author: McDONALD, Chief Justice.

text:
    Lawton L. SHURTLEFF, Appellant, v. David J. GILLER, Appellee.
    No. 5464.
    Court of Civil Appeals of Texas, Waco.
    July 17, 1975.
    Rehearing Denied Aug. 21st, 1975.
    Marvin Thomas, Dallas, for appellant.
    Hunter, Greenfield, Whittington & Vineyard, J. Richard Whittington, Dave V. Hai-gler, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Shurtleff from take-nothing judgment in suit on a note against defendant Giller.

Plaintiff sued defendant on a promissory note dated June 1,1973, in amount of $67,-136., bearing 9% interest, and payable September 30, 1973. Plaintiff alleged he is owner and holder of the note, that defendant refused to pay same, and sought judgment for the face of the note, interest and attorney’s fees.

Defendant answered that he executed the note under duress applied by plaintiff, and but for such duress he never would have executed same. ,

Trial was to the court without a jury, which rendered judgment plaintiff take nothing.

The trial court filed Findings of Fact and Conclusions of Law, pertinent of which are summarized as follows:

1) Plaintiff Shurtleff sued defendant Gil-ler on a note for $67,136., dated June 1, 1973, and payable September 30, 1973.
2) In 1970 Giller became an employee of Thorsen Tool Company.
3) At all pertinent times Shurtleff was Chief Operating Officer of Thorsen.
5) Shurtleff was Giller’s superior.
6) In May, 1973, Shurtleff demanded Gil-ler sign the note sued on.
7) Immediately prior to Giller’s signing the note, Shurtleff advised Giller unless he signed the note his employment with Thorsen would be terminated.
8) Giller signed the note because of the threat of termination of his employment by Shurtleff, and but for such fact would not have signed it.
9) For several months prior to and at the time of signing the note Giller’s daughter was hospitalized at a charge of $700. per week.
10) Shurtleff was aware of the fact Gil-ler’s daughter was hospitalized.
11) Giller’s employment contract contained a covenant not to compete with his employer for five years following termination of his services for any reason.
12) Giller knew of his covenant not to compete with his employer at the time he signed the note.
13) The signing of the note was not related to the business of Thorsen, but to matters personal to Shurtleff and Gil-ler.
14) In 1968, Shurtleff and Giller entered into an agreement whereby they participated in construction of apartments in Dallas; Shurtleff was to have 50% interest in the project, but was not to be out any money as a result of participation in the project.
16) In 1969, Giller and Shurtleff borrowed $170,000. from a bank for the project, and jointly signed a note for such funds.
17) The note was paid down by the project to $60,000.
20) Shurtleff paid the Bank the $60,000.
24) Giller has not paid Shurtleff the note sued on.

CONCLUSIONS OF LAW

Giller executed the note as a result of duress applied by Shurtleff. As a result of such duress, such transaction represented by said note is void and unenforceable, and Giller is not indebted to Shurtleff on the note.

Plaintiff appeals on 16 points, pertinent of which contend:

1) The evidence is insufficient as a matter of law to establish duress.
2) The evidence is insufficient to establish defendant signed the note because of the threat of termination of his employment.
3) The finding that plaintiff advised defendant if he did not sign the note his employment would be terminated is based on parol evidence which is inadmissible to vary the terms of the written note.
4) There is no evidence, and/or insufficient evidence to support the judgment, and the judgment is against the great weight and preponderance of the evidence.

Plaintiff was defendant’s superior in the Thorsen Tool Company. Plaintiff and defendant formed a joint venture aside from their duties with Thorsen to construct apartment houses. Plaintiff and defendant signed a note at a bank for $170,000. to get funds for the project. The note was paid down to $60,000 by the project. Plaintiff and defendant dissolved the joint venture, and agreed that all assets of the venture be transferred to defendant and defendant be liable for all indebtedness. Thereafter the bank called on plaintiff to pay the $60,000 due on the $170,000. note plaintiff and defendant had signed. Plaintiff paid such note, and thereafter asked defendant to sign the note here sued on. Defendant testified plaintiff told him that his employment at Thorsen would be terminated unless he signed the note. Plaintiff denied the foregoing. Defendant knew of his covenant not to compete with his employer after termination of employment, and plaintiff knew of the hospitalization of defendant’s daughter.

Duress is a question of fact and is the threat to do some act which the party threatening has no legal right to do. Such threat must be of such character as to destroy the free agency of the party to whom it is directed. It must overcome his will and cause him to do that which he would not otherwise do, and which he was not legally bound to do. The restraint caused by such threat must be imminent, and must be such that the person to whom it is directed has no present means of protection. Dale v. Simon, Tex.Com.App., Adopted, 267 S.W. 467; Lawrence v. J. M. Huber Corp., Tex.Civ.App., NWH, 347 S.W.2d 5; Outlaw v. Settegast, Tex.Civ.App., NRE, 338 S.W.2d 291; Scurlock v. Lovvorn, Tex.Civ.App., NWH, 410 S.W.2d 525.

Plaintiff could have sued defendant on the termination agreement for the $60,-000. plaintiff paid to the bank, but instead chose to have defendant sign a note. The note is for more than $60,000. and bears 9% interest. Plaintiff did not have the right to threaten to terminate defendant’s employment if he did not sign the note.

We think the evidence as a whole is ample and sufficient to establish that plaintiff did threaten to terminate defendant’s employment if defendant did not sign the note, that duress has been established, and that the findings and judgment are not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

All plaintiff’s points and contentions have been considered and are overruled.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    W. Henry PUMPHREY et al., Appellants, v. Henry D. PUMPHREY et al., Appellees.
    No. 14980.
    Court of Civil Appeals of Texas, Austin.
    July 23, 1975.
    Rehearing Denied Sept. 10, 1975.

      Amos Peters, Jr., Peters & Peters, Taylor, William S. Lott, Georgetown, for appellants.
    James L. Cutcher, Barkley & Cutcher, Taylor, for appellees.
   PER CURIAM.

Appellants, W. Henry Pumphrey, Parker Sturgis Pumphrey, and Andrew Beal Pum-phrey, Sr., have filed with the Clerk of this Court a motion to extend time for filing a transcript and statement of facts in a cause from the district court of Williamson County. Appellees, Henry D. Pumphrey, John B. Pumphrey, and Ada Elizabeth Pumphrey Mason, responded in opposition to the motion. One of appellees’ contentions is that this Court does not have jurisdiction to entertain the appeal for the reason that appellants’ deposit of cash in lieu of an appeal bond was not filed within thirty days after the overruling of appellants’ amended motion for new trial as required by Texas, Rules of Civil Procedure, rule 356(a). We are of the opinion that appellees’ contention is well taken, and, accordingly, the appeal will be dismissed.

The sequence of events is as follows:

December 23,1974 Judgment was entered
January 2, 1975 Appellants’ motion for new trial was filed
January 22, 1975 Appellants’ amended motion for new trial was filed
April 10, 1975 Agreement to postpone Decision on Amended Motion for New Trial was filed
April 22, 1975 The Order overruling the amended motion for new trial was entered
May Í9, 1975 The deposit of cash in lieu of appeal bond was filed

Tex.R.Civ.P. 329b(3) provides in part that “All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement.” (Emphasis added) The forty-five day period in the present case ended on March 10,1975 and our question is whether the agreement filed a month later gave the trial court power to consider and act on the amended motion for new trial. The agreement, dated February 20, 1975, and signed by the attorneys for the parties, provided that the decision of the court in rendering the decision on the amended motion for new trial would be postponed until April 22, 1975.

The amended motion for new trial was overruled by operation of law on March 10, 1975, unless the time for acting on the same was legally extended on or before that date. Texas Employers’ Insurance Association v. Martin, 162 Tex. 376, 347 S.W.2d 916 (1961). Insofar as the present proceeding is concerned, the agreement signed by the attorneys could have no operative effect as an agreement until it was filed on April 10, 1975. At the time that was done the amended motion for new trial had already been overruled by operation of law, and the parties were without power to postpone the decision of the motion. Texas Employers’ Insurance Association v. Martin, supra, Texas & New Orleans Railroad Co. v. Arnold, 388 S.W.2d 181 (Tex.1965).

Appellants’ cash deposit in lieu of the cost bond was filed seventy days after the amended motion for new trial was overruled by operation of law. Tex.R.Civ.P. 356(a) requires cost bonds or the cash deposit in lieu thereof to be filed within thirty days after the date of the judgment or order overruling the motion for new trial. Where, as here, the amended motion for new trial was overruled by operation of law, the period within which the cost bond or cash deposit must be filed begins from the date that the amended motion for new trial was overruled by operation of law. Washington v. Golden State Mutual Life Insurance Co., 405 S.W.2d 856 (Tex.Civ.App.1966), writ ref'd, 408 S.W.2d 227 (Tex.1966). Compliance with Rule 356 is mandatory and jurisdictional. Washington v. Golden State Mutual Life Insurance Co., supra, Glidden Co. v. Aetna Casualty & Surety Co., 155 Tex. 591, 291 S.W.2d 315 (1956).

Appellants’ motion for extension of time to file the transcript and statement of facts is overruled.


author: KLINGEMAN, Justice. BARROW, Chief Justice

text:
    Ramiro AMAYA et al., Appellants, v. TEXAS SECURITIES CORPORATION, Appellee.
    No. 15430.
    Court of Civil Appeals of Texas, San Antonio.
    July 30, 1975.
    Rehearing Denied Sept. 10, 1975.

