author: DAVIS, Commissioner.

text:
    Harold G. DRAPER, Appellant, v. The STATE of Texas, Appellee.
    No. 51127.
    Court of Criminal Appeals of Texas.
    July 19, 1976.
    Harry L. Williams, Fort Worth, for appellant.

      Wiley L. Cheatham, Dist. Atty., Cuero, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for theft of property over the value of $200.00 and less than $10,000.00. After the jury returned a verdict of guilty, punishment was assessed by the court at ten years probated and a $1,000.00 fine.

At the outset, appellant contends, “The trial court erred in overruling the appellant’s Motion to Suppress evidence illegally acquired by the State.”

Appellant’s complaint is directed to the admission into evidence of an insurance application, a check written by a complaining witness to pay for a first quarter premium, and a “pitch sheet,” all taken from appellant’s briefcase, which he left in the Goliad County Sheriff’s office in the early morning hours of September 5, 1974, the day after he had sold the insurance policy which gives rise to this prosecution.

The record reflects that Deputy Sheriff Mills had received reports that there were people in Goliad County purporting to sell insurance through the Agricultural Stabilization and Conservation Service, commonly referred to as the ASCS. Howard McRae, an investigator for the State Board of Insurance, came to Goliad County at the request of the sheriff’s office. Arrangements were made for McRae to camp on land belonging to Garland and Sandra Hoff. After learning of McRae’s occupation, the Hoffs told McRae about their purchase of an insurance policy from some ASCS men. As a result of this conversation, McRae advised Mills that he wanted to talk to appellant. Upon a check at the motel where appellant was staying, it was learned that appellant had gone to have “a few drinks.” Appellant was located about midnight on his way back to Goliad from Victoria in the company of his cousin, one Terry Newsom. They were stopped by Texas Highway Patrolman Montgomery, who advised them that an investigator from the State Insurance Board wanted to talk to them and asked them to follow him to the courthouse. Appellant testified at the motion to suppress that he did not consider himself under arrest at this time. The testimony as to the events which ensued at the courthouse is in conflict. Appellant testified that he felt that he was in custody from the time he arrived at the courthouse until “. . . McRae said I was free to go.” Appellant further testified that McRae threatened to file on Newsom for DWI and appellant for “drunk in public” if appellant didn’t turn over to the officers the “insurance paraphernalia I had in my car.” After appellant gave the officers his briefcase, he was allowed to return to his motel. No complaint was filed against appellant, and it was about five months before an indictment was returned against appellant.

McRae testified that appellant was never threatened in any way. According to McRae, appellant “contended that the insurance had been properly sold, he’d be glad to leave his sales material. . . . Mr. Draper [appellant] turned his briefcase and contents over to the deputy.” It was agreed that appellant would come in the next day and discuss the matter. Appellant did not return the next day, nor did ever come back for his briefcase.

Mills testified that appellant “voluntarily turned them [briefcase and papers] over to us.” Mills stated that appellant was never placed under arrest on the night in question and “was advised a number of times that he wasn’t under arrest and that he could leave at any time.” No warning of rights was given appellant.

The trial judge was the judge of the credibility of the witnesses and the facts on the motion to suppress. The testimony of the officers reflects that appellant voluntarily turned over his briefcase and its contents to the officers in an apparent effort to dispel suspicion. The court could reject all of appellant’s testimony, as it apparently did, relative to threats being made to obtain the briefcase. The record does not support appellant’s contention that he was in custody, but to the contrary reveals that he was only under suspicion. See Heredia v. State, Tex.Cr.App., 528 S.W.2d 847; Brown v. State, Tex.Cr.App., 475 S.W.2d 938.

In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), where, as here, the party alleged to have given his consent was not advised that he had a right to refuse consent, the United States Supreme Court said:

“Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of [his] right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.”

We reject appellant’s contention that a “Miranda warning” should have been given since appellant was not under arrest. Even if appellant had been under arrest, his consent would not have been vitiated provided it had been freely and voluntarily given. Ribble v. State, 503 S.W.2d 551. We find that the failure to advise appellant that he had a right to refuse to consent to search of his briefcase did not render his consent involuntary under the circumstances here presented.

No error is shown in the court overruling appellant’s motion to suppress.

Appellant contends that the evidence is insufficient to support the conviction.

Appellant urges that, “to have obtained the check unlawfully from the alleged injured parties the appellant would have had to obtain the check without their ‘effective consent’ and with the ‘intent to deprive,’ and the intent to deprive had to exist at the time of the taking.”

At the time of the commission of the instant offense, V.T.C.A. Penal Code, See. 31.03, “Theft,” provided in pertinent part:

“(a) A person commits an offense if, with intent to deprive the owner of property:
(2) he exercises control over the property, other than real property, unlawfully.
(b) Obtaining or exercising control over property is unlawful if:
(1) the actor obtains or exercises control over the property without the owner’s effective consent; . . . .”

V.T.C.A. Penal Code, Sec. 31.01, “Definitions,” provides in pertinent part:

“In this chapter:
(2) ‘Deception’ means:
(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;
(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.
(3) ‘Deprive’ means:
(A) to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner;
(4) ‘Effective consent’ includes consent by a person legally authorized to act for the owner. Consent is not effective if:
(A) induced by deception or coercion;
(6) ‘Property’ means:
(C) a document, including money, that represents or embodies anything of value.”

Appellant first attacks the sufficiency of the evidence to show a lack of effective consent. He urges that the State failed to prove any deception on his part within the meaning of Sec. 31.01(2)(A): creating or confirming a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true. Appellant states that,

“In attempting to make its case under this section the State tried to prove that the appellant told the alleged injured parties that the policy would cover three or four minor things which it did not actually cover, but by State’s Exhibit No. 1 [“pitch sheet”] . . . shows that the matters which the alleged injured parties say were misrepresented to them were marked out on the material which he used to explain the policy to them.”

The misrepresentations of policy coverage made by appellant can hardly be characterized as “minor.” The Hoffs testified that appellant told them that the policy would cover 100% of expenses of each illness up to the maximum they selected. They testified that he told them that coverage of accidental injuries was immediate from their signing of the application, and that all other coverage was effective as soon as their family doctor returned to the company a card giving information on them. Additionally, they testified that appellant told them that doctor calls at home would be covered up to the maximum amount they selected.

Woody Pogue, Headquarter Section Manager of the Life Division of the State Insurance Board, testified that the accident and health policies of American Service Life Insurance Company (the company appellant purported to represent) approved for sale in Texas in fact covered only customary charges up to the maximum selected, not 100% of charges. He also testified that doctor calls at home were not covered, that the policies were effective only upon acceptance by the company regardless of the nature of the injury, and that surgical benefits were effective only after a 60 day waiting period. The Hoffs each testified that had they known any of these representations made by appellant to the contrary were incorrect, they would not have purchased the policy.

Appellant contends that the testimony that he made such representations is rebutted by the “pitch sheet” used by him to sell the policy. The “pitch sheet” in the record before us is a large sheet of paper outlining the benefits of the policy sold by appellant. Appellant points to several items on the sheet which are marked through. On the sheet the $500 and $1,000 benefit máxi-mums are marked out. They were not among the alleged misrepresentations and thus the markings rebut nothing. Also marked through are an “out patient care” benefit of $50.00 and an “ambulance” benefit of $50.00. Unless the out-patient care benefit relates to home doctor calls, these markings also rebut none of the alleged misrepresentations. If the out-patient care benefit is construed to cover home doctor calls, it was within the jury’s discretion to believe the testimony of the Hoffs that appellant orally misrepresented this benefit to them and that they were deceived thereby. Ables v. State, Tex.Cr.App., 519 S.W.2d 464; Belcher v. State, Tex.Cr.App., 504 S.W.2d 858, 862.

We note that “full customary charges” is specified next to benefits A through Y on the pitch sheet. However, the pitch sheet also states, “Pays 100% of your HOSPITAL and DOCTOR BILLS” up to stated máxi-mums, and elsewhere, “This Farmer and Rancher Plan pays all of your hospital and doctor bills, not half, not 80%, but every single penny you are charged up to the maximum amount selected by you.” The contradictory nature of these statements on the sheet lends credence to the Hoffs’ testimony that appellant told them 100% of their expenses would be paid, rather than just the charges customary in the locale. See Ables v. State, supra; Belcher v. State, supra.

Both the Hoffs testified that appellant represented to them that he was selling the insurance policy through the Agriculture Stabilization and Conservation Service, an agency of the federal government, and that the policy was a “special enrollment” type for farmers and ranchers. State Board of Insurance representative Pogue testified that the “special enrollment plan” designation had been prohibited by their agency as misleading in that it implies group insurance and this is not a group insurance policy. A representative of the Agricultural Stabilization and Conservation Service, Marshall McDonald, testified that no insurance company was in any way affiliated with or authorized to sell insurance through their agency. Both complaining witnesses testified that they would not have bought the policy had they known these representations were not true. This evidence is clearly sufficient to show deception, vitiating effective consent.

Appellant argues that the deception proved here to vitiate the effective consent of the complaining witnesses would have to be characterized as a false promise to perform under Sec. 31.01(2)(E), rather than as a false impression of fact under Sec. 31.-01(2)(A). We find that the misrepresentations made here may be properly characterized either way: as a false impression of fact (that the appellant was selling through the ASCS, and that the policy contained coverage it did not), or as a false promise to perform (that appellant would deliver a policy in some way associated with the ASCS, containing the coverage he described). Since as shown above the evidence was sufficient to show false impressions of fact within the meaning of Y.T.C.A. Penal Code, Sec. 31.01(2)(A), there was no effective consent.

If the false representations of appellant be characterized as promises to perform which he did not intend to perform or knew would not be performed [under V.T.C.A. Penal Code, Sec. 31.01(2)(E)], the evidence is nonetheless sufficient. Appellant argues that he,

“was prevented from delivering the policy because some twelve hours after taking the application of the alleged injured parties for the policy and receiving their check for the same the officers arrested the appellant and took from him the application and the check and prevented him from being able to deliver the policy. The appellant’s intent to perform is shown by the fact that he left a receipt for the check showing that a policy would be delivered if approved by the company and if not approved their money would be refunded.”

