Full opinion text
OPINION HINOJOSA, Justice. This dispute arose from a conveyance of real and personal property interests. After appellee, Texacal Oil & Gas (“Texacal”), failed to make scheduled payments on a promissory note, appellant, GXG, Inc. (“GXG”), sought to foreclose on the properties. Texacal sued, seeking to block foreclosure on the properties, cancellation of the deed of trust and promissory note, abatement of the purchase price, quieting of title, and damages. GXG counterclaimed against Texacal and instituted a third-party action against appellee, Ted O’Connor (“O’Connor”), Texacal’s president. GXG sought damages for Texacal’s non-payment of the promissory note, fraud, and civil conspiracy. GXG also asked the trial court to impose a constructive trust and reform the note and deed of trust. A jury found that: (1) GXG did not convey the properties it promised to convey to Texacal, thereby excusing Texacal’s performance, (2) Texacal sustained damages, (3) appellees did not commit or conspire to commit fraud on GXG, (4) Texacal owed $13,200 to GXG on the outstanding promissory note, and (5) there was no mistake necessitating reformation of the deed of trust. The trial court disregarded the jury’s findings on the balance due on the promissory note, some of Texacal’s damages, and no mistake necessitating reformation of the deed of trust. The trial court rendered judgment in favor of GXG for $81,284.34 for the unpaid promissory note, reformed the deed of trust to include all of the properties conveyed, imposed an implied vendor’s lien on all of the properties, and ordered foreclosure on the properties. The trial court ordered that GXG take-nothing against O’Connor. By thirteen points of error, GXG complains the trial court erred by overruling its motions for judgment non obstante veredicto and new trial, by refusing to allow it to present relevant evidence, and by improperly calculating the balance due on the promissory note. By two cross-points, appellees, Tex-acal and O’Connor, contend the trial court erred in disregarding the jury’s findings because there is sufficient legal and factual evidence to support them. We reform and modify the judgment and, as reformed and modified, affirm. 1. Background Facts GXG, Inc., a Texas corporation formed in 1988, owned and operated various oil and gas properties in south Texas (“South Texas properties”). The company is owned by Gwen Knox and her two daughters. Knox is GXG’s president. Brad Gatlin was Knox’s financial advisor and an officer of GXG. Besides the GXG properties, Knox also had legal and beneficial ownership interests in other oil and gas properties held in family trusts. She individually held an interest in the Yates Petroleum Company (“Yates properties”) in New Mexico and was sole beneficiary of a family trust, the Gwendolyn Knox Schmaling Trust (the “Schmaling Trust”), containing oil and gas interests. She shared an equal beneficiary interest with her brother, Jack Knox, and sister, T.K. Helm, in two other family trusts, the T.B. Knox Trust (“the TBK Trust”) and the E.D. Dill Trust (“the Dill Trust”), comprised of several types of property, including stocks and oil and gas interests. In 1991, all of the trusts were terminated and the assets distributed to the beneficiaries. Knox received 100% of the oil and gas properties of the Schmaling Trust. Knox, her brother, and sister each received one-third of the oil and gas properties in the TBK Trust and Dill Trust. Knox’s share of the Schmaling, TBK, and Dill Trusts will hereafter be referred to collectively as the “Knox trust properties.” Ted O’Connor was a mortgage broker in Newport Beach, California. Gatlin and O’Connor had been acquainted since 1980, but were not frequently or regularly in touch. In late 1990 or early 1991, Gatlin contacted O’Connor to discuss a business proposition. Gatlin informed O’Connor that he “ran GXG,” and that GXG’s owners wanted to sell their oil and gas interests. Gatlin told O’Connor that, in addition to the GXG properties, Knox would be receiving oil and gas leases from the settlements of family trusts in 1991, and that these would also be included in the sale. Gatlin and O’Connor agreed that the price of the GXG lands would be $500,000, and the Knox trust properties $550,000. After reaching agreement on the price, O’Connor decided to form a company, Texacal Oil & Gas, Inc., which would acquire both GXG’s and Knox’s properties. Gatlin became a director, vice-president in charge of managing production, and registered agent of Texacal. Gatlin also became a shareholder with a 20% interest in Texacal. The shares had no par value and Gatlin did not invest any capital in exchange for the shares. During negotiations for the sale of GXG’s properties to Texacal, Gatlin informed Texacal that he was a vice-president of GXG and ran all of the company’s operations. He also disclosed his continuing status as Knox’s financial advisor. However, Gatlin did not inform Texacal that some of the oil and gas leases and equipment involved in the negotiations were, in fact, his property rather than GXG’s or Knox’s. Gatlin did not inform GXG or Knox of his status as an officer, director, and registered agent of Texacal. Prior to the closing of the transaction, Texacal engaged Robert Dougherty to perform a study on the oil and gas reserves of the properties Texacal expected to receive. Dougherty, who had previously performed work for GXG, was designated as Texacal’s production superintendent when Texacal was first formed. On Api’il 9,1991, GXG agreed to sell Texacal the South Texas properties and Knox’s trust interests. The purchase price for all of the properties was $1,050,000. The written, executed agreement provided for Texacal to pay $500,000 in cash and to execute a promissory note for $550,000, secured by a deed of trust which encumbered selected portions, but not all, of the Knox trust and South Texas properties. At the closing, Texacal received the assignment for the South Texas properties. As Knox did not yet have possession of the Knox trust properties, the note and deed of trust were placed in escrow with Equitable Bank in Dallas, until the balance of the properties was conveyed. Upon notification, in July 1991, that the remaining assignments had been prepared, Texacal authorized Equitable Bank to release the note and deed of trust to GXG. After receiving the assignment papers, Texacal discovered that only a one-third interest in the Knox trust properties had been conveyed. This discovery led to a falling out between Gatlin and O’Connor, when Gatlin failed to explain why GXG’s conveyance was deficient. Gatlin resigned as a director and officer of Texacal and declared his intention to tender his shares in October 1991. Texa-eal never paid Gatlin compensation for his services as vice-president or director and the shares had no redeemable value. Because Gatlin never returned the stock certifícate, he remained a stockholder until early 1994, when Texacal’s board of directors struck the shares off the company’s books. Knox discovered that Gatlin, who had been her personal financial manager since 1987, had misrepresented his qualifications as a financial advisor, committed numerous acts of fraud in managing her personal and business affairs, and had been rifling her bank accounts, including misappropriating the cash paid by Texaeal. She sued Gatlin in Dallas, and the case was settled for $500,000. Gatlin is not a party to the instant suit and did not appear as a witness. 