author: GUITTARD, Chief Justice.

text:
    Tom H. MOONEY, Independent Executor of the Estate of Henry E. English, Deceased, Appellant, v. Richard C. INGRAM, Appellee.
    No. 19014.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 21, 1977.
    Rehearing Denied Feb. 17, 1977.

      Logan Ford, J. Dan Bohannan, Burford, Ryburn & Ford, Dallas, for appellant.
    Earl Luna, Luna, Murto & Sibley, Dallas, for appellee.
   GUITTARD, Chief Justice.

Richard Ingram sued Henry English on a written contract for a share of the profits on sale of a ranch. The contract provides that English would reserve from the sale a part of the ranch on which the improvements were located, to be determined by a survey. No survey was made, and English later sold the entire ranch, but refused to pay Ingram any part of the profits. After suit was filed, English died and the suit proceeded against his executor. The trial court rendered judgment against the executor, based on a jury verdict, for $249,527.93, representing one-fourth of the profits from the sale of the entire ranch. The executor appeals on the ground, among others, that the contract is unenforceable because the description of the portion of the ranch in which Ingram was alleged to have a profit participation was indefinite and uncertain. We agree, and, accordingly, we reverse and render judgment in favor of the executor.

The contract in question is in the form of a letter dated April 17, 1968, addressed to Ingram and signed by English, as follows:

In connection with the land located in Collin County, Texas, which I purchased from J. Garland Cook and wife, Flora Lou Cook, as evidenced by deed dated October 9, 1967, and recorded in Volume 698, Page 94 of the Deed Records of Collin County, Texas, said property being known as the Flying “M” Ranch property, I offer to you the following proposal: I propose to carve out of the above described land a rectangular tract sufficiently large to take in the main house, the barns, stables and pens, and extending back far enough to take in the lake. The exact dimensions will, of course, have to be determined by survey.
The foregoing tract of land I propose to reserve entirely unto myself for such use as I care to make of it. With respect to the remainder of the land, however, and in consideration of services rendered and to be rendered by you during the time I am the owner of said lands in helping to manage and operate the same, and helping to negotiate any sale thereof, I offer to pay to you a sum equal to one-fourth of the “net profits” which may be realized out of any sale or sales of said “remaining lands” (the term “remaining lands” means all of the lands save and except the tract carved out which I have above described). Further, I offer that in the event of your death prior to the sale of all of the “remaining lands”, the amount which I offer to pay you will be paid over to your surviving widow, provided you are survived by her.
The term “net profits” as used herein will be calculated as follows: From the net sales price realized from the sale of the “remaining lands” (which term shall mean the gross sale price less expenses of sale) there shall be deducted all moneys which I shall have paid out in connection with the acquisition of the whole of the lands constituting the Flying “M” Ranch. There shall also be deducted all moneys which I shall have paid out in placing permanent improvements on said lands. The term “moneys paid out” shall include all such moneys, whether paid out in the form of purchase price, interest or expense, so long as they were incurred in connection with the acquisition thereof or the making of permanent improvements thereon. The term “moneys paid out” shall not include, however, moneys paid out for purchase of cattle and other personal property situated on said lands. The difference between the net sale price of the “remaining lands” and the sum total of the moneys paid out to be deducted therefrom shall constitute the “net profits”. Your share of the money equal to the “net profits”, as herein defined, will be paid to you as and when “net profits” are received by me.
Your signature signifying the acceptance of this offer on the bottom of this letter will constitute a contract between us. When so accepted, such contract will be binding upon me and upon my heirs, executors, administrators and assigns as an enforceable obligation against me and my estate, [emphasis added]

Ingram accepted the proposal on April 18, 1968, by signing at the bottom as suggested. Shortly afterward he moved to the ranch, and he managed it until October 1968, when English terminated his employment. Three years later, in November 1971, English sold the entire ranch, but declined to pay Ingram any part of the proceeds. Ingram did not participate in any of the negotiations for the sale.

The ranch consisted of approximately 1,370 acres. Although the area to be reserved from sale was never surveyed, as contemplated by the contract, plaintiff attempted to identify it generally at the trial by introducing the testimony of English’s former wife, who was permitted to testify concerning the area which English told her they would “never sell,” and to draw on one of the maps in evidence a pencil line illustrating her testimony. Plaintiff also introduced the testimony of a real estate expert, who testified that the “smallest possible rectangle” including the improvements and the closer of the two lakes on the property would include twenty-five to thirty-five acres, and would have a market value of between $80,000 and $90,000. The remaining land, in his opinion, would be worth between $850 and $1,000 per acre if the two tracts were sold together. This, he said, “would be more or less just raw land,” because the reserved area would “take the heart out of the ranch and a lot of the beauty out of it.” He did not identify any particular rectangle, and he testified that an infinite number of possible rectangles could be drawn in keeping the contract.

Plaintiff’s suit, however, is not based on any attempt to identify the reserved area and compute the profit from sale of the “remaining lands.” He sued for one-fourth of the profits from sale of the entire ranch, and he takes the position that since English sold the ranch without any survey of the reserved area, plaintiff was entitled to one-fourth of the entire profit. On this theory the trial court submitted issues to the jury and, based on the jury’s answers, rendered judgment for one-fourth of the profit from the sale of the entire ranch.

The executor contends that the contract is void and unenforceable because the description of that portion of the ranch in which plaintiff is alleged to have a profit participation is too vague, indefinite, and uncertain, and in this connection he insists that the contract cannot be interpreted as providing for plaintiff a profit participation in the entire property. We agree. The contract is not, in itself, sufficiently definite to provide a measure of plaintiff’s recovery. The amount of compensation for plaintiff’s services was made to depend upon future events that never took place. According to the contract, English was first to have a survey made of the land he proposed to reserve, and then he was to sell the “remaining lands” for a price over and above his investment in the ranch before plaintiff would be entitled to any share in the profits. Since these events never occurred, the court has no means of determining the amount that would be due to plaintiff if English had fully performed. Consequently, the contract is too indefinite to support the damages awarded by the trial court.

In this respect the case is like Miller v. Vaughn & Taylor Construction Co., 345 S.W.2d 852, 853-54 (Tex.Civ.App., Fort Worth, 1961, writ ref’d n. r. e.) where an auctioneer was sued for breach of a written contract to sell property “as per list prepared by owner.” No list was ever prepared, and the contract was held to be unenforceable because the property to be sold was a material term left for future determination. Other authorities support the rule that there is no enforceable contract where the agreement of the parties leaves an essential term for later determination and it is never determined. H. B. Zachry Co. v. Maerz, 223 S.W.2d 552, 554 (Tex.Civ.App., San Antonio, 1949, no writ); Gordon v. Emerson Shoe Co., 242 S.W. 791, 795 (Tex.Civ.App., Beaumont, 1922, no writ); Hume v. Bogle, 204 S.W. 673, 674-75 (Tex.Civ.App., Austin, 1918, no writ); El Paso Gas, Electric Light, & Power Co. v. City of El Paso, 22 Tex.Civ.App. 309, 54 S.W. 798, 800 (1899, writ ref’d); and see Stekoll Petroleum Co. v. Hamilton, 152 Tex. 182, 255 S.W.2d 187, 192 (1953).

Plaintiff insists that since the contract does not purport to bind English to transfer an interest in the land itself, but only promises him a share in the profit from a sale, the land need not be described with the same degree of certainty as in a contract for sale of land. He relies on cases holding that in a suit for damages only reasonable certainty is required, including Berne v. Keith, 361 S.W.2d 592 (Tex.Civ.App., Houston, 1962, writ ref’d n. r. e.) and Grimsley v. Life Ins. Co. of Virginia, 154 S.W.2d 196 (Tex.Civ.App., Austin, 1941, writ ref’d n. r. e.). This contention would merit serious consideration if the present suit were based on an estimate of the damages according to the measure of compensation provided in the contract. Thus, a different question would be presented if plaintiff’s expert witness had made some sort of estimate of the area which English proposed to reserve and then had allocated the proceeds from the sale of the ranch between this improved area and the remaining lands so that the court and jury could then find the estimated “net profit” from the sale of the “remaining lands” over the cost of acquiring the entire ranch and its improvements, as the contract provides. We need not decide whether plaintiff would be entitled to such a recovery since no such evidence or findings are before us, and even if such a record were presented, a substantial question would remain as to whether the contract is too indefinite to be enforced.

As we understand plaintiff’s position on this appeal, he does not contend that the contract as originally drawn was sufficiently definite to provide the measure of compensation for plaintiff’s services without further action on the part of English. He concedes that the land to be reserved by English was never identified, but he argues that English himself removed that uncertainty when he sold the entire ranch without “carving out” any area to be reserved to himself. In this connection, plaintiff contends that the contract provided an option to English to reserve an area to be selected by him and that he exercised this option by sale of the entire ranch without making such a survey or such a reservation. Plaintiff insists that the measure of his compensation under the contract, therefore, is one-fourth of the profits realized from sale of the entire ranch.

