author: GUITTARD, Justice.

text:
    Durwood O. PHILLIPS et al., Appellants, v. C. T. LATHAM et ux., Appellees.
    No. 18483.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 20, 1975.
    Rehearing Denied May 1, 1975.

      H. Averil Sweitzer, Dallas, Howard D. Pattison, Eustace, for appellant, Charles Ben Howell.
    Neil Brans, Dallas, for appellant, D. O. Phillips.
    John A. Pace, Pace & Chandler, Dallas, for appellees.
   GUITTARD, Justice.

This suit arose out of an allegedly wrongful trustee’s sale of a residence owned and occupied by plaintiffs C. T. Latham and wife. They sued C. R. Smith (or Carolyn R. Smith), who had held a second-lien note secured by the deed of trust under which the property was sold, Charles Ben Howell, an attorney, who acted as substitute trustee, and Durwood Phillips, who bought the property at the sale. Plaintiffs’ petition includes a count in trespass to try title and also a count for actual and exemplary damages for “illness and many hours of worry,” and loss of time from their work, caused by an alleged conspiracy between the defendants to deprive plaintiffs of their home. After a jury trial, judgment was rendered in plaintiffs’ favor against all defendants for title to the property, and against defendants Phillips and Howell for damages, and these defendants appeal.

We hold that the judgment for title was correct, but that the recovery of damages is without support in the evidence.

Title

Defendant Phillips asserts that he purchased the property at a valid trustee’s sale on September 2, 1969. Alternatively, he claims under a second trustee’s sale on March 2, 1971. Plaintiffs contend that neither of these sales passed title to the property because the indebtedness was not in default when either sale was made. We conclude that the verdict establishes that the indebtedness was not in default at the time of either sale.

The verdict must be construed in the light of the evidence. The promissory note in question was payable in twenty-dollar installments, due on the twentieth day of each month. C. R. Smith acquired the note in June 1969. Shortly afterward, defendant Howell, acting for her, wrote plaintiffs a letter notifying them of her acquisition of the note and advising: “Payments may be made by personal check as long as a valid check is actually received before the due date.” The letter states further: “[P]ayment must be in the hands of the undersigned owner before the due date.” Howell’s law-office address appears on the letter, apparently as the address to which payments should be sent.

Default in payment of the monthly installments was a sharply contested issue. Admittedly, the installment due June 20, 1969, was duly received and acknowledged. Howell testified that no payments were received after that time. Plaintiffs testified that they mailed the checks every month to C. R. Smith at the address given. Although the court’s charge did not expressly submit the issue of “default,” the jury found in response to issues submitted .that after plaintiffs were advised that C. R. Smith has acquired title to the second-lien note, plaintiffs mailed twenty-dollar checks to C. R. Smith for twenty-one months beginning July 20, 1969, on or before the due date of each installment, and that if each of the checks had been presented to the bank monthly in due course of business, all would have been paid. The last of the twenty-one monthly payments so found by the jury would have been on March 20, 1971. Under these circumstances, the jury’s findings established that no default occurred because of failure to pay any of the monthly installments due before the dates of either the trustee’s sale on September 2, 1969, or the sale on March 2, 1971.

Defendant Phillips contends that even though the verdict may establish that the monthly payments were not in default at the time of the first trustee’s sale in September 1969, it does not establish that all payments were properly made before the second trustee’s sale in March 1971. He argues that after September 1969, all payments were made to the wrong party because, even if the first sale was void, it nevertheless operated as an equitable assignment to him of the note and lien.

This argument is without merit because plaintiffs had no notice that anyone other than C. R. Smith was the holder of the note. The jury found, on sufficient evidence, that the first notice to plaintiffs that the property had been sold to Phillips was after the second trustee’s sale, when they received a notice to vacate preliminary to a forcible detainer suit, which Phillips later filed. Payment to the original creditor is effective as against an assignee if made in good faith, without notice of the assignment. Olshan Lumber Co. v. Bullard, 395 S.W.2d 670, 672 (Tex.Civ.App., Houston 1965, no writ).

Defendant Phillips also contends that plaintiffs were in default at the time of the second trustee’s sale in March 1971, because they had failed to pay the ad valorem taxes and had failed to keep the property insured in favor of the holder of the indebtedness. The deed of trust provides that on failure of the mortgagors to pay the taxes and keep the property insured in favor of the holder of indebtedness, “the whole amount of said indebtedness remaining unpaid, shall at the option of the party of the third part, or other holder thereof, without demand, presentment and notice • immediately mature and become payable.” The trustee is authorized to sell the property only upon the holder’s exercise of the option to declare “the whole amount of the indebtedness” immediately payable. The deed of trust also provides that the holder “shall have the option of paying taxes and insurance hereunder and in such event the sum so expended shall operate as a lien on the real property herein described and be secured hereby.” Defendant Phillips proved that he had paid the taxes for 1970 in the amount of $210.27, and had also procured insurance in his favor, for which he had paid a premium of $128.51.

To this contention plaintiffs reply that the provisions of the deed of trust dispensing with demand and notice do not apply in the particular circumstances of this case. We agree. Phillips purchased the property in September 1969, at a trustee’s sale, which we hold to be void under the jury’s findings. He accepted a trustee’s deed, which was recorded in the deed records and returned to him. Accordingly, the tax notices for 1970 were sent to him rather than to the Lathams. He did not forward them to the Lathams, and neither did he make demand on the Lathams for payment. According to the jury’s findings, he did not even notify them that he had bought the property. Instead, he paid the taxes himself and procured insurance on the property for his own benefit. Thus he affirmatively kept the Lath-ams from receiving the tax notices which they would normally have expected to receive. Under these circumstances, he is not entitled to assert that they were in default under the deed of trust for failure to pay the taxes and the insurance premiums without some sort of notice giving them an opportunity to reimburse him for these items.

Moreover, the trustee’s sale cannot be supported on the theory of default in payment of taxes and insurance premiums because the record affirmatively shows that the balance of the note was never accelerated on this ground. Under the terms of the deed of trust, the holder of the note has the option to accelerate the balance of the indebtedness on failure of the mortgagor to keep the taxes paid or on failure to keep the property insured in favor of the holder, and upon the holder’s exercise of his option to accelerate the balance of indebtedness on this default or for some other default under the deed of trust, the trustee is authorized, at the holder’s request, to sell the property. This option to accelerate must be exercised in some manner. See Jernigan v. O’Brien, 303 S.W.2d 515, 516 (Tex.Civ.App., Austin 1957, no writ); Parker v. Mazur, 13 S.W.2d 174, 175 (Tex.Civ.App., San Antonio 1928, writ dism’d).

The record fails to show any exercise of the option to accelerate after Phillips paid the taxes and insurance premiums. Exercise of such an option would be inconsistent with Phillips’s claim that he became the owner of the property by virtue of the first sale. Evidently, Phillips paid the 1970 taxes and procured insurance on the property for his own benefit by reason of his claim as owner, not by reason of his alternative claim, which he now asserts, that he was equitable assignee of the note and lien. If Phillips had asserted the rights of an equitable assignee of the note and lien before March 1971, and, in some effective manner, had exercised the option to accelerate because of the Lathams’s failure to pay the taxes and insurance premiums, then, perhaps such failure would support the trustee’s authority to make the second sale. His present contention that the second sale was authorized by default in payment of the taxes and insurance premiums is clearly an afterthought. The option to accelerate cannot be exercised retroactively after the sale.

For similar reasons, the record shows that Phillips’s supposed assignor, C. R. Smith, did not exercise this option on his behalf. She no longer had the right to accelerate the balance and request the trustee to sell on her own behalf, since she had accepted the amount of his bid at the first trustee’s sale in September 1969.

Phillips contends further that since the trustee’s deeds and other foreclosure documents are regular on their faces and appear to be sufficient to pass title, plaintiffs cannot assert title against him in an action in trespass to try title, but must specifically plead and prove equitable grounds to avoid the trustee’s sale. We do not agree. Under the jury’s findings, as we have construed them, payments on the note were not in default at the time of either of the trustee’s sales. Consequently, the substitute trustee had no authority under the deed of trust to sell the property. Both trustee’s deeds are void, not merely voidable, and, therefore, plaintiffs may maintain a suit in trespass to try title without alleging equitable grounds to avoid the trustee’s deed. Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671 (1942).

