author:
SHARPE, Justice.
      NYE, Justice SHARPE, Justice.

text:
    MATHIS EQUIPMENT COMPANY, Appellant, v. C. P. ROSSON, Jr., Appellee.
    No. 40.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 25, 1964.
    Rehearing Denied Jan. 14, 1965.
    Second Motion for Rehearing Denied Feb. 11, 1965.

      Luther Jones, Jr., Corpus Christi, Frederic Johnson, S inton, for appellant.

      John J. Pichinson, Corpus Christi, Wm. E. Nicholas, Joe C. Ternus, John H. Flinn, Sinton, for appellee.
   SHARPE, Justice.

This suit was brought by appellant, a corporation, to recover the purchase price of a cotton picking machine sold by it to appellee under a written contract.

The trial court rendered judgment that appellant take nothing, based 'upon a jury verdict consisting of answers to two special issues. Special issue number one found that the machine in question was not a new machine at the time of its delivery to appellee. Special issue number two found that the machine was not wholly worthless for the purpose of picking cotton.

Appellant asserts four points of error. Point one urges that appellant was entitled to judgment non obstante veredicto for the purchase price of said cotton picking machine based upon facts shown by undisputed evidence and the answer of the jury to special issue number two. Appellant’s points two, three and four are directed to the answer of the jury to special issue number one. Point two asserts that said answer is without support in the evidence. Point three asserts that such answer is so against the great weight and preponderance of the evidence as to be manifestly wrong. Point four asserts that the evidence is insufficient to support such finding.

We have concluded that appellant’s points one and four should be sustained. The facts conclusively proved and the finding of the jury on special issue number two entitles appellant to judgment for the purchase price of said cotton picking machine in the absence of any defense established by appellee which would authorize rescission or damages as an offset to the said purchase price. The answer of the jury to special issue number one is immaterial to the defense relied upon by appellee in this case,- and, in any event, the evidence is insufficient to support the same.

Appellee’s defense in this case is limited to alleged failure of consideration giving rise to rescission of the contract. He does-not claim fraud, accident or mistake; nor does he claim damages for breach of warranty as an offset to reduce the amount owing on the purchase price. Appellee particularly urges that there was a failure of consideration because he received something other and different from what he ordered in that the cotton picking machine was .not “new”, since the evidence established that it was manufactured in the month of June, 1961, some fourteen months prior to its delivery to him.

Appellee’s evidence shows that on August 3, 1962, he advised an agent of appellant by telephone that he desired to purchase a new Model 420 International Harvester Diesel, two-row, low-drum Cotton Picker. Appellant’s agent advised ap-pellee that it did not have a machine on hand meeting such description and that some three or four weeks would be required to obtain one from the factory; that appellant could probably get a high-drum picker of such model if appellee was willing to accept the same. Shortly thereafter, appellant advised appellee that a high-drum picker had been located in the Rio Grande Valley and appellee agreed to-buy it. Appellee also instructed appellant to install compression sheets thereon. The machine was delivered to appellee and demonstrated to him. on August 11, 1962,. prior to the time he signed the contract for same and a separate delivery report showing that he had received the machine,, which was described therein by model number and serial number, in satisfactory condition. Appellee requested and was granted an extension of time in which to pay for the machine on the ground that he-had not consummated the sale of cotton-which he had on hand and was trying to-sell at a higher price. Appellee reiterated' his promise to pay on several occasions.. After several days, the machine started'. ■causing difficulty and appellee then requested that a representative of the manufacturer visit him so that the machine •could be repaired and the warranty thereon extended. About fifty bales of cotton were picked with the machine until about August 26, 1962, after which the machine "was not used again. In September, 1962, •at appellee’s request, appellant took the machine to its place of business for repairs. Appellee testified that about the middle of October, 1962, he checked the serial number on the machine, thought it was old, •and then advised his foreman to tell appellant he didn’t want any part of it.

Appellee does not contend that he specifically ordered a 1962 model machine or one manufactured in the year 1962. While on the witness stand in this case, ap-pellee testified, in substance, that the year 1962 was not mentioned to the agent of •appellant when the machine was ordered •or thereafter, until he had accepted and used the same.

It is well settled in Texas that in the absence of fraud or an agreement allowing the property to be returned to the seller, rescission for breach of warranty can be availed of by the purchaser only where the identity of the article is involved and it proves to be something other than that which was purchased or if such article is wholly worthless for the purpose for which it was sold. Wright v. Davenport, 44 Tex. 164, 167 (1875); Dillard v. Clutter, 145 S.W.2d 632 (Tex.Civ.App., 1940, writ ref.); Bedner v. Dunigan Tool & Supply Company, 142 Tex. 663, 180 S.W. 2d 919 (1944) ; 77 C.J.S. Sales § 100, pages 796-797; 37A Tex.Jur., Sales § 352, page 731.

In this case appellee does not rely upon fraud or an agreement to return the property involved in the sale and the jury has found that the machine in question was not wholly worthless for the purpose of picking cotton. The evidence does not establish or raise an issue that appellee received something different from what he ordered by description, but, on the other hand, conclusively shows that the specific item of personal property described in the written contract and delivery report was demonstrated to and delivered to appellee prior to the time he executed the said instruments. Since it is established that a specifically identified article of personal property was appropriated to the contract by the parties and that appellee accepted same, the title to said machine passed to appellee and the contract became executed. Farmers’ Rice Milling Co. v. Standard Rice Co., 276 S.W. 904, 905 (Tex.Comm.App., 1925); Hill v. Childers, 268 S.W.2d 203, 205 (Tex.Civ.App., 1954, writ ref. n. r. e.). The requirement that the machine be new, whatever it was before, then became, at most, a warranty which guaranteed that the machine which had been appropriated to the contract by the parties possessed the quality of newness. El Paso & S. W. R. Co. v. Eichel & Weikel, 130 S.W. 922, 936 (Tex.Civ.App., 1910, writ ref.); Eastern Seed Co. v. Pyle, 191 S.W.2d 708 (Tex.Civ.App., 1945), affirmed 145 Tex. 385, 198 S.W.2d 562 (1946); 13 Tex.Jur.2d, Contracts, § 160, page 347, wherein it is stated:

“After the goods have been accepted, the buyer may then treat any breach of ‘condition’ concerning the quality of the goods as a breach of warranty only; he may not reject the goods and consider the contract repudiated.”

In this case, the appellee plead failure of consideration as an affirmative defense to the seller’s cause of action based upon a written contract, as is required by Rule 94, Texas Rules of Civil Procedure. However, appellee failed to establish either a total failure of consideration or the extent of a partial one, and he did not claim an offset for damages on account of breach of warranty. Under such circumstances, the seller was entitled to recover the entire purchase price because no defense was made out. 51 Tex.Jur.2d, Sales, § 357, pages 99-100; J. B. Colt Co. v. Reeves, 266 S.W. 564 (Tex.Civ.App., 1924, no writ history); Jameson v. Consolidated Oil Co., 284 S.W. 309 (Tex.Civ.App., 1926, no writ history); Allison Ranch Co. v. Angelo Auto Electric, 145 S.W.2d 645 (Tex.Civ. App., 1940, writ dism., w. o. j.)

It thus appears that even if supported by evidence the finding of the jury on special issue number one would avail appellee only if he had relied upon the same in connection with a claim for damages on account of breach of warranty, which he did not do. Such finding was, therefore, immaterial to the defense relied upon by appellee and the trial court should have disregarded the answer in connection with rendition of judgment.

Appellee failed to establish any defense which would authorize rescission of the contract in question and appellant’s motion for judgment non obstante veredicto should have been granted. Appellant’s point number one is sustained.

There is an additional reason why the finding on special issue number one should have been disregarded. It not only was immaterial in connection with rendir tion of judgment under the state of the record herein, but the evidence was not sufficient to support the jury answer to same.

The trial court in this case defined the term “new machine” as “a machine in condition as when first manufactured, not worn or defaced by use in any degree.” This definition is from the case of Maxwell v. Bastrop Manufacturing Co., 77 Tex. 233, 14 S.W. 35 (1890) where the court was considering the words “new and efficient” as applied to machinery, contained in an act of the legislature, and wherein the court said in part that “Many illustrations of the use of the word ‘new’ readily suggest themselves.” In the case of Mills County v. Brown County, 87 Tex. 475, 29 S.W. 650 (1895), our Supreme Court has also held that the word “new” is a relative term, and, in discussing the subject said:

“ * * * As was suggested in the argument, ‘new’ is a relative term. We have a striking illustration of this fact in the case of the Holy Scriptures. The canonical books which appeared upon the advent of the Christian era, though now nearly 20 centuries old, are known in group as the ‘New Testament,’ in contradistinction to the former canonical books, which are known together as the ‘Old Testament.’ ”

The definition of “new machine” submitted to the jury in this case was not objected to and may be considered to be correct for the purpose of this case. However, the word “new” may have different meanings, depending upon various factors such as the nature and character of the article involved and the context of the fact situation under consideration. The cases hereinbefore cited are illustrative of this statement along with others which will be briefly noted.

In the case of Baum v. Segal (DC N.J., 1950) 89 F.Supp. 716, the purchaser sued for damages because certain inner tubes ordered by him were not new but were patched or reconditioned. The court found that in the tire and tube business when inner tubes are ordered the buyer normally specified firsts or seconds, which was not done in that instance. Although the testimony showed that the major portion of the tubes delivered to the purchaser had the factory brand erased and some had been patched to cover factory defects, the court, nevertheless, held that the purchaser got new tubes which he had contracted for but not first line and quality.

