 3, 4 and 6 are overruled.

By her point five appellant maintains that the trial court erred in not giving her credit for the damages proved by her cross-action. The trial court having found that appellant acted in bad faith in failing to provide a written description and itemized list of damages, section 4(b) of Article 5236e would cause appellant to forfeit her right to withhold any portion of the security deposit or to bring suit against the tenant for damages, and would make her liable for reasonable attorney’s fees for the tenant who brings suit to recover the security deposit. This point is overruled.

Judgment of the trial court is affirmed.


author: ROBERTSON, Justice.

text:
    Ex parte Clarence Wayne LINDSEY.
    No. 19508.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 12, 1978.

      Paul Banner, Greenville, for appellant.
    Robert L. Scott, Greenville, for appellee.
   ROBERTSON, Justice.

In this habeas corpus proceeding under Article 1824a of the Texas Revised Civil Statutes, Clarence Wayne Lindsey, relator, seeks discharge from the custody of the sheriff of Hunt County. He was detained pursuant to a commitment order issued by the Judge of the 196th Judicial District Court, who found relator in contempt for failing to pay child support. We admitted relator to bail, and because he had no counsel at the original hearing, suggested that he seek rehearing of the matter with assistance of counsel. After rehearing, the trial court refused to modify its order. We now deny relator’s application for habeas corpus, and remand him to the custody of the sheriff.

This case presents two basic issues. We must first decide whether relator has conclusively shown his inability to purge the contempt by paying the delinquent support. If we conclude that he has not, we must then decide whether the nature of the proceedings at the original contempt hearing deprived relator of his constitutional right to due process of law.

Inability to Pay

Relator asserts that the record of the two hearings in this case demonstrates his inability to pay the delinquent support. We recognize that where a person cannot perform the act necessary to purge the contempt, indefinite imprisonment cannot be imposed for nonperformance; Ex parte Ramzy, 424 S.W.2d 220 (Tex.1968); Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953), however, before habeas corpus relief will issue, the relator must conclusively establish that he has no source from which he might be expected to obtain the arrearage. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967); Ex parte Hennig, 559 S.W.2d 401 (Tex.Civ.App. — Dallas 1977); Ex parte Hart, 524 S.W.2d 365, 366 (Tex.Civ.App.— Dallas 1975, no writ). In Ex parte Hennig, supra, we held that the relator must show not only that he lacks the financial resources to pay the delinquency, but also that he knows of no source from which the sum might be obtained. This ultimate fact can be established by proof of the following:

(1) that the relator lacks sufficient personal or real property which could be sold or mortgaged to raise the needed sum; and
(2) that the relator has unsuccessfully attempted to borrow the sum from financial institutions such as banks, credit unions, and loan companies; and
(3) that the relator knows of no other source, including relatives, from whom the sum could be borrowed or otherwise secured.

Ex parte Hennig, supra; see Ex parte Rohleder, supra, 424 S.W.2d at 892; Ex parte Hart, supra, 524 S.W.2d at 366. Each of these elements must be supported with specific proof.

In the present case, we conclude that relator has not met his burden to conclusively show his inability to pay. Relator has accumulated new assets since the support order was entered, including substantial real property and a 1977 Dodge van. He holds the title to these properties in his own name. Although he asserts that if these assets were sold, he would be obligated to repay his present wife certain amounts of money, no evidence of a legally binding agreement to that effect was introduced at either hearing. No mortgages or liens on the properties are held in his present wife’s name. He owns interests in some horses, but has made no effort to sell them or any other items of his personalty to pay the delinquent sum. Relator is employed and earns approximately $150 per week; however, he testified that all of this money was spent for his present wife, his present wife’s children, and his clothing. He further testified that his paycheck is often spent for leisure purposes, and admitted that he and his wife recently took a trip to a horse sale in Oklahoma where he spent an entire week’s wages.

Further, there is no evidence that relator has attempted to borrow funds. He testified that he had made no attempt to borrow or otherwise secure any money from banks, financial institutions, or his employer in the last twelve months. Although relator explained that he believed no relative would assist in raising the needed funds, he further stated that he had not asked for help from any relatives or friends in the past year. Under this showing, we must conclude that relator has not met his burden of proving his inability to pay the delinquent support.

Due Process

Relator next alleges that his detention is void for a lack of constitutional due process. This argument is based upon three theories; first, relator argues that he was not given the ten day notice required by section 14.09 of the Texas Family Code prior to the original contempt hearing; second, he argues that he was not afforded his constitutional right to counsel at the original hearing; finally, he contends that the clerk’s testimony regarding the delinquent sum was un-sworn, and that an order based upon such testimony is void.

Despite relator’s arguments, we need not decide the questions of notice and right to counsel, for these alleged errors were cured when a second hearing was held before the trial court after we admitted relator to bail. We suggested a rehearing of relator’s contempt commitment because relator’s affidavit stated that he was unable to pay the arrearage, but it appeared that, due to notice problems and lack of counsel, the facts concerning relator’s ability to pay had not been fully developed. Although we recognize the general rule that precludes a trial court from issuing orders in conflict with our exercise of habeas corpus jurisdiction, Ex parte Spencer, 508 S.W.2d 698, 700 (Tex.Civ.App. — Texarkana 1974, no writ), this rule does not prohibit rehearing of the commitment matter in the trial court if the rehearing is designed to modify or vacate the order against which habeas corpus relief is sought. Habeas corpus is a collateral attack upon an existing order of commitment, Ex parte Nix, 149 Tex. 267, 231 S.W.2d 411 (1950), and as such is independent of the trial court’s continuing jurisdiction over its order after rendition. While a direct attack on the order by motion in the trial court invokes the court’s power to modify or vacate its judgment, see Lipscomb v. Lofland, 141 S.W.2d 983 (Tex.Civ.App. — Amarillo 1940, writ dism’d, judgment cor.), collateral attack by habeas corpus in this court invokes a very limited jurisdiction, namely, to decide whether the trial court’s order is void. Ex parte Ramzy, 424 S.W.2d 220 (Tex.1968). The trial court cannot order relator back to jail while he is free on bail granted by this court; however, the trial court retains authority to exercise its general power to modify or vacate its orders in any manner that does not conflict with our limited habeas corpus jurisdiction. In other words, while invocation of our habeas corpus jurisdiction precludes trial court enforcement of its contempt order in any manner that would interfere with our granting the habeas corpus relief sought, it does not preclude direct attack on the order by motion in the trial court, and the court may modify or vacate its order pursuant to that direct attack despite the pendency of habeas corpus proceedings in this court.