2. Choice of Law: Texas or California At the trial on the matters before us, GXG elicited from Texacal’s witnesses and from O’Connor a significant amount of testimony concerning the provisions and effects of California law on the issues. In its appellate brief, GXG emphasizes portions of this testimony in support of its arguments. Because the contract does not specify which state’s law controls, Texas courts must look to the principles enunciated in the Restatement (Second) of Conflict of Laws (1971) to decide which state’s law should govern contractual rights and obligations. Maxus Exploration Co. v. Moran Bros., Inc., 817 S.W.2d 50, 53 (Tex.1991). The general rule of section 188 of the Restatement controls our analysis. See id.; see also DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677-78 (Tex.1990). Under that rule, “[t]he rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6.” Restatement (Second) of Conflicts of Laws § 188(1) (1971). We conclude this case has only tenuous ties to California. Ted O’Connor is a resident of California. Most, if not all, of Texacal’s investors reside in California. However, Texaeal is a corporation organized under Texas law, registered and operating in Texas. It has a Texas mailing address, and its registered agent, Henry Harding, is a Texas resident. GXG is also a Texas corporation. Knox is a Texas resident. The bulk of negotiations took place either in Texas or by telephone between Texas and California. Although there is a dispute as to where the contract, note, and deed of trust at issue were drafted, they were executed in Texas, and performance was to take place in Texas. Almost all of the oil and gas properties concerned, with the exception of a field in New Mexico, are located in Texas. We hold that California law is neither controlling nor guiding in this case. Evidence and arguments based on what would be appropriate or legal under California law will not be considered. 3. Denial of Motion for Judgment Non Obstante Veredicto By its first and second points of error, GXG contends the trial court erred in denying its motion for judgment non obstan-te veredicto because its counterclaims and third-party claims were established as a matter of law. A judgment non obstante vere-dicto is proper only if there is no evidence to support the jury’s findings and if the issue is conclusively established as a matter of law. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990); Burns v. Resolution Trust Corp., 880 S.W.2d 149, 151 (Tex.App.—Houston [14th Dist.] 1994, no writ); Crosbyton Seed Co. v. Mechura Farms, 875 S.W.2d 353, 363 (Tex.App. — Corpus -Christi 1994, no writ). Usually, in reviewing the denial of such a motion, we use a “no evidence” standard with respect to the jury’s findings and view the evidence in the light most favorable to the nonmovant, rejecting unfavorable evidence and inferences. Crosbyton Seed Co., 875 S.W.2d at 363; see Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986); Ghegorcyk v. Al Hogan Builder, Inc., 884 S.W.2d 523, 525 (Tex.App.—Corpus Christi 1994, writ denied); Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88, 90 (Tex.App.—Corpus Christi 1992, writ dism’d w.o.j.). In a situation such as this, where the moving party contends that its counterclaims and third-party claims are established as a matter of law, we review the record for evidence which, if believed, negates an element of the counterclaim or establishes the complete absence of proof of an element. If there is some probative evidence supporting the verdict, we must affirm the trial court’s denial of the motion. Crosbyton Seed Co., 875 S.W.2d at 363. GXG contends it was entitled to judgment non obstante veredicto because it proved Texacal committed fraud upon GXG, and O’Connor committed or conspired with Gatlin to commit fraud upon GXG. The questions submitted to the jury asked simply, “Did Texacal Oil & Gas, Inc. commit fraud against GXG, Inc.?” and “Did Ted O’Connor commit fraud or conspire to commit fraud with Brad Gatlin against GXG, Inc.?” The jury was given several definitions of fraud. One definition covered a situation where a party knowingly misrepresented a past or existing material fact or recklessly made a positive assertion without any knowledge of the truth with the intention of inducing reliance which resulted in damage to the other party. DeSantis, 793 S.W.2d at 688; Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185 (Tex.1977); Garner v. Corpus Christi Nat. Bank, 944 S.W.2d 469, 477 (Tex.App.—Corpus Christi 1997, writ denied). Another definition encompassed a situation where a party conceals or fails to disclose a material fact with the intent to induce another party to take some action, and the party knows the relying party is both ignorant of the concealed fact and lacks an equal opportunity to discover the truth. Formosa Plastics Corp., USA v. Presidio Eng’rs & Contractors, Inc., 941 S.W.2d 138, 144 (Tex.App.—Corpus Christi 1995), rev’d on other grounds, 960 S.W.2d 41 (Tex.1998); New Process Steel Corp. v. Steel Corp., 703 S.W.2d 209, 214 (Tex.App.—Houston [1st Dist.] 1985, writ refd n.r.e.); see also Custom Leasing, Inc. v. Texas Bank & Trust Co., 516 S.W.2d 138, 142 (Tex.1974). The jury charge also defined fraud as falsely promising to act without intention of keeping the promise in order to induce a party relying on the promise to enter into a contract. Tex. Bus. & Com.Code Ann. § 27.01(a) (Vernon 1987) (fraudulent misrepresentations made in real estate and stock transactions). The definitions were identical for each question. No instructions or definitions concerning the relationship between principal and agent were provided. The jury found that neither Texacal nor O’Connor committed fraud. GXG alleged Gatlin acted as a dual agent, and Texacal and O’Connor fraudulently concealed the dual agency and Gatlin’s interest in Texacal as a shareholder, director, officer, and registered agent. In this case, Gatlin was expressly authorized to act as an agent for GXG. Texacal never denied GXG’s assertions that Gatlin was its agent as well. There is no dispute that Gatlin made misrep-reservations and faded to disclose information to GXG. GXG claims that it has the right to recover from Texacal and O’Connor for those misrepresentations. Double agency normally requires the fully informed consent of both principals. Armstrong v. O’Brien, 83 Tex. 635, 19 S.W. 268, 274 (1892); Grundmeyer v. McFadin, 537 S.W.2d 764, 772 (Tex.Civ.App.—Tyler 1976, writ ref d n.r.e.). However, a principal may not generally recover from another on the basis of a misrepresentation made to him by his own agent. Traylor v. Gray, 547 S.W.2d 644, 651 (Tex.Civ.App.—Corpus Christi 1977, writ ref'd n.r.e.); Kunkel v. Poe Land & Devel. Co., 393 S.W.2d 191, 196 (Tex.Civ.App.—Corpus Christi 1965, no writ). One principal of a dual agent may be liable to the other principal for the tortious acts of the dual agent only if he or she is in some manner directly connected with the agent’s wrongdoing. See Rich v. McMullan, 506 S.W.2d 745, 749 (Tex.Civ.App.