author: EWELL, Judge.

text:
    Robert L. EATHERLY, d/b/a Eatherly Construction Company, Plaintiff-Appellee, v. MORC INDUSTRIES, INC., Edward R. Sczesny and Peter B. Curlin, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    April 26, 1979.
    Certiorari Denied by Supreme Court July 30, 1979.

      John J. Hollins, Hollins & Wagster, Nashville, for plaintiff-appellee.
    R. B. Parker, Jr., Donald P. Paul, Parker, Nichol & Finley, Nashville, for defendants-appellants.
   EWELL, Judge.

This is an appeal by defendants from a judgment entered in the Chancery Court of Davidson County, Tennessee, Judge Shelton Luton presiding, awarding to plaintiff damages in the amount of $746,623.82 for breach of contract.

The plaintiff, Robert L. Eatherly d/b/a Eatherly Construction Company (hereinafter referred to as Eatherly) sued the defendants, More Industries, Inc., a Kentucky corporation (hereinafter referred to as More), Edward R. Sczesny (hereinafter referred to as Sczesny) and Peter B. Curlin (hereinafter referred to as Curlin) for the balance due and owing under a written contract between Eatherly and More dated June 27, 1974, providing for the rental of certain equipment, including operators, to be used in the strip mining of coal on a tract of 140 acres located in Ohio County, Kentucky. Eatherly alleged that Curlin and Sczesny were jointly liable with More under the terms of a guaranty agreement dated August 12, 1974, and he sought to recover the total sum of $746,623.82 from all three defendants.

The defendants denied the validity of the guaranty agreement and insisted that Eath-erly had fraudulently induced More to enter into the original contract, that the same had been amended or altered following execution thereof so as to delete certain obligations of More to Eatherly, and that Eatherly had breached the contract by his failure to perform according to the terms and conditions thereof including his failure to give proper notice of termination. The defendants further insisted that prior payments from More to Eatherly in the total amount of $1,211,069.00 constituted substantial overpayment and that More was not indebted further or otherwise to Eatherly.

In a cross-complaint the defendants sued Eatherly for damages, More seeking to recover for breach of contract, and Sczesny and Curlin each seeking to recover for defamation. Eatherly denied all material allegations of the cross-complaint.

Subsequently Eatherly amended his original complaint to further charge that Sczes-ny and Curlin were personally liable to him as the sole stockholders of More which Sczesny and Curlin were allegedly operating as individual partners appropriating corporate funds in substantial amounts to their joint and/or personal use. Sczesny and Curlin denied all material allegations of the amended complaint, and Sczesny specifically denied any knowledge of the details of the corporate affairs prior to the inception of this litigation.

Eatherly filed a motion for summary judgment on the cross-complaint, and the motion was sustained by the Court as to that portion of the cross-complaint seeking damages for defamation. No appeal was taken from that ruling.

The defendants demanded a jury to try the issues of fact, which demand was granted by the Court over the objections of the plaintiff. The trial consumed six full days and four partial days over a period of two and one-half weeks. The transcript of the trial consists of nine volumes containing in excess of 1300 pages with 53 exhibits.

The material facts distilled from the voluminous record in this case are substantially as follows. In April of 1974 Sczesny and Curlin as the sole stockholders of More undertook to make arrangements to strip mine coal on 140 acres of land previously owned by More and then owned by W. D. Hayes, a former stockholder. Curlin had been personally acquainted with Eatherly for a number of years and was aware of the fact that Eatherly had a substantial amount of heavy equipment used for earth moving in connection with road contracts and water and sewer work. Curlin approached Eath-erly with a proposal that More and Eatherly enter into a joint venture to strip mine the coal. Eatherly declined the offer but, following discussions with Curlin, entered into a contract with More for the rental of heavy equipment for use in the coal mining operation.

A formal contract was prepared by Eath-erly’s attorney and subsequently executed by Eatherly and by Curlin as president of More. Sczesny was familiar with the negotiations between Curlin and Eatherly, but he did not see the contract prior to its execution. Both Curlin and Eatherly were residents of Davidson County, Tennessee, and Sczesny resided in Michigan. With respect to More, Sczesny’s role was to secure and/or provide financing and Curlin’s role was to manage the corporation’s day to day operation.

The contract between Eatherly and More recited that the 140 acre tract to be mined was owned by More. At the time of execution of the contract the property was titled in the name of Hayes, and within a period to two weeks title was transferred from Hayes to Sczesny. After Eatherly had been on the job a short period of time he became aware of the fact that title was vested in Sczesny and not in More, and he then insisted upon personal guaranty of payments to be made to him under the contract as a condition of his continuing with the work. The demands of Eatherly in this regard were satisfied by a letter of guaranty dated August 12, 1974, executed by Eatherly, Sczesny and Curlin.

The original contract basically provided that Eatherly would furnish materials and certain designated pieces of equipment with personnel adequate for the operation and maintenance thereof at a specified rental per hour plus other compensation and that More would provide the supervision and direction necessary in the performance of the work and compliance with the law. More was given authority to direct the areas to be mined and the land to be reclaimed as the work progressed. The letter of guaranty specifically provided that Curlin would “continue to be responsible and have full authority to administer this contract including any additional change orders that he sees necessary”.

As the work progressed Eatherly put on the job substantially more equipment than listed in the original contract although the additional equipment was of the same kind, and he charged the specified contract rates for the various types of equipment used. These charges were from time to time honored and paid by More.

Several complications developed relating to (1) location of a boundary line of the 140 acre tract which directly affected the ability to strip mine in the preferred location; (2) the depth, quantity and source of water standing on the property; and (3) the amount of earth which had to be removed in order to reach the coal deposit. Because of these factors the period of time from the beginning of operation until the initial sale of coal was substantially longer than anticipated, and consequently there developed a cash flow problem early in the project. More was not financially able to make prompt monthly payments to Eatherly as provided in the contract, and this in turn made it impossible for Eatherly to meet his obligations. Tension developed in the relationship between Eatherly and the defendants, Sczesny and Curlin; and there arose from time to time disputes and disagreements with reference to the quantity and quality of the work being performed by Eatherly and the amount and promptness of the payments being made by More.

In March, 1975, Curlin and Sczesny had their accountant examine the books of Ea-therly in an effort to reconcile the records of More and those of Eatherly with respect to the amount then owed to Eatherly. The accountant reconciled the differences and determined that according to the books More owed Eatherly in excess of $800,-000.00. Subsequently Eatherly forwarded to More two additional invoices before quitting the project.

The proof showed that substantial sums of money received from the sale of coal mined by Eatherly did not pass through the bank account of More but were deposited to other bank accounts and used for purposes other than payments to Eatherly. The proof further showed that the stock of Our-lin and Sczesny in More was never filled out; that there was no corporation directors’ meetinp or stockholders’ meetings; and that there were no corporate minutes in existence.

After the contract between Eatherly and More was drafted several changes and/or amendments were allegedly made, and a substantial portion of the conflicting testimony related to the exact provisions of the contract binding upon the parties.

The primary factual issues raised by the defendants in their pleadings and proof were (1) whether or not Eatherly induced More to enter into the contract in question by fraudulent misrepresentations of material facts; (2) whether or not Eatherly forced defendants Sczesny and Curlin to execute the letter of guaranty against their will under extreme duress brought about by unwarranted threats to cease work on the project thereby causing economic ruin; (3) whether or not the original written contract was subsequently amended or modified by verbal agreement of the parties so as to provide for the placing by Eatherly of equipment on the job in addition to that equipment specifically called for in the original contract; (4) whether or not the original written contract was amended or modified by verbal agreement of the parties to provide that in any event the maximum compensation payable to Eatherly would be $9.50 or $12.00 per ton of coal mined; (5) whether or not the original written contract was amended or modified by verbal agreement of the parties so as to delete from paragraph four thereof the provisions for the payment of an additional 15% to Eath-erly; and (6) whether or not the original written contract was amended or modified by verbal agreement of the parties so as to delete from paragraph five the provision for payment to Eatherly of $1.00 per ton of all coal mined.

The controverted material issues of fact were concisely stated by the Trial Court in eight issues submitted to the jury. On each issue there was conflicting testimony, and the jury resolved all issues in favor of the plaintiff and against all defendants as follows:

1.Did plaintiff Eatherly intentionally or fraudulently misrepresent any material fact to defendants Sczesny or Curlin or either of them whereby they were persuaded against their will to enter into the agreements upon which plaintiff Eatherly seeks to recover judgment?
NO
2.Did plaintiff Eatherly intentionally threaten to do or to cease doing anything in connection with the agreements upon which he seeks to recover judgment whereby defendant Sczesny was forced against his will to sign the letter of guaranty which is an exhibit in this case?
NO
3.Did plaintiff Eatherly intentionally threaten to do or cease doing anything in connection with the agreements upon which he seeks to recover judgment whereby defendant Curlin was forced against his will to sign the letter of guaranty which is an exhibit in this case?
NO
4.Did plaintiff Eatherly sufficiently perform his obligations under the agreement sued upon to entitle him to recover a judgment against the defendant, More Industries, Inc.?
YES
5.If your answer to No. 4 is “yes”, what amount is owing from defendant More Industries, Inc. to plaintiff Eatherly under the agreements?
$746,623.82
6.If your answer to No. 4 is “no”, did plaintiff Eatherly’s failure or refusal to perform the contract result in damage to defendants?
7.If your answer to No. 6 is “yes”, what is the amount of damages which defendants should recover from plaintiff Eatherly?
8.Did defendants Sczesny and Curlin conduct the business of defendant More Industries, Inc. as though the corporation was their individually-owned business or partnership and use the funds of defendant More Industries, Inc. as their own individual funds?
YES

Based on these findings the Trial Court entered judgment for the plaintiff decreeing:

(1) That Sczesny and Curlin guaranteed payment to Eatherly of the-indebtedness owed by More in the event of default of More, which default occurred.
(2) That Sczesny and Curlin conducted the business of More as though the corporation was an individually owned business or partnership and used the funds of More as their own individual funds so that More was rendered insolvent, thereby committing a fraud upon Eatherly, a creditor of More.
(3) That Eatherly have and recover from More, Sczesny and Curlin the sum of $746,623.82.
(4) That the cross-complaint filed against Eatherly be dismissed.

