This appeal questions the correctness of summary judgments rendered in favor of appellee.
*36The record on appeal fails to conclusively establish that there were no genuine triable issues of material fact under the issues as made by the second cause of action of the complaint and answer thereto, and counterclaim and answer thereto. Under these circumstances, the appellee was not entitled to judgments as a matter of law, and the trial court erred in holding to the contrary.
The judgments appealed are reversed and the cause remanded to the trial court for the purpose of receiving evidence on the issues as made by the pleadings, and rendering final judgment .thereon.
Reversed and remanded.
BOYER, C. J., and MILLS, J., concur. McCORD, J., dissents without opinion.