We do not believe that the contract is subject to this interpretation. Central to English’s proposal, as stated in the very beginning of the letter, is his intention “to carve out of the above described land a rectangular tract sufficiently large to take in the main house, the barns, stables and pens, and extending back far enough to take in the lake.” Excluding this area, English proposes to pay plaintiff one-fourth of the profits realized from sale of the “remaining lands,” which are defined to be “all of the lands save and except the tract carved out which I have above described.” No uncertainty is expressed as to whether part of the land would be carved out and reserved from sale. The identity, however, is uncertain in that the reserved area is to be designated by English and located by survey. As plaintiff’s own expert testified, the part to be reserved was the “heart” of the ranch, and the rest was “just raw land.” There is not the slightest indication in the contract of any intention that Ingram should share in the profit from sale of this most valuable part of the property.

This interpretation is inescapable in view of the unusual contractual definition of the term “net profits,” of which Ingram was to receive one-fourth. Under this definition, the term “net profits” is not simply the gain to be realized from the selling price over the cost of the land sold. It is rather the gain in the selling price of the “remaining lands” over the cost of acquisition of the entire ranch and its improvements. In other words, the parties intended that before any “net profits” would be recognized from sale of the “remaining lands,” subject to Ingram’s one-fourth interest, English should have the reserved area and its improvements free and clear. The “net profits” interest so defined was a substantially smaller interest, and less likely to be realized at all, than the gain that would be realized from sale of the entire ranch. Consequently, it is clear to us that the parties never intended that Ingram should receive a full quarter of the profit to be realized from the sale of the whole ranch and its improvements.

Plaintiff further contends that English removed any uncertainty with respect to land to be sold in his letter of October 8, 1968, terminating plaintiff’s employment. This letter is as follows:

Dear Dick:
I am not satisfied with the manner in which you are operating the Flying “M” Ranch and do not intend to be bothered any more about it.
I am turning the place over to Haskell Gunter and will expect you to vacate the place at your earliest convenience. I do not expect to advance any more money or pay you any more salary until such time as I can sell the place at a profit after the interest and expenses are paid. If the place sells at a loss, in that case, there would be no profit to divide.
Yours very truly,
s/ Henry E. English

Plaintiff argues that since this letter evidences English’s intent to pay for plaintiff’s services when English “can sell the place at a profit,” it amounts to exercise of his “option” to sell the entire ranch rather than only the lands “remaining” after designating by survey the area including the improvements. This argument rests on plaintiff’s option theory, which we have already rejected as without support in the provisions of the contract. Moreover, the letter does not specify that “the place” English then intended to sell included the land on which the improvements were located, and, even if subject to that interpretation, it cannot be regarded as a binding contractual promise to pay plaintiff a full quarter of the profit from sale of the entire ranch since it is not based on any new consideration. Consequently, we hold that this letter cannot be made the basis of any additional rights.

Plaintiff further contends that the contract provides a sufficiently definite measure of his compensation in view of his performance of his obligations under it, citing such cases as Tanenbaum Textile Co. v. Sidran, 423 S.W.2d 635, 637 (Tex.Civ.App., Dallas, 1967, writ ref’d n. r. e.); Morgan v. Young, 203 S.W.2d 837 (Tex.Civ.App., Beaumont, 1947, writ ref’d n. r. e.); and Folmar v. Thomas, 196 S.W. 861 (Tex.Civ.App., Austin, 1917, no writ). Under these cases a contract, though originally too indefinite, may nevertheless be enforced if performance by the parties has identified and made certain that which originally was left uncertain. This rule cannot properly be applied in the present case because no performance by the parties has served to identify the land which English proposed to carve out. Plaintiff contends that sale of the entire ranch served this purpose, but, as we have already explained, the contract cannot properly be interpreted as providing that plaintiff should receive one-fourth of the net profits from sale of the entire ranch. Neither has plaintiff established full performance on his part, as distinguished from breach by English preventing plaintiff’s further performance. Plaintiff admits that he managed the ranch only a few months and that he had nothing to do with negotiating the sale. He alleges that he “fully performed all of said services which were required of him and which he was permitted to perform.” The jury found that he “fully performed all of the services required of him in the agreement . . . which he was permitted to perform in helping Henry E. English, now deceased, to manage and operate and helping to negotiate any sale of the subject property.” The executor attacks this issue on various grounds which we need not now consider, but even if considered most favorably to plaintiff, this finding establishes only that plaintiff did not breach the contract so as to justify English’s termination of his employment in October 1968. Thus the recovery awarded by the trial court must be considered as damages for breach of an executory contract rather than compensation for services rendered insofar as plaintiff is allowed to recover the amount of the payment he expected to receive if both he and English had fully performed their contractual obligations.

If plaintiff had continued to manage the ranch during the whole time that English owned it and had helped to negotiate the sale of the entire ranch, he would have been in a stronger position to contend that English could not then avoid liability for a share in the profits because, in that situation, the evidence might raise the issue of modification of the original contract by the action of both parties. No such issue is raised here, since the undisputed evidence is that plaintiff’s employment terminated in October 1968. Therefore, the present suit must be regarded as an action for damages for breach of an executory contract, and so considered, it fails because the contract is too indefinite to be enforced.

Plaintiff would apply to this contract the rule sometimes applied with respect to deeds, that if the description of the whole tract is sufficient, but there is an indefinite reservation or exception, title to the whole tract passes and only the reservation or exception fails, citing Lewis v. Midgett, 448 S.W.2d 548 (Tex.Civ.App., Tyler, 1969, no writ); Fuentes v. Hirsch, 472 S.W.2d 288 (Tex.Civ.App., El Paso, 1971, writ ref’d n. r. e.); and De Roach v. Clardy, 52 Tex.Civ.App. 233, 113 S.W. 22 (1908) (writ ref’d). These cases stand for the rule that after a vendor has sold land, delivered the deed, and transferred possession, he or his heirs will not be permitted to recover title to the entire property because of uncertainty of an exception for which the vendor was himself responsible. They do not support the proposition that if a contract provides for compensation for services based on profit from the sale of a part of a tract of land, but that part is never identified and the entire tract is -sold, the compensation must then be based on the profit from the sale of the whole.

Even though no sufficiently definite contractual measure of compensation is provided under the circumstances shown in this record, Ingram is entitled, of course, to compensation for services actually performed. Although he did not help to negotiate the sale and he managed the ranch for only a brief period, he may recover the reasonable value of his services to the extent that they were accepted by English or were performed in accordance with the contract and to the extent that he has not already been paid. No special issue was submitted or requested on the value of the services actually performed, and, consequently, the judgment in his favor cannot be upheld on this ground. Since we hold that the contract does not support the judgment for one-fourth of the profits on sale of the entire ranch, that judgment must be reversed and judgment is here rendered for defendant.

Reversed and rendered.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    BEKINS VAN LINES COMPANY, Appellant, v. Rex C. CAUBLE, Appellee.
    No. 17790.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 21, 1977.

      Condos & North, and Raymond E. North, Dallas, for appellant.
    Jack W. Gray and John L. Sullivan, Den-ton, for appellee.
   OPINION

HUGHES, Justice.

Bekins Van Lines Company (hereafter called Bekins) sued Rex Cauble (hereafter called Cauble) for payment of interstate freight charges on furniture shipped for Kenneth Boggs (hereafter called Boggs), an employee of Cauble. Bekins claimed Cau-ble had guaranteed payment by letter Cau-ble wrote Bekins. Cauble defended that conditions precedent in letter had not been performed (Boggs did not “O.K.” invoice of shipment personally and that the invoice was “not as represented”). Bekins claimed such conditions to be immaterial and viola-tive of 49 U.S.C.A. § 323. The case was tried before the court without a jury and the court found for Cauble and that Bekins take nothing. From Cauble’s judgment based thereon Bekins appealed.

We affirm.

There is no material dispute as to the facts in this case.

Kenneth Boggs, prospective employee of Rex Cauble, entered written order for service with Bekins Van Lines Company on February 23,1973. Written billing authority was requested by telephone from Bekins’ employee, Bob Holland, to Cauble. Cauble replied by letter dated February 26, 1973:

“Denton — February 26, 1973

“Bekins Moving & Storage

5342 E. Mockingbird Lane

Dallas, Texas 75206

“Attention: Mr. Bob Holland

“Re: Transportation Charges Household Goods-Kenneth Boggs, Ger-mantown, Tennessee to Denton, Texas

“Gentlemen:

“First, I want to tell you what a damn poor system you have of checking credit, and in the essence of time, this is to inform you that I am responsible for the transportation charges referred to above, and will mail your company a check upon presentation of an invoice, if it is as represented and O.K.’d by Kenneth Boggs.

