This case was tried by the judge of the court below without a jury on evidence taken orally before him, and he found the facts from such evidence. We are required to look into the record to see if the findings of the judge are sustained by the evidence. Shepherd v. Scott's Chapel, 216 Ala. 193,112 So. 905; Jones v. Hines, 205 Ala. 145, 87 So. 531. This however is subject to the presumption of correctness when the evidence is oral before the court notwithstanding sections 9498 and 8599 of the Code. Bookmiller v. Jones, 216 Ala. 298, 113 So. 32; Shaw v. Knight, 212 Ala. 356, 102 So. 701; Raible v. City Bank Trust Co., 22 Ala. App. 68, 112 So. 543.
We are not however inclined to differ with the judge as to his findings of fact from the evidence. But the evidence further shows that appellee knew at the time the contract was made that appellant had a contract with the state for grading, and that it was the interpretation of the State Commission that such contract for grading included as an incident thereto the subgrading for which no pay was provided, and knew that the contract with the state was for thirty cents per cubic yard. It is our view now, upon further consideration, on application for rehearing, that there is ambiguity in the meaning of the contract. It is uncertain upon the face of the contract whether the words "including subgrading and finishing the shoulders," mean that such work is included in and is a part of the "grading," or whether they mean that for such subgrading appellant was to pay appellee at the rate of thirty cents per cubic yard in addition to the other grading.
The conclusion of the judge trying the case, from the facts he finds from the evidence, is not subject to the rule of presumption which obtains respecting his finding of the facts. We cannot agree with him in his conclusion, and it is our judgment that considering the facts surrounding the parties, the ambiguity should be resolved in favor of appellant. We hold therefore that under the contract as so construed, appellant is not due anything to appellee as claimed, and a judgment should be rendered accordingly.
The application for rehearing is therefore granted, and a judgment is here rendered for appellant and denying relief to appellee.
Reversed and rendered.
ANDERSON, C. J., and SAYRE, GARDNER, and BOULDIN, JJ., concur.
THOMAS and BROWN, JJ., adhere to the opinion formerly rendered, and dissent from the majority.