author: HALL, Justice.

text:
    Ola Mae STAHL et al., Appellants, v. SHRINER’S HOSPITAL FOR CRIPPLED CHILDREN OF TEXAS et al., Appellees.
    No. 5961.
    Court of Civil Appeals of Texas, Waco.
    April 19, 1979.
    Rehearing Denied May 24, 1979.

      Philip E. Hamner, San Antonio, for appellants.
    Henry C. Meyer, III, Wynn, Brown, Mack, Renfro & Thompson, Fort Worth, James H. Walker and Leonard E. Choate,-Dallas, John L. Hill, Atty. Gen., David M. Kendall, Jr., 1st Asst. Atty. Gen., James R. Riggs, and Katherine L. Chapman, Asst. Attys. Gen., Austin, Clark Murray, Flores-ville, for appellees.
   HALL, Justice.

This is a suit to construe the will of Eloise D. Williams, deceased. The principal questions we must decide are (1) whether the gift intended by testatrix’s devise of her 103-acres “home place” to certain nieces and nephews was adeemed when, three months prior to her death, testatrix sold and conveyed the home place in consideration of an $80,000.00 promissory note payable in ten years in annual installments and secured by vendor’s lien and deed of trust lien; and, if the bequest was adeemed, (2) whether testatrix intended the note should pass under the residuary clause of her will to the charity-beneficiary named therein. The trial court held the gift was adeemed by the sale, and that the residuary beneficiary received the note. We sustain the ruling of ademption, but we hold the note did not pass under the residual bequest.

The will was executed December 12,1973. Codicils to the will were executed January 23, 1974, and May 19, 1976. Testatrix died January 7, 1977. The record does not show her age at the time of death, but the only reasonable inference from the record is that she was elderly. Her surviving heirs are a sister Ola Mae Stahl, and three nieces Esta Germer, Joyce Dawson and Martha Ka-sprzyk. She is survived also by other relatives, including nephews Billy Joe Stahl and Thomas J. (Jack) Williams.

In paragraphs 4, 5 and 6 of her will, testatrix devised her 103-acres “home place” located in Wilson County, Texas, to her nephews Thomas J. (Jack) Williams and Billy Joe Stahl, and her nieces Esta Germer, Joyce Dawson and Martha Kasprzyk, in the following terms:

4.
“I will my home place (consisting of 103 acres of land, more or less, in the A. Trevino Grant, Survey No. 11, in Wilson County, Texas, and conveyed to me by deed of record in Vol. 185, Page 327, Deed Records of Wilson County, Texas) as follows: In regard to the Northwest 40 acres of same, my nephew, Thomas J. (Jack) Williams shall have the option to purchase same by making the following payments: $2,000.00 to Julia Mattke (or to her daughters, share and share alike, if the said Julia Mattke shall predecease me); $2,000.00 to Mittie Anderson or to her husband, Fred Anderson, if the said Mittie Anderson shall predecease me; $2,000.00 to my cousin, Lillie Belle Carey, or to her husband, Jack Carey, if the said Lillie Belle Carey shall predecease me; and $1,000.00 to my nephew, Jimmy Cross (at the request of my deceased husband, Norris Williams) or to Norris Cross, if the said Jimmy Cross shall predecease me. Said option shall be exercised by the said Thomas J. (Jack) Williams within a reasonable time after my death, and in no event, later than six months after the payment by my hereinafter named executor of any and all State Inheritance Taxes and Federal Estate Taxes, that is, when the respective Governments agree as to how much tax is owed. My said nephew, Thomas J. (Jack) Williams, may encumber said 40 acres, in order to make said payments.
5.
“The balance of my said home place (being the Southeast 63 acres of said tract, more or less) I will to Billy Jo Stahl, Esta Germer, Joyce Dawson and Martha Kasprzyk, share and share alike.
6.
“The above named parties may take possession of said land when my Executor shall surrender such land, in his sole discretion, to such parties, and they shall thereafter receive all rents and revenues from the respective tracts of land.”

In the first codicil, testatrix added to paragraph 5- the provision that if any beneficiary therein predeceased her, then the beneficiary’s share would go to “his or her descendants, per stirpes.”

The will contained other devises and bequests which we shall notice later. Then, in paragraph 17, testatrix willed her residual estate to “the Masonic lióme or Homes for Crippled Children, to be used only in Texas.”

On October 5, 1976, testatrix sold and conveyed her 103-acres home place to Norman Rallies and wife, Audrey Jane Rallies, by general warranty deed. The deed was recorded in the deed records of Wilson County on November 2, 1976. The consideration for the conveyance was “the sum of Ten Dollars and other good and valuable consideration in cash” and, additionally, the grantees’ promissory note for the principal sum of $80,000.00, bearing interest at the rate of six per cent per annum until paid. The principal was payable in equal, annual installments of $8,000.00, and the interest was payable annually, but the grantees reserved the right of prepayment at any time, without penalty. The note was. secured by vendor’s lien retained in the deed of conveyance and by deed of trust lien executed by the grantees. Because of a handwritten alteration on the face of the note, there is a discrepancy between that instrument and recitals in the deed and deed of trust as to whether the first annual payments of principal and interest were due on November 1, 1976, or November 15, 1977. The contesting parties stipulated the first payment had been made at the time of testatrix’s death, but the executor later testified the first payment was due in November, 1977, and was made after the testatrix died.

Appellee Clark Murray was the scrivener of testatrix’s will. He is also independent executor under the will. He was also the named Trustee in the previously mentioned deed of trust. After the will was probated, he initiated this suit, as executor, in the County Court of Probate seeking a construction of the term “Masonic Home or Homes for Crippled Children” in paragraph 17 of the will. He joined as defendants testatrix’s heirs Ola Mae Stahl, Esta Germ-er, Joyce Dawson and Martha Rasprzyk; Texas Scottish Rite Hospital for Crippled Children; Shriners’ Hospital For Crippled Children of Texas; Masonic Home and School of Texas; and The Attorney General of Texas. In his petition, Murray asked the court to answer these questions: “Does the residual estate go to Masonic Home and School, Scottish Rite Hospital for Crippled Children, or Shrine Hospital for Crippled Children, or is such Paragraph [17] so uncertain as to be void, thereby creating intestacy as to said residual Estate?” He alleged there was no Masonic Home for Crippled Children, but that the two previously mentioned hospitals for crippled children existed and were owned and operated by the Masonic Order in Texas. He stated in his pleading that although he authored the will for testatrix he had not the slightest idea what she meant by the term “Masonic Home for Crippled Children”; that when he wrote the will he knew testatrix’s deceased husband had been active during his lifetime in the Masonic Order; and that he “thought she knew what she was talking about.”

After all the original parties, to the suit had answered, and upon their motions, the case was transferred to the District Court for trial. Thereafter, Thomas J. Williams and Billy Joe Stahl entered the case as intervenors, and sundry pleadings were filed by all the parties except the executor Murray, and testatrix’s heir Martha Ra-sprzyk. The positions and contentions of the parties when the case went to trial may be summarized as follows: Testatrix’s heirs Ola Mae Stahl, Esta Germer and Joyce Dawson, and intervenors Billy Joe Stahl and Thomas J. Williams, contended (1) that because there was no entity known as “the Masonic Home or Homes for Crippled Children” the residuary clause was void for uncertainty and testatrix’s residual estate should pass to her heirs; and (2) that it was testatrix’s intent that her nieces and nephews named in paragraphs 4 and 5 receive the economic benefit of the respective interests in the land therein devised to them, that accordingly the gift was not adeemed by the sale of the home place by testatrix and they are entitled to the note and the liens securing it and all payments on the note since testatrix’s death; and (3) in any event, testatrix did not intend that the note and liens should pass under the residuary clause of her will. The Attorney General, Masonic Home and School of Texas, Texas Scottish Rite for Crippled Children, and Shriners’ Hospital for Crippled Children asserted (1) that the gift of the residuary estate to “Masonic Home or Homes for Crippled Children, to be used only in Texas,” was not void for uncertainty or vagueness, but evidenced an intent to benefit children in Texas through one or more of the institutions supported by Masonic organizations for that purpose, to wit, the three Masonic institutions which are parties to this suit, and that they should share the proceeds of the residual estate equally; and (2) that the specific devise of the home place by the testatrix was adeemed by extinction and alienation and revoked when testatrix sold the property, and that the provisions of the will show that testatrix intended that the $80,000.00 note should pass to the beneficiary of her residual estate.

After a hearing without a jury, the trial court found and concluded that the specific devise of the home place in paragraphs 4 and 5 of the will was “adeemed, revoked, and became inoperative because of the disappearance of the 103 acres of land” from testatrix’s estate by reason of the sale; that the sale “constituted an equitable conversion of the real estate into personal property, to wit [the $80,000.00 promissory note], and that the same became a part of the residuary estate of the Testatrix”; and that it was the intention of the testatrix in paragraph 17 . that her entire residuary estate, including the note, vest in and go to “Shriners Hospital for Crippled Children of Texas and Texas Scottish Rite Hospital for Crippled Children, both being charitable beneficiaries of Masonic origin, and said residuary estate to be used by said organizations in Texas only.” Upon those determinations, judgment was rendered that the “entire residuary estate, including [the $80,000.00 note],” was vested in the named Shriners Hospital and Scottish Rite Hospital to be used by them only in Texas.

The Masonic Home and School of Texas did not appeal.

Ola Mae Stahl, Esta Germer, Joyce Dawson, Billy Joe Stahl and Thomas J. Williams appeal. Their contentions here are the same they made on the trial, and they attack the contrary determinations made by the trial court. They also assign error to the court’s exclusion of certain evidence offered by them, which we shall notice later.

