Braugh v. Phillips

• Decision Date: 13 October 1977
• Docket Number: No. 1189,1189
• Citation: 557 S.W.2d 155
• Parties: Roger S. BRAUGH, d/b/a Braugh Ranches, Appellant, v. B. F. PHILLIPS, Jr., Appellee.
• Court: Texas Court of Appeals

Page 155

557 S.W.2d 155

Roger S. BRAUGH, d/b/a Braugh Ranches, Appellant, v. B. F. PHILLIPS, Jr., Appellee.

No. 1189.

Court of Civil Appeals of Texas, Corpus Christi.

Oct. 13, 1977.

Rehearing Denied Nov. 10, 1977.

Bruce D. Viles (on appeal only), Wood, Burney, Nesbitt & Ryan, Corpus Christi, Glusing & Sharpe, Kingsville, for appellant.

Robert Patterson, Keys, Russell, Seaman & Mansker, Corpus Christi, for appellee.

OPINION

YOUNG, Justice.

This suit was brought by B. F. Phillips, Jr., for the return of stallion service fees paid under breeding contracts, dated September 20, 1973, whereby two mares owned by Phillips were bred to a stallion owned by Roger S. Braugh, d/b/a Braugh Ranches.

Each of the breeding contracts, in paragraph 8, provided for refund of the stallion service fee if a live foal did not result from the mating. The refund was conditioned upon notification of Braugh by telegraph or certified mail within 48 hours of an abortion by the mare or the failure of the mare to produce a live foal. That paragraph further specified:

". . . Such first notification must be followed within 14 days of said mare's foaling or aborting by a certified veterinarian's statement giving the particulars to substantiate the fact that a live foal failed to result from the mating. If such first notification and such veterinarian's statement are not received by Stallion Owner within the prescribed times, Stallion Owner's agreement to refund the stallion service fee shall become null and void."

In the trial court Phillips contended in his pleadings that no live foals resulted from the matings; that all conditions precedent had been complied with by him; if not, that compliance had been waived by Braugh. Braugh contended that Phillips had not performed the conditions precedent and that consequently, under the terms of the two breeding contracts, he was under no obligation to return the service fees.

Trial was before a jury which answered in plaintiff Phillips' favor six special issues involving elements of substantial performance, waiver and estoppel. The trial court entered judgment on the verdict that Phillips recover the $10,000.00 in service fees, interest and costs. Braugh appeals from that judgment. We affirm.

The issues, each of which was answered "yes", are as follows:

"ISSUE NO. 1

Do you find from a preponderance of the evidence that the Plaintiff notified the Defendant that no live foal would be born as the result of the breeding of Truxton King and the mares Burning Match and Faquir Girl?

The term 'notified' as used in this issue means such notification to the Defendant as would enable the Defendant to make a determination of whether or not a live foal would result from the breeding of Truxton King and the mares Burning Match and Faquir Girl.

ISSUE NO. 2

Do you find from a preponderance of the evidence that the Defendant intended, by his letter of August 8, 1974, to require the Plaintiff to furnish only a veterinarian's statement to the effect that the mares were not pregnant, and no other notice, before the Defendant would refund the stallion service fees?

ISSUE NO. 3

Do you find from a preponderance of the evidence that the Defendant, when he sent the Plaintiff his letter of August 8, 1974, did so with full knowledge that the Defendant could insist on the Plaintiff giving notice as stated in the breeding contracts?

ISSUE NO. 4

Do you find from a preponderance of the evidence that prior to the time the Plaintiff sent the Defendant his letter of August 15, 1974, with the attached veterinarian's statement, the Defendant had, by his letter of August 8, 1974, led the Plaintiff reasonably to believe that the only further notice required before the Defendant would refund the stallion service fee would be to obtain a veterinarian's certificate to the effect that the two mares were not pregnant?

ISSUE NO. 5

Do you find from a preponderance of the evidence that the Plaintiff relied on the conduct of the Defendant to the extent that in good faith he believed that no other notice would be required by the Defendant before the Defendant would refund the stallion service fee?

ISSUE NO. 6

Do you find from a preponderance of the evidence that the Plaintiff would have filed the notice contained in Paragraph Eight (8) of the breeding contracts but for his belief that the Defendant would require only the notice contained in his letter of August 8, 1974, before refunding the stallion service fee?"

Appellant's basic position on appeal is that the appellee failed to comply with the terms of the contracts which called for compliance with conditions precedent by notice of non-pregnancy and delivery of a veterinarian's statement of particulars within specifically designated periods. Appellee counters by asserting that he is entitled to recover upon any of three theories submitted to the jury: substantial compliance (special issue 1); waiver (special issues 2 and 3); or estoppel (special issues 4, 5 and 6).

