Young v. Gardner

507 S.W.2d 250, 1974 Tex. App. LEXIS 2429

Opinions

EVANS, Justice.

This case is the result of an unfortunate dispute between neighboring owners, the Youngs and Gardners.

Appellants John Young and wife, Betty Young, brought suit against appellees Elmer C. Gardner and wife, Thelma K. Gardner, to rescind an agreement to amend certain building line restrictions; for in-junctive relief, and, alternatively, for damages. Appellees by cross-action sought in-junctive relief, damages and correction of deed description. At the conclusion of the evidence, appellants’ case was withdrawn from the jury and judgment entered that appellants take nothing. Special issues were submitted to the jury on appellees’ cross-action but so far as material here, the jury’s findings did not constitute the basis of the trial court’s judgment. The trial court entered judgment in favor of appellees, as a matter of law, granting certain injunctive relief and requiring delivery of a correction deed from appellants. A majority of the court has concluded that ■the case must, in part be affirmed, and, in part, be reversed and remanded for a new trial.

In January, 1966, appellants John and Betty Young acquired a tract of approximately two acres of expensive residential land in the Tall Timbers section of River Oaks in the City of Houston. In October, 1966, appellants subdivided this tract into two parcels, Tract A and Tract B, and in their Declaration of Subdivision, they subjected the property to the following restrictions :

“1. No overhead utility lines such as telephone, lights, etc. shall be permitted to cross over any portion of Lots A and B except as may be in existence at the time hereof.

“2. All utility, garage or service areas shall be screened with a brick wall sufficient in height to obscure the presence of such utility, garage or service area from the other residents as may be located on said Lots A and/or B.

“3. No structure shall be built on Lot B nearer than 40 feet from the South boundary line of said Lot or nearer than 60 feet from the west boundary line of said lot.

“4. No use shall be made of the 40' easement adjoining Lots A and B other than as a driveway or drive area and no use shall be made thereof or any structure placed thereon which would in any manner limit the use of such 40' easement for ingress and egress of vehicular traffic to Lot A.”

A subsequent Declaration was filed by the Youngs in June, 1967, for the asserted purpose of correcting certain errors in the metes and bounds description of the property and for the purpose of reserving to the Youngs a 10-foot easement for driveway purposes across Tract B. This Declaration was filed after the Youngs had entered into earnest money agreement with the Gardners for the sale of Tract B to the Gardners but before the closing of the sales transaction which occurred in July, 1967.

The relationship of the two tracts to each other and to the 10-foot and 40-foot access easements leading to Westlane, a public street, are shown on the reproduction of the plat attached to the June, 1967 Declaration of Subdivision. The 40-foot easement was the subject of prior litigation in Anderson v. Tall Timbers Corporation, 378 S.W.2d 16 (Tex.Sup.), which determined that the easement had not been dedicated as a public street.

Appellants John and Betty Young delivered their deed to the appellees Elmer C. and Thelma Gardner, on July 10, 1967, describing Tract B by metes and bounds, expressly subjecting it to all restrictions, covenants, conditions, easements and reservations shown of record and reserving specifically a 10-foot easement for driveway purposes along the southerly line of the tract as shown on the above mentioned plat.

In August, 1967, appellee Gardner sought to obtain an amendment to the recorded restrictions so as to permit the construction of his home at a point 15 feet, rather than 40 feet from the south line. and 35 feet, rather than 60 feet, from the west line. To accomplish this purpose, he had prepared and himself presented to the Youngs, a plat with an agreement typed thereon which bears a typewritten date of August 25, 1967. The evidence is uncontroverted that Gardner also prepared and presented to the Youngs, in connection with the aforementioned plat, two elevation drawings depicting separate side views of the Gardners’ proposed home. On one of these drawings Gardner made a notation, “This is what the Youngs see,” indicating a view of the Gardners’ proposed home from the west line of the Gardner tract; on the other, he made the notation, “This is what the guests see,” indicating a view from the driveway leading to the Youngs’ home. The plats and drawings referred to above are shown on the following page.