We suggested that such a direct attack be made in this case, and in accordance with our suggestion, the trial court heard further evidence. Since relator had sufficient notice and was represented by counsel at that hearing, we conclude that any irregularities of the original hearing were cured by the rehearing of the matter before the trial court. Of course, the granting of a rehearing in the trial court is discretionary with the trial judge; however, rehearings should be freely granted in circumstances where the absence of counsel may have precluded full development of the facts. Rehearing in the trial court with adequate representation is an eminently superior remedy to applying for habeas corpus relief with an insufficient record. Even if the trial court does not modify or vacate its order, relator then has a complete record for our review on application for writ of habeas corpus. Although the record indicates that there may have been some misunderstanding concerning the purpose of the second hearing, we consider the record at that hearing sufficient to show that the trial court had an opportunity to modify or vacate its former order.

Relator’s final argument is that even if any constitutional problems of lack of notice and absence of counsel were cured by the second hearing, the order is still void because the court’s determination of the delinquent sum was based upon unsworn testimony. While it is true that the court clerk was not sworn when she testified regarding the delinquent amount, relator also testified regarding the amount of his weekly payments and the date of his last payment. Even assuming that the clerk’s testimony was not competent evidence of the delinquency, the trial court could still have determined the amount from the data provided by relator’s testimony.

Accordingly, the application for writ of habeas corpus is denied, and relator is remanded to the custody of the sheriff.


text:
    David ALBERT, Appellant, v. CITY OF ADDISON, Appellee.
    No. 19438.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 18, 1978.
    Rehearing Denied Feb. 16, 1978.

      Wade Starr, Goodstein & Starr, Dallas, for appellant.
    H. Louis Nichols, Saner, Jack, Sallinger & Nichols, Dallas, for appellee.
   ROBERTSON, Justice.

David Albert sued the City of Addison, seeking a mandatory order to compel the issuance of a special use permit for the sale of alcoholic beverages for off-premises consumption. Alternatively, he sought an injunction to restrain the City from refusing to issue the permit. He alleged that the City acted arbitrarily and discriminated against him in denying the permit, and accordingly, he asserted that the refusal was a constitutionally invalid exercise of the City’s police power. The City moved for summary judgment, which was granted and Albert appeals. We affirm.

The primary issue is whether Albert, met his burden to show conclusively that the City’s refusal of his application was arbitrary and discriminatory. At the outset, we note that, a suit attacking a zoning decision as arbitrary or discriminatory is governed by the following rules:

(1) If the legislative body determines that facts or conditions exist which warrant a classification, its determination of that issue cannot be disturbed except upon a showing that there is no reasonable basis for the decision;
(2) It will be presumed, in the absence of a clear showing to the contrary, that the governing body had sufficient reason, in view of local conditions, to make the classification;
(3) If there could have existed a state of facts justifying the classification or restriction, the courts will assume that it existed;
(4) The burden of establishing discriminatory action is upon the challenging party, and any reasonable doubts regarding the validity of the classification will be resolved in favor of its validity.

City of Dallas v. Lively, 161 S.W.2d 895, 898 (Tex.Civ.App. — Dallas 1942, writ ref’d); see also City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955). These rules differ from normal summary judgment procedure; for in zoning cases, a summary judgment may not be reversed simply because the record presents a question of fact. If a fact issue exists regarding adequacy of the grounds for granting or refusing the permit, we must conclusively presume that the City exercised its discretion properly. Stearman v. City of Farmers Branch, 355 S.W.2d 541, 543 (Tex.Civ.App.-Dallas 1962, writ ref’d n. r. e.); King v. Guerra, 1 S.W.2d 373 (Tex.Civ.App. — San Antonio 1927, writ ref’d). This is an extraordinary burden, for the refused applicant must conclusively show that no issuable facts or conditions existed which would have supported the City’s decision. City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43 (1958); King v. Guerra, supra. This burden is not changed by the City’s filing of a motion for summary judgment. Stearman v. City of Farmers Branch, supra 355 S.W.2d at 543. To defeat the City’s motion, the opposing applicant must produce sufficient proof to establish his right to relief as a matter of law. Any lesser showing would merely create a fact issue, which must be resolved to support the City’s discretion. See City of Waxahachie v. Watkins, supra 275 S.W.2d at 481; City of Dallas v. Lively, supra 161 S.W.2d at 898.

In the present case, we conclude that Albert has failed to meet his burden to show conclusively that there were no issuable facts or conditions existing which justified the City’s denial of the permit. In his answer to the City’s motion for summary judgment, Albert only contended that a fact issue was raised regarding the propriety of the refusal. The answer and the supporting affidavit aver the City’s refusal to comply with a “position paper” in which, he alleges, the City set forth standards for the issuance of special use permits to interested property owners. According to his affidavit, Albert relied upon the “position paper,” constructed improvements on his property, and then applied for the special use permit. He states that upon application, he was informed that the City was not granting permits to any property located on Inwood Road, and south of Belt Line Road. He alleges that although the “position paper” made no such limitations, this zoning scheme was confirmed when Albert’s application was refused, and a permit was granted to Daryl Snaden, owner of property immediately southwest of Albert’s land, but south of Belt Line Road. Apparently, these statements are intended to support Albert’s claim of discrimination against him and the arbitrary refusal of his application in limiting such permits to a very small portion of the City. • However, this affidavit, standing alone, does not conclusively establish Albert’s right to relief. At best, the affidavit only raises a fact issue as to whether the City’s limitation of such permits to a specific area was justified, and since the City Council is deemed to have made its decision on that issue, its finding is conclusive and cannot be replaced by a subsequent judicial fact determination. Stearman v. City of Farmers Branch, supra, 355 S.W.2d at 543.

AFFIRMED.


author: BISSETT, Justice.

text:
    W. B. DUNAVANT AND COMPANY, Appellant, v. SOUTHMOST GROWERS, INC., Appellee.
    No. 1236.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 19, 1978.
    Rehearing Denied Feb. 9, 1978.

