On Motion for Rehearing.
In the original opinion rendered herein, we construed the recitations contained in the judgment of the trial court as constituting a waiver of a jury determination of such fact issues as might be in the case. We held that the case should be considered as a trial to the court without a jury.
The appellant upon rehearing contends that our construction of the judgment is incorrect and that the basis thereof was an instructed verdict to the jury. The trial court did go through the form of instructing a verdict for the appellee, but thé recitation that the parties agreed “that the court should withdraw the case from the jury and determine all issues in the case” clearly shows a waiver of the determination of the fact issues, if any, by the jury, and the examination of the record prior to the rendition of the original opinion was made upon the basis that a jury had been waived.
Appellee has now moved for leave to file a supplemental transcript containing a “corrected judgment” entered nunc pro tunc by the trial court on May 30, 1940. In the corrected judgment the recitation “that the court should withdraw the case from the jury and determine all issues in the case” is eliminated and the following recitations appear: * * but at the conclusion of the evidence on January 5, 1939, the plaintiff moved for an instructed verdict and the defendants each moved the Court for an instructed verdict, and the Court stated from the bench that if any party wished any issue of fact submitted to the jury, he would consider submission of such issue because he didn’t want either side to afterwards complain that there were issues of fact which should have been submitted to the jury, and it was agreed between all the parties that there were no issues which should be properly submitted to the jury and that the judgment should be determined by the Court on questions of law on the undisputed facts; and the Court having heard the pleadings, evidence and argument of counsel, is of the opinion and finds that the law on the undisputed facts is with the defendants and against the plaintiff on plaintiff’s suit, and that plaintiff should take nothing by his said suit.”
The matters contained in the supplemental transcript do not relate to the jurisdiction of this Court, and although we have some doubt as to our authority to *667consider the same, under Rule 22 for Courts of Civil Appeals, 142 S.W. xii, we have decided to permit its filing in order to obviate, if possible, any dispute between the parties as to what actually occurred in the trial court.
The “corrected judgment,” shown in the supplemental transcript, presents some difficulties of interpretation. The evidentiary facts in this case are undisputed, but a fact or jury issue may arise from undisputed facts. Commercial Standard Ins. Co. v. Davis, Tex.Sup., 137 S.W.2d 1. We are of the opinion that when parties agree that a court shall render judgment upon admittedly undisputed facts, they, in effect, agree that the court shall determine all fact issues arising from those undisputed facts: The legal effect of the corrected judgment in this particular and under the facts of this case is no different from that of the original judgment.
In deference to appellees’ earnest contentions relating to the proper construction of the corrected judgment, as well as the original judgment, we have again examined the statement of facts bearing in mind the rule that in cases where an instructed verdict is given, all issuable facts are to be resolved against the appellee rather than in support of the judgment (Brand v. Fernandez, Tex.Civ.App., 91 S.W.2d 932), and have come to the conclusion that if we be mistaken in our construction of the original or corrected draft of the judgment involved, the facts as shown by the record present a case in which the giving of a peremptory instruction was correct. We are of the opinion that the construction given the letter in question in our original disposition of the case is supported by the letter itself, which discloses the intention of the parties as a matter of law. We are further of the opinion that under the circumstances of this case it conclusively appears that the appellee did rely upon the letter and the purported grant of the easement therein. The grant of the easement was a prerequisite for the loan which was actually made after the letter had been received by the bank.
All other matters raised in appellant’s motion for rehearing are sufficiently discussed in our original opinion. Appellant’s motion for leave to file the supplemental transcript is granted.
The motion for rehearing is overruled.