I concur in the opinion of the Court in so far as it in part reverses the judgment and remands the cause; but I am forced to the conclusion that issues were -raised by the evidence as to whether appellants are entitled to impress a constructive trust on the properties of appellee Bolin, and therefore respectfully dissent from the affirmance of the summary judgment in favor of Bolin on that phase of the case.
Although there may not be material dis-.. pute as to any transaction, and, in that sense, any. fact, when an inference, is to- be drawn therefrom it is itself a fact; and if witnesses agree, reasonable minds may differ as to what ultimate issue, the facts establish. Inferences., .to be . drawn from circumstances are not'testified to by witnesses, and therefore- cannot, be said to have been established hy the., evidence, though uncontradicted, unless the facts will admit of but, one conclusion... .
A jury might conclude that Bolin violated a trust in acquiring for 'his own account the gist and Crownover farmouts and the new Howard leases. It might conclude that in acquiring them he was motivated by information that came to him while in confidential relationship to appellants, and was partnership property.
When asked by Dr. Smith to obtain farm-outs on the Gist and Crownover leases, Bolin said he was not interested, and in his brief argues that it could not then be done; but on May 6, 1950, he was interested and did it. In January or February, 1950, when asked by Dr. Nail to secure new leases oh the Howard land, Bolin replied that “We could no more get that than we could get wings and’ fly to Heaven this afternoon.” Neither Dr. Nail’nor Mr.- Bolin has taken wings and flown to Heaven, but on Juhe 20, 1950, Bolin got new Howard leases.
It is possible that after Bolin drilled two wells on the Howard leases he knew more about the subsurface structure than he did theretofore. Dr. Smith, who in 1938 had been interested in some drilling ventures on the Howard land, and who was familiar with John Kay’s geological data on the area, told Bolin all he knew about the geological picture, and gave him the benefit of Kay’s data. Oliver, Standard’s division exploration superintendent, testified that on March 9 or 10, 1950, he discussed with Bo-lin a proposed farmout of the Gist, the Crownover, and other leases in the vicinity of the Howard land; and that on the s.ame occasion he showed Bolin Standard’s geology in the area, and that in the same conference Standard agreed to give 100 acres per well instead of 40 acres as originally proposed. Although Bolin may be the only person who knows what information motivated him in acquiring the Gist and Crownover farmouts and the new Howard leases, his 'testimony on the point is, not conclusive, but only tenders an issue- of fact.