“Yours truly,

/s/ “Rex C. Cauble

“Rex C. Cauble

“RCC/rv”

Bekins moved households goods of Boggs from Germantown, Tennessee, to Cauble’s place in Denton, Texas, on or about March 1, 1973. The Bill of Lading was ■ signed “Mrs. Ken Boggs.” Kenneth Boggs worked for Cauble part of a week; lived in a house furnished him by Cauble and disappeared within such week. Bekins sent invoices to Cauble and made several demands for payment of $1,498.44. Cauble did not pay anything.

Bekins assignes ten Points of Error.

The first Point avers that trial court erred in concluding that terms “if . as represented” was a condition precedent material or essential to the parties’ agreement. The second Point being that the difference of 37% between the estimate and the final invoiced charge was not material.

The word “if” in the contract clearly expresses a condition. Bagnall v. Bagnall, 148 Tex. 423, 225 S.W.2d 401, 402 (1949)—in this instance a material condition that before payment of the invoice it (invoice) must be “as represented.” The trial court found that the 37% increase from what was represented to Cauble to what was actually billed in the invoice was material to the parties’ agreement. We agree and overrule Bekins' First and Second Points of Error.

As to Point No. 3, we agree with Cauble that 49 U.S.C.A. § 323 does not operate to prohibit a collateral contract for payment of shipping charges by a third party, where such contract does not purport to limit in any manner the primary liability of the consignor or consignee for payment of established charges under existing tariffs. We overrule Point No. 3.

Points No. 4 and No. 5 complain that there was no evidence and insufficient evidence for the trial court to find the approval of Kenneth Boggs was highly material. We disagree. Cauble’s testimony to the effect that his agreement with Boggs was with the understanding if he, Boggs, did not stay employed by Cauble for a year then he, Boggs, would have to pay the moving bill establishes evidence of sufficient materiality of having Boggs approve such invoice. We overrule Points Nos. 4 and 5.

By Point No. 6 Bekins complains that approval by Kenneth Boggs was not an essential element of the contract. As to the contract between Boggs and Bekins, there is nothing essential in the “O.K.” of Boggs. However, in the guarantor’s contract with Bekins we hold that such “O.K.” is essential, and it was condition precedent to accepting liability and was not payable “until that condition has happened.” Ferguson v. Mansfield, 114 Tex. 112, 263 S.W. 894, 900 (1924). We overrule Point No. 6.

In Points Nos. 7 and 8, Bekins claims that the “O.K.” of Kenneth Boggs was a delegable duty for which authority could be inferred. Gravis v. Physicians and Surgeons Hospital of Alice, 427 S.W.2d 310, 311 (Tex.1968), held “the relationship of husband and wife does not in itself make one spouse the agent of the other.” Also, Rankin v. Kerrville Bus Co., 115 S.W.2d 997 (Tex.Civ.App.—San Antonio 1938, writ dism’d). We find that the provision for the “O.K.” of contract by Boggs was not dele-gable to his wife absent additional agreement or waiver by Cauble. Further, there is no evidence of any actual authority for her to act for Kenneth Boggs and apparent authority would have to be based on estop-pel of Cauble, not Boggs, and there is no evidence of Cauble holding anyone out to “O.K.” the invoice but Kenneth Boggs.

We agree that there is no statutory liability under 49 U.S.C.A. § 323 and that it does not prohibit a collateral guaranty contract as in this case. We also hold that both conditions precedent were not complied with by Bekins and overrule Points Nos. 9 and 10.

The judgment of the trial court is affirmed.


author: EVANS, Justice.

text:
    Paul H. KISRO, Relator, v. Judge Wyatt H. HEARD, Respondent.
    No. 16861.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 21, 1977.

      Felton, Hooker & Giddens, Albert Lee Giddens, Houston, for relator.
    Thomas F. Lay, Pasadena, D. R. Bernard, Houston, for respondent.
   EVANS, Justice.

Relator moves for leave to file a petition for writ of mandamus, directing the Honorable Wyatt H. Heard, Judge of the 190th Judicial District Court of Harris County, Texas, to enter a garnishment judgment in favor of Relator. The motion will be refused.

Relator recovered a summary judgment on August 26, 1976, against defendants E. Raymond Jensen and wife Myra Jensen for the total sum of $24,311.00, plus costs. E. Raymond Jensen perfected an appeal from the judgment, but his wife Myra Jensen did not appeal. The judgment was not superseded. Relator then filed application for writ of garnishment against First Pasadena Bank and Southmore Savings and Loan Association, as garnishees, and the latter institution admitted that it was indebted to defendants Myra Jensen or E. Raymond Jensen in an amount in excess of the judgment. E. Raymond Jensen filed a petition in intervention in the garnishment proceedings, asserting a joint interest in the funds sought to be garnished and requesting that the funds be held in the registry of the court pending the determination of his appeal. The trial court directed that the garnishee pay the sum of $25,200.76 into the court’s registry pending the outcome of the intervenor’s appeal and ordered that the balance be released from garnishment.

A review of the garnishment proceedings indicates that the trial court acted within its discretion in refusing to enter a judgment for relator on the application for writ of garnishment.

The judgment which constituted the basis for the garnishment proceedings was entered in favor of the relator against both defendants, E. Raymond Jensen and Myra Jensen. The relator’s sworn application for garnishment recites only that the judgment is final against the defendant Myra Jensen and that such defendant has not, within the affiant’s knowledge, property in her possession, within the State, subject to execution, which is sufficient to satisfy the judgment. Where a judgment is entered against more than one defendant, the application for garnishment must state that the garnishment has not been brought to injure either of the defendants and that neither of the defendants has property within the affiant’s knowledge, subject to execution, within the State, which was sufficient to satisfy the garnisher’s claim. Lowe, Texas Practice, Remedies, 2d Ed., Vol. 6, Section 822, page 542; Section 851, page 563.

“The plain effect of the statute is that a . plaintiff in a suit for debt against more than one defendant, cannot call strangers into court on a writ of garnishment, subjecting them to the inconvenience of the proceeding and possible hazard, if either of the defendants has property within the State subject to execution from which he may make his debt. Garnishment is but a species of attachment. It is a summary proceeding. The statutes governing it should be followed with strictness. The statute requires that the affidavit state that ‘the defendant’ has not, within the affiant’s knowledge, property, etc. Where there are two defendants, or more, in the suit, this clearly means the affidavit shall state that ‘the defendants’ have not such property. Garnishment is not intended as a remedy for one able to make his debt of the property of one of his debtors in the suit, whether such debt- or be primarily liable or not.” Buerger v. Wells, 110 Tex. 566, 222 S.W. 151 (1920).

The garnishment application in the case at bar is patently defective. The applicant did not state under oath that the action was not brought to injure either of the defendants and that neither of them had property, within the affiant’s knowledge, subject to execution which would satisfy the judgment. Relator has failed to establish the existence of a clear duty on the part of respondent to enter the garnishment judgment.

Relator’s motion for leave to file petition for writ of mandamus is refused.


author: O’QUINN, Justice.

text:
    HIGHLANDS CABLE TELEVISION, INC., et al., Appellants, v. Mitchel WONG et al., Appellees.
    No. 12438.
    Court of Civil Appeals of Texas, Austin.
    Jan. 26, 1977.
    Rehearing Denied March 9, 1977.

      Robert A. Rowland, Mueller & Rowland, Austin, for appellants.
    Robert J. Hearon, Jr., Owen L. Roberts, Graves, Dougherty, Hearon, Moody & Gar-wood, Austin, for Mitchel Wong.
    Wayne Prescott, Brown, Maroney, Rose, Baker & Barber, Austin, for R. A. Denni-son.
   O’QUINN, Justice.

The parties to this action are Highlands Cable Television, a corporation, and all of its five stockholders.

In connection with purchase and improvement of a cable television system in the area comprising and surrounding the city of Marble Falls, Highlands Cable in 1971 borrowed substantial sums of money from the City National Bank of Austin, and granted City National deed of trust liens and security interests on substantially all of its corporate assets. As a condition of the loan, each of the five stockholders executed separate guaranty contracts agreeing to pay to the bank, jointly and severally, “any and all indebtedness” which Highlands “may now or at any time hereafter owe,” together with interest and collection costs.

