author: MASSEY, Chief Justice.

text:
    W. M. BOYLES and Ernestine Hyder, Appellants, v. Thomas D. THOMPSON, Appellee.
    No. 18113.
    Court of Civil Appeals of Texas, Fort Worth.
    July 5, 1979.

      Jearl D. Walker, Fort Worth, for appellants.
    Meier & Keller and Wallace T. Keller, Euless, for appellee.
   OPINION

MASSEY, Chief Justice.

Thomas D. Thompson, plaintiff, sued W. M. Boyles and Ernestine Hyder, defendants, seeking to collect damages, either as money due and owing by contract for real estate broker’s commission or as damages for breach of contract and because of action of the defendants, as conspirators, which sought to deprive him of payment of the commission. As against Boyles there was also charged that he had tortiously interfered with Thompson’s contractual rights with Hyder.

Trial was to a jury, upon the verdict of which, coupled with findings by the court under the provisions of Tex.R.Civ.P. 279, “Submission of Issues” as necessary to sustain ground of recovery, a judgment was rendered for Thompson. Boyles and Hyder appealed.

We affirm.

The important issues and answers of the verdict were:

“SPECIAL ISSUE NO. 1.
“Do you find from a preponderance of the evidence that there was a conspiracy between Mrs. Hyder and Mr. Boyles to deprive Mr. Thompson of a real estate commission?
“You are instructed that a conspiracy consists of a combination of two or more persons to do that which is contrary to law or to do that which is wrongful and harmful toward another person or to carry out an object not in itself unlawful by unlawful means.
“Answer: There was a conspiracy.
“SPECIAL ISSUE NO. 2.
“Do you find from a preponderance of the evidence that Mr. Boyles interfered with the right of Mr. Thompson to a real estate commission under the contracts in question?
“You are instructed that ‘interfered,’ as used in the above special issue means intentional and willful acts calculated to cause damage to one engaged in his lawful business and done with the unlawful purpose of causing damage or loss, without right of justifiable cause on the part of the one interfering, and where actual damage and loss resulted.
“Answer: He did interfere.”

(By answer to Special Issue No. 3 the jury -found Thompson’s efforts in behalf of Hyder was the procuring cause of the sale made by Hyder to Boyles.)

(By answer to Special Issues Nos. 4 and 5 the jury denied Thompson any exemplary damages.)

(By answer to Special Issue No. 6 the jury found amounts as reasonable attorneys fees for Thompson in trial and appellate courts.)

“SPECIAL ISSUE NO. 7.
“Do you find from a preponderance of the evidence that Mr. Thompson, Mrs. Hyder, and Mr. Boyles entered into an accord and satisfaction of their rights under the contracts in question?
“You are instructed that an accord is an agreement whereby one of the parties undertakes to give or perform, and the other to accept, in satisfaction of a claim arising from the contracts, something other than or different from what the claimant is, or considers himself, entitled to. A satisfaction is the execution or performance of such an agreement.
“Answer: There was not an accord and satisfaction.”

Thompson, a real estate broker, was a long time acquaintance of Hyder. He had acted as her real estate broker in transactions previous to that with which we are presently concerned. The particular properties with which the instant transaction was concerned were not “listed” with Thompson as is common in instances where a broker seeks a purchaser of his client’s properties and, if one found, participates in execution of contract of purchase and sale. Here there was nothing in writing until Thompson had successfully located the promised purchaser Boyles. Evidence of the fact of contract(s) consisted of the contract the written form executed by Boyles with Hyder, Hyder with Boyles, Thompson with Hyder and Hyder with Thompson on September 18, 1975. Actually there were three separate contracts, all identical in material aspect, upon Tracts 1, 2, and 3 and the total of the consideration to be paid by Boyles was $275,000.00 and the total of the “liquidated damages”, $2,600.00, of which— if Boyles breached his contract was provided to be divided by Hyder and Thompson on a 50-50 basis.

We copy in material aspect the contract relative to Tract 1.

“THE STATE OF TEXAS

“COUNTY OF TARRANT

“ERNESTINE W. HYDER, Executrix of the Estate of Elton M. Hyder, Deceased acting through the undersigned and duly authorized Agent, hereby sells and agrees to convey unto W. M. BOYLES or Assigns, hereinafter called Purchaser, the following described property:

(here follows legal description of realty)

the purchase price is $55,000.00, payable as follows:

“$55,000.00 Cash (of which Purchaser has deposited with the undersigned Title Co.

“$500.00 as part payment, . . .)

“Seller agrees to furnish Warranty Deed & Title Policy to said property, which shall be conveyed free and clear of any and all encumbrances except those named herein.

“If title policy is furnished, Purchaser agrees to consummate the sale within ten days from date title company approves title.

“Seller agrees when the title objections have been cured, to deliver a good and sufficient General Warranty Deed properly conveying said property to said Purchaser, and Purchaser agrees, when said deed is presented, to pay the balance of the cash payment and execute-the note and Deed of Trust herein provided for. Should the Purchaser fail to consummate this contract as specified for any reason, except title defects, Seller shall have the right to retain such cash deposits as liquidated damages for the breach of this contract, and shall pay to Agent therefrom the sum of $250.00.

“Seller agrees to pay the undersigned duly authorized agent a commission of 6% in cash for negotiating this sale.

“Executed in triplicate this 18th day of September 1975.”

It is to be understood that Thompson never had a contract with Boyles, it was Hyder who had a contract with Boyles. Simultaneous with the execution of the contract of Boyles with Hyder, and by the same instrument, was provided written evidence of the contract between Hyder and Thompson. Their contract read as follows:

“Seller (here Hyder) agrees to pay the undersigned duly authorized agent a commission of 6% in cash for negotiating the sale.”

Noticed on the contract(s) is that by the agreement of the essential parties a usual clause common to such contracts was deleted. Such clause read as follows: “[0]r Seller may enforce specific performance of this contract.”

By October 8,1975, for reasons not necessary to be detailed, Boyles had developed pronounced animosity to Thompson.

Prior to October 8, 1975, the title company had approved all titles. By authority of contractual provisions Thompson, acting for principal Hyder as agent and by her instruction, served letter notice on a Mr. Campbell, attorney for Boyles, on October 10, 1975, demanding “closing” on or before October 18th or forfeiture of the total deposit of $2,500.00 as liquidated damages (on Tract 1 contract $500.00; on Tract 2 contract $1,000.00; and on Tract 3 contract $1,000.00). The text of the letter follows:

“This letter is to inform you that my client, Mrs. Ernestine Hyder, is demanding that your client, Mr. W. M. Boyles, proceed to close the sale made on September 13, 1975. You have the signed contracts, an escrow check for $2,500.00, and title brought to date as of October 8,1975 in your possession.
“We are insisting that these contracts be closed as agreed by the Seller and Purchaser. In the event that your client is unwilling or unable to close by October 18th, 1975, we are requesting the forfeiture of the earnest money held by you as per the contract.
“Sincerely yours,
“/s/ Thomas D. Thompson
“Agent for Seller.”

Boyles refused to complete the transaction and agreed to the forfeiture of his $2,500.00 as “liquidated damages” (we need not engage the question of whether said amount was truly liquidated damages or was a mere penalty). Rattikin Title Company, for whom Campbell was also the agent and attorney, was holding the $2,500.00 in escrow pending “closing”. There is no question but that it was with the consent of Hyder and Boyles that the two checks issued by Rattikin Title Company on October 20, 1975, ($1,250.00 to Hyder and $1,250.00 to Thompson) was accepted by Hyder as the amount agreed in the event Boyles breached the September 13, 1975, contracts) to purchase Hyder’s properties. Thompson accepted the $1,250.00, as his entitlement from Hyder in the event Boyles breached his contract to purchase.

All that is written above is established by the record. In view of the fact that immediately subsequent to October 20, 1975, indeed on October 21st, Boyles and Hyder did proceed to agree to a transaction of sale and purchase of the same properties, at the same (questionable but so contended by Hy-der and Boyles) price of $275,000.00, issues arose upon which Thompson declared by his suit. This transaction was consummated as “closed”. There was no direct proof that there was any communication, and thus no direct proof of agreement, between Hyder and Boyles antecedent to October 21, 1975. However, by inferences Thompson believes proper to be drawn from the proven actions of Hyder and Boyles on such date and thereafter, there had occurred one or more occasions of communication between these parties prior to Boyles’ consent to forfeit his $2,500.00. Furthermore, Thompson believes that thereat was interference by Boyles with his contract with Hyder, an agreement and accord by Hyder to such interference, plus her concurrence with Boyles’ desires and agreement upon the action actually taken to carry out his objective. Thompson believes that such objective was that there would be permitted the ficticious termination of the contract of September 13, 1975, to be followed by a re-entry into contract by Hyder and Boyles whereby the former would sell and the latter would purchase the identical properties at the same or a lower price under circumstances by which Thompson would have no right to receive any commission.

In view of the foregoing the area of dispute is narrowed. The issues relate to whether, the sale made by Hyder to Boyles after October 20, 1975, was one as to which Thompson’s services was the procuring cause; — as related to the transaction of what Hyder and Boyles considered the concluded contract of September 13, 1975 (because it was not consummated by October 18,1975) whether there was express or tacit agreement by Hyder to a course of action suggested by Boyles, or insisted upon by Boyles, as a condition for his subsequent purchase of Hyder’s properties. Such course of action would be for Hyder and Boyles to handle matters so as to accomplish what they hoped or believed would conclude all rights of Thompson under the September contract.

Established, as it was admitted by Hyder and Boyles, was that their “new deal” of October 21, 1975, whereby Hyder agreed to sell and Boyles to purchase the identical properties upon an all cash consideration at the identical price of $275,000.00. (To pay all cash was slightly more onerous to and less favorable to the interest of Boyles than the original agreement in September under which he was to assume certain indebtedness of Hyder secured by liens upon the Hyder properties.) This agreement of October 21st was reduced to writing on October 22nd, 1975, and consummated in November of 1975.

