author: SHANNON, Justice.

text:
    MONTGOMERY WARD AND COMPANY et al., Appellants, v. MARVIN RIGGS COMPANY, Appellee.
    No. 12895.
    Court of Civil Appeals of Texas, Austin.
    Rehearing Denied on Motion for Rehearing July 11, 1979.
    Second Motion for Rehearing Denied Aug. 22, 1979.

      Tom H. Whiteside, Griffis & Griffis, San Angelo, for appellants.

      Richard T. Miller, James A. Childress, Senterfitt, Adams, Miller & Childress, San Saba, for appellee.
   SHANNON, Justice.

The opinion of this Court handed down on May 30, 1979, is withdrawn, and the following opinion replaces it.

Appellee Marvin Riggs Company sued appellants Montgomery Ward and Company and its employee Michael Lynn Cross in the district court of San Saba County. Appel-lee’s suit was to recover for damages to appellee’s truck sustained in a collision with Ward’s truck. After a jury trial, judgment was entered against both appellants for $10,681.00 in compensatory damages and against Montgomery Ward for $5,000.00 in exemplary damages. We will affirm the judgment.

In its trial petition, appellee declared that on May 31, 1977, Cross struck appellee’s truck while negotiating a “U-turn” in a Ward’s truck on Highway 16 north of San Saba. Appellee pleaded that Cross was guilty of negligence in several respects. Appellee also alleged that Montgomery Ward negligently entrusted the truck to Cross, “an inexperienced, reckless, careless, irresponsible and incompetent” driver, and that under the circumstances the entrustment of the truck to Cross constituted gross negligence.

In response to the court’s charge, the jury answered that Cross was guilty of several acts of ordinary negligence that proximately caused the collision. In response to those issues submitting appellee’s theory of negligent entrustment, the jury found that Cross was incompetent to drive the truck, that in the exercise of ordinary care Montgomery Ward should have known of Cross’ driving incompetence, that Montgomery Ward was grossly negligent in entrusting the truck to Cross, and that Montgomery Ward’s act of entrusting the truck to Cross was a proximate cause of the collision. The jury assessed exemplary damages in the sum of $5,000.00.

Appellants’ points of error two, three, and four are that the jury’s answer that Ward was grossly negligent in entrusting the truck to Cross is supported by no evidence or alternatively by insufficient evidence. In considering a “no evidence” point, the reviewing court must reject all evidence contrary to the jury’s findings and consider only the facts and circumstances which tend to support those findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). In reviewing factual sufficiency points of error, the court considers all of the evidence to determine whether the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Cross was twenty at the time of the collision. He had never held a job that entailed driving a truck prior to his employment by Montgomery Ward. Cross testified that he had received in the year preceding his employment by Ward two traffic citations for speeding, one for running a stop sign, and one for failing to yield right of way. Cross testified that no one gave him any special training at Ward for driving a truck. He passed the examination for a commercial operator’s license after he had been employed by Ward. Prior to the trip in question, Cross had driven the truck alone only one time. The truck that Cross was operating at the time of the collision was over twenty-eight feet long, weighed ten to twelve thousand pounds, and was difficult to drive because a van behind the cab restricted the driver’s vision.

Appellee relied primarily upon the testimony of Skip Sommeral for proof of its negligent entrustment case. Sommeral was a former employee of Montgomery Ward, where he had been a truck driver and delivery man. At the behest of Ward, Sommeral tried to teach Cross how to drive a truck. He encouraged Cross to study the manual so that Cross might obtain his commercial license. On one occasion when Sommeral and Cross were on a run between Rising Star and De Leon, Sommeral permitted Cross to drive the truck. He also drove two blocks in De Leon. During that trial run, Cross got so “excited on a turn” that Som-meral decided to resume driving.

Sommeral testified that Cross could not judge distances accurately. Cross may have had a vision problem. He had difficulty in learning to use the mirrors of the truck. When Cross was put in a stressful situation he became “flustered and nervous almost to the point where he couldn’t do anything.” Cross was a nervous driver and a slow reactor. He was also hard of hearing.

Several times Sommeral told John Hopewell, the operating assistant manager of Montgomery Ward in Brown wood, that Cross was “awfully slow to catch on about the truck” and that Cross should not be “turned loose on the truck.” Before Som-meral left Ward’s employment, he told Hopewell that it would be “a good long” time before Cross could become “really safe” with the truck. He told Hopewell, in addition, that Cross might “not ever be a truck driver because [Cross] was nervous.” According to Sommeral, he reported to Hopewell that Cross “. . . wasn’t a truck driver at that time [May of 1977] and that it was going to take a considerable time and patience with him to make him a truck driver if he ever became one.” One response by Hopewell to such reports of Cross’ driving competence was that because Cross had a commercial license, he was qualified to drive a truck.

Hopewell testified that prior to hiring Cross he checked with the Brownwood Police Department with respect to Cross’ police record, but did not write to the Department of Public Safety to obtain his driving record. The testimony was that the driving record showed that Cross’ operator’s license had been suspended but “probated” just prior to his employment by Ward. Hopewell testified that he would not have hired Cross had he known that Cross’ driver’s license had been suspended.

The court defined gross negligence in the charge as “. . . such an entire want of care which would raise the belief that the act or omission complained of was the result of conscious indifference to the rights and welfare of the person or persons to be affected by it.” Appellants preserved no objection to the definition.

Rejecting all of the evidence contrary to the jury’s finding of gross negligence and considering only the facts and circumstances that tend to support that finding, Renfro Drug Co. v. Lewis, supra, we have concluded that the jury’s finding is supported by some evidence. Montgomery Ward made no effort to obtain a copy of the driving record of Cross. Had that record been obtained, Ward would have been apprized of Cross’ past driving performance. Cross lacked judgment and suffered from visual and hearing deficiencies. Cross could not handle stressful situations. Sommeral was of the view that Cross was slow in learning how to drive a truck and that, accordingly, he should not be "turned loose” with such a vehicle. There was evidence that Sommeral related these facts to Ward’s agent, Hopewell. Hopewell, knowing Cross’ minimal driving capabilities, put Cross behind the wheel to make the delivery to San Saba. The “no evidence” point is overruled.

We have considered all of the evidence in the record, some of which has been detailed above, and have concluded the jury’s finding of gross negligence is not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, supra. Appellants’ “insufficient evidence” points of error are overruled.

Appellants’ first point of error is that the district court erred in entering judgment awarding exemplary damages against Montgomery Ward because appellee failed to obtain a jury finding of gross negligence on the part of Ward’s driver. Appellants rely upon Restatement of Torts (Second) § 909(b) as basis for point of error one. Section 909 provides in part that a principal or master is liable for exemplary or punitive damages because of the acts of his agent if “(b) the agent was unfit and the principal was reckless in employing him.” Section 909 is concerned, of course, with the vicarious liability of the master for his agent’s acts. Appellants argue, correctly, that the comments and illustrations pertaining to § 909 indicate that the act of the agent must be of a character subjecting the agent to liability for exemplary damages before the master can be held vicariously liable for such damages.

In this appeal, the judgment for exemplary damages against Ward is not predicated upon Ward’s vicarious liability for the acts of its agent Cross. Instead, the judgment for exemplary damages is based upon favorable jury findings in response to appel-lee’s case in negligent entrustment that established Ward’s direct liability for its own gross negligence. Section 909 is not applicable to the facts of this case as submitted to and found by the jury.

We have not found any case holding that a corporation, grossly negligent in hiring an incompetent employee, may be held directly liable for exemplary damages to a third party damaged by the ordinary negligence of the incompetent employee. However, several cases contain such statements or reach such results. Adams Leasing Company v. Knighton, 456 S.W.2d 574 (Tex.Civ.App.1970, no writ); Goff v. Lubbock Building Products, 267 S.W.2d 201 (Tex.Civ.App. 1953, writ ref’d n. r. e.); Hines v. Nelson, 547 S.W.2d 378 (Tex.Civ.App.1977, no writ); Wilson N. Jones Memorial Hospital v. Davis, 553 S.W.2d 180 (Tex.Civ.App.1977, writ ref’d n. r. e.).

Montgomery Ward was grossly negligent in entrusting the truck to an incompetent driver. Under the facts and circumstances of this case, it was certainly foreseeable that damage to property or person could result from the operation of the truck by such a driver. We are of the view that both the punitive and deterrent purposes of exemplary damages are served by requiring Ward to respond in such damages when its own gross negligence in employing an incompetent driver resulted in the foreseeable collision, even though the driver was guilty in this instance of only ordinary negligence.

With respect to the compensatory damage issues, the jury answered, inter alia, that the reasonable cost of repairs to the truck was $3,181.00; the reasonable expense necessarily incurred in arranging for the truck repair was $300.00; and the value of the loss of use of the truck during repair was $2,400.00.

By point of error five appellants claim that there was no evidence to support the jury’s answer that the reasonable cost of repairs to appellee’s truck was $3,181.00. Appellants’ point is directed to only $405.44 of the $3,181.00 sum answered by the jury. The balance, $2,775.56, was stipulated by the parties, and read into evidence, as being the necessary and reasonable cost of repairs to appellee’s truck. The items represented by the $405.44 sum were the replacement of a truck tire and a “C.B.” radio antenna, repair to the truck trailer, and loss of a tank of fuel.

Marvin Riggs, appellee’s president, testified concerning these items. Riggs had been in the trucking business for over thirty years. At the time of the collision, his company was operating nine trucks. Riggs was familiar with the cost of repair or replacement of the items in dispute. He testified that the repair or replacement cost of each of the items was reasonable and that each repair or replacement was occasioned by damage incurred in the collision. Point five is overruled.