The fact that appellant surrendered the check and application to officers serves only to explain why an accident and health insurance policy of some description was never delivered to the complaining witnesses. Likewise, the receipt left by appellant shows only an intent to deliver an insurance policy of some description, and it is some evidence to rebut the Hoffs’ testimony that appellant told them there would be no waiting period for the policy. Neither of these facts is evidence that appellant intended to deliver an insurance policy as promised : special enrollment type, sold through the ASCS, covering 100% of any expenses up to a maximum, with no 60 day surgery benefit waiting period, and with immediate accidental injury coverage.

Appellant points to Sec. 31.01(2)(E), supra, which provides:

“failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.”

Appellant urges that there is no evidence that he did not intend to perform his promises or that he knew they would not be performed other than his failure to perform, which was not his fault.

There are no cases treating this question under the new theft statute. However, we do have cases dealing with this question which arose under Art. 1413, V.A.P.C. Both appellant and the State agree, and we think correctly, that under our former Penal Code appellant would have been prosecuted for theft by false pretext.

“The offense of theft by false pretext is [1] the obtaining of possession of property [2] by a willing surrender of the owner [3] induced to deliver such possession by false pretext or device [4] and with the fraudulent intent of accused, at the time he came into possession of the property, to appropriate it to his own use, [5] followed by such appropriation. Maxwell v. State, 134 Tex.Cr.R. 314, 115 S.W.2d 939.”

Except for the elimination of the element of actual appropriation of the property, see V.T.C.A. Penal Code, Secs. 31.03, 31.01, the offense consisted of essentially the same elements as the theft charged here. It included the element of knowledge on the part of the actor that the pretext was false. Cf. Thornton v. State, 171 Tex.Cr.R. 565, 352 S.W.2d 742. Thus the cases involving theft by false pretext may be relied upon for guidance in reviewing the sufficiency of the evidence to show that the actor knew the statements of fact made by him were false, or that he did not intend to perform the promises made by him or knew that they would not be performed.

In Colaluca v. State, 494 S.W.2d 885, the defendant there sold two watches for $20.00 apiece. Each watch had a tag attached which said “150.00.” The complaining witnesses testified he told them the watches were electric and normally very expensive but that he needed money to return to New York. The defendant testified that the “150.00” tags were simply decoration, that all jewelers used such tags, that he only said the watches were “Kronation Elec-tras,” and that he only said he needed money. The watches were shown to be standard spring wound watches worth only $5 to $7. The evidence was held sufficient to sustain a conviction for theft by false pretext.

In Scott v. State, Tex.Cr.App., 450 S.W.2d 868, the defendant induced a woman to let him check the lightning rods on her house for $400 by telling her that her adult grandson had said she should let defendant. Defendant had been to the grandson’s house and had checked the lightning rods, but he made no such recommendation. The evidence was held sufficient to show theft by false pretext.

In the instant case, there was evidence that appellant falsely represented to the Hoffs that he was selling his policy through the ASCS, a government agency. He falsely represented that the policy was a “special enrollment” policy for farmers and ranchers when in fact anyone could buy it; “special enrollment” is a term prohibited by the State Board of Insurance as misleading. He stated that the American Service Life policy he was selling would have 100% coverage and no waiting periods. As in Colalu-ca, appellant had merchandise to sell, but it was not what he said it was. As in Scott, appellant claimed that he was recommended and backed up by someone who had not so endorsed him. We find the evidence sufficient to show that he knew the delivery of an insurance policy as promised would not be performed. Cf. Bearden v. State, Tex.Cr.App., 487 S.W.2d 739; Kinder v. State, Tex.Cr.App., 477 S.W.2d 584.

Appellant next claims that the evidence was insufficient to prove an intent to deprive as required by V.T.C.A. Penal Code, Sec. 31.03(a). V.T.C.A. Penal Code, Sec. 31.01(3)(A) applies here. It defines “deprive”:

“to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner.”

Appellant points out that the practice commentary to Sec. 31.03, supra, states that a temporary withholding is not such a deprivation as will support a conviction for theft. He then argues that his 12-hour possession of the Hoffs’ check is such a temporary deprivation. Appellant misconstrues the meaning of the theft statute and the practice commentary. Section 31.03, supra, does not require an actual deprivation of property, but only an intent to deprive. The remark in the practice commentary to Sec. 31.03 must be understood in light of the fact that in theft cases the intent to deprive is often proven by an actual deprivation. In such cases, the temporary use of someone’s property, standing alone, would not normally be sufficient proof of an intent to deprive permanently. It does not follow, however, that a deprivation of property that is temporary automatically disproves an intent to deprive permanently or for so long that a major portion of the value or enjoyment of the property is lost to the owner.

Enright v. State, Tex.Cr.App., 513 S.W.2d 581, cited by appellant, held that it was not conversion by bailee for a mechanic to withhold an automobile from its owner for about 40 days pending settlement of a dispute over a release of civil liability for work done on the car. The owner would not sign the release, and the mechanic would not accept payment and turn over the car without it. The Court rested its decision on the State’s failure to show an intent to permanently deprive the owner of the automobile. The Court commented that,

“Though the temporary deprivation was wrongful, it was not such conduct as is prohibited by Article 1429 [V.A.P.C.]. Rather it was a matter of dispute amenable to adjudication in the civil courts. The evidence here is insufficient, upon the whole record, to support a finding of guilt within the meaning of Article 1429, § 1.”

Appellant urges that the present appeal presents a simple civil dispute and not a case of theft, and he urges that the rationale of Enright be applied. In Enright the evidence clearly showed that the mechanic intended only to hold the car until he received the release of liability. This was not an intent to deprive permanently, even though the mechanic had no right to hold the automobile. In the instant case the evidence, looking to the whole record as in Enright, shows an intent to deprive permanently. Appellant did not take the stand, nor did he offer any evidence at the guilt stage of the trial. Mr. and Mrs. Hoff testified that appellant took from them an application for an accident and health insurance policy with American Service Life Insurance Company and a check for $251.30 in payment therefor. There was no evidence and no contention by appellant that the transaction was made in jest or that the money was borrowed. On the contrary, the uncontradicted evidence shows that appellant took the money to pay for the insurance policy he sold the Hoffs, and there is no evidence that he had any intention to return the check voluntarily. Cf. Daley v. State, Tex.Cr.App., 491 S.W.2d 932; Scott v. State, supra; Reeves v. State, Tex.Cr.App., 428 S.W.2d 320; Dennis v. State, Tex.Cr.App., 420 S.W.2d 940; Hilliard v. State, Tex.Cr.App., 401 S.W.2d 814, cert. denied 385 U.S. 941, 87 S.Ct. 310, 17 L.Ed.2d 220.

Appellant cites Y.A.T.S., Insurance Code, Art. 3.70-2(A)(8), providing an insurance company is required to allow an applicant ten days to return the policy and receive a full refund of money for any reason whatsoever.

The only element of the offense which appellant seems to suggest is negated by the ten-day return statute is the intent to deprive permanently or for so long that a major portion of the value of the property is lost to the owner. Appellant’s brief states that,

“had he been let alone the company would have issued a policy which the parties could have accepted or refused and got their money back with no damage done to anyone.”

It does not negate intent to deprive to say that the Hoffs could have gotten their money back. As the State points out, the offense of theft has long been held to be complete when the property is obtained, if the other elements are present. See cases collated under 5 Branch’s Annotated Penal Code Supp., Sec. 2678.

Section 31.03, supra, makes the offense of theft complete upon a showing that appellant exercised control over the property by means of knowing false statements of fact or knowing false promises with intent to deprive the owners of the property permanently or for so long that a major portion of the value or the enjoyment of it is lost to them. Appellant completed the offense of theft when he obtained the cheek if he intended at that time to keep the check. The undisputed evidence shows that he did. The fact that a state statute requires the insurance company to return the Hoffs’ money if they discover his deception within ten days of receipt of the policy in no way bears on the nature of appellant’s intent. We hold the evidence to be sufficient to show the necessary intent to deprive and conclude that the evidence was sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.

      . While no question is raised in this appeal regarding same, Chudleigh v. State, Tex.Cr. App., — S.W.2d — (1976) held that punishment of ten years probated plus a fine is not violative of Art. 42.12, V.A.C.C.P.

      . Effective September 1, 1975, Secs. 31.03(a) and (b), and Sec. 31.01(5) were amended to speak in terms of “appropriation.” The instant offense was committed September 4, 1974 and the law applicable is that effective January 1, 1974. See note under V.T.C.A. Penal Code, Sec. 1.07.

      . Id.

      . The following is a reduced copy of a 15‘A inch by 22 inch “pitch sheet” admitted into evidence as State’s Exhibit No. 1:

      . Mrs. Hoff testified that she could not remember whether the markings were on the “pitch sheet” at the time appellant sold the policy to her and her husband.


source: Caselaw Access Project

author: DIES, Chief Justice.

license: Public Domain

text:
    REPUBLIC INSURANCE COMPANY, Appellant, v. Jimmy C. LUNA et al., Appellees.
    No. 7681.
    Court of Civil Appeals of Texas, Beaumont.
    March 27, 1975.
    Rehearing Denied April 17, 1975.

      Harlan Harper, Jr., Dallas, for appellant.
    Geary, Brice, Barron & Stahl, Dallas, for appellees.
   DIES, Chief Justice.

Appellant, Republic Insurance Company, issued an automobile liability policy to Jimmy C. Luna which provided coverage to him and his family while driving a non-owned vehicle if the permission of the owner was obtained or if the family member driving the non-owned vehicle reasonably believed that he had the permission of the owner of the automobile.

His son, Larry A. Luna, was driving a non-owned automobile when involved in a collision in January 1973.

Republic filed a declaratory judgment action seeking to be excused from defending Luna on the ground Luna did not have permission, nor could he reasonably believe he had permission from the owner to drive the car involved.

Trial was to a jury which answered in the negative to the following issue:

“Do you find from a preponderance of the evidence that when the collision in question occurred on or about January 14, 1973, Defendant Larry Luna did not reasonably believe that he was driving the vehicle in question with the permission of the owner, as that term is defined in this Charge?”

