*1 (Tex.1981); Anderson, 685, 689 Glass v. (Tex.1980); Corso v. Carr, (Tex.App. —Fort n.r.e.). Accordingly, writ ref
Worth d
appellees’ failure to un- payments continue agreement” “services excusa-
der the was cannot be
ble and considered as termi- breach of
nation or the lease with Bandera
County. County’s pro- Bandera refusal subsequent agreement
vide a service
nothing County’s capac- to do with Bandera
ity agreement lessor under the lease County appellees. Bandera did not capacity
act in its as lessor the “ser- agreement,” merely
vices as a con- acted appellees.
tractor services with There-
fore, County’s hold that Bandera refus- subsequent agree-
al to enter into “services appellees
ments” with is not a termination Appellants’
of their lease. points of error
five, six, eight and nine are overruled.
Appellants’ point of seven is
directed trial “E” court’s conclusions “F” which concern of termi the lack
nation of the lease between Coun Bandera
ty appellees tenancy if the lease is a
will. conclude We that under terms of it is tenancy lease not a as it at will
not terminable either party at will. Ac appellants’
cordingly, point of num
ber seven is overruled. of the trial court is af-
firmed.
SWEST, INC., Appellant, AIRLINES, INC., Appellee.
AMERICAN
No. 05-83-00279-CV. Texas, Appeals
Court
Dallas.
May 1985.
Rehearing Denied June *2 and Thomas W. McKen-
Arch M. Skelton Dallas, Skelton, zie, Besing, Murphy & appellant. Good, Brin, Jr., H. David
Royal H. Kevin Airlines, Inc., Schwarte, Dal- A. las, appellee. STEPHENS, AL- VANCE and
Before LEN, JJ.
ALLEN, Justice. Swest, Inc., appeals from
Appellant, in favor of against it and judgment entered (Ameri- Airlines, Inc. appellee, American can), brought Swest in a suit based on of contract American for breach to collect C.O.D. failure jewelry shipments. Swest charges on two appeal. error on points of raises fourteen basically contend through eight one Points entering judg- erred that the trial court proved Swest for American because ment for both by American contract breach law. a matter of shipments as complain of the of error points rulings, and the evidentiary charge, certain attorney’s Although trial fees to court’s award fourteen raises error, points points conclude American. American asserts three cross- dispositive three seven are concerning points the trial refusal court’s complains case. ratification, special to submit a issue on the trial court erred overrul insufficiency alleged impropriety its motion for notwithstand damages, proof and the trial *3 ing findings the verdict because jury’s striking court’s action in coun- against of no of contract breach were declaratory judgment. terclaim for a We great weight preponderance and of the evi agree points with of three Swest’s error Although points dence. these of error use essence, seven, contend, and which that insufficiency” language, “factual the lan American breached contract as a matter guage used to characterize of a Consequently, of law. ren- reverse and controlling. Instead, procedural is not judgment der in favor of and Swest steps points which the to relate are deter in part .remand for a attor- determination of McKinney minative. Air Venture v. fees, neys’ any, due if Swest. 849, Corp., (Tex.Civ.App.— S.W.2d 578 862 1979, n.r.e.). supply jewelry a house based in Fort Worth writ ref’d Dallas, since of three and Swest’s gold sent a number of silver and complaint seven of the trial refusal court’s shipments appellee to C.O.D. New York on grant to judgment notwithstanding a Swest American, carrier, person a common to a verdict, legal we construe them to be identifying himself Scott Barter. There insufficiency points. Murray Corp. problems were no of ship- with the first two Brooks, 897, Maryland v. 600 S.W.2d 903 ments, were relatively which small 1980, (Tex.Civ.App. Tyler writ ref’d n.r. — amounts, delivery accomplished with and e.); Co., Flesher Construction Inc. v. Hau payment by made cashier’s certi- check and erwas, 202, (Tex.Civ. 491 S.W.2d 205-07 personal fied check. ship- The last two 1973, App. writ); also, no see Mc —Dallas ments, C.O.D., also priced sent were on the New York Donald v. Central Mutual Fire $48,220 $38,160, airbill at and respectively. 