There are forty-two separate assignments and sub-assignments of error which fall into five categories: (1) Evidentiary complaints; (2) errors in the Court’s charge to the jury; (3) complaints regarding the Trial Judge’s conduct of the trial; (4) insistence that there was no material evidence to support the judgment; and (5) insistence that the findings of the jury and judgment of the Court were excessive as to damages.

Assignments I(a)-(b); 11(a) — (c); 111(a)-(c); IV(a)-(e); and V(a)-(f), being nineteen in number, all relate to evidence admitted or excluded by the Court in the course of trial. We have carefully reviewed each of these assignments and find that fifteen of them are wholly without merit and do not warrant individual treatment. We find that the remaining four hereinafter discussed have some merit, but from an examination of the entire record it does not affirmatively appear that the errors complained of affected the results of the trial. T.C.A. 27-117.

Assignments 111(a) and V(d) are directed to the refusal of the Trial Court to admit into evidence a letter from the plaintiff, Eatherly, to More Industries dated May 7,1974, identified as Exhibit D for identification purposes. The Trial Court excluded this letter on the theory that it was not admissable to vary the terms of the written contract dated June 27, 1974, entered into more than six weeks after the letter was written. We agree that the letter was not admissable for this purpose, but we find that the letter was admissable in support of the affirmative defense set forth by the defendants in paragraph sixteen of their answer as follows:

16. Defendants aver that before the signing of the contract, the plaintiff held himself out to the defendants to be an efficient and knowledgeable mover of earth and minerals, capable of efficient operation and possessing efficient strip mining machinery. Defendants aver that the aforementioned representations were not true, that the defendants relied upon said statements in entering into the contract, and that said representations constitute fraud in the inducement causing tremendous damages to the defendants.

However, taking all the evidence in the record in the light most favorable to the defendants together with the contents of the May 7, 1974 letter, we find that there is no material evidence to support the defendants’ defense of fraud in the inducement. Therefore, the exclusion of the letter was harmless error.

Assignment IV(e) is directed to the ruling of the Court in sustaining an objection of plaintiff’s attorney to a question propounded by defendants’ attorney to the plaintiff on cross-examination relating to an alleged verbal modification of the contract at a point in time when plaintiff had been operating under the contract for several months. The questioh propounded to the plaintiff was as follows:

Q. I presume, then, that you specifically deny that you promised him that from that point on the cost of your services would be changed to $12.00 per ton retroactive to the beginning?

Plaintiff’s attorney objected to the question and there ensued a lively discussion involving the Court and the attorneys for the respective parties. This discussion, most of which was outside of the presence of the jury, consumes more than ten pages of the transcript; and it appears that by the time the discussion was concluded all involved had lost the exact question in the broader issues being debated. The objection was sustained, and the plaintiff did not answer that specific question at that point in the trial. From our vantage point it appears that the question was proper on cross-examination and the witness should have been allowed to answer. However, throughout the record there was conflicting testimony of discussions, representations and agreements relating to charges based upon a maximum per ton of coal mined. The plaintiff was examined upon this subject extensively and repeatedly, and it is inconceivable that the ruling of the Trial Court in this particular instance affected the results of the trial.

Assignment V(c) is directed to the Court’s excluding certain portions of the testimony of C. L. Smith, witness for the defendants. On direct examination the attorney for the defendants attempted to elicit from the witness testimony relating to the witness’ personal knowledge of the fact that Eatherly had available to him certain documents during the period of negotiations and discussions preliminary to the execution of the contract. In his testimony Eatherly had stated that he had no recollection of having seen and examined the documents in question. Also, Smith was questioned outside the presence of the jury, about statements made by Eatherly in his presence with respect to his best judgment as to his ability to mine the coal at or below a specified cost per ton. The attorney for the defendants sought to present this evidence to the jury in an effort to impeach the prior testimony of the plaintiff and in support of the insistence that the plaintiff had been guilty of fraud in the inducement of More to execute the contract. The excluded testimony of Smith was evidence of the same kind and character as set forth in the May 7, 1974, letter from Eatherly to More, and we find that for the same reasons the Court erroneously withheld this portion of the testimony of Smith from the jury. However, again, from an examination of the entire record it does not affirmatively appear that this error affected the results of the trial.

The fourteen separate assignments designated VI(a) — (h) and IX(a)-(f) constitute complaints regarding the Court’s charge. Defendants submitted to the Court nineteen special requests of which nine were granted and ten were denied. Several of these assignments relate directly to portions of the Court’s charge included at the request and insistence of defendants.

In assignment VI(a) defendants insist that the Court was in error in instructing that plaintiff was seeking recovery for reimbursement of taxes and insurance when plaintiff had neither pled nor proven those elements of damage. We find that the written contract between the parties specifically provides in paragraph four for the reimbursement to Eatherly “for all material furnished, all taxes and insurance and extra labor . . .”, and this contract was exhibited to and made a part of plaintiff’s original complaint. This same language is repeated verbatim in paragraph eight of the complaint, and plaintiff’s proof included invoices reflecting these charges. Therefore, the Court properly instructed the jury in this respect.

In assignment VI(c) defendants insist that the Court erred in failing to instruct the jury on defendants’ pled defense of unconscionability. We note that defendants’ special request number nine related generally to this issue, and the Court declined to grant that special request. After carefully reviewing all the proof in the case together with the eight Issues of Fact submitted to the jury, we find that the Court’s failure to instruct on this issue did not constitute error.

Assignment VI(f) faults the Trial Court in failing to remove from the consideration of the jury the question of the personal obligations of defendants Sczesny and Curlin under the letter of guaranty with respect to those charges of plaintiff based on an oral modification of the written contract. At the conclusion of all the proof the defendants failed to make a motion to withdraw this issue from the jury, and, in fact, they submitted to the Court their special request number six relating to this issue. Issues of Fact numbered two and three submitted to the jury related directly to the letter of guaranty, and the defendants made no objection to any of the Issues of Fact as submitted by the Court. We find that this issue was properly submitted to the jury and that, in any event, defendants have waived their right to rely on this assignment in this Court.

Assignments VI(b), (d), (e), (g) and (h) are variously directed to the Court’s failure to instruct with reference to the three versions of the same written contract, parol evidence, fraud, legal standards with reference to misuse of the corporate entity, and speculation as to the evidence. The defendants submitted no special requests on any of these subjects, and it was not error for the Court to fail to instruct the jury in regard thereto. Rule v. Empire Gas Corp., 563 S.W.2d 551 (Tenn.1978). The Court properly charged the jury on the subject of amending a written contract, and this portion of the charge was adequate to cover the situation to which assignment VI(b) was addressed. The term “parol evidence” was contained in special requests numbered four and five submitted by defendants and charged by the Court, and this term is not otherwise found in the charge. Defendants failed to include a definition of the term in either of their said requests, and they have no standing to now insist that failure of the Court to define the term was error. Likewise, the term “fraud” was contained in special requests numbered one and eleven submitted by the defendants and charged by the Court and is not otherwise found in the charge outside of Issue of Fact number one wherein the word “fraudulently” is used. Defendants failed to make objection to the Issues of Fact submitted to the jury and under the circumstances the Court’s failure to otherwise define the term “fraud” did not constitute error.

Assignment VI(g) is directed to the failure of the Court to instruct the jury with regard to the legal standard to be applied in determining whether defendants Sczesny and Curlin so treated their corporation, More, as to render the corporation’s separate existence meaningless. The Court submitted to the jury Issue of Fact number eight seeking a finding of fact related to this legal question. Again, defendants failed to object to this Issue of Fact. Based upon the jury’s determination the Court found as a matter of law that the corporation’s separate existence was meaningless. The Court’s failure to further instruct the jury on this subject was not improper.

In assignment VI(h) defendants fault the Court for failing to instruct the jury that it was not allowed to speculate as to the evidence. The Court clearly charged the jury with respect to each and every Issue of Fact specifically designating the party which had the burden of proof and giving instructions in the event the evidence was found to be evenly balanced. The Court in its charge with respect to all eight Issues of Fact left no room for misunderstanding by the jury. It was not necessary for the Court to instruct the jury in the exact words that “it was not allowed to speculate as to tho evidence”, and the failure to do so is not error.

Assignment IX is directed to the Court’s action in denying six of defendant’s special requests. Two of the requests in question consist of quotes from Federal cases and two consist of quotes from Corpus Juris Secundum. The remaining two requests involve a quote from a Wisconsin case and a portion of Section 23-201 of T.C.A. We find the Court’s charge as given to be clear, concise, and adequate to cover all matters relating to the Issues of Fact submitted to the jury. The jury was not called upon to return a general verdict but merely to respond to the eight specific questions of fact. We find no error in the charge given by the Court, and we specifically find and hold that the action of the Court in denying these six special requests did not constitute error. See Gibson’s Suits in Chancery, Sec. 592 (5th ed. 1956).

In the seven assignments designated VII(a)-(c), VIII(a)-(c), and X, defendants broadly attack with great zeal the Trial Judge and his conduct of the entire trial. All seven assignments are encompassed in the sweeping language of assignment X as follows:

The Court erred in denying the defendants a fair trial by jury in that the cumulative effect of the Court’s ruling, statements and action throughout the trial, and of its instruction and/or lack thereof to the jury, and its bias so obvious, prejudiced the jury so that a fair trial became impossible. The Court’s belated efforts to dissuade the jury’s mind of its bias in its instructions to the jury was ineffective and served no useful purpose to the defendants.

