author: DUNAGAN, Chief Justice.

text:
    James H. STUCKEY et al., Appellants, v. UNION MORTGAGE & INVESTMENT COMPANY, Inc., Appellee.
    No. 54.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 22, 1964.
    Rehearing Denied Nov. 5, 1964.

      Herman W. Mead, Houston, for appellants.
    John T. Golden, Vinson, Elkins, Weems & Searls, Houston, for appellee.
   DUNAGAN, Chief Justice.

This suit was instituted by Union Mortgage & Investment Company, Inc., Appel-lee, against James H. Stuckey and Glen R. Bowman, a partnership doing business as Bowman-Stuckey Properties, Appellants, seeking to recover a commission upon an alleged oral contract under which Appellee agreed to secure for Appellants a loan commitment for the refinancing of Appellants’ Community Center, located in Houston, Texas. It was alleged that for the obtaining of a loan commitment in the amount of $225,000.00, Appellants agreed to pay Ap-pellee a fee of one per cent of said sum. Appellee alleged its performance in the procurement of the commitment for Appellants and a refusal by Appellants to pay the fee. A verdict was rendered favoring Appellees. Appellants appealed from a judgment entered against them for the amount of $2,250.00

Appellants are the owners of a community center in Houston, Texas. Appellee is a loan brokerage company engaged in the business of securing loan commitments for its clients. Being desirous of a loan for additional improvements on these properties, James H. Stuckey, one of the partners, contacted Appellee’s president, C. T. Tray-lor, Jr., about October, 1959, at which time a loan in the amount of $225,000.00 was sought by Appellants. From that date until about December, 1959, various negotiations were carried on, but apparently Traylor had been unsuccessful in procuring a loan for Appellants. During this same period, Stuckey likewise was making efforts, in his own behalf, to secure the loan from various lending institutions. His efforts, like Traylor’s, were meeting with no success.

In December, 1960, Stuckey made an application for the loan with American National Life Insurance Company. The latter refused the loan in January, 1961. About this time, Traylor again contacted Stuckey requesting a further opportunity to secure the loan commitment. Stuckey consented and forwarded to Traylor the loan application dated January 26, 1961. After January 26, 1961, and apparently while Appellee was seeking the loan commitment from General American Life Insurance Company, Stuck-ey made an application for the loan with Jefferson Standard Life Insurance Company. The latter gave Appellants a commitment dated February 23, 1961. Stuckey admitted that he agreed to pay the one per cent fee to Appellee if it was successful in obtaining the type of loan Appellants desired. Appellee succeeded in obtaining a loan commitment which was transmitted by it to Appellants by letter dated February 24, 1961. This case arises because of the failure of Appellants to pay to Appellee the one per cent brokerage fee — it being Appellants’ contention that Appellee had not procured an unconditional loan commitment in accordance with the application and, therefore, had earned no fee.

By its first Point of Error Appellants complain of the Trial Court’s action in overruling their Motion for Instructed Verdict. Appellants contend that Appellee failed to establish the existence of a contract in that Appellee had failed to prove an “offer and acceptance.”

In determining the correctness of the Trial Court’s action in this regard, we must determine whether there was sufficient evidence of probative force to raise a fact issue on a material question. Sullivan v.. Airhart, 336 S.W.2d 776 (Tex.Civ.App., 1960), no writ; Air Conditioning, Inc. v. Harrison-Wilson-Pearson (1960), 151 Tex. 635, 253 S.W.2d 422. In considering such Motion, the evidence must be considered most favorably in behalf of the party against whom the instruction is sought., White v. White (1943), 141 Tex. 328, 172' S.W.2d 295; Stevens v. Karr (1930), 119' Tex. 479, 33 S.W.2d 725. This is the rule though the evidence may be legally insufficient to support a verdict. Wallace v. Southern Cotton-Oil Co., 91 Tex. 18, 40 S. W. 399; Maryland Casualty Co. v. Morua (Tex.Civ.App., 1944), 180 S.W.2d 194, er. ref.; Great Atlantic & Pacific Tea Company v. Giles (Tex.Civ.App., 1962), 354 S. W.2d 410, er. ref., n. r. e. A peremptory instruction should not be granted if the evidence raises any material issue, and such an instruction is warranted only when the evidence is such that no other verdict could have been rendered. Stevens v. Karr, supra. Applying these rules, we conclude-that the Trial Court correctly overruled Appellants’ Motion for Instructed Verdict.

Appellee’s suit was one for a fee allegedly earned under an express oral contract with Appellants, whereunder Appellee agreed to obtain a loan commitment for Appellants. Allegations of performance of the contract by Appellee and a refusal to pay on the part of the Appellants were made.

Appellants denied generally Appellee’s allegations; asserted further that if such an oral agreement, as alleged by Appellee, was made, the same was for a period of time of less than six months and that Appellee was unable to perform its obligations under such oral contract within such period of-time. Appellants further alleged that Ap-pellee was never able to obtain an unqualified commitment and that the only one procured by Appellee was a qualified conditional commitment.

Under the pleadings of Appellee, it had the burden to establish the oral contract and to secure findings that it had performed its obligation thereunder, or that Appellants had either accepted the performance as shown by Appellee, or had, by its conduct, ratified the same. Hollums v. Hancock, (Tex.Civ.App., 1944), 180 S.W.2d 209, no writ.

In Stevens v. Karr, supra, it is stated that a commission ordinarily becomes payable on completion of the transaction which the broker was employed to negotiate unless stipulated to the contrary. If, by the contract of employment, the broker is merely to find a customer who is able, ready, and willing to enter into a transaction with the principal on terms prescribed by him, the broker is entitled to compensation upon performing that service; whether or not the principal completes the transaction.

If the broker finds a customer who is ready, willing and able to consummate the transaction on terms prescribed by the principal, or even on terms that are later ratified as satisfactory by the principal who later refuses to complete the transaction, the broker is nonetheless entitled to his compensation. Hollums v. Hancock, supra; Harrison Bldg. Co. v. B. F. Dittmar Co. (Tex.Civ.App., 1928), 4 S.W.2d 1038, no writ. Having alleged an express oral contract with Appellants to procure the loan commitment and its performance, it was, of course, incumbent upon Appellee to produce evidence of probative force raising these issues. Whether there was performance on the part of Appellee, or whether there were circumstances from which the jury could reasonably infer performance, were matters for the jury, provided there was evidence thereof. The question of performance, assuming evidence raising the issue, was for the jury. Kitchen v. Lloyd, (Tex.Civ.App., 1928), 14 S.W.2d 335, no-writ. The basis of Appellants’ Motion for Instructed Verdict is that there was no evidence of an “acceptance” in the case. Appellants say that if the application submitted' by Stuckey is the offer involved, there was-no unqualified “acceptance” because the commitment submitted to Appellants was not identical with the application. Further, if the commitment submitted by Appellee is considered a “counter-offer,” Appellants assert there was no evidence showing an •“acceptance” of such counter-offer. In-either event, it is Appellants’ position, there was no evidence of the formation of a contract. We do not agree. Appellee pled that it orally agreed to secure a loan commitment for Appellants in the desired sunn of $225,000.00. For the obtaining of such a commitment, Appellants agreed to pay Appellee a one per cent commission. Ap-pellee alleged it did procure such a commitment acceptable to Appellants, but Appellants refused to pay the fee. Under Appellee’s pleadings, it was unnecessary that the commitment be actually used by Appellants in order to entitle Appellee to-its commission. If Appellee procured the-loan commitment desired by Appellants, or such a loan commitment acceptable to them,, by such performance Appellee had earned the commission. The fact that Appellants-declined to use the commitment procured by Appellee would not necessarily preclude-its recovery. In order to determine whether there was any evidence of probative-force raising these issues, a review of the-evidence in some detail is necessary.