      Richard D. Davis, Johnson & Davis, Har-lingen, for appellant.
    Thomas G. Sharpe, Jr., Brownsville, for appellee.
   OPINION

BISSETT, Justice.

This is a suit to recover damages for an alleged breach of a written contract to deliver cotton. W. B. Dunavant and Company, a Texas Corporation, hereinafter called “Dunavant” sued Southmost Growers, Inc., also a Texas Corporation, hereinafter referred to as “Southmost”, in the District Court of Cameron County, Texas, for damages caused by Southmost’s failure to deliver to it the cotton produced by one Frank Otsuki from a 535 acre allotment that allegedly was included in a written contract between Southmost, as “Seller”, and Duna-vant, as “Buyer”. Trial was to a jury. All of the special issues submitted were answered favorably to Southmost. Motions for judgment non obstante veredicto and to disregard the answers of the jury to certain special issues were timely filed by Duna-vant, which were overruled by the trial court. A take nothing judgment against Dunavant was signed on January 28, 1977. Dunavant has timely perfected an appeal from the judgment.

Two questions are presented for resolution. Did Southmost contract to sell to Dunavant all of the cotton which was produced by Otsuki in 1973 from the 535 acres? If so, what is the measure of damages for Southmost’s failure to deliver such cotton to Dunavant?

In 1973, Dunavant was a cotton buyer, and Southmost operated a cotton gin in Los Fresnos, Texas. H. R. Hill was Gin Manager for the cotton gin and was also General Manager for Southmost.

The Board of Directors of Southmost met on March 13, 1973. A number of the Directors as well as other farmers who were stockholders of Southmost were present at that meeting, including Mr. Frank Otsuki, a farmer and a Director of Southmost. The matter of selling the 1973 cotton crop on an advance sale and purchase contract was discussed. Hill testified at the trial that he told those in attendance at the meeting that one of the large cotton growers in the area, who could not attend the meeting, wanted to sell his 1973 cotton production at a price of 35.5 cents per pound of lint cotton. Hill further testified:

“And after the discussion it was my impression that everyone then agreed to that, and I recorded that in the minutes. Now, I could have been wrong but that was my impression.”

The next day (March 14,1973) Hill received a telephone call from Mr. George Bennett, who, on behalf of Dunavant, offered to pay 35.5 cents per pound for 1973 cotton. Hill, in response to an inquiry by Bennett as to how many acres would be available for purchase, advised Bennett:

“I believe we will have somewhere around 4,500 acres”.

Later during the day, Hill telephoned Bennett and told him:

“We would sell”.

Dunavant then prepared a contract in duplicate, signed both copies, and sent them to Southmost. The contract is dated March 16,1973. As received by Southmost, it consisted of a single printed page with several blank spaces appearing therein. It provided that Southmost would sell to Dunavant all of the 1973 cotton production from “approximately 4500 acres” in Cameron County, Texas, at 35.5 cents per pound. Upon receipt of the duplicate copies of the contract, Hill, in his own handwriting, added the words “attached list 5,347 acres” in one of the blank spaces, and attached a one-page document, which contained the names of fourteen cotton growers and the acreage planted by each to cotton in 1973, to the contract. Hill then signed the contract “Southmost Growers Inc. by H. R. Hill, Mgr” and returned an executed copy, together with the attachment thereto, to Du-navant.

The one-page document, which Hill attached to the printed contract, was prepared by Hill. The following words appear at the very top of the document:

“I OR WE OFFER FOR SALE AND/OR AUTHORIZE SOUTHMOST GROWERS, INC. TO CONTRACT FOR THE SALE OF COTTON PRODUCED BY ME/US DURING THE 1973 GROWING SEASON, AT THE ACREAGES AND CONDITIONS STIPULATED HEREIN:”

One of the stipulated conditions therein was that the cotton was to be sold for 35.5 cents per pound. The attached document was signed by twelve of the fourteen growers therein named, either in proper person or by someone whose authority to sign for them was not questioned by any of the twelve farmers. The total acreage planted to cotton by the fourteen growers was 5,347 acres. The two growers who did not sign the document either in proper person or by duly authorized representative were Jose Almaraz, who was shown to have planted 150 acres in cotton, and Otsuki, who, according to the document, had planted 535 acres in cotton. However, their names were signed in the spaces provided for signatures “by H. R. Hill, Gin Mgr.” Hill, by way of explanation of his actions, testified:

“Frank (Otsuki) had been at the meeting, and I thought that — I was under the impression that at that time he had meant to sell his, too. So, in order to get this list on back to them (Dunavant) . I signed their names by me and sent it on back to them.”

Alvaraz delivered all of the cotton produced by him in 1973 to Dunavant and was paid the contract price of 35.5 cents therefor. Otsuki, however, refused to sell or deliver to Dunavant any of the cotton produced by him in 1973 from his 535 acres at 35.5 cents per pound. His position was that he did not authorize Southmost to sell his 1973 cotton production to anyone for 35.5 cents per pound, and did not authorize Hill to sign his name to the document. On September 25, 1973, he sold all of such production (263,420 pounds of lint cotton) to Dunavant at 65 cents per pound. Thereafter, suit was filed by Dunavant against Southmost to recover damages in the sum of $77,708.90, the difference between the reasonable value of the Otsuki cotton in Cameron County, Texas, at the time of harvest and the contract price.

Seven special issues were submitted to the jury. No one objected to the submission of those issues and no one requested the submission of any additional issues. The jury found: Southmost, by signing the contract, agreed to sell to Dunavant, and Dunavant, by signing the contract, agreed to buy from Southmost “all of the cotton produced from certain acreage during the crop year 1973” (Nos. 1 and 2); the number of acres of cotton contracted for was “4,812 acres” (No. 3); Southmost did not fail to deliver to Dunavant cotton “produced from the acreage included in the contract” (No. 4); the reasonable price per pound for cotton on September 25,1973 was “65cp per lb.” (No. 5); Southmost did not represent to Dunavant that it “had authority to sell all of the production from 535 acres of cotton grown by Frank Otsuki during the crop year 1973” (No. 6); and, Southmost did not have “any authority to sell the cotton of Frank Otsuki on or about March 16, 1973” (No. 7).