The court defined “owner” as “the party in whose name the Certificate of Title exists.”

From a judgment contrary to the relief sought Republic brings this appeal contending in six points of error that the evidence was uncontroverted, that appellee Luna was not in compliance with the policy, and that the Jury’s answer is not supported by evidence, or is contrary to the overwhelming weight and preponderance of the evidence.

The evidence is really not in material dispute. Edward Stacha, the certificate title owner, bought the automobile involved when his son, Edward Angus, graduated from high school as a graduation present for the boy to use. Edward Angus took it to college. While Stacha, senior, had advised his son not to allow anyone else to drive the automobile, the Luna boy had driven the automobile previous to the collision, and at those times, as well as the incident of the collision, with permission of young Stacha. Young Stacha had the sole management and control of the car at college and needed no parental permission before using it. Luna had no express permission from Stacha, senior, to use the car at the subject time, but he (Luna) thought it belonged to young Stacha.

The policy in question does not define “owner.” This term has been stated to have no legal definition and may be synonymous with “holder” or “possessor.” 73 C.J.S. Property § 13a (1951). See also American Indemnity v. Davis, 260 F.2d 440 (5th Cir. 1958); Powell v. Home Indemnity Company, 343 F.2d 856 (8th Cir. 1965); Phillips v. Government Employees Insurance Company, 258 F.Supp. 114 (E.D.Tenn.1966). See also Realty Trust Co. v. Chaddock, 131 Tex. 88, 112 S.W.2d 440 (1938).

An insurance contract as this one requiring “permission of the owner” has been interpreted to include implied consent. See Travelers Indemnity v. Employers Casualty Co., 474 S.W.2d 501 (Tex.Civ.App.—Waco 1971, no writ), which may be inferred from a course of conduct or relationship. Royal Indemnity Company v. H. E. Abbott & Sons, Inc., 399 S.W.2d 343 (Tex.1966).

By putting the car at the unfettered use of the son, Stacha, senior, certainly created a situation where its use by Luna would be in the reasonable belief he had permission of the owner, whether he (Luna) believed Stacha, senior, or his son to be the owner. To hold otherwise would establish an unrealistic requirement that before a person’s own insurance would extend to a non-owned automobile, he would have to examine the certificate of title of the non-owned car before using it.

All points of error are overruled.

The judgment of the trial court is AFFIRMED.


author: EVANS, Justice.

text:
    COMMERCE SAVINGS ASSOCIATION OF BRAZORIA COUNTY, Appellant, v. GGE MANAGEMENT CO. et al., Appellees.
    No. 16536.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 13, 1976.
    Rehearing Denied July 1, 1976.

      Don Stocking, Kronzer, Abraham & Watkins, W. James Kronzer, Houston, M. K. Woodward, Austin, for appellant.
    J. Eugene Clements, Walter T. Weather, Jr., Houston, for appellees Gilbert Gertner and GGE Management Co.; Sewell, Junell & Riggs, Houston, of counsel.
    Emory T. Carl, Howard C. Lee, Jr., Houston, for appellee Richard B. Merrill, Jr.; Carl, Lee & Fisher, Houston, of counsel.
    Conway F. Jordan, Jr., Gary L. Leech, Houston, Strasburger, Price, Kelton, Martin & Unis, Royal H. Brin, Jr., Dallas, for ap-pellee J. B. Westmoreland.
   ON THIRD MOTIONS FOR REHEARING

EVANS, Justice.

A usury case.

After consideration of all parties’ motions for rehearing, we withdraw our earlier opinions and substitute this opinion in lieu thereof.

Gilbert Gertner, individually and as president of GGE Management Company, executed a promissory note to Angleton Savings Association dated April 17,1970, in the principal amount of $600,000.00. This note provided for interest at the rate of 12% per annum over a 10 year period and recited that the principal amount of the note represented (i) the purchase price of certain real property conveyed by the payee to GGE Management Company, and (ii) funds to be advanced by the payee to the makers from time to time for construction of certain improvements.

The underlying purpose of this loan was to provide financing for certain improved property known as Riverside Terrace Apartments in Houston, Texas, owned by appellee, Richard B. Merrill, Jr. In an effort to resolve financial problems concerning this property, appellee, J. B. Westmore-land, a business associate of Merrill, approached Gertner with a plan to refinance the property and place it in a joint enterprise or partnership composed of Gertner, Westmoreland and Merrill. Angleton Savings Association was contacted on behalf of Westmoreland to work out the terms of the financing arrangement. As the transaction was finally structured Merrill conveyed the property to Angleton Savings Association for the sum of $349,000.00 and Angleton Savings Association in turn conveyed to GGE Management Company for a purchase price of $400,000.00. This resulted in an immediate front-end profit to Angleton Savings Association of $51,000.00. Contemporaneously with these conveyances Gert-ner and GGE Management Company executed the $600,000.00 promissory note and deed of trust and security agreement covering the property, the personalty thereon and assigning rents accruing from the apartment project.

Also contemporaneously with the execution of the note, Gertner and Angleton Savings Association executed a letter agreement restricting Gertner’s personal liability “in case of default or foreclosure” to such loss as might be realized by Angleton Savings Association with respect to stated percentages of the unpaid principal balance at time of foreclosure. Merrill and Westmore-land also executed contemporaneous agreements guaranteeing payment of the corporate debtor’s obligation to the association “to the extent of Six Hundred Thousand and No/100 ($600,000.00) Dollars or the remaining balance” due under the note.

On August 25, 1972, Gertner individually and as president of GGE Management Company and Angleton Savings Association executed an instrument entitled “Modification and Extension Agreement” which provided that the principal amount of the $600,000.00 note was reduced from $600,000.00 to $539,-226.28, that the interest rate was reduced from 12% to 8.5%, that the final maturity date was extended from August 17, 1980 to September 17, 1996, and that the monthly installments were reduced from $6,607.00 to $4,475.78.

In December 1973 the name of Angleton Savings Association was changed to Commerce Savings Association of Brazoria County and the association will be hereinafter referred to as “Commerce”. On February 22, 1974, Commerce brought this suit on the $600,000.00 note as modified by the August 25, 1972 agreement, seeking recovery against Gertner, GGE Management Company, Westmoreland and Merrill, jointly and severally, for the sum of $528,878.98 with interest thereon from November 17, 1973, and for foreclosure of the liens and security interest. Gertner, GGE Management Company and Westmoreland filed verified answers asserting that the loan transaction was usurious. Merrill’s answer asserted that he had been released from liability by reason of Gertner’s limitation of liability letter and because the modification and extension agreement had been made without his knowledge or consent. By cross-action Merrill asserted a right of indemnification against Westmoreland.

On August 21, 1974, Gertner and GGE Management Company filed a counterclaim against Commerce Savings Association asserting that the note was usurious on its face because it required Gertner, an individual, to pay interest at the rate of 12% per annum; that the loan transaction was a device or scheme to avoid the effect of the usury law and the $51,000.00 profit realized by Commerce was actually interest; that in further violation of the usury laws, Gertner and GGE Management Company had been compelled to pay a fee of $21,-000.00 for brokered certificates of deposit so that they could meet the requirements of Commerce that they place a $600,000.00 compensating balance to its account, and that such fee also constituted interest; that similarly Gertner and GGE Management Company had been compelled to pay a fee of $5,912.50 for brokered certificates of deposit in the amount of $200,000.00 which had been required by Commerce to be placed on deposit at Angleton Bank of Commerce to benefit certain officers and shareholders of Commerce in their efforts to acquire control of Angleton Savings Association. In this pleading Gertner and GGE Management Company sought to recover penalty interest in the total amount of $292,242.06 together with attorney’s fees and exemplary damages. In a subsequent counter-claim the penalty interest sought to be recovered was substantially increased and other items of recovery asserted.

The jury found: (1) that the unpaid principal balance of the note was $528,878.98; (2) that Commerce had required a real estate profit to itself of $51,000.00 as a condition to making the loan; (3) that such profit was interest, and (4) that the conveyancing transaction upon which such profit was based was a disguise to evade the usury statute. The jury further found: (5) that Commerce had required the borrowers to place a $600,000.00 compensating balance in its accounts as a condition to making the loan; (6) that such deposit was a benefit to Commerce; and (7) that it was the common expectation of the parties that the borrowers would fulfill the requirement of depositing such compensating balance by purchase of brokered certificates of deposit; and (8) that the borrowers paid the sum of $21,-000.00 in order to place the $600,000.00 compensating balance in Commerce’s account. The jury found (9) that said sum of $21,-000.00 was interest, but (10) failed to find that the requirement of placing the $600,-000.00 in compensating balance was a disguise to evade the usury statute. The jury also found (11) that Commerce had directed the borrowers to place a $200,000.00 compensating balance in accounts at the Angle-ton Bank of Commerce; (12) that such requirement was a condition to the making of the loan; (13) that said $200,000.00 compensating balance was deposited by the borrowers and (14) that it was the common expectation of the parties that such deposit would be fulfilled by the purchase of brokered certificates of deposit. The jury further found; (15) that the borrowers paid the sum of $5,912.50 to place said $200,-000.00 compensating balance; (16) that such sum constituted interest and (17) that the requirement of placing the $200,000.00 compensating balance was a disguise to evade the usury statute and (18) benefited Commerce. The jury further found that Commerce had wilfully converted the cost of placing the $200,000.00 compensating balance in Angleton Bank of Commerce, which cost it ascertained to have a fair market value of $5,912.50, and that Commerce had falsely represented to the borrowers that the requirement of such deposit was “proper and lawful.” Based upon the issues of conversion the jury also awarded Gertner and GGE Management Company the sum of $277,713.65 as exemplary damages.

In a subsequent set of issues the jury failed to find that it was the intention of Gertner and GGE Management Company to compromise and release their claims for usury by signing the modification and extension agreement dated August 25, 1972. The jury also found that such agreement was executed without the knowledge and consent of Merrill.

