On Motion for Rehearing.
"We quote from the motion filed by Blalock Lumber Company: “-At the outset we desire to say that if this Court’s conclusion of *800law, that the trial court’s erroneous statement of the law, to the effect that the title to the cement passed at the time of the sale, is binding on this Court, though his fact findings show that it did not pass, then this court’s disposition of this case is correct.”
In this connection two contentions are urged:
(1) That the eighth finding of fact, which reads, “I find that title to said cement passed out of plaintiff, and into Lawson-Richards, Inc., at the time of the sale, to-wit: March 8, 1928,” was a mere conclusion of law and not a fact, finding.
(2) That the first, second, and third findings-of fact -embody every essential element of actionable fraud, and therefore establish as a fact that the title did not pass.
We overrule the first contention. The eighth finding is included in the court’s findings of fact as a separate and distinct fact finding. It necessarily includes other findings essential to the passing of the title, and therefore excludes actionable fraud. This is in effect the holding in Cockrell v. Steffens (Tex. Civ. App.) 284 S. W. 608, cited in our original opinion, and by analogy is the holding of the Supreme Court in the quotation embodied in Brewster v. Forney, 223 S. W. 175, 177.
The substance of the pertinent portions of the first, second, and third findings is as follows:
(1) That, when Lawson ordered the cement from Blalock Company, he “represented to Said Blalock Company that the said cement was needed immediately to fill a contract, which Lawson-Richards, Inc., had to furnish cement on a building job or building known as the Richey Tabernacle, a building then under construction in the city of Houston; and thaj it would pay the Blalock Lumber Company therefor out of the money received from the sale of said cement, and that said bill would be discounted under the 10-day discount privilege.”
(2) “That Blalock Lumber Company, in pursuance thereof did, on March 8, 1928,” deliver the cement to Lawson-Richards, Inc.
(3) “That said Lawson-Richards, Inc., did not, in fact, ¡have a contract to furnish said cement to the said Richey Tabernacle.”
In our original opinion we held that there was no finding that Blalock Company relied upon the representation in finding No. 1 above. It is contended that the expression ■ “in pursuance thereof” in the second finding embodies a finding to the effect that the representation was relied upon. After a careful examination of the subject and such authorities as we have found, we have reached the conclusion that this contention is correct.
The adjective “pursuant” is defined in the standard dictionaries as follows:
Webster: “Acting or done in consequence or in prosecution (of anything).”
Funk & Wagnalls: “Done in accordance with or by reason of something.”
• Century: “Done in consequence of or in prosecution of something.”
See, also, in this connection, authorities cited in 31 C. J. p. 361, and notes 48 and 49; 4 Words and Phrases, First Series, page 3480; 2 Words and Phrases, Second Series, page 992.
If we substitute for “in pursuance thereof” either “in consequence thereof” (Webster and Century), or “by reason thereof” (Funk & Wagnalls), we have a finding that the representation was made, and that in consequence thereof, or by reason thereof, the cement was delivered. Either of these expressions taken in connection with the context seems to us equivalent to “in reliance thereon.”
We have therefore a general finding that the title did pass, and therefore there was no actionable fraud; and at the same time specific fact findings embodying all the elements of actionable fraud. The two findings are therefore contradictory, and will not support a judgment". The holding in Brewster v. Forney, above, is directly in point.
If, therefore, we are correct in our construction of the court’s findings, it will be necessary to remand the entire case for a new trial, since it conclusively appears, both from the evidence and the court’s findings of fact, that the Macatees were not innocent purchasers ; they having taken the cement as a credit upon a pre-existing debt.
' Our former judgment is set aside, the trial court’s judgment is reversed, and the cause remanded for a new trial.
Motion granted; reversed and remanded.