—San Antonio 1974, writ refd n.r.e.); see also United Ass’n of Journeymen & Apprentices of Plumbing & Pipefitting Indus. of U.S. & Canada v. Borden, 160 Tex. 203, 328 S.W.2d 739, 744 (1959). A third person who knowingly .participates in an agent’s breach of his duty of a fiduciary, becomes a joint tortfeasor and is equally liable with the agent. See Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509, 514 (1942). Based on these precedents, we conclude that knowledge of a dual agent’s fraudulent conduct towards one principal is not automatically imputed to the other principal. The evidence must demonstrate an affirmative link, not mere suspicion. A review of the record reveals no evidence of any misrepresentations or omissions chargeable to Texacal or O’Connor. Knox recited numerous acts of fraud perpetrated by Gatlin as her financial advisor. Lengthy tape-recorded conversations between Knox and Gatlin were played for the jury. In talking with Knox, Gatlin never once implicated Texacal or O’Connor in any of his activities. Tape-recorded conversations with O’Connor likewise reveal no knowledge of or participation in any misrepresentations made by Gatlin. On the contrary, they reveal that Gatlin made material misrepresentations to O’Connor. Knox repeatedly admitted having no knowledge whatsoever of any involvement on the part of Texacal or O’Connor in Gatlin’s shenanigans. She was unable to cite even one instance of wrongdoing by O’Connor or Texacal. GXG presented no evidence showing that Texacal or O’Connor were aware of or encouraged any of Gatlin’s misrepresentations or failures to make disclosures. Knox simply maintained that because O’Connor and Gatlin were associated, O’Connor must have known of and participated in Gatlin’s schemes. Knox acknowledged that Texacal and O’Connor had not prevented her or GXG from having legal counsel draft or approve any of the documents or represent her at the closing. O’Connor testified that the contract, promissory note, and deed of trust had been drafted by Knox’s attorneys in Dallas then forwarded to him for review. Knox could not say who prepared them, only that she believed it had been done in California by Texacal’s lawyers. Knox further admitted that she trusted Gatlin to handle all negotiations for GXG and figure out a good price for the properties. Although she saw the contract and possibly other papers before the closing, she did not bother to read them thoroughly or ask many questions about them. Knox never testified that Gatlin prevented her from reading the contract, the note, or the deed of trust. As a rule, she said, she signed documents presented by Gatlin without reading them and, thus, could not testify as to the contents. Knox was present at the closing and signed the documents but admittedly did not take time to read them. We have previously held that a party who signs a contract is charged with notice of its contents as a matter of law. D. Wilson Const. Co., Inc. v. McAllen Indep. Sch. Dist., 848 S.W.2d 226, 229-30 (Tex.App.—Corpus Christi 1992, writ dism’d w.o.j.); Estate of Degley v. Vega, 797 S.W.2d 299, 304 (Tex.App.—Corpus Christi 1990, no writ); see also G-W-L, Inc. v. Bobichaux, 643 S.W.2d 392, 393 (Tex.1982) (parties to a contract have an obligation to protect themselves by reading what they sign), overruled on other grounds, Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349 (Tex.1987); Thigpen v. Locke, 363 S.W.2d 247, 254 (Tex.1962). GXG points to the disclosure paragraph in the contract as the fundamental evidence of fraud. GXG claims this proves it had no knowledge of the agency or Gatlin’s conflict of interests and, “as a matter of law [proved] that Knox relied upon Texacal’s and O’Con-nor’s representations as to Gatlin’s relationship with Texaeal.” Paragraph V(A)(3) of the contract states as follows: Buyer and Seller hereby acknowledge a pre-existing relationship by and between the President of GXG, Inc. (Gwen Knox), the President of Texaeal Oil & Gas, Inc. (Ted O’Connor), and Brad Gatlin. Buyer and Seller agree that the purchase of mineral interest contemplated herein is for the mutual benefits of each corporation. Buyer and Seller acknowledge no commissions or finders’ fee, or any cash settlement has been or will be incurred for Brad Gatlin. Buyer and Seller shall hereby defend, indemnify, save and hold harmless Brad Gat-lin for the transactions contemplated herein, past, present and future. Seller further acknowledges its understanding of Buyer’s intent to employ Brad Gatlin in connection with the management and/or operation of all, or a portion of the lease interests conveyed hereunder and expressly waives any and all elaim(s) Seller may have as against Buyer or Brad Gatlin in any way connected with such employment. The paragraph does not detail the nature and the extent of the relationships between the people and entities named. GXG complains that it fails to mention Gatlin’s status as officer, director, registered agent, and shareholder of Texaeal and further fails to disclose that Gatlin acted as a dual agent. We note that it likewise fails to mention Gatlin’s status as an officer of GXG and as Knox’s financial advisor. Knox’s testimony does not reflect that she informed Texaeal or O’Connor of Gatlin’s status or knew whether Gatlin had made such disclosures. Knox admitted seeing the disclosure paragraph before the closing. The paragraph clearly reveals that Gatlin had accepted an offer of employment with Texaeal, impliedly contingent on the successful closing of the deal. This produces an obvious conflict of interest on the part of Gatlin, GXG’s agent. Despite knowing of the conflict of interest, GXG did not terminate the agency and failed to oversee or review Gatlin’s actions, disregarding the temptation of self-interest and opportunity for disloyalty. Dennis Delahanty, a California attorney who was present at the closing, recalled a discussion in Knox’s presence about Gatlin’s interests in Texaeal, including ownership and management interests. Although Delahanty could not remember the specifies, he stated unequivocally that no attempt was made to keep the information from Knox. Knox, on the other hand, insisted she had no knowledge of Gatlin’s interests. No other witnesses testified about what was discussed concerning Gatlin at the closing. As the trier of fact, the jury is the sole judge of the credibility of witnesses and the weight to be given their testimony. L & F Distrib. v. Cruz, 941 S.W.2d 274, 281 (Tex.App.—Corpus Christi 1996, writ denied); Silva v. Enz, 853 S.W.2d 815, 817 (Tex.App.—Corpus Christi 1993, writ denied). In resolving contradictions and conflicts, the jury may choose to believe all, part, or none of the testimony of any witness in arriving at the finding which it concludes is the most reasonable under the evidence. L & F Distrib., 941 S.W.2d at 281; Silva, 853 S.W.2d at 817. The jury reasonably may have chosen to believe Knox learned of Gatlin’s interests from the conversation among those present at the closing. Knox certainly knew that Gatlin had an ownership interest in Texaeal sometime before June 1992. She also knew that some of the properties included in the conveyance to Texacal belonged to Gatlin rather than herself or GXG. Despite this knowledge, she accepted a payment directly from Texacal in May 1992, and from January to July 1993, accepted payments from Mesa Oil, which were assigned to GXG by Texacal. By continuing to accept funds after learning of her former agent’s interest in Texacal, and the properties Texacal acquired, GXG, as a matter of law, affirmed the contract and waived any recovery under a theory of fraud. Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892, 895 (Tex.1960) (party who became aware of fraudulent inducement after entering into contract but received and accepted benefits in spite of knowledge acquired, thereby affirmed contract and was bound by its terms); Wise v. Pena, 552 S.W.2d 196, 200 (Tex.Civ.App.—Corpus Christi 1977, writ dism’d w.o.j.) (if defrauded party ratifies agreement, any right of recission or damages is waived); see Rosenbaum v. Texas Bldg. & Mortgage Co., 140 Tex. 325, 167 S.W.2d 506, 508 (1943); Newsom v. Starkey, 541 S.W.2d 468, 472 (Tex.Civ.App.—Dallas, writ refd n.r.e.) (acceptance of payments after learning agent was a principal resulted in waiver). GXG also contends that O’Connor conspired with Gatlin to defraud GXG. The jury was not instructed on the elements of conspiracy to commit fraud. When a party does not submit to the trial court requested definitions and instructions in substantially correct form, the party waives error. Downen v. Texas Gulf Shrimp Co., 846 S.W.2d 506, 508 (Tex.App.— Corpus Christi 1993, writ denied); National Fire Ins. Co. v. Valero Energy Corp., 777 S.W.2d 501, 507-08 (Tex.App.—Corpus Christi 1989, writ denied); see Tex.R. Civ. P. 274. GXG raised no objections to the submission of the question despite the omission, thereby waiving the error. See Tex.R. Civ. P. 273, 274, 278; see also Russell v. City of Bryan, 919 S.W.2d 698, 707 (Tex.App.—Houston [14th Dist.] 1996, writ denied). After reviewing the record, we conclude there is ample evidence to support the jury’s finding that neither Texacal nor O’Connor committed fraud. We hold the trial court properly denied GXG’s motion for judgment non obstante veredicto. Accordingly, GXG’s first and second points of error are overruled. 4. Denial of Motion for New Trial By its third and fourth points of error, GXG contends the trial court erred in overruling its motion for new trial because the jury’s findings that Texacal did not commit fraud upon GXG and that O’Connor did not commit or conspire to commit fraud upon GXG were against the great weight and preponderance of the evidence. A trial court has broad discretion to deny a motion for new trial, and this denial will not be disturbed on appeal absent an abuse of that discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984); Moya v. Lozano, 921 S.W.2d 296, 298 (Tex.App.—Corpus Christi 1996, no writ). An appellate court may reverse a trial court for abuse of discretion only if, after searching the record, it is clear that the trial court’s decision was arbitrary and unreasonable. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987); Brown v. Hopkins, 921 S.W.2d 306, 311 (Tex.App.—Corpus Christi 1996, no writ). GXG’s arguments do not focus on the trial court’s exercise of its discretion, instead they focus on the factual sufficiency of the evidence. When a party with the burden of proof attacks the factual sufficiency of a jury finding, his point of error on appeal should be that the jury finding is “against the great weight and preponderance of the evidence,” instead of complaining that the trial court erred in not granting a motion for new trial. See Heard v. Roos, 885 S.W.2d 592, 594 (TexApp. — Corpus Christi 1994); Lopez v. Salazar, 878 S.W.2d 662, 662-63 (Tex.App.— Corpus Christi 1994, no writ). When we review a point of error that a jury finding is against the great weight and preponderance of the evidence, we examine the entire record and set aside the verdict only if it is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985); Hickey v. Couchman, 797 S.W.2d 103, 110 (Tex.App.—Corpus Christi 1990, writ denied). After reviewing the evidence in addition to that discussed under points one and two above, it is patently clear that the jury’s findings against GXG’s counterclaims of fraud are not against the great weight and preponderance of the evidence. When he first approached O’Connor, Gatlin told him one of the reasons GXG and Knox wished to sell them oil and gas interests was to raise cash to meet a million dollar tax liability. Gatlin represented that the $1,050,-000 asking price was low because of the urgent need to raise money. Gatlin suggested to O’Connor that some attorneys, possibly Knox’s own attorneys, had expressed interest in buying the property at a price of $1.5 million, cash. The evidence of Knox’s awareness of the alleged cash offer is conflicting. According to Delahanty, Knox was present when Gatlin repeated the representation at the closing. Knox contends the stoiy of the tax liability is false. Knox admits learning of the purported $1.5 million cash offer at some unspecified time, but asserts that Texacal’s interest in closing the deal for $1,050,000 was intended to take advantage of her ignorance of the counter-offer. We find no evidence in the record that a $1.5 million cash offer was actually made by another party at any time. It is unclear who drafted the contract, promissory note, and deed of trust. O’Con-nor testified that Gatlin had obtained the documents from Knox’s attorneys in Dallas. O’Connor’s California attorney, William Bis-sell, added disclosure language, although it is uncertain whether Bissell’s addition to the draft was reflected verbatim in the final contract. Knox contended O’Connor’s attorneys in California had prepared the documents. There is no positive evidence from which we can determine who drafted the contract, note, or deed of trust. GXG complains the parties agreed that Gatlin would not receive a “finder’s fee” for arranging the transaction. Later, when Knox discovered Gatlin’s 20% interest in Texacal, O’Connor explained that it was “like a finder’s fee,” and that Gatlin had demanded it as part of his compensation for managing Texacal’s properties in Texas. Even if we were to assume that Gatlin’s interest in Tex-acal was a finder’s fee, we find no evidence in the record that GXG relied on the statement (that no finder’s fee would be involved) or that the statement had any effect on GXG’s decision to enter into the contract. The record reflects that Gatlin never received any pecuniary compensation from Texacal for his services, in the form of a finder’s fee or anything else. GXG contends the promissory note contains a “bizarre term” which, in essence, resulted in some of Knox’s own funds being used to pay the note. The promissory note required Texacal to perform legal work necessary to clear a title problem on the Yates properties conveyed to it by GXG. The income generated prior to the conveyance was to be held in suspense until the title was cleared, at which time the funds would be released to Knox and then applied to Texacal’s note. Although the term may be atypical, there is no evidence as to how or why it came to be included in the promissory note. GXG does not contend it had no opportunity to review the note’s terms before the closing. Nearly two years after receiving the Yates property, Texacal succeeded in clearing the title as agreed. The same is true of the deed of trust, which encumbers some but not all of the properties conveyed to Texacal. GXG was not prevented from examining the deed of trust before the closing. In fact, the evidence suggests that Knox did review it. We note