Phillips’ attempts to distinguish Slaughter on the ground that in that case the note-holder was the purchaser at the trustee’s sale, whereas here, Phillips was not the noteholder, but paid the amount of his bid in cash. This difference is not controlling. Slaughter holds that subsequent purchasers in good faith acquire good title, not on the theory that title actually passed by the trustee’s deed, but rather on an estoppel theory, since the option states that the mortgagor, by executing the deed of trust, made it possible for the trustee to create the appearance of good title in the original purchaser at the trustee’s sale, so that it would be inequitable to permit the mortgagor to show otherwise as against those who purchased in good faith in reliance on such an appearance. Defendant Phillips has failed to establish the elements of estoppel.

Neither has Phillips established that he is a good-faith purchaser. The general rule is that one claiming to be a good-faith purchaser has the burden of proof on that issue. Fenley v. Ogletree, 277 S.W.2d 135, 141 (Tex.Civ.App., Beaumont 1955, writ ref’d n. r. e.); see Watkins v. Edwards, 23 Tex. 443, 448 (1859). Phillips relies on Connor v. Lane, 355 S.W. 2d 223, 224 (Tex.Civ.App., Waco 1962, no writ) as holding that in a trespass to try title suit the burden of proving that a third party is not an innocent purchaser rests on the plaintiff. Connor stands for the rule that the holder of an equitable title has the burden to show that a subsequent purchaser of the legal title is not an innocent purchaser. That rule does not apply here because plaintiffs claim as holders of the legal title rather than as holders of an equitable title. If the substitute trustee had no authority to make the sale, then no legal title passed to the purchaser, under the Slaughter rule. Slaughter does not pass directly on the rights of a third-party purchaser at a void trustee’s sale, but it is consistent with the view that such a purchaser is subject to the general rule that one who claims to be a good faith purchaser has the burden of proof on that issue. We hold that the general rule applies here.

Defendant Phillips has not carried that burden. No issues were submitted to the jury concerning the defense of good faith purchaser, and no complaint is made here of the refusal of any requested issues. Neither does Phillips contend that he established a defense of innocent purchaser as a matter of law. Consequently, we hold that the Slaughter rule applies, and that the trial court properly rendered judgment for plaintiffs for title to the property.

Moreover, Phillips cannot claim to be a good-faith purchaser for value because the jury found that the value of the property at the time of the first sale was $12,500 and at the time of the second sale was $14,000, and further found that the sale price of $691.43 was grossly inadequate. These findings are not attacked for lack of evidence. Although good faith does not necessarily require payment of the full value of the property, a purchaser who pays a grossly inadequate price cannot be considered a good-faith purchaser for value. Nichols-Steuart v. Crosby, 87 Tex. 443, 29 S.W. 380, 382 (1895); Hume v. Ware, 87 Tex. 380, 28 S.W. 935, 936 (1894); cf. Hopper v. Tancil, 3 S.W.2d 67, 70 (Tex. Comm’n App.1928, jdgmt. adopted).

Phillips also contends that plaintiffs are not entitled to recover the land without tendering the balance of the debt, or at least, pleading their willingness to do so. He cites De Guerra v. De Gonzalez, 232 S.W. 896, 901 (Tex.Civ.App., San Antonio 1921, no writ) for its holding that even when a foreclosure sale is void, and the mortgagor sues in trespass to try title to recover the land, he must plead his willingness to pay the balance of the indebtedness. Under De Guerra, however, the plaintiff mortgagor was held to have this burden only when the defendant had alleged the debt and lien in his pleading and the plaintiff had failed to reply to this pleading by offering to pay the debt. Moreover, in De Guerra, judgment was not rendered against the plaintiff on appeal, but instead the case was remanded to give the plaintiff an opportunity to amend and do equity. Likewise, in Galveston, H. & S. A. Ry. v. Blakeney, 73 Tex. 180, 11 S.W. 174, 175 (1889), the plaintiff in a trespass to try title suit was denied recovery because he had failed to plead his willingness to pay an indebtedness to defendant in reply to a defensive plea alleging such indebtedness.

Here Phillips has not pleaded, even alternatively, that the Lathams owe him the balance due on the note, which they should pay before they are allowed to recover title to the land. Nevertheless, the trial court required plaintiffs to do equity, in that Phillips was allowed the amount he had paid for the land by crediting that amount against the judgment against him for damages. In view of our reversal of the judgment for damages, we remand the cause with instructions to require plaintiff to do equity, as will be more fully set out after we have discussed the question of damages.

We reject also Phillips’s contention that he has the rights of a mortgagee in possession, which prevent plaintiffs’ recovery of the land by plaintiffs without tendering the balance of the debt. In the first place, P.hillips has not established that he is a mortgagee lawfully in possession. He admits that plaintiffs have never been dispossessed from their occupancy of the property, but contends that they have judicially admitted that he is in possession by their formal allegations in trespass to try title. Those allegations may admit possession, but they do not admit “lawful” possession. The petition alleges that defendants "unlawfully entered upon and dispossessed them of such premises and withhold from them possession thereof.” [Emphasis added.] The authorities on which Phillips relies, particularly Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 1081 (1938), hold that a mortgagee lawfully in possession has the right to retain possession until his debt is paid.

In the second place, under the authorities Phillips cites, a plaintiff suing in trespass to try title has the burden to plead willingness to pay a debt to defendant only if defendant has pleaded his claim as a mortgagee in possession, and such a pleading by defendant does not defeat the plaintiff’s suit, but only prevents a judgment being rendered against defendant without protecting his rights to payment of the indebtedness due to him. Willoughby v. Jones, 151 Tex. 435, 251 S.W.2d 508, 513 (1952); Jasper State Bank v. Braswell, supra, 111 S.W.2d at 1086; and see Morrow v. Morgan, 48 Tex. 304, 309 (1877).

For all the above reasons we hold that the trial court properly rendered judgment against defendants for title and possession of the land.

Damages

The Lathams alleged that they suffered “illness and many hours of worry,” and also lost earnings, as a result of a conspiracy between defendants Phillips, Howell and Smith to deprive them of their property by a purported trustee’s sale. The jury found that such a conspiracy existed between Phillips and Howell, and that because of this conspiracy C. T. La-tham suffered personal injury damages of two thousand dollars and his wife suffered personal injury damages of three thousand dollars. The jury also found that the Lathams should be awarded exemplary damages of ten thousand dollars against Howell. The trial court rendered judgment for these damages. We conclude that the findings of actual damages are without support in the evidence because there is no evidence of a causal relation between the acts of defendants and any physical pain or illness suffered by plaintiffs, and no recovery for mental suffering alone is permitted in this kind of case. Since no actual damages have been proved, exemplary damages also must be denied.

In the damage issues the jury was instructed to consider "physical pain and mental anguish” in the past and in the future, and loss of earnings in the past. Since the jury found a single amount of damages for each plaintiff, without separate findings on each item specified, we must consider whether any of the items included in the issues were supported by the evidence.

We begin with “physical pain.” Since no direct physical injury was pleaded or proved, this item of damages must rest on proof of some type of physical illness caused by the wrongful trustee’s sale. We find no such proof. C. T. Latham testified that he suffered illness since filing the suit. His only illnesses shown in the record were conditions which required two periods of hospitalization late in 1971. The doctor who treated him did not testify, but the hospital records were introduced in evidence by defendants. His complaint when first admitted to the hospital on October 31, 1971, was “lower abdominal pain for the last five months.” When he was discharged on November 5, the doctor noted that the chief complaint was “lower gastric pain,” and that the patient “has been having difficulty with this condition for the past 2-3 years.” The final diagnosis was “[ajcute gastritis with hypercholesterolemia.” La-tham was again admitted on November 26 with a complaint of pain in the lower abdomen. This time the diagnosis was “acute prostatitis with cystitis.” After treatment for this illness, he was discharged on December 1, with a notation that his condition was improved. Latham testified that the doctor gave him a different diagnosis, but this testimony is hearsay and has no probative force. The records for both periods of hospitalization contain forms for recording the patient’s history and the results of examinations, and on both of these forms, under the heading “Nervous and Mental,” is the same notation, which is as follows: “There were no nervous and mental symptoms. No anxiety, depression, etc.” Thus the records apparently exclude any causal relation between defendant’s acts and these illnesses.