The provisions in the will may be summarized as follows:

1.
All # oil, gas and mineral interests in Nacogdoches and Hardin Counties to my nephew Thomas J. (Jack) Williams, or to his children share and share alike if he predecease me.
2.
A life estate in Lots 1 and 2 in Block 50 of the Old Town of Sutherland Springs, Wilson County, Texas, to my brother John Dawson with remainder to my cousin Lillie Belle Carey and her husband Jack Carey, share and share alike, but in fee to them if John Dawson shall predecease me.
3.
All my jewelry, clothing, and other personal effects and my automobile, and all my household furniture and furnishings (including all in rent houses) to my niece Irene Williams, to be disposed of by her in accordance with my non-testamentary directions to her attached to this will; provided that any items not mentioned in the directions are given to Irene. [In the second codicil, this paragraph was amended to provide that all jewelry, clothing and other personal effects were given to Mary Margaret Duelm (whose relationship to testatrix was not shown in the will), and that all household furniture and furnishings still passed to Irene Williams, to be disposed of by Duelm and Williams in accordance with non-testamentary directions attached to the will; and provided that any items not mentioned in the directions were given to Duelm and Williams. It was also provided in the codicil that the automobile was given to testatrix’s brother, John Dawson].
[In the first codicil, a new bequest was made, being $1,000.00 cash to Mary Margaret Duelm. In the .¡second codicil that cash bequest was increased to $2,000.00].
4, 5, and 6.
[These paragraphs and the addition made to paragraph 5 in the first codicil have been previously set forth].
7.
$5,000.00 cash to my sister Ola Mae Stahl and husband, Herbert Stahl, or to the survivor if one predecease me. [This bequest was amended in the first codicil to provide that if Ola Mae Stahl predeceased testatrix, then the $5,000.00 should be divided evenly between Herbert Stahl, Mary Dawson, Martha Dawson and Kathleen Williams, “provided that none of them shall receive more than $1,250.00”].
8.
2,000.00 cash to Mary Jones and husband Pat Jones or to the survivor if one predecease me, or to their children, share and share alike if both predecease me.
9.
2,000.00 cash to Allen Wilson.
10.
My executor shall furnish tombstones for the graves of Mr. and Mrs. Will Heathcock and their infant daughter and for the grave of my brother John Dawson if he predecease me, and the amounts to be spent therefor shall be solely within the discretion of the executor. The executor is relieved of this obligation if the tombstones are placed at the graves before he can do so. My executor shall also pay the funeral expenses of my brother John Dawson if they are owed at the time of my death or incurred during administration of my estate.
11.
“If any bequest shall lapse because there shall be no taker of such bequest at the time of my death, such lapsed bequest shall form and be a part of my residuary estate as next below described.”
12.
“All the rest, residue and remainder of my estate and property (and in this connection, all lapsed special bequests shall pass to and become a part of my residuary estate described in this paragraph) I will to Clark Murray in Trust for the following named purposes,” provided that payment of all debts, expenses of administration, State and Federal taxes shall receive priority out of the residual estate, and provided that commissions to the executor and trustee, (or attorney’s fees in lieu thereof) and the expenses of the tombstones shall be paid out of the residual estate.
13.
“If there shall be insufficient cash, or personal property easily converted to cash (such as bonds, stocks, savings accounts, time deposits and checking accounts) at my death to pay said debts, expenses of administration, State Inheritance and Federal Estate Tax, if any, and any and all other payments directed by me to my said Executor to be made, then said cash bequests shall be prorated.”
14.
Clark Murray is appointed Independent Executor and Trustee without bond under this will and may charge my estate reasonable commissions for those services, or, in lieu of either commissions he may charge reasonable attorney’s fees.
15.
[The executor was granted broad powers in dealing with the properties of the estate during administration, including the right “to sell and deliver and/or convey any portion of my estate . execute oil, gas or other mineral leases on any land of my estate . . . and execute surface leases,” and then the purposes of the trust were set forth as follows].
Initially, the trust shall be for my brother, John Dawson, as follows: $50.00 per month to or for him, unless the trustee shall decide, solely at his discretion, that no money or more money is necessary and shall be expended for my brother’s care and maintenance.
16.
“The trust' shall continue so long as John Dawson shall live, and upon his death, the entire Trust estate (including corpus or principal, and income) shall vest in fee simple in the Masonic Home or Homes for Crippled Children, to be used only in Texas, subject to all other provisions of this Will and subject to administration on my estate.”
17.
“If the said John Dawson shall be deceased at the time of my death, there shall be no Trust, and my entire residuary estate, as above described in paragraph 12, shall vest in fee simple, in said Masonic Home or Homes for Crippled Children and to be used in Texas only, subject to the above and foregoing provisions of this Will, and subject to administration.”
18.
[Board discretionary powers were vested in the Trustee in dealing with the trust estate].
19.
If in the discretion of the Trustee there shall be sufficient amount of my estate to care for John Dawson, then before the death of John Dawson the Trustee may make advancements to Masonic Home or Homes for Crippled Children to be used only in Texas, provided that if such advancements are made and the trust funds are depleted while John Dawson is alive, then the Masonic Home or Homes shall return enough of the advances needed for the care of John Dawson.
20.
[Again, broad discretionary powers of the trustee in dealing with the trust estate were set forth, and the will was then concluded with the following paragraph].
“Notwithstanding the above and foregoing paragraph 15 hereof, my executor shall not sell any land specially bequeathed herein, unless it shall be necessary to pay my debts, expenses of administration, State Inheritance and Federal Estate Taxes, if any, said commissions and/or attorney’s fees, and any and all other sums directed by me to be paid by my said Executor and/or Trustee, and all personal property (except that willed herein to Irene Williams) shall be first exhausted, and, notwithstanding the cash bequests mentioned herein, my Executor and/or Trustee shall have the right to use all cash to pay the matters mentioned in this paragraph, and may use my checking accounts and other accounts and things easily converted to cash (as above stated) to pay such things. The trust for my brother, John Dawson, shall have first call on my cash, or things easily converted to cash, as above stated. Whether such cash is needed for the trust for my said brother shall be solely within the discretion of my Executor and/or Trustee, and if such cash shall be exhausted before the death of my said brother, my Executor and/or Trustee shall not be liable therefor.”

Testatrix was married to Norris Williams who died in 1969. Neither had nor adopted any children. They lived on the Dawson “home place” which had been in the Dawson family for about one hundred years. The home place was conveyed to testatrix by deed in September, 1936. She continued living there after her husband’s death.

Testatrix was the daughter of William Elijah Dawson and Elsie Lenora Dawson. She had two brothers, Walter Guy Dawson who died in 1956, and John West Dawson who died in September, 1976; and she had a sister Ola Mae Dawson, now Ola Mae Stahl, who survives. Esta Germer and Joyce Dawson are the daughters of Walter Guy Dawson. Martha Kasprzyk is the daughter of John West Dawson. Billy Joe Stahl is the son of Ola Mae Stahl. Thomas J. (Jack) Williams was the nephew of testatrix’s husband. Julia Mattke and Mittie Anderson were her husband’s nieces. Except as identified in the will, testatrix’s relationship to other beneficiaries named in the will is not shown in the record.

Testatrix’s husband became a member of a local lodge of the Masonic Order in 1919, but was suspended in 1928 for nonpayment of dues. He was reinstated in 1944, and he was a member in good standing from June, 1965, through June, 1969. Although testatrix was eligible to join the women’s auxiliary of the Masons, she did not.

The Masonic Order sponsors three charitable institutions which operate exclusively in Texas for the benefit of children. They are the Masonic Home and School of Texas, located in the City of Fort Worth, which provides care for the homeless children of Texas; and the Texas Scottish Rite Hospital for Crippled Children, located in the City of Dallas, and the Shriners’ Hospital for Crippled Children of Texas, located in the City of Houston, which provide care for the crippled children of Texas without charge.

A portion of the annual dues of $10.00 paid by testatrix’s husband to his Lodge went indirectly to support the Masonic Home and School of Texas. Also, during his membership, he occasionally made contributions directly to the Texas Scottish Rite Hospital for Crippled Children.

The executor has not caused an inventory and appraisement to be made of testatrix’s estate, but he testified the estate consists of these properties: The $80,000.00 note in question upon which the first payment was made after testatrix’s death, and the liens securing the note; the royalty and mineral interests described in paragraph one of the will; a one-half interest in the two lots in Sutherland Springs described in paragraph two of the will; a checking account in the amount of $4,500.00; a savings account in the approximate amount of $300.00; and the executor’s checking account. The amount of the executor’s account is not shown in the proof.

It is undisputed in the record that there is no organization or institution named or known as “Masonic Home for Crippled Children.” Appellants contend the inexact designation by that name of the beneficiary in the residual clause of the will renders the bequest void and unenforceable. We disagree. The language used in the bequest evidences the charitable intent of testatrix to help crippled children in Texas through one or more institutions sponsored by Masons. The Texas Scottish Rite Hospital for Crippled Children and the Shriners’ Hospital for Crippled Children are the only ,such institutions in existence. The evidence supports the trial court’s finding that they were the institutions intended by the testatrix’s bequest to “Masonic Home or Homes for Crippled Children to be used in Texas only” in paragraph 17 of the will. The court’s award to them of the residual bequest to carry out the charitable purpose set forth therein was correct. See, Bode v. Loeffler, 540 S.W.2d 465 (Tex.Civ.App.— San Antonio 1976, writ ref’d).

It is the rule in Texas that absent a contrary intention expressed in the will, the alienation or disappearance of the subject matter of a specific legacy from the testator’s estate in his lifetime adeems the bequest. Rogers v. Carter, 385 S.W.2d 563, 565 (Tex.Civ.App. — San Antonio 1965, writ ref’d n. r. e.).

Although appellants pleaded that testatrix’s devise of the home place was a specific legacy, they now assert it was demonstrative and therefore not subject to ademption. The contention is overruled. Whether a devise is general, demonstrative, or specific must be determined from the terms of the will. Lake v. Copeland, 82 Tex. 464, 17 S.W. 786, 787 (1891). It is plain that testatrix intended by the devise in question to vest fee title to a distinctly described tract of land in the named beneficiaries. A similar devise was held to be specific in Currie v. Scott, 144 Tex. 1, 187 S.W.2d 551, 553.

