OPINION
This appeal is from a judgment denying Appellants specific performance of an option to purchase real property. The trial court disregarded the jury’s finding and entered judgment non obstante veredicto for the Chilton Independent School District. We affirm the trial court’s judgment.
On September 19, 1967, Appellant W.E. Lessing entered into a five-year lease with the Chilton Independent School District to rent a former school building and its surrounding 14.92 acres of land. The lease contained an option to purchase, which read as follows: “During the term of the lease, lessee shall have the option to purchase the property for the sum of $15,000.00, less any payments made under the terms of the lease”. On July 11, 1972, the lease was renewed for an additional five-year period and included another option to purchase identical to the one quoted above, except that the purchase price was to be $10,000.00 instead of $15,000.00. Less than one month after the renewal, Lessing assigned an undivided one-half interest in the lease to Robert Rue, the principal owner of Corporate-Appellant, and authorized Rue as his agent to exercise the option.
Although the testimony of Robert Rue and Roger Collins, a former board member and former vice-president of the Chilton Independent School District, differ materially concerning what matters were discussed and where certain discussions took place, Rue testified that in late spring or early summer of 1977 he phoned Collins, that Collins came out to the site of the leased property, and on that occasion Rue told Collins that he was accepting the option. Rue also testified that he talked to Collins several times at a restaurant about his plans to buy the property. The Corporate-Appellant continued to occupy the property in question and continued to pay rent to Appellee, which Appellee accepted and deposited. In February of 1981, Appellant’s attorney, John Malone, wrote a letter to the School Board to assert that Robert Rue had exercised the option in the lease *729 prior to its expiration, made a tender of $5500.00, and demanded specific performance. The record is silent on any tender of purchase money to Appellee by Appellants prior to February, 1981. Sometime in 1981, the corporation voluntarily vacated the premises.
The case was submitted to the jury on the following instructions and special issue:
“You are instructed that for a person to accept an option that has been heretofore granted such acceptance must be unequivocal, positive, without reservation and according to the terms and conditions of the option as originally written.
“You are instructed that an agent is one who acts on behalf of another under the latter’s authority and for the latter’s benefit.
“Do you find from a preponderance of the evidence that sometime prior to expiration of the 1972 lease-option to purchase agreement, Robert Rue, as agent for W.E. Lessing notified Roger Collins, a member of the Chilton Independent School District Board, that he accepted the option to purchase the property which is the subject matter of this law suit?
“Answer, ‘We do so find’, or ‘We do not so find’ ”.
The jury answered, “We do so find”. The trial court granted Appellee’s motion for judgment non obstante veredicto, which alleged that there was no evidence that the Chilton Independent School District Board ever received notice of the acceptance prior to the option’s expiration.
Appellants, asserting two points of error, contend: (1) the trial court erred by rendering judgment for the Defendant notwithstanding the jury’s finding; and (2) the trial court erred by finding that as a matter of law the Appellants were required to personally attend the Chilton School Board meeting in order to give their notice to exercise the option.
It is fundamental that a trial court can grant a judgment non obstante veredicto only where a motion for instructed verdict would have been proper under the evidence. Rule 301, T.R.C.P.;
Boozer v. Stephens,
Since the option clause lacked any provisions specifying the manner or method of notifying Appellee, all that was required of Appellants was that they notify
optionor
of the acceptance of the option prior to its expiration. (Emphasis added).
San Antonio Joint Stock Land Bank v. Malcher,
We find there is sufficient evidence in the record to support an affirmative finding by the jury to the one issue submitted; therefore, such finding conclusively establishes that Rue gave Collins notice of the acceptance of the option prior to the expiration of the 1972 lease. Collins was *730 not the optionor, however, and this is the source of all of Appellants’ problems. The jury’s finding on this one fact issue, standing alone, cannot assure Appellants’ recovery in the trial court against Appellee, unless Appellants can establish that (1) actual notice to Collins is equivalent to actual notice to Appellee’s School Board as a matter of law, or (2) the School Board had, in some manner, acquired actual notice of Rue’s acceptance of the option either through Collins’ communications to the School Board or through some other means, or (3) notice to the School Board was, under the circumstances, imputed through Collins because of an agent-principal relationship.
Appellants contend that actual notice to Collins is equivalent, as a matter of law, to actual notice to Appellee’s School Board, citing during oral argument Subsection (c) of V.T.C.A., Education Code § 23.26 as the basis for their contention. Appellants’ reasoning is apparently based on the belief that, since Subsection (c) vests all right and title to all School District real estate in Appellee’s School Board, when Appellants gave actual notice of the acceptance of the option to purchase the real estate to an individual member of Appel-lee’s School Board, actual notice was, as a matter of law, given to Appellee’s School Board as a body. To support this argument, Appellants rely heavily on their assertion that acceptance of notice, under an option to purchase, is a purely passive undertaking and did not require any overt or affirmative act on the part of Appellee’s School Board. Thus, Appellants contend that the rule of law laid down in
Webster
v.
