Citations
- 733 F.2d 1108
Full opinion text
ALVIN B. RUBIN, Circuit Judge:
This breach of contract diversity case turns on the interpretation of contracts by which a petroleum refiner agreed with an oil buyer to construct a petroleum terminal and to deliver large quantities of diesel and heavy oil at the completed terminal over a ten-year period. Directed by a Texas court’s interpretation of a notably similar contract, subsequent to the trial of this case, we conclude that the refiner breached the contract and, therefore, vacate the district court’s judgment in favor of the refiner
, , . . , The buyers counterclaim sought dam- „ ,, ,, „ „& , , ages from the retmer-seller for fraudulent- „ ly inducing it to enter the contract and for overpricing products sold. The district court entered a directed verdict on this claim. We conclude that there was sufñcient evidence to warrant submission of that issue to the jury. Therefore, although the alleged fraud and overpricing affected only the relatively small quantity of oil actually purchased, we reverse the judgment on the counterclaim and remand for a trial of that claim.
A third party, who contracted to repurchase the oil from the initial purchaser, asserted a claim for indemnity under an alleged hold-harmless contract and under the Texas Deceptive Practices Act. We affirm the judgment in favor of the third party on the hold-harmless claim, but conclude that it was not a consumer entitled to invoke that Act.
I. FACTS
South Hampton Company, which operated a petroleum refinery at Silsbee, Texas, entered into two contracts with Stinnes Corporation, a diversified holding company operating through its Stinnes Oil & Chemical Co. division. One contract required South Hampton to deliver large quantities of diesel oil, the other to deliver large quantities of heavy oil. Each required Stinnes to buy the oil and each required South Hampton to construct a petroleum termmal on the banks of tbe Neches Rl™r’ near Beaumont, Texas. Stmnes simultaneously entered into two contracts with tt m. /r> + i tv . , . , , United Petroleum Distributors for resale to United of the products purchased by Stinnes from South Hampton at a markup of 42$ per barrel.
AU four contracts contained identical termS; which we paraphrase as follows:
Terminal:
Each required South Hampton to construct a terminal at the refinery with tankage for 110,000 barrels of heavy oil and 50,000 barrels of diesel,
Terminal Facilities and Functions:
Each required that (a) shore storage , , , , . , , , ¿ tanks were to be an integral part of ,, , . , , the terminal and (b) the terminal was to be a facilit at which certain basic functions-including acurate pre-trangit testing> measurement, and certification of product and passage of liability; and rjgk of loss_would be performed. Each provided for performance 0f these functions “at the time of each deliVery” using “Seller’s shore tank strappings» and »Seller’s shore tank gample„ from the , rn - iijBuyer s vessel to Seller s Terminal loading v ,, , ni ui i hne ... or other mutually agreeable place xcj-itt i i. i , • of delivery. South Hampton has not directed our attention to any evidence in the voluminous record showing that it agreed to assume responsibility for all shrinkage, loss, or contamination during product movement. Following the Texas courts’ lead in Dave Summers Realtors, Inc. and in Varibus, we regard the alleged waiver in this case as an attempt to modify the contract orally and hold that it is rendered a nullity by the unambiguous terms of the no-oral-modification clause.
2. Alternative Source
As mentioned above, South Hampton had option to cure its nonperformance of the Stinnes contracts’ “Terminal” provisions by offering an alternative source of supply. This option was not available when Varibus cancelled its contracts, South Hampton argues that this difference requires a different result in the present case. Because we have concluded that the word “Terminal” is unambiguous, and its requirements have not been waived, South Hampton may prevail only if it satisfied the alternative source provisions of the contracts.
South Hampton contends, somewhat inconsistently with its waiver theory, that the out-turn agreement satisfied the alternative-source option. We conclude that South Hampton failed properly to exercise 0py0ri) both in form and substance.
Stinnes urges that [t]he acceptance of ° „„ , L,J , , r an option, to be effectual, must be unquah- . fied, absolute, unconditional, unequivocal, . ’ ... unambiguous, positive, without reserva- ® tion, and according to the terms and conditions of the option," quoting Vratis v. Baxter, 315 S.W.2d 331, 337 (Tex.Civ.App.1958) writ ref. n.r.e. (quoting 91 C.J.S. Vendor and Purchaser § 10, p. 853). We do not aeree that theT/rate standard apPlies to thls case’ . Vratls concerned the sa e of a radl° statl°n> n°t » contfct for sale of g°ods under the U-C-C- as does the Present case.
