Albright v. Long, 7989

• Decision Date: 17 November 1969
• Docket Number: No. 7989,7989
• Citation: 448 S.W.2d 564
• Parties: Grant L. ALBRIGHT, Appellant, v. L. E. LONG and wife, Margaret C. Long, Appellees. . Amarillo
• Court: Texas Court of Appeals

Page 564

448 S.W.2d 564

Grant L. ALBRIGHT, Appellant, v. L. E. LONG and wife, Margaret C. Long, Appellees.

No. 7989.

Court of Civil Appeals of Texas.

Amarillo.

Nov. 17, 1969.

Rehearing Denied Dec. 22, 1969.

Henry T. Ray, Amarillo, for appellant.

Lon Moser, Amarillo, for appellees.

DENTON, Chief Justice.

This suit was brought by appellant, Grant L. Albright, against L. E. Long and wife, Margaret C. Long, seeking to confirm the title in certain real property; to declare any lien or other interests claimed by the Longs a nullity, and for recovery of money. The Longs, by cross action, alleged a partnership interest in the property; sought to recover funds advanced to Albright; and to recover wages for services rendered Albright. The trial court rendered judgment for the cross plaintiffs for wages upon a jury verdict. The court confirmed the title to the real property in plaintiff and cross-defendant Albright, and denied cross-plaintiffs' partnership claim.

In answer to special issues submitted, the jury found: (1) Long and wife did not loan Albright $7,000.00 to be invested in the Drive-In-Market; (2) that the Longs did not loan money to Albright to pay operating expenses of the business; (3a) that there was an implied agreement to pay the Longs a reasonable salary for their labor and services for the drive-in-market; (3b) that the reasonable value for their weekly labor and services was $75.00 per week; (3c) and services were performed for a period of 190 weeks.

Appellant first contends the trial court erred in not permitting appellant Albright, plaintiff below, to open and close the jury argument. Albright filed the suit to confirm title in the real property in controversy; and have declared any lien claimed by the Longs a nullity. The Longs filed a cross action seeking recovery of alleged loans alleged to Albright; and for personal services rendered. The issues submitted were issues on the Longs' cross action, and the burden of proof rested upon them. Rule 269 Texas Rules of Civil Procedure provides that the 'party having the burden of proof on the whole case 'or on all matters which are submitted by the charge,' shall be entitled to open and (conclude the jury argument).' Parks v. Jones (Tex.Civ.App.) 407 S.W.2d 874; Puente v. Mata (Tex.Civ.App.) 346 S.W.2d 643 (ref. n.r.e.). The trial court properly permitted the Longs' counsel to open and close the jury argument.

Appellant next asserts the trial court erred in entering judgment for the appellees in the absence of a finding that appellant received any benefit for appellees' labor and services. It is undisputed both Mr. and Mrs. Long operated the liquor store 10 to 12 hours a day from August 1964 until the store was closed pursuant to an agreement of the parties in August 1968. It is also undisputed the Longs received no salary or any monetary benefits during this period. Appellant made no objection to the court's charge, therefore, he waived the right to complain for the first time on appeal. Rule 272 T.R.C.P., Wilson v. King (Tex.Civ.App.) 311 S.W.2d 957 (writ. ref.) Leatherwood v. Holland (Tex.Civ.App.) 375 S.W.2d 517 (ref. n.r.e.).

Appellant next takes the position the trial court erred in submitting the issues concerning an implied agreement to pay the Longs for their services. Again, appellant is faced with the fact he made no objection to the court's charge. Be that as it may, there is ample evidence such an agreement came into being. It is undisputed the Longs received $90.00 per week combined salary for approximately one year from the time the store was opened in August 1963 until August 1964. The reason for the stoppage of the Longs' wages was disputed. Albright testified he stopped paying the Longs because 'they did not...