Full opinion text
EVANS, Chief Justice. John R. Adams, d/b/a Adams Oil Company, and Cloyce K. Box appeal from a money judgment in favor of Petrade International, Inc. and Gulf States Oil and Refining Company, based on the jury’s findings that Box and Adams agreed to purchase certain gasoline from Petrade and Gulf States and that the parties were also bound by the terms of a settlement agreement. In May 1979, gasoline and No. 2 grade fuel oil were bringing in the highest price in history. In early June 1979, Box, Adams, and Petrade, a trading company, began discussions about a purchase of gasoline and No. 2 oil from Petrade. The jury found that Box and Petrade’s representatives agreed that Petrade would sell 100,-000 barrels of regular gasoline and 100,000 barrels of No. 2 fuel oil, which, at Box’s request, were to be shown as having been purchased in Adams’ name. Adams verbally confirmed this purchase, and later agreed to purchase an additional 100,000 barrels of regular gasoline from Petrade. After Petrade confirmed that it could purchase the gasoline and oil from its supplier, Gulf States, Petrade sent “confirmation” documents to Adams, the legal effect of which is a substantial issue in the case. After initially agreeing to delivery of the oil on Colonial Pipeline at Pasadena, Texas, Adams asked that the oil be scheduled instead on the Texas Eastern Pipeline, which could route the oil to where Adams had a potential customer. But because the Texas Eastern Pipeline could handle delivery of only 25,000 barrels of the oil in June, the delivery of the remaining oil was delayed. This delay was confirmed by the parties’ writings in June 1979. In mid-June 1979, prices of gasoline and No. 2 oil suffered a severe decline. On July 2, Petrade’s representatives met with Adams and Box to discuss their arrangement. At that meeting, Adams executed a written agreement acknowledging his agreement to purchase the No. 2 oil, but he verbally informed Petrade that he needed more time to pay for it. Box and Adams denied any agreement to buy the gasoline. After further negotiations, Box and Pe-trade’s representative orally agreed to a settlement concerning the No. 2 oil purchase agreement. Under this settlement, Box’s company, OKC Corporation, was to buy 100,000 barrels of No. 2 oil from Pe-trade for later delivery, at a price in excess of the then-prevailing market price; in return, Petrade was to release Box from liability. Adams, on the other hand, was to pay Petrade the sum of $1.3 million dollars, and Petrade would release Adams from liability. Also, Box and Adams would not be required to take delivery of or pay for oil from Petrade under the June 1979 agreement. A written settlement agreement, stating that Adams would pay $1.3 million for a release of any liability on the No. 2 oil contract, was prepared and sent by Adams’ lawyer to Petrade. There was evidence that this writing accurately reflected the terms of the agreed settlement. On July 16, Petrade received a revised settlement agreement from Adams requiring that Pe-trade also release Adams from his alleged obligation under the outstanding gasoline agreements. Petrade refused to do so. As a result, neither Box nor Adams paid Pe-trade for any of the gasoline or for the No. 2 oil. Petrade’s supplier, Gulf States, then demanded adequate assurance of performance on the gasoline that Petrade had agreed to buy in order to fulfill Adams’ contract, and it refused to deliver either the gasoline or the prepaid No. 2 oil without security of $10 million. OKC Corporation later purchased 100,-000 barrels of No. 2 oil from Petrade at a price in excess of the prevailing market price (as provided by the settlement agreement), but Adams never paid Petrade the $1.3 million that was specified in the settlement agreement as the consideration for a release of his liability. Neither did Petrade expressly release Box or Adams of liability under the No. 2 oil purchase agreement. No oil or gasoline was ever delivered to Box and Adams, and this litigation resulted. The cause was tried to a jury, which found: that Box and Adams were partners, and that Adams was Box’s authorized agent in negotiating the agreements to buy gasoline and oil, and also in making the oil settlement agreement; that Adams had orally agreed to purchase the gasoline and oil from Petrade; that Adams had anticipa-torily repudiated his agreement to purchase 200,000 barrels of regular gasoline and breached his agreement to purchase 100,000 barrels of No. 2 oil; that the market price per gallon of gasoline, both at the time of the repudiation and at the time of tender, was $.96 per gallon and that the market price at the time and place of tender of the No. 2 oil was $.91 per gallon; that Petrade tendered to Adams all of the gasoline and No. 2 oil he had agreed to purchase; and that Box was liable as guarantor of Adams’ obligation under the gasoline agreements. The jury favorably answered a series of issues relating to the enforceability of the gasoline agreements under the theory of promissory estoppel, and also found that Petrade was a merchant for purposes of an exception to the statute of frauds section of the Texas Business and Commerce Code. The jury further found that Box and Adams had entered into the settlement agreement with Petrade regarding the No. 2 oil transaction; that the terms of such agreement were that Box or OKC would purchase 100,000 barrels of No. 2 oil from Petrade at $.80 per gallon, and that Adams would pay Petrade $1.3 million in settlement of the claims against him. The jury refused to find that there had been a failure of consideration by Petrade with respect to any of the agreements, or an impossibility of such performance, or that the parties intended that payment for the gasoline and oil would be made only upon receipt of supporting documents. After motions for judgment and for judgment notwithstanding the verdict, the trial court awarded Petrade and Gulf Coast $2,898,000 as damages against Box and Adams, jointly and severally, on the gasoline contracts. This figure apparently represents the difference between the contract and the market price of the gasoline. Judgment was also entered against Adams alone for $1.3 million, the amount that Adams had agreed to pay under the settlement agreement. The court also awarded prejudgment interest and attorney’s fees, and entered a take-nothing judgment as against Box’s Company, OKC. Box and Adams together assert 149 points of error, grouped into parts for purpose of argument. We first address the appellants’ contention that Petrade’s recovery under the alleged gasoline purchase contracts was barred by the statute of frauds. The Texas statute of frauds provides: (a) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing. (b) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of Subsection (a) against such party unless written notice of objection to its contents is given within ten days after it is received. Tex.Bus. & Com.Code Ann. sec. 2.201 (Tex. UCC) (Vernon 1968). Box and Adams contend, in essence, that the two alleged gasoline contracts: (1) are unenforceable as a matter of law under Texas UCC section 2.201(a), and (2) do not satisfy the merchant’s exception to the requirements of 2.201(a), because “no writing in confirmation” was timely sent. Sec. 2.201(b). The appellants also contend