(concurring in part and dissenting in part).
I concur in reversal of the judgment below but respectively dissent to rendition of judgment here that appellee take nothing. In my view the judgment should be reversed on the basis of appellant’s point three (which is not mentioned in the majority opinion) and the cause remanded for new trial.
The majority opinion does not set out the three points contained in appellant’s original brief which read as follows:
“APPELLANT’S FIRST POINT
“The Trial Court erred in disregarding the findings of the Jury on Special Issue Number 22, wherein the Jury found that Appellant had not received a satisfactory permit from the City of Corpus Christi for the construction of the Second Addition to Parkview General Hospital, and also in granting judgment for Plaintiff contrary to such jury finding. (Germane to Assignment of Error No. V, Defendant’s Amended Motion for New Trial)
APPELLANT’S SECOND POINT
“The Trial Court erred in granting Ap-pellee judgment for an amount equal to one hundred (100%) percent of the architect’s fee due had the work been completed rather than an amount equal to sixty-nine (69%) percent of the work done by Appellee as alleged in his pleading and found by the Jury. (Germane to Assignment of Error Nos. VI and VII, Defendant’s Amended Motion for New Trial)
APPELLANT’S THIRD POINT
“The Trial Court erred in granting judgment for Appellee and in refusing to grant Appellant a new trial because the Jury considered and based its verdict on evidence that had not been offered or admitted into the trial by the Court. (Germane to Assignment of Error No. X, Defendant’s Amended Motion for New Trial)”
The judgment of the trial court sets out, among other things, special issues 18, 22 and 23, the jury answers thereto, and a recitation concerning them reading as follows:
“SPECIAL ISSÜE NO. 18
Do you find from a preponderance of the evidence that there was a waiver by Defendant of the conditions stated by Plaintiff in his letter of April 16, 1965?
(Note: The correct date of appellee’s letter is April 15, 1965).
Answer ‘Yes,’ or ‘No’.
WE, THE JURY, ANSWER: NO.
* * * * * *
SPECIAL ISSUE NO. 22
Do you find from a preponderance of the evidence that the Defendant Parkview General Hospital obtained a satisfactory permit from the City of Corpus Christi for the construction of the second addition to Parkview General Hospital?
Answer ‘Yes’, or ‘No’.
WE, THE JURY, ANSWER: NO.
SPECIAL ISSUE NO. 23
Do you find from a preponderance of the evidence that there was a waiver by the Defendant of the failure to obtain a satisfactory permit from the City of Corpus Christi to erect the second addi*494tion to Parkview General Hospital, if. you have so found?
Answer ‘Yes’, or ‘No’.
WE, THE JURY, ANSWER: NO.
“Thereafter Plaintiff moved to the Court to disregard the findings of the jury on special issues Nos. 18, 22 and 23 and it appearing to the Court that the findings of the jury to special issues Nos. 18, 22 and 23 have no support in the evidence and that special issue No. 22 is an eviden-tiary issue and not an issue of ultimate fact and may be, therefore, disregarded by the Court.”
I agree with the holdings of the trial court in the respects just mentioned. With reference to special issue 22 the inquiry made therein is whether appellant “obtained a satisfactory permit” from the City for the construction of the addition in question. I am unable and unwilling to equate that inquiry with the issue as to whether the City gave “permission to build”, which is the condition stated in appellee’s letter. In particular, I do not agree that the word “satisfactory” is properly injected into special issue 22, and I would here uphold the trial court rulings that said issues as submitted was both evidentiary only and without support in the evidence. Appellee’s letter of April 15, 1965 referred to appellant obtaining a “satisfactory loan commitment”, but it did not use the word “satisfactory” in connection with “permission to build” by the City. It is true that a contract may require that certain provisions or performance shall be to the satisfaction of the other party. See Delhi Pipeline Corporation v. Lewis, Inc., 408 S.W.2d 295 (Tex.Civ.App., Corpus Christi, 1966, n. w. h. ). But, as we held in that case (in accord with a number of cases cited therein), the stated rule is operative only where it appears from express terms of the contract or from plain language therein that it was the intention of the parties that the determination of the person to whom the decision is entrusted would be final and conclusive; and such a provision is not to be implied. The evidence establishes that the City did grant “permission to build” the addition in question. On October 5, 1966 the City Council passed an ordinance amending the zoning ordinance of the City of Corpus Christi, Texas, which granted a special permit for the construction in question, subject to the conditions therein set out. The evidence reflects that the original hospital and all prior additions were constructed under other special permits granted by the City Council. The conditions mentioned in the ordinance of October 5, 1966 could have been easily complied with by appellant. There is no provision in the contract here that a determination of dissatisfaction by appellant’s representatives concerning the City’s “permission to build” would be final, binding or conclusive, or that appellant’s dissatisfaction with “permission to build” would furnish a basis to terminate appellant’s contract with appellee architect. The evidence shows that on November 2, 1966, Mrs. V. C. Connor, who appears to have been the driving force behind the project, was seriously injured in an accident which incapacitated her for several weeks thereafter. The first time appellee had any indication that the construction might not proceed was on December 1 or 2, 1966 when Dr. Connor said in substance that he had never wanted to build the addition but would go along with Mr. Hartgraves and Mrs. Connor on the matter. Mrs Connor was still in the hospital and seriously ill at that time. Appellee testified on the trial that he had never been told by Mrs. Connor or anyone else connected with appellant that the project was not going to be built. The trial court properly disregarded the answer to special issue No. 22.