In point six appellants claim there is no evidence to support the jury’s finding that the reasonable expense necessarily incurred in arranging for the repairs to the truck was $300.00. Marvin Riggs testified without objection that appellee incurred expenses in the sum of $312.00 for hauling the damaged truck and trailer from San Saba to San Angelo. Riggs testified that such expense was a reasonable and necessary charge at the time it was incurred. Point of error six is overruled.

Appellants’ point of error ten is that the district court erred in permitting the investigating officer to give opinion testimony with respect to the driving conduct of ap-pellee’s driver. Specifically, appellants claim that the officer was not qualified to give opinion testimony as to whether appel-lee’s driver (1) could have gone safely around Ward’s truck to the right; (2) would have overturned if he went to the right; (3) could have done nothing to prevent the accident; and (4) was not exceeding the speed limit.

The investigating officer was Leslie L. Dawson, a “state trooper” employed by the Department of Public Safety for some fourteen years. Dawson received about forty hours instruction in accident investigation. Every two years the officers of the Department receive a refresher course that usually includes accident investigation. Not surprisingly, Dawson declined counsel’s invitation to label himself as an “accident reconstruction expert.” In his prior appearances as a witness in civil matters, Dawson had testified about “. . . skid marks, distances and this sort of thing.”

Counsel for appellee asked the investigating officer, “Mr. Dawson, do you know of anything that Mitchell Riggs could have done to prevent the accident?” Dawson answered that he did not. Appellants’ objection was, “I object to the testimony on that [sic] basis that he is not qualified as an expert in this field.”

Had appellants objected upon the basis that an inquiry as to the absence of fault on the part of appellee’s driver was improper, then the objection should have been sustained. Opinion as to fault, or absence thereof, is inadmissible whether the witness be expert or lay. Flores v. Missouri-Kansas-Texas Railroad Company, 365 S.W.2d 379 (Tex.Civ.App.1963, writ ref’d n. r. e.); 2 McCormick & Ray, Texas Law of Evidence, § 1431 (2d ed. 1956). Counsel’s objection, however, only questioned Dawson’s qualification as an expert witness. Whether or not Dawson was qualified, his opinion as to absence of fault was still inadmissible. Nevertheless, because the proper ground was not stated in the objection, the district court did not err in overruling the objection.

Appellants’ objection to the question and answer as to whether appellee’s driver was exceeding the speed limit did not preserve any error for review. The objection was, “All right, your honor, I object to this testimony.” A valid objection to the offer of evidence is one that names a particular rule of evidence that will be violated by the admission of the evidence. Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170 (1938). By objecting generally, appellants waived any complaint they may have had concerning the question and answer.

The court’s charge submitted no inquiry as to the negligence of appellee’s driver in failing to turn his vehicle to the right, and appellants requested no such submission. Accordingly, any error by the court in allowing the opinion testimony concerning the driver’s ability or inability to turn to the right was harmless. Tex.R.Civ.P. 434.

Appellants’ points seven, eight, and nine are “no evidence” and “insufficient evidence” points complaining of the jury’s answer concerning the value of appellee’s loss of use of the truck during the time of its repair. These points of error are without merit and are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: GUITTARD, Chief Justice.

license: Public Domain

text:
    Paul BODOVSKY and Charles Everson, Appellants, v. TEXOMA NATIONAL BANK OF SHERMAN, Appellee.
    No. 19641.
    Court of Civil Appeals of Texas, Dallas.
    May 10, 1979.
    Rehearing Denied July 23, 1979.

      Stephen F. Hefner, Hefner & Associates, Roger D. Sanders, Jarvis, Grisham & Sanders, Sherman, for appellants.
    Paul Brown, Brown, Hill, Ellis & Brown, Sherman, for appellee.
    Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
   GUITTARD, Chief Justice.

In this suit on certain promissory notes, the defendants pleaded fraudulent representations and fraudulent concealment as a defense and as an offset, and also counterclaimed for damages for fraud. After a jury trial, the court awarded plaintiff judgment on the notes, disregarding certain findings in defendants’ favor. With respect to the counterclaim, the court sustained plaintiff’s plea of limitation, refusing to disregard other findings to the effect that defendants discovered the fraud, or should have discovered it, more than two years before they filed their plea of fraud. Defendants appeal from both aspects of the judgment. We hold that unchallenged jury findings support the allegations of fraud as a defense or offset to the main claim, but that the plea of limitation was properly sustained with respect to the counterclaim because of jury findings that more than two years before filing their counterclaim, defendants discovered some of the misrepresentations and became aware of facts that would have led a reasonable person to make an investigation that would have revealed the fraud. Accordingly, we reverse and remand with instructions to render judgment denying recovery on the notes, except to the extent that they cover advances not affected by the fraud, and we affirm denial of recovery on the counterclaim.

1. Fraud as a Defense or Offset

The indebtedness in question was initially incurred in 1969, when defendants Bodov-sky and Everson borrowed $18,500 from Texoma National Bank of Sherman to finance their purchase of certain restaurant equipment on which the bank held a lien. At the same time defendants borrowed $4,000 as operating capital for their restaurant business. Defendants made payments from time to time and signed renewal notes in various amounts in 1970, 1971, and 1972. Another renewal note in the amount of $13,000 was signed in 1973 by defendant Bodovsky but not by defendant Everson. This note included a balance on the 1972 note, as well as other funds advanced by the bank to defendants.

The court submitted special issues with respect to defendants’ allegations of affirmative representations and of concealment. The jury found that the bank’s officers made various representations they knew were false, or made them with the intention of not fulfilling them, and that such representations were material inducements and were relied on by both defendants in purchasing the restaurant equipment. The jury also found in response to issues ten, eleven, and twelve that defendants did not discover that the representations were false before they signed renewal notes in 1970, 1971, and 1972. The judge disregarded these latter findings with respect to certain of the representations, thus holding that the evidence established as a matter of law defendants’ discovery of the falsity of those representations before they signed the renewal notes. Among the representations that were so discovered, according to the judge, were that all the restaurant equipment would become defendants’ property and that it was free of debt.

Corresponding findings with respect to other representations, however, were not disregarded and stand here without challenge.' Among these representations were that the restaurant equipment had substantial value and could have been sold without difficulty. Consequently, we must determine whether the judgment can be supported on the theory that defendants discovered the falsity of some, but not all, of the representations before they signed the renewal notes.

Apparently, the trial court submitted the issues concerning defendant’s discovery of the falsity of the representations before signing the renewal notes on the theory that by signing the renewal notes with such knowledge defendants waived the fraud and affirmed or ratified the obligations represented by the notes, under the rule applied in such cases as Gaylord Container Division v. H. Rouw Co., 392 S.W.2d 118, 120 (Tex.1965), and Shaw Equipment Co. v. Hoople Jordan Const. Co., 428 S.W.2d 835, 839 (Tex.Civ.App.—Dallas 1968, no writ). Consequently, the question before us is whether the court properly applied the doctrine of waiver or ratification because of defendants’ execution of the renewal notes after discovery of part, but not all, of the representations which the jury found to have been material inducements to the original transaction.

The bank cites cases holding that waiver or ratification requires discovery of only the material facts, not knowledge of the full extent of the falsity of the representations on which the defrauded party relied. Waggoner v. Zundelowitz, 231 S.W. 721, 727 (Tex.Com.App.1921, judgmt. adopted); Caprito v. Grisham-Hunter Corp., 128 S.W.2d 149, 159 (Tex.Civ.App.—Eastland 1939, writ dism’d); Allen v. Lasseter, 35 S.W.2d 753, 757 (Tex.Civ.App.—Waco 1931, writ ref’d). Other authorities state that waiver of the fraud and ratification of the original transaction must be based on proof that the ratifying party had full knowledge of the fraudulent acts at the time of ratification. Wise v. Pena, 552 S.W.2d 196, 200 (Tex.Civ. App.—Corpus Christi 1977, writ dism’d); Viracola v. Dallas Int’l Bank, 508 S.W.2d 472, 474 (Tex.Civ.App.—Waco 1974, writ ref’d n. r. e.); Andrews v. Powell, 242 S.W.2d 656, 661 (Tex.Civ.App.—Texarkana 1951, no writ). Accordingly, it is said that the doctrine of waiver or ratification is founded on knowledge of all the facts and not on negligence in failing to discover them. Most Worshipful Grand Lodge Free & Accepted Masons v. Hayes, 82 S.W.2d 411, 414 (Tex.Civ.App.—Dallas 1935, no writ).

Defendants rely principally on Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025, 1030 (1923), in which a plaintiff was held not to have waived her claim for rescission of an exchange of lands by failing to bring suit promptly after discovering that some of the representations made to her at the time of the exchange were false. The opinion states that the misrepresentations she discovered did not constitute “the material facts of fraud in the trade.”

This element of materiality is the only theory on which these apparently conflicting authorities can be reconciled. In order to establish waiver or ratification, the proof must show that the defrauded party had knowledge of the material facts concerning the fraud at the time of making a new contract or taking other action inconsistent with repudiation of the original transaction. Although materiality is a necessary element, the test of materiality in this context has never been clearly stated. Jury findings, as in this case, that certain representations were material inducements to the original contract and had not been discovered to be false at the time of the alleged waiver or ratification, are not conclusive. Under our interpretation of Dea-ton v. Rush, the test is whether the fraudulent representations actually discovered were material in the sense that a person of ordinary prudence, after such discovery, would not have continued to rely on the other representations made at the time of the original transaction. If so, it would be consistent with the actual results in all the cases to hold that execution of a new contract based on the original transaction waives the fraud and ratifies the original transaction.