We will first resolve appellant's attacks on the charge as set out in his points 2, 5 and 10.

Appellant's point 2 challenges the submission of special issue 1 as immaterial. Appellant argues that the failure to specify the date on which notice was given made the jury's answer to special issue 1 evidentiary and thus immaterial. Appellant has waived the right to assert the error complained of here. This is so because in his objections to the charge about special issue 1 he does not complain that it is immaterial. Rule 272, T.R.C.P. states that any objection not presented is waived.

We note also that if the failure to include the date was error it was harmless error in that the judgment was supported by other issues. Commercial Standard Insurance Company v. Ford, 400 S.W.2d 934 (Tex.Civ.App. Amarillo 1966, writ ref'd n.r.e.); Rule 434, T.R.C.P. Appellant's point 2 is overruled.

Appellant in his point 10 complains that special issue 5 is ambiguous and that it is not limited to any particular conduct of the defendant. Appellant suggests that a proper submission of this issue would have included reference to Braugh's request that the mares be rechecked. Special issue 5 was submitted in the cluster with special issues 4 and 6 on the theory of estoppel. The purpose of special issue 5 was to establish good faith reliance by the plaintiff, an essential element for recovery by estoppel. See Graham v. San Antonio Machine and Supply Corporation, 418 S.W.2d 303 (Tex.Civ.App. San Antonio 1967, writ ref'd n.r.e.).

Appellant has challenged issue 5 on the basis of notice or representation when submitted as estoppel. This question was answered by special issue 4 when the jury found that refund was conditioned only on a veterinarian's certificate that the mares were not pregnant. Appellant, therefore, has raised error as to special issue 5 which is immaterial. The purpose of special issue 5 was to establish good faith reliance; therefore, the failure to clarify "no other notice" does not constitute error. The error asserted, if proper, should have been addressed to special issue 4. It was not. We therefore overrule appellant's point 10.

In his point 5 appellant alleges error in failing to submit the following requested issue on waiver:

"Do you find from a preponderance of the evidence that Defendant intended, by his letter dated August 8, 1974, to require Plaintiff in two weeks from August 8, 1974, to recheck mares Burning Match and Faquir Girl and to send Defendant a veterinarian's certificate to the effect that the mares were not in foal, before the Defendant would refund the stallion fee?"

It is clear that it is the trial court's duty to submit controlling issues which are raised by the pleadings and evidence. In so doing, however, the trial court is given discretion and is not required to follow the exact language of the pleadings. Green v. Walgreen Drug Company of Texas, 368 S.W.2d 688 (Tex.Civ.App. Beaumont 1963, writ dism'd); Rule 279, T.R.C.P. One of the crucial issues of this case raised by the pleadings and evidence is whether the appellant had intentionally waived his right to compliance by the appellee with the notice provision of the breeding contracts. This issue was sufficiently submitted in special issue 2. The requested issue was, therefore, merely a different shade of the submitted issue, and there can be no error in the refusal to submit such an issue. Texas & Pacific Railway Company v. Snider, 159 Tex. 330, 321 S.W.2d 280 (1959); Vahlsing Christina Corporation v. Ryman Well Service, Inc., 512 S.W.2d 803 (Tex.Civ.App. Corpus Christi 1974, no writ). Appellant's point 5 is overruled.

Appellant next assails each of the jury findings on the basis that there was legally insufficient evidence to support the jury's answers; that there was factually insufficient evidence to support the jury's answers. In considering these points we will be guided by the usual rules in that regard as set out by the Supreme Court in In Re: King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951) and the rules in Calvert's often cited treatise "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas L. Review 361 (1960).

We deem it appropriate at this point to discuss some of the rules concerning waiver and estoppel. Then we will apply the evidence to those rules.

It is clear that performance of conditions precedent to a contract can be waived by either words or deeds. Equitable Life Assur. Society of the United States v. Ellis, 105 Tex. 526, 147 S.W. 1152 (1912); Atomic Fuel Extraction Corporation v. Slick's Estate, 386 S.W.2d 180 (Tex.Civ.App. San Antonio 1964, writ ref'd n.r.e., 403 S.W.2d 784). Waiver, as it is commonly understood, is an intentional release, relinquishment, or surrender of a known right. Ford v. Culbertson, 308 S.W.2d 855 (Tex.Sup.1958); Massachusetts Bonding and Insurance Company v. Orkin Exterminating Company,158 Tex. 124, 416 S.W.2d 396 (1967). It is essential that the right exist at the time of waiver, ...