Three of the stockholders owned one-seventh each of the corporate stock, and two of the stockholders owned two-sevenths each of the stock. The stockholders agreed among themselves that each would be liable for the indebtedness of Highlands in proportion to stock owned by the individual, but it is undisputed that each stockholder recognized his liability to City National for the entire amount of the indebtedness.

When Highlands defaulted on its note in October of 1971, in the principal sum of $367,500.00, City National made demand for payment in full on each of the guarantors. Mitchel Wong, one of the stockholders and an appellee in this appeal, notified the bank of his willingness to pay one-seventh of the liability, provided the other shareholders paid the remaining six-sevenths. In recognition of his full liability under the guaranty, Wong further proposed that if City National failed to receive payment in full in this manner, Wong would make “suitable arrangements concerning cash payment of the balance due the Bank in a manner which would protect his rights against the other guarantors in accordance with their agreement, as well as subrogate him to any rights the Bank may have as to collateral.”

No other guarantor performed, and Wong, in February of 1975, paid City National $381,541.53, being $367,500.00 as principal and $14,041.53 accrued interest. The bank endorsed the note to Wong without recourse, and executed in his favor formal assignment of the note and all security, including all rights City National had against the other guarantors.

No payments were made by any of the other guarantors, although Wong and A. R. Dennison, one of the guarantors, did reach an agreement concerning Dennison’s payment to Wong of two-sevenths of the liability, being the proportionate amount of the stock held by Dennison. No agreement was made with Highlands or with any other stockholder as guarantor.

Thereafter Wong and Dennison brought this suit against Highlands for the amount due on the note, plus attorney’s fees, and for foreclosure of the liens, and also sued William R. Turpin, Albert A. LaLonde and Elwood L. Munson, the remaining three of the five stockholders, for their proportionate share (four-sevenths) of any deficiency.

Trial was to the court without a jury, after which the court entered judgment for Wong and Dennison against Highlands for $381,541.53, being the balance due on the note when Wong acquired it in February of 1975, together with interest from that date till paid, and for attorney’s fees in the sum of $38,154.15, the amount provided under terms of the note. The judgment also provided for interest from date of judgment and ordered foreclosure of the liens and security agreements, with receivers appointed to sell the collateral and to apply all proceeds, after expenses, to costs of suit and to the judgment against Highlands.

The trial court also entered judgment against each of the three stockholders named defendants in the suit, in proportion to individual ownership of stock in Highlands, for a total four-sevenths of any deficiency remaining unpaid on the judgment against Highlands after application of proceeds from sales of collateral.

Highlands and the three guarantor-stockholders sued by Wong and Dennison have appealed and bring three points of error, under which the main issue is whether they are liable for attorney’s fees in the amount of $38,154.15. Appellants concede that there is no dispute by Highlands that it is indebted to appellees in the sum of $381,-541.53, plus interest from the date Wong paid City National and took an assignment of the note; and the individual appellants concede that they are indebted to Wong to the extent of their respective contributive shares of the $381,541.53 plus interest.

Appellants contend that the remedy of appellees against appellants is by an action in contribution, and that the judgment should have been limited to their respective obligations to repay Wong for the money he advanced to discharge their guaranties, plus interest on such money.

We will overrule the points of error and affirm the judgment of the trial court.

The note Highlands executed and delivered to City National expressly provided for payment of attorney’s fees in the amount of ten percent of principal and interest if the note should be placed in the hands of an attorney for collection or if suit should be brought. Under each of the guaranty agreements executed by the several stockholders, the guarantors agreed “to pay 10% of the indebtedness additional as attorney’s fees should this contract be placed in the hands of an attorney for collection or should it be collected through any court.”

The guaranty agreements further provided: “This guaranty shall inure to the benefit of the transferee, assignee, or holder of the principal debt; however, all indebtedness to the Creditor shall first be paid in full, before the assignee of any debt guaranteed shall receive any benefit of this contract of guaranty.”

Appellees base their lawsuit on the debt evidenced by the note in the principal sum of $367,500, the separate guaranty agreements signed by appellees as well as appellants, and the undisputed agreement among all the guarantors that each would pay his proportionate share of the indebtedness evidenced by the note held by City National. It is not disputed that Wong, as one of the guarantors, paid the note in full, together with interest to date, and received from City National an assignment of the note and the security from City National.

Under the Texas Uniform Commercial Code “Transfer of an instrument vests in the transferee such rights as the transferor has therein . . . ” (Sec. 3.201, V.T. C.A., Bus. & C.)

The Code further states:

“Payment or satisfaction may be made with the consent of the holder by any person including a stranger to the instrument. Surrender of the instrument to such a person gives him the rights of a transferee (Section 3.201).” (Sec. 3.603(b), Y.T.C.A., Bus. & C.) (Emphasis added)

Wong and Dennison elected to prosecute this action “on the very debt itself,” evidenced by the note and the securities, including the individual guaranty agreements. The Supreme Court held in 1931 that “. . . payment by a party secondarily liable, other than the principal debtor or party accommodated, does not discharge or extinguish the debt.” Fox v. Kroeger, 119 Tex. 511, 35 S.W.2d 679, 681, col. 2 (1931). In that case the Supreme Court announced the rule that in Texas “. where the surety pays the debt of the principal, [thereafter he may elect to bring an action on assumpsit or on the obligation implied to be reimbursed by the principal] or he can prosecute an action on the very debt itself, and in either event he stands in the shoes of the original creditor as to any securities and rights of priority.’’ (35 S.W.2d 681, col. 1) (Emphasis added)

Shortly after the decision in Kroeger was announced, the Eastland Court of Civil Appeals withdrew an earlier opinion to follow the holding of the Supreme Court and held that the person making payment thereby acquired the right to bring an “action on the note for that amount, with interest and attorney’s fees . . Self v. Thompson, 35 S.W.2d 245 (Tex.Civ.App. Eastland 1931, no writ). (Emphasis added) The rule in Kroeger was applied in the recent decision of the San Antonio Court of Civil Appeals in Seale v. Hudgens, 538 S.W.2d 459 (Tex.Civ.App. San Antonio 1976, writ dism’d), in which the court held that the surety paying the debt may sue on the debt itself and in such action stands in the shoes of the original creditor “as to any securities and rights of priority.”

Appellants argue in effect that neither the statutes nor the rule in Kroeger, followed consistently since 1931, permit recovery against them for more than their proportionate shares of the principal and interest on Highlands’ debt, and that they are not liable for attorney’s fees, although both the note and the guaranty agreements provide for liability for attorney’s fees. We hold that appellees stand in the shoes of City National, the original creditor, and that the trial court properly rendered judgment against the individual appellants for their respective shares on such deficiency as may exist on the judgment against Highlands.

Appellants argue under their second point of error that appellees failed to prove that they had agreed to pay their attorneys any specified amount as fees and that the judgment allowing attorney’s fees is not supported by any evidence, but rests only upon a presumption. Appellees pleaded and proved placement of the note and guaranty agreements in the hands of their attorneys for enforcement and collection. Thus proof was made of the contingency which made attorney’s fees payable under both instruments.

The rule is well settled that as between the owner of the note and the person obligated to pay, the owner is prima facie entitled to recover attorney’s fees stipulated in the writing “upon the happening of the contingency which makes the same payable.” Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, 950 (1960). In Schmidt the Supreme Court made clear that “In the absence of an issue affirmatively tendered by the defendant, it is not necessary for the plaintiff to prove an agreement to pay such fee to an attorney or that the same is reasonable.”

Appellants did not plead either the lack of an agreement to pay such attorney’s fees or that the fees were unreasonable. We find no evidence in the record showing or tending to show that the actual fees agreed to be paid by appellees, in the collection and enforcement of the note and guaranty agreements, will be less than the amount provided for in the note, or that the fees are or will be in an amount that is unreasonable. In the absence of pleading and proof that the amount of attorney’s fees contracted for in the note is unreasonable, proof of reasonableness is not required. International Shelters v. Corpus Christi State National Bank, 475 S.W.2d 334, 336 (Tex.Civ.App. Corpus Christi 1971, no writ).

Although appellants admit on appeal that they are liable for their proportionate parts of the amount Wong paid City National to obtain assignment of the note and guaranty contracts, appellants have paid no part of such obligations, by reason of which appellees were obligated to bring this lawsuit. With transfer of the note and security by City National, appellees stand in the shoes of City National as the original creditor having contractual rights to attorney’s fees provided in the note and guaranty agreements.

The trial court correctly awarded judgment for an amount attributable to attorney’s fees, which appellants had expressly contracted to pay, the judgment being supported by the pleadings and evidence.

Finally, appellants contend that the trial court erred in refusing to grant a new trial on evidence offered at the hearing on the motion. The evidence offered was elicited from Wong and one of his counsel, who were present and participating in the trial. By such evidence, appellants sought to show lack of agreement between appellees and counsel upon the amount of attorney’s fees.