C. T. Traylor, Jr., president of Appellee, testified that after previous efforts in 1959' to procure the loan commitment had failed,, he called Stuckey in January, 1961, and inquired as to whether the loan had been secured. Stuckey replied.that it had been submitted to American National Life Insurance Company and he was then awaiting' a reply. Stuckey advised him that if he did not get an answer .within seven to-ten .-days-he would again talk to Traylor.- In about two weeks Stuckey, called Traylor and advised him that American National Life Insurance Company had declined the loan, and he then asked Traylor if he desired to res.ubmit the application. Traylor replied affirmatively and told Stuckey 'that it would not take much time to determine whether he could get the loan commitment inasmuch ■as much of the work had already been performed. Traylor denied that Stuckey gave •him any. specified time within which to procure the commitment. Traylor advised him the loan application would be submitted to General American Life Insurance Company. Stuckey at that .time, gave Traylor an application fee of $450.00. According to Traylor, the parties had a complete understanding that Traylor’s fee would be one per cent of the amount of the loan commitment and Stuckey agreed to pay su,ch fee. Traylor further testified that on the day prior to the issuance of the loan commitment ■from Appellee to Appellants (February 24, ■1961), Stuckey called him and asked if the •commitment would be forthcoming.. Tray-lor replied, that they would have it the following day.,. ;i - ■ :

... On .the following day the loan compartment was given. Appellants.. The c>nly; question raised- by Stuckey was the -absence of a prepayment privilege in the loan commitment. According- to. Traylor, although it was not normal to put such prepayment privilege in the commitment,.Traylor pror cured a letter giving such privilege .and delivered it to Stuckey the following day. Traylor was out of town for a few days and, upon returning, contacted Stuckey inquiring as to whether the fee would be forthcoming. To this Stuckey replied “yes,” and further advised Traylor that he had Appellee’s loan commitment at the hank and as soon as the bank approved the construction plans, he would notify Traylor as to whether he would pay the fee in cash or by a lien placed against the property. Traylor further testified the commitment he procured was a standard commitment and, in the industry, he had never seen an “unqualified” commitment. Thereafter, Tray-lor again' called Stuckey who told him the commitment was still at the bank. At no time after the loan commitment was dé-livered to Stuckey did he ever advise Tray-lor he did not want the commitment. Tray-lor thought Stuckey was using the loan .commitment; It was not until approximately two weeks later that Traylor learned that Stuckey was not going to use the commitment. When questioned by Traylor as to why he was not using the commitment, .Stuckey told him he was not going to accept .it but he refused to return the commitment .to Traylor. Stuckey would give no reason to Traylor for not using the commitment.

Called as an adverse party, Stuckey testified in detail concerning the transaction between the parties. He corroborated Tray-lor’s testimony relating fo the -latter’s attempts to secure a loan commitment from the latter part of 1959 until December, 1960. According to his' testimony, Stuckey had likewise made numerous attempts to pro-cúre the loárn and his application to American National Life-Insurance Company'Of Dallas was declined in January; .1961. He admitted that- 'the ‘type of commitment he desired was not given Traylor by any written, memorandum or letter, and that the parties- had; numerous discussions. relating to the'type of'loan desired by Appellants. He- admitted that, : customarily, 'money promised by' a loan commitment is riot available until the building is finished and; áp-pro'ved' by the lending institution. ' Aftér .a loan commitment is procured, according to Stuckey, interim financing is usually necessary and that matter is handled through a local bank. He testified that he expected from Appellee a loan commitment from a lender which could be presented for interim financing pending completion of the improvements. He admitted that they were expecting to use interim financing. At the time Appellants signed the application form for Appellee, they made two payments by check — one to Appellee for $40.00 and the second to American General Life Insurance Company for $450.00, the latter being a “closing fee” — but Stuckey did not know the purpose of the other check. Stuckey admitted that the amount of the commission was agreeable to him if Appellee was successful in obtaining the type of loan desired. At about the time the application form was signed by Stuckey on January 26, 1961, he forwarded to Traylor financial reports. Leases existing between the tenants and Appellants on the properties had theretofore been delivered to Appellee for submission to the lending institution. Stuckey did not know the exact date the written application given Appellee was submitted to General American Life Insurance Company. He further testified that about two weeks following January 26, 1961, he personally made an application for the loan with the Jefferson Standard Life Insurance Company. The latter gave Appellants a commitment dated February 23, 1961. Stuckey could recall no conversation or discussion of the matter after February 1, 1961, prior to receiving the commitment of Jefferson Standard on February 23, 1961. Stuckey testified further that he had no quarrel with the commitment that Tray-lor submitted dated February 24, 1961, except that paragraph 5 of Appellee’s loan commitment required that all leases on the properties be satisfactory to General American Life. In comparing the two commitments, namely the one submitted by Appel-lee and the one secured by Stuckey from Jefferson Standard Life Insurance Company, Stuckey admitted there were very minor differences between them. An examination of the Jefferson Standard Life commitment and paragraph 4 shows that the commitment likewise provided for an assignment of satisfactory leases. Stuckey further admitted that prior to February 24, 1961, he had not advised Traylor that he did not want the loan from General American Life Insurance Company. There is no testimony that prior to that time he 'demanded or requested the refund of any moneys he had advanced to Traylor with the application form. Stuckey testified when asked if there was any reason he would not give the loan commitment back to Appellee Traylor as follows:

“Q. It wouldn’t have been of any further use to you?
“A. Not after we decided not to use it, except to use in this case.
“Q. You never did request this application be withdrawn.
“A. I am sure I did not.
“Q. You had to pay no broker’s fee with Jefferson Standard?
“A. It was negotiated directly with the company.”

Stuckey admitted that he never notified Traylor that he had applied to Jefferson Standard for a loan or that he did not desire for Traylor to do any further work on procuring the loan commitment. Stuckey did not inform Traylor that he had obtained the loan from Jefferson Standard until the latter part of February, 1961. At that time, Stuckey had already received Appellee’s loan commitment letter. The following testimony by Stuckey is significant:

“Q. You didn’t tell him though that you had applied with Jefferson Standard even while he was working on this case with General American?
“A. No, I didn’t.
“Q. Is there any reason you didn’t tell him?
“A. No particular reason. I didn’t assume that he should know all my business.
“Q. In other words you were putting in two requests for commitments and hoping that you would get the best one.
“A. I see nothing wrong with putting in ten.
“Q. That is what you did. It that right ?
“A. That is correct.”

The evidence raised issues as to whether Appellee had performed its obligation under the contract alleged or, if there had not been full performance, whether Appellants accepted such performance as made by Appellee so as to entitle it to the commission. The versions of the parties differed materially and, under such circumstances, it was for the jury to resolve the differences and determine from all of the facts and circumstances in evidence the existence of the contract, its terms as contemplated by the parties and whether Appel-lee had performed it. Bell v. Keays (Tex. Qv.App., 1907), 100 S.W. 813, no writ. 'Performance vel non of the contract by 'Appellee, under' the facts and circumstances in evidence, was a proper question of fact 'for the jury. Hamilton v. Wm. H. Swanson Film Co. (Tex.Civ.App., 1918), 206 S.W. 574, no writ; Yaeger v. Long Bros. Drilling Co. (Tex.Civ.App., 1941), 147 S.W. 2d 276, er. ref.; Morgan v. Young (Tex.Civ.App., 1947), 203 S.W.2d 837, er. ref, n. r. e.

We conclude that such evidence, together with all reasonable inferences to be drawn therefrom in the light most favorable to Appellee, was amply sufficient to raise the issues submitted. The Trial Court did not err in overruling Appellants’ Motion for Peremptory Instruction. Likewise, the Trial Court properly overruled Appellants’ Motion for Judgment Non Obstante Vere-dicto, Appellants’ fifth Point of Error.

Appellants cite and rely principally .upon the case of Hutchings v. Binford (Tex. Civ. App, 1918), 206 S.W. 557, no writ. Bin-ford employed Hutchings, a loan broker, to secure a loan for him with an agreement for a commission of $400.00 to be paid for such services. The broker entered into negotiations with a lender which resulted in Binford making a written application to the lender for a loan. The application was approved. The lender prepared the loan papers and forwarded them .to a bank with instructions to deliver the checks upon execution of the papers by Binford. The Deed of Trust contained certain conditions and provisions which, it later was claimed, were not within the contemplation of the parties. Binford resided outside of the state and his negotiations for the loan had been conducted through his son, who did not keep his father advised of the facts causing the delay or progress made in closing the loan. Meanwhile, Binford made arrangements for the loan elsewhere and, when notified that the lender’s papers were at the bank, did not examine them but declined outright to proceed further with the loan. It was admitted that the terms and conditions of the loan as prepared by the lender did not correspond to the terms and conditions of Binford’s application. In order to have complied with the conditions of the loan commitment, it would have been necessary for Binford to have raised elsewhere .an additional sum of $6,000.00. The Court, in denying relief to the broker, held that he did not establish that he had procured a loan on the terms authorized or that Binford had ratified or approved the departure. The Court states, however, at page 559: “He had the right, of course, if he saw fit to do so, to vary the terms of the loan contract, and, if it’was accepted on such varied terms, the loan broker would have been entitled to his commission; ” Binford did not know of the variance and, therefore, could not be held to have accepted it. There was no claim that Binford accepted the loan commitment in the terms proposed, or even agreed to pay a fee with knowledge of the changes. Moreover, the changes were substantial and material and greatly affected the purpose for which Binford sought the loan. In the case now before us, the facts and circumstances surrounding Appellee’s commitment raised issues of fact as to Appellants’ satisfaction with or acceptance of Appellee’s performance. These features clearly distinguish the Hutchings case from the one under consideration.

