author: CAMPBELL, Judge.

text:
    Phillip Michael BEIER, Appellant, v. The STATE of Texas, Appellee.
    No. 647-84.
    Court of Criminal Appeals of Texas, En Banc.
    March 27, 1985.
    Charles Rice Young, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty. and Calvin A. Hartmann, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Alfred Walker, First Asst. State’s Atty., and Cathleen R. Riedel, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted for the misdemeanor offense of selling obscene material. V.T.C.A. Penal Code, Sec. 43.23(c)(1). The jury assessed punishment at fifteen days confinement in the Harris County jail and a one thousand dollar fine. The Fourteenth Court of Appeals affirmed his conviction in a published opinion. Beir v. State, 681 S.W.2d 124 (Tex.App. — Houston [14th] 1984). We granted appellant’s petition for discretionary review to determine the sufficiency of the evidence supporting appellant’s conviction. After reviewing the record, we have concluded that the evidence is insufficient to sustain appellant’s conviction.

Since we are examining the sufficiency of the evidence, a recitation of the facts is in order. On January 6, 1982, members of the Houston Police Department vice squad, acting pursuant to a tip from an employee that the manager would be there at 6:00 p.m. to collect the days receipts, went to the Ball Park, an “adult” bookstore in Houston. Appellant arrived at the predicted time carrying what appeared to the officers to be a zippered bank bag. Appellant was unknown to the police. Vice squad officers inside the bookstore observed appellant enter the store, whereupon he proceeded directly to the cash register and proceeded to clear the register. As appellant was clearing the cash register he was seen conversing with a clerk employed at the bookstore. The record is silent as to the substance of their conversation. While appellant was clearing the register, one of the officers attempted to purchase a film, but was told by the clerk that he would have to wait until the register was cleared. After the register was cleared, another officer purchased from the clerk the film which is the subject of this prosecution. All of the officers testified that appellant was going out the front door at the time the film was purchased. The police subsequently obtained a warrant for appellant’s arrest for his alleged involvement in the transaction. When appellant was searched incident to his arrest, two pieces of paper were found on his person. One purported to be an employee list; the other was a list of names and phone numbers with a notation on it that read: “[Ijnstruct clerks to cooperate — do not interfere with vice going into arcade — totally cooperative.” Other evidence was introduced to show that the clerk had knowledge of the character and content of the film he sold to the police officer.

As the court of appeals correctly recognized, the evidence is insufficient to show that appellant acting alone sold obscene material as alleged in the information. If appellant is guilty, it is as a party under V.T.C.A. Penal Code, Sec. 7.02(a)(2), which reads in pertinent part:

“(a) A person is criminally responsible for an offense committed by the conduct of another if:
“(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.... ”

Where the evidence shows that the defendant was not a “primary actor,” but at most responsible for the actions of the “primary actor,” the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct. Herring v. State, 633 S.W.2d 905 (Tex.App. — Dallas 1982); aff'd on other grounds 659 S.W.2d 391 (Tex.Cr.App.1983). See also, Morrison v. State, 608 S.W.2d 233 (Tex.Cr.App.1980); Apodaca v. State, 589 S.W.2d 696 (Tex.Cr.App.1979).

Evidence is sufficient to convict the defendant under the law of parties where he is physically present at the commission of the offense, and encourages the commission of the offense either by words or other agreement. Tarpley v. State, 565 S.W.2d 525 (Tex.Cr.App.1978). The agreement, if any, must be before or contemporaneous with the criminal event. Urtado v. State, 605 S.W.2d 907 (Tex.Cr.App.1980). Mere presence alone without evidence of intentional participation is insufficient. Acy v. State, 618 S.W.2d 362 (Tex.Cr.App.1981). In determining whether the accused participated as a party, the court may look to events occurring before, during and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to do the prohibited act. Medellin v. State, 617 S.W.2d 229 (Tex.Cr.App.1981); Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976). Circumstantial evidence may be used to prove one is a party to an offense. Wygal v. State, 555 S.W.2d 465 (Tex.Cr.App.1977).

As stated in the court of appeals’ opinion:

“Whether there was sufficient evidence to convict Beier [appellant] as a party to distribution [sale] of obscenity is governed by Griffin v. State, 614 S.W.2d 155 (Tex.Cr.App.1981). The relevant question is whether, after viewing the evidence in the light most favorable to the verdict, any rational fact-finder could have found the essential elements of the offense beyond a reasonable doubt.” 681 S.W.2d at 128.

The court of appeals concluded that the essential elements of the offense are that appellant “intentionally and knowingly assisted a common undertaking to promote obscenity, and that distribution, exhibition, or sale of obscenity took place as a part of the common undertaking.” Id. at 128. Were these the essential elements of the offense, we have no doubt that the evidence would be sufficient to support appellant’s conviction. However, these are not the essential elements of the offense.

The information in this case alleges, in pertinent part, that appellant “knowing the content and character of the material, [did] intentionally sell obscene material to W.L. HAYDEN..., namely, a film entitled “THE MEN’S ROOM” which depicts patently offensive representations of actual and simulated sodomy.” Applying the law of parties as set forth in V.T.C.A. Penal Code, Sec. 7.02(a)(2) to the allegations in the information, the essential elements of the offense are that appellant solicited, encouraged, directed, aided or attempted to aid the clerk in the sale of the film “THE MEN’S ROOM,” and that he did so, not inadvertently, but with the intent to promote or assist the sale of said film, and that appellant had knowledge of the character and content of the film.

As is easily observed, the court of appeal’s identification of the essential elements of the offense is much broader than the allegations in the information. While clearing the cash register may be an act by which appellant “intentionally and knowingly assisted a common undertaking to promote obscenity, it escapes us how it can be construed as an act that solicited, encouraged, directed, aided, or attempted to aid the sale of the film “THE MEN’S ROOM.” The opinion of the court of appeals comes dangerously close to authorizing appellant’s conviction based upon proof of his status as the manager of an enterprise, so long as he knew that the enterprise had criminal potential. This concept contravenes one of the basic tenets of our penal code: that a person commits an offense only if he voluntarily engages in conduct which is proscribed by the Penal Code. See V.T.C.A. Penal Code, Sec. 6.01(a). Conduct means an act or omission and its accompanying mental state. V.T.C.A. Penal Code, Sec. 1.07(a)(8). Under our law a person is not punished for his status, but for his conduct. See also Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (status offense violative of Fourteenth Amendment.) Cf. Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).

The argument by the State’s Prosecuting Attorney in his brief also suffers from this malady. He argues that since the evidence, construed in a light most favorable to the verdict, established that appellant was the manager of the Ball Park, it was reasonable for the jury to infer that appellant had general power and control of the Ball Park and that he was in fact operating it. The State’s Prosecuting Attorney is essentially arguing that appellant be punished for his status, not his conduct. He has also overlooked our opinion in Goodman v. State, 667 S.W.2d 135, 137 (Tex.Cr.App.1984), a case in which the defendants were also charged with the promotion of obscenity. We there stated that we will not infer the duties of a manager when the evidence has not established what those duties are. Since the State’s Prosecuting Attorney does not specify what conduct forms the basis of appellant’s conviction, his argument must fail.

The State’s Prosecuting Attorney also directs our attention to Volkland v. State, 510 S.W.2d 585 (Tex.Cr.App.1974) (hereinafter Volkland), wherein we stated:

“It need not be shown that appellant personally placed the particular magazine on display for sale, nor that he was at the premises at the time the particular magazine was purchased by the officer. A manager cannot avoid all responsibility by directing that all operations be carried out by his employees.” at pg. 587

He contends that Volkland authorizes the affirmance of appellant’s conviction. His reliance on Volkland is misplaced.

In that cause there was evidence that the defendant was the manager of an adult bookstore in Dallas; that he instructed employees in wrapping the individual books and magazines displayed for sale in cellophane; that he wrapped them for the purpose of exhibiting them for sale; and that he looked through a few of them that had the type of pictures found in the magazine admitted into evidence. Furthermore, the defendant in Volkland was charged with exhibiting, not selling, the obscene material, which is why his presence at the time of the sale of a specific magazine was immaterial. The State was not required to prove that he had personally placed the particular magazine on sale because he was guilty as a party, not as a principal.

In Volkland the State proved several acts on the part of the manager that connected him as a participant in the exhibition of obscene material. In the case sub judi-ce, it is exactly this type of proof that is lacking. Since the State failed to prove an act by appellant that directed, aided, encouraged, or assisted in the commission of the offense, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Therefore, the evidence is insufficient to support appellant’s conviction. Griffin, supra.

Having found that reversal must result in the instant cause due to insufficiency of the evidence, the decisions of the United States Supreme Court in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), dictate that no further prosecution be had in this cause.

The judgments of the court of appeals and the trial court are reversed and this cause is remanded to the trial court to enter an order of acquittal.

      . All emphasis is supplied by the author of this opinion unless otherwise indicated.

      . The officer that testified that the document in question was an employee list admitted on cross-examination that he only recognized one name out of the thirty on the list. He knew that name because it was the name of the clerk that sold the film “THE MEN’S ROOM." This is the entire factual basis for the officer’s conclusion that the list was an employee list.

      .These two pieces of paper were not offered to prove the truth of the statements they contained. They were offered to show appellant’s status as the manager of the Ball Park and his awareness of its activities. The court of appeals so held, 681 S.W.2d at 129; and we have not granted discretionary review on this ground. Thus, we will only consider the lists as having probative value on those two issues.