The trial court’s judgment denied Commerce Savings Association judicial foreclosure under the deed of trust and security agreements and decreed that Commerce take nothing as to any of the defendants. The trial court found as an affirmative fact and as a matter of law that the contracts sued upon were usurious and that Gertner was a guarantor and not a co-maker of the note. It awarded Gertner and GGE Management Company penalty interest in the amount of $569,010.26; declared GGE Management Company to be the legal owner of the Riverside Terrace Apartments property and cancelled the deed of trust; awarded GGE Management Company the sum of $71,121.02, being the aggregate amount of the principal payments made on the note in the sum of $71,121.02, and also the sum of $48,238.60, representing the amount on deposit in its savings account at Commerce. It further awarded GGE Management Company the sum of $5,912.50, as actual damages for conversion of the cost of the $200,-000.00 certificates of deposit placed with Angleton Bank of Commerce, but refused to award exemplary damages as found by the jury. It awarded Westmoreland the sum of $45,758.92, representing the amount on deposit in his savings account at Commerce and also awarded other relief between the parties, including attorney’s fees. Commerce has brought this appeal.

We first consider the contention of Commerce that the claims of Gertner and GGE Management Company were not timely asserted and that such claims are barred by the statutes of limitation.

Article 5069-1.06(3), Tex.Rev.Civ.Stat. Ann., provides in part:

“. . . All such actions brought under this Article shall be brought in any court of this State having jurisdiction thereof within four years from the date when the usurious charge was received or collected . . . ”

Commerce did not plead the time provision of this article as an affirmative defense, nor did it plead any of the general statutes of limitation. After it rested it sought to file a trial amendment affirmatively pleading such defenses but the trial court denied leave to file. It is the position of Commerce that Article 5069-1.06(3) creates a condition precedent to the maintenance of an action for usury and that it was incumbent upon Gertner and GGE Management Company to prove compliance with such condition, notwithstanding its failure to affirmatively plead that statute, or the general statutes of limitation, as a defense. It also contends that the trial court abused its discretion in refusing to grant it leave to file its trial amendment asserting such defense.

We are of the opinion that the original answer of Gertner and GGE Management Company affirmatively raised their claim that the transaction was usurious. Thus it becomes unnecessary for us to consider the other assertions advanced by Commerce. In a separately numbered paragraph of their original answer Gertner and GGE Management Company plead:

II.
“Defendants plead plaintiff’s usury as an affirmative defense and will, upon development of further facts, plead their right to recover forfeiture of all principal balance due plaintiff, return of all payments made of principal and twice the amount of interest charged directly and indirectly by plaintiff and its co-parties and co-conspirators, reasonable attorneys’ fees which are set for convenience at the level requested by plaintiff’s counsel herein, i. e., $52,887.89, interest on all unlawful payments made by defendants from the date such payments were received by plaintiff, their costs of court, and any other sums to which defendants are entitled.”

In their prayer contained in this answer Gertner and GGE Management Company sought judgment “for the affirmative relief briefly described herein which will be more fully described in Plaintiff’s counterclaim .” This pleading contained Gert-ner’s verification, individually and on behalf of GGE Management Company that the contract sued upon was usurious on its face and upon his personal knowledge.

In the absence of special exceptions this pleading adequately set forth a verified claim for affirmative relief based upon the ground that the loan transaction was usurious. See McDonald, Texas Civil Practice, Vol. 2, Sec. 7.52, pp. 298-299; Wall v. East Texas Teachers Credit Union, 526 S.W.2d 148, 151 (Tex.Civ.App.—Texarkana 1975, reversed on other grounds, Tex., 533 S.W.2d 918). The prayer contained in this pleading clearly indicated the pleader’s intent to assert usury as a basis for affirmative relief and not merely as a matter of defense. See McDonald, Texas Civil Practice, Vol. 2, Sec. 7.52, p. 300; Thompson v. Gaither, 45 S.W.2d 1106 (Tex.Civ.App.—Texarkana 1932, writ ref’d). It did not merely assert an intent on the part of the defendants to file a cross-action or counterclaim at some time in the future, as was the case in Swaim v. International Harvester Co., 505 S.W.2d 634 (Tex.Civ.App.—Ft. Worth 1974, writ ref’d n. r. e.). It set forth a sufficient basis, in the absence of special exceptions, for the court to grant the affirmative relief prayed for under the usury statutes, and in the formal counterclaim later filed, such allegations were merely expanded as to detail and scope. Thus we hold that the claim of Gertner and GGE Management Company for affirmative relief under the usury statutes was timely filed. See Delley v. Unknown Stockholders of The Brotherly and Sisterly Club of Christ, Inc., 509 S.W.2d 709 (Tex.Civ.App.—Tyler, 1974, writ ref’d n. r. e.).

On the merits, we first consider the contention of the borrowers that the loan transaction was usurious on its face in that the note was executed by Gertner in his individual capacity.

It is the lender’s position that notwithstanding the fact that the face of the note shows Gertner to be a co-maker, the contemporaneous letter agreement limiting his liability, when considered with the savings clause contained in the deed of trust, restricted Gertner’s liability to that of a guarantor, as found by the trial court. The borrowers on the other hand argue that the limitation of liability agreement was contingent upon default and that Gertner, as a co-maker, was required to pay and did pay usurious interest on the note in order to avoid default.

In their motions for rehearing the borrowers contend that under the recent holding of the Texas Supreme Court in Universal Metals & Machinery, Inc. v. Bohart et ux, 539 S.W.2d 874 (1976), Gertner should be considered a primary obligor rather than a mere guarantor for the maker. In that case it was held that certain individuals who had unconditionally guaranteed payment of the principal and interest of the corporation’s note and had expressly waived “any requirement that the holder exhaust any right or take any action against the maker” became, as recited in the note, primary obligors and thus were entitled to assert usury as a defense.

In the instant case the face of the note does reflect Gertner as a co-maker. However the contemporaneously executed limitation of liability agreement expressly provides that Gertner would be held personally liable on the note “only in case of default or foreclosure for any loss realized” by the lender with respect to the principal balance of the note “at foreclosure.” This limitation of liability agreement specifically restricted Gertner’s obligation to pay specified percentages of the unpaid principal balance insofar as the lender might sustain loss with respect thereto at the time of foreclosure. The limitation of liability agreement was executed contemporaneously with the note and is a part of the same loan transaction. At least as between the initial parties thereto its limiting terms must be given effect. Texas State Bank of Austin v. Sharp, 506 S.W.2d 761, 763 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.); Tex.Bus. & Com.Code Ann. Sec. 3.119; Dorfman v. Smith, 517 S.W.2d 562 (Tex.Civ.App.—Houston [1st] 1974, no writ). Since Gertner’s liability under the loan transaction was only with respect to the payment of certain amounts of the unpaid principal on the note, the transaction as to him was not usurious. Crow v. Home Savings Association of Dallas County, 522 S.W.2d 457 (Tex.1975). Neither do we believe that Merrill and Westmoreland may be deemed primary obligors within the meaning of the Bohart decision.

While their agreement did guarantee payment, as distinguished from collection, the terms of such agreement expressly limited the extent of their liability to the sum of $600,000.00 or “the remaining balance” due under the note and deed of trust. The agreement guaranteed:

“. . . the full and prompt payment to the Association at maturity, and at all times thereafter, and also at the time hereinafter provided, of the indebtedness, liabilities and obligations of said Debtor to the Association to the extent of:
SIX HUNDRED THOUSAND AND NO/100 ($600,000.00) DOLLARS or the remaining balance on one certain note and deed of trust . . . ”

The question is whether the agreement constituted a guaranty of payment of interest accruing under the note or whether it guaranteed only the amount of the principal obligation from time to time remaining unpaid. See 38 Am.Jur.2d, Guaranty, § 76, p. 1081; 38 C.J.S. Guaranty § 57, pp. 1212-1213. Where, as here, uncertainty exists as to the meaning of a guaranty contract, its terms should ordinarily be given a construction which is most favorable to the guarantor. The guarantor’s obligation should not be extended by implication beyond the written terms of the agreement. Southwest Savings Association v. Dunagan, 392 S.W.2d 761, 766-67 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.); Empire Steel Corp. of Texas v. Omni Steel Corp., 378 S.W.2d 905, 911 (Tex.Civ.App.—Ft. Worth 1964, writ ref’d n. r. e.). While the agreement in question guarantees payment of the “indebtedness, liabilities and obligations” of the debtor, it expressly provides that the guarantor’s liability shall only be “to the extent of” the original amount of the principal obligation or the “remaining balance” due “at maturity.” The guaranty agreement of Merrill and Westmoreland should, in our opinion, be construed as a guarantee of payment of the unpaid principal due on the note at time of maturity. See F. Vogelsang & Bro. v. G. H. Mensing & Bro., 1 White & W.Civ.Cas.Ct. App., § 1165 (1881); North American Life Ins. Co. v. Remedial Finance Corp., 178 Okl. 248, 62 P.2d 491, 493 (1936). Thus, we hold that Merrill and Westmoreland are liable only for interest on the principal balance remaining unpaid on the note at the legal rate from and after the date of default. Article 5069-1.03, Tex.Rev.Civ.Stat.Ann. The guaranty agreement does provide that Merrill and Westmoreland guarantee payment of attorney’s fees incurred in the collection of the debt and we, therefore, hold that their liability extends to the stipulated amount of attorney’s fees.

We next consider the contentions of the lender, Commerce, that the $51,000.00 real estate profit was, as a matter of law not interest and that the jury’s findings that such profit was interest and that the transaction was a disguise to evade the usury statute are against the great weight and preponderance of the evidence.

Commerce concedes that the loan transaction “as carried out gives the appearance of a $51,000.00 ‘front end profit.’ ” However, it argues that such “profit” was paid entirely from the loan proceeds and was to be realized in full only if the loan should be paid in full. It further argues that it acted upon advice of counsel and in good faith in the loan transaction, and that even if the $51,000.00 profit is held to constitute interest, no penalty for usurious interest should be imposed.