545, Co., (Tex. 380 Insurance S.W.2d 548 accepted payment American by ap- what 1964). We therefore them to be construe peared checks, personal to be certified asserting jury findings of no actually the bank were certifications breach contract are as a mat of erroneous forged. $48,220 American turned over the words, ter In of law. shipment 11, to Barter on November 1980 points error contends it established $38,160 and turned over the shipment to breach of contract as a matter law. 12, Barter on November In both reviewing points, “matter of law” we must instances, American turned the merchan- all the evidence in the record. consider dise over to Barter around midnight, when Systems Cory., v. Electronic Data Bobbitt closed, the banks were no at- 620, made (Tex.App. 652 622 S.W.2d —Dallas tempt verify forged writ); to 1983, checks. Precipitair certified no Pollution Con 909, Green, (Tex. dishonored, The 911 subsequently checks were trol v. n.r.e.). App. Tyler writ resulting ref’d suit American — merchandise, for the value of in which undisputed It alleged contract, fraud, breach of attempt purported verify made no negligence, duty good breach of faith question. The issue to certified checks dealing, duty fair and breach of resolved, then, be is whether American was comply with reasonable stan- commercial purported make required to sure that the jury, dards. The cause was tried before genuine and not for certified checks were which found that American breach did not impres first geries. question is a its C.O.D. contracts with trial authority Swest. The only we have sion in Texas. court accordingly entered any jurisdiction which rules found from question American. whether a directly on the verify hold duty to a certi- verdict. We the evidence carrier has a C.O.D. Lavine, Mogul v. matter check is N.Y. establishes as a of law that Ameri- fied (1928) (Cardozo, C.J.). N.E. verify can breached its contractual ease, perhaps Mogul leading lead- the checks. case, duties liabilities not, holding does as the dissent Our quoted carriers. A Texas court has C.O.D. maintains, strict on C.O.D. approval Mogul’s analysis basic collect, even when carriers for failure liabilities. Herrin Trans- duties those is the the carrier’s failure result of Co., portation Co. Robert E. Olson acceptance forged of a check. If certified An- 827-28 —San carrier, in the a C.O.D. exercise of reason Mogul writ). no holds that tonio skill, able care and fulfills its accept carrier (when purported certified check under its contract has a check allows certi C.O.D. contract verify any purported certified check ten- *4 check), fied it is not for loss. liable The shipment. payment as for a C.O.D. dered case American evidence in this shows that Judge As stat- We concur. Chief Cardozo fulfill made no effort whatsoever to its Mogul, a al- ed in contract which C.O.D. Therefore, law, duty. aas matter of payment by certified check allows lows a duty contractual to collect the breached its check, accept the carrier to a certified “and amounts due. pretense mere of one.” 159 N.E. at not a 709. that The Video argues The dissent Inc.,
Moreover, holding that a C.O.D. Frey’s Express, Motor Station v. 188 duty verify not to a carrier does have impos N.J.Super. 457 1220 A.2d would purported certified check undermine carriers. The es a on lesser C.O.D. ship policy purpose C.O.D. Video does defend Station hold “[a] The “assure policy ments. is to accepting ant which is in the business of delivery cannot an absolute carrier make shipments delivery should rea C.O.D. thereby leaving the collecting, without agents required to sonably be educate consign against to his recourse identifying charac employees Lines, Inc. Rich ee.” National Van a certified check.” Id. 457 A.2d teristics of (5th 800, 803 Corp., Plan 385 F.2d Cir. take at The dissent seems to this 1220. 1967). Appeals, The Ninth Court of Circuit only that a carrier holding to mean Cermetek, Inc., Avpak, Butler Inc. v. inspect check has a certified to (9th Cir.1978), 573 F.2d 1379 stated However, The if on its see it is void face. purpose policy as follows: behind the question not Video Station did reach generally “The seller utilizes a C.O.D. con a carrier has of whether C.O.D. he does not trust tract because either because precisely check a certified buyer or does not intend advance credit was The Video Station void the check utilizing the C.O.D. method the ... [W]hen nothing inconsistent There is face. clearly liquid he wants as seller indicates holding that Station’s between The Video sets, not a contract claim a distant purported inspect must a C.O.D. carrier insolvent, may litigious, buyer dis who be and our for facial defects certified check honest, If or all three.” we were to hold go must on to holding carrier that C.O.D. verify pur that a C.O.D. carrier need checks purported certified verify those checks, signifi ported certified we would inspection. pass which ship cantly confidence of undermine the of error points decision Our they receive cash or its pers that reversal, seven, compels a three and their equivalent unnecessary to discuss Hence, makes it do. shipments. we decline to turn to now remaining complaints. We sustain Swest’s of error assert first cross-points. American’s refusing the trial erred in court court erred cross-point the trial notwithstanding is that grant Swest
403
law),
refusing
special
parently applying
Mogul;
issue on rat-
Texas
159
to submit
jury. We find no error in
ification to the
N.E. at 709. Swest offered uncontroverted
court’s refusal to submit such a
the trial
of the sum to be collected on
evidence
issue,
special
there was no evidence
since
delivery
goods.
