Opinion
No. B-986.
October 9, 1968. Rehearing Denied December 4, 1968.
Appeal from District Court No. 11, Harris County; Moorhead, Judge.
David J. Nagle, Houston, for petitioner.
Fulbright, Crooker, Freeman, Bates Jaworski, Royce R. Till, Sam W. Cruse and Thomas P. Sartwelle, Houston, for respondent.
A majority of the Court is of the opinion that the decision of the Court of Civil Appeals in this case, reported in 428 S.W.2d 358, is in conflict with the opinions of this Court in McKee, General Contractor, Inc. v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex. 1963); and Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390 (Tex. 1967). Accordingly, the judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed. Rule 483, Texas Rules of Civil Procedure.