Zephyr Oil Co. v. Cockburn

3 Citing cases

  1. Whitlock Associates, Inc. v. Aaron

    383 F.2d 72 (10th Cir. 1967)   Cited 3 times

    In any event, the contract contains no such requirements, and under Texas law "A contract must be interpreted according to the intention of the parties at the time it was made and not in the light of events occurring thereafter." McCain v. Giersch, 5 Cir., 112 F.2d 70, 72; see also Davidson v. Von Lingen, 113 U.S. 40, 5 S.Ct. 346, 28 L.Ed. 885; Portland Gasoline Co. v. Superior Marketing Co., 150 Tex. 533, 243 S.W.2d 823; Burtis v. Butler Bros., Tex.Civ. App., 228 S.W.2d 938; Zephyr Oil Co. v. Cockburn, Tex.Civ.App., 215 S.W.2d 647; Gardner v. Smith, Tex.Civ.App., 168 S.W.2d 278. There was evidence that after the signing of the contract, the purchasers would have been satisfied with a 5-year permit, and it was not until Texas Industries, at the very last moment, concluded that it could not live with such a short period, that the 10-year provision was demanded.

  2. Furnace v. Furnace

    783 S.W.2d 682 (Tex. App. 1990)   Cited 14 times
    Holding that appellant who argued at trial that trust agreement was ambiguous and should go to jury for interpretation could not on appeal assert that the trust agreement was unambiguous and should be interpreted as a matter of law

    More importantly, however, appellant is not permitted to argue a theory on appeal that is different from that presented to the court below. It is axiomatic that, having argued ambiguity and lost in the trial court, appellants cannot now assert that the trust agreement is unambiguous. Davis v. Campbell 572 S.W.2d 660, 662 (Tex. 1978); Hilsher v. Merril Lynch, Pierce, Fenner Smith, 717 S.W.2d 435, 441 (Tex.App. — Houston [14th Dist.] 1986, no writ) Phillips v. Inexco, 540 S.W.2d 546, 550 (Tex.Civ.App. — Tyler 1976, writ ref'd n.r.e.); Zephyr Oil Co. v. Cockburn, 215 S.W.2d 647, 651 (Tex.Civ.App. — Galveston 1948, writ ref'd n.r.e.). Appellants' position throughout the trial was that the trust agreement was ambiguous.

  3. Thompson v. Denham

    250 S.W.2d 460 (Tex. Civ. App. 1952)   Cited 3 times

    of his injuries to such as were received by him on that fixed date of March 18, 1948; so that, in framing the inquiry to the jury, the Court limited him to what, if anything, he suffered on that date, and no other. For this reason, it seems clear that the needless repetitions in the form of the issue, which appellant insists constituted both a charge on the weight of the evidence to the effect that an injury did occur to the appellee and an assumption that it occurred on 'March 18, 1948, made the basis of this suit,' etc., may not properly be so construed. Our courts have held in similar cases that such instructions as those here under review limited the elements of damage to those specified, both as to extent and time of occurrence. See Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880; J. H. Robinson Truck Lines v. Ragan, Tex.Civ.App., 204 S.W.2d 662; Texas Employers Insurance Association v. McKay, 146 Tex. 569, 210 S.W.2d 147; Zephyr Oil Co. v. Cockburn, Tex.Civ.App., 215 S.W.2d 647, writ refused, n.r.e. Especially would the rule applied in these just-cited cases apply here because this criticized issue No. 29 was not only the damage issue but it was the last one (except No. 30, which went out of the case), of a comprehensive charge to the jury, in which the learned trial judge had literally cross-examined the jury upon all the detailed issues-of-fact raised by the pleadings and evidence.