that the court erred in submitting to the jury numerous special issues relating to elements of the statute of frauds issues; but these contentions are not argued, so they are waived. Appellants also assert that there was no evidence or insufficient evidence to support the jury’s findings relating to these issues. Section 2.201 of the Texas U.C.C. requires a signed writing sufficient to indicate that a contract for sale has been made. Tex.Bus. & Com.Code Ann. sec. 2.201(a). The appellees concede that no such writing signed by the appellants exists, but contend that the circumstances of this case fall within the “merchant’s exception” to the statute of frauds. The “merchant’s exception” provides, insofar as applicable here, that between merchants, a writing in confirmation of the contract will satisfy the requirements of section 2.201(a) if (1) it is received within a reasonable time, (2) it is sufficient against the sender, and (3) the party receiving it has reason to know fts contents. Tex.Bus. & Com.Code Ann. sec. 2.201(b). Such a confirmation satisfies section 2.201(a) unless written notice of objection is given within 10 days after the confirmation is received. Id. Whether the circumstances of a particular case fall within an exception to the statute of frauds is generally a question of fact. Vehle v. Brenner, 590 S.W.2d 147, 152 (Tex.Civ.App.—San Antonio 1979, no writ). Thus, it is usually for the jury to decide whether the parties were merchants, whether the writing was sent within a reasonable time, and whether the party receiving it had reason to know its contents. But if the writing itself does not, as a matter of law, constitute a confirmation, then the “merchant’s exception” in section 2.201(b) does not apply, and the contract is subject to the statute of frauds. Here, the writing sent by Petrade, purportedly in confirmation of the alleged agreement to purchase gasoline, read as follows: It is undisputed that neither Box nor Adams ever signed the acceptance portion of this writing, and the only question is whether it constituted a confirmation within the meaning of section 2.201(b). The appellants, Box and Adams, contend that this writing was merely an offer, and not a confirmation, because (1) it inquired whether the stated terms were in accordance with Adams’ understanding; (2) it instructed Adams to sign and return a copy if the stated terms did express his understanding; and (3) because it contained a blank signature line that was never signed. Appellants also contend that the writing contains terms that were never discussed and that were at variance with prior discussions, as well as with the industry’s standard terms. Appellants argue that a letter that requires some further action on the part of the recipient to show acceptance, cannot be a confirmation of a prior oral contract and, instead, merely constitutes an offer. In support of this assertion, appellants cite Great Western Sugar Co. v. Lone Star Donut Co., 567 F.Supp. 340 (N.D.Tex.), aff'd, 721 F.2d 510 (5th Cir.1983), which involved a writing similar to the one here. In that case, the document provided: “This letter is a written confirmation of our agreement. Please sign and return to me the enclosed counterpart of this letter sig-nalling your acceptance of the above agreement.” The court held, as a matter of law, that because the letter required a response, it was merely an offer, and not a confirmation, so it did not satisfy the merchant’s exception to the statute of frauds. We first look to the writing to determine whether the intent of the contracting parties is unambiguously expressed. If a writing is unambiguous, its construction is a legal matter to be determined by the court. Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193, 196 (Tex.1962). On the other hand, if the language in the writing is reasonably capable of conflicting interpretations, it is ambiguous, and extrinsic evidence may be considered to ascertain the writing’s true meaning and the parties’ intent. See Great Western Sugar Co. v. White Stokes Co., 736 F.2d 428, 430 (7th Cir.1984). There is language in the letter that indicates that it is a confirmation, i.e., “This confirms arrangements made ... concerning the transaction described below....” But, as appellants correctly point out, whether a writing labels itself a “confirmation” is not determinative of that question. See Great Western Sugar Co. v. Lone Star Donut Co., 721 F.2d 510. Despite the use of the word “confirmation” in the body of the writing, we conclude here, as a matter of law, that there is unambiguous language in the writing that precludes a construction that it was a confirmation of a prior oral contract. The writing specifically states that if the stated “arrangements” were “in accord” with Adams’ understanding, that Adams was to sign and to return one copy of the letter to Petrade. There followed, in capital letters, the word “ACCEPTED” and a blank signature line for compliance with these instructions. These components of the letter clearly required further action by Adams, and we therefore hold, in agreement with the rule stated in Great Western Sugar Co. v. Lone Star Donut, that the writing was only an offer, and not a confirmation of a prior oral contract. The following language in the Great Western Sugar Co. v. Lone Star Donut case is applicable here: By requiring the buyer to take further action in order to signal acceptance (signing and returning a copy of the letter agreement), [seller] indicated to the buyer ... that the terms quoted were still subject to acceptance or rejection rather than representing a memorialization of an oral contract. A true confirmation requires no response. Having presented [the buyer] with a renewed opportunity to weigh the benefits of a bargain and escape it, [the seller] cannot rely on the ... letter agreement to satisfy the requirements of the statute of frauds. 567 F.Supp. at 342 (emphasis added). Although the official commentary to section 2.201 indicates that no specific words are required to confirm an oral contract, we refuse to hold that section 2.201(b) is satisfied by a writing that is clearly conditional upon further acceptance by the buyer. We accordingly sustain the appellants’ points of error asserting that any alleged oral contract was unenforceable under the statute of frauds. Because of the disposition of those points, we do not reach appellants’ points of error that assert other bases for the alleged contract’s invalidity under the statute of frauds. We next move to a consideration of whether the judgment may, nevertheless, be upheld under the doctrine of promissory estoppel. Appellants argue that the trial court did not enter judgment on this basis, because the damages awarded far exceeded those found by the jury in response to special issues inquiring about promissory estoppel. The appellants further argue that even if the judgment was entered or could be upheld on the theory of promissory estoppel, there was no evidence or insufficient evidence to support judgment on that theory. Under the doctrine of promissory estoppel, a promise may be binding if the promisor should reasonably expect that the promise will induce action or forbearance, the promise does in fact induce such action or forbearance, and the enforcement of the promise is necessary to avoid injustice. “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 937 (Tex.1972); First State Bank v. Schwarz Co., 687 S.W.2d 453, 455 (Tex.App.