By second, third and fourth Points of Error Appellants complain of the Court’s action in submitting Special Issues 1, 2 and 3; the Court’s failure to submit its five requested Issues; and its failure to disregard the jury’s findings as to the Issues submitted.

The Court submitted three Issues. Special Issue No. 1 inquired as to whether Appellants, through James Stuckey, on or about January 26, 1961, orally contracted with Appellee to secure for it a loan commitment; Special Issue No. 2 inquired as to whether Appellee, in accord with the contract between the parties, secured a loan commitment for Appellants; and Special Issue No. 3 inquired as to whether Appellants agreed to pay Appellee a one per cent commission contingent upon Appellee securing for Appellants a loan commitment from General American Life Insurance Company in accordance with the written loan application dated January 26, 1961, submitted by Appellants. Each of the Issues was answered favorably to Appel-lee.

Prior to submission of the cause to the jury, Appellants objected to the form of Special Issues 1 and 2 upon the ground that the inquiries did not refer to the written application of Appellants’ dated January 26, 1961, directed to General American Life Insurance Company. This objection was overruled. No objection was made by Appellants to Special Issue No. 3 or to any other portion of the charge.

Under Rule 274, Texas Rules of Civil Procedure, a party objecting to the Court’s Charge must point out distinctly the matter to which he objects and the grounds of his objection. It must identify the defect, the respect in which the Issue is allegedly defective, and the reasons why the same is defective. Failure to do so results in waiver. Associated Indemnity Corp. v. Kujawa (1954), 153 Tex. 314, 268 S.W.2d 122; Hayes v. Nichols (Tex.Civ.App., 1947), 203 S.W.2d 274; Johnson v. Allen (Tex.Civ.App., 1955), 285 S.W.2d 771, no writ; Edwards v. Strong (1948), 147 Tex. 155, 213 S.W.2d 979; Frozen Foods Express v. Odom (Tex.Civ.App., 1950), 229 S.W.2d 92, er. ref., n. r. e.; Fisher v. Leach (Tex.Civ.App., 1949), 221 S.W.2d 384, er. ref., n. r. e.; Casas v. Knorbin (Tex.Civ.App., 1949), 218 S.W.2d 289, no writ; Allen v. American National Ins. Co. (Sup.Ct., 1964), 380 S.W.2d 604. Appellants’ objection to Special Issues 1 and 2 pointed out to the Trial Court no reasons why the Issues were defective. It is not apparent to this Court, from the objection made, why the mere omission of the reference to the written application dated January 26, 1961, made the Issues defective. The jury could hardly have been misled by such omission inasmuch as neither party contended there was any application for a loan by Appellants, for which suit was brought, other than Appellants’ application dated January 26, 1961, to the General American Life Insurance Company. An objection to. an Issue must make clear to the Trial; Court the nature and object of the complaint so that the Court is given a fair opportunity to correct the Issue if the objection is tenable. Appellants’ objections to Special Issues 1 and 2 did not comply with the Rule 274. Not having made any objections to Special Issue No. 3 prior to submission of the case to the jury, Appellants are not in a position here to question it as to any defect, omission or default in pleading. Nor will the fact that Appellants’ requested' Special Issues in a form they assert is more desirable than those submitted benefit the Appellants because a mere request for an Issue will not suffice as an objection to an Issue submitted. Objections and Request for Submissions are not alternative permissible modes of making an objection to the Court’s Charge. To be effective, an objection must be made. City of Dallas v. Priolo (1951), 150 Tex. 423, 242 S.W.2d 176; City of Denton v. Hunt (Tex.Civ.App., 1950), 235 S.W.2d 212, er. ref., n. r. e.; Texas State Highway Department v. Reeves (Tex.Civ.App., 1942), 161 S.W.2d 357, er. ref. For the reasons stated, Appellants’ objections to the Charge do not present error.

Error is claimed in the failure of the Court to submit Appellants’ five requested Special Issues. Three of these requests were as follows:

“Do you find from a preponderance of the evidence that Defendants, James Stuckey and Glen Bowman through James Stuckey, orally contracted with Plaintiff, Union Mortgage & Investment Company, to secure a loan commitment from General American Life Insurance Company on or about January 26, 1961, in accordance with the terms of the written loan application dated January 26, 1961, and submitted to General American Life Insurance Company ?
“Do you find from a preponderance of the evidence that Plaintiff, Union Mortgage and Investment Corporation secured a loan commitment from General American Life Insurance Company for Defendants, Bowman-Stuckey properties in accordance with the terms of a written application dated January 26, 1961, directed to General American Life Insurance Company?
“Do you find from a preponderance of the evidence that defendant Bowman-Stuckey properties agreed to pay plaintiff, Union Mortgage & Investment Company, Inc., the amount of $2250 on the loan commitment secured for defendants by plaintiff?”

Rule 279, Texas Rules of Civil Procedure, provides that the failure to submit an Issue shall not be deemed a ground for reversal unless its submission in substantially correct wording has been requested in writing by the complaining party. The Rule contains, however, a proviso that an objection to such failure shall suffice if the Issue is one “relied upon by the opposing party.” The above requested Issues, regardless of whether in substantially correct wording, were Issues “relied upon by the opposing party” because they constituted a ground of recovery or elements thereof by Appellee. Therefore, in order to complain of the omission of such Issues, it was necessary only that Appellants object to their omission from the Charge. If the Issues submitted by the Court were defective, Appellants had the duty to obj ect to them, Rule 274, T.R.C.P. Appellants, therefore, now complain of the omission from the Charge of Special Issues “relied upon” by Appellee. The omission of such Issues can hardly be prejudicial to Appellants. They would be better off if the Issues were never decided. Such omissions are rarely prejudicial to the complaining party. Hodges, Special Issue Submission in Texas, p. 179. Moreover, the record does not reflect that Appellants objected to the Charge because of its failure to include the Issues and accordingly, for the reasons stated, no grounds for reversal are shown. Texas Employers’ Insurance Ass’n. v. Neuman, (Sup.Ct., 1964), 379 S.W. 2d 295; Rule 279, T.R.C.P.

Appellants requested the following Issue:

“Do you find from a preponderance of the evidence that the loan commitment submitted by Union Mortgage and Investment Company to Bowman Stuckey Properties, dated February 24, 1961, was conditional and subject to. receipt of a new lease on the medical' clinic known as MacGregor Medical Clinic.”

If it can be said that the above-requested Issue is an ultimate Issue which ■presented Appellants’ defense, or an element thereof, raised by the pleadings and evidence, the Trial Court’s refusal to submit the same was proper inasmuch as the Issue rvas not “in substantially correct wording” as required by Rule 279, supra. The quoted language means “in such form as the Court could properly submit as presented.” Thomas v. Billingsley, (Tex.Civ.App., 1943), 173 S.W.2d 199, er. ref. The requested Issue was deficient in the following respects: (a) whether the loan commitment, dated February 24, 1961, referred to was. “conditional” constituted a question of' law; (b) the same required the jury to pass upon the legal effect of a written instru-' ment; and (c) the Issue, as framed, was multifarious, containing' more than one inquiry.

The last Issue requested by Appellants is as follows:

“Do-you find from a preponderance of the evidence that Plaintiff, Union Mortgage & Investment Company failed to provide an unqualified loan com-mittment from General American Life Insurance Company to Defendants, Bowman-Stuckey, properties in accordance with the written loan application dated January 26, 1961.”

This Issue, likewise, was not “in substantially correct wording” under Rule 279 and its submission was properly refused. The requested Issue as framed called upon the jury to determine the legal question as to whether the loan commitment submitted to Appellants by Appellee was in “accordance” with the written loan application dated January 26, 1961, and whether it was “unqualified.” It is held that Issues which require a jury to pass upon legal questions or the legal effect of written instruments are properly refused. Newton v. Gardner (Tex.Civ.App., 1949), 225 S.W. 2d 598, er. ref., n. r. e.; Cole v. Waite (1952), 151 Tex. 175, 246 S.W.2d 849; Alamo Casualty Co. v. Trafton (Tex.Civ.App., 1950), 231 S.W.2d 474, no writ.