Not a party to the suit below was attorney Campbell. “He wore several hats." Before and incident to the September 13, 1975, contract he was Boyles’ attorney; — on and after that date he was the Rattikin Title Company attorney as well, such title company having been agreed upon by the parties at Boyles’ insistence, and it was the same title company and attorney who arranged and concluded the ultimate sale made from Hyder to Boyles; — and after the Boyles breach of the September contract on either October 18th or 20th, 1975, Campbell was engaged as Hyder’s attorney to use some of the $20,000.00 loaned by Boyles to Hyder on October 21, 1975, to settle some indebtedness upon which her property stood as security in order to forestall threatened foreclosure proceedings.

Pursuant to the closing of the Hyder-Boyles transaction(s) in November of 1975, Rattikin Title Company, with Campbell its attorney, withheld from Hyder the sum of $16,500.00 as the Thompson broker’s fee entitlement, and it continued to withhold it from her for several months. Ultimate delivery thereof made to Hyder was not explained.

Before the October 21, 1975, Hyder-Boyles transaction was “closed” information came to the attention of Thompson which caused him to suspect that their transaction either pended or had been concluded. He telephoned Hyder. Hyder admitted to him that she had agreed with Boyles upon the October 21, 1975, transaction, but that it was not yet concluded. She furthermore admitted that the fact that she and Boyles had made the “new” agreement was supposed to be kept secret from Thompson and that she feared that if Boyles learned that Thompson had received her admission, or knew about the transaction, he (Boyles) might not go through with his agreement to purchase.

Reverting to the time when Hyder, as principal, directed Thompson, as agent, to write the October 10, 1975, letter demand upon Boyles to “close” the September contract: on this there is evidence that by that time there was conversation between Hyder and Thompson relative to alleviation of the Hyder need to have Boyles proceed to a “closing”. Both Hyder and Thompson agree that there was the conversation, but some disagreement concerning its date and what was said. According to Thompson, Hyder advised that she had been bailed out of her financial difficulties by her sister and brother-in-law who lived in Dallas; that they had agreed to purchase the properties for $250,000.00, with part of it advanced to take care of her money problems necessary to forestall the foreclosure proceedings (which had seemed imminent) so that her dire need to have Boyles “close” had ceased to exist. Of course, Hyder stood committed to consummate the transaction of sale to Boyles, at least until October 18th. Thompson’s obvious interest was served only if the sale to Hyder’s sister and brother-in-law was forestalled, with the sale to Boyles consummated. Only if there was completion of the sale to Boyles would he be entitled to a $16,500.00 commission as broker. If there be not such consummation, on account of Boyles’ breach of contract, all he would receive would be $1,250.00 agreed to be paid to him by Hyder. (We forego discussion on the different question of the Thompson entitlement if the contract failed of consummation because of breach on the part of Hyder.)

The Hyder testimony about what she told Thompson was different. According to Hy-der her only communication had been with her sister pursuant to a telephone call on October 20, 1975, the same day she received Boyles’ “forfeit money”, that there was never any agreement to sell involved. What Hyder received was a promise that she could have a loan from her brother-in-law and sister sufficient to forestall any foreclosure on her property. The sister and brother-in-law were never identified. Neither was tendered as a witness.

As hereinabove noticed, it was the day following October 21st that Hyder telephoned Boyles and then went to his office and made her “new” deal. At the same session at which she concedes she made the “new” contract to sell to Boyles she received $20,000.00 from him as a loan.

On the occasion for her communication with Boyles on October 21st Hyder testified that it was because she had received a call from a Bobby Malone the same day and that Malone expressed a desire to buy one of the three tracts she wished to sell. She conceived the idea to call Boyles because of Malone’s interest. She stated she called him with the thought that since Malone was interested in one of the tracts perhaps Boyles might be interested in buying the same three properties on their contract of September 13, 1975, because he would be able to sell one of them to Malone or in any event might wish to make the attempt. On the occasion of that call Boyles stated his willingness to make the same purchase previously contemplated if he could make an entirely “new” deal wherein Thompson would have no interest and would not be involved. Hyder was agreeable, especially if in so doing she could preserve the properties against foreclosure proceedings. It is obvious that she did not then have possession of any money of her sister and brother-in-law. Boyles agreed to supply her with money for this purpose. His $20,000.00 loan to her was secured by a lien on Tract 1 of Hyder’s property.

Upon receipt of the $20,000.00 Hyder employed the services of Campbell as her own attorney, to use to forestall the hazards of foreclosure proceedings. Campbell did efficiently serve Hyder as his client, and did promptly attend to her business so that the mortgage holders were satisfied.

Relative to occurrences on and after October 21, 1975, Boyles’- testimony was in accord with that of Hyder. He also testified that the animosity he had felt toward Thompson was sufficient for him as a reason to refuse to go forward with the initial transaction even before October 18, 1975. He wanted nothing to do with Thompson any longer nor with any transaction in which Thompson might have an interest. He was, of course, aware, and did agree, that by his breach of contract Thompson would receive 50% of the $2,500.00 advanced as his earnest money on the September contract. If believed, Boyles was willing to pay for (or lose) $2,500.00 if he could see that Thompson should profit only by 50% thereof, or $1,250.00, and not by his commission from Hyder of $16,500.00. Nothing was clarified relative to Hyder’s $1,250.00 profit, so it might be assumed that for her to receive it was benefit conferred with Boyles’ blessing.

As it in fact developed, Boyles did not suffer loss of the $2,500.00. In the “new” contract of October 22, 1975, was recited that $2,500.00 was advanced by him to Hy-der to be applied upon the $275,000.00 purchase price Hyder should receive “on closing”. From the evidence it was obvious that no new $2,500.00 was actually advanced by Boyles; furthermore obvious is that in the consummation of the “new” Hyder-Boyles transaction at the “closing” in November, 1975, Boyles received credit, nevertheless, as though such $2,500.00 sum had been so advanced.

Boyles further testified that there had been no communication with Hyder antecedent to October 21, 1975, when she telephoned him; that pursuant to his conversation with her on that date he decided anew to make the purchase from Hyder at the same price; that he agreed to do so upon being assured by Hyder that Thompson would not be associated with the sale and purchase in any way. In other words, according to Boyles (by necessary inference) he was assured that Hyder would not owe or pay Thompson any part of the consideration she should receive from Boyles. Boyles did not deny that he told Hyder that she should not communicate to Thompson any information of their “new” transaction, but should keep it secret from him. As Hyder expressed her statement to Thompson prior to the time Boyles gave his evidence, was “I am not supposed to talk about it.”

(The jury found that Thompson’s services to Hyder was the procuring cause of the sale finally made to Boyles. Thus Hyder’s liability to Thompson is to be affirmed under the law of contracts. Our discussion to follow will deal primarily with her liability by the law of torts and of her breach as a tort.)

There was other evidence not described hereinabove, but we deem that stated sufficient to create the legal presumption which, if not satisfactorily explained so as to make necessary the submission of a fact issue upon Hyder’s liability in tort, would entitle Thompson to a judgment against her for a 6% commission (or for damages which would be equivalent to a computed 6% commission on the $275,000.00 for which the property was sold). The measure of damages applicable by the circumstances would be identical either by tort law or by contract law. In other words, if Hyder' is not excused by explanations which if believed would show that Thompson was for some reason estopped to claim his entitlement by contract, or for some other reason should not have that to which the law would presume him to be entitled by reason of his performance, there would be exhibited Thompson’s entitlement to judgment against her. Hy-der’s evidence did not make the explanation which in law would make an issue for the jury on justification of Hyder to deny Thompson his commission.

On the foregoing see the following: Restatement of the Law, Restitution Ch. 7 (at 522) on “Benefits Tortiously Acquired” (1937); Restatement of the Law, Contracts § 295 (at 438), “Excuse of Condition by Prevention or Hindrance, § 303 (at 448), “Excuse or Condition . , and § 310 (at 459), “Re-Creation of Duty Otherwise Than by Performance or Acceptance of Performance” (1932); 17A Words & Phrases on “Fraud” at 63, “Gain to Wrongdoer” and at 135, “Trick or artifice” (1958); 5 Words & Phrases on “Bad Faith” at 15, “In general”, and at 21 “Fraud synonymous” (1968); 37 C.J.S. Fraud § 115 at 436, “ — Circumstantial Evidence” (1943); Restatement of the Law, Agency (at 1050), “Agent vs. Principal”, § 448, “Agent as Effective Cause”,. § 453 (at 1064) “Compensation upon Termination . .”, and § 454 (at 1069), “Revocation in Bad Faith of Offer of Compensation” (1933); 43 A.L.R. 1103, Annotation: “Broker’s right to commission where owner sells property to customer of broker at less than stipulated price” (1926) and supplement thereto at 46 A.L.R.2d 848 (1956); Havens v. Irvine, 61 Wyo. 309, 157 P.2d 570 (1945) with concurring and dissenting opinions; and Leimbach v. Nicholson, 219 Md. 440, 149 A.2d 411 (1959).

Furthermore, in view of the jury finding upon Hyder’s conspiracy with Boyles on and in connection with his tortious interference with Thompson’s contract Hyder would also be liable to Thompson for the same reasons Boyles would be liable to Thompson. This will be discussed at a later point.

Reverting to Hyder apart from her liability as a conspirator: though we deem it to have been unnecessary on the tort theory, her case was submitted to the jury and its findings were against her. Based thereon there properly was a judgment for Thompson.