It was not contended that the conveyancing scheme was other than for the purpose of effectuating the loan arrangement. The evidence negates any intent on the part of Commerce to purchase and hold the property and, on the contrary, the evidence supports the view that Commerce acted solely as a lender and not as a real estate purchaser. Indeed, Commerce itself carried the $51,000.00 item on its books as an “unearned loan fee.” In connection with its deliberation on whether the $51,000.00 profit constituted interest, the jury was instructed that the term “interest” should not include “any time price differential however denominated arising out of a credit sale.” The term “time price differential” was defined as the difference in price quoted by a willing seller to a willing buyer for a sale for cash as contrasted to a sale on credit. No complaint was asserted with respect to the submission of this charge.

Whether the sum of $51,000.00 transferred to Commerce represented a bona fide real estate “profit” or merely constituted an additional charge for the loan of money was a question for the jury which it determined contrary to the position of Commerce. Neither the form of the transaction nor the fact that the money was paid from loan proceeds precluded a finding that such sum was an additional loan charge exacted by Commerce. F. B. & D., Inc. v. Nathan Alterman Electric Co., 394 S.W.2d 821 (Tex.Civ.App.—San Antonio, 1965, writ ref’d n. r. e.). The jury found that such profit constituted interest and that the transaction was a disguise to evade the usury statute. Upon these findings, which we hold to have support in the evidence and are not against the great weight and preponderance of the evidence, the trial court properly determined the real estate “profit” to be an additional charge for the loan. Fisher v. Hoover, 3 Tex.Civ.App. 81, 21 S.W. 930 (1893, no writ); Burkitt v. McDonald, 26 Tex.Civ.App. 426, 64 S.W. 694 (1901, no writ); Woodman v. Bishop, 203 S.W.2d 977 (Tex.Civ.App.—San Antonio, 1947, no writ. In view of the jury’s finding that such profit resulted from a scheme to evade the usury statute it matters not that Commerce may have acted on advice of counsel. Johns v. Jaeb, 518 S.W.2d 857 (Tex.Civ.App.—Dallas 1974, no writ).

It is further the argument of Commerce that the restoration of the $51,000.00 charge under the provisions of the modification and extension agreement removed any taint of usury. The testimony of Gertner supports the jury finding that neither he nor GGE Management Company intended by execution of the agreement to compromise and release claims for usury. There was also evidence that supports the jury’s findings that the agreement was executed without the knowledge or consent of Merrill. The findings of the jury with respect to the modification and extension agreement are not against the great weight and preponderance of the evidence and the trial court properly concluded upon such findings that any previously made usurious charges or payments were not purged by execution of this agreement. Commerce Trust Company v. Ramp, 135 Tex. 84, 138 S.W.2d 531, 535 (1940).

We next consider the question of whether the brokerage fees which the borrowers were required to pay for the purchase of brokered certificates of deposit constituted additional loan charges.

While the jury found that it was the common expectation of the parties that the requirement of compensating balances would be fulfilled by the purchase of brokered certificates of deposit, the loan documents did not expressly require such deposits, and there is no evidence that Commerce participated in the negotiation of such fees, in the selection of the brokerage agents, or in the handling of such fees with the brokerage agents. The compensating balances were not supplied from the borrowers’ own deposits and were obtained through the brokerage of certificates of deposit owned by third parties. The evidence does not indicate that Commerce collected any brokerage fees as a part of the loan transaction, and the negotiation and payment of such fees was handled independently by the borrowers.

It has been held that a payment of bona fide fees to third parties for service actually rendered to the parties to a loan does not constitute interest, even though paid to the lender’s special agent, if the agent has only limited or special authority and the lender does not participate in the funds so paid. Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046 (1937). In the case at bar, the fees for the certificates of deposit were paid directly by the borrowers to third party brokers and Commerce never received any part of such fees. The compensating balance deposits created separate and independent debts between the depositors (who were not the borrowers) and the associations in which such deposits were respectively placed. As distinguished from Terry v. Teachworth, 431 S.W.2d 918, 924 (Tex.Civ.App.—Houston [14th], 1968, writ ref’d n. r. e.), and cases cited therein, the brokerage fees for such deposits were not charged or collected by the lender as loan costs. Thus, Article 852a, Sec. 5.07, Tex.Rev.Civ. Stat.Ann., the Texas Savings & Loan Act, which authorizes savings and loan associations to require its borrowers to pay “reasonable expenses” incurred in connection with the “making” of real estate loans, would not appear to be applicable to these charges. Under the circumstances presented by the evidence it was for the jury to determine the bona fides of the requirement by Commerce that such compensating balances be deposited. See Morris v. Miglicco, 468 S.W.2d 517 (Tex.Civ.App.—Houston [14th], 1971, writ, ref’d n. r. e.); Greever v. Persky, 140 Tex. 64, 165 S.W.2d 709, 712 (1942).

The jury failed to find that the requirement of the $600,000.00 deposit was a subterfuge to evade the usury statute. The cost of such deposit cannot, therefore, be deemed a usurious charge of interest. See Great Southern Life Ins. Co. v. Williams, 135 S.W.2d 241 (Tex.Civ.App.—Amarillo, 1939, writ dism’d, judgment correct); Dewey v. American National Bank, 382 S.W.2d 524 (Tex.Civ.App.—Amarillo, 1964, writ ref’d n. r. e.); Greever v. Persky, supra; Sapphire Homes, Inc. v. Gilbert, 426 S.W.2d 278 (Tex.Civ.App.—Dallas, 1968, writ ref’d n. r. e.); Crow v. Home Savings Association of Dallas County, 522 S.W.2d 457, 459 (Tex.1975). The jury’s separate finding that such cost did constitute interest must be disregarded since, as stated above, it was not a cost charged or collected by Commerce.

The jury did find that the requirement of the $200,000.00 compensating balance deposited with Angleton Bank of Commerce constituted a disguise to evade the usury statute, and that such deposit benefited Commerce. It also found that this deposit was actually made and that its cost constituted interest. If the findings of the jury in each of these issues have evidentiary support and are not against the great weight and preponderance of the evidence, the trial court correctly determined the brokerage cost to constitute additional interest. Mays v. Pierce, 154 Tex. 487, 281 S.W.2d 79 (1955).

There was some evidence from which the jury could have concluded that the $200,-000.00 deposit was placed with Angleton Bank of Commerce and that the $5,912.50 brokerage fee for such deposit was paid by the borrowers. There was also some testimony that the deposit was of some incidental benefit to Commerce in that it improved the association’s good will in the community and its relationship with the bank with which such deposit was made. However, the undisputed evidence reflects that the underlying purpose of the deposit was to satisfy a requirement of Angleton Bank of Commerce that certain individuals who became officers of Commerce, and who were seeking to acquire the controlling stock of Angleton Savings Association, maintain certain levels of account balances with An-gleton Bank of Commerce. The testimony clearly established that there were no pending transactions between Commerce and Angleton Bank of Commerce which would have involved the brokered certificates of deposit and there was no evidence that Commerce had participated in or ratified the acts of the “control group” of individuals. There is, therefore, no evidence that the deposit benefited Commerce and the jury’s finding to such effect and that the cost thereof constituted interest are without evidentiary support. For the same reason the jury’s findings that Commerce wil-fully converted the cost of such compensating balance must be disregarded. Since we have held that these findings are not supported by legally sufficient evidence, the trial court erred in concluding that the fees for such brokered certificates of deposit constituted additional loan charges and in assessing such costs as damages for conversion.

In view of our holding that the $51,000.00 “profit” constituted an additional loan charge exacted by Commerce, we must determine whether this charge, when added to other items of interest received and collected by Commerce, exceeds the statutory maximum. Commerce contends that in making this computation the $51,000.00 charge should be apportioned or “spread over” the entire ten year term of the loan. It directs our attention to the “savings clause” in the deed of trust which provides:

“12. INTEREST TO COMPLY WITH THE LAWS OF THE STATE OF TEXAS. In the event any item, items, terms or provisions contained in this are in conflict with the laws of the State of Texas this instrument shall be affected only as to its application to such item, items, terms or provisions, and shall in all other respects remain in full force and effect. It is understood and agreed that in no event and upon no contingency shall the maker or makers of the note secured hereby, or any party liable thereon or therefor, be required to pay interest in excess of the rate allowed by the laws of the State of Texas. The intention of the parties being to conform strictly to the Usury Laws now in force, and any of said contracts for interest shall be held to be subject to reduction to the amount allowed under said Usury Laws as now or hereafter construed by the courts having jurisdiction.”

The question of spreading of “front end” loan charges has been a matter of continuing concern and speculation. Riverdrive Mall, Inc. v. Larwin Mortgage Investors, 515 S.W.2d 5 (Tex.Civ.App.—San Antonio, 1974, writ ref’d n. r. e.); Southwestern Investment Co. v. Hockley County Seed and Delinting, Inc., 511 S.W.2d 724, 733 [Tex.Civ.App.—Amarillo, writ ref’d n. r. e., per curiam 516 S.W.2d 136 (Tex.1974)]; 12 Houston Law Review 159 (1974); 49 Texas Law Review 419 (1971). In our original opinion we recognized that the concept of “spreading” had, under certain circumstances, been applied by the courts of this State. See Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046 (1937); Imperial Corp. of America v. Frenchman’s Creek Corp., 453 F.2d 1338 (5th Cir. 1972); Walker v. Temple Trust Co., 124 Tex. 575, 80 S.W.2d 935 (1935). We held, however, on the rationale of such cases as Southwestern Investment Co. v. Hockley County Seed and Delinting, Inc., supra, and Terry v. Teachworth, 431 S.W.2d 918 (Tex.Civ.App.—Houston [14th], 1968, writ ref’d n. r. e.), that spreading was not available to Commerce since the jury had found that the conveyancing transaction was merely a subterfuge to evade the usury statute. We note that the legislature has by amendment to Article 5069-1.07, Tex.Rev.Civ.Stat.Ann., effective September 1, 1975, provided that in determining whether interest rates of real estate loans are usurious, the interest contracted for, charged or received from the borrower shall be spread over the full term of the loan, or if the loan is paid in full prior to the end of the term, the lender may avoid the penalty of usury by crediting or refunding any excess interest so contracted for, charged or received. This statute operates prospectively and does not govern the loan transaction under consideration here.

We have decided, on rehearing, that the savings provision contained in the deed of trust should, under the facts of this case, be applied to the $51,000.00 loan charge. Considering all the loan documents together, and giving effect to the stated purpose of the parties in the savings clause, we believe there is justification for apportioning this charge over the effective period of the loan.