Texas & Pacific Motor Transport Co.,
It is a well established rule in this State, as well as in other states, that where the Legislature has committed a matter to a board, bureau, or commission, or other administrative agency, such board, bureau, or commission must act thereon as a body at a stated meeting, or one properly called, and of which all the members of such board have notice, or of which they are given an opportunity to attend. Consent or acquiescence of, or agreement by the individual members acting separately, and not as a body, or by a number of the members less than the whole acting collectively at an unscheduled meeting without notice or opportunity of the other members to attend, is not sufficient.
We cannot accede to Appellants’ argument on this proposition. Although Subsection (c) of § 23.26 does vest all right and title to Appellee’s real estate in the trustees of Appellee’s School Board, such vesting does not settle title upon the trustees individually but only vests title in the members collectively, as members of a governmental body. It would be fallacious to argue that one or more members of Appellee’s School Board, acting separately or individually, could sell, encumber or lease the real property of Appellee. Such business can only be transacted through their collective will, acting as a governmental body in accordance with all legal proscriptions attendant thereto. Just because title to Appellee’s real property was vested in Collins as a member of the collective body did not clothe Collins with any express, implied or apparent authority to do anything with Appellee’s real property as an individual, whether such act is characterized as truly passive or active.
The giving of notice to Appellee of the acceptance of the option to purchase was a crucial act on Appellants’ part, and it was incumbent upon Appellants to do so in a manner that was legally sufficient to bind Appellee’s School Board as a body. Appel-lee’s School Board was entitled to receive notice of the acceptance of the option as a body, and this Appellants have failed to do at their peril, by electing to deal with Collins as an individual. Unless Appellants can establish on appeal that the probative evidence before the trial court raised a fact question or proved as a matter of law that Appellee’s School Board as a body had received actual notice from Collins or in some other manner of the acceptance of the op *731 tion, or that Collins had express, implied or apparent authority to act as an agent for the School Board to accept notice of acceptance of the option, or that Appellee’s School Board, acting as a governmental body, ratified the unauthorized act of Collins in purporting to accept notice for the School Board, Appellants’ first point on appeal must fail.
Appellants also assert in their brief that notice to Collins was imputed to Appellee, citing as authority two cases arising under the Texas Tort Claims Act, V.A.C.S. art. 6252-19:
City of Galveston v. Shu,
We have looked in vain in the record for any probative evidence which would raise a fact issue or support an implied finding that Appellee’s School Board had acquired actual notice, through Collins or other means, that Rue had orally accepted the option in his conversations with Collins. At one place in the record, Rue testified as follows:
Q. What did you say to Mr. Collins in that particular conversation?
A. Well, he came down to the plant and we discussed what our plans were. We wanted, you know, to do some improving and I wanted to exercise the option in the contract to buy it.
Q. Did you tell him you wanted to do that?
A. Yes.
Q. What was his response to that?
A. What they wanted to do. They had been discussing it, because we had been talking about it at various times at the restaurant and so forth. They wanted to bring out some new appraisers and reappraise the property and reassess the value. (Emphasis added).
This is the only place in the record where any testimony, by Collins or Rue or any other witness, would indicate that Appellee’s School Board had discussed the matter around the time that Rue had given notice to Collins of his intent to accept the option. The testimony of a witness that an alleged agent had told him what the agent reported to his alleged principal is inadmissible for any purpose, since such evidence is mere hearsay.
Moore v. Marines,
Whenever an issue as to the existence of an alleged agency relation or the authority of an alleged agent is raised, the party who relies on the existence of the alleged relationship or who asserts that a particular act of the alleged agent was within the scope of his authority has the burden of proving such allegation by a preponderance of the evidence.
Buchoz v. Klein,
In order for the acts of the governmental body to be valid, it must act as a body.
Webster v. Texas & Pacific Motor Transport Co.,
supra. On the question of express agency, we have searched the record and failed to find any probative evidence which would raise a fact issue or support an implied finding that Appellee’s School Board had acted to grant any express authority to Collins to act as its agent with respect to its leases, real estate or any other matter pertaining to the business of the School Board. Implied authority must arise from some conferral of express authority. Since we have found no probative evidence of express authority, we hold that Appellants cannot rely on either express or implied agency to impute notice from Collins to Appellee’s School Board.