In September or early October, 1967, ap-pellee Gardner commenced construction of his home on Tract B. In late October, 1967, Gardner wrote to Young, stating his understanding with respect to various matters and enclosing a formal instrument to be executed and acknowledged by Young and Gardner and their respective wives. This instrument purported to correct certain errors in the metes and bounds description of Tract B, and to amend the recorded building line restrictions in accordance with the distances shown in the August 25, 1967, document. The appellants Young refused to execute this instrument and construction of the Gardner home continued. As the construction of the carport and service area progressed, the Youngs became more dissatisfied with its location and appearance. A photographic picture of the carport, as constructed, is also shown on the following page. After fur-

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ther discussions and correspondence between the parties, appellants subsequently-filed this action seeking temporary and permanent injunction. The hearing on appeal of the trial court’s order refusing temporary injunction and granting injunctive relief to the Gardners is reported in Young v. Gardner, 435 S.W.2d 192 (Tex.Civ.App. —Houston [14th] 1968, n. w. h.).

In their first amended petition the Youngs alleged that the Gardners, prior to the commencement of construction of their residence indicated to the Youngs they desired an amendment of the restrictive covenants affecting their Tract B, and exhibited to the Youngs drawings of their proposed improvements; that Gardner represented to and assured the Youngs that if they would agree to such desired amendment, all utility, garage and service areas on the Gardners’ tract would be screened with a brick wall sufficient in height to obscure the presence of such areas from the Youngs’ land and from the driveway easements south of the Gardners’ tract; that in reliance on such drawings, representations and assurances the Youngs had indicated to the Gardners they would be willing to join in an instrument amending the building line restrictions and accordingly approved such change as shown by the instrument of August 25, 1967. The Youngs further alleged that contrary to such drawings, representations and assurances, the Gardners had proceeded to construct their improvements so that there was an open and unscreened vehicle parking and service area, and that the carport and servants’ quarters were covered with wood plank instead of a brick wall fronting on said 40-foot easement. The Youngs asked that the instrument of August 25, 1967, be cancelled and rescinded; that they be given injunctive relief against the construction of the improvements on the 10-foot easement area and in a manner which they contended violated the recorded restrictions; and alternatively, that they be awarded damages. Appellants Gardner answered, specifically asserting, among other things, that before consummating the purchase with the Youngs, they received and relied on assurances from the Youngs that “should it become necessary” the Youngs would agree to any reasonable change in the building line restrictions so as to permit the Gardners to go forward with their building plans; that the drawings which Gardner presented to the Youngs in connection with the August 25, 1967 instrument were shown to the Youngs “as a visual aid” in explanation of the need for the change of the building line restrictions and that the Youngs were advised he proposed to build an open garage or carport closed on two sides and with an overhanging roof. In their crossaction appellees Gardner sought to recover damages for appellants’ trespass over the 10-foot easement area and for injunction against further trespass and use of said area until the 40-foot easement should become unavailable as a driveway; for a deed with correct metes and bounds description of the Gard-ners tract; for damages for the Youngs refusal to give such conveyance, and for damages for asserted slander of title by reason of the filing of notice of lis pen-dens.

In response to special issues the jury found that the Gardners had reasonably relied on the instrument of August 25, 1967 in locating their home on the tract they had purchased; that they had reasonably changed their economic position in reliance on the instrument and that the Youngs had failed to deliver a deed with boundary lines which would close. The jury failed to find that the Gardners had been unable to sell their home at its reasonable market value as the result of the Youngs’ filing of the lawsuit and the associated lis pendens notice and by reason of failure to deliver the correct deed. The trial court’s final judgment recites that the appellants Young take nothing; that they are enjoined from using in any manner whatsoever, without written consent of the Gardners, the 10-foot easement in question and are to remain enjoined until such time as the adjoining 40-foot easement shall become unavailable for use as a driveway or does not qualify or suffice as a path of ingress and egress under any ordinance, statute or other restriction; that until the occurrence of either or both of such events, the Gardners shall have the right of use of the 10-foot easement to erect a brick wall or for any other purposes not violative of the restrictions in force and effect on Tract B; that the Gardners have constructed a brick wall on the front part of the 10-foot easement and an 8-foot brick wall is contemplated on the rear portion' of the 10-foot easement, all of which the trial court found to be authorized by the contractual relationship existing between the parties and enjoined the Youngs from interfering with the construction of such fence until the happening of one or both of the occurrences mentioned above, in the event of which, the appellees Gardner were instructed to remove any obstruction from the 10-foot easement so that same might be used as a driveway for ingress and egress to Tract A. The judgment further provided that the appellants Young would deliver to the Gardners a conveyance with description by metes and bounds of the tract as set forth in the judgment. All other relief was denied.