      Barry Snell, San Antonio, Anne Julia Col-vig, Edinburg, for appellants.
    Dobbins, Howard & Harris, Richard W. Harris, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a venue action involving the provisions of Subdivision (b) of Section 5 of Article 1995, Tex.Rev.Civ.Stat.Ann. (Supp. 1975). Appellee, Texas Securities Corporation, sued appellants, Ramiro Amaya and wife, Delia G. Amaya, in Bexar County, Texas, for non-payment of a debt for certain paving lien improvements made to property in Hidalgo County, Texas, and to foreclose its mechanics and materialmen's lien on such property. Appellants filed a plea of privilege asserting their rights to be sued in Hidalgo County, Texas, the county of their residence. Appellee filed a controverting affidavit asserting that venue was proper under Section 5 of Article 1995 because the mechanics and materialmen’s lien contract provided that the obligation was payable in San Antonio, Bexar County, Texas. The trial court, after a non-jury trial, overruled the plea of privilege. The trial court filed findings of fact and conclusions of law.

By one point of error, appellants assert the trial court erred in overruling appellants’ plea of privilege because the action arises out of a “consumer transaction” and venue is controlled by Section 5(b) of Article 1995.

Subdivision (b) of Section 5, Article 1995, was enacted by the Legislature to help eliminate what is sometimes referred to as “the distant forum abuse.” Such amendment apparently was enacted as a result of an article by Professor John J. Sampson entitled “Distant Forum Abuse in Consumer Transactions: A Proposed Solution,” 51 Texas L.Rev. 269 (1973). In such article, Professor Sampson points out that some credit companies and lending institutions have made the defense of consumer transaction lawsuits difficult and expensive by inserting a provision in a written contract naming a place of payment at least 100 miles distant from the place where the transaction actually occurred. By so doing, it would make more difficult, or effectively defeat, the debtor’s ability to subpoena witnesses in his defense (Rule 176, Tex.R.Civ.P. [Supp.1975]). In addition, Mr. Sampson points out that statistics indicate a high incidence of default judgments taken in cases where the suit is brought in a distant forum because of the high expenses and difficulties imposed on the debtor.

The amendment enacted by the legislature is verbatim with the proposed change by Professor Sampson in such article and reads as follows:

“(b) In an action founded upon a contractual obligation of the defendant to pay money arising out of or based upon a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household or agricultural use, suit by a creditor upon or by reason of such obligation may be brought against the defendant either in the county in which the defendant in fact signed the contract, or in the county in which the defendant resides at the time of the commencement of the action. No term or statement contained in an obligation described in this subsection shall constitute a waiver of this provision.”

On August 3, 1971, Ramiro Amaya and wife executed a mechanics and material-men’s lien for paving improvements with Mission Paving Company. The paving improvements were to be made on the street abutting the Amaya home. The home is a private residence in Hidalgo County, Texas, and is the homestead of the Amayas. The contract was signed in Hidalgo County and the work was done in Hidalgo County. .The mechanics and materialmen’s lien contract, however, is made payable at the office of the Texas Securities Corporation in Bexar County, Texas.

As will be noted from the provisions of Subdivision 5(b), if a suit arises out of a consumer transaction for goods and services intended primarily for personal, family or household use, the venue is now in the county where the contract was signed or in the county in which the consumer resided at the time of the transaction. This is true regardless of where the contract is made payable.

Appellee asserts that venue is properly vested in Bexar County under Article 1995, Section 5(a) because of the provision in the mechanics and materialmen’s lien contract which provides that the obligation created therein shall be payable at the office of the Texas Securities Corporation in the City of San Antonio, Bexar County, Texas. Appel-lee contends that Subdivision (b) of Section 5 is not applicable for two basic reasons: (1) the paving improvements here involved are not consumer goods or services; (2) Subdivision (b) does not cover or apply to a lien given by a statute and the lien herein involved is both a statutory lien by virtue of the levy of a paving assessment by the City of Mission under provisions of Article 1105b, Tex.Rev.Civ.Stat.Ann. (Supp.1975), and is also a constitutional and statutory lien for the furnishing of labor and material by virtue of Article 16, Section 37 of the Constitution of the State of Texas and Article 5452 et seq., Tex.Rev.Civ.Stat.Ann. (Supp.1975).

Both parties agree that this is a case of first impression in regard to the construction or application of Subdivision (b) of Section 5, Article 1995, in this type of transaction. Subdivision (b) does not define a “consumer’s transaction for goods, services, loans or extensions of credit intended primarily for personal, family, household or agricultural use.” In this connection, we have looked at other codes or statutes dealing with consumer credit transactions for whatever aid they might be in ascertaining what is meant by such terms. Article 9 of the Uniform Commercial Code provides that “Goods are ‘consumer goods’ if they are used or brought for use primarily for personal, family or household purposes.” Texas Business and Commerce Code Ann., Article 9.109(1). The Truth in Lending Act [15 U.S.C.A., Section 1602(h) 1970] (Consumer Credit Protection) states that the adjective “consumer” used with reference to a credit transaction, characterizes the transaction as one in which.the party to whom the credit is offered or extended is a natural person, and the money, property or services which are the subject of the transaction are primarily for personal, family, household, or agricultural purposes.

It has been stated that the Texas Act was patterned after California statutes; and in this connection, the California Civil Code contains these definitions of goods and services:

“1802.1 Goods
‘Goods’ means tangible chattels bought for use primarily for personal, family or household purposes, including goods which, at the time of the sale or subsequently are to be affixed to real property as to become a part of such real property whether or not severable therefrom,
“1802.2 Services
‘Services’ means work, labor and services for other than commercial or business use, including services furnished in connection with the sale or repair of goods as defined in 1802.1 or furnished in connection with the repair of motor vehicles or in connection with the improvements of real property.”

We have been cited no case nor have we found any construing what constitutes a consumer transaction under the venue provisions of Subdivision (b) of Section 5., Article 1995. Appellants contend the factor which segregates a “consumer” transaction from other kinds of transactions is the intended use of the goods, services, loans or extensions of credit; that the property here involved is a private residence and the purpose of improving the street in front is to make it easier for the family to come and go and to better accomplish the countless personal, family or household trips which arise each day for all families; that the transaction here involved is clearly a consumer transaction for goods and services intended primarily for personal, family or household use. We so regard it.

Appellee contends that Subdivision (b) is not applicable because the lien and obligation is a statutory lien under Article 1105b. The flaw in this contention is that the obligation sued upon was not the paving certificate but the mechanics and material-men’s lien signed by the Amayas. It is true that a paving lien obligation can be created by Article 1105b. However, the paving lien or certificate of assessment here involved was not introduced into evidence and the only thing in writing placing venue in Be-xar County, Texas, is the mechanics and materialmen’s lien contract signed by the Amayas. Moreover, the suit also seeks a foreclosure of the lien on the property. It appears from the record that the property is the homestead of the Amayas, and the statutory paving lien under Article 1105b would not be effective to establish an enforceable, foreclosable lien on the property, and in order to accomplish this under our constitutional and statutory provisions, it was necessary to take a mechanics and ma-terialmen’s lien for improvements to the property, signed by the Amayas. It is clear that the obligation here sued upon was the mechanics and materialmen’s lien for two dominant reasons: (1) it was the only instrument in writing placing venue in Bexar County, Texas; (2) it is the only instrument upon which a foreclosure of the property could be had.

In our opinion, the transaction here involved is a consumer transaction governed and controlled by the venue provisions of Subdivision (b) of Section 5, Article 1995. The trial court improperly overruled appellants’ plea of privilege. The judgment is reversed and remanded to the trial court with instructions that the cause be transferred to the District Court of Hidalgo County, Texas.

BARROW, Chief Justice

(dissenting).

I respectfully dissent.

It should be emphasized at the outset that the Texas Legislature did not adopt the definitions found in the California Statutes. The only definition of “consumer goods” given by the Texas Legislature is that found in Section 9.109 of the Uniform Commercial Code which provides: “Goods are ‘consumer goods’ if they are used or bought for use primarily for personal, family or household purposes.” This is a much narrower definition than the construction adopted by the majority.

It is seen that Professor Sampson, in his timely article pointing out distant forum abuses, said that the adoption of his suggested Subdivision 5(b) to Article 1995, Tex. Rev.Civ.Stat.Ann. (Supp.1975), would include “all normal consumer transactions.” He illustrated such transactions as follows: “Thus, suit upon an obligation based on a credit purchase of any consumer good or service — whether an automobile, household furnishings, personal affects or a small loan — presumptively falls within exception 5(b).”

I agree wholeheartedly with the purpose accomplished by the enactment of Subdivision 5(b) of Article 1995, Tex.Rev.Civ.Stat. Ann. (Supp.1975). Furthermore, I agree that it is desirable that a suit for foreclosure of a paving lien should be brought in the county where the land is located. I cannot agree, however, with the majority holding that a paving lien is a “consumer transaction” within the purview of Subdivision 5(b) of Article 1995 simply because a family uses the street in front of the house to come and go and to better accomplish the countless personal, family or household trips.

      . “(a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

      . Findings of Fact
      “1. On August 3, 1971, Ramiro Amaya, and wife, Delia G. Amaya, made, executed, and delivered to Mission Paving Company, Inc., a written Builders, Mechanic’s and Materialmen’s Lien contract in which they promised to pay Mission Paving Company, Inc., the sum of $351.00.
      2. Texas Securities Corporation is presently the owner and holder of the above contract.
      3. The contract is payable at the office of Texas Securities Corporation in the City of San Antonio, Bexar County, Texas.
      4. The above contractual obligation was incurred by Defendants to pay for the cost of constructing certain street improvements abutting - Defendants’ residence in the City of Mission, Hidalgo County, Texas.
      5. The contract was signed by Defendants in the City of Mission, Hidalgo County, Texas.
      6.' The Defendants resided in Mission City, Hidalgo County, Texas, at the time of signing the contract, at the time of commencement of this action, and at the present time.
      7. The property of Defendants abutting the street upon which the paving and improvements were done constitutes the private residence of the Defendants.”
      Conclusions of Law
      “1. Venue in this action is maintainable in Bexar County, Texas pursuant to Tex.Rev.Civ.Stat.Ann. art. 1995, § 5(a), in that Defendants have contracted in writing to perform an obligation in Bexar County.
      2. Tex.Rev.Civ.Stat.Ann. art. 1995, § 5(b) is not applicable to this transaction, in that a contract for paving improvements on a street abutting a private residence does not constitute a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household or agricultural use.”