      . One cannot have the intent to promote or assist the sale of obscene material unless he has knowledge of the content and character of the material. Since selling obscene material is an offense only if the seller had knowledge of the content and character of the material, no person lacking this knowledge can possess the intent to promote or assist the sale of obscene material. See V.T.C.A. Penal Code, Secs. 7.02, 42.23. See also Davis v. State, 658 S.W.2d 572 (Tex.Cr.App.1983). (First Amendment safeguards require knowledge of content and character of printed material before its sale may be punished.)

      . Sec. 43.23(c)(1), supra, under which appellant was prosecuted in the case sub judice, proscribes the promotion of obscene materials. There are no fewer than seventeen different ways to promote obscenity. V.T.C.A. Penal Code, Sec. 43.21(a)(5). Since the State alleged that appellant promoted obscene material by selling it, it bound itself to prove that particular method of promotion at trial.

      . Volkland was prosecuted under the old Penal Code, which drew no distinction between principals and accomplices in misdemeanors. Volkland, 510 S.W.2d at 587-588.


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte Marcia Lynette GRANT.
    No. 69323.
    Court of Criminal Appeals of Texas, En Banc.
    March 27, 1985.
    Percy Foreman, Mike De Geurin, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., and Patricia Saum, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CAMPBELL, Judge.

This is an application for habeas corpus seeking relief pursuant to Art. 11.07, V.A. C.C.P.

Applicant contends that her plea of guilty was involuntary insofar as it was based upon an agreement with the prosecutor that she would be permitted to appeal the merits of her pre-trial motion to suppress even though applicant pled nolo con-tendere and signed a judicial confession. The trial court has recommended relief be granted. We agree, however we find that an out of time appeal is now possible, and we will so order.

Applicant was charged by indictment with possession of a controlled substance. A pre-trial motion to suppress was filed and a hearing held on August 15, 1980, at which time the motion was overruled.

The trial court made the following findings of fact which we find are supported by the record:

“4. On January 26,1981 petitioner entered a plea of ‘nolo contendere’ pursuant to a plea agreement which included a waiver of petitioner’s right to trial by jury, confrontation of witnesses and a stipulation of evidence. In return the State made a recommendation to this Court that petitioner be sentenced to ten (10) years.
“5. A pre-printed form, entitled ‘Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial confession’ was introduced as evidence as State’s exhibit # 1 at the time of the plea of ‘nolo contendere.’ The pre-printed form was signed by the petitioner and included the following language that amounts to a judicial confession:
“ ‘I understand the above allegations [the indictment] and I confess that they are true and that the acts alleged above were committed on April 28, 1980.’
“7. It was understood by the Court, the petitioner, the petitioner’s attorney and the attorney representing the State [Roberto Gutierrez] at the time the plea was entered that the petitioner was to be allowed to appeal the merits of the pretrial motion to suppress. The plea was conditioned upon this understanding.
“8. This understanding is reflected in the record by the following colloquy between counsel for petitioner’s co-defendant and the Court:
“DEFENSE COUNSEL: We will go ahead and accept sentence only wanting the record to reflect that as to both defendants we reserve our right to appeal on the limited issue of the motion to suppress.
“THE COURT: All right, sir, at the proper time I will so allow you.
“10. The plea agreement was approved by this Court and following said agreement, this court sentenced Petitioner to ten (10) years.
“11. This Court did not admonish the petitioner that if the plea agreement was approved and followed she would not be allowed to appeal without permission of the Court because it was already agreed and understood that the plea was conditioned upon her right to appeal the merits of the motion to suppress.
“12. Petitioner thereafter gave timely notice of appeal and this Court approved an appeal bond. Petitioner was released on bond pending the appeal of the motion to suppress.
“13. On appeal petitioner was represented by a different attorney, Mike De-Geurin of the firm of Foreman & DeGeu-rin.
“14. During the appeal process it was discovered that the pre-printed form, States exhibit # 1, was inconsistent with the plea of ‘nolo contendere’ in that it included a ‘judicial confession and language reflecting a ‘plea of guilty’ rather than ‘nolo contendere’ ....
“15. The State of Texas was represented by a different attorney on appeal who was not aware of the agreement and understanding between the parties at the time of the plea. It was the State’s position on appeal that because of the ‘judicial confession’ the petitioner was precluded from having the merits of the motion to suppress heard on appeal.
“16. The Court of Appeals for the Fourteenth Supreme Judicial District affirmed the conviction without reaching the issue concerning the motion to suppress because the ‘judicial confession’ made the issue moot and also held that the record was insufficient to show that petitioner’s plea was a conditional plea.
“17. This post-conviction application for writ of habeas corpus was brought to establish facts and circumstances surrounding the plea that may not have appeared sufficiently in the record on appeal.”

The habeas record also includes an affidavit completed by the assistant district attorney who negotiated applicant’s plea and represented the State at the plea hearing. The affidavit states:

“It was not my intention to defeat the Defendant’s right to appeal the Motion to Suppress by having her sign the pre-printed ‘stipulation’ that is normally used with a Plea of Guilty or a Plea of Nolo Contendere. It is my understanding as well as the Defendant [sic], that she would be able to appeal the Motion to Suppress at the time she entered her plea of Nolo Contendere.”

At the time that applicant’s appeal was heard, the case law of this State did prohibit an appellate court from reviewing the merits of applicant’s claim. See Haney v. State, 588 S.W.2d 913 (Tex.Cr.App.1979); Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978). Thus the court of appeal’s refusal to reach the merits of applicant’s claim was correct at the time rendered. Recently this Court has overruled Haney, supra and Ferguson, supra, and held that the signing of a judicial confession when entering a plea of guilty or nolo contendere pursuant to Art. 44.02, Y.A.C.C.P., does not abrogate a defendant’s right to have appellate review of the merits of a pre-trial motion to suppress. Morgan v. State, 688 S.W.2d 504 (Tex.Cr.App.1985).

This Court has on many occasions held, in situations analogous to the one at bar, that if a defendant has been deprived of a meaningful appeal, he is entitled to an out-of-time appeal, assuming such is possible. Raley v. State, 528 S.W.2d 257 (Tex.Cr.App.1975); Hill v. State, 578 S.W.2d 759 (Tex.Cr.App.1975); Ex Parte Rains, 555 S.W.2d 478 (Tex.Cr.App.1977); Ex Parte Beck, 621 S.W.2d 810, 811 (Tex.Cr.App.1981); Ex Parte Campbell, 494 S.W.2d 842 (Tex.Cr.App.1973). This case has previously been appealed and a record of the hearing on the motion to suppress is available.

An analysis of applicant’s assertion that her plea was involuntarily entered is no longer necessary, since today we hold that she is in fact entitled to an out-of-time appeal wherein the merits of her pre-trial motion to suppress will be reached. See Morgan, supra.

The relief sought is denied. However, applicant is entitled to an out-of-time appeal. This cause is hereby remanded to the 230th District Court for Harris County for further proceedings not inconsistent with this opinion.

It is so ordered.

ONION, P.J., dissents.

      . In Morgan, supra, this Court found that the rationale of Mooney v. State, 615 S.W.2d 776 (Tex.Cr.App.1981) and Wooten v. State, 612 S.W.2d 561 (Tex.Cr.App.1981) need no longer be applied. Slip opinion at p. 6. Thus, a conviction based upon a plea entered pursuant to Art. 44.02, V.A.C.C.P., wherein a judicial confession is executed may be appealed and the merits of the pre-trial motion reached. Specific performance of such a plea bargain is in fact now available. See generally, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).


author: VANCE, Justice.

text:
    James D. FORTNER, Appellant, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Appellee.
    No. 05-83-00584-CV
    Court of Appeals of Texas, Dallas.
    July 17, 1984.
    Rehearing Denied Aug. 16, 1984.

      Joe Longley, Austin, for appellant.
    Kenneth R. Stein, Dallas, for appellee.
    Before STEPHENS, VANCE and ALLEN, JJ.
   VANCE, Justice.

This is an appeal from a judgment for fraud rendered in favor of appellee, Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill Lynch) against appellant James D. Fort-ner. Merrill Lynch, acting as Fortner’s broker, made a margin call on Fortner in connection with a series of commodity futures transactions. Fortner gave Merrill Lynch a check for $68,000 to cover the margin call, which was subsequently returned for insufficient funds. Merrill Lynch then liquidated Fortner’s positions in the commodities markets, with a net loss to Merrill Lynch of $60,933. Fortner executed a promissory note to Merrill Lynch in the amount of $60,933 and made payments of $1,100 on the note prior to defaulting. Merrill Lynch subsequently accelerated the note and filed suit to recover its damages based upon Fortner’s failure to pay the note, and in the alternative, based upon Fortner’s fraud. Fortner answered by general denial but failed to appear at trial, at which time Merrill Lynch abandoned its claim based upon the note. The trial court entered judgment in favor of Merrill Lynch based upon its allegation of fraud and awarded it actual damages of $59,833 plus exemplary damages of $59,833. Fortner appeals from this judgment.

On appeal, Fortner brings ten points of error. He contends that the trial court erred in rendering judgment for Merrill Lynch because: (1) a fatal variance exists between Merrill Lynch’s pleadings and proof; (2) Merrill Lynch failed to prove all the elements of fraud necessary to support the judgment; (3) there is no evidence, or alternatively, insufficient evidence, to support the finding that Fortner represented to Merrill Lynch that the cheek was “good” at the time it was issued; (4) there is no evidence, or alternatively, insufficient evidence, to support the finding that Fortner willfully and maliciously deceived and injured Merrill Lynch; (5) there is no evidence, or alternatively, insufficient evidence, to support the award of exemplary damages; (6) as a matter of law, exemplary damages may not be recovered for a breach of contract; and, (7) $59,833 in exemplary damages is excessive. We disagree with all these contentions and thus affirm the judgment of the trial court.

