*1 acquisition Lapsleys for the with the tiated required by appropriated land as pay in State offered to 3264. The Lapsleys de- The

excess of then instituted The State

clined the offer. Special The proceedings.

condemnation $264,- Lapsleys

Commissioners awarded the below of the court

200.00. $365,927.20. The Lapsleys

awarded the initial settlement offer exceeded

State’s

award the Commissioners provides that

ment of the court. Art. 3267 shall be such circumstances costs

under

paid property. The by the owner of the

costs in the court and of this against Lapsleys.

must be taxed original opinion herein is withdrawn it; ap- foregoing

and the substituted

pellants’ re-hearing is overruled motion for court,

and the of the trial modi- cost,

fied as to is affirmed. BLACK, Appellant, COMPANY,

FRANK PAXTON LUMBER Appellee.

No. 16733. Appeals

Court Civil of Texas.

Dallas.

May 27, 1966. Rehearing Motions for June

Rehearing July 22, Denied

tion, in monthly $2,000 installments of each. expressly provides note for maturity upon accelerated pay failure to due, installment when for reasonable attorney’s fee for waiver of demand and partial It also payments made before or after shall prejudice be without to the holder.

Appellee alleges appellant defaulted payment in the due on October whereupon appellee declared the entire balance $10,000 plus due in the sum of interest; $3,000 and that appellant his answer alleges under oath that there was for note; the time at of the execution Rentals, instrument Lawrence Black Inc., appellee was princi- indebted in the pal note; amount named in the that he executed the note for the of obtain- ing more liberal terms of for the benefit corporation; received no consideration benefit himself as a re- note; sult of his execution of the that it agreement was the understanding parties signing was in his capacity as President Lawrence Rentals, Black Inc. and not in individ- ual capacity; corporation and that the was be solely Appellant on liable the note. $3,000 denied that was attor- a reasonable ney’s fee.

Summary judgment was rendered in favor of in- cludes an interest and Arnett, Lee Angelo, appellant. San Ungerman, Hill, Ungerman Angrist regular note is on Lawrence its face. Vickers, Dallas, A. L. Rentals, Black is nowhere mentioned Inc. in the signed by note. was DIXON, Chief Justice. Black alone. Appellant appealed Lawrence Black has appellee’s Attached to motion for sum- from a against him in mary judgment are two affidavits executed promissory suit on a note. 166-A, prescribed signed On August a Texas Rules of Procedure. One $12,124.92 payable appellee’s note for Medford, manager. E. L. credit corpora- Frank He Company, Paxton Lumber swore amount that the due was appeal appellant currently held and owned his third note was the reasonable issue on by appellee. point is attorney’s fees. This amount of Ficht- by Jay S. The other affidavit was well taken. Dallas, ner, practicing reputable is a Jay based S. Fichtner opinion, who that it was his swore *3 How- ney years’ practice. ten by appellee’s of more than him information furnished ever, done, to reasonable attor- his attorney as work to the hearsay. quote ney’s fee is based on We reasonable awas from his affidavit: any controverting Appellant did not file attorney “I the have been advised affidavits. performed he has the Plaintiff ap points In his first and second this law- following the in connection with pellant asserts that want of suit: case, his in this as is prior “1) Preliminary investigation

liability capacity. in his individual litigation. to agree. not Vernon’s Ann.Civ.St., provides con that value ais Original “2) Preparing filing and of pre-existing sideration and a debt is value. follow-up service of Petition and Section 29 that an accommodation citation. party negotiable instru signs one who is Preparation Request for Ad- “3) of lending his name ment for the of missions. person person; to some other and such a is a holder liable on the instrument to filing of Motion “4) Preparation and at the notwithstanding value such holder Compel Inter- Defendant to answer him to taking time of the instrument knew rogatories. party. In this an accommodation appellant’s judicially case it is admitted Motion Preparation filing and of “5) corporation was indebted pleadings that the necessary Summary Judgment appellee in the sum appellant signed in order to the note payment for obtain more liberal terms for is principal amount sued “The corporation, thereby lending the his name Buck, 370 corporation. Reed v. “ * * * Nat’l Camp Dallas (S.Ct.); S.W.2d 867 v. that based my opinion Bank, (Comm.App.); Par 36 994 information, upon the above all of Bank, sell Canadian 298 S.W. State for the services * ** (Tex.Civ.App., ref.). writ the sum would rendered ours.) (Emphasis

$3000.00/100.” Appellant claims that his answers court allowed appellee’sinterrogatories under Rule constitute Texas Rules of Procedure Fichtner’s is obvious support

evidence in his contentions he had solely on what is based asserted in his first His self- affidavit two * * by the appellee. been “advised serving binding are not answers we example, do record, for may be Nowhere in the elicited under Rule 168 Answers time, the or the answering the find only against party used attorney in spent provides. amount of work interrogatories. The rule itself so in accom- investigation, preliminary Sylestine, See also Halbert v. per- five named plishing (Tex.Civ.App., hist.). Appel the others points formances. lant’s first two are overruled. points in due are hist.). and fifth fourth accepted, to be Himes entitled overruled. Co.,

v. American Fence Home Because the record discloses a material (S.Ct.); especially since did fee, fact issue as to the amount of challenge sufficiency the affida- be reversed and the cause will Crouch, vit the trial court. Lobit v. remanded for another trial. r. ref. S.W.2d 110 n. Reversed and remanded. e.). case, the Himes On Motions for Rehearing. case, Supreme affirmed the Court Both filed have Appeals,

ment of the Court of Civil motions for rehearing. Both motions are very had reversed the trial court on the overruled, except as hereinafter indicated. *4 attorney’s issue fee. Subject ruling to our its on motion In the Lobit case we are not informed as rehearing appellee voluntary has filed a re- alleged to the nature of the insufficiencies $1,500, mittitur of the amount of suspect of the challenged ney’s fee allowed in judgment, has form, they irregularities were as to waived any attorney’s the allowance of not of substance. fee, and asks the judgment re- formed removal of the said event, that the bur we hold portion of the amount for which summary den moving party is on the court; judgment recovered in the trial judgment proceedings to show that as so reformed judgment af- is no material issue fact the court. before firmed. If he fails is not entitled so Martin, summary judgment. Gardner v. original we over al., 156, et 162 Tex. S.W.2d What ruled all of appellant’s points ordinarily is a reasonable fee is except Point No. The latter related be re fact. The issue cannot allowance of the hearsay solved resorting to evidence. $1,500, which we found to be reversible general hearsay rule is that error. The remittitur has removed is no evidence at all. See 24 Tex.Jur.2d error. is entitled judg to have the and cases there cited. The defect in the ment reformed and affirmed. Owen Devel substance, one therefore opment Calvert, Co. v. 212, 302 157 Tex.

merely Appellant’s of form. third 640; S.W.2d Hill v. New Mexico is sustained. 581, Coaches, Oklahoma Inc., 153 Tex. 91; 439, Vernon’s Texas points ap In his fourth and fifth R.C.P. pellant contends that there is a fact issue note, the date of Our reversing the judgment compound the court result awarded of the trial court and remanding this cause There interest. is no merit in these for another set aside. The judgment expressly provides The note waiver of hereby reformed so as to allow 5937, demand and recovery for the amount of its debt in ap- And Subsection V.A.C.S. $10,638.33 sum of with interest thereon at pellee’s acceptance of a after the rate of per 1,. six cent from November had due declared the whole balance did not 1965. Costs will equally be divided between maturity. waive the acceleration of Fisher Wood, Tex.Civ.App., as reformed is affirmed. Wolff, ; (writ dism.) Motor Finance v. Co. Affirmed.