The land was not a part of testatrix’s estate when she died, and the devise of it was thereby rendered inoperative. Appellants seek a construction of the will which would substitute the proceeds of the sale in the place of the land in the devise. That construction would call for substantial revision of paragraphs 4 and 5. Although that would be done to effectuate testatrix’s intent, we do not find the intention to bequest the purchase money note in lieu of the land expressed in the will. Accordingly, we hold the legacy was adeemed. Under this holding, the trial court’s rulings on equitable conversion and revocation are rendered immaterial, and we do not review them.

Appellants argue that by virtue of the express vendor’s lien and the deed of trust lien testatrix retained an interest in the land which passed to them under the devise of the home place, carrying with it the purchase-money note. We cannot agree. The title conveyed by the grantees to the trustee in the deed of trust and the title retained by testatrix in the vendor’s lien was bare legal title. In Texas, a vendor’s lien and a deed of trust lien are not mortgages (under which the grantee gets only a lien, and title remains in the grant- or), but are limited to the character of security for the purchase-money debt, and exist only for that purpose. They do not represent an interest in the land in the sense the term is used by appellants. See, First Baptist Church of Fort Worth v. Bible Baptist Seminary, 162 Tex. 441, 347 S.W.2d 587, 590 (1961); Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S.W. 296, 300 (1923); Carroll v. Edmondson, 41 S.W.2d 64, 65 (Tex.Com.App.1931); 39 Tex.Jur.2d (Rev.) 13-16, Mortgages And Trust Deeds, §§ 5, 7.

During the trial, appellants offered proof, including statements made by testatrix after she sold the home place, to show that testatrix intended that the nephews and nieces named in her will as beneficiaries of the devise of the home place should receive the proceeds of the sale. Ap-pellees objected, and the proof was excluded. Appellants assign error to that ruling. The evidence was properly excluded. Extrinsic evidence, including oral declarations of the testator, is not admissible for the purpose of showing the testator’s intent under the will. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 889 (1960); Schelb v. Sparenberg, 133 Tex. 17, 124 S.W.2d 322, 326 (1939). In Huffman our Supreme Court said, “The very purpose of requiring a will to be in writing is to enable the testator to place it beyond the power of others, after he is dead, to change or add to his will or to show that he intended something not set out in, or different from, that set out in his will.” Under those rules, extrinsic evidence to show that the testator did not intend an ademption by alienation was held properly excluded in Rogers v. Carter, supra [at 385 S.W.2d 567].

The remaining issue for decision is disposition of the note. We hold the note did not pass under the will and that it goes to the surviving heirs.

We recognize that our holding is contrary to the general rules for construction of wills which provide that the law does not favor a construction that results in partial intestacy, and that the fact of execution of a will raises a presumption against intended intestacy' by the deceased, and that the presumption is enhanced by the inclusion of a residuary clause in the will. Haile v. Holtzclaw, (Tex.1967) 414 S.W.2d 916, 922; Ellet v. McCord, 41 S.W.2d 110, 113 (Tex.Civ.App. — Austin 1931, writ ref’d). But the single purpose of all rules developed by the courts for the construction of a will is to ascertain the intention of the testator and “before it all such rules fall.” Welch v. Straach, (Tex.1975) 531 S.W.2d 319, 322. Under that cardinal principle, the presumption against intestacy, even with a residuary clause in the will, must yield to the contrary intention expressed in the will. Moss v. Helsley, 60 Tex. 426 (1883); Bittner v. Bittner, 45 S.W.2d 148, 152 (Tex.Com. App.1932). It cannot be used “as an excuse for violating the testamentary scheme.” Stewart v. Selder, (Tex.1971) 473 S.W.2d 3, 8.

The language used in the entire will, considered in connection with the relation and situation of the parties at the time the will was executed, is used to determine the testator’s intention; and it must be given a fair, practical and reasonable interpretation. Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147, 149, 150 (1945). A clause in a will should be construed so as to be both consistent in itself and consistent with the whole language and purpose of the will. Darragh v. Barmore, 242 S.W. 714, 717 (Tex.Com.App.1922).

In our case appellees-hospitals were so unfamiliar to testatrix that she did not know their names. They were secondary beneficiaries under the residuary clause. The paramount use for the residuary estate intended by testatrix was to provide the needs of her brother, John, if he survived her. Even under that contingency the will expressed a restrictive attitude toward the residuary estate in relation to the real estate. The executor was granted broad powers regarding the estate, but under the express terms of the will sale of the real estate was permitted only if necessary to pay debts, taxes, or costs of administration. There was no provision for sale of the real estate to fund the residuary estate for John’s care nor for any other purpose. Testatrix provided that any bequest which lapsed “because there shall be no taker” would become a part of the residuum, but she hedged against the likelihood of such lapses in most instances, and especially where her real estate was concerned, by providing for alternative beneficiaries.

The $80,000.00 note in question is the major asset in testatrix’s estate. It is readily identifiable in the estate. It resulted from the sale of the 103-acres home place which had been in testatrix’s family for 100 years. Testatrix did not sell the home place (in October, 1976) until after her brother John had died (in September, 1976) and need of funds for his care after her death had been obviated. Because John predeceased testatrix, the “entire residuary estate” was vested in the hospitals. Did testatrix intend it included the $80,000.00 note? We hold she did not. A mechanistic construction of the will following the presumption against intestacy would place the $80,000.00 note in the residuary estate, but the terms of the will do not support that intention. The language of the will shows a minimal gift intended for the residuary legatee composed mainly of cash money from sources other than the sale of testatrix’s real estate, not needed for the care of testatrix’s brother (if he survived her) nor for the cash bequests. The $80,000.00 note represents the proceeds of sale of real estate made by her with knowledge that funds were no longer necessary for the care of her brother. The real estate producing the note was devised in the will to testatrix’s nephew (Williams) by her deceased husband; and another nephew (Stahl) and three nieces who were her blood kin. The nieces were three of her four surviving heirs; the nephew Stahl was the son of her sister Ola Mae Stahl, who was the other surviving heir. The construction of the will placing the note in the residuum disinherits testatrix’s four surviving heirs (with the exception of the possibility of a small amount of cash to testatrix’s sister, Ola Mae Stahl) and passes the bulk of testatrix’s estate to the residuary legatee. Clearly, that intention was not intended by testatrix, and would result in an unintended windfall to the residuary beneficiary. If it can be said the will is not clear on the question, then our conclusion testatrix died intestate as to the note is buttressed by the rule which calls for the construction in accordance with the laws of descent and distribution where an ambiguity exists. McMullen v. Sims, 37 S.W.2d 141, 143 (Tex.Com.App.1931).

The judgment is reversed, and the cause is remanded to the trial court for entry of judgment in accordance with this opinion.

      . The Attorney General was joined under the terms of Article 4412a, Vernon’s Tex.Civ.St., which requires his presence as a necessary party for and on behalf of the interests of the general public in any judicial proceeding brought to construe or contest a devise or bequest for charitable purposes.

      . The record does not show any activity by Martha Kasprzyk in this lawsuit after the transfer to District Court.

      . An annotated treatment of the development at common law of the doctrine of ademption, and of the various approaches used by the courts of our nation in applying the rule, may be found in Pepka v. Branch, 155 Ind.App. 637, 294 N.E.2d 141 (1973).


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    William D. HOOPER et al., Appellants, v. John T. RYAN, Appellee.
    No. 5996.
    Court of Civil Appeals of Texas, Waco.
    April 19, 1979.
    Rehearing Dismissed for Want of Jurisdiction May 24, 1979.
    A. D. Emerson, Shwiff, Caraway & Emerson, Dallas, for appellants.
    Bill Glaspy, Mesquite, for appellee.
   OPINION

McDONALD, Chief Justice.

Plaintiffs Hooper and Baker were payees of a $25,000. installment note, secured by lien on an apartment house, executed by co-makers defendant Ryan and C. K. Booker. The note was paid down to $24,000. and defaulted. Plaintiffs caused trustee’s sale to be had on the property and bought it in for $14,000., leaving a deficiency on the note of $10,000. Plaintiffs filed this suit for such deficiency against defendants Ryan and C. K. Booker. After such suit was filed Booker paid plaintiffs $300. cash plus a $3,000. installment note secured by real estate, and for such plaintiffs agreed to release Booker for “his liability in the judgment and his liability only”.

Plaintiffs then nonsuited as to Booker.

Trial was to a jury which found:

1) Plaintiff Hooper without the consent of defendant Ryan unjustifiably impaired collateral for the note.
2) Plaintiff Hooper without the consent of defendant Ryan released co-maker Booker without an express reservation of rights that Ryan had a right of recourse against Booker.

Plaintiffs moved for judgment non ob-stante veredicto. The trial court rendered judgment on such verdict that plaintiffs take nothing against defendant Ryan.

Plaintiffs appeal on 11 points contending:

1) Issue 1 is immaterial since impairment of collateral is not a defense available to a co-maker.
2) Issue 2 is immaterial since the payee of a note is not required to obtain the permission of a co-maker before releasing another co-maker, and is not required to make a reservation of rights expressly reserving the right of a co-maker to sue another co-maker.
3) The trial court erred in overruling plaintiffs’ motion for judgment non obstante.

Defendant Ryan and Booker were comakers of a note upon which there was a balance due of $10,000. Plaintiffs were payees of such note. Plaintiffs sued Ryan and Booker for the $10,000.; thereafter accepted $3,300. from Booker and “released him from his liability only”, and continued suit against defendant Ryan. The trial court rendered judgment plaintiffs take nothing.