The Thompson case against Boyles is somewhat more difficult. Necessarily it must be grounded in tortious interference with the Hyder-Thompson contract. There was never any contractual right of Thompson against Boyles for Boyles never at any time had a contract with Thompson. It was Hyder alone who had a contract with Thompson. Thompson’s case against Boyles rests only in tort and if it exists, it would be because of Boyles’ motive to see that Thompson should not make the contracted (with Hyder) broker’s commission. It was Thompson’s theory that because of this, and for no purpose useful to himself, that Boyles induced Hyder to proceed with the sale of her properties to him without complying with her agreement to^ pay a commission by her contract with Thompson. 33 Tex.Jur.2d Interference § 8 at 104 (“II. Business, Trade, or Calling) — In general” (1962). Furthermore, it was Thompson’s theory that Hyder was a willing accomplice in carrying out Boyles’ object and purpose and to that end entered into conspiracy with Boyles; that action followed to his detriment pursuant thereto. Hence, Thompson insists, the Hyder liability in tort because of her participation with Boyles in the tort of interference.

Boyles, by his own testimony, made one particular fact perfectly clear. Before the contractually provided date by which there should be “closing” of the Hyder-Boyles sale on October 18,1975, he had determined that he would do nothing which would create any right of Thompson to make any amount in money other than the $1,250.00 (50% of the forfeit money provided by the original contract).

Boyles’ theory of his non-liability to Thompson (as well as Hyder’s non-liability) was premised upon the belief that by permitting the expiration of time by which there should be “closing” under the September 13, 1975, contract Thompson would thereafter have no right of any kind. He believed that should he and Hyder enter into and consummate a “new” contract of sale on the same properties Thompson could have no legal interest and would have no right to damages from anyone. (This was also Hyder’s belief and theory.)

Boyles erred. He was entitled to breach his contract of September 13,1975, whereby his cost would be $2,500.00 as contracted if he should not, thereafter, make the purchase therein agreed upon. He was not entitled to thereafter make the same purchase with the same freedom from liability if his breach was motivated by a desire to deprive Thompson of his broker’s commission to Thompson’s injury for this would be an interference with Thompson’s contract with Hyder and it would be improper and without justification though he be not at all enriched as Hyder would be if she became thereby relieved of her obligation to pay a broker’s commission. The circumstances in themselves in such a case present evidence which raise inferences entitling the jury to find that Boyles had tortiously interfered with Thompson’s contract. Furthermore, what has already been observed with reference to Hyder and the inference that she was Boyles’ willing accomplice, would likewise entitle the jury to find her liable on the same ground if Boyles be found liable.

For example: assume by hypothesis that a prospective purchaser, situated as Boyles before October 18, 1975, be obliged — absent breach of contract — to consummate purchase by a certain time, decide to try to eliminate the seller’s liability to pay the broker, and should explain his theory or theories to the prospective seller and represent to the latter that by expiration of time, etc., he would be free to sell the property to him without obligation to pay any commission, — and either by express promise or by suggestion imply that thereafter the parties would go forward in consummation of the same, or substantially the same contract, by another “new” contract. It is obvious that such would amount to interference by purchaser’s inducement of seller not to abide by the contract with the broker theretofore made to pay a broker’s commission, or, what would amount to the same thing, to breach the contract theretofore made with the broker.

Extending the hypothesis of the example stated: and, if immediately subsequent to the expiration of time the seller and purchaser enter into and consummate what they deemed to be a “new" and independent contract in secret to substantially the same effect as their previous contract, the tortious interference with the broker’s contract would be complete, with right to bring and prosecute a cause of action for any damages thereupon created.

What we mean to say is that it is more difficult to settle upon applicable law relative to Boyles’ responsibility, if any, to Thompson than that relating to Hyder’s responsibility; that, nevertheless, in this ease the inferences permissible to be made by the jury from the evidence presented were such there was support for the jury finding that Boyles had wrongfully interfered with Thompson’s contract. The applicable section in Texas Jurisprudence is 83 Tex.Jur.2d Interference § 8 (at 104) “(Business, Trade, or Calling) — In General” (1962). Texas cases have not fully developed the law on the exact question. We have, therefore, examined the general law.

In Restatement' of the Law, (Torts Second) Ch. 87, “Interference with Contract”, § 766, “Intentional Interference with Performance of Contract by Third Person” (1979), the experts seem to have devoted a great deal of attention to the exact question. As syllabus to the section abbreviated declarations upon the law includes the following:

“One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.”

Comment 1 (at 13) under the foregoing (§ 766) recites the following:

“Inducement by refusal to deal. A refusal to deal is one means by which a person may induce another to commit a breach of his contract with a third person. Thus A may induce B to break his contract with C by threatening ... to sever, business relations with B unless B does break the contract. This situation frequently presents a nice question of fact. While, ... A may not, without some justification induce B to break his contract with C, A is ordinarily free to refuse to deal with B for any reason or no reason. The difficult question of fact presented in this situation is whether A is merely exercising his freedom to select the persons with whom he will do business or is inducing B not to perform his contract with C, That freedom is not restricted by the relationship between B and G; and A’s aversion to C is as legitimate a reason for his refusal to deal with B as his aversion to B. If he is merely exercising that freedom, he is not liable to G for the harm caused by B’s choice not to lose A’s business for the sake of getting G’s.
“On the other hand, if A, instead of merely refusing to deal with B and leaving B to make his own decision on what to do about it, goes further and uses his own refusal to deal or the threat of it as a means of affirmative inducement, compulsion or pressure to make B break his contract with C, he may be acting improperly and subject to liability under the rule stated in this Section.”

Illustration 2, under the foregoing, reads:

“2. Upon hearing of B’s contract with C, A writes to B as follows: T cannot tolerate your contract with C. You must call it off. I am sure that our continued relations will more than compensate you for any payment you may have to make to C. If you do not advise me within ten days that your contract with C is at an end, you may never expect further business from me.’ Thereupon B breaks his contract with C. A has induced the breach and is subject to liability under the rule stated in this Section.”

In the same Restatement, § 767, (at 26) “Factors in Determining Whether Interference is Improper”, the following is recited:

“In determining whether an actor’s conduct is intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:
“(a) the nature of the actor’s conduct,
“(b) the actor’s motive,
“(c) the interest of the other with which the actor’s conduct interferes,
“(d) the interests sought to be advanced by the actor,
“(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
“(f) the proximity or remoteness of the actor’s conduct to the interference and
“(g) the relations between the parties.”

Relative to the foregoing (§ 767) (at 27-38) on consideration of the factors, the following statements are found under the Comments:

“It is in the application of this Section that the most frequent and difficult problems of the tort of interference with a contract or prospective contractual relation arise.
“In each of these forms there is a requirement that the interference be both intentional and improper. .
“[T]his branch of tort law has not developed a crystalized set of definite rules as to the existence . . . of a privilege to act in the manner stated in §§ 766, 766A or 766B. Because of this fact, this Section is expressed in terms of whether the interference is improper or not, rather than in terms of whether there was a specific privilege to act in the manner specified. The issue in each case is whether the interference is improper or not under the circumstances; whether, upon a consideration of the relative significance of the factors involved, the conduct should be permitted without liability, despite its effect of harm to another. The decision therefore depends upon a judgment and choice of values in each situation. .
“[A]t least some of the factors listed in this Section are sometimes treated as going to the culpability of the actor’s conduct in the beginning, rather than to the determination of whether his conduct was justifiable as an affirmative defense. This bears on the issues of whose responsibility it is to raise the question of culpability or justification — that is, whether the interference was improper or not — in the pleadings and who has the burden of proof in the sense of the risk of nonper-suasion. Justification is generally treated as a matter of defense, but not always in the tort of interference with contractual relations. Thus a court that calls the tort ‘malicious interference’ and defines this as interference without justification, often decides that it is a part of the plaintiff’s case to plead and prove lack of justification. .
“Unlawful conduct. Conduct specifically in violation of statutory provisions or contrary to established public policy may for that reason make an interference improper. . .
“Economic pressure. Economic pressure of various types is a common means of inducing persons not to deal with another, as when A refuses to deal with B if B enters into or continues a relation with C, . . . The question whether this pressure is proper is answered in the light of the circumstances in which it is exerted, the object sought to be accomplished by the actor, the degree of coercion involved, the extent of the harm that it threatens, the effect upon the neutral parties drawn into the situation, the effects upon competition, and the general reasonableness and appropriateness of this pressure as a means of accomplishing the actor’s objective.
“The actor’s motive. Since interference with contractual relations is an intentional tort, it is required that in any action based upon §§ 766, 766A or 766B the injured party must show that the interference with his contractual relations was either desired by the actor or known by him to be a substantially certain result of his conduct. ... In determining whether the interference is improper, it may become very important to ascertain whether the actor was motivated, in whole or in part, by a desire to interfere with the other’s contractual relations. If this was the sole motive the interference is almost certain to be held improper. A motive to injure another or to vent one’s ill will on him serves no socially useful purpose.
“Burden of proof. . . . This tort has not fully developed to this stage and some of the factors stated in this Section may be significant in ascertaining whether the actor’s conduct is to be regarded as initially wrongful or culpable in nature. This tort is sometimes treated like the tort of negligence, with the result that it is a part of the plaintiff’s case to show all of the factors making the defendant’s interference improper. This is especially true in jurisdictions where the courts speak of malicious interference and define it as meaning" intentional interference without justification.
“The result is that there is little consensus on who has the burden of raising the issue of whether the interference was improper or not and subsequently or proving that issue; and it can not be predicted with accuracy what rule will ultimately develop. . . . [T]he question of whether the actor was competing with the other for the prospective business of a third person might be treated as a matter of culpability for which the burden of pleading and proving would be on the plaintiff, while the question of whether there was a special relation existing between the actor and the third party making it appropriate for the actor to advise freely with the third party might be treated as a matter of justification for which the burden would be on the defendant.
“Function of’court and jury. The jury determines whether the defendant’s interference with the plaintiff’s advantageous relation was intentional or not. But the eases fail to indicate clearly whether the judge or the jury makes the decision of whether the conduct was improper, or whether the function varies, depending upon the circumstances. In the case of most intentional torts, crystallized privileges have been established; and the court determines the circumstances under which a privilege exists and the jury determines what the actual circumstances are.”