In May of 1973, Hill heard rumors that Otsuki had not sold his cotton under the contract. He looked at his copy of the contract and discovered that Otsuki had not signed the document which was attached by Hill to the contract originally sent to him by Dunavant. He called Bennett for a copy of Dunavant’s copy, which was sent to him. Upon receiving Dunavant’s copy, Hill then remembered that he had signed Otsuki’s name to the document which he attached to Dunavant’s copy. He then called Bennett and told him that he (Hill) did not “think we will have any trouble because Frank (Otsuki) was at the meeting when they agreed to sell it.” However, Hill did not discuss the matter with Otsuki at that time.

Otsuki, by letter dated June 26, 1973, advised Dunavant:

“. . . [I] was recently advised that you were under the impression that I had sold to you through Southmost Growers, Inc., cotton produced by me on approximately 530 acres of land in Cameron County, Texas.
I have at no time executed any Contract of Sale to sell cotton to you, nor have I authorized my signature on any Contract of Sale for this cotton. Mr. Ross Hill of Southmost Growers, Inc., has recently advised Mr. George Bennett of your company of these facts. . . .”

In late July, 1973, Hill received a telephone call from Bennett saying that Otsuki was trying to sell his cotton “up . in Harlingen”. By that time cotton was selling from 60 to 70 cents a pound. Hill contacted Otsuki, who told him that he had not sold his cotton. Hill reported this to Bennett.

Hill, at the request of Otsuki, wrote a letter addressed “TO WHOM IT MAY CONCERN”. This letter bears the date of May 26,1973, but Hill, when a copy thereof was introduced in evidence at the trial, testified that he wrote and signed the letter on or about July 26, 1973, and not on May 26, 1973. The letter reads:

TO WHOM IT MAY CONCERN:
This letter is to confirm the fact that Frank Otsuki did not at any time authorize me to sign his name to that offer or contract dated March 9, 1973, selling his cotton to W. B. Dunavant & Company. I was mistaken in assuming that Frank had agreed to sell his cotton to W. B. Dunavant & Company, and a review of the minutes of Southmost Growers Inc., does not show that Mr. Otsuki had agreed in any meeting to sell the cotton to W. B. Dunavant & Company.
Yours very truly,
/S/ H. R. Hill
ROSS HILL”

The minutes of the meeting of March 13, 1973 by Southmost’s Board of Directors, which were introduced in evidence stated, in substance, that “all present” agreed to sell their 1973 cotton for 35.5 cents per pound. As already noted, Otsuki was present at that meeting.

Mr. W. B. Dunavant, of the Dunavant Corporation, then arranged a meeting with Hill and several of the Directors of South-most. He asked them if they could make Otsuki deliver the cotton to Dunavant. The Directors told Dunavant that there was not anything that Southmost could do about the matter. Thereafter, Dunavant commenced negotiations with Otsuki for the purchase of the cotton produced by him in 1973 from his 535 acres. Such cotton was sold by Otsuki to Dunavant on September 25, 1973 for 65 cents per pound of lint cotton.

Dunavant contends in point 1 that the trial court erred in rendering judgment for Southmost, when the undisputed and un-contradicted evidence showed: a) South-most represented that it had authority to sell Otsuki’s cotton; b) Southmost made such representation in a written contract with Dunavant; c) Southmost failed to deliver Otsuki’s cotton under the contract. Dunavant further contends that the trial court erred in failing to sustain its motion for judgment non obstante veredicto (point 3) and in failing to disregard the jury’s answers to Special Issues 3, 4 and 6, (point 4) because the undisputed and uncontradict-ed evidence showed that Southmost: a) represented to Dunavant that it had authority to sell Otsuki’s cotton; b) contracted to sell Otsuki’s cotton to Dunavant; c) failed to deliver Otsuki’s cotton; and d) failure to deliver Otsuki’s cotton damaged Dunavant in the amount of $77,708.90. The jury’s answer to Special Issue No. 4, wherein it was found that Southmost did not fail to deliver any cotton covered by the contract, is attacked in point 5 on the ground that there is “no evidence” to support such answer.

Southmost contends that Dunavant did not sustain its burden of proof on the contract in question, and the trial court did not err in rendering a take nothing judgment against Dunavant. It argues:

“The testimony established that Duna-vant tendered no consideration for the cotton prior to the harvest, that Duna-vant changed the contract without South-most agreeing to it, and that all acreage included in the contract was approximate.”

It is settled law in this State that a written contract may comprise multiple documents, and in such case all documents are to be construed as if they were contained in a single instrument, Braniff Inv. Co. v. Robertson, 124 Tex. 524, 81 S.W.2d 45 (Tex.Com.App. 1935, opinion adopted); Travelers Ins. Co. v. Anderson, 89 S.W.2d 428 (Tex.Civ.App. — Waco 1936, writ ref’d). Here, the contract consisted of: 1) the original printed contract, which was prepared and signed by Dunavant’s duly authorized representative; and 2) the one page list of cotton growers and the amount of acres planted by each in cotton for the 1973 crop year, which was prepared by Hill and attached by him to the printed contract. We hold that both documents constituted the contract in question and consider the contract as if both documents were incorporated in a single instrument.

Where a corporation transacts its business by, through or under a general manager, the conduct of such business by the general manager binds the corporation, if the transaction under scrutiny is within the scope of the corporation’s business. “The general manager of a corporation occupies the position of a general agent. As a corporation can only act through its agents, the general manager, or general agent, is virtually the corporation itself.” Sealy Oil Mill & Mfg. Co. v. Bishop Mfg Co., 235 S.W. 850, 852 (Tex.Com.App. 1921, opinion adopted). Thus, in the ordinary business affairs of a corporation, as a general rule, the acts of a corporation’s general manager are the acts of the corporation itself. Helms v. Home Owners’ Loan Corporation, 129 Tex. 121, 103 S.W.2d 128 (1937). In the instant case, there is no question but that Hill was the general manager of South-most, and he, by virtue of such position, was fully empowered and authorized to execute the contract in question on behalf of South-most. The sale of the cotton from the acreage covered by the contract was within the scope of Southmost’s business. The authority of Hill to bind Southmost by his signing the contract as general manager is not challenged in this appeal. There is no contention that the sale by Southmost of the cotton produced from the acreage described in the document which was attached to the original contract sent to Southmost by Dunavant was without the scope of Southmost’s business.