A co-maker’s liability to a payee is joint and several; the release of one comaker of a joint obligation does not serve to release the other co-maker; and the payee of the note may sue any co-maker alone or jointly with the other principal obligor. One co-maker if prejudiced by action against him alone is entitled to contribution from the other co-maker for any excess of his prorata that he is compelled to pay. Gaines v. Gaines, (Tex.Civ.App. Fort Worth) NWH, 119 S.W.2d 427; Shield v. First Coleman National Bank (Tex.Civ.App.Austin), 160 S.W.2d 277; affirmed 140 Tex. 117, 166 S.W.2d 688; Palmer v. FDIC (Tex.Civ.App. Houston 1), NRE, 527 S.W.2d 788; Reed v. Buck, Tex., 370 S.W.2d 867; Bute v. Brainerd, 93 Tex. 137, 53 S.W. 1017; Article 1986 VATS.

Defendant Ryan asserts that Section 3.606 Uniform Commercial Code applies to a co-maker and precludes his liability to plaintiffs.

Section 3.606 UCC provides: Impairment of Recourse or of Collateral.

“1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder:
“a) without express reservation of rights releases * * any person against whom the party has to the knowledge of the holder a right of recourse * * *.
“b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse”.

Section 3.606 of the Uniform Commercial Code applies to sureties and not to co-makers. Wohlhuter v. St. Charles Lbr. & Fuel Co., 62 Ill.2d 16, 338 N.E.2d 179; Hallowell v. Turner 95 Idaho 392, 509 P.2d 1313. The court in Wohlhuter said:

“Defendants contend that the ‘intent and literal meaning’ of Section 3 — 606 of the Uniform Commercial Code is that the unjustifiable impairment of collateral serves to discharge any party to the instrument from liability and that in limiting its application to ‘known sureties’ the appellate court erred. * * *
“We agree with the appellate court that ‘On its face UCC Section 3 — 606 would appear to apply to any party to the instrument.’ * * We also agree that the defense of impairment of collateral under Section 3-606 was not available to defendants for the reason that they executed the note as co-makers’’.

Plaintiffs’ contentions are sustained.

The judgment of the trial court is reversed and judgment here rendered for plaintiffs for $6,700.

REVERSED AND RENDERED.

      . Emphasis added.


author: REYNOLDS, Justice.

text:
    SOUTHWESTERN PUBLIC SERVICE COMPANY, Appellant, v. Everett E. VANDERBURG et ux., Appellees.
    No. 8978.
    Court of Civil Appeals of Texas, Amarillo.
    April 23, 1979.
    Rehearing Denied May 21, 1979.

      Lemon, Close, Atkinson, Shearer & McCutcheon, Robert D. Lemon, Perryton, for appellant.
    Gassaway, Gurley & Sheets, Jody G. Sheets, Borger, for appellees.
   REYNOLDS, Justice.

Southwestern Public Service Company seeks reversal of the judgment rendered in its condemnation action to establish an easement for an electrical transmission line over 4.855 acres extending along one side of a section of land. SPS’s points-of-error contentions, which lead it to the conclusion that the jury’s verdict of $40,000 for the resulting reduction in market value of the remaining 623.965 acres cannot stand, do not present reversible error. Affirmed.

Everett E. Vanderburg and his wife, Louise Collins Vanderburg, own a tract of farmland in Hansford County, Texas, containing approximately 640 acres. The farm is burdened with an 11.18 acre railroad easement extending in a southwesterly to northeasterly direction across the section, and is improved with a brick home and barns situated on fifteen acres in the southeast corner and with an irrigation system. The land is used primarily for the growing of irrigated milo and wheat.

Southwestern Public Service Company brought this condemnation action to secure an easement forty feet wide and one mile long, embracing 4.855 acres, along the west boundary line of the Vanderburg property on which SPS constructed a high voltage electrical transmission line using six two-pole and two three-pole “H-frame” structures. SPS also sought the right of ingress and egress to the condemned strip, but not to the remainder of the farm.

Almost seven years later a jury was empaneled to determine the compensation for the easement taken and the resulting reduction in market value, if any, to the remaining land in the tract. Responding to the special issues submitted, the jury effectively found $1,500 as the value of the easement taken and $40,000 in reduction in market value to the remaining 623.965 acres.

Specifically, the jury found the before-taking value of the 4.855 acre strip to be $1,700 and the after-taking value to be $200. The jury also found that there was a reduction in the market value of the remainder because of the condemnation, and then found the before-taking value of the remainder to be $218,000 and the after-taking value to be $178,000.

Accepting the jury’s verdict, the trial court awarded SPS an easement on and a right-of-way to the 4.855 acre strip, and decreed that the Vanderburgs recover $41,-700 from SPS plus interest and all costs of court.

Appealing, SPS makes no complaint of the judgment amount for the 4.855 acre easement. Its nine points of error are directed to the $40,000 recovery for reduction in, and to the admission and denial of various items of testimony bearing on, the market value of the remainder of the property.

Appropriate to position the points is a summary of the testimony material to market values adduced at trial. Jim Davis, the Vanderburgs’ son-in-law who assists in farming the Vanderburg tract, testified, without assessing a dollar amount, that the market value of the entire section of land decreased because of the presence of the power lines. The reasons he gave for a decrease were difficulty in farming around the poles without causing damage to the farm equipment and hand digging rows among the poles for irrigation, all of which must be done four times a year; difficulty in harvesting with a combine among the poles; fear of an electrical charge in using aluminum irrigation pipe under the power lines; inability to effectively spray with herbicides and pesticides under and around the power lines, with the result that weeds, fertilized from nearby land, grew ten times greater than otherwise and a tremendous weed problem occurred, the crop underneath the line was nearly totally wiped out, and greenbugs reinfested the field; an inability to deep plow among the poles which tends to make the dirt blow; and the prevailing southwest winds blowing weeds and dirt from the easement area across the field, which can damage the crop and could affect the entire field. Furthermore, the presence of the power line poles interrupted plans to place underground pipe for irrigation for half a mile down the west side and, because it was not practical to place the pipe out in the field, the plans to irrigate some seventy to one hundred acres, which had not been irrigated, were abandoned although water was available. Davis acknowledged that the presence of the railroad easement substantially interferes with farming the land as a unit.

Ralph Blodgett, a Hansford County resident, gave testimony of market values. Blodgett, who operates an agri-related business with close personal contacts with farmers and land, owns some irrigated farms, and has leased others, in Hansford and Ochiltree Counties. He bought two farms, one irrigated and one dry land, in the vicinity of the Vanderburg property during the time this condemnation action was being pursued. He thought he was familiar with, and he attempts to keep up with, market values of land in this area. He declared he was familiar with market values of land in the vicinity of the Vanderburg section at the time of the condemnation. He has been on, has inspected, and was acquainted with the Vanderburg property which, in his opinion, was farmed to its best use as a unit.

Blodgett had an opinion as to the market value of the Vanderburg section both before and after the taking of the easement. In his opinion, the section would be worth $400 an acre without the railroad and, with the railroad, the before-taking value of the land was $350 an acre. After taking, the 4.855 easement strip was reduced in value by seventy (70%) percent, which he figured as $1,189.48 in damages; and the remaining 623.965 acres were damaged thirty (30%) percent, which he calculated to equal $65,-516.32 in damages.

Questioned as to the basis for his opinions, Blodgett enumerated the matters he had taken into consideration. He listed an intrusion upon one’s privacy for a permanent easement, the unsightly appearance of the power line structures, and the deprivation of construction sites where the power line existed. He said that the double-pole structure is very difficult to farm around, posing a danger, if not destruction, to high priced farm equipment; the land is impossible to deep break and is almost impossible to irrigate through the structures; the structures pose a danger to aerial spraying and present a weed and Johnson grass problem; and the prevailing southwest winds blowing across the easement to the rest of the section pose a problem of the cross-pollination of Johnson grass with other grain sorghums in the area.

However, Blodgett knew of no specific instance where a tract of land sold for less than its market value or was rented for less because of the presence of a power line. Neither did he know of a single instance where a taxing agency had given a tract of land a lesser valuation than it otherwise would because of the presence of a power line of any type.

Bill C. Moore, an Amarillo licensed real estate broker and appraiser who spent some ninety percent of his time doing appraisal work for clients, gave opinion testimony of market values. The basis for his opinions was the comparative market data approach, consisting of analyses of comparable sales of farmland similar to and in the general area of the Vanderburg property, together with his inspection of the Vanderburg property on three or four occasions. Some of the comparable sales involved land with power lines and land without power lines.

It was Moore’s opinion that the Vander-burg section was worth $300,000, computed at $350 per acre with an additional $81,000 for the improvements. His opinion was that the 4.855 acre easement had a before-taking market value of $1,700 and an after-taking market value of $200. It was his further opinion that the remaining land was not affected by, and did not decrease in market value because of, the power line easement. He knew of no instance where the market value of the remainder of a tract of land was affected or reduced by the construction of power lines along one side of the property.

Initially, SPS challenges the admission of the testimony of Ralph Blodgett, insisting that it was incompetent and inadmissible, and that without it there was no evidence to raise a fact issue as to a reduction in value of the remainder of the Van-derburg property. SPS argues that Blod-gett’s testimony was nothing more than naked conclusions, speculative and conjectural in nature. The responses of “I think so” and “I attempt to” Blodgett made to questions on direct examination inquiring of his familiarity and whether he keeps up with market values of land in the area are pointed to by SPS as indicative of his lack of knowledge about market values so as to render him unqualified to testify. To further evidence his lack of qualification, SPS notes Blodgett’s admission on cross-examination that he knew of no instance when a piece of land sold at less than market value, or was rented for less, or had a lower tax valuation because of the presence of power lines on the land.