In the case of Ajax Petroleum Products Company v. Blake, 126 N.E.2d 926 (Court of Appeals of Ohio, 1953) the court considered the meaning of the word “new” in connection with a piece of road building equipment which had been manufactured some four years prior to its sale. The purchaser brought suit for breach of express warranty and damages resulting therefrom on the ground that the machinery was in fact not “new”. The defendant-seller, testified that he had engaged in the road equipment business for many years and in such business the term “new” is used to designate that the equipment involved has not been previously used. The trial court adopted this test and rejected the opinion testimony of the president of the corporation-purchaser of said equipment that the word “new” meant newly made or of recent manufacture. The trial judge instructed a verdict and entered judgment for the defendant-seller, based upon a finding that there was no breach of warranty. Such holding was affirmed on appeal. The court quoted from 66 C.J.S., giving a definition of the word “new” and held as follows:

“ ‘New. A relative term defined as meaning not yet used or worn; now first used for some purpose; recently made; still unimpaired by use. In its ordinary acceptation, the opposite of the term “old”.’
' “It will be noted that under this definition the word may have a meaning contended by each of the parties, but when it has a special meaning in a certain business it must be interpreted as ordinarily used in that business. It is a matter of common knowledge that the use test is used in the automobile trade in determining whether or not an automobile is new. In other situations the use test cannot be employed for the reason that use consumes a commodity, for example, food products such as corn, wheat, potatoes, oranges, etc. In such cases the term must mean the opposite of ‘old’.”

We believe that the use test, discussed by the Court of Appeals of Ohio in the case of Ajax Petroleum Products Company v. Blake, supra, is a proper one to be applied in this case. The fact that a cotton picking machine sold in 1962 was manufactured in 1961 would not prevent it from being a new machine so long as it had not been used.

In this case the evidence shows without dispute that the machine in question was manufactured June 16, 1961; that it was shipped to Pharr, Texas, on June 22, 1961; that it was there stored in a designated International Harvester warehouse, after delivery on June 28, 1961; that it remained there until delivered to employees of Mathis Equipment Company, appellant herein, on August 8, 1962; and that the machine had never been sold or used prior to being so delivered. The evidence further established that new cotton picking machines are not sold under designation of a certain year, but, on the other hand, are sold under a specific model number.

In the final analysis, the evidence in this case shows that appellee decided not to pay for said machine because he discovered, more than two months after he accepted the machine and had picked fifty bales of cotton with it, that it had been manufactured in the month of June, 1961.

As we have heretofore pointed out, the trial court in this case defined the term “new machine” as meaning “a machine in condition as when first manufactured, not worn or defaced by use in any degree.” The evidence, considered in its most favorable light to appellee, was not sufficient to establish by a preponderance thereof that the machine was not new under such definition. There was no direct testimony to the effect that the machine, at the time of its delivery to appellee, was not in the same condition as it was when first manufactured, nor was there direct testimony that the machine had been used prior to its delivery to appellee. Appellee testified that after several days of operation there was discovered a break in the cam track of the machine which in his opinion, was an “old break”. This is claimed by appellee to support an inference that the machine had been used prior to its delivery to him. This evidence amounts to no more than a bare conclusion which does not constitute evidence of probative force to support a finding that the machine had been used. Neither is the remaining testimony, direct or circumstantial, particularly that to the effect that some trouble was experienced with certain parts of the machine within a short period of time after appellee used it to pick cotton, sufficient to support a finding of non-newness.

The fact that the machine herein involved was manufactured fourteen months before the sale to appellee, standing alone or considered with the other testimony in this case, is not sufficient to establish that the machine was not new. This is- particularly true in the face of direct- testimony establishing the date of manufacture, the place where such machine was stored before being delivered to appellee and positive direct testimony that it had not been used theretofore. The evidence is insufficient to support the answer of the jury in response to special issue number one, and appellant’s point number four is sustained.

The record herein reflects that appellee elected to rely upon failure of consideration and rescission instead of a claim for damages based upon breach of warranty. Both appellant and appellee made trial amendments to their pleadirigs after appellant had rested its direct case and before appellee offered testimony in his defense. Appellee was in the best possible position at that stage of the trial to determine what his defenses would be to the prima facie case which had then been established by appellant; and it is apparent that the election not to seek damages for breach of warranty was deliberately made by appellee.

The evidence herein established appellant’s prima facie right of recovery which could have been defeated only if appellee brought his defense within some recognized rule authorizing rescission of the contract or authorizing damages giving rise to a reduction of the amount owing on same. Appellee failed to establish any such defenses and appellant’s amended motion for judgment non obstante veredicto should have been granted and judgment entered allowing appellant to recover on the contract of sale.

On oral argument of this case counsel for all parties advised this court that following trial in the lower court the cotton picking machine involved had been sold for the sum of $14,400.00, pursuant to agreement of the parties. The record herein does not reflect such agreement or sale so that we can act upon it in connection with rendition of judgment. However, counsel have assured us that they are in agreement that proper credit will be given in the event judgment is rendered for appellant..

The judgment of the trial court is reversed and here rendered in favor of appellant for recovery of the purchase price of said machine in the amount of $16,-400.00, together with interest from October IS, 1962.

NYE, Justice

(dissenting).

C. P. Rosson, Jr., appellee, hereinafter called Rosson, ordered a new cotton picking machine from Mathis Equipment Company, hereinafter called Mathis. Mathis brought suit for the purchase price and Rosson defended on the basis that the machine delivered was not a new machine.

Farmer Rosson was a substantial farmer, farming over eight hundred acres of land near Taft, Texas, where he lived. He owned a cotton gin and grain elevator. He had purchased a new cotton picking machine in 1961 from Mathis which proved to be satisfactory. In 1962, Rosson had four hundred bales of cotton that had to be picked from his farms. After the cotton season was under way Rosson decided he needed another new machine so on or about August 3, 1962, he phoned Mathis and ordered a new International Harvester cotton picking machine. On Saturday, August 11th, Mathis delivered the machine. That day, or a day or two later, Rosson signed a “Retail Order for New Farm Equipment” and a “Delivery Report”. The “Retail Order for New Farm Equipment” which was the contract in question was never executed by Mathis although the contract stated “this order is subject to the written acceptance of the dealer to which it is addressed * * The machine was never paid for by Rosson although the contract called for a cash sale. The written contract began: “I (Rosson) hereby order from you, subject to all terms, conditions and agreements contained herein * * One of the terms, conditions or agreements contained in the contract was “ * * * After delivery all of the equipment shall be held and used at the Purchaser’s risk and expense, but title with right of repossession for default is reserved to the Seller until the full purchase price has been paid in cash.” (Emphasis supplied.)

The machine had a series of breakdowns during the approximate two weeks that Rosson used the machine. At least one was a major breakdown which came three or four days after he received the machine. These breakdowns included a broken cam shaft, overheating of the engine to the point of boiling water, a replaced heat gauge and sending unit, a “knock in the machine”, overheating of rear drum caused by a bend bar or alignment and excessive wear on cam rollers and bushing to the extent of steel shavings being present. This last breakdown was so serious that a Mathis mechanic stated that the machine would have to be greased every two hours in order to finish the cotton season or the machine would have to be hauled in and torn apart to find out all the trouble. After Rosson had used the machine under these conditions, and after the mechanic had told him what he would have to do to finish the season, Rosson said that he didn’t want to fool with it and he told the Mathis mechanic to take it in. The machine was never used again by Rosson.

Beginning with the first breakdown and continuing for some two months until the latter part of October, 1962, Mathis and Rosson carried on a series of negotiations. Mathis tried to get Rosson to pay for the machine. Rosson kept giving Mathis excuses for not paying. Rosson finally stated he would not accept the machine unless the written warranty covering the entire machine, as contained in the contract, was extended to cover the 1963 cotton season and that the machine should be repainted and polished. Mathis tried to meet the offer but was unable to get International Harvester Company, their manufacturer, to extend the warranty except on a few specific parts. They agreed to paint and polish the machine. Sometime during the negotiations Rosson discovered that the machine was a 1961 model, some fourteen months old and finally refused to accept and pay for the machine unless the written warranty was extended. Negotiations broke down and Mathis picked up the machine and took it back to their place of business.

Mathis then brought suit in the nature of a sworn account, amending their pleading during the course of the trial, alleging that Rosson ordered a certain model cotton picking machine; that he executed such purchase order and agreed to pay $16,-400.00 cash for the machine; that Mathis delivered such machine and Rosson accepted it; and that Mathis is therefore entitled to recover the purchase price plus interest. Rosson filed an answer in the nature of a general and sworn denial ; plead that he ordered a new machine; that he understood and believed that the machine delivered was a new 1962 model although the same was a 1961 model; that the $16,400.00 purchase price was based on the condition that the machine was a 1962 International Harvester cotton picker; that the contract was never fully consummated; that the law implies a warranty that the machine is fit for the purpose for which it is sold; that the machine was not as it was represented to be by Mathis; that there was a total failure of consideration ; and finally praying that Mathis take nothing by its suit.

This case was tried on several theories. There was no objection urged by either side attempting to limit or restrict the various theories of the plaintiff’s case or the defenses of Rosson. Only two issues were submitted to the jury. No kindred or other issues were requested by either party and no objections were made of the issues or charge that was submitted to the jury. The record itself discloses the actual theory upon which the law suit was tried, and it is best expressed in the questions and answers elicited by the attorney for appellant Mathis, on cross examination of Rosson: “Q. Is it your position in this law suit, basically, that you ordered a new International Harvester, Diesel Hi Drum 2-Row Cotton Picker, and that you did not receive that which you ordered; namely, such a machine? A. That is correct. Q. But instead, you received something different from what you ordered? A. I received an old machine. I didn’t get a new ■machine. Q.' All right. And your position, then, before this Jury and this Judge, is that you got an old machine ? A. That’s correct. Q. And that’s why you are taking the position that you should not have to pay for the machine? A. That’s right. Q. And if the machine were a new machine, then, you would not take that position? A. That’s correct.” (Emphasis supplied)

The case was given to the jury to answer two issues : “SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that the machine in question was a new machine at the time of its delivery to defendant?” The jury answered: “No”. “By the term ‘new machine’ is meant a machine' in condition as when first manufactured, not worn or defaced by use in any degree.” In the second issue the jury found that the machine was not wholly worthless for the purpose of picking cotton.

Mathis filed a motion for judgment non obstante veredicto and a motion for new trial. The trial judge heard all the evidence and argument of counsel, overruled both of Mathis’ motions and entered judgment for Rosson that plaintiff take nothing. The trial court found in effect that special issue number one was the controlling issue and that there was sufficient evidence to support the jury’s findings. I agree. The judgment is correct based on the theory the case was tried and the evidence received.