We find that this attack on the Trial Court is unwarranted. These complaints are purely argumentative and fail to point to any error in the entire trial proceeding. The record clearly reflects that the Trial Judge was most competent and patient in presiding over a lengthy and complicated trial under difficult circumstances. The cause was well tried by capable and zealous adversaries who were given every proper consideration and great latitude by an unbiased presiding judge. There is absolutely no merit to any of these seven assignments.

Defendants in assignment XI charge that there was no material evidence to support the findings of the jury and judgment of the Court. The amount of the judgment entered against the defendants was the exact amount sued for by plaintiff and found by the jury in answer to Issue of Fact number five. This same figure was testified to by the plaintiff and supported by invoices and estimates made exhibit to his testimony. There was voluminous proof in this record on all issues in controversy, and we find ample material evidence to support the findings of the jury and the judgment of the Court.

It follows that assignment XII to the effect that the findings of the jury and judgment of the Court were excessive is also without merit. The amount of the award was well within the proof. After the jury had accepted the theory of the plaintiff on all of the major controverted issues of fact, it had little discretion under the proof as to the amount of the award. The Trial Judge did no more than approve the verdict of the jury by entering a decree consistent with the jury’s findings on the questions of fact submitted to it.

Accordingly, all forty-two assignments of error are overruled. The Trial Court having committed no reversible error and there being material evidence to support the verdict of the jury, the judgment of the Trial Court is in all things affirmed. The appellants will pay the costs of their appeal.

SHRIVER, P. J., and FRANKS, J., concur.

      . The relevant portions of the letter are as follows:
      I do have a copy of the geological report showing the approximate depth down to this coal and the approximate thickness of the coal. I feel that the price of coal on today’s market and as stated in a letter from John W. Rich of Delta Coal Company, it would be profitable to strip this coal, however, since I have not stripped coal now for several years I have not studied this area and can not give an exact price of what it would cost to strip and load this. It is possible I could get closer to it before we actually write a contract.

      In discussing with C. L. Smith and Peter B. Curlin, officers of your Company, we found that coal is being stripped and loaded into the tipple rail cars and the barge loading ramp between $7.50 and $9.50 a ton. We feel like that as the work progresses on a cost plus basis, that we will be able to create a saving for the Owner and consequently we will benefit on a bonus program of one dollar per ton, as you people have discussed with us.
      It is our intention to put the necessary equipment onto this project to ultimately deliver forty thousand tons a month. As you know this will benefit the Eatherly Construction Company with the bonus plan which we will contract with you people later.


source: Caselaw Access Project

license: Public Domain

text:
    Vivian Davis BISHOP, Plaintiff-Appellee, v. Paul DAVIS and Dee C. Davis, Jr., Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section.
    May 15, 1979.
    Certiorari Denied by Supreme Court July 30, 1979.
    James M. Smith, Decaturville, for Paul Davis.
    Harlan Dodson and Harlan Dodson, III, Nashville, for Dee C. Davis, Jr.
    James A. Hopper, Savannah, Thomas P. Mitchell, Memphis, for plaintiff-appellee.
   EWELL, Judge.

The Complaint in this cause was filed by Vivian Davis Bishop, daughter of D. C. Davis, deceased, and devisee under his will, for a determination of her rights under Item VI and Item VIII of the will. The defendants, brothers of the plaintiff, are Dee C. Davis, Jr. and Paul Davis who is also the executor of the estate of D. C. Davis.

The will was executed on September 7, 1973, and the testator died on October 3, 1977. The pertinent parts of the will are as follows:

II
I do hereby devise to my son, Paul Davis, all of the balance of the tracts of land known as the Cole Lands and the J. P. Davis Homeplace, located in the 3rd Civil District, Decatur County, Tennessee, excluding from this devise the two tracts of land hereinafter devised to my children, provided however, that the said Paul Davis pay the sum of THREE THOUSAND AND NO/lOO DOLLARS-($3,000.00)-as a provision and condition for taking under this devise, as follows: $1,000.00 to Lonnie Davis, $1,000.00 to D. C. Davis, Jr., and $1,000.00 to Vivian Davis Bishop.
III
I do hereby devise to my son, Dee C. Davis, Jr., and my daughter, Vivian Davis Bishop, that land known as the Stout Place, Bussell Place and the Houston Place, however, excluding therefrom all the land of said tracts lying and being on the East side of Jim’s Branch, all tracts are adjoining and located in the 3rd Civil District, Decatur County, Tennessee. This land is to be divided into equal acreage by a competent surveyor, with a line running generally East and West, from a point on the West side of Jim’s Branch to a point in the East Margin of the Decaturville-Perryville Road, thereby giving frontage on said road for both said tracts of land thus divided,
I do hereby devise to my son, Dee C. Davis, Jr. that tract of land lying on the North side of said division line to be established.
I do hereby devise to my daughter, Vivian Davis Bishop, that tract of land lying on the South side of said division line to be established.
IV
I do hereby devise to my son, Lonnie Davis, that tract of land known as the Brock Place and/or Yarbro Place, being all of the land I die seized and possessed of located in the 7th Civil District, Decatur County, Tennessee, and consists of two tracts, containing 72 acres, more or less. I have heretofore conveyed to the said Lonnie Davis a portion of said land by deed; however, notwithstanding the waiver provision of, or contained in said deed, I do hereby devise to my son, Lonnie Davis, the entire balance of said land located in the said 7th Civil District, Decatur County, Tennessee.
V
I do hereby bequeath to my son, Lonnie Davis, the sum of ONE THOUSAND AND NO/100 DOL-LARS_($1,000.00)_ to be paid to him as soon after my death as possible by my Executor hereinafter named, out of my personal estate.
VI
I do hereby give, bequeath and devise to Paul Davis, Dee C. Davis, Jr. and Vivian Davis Bishop, in equal shares, share and share alike, the following described tract of land, upon which the family residence is presently located, same being on the West side of the Decaturville-Perryville Road, in the 3rd Civil District, Decatur County, Tennessee, and bounded as follows:
Bounded on the North by a fence;
bounded on the South by a fence,
bounded on the East by Decaturville-Perryville Road, and
bounded on the West by a fence.
Containing Approximately 1 acre, more or less.
Included in this bequest is all of the household furniture, furnishings, fixtures, etc., at the time of my demise.
I value the same at $12,000.00 and it is my desire and request that Vivian Davis Bishop have the option to purchase the undivided interest of Paul Davis and Dee C. Davis, Jr. for the purchase price of $4,000.00 to each.
VII
I do hereby give, bequeath and devise to Lonnie Davis the following described tract of land, upon which the concrete block house which he has heretofore occupied together with all furniture, furnishings, fixtures, etc., located on the East side of the Decaturville-Perryville Road, in the 3rd Civil District, Decatur County, Tennessee, and described as follows:
BEGINNING on a stake in the right-of-way of Decaturville-Perryville Road, runs thence East 200 feet to a stake; thence South 200 feet to a stake; thence West 200 feet to a stake in the East right-of-way of said road; thence with said right-of-way North 200 feet to the beginning, so as to include driveway and said concrete block house and supporting improvements.
I value this property at $4,000.00 and have considered same in view" of paragraph VI above.
VIII
It is my desire that all the land I die seized and possessed of be owned by some member of my family, and in the event any devisee herein named should desire or need to sell the land herein devised to them, it is my wish, desire and request, everything being equal, that they sell and convey to another member of my family, or to a descendant .of a member of my family.
IX
After the payment of all debts, taxes and expenses hereinabove provided, and the payment of the special bequest provided in Paragraph V, I do hereby give, bequeath and devise all the rest and residue of my property, real, personal or mixed, and wheresoever situated or located, in equal shares as follows: One-fourth to Paul Davis; one-fourth to Dee C. Davis, Jr.; one-fourth to Vivian Davis Bishop; and one-fourth to Decatur County Bank, Decaturville, Tennessee, as Trustee for the use and benefit of my son, Lonnie Davis, and I do hereby direct my said Trustee to pay my said son, Lonnie Davis, the sum of $150.00 per month, beginning on the first day of the month following the payment of said funds to said Trustee by my said Executor, and monthly thereafter on the first day of each succeeding month until said fund and earnings therefrom have been exhausted or until his death, in the event said trust funds have not been exhausted on the date of Lonnie Davis’ death, then in that event the balance of said Trust Fund shall be distributed by said Trustee to the heirs of the said Lonnie Davis. My Trustee herein-above named shall administer said Trust in accordance with all laws applicable to Trust.

After the probate of the will in the County Court of Decatur County plaintiff tendered to each of the defendants $4,000.00 in cash and demanded from them (1) a general warranty deed conveying to her their interests in the real estate described in Item VI and (2) a bill of sale conveying to her their interests in the household furniture, furnishings, fixtures, etc. located in or about the premises. The defendants declined payment and refused to execute a deed and bill of sale. Plaintiff then filed her Complaint seeking a court order requiring defendants to execute the deed and bill of sale upon payment of $4,000.00 to each. Defendant Dee C. Davis, Jr., responded with a Motion to Dismiss the Complaint because there was no equity on the face of the bill. Defendant Paul Davis filed an Answer insisting that (1) the plaintiff and defendants owned the property as tenants in common; (2) that the provision giving the plaintiff the option to purchase is a request only and not mandatory; and (3) that Item VIII of the will is a precatory provision and not mandatory. With his Answer he also filed a Counterclaim against the plaintiff and Dee C. Davis, Jr. for partition of the real estate described in Item VI.

The cause was heard by Chancellor Aaron C. Brown upon the pleadings and the oral stipulation of counsel to the following:

(1) The will filed as an exhibit to the original bill was a true and correct copy of the will of D. C. Davis, deceased.
(2) The land was not susceptible to being partitioned in kind.
(8) The plaintiff had tendered the sum of $4,000.00 to both defendants which had been refused.