In points of error one and two Fortner complains that a fatal variance exists between Merrill Lynch’s pleadings and proof, and furthermore, that Merrill Lynch failed to plead and prove all of the elements of fraud necessary to support the judgment. More specifically, Fortner complains of the portion of Merrill Lynch’s pleadings stating that “Plaintiff would show that on or about March 24, 1981, Defendant represented to Plaintiff that the said check in the amount of $68,000 was effective payment for the margin call....” (emphasis added). Fortner contends, first, that the allegation in the pleadings of a false representation occurring on or about March 24, 1981, is at variance with the proof adduced at trial complaining of a misrepresentation on April 24, 1981. Fortner contends this variance is a fatal one, and thereby the pleadings did not constitute fair or adequate notice to him of Merrill Lynch’s cause of action. We disagree.

In order to constitute a fatal variance between the pleadings and proof the divergence must be substantial, misleading, and prejudicial. Kleber v. Pacific Avenue Garage, 70 S.W.2d 812, 814 (Tex.Civ.App. —Dallas 1934, writ dism’d). Furthermore, in post-answer default cases such as this one, mere formalities, minor defects, and technical insufficiencies will not invalidate the judgment if the petition states a cause of action and gives fair notice to the opposing party of the relief sought. Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex.1979). The pleadings in this case allege that the misrepresentation by Fortner occurred “on or about” March 24, 1981. The evidence adduced at trial established that the check was given to Merrill Lynch on April 24, 1981, which is also the date on the check. The term “on or about,” with respect to a specified date, means generally in time around the date specified. Texas & N.O.R. Co. v. Weems, 184 S.W. 1103, 1104 (Tex.Civ.App. — Texarkana 1916, aff'd 222 S.W. 972 (Tex.Comm.App.1920). The courts have so held, upholding variances in dates between the pleadings and proof of as much as a month. Id. at 1104.

As we have stated, pleadings are sufficient if they give fair notice of a cause of action. 578 S.W.2d at 683. Merrill Lynch’s pleadings clearly alleged that the conduct of Fortner constituted fraud, by virtue of his representation that on the date of delivery the $68,000 check was effective payment for the margin call. This pleading constituted fair notice of the cause of action alleged by Merrill Lynch, and no fatal variance between the pleadings and proof exists. Point of error one is overruled.

Next, Fortner contends that Merrill Lynch failed to plead and prove all elements of fraud necessary to support the judgment. Specifically, he contends that since Merrill Lynch pleaded that the check was given on March 24, 1981, but the evidence at trial showed it was dated April 24, 1981, that the check must have been postdated. Therefore, he contends that Merrill Lynch failed to allege false statements of existing facts regarding the cheek, and thus failed to allege and prove all the necessary elements of fraud. This contention is without merit. Merrill Lynch proved that on April 24, 1981, Fortner falsely represented to it that his $68,000 check was effective payment for the margin call. Furthermore, evidence was adequately presented that Fortner knew this representation was false at the time he made it.' This representation was made with the intent that Merrill Lynch should rely and act on it, which it did to its detriment. We find nothing lacking in Merrill Lynch’s proof of fraud. As already stated, the variation in dates between pleading and proof was not substantial and therefore not fatal. Fair notice was afforded to Fortner. Point of error two is overruled.

Fortner next contends that there was either no evidence, or, in the alternative, insufficient evidence, to support several of the trial court’s findings. In addressing no evidence points of error we must view the evidence in its most favorable light in support of the trial court’s finding, considering only the evidence and inferences which support the finding. Glover v. Texas General Indemnity Co., 619 S.W.2d 400, 401 (Tex.1981); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 697-98 (1914). The findings should then be set aside only when the record discloses that the evidence offered to prove a vital fact is no more than a scintilla. However, when addressing insufficient evidence points of error, we must consider and weigh all the evidence in the case and set aside the finding only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (Tex.1951).

Fortner first challenges the court’s finding which stated that he had represented to Merrill Lynch that his check for $68,000 to it for the margin call was effective payment, i.e. that the check was good, at the time it was issued. Chris Robinson, a sales assistant for Merrill Lynch, testified that Mr. Fortner gave her the cheek on April 24, 1981. Ms. Robinson then testified that Fortner represented to her that the tendered check was effective payment for the margin call. Fortner contends, however, that his answers to Merrill Lynch’s interrogatories, introduced into evidence by Merrill Lynch, dispute this evidence since, in his interrogatories, he stated that he never represented to Merrill Lynch that there were sufficient funds in his checking account to cover the $68,000 check. In a nonjury case, the trial court is the judge of the credibility of the witnesses and of the weight to be given their testimony, since he has the opportunity to observe the demeanor of the witnesses on the stand and he may believe all, none, or part of the witnesses’ testimony. Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210, 213 (Tex.Civ.App. — Amarillo 1981, writ ref’d n.r.e.). The trial court’s findings of fact will not be disturbed on appeal if supported by any evidence of probative force. Home State Bank v. Cavett, 518 S.W.2d 584, 586 (Tex.Civ.App. — Austin 1975, no writ). The evidence is sufficient to support the trial court’s finding. Points of error three and four are overruled.

Fortner next attacks the court’s finding that Fortner knowingly and intentionally misrepresented the effectiveness of the $68,000 check, intending Merrill Lynch to rely upon such false representation, and, therefore, willfully and maliciously deceived and injured Merrill Lynch. Fortner primarily contends this evidence is insufficient to support the finding of malice by the trial court. We disagree.

Malice may be actual or implied. See Evans v. McKay, 212 S.W. 680, 689 (Tex.Civ.App. — Dallas 1919, writ dism’d). While actual malice is characterized by ill will or an intent to injure, Clements v. Withers, 437 S.W.2d 818 (Tex.1969), implied or legal malice exists when wrongful conduct is intentional and without just cause or excuse. Webb v. Cooks’, Waiters’ & Waitresses’ Union No. 748, 205 S.W. 465, 468 (Tex.Civ.App. — Fort Worth 1918, writ ref’d). The evidence adduced at trial established that Fortner gave Merrill Lynch a check for $68,000 and represented that the check was effective payment for the margin call. There was further evidence that Fortner knew the check would not clear the bank on the date it was issued. Finally, the evidence showed that Merrill Lynch was injured by Fortner’s actions due to the decrease in the market position of Fortner’s holdings between the date of the check’s issuance and its return by the bank for insufficient funds. This evidence shows intentional conduct without just cause. Accordingly, the court’s finding of malice is supported by sufficient evidence. Points of error five and six are overruled.

Fortner also challenges the trial court’s award of $59,833 in exemplary damages to Merrill Lynch based upon the willful and malicious conduct of Fortner. Fortner first contends that the evidence is insufficient to establish malice, which, he states, is a prerequisite to an award of exemplary damages in a fraud action. See Hennigan v. Harris County, 593 S.W.2d 380, 385 (Tex.Civ.App. — Waco 1979, writ ref’d n.r.e.); William B. Roberts, Inc. v. McDrilling Co., 579 S.W.2d 335, 340 (Tex.Civ.App. — Corpus Christi 1979, no writ). We disagree. We have already concluded that the evidence sufficiently established malice on Fortner’s part in this case; therefore, since malice will support an award of exemplary damages, the trial court did not act erroneously. Furthermore, evidence of conscious indifference to the rights of others is sufficient for an award of exemplary damages. Trenholm v. Ratcliff, 646 S.W.2d 927, 933 (Tex.1983). There was evidence presented at trial that Fortner was aware, at the time he gave Merrill Lynch the $68,000 check, that there were insufficient funds to cover it at the bank. He falsely represented to Merrill Lynch that the check was effective payment in order to prevent Merrill Lynch from closing out his future holdings, to the detriment of Merrill Lynch. This is some evidence to support a finding of conscious indifference by Fortner for the rights of Merrill Lynch and thereby support the court’s award to Merrill Lynch of $59,833 in exemplary damages. Points of error seven and eight are overruled.

Finally, Fortner contends that the court’s award of exemplary damages to Merrill Lynch was erroneous because Merrill Lynch only established a cause of action for breach of contract by Fortner, not fraud. Specifically, Fortner argues that since Merrill Lynch accepted the note, and Fortner then defaulted, the damage occurred as a result of the breach of the contract on the note, not from the fraud. Fortner thus contends that no malice can be shown and, therefore, as a matter of law, no exemplary damages may be awarded. We disagree.

Based upon Fortner’s brief and oral argument to this court, we conclude that Fortner’s contention is that there was an accord and satisfaction of Merrill Lynch’s cause of action for fraud against Fortner due to Merrill Lynch’s agreement to accept Fortner’s promissory note in payment of his debt to Merrill Lynch. An accord is simply an agreement whereby one of the parties undertakes to perform and the other party agrees to accept in satisfaction of a liquidated or unliquidated claim arising out of either contract or tort, something other than what the party considers himself entitled to, while a satisfaction is the execution or performance of that agreement. Blaylock v. Akin, 619 S.W.2d 207, 210 (Tex.Civ.App. — Texarkana 1981, writ ref’d n.r.e.); Harris, Upham, & Co. v. Ballantyne, 538 S.W.2d 153 (Tex.Civ.App.— Dallas 1976, no writ). Accord and satisfaction is an affirmative defense which must be specifically pleaded, Rutherford v. Page, Southerland & Page, 429 S.W.2d 602, 609-10 (Tex.Civ.App. — Austin 1968, writ ref’d n.r.e.); TEX.R.CIV. P. 94, and the burden of establishing the affirmative defense is upon the party asserting it. Harris v. Rowe, 593 S.W.2d 303, 306 (Tex.1979). Fortner failed to specifically plead accord and satisfaction as required by the rules of civil procedure, thus this affirmative defense may not be raised for the first time on appeal. Copeland Well Service, Inc. v. Shell Oil Co., 528 S.W.2d 317, 321 (Tex.Civ.App. — Tyler 1975, no writ). Accordingly, point of error nine is overruled.