This contention is without merit for several reasons. Appellants offered no evidence at the hearing which could not have been offered at trial by examination of witnesses testifying or otherwise available in the courtroom during trial. 41 Tex. Jur.2d New Trial, sec. 112. The evidence offered at the hearing would not have been admissible at trial since appellants failed to plead lack of agreement as to attorney’s fees or the unreasonableness of such fees if agreed upon. No evidence offered at the hearing on motion for new trial amounted to proof that the attorney’s fees incurred by appellees would be less than the amount awarded by the judgment.

We conclude that the trial court did not abuse its discretion in denying appellants a new trial.

The judgment of the trial court is affirmed.

Affirmed.


author: DIES, Chief Justice.

text:
    TEXAS A & M UNIVERSITY et al., Appellants, v. Joyce F. WARD et al., Appellees.
    No. 7899.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 27, 1977.
    Rehearing Denied Feb. 17, 1977.
    Clyde M. Marshall, Jr., Fort Worth, Herman I. Little, Jr., Asst. Atty. Gen., Austin, for appellant.
    D. Brooks Cofer, Jr., Travis Bryan, III, Bryan, for appellee.
   DIES, Chief Justice.

This is a will contest case. Patricia Aileen Ward, age nineteen, was killed in an automobile accident on January 15, 1974. She was a student at Texas A & M University, and at the time of her death was returning to College Station from Dallas after the Christmas holidays to commence the second semester of her sophomore year.

Proponent George N. Clawson, the named executor, filed the instrument dated August 26, 1973, for probate as the Last Will of Patricia Aileen Ward. Contestants were Joyce F. Ward, decedent’s mother, and Louise Powell Ward, a half-sister of decedent.

Texas A & M University, the trustee of a charitable trust created in the will, joined as a Proponent; Attorney General John Hill, a necessary party to the will contest, pursuant to Tex.Rev.Civ.Stat.Ann. art. 4412a, also became a Proponent of the will. Trial was to a jury which found the will to have been the product of undue influence by George N. Clawson, and the County Court of Brazos County entered its judgment on the verdict denying probate of the will. From that judgment, Texas A & M University, Attorney General John Hill, and Mr. George N. Clawson perfect this appeal.

For clarity, Texas A & M, General Hill, and Mr. Clawson will be referred to as “Proponents” or by name, while Joyce F. Ward and Louise Powell Ward will be referred to as “Contestants” or by name.

Proponents urge there is no evidence to support the jury’s finding of undue influence. In passing on this point, we may consider only the evidence and inferences therefrom which tend to support the verdict. Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965).

Mrs. Jessie Kimbley was the apartment manager of Embassy Apartments in Irving in August 1973 when Patricia Aileen came to stay with her father, John Ward, who lived in the complex. The father introduced Patricia Aileen to Mrs. Kimbley. Her father, John Ward, passed away, and then Patricia Aileen introduced the witness to her uncle, Proponent George Clawson. “She brought him to the office when she asked me if I’d seen her will.” Mrs. Kimb-ley did not recall the date but (Patricia) “[sjaid that she was making out a will and wanted to know if I would sign it until she could get another one made out.” Patricia gave her the will; the witness read it; saw Patricia sign it; and then the witness signed it. Patricia did not appear to be on drugs or alcohol but seemed sad. Proponent Clawson “said Patricia wanted — was making out — or had this will made out and wanted to know if I’d sign — witness the will.” Patricia seemed a bright girl and of sound mind. This was the only occasion she had a conversation with Patricia. Clawson signed the will before the witness did. Patricia also asked one Jackie Egans, who lived in the complex, to sign as a witness. It was the witness’ opinion that Patricia knew what her estate consisted of and what she wanted to do with it. Proponent Claw-son said nothing to Patricia about what she ought to do or direct her in any way.

Jackie Egans worked with Patricia at El Chico’s restaurant. She recalled that Patricia asked her to sign the will in August 1973. This occurred in the manager’s office. Patricia asked her to read it before signing. She thought Patricia “knew what she was doing all the time.” On cross examination she indicated that it was Proponent Clawson who told her where to sign. She had seen Clawson visit Patricia at El Chico’s, and they would talk “in the little room.” At the signing of the will Proponent Clawson did not tell Patricia what to do. Patricia did not appear to be under the “influence of anything, such as, drugs or alcohol.”

Joyce Ward, Patricia’s mother, testified she and John G. Ward, Jr., Patricia’s father, were divorced in October of 1967. She was awarded Patricia’s custody. Patricia was about twelve years old then. She had no other children, but John Ward had a daughter by a former marriage, Proponent Louise Powell Ward, about twenty-seven years old. About three weeks before John Ward’s death in August 1973, Patricia ceased living with her mother. Proponent George Claw-son is the husband of Joyce Ward’s sister, and they (the Clawsons) live in Los Angeles. At the time of John Ward’s death, the Clawsons were in Joyce Ward’s apartment on vacation. After John Ward’s death, Clawson told Joyce she was still beneficiary on two of her ex-husband’s insurance policies and “you will, of course, turn this money over to Patsy [decedent] immediately.” She refused, and Clawson was “absolutely furious, irate; he screamed at me in a very very ugly tone that if I didn’t turn those over immediately, he was going to tell all of my sisters and brothers . . . how greedy I was.”

Testimony from the Registrar at A & M University seemed to indicate that Patricia’s grades were not as good as they should have been considering she graduated high .in her class in high school.

Barry J. Davis, a student at A & M was a friend of Patricia. In the summer of 1973 Patricia had called him “crying hysterically" that “she kept this desk calendar in the form of a diary. And in it, she had written what, to us kids, would be the worst thing that you could let your parents know about — about the things you were doing.” Her mother (Joyce) found the diary and told her father (John) about it. Because of this, Patricia had moved out of her mother’s house.

In September of 1973 when Patricia returned to A & M, she was “really scared” because of her father’s death. She talked of “Uncle George” (Proponent Clawson) and said Clawson advised her against taking out the insurance policy (the largest asset in her estate).

During the 1973 Christmas break Barry received a letter from Patricia. It said, in part:

“ T spent all Thursday morning downtown with my uncle. God! Does that man aggravate me! He is so authori tative & pushy. He expects you to hop at his every command & he doesn’t seem to realize that I have other things to do (such as work) other than what he says. We’ve decided not to go to court to get my appointment.’ ” etc.

Two letters identified as written by Patricia to herself indicate she might have had sex, dope, and alcohol at times, and it is fair perhaps to comment that they express unhappiness and dissatisfaction with herself. These “letters” were not dated, but Barry perhaps connected them somewhat near the signing of the will. Barry did know she had a will.

William Weiser, a student at A & M, testified that Patricia’s feeling toward her mother (Proponent Joyce Ward) was not good; that he knew Patricia had a will, and she had told him of the bequest to A & M; that Patricia had told him of her desire to set up a scholarship fund for female students. He thought of Patricia as being strong willed.

C. A. Noble married Contestant Joyce Ward’s sister. After Patricia’s funeral Proponent Clawson stated he felt a responsibility to see that Patricia’s will was probated.

Truxton Shaw, an attorney and C.P.A., had been acquainted with John Ward and Contestant Joyce Ward for many years. Shaw’s wife is Joyce’s aunt. Shortly after John’s funeral, Shaw and Proponent Claw-son had a conversation. Clawson asked Shaw if he believed John intended to change the insurance policies payable to Contestant Joyce to provide that Patricia be the beneficiary. Shaw responded that if John had wanted to change them he would have. Clawson also asked Shaw if Shaw thought they should be made payable to John’s daughter, Patricia. Shaw responded he knew of no moral reason for it. Shaw said John’s death depressed Patsy. Shaw received a letter from Proponent Clawson (Contestant’s Exhibit No. 1) reading “Sunday 8-26 Truxton [Shaw], I dashed this off under Patsy’s guidance to be effective until a neater one can be worked out later. I hope you will accept and understand. George [Clawson].” Attached to the letter was a copy of Patricia’s will. Shaw wrote A & M’s Dean of Admission (who was his wife’s nephew) that A & M had an interest in Patricia’s will. This was January 23, 1974.

Paul Rosamond, a salesman with New York Life Insurance Company, talked with Patricia after her father’s death. “And she knew exactly what she wanted to do with her pre-medical training, and later on medical school.” Rosamond later talked with Patricia when Proponent Clawson was present. “I [Rosamond] recommended that she [Patricia] make a Will.” Patricia responded that she had already thought about that. Patricia was saddened by her father’s death but alert. “She was a very sharp young lady.” Rosamond suggested she purchase life insurance and that Joyce, the mother, be beneficiary. She (Patricia) said, “[W]ell, no; I don’t want to leave it there.” Rosamond suggested a church or charity as beneficiary. Proponent Clawson was present and said the policy should not be purchased.