      . In addition to the fact that no foreclosure could be had on homestead property under the statutory paving lien, the land here involved is situated in Hidalgo County, Texas, and in this connection Section 14 of Article 1995 (1969) provides: “Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

      . Sampson, Distant Forum Abuse in Consumer Transactions: A Proposed Solution, 51 Texas L.Rev. 269, 283 (1973).


author: TUNKS, Chief Justice.

text:
    Fred R. ELDRIDGE et al., Appellants, v. MARSHALL NATIONAL BANK et al., Appellees.
    No. 1073.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 30, 1975.
    Rehearing Denied Sept. 17, 1975.

      George Red, Red & Kemp, William R. Powell, Jr., Lew W. Harpold, Hofheinz & Harpold, Isaac C. Satterwhite, Houston, for appellants.
    Richard E. Green, Asst. Atty. Gen., Austin, Gaines Baldwin, Abney & Baldwin, Marshall, Ben H. Rice, III, Vinson, Elkins, Searls, Connally & Smith, Houston, for ap-pellees.
   TUNKS, Chief Justice.

This is a will construction case. The district court rendered a summary declaratory judgment upon the motion of the Attorney General of Texas, construing the will to establish a charitable trust and holding that all property remaining after specific legacies and bequests passed to the trust under the will. Appellants, Fred R. Eldridge, et al. (the heirs), appeal from the granting of the summary judgment in favor of appel-lees and from the denial of their motion for summary judgment that the charitable trust provisions of the will were invalid.

Hope Pierce Tartt died on July 26, 1961 at the age of 90 years. Appellee, Fred Eldridge, was appointed as temporary administrator of her estate, and he applied to the Probate Court of Harris County for the probate of a holographic will executed by Mrs. Tartt in July 1947. On November 29, 1961, Eldridge brought a suit in a Harris County District Court in the nature of a declaratory judgment action seeking a construction of Mrs. Tartt’s will. On January 9, 1962, the probate court entered an order admitting the will to probate but denying Eldridge’s application for appointment as trustee of the scholarship fund referred to in the will. No appeal was taken from that order.

In March 1964, Eldridge filed a petition to declare heirship in the probate court. In February 1965, the district court entered an order abating the declaratory judgment action, which was still pending, until the issue of the disposition of the estate by will was determined by the probate court.

On January 11, 1973, the probate court rendered an order declaring the heirs of Hope Pierce Tartt and their respective shares and interests in her estate. The court held that none of her real or personal property passed to the scholarship fund but that it passed to her heirs at law under the laws of descent and distribution. The heirs at law, the executors and the Attorney General of Texas, all appealed from the probate court’s order to the district court.

On May 7,1973, the district court entered an order consolidating the declaratory judgment action for construction of the will with the appeals from the probate court. Both sides filed motions for summary judgment and on May 28, 1974, the court rendered its final judgment granting appellees’ motion for summary judgment and denying that of appellants. In so doing, the court held that it was unnecessary for it to determine who were Mrs. Tartt’s heirs at law and the share of each of them in any intestate property, because all of her property passed at death under her will to the scholarship fund, a charitable trust. Appellants excepted to this judgment and gave their notice of appeal.

The appellant heirs at law contend by points of error that the district court had no jurisdiction over this case. Those points of error are overruled. At the time these appeals from the probate court to the district court were perfected, Tex.Prob.Code Ann. § 5 (1956) gave the district court appellate jurisdiction over all probate matters. The amendment of Article 5, Section 8 of the Texas Constitution and of Section 5 of the Probate Code, giving the Courts of Civil Appeals jurisdiction of such appeals from the probate court, did not deprive the district court of jurisdiction of cases in which appeals had been perfected before their effective date. Atkins v. Rayburn, 506 S.W.2d 208 (Tex.Sup.1974). Even if there were some question as to the jurisdiction of the district court over the suit to construe the will while the heirship proceeding was pending in the probate court, that question was removed when the appeal to the district court in the probate proceeding was perfected.

Appellants’ major contention on this appeal is that the trial court erred in holding that the will of Hope Pierce Tartt created a valid public charitable trust. Since public charitable trusts are favored by courts of equity, they will be sustained if “. . . from the four comers of the will, a purpose can be gathered to establish a trust for a class sufficiently definite to be legally ascertained.” Gidley v. Lovenberg, 35 Tex.Civ.App. 203, 79 S.W. 831, 835 (1904, writ ref’d).

Mrs. Tartt’s will first provides for specific cash bequests for various friends and relatives and for funds to provide for perpetual care of her deceased parents’ graves. She next gives her family home in Marshall, Texas, to the First Methodist Church to be used as a parsonage, or alternatively, as a co-operative and boarding house for working women. The will provides that if any of the furnishings in the home are at any time removed therefrom, they are to become the property of the trustees of her estate, “. . . and from the sale of these objects of furniture or furnishings— these moneys are to be added to the Scholarship Trust — That is being arranged”.

After making additional bequests and providing funds for a family monument, the will sets out the provisions which are at issue on this appeal:

Having no obligation and owing no debts — All moneys in Checking Accounts in First National Bank in Houston and Marshall Natl Bank Marshall — after necessary expenses are paid — including Savings Accounts (2) in First National in Houston Savings Account in Second National Bank Houston and Savings Account in Houston National Bank Houston also all bonds in Deposit Box First National in Houston and Bonds for $10,-000. held in Trust by Second National Bank of Houston — these and all real estate — are to form a Scholarship Fund — to be projected into the future Am appointing Marshall National Bank, in Marshall and Charles R. Martin County Auditor, Marshall as my Executors — If at any time Mr. Martin is unable to attend to these duties it is my wish that the Pastor of The First Methodist Church in Marshall be CoExecutor at all times in connection with the Marshall National Bank in Marshall
I hereby disinherit all other persons claiming any interest in the estate whether blood relation or not—

Appellants’ first contention is that the will does not manifest a present intention to create a charitable trust. In deciding this question, we must look to the four corners of the instrument and determine its meaning from its language. Powers v. First Nat. Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273 (Tex.Com.App.1942, opinion adopted); Restatement (Second) of Trusts § 351 (1959).

Appellants point to the words used by Mrs. Tartt in connection with the scholarship fund. She provides that if any of her home furnishings are removed, they are to become the property of the trustees of her estate and all proceeds derived from their sale are “to be added to the Scholarship Trust — That is being arranged.” She also provides that certain specified monies “. and all real estate — are to form a Scholarship Fund — to be projected into the future”, (emphasis added)

The cases which appellants cite are distinguishable. In In Re Sorenson’s Estate, 370 S.W.2d 225 (Tex.Civ.App.—El Paso 1963, writ ref’d n. r. e.), it was held that two letters from the deceased to the appellant failed to meet the test of a holographic will. In her letters the decedent requested the appellant to have a will drawn up for her and expressed her desire to leave all her property to him. The Court held that there was no evidence in the letters that the decedent intended for them to constitute her will or to transfer or dispose of any of her property. In Boyles v. Gresham, 260 S.W.2d 144 (Tex.Civ.App.—Dallas 1953), rev’d on other grounds, 153 Tex. 106, 263 S.W.2d 935 (1954), the Court held that the statement in a holographic will that the testator was “inclined to play the children,” even if construed to mean that he was inclined to leave his money to children, did not show that he had actually decided to leave his money to children. Unlike Soren-son, there is no contention by appellants in this case that Hope Pierce Tartt did not intend for the instrument of July 1947 to be her last will and testament. Unlike Boyles, the words she used do not express a mere inclination to leave her property to a scholarship fund but show her present intention to do so.

Appellants take the words “is being arranged” and “are to form” out of context and argue that they demonstrate that Mrs. Tartt was referring to something then occurring extrinsic to the will or to something which she intended in the near future to cause to occur. However, the correct rule of construction was stated in Cleveland v. Cleveland, 89 Tex. 445, 35 S.W. 145, 147 (1896), as follows:

The intention of the testator, as shown by the language used in the instrument, must be ascertained by considering the entire instrument, and the language of a single clause of it will not govern what is the evident intention in the use of that language, when read in connection with the other provisions.

When the provisions relied upon by appellants are considered in the context of the entire instrument, their apparent intent is that, after carrying out her directions and paying necessary expenses, the executors are to form and to project into the future a scholarship fund. There is no question as to the testamentary character of the other provisions in the will. It would be unreasonable to question Mrs. Tartt’s testamentary intent as to the scholarship fund provisions since they involve the vast bulk of her estate. In this provision, she directs that “[a]ll moneys (sic) ... all bonds . and all real estate” are to form the scholarship fund. This evidences an intention that after her death the mentioned properties are to be used to form a scholarship fund.

We hold that the will of Hope Pierce Tartt manifests a present intention to create a testamentary trust.

