On Appellant’s Motion For Rehearing.
TIREY, Justice.Point 1 in appellant’s motion for rehearing is: “The Court of Civil Appeals erred in failing to hold that the furnishing of tank cars by the buyer-appellee was a condition precedent to the duty of the seller-appellant to deliver oil free on board into such cars and, the buyer having alleged but having offered no evidence of performance of such condition, the seller’s promise to deliver never was activated into a duty and, 'a fortiori, never was breached.”
Our view is that Point 1 assumes a factual situation contra to' the undisputed evidence before the court and the legal inferences that may be drawn therefrom and that by reason thereof the rule of law presented in Point 1 is not applicable here for reasons hereinafter briefly noted. It is without dispute that appellant undertook to comply with the contract for the month of July, 1931, and that under the terms of the contract he was obligated to ship to ap-pellee the sum of 8,000 barrels of oil for such month, but shipped only 3,566.40' barrels, the last shipment having been made on the 28th day of July. Appellee’s letter of July 31st addressed to appellant has been quoted in our original opinion. This letter malees reference to an oral demand made by appellee of appellant under date of July 27, 1931 and this letter requested appellee to ship the twenty cars of crude for August at the rate of two- cars per day for the first ten days of August, 1931, and further stated-that “failure to furnish said 20 cars as per contract will force the shut down of my refinery * * Appellant made no reply to appellee’s letter of July 31st and made no complaint to appellee that he had’ failed to furnish him tank cars in which to ship the oil, nor did he tender any testimony to the effect that he was in position to comply with his contract for the month of July and would have done so had not appellee failed to furnish the tank cars. Moreover, the trial court had before it the undisputed *283testimony to the effect that months of July, August and September, while appellant was furnishing appellee with 3,566.40 barrels of oil instead of 8,000 barrels per month as contracted for, appellant was furnishing 13,665.50 barrels of oil to the Sun Pipe Line Company for the sum of $5,205.57, or about 16 cents a barrel more than appellant had contracted to sell it for to appellee; that during Ae months of October, November and December, 1931, the appellant sold 12,616.41 barrels of oil to Shell Petroleum Company for a sum total of $9,786.12, which was $8,019.83 more than appellant had contracted to sell it for to ap-pellee. Under Ae foregoing undisputed and unexplained situation, we think that it was appellant’s duty to tender testimony which would legally excuse his non-performance of the contract and absent such proof the trial court was justified in drawing Ae inference and making .the implied finding Aat appellant’s failure to deliver the oil to ap-pellee was due to Ae fact Aat appellant could sell it for a greater price to other purchasers and not to appellee’s failure to furnish Ae tank cars. We think this implied finding is established by direct and circumstantial facts that are reasonably satisfactory and of a convincing character. See Stewart v. Miller, Tex.Civ.App., 271 S.W. 311, point 13, at page 316 (writ ref), and 17 Tex.Jur. sec. 409, p. 907, sec. 410, p. 909; also 17 Tex.Jur. sec. 55, 62 inch, pp. 244-257. See also San Jacinto Oil Co. v. Texas Co., 47 Tex.Civ.App. 477, 105 S.W. 1163; Diamond State Iron Co. v. San Antonio & A. P. R. Co., 11 Tex.Civ.App. 587, 33 S.W. 987; Von Harten & Clark, Inc., v. Nevels, Tex.Civ.App., 234 S.W. 676; Burleson & Baker v. Sugarland Industries, Tex.Civ.App., 240 S.W. 669; 37 Tex.Jur. 362, 365; Culp v. Sandoval, 22 N.M. 71, 159 P. 956, L.R.A.1917A, 1157; 46 Amer. Jur. 355; Security Banking & Investment Co. v. Flanagan, Tex.Civ.App., 241 S.W. 702, 703, point 8, at page 707. during Ae
Appellant in his written and- oral ■argument stated in effect that the testimony of the wiAess Shelby to Ae effect Aat appellant Vise had told him that as soon as he got a connection with the Sun Oil Company, that he would breach this contract (we have previously set out this testimony in the orig- ■ inal opinion) is of no probative value because such information was not .communicated to Foster. We are not in accord with this view. Since Foster’s letter of July 31st complained to- Vise of his failure to ship him the oil as provided for in the contract for the month of July and further confirmed the oral order of July 27th for the twenty cars of crude to be shipped to him at the rate of two cars per day for the first ten days of August, 1931, Foster’s rights were not prejudiced because- he did not know of the secret intentions of Vise at the time Ae contract was made or at Ae time it was breached, but Foster's rights are predicated upon.the fact that Vise did breach his contract, and under the record here made we think that Ae conversation that Vise had with Shelby was admissible and was a circumstance for the court to take into consideration in determining wheAer or not Foster had breached his contract by failure to furnish the tank cars. Surely Vise could not sit by in the trial with knowledge of the evidence adduced and make no explanation of his failure to ship Ae oil. See 17 Tex, Jur. -sec. 409, p. 907, sec. 410, p. 909; Stewart v. Miller, supra. . Appellee pleaded that he furnished the tank cars, that he made both oral and written demands on appellant for Ae oil and that he was forced to shut down his refinery because appellant did not ship the oil that he bound himself to ship', and that appellee tried to buy oil elsewhere in order to keep his refinery running. Moreover, appellant failed to deny specifically in his pleadings that appellee furnished the cars. He also failed to- offer. any proof that appellee failed to furnish cars, .and the proof being uncontradicted that appellant did not intend to carry out his contract at the time he entered into it and Aat he was going to sell the oil to Ae Sun Pipe Line Company and that he did so when the opportunity presented itself .(and received a greater price for his oil), it is our view that the foregoing undisputed factual situation distinguishes the case at bar from Ae case presented by appellant in his brief and in his oral argument.
*284We have carefully considered each of the grounds in appellant’s motion for rehearing and we believe they are without merit and, so- believing, appellant’s motion for rehearing is overruled.
LESTER, C. J., took no part in the consideration and disposition of this motion.