On Motion for Rehearing.
[3] As will be seen by reference to the findings of fact by the trial court, set out in our opinion herein, the court, in effect, found that the' trustee, Atmar, never accepted the offer of Shupak, and reported to Hutcheson & Hutcheson that he had sold the 875 acres of land at the price and upon the terms stated, and called upon them to make their election to accept the proceeds of such sale, and credit the same on the judgment, or to take said land at the price offered, as under the terms of the agreed judgment he might have done in the exercise of his discretion, and in the absence of fraud. The finding of the trial court is, in effect, that there was no contract of sale, but only a report of an offer, as to which the trustee sought the advice of Hutcheson. The effect of our findings of fact is that these findings of the trial court were not supported by the evidence. In this, upon further examination of the record, we have concluded that we were in error. If there is any competent evidence to sustain the findings of fact by the trial court, it is our duty to sustain the same. The issues of fact are for the trial court. The jury, if there be one, and, if not, the judge trying the case, are the exclusive judges of the facts proven, and their finding will not be reviewed by an appellate court, unless it becomes a matter of law by reason of such finding being without any legal testimony to sustain it, or so overwhelmingly against the preponderance of the testimony as to amount to a lack of testimony to sustain such finding. This proposition is too well established to require the citation of authorities in its support.
[4] On April 12, 1915, the trustee wrote to Oapt. Hutcheson, senior member of the law firm of Hutcheson & Hutcheson, as follows:
“Oapt. J. C. Hutcheson, Houston, Texas-Dear Sir: I am offered by Mr. John Shupak, a real estate man here, $45 per acre for 875 acres of the H. G. Williams land which is involved in the AVilliams-Bvans matter. The tract of land the party wants to buy is as follows: 369 acres of block No. 6, and 2SO acres of block No. 8, said blocks being the original subdivisions of the S. W. ⅛ of the I. Chapa league and 220 acres of the G. C. Shaw survey. Mr. Shupak offers to pay one-third cash, and the balance on or before ten years after date’, interest at the rate of 6 per cent, on deferred payments. Kindly advise me your opinion in the matter and authorize me to close the deal, and oblige,
“Tours very truly, [Signed] L. P. Atmar.”
To this letter Oapt. Hutcheson replied, expressing his surprise that an offer of $45 an acre should be made for the land, saying that it looked to him like a crazy proposition, and inquiring as to Shupak, and closing his letter as follows:
“In the meantime, write me what you think of the proposition, why the man makes such an immense offer at this time, and why he delays the balance of the payment so long.”
*187To this Atmar replied as follows:
“April 26, 1915.
“Capt. J. C. Hutcheson, Houston, Texas— Dear Capt: Your favor of the 24th inst. received, and I am advised that Mr. W. O. Evans is giving to Mr. Shupak the sum of $13,125 to make the cash payment on the 875 acres of land that said Shupak is trying to buy from the Williams estate, and that it is Mr. Shupak’s idea to get a bunch of Bohemians on the land, giving them what they make for the first two or three years, and in that way get it in a good state of cultivation, and by these means enabling him to then sell the lands at advanced prices. Mr. Shupak doesn’t own any considerable property, but he has been successful in colonizing a good many Bohemians in this section of the country. I haven’t a copy of the decree of the court at hand, but from memory I will state that I think it bears date of May 11, 1914. You will kindly advise me when you have had a report from Mrs. L. E. Williams, and oblige.
“Yours very truly, [Signed] L. P. Atmar.”
Capt. Hutcheson replied to this letter, declining to advise the deal, stating, among other things:
“That if the sale had been made under the terms of the judgment, Mrs. Williams would have received about $13,125 in cash, and she would credit, not only this $13,125 on the judgment, but also the balance of $26,150 on account of these notes, made on an exaggerated scale of prices for the land, and the vendor’s lien on which it should operate, and they would not possibly have realized more, according to my information as to the lands, than $7,500 to $10;000 on the market, if she had really been selling it, and would have had an excess judgment against a pauper for the whole value of the notes for Evans’ debt, and he would have had his judgment canceled, all of which would have been an iniquity which it is impossible for me to conceive of.”
On May 11, 1915, W. O. Evans wrote the trustee, demanding all of the land except 875 acres be deeded to him. On the same day the trustee wrote to Capt. Hutcheson, informing him of this demand, and that one-third of the purchase money had been tendered by Shupak at the time he offered to purchase the land. To this Capt. Hutcheson replied, quoting from the first letter written him by Atmar, and saying:
“Now there is no allusion to anything but an oiler by him, and no recital of a tender, nor is there any statement that you accepted the offer or the money subject to my approval, because in your letter you asked my views about it, and stated nothing that you had done, other than receive their offer”
—and asking for further information with reference to the tender of one-third of the purchase money, and offering to sell to Mr. Shupak the 875 acres for the cash sum of $13,125, without requiring him to execute any note for the balance of the purchase money, $26,150, and suggesting that the matter be taken up with Judge Wilcox, for him to interpret the judgment and the effect of this offer. This offer to sell the 875 acres was based on the theory that, the time having expired in which the trustee was to sell the lands, they became the property of Mrs. Williams. To this latter suggestion the trustee, Atmar, agreed.
