On Motion for Rehearing.
Upon a reconsideration of the- record, called to our attention by appellees in their motion for rehearing, we find that the reasons stated by us in the concluding paragraph of above opinion are not supported by the assignments of errors presented by appellant.
■ Appellees pleaded the alleged deed, dated January 19, 1939, as a release or.settlement of all claims of appellant against the estate of J. C. Humphreys. To avoid legal effect of such deed so asserted, appellant, in a supplemental petition, pleaded that at the time he executed the deed he was without any knowledge of the alleged agreement ■ between his mother - and J. C. Humphreys- to execute reciprocal wills, and said J. C. Humphreys concealed such agreement- in violation of a duty to - deal fairly and honestly with appellant under the fiduciary relationship- that then existed between them. This defensive claim of appellant asserted in his supplemental petition was embraced in special issues Nos. 17 to 20, inclusive. They were not answered, since they were conditionally submitted to be answered only in event the jury to issue No. 8 answered “Yes.” No exception was taken to this conditional submission of issues Nos. 17 to 20, inclusive. No request was made for an unconditional submission of same. No assignment of error attacks the action of the trial court in submitting above issues conditionally or for failure to submit same unconditionally.
In view of the foregoing condition of the record, appellant waived- his right to have the jury pass upon his claim that he was without knowledge of the reciprocal will agreement. Ormsby v. Rátcliffe, 117 Tex. 242, 1 S.W.2d- 1084; 41 T.J. 1073, Sec. 257, and authorities there cited. And this court was without jurisdiction to reverse -the cause premised upon the reasons assigned by us in the concluding paragraph of the original opinion. Quoting from White v. Glengarry Oil Co., Tex.Com.App., 156 S.W.2d 523, 524: .“It .is firmly settled that, an unassigned error, unless it be fundamental in character, .does not constitute a legally sufficient basis for the exercise, by the Court of Civil Appeals, of jurisdiction to revise or reverse a trial court’s judgment.” See also Stillman v. Hirsch, 128 Tex. 359; 99 S.W.2d 270.
In appellant’s exceptions directed to issues Nos. 16, 18, 19 and 20, brought forward. in his motion for new trial, being Nos. 72 to 78 in his assignments of error, and in his assignments of error 89 and 91 grounded upon his motion for judgment, and his attack upon the sufficiency of the evidence to support the jury’s finding to issue No. 22, he asserts that the undisputed evidence is to the effect that at the time he executed the deed (release) he was without knowledge of the reciprocal will agreement of his mother and J. C. Humphreys, and the latter violated his fiduciary duty in not informing 'appellant of such reciprocal- will agreement. And therefore, quoting from the brief, “the purported settlement under the provisions of the deed was null and void” and “did not. bar him from recovering the property covered by the deed.”
Appellant testified that he did not hear of or know of his mother’s and J. C. Humphreys’ reciprocal will agreement until a few days after the latter’s death; and that no one had informed him of such alleged agreement prior to J. C. Humph-reys’ death. On cross-examination, appellant was asked: “You mean to tell the jury your mother lived from June 1, 1931, down to March 20, 1935, and never told you about that ?” He answered: “She did not.” Appellant’s wife was present in the negotiations between appellant and J. C. Humphreys which led up to the execu*311tion of the deed (release) arid she testified that -in these conversations J. C. Humphreys made no mention of the alleged réciprocal will agreement and that she never heard of such reciprocal agreement until after J. C. Humphreys’ death. R. B. Howell, a prominent attorney with whom J.' C. Humphreys and appellant consulted preparatory to drawing the" deed and who prepared the deed and took the acknowl-edgements, testified that the alleged reciprocal will agreement was not mentioned by J. C. Humphreys or appellant in any of the consultations they had with him. In brief, the foregoing is the evidence of the only witnesses who testified in regard to appellant’s claim that he was without knowledge of the reciprocal will agreement at the time he executed the deed. The evidence reflects friendly and intimate relations through the years between appellant and J. C. Humphreys and that this continued up until about the time J: C. Humphreys’ second marriage. The evidence, which will not be further detailed, reflects extensive business dealings between appellant and J. C. Humphreys, and the testimony of Mr. Howell is exhaustive covering the negotiations between the parties leading to and in the execution of the deed.
The testimony of the ‘ witnesses, the deed and its provisions, the relationship, association and business dealings, and all the other facts and circumstances detailed above and in the original petition were before the jury to be weighed by them in their consideration of No. 22. In weighing the foregoing, the jury reached the conclusion adverse to appellant’s contentions presented in above assignments of error. We are unprepared to hold as a matter of law that this finding is without support in the evidence. As stated in Western Assur. Co. v. Busch, Tex.Civ. App., 203 S.W. 460, “The test as to the conclusiveness of the evidence is, Could-it reasonably be supposed that the minds of unprejudiced men of ordinary intelligence might differ about it, either as to the weight to be given to the testimony or to the; deduction drawn therefrom?” See also Lee v. International & G. N. Ry. Co., 89 Tex. 583, 36 S.W. 63; Joske V. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063; 17 T.J. p. 926, Sec. 418; 41 T.J. p. 1029, Sec. 229, and authorities there cited; Transcontinental Ins. Co. v. Frazier, Tex. Civ.App., 60 S.W.2d 268; Stone v. Wylie, Tex.Com.App., 34 S.W.2d 842, 843.
Preriiised upon the jury’s findings to No. 22 and the observations above stated, our former judgment ordering a reversal of this cause is set aside and the judgment of the trial court is now ordered affirmed.