(dissenting).
The dissenting opinion delivered in this cause on February 10, 1960, is withdrawn, and the following is substituted therefor:
This dissent is written because the writer is not in agreement with the holding of the Court that no evidence was introduced supporting the trial court’s finding and judgment that Vilbig was indebted to Leavell in the sum of $2,076.69 for the expense incurred by Leavell in having the Kan-Tex Company repair the subsidence in the paving laid by Vilbig.
The Court of Civil Appeals substituted its findings for the findings of the trial *216court, and this Court has erroneously approved such action.
Leavell’s pleadings relating to this question are to be found under paragraph XII of its amended answer. The pleadings refer to the hump or bump and the subsidence, and reads as follows:
“That by reason of defective materials and/or workmanship, plaintiff left a hump or bump on the road it paved near the entrance road to the chemical building, and on or about November 21, 1956, by letter bearing said date, defendant requested plaintiff to correct same, which plaintiff refused to do, and defendant had same corrected at an expense of $381.69. That by reason of defective materials and/or workmanship, the road built up and paved by plaintiff under said contracts Nos. 169-B and 169-F sank due to settlement of the railroad spur fill and road fill, both of which were placed by plaintiff near Station 11+00 on the railroad spur, and on or about May 28, 1957, defendant in writing requested plaintiff to amend and make good such defect, which plaintiff refused to do, and defendant had same done and it was completed by Kan-Tex Company at the expense of plaintiff on or about August 27, 1957, at a reasonable and necessary cost of $2,076.69. Sec. 20 of said contracts provides that the subcontractor shall promptly amend and make good any defective materials and/or workmanship to the entire approval and acceptance of the owner and/or architect or their authorized representatives and should the subcontractor refuse or neglect to proceed at once with correction of rejected or defective materials and/or workmanship after receiving notice to do so, it was agreed that the contractor should have the right and power to have the defects remedied or changes made at the expense of the subcontractor, and the subcontractor agreed to pay contractor on demand any and all loss and/or expense paid or incurred by the contractor in remedying such defects and/or making such changes, together with interest thereon at the rate of 6% per annum until paid. It further provided in Sec. 21 of said contracts that the obligation of the subcontractor to perform and complete all work covered by said subcontracts to the satisfaction of the contractor and the owner is absolute and without exception. Sec. 35 of said contract provides that in the event of a breach of this contract or any of its provisions by the subcontractor resulting in litigation by the contractor to enforce its rights, the subcontractor agrees to pay the contractor a reasonable fee for its attorney’s services, which fee may be recovered in the same suit as part of the contractor’s cause of action. By reason of such provisions, plaintiff has become indebted to defendant in the sum of $381.69, the further sum of $2,076.69, together with interest on said sums at the rate of 6% per annum from the date same became due, and reasonable attorney’s fees for the services of defendant’s attorneys herein, which sum should be deducted from the retainages heretofore tendered to plaintiff.”
Vilbig in answer to Leavell’s pleadings in regard to the subsidence pleaded in paragraph VI of its first supplemental petition:
“Plaintiff denies that the road built up and paved by plaintiff near statical 11+00 on the railroad spur sank due to settlement of the railroad spur fill and the road fill as prepared by plaintiff, and says that after the plaintiff had completed the fill, defendant by its own employees cut the fill with a ditch across it and laid the lines the defendant desired and then back-filled the ditch without compacting it to the density required by the specifications, and thereupon ordered plaintiff to pave across it, and the settlement which occurred after the spring rains occurred in the area where the plaintiff had not *217done the construction work but where it had been done by the defendant, and was due to the failure of the defendant’s employees to properly compact the back-fill. At all times plaintiff was required to conform to the specifications before authorization was given to it to pave, and there have been no defects where plaintiff was in charge of the work.”
The trial court’s judgment as to the subsidence item of $2,076.69, which was allowed Leavell as a credit reads as follows: “Plaintiff [Vilbig] is indebted to defendant [Leavell] in * * * in the sum of $2,-076.69 for the expense incurred by defendant in having Kan-Tex Company repair the subsidence in the paving laid by plaintiff * *
It is uncontroverted that the reasonable cost of correcting the sag or subsidence was $2,076.69, and that it cost Leavell that amount of money to get the work done after respondent failed or refused to make good its guarantee or obligation. The contracts involved provided that petitioner could have the work done at the expense of the respondent. The evidence supporting the trial court’s findings disproves respondent’s only defense. That defense was that some independent agency was responsible for the subsidence. The specifications prepared under the terms of the contracts provided that Vilbig had to guarantee the paving for one year. Mr. Charles Vilbig, President of Vilbig Company, testified that he was familiar with the terms of the contract and that Vilbig was to complete all work and to promptly amend and make good any defective material and workmanship all to the entire approval and acceptance of the owner. Vilbig’s only chance of escape of liability was to plead and establish to the satisfaction of the trial court in accordance with rules of evidence and to establish by the preponderance of the evidence that the subsidence was not due to defective material furnished or poor workmanship on the part of Vilbig. The evidence shows that Vilbig is liable under the express terms of Sections 2, 20, and 21 of Subcontracts 169-F and 169-B. See Footnote 1 for said Sections. Vilbig’s testimony that the subsidence was caused by the cutting of a ditch across the embankment for the laying of a pipe line was rejected by the trial court. The trial court accepted Leavell’s evidence. One of the witnesses for Leavell, a Mr. J. C. Bandy testified that he was familiar with the situation where petitioner had sued for $2,-076.69 for repairing the place where the subsidence occurred. Petitioner’s brief reflects and I herewith adopt the statement that Mr. Bandy testified that the repair was made at “the extreme northwest corner