Appellant Mathis predicates its appeal on the contention that there is insufficient evidence to support the findings of the jury in respect to special issue number one, or in the alternative, that special issue number one should be disregarded because the evidence conclusively established in the trial together with the finding of the jury in answer to special issue number two, establishes as a matter of law, a completed sale.

I would like to review the sufficiency of the evidence, first. The trial judge heard all the evidence, and observed the witnesses, overruled' appellant’s motions for new trial and judgment non obstante vere-dicto. The trial judge defined “new machine” as being “ * * * a machine in the condition it was when first manufactured and not worn or defaced by use in any degree.” (Emphasis supplied) The reviewing court must consider the evidence in its entirety to determine whether the evidence is strong enough factually to support the jury’s verdict. It is the province of the jury to determine questions of fact hut it is the power of the trial judge and the Court of Civil Appeals to set aside the jury’s findings and award a new trial. If the evidence shows conflict upon any material issue the Court of Civil Appeals can sustain the verdict and affirm the judgment; or if in their opinion the verdict was against such a preponderance of the evidence as to justify such action it can set aside and remand a case for new trial. If the Court of Civil Appeals reverses and renders a cause, on the ground that the verdict was unsupported by the evidence, this becomes a law question in which the reviewing court may reverse, on the facts only, when ordinary minds can arrive at no other conclusion from the evidence. See 30 T.L.R. 803. The rule is settled in this state that the reviewing court will not disturb the findings of the jury on conflicting evidence where there is some evidence to support their verdict, unless the verdict is so overwhelmingly against it as to shock the conscience or show clearly that the conclusion was wrong or was the result of passion, prejudice or improper motive. I believe the evidence is sufficient to support the jury’s findings, that the machine was not new.

It is undisputed that the machine in question was fourteen months old; that it had been stored in a lean-to shed, open on three sides and exposed to the elements for over a year; and that during that year the machine had never been serviced. The appellant in effect, admits that the machine was not in the condition as when first manufactured, and that it was defaced or worn, by admitting that the machine needed to be repainted, at least partially. The appellee Rosson who was very familiar with cotton picking machines and who had purchased a new machine one year before, testified positively that it was an “old machine” and that it was “not a new machine”. This alone would be a conflict in the testimony from which the jury should decide. Under cross examination by Mathis’ attorney, Rosson testified: “Q. Now, when that happened did that sort of crystallize in your mind the thought, ‘This must be a used machine’? A. Well, the first time that I got the opinion or the idea it might be a used machine was when the boy that I had running the machine came in and asked me if it was a new machine, and I said ‘Yes, I guess it is. I bought one from them fellows last year and it was a new one’. And he said, ‘Well, I don’t know, it doesn’t look like a new machine to me’.”

Mr. Rosson, testifying about the cam track, which by reasonable deduction should not have had an old break if the machine was new, said: “The Cam track is made out of cast, and the new break was bright and the old break was dull, and it was a new break leading off from the old break. Q. In your opinion, therefore, was the break of this Cam track partially an old break? A. It was.”

It was undisputed that Rosson had constant trouble with the machine. It would be logical for the jury to consider: that these breakdowns were unusual for a new machine; that a supposedly new $16,400.00 cotton picking machine had the general appearance of an old or used machine; that the machine had defective or worn parts; and that the machine ran so hot that it boiled water out of the radiator.

Rosson stated that he never had a cotton picker that required lubrication every two hours in order to keep it running. Yet Mathis’ mechanic told Rosson that the machine would have to be lubricated such in order to finish the cotton picking season. The printed warranty in the purchase order agreement stated that the obligation of the company under the warranty was limited to a period of “six months after first used by the original purchaser or 1500 hours of use, whichever occurred first”. This makes the age of the machine material, or the warranty would not have been limited to six months’ time from when it was first used. If time or age of the machine was not material the warranty would have stated that it was to be extended for a period of 1500 hours of use. In this connection concerning the materiality of the age of the machine, Mr. West, a mechanic all his life and superintendent of the gin and grain elevator, was questioned: “Q. If you leave a piston-type engine, such as the one which operates a cotton picker of that type, sitting up for a period, say, of twelve or fourteen months without any maintenance, do you know what the effects would be on the engine ? A. Well, it could freeze up, but the motor was running as far as that’s concerned. But I do know it’s not good on any kind of an engine to sit it up without running it periodically.” West further testified that International •Harvester’s representative and Murff, General Manager from Mathis, said that they were going to have to take the machine over to the shop and tear into it to find what was wrong with it.

I believe, although there was conflicting testimony concerning the condition of the machine, the jury was warranted in finding that the machine was not in the condition as when first manufactured; that it was defaced or worn by use in some degree. Appellate courts cannot substitute their judgment for that of jury upon disputed fact issues. Heckathorn v. Tate, 355 S.W.2d 845 (Tex.Civ.App.1962). Where jury and trial judge under conflicting evidence, resolve controlling issues of fact in plaintiff’s favor, on defendant’s appeal findings of the trial and jury are conclusive insofar as facts found affect the case irrespective of whether the Court of Civil Appeals would have decided the issue in the same manner. Texas City Terminal Ry. Co. v. McLemore, 225 S.W.2d 1007 (Tex.Civ.App.1949, wr. ref. n. r. e.) If there is any evidence to support findings in the verdict they are usually regarded as conclusive on the appellate court, especially where the verdict has been approved by the trial judge. Woodard v. Tatum, 277 S.W.2d 943 (Tex.Civ.App.1955). Whether or not we can say or find that a machine which begins to deteriorate the instant it is finally and completely manufactured, is, as a matter of law, a new machine and is the same as when first manufactured when faced with a direct evidence as set forth herein invades the province of the jury.

The parties without complaint imposed on the jury the duty to find from the preponderance of the evidence whether the machine in question was new or not. Was this issue submitted as a condition of sale, a misrepresentation or a breach of contract ? The trial court and the parties must have rightly thought that this issue was material, or it would not have been submitted or objections would have been made. The trial court impliedly found, in support of its judgment, that such issue as found by the jury was the ultimate and controlling issue in this case. Appellant says that we must ignore special issue number one; that the finding of the jury in answer to special issue number two (that the machine was not wholly worthless for the purpose of picking cotton) establishes as a matter of law a completed sale. There was no issue as to the intent of the parties. The machine was never paid for. The purchase order was never signed by Mathis. Negotiations continued after delivery of the machine and there was no issue submitted as to whether or not Rosson accepted the machine after he knew the machine was not new. In fact, the record discloses that after Rosson discovered that the machine was some fourteen months old he rejected it. See Freeman v. Davis, 363 S.W.2d 952 (Tex.Civ.App.1962, wr. ref. n. r. e.). The contract provided for a cash sales price of $16,400.00 and it set out that “if cash payment with order is made by check, cashing or depositing the same shall not be considered as acceptance of this order.” The contract provided further that title is reserved in the seller until the purchase price is paid. Mathis never intended to part company with the title to this machine until it was fully paid for. There was no evidence in the record prior to the rejection of the offer by Rosson that Mathis parted with title to the machine upon its delivery to Rosson. No bill of sale was executed. No certificate of title was delivered and no chattel mortgage or notes were prepared.

A cash sale is one in which the contract calls for payment of the price in cash when the contract is made or the goods are delivered. Until payment is made or waived a contract for cash sale remains executory and title does not pass even though the goods are delivered. Victor Safe & Lock Co. v. Texas State Trust Co., 101 Tex. 94, 104 S.W. 1040 (1907), and Continental Bank & Trust Co. v. Hartman, 129 S.W. 179 (Tex.Civ.App.1910) (See 37A Tex.Jur. § 124, p. 280). In 37A Tex.Jur § 195, Sales, the author says:

“When the contract of sale is that the goods sold shall be paid for with cash, or notes executed by the vendee or a third person, the sale is on condition that the payment be made, and, that until this is done, the title to the goods remain in the vendor, notwithstanding they may have come into possession of the vendee, unless it appears they were delivered to the purchaser with intent to waive the condition of payment. This rule is controlling and is based upon the view that where by their contract, the parties have either expressly or impliedly made payment a condition precedent to the passage of title, delivery is not consummation of the transaction, and that the sale remains executory until the agreed payment is actually made.”

As a general rule, title to property does not pass as long as any condition precedent in accordance with the terms of any agreement remains to be performed. Until such act or condition is performed or waived, the property does not pass. 77 C.J.S. Sales § 250; Deahl v. Thomas, 224 S.W.2d 293 (Tex.Civ.App.1949, wr.ref. n. r. e.)

There was no indication that Mathis ever waived the condition as to the payment of the machine in order to pass title. Until this condition be met or waived, there could never be a completed sale.

There was considerable evidence that the sale was never completed by the continued negotiations between the parties after the machine was delivered. The machine broke down three days after delivery and there was a series of breakdowns which continued for two weeks. During this time Mathis was trying to get Rosson to accept the machine. Assuming, without deciding, that a question of fact was raised as to whether or not Rosson accepted the machine or the parties intended to re-negotiate the original contract, and such issues were not submitted to the jury or requested, should it not be regarded that the trial court found in favor of the appellee? Rule 279, Texas Rules of Civil Procedure; Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449 (1959).

The appellant Mathis did not request the trial court to file any written findings on any omitted kindred issues to special issue number two, that the machine was not wholly worthless for the purpose of picking cotton, before the judgment was rendered. If a ground of recovery is wholly ignored or neglected and no issue is submitted or requested thereon, it will be held to have been waived and no recovery can be based thereon. If however, the grounds of defense consist of more than one element and the court submits some of the elements but omits others and there is no objection to the failure to submit them, the party will be placed in the position of having agreed to have waived a jury trial on the unsubmitted elements and it will be presumed that the trial court found on such unsubmitted elements in such manner as to support the judgment. Therefore, all omitted kindred issues should be deemed as found by the court in such manner as to support the judgment. Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940) ; Rule 270, T.R.C.P.; 4 Tex.Jur.2d § 810, p. 342; 20 T.L.R. 38; 29 T.L.R. 537 and cases cited therein. Dee v. Parish, supra.