Latham did not attempt in his testimony to express an opinion concerning the cause of the particular illnesses which required his hospitalization. His wife was asked if her husband’s hospitalization was caused by the acts of the defendants, and she answered, “Yes, sir, they were.” This conclusion is without any factual support, since the only reason she gave was, “Well, it was certainly brought on after we were forced to go into the suit.”

We hold that there is no competent evidence of a causal relation between the acts of defendants and Latham’s illnesses, and, consequently, that there is no evidence to support any recovery in favor of C. T. Latham for “physical pain.”

Evidence is also lacking that defendants’ acts caused any “physical pain” to Mrs. Latham. She testified that she did not go to the hospital, but that she saw a doctor for a “twisted left ankle” about a year and a half after plaintiffs learned of the second trustee’s sale. When asked if that condition was caused by the wrongful foreclosure, she answered, “It certainly could have been.” Mrs. Latham also testified that after she went to Howell’s law office to give her deposition in November 1973, she “had a heart attack,” and “was in bed for a week and had quite a doctor bill.” Neither she nor any other witness testified that this “heart attack” was caused by the wrongful foreclosure. If it was caused by her having to give a deposition in the suit that she and her husband had brought, such an illness would be too remote for recovery of actual damages.

Apart from the lack of any evidence of a causal relation between defendants’ wrongful acts and the “illnesses” of which plaintiffs complain, we conclude also that such “illnesses” could not have been reasonably foreseen as a probable consequence of defendants’ acts. Even an intentional wrongdoer has no liability for remote consequential injuries that could not have been reasonably anticipated as a probable result of his acts. Sitton v. American Title Co., 396 S.W.2d 899, 904 (Tex.Civ.App., Dallas 1965, writ ref’d n. r. e.), cert. denied, 385 U.S. 975, 87 S.Ct. 501, 17 L.Ed.2d 437 (1966).

The evidence of “mental anguish” suffered by the Lathams is also weak. The strongest testimony in this regard is that of Mrs. Latham, who said, when asked about the illness for which her husband was hospitalized: “Well, it was a nervous problem that he didn’t sleep for weeks and weeks because we were just so aghast to think that anyone would try to take a home away from us after we had worked so hard to pay for it, and you can just imagine what a blow it was to us when we found out after we slaved and paid for the property somebody else wanted it.”

If we accept this testimony as some evidence of “mental anguish” caused by the acts of defendants, it still provides no basis for recovery of damages because it was not shown to have been accompanied by any physical illness or injury caused by defendants. Texas courts have followed the rule that mental suffering ordinarily is not ground for recovery of damages, unless accompanied by physical injury or illness. Duty v. General Finance Co., 154 Tex. 16, 273 S.W.2d 64, 65 (1954) ; Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W. 2d 81, 82 (1953); United Finance & Thrift Corp. v. Smith, 387 S.W.2d 752, 757 (Tex.Civ.App., Tyler 1965, writ ref’d n. r. e.). Damages for mental suffering are sometimes allowed without a showing of physical injury when defendant has committed a direct and intentional invasion of plaintiff’s interest in personal security and peace of mind. Such cases include assault and battery, Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex.1967); malicious prosecution, Stein v. Greenebaum, 203 S.W. 809, 813 (Tex.Civ.App., Galveston 1918, no writ); and invasion of the right of privacy, Billings v. Atkinson, 489 S.W.2d 858, 861 (Tex.1973). In such cases the principal injury may be substantially mental and subjective. No such tort is shown here. The only tort alleged is a conspiracy to deprive plaintiffs of their property. The conspiracy has not been successful, but even if it had been, no damages from mental suffering would be recoverable. In suits involving interference with property rights, courts have been unwilling to add damages for mental suffering to the relief normally granted. Gulf, C. & S. F. Ry. v. Trott, 86 Tex. 412, 25 S.W. 419 (1894); Crawford v. Doggett, 82 Tex. 139, 17 S.W. 929, 930 (1891); Phoenix Furniture Co. v. McCracken, 3 S.W.2d 545, 550 (Tex.Civ.App., Beaumont 1928, no writ).

The only remaining item of actual damages submitted by the trial court is “loss of earnings in the past.” As we read the record, the only time lost from work ■by either of the plaintiffs, except that resulting from illnesses not shown to have been caused by defendants’ acts, was time lost because of the pendency of the lawsuit, such as that required for depositions and attendance at the two trials in this case. This loss is an expense of litigation. We know of no authority supporting recovery of actual damages for such a loss, and plaintiffs have cited none.

Since, for the reasons stated, the actual damages awarded in the conspiracy action cannot be supported, the exemplary damages awarded against defendant Howell must also fall. The rule is well settled that exemplary damages must be predicated on actual damages. General Insurance Corp. v. Harris, 327 S.W.2d 651, 656 (Tex.Civ. App., Dallas 1959, no writ).

Judgment

Insofar as the judgment of the trial court allows plaintiffs recovery of actual and exemplary damages, that judgment is reversed and judgment is rendered that plaintiffs take nothing on their conspiracy count against defendants Phillips and Howell. Since this reversal leaves no recovery against which Phillips may be allowed credit for the balance of the indebtedness, the cause is remanded with instructions in accordance with the procedure prescribed in Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 1086 (1938). Defendant Phillips will be permitted to amend his pleadings to allege the amount due him. Plaintiffs will be permitted in reply to plead an offer to pay what they owe. If plaintiffs fail to plead such an offer, the court is instructed to render judgment that plaintiffs take nothing. If plaintiffs do plead such an offer, the court will, without reopening any of the points settled in this opinion, or the facts on which they are based, render judgment in favor of plaintiffs for title and possession of the property, conditioned upon and subject to payment of the amount of the indebtedness, as determined by the court, or the court will make such other order as will secure payment to Phillips of such amount. Since defendant C. R. Smith is not a party to this appeal, the judgment with respect to her is undisturbed. Costs of this appeal are taxed one-half against plaintiffs and one-half against defendant Phillips.

Reversed and remanded with instructions.

On Motions for Rehearing

Both appellants and appellees have filed motions for rehearing. Both motions are overruled. We limit our comments to matters not discussed in our original opinion.

On submission of the cause, we permitted appellants to file a supplemental brief including additional points of error, and we discussed several of the supplemental points in our original opinion. One of the supplemental points not discussed asserts that the record contains no evidence to support the jury’s finding in answer to issue number nine that if each of the installment checks, which plaintiffs assert that they mailed every month, had ’been presented to the bank in due course of business, they would have been paid. Another supplemental-point asserts that this finding is against the great weight and preponderance of the evidence. Appellants reargue these points in their motion for rehearing. They insist that plaintiffs’ bank statements reveal six occasions on which the balance would not have been sufficient to cover the checks if they had been presented promptly, and they point out that plaintiffs offered no testimony by a bank officer that the checks would have been paid, or any evidence that other checks had been paid regardless of insufficiency of funds.

We overrule these points because we do not consider the issue controlling in the light of this record. Since the undisputed evidence shows that the checks were never presented, the jury’s finding that they were mailed necessarily implies that the payee accepted and held them without presenting them to the bank. Therefore, the status of the bank account is immaterial. The payee cannot retain checks tendered in payment of installments due over a period of almost two years, never present any of them for payment, and then successfully maintain that the debtor is in default on the theory that some of the checks, if presented, would not have been paid.

Appellants also renew their argument that the jury’s finding in answer to issue number eight that the checks were mailed each month on or before the due date of each installment is contrary to the great weight and preponderance of the evidence. They cite various circumstances casting doubt on the credibility of Mrs. Latham’s testimony that the checks were mailed. Although these circumstances may be persuasive on the issue of her credibility, we cannot say that the jury was without justification in accepting her direct and positive testimony that she mailed the checks each and every month.

