(dissenting).
As I view the matter, the majority opinion is not supported either by the record in this case or the law applicable thereto. Consequently, I must respectfully dissent.
The majority opinion seems to challenge the sufficiency of the evidence and charge in effect that the same does not support the trial court’s judgment. Throughout the majority opinion the credibility of certain witnesses are either directly or indirectly challenged.
It is elementary that the trier of facts, and not this Court, has the exclusive function of determining the credibility of the witnesses and the weight to be given their *434testimony in a" case such as this. Glenn v. Glenn, Tex.Civ.App., 183 S.W.2d 231; Shock v. Mrs. Ragsdale’s Foods Co., Tex. Civ.App., 228 S.W.2d 353. More than once, the majority opinion seems to call into question the value, or lack of value, of the testimony of appellees, Aubrey Carlton and Robert Carlton, attempts to show conflicts in each witnesses’ testimony, seems to doubt their good faith, attempts to weigh their testimony given and indirectly, if not directly, charges in effect that the evidence was insufficient to support the trial court’s judgment. As to the question of insufficiency of the evidence, it has been held that where there is no assignment of error in the Court of Civil Appeals on grounds' of insufficiency of evidence to sustain .the judgment, the Court of Civil Appeals has no jurisdiction to pass upon such a question. Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164. In this case, there is no assignment of error by appellant on the grounds of the insufficiency of the evidence. In his three points of error, appellant contends in effect that he is entitled to all ■ of the money in question because the contract has no consideration and that in any event the contract was a mere promise of appellant to make a gift of money to ap-pellees. At any rate, in examining the evidence to determine its sufficiency, this Court must give credence only to the evidence and circumstances favorable to the findings of the trial court, indulging every legitimate conclusion which tends to support such findings, and disregard all evidence and circumstances to the contrary. Landwer v. Fuller, Tex.Civ.App., 187 S.W.2d 670; Boston Ins. Co. v. Rainwater, Tex.Civ.App., 197 S.W.2d 118, and other authorities cited by these cases. If no findings are filed (and all the findings revealed by this record are found in the trial court’s judgment) it is the duty of this Court to affirm the trial court’s judgment if such can be done on any reasonable theory supported by the evidence and authorized by law. Strickland v. Humble Oil & Ref. Co., Tex.Civ.App., 181 S.W.2d 901, and other authorities there cited. When a court of competent jurisdiction has rendered a final judgment in a civil cause, it must be presumed that the ends of justice have been met through a fair and impartial trial unless a prejudicial error, to the contrary has been affirmatively shown. Smothers v. Gawlik, Tex.Civ.App., 214 S.W.2d 894, Bennett v. Jackson, Tex.Civ.App., 172 S.W.2d 395, Erback v. Donald, Tex.Civ.App., 170 S.W.2d 289. In my opinión, appellant has failed in the case at bar to affirmatively show any such prejudicial error. In fact, the contrary is shown by the record, as I view the matter.
The majority opinion seems to raise some question' about whose attorney drew the contract, and seems to probably imply that appellant was deceived into signing the. contract. The record does not support such apparent implication; it reflects the contrary and especially does appellant’s . own testimony reflect the contrary. According to, the record, no attorney was present when the contract was executed and according to the record the attorney who drew the contract did so under .instructions after one of the appellees, according to his testimony, had discussed settlement with appellant, who mentioned the matter soon after the funeral of deceased, and appel-, lant then suggested a four-way division of-the money in question. At any rate, after the parties voluntarily executed the contract in the absence, of fraud, mistake, misrepresentation or concealment of facts, as . was done in this instance according to the record, the contract became theirs and they were bound by its terms regardless of who drew the contract.
The majority opinion likewise asserts that there was no evidence to support a consideration shown in the contract or that there existed a bona fide dispute between the parties. We think the contrary is shown and supported by numerous authorities hereinafter cited.
As I view the matter, this is a suit to determine legal ownership of certain monies on deposit in the Friona State Bank in the name of Johnnie Carlton Stewart, deceased. Appellant, Ralph L. Stewart, the estranged husband of deceased at the time *435of her death on April 30, 1953, is now claiming all the moneyt while appellees, Aubrey Carlton, Wilburn Carlton and Robert Carlton, brothers of the deceased, are claiming a four-way division of the money by reason of the execution of a compromise contract. The bank answered by tendering the money to the court to be paid to the rightful owner or owners as the case may be. The case was tried to the court without a jury. The trial court found in effect, that the claims were previously in dispute between the parties who were in doubt both as to the facts and the law governing their respective rights, as a result of which the parties had verbally agreed and then entered into a valid written contract to divide the said monies equally among the four interested parties previously herein named áfter the payment of just debts, by the terms of which contract they were ¿11 bound. It therefore rendered judgment dividing the remainder of the said deposit in the said bank, which sum it found, after the payment of certain debts by agreement of the parties, to be $1,846.24, and appellant and. the three-named appellees were each awarded the sum of $461.56.