Appellants’ fourth Point of Error complains of the Trial Court’s action in overruling their Motion to Disregard Jury Findings on the grounds that the three Issues answered by the jury were “incomplete and inconclusive.” The Motion referred to asserted that the three Issues submitted by the Court were in “conflict” because the Court “would of necessity have to presume, surmise and speculate upon the meaning of Special Issues Nos. 1 and 2 if attempting to connect or associate them with Special Issue No. 3.”

A party who seeks to set aside a verdict on the grounds of conflicting answers must show that one of the conflicting answers, when considered in connection with the rest of the verdict, excluding the Issue with which it allegedly conflicts, necessarily requires the entry of a judgment different from that which the Court has entered. Little Rock Furniture Mfg. Co. v. Dunn (1949), 148 Tex. 197, 222 S.W.2d 985; Bradford v. Arhelger (1960), 161 Tex. 427, 340 S.W.2d 772. Appellants do not attempt to demonstrate that under this test there exists any fatal conflicts in the verdict. It is the duty of the Trial Court, where conflicting answers exist, to reconcile them if possible. Perkins v. Mitchell (1954), 153 Tex. 368, 268 S.W.2d 907; Ford v. Carpenter (1949), 147 Tex. 447, 216 S.W.2d 558. The verdict should not be set aside on this ground unless the answers are in- such irreconcilable conflict as to be mutually destructive. Southwest Bitulithic Co. v. Dickey (Tex.Civ.App., 1930), 28 S.W.2d 264, no writ. The Issues submitted by the Court established (1) that Appellants orally contracted with Appellee to secure a loan commitment; (2) that Appellee, in accordance with such oral contract, secured a loan commitment for Appellants; and (3)’ Appellants agreed to pay. Appellee a fee in a stipulated amount contingent upon Appellee securing a loan commitment for Appellants from General' American Life Insurance Company in accordance with the conditions of the written loan application dated January 26, 1961. If any one of said Issues be disregarded, the remaining Issues would not compel the entry of a judgment for Appellants, or a judgment differing from the one entered. If Special Issues 1 and 2 inquire about a transaction differing from that inquired about in Special Issue 3, a party has the right to submit to the jury alternate grounds of recovery or of defense. It cannot be said that the Issues here are either mutually destructive or present an irreconcilable conflict.

Although Appellants object in terms of “conflict,” as we analyze the Point of Error, the real complaint is that the answers to the three Issues submitted do not establish for Appellee a complete ground of recovery. The answers to Special Issues 1 and 2 established, respectively, the making of the oral contract and its performance by Appellee. The only real dispute between the parties, as developed in the evidence, related to whether Appellee had performed its oral agreement .to procure the loan commitment. Ample evidence raised the Issue as to whether Appellants had accepted Ap-pellee’s loan commitment as a “performance” of the contract or, if the commitment varied materially from the loan application, the jury was authorized to find under Special Issue. No. 2 that Appellants had ratified the changes; Ratification, under the facts of this case, at least was an Issue tried by implied consent because Appellants failed to make a timely exception to Appellee’s pleadings, and failed to object to the submission of Special Issue No. 2 on tenable grounds. Moreover, Appellants did not object to the evidence relating to ratification or acceptance by Appellants of the performance and, therefore, are in no position to question it here. Rule 67, T.R.C.P.; Miller v. Keyes (Tex.Civ.App., 1948), 207 S. W.2d 257, no writ; Morris Plan Life Insurance Company v. Wells (Tex.Civ.App., 1963), 367 S.W.2d 410, no writ.

Aside from the reasons above stated, the judgment entered below may likewise be sustained under the “presumed findings” provision of Rule 279, T.R.C.P. If the commitment procured by Appellee for Appellants varied materially from the application made, the Issue of ratification of the changes by Appellants was necessarily referable to the Issues submitted and will be deemed found by the Court in such a manner as to support the judgment. Appellants made no objection to the omission of such Issue from the Charge and made no request for its submission to the jury. Rodriquez v. Zavala (Tex.Civ.App., 1955), 279 S.W.2d 604, no writ history; 3 McDonald, Texas Civil Practice, 1157; Bigelow v. Rupp (Tex.Civ.App., 1946), 192 S.W.2d 791, writ ref., n. r. e. A closely analogous case is found in A A A Air Conditioning & Mfg. Corporation of Texas v. Barr (Tex.Civ.App., 1944), 186 S.W.2d 825, er. ref. In the cited case, the Plaintiff brought suit upon an oral contract of employment. Its. existence, as well as performance thereunder, was denied. The Trial Court submitted one Issue inquiring as to whether the oral contract had been made. The second Issue, inquiring as to performance, was so conditioned that the jury was not required to answer it. Judgment was rendered for Plaintiff. In sustaining the judgment, the Court held that the rendition of the personal services (performance) was but an element or component part of Plaintiff’s recovery, and authorized the Court to resolve the Issue in such a manner as to support the judgment. In our opinion, if it can be argued that there is no jury finding of “performance” by Appellee, under the circumstances, such a finding will be deemed to have been found by the Trial Court in such a manner as to support the judgment. Our conclusion in this regard disposes also of Appellants’ sixth Point of Error.

By their seventh and last Point of Error, Appellants make the general complaint that the Trial Court erred in “Overruling Defendant’s Motion for New Trial based upon the Assignment of Errors Contained in such Motion.” It is well established that Rule 418, T.R.C.P., requires a Point of Error to direct the attention of the Court to the particular error relied upon. Such point must not be multifarious or too general. Appellants’ Motion for New Trial contained eleven Assignments of Error. Appellants’ seventh Point, therefore, is multifarious and too general and does not merit consideration. Dallas Fountain and Fixture Company v. Hill (Tex.Civ.App., 1960), 330 S.W.2d 648, er. ref., n. r. e.; Tindall v. Tacconelly (Tex.Civ.App., 1959), 328 S.W.2d 909, er. ref., n. r. e.; Wagner v. Foster (1960), 161 Tex. 333, 341 S.W.2d 887; Rule 418, T.R.C.P.

Finding no reversible error in the Points presented, the judgment of the Trial Court is affirmed.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    Perry G. GATHRIGHT et al., Appellants, v. George RUSSELL, Appellee.
    No. 46.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 22, 1964.

      John H. Holloway, Houston, for appellants.
    John K. Meyer, Hinds & Meyer, Houston, for appellee.
   MOORE, Justice.

The opinion heretofore rendered on July 23, 1964, is withdrawn and the following is substituted therefor.

This is a suit for conversion of a shrimp boat brought by Appellee, George Russell, against Appellants, W. L. Keeling and Perry G. Gathright. Appellee Russell originally purchased the boat from Dr. Phillips, paying therefor the sum of $750.00 in cash, and executing his note and chattel mortgage for the remaining balance in the amount of $780.00, payable in monthly installments of $65.00 each. Thereafter, on May 15, 1961, Dr. Phillips assigned the note and chattel mortgage to Appellant Gathright. A non-suit having been taken as to Dr. Phillips, the cause of action proceeded against Appellants Gathright and Keeling.

Appellants’ pleadings consisted of a General Denial only. In view of this pleading Appellee, prior to trial, made a Motion In Limine requesting the Court to refuse to allow Appellants to introduce any evidence of a chattel mortgage. The Court announced that he would make no ruling on the Motion, but that he would take the Motion along with the case with the understanding that Appellee would not be considered to have waived his objection to any evidence of a chattel mortgage by reason of his failure to object to such testimony each time it was offered.

Following a jury trial, judgment was rendered for the Appellee Russell for the sum of $1,000.00 actual damages and for $1.00 against each of the Appellants, Gath-right and Keeling, as exemplary damages.

The Statement of Facts reveals that immediately after Appellee Russell purchased the boat, he stored same at Muecke’s Boat Dock at Seabrook, Texas, where, according to his testimony, he made extensive repairs. Thereafter, on May 15, 1961, Appellants Gathright and Keeling purchased the note and chattel mortgage from Dr. Phillips for .the sum of $700.00 in cash, which was paid by Keeling. The assignment of the note and mortgage, however, was made to Gathright. Shortly thereafter, during the latter part of May or the first part of June, Gathright and Keeling, without notifying Russell, went to Muecke’s Boat Dock, took possession of the boat and towed it to Anchor Boat Works in Houston, a distance of some 20 miles.