Appellants next argue that the will does not create a valid charitable trust because it does not designate the purpose of the scholarship fund and because it does not designate whether it is to be a public or private charity. Appellants cite Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223, 228 (1935), in support of their contention. In that case, the Attorney General sought a temporary injunction against the executors of an estate in aid of the testator’s allegedly charitable bequests. In his will, the testator left the final disposition of his estate to the personal discretion of his sister and his executor. He provided that within five years of his death, his estate was to be sold and the proceeds thereof, at the discretion of his sister and his executor, were to be given to . . . such charities and worthy objects as they . . . shall determine ..’ ” Id. at 224. (emphasis added) It was held that this provision failed to create a valid public charitable trust. The Court noted that many “worthy objects” are neither public nor charitable, and that

[w]hen a fund or property is so given that it may or may not be used for charity, or . for a charitable object of a public character, without violating the directions of the will, the case is not one for enforcing the gift as a charity in a suit by the Attorney General. ... In this respect it is evident that the will creates a purely personal trust in the executor.

Id. at 228-29.

Appellants argue that in the case at bar, Mrs. Tartt’s will is even more vague than the will involved in Allred, because she not only does not specify that the scholarship fund is to be used exclusively for public charitable purposes but she fails to even use the word charity. Appellants argue that, in order to validate the scholarship fund provision, the courts would have to prohibit the trustee from using the fund for non-charitable and non-public purposes and that it would be necessary for the courts to designate the portion of the public to benefit from such scholarship fund. Appellants assert that this would amount to the courts making a will for the testatrix, in violation of the laws of this state. Allred v. Beggs, supra at 229.

We disagree. Unlike the will in Allred, which created a purely personal trust in the executor, the will in the case at bar limits the executors’ use of the estate to a scholarship fund, which is, by definition, a valid charitable use. See Russell v. Allen, 107 U.S. 163, 172, 2 S.Ct. 327, 27 L.Ed. 397 (1883); Powers v. First Nat. Bank of Corsicana, supra, 161 S.W.2d at 280; Restatement (Second) of Trusts §§ 368, 370.

In Boyd v. Frost Nat. Bank, 145 Tex. 206, 196 S.W.2d 497 (1946), the Court held valid as a public charitable trust a will provision devising all personal property to a trust, the net income from which was to be given to such charities as the trustee in his absolute discretion would select. In answer to the heirs’ argument that a bequest to charitable purposes would include gifts to private charities, the Court said that any ambiguity in the language which the testator used must be resolved in favor of legality. Id. at 503. In Wooten v. FitzGerald, 440 S.W.2d 719, 723 (Tex.Civ.App.—El Paso 1969, writ ref’d n. r. e.), the Court held that it is not necessary for the testator to use the word charity in order to create a valid charitable trust. In Taysum v. El Paso Nat. Bank, 256 S.W.2d 172 (Tex.Civ.App. — -El Paso 1952, writ ref’d), the Court was asked to decide whether a will provision leaving the residue of an estate to set up a research foundation in electricity created a valid public charitable trust. The Court held the provision to be valid, although the heirs argued that it was not clear that the research would not be conducted for private profit. The Court said that although the matter was not free from doubt, “. . .in such circumstances the construction which will give it effect will be adopted and that which would defeat it rejected.” Id. at 176.

Appellants next argue that the scholarship fund provision is invalid because it fails to name trustees or to transfer property to another person to hold in trust for charitable purposes.

Appellants rely on City of Haskell v. Ferguson, 66 S.W.2d 491 (Tex.Civ.App.—Eastland 1933, no writ), for the proposition that Mrs. Tartt’s designation of properties to the scholarship fund was not sufficient to establish a charitable trust absent the actual transfer of title to another person. In that case, the temporary administrator brought suit to construe the following provision of the decedent’s will: “I want a hospital built . in memory of my husband . to cost $50,000 . . .; if I live I expect to have it done myself.” The will did not establish a charitable fund, it named neither an executor nor a trustee, nor was there any provision for operating or maintaining the hospital once it was built. Due to these practical obstacles to carrying out the will provision, the Court declared it invalid. However, in the case at bar, Mrs. Tartt’s will establishes a fund. This fund can be effectuated by the executors, a bank with trust powers and the pastor of a church.

It is a general rule of equity that a trust will not fail for lack of a trustee; if a trustee be named and refuses to act or the instrument attempting to create a trust fails to name a trustee, the court will appoint a trustee to carry out the manifest intent of the settlor. Taysum v. El Paso Nat. Bank, supra, 256 S.W.2d at 176.

Appellants cite The Texas Trust Act, Tex.Rev.Civ.Stat.Ann. art. 7425b-7 (1960) and the Restatement (Second) of Trusts § 349 for the proposition that it was necessary for Mrs. Tartt to transfer title to her property to another person to hold it upon a charitable trust. The Texas Trust Act only applies to private trusts. Although charitable trusts may be created in the same way as private trusts, they may also be created without complying with the strict requirements governing private trusts. The rule is stated in Comment e to Section 397 of the Restatement of Trusts, as follows:

If the owner of property devises or bequeaths it for charitable purposes, and not only does not name a trustee but also does not use language indicating that the property is to be held upon trust, nevertheless the disposition is valid. Thus, if a testator bequeaths a certain sum “to charity,” a charitable trust is created. So also, a charitable trust is created where the testator directs that a certain sum •should be used to aid needy students, or to assist the poor.
In such cases the court will either appoint a trustee to carry out the purpose or will approve a scheme to carry it out .... Id. at 287.

Appellants also contend that the scholarship fund provision is void for vagueness as to beneficiaries. We have held that any ambiguity in the instrument will be construed in favor of the validity of the charitable trust, so that it will be limited to public charitable uses. Although a private trust must provide for definitely ascertainable beneficiaries in order to satisfy the rule against perpetuities, no such rule is applicable in the case of charitable trusts. Restatement (Second) of Trusts § 364, Comment a at 244. The distinction between private and charitable trusts was there stated as follows:

In the case of a charitable trust the persons who are to receive benefits from the trusts need not be designated; the beneficial interest is not given to individual beneficiaries, but the property is devoted to the accomplishment of purposes beneficial to the community. These purposes are ordinarily enforceable not at the suit of persons who are to receive benefits under the trust, but at the suit of the Attorney General, as representative of the community . . ., although there may be beneficiaries having a special interest in the enforcement of the trust who can maintain a suit to enforce it. Id.

In order to create a valid public charitable trust, the beneficiaries must be indefinite in number. Otherwise, the trust will be a private one. Russell v. Allen, supra, 107 U.S. at 167, 2 S.Ct. 327; Powers v. First Nat. Bank of Corsicana, supra, 161 S.W.2d at 283; Taysum v. El Paso Nat. Bank, supra, 256 S.W.2d at 175. In this case, Mrs. Tartt’s will gives sufficient identification to the class of beneficiaries so that the trustees will be able to effectuate her intent.

Appellants also contend that the scholarship fund provision lacks the material essential elements of a trust because it does not expressly charge the donee with the duty of holding the property in trust or of disposing of it in some particular way, but merely expresses a wish as to the disposition to be made. Appellants cite McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412 (1887), and 57 Tex.Jur.2d, Trusts § 28. (1964), for the proposition that in order for a trust to be created the words of the testator must be construed as imperative. This proposition is only applicable where the issue is whether or not the capacity in which a person holds property is as a trustee or in his own right, which issue is not presented here. Whoever administers the scholarship fund can only hold the property on behalf of such fund and not for himself.

All of appellants’ points of error asserting the invalidity of the scholarship fund provision in the will of Hope Pierce Tartt are overruled.

Appellants next contend that the trial court erred in overruling the motion to quash the pleadings of the Attorney General of Texas because he has a conflict of interests. They argue that he represents, on the one hand, the State Comptroller of Public Accounts for the collection of inheritance taxes upon Mrs. Tartt’s intestate properties; and that, on the other hand, he represents the public by claiming that these same properties passed testate to a public charitable trust as devisee.

This point is overruled. Tex.Rev.Civ. Stat.Ann. art. 4412a, § 2 (1966) provides as follows:

For and on behalf of the interests of the general public of this state in such matters, the Attorney General shall be a necessary party to . any suit or judicial proceeding, the object of which is:
a. To terminate a charitable trust or to distribute its assets to other than charitable donees, or
c. To construe, nullify or impair the provisions of any instrument, testamentary or otherwise, creating or affecting a charitable trust . . ..

There were certain properties in the estate of Mrs. Tartt at the time of her death which were omitted from her will. These included her jewelry and funds on deposit at the Texas National Bank, San Jacinto Savings & Loan Association and Home Savings & Loan Association. Those items were of a value of $215,000. The appellants contend that even if it be held that the will created a charitable trust, the gifts to it were specifically named and did not include these items so that as to them Mrs. Tartt died intestate.

The trial court’s judgment recites that “. . . all undistributed properties and claims belonging to the Estate of Hope Pierce Tartt passed under her Will, at the time of her death, to form a Scholarship Fund. . . .” We overrule the contention of the appellants that the trial court’s judgment should be reversed because Mrs. Tartt died intestate as to some of her property. The question as to that facet of the case is now moot. The property as to which Mrs. Tartt died intestate was the first to be used for the payment of debts, expenses of the estate and cash legacies. Thompson v. Thompson, 149 Tex. 632, 236 S.W.2d 779 (1951); Currie v. Scott, 144 Tex. 1, 187 S.W.2d 551 (1945); 18 M. Woodward & E. Smith, Texas Probate and Decedents’ Estates § 952 (1971); 61 Tex.Jur.2d, Wills § 231 (1964). The record reflects that as of December 31, 1973, the amount paid out of the estate for claims, legacies and expenses, exclusive of the estate and inheritance taxes for which a refund claim is pending, was in excess of $700,000. Those properties as to which Mrs. Tartt died intestate have, therefore, long since been spent so that the question as to the rights of the heirs to them is moot.