—Dallas 1985, writ ref’d n.r.e.). Thus, the elements of promissory estoppel require proof of: (1) a promise, (2) foreseeability that the promisee would rely on the promise; and (3) substantial reliance by the promisee to his detriment. English v. Fischer, 660 S.W.2d 521, 524 (Tex.1983). Although promissory es-toppel is normally a defensive theory, it may be asserted by a plaintiff as an affirmative ground for relief. Donaldson v. Lake Vista Community Improvement Ass’n, 718 S.W.2d 815, 818 (Tex.App.—Corpus Christi 1986, writ ref’d n.r.e.). We first address the issue of whether the doctrine of promissory estoppel may be asserted to avoid the strict requirements of the statute of frauds under Tex.Bus. & Com.Code section 2.201. Although that section enumerates several exceptions to its requirement of a writing, it does not contain an exception based upon promissory estoppel. Tex.Bus. & Com.Code Ann. sec. 2.201. Section 1.103 of the Code provides generally that principles of law and equity, including estoppel, shall supplement, but not displace, the provisions of the Code. Adams argues that because certain exceptions to section 2.201 are specifically enumerated, the Code provisions displace the judicially created equitable remedy of promissory estoppel. Contrary to Adams’ assertion, Texas courts have held that the doctrine of promissory estoppel may be asserted against the requirements of the statute of frauds. See Kenney v. Porter, 604 S.W.2d 297, 303 (Tex.Civ.App.—Corpus Christi 1980, writ ref’d n.r.e.); H. Molsen & Co. v. Hicks, 550 S.W.2d 354, 356 (Tex.Civ.App.—El Paso 1977, writ ref'd n.r.e.); John H. Pelt Co. v. American Casualty Co., 513 S.W.2d 128 (Tex.Civ.App.—Dallas 1974, writ ref’d n.r.e.). But those courts have also held that the remedy is limited to those cases in which the complaining party relied on an oral promise to furnish a written contract that complied with the statute of frauds. Id. Thus, a party asserting the doctrine of promissory estoppel against the statute of frauds must not only satisfy the requirements of the doctrine, but must also show that the promisor either misrepresented that the statute of frauds had been satisfied, or promised to sign a written agreement. Id.; see “Moore” Burger, Inc., 492 S.W.2d at 937. Here, Adams claims that the record does not contain: (1) any evidence that he promised to sign the writing that was eventually sent; (2) any proof of reliance on such a promise; (3) any showing of foreseeability that Petrade would suffer injury, and (4) any evidence reflecting substantial injury to Petrade as a result of the breach. Appellant Box contends that there is no evidence or insufficient evidence to support the jury’s finding of (1) detrimental reliance or (2) estoppel damages. In deciding “no evidence” points, we consider only the evidence and inferences tending to support the finding, and if there is any evidence of probative force to support the finding, the point must be overruled. Garza v. Alviar, 395 S.W.2d 821, 828 (Tex.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In determining “factual insufficiency” points, we review all of the evidence, both supporting and against the challenged finding; if the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous, the point will be sustained. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 623 (Tex.App.—Houston [1st Dist.] 1987, no writ). The jury found that Box promised to buy 100,000 barrels of gasoline and that Adams agreed to buy 200,000 barrels of gasoline from Petrade. The jury also found that Adams promised to sign a writing reflecting his promises, intending to induce Pe-trade to act or refrain from acting. Further, the jury found that Petrade reasonably and detrimentally relied on Adams’ promises. These findings are supported by Steve Wyatt’s testimony of his negotiations with Adams. Wyatt testified that on June 4, 1979, Adams agreed to buy 200,000 barrels of gasoline and 100,000 barrels of fuel oil from Petrade. Wyatt stated that he discussed the price per 100,000 barrels, as well the time and place of delivery, first with appellant Box, then also with appellant Adams, on the telephone. Wyatt testified that after the terms had been agreed upon, he asked for Adams’ Telex number, so that he could transmit a confirmation, but that Adams said he had no Telex. Wyatt testified that he then said he would send written contracts by mail, and that Adams agreed to sign them and send them back. The writings were not sent out until June 11, after the market price for gasoline had begun to drop sharply. Adams did not sign and return them. Wyatt testified that he called Adams about four days later, when he did not receive the signed contracts back, and that Adams told him that he had received the fuel oil contract but not the gasoline contracts to sign. Wyatt testified that they were sent in the same envelope. He told Adams he would send him another copy, and Adams again said he would sign and return the contracts. In subsequent conversations, according to Wyatt, Adams also assured Petrade that financing would be no problem for the oil and gasoline purchases. When asked repeatedly about signing the gasoline contracts, Adams told Wyatt that he would sign them. Although Petrade, before the transaction with Adams, had already agreed to buy 100,000 barrels of gasoline from its supplier, Gulf States, there was testimony that Petrade agreed to purchase a second 100,-000 barrels of gasoline only in reliance upon Adams’ alleged agreement with Pe-trade. Tracy Dubose, one of Petrade’s founders and its majority shareholder, testified that because Petrade was a small company in a volatile market, it would also have promptly sold the first 100,000 barrels that it purchased from Gulf States, if there had been no transaction with Adams. Du-bose testified that Petrade did not attempt to sell the 200,000 barrels of gasoline to anyone else, because it already had committed the gasoline to the transaction with Adams. Although there was other testimony that contradicted this evidence, the jury, as the trier of fact, was entitled to judge the credibility of the witnesses, to accept or reject any part of the evidence, and to resolve any conflicts in the evidence. Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.),. We find that the evidence is sufficient to support the jury’s finding that there was a promise to buy the gasoline and a further promise to put the agreement in writing, as well as the foreseeability of Petrade’s reliance. We also find there is legally and factually sufficient evidence to support the jury's finding that Petrade relied on the promises. We accordingly hold that the trial court’s determination of the appellants’ liability can be upheld on the theory of promissory estoppel, and we overrule Box’s and Adams’ promissory es-toppel points of error. Because of this holding, we need not reach Box’s points of error 12 and 17 through 25, relating to Petrade’s contract claims. We also do not address Adams’ point of error 4, which is premised on Pe-trade’s contract claim. We next turn to the issue of damages. It is settled law that a party’s damages based on promissory estoppel are “not measured by the profits that such party’s reliance led him to expect, but instead are limited to the amount necessary to compensate that party for a loss already suffered.” Sun Oil Co. v. Madeley, 626 S.W. 2d 726, 734 (Tex.1981); Wheeler v. White, 398 S.W.2d 93, 97 (Tex.1965) (the injured party is to be compensated for his foreseeable, definite reliance, the damages to be measured by the detriment sustained). We reject Petrade’s assertion that contract/market price damages constitute the proper measure of promissory estoppel damages here. Thus, the question presented is whether there are findings, which are supported by legally and factually sufficient evidence, to sustain a judgment for the appellees for reliance damages. In connection with the promissory estop-pel issues, the trial court conditionally submitted special issue number 18, to which the jury found that the sum of $409,231 would adequately compensate Petrade for any damages caused by its reliance upon the appellants’ promises. We conclude that this finding is well within the range of evidence establishing Petrade’s loss as a result of its detrimental reliance on appellants’ promises. There was evidence that Petrade committed itself to buy gasoline from Gulf States in reliance upon its agreements with Adams and Box. Indeed, Petrade prepaid its oil purchase from Gulf States, and after Adams’ and Box’s promises, bought 100,-000 barrels of gasoline in addition to the 100,000 barrels it had previously bought. Also in reliance, Petrade refrained from selling the gasoline it had already purchased, despite the declining market price. When Adams refused to honor his promise to sign the gasoline contracts and then pay for the product, Petrade could not honor its own obligations to buy from Gulf States. When Gulf States learned that Petrade could not perform its agreement to purchase gasoline, it refused to deliver the prepaid oil or to refund Petrade’s money. Petrade lost $3.6 million it had already paid to Gulf States on oil that was never delivered. Both sides contend, in essence, that the jury’s findings on estoppel damages should be disregarded, but for different reasons. The appellants contend that the jury obviously misunderstood or misapplied the facts to the estoppel damages issues, and that there is no evidence to support the jury’s calculation of damages on the reliance issues. On the other hand, the ap-pellees simply argue that the court correctly awarded damages of $2,898,000, based on the difference on the contract and market price measure, and do not address the jury’s award of damages relating to the reliance issues. For the reasons stated earlier, we conclude that the trial court’s award of damages based on the contract theory is erroneous and that the court should have awarded reliance damages in the amount found by the jury in answer to the promissory estoppel issues. Thus, the trial court should have awarded Petrade damages in the amount of $409,231, the sum the jury found would adequately compensate it for damages caused by its reliance on the appellants’ promises. This amount is substantially less than the amount that the evidence shows that Petrade had already paid to Gulf States on oil for Adams that was never delivered as a consequence of Adams’ breach of his promises and Pe-trade’s resulting inability to honor its obligations to Gulf States. But in reviewing the adequacy of damages, we may not substitute our judgment for that of the jury. See Eans v. Grocer Supply Co., 580 S.W. 2d 17, 23 (Tex.Civ.App. — Houston [1st Dist.] 1979, no writ). The award is well within the range of reliance damages supported by the evidence presented on the issue. We note that Petrade merely asserts that the proper measure of estoppel recovery here is the difference between the contract price and the market price and does not specifically complain by cross-point that the sum found by the jury in response to special issue 18 is against the great weight and preponderance of the evidence. In the absence of such a cross-point, we do not review or grant relief on that basis. See Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12 (1957). Indeed, in a reply point, Petrade states that the court properly submitted special issues 13 through 19 and the accompanying instructions and definitions. Neither are we permitted to disregard the jury’s answers to the issues merely because the jury’s reasoning in arriving at its figure may be unclear to us. The mental process by which a jury determines the amount of damages is ordinarily not cognizable by an appellate court. Johnston Testers v. Rangel, 435 S.W.2d 927, 933 (Tex.Civ.App.—San Antonio 1968, writ ref’d n.r.e.); see Sumners Road Boring, Inc. v. Thompson, 393 S.W.2d 690, 697 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n.r.e.). Where the law furnishes no precise legal measure for the recovery of damages, the amount to be awarded is largely discretionary. Recovery will not be denied merely because the exact amount of damage is incapable of being ascertained. See Vance v. My Apartment Steak House, 677 S.W.2d 480, 484 (Tex.1984); Hamblet v. Coveney, 714 S.W.2d 126, 132 (Tex.App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.). The trial court has broad discretion in submitting special issues to the jury, and we will not disturb its exercise of that discretion absent a clear showing of abuse. Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass’n., 710 S.W.2d 551 (Tex.1986); Tex.R.Civ.P. 277, 279. We find that special issue no. 19 should be disregarded. That issue, which was submitted unconditionally in connection with the promissory estoppel series of issues, resulted in the jury’s finding that Petrade had actual “out-of-pocket” loss of $231,000 as a result of its detrimental reliance on the appellants’ promises. We find that the ultimate issue on reliance damages under the promissory estoppel theory is represented by special issue no. 18, in which the jury determined the total amount of compensation to which Petrade was entitled, as damages for its loss in detrimental reliance on appellants’ promises. The damages recoverable in cases of promissory estoppel are the amount necessary to restore the injured party to the position he would have been in had he not acted in reliance on the other party’s promises. Donaldson v. Lake Vista Community Improvement Ass’n, 718 S.W.2d at 818. Trial courts are permitted to submit the controlling issues of a case in broad terms. Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass’n, 710 S.W.2d at 554. Special Issue 19, which inquires about Petrade’s “actual out-of-pocket loss,” relates to only one element of Petrade’s reliance damages under the promissory theory, and does not determine the ultimate question of total reliance damages. Again, we note that Petrade does not by cross-point complain about the form, manner of submission, or the evidentiary support for the damages issues submitted under the theory of promissory estoppel. We overrule the appellants’ points of error relating to the issue of promissory estoppel damages. Because the trial court’s judgment is excessive in the amount of $2,488,769, we will modify the judgment by reducing that award to the promissory estoppel damages amount found by the jury, $409,231. Tex. R.App.P. 80(b). We need not reach Box’s points of error 42 through 61, or Adams’ points of error 51 through 53, which either complain of or are premised upon a recovery by Petrade of contract damages. These points assert error in the court’s instructions to the jury, in the failure to submit Box’s issues, and in the insufficiency of the evidence to support Petrade’s recovery of contract damages. Because we have held that Petrade failed to bind Box and Adams to a legally enforceable contract, but instead could only recover reliance damages on the theory of promissory estoppel, these points have become irrelevant. Box’s points 42 through 61 and Adams’ points 51 through 53 are overruled. We also need not reach Box’s points of error 93 and 94, complaining that the trial court awarded prejudgment interest on Petrade’s contract damages recovery, or Petrade’s cross-point six, complaining that the court should have awarded prejudgment interest of 10 percent rather than six percent on its contract damages recovery. We next consider Box’s points of error 62 through 85, and point 87, in which he challenges the admissibility, and the legal and factual sufficiency, of the evidence supporting the jury’s finding of a partnership or joint venture between Adams and himself concerning the Petrade transactions. Box contends in point of error 78 that the court erred in denying his motion in limine to exclude evidence of his past petroleum-related partnerships or profit sharing arrangements with Adams. He contends that such evidence was irrelevant, prejudicial, remote in time, and therefore inadmissible. The record shows that Box did not object when Adams started to testify about these past oil partnerships, and in the absence of timely objection, any error in the admission of such evidence is waived. Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex.1963). We also overrule Box’s point of error 87, in which he complains that the trial court erred in admitting evidence of the amount of profit received in his past petroleum profit sharing relationship with Adams. Again, we conclude that the complaint is waived by Box’s failure to make a timely, specific ground of objection at time of trial. We also find that the evidence regarding the earlier partnership arrangements between Box and Adams was relevant and admissible on the question of the parties’ general understanding, intent, and course of conduct in this transaction. George Linskie Co. v. Miller-Picking Corp., 463 S.W.2d 170, 173 (Tex.1971); see Allstate Ins. Co. v. Smith, 471 S.W.2d 620, 625 (Tex.Civ.App.—El Paso 1971, no writ); Page v. Hancock, 200 S.W.2d 421, 424 (Tex.Civ.App.—Austin 1947, writ ref’d n.r.e.). Box contends, in point of error 86, that the court erred in allowing Petrade’s counsel to question him about whether he had a motive to deny the existence of a partnership between him and Adams, because of the possible adverse legal consequences of such an admission. Over the objection of Box’s counsel, Petrade’s counsel was permitted to cross-examine Box regarding his use of corporate opportunities that afforded him, as an officer of OKC Corporation, the chance to make a personal gain through referring deals to Adams and splitting profits from such transactions. Box argues that this questioning was impermissible on the ground that evidence of an unproven criminal charge relating to an extraneous offense cannot be used to impair the credibility of a witness’ testimony. See Quesada v. Graham Ice Cream Co., 207 S.W.2d 120 (Tex.Civ.App.—Austin 1947, no writ). We overrule this point of error. The thrust of the questions posed to Box were not directed to whether criminal charges were pending against him, but rather, the inquiry focused on whether Box had a strong motive to deny the fact of any partnership with Adams because of the possible adverse legal consequences of such an admission. Both Box and Adams were asked whether they knew that admitting to a partnership between them could have such consequences. The questioning was directed to Box’s knowledge, concerns, and motives. Generally, a party has the right to cross-examine an adverse party to show interest, bias, or prejudice that would affect the witness’ credibility. Wide latitude is allowed in such cross-examination because the jury is entitled to know any relevant facts that would tend to influence the witness’ testimony. Turner, Collie & Braden v. Brookhollow, Inc., 624 S.W.2d 203, 208 (Tex.Civ.App.—Houston [1st Dist.] 1981), rev’d in part on other grounds, 642 S.W.2d 160 (Tex.1982). The motives that operate on the mind of a witness are relevant and material, and the jury is entitled to know any fact that would tend to influence the witness’ testimony. Frank B. Hall & Co. v. Buck, 678 S.W.2d 612, 628 (Tex.App.—Houston [14th Dist.] 1984, writ ref'd n.r.e.), cert. denied, 472 U.S. 1009, 105 S.Ct. 2704, 86 L.Ed.2d 720 (1985). We hold that the trial court did not abuse its discretion in allowing cross-examination of Box on his motives for denying the existence of a partnership. We next consider Box’s challenge to the legal and factual sufficiency of the evidence supporting the jury’s finding that he and Adams were partners or joint ven-turers with respect to the alleged purchases of gasoline or fuel oil, and in the settlement of the fuel oil claims. Both Box and Adams testified that before 1979, they had been partners for several years in various oil and products transactions, as well as horse breeding and cattle feeding ventures. Both claimed that those partnerships ended before 1979. In those partnership ventures, Box would refer someone who was interested in buying or selling oil or petroleum products to Adams, who would then try to make a profit on the transaction. Box did not contribute capital or otherwise participate in the deal after his initial referral to Adams, and the transactions were usually done in Adams’ name or in the name of Adams’ sole proprietorship, Adams Oil Company. There were no written agreements evincing these past relationships, and Box never received copies of any contracts. Under their arrangement, Box would share either profits or losses on the various transactions with Adams in a 50/50 split. There was evidence that Box made a profit of between four and five million dollars from these partnership ventures between 1974 and 1977. Adams admitted that Box played a similar role in the Petrade transaction, but both Box and Adams denied that they were still partners with respect to that transaction. Steve Wyatt testified that he initially agreed with Box on the price, quantity, place, and time of delivery of 100,000 barrels of gasoline and 100,000 barrels of fuel oil that Petrade was to sell. He said that Box then told him that the oil and gasoline were to be sold to Adams, and that Box said, “We want to put this deal in J.R. Adams’ name.” On Box’s instructions, Wyatt called Adams, who had talked with Box and was familiar with the terms. The paperwork on the deal was sent to Adams. Box arranged to have someone from his own company, OKC, help Adams schedule the delivery of the oil, and Box told Wyatt that he would arrange for “his” bankers to pay Petrade on June 27 for the fuel oil. When payment was not made on that date, Box told Wyatt that his bankers were out of town, but would be back in early July. When oil and gasoline prices fell sharply in June, Box told Wyatt that he “felt bad” about putting Adams into the deal and