See also: 97 A.L.R. 1273, Annotation: “Right of real estate broker against third person who prevented broker from earning commissions, or who received, or induced owner to pay to him or another, commission which the broker had earned” (1935); 146 A.L.R. 1417, Annotation: “Real-estate broker’s right to recover damages in tort upon ground that he was wrongfully prevented, from earning or collecting commissions” (1943); 33 Tex.Jur.2d Interference §§ 1-8 inclusive (at 93) (1962); Clements v. Withers, 437 S.W.2d 818 (Tex.1969); Sonnenberg v. Hajek, 233 S.W. 563 (Tex.Civ.App. — Galveston 1921, no writ), in the expression on trend of the law beginning on p. 564, left column at bottom, relative to liability for interference with the contract of a third person who thereby is injured.

The burden of proof as applied to the situation posed in this case is a factor for consideration. Our holding is that by the evidence in favor of Thompson a prima facie case was proved by which there was a presumption of law that fraud or similar improper motive on the part of Boyles was existent before October 18,1975, and he had intentionally interfered with Thompson’s September 13, 1975, contract with Hyder, Because of the presumption aforesaid, it became the burden of Boyles to eliminate its force by counter evidence in explanation and justification; and should this not be done there would be no compelling need for special issue findings in his favor for Thompson to be entitled to a judgment. Bryant v. Kelton & Uzzell, 1 Tex. 415 (1846). ' It is our opinion that neither the evidence of Boyles or of Hyder amounted to explanation and justification which made necessary the submission of the fraud question to the jury. It was the erroneous theory of both that no prima facie case had been proved by Thompson. Of course, whether necessary or not, there was submitted to the jury the question upon wrongful interference by Boyles with the Thompson contract “without right of justifiable cause” on the part of Boyles — and on the special issue the burden of proof was placed on Thompson., Perhaps we have included mere dicta in our opinion at this point.

Defensively Boyles and Hyder contended that the one and only contract of Thompson with Hyder, that of September 13, 1975, came to an end; with Boyles discharged by performing the contractual provision for delivery over to Hyder and Thompson of Boyles’ $2,500.00 as liquidated damages to Hyder; and with Hyder discharged by the delivery over to Thompson of $1,250.00 of the $2,500.00. In other words their contention is that before the “new” contract of sale of the same properties (from Hyder to Boyles), was ever agreed to be made the duties of anyone to Thompson had terminated and were at a final end — never to be reinstated — and, regardless of anything done or permitted by Boyles and Hyder, or either of them, impossible to supply the basis of any claim by Thompson on that or on the “old” contract. They both insist that Thompson’s receipt of $1,250.00 (of the $2,500.00) was completion and final settlement of the Hyder-Thompson contract, and the payment to him of his agreed “liquidated damages”. Of course, there was nothing in the contract relative to any liquidated damages for Thompson.

Upholding the decision of the lower court that there had been tortious interference with the plaintiff’s contract it was written by the court in So. Cent. Livestock, Etc. v. Sec. State Bank, Etc., 551 F.2d 1346, 1351 (5th Cir. 1977), viz:

“Under Texas law, a tortious interference with a contract entails intentional and willful acts calculated to cause damage and with the unlawful purpose of causing damage to the contracting parties without just cause or lawful right.” (Followed with citations to many Texas cases and cases in the 5th Circuit Court of Appeals to which Texas law would be applicable.)

By the same court in another Texas case another judgment relative to a Texas transaction was upheld in Leonard Duckworth, Inc. v. Michael L. Field & Co., 516 F.2d 952, 956 (5th Cir. 1975). Therein the court wrote:

“Recovery for malicious or tortious interference with contractual relations has been permitted specifically in real estate situations such as the instant case. See Myers v. Arcadia, 73 N.J.Super. 493, 180 A.2d 329 (1962). In Myers, a real estate broker brought suit against a buyer of property for the loss of his commission after the buyer secretly negotiated with the property ownér for the sale of certain real estate. When the buyer arid seller subsequently entered into a contract of sale, the broker claimed that he brought the parties together and was therefore entitled to his commission. The court in agreeing with the plaintiffs position stated:
‘We hold that the rule to be applied in a case such as the one at bar is that the broker may recover when the jury is satisfied that but for the wrongful acts of the defendant it is reasonably probable that the plaintiff would have effected the sale of the property and received a commission’.”

We hold against the Hyder and Boyles complaints relative to evidence and jury findings on Boyles’ interference and on the fact that Boyles and Hyder had conspired. The evidence was sufficient. The jury findings for Thompson were not so contrary to the greater weight and preponderance of the whole of the evidence in the record as to be clearly erroneous.

True is that which was stated a long time ago: that when men enter into conspiracies they are not likely to call in a witness. They resolve their schemes clandestinely and in secret. Their purpose is imposition and deception; and secrecy is necessary to its accomplishment. In such cases the injured party must necessarily have recourse to circumstantial evidence. For it is only by the inferences and deductions which men properly and naturally draw from the acts of others in such cases, that their intentions can be ascertained. They are not likely to proclaim them in the hearing of witnesses. Jernigan v. Wainer, 12 Tex. 189 (1854); 12 Tex.Jur.2d § 20 (at 340) Conspiracy “Evidence” (1960).

There is complaint on appeal because of the absence of a special issue,— conditioned upon the jury’s finding that Boyles did interfere with Thompson’s right to commission, as the jury found, — making the further inquiry about whether such amounted to a proximate cause of Thompson’s damages. We have examined the objections and exceptions taken to the court’s charge to the jury and find no properly presented objection to absence of such a special issue. Under these circumstances, such an issue, not being an independent ground of recovery but one necessarily referable to the interference finding, the issue of proximate cause is to be deemed as found by the trial court in support of the judgment. Tex.R.Civ.P. 279 “Submission of Issues”. Actually, in this case, the fact of Boyles’ interference was proximate cause of Thompson’s damages as a matter of law.

It is true that in the objections and exceptions taken relative to one special issue, that in answer to which the jury did find Boyles’ interference to have existed, were complaint reasons given letters (a) to (j), inclusive, and in the last of these there was the objection to the submission of that issue because “there is no submission to the jury as to whether such interference was a proximate cause of the alleged injury to Plaintiff”. This objection to a different special issue, even if it not be deemed concealed within a mass of objections, would not suffice to preserve the error, if any, because of the omission of another conditionally submitted proximate cause issue.

In the court’s charge there was not submission of any issue on actual damages, though there was submission on the question of exemplary damages. The jury refused to find exemplary damages. The judgment rendered and entered was one which gave Thompson the exact amount which he would have earned had the initial contract between Boyles and Hyder been completed, with consideration paid. In other words, that awarded Thompson was the amount to which he was entitled had there been a specific performance of his contract with Hyder. The same amount, in law, would be the damages to which Thompson would be entitled because of the loss of his bargain. There was no evidence in the record raising any question but that Thompson’s damages as the result of the breach of his contract and as result of Boyles’ interference resulting in such breach of contract would have been anything other than those to which he would be entitled by loss of his bargain. There was no error in failure to submit the issue for under these circumstances the court did not err in rendering judgment as it was made for the correct amount as the legal measure of damages. Restatement of the Law (Torts Second), Ch. 37, “Interference with Contract”, § 774A “Damages” (at 54) (1979).

Reference is here made to Special Issue No. 1. By complaints directed to this issue in objections and exceptions Hyder and Boyles contended that the proper burden was not placed on Thompson to the prejudice of his opponents, because it was too broad, vague, and comprehensive in that it permitted the jury to find conspiracy upon the moral standard of doing that “which is wrongful and harmful toward another person” without a concerted action to accomplish an unlawful purpose or doing some purpose by unlawful means; — further, because it contained incomprehensible language “to carry out an object”, thereby permitting the jury to speculate without restriction in its consideration and finding of a concerted action to accomplish an unlawful purpose or some purpose by unlawful means.

Error is further assigned to the refusal of the trial court to submit the defendants’ requested jury instruction reading: “Conspiracy, as that term is used herein, is by combination of two or more persons by agreement and by concerted action to accomplish an unlawful purpose or some lawful purpose by unlawful means.”

We approve the definition of “conspiracy” given by the court in its charge. Having done so as applied to the definition we overrule the complaint presented because the court refused to submit Hyder’s and Boyles’ specially requested issue.

We also overrule the complaints leveled against the issue which was submitted to the jury, incorporating the instruction upon that which constitutes “conspiracy”.

Our conclusion is that Hyder was bound by contract to pay Thompson his agreed commission. The evidence is without dispute that she intentionally withheld it from Thompson in the erroneous belief that she had successfully escaped any liability by rules of law. She did owe the commission by contract. Her refusal to pay it was breach of contract; and the manner in which it was done made of it a tortious breach of contract. Her participation with Boyles in his interference constituted additional tort. She was liable to Thompson both in contract and in tort, though it makes no difference whether recovery from her be on the one theory or the other in this instance for the measure of Thompson’s recovery is the same under either theory.

In the instant case the jury’s answer to Special Issue No. 1 had little essential effect. It did remove any question but that both Boyles and Hyder, as conspirators, each became party to all acts done by the other in pursuance of the conspiracy. Bourland v. State, 528 S.W.2d 350 (Tex.Civ.App. —Austin 1975, writ ref’d n. r. e.). Of course, it is in the action pursuant thereto and not the fact it was the result of a conspiracy that any cause of action would accrue to one suffering injury as a consequence. While in this case it enabled Thompson to show Hyder’s liability under tort as well as by contract law it was not essential so to do to establish Hyder’s liability. Furthermore, under all the circumstances the points of complaint relative to Special Issue No. 1 are overruled because of Tex.R.Civ.P. 434, the Texas “harmless error rule”.

