On Motion for Rehearing.
In his motion for rehearing appellant insists that we erred in not reversing the judgment of the District Court upon the ground that it was not shown that plaintiffs furnished defendant with abstracts of title to their respective properties and were, therefore, not in position to rescind and secure cancellation of the deeds and sales contracts. Our former opinion quotes verbatim the statement made by appellant in his brief (p. 20) as to what was “the main issue and practically the only issue” in the case. Appellant likewise asserted in his brief (p. 12) that the uncontro-verted evidence showed that appellant and appellees “mutually waived the stipulations and provisions in the several contracts requiring the patties to furnish to the other respectively abstract or abstracts,” etc. The jury found that appellees did not waive the furnishing of abstracts. Appellant did not request submission of an issue as to whether he had waived this requirement, though it úraS a ground of defense pleaded by appellant. In view of these assertions of appellant and this method of trial, illustrative Of his position as to abstracts of title eon-tracted to be furnished .by appellees, we think the ground of error now urged as to this feature of the case and not urged in appellant’s brief should not be sustained. Lauderdale v. Lee, Tex.Com.App., 276 S.W. 660; Jones v. Clark, Tex.Civ.App., 30 S.W.2d 577.
Appellant complains that we considered as evidence in the case the two contracts between appellant and G. Bedell Moore referred to in our opinion. The complaint is -just. These instruments constituted no párt of the evidence and should not have been considered, except to determine whether their exclusion was prejudicial to appellant. However, excluding these contracts from consideration, we think the evidence justified the jury’s.finding.
• The motion for rehearing is overruled.