The judgment of the trial court is affirmed.


author: McCLOUD, Chief Justice.

text:
    Gloria HART et al., Appellants, v. Helen Sue ROGERS, guardian, Appellee.
    No. 4788.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 8, 1975.
    Rehearing Denied Aug. 29, 1975.

      Joe Bruce Cunningham, Hudson, Keltner, Smith, Cunningham & Payne, James W. Jameson, Puff & Jameson, Fort Worth, for appellants.
    Frank L. Jennings, Jennings, Montgomery & Dies, Graham, for appellee.
   McCLOUD, Chief Justice.

Plaintiffs, Glenn Moss Rogers and Helen Sue Rogers, Guardian of the Estates of Gregg Allen Rogers and Laura Gay Rogers, minors, sued defendants, Gloria Hart, Kim Franklin, Mike Franklin, Thelma Holt Hart and Neil S. Carlock, Temporary Administrator of the Estate of Don Leander Hart, deceased, in trespass to try title. Both plaintiffs and defendants claim title under the will of Bessie Holt. The property in question is located in Palo Pinto County and will be referred to as the “Brown Place” (consisting of approximately 840 acres), the “Scott Place” (consisting of approximately 991 acres) and the “River Place” (consisting of approximately 2,538 acres). Defendants further claim title to the River Place and Scott Place under two deeds executed by Bessie Holt to Don Leander Hart.

Don Leander Hart, who died on July 12, 1973, without issue, was the grandson of Bessie Holt, who died on September 4,1966. The property in question was devised to Don Leander Hart under Bessie Holt’s will. Plaintiffs, the great-grandchildren of Bessie Holt, contend that when Don Leander Hart died without children the property vested in them.

Bessie Holt was in possession of the property in question exercising all apparent incidents of ownership until her death. The trial court construed the will in favor of plaintiffs and based on findings of the jury held there had been no delivery of the deeds to the River and Scott places.

Defendants have appealed. We affirm.

Bessie Holt’s will dated August 5, 1965, provides in part:

“All the rest and residue of my property of whatsoever kind or wheresoever situated of which I may die seized, or possessed of or entitled to, I give, devise and bequeath unto my beloved grandson, Don Leander Hart, of Palo Pinto County, Texas, in fee simple, with the further provision that he the said Don Leander Hart, should precede me in death, or if he should die without issue leaving no blood descendants the residue and remainder of the property thus conveyed to him by me under this will, shall descend share and share alike to the children of my granddaughter the said Helen Sue Johnson Rogers, in fee simple.” (Emphasis added)

Defendants argue the will should be construed to mean the gift over to the Rogers children would take effect only if Don Leander Hart should die without issue before Bessie Holt’s death. They say the critical point in time at which to determine the devisee of Bessie Holt’s residuary estate is at Bessie Holt’s death.

The rule is well established in Texas where the testator vests the first taker with the fee, as opposed to a life estate or term for years, but further provides for a gift over in the event of the first taker’s death, and such death is coupled with a contingency which may or may not take place, the gift over, unless controlled by other provisions of the will, takes effect upon the first taker’s death at any time, whether before or after that of the testator.

In St. Paul’s Sanitarium v. Freeman, 102 Tex. 376, 117 S.W. 425 (1909), the will provided:

“Second. I give and bequeath to Robert M. Freeman, of Dallas, County, Texas, all my property real and personal and mixed, that I may own and be possessed of at the time of my death.
Third. It is my will and desire that in the event the said Robert M. Freeman shall die without issue then it is my will and desire that all of my said property willed as aforesaid be given to St. Vincent de Paul Institution or order, for the benefit of the sick Sisters of that order in Dallas County, Texas.”

Freeman sought a construction of the will to determine if his estate was subject to being defeated if he should die without issue. The court said:

“We recognize the fact that upon this question there is a decided conflict of authority. It seems to us that this conflict is settled in England by the case of O’Mahoney v. Burdett, L.R. 7 H.L. 388, in which it is held that ‘a bequest to A., and if he shall die unmarried or without children to B., is an absolute gift to A., defeasible by an executory gift over in the event of A. dying at any time unmarried or without children.’ In the American courts the cases which hold the contrary doctrine are quite numerous. On the other hand, there is a very respectable array of American authority which holds in accordance with O’Mahoney v. Burdett, supra. In Britton v. Thornton, 112 U.S. 526, 532, 5 S.Ct. 291, 294, 28 L.Ed. 816, Mr. Justice Gray says: ‘It is equally clear that, upon her death under age and without issue then living, her estate in fee was defeated by the execu-tory devise over. When, indeed, a devise is made to one person in fee, and ‘in case of his death’ to another in fee, the absurdity of speaking of the one event which is sure to occur to all living as uncertain and contingent has led the courts to interpret the devise over as referring only to death in the testator’s lifetime. 2 Jarman on Wills, c. 48; Briggs v. Shaw, 9 Allen (Mass.) 516; Lord Cairns in O’Mahoney v. Burdett, L.R. 7 H.L. 388, 395. But when the death of the first taker is coupled with other circumstances, which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under the circumstances indicated, at any time, whether before or after the death of the testator. O’Mahoney v. Burdett, above cited; 2 Jarman on Wills, c. 49’ And the decision of the case was in accordance with the principles so announced. This decision has been cited and followed in Summers v. Smith, 127 Ill. 649, 21 N.E. 191, in Smith v. Kimbell, 153 Ill. 378, 38 N.E. 1029, in Matter of New York, etc., Ry. Co., 105 N.Y. 95, 11 N.E. 492, 59 Am.Rep. 478, and in Shadden v. Hembree, 17 Or. 25, 18 Pac. 572. To the same effect are Parish’s Heirs v. Ferris, 6 Ohio St. 563, Moore v. Moore, 12 B.Mon. (Ky.) 651, and Daniel v. Thomson, 14 B.Mon. (Ky.) 662, to which others might be added.
It follows that in our opinion the death without lawful issue, referred to in the clause of the will, means the death of Freeman at any time, and not his death before that of the testator.”

The rule announced above has been followed in West v. Glisson, 184 S.W. 1042 (Tex.Civ.App.—Austin 1916, writ ref’d); Darragh v. Barmore, 242 S.W. 714 (Tex.Com.App.1922); Pool v. Sneed, 173 S.W.2d 768 (Tex.Civ.App.—Amarillo 1943, writ ref’d w. o. m.); Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374 (1937); and Austin Presbyterian Theological Sem. v. Moorman, 391 S.W.2d 717 (Tex.1965). See also Harold Marsh, Jr., Construction of “Die Without Issue” in Devises of Realty, 20 Tex.L.Rev. 212 (1941).

Flores v. De Garza, 44 S.W.2d 909 (Tex.Com.App.1932); Bloodworth v. Bloodworth, 467 S.W.2d 218 (Tex.Civ.App. —Eastland 1971, writ ref’d n. r. e.); and Harrison v. Brown, 416 S.W.2d 613 (Tex.Civ.App.1967), writ ref’d n. r. e. per curiam, 422 S.W.2d 718 (Tex.1967), relied upon by defendants are distinguishable. In those cases the first taker was granted only a life estate or term for years.

We find nothing in the will under consideration which would remove it from the general rule announced in St. Paul’s Sanitarium, supra. We hold the gift over to the plaintiffs took effect upon the death of Don Leander Hart without issue.

The trial court held, based upon jury findings, neither the Scott Place nor the River Place deeds were delivered.

The Scott Place deed was dated August 6, 1956, and acknowledged January 2, 1958. The River Place deed was dated and acknowledged October 1, 1960. Neither deed was filed for record during the life of Bessie Holt.

Special Issue No. 1 reads as follows:

“Do you find from a preponderance of the evidence that Bessie Holt did not place the deed from herself to Don Leander Hart dated August 6, 1956, beyond her control with the intention that it become presently operative as a conveyance of the Scott Place?
Answer ‘She did not’ or ‘She did.’
ANSWER: She did not.”
Special Issue No. 3 reads as follows:
“Do you find from a preponderance of the evidence that Bessie Holt did not place the deed from herself to Don Leander Hart dated October 1, 1960, beyond her control with the intention that it become presently operative as a conveyance of the River Place?
Answer ‘She did not’ or ‘She did.’
ANSWER: She did not.”

Defendants objected to the words “beyond her control” contained in the issues and contend such words gave the jury an improper standard to be used in determining whether there was delivery of the deeds. They argue that delivery is a question of intention on the part of the grantor; that there can be delivery even if no manual delivery of the deed has been made and the grantor retains control of the deed. Defendants also challenge the word “presently” asserting this is an improper standard because a grantor can execute and deliver a valid conveyance to take effect in the future.

In the early case of Steffian v. Milmo Nat. Bank, 69 Tex. 513, 6 S.W. 823 (1888), the court said:

“It is elementary law that the delivery of a deed is requisite to its validity as a conveyance. To take effect, it is quite as necessary that it should be delivered as that it should be signed. To complete a delivery in its legal sense, two elements are also essential. The instrument must not only be placed within the control of the grantee, but this must be done by the grantor with the intention that it shall become operative as a conveyance.”