Reference is hereby made to Special Issue No. 2. By complaints directed to this issue in objections and exceptions Boyles contended that there was error because (a) of failure to inform the jury as to the meaning of the words “without right of justifiable cause on the part of the one interfering”; (b) of failure to inform the jury that a person may lawfully refuse to have business relations with another person for any reason including whim, caprice, prejudice or will; and (c) of failure to instruct the jury that a person may lawfully induce others to refrain from having business relations with a third person, although it is injurious to such third person, provided the first person acted in the subservience of a legitimate interest of his own.

Because of the jury’s finding that Thompson’s efforts was the procuring cause of the sale made by Hyder, considered in connection with the provisions of the contract of September 13, 1975 (relative to Hyder’s responsibilities to Thompson), was established his contractual right to the agreed commission from Hyder. On this we have written heretofore. By the instruction given the jury in the court’s charge when they found that Boyles interfered with such right of Thompson it also found that without right of justifiable cause Boyles acted willfully and intentionally in a way calculated to cause and which did actually cause damage to Thompson.

In considering the complaints by points of error there is necessity to consider the evidence. When this is done it is inescapable that the jury was entitled to infer from facts proved that prior to what both Boyles and Hyder consider to have amounted to the termination of Thompson’s rights by the contract of September 13, 1975, Boyles had suggested to Hyder and Hyder had agreed to exactly what did later occur, to-wit the failure to close as contracted between Boyles and Hyder and the payment of the $2,500.00 of Boyles’ money as provided by the contract, promptly followed by a consummation of the identical contract — as between Hyder and Boyles, but with Thompson excluded. We have heretofore held that there was no evidence of any “justifiable cause” for Boyles’ interference. Furthermore, Boyles did not refuse to have business relations with Hyder, for whom Thompson was agent, but with Thompson in the capacity of agent. Boyles’ desire was to inhibit or at least discourage Hyder from having business relations with her agent Thompson without excuse of proper reason, and, more importantly, because it is what is involved, to cause Hyder to attempt to deny Thompson’s right to payment for his services in her behalf. (Of course, there was Hyder’s payment to him $1,250.00 of the $2,500.00 she is to be deemed to have received of Boyles’ money.)

Under the circumstances the complaints in question were without merit as inappropriate in view of the evidence, or want of evidence to demonstrate any justifiable cause for Boyles, and furthermore inapplicable because Thompson’s services to Hyder were already performed relative to the initial Hyder-Boyles contract. In any event the points in which there was complaint are also overruled because of Tex.R.Civ.P. 434, the Texas “harmless error rule”.

There is complaint because of the refusal by the trial court to submit the defendant’s specially requested issue, reading: “Do you find . . . the conduct of Thomas D. Thompson, plaintiff, in insisting upon either a closing of the three contracts dated September 13, 1975, or forfeiture of the $2,500.00 ... of the said contracts on October 18, 1975, and the acceptance of such escrow funds, constituted a completion and termination of such contract?”

The jury refused to find for Hyder and Boyles, or at least for Hyder, upon special issue No. 7, that the acceptance of the $2,500.00 of Boyles’ money by Hyder and Thompson’s acceptance of 50% thereof, $1,250.00, from Hyder was an accord and satisfaction by each of them of their rights under the contract in question. This issue and the findings returned by the jury thereto is not attacked. It was the proper inquiry. The special issue requested would at most amount to another phase or different phase of the inquiry made by special issue no. 7, and, as such, should not be submitted by express provision in our Rules of Civil Procedure. Tex.R.Civ.P. 279, “Submission of Issues”. If there was a completion and termination of the parties’ several rights under the contract of September 13th it could only have occurred by performance and consideration by way of performance or by accord and satisfaction of claims arisen or which might arise under the same contract as the result of its breach. Undisputed is that rights were not extinguished by specific performance, so the only proper inquiry by which Hyder and Boyles’ affirmative defense might be presented was that which was made to the jury relative to accord and satisfaction. The trial court did not err in refusing to submit the specially requested issue.

Judgment is affirmed.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    CITY PUBLIC SERVICE BOARD OF SAN ANTONIO, Appellant, v. Ira M. KARP and Annette Karp, Appellees.
    No. 16219.
    Court of Civil Appeals of Texas, San Antonio.
    July 11, 1979.
    Charles J. Muller, III, San Antonio, for appellant.
    Ralph M. Mayen, Mayen, Karp & Smith, San Antonio, for appellees.
   OPINION

MURRAY, Justice.

This is an easement case. Ira Karp and wife, appellees, brought an action for declaratory judgment against the City Public Service Board of San Antonio, appellant, to construe the extent and scope of a transformer easement on appellees’ lot and for judgment that appellant is limited in its use of this easement to an underground transformer. Appellees also sought an injunction against appellant to permanently enjoin it from placing an aboveground transformer on this easement. The trial court, without a jury, granted judgment for ap-pellees and restricted appellant’s use of this easement to an underground transformer. From this judgment appellant perfected its appeal to this court.

On May 31, 1975, appellees purchased a lot with a one-family house on it in the City of San Antonio. Appellees’ warranty deed expressly provides: “This conveyance is subject to transformer easement in northwest corner of lot as per plat recorded in Volume 5970, pages 198-199, Deed and Plat Records of Bexar County.” The plat shows a five by five foot transformer easement drawn in the northwest corner of Lot 8, which is appellees’ lot. It is labeled as follows: “5X5 Transí. ESMT.” The plat also provides: “The owner of the land shown on this plat . . . dedicates to the use of the public forever all streets, alleys, parks, water courses, drains, easements and public places thereon shown for the purpose and consideration therein expressed.”

In August 1968 appellant constructed within the designated easement area an underground transformer vault, installed an electric transformer, and covered the vault with an iron grate, which was level with the surface of the ground. Appellees’ residence and eight other other residences in the subdivision receive electric service through this unit. The transformer has been continuously maintained and used on the easement from August 1968 to the date of trial.

The evidence reflects that because of the seepage of groundwater into the transformer vault, the transformer has not provided adequate electric service to the public since this type of transformer cannot withstand the corrosive effects of water and mud. Since 1973 this transformer has caused five outages of electrical service to the area it serves. Four of these outages were caused by water and mud in the vault, and on three of these four occasions it was necessary to completely replace the transformer unit. For these reasons, City Public Service Board established a policy to replace all of the underground transformers (approximately 3,500) presently in use in San Antonio. City Public Service Board decided to make the transformer on appellees’ lot one of its first replacements because of the greater problems presented by this unit.

In February 1978 appellant advised ap-pellees that it intended to construct within the easement a pad-mounted transformer to replace the underground transformer. The replacement unit is a box-shaped metal and plastic transformer that would be attached to a three and a half by three and a half feet concrete slab and would extend about forty inches above the level of the presently existing iron grate. Appellees notified appellant that the proposed construction would be in excess of their easement rights and refused to allow this construction. It was agreed between the parties that no construction would proceed and that appel-lees would commence an action for a declaratory judgment to obtain a judicial determination on the extent and scope of appellant’s easement. The trial court, in entering judgment for appellees, held that because the easement was general, vague and indefinite, future use of the easement is restricted to its initial use.

In its conclusions of law the trial court, relying on Dwyer v. Houston Pipe Line Company, 374 S.W.2d 662 (Tex.1964) and Pioneer Natural Gas Company v. Russell, 453 S.W.2d 882 (Tex.Civ.App. — Amarillo 1970, writ ref’d n. r. e.), held that this easement, which is general, vague, and indefinite on the extent of the burden to be imposed on appellees’ lot, became fixed and definite after the installation and maintenance of an underground transformer with the acquiescence of all parties concerned for ten years. The trial court also held that appellant cannot construct within its easement the pad-mounted transformer or any other structure wholly or partially above ground level because it would exceed appellant's easement rights as fixed by the original construction of the underground transformer.

Appellant primarily contends that based on the undisputed evidence the trial court erred in not entering judgment for the City Public Service Board that its transformer easement, as a matter of law, could be used for the installation of a pad-mounted transformer. In response to appellant’s contentions, appellees argue that this transformer easement (with the exception of the location and size of the easement) is general, vague, and indefinite in regards to the extent of the burden imposed on appellees’ premises. The easement grant contains no express provision for future construction of any structure either below or above ground. Appellees, relying heavily on the holdings in Dwyer and Russell like the trial court did, further contend that when appellant installed the underground transformer in this indefinite easement with the actual or implied consent of the parties and maintained it for ten years, the scope, extent, and limits of the easement were fixed and made certain. Therefore, appellant may not now impose new, additional burdens upon appel-lees’ premises by constructing a pad-mounted transformer on its easement.

The trial court’s and appellees’ reliance on Dwyer and Russell is misplaced. Dwyer involved the interpretation of an easement granted for a pipeline across Dwyer’s property. The granting clause of the easement obtained by the pipeline company read, “First party . . . does hereby grant, sell and convey unto second party a right of way to lay, maintain, operate, repair, and remove a Pipe Line for the transportation of gas.” The parties struck out the words “and remove” and also deleted a paragraph in the habendum clause giving the future right to construct additional pipelines over the servient owner’s land for additional consideration. This instrument contained no specifications for the size of the pipeline or the width of the easement, nor did it contain a metes and bounds description of the easement. Because this limited easement was totally silent on its location and boundaries, the trial court held that the pipeline company had no right to remove an eighteen-inch pipeline and replace it with a thirty-inch line since it constituted an additional servitude.