“An option is a contract in which the offeror is bound to hold open an offer for a specified period of time. Robertson, et al., Business Law: Uniform Commercial Code 136 (5th ed. 1982). Accordingly, we turn to the U.C.C. provision on offer and acceptance, which provides: “Unless otherwise unambiguously indicated by the language or circumstances (1) an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances.” Texas Bus. & Comm.Code Ann. § 2.206(a)(1). The contracts do not provide for any particular manner of acceptance or exercise of the option. South Hampton did not articulate its intention to exercise the option, but it contends that its conduct manifested such an intention. Although the Code implicitly permits acceptance by performance, South Hampton made neither proffer of performance nor exercise of its option in a manner “reasonable in the circumstances.” Stinnes had substantial cause to question whether South Hampton intended the post-January 1 deliveries to invoke the alternative-source option. Stinnes therefore took the most sensible course: it asked South Hampton. When confronted directly with the simple question whether it was exercising its option, however, South Hampton refused to reply. Silence in response to a direct inquiry, made necessary by doubtful circumstances that South Hampton itself created, hardly comports with even a generous reading of the word “reasonable.” Smith &
Even had South Hampton communicated its intentions in a reasonable manner, the source it offered would not measure up to contractual standards. The only alternatives it offered were the barges at the Neches River slip or the incomplete terminal. The option clause did not specify criteria for the alternative source. Section 1.01, however, mandated that Buyer and Seller were to perform their respective obligations “at Seller’s Terminal, or elsewhere, in accordance with the terms of the contract.” Reading the contract as a whole, we conclude that it unambiguously required South Hampton substantially to meet the measurement and inspection obligations, even if it were to deliver product from an alternative source. The parties made completion of a terminal that allowed satisfaction of those obligations, by January 1, 1976, so critical that its failure — for any reason whatsoever, including force majeure — authorized cancellation of the contracts. Although a provision plainly intended to preserve the deal in the face of adversity might reasonably be expected to comtemplate less-than-perfect performance, it is not a carte blanche to ignore major contractual obligations. Under South Hampton’s argument, it might continue to supply produce from barges floating in the Neches River for the entire ten-year term of the contract.
The contractual terms expressly required tankage, with facilities for accurate measurement of product. A facility that itself did not satisfy the contract could not either in common sense or law be considered an adequate alternative.
South Hampton argues that its volume of out-turn deliveries evidence the commercial reasonableness of that practice. South Hampton did deliver 700,000 barrels of oil to purchasers from the incomplete terminal, approximately 80,000 to Stinnes. These deliveries demonstrate that the pipeline functioned to deliver oil; they do not demonstrate that the terminal was complete or that this method of delivery satisfied the contract requirements. The terms under which the buyers of the other 620,-000 barrels chose to accept delivery are irrelevant to interpretation of the Stinnes contracts. And, as South Hampton concedes, the 80,000-barrel transaction with Stinnes was not a sale covered by the contract. It was instead a spot sale, at a reduced price, made for the sole benefit of United, with Stinnes waiving its 42$ per barrel profit margin.
IV. FRAUD
The district court dismissed Stinnes’s counterclaim that South Hampton made false representations in negotiating the contracts. Under Texas law, actionable fraud requires proof that: (1) a material misrepresentation was made; (2) the representation was in fact false; (3) the representation was known to be false when made or was made recklessly without knowledge as to its truth and as a positive assertion; (4) the representation was made with the intention that it be acted on by the other party; (5) that party did act in reliance on the representation; and (6) injury resulted. There was sufficient evidence in support of each of these elements to send the claim to the jury.