Motions overruled.

On Motion to Retax Costs

Appellants have moved to retax the costs in this court to the extent that appellees caused to be included in the transcript various matters not pertinent to the appeal. This motion is sustained. The transcript shows that after appellants had made their request to the clerk of the trial court in accordance with Texas Rules of Civil Procedure 376, specifying the documents to be included in the transcript, ap-pellees made an additional request “to include complete copies of all pleadings, including Petitions, Answers and Motions and all Orders entered in this cause.” As a result of these requests, we have before us a transcript in three volumes, consisting of four hundred sixty-nine pages. Among the documents included are abandoned pleadings and exceptions to abandoned pleadings, motions and orders with respect to depositions, a motion for continuance, a motion in limine, a motion for summary judgment and the answer to it, and numerous other matters having no relation to the questions presented to us. This material has been of no benefit to us, but, on the contrary, has added to our labors.

Appellees’ attempt to justify inclusion of the additional material on the ground that they did not know what contentions they would have to meet. The attempted justification fails. If appellees’ counsel finds, on examining appellants’ • brief, that material documents have been omitted from the transcript, the remedy is to suggest the filing of a supplemental transcript under Tex.R.Civ.P. 428. We call attention also to Tex.R.Civ.P. 370, which refers to “[l]iberal provisions ... in these rules for amendments on appeal to bring forward any material matter which may have been omitted.” This rule adds: “With this protection the bar is expected to cooperate in shortening the records in furtherance of the provisions of these rules.”

We find appellees’ request for inclusion of all documents in the record not specified by appellants as contrary to both the letter and spirit of the rules, and we retax the costs accordingly. Appellants compute the cost of the additional material in this record as one hundred eighty dollars, and this figure is not challenged by appellees. Consequently, this amount of the cost of the transcript is taxed against appellees. The other costs of the appeal are taxed as provided in our original judgment.

Appellants have also asked us to clarify our judgment with respect to costs in the trial court in view of our reversal and rendition of judgment in their favor on the conspiracy count. Our judgment made no provision concerning costs in the trial court. Since we remanded the case to the trial court with instructions to proceed in accordance with our opinion, that court should make a proper allocation in its final judgment of the costs in the trial court.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    LANPHIER CONSTRUCTION COMPANY and Servtex Materials Company, Appellants, v. FOWCO CONSTRUCTION COMPANY et al., Appellees.
    No. 864.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 3, 1975.
    Rehearing Denied April 24, 1975.

      Richard J. Hatch, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, Bruce Waitz, Waitz, Bretz & Collins, San Antonio, for appellants.
    Ben F. McDonald, McDonald, Spann & Smith, Richard A. Hall, Jr., Branscomb, Gary, Thomasson & Hall, Cecil D. Redford, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellees.
   OPINION

NYE, Chief Justice.

This is a suit for damages arising from an alleged breach of contract and breach of warranty, express and implied, growing out of the construction of the Alice High School at Alice, Texas. Lanphier Construction Company, the general contractor, brought suit against its sub-contractor, Fowco Construction Company, Inc. and its surety, Fidelity and Deposit Company of Maryland, for damages which Lanphier suffered when the paving material, laid by Fowco, proved to be defective. Fowco and Fidelity, in turn, brought suit against Fow-co’s supplier, Servtex Materials Company, claiming that it breached both express and implied warranties as to its product. Trial was to the jury on special issues: the jury found that the reasonable and necessary sum which Lanphier was required to spend to remedy the defect amounted to $20,000.-00; that Servtex had breached both express and implied warranties and that the sum necessary to correct the defects resulting from these breaches was $20,000.00. The trial court, upon the verdict, entered its judgment that Lanphier recover $20,000.00 from Fowco less a credit to Fowco for $1,200.00 for extra work and less $6,665.00 for the retainage held by Lanphier and that Fowco recover over and against Servtex the sum of $20,000.00. The record is voluminous (over 2000 pages in the Statement of Facts). The case actually represents two separate appeals: 1) Lanphier Construction Company and 2) Servtex Materials Company. Lanphier contends in effect that it was entitled to more money and Servtex contends that it does not owe anything.

Lanphier Construction Company was the general contractor for the erection of a high school for Alice Independent School District, Alice, Texas. The architects on the job were the firm of Swanson, Hiester, Wilson & Boland hereinafter referred to as architects. Lanphier initially sublet the site work to C. R. M. Contractors hereinafter called C. R. M. on January 8, 1969, including the asphalt paving, prepaving the subgrade, site fill, site excavation, curbs and gutter, gutter, precast curbs, stripping, concrete pipe culverts and fine grading site. Fidelity and Deposit Company of Maryland issued a performance and payment bond as surety for C. R. M. C. R. M. began the work and partially performed the job by preparing the subgrade and site excavation. Prior to the laying of the asphalt, C. R. M. defaulted and abandoned the job. Fidelity and Deposit Company of Maryland advertised for bids to complete the defaulted contract and sent out invitations for bids on February 25, 1970. Fow-co Construction Company, Inc. hereinafter referred to as Fowco was the successful bidder. In accordance with the requirements of the bond, Lanphier entered into a new sub-contract with Fowco for the completion of the defaulted contract work on March 16, 1970. Fowco was to furnish all labor, material and equipment necessary for the completion of all work that was not completed by C. R. M., the original subcontractor. Fowco’s bid on the job was in the amount of $66,652.00. Fidelity and Deposit Company of Maryland issued a performance and payement bond as surety for Fowco.

According to the specifications, Fowco was required to use Hot mix-Hot laid asphalt Type DD on those areas to be paved. Fowco found that the Hot mix-Hot laid material was unavailable at the time the asphalt was needed and requested permission from the architects to use a substitute material. Permission was given allowing Fowco to substitute hot mix-cold laid as-phaltic concrete upon the condition that the substituted material would meet Texas Highway Department Specifications 352. Fowco, as a condition to placing its order required of Servtex a notarized certificate that its material would meet such specifications. On April 20, 1970, Servtex delivered said certificate to Fowco which was in turn delivered to the architects. Fowco thereafter ordered 1,900 tons of the asphalt from the Servtex Plant in Comal County, Texas. The material in question was manufactured by Servtex and shipped by rail to Alice, Texas, in five separate shipments beginning on April 18, 1970. The last shipment was received June 10, 1970. The materials were unloaded and stockpiled beside the railroad tracks, then loaded into dump trucks and hauled to the job site. Fowco began laying the material on April 27, 1970, and completed laying it on June 12, 1970. In laying the material, Fowco used three types of machines; a Layton laydown machine; a Barber-Green lay-down machine; and a motor grader. Upon completion of the job, Fowco received 90% of its contract price leaving a re-tainage of $6,665.20 due from Lanphier Construction Company. Shortly after completion, the asphalt paved portion of the work began to show defects.

The architects, as agents for the school board, in a letter to Fowco dated September 1, 1970, demanded that Lanphier correct the defects by removing the asphaltic concrete paving then in place in the drives and parking lot; remove all debris from the site; reshoot the base to grades as shown on plans and compact same; apply new prime and tack coat per specifications; and install a new wearing surface of Hot mix-Hot laid equal to 1962 Texas Highway Specifications item 346, Class AA type D. Lanphier gave notice, in accordance with its contract, to Fowco, to redo the work as required by the architects. Fowco refused to redo the job. Lanphier then, without taking any other bids, on September 21, 1970, contracted with Heldenfels Brothers Contractors for the sum of $29,450.00 to take up the existing surface, recompact the base, lay a prime coat and lay a new surface. Hel-denfels removed the Servtex asphalt and installed its own asphalt achieving satisfactory results. The evidence showed that as of the date of trial, the asphalt was in satisfactory condition. Lanphier paid Hel-denfels the $29,450.00 in accordance with their contract. In addition, Lanphier contracted with Parking Control Company for the restripping of the parking lot and paid them $638.40.