I agree with appellee that the evidence conclusively establishes that appellant had waived the condition concerning “permission to build” contained in appellee’s letter of April 15, 1965. Some of this evidence is as follows: On October 29, 1966, four days before Mrs. Connor was injured, ap-pellee and his attorney joined with her in a treasure hunting expedition at or near *495Padre Island south of Corpus Christi, Texas. On the evening prior to the search there was a discussion between appellee and Mrs. Connor with reference to appellee borrowing a Scout vehicle from her and of other matters. The parties were then on the friendliest of terms and appellee had not been advised to stop working on the project. On November 7, 1966 Dr. Connor wrote a check to appellee for $1,000.00 as payment on appellee’s account. On December 12 1966 the attorneys for appellant wrote a letter to the mortgage broker con-erning the project with carbon copy to ap-pellee in which the latter was requested to prepare a plot plan to be attached to one of the written agreements concerning the loan for the improvements. It is apparent from the evidence and the jury findings that appellee’s work was largely completed at that time. Appellee has never been given any written termination notice as is required under Article 10 of the basic agreement between the parties; which agreement is on a filled-in printed form of the American Institute of Architects and designated “The Standard Form of Agreement Between Owner and Architect on a percentage of Construction Costs.”
The majority opinion in part states:
“In connection with special issue 18 the jury refused to find that the defendant hospital owners waived the conditions stated by the architect in his letter, nor was there a finding of waiver (special issue 23) by the defendant hospital owners of their failure to obtain a satisfactory permit from the City of Corpus Christi.”
The jury findings of “no” to each of special issues 18 and 23 do not amount to affirmative findings (in favor of appellant) that the appellant did not waive the matters inquired about. Instead, such answers amount to no more than a refusal by the jury to find from a preponderance of the evidence that there was such a waiver in each instance on the part of appellant. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.Sup.1966).
The original brief of appellant did not contain points of error complaining of the trial court action in disregarding the answers to special issues 18 and 23, nor were they specifically mentioned therein. In appellant’s post-submission brief, filed some fourteen days after oral argument, complaint is made for the first time in this Court (in appellant’s supplemental points 4 and 5) concerning the action of the trial court in disregarding the answer to special issue No. 23; but again there is no point of error, brief or argument concerning the action of the trial court in disregarding the jury answer to special issue 18. As I view the matter, the action of the trial court in disregarding the answer to special issue 18 has not been complained of by appellant in this Court and there is no proper basis for our consideration of such action. The answer to special issue No. 18 does not amount to an affirmative finding that appellant did not waive the conditions stated by the appellee architect in his letter of April IS, 1965.
When we reach specific consideration of the action of the trial court in disregarding the jury answer to special issue No. 23, it appears, as above stated, that appellant did not complain of that action in its original brief. However, appellant’s counsel who filed its original brief withdrew from the case prior to its submission and new counsel for appellant argued the case. At the time of submission appellant had not amended or supplemented its brief. On submission day we granted leave to appellant’s present counsel to file a reply brief to that of appellee. Later, appellant filed a post-submission brief complaining for the first time in this Court of the action of the trial court in disregarding the jury’s answer to special issue No. 23 because: (1) “ * * * said issue was an ultimate issue in the case.” (appellant’s supplemental point No. 4), and (2) “* * * for the reason that the record contains sufficient evidence to support the Jury’s answers.” (appellant’s supplemental point No. 5).