As set forth above, the contracts contained a formula by which the price of the oil was to be determined from time to time. This formula was based on the cost to South Hampton of crude oil and “other feedstocks to the refinery.” “Other feed-stocks” cost less than crude oil and, when included in the price computation, reduce the cost of both diesel and heavy oil and produce a lower price for each. Throughout the trial, Stinnes contended that the phrase “and other feedstocks to the refinery” meant all feedstocks purchased by South Hampton regardless what their ultimate use would be. South Hampton contended that the phrase was intended to include only those feedstocks that were used to produce heavy fuel oil or diesel and it did not include the cost of “other feed-stocks” in computing the price.
The contract also included an example of computation, leading to the price of $10.04, which is referred to in Part I of this opinion. Stinnes adduced evidence that this example set a benchmark to be used for verification of the actual price to be charged before the contracts were executed and for auditing during their operation.
There was evidence that the parties intended the example to be accurate and that its terms were a major factor in Stinnes’ decision to obligate itself to a ten-year contract. There was also evidence that South Hampton had intended to exclude the cost of feedstocks not used to produce -diesel and heavy oil but knew that Stinnes thought they would be included and that, during negotiations, South Hampton knowingly understated both the $10.04 price in the example and the $8.19 crude oil component and did not disclose this understatement to Stinnes. The district court nonetheless directed a verdict for South Hampton on this claim.
South Hampton first responds that the evidence does not prove that it made a promise with the intention not to perform, and contends that the record, when read as a whole, shows at most a failure of communication concerning the meaning of the language which was to be included in the contract. Moreover, it disputes that Stinnes justifiably relied on any representation made by it, pointing to Stinnes’s right to make an audit and the audit it made in December, 1975. Stinnes’s right to make an audit, however, does not negate the possibility of fraud; it merely casts doubt on whether it in fact relied on South Hampton’s alleged misrepresentation. On this element of fraud, as on the others, South Hampton has demonstrated the existence of a factual dispute. But the existence of a factual dispute is what creates a jury issue unless the evidence is so one-sided that a reasonable juror could not credit any other interpretation. South Hampton’s contentions are all supported by the record, and they may well satisfy the trier of fact. They are not, however, established so firmly that a reasonable jury might not decide to the contrary.
South Hampton further argues that Stinnes’s claims for lost profits and overpricing do not describe actionable injury; for lost profits are not recoverable as damages for fraud and any overcharges were passed on to United under Stinnes’s cost-plus contracts. South Hampton’s first argument ignores Texas law. The U.C.C. provides that “[rjemedies for material misrepresentation or fraud include all remedies available under this chapter for non-fraudulent breach.” Texas Bus. & Comm. Code Ann. § 2.721. Those remedies include both recission and consequential damages. See Id. at § 2.715(b). In general, lost profits are “consequential damages” as contemplated by this subsection.
South Hampton quotes Collins v. McCombs, 511 S.W.2d 745 (Tex.Civ.App.1974), writ ref. n.r.e., as support for its assertion that lost profits are not recoverable by Stinnes: “[I]t has been settled that ... the measure of damages for fraud and deceit is not what the plaintiff might have gained, had the representation been true, but what he has lost.” Id. at 747. Viewed in context, it is obvious that the quoted language from Collins is simply not apposite. It appears in the court’s analysis of the question whether the plaintiff’s suit was an action sounding in tort, or “an indirect attempt to recover for the breach of an unenforceable oral promise,” which would be barred by the statute of frauds. Id. The action was not brought under the U.C.C. for lost profits as consequential damages.
And South Hampton’s second argument simply creates another factual question: whether Stinnes suffered any direct loss, or was able to pass all overcharges onto United by way of mitigation.
Pretermitting the correctness of the directed verdict, South Hampton contends that the jury’s answer to Interrogatory 2 is a specific fact finding that South Hampton’s interpretation of the pricing provision was correct, and that Stinnes’s interpretation was not. That interrogatory asked the jury whether South Hampton had breached the contract by overpricing. The jury answered, “No.” The thrust of South Hampton’s argument is that the jury’s verdict precludes a finding that South Hampton misrepresented the pricing provision to Stinnes.