Appellants’ points of error contend the trial court erred in withdrawing the appellants’ case from the jury and rendering a take nothing judgment against appellants, as a matter of law; in failing to submit certain special issues to the jury as requested by appellants; in refusing to permit appellants to offer evidence that the August 25, 1967 instrument had been executed upon appellees’ representation and promise there would be no carport fronting the driveway; that the structure fronting the driveway would present a solid brick face to persons using such driveway and that the building line restrictions would be amended by a subsequent written instrument and was never intended as a final and complete agreement between the parties. Appellants further contend that the trial court erred in determining, as a matter of law, that appellants had no current right to use the 10-foot easement; in permitting appellees to obstruct the easement; in authorizing the construction of the 8-foot wall, and in determining, as a matter of law, that appellants would be required to deliver the deed as specified in the judgment.

We have concluded the trial court erred in its ruling excluding the evidence offered on behalf of appellants and we sustain appellants points five, six and seven. In view of this determination, we need not consider whether there was competent evidence in the record, aside from such excluded evidence, which would support the trial court’s action in withdrawing the case from the jury and entering judgment against appellants as a matter of law. See McDonald, Texas Civil Practice _ (1970 Rev.), Sec. 11.28.4, pp. 244 — 245.

At the inception of trial, appellees Gardner presented a motion in limine to exclude all evidence of oral agreement between the parties that the Gardners would screen their garage and service facilities, not only from the Youngs’ property to the west but also along the 40-foot driveway to the south, asserting that such evidence would tend to vary or contradict the terms of the aforementioned instrument of August 25, 1967 in violation of the parol evidence rule, and would also violate the Statute of Frauds. The trial court granted this motion and throughout the trial its rulings based on the motion served to prevent appellants Young from offering evidence on the matters covered by that ruling.

Appellant Young was permitted to testify without objection that he and his wife Betty had decided to sell their front lot (Tract B) and to build on their rear'lot (Tract A). He stated that when he and his wife planned their house and finalized their building plans with their designer, they were concerned with how they could protect their right of access to the rear lot and with the restrictions which should be imposed, “as we were building a very expensive home on the lot in the back.” Young testified that as a result they decided on the four building restrictions which they put in their subdivision declaration. Young testified that Gardner first started constructing his own home in the latter part of September or the first part of October, 1967; that in December, 1967, when he (Young) discovered that the construction was not being done in compliance with the restrictions, that discussions followed but that Gardner kept right on building and ignoring complaints that he was violating the restrictions. According to Young’s testimony, Gardner “kept telling us that he was going to comply with them and he wasn’t doing anything wrong; that he was going to comply with them completely.” Young said that he first discovered that Gardner intended to construct a garage area adjacent to the driveway in January, 1968 and that he met with Gardner and his attorney on the property early that month. He said they had subsequent meetings until April, when the suit was filed, in an effort to try to reach some agreement and to “get Mr. Gardner to stop building and to conform to our deed restrictions.”

Young further testified that he had discussed the boundary line problem with Gardner prior to Gardner’s October, 1967 letter to him; that Gardner had advised him of errors in the metes and bounds description. Young said he had never agreed with Gardner to share in the cost of a wall on their common line as recited in the proposed agreement. On cross-examination Young testified he would have had no objection if Gardner had built the garage area back 40 feet from the main driveway as required by and subject to the screening requirements of the deed restrictions.

Roger Rasbach, a professional designer of homes, testified that the Young home had been the subject of an article in “House Beautiful” magazine and had been selected because it was considered an unusually outstanding home. He stated he had been retained by Young to assist in designing a plan of restrictions for the property which “would be of a nature to insure that their home and the accompanying home would be of the highest aesthetic value.” He further testified that of his own knowledge the Gardner home was not in compliance with the recorded restrictions as it had been constructed; that the reasonable market value of the Youngs’ house if the Gardner home had been constructed at a location in compliance with the recorded building set-back lines would have been $500,000.00 and that as actually constructed the location of the Gardner home reduced the reasonable market value of the Young home to $300,000.00. He said he based his opinion on the factor that there was no set-back whatsoever of the Gardner house and no screening of the carport area. (On objection by appellee, the trial court instructed the jury to exclude the testimony as to the screening factor). Rasbach further testified without objection that the type of construction of the carport was commercial, as opposed to residential; that the appearance of the carport area was aesthetically displeasing and was not the type of carport that would be appropriate for an expensive home such as the Youngs’ and the Gardners’. He said the reason he decided to locate the set-back line 40 feet from the driveway was that if a garage were to be located on that side, it would “not be viewable” because the distance from the driveway would allow screening.