It is undisputed: 1) Hill, a day or so prior to March 16, 1973, represented to Bennett that Southmost would sell to Dunavant all of the cotton produced from an estimated 4,500 acres in Cameron County, Texas at 35.5 cents per pound; 2) Dunavant agreed to buy such cotton at the price represented and prepared and sent a printed contract, duly signed by its authorized representative, to Hill, the general manager for Southmost; 3) Hill attached a typewritten list, which contained the names of fourteen cotton producers and the acreage planted in cotton by each for the 1973 crop year, to the original contract, and wrote in his own handwriting on the original contract the words “attached list 5,347 acres”; 4) Hill then signed the contract and sent Dunavant a signed copy thereof; 5) Dunavant then changed the figure “4,500 acres” to “5,347 acres” on its copy thereof, which change, in effect, enlarged the estimated acreage to a fixed acreage, as reflected by the attachment by Hill to the original contract; and 6) Otsuki was named on the list as having planted 535 acres of cotton. It is clear that a contract was made whereby Southmost agreed to deliver to Dunavant all of the cotton produced in 1973 from the Otsuki 535 acres at the contract price of 35.5 cents per pound. See Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1 (Tex.Sup. 1976).

There was consideration for the contract. The changes on the face of the original contract made by Dunavant consisted only of the change of “4,500 acres” to “5,347 acres”. That change was prompted solely by Hill’s writing “attached List 5,347 acres” on the face of the original contract and the actual attachment thereto of a list which, in fact, did show a total of 5,347 acres covered by the contract. The action by Dunavant in this respect did not constitute such a change in the contract which would excuse Southmost from delivering any of the cotton produced from the 5,347 acres described in the list. After all parties were fully aware of the fact that Otsuki would not sell or deliver any of his cotton to Dunavant under the terms of the contract in question, Dunavant was then at liberty to negotiate directly with Otsuki for the purchase of such cotton independently of the contract. Southmost’s argument cannot be sustained.

Hill, as general manager for South-most, had authority to bind Southmost by contract. He did so in this case. It is conclusively shown by the evidence that Hill represented to Dunavant that South-most would sell and deliver the Otsuki cotton produced from Otsuki’s 535 acres to Dunavant for 35.5 cents per pound. That was not done. The failure by Southmost to deliver such cotton amounted to a breach of contract, which justified Dunavant in thereafter and without delay, purchasing directly from Otsuki his 1973 cotton production in substitution for the same cotton which was due to be sold and delivered to it by South-most under the contract. See Tex. Bus. & Comm. Code Ann. §§ 2.711(a)(1) and 2.712(a) (1968). There is no showing that the acquisition by Dunavant of the Otsuki cotton was not in good faith or that the price paid was not a fair and reasonable price on the day of purchase. The finding by the jury that the purchase price of 65 cents per pound paid to Otsuki was reasonable is not challenged by Southmost by a cross point.

The undisputed evidence showed that Hill, the general manager for South-most, who did not have any authority from Otsuki to contract for the sale of Otsuki’s 1973 cotton production, did, however, represent to Dunavant, that Southmost did have such authority. It is further conclusively established by the evidence that Southmost did not deliver Otsuki’s 1973 cotton production to Dunavant in accordance with the terms of the contract, and that such failure constituted a breach of contract which damaged Dunavant in the amount of $77,708.90, the difference between the market price of the Otsuki 1973 cotton production at the time of harvest and the contract price. There is no evidence which supports the findings of the jury on which the judgment is based. It was reversible error to render a take nothing judgment against Dunavant. Points 1, 3, 4 and 5 are sustained.

Dunavant, in points 2 and 6, also attacks the jury’s findings: 1) that Southmost did not represent that it had the authority to sell Otsuki’s cotton, and 2) that Southmost did not fail to deliver any cotton covered by the contract by “against the great weight and preponderance of the evidence” points. In view of our decision to reverse the judgment of the trial court and to render judgment for Dunavant, it is not necessary that we dispose of those points.

The judgment of the trial court is reversed and judgment is here rendered that W. B. Dunavant and Company, plaintiff-appellant, recover of and from Southmost Growers, Inc., defendant-appellee, the sum of $77,708.90, together with interest thereon at the rate of 9% per annum from January 28, 1977 until paid, and for all costs of suit.

REVERSED and RENDERED.


author: KEITH, Justice.

text:
    R. A. SCHRIEWER et al., Appellants, v. William C. LIEDTKE, Jr., et al., Appellees.
    No. 8057.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 19, 1978.
    Rehearing Denied Feb. 16, 1978.

      Alfred L. Deaton, III, Houston, for appellants.
    Richard B. Miller, Houston, for appellees.
   KEITH, Justice.

This is a suit for specific performance of a contract for the sale of real property. The trial court entered a judgment on a directed verdict for plaintiffs, and defendants have perfected their appeal upon twenty-five points of error.

During 1972, William Liedtke, Jr., and George Jewell acquired approximately 1,040 acres of land in Austin County, Texas. On June 5, 1974, R. A. Schriewer, Trustee, entered into an earnest money contract with William C. Liedtke, Jr., individually, and as trustee, to purchase the property. Prior to that date, the contract terms were negotiated by Schriewer’s attorney, Julian E. Weis-ler, II, and Liedtke’s attorney and partner, George Jewell, but the contract was prepared by Weisler.

The contract required that the parties close “on or before one hundred twenty (120) days from the date of the execution of this contract” — October 3, 1974. Seller’s obligations included: delivering good and marketable title, providing Owner’s Title Policy “upon” closing, and keeping five first lien notes and all taxes current. Buyer’s obligations included: paying $25,000 earnest money to an escrow agent upon execution of the contract, paying $287,000 cash upon closing, assuming the unpaid balance on five first lien notes, and executing three vendor’s lien notes equal to one-half, one-fourth, and one-fourth of the balance of the purchase price to be secured by a second lien. The contract further provided that the buyer was to order an Owner’s Title Policy Commitment and Title Report and to make any objections to the title within fifteen days after receiving the report, that the seller was to have thirty days to cure any objections, and then the buyer would have to notify him of his acceptance or rejection of curative work within ten days. The entire contract could be rejected by the buyer only if title failed as to ten percent or more of the acreage; otherwise, the purchase price would be reduced proportionately. There was no provision requiring a current survey.