In its charge to the jury, the district court outlined both parties’ competing interpretations of “other feedstocks” and instructed that the jury’s answer should depend upon which one it believed. The court went on, however, to instruct the jury that, if it found “South Hampton acted in good faith, [its] answer would be ‘No’.” Later in its charge, the court told the jury “that no fraud exists as a matter of law, in this lawsuit.” It is unclear from the context of these remarks whether the court was referring solely to United’s deceptive-trade-practices claim, which it mentioned immediately before the quoted passage, or to all fraud claims, including Stinnes’s claim against South Hampton. The court’s language easily bears with the latter interpretation, which, if considered by the jury in evaluating the good-faith charge for special interrogatory No. 2, might have led the jury to understand a negative answer was required. Viewing the charge as a whole, as we must, we cannot conclude that the jury, if properly instructed on the element of fraud as applied to this case, would have reached the same result.
V. UNITED’S CLAIMS
The jury found that Stinnes had agreed to hold United harmless from any damages sustained by it as a result of taking products under the contracts with Stinnes, and assessed this damage at $149,320.69. The hold-harmless claim rested solely on testimony concerning a verbal agreement. There was other testimony to the contrary and Stinnes sets forth reasons to question the credibility of the United executive whose testimony furnished the principal evidence of that agreement. That testimony did not evidence a categorical commitment to make good any loss in cash. But the credibility of the witness in the face of contradictory testimony and the inferences that might reasonably be drawn from the statements made were matters for the jury.
In addition to assailing the credibility of the testimony, Stinnes contends both that the alleged oral statements were too vague to create a binding obligation and that in any event United, by cancelling its contracts in January, failed to perform its end of the alleged contract. Neither argument is persuasive. Although some agreements may, under Texas law, be too amorphous to be enforceable, a contract is sufficiently definite if a court is able to determine the respective legal obligations of the parties. “The provisions of the contract which may at first appear incomplete or uncertain are often readily made clear and plain by the aid of common usage and reasonable implication of facts.” Estate of Griffin v. Sumner, 604 S.W.2d 221, 229 (Tex.Civ.App.1980), writ ref. n.r.e. United claimed losses arising out of mismeasurement and overpricing. The testimony evidencing the formation of the alleged hold-harmless contract referred generally to those losses and suggested that the parties understood the references. Stinnes has had no difficulty determining its own losses from mismeasurement and overpricing, and has offered no reason why we should take a different view of United’s position.
A promise to forego assertion of a colorable claim for breach of contract obviously inures to the promisor’s detriment, and in this case to the promisee’s benefit; therefore, there is sufficient consideration to support enforcement of a contract. Continued performance despite substandard measurement and pricing conditions constituted United’s consideration for Stinnes’s promise of indemnity.
United did thereafter seek concessions and ultimately terminated its contract. The jury might properly have inferred that United was not obliged to accept noncomplying delivery for the entire ten-year term, and that Stinnes had the benefit of such continued purchases as United chose to make. Stinnes made a profit on each sale, and hoped, it is apparent, to work out matters in such fashion as to benefit by the full term of the contract. Whether United’s continued negotiations and ultimate cancellation of the contract negate the existence of the hold-harmless agreement was for the jury to determine; those circumstances do not necessarily betray a failure of consideration for Stinnes’ promise.
United also contends that, because Stinnes subsequently refused to reimburse United for its losses, the hold-harmless promise was a false or deceptive act or practice giving rise to a cause of action for treble damages and attorney’s fees under the Texas Deceptive Trade Practice and Consumer Protection Act. Tex.Bus. & Comm.Code §§ 17.46, 17.50. The district court properly directed a verdict against United on this claim. Those provisions of the Act protect only consumers. At the time of the alleged promise, insofar as is here relevant, it defined “consumer” as a “corporation who ... acquires by purchase ... any goods,” and goods as “tangible chattels ... purchased ... for use.” Tex. Bus. & Comm.Code § 17.45. United was not a consumer, as thus defined; for it did not purchase oil not for use but for resale. Moreover, United has not directed our attention to any evidence in the record of any “false, misleading, or deceptive” acts by Stinnes. The mere insistence on litigation to determine one’s obligations hardly constitutes such a practice. Stinnes’s denial of the contract, although insufficient to earn a directed verdict, was not patently frivolous.
