The trial court could well have considered the telegram as being in the nature of an ultimatum rather than an overture for peaceful settlement. See Ginsberg v. Selbest Dress, 238 S.W.2d 621, 623 (Tex.Civ.App. — Dallas 1951, writ ref'd n.r.e.). We find no abuse of the trial court's discretion.
In order to invoke the rule against admitting offers of compromise into evidence, there must be a dispute as to the validity or amount of the claim in controversy. Smith v. Smith, 460 S.W.2d 204, 205-06 (Tex.Civ.App.-Dallas 1970, no writ); Ginsberg v. Selbest Dress, Inc., 238 S.W.2d 621, 623 (Tex.Civ.App. — Dallas 1951, writ ref'd n.r.e.); R. Ray, 1A Texas Practice, § 1142, at 289 (3d ed. 1980). Appellant's counsel made no attempt to show the existence of such a dispute by examining the witness in the absence of the jury, as he could have done notwithstanding the court's instruction.
It is within the discretion of the trial court to determine from the surrounding facts and circumstances whether or not the offer was an independent admission or an offer in compromise. Ditto v. Piper, 244 S.W.2d 547 (Tex.Civ.App., Fort Worth, 1951, writ ref., n.r.e.); Ginsberg v. Selbest Dress, Inc., 238 S.W.2d 621 (Tex.Civ.App., Dallas, 1951, writ ref., n.r.e.); McCormick and Ray, Texas Law of Evidence, 2d Ed. sec. 1142. By admitting the check in evidence, the trial court impliedly ruled that the check constituted an independent admission. Defendant's second cross point contending the court erred in admitting the check in evidence is overruled.
The two named questions being controlling of controverted issues of fact for the trier of the facts, the summary judgment must be set aside and the cause remanded to the District Court for a new trial. Ginsberg v. Selbest Dress, Inc., Tex.Civ.App., 238 S.W.2d 621 (n. r. e.). Reversed and remanded.
See Stone v. City of Wylie, Tex.Com.App., 34 S.W.2d 842, 845; Krueger v. Bankers Lloyds, Tex.Civ.App., 45 S.W.2d 363; Wade v. First Nat. Bank, Tex.Civ.App., 263 S.W. 654, 656, writ dismissed.' Also see Autry v. Reasor, supra; Funderburk v. Dofflemeyer, Tex.Civ.App., 234 S.W.2d 889, error ref.; Kamp v. Hargris Building Co., Tex.Civ.App., 238 S.W.2d 277, ref., n. r. e.; Ginsberg v. Selbest Dress, Inc., Tex.Civ.App., 238 S.W.2d 621, ref., n. r. e. (Italics supplied.) The case of Johnson v. Russell, Tex.Civ.App., 220 S.W. 352, also holds that where a party states that a tract of land is his homestead it only amounts to a conclusion, and the burden is not met unless there is other evidence showing actual use for homestead purposes.