We then must determine whether the allocation of this charge results in usurious charge of interest by Commerce in violation of the usury statute. Since the loan was prematurely terminated by the borrowers’ default and since the loan documents do not, on their face, evidence a usurious contract it is our opinion that in making this determination, we should consider the loan charges actually charged or received by Commerce during the period of time the loan remained in effect. The loan documents indicate that the loan was initially funded on April 20, 1970, with an advancement to the loan account of the sum of $325,000.00. However, since the sum of $51,000.00 was contemporaneously returned to Commerce at the time the loan was funded, the amount which was actually advanced to the borrowers’ account was in the sum of $274,000.00. See Nevels v. Harris, supra; Adleson v. B. F. Dittmar Co., 124 Tex. 564, 80 S.W.2d 939, 940 (1935); 91 C.J.S. Usury § 35, p. 615. The documentary exhibits also indicate that the $51,000.00 charge was “restored” by a credit against principal made on August 31, 1972, pursuant to provisions of the modification and extension agreement. Thus, we believe it appropriate, under the circumstances of this case, to allocate the $51,000.00 loan charge over the period beginning April 20, 1970, and ending August 30, 1972.

Allocating the $51,000.00 loan charge to the interest payments received by Commerce during this period of time and adding thereto the interest payments thereafter received by Commerce to the date of default we determine that the total charges received by Commerce during said period of time were well within the maximum corporate rate permitted by Article 1302, Section 2.09, Tex.Rev.Civ.Stat.Ann. According to our computations based upon the documentary exhibits, the total amount of such charges received by Commerce during such period of time, including the allocated sums attributable to the $51,000.00 charge, was approximately two-thirds of the total amount which Commerce could lawfully have charged had it contracted for interest at the maximum rate permitted by law.

In making this determination we have been mindful of the contention advanced that Article 1302, Section 2.09, Tex.Rev.Civ.Stat.Ann., requires each month during a given loan period to be considered as a separate and distinct time interval for the purpose of computation and that any monthly payment which exceeds the maximum corporate rate of 1½% per month should be considered usurious. While such a basis for computation may be appropriate in a given case, as, for example, where the lender exacts a specified amount of monthly unearned interest in excess of the maximum monthly rate, we do not believe it can be fairly applied to the circumstances of this transaction. The documentary exhibits reflect that during the period of time in question, payments were made by the borrowers in varying amounts and upon sporadic occasions and it does not appear that the lender required that such payments be made in such manner and amounts. In our opinion, it would be manifestly unfair and beyond the obvious intent of the legislature in the enactment of the usury statute, to impose the severe penalties afforded by Article 5069-1.06, Tex.Rev.Civ.Stat.Ann., solely upon proof that one monthly payment exceeded the statutory limit, where over the effective period of the loan, payments did not, in the aggregate, exceed the amount authorized by law. Such an arbitrary basis of computation would, in our opinion, permit a borrower, unilaterally, to establish a usurious charge, where no such charge had been exacted or required by the lender.

In view of our determination that the total loan charges received by Commerce during the effective period of the loan did not exceed the maximum permitted by statute, and since the loan documents did not, on their face, reflect a usurious contract, the judgment of the trial court will be reversed and rendered insofar as it is based upon a determination that the loan transaction was usurious.

We next consider the contention of Richard B. Merrill, Jr. that the execution of the modification agreement without his knowledge or consent released his obligations under the guaranty agreement. See McKnight v. Virginia Mirror Co., 463 S.W.2d 428 (Tex.1971); Straus-Frank Co. v. Hughes, 138 Tex. 50, 156 S.W.2d 519 (1941). While Commerce does not deny that the terms of the modification agreement materially altered the contractual relationship between the parties, it contends that Merrill and Westmoreland gave advance consent to such alteration under the terms of their guaranty contract. They direct our attention to the provision in the guaranty agreement which provides:

“Authority and consent are hereby expressly given said Association from time to time, and without any notice to the undersigned, to give and make such extensions, renewals, indulgences, settlements and compromises as it may deem proper with respect to any of the indebtedness, liabilities and obligations covered by this guaranty, including the taking or releasing of security and surrendering of documents.”

We agree with Commerce that the quoted provisions in the guaranty agreement constituted the guarantors’ consent to the execution of the modification agreement. State Bank of Ft. Worth v. Vickery, 206 S.W. 841 (Tex.Com.App.1918); Smallwood v. First National Bank of Bandera, 300 S.W. 665 (Tex.Civ.App.—San Antonio, 1927, no writ); Brinker v. First National Bank, 37 S.W.2d 136 (Tex.Com.App.1931).

The judgment of the trial court is reversed and judgment is here rendered that plaintiff, Commerce Savings Association of Brazoria County, recover of defendant, GGE Management Company, as the principal obligor and against J. B. Westmoreland and Richard B. Merrill, Jr., as guarantors the sum of $528,878.98 representing the unpaid principal balance due under the aforementioned note as of December 29, 1973, and against the said principal obligor, GGE Management Company, for interest accruing on said sum from and after said date at the rate of 10% per annum until paid, and against the said J. B. Westmoreland and Richard B. Merrill, Jr., as guarantors for interest accruing on said sum from and after said date at the legal rate until paid, and for foreclosure of all liens upon property subject to the deed of trust and security agreement securing said indebtedness, including amounts on deposit in savings accounts retained as security therefor and for such other orders, writs and processes as may be necessary and appropriate for the satisfaction of said judgment. Judgment is also rendered in favor of said plaintiff against said defendants for the sum of $52,-878.89 representing the stipulated amount of attorney’s fees due with respect to said indebtedness with interest thereon at the legal rate from and after the date of the trial court’s judgment until paid. It is further ordered that the said Richard B. Merrill, Jr., and the said J. B. Westmoreland are entitled to their respective subrogation rights under Section 34.04, Tex.Bus. & Com. Code Ann., and the said Richard B. Merrill, Jr., is also entitled to judgment over and against said defendant, J. B. Westmoreland, under his agreement of indemnification for such sums as he, the said Merrill, may be compelled to pay under and by virtue of the aforementioned judgment.

The judgment of the trial court is also reversed and judgment is here rendered in favor of said plaintiff against said defendant, Gilbert Gertner, for the amount of $120,000.00, being the applicable limit of said defendant’s liability under the aforementioned limitation of liability agreement, with interest at the legal rate from and after the date of the trial court’s judgment until paid, provided however there shall be credited against said award against Gertner any amount in excess of the sum of $408,-878.98 which may be recovered by said plaintiff under its aforementioned judgment against the other defendants as here-inabove provided and as may be properly allocated to the principal balance due on said indebtedness. It is further ordered that the said Gilbert Gertner is entitled to his subrogation rights under Section 34.04, Tex.Bus. & Com.Code Ann.

The trial court’s judgment is affirmed insofar as it denies relief by cross-plaintiffs, Gertner and Westmoreland, against Merrill and by Merrill against Gertner. It is also affirmed insofar as it awards Gertner as cross-plaintiff declaratory judgment that Westmoreland is the owner of a 50% interest in the Riverside Terrace Apartments joint venture and is jointly and severally liable for its debts and for 50% contribution toward any liabilities of said joint venture; provided, however, that this judgment shall be without prejudice to further determination and adjustment of the rights of the parties to said venture insofar as consistent with such declaratory decree.

The judgment of the trial court is also affirmed insofar as it determines and decrees upon the parties’ stipulation that cross-plaintiff, GGE Management Company, is entitled to credit as costs of court for its advancement of the expense of demolishing the structures upon the premises at 2222 Cleburne Street, Houston, Harris County, Texas, which according to affidavit filed with this court is in the total sum of $19,000.00, and it is ordered that such sum be taxed as an additional cost of court.

All costs of court, including costs of this appeal, are taxed two-thirds against GGE Management Company, J. B. Westmore-land, and Richard B. Merrill, Jr., and one-third against defendant, Gilbert Gertner.

Except as specifically granted, all motions for rehearing filed herein by any of the parties are denied.


author: OSBORN, Justice.

text:
    Jose HERRERA, Appellant, v. BALMORHEA FEEDERS, INC. and Leo Portillo, Appellees.
    No. 6485.
    Court of Civil Appeals of Texas, El Paso.
    June 9, 1976.
    Rehearing Denied July 28, 1976.

      Warren Burnett, Associated, William (Ruff) Ahders, Richard J. Clarkson, Odessa, for appellant.
    McMahon, Cox, Todd, Tidwell & Locke, Jack Q. Tidwell, Odessa, Richard D. Naylor, Pecos, for appellees.
   OPINION

OSBORN, Justice.

The Appellant complains of the entry of judgment for Appellees in the trial Court in a personal injury case where, under the instructions given, the jury did not answer the primary issue on negligence and proximate cause. We affirm.

The facts concerning the accident made the basis of this suit are for the most part undisputed. The Appellant, a twenty-eight year old man, went to work for J & J Farms, Inc. in Reeves County about November 1, 1973. His job was to shovel grain into an auger from which it was carried to mixers, and then outside the building into trucks for delivery to feed lots. Although the record contains evidence of a metal grate covering the auger, there is no dispute but that there was no grate over the auger on November 23,1973, when the accident occurred.

Mr. Herrera testified that on that morning, while he was in the bathroom, his shovel was carried by the flow of grain into the auger, where the shovel handle became stuck, stopping the movement of the auger. He was trying to pull the shovel out when he fell into the auger. Before he could extricate himself, the auger was started again, causing injuries which resulted in the amputation of his leg above the knee.

Mr. Portillo, a truck driver for Balmorhea Feeders, Inc., drove to the J & J Farms, Inc. feed barn on the morning in question, and without looking inside to determine that the auger was clear, activated a switch which started the auger while Mr. Herrera still had one leg caught in it.

Mr. McMahon, an owner and operator of J & J Farms, Inc., testified that the grate was maintained over the auger all the time in order to prevent people from falling into the hole where the auger was located. He did not know why it was off on November 23rd. Mr. Herrera said the grate was not kept over the auger during the time he worked for J & J Farms, Inc.