A brief preliminary statement of facts will help determine the issues raised. Appellant and the deceased had been married approximately nine years before their separation on April 1, 1953, before her death April 30, 1953. Prior to the separation, Mrs. Johnnie' Carlton Stewart had'been confined to an institution for mental illness. No children had been born to the marriage and this was the only marriage of either party. At the time of the separation, appellant had a personal property settlement with his wife and paid her in checks the total sum of $2,833.25, which sum she deposited in the Friona State Bank in her. name. Before her death she checked out a small amount, some of the balance was used after her death to pay her funeral expenses as well as a small drug bill and a small doctor bill by agreement of the parties. The remaining sum is here in controversy. After the separation, Mrs. Johnnie Carlton Stewart lived with her brother, Aubrey Carlton and his family, until she took her own life on April 30, 1953, and was buried the following day. Aubrey Carlton thereafter filed for an administration upon her estate and such was granted but thereafter dismissed by agreement of the parties. The deceased had both burial insurance and life insurance with appellant named as the beneficiary. The amount is not shown but appellant testified that he collected and kept the proceeds of both, and that Aubrey Carlton- himself paid the burial expenses, drug bill and.doctor bill in the total sum of $952 when they were due and waited from May until- August, 1953, to be reimbursed therefor. :
The body of the contract in question has been copied in the majority opinion showing acknowledgments but it does not there show that each of the four parties thereto signed and separately acknowledged they signed the same “for the purposes and consideration therein expressed.” Appellees and the bank both pleaded the terms of the contract. Appellant proved the execution of the contract but appellees introduced it in evidence. The entire contract, together with the four acknowledgments thereto, is before us.
In my opinion, the controlling question to be here determined is whether or not the trial court was justified in finding and concluding that the contract in question was valid and binding upon appellant and in-basing its judgment primarily thereon. After the contract had been executed, appellant sought to revoke its terms primarily on the grounds that it was without any consideration but appellees would not agree to his attempted revocation.
Appellant testified in effect that he was 42 years of age, had a high school education and was an experienced railroad teleg-raphér or operator; that after he read and understood the contract, he signed it (S.F. 84); that he read the contract before signing it and signed it in good faith (S.F.82) ; that he was not afraid of anybody -and nobody forced him to sign the contract (S.F. 86) ; that he later ■ changed his mind about dividing the money in question -vyith the *436Carlton Brothers after he talked with his attorney about the matter. In observing the elementary rule of law previously cited to the effect that in considering the trial court’s findings only the evidence favorable thereto should be considered and all adverse evidence should be disregarded, it must be presumed that the trial court favorably considered the testimony of Robert Carlton to the effect that appellant proposed to him an early settlement of his deceased wife’s estate on the day she was-buried on May 1, 1953. He further testified that about two hours after the burial on the said day, appellant proposed to him that the burial expenses and other debts of the deceased be paid out of the funds of the deceased and the remainder of the money in the bank account be equally divided between appellant and the three appellees, brothers of the deceased, and that he (the witness) communicated appellant’s said proposal to his brother, Aubrey Carlton, and authorized Aubrey Carlton to represent him in preparing and executing a contract making such a disposition of the said money in the bank. Aubrey Carlton also testified that appellant told him before the contract was executed that he was willing to settle the estate of his deceased wife by first paying the burial and other expenses and then dividing the remainder four ways between them and that a contract was accordingly executed on those exact terms. It likewise appears that appellees as well as .appellant signed the contract .in good faith. Appellant has not pleaded or sought to prove fraud, accident, mistake, misrepresentation, undue influence, or any. kind of compulsion.
Much has been written concerning the validity óf contracts such as we have before us.
“It is the policy of the law to discourage litigation; and hence the settlement of controversies by compromise is approved by the courts, being favored both at law and in equity. Contracts of compromise are sustained on the ground that they are not only beneficial in themselves, but conducive to peace and harmony. Consequently, in the case of a right which is doubtful or which is controverted, or where the object is to avoid or settle litigation, a compromise duly executed will be upheld if it appears that the parties have acted in good faith, and there is nothing to show fraud or misrepresentation. 9 Tex.Jur. 335-336, Par. 3, and authorities there cited.
“An agreement entered into upon a supposition of right or of a doubtful right, though it often comes out that the right was on the other side, shall be binding, and the right shall not prevail against.the agreement of the parties, for the right must always be on one side or the other, and therefore the compromise of a doubtful right is a sufficient foundation of an agreement * * * It is clear that when parties enter into a compromise or family arrangement in order to avoid litigation, the question as to whether one of the parties is entitled to certain property or not, such compromise will not be set aside, although it should eventually turn out that the party taking something under the compromise was in reality legally entitled to nothing.” Camoron v. Thurmond, 56 Tex. 22, 34-35.