The court in Gilbert v. McSpadden, 91 S.W.2d 889 (Tex.Civ.App.—Waco 1936, writ ref’d), stated:

“It is also well settled that in order to constitute a delivery of a deed the facts and circumstances in evidence must show an intention on the part of the grantor that the deed shall presently become operative and effective. 14 Tex.Jur. 821; 18 C.J. 197; 8 R.C.L. 980; Cox v. Payne, 107 Tex. 115, 174 S.W. 817.” (Emphasis added)

While discussing the distinction between physical possession of a deed and control over the deed the court approved the following language:

“ ‘And while the rule that the grantor must part with all dominion and control over his deed does not mean that he must put it out of his physical power to procure repossession of it, nevertheless, if the deed remains within the grantor’s control and liable to be recalled, there is, according to almost unanimous authority, no delivery, notwithstanding that he has parted with its immediate possession.’ ”

We hold, that in order to constitute legal delivery it is not necessary that a deed be manually transmitted to the grantee, nor is it always necessary that a deed be placed out of the grantor’s physical possession, but it is essential that the grant- or relinquish dominion and control over the deed. 26 C.J.S. Deeds § 42; 23 Am.Jur.2d, Deeds, § 89; 19 Tex.Jur.2d, Deeds, § 84; 129 A.L.R. 11; 87 A.L.R.2d 787; Kincheloe v. Kincheloe, 152 S.W.2d 851 (Tex.Civ.App.—Amarillo 1941, writ ref’d w. o. m.); Sides v. McDonald, 228 Ark. 673, 310 S.W.2d 16 (1958); Dallas Joint Stock Land Bank of Dallas v. Burck, 102 S.W.2d 1074 (Tex.Civ.App.—Waco 1937, writ dism’d); Sgitcovich v. Sgitcovich, 229 S.W.2d 183 (Tex.Civ.App.—Galveston 1950, writ ref’d n. r. e.).

Defendants rely upon Henry v. Phillips, 105 Tex. 459, 151 S.W. 533 (1912) and Taylor v. Sanford, 108 Tex. 340, 193 S.W. 661 (1917), in support of their contention that it is not essential that a grantor lose dominion and control over a deed. Language supporting defendants’ argument is found in the opinions. However, it is clear in both cases the grantor did part with dominion and control over the deeds. In Eckert v. Stewart, 207 S.W. 317 (Tex.Civ.App.—Amarillo 1918, writ ref’d), the court, after reviewing Henry and Taylor, held:

“It is elementary that, in order for a deed to operate as a conveyance, there must have been delivery with the intent and purpose on the part of the grantor to relinquish control of the deed. Steffian v. Milmo Bank, 69 Tex. 513, 6 S.W. 823.”

Chief Justice Hickman in Ragland v. Kelner, 148 Tex. 132, 221 S.W.2d 357 (1949), after citing Henry and Eckert, said:

“The test established by those cases is whether or not the grantor parted with all dominion and control over the instrument at the time he delivered it to the third person, with intent at the very time of its delivery that it take effect as a conveyance.”

We hold the court did not err in overruling defendants’ objections to Special Issues 1 and 3, or in refusing defendants’ requested special instructions.

Defendants say the court erred in excluding the testimony of Odean Weldon and Jeanne Jenkins that it was common knowledge in the community of Graford that Bessie Holt had deeded some or all of her property to Don Leander Hart.

5 Wigmore on Evidence, 3rd Ed. § 1587, page 556, states it is generally conceded that title cannot be evidenced by reputation evidence; however, there may be cases “in which possession should be thus provable, where adverse possession is to be shown.”

Defendants contend a different rule ap-. plies in Texas and cite 2 McCormick and Ray, Texas Law of Evidence, § 1322, page 174 which states:

“It is generally held that the application of the present principle is limited to boundaries and that title cannot be proved by reputation evidence, and this is the view of the Court of Criminal Appeals. But no such limitation obtains in civil cases. In a number of instances general reputation in the neighborhood as to the ownership of property at the time in question has been received. This is especially true where the issue is as to whether a person had knowledge of such ownership or claim of ownership.” (Emphasis added)

Several of the cases cited by McCormick and Ray support the proposition that general reputation evidence of ownership is admissible to show notoriety of claim, but the cases do not support the proposition that reputation evidence is admissible to show actual ownership of property. The first case cited by McCormick and Ray in support of its statement is Rice v. Melott, 32 Tex.Civ.App. 426, 74 S.W. 935 (1903, no writ), an adverse possession case, wherein the witness was permitted to state: “I have always heard it belonged to Frank Egling.” The court held that reputation evidence was admissible to show “the openness and notoriety of claim on the part of Egling”. The next case cited is Carlisle v. Gibbs, 44 Tex. Civ.App. 189, 98 S.W. 192 (1906, no writ), where the court was again speaking of the notoriety of claim. The court said:

“If Polly Ryan lived on the land and laid claim to it, and it was generally known among those living in the vicinity of the land that she claimed the land, it was a circumstance which, taken with the circumstance aforementioned, might show that while the legal title was in McKim, he knew, or ought to have known, that Polly Ryan was asserting title to the land. Also, on the presumption of a grant, or rather proof of a deed by circumstances, we think general notoriety as to the claims of Polly Ryan to the land should have been admitted. This principle was established in the case of Dailey v. Starr, 26 Tex. 562, where it was held: ‘Nor do we think there was error in permitting the plaintiffs below to make proof of the notoriety of their claim of title. Such evidence tended to show acquiescence in their claim by Aranjo and his heirs, and to strengthen the presumption that the title had passed from them.’ That authority has • never been questioned, but has met with approval in a number of cases. That rule would not justify evidence of general reputation as to the real ownership of the land, but the evidence must be confined to the general notoriety of the claim of Polly Ryan to the land, that being allowable as tending to show that McKim knew she was claiming it. Rice v. Melott, 32 Tex.Civ.App. 426, 74 S.W. 935.” (Emphasis added).

We think Miller-Vidor Lumber Co. v. Schreiber, 298 S.W. 154 (Tex.Civ.App.—Beaumont 1927, writ ref’d); Jackson v. Piper, 28 S.W.2d 240 (Tex.Civ.App.—Waco 1930, no writ); and Price v. Humble Oil & Refining Co., 152 S.W.2d 804 (Tex.Civ.App.—Dallas 1941, writ ref’d) cited in the McCormick and Ray treatise likewise essentially hold that reputation evidence of ownership is admissible to show notoriety of a person’s claim.

In Carlisle v. Gibbs, 57 Tex.Civ.App. 592, 123 S.W. 216 (1909, writ ref’d), appellants complained because they were not permitted to introduce testimony that it was the general reputation in the community that Polly Ryan owned the land. The court said:

“Each of the witnesses mentioned in these assignments was permitted to state that Polly Ryan’s claim to the land was notorious and was generally known in the neighborhood, and this was as far as they should have been permitted to testify upon this issue. It goes without saying that the opinion of the community in general as to the validity of. Polly Ryan’s claim was not admissible for any purpose, and the testimony as to the general reputation in the neighborhood as to who owned the land would only be admissible for the purpose of showing the notoriety of Polly Ryan’s claim, and, as before said, this fact was shown by undisputed evidence admitted without objection.”

We hold that general reputation evidence of ownership is admissible for the limited purpose of showing the notoriety of a person’s claim, Dominy v. Dominy, 305 S.W.2d 389 (Tex.Civ.App.—Houston 1957, no writ), but not admissible to show actual ownership. Green v. City of San Antonio, 282 S.W.2d 769 (Tex.Civ.App.—San Antonio 1955, writ ref’d n. r. e.) and McDaniel v. Cherry, 353 S.W.2d 280 (Tex.Civ.App.—Texarkana 1962, writ ref’d n. r. e.).

The testimony of Odean Weldon and Jeanne Jenkins was offered generally and not limited for the purpose of showing the notoriety of Don Leander Hart’s claim to the property. The court did not err in excluding the testimony. Gottschald v. Reaves, 457 S.W.2d 307 (Tex.Civ.App.—Houston (1st Dist.) 1970, no writ); and Singleton v. Carmichael, 305 S.W.2d 379 (Tex.Civ.App.—Houston 1957, writ ref’d n. r. e.).

The trial court excluded the testimony of Thelma Hart, mother of Don Leander Hart, that she was present and saw Bessie Holt manually hand the Scott Place deed to Don Leander Hart. Defendants argue that the court erred because the evidence did not concern a transaction with Don Leander Hart. We disagree. Article 3716, Tex.Rev. Civ. Statutes, prohibits an incompetent witness from testifying not only as to statements made by the decedent to the witness, but also as to conversations and transactions which occurred between the deceased and a third party.

The court in Furr v. Furr, 440 S.W.2d 367 (Tex.Civ.App.—Fort Worth 1969, writ ref. n. r. e.), stated:

“We hold that the evidence was properly excluded. In International Travelers’ Ass’n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040 (1931) the authoritative cases up to time of the opinion were cited, all indicated as honoring the decision of Parks v. Caudle, 58 Tex. 216 (1882), language from which was quoted, as follows: ‘In our opinion, a party is prohibited from testifying, not merely as to statements by the deceased to him, or transactions between him and the deceased, but also as to such statements to or transactions between deceased and third persons, and that, too, although occurring when the witness had no interest therein. The statute had in view, primarily, a transaction between parties, one of whom had since died, and whose heirs or representatives were engaged in a suit with the survivor. As to such a transaction neither party was allowed to testify. The survivor should not, because the mouth of the other party to the transaction was forever closed. But the heir or representative, if perchance he knew aught of the facts, although it was not a transaction with him, was also forbidden to testify about it; for to allow him to do so, would be to give him the advantage over one whose mouth the statute had closed.’ (Emphasis supplied.)”

See also Byers v. Parker, 16 S.W.2d 1110 (Tex.Civ.App.—Amarillo 1929, writ ref’d).

It is also well settled that the term transaction includes a unilateral event where the decedent is the sole participant and the witness merely observes the conduct of or what occurred to the deceased. International Travelers’ Ass’n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040 (1931).