According to Appellee Russell, after finding his boat to be missing from the dock, he made a search for the same but never learned of its whereabouts until around the 10th day of August, 1961, at which time he learned that it was at the Anchor Boat Works in Houston, where he immediately went and found both the Appellants to be working on the boat. He testified that he advised them he had come to take his boat, but that Appellants told him if he did so he would wind up in the cemetery; that he was unable to get possession of the boat, but within a few days he found the boat had been returned to Muecke’s Boat Dock, but Mr. Muecke would not allow him to go aboard the boat until the controversy was settled. According to his testimony, neither of the Appellants ever offered to return the boat to him and therefore he had never accepted the boat back before it was destroyed by Hurricane Carla on September 11, 1961.

Appellee admits that he had paid only one monthly installment, but contends that the reason he failed to pay the installments was because Dr. Phillips was too busy to deliver certain other equipment in accordance with their agreement, and in view of this fact, he finally settled the matter with Dr. Phillips by paying him $190.00 in satisfaction of the note and mortgage.

Appellants admit they took the boat, but only because Appellee was several months in arrears on his monthly payments. They testified that in view of this, they felt that they had a right under the mortgage to not only repossess the boat, but also to keep the same because of the non-payment of the note. They admit they never attempted to post notices or sell the same at the Courthouse door in accordance with the provisions in the mortgage. Appellant Keeling admits that he returned the boat to Muecke’s Dock and paid the storage thereon for one month in advance, at which time he told Mr. Muecke about the dispute and admitted that he could have “possibly” told Mr. Muecke not to allow Russell to go aboard the boat. He admits that after he returned the boat to Muecke’s Dock, he went aboard approximately once a week for the purpose of putting on a set of nets and also for the purpose of starting the engines and pumping the bilges and that he continued to do this until the boat was finally destroyed by the hurricane. He admitted that after the boat sank, he attempted to raise the boat, and being unable to do so, removed all parts that he was able to salvage.

The mortgage in question contained the following essential provisions:

“The Mortgagor hereby expressly agrees and covenants that on default of payment of principal or interest, or any sale, or any attempt to sell said goods or chattels, or any part of them, or to remove them, or any part of them from the county, or from their present location, or upon any seizure of any part of them, by any process of law, or if any holder of said note shall at any time feel unsafe or insecure from any cause, then, and in any of the foregoing events, said Mortgagee or assigns, agents or representatives is hereby authorized at his option to declare all of said note due and to take actual possession of said property, and to sell same at public auction, for cash, at the Court House door in Harris County, Texas, with or without having possession of said property present at said sale, after having given notice of the time, place and terms of said sale, as the law now requires for sale of personal property under execution. And the proceeds arising from such sale shall be applied — first, to necessary and proper expense of such sale; then to the payment of said note then remaining unpaid, the balance, if any, to be paid to said Mortgagor or order.”

The jury in response to the Special Issues submitted by the Court, found both of the Appellants guilty of conversion, which was a proximate cause of the loss; that the boat had a reasonable cash market value of $1,000.00 at the time it was removed from the dock; that the highest reasonable cash market value of the boat between the time of the taking and the time of the destruction was $1,000.00; that each of the Appellants were actuated by malice in the taking of the boat and that Appellee should recover the sum of $1.00 from each of the Appellants as exemplary damages; that neither of the Appellants took the boat under the reasonable belief that they were exercising the right of possession accorded them by the terms of the note and chattel mortgage. The jury further found that Appellee Russell did not' pay Dr. Ross Phillips the sum of $190.00 in full settlement and discharge of the lien and chattel mortgage.

Appellants assail the judgment by the assignment of 19 Points of Error wherein they contend that the Trial Court was in error in failing to grant their Motion for Instructed Verdict and Motion for Judgment Notwithstanding the Verdict because there was no evidence to support the jury’s findings upon which the judgment is based, and because the judgment is against the great weight and preponderance of the evidence. Appellants further contend that the judgment is erroneous as a matter of law in that Appellee was allowed to recover for the cash market value of the boat rather than being restricted to a recovery of his equity of redemption in the mortgaged property.

The following excerpts taken from the cause of Lyon v. Wood (Tex.Civ.App.), 363 S.W.2d 179, adequately demonstrate why we are unable to agree with Appellants’ contention :

■ “ * * * By taking such position appellant postulates the performance of all conditions precedent contained in the mortgage contract so as to effectively accomplish a non-judicial foreclosure of the mortgage lien. However, while it is true appellant took possession of the mortgaged property peacefully, it is equally true that he did not do that which was also required of him in the mortgage contract, namely, sell the property and account for the proceeds. The taking alone is not sufficient to amount to a non-judicial foreclosure. The taking must be followed by the sale in accordance with the terms of the mortgage. The repossession of the property covered by the mortgage does not change the status of the parties as mortgagor and mortgagee. By taking possession of the property the seller protects his security. The seller is still the holder of the mortgage and his interest in the automobile is not increased. His repossession of the property gives him a right to go further and sell the same, applying the proceeds to the principal due, plus any charges or expenses incurred in repossession. The status of the parties does not change until the purchaser satisfies the debt at a public or private sale of the property involved.
“After repossession and prior to sale appellant assumed the added responsibility of a trustee of the property for the appellees’ interest therein. * * *
“Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 7-A, 'Ch. Ill, § 4727, pp. 72-73 announces the rule:
“ ‘This right of the mortgagee is subject, however, to the equity of redemption in the automobile, and if the mortgagee takes possession of the automobile under the chattel mortgage after default, he must either sell it according to the terms of the chattel mortgage or become liable to the chattel mortgagor for the value of the car to be applied on the indebtedness secured by the chattel mortgage. Exercise of dominion over a repossessed vehicle prior to purchase thereof in foreclosure proceedings is a conversion, * * *.’
“In the case of John E. Morriss [Co.] v. O’Neal, Tex.Civ.App., 109 S.W.2d 1156 the court said:
“ ‘It is well settled that a mortgagee may avail himself of the terms and provisions of a mortgage instrument, without being liable for a conversion. (Citing cases). In seizing and selling chattels under a power of sale, however, the mortgagee must not extend the authority given. In a sense he is the trustee for the mortgagor, and his duties are those of a trustee. As well stated in Block Motor Co. v. Melia, et al., (Tex. Civ.App.), 247 S.W. 666, “He cannot claim the property as his own and sell it for his own benefit, and then defend under the power of sale given in the mortgage. If he deals with the property as his own and sells it as his own, he is guilty of a conversion.” ’
“That a conversion may consist of the wrongful detention of chattels under an assertion of right inconsistent with the owner’s general dominion is supported in Alexander Trust Estate, et al., v. Lindsey Drug Co., Tex.Civ.App., 214 S.W.2d 475; Neyland v. Brammer, Tex.Civ.App., 73 S.W.2d 884; Crawford v. Thomason, 53 Tex.Civ.App. 561. 117 S.W. 181 and Parchman v. Parchman, Tex.Civ.App., 239 S.W.2d 902.”

Nor was Appellee required to make a tender prior to bringing a suit for conversion. The general rule is that where the Defendant has committed some act which constitutes conversion, a tender by the Mortgagor of a debt due the Mortgagee is not a condition precedent to the bringing of the action for conversion. This is true where it is no longer within the power of the Mortgagee to perform his part of the agreement. City National Bank in Wichita Falls v. Kiel (Tex.Civ.App.), 348 S.W.2d 260, citing 53 Amer.Jur. 879, Sec. 87.

Appellants having admitted that they took the boat, intending to keep same in satisfaction of the balance due upon the note, and retaining dominion over the property until after its destruction, without ever having offered same for sale in accordance with the terms of the chattel mortgage, amounted to an illegal conversion of the property. There is ample evidence in the record to support the judgment based upon conversion, and the judgment is not deemed to be against the great weight and preponderance of the evidence.

Appellants next contend that the judgment should be reversed because the Court failed to apply the proper measure of damages in that the Court allowed Appellee to recover for the full value of the boat, contending that the Court should have permitted a recovery only for Appellee’s equity of redemption, i. e. the difference between the cash market value of the boat and the amount owed by Appellee on the note and mortgage. Appellee counters this by contending that Appellants are not entitled to an offset because Appellants pleaded on a General Denial and did not plead the amount due as an offset.