that the list of the Knox trust properties to be conveyed, names without descriptions, fills almost two pages; and that the descriptions of the properties encumbered by the deed of trust is also only two pages long. A cursory glance would have revealed the fact that only certain properties were eneum-bered by the deed of trust. O’Connor testified that the properties covered by the deed of trust were all valuable, producing properties, while those excluded were non-producing or otherwise undesirable properties. Knox did not refute this contention, except to state that she had expected all of the properties conveyed to be encumbered, including those sold outright for cash. GXG argued that Texacal and O’Connor failed to exercise due diligence in approaching the transaction as they did not request title work be done on the properties to be conveyed nor retain Texas counsel to represent them in negotiating and drafting of documents. Pointing to O’Connor’s experience in California real estate transactions and knowledge of California real estate law, GXG contends Texacal’s less than meticulous approach to the deal with GXG is evidence it actively participated in the fraud perpetrated by Gatlin. O’Connor freely admitted he had no experience in oil and gas properties and no knowledge of Texas oil and gas law. He relied totally on Gatlin, whom he believed to be highly experienced and knowledgeable, to advise him and to handle the necessary investigations and preparations. GXG acknowledges that O’Connor “trusted” Gatlin to do right by him, just as GXG likewise trusted Gatlin. The misplacement of trust and reluctance to attempt its own investigation may reflect poorly on Texacal’s business acumen, but it is not per se indicative of fraud. As for Texacal’s failure to retain Texas counsel, GXG emphasized that O’Connor is a Californian. O’Connor testified that, in California, lawyers are not routinely engaged for property transactions. During negotiations, O’Connor contacted a woman he believed was Knox and asked her to authorize the release of information concerning the cash flows on some of the properties to be included in the sale. Although Knox denied ever speaking with O’Connor before the closing, Knox tape recorded a telephone conversation she had with O’Con-nor concerning the cash flows sometime after the closing. The conversation suggests Knox may have had knowledge of O’Connor’s pre-sale request for cash flow information. It appears both parties trusted Gatlin to make fair disclosures. Gatlin informed Knox prior to the closing that some oil and gas interests and equipment owned by persons other than Knox and GXG, including property Gatlin owned, would be included in the sale to Texacal. Texacal did not learn of this until just before closing; the revelation was not made by Knox or GXG. After the sale to Texacal closed, Knox sued Gatlin for fraud, misappropriation of funds, and breach of fiduciary duty. The case was settled for $500,000. The action against Gat-lin produced literally rooms full of evidence. Despite this extensive discovery, Knox acknowledged there was no evidence linking Texacal or O’Connor to Gatlin’s misconduct. Knox nonetheless insisted that she knew, “he and [Gatlin] were orchestrating the entire transaction,” and “I assume [fraud]” because O’Connor and Gatlin worked together and “all the things in drawing up the Texacal transaction was very much for them, not for me.” A motion for new trial cannot rest on a subjective presumption of “guilt by association.” Moreover, the contract provided for Knox to receive $1.05 million for properties actually worth less. Finally, GXG urges “the most telling aspect of the fraud upon GXG” is that Texacal has not attempted to rescind the contract and “is obviously happy with what they received.” However, the record reflects Texacal brought this action against GXG, accusing GXG of deficiencies in the conveyance and seeking abatement of the purchase price, cancellation of the note and deed of trust, quieting of title, and damages for breach of contract. After reviewing the record, we find no evidence of fraudulent conduct by either Tex-acal or O’Connor. We hold the trial court did not abuse its discretion in denying GXG’s motion for new trial. GXG’s third and fourth points of error are overruled. 5. Estoppel of Texacal’s Breach of Contract Claims By its fifth, sixth, and seventh points of error, GXG contends that Texacal is es-topped as a matter of law from asserting a breach of contract offset claim and that GXG is excused from its failure to comply with the sale and purchase contract because Texacal engaged in wrongful conduct and collusion with GXG’s agent and is, thus, estopped from asserting any breach of contract claim against GXG. Because we have concluded the jury correctly determined that neither Texacal nor O’Connor committed fraud, and that they were not participants in any fraud perpetrated by Gatlin, we overrule GXG’s fifth, sixth, and seventh points of error. 6. Doctrine of Merger By its eighth point of error, GXG complains the trial court erred in denying its motion for judgment non obstante veredicto on GXG’s note claims because Texacal’s breach of contract claim is barred as a matter of law by the doctrine of merger by deed. Although Texacal contends this theory was not pleaded by GXG, we find that it is clearly included as an affirmative defense in GXG’s third amended answer and counterclaim. The merger doctrine is an analogue of the parol evidence rule and functions to prevent enforcement of prior or contemporaneous transactions on the assumption that all agreements merged into the final executed contract. Hallmark v. Port/Cooper-T. Smith Stevedoring Co., 907 S.W.2d 586, 590 (Tex.App.—Corpus Christi 1995, no writ); Watkins v. Hammerman & Gainer, 814 S.W.2d 867, 870 (Tex.App.—Austin 1991, no writ). The doctrine of merger by deed operates to merge all prior transactions between the parties into the deed. Turberville v. Upper Valley Farms, Inc., 616 S.W.2d 676, 678 (Tex.Civ.App.—Corpus Christi 1981, no writ). Although a review of the denial of a motion for judgment non obstante veredicto usually requires a “no evidence” standard with respect to the jury’s findings and a review of the evidence in the light most favorable to the nonmovant, Crosbyton Seed Co., 875 S.W.2d at 363, the applicability of the doctrine of merger is a question of law because it is the court, not the jury, that interprets an unambiguous deed. French v. Chevron U.S.A. Inc., 896 S.W.2d 795, 796 (Tex.1995); State v. Brazos River Harbor Nav. Dist., 831 S.W.2d 539, 542 (Tex.App.—Corpus Christi 1992, writ denied). It is also for the trial court to determine if the agreement at issue is free of ambiguity. See Sage Street Assoc. v. Northdale Const. Co., 863 S.W.2d 438, 445 (Tex.1993) (even if neither party pleads ambiguity, a trial judge may conclude a contract is ambiguous). If an agreement is ambiguous, extrinsic evidence becomes admissible to clarify its meaning. Kauffman v. Deignan, 227 S.W.2d 271, 275 (Tex.Civ.App.