Some of the evidence of the subsequent negotiations was as follows: Mr. Murff, General Manager of Mathis, testified concerning a conversation between the company representative, Mr. Evans (Zone Manager for International Harvester), Mr. Rosson and himself. Mr. Murff: “A. * * * going back to his gin office (Ros-son’s), we sat down and Mr. Evans wanted me to tell him about what a complete paint job would cost. I told him that it would run about one hundred and eighty dollars on a cotton picker of that nature. Q. Now, Mr. Rosson was present while this— he was present — . A. He was present. Q. Go ahead. A. ■ — and Mr. Rosson says, T don’t feel like Mathis Equipment Company should have to stand the cost of this paint job; I feel like International Harvester should.’ And Mr. Evans said that he would stand a third, at the time, and I said that I would stand another third if Mr. Rosson would stand a third, and we would completely paint the machine if that would make him happy. Q. What was the reaction of Mr. Rosson to that suggestion? A. Mr. Rosson didn’t agree with that, sir. He thought that International should stand the whole thing.” Cross examination of Mr. Rosson: “Q. * * * Yes, but I forgot to ask you one thing about it. Wasn’t it proposed in that conversation that Murff (Mathis) would pay a third of the painting, and that the company (International Harvester) would pay a third, and that they wanted you (Rosson) to pay a third, and you said nothing doing, that you didn’t feel that you ought to share any of the expense of its being painted? A. I told them the only way I would keep the machine at all was that if they would improve the appearance of it, repair it and give me a warranty on the machine, not specific parts. Q. And was there a conversation like I indicated where — . A. Yes, they wanted me to pay for part of cleaning * * * supposedly a new machine — . Q. And you turned that down ? A. I did.” (Emphasis supplied)

Cross examination of Mr. Jouffray (Sales Manager of Mathis): “Q. Now, Mr. Jouffray, isn’t it a fact that in these numerous conversations and conferences and everything else that you had, that it was Mr. Rosson’s attitude that T don’t want to accept that machine because all of the difficulty I had with it, but if you will get me a direct guarantee from International Harvester on the machine itself, and on its parts, that, then, I will accept the machine’ ? That was his attitude, wasn’t it? A. Actually, I had only one conversation with Mr. Rosson about getting a company representative down to talk to him about the machine. The rest of the conversations were between he and Mr. Murff.” Further questioning of Mr. Jouffray concerning certain written letters to Rosson about what the company would do, Mr. Jouffray answered : “These were letters written to substantiate agreements arrived between Mr. Murff and the company representative and Mr. Rosson. Q. All right. In other words, these were letters to substantiate, as you say, agreements that were arrived at subsequent to the delivery of the machine-, that’s correct, is it not? A. After delivery of the machine, yes sir.” (Emphasis supplied)

On cross-examination, Mr. R. N. West, superintendent of Rosson’s gin and elevator, testified as follows: “Q. Now, tell the jury what you told Mr. Murff (General Manager of Mathis) — your best memory. A. Well, let’s see, I told him the guarantee that we got from the company — well, actually from Mathis Equipment Company, the letter was, that it wasn’t the guarantee he wanted. He (Rosson) wanted a guarantee on the whole machine for another year, and he wasn’t going to take it. That’s what I told him.”

On cross examination of Mr. Rosson concerning the deal: “Q. Well, isn’t it a fact that the deal you had with Murff was cash on delivery? A. All right. If I’d a payed him in cash for it that afternoon, I would be up here suing him instead of y’all suing me. That’s the only difference.”

Under the general rules covering the right of rescission and cancellation, a buyer may rescind a sales contract that was entered into through a mutual mistake of fact as well as under the theory that he received nothing of value. Edwards v. Trinity & B. V. Ry. Co., 54 Tex.Civ.App., 334, 118 S.W. 572 (1909 Wr. Ref.). Quoting from 37A Tex.Jur. § 310. “In the event that the seller breaches his sales contract by failing or refusing to perform a material part of it, the buyer may consider the transaction at an end and refuse to proceed with performance of his own part. Thus when the seller has delivered goods that do not correspond to the contract specifications in respect of kind, quality, quantity or other material matter, the buyer is under no obligation to accept them; he may reject them in toto and refuse to pay for them. * * * ” Thus where a seller delivers a machine that differs materially from the one ordered, and also fails to perform according to the warranty there is both a breach of contract and a breach of warranty. See St. Mary’s Oil Engine Co. v. Alien-Morrow Co., 20 S.W.2d 266 (Tex.Civ.App.1929). This could account for the two issues submitted by the court to the jury. A buyer to avail himself of his right of rescission of the sales contract must proceed with due promptness to give notice to the seller that the contract is being rescinded and to return or offer to return to the seller all of the goods that have been received. 37A Tex.Jur. § 312, p. 643. Ros-son notified Mathis within two weeks after the machine broke that he did not wish to keep the machine. He rejected the machine in toto within two months after it was delivered. There was no kindred issue submitted as to the promptness of the buyer’s duty to give notice to the seller and I would therefore uphold the implied findings of the trial court that such notice was sufficient.

The cases cited by the majority can be distinguished on the facts. In the cases cited in their opinion, title passed, the contract in question was completed, and the cases were decided on the theory of a breach of warranty as to the degree of fitness of the article or quality or agreement to rescind a fully completed sale. In this case Rosson did not receive that which he ordered, namely, a new machine. A new 1962 machine, not worn or defaced, was as material to Farmer Rosson as the type of machine described, or as material as any other aspect of the contract. The jury found that Rosson did not receive such a machine. When a vendor sells an article by a particular description it is a condition precedent to his right of action of the thing which he offers to deliver or has delivered, that it should answer the description. If this condition be not performed, the purchaser is entitled to reject the article, or if he has paid for it, he may recover the price. Markham Warehouse & Elevator Co. v. Plotner & Stoddard, 140 S.W. 356. (Tex.Civ.App.1911). Here plaintiff brought suit to recover the contract price of five thousand pounds of twine amounting to $550. The evidence established that a certain brand of twine was delivered to the defendant by the plaintiff and that it was not of the grade and quality covered by the contract. The twine was received by the defendant under the belief that it was what they had ordered. As soon as it was discovered by the defendant that the twine was not of the grade and quality ordered by them they refused to accept it and notified the plaintiff that they would hold it subject to his orders. The court held that seller had bound itself to deliver a satisfactory type of twine and the delivery of that kind of twine was a condition precedent to the buyer’s liability. In the case of Dalton Adding Mach. Sales Co. v. Valley Motor Co., Inc., 299 S.W. 928 (Tex.Civ.App.1927) the court states: “It is a well-settled rule of the law of sales that a buyer cannot be compelled to accept and pay for something which he has not agreed to buy. * * * If the thing tendered be not what he agreed to buy, he may reject it, even though it is like the thing he bought.” In the case of Moore v. Hendricks, 290 S.W.2d 758, (Tex.Civ.App.1956) the court quotes out of 77 C.J.S. Sales § 183, p. 920, as follows: “There must be a substantial compliance with the agreement of the parties as to the quality or condition of the goods sold, and if there is a material departure from the requirement of the contract the buyer is not bound to accept the goods.”

I would affirm the trial court.

ON APPELLEE’S MOTION FOR REHEARING

SHARPE, Justice.

In the original opinion herein we held that the judgment of the trial court should be reversed and here rendered in favor of appellant (Mathis) for recovery of the price of the cotton picking machine purchased by appellee (Rosson) from appellant. We pointed out that appellant’s right of recovery under the written contract of sale could not be defeated by appellee herein because he did not establish a defense which authorized rescission; neither did he establish a defense based upon partial failure of consideration which would authorize an award of damages giving rise to a reduction of the amount owing to appellant. In addition to the authorities cited in the original opinion, we find that there are others which support our conclusions and we adhere to our original disposition of the case.

Appellee’s motion for rehearing is based upon his original contentions as well as some of the matters contained in the dissenting opinion which are presented herein for the first time. Two of such new matters are: (1) the contention that there was no written acceptance of the contract by Mathis, and (2) the contention that the language of the contract prevented title from passing to the seller in the absence of the cash payment being made. Neither of these matters were relied upon by appellee in the brief or on oral argument of this case.

As to the first of such matters, the evidence established as a matter of law that there was a written acceptance of the contract by Mathis. Two instruments (each consisting of one printed page) were involved, to-wit, an order for the machine and a delivery report. Rosson signed both instruments and Mathis signed the delivery report (which fully described the equipment covered by the order) after the machine had been delivered to Rosson. There was obviously only one transaction, and Mathis, by signing the delivery report, evidenced its written acceptance of the contract resulting from such single transaction. Furthermore, the evidence otherwise conclusively shows acceptance of the contract by Mathis, evidenced by delivering the machine to Rosson, relinquishing control over it, receiving the written order signed by Rosson as well as the delivery report signed by him and Mathis, demanding payment, and granting indulgence as to time of payment. Mathis consistently took the position that it was entitled to payment, in accordance with Rosson’s admitted promise to pay, culminating in this suit. Aside from the signing of the delivery report, the conduct of Mathis was tantamount to signing of the said order. The reliance of appellee on the contention that there was no proper acceptance of the contract by Mathis, made for the first time in connection with his motion for rehearing, is not well taken.

As to the second new matter, hereinabove mentioned (alleged failure of title to pass to the buyer until the cash payment was made), it is apparent that, in law, the contract was a chattel mortgage. Under Art. 5489, Vernon’s Ann.Tex.Civ.St., and the Supreme Court cases construing it, a reservation of title as security for the purchase price of a chattel does not keep the title from passing to' the buyer but instead results in the creation of a chattel mortgage.

There is no basis for departing from our original disposition of this case on account of appellee’s contentions hereinbefore mentioned. There was a proper acceptance of Rosson’s order by Mathis and the written contract was completed. The instrument sued on by Mathis created an indebtedness and a chattel mortgage. The title of the machine was in Rosson, and a chattel mortgage lien as security for payment of the purchase price was held by Mathis.

The remainder of this opinion will assume that there was a completed written contract between the parties. Until his motion for rehearing, Rosson did not question the existence or completion of the written contract; he wanted to undo it on the basis of failure of consideration. However, he failed to secure a jury finding which would have authorized recission upon the basis of total failure of consideration, and he neither plead nor proved a cause of action or secured jury findings which would authorize a recovery for partial failure of consideration.

The original opinion did not discuss the nature and elements of recission. It appears now that further discussion in such connection is indicated.