This test, when applied to the findings in this case and the judge’s action in disregarding certain of them, leaves a fact question that was not submitted to the jury. The false representations which the judge found as a matter of law to have been discovered by defendants before signing the renewal notes are the following: that the false shingle roof, carpets, and light fixtures were a part of the restaurant equipment and would become the property of defendants; that a loan could be made with the restaurant equipment as the only collateral because of its value; that the bank would sell the restaurant to defendants at half-price for $18,500; that everything they saw in the restaurant was being included in the sale; that there was no outstanding indebtedness on the restaurant; that all the items described in the former owner’s bill of sale were free and clear of debt; and that the difference between their note and the indebtedness of the former owner would be absorbed in a new note being signed by him. On the other hand, the jury’s findings of non-discovery stand unchallenged with respect to the following representations: that the bank would make defendants a “good deal” on the restaurant; that the restaurant equipment had substantial value; that no business records were available for inspection; that the bank had loaned the former owner $37,000 to open and operate the restaurant; that the bank had already written off the former owner’s note as a bad debt for tax purposes; that if defendants did not make a go of the restaurant, the equipment could be sold without difficulty; that another party had offered more than defendants were getting the equipment for and that still another was interested in purchasing; that all of the equipment described in the former owner’s bill of sale was being conveyed to them; and that the difference between the amount of their note and the indebtedness of the former owner would be absorbed in a new note being signed by the former owner.

In view of these unchallenged findings, the judge could properly render judgment for the bank only if the evidence established as a matter of law that the misrepresentations discovered were material in the sense already explained, namely that after such discovery persons of ordinary prudence in defendants’ circumstances would not have continued to rely on the representations which were not discovered. Ordinarily, this is a fact question because waiver is a question of intention and presents a question for the jury when it is a matter of inference. Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865 (1958).

After reviewing the record, we conclude that a fact question is presented in this respect. The bank has not challenged the trial court’s finding that a confidential relationship existed between defendants and the bank’s officers at the time of the original transaction. There is evidence that when defendants discovered certain debts against the restaurant equipment, the president of the bank arranged to take care of the debts and advised defendants not to worry. Under these circumstances we cannot say as a matter of law that when defendants executed the renewal notes, persons of ordinary prudence in their situation would not have continued to rely on the representations not yet discovered. Consequently, we hold that under the authorities above discussed, the trial court could not properly render judgment for the bank on its main claim on the theory that defendants’ claim of fraud was waived as a matter of law and that the original transaction was ratified by execution of the renewal notes.

Neither can we presume that the judge made a finding of fact on the unsub-mitted issue of materiality of the false representations which were discovered because the court did not render judgment on the verdict. In effect the court rendered judgment for the bank on the main claim notwithstanding the verdict. Consequently, no presumption can apply that the judge made a fact finding in support of the judgment. Rodriguez v. Higginbotham-Bailey-Logan Co., 138 Tex. 476, 160 S.W.2d 234 (1942). We hold, therefore, that the court erred in rendering judgment for the bank on the notes.

The bank seeks also to uphold the judgment on the ground of limitation. We hold, however, that limitation is not available to defeat the defense of fraud on the main claim because limitation does not apply to fraud pleaded defensively to defeat liability on an obligation induced by fraud. Mason v. Peterson, 250 S.W. 142, 146-47 (Tex.Com. App.1923, holdings approved); Finger v. Morris, 468 S.W.2d 572 (Tex.Civ. App.—Houston [14th Dist.] 1971, writ ref’d n. r. e.); Reynolds-Southwestern Corp. v. Dresser Industries, Inc., 438 S.W.2d 135 (Tex.Civ.App.-Houston [14th Dist.] 1969, writ ref’d n. r. e.); Payne v. Beaumont, 245 S.W. 94 (Tex.Civ.App.—San Antonio 1922, writ ref’d). Similarly, limitation does not apply to a plea of recoupment based on a demand arising from the same transaction as the plaintiff’s claim and predicated on a factor that would vitiate the contract sued on as of the time the contract was made. Southern Pac. Co. v. Porter, 160 Tex. 329, 331 S.W.2d 42, 45 (1960). Designation of a recoupment claim as an “offset,” as in this case, makes no difference. Garza v. Allied Finance Co., 566 S.W.2d 57, 63 (Tex.Civ. App.—Corpus Christi 1978, no writ). Consequently, we hold that to the extent that the bank’s present claim is based on the original indebtedness incurred at the time the representations were made, it must be reduced by the amount of the damages resulting from the false representations. Since the jury found that the market value of the restaurant equipment at the time of the sale was $5,000, as compared to the price of $18,500 which defendants paid for it, defendants’ damages amounted to the difference, or $13,500. This amount is well in excess of the $5,331.23 which the court found to be due on the renewal note of January 24, 1972. The court erred, therefore, in rendering judgment for the bank on the original obligation and should have limited defendants’ liability on the notes to amounts advanced to defendants in subsequent transactions not affected by the fraud.

2. Fraud as a Basis for Counterclaim

The bank’s plea of limitation stands on a different footing with respect to defendants’ counterclaim. Insofar as defendants seek affirmative recovery on their counterclaim for actual and exemplary damages, the bank may appropriately interpose its plea of limitation. Southern Pac. Co. v. Porter, 160 Tex. 329, 331 S.W.2d 42, 45 (1960); Swaim v. Int’l Harvester Co., 505 S.W.2d 634, 637-38 (Tex.Civ.App.—Fort Worth 1974, writ ref’d n. r. e.). The bank alleged in its supplemental petition that the matter alleged in defendants’ counterclaim was known to defendants more than two years before their first pleading of fraud or should have been discovered by that time in the exercise of reasonable diligence.

Defendants contend that the applicable limitation period is four years rather than two because their counterclaim is based on a claim for rescission of the notes signed by them. On this ground defendants assert that their counterclaim is governed by the period applicable to claims for rescission of written instruments. In this connection, they cite LaFleaur v. Kinard, 161 S.W.2d 144 (Tex.Civ.App.—Beaumont 1942, writ ref’d w. o. m.), which was a suit to cancel a royalty conveyance on the ground of fraud.

We do not regard defendants’ counterclaim in this suit as a claim for rescission. To rescind the entire transaction, including the purchase of the equipment, defendants would have had to make the former owner a party, since the bank had only a security interest. The counterclaim alleges that defendants were damaged in the sum of $31,626.22, which they alleged to be the difference between what they parted with “in an attempt to maintain the agreements in question” and the value of what they actually received. This allegation affirms the contract and asserts damages measured by defendants’ loss if the transaction is allowed to stand, rather than a claim for rescission and restitution. They also allege exemplary damages in the amount of $125,000. We hold that this pleading states a common-law claim for damages for fraud or deceit and is governed by the two-year statute of limitation, Tex.Rev.Civ.Stat.Ann. art. 5526 (Vernon 1958). Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876, 879 (1962).

Accordingly, we must examine the jury’s findings to determine whether they support the bank’s plea of limitation. These findings are that prior to August 22, 1973 (two years before defendants filed their counterclaim), defendant Bodovsky became aware of facts that would have led a reasonable man to make an investigation on his own concerning the alleged representations and concealment (issue number seven); that Bodovsky and Everson had a reasonable time to make an investigation before that date (issue number eight); and that a reasonable investigation by Bodovsky and Everson would have revealed the falsity of the representations or the existence of the matters concealed (issue number nine).

Defendants do not attack these findings for insufficiency of evidence. They assert, rather, that they are evidentiary, inconclusive, and irrelevant in view of the jury’s finding in answer to issue number three. In response to issue number three, the jury found that before the restaurant equipment was purchased on October 8,1969, there had been established a confidential relationship between the officers of the bank and the defendants regarding defendants’ purchase of the equipment. Defendants argue that in view of this confidential relationship, limitation did not begin to run until actual discovery of the fraud. In support of this argument, defendants cite, among other authorities, Courseview, Inc. v. Phillips Pet. Co., 158 Tex. 397, 312 S.W.2d 197 (1957).

We conclude that Courseview supports the judgment of the trial court sustaining the bank’s plea of limitation rather than the argument advanced by defendants. In that case the supreme court said that the existence of a relationship of trust and confidence does not change the rule that diligence in discovering fraud is required, but that such a relationship affects application of the rule and is one of the circumstances to be considered in determining whether the fraud might have been discovered in the exercise of reasonable diligence. This view was reaffirmed in International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 579-80 (Tex.1963). Under these authorities, the existence of a confidential relationship is an evidentiary matter bearing on the ultimate issue of whether under all the circumstances a person of ordinary prudence would have made an investigation that would have revealed the fraud. Accordingly, in answering issue number seven, the jury could properly take into consideration any confidential relationship shown by the evidence in determining whether a reasonable man would have made an investigation after discovering the facts of which Bodovsky was aware more than two years before the counterclaim was filed. These issues in themselves, however, are not evi-dentiary, irrelevant, or inconclusive. Any finding of a confidential relationship between the parties, therefore, would not be controlling on the limitation question.

Moreover, the finding of a confidential relationship could not be controlling because of the difference in the dates inquired about in the issues. The jury found in answer to issue number three that a confidential relationship existed on October 8, 1969, but issue number seven inquired whether Bodovsky became aware before August 22, 1973, of facts that would have led a reasonable person to make an investigation concerning the alleged misrepresentations. Any confidential relationship found to have existed in October 1969, however, would not be conclusive on the issue of whether a reasonable person would have continued to rely on it as late as August 1973, after the restaurant business had fallen into difficulties. The jury might well have concluded that any presumption of continuation of the relationship had been rebutted. Consequently, we hold that the trial court did not err in rendering judgment based on the jury’s findings that more than two years before the counterclaim was filed, Bodovsky became aware of facts which would have led a reasonable person to make an investigation that would have led to discovery of the fraud.

We need not pass on the question of whether the judge should have instructed the jury expressly in connection with issue number seven that in determining whether a reasonable person would have made an investigation, any confidential relationship between the parties should have been considered. The record fails to show that defendants requested such an instruction or objected to the issue on that ground, and neither do they urge here that the failure to give such an instruction requires a new trial.