No evidence was adduced upon the trial of the case. The Chancellor took the matter under advisement and subsequently filed his “Finding” as follows:

The Will executed September 7, 1973, by the testator, when read in its entirety gave the impression of great thought and understanding as to his bounty, his family and his desire to dispose of his property in an equitable and feasible manner. It would appear no one knew the property, the heirs and his idea of what each should receive better than the testator.
The question confronting the Court is contained in Paragraph VI of the Will concerning the words “desire” and “request”. It is the contention of the defendants, Paul Davis and Dee C. Davis, that such words are precatory and do not have the testamentary effect of creating obligatory conditions.
The Court feels the words of Lord Loughdorough may have some help in the solving of this issue, “When a person recommends to another who is independent of him, there is nothing imperative; but if he recommends that to be done by a person whom he has the right to order to do it, the mode is only civility.” He further added, “this language is equally forcible when applied to the case of the husband addressing his wife in his last Will”.
The testator was addressing his children in the entire arrangements contained in the Will. The entire disposition of his property was included and the terms and conditions stated in the whole of the instrument is definitely the intention of the testator.
The Court, therefore, finds the words “desire” and “request” contained in Paragraph VI of the Will relating to plaintiff, “Vivian Davis Bishop”, should be construed as imperative and upon her complying with the direction as to payments to Paul Davis and Dee C. Davis, Jr. in the sum of Four Thousand ($4,000) Dollars each, she is entitled to the specific property in fee.

Following the entry of a Decree both defendants appealed insisting that the Chancellor erred in holding that the language in Item VI was mandatory, imperative or obligatory and not merely precatory.

Since this case is before us on the technical record only, the will must be construed from its language alone without resort to extrinsic evidence. It is axiomatic that in the construction of wills the courts will ascertain, if possible, from an examination of the whole instrument, the intention of the testator, and when this is ascertained it will be carried out, unless it countervails public policy or some established rule of law. Hadley v. Hadley, 100 Tenn. 446, 45 S.W. 342 (1898); Moore v. Neely, 212 Tenn. 496, 370 S.W.2d 537 (1963).

In the case of Robertson v. Brown, 13 Tenn.App. 211 (1931) the Court of Appeals, Middle Section, quoted with approval Section 455 of Sizer’s Pritchard on Wills and Administration, relating to precatory words. That section is carried forward in Phillips’ Pritchard Law of Wills and Administration of Estates in which the applicable law is concisely summarized as follows:

It has been frequently held, especially in the earlier cases, that the expression of a wish or desire on the part of the testator, accompanying a devise or bequest, that a particular application shall be made of the property, is prima facie considered obligatory, and creates a trust unless an intention appear to the contrary. Thus, if a testator gives $1,000 to A.B., desiring, wishing, recommending, hoping, entreating, or believing that A.B. will at his death give the same or some certain part of it to C.D., it is considered that C.D. is an object of the testator’s bounty, and that A.B. is a trustee for him. But in order that words of recommendation, entreaty or wish, when used in a will, shall be held to create a trust, it is necessary, first, that the words be so used that upon the whole they ought to be construed as imperative; secondly, that the subject of the recommendation, entreaty or wish be certain; and, thirdly, that the objects or persons intended to have the benefit of it be also certain. Where there is sufficient certainty of subject and object, the real question in every case is whether the expression of the wish or recommendation by the testator was meant to control the conduct of the person to whom it is addressed or was merely intended to indicate what he supposed would be a reasonable exercise of the discretion of such person, without intending to control it.
In the more recent decisions there has been a change in the trend of authority as to the force of precatory words. The natural significance of precatory words is not a trust, and the words “request”, “desire”, and the like will be construed as a request, not a command, unless the intention of the testator is clear that a command is intended.

The modern trend with regard to precatory words brings us to again to the fundamental consideration of the testator’s intent. The Chancellor found that the testator intended that the words “desire” and “request” as used in Item VI of the will be imperative. We agree.

From a reading of the will as a whole it is apparent that the testator gave careful consideration to the manner and means of dividing his estate among his four children. He had a definite opinion as to the value of each parcel of real estate, and his mode of disposition of the real estate related directly to his valuations. (See Items II through VII). It is also clear that he preferred that his land remain in the family. (See Item VIII). It is reasonable to assume that this desire would have been particularly strong in relation to the family residence and its contents.

Based upon the language of Item VIII and the fact that both the subject and object of this item are general and broad rather than specific and certain, we conclude that the testator intended this portion of his will to be a request, not a command. With respect to Item VI we find the situation to be substantially different, and we conclude that the testator intended to give his daughter the absolute right to purchase the family residence and the contents thereof for $8,000.00 if she so desired. It is obvious that he thought this disposition in relation to other portions of the will would be fair and equitable as to all his children, and he must have been aware of the impracticality of three children continuing indefinitely in joint ownership of the family residence and one acre of land.

We recognize the difference in the approach used by the testator in Item II as compared to Item VI. Appellants argue that this difference indicates the testator intended the last paragraph of Item VI as a request only, otherwise he would have handled Item VI in the same manner as Item II. We do not agree. From this difference we conclude that the testator was certain that his son, Paul, would pay $3,000.00 in exchange for the land described in Item II while there was some question in his mind as to whether or not his daughter, Vivian, would want absolute ownership of the home place and the contents at a cost of $8,000.00.

Appellants also complain that the holding of the Trial Court permits the plaintiff to acquire real estate in 1978 at 1973 prices. The will was executed in September, 1973, and the testator died in October, 1977. We have no proof before us comparing 1973 values to 1977 values, but we consider it significant that the testator over a period of more than four years did not modify his will in any way. If, because of inflation, there was a general increase in real estate values, it follows that appellant, Paul Davis, secured a like benefit under the terms of Item II and that Lonnie Davis was similarly affected under Item VII. It is equally reasonable to assume a decrease in the value of the dollar over the same period of time, and this change worked to the detriment of Lonnie Davis under Item V and Lonnie Davis, Dee C. Davis and Vivian Davis Bishop under Item II as well as Paul Davis and Dee C. Davis, Jr. under Item VI. Therefore, changes in real estate values and economic conditions from the date of execution of the will to date of death are meaningless in our efforts to determine the testator’s intent in the use of the language contained in the last paragraph of Item VI.

If this language is not mandatory, it follows that the Counterclaim of Paul Davis for partition has merit. The parties stipulated that the land was not susceptible to being partitioned in kind. Partition could be accomplished only by sale and a division of the proceeds. We think it is reasonable to assume that the testator foresaw this possibility and sought to avoid a public sale of the family residence, possibly to a stranger, by the inclusion of the last paragraph of Item VI in his will. To hold that this language constitutes a request only is to hold that the testator, in leaving the family residence and one acre to three of his children jointly, created a situation which would likely result in the defeat of the desire most prominently expressed in his will.

We find no case directly in point. We do find support, however, in the case of Daly v. Daly, 142 Tenn. 242, 218 S.W. 213 (1920) in which the Supreme Court construed the will of Thomas E. Daly. Daly, after giving all of his estate “both real and personal of whatever nature” to his wife, provided as follows:

I have remaining in the old home place in District No. 1 about near 200 acres of land where W. L. Daly and family now live.
I value this place at five thousand dollars ($5,000). It is my desire to help W. L. Daly and his other heirs (except Guy B. Daly) provide themselves a home; therefore I request that if the said W. L. Daly wants to secure this place, I suggest that when he executes ten non-interest bearing notes due respectively 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 years from date, then you can make him a deed, otherwise should W. L. Daly decline this offer, then have said tract of land sold and turned back into my estate.

Following an excellent discussion of the applicable authority, the Supreme Court affirmed the Trial Court and the Court of Civil Appeals in holding that the language in question was used imperatively and in requiring Mrs. Daly to convey to W. L. Daly the property in question upon receipt of the ten notes. The language used by D. C. Davis was as strong as that of Thomas E. Daly, and the Chancellor did not err in holding that it was used imperatively.

The assignment of error is overruled and the Decree of the Trial Court affirmed. The costs of appeal are assessed against the appellants and their sureties.

MATHERNE and NEARN, JJ., concur.

      . We specifically note the use of the word “wish” and the phrase “everything being equal”.


author: HAL HARDIN, Special Judge.

text:
    L. V. SHOCKLEY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 8, 1978.

      Robert S. Peters, Winchester, for appellant.

      Brooks McLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, J. William Pope, Jr., Dist. Atty. Gen., Pike-ville, Mike P. Lynch, Asst. Dist. Atty. Gen., Winchester, for appellee.
   OPINION

HAL HARDIN, Special Judge.

L. V. Shockley appeals his conviction for rape, for which he received a ten year penitentiary sentence. He now contends: (1) that the evidence fails to support the jury’s verdict, (2) that the trial court improperly applied T.C.A. § 40-2445 to restrict his right to cross-examine and to produce witnesses in his own behalf, (3) that he was unfairly prejudiced by the prosecution’s closing argument and the court’s refusal to entertain his objections to it, and (4) that the prosecution improperly introduced evidence of other crimes against him. For the reasons set out below, we have determined that the case must be retried.

The appellant’s first two assignments challenge the jury’s verdict as being contrary to the law and the evidence. The charges in this case were brought by the thirteen year old daughter of Shockley’s female co-habitant some four months after the alleged crime. She testified that she did not tell anyone of the occurrence at the time, because the appellant had threatened to hurt her mother. According to her testimony, the rape occurred after she accompanied the appellant to a local body shop to pick up his car, two or three weeks before Christmas in 1974. Discovering the car was not ready, the appellant purportedly drove to Keith Springs Mountain, pulled off the main road, went around to the prosecutrix’s side of the ear, forced her down on the seat, removed almost all of her clothes, told her he would not take her home unless she submitted, threatened her with his raised fist, and had sexual intercourse with her. The prosecutrix stated that she did not consent, that she struggled, and that the intercourse occurred against her will.