Mrs. Betty Young testified the driveway from Westlane to her home was part of the entrance to her house and was discussed at great length in the initial planning with Rasbach; that the restrictions of the tract they intended to sell and did sell to Gardner was an integral part of the planning and designing of their home. She testified that she participated in discussion with Gardner prior to signing the August 25, 1967 agreement and was shown drawings and house plans representing the way the Gardner house would be built; that she was never advised that Gardner intended to build a carport in connection with his house and that the Gardner house was not finally built as represented to her. She further testified that Gardner made certain representations to her concerning the drawings of the house but the trial court refused to permit her to testify concerning such representations on objection by appellants’ counsel that such testimony violated the court’s ruling on the motion in limine. She testified without objection that she could stand on her property and see the Gardners’ unscreened carport.

On bill of exception Mrs. Young reiterated her testimony that she could stand on her property and see the unscreened carport; that the purpose of the set-back line in the recorded restrictions was to give ample room for screening; that the elevation drawings of the proposed construction of the Gardner house were shown to her when the August 25, 1967 document was presented by Gardner and there was no carport reflected on the face of such drawings ; that there was specific discussion concerning the carport; that she and her husband were willing to change the restrictions as to the set-back lines but only on condition that there would be no service area facing the driveway; that Gardner represented the square area on the south line of the property to be some kind of building that was to be all brick; that it was never represented to her to be a garage or carport. She said she signed the August 25, 1967 document on the basis of “our agreement” and told Gardner he could build closer than 15 feet if he complied with the screening restrictions. She said they never gave Gardner permission to build the carport nor told him it was all right to build a garage where he did. She said at the time she signed the August 25, 1967 document, she anticipated that there would be an instrument which would incorporate their entire agreement. She further testified that the drawings and representations made by Gardner in connection with the August 25, 1967 document induced her to sign; that she would not have signed without such inducements and that Gardner did not comply with the representations which he had made to her in the drawings and verbally with respect to the construction of his house. She said when she executed the instrument of August 25, 1967 she did so with the understanding that it would not become binding until Gardner had complied with his agreements. She said Gardner had violated his inducements by constructing the open carport and service area on the driveway next to the entrance to their house.

Mr. John Young testified on the bill of exceptions that he had been induced by Gardner to sign the instrument of August 25, 1967 upon the basis of drawings presented and representations made -by Gardner to him; that he would not have signed the instrument had it not been for such drawings and representations; that he was never shown any drawings by Gardner of an open carport or unscreened garage and that Gardner had not complied with the representations and inducements made at such time; that at the time of such discussion Gardner told him that he would see from his home and from the driveway the pictures depicted by the drawings and that the instrument of August 25, 1967 did not incorporate the entire agreement made between the parties. He said he anticipated that an instrument which would incorporate the entire agreement would be forthcoming at a later time. In summary, Young testified that Gardner had not built his house in accordance with the drawings submitted to them in connection with the instrument of August 25, 1967.

Mr. Gardner testified that prior to entering into the earnest money agreement, Young told him there was some sort of restriction that he planned on putting on the property but that he would amend the restrictions to meet the future owner’s needs; he said Young did not go into detail at that time about what the future restrictions were. He said his carport had been constructed to substantial completion in the latter part of November or early December and that Young had never made any complaint to him that he was building too close to the property line with his carport. He said in December, 1967, Mr. Young objected to him about the appearance of the carport. Gardner further testified that he first learned of the recorded restrictions for the building set-back lines at time of closing. He said he was assured at such time by Young that the setback line restrictions would be amended when he, Young, was presented the plot plan of the house to be built on the property. Gardner said that when he first went on the property with Young, he was told that there were some building restrictions on the land so that he, Young, would have control and restraint over the property; however, he said Young assured him that when he told Young what he had in mind, that he, Young, would make a change in the restrictions. Gardner first testified that he was not really sure whether he had ever discussed the carport with the Youngs before submitting to them the instrument of August 25, 1967. He said, “I think we talked about the carport there and I showed them this instrument here.” Later he said he advised them, the Youngs, he was going to build a carport and that they made no objections. He did not discuss with the Youngs how the carport was going to be built or the type of materials which he intended to use.