Later Rosamond went to College Station, took her to dinner and again discussed Patricia purchasing insurance. A week later at Rosamond’s home, she telephoned, said she desired a policy and would come to Rosamond’s home. She and a friend, Jim Gregory, came, signed the application, discussed the beneficiary, and Patsy said she wanted it to be her “estate.” Rosamond advised against this, but Patricia said, “I already have a Will.” She said, “[Y]es, I insist on it.” Patricia paid him four years premiums out of the money her father left her, the premiums amounting to about $1,300. The policy was never delivered to Patricia. After her death, Rosamond delivered it to Clawson’s attorney at Clawson’s direction.

James F. Gregory, director of personnel for a Texas company, knew Patricia well because Gregory’s daughter was a friend of Patricia. He thought Patricia was a “brilliant young lady,” went to Rosamond’s house with Patricia at her request. He remembers Patsy wanted the policy payable to her estate. “I would have to say Patsy was pretty firm in anything she said and did.” Patricia gave him a copy of the will, but he didn’t read it until after her death. He was aware Patricia was having trouble making passing average at A & M. Patricia had a “strained” relation with her mother, Contestant Joyce.

George Clawson, Proponent, resides in Los Angeles, California. He is an associate professor at California State College. He is a graduate of Baylor; never attended A & M. His wife and Contestant Joyce are sisters. He arrived in Texas for a vacation just a few hours before John (Patricia’s father) died, August 20,1973. He stayed in Texas eight or nine days. He came back to Texas for two days during the Christmas holidays in 1973 (when Patricia executed the will). After John’s death, he found that two of John’s insurance policies still named Joyce (the ex-wife) as beneficiary. He suggested to Joyce that Patricia get the proceeds of these policies. Joyce at first agreed, then later recanted. Joyce called him after Patricia’s death. He came to Texas, went to the funeral home, where he found the will and gave it to his attorney.

In Rothermel v. Duncan, 369 S.W.2d 917 (Tex.1963), the testatrix was ninety-three years of age, and suffered from various maladies. She was living on her son’s farm in Waller County. In 1939 she had executed a will leaving her estate equally to her sons, Bill and Louis. In 1955 Bill died; thereafter, she told Louis she wanted to make a new will leaving him all her estate. Louis drew the will, took it to the Waller County farm, and his ninety-three year old mother signed it, returning it to Louis. After the mother’s death, probate of the will was contested. A district court jury found that the will was the result of undue influence, and this court affirmed (365 S.W.2d 398).

In reversing the Court of Civil Appeals, the Supreme Court (at 922) laid down these rules:

“Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) The existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence.”

See also Dulak v. Dulak, 513 S.W.2d 205, 209 (Tex.1974).

These cases establish that in Texas a person of sound mind has a perfect legal right to dispose of his or her property as he or she wishes, and that a jury’s feeling that the disposition should have been different is immaterial. When we examine the evidence above set out and the inferences most favorable to support contestants, as we must, the most that contestants have proven is that perhaps Proponent Clawson is a man of strong will, and Patricia was troubled at the time of the execution of her will. There is absolutely no proof Patricia would not have executed this will but for undue influence exerted by Clawson which “overpowers the mind", Rothermel, supra.

We therefore sustain this point of error and remand this cause to the Probate Court of Brazos County, Texas, with instructions to probate the instrument dated August 26, 1973, as the Last Will of Patricia Aileen Ward.

REVERSED and REMANDED with instructions.

STEPHENSON, J., not participating.


author: NYE, Chief Justice.

text:
    Victor H. HILDYARD and Rio Ray Citrus, Inc., Appellants, v. FANNEL STUDIO, INC., Appellee.
    No. 1161.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 31, 1977.
    Rehearing Overruled Feb. 24, 1977.

      Brinkley L. Oxford, Oxford & Oxford, Edinburg, for appellants.
    David H. Hockema, Lauderdale & Hocke-ma, Mercedes, for appellee.
   OPINION

NYE, Chief Justice.

This is an appeal from a bill of review in which the trial court refused to set aside a default judgment previously rendered. From an adverse judgment, plaintiffs appeal to this Court.

The 60-day period for filing the record on appeal expired July 10, 1976. Appellants filed a motion to extend the time to file the transcript on July 16, 1976, pursuant to Rule 21c, T.R.C.P. The transcript was received July 19, 1976. Appellee filed a motion to affirm on certificate on July 22, 1976.

The question before the Court is whether appellants complied with Rule 21c in their request for an extension of time. The motion was made within the 15 day period following the 60th day and states that the transcript could not be filed on time because the district clerk could not prepare the transcript according to the directions of the appellants by the due date. A certificate of the district clerk dated July 20, 1976, and attached to the appellee’s motion to affirm on certificate shows she received the request for preparation of the transcript on July 1, 1976, which was nine days before it was due to be filed in this Court. Appellants’ attorney’s motion also states that his own schedule of civil and criminal trials kept him very busy during the period when the transcript should have been filed.

Rule 21c became effective January 1, 1976, and considerably eased the strict requirements for timely filing the transcript. Prior to 1976, Rule 386 provided for late filing only if the appellant showed “good cause” why the record could not be filed during the 60-day period following judgment or order overruling the motion for new trial. This established a very strict standard as interpreted in Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952) and Patterson v. Hall, 430 S.W.2d 483 (Tex.Sup.1968). The appellant had the burden to show good cause not only for his failure to timely file, but also for his inability to timely file.

With the 1976 amendments to the rules, the strict time limits for taking prescribed appellate steps were eased. A limited number of reported cases construe the meaning of “reasonable explanation” required by new Rule 21c. The Courts of Civil Appeals which have considered the issue are split in their interpretation of the rule.

A strict standard was announced by the Dallas Court in Sloan v. Passman, 536 S.W.2d 575 (Tex.Civ.App.—Dallas 1976, no writ). Justice Akin for the majority read into the rule a requirement for “reasonable diligence”. In its first of two holdings, the Court applied its “reasonable diligence” standard to the entire 60-day period, and not merely the time between the attorney’s receipt of the transcript and the expiration of 60 days. The appellant in Sloan v. Passman had delayed 42 days before requesting a transcript. No explanation at all was offered for this delay. The Court considered this lack of explanation conclusive against him.

In its second holding, the Court evaluated the appellant’s conduct between his receipt of the transcript and the 60th day, and concluded his diligence was insufficient to meet the “reasonable explanation” requirement of Rule 21c. The explanation for delay included illness of the attorney, an out-of-town trip by the attorney, and termination of employment by his office personnel on or about the due date. These events were held insufficient because the Court concluded reasonable diligence would have overcome all these difficulties and permitted timely filing.

A strong dissent in Sloan v. Passman was entered by Justice Guittard and reported in 538 S.W.2d 1 (Tex.Civ.App.—Dallas 1976, dissenting opinion). As stated hereafter, the dissent was subsequently cited by the Austin and Houston [14th Dist.] Courts of Civil Appeals upon their adoption of the standard proposed in the dissent. The dissent would define “reasonable explanation” as a showing that the delay resulted from inadvertence, accident or mistake. He would equate this standard with that applicable to avoidance of a default judgment upon prompt filing of a motion for new trial as announced in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939):

“ . . .A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident . . . .”

Justice Guittard would accept any plausible statement to show the delay was not deliberate or intentional, and would then determine reasonableness in the context of the length of delay. Sloan v. Passman (dissenting opinion), supra.

The Houston Court [14th Dist.] adopted the standard of the Sloan v. Passman dissent in Mulloy v. Mulloy, 538 S.W.2d 818 (Tex.Civ.App.-Houston [14th Dist.] 1976, no writ). Justice Cire wrote for the court stating: “We hold that a reasonable explanation under Rule 21c is ‘any plausible statement of circumstances indicating that failure to file within the sixty-day period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance. . . . ’ Sloan v. Passman, 538 S.W.2d 1 (Tex.Civ.App.—Dallas 1976) (dissenting opinion).” The Mulloy Motion for extension of time was denied, however, because even this liberal test was not met by the appellant who offered no explanation for his failure to file within 60 days. His explanation only concerned delay occasioned by time needed to correct errors in the record which he discovered after the end of the 60-day period.