As point of error ten, regarding the ex-cessiveness of the exemplary damages, was neither briefed nor argued we do not address it.

Judgment affirmed.


author: CARVER, Justice.

text:
    John Howard ABDNOR, Appellant, v. The STATE of Texas, Appellee.
    No. 05-81-01289-CR.
    Court of Appeals of Texas, Dallas.
    Oct. 18, 1984.
    Rehearing Denied Jan. 21, 1985.
    Ronald L. Goranson, Oscar H. Mauzy, Dallas, for appellant.
    S. Michael McCulloch, Hal E. Turley, for trial court judge.
    Karen Chilton Beverly, Asst. Dist. Atty., Dallas, for appellee.

      Before CARVER, ROWE and SHUM-PERT, JJ.
   CARVER, Justice.

John Howard Abdnor complains that the trial court erroneously denied him the status of an indigent to the prejudice of his appeal from a conviction of murder because he could not secure a statement of facts in support of his appeal and to demonstrate his supposed grounds of error. Abdnor prays that we correct the trial court’s error by abating Abdnor’s appeal until the statement of facts is prepared and filed. We find no error in the trial court’s ruling denying Abdnor the status of an indigent; we decline to abate Abdnor’s appeal; and, in the absence of an appellant’s brief in behalf of Abdnor urging any error in his trial and conviction, affirm Abdnor’s conviction.

Abdnor’s present complaint, by appeal, was preceded by the same complaint urged by mandamus. This court considered and denied the mandamus application on its merits. Abdnor v. Ovard, 635 S.W.2d 864 (Tex.App. — Dallas 1982). The Court of Criminal Appeals in a discretionary review disagreed with the rationale of our opinion but affirmed the denial of relief because mandamus was the incorrect method of review of the trial court’s order. Abdnor v. Ovard, 653 S.W.2d 793 (Tex.Crim.App.1983). Consequently, Abdnor now reurges his complaint as a part of his direct appeal of his trial and conviction. For this appeal, this Court has been furnished a transcript of all pleadings and orders filed or entered in the trial court; a statement of facts limited to the hearing conducted by the trial court to determine the truthfulness of Abdnor’s affidavit of indigency; and Abdnor’s “Appellant’s Brief” which is limited to the indigency issue. The appellee, the State of Texas, has responded to the indigency issue as well as urging affirmance for the absence of any ground of error complaining of Abdnor’s trial and conviction.

The record of the indigency hearing reflects the testimony of the official court reporter, who served during Abdnor’s trial and conviction, that the record was estimated at 7000 pages, costing $24,500, and that a “personal copy” had been prepared for and paid for by Abdnor’s father. The same record also reflects that Abdnor’s father testified that he was the appointed guardian of Abdnor’s “person and property”; that he, and others, had made a diligent search for “income producing assets” belonging to Abdnor but found nothing but what was shown on “that statement” (appendix 1 to this opinion); and that he had paid personally, not as his son’s guardian, for all of his son’s expenses for the attorneys and the trial and the “personal copy” of the statement of facts. The same record reflects the testimony of an accountant, working for Abdnor’s father and his insurance companies, that Abdnor’s income tax returns for 1980-79-78 were prepared by her from the insurance companies’ Internal Revenue Service report No. 1099 as to compensation paid to Abdnor; that Abdnor’s reported income was 1980 — $5,716.79, 1979 —$3,523.67, and 1978 — $4,028.41; and that she knew of no other income. Although Abdnor was the affiant whose truthfulness was under inquiry, he did not testify. Upon this record, and without specific findings having been requested or filed, the trial court denied Abdnor the status of an indigent.

As directed by the opinion of the Court of Criminal Appeals in Abdnor, supra, we must determine whether Abdnor is entitled to a free transcript of the evidence. 653 S.W.2d at 794. For such determination “no rigid standard exists.” Id. The determination of indigency, or entitlement to a free transcription, is no “mere ministerial act.” 653 S.W.2d at 794. By implication, then, such determination is “judicial” and must rest upon evidence credible to the fact finder. The proffer of such evidence is the burden of the affiant. See Zanghetti v. State, 582 S.W.2d 461 (Tex.Crim.App.1979). Such evidence must show indigency as well as due diligence in attempting to obtain a statement of facts. Castillo v. State, 595 S.W.2d 552 (Tex.Crim.App.1980); Cashion v. State, 657 S.W.2d 517 (Tex.App. —Corpus Christi 1983, pet. ref d). Indigen-cy alone, in the absence of diligence, is not enough. Castillo v. State, 571 S.W.2d 6 (Tex.Crim.App.1978). “Since the trial court did not state its reasons for denying appellant’s motion, we must uphold the trial court if its ruling is supported on either theory by the record.” Id. 595 S.W.2d at 521. Abdnor, the affiant, did not testify that he was indigent, and the only witnesses limited their testimony to as far as they knew or to what they had discovered —not that Abdnor’s affidavit of indigency was truthful which was the subject of the inquiry. The fact-finder was free to accept all, any part, or none of the testimony of these witnesses, as the “trial judge ... is the sole judge of the credibility of the witnesses and may accept or reject any part or all of the testimony given by State or defense witnesses.” Johnson v. State, 571 S.W.2d 170, 173 (Tex.Crim.App.1978). The trier of fact is not compelled to believe the testimony of a witness in a criminal case even if the testimony is not controverted. Id., quoting Porter v. State, 388 S.W.2d 422 (Tex.Crim.App.1965). The testimony as to income, even if believed, does not compel a finding of indigency of Abdnor because income alone does not determine indigency since it fails to account for assets which may not produce income. Neither does a guardian’s stated inability to find assets of his ward, even if believed, compel the fact finder to the conclusion that the ward is indigent, since a guardian cannot be said to possess all the knowledge of his ward. We hold that where the accused/affiant claims indigency but offers no testimony of his own in support thereof, the trial court is not compelled to the conclusion that the affiant’s affidavit is truthful by the testimony of third party witnesses that they do not know or cannot discover any income or assets of the affiant. Likewise, we hold that the accused/affiant who files an affidavit of indigency, but neglects to support the affidavit’s truthfulness with his own testimony, has failed to show diligence (in the form of his own testimony) to secure the very statement of facts he desires to be provided to him. Cushion, 657 S.W.2d at 521. Likewise, since ^ the! evidence shows that Abdnor’s father possessed a “personal” copy of the statement of facts and there is little doubt that Abdnor knew of the existence of his father’s “personal copy,” diligence, as required by Cashion, supra, would seem to require at least that Abdnor take the stand and testify that he asked Dad to loan him the “personal copy” to serve for the appeal and that Dad had refused.

Abdnor argues that he should neither be required, nor permitted, to testify as to his indigency since he is a person of such mentality as to cause the probate court to appoint a guardian in his behalf. We cannot agree for two reasons. First, our record reflects that Abdnor was specifically found competent to stand trial for the crime with which he was charged. Abdnor’s competency is presumed unless such hearing establishes otherwise. Article 46.02, TEX.CODE CRIM.PROC.ANN. (Vernon 1981). Since the hearing established Abdnor’s competency, his competency is presumed to continue until a subsequent hearing in the court trying his criminal case, if sought, should establish otherwise. Since Abdnor sought no additional hearing, we must presume he was still competent at the time of his indigency hearing. Second, the fact that a guardianship had been imposed upon Abdnor in the probate court would not have necessarily disqualified Abdnor as a witness in the indigency hearing. Jackson v. State, 403 S.W.2d 145 (Tex.Crim.App.1966), cert. denied, 385 U.S. 938, 87 S.Ct. 301, 17 L.Ed.2d 217 (1966). This court has held, in T.E.I.A. v. Eubanks, 240 S.W.2d 811 (Tex.Civ.App. —Dallas 1951) rev’d on other grounds, 151 Tex. 67, 246 S.W.2d 467 (1952), that a witness was not disqualified merely because it was shown that he was incarcerated (on similar findings by a Mississippi probate court) in the Mississippi State Insane Asylum, but only on a showing that his mental disorder affected the capacity to observe, recollect, or narrate the events in question. We hold that Abdnor was “permitted” to testify at his indigency hearing inasmuch as he was not disqualified as a witness, and Abdnor was “required” to so testify in the sense that he had the burden to make the showing of indigency.

Abdnor, by his failure to testify to the truthfulness of his own affidavit deprives himself even of the “prima facie” showing as bestowed upon the testimony of similar affiants in Castillo v. State, 595 S.W.2d 552 (Tex.Crim.App.1980); Zanghetti v. State, 582 S.W.2d 461 (Tex.Crim.App.1979); Barber v. State, 542 S.W.2d 412 (Tex.Crim.App.1976); and Conrad v. State, 537 S.W.2d 755 (Tex.Crim.App.1976). There does not appear to be any precedent that accords third party witnesses (not the affi-ant) “prima facie” credibility because third party witnesses cannot be shown to be in a position to observe, and thus know whether the affiant is, in fact, truthful as to his assets or income. See Johnson v. State, 571 S.W.2d 170 (Tex.Crim.App.1978).