The judgment sustaining the bank’s plea of limitation is supported also by the jury’s affirmative answer to issue number thirteen, as follows:

Prior to August 22, 1973 did Bodovsky and Everson discover the existence of the facts concealed found by you in answer to Special Issue No. 4 or that any representation found by you in answer to Special Issue Nos. 1 and 2 was not true?

This issue concerns defendants’ actual discovery of the fraud, as distinguished from knowledge of facts that should have led them to investigate, and relates to both Bodovsky and Everson.

Defendants attack this finding also on the ground that it is evidentiary, irrelevant, and inconclusive. They state that they objected to the issue in the trial court, but none of their points complain of any ruling of the judge on such objections. Neither do defendants seek a new trial because of any defect in the issue. Instead, they argue that the burden was on the bank to request proper issues submitting its limitation defense, and they insist that the trial court should have disregarded the jury’s answer and rendered judgment in their favor on the counterclaim. In particular, defendants contend that issue number thirteen cannot be accepted as a basis for the judgment because it is phrased in the disjunctive, so that the jury’s answer can mean either that defendants discovered the facts found to have been concealed in answer to issue number four, or that they discovered the falsity of any one of the various representations inquired about in the first two issues. Defendants suggest that the jury might have concluded that defendants discovered the existence of the facts concealed, but did not discover the falsity of any of the various representations found by the jury. They argue that discovery of some but not all of the fraudulent representations or concealments does not necessarily start limitation running.

We hold that the trial court did not err in refusing to disregard this finding. Even though it may have been subject to objection because of its disjunctive form and its evidentiary character, no timely objection on either of those grounds is before us, and the jury’s answer cannot be disregarded on those grounds. Defendants’ remedy for such defects was to make their objections before submission to the jury, and then, if such objections should be overruled, to assign such rulings here as grounds for a new trial.

This rule is well established by a long line of cases, many of which were reviewed by the supreme court in Allen v. American Nat’l Ins. Co., 380 S.W.2d 604 (Tex.1964), an analogous case on its facts. In that case a life insurance company defended an action on a policy on the ground that the insured had made false representations concerning his health. In answer to one of the issues submitted, the jury found that the insured “knew or should have known” that one of the representations made in the application for insurance was false. The trial court rendered judgment for the beneficiary and the insurer appealed, contending that the finding in question required a judgment in its favor. The beneficiary contended that judgment was properly rendered in her favor because the issue included the phrase “or should have known,” which was improper in view of the rule that a representation must have been known to be false in order to defeat liability on the policy. The supreme court recognized that the issue was erroneous in this respect, but nevertheless reversed and rendered judgment for the insurer, holding that under rule 274 of the Texas Rules of Civil Procedure, the beneficiary had waived the defect by failing to object. The court went on to say that the rule of waiver is operative regardless of whether the trial court awards or refuses to award judgment on an asserted claim or defense of which the issue itself is a ground or constitutes a component element. Id., at 609.

In the present case, issue number thirteen, though possibly defective, is not immaterial. Unquestionably, it was submitted in connection with the bank’s plea of limitation and gave notice to defendants that an affirmative answer might be taken as a basis for a judgment sustaining that plea. Consequently, defendants were required to point out any defect by a timely objection to the issue. They could not wait until after verdict and then assert that the finding should be disregarded in rendering judgment. Lanphier Const. Co. v. Fowco Const. Co., 523 S.W.2d 29, 43 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Panhandle & S. F. Ry. v. Friend, 91 S.W.2d 922, 930 (Tex.Civ.App.—Austin 1936, writ ref’d). A complaint that an issue is eviden-tiary rather than ultimate is among those that are waived by failure to make a timely objection, and in the absence of such an objection, an issue subject to such a complaint may form the basis of a judgment. Weingarten, Inc. v. Scott, 456 S.W.2d 266, 271 (Tex.Civ.App.—Houston [14th Dist.] 1970, no writ). Although in the cases cited the courts rested the waiver on the complaining party’s failure to make a timely objection, the same rule, in our opinion, applies if an objection is made but is not brought forward on appeal as a ground for a new trial.

We conclude that defendants are in no position to assert that the answer to issue number thirteen does not constitute a finding that all of the false representations found by the jury were discovered more than two years before the counterclaim was filed and, therefore, that this finding is evidentiary and inconclusive.

Though possibly incomplete, the issue was obviously referable to the bank’s plea of limitation and therefore gave notice to defendants that an affirmative answer might be taken as the basis of a judgment on that plea. If followed by an issue concerning materiality of the facts so discovered, affirmative answers to both would clearly have established the bank’s defense of limitations. At least, issue number thirteen was one component of this defense and was necessarily referable to it. In the absence of any request for submission of the additional component or any objection to the court’s failure to submit it, the trial court must be deemed to have found the unsubmitted component in favor of the judgment if there is evidence to support such a finding. Rule 279, Tex.R.Civ.P.; Kirk v. Standard Life & Acc. Ins. Co., 475 S.W.2d 570, 572 (Tex.1972); Rogers v. Ellsworth, 501 S.W.2d 756, 757 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n. r. e.). After reviewing the record, we are unable to say that there is no evidence to support such a deemed finding, and, indeed, defendants do not contend that there is no such evidence.

Judgment

For the reasons stated, we hold that the trial court erred in rendering judgment for the bank on its main claim on the notes, but we conclude that the court was correct in sustaining the bank’s plea of limitation with respect to the counterclaim. Accordingly, the judgment is affirmed with respect to the counterclaim, and, with respect to the main claim, the judgment is reversed and the cause is remanded with instructions to render judgment for the bank only to the extent of indebtedness incurred for advances and overdrafts subsequent to October 8, 1969.

No complaint is made here of defendants’ recovery of $3,500 for the bank’s failure to conduct the sale of the equipment in a normally commercial manner. The trial court allowed this amount as a credit on plaintiff’s recovery on the notes. In rendering judgment on remand, the court is instructed to award defendants recovery of this amount, but to offset it, to the extent it may properly be offset, against any recovery awarded to the bank. Costs of this appeal and of the trial court are assessed against the bank.

Affirmed in part, and reversed and remanded in part, with instructions.

ON MOTION FOR REHEARING

Defendants raise in their motion for rehearing several questions deserving further discussion. They assert that we erred in holding that the issues disregarded by the trial judge related only to the theory of waiver. These issues, they insist, were also components of and were referable to plaintiff’s theory of limitation, and defendants argue that we cannot properly deem any issues found in favor of a judgment rendered in disregard of any jury findings.

We adhere to the views stated in our original opinion. We did not consider the disregarded findings as bearing on the issue of limitation because they did not inquire concerning defendant’s knowledge on August 22, 1973, two years before defendants filed their counterclaim alleging fraud. Rather, those issues inquired concerning defendants’ knowledge on certain dates in 1970, 1971, and 1972, when the renewal notes were signed. Those dates would be significant only on the theory of waiver or ratification. The answers, if allowed to stand, would not have negated the defense of limitation because they did not establish that defendants had no knowledge of the fraud on August 22, 1973, two years before the counterclaim was filed. We recognize that if the issues in question had been answered in plaintiff’s favor, they might have affected the period of limitation because if defendants had known of the fraud in 1970, 1971, and 1972, limitation would have begun to run even before August 22, 1973. In that event, however, knowledge of the fraud at the time of execution of the renewal notes would have established the defense of waiver or ratification, and limitation would have been immaterial. Consequently, we do not view the disregarded issues as bearing on limitation as a defense to the counterclaim.

Defendants further contend that we erred in failing to hold that the trial court erred in disregarding the answers to the waiver issues which were favorable to defendants, and in rendering judgment notwithstanding those answers. We held that the court erred in rendering judgment on the main claim notwithstanding those answers because, even if they were properly disregarded, the element of materiality was not submitted, and no finding on the omitted issue could be deemed in support of a judgment notwithstanding the jury’s answers. Thus, in our view of the case, plaintiff failed to establish waiver and it was not necessary to consider whether there was evidence to support the disregarded answers.

In our original opinion we did not discuss the bearing of the waiver issues on the counterclaim because if waiver of the fraud was not established with respect to the main claim, neither was it established with respect to the counterclaim. We did not hold that the judgment against defendant on their counterclaim can be supported on the theory of waiver or on the action of the judge in disregarding some of the answers to the waiver issues. We hold that the judgment on the counterclaim is supported by the independent defense of limitation, as submitted in issues number seven, eight, nine, and thirteen, which inquired about defendants’ knowledge at the crucial time with respect to limitation, namely, August 22, 1973. Consequently, we still need not consider whether the court erred in disregarding any of the answers to the waiver issues.

Since the judgment against defendants on their counterclaim is based on the jury’s answers to the limitation issues, rather than on the court’s action in disregarding some of the answers to the waiver issues, we regard that judgment as one on the verdict rather than a judgment notwithstanding the jury’s answers. Consequently, if issues number seven, eight, nine and thirteen did not submit all components of the limitation defense, we must deem any unsubmitted component found in support of the judgment in the absence of any objection to the issues brought forward here as ground for a new trial, as we held in our opinion.

Defendants now call our attention to the objections they made to the limitation issues in the trial court and have moved for leave to supplement the transcript by bringing forward those objections. We do not regard the objections as material at this stage of the litigation. None of the points on this appeal complain of the trial court’s rulings on the objections, and it is too late to consider whether a new trial should be granted on this ground. Our former opinion was not based on defendants’ failure to object to the limitation issues. We held, rather, that in the absence of any contention on appeal that a new trial should be granted because of any defects pointed out by such objections, we could not reverse the trial court’s judgment and render judgment in defendants’ favor on the theory that these issues did not submit all the elements of the limitation defense.

Defendants’ motion for rehearing and motion to file supplemental transcript are overruled.