Lanphier then brought suit against Fow-co and Fidelity and Deposit Company of Maryland as defendants for the recovery of the aforesaid $30,088.40 ($29,450.-00 + $638.40) for breach of Fowco’s contract. Fowco answered and sued everyone involved. Fowco filed a cross action against Lanphier and Glen Falls Insurance Company (Bonding Company for Lan-phier) for the retainage of $6,665.20 and for $1,200.00 alleged to be extra work. Fowco filed a cross action against Fidelity and Deposit Company of Maryland, alleging that if there were any defects, they were the fault of C. R. M. (sub-contractors) and not Fowco, and impleaded C. R. M. as a third party defendant. In addition, Fowco filed a third party action against Servtex for breach of express and implied warranty of fitness of the materials purchased by Fowco from Servtex. Finally, Fowco impleaded the architects, Swanson, Hiester, Wilson and Boland, as third party defendants, alleging a cause of action against them for negligent design as well as other theories. Fidelity and Deposit Company of Maryland answered and sought recovery over against Fowco for any amount which Lanphier might recover against it and also impleaded Lewis A. Fowler as a third party defendant, seeking a like recovery on his indemnity agreement. The architects went out of the case on their motion for instructed verdict. Trial was to the jury, which returned a special issue verdict in favor of Lanphier for $20,000.00 and against Fowco and Fidelity and Deposit Company; in favor of Fowco, on its third party action against Servtex (who furnished the material), for breach of both express and implied warranties fixing the damages at $20,000.00; and in favor of Fowco on Fowco’s cross-action against Lanphier for the recovery of $1,200.00 for extra work. The court then entered its judgment • in accordance with the jury’s verdict as follows:

(1) In favor of Lanphier against Fowco and Fidelity. and Deposit Company for $20,000.00.

(2) In favor of Fowco against Servtex for $20,000.00.

(3) That Lanphier’s judgment against Fowco and Fidelity and Deposit Company be credited with the retainage held by Lan-phier, in the amount of $6,665.00 and that said judgment be further credited with the value of the extra work in the amount of $1,200.00.

(4) In favor of Fidelity and Deposit Company against Fowco and Lewis A. Fowler, jointly and severally, for the sum of $20,000.00 by way of indemnity with respect to the judgment recovered against Fidelity and Deposit Company of Maryland by Lanphier Construction Company.

From this judgment, Lanphier Construction Company and Servtex Materials Company have perfected their appeals.

“LANPHIER’S APPEAL”

Appellant Lanphier’s first point of error is that the trial court erred in its failure and refusal to disregard the jury’s answer to Special Issue No. 1, and to grant judgment non obstante veredicto to Lan-phier for the full amount of the $30,088.40 sum expended by Lanphier to correct the defective work. Special Issue No. 1 reads as follows:

“ISSUE NO. 1
Find from a preponderance of the evidence the reasonable and necessary sum of money, if any, required to be expended by Lanphier Construction Company to correct the defective and unacceptable asphalt paving job performed at the Alice High School by Fowco Construction Company.
Answer in dollars and cents, if any.
Answer: $20,000.00” (Emphasis supplied).

Appellant Lanphier relies heavily on the case of Page v. Travis-Williamson County Water Control and Improvement District No. 1, 367, S.W.2d 307 (Tex.Sup.1963). In that case, a jury issue was submitted as to the reasonable cost of the work and materials necessary to remedy the deficiencies, and the jury found that the reasonable and necessary cost was $14,990.00 rather than the actual cost expended by the water district owner of $39,234.07. The appellate court reformed the judgment holding that the actual cost of completion ($39,234.07) rather than the reasonable cost of completion was the proper measure of damages with such holding being upheld by the Supreme Court. It may be true that the issue as submitted was objectionable. However, Rule 274, Texas Rules of Civil Procedure, requires that the party complaining must point out distinctly the matter to which he objects and the grounds of his objection otherwise such objection shall be deemed waived. Allen v. American National Insurance Company, 380 S. W.2d 604 (Tex.Sup.1964); Cox v. Huffman, 159 Tex. 298, 319 S.W.2d 295 (1959); Frozen Foods Express v. Odom, 229 S.W. 2d 92 (Tex.Civ.App.—Eastland 1950, writ ref’d n. r. e.); Steinberg v. Medical Equipment Rental Services, Inc., 505 S.W.2d 692 (Tex.Civ.App.—Dallas 1974, no writ); Graham Construction Company v. Robert H. Pyle, Inc., 422 S.W.2d 485 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.). Appellant Lanphier’s first point of error is overruled.

Appellant Lanphier’s second point of error is that the trial court erred in its failure and refusal to disregard the jury’s answer to Special Issue No. 1 for the reason that there was no evidence or insufficient evidence to support such finding by the jury. Although the point of error is multifarious, we will consider appellant’s point. In deciding the question of whether there is evidence of probative force to support a jury finding, we must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. In deciding appellant’s insufficient evidence point, we are required to view all the evidence, both that favorable to the verdict and that contrary thereto. Garza v. Alviar, 395 S. W.2d 821 (Tex.Sup.1965); Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960).

The appellee called an expert witness, H. D. Bailey, a contractor, who has been in the asphalt business for a period of 37 years. He testified to certain mathematical computations concerning the reasonable and necessary cost of redoing the job. Bailey stated that the equipment would probably be leased on an hourly basis and that about a nickel a square yard of primer would be necessary, amounting to about $1,500.00. Bailey testified that the job would have taken 1500 to 1600 tons of asphalt with a cost of $1.75 to $2.00 per ton. and that it would cost about $3,000.00 to lay it. Bailey testified that the asphaltic concrete would have cost about $10.00 per ton delivered to the job amounting to $15,000.00 giving a total of $19,500.00. Bailey stated “this would be a reasonable cost within ten per cent.”

Lanphier entered into a contract, absent competitive bidding, with Heldenfels Brothers on September 24, 1970, to redo the unsatisfactory work for a fixed sum of $29,450.00. Lanphier paid Heldenfels Brothers the sum of $29,450.00 by check upon completion of such work. The parking area had to be restripped by reason of the work being redone at a cost of $638.40. Heldenfels testified that he believed that $29,450.00 was a reasonable charge for such work. We have reviewed the entire statement of facts in this case (including all the evidence in support of the jury’s answer and that which was contrary to the verdict); we are satisfied that the evidence is sufficient to support the jury’s finding that the reasonable and necessary sum of money required to be expended by Lanphier to correct the defective asphalt paving job was $20,000.00. Appellant Lan-phier’s second point of error is overruled.

Appellant Lanphier’s third point of error is that if the trial court did not err in disregarding the jury’s answers to Special Issue No. 1, then the trial court erred in deducting the retainage of $6,665.20 after the jury had already deducted the same in deriving its answer to Special Issue No. 1. Lanphier contends that the jury did in fact deduct the $6,665.20 retainage in reaching the figure of $20,000.00 as did the court, creating a situation by which Lan-phier’s judgment against Fowco was credited twice with the amount of $6,665.20. Lanphier, in his amended motion for new trial, attached the affidavits of two of the jurors in which they stated they had deducted the retainage figure of $6,665.20 in reaching the final sum of $20,000.00.

No'other jurors submitted affidavits nor was there testimony by any other jurors as to how they reached their verdict. Yet Lanphier alleges that each individual juror agreed to the deduction of the retainage amount prior to the finding of the $20,000.-00 sum. Appellant Lanphier has advanced no authority for its contention that the trial court erred in deducting the retainage of $6,665.20, nor have they alleged or proved that such occurrence constituted jury misconduct. Appellant’s third point of error can at most be construed as a jury misconduct question and will be treated as such. First of all, we believe that appellant is inquiring into the mental process of the jurors rather than alleging some overt act by the jurors constituting jury misconduct. 56 Tex.Jur.2d, Trial, § 344, p. 709 (1964). We have reviewed the testimony elicited from the two jurors along with their affidavits and conclude that such relates only to the mathematical, mental reasoning process used by them reaching their verdict. Such testimony was the result of direct inquiry into the mental processes of the jurors concerned and therefore cannot be considered by the trial or appellate courts in determining the probable effect of misconduct upon the verdict of the jury. Putnam v. Lazarus, 156 Tex. 154, 293 S. W.2d 493 (1956); Mrs. Baird’s Bread Company v. Hearn, 157 Tex. 159, 300 S. W.2d 646 (1957); Fields v. Worsham, 476 S.W.2d 421 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); Hanover Insurance Company v. Hoch, 469 S.W.2d 717 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.).