In Pioneer Natural Gas Company v. Russell an easement was granted to West Texas Gas Company for a right-of-way of sufficient width across Russell’s property to lay, maintain, operate, and remove parallel pipelines. This easement contained no express provision for the laying of additional pipelines in the future. Following the granting of this easement in 1928, West Texas Gas Company laid an eight-inch gas transmission line across the property. In 1968 Pioneer Natural Gas Company, the assignee of West Texas Gas Company, laid a ten-inch gas transmission line parallel to and about ten feet south of the eight-inch line. Pioneer Natural Gas did not obtain a written right-of-way easement from Russell to cover the ten-inch pipeline. Russell filed a trespass to try title suit against the gas company alleging that the laying of the additional pipeline was not authorized and thus constituted a trespass. The trial court granted Russell’s motion for summary judgment. On appeal, the court of civil appeals, citing Dwyer, held that under this easement, which granted a right-of-way of sufficient width to permit grantee to lay and maintain parallel pipelines for the transportation of oil and gas, the grant became fixed and certain when the grantee laid the eight-inch pipeline in 1928. The gas company could not enlarge the grant forty years later by laying the ten-inch pipeline. This easement also contained no specifications for the size of the pipeline or the width of the easement, nor did it contain a metes and bounds description of the easement.

Both Russell and Dwyer based their decisions on a rule enunciated in Winslow v. City of Vallejo, 148 Cal. 723, 84 P. 191 (1906). In Winslow the City of Vallejo, which owned and operated a water system, laid a ten-inch iron pipeline in 1893 across Winslow’s land to convey water to the City from a reservoir fourteen miles away. This water line was laid across Winslow’s land under a grant of a general right-of-way that had no specifications for the width and exact location of the easement. But allowed grantee to use as much land as was necessary to lay and maintain water pipelines on or near a presently surveyed line. About nine years later the city attempted to lay an additional fourteen-inch pipeline across Winslow’s land. The Supreme Court of California noted that the conveyance was “general in its terms” and afforded “no basis for determining the number of pipes, their size, or their exact location.” Id. 84 P. at 192. Consequently, the Court, in holding that the City of Vallejo did not have the right to lay the additional pipeline, based its decision on the following rule: “[Wjhere a grant of an easement is general as to the extent of the burden to be imposed on the servient tenement, an exercise of the right, with the acquiescence and consent of both parties, in a particular course or manner, fixes the right and limits it to a particular course or manner in which it has been enjoyed.” Id.

This rule is inapposite here. In our case, the easement is not general, but is specifically defined in its location (northwest corner of lot 8) and size five by five feet). It is also limited in its purpose to a transformer easement. The trial court’s holding that the easement is general, vague, and indefinite is erroneous as a matter of law. Therefore, appellant’s easement rights were not fixed by the original construction of the underground transformer. See Central Power and Light Company v. Holloway, 431 S.W.2d 436 (Tex.Civ.App.— Corpus Christi 1968, no writ).

An easement owner, being the dominant tenant, is entitled to the free and undisturbed use of its property for the purpose of the easement. Gulf View Courts, Inc. v. Galveston County, 150 S.W.2d 872 (Tex.Civ.App. — Galveston 1941, writ ref’d). An easement granted for general purposes includes not only the use required at the time of the grant, but also the right to use the easement for any purposes connected with the use to which the property is being put. Peterson v. Barron, 401 S.W.2d 680 (Tex.Civ.App.- — Dallas 1966, no writ). Peterson v. Barron also involved an easement that is general in its purpose, but specifically defined in its location. Here, an easement deed between the parties gave the grantee the right to construct, reconstruct, and maintain drainage and utility facilities within a specifically designated easement. Under this grant the court held that the grantee had the right not only to install a sewer, but also to use the area covered by the easement for other drainage and utility facilities, including a drainage canal.

The creation of an easement involves looking forward by those participating in its creation, to a future use by the dominant tenant that is not inconsistent with or repugnant to the creating instrument. Restatement of Property § 484, Comment a (1944). Comment “a” goes on to state:

This use, by necessity, must be made under conditions somewhat different from those existing at the time of the conveyance. In the absence of language specifically negativing it, it will be assumed that the parties contemplated changes in the use of the servient tenement made necessary by the normal development in the use of the dominant tenement.

Id.

The grant in this case clearly gives the City Public Service Board the right to use its easement for transformer purposes, which necessarily includes the right to install a pad-mounted transformer within the confines of its easement as a matter of normal development. Accordingly, the judgment of the trial court is reversed and rendered that City Public Service Board can replace within the boundaries of its easement the underground transformer with a pad-mounted transformer.


author: COLEMAN, Chief Justice.

text:
    Tom FILLION, Individually and as Former Administrator of The Estate of Jorge A. Veronelli, Deceased, et al., Appellants, v. Josephine N. Watters OSBORNE, Appellee.
    No. 17415.
    Court of Civil Appeals of Texas, Houston. (1st Dist.).
    July 12, 1979.

      Sidney L. Farr, Funderburk & Funder-burk, Don Karotkin, Houston, for appellants.
    Wolfe & Hamilton, Dan R. Wolfe, Houston, for appellee.
   COLEMAN, Chief Justice.

This is a suit by a creditor of a decedent’s estate, Josephine N. Watters Osborne, against the former administrator of the estate, Tom Fillion, and the surety on the administrator’s bond, Lawyers Surety Corporation (“LSC”). Osborne sought to recover a debt previously established by judgment against the estate from the administrator, personally, and the surety on his bond, and attorney’s fees.

Trial was to the court, sitting without a jury. From a judgment in favor of Osborne and her attorney for the full amount sought, Fillion and LSC now appeal. The judgment will be reversed.

Osborne obtained a judgment against Fil-lion, in his capacity as administrator, in the sum of $7,115.43, plus $711.34, as attorney’s fees. This judgment was approved by the Probate Court as a fourth class claim against the estate in October of 1975. After demands for payment were not acted on by the administrator, Osborne filed a pleading entitled “motion for final accounting and payment of claim” in which she sought recovery against the administrator and his bondsman as authorized by Article 328 of the Texas Probate Code. .After a hearing on March 5, 1976, a proposed order was brought to the attention of the probate judge, but he declined to enter this order. Thereafter an amended petition was filed which for the first time made LSC a party to the case. In this petition, several breaches of fiduciary duty on the part of the administrator were alleged. LSC replied to this petition asserting that since a final accounting had not been filed by the administrator a hearing on the matter was premature.

On July 8, 1977, the court on its own motion removed Pillion as administrator and ordered him to file a final accounting.

On March 15, 1978, Osborne filed her second amended petition complaining of Pillion and LSC in which she elaborated on her charges of misconduct on part of the former administrator, and for the first time asserted a claim for her costs including $3,000.00, attorney’s fees, claiming that such costs are recoverable under § 245 of the Probate Code. Richard Snell, the successor administrator, was notified of the pendency of the suit, but was not made a party to the suit.

When this cause came on for a hearing before the probate judge, Pillion was called as a witness by the plaintiff and was interrogated by the plaintiff’s attorney. During the course of this testimony, the judge inquired if the remainder of the testimony related to the question of mismanagement. On receiving an affirmative answer from the attorney for Osborne, the court announced that he was going to recess the hearing “in order for them to file a more complete accounting. . . After an amended accounting was filed, the court rendered judgment for the plaintiff without, so far as the record shows, further hearing in the matter.

Section 328 of the Probate Code (Vol. 17(b), Y.A.C.S.) creates a cause of action against the representative of an estate and his surety, where he fails to pay on demand any money ordered by the court to be paid to any person when there are funds of the estate available. The section further provides that upon an affidavit reciting demand for payment and failure to pay, the court may cite the representative and the surety on his bond to show cause why they should not be held liable for the debt, interest, costs and damages. Upon return of this citation duly served, if good cause to the contrary be not shown, the court is directed to render judgment in favor of the holder of the claim “for the amount theretofore ordered to be paid or established by suit, and remaining unpaid, together with interest, costs, and damages at the rate of five percent (5%) per month for each month or a fraction thereof that the payment was neglected to be paid after demand therefor.”

There appear to be no cases construing § 828, but the interpretative commentary states: “, . . under this section, the provisions of the former statutes are combined in such fashion that a representative who does not comply with an order of payment may, at the option of the creditor, be held personally liable either before or after the issuance and return of execution.”

The evidence in this case establishes that the probate judge refused to issue an order requiring payment of the claim in suit. Osborne has failed to establish a cause of action under § 328.

The administration of this estate is still pending in the probate court. Section 224 of the Probate Code provides that a successor administrator shall proceed to administer such estate as if his administration was a continuation of the former one. He shall be required to account for all the estate which came into the hands of his predecessor and shall be entitled to any order or remedy which the court has power to give in order to enforce the delivery of the estate and the liability of the sureties of his predecessor for so much as is not delivered. He shall be excused from accounting for such of the estate as he has failed to recover after due diligence. It appears, therefore, that it is the right and duty of the successor administrator to recover any assets of the estate which have been misapplied by the original administrator by suit or other proceeding against the former administrator and his sureties. It then becomes his obligation to secure a proper accounting by the former administrator, and to pay such claims as are properly payable from the remaining assets of the estate. Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801 (1956); Diaz v. Chinn, 150 S.W.2d 411 (Tex.Civ.App.-San Antonio 1941, no writ).

The trial court awarded attorney’s fees in the sum of $3,000.00, to the attorney for Mrs. Osborne, rather than to Mrs. Osborne as requested in her pleadings. She has filed no cross-point complaining of this matter. Both Fillion and LSC complain of this action of the court asserting that the judgment for attorney’s fees is not authorized by § 245 of the Probate Code and that such an award is not supported by evidence offered at the hearing.

Section 245 provides that when the personal representative of an estate or person neglects the performance of any duty required of him, and any costs are incurred thereby, or if he is removed for cause, he and the sureties on his bond shall be liable for costs of removal and other additional costs that are incurred that are not authorized expenditures, as defined by this Code.