that he, Box, was going to take half the loss. Adams himself testified that he and Box had agreed to split the losses on the purchases from Petrade. Oscar Wyatt testified by deposition that his son, Steve Wyatt, told him that he, Steve, had made a deal with Box and that he had sold Box fuel oil and gasoline. At trial, he testified that he spoke to Box in June 1979, after Steve had expressed concern about Petrade not being paid on the fuel oil and gasoline contracts. When Wyatt asked Box who Adams was, Box told him, “Mr. Adams is my partner in the oil and horse business.” Steve Wyatt also testified that at the meeting on July 2, 1979, when the fuel oil and gasoline contracts were presented for signature and payment, that Box did most of the talking and said, regarding the fuel contract, “[W]e’re not going to pay you for this gasoline, because no one could take a loss like that.” (Emphasis added.) There was also testimony that Box, on two occasions in July, met with Petrade’s representatives to discuss the transactions. Adams was not present on either occasion. At the second meeting, Box first contended that he had “nothing to do with” the Pe-trade deals, but after he was threatened with suit, he called Adams to talk about the problem. Box then said, “[WJe need to see what we can do about this.” (Emphasis added.) Later, Box referred Adams to a bank in Dallas to finance the loss on the sale of fuel oil from Petrade, and eventually he referred Adams to his (Box’s) attorney for assistance in handling the settlement agreement. A partnership is simply an association of two or more persons who, as co-owners, carry on a business for profit. Tex.Rev.Civ.Stat.Ann. art. 6132b, sec. 6(1) (Vemon 1970). A joint venture has similar aspects but is ordinarily limited to a particular transaction or enterprise. North Texas Lumber Co. v. Kaspar, 415 S.W.2d 470, 473 (Tex.Civ.App.—Dallas 1967, writ ref’d n.r.e.). Whether a particular relationship constitutes a partnership (or a joint venture) depends on the parties’ intent, and each case must be evaluated according to its own circumstances. Davis v. Gilmore, 244 S.W.2d 671, 673 (Tex.Civ.App.—San Antonio 1951, writ ref’d). While the sharing of profits or losses does not necessarily, in itself, establish a partnership or joint venture, see Tex.Rev.Civ.Stat.Ann. art. 6132b, sec. 7(3), it is a factor to be weighed along with other indicia of such a relationship. Proof of the existence of a partnership or joint venture relationship may be based on testimony in the nature of a conclusion. See Alstan Corp. v. Board of Admin. of Chimney Corners Townhouses, 713 S.W.2d 130, 134 (Tex.App.—Austin 1986, writ ref’d n.r.e.); Helbing v. Texas Dep’t of Water Resources, 713 S.W.2d 134, 136-37 (Tex.App.—Austin 1986, no writ). Here, both Box and Adams admitted an ongoing relationship as partners in the petroleum field, and the continuation of that relationship was disputed only by their claim that they terminated their relationship before the Petrade transaction. The jury, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, was not required to accept the explanation of Box and Adams, that their partnership or joint venture relationship had ended. Rego Co. v. Brannon, 682 S.W.2d at 680. We conclude that there is legally sufficient evidence to support the jury’s finding that such a relationship did exist with respect to the Petrade transactions, and that the jury’s findings are not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. We accordingly overrule Box’s points of error 74, 75, and 77. In view of our holding that the evidence is sufficient to support the jury’s finding that Box and Adams were partners or joint venturers, it is unnecessary to discuss Box’s complaints aimed at the jury’s findings that Adams was Box’s agent and that Box orally agreed to assume primary responsibility for Adams’ alleged obligation to Petrade. We note, however, that there is legally and factually sufficient evidence to support the jury’s findings on these issues, and that the jury’s findings are not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In this respect, Steve Wyatt testified that when he asked about Adams’ credit, Box told him “not to worry about credit, I guarantee his credit. In fact, I personally guarantee his credit.” Petrade’s president testified that Petrade agreed to put the transaction documents in Adams’ name, only because he knew that Box was “behind” Adams. He said he did not require that Box sign a written guaranty, because “when you are dealing with the chairman of the board and chief executive officer of a New York listed company, it did not have to be in writing.” Steve Wyatt also testified that in late June 1979, Box said “I just don’t know about that gasoline. But I guarantee you a payment on that 2 oil.” We also find that the jury was entitled to conclude from the evidence that a consideration existed for Box’s alleged promise to pay the debt to Petrade, and that such consideration was Box’s main purpose in agreeing to assume Adams’ obligation as his own. The jury was entitled to consider the testimony that the deal was originally between Box and Petrade, and that at Box’s insistence, the transaction was changed to Adams’ name. It was also entitled to consider the testimony that it was Box who was really “behind” Adams. All of these circumstances were consistent with Box’s intent to make a profit on the transaction, as he had done in prior profit sharing ventures with Adams. Therefore, the jury could reasonably infer from the evidence that Box made the representations because he stood to benefit from the sale to his partner Adams, and that his share of the benefits accruing to the partnership was his “main purpose” for guaranteeing Adam’s obligation. See Gulf Liquid Fertilizer Co. v. Titus, 163 Tex. 260, 354 S.W.2d 378, 382-83 (1962). In points of error 76 and 80, Box contends that the court erred in holding that he was jointly liable with Adams for the alleged settlement of the fuel oil claims. He argues that the evidence is legally and factually insufficient to support the jury’s findings that he and Adams were partners or joint venturers, or that Adams was Box’s agent, with regard to the settlement transaction. We overrule these points. The jury found that Petrade had released, waived, and was estopped from asserting any claim against Box on the fuel oil dispute, and consistent with such findings, the trial court decreed liability only against Adams with respect to the settlement agreement. A party on appeal may not complain of action by the court that does not adversely affect him or that merely affects the rights of others. Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87, 92 (Tex.1973); Providential Inv. Corp. v. Dibrell, 320 S.W.2d 415, 418 (Tex.Civ.App.—Houston 1959, writ ref’d n.r.e.). Points 76 and 80 are overruled. Box further complains in points of error 79 and 81 through 85, about the trial court’s submission of the issues on agency relating to the gasoline sale transactions. He contends that there was no evidence or insufficient evidence to support the jury’s finding that Adams acted as Box’s agent in the transaction. We overrule these points of error. We have previously held that the evidence supports the jury’s findings that Box and Adams were partners, and Adams’ acts, as an agent of the partnership in the gasoline transaction, are binding on the partnership and on Box as a partner. MMP, Ltd. v. Jones, 695 S.W.2d 208, 210 (Tex.App.