In answer to Special Issue No. 3, the jury found damages in the amount of $50,000.00. Special Issue No. 1, which was not answered, was as follows:

“Which of the following parties or both from a preponderance of the evidence committed an act of negligence on the occasion in question which was a proximate cause of the accident in question?
a. Leo Portillo
b. Jose Herrera
c. Both
ANSWER_”

In Issue No. 2, the jury was to find the percentage of negligence attributable to each person only if Issue No. 1 was answered “Both.” In an instruction preceding the issues, the Court instructed the jury as follows:

“If you believe therefore from a preponderance of the evidence that, by acts or omissions, J & J Farms, Inc., its agents, servants and employees, failed to provide a reasonably safe place to work for Jose Herrera, and if you further find by a preponderance of the evidence that such failure, if any, was the sole proximate cause of the accident in question, then you should not find that any other person proximately caused the accident in question.”

The Appellant made no objections to the Court’s charge. The Appellees objected specifically to Special Issue No. 1 because it did not contain an answer for “neither,” which was urged in view of the sole proximate cause instruction. When the verdict was returned, neither party objected, the verdict was received and filed, and the jury discharged. A few days later, Appellant filed a motion for mistrial, urging that the verdict was incomplete. Appellees filed a motion for judgment which was granted and a take nothing judgment was entered.

The Appellant presents six points of error, all attacking the judgment based upon what is contended to be an incomplete verdict without findings which support a judgment for Appellees.

The problem in this case arises from the holding in Yarbrough v. Berner, 467 S.W.2d 188 (Tex.1971), and the subsequent amendment to Rule 277, Tex.R.Civ.P., which prohibits inferential rebuttal issues. Nevertheless, it has long been the rule that sole proximate cause, based upon the acts or conduct of a third party, is a viable defense in negligence cases. Northern Texas Traction Co. v. Woodall, 299 S.W. 220 (Tex.Comm’n App.1927, holding approved). Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951 (1944).

The same principle has been applied as to other inferential rebuttal issues. See Blanton v. E & L Transport Co., 146 Tex. 377, 207 S.W.2d 368 (1948), and Schuhmacher Co. v. Holcomb, supra, as to unavoidable accident; and Dallas Ry. & Terminal Co. v. Young, 155 S.W.2d 414 (Tex.Civ.App.—Eastland 1941, writ ref’d), and Garner v. Prescott, 234 S.W.2d 704 (Tex.Civ.App.—Eastland 1950, no writ), as to sudden emergency.

Even after its order in May, 1973, amending Rule 277 so as to prohibit the use of inferential rebuttal issues, the Texas Supreme Court noted that a contention that “the occurrence was proximately caused solely by something other than the defendant’s acts or omissions rebuts that particular defendant’s liability.” Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87 (Tex.1973).

Mr. McMahon testified with regard to this particular auger and grate, prior to the accident, as follows:

“Q. Mr. McMahon, both Defendants’ Exhibits 1 and 2 show a grate that is over that hole. What is the purpose of that grate being there?
“A. Well, it’s put there to prevent accidents, to keep people from falling in the hole.
“Q. Does that grate stay there all of the time?
“A. Yes, sir.
“Q. Are you aware of any time in November of 1973 that that grate was not on that hole?
“A. Not to my knowledge.
“Q. Did you ever see the grate not on the hole?
“A. No, sir.”
“Q. How heavy is that grate?
“A. It probably weighs between two and three hundred pounds, I imagine.
“Q. Are the sprockets of it close enough together — or the pieces of steel — to where a person’s foot could not go through that hole?
“A. Yes, sir.”

With regard to the grate after the accident, he said:

“Q. And did you see the place where he was hurt?
“A. Yes, sir.
“Q. Where was the grate at that time?
“A. Laying to one side.”

We believe this evidence raised the issue covered by the Court’s instruction on sole proximate cause, particularly since Appel-lees only had to raise the issue and the burden was on Appellant to rebut it, although in this case the instruction did, in fact, place the burden on the Appellees.

The instruction given was not objected as being a general charge as was done in Pittsburgh Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.1969). Neither was there an objection that it was a comment on the weight of evidence. Under Rule 277 such objections are probably no longer valid. The instruction in this case not having advised the jury as to the effect of its application was not objectionable from that standpoint and obviously would be helpful to the jury with regard to the defense raised under the recited evidence. See Pope and Lowerre, Revised Rule 277 — A Better Special Verdict System For Texas, 27 Sw.L.J. 577, at 589 (1973).

The Courts having long recognized the sole proximate cause defense, but now having determined not to submit any issue to the jury, obviously, if any meaningful instruction is to be given, the jury must be able to apply it and follow the instruction. There is no indication in this case that there was a hung jury, and the verdict was received by the Court and counsel without objection as being an incomplete verdict. The only basis for no answer to Special Issue No. 1 is that the jury believed that the conduct of J & J Farms, Inc. was the sole proximate cause of the accident, and since we presume that the jury properly followed the Court’s charge, it was obligated to leave Special Issue No. 1 unanswered. Such conclusion is strengthened by the Special Issue itself which, erroneously, but without objection, presumed that the negligence of Portillo or Herrera, or their combined negligence, proximately caused the accident in question. The jury had to overcome such presumption in order for Special Issue No. 1 to be left unanswered under the sole proximate cause instruction.

A very similar issue is found in Members Mutual Insurance Company v. Muckelroy, 523 S.W.2d 77 (Tex.Civ.App.—Houston (1st Dist.) 1975, writ ref’d n. r. e.). Apparently no complaint was made about the Court presuming negligence upon the parties in that case either. If under such an issue, the jury concludes that the plaintiff has not met the burden of proof to establish defendant’s negligence by a preponderance of the evidence, how do they record that finding? The same question prevails as to the defendant’s burden on the plaintiff’s negligence. A similar question can be raised where they both fail to meet their burden of proof under the evidence.

But where the Court presumes negligence upon the part of the participants to the action, does not advise the jury of their right to determine that there has been a failure to meet the burden of proof as to negligence or proximate cause, and only instructs the jury that they cannot find proximate cause on the part of one of the participants if they find sole proximate cause from the conduct of a third party, then in that case the failure to answer can have but one meaning under the Court’s charge and that is that the jury concluded that the conduct of the third party was the sole proximate cause of the accident in question. In such a case, Rule 295, Tex.R. Civ.P., with regard to a defective verdict is not applicable. That Rule provides:

“ * * * If it (the verdict) is not responsive to the issue submitted, or contains conflicting findings, the court shall call the jury’s attention thereto in writing and send them back for further deliberation.”

In this case, there was no conflicting finding and it cannot be said that the failure to answer Special Issue No. 1 was not responsive, because the Court had previously instructed the jury not to answer if they found sole proximate cause upon the part of J & J Farms, Inc. Since there is no indication of a hung jury in this case, we have given the Court’s charge the only interpretation that can be given to it under the instruction and issue as submitted. Even if it could be determined that the jury finding is ambiguous or unclear, we still would be under a duty to try to interpret the jury finding so as to uphold the trial Court’s judgment. First Federal Savings & Loan Association of Dallas v. Sharp, 359 S.W.2d 902 (Tex.1962). That has been done in this case. But to prevent a reoccurrence of this and other problems which must necessarily arise where the Court presumes negligence, as it did in the issue in this case and in the issue in the Muckelroy case, we believe that it is preferable to submit each act or omission as to each party separately with a provision for both an affirmative and a negative answer. See 1 Texas Pattern Jury Charges, 1973 Cum.Supp., 11, 15-20.

The Committee on Pattern Jury Charges has suggested a rather abstract statement of the law where sole proximate cause is raised. 1 Texas Pattern Jury Charges, 1973 Cum.Supp., PJC 3.04. In Deviney v. McLendon, 496 S.W.2d 161 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.), Justice Keith said: “ * * * Counsel, in his argument to the jury, must so present his case as to make the law contained in the charge applicable to the facts of the case.” We believe the following is also true. The Court, in its charge to the jury, must so present its charge as to make the law contained in the charge applicable to the facts in' the case. That, the trial Judge did in this case without objection from Appellant. The verdict was received without objection. We do not believe complaint can be made that such verdict was incomplete after the jury was discharged and the verdict filed. Any error could be corrected only before the jury was discharged. Lewis v. Texas Employers’ Insurance Ass’n., 151 Tex. 95, 246 S.W.2d 599 (1952). Thereafter, there may be a waiver of the right to complain. Horn v. Atchison, Topeka and Santa Fe Railway Company, 519 S.W.2d 894 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.); Bell v. Aetna Casualty and Surety Company, 394 S.W.2d 830 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.). To reach any other results permits Appellant to take advantage of Appellees’ objection to the Court’s charge that the answer “Neither” was not provided under the inferential rebuttal instruction. This he cannot do. Texas Employers’ Insurance Ass’n v. Neuman, 379 S.W.2d 295 (Tex.1964). At the hearing on the motion for a new trial, counsel for Appellant said: “If it (the charge) had been done properly, there would have been Subsection D to Question No. 1 to which the jury could have answered ‘Neither’ being construed as finding that third party was the cause of Plaintiff’s injuries, if any.” This suggestion came too late.

Blanton v. E & L Transport Co., supra, upon which Appellant relies, was decided prior to the amendment to Rule 277 and is not applicable. In that case, the jury could have found negligence upon the part of the plaintiff and defendant which would have conflicted with findings of unavoidable accident and thus required a mistrial. Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772 (1960). Such was not possible under the charge in this case, where the jury had to find that the negligence of one of two participants, or the negligence of both, was a proximate cause, or make no answer if there was a sole proximate cause resulting from the conduct of a third party.

Appellant’s points of error one through six are overruled. The judgment of the trial Court is affirmed.


author: WALTER, Justice.

text:
    Vonzell Palmer PATILLO, Appellant, v. Walter Eugene PALMER, Appellee.
    No. 4925.
    Court of Civil Appeals of Texas, Eastland.
    June 10, 1976.

      W. L. Burke, Jr., Robinson, Hanna, Burke & Moore, Inc., Abilene, for appellant.
    Randy Wilson, Wilson & Saringer, Abilene, for appellee.
   WALTER, Justice.