The trial court, by overruling appellant Lanphier’s motion for new trial, impliedly found that the misconduct did not occur. Such implied finding, we believe, is supported by the evidence and is binding on the appellate courts. State v. O’Dowd, 158 Tex. 348, 312 S.W.2d 217 (1958); Brawley v. Bowen, 387 S.W.2d 383 (Tex.Sup.1965). Appellant Lanphier’s third point of error is overruled.

Appellant’s fourth point of error was that the trial court erred in its refusal and failure to disregard the jury answers to Special Issues Numbers 12, 13 and 14 because the question of whether or not such “ramp” was or was not included in the contract work as a matter of law is to be determined by the court rather than the jury. Special Issues 12, 13 and 14 read as follows:

“Issue No. 12
Do you find from a preponderance of the evidence that Fowco built a ramp and a ramp walkway at the Alice High School job?
Answer: Fowco did.
Issue No. 13.
Do you find from a preponderance of the evidence that the ramp and ramp walkway built by Fowco, if you have so found, were not included in the Lanphier Construction Company contract documents ?
Answer: They were not included.
Issue No. 14
Find from a preponderance of the evidence the reasonable value of the ramp and ramp walkway, if you have so found it to have been built by Fowco ?
Answer: $1,200.00”

Appellant Lanphier duly objected to the submission of the above special issues. The question before us is whether Special Issues 12, 13 and 14 as submitted to the jury were law questions. In the case of Housing Authority of City of Dallas v. Hubbell, 325 S.W.2d 880 (Tex.Civ.App.—Dallas 1959, writ ref’d n. r. e.), a similar situation existed. In that case, plaintiff submitted 11 special issues to the jury inquiring whether certain work done by the contractors constituted extra work not required by terms of the contract or whether said work was required to be done as part of the contractor’s obligation in the performance of the contract. The court held such issues submitted a question of law and stated:

“To ask the jury whether certain work was extra work is to ask the jury whether said work was required to be done as part of Contractor’s obligation in the performance of the contract, or whether the work was not required by the terms of the contract, but was in addition to the work required by the contract. Thus the jury is called on to interpret the written contract.”

In the case at bar, Special Issue 13 required the jury to interpret the contract. Lanphier’s objection to submission of said Special Issue No. 13 should have been sustained. However, in reviewing the record and statement of facts, it is undisputed that the construction of the ramps by Fow-co was not required to be done by the contract entered into between Lanphier and Fowco. The original sub-contract between C.R.M., the sub-contractor, and Lanphier required C.R.M. to construct the asphalt paving, paving base, preparing subgrade, site fill, site excavation, curbs and gutters, pre-cast curbs, stripping, concrete pipe culverts and fine grading site. There was no mention or indication in that contract that C.R.M. was to construct “ramps”. When Fowco took over the job, included in such contract was the following job description:

“To furnish all labor, materials and equipment necessary for the completion of all work that has not been completed by CRM contractors, Inc. former subcontractor, that included asphalt paving, paving base, preparing subgrade, site fill, site excavation, curbs and gutters, precast curbs, stripping concrete pipe culverts, fine grading, (change order #1), sidewalks, (change order #3) revision of entrance at Sunset Blvd., and change order #4, Revision of curb and culvert.”

Again, there is no mention nor indication that ramp work was included in the contract. The specifications made no mention of ramps. We hold that the trial court properly entered its judgment that Fowco was entitled to a credit of $1,200.00, such being the reasonable cost of the work done by Fowco in addition to its contractual duties. If there was error in the submission of Special Issue No. 13, it was harmless error. Rule 434, Tex.R.Civ.P.

Special Issues Numbers 12 and 14 were questions of fact. Both Fowco and Lanphier contend that the ramps were built by them. There was sufficient evidence introduced that the charge of $1,200.00 was a reasonable cost. These issues were properly submitted to the jury and the trial court was correct in overruling Lanphier’s objection as to these issues. Since there was a conflict as to who built the ramps, and such was a fact question, it was properly submitted to the jury.

Appellant Lanphier’s fifth point of error is that the trial court erred in its failure and refusal to disregard the jury’s answers to Special Issues Numbers 12, 13 and 14 because there was insufficient evidence to support the submission of such issues, or to support the jury finding thereon. After considering all the evidence in the record, we hold there was sufficient evidence to support the findings of the jury on Special Issues 12 and 14. Appellant’s fifth point of error is overruled.

“SERVTEX’S APPEAL”

Next, we consider the appeal of Servtex. Appellant Servtex first complains that Fowco’s misuse of the materials furnished by Servtex precludes Fowco’s recovery as a matter of law. Servtex specifically complains of the jury’s answer to Special Issue No. 5, asserting that there was no evidence or insufficient evidence to support the jury’s answer thereto. Tn passing on the “no evidence” point, we are guided by the familiar rules governing such point of error. Special Issue No. 5 reads as follows:

“Issue No. 5
Do you find from a preponderance of the evidence that the methods employed by Fowco in laying the asphaltic concrete were in substantial conformity with the requirements of use provided by the Texas Highway Department Specifications No. 352?
Answer: Such methods were in substantial conformity.”

Servtex contends that Fowco did not use the proper equipment in laying the asphalt and such was the cause of the defective paving job. The record shows that Fowco used four methods in laying the Hot mix-Cold laid material: those being by motor grader; Layton drag box; Barber Green Laydown machine; and hand spreading. Servtex asserts that the only permissible method of laying the material was by using a motor grader, and under Texas Highway Specifications 352, a motor grader is the “only” authorized equipment for spreading and laying the asphalt. First, the Texas Highway Specifications No. 352 do not limit spreading of the asphalt by a motor grader only, as Servtex contends. Those specifications read in part as follows:

“The mixture shall be thoroughly aerated and then spread into place with a power motor grader, in a uniform layer of such depth that after receiving ultimate compaction by rolling, the requirements of the typical cross sections will have been fulfilled. Hand spreading will be permitted where the mixture is placed on narrow strips or small irregular areas.
******
If primer and water are not added to the paving mixture it may be placed with specified spreading and finishing machine. (Emphasis supplied.)
***** *
(3) The spreading and finishing machine shall be of a type approved by the Engineer and shall be capable of producing a surface that will meet the requirements of the typical cross-section and the surface test.
******
(5) The motor grader, if used, shall be a self propelled power motor grader.” (See Servtex Exhibit II)

Such language in the Texas Highway Department Specification 352 leaves no doubt that methods other than the use of a road grader are authorized. The evidence was that primer or water was not added to the hot mix-cold laid material, thereby authorizing the mixture to be placed with a spreading or finishing machine in accordance with the specifications. The evidence conclusively shows that all the asphalt failed, even that laid by the use of a road grader. In questioning Lewis Fowler and Mr. Claycomb, one of the architects in charge of the Alice High School project, both testified that regardless of whether the Layton machine, motor grader or Barber Green Machine were used, a bad job resulted uniformly throughout the entire job.

Servtex next asserts that Fowco did not properly compact the material and such was also a cause of the material unraveling and becoming dislodged. Mr. Claycomb, the architect, testified that the material was compacted, but it didn’t stick together very well. He thereafter requested Lewis Fowler to roll the surface some more. Fowler complied with such request, reroll-ing it six or seven more times, without the desired result being accomplished. The paving remained unacceptable after repeatedly rerolling the surface. There was testimony from Mr. White of Trinity Testing Laboratory, Inc. that he had made compaction test and that the rolling and compaction of the material met the standards set out in the specifications thereby leaving the inference that it was the material that was defective since the method of laying it down and compaction was within the specification requirements. The evidence above dearly shows that there was “some evidence” to support the jury’s finding. Servtex’s no evidence point is overruled. It is equally clear after considering all the evidence that there was sufficient evidence to support the jury’s verdict. Appellant Servtex’s points of error 1 through 5 are overruled.