When this section is considered in context with the preceding sections dealing with the expenses incurred by the personal representatives of estates in the preservation, safekeeping and management of the estate, it appears that the purpose of the section is to insure that the estate will not be charged with fees or any costs which are incurred by reason of fault of the personal representative, and that these fees and costs as well as the reasonable expense incurred in obtaining the removal of the personal representative should be borne by the personal representative and his surety. It is necessary that evidence be presented to enable the court to determine what costs were incurred by reason of the neglect of the personal representative and in obtaining the order of removal. In Re Rosenfield’s Estate, 371 S.W.2d 95 (Tex.Civ.App.-Dallas 1962, no writ).

In the appellants’ briefs filed by Tom Fillion and LSC, the parties state that the hearing before the probate judge was recessed before the movant formally rested her case and that neither Fillion nor LSC was ever permitted or given the opportunity to introduce evidence of any kind. The parties further state that there was no additional hearing prior to the entry of judgment by the probate judge. Fillion’s brief states that an objection to this procedure was brought to the attention of the trial court on the date that the judgment was signed. Appellee has filed a brief in which she agrees to the statement of the nature of the case as presented by both appellants.

Rule 419, T.R.C.P. authorizes- this court to accept as true statements of fact made by an appellant in his original brief unless challenged by the opposing party. In Whatley v. Whatley, 493 S.W.2d 299 (Tex.Civ.App.-Dallas 1973, no writ), Chief Justice Guittard states that one purpose of Rule 419 is to avoid casting on the appellate court the appellee’s burden of searching the record to determine whether appellant’s statement of the evidence is correct, but pointed out that the rule has also been applied to authorize the court to accept unchallenged statements in the appellant’s brief with respect to matters not included in the record. This interpretation of the rule is supported by the cases cited in Judge Guittard’s opinion, including two cases by this court.

We accept as true the statements as to the manner in which the trial was conducted as previously recited. The failure of the trial judge to afford the appellants an opportunity to cross-examine witnesses and to present such evidence as might be pertinent and available was error rendering the trial materially unfair. The action of the trial court in entering judgment under these circumstances is such a denial of the substantive rights of the appellants as to require reversal of the trial court’s judgment. Texas Employers Ins. Ass’n. v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958); State v. Biggers, 360 S.W.2d 516 (Tex.1962); Safway Scaffold Co. v. Safway Steel Products, 570 S.W.2d 225 (Tex.Civ. App.-Houston [1st Dist.] 1978, writ ref. n. r. e.). .

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

PEDEN and DOYLE, JJ., also sitting.


author: PEDEN, Justice.

text:
    The CITY of HOUSTON et al., Appellants, v. Evelyn DESHOTEL et al., Appellees.
    No. 17421.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 12, 1979.

      Robert M. Collie, Jr., City Atty., Dale M. Tingleaf, Asst. City Atty., Houston, for appellants.
    Doug Cherry, Beaumont, for appellees.
   PEDEN, Justice.

The City of Houston (Houston) and R. W. Robinson appeal from a judgment based on jury findings in a suit for personal injuries filed by Evelyn Deshotel, Jewel Schwabe, and Lorene Graham. The appellants contend that the plaintiffs failed to comply with the mandatory notice provision of Houston’s city charter, that the trial court’s amended judgment is void and that there is no evidence to support the court’s awarding a recovery against defendant Robinson in the amended judgment. By cross-points, plaintiffs assert that the defendants’ failure to raise the issue of notice in the trial court and Houston’s admission of liability and its agreement to submit only the question of damages constitute waiver, estoppel or abandonment of its objection to plaintiffs’ notice. The plaintiffs-appellees also contend that the amended judgment is valid because R. W. Robinson is not subject to Houston’s notice requirements and that if the amended judgment is not valid, the original judgment is not a final one and therefore not subject to review.

In November of 1975, the plaintiffs were injured when their car was struck by a Houston sanitation truck. Their attorney timely sent notice to Houston apprising it of the accident and estimating the amount of damages involved, but the notice was not verified. The claim was considered and denied by the Houston City Council.

The following stipulations were filed in the trial court:

Come now plaintiffs, ... by their attorney of record, . ., and comes defendant, CITY OF HOUSTON, by and through its Assistant City Attorney, . . . and jointly make and file this, their Stipulations . .:
I.
The driver of the City of Houston’s vehicle on the occasion in question was a City of Houston employee acting within the course and scope of his employment for the City of Houston.
II.
Said City of Houston employee was one hundred percent (100%) negligent and plaintiffs were not negligent on the occasion in question.
III.
Said City of Houston employee’s negligence was the sole proximate cause of the accident giving rise to this lawsuit.
IV.
No evidence concerning the facts of the accident need be or will be offered by the parties or received by the Court except that “plaintiffs’ vehicle was struck from behind by a City vehicle on November 18, 1975” and also excepting that evidence may be offered to show the force of the collision as it relates to the damages sustained, if any.
V.
The only questions of fact for the jury to consider relate to the damage issues.
VI.
The parties stipulate and agree that the Court may instruct the jury that the factual issues for them will be the extent and duration of the personal injury, if any, suffered by the occupants of the plaintiff’s vehicle; that the facts of the accident have been stipulated between the parties and the jury will not be called upon to decide any dispute as to how the accident happened except that the impact may relate to the personal injuries that may have been suffered.
VII.
The parties stipulate that the City of Houston was engaged in a proprietary function on the occasion made the basis of this lawsuit.
Wherefore . . . plaintiffs and defendant pray the Court approve their Stipulations . . . (emphasis added).

The stipulations were signed by the “Attorneys for Defendants” and the attorney for the plaintiffs. It is noted that defendant Robinson did not join in the stipulations.

At the trial on the merits, evidence was offered only on the issue of damages. The jury awarded Deshotel $22,010, Schwabe $5000, and Graham $5006. Judgment was entered on December 19, 1978 against Houston only, and an “amended judgment” was entered thirty-five days later.

Appellants assert in their first point of error that the trial court erred in rendering judgment for the plaintiffs because they failed to comply with the mandatory notice provision of Article IX, Section 11, of Houston’s charter in that their notice of injuries was not verified. We sustain this point.

Article IX, Section 11, of Houston’s charter provides in part:

Before the City of Houston shall be liable for damages for personal injuries of any kind, or for injuries to or destruction of property of any kind, the person injured, or the owner of the property injured or destroyed, or someone in his behalf, shall give the Mayor and City Council notice in writing of such injury or destruction duly verified, within 90 days after the same has been sustained . (emphasis added)

It is well settled in Texas that a charter provision requiring written notice within a time certain is mandatory and such filing is a condition precedent before a suit can be maintained against the city for injury. City of Houston v. Twin City Fire Insurance Co, 578 S.W.2d 806 (Tex.Civ.App. 1979, writ ref. n. r. e.); City of Houston v. Hruska, 155 Tex. 139, 283 S.W.2d 739 (1955); Dias v. City of San Antonio, 488 S.W.2d 522 (Tex.Civ.App. 1972, writ ref. n. r. e.).

Citing Carrales v. City of Kingsville, 393 S.W.2d 952, (Tex.Civ.App. 1965, no writ), Justice Quentin Keith noted in Bowling v. City of Port Arthur, 522 S.W.2d 270 (Tex. Civ.App. 1975, no writ), under similar facts:

Where verification is required by the City Ordinance, as here, the notice must be verified to be effective, and such requirement is held to be a matter of substance and not of mere form.

The exceptions to this rule most often encountered are waiver, estoppel, and actual notice, none of which was raised in our case. The actual notice exception may arise by virtue of Section 16 of the Texas Tort Claims Act, Article 6252-19, V.T.C.S. It expressly ratifies and approves “charter and ordinance provisions of cities requiring notice within a charter period permitted by law” . . . “except where there is such actual notice,” so actual notice to the city will suffice in suits brought under the Act. Section 18(a) of Art. 6252-19 provides that the Act “shall not apply to any proprietary function of a municipality.” We have noted that the parties stipulated that “the City of Houston was engaged in a proprietary function on the occasion made the basis of this lawsuit.” This stipulation amounts to a conclusion of law to be drawn from facts of the case. Parties cannot validly stipulate as to the legal conclusion to be drawn from the facts of the case. Broward v. Sledge (1909) 58 Fla. 414, 50 So. 831, cited at 92 A.L.R. 670. “Virtually all jurisdictions recognize that stipulations as to the law are invalid and ineffective. The same rule applies to legal conclusions arising from stipulated facts.” 73 Am.Jur.2d 539, Stipulations § 35. Stipulations as to matters of law are without effect and bind neither the parties nor the court. American Bankers Insurance Co. v. Black, 466 S.W.2d 616 (Tex.Civ.App. 1971) rev’d on other grds. 478 S.W.2d 434 (Tex. 1972); 53 Tex.Jur.2d 315. The disposal of garbage by a municipality is a governmental function, Bean v. City of Monahans, 403 S.W.2d 155 (Tex.Civ.App. 1966, writ ref. n. r. e.); 40 Tex.Jur.2d Rev. Part 1 p. 432 § 671, so suits based on accidents resulting from negligence attributable to the municipality in the performance of that function must be brought under the Tort Claims Act. After stipulating that Houston was engaged in a proprietary function, the plaintiffs have not asked that the stipulation be modified or withdrawn and did not offer evidence from which it could be determined that the accident resulted from the performance of a governmental function. It has not been shown that the plaintiffs have a cause of action under the Tort Claims Act and are thus entitled to avail themselves of the actual notice exception afforded by the Act.

Houston maintains in its second point of error that the trial court was without jurisdiction to amend its original judgment because more than thirty days elapsed before the amended one was signed. The first judgment stated:

The above entitled and numbered cause came on regularly for trial on November 13, 1978. The Plaintiffs EVELYN DESHOTEL, JEWEL SCHWABE, AND, LORENE GRAHAM and the Defendant (sic) the CITY OF HOUSTON, AND R. W. ROBINSON, appeared in person and by and through their attorneys. Stipulations were filed as agreed to and the facts as to liability were found as and against the Defendant the CITY OF HOUSTON by the Court .