The general rule in conversion cases is that the Plaintiff, who establishes his cause of action, is entitled to recover the value of the converted property at the time of the wrongful taking, together with the interest from that date. 17 Tex.Jur.2d 168, 169. However, in cases where a mortgagor seeks damages from the mortgagee for wrongful taking of the mortgaged property recovery is limited to the mortgagor’s equity in the property, that is, to compensate for the loss sustained less the debt owed the mortgagee. 10 Tex.Jur.2d 75; Wake-field v. Queisser (Tex.Civ.App.), 293 S.W-896; Commercial Credit Corporation v. Flores (Tex.Civ.App.), 345 S.W.2d 432.

Appellee does not specifically sue for a conversion of his equity of redemption,, nor does he allege any special ownership or in any way mention a mortgage. On the contrary, his pleadings allege general ownership.

As pointed out before, Appellants proceeded to trial pleading only a General Denial to the allegation of conversion, without asserting their special interest in the property.

Under these circumstances, the question arises as to whether or not the Appellants should be allowed to prove their special interest in the property based upon-a chattel mortgage. We think not. If they wished to show that, whilst the plaintiff was owner as to everyone else, he was not as to themselves, they should confess this general ownership and show in avoidance the circumstances under which they claim a special interest therein. Willis & Bro. v. Hudson, 63 Tex. 678; Keating Implement & Machine Co. v. Terre Haute Carriage & Buggy Co., 11 Tex.Civ.App. 216, 32 S.W. 556; Bassham v. Robertson (Tex.Civ.App.), 154 S.W. 1065; Rule 94, Texas Rules of Civil Procedure. The basic question of whether or not Appellants were then and there the owners of a valid outstanding chattel mortgage lien would require both pleading and proof of the validity thereof, as well as the amount due and owing thereon. Without such pleading, the assertion of a mortgage would not show special title in Appellants because they asserted no title in their pleadings, and any evidence introduced upon an issue not made by the pleadings is wholly irrelevant and is, in fact, no evidence. Keystone Pipe & Supply Co. v. Osborne (Tex.Civ.App.), 73 S.W.2d 120.

Under the provisions of Rule 47, Texas Rules of Civil Procedure, V.A.T.S., it is provided:

“A pleading which sets forth a claim for relief, whether an original petition, counterclaim, cross-claim, or third party claim, shall contain
“(a) a short statement of the cause of action sufficient to give fair notice of the claim involved, and
“(b) a demand for judgment for the relief to which the party deems himself entitled.
“Relief in the alternative or of several different types may be demanded.”

Appellants did not plead a “short statement” as a basis for either a “counter claim” or a “cross-claim” or setoff. There is no statement sufficient to give fair notice of their claim of an interest in the property nor the amount thereof, nor did they seek any relief. It cannot be said that the issue was tried by consent because Appellee not only filed a Motion In Limine to exclude the question of a mortgage lien, but also repeatedly objected thereto, and was assured by the Court that issue would hot be considered as having been tried by consent.

The Trial Court permitted the introduction of the mortgage and note into evidence, apparently upon the theory that it was admissible for the purpose of showing some justification for Appellants’ actions in repossessing the boat and also to negating Appellee’s allegation of malice in his claim for exemplary damages. Without pleadings, however, its admission in evidence affords Appellants no basis for affirmative relief. Shield Co. v. Cartwright, 142 Tex. 324, 177 S.W.2d 954, 957.

There being ample evidence in the record to support the jury’s finding of the value of the boat at the time it was converted, and there being no pleading which would support a setoff or any other type of affirmative relief on behalf of the Appellants, the Trial Court did not err in failing to submit Appellee’s requested issues on the subject, but properly based his judgment upon the verdict of the jury finding of the reasonable cash market value of the boat on the date of the conversion. Such finding is not considered to be against the overwhelming weight and preponderance of the evidence.

By other Points of Error, Appellants assert that the Trial Court erred in awarding exemplary damages because there was no evidence to support the verdict, and in the alternative that such finding is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. We think the facts set out hereinabove demonstrate that there was ample evidence in the record to support the jury’s finding that the conversion was accompanied by malice. Appellants admit that they took the boat intending to then claim it as their own, and did not make any effort to foreclose under the terms of the chattel mortgage although the boat was in their possession for some three and one-half months prior to its destruction by the hurricane. Upon a review of the entire record, we find ourselves unable to agree with Appellants that the finding of the jury relating to exemplary damages is contrary to the great weight and preponderance of the evidence.

Appellants present numerous other Points of Error in their Brief; however, none of the remaining Points, nor any of the other Points for that matter, comply with Rule 418, T.R.C.P. in that none of the Points are shown to be germane to any assignments of error in the Motion for a New Trial or the Motion Notwithstanding the Verdict. Despite the failure to follow the briefing rules, we have discussed what we consider to he the controlling Points, but defer a discussion of the remaining Points because they are not properly briefed. In our review of the record, however, each of the Points were considered and were thought to be without merit.

The judgment of the Trial Court is affirmed.


text:
    The STANDARD INSURANCE COMPANY, Appellant, v. Mrs. Charley THOMAS et al., Appellees.
    No. 73.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 22, 1964.

      Julietta Jarvis, Bryan & Patton, Houston, for appellant.
    Bill Allen, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellees.
   MOORE, Justice.

This suit was brought by Mrs. Charley Thomas and her minor son, Paul Thomas, under the provision of the Texas Workmen’s Compensation Act, against The Standard Insurance Company for death benefits under the Act on account of the death of Walter Clifton Thomas as a result of an injury alleged to have been sustained by him while working in the course of his employment for National Tank Company. Based upon the verdict of the jury, the Trial Court rendered judgment for Appellees, Charley Thomas and her- son, Paul Thomas, against Appellant, The Standard Insurance Company, for death benefits under the Act, payable in a lump sum, together with the sum of $500.00 for funeral benefits. From this judgment The Standard Insurance Company has appealed.

It was admitted by the Appellant in reply to Appellees’ Request for Admissions of Facts that deceased, Walter Clifton Thomas, sustained a cerebral stroke on April 20, 1962, while working in the course and scope of his employment for National Tank Company.

In response to the Special Issues submitted by the Court, the jury found (1) that deceased sustained a cerebral stroke on or about April 20, 1962; (2) that such cerebral stroke was an accidental injury; (2a) that such accidental injury occurred in Houston County, Texas; (3) that such injury was received in the course of his employment with National Tank Company; (4) that such injury was a producing cause of the death of the deceased; (5) that manifest hardship and injustice would result if compensation payments were not paid in a lump sum; and (6) that the death of the deceased was not solely caused by prior body and physical conditions.

The evidence shows that the deceased, Walter Clifton Thomas, prior to the time of his death, had for many years followed the trade of a boilermaker, and for a period of some three months prior to his death had been in the employment of National Tank Company engaged in constructing large steel storage tanks used for the purpose of storing oil. It was further shown that the place at which the tanks were being constructed was in a river bottom and that it was a hot and humid day with the temperature rising to 82 degrees. During the early afternoon of April 20, 1962, Mr. Thomas, together with other employees of the National Tank Company, was engaged in the erection of two 500-barrel sunk-bottom meal tanks. This work required manual installation of fourteen S' x 8' staves of twelve guage tank steel around the chime of the tank, each of which staves weighed between 160 and 180 pounds. The foreman, Mr. Beard, testified that he and Mr. Thomas had to lift and carry each stave abbut fdür to six feet and then had to lift it up añd place it in its correct position on the chime of the tank. This required that each stave be lifted from a flat position to an upright position, and then be carried' in an upright position. Mr. Beard, as well as two other fellow employees, testified that when they had lifted twelve of the fourteen staves and placed them in their proper place on the tank and were in the process of carrying the thirteenth stave to its proper position on the tank, Mr. Thomas appeared to have stumbled over a clod of dirt and fell to the ground; that he was unable to get up, and that thereafter he immediately appeared to be somewhat addled, was unable to talk and was in a semiconscious condition. He was immediately placed in an automobile and was carried to a hospital in Trinity, Texas. After a brief stay in the hospital in Trinity, he was transported by an ambulance to a community hospital in Houston where he remained until April 28, 1962, under the care of his family physician, Dr. Loren Rohr, who diagnosed his condition as a “left hemi-plegia” or a cerebral stroke resulting in paralysis of his left side, which condition persisted until his death on July 12, 1962.