The Austin Court set the same standard for reasonable explanation, also citing the Sloan v. Passman dissent. Justice Shannon stated: “In our view, ‘reasonable explanation’ permits a showing that such failure to file timely was not deliberate or intentional, but rather was the result of inadvertence, mistake, or mischance.” Stieler v. Stieler, 537 S.W.2d 954 (Tex.Civ.App.—Austin 1976, writ ref. n. r. e.). The point of delay in the Stieler case occurred after appellant received the statement of facts. Appellant’s explanation that time was needed to correct numerous errors in the statement of facts and that one of the attorneys had been ill was held sufficient despite a 38-day period before the due date, 28 of which passed before the attorney became ill.

One other court to comment on Rule 21c is the San Antonio Court in a per curiam opinion, Graves v. George Dullnig & Co., 538 S.W.2d 149 (Tex.Civ.App.—San Antonio 1976, no writ). The issue concerned the promptness of appellant in informing appel-lee that a cost bond had been filed. The Court commented on Rule 21c as manifesting a conscious effort to reduce the number of appeals being dismissed because of appellants’ failure to timely file the record.

“The amendments to our rules of procedure, which became effective on January 1,1976, were clearly intended to facilitate appeals by eliminating requirements which had become, in effect, traps for the unwary and resulted in numerous dismissals of appeals without reference to the merits of the particular cases. . . ”

Thereafter in identical cases from the San Antonio Court, James Delaney et al. v. Rose E. Adkins and Marcello Gallegos v. Truck Insurance Exchange, (not yet reported, but see Texas Court Reports, Volume 1, No. 5, p. 351), the Court stated that the harshness of the restrictive Rule 386 led to the adoption of Rule 21c, and held in effect that any plausible statement of circumstances indicating that failure to file within the 60-day period was not deliberate or intentional but was the result of inadvertence, mistake, or mischance would amount to a reasonable explanation. The Court held that appellant’s explanation that they were unable to timely file the record because it became lost was a reasonable explanation for the appellants to timely file the record late because such excuse shows that the failure was not deliberate or intentional. The San Antonio Court refused to rule on a situation involving the negligence of the attorney.

On the other hand, the Fort Worth Court agreed with the majority standard set out in Sloan v. Passman in a case factually similar to Sloan. In City of Wichita Falls v. Hollis, 539 S.W.2d 180 (Tex.Civ.App.—Fort Worth 1976, no writ), the Court denied leave to file a transcript after the due date. Justice Massey wrote for the Court which found a 34-day delay in requesting the transcript to constitute failure to comply with Rule 21c as a matter of law, citing the holdings and reasoning in the Sloan case. Thus, Fort Worth has also defined “reasonable explanation” to implicitly incorporate a reasonable diligence standard.

These decisions leave a split in the Courts which have addressed the meaning of “reasonable explanation” in Rule 21c. Two other courts have interpreted Rule 21c, but in contexts not applicable to the case before us. The Eastland Court held that Rule 21c did not permit the filing of the transcript and statement of facts 97 days after the motion for new trial was overruled by operation of law. Sanders v. West Texas Utilities Company, 537 S.W.2d 787 (Tex.Civ.App.—Eastland 1976, refused). Similarly, Rule 21c was held not to allow entertainment of a motion to extend time which was filed 24 days after the 60th day expired. Cousins v. Brown, 539 S.W.2d 233 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ).

These cases exhaust the reported decisions interpreting Rule 21c and its effect on failure to timely file the record. The Corpus Christi Court has not heretofore ruled on the meaning of “reasonable explanation” as set forth in Rule 21c. The use of the words “reasonable explanation” in place of “good cause” as previously required in Rule 386 shows an intent, we believe, on the part of our Supreme Court who promulgated the new rule to permit more flexibility in the appellate jurisdictional steps. The 15-day limit in Rule 21c during which the motion must be filed is the built-in limitation on delays caused by late filing.

There is nothing implicit in the language of the rule that requires the appellant to have exercised diligence. It merely states that his explanation must be reasonable, not that his conduct must meet any particular standard of diligence. To read in such a standard would require the appellate court to evaluate the conduct of the appellant’s attorney, presumably supported by affidavits to establish both the conduct and context in which it occurred, in light of what the court would consider appropriate under the circumstances. An ascertainable standard would be difficult to define at best.

In the case before us, the appellants requested the preparation of the transcript some 51 days after final judgment. (No motion for new trial was filed.) Their request reached the district clerk on July 1, nine days before the transcript was due in this Court on July 10, 1976. However, in explaining the inability of the clerk to prepare the transcript by the 60th day, the appellants offer reasons showing the clerk was required to get out two (2) transcripts (the original case and the Bill of Review); that the clerk had a busy schedule; and that the clerk was short of personnel because of the beginning of vacations. Although diligence in requesting the transcript earlier may be lacking, generally speaking, with today’s modern equipment that is available for the reproduction of records, a district clerk and her staff should be able to prepare a transcript on even shorter notice than nine (9) days. We are of the opinion that the district clerk’s inability to prepare a transcript in nine days in and of itself would not be the fault of an attorney for an appellant if he had properly informed the district clerk of the deadline for filing in the Court of Civil Appeals. Appellant’s attorney alleges that his own schedule has been very busy with civil and criminal trials, but he does not specifically state that his work was related to his failure to request a transcript more promptly.

Although Rule 21c does not envision that just any explanation will be sufficient, we do hold that if the explanation explaining the cause for the failure of a party to timely file is reasonable, and such explanation comports with judicial experience, then the motion should be granted. We Judges are familiar with the term “reasonable”. It is this criterion upon which we believe that we must decide whether or not the granting of the motion is proper. No fixed guidelines should be set as our discretion in such matters should control absent an abuse.

Appellant’s motion shows a reasonable explanation for the need of additional time. The motion for extension of time to file the transcript is therefore granted.

Appellee’s motion to affirm on certificate is denied.

OPINION ON THE MERITS

This is an appeal from the granting of a summary judgment which had the effect of denying appellants’ petition for bill of review. The appellants, Victor Hildyard, acting individually and on behalf of Rio Ray Citrus, Inc., sought by bill of review to set aside a default judgment taken against them by appellee Fannel Studio, Inc.

The original suit was brought in the nature of a sworn account by Fannel to recover some $6,775.54 for services rendered in providing certain advertising materials to Rio Ray Citrus, Inc. plus $2,250.00 in attorneys’ fees. Fannel’s petition alleged that Rio Ray’s corporate charter was forfeited on or about March 10, 1975 for failure to pay its franchise tax. It alleged that service of citation could be had by serving the Secretary of State by virtue of Article 2031b Tex.Rev.Civ.Stat.Ann. (1964). The petition further alleged that the corporation was a resident of Weslaco, Hidalgo County, Texas and that Hildyard was the principal stockholder of the corporation which is no longer in existence. The petition stated that Hildyard does not maintain a place of regular business in the state nor has he designated an agent upon which service of process could be made. Fannel alleged that service could be had upon the Secretary of State as agent for defendants. Fannel further stated that Hildyard’s last known address was at 1666 South University Boulevard, Denver, Colorado.

A default judgment against Rio Ray and Victor Hildyard was rendered on September 22,1975. On October 3,1975, the appellants Rio Ray and Hildyard, filed a motion to set aside the default judgment. Four days later the appellants filed a general denial and a special answer alleging as a defense to plaintiff’s claims, the two year statute of limitations. In addition, the appellants filed an amended motion to set aside the default judgment. The appellee, Fannel, filed its answer to appellants’ motions for new trial. On October 23, 1975, the trial court entered an order setting aside the default judgment, but on December 8, 1975, the trial court, apparently realizing it no longer had jurisdiction and control over its original judgment, vacated that order and reinstated the original default judgment. On December 12, 1975, the appellants filed their petition for bill of review to set aside the default judgment rendered contending that proper service upon the defendants was not made since Rio Ray had a duly registered agent upon which service could be had and that proper service had never been attempted upon either Rio Ray or Hildyard. Fannel, the appellee, filed an original answer and a motion for summary judgment. The trial court granted the summary judgment. It is from this judgment that appellants have perfected their appeal to this Court.

Appellants second point of error presents the controlling question of whether the trial court erred in granting appellee Fannel’s motion for summary judgment. Where a motion for summary judgment has been filed the trial court must determine if there are any issues of material fact to be tried. In determining this, all doubts as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 939 (1952); Lyons v. Paul, 321 S.W.2d 944 (Tex.Civ.App.—Waco 1958, writ ref’d n. r. e.). Together with the rule of summary judgment, we must also consider the rules which pertain to a bill of review which is the relief sought by the appellants.

A bill of review will not be granted unless the petitioner clearly satisfies the requirements of pleading and proof. The petitioner must allege under oath and prove: 1) a meritorious defense; 2) which he was prevented from making by fraud, accident or wrongful act of the opposite party; 3) unmixed with any fault or negligence of his own. Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.Sup.1974); Texas Machinery & Equipment Company, Inc. v. Gordon Knox Oil & Exploration Company, 442 S.W.2d 315 (Tex.Sup.1969); Gracey v. West, 422 S.W.2d 913 (Tex.Sup.1968).