Within fifteen days after the issuance of the Title Report, Weisler notified Jewell of two objections — one involving a 4.86-acre tract and the other involving a boundary line conflict affecting a 32-acre tract and. a 33-acre tract — and the required reduction if the objections could not be cured. There was some discussion of possibly waiving these objections between Weisler and Jewell, but nothing was put in writing.

In mid-September without notice to plaintiff, Schriewer executed an assignment of his rights under the contract to J. B. Bumgardner, Sr., who had been planning to purchase the property with Schriewer. Schriewer later left for Africa to go on a long-scheduled hunting trip.

Around September 30, 1974, Bumgardner met with Weisler to gather information on the earnest money contract. But, on September 30th, he put Weisler on standby and retained another attorney, William C. Morris, III. He executed a power of attorney to Morris to represent him at the closing.

On October 3, 1974, Jewell received a letter from Morris informing him that he represented one of the principals and warning that if the two title objections were not cured by the closing, the deal would be cancelled.

On October 3, 1974, Jewell delivered the closing papers to the title company in Bell-ville and copies to Weisler and returned to Houston. Bumgardner and Morris went to the title company that afternoon, arriving shortly before closing time. After briefly reviewing the papers, Morris advised Bum-gardner not to sign them. Morris telephoned Jewell and requested that he return to Bellville so that the closing could be completed, but Jewell refused to return since he could not get there during business hours.

On October 7th, Morris sent a letter to the Bellville Abstract Company requesting the return of the $25,000 earnest money to Schriewer, and explaining that the contract was cancelled “since Seller has failed among other things to cure the title objections properly raised that pertain to 10% or more of the acreage, and since he has refused to furnish us with a staked survey properly documented and certified to its accuracy by a registered engineer or surveyor of the State of Texas which is required to evidence good and marketable title . . .” Obviously, neither of the reasons assigned was valid.

The parties were unable to reach any amicable agreement in order to close; and, in November 1975, Liedtke and Jewell filed suit for specific performance. The court, after hearing evidence from both parties, granted a directed verdict for plaintiffs. The court decreed that the defendants specifically perform the contract as of October 3, 1974.

In an appeal from a directed verdict, we must determine whether there is any evidence of probative force to raise fact issues on any material questions presented. Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex.1976); Tarkington v. Beneficial Finance Co., 516 S.W.2d 722, 722 (Tex.Civ.App. — Beaumont 1974, writ ref’d n. r. e.). We must examine the entire record and consider the evidence that is favorable to the party against whom the verdict was rendered — appellants—and disregard all contrary evidence and inferences. Henderson, supra (544 S.W.2d at 650); Rogers v. Searle, 544 S.W.2d 114, 115 (Tex.1976); Anderson v. Moore, 448 S.W.2d 105, 105 (Tex.1969); Tarkington, supra (516 S.W.2d at 722). “When reasonable men may differ as to the truth of controlling facts, a jury issue is present.” Henderson, supra (at 650); accord, Najera v. Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365, 367 (1948).

Using the appropriate standards of review, we affirm the trial court’s judgment for the reasons now to be stated.

In appellants’ first three points of error, they complain that the earnest money contract is too indefinite, uncertain and incomplete with respect to the essential terms of the purchase money notes required therein to support a judgment of specific performance. We disagree.

Specific performance can be decreed if the essential terms of a contract are expressed with reasonable certainty. Johnson v. Snell, 504 S.W.2d 397, 398 (Tex.1973); Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 459 (1943). Absolute certainty is not required. Bryant v. Clark, 163 Tex. 596, 358 S.W.2d 614, 615 (1962); Langley, supra (at 459); Wilson v. Beaty, 211 S.W. 524, 527 (Tex.Civ.App. — San Antonio 1919, writ ref’d); Phillips v. Campbell, 480 S.W.2d 250, 253 (Tex.Civ.App. — Houston [14th Dist.] 1972, writ ref’d n. r. e.).

The contract in question was drawn up by two experienced attorneys, both of whose clients wanted to make a valid contract. Therefore, we will view the contract as valid if we can interpret its terms with reasonable certainty. The contract specified that payments would be made on the purchase money notes as follows:

“Said notes to be executed by Purchaser herein shall provide for said balance to be paid over a term of ten (10) years, with semi-annual payments of principal, plus interest at the rate of eight per cent (8%) per annum of the unpaid balance of said notes.” ■

With a reasonable certainty, we can read this contract to provide for twenty equal semi-annual payments of principal, plus any accrued interest. These terms do not suggest amortized payments. Therefore, we hold that the earnest money contract is valid and enforceable by specific performance.

Having found the earnest money contract to be valid, we do not find it necessary to discuss each of the remaining points of error. It is clear from the evidence that before October 3rd appellant Bumgardner wanted to avoid the earnest money contract because of a sharp decline in land values in the area. He put Weisler, an experienced real estate attorney, on standby and hired Morris, an attorney with little to no real estate experience. Morris sent the letter of October 2nd which specified his two objections to the title before closing — two objections that could only reduce the purchase price and not bring about a cancellation of the contract.

On October 7, 1974, Morris sent a letter to the title company requesting the return of the $25,000 earnest money because the appellees failed to cure the two title objections “that pertain to 10% or more of the acreage,” and refused to furnish him with a current survey. On November 6, 1974, Schriewer sent a letter to Liedtke informing him that he was going to retain Morris as his attorney until the $25,000 was returned to him as Morris had previously requested. He made no mention of any problems with the contract, the closing papers, or any other objection. “Defects” involving these papers were not introduced until January 10, 1977, when appellants filed their First Amended Original Answer, and they became more understandable on the first trial day, January 17,1977, when appellants filed their Second Amended Original Answer.

The two title objections raised by Weisler and later by Morris involved less than 10% of the property. Therefore, by contract these two objections could only reduce the purchase price, not result in destruction of the contract. The contract did not require that appellees provide appellants with a current survey, and Weisler did not request one in his objection letter. Therefore, ap-pellees had no duty to provide one. Consequently, all three reasons given by Morris for cancelling the contract were legally and factually untenable.