The carrier
accept-
had ratified American’s
however,
that Swest
mitigate
if
damages,
there is suf-
unverified,
purported,
ance of
that the debt was uncollec-
ficient evidence
pur-
checks. When American delivered the
Co.,
Transportation
tible. Herrin
did
ported certified checks to
828;
Lines,
S.W.2d at
National
Van
accept
deposit
them. This action
803;
N.E. at
Mogul,
F.2d at
willing-
would count as evidence of Swest’s
circumstance, though,
such a
the carrier
verified,
accept
ness
valid certified
escape liability
damages.
cannot
for all
checks in lieu of cash or cashier’s checks.
damage
award
such a case must
However, there is no evidence that Swest
consignor.
reflect the actual
loss to the
knowledge
accepted
that American had
goods wrong-
That loss is the value of the
unverified,
purported, but
certified checks.
fully
Mogul,
surrendered.
N.E. at 710.
there is no evidence that Swest had
Since
argues
American
that it is entitled
knowledge of all the material facts sur-
damages,
damages
mitigation
acceptance
rounding American’s
consequently
according
should
be assessed
checks,
bogus
not entitled to
goods
to the actual
at the time
value
of rat-
issue on
defensive issue
delivery,
prove
that Swest did not
ification. Hernandez v. Southern Pacific
goods
delivery,
actual value of the
Co.,
Transportation
*5
Swest, therefore,
prove
that
did not
dam
1982,
writ)
(Tex.App. Corpus Christi
no
—
However,
(no
ages.
it is established law in
error
trial court’s refusal to submit
the burden of
special
raising
if there is
Texas that the defendant has
issue
no evidence
it);
138,
relating mitigation
Gray,
proof
v.
558 S.W.2d
139
on all matters
Jackson
1977,
n.r.e.)
(Tex.Civ.App. Tyler
Manly Boys
writ ref’d
damages. Stanley
Clothes
—
(ratification requires knowledge by princi-
482, 487-88,
Tex.
259 S.W.
Hickey,
v.
113
pal
facts);
pertinent
of all
(1924);
Beard,
see also Land
160,
430
163
Hardison v.
Dallas,
Stigler,
Title Co.
Inc. v. F.M.
1968,
53,
S.W.2d
57
—Dallas
Inc.,
754,
(Tex.1980) (rat-
609 S.W.2d
756
Herrin,
n.r.e.);
also,
325
writ ref’d
see
principal acquires
ification
occur after
Lines,
828;
385
S.W.2d at
National Van
knowledge).
full
American therefore had
F.2d at 803-04.
predicate
only
prove
the burden
cross-point
American’s second
is
uncollectibility,
the debt's
mitigation,
that the evidence
prove
offered
Swest to
prove that the actual value of
also to
alleged damages
was insufficient and
delivery
less than the
goods
on
improper
damages.
under the Texas law of
American has not
sum to be collected.
actually
cross-point,
This is not
since it
any part
of the record
cited this court
complain any ruling
does not
or action of
indicate that the actual value
which would
420;
the trial court. TEX.R.CIY.P.
Jack
delivery was less than the
goods
at
Ewton,
715,
(Tex.
411
son v.
717
Indeed, it contends
sum to be collected.
1967).
argument
up
It is instead an
the actual
no evidence of
that there was
holding
despite
trial
judgment
court’s
goods. Since American
value of the
any
jury’s findings
liability.
plea
its defensive
complete
burden on
judgment
court’s
Since the trial
would be
produced no evidence on
mitigation
prove damages,
correct if Swest did not
plea,
of that
we must
element
an essential
argument.
shall consider this
The sum to
prima
proof of
that Swest’s
conclude
shipment
pri-
on the
be collected
facie
Swest has
damages stands unrebutted.
damage
shipper’s
evidence of the
ma facie
law that
proved as a matter of
thus
when the carrier fails to collect. Herrin
sum to be col
Co.,
827; damages
Transportation
amounted
325 S.W.2d
Lines,
delivery
goods.