Since the trial court was not provided any “prima facie” proof of indigency from Abdnor and since the three witnesses’ testimony did not resolve the issue, even if belief of their testimony were deemed compelled, we conclude that the trial court was entitled to hold the indigency affidavit of Abdnor not truthful and a free transcription not required.

In the absence of any brief (or supporting record) from Abdnor urging any other error committed by the trial court we affirm Abdnor’s judgment of conviction.

APPENDIX


author: PER CURIAM.

text:
    Nelly SOTO-RUPHUY, Relator, v. Honorable John G. YATES, Respondent.
    No. 04-84-00494-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 12, 1984.

      Mack Ray Hernandez, Austin, for relator.
    Janet M. Hartung, San Antonio, for respondent.
    Before CANTU, TIJERINA and DIAL, JJ.
   OPINION

PER CURIAM.

This is an original mandamus and prohibition proceeding involving the issue of whether a Texas district court may exercise its continuing jurisdiction to modify its original child custody decree concerning a child whose home state is now California. Since we hold that the respondent district judge improperly assumed jurisdiction in this custody matter, we will conditionally grant the writs of mandamus and prohibition.

Relator, Nelly Soto-Ruphuy, and Ernesto Hernandez, real party in interest, were divorced on April 4, 1977, in the 45th Judicial District Court of Bexar County, Texas. The divorce decree named relator managing conservator of the couple’s only child, Ernest. Approximately six years ago, relator and the child moved to California where they have lived ever since. The child is now in Texas because, according to relator, Ernesto has refused to allow the child to return to California when his one-month visitation period expired in August of 1984.

On July 30, 1984, relator filed a motion to modify in the 45th District Court seeking an increase in child support. Ernesto answered and filed a counterclaim seeking to have himself substituted as managing conservator. In September of 1984, Ernesto applied for emergency temporary orders to restrain relator from removing the child from the jurisdiction of the court and to exclude her from possession of or access to the child. His supporting affidavit alleged that he had been informed by relatives of relator that she planned to remove the child to Costa Rica and that before she would allow the child to live with Ernesto, she would rather see him dead. These orders were granted ex parte on September 4, 1984. The temporary orders were made a temporary injunction by an order signed September 12, 1984. Relator did not appear at the hearing either in person or by attorney, and no record was made.

On October 18, 1984, relator filed a plea to the jurisdiction and a general denial of Ernesto’s counterclaim, a motion to set aside the temporary orders, and an application for writ of habeas corpus seeking return of possession of the child. On October 30, 1984, respondent, the Honorable John G. Yates, signed an order denying all relief requested by relator.

Relator has filed in this Court a petition for writs of mandamus and prohibition. She seeks a writ of mandamus directing Judge Yates to abate the counterclaim filed by Ernesto for lack of subject matter jurisdiction and a writ of prohibition commanding Judge Yates to cease and desist from exercising jurisdiction over the counterclaim. She seeks costs of travel and litigation, including attorney’s fees, under section 11.57 of the Family Code, or that a hearing be held on this matter. She also prays for a writ of habeas corpus directing that the child be returned to her or, in the alternative, that we order a hearing by the trial court on the habeas corpus issue.

Section 11.53 of the Family Code is the jurisdictional section of the Texas version of the Uniform Child Custody Jurisdiction Act (UCCJA). Section 11.53(a) sets out the four instances when a court of this State that is competent to decide child custody matters has jurisdiction to make a child custody determination by initial decree or modification. Section 11.53(d) provides:

Except on written agreement of all the parties, a court may not exercise its continuing jurisdiction to modify custody if the child and the party with custody have established another home state unless the action to modify was filed before the new home state was acquired.

“Home state” is defined by section 11.52(5) to be “the state in which the child immediately preceeding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months ...”. It is undisputed that the child’s home state is California. There is no written agreement between the parties to litigate the custody matter in the Texas district court. Thus, unless one of the provisions of subsection (a) applies, section 11.53(d) prevents the Texas court from exercising jurisdiction in this matter. See Medellin v. Dillon, 633 S.W.2d 786, 787 (Tex.1982); Pettiette v. Morrow, 661 S.W.2d 241, 243 (Tex.App. — Houston [1st Dist.] 1983, no writ); and Campbell v. Campbell, 617 S.W.2d 795, 797 (Tex.Civ.App. — Austin 1981, writ ref d n.r.e.), all of which reach the same conclusion under the predecessor statute to section 11.53(d).

Ernesto argues that the Texas district court has jurisdiction under section 11.-53(a)(3)(B), the “emergency protection” section. That section confers jurisdiction upon a Texas court when the child is physically present in the State and “it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or there is a serious and immediate question concerning the welfare of the child[.]” It is Ernesto’s contention that there exists “a serious and immediate question concerning the welfare of the child,” in that relator plans to remove the child from the country and would rather see him dead than living with Ernesto. The “serious and immediate question” language also appears at section 14.10, the habeas corpus section, under which it often has been construed.

There is no finding in the trial court’s temporary orders that a serious and immediate question concerning the welfare of the child exists. Furthermore, there is no evidence in the record that such a condition exists. The only indication in the record of the basis for the trial court’s ruling is Ernesto’s affidavit, an affidavit based on hearsay upon hearsay. A serious and immediate question concerning the welfare of the child, as that language is interpreted under section 14.10(c), is said to contemplate a situation where the child is in imminent danger of physical or emotional harm and immediate action is necessary to protect the child. McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex.1977). The record discloses no danger of physical or emotional harm that requires immediate action to protect the child. The trial court erred in assuming jurisdiction regarding the custody issue.

Ernesto also argues that the Texas district court had jurisdiction to enter the temporary orders pursuant to sections 11.11 and 14.08(g). Section 11.11 provides for the entry of temporary orders for the safety and welfare of the child in a suit affecting the parent-child relationship. Section 14.08(g) provides that temporary orders changing custody may not be entered under section 11.11 unless the order is necessary because there is a serious, immediate question concerning the welfare of the child. A Texas court’s continuing jurisdiction to enter custody modification orders must yield to the provisions of section 11.53 if the subject of those orders is a child who has acquired a new home state. Section 11.05(a). Likewise, although relator brought suit for modification of support in the Texas district court, she did not thereby submit herself to the jurisdiction of that court under section 11.55(d) for the purpose of custody modification. As long as one party remains in the state, the Texas court retains continuing jurisdiction to modify all aspects of its decree except as provided by section 11.53(d). In child custody disputes involving interstate children, jurisdiction must first be determined by reference to the provisions of section 11.53. If the jurisdictional requirements of that section are met, the Texas court may enter temporary orders or modification orders changing managing conservatorship of the child. Sections 11.05(a) & (g), 11.11, 14.08.

Mandamus will lie when a court acts beyond its power and jurisdiction and when by so acting vacates or changes a final adjudication. Standley v. Stewart, 539 S.W.2d 882, 883 (Tex.1976). The writ of prohibition may be issued to prevent an inferior tribunal from exercising a jurisdiction which it has no lawful right to exercise. Humble Exploration, Inc. v. Walker, 641 S.W.2d 941, 943 (Tex.App. — Dallas 1982, no writ); Stone v. Kuteman, 150 S.W.2d 107, 109 (Tex.Civ.App. — Amarillo 1941, no writ).

Judge Yates is directed to vacate the temporary orders entered September 12, 1984, to refrain from assuming jurisdiction over Ernesto’s counterclaim, to entertain relator’s writ of habeas corpus under the guidelines of section 14.10 and McElreath v. Stewart, supra, and to hold a hearing on costs and attorney’s fees, if any, to be awarded under section 11.57. The writs of mandamus and prohibition will issue only if he declines or refuses to do so.

      . It appears from the record and from relator’s petition that neither she nor her attorney appeared at the hearing on the temporary orders due to Ernesto's failure to provide her with adequate notice of that hearing. TEX.FAM. CODE ANN. §§ 11.54, 11.55 (Vernon Supp. 1984). The record indicates that service of the notice was provided by certified mail to relator’s attorney in Texas only six days prior to the hearing. Assuming the Texas court had jurisdiction in the first place, this would not satisfy the requirement of “reasonable notice and opportunity to be heard.” Section 11.54. Nor was notice provided in sufficient time to allow for the filing of an answer prior to the hearing. Section 11.55. As will be shown, infra, relator did not submit herself to the jurisdiction of the Texas district court for the purpose of custody modification by the filing of her motion to modify child support. See section 11.55(d).

      . All statutory references are to TEX.FAM. CODE ANN. (Vernon Supp.1984).

      . Act of June 13, 1979, ch. 584, § 3, 1979 Tex. Gen.Laws 1201, 1202 (formerly TEX.FAM.CODE ANN. § 11.052) repealed by Uniform Child Custody Jurisdiction Act, ch. 160, § 10, 1983 Tex. Gen.Laws 691, 709.


author: AKIN, Justice. GUILLOT, Justice,

text:
    SAFEWAY STORES, INC., Appellant, v. CERTAINTEED CORPORATION, Certainteed Products Corporation, Herman L. Smith, Gunn & Briggs, Inc., and Home Insurance Company, Appellees.
    No. 05-83-00949-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 13, 1984.
    Rehearing Denied Jan. 21, 1985.
    Dissenting Opinion March 7, 1985.