Whether a witness is qualified to testify regarding market value of property is largely within the sound discretion of the trial court, Urban Renewal Agency of City of San Antonio v. Abdo, 562 S.W.2d 872, 875 (Tex.Civ.App. — San Antonio 1978, writ ref’d n. r. e.), and there is no abuse of discretion in admitting the testimony if the witness’s qualifications meet the legal test. MAPCO, Inc. v. Farrington, 476 S.W.2d 50, 55 (Tex.Civ.App. — Amarillo 1971, writ ref’d n. r. e.). Generally, a witness will be qualified to give his opinion about market value if he has knowledge of the value standards of the class of property to which the subject property belongs. In this regard, the witness must have a knowledge of market value in the vicinity of the subject property based at least in part on personal observation and not solely on hearsay, and, additionally, he must have a knowledge of the particular property to be valued. State v. Sides, 348 S.W.2d 446, 450 (Tex.Civ.App.— Dallas 1961, writ ref’d n. r. e.). A statement by the witness that he knows the land in question and is acquainted with the market value is sufficient to authorize the reception of his valuation testimony. Urban Renewal Agency of City of San Antonio v. Abdo, supra, at 875.

Measuring Blodgett’s testimonial qualifications by the principles just expressed, we cannot say the trial court abused its discretion in admitting Blodgett’s testimony. He testified that he was familiar with the market value of land in the vicinity of the Vanderburg section, and that he had a knowledge of the property itself. The two responses by Blodgett that he “thinks” he is familiar with market values and that he “attempts” to keep up with market values in the area are not, contrary to SPS’s insistence, evidence of lack of fitness to testify; instead, they are, at most, minor defects in Blodgett’s qualification to testify, and they affect the weight to be given his testimony rather than its admissibility. Grayce Oil Co. v. Peterson, 128 Tex. 550, 98 S.W.2d 781, 783 (1936). See, also, MAPCO, Inc. v. Jenkins, 476 S.W.2d 55, 63 (Tex.Civ.App. — Amarillo 1971, writ ref’d n. r. e.). Similarly, Blodgett’s inability on cross-examination to relate an instance when the presence of power lines caused a piece of land to be sold below market value, or to be rented for less, or to have a lower tax valuation, also goes to the weight of Blodgett’s testimony, but does not bar its admissibility. State v. Sides, supra, at 452.

Thus, the trial court’s determination that Blodgett was qualified to testify and that his testimony of market values was admissible must be upheld. The testimony of Blodgett, conflicting with that of Moore, constitutes some evidence of a reduction in the market value to the remainder. As a consequence, the trial court was required to submit the reduction-in-value issues to the jury, Tex.R.Civ.P. 277, particularly because the question of a reduction in market value of the remainder as raised by the conflicting opinion testimony is peculiarly one for the fact finding body. Texas Pipe Line Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151, 156 (1950).

Given some evidence of probative force to support the jury’s findings, SPS next submits that the jury’s verdict of a $40,000 reduction in market value to the remainder is so against the great weight of the testimony as to be manifestly unfair and unjust and is clearly excessive. The immediate thrust of SPS’s argument is that Moore’s testimony, which is that there was no reduction in market value of the remainder, so far outweighs Blodgett’s testimony to the contrary that the verdict cannot stand.

The ultimate inquiry, then, is the reasonableness or excessiveness of the verdict within the limits of the testimony. That testimony consisted not only of the opinions of Moore and Blodgett as to values, but the reasons they, together with Davis, gave as predicates to justify the opinions of values.

In matters of the value and depreciation in value, if any, of the land in question, it is proper to admit evidence of the opinions of witnesses acquainted with the market values of the land, and the weight of any one opinion will depend in a great measure upon the witness’s knowledge of values and the facts he states for his opinion. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 200, reh. denied, 126 Tex. 604, 89 S.W.2d 979 (1936). Because all opinion of depreciated market value is, at best, something of a speculation, Texas Pipe Line Co. v. Hunt, supra, at 156, any fact which may reasonably affect the value of the land which remains after the taking of the easement is proper for the jury’s consideration. State v. Carpenter, supra, at 197-98.

Conformably, the jury, in determining whether there was a reduction in market value of the remainder, was entitled to consider, with other testimonial facts, the testimony that the power line: is unsightly, Texas Power & Light Co. v. Jones, 293 S.W. 885, 886-87 (Tex.Civ.App. — Dallas 1927, writ ref’d); produces inconvenience in cultivation, Hall v. Wilbarger County, 37 S.W.2d 1041, 1047 (Tex.Civ.App. — Amarillo 1931), aff’d on another ground, sub nom. Wilbarger County v. Hall, 55 S.W.2d 797 (Tex. Comm’n App.1932), as well as difficulty in farming the land as one unit around power poles where weeds would grow, Southwestern Public Service Co. v. Goodwine, 228 S.W.2d 925, 928-29 (Tex.Civ.App. — Amarillo 1949, writ ref’d n. r. e.); causes a weed hazard with Johnson grass growing there and blowing over the farm, results in a potential for wrecking farm machinery around poles, interferes with crop spraying by airplane with poorer crop results, and poses a danger of electrocution. Texas Electric Service Company v. Etheredge, 324 S.W.2d 322, 323 (Tex.Civ.App. — Eastland 1959, no writ); Texas Electric Service Company v. Merket, 300 S.W.2d 167, 169-70 (Tex.Civ.App. — Eastland 1957, no writ). The specific elements testified to as resulting from the easement taking and relating to and tending to affect the market value were admissible, not as the measure of damages, but as elements to enable to jury to arrive at the correct market value. MAPCO, Inc. v. Holt, 476 S.W.2d 64, 69 (Tex.Civ.App. — Amarillo 1971, writ ref’d n. r. e.).

The object of the conflicting evidence adduced on trial was to place before the jury all the facts essential to a just decision of the merits of the controversy so that the rights of the parties may be justly determined. See State v. Carpenter, supra, at 200. The jurors in weighing the opinion testimony and reaching their verdict may— and, as some authorities state, to act intelligently must — give effect to the testimony by applying to it, and considering it in the light of, their own general knowledge and experience on the subject of the inquiry. Simmonds v. St. Louis B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332, 335 (1936). The jury, presumably qualified to be fair and impartial and representing a cross-section of the conscious of the community, was in the best position to determine from all of the evidence the proper verdict. Having returned a verdict that is well within the limits of the values testified to by the witnesses, the jury’s findings are binding, City of Fort Worth v. Estes, 279 S.W.2d 687, 688 (Tex.Civ.App. — Fort Worth 1955, writ ref’d n. r. e.), and we are not in the position to say the findings are against the great weight of the testimony.

Notwithstanding a verdict well within the limits of the testimony of values, SPS offers the testimony of Glenn Roy given on the hearing of its motion for new trial to demonstrate that the verdict still is excessive. Roy, who is in charge of acquiring SPS’s right-of-way for transmission lines, testified in essence that the $40,000 award for damages to the remainder stands alone in its excessiveness and that the Vander-burgs offered to settle for $8,600 shortly before the cause went to trial.

Aside from the fact that Roy’s testimony was centered on the costs of acquiring various rights-of-way, the admissible portion of his testimony was not offered for the jury’s consideration. In passing on SPS’s complaint of excessiveness, we are limited to the evidence the jury heard and considered to reach its verdict, and we may not second-guess the jury on the basis of evidence not presented for its consideration. Compare Kerwin v. Mead, 229 S.W. 677, 678 (Tex.Civ.App. — El Paso 1921), rev’d, 241 S.W. 119 (Tex.Comm’n App.1922, holding approved). Cf., also, United States Fidelity & G. Co. v. Bimco Iron & M. Corp., 455 S.W.2d 828, 831 (Tex.Civ.App. — Houston [1st Dist.] 1970, aff’d, 464 S.W.2d 353 (Tex. 1971), (holding that testimony introduced in a bill of exception hearing cannot be considered by the court in determining the sufficiency of the evidence to support the answers the jury made to the issues submitted.)

The state of the evidence we review is different from that in Roberts v. State, 350 S.W.2d 388 (Tex.Civ.App. — Dallas 1961, no writ), upon which SPS relies, where one of the jury’s findings of value was far greater than the value given by any witness. Here, the jury reached a verdict on findings of value well within the limits of the testimony before it, and we cannot substitute our opinion of values for those the jury found were the most reasonable under the evidence, Trinity River Authority of Texas v. Barrett, 497 S.W.2d 91, 96 (Tex. Civ.App. — Houston [1st Dist.] 1973, no writ), particularly where, as here, there was competent evidence to support the jury’s verdict. Tennessee Gas Transmission Co. v. Dishman, 303 S.W.2d 471, 484 (Tex.Civ.App. —Beaumont 1957, writ ref’d n. r. e.).

Lastly, SPS urges reversible error in the trial court’s refusal to admit the testimony of Dorsey Schad, a farmer, on the basis of a violation of Tex.R.Civ.P. 267. The rule was invoked by Vanderburgs’ counsel before the receipt of any testimony. Bill C. Moore, who was present, was sworn and placed under the restrictions of the rule. Schad had not been called as a witness, was not present in the court room and, consequently, he was not “placed under the rule.”

On the morning of the second day of the trial, Moore was requested by SPS’s attorneys to talk with Schad at 4 p. m. that day. The purpose of the conversation was to confirm Schad’s purchases and sales of land and to determine whether Moore would use them as comparable sales in his testimony. An hour or two before Moore and Schad were to meet, SPS’s attorneys applied for a subpoena for the appearance of Schad as a witness on behalf of SPS.

Shortly after Moore arrived at Schad’s home and they had begun a discussion of Schad’s involvement in land purchases, one of SPS’s attorneys notified Schad by telephone that the subpoena would be served. Their conversation continued and, some twenty or thirty minutes before its end, the subpoena was served on Schad. During the conversation, Moore quizzed Schad in explicit detail about the nature of the land sales, the presence of H-frame structures, and whether and how the easement affected the price for the land. Both Moore and Schad said that they did not discuss any testimony either might give.

