On Motion for Rehearing
Aramco, Inc., contends that the judgment entered against James R. Lawler by the trial court, and affirmed by this Court in its original opinion, could not properly be disturbed by this Court on rehearing. The basis for this contention is the fact that in the amended motion for rehearing James R. Lawler was not individually named as an appellant. This motion names Lawler Engineering and Manufacturing Co., et al., appellants. Appellee relies on Carroll v. Sartain, 164 S.W.2d 52 (Tex.Civ.App.1942, writ ref., w. o. m.), in which the court said:
“A motion for rehearing has been filed in this Court by ‘Hulen R. Carroll, Sr., et al.’ Strictly speaking that motion could inure for the benefit only of Hulen R. Carroll, Sr., the named movant, since there were other and unnamed appellants, who, so far as the motion shows, are satisfied with the order of affirmance.”
The cited case is not in point under the facts of this case. Here there were only two appellants. Throughout the amended motion the word “appellants”, as distinguished from “appellant”, is used. In the original motion for rehearing both appellants were named. If we should hold that appellant, Jim Lawler, failed to file an amended motion for rehearing, it would follow that, as to him, the original motion was pending and both motions present the point that this Court erred in holding that the contract sued on did not show illegality on its face. This is the point of error which was sustained by this Court.
Appellee contends that we were in error in sustaining this point because it was not presented in appellants’ brief. There is merit in this contention because the appellants’ brief did not comply with the rules of briefing. As pointed out in our opinion the case was briefed on three “basic propositions”, one of which was that the contract was illegal because it violated the anti-trust laws of the State of Texas. In argument under this point appellants contended that the contract was illegal, and cited the cases relied on by this Court as authority.
In addition by Point of Error No. VI, appellants challenged three of the trial court’s findings of fact and five of the conclusions of law, and a part of one of the conclusions of law (No. 6) named reads: “The written contract was not an illegal contract and did not violate any of the Texas Antitrust Statutes * * * ” The court was not required to consider this point because it was multifarious, improperly presenting several issues. Since the question of the illegality of the contract was squarely presented in the briefs, the point properly has been considered by this Court under the authority of Rules 422 and 431, T.R.C.P.
The appellee has pointed out that the provision included in the written contract, which we have held resulted in the formation of an illegal contract, would not affect the legality of the subsequent oral contract for additional items of equipment. This point is sustained. The trial court found that Aramco, Inc., suffered actual damage as a result of the breach of warranty by appellants in connection with the additional equipment in the sum of $3,-195.00.
The motion for rehearing is granted. The judgment of the trial court is reversed in part and judgment is here rendered that Aramco, Inc., recover against Lawler Engineering and Manufacturing Co., a Texas corporation, and James R. Lawler the sum of $3,195.00 together with legal interest. Costs in the trial court are assessed against appellants. The costs of appeal are assessed against appellee.
Reversed in part and rendered.