      W.B. West, III, Jack D. Eades, Wm. H. Clark, III, Mike M. Tabor, Dallas, for appellant.
    Robert M. Greenberg, Hollye Fisk, Dallas, George A. Staples, Hurst, Russell W. Schell, Dallas, for appellees.
    Before AKIN, SPARLING and GUIL-LOT, JJ.
   AKIN, Justice.

Our opinion in this case, issued September 12, 1984, is hereby withdrawn and we substitute the following in its place.

Safeway appeals from an instructed verdict, contending that the trial court erred in instructing a verdict because the evidence presented fact issues for the jury’s determination with respect to a breach of an implied warranty of merchantability by Certainteed and as to negligence, as well as breach of warranties, by Herman L. Smith and Gunn & Briggs. We hold that Safeway’s cause of action against Certainteed is barred by limitations. TEX.BUS. & COM.CODE § 2.725 (Vernon 1968). Accordingly, we affirm the trial court’s judgment as to Certainteed. However, we reverse and remand as to Smith, Home Insurance, and Gunn & Briggs because we hold that there was evidence which raised fact issues for the jury’s determination as to breach of warranties by these appellees and as to their alleged negligence.

In 1970, Safeway contracted with Smith to build a warehouse. The roofing subcontractor, Gunn & Briggs, used products manufactured by Certainteed. Home Insurance Company wrote the pérformance bond on the project. By 1979, severe leaks in the roof prompted Safeway to hire Construction Consultants, Inc., to inspect the roof and make a report. Construction Consultants reported that the roof would have to be replaced. In 1980, Safeway filed suit alleging breach of an implied warranty of merchantability by Certainteed and negligence, as well as breach of warranties, by Smith and Gunn & Briggs. The trial court granted appellees’ motion for instructed verdict.

Safeway first contends that the court erred in instructing a verdict, based on limitations, in favor of Certainteed because an implied warranty existed which extended to the future performance of the roofing material. In this respect, Safeway introduced an advertisement by Certain-teed containing the language “bondable up to 20 years” and now argues that this was an implied warranty extending to future performance. We cannot agree. TEX. BUS. & COM.CODE § 2.725 provides:

(a) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued....
(b) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered. (Emphasis added).

Under the language of this section, the “discovery rule” can only be applicable if a warranty “explicitly extends to future performance.” An implied warranty, by its very nature, can not explicitly extend to future performance. Clark v. DeLaval Separator Corp., 639 F.2d 1320 (5th Cir.1981); Southerland v. Northeast Datsun, Inc., 659 S.W.2d 889 (Tex.App. — El Paso 1983, no writ). Thus, contrary to Safeway’s contentions, limitations began to run in 1970 when the roofing material was delivered. Accordingly, we hold that the lawsuit in 1980, more than four years after delivery, is barred.

We note, however, that, although Safeway has consistently maintained that its cause of action against Certainteed was for breach of an implied warranty, Certain-teed in its rejoinder brief commented that Safeway actually appeared to be proceeding upon an express warranty theory. Because the trial court has instructed a verdict, we must view the evidence in the light most favorable to Safeway. Henderson v. Travelers Insurance Co., 544 S.W.2d 649 (Tex.1976). Additionally, we must liberally construe Safeway’s pleadings in the absence of special exceptions. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). However, even if we assume that Safeway’s pleadings were sufficient to state a claim based on Certainteed’s breach of an express warranty, we hold that the instructed verdict was proper because there was no evidence that the warranty was breached.

The express warranty, if any, in the instant case is that the roof was “bondable for 20 years.” On its face, this language is unambiguous and is susceptible to but one reasonable interpretation: that the roof was of sufficient quality at the time of delivery that a twenty year bond on it could be obtained. In this respect, Safeway produced no evidence that it could not obtain a bond on the roof. Accordingly, since no evidence exists of a breach of the alleged warranty, we hold that the instructed verdict against Safeway on this issue was in order as a matter of law. Consequently, we need not reach the question of whether Safeway’s right to proceed on a breach of express warranty claim was barred by the statute of limitations as was its right to proceed on a theory of breach of an implied warranty.

Next, Safeway argues that the trial court erred in instructing a verdict for Smith and Gunn & Briggs because the evidence raised fact issues as to breach of a warranty to install the roofing material in a good and workmanlike manner. As to workmanship, Schreiber, Safeway’s expert witness, answered “No” to the question “... was the roof ... constructed in a good and workmanlike manner and [with] good materials?” The contractors argue that this answer is ambiguous because the question asks about both workmanship and materials. Because the court instructed the verdict, we must view the answer most favorably to Safeway. Henderson, 544 S.W.2d at 650. In this respect, Schreiber, who was properly qualified as an expert, testified that the entire roof had to be replaced due to the leak and that the cost of replacement would be $450,000.00. We conclude, therefore, that Safeway was entitled to have the issues of negligence and of warranties determined by the jury.

We now turn to appellees’ argument that, since Safeway had the burden to apportion the damages between them, the instructed verdict in their favor should be affirmed. We cannot agree. Instead, we hold that, because all of the appellees’ negligence produced a single injury, the burden was upon the appellees to adduce evidence with respect to that damage to be apportioned to each defendant. See Johnson v. Willis, 596 S.W.2d 256, 263 (Tex.Civ.App. — Waco), writ refd n.r.e. per curiam, 603 S.W.2d 828 (Tex.1980).

Because we reverse as to Smith, we must also reverse as to Home. We do not agree with Home’s contention that, because its bond prohibited suit after two years from the day on which the final payment fell due, Safeway’s suit is barred by limitations. TEX.REV.CIV.STAT.ANN. art. 5545 (Vernon 1958) requires the limitations period to be no less than two years and the period does not begin to run until the day after the triggering event. E.g. Home Ins. Co., New York v. Rose, 152 Tex. 222, 255 S.W.2d 861, 862 (1953). The two year period provided for in Home’s performance bond began to run from the day o/the triggering event, thus shortening by one day the limitations period mandated by article 5545. Consequently, the limitation in the bond is void and the general four year statute of limitations applies. TEX. REV.CIV.STAT.ANN. art. 5527 (Vernon Supp.1984); United States Fidelity and Guaranty Co. v. Eastern Hills Methodist Church, 609 S.W.2d 298, 300 (Tex.Civ.App. —Fort Worth 1980, writ ref’d n.r.e.). This period of limitations did not begin to run until the leaks appeared. Id. at 300.

On rehearing, Home complains of our reliance on the result in Eastern Hills, arguing that the court there failed to adequately state a rationale for applying the discovery rule to a surety. However, we find additional support for our holding in Crawford v. Lawyer’s Surety Corporation, 321 S.W.2d 640 (Tex.Civ.App. — Austin 1959, writ ref’d n.r.e.). That case concerned a suit against a surety which was obligated to perform on a bond in the event the principal failed to do so. There, the court held that the cause of action accrued against the surety at the time the principal failed to pay the obligee’s claim. Crawford, 321 S.W.2d at 642. Similarly, in the present case, Home obligated itself to reimburse Safeway for damages resulting from Smith’s defaults under the construction contract which, under the terms of the bond, also provided that Home was only obligated in the event that Smith failed to reimburse Safeway for such damages. In view of these provisions in the bond and of the holding in Crawford, Safeway’s cause of action against Home could not have accrued before the breach of the construction contract was discovered. Safeway presented evidence that the leaks were first discovered in 1977; consequently, if this is true, Safeway was not barred from bringing suit in 1980, which was within four years of discovery.

With respect to costs, we tax one-third of the costs against Smith, one-third against Gunn & Briggs, one-sixth against Home, and one-sixth against Safeway. We charge Home with a lesser portion of the costs because it neither allegedly breached a warranty nor committed negligence. We tax less to Safeway than to the contractors because, although we affirm the trial court’s judgment as to Certainteed, we reverse the judgment in favor of Smith, Home, and Gunn & Briggs and remand Safeway’s causes of action against these defendants to the trial court for further proceedings. All motions for rehearing are overruled.

GUILLOT, J., dissenting.

GUILLOT, Justice,

dissenting.

I withdraw my former dissenting opinion of October 2, 1984, and the following is now my dissenting opinion.

I respectfully dissent regarding the disposition of the majority as to the claim of Safeway against Certainteed and concur with the holdings as to the claims against the other appellees, and would reverse and remand for a new trial.

In its first point of error, Safeway contends that the court erred in granting an instructed verdict — based on limitations — in favor of Certainteed because the evidence raised fact issues for the jury. The statute of limitations applicable to Safeway's cause of action against Certainteed is governed by TEX.BUS. & COM.CODE § 2.725 (Vernon 1968). I quote § 2.725 in pertinent part:

(a) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued....
(b) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

In passing on Safeway’s first point of error, the evidence must be viewed in the light most favorable to Safeway and discard all contrary evidence and inferences. Henderson v. Travelers Insurance Co., 544 S.W.2d 649 (Tex.1976). In its pleadings, Safeway alleged that Certainteed had breached implied warranties of merchantability and fitness. Safeway also alleged that Certainteed had made a representation that the roof was leak-free and adequate roofing for twenty years and that Safeway discovered the falsity of this representation in 1979.

