(dissenting on rehearing).
As indicated in the PER CURIAM opinion on rehearing, I join with the majority in overruling the motions for rehearing filed by the appellee, Everett Reese, and in granting the motion for rehearing filed by the appellees, Walter Juncker and Don Pace. I dissent only as to the action of the majority in ruling on the motions of Jewel Maness, appellant, and Frances Maness, an appellee.
I joined in the opinion reversing the judgment of the trial court and concur with the majority that the jury findings in favor of the plaintiff below (special issues nos. one through six as modified by no. ninety-one), amounted in law only to findings of nonactionable negligence and not to actionable misrepresentations of past or existing facts. I do not recede from this holding and concur in the reversal of the trial court’s judgment.
I will treat separately the reasons for my disagreement with the majority as to the motions of Jewel Maness and Frances Maness.
Jewel Maness Motion
In essence, the point of Maness, which was sustained on original submission, was a law point.1 In such event, it is the normal practice of this court to render judgment. Calvert, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error,” 38 Tex.Law Rev. 361, 366 (1960); Rule 434; Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47, 49, 150 A.L.R. 1369 (1943); Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966); and Texas Sling Company v. Emanuel, 431 S.W.2d 538, 541 (Tex.1968). See also National Life and Accident Insurance Co. v. Blagg, 438 S.W.2d 905 (Tex.1969); Owen v. Brown, 447 S.W.2d 883 (Tex.1969); and City of Fort Worth v. Pippen, 439 S.W.2d 660 (Tex.1969).
Usually a case is remanded in the interest of justice when there has been a change in the basic law between the trial and the final opinion (e. g., Scott v. Lieb-man, supra), or the case has not been fully developed because tried upon the wrong theory. Southwestern Mot. Tr. Co. v. Valley Weathermakers, 427 S.W.2d 597, 605 (Tex.1968). See also Sovereign Camp, W. O. W. v. Patton, 117 Tex. 1, 295 S.W. 913, 915 (1927).
We have reviewed the record of an extremely lengthy trial which consumed literally weeks of the trial court’s time and attention and no party to this appeal has suggested that the case was not fully de*667veloped by competent counsel representing the parties. Pippen, supra, is clearly in point and should rule our disposition of the cause. (439 S.W.2d at p. 667)
I agree with Chief Justice Dies that the evidence would have warranted the trial court in submitting issues upon the so-called “pipeline” theory of available funds. But, this was an independent ground of recovery and no contention is made that such fact was conclusively established by the evidence. At most, it presented a fact issue for determination by the jury. Under Rule 279, this independent ground of recovery was waived by the failure of plaintiff to request the submission of an issue presenting such to the jury for determination. Glenn Falls Insurance Co. v. Peters, 386 S.W.2d 529, 531 (Tex.1965).
We are cautioned by Chief Justice Calvert in the law review article previously cited that we “should not remand for the sole purpose of affording the appellee ‘another bite at the apple’.” (38 Tex.Law Rev. at 369)
There is yet another facet of the case, not mentioned in the original opinion, which gives me concern in view of the general remand which has been ordered— the series of findings that Reese completed the purchase of the Maness stock because of the threat of a civil lawsuit by Maness against Reese.2 Plaintiff moved for judgment on the verdict and such motion was granted after overruling defendants’ motion for judgment on the verdict and for judgment non obstante veredicto.
In Ulmer v. Ulmer, 139 Tex. 326, 162 S. W.2d 944, 947 (1942), the court quoted from 17 Amer.Jur. 892: “ ‘It is never duress to threaten to do that which a party has a legal right to do, * * *.’ ” Stated somewhat differently, the court in Dale v. Simon, 267 S.W. 467, 470 (Tex.Comm.App.1924, jdgmt adopted), said, “There can be no duress unless there is a threat to do some act which the party threatening has no legal right to do.” Reese, according to his testimony and the finding of the jury, entered into his ill-fated contract because of the threat of a lawsuit by Maness. This reason for completing the deal, according to Reese, is inconsistent with his theory of actionable fraud, and could not, in law, afford him grounds for recovery. See Eggleston v. Humble Pipe Line Company, 482 S.W.2d 909, 916 (Tex.Civ.App., Houston—14th, 1972, application for writ pending).
If Reese would not have completed the transaction “but for the threat of a lawsuit,” obviously, he did not do so in reliance upon Maness’ alleged misrepresentation of material facts. It is clear that there is no priority of findings, either in degree or importance, and where two findings with respect to a material fact are such that both cannot be true, in such instance, neither will be permitted to stand. Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453, 455 (1944).
At first blush, it appears that there is a conflict between this finding and with those upon which Maness’ liability was based in the trial court’s judgment. But, as was said by Chief Justice Calvert in Bay Petroleum Corporation v. Crumpler, 372 S.W.2d 318, 319 (Tex.1963), “[T]he ultimate question is not whether the findings are inconsistent or in conflict, or even in irreconcilable conflict; rather, the ultimate question is whether the conflict in the findings is fatal to the entry of judgment, and that question is to be answered under the rule laid down in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985.”
*668We have held, and I concur with the holding, that the issues (nos. one through six) did not submit actionable fraud; consequently, Reese is in substantially the same position as was Crumpler in the cited case — he has no finding upon which his judgment may rest. There being no finding of actionable fraud, there is no conflict between plaintiff’s series and those finding that Reese completed the deal because of the threat of a lawsuit. Thus, defendants’ findings were sufficient to warrant judgment; and the trial court erred in entering judgment for Reese against Maness upon the verdict. Crumpler, supra, at 320.
I see n.o alternative, under the holdings cited herein, to a rendition of the judgment in favor of appellant Maness and an affirmation of the judgment as to the appellees, Juncker and Pace. To do otherwise would, in fact and in law, give to Reese “another ‘bite at the apple,’ ” not necessarily in the interest of justice but because we may have discretion so to do. Cf., Jackson v. Ewton, 411 S.W.2d 715, 719 (Tex.1967).
I would sustain Maness’ first three grounds as set forth in his motion for rehearing and would render judgment in favor of Maness and against the plaintiff. I respectfully dissent from an order which overrules these three grounds.
Frances Maness Motion
It appears clear from our record that Frances Maness received a substantial, but undisclosed, amount of community property in a divorce action. But, there is no suggestion in our record that she actually participated in, aided or abetted Jewel Maness in any of the acts or representations leading up to this controversy. It is clear that the community estate of Jewel and Frances Maness would be liable for the torts of either spouse; but the wife is not liable individually for Jewel’s torts which were unaided and unabetted by her. Turner v. Turner, 385 S.W.2d 230, 232 (Tex.1964).
Since I would grant Jewel’s motion for rehearing, it follows that I would grant that of Frances, and, as to her, would affirm the judgment of the trial court.
. Although the specific point is not mentioned, Maness’ point four is a likely basis for the holding. It reads :
“The court erred in overruling Defendant’s motion for instructed verdict, there being no evidence that the Defendant Maness made any representations of fact, but on the contrary, under all of the evidence any representations of Maness with respect to the effect of the withdrawal of $200,000 for stock redemption amounted to a nonactionable expression of opinion.”
. This series of issues, Nos. 147-149, inclusive, were nil answered in the affirmative : Reese completed the purchase “because of the threat of a civil lawsuit by Maness against Reese”; “Maness threatened to file a lawsuit against Everett Reese [before] the closing of the stock purchase on April 3, 1964”; that “but for the threat of a lawsuit by Maness against Reese on or prior to the date of closing the purchase . . . Reese would not have completed said purchase.”