dissenting.
I respectfully dissent from an opinion which has strayed from the rule which should govern the disposition of this appeal. We should apply the rule enunciated in MacDonald v. Painter, 441 S.W.2d 179, 183 (Tex.1969):
“[T]he settled rule [is] that restrictions are construed strictly in favor of the grantee and against the grantor and in favor of the free and unrestricted use of the property . . . .”
The greater portion of the majority opinion is taken up with the troublesome, but immaterial, question of the delayed filing of the findings of fact and the failure of appellant to complain of the findings.1 Instead of this approach, I would invoke the rationale of Tex.R.Civ.P. 1, and attempt to “obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.”
We review a judgment arising out of a bench trial and we have been furnished with a complete statement of facts. Thus, I would utilize the rule set out in Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156, 158 (1950):
“There is nothing in the rules which provides that in a case tried before the court without a jury the findings of fact are conclusive on appeal when a statement of facts appears in the record.”
See also, Douthit v. McLeroy, 539 S.W.2d 351, 352 (Tex.1976); Block v. Waters, 564 S.W.2d 113, 115 (Tex.Civ.App.—Beaumont 1978, no writ).
With this approach, I turn now to a consideration of appellant’s second point, quoted in the margin.2 In doing so, I reach the heart of the case by quoting the covenant relied upon by the appellees:
“Only one one-family residence may be erected, altered, placed or be permitted on any lot. No residence may be erected, that contains less than 720 feet of covered living area. All buildings must be constructed of wood, wood siding, wood shingles, masonary (sic), asbestos shingles or of material of equal or better quality.”
Appellant was required, by the mandatory injunction granted by the trial court, to move his mobile home from his lot in the subdivision upon an undisputed record which shows:
1. There was no prohibition in the restrictive covenant which prohibited the placement of mobile homes upon lots in the subdivision. Although the majority cites Lassiter v. Bliss, 559 S.W.2d 353 (Tex.1977), there is no mention of the specificity of the covenant involved in Lassiter.3 Even in the face of that express language, three distinguished members of our Supreme Court *350were not persuaded that “mobile homes”, as distinguished from “trailers”, were encompassed in the restriction. Here, mobile homes are not even mentioned in the restriction.
2. The principal witness for the appel-lees, the complainants in the action below, was Ray Cox, a lawyer by profession, whose main objection was to the presence of the mobile home on the lot, not the type of material used in its construction.4
3. Unquestionably, the mobile home had the requisite “720 feet of covered living area” set out in the restriction. Under our record, it was constructed, at least in part, of wood and was covered with aluminum. Robert Steele, a resident of the subdivision, owned a house therein which was covered with aluminum siding.5 An expert witness, duly qualified to express an opinion on the subject, testified without contradiction that the aluminum siding on Steele’s home and appellant’s mobile home were “of the same or equal quality.”
4. No witness testified to any financial loss or potential loss by any of the appellees because of the location of the mobile home on the lot in question. The only evidence on the subject came from cross-examination of the appellee, Ray Cox, and it was shown that one owner may have lost a potential sale of his lot, but the testimony was hearsay.6 No effort was made to show any financial loss by any appellee or other landowner in the subdivision.
Under the record which we have before us, I am of the opinion that the trial court erred in ordering the enforcement of a restrictive covenant which was inapplicable to appellant’s activities. I would, consequently, sustain appellant’s point two (fn. 2, supra) which would result in a reversal of the judgment of the trial court and a rendition of judgment against the appellees. I decline to join in the affirmation of the judgment below.
. Appellant’s brief was filed on April 7, 1980; the supplemental transcript containing such findings was not filed April 21, 1980.
. Point Two: “The trial court erred in holding that the covenant was enforceable against appellant.”
.The covenant enforced in Lassiter read:
“ ‘No trailer, . . . placed on any part of said tract, shall at anytime be used as a residence, nor shall any residence of a temporary character be permitted.’ ” (559 S.W.2d at 355)
. Cox, upon cross-examination:
“Q. Your testimony is you’re objecting to a mobile home, not because it’s of equal or better material than wood, wood siding and so forth, as set out in Section 3 [of the restrictions]?
“A. That’s correct.
“Q. You have no quarrel that it is not an equal quality?
“A. Not really, aesthetically Mr. Burroughs.”
. Mr. Steele, who had been “in steel and aluminum” before his retirement, testified that the aluminum covering his home was .030 in thickness and bore number 6061, the same manufacturer’s number used on the aluminum covering the mobile home.
.This language from Belverman v. State, 16 Tex. 130, 132 (1856), is appropriate: “But mere hearsay is not only not the best, nor even secondary evidence; it is no evidence.” See also, Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631 (1941).