There is no question but what this was a compromise agreement, based upon “a supposition of right” or “a doubtful right” .in the minds of these ordinary laymen. Such being true, it constitutes “a sufficient foundation of an agreement.”
In the case of Taylor v. Taylor, Tex.Civ.App, 54 S.W. 1039, 1049-50, the court cited with approval, quoted from and followed the rule announced in the Camoron v. Thurmond case. The .court likewise there stated that:
“The written contracts • show an intention to settle all matters of claim set up by the plaintiff; and it is shown that he executed the deed with his eyes open,, having knowledge of the facts; that there was no fraud or suppression *437of facts in the settlement, nor promise of future change or readjustment of .the interests settled.”
In the case of O’Fiel v. Janes, Tex.Civ.App., 269 S.W. 1074, 1082, affirmed, Tex.Com.App., 280 S.W. 163, the court held that an instrument in' controversy-showed a voluntary settlement of the matters in issue, founded upon a valuable consideration and binding upon the parties and cited the Camoron-Thurmond case as one of the authorities in support thereof.
The Camoron v. Thurmond case was likewise cited with approval in the case of J. Kahn & Co. v. Clark, 178 F.2d 111, 114, U.S.Court of Appeals, Fifth Circuit. The court there said in part:
“Where the parties, acting in good faith, settle a controversy, the courts will enforce the compromise without regard to what the result might, or ■ would have been, had the parties chosen to litigate rather than settle.”
In the case of Commercial Credit Co. v. Ramsey, Tex.Civ.App., 138 S.W.2d 191, 194, the court held that:
“The law favors compromises and settlements’ of controversies.”
In. the case of Allstate Insurance Co. v. Lay, Tex.Civ.App., 265 S.W.2d 203, 207, a situation similar to the one at bar was presented. There the court held that “The ‘mutual agreement’ for the compromise is itself a valuable consideration and sufficient to, support the contract, the consider-, ation being the release of the rights of the parties and the avoidance of the expense and annoyance of a suit. 9 Tex.Jur. 340.”
One of the earliest cases to follow these principles Was that of Gilliam v. Alford, 69 Tex. 267, 6 S.W. 757, 759. There the court said in part:
“The rule in such cases is that ‘voluntary settlements are so favored that if a doubt or dispute exists between parties with respect to their rights, and all have the same knowledge, or means of obtaining knowledge, concerning the circumstances involving tho.se rights, and there is no fraud, .misrepresentation, concealment, or other misleading incident, a compromise into which ■ they have voluntarily entered must -stand and be enforced, although the final issue -may be different from that which was anticipated, and although the disposition made by the parties in their agreement may not be that which the court would have .decreed had the controversy been brought before it for decision.’ 2 Pom.Eq.Jur. § 850”.
That case has since .been consistently cited with approval as has the Camoron v. Thurmond case. Certainly in the case at bar there was a contract of compromise settlement between the'parties, all of whom had the same knowledge or means of obtaining such concerning their respective rights.
In the case of Little v. Allen, 56 Tex. 133, 138, the rights of the parties depended upon the construction and validity of a compromise agreement. Plaintiff contended that there was no consideration to support the agreement but the court there held against such contention and said in part that:
“ A mutual agreement for compromise is in itself a valuable consideration.” '
In support of these rules we likewise cite the cases of Ford v. Glaze, Tex.Civ.App., 60 S.W.2d 898; Kluck v. Spitzer, Tex.Civ.App., 54 S.W.2d 1063; Elliott v. Shaffer, Tex.Civ.App., 41 S.W.2d 686; Von Hatzfeld v. Haubert, Tex.Civ.App., 224 S.W. 220, and other authorities cited in these cases. .
Although appellant has not presented any assignment of error to such effect, he .seems to contend that there was not any dispute between the parties but the contract itself states in one place that “a bona fide dispute exists.” In- another place in the contract we find the statement: “ * * * for the purpose of settling a dispute which is agreed to be bona fide, the undersigned parties instruct Friona State Bank to pay * * Appellant, having voluntarily *438signed and acknowledged the contract before a notary containing the language above-quoted, is now estopped from denying the existence of a dispute between the parties in the absence of a claim of fraud, accident, mistake or coercion. In the case of Great Southern Life Ins. Co. v. Heavin, Tex.Com.App., 39 S.W.2d 851, 852, the court held:'
■ “A party to a written settlement may not contend that there was no dispute to compromise, when the instrument itself clearly states the grounds for the settlement and he deliberately signs and acknowledges it. Texas Jurisprudence, par. 29, p. 269, and par. 30, p. 271, and authorities there cited.”