Appellees produced evidence to the effect that prior to his cerebral stroke, Mr. Thomas was active in his work as a tank builder and was apparently in good physical condition, performing all his duties free from any apparent physical ailments. He was 52 years of age, six feet tall and weighed approximately 180 pounds, and was described as being a muscular man. Before his stroke, Mr. Thomas was described as a happy, easy-going person, not prone to worry.

Following his discharge from the hospital on April 28, he was confined to his bed at his home. A bed bar was constructed over his bed, by means of which he was able to pull himself up with his right hand and to occasionally get into a wheelchair. He continued to be paralyzed on his left side and his physical condition did not improve, but progressively grew worse. He became'depressed and despondent and continued to be until he finally died on July 12, 1962.

Both Dr. Rohr, family physician of the deceased, and Dr. James Greenwood, Appellant’s examining physician, agree that the deceased suffered a cerebral stroke, medically described as a “left hemiplegia” apparently as a result of some cerebral vascular accident or condition on the right side of his brain. Neither of the two doctors were able to definitely determine whether the lesion in the brain resulted from a hemorrhage or a blood clot. Dr. Greenwood, at the request of the insurance company, examined deceased only one time after he had been removed from the hospital to his home. He testified that he had requested Appellant to make arrangements for him to make further examinations of deceased but Appellant declined to do so.

Dr. Rohr testified that he found no bruise or contusion about the head and was unable to find anything in the medical history of the deceased which would account for the occurrence of such a condition. He testified that at that time, he found that Mr. Thomas had a suspicious coronary insufficiency which led him to believe that he had some arteriosclerosis of the coronary vessels. He testified that Mr. Thomas would be predisposed to such disease because of the fact that his cholesterol level was found to be above normal. He further testified that the paralysis could have been brought about by either a rupture of a blood vessel or by a blood clot causing the supply of the blood to be shut off, but without surgery he could not definitely determine which had occurred. In response to a hypothetical question propounded to Dr. Rohr by counsel for the Appellees inquiring as to whether the work in which deceased was engaged at the time of the stroke was, in his opinion, a producing cause, aggravating cause, or a precipitating cause of the stroke, the doctor replied:

“A. * * * While we cannot definitely state the exact nature of the lesion that caused Mr. Thomas’s stroke, there is no doubt in my mind that the lifting and straining that he was doing in the heat of the day was a precipitating factor of the onsetting symptons, ultimately resulting in his death.”

He further testified that the presence of arteriosclerosis would definitely cause Mr. Thomas to be susceptible to having a stroke on heavy lifting.

Dr. Greenwood, on the other hand, testified that he was of the opinion that the cause of the cerebral stroke was brought about by a long standing arteriosclerotic condition, or a hardening of the arteries, and that the stroke would have occurred as a natural result of such disease of the blood vessels without the intervention of anything else. He did recognize, however, that an aneurysm, or weakness of blood vessels, can be immediately precipitated by physical exertion and that a thrombosis, or clot, can occur as a result of exertion when coupled with arteriosclerosis. Upon the question of whether or not physical exertion was considered by him to be a contributing factor in causing a cerebral stroke, we quote the following questions propounded to Dr. Greenwood by Appel-lees’ counsel, together with his answers thereto :

“Q. Again, in fairness, you are not able to rule out in this particular man’s case, and having seen him one time, * * * you are not able to rule out the physical exertion that he was doing in that hot weather, as a precipitating cause of the condition that already existed; that is bringing it on and accelerating it and making the stroke occur at that particular time, are you ?
“A. It would have been a factor in precipitating, yes.
“* * *
“Q. * * * Can we agree that the, physical exertion that this man was subject to, at the time he had his initial stroke, was the precipitating cause of the stroke at that particular time, coupled with the condition of arteriosclerosis that pre-existed?
“A. I don’t think I can answer that, because I still don’t know how severe this exertion was for him. I mean lifting eighty pounds, his half of the 160, perhaps depending on which end was lower — a well muscular man that had been doing it off and on for a long period of time, I don’t think it is a true precipitating cause. I can’t deny it either.
“Q. You just can’t say one way or the other, is that right?
“A. If the thing is going to happen, then it’s a little more likely to happen during the exertion than it would be while he was asleep at night. We see them in both situations.”

In connection with the question of the cause of death, Appellant introduced in evidence the Death Certificate of deceased. The Certificate of Death was executed by Dr. William R. Masters, who was shown to be an associate of Dr. Rohr. Although the testimony shows that Dr. Masters did not treat the deceased, he occasionally accompanied Dr. Rohr on hospital visits when Dr. Rohr was treating him. The Certificate recites that the “immediate cause” of death was “coronary occlusion” due to arteriosclerosis. The Death Certificate was filled out and signed by Dr. Masters because Dr. Rohr was not immediately available.

Appellant urges by the first 16 Points of Error that there was no evidence, or at least insufficient evidence, to sustain the submission of the jury’s findings on Special Issues No. 2, 3 and 4, finding that deceased suffered an accidental injury while in the course of his employment and that such injury was the cause of death, and that therefore the Court erred in submitting the cause to the jury and in overruling Appellant’s Motion for Instructed Verdict and Motion, for Judgment Notwithstanding the Verdict, 'and further urging that the Court erred in entering judgment for the Appellees because there was no evidence, or at least insufficient evidence, to support the finding that death was not solely caused by the prior physical condition of deceased.

Under the evidence above detailed, we think it cannot be said, as a matter of law, that this record contains no evidence of probative force which would support the jury findings as above indicated. The evidence conclusively shows that immediately before suffering the cerebral stroke, Mr. Thomas was apparently in good physical condition in that he had been performing all of the duties required of him in lifting, carrying and placing the large, heavy metal staves on the tank. While assisting his foreman in carrying this heavy metal plate in an upright position, it is agreed by both medical witnesses that he suffered some type of lesion in his brain which immediately produced a cerebral stroke. These facts, when considered with the other compelling circumstances, together with the testimony of Dr. Rohr, positively stating that the lifting and straining that Mr. Thomas was doing in the heat of the day was a precipitating factor of the onsetting symptoms, which ultimately resulted in his death, amounts to evidence of sufficient probative force to sustain the finding that such injury was an accidental injury arising out of the employment and causing death. Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581.

It is true that there is no direct evidence as to the exact type of lesion in the brain. Although Dr. Greenwood was of the opinion that the stroke was but a natural result of the disease of arteriosclerosis, both he and Dr. Rohr were of the opinion that the stroke could have resulted from a ruptured blood vessel in the brain brought about by lifting and straining. Aside from any consideration of the effect of arteriosclerosis or the formation of a blood clot, we think this testimony would be sufficient, circumstantially if nothing else, to afford the jury the right to conclude that Mr. Thomas suffered a rupture to the blood vessel of his brain and thus suffered an accidental injury-

It is now well settled that a ruptured blood vessel in the brain which was either caused or contributed to by the exertion and strain of the work in which the employee is engaged in at the time he was stricken is an accidental injury within the purview of the Workmen’s Compensation Act and is compensable. Hurd v. Republic Underwriters (Tex.Civ.App.), 105 S.W.2d 428; Fidelity & Casualty Co. v. Van Arsdale (Tex.Civ.App.), 108 S.W. 2d 550; Traders & General Ins. Co. v. Rooth (Tex.Civ.App.), 268 S.W.2d 539; Consolidated Underwriters v. Dunn (Tex.Civ.App.), 155 S.W.2d 431.

Appellant argues, however, that since the Certificate of Death showed that death was not caused by the stroke, but was caused by a coronary occlusion due to arteriosclerosis, amounts to conclusive proof that death resulted from some cause other than the accidental injury, to-wit: heart failure. We overrule this contention. Although it be conceded that the Death Certificate is of some probative force, it cannot be considered as conclusive evidence of the cause of deajh, but is to be considered along with the other evidence upon the question. Thornell v. Missouri State Life Ins. Co. (Tex.Com.App.), 249 S.W. 203.

There is evidence in the record sufficient to support a finding that the lesion in the brain was the ultimate cause of death. On the other hand, even though it be conceded that the cause of death was a coronary occlusion caused by failure of the heart, there is evidence in the record which would support the conclusion that the lesion in the brain and the resulting-stroke caused thereby set in motion a chain of events which ultimately caused the coronary occlusion resulting in death. Both medical witnesses recognized that any physical exertion, as well as any mental anxiety brought about as a result of the stroke, would be calculated to adversely affect the functioning of the heart, especially in view of the presence of arteriosclerosis. The question of whether or not the previous accidental injury was the cause of death or whether or not the previous accidental injury caused the coronary occlusion, which in turn ultimately caused death, was a question of fact for the jury.