Lesi-
(ap-
of the
See
National Van
“An
to collect a debt
genuineness of the in-
care, skill,
in the
diligence
ordinary
accepting
before
it because “the
strument
performance of all the duties incident
forgery
of the
chance of deceit or
was one
his
undertaking, and will be liable to
N.E. at
calling.”
risks of
negli-
which his
principal for
loss
However,
reject
imposition
I would
this
If
respect may
in
occasion.
gence
liability upon
carriers in favor
strict
C.O.D.
good
faith and
agent
has acted
stringent negligence
the less
standard of
care, skill,
diligence he
ordinary
Cardo-
Mogul
care.
was written
Justice
except in cases where
will not be liable
time in
the use of
za in
at a
collection;
guaranteed the
nor
he has
greatly from that
common carriers differed
principal
will he be liable if the
himself
present. Completion of the success
(em-
collecting”
him
prevented
has
from
depends on
of commercial transactions now
added).
phasis
imposi-
rapid
delivery
transit and
and the
C.J.S.,
Station,
(citing
at 1219
Video
stringent
strict
standard
tion of the
90).
304(a) at
Agency, §
an ex-
upon C.O.D. carriers would have
care,
Thus,
unless
under this standard of
tremely negative effect on such transac-
accepting
negligently in
American acted
stringent negligence stan-
A less
tions.
Barter,
check from
forged
certified
commercially
care is a much more
dard of
liable to
American cannot be held
day
present
reasonable
forgery.
Re-
resulting
the loss
from
sufficiently
carriers and will
commercial
garding the determination of whether
Thus,
shippers.
reject
I
protect
would
present
negligently
American acted
in-
authority
agree
Mogul as
and would
case,
agree
I
with the court Video Sta-
in the more
the court’s rationale
stead with
tion,
in the
“a defendant which is
recent decision Video Station.
shipments for
accepting
C.O.D.
business
majority’s
disagree with the
I further
reasonably
required
be
delivery should
stringent negli-
the less
statement
agents
employees as to the
educate its
policy
gence standard would undermine
identifying
of a certified
characteristics
shipments. While
purpose
of C.O.D.
However, in this
check.” Id. at 1220.
under-
correctly notes that the
majority
case,
nothing apparent on the
there was
assure that the
policy of
is to
lying
identify
certifica-
face of the check to
delivery
cannot make an absolute
carrier
nothing
forgery.
There was
tion as
Lines
collecting, National Van
without
place
anyone
nor
the instrument to
when the contract between
holder,
else,
subsequent
as a
on notice
such
that the carrier
expressly states
and carrier
forgery.
TEX.BUS. & COM.
See
check,
cash,
may accept
cashier’s
(Vernon 1968).
ANN.
3.304
CODE
§
check,
money order as
check or
traveler’s
Therefore, I
hold that American was
would
in this case held
payment,
as the
forged certi-
negligent
accepting
not
did,
majority
does
fact
and which
Barter.
since have
fied check from
shipment is
fact that the
dispute, the mere
agent
unless the
either
already stated that
carrier to act
require the
does not
guaranteed
negligent
by contract
or insurer of the
guarantor
as an absolute
payment,
of which
the collection
accepts and “collects”
payment if it
evidence, I
hold that
there is no
would
under the
approved
in a form
carrying
properly in
out
American acted
clearly
carriers
contract. Common
carrier, and therefore
duties as a C.O.D.
*8
A
accept this role.
C.O.D.
unwilling to
be
with
did not breach its contract
Swest
shipper to act
the
merely requires
contract
forged check.
accepting the
and
negligence
reasonably' and without
“cash on
delivery,” not obtain
along with
relies on
on
majority,
The
“collect
ship-
If the
American did.
Lavine,
delivery.”
247 N.Y.
159 N.E.
Mogul v.
it receive cash
that
to insure
(1928)
per
even if the
wishes
proposition
the
shipper
the
between
the contract
accept
payment,
the carrier to
contract allowed
whole,
provide
jury
and carrier can so
cash is the
the
directed
to irrelevant issues
only acceptable
and
payment
negligence, thereby confusing,
means of
of
mislead-
thereafter,
negligence
ing,
misdirecting
under the
standard
jury,
and
the
result
the
care,
if
accepts
being
of
the carrier
other
error. Specifically,
reversible
payment,
complains
special
dealing
of
the carrier
not have
the
means
will
issues
and, thus,
reasonably
prudently
negligence
failing
investigate
acted
and
with
to
majority,
held
may
background
be
accountable. The
the
of
were
financial
Barter
however,
un- unnecessary,
jury,
probably
states that in order
avoid
misled the
to
dermining
shipper’s
improper
confidence
com-
in the rendition of an
resulted
contracts,
acting
disagree.
mon carriers
under C.O.D.
verdict. I
shipper
absolutely
the
must be
liable for
error in
of an
Generally,
the submission
collecting payment
equiv-
in cash or
cash
findings
jury
issue is harmless when the
on
This is an
to
alent.
standard
unreasonable
support
are sufficient
issues
to
impose modern-day
negli-
The
shippers.
judgment.