VI. UNFAIR TRIAL
Stinnes raises numerous points of error concerning the conduct of the trial. Only one merits discussion. During the trial, opposing counsel made various references to Stinnes’s German ownership, and contrasted South Hampton’s and the jurors’ local roots with Stinnes’s German and New York ties. Although Stinnes has now prevailed in its appeal against South Hampton, our disposition of United’s hold-harmless claim keeps this issue from becoming moot.
Although counsel’s arguments to the jury contained irrelevant and potentially prejudicial comments, the trial court’s refusal to grant a new trial was not an abuse of discretion under the particular circumstances we now review. We apply this standard because the trial judge is in the best position to evaluate the impact on the jury of the attorney’s conduct, and to determine the most effective response to ensure a fair trial.
The objectionable comments by United’s attorney did appeal blatantly to ethnic and regional prejudices. But the court cautioned the jury to disregard remarks concerning Stinnes’s corporate status as well as its foreign parentage; and under the facts of this case, we conclude that the warning was sufficient to smother the inflammatory effect of these comments. Such remarks are, however, not only improper but reflect disregard by counsel of his duty to the court and to the adversary system which supposes a fair contest, not under-handed blows.
VII.
For these reasons we: (1) VACATE judgment in favor of South Hampton, and REMAND for entry of judgment in favor of Stinnes, on South Hampton’s breach of contract claim; (2) REVERSE the directed verdict in favor of South Hampton on Stinnes’s fraud claim and REMAND the case for a new trial on this issue alone; (3) AFFIRM the judgment in favor of United and against Stinnes for $149,320.69; and (4) AFFIRM the verdict rejecting United’s deceptive trade practices claim.
. Christopher v. Safeway Stores, Inc., 644 F.2d 467, 471 (5th Cir.1981); R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex.1980); Martin v. Schneider, 622 S.W.2d 620, 622 (Tex.Civ.App.1981) writ ref. n.r.e.; see generally, 14 Texas Jur.3d § 375 at 630-31 (1981).
. R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., supra at 518-19; Alba Tool and Supply Co., Inc. v. Industrial Contractors, 585 S.W.2d 662, 664 (Tex.1979).
. The Varibus contract read: "SELLER will construct, or cause to be constructed, SELLER’S Terminal and tankage. The combined capacity of such tankage at SELLER’S Terminal and refinery shall include heated storage capacity ____” The analogous provision from the Stinnes contract provided: "SELLER will construct, or cause to be constructed, "SELLER’S Terminal and tankage at the Terminal and Refinery which shall include Both sets of contracts contained provisions for shore tank samples and strappings. If anything, the Stinnes contract appears more clearly to have required tankage at the terminal, as well as at the refinery, in § 1.04.
. 3 Corbin on Contracts § 554, at 219 and n. 60.
. Texas courts have repeatedly declared that the question of whether a contract is ambiguous is one of law for determination by the court. See, e.g., R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., supra at 518-19; Aztec Services, Inc. v. Quintana-Howell Joint Venture, 632 S.W.2d 160, 162 (Tex.App.1982); National Living Centers, Inc. v. Cities Royalty Corp., 619 S.W.2d 422, 424 (Tex.Civ.App.1981); D.C. Edwards & Co. v. Fisher, 610 S.W.2d 546, 549, writ ref. n.r.e. (Tex.Civ.App.1980); First National Bank in Dallas v. Kinabrew, 589 S.W.2d 137, 146 (Tex.Civ.App.1979), writ ref. n.r.e. See also Christopher v. Safeway Stores, Inc., 644 F.2d 467 (5th Cir.1981). We understand these cases to mean that the determination of ambiguity, like other fact questions, will sometimes be a question to be answered by the judge and not the jury. In that sense, as Corbin recognizes, the question is in effect one of law. See 3 Corbin, supra, § 554 at 220. The determination, however, does not become imbued with stare decisis effect just because a j udge made it.
. 3 Corbin on Contracts § 554 at 222-25. See supra note 5.
. National Surety Corp. v. Western Fire & Indemnity Co., 318 F.2d 379, 387 (5th Cir.1963).
. Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex. 1976).
. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974).
. Burchfield v. Markham, 156 Tex. 329, 294 S.W.2d 795, 798 (1956), cert. denied, 353 U.S. 988, 77 S.Ct. 1284, 1 L.Ed.2d 1143 (1957); Rock Island Ind. School Dist. No. 907 v. County Bd., 423 S.W.2d 665, 669 (Ct.Civ.App.1968).