In determining the question of the existence of evidence of probative force to sustain the jury’s finding, we must consider only that evidence which would sustain the jury’s finding and disregard all other evidence. Jecker v. Western Alliance Insurance Company, Tex., 369 S.W.2d 776; Liberty Mutual Insurance Company v. Lee, Tex., 381 S.W.2d 172.

In Traders & General Ins. Co. v. Rooth, supra, the Court held:

“Compensation benefits can be awarded if the workman, as a result of job exertion, sustains hemorrhages, ruptures or heart attacks, nowithstand-ing the fact that predisposing factors contribute to the incapacity or death.
* * *
“A workman can recover compensation benefits if a job incident contributes to cause his incapacity. Texas Indemnity Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026; Travelers’ Ins. Co. v. Peters, Tex.Civ.App., 3 S.W. 2d 568—affirmed Tex.Com.App., 17 S.W.2d 457. In other words, a predisposing bodily infirmity will not preclude or reduce compensation benefits if the ultimate incapacity is contribu-torily caused by an accident arising out of the employment.”

In Texas Employers’ Ins. Ass’n v. Mc-Grady, Tex.Civ.App., 296 S.W. 920, writ dism., the court said:

“However, the mere fact that the person in whom the rupture occurred has at the time diseased arteries or high blood pressure is not conclusive proof that the injury is a result of a disease and not accidental. The weakened state of the arteries caused by the physical disorder, or the abnormal strain caused by the high blood pressure, is merely a condition which some exciting or producing cause may operate. If a rupture results from lifting a heavy weight by a healthy person, it is because the exertion is too great for one in that physical condition. The legal principle is the same if the rupture results from lifting a lighter weight by a person of less strength, whether the reduced strength is the result of natural or diseased conditions. Whatever the physical condition of the individual may be, if it is such that it requires some physical exertion or strain to cause the rupture the injury may properly be classed as an accidental one. * * * Nor should it be said that an injury from overexertion by one in a debilitated condition is not an accident simply because it required less violent exercise to produce the injury. Since we cannot fix any standard of condition, neither can we fix any standard of sufficiency of cause operating upon the condition. The legal principle is the same, whether the injury results from lifting weights, as a can of paint, or by some other form of physical exertion.” United States Fidelity and Guaranty Company v. Herzik (Tex.Civ.App.), 359 S.W.2d 914.

We have concluded the evidence supports the findings of the jury that Mr. Thomas’s death resulted from an accidental' personal injury sustained in the course of his employment, as well as their finding that his death was not solely caused by his prior physical condition. We are also of the opinion that the answers of the jury to Special Issues submitted herein are not so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Appellant’s Points 1 through 16 are therefore overruled.

By Points 17 through 21 Appellant contends that the judgment should be reversed because of the error of the Trial Court in failing to grant Appellant’s Motion -for Instructed Verdict, Motion for Judgment Notwithstanding the Verdict, or a new trial on the ground that there was either no evidence or insufficient evidence to show that the alleged injury occurred in Houston County, the county in which this suit was filed and tried.

Appellant requested a submission of a fact issue regarding the location of the alleged injury which the Trial Court submitted, and the jury found that the injury occurred in Houston County, Texas.

The witness Frazier, a fellow employee of Mr. Thomas, testified that tanks were being constructed on what was known as the Bruton farm. Witness Sallas testified that he was familiar with all of Houston County and that he was also familiar with the Bruton farm and that it was situated in Houston County. He further testified that he had actually been on the farm and had seen tanks there, although he was unable to identify same as being the tanks in question.

Appellant did not offer any evidence showing that the alleged injury occurred in any other county.

We deem the above and foregoing testimony to be evidence of sufficient or probative force to sustain the jury’s finding that the accidental injury occurred in Houston County, Texas. There being no evidence to the contrary, such finding cannot be said to be against the overwhelming weight' and preponderance of the evidence. Appellant’s Points 17 through 21 are overruled.

By Point 22 Appellant complains of the action of the Trial Court in overruling its Motion for Mistrial because Appellee, Mrs. Thomas, in her testimony testified that the company had offered to make a settlement. After testifying that the representative of the Appellant had never offered to give Mr. Thomas further hospitalization or perform further tests, she testified in response to a question from her counsel as follows:

“Q. After he told you he would take it up with his Company, did he ever give you a definite answer after that?
“A. No, sir. There was one time he came out after Dr. Greenwood had been out there and offered a settlement. We told him, my husband and I both told him, that we wanted my husband put in the hospital, and the medical part of it to be taken care of. We weren’t interested in talking about a settlement.”

. Counsel for Appellant objected and immediately made a Motion for Mistrial, but did not request the Court to instruct the jury not to consider the testimony.

Though we recognize the general rule that offers of settlement are riot admissible, we have concluded that the refusal of the Trial Court to declare a mistrial under the circumstances presented here do not present reversable error. Such testimony, being unresponsive, is not considered to be of such nature that the prejudicial effect thereof could not have been: cured by an instruction by the Court and counsel for Appellant waived his right of having the jury instructed not to consider same. Moreover, Dr. Greenwood had previously given similar unresponsive testimony by stating that the Appellant had declined to authorize him to make further tests on Mr. Thomas because they said “they would try to make a settlement and work the thing out so the man could go ahead and get the tests himself.” This testimony went into the record without objection; therefore, the testimony of Mrs. Thomas along the same line is thought to be cumulative, and in any event is not such as was reasonably calculated to cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

Point 23 complains of that portion of the judgment which allows a recovery on behalf of Appellee, Mrs. Thomas, for the sum of $500.00 for the expense of burial which had been paid by her.

Article 8306, Sec. 9, Vernon’s Ann. Tex.Civ.St., provides as follows:

“If the deceased employee leaves no legal beneficiaries, the association shall pay all expenses incident to his last sickness as a result of the injury, and in addition a funeral benefit not to exceed Five Hundred Dollars ($500).
“If any deceased employee leaves legal beneficiaries, but is buried at the expense of his employer or any other person, the expense of such burial, not to exceed Five Hundred Dollars ($500) shall be payable without discount for present payment in addition to the compensation due the beneficiary or beneficiaries of such deceased employee, subject to the approval of the Board. As amended Acts 1961,. 57th Leg., p. 1032, ch. 455, § 1.” Prior to the 1961 amendment, the second paragraph read:
• “Where any deceased employee leaves legal beneficiaries, but is buried at the expense of his employer or any other person, the expense of such burial, not to exceed $250.00, shall be payable out of the compensation due the beneficiary or beneficiaries of such deceased employee, subject to the approval of the Board.”

Appellant contends that Mrs. Thomas should not be entitled to recover the expense of burial because the statute does not provide such a remedy in her behalf, but only provides a remedy for recovery of funeral expenses on behalf of the employer or some other person. Appellee, on the other hand, contends that it was the intention of the Legislature in amending the statute to not only increase the amount allowable for funeral expenses, but also to establish funeral expenses as a separate form of benefits payable not only to the employer or any other person, but also payable to the beneficiary or beneficiaries. Appellees argue that the new language, “in addition to,” in lieu of the original language, “out of,” was meant to afford the beneficiaries some additional financial benefits and should not be construed as depriving a surviving wife or other beneficiary such benefits where she or he makes the payments. The question appears to be one of first impression.

As we construe the provisions of the second paragraph of the Act, we find nothing contained therein which could in any manner be construed as conferring upon the beneficiaries a right of recovery for funeral expenses. It appears to us that the Legislature intended to confer such right of recovery only on behalf of the employer or any other person who paid the funeral expenses and did not intend to confer a right of recovery upon the beneficiary or beneficiaries. If we be correct in this construction of the statute, then that portion of the judgment authorizing a recovery on behalf of one of the beneficiaries obviously cannot stand.

The judgment of the Trial Court granting Appellees a recovery for death benefits as provided for by the Act is in all things affirmed, but that portion of the judgment granting Appellee, Mrs. Thomas, a recovery for funeral and burial expense is hereby reversed and rendered in favor of Appellant, The Standard Insurance Company.

Affirmed in part and reversed and rendered in part.