White v. Hughs

ON MOTION FOR REHEARING

On rehearing, White urges that Myrl Wood admitted that she was paid in full for the 1987 taxes. From Wood’s deposition, the following statement was read into evidence: “I periodically collected enough money to pay the taxes.” However, Wood later testified that White had not complied with all the terms of the contract of sale because he had not paid enough money for the 1987 taxes.

When testimony of the same witness raises and supports a determinative issue of fact but further testimony denies the existence thereof or removes support earlier supplied by that witness, the presented matter must be resolved by the finder of fact. Proctor v. Southland Life Ins. Co., 522 S.W.2d 261 (Tex.Civ.App.—Fort Worth 1975, writ refd n.r.e.).

The trial court, acting as fact finder, found that “White did fail to pay, in accordance with Paragraph 7 of the Contract of Sale, ad valorem taxes due for 1987.” The court further found that Wood had paid the ad valo-rem taxes due by her personal check. Accordingly, the finder of fact has resolved this matter, and White’s contention that only one outcome was possible from the evidence presented is not supported by the record.

The motion for rehearing is overruled.