It is uncontroverted that at the time the instrument of August 25, 1967 was considered and executed by the parties, Gardner presented to the Youngs, as part of the same transaction, the elevation drawings of the proposed Gardner home. Gardner himself pleaded and testified that he used the drawings as a “visual aid” to demonstrate to the Youngs the nature of the home he intended to construct. The basic difference in the parties’ testimony is that Gardner contends the drawings (and his explanation of the drawings) was not at variance with the carport and service area as they were actually constructed. The Youngs on the other hand contend that the drawings (and Gardner’s representations of them) do not show an open carport and service area, as Gardner contends, but rather an enclosed brick wall. The admitted testimony, as well as that excluded, clearly demonstrates that the instrument of August 25, 1967 was not executed in a vacuum but, to the contrary, that the building set-back lines were being considered and discussed as one of several matters pertaining to the general plan of development of the parties’ respective properties.

In the light of surrounding circumstances, the instrument of August 25, 1967 was not shown to be a presently effective, final and complete embodiment of all agreements which the parties naturally would have included therein as to the transaction in question. The writing does not meet the description of a contract which shows on its face “a complete expression of the whole agreement, without any uncertainty or ambiguity as to the object and extent of engagement.” Guarantee Life Ins. Co. v. Davidson, 234 S.W. 883 (Tex.Com.App.1921).

The language of the instrument itself cannot be said to be certain and unambiguous. The phrase “We agree to amend” might be construed either as a statement of an accomplished act or as a mere promise or agreement to act in the future. It is undisputed that in October, 1967 Gardner submitted a formal written agreement to the Youngs which purported to then effectively amend the building line requirements as set forth in the August 25, 1967 instrument. From this circumstance it might be inferred by the trier of facts that the instrument of August 25, 1967 was only intended to be a memorandum of the parties’ agreement on one item of a contemplated final and complete agreement to be executed in the future. See Miller v. Wilson, 258 S.W. 540 (Tex.Civ.App. — San Antonio 1924, n. w. h.). Under the circumstances shown by the record, the phrase “We agree to amend” is of doubtful import and capable of more than one meaning. We find that the instrument of August 25, 1967 is uncertain and ambiguous and that the full intention of the parties cannot be ascertained from the writing itself. City of Houston v. McCarthy, 340 S.W.2d 559 (Tex.Civ.App. — Waco 1960, writ ref. n. r. e.).

We are also of the opinion that the excluded testimony was admissible because it merely explained collateral agreements which, according to the Youngs, formed the inducements or consideration for the writing, and that such evidence was not inconsistent with the terms of the writing. The instrument of August 25, 1967 purports to amend (or to agree to amend) only the building set-back restrictions on the Gardner tract. The instrument is silent as to the inducements or consideration to be furnished by the Gard-ners. In his own testimony Gardner gave his version of the circumstances surrounding the execution of the instrument and as to the inducements or consideration which he contended he furnished. In our opinion, the testimony offered by appellants on their bill of exception serves to fill in and explain the representations and assurances which, according to the Youngs, constituted the inducements or consideration to be furnished by the Gardners. These expressions have merely to do with the plan of proposed construction of the Gardner home and to show the Youngs’ contention that they were led to believe that a later instrument covering their entire agreement with Gardner would be submitted to them for execution. These expressions relate to matters entirely collateral to and consistent with the designation of the building setback lines as set forth in the instrument of August 25, 1967. Accordingly, proof of such collateral agreements does not violate the parol evidence rule. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30 (1958). Although the subject matter of these collateral agreements may be related to that expressed in the written instrument, the parol evidence rule is not applicable if the collateral expressions do not contradict the writing and if the subject matter is that which might naturally have been dealt with separately by the parties. Garza v. Garza, 371 S.W.2d 934 (Tex.Civ.App.— Austin 1963, n. w. h.).