When Schad’s testimony, the primary thrust of which was his opinion that the power line easement would not affect the remainder of the property, was tendered the following day to rebut the valuation testimony of Blodgett, it was refused upon the Vanderburgs’ objection that the rule had been violated. Schad’s testimony, which also included his opinion that the railroad easement would be a lot worse than the power line easement, was then offered for the limited purpose of comparing how the tract was affected by a railroad right-of-way versus a power line easement. This offer also was refused.

When passing on the refusal of a trial court to allow testimony after Rule 267 has been invoked and the proffered witness has not been placed under it, the question is not whether the action of the court was required, but whether the court abused its discretion. An abuse of discretion is not shown by the fact that the excluded testimony is vital to one party’s cause, Southwestern Bell Telephone Company v. Johnson, 389 S.W.2d 645, 647-48 (Tex.1965), nor by the fact that the trial court decided a matter within its discretion in a manner different than the appellate court would have decided it. Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959). In reviewing the issue, the appellate court may not substitute its own judgment for that exercised by the trial court, but must decide only whether the trial court’s decision was arbitrary or unreasonable. Landry v. Travelers Insurance Company, 458 S.W.2d 649, 651 (Tex.1970).

Within these principles and under the circumstances of this cause, we cannot say the trial court acted arbitrarily or unreasonably in refusing to receive the testimony of Schad. The exclusion of the testimony for either the primary or limited purpose for which it was tendered rests upon the same ground. Southwestern Bell Telephone Company v. Johnson, supra, at 648. It was within the discretionary authority of the trial court to consider all of the facts, including the facts that the circumstances calling for the exclusion of Schad’s testimony were controlled by SPS and that, in the main, the excluded testimony was merely cumulative in nature to that given by Moore. Accordingly, we are not prepared to say that the trial court abused its discretion.

SPS has not presented reversible error by any point of error. All points are overruled.

The judgment of the trial court is affirmed.

      . The amount of the judgment, being fixed at $200 more than the jury’s verdict, apparently was calculated without credit for the after-taking market value of the easement strip; but, as noted, Southwestern Public Service Company makes no complaint in this regard.

      . For health reasons and upon his doctor’s recommendation, Everett E. Vanderburg did not attend the trial. ,

      . Southwestern Public Service Company also asserts there was insufficient evidence to raise a fact issue regarding the value reduction of the remainder. Such a contention can only be treated as a “no evidence” point. Mobil Pipeline Company v. Goodwin, 492 S.W.2d 608, 611 (Tex.Civ.App. — Houston [1st Dist.] 1972, writ refd n. r. e.). Accordingly, the assertion is treated as a “no evidence” point.

      . Tex.R.Civ.P. 267 provides in part: “At the request of either party, in a civil case, the witnesses on both sides may be sworn and removed out of the court room to some place where they can not hear the testimony as delivered by any other witness in the cause. . Witnesses, when placed under the rule, shall be instructed by the court that they are not to converse with each other or with any other person about the case other than the attorneys in the case, except by permission of the court, and that they are not to read any report of or any comment upon the testimony in the case while under the rule.”

      . Technically, a prospective witness who has not been placed under the rule cannot, by the very terms of the rule, violate it; but, once the rule is invoked, its purpose can be evaded by a prospective witness who has not been placed under the rule. Nevertheless, the rule may extend to either a violator or an evader. See Southwestern Bell Telephone Company v. Johnson, 389 S.W.2d 645 (Tex.1965), for the holding that the court has discretionary authority in a proper setting after the rule has been invoked to exclude the testimony of one who has not been placed under the rule.


author: DODSON, Justice.

text:
    Kenneth SANDRIDGE, et ux., Appellants, v. James MERRITT, et ux., dba Merritt Construction Company, Appellees.
    No. 8964.
    Court of Civil Appeals of Texas, Amarillo.
    April 23, 1979.

      J. Jerry Merchant, Wayne B. Barfield, Amarillo, for appellants.
    Art B. Lara, Jr., Amarillo, for appellees.
   DODSON, Justice.

On April 18, 1977, James and Joy Merritt, d/b/a Merritt Construction Company, submitted a written proposal to Kenneth San-dridge and his wife Darlene, hereafter called defendants, to repair water damage and make additional improvements to defendants’ residence for $3,772. Defendants accepted the proposal. Upon completion of all the work in May 1977, a dispute arose over the price. Defendants contended that amount due was approximately $2,900. Merritt Construction Company demanded $3,780.08 and defendants refused payment.

On June 29, 1977, Merritt Construction Company sued defendants under three alternative theories: sworn account, breach of contract, and quantum meruit. Defendants answered and filed a cross-action for recission of the contract and damages. Defendants alleged that Merritt Construction Company violated state and federal truth in lending laws. Judgment was entered on jury answers to special issues. Merritt Construction Company was awarded $3,780 plus interest and attorney’s fees. Defendants were ordered to take nothing in their cross-action. Defendants appeal. Affirmed.

The jury found that the defendants owed Merritt Construction Company $3,780 for services rendered, materials furnished, and work performed on the defendants’ home. Defendants do not attack this jury finding.

Defendants contend, however, that the trial court erred in entering judgment for Merritt Construction Company because it violated Tex.Rev.Civ.Stat.Ann. art. 5069-14.14 (Vernon Supp.1978-1979); 15 U.S.C. §§ 1631, 1635 (Supp.1979); and 12 C.F.R. § 226.9 (1974 & Supp.1979). Defendants specifically assert that the parties and transaction are subject to these statutes, that the statutes require Merritt Construction Company to disclose to defendants their right under these statutes to rescind the transaction until midnight of the third business day following the consummation of the transaction, and that this disclosure has not been made. Defendants further maintain that because Merritt Construction Company has failed to make the required disclosure they are entitled to rescind the contract, retain the benefits thereunder, and recover damages under Tex.Rev.Civ. Stat.Ann. art. 5069-14.14, 14.19 (Vernon Supp.1978-1979); 15 U.S.C. §§ 1635, 1640 (Supp.1979); and 12 C.F.R. § 226.9 (1974 & Supp.1979).

Each of the provisions relied upon defendants apply to specified credit transactions between a consumer and a creditor. Merritt Construction Company asserts that defendants failed to conclusively prove it was a creditor within the meaning of these provisions and therefore the provisions are inapplicable to the case at bar.

The Texas statute defines “creditor” as follows:

‘Creditor’ refers only to creditors who regularly extend or arrange for the extension of credit for which the payment of a finance charge is required whether in connection with loans, sales of property or services, or otherwise. .

Tex.Rev.Civ.Stat.Ann. art. 5069-14.01(6) (Vernon Supp.1978-1979). The federal statute defines “creditor” in a similar manner:

The term ‘creditor’ refers only to creditors who regularly extend, or arrange for the extension of, credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise . (emphasis added).

15 U.S.C. § 1602(f) (Supp.1979). See a iso 12 C.F.R. § 226.2(s) (Supp.1979). To determine whether Merritt Construction Company comes within these definitions, we must ascertain whether it regularly extends or arranges for the extension of credit for which the payment of a finance charge is, or in the case of the federal statute may be, required.

“Credit” is defined in both the state and federal statutes as “the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment.” Tex.Rev.Civ.Stat.Ann. art. 5059-14.01(5) (Vernon Supp.1978-1979); 15 U.S.C. § 1602(e) (1974). See also 12 C.F.R. § 226.2(q) (Supp.1979). Regarding a “finance charge,” the statutes provide:

[T]he amount of the finance charge in connection with any consumer-credit transaction shall be determined as the sum of all charges payable directly or indirectly by the person to whom the credit is extended and imposed directly or indirectly by the creditor as an incident to the extension of credit, including any of the following types of charges which are applicable;
1) interest, time-price differential, and any amount payable under a point, discount, or other system of additional charges;
2) service or carrying charge;
3) loan fee, finder’s fee, or similar charge;
4) fee for an investigation or credit report; or
5) premium or other charge for any guarantee or insurance protecting the creditor against the obligor’s default or other credit loss.

Tex.Rev.Civ.Stat.Ann. art. 5069-14.04 (Vernon Supp.1978 — 1979); 15 U.S.C. § 1605 (1974). See also 12 C.F.R. § 226.4 (1974).

Defendants maintain for the first time on appeal that a finance charge arose by operation of law under Tex.Rev.Civ.Stat.Ann. art. 5069-1.03 (Vernon 1971), which provides:

When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable .

Defendants failed to plead that a finance charge might arise by operation of law under this statute and made no such contention in the trial court. The defendants, however, did contend in the trial court that a fifteen percent figure in the contract was a finance charge under the statute.

At trial, the evidence established that fifteen percent of the total labor and material costs was added to arrive at the total cost for the construction. It was undisputed at trial that this fifteen percent addition represented other expenses and profit. Defendants do not urge on appeal that the fifteen percent addition constituted a finance charge.

In essence, the defendants failed to establish a finance charge under the one theory (fifteen percent figure) and now attempt to assert the existence of a finance charge under a completely new theory on appeal. In this connection, the defendants are limited to the theory upon which their case was tried in the trial court and they may not urge this new theory for the first time on appeal. See American Mut. Liability Ins. Co. v. Parker, 144 Tex. 453, 191 S.W.2d 844, 848 (1945); Phillips v. Inexco Oil Company, Inc., 540 S.W.2d 546, 550 (Tex.Civ.App.— Tyler 1976, writ ref’d n. r. e.); Brown-McKee, Inc. v. Western Beef, Inc., 538 S.W.2d 840, 843 (Tex.Civ.App. — Amarillo 1976, writ ref’d n. r. e.).

