Both parties have filed motions for rehearing, which are hereby overruled.
Counsel for defendant in error misunderstand the opinion heretofore rendered in this case in the following particulars: (1) It is insisted that this court reviewed the decision of the Court of Civil Appeals on a question of fact; and (2) that we have expressed an opinion as to the weight which should be given to the evidence in this case. We expressly stated in the opinion that we could not review the judgment of the Court of Civil Appeals on the question of fact and for that reason we now overrule the motion of the plaintiffs in error for a rehearing in this case. This court reversed the judgment of the Court of Civil Appeals in so far as it rendered judgment for the defendants in error, but did not disturb the judgment of that court by which the judgment of the District Court was reversed, because that rested upon the question of fact. The ground upon which we reversed the judgment of the Court of Civil Appeals is, the Court of Civil Appeals had no authority to enter judgment against the plaintiffs in error because the evidence was not of that conclusive nature which would have justified the District Court in directing a verdict for the defendants in error. In discussing the evidence in order to determine that question we mention the fact that the testimony of Smith in the terms stated was sufficient, if credited by the jury, to establish a trust, but it is nowhere stated, nor do we believe that it can be so understood from the language of the opinion, that the weight to be given by the jury to the evidence is in any manner touched upon in our opinion. That is a question for the jury alone, upon which we express no opinion.
Motions overruled. *Page 427