This case was submitted on the record, neither party having filed briefs. Since the submission a written suggestion of fundamental error has been sent the court by appellant's counsel. On submission day, appellee's counsel appeared and orally requested the court to dismiss the appeal. This request was then orally granted.

It being discretionary with this court whether it dismiss the appeal or inspect the record for fundamental error [Haynes v. Radford Grocery Co. [Tex.Com.App.] 14 S.W.2d 811], we think it due appellee, whose attorney came in person to the court to make the request for dismissal, that we make our ruling orally expressed from the bench the formal order of this court.

The appeal will accordingly be dismissed.

*Page 101