—Galveston 1949, writ ref'd n.r.e.). Evidently the trial court found the deed to be ambiguous. Sage Street Assoc., 863 S.W.2d at 445 (despite absence of pleading, court may conclude an ambiguity is present and allow submission of the issue to the jury); Neece v. A.A.A Realty Co., 159 Tex. 403, 322 S.W.2d 597, 599 (1959) (by submitting issues to the jury designed to ascertain the parties’ agreement, “the trial judge evidently considered that the written instrument was ambiguous.”). Since no findings of fact or conclusions of law were filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex.1987); Commercial Union Ins. Co. v. La Villa Indep. Sch. Dist., 779 S.W.2d 102, 104 (Tex.App.—Corpus Christi 1989, no writ); Turberville, 616 S.W.2d at 678. This Court’s duty is to presume that every fact issue supported by the evidence was resolved in the appellee’s favor. Turberville, 616 S.W.2d at 678; Plata v. Guzman, 571 S.W.2d 408, 410 (Tex.Civ.App—Corpus Christi 1978, writ ref'd n.r.e.). The assignment of the properties conveyed to Texacal by GXG, executed by Knox on June 1, 1991, states, in relevant part, as follows: GXG ... does GRANT, SELL, CONVEY, TRANSFER, and ASSIGN unto TEXACAL OIL AND GAS, INC .... all of the interest conveyed to Assignor’s [GXG’s] predecessor in title, Gwendolyn Knox, et al, from the T.B. Knox Trust to Gwendolyn Knox, et al, and including but not limited to an undivided one third (1/3) interest in and to the leases, lands, property and interests described in the attached Exhibit “A”. All of the T.B. Knox trust properties are included in Exhibit “A.” Looking within the four corners of the deed does not clarify the meaning of the phrase “including but not limited to” as placed in the assignment. On the attachments, the phrase precedes the description of the interests and is coupled with a cite to a referencing document that supplements the description, leading to the reasonable construction that the phrase “including but not limited to” means the equivalent of “more or less.” This covers errors in calculations, be they large or small. Such errors are determinable by examining the referenced documents. However, if we apply the interpretation of “more or less” to the assignment, then examine the referenced documents, we are unable to determine the limits of “more or less.” Although the assignment recites that conveyance is made to Gwen Knox “and others,” there is no other language in the assignment or in any of the attached pages to suggest that any other parties have claims to the interests conveyed, much less identify such persons. “More” could then be interpreted to mean as much as 100%. “Less” could be interpreted as low as 0%. We cannot discern the limits from the four corners of the assignment or the attachments. Moreover, the clauses conflict. The first clause conveys “all” of the interests in the T.B. Knox Trust to Texacal, whereas the second purports to convey only a one-third interest in the properties described in the attachments which include descriptions of the T.B. Knox trust properties. If we harmonize the two clauses, the placement of the phrase “including but not limited to” could be interpreted as meaning a three-thirds conveyance is contemplated with a one-third conveyance presently achieved. Because the phrase “including but not limited to” as used is indefinite and results in more than one interpretation, it is ambiguous. See Brown v. Havard, 593 S.W.2d 939, 941-42 (Tex.1980) (explaining test for ambiguity). Although the few cases discussing the doctrine of merger by deed mention that the doctrine is subject to avoidance when there is an allegation and proof of fraud or mistake in the execution of the deed, Turberville, 616 S.W.2d at 678; Forister v. Coleman, 418 S.W.2d 550, 563 (Tex.Civ.App.—Austin 1967), writ ref'd n.r.e., 431 S.W.2d 2 (Tex.1968), a written deed is a type of contract. Orbeck v. Alfei, 276 S.W. 947, 947 (Tex.Civ.App.—Waco 1925, no writ). The doctrine of merger is inapplicable where there is an allegation of fraud, mistake, or accident, or an ambiguity in the contract. Swanson v. Schlumberger Tech. Corp., 895 S.W.2d 719, 729 (Tex.App.—Texarkana 1994, writ granted) (citing Commercial Bank, Unincorporated, of Mason, Tex. v. Satterwhite, 413 S.W.2d 905, 909 (Tex.1967)); Kauffman, 227 S.W.2d at 275 (principles of law permit referral to agreement upon which deed is founded to explain an ambiguity in deed); see Boy Scouts of Am. v. Responsive Terminal Sys., Inc., 790 S.W.2d 738, 745 (Tex.App.—Dallas 1990, writ denied) (in absence of fraud, mistake, accident, or ambiguity, presumption is that all prior agreements merged in final written instrument); Davis v. Andrews, 361 S.W.2d 419, 423 (Tex.Civ.App.—Dallas 1962, writ ref'd n.r.e.) (in absence of ambiguity, deed is enforced as written). Because the doctrine of merger is not applicable, we hold the trial court did not err in denying GXG’s motion for judgment non ob-stante veredicto on this ground. Appellant’s eighth point of error is overruled. 7. Factually Sufficient Evidence of Interest Conveyed The jury found that the agreement between the parties was for the conveyance of a three-thirds interest in the Knox trust properties, not the one-third interest actually conveyed. The jury also found that the difference between the value of the properties contracted for and the value of the properties actually received was $330,000. The trial court accepted the jury’s findings and adjusted the initial balance of the promissory note from $550,000 to $220,000, then used the $220,000 as its starting point in reaching its judgment award for GXG of $81,284.34. By its ninth point of error, GXG contends the trial court erred in overruling its motion for new tidal because the jury’s finding that GXG agreed to convey three-thirds of the trust properties to Texacal was not supported by factually sufficient evidence. The grantor’s intent is a question of fact, thus a question for the jury. Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex.1978). Because of the ambiguity in the deed, the jury could look to the Purchase and Sale Agreement to determine the parties’ intentions as to the assignment. Kauffman, 227 S.W.2d at 275. The Purchase and Sale Agreement contains an integration clause and is not ambiguous. Therefore, parol evidence regarding its terms could be properly disregarded. Texarkana & Ft. S. Ry. Co. v. Brass, 260 S.W. 828, 830 (Tex. Comm’n App.1924, judgm’t adopted) (inadmissible parol evidence, objected to or not, is “without probative force and will not support any finding”); Smith v. Smith, 794 S.W.2d 823, 828 (Tex.App.