No further mention was made of the second defendant, R. W. Robinson, and judgment was awarded against Houston only. An amended judgment, signed thirty-five days later, was identical to the first except that Robinson’s name was added to the sentence “[stipulations were filed as agreed to and the facts as to liability were found as and against the Defendants the CITY OF HOUSTON and R. W. ROBINSON by the Court . . ., ” and a recovery was awarded against both Houston and Robinson.

Rule 316, T.R.C.P., states:

Mistakes in the record of any judgment or decree may be amended by the judge in open court according to the truth or justice of the case after notice of the application therefor has been given to the parties interested in such judgment or decree, and thereafter the execution shall conform to the judgment as amended.
The opposite party shall have reasonable notice of an application to enter a judgment nunc pro tunc.

Rule 317, T.R.C.P., provides:

Where in the record of any judgment or decree of a court, there shall be any omission or mistake, miscalculation or misrecital of a sum or sums of money, or of any name or names, if there is among the records of the cause any verdict or instrument of writing whereby such judgment or decree may be safely amended, it shall be corrected by the court . . The opposite party shall have reasonable notice of the application for such amendment.

A judgment nunc pro tunc to correct a clerical error may be rendered after the original judgment has become final. Reasonable notice of the motion to amend must be given to the interested parties. Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148 (1952).

“If the motion is based on the ground that a clerical error was made in the entry of the judgment, the party seeking to correct the entry has the burden to show that it does not speak the truth. In the absence of proof that the trial judge orally rendered judgment to the contrary, the written and entered judgment should be taken to be the rendered judgment. It should not be assumed that the rendered and entered judgment are separate and apart, for customarily they are one and the .same.” Reavley and Orr, Trial Court’s Power to Amend Its Judgments, 25 Baylor Law Review 191, 199 (1973).

In our case the record is silent as to whether reasonable notice of the motion was given the interested parties and as to whether the trial judge had ever orally rendered judgment against Robinson.

We disagree with the appellees’ position, asserted in their third cross-point, that the first judgment was not a final one. The general rule is: “When a judgment not intrinsically interlocutory in character is rendered and entered in a case regularly set for conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.” North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex. 1966). We sustain the appellants’ second point.

In their last point, appellants contend that the trial court erred in naming Robinson in its amended judgment because there is no evidence that Robinson was in any way negligent toward plaintiffs or that he breached any duty owed to them. Having held that the claims against Robinson were dismissed by implication in the first judgment, we need not address this point or the appellees’ first cross-point of error stating that Robinson cannot invoke the protection afforded Houston by the notice requirements of its charter.

Plaintiffs’ cross-point 2 maintains that Houston’s failure to raise the question of notice at trial, its admission of liability and its submission of only damage issues constitute waiver, estoppel or abandonment of its objection to notice. Houston specifically pointed out in its first amended answer that “this defendant has never received a verified notice of claim from any plaintiff herein or from anyone on their behalf.” Further, the plaintiffs’ notices, lacking verification, were offered for consideration by the judge in the trial court. We find no merit in this cross-point.

The stipulation entered by Houston (but not by Robinson) indicates that the rather serious injuries suffered by one or more of the plaintiffs were solely caused by the negligence of Houston’s employee in the course and scope of his employment.

We consider that as to the City of Houston the evidence in this case was not fully developed and that it should be remanded in the interest of justice for another trial. Rule 434, T.R.C.P.

As to the defendant R. W. Robinson, we affirm the original judgment of the trial court that provided, by implication, that the plaintiffs take nothing. As to the City of Houston, we reverse the judgment and remand this cause for another trial.

COLEMAN, C. J., and DOYLE, J., also participating.


author: WARD, Justice.

text:
    Joseph S. COLANDINO, Appellant, v. EL PASO NATIONAL BANK, INC., Appellee.
    No. 6793.
    Court of Civil Appeals of Texas, El Paso.
    July 18, 1979.
    Rehearing Aug. 15, 1979.

      Chagra & Chagra, Joseph S. Chagra, Jay L. Nye, El Paso, for appellant.
    Peticolas, Luscombe, Stephens & Windle, Wayne Windle Jr., Michael C. Boyle, El Paso, for appellee.
   OPINION

WARD, Justice.

This is an action for personal injuries arising from an accident which happened when the Plaintiff/invitee attempted to leave a bank building and a glass door fell from its pivot. Trial was to a jury which failed to find that the bank either knew or should have known of the defective condition of the door or that the bank was negligent. Based upon the verdict, the trial Court entered a take nothing judgment against the Plaintiff. The Plaintiff appeals, and we affirm.

Joseph S. Colandino, while leaving the El Paso National Bank building, pulled a handle of 3 X 7' 300 pound glass door. The door came out of its top pivot, fell, and the glass shattered. Mr. Colandino was caused to fall as a result pf the incident, and filed suit against the Bank alleging that it was the owner of a building, that he was a business invitee, that the Bank knew or should have known that the door was in a dangerous or defective condition, and that the Bank was negligent in several particulars, all of which proximately caused the accident. The Bank answered by general denial, and filed a third party complaint against PPG Industries for indemnity alleging that PPG Industries had, at the request of the Bank, installed the door in question a short time before the accident. Colandino at no time joined PPG Industries as a defendant, and the Bank’s third party action against PPG Industries was dismissed by the Bank before this trial. By its answers to special issue No. 2, the jury determined that the glass door in question involved an unreasonable risk of harm to people entering or leaving the Bank. Special issue No. 3 made the inquiry if the Bank, its agents or employees knew of such condition or in the exercise of reasonable care should have discovered such condition, and to the question the jury answered “No.” Since the issue inquiring of the Bank’s negligence and the proximate cause were conditionally submitted on a “Yes” answer to special issue No. 3, those issues were not answered.

The Appellant’s first point complains of the action of the trial Court in refusing to allow him to file a trial amendment alleging the doctrine of res ipsa loqui-tur and in refusing to instruct the jury under that doctrine. The request for the trial amendment was made after both parties had rested. In his trial petition, the Appellant alleged that the Bank was negligent in some eighteen particulars and issue was joined thereon. It was the Bank’s position that it was not negligent in any manner, that it had ordered the work on the door to be done by PPG Industries, that the work was done correctly but that if any negligence was present it was that of PPG Industries. The matter of granting leave to file a trial amendment is addressed to the sound discretion of the trial court, and the court’s order thereon will not be set aside in the absence of a clear showing that the court abused its discretion. Tuck v. Tuck, 509 S.W.2d 656 (Tex.Civ.App. — Austin 1974, writ ref’d n. r. e.). The case had been on file for over three and one-half years and the Appellant showed no diligence or excuse for his failure to have his pleadings in order. Also, adding the res ipsa ground changed the manner by which the Bank was defending the case. See Burroughs Corporation v. Farmers Dairies, 538 S.W.2d 809 (Tex.Civ.App. — El Paso 1976, writ ref’d n. r. e.). We fail to see where the trial Court abused its discretion.

The Appellant requested an instruction on res ipsa loquitur in the manner suggested by the Supreme Court in Mobil Chemical Company v. Bell, 517 S.W.2d 245, 256 (Tex. 1974). Since we have held that there was no abuse of discretion shown as to the trial amendment, the instruction became immaterial. Appellant’s first point is overruled.

The second point is that the trial Court erred in failing to instruct the jury on the non-delegable duty doctrine as applied to the Appellee Bank. That is, that the employer/Bank was liable for the negligence of the independent contractor, PPG Industries, regardless of whether or not the Bank had done everything that could reasonably be required of it. Here, the parties agree that PPG Industries was an independent contractor in undertaking the repair and maintenance of the door. Yet, we will overrule the point for two reasons. In the first place, the Appellant dictated to the court reporter a suggested instruction to the effect that the Bank would be liable for all actions taken by PPG Industries in repairing the door. Yet, the case as submitted to the jury was on the theory that the defect in the door was a hidden one which the Bank would either have to know about or have constructive knowledge about and would then have to guard its customers from any unreasonable risk of harm. The case was not submitted to the jury on any theory that the Bank or its independent contractor was negligent in repairing the door, and the instruction as to the non-dele-gable duty of the independent contractor was in regard to defective repairs rather than on the submitted theory. The instruction as dictated was thus immaterial to the theory as submitted. See Restatement (2d) of Torts sec. 422 A (1965).

In the second place, Rule 279, Tex.R. Civ.P., still provides that the failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment. This was not done. While Rule 272, Tex.R. Civ.P., now provides that objections to the charge may be dictated to the court reporter, that Rule does not change the requirement of Rule 279. Those instructions, particularly where they are relied on by the party making the request, must be submitted to the trial court in writing. See Adam v. Harris, 564 S.W.2d 152 (Tex.Civ. App. — Houston [14th Dist.] 1978, writ ref’d n. r. e); First State Bank & Trust Company of Edinburg v. George, 519 S.W.2d 198 (Tex.Civ.App. — Corpus Christi 1974, ref’d n. r. e.). The second point is overruled.

The Appellant next presents no evidence and insufficient evidence points regarding the jury’s answers to the damage issues. The jury awarded damages for physical pain and suffering in the past in the amount of $2,000.00 and set their finding as to the future pain and suffering at “none.” Without detailing the evidence, we will state that it was sharply conflicting. We further state that after reviewing the evidence, we overrule both points.

The final complaint presented is that the trial Court failed to submit the case on the correct theory of defective repairs. While that contention may have some merit, we fail to find where issues presenting that theory were submitted to the trial Court in writing. We have nothing to review. Rule 279, Tex.R.Civ.P. The point is overruled.

The judgment of the trial Court is affirmed.