      . The basis for judgment is not clear, since the bank did not plead waiver or ratification, as required by rule 94, Tex.R.Civ.P., and does not contend in its brief here that the judgment can be supported on either of those grounds, although it relies on cases dealing with waiver and ratification. This lack of pleading is immaterial in view of our disposition of the case.

      . The trial, court apparently took the view that Bodovsky’s knowledge was chargeable to Ever-son as a partner, since the judgment recites that defendants associated themselves in the restaurant business as a partnership which was not shown to have been dissolved, although Everson left the active management of the restaurant in January 1972. Defendants do not challenge this finding by a separate point, although they suggest that the evidence shows that the partnership was dissolved before August 22, 1973. In the absence of any objection to the court’s failure to submit an issue inquiring when the partnership was dissolved, the trial court was authorized to make an express finding on the omitted issue. Rule 279, Tex.R. Civ.P.; Rodriguez v. Higginbotham-Bailey-Logan Co., 172 S.W.2d 991 (Tex.Civ.App.—San Antonio 1943, writ refd). We need not determine whether defendants are required to raise the lack of evidence by a separate point, since our review of the evidence discloses sufficient evidence to support this finding.

      . Actually, the record shows that issue number three was not submitted in connection with the bank’s plea of limitation, but rather as an element of defendants’ claim of fraudulent concealment. Defendants alleged that because of such a relationship at the time of their purchase of the equipment, the bank had a duty to disclose information material to their purchase. Defendants seek to apply this finding to the limitation question by asserting a presumption that the relationship, once established, continued until the bank filed this suit.


author: CORNELIUS, Chief Justice.

text:
    INTERNATIONAL PAPER COMPANY et al., Appellants, v. R. C. AYDELOTT et al., Appellees.
    No. 8652.
    Court of Civil Appeals of Texas, Texarkana.
    May 29, 1979.
    Rehearing Denied June 26, 1979.
    Pat C. Beadle, Beadle & Beadle, Clarks-ville, for appellants.
    Harry B. Friedman, Harkness, Friedman & Kusin, Texarkana, for appellees.
   CORNELIUS, Chief Justice.

This suit was brought by R. C. Aydelott and several others to obtain an injunction prohibiting International Paper Company and its lessee, Sulphur River Hunting Club, from denying them the use of certain roads which pass over International’s lands in Red River County. Trial was to a jury which found that the roads had been dedicated as public roads and also that the plaintiffs had acquired a prescriptive easement. In response to the jury verdict the court issued a permanent injunction prohibiting any interference with the plaintiffs’ use of the roads.

International has appealed from the judgment, raising the contention, among others, that there was no evidence or insufficient evidence to justify the submission to the jury of either of the special issues on public dedication and prescriptive easement, and that it was entitled to judgment as a matter of law. We agree.

The original petition on which the plaintiffs went to trial alleged only that they had acquired a prescriptive easement over a certain road described generally as one which “ . . . commences at or near the Eastern border of the Red River County Line where it joins Bowie County in the P. Dalby Headright Survey and continues along the M.E.P. & P. R.R. Co. Headright Survey in Red River County, said land going from Easterly to Westerly almost parallel with the Northern border of said M.E.P. & P. R.R. Co. Headright Survey, . . ”. Originally, it was plaintiffs’ theory and testimony that they had used the road so described to reach various parcels of property owned by them in certain surveys located to the west of International’s land. However, faced at the trial with claims that there was no road on International’s land which met the description they pleaded, but only those roads shown on International’s Exhibit No. 2, the plaintiffs filed a trial amendment. The amendment described the roads shown on Exhibit 2 both by course and bounds and by reference to the exhibit, and pleaded that the roads so described and shown on the exhibit were the ones used by the plaintiffs, and that they had been dedicated to the public by the landowners prior to International’s acquisition of title. After the filing of the amended pleading, plaintiffs re-offered their witnesses who then testified that the roads they used and the only ones they claimed were those shown on Exhibit 2. The roads were further identified when the court’s charge limited the special issues to those roads described in the trial amendment and shown on Exhibit 2.

The special issue inquiring if plaintiffs acquired an easement by adverse possession should not have been submitted. The undisputed evidence, both from plaintiffs’ witnesses and from those produced by International, revealed that the use of the roads by the plaintiffs was in common with that of the owner, International Paper Company, and its lessee. In those circumstances, the use was not exclusive and adverse, and it will not support a finding of an easement by prescription. Brooks v. Jones, 578 S.W.2d 669 (Tex.1979), and authorities there cited.

The special issue inquiring if the road had been dedicated to the public should not have been submitted to the jury because plaintiffs’ pleadings and their own testimony showed that the roads do not lead to or touch any land in which any of the plaintiffs has a property interest. They extend only from International’s north boundary line to the Sulphur River which is its south boundary. A public dedication of a roadway or easement may be enforced by the public authorities of the state, county or municipality involved, but it is enforceable by private landowners only if they have a property interest which will suffer if the publicly dedicated way is obstructed. Otherwise, they have no justiciable interest. Brooks v. Jones, supra. The plaintiffs testified that they used the roads described in Exhibit 2 to get to the Sulphur River to hunt and fish, but that is not a property interest or right, different and apart from the rights of the public in general, as will give them the requisite justiciable interest or standing to enforce the claimed public dedication.

As the undisputed evidence showed that plaintiffs’ use of the roads was not exclusive as is required for a prescriptive easement, and that they have no property interest which would be adversely affected by a closing of the alleged public roads described in the pleadings and the court’s charge, there was no evidence to justify the submission of the jury issues, and International was entitled to judgment as a matter of law.

There was some testimony indicating that the roads shown on Exhibit 2 may have branches extending from them which ultimately lead to lands in which some of the plaintiffs own interests, and it may be that plaintiffs can establish a sufficient justicia-ble interest to enforce a claimed public dedication of those roads, but they are not at issue in this suit. Plaintiffs’ pleadings and the court’s charge explicitly limited the instant litigation to the roads shown on Exhibit 2, which roads are located exclusively on International’s land and lead only to the Sulphur River.

For the reasons stated, the judgment is reversed and judgment is here rendered that the plaintiffs take nothing.

      . See plat attached.


author: CADENA, Chief Justice.

text:
    Jon Drew ROLAND et al., Appellants, v. EQUITABLE TRUST COMPANY, Appellee.
    No. 16060.
    Court of Civil Appeals of Texas, San Antonio.
    May 31, 1979.
    Rehearing Denied July 11, 1979.

      Gerald T. Drought, S. Mark Murray, Martin, Drought & Danysh, San Antonio, for appellants.
    Carl Raymond Crites, San Antonio, for appellee.
   OPINION

CADENA, Chief Justice.

Defendants, Jon Drew Roland and James Fenimore, independent executor of the estate of Miladie Fraser, appeal from a summary judgment granting plaintiff, Equitable Trust Company, recovery for the amount remaining unpaid on a promissory note after a trustee’s sale of the land given as security for payment of the note.

On August 21,1974, Jon Roland and Mila-die Fraser executed a note in the amount of $10,000.00 payable to plaintiff. On the same day Roland executed a deed of trust, describing the land owned by him in Guadalupe County, to secure payment of the note. Miladie Fraser owned no interest in such land. On November 2, 1976, following default by the makers of the note, the land described in the deed of trust was sold to plaintiff at a trustee’s sale for $3,500.00.

On November 1, 1977, plaintiff filed this suit to recover the amount, approximately $7,000.00, remaining unpaid on the note after the $3,500.00 realized at the trustee’s sale had been applied to payment of the note. Roland and the executor filed general denials. On November 23, 1977, Roland filed a counterclaim alleging lack of proper notice of acceleration of the note, lack of proper notice of the sale, and the inability of his co-maker Miladie Fraser to protect her interests because of a serious illness which culminated in her death prior to the date of sale. Roland alleged that the land was worth more than $15,000.00 and that the price realized at the sale was grossly inadequate. He sought judgment against plaintiff for $5,000.00, which he alleged to. be the value of his “equity” in the land.

Plaintiff filed its motion for summary judgment on December 5, 1977, and its answer to Roland’s counterclaim on January 12, 1978.

A hearing on the motion for summary judgment was held on January 20, 1978, and on February 6, 1978, the court entered judgment in favor of plaintiff on its claim and against Roland on his counterclaim.

It is undisputed that the note was executed by Roland and Fraser; that plaintiff was the holder of the note; that there was a default; and that the land sold for $3,500.00.

The motion for summary judgment was supported by the affidavit of the trustee. Insofar as here relevant, the affidavit states that proper notices were given and that the land was sold. Since defendant produced no summary judgment evidence indicating that proper notice was not given, the fact of proper notice was conclusively established. Article 3810, Tex.Rev.Civ.Stat. Ann. (Vernon Supp.1978-1979).

The claim that the sale was unfair and that the price received for the land was grossly inadequate were clearly defensive matters concerning which defendants had the burden of proof. In the absence of summary judgment evidence raising at least an issue of fact as to the component elements of the affirmative defense asserted, plaintiff was entitled to summary judgment on its claim. Hudnall v. Tyler Bank and Trust Co., 458 S.W.2d 183, 185 (Tex.1970).

The sale affected no interest of Mi-ladie Fraser in the land sold, since such land was wholly owned by Roland. For the purpose of this opinion we will assume, without deciding, that the rules relating to disability on the part of mortgagor are applicable to Mrs. Fraser. Given the fact of disability, the rule is that such disability does not affect the fairness of a foreclosure sale unless the sale was for a grossly inadequate price. See James v. Channey, 154 S.W. 679, 681—82 (Tex.Civ.App.—Texarkana 1913, writ ref'd).