—Dallas 1990, no writ) (an integration clause is in essence the merger doctrine memorialized); see also Sun Oil Co. v. Madeley, 626 S.W.2d 726, 731 (Tex.1981) (effect should be given parties’ intention as expressed or apparent in the writing); Trinity Universal Ins. Co. v. Ponsford Brothers, 423 S.W.2d 571, 575 (Tex.1968). The Purchase and Sale Agreement states, in relevant part, as follows: I. PURCHASE AND SALE Seller agrees to sell and convey and Buyer agrees to purchase and pay for all oil and gas properties more particularly described in Exhibit A and B, subject to the terms and conditions set forth herein, including the following: (A) All right, title and interest of Seller as disclosed by Seller to Buyer in, to and under all agreements, product purchase, and sale contracts, leases, permits, rights-of-way, easements, licenses, options and orders in any way relating thereto. (B) Identical undivided interest in and to all of the personal property, fixtures and improvements on the Land, appurtenant thereto or used or obtained in connection therewith or with the production, treatment, sale or disposal of hydrocarbons or water produced therefrom or attributable thereto and all other appurtenances belonging thereto. (C) As indicated above, this sale includes all personal property, fixtures, and improvements (“Personal Property”). All personal property is to be sold on an “as is” and “where is” basis with all faults, if any and title to which shall be transferred to Buyer by Seller free and clear of any and all liens, claims or liability. (D) Also conveyed by Seller is all right, title and interest in and to the entire estate created by leases, licenses, permits and other agreements. All mineral interest, working interest, overriding royalties and production equipment are conveyed with Special Warranty, in through and to Buyer. Seller shall furnish to Buyer for Buyer’s inspection and approval prior to the close hereof all agreements, oil production contracts, product purchase and sale contracts, permits, licenses, options or orders in any way pertaining to the leases to be conveyed hereunder. III. REPRESENTATIONS AND WARRANTIES (A) Representations and Warranties of Seller. Seller represents and warrants to Buyer as follows:.... (6) All interests to be conveyed hereunder are free and clear of any claim, priority, lien, assessment, or secured interest and Seller shall provide Buyer at Seller’s own cost, at or before the closing hereof, assignment of such clear title.... (9) Seller warrants it has contractual agreement to purchase all Knox Trust Working Interest, Royalty Interest, Net Revenue Interest and Production Equipment as evidence by Exhibit “A”. Seller shall and hereby agrees to apply all net income accruing, commencing April 1, 1991, attributable to the properties listed as Exhibit “A” to principal and interest due under the note refered [above]. IV. CLOSING (4) Seller shall deliver to Buyer exclusive possession of the interests. (5) Seller shall deliver to Buyer all files and records relating to the interests including all agreements, oil production contracts, product purchase and sale contracts, permits, licenses, options or orders relating to the interests. The contract is short, less than seven pages, and contains no fine print. The first page sets out that “[a]ll right, title and interest of Seller as disclosed by Seller to Buyer” is to be conveyed. Because no fractions are mentioned anywhere in the agreement, “all” is given its ordinary meaning. Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996); Garner, 944 S.W.2d at 475; see Cambkidge Int’l DICTIONARY of English 33 (defining pronoun form of “all” as “the complete amount or number (of), or the whole (of)”). No other beneficiaries of the Knox trust or persons with interests in the property, other than Gwen Knox or GXG, are identified or alluded to. No clause reserves any portion of the properties being conveyed. The attached exhibits, listing and describing the properties contained in the Knox trust properties, disclose fractional interests in working interests, net revenue interests, royalty interests, and overriding royalty interests, but reveal no fractional interests in the leases, lands, or properties, nor do they mention other trust beneficiaries. The language of paragraph III, section (A)(9) suggests that GXG actually had less than a 100% interest to convey on the date of signing but encompasses a promise to after-acquire the remaining interests in the property and apply all accrued income from the properties to Buyer’s obligation in the meantime. When considered in light of this paragraph’s promise, the interpretation of the assignment as intending a present one-third conveyance, with a future conveyance anticipated, becomes more apparent. The Purchase and Sale Agreement was executed April 9,1991. On June 1,1991, and again on July 3,1991, Knox, as GXG President, executed an Assignment of Oil, Gas, and Mineral Leases, Royalties and Overriding Royalties, and Bill of Sale. The ambiguity in the language of the assignments has been discussed under point eight. The property descriptions attached to the assignments describe the properties that are on the list attached to the Purchase and Sale Agreement as Exhibit “A.” The proper construction of the deed was a matter for the jury to decide, due to the ambiguity. El Paso Land Improvement Co. v. Crawford, 292 S.W. 518, 520 (Tex. Comm’n App.1927, holding approved) (citing Kingston v. Pickins, 46 Tex. 99, 101 (1876) and Camley v. Stanfield, 10 Tex. 546, 550 (1853)); Capps v. Terry, 75 Tex. 391, 13 S.W. 52, 56 (1889); Linney v. Wood, 66 Tex. 22, 17 S.W. 244, 245 (1886); see Havard, 593 S.W.2d at 940 & 942 (approving court of appeals’ affirmation of jury’s findings on ambiguous deed); Humble Oil & Ref. Co. v. Fantham, 268 S.W.2d 239, 241 (Tex.Civ.App. — Galveston 1954, writ dism’d w.o.j.) (intention of grantor in ambiguous deed decided by jury). The jury’s finding can be set aside only if it is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Cain, 709 S.W.2d at 176; University Prep. Sch. v. Huitt, 941 S.W.2d 177, 180 (Tex.App.—Corpus Christi 1996, writ denied). The record supports the jury’s conclusion that GXG promised, then failed, to convey a three-thirds interest in the Knox trust properties. The ambiguity centers on the question of whether the deed was final, conveying only a one-third interest, or a partial conveyance pending the grantor’s purchase of the remaining interests. If there is ambiguity in the deed, the construction most favorable to the grantee is to be adopted. Rettig v. Houston West End Realty Co., 254 S.W. 765, 768 (Tex.Comm’n App.1923, judgm’t adopted); Cartwright v. Trueblood, 90 Tex. 535, 39 S.W. 930, 931 (1897); see also Bumpass v. Bond, 131 Tex. 266, 114 S.W.2d 1172, 1174 (1938) (if there is doubt about the parties’ intention, due to the language of the deed, such doubt should be resolved against the grantor); Farmers Canal Co. v. Potthast, 587 S.W.2d 805, 808 (Tex.Civ.App.—Corpus Christi 1979, writ refd n.r.e.). The jury’s resolution of the ambiguity by finding that GXG and Texacal intended to convey a three-thirds interest from GXG to Texacal is firmly supported by the terms of the contract which can be construed in a way that does not clash with the deed. We, therefore, overrule GXG’s ninth point of error. 8. Legal and Factual Sufficiency to Support Damages on Property Value By its tenth and eleventh points of error, GXG contends the jury’s finding that Texacal was damaged in the amount of $330,-000 is not supported by legally or factually sufficient evidence. When we review a “no evidence” or legal sufficiency of the evidence point, we consider only the evidence and reasonable inferences that tend to support the jury’s finding, and we disregard all evidence and inferences to the contrary. Responsive Terminal Sys. Inc. v. Boy Scouts of Am., 114, S.W.2d 666, 668 (Tex.1989). If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). When we review an “insufficient evidence” or factual sufficiency of the evidence point, we consider, weigh and examine all of the evidence which supports or undermines the jury’s finding. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We review the evidence, keeping in mind that it is the jury’s role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses’ testimony. Corpus Christi Teachers Credit Union v. Hernandez, 814 S.W.2d 195, 197 (Tex.App. — San Antonio 1991, no writ). We then set aside the verdict only when we find that the evidence standing alone is too weak to support the finding or that the finding is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). The jury was asked to determine the difference between the value of the properties GXG agreed to convey to Texacal and the value of the properties actually received by Texacal. GXG contends Texacal presented no evidence of the market value of the properties. GXG also contends the Purchase and Sale Agreement does not specify which properties the cash payment and promissory note apply to. Although the contract does not specify that the promissory note for $550,000 is to be applied to the purchase of the Knox trust properties, the note itself states that the “[f]irst payment is due and payable 30 days subsequent to Texacal receiving assignment of property and interest on Exhibit ‘A’.” [sic] There is no dispute that only the Knox trust properties are descxibed in the Exhibit “A” attached to the promissory note. It is not necessary for Texacal to prove the market value of the properties as the deficiency in the conveyance is not the result of fraud or mutual mistake. See, e.g., George v. Hesse, 100 Tex. 44, 93 S.W. 107, 107-08 (1906) (measure of damages in fraudulent conveyance is difference between contract price and reasonable market value); Cox v. Barton, 212 S.W. 652, 654 (Tex.Comm’n App. 1919, judgm’t adopted) (applying measure of damages for fraud to case of mutual mistake). The nearest parallel to the instant situation is one where a vendor contracts to convey a full interest to a buyer and a price for the full interest is agreed upon, but the vendor is capable of conveying only a fractional interest. See Atkin v. Cobb, 663 S.W.2d 48, 50 (Tex.App.—San Antonio 1983, writ dism’d w.o.j.). The buyer may elect to accept partial specific performance with abatement in the purchase price proportionate to the deficiency or defect. Id. at 51 (citing Fant v. Howell, 547 S.W.2d 261, 265 (Tex.1977)). It makes no difference whether the buyer is aware that the vendor does not have full title at the time of the agreement and may be unable to convey full title. See English v. Jones, 154 Tex. 132, 274 S.W.2d 666, 669 (1955). O’Connor, Texacal’s president, testified that the total price of the Knox trust properties was $550,000, of which he estimated the Schmaling Trust comprised 10%. GXG did not deny or refute that the Schmaling Trust comprised 10% of the total properties. Texa-eal indisputably received three-thirds of the Schmaling Trust properties, but only one-third of the remaining properties instead of the three-thirds contracted for. Texacal does not deny its obligation for the Schmal-ing Trust properties, valued at $55,000 (10% of $550,000). The disputed amount of the note is, therefore, 90% of $550,000, or $495,-000. This price was agreed upon for a three-thirds interest. Texacal received a one-third interest. The $495,000 price requires a proportionate abatement of two-thirds, or $330,-000. This is exactly the amount of damages the jury found. Furthermore, equity requires relief. The jury found that GXG represented it would convey a three-thirds interest in the Knox trust properties, but delivered nearly two-thirds less, Qualifying the conveyance with a phrase in the deed that could mean “more or less” does not prevent a material deficiency from arising. See Maddox v. Worsham, 415 S.W.2d 222, 227 (Tex.Civ.App.—Amarillo 1967, writ ref'd n.r.e.); Arrott v. Smith, 225 S.W.2d 639, 642 (Tex.Civ.App.—Austin 1949, no writ). The general rule is that when a misrepresentation, however innocent, is made as to the size of the conveyance, the right of the purchaser is to have what the vendor can convey, with an abatement of the purchase price proportionate to the shortfall between the representation and the reality. Mitchell v. Zimmerman, 4 Tex. 75, 81 (1849). Because the properties were priced by GXG as a package, rather than valued as separate lots, it is appropriate to abate the package price. We hold the evidence legally and factually sufficient to support the jury’s findings. GXG’s tenth and eleventh points of error are overruled. 9. Hearsay and Exception By its twelfth point of error, GXG complains the trial court erred by refusing to admit the deposition testimony of Robert Dougherty. GXG contends Dougherty’s testimony falls within the hearsay exception of admission of a party opponent. GXG attempted to offer into evidence the deposition testimony of Robert Dougherty which was given in a different proceeding in which neither Dougherty, Texacal, nor O’Connor was a party. The subject of Dougherty’s testimony was information he claimed was known to O’Connor prior to the closing. Texacal objected on the basis of hearsay. The trial court found it to be hearsay and refused to allow it into evidence. Rule 801(e)(2) provides, in relevant part, “[a] statement is not hearsay if the statement is offered against a party and is his own statement.” Tex.R. Civ. Evid. 801(e)(2); Reviea v. Marine Drilling Co., 800 S.W.2d 252, 257 (Tex.App.—Corpus Christi 1990, writ denied). A statement by an agent or servant concerning a matter within the scope of his agency or employment and made during the existence of the relationship may be offered as an admission by the party opponent. Tex.R. Crv. Evid. 801(e)(2)(D). GXG claims Dougherty was either an agent or an employee of Texacal. The fact of agency must be established before a declaration can be admitted. Texas Gen. Indem. v. Scott, 152 Tex. 1, 253 S.W.2d 651, 655-56 (1952); see also Buchoz v. Klein, 143 Tex. 284, 184 S.W.2d 271, 271 (1944) (agency relationship cannot be presumed; it must be proved). An agent is a person who consents to act on behalf of and subject to the control of another, the principal, who has manifested consent that the agent shall so act. Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 732 (Tex.App.—Corpus Christi 1994, writ denied). Agency may be established by circumstances, such as the relation of the parties and their conduct concerning the transaction in controversy. Cherokee Water Co. v. Forderhause, 727 S.W.2d 605, 612 (Tex.App.—Texarkana), rev’d on other grounds, 741 S.W.2d 377 (Tex.1987). Dougherty was employed as Texacal’s production superintendent and was authorized to perform a study on the oil and gas reserves of the South Texas properties. He did not serve as an officer or director of Texaeal. He delivered a report to O’Connor. Beyond that, there is no evidence he contributed any input or preparation to the Purchase and Sale Agreement. There is no indication that Dougherty acted in any capacity as the sole representative of Texaeal. See Wellington Oil Co. of Del. v. Maffi, 136 Tex. 201, 150 S.W.2d 60, 63 (1941); Mays v. First State Bank of Keller, 247 S.W. 845, 846 (Tex.Comm’n App.1928, judgm’t adopted) (principal is charged with knowledge possessed by agent in those eases in which the officer or agent is the sole representative of a corporation in the transaction in question). Dough-erty never testified to any participatory acts or input nor did he claim to have a role in the purchase and sale negotiations. GXG offered no evidence to show that the scope of Dough-erty’s duties as production superintendent authorized him to participate in negotiations,