We have considered all points of error and all are overruled. The judgment of the trial court is affirmed.


author: WALTER, Justice.

text:
    TEXACO, INC., Appellant, v. E. H. PURSLEY, Jr., et al., Appellees.
    No. 4793.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 8, 1975.
    Rehearing Denied Aug. 29, 1975.

      Aubrey L. Roberts Jr., Mays, Moore, Dickson & Roberts, Inc., Sweetwater, for appellant.
    Frank Scarborough, Scarborough, Black, Tarpley & Scarborough, C. R. Dickenson, Wagstaff, Harrell, Pope, Alvis, Dickenson & Erwin, Abilene, for appellees.
   WALTER, Justice.

This is a personal injury suit filed by E. H. Pursley, Jr. against Texaco, Inc., Crall Products, Inc., Merchants Fast Motor Lines, Inc. and Jimmy Davis. Following Pursley’s non-suit as to Crall and Merchants, Texaco named them as third party defendants. Pursley recovered a judgment against Texaco and Jimmy Davis for $134,156.06. Texaco has appealed.

J. F. Chaney and two other Texaco employees went to Merchants warehouse to pick up a Crall filter. Chaney described the filter, as being about six feet high, about twenty-two inches wide, and about six feet long. The filter was not packaged or crated and was mounted on skids which lifted the unit off the floor about six inches. The filter weighed about 1,075 pounds. One end of the unit was elevated by a wooden block. Chaney pulled the packing list from the unit and then heard someone hollering. The packing list was in a cellophane envelope about four inches square. Chaney testified the packing list was attached to the equipment with a gray colored adhesive tape and it was a little stouter than ordinary adhesive tape. When Chaney looked up after pulling the packing list, he saw Pursley trying to hold the filter as it was falling. The filter fell on Pursley’s left leg.

The jury found that Texaco, acting through its agents, servants and employees, was negligent in pushing or pulling upon the Crall filter without regard to its stability which was a proximate cause of the accident in question. Texaco contends there is no evidence or there is insufficient evidence to support these findings and such findings are against the great weight and preponderance of the evidence.

The testimony of Chaney and Pursley and other facts and circumstances in evidence constitute some evidence of probative force and support the findings of negligence and proximate cause.

In Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.1968) at page 329, the court said:

“There is also evidence to support the jury’s findings that the acts of negligence on the part of Otis were proximate causes of the accident. As stated, there is evidence that the unprotected moving handrail would exert a pulling effect upon one coming into contact with the rail from the side. Further, such contact would tend to pull the person coming into contact with the rail toward the open space left between the escalator and the balcony railing. Under these circumstances, a fact issue was created as to whether it was foreseeable that some nature of injury might occur from one coming into contact with the moving handrail from the side and being pulled toward the opening. Otis argues that it should not be required to foresee that a person might drape himself over the moving handrail in order to reach a screaming child. However, it is not necessary that Otis be charged with foreseeing the exact manner in which the injury occurred. It is sufficient that Otis ‘should reasonably have anticipated consequences or an injury of the general nature of that which ensued.’ Port Terminal Railroad Assoc, v. Ross, 155 Tex. 447, 289 S.W.2d 220, 224 (1956).”

We have considered the entire record and hold the findings of negligence and proximate cause are not against the great weight and preponderance of the evidence.

Pursley was an employee of Rig Edwards Oil Company. Tires belonging to Edwards were delivered to Merchants’ warehouse and stored there until Edwards needed them. Pursley was working with the tires and loading them at the warehouse sometime before the accident. Pursley testified he was standing still approximately two feet from the filter and the first indication something was wrong was when the filter hit his shoulder. Neither Edwards’ employees nor Texaco’s employees were restricted to any particular portion of the warehouse. The arrangement for storing the tires was for the mutual benefit of Edwards and Davis whom the jury found was acting as an independent contractor for Merchants.

Texaco contends Pursley was a licensee as a matter of law and if not a licensee as a matter of law, a fact issue existed as to whether he was a licensee as to Texaco. We find no merit in these contentions because Texaco’s employees and Edwards’ employees were all invitees of Davis.

In Hernandez v. Heldenfels et al., 374 S.W.2d 196 (Tex.1963), the court said:

“ . . .In our opinion, Hernandez as a servant of the owner of the property ■going from one place to another within the confines of the plant was not a licensee of Heldenfels. His legal status was akin to that of an invitee in that the occupancy of Heldenfels was not of such a nature that employees of Southwestern Oil & Refining Company had no right to be upon the premises except by leave of Heldenfels.”
“ . . . Both, in a sense, were invitees of the owner and the fact that the roadway was a private way does not vary the legal consequences of substandard action from that encountered when two persons are equally entitled to make use of a public road. Each owes a duty to prevent injury to the other through negligence.”

In J. A. Robinson Sons, Inc. et al. v. Ellis et al., 412 S.W.2d 728 (Tex.Civ.App.—Amarillo 1967, writ ref. n.r.e.), the court said:

“Ellis was described as a field auditor whose duties included checking the time of Bowden’s employees and materials used in the construction job in accordance with the written contract between El Paso and Bowden. Ellis had duties to perform for his employer on the premises. Bowden was not given exclusive control of the premises, nor can it be said Robinson was given such exclusive control of the premises. We conclude Ellis’ status as to both Bowden and its subcontractor, Robinson was that of an invitee and not a licensee. Hernandez v. Heldenfels, 374 S.W.2d 196 (Supreme Court 1963). In the latter case there was no evidence the owner of the premises granted the occupants the exclusive use of the premises. In the instant case not only did the owner of the premises not grant the occupant the exclusive use of the premises, but El Paso was specifically permitted by its contract to place employees on the construction site to check the contractor’s employees time and the materials used. Ellis not only had a right to be on the premises, but his duties were directly related to Bowden’s performance of the construction contract. Ellis was on the premises in furtherance of his employer’s interests. He was an invitee both as to Bowden and Robinson.”

Texaco offered into evidence the abandoned original petition of Pursley wherein he alleged specific acts of negligence against Crall, Merchants, Texaco and Davis. This pleading was offered on the theory it was inconsistent with Pursley’s position at the time of trial. He went to trial on his first amended original petition and alleged that only Texaco and Davis were guilty of negligence that proximately caused his injuries. The court refused to admit the abandoned pleading. Texaco relies on Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (1956) in support of its position that the court erred in refusing to permit it to introduce Pursley’s abandoned original petition. Long holds that an admission against interest in an abandoned pleading may be used in evidence against the pleader.

Texaco’s bill of exception revealed Purs-ley had settled with Crall and Merchants. Pursley did not testify to anything inconsistent with his original petition. In Alexander v. Harris, 254 S.W. 146, 149 (Tex.Civ.App.—Fort Worth 1923, writ ref’d), the court said:

“We overrule that connection, since it is well settled that the doctrine invoked applies only as between inconsistent remedies or demands; and to make them inconsistent one action must allege what the other denies, or the allegations in one action must necessarily repudiate or be repugnant to the other.”

We hold the original petition is not inconsistent with Pursley’s trial pleadings.

The court properly excluded from the jury the fact Crall and Merchants had been dismissed from the lawsuit on motion of Pursley and he had entered into covenants not to sue having settled his case with them. See McGuire v. Commercial Union Ins. Co. of New York, 431 S.W.2d 347 (Tex.1968); Otwell v. Scott, 425 S.W.2d 9 (Tex.Civ.App.—Texarkana 1968, no writ hist.); and Skyline Cab Company v. Bradley, 325 S.W.2d 176 (Tex.Civ.App.—Houston 1959, writ ref. n.r.e.).

Texaco contends both Crall and Merchants were guilty of negligence as a matter of law and the jury’s findings of no negligence are against the great weight and preponderance of the evidence. We hold the court properly submitted negligence issues as to the conduct of Crall and Texaco and from our consideration of the entire record find the jury’s answers are not against the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We find some evidence of probative force in support of the answer Jimmy Davis was acting as an independent contractor instead of an employee of Merchants.

We have considered the entire record and hold that such finding is not contrary to the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Texaco contends that the jury’s answer, “We did not assume the risk”, cannot stand because as a matter of law Pursley voluntarily assumed the risk of approaching the Crall filter.

Texaco also contends the findings of the jury to special issue numbers 10(A), 10(B), 10(C) and 10(D) wherein the jury found that Pursley was not guilty of negligence cannot stand because the evidence establishes conclusively that he was negligent in each of such issues. We hold these issues were submitted to the jury on controverted facts and find no merit in Texaco’s contentions.

We have considered the entire record and find that the jury’s answers to the issues referred to in the two preceding paragraphs are not against the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Pursley was taken to Hendrick Hospital soon after he was injured. He was seen by Dr. Ralph Donnell, an orthopedic surgeon and X-rays were taken. Pursley’s primary injury was a fracture of the upper third of the left femur which is a thigh bone. His primary disability is in the knee with a circulatory problem with the foot and leg. Dr. Donnell testified that he brought all the X-rays with him “from Hendrick Hospital and from my office”. An X-ray of Purs-ley’s left femur made at the time the doctor first saw Pursley was offered in evidence and the doctor was asked if this X-ray was taken under his direction, supervision and control and he said, “Not directly, because it was made under the direction of the radiologist at Hendrick Hospital.” He testified the X-ray technicians at Hendrick were qualified to take X-ray pictures of various portions of the anatomy of injured people and they were supervised by a qualified radiologist. Dr. Donnell was asked the following question: “And do the X-rays taken there in the emergency room of Mr. Pursley correctly portray that portion of his anatomy? and he answered “Yes.”