In his affidavit filed in opposition to the motion for summary judgment Roland, after stating he was familiar with values of comparable land, alleged that the value of the land described in “Exhibit A” attached to his affidavit was in excess of $14,000.00. The exhibit is not attached to the affidavit and does not appear among the instruments filed in the case. We find that his affidavit is insufficient to raise a question of fact concerning adequacy of price. See, Rule 166-A(e), Tex.R.Civ.P. (Vernon Supp.); Baebel v. River Oaks Bank & Trust Co., 498 S.W.2d 461 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ). Plaintiff’s failure to object to this defect is irrelevant. See Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 234 (Tex.1962).

Defendants filed written objections to the lack of specificity in plaintiff’s motion for summary judgment. However, the record establishes that the pleadings containing such exceptions were withdrawn and the objections were never urged by defendants or ruled on by the court. The defects, if any, were waived. Westchester Fire Insurance Co. v. Alvarez, 576 S.W.2d 771 (Tex.1978).

Roland contends that the court improperly included in the summary judgment provisions that Roland take nothing by his counterclaim. The motion for summary judgment prayed for judgment in accordance with plaintiff’s pleadings and affidavit. Roland argues that since plaintiff’s answer to the counterclaim had not been filed as of the date of its motion for summary judgment, that the court improperly included the counterclaim in the summary judgment.

Under Rule 166-A, summary judgments are rendered on “the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, on file at the time of the hearing, or filed thereafter and before judgment.” The judgment was entered after the answer had been filed, and the judgment recites that the parties stipulated that the court’s judgment “should be rendered . . . based upon the following: Plaintiff’s Original Answer to Counterclaim . . ..” The court properly disposed of the counterclaim.

Defendants correctly point out that there was an issue of fact concerning the amount of attorney’s fees to be recovered by plaintiff. However, since the judgment denied plaintiff’s prayer for attorney’s fees, defendants have no cause for complaint.

The judgment of the trial court is affirmed.


author: GUITTARD, Chief Justice. STOREY, Justice,

text:
    GULF INSURANCE COMPANY and Fidelity and Casualty Company of New York, Appellants, v. DUNLOP TIRE AND RUBBER CORPORATION, Donald W. Yarbrough, Sr., d/b/a Yarbrough Tire Sales and Mari Louise Yarbrough, Appellees.
    No. 19741.
    Court of Civil Appeals of Texas, Dallas.
    June 18, 1979.
    Rehearing Denied July 24, 1979.

      Gordon H. Rowe, Jr., Gardere, Porter & DeHay, Dallas, for appellants.
    Robert C. McGuire, Ungerman, Hill, Un-german, Angrist, Dolginoff, Teofan & Vick-ers, Dallas, for appellees.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   GUITTARD, Chief Justice.

In this appeal from a judgment allowing recovery on two fire insurance policies, the insurance companies contend that they should have a new trial because their counsel, through excusable inadvertence, was not prepared for trial, and therefore, was unable to present a meritorious defense.

When the case was called for trial on the day set, appellants’ counsel failed to appear, but came to the court on a telephone call from opposing counsel. Appellants moved for a continuance, demanded a jury, and sought leave to file two trial amendments. These requests were denied. Counsel participated in the trial, and, after the adverse judgment was rendered, filed a motion for new trial seeking to excuse his unpreparedness and setting up a meritorious defense that he was unable to present at the trial. In this motion, for the first time, he offered to try the case at any time fixed by the court and to reimburse the opposing parties for their expenses resulting from the delay. We hold that this offer came too late. Accordingly, we overrule appellants’ points complaining that the judge erred in denying their motion for continuance and their motion for new trial. We also overrule their contentions that the judge abused his discretion in denying their demand for a jury trial and their requested leave to file the trial amendments.

1. Denial of Continuance and Motion for New Trial

Appellants admit that they had notice of the trial setting, but they assert that their counsel’s failure to prepare for trial was the result of an error of his secretary in striking the notation of the trial setting from his office calendar. They alleged in their motion for continuance that they had witnesses that they were unable to produce on short notice who would have raised the defense of arson, and, in support of their motion for new trial, they presented the affidavits of such witnesses to set up a meritorious defense. Thus appellants assert that their failure to prepare for trial was not intentional or the result of conscious indifference, and they contend that we should apply the rules announced in Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966), Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939), and other cases governing the trial court’s discretion in granting a new trial in cases tried in the defendants’ absence, on the theory that this case is tantamount to one in which they failed to appear and defend.

We do not regard this case as tantamount to one tried in appellants’ absence. Of course, counsel’s participation in the trial cannot be taken as prejudicial to appellants’ rights. After the telephone call from opposing counsel, failure to appear could only have worsened appellants’ position. The crucial ruling of the trial judge was not in overruling the motion for new trial, but in denying appellants’ motion for continuance.

We cannot agree with appellants’ contention that even if the judge had discretion to overrule the motion for continuance, he abused his discretion in overruling the motion for new trial. To permit an attorney who has overlooked a trial setting to set up as grounds for new trial a “meritorious defense” consisting of evidence not presented at the trial would ignore the requirement of diligence and the other requirements of a motion for new trial for newly discovered evidence. See New Amsterdam Casualty Co. v. Jordan, 359 S.W.2d 864, 866 (Tex.1962). We hold that if denial of the continuance was within the court’s discretion, then overruling the motion for new trial was not reversible error, so far as the court’s failure to postpone the trial is concerned.

This result follows even though it appears that the sworn allegations in the motion for new trial might have required a new trial if the court had proceeded to trial without any attempt to notify counsel further. If counsel had not discovered the judgment until after it was rendered, then appellants’ motion for new trial, showing that their failure to appear was not intentional or the result of conscious indifference, and setting up a meritorious defense, may well have been sufficient, coupled as it was with their offer to go to trial on any date fixed and pay the expenses of the adverse parties occasioned by the delay. As the case comes to us, however, counsel does not seek to excuse his failure to appear, but rather his failure to prepare for trial and have his witnesses available. A motion for continuance on such grounds must show diligence to procure the testimony of the absent witnesses. Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856 (1952). Such diligence, of course, appellants were not in a position to show.

Perhaps such lack of diligence would be excused by a showing of the same kind of circumstances that would excuse a failure to appear under Ivy and Craddock. Perhaps also, the circumstances presented in the motion for continuance would have excused their failure to set up in their motion all the elements of a meritorious defense. Yet a continuance is within the trial court’s discretion. Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.1963). If the Ivy-Craddock standard is to be applied to a motion for continuance, that standard requires an offer to do equity, namely, to try the case at the earliest practicable date and to pay the expenses of the opposing parties resulting from the delay. Cf. United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 958 (Tex.1976). This requirement was not met. Appellants’ motion asks that the court continue the case for a reasonable time so that they would have an opportunity to subpoena witnesses from other counties. Before presenting the motion, however, counsel had advised the judge and opposing counsel that appellants could not be ready for trial for several months. The record also shows that the judge inquired whether appellants were willing to pay the expenses of parties and witnesses who had come that morning from Palestine, Texas, but counsel for appellants made no response.

Appellants argue that any such offer to do equity would have been futile because appellees had indicated their unwillingness to agree to a postponement on any terms, and the judge had stated that his docket was full for several months ahead. These circumstances do not excuse appellants’ failure to make the offer. Appellants were seeking to delay the trial because of their own lack of diligence. Consequently, they had the burden to offer equity if the Ivy-Craddock rule is to be applied in this situation. Any unwillingness of appellees to agree to a postponement was immaterial. The judge expressly invited appellants to make such an offer, and they made no response. In these circumstances the judge did not abuse his discretion in overruling the motion for continuance.

Perhaps a better course for the trial judge would have been to determine the next date on which he could set the case for trial without disruption of his docket and then to ascertain from opposing counsel the amount of appellees’ reasonable expenses, including counsel fees, occasioned by the delay. The judge might then have required appellants to pay the amount so determined as a condition of the postponement. The precise manner of dealing with the problem, however, was within his discretion.

Appellants insist that they made a sufficient offer to do equity in their motion for new trial. That offer, in our opinion, came too late. The question of whether a continuance should be granted is to be judged in the light of the facts before the trial judge at the time the motion is presented. Sabelli v. Security Insurance Co. of New Haven, 372 S.W.2d 348, 350 (Tex.Civ.App.—Austin 1963, writ ref’d n. r. e.). For reasons already explained, we hold that even though a party’s failure to prepare for trial was not intentional or the result of conscious indifference, if he knows that the case has been called for trial, he has the duty to appear and present his grounds for postponement, and, if the postponement is denied, the judge’s exercise of discretion in this respect must be reviewed on the facts presented to the judge at that time, not on such facts as may be presented later in a motion for new trial.

2. Demand for a Jury Trial

The record shows that the case was set on the court’s non-jury docket. When the judge called the case for trial at 9:00 a. m. on the day set, appellees announced ready, but no one appeared for appellants. Counsel for appellants appeared at about 10:30, but made no immediate demand for a jury. At a subsequent recess counsel paid the jury fee and then, at about 11:05, made his demand and advised the judge that a panel was available from the central jury room. Counsel for appellees objected that they were not ready for a jury trial and had prepared no requested special issues. Ap-pellees also asserted that the jury demand was made for delay. The judge denied the jury demand with the observation that the case had been set on the non-jury docket for several months, that the demand was not timely under the rules, and that he considered it a harassment and imposition on the court in the ordinary disposition of its business. The court recited later in its order overruling the motion for new trial that a jury trial would have interfered with the orderly disposition of the court’s business and would have disrupted the docket. The judge recited his finding that the underlying motivation for paying the jury fee was to obtain a continuance.

Appellants contend that the judge abused his discretion in trying the case without a jury because they had demanded and paid for a jury trial at a time when, despite any lateness of demand, a jury could have been impaneled without undue inconvenience to the court or appellees. In support of this contention, they cite Aronoff v. Texas Turnpike Authority, 299 S.W.2d 342 (Tex.Civ.App.—Dallas 1957, no writ). That case held that the trial judge’s recital that a jury trial would have taken more time and would have disrupted the docket was not conclusive where the record shows that the case was set on the jury docket and that all parties were ready for a jury trial, but discovered on the morning of the trial that the jury fee had not been paid. In view of the different circumstances shown here, we hold that no abuse of discretion is shown.