of the chemical building, between the chemical building and the railroad track and under the railroad track; that there were not any pipelines or ditches that crossed the road at that place, and as to what occurred there that made the repair necessary, as to what defect showed up, it was a settlement in a railroad fill placed by Vilbig and that *218caused the pavement to settle and crack, disintegrate, and Forrest & Cotten requested that it be corrected, but petitioner’s attitude would he that it would want to fix it anyhow without demand as they wanted to do a good job; that by letter to Mr. Vilbig and Mr. Andress, petitioner requested Vil-big to do it but Vilbig did not do it but had someone else to do it, to correct that defect, he hired Kan-Tex Company which also corrected some other defects which petitioner considered its own and petitioner got a separate statement on the part where the fill settled and the pavement cracked as he asked Kan-Tex to bill them for each place separately so they would know what was their share and what was Vilbig’s share, and he got a separate bill from Kan-Tex for that, and defendant’s Exhibit No. 23 is the statement which includes only the part where the fill sank up by the railroad embankment, and Exhibit D-23 was admitted in evidence, and as to whether or not Kan-Tex Company did the work that is set out in said Exhibit and furnished the equipment and material and labor that are set out on said Exhibit, he was out there at the time this work was going on and he invited Mr. Andress or Mr. Vilbig or someone to come out and verify the work and verify the quantities of material used, but he heard nothing from them although he told them when the work was going to be done and who was going to do it and how it was going to be done; that these charges for that kind of work and for the material and the use of their equipment and labor, and for moving in and out and for the overhead charge and profit, and Kan-Tex actually charged petitioner for the work Kan-Tex did in repairing that fill that settled and sank the sum of $2076.69.”
Mr. Bandy, on cross-examination about the area where there was a subsidence that was due to the settlement of the railroad fill, testified that “the paving went down and cracked and disintegrated; that the area where this subsidence occurred was not in the area of the excavation for the building; that respondent did the railroad back-fill, the railroad embankment and the railroad embankment was put there in place under contract 169-B; that petitioner did not have any written notification of any kind from Forrest & Cotten with reference to the subsidence and didn’t need any, but Forrest & Cotten called him two or three times on long distance phone, wanting to know when petitioner would get out there and do that; that Kan-Tex by way of corrective work drilled holes through the surface of the pavement and put a soil cement type of material, pumped it under the pavement through these holes under pressure, and raised the pavement back up to the grade.”
In accordance with the terms of the contracts, supra, the owner’s architect and engineer required that the sag or subsidence be corrected. The defects appeared within the one-year period of Vilbig’s guarantee. Leavell’s testimony that no ditch was cut across the fill or embankment and that the failure of the fill or embankment to be completed to the required density was due to defective workmanship on the part of Vilbig was accepted by the trial court. The evidence shows that the settlement or subsidence caused the pavement to settle and crack. It was further shown that Vilbig so compacted the fill as to permit more than the maximum amount of water to infiltrate into it (the fill) than that required to get maximum density and therefore the fill settled and the pavement cracked. The trial court having resolved tire issue made by the evidence, such findings are binding on the Court of Civil Appeals. That court had no right to substitute its own findings for the findings of the trial court.
The elementary principles of law that must be applied here in determining whether the findings of the trial court, sitting without a jury, should be sustained are clearly set forth in the case of Wisdom v. Widener, Tex.Civ.App., 309 S.W.2d 496, reversed on other grounds, Wisdom v. Widener, Tex., 316 S.W.2d 148. The rule is no different than the rule applied in a jury case. See Benoit v. Wilson, 150 Tex. *219273, 239 S.W.2d 792. In either case, the trier of the facts has the right to reconcile conflicting testimony, if possible, or to accept as true or reject all, any part or none of the testimony of any witness. The trier of the facts may accept the theory presented by either party and reject the theory presented by the adverse party if he thinks the evidence justifies such action. The trial court in the present case incorporated in its judgment a finding on this question in favor of Leavell. To test the sufficiency of the evidence to determine if it will support such findings and judgment, we must give credence only to the evidence and circumstances favorable to the findings and judgment and disregard all evidence to the contrary, indulging every legitimate conclusion which tends to uphold such findings and judgment. This proposition needs no authority, but see such cases as Benoit v. Wilson, supra; Wisdom v. Widener, supra; Wininger v. Ft. Worth & D. C. Ry. Co., 105 Tex. 56, 143 S.W. 1150; Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97; Hill v. Foster, 143 Tex. 482, 186 S.W.2d 343.
The case was fully developed, and the issues were clearly drawn. Siqce the controlling fact issues were resolved against Vilbig in the trial court, the judgment of the Court of Civil Appeals should be reversed and that of the trial court affirmed.
. “Section 2. * * * In addition, the work covered * * * shall be satisfactory to and meet the approval of the engineer having jurisdiction and the general contractor. * ⅜ ⅜.”
“Sec. 20. The subcontractor shall promptly amend and make good any defective materials and/or workmanship to the entire approval and acceptance of the owner and/or architect or their authorized representatives. Should the subcontractor refuse or neglect to proceed at once with correction of the rejected or defective materials and/or workmanship after receiving notice to do so, it is agreed that the contractor shall have the right and power to have the defects remedied and changes made at the expense of the subcontractor, and the subcontractor agrees to pay to the contractor on demand any and all loss and/or expense paid or incurred by the contractor in remedying such defects and/or making such changes, together with interest thereon at the rate of 6% per an-num until paid.
“Sec. 21. The obligation of the subcontractor to perform and complete all work covered by this subcontract to the satisfaction of the contractor and owner is absolute and without exception;