The question, therefore, is whether or not the appellants’ petition in the bill of review and their summary judgment answer proof was sufficient to resist the granting of ap-pellee’s motion for summary judgment. The record before us contains only the appellants’ original petition in the bill of review. There is nothing in the record to show the type of notice used on the defendants in the default judgment case. We do not have the notice of citation, the sheriff’s return of service or any matter showing substituted service by the Secretary of State. Even if the appellants had standing in the courts of Texas they did not file any affidavits showing who the proper agent for service would be. The default judgment recited proper service of citation.

In addition, the appellants’ bill of review was insufficient. Although the appellants allege they had a good defense to the former judgment, they do not allege that they were prevented from making such defense due to the fraud, accident, or wrongful act of the opposite party. Since the record is void of proof and lacking in pleadings of one of the essential elements necessary to present a proper bill of review, the trial court was correct in granting ap-pellee’s motion for summary judgment. We might add that there is one additional reason for refusing to consider appellants’ bill of review. Although the appellants’ pleadings were verified by their attorney, they were not sworn to by the appellants, Rio Ray and/or Hildyard. See McCann v. Ward County, 423 S.W.2d 339 (Tex.Civ.App.—El Paso 1967, writ ref’d, n. r. e.); Warne v. Jackson, 273 S.W. 315 (Tex.Civ.App.—San Antonio 1925, writ dism’d); Patrucio v. Selkirk, 160 S.W. 635 (Tex.Civ.App.—Austin 1913, writ ref’d). See also Barnard v. Kuldell, 349 S.W.2d 313 (Tex.Civ.App.— Houston 1961, no writ).

The appellants, in their remaining points of error, attempt to attack the validity of the original judgment rendered by the trial court. The bill of review was the proper vehicle to attack this judgment. See McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961). Since the appellants did not satisfy the requirements of pleading and proof when they sought their bill of review, their remaining points of error have no merit here. See Griffith v. Conard, 536 S.W.2d 658 (Tex.Civ.App.—Corpus Christi 1976, no writ).

The judgment of the trial court is AFFIRMED.

      . Sec. 6 When any corporation, association, joint stock company, partnership or natural person becomes a non-resident of Texas, as that term is commonly used, after a cause of action shall arise in this State, but prior to the time the cause of action is matured by suit in a court of competent jurisdiction in this State, when such corporation, association, joint stock company, partnership or natural person is not required to appoint a service agent in this State, such corporation, association, joint stock company, partnership or natural person may be served with citation by serving a copy of the process upon the Secretary of State of Texas, who shall be conclusively presumed to be the true and lawful attorney to receive service of process; provided that the Secretary of State shall forward a copy of such service to the person in charge of such business or an officer of such company, or to such natural person by certified or registered mail, return receipt requested.

      . See Tex.Gen.Ann. Art. 12.14 (1964) which states that [A]ny corporation whose right to do business shall be thus forfeited shall be denied the right to sue or defend in any court of this State, except in a suit to forfeit the charter or certificate of authority of such corporation. The article further states that “[E]ach director and officer of any corporation whose right to do business within this State shall be so forfeited shall, as to any and all debts of such corporation, ... be deemed and held liable thereon in the same manner and in the same extent as if such directors and officers of such corporation were partners.”


author: AKIN, Justice.

text:
    UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. T. C. STRICKLIN, Appellee.
    No. 19165.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 1, 1977.

      Larry L. Gollaher, Thompson, Coe, Cousins & Irons, Dallas, for appellant.
    Corbet F. Bryant, Jr., Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellee.
   AKIN, Justice.

This is a motion by appellant pursuant to Tex.R.Civ.P. 21c requesting the court to permit the filing of a transcript on the sixty-third day after appellant’s motion for new trial was overruled by operation of law. We have previously granted appellant’s motion and ordered the appeal filed. In so ordering, we expressly overruled the prior opinion of this court in Sloan v. Passman, 536 S.W.2d 575 (Tex.Civ.App.—Dallas 1976, no writ) and adopted the view expressed by Chief Justice Guittard in his dissent in that case. Sloan v. Passman, 538 S.W.2d 1 (dissenting opinion). We now state our reasons.

Although appellant’s attorney had the transcript in his possession in ample time to file it with this court, he did not do so because he desired the maximum time permitted by the rules for the preparation and filing of his brief due to the length and complexity of the case. Accordingly, he retained the transcript until the date that he had calculated it to be due and then tendered it for filing. At that time our clerk discovered that appellant’s attorney had miscalculated his time for filing his appeal by one day, and since the sixtieth day fell on a Friday, he had tendered his transcript on the sixty-third day. In his motion he avers that the error occurred because he had previously miscalculated the date when his motion for new trial was overruled by operation of law; consequently, this miscalculation resulted in the transcript being tendered on the sixty-third day. The transcript was ordered thirty-one days after the motion for new trial was overruled by operation of law, and the statement of facts was requested two months prior to the date the motion was overruled by operation of law. Appellant argues that this is a “reasonable explanation” as required by Tex.R.Giv.P. 21c. In opposition, appellee asserts that appellant’s attorney’s deliberate act of waiting until what he thought to be the last day for filing the transcript was “calculation brinkmanship” and was not, therefore, a reasonable explanation under the decision of this court in Sloan v. Passman, supra. In that case, this court held that the appellant’s failure to give a “reasonable explanation” with respect to the first forty-two days after the motion for new trial was overruled and before ordering the transcript was conclusively fatal under rule 21c because diligence and promptness was implicit in rule 21c. We also held that the explanation presented for not filing timely after receipt of the transcript prior to the sixtieth day was not reasonable.

In his dissent in Sloan, Chief Justice Guit-tard defined reasonable explanation as “any plausible statement of circumstances indicating that failure to file within the sixty-day period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance.” This is the standard applicable to avoidance of default judgments enunciated by the supreme court in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 125 (1939). The following cases have adopted this standard originally enunciated by Chief Justice Guit-tard in his dissenting opinion in Sloan: Stieler v. Stieler, 537 S.W.2d 954, 957 (Tex. Civ.App.—Austin 1976, no writ); Mulloy v. Mulloy, 538 S.W.2d 818, 819 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ); Gallegos v. Truck Insurance Exchange, 539 S.W.2d 353, 354 (Tex.Civ.App.—San Antonio 1976, no writ); and Meshwert v. Meshwert, 543 S.W.2d 877 (Tex.Civ.App.—Beaumont 1976) writ granted on this point 20 Tex.Sup.Ct.J. 170 (Jan. 29, 1977).

We are now of the opinion that Chief Justice Guittard was correct in applying the Craddock standard to the reasonable explanation required by rule 21c. Accordingly, we have joined him in adopting this standard and expressly overrule the prior majority opinion of this court in Sloan. As the late Mr. Justice Frankfurter said in Henslee v. Union Planters National Bank, 335 U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259 (1949): “[WJisdom too often never comes, and so one ought not to reject it merely because it comes late.”

We have concluded that the interpretation in Sloan was too strict in that it was tantamount to the “good cause” test under former rule' 386, the harshness of which rule 21c was intended to temper. The Sloan opinion was also wrong in holding that a reasonable explanation need be offered for the entire sixty-day period. We hold instead that in this case only the time after appellant receives the transcript is material and requires explanation. An explanation of the delay in ordering the transcript would be necessary only if it prevented appellant from obtaining it in time for filing on the sixtieth day. Furthermore, no unreasonable delay is occasioned by this view because rule 21c requires that the motion to extend time must be filed within fifteen days after the sixtieth day, and a relatively short delay, such as that involved here, does not interfere with the orderly and timely disposition of appeals.

In so holding, we do not construe the term “reasonable explanation” as giving this court absolute discretion to permit late filing as the Corpus Christi Court of Civil Appeals held in Hilyard v. Fannel Studio, Inc., S.W.2d (Tex.Civ.App.—Corpus Christi 1976, no writ). Instead, this language limits our discretion to a determination of whether the explanation offered is reasonable under the Craddock standard. To hold that rule 21c leaves the appellate court with the discretion to permit late filing without some standard may result in differing degrees of strictness or leniency as shown by our opinions in Sloan. In applying the Craddock standard to the motion here, we hold that the appellant’s attempted late filing was not intentional, but was due to the attorney’s miscalculation of the date upon which his motion for new trial was overruled by operation of law. Accordingly, we hold that the explanation offered is a reasonable one within the ambit of rule 21c. Consequently, we ordered the appeal filed.