On October 26, 1962, a judgment dissolving the bonds of matrimony of Vonzell Palmer and W. E. Palmer was rendered providing for W. E. Palmer to make child support payments of $60 per month for their child, Royce Scott Palmer, a boy, born June 1, 1959.

An agreed order that Mr. Palmer was in arrears in the sum of $6,840.00 on his child support payments was signed by the parties and the judge in October, 1973. The order recites Mr. Palmer was in contempt because of said arrearage and the parties agreed he could purge himself of contempt by making monthly payments to be applied on the ar-rearage in addition to his regular child support payments. From said date he has made his payments regularly.

Vonzell Palmer Patillo brought this suit against her former husband seeking a judgment for $6,040.00 the unpaid balance of the arrearage child support.

The court found Palmer was not in default and Mrs. Patillo was not entitled to reduce the arrearage to judgment as provided for in the Texas Family Code. Mrs. Patillo has appealed.

Section 14.09 of the Texas Family Code provides as follows:

“(a) Any order of the court may be enforced by contempt.
(b) A court may enforce an order for support as provided in Rule 308A of the Texas Rules of Civil Procedure or any subsequent version of the rule promulgated by the supreme court.
(c) On the motion of any party entitled to receive payments for the benefit of a child, the court may render judgment against a defaulting party for any amount unpaid and owing after 10 days’ notice to the defaulting party of his failure or refusal to carry out the terms of the order. The judgment may be enforced by any means available for the enforcement of judgments for debts.
(d) A parent may be compelled to testify fully in regard to his ability to support the child.” (Emphasis added)
The agreed narrative statement of facts reveals:
“4. It was agreed that Walter Eugene Palmer has made payments regularly on the arrearage of child support as ordered beginning with the October 15, 1973 payment.”

The statute does not compel the court to render judgment against a defaulting party. We hold this record does not show the court abused his discretion in refusing to grant such judgment.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: KEITH, Justice.

text:
    BENEFICIAL FINANCE CO. OF AUSTIN, Appellant, v. Charles WILLIAMS, Appellee.
    No. 7836.
    Court of Civil Appeals of Texas, Beaumont.
    June 17, 1976.
    Rehearing Denied July 15, 1976.
    Richard L. Alexander, Austin, for appellant.
    Frank A. Casebier, Austin, for appellee.
   KEITH, Justice.

Appellant is Beneficial Finance Company of Austin, and it was defendant in the trial court. Having been sued under several new statutes and regulations, it answered by a general denial. After a trial to the court in which plaintiff was the only witness, judgment in the sum of $2,894.16, “such sum consisting of the penalties provided by statute,” together with attorney’s fees in the sum of $633.00, was entered in favor of plaintiff and against the defendant. Defendant has perfected its appeal from such judgment upon several points of error. Having reviewed the record and, finding no error, we affirm for the reasons now to be stated.

In its first point, defendant contends that error is shown because the trial court failed to file findings of fact and conclusions of law under Tex.R.Civ.P. 296. We concede that defendant complied with all of the provisions of the Rule and no such findings or conclusions were filed. But we have a complete statement of facts including numerous exhibits and defendant has failed to show that it has suffered injury because of the failure to file such findings. Defendant’s only authority, Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117, 120 (1944), is dispositive. Our record affirmatively shows that defendant has suffered no injury in the premises. Point one is overruled.

Defendant brings three bifurcated points on for consideration and we will treat them jointly. It is apparent from the argument that the thrust of the contention is that the plaintiff did not establish that the lending agency was the defendant corporation known as Beneficial Finance Company of Austin.

We have examined the record under the appropriate standards, i. e., those set out in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), and now overrule each of the points of error.

Plaintiff was the only witness who gave testimony going to the merits of the controversy (his counsel testified on the issue of attorney’s fees only), and it must be admitted, he was not too positive as to the legal identity of the lending agency with whom he did business. Plaintiff did, however, introduce in evidence numerous documents which formed the basis of the loan transaction he had with the lending agency. The originals of the exhibits are in our record and the note involved was made payable to:

“BENEFICIAL FINANCE CO. OF AUSTIN
5427 NO. INTERREGIONAL
AUSTIN, TEXAS
TRAVIS COUNTY
4504106 TEL. CL 2 0160”

Immediately below the foregoing wording, which appears to have been placed upon the face of the printed note with a rubber stamp, appear these words: “The Lender’s name and address above and the items set forth in the box directly below are expressly made a part of this Note.” The note bears, according to plaintiff’s undisputed testimony, the signatures of plaintiff, his wife, and certain witnesses in defendant’s office. As noted earlier, defendant offered no testimony upon the trial.

Plaintiff testified as to his prior dealings with the defendant and from the instruments introduced in evidence, some by the defendant, it readily appears that defendant was a creditor as defined in Title I, § 103(f) of the Act [15 U.S.C.A. § 1602(f)],

Both parties introduced the instrument showing that defendant was engaged in the loan business; and, defendant made no effort to disprove the statements contained in the document. Granted that the old rule that a party who introduces a document vouches for its accuracy and will not be allowed to impeach or contradict its recitals has now become a casualty to its exceptions [Gevinson v. Manhattan Construction Co. of Okl., 449 S.W.2d 458, 466 (Tex.1969)], nevertheless, defendant made no effort to dispute any of the recitals in Exhibit D-l; and, under these circumstances, we are of the opinion that defendant is bound by the recitals therein. City of San Antonio v. Guido Bros. Construction Co., 460 S.W.2d 155, 162, fn. 8 (Tex.Civ.App.—Beaumont 1970, writ ref d n. r. e.). Another written document, the “security agreement” which defendant introduced in evidence (as D — 4) contained references to “Article 3:15(5) of the Texas Consumer Credit Code” as well as “Section 6 of said Article 3:15.” This is a direct reference to the statute fixing the maximum rates of interest which a licensee under the Code may charge. Only a lender who was a licensee under Art. 5069-3.01 of the Code could have made a lawful loan in the amount and at the rate of interest provided in the note.

Being of the opinion that none of defendant’s points of error has any merit, each is overruled and the judgment of the trial court is affirmed.

AFFIRMED.

STEPHENSON, J., not participating.

      . Plaintiff invoked the Truth in Lending Act, 15 U.S.C.A. § 1601, et seq. (1974), hereinafter the “Act”; The Texas Consumer Credit Code, Tex. Rev.Civ.Stat.Ann. art. 5069-2.01, et seq. (1971), hereinafter the “Code”; and Regulation “Z” promulgated by the Board of Governors of the Federal Reserve System, 12 C.F.R. 226, hereinafter “Regulation ‘Z’.”

      . Point Two contends that the trial court erred in holding that the transaction complained of was within the scope of the Act because (a) there is no evidence that defendant was a “creditor,” or (b) the finding is not supported by “sufficient evidence.” Point Three complains of the finding that defendant was a licensee, as defined in the Code, is not supported by any evidence or, alternatively, by sufficient evidence. Point Four complains of the finding that defendant made the loan to the plaintiff because there is no evidence supporting such finding or, alternatively, such finding is not supported by sufficient evidence.

      . For some unexplained reason, the words “BENEFICIAL FINANCE CO.” are almost illegible upon all of the other remaining documents making up the complete “paper package” of the transaction. However, a careful examination thereof with the aid of a magnifying glass removes all doubt as to the name of the lender — the creditor was Beneficial Finance Company of Austin.

      . Defendant introduced as D-l the original of an instrument signed by plaintiff showing an interest charge of $630.58 upon a loan of $2181.42 with an annual percentage interest rate of 16.85 percent. This document contained this language just above the signatures of the parties: “The undersigned also acknowledge receipt of a Statement of Disclosure as prescribed by the aforesaid Consumer Credit Protection Act and Regulation Z and further agree that the proceeds of loan were received on the date shown below and were disbursed, in accordance with the undersigned’s authorization, for the items shown in the box to the right above, receipt of the item designated ‘Cash or Check Delivered to Borrowers’ hereby being acknowledged.” The box mentioned discloses that only $37.25 was delivered to borrower by “cash or check,” the remainder of the principal sum being shown to have been paid to other parties, presumably merchants or creditors.


text:
    DAL-MAC CONSTRUCTION COMPANY, Appellant, v. JOHN MANESS PAINTING COMPANY, Appellee.
    No. 4922.
    Court of Civil Appeals of Texas, Eastland.
    June 24, 1976.
    Stephen W. Schueler, Margraves, Ken-nerly & Schueler, Houston, for appellant.

      Pat McDowell, Maloney, Milner & McDowell, Dallas, for appellee.
   WALTER, Justice.

John Maness Painting Company filed suit against Dal-Mac Construction Company and Willowbrooke Development Company on a painting contract. Willowbrooke’s plea of privilege was sustained and plaintiff’s cause of action against it was transferred to Harris County. Based on a verdict, judgment was rendered for plaintiff against Dal-Mac for $17,867.64 and Dal-Mac has appealed.

The invoices set out in the exhibit attached to Maness’ trial pleading show a total of $18,954.94 for extra work. In his supplemental brief, Maness says he sued for only $18,056.23 for the unpaid extras. He says he means by the term “extra work” all of the work above the original $64,000.00 called for in the base contract.

An issue was submitted on the extra work that was designated Blue Cross-Blue Shield job and the jury found the value of that work to be $5,009.00. However, no issues were submitted on the balance of the extra work.

Dal-Mac denied under oath the account attached to Maness’ petition and asserted that all offsets, payments and credits had not been allowed.

The fair cash market value of the labor and materials furnished and performed by Maness in 1972 in Harris County on the extra work, not included in the Blue Cross-Blue Shield job, was not submitted to the jury and it was not established as a matter of law.

In Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529 (Tex.1965), the court said:

“Under the provisions of Rule 279, Texas Rules of Civil Procedure, an independent ground of recovery or defense not conclusively established by the evidence is waived if no issue thereon is given or requested . . . ”

We hold the court erred in rendering judgment for this extra work because it involved controverted issues of fact on one of Maness’ grounds of recovery.

This case was not fully developed and in the interest of justice the judgment is reversed and the cause is remanded.