On Motion for Rehearing.
[10] Appellee in its motion for rehearing alleges that we were in error as to some of our findings of fact, and cites testimony from the record tending to support its contention in this regard. This testimony was not referred to in appellee’s brief. Our conclusions were based on statements in appellant’s brief which were not controverted in the appellee’s brief, and therefore we assumed that they were correct, as we were authorized to do under rule 41 (142 S. W. xiv) for the government of the Courts of Civil Appeals. But as we think that in any event this ease should be reversed and remanded on account of errors in the court’s charge, our findings of fact are immaterial. The case will be tried upon the testimony adduced, upon another trial, and not upon the facts established in the former trial.
The motion for rehearing is overruled.