Defendants’ case was submitted on the following special issues:

SPECIAL ISSUE NO. 3:
Do you find that Defendant, Darlene Sandridge has suffered mental anguish as a result of transactions with Plaintiff, Merritt Construction Company relating to the residence of Darlene Sandridge?
Answer: “We do” or “We do not.”
ANSWER: We do not
SPECIAL ISSUE NO. 4:
What sum of money, if paid now in cash, do you find would fairly and reasonably compensate Defendant, Darlene Sandridge, for her mental anguish found by you in answer to the preceding Special Issue No. 3, if any you have found?
Answer in dollars and cents, if any.
ANSWER: $ None
SPECIAL ISSUE NO. 5:
Do you find that Defendant, Kenneth Sandridge, has suffered mental anguish as a result of transactions with Plaintiff, Merritt Construction Company, relating to the residence of Kenneth Sandridge?
Answer: “We do” or “We do not.”
ANSWER: We do not
SPECIAL ISSUE NO. 6:
What sum of money, if paid now in cash, do you find would fairly and reasonably compensate Defendant, Kenneth Sandridge, for his mental anguish found by you in answer to the preceding Special Issue No. 5, if any you have found?
Answer in dollars and cents, if any.
ANSWER: $ None

No other special issues were requested or submitted.

The defendants failed to request and obtain favorable findings on any of the essential elements of their alleged causes of action. The provisions relied upon by the defendants prescribe the available remedies for violations of the statutes. These remedies do not include damages for mental anguish. The defendants also failed to conclusively establish that Merritt Construction Company is a “creditor” within the meaning of the state and federal truth in lending statutes. Under these circumstances we must conclude that the defendants waived their theories of recovery. Tex.R.Civ.P. 279.

In summary the defendants’ points one through eight are overruled. Accordingly, the judgment of the trial court is affirmed.

      . The agreement was accepted by John E. and Darlene Holloway, a/k/a Darlene Sandridge.

      . Defendants admit that this is not a case involving the extension of credit which is payable by agreement in more than four installments.

      . The federal statute differs from the quoted statute in punctuation only.

      .While relying on the language of Tex.Rev.Civ. Stat.Ann. art. 5069-1.03 (Vernon 1971), defendants cite § 1.02 of this statute.


author: WARD, Justice.

text:
    Vicki K. SHAPLEY, Appellant, v. TEXAS DEPARTMENT OF HUMAN RESOURCES (Formerly Texas Department of Public Welfare), Appellee.
    No. 6756.
    Court of Civil Appeals of Texas, El Paso.
    April 25, 1979.

      James W. Maxfield, El Paso, for appellant.
    Mark Berry, El Paso, for guardian ad litem.
    Jerry Severson, El Paso, for intervenors.
    John L. Hill, Atty. Gen., David M. Kendall, Jr., 1st Asst. Atty. Gen., R. Steve Bick-erstaff, David H. Young, Asst. Attys. Gen., Austin, Robert Hedicke, Gary A. Reaves, J. Todd Southern, Asst. County Attys., El Paso, for appellee.
   OPINION

WARD, Justice.

The natural mother alone appeals from a judgment which terminated the parental rights of the mother and father of their eighteen-month-old child, the judgment naming the Texas Department of Human Resources as the temporary managing conservator. The father’s physical abuse of the child triggered the proceedings. We reverse and remand.

The testimony in the case concerning the parties is limited. The child was born in Michigan in early 1976. At that time the child’s mother, Vicki Shapley, then approximately seventeen years old, was living with her own mother. Wayne Shapley, the father of the child, was in the Army and stationed overseas. By August, 1977, Wayne had returned to the United States, and was stationed at Fort Bliss living with Vicki in El Paso with the child. On August 14, 1977, the child, then seventeen months old, was taken to the Emergency Room of William Beaumont Army Medical Center by his mother suffering from bruises and abrasions, and which injuries had been inflicted on the child the night before. The mother was hysterical, reported her husband was a heavy drinker, and that he had beaten the child the night before the admission as well as on another occasion one week before. The mother delayed in reporting the second occurrence until the day following, and after the husband had gone to work. Attending physicians described numerous bruises and superficial abrasions. There were bruises and abrasions to the child’s nose and ears. There were no broken bones.

As a result of the child’s injuries, a Suit for Protection of Child in Emergency was filed, and the Texas Department of Human Resources was appointed as temporary managing conservator of the child. Thereafter, a suit to terminate the parental rights of Vicki Shapley and her husband, Wayne Shapley, was filed and again the Texas Department of Human Resources was appointed temporary managing conservator for the child. The termination petition was based upon Tex. Family Code Ann. sec. 15.02(1)(D) and (E) and the “best interest” provision in sec. 15.02(2) (Supp.1978-1979). Thereafter, hearings were held on October 27, November 9, November 30, and December 1, it appearing from the final judgment that all of the -hearings were a part of a final trial on the merits, though the appealing mother disagrees with this statement. At the time of the November 9 hearing, Mrs. Allen Nieboer of Michigan, maternal grandparent of the child, and her husband were permitted to intervene with her request that she and her husband be made permanent managing conservators of the child.

After the original petition was filed, Army medical doctors and counselling personnel, together with counselors from the Texas Department of Human Resources, all acting as a child protective case management team, began counselling sessions with the Shapleys, and as a result the group made its recommendations to the Court at the first hearing on October 27 that the child should be temporarily returned to the parents under court ordered supervision until June, 1978, the date Shapley was to be discharged from the Army; that until that date and a final determination, the parties were to continue with marital and child counselling sessions; that the counselling personnel would continue with unannounced home visits, and that the child would be examined twice monthly by Army physicians. At the conclusion of the first hearing, the Court ordered further social studies to be performed and continued the child’s custody in the Department of Human Resources. At the conclusion of the second hearing, the Court ordered that a social study be performed concerning the background of the maternal grandparent. At the third hearing, it was the final recommendation of the medical and investigating personnel that the parental authority of the parents be permanently terminated and that the Texas Department of Human Resources be appointed the managing conservator for the child. Thereupon, the Court entered its final decree terminating the parental authority of the parents, and from that order the mother has appealed.

The mother’s first point concerns the Court’s refusal to grant her request for a jury trial, the request not being made until November 8th. Her position is that the first hearing on October 27 was one of a temporary hearing and not one on the merits. The record, including the final judgment, reflects that the final trial on the termination proceedings started on October 27 and for various reasons was thereafter continued until finally concluded on December 1st. The jury request was not timely made. Tex.R.Civ.P. 216. The point is overruled.

The next two points complain of the refusal of the trial Judge to grant Appellant’s motion that he disqualify himself after he had made certain statements to the newspaper reporters, and had requested that the District Attorney investigate the case for criminal prosecution. Apparently at that time the District Attorney’s office had already investigated the case and declined prosecution. Testimony shows that the District Judge, immediately after the first hearing, had discussed the pending case with a reporter of one of the local newspapers and informed him that a lighted cigarette had been shoved up the nose of the child, and had further given his opinion that the child had been tortured and that the ear of the child had been nearly ripped off. Two of these inflammatory opinions were not reflected by any evidence in the case, the medical opinion being to the effect that the bruises and abrasions suffered by the child while severe were only of a superficial nature. Following the Judge’s meeting with the reporter, it appeared that numerous articles appeared in the local newspaper concerning the case and the parents. The mother argues that by these actions the trial Judge in effect put himself in the position of counsel in the case within the terms of Tex.Const. art. V, sec. 11. She further argues that his action reflected a bias to the extent that she was not able to obtain a fair trial and that she was entitled to a mistrial. Prior to the effective date of the Code of Judicial Conduct on September 1, 1974, the grounds enumerated by the Constitution were held to be both inclusive and exclusive and mere bias and prejudice were not disabling factors. Chilicote Land Company v. Houston Citizens Bank & Trust Company, 525 S.W.2d 941 (Tex.Civ.App.— El Paso 1975, no writ). Now under the Code, the subject of a disqualification has been broadéned and the direction has been made that a judge should disqualify himself in a proceeding in which his. impartiality might reasonably be questioned. The direction is set out in Canon 3, subdivision C. See Title 14 Appendix.

The direction is specific under subpara-graph (1) that he should disqualify where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed facts concerning the case. The problem here presented is that the trial Judge, after the proceedings had started, gave public vent to a bias and prejudice which he had acquired from hearing the evidence and seeing the exhibits introduced into evidence and not from any independent knowledge of the events. Such can be a natural reaction. But the Code of Judicial Conduct rightfully condemns such comments to the press during the actual trial. Canon 3 A(6) is as follows:

A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.

After the violation, the parties could only thereafter entertain a feeling that the scales would be unfairly balanced against them during the remainder of the trial. See 1 McDonald, Texas Civil Practice, sec. 1.22.1 at 95. Unethical conduct, however, is not necessarily a legal ground for reversal, and the points are overruled.

We note that the trial Judge, in overruling the motion to disqualify himself, ignored the command of Art. 200a, sec. 6, Tex.Rev.Civ.Stat.Ann. (Supp.1978-1979), which states the following:

A district judge shall request the Presiding Judge to assign a judge of the Administrative District to hear any motions to recuse such district judge from a case pending in his court.

Since no point has been presented to us that the Judge failed to abide by the command, we will continue.

The mother’s final two points attack the legal and factual sufficiency of the evidence supporting the parental termination order. In addition to what has been discussed, we note that the mother always cared for her child. The record is to the effect that all acts of abuse were done by the child’s father. The record does show that the mother waited one day before taking the child to the hospital after the child was beaten by the father on August 13, 1977. In November, the mother filed suit for divorce against the husband. In November, the husband again become intoxicated, pushed the mother around, and apparently abused the family’s pet puppy. It was the opinion of all witnesses who interviewed the mother after the first hearing that they believed it was unlikely that the mother would remain separate and apart from her husband, and there was a danger that there would be future injury if the child was around his father. On this testimony we overrule the no evidence point.