Before a buyer can avail himself of the right of recission, (assuming that he has proper grounds for the same), he must proceed to give timely notice to the seller that the contract is being rescinded and either return, or, at least offer to return, the property he has received and the value of any benefit he may have derived from its possession. The rule requiring the buyer desiring to rescind to take such action is based on the view that before a recission can be granted, the parties must be placed in status quo, and on the maxim “He who seeks equity must do equity.” The burden of proof is on the party seeking recission to establish that he is entitled equitably to such relief.'

In this case Rosson wholly failed to sustain the burden imposed on him by law to entitle him to the remedy of recission. He undisputedly received a substantial benefit from the use of the cotton machine in question. However, he never, at any time, offered to do equity or to place Mathis in status quo. His failure to comply with this essential element of recission, particularly coupled with the jury finding in answer to special issue no. 2, that the machine in question was not wholly worthless for the purpose of picking cotton, is fatal to the granting of equitable relief, and recission should not have been granted to him.

The original opinion and decision were firmly based upon the expressed premise that the answer to special issue no. 1 was immaterial to rendition of judgment even if supported by evidence; and that Mathis was entitled to recover because of facts conclusively established and the answer of the jury to special issue no. 2.

Further discussion in the original opinion of the insufficiency of the evidence to support the answer to special issue no. 2, could have been omitted; but some consideration of it seemed to be indicated in the light of the whole record in this case. If insufficiency of the evidence to support said issue no. 1 had been the only ground for reversal, we would have been required to remand the case for trial rather than render judgment. However, because of its immateriality, special issue no. 1 could be disregarded and judgment then could and should be properly rendered for Mathis on the basis of the remaining finding of the jury on special issue no. 2, and facts conclusively established.

In connection with the insufficiency of the evidence to support the finding on special issue no. 1, the following appears; six witnesses testified in person (Rosson, Jouffray, Sutterfield, Murff, Card and West); one witness (Richie) testified by deposition; and there was a stipulation as to the matter which would be testified to by the witness Pullin. The testimony offered by Rosson was that of himself and West, and the stipulation as to Pullin. The remaining witnesses and Rosson were called to testify by Mathis.

Neither Rosson, West nor Pullin had ever seen the machine in question prior to August 11, 1962, the date of its delivery to Rosson. The stipulation as to Pullin was that he would testify he was the supervisor of the operation of the said cotton picking machine in August of 1962, and that he saw to it that the machine was greased according to the instructions given him by Mr. Murff (of Mathis). Said stipulation did not refer to the question of newness of the machine. The testimony of the witnesses for Mathis traced the machine in question from the factory to the moment it was delivered to Rosson, and was to the effect that the machine was new, and that it had not been theretofore sold or used. A critical examination of the testimony by Rosson’s witnesses in the light of well-settled rules reflects that the same involves only bare conclusions not rising to the dignity of evidence sufficient to support a finding of non-newness. This is particularly true when the “use” test, discussed in our original opinion, is applied.

The theories of recovery and defense relied on by the parties herein are clearly shown. Mathis relied upon the ground that the contract was executed and that title to the machine passed to Rosson, making him liable for the agreed price. Rosson relied upon the defense of failure of consideration because; (1) he received something different from what he ordered in that the machine was not “new”, and (2) the machine was wholly worthless for the purpose of picking cotton. The evidence failed to establish the first said ground in favor of Rosson, since it shows that he received a specific machine which was delivered to him and demonstrated and examined by him prior to his written acceptance of it. Under such conditions, its non-newness (assuming such finding to be supported by evidence) would give rise in this case only to a cause of action for damages for breach of warranty (not urged herein), and recission would not be authorized under such ground of defense. The second ground urged by Rosson (that the machine was wholly worthless for the purpose of picking cotton) was found against him by the jury, thus eliminating any possible basis for recission of the contract. The judgment of the trial court granting a recission in favor of Rosson is, therefore, unsupported by any jury finding or facts conclusively established. There is no place here for evidence-supported findings to be supplied by presumption in favor of the recission accomplished by the judgment. The jury finding on special issue no. 2, that the machine was not wholly worthless for the purpose of picking cotton, aborted Rosson’s ground of defense based upon total failure of consideration. This issue was complete in itself and nothing remained to be supplied or implied. This is not a case where one or more elements of a ground of defense have been submitted to the jury and other elements have been omitted. There was nothing left to find in connection with special issue no. 2, which could have been found by the trial court or by this court. Neither is there any implied finding that can be supplied by presumption which would support the judgment of the trial court in connection with the answer to special issue no. 1.

We find no merit in the contentions made by appellee in his motion for rehearing and the same is overruled.

      . “Where there is a breach of the agreement or warranty, accompanied with fraud, the buyer may always return the goods or not, at his pleasure. When there is no fraud, and the warranty goes to the fitness of the article, and it proves wholly unsuitable, or to the identity of the article, and it proves another thing from that for which it was sold, it may he returned upon breach of the agreement or warranty. But if the warranty goes to the degree of fitness or to quality, and it proves to be of an inferior quality or fitness, the goods cannot be returned, and the remedy is by action for damages, the measure of which is the difference between the value of the article as it is and as it was represented to be. Thus, if a machine is sold for a particular purpose, and it will perform none of the functions, it may be returned; but if it only perform them badly the remedy is by action for damages.”

      . Minneapolis-Moline Oo. v. Purser, 361 S.W.2d 239 (Tex.Civ.App., 1962, wr. ref. n. r. e.); Hendricks v. Moore, 156 Tex. 570, 297 S.W.2d 811 (1957); Billington v. Vest, 268 S.W.2d 705, (Tex.Civ.App., 1954, n. w. h.).

      . Guadalupe-Bianco River Authority v. City of San Antonio, 145 Tex. 611, 200 S.W.2d 989 (1947) — “It is true the conveyance to the City and the lease to GBRA -were evidenced by separate instruments, but these instruments were all executed at the same time as the result of a common understanding to consummate one overall transaction, and are therefore to be construed together as one contract.” Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472, 475 (1942) — “It is the settled rule in this State, * * * that written contracts executed in different instruments whereby a single transaction or purpose is consummated are to be taken and construed together as one contract.”

      . Grossmann v. Barney, 359 S.W.2d 475 (Tex.Civ.App.1962, ref. n.r.e.); Martin v. Roberts, 57 Tex. 564, 567-568 (1882).

      . General Motors Acceptance Corp. v. Musick, (Tex.), 379 S.W.2d 297 (1964); Crews v. Harlan, 99 Tex. 93, 87 S.W. 656, 658 (1905); Harling v. Creech, 88 Tex. 300, 31 S.W. 357 (1895) ; Milburns Manuf’g Co. v. Peak, 89 Tex. 209, 34 S.W. 102, 103 (1896). As stated in the ease last cited: “In case of sale, the property in the goods passes to the ven-dee, and, though the contract expressly provide for the reservation or retention of the title by the vendor until the purchase money be paid, the statute fixes its status as a mortgage; and the relationship between the parties is that of mortgagor and mortgagee.”

      . Ford v. Oliphant, 32 S.W. 437 (Tex. Civ.App., 1895, n.w.h.); Hubbs v. Marshall, 175 S.W. 716 (Tex.Civ.App., 1915, n.w.h.); 51 Tex.Jur.2d, Sales, Sec. 333, p. 54.

      . Bowden v. Waggoner, 210 S.W. 605 (Tex.Civ.App., 1919, wr. ref.); 51 Tex. Jur.2d, Sales, Sec. 333, p. 53.

      . Powell v. Rockow, 127 Tex. 209, 92 S.W. 2d 437 (1936), in which the court, speaking through Judge Hickman, said, “The burden is upon one seeking to have a contract canceled to establish that he is equitably entitled to that relief. Adams v. Hill (Tex.Civ.App.) 149 S.W. 349 (writ refused). The Roekows came into a court asking it to undo their contract. In order to be entitled to that relief, it was not enough that they merely establish fraud, but the burden was upon them to disclose a situation that made it not inequitable to grant it. This principle is well established.”

      . Rosson’s own testimony established that the machine had picked fifty bales of cotton during the time he used it. Even at thirty cents a pound for an average bale of five hundred pounds, the value of the cotton picked by said machine would be $7,500.00; and at a cost of Thirty Dollars a bale, the picking cost to Rosson would be $1,500.00.

      . Appellee herein has relied upon the decision of the Court of Civil Appeals in the case of Moore v. Hendricks, 290 S.W. 2d 758. That decision was reversed by the Supreme Court of Texas in Hendricks v. Moore, 156 Tex. 570, 297 S.W. 2d 811 (1957), and the judgment of the trial court (modified to the extent of a credit of $179.50 in favor of the buyer) was affirmed, as so modified. The Supreme Court held that the buyer there was not entitled to a recission but was relegated to an action for damages for partial failure of consideration, citing among other eases, Wright v. Davenport, 44 Tex. 164 (1875), and Allison Ranch Co. v. Angelo Auto Electric, Inc., 145 S.W.2d 645 (Tex.Civ.App., 1940, wr. dism. w.o.j.), which last two cases we relied upon in the original opinion herein. Another recent decision of the Supreme Court of Texas which supports our original disposition of this case is General Motors Acceptance Corporation v. Musick, 379 S.W.2d 297 (decided May 13, 1964). That case cites with approval J. B. Colt Co. v. Reeves, 266 S.W. 564 (Tex.Civ.App., 1924, n.w.h.), which decision we also relied on in our original opinion herein.

      . Dallas Railway and Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.20 377, 380 (1956); Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97, 99 (1939)..


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Miles F. LECHE et al., Appellants, v. Carl H. STAUTZ et ux., Appellees.
    No. 11251.
    Court of Civil Appeals of Texas. Austin.
    Jan. 13, 1965.
    Rehearing Denied Feb. 3, 1965.
    Appellants’ Second Motion Denied Feb. 17, 1965.
    Harris, Anderson, Henley, Shields & Rhodes, Manson Harris, C. A. Searcy Miller, Dallas, for appellants.
    Kuykendall & Kuykendall, Austin, for appellees.
   HUGHES, Justice.