The prosecutrix testified that she became pregnant as a result of this occurrence. A local doctor testified that he examined her on March 22, 1975, and found her to be approximately three and a half to four months pregnant. Shortly after the pregnancy was discovered, according to the prosecutrix and her sister, the appellant tried to get her to “tell whose child it was,” hit their mother and the prosecutrix with a shotgun, set fire to the home, and tried to keep the prosecutrix and her mother from escaping the burning house. (One of the appellant’s sons stated that his father was standing at the door of the house after the fire started, but that both the prosecutrix and her mother got out of the house.) A neighbor testified that he went to the appellant’s house when the fire was discovered, asked what had happened, and a Shockley boy said that his father had set the fire and then got in the car and left. The neighbor stated that while attempting to put out the fire he saw the appellant drive by the house and stop at an intersection approximately five hundred yards away.

The appellant denied any sexual relations with the prosecutrix. He testified that after going to the body shop and discovering his car was not ready, he and the prosecu-trix went to get her a soft drink and candy before returning to pick up his car. On the way home they stopped only once, for two beers and a soft drink. He denied setting the fire in March, and he denied hitting or threatening anyone with a shotgun. According to the appellant, he left the scene of the fire in order to summon the fire department, there being no phone at his house, but upon getting to town was told that the firemen were already on their way. He said that he did not use a neighbor’s phone because he was not acquainted with them, although testimony at the trial established that other members of the Shockley household used this same phone on occasion.

Appellant utilizes a two-pronged argument in challenging the sufficiency of the evidence to support the jury’s verdict. First, he impliedly asserts that the prosecu-trix’s testimony is not credible. But by its verdict, the jury settles all conflicts in testimony and in so doing determines the credibility of the witnesses at trial. Hargrove v. State, 199 Tenn. 25, 28, 281 S.W.2d 692, 694 (1955); Tillery v. State, 4 Tenn.Cr.App. 569, 575, 474 S.W.2d 178, 181 (1971); Phillips v.. State, 480 S.W.2d 361 (Tenn.Cr.App.1972). In this case the jury obviously determined that the prosecutrix’s testimony was more credible than the appellant’s.

Secondly, appellant contends that even the evidence most favorable to the State’s case does not substantiate the exercise of sufficient force by the appellant or significant resistance by the prosecutrix to support a conviction of rape. But it is not necessary to prove that the rape victim was injured by the use of force, and the victim need only show that reasonable resistance was made given the circumstances of the case. King v. State, 210 Tenn. 150, 357 S.W.2d 42 (1962). The determination of whether the appellant used force in the commission of the act and whether the act was sufficiently resisted by the prosecutrix are factual questions for the jury. In this case there was proof from which the jury could find that the appellant threatened to hit the victim if she did not submit and that more vigorous resistance to his demands would have been useless. The appellant has not met his burden on appeal of showing that the evidence preponderates against the verdict and in favor of his innocence. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). We therefore overrule those assignments related to the sufficiency of the proof in this case.

In other assignments of error appellant challenges the admissibility of testimony relating to the pregnancy of the pros-ecutrix and events surrounding the fire. We have been unable to find any Tennessee cases dealing directly with the question of whether evidence of pregnancy is properly admitted in rape prosecutions. However, evidence relating to the presence of sperm in the victim has been held admissible as proof of intercourse in the general period of time that the alleged attack occurred. Black v. State, 479 S.W.2d 656, 659 (Tenn. Cr.App.1972). Likewise, evidence of pregnancy would also be relevant as proof of intercourse in the general period of time that the alleged attack occurred. The fact that neither the precise time of intercourse nor its perpetrator could be determined by evidence' of the pregnancy would go to the weight of such testimony and not its admissibility. Courts in other jurisdictions have thus concluded that evidence of pregnancy is admissible as proof of intercourse and as corroborating testimony of the prosecutrix. Martin v. Commonwealth, 476 S.W.2d 834 (Ky.1972); State v. McNeil, 277 N.C. 162, 176 S.E.2d 732 (1970); State v. Cross, 284 N.C. 174, 200 S.E.2d 27 (1973). We think the rule is sound, and we find no error in this regard.

Evidence of the pregnancy is also admissible as the basis for the State’s theory of the motivation underlying the alleged attempt to suppress or destroy evidence by setting fire to the house and blocking the passage of the prosecutrix and her mother after the fact of the pregnancy was disclosed. As pointed out in Marable v. State, 203 Tenn. 440, 313 S.W.2d 451 (1958);

“Then it is a well recognized principle of criminal law that:
‘The actions and behavior of accused when charged with the crime, or when confronted with the consequences or with the scene or surroundings of the crime with which he is charged, or when brought before the prosecuting witness for identification, or at the trial, are peculiarly relevant.' In receiving evidence of this kind, it is not easy, if at all possible, for courts to draw any line segregating those acts which to some minds may seem significant of guilt from those which are irrelevant because justifying no such inference. Any ex post facto indication by accused of a desire to evade prosecution may be shown as one of series of circumstances from which guilt may be inferred.’ ”

Although we conclude that the trial court rightfully admitted evidence of the prosecu-trix’s pregnancy, we think the court erred in preventing the appellant from presenting evidence that he was not the person who impregnated her. The trial court chose to invoke T.C.A. § 40-2445 over the appellant’s objection based on the alleged unconstitutionality of that statute. T.C.A. § 40-2445 provides that evidence of prior consensual sexual activity between the victim and any person other than the defendant shall not be admitted into evidence in rape prosecutions unless (1) consent is raised as a defense and (2) the trial judge, out of the presence of spectators and the jury, finds the evidence relevant.

The appellant’s challenge to the constitutionality of T.C.A. § 40-2445 is grounded on its alleged conflict with the confrontation clause of the United States Constitution’s Sixth Amendment and Article 1, Section 9 of the Tennessee Constitution. The appellant was apparently prepared to present testimony by another individual concerning the prior sexual conduct of the victim. Such evidence would have been relevant to the defense theory that the prosecutrix’s pregnancy was the result of sexual activity with a person other than the appellant. (The introduction of this testimony might also have affected the weight the jury gave to testimony regarding the fire. If the jury could believe that the victim was pregnant through intercourse with another, then the appellant’s version of what happened at the fire would become more convincing.) In essence, testimony of other consensual sexual activity by the prosecutrix could conceivably have swung the weight given to the evidence in the appellant’s favor.

In the only decision construing T.C.A. § 40-2445, another panel of this Court found it to be constitutional insofar as it prevents the use of prior consensual sexual activity for the sole purpose of attacking the victim’s credibility. See Freeman L. Bell v. State, unpublished, filed at Jackson, June 30, 1977. As pointed out in Bell, T.C.A. § 40-2445 establishes for specific sex-related offenses a rule of evidence similar to the rule adopted by the Supreme Court in State v. Morgan, 541 S.W.2d 385 (Tenn.1976), i. e., that specific instances of conduct, except those concerning character of truthfulness or untruthfulness, may not be used to attack or support the credibility of a witness. See Federal Rules of Evidence, Rule 608(b). But the Bell opinion did not consider the question presented in the instant case, that is, whether T.C.A. § 40-2445 may be constitutionally applied where evidence of the prosecutrix’s prior consensual sexual activity is used for a relevant purpose other than to contest issues of consent or credibility.

Before the appellant can be denied his constitutional right to cross-examine witnesses and to call witnesses in his own behalf, the competing interest which denies him that right must be closely examined and justified in the context of providing the defendant a fair trial. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Chambers, the United States Supreme Court said:

“The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process . The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the truth-determining process.’ Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213 (1970); Bruton v. United States, 391 U.S. 123, 135-137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). It is indeed, ‘an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.’ Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).” 410 U.S. at 294-95, 93 S.Ct. at 1045-46.

The similarities between Chambers and the instant case are striking. Chambers, who was charged with shooting a policeman, was barred by Mississippi’s “voucher” rule from cross-examining a witness, McDonald, as to whether McDonald had shot the policeman. He was also prevented, by a strict application of the hearsay rule, from calling as a witness in his behalf three men who are told by McDonald that he shot the policeman. In holding that Chambers was denied his due process rights to a fair trial, the United States Supreme Court concluded that the state policy underlying the voucher and hearsay rules would not be undermined by allowing Chambers to cross-examine McDonald and call the other three witnesses. 410 U.S. at 295-303, 93 S.Ct. 1038. To the contrary, the Court found that whatever benefit might have been gained from applying these rules was far outweighed by its devastating effect on Chamber’s defense. Likewise, in the instant case, Shockley was denied the opportunity to ask the prosecu-trix whether the act for which he was being charged, the intercourse causing her pregnancy, could have been committed by another person. He was also prevented from calling witnesses who would have testified that they could have been responsible for the act of intercourse which caused her pregnancy.

The ultimate consideration is whether the policy underlying T.C.A. § 40-2445 was aimed at preventing the admission of testimony regarding prior consensual sexual conduct under such circumstances as exist in this case. We are convinced that this was not the purpose behind the enactment of T.C.A. § 40 — 2445. This statute was enacted to eliminate the unjustified besmirching of a woman’s reputation by examining her prior sexual activities when such testimony is of highly dubious relevance to the issue of her later consent or her credibility. The strongest evidence against the appellant is the obvious fact of the prosecutrix’s pregnancy and her doctor’s testimony that conception could have occurred within the time period she claims to have been raped. Any evidence the appellant could have introduced to prove that his alleged victim was impregnated by another man would certainly be relevant to the issue of his guilt or innocence and would have a negative effect on the weight of testimony against him. Any embarrassment such testimony might cause the prosecutrix is far outweighed by the injustice to the appellant if he is denied fair and adequate confrontation rights in presenting his defense against the rape charge.

