On Motion for Rehearing.
In stating the nature of the ease and result of trial, in our original opinion we made the statement that the trial court instructed the jury to return a vérdiet for the defendants, and it was the contention of appellant that the evidence was conflicting as to time of the tender of performance of the contract, and therefore the court erred in not submitting that issue to the jury.
Appellant has filed his motion for rehearing, and calls our attention to the fact that the record shows that the case'was tried before the court without a jury and that our statements with referencé to a jury are erroneous.
*454The writer of this opinion, as well as of the original opinion, must admit that he erred in stating that the case was tried before a jury and in stating that appellant complained of the action of the court in not submitting any issue to the jury. As a matter of fact, there was no jury in the case. As a matter of fact, it was insisted by appellant that the undisputed evidence showed that a tender of performance of the option contract was made to Gifford on the 31st day of July, before the time in which he might perform the same had 'expired and before Gifford reserved the rents. Just what induced the writer to make the erroneous statements with reference to a jury is unexplainable. But, since any conclusion which might have been based upon such statements could not have, in fact did not, in any wise affect the determination of the issue involved, they furnish no reason for setting aside the judgment rendered. The fact that the finding of facts was left to the trial court and not to the jury strengthens our conclusions in that, if there was a conflict of evidence on the sole issue, it was the province of the trial judge to decide that issue.
What we intended to hold in our original opinion was that the undisputed evidence shows that Gifford notified Armstrong and his proffered purchaser that he reserved the rents before either of said parties or any one for them made an unconditional tender of performance of the contract.
Since our attention is now called to the fact that the cause was tried to the court, we now hold that the evidence was amply sufficient to support the conclusion of the trial court that Gifford had reserved the rents before appellant or any one for him made an unconditional tender, of the performance of the option contract according to its terms.
Having made the above explanations, the motion for rehearing is refused.
Refused.