3. Denial of Trial Amendments

Appellants also complain of the court’s denial of leave to file two trial amendments, one at the beginning of the trial and another after the testimony was closed. The first amendment raised the arson defense and also alleged certain provisions of the policy limiting coverage for the loss. With respect to the allegation of arson, it is material to consider the posture of the parties at the trial. Appellee Donald W. Yarb-rough, an automobile tire dealer, was indebted to appellee Dunlop Tire & Rubber Company for tires he had bought from Dunlop. Yarbrough had assigned the two fire insurance policies in question to Dunlop to secure the debt. After Yarbrough sustained a fire loss, Dunlop brought this suit against Yarbrough on the debt and against the appellant insurance companies on the policies. Yarbrough filed a cross-claim against appellants on the policies. When appellants presented their trial amendment at the beginning of the trial, both appellees claimed surprise and insisted that they had undertaken no discovery and had made no other preparations to try the arson issue. Appellants’ counsel replied that he had advised counsel for Dunlop at a pretrial hearing that appellants intended to plead arson. He also asserted that appellee Yarbrough, who was not represented at the pretrial hearing, should have anticipated an arson defense to his cross-claim because he knew that an arson investigation had been made by state authorities. These assertions have no corroboration in the record. Neither had appellants undertaken any discovery that would have put appellees on notice that appellants would raise the defense of arson.

Even if appellees had been advised that appellants might allege arson, when appellants failed to amend their answer more than seven days before trial, as required by Rule 63 of the Texas Rules of Civil Procedure, appellees could reasonably assume that appellants had been unable to develop any proof of such a defense. Under these circumstances the judge’s exercise of discretion at the beginning of the trial to deny leave to file an amendment alleging arson should not be disturbed. See Sigler v. Frost Brothers, Inc., 555 S.W.2d 813 (Tex.Civ.App.—El Paso 1977, no writ); Davis v. National Acceptance Co., 233 S.W.2d 321 (Tex.Civ.App.—Dallas 1950, writ ref’d n. r. e.).

Appellants complain further that they should have been allowed to plead a policy limitation on coverage, which they alleged in their trial amendment tendered before trial. They also contend that the trial court should have permitted them to file another trial amendment after close of the evidence alleging the defense of “other insurance” under the terms of the policies. Appellants have made no effort, however, to show how either of the pleas, if allowed, could have affected the judgment. Consequently, no prejudice is shown in these respects.

Affirmed.

STOREY, J., dissents.

STOREY, Justice,

dissenting.

I respectfully dissent. I cannot agree with the conclusion reached by the majority that the crucial ruling of the trial court was the overruling of the motion for continuance rather than the overruling of the motion for new trial. It was not until the motion for new trial was presented that the trial court was able to determine the cumulative effect of its rulings. I believe this was the crucial ruling made by the court, and under the facts presented here, failure to order a new trial was an abuse of its discretion.

The purpose of a hearing on motion for new trial is to afford the trial court a final opportunity to determine not only if any single ruling made by it at any stage of the trial proceedings resulted in denial to any party of his day in court, but also to examine the entire record before it with a view to determining whether the cumulative effect of its rulings resulted in such denial. As was stated by the supreme court in Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270 (1936), the motion for new trial gives the trial judge an opportunity to have his attention called to the alleged errors committed by him during the trial. It is well known that the trial judge must act quickly upon questions presented to him. Many rulings are made upon the theory that other phases of the case will be presented and developed, which oftentimes do not materialize. Stillman v. Hirsch, 99 S.W.2d at 275. See also Sandoval v. Rattikin, 395 S.W.2d 889 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.). An application for a new trial to set aside a judgment on equitable grounds is addressed to the discretion of the court and should be granted when substantial rights of the parties have been so violated as to make it reasonably clear that a fair trial was not had. Its function is to point out such equities so as to make it reasonably certain that the applicant has been deprived of a substantial right. McMillan v. McMillan, 72 S.W.2d 611 (Tex.Civ.App.—Dallas 1934, no writ).

There can be no question that denying appellants an opportunity to present their defenses deprived them of a substantial right and that their evidence of meritorious defenses presented at the hearing on motion for new trial was substantial. Much of this evidence was not presented to or considered by the trial court in the motion for continuance; and the witnesses, all residents of Anderson County, were not available at the time of trial. For example, James E. Singletary, a Palestine fireman who was one of the first to arrive at the scene of the fire which destroyed the Yar-brough building and contents, made affidavit that after the fire, he could find no evidence of new tires among the debris; and that Yarbrough’s daughter told him they had truck tires at their home. Joel Ray Morris, an employer of the Palestine Fire Department, had frequently been in the Yarbrough building. He stated by affidavit that he was there on May 31, the day before the fire, and noticed there were no tires where normally a large number were stored; and where new tires were normally displayed, there were old, used tires which were normally stored outside the building. He stated also that he noticed there were no truck tires in the building and that normally Yarbrough kept a large stock of truck tires. According to his affidavit, Jimmy D. Easter, an employee of Yarbrough at the time of the fire, was aware one week prior to the fire that several loads of new tires were removed from the shop and placed in the basement of Yarbrough’s home. He recalls at the time of the fire, the new tire stock was depleted and most of those remaining were recaps. The inventory of truck tires, according to his affidavit, was the lowest he had seen since he had been an employee. Teddie Joe Holt, another Yarbrough employee, by affidavit stated that for approximately two or three weeks prior to the fire, he and others had been moving new truck tires out of the shop to Yarbrough’s home and at the time of the fire, there were no new truck tires in the shop. He stated that the only tires in the building at the time of the fire were old used tires, recaps and a few automobile tires. These unequivocal statements of disinterested witnesses make it reasonably clear that a fair trial was not had.

Nor is it disputed by appellees that appellants’ failure to timely appear for trial was due to mistake or inadvertence. If there be lack of diligence in preparation in this case, it is due to the same mistake. The record reflects that the trial date was initially entered on counsel’s calendar in response to the court’s notice for March 23, 1977, but at some later date was lined out so that no trial setting was reflected. Counsel and his secretary by affidavit stated that either she inadvertently lined out the trial setting at the same time she lined out the case setting below it which was settled; or, she mistakenly lined it out upon receipt of an order of non-suit in a case involving the same insurance coverage then pending in Anderson County styled Don Yarbrough v. Gulf Insurance Company and the Fidelity and Casualty Company of New York. This order of non-suit shows to have been entered on December 28, 1976. These facts are even stronger than those in Kirk v. Farmers Aerial Spraying Service, Inc., 496 S.W.2d 739 (Tex.Civ.App.—Amarillo 1973, no writ), where the secretary simply failed to remind defendant’s counsel of the trial setting. While the court there referred to counsel’s pre-trial activity as being indicative of his desire to defend the case, it also emphasized that the absence of an intentional failure is the controlling factor, and some excuse, not necessarily a good excuse, is sufficient to demonstrate this absence.

These circumstances do not demonstrate a complete lack of diligence on the part of appellants in preparation for trial. Appellants answered in the case on November 18, Yarbrough answered on November 30, and plaintiffs’ amended petition was filed on December 21, about ninety days before the trial date. It would not appear that the failure to take depositions of out-of-county witnesses during the ninety-day period from December 19 to March 23 was such an inordinate period of time as to charge counsel with a complete lack of diligence. Particularly is this true when sometime subsequent to December 19, the trial setting was inadvertently removed from his trial calendar, thereby precluding any realization by him that the trial date was imminent.

It is, of course, well settled that the hearing on the motion for new trial is not a means by which the case may be tried over or tried differently, and a different view might well prevail in this case if a new trial required the retrial of issues disposed of previously. Such is not the case before us. The plaintiff Dunlop has recovered judgment for its debt against Yarbrough. This judgment is final and Dunlop need not retry those issues nor even appear at a new trial unless it elects to do so. Dunlop held no interest in the policy proceeds either by assignment or loss-payable provision. It extended its credit to Yarbrough and should not be entitled to look to appellants for payment except to the extent that Yar-brough may recover from them. Yarbrough has proved his case against appellants except as it may be defeated by the arson defense or reduced by a finding that a part of the inventory had been removed from the premises before the fire. In accordance with the offer made by appellants in their motion for new trial, any judgment recovered by Yarbrough may bear interest from March 23, 1977, and he may be reimbursed for his expenses including attorneys fees incurred in the March 23 trial.

Appellants’ failure to offer reimbursement at the time of the motion for continuance should not be fatal because they offered complete reimbursement in their motion for new trial. In Dallas Heating Company, Inc. v. W. E. Pardee, 561 S.W.2d 16 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.), appellant offered reimbursement for the first time in its brief in this court and this court considered that offer to be timely holding that a failure to offer reimbursement in a motion for new trial after default judgment did not necessarily preclude vacation of the judgment.

Finally, I would consider counsel’s appearance and participation in trial of no controlling consequence. He had no alternative but to remain in attendance during trial. An examination of the entire record, however, demonstrates that his participation was no more meaningful than had he not appeared, because without witnesses or defensive pleadings which the trial judge refused to permit, he was powerless to influence the outcome of the trial. Under all of these circumstances, I perceive no reason for the refusal to apply to this case the equitable principles set forth in Ivy, 407 S.W.2d at 214 and Craddock, 133 S.W.2d at 126.