. Cf. Texas Construction Associates, Inc. v. Balli, 558 S.W.2d 513, 521 (Tex.Civ.App.1977) (construction contract); D.H. Overmeyer Co. v. Harbison, 453 S.W.2d 368, 370 (Tex.Civ.App.1970) (same).
. Laredo Hides Co., Inc. v. H & H Meat Products Co., Inc., 513 S.W.2d 210 (Tex.Civ.App.1974), writ ref. n.r.e.; Texas Construction Associates, Inc. v. Balli, supra at 521.
. Dave Summers Realtors, Inc. v. Astro Leasing, Inc., 603 S.W.2d 301, 302 (Tex.Civ.App.1980). Texas law permits a contract to be modified by subsequent oral agreement, notwithstanding the inclusion of a no-oral-modification clause, if the contract is not required by law to be in writing to be enforceable. See, e.g., Hyatt Creek Builders v. Board of Regents, 607 S.W.2d 258, 265 (Tex.Civ.App.1980). The South Hampton-Stinnes contracts, however, are for the sale of goods, valued at well over $500, and therefore must be in writing to be enforceable. Tex.Bus. & Comm.Code Ann. § 2.201(a).
. We note that South Hampton, in its offensive use of waiver theory, has taken a somewhat novel position. It insists that it, not Stinnes, has waived the shore tankage requirement. Consequently we are not called upon to decide if Stinnes’s acceptance of product delivered on an out-turn basis constitutes a waiver of the shore tank requirement. Similarly, South Hampton has not argued that Stinnes’ actions could be construed as a ratification of any modification. A i 4. j u u r... , As we have noted above, however, Stinnes s A r .i j. c toleration of the temporary expedient of ac- . y t . i n ceptmg product on an out-turn basis hardly amounts to acquiescence in the revision of an important contract term.
. South Hampton’s position on this issue is unclear. In its briefs, it seems to argue that out-turn deliveries invoked its option to provide product at an alternative source. At oral argument, however, counsel conceded that pre-January deliveries did not involve the alternative-source option because South Hampton was not then required to have completed the terminal, Counsel further conceded that post-cancellation deliveries were really spot sales, transacted outside the contract. It is conceivable that de- , T . , it T liveries made between January 1 and the cancel- , A c u u J .. lation date fell within the alternative-source prov¡sion In the Iight of our conciusion, however, we need nQt specuIate further on the basis for South Hampton’s theory.
. "Where the beginning of a requested performance is a reasonable mode of acceptance, an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed.” Texas Bus. & Comm.Code Ann. § 2.206(b).
. See supra note 15 and accompanying text.
. Church’s Fried Chicken, Inc. v. Jim Dandy, 608 S.W.2d 242, 244 (Tex.Civ.App.1980).
. Our disposition of the breach issue in favor of Stinnes moots the question raised by its contention that, because the South HamptonStinnes and Stinnes-United contracts constitute one transaction, the real deal was between South Hampton and United, with Stinnes in the role of an "accommodating party” and therefore entitled to indemnity from United for its liability to South Hampton. For the same reason, we need not address the arguments raised by the parties concerning the proper measure of damages suffered by South Hampton.
. Stone v. Lawyers Title Insurance Corp., 554 S.W.2d 183, 185 (Tex.1977); Oilwell Division, U.S. Steel Corp. v. Fryer, 493 S.W.2d 487, 491 (Tex.1973).
. See Neuhaus v. Kain, 557 S.W.2d 125, 136 (Tex.Civ.App.1977), writ ref. n.r.e. ("To avoid a contract for fraud, the fraudulent misrepresentation must have been relied upon to the extent that it was a controlling factor in inducing the making of the contract, and without which the contract would not have been made.”).
. South Hampton characterizes Stinnes’s claim as based on South Hampton's alleged failure to perform a promise, made with an intent not to perform. Such a claim requires proof of present intent not to perform a future promise. Foster v. Reed, 623 S.W.2d 494, 495-96 (Tex.Civ.App.1981).