Plaintiff’s exhibit 11 was an X-ray of his left leg taken at the time he entered the hospital. Texaco objected to the introduction of this exhibit for the reason:

“A proper predicate hasn’t yet been laid. Identification is not clear, and et cetera. Proper predicate hasn’t been laid. We object to it.”

Texaco contends the court erred in overruling its objection.

In Federal Underwriters Exchange v. Cost, 132 Tex. 299, 123 S.W.2d 332 (1938), the court said:

“ . . . The objection made was that the proper predicate had not been laid for their introduction. The proof as to the identity and correctness of the photographs was sufficient as a predicate for their admission, especially in view of the vague objection made.”

In Texas Indemnity Insurance Co. v. Phillips, 153 S.W.2d 503, (Tex.Civ.App.—Galveston 1941, writ dism’d), the court said:

“It is the established rule in this state that X-ray photographs of an injured person are not admissible in evidence without proof or admission by the parties that they are in fact X-ray photographs of the body of the injured person and that they are correct portrayals of his injuries.”

The hospital records containing reports of X-rays of Pursley’s injuries are in evidence without objection.

We hold proper proof was made for the introduction of the X-rays. If we are in error in this holding, then we find Texaco has failed to discharge its burden of showing such error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P.

Texaco’s final point asserts the court erred in permitting Pursley to change the answers in his deposition at the time of trial and substituting for the answers given at the time of his deposition hearsay answers.

In Pursley’s deposition, he made certain responses to questions regarding the condition of the filter and what he observed prior to the time the filter fell on him. A few days prior to trial before signing his deposition, Pursley made some changes.

The deposition was taken under a stipulation that did not provide for the waiver of the witness’ signature.

Pursley contends the changes he made in his answers are authorized by Rule 209, T.R.C.P., which reads in part as follows:

“ . . . Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with the statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign.”

Texaco introduced the original answers made by Pursley in his deposition and his amended answers. The amended answers were introduced for the limited purpose of showing the changes made and not for the truthfulness of the changes.

In Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963), the court said:

“The circumstances concerning the taking of this deposition are unusual to say the least. On September 15, 1955, four months after the suit was filed, Hernandez’ oral deposition was taken and the questions and answers transcribed upon 118 typewritten pages. Hernandez, however, did not immediately sign the deposition. When ordered to do so by the trial judge he signed the same but submitted an affidavit in connection therewith stating in substance that he was confused as to some of the questions and answers. This occurred on December 2, 1958, over three years after the deposition was taken. On January 6, 1959, the judge ordered the affidavit stricken but allowed Hernandez to make line by line changes in his answers contained in the deposition. Hernandez made over a hundred changes in his deposition answers and referred to a statement which was not attached to the deposition as giving his reasons for making such changes. Upon the trial, the presiding judge allowed both the original answers and the corrected answers to be read to the jury. He also permitted a portion of the affidavit theretofore stricken to be read to the jury, apparently upon the theory that the statement purported to explain the changes made by Hernandez. It further appears that Hernandez was treated for a mental condition diagnosed as schizophrenia. He was in a state hospital at the time of trial and respondents filed a second motion for a continuance in the case supported by an affidavit of a physician stating that in his opinion Hernandez’ mental condition in a month’s time would be such that he could appear and testify personally. Respondents argue that in view of the numerous changes made in the deposition by Hernandez, he should have been made available for cross-examination if possible and that consequently the refusal of the court to grant the second continuance constituted an abuse of discretion.
In our opinion none of the complaints with reference to the deposition and the-refusal to grant a continuance present a case of reversible error.”

It was the jury’s responsibility to pass on the credibility of Pursley’s deposition testimony. We hold Pursley was authorized to make the changes before signing his deposition.

We have considered all of Texaco’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: HALL, Justice.

text:
    Scott WALKER, Individually and d/b/a the Bed & Bath Shop, Appellant, v. WICKERWARE, INC., et al., Appellees.
    No. 5445.
    Court of Civil Appeals of Texas, Waco.
    Aug. 21, 1975.

      Moody & Crow, Waco, for appellant.
    Martin D. Eichelberger, Dist. Atty., Walter S. Smith, Jr., Larry 0. Brady, Ted Fair, Waco, for appellees.
   HALL, Justice.

This appeal was brought by Scott Walker to question take-nothing summary judgments against him which were separately rendered in nine cases filed by him. In each of the cases, Jack Harwell, in his official capacity as Sheriff of McLennan County, Texas, and one other named party, are the defendants. Harwell is the only defendant common to all nine suits. In each ease, Walker pleads for recovery against both defendants for damages assertedly caused by the alleged wrongful levy of an irregular writ of execution by Harwell under the other defendant’s direction and supervision.

Each judgment in question favors only Harwell. It does not purport to dispose of Walker’s claim against the other defendant in the case. The cause against Sheriff Har-well was not ordered severed from the cause against the other defendant in any of the cases.

When a summary judgment does not dispose of all parties and issues in a pending lawsuit and a severance of the part of the case disposed of by the judgment is not ordered by the trial court, then the judgment is interlocutory and not appealable. Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959). The judgments before us fall squarely within this rule, and we are without power to review them. The appeals are therefore dismissed for want of jurisdiction. Steeple Oil & Gas Corporation v. Amend, (Tex.Sup., 1965) 394 S.W.2d 789, 790; Templeton v. Hill, (Tex.Civ.App.—Waco, 1972, no writ hist.) 497 S.W.2d 948, 950.


text:
    Sue BICHSEL, Appellant, v. AMERICAN FINANCE SYSTEM OF McLennan, INC., Appellee.
    No. 5477.
    Court of Civil Appeals of Texas, Waco.
    Aug. 21, 1975.

      Jay U. Kirkman, Amarillo, for appellant.
    Sanders, Saunders, Brian, Finney & Thomas, Amarillo, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Bichsel from judgment in favor of plaintiff American Finance for $506.80 (plus $200. attorney’s fees) in a suit on a note.

Plaintiff sued defendant for $506.80 balance due on a $700. note, plus attorney’s fees. Plaintiff alleged defendant signed the note; that it was legal owner and holder of the note; that defendant owed $506.80 thereon after all credits and offsets were allowed.

Defendant answered denying execution and delivering of the note; and further that she was “induced by the fraudulent acts * * * of Jeary Cline to execute a blank note * * * that she relied on the truth of the material false representations * * Defendant prayed plaintiff take nothing.

On the day of trial plaintiff filed motion in limine requesting the court to instruct counsel for defendant to refrain from mentioning or referring to any transactions or relationships which existed between defendant and Jeary Cline; that same were totally irrelevant and immaterial to the case, but could be prejudicial to plaintiff. The trial court sustained such motion.

Trial was before the court without a jury which rendered judgment for plaintiff for $506.80. plus $200. attorney’s fees.

Defendant appeals on six points contending:

1) The trial court erred in granting plaintiff’s motion in limine because such action deprived defendant of material evidence of defendant’s defenses of fraud by Jeary Cline to have defendant execute and deliver the note upon which plaintiff’s case is founded.
2) The trial court erred in admitting in evidence carbon copy of the original note and Xerox copy of the original note without allegations in plaintiff’s petition alleging loss or destruction of the original note.
3) The trial court erred in admitting in evidence proof of excuse for non production of the original note in absence of allegation of loss or destruction of the original note.
4) The trial court erred in admitting in evidence the endorsement side of a check without proper authentication of defendant’s signature.

Contention 1 complains of the trial court’s granting motion in limine precluding defendant from referring to any transaction or relationship of defendant to Jeary Cline.

Defendant alleged in her answers that Jeary Cline’s fraud induced her to sign the note. There was no pleading to the effect that plaintiff was in any way a party to the alleged fraud, or that plaintiff had any knowledge of Cline or of his activities in connection with this transaction; and defendant alleged she knew she was signing a note, when she signed the note sued upon in this case. Thus any transaction or relationship between Cline and defendant are irrelevant to plaintiff’s suit on the note. Had the trial court not sustained the motion in limine defendant could have asked questions which of themselves could have prejudiced plaintiff. This is the purpose of a motion in limine. Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366.

This case is a suit on a note signed by defendant and payable to plaintiff. There are no pleadings connecting Jeary Cline to plaintiff, and whether defendant was defrauded by Cline is not an issue in this case.

The trial court properly sustained the motion in limine.

Contentions 2 and 3 complain of the trial court’s admission into evidence of a carbon copy and a Xerox copy of the note; and of evidence of excuse for non production of the original note; in the absence of pleading of loss or destruction of the original note.

The original note was not produced and there is evidence that it was lost. The trial court admitted both a carbon copy and a Xerox copy of the original note, and admitted evidence that the original had been lost, although plaintiff had not pleaded loss of the original note.

Article 3731c VATS authorizes use in judicial proceedings of copies or reproductions of written instruments where the party using same either produces the original or reasonably accounts for its absence, or where there is no bona fide dispute as to its being an accurate reproduction of the original.

Here there was evidence the original had been delivered to plaintiff’s attorney and was lost. The trial court admitted copies of the original. Defendant did not challenge the accuracy of the reproduction or the copy. The copy and reproduction were properly admitted into evidence. The absence of pleading of loss by plaintiff constitutes harmless error. Rule 434 TRCP.

Contention 4 asserts the trial court erred in admitting into evidence the endorsement side of a check without proper authentication of defendant’s endorsement thereon.

Plaintiff offered in evidence its check made out to defendant. There was evidence that the check was for the money borrowed by defendant and which was consideration for defendant’s execution of the note sued on. The trial court further admitted into evidence the reverse side of the check reflecting endorsement with defendant’s name. The evidence was that plaintiff’s employee signed the check and gave it to defendant. No error was committed in admitting the reverse side of the check in evidence.

All defendant’s points are overruled.

Affirmed.