Houston,
Boatland
Inc. v.
gence
of care
undermine
standard
will not
(Tex.1980).
Bailey, 609 S.W.2d
contracts,
policy underlying
C.O.D.
exists,
An exception
general
to this
rule
require
reason-
will instead
carriers to act
however,
erroneously
when
submitted
ably
with
within
terms of its contracts
or
jury.
issues confuse mislead the
Id. at
collecting
from
shippers
payment
consignees.
jury’s negative
special
answer to the
Finally,
majority
requir-
asserts that
issue
whether
as to
American had breached
ing a carrier who
enters into
contracts was
to sus-
sufficient
verify
purported
contract
all
Although
tain the
in its favor.
genuine
as
impose
checks
does
strict
dealing
negligence
the issues
with Swest’s
upon
majority
the carrier. The
may
erroneously
have been
submitted
insists, rather,
duty
that the
has a
the method
submission
been
have
verify
all certified checks in order to
confusing
jury,
showing
there is no
carry
out
duties under
con-
the C.O.D.
into
they
were confused or misled
tract in
reasonable
prudent
manner
answering
concerning
the issues
Ameri-
under the circumstances.
this hold-
negli-
of contract
can’s
breach
require all
carriers
common
issues,
gence
especially as the breach
purported
given
all
certified checks
were
Ac-
contract issues
submitted first.
believe,
any shipment.
I
I would hold that the
cordingly,
submission
stated,
previously
I have
that this
erroneous,
issues, if
negligence
of carriers,
upon
too harsh
common
and, accordingly, overrule
harmless error
regardless
of whether
of care
through
nine
points of error
twelve.
shippers
owing
negligence
labeled
thirteen,
In
Swest contends
point of
liability, although
strict
I believe the
on a
rulings
court’s erroneous
that the trial
imposed by majority
of care
more close-
evidentiary matters amounted to
number
Accordingly,
ly resembles the latter.
I dis-
first
disagree.
error.
reversible
agree
majority
overrule
with
and would
allowing
the trial court erred in
argues that
points
through eight.
Swest’s
error one
evidence, over
to introduce into
Although majority
unnecessary
felt it
testimony of
objection,
Swest’s
Swest’s
error,
the remaining points
to discuss
identify
investigate the back-
failure to
upon my disagreement
based
the ma-
customer,
ground
financial status of its
jority’s holding
points
error one
Swest, however,
place
cites no
Barter.
through eight, I will
also address
objections were
where these
the record
remaining points of
as Ameri-
error as well
therefore,
made;
appellate
it has waived
cross-points.
can’s
Kropp v.
these contentions.
review of
twelve,
Prather,
through
of error
nine
n.r.e.);
May v.
ref’d
charge,
—Tyler
as a
writ
Swest contends that the
*9
Underwriters,
as payment
ship
170 S.W.2d cashier’s check
in C.O.D.
Consolidated
ments. The
refused
Worth
court
to admit the
—Fort
w.o.m.);
tape
employee
because an
ref’d
TEX.R.CIV.P.
of Swest’s who
writ
deposition
gave his
on behalf of Swest
Second,
it
claims that
Swest
was
deposition
failed to amend his
which stated
permit
court to
American to
for the trial
any
that Swest
not recorded
conversa
evidence,
objection, Tar-
introduce into
over
tions with American. Swest contends that
66, 30,
argues
iff Rules
and 34. Swest
recording
actually
by
since the
was
made
fair
it did not have
notice that American
secretary
the
and
Swest’s counsel
not
exculpate
going to limit
was
Trostel,
Mr.
who
on
of
spoke
behalf
Swest
indemnity
exculpatory
the
and
because
the deposition,
negative
then his
answer
by
agreements
supplied
on the airbill
question,
you
any
to the
“Have
recorded
conspicuous
not
be-
American were
and
with
conversations
American Airlines?”
inclu-
cause Swest did not consent to their
true, and
duty
was
he was under no
to
argues
in the
sion
contract.
refuse, however,
amend his answer.