Appellant Servtex, in points of error 6, 7, 8, 11 and 12, asserts that the trial court erred in not disregarding the jury’s finding on Special Issue No. 2 in that there was no evidence or insufficient evidence to support the jury’s finding that the materials sold by Servtex to Fowco did not conform to Texas Highway Department Specifications 352 for Hot Mix-Cold Laid asphaltic concrete type DD. Servtex, in their points 9, 10, 13 and 14, assert that there was no evidence or insufficient evidence to support the jury’s answer to Special Issue No. 3, finding that the failure of Servtex’s asphalt to conform was the proximate cause of the failure of the paving job at the Alice High School job. These points will be discussed together. We will first consider Servtex’s no evidence points. At the time Lewis Fowler began work on the Alice High School project, he learned that Hot mix-Hot laid asphalt was unavailable, thus prompting his inquiry as to whether Serv-tex could deliver a substitute Hot mix-cold laid asphalt which would meet the requirements of Texas Highway Department Specifications 3S2. Servtex, on April 20, 1970, replied by sending the following statement to Fowco:

“TO WHOM IT MAY CONCERN:
This is to certify that the hot mix-cold laid asphaltic concrete, type DD, which we are furnishing Fowco Construction Co. for use on Alice High School project will meet all the requirements as set out in Texas Highway Department Specifications Item 352.
/s/ J. G. Rheinluender
Sales Manager, President
Servtex Materials Company”

Lewis Fowler, who had been in the asphalt paving business for approximately 25 years, testified that when he began putting the Servtex asphalt down, it looked drier than any other hot mix-cold laid asphaltic concrete that he had ever put down before. Mr. Heldenfels, of Heldenfels Brothers, who redid the job after Fowco refused to correct the defects, testified that the material lacked cohesiveness and would not adhere. Mr. Dewey Smith, Superintendent of Schools for Alice School district, testified to the loose condition of the asphalt after it had been laid. He stated that it could be picked up in places and could be dropped from your fingers in particles. Robert White, manager of the Trinity Testing Laboratories, testified that as a result of his testing of the asphaltic material that failed at the Alice site, he found that the material was a dry material that would not stick together and was not cohesive. The evidence showed that all the asphalt supplied by Servtex failed, despite Fowler’s using three different types of machines in laying it and after repeatedly rerolling it so as to make sure it had been properly compacted. It is clear to us from the evidence that the type of machine used in laying the asphalt was not the cause of the asphalt failing. Heldenfels Brothers, in correcting the defective paving job, found it unnecessary to redo or recompact the base laid by Fowco. The base met all compaction tests. There is also evidence in the record indicating that if the base had not properly been compacted in the first place (as contended by Servtex), it could not have been used by Heldenfels without completely reworking the base. Heldenfels testified such was not necessary and was not done.

The record also shows that there were no changes in the drainage system as it existed when Fowler laid down the Servtex asphalt. Heldenfels’.job turned out satisfactory, using the same base, subbase, and drainage system that Fowler used. The only difference in the completed job was the use of Heldenfels’ own asphalt and not that of Servtex. There was evidence that the material purchased by Fowco, since it was not used by the State of Texas, received no final inspection as to quality before leaving the plant as is required for the State of Texas. There was expert testimony by five men: Therell Smith, President of Smith Construction Company; H. D. Bailey, a paving and concrete contractor for 37 years; Roger Welch, District Construction engineer with the State Highway Department; Robert White, manager of Trinity Testing Laboratories, Inc.; and Clement O. Williams, Sr., a registered professional engineer. These individuals all testified that when taking into consideration the facts: that there existed a good base properly compacted; that the same drainage system was used when Fowco laid the Servtex asphalt; and that asphalt of one kind fails and has to be taken up within two months after it is put down; and later after the defective material is taken up and a different asphalt is put on and stays in good condition for approximately three years thereafter, the most probable and likely cause of the failure was the asphalt materials and nothing else. After reviewing all of the evidence, we find that the evidence is sufficient to support the jury’s findings that the material supplied by Servtex failed to conform to the Texas Highway Department’s specifications and that such failure to conform was the proximate cause of the failure of the paving job by Fowco at Alice High School. Appellant Servtex’s points 6 through 14 are overruled.

Servtex, in its points of error numbers 15-21, assert that the trial court erred in allowing submission of special issues numbers 6-10 because an implied warranty of fitness for a particular purpose is excluded as a matter of law by an express written warranty. With this, we disagree. Special Issues 6 through 10 in essence required the jury to determine whether Serv-tex breached an implied warranty of fitness for a particular purpose. The jury answered in the affirmative. In Tex.Bus. & Comm. Code Ann. § 2.315, V.T.C.A., an implied warranty of fitness for a particular purpose is defined:

“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purposes.”

To determine how such implied warranty of fitness can and is excluded, Tex.Bus. & Comm. Code Ann. § 2.316(b) sets out such methods of exclusion:

“(b) Subject to Subsection (c) to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example ‘There are no warranties which extend beyond the description on the face hereof.’ ” (Emphasis added.)

See K & S Oil Well Service, Inc. v. Cabot Corporation, Inc., 491 S.W.2d 733 (Tex. Civ.App.—Corpus Christi 1973, writ ref’d n.r.e.). See also Weintraub, Disclaimer of Warranties and Limitation of Damages for Breach of Warranty under the UCC, 53 Texas L.Rev. 60 (1974). Section 2.317 Tex.Bus. & Comm. Code Ann. states that warranties, whether express or implied, shall be construed as consistent with each other and as cumulative.

In reviewing the record, we find no evidence that Servtex did in fact exclude any implied warranties in accordance with Section 2.316(b), nor was there any intention evidenced on the part of Servtex to exclude such implied warranty, or that said warranties are inconsistent with each other. Appellant cites to us only one case for the proposition that a written warranty excludes the possibility of an implied warranty respecting the same subject matter. E. F. Elmberg Co. v. Dunlap Hardware Co., 234 S.W. 700 (Tex.Civ.App.—Amarillo 1921, no writ). This case was decided prior to the adoption of the Uniform Commercial Code in 1966, and thus, was not governed by the Code, as we are today. In a more recent case, Bowen v. Young, 507 S.W.2d 600 (Tex.Civ.App.—El Paso 1974, no writ), the court held that to exclude implied warranties, the seller must comply with Section 2.316 of the Code. See also S-C Industries v. American Hydroponics System, 468 F.2d 852 (5th Cir.1972). Appellant Servtex’s points of error 15 through 21 are overruled.

Appellant Servtex next asserts in its points of error 22 through 40 that there was no evidence or insufficient evidence to support the jury’s finding in Special Issues 6, 7, 8, 9 and 10 that Servtex breached an implied warranty of fitness for a particular purpose of the material sold by it to Fowco. Basically, there are two facts which must be proved before an implied warranty of fitness for a particular purpose arises and Servtex contends these were not so proved. First, Servtex at the time of contracting with Fowco must have known or had reason to have known the particular purpose for which these goods (asphalt) were required. Parks v. Glidden Company, 433 S.W.2d 445 (Tex.Civ.App. — Texarkana 1968, writ ref’d n.r.e.). The “particular purpose” envisions a specific use by the buyer which is peculiar to the nature of his business. In this instance, the particular purpose of the asphalt supplied by Servtex was for paving of parking lots and entrances at Alice High School. At the time Fowco entered its order with Servtex, Servtex knew of the particular purpose for which the asphalt was to be used. This was evidenced by the above quoted certificate from Serv-tex to Fowco.