Thereupon Evans filed suit in the district court of Trinity county to require the trustee to deed him the entire tract of land, less the 875 acres, making Mrs. Williams and Hutch-eson & Hutcheson parties to the suit. Hutch-eson & Hutcheson filed pleas in abatement for all parties. Mr. Palmer Hutcheson, a member of the law firm of Hutcheson & Hutcheson, went to Groveton, the county seat of Trinity county, to present the pleas in abatement, and prepared an answer for Mr. Atmar, to be filed in the case, should the pleas in abatement be overruled. This answer was submitted by Mr. Hutcheson to Mr. Atmar, and Mr. Palmer Hutcheson testified on the trial of this ease with reference to the same as follows:
“I went to Mr. Atmar’s office and explained to Mm that it was possible that the pleas might be overruled, and that, if so, it would be necessary to file answers at once for all defendants, to prevent default from being taken. * ⅜ ⅜ Mr. Atmar took the pleadings, and saw that the first two paragraphs were either copies literally or in substance of the plea in abatement, and read the third paragraph in my presence, and considered it before me, for some little time, and then made the statement that he did not like in this answer the statement ‘that the said lands only had a reasonable market value of approximately $4 per acre.’ I then took a pencil and put a parenthesis around that, and asked him if the balance was satisfactory. He then looked at it more carefully, if possible, and said that he preferred not to make the statement in the answer ‘that the price offered by the said Shupak was far in advance of the actual value of the lands involved,’ which immediately precedes the statement that they were only worth about $4, for the purpose of maintaining, as much as possible, a neutral attitude in this ease, and merely presenting the facts as to what he had done, without going into any question as to the value of the lands. I said, ‘All right, Mr. Atmar-,’ and then extended my paragraph — my parenthesis — so as to include the words ‘but he alleges that the price offered by the said Shupak was far in advance of the actual value of the lands involved.’ I then asked Mr. Atmar if that was satisfactory, and he said that it was. I said, ‘Now, Mr. Atmar, those pleas have to be ruled on, and as this is marked up some, I will not ask you to sign this in its present form, unless it becomes necessary at the time the pleas are overruled; you are right here, and I can get you to sign this, if I don’t get time to have it recast; if the pleas are sustained, the appearance day is off a month, and I will send you the answer, with corrections made, at my leisure,’ to which he assented at the time.”
This answer, after striking out that part objected to by Mr. Atmar, contained the following:
“With reference to the allegations of plaintiff’s petition as to an offer of purchase of certain lands by John Shupak, this defendant says it is true that such offer was made, as described in plaintiff’s petition, but states that he never, in the exercise of his discretion or otherwise, approved the offer made by said Shu-pak, and never agreed to sell or sold the lands offered to be purchased, and that he merely submitted said offer to the firm of Hutcheson & Hutcheson, as provided by the decree, who rejected the same, all of which is fully evidenced by the correspondence passing between the parties hereinbefore referred to, and which represent the only negotiations between said parties, ma*188terial to and relevant to said proposed offer of purchase.”
Mr. Palmer Hutcheson further testified:
“Now, at the same time that I was in conversation with Mr. Atmar, I began discussing with him the question of the values of these lands independently of what he was willing to say in his answer, and I asked Mr. Atmar whether or not he actually thought those lands worth what was offered; he said he did not. I then asked Mr. Atmar what he thought was the value of those lands, and, after some meditation on the thing, he said he thought they were worth about $15 per acre; that is, the lands offered to be purchased by Shupak. I then said: ‘Well, Mr. Atmar, regardless of what is the legal effect of the depreo, if this decree had meant, and you had known that it meant, for you to pass on the matter in the exercise of your discretion, and that you should only submit to the firm such matters as you yourself approved of, or they would die a death without ever being submitted to the firm, what would you have done?’ He said, T could not have approved it.’ I said, ‘Could you, in justice to Mrs. Williams — you represent both parties — could you, in connection with your duties under this decree, have approved it, and would you?’ and he said, ‘No.’ ”
Mr. Palmer Hutcheson testified that he explained to Mr. Atmar that, in the event the pleas in abatement were overruled, it might be necessary to file an answer immediately to prevent judgment by default, and, if so, he would file for Mr. Atmar the answer which he had drawn with the erasures therein; but, if it was not necessary to file the same at that time, he would rewrite it, leaving out the objectionable part, to which Mr. Atmar agreed.
We think the testimony above set out is sufficient to sustain the finding of the court that there.was, in fact, no contract of sale made to Shupak, but only an offer, the acceptance of which depended on its being approved by Hutcheson & Hutcheson.
For the reasons stated, the motion for rehearing is granted, and the judgment of the trial court is affirmed.
Motion granted. Judgment affirmed.