This is a case of conflict under subdivision 2 of Article 1728 of the Revised Civil Statutes of Texas, as amended, to which the second paragraph of Rule 483, Texas Rules of Civil Procedure, is applicable. We are in agreement with the decision of the Court of Civil Appeals, 438 S.W.2d 372, and the application for writ of error is refused, no reversible error. The conflicting holding in Newton, Inc. v. Broaddus, 372 S.W.2d 950 (Tex.Civ.App. 1963, no writ), is disapproved.