On Motion for Rehearing.
The motion for a rehearing insistently complains of that portion of the original opinion in which substantially it.is declared that appellant was the distributor for Texas. The statement is challenged with the assertion that the record does not support it. The proof does not sustain the conclusion that appellant was distributor for the entire state, and the language of the opinion in respect to this ¿s misleading for the reason that it leads to the conclusion that the proof shows appellant to be distributor for the whole state. However, the inaccuracy of statement pointed out is immaterial for the reason that it inheres in language intended to disclose that appellant was in a position to know, and that it was to its interest to know, the market value of Cole automobiles in Eort Worth; and the proof does support the conclusion that appellant was a distributor for the portion of Texas wherein and as to which the parties were dealing with each other. This being so, the opinion of the court is not to be affected by modifying the language used so as to state that, while the proof does not comprehend the expansive territory ascribed to appellant as a distributor, yet it does reveal that appellant was a distributor which operated in Fort Worth, and for that reason was in a position to know the market value of the articles it supplied at that point.
Appellant construes the opinion to the effect that it relieves appellee, the plaintiff below, of the requirement to prove his allegation of market value and imposes it upon appellant. Of course, the duty to prove market value rested upon appellee, and the opinion does not declare otherwise in stating that appellant’s silence and failure to dispute appellee’s statement of what the market value was strengthened the probative force of appellee’s statements.
The motion for a rehearing is overruled.