Put simply, the question here was not whether the prosecutrix had been rendered unworthy of belief because of prior promiscuity. The question was not whether prior consensual activity with others tended to prove consensual activity with the defendant. Those questions are foreclosed by T.C.A. § 40-2445. The peculiar issue here was whether the defendant, or someone else, was responsible for the pregnancy which the prosecutrix claimed was caused by a rape. We think this question falls outside the operation of T.C.A. § 40-2445 as a matter of public policy, legislative intent, and constitutional mandate.

Therefore, we hold that the trial judge erred in not permitting appellant to cross-examine the prosecutrix or call witnesses on his behalf for the purpose of proving the prosecutrix’s consensual sexual activity during the period in which conception might have occurred. We wish to make it clear that we are not hereby declaring T.C.A. § 40-2445 unconstitutional. Rather we are recognizing that the statute is not controlling in this particular case and that its application must be construed in light of the appellant’s due process rights. That the statute was not so construed in the trial of this case constitutes reversible error.

On a related basis, appellant assigns as error prejudicial statements made by the prosecuting attorney during jury argument and the trial judge’s action in forbidding counsel for appellant to object to the State’s argument. The district attorney commented on the fact that the appellant had not called on a certain witness whom he had subpoenaed, thereby implying that the appellant either had a weak case or was suppressing evidence. There is no doubt that when he made this argument the prosecutor was well aware that the witness was prevented from testifying by the judge’s ruling on T.C.A. § 40-2445. When the appellant objected that the district attorney was arguing outside the record, finally getting the objection on the record after being told to be seated, the trial judge called down counsel for the appellant, stating: “You don’t have to object while he’s arguing, I’ve asked you to be seated and I expect you to remain so.”

Not only was the prosecutor’s comment prejudicial, but the trial judge was clearly in error in not permitting counsel to enter his objection. It is fundamental that contemporaneous objection must be made in order to preserve the issue on appeal. Harris v. State, 3 Tenn.Cr.App. 64, 457 S.W.2d 370 (1970); Gunter v. State, 499 S.W.2d 954 (Tenn.Cr.App.1973). Because defense counsel had been effectively silenced, the district attorney was later able to assert as part of his argument that the appellant got “his kicks out of taking advantage of young children.”

We recognize that trial judges are given wide discretion in controlling the argument of counsel, and their actions will not be reviewed absent abuse of that discretion. White v. State, 210 Tenn. 78, 356 S.W.2d 411 (1962); Smith v. State, 527 S.W.2d 737 (Tenn.1975). But it is an abuse of judicial discretion to allow the prosecutor, over objection, to inflame the jury with intemperate argument, not predicated on evidence introduced during the trial of the case, an not pertinent to the issue tried. Russell v. State, 532 S.W.2d 268 (Tenn. 1976). Improper conduct in closing argument by the prosecuting attorney warrants reversal of the conviction if such conduct could have affected the verdict to the prejudice of the defendant. Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1965); King v. State, 1 Tenn.Cr.App. 101, 430 S.W.2d 810 (1968).

We conclude that the district attorney’s statements, as well as the trial judge’s prohibition on objections by the defense counsel during jury argument, were so highly prejudicial that they may well have affected the verdict to the prejudice of the appellant. Certainly we are unable to say beyond a reasonable doubt that the improper argument and the trial court’s failure to control it did not affect the outcome of the trial. The resulting error is therefore reversible in nature. Judge v. State, 539 S.W.2d 340 (Tenn.Cr.App.1976).

Finally, the appellant contends that the trial court improperly allowed evidence of other crimes to be introduced against him, in violation of the well recognized rule that proof of unrelated crimes committed by an accused is inadmissible to show that he is guilty of the crime charged, even though it is similar in nature. Mays v. State, 145 Tenn. 118, 238 S.W. 1096 (1921). The specific evidence in question was the testimony of the prosecutrix’s sister that the appellant had sexually assaulted her in an automobile sometime during 1974. Upon cross-examination, her testimony was substantially impeached by proof that she had given inconsistent testimony regarding this alleged occurrence at an earlier trial.

The trial judge allowed this testimony on two grounds, first, that it was proper rebuttal to impeach the appellant’s testimony (in which he denied that he had ever engaged in sexual conduct with the sister), and, second, that it was admissible to establish the appellant’s propensity to commit the crime for which he was being tried.

Whatever the state of the law at the time with regard to the first ground, it is clear that under current law the trial court’s ruling on this point would have been wholly erroneous. The decision in State v. Morgan, 541 S.W.2d 385 (Tenn.1976), reported since the trial of the case before us, requires that in instances where specific acts of conduct not resulting in criminal convictions are offered to impeach, the trial court must determine: (1) that they are “probative of truthfulness or untruthfulness” and (2) that “the probative value of such evidence outweighs its prejudicial effect.” Id. at 388, 390. The Morgan rule further provides that extrinsic evidence of specific acts may not be introduced and that “When such cross-examination is permitted the answer of the witness shall be conclusive.” Id. at 390. It follows that under Morgan the specific act in question would not have been considered probative and, in any event that the appellant’s denial would have foreclosed further impeachment inquiry into his alleged attack on the prosecu-trix’s sister. Thus the rebuttal testimony would have constituted error. The Morgan rule will, of course, be applicable to this case upon retrial.

The propensity question raises an issue which, unfortunately, does not lend itself to such a ready solution. The appellant correctly points out that the general rule prohibits propensity evidence to establish guilt, i. e. that the accused has committed bad acts in the past, from which the trier of fact may conclude that he or she is the kind of “bad person” likely to commit the crime charged. While it is conceded that such evidence has logical relevancy, see generally E. Cleary, McCormick on Evidence § 190 (2d ed. 1972); D. Paine, Tennessee Law of Evidence § 3 (1974), it has generally been felt that the danger of prejudice involved in such an inquiry outweighs the probative value to be gained from it. However, evidence of other crimes by the accused has been permitted when it is relevant to certain material issues at trial. These exceptions to the general rule are, for the most part, well recognized. They include proof of (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common schéme or plan for the commission of two or more crimes so related to each other than the proof of one tends to establish the others, and (5) the identity of the accused as the perpetrator of the crime with which he or she is charged. Carroll v. State, 212 Tenn. 464, 477-78, 370 S.W.2d 523, 529 (1963).

Some scholars have noted a trend toward the emergence of a sixth category: proof of a propensity toward the commission of sex crimes. In jurisdictions recognizing such an exception to the general rule, evidence has been limited to illicit sexual relations with the particular person involved in the crime on trial. McCormick, supra at p. 449. See also Paine, supra at p. 9. But there is dictum in at least one Tennessee case which would extend the rule in cases involving sexual perversion to cover like perverted sex acts with other victims also. Carroll v. State, supra at 530.

Despite the dictum in Carroll, the sex crimes exception apparently has not gained wide endorsement in Tennessee. See, e. g., Dix v. State, 4 Tenn.Cr.App. 412, 472 S.W.2d 243 (1971), in which a panel of this court held that evidence of a previous sexual assault by the defendant on his stepson was not admissible to prove that he committed a sexual assault on his son.

We are reluctant to adopt and apply the sex crimes exception here, because we recognize the inherently inflammatory nature of this kind of evidence. Whatever the probative value of such proof on balance the danger of prejudice may require the sacrifice of relevant evidence in order to assure fairness to the criminal defendant. As one scholar has noted:

. some of the wiser opinions (especially recent ones) recognize that the problem is not merely one of pigeonholing, but one of balancing, on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to over mastering hostility. (Footnotes omitted).

McCormick, supra at p. 453.

Applying these factors, we conclude that the testimony of the prosecu-trix’s sister should not have been allowed on the “propensity” basis articulated by the trial court. Although it might be possible to allow other crimes evidence of this nature in order to establish the identity of the appellant as the impregnator of the prose-cutrix, the evidence before us fails to establish a common pattern of conduct so unusual and distinctive or a method of operation so nearly identical as to make the prior assault admissible under this exception. It follows that evidence of the other crime should not have been admitted on the issue of the appellant’s guilt. Upon retrial, this proof should be reviewed by the trial judge at a jury-out hearing with utmost caution and discretion, in view of the potential for prejudice and thus for reversible error.

The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

RUSSELL and DAUGHTREY, JJ., concur.

       Before considering these errors it should be noted that the original bill of exceptions submitted to this Court did not contain the jury arguments. However, by motion to suggest diminution of the record, counsel for appellant has certified that his copy of the bill of exceptions did include the jury argument of the Assistant Attorney General as “an integral part of the second volume of the bill of exceptions.” In submitting a certified transcript of the argument of the State attorney, counsel for appellant also submitted an affidavit and certificate of the official court reporter and a certificate of the trial judge. In the interests of justice, and to correct what appears to be only a clerical error, we authorize the filing of this addition to the bill of exceptions pursuant to the authority of T.C.A. § 27-111.


author: STEAKLEY, Justice. McGEE, Justice,

text:
    Warren H. SMITH et ux., Petitioners, v. NATIONAL RESORT COMMUNITIES, INC., Respondent.
    No. B-8168.
    Supreme Court of Texas.
    June 27, 1979.
    Rehearing Denied Sept. 19, 1979.

      Hooper, Robinson & Moeller, Malcolm Robinson, Austin, for petitioners.
    Clark, Thomas, Winters & Shapiro, Barry Bishop and Mary Joe Carroll, Austin, for respondent.
   STEAKLEY, Justice.

This is a suit by Warren H. Smith and wife for rescission of a contract to buy a lakefront lot, and for restitution, with the damages alleged to be in the amount of the purchase price, $25,700, plus “a reasonable amount of interest on said amount from July 2, 1973, plus expenditures for taxes from such time.” After trial to the court a take-nothing judgment was rendered. The trial court concluded that the Smiths had failed to prove the elements required to support the remedy of rescission. This judgment was affirmed by the Court of Civil Appeals. Smith v. National Resort Communities, Inc., 574 S.W.2d 639. We will reverse these judgments and render judgment for the Smiths.