In their original petition appellants, Miles F. Leche and Julian K. Lyles, sued Carl H. Stautz and wife, Paula Stautz, alleging that they, on November 6, 1963, were the owners in fee simple of a tract of land lying in Travis County, Texas, described as follows:

“BEING a tract of land 233 feet by 263 feet out of OUTLOT 18 Division ‘E,’ in the City of Austin, Travis County, Texas, and being the same tract of land which is described in a deed from BERMUDA HOMES, INC. to C. H. Stautz dated January 25, 1962, and recorded in Volume 2407, Page 447 of the Deed Records of Travis County, Texas.”

Appellants further alleged that on September 28, 1963, Miles F. Leche “conveyed in writing a definite formal offer to buy the property” described above “to Carl Stautz” and that on September 29, 1963, “a revised offer was sent to appellees.” Appellants alleged that on October 4, 1963, Carl H. Stautz, by telegram, “did convey his formal acceptance of such offer to buy,” and that a valid contract of sale was thereby established. Appellants alleged their willingness and ability to consummate such contract, and that they have demanded performance thereof by appellees who, notwithstanding such demand, have refused to perform their obligations thereunder. Appellants prayed for judgment for the title to and possession of such property and for their damages, and in the alternative that they have specific performance of the contract alleged.

On February 26, 1964, appellees having answered appellants’ suit and having pleaded the Statute of Frauds and Statute of Conveyances, Arts. 3995 and 1288, Vernon’s Ann.Tex.Civ.St. respectively, filed a motion for summary judgment. This motion was set for hearing on March 12, 1964, by the Hon. Jack Roberts, Judge of such court. Appellants were duly notified of the motion for summary judgment and the order of the court setting the hearing thereon.

On March 11, 1964, appellants, without having obtained leave of the Court, filed a First Amended Original Petition making additional allegations and adding a new party defendant.

On March 12, 1964, appellees made a motion to strike appellants’ First Amended Original Petititon alleging equitable grounds and noncompliance with Rule 63, Texas Rules Civ.Procedure. The trial court granted this motion.

Appellants’ first two points are to the effect that the trial court erred in striking their amended petition.

Rule 63 provides, in part, that any amended pleading offered for filing within seven days of the date of trial or thereafter shall be filed only after leave of the judge is obtained.

Appellants do not contend that the trial court abused its discretion in refusing to permit them to file their amended pleading and, for this reason, we will not discuss matters relating thereto.

Appellants do contend that a summary judgment proceeding is not a “trial” within the meaning of Rule 63, and that such rule is, therefore, not applicable. We overrule this contention, and these points, upon the authority of McCormick v. Stowe Lumber Company, 356 S.W.2d 450, Austin, Tex.C.C.A., writ ref., n. r. e.

Appellants’ third, and last, point is that the court erred in granting summary take nothing judgment for appellees because “there was a material fact issue presented by the pleadings.”

In their affidavit filed in support of their motion for summary judgment, appellees state that they own in fee simple the property sued for herein and have executed no conveyances of it or any portion of it to appellants or anyone else. They also state that the instruments referred to in appellants’ Original Petition are the following, which we copy in full:

“141P CST SEP 28 63 DA 176 1963 SEP 28 PM 1 49 D LLN118 DL PD DALLAS TEX 28 100P CST CARL STAUTZ 1704 EXPOSITION BLVD AUSTIN TEX SUBJECT TO UNDISCLOSED LIABILITIES OR AN SITUATION WHICH MATERIALLY WOULD EFFECT NORMAL CONSIDERATION OF PURCHASE, ALSO ASSUMING BOARD APPROVAL, THIS IS A FIRM OFFER TO BUY CAPABLE OF YOUR ACCEPTANCE. TO-WIT: FOR PURPOSES OF TRANSACTION, EFFECTIVE TERMINAL DATE YOUR OWNERSHIP MISS TEXAS TO BE SEPTEMBER 30 1963 AND BARUCH-FOSTER OWNERSHIP OCTOBER 30 1963. TOTAL SALE PRICE CONSIDERATION TO YOU THE SELLER TO BE $690,-000.00 LESS NINTH MONTH EARNEST DEPOSITS OF $7875.00, MAKING NET SALE PRICE CONSIDERATION TO SELLER $682,-125.00. BUYER TO PAY LYLES AND LECHE SEPARATELY ABOVE THIS FOR SERVICES RENDERED. BUYER WILL ASSUME HOME LIFE AND BANK LOANS TOTALLING $526,000.00. PAYMENT OF YOUR NET $156,-125.00 EQUITY TO BE ALL IN BARUCH-FOSTER COMMON STOCK VALUED FOR TRANSACTION AT $1.00 PER SHARE, WITH REPURCHASE AGREEMENT EXERCISABLE BY BARUCH-FOSTER AT ITS OPTION ANYTIME WITHIN THREE YEARS FROM SALE CLOSE, SUCH REPURCHASE, IF ANY, TO BE AT $2.00 PER SHARE VALUATION. ALL VOTING RIGHTS RESIDING IN YOUR STOCK TO BE CONVEYED FOR THREE YEAR TERM TO BARUCH-FOSTER PROXY. BUYER WILL ARRANGE $50,000.00 LOAN FOR YOU SECURED BY 100,000 SHARES YOUR STOCK, WHICH CASH LOAN PROCEEDS WILL BE PAID YOU AT SALE CLOSE. LOAN TO BE FOR ANY PART THREE YEAR TERM YOU WISH. ESTIMATE WILL REQUIRE APPROXIMATELY TWO WEEKS TO CLOSE BUT PREPARED TO START LEGAL WORK MONDAY AND EXPEDITE ALL POSSIBLE. IF THIS OFFER IS SATISFACTORY, WIRE ME YOUR IMMEDIATE ACCEPTANCE
MILES F LECHE
954P CST SEP 29 63 DAI 14
1963 SEP 29 PM 10 17 F LSQ230 NL PD DALLAS TEX 29
CARL STAUTZ, DLR DONT PHONE
1704 EXPOSITIONS BLVD AUSTIN TEX
SUBJECT TO UNDISCLOSED LIABILITIES OR ANY SITUATION WHICH WOULD MATERIALLY AFFECT NORMAL PURCHASE CONSIDERATION, ALSO ASSUMING BOARD APPROVAL, THIS IS A FIRM OFFER CAPABLE OF YOUR ACCEPTANCE. TO-WIT: EFFECTIVE TERMINAL DATE YOUR OWNERSHIP MISS TEXAS TO BE OCTOBER 30TH, 1963, WITH UNDERSTANDING YOU WILL COLLECT OCTOBER RENTS BUT PAY CURRENTLY ALL MISS TEXAS OCTOBER OPERATING BILLS, INCLUDING MONTHLY PAYMENT HOME LIFE INSURANCE COMPANY AND ALL OBLIGATIONS OTHERWISE OUTSTANDING IN ORDINARY COURSE OF BUSINESS, RETAINING FOR YOURSELF THE RESIDUE THEREFROM. TOTAL SALE PRICE CONSIDERATION TO YOU THE SELLER TO BE $690,000 LESS NINTH MONTH EARNEST DEPOSITS OF $7,875, MAKING NET SALE PRICE CONSIDERATION TO SELLER $682,125. BUYER TO PAY LYLES AND LECHE SEPERATELY ABOVE TPIIS FOR SERVICES RENDERED. BUYER WILL ASSUME HOME LIFE AND BANK LOANS AGGREGATING $526,000 MORE OR LESS. PAYMENT OF YOUR NET $156,125 EQUITY TO BE ALL IN BARUCH-FOSTER COMMON STOCK, VALUED FOR PURPOSES THIS TRANSACTION AT $1.00 PER SHARE, WITH REPURCHASE AGREEMENT EXERCISABLE AT ITS OPTION BY BARUCH-FOSTER OR ITS PROXY ANYTIME WITHIN THREE YEARS FROM SALE CLOSING, SUCH REPURCHASE, IF ANY, TO BE AT $2.00 PER SHARE VALUATION. ALL VOTING RIGHTS RESIDING IN YOUR STOCK TO BE CONVEYED FOR THREE YEAR TERM TO BARUCH-FOSTER PROXY. BUYER WILL ARRANGE $50,000 BANK LOAN FOR YOU SECURED BY 75,000 SHARES YOUR STOCK, WHICH CASH LOAN PROCEEDS WILL BE PAID YOU ON SIGNING CONTRACT AT SALE CLOSING. LOAN TO BE FOR ANY PART THREE YEAR TERM YOU WISH. IN VIEW LEGAL WORK, ABSTRACTS, ET CETERA, INVOLVED, WILL START ATTORNEYS WORKING MONDAY TO EXPEDITE CLOSING ALL POSSIBLE SPEED IF THIS OFFER SATISFACTORY AND YOU WIRE ME YOUR ACCEPTENCE FORTHWITH. “
MILES F. LECHE”

Appellants answered the motion for summary judgment and attached an affidavit of Miles F. Leche in support, the substantial portions of which we copy:

“1. That on or about the 15th day of June, 1963, CARL H. STAUTZ delivered to Plaintiffs a written brochure containing a letter, cost estimates, metes and hounds description of the property, economic analyses, a map of the immediate area around the property and pictures, all in description of the property described as ‘MISS TEXAS.’ That said property described as ‘MISS TEXAS’ was the only real estate in Travis County, Texas owned or claimed by the Defendants, CARL H. STAUTZ, and PAULA STAUTZ, under the name of ‘MISS TEXAS ;’ that at no time during the negotiations did the Defendants, CARL H. STAUTZ and PAULA STAUTZ, claim to own a battleship by the name of ‘MISS TEXAS’ or any other name; that at no time during the negotiations did the Defendants, CARL H. STAUTZ, and PAULA STAUTZ, claim to own a beauty contest by the name of ‘MISS TEXAS;’ that at no time did the negotiations pertain to any property owned by the Defendants, CARL H. STAUTZ and PAULA STAUTZ, other than the said real estate located in Travis County, Texas.
“2. That all future agreements were legally completed before November 7, 1963; that the loan agreement was completed or to be completed in accordance with the wish of the Defendants, CARL H. STAUTZ and PAULA STAUTZ; that Emil Heygi, President of Baruch-Foster Corporation, had the approval of the Board at all times up to November 7, 1963.”