Lewis Fowler also testified that in ordering the asphalt from Servtex he informed Mr. Rheinluender, an employee of Servtex, that the materials were to be used for the paving of parking areas and driveways of Alice High School. With this admitted knowledge, along with Lewis Fowler’s testimony, it is evident that Servtex knew or should have known the nature of the purpose for which the asphalt would be used. Parks v. Glidden Company, supra; Tennessee Carolina Transp., Inc. v. Strick Corp., 283 N.C. 423, 196 S.E.2d 711 (1973). Secondly, Fowco must show that it relied on Servtex’s skill and/or judgment to select or furnish suitable goods. Brown v. ASGROW Seed Company of Texas, 379 S.W.2d 412 (Tex.Civ.App.—San Antonio 1964, writ ref’d n.r.e.); Craftsman Glass, Inc. v. Cathey, 351 S.W. 2d 950 (Tex.Civ.App.—Amarillo 1961, no writ). Lewis Fowler repeatedly testified that he did in fact rely on the representation in Servtex’s certificate, together with representation by Servtex that their material was of good quality. From the record, we find that there was sufficient evidence to support the jury’s finding that the implied warranty of fitness for a particular purpose existed and was in fact breached by Servtex.

Servtex next complains that the admission of testimony concerning an alleged inspection of the project by Servtex representatives, over Servtex’s objection, was so prejudicial as to constitute reversible error. We disagree. Servtex asserted that the asphalt supplied to Fowco was misused by Fowco. The jury found that there was no misuse on Fowco’s part. The testimony was relevant to the misuse issue submitted to the jury. It was not reversible error to allow its introduction. Tex.R. Civ.P., Rule 434.

Appellant Servtex next complains that Fowco’s proper measure of damages was the difference in market value of the material as delivered and warranted, and not the reasonable and necessary sum of money required to be expended to correct the defective paving job, as was submitted in Special Issues 4 and 10. The applicable statutes are Sections 2.714(b), (c) and 2-715 of the Uniform Commercial Code, Vernon’s Annotated Texas Statutes. Section 2.714 provides in part:

“(b). The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount. (Emphasis added.)
(c) In a proper case any incidental and consequential damages under the next section may also be recovered.”

Sec. 2.715 of the Uniform Commercial Code, Buyer’s Incidental and Consequential Damages, provides:

“(a) Incidental damages resulting from the seller’s breach include * * * any other reasonable expense incident to the delay or other breach.
(b) Consequential damages resulting from the seller’s breach include (1) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
(2) injury to person or property proximately resulting from any breach of warranty.”

There is abundant evidence that Servtex knew the exact needs of Fowco at the time of supplying the asphalt. Thus, Servtex could have reasonably foreseen that if the asphalt proved defective and failed, the entire job would have to be taken up and would have to be completely redone. See Ligon v. Chas. P. Davis Hardware, Inc., 492 S.W.2d 374 (Tex.Civ.App.—Austin 1973, no writ). Since the asphalt was defective, it had no value. There was evidence that another job to which Servtex supplied its asphalt, went bad and the defective asphalt had to-be taken up and the job redone with Servtex supplying new asphalt. The evidence amply supports the findings of the jury that the failure of the asphalt was the proximate cause of the failure of the Alice High School Paving Project. In the instant case, the ordinary measure of damages for breach of warranty stated in Section 2.714(b) of the Uniform Commercial Code is not applicable because of special circumstances showing proximate damages of a different amount. The proximate damages, in this case consist of incidental and consequential damages as provided by Section 2.715 of the code. General Supply and Equipment Co., Inc. v. Phillips, 490 S.W.2d 913 (Tex.Civ.App.—Tyler 1972, writ ref’d n. r. e.); Sears, Roebuck & Co. v. Hough, 421 S.W. 2d 714 (Tex.Civ.App.—Houston [14th Dist.] 1967, no writ); Cruz v. Ansul Chemical Company, 399 S.W.2d 944 (Tex. Civ.App.—Corpus Christi 1966, writ ref’d n. r. e.). For these reasons, the court was correct in submitting Special Issues Numbers 4 and 10. Appellant Servtex’s points 22 through 40 are overruled.

Since our above holdings are dispositive of the fundamental questions in this case, we do not deem it necessary to discuss in further detail the points of error submitted. We have carefully considered all 59 points of error of Servtex and all of the points of error of Appellant Lanphier and they are overruled.

Judgment of the trial court is affirmed.

OPINION ON MOTION FOR REHEARING

Appellant Lanphier Construction Company in its motion for rehearing re-asserts that this Court has erred in not disregarding the jury’s answer to Special Issue No. 1 and in not rendering judgment in favor of Lanphier for $30,088.40 instead of affirming the trial court’s judgment for $20,000.00. Lanphier alleged (in its second amended petition) that it was required to pay Heldenfels Brothers the sum of $29,450.00 for redoing certain paving work plus an additional $638.40 for restripping. Lanphier further alleged that such sums were both reasonable and necessary costs of having the work redone. The record clearly shows that there was conflicting testimony as to what the “reasonable charge” for such work was. The trial court submitted the following special issue:

“ISSUE NO. 1
Find from a preponderance of the evidence the reasonable and necessary sum of money, if any, required to be expended by Lanphier Construction Company to correct the defective and unacceptable asphalt paving job performed at the Alice High School by Fowco Construction Company.
Answer in dollars and cents, if any.
Answer: $20,000.00” (Emphasis supplied).

The above issue as submitted was not objected to by either Lanphier or any of the other parties. In its amended motion for new trial, Lanphier complains that the submission of Special Issue No. 1 was unnecessary and that plaintiff was entitled to recover the undisputed sum expended in correcting such defective work ($30,088.40) as a matter of law.

For the first time on appeal, Lan-phier asserts that the issue as submitted was wrong, that the actual costs of completion and not the reasonable costs of completion was the proper amount that Lan-phier was entitled to. Lanphier says that this is true because of the contractual relationship between Lanphier and Fowco, citing Page v. Travis-Williamson County Water Control and Improvement District No. 1, 367 S.W.2d 307 (Tex.Sup.1963). Lanphier contends that the Page case does away with the requirement of objecting to an issue as submitted. We do not read the Page case that way. Lanphier, for the first time on appeal, asserts that because of a contractual provision in the contract between it and Fowco, Lanphier is entitled to recover the sum of $30,088.40 as a matter of law. Lanphier argues that its recovery should be based on the actual cost expended rather than the reasonable and necessary cost of reworking the job because such contractual provision provides for such. However, Lanphier did not plead this contractual provision nor did it raise any issue with respect thereto. We are not authorized to consider a theory of recovery that was not before the trial court and that the trial court was not called upon to decide. State of California Department of Mental Hygiene v. Bank of Southwest National Association, 163 Tex. 314, 354 S.W.2d 576 (1962); Findley v. Decker, 499 S.W.2d 350 (Tex.Civ.App.—Waco 1973, no writ); Del Rio Bank and Trust Company v. McCarty, 489 S.W.2d 178 (Tex.Civ.App.—San Antonio 1972, no writ).

There is another reason that Lan-phier is bound by such finding of the jury. Lanphier failed to object to the issue as submitted. Where the ground of recovery is submitted, even though it is erroneous, the parties are thereby put upon notice that the jury’s answers to the issues actually submitted will, if supported by the evidence, form the basis of the court’s judgment. It then becomes the duty of each party to point out errors of omission or commission, or be held estopped from thereafter urging them. Allen v. American National Insurance Company, 380 S.W.2d 604 (Tex.Sup.1964); Cox v. Huffman, 159 Tex. 298, 319 S.W.2d 295 (1959).

Lanphier continues its argument and contends that we should disregard Special Issue No. 1 for the reason that such issue is immaterial. We do not agree. An issue is immaterial when (1) it should not have been submitted; or (2) though properly submitted, it has been rendered immaterial by other findings. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.Sup.1966). Stating it another way, if a finding upon the issue claimed to be immaterial could if made, or does as made create a fatal conflict with other findings or otherwise affect the legal significance of the verdict and hence the judgment to be entered, the issue is material and must not be ignored. The issue as submitted does have an effect on the judgment and as such is not immaterial.

We have carefully considered all of the points of error in the motions for rehearing of Lanphier and Servtex Materials, and they are overruled.

      . In the event the Subcontractor refuses to man his portion of the work to the satisfaction of the General Contractor, then the General Contractor shall, after notifying the subcontractor of the situation in writing, man the job and back charge the subcontractor for the work. It is agreed that Sub-Contractor shall have forty-eight (48) hours after the receipt of the letter to fulfill his obligations.