Stalcup v. Eastham

On Motion for Rehearing

Appellee Harris G. Eastham, Jr. has filed his motion for rehearing, insisting that this court has exceeded its authority by substituting its findings for those of the trial court.

We are well aware of Rule 453, Texas Rules of Civil Procedure, and had, in our opinion, the evidence as to meaning of the contract in question been in conflict, this case would have been remanded. We have again read the Statement of Facts and, without quoting, we are still of the opinion that we were correct in our original opinion that the contract was clear, and both parties understood the meaning of the contract. Appellant’s own testimony could not support the trial court’s finding that a “case” was 24, six-ounce bottles in a separated container.

This court is not justified in reversing and rendering a case unless it appears, as a matter of law, that there was no evidence, or insufficient evidence, of probative force to sustain the findings of the trial court. 4 Tex.Jur.2d 375, sec. 832; Texas & P. Ry. Co. v. City of El Paso, 126 Tex. 86, 85 S.W.2d 245; Sovereign Camp, W. O. W. v. Derrick, Tex.Civ.App., 64 S. W.2d 982 (error ref.); Corzelius v. Oliver, 148 Tex. 76, 220 S.W.2d 632.

Appellant further complains that the pleadings do not support our findings. We think it sufficient to state that plaintiff, to the best of his ability and knowledge, sued for all of the royalty that was due him under his contract.

Believing that our original opinion was correct, we overrule the motion for rehearing.