It is clear that failure to afford appellants the opportunity to assert their defenses has resulted in a denial of a substantial right. No hardship would be occasioned to any party upon a retrial of this case if limited to the issues not presented at the original trial. I would therefore leave the judgment in favor of Dunlop against Yar-brough undisturbed, and reverse and remand the case for trial upon the affirmative defense issues presented in appellants’ motion for new trial. Additionally, in accord with Dallas Heating Company, Inc. v. Pardee, supra, the determination of the amount of expenses to be awarded to appellees in obtaining their judgment should be left to the discretion of the trial court.


author: STOREY, Justice.

text:
    Michael WARNER, Appellant, v. IRVING LUMBER COMPANY, Appellee.
    No. 19833.
    Court of Civil Appeals of Texas, Dallas.
    July 5, 1979.
    Rehearing Denied Aug. 6, 1979.
    Bertrán T. Bader, III, Bader & Cox, Dallas, for appellant.
    Denise A. Bretting, Coke & Coke, Dallas, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   STOREY, Justice.

, This appeal by Michael Warner, who was plaintiff and cross-defendant in the trial court, presents two questions for review: First, whether plaintiff waived service of citation on defendant’s counterclaim, or by invoking the trial court’s jurisdiction, entered an appearance; and second, whether defendant’s proof of damages is sufficient to support the judgment on the counterclaim. We conclude that there is sufficient evidence to support the trial court’s finding that plaintiff entered an appearance, and therefore answer the first question in the affirmative. However, we agree with plaintiff’s contention that proof of damages is insufficient to support the judgment, and on this ground reverse and remand.

Tex.R.Civ.P. 124 provides: “In no case shall judgment be rendered against any defendant, unless upon service, or acceptance or waiver of process or upon appearance by defendant . . . The rule is well settled that a defendant who has entered his appearance in the main case is before the court for all purposes and a judgment may be rendered against him on a co-defendant’s cross-claim without the necessity of citation. But as to a plaintiff, the filing of his suit does not so invoke the jurisdiction of the court to litigate the subject matter of a counterclaim so as to dispense with the necessity of service, acceptance, waiver of process, or of a further appearance after the filing of a counterclaim. Early v. Cornelius, 120 Tex. 335, 39 S.W.2d 6, 8 (1931).

It is admitted that no citation issued on defendant’s counterclaim and that no express waiver of service was made by plaintiff. Defendant contends, however that plaintiff entered an appearance after the filing of the counterclaim in three separate instances. First, in acquiescing in the trial court’s pre-trial order, although admittedly plaintiff did not appear at pre-trial; second, in verbally agreeing to a resetting or continuance after the filing of the counterclaim; and third, by the filing of a motion for nonsuit. We agree with defendant’s second ground and, consequently, do not consider the others.

Plaintiff acknowledges that the filing of a motion for continuance or resetting after the filing of a counterclaim is sufficient to invoke the jurisdiction of the court on the counterclaim. Plaintiff argues, however, that in this case, the evidence is insufficient to support the trial court’s finding of fact in this regard. The record reflects that plaintiff’s suit was filed on August 23,1976, and on September 20,1976, defendant answered by special exceptions and general denial. On January 27, 1977, defendant filed its first amended answer which contained special exceptions, a general denial and a counterclaim for damages arising out of the same sub-contract sued on by plaintiff. The case was set for jury trial on June 5, and on or about that date, was reset for trial on December 5, 1977. On this latter date, plaintiff’s motion for nonsuit was filed and granted. The case went to trial on defendant’s counterclaim on June 19, 1978. Plaintiff did not appear at trial.

The trial court made findings of fact that subsequent to the filing of defendant’s counterclaim, plaintiff requested the court to postpone the trial setting on June 5, 1977, and continue the case; that the clerk of the court had the authority of the court to continue the trial of a cause and reset such cause upon agreement of all counsel so long as the case had not been on the court’s docket for more than two years; that plaintiff’s request for continuance and resetting was granted by the court and the cause was reset for trial on December 5, 1977; that in June 1977, and at the time plaintiff requested the continuance, defendant’s counterclaim was on file in the cause. Among its conclusions of law, the trial court found that plaintiff took affirmative action in the furtherance of this cause following the filing of defendant’s first amended original answer and counterclaim by requesting a continuance and agreeing to change in the setting of the case; that in taking such action, plaintiff made an appearance for all purposes subsequent to the filing of defendant’s counterclaim. Plaintiff claims that these findings and conclusions are not supported by the evidence.

At trial, the clerk of the court testified as follows:

Q With regard to those notations looking over what is entitled “Notice of Assignment”, the three words say what?
A Jury trial.
Q “Jury trial December 5, 1977. Plaintiff to notify”
A Right
Q Can you explain how that came about?
A When someone calls on the phone, and asks for a setting, sometimes I will give it to the secretary or the attorney and I make a notation they are going to notify.
Q In this particular case, did the plaintiff make a request that the case be reset from June to December?
A I don’t recall the dates. I would have to check the file.
Q Did the plaintiff request the case be reset?
A The plaintiff requested that the case be reset. In looking through the file, I notice I did send a notice also to that effect.
Q But the plaintiff did request a resetting in this case?
A Right.

It ⅛ well settled that a court of civil appeals cannot substitute its findings of fact for those of the trial court if there is any evidence of a probative nature in the record to sustain the trial court’s findings. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972, 977 (1951); Chitsey v. Pat Winston Interior Design, Inc., 558 S.W.2d 579, 581 (Tex.Civ.App.—Austin 1977, no writ); Foundation Reserve Insurance Company v. Wesson, 447 S.W.2d 436, 437 (Tex.Civ.App.—Dallas 1969, writ ref’d). We conclude the trial court’s finding is supported by the evidence and therefore overrule plaintiff’s point.

We hold that plaintiff has invoked the jurisdiction of the court by agreeing to the resetting and thereby entered an appearance on the counterclaim. McElyea v. Parker, 125 Tex. 225, 81 S.W.2d 649, 652 (1935). Such appearance, however, does not relieve defendant here of the burden of proving the unliquidated damages alleged in the counterclaim. Plaintiff’s nonsuit left him in the position of nihil dicit with respect to the counterclaim. Evans v. McNeill, 41 S.W.2d 268, 269 (Tex.Civ.App.—Austin 1931, writ dism’d). Even in this situation, the amount of unliquidated damage is not confessed and must be established by evidence. Gilder v. McIntyre, 29 Tex. 89, 91 (1867); Spivey v. Saner-Ragley Lumber Co., 284 S.W. 210, 215 (Tex.Com.App.1926, opinion adopted); 4 McDonald, Texas Civil Practice § 17.25 at 127 (Rev. 1974).

We find the evidence insufficient to support the judgment. Defendant’s counterclaim declared upon a written sub-contract in which defendant was the general contractor and plaintiff the sub-contractor. Defendant alleged that after plaintiff left the job, there was found “certain deficiencies and problems with the work performed by plaintiff,” and that defendant was compelled to expend $11,291.66 to remedy the deficiencies and problems. The alleged deficiencies and problems consisted of about 95 items which were listed upon an exhibit attached to the pleadings. Also attached to the pleadings, was a copy of the sub-contract which defined the work to be performed by plaintiff. The work consisted of framing, sub-flooring, roof trusses and decking, windows and doors, and related general carpentry work. The contract further provided: “This contract may be terminated at any time by either party.”

No complaint is made of a wrongful termination, and both parties seem to agree that the contract was in fact terminated by the plaintiff when he left the job prior to its completion. The complaint is confined to the deficiencies and problems found to exist after plaintiff left the job. The question raised is simply whether the deficiencies were items of work which plaintiff did not complete or which he was not required to do under the sub-contract; or whether they were items which the defendant was compelled to repair or change because of poor workmanship on the part of the plaintiff. The general rule is that the correct measure of damages resulting from the breach of a building contract is the reasonable cost of remedying the defects which constitute the breach. County of Tarrant v. Butcher & Sweeney Construction Company, 443 S.W.2d 302 (Tex.Civ.App.—Eastland 1969, writ ref’d n.r.e.); Cooper Concrete Company v. Hendricks, 386 S.W.2d 221 (Tex.Civ.App.—Dallas 1965, no writ). Here defendant’s proof failed to distinguish those items, if any, which plaintiff performed in an unworkmanlike manner from those which he simply failed to complete. Plaintiff was not obligated on the latter items because the contract gave him the option to leave the job and terminate the contract at any time.

While the greater part of the exhibit listing the problems and deficiencies is unreadable, it can be ascertained from it that certain items might not have been included in the work to be performed by plaintiff. No proof was offered to explain these questionable items. The only testimony offered was that of defendant’s construction supervisor, who testified as follows:

Q Pursuant to that contract, did Michael Warner provide certain services on the job known as Ivey Apartments?
A Yes, sir.
Q Did he complete that work?
A No, sir.
Q Did he at any time leave that job?
A Yes, sir.
Q I show you now what has been marked as Plaintiff’s Exhibit 4 and ask if you can identify it.
A Yes, sir.
Q What is it?
A It is the extra work and stuff he had left and we had to go back and finish up.

The witness later testified that the list consisted of items he had to go back and correct, but it is apparent that it contains a great amount of work not commenced or not completed. No attempt has been made by defendant to prove the cost of repair or completion of any single item, but only an aggregate amount was attributed to the entire list. No testimony was offered to prove that the expenditures were reasonable or necessary, and none was offered to show that the list was prepared by anyone having any personal knowledge of any defect. We conclude the proof of unliquidat-ed damages is factually insufficient to sustain the judgment.

Defendant also included in his counterclaim a sworn account in the amount of $208.52 for materials furnished to plaintiff. This being a liquidated amount, verified by the pleading, defendant is entitled to judgment; however, there is no pleading or proof to support the excess interest of !½% per month allowed by the trial court. The judgment for the liquidated amount will therefore be affirmed and interest allowed at the legal rate from date of judgment.

In view of our disposition of the case, the attorney’s fees allowed defendant should be reversed and remanded for determination upon retrial.

Affirmed in part and reversed and remanded in part. Costs of appeal will be divided equally between appellant and ap-pellee.