*496I would hold first, that appellant’s supplemental points 4 and S are not properly before us for consideration. We have not granted leave to appellant to assert additional points to those contained in its original brief, nor have we been requested to do so. Secondly, even if such supplemental points may be considered, in my view they are without merit. The discussion herein-above of special issue No. 22 is also material to special issue No. 23. I am unwilling to hold that appellant’s asserted failure to obtain a “satisfactory” permit can be equated with or substituted for “permission to build” the facilities in question in connection with the question of waiver. In addition, I am convinced that there was a waiver by appellant of the conditions set out in appellee’s letter of April 15, 1965, as is more fully discussed hereinabove in connection with the action of the trial court in disregarding the answer to special issue No. 22. Appellee’s letter of April 15, 1965 must be considered in connection with the basic contract for architect’s fees dated April 16, 1965. When this is done, the conclusion is inescapable to me that the parties did not provide for or intend that appellee would be deprived of compensation for his work done under the facts shown to exist here.
In my view, appellant’s point No. one should be overruled.
In my view, the trial court could have originally rendered judgment in favor of appellee for an amount additional to that previously paid him by appellant based upon the jury verdict. However, I believe that the trial court should ultimately have granted a new trial for the reasons now to be stated.
Appellant’s third point asserts in substance that the trial court erred in refusing to grant it a new trial because the jury considered and based its verdict on evidence that had not been offered or admitted by the court. After the verdict was returned trial counsel for appellant discovered that the complete set of plans relied on by ap-pellee were not offered by either party nor admitted into evidence by the trial court. The set of plans was identified by the court reporter as plaintiff’s exhibits 1-22 inclusive, and consist of 22 separate pages, each of dimensions 28 inches by 17 inches. The exhibits, so marked for identification only, all relate to units A, B, C and D of the proposed addition and may be generally described as follows: Exhibits 1-4, floor framing plans; Exhibits 5-9, roof framing plans, Exhibits 9-14, air conditioning plans; Exhibits 15-18, electrical plans; and Exhibits 19-22, plumbing plans. There was some oral testimony involving Plaintiff’s Exhibits 1-22, particularly by appellee’s witnesses William Alvin Eppes, consulting engineer and brother of appellee, and Mr. Ben Wagner, a structural consulting engineer. However, there were many facets of these exhibits which were not testified about, and their presence in the jury room undoubtedly furnished much additional evidence and in a different form from other evidence which had been admitted.
On the hearing of its motion for new trial appellant called as a witness Mr. J. E. Zimmerman, one of the jurors who sat in the case. His testimony was in substance that Plaintiff’s Exhibits 1-22, being the plans hereinbefore referred to which were not admitted into evidence, were examined by the jurors in detail and were used in connection with answering the special issues. Mr. Zimmerman testified that such exhibits were the only set of plans or set of architectural drawings in the jury room, although there were some other drawings and papers. The juror further said that the plans were used in determining the amount of work done by the architect, and that the plans were examined at length in connection with either the question of percent of completion or cost. No other juror was called as a witness and Mr. Zimmerman’s testimony was uncontradicted. The record thus reflects that such exhibits, being the only set of plans drawn by ap-pellee, although identified as Plaintiff’s Exhibits 1-22, were not admitted into evidence, but nevertheless found their way into the jury room and were used and con*497sidered by the jurors in reaching their verdict.
It is well settled that a new trial should be granted in a civil case if it appears that the verdict was influenced by the juror’s consideration of a document not introduced in evidence. See Triangle Cab Co. v. Taylor, 190 S.W.2d 755 (Tex.Civ.App., El Paso, 1945, affirmed 144 Tex. 568, 192 S.W.2d 143); Jones v. Elliott, 259 S.W.2d 288, 297 (Tex.Civ.App., El Paso, 1953, writ denied with per curiam opinion 153 Tex. 68, 263 S.W.2d 250); 41 Tex.Jur.2d, New Trial, Sec. 50, p. 145; Texas Practice, Evidence, McCormick & Ray, Vol. 2, Sec. 1466, p. 324.
It is conceded by all parties that the set of plans marked Plaintiff’s Exhibits 1-22 should not have been sent to the jury room or considered by the jurors. It is further apparent that these exhibits were highly material in connection with several of the special issues submitted to the jury. This is particularly true as to the questions of percentage of completion of appellee’s work and the cost of construction.
In my view, probable injury to appellant, which is a question of law, has been established. The additional information furnished to the jury by the exhibits which were not admitted into evidence probably caused the jurors to answer the issues, particularly numbers 4 (construction cost of $430,218.00); 5 (percentage of completion of architectural work, 85'%); and 19 (reasonable value of architectural services, $18,-762.40), in amounts greater than it would otherwise find without them. In any event such exhibits greatly buttressed the other evidence offered by appellee and probably caused the rendition of an improper judgment. Rule 434, T.R.C.P.
For the reasons stated, I would sustain appellant’s point number three and reverse and remand the case for new trial. I, accordingly, respectfully dissent to rendition of judgment here in favor of appellant.