On Rehearing.
In the light of the motions for rehearing by both the defendant and plaintiff, the various contentions presented by the appeal have been re-examined. We are still of the opinion that we correctly sustained the propositions requiring a reversal of the judgment of the trial court; but a further study of - the record convinces us that the judgment of the trial court should not only be reversed but that the judgment should be here rendered for the defendant rather than a remand of the cause for another trial. Such order will be substituted for the closing sentence and order of the original opinion.
We are moved to render the judgment for the following reasons: (1) This case has been fully developed and the plaintiff himself makes no contentions t'o the contrary. (2) The case was not tried upon any erroneous theory, sometimes spoken of as “excusable error”, under some state of the authorities apparently accepted by the court of last resort. (3) In the instant case no ruling of the trial court on exceptions to pleadings, admission of testimony, etc., misled the plaintiff in matters of pleading or caused him to forego the offering of any available material testimony essential to a full development of the cause in the trial below. In other words, no such considerations render it necessary that the cause be remanded, that the pleadings be amended, or for the ascertainment of any matter of fact.
Such being the record a rendition of the judgment is believed to be required in obedience to such authorities as Williams v. Safety Cas. Co., 129 Tex. 184, 102 S.W.2d 178; Fowler v. Hardee, Tex.Civ.App., 16 S.W.2d 154; 3 Tex.Jur. p. 1215, sec. 852; p. 1218, sec. 853.
For these and the reasons assigned in the original opinion the judgment of the trial court is reversed and the judgment now rendered in favor of the defendant. The judgment heretofore entered June 21, 1940, will be s.et aside and this one entered therefor. Accordingly the judgment is reversed and rendered in favor of appellant.