We do not permit appellants, once having given their reasons for not performing under the contract, to change completely their reasons for not performing to the detriment of appellees.

It is clear that the closing papers did not conform exactly to the earnest money contract in that they contained three deeds of trust (each requiring $1,400 per acre for partial releases) instead of one deed of trust, and that the appellees did not obtain consent from the holders of the Emma Brown note to create a second lien on the property, or from the five first lien holders to agree to partial releases. But, had appellants raised these defects when refusing to sign the closing papers along with the three they did raise, they could have validly set them all up as defenses. However, because appellants named only the two title problems and the lack of a survey as their grounds for refusal and remained silent as to the other problems, their conduct caused the time to pass without allowing appellees to correct their errors and tender corrected closing papers to them. To paraphrase one court’s opinion,

“[T]he reasonable intendment of [appellants’] conduct was to lull [appellees] to inaction and cause [them] to let pass what time and opportunity [they] had to correct the infirmities of the [closing papers], and then, if sued, to reap for [themselves] a benefit from the utterly helpless position into which [they] had induced [their] adversaries] to drift.”

Second Nat. Bank v. Lash Corp., 299 F. 371, 374 (3rd Cir. 1924). Accord, Chevrolet Motor Co. v. Gladding, 42 F.2d 440, 445 (4th Cir.), cert. denied, 282 U.S. 872, 51 S.Ct. 78, 75 L.Ed. 770 (1930). Luckenbach S.S. Co. v. W. R. Grace & Co., 267 F. 676, 679 (4th Cir.), cert. denied, 254 U.S. 644, 41 S.Ct. 14, 65 L.Ed. 454 (1920). Cf. Ohio & Miss. Ry. v. McCarthy, 96 U.S. 258, 267-68, 24 L.Ed. 693, 696 (1878). See also 28 Am.Jur.2d Estoppel & Waiver § 72, at 703 (1966); 31 C.J.S. Estoppel § 116, at p. 609 (1964).

It is clear that if appellants had complained of the three deeds of trust on October 3rd, appellees could have corrected the error as the trial court did in the judgment papers. It is clear that if appellants had complained of the Emma Brown note provision on or before October 3rd, appellees could have obtained written consent for placing a second lien on the property. This situation was remedied by appellees who obtained a written consent from Wayne Giese, President of the Brenham Cemetery Association, the owner and holder of the Emma Brown note on February 15, 1977. It is also clear that if appellants had complained about the lack of provisions for partial releases in the five first lien notes, appellees could have, before, or shortly after October 3rd, attempted to obtain consent from the note holders or, perhaps, prepaid the balance of the notes. If appellants decide to exercise their right to partial releases in the future, then appellees can find a way to remedy the situation; they are obligated by contract to provide partial releases.

Professor Corbin, 3A Corbin on Contracts § 762, at 528 (1960), expresses the concept in this manner:

“A buyer of land who points out specific defects in title, as his only stated reason for rejecting it and refusing to pay can not set up other defects as a defense, if those other defects could and would have been cured in time but for the buyer’s misleading the seller into thinking that they were regarded as immaterial or were non-existent.”

For the reasons stated, and because there were no disputed issues of fact to be submitted to the jury under the applicable standards enunciated earlier, we overrule points of error four through twenty-four. Henderson v. Travelers Ins. Co., supra (544 S.W.2d at 650); Rogers v. Searle, supra (544 S.W.2d at 115).

In their final point appellants complain of the admission into evidence of plaintiffs’ eighteenth exhibit, a list prepared by Liedtke’s secretary showing all interest and tax payments made on the property in question since October 3, 1974. Appellants objected to its unlimited offer at trial but failed to repeat their objection when appellees reoffered it for a limited purpose. As said in Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339, 342 (1944):

“Merely to object to an instrument on the ground that it contains hearsay statements when a portion of the instrument is clearly admissible in evidence, without pointing out the statements claimed to be hearsay, and leveling an objection specifically thereto, does not invoke a ruling by the court on the question of the admissibility of the hearsay statements.”

See also K-Mart No. 4195 v. Judge, 515 S.W.2d 148, 152 (Tex.Civ.App. — Beaumont 1974, writ dism’d), and authorities therein cited.

Furthermore, Liedtke testified that the payments listed in exhibit eighteen were correct, thus indicating that, although he did not prepare the payment list, he was familiar with the amount of the payments made and was testifying from his own knowledge that they were correct.

Finding no reversible errors, we affirm the judgment of the trial court.


author: GUITTARD, Chief Justice.

text:
    Morris A. WARD, Sr., and Clyde Delay, Appellants, v. SHRIRO CORPORATION, Appellee.
    No. 19393.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 20, 1978.
    Rehearing Denied Feb. 16, 1978.
    S. L. Lewis, Stephen M. Stasio, James A. Gandy & Associates, Dallas, for appellants.
    Jay M. Goltz, Dallas, for appellee.
   GUITTARD, Chief Justice.

Shriro Corporation recovered judgment on a jury verdict for actual and exemplary damages from Morris Ward and Clyde DeLay for conversion of a check issued by Transcontinental Insurance Company in payment of a claim on a policy of builders’ risk insurance issued by Transcontinental. Ward and DeLay contend on this appeal that Shriro’s claim against them is barred by the fact that Shriro originally joined Transcontinental as a party defendant and alleged that Transcontinental was still liable on the claim, but, before the trial, accepted a payment from Transcontinental in settlement of its claim against Transcontinental. We sustain this contention, and, accordingly, we reverse the judgment of the trial court and render judgment that plaintiff take nothing.