. Dura-Wood. Treating Co. v. Century Forest Industries, Inc., 675 F.2d 745, 754 (5th Cir.1982), cert. denied, 459 U.S. 865, 103 S.Ct. 144, 74 L.Ed.2d 122, appeal after remand 694 F.2d 112 (1983); General Supply & Equipment Co., Inc. v. Phillips, 490 S.W.2d 913, 920 (Tex.Civ.App.1973), writ ref. n.r.e.
. LaCaze v. Olendorff, 526 F.2d 1213, 1220 (5th Cir.1976); Smith v. Hearod, 498 F.2d 663, 665 (5th Cir.1974).
. See, e.g., Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940, 942 (1944); Terrell v. Nelson Puett Mortgage Co., 511 S.W.2d 366, 369 (Tex.Civ.App.1974).
. See, e.g., Moore v. Dilworth, supra at 942; Estate of Griffin v. Sumner, 604 S.W.2d 221, 228-29 (Tex.Civ.App.1980), writ ref. n.r.e.
. See also Bendalin v. Delgado, 406 S.W.2d 897, 900 (Tex.1966).
. Cf. Coffman v. Meeks, 119 S.W.2d 96, 96-97 (Tex.1938) ("A pending cause of action, or a judgment duly entered by a court, may be the subject of a contract."); see generally 14 Texas Jurisprudence § 110 at 186-87 and n. 91 (3d ed.1981).
. Trial v. McCoy, 553 S.W.2d 199, 201 (Tex.Civ.App.1977), aff'd after remand, 581 S.W.2d 792, 794 (1979); Russell v. Hartford Casualty Insurance Co., 548 S.W.2d 737, 741 (Tex.Civ.App.1977), writ ref. n.r.e.; Bourland v. State, 528 S.W.2d 350, 358 (Tex.Civ.App.1975), writ ref. n.r.e.
. The provisions of the Act which apply to this case are those in effect as of November, 1975, the time the alleged deceptive acts occurred. See Riverside Nat'l Bank v. Lewis, 603 S.W.2d 169, 172 (Tex.1980); Ratcliff v. Trenholm, 596 S.W.2d 645, 648-49 (Tex.Civ.App.1980), writ ref. n.r.e., aff’d after remand, 636 S.W.2d 718 (1982), reversed on other grounds, 646 S.W.2d 927 (Tex.1983).
. See Ratcliff v. Trenholm, supra at 649; Trial v. McCoy, supra at 201, aff’d after remand, 581 S.W.2d at 794.
. Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 781-82 (5th Cir.1983).
. Id.
. The remarks of United's counsel, in his argument to the jury that Mr. Forticq personally faced tangible losses from the overcharges, provide a good example:
I think it’s that type of philosophy, the philosophy to take off to Germany and leave the problems and the people who are emeshed [sic] in those problems here is the type of philosophy that threatens to push gasoline to two or three dollars a gallon and pass the tab on to you and I [sic]. Now, this case will end very soon. Mr. Bomer will go back to his refinery in Silsbee and hold court on Bomer’s Island and Herr Bohlen and his lawyers would hop in their jet and disappear to faraway places, but people like Mr. Pierson and Ed Fourticq are going to be here in Texas and Mr. Fourticq is going to have to go home .... [emphasis supplied]
The objection of counsel for Stinnes was overruled, and counsel for United continued:
Mr. Fourticq will have to go home and explain to his wife and two sons about what type of justice he got in the Texas courts and I'm asking you to give him that justice ----
In his closing argument, counsel for South Hampton also attempted to evoke juror prejudice. Quotation of these remarks would be redundant. Moreover, as to South Hampton, we reverse the result on other grounds.
. LaCaze v. Olendorf, 526 F.2d 1213, 1222-23 (5th Cir.1976). Compare Caldarera v. Eastern Airlines, Inc., supra (plaintiff’s counsel accused the defendant airline of callous indifference to loss of human life; court's verdict was on quantum of damages only, and indicated no inflammatory effect) with Crowell-Collier Publishing Co. v. Caldwell, 170 F.2d 941 (5th Cir.1948) (defendant airline accused of having implied that plaintiff Governor favored the lynching of blacks; excessive jury award of punitive damages evidenced prejudicial impact).