Warren H. Smith and wife, plaintiffs below and Petitioners here, are residents of Dallas County, Texas. National Resort Communities, Inc., herein called NRC, the defendant below and Respondent here, was the developer of Highland Lake Estates on Lake Travis, located northwest of Austin, Texas. In 1973, the Smiths were flown to view the residential lots in the subdivision. Under date of May 12, 1973, they executed with NRC a Contract for Deed in which they agreed to buy Lot No. 23052, Section 23, Highland Lake Estates, for a cash price of $25,700. The lot was later conveyed to the Smiths by warranty deed under date of August 9, 1973.

This suit for rescission by the Smiths is grounded on allegations that the lot was not usable for residential purposes because it was wholly below the 715 foot contour line and as such was subject to inundation under an easement held by the Lower Colo.rado River Authority, a fact unknown to the Smiths and not disclosed to them by NRC.

In response to Requests for Admissions served by the Smiths pursuant to Rule 169, Texas Rules of Civil Procedure, NRC admitted:

1. On your standard contract for deed executed between yourself and the Plaintiffs there are no written statements concerning a 715 foot easement granted to the Lower Colorado River Authority.
3. There are no contour lines showing elevations reflected on the Plat of Highland Lake Estates, Section 23, recorded in Volume 58 at Page 22 of the Plat Records of Travis County, Texas.
7. Lot 23052, Highland Lake Estates, Section 23, is entirely below the 715 foot contour line and is within the overflow easement granted to the Lower Colorado River Authority.
8. The Defendant, NRC, Inc., on May 12, 1973, had knowledge that Lot 23052, Highland Lake Estates, Section 23, was below the 715 foot contour line and subject to the overflow easement granted to the Lower Colorado River Authority.
9. In neither the contract for deed between National Resort Communities, Inc., and the Plaintiffs nor in the warranty deed from the Defendant to the Plaintiffs recorded in the Deed Records of Travis County, Texas, is there a reference that Lot 23052, Highland Lake Estates, Section 22, [sic] is below the 715 foot contour line.
10. If the Lower Colorado River Authority exercised its rights under the overflow easement and maintained the water level at 715 foot contour mark then Lot 23052 of Highland Lake Estates, Sec-' tion 23, would be completely underwater.

A sales brochure received by the Smiths on the promotional trip is in evidence. Its major emphasis is upon the attractiveness of the lots in Highland Lake Estates as a homesite in a resort and recreational area. It is undisputed that the Smiths were not personally informed by any representative of NRC of the LCRA overflow easement or that the lot they were purchasing was below the 715 foot contour line. There was no reference to or suggestion of the existence of the easement in the promotional literature. The general counsel of NRC testified that the deed records referred to on the plat of Highland Lake Estates, Section 23, did not disclose the elevation of the lots with reference to the 715 foot contour line. It also appears to be undisputed that there was no type of marker showing the elevation of the lot purchased by the Smiths, and it was conceded by NRC in its Reply Brief that the exact elevation of the lot could be determined only through a survey. Further, we find no evidentiary support in the record for the finding of the trial court that “there was visible evidence that Lake Travis had risen above the level of Lot 23052 and adjoining lots in the past, and this visible evidence existed on the date of plaintiffs’ purchase of Lot 23052.” NRC says in its Reply Brief that this conclusion of the trial court “was apparently reached from the photographs introduced into evidence, which show the condition of the lot.” Our conclusion after inspecting these photographs is that they do not constitute evidence that it was visible that Lake Travis had risen above the level of the lot purchased by the Smiths.

The problem here does not concern defects affecting marketable title to property of which a buyer may be charged with notice. We are concerned with conditions affecting the suitability of the property for use in building a home, the purpose for which NRC promoted its sale and for which the property was purchased by the Smiths. Although our courts have not directly addressed this problem, the parties appear to be in agreement that the applicable rule, with which we agree, is that a seller of real estate is under a duty of disclosing material facts which would not be discoverable by the exercise of ordinary care and diligence on the part of the purchaser, or which a reasonable investigation and inquiry would not uncover. See Keeton, Rights of Disappointed Purchasers, 32 Tex.L.Rev. 1 (1953). As to this, there is less strictness in recognizing a right of rescission and restitution in contrast to a deceit action in which damages are sought. W. PROSSER, LAW OF TORTS § 110 at 731-36 (4th ed. 1971). The RESTATEMENT (SECOND) OF TORTS § 551, comment (b) (1977) states that even in the absence of a duty of disclosure, a purchaser is entitled to rescind the transaction if an undisclosed fact is basic and one which the seller knows his purchaser would regard as material.

A corollary principle is that where there is a duty to speak, silence may be as misleading as á positive misrepresentation of existing facts. Rowntree v. Rice, 426 S.W.2d 890 (Tex.Civ.App.1968, writ ref’d n. r. e.). There is an analogy to the rule considered by us in considerable depth, and with approval, in Champlin Oil & Refining Co. v. Chastain, 403 S.W.2d 376 (Tex.1965), that an estoppel may arise as effectually from silence, where there is a duty to speak, as from words spoken. See generally, Weintraub v. Krobatsch, 64 N.J. 445, 317 A.2d 68 (1974); Clauser v. Tayior, 44 Cal. App.2d 453, 112 P.2d 661 (1941); Cohen v. Vivian, 141 Colo. 443, 349 P.2d 366, 80 A.L. R.2d 1448 (1960); Sorrell v. Young, 6 Wash. App. 220, 491 P.2d 1312 (1971); and the Annotation, Fraud Predicated on Vendor’s Misrepresentation or Concealment of Danger or Possibility of Flooding or Other Unfavorable Water Conditions, II. Silence, § 3. Overflow or flooding of property generally, 90 A.L.R.3d 568, 583 (1979).

On the occasion of the execution of the contract of sale of the lot in question, the Smiths received an offset printed sheet entitled “STATEMENT OF RESERVATIONS, RESTRICTIONS, TAXES AND ASSESSMENTS,” together with a twenty-eight page writing with the caption “Declaration of Reservations Highland Lake Estates County of Travis, Texas.” NRC contends that these writings reasonably disclosed to the Smiths the material facts of the LCRA overflow easement and that the lot purchased by them was below the 715 foot contour line, or alerted them to investigate the possible existence of these facts. The Court of Civil Appeals held that the writings were some evidence in support of the finding of the trial court that “a person of ordinary intelligence, in the exercise of reasonable diligence, would be placed on notice that the flood easement might affect the lot in question.” Upon detailed examination of these writings we disagree with the finding of the trial court and with the conclusions of the Court of Civil Appeals.

The STATEMENT is divided into three sections, only one of which is material here. It is introduced with the words “Reservations and Restrictions: ” and reads as follows:

RESERVATIONS AND RESTRICTIONS: The reservations and restrictions affecting the lots in this subdivision are those recorded in Book 3987 at Page 2140 of the Land Records of Travis County, Texas, a copy of which is attached to and is part of this Statement of Reservations, Restrictions, Taxes and Assessments. These reservations and restrictions are enforceable by other lot owners in the subdivision.

There is no reference to or suggestion of any easement held by LCRA or any other entity. Indeed, the last sentence, “These reservations and restrictions are enforceable by other lot owners in the subdivision.” clearly indicates that the reservations or restrictions were for the benefit of other lot owners, and were designed for their mutual protection. The copy of the Reservations attached to the STATEMENT is also misleading as to the LCRA easement. On its first page the Declaration refers to plats of record pertaining to Sections 4, 5, 6, 8, 9,10 and 14. The lot purchased by the Smiths is in Section 23. The Declaration also states that it is “designed for the mutual benefit of the lots . . . and does hereby fix the protective conditions upon and subject to which all lots, parcels and portions . . . shall be held; ” and further, “[that such restrictions] are and each thereof is imposed upon said Tract as a mutual equitable servitude in favor of each and every parcel of land therein as the dominant tenements, . ” There then follows the major heading COMMITTEE OP ARCHITECTURE, with various divisions in sequence, titled as follows:

IMPROVEMENT STANDARDS (with four sub-paragraphs);

LAND USE AREAS — GENERAL, with subheadings, Advertising, Air Conditioning Units, Moorings, Piers or Docks, Building Exterior, Clothes Lines, Dust and Erosion Control, Easements, Electrical Power, Nuisances, Occupancy of Structures, Plumbing, Storage of Materials, Storage of Tools and Trash, Temporary Buildings, Unnatural Drainage, Drilling and Mining, Use of Premises, Subdivision of Lots, LCRA Overflow Easement;

LAND USE AREAS — RESIDENTIAL, with subheadings, Livestock, Poultry and Pets, Sewage Disposal Systems, Side Distances, Garages and Carports, Spaces Between Buildings — Passage Ways to Dwelling Units, Location of Accessory Buildings — in the R Land Use Areas, Side Yard Setback — Reverse Corner Lots;

R-l SINGLE FAMILY RESIDENTIAL DISTRICT, with subheadings, Uses Permitted, Maximum Building Height, Minimum Yard Requirements, Maximum Area of Dwelling, Minimum Dwelling Unit Size;

R-2 TWO FAMILY RESIDENTIAL DISTRICT, with subheadings, Uses Permitted, Maximum Building Height, Minimum Yard Requirements, Maximum Area of Dwelling, Minimum Dwelling Unit Size;

R-4 MULTIPLE RESIDENTIAL DISTRICT, with subheadings, Uses Permitted, Maximum Building Height, Minimum Yard Requirements, Maximum Area of Dwelling, Minimum Automobile Parking Requirements, Minimum Dwelling Unit Size;

R-6 APARTMENT, TOWNHOUSE & COTTAGE DISTRICT, with subheadings, Uses Permitted, Maximum Building Height, Minimum Yard Requirements, Maximum Area of Dwelling, Minimum Automobile Parking Requirements, Minimum Dwelling Unit Size;

C-2 GENERAL COMMERCIAL DISTRICT, with subheadings, Uses Permitted, Maximum Building Height, Storage of Materials, Maximum Area of Building; and

GENERAL PROVISIONS, with subheadings, Duration, Notices, Severability, Enforcement, and Maintenance Fee and Property Owner’s Association.