As to any express warranty, if it explicitly extended to future performance of the goods, then the discovery rule would apply, and limitations would not have begun to run until the breach was or should have been discovered. Safeway introduced advertisements by Certainteed containing the language “bondable up to 20 years.” Although Safeway pled the “twenty year” language as constituting an implied representation, nevertheless, the facts pled and the evidence presented established that Safeway relied on an express warranty, if anything. The court must look to the facts pled, Dixon v. Alford, 333 S.W.2d 470, 471 (Tex.Civ.App. — Amarillo 1960, no writ), and apply the proper rule of law. Lyon Van Lines, Inc. v. Ogden, 503 S.W.2d 632, 636 (Tex.Civ.App. — Houston [1st Dist.] 1973, no writ). Safeway’s pleadings should be liberally construed in its favor, in absence of any special exceptions. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). The petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases its claim. Roark, 633 S.W.2d at 810. Moreover, Certainteed was not misled by Safeway’s characterization, as described in its brief, of the “bondable up to twenty years” language as an implied warranty. See Moore v. Puget Sound Plywood, Inc., 214 Neb. 14, 332 N.W.2d 212, 215 (1983).

I note that, on its face, this language extends to future performance. “Up to twenty years” means that the roof was bondable from a minimum of one year up to a maximum of twenty years depending on when the bond was purchased. Hence it is a warranty explicitly extending into the future. I would hold that this representation is an express warranty which explicitly extends to future performance as a matter of law, and meets the requirements of TEX.BUS. & COM.CODE § 2.725(b) (Vernon 1968). Further, the evidence at least raised fact issues for the jury to decide as to whether the roof was “bondable up to twenty years,” and as to when Safeway discovered any breach of this express warranty for purposes of the triggering of the period of limitations. Accordingly, I would reverse and remand for a determination by a jury of these issues.

I concur with the majority’s treatment of Safeway’s points of error dealing with Smith, Gunn & Briggs, and Home. Thus, I would reverse and remand as to Smith, Gunn & Briggs, Home, and Certainteed.

Because I would reverse as to Smith, I would reverse as to Home which rises or falls with Smith.

      . We note that our holding in Vaughn Building Corp. v. Austin Co., 620 S.W.2d 678 (Tex.Civ. App. — Dallas 1981), aff'd 643 S.W.2d 113 (1983), does not control this case. Vaughn was a suit for breach of express and implied warranties in a contract for construction of a building, to which the U.C.C. is not applicable. This case, on the other hand, concerns the sale of goods and, consequently, is governed by the U.C.C.


author: PER CURIAM. KENNEDY, Justice, BENAVIDES, Justice,

text:
    Naomi Augustine SPELLMAN, et al., Appellants, v. AMERICAN UNIVERSAL INVESTMENT COMPANY, et al., Appellees.
    No. 13-82-329-CV.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 28, 1984.
    Rehearing Denied Jan. 24, 1985.

      Patton G. Lochridge, McGinnis, Lo-chridge & Kilgore, Austin, for appellants.
    Frank Honea, Dallas, for appellees.
   OPINION

PER CURIAM.

Appellants seek to rescind or reform a Mineral Deed into which they were allegedly induced to enter because of fraudulent misrepresentations made by appellees. Ap-pellees deny wrongdoing and contend that appellants ratified the agreement. The trial court rendered a take-nothing judgment against appellants. We affirm the judgment of the trial court.

In late August of 1978, appellees sought to purchase mineral interests in land from appellants Mrs. Rabel, Mrs. Hurley, and Mrs. Spellman, who testified that they were unknowledgeable in such matters. The negotiations prior to the transaction therefore took place between Mr. Burl Swafford, appellees’ representative, and Mr. Frank Spellman, an independent oil and gas landman and husband of one of the appellants. Mr. Swafford and Mr. Spell-man agreed that appellants would sell one half of the minerals they owned. Since appellants owned only 16/28 of the minerals, the total minerals sold was alleged to be 8/28. Approximately two weeks later, Mr. Swafford produced another contract for appellants to sign. Mr. Spellman was out of town; when Mrs. Spellman telephoned him to relate her confusion about the new deal, Mr. Spellman told her to sign the deal he had arranged with Mr. Swaf-ford. On September 12, 1978, appellants signed a contract under the terms of which they conveyed an undivided one-half of the minerals that might be produced from their tract of land. Appellants testified that they thought that they were selling only one-half (8/28) of their interest in the minerals, rather than one-half (14/28) of the entire interest; they learned of their mistake approximately three weeks later. Appellants were left with only 2/28 of the minerals. Mrs. Rabel conveyed her interest to Mrs. Hurley and Mrs. Spellman in October of 1978.

The record contains a document entitled “Rental Division Order with Ratification” which was signed by Mrs. Hurley and Mrs. Spellman in December of 1979; this document stated that appellees owned 14/28 of the minerals, and that Mrs. Hurley and Mrs. Spellman each owned 1/28. It is undisputed that Mrs. Hurley and Mrs. Spell-man also signed a Gas Division Order in April of 1980, and that they received payment for delay rentals from the Rental Division Orders and began receiving checks for royalties. Appellants testified that they did not intend to affirm the transaction by signing the Division Orders; however, the jury found that appellants “executed the subsequent division orders with intent to accept [appellee’s] claim to title to the minerals under the Mineral Deed.”

Appellants first contend that the trial court erred by denying their cause of action for rescission of the Mineral Deed. Appellants argue that appellees’ defense of “ratification” was not established because the signing of Division Orders constitutes ratification only in certain circumstances not present in this case. Appellants specifically argue (1) that because none of the Division Orders referred specifically to the Mineral Deed, the royalties received were attributable to the interest retained by appellants, and that the delay rentals were due them as a matter of right, because they would have received them even if the challenged Mineral Deed had never existed, and (2) that the only evidence of ratification was the signing of the Division Orders and acceptance of delay rentals; thus, there was no evidence that appellants intended to ratify the Mineral Deed. Appellants insist that to hold otherwise would force them to either accept the payments or reject the deed, a dilemma inapposite to true ratification, which operates to prevent a party from setting aside a transaction and accepting the benefits of the transaction.

“The right to rescind a contract may be lost by action and conduct which shows an affirmation or ratification of the contract after knowledge of facts which are grounds for rescission. One who has the right to rescind after acquiring knowledge thereof may exercise that right or retain his rights and benefits under the contract. He cannot have both.” Thus, where parties by their conduct and action recognize contracts as subsisting and binding, they thereby affirm the contracts after acquiring knowledge of the facts which entitled them to rescind. This is the equivalent of a ratification of the contract. Payne v. Baldock, 287 S.W.2d 507 (Tex.Civ.App. — Eastland 1956, writ ref’d n.r.e.).

“Ratification is the adoption or confirmation by a person with knowledge of all material facts of a prior act which did not then legally bind him and which he had the right to repudiate. [Citation omitted.] Ratification occurs when one, induced by fraud to enter into a contract, continues to accept benefits under the contract after he becomes aware of the fraud or if he conducts himself in such a manner as to recognize the contract as binding.... Once a contract has been ratified by the defrauded party ..., the defrauded party waives any right of rescission or damages.” Wise v. Pena, 552 S.W.2d 196 (Tex.Civ.App.—Corpus Christi 1977, writ dism’d).

An express ratification is not necessary; any act based on a recognition of the contract as subsisting or any conduct inconsistent with an intention of avoiding it has the effect of waiving the right of rescission. Rosenbaum v. Texas Bldg. & Mort. Co., 140 Tex. 325, 167 S.W.2d 506 (1943); Newsom v. Starkey, 541 S.W.2d 468 (Tex.Civ.App.—Dallas 1976, writ ref’d n.r.e.); Guion v. Guion, 475 S.W.2d 865 (Tex.Civ.App.—Dallas 1971, writ ref’d n.r. e.). Thus, any retention of the beneficial part of the transaction affirms the contract and bars an action for rescission, as a matter of law. Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892 (1960); Rosenbaum at 508.

In addition, mental intent or reservation does not affect determination of the question. Oram v. General American Oil Company of Texas, 513 S.W.2d 533 (Tex.1974); Goldring v. Goldring, 523 S.W.2d 749 (Tex.Civ.App.—Fort Worth 1975, writ ref d n.r.e.).

Even if appellants stated that they did not intend to ratify the lease by accepting rental payments, the acceptance of the payments was inconsistent with the intention to avoid the lease. The acceptance of the payments recognized the lease as subsisting and binding; the effect is to waive or abandon any right of rescission or of attack upon the initial invalidity, if any, of the lease. Oram at 534.

Thus, the acceptance of the royalty checks by appellants with knowledge that they were in payment for royalty from the mineral deed, when considered with the fact that they knew of the Division Orders, constituted a ratification of the action of appellees. Yelderman v. McCarthy, 474 S.W.2d 781 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref’d n.r.e.); Leopard v. Stanolind Oil & Gas Co., 220 S.W.2d 259 (Tex.Civ.App.—Dallas 1949, writ ref'd n.r. e.). See also Loeffler v. King, 149 Tex. 626, 236 S.W.2d 772 (1951); Goldring at 761.

Other courts have held that, when the validity of a lease contract is in dispute, execution of a Division Order and the acceptance of payments under it operate as ratification of the lease referred to in the order. Gulf Oil Corporation v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711 (1941); City National Bank in Wichita Falls v. Bradshaw, 433 S.W.2d 955 (Tex.Civ.App.— Fort Worth 1968, no writ); Texas & Pacific Coal & Oil Co. v. Kirtley, 288 S.W. 619 (Tex.Civ.App.—Eastland 1926, writ ref’d).