This affidavit also affirms the truthfulness of all allegations contained in appellants’ answer to the motion for summary judgment. One of these allegations is the following:

“That nowhere in Defendants’ Answer of affidavit is there any statement which negatives the fact that the contract is based upon the letter, metes and bounds description of the premises, cost estimates, economic analysis, maps and pictures of ‘MISS TEXAS’ delivered by the Defendant CARL H. STAUTZ, to Plaintiffs on or about June 15, 1963, and the telegrams from MILES F. LECHE to CARL H. STAUTZ dated September 28 and September 29, 1963, and the telegram from CARL H. STAUTZ to MILES F. LECHE dated October 3, 1963 and the letter from F. L. Kuykendall to Baruch-Foster Corporation dated October 3, 1963 and the letter from CARL H. STAUTZ to Baruch-Foster Corporation dated October 4, 1963.”

We do not find in the record the letter and other documents and exhibits referred to in the above pleading as having been delivered to appellees on or about June IS, 1963. Nor do we find in the admissible record the letter from Carl H. Stautz to Baruch-Foster Corporation dated October 4, 1963.

The contract then, if there is a valid contract, between the parties, must be determined by an examination of the telegrams between the parties which constitute the offer by appellants and the- acceptance of such offer by appellees to determine if there has been a valid offer and acceptance.

We need not closely examine the telegrams in search of all the elements of a valid contract for the sale of real property because their cursory examination fails to disclose any description of the property which appellants contend was the subject matter of the contract, nor do such telegrams refer to any writing then in existence wherein such description could be found. Such contract was, therefore, unenforceable under the Statute of Frauds. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150. This case also holds that damage for breach of a contract for the sale of realty which contains an insufficient description of the property under the Statute of Frauds cannot be recovered.

The judgment of the trial court is affirmed.

Affirmed

On Motion for Rehearing

Appellants now contend that the trial court abused his discretion in refusing to permit the filing of an amended pleading the day before the date for hearing the motion for summary judgment.

A previous suit was filed by appellants against appellees on November 7, 1963, just one hour before a conference was to be held between Mr. Stautz and the president of Baruch-Foster regarding the sale of the subject property. Appellants knew of this conference and were denied admission to it. In such suit a lis pendens was filed. This had the effect of blocking the negotiations for sale of the property. Baruch-Foster was not made a party to such suit.

In such suit appellants sought to delay the taking of appellant Lyles’ depositions. When the case was called for trial, they sought a continuance, which was denied. They then took a non-suit, and seventeen minutes later refiled their suit. Baruch-Foster was not made a party to this suit. Only in the amended petition filed March 11, 1964, the day before the date for hearing the motion for summary judgment, was Baruch-Foster made a party. If such pleading had not been stricken by the Court, further delay in the trial of this cause would have ensued.

Other tactics of a dilatory nature are disclosed by the record as having been employed by appellants to delay the trial of this case. We conclude from the facts which we have recited that no abuse of discretion by the trial court in striking the Amended Petition is shown.

The motion is overruled.

Motion overruled.


author: LANGDON, Justice.

text:
    CITY OF ABILENE, Appellant, v. John F. DOWNS et al., Appellees.
    No. 16574.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 15, 1965.
    Rehearing Denied Feb. 19, 1965.
    John W. Davidson and Les Cochran, Abilene, for appellant.
    Brooks & Jones, and George D. Jones, Abilene, for appellees.
   LANGDON, Justice.

The suit, originally for damages to ap-pellees’ property caused by the operation of appellant’s sewer plant, was initially filed in June and October, 1960. Upon trial of the original cases, the City of Abilene appealed and the judgment in the cases reversed by the Supreme Court in April, 1963, with instructions to grant a change in venue. City of Abilene v. Downs, 367 S.W.2d 153 (Tex.1963). The cases were thereafter transferred to Young County, Texas. Six years after the sewage plant commenced operation and four years after the damage had occurred, the City of Abilene filed its third amended original answer and a cross-action in condemnation in response to the appellees’ second amended original petition for damages. The cross-action was based on Article 3269, Vernon’s Ann.Tex.St. Ostensibly the ground for jurisdiction under such statute was that the City was occupying the property of the appellees.

Prior to the second trial the City filed motions in limine seeking to suppress evidence of damages occurring to the land prior to the time it filed its cross-action for condemnation contending such evidence was immaterial because the ultimate issue was the fair market value of the land to be determined as of the date of trial without considering' either depreciation or appreciation in value due to the operation of the sewage plant. At the same time the City filed motions to open and close alleging it had the burden of proof to establish jurisdictional requirements for its condemnation. Both of these motions were overruled and the case proceeded to trial by a jury.

The summarized findings of the jury are: (1) the operation of the sewage plant constituted a nuisance causing permanent damage, (2) the nuisance arose in November, 1959, and (3) the combined market value of the land at date of trial disregarding either depreciation or appreciation because of the plant was $150,725.00 allocated as follows: Downs — $77,325.00; Powers— $36,400.00; and Shotwell — $37,000.00.

The City filed a motion for judgment awarding the appellees the market value of their land on the date of trial excluding any depreciation or appreciation in value due to the operation of the plant. The City’s motion for judgment was overruled and judgment was entered awarding the ap-pellees (1) the full depreciation in market value plus six (6) per cent interest from November 6, 1959, and (2) the full unde-preciated market value of their land as of November 18, 1963, and vested title to the land in the City. The judgment then provided that an amount equal to the permanent damage award be deducted hut refused to deduct the accrued interest on such permanent damages. The interest amounted to $9,423.05. Thus, under the final judgment the City was required to pay the full undamaged market value of the land as of the date of trial plus interest thereon from date of trial until paid into registry of the court and plus interest upon the amount of permanent damages found to have accrued from the time the nuisance arose to date of trial.

The appellant under four assignments contends that the court erred in overruling its motions in limine, to open and close in all phases of the suit and in overruling its motion for judgment. It further argues that the court erred in refusing to deduct the interest on the permanent damages along with such damages because the interest was a part thereof as distinguished from interest eo nomine. Appellant contends that the judgment requires it to pay interest on a sum of money awarded as permanent damages while at the same time conceding it did not owe the amount upon which the interest is based.

We affirm.

Under this record we are of the opinion that the action of the court in overruling the appellant’s motions in limine and to open and close was proper. The suit was one based primarily upon damages. Thus, the evidence relating to such damage was admissible and the appellees having the burden of proof had the right to open and close. The judgment requested by the appellant would have denied the appellees the full relief to which they were entitled. All of appellant’s points of error based upon the action of the court in overruling its motions for judgment, in limine and to open and close are overruled.

In our opinion the court did not err in failing to deduct from the condemnation award the amount of the interest ($9,-423.05) on the permanent damages. The Supreme Court of Texas in State v. Hale, 136 Tex. 29, 146 S.W.2d 731, p. 738, Syl. 22 (1941), citing numerous authorities, stated, “In this State it has been held that, in an action for damages for injury to real property, the owner is entitled to legal interest on the damages from the time the injury was inflicted.” See also City of Sweetwater v. McEntyre, 232 S.W.2d 434 (Eastland Tex.Civ.App., 1950, writ ref. n. r. e.), holding that when the damage is inflicted to the property the obligation to pay therefor begins and interest runs from such date as a part of the adequate compensation for such damages. Thus, from these cases and the authorities cited therein it would appear that the interest on such damages is part and parcel of such damages to adequately compensate the land owner. In this case it would seem to follow that if the land owners sustained permanent damages as of November, 1959, when the nuisance arose, they would be entitled to the use of such money from that date for investment or other uses. They did not have it. To deduct the interest awarded by the judgment would under the facts of this case deny the appellees any compensation for loss of use of money damage due them for the period involved.

The judgment of the trial court is accordingly affirmed.

Affirmed.


author: FRASER, Chief Justice.

text:
    Gerney G. HENDERSON, Appellant, v. Stuart A. MASON, Appellee.
    No. 5686.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 9, 1964.

      Gordon F. Johnson, Odessa, for appellant.
    Shafer, Gilliland, Davis, Bunton & Mc-Collum, James M. O’Leary, Odessa, for ap-pellee.
   FRASER, Chief Justice.

This is a malpractice suit filed by plaintiff-appellant against defendant-appellee, charging that defendant was negligent and-that such negligence was the proximate cause of the loss of sight in- appellant’s right eye. At the close of testimony the trial court withdrew the case from the jury- and entered judgment for defendant, holding that the plaintiff take nothing.

The facts, generally, are that on or about 8:00 or 8:30 on the evening of February 11, 1961, while working on a job at Andrews, Texas, the plaintiff received some sort of eye injury (as set forth in his petition). It appears that a piece of steel was imbedded in his right eye. Plaintiff was taken to Odessa, Texas to the Medical Center Hospital, for emergency treatment. It appears that a registered nurse on duty, after questioning the plaintiff, called the defendant, who was on voluntary duty in the emergency ward. It is alleged that defendant shone a flashlight in appellant’s right eye, put some drops in the eye, and discharged him. This treatment takes some twenty to thirty minutes. Further, that later on in the same evening, appellant’s eye began bothering him, and his wife tried to contact an eye surgeon, but was not successful in so doing until 9:00 of the next morning, which was Sunday. Appellant was seen and X-rayed by and under the instructions of one Dr. Carson, about noon of Sunday, at which time he was hospitalized. The following Monday morning the eye surgeon, Dr. W. T. Carson, operated on appellant and, by use of a magnetized instrument, removed a small piece of steel from the eye of appellant. Appellant later went to and was treated by a Dr. John Sheets, who testified that, to the best of his recollection, it was in April of the same year that plaintiff came to him. He further testified that plaintiff had no sight in his right eye other than to distinguish between light and darkness.

Appellant presents five points of error. Point 1 is to the effect that the trial court erred in holding, as a matter of law, that there was no evidence, or insufficient evidence, to show defendant guilty of any acts of negligence connected with his treatment of the appellant. Point 2 alleges error because the trial court found that there was no competent legal evidence, or there was insufficient legal evidence, from a medical doctor of the same school as defendant-ap-pellee showing, or tending to show, that ap-pellee had been guilty of negligence. Point 3 alleges error by the court in holding that there was no evidence, or wholly insufficient evidence, to show or tend to show that any act or omission of appellee was a proximate cause of the injury and damages to appellant. Point 4 charges error in the court’s holding that there was no evidence, or insufficient evidence, from a doctor of the same school as appellee showing, or tending to show, that any act or omission of appellee was a proximate cause of the injuries and damages to appellant; and Point S charges that the trial court erred in finding and holding, as a matter of law, that there was no competent, or, insufficient evidence from a doctor of the same school as appellee to distinguish among several possible causes of the injuries and damages to appellant.