After considering all the evidence, we sustain the mother’s insufficient evidence point. We do this because of the caution demanded by the Supreme Court in termination cases under Section 15.02. Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976); Holley v. Adams, 544 S.W.2d 367 (Tex.1976); Schiesser v. State, 544 S.W.2d 373 (Tex.1976). In Wiley v. Spratlan at 352, the Supreme Court ruled that actions which break the ties between a parent and child can never be justified without the most solid and substantial reasons; that the proceedings should be strictly scrutinized; and that the State bears a serious burden of justification before intervention in this final act of termination. Under these directions, we hold the evidence insufficient and for the following reasons. It was only because of the mother’s love for her child that the beating was ever called to the attention of the authorities in the first place. Her delay could well have been caused by her own fear of her husband. At the time of the first hearing on October 29, it was the recommendation of all witnesses that the child be returned to the mother. After the newspaper publicity, the investigators testified that the two parents reported having received threatening telephone calls; that the parents then became withdrawn and uncooperative with the authorities. This would be a normal reaction by this mother in her position where the newspaper publicity was initiated by the trial Judge sitting on her case. The caseworker most closely connected with the case noted that it could have been her own reaction to the newspaper publicity that caused her to change her mind from her first conclusion that the mother retain the custody of the child. And finally, we note that both the County Attorney and the child’s guardian ad litem recommended to the trial Judge that the parental right of the mother not be terminated at the time, but that the maternal grandmother be appointed the managing conservator, that the natural mother be made the possessory conservator, and that only the parental rights of Mr. Shapley be terminated. We view the record as unsatisfactory as far as termination of the mother’s rights were concerned. Johnson v. Jefferson County Child Welfare Unit, 557 S.W.2d 569 (Tex.Civ.App. — Beaumont 1977, no writ).

Insofar as it permanently terminated the parental authority of Vicki Shapley, the judgment is reversed and is hereby remanded for a new trial as to Vicki Shapley alone.


author: YOUNG, Justice.

text:
    HOCHHEIM PRAIRIE FARM MUTUAL INSURANCE ASSOCIATION, Appellant, v. Bobbie L. CAMPION et ux., Appellees.
    No. 1346.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 26, 1979.
    Rehearing Denied May 17, 1979.

      G. Thomas Coghlan, San Antonio, Gus J. Strauss, Jr., Gaus & Strauss, Yoakum, for appellant.
    Roger M. Dreyer, Perkins, Dreyer & Rather, Gonzales, for appellees.
   OPINION

YOUNG, Justice.

Bobbie L. Campion and wife Gladys L. Campion, appellees, sued Hochheim Prairie Farm Mutual Insurance Association, appellant, for recovery under the terms of a fire and extended coverage (including hail) insurance policy, after two poultry houses covered by the insurance policies were damaged in a hailstorm. The primary issue on appeal is whether the trial court erred in refusing to allow Hochheim Prairie to introduce evidence that the builder of the two poultry houses replaced both of the roofs free of charge after the hailstorm and thus whether the recovery should be restricted to hail damage to the walls of the buildings. We find that the trial court incorrectly .excluded this evidence and accordingly reverse and remand this case for a new trial.

The record which includes a statement of facts fairly reflects the following events. On December 18, 1975, the Campions entered into a written contract with Wilson Buildings of San Antonio, Texas, for the construction of two poultry houses on their property in Gonzales County, Texas. Generally, the contract obligated Wilson to construct the poultry houses in a workmanlike manner and further guaranteed the roofs of such structures from perforation by hail for a period of fifteen years. Effective January 6, 1976, appellant, Hochheim Prairie, issued two policies of insurance to the Cam-pions covering losses to the poultry houses due to, among other things, hail damage.

While Wilson Buildings was completing the construction of the poultry houses in question and before the Campions made final payment to Wilson Buildings, the buildings were damaged by a hailstorm on April 7,1976. The evidence is conflicting as to whether or not the roofs were perforated. It is undisputed, however, that Wilson Buildings replaced both roofs after the hailstorm and did not charge the Campions any money in addition to that agreed upon in the original contract for the buildings.

The testimony also shows that the hailstorm caused extensive damage to the north, west and east sides of the buildings. In particular, plastic curtains covering many of the ventilating windows were torn and ripped by the hail. In this connection, Mr. Campion testified that the fair market value of the buildings prior to the hailstorm was $28,000 and that the fair market value of the buildings after the hailstorm was $14,000. Although Mr. Campion never stated what percentage of the total decrease in fair market value was due to the damage to the roof, he did state that it was his opinion that the damage to the roof was worth $12,000.

In addition to Mr. Campion’s testimony, Mr. Lawrence Kridler, insurance adjuster for Hochheim Prairie, testified about the condition and value of the buildings. He said that the fair market value of the poultry houses before the storm was $30,000 and that their fair market value after the storm was somewhere between $26,000 and $28,-000. Mr. Kridler did not apportion the amount of decrease in fair market value between the damage to the roof and the damage to the walls.

The evidence indicates that at the time of trial, though the damaged roofs had been repaired, the damage to the walls and plastic window covers had not been repaired.

This case was tried to a jury which found that the fair market value of the buildings immediately before the hail damage was $28,000 and that the value immediately after the hail damage was $14,000. Appellant filed a motion for judgment notwithstanding the verdict contending that the Cam-pions had sustained no legal loss. The motion was overruled and the trial court entered judgment that the Campions recover $14,000 from Hochheim Prairie.

Hochheim Prairie filed a motion for new trial claiming error in excluding evidence establishing that the appellees had sustained no loss by the damage to the roof and also that there was no evidence of a legal loss and that the trial court erred in overruling its motion for judgment notwithstanding the verdict. Hochheim Prairie’s motion for new trial was overruled.

Appellant brings three points of error. Points 1 and 3 contend that the trial court erred in entering judgment for appel-lees in that there was no evidence that they had sustained a legal loss and that, accordingly, the trial court should have granted appellant’s motion for judgment notwithstanding the verdict. We do not agree. Even if we were to assume, as the appellant contends, that the Campions sustained no pecuniary loss to the roofs of their poultry houses, the evidence is manifest that the Campions did, indeed, sustain pecuniary loss to the walls and window covers of the poultry houses. Thus, it is clear that some legal pecuniary loss was sustained, though it is unclear what percentage of the total loss in fair market value is attributable to the wall damage. Appellant’s points 1 and 3 are overruled.

Appellant’s point 2 asserts that the trial court committed prejudicial error by excluding evidence establishing that appel-lees sustained no legal loss. In effect, the appellant is contending that the Campions are being unjustly enriched by receiving a double recovery for the value of the damaged roof. We agree.

In determining this issue, our first consideration is the nature of the insurance policies issued by Hochheim Prairie to the Campions. After thoroughly considering their terms we find that the instant insurance contracts were contracts of indemnity. The terms of the contracts insured the Campions against loss due to fire, windstorm, hurricane, hail, and other causes. We find that insurance against loss, as opposed to a contract to pay on the happening of a certain event to be one for indemnity. Tauriello v. Aetna Ins. Co., 14 N.J.Super. 530, 82 A.2d 226 (1951); Ramsdell v. Insurance Co. of North America, 197 Wis. 136, 221 N.W. 654 (1928) (cited with approval in Paramount Fire Ins. Co. v. Aetna Casualty & Surety Co., 163 Tex. 250, 353 S.W.2d 841, 845 (1962)). Texas authority confirms this position. “The term ‘insurance’ is defined as an undertaking by one party, usually called the ‘insurer’ to protect the other party, generally designated as the ‘insured’ or ‘assured,’ from loss arising from named risks . . . .” McBroome-Bennett Plumbing, Inc. v. Villa France, Inc., 515 S.W.2d 32, 36 (Tex.Civ.App. — Dallas 1974, writ ref’d n. r. e.) (emphasis added). A contract of insurance is personal to the insured and is for his indemnity. An insurance policy is basically a personal, indemnity contract. Paramount Fire Ins. Co. v. Aetna Cas. & Surety Co., supra; Fire Ass'n of Philadelphia v. Strayhorn, 211 S.W. 447 (Tex.Com.App.1919, holding approved). As a result, we find the instant insurance contracts to be contracts of indemnity.

The purpose and function of a contract of indemnity is to insure against actual pecuniary loss sustained by reason of perils named in the insurance contract. See Paramount Fire Ins. Co. v. Aetna Cas. & Surety Co., supra; 30 Tex.Jur.2d, Indemnity § 11 (1962). Appellant herein pled in the trial court that the Campions’ purported loss was mitigated by a related transaction with the Wilson Building Company. Such was a legal defense, and the appellant should have been allowed to introduce testimony to show that the Campions had incurred no pecuniary loss to the roof as a result of the hailstorm. See Leggio v. Millers National Insurance Co., 398 S.W.2d 607, 611 (Tex.Civ.App. — Tyler 1965, writ ref’d n. r. e.).

Our decision is directed by Paramount Fire Ins. Co. v. Aetna Cas. & Surety Co., supra. In that case a seller and a purchaser entered into a contract to sell a parcel of land and the buildings thereon. Both the seller and the purchaser then secured insurance against fire loss to the property. Shortly before the closing date, a fire destroyed the property. The purchaser, however, paid the seller the full amount of the contract price for the property and the seller thereafter assigned all of his rights in his insurance policy to the purchaser. The insurance companies of both the seller and the purchaser settled with the purchaser and then the companies sued each other to determine which one was liable for the fire damage. The Supreme Court found that the seller’s insurance company was not liable for any of the fire damage in that the seller, by receiving the full amount of the contract price after the fire, had not incurred any pecuniary loss. Similarly, in our case, the Campions, as purchasers, received new roofs on their poultry houses without having to pay any additional money to the contractor. Thus, the loss to the buildings was diminished and this evidence should have been permitted to be introduced at the trial of the cause. See also McConnell Const. Co. v. Insurance Co. of St. Louis, 428 S.W.2d 659, 662 (Tex.Sup.1968).

The judgment of the trial is reversed and the cause is remanded for trial.

BISSETT, J., not participating.