ON MOTION FOR REHEARING. Relator says we failed to understand his argument assigning error on respondents' reversal outright of the judgment of the trial court, and asks us to reread pages 6 to 10 of his reply brief. Relator's position is that since the case was an action at law tried to the court without a jury, and with no declarations of law asked or given, the general finding of the trial court was incontrovertible on appeal and therefore binding on respondentsif there was any substantial evidence to support it, as is held in Jordan v. Davis, *Page 76 172 Mo. 599, 608, 72 S.W. 686, 688, and In re Langford's Estate,272 Mo. 1, 18, 197 S.W. 147, 152, reviewed in our opinion above.
In respondent's opinion, 82 S.W.2d 616, it was held by SHAIN, P.J., that there was no substantial evidence showing the trust fund came into the hands of Davis, the trustee. BLAND, J., held it was apparent that Davis, as trustee, turned over to the beneficiaries all the money he received in that capacity, thereby impliedly conceding he did receive at least some part of the trust fund. These holdings are inconsistent with each other, and both are inconsistent with the trial court's finding for the plaintiff successor trustee. Relator contends this shows there was some substantial evidence that Davis did receive a part of the trust fund and stood accountable therefor. And on that assumption he says in his motion for new trial: "If the respondents can say as a matter of law that the trustee accounted for all money which came into his hands, then they can say as a matter of law that any fact in issue was proven or not proven, as they may determine."
But we cannot assume there was conflicting evidence on that question. Respondents' opinion on motion for rehearing by BLAND, J., was their last utterance on the question and all of the respondents concurred therein. They held it was apparent that Davis as trustee accounted for all the trust money he received. We are bound by that statement, and indulging the presumption of right action, we must assume there was no substantial evidence to the contrary, notwithstanding the earlier opinion of SHAIN, J., may seem to point to the contrary. We cannot search the record for the facts, and see no reason for altering our opinion heretofore delivered. Our writ of certiorari is ordered quashed. *Page 77