National Cash Register Co. v. Wichita F. Food Lockers,
Rue testified, however, that Collins “seemed to have the authority to do what he was talking about”, which asserts a belief by Appellants that Collins had apparent authority to act as an agent to receive notice of the acceptance of the option for the School Board. In reaching this conclusion, the record shows that Rue relied exclusively upon the deportment, actions and statements of Collins to form the basis of his belief that Collins had apparent authority to act as an agent for Appellee and that Appellants made no attempt to inquire whether Collins had any express or implied authority to act as an agent for Appellee in accepting notice under the circumstances presented.
Collins was a public officer by virtue of the fact he was an elected official of an independent school district. 51 Tex Jur 2d, Rev., Part 1, Schools § 70. In determining whether Appellants can reasonably rely on the doctrine of apparent agency to impute notice to Appellee’s School Board, it is necessary to examine the law of agency as it relates to public officers. The rule is that public officers cannot bind the government they represent beyond the authority conferred upon them in the absence of an estoppel.
Wilke v. City of Ballinger,
The doctrine of apparent authority is closely related to that of estoppel, and, before the doctrine of authority by estoppel can be invoked, it must be established that the principal held out the alleged agent as possessing authority sufficient to embrace the particular action done by the agent, or that the principal knowingly acquiesced in the agent’s assertion of authority, and also that the third person with whom the agent dealt relied prejudicially on the principal’s representation or conduct. 3 Tex.Jur.3d, Agency § 234. We find no probative evidence in the record which would support an implied finding or raise a fact issue that Appellee’s School Board ever held out Collins as possessing any authority whatsoever or that Appellee’s School Board knowingly acquiesced in Collins’ assertion of authority in any matter or that Appellants relied on any representations or conduct of Appellee’s School Board. Appellants cannot rely, therefore, on the doctrine of apparent agency to impute notice to Ap-pellee’s School Board.
Appellants argue that Appel-lee’s allowing Appellants to hold-over the leased premises from 1977 to 1981 and accepting the payment of rentals from Appellants during the hold-over period constituted evidence that Appellee ratified any unauthorized act of Collins in accepting notice of the exercise of the option. Where ratification is relied upon to establish the principal’s liability for an unauthorized act of his agent, the burden of proof is on the party who asserts such ratification.
Edwards
v.
Davidson,
Since Appellee had the legal right under the hold-over doctrine to allow Appellants to continue to occupy the premises and to receive and deposit rental payments from Appellants during such hold-over period, and, because of such legal relationship Appellee could do so independently and without knowledge of any alleged unauthorized acts by Collins, we hold as a matter of law that Appellants cannot infer from this particular action of the alleged principal any probative evidence of ratification by Appellee of Collins acting as its agent.
Appellants contend, also, that positive notice of Appellants’ intent to exercise the option came during the hold-over period in the form of attorney Malone’s letter of February, 1981, to Appellee’s School Board. The critical question presented is whether an option to purchase, under the terms and *734 conditions of the case at bar, survived during the hold-over so as to be optionable by Appellants. We think not.
Even though there is no express stipulation to the effect that “time is of the essence” in an option contract, the courts in Texas have held that such is the case in an option to purchase real property. Although not involving an option to purchase as a provision of a lease, in
Wilbanks v. Selby,
The Supreme Court of Texas in the case of
Kruegel v. Berry,
We do not find any compelling reason to distinguish an option to purchase, standing alone as an independent contract, from an option to purchase set forth in a lease agreement insofar as the question of time being of the essence is concerned. Appellants did not acquire any title to the land by the option contract. At most they secured only the right to acquire an interest in the land by complying with terms of the option. Appellants were not bound to purchase and could accept the offer and turn the option into a binding contract. (McCaleb v. Wyatt, supra). This set of circumstances is presented to an optionee whether the option is standing alone as a separate agreement or is contained in a lease agreement. Accordingly, we reject Appellants’ contention that the option could be exercised in 1981, some three or more years after the lease terminated by its own terms in July, 1977.
Appellants and Appellee, in their respective briefs, both assume that the trial court based his judgment non obstante veredicto on the principle that Appellants must have personally appeared before Appellee’s School Board in order to give sufficient notice of the acceptance of the option. A reading of the court’s judgment does not provide a foundation from which such assumption can be made. We find that the trial court’s judgment is unambiguous on its face and, therefore, is not to be interpreted in light of subsequent or prior statements or acts of the court evidencing judicial intent when judgment was rendered.
Cook v.
Smith,
Appellants’ second point of error is overruled.
Although the evidence supports the finding of the jury that Rue gave notice to Collins before the 1972 lease terminated, we are unable to find any probative evidence in the record to raise a fact question on agency, either express, implied or apparent; on estoppel or ratification of the alleged unauthorized acts of Collins; or on actual notice to Appellee’s School Board that Rue had attempted to accept the option under the lease agreement between Lessing and Ap-pellee.
We overrule Appellants’ points of error and the action of the trial court is affirmed.