Appellants contend that the case of Westbrook v. Atlantic Richfield Company, 502 S.W.2d 551 (Tex.1973) held that “a subsequent instrument may ratify a prior invalid instrument only if the second instrument makes clear and unambiguous reference to the first instrument” and that, as a matter of law, “execution of a rental division order which does not refer to the invalid Mineral Deed and which does not result in the receipt of benefits attributable to the transaction allegedly ratified.... does not constitute ratification.” Appellants strongly urge that, since the Division Orders in the case before us contained no “specific reference to the instrument ratified,” the Westbrook holding is dispositive of this action.

The issue in Westbrook was whether a party’s ratification of certain agreements in November of 1964 revived an oil and gas lease which had expired in April of 1962. The scope of Westbrook was restricted to applying “the rule of revivor by subsequent instruments;” thus, the Court found that the 1964 agreements failed to revive the expired lease because:

“There is no direct statement of ratification in words clear or otherwise. Nor is there any inference of validity of the [expired] lease or even of its existence.”

We do not find that the Westbrook opinion controls the issues before us.

We hold that the record contains sufficient evidence to justify submitting the pleaded defense of ratification to the jury, and to justify the granting of appel-lees’ motion for judgment on the basis of the jury’s finding that appellants ratified the Mineral Deed. Appellants’ action for rescission of the Mineral Deed was properly denied, and their first, third, and fourth points of error are overruled.

In their second and fifth points of error, appellants contend “that the Mineral Deed should be reformed on the basis of unilateral mistake coupled with knowledge of the mistake and inequitable conduct on the part of [appellees].” Appellants argue that the “jury returned answers favorable to [appellants] on all of the issues necessary to support reformation of the Mineral Deed to reflect the true agreement of the parties,” and allege that ratification was not raised as a defense to reformation.

The jury returned its answers to the special issues on August 19, 1982, and a hearing on the motions for judgment was held on September 10, 1982. The trial court then granted appellees “leave to file a trial amendment ... conforming the pleadings to the evidence on issues tried by consent of the parties,” and noted that the amendment would not surprise or prejudice appellants. The amendment charged that appellants “have waived any right to rescission or reformation by reason of ratification of the Mineral Deed” [emphasis added]. In their sixth point of error, appellants contend that leave to amend the pleadings should not have been granted after the verdict of the jury had been returned.

In the absence of fraud, a written contract will not be reformed in equity unless there is a mutual mistake of the parties. However, “[K]nowledge by one party of the other’s mistake regarding the expression of the contract is equivalent to mutual mistake.” Thus, “[w]here there has been a mistake of one party, accompanied by fraud or other inequitable conduct of the remaining party, the instrument may be made to conform to the agreement or transaction entered into, according to the intention of the parties.” The Cambridge Companies, Inc. v. Williams, 602 S.W.2d 306 (Tex.Civ.App. — Texarkana 1980, aff'd on other grounds, 615 S.W.2d 172 (Tex.1981)).

Under the general rule, the elements of actionable fraud are: (1) that a material representation was made; (2) that it was false; (3) that when the speaker made it he knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by the party; (5) that the party acted in reliance upon it; and (6) that the party acting upon the representation thereby suffered injury. Stone v. Lawyers Title Insurance Corporation, 554 S.W.2d 183 (Tex.1977).

The jury found that appellees materially misrepresented to appellants that (a) the Mineral Deed reflected the agreement reached between Mr. Swafford and Mr. Spellman and (b) by signing the Mineral Deed, appellants “did not sell 8/28 of the minerals, but in fact would sell one half of their minerals.” The jury further found that these misrepresentations were made with the intention to induce appellants to sign the deed; that appellants justifiably relied on the misrepresentations and were injured as a result of that reliance; that appellees knew that their misrepresentations were false; and that appellees knew of appellants’ mistake at the time the deed was executed. The jury concluded that the true agreement of the parties was for appellants to sell 2/7 (8/28) of their interest; that the deed was acquired from appellants through an unconscionable course of conduct; and that enforcement of the deed as made would be unconscionable because appellants’ “mistake is of so great a consequence.” These findings support appellants’ cause of action to reform the deed.

Appellants note that ratification was never pleaded by appellees as a defense to reformation, and contend that they were unaware that appellees were asserting this defense until the post-verdict pre-judgment hearing.

It is clear that sufficient evidence was adduced at trial to show that appellant’s cause of action for rescission was barred by ratification; the question remains whether the jury finding that appellants executed the Division Orders “with intent to accept [appellees’] claim to title to the minerals under the Mineral Deed” may be applied also to reformation, to which no defense of ratification was pleaded.

Appellees plead ratification as follows:

“Plaintiffs have waived any right to rescission by reason of ratification of the Mineral and Royalty Deed to American Universal Investment Company through their execution of deeds by gifts and division orders and their acceptance of payments of delay rentals and royalties based on such deeds and division orders with prior knowledge of all of the alleged wrongdoing set forth in Plaintiffs First Amended Petition.”

Appellant’s objection to the ratification issue was as follows:

“The final one I have goes to Special Issue No. 17 as to ratification. I believe that although the Special Issue itself properly sets out the test of intent for ratification; however, there has been no evidence of intent, there being no evidence to support an answer of ‘yes,’ no evidence of attempt to ratify. So, there is nothing to support a ‘yes’ answer. Further, there is no pleadings [sic] to support the submission of plaintiffs’ intent, and did not plead intent in his recent pleading.”

This objection fails to point out the deficiency of the pleadings now urged by appellants. Rule 274 of the Texas Rules of Civil Procedure requires a party to “point out distinctly the matter to which he objects and the grounds of his objection.” From the record as a whole, it is clear that appellees were relying throughout the trial on ratification as a defense to appellants’ claim of rescission and reformation. When the Court prepared the charge containing the ratification issue, appellants were required to distinctly and specifically state their objection or the objection is waived. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 938 (Tex.1980).

Appellants need not have objected to the trial evidence on ratification because that evidence was properly admitted on ap-pellees’ pleaded defense to rescission; but, by failing to point out specifically and distinctly the lack of pleading at the time the issue was submitted, appellants deprived appellees of their opportunity to seek a trial amendment at that time. See Murray v. O & A Express, Inc., 630 S.W.2d 633, 637 (Tex.1982). Thus, even assuming that appellees’ plea of ratification did not assert a defense against reformation because of the phrase “to rescission,” the trial court did not abuse its discretion in allowing the post-verdict trial amendment. Appellants’ second, fifth and sixth points of error are overruled.

The judgment of the trial court is AFFIRMED.

KENNEDY, Justice,

dissenting.

I respectfully dissent. I would hold that the failure of appellees to plead ratification as a defense to reformation should have denied them a jury issue on this point. The majority holds that the issue was tried by consent since evidence was offered to show ratification as a defense to rescission, which was pled, and that the same evidence should be considered on the question of reformation, to which was not plead as a defense.

The case of Musso v. Cronley, 422 S.W.2d 840 (Tex.Civ.App. — Waco 1967, no writ) involved a boundary dispute. Appellants pleaded that they acquired title to the contested land under a 25-year statute of limitations, but failed to plead that they acquired title by adverse possession under a ten year statute. Appellant argued that the issue was tried by implied consent, but the Court stated:

The purpose of Rule 94 is to give the opposing party notice of the defensive issues to be tried. Petroleum Anchor Equipment, Inc. v. Tyra (Tex.Sup., 1967) 419 S.W.2d 829, 835; Reid v. Associated Employers Lloyds, Tex.Civ.App., 164 S.W.2d 584, writ ref. Appellee was given notice that evidence would be adduced on the 25-year statute, not the other. The evidence offered was admissible under the pleaded statute, and was relevant to the issue pleaded. It was not incumbent on appellee, consequently, to object to the evidence on the ground it was not within the pleading in order to avoid waiver. Such an objection would have been untenable since there was pleading to support admission of the evidence.

Musso, 422 S.W.2d at 841. Similar holdings are found in the cases of Watts v. Watts, 563 S.W.2d 314 (Tex.Civ.App. — Dallas 1978, writ ref’d n.r.e.), Yarbrough v. Cooper, 559 S.W.2d 917 (Tex.Civ.App.— Houston [14th Dist.] 1977, writ ref'd n.r.e.).

Appellants were not required to speculate whether appellees intended the evidence on ratification to apply to the cause of action for reformation as well as that for rescission, especially when appellees could have resolved the matter through proper pleading. Appellants were entitled to infer from appellees’ pleading that the reformation action was being defended solely on the elements necessary for appellees to prove ratification in order to establish their right to recovery.

Ratification is a plea in avoidance, and thus is an affirmative defense which must be pleaded unless the issue was tried by consent. Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829 (Tex.1967); Royal Typewriter Co. v. Vestal, 572 S.W.2d 377 (Tex.Civ.App. — Houston [14th Dist.] 1978, no writ). I would hold that appellants need not have objected to the trial evidence on ratification, because that evidence was properly directed toward ap-pellees’ pleaded defense to rescission. The fact that the same evidence could also have constituted a defense to reformation does not mean that appellants waived their objection. Appellants need only object to evidence properly admitted on a properly pleaded defense in order to avoid trying an unpleaded issue by “consent.”

I would hold that none of the evidence on ratification was properly attributable to appellant’s cause of action for reformation because appellee failed to plead ratification as a defense to reformation. The trial court’s decision to permit appellees to file a post verdict trial amendment on grounds that the issue was tried by consent therefore constituted an abuse of discretion. I would reverse the judgment of the trial court and order that the mineral deed be reformed to reflect that appellees own only 8/28 of the mineral interest in the land.

BENAVIDES, Justice,

dissenting.

I respectfully join in the dissenting opinion by Associate Justice Noah Kennedy.