Item 19, under the heading, “B. Land Uses Areas — General” at the bottom of page 8, reads as follows:

19. LCRA Overflow Easement.

The Lower Colorado River Authority holds an easement to innundate [sic] and overflow any portion of the subdivision lying below the contour line 715 feet above sea level. Any such areas shall be subject to such easement, and all structures and improvements therein shall be constructed so as to accommodate any such inundation or overflow in a fashion approved by the Architectural Committee.

There is no suggestion in this recitation that any lot other than those in Sections 4, 5, 6, 8, 9, 10 and 14 were below the 715 foot contour line. One would reasonably infer that a lot in another section, such as Section 23, would not lie below the 715 foot contour line and as such would not be subject to inundation under the LCRA overflow easement. Indeed, a careful reading by the Smiths of the entire Declaration of twenty-eight pages would yet not have reasonably alerted them to the possibility that the mentioned easement encumbered the lot they were purchasing.

Accordingly, we hold that the Smiths established their right to judgment rescinding their contract with NRC for the purchase of the lot in question. As previously noted, the trial court rendered a take-nothing judgment against the Smiths in their suit for rescission and this rendered unnecessary a determination of the suit for damages in the nature of restitution. Rescission is an equitable remedy and, as a general rule, the measure of damage is the return of the consideration paid, together with such further special damage or expense as may have been reasonably incurred by the party wronged on account of the contract. Groce v. P. B. Yates Mach. Co., 288 S.W. 161 (Tex.Comm’n App.1926, jdgmt adopted), citing Hunt County Oil Co. v. Scott, 28 Tex.Civ.App. 213, 67 S.W. 451, 452 (1902 writ ref’d); Holland v. Western Bank & Trust Co., 56 Tex.Civ.App. 324, 118 S.W. 218, 119 S.W. 694 (1909); Wintz v. Morrison, 17 Tex. 372, 67 Am.Dec. 658 (1856); H. BLACK RESCISSION OF CONTRACTS AND CANCELLATION OF WRITTEN INSTRUMENTS § 695 (1916). See also Atkins v. Beasley, 544 S.W.2d 505 (Tex.Civ.App.1976, no writ) and cases there cited stating the principle that if damages as well as rescission are essential to accomplish full justice, they will both be allowed.

The special damage established at trial by the Smiths was the payment of taxes for two years in the sum of $49.90, and the payment of an annual ■ maintenance fund bill from NRC in the sum of $48.00, a total sum of $97.90.

The Smiths also sought “a reasonable amount of interest” on the purchase price of $25,700 “from July 2, 1973.” The reason for or .the significance of the date of July 2, 1973, is nowhere shown. It was admitted by NRC that the Smiths' “paid” and NRC “received the sum of $25,700 for Lot 23052 . . . .” It is indicated in the testimony of Warren H. Smith that this occurred on August 9, 1973, the date NRC conveyed Lot 23052 to the Smiths by warranty deed.

This Court in Watkins v. Junker, 90 Tex. 584, 40 S.W. 11 (1897) laid down the rules that where the measure of recovery is fixed by the conditions existing at the time that the injury is inflicted, the person entitled to recover has also the right to have compensation for the detention of the money to which he is entitled by reason of the wrong done to him; that if interest be properly an element of damages in any case, then it is so as a matter of law; and that the courts have by analogy adopted the legal rate of interest fixed by statute as the standard by which to be governed in assessing damages for the detention of money. Accord, Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83 (1955).

Accordingly, the judgments of the Court of Civil Appeals and of the trial court are reversed and judgment is rendered rescinding the contract of May 12, 1973 and August 9, 1973, between the Smiths and NRC, and awarding damages to the Smiths in the sum of $25,700, plus interest thereon at the legal rate of six per cent from August 9, 1973, plus the sum of $97.90.

GREENHILL, C. J., and CAMPBELL, J., concur in result.

Dissenting opinion by McGEE, J.

McGEE, Justice,

dissenting.

I respectfully dissent, and would affirm the judgment of the court of civil appeals for the reasons stated in its opinion. 574 S.W.2d 639.

      . We agree with the holding of the Court of Civil Appeals that the furnishing of a title policy after consummation of the transaction was after the fact, and did not serve the purposes of disclosure.

      . Two years ago Lago Vista was acquired by National Resort Communities, Inc., a subsidiary formed by the huge National Homes Corporation to capture a share of the booming American market for homesites in resort and recreation areas. .

      Implementing the venture is Ray Thomas, marketing vice president. .

      Everything that has proved so popular ... at Lago Vista is now being complemented with similar undertakings at Highland Lake Estates next door. ,

      'Customers are more affluent, too,’ Thomas has pointed out. . . . That means that
      lots of people who have always wanted a lakeside retreat can now own one.
      But do they really want a lakeside retreat? One more study, this one by the University of Michigan, indicates they do. Its researchers polled people to see what they earmarked their savings for. A majority replied, ‘A second home.’ Not a larger home, but an auxiliary one.

      Who buys lots, builds second homes at Highland Lake Estates and Lago Vista?

      T think only 25 per cent of our customers, something like that, make their purchases simply for investment’s sake,’ Thomas says. The other 75 per cent sincerely intend to build a second home, or an ultimate home, on their property.

      The landscape is changing dramatically. More than 75 houses, ranging from charming to luxurious, have sprouted on Lago Vista’s golden shores, and new foundations are being poured. As Ray Thomas says, ‘In the near future every site will have a home occupied by a lucky family. This, after all, is the end-product we are shooting for.’
      Sales Brochure, Highland Lake Estates/Lago Vista.

      . Indeed, these photographs were introduced into evidence by Counsel for NRC with this statement:
      “I will throw them in and add to your pile. These are the Defendants Exhibits 1-10. They are photographs of property and surrounding property, and I see little benefit to them, but as long as we’ve got them, we’U introduce them.”


author: PER CURIAM.

text:
    LAKEWAY COMPANY, Petitioner, v. LEON HOWARD, INC., Respondent.
    No. B-8425.
    Supreme Court of Texas.
    July 3, 1979.
    Rehearing Denied July 25, 1979.

      Mike Willatt, Austin, for petitioner.
    Hooper, Robinson & Moeller, Malcolm Robinson, Austin, for respondent.
   PER CURIAM.

Leon Howard, Inc., (Howard) brought this suit against Lakeway Company to recover an amount allegedly due under a contract to perform architectural services in connection with the construction of a golf course. Howard claimed that Lakeway had agreed to pay it $23,000.00 for the architectural services and that $2,443.75 was still owing under that agreement. Lakeway claimed that it had agreed to pay only $18,000.00 for the services. As will be developed below, the main problem is the applicability of the parol evidence rule.

Trial was to the court. The trial court rendered judgment for Howard. It awarded Howard $2,433.75 for breach of contract and $815.00 in attorneys’ fees. The court found that Lakeway and Howard had made a written agreement on October 23, 1969, whereby Lakeway would pay Howard $18,-000.00 to design an eighteen-hole golf course. The court then found that “simultaneous with such written agreement” the parties made an oral agreement whereby Howard would be given a $5,000.00 discount for the purchase of some real estate from Lakeway. Finally, the trial court found that on or about January 27, 1972, the parties agreed to incorporate the $5,000.00 discount agreement on the purchase of the real estate into the architectural services agreement, thereby making the total consideration for the services $23,000.00.

The Court of Civil Appeals affirmed. 578 S.W.2d 163. The court recited two rules of law as support for its judgment. The first was that parol evidence is admissible to contradict a recital of consideration in a written instrument. Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184 (1955). The second was that the parol evidence rule does not preclude enforcement of prior or contemporaneous agreements which are collateral to an integrated agreement and do not vary or contradict the terms of the agreement. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30 (1958).

Neither of these two rules is applicable here. When the consideration expressed in a writing is contractual in nature, and is not simply a recital of consideration already performed, the parol evidence rule does apply. Reserve Life Insurance Co. v. Buford, 241 S.W.2d 973 (Tex.Civ.App. —Eastland 1951, writ ref’d). A previous or simultaneous agreement to alter the fee agreed upon in a written contract is in conflict with the written contract and not merely collateral to it.

The judgment of the Court of Civil Appeals is correct, however, because there is evidence, as well as a finding of fact, that the parties did not incorporate the agreement for the additional $5,000.00 into the original written contract until January 27, 1972, some two years after the making of the written agreement. The parol evidence rule does not apply to agreements made subsequent to the written agreement. Garcia v. Karam, 154 Tex. 240, 276 S.W.2d 255 (1955). The trial court’s finding that there was a “simultaneous” oral agreement to give Howard a $5,000.00 discount on the purchase of real estate does not conflict with its finding that the parties incorporated the $5,000.00 agreement some two years subsequent to the original written agreement. The finding as to the “simultaneous” oral agreement refers to an agreement to discount the purchase price of real estate. Thus, at that time, the parties had not made a definite agreement for an additional $5,000.00 for the architectural services — the $5,000.00 discount required the purchase of the real estate.

It should further be noted that Lakeway did not plead that the subsequent agreement for an additional $5,000.00 was not supported by consideration. Lack of consideration is an affirmative defense and must be pleaded. Rule 94, Texas Rules of Civil Procedure.

The application for writ of error is refused, no reversible error.