In the testimony excluded by the trial court, the Youngs sought to explain the inducements and consideration which led them to execute and deliver to the Gardners the instrument of August 25, 1967. According to this testimony, Gardner represented to the Youngs by the drawings and his explanation of them that he would build a home having no open carport or service area facing the driveway to the Youngs’ home and that the instrument of August 25, 1967 was merely a memorandum of their agreement with respect to the building set-back lines which would not become effective until the full and complete agreement had been prepared and executed by the parties. This testimony was not inconsistent with the face of the writing. Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515 (1946). Both the drawings and the Youngs’ testimony, including that excluded, were admissible to show the inducements or consideration for the writing. Smith v. Pulliam, Inc., 388 S.W.2d 329 (Tex.Civ. App. — Fort Worth 1963, writ ref. n.r.e., Tex. 394 S.W.2d 791); Rubin v. Adams, 368 S.W.2d 42 (Tex.Civ.App. — Amarillo 1963, writ ref. n.r.e.); Phillips v. Woodard, 306 S.W.2d (Tex.Civ.App. — Texarkana 1957, writ ref., n.r.e.); Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184 (1955); Callaway v. Albin, 114 Tex. 5, 261 S.W. 372 (1924); 3 Tex. Law Review 293. The issues of fraud, ambiguity, want of consideration and effectiveness of delivery were raised by the pleadings and the evidence and the excluded testimony was admissible on such issues. McFarland v. Shaw, 45 S.W.2d 193 (Tex.Com.App.1932), wherein Justice Sharp at page 195, quoting 3 R.C.L. pp. 869-70, stated:

“ ‘Many of the exceptions to the parol evidence rule are quite as well settled as the general rule and require only a mere statement. It may not be contended for example, that, as between the parties to an instrument parol evidence is incompetent to show fraud, mistake, illegality, want or failure of consideration, to explain an ambiguity when such explanation is not inconsistent with the written terms, or to show that the writing is only a part of an entire oral contract between the parties, or that its obligation has been fully discharged by an oral collateral agreement. So in a controversy between the parties or others charged with notice proof may be made of a collateral agreement, which was the consideration for the instrument, or which postpones the legal operation of the writing until the happening of a contingency. And again, an instrument is to be construed, as in any other case, in the light of its subject matter, and the circumstances in which and the purposes for which it was executed, which evidence is always admissible in the construction of written contracts, in order to put the court in the position of the parties.’ ”

We find no merit in appellees’ contention that the excluded evidence violates the statute of frauds. Appellants’ action was not to enforce the oral agreements of appellees but on the contrary was to rescind and cancel the instrument of August 25, 1967 and to enjoin appellees’ use of the premises in violation of the restrictions set forth in the appellants’ Declaration of Subdivision. Although appellants did, in their general prayer for relief, ask for damages allegedly occasioned by appellees’ construction of improvements on Tract B in violation of the building restrictions, this request was made in the alternative and only in the event appellants’ prayer for injunctive relief should not be granted. All such relief, injunctive and alternatively for damages was, insofar as material here, necessarily dependent upon appellants’ first showing a right to recision and cancellation of the instrument of August 25, 1967. See Marantz v. Weisberg, 33 S.W.2d 505 (Tex.Civ.App. —Ft. Worth 1930, writ dism’d). The statute of frauds has no application in this situation. Cearley v. May, 106 Tex. 442, 167 S.W. 725 (1914); Caballero v. Taylor, 290 S.W. 815 (Tex.Civ.App. — San Antonio 1927, n.w.h.); Meek v. H. & N. Machining, Inc., 420 S.W.2d 227 (Tex.Civ.App. — Fort Worth 1967, n.w.h.); Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 164 S.W.2d 488 (1942).

A review of the entire record reveals that appellants Young were prevented throughout the trial from presenting evidence on these issues due to the court’s ruling on appellees’ motion in limine. The record shows that the trial court concluded and so informed counsel that evidence would not be received as to any collateral expressions between the parties relating to the August 25, 1967 instrument. It is equally clear that both court and counsel understood throughout the trial that appellants would be permitted to make a bill of exceptions in order to preserve error for appellate review of the trial court’s ruling. After completing the bill of exceptions there was no duty on the part of appellants’ counsel to make any further presentation or tender of evidence and the bill sufficiently apprised the trial court of the nature and extent of the evidence sought to be offered and which was excluded by the trial court’s ruling. Rules 372, 373, Texas Rules of Civil Procedure; McDonald, Texas Civil Practice (rev.1970), Vol. 3, Sec. 11.31, pp. 257-9. The exclusion of this evidence was definitely harmful and requires the cause be reversed and remanded for new trial.

In view of our ruling on the trial court’s exclusion of evidence, it becomes unnecessary for us to decide the matters asserted in the appellants’ first four points of error.