Because the court rendered a verdict in favor of the defendant, we must consider the evidence that is favorable to the party against whom the verdict is rendered, and discard other evidence and inferences. As stated' in Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422, a peremptory instruction is warranted only when the evidence is such that no other verdict should be rendered. This matter is also discussed by our Supreme Court in Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W. 2d 60, where the court says that a determination of such law questions must hinge upon acceptance of the evidence and the inferences therefrom in their aspects most favorable to appellant’s case, and a discarding of contrary evidence and inferences. On the basis of the law stated above, we are compelled to make a thorough examination of the entire record, and to pay most careful attention to the evidence as set forth in the Statement of Facts.

This examination reveals that the defendant did flash a light into appellant’s eye and did insert some antibiotic drops. The plaintiff himself admits in his testimony that his wife started calling an eye surgeon within an hour or an hour and a half from the time he was treated by defendant. Also, that defendant told plaintiff that if he had any further trouble, he should get in touch with an eye specialist, and the record shows the following:

“Q Now, from that of course, you knew that he was not an eye specialist himself?
“A I gathered that, sir.”

Appellant claims that the defendant did not properly diagnose his condition and did not take advantage of an instrument called an opthalmoscope, nor order an X-ray of the eye. These facts are undisputed, the defendant stating in his testimony that he had never done an eye operation and had never treated any serious eye ailment; that he was primarily an internal medicine or heart and chest man, on voluntary duty in the emergency room. This is substantiated by the above quoted statement from the plaintiff himself, in which he says he “gathered” that defendant was not an eye doctor. Further, appellant says that within an hour or an hour and a half, his wife was trying to locate an eye surgeon. Appellant maintains that the delay between Saturday night and Monday morning was caused by improper diagnosis and treatment by the defendant, and that it was a proximate cause of the loss of his eye. This is flatly denied by appellant’s own witness, Dr. Carson, who did the surgery on Monday morning. Dr. Carson testified as follows:

“Q In other words, it is your testimony then that the period of elapsed time until you took out the piece of steel in question on Monday was not material ?
“A That’s right.”

Earlier, Dr. Carson had testified regarding the length of time the metallic object remained in appellant’s eye. His reply was, “I don’t think it had any effect whatsoever.” . ■

With these facts in mind, particularly statements by appellant and his own witnesses, it is clear that appellant knew defendant was not an eye surgeon; and the eye surgeon who did operate on appellant, and who was his own witness, stated definitely that the length of time elapsing between the injury and the operation had nothing to do with the loss of vision in his right eye. Also, defendant admitted that the opthalmoscope was there and available, and that there was, somewhere in the hospital, an X-ray machine, but that in his judgment at the time he saw appellant an X-ray was not necessary. He further testified that the opthalmoscope was largely used in determining medical conditions in the eye such as hypertension, etc. Appellant makes mention of the fact that the defendant was paid a fee of $10.00. It appears that this fee was paid by appellant’s employer.

We think this case must be affirmed for the following reasons. The law presumes that the physician has done his work properly, and he is not considered by the law to be a guarantor or insurer. His obligation is to use his best judgment, both in diagnosis and treatment, and the plaintiff can recover only when it can be affirmatively shown — and this is the burden of the plaintiff — that the diagnosis or treatment was not an error in judgment, but a matter of negligence, and that such negligence was the proximate cause of the damages claimed by plaintiff. There is no question but what the burden is on the plaintiff seeking damages; and the courts have held that the alleged negligence must be established by testimony of expert witnesses, the only exception being a type of negligence that is obvious to the untrained layman, such as leaving surgical instruments or sponges in the incision, or operating on the wrong portion of the body. In Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1 (1949), our Supreme Court stated as follows:

“It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries. * * *” (and cases cited).

There are several textbooks that deal with this same problem, as well as articles in law reviews, holding that expert testimony is absolutely essential except where the matter or injury is so plain as to be within the common knowledge of laymen. These texts and articles reiterate and emphasize that where the lawsuit or the issues deal with the prevailing standard of skill and learning in the community, the usual or proper practice in diagnosis and treatment of a particular injury or disease, the propriety of particular conduct of the physician or want of professional skill — expert testimony favorable to plaintiff is indispensable, and that without such, a plaintiff cannot recover. It has also been asserted that the physician is not responsible for an error in judgment. It is clear from the evidence here, even though we view it most favorably to appellant, that there is no expert testimony that defendant was negligent in any way in his diagnosis and treatment of the injury. With regard to the use of the opthalmoscope, the defendant’s testimony (that it would not be of any value in this particular type of case because it does not magnify sufficiently to be of any help) stands undisputed. Viewing the evidence as a whole we cannot find, even by giving the most favorable construction possible, that the defendant was guilty of any negligence, either in diagnosis or treatment. Even though appellant accuses him of an error in judgment, the law does not hold the physician responsible for such unless it amounts to negligence, and there is none shown here by any testimony. There is no expert testimony by expert witnesses in the same vicinity as to the standard of what constitutes accepted and proved practices in matters of this type. Appellant himself admits in his brief that this is the rule. Further, the testimony of Dr. Carson, who did the surgery, is undisputed that the lapse of time from Saturday night until Sunday noon, when he saw the patient, and Monday morning when he operated, had nothing whatever to do with the loss of plaintiff’s eye. The evidence also indicates, therefore, that the loss of sight might be due to some other reason, such as the actual penetration of the fragment of steel. For these reasons we hold that plaintiff has failed to meet the burden he assumed when he charged the defendant with negligence in diagnosis and treatment. Davis v. Virginian Railway Co., 361 U.S. 354, 80 S.Ct. 387, 4L.Ed.2d 366; 22 T.L.R. 357; Prosser on Torts, 134 and 197; 45 Tex.Jur.2d, Sec. 131, pp. 304, 306; Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); Christian v. Galutia, 236 S.W.2d 177 (Tex.Civ.App., n. r. e.); 45 Tex.Jur.2d, sec. 129, pp. 299, 300.

We have examined appellant’s cases, but do not believe them to be in point when considered with the facts here present. In Humphreys v. Roberson, 125 Tex. 558, 83 S.W.2d 311, by the.Supreme Court (which is cited by appellant), the defendant himself testified that if he or any doctor touched the eyeball with an electric apparatus used for the purpose of treating a condition of the eyelid, such would be negligence. He then denied having done this; and so there we have the defendant himself defining negligence and the jury finding him guilty of it; and of course it was an affirmative act of negligence of which the jury found him guilty. This case also illustrates the principle where the injury involved was to a portion of the body not within the field of operation. The other cases cited by appellant do not sufficiently support his position, and we do not wish to burden this opinion with a discussion of each of them.

It is also clear from the record that appellant was never able to prove that any negligence or alleged negligence on the part of the defendant was the proximate cause of the loss of vision in his right eye. We have viewed this evidence and considered it as favorably as possible to appellant, but there is no evidence that the diagnosis, treatment, or lack of treatment on the part of the defendant was the proximate cause of the loss of vision. As stated above, appellant’s own witness, Dr. Carson, stated that the lapse of time from Saturday night to Monday morning had nothing to do with the loss of vision. Dr. Carson testified as follows:

“A Yes, because it hadn’t been in there long enough to break down and hadn’t been long enough for it to start an inflammatory reaction, and there was no evidence that there was any of either of those present in his eye.”

Under cross-examination Dr. Carson stated that, in his opinion, the cause of loss of cisión was due to the injury itself, in that appellant had a piece of metal propelled into his eye which hit a blood vessel in some back area of the eye, which blood vessel ruptured causing bleeding into the vitreous. The doctor further testified that he didn’t notice any injury on his first examination, and found the injury by the use of a Slit Lamp microscope.

Again referring to the case of Bowles v. Bourdon, supra, our Supreme Court says:

“ * * * ‘The proof must establish causal connection beyond the point of conjecture. It must show more than a possibility. Verdicts must rest upon reasonable certainty of proof. Where the proof discloses that a given result may have occurred by reason of more than one proximate cause, and the jury can do no more than guess or speculate as to which was, in fact, the efficient cause, the submission of such choice to the jury has been consistently condemned by this court and by other courts.’ Ramberg v. Morgan, 209 Iowa 474, 218 N.W. 492, 498.”

The same case is cited in 45 Tex.Jur.2d, Sec. 131 at page 306, for the proposition that “where the only expert medical testimony in a malpractice action expresses the opinion that the defendant’s treatment was not the proximate cause of the injury complained of, and there is no expert opinion to the contrary, a directed verdict for the defendant is proper.” Also see 70 C.J.S. Physicians and Surgeons § 62, page 995, which states:

“Where two causes, the original injury and the improper treatment, are cooperating to produce the final result, plaintiff in order to recover for malpractice must adduce evidence to show that proper treatment would have produced a better result, and the jury cannot he allowed to speculate on the relative amount of injury due to the original injury and that due to malpractice.”

Therefore, by way of summary, it is clear that the evidence, viewed in the light most favorable to appellant’s position, fails to prove any negligence on the part of the defendant and fails to prove that, had there been any negligence, such was .the proximate cause of appellant’s injuries; not one of several, but the only one. Also, we repeat — as the cases above cited hold— a doctor is not required to respond in damages for errors in judgment or treatment unless the same constitutes negligence. In the case before us there is also the lack of proper testimony from experts in the same field and vicinity. The injury involved here is not one such as the ordinary layman could determine to have been caused by negligence which was a proximate cause •of the damage. In other words, it is an injury calling for expert testimony, of which there was none favoring appellant’s position, although two different eye surgeons did testify as appellant’s own witnesses. It is elementary, of course, that a party is bound by the testimony of his own witnesses.

For the reasons hereinabove set forth, all five points presented by appellant are overruled, and the decision of the trial court is in all things affirmed.