to
were
be-
properly
the tariff rules
admitted
subpoe
a
draw such distinction. American
they
by
incorporated
reference
cause
were
Swest,
naed
which then selected two em
pre-
the
in Swest’s own exhibit of
airbill
behalf,
ployees
speak
to
on its
one of whom
pared by
agree
American. I
with this last
Thus, Trostel
spoke
was Trostel.
behalf
contention.
deposition.
party
in the
A
is
of Swest
by
supplied
theOn
back of the airbill
duty
supplement
response
under
his
American,
heading
“Conditions
deposition
upon
if he
obtains information
Contract,”
ship-
of
is the notation that the
re
of which he knows that the
basis
carriage subject
is
to the
accepted
ment
sponse, though
complete
and
when
correct
in ef-
governing
and tariffs
classifications
made,
longer
complete
no
true and
law and
fect and filed
accordance with
is mislead
the failure
amend
answer
inspection by
parties
are available for
Thus, Swest,
ing.
166b.
as
TEX.R.CIV.P.
incorporated
and are
into
made
lawsuit,
sup
had a
party
to the
of the contract. Tariff Rule 30 lists the
Trostel,
repre
of
plement the answers
when American will be
various situations
to whether
deposition,
in the
sentative
exculpated
liability,
from
and Tariff Rule
recordings
any tape
made
whereby
34 is an
clause
indemnification
with American because other
conversations
severally
consignee
jointly
knew of the re
representatives of Swest
to the carrier for its
liable
losses
accept
argu
cording.
I refuse to
applicable
tariff or
event
violation
Trostel
unaware of
ment
was
that because
shipper. Although
default
by any
made
recordings
any tape
specifically
listed
provisions were
Swest,
Swest was
then
representative
airbill,
clearly noted on the airbill
it was
supplement
the answers
under no
subject
C.O.D. contract
deposition
his
taken on
Trostel in
given by
by entering
applicable tariffs and that
into
Acceptance of
con
behalf of Swest.
impliedly consented to
the contract Swest
supple
render
tention would
tariffs,
Since the
there-
their inclusion.
in which cor
meaningless in cases
ment
fore,
incorporated by reference into
were
representatives was
poration
several
contract,
evi-
introduced into
which was
supplemental answers
Since no
involved.
Swest, I
no
in their
by
find
dence
imposition
given
were
by the
into evidence
court.
admission
discretion
broad
sanctions was within
point
v. Cessna
Finally,
under this
court.
Smithson
contends
of the trial
See
(Tex.
439, 442-44
Co.,
re-
error that the trial court erred
Aircraft
that the
1984).
I would hold
Accordingly,
evi-
fusing to
it
introduce into
permit
an abuse
tape
was not
recording made
the secre-
exclusion
tape
dence a
court,
thus over
by the trial
rep- discretion
of American’s
tary for Swest’s counsel
thirteen.
of error
only accepted
cash or
rule
resentations
*10
error,
In its final
attorney’s
in
contends
fees
defense of Swest’s
that American
negligent
was not entitled to attor-
lawsuit
in
because Swest was
ney’s fees under
failing
either TEX.REV.CIV.
investigate
background.
Barter’s
(Vernon Supp.1984),
STAT.ANN. art. 2226
In support of
its contention
costs also
Tariff
indemnity
or
Rule
which was the
fees,
attorney’s
include
American cites
incorporated by
clause
reference into the Mundy
Compa-
v. Knutson Construction
agree.
C.O.D. contract.
I
(1956),
ny, 156 Tex.
will not filed, it is another action or
at the time *11 parties and in
proceeding between the same adjudicated in- may be the issues declaratory in the action.” Id. at
volved counter- All the issues in American’s
895. capable being resolved under
claim were American; there- action
fore, trial court’s of the coun- dismissal proper. Accordingly,
terclaim this cross of error.
overrule points previously discussed herein appeal and thus dispositive of this
would be remaining address American’s
I will not affirm the
cross-points of error. I would and reverse and render in
part. INDEPENDENT
GREENVILLE DISTRICT, Appellant,
SCHOOL INC., EXCAVATING, Appellee.
B & J
No. 05-84-00423-CV. Texas, Appeals
Court
Dallas.
May 23, 1985.
Rehearing
July
Denied
notes
express
implied, which
the carrier
impression
that this is a case of first
option.
enter into or refuse at its
Id.
Regarding
Texas.
this issue I must dis-
Lines,
1219. National
v.
however,
Van
Inc.
Rich
pute,
majority’s
statement
(5th Cir.1967);
Corp.,
Plan