Appellants’ eighth point of error is that the trial court erred in holding, as a matter of law, that the Youngs have no current right to use any part of the 10-foot easement reserved for use as a driveway on the south line of Tract B and enjoining such use. We are of the opinion the trial court was justified in its holding and in granting this relief. The Youngs’ deed to the Gardners purports to reserve a ten (10) foot easement for driveway purposes along the southerly line of Tract B “as set out in instrument recorded Volume 6819, page 249 of the Deed Records of Harris County, Texas.” The recorded instrument referred to is the June, 1967 Declaration of Subdivision filed by the Youngs, which recites that Tract B is subject to a 10-foot easement “being for use and benefit of Tract A as a driveway only, and to be used as such only in the event that the adjoining 40-foot easement shall be unavailable for use as a driveway or in the event the 40-foot easement does not qualify or suffice as a path of ingress and egress for Tract A under any ordinance, statute or other restriction.” We find, as did the trial court, that the instruments creating and reserving the 10-foot easement provide that it could be used only in the event the 40-foot easement should be unavailable for use as a driveway or did not qualify for access under an ordinance, statute or other restriction. We have considered and find no merit in appellants’ contention that Sec. 504(a) of the City Code of the City of Houston adversely affects the availability of the 40-foot easement for use as a driveway. In the event appellants or their successors in ownership to Tract A should be denied use of the 40-foot easement as a driveway as provided in the instruments, it is clear from the terms of the judgment that they shall have the right to use of the 10-foot reserved easement for such purpose. We, accordingly, order the appellees’ cross-action on this point severed from the cause, and as so severed, the trial court’s order is affirmed.

Appellants’ ninth and tenth points of error contend that the trial court erred in holding, as a matter of law, that appellees were authorized to build and maintain an 8-foot wall on the 10-foot easement. While not specifically argued, we believe appellants’ points of error raise the question of whether the construction of this wall would be in violation of the building set-back line restrictions. Whether the proposed wall is a “structure” within the meaning of the restrictions depends upon its nature and the form and purpose of the restrictions. Stewart v. Welch, 142 Tex. 314, 178 S.W.2d 506 (1944). The restrictions should be considered in their entirety and in light of the construction which the parties themselves placed upon them. Brite v. Gray, 377 S.W.2d 223 (Tex.Civ.App.— Beaumont 1964, n.w.h.). A reading of the above quoted restrictions shows that a wall was contemplated to screen utility, garage and service areas and the instrument of August 25, 1967 indicates a wall along the west line and along a portion of the south line of Tract B. There was a great deal of testimony and some correspondence concerning the nature and location of a wall separating the two properties. The trial court’s judgment recites that its ruling is based on the “contractual relationship” of the parties. In view of our decision that this cause must be reversed and remanded on the issues pertaining to the instrument of August 25, 1967, we sustain appellants’ points of error numbers nine and ten.

Appellants’ eleventh point of error is that the trial court erred in holding, as a matter of law, that appellants should be required to give appellees a deed containing description as set forth in the judgment.

The uncontroverted testimony of appellees’ surveyor, as well as the documentary exhibits and plats received in evidence, show two rather minor errors in called distances in the deed. The first of these was obviously due to a typographical error, the call being for 192 feet instead of 1.92 feet as shown in earlier instruments. The second was a “short call” of 272.48 feet instead of 281.63 feet which created a deficiency in distance of 9.15 feet in the last called distance in the deed description. The deed called for ground objects which were found by the surveyor and which, of course, control over any discrepancies in called distance. Slight discrepancies in called distance are not unusual even under the improved surveying techniques of today. We find that the evidence established, as a matter of law, the actual ground location of Tract B as described in the deed. Under the pleadings and evidence appellees were entitled to a correction of their deed description with respect to the discrepancies discussed above. However, the trial court proceeded to go beyond these matters and on the basis of other evidence, but without jury findings, purported to rewrite certain course and distance calls in the deed. Absent agreement of the parties or other legal basis for a reformation of the conveyance, the trial court was not justified in making substantial changes in the calls of the deed. Inasmuch as this cause must be reversed and remanded for a new trial on the plaintiffs’ case, we reverse and remand the trial court’s judgment on appellees’ cross-action for further proceedings consistent with this opinion.

Affirmed and severance ordered as to the trial court’s judgment and decree that appellants shall be enjoined from the use of the 10-foot easement for driveway purposes unless and until the adjoining 40-foot easement shall be unavailable for use as a driveway or does not qualify or suffice as a path of ingress and egress to Tract A under an ordinance, statute or other restriction, as set forth in said judgment. Reversed and remanded as to all other portions of the judgment, Chief Justice Coleman dissenting.