In 9 Tex.Jur. 344, par. 9, we 'find this language:
“A party will not be heard to contend that there was no controversy to compromise where it appears that he. signed an agreement to compromise and acknowledged it before a notary for registration, and it is not shown that he did not know what he was doing or that any actual fraud or coercion was used or that there was a mutual mistake.” ■
In the case of Ferguson v. Ragland, Tex.Civ.App., 243 S.W. 721, 723 (writ refused), a party to a written compromise contended thereafter that no dispute existed. While a jury found to the contrary, it was also held that such party had bound himself contrary to his own contentions by signing the compromise agreement. The court there said 'in part:'
“Appellant on that issue is bound both by the findings of the jury, as well as by his own written declaration. It will be well to remember in such cases the exclamation of old Job, ‘O,. that mine enemy would write a book!’ It is not shown by appellant, that he did not know what he was doing or that any actual fraúd was committed or mutual mistake made in the agreement, or coercion used to compel him to sign his ■ name thereto, which he deliberately signed and acknowledged before his lawyer, a notary public * * *.”
This authority clearly applies to the undisputed facts presented in this case. We likewise cite the case of Phipps v. American Nat. Ins. Co., Tex.Civ.App., 116 S.W.2d 800, 803, in support of such rule.
At any rate, the trial court found that a dispute existed or that the parties were at least in doubt about their respective rights, and such finding is supported by the terms of the contract and by oral testimony of probative force also given in support thereof.
The parties asserted in the contract that there were some disputed facts without reciting the nature of all the facts. The record reveals at least some doubtful facts existing as found by the trial court, as well as some doubtful applications of law from the viewpoint of laymen, such as these men are, who were not familiar with the law governing the disposition of an estate such as existed here. The record reveals that Aubrey Carlton drove from his home at Friona, Texas, to Jayton, Texas, (a distance of some 190 miles) to aid his sister, Mrs. Johnnie Carlton Stewart, and assisted her in .the property settlement between her and appellant on the day they separated, then he took his sister into his home where she lived with him as a member of the family until her death; that he personally paid the funeral expenses, the doctor bill and drug bill when due in the total sum of $952 and waited three months before he was reimbursed therefor; that appellant told his wife on the day of the separation to seek a divorce from him and that if she did not do so, he would seek a divorce from her; but that no action for a divorce was ever filed by either party in so far as the record reflects. The record further reveals that the parties did not know whether or not the deceased had executed a will or what disposition she had made of her estate therein if she had executed a will-. Because of her previous mental illness, they did not know whether or not she had testamentary capacity to execute a will if she had done so. Under the record *439here presented, such may have been a controverted issue if she had executed a will. However, these matters being doubtful, the parties recited in the contract that she died intestate and .were willing to be bound by such a statement. Because of the separation and estrangement of' appellant and his wife and . a property settlement between them on the date of separation, the parties did not know who would be entitled to the estate of the deceased under the facts and circumstances and under the law governing such matters. A question was also raised for the consideration of the parties as laymen as to whether or not Aubrey Carlton would be entitled to be reimbursed out of the estate of the deceased for his assistance rendered her by going to aid her at the time of the separation and by taking her into his own home and caring for her after the separation until her death. Such doubtful questions of law and of facts prompted the parties to execute a compromise agreement in order to avoid litigated controversies. They therefore voluntarily executed such an agreement and acknowledged it separately before a notary. -The record reflects no claim or suggestion of fraud, mistake, misrepresentation, compulsion or concealment of facts in connection with, the execution of the' compromise agreement. ■ For these and other reasons found by the trial court to exist, the courts of Texas will not aid appellant to violate their compromise agreement to “settle such estate amicably and as inexpensively as possible” because “a bona fide dispute existed” between the parties. IS C.J.S., Compromise and Settlement, § 23, pp. 738-739; People’s Ice Co. v. Glenn, Tex.Civ.App., 8 S.W .2d 735, 738, and other authorities there cited; Ross v. Seip, Tex.Civ.App., 154 S.W.2d 958; Scott v. Lott, Tex.Civ.App., 247 S.W. 685; Holmes v. Tyner, Tex.Civ.App., 179 S.W. 887, 894.
In my opinion, the authorities cited in this dissenting opinion control and determine the material issues here presented, and the authorities cited in the majority opinion do not control or in any way determine the material issues here presented.
Under the record presented and the authorities cited, it is my .opinion that the trial court was justified in finding .and concluding that appellant, as well as appel-lees, voluntarily entered into the contract in question in good faith, that the same is a valid contract and that all of them were bound by its terms, which could not be changed or varied by oral testimony. The trial court was also justified in finding and concluding that the terms of the contract was not “a mere promise” of appellant to “make a gift” of money to each of the Carlton 'brothers, appellees herein.
For the reasons stated, it is my opinion that appellant’s points of error ■ should all' be overruled and the judgment of the trial court, should be affirmed.