On Motion for Rehearing.
Both sides have filed motions for rehearsing, and we will briefly discuss them in their order.
Appellant insists that we should not only reverse the judgment of the trial court, but should also render judgment in his favor. He also asks that we rule clearly and definitely upon the question whether or not ap-pellee can rely, as a separate and distinct cause of canceling the deed in suit, upon the alleged false parol promise to reconvey the land obtained from appellee. In this latter request the appellee also joins.
A careful consideration of the grounds for rehearing urged by appellant has convinced us that we should not accede to the request to reverse and render the case. We do not think it is necessary to add anything to the reasons assigned in our original opinion for this conclusion.
As to the other point, we were under the impression and still think we expressed our views clearly and unequivocally upon the question. However, in deference to the request of both parties, we will again state our views, and will expressly rule upon that point.
We hold that appellee cannot rely, as a separate and djstinct cause for canceling the deed in suit, alone upon the alleged false parol promise to reconvey to appellee the land described in the deed. So considered, it is clearly within the statute of frauds. The statute has been expressly invoked as a defense, and we think it is applicable, in so far as such parol promise is relied upon solely as a distinct ground for rescission. The promise was voidable, at the option of appellant, and it is immaterial whether the promise was made with or without intention to perform. However, in so ruling we do so only for the guidance of the trial court in the event of another trial. We adhere to our views that under the entire pleadings the alleged oral promise may be relied upon by appellee, not as an independent ground for rescission, but in connection with the other fraudulent representations, and as a part of an alleged fraudulent scheme by appellant to induce the conveyance of appellee’s land.
We have given careful consideration to the other grounds contained in appellant’s motion for rehearing, which we believe have been substantially discussed in the original opinion, and which it is not deemed necessary to repeat.
In appellee’s motion for rehearing he complains of our finding that he “delayed to *803seek a rescission of the sale and the cancellation of the deed until such time as that, as the evidence strongly tends to show, it would be inequitable and unjust to appellant to apply the remedy of rescission.” He also challenges our finding “that the great preponderance of the evidence tends strongly to show waiver” of the fraud. We have concluded that this criticism is well taken, and that we have fallen into error in making these findings. These issues were not submitted to the jury, and under our statute it must be presumed, in support of the judgment, that the trial court impliedly found in favor of appellee upon these questions. A more careful consideration of the record has convinced us that we did not give sufficient importance to the implied findings of the court, especially in view of the relationship and close confidential relations between the parties, the testimony with reference to appellee’s attempts to procure a voluntary rescission, and the fact that the trial court had before it the witnesses and was in a position to observe their demeanor, manner of testifying, character, and credibility. We are especially convinced that we should not have made the statement in the opinion “that the great perponderance- of the evidence tends strongly to show that the assertion of the remedy was an afterthought, induced by the oil excitement prevailing in Brown county about the time of the filing of the suit.” In view of the conflicting evidence and the testimony for appellee, offered to excuse the failure to sooner bring the suit, we think this statement was unwarranted, and that it would be unjust to appellee not to rétract it. The writer feels a peculiar responsibility for this statement, and gladly joins in its withdrawal.
The sustaining of these grounds in appel-lee’s motion does not, however, in our opinion, lead to the affirmance of the case. We pointed out in our opinion that it was error for the trial court to permit the mother of appellant and appellee to state that the family thought appellant had robbed her son. We also held that the trial court should have permitted appellant to state, at least generally, the acts claimed to have been done by him in lending and advancing the money to appellee, as tending to show a feeling of affection and kindness towards appellee prior to the transaction in question. We adhere to the view that these were errors of law committed by the trial court to the prejudice of appellant. We are unable to say that they constituted harmless error, and therefore we conclude that these rulings alone require a reversal of this case.
With the modifications above stated, we adhere to our original opinion, and overrule both motions.
Motions overruled.