The first amended petition, on which Shriro went to trial, asserts liability on part of Transcontinental as well as of the defendants now appealing. This pleading alleges that Transcontinental had issued its builders’ risk policy covering an apartment project owned by Rio Lado Ltd., on which plaintiff Shriro was the builder and contractor; that the premiums on the policy were paid by Rio Lado; that the policy named as beneficiary both Rio Lado and Shriro; that when the project was under construction certain water damage occurred, which Shriro repaired; that Shriro employed R. G. Beneke & Company to make a claim on the policy; that such a claim was made and “honored” by Transcontinental, which issued its check in the amount of $4,241.61, but that Shriro was not named in the check. Instead, the petition avers, the check named as payees Rio Lado, Beneke, and the holder of the mortgage on the apartment project. The petition further states that defendant DeLay, the agent who had originally written the policy, received the check and obtained the endorsement of defendant Ward as general partner of Rio Lado, Ltd., and also obtained the endorsements of Beneke and the mortgagee, and that DeLay converted the proceeds to his own use by applying it on a debt owed to him by Rio Lado. The petition alleges that Ward got the benefit of the check and endorsed it on behalf of Rio Lado, knowing that he had promised Shriro to see that Shriro was paid for the water damage. With respect to Transcontinental, the petition alleges:

“Insurance Company failed to pay such amount due under such insurance policy to the insured plaintiff as they were bound to do under the terms and conditions of such policy thereby making it impossible for plaintiff to protect himself against such conversion and thereby depriving plaintiff of the benefit of the proceeds of such claim under the policy.”

The prayer is for judgment jointly and severally against Transcontinental, Ward and DeLay for $4,241.61, and for punitive damages against Ward and DeLay. The petition also contains a claim against Beneke for negligence in failing to see that the proceeds of the cheek were paid to Shriro.

Before trial plaintiff Shriro settled with Transcontinental and filed among the papers a release of all claims growing out of matters alleged in the amended petition. The release recites acceptance by Shriro of $1,500 “in full satisfaction of a disputed claim for which liability is expressly denied.” The cause proceeded to trial against Ward, DeLay and Beneke. The jury found that both Ward and DeLay had converted $3,817.45 from the proceeds of the check in question (apparently after deducting $424.16 paid by Ward to Beneke as a commission) and assessed punitive damages against both Ward and DeLay, but declined to find that Beneke had breached any duty owed to Shriro.

Ward and DeLay asserted in their motions for judgment non obstante veredic-to, as they also contend here, that they were not guilty of conversion because plaintiff Shriro had alleged in its petition that Transcontinental had failed to pay the amount due Shriro under the insurance policy and, therefore, that plaintiff had alleged no title or right to the check or its proceeds, and moreover, that by accepting the sum of $1,500.00 in settlement of the claim against Transcontinental, plaintiff is barred and es-topped from asserting a claim against them for conversion on the theory that plaintiff had title to the check or the right to its possession.

We sustain this contention on the authority of Lomas & Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex.1977). In that case, the owners of a residence destroyed by fire sued an insurance company on a fire insurance policy and also sued a mortgage management firm for negligence in failing to provide insurance. After the claimants had settled with the insurance company for eighty percent of their claim, the mortgage management company moved for summary judgment, which the trial court granted. The court of civil appeals reversed and remanded, but the supreme court reversed the judgment of the intermediate court and affirmed the judgment of the trial court on the ground that the remedies in the causes of action against the two defendants were inconsistent and that since the claimants had received settlement benefits from their suit against the insurance company, their suit against the other defendant was precluded. By the same reasoning, we hold that Shriro could not sue Transcontinental on the insurance policy on the theory Transcontinental had failed to pay Shriro’s claim and accept benefits from Transcontinental on that claim, and then assert in their suit against Ward and DeLay that Transcontinental had, in fact, paid the claim by the check in question and that plaintiff was entitled to the proceeds. The same fact, payment of the claim, is thus both affirmed and denied. Consequently, the two allegations are inconsistent.

Shriro argues that it has made no election of remedies because plaintiff’s claim against Transcontinental and against Ward and DeLay are “distinct causes of action against different persons arising out of independent transactions,” citing Custom Leasing, Inc. v. Texas Bank & Trust Company, 491 S.W.2d 869 (Tex.1973). We conclude that the rule announced in Custom Leasing does not apply here. The same contention was made in Huckabee, but the supreme court distinguished Custom Leasing on the ground that the Huckabees’ dealings with the insurance company and with the mortgage management company were interconnected as a part of the same effort by the Huckabees to secure insurance on their household effects. On like reasoning, we hold that Shriro’s employment of Be-neke in an effort to collect its claim against Transcontinental, which resulted in issuance of the check in question, and its subsequent settlement with the insurance company with respect to the same claim, were interconnected as a part of the same effort by Shriro to recover the amount claimed to be due under the insurance policy in question. Thus we hold that here, as in Huckabee, the causes of action asserted in the amended petition against Transcontinental and the other defendants did not arise out of independent transactions with the several defendants.

Shriro points out that it has realized no double recovery, since its damages as found by the jury against Ward and DeLay were reduced in the judgment by the amount of the settlement it had received from Transcontinental. Thus Shriro in effect, admits that to the extent of the amount received in settlement its claims are not wholly distinct and independent, but it insists that it is not precluded from recovering the difference from Ward and DeLay. A similar contention was made in Huckabee, and though accepted by the court of civil appeals, was rejected by the supreme court. The court of civil appeals, in reversing the summary judgment in that case, observed that the doctrine of election could not bar the claimants from being made whole to the extent of the unrecovered twenty percent of their loss. Huckabee v. Lomas & Nettleton Company, 550 S.W.2d 371, 374 (Tex.Civ.App.— Waco 1977). The supreme court, however, affirmed the judgment of the trial court, preferring to follow instead its earlier holding in Seamans Oil Company v. Guy, 115 Tex. 93, 276 S.W. 424 (1925), to the effect that a litigant who pursues one of two inconsistent remedies to judgment, or receives anything of value under the claim thus asserted, is estopped to pursue another and inconsistent remedy.

We recognize the force of the argument that even if the remedies available to a claimant are inconsistent, he should be permitted, in view of the uncertainty of litigation, to effect a compromise of one of such claims and then pursue the other claim to the extent of the difference. The contrary policy consideration is that a claimant should not be permitted to assert formally the existence of one state of facts in a claim against one party and accept complete or partial satisfaction of that claim, and then maintain an action against another party on the ground that the facts first asserted did not exist. We conclude that the supreme court in Huckabee and Seamans has given controlling weight to this latter consideration.

The judgment of the trial court is reversed and judgment is here rendered that plaintiffs take nothing against defendants Ward and DeLay.