—San Antonio 1985), rev’d on other grounds, 710 S.W.2d 59 (Tex.1986); Boyd v. Leasing Assoc., Inc., 516 S.W.2d 485, 489 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.). In Adams’ points of error 8 through 20, and 38 through 43, he contends that the court erred in entering judgment against him on the alleged settlement agreement with Petrade. In point 8, Adams claims that enforcement of the alleged settlement agreement is barred by limitations. In points 9 through 17, 19, and 20, he argues that the agreement (1) was a modification of a prior agreement for the sale of goods (subject to the statute of frauds, Tex.Bus. & Com. Code Ann. sec. 2-209 (Vernon 1968)); (2) was a contract for the sale of a chose in action (allegedly subject to the statute of frauds of Tex.Bus. & Com.Code Ann. sec. 1-206 (Vernon 1968)); (3) was made after threats of litigation (allegedly subject to Tex.R.Civ.P. ll’s requirement of a signed writing); and (4) was not enforceable on a theory of promissory estoppel, because of an absence of the elements of reliance and injury. We reject Adams’ contention that Petrade’s claim on the alleged settlement agreement was barred by limitations as a matter of law. Adams points out that the alleged settlement of the fuel oil claims occurred on July 12, or 13, 1979, and that Petrade did not assert a claim based on an oral settlement until December 7, 1983, more than four years later. But Petrade’s original petition in this case was filed on July 30, 1979. If an amended pleading relates to the cause of action asserted in the original petition that is not subject to limitations, then the amendment is also not barred by limitations. Tex.Civ.Prac. & Rem.Code Ann. sec. 16.068 (Vernon 1986). The test is whether the amended claim is wholly based upon a new, distinct, or different transaction or occurrence from the original suit. Id.; Leonard v. Texaco, Inc., 422 S.W.2d 160 (Tex.1967). Here, if there had been no dispute about the transactions with Pe-trade, there would have been no oral settlement of any claims. The oral settlement claim relates to the aggregate of events and dealings between the parties and is not based upon a wholly new, distinct, or different occurrence than the original suit. It is thus not barred by the statute of limitations. See Leonard v. Texaco, Inc., 422 S.W.2d 160. Point of error 8 is overruled. Adams contends in point of error 11 that the agreement was not enforceable because it was a settlement “made in anticipation of litigation.” In support, he relies on the public policy underlying Tex.R.Civ. P. 11, which provides that an agreement “between attorneys or parties touching any suit pending” must be in writing to be enforceable. However, rule 11 “means precisely what it says,” Kennedy v. Hyde, 682 S.W.2d 525, 529 (Tex.1984), and an oral settlement agreement made prior to the initiation of litigation is not subject to its provisions. Unless prohibited by some other rule or statute, such an agreement need not be in writing to be enforceable. See Myers v. Thomas, 502 S.W.2d 941, 943 (Tex.Civ.App.—Beaumont 1973, no writ) (release need not be in writing). Point of error 11 is overruled. Next, Adams contends that the alleged settlement agreement was barred by the statute of frauds because it was a modification of a contract for the sale of fuel. Tex.Bus. & Com.Code Ann. secs. 2.201, 2.209. Section 2.209 provides that agreements modifying contracts must satisfy the statute of frauds of section 2.201 if the modified contract is within that section’s provisions. Section 2.201 requires a writing for the sale of goods of $500 or more. If those sections do not apply, Adams argues that the settlement was the sale of a chose in action, required to be in writing by the “catch-all” provision, governing personal property, of section 1.206. We do not construe the settlement agreement to be a modification, as contemplated by the Code, of a contract for the sale of goods. It is rather, the compromise of and release of Petrade’s claims relating to certain disputes arising out of the parties’ performance, or lack thereof, of obligations under the fuel oil contract. Chapter 2 of the Texas UCC is inapplicable. Nor may the party’s agreement be properly described as the sale of a chose in action, which is defined as the right, not yet reduced to possession by a lawsuit, to receive personal property in the future. Black’s Law Dictionary 305 (4th ed. 1968). The settlement agreement represented the culmination of the parties’ negotiations for the compromise of a dispute. The law has always favored resolution of conflicts through compromise and settlement rather than litigation. Hernandez v. Telles, 663 S.W.2d 91 (Tex.App.—El Paso 1983, no writ). The Texas legislature has expressly declared the state’s policy of encouraging the peaceable settlement of citizens’ disputes, and has placed on the courts the responsibility for carrying out that policy. Tex.Civ.Prac. & Rem.Code Ann. secs. 154.002, 154.003 (Vernon Supp. 1988). Consistent with this policy, we hold that the statute of frauds in sec. 1.206 does not render the verbal settlement agreement in this case unenforceable. See also Meyers v. Thomas, 502 S.W.2d at 943. Because we have found that the settlement agreement was enforceable, we need not reach Adams’ points 13 through 17, and 41 through 43, which contend, alternatively, that the alleged settlement agreement could not be upheld on a theory of promissory estoppel. We also do not reach Adams’ points of error 5 through 7, which concern deficiencies of performance by Pe-trade relating to the fuel oil contracts. Adams admits that the court did not award damages under these contracts. The court entered judgment on the agreement settling the fuel oil claims, and not on the underlying fuel oil contracts themselves. Adams’ points of error 5 through 7, 9,10, 12 through 17,19, 20, and 39 are overruled. We also overrule Adams’ points of error 18 and 38, which assert that there was no evidence or insufficient evidence of a meeting of the minds to establish a settlement contract. On a “no evidence” point, we consider only the evidence and inferences that tend to support the finding, and disregard the evidence to the contrary. King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985). On an “insufficient evidence” point, we review all the relevant evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. In special issue 32, the jury found that on July 12, 1979, a settlement agreement was made between Petrade and J.R. Adams, who was to pay Petrade $1.3 million for the release of his liability. The evidence supports this finding. Mr. Tracy Dubose, a founder and majority shareholder of Petrade who handled the company’s legal and administrative matters, testified that a settlement agreement was “discussed and agreed to completely” with Box, and then adopted by Adams, on July 12, 1979. Dubose testified that he then spoke with Adams’ lawyer, who was to draft a writing reflecting the agreement. A document was drafted that did reflect the terms that had been agreed upon, and that document was admitted into evidence. Adams and his attorney, on the other hand, testified that although there was initial agreement on the wording of the settlement draft, Adams then decided to add a clause covering Petrade’s release of all gasoline claims, in addition to fuel oil claims, in return for the $1.3 million settlement amount. Adams stated that he would not have agreed to settle if only the oil claims had been covered. We find that there is evidence of probative force to support the jury’s finding, and that the finding is not so against the great weight and preponderance of the evidence to be manifestly erroneous. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. It is for the jury to judge the credibility and weight of the testimony. Rego v. Brannon, 682 S.W.2d at 680. We overrule Adams’ points of error 18 and 38. In Adams’ points of error 35 through 37, he contends that the court erred in entering judgment on the alleged fuel oil settlement, because there was no evidence or insufficient evidence to support the jury’s finding that Petrade had the ability to promptly deliver fuel oil to Adams. This point is based on Adams’ statement in his brief, “the jury found in response to Special Issue 57 and 57a that Adams was induced by a false representation to agree to modify the fuel oil contract.” Special issue 57 does not inquire about what induced Adams to settle (or “modify,” as Adams describes it) the fuel oil contract, but rather about what induced him to sign the original fuel oil agreements on July 2, 1979. The jury found that Petrade represented that it had the ability to promptly deliver fuel oil to Adams, and that 25,000 barrels had already been shipped into the pipeline as of July 2, 1979. In special issue 57 a, the jury found that the representation that 25,000 barrels had been shipped was false, but not the representation that Pe-trade had the ability to promptly deliver the No. 2 fuel oil. Adams also asserts that the court erred in not submitting his special issue inquiring whether he was induced to settle by the misrepresentations that 25,000 barrels of fuel oil had been shipped and that Petrade had the ability to promptly deliver fuel oil. We find that there is legally and factually sufficient evidence in the record to support the jury’s finding. There was testimony that Petrade purchased an amount of No. 2 fuel oil from a supplier, Gulf States, to fulfill its contract with Adams and Box. Adams asserts that Petrade did not take actual delivery of any fuel oil and allegedly could not, because of its disputes with Gulf States. But there was evidence in the record that No. 2 fuel oil was available for delivery from Gulf States, and also that because the market had declined dramatically, Petrade could easily have supplied the oil from other sources if Gulf States had refused or failed to deliver. Adams’ points 36 and 37 are overruled. Adams requested a special issue asking the jury to determine whether he was induced to settle the fuel oil claims based on the misrepresentation that Pe-trade had the ability to deliver fuel oil to him. We find that any error in the trial court’s refusal to submit this issue was harmless, because the jury found that there had been no misrepresentation of Pe-trade’s ability to deliver fuel oil, and that finding was supported by the evidence. Adams’ point of error 35 is overruled. In Adams’ points of error 3 and 34, he contends that there was no evidence or insufficient evidence to show that there was a meeting of the minds on the gasoline contract, because the time of payment was uncertain. Adams contends that the industry standard for time of payment was payment upon invoice and supporting (delivery confirmation) documents, but that Petrade expected payment before delivery. Thus, he argues, there was not the required meeting of the minds on an essential term of the alleged contract. Box also complains, in his 13th point, that the court’s charge did not define “agreement” to include a meeting of the minds. Adams makes several factual statements relating to his point of error, but he does not make reference to the record or direct our attention to where the basis for his complaint might be found. See Tex.R. App.P. 74. Because we have held that Petrade is entitled to recover on a theory of promissory estoppel, it is unnecessary that Petrade show that there was a meeting of the minds between the parties on all elements required to form a binding contract. However, even if such a finding were necessary, we find sufficient evidence to support that element of the contract. In special issue 1, the jury found that there was an oral agreement between Adams and Petrade with respect to the purchase of 200,000 barrels of gasoline. The jury was instructed that [tjhere is an agreement between the parties when they express that there is a meeting of the minds as to the essential terms of the subject matter of their agreement. There must be an offer on one side that is accepted as to the essential terms, and such acceptance is communicated by the other side. The determination of whether there was a meeting of the minds must be based on objective standards of what the parties said and did and not on their alleged subjective states of mind. Slade v. Phelps, 446 S.W.2d 931, 933 (Tex.Civ.App.—Tyler 1969, no writ). Steve Wyatt testified that he and Adams agreed by telephone for the sale of 200,000 barrels of gasoline and that, in addition to quantity, they agreed on price, place, and date of delivery. Adams, however, testified that he never would have agreed to an advance payment contract. But when he defined, at trial, the essential elements of a “normal” transaction, Adams included quantity, price, delivery point, and delivery dates, but omitted any specific mention of payment terms. We find that there is sufficient evidence to support the jury’s finding of a meeting of the minds on the essential terms of the agreement. Adams’ points of error 3 and 34, and Box’s point 13, are overruled. In Adams’ points of error 29 through 32, he contends that the court erred in not striking Petrade’s amended petition after its Mary Carter settlement with Gulf States, in preventing Adams from discovering the full nature of the settlement, and in allowing Gulf States to participate in the lawsuit, because its only interest was by Mary Carter agreement with Petrade, and such agreements are void as against public policy. Petrade claims that its “Trial Simplification Agreement” with Gulf States was not a Mary Carter agreement at all, but rather a “mutual dismissal of the opposing claims each party had against the other.” A “Mary Carter” agreement is generally considered to be an agreement (1) settling a dispute between the plaintiff and one of two or more defendants; (2) retaining the settling defendant as a party in the trial; and (3) giving the settling defendant a financial interest in the plaintiff’s recovery against the other defendant. General Motors Corp. v. Simmons, 558 S.W.2d 855, 857-58 (Tex.1977). Under the terms of the agreement between Petrade and Gulf States, Petrade released its claims to its $3.6 million paid to Gulf States for fuel oil that was never delivered, and also assigned to Gulf States 50% of its recovery against Box and Adams. In return, Gulf States released its claims against Petrade on the gasoline